2129 01 02 03 04 05 STATE WATER RESOURCES CONTROL BOARD 06 07 08 09 10 PUBLIC HEARING 11 12 13 13 1998 BAY-DELTA WATER RIGHTS HEARING 14 15 16 17 HELD AT: 18 BONDERSON BUILDING 18 901 P STREET 19 SACRAMENTO, CALIFORNIA 19 20 20 21 21 WEDNESDAY, AUGUST 5, 1998 22 9:00 A.M. 22 23 23 24 24 Reported by: ESTHER F. WIATRE 25 CSR NO. 1564 25 2130 01 APPEARANCES 01 BOARD MEMBERS: 02 02 JOHN CAFFREY, COHEARING OFFICER 03 JAMES STUBCHAER, COHEARING OFFICER 03 JOHN W. BROWN 04 MARY JANE FORSTER 04 MARC DEL PIERO 05 05 STAFF MEMBERS: 06 06 WALTER PETTIT, EXECUTIVE DIRECTOR 07 VICTORIA WHITNEY, CHIEF BAY-DELTA UNIT 07 THOMAS HOWARD, SUPERVISING ENGINEER 08 08 COUNSEL: 09 09 WILLIAM R. ATTWATER, CHIEF COUNSEL 10 BARBARA LEIDIGH 10 11 11 12 12 13 13 14 14 15 15 16 16 17 17 18 18 19 19 20 20 21 21 22 22 23 23 24 24 25 25 2131 01 REPRESENTATIVES 01 02 PRINCETON CODORA GLENN IRRIGATION DISTRICT, et al.: 02 03 FROST, DRUP & ATLAS 03 134 West Sycamore Street 04 Willows, California 95988 04 BY: J. MARK ATLAS, ESQ. 05 05 JOINT WATER DISTRICTS: 06 06 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON: 07 P.O. BOX 1679 07 Oroville, California 95965 08 BY: WILLIAM H. BABER III, ESQ. 08 09 CALIFORNIA SPORTFISHING PROTECTION ALLIANCE: 09 10 ROBERT J. BAIOCCHI 10 P.O. Box 357 11 Quincy, California 11 12 BELLA VISTA WATER DISTRICT: 12 13 BRUCE L. BELTON, ESQ. 13 2525 Park Marina Drive, Suite 102 14 Redding, California 96001 14 15 WESTLANDS WATER DISTRICT: 15 16 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 16 400 Capitol Mall, 27th Floor 17 Sacramento, California 95814 17 BY: THOMAS W. BIRMINGHAM, ESQ. 18 18 THE BAY INSTITUTE OF SAN FRANCISCO: 19 19 GARY BOBKER 20 55 Shaver Street, Suite 330 20 San Rafael, California 94901 21 21 CITY OF ANTIOCH, et al.: 22 22 FREDERICK BOLD, JR., ESQ. 23 1201 California Street, Suite 1303 23 San Francisco, California 94109 24 24 25 25 2132 01 REPRESENTATIVES 01 02 LEAGUE OF WOMEN VOTERS: 02 03 ROBERTA BORGONOVO 03 2480 Union Street 04 San Francisco, California 94123 04 05 UNITED STATES DEPARTMENT OF THE INTERIOR: 05 06 OFFICE OF THE SOLICITOR 06 2800 Cottage Way, Room E1712 07 Sacramento, California 95825 07 BY: ALF W. BRANDT, ESQ. 08 CALIFORNIA URBAN WATER AGENCIES: 08 09 BYRON M. BUCK 09 455 Capitol Mall, Suite 705 10 Sacramento, California 95814 10 11 RANCHO MURIETA COMMUNITY SERVICES DISTRICT: 11 12 MCDONOUGH, HOLLAND & ALLEN 12 555 Capitol Mall, 9th Floor 13 Sacramento, California 95814 13 BY: VIRGINIA A. CAHILL, ESQ. 14 14 CALIFORNIA DEPARTMENT OF FISH AND GAME: 15 15 OFFICE OF ATTORNEY GENERAL 16 1300 I Street, Suite 1101 16 Sacramento, California 95814 17 BY: MATTHEW CAMPBELL, ESQ. 17 18 NATURAL RESOURCES DEFENSE COUNCIL: 18 19 HAMILTON CANDEE, ESQ. 19 71 Stevenson Street 20 San Francisco, California 94105 20 21 ARVIN-EDISON WATER STORAGE DISTRICT, et al.: 21 22 DOOLEY HERR & WILLIAMS 22 3500 West Mineral King Avenue, Suite C 23 Visalia, California 93291 23 BY: DANIEL M. DOOLEY, ESQ. 24 24 25 25 2133 01 REPRESENTATIVES 01 02 SACRAMENTO MUNICIPAL UTILITY DISTRICT: 02 03 LESLIE A. DUNSWORTH, ESQ. 03 6201 S Street 04 Sacramento, California 95817 04 05 SOUTH SAN JOAQUIN IRRIGATION DISTRICT, et al.: 05 06 BRAY, GEIGER, RUDQUIST & NUSS 06 311 East Main Street, 4th Floor 07 Stockton, California 95202 07 BY: STEVEN P. EMRICK, ESQ. 08 08 EAST BAY MUNICIPAL UTILITY DISTRICT: 09 09 EBMUD OFFICE OF GENERAL COUNSEL 10 375 Eleventh Street 10 Oakland, California 94623 11 BY: FRED S. ETHERIDGE, ESQ. 11 12 GOLDEN GATE AUDUBON SOCIETY: 12 13 ARTHUR FEINSTEIN 13 2530 San Pablo Avenue, Suite G 14 Berkeley, California 94702 14 15 CONAWAY CONSERVANCY GROUP: 15 16 UREMOVIC & FELGER 16 P.O. Box 5654 17 Fresno, California 93755 17 BY: WARREN P. FELGER, ESQ. 18 18 THOMES CREEK WATER ASSOCIATION: 19 19 THOMES CREEK WATERSHED ASSOCIATION 20 P.O. Box 2365 20 Flournoy, California 96029 21 BY: LOIS FLYNNE 21 22 COURT APPOINTED REPS OF WESTLANDS WD AREA 1, et al.: 22 23 LAW OFFICES OF SMILAND & KHACHIGIAN 23 601 West Fifth Street, Seventh Floor 24 Los Angeles, California 90075 24 BY: CHRISTOPHER G. FOSTER, ESQ. 25 25 2134 01 REPRESENTATIVES 01 02 CITY AND COUNTY OF SAN FRANCISCO: 02 03 OFFICE OF THE CITY ATTORNEY 03 1390 Market Street, Sixth Floor 04 San Francisco, California 94102 04 BY: DONN W. FURMAN, ESQ. 05 05 CAMP FAR WEST IRRIGATION DISTRICT, et al.: 06 06 DANIEL F. GALLERY, ESQ. 07 926 J Street, Suite 505 07 Sacramento, California 95814 08 08 BOSTON RANCH COMPANY, et al.: 09 09 J.B. BOSWELL COMPANY 10 101 West Walnut Street 10 Pasadena, California 91103 11 BY: EDWARD G. GIERMANN 11 12 SAN JOAQUIN RIVER GROUP AUTHORITY, et al.: 12 13 GRIFFTH, MASUDA & GODWIN 13 517 East Olive Street 14 Turlock, California 95381 14 BY: ARTHUR F. GODWIN, ESQ. 15 15 NORTHERN CALIFORNIA WATER ASSOCIATION: 16 16 RICHARD GOLB 17 455 Capitol Mall, Suite 335 17 Sacramento, California 95814 18 18 PLACER COUNTY WATER AGENCY, et al.: 19 19 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 20 400 Capitol Mall, 27th Floor 20 Sacramento, California 95814 21 BY: JANET GOLDSMITH, ESQ. 21 22 ENVIRONMENTAL DEFENSE FUND: 22 23 DANIEL SUYEYASU, ESQ. 23 and 24 THOMAS J. GRAFF, ESQ. 24 5655 College Avenue, Suite 304 25 Oakland, California 94618 25 2135 01 01 02 REPRESENTATIVES 02 03 CALAVERAS COUNTY WATER DISTRICT: 03 04 SIMON GRANVILLE 04 P.O. Box 846 05 San Andreas, California 95249 05 06 CHOWCHILLA WATER DISTRICT, et al.: 06 07 GREEN, GREEN & RIGBY 07 P.O. Box 1019 08 Madera, California 93639 08 BY: DENSLOW GREEN, ESQ. 09 09 CALIFORNIA FARM BUREAU FEDERATION: 10 10 DAVID J. GUY, ESQ. 11 2300 River Plaza Drive 11 Sacramento, California 95833 12 12 SANTA CLARA VALLEY WATER DISTRICT: 13 13 MORRISON & FORESTER 14 755 Page Mill Road 14 Palo Alto, California 94303 15 BY: KEVIN T. HAROFF, ESQ. 15 16 CITY OF SHASTA LAKE: 16 17 ALAN N. HARVEY 17 P.O. Box 777 18 Shasta Lake, California 96019 18 19 COUNTY OF STANISLAUS: 19 20 MICHAEL G. HEATON, ESQ. 20 926 J Street 21 Sacramento, California 95814 21 22 GORRILL LAND COMPANY: 22 23 GORRILL LAND COMPANY 23 P.O. Box 427 24 Durham, California 95938 24 BY: DON HEFFREN 25 25 2136 01 01 02 REPRESENTATIVES 02 03 SOUTH DELTA WATER AGENCY: 03 04 JOHN HERRICK, ESQ. 04 3031 West March Lane, Suite 332 East 05 Stockton, California 95267 05 06 COUNTY OF GLENN: 06 07 NORMAN Y. HERRING 07 525 West Sycamore Street 08 Willows, California 95988 08 09 REGIONAL COUNCIL OF RURAL COUNTIES: 09 10 MICHAEL B. JACKSON 10 1020 Twelfth Street, Suite 400 11 Sacramento, California 95814 11 12 DEER CREEK WATERSHED CONSERVANCY: 12 13 JULIE KELLY 13 P.O. Box 307 14 Vina, California 96092 14 15 DELTA TRIBUTARY AGENCIES COMMITTEE: 15 16 MODESTO IRRIGATION DISTRICT 16 P.O. Box 4060 17 Modesto, California 95352 17 BY: BILL KETSCHER 18 18 SAVE THE SAN FRANCISCO BAY ASSOCIATION: 19 19 SAVE THE BAY 20 1736 Franklin Street 20 Oakland, California 94612 21 BY: CYNTHIA L. KOEHLER, ESQ. 21 22 BATTLE CREEK WATERSHED LANDOWNERS: 22 23 BATTLE CREEK WATERSHED CONSERVANCY 23 P.O. Box 606 24 Manton, California 96059 24 25 25 2137 01 01 02 REPRESENTATIVES 02 03 BUTTE SINK WATERFOWL ASSOCIATION, et al.: 03 04 MARTHA H. LENNIHAN, ESQ. 04 455 Capitol Mall, Suite 300 05 Sacramento, California 95814 05 06 CITY OF YUBA CITY: 06 07 WILLIAM P. LEWIS 07 1201 Civic Center Drive 08 Yuba City 95993 08 09 BROWNS VALLEY IRRIGATION DISTRICT, et al.: 09 10 BARTKEWICZ, KRONICK & SHANAHAN 10 1011 22nd Street, Suite 100 11 Sacramento, California 95816 11 BY: ALAN B. LILLY, ESQ. 12 12 CONTRA COSTA WATER DISTRICT: 13 13 BOLD, POLISNER, MADDOW, NELSON & JUDSON 14 500 Ygnacio Valley Road, Suite 325 14 Walnut Creek, California 94596 15 BY: ROBERT B. MADDOW, ESQ. 15 16 GRASSLAND WATER DISTRICT: 16 17 DON MARCIOCHI 17 22759 South Mercey Springs Road 18 Los Banos, California 93635 18 19 SAN LUIS CANAL COMPANY: 19 20 FLANNIGAN, MASON, ROBBINS & GNASS 20 3351 North M Street, Suite 100 21 Merced, California 95344 21 BY: MICHAEL L. MASON, ESQ. 22 22 STONY CREEK BUSINESS AND LAND OWNERS COALITION: 23 23 R.W. MCCOMAS 24 4150 County Road K 24 Orland, California 95963 25 25 2138 01 01 02 REPRESENTATIVES 02 03 TRI-DAM POWER AUTHORITY: 03 04 TUOLUMNE UTILITIES DISTRICT 04 P.O. Box 3728 05 Sonora, California 95730 05 BY: TIM MCCULLOUGH 06 06 DELANO-EARLIMART IRRIGATION DISTRICT, et al.: 07 07 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 08 P.O. Box 1679 08 Oroville, California 95965 09 BY: JEFFREY A. MEITH, ESQ. 09 10 HUMANE FARMING ASSOCIATION: 10 11 BRADLEY S. MILLER 11 1550 California Street, Suite 6 12 San Francisco, California 94109 12 13 CORDUA IRRIGATION DISTRICT, et al.: 13 14 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 14 P.O. Box 1679 15 Oroville, California 95965 15 BY: PAUL R. MINASIAN, ESQ. 16 16 EL DORADO COUNTY WATER AGENCY: 17 17 DE CUIR & SOMACH 18 400 Capitol Mall, Suite 1900 18 Sacramento, California 95814 19 BY: DONALD B. MOONEY, ESQ. 19 20 GLENN COUNTY FARM BUREAU: 20 21 STEVE MORA 21 501 Walker Street 22 Orland, California 95963 22 23 MODESTO IRRIGATION DISTRICT: 23 24 JOEL MOSKOWITZ 24 P.O. Box 4060 25 Modesto, California 95352 25 2139 01 01 02 REPRESENTATIVES 02 03 PACIFIC GAS & ELECTRIC: 03 04 RICHARD H. MOSS, ESQ. 04 P.O. Box 7442 05 San Francisco, California 94120 05 06 CENTRAL DELTA WATER AGENCY, et al.: 06 07 NOMELLINI, GRILLI & MCDANIEL 07 P.O. Box 1461 08 Stockton, California 95201 08 BY: DANTE JOHN NOMELLINI, ESQ. 09 and 09 DANTE JOHN NOMELLINI, JR., ESQ. 10 10 TULARE LAKE BASIN WATER STORAGE UNIT: 11 11 MICHAEL NORDSTROM 12 1100 Whitney Avenue 12 Corcoran, California 93212 13 13 AKIN RANCH, et al.: 14 14 DOWNEY, BRAND, SEYMOUR & ROHWER 15 555 Capitol Mall, 10th Floor 15 Sacramento, California 95814 16 BY: KEVIN M. O'BRIEN, ESQ. 16 17 OAKDALE IRRIGATION DISTRICT: 17 18 O'LAUGHLIN & PARIS 18 870 Manzanita Court, Suite B 19 Chico, California 95926 19 BY: TIM O'LAUGHLIN, ESQ. 20 20 SIERRA CLUB: 21 21 JENNA OLSEN 22 85 Second Street, 2nd Floor 22 San Francisco, California 94105 23 23 YOLO COUNTY BOARD OF SUPERVISORS: 24 24 LYNNEL POLLOCK 25 625 Court Street 25 Woodland, California 95695 2140 01 01 02 REPRESENTATIVES 02 03 PATRICK PORGENS AND ASSOCIATES: 03 04 PATRICK PORGENS 04 P.O. Box 60940 05 Sacramento, California 95860 05 06 BROADVIEW WATER DISTRICT, et al.: 06 07 DIANE RATHMANN 07 08 FRIENDS OF THE RIVER: 08 09 BETSY REIFSNIDER 09 128 J Street, 2nd Floor 10 Sacramento, California 95814 10 11 MERCED IRRIGATION DISTRICT: 11 12 FLANAGAN, MASON, ROBBINS & GNASS 12 P.O. Box 2067 13 Merced, California 95344 13 BY: KENNETH M. ROBBINS, ESQ. 14 14 CENTRAL SAN JOAQUIN WATER CONSERVATION DISTRICT: 15 15 REID W. ROBERTS, ESQ. 16 311 East Main Street, Suite 202 16 Stockton, California 95202 17 17 METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA: 18 18 JAMES F. ROBERTS 19 P.O. Box 54153 19 Los Angeles, California 90054 20 20 SACRAMENTO AREA WATER FORUM: 21 21 CITY OF SACRAMENTO 22 980 9th Street, 10th Floor 22 Sacramento, California 95814 23 BY: JOSEPH ROBINSON, ESQ. 23 24 24 25 25 2141 01 REPRESENTATIVES 01 02 TUOLUMNE RIVER PRESERVATION TRUST: 02 03 NATURAL HERITAGE INSTITUTE 03 114 Sansome Street, Suite 1200 04 San Francisco, California 94194 04 BY: RICHARD ROOS-COLLINS, ESQ. 05 05 CALIFORNIA DEPARTMENT OF WATER RESOURCES: 06 06 DAVID SANDINO, ESQ. 07 CATHY CROTHERS, ESQ. 07 P.O. Box 942836 08 Sacramento, California 94236 08 09 FRIANT WATER USERS AUTHORITY: 09 10 GARY W. SAWYERS, ESQ. 10 575 East Alluvial, Suite 101 11 Fresno, California 93720 11 12 KERN COUNTY WATER AGENCY: 12 13 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 13 400 Capitol Mall, 27th Floor 14 Sacramento, California 95814 14 BY: CLIFFORD W. SCHULZ, ESQ. 15 15 SAN JOAQUIN RIVER EXCHANGE CONTRACTORS: 16 16 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON: 17 P.O. Box 1679 17 Oroville, California 95965 18 BY: MICHAEL V. SEXTON, ESQ. 18 19 SAN JOAQUIN COUNTY: 19 20 NEUMILLER & BEARDSLEE 20 P.O. Box 20 21 Stockton, California 95203 21 BY: THOMAS J. SHEPHARD, SR., ESQ. 22 22 CITY OF STOCKTON: 23 23 DE CUIR & SOMACH 24 400 Capitol Mall, Suite 1900 24 Sacramento, California 95814 25 BY: PAUL S. SIMMONS, ESQ. 25 2142 01 REPRESENTATIVES 01 02 ORLAND UNIT WATER USERS' ASSOCIATION: 02 03 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 03 P.O. Box 1679 04 Oroville, California 95965 04 BY: M. ANTHONY SOARES, ESQ. 05 05 GLENN-COLUSA IRRIGATION DISTRICT: 06 06 DE CUIR & SOMACH 07 400 Capitol Mall, Suite 1900 07 Sacramento, California 95814 08 BY: STUART L. SOMACH, ESQ. 08 09 NORTH SAN JOAQUIN WATER CONSERVATION DISTRICT: 09 10 JAMES F. SORENSEN CONSULTING CIVIL ENGINEER, INC. 10 209 South Locust Street 11 Visalia, California 93279 11 BY: JAMES F. SORENSEN 12 12 PARADISE IRRIGATION DISTRICT: 13 13 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 14 P.O. Box 1679 14 Oroville, California 95695 15 BY: WILLIAM H. SPRUANCE, ESQ. 15 16 COUNTY OF COLUSA: 16 17 DONALD F. STANTON, ESQ. 17 1213 Market Street 18 Colusa, California 95932 18 19 COUNTY OF TRINITY: 19 20 COUNTY OF TRINITY - NATURAL RESOURCES 20 P.O. Box 156 21 Hayfork, California 96041 21 BY: TOM STOKELY 22 22 CITY OF REDDING: 23 23 JEFFERY J. SWANSON, ESQ. 24 2515 Park Marina Drive, Suite 102 24 Redding, California 96001 25 25 2143 01 REPRESENTATIVES 01 02 TULARE IRRIGATION DISTRICT: 02 03 TEHAMA COUNTY RESOURCE CONSERVATION DISTRICT 03 2 Sutter Street, Suite D 04 Red Bluff, California 96080 04 BY: ERNEST E. WHITE 05 05 STATE WATER CONTRACTORS: 06 06 BEST BEST & KREIGER 07 P.O. Box 1028 07 Riverside, California 92502 08 BY: GREGORY WILKINSON, ESQ. 08 09 COUNTY OF TEHAMA, et al.: 09 10 COUNTY OF TEHAMA BOARD OF SUPERVISORS: 10 P.O. Box 250 11 Red Bluff, California 96080 11 BY: CHARLES H. WILLARD 12 12 MOUNTAIN COUNTIES WATER RESOURCES ASSOCIATION: 13 13 CHRISTOPHER D. WILLIAMS 14 P.O. Box 667 14 San Andreas, California 95249 15 15 JACKSON VALLEY IRRIGATION DISTRICT: 16 16 HENRY WILLY 17 6755 Lake Amador Drive 17 Ione, California 95640 18 18 SOLANO COUNTY WATER AGENCY, et al.: 19 19 HERUM, CRABTREE, DYER, ZOLEZZI & TERPSTRA 20 2291 West March Lane, S.B.100 20 Stockton, California 95207 21 BY: JEANNE M. ZOLEZZI, ESQ. 21 22 ---oOo--- 22 23 23 24 24 25 25 2144 01 INDEX 01 02 PAGE 02 03 OPENING SESSION 2146 03 04 STATE WATER CONTRACTORS: 04 POLICY STATEMENT: 05 BY MR. GARNER 2147 05 06 DEPARTMENT OF WATER RESOURCES, DEPARTMENT OF FISH 06 AND GAME & SUISUN RESOURCE CONSERVATION DISTRICT: 07 07 OPENING STATEMENT: 08 BY MS. CROTHERS 2155 08 BY MR. CAMPBELL 2164 09 09 DIRECT EXAMINATION: 10 BY MS. CROTHERS 10 BY MR. CAMPBELL 11 PANEL: 11 KAMYAR GUIVETCHI 2173 12 STEVE CHAPPELL 2187 12 FRANK WERNETTE 2196 13 CROSS-EXAMINATION: 13 BY MR. NOMELLINI 2215 14 BY MR. BRANDT 2222 14 BY STAFF 2246 15 BY BOARD MEMBERS 2260 15 REDIRECT EXAMINATION: 16 BY MR. CAMPBELL 2263 16 BY MS. CROTHERS 2268 17 17 18 AFTERNOON SESSION 2263 18 19 19 20 20 21 21 22 22 23 23 24 24 25 25 2145 01 INDEX (CONT.) 01 02 PAGE 02 03 DEPARTMENT OF THE INTERIOR: 03 04 OPENING STATEMENT: 04 BY MR. BRANDT 2271 05 DIRECTION EXAMINATION: 05 BY MR. BRANDT 06 PANEL: 06 WILL KECK 2276 07 MICHAEL THABAULT 2283 07 CROSS-EXAMINATION: 08 BY MR. CAMPBELL 2291 08 BY MR. GALLERY 2306 09 BY MS. CROTHERS 2316 09 BY MR. MINASIAN 2322 10 BY MR. NOMELLINI 2331 10 BY STAFF 2335 11 REBUTTAL TESTIMONY: 11 BY MS. CROTHERS 2339 12 CROSS REBUTTAL: 12 BY MR. BRANDT 2342 13 BY MR. NOMELLINI 2343 13 14 ---oOo--- 15 16 17 18 19 20 21 22 23 24 25 2146 01 SACRAMENTO, CALIFORNIA 02 WEDNESDAY, AUGUST 5, 1998 03 ---oOo--- 04 C.O. CAFFREY: We are on the record. Good morning. 05 This is the resumption of the Bay-Delta water rights 06 hearing and the beginning of Phase III, which is the 07 considerIng of the Suisun Marsh Preservation Agreement and 08 other potential alternatives that may be related. 09 For the record, again, my name is John Caffrey. I 10 serve as Chairman of the State Water Resources Control 11 Board. A quorum of the Board is present, not that that is 12 necessary because this is a hearing officer situation, and 13 Mr. Stubchaer and I continue to serve as Cohearing officers 14 in this proceeding. 15 With that, then, let me also point out that we are also 16 joined at the dais by Mr. Pettit, our Executive Director who 17 will be helping us from time to time. The staff is at the 18 front table. 19 We will start this particular phase, Phase III, by 20 asking: Are there individuals in the audience that wish to 21 participate in this phase, Phase III, who have not yet 22 introduced themselves into the record? 23 Sir, please rise. Please come -- ask all of you sort 24 of queue up and come to the -- 25 MS. LEIDIGH: These are all witnesses. 2147 01 C.O. CAFFREY: During introductions I should have 02 specified is primarily for representatives or attorneys. 03 So, are there individuals who have not yet made their 04 appearance or made their introductions into the record? 05 All right. Then we won't go through that lengthy 06 15-minute reading of those who have not yet appeared. We 07 will expect to see them at some later date or not at all. 08 Let me ask, then, if there are any parties wishing to 09 offer policy statements for Phase III, specific to Phase 10 III? 11 Mr. Garner, you are -- are you going to be presenting a 12 case in Phase III? 13 MR. GARNER: No, we are not. 14 C.O. CAFFREY: This would be policy statements for 15 those not presenting cases in chief in Phase III. You are, 16 apparently, the only one responding, sir. 17 Please come forward and make your policy statement and 18 be mindful that there is a five-minute limit on policy 19 statements. 20 Good morning and welcome. 21 MR. GARNER: Good morning, Chairman Caffrey and Members 22 of the Board. Eric Garner on behalf of the State Water 23 Contractors. The State Water Contractors support Amendment 24 Three to the Suisun Marsh Preservation Agreement. The State 25 Water Contractors have been involved in the Suisun Marsh 2148 01 issues for a long time, and David Schuster represented the 02 contractors in the negotiations, both the original Suisun 03 Marsh Preservation Agreement and the amendment that will be 04 presented to you today. 05 The State Water Contractors believe that Amendment 06 Three is necessary to respond to changes and conditions that 07 have occurred in the past several years, namely the 1994 08 Principals of Agreement, the 1995 Water Quality Control Plan 09 objectives, and the fact that the Suisun Marsh salinity 10 gates have been more effective than expected at reducing 11 salinity in Suisun Marsh. 12 The State Water Contractors believe that Amendment 13 Three will provide four actions that meet 1995 Water Quality 14 Control Plan Western Marsh objectives and will provide 15 better protection for the entire Marsh. The Contractors 16 have committed, through the Department of Water Resources, 17 to fund 40 percent of the cost for the implementation of 18 Amendment Three, and the Contractors encourage the State 19 Board to adopt this amendment. 20 Thank you very much. 21 C.O. CAFFREY: Thank you very much, Mr. Garner, for the 22 policy statement. 23 Next we will go to opening statement for Phase III for 24 parties not presenting evidence. Does anybody in the 25 audience wish to avail themselves of that opportunity? 2149 01 Seeing and hearing no response, then, we will close 02 that portion of the hearing, for this phase of the hearing, 03 and let me ask, then, for the record, because there seems in 04 previous phases there were refinements as we went along. 05 Let's take a moment here to discover, if you will, how 06 many cases in chief we are going to be hearing and who is 07 going to be presenting them in Phase III. 08 I understand we have a combined case in chief between 09 the Department of Fish and Game and the Department of Water 10 Resources; is that correct. 11 MR. CAMPBELL: That is correct. 12 C.O. CAFFREY: Thank you, Mr. Campbell. 13 We will begin with that case in chief. 14 Are there other parties wishing to present other cases 15 in chief? 16 Mr. Minasian. 17 MR. MINASIAN: Mr. Gallery will start and I was joining 18 in Mr. Gallery's comments. 19 C.O. CAFFREY: Been a long time since we've seen you, 20 Mr. Minasian. Welcome. 21 Mr. Gallery, it's always nice to see you, but we also 22 saw you yesterday. Still, it is always pleasant. 23 How are you, sir? 24 MR. GALLERY: Thank you. Mr. Chairman. 25 The City of Vallejo had presented evidence -- had 2150 01 filed evidence with the Board that it intended to present in 02 this Phase III relative to the question of whether there 03 should be any augmentation flows into the Western Marsh. 04 The City of Vallejo has an interest in that. It has two 05 small reservoirs in the upper watershed of Green Valley 06 Creek. 07 A couple of the alternatives in the EIR indicated that 08 -- had talked about the possibility of requiring some flows 09 to come into the Marsh from the Green Valley Creek source, 10 which could track back to Vallejo and its two small 11 reservoirs. And, also, the Department of Fish and Game had 12 previously indicated that it might recommend some 13 augmentation flows from Green Valley Creek. 14 It has not done that, however, in the case that it has 15 presented to the Board. So there appears to be no request 16 from anybody that there be any augmentation flows from Green 17 Valley Creek into the Marsh, whether from Vallejo or any 18 other source. 19 Mr. Minasian's involvement was the possibility from 20 some other sources. In view of the fact that there has been 21 no evidence put in suggesting or requesting any augmentation 22 flows from Green Valley Creek by the Department of Fish and 23 Game or anyone else, Vallejo is electing to not put on any 24 case in chief. We would like to participate, possibly, with 25 a few questions. 2151 01 Our present position is that we would support this 02 Amendment Number Three Agreement. We won't put any case of 03 our own in unless the Board itself might want to hear that 04 evidence about augmentation flows. It seems to us to be a 05 nonissue at this point. So, for that reason, we wouldn't 06 take up the Board's time with our evidence. 07 C.O. CAFFREY: All right. Thank you very much, Mr. 08 Gallery. Of course, in no way do you forfeiture your right 09 to participate in this proceeding in some other capacity, in 10 cross-examination or possible rebuttal or anything else that 11 you may wish to avail yourself as within our rules. 12 Thank you for that clarification. 13 Mr. Minasian, do you have something? 14 MR. MINASIAN: If I might just place on the record for 15 clarity purposes, I represent the Solano Irrigation District 16 who presented testimony, Mr. Brice Bledsoe, the water 17 sources that had been alluded to in the comments to the EIR. 18 In the case of Solano Irrigation District were releases from 19 Putah South Canal, water from the Suisun-Fairfield sewer 20 plant or wastewater plant, which we utilize and have the 21 right to utilize. And the creeks were Green Valley Creek 22 and Suisun Creek. 23 Mr. Gallery's comments are adopted by us. Does not 24 appear to be an issue. So we will withdraw that testimony 25 unless the Board had questions of us. And we will 2152 01 participate in the same way Mr. Gallery suggested. 02 C.O. CAFFREY: So Solano Irrigation District would not 03 be presenting a case in chief in this case? 04 MR. MINASIAN: That is correct. 05 C.O. CAFFREY: Thank you very much, Mr. Minasian. 06 MR. MINASIAN: Thank you. 07 C.O. CAFFREY: I do have -- in the chart that our staff 08 put together several weeks ago, I show the Natural Heritage 09 Institute and Trinity County as possible presenters of 10 evidence, cases in chief, if you will. 11 Are there folks here representing the Natural Heritage 12 Institute or the County of Trinity? 13 I am going to assume that they will not be presenting 14 cases in chief. I also have the Department of Interior. 15 Mr. Brandt, are you going to be presenting a case in chief? 16 MR. BRANDT: Yes, I will, Mr. Chairman. 17 I do have a question, with those parties now no longer 18 on, I have a witness issue which is one of my witnesses was 19 not going to be here till 1:00. If they actually go as far 20 as now it looks they might go, we may need a little bit of 21 effort. I will try to get my witness here as quickly as 22 possible. 23 C.O. CAFFREY: We can accommodate you. The individual 24 is going to be here at 1:00? 25 MR. BRANDT: Yes. 2153 01 C.O. CAFFREY: We will, unless there is an objection 02 from the other Board Members. We will take a break and wait 03 till the witnesses arrive, if it becomes necessary. 04 MR. BRANDT: I anticipated this would take at least the 05 whole morning. 06 C.O. CAFFREY: I don't know how long Mr. Sandino and 07 Mr. Campbell would be. Maybe it would be helpful this 08 morning. Who knows. 09 MR. BRANDT: Fair enough. 10 C.O. CAFFREY: Thank you, Mr. Brandt. 11 Okay, then. 12 I believe that gets us -- let me just repeat. We are 13 going to have a joint presentation, as I understand it, from 14 the Department of Water Resources and the Department of Fish 15 and Game. We will go first there. 16 Mr. Campbell. 17 MR. CAMPBELL: Excuse me, Mr. Chairman. It is all the 18 Suisun Resource Conservation District's as part of that 19 presentation. 20 C.O. CAFFREY: Thank you. 21 Ms. Crothers. 22 MS. CROTHERS: Mr. Caffrey, I would like to explain 23 that I will be doing the opening statement and presentation 24 today in place of Mr. Sandino, because I have been the 25 attorney assigned to the Suisun Marsh for the last three 2154 01 years. 02 C.O. CAFFREY: That is perfectly acceptable. We have 03 been allowing that. We just finished Phase II which had at 04 least 500 attorneys; at least it seemed like that from time 05 to time. But I think under the circumstances it worked out 06 rather well. 07 So, we will certainly accommodate the representative 08 attorneys in whatever order or roles that you want to 09 accommodate. 10 With that, then, I believe we can administer the oath 11 or affirmation. 12 Are there those who will be presenting evidence this 13 morning or testifying this morning who have not been sworn 14 in? 15 Please stand, raise your right hand. 16 (Oath administered by C.O. Caffrey.) 17 C.O. CAFFREY: I believe, then, if you are going to 18 make the opening statement, Ms. Crothers, this is as good a 19 time as any to start the combined case in chief of the 20 Department of Water Resources, Department of Fish and Game 21 and Suisun Resource Conservation District. 22 ---oOo--- 23 // 24 // 25 // 2155 01 OPENING STATEMENTS 02 DEPARTMENT OF WATER RESOURCES, DEPARTMENT OF FISH AND GAME & 03 SUISUN RESOURCE CONSERVATION DISTRICT 04 BY MS. CROTHERS AND MR. CAMPBELL 05 MS. CROTHERS: Good morning, Mr. Chairman and Members 06 of the Board and Board staff. My name is Cathy Crothers. I 07 am staff counsel for the Department of Water Resources. I 08 will be introducing the Department of Water Resources, the 09 Department of Fish and Game and Suisun Resource Conservation 10 District expert witnesses today who will be making a joint 11 panel presentation on the settlement agreement for 12 implementation of the Suisun Marsh water quality objectives 13 for the Interior Marsh. 14 C.O. CAFFREY: I apologize already for interrupting 15 you. It isn't about the mike. I can hear you. What I was 16 just going to say for your benefit and benefit of the 17 audience, we probably have repeated this a number of times, 18 but the audience changes, too. 19 There is a 20-minute limitation on your opening 20 statement, and then there is a 20-minute limit on each 21 witness, based on the presentation of evidence. And the 22 reason we don't make exceptions there is because the 23 evidentiary exhibits have already been introduced. We do 24 hold to that 20-minute limitation. That is not the case 25 with cross-examination; that is another whole due process 2156 01 issue. There is no limit on cross-examination. 02 We set a goal of one hour per party, but if people need 03 more time than that, that is -- we will certainly 04 accommodate as long as questioning remains in the area of 05 relevancy. 06 With that, then, just so I know, how many more 07 witnesses will there be in this combined presentation 08 besides this panel? Is this the entire panel of witnesses? 09 MS. CROTHERS: For this joint panel presentation there 10 will be three. 11 C.O. CAFFREY: Mr. Stubchaer's always going to keep me 12 honest, my Cohearing Officer, but I count a potential of an 13 hour and 20 minutes. 14 MS. CROTHERS: Yes. As I was going to explain is what 15 we suggest for this, since it is a joint presentation 16 between the two parties, Fish and Game and DWR, that to make 17 things go more smoothly, I would present an opening 18 statement on behalf of DWR, and, then, following my opening 19 statement, Mr. Campbell will present an opening statement 20 for the Department of Fish and Game. And, then, following 21 that, if that is okay with the Board, we would proceed with 22 the expert witnesses and they, together, then would -- it 23 would be -- 24 C.O. CAFFREY: Actually, based on what you just said, 25 you will get another 20 minutes. You get 20 minutes. Mr. 2157 01 Campbell gets 20 minutes for his opening statement. He 02 says he is not going to take that. I heard that before. I 03 didn't mean that toward you necessarily, Mr. Campbell. So, 04 actually, you have an hour and 40 minutes total, but it has 05 to have those demarcations that we just described. You 06 can't lap over into other phases. You get 20 minutes. Mr. 07 Campbell gets 20 minute and each witness gets 20. 08 Please proceed. 09 MS. CROTHERS: I hopefully will be able to keep on 10 track. 11 I'd also like to note that the Bureau, who is the 12 fourth party to our Suisun Marsh Preservation Agreement, 13 they will be making a separate presentation with the 14 Department of Interior. 15 Our joint presentation will take, you just figured, 16 about an hour and half. 17 C.O. CAFFREY: I hate to interrupt you again. I am 18 just trying to get a handle on what's happening in this case 19 in chief. You just mentioned that the Bureau is going to be 20 participating, too. Will that include an opening statement? 21 MS. CROTHERS: They are doing their own separate case 22 in chief. I just want to explain - 23 C.O. CAFFREY: You were talking about their separate 24 case in chief? 25 MS. CROTHERS: Yes. This Amendment Three that we are 2158 01 representing today is actually among four parties. Three of 02 the parties will be on this panel, and the fourth party will 03 be on a separate presentation. 04 C.O. CAFFREY: One thing you probably learned already 05 in the last five minutes, Ms. Crothers, don't try to help us 06 too much; we can get confused. 07 Go ahead. 08 MS. CROTHERS: I think it is a bit confusing, this 09 amendment process, and combined with the Board process. So, 10 I am going to try to explain it a little bit in my opening 11 statement. 12 C.O. CAFFREY: Go right ahead. If you spent some time, 13 as Mr. Brown just said, you should have been here for the 14 duration of Phase II, if you think this is going to be 15 complicated. 16 MS. CROTHERS: I was, and it is not anywhere near as 17 complicated as that. 18 C.O. CAFFREY: We will start the clock now, and I won't 19 interrupt you any more than I have to. 20 MS. CROTHERS: The manner of our presentation will be 21 as follows: Department's Marsh Program Manager for this 22 Suisun Marsh is Mr. Kamyar Guivetchi. He will provide an 23 overview of the Suisun Marsh Preservation Agreement, the 24 technical development of Amendment Three and the differences 25 of the State Board's Draft EIR Alternative 5 compared to 2159 01 Amendment Three. 02 Then Mr. Steve Chappell, biologist for the Suisun 03 Resource Conservation District. He will explain some of the 04 provisions of Amendment Three that SRCD will be implementing 05 with funding from DWR and the Bureau of Reclamation. He 06 will explain the Marsh Individual Ownership Adaptive 07 Management Habitat Plans, the Water Manager Program and the 08 Joint-Use Facilities Program. 09 Mr. Frank Wernette, from Fish and Game with 10 responsibilities for the Marsh, he will present the 11 biological foundation for and the equivalent protection 12 provided by the Amendment. 13 This presentation supports implementation of the 14 Board's environmentally preferred alternative for the Marsh, 15 described in the Draft EIR as Alternative 5. With the 16 modification, Amendment Three does not include the Green 17 Valley Creek augmentations nor the redirection of drainage 18 from the Morrow Island to Suisun Bay. 19 DWR and Fish and Game and SRCD will present evidence 20 showing that under existing Delta outflow objectives of the 21 '95 Water Quality Control Plan and with the Suisun Marsh 22 Salinity Control Gate Operations, Amendment Three will 23 provide equivalent or better protection for the numerical 24 water quality objectives of the Water Quality Control Plan 25 at compliance stations S-97 and S-35. 2160 01 In the '95 plan, also in Decision D-1485 and Water 02 Rights 95-6, two alternative methods are available for 03 meeting marsh salinities objectives. One by complying with 04 the numerical specified in channel electrical conductivity 05 values, or, two, by demonstrating equivalent or better 06 protection will be provided. 07 We believe that the evidence presented today on 08 Amendment Three demonstrates that the Amendment satisfies 09 implementation of the second alternative of equivalent 10 protection for the two Far Western Marsh stations. 11 So, I believe a little background on the Suisun Marsh 12 Agreement is useful in understanding why we are amending the 13 agreement. The original SMP, signed in 1987, was developed 14 to provide facilities that would protect the brackish water 15 nature of the Marsh, while mitigating for adverse impacts on 16 the Suisun Marsh managed wetlands from the Central Valley 17 Project Operations and the State Water Project Operations, 18 and from other upstream diverters, upstream of the Delta. 19 To meet these objectives the original SMPA established 20 channel water salinity standards which were similar to those 21 in D-1485 and the process for constructing large-scale 22 facilities that would be used to meet these salinity 23 standards. The Bureau and Department of Water Resources 24 would be responsible for funding and constructing the 25 facilities and meeting the salinity standards. 2161 01 Construction of the facilities was to be in phases, 02 based on an evaluation of a prior facility and the 03 effectiveness of that facility in meeting salinity. In 1988 04 one of these large-scale facilities, the Suisun Marsh 05 Salinity Control Gate, was installed in Montezuma Slough. 06 We have a map on the board there. I don't know if -- 07 you probably can't see it. But when we get to the technical 08 part, they will be able to explain some of the locations of 09 these things. I might note in the area we are both 10 interested in and describe in the Draft EIR, Far Western 11 Marsh at S-97 and S-35. 12 Since the installation of the salinity control gates, 13 we have found them to be more effective at reducing salinity 14 in the Marsh than we originally expected. Although, as our 15 presentation will show, the gates are not able to 16 effectively control salinity in the far Western Marsh. 17 Therefore, in 1990, the Department and Bureau began planning 18 the Western Suisun Marsh Salinity Control Project to develop 19 facilities or activities to enable DWR and the Bureau to 20 meet the water quality standard of the 1987 Marsh Agreement 21 and D-1485. 22 In 1994, however, the Principles of Agreement, or the 23 Accord, was signed which initiated the Board's process to 24 develop the '95 Water Quality Control Plan. The plan 25 modified objectives for the Western Marsh and also modified 2162 01 the prior water quality outflow objectives. It called for 02 higher Delta outflow and a higher salinity in the Western 03 Marsh during droughts. 04 These higher salinity objectives were the same as the 05 standards already established in the 1987 Suisun Marsh 06 Agreement. As a result of the higher Delta outflows and the 07 effective salinity control gate operations, the Bureau and 08 DWR stopped planning for the Western Suisun Marsh Salinity 09 Control Project; and the SMPA parties agreed that additional 10 facilities in the Marsh would not be necessary. 11 In July 1995, DWR, the Bureau, Fish and Game and SRCD 12 agreed to begin negotiations to amend the Suisun Marsh 13 Preservation Agreement. In the proposed amendment, the 14 expressed objective to the original SMPA remained the same; 15 that is, to mitigate for State Water Project and Central 16 Valley Project adverse impacts on the managed wetlands in 17 the Marsh. 18 In addition, as our presentation will show, Amendment 19 Three includes water quality standards that are, in essence, 20 the same as the '95 Water Quality Control Plan by providing 21 equivalent or better protection in the Western Marsh in the 22 areas of S-97 and S-35. The Amendment Three objectives and 23 provisions are consistent with the State Board Marsh 24 objectives, but may or may not encompass all the State Board 25 objectives for the Marsh. 2163 01 For example, the Board did not include implementation 02 of the Marsh narrative objective as an issue in this 03 hearing. The State Board is waiting for additional 04 information from the Suisun Biological Work Group as to 05 whether the narrative objective may be achieved by 06 compliance with other flow and water quality objectives. 07 And the Board will consider this issue in the next triennial 08 review of the Bay-Delta Plan. 09 Under the proposed alternative for the Marsh, the State 10 Board's Draft EIR, DWR and the Bureau would continue to be 11 responsible for operating the salinity control gates and we 12 would remain responsible for water quality objectives at the 13 other compliance stations in the Marsh, other than the S-97, 14 S-35. Namely those in the Eastern and more Interior Marsh, 15 C-2, S-64, S-49, S-42 and S-21. 16 This responsibility is based on modeling and indicates 17 that under conditions of the plant's outflow objectives in 18 the DWR and Bureau's operation of the salinity control 19 gates, these objectives would be met with the exception of 20 rare hydrologic dry conditions. In the Draft EIR it is 21 noted that the marsh state operation and outflow 22 requirements are in effect, but when dry conditions occur, 23 an exception to the DWR and Bureau's responsibility would be 24 in place for these other marsh compliance areas. 25 Therefore, part of our presentation will describe how 2164 01 DWR and the Bureau propose to trigger this exception during 02 the rare dry conditions. 03 In conclusion, today's evidence is intended to 04 demonstrate how Amendment Three actions would protect the 05 Western Marsh at stations S-97 and S-35 and how the actions 06 also would provide benefits to managed wetlands in other 07 areas of the Marsh. In addition, I would like to emphasize 08 that the Board has indicated in its Draft EIR that 09 Alternative 5 is the environmental preferred alternative. 10 Our evidence will show that even with the deletion of 11 the Green Valley Creek flow augmentation in the Morrow 12 Island Drainage Program, the implementation of Amendment 13 Three would provide the same protection as Alternative 5 14 and, therefore, Amendment Three would be the environmentally 15 preferred choice among the six alternatives described in the 16 Draft EIR for implementing the marsh numerical objectives. 17 C.O. CAFFREY: Thank you very much, Ms. Crothers. 18 Mr. Campbell, do you wish to make an opening statement 19 at this time? 20 MR. CAMPBELL: Briefly. 21 C.O. CAFFREY: You have 20, if you want it. 22 MR. CAMPBELL: No need. 23 C.O. CAFFREY: Go ahead, sir. 24 MR. CAMPBELL: Good morning, Mr. Chairman, Members of 25 the Board, Board staff. My name is Matthew Campbell. I am 2165 01 a Deputy Attorney General. I represent the Department of 02 Fish and Game, and I have been spending a summer with you 03 all in these proceedings. 04 The purpose of Phase III, as noticed by the Board's 05 Revised Notice of Public Hearing, dated May 16, 1998, is to 06 determine the appropriate means for implementing the Suisun 07 Marsh salinity objectives. The Suisun Marsh salinity 08 objectives were promulgated by the Board as part of the 1995 09 Bay-Delta Water Quality Control Plan. DFG joins with the 10 Department of Water Resources and the Suisun Resource 11 Conservation District in supporting Amendment Three to the 12 Suisun Marsh Preservation Agreement as the best means for 13 implementing the existing Suisun Marsh salinity objectives. 14 Amendment Three is the product of several years of work 15 by the Department of Fish and Game, the Department of Water 16 Resources, the United States Bureau of Reclamation and the 17 Suisun Resource Conservation District. As will be 18 demonstrated by the testimony of DFG senior biologist, Frank 19 Wernette, implementation of Amendment Three will provide 20 environmental protection equivalent to or even better than 21 the 1995 Water Quality Control Plan salinity objectives for 22 the Suisun Marsh. 23 Mr. Wernette will also testify as to ongoing efforts of 24 the Suisun Ecological Work Group, or SEW. SEW was created 25 at the direction of this Board in 1995 Water Quality Control 2166 01 Plan for the Bay-Delta. Participants in SEW include the 02 Department of Water Resources, the U.S. Bureau of 03 Reclamation, the Suisun Resource Conservation District, the 04 Department of Fish and Game and the United States Fish and 05 Wildlife Service. 06 Among other tasks, SEW is evaluating the existing 07 Suisun Marsh salinity objectives for the purpose of 08 protecting environmental values in the Marsh. It is the 09 Department of Fish and Game's understanding that SEW intends 10 to provide a report or recommendation or recommendations to 11 the Board for use at the next triennial review of those 12 water quality objectives. 13 Based on the evidence that will be provided by DFG, DWR 14 and SRCD, DFG recommends that the Board adopt the provisions 15 of Amendment Three to the Suisun Marsh Preservation 16 Agreement as the State Water Project's and Central Valley 17 Project's share of responsibility for meeting the existing 18 Suisun Marsh salinity objectives in the 1995 Water Quality 19 Control Plan for the Bay-Delta. 20 Thank you. 21 C.O. CAFFREY: Thank you very much, Mr. Campbell. 22 How do you wish to proceed with the direct testimony? 23 Question and answer or will they just make presentations -- 24 Mr. Brandt, you rise? 25 MR. BRANDT: Mr. Chairman, I am going to make an 2167 01 objection just to one of the witnesses here today. We have 02 never seen his resume, so to the extent that he's presented 03 as an expert, I object. 04 The other thing is, I don't know whether -- I mean, his 05 testimony -- there is no testimony from him being presented 06 or being submitted. So, I have no idea who he is. So, 07 having a biologist here, suddenly, at the last minute, I 08 object. 09 C.O. CAFFREY: Let me get this clarified. Do we have 10 a witness here for whom we have not had evidentiary 11 exhibits, including a description of his qualifications? 12 MS. CROTHERS: Mr. Caffrey, I was going to explain this 13 morning to the Board and ask whether we can make a 14 substitute of an expert witness because Mr. Lee Lehman, who 15 is the Executive Director for SRCD, he had knee surgery 16 unexpectedly the other day, and he is not supposed to be 17 walking around. So he was not able to get here today. 18 What we are suggesting in place of Mr. Lehman, because 19 this is a joint presentation, and in our submittal testimony 20 that we provided, DWR 29, this is indicated as a footnote, 21 that this joint presentation of Fish and Game, DWR and SRCD 22 would be provided by Mr. Kamyar Guivetchi, Mr. Lee Lehman 23 and Mr. Frank Wernette. 24 Unexpectedly, Mr. Lehman had this knee surgery. Mr. 25 Lehman is the Executive Director. Steve Chappell is his 2168 01 biologist. SRCD is a small operation. They only have about 02 four employees, and so Steve works very closely with Lee on 03 preparing any documents that come from SRCD. We all jointly 04 prepared this joint testimony. And all I am referring is 05 that -- not that Mr. Chappell is going to add anything more 06 than what Mr. Lehman would have added, but he is just going 07 to be in his place, and that we didn't have time to mail out 08 copies of Mr. Chappell's statement of qualifications. We 09 brought them here today to ask if we could do the 10 substitution. Then we would offer to mail the statement of 11 qualifications to other parties, and we also could send out 12 an errata on our DWR 29 and modify the footnote to indicate 13 that Steve Chappell would be doing the presentation for SRCD. 14 C.O. CAFFREY: Is the evidentiary exhibit itself a 15 product of this gentleman's or the gentleman who is not 16 here, or is it a combined product? Or are they both fully 17 expert on the testimony? What is the situation there? 18 MS. CROTHERS: I would describe it as a collaborative 19 effort on writing the DWR 29. It's a product of over the 20 last several years when we've had to make presentations on 21 the Suisun Marsh and the technical basis. I would say that 22 Steve Chappell and Lee Lehman are equivalent expert 23 witnesses on SRCD's operations. We have asked -- 24 We also could have Mr. Guivetchi make the same 25 presentation because they work so closely on this. But SRCD 2169 01 is the -- they are not a party to this hearing. They 02 elected just to be one of our expert witnesses instead of 03 becoming their own party here. SRCD is the expert on 04 implementing their marsh program, whether it's their 05 biologist or their Executive director. 06 C.O. CAFFREY: Let's hear from Mr. Brandt. 07 Thank you. 08 MR. BRANDT: Based on what I just heard, couple things. 09 One is perhaps we might be able to do this. He is a 10 percipient witness; he is involved in operations. So to the 11 extent that he is an expert on the operation of the SRCD, I 12 have no problem with that. 13 Where I do have a problem is if -- because I don't see 14 anything in DWR's testimony that has anything to do with 15 biology. I just wanted to make sure he is not here to give 16 any testimony as to his biological conclusions that go 17 beyond the scope or even within the scope, because I don't 18 see any biology testimony. That is all I want to make clear 19 here. I think he is fine as a percipient witness, an expert 20 on SRCD's operations. 21 C.O. CAFFREY: Mr. Brandt, we appreciate both your 22 objection and your acquiescence, for lack of a better term. 23 Let me just state, though, that we had a similar situation 24 in Phase II where someone was unable to present themselves 25 for similar types of reasons. They were medical reasons. 2170 01 In that instance we ruled to let the testimony go ahead. 02 There wasn't a clear demarcation in the written evidence 03 differentiating between the two individuals. 04 In this case, both based on your explanation and Mr. 05 Brandt's willingness to proceed under a certain 06 understanding, I am inclined to allow the witness to appear. 07 We can number the document that you have brought here 08 today. And, then, of course, Mr. Brandt has his full right 09 to cross-examine, and I am sure he will avail himself of 10 that opportunity, and then we will consider all of the 11 evidentiary exhibits when we get to that point in hearing 12 the cases in chief. 13 With that understanding, we will proceed. 14 Ms. Leidigh, did you want to say something or did you 15 want to assign a number at this point? Why don't we assign 16 an evidentiary exhibit hearing number. 17 MS. LEIDIGH: DWR has already marked their Summary of 18 Qualifications for Steven Chappell as DWR 38. 19 C.O. CAFFREY: Thank you. 20 MS. LEIDIGH: So, I think that is done. 21 MS. CROTHERS: Point of clarification, as a joint 22 panel presentation, there is a biological expert here on the 23 panel; that is Mr. Frank Wernette. He will be presenting 24 that portion of the joint testimony. 25 C.O. CAFFREY: I believe we all understand that, and 2171 01 Mr. Brandt is nodding in the affirmative. The concern is 02 that the other gentleman, whose name escapes me, does not 03 represent himself in his capacity here today as a biologist, 04 Mr. Chappell. 05 MR. CROTHERS: He will be representing himself as a 06 representative of SRCD and their role in implementing the 07 provisions of the Marsh Agreement. 08 C.O. CAFFREY: Please proceed. 09 MS. CROTHERS: That took care of one of my initial 10 points. What I would like to do is go through our exhibits 11 just for clarity at this point. I know they will be offered 12 in evidence later. 13 C.O. CAFFREY: That is fine. 14 MS. CROTHERS: We have several that will be referenced 15 during this presentation. 16 C.O. CAFFREY: You can identify them now. Go ahead. 17 MS. CROTHERS: We have on the board there a map, and 18 that is actually a copy of Figure 1 in DWR 30, Appendix A. 19 C.O. CAFFREY: Are you referring, just for the record, 20 for those who will be reading later, you are referring to 21 the white map or the beige map? 22 MS. CROTHERS: The white map that is labeled -- the 23 beige map labeled D 1485, Suisun Marsh Compliance Stations. 24 C.O. CAFFREY: Thank you. 25 MS. CROTHERS: You can see that same map referenced as 2172 01 DWR 30, Appendix A, Figure 1. 02 Then we have DWR 29 which is the written joint 03 testimony on the Marsh. 04 DWR 31, A through Q, which consists of overhead slides 05 used during the presentation. 06 DWR 30, which is a Draft Environmental Assessment 07 Initial Study, which was submitted for public review and 08 comments on June 20th. This draft EIS has several 09 appendices which will be referenced, and I will mention just 10 a few of importance for this presentation. 11 DWR 30, Appendix A, which is the draft agreement, 12 Amendment Three. 13 DWR 30, Appendix B, the demonstration document of 14 equivalent or better protection. 15 And DWR 30, Appendix L, the Individual Ownerships 16 Adaptive Habitat Management Plans. 17 C.O. CAFFREY: Do the staff synchronize with that 18 iteration of the evidence? 19 MS. LEIDIGH: I think so. 20 MS. WHITNEY: Yes. 21 C.O. CAFFREY: Everything is in order. 22 Thank you, Ms. Whitney. 23 Please proceed, Ms. Crothers. 24 ---oOo--- 25 // 2173 01 DIRECT-EXAMINATION OF 02 DEPARTMENT OF WATER RESOURCES, DEPARTMENT OF FISH AND GAME 03 AND RESOURCE CONSERVATION DISTRICT 04 MS. CROTHERS AND MR CAMPBELL 05 MS. CROTHERS: Mr. Guivetchi, please state and spell 06 your name and state your position at DWR. 07 MR. GUIVETCHI: I am Kamyar Guivetchi, spelled 08 K-a-m-y-a-r; last name, G-u-i-v-e-t-c-h-i. I am the Program 09 Manager of the Suisun Marsh Branch in the Environmental 10 Services Office of the Department of Water Resources. 11 MS. CROTHERS: Mr. Guivetchi, before you is a copy of 12 DWR Exhibit 8. Is this a true and correct copy of your 13 statement of qualifications submitted for this hearing? 14 MR. GUIVETCHI: It is. 15 MS. CROTHERS: Mr. Guivetchi, before you is DWR Exhibit 16 29. Did you work collaboratively with Mr. Chappell, Mr. Lee 17 Lehman and Mr. Wernette in preparing this document? 18 MR. GUIVETCHI: I did. 19 MS. CROTHERS: Mr. Guivetchi, is DWR 29 a true and 20 correct copy of this testimony? 21 MR. GUIVETCHI: It is. 22 MS. CROTHERS: Please summarize your testimony. 23 MR. GUIVETCHI: Chairman Caffrey, Board Members, Board 24 staff, if we can get the first transparency up, it will be a 25 summary of my presentation. 2174 01 C.O. CAFFREY: Mr. Guivetchi, to the other witnesses, 02 while that screen is coming down, let me just give a little 03 bit more housekeeping. When we are talking, we interrupt 04 you in your testimony to ask a question, a clarifying 05 question or for whatever reason, we don't penalize you 06 timewise. We stop the clock. 07 Secondly, there is a little light, which you probably 08 noticed, on THE table there. You each have 20 minutes, up 09 to 20 minutes for your presentation. When there are two 10 minutes left, the light will turn from green to yellow. 11 That will be a reminder to you to wind up your statement. 12 MR. GUIVETCHI: Thank you. 13 C.O. CAFFREY: Please proceed, sir. 14 MR. GUIVETCHI: The first slide is a summary of my 15 presentation. It is the information in DWR 31, which are 16 the presentation slides summarizing our joint written 17 testimony, DWR 29. 18 DWR, the Department of Fish and Game, SRCD and the 19 Bureau of Reclamation concluded negotiations on Amendment 20 Three of the Suisun Marsh Preservation Agreement. This 21 process began three years ago, and we have now identified 22 supplemental actions to improve marsh habitat on managed 23 wetlands in lieu of the large-scale facilities which are in 24 the original or current Suisun Marsh Preservation 25 Agreement. 2175 01 DWR, DFG and SRCD believe that the actions and 02 provisions in Amendment Three meet the 1995 Water Quality 03 Control Plan Western Marsh objectives. Secondly, that these 04 actions actually provide better protection for the entire 05 Marsh. And thirdly, that compliance stations, S-35 and 06 S-97, are no longer needed at this time. 07 The four parties of the agreement will execute and 08 implement Amendment Three after completing all of the 09 environmental documentation and the state and federal 10 Endangered Species Act consultations. We estimate that we 11 will be in a position to sign and implement the Agreement 12 early in 1999, and there may be a need to make modifications 13 or changes to the Amendment pending the results of the 14 formal consultation process on the Endangered Species Act. 15 Next slide please. 16 The next slide is an overview of our presentation. 17 Actually was in DWR 29. In the interest of time, I will not 18 be emphasizing Items 1, 2 and 3 in my oral presentation. I 19 will be spending some time explaining the changed conditions 20 that required us to develop Amendment Three and explain what 21 the consequences of those changed conditions have been and 22 what the consequences of not doing anything might be. 23 I will give a brief overview of the purpose, the 24 approach and actions in Amendment Three, and Mr. Steve 25 Chappell will help in the explanation of some of those 2176 01 actions in his presentation. Mr. Frank Wernette will 02 provide all of the description on the biological aspects and 03 conditions of actions or why these actions will provide 04 equivalent or better protection. I will have a brief 05 description of what will be needed to finally implement 06 Amendment Three, summarize the differences between Amendment 07 Three and Alternative 5 in the Draft EIR prepared by the 08 State Board, and then some concluding remarks and 09 recommendations. 10 Next slide, please. 11 I would only like to here state the purpose of the 12 Marsh objectives as is indicated in the environmental report 13 to the 1995 Water Quality Control Plan, because this purpose 14 really becomes -- is the kernel or the core of many of the 15 activities and provisions that we crafted in Amendment 16 Three. I would like to quote the purpose of the Suisun 17 Marsh salinity objectives is: 18 To provide water of sufficient quality to the 19 managed wetlands to achieve soil water 20 salinities capable of supporting the plants 21 characteristic of a brackish marsh. 22 (Reading.) 23 Much as you will hear, much of the activities and 24 actions and provisions in Amendment Three are directed at 25 achieving the saltwater salinities which are really at the 2177 01 heart of the Board's water objectives for the Marsh. 02 Next slide, please. 03 The changed conditions requiring Amendment Three really 04 came out of the Delta Accord, the subsequent 1995 Water 05 Quality Control Plan and then Order 95-6. Effectively, we 06 have one higher winter and spring Delta outflows with 07 reduced salinity carryover well into the summers as a result 08 of the 1995 Water Quality Control Plan, and this is in 09 comparison to D-1485 conditions. 10 Secondly, our field monitoring after the construction 11 and operation of the Suisun Marsh salinity control gates 12 have indicated that these gates are actually more effective 13 at reducing Suisun Marsh salinities in the Eastern and 14 Central Marsh than originally expected. 15 Based on these conditions, DWR and the other SMPA 16 parties have reviewed and evaluated the field data collected 17 over the last 18 to 20 years. We have also conducted model 18 results, both in support of the 1995 Water Quality Control 19 Plan at the request of State Board staff, and that 20 information is included in the State Water Resources Control 21 Board Staff Exhibit 72, as well as modeling done in support 22 of the Draft EIR prepared by the Board for implementing that 23 plan as indicated or presented in State Water Resources 24 Control Board Staff Exhibit 78. 25 The conclusions of these model studies indicate that, 2178 01 one, East and Central Marsh salinity objectives are met with 02 the operation of the initial facilities which are the 03 Roaring River distribution system, the Morrow Island 04 distribution system and the Goodyear Slough, as well as 05 operation of the Suisun Marsh salinity control gates, with 06 minor exceptions during drought periods. 07 Secondly, we observed that the Far Western Marsh 08 salinity objectives are still exceeded at times, but less 09 frequently and by a lesser amount. 10 Next slide, please. 11 This slide is an excerpt from State Water Resources 12 Control Board Staff Exhibit I, Page VII-28. It is excerpt 13 from Table VII-4, indicating the percentage of time that 14 standards in the Marsh at those indicated stations in the 15 left-hand column were exceeded over a 73-year hydrologic 16 period, 1922 through 1994. 17 What we see is both the monthly exceedances across the 18 top, October through May, which is the control season for 19 the Suisun Marsh, as well as the seasonal average over all 20 73 years, and something that we call an exceedance index, 21 which is an indicator of the amount of exceedance. So, we 22 have the frequency of exceedance shown under seasonal 23 average and the amount of exceedance shown under the 24 seasonal index. 25 What we see from this table in the Eastern Marsh all of 2179 01 the standards were met all of the time under Alternative 3, 02 which is the 1995 Water Quality Control Plan with operation 03 of the initial facility and with operation of the Suisun 04 Marsh salinity control gates. However, no other actions 05 were taken in Alternative 3 to explicitly try to meet the 06 Suisun Marsh salinity objectives. 07 We also see that S-42 and S-21, which are in the 08 Central/Western Suisun Marsh, are met almost all of the 09 time; and if we look at the exceedances that occurred in 10 February and if we look at the seasonal average, the 11 percentage of time over all 73 years we see that they're 12 less than 1 percent. And when you look at the exceedance 13 index, it was so small that it doesn't show in the tenth 14 column for the percent of exceedance. So the exceedance 15 that did occur that were 1 percent, less than 1 percent of 16 the time, were extremely small. 17 So, effectively, the model results suggest that S-42 18 and S-21 would be controllable as well with gate operations 19 and the other objectives in the '95 Water Quality Control 20 Plan. 21 However, we see that S-35 and S-97, we do exceed the 22 standards about 14 and one-half percent of the time at 23 S-35 and about 31 percent of the time at S-97. 24 Next slide, please. 25 One of the consequences of the changed conditions? 2180 01 First of all, DWR and USBR stopped work on the Western 02 Suisun Marsh Salinity Control Project, which was initiated 03 in 1990 and was stopped in 1995. This project was actually 04 aimed at coming up with the large scale facility or actions 05 needed to meet the D-1485 salinity objectives at S-35 and 06 S-97. But given the new conditions, it did not make sense 07 to proceed with that project and those facilities and 08 actions. 09 Secondly, we've now concluded, based on these model 10 studies and our data analysis, that additional large-scale 11 facilities will not be needed at this time for salinity 12 control in the Marsh. 13 Thirdly, we did identify that some supplement ag 14 management actions are needed for the Western Marsh managed 15 wetlands; that is because of exceedances that did occur at 16 S-35 and S-97. And these management actions are intended to 17 provide the soil salinity goal or purpose that was the 18 original intent of the water quality objectives in the '95 19 plan. 20 Finally, the consequence of no action would be we have 21 to provide with our current agreement, which would require 22 us to still consider building some facility, large-scale 23 facility, in the Western Marsh to try to bring that 15 24 percent and that 31 percent down to zero. 25 Next slide, please. 2181 01 An overview of Amendment Three. The overall umbrella 02 purpose of Amendment Three is to make the SMPA consistent 03 with the '95 plan and the changed conditions that I have 04 outlined. The approach that we used was to replace those 05 large scale facilities that are in the original SMPA and to 06 focus with activity that would improve water and land 07 management to achieve the same habitat goals. 08 Secondly, because we did not want to get involved in a 09 lengthy environmental documentation process that would 10 require an EIR/EIS, during which time there would actually 11 be no relief in the Western Marsh -- for the Western Marsh 12 managed wetland, we selected actions and provisions that can 13 be implemented under our existing permit. 14 Next slide, please. 15 The four primary objectives of the provision and 16 actions in Amendment Three are: 17 One, to provide funds to wetland managers in the 18 impacted areas to include water and land management. 19 Two, to maintain soil salinity within the range 20 characteristics of brackish soil, as outlined by the Soil 21 Conservation Service in 1977. 22 Third, to improve water and wildlife habitat on the 23 managed wetlands throughout the entire Marsh and not to just 24 focus on the Western Marsh. 25 And, finally, to broaden our existing mitigation 2182 01 activities, and by doing so to emphasize management, 02 restoration projects and studies to mitigate for impacts on 03 listed and sensitive species. 04 Next slide, please. 05 Things that we considered in developing these actions 06 and provisions, the primary ones, are listed on this 07 transparency. First of all, we looked at our observed data 08 over the last ten years and saw that it is very important to 09 have land, proper land and water management on the managed 10 wetlands to achieve the habitat and soil salinity goals; and 11 that the consequence of not doing so means that even though 12 the channel water salinity may have been in the range 13 required by the State Board, the soil goals and the habitat 14 goals were not met. 15 Secondly, we have seen, having gone through a six-year 16 drought, the importance of management activities during 17 prolonged drought conditions. 18 Thirdly, we recognized that there is a wide salinity 19 variation over the diurnal tide where high salinity 20 generally occur on the high tide and low salinity generally 21 occur on the low tide. The fact is that most of the managed 22 wetlands in the Marsh take their water or divert water on 23 high tide using gravity flow through culvert pipes. 24 Therefore, currently they are primarily using the high tide 25 salinity or water at the high tide. In fact, that is why 2183 01 the State Board standards are specified as the mean monthly 02 high tide salinity. 03 However, we recognize that because there are lower 04 salinity at low tide, there may be an opportunity to get 05 lower salinity water on these managed wetlands. 06 Fourth, we recognize that the Marsh -- the flows 07 entering into the Marsh from the peripheral creeks are 08 unaffected by the State Water Project and the Central Valley 09 Project operations or other upstream diversions on the main 10 stream of the Sacramento or San Joaquin Rivers. 11 Finally, we recognize that the original SMPA did not 12 account for a prolonged drought as we observed during 1987 13 through 1992. 14 Next slide, please. 15 I would like to show two slides that will help 16 illustrate the two points about the importance of management 17 and the consequence of management or mismanagement or lack 18 of management during drought conditions. 19 This is from DWR Exhibit 30, Appendix B, Page 17. It 20 is Figure 7. It is a trend plot in bar chart form from 1985 21 through 1994. This is observed field data collected by the 22 Department of Water Resources. It is soil salinity data in 23 average spring conditions, meaning data from March, April 24 and May which were averaged together at two clubs in the 25 Western Marsh, the Goodyear Club and the West Family Club. 2184 01 The reason these two clubs are being presented here, 02 the Goodyear Club being in the light bars and the West 03 Family in the dark bars, is that the Goodyear Club has no 04 active management practices, has had no active management 05 practices during this time period. While the West Family 06 Club has conducted routine circulation of pond water as well 07 as one to two leach cycles in the spring. 08 What we see is that, first of all, the soil salinity at 09 the West Family Club are across the board lower than the 10 Goodyear Club. The other thing that I would like to 11 emphasize is that both of these clubs take water from 12 Goodyear Slough of the same quality. So while they started 13 with the same diversion quality, the soil salinity that 14 resulted was quite different because of the management 15 practices undertaken. 16 The other point we see here is that because this 17 includes the 1987 through 1992 drought conditions, the 18 Goodyear Club showed increasing salinity during that period, 19 and the West Family Club actually showed a decline of soil 20 salinity even though the diversion quality was very salty 21 during that drought period. 22 Next slide, please. 23 This is an excerpt from DWR Exhibit 30, Appendix B, 24 Page 20. It is Figure 11. This is to illustrate the fact 25 that salinity varies at some locations in the Marsh quite 2185 01 appreciably between high tide and low tide, and that there 02 may be an opportunity to take there. We have shown the 03 period of October 1st, 1992 through October 15th, 1992, 04 because this is the fall that followed the six-year 05 drought. So conditions were very salty and dry in the 06 Marsh. This is location S-21. It is on the top panel 07 showing 15-minute stage in salinity data. The stage data 08 are the dark lines. The salinity data are the light lines. 09 While it may be a little difficult to see from that 10 distance, what I assure you, on closer inspection the high 11 salinities occur at the high tides, the low salinities occur 12 at the low tides. 13 The other important fact of showing this particular 14 period, the October period, is this is the period when most 15 all of the managed wetlands are doing their initial fill-up, 16 getting ready for waterfowl hunting season. This is, in 17 fact, indicative of the diversion qualities that they would 18 be experiencing. 19 The lower plot shows two things. One, in the circles, 20 the lines that are connected by the circles, that is the 21 mean high tide salinity for the data on the top panel as 22 specified in the Water Quality Control Plan. The line 23 connecting the solid squares are the mean daily salinity; 24 that is, if all the salinity data were averaged together. 25 And we see it is, in fact, lower by several millisiemens 2186 01 across the board. 02 The other thing to note is, if, in fact, a managed 03 wetlands were to take salinity only on the low tides, which 04 is not shown up here, the diversion salinity would be lower 05 yet. 06 Next slide, please. 07 C.O. CAFFREY: You have about 20 seconds left, Mr. 08 Guivetchi. I don't know if you noticed the yellow light 09 came on. 10 MR. GUIVETCHI: I did not. 11 What I would I like to do, Mr. Wernette will be doing 12 similar conclusions and recommendations, so I will skip that 13 slide. I would like to just note some of these actions. 14 The salinity standards in Table 1 of the draft 15 agreement are identical to the Water Quality Control Plan 16 for all stations, except S-35 and 97. We are proposing to 17 drop S-35 and 97 as compliance stations. But the remaining 18 actions would be to provide the equivalent protection. We 19 would be offering to operate the set criteria to operate the 20 salinity gates in September. Mr. Chappell will be talking 21 about the remaining actions on that slide. 22 We can go on to the next slide -- 23 C.O. CAFFREY: I have to stop you there, Mr. Guivetchi. 24 We have been strict on this rule, and if I allow you more 25 than 20 minutes on your direct, which is really supposed to 2187 01 be just a summary of what has already been submitted, I 02 would be denying the right to all the people that have come 03 before in other phases of this hearing and have not been 04 given that, have not been afforded that extra time. 05 We have your evidentiary exhibit. We have your 06 testimony up to this point. So it's all in the record. 07 With that, then, we need to go to the next witness. 08 Who will that be, Ms. Crothers? 09 MS. CROTHERS: Thank you. Mr. Steve Chappell from the 10 Suisun Resource Conservation District. 11 Mr. Chappell, please state and spell your name and give 12 your position at the Suisun Resource Conservation. 13 MR. CHAPPELL: My name is Steven Chappell, S-t-e-v-e-n 14 C-h-a-p-p-e-l-l. I am the district biologist with the 15 Resource Conservation District. 16 MS. CROTHERS: Mr. Chappell, how long have you worked 17 for SRCD on Suisun Marsh issues? 18 MR. CHAPPELL: Four years. 19 MS. CROTHERS: Before you is a copy of DWR Exhibit 38. 20 Is this a true and correct copy of your statement of 21 qualifications? 22 MR. CHAPPELL: Yes, it is. 23 MS. CROTHERS: I would like you to know that DWR would 24 be submitting this. Well, we have submitted it to the Board 25 already. We will be mailing it to all the parties today. 2188 01 Is that all right? 02 C.O. CAFFREY: Is that satisfactory, Ms. Leidigh, they 03 have made copies and distributed it during the proceeding? 04 MS. LEIDIGH: That has happened before, if nobody has 05 any objection. 06 C.O. CAFFREY: Does anybody have any objection waiting 07 for the mail? 08 MS. CROTHERS: Well, actually, all the people here 09 today have copies. I meant to the parties not present. We 10 made a hundred copies today. 11 C.O. CAFFREY: That is fine. I thought you were 12 talking about the people here in the audience weren't going 13 to have copies. 14 MS. CROTHERS: I believe we have to send it to all the 15 parties. I want to make that clear. 16 Mr. Chappell, before you is DWR Exhibit 29. Did you 17 work collaboratively with Mr. Lee Lehman, Mr. Guivetchi and 18 Mr. Wernette in preparing this document? 19 MR. CHAPPELL: Yes, I did. 20 MS. CROTHERS: Mr. Chappell, is DWR 29 a true and 21 correct copy of this testimony? 22 MR. CHAPPELL: Yes, it is. 23 MS. CROTHERS: Please summarize your testimony. 24 MR. CHAPPELL: Today I would like to give a brief 25 background on the Resource Conservation District role in the 2189 01 Marsh. The Suisun Resource Conservation District is a 02 special district of the State of California and was created 03 in 1977 by the passage of Assembly Bill 1717. This 04 legislation not only created the Suisun Resource 05 Conservation District, but it also gave the District the 06 primary local responsibility for regulating and approving 07 water management practices on privately owned land within 08 the primary management area of the Suisun Marsh. 09 The Suisun Resource Conservation District boundaries 10 include approximately 30,000 acres of bays and sloughs, 11 27,000 acres of uplands, 6,000 acres of tidal wetlands, 12 which is 52,000 acres of diked, managed wetlands. Of these 13 wetland acreages Department of Fish and Game owns 14 approximately a quarter, and the remaining three-quarters 15 are owned by private landowners in the Marsh, totaling 158 16 landowners. 17 The Suisun Resource Conservation District works 18 cooperatively with federal, state and local agencies to 19 represent and assist landowners in wetland management and 20 habitat restoration enhancement programs. With regard to 21 the Suisun Marsh Preservation Agreement, Amendment Three, 22 SRCD will play a crucial role in the long-term continuation 23 and implementation of this program. Most of the actions 24 described in the Suisun Marsh Preservation Agreement, 25 Amendment Three, are funding actions to allow SRCD to assist 2190 01 the private landowners in the effective and efficient 02 management of their properties to insure perpetuation and 03 improvement of high quality wildlife habitat in the Suisun 04 Marsh managed wetlands. 05 My first slide will be discussing one of 11 actions 06 which are proposed in the Amendment Three, which is the 07 water management program. 08 SRCD shall institute the water management program and 09 employ staff to help coordinate and approve water management 10 actions throughout the Marsh. The water manager program was 11 suggested by the State Water Quality Control Board in May of 12 1995 Water Quality Control Plan. This plan stated a need 13 for a water master to direct the timing, the amount of water 14 diverted to insure that the water is used efficiently and to 15 maximize the protective beneficial uses. 16 The Suisun Marsh Water Management Program will not 17 function as a water master, as defined by the State Water 18 Code, but instead will be similar to an agricultural 19 extension service as we see it today. This program will 20 provide a cooperative service between SRCD and the private 21 landowners in the Marsh. The water managers would provide a 22 technical support to th wetland managers, assist in 23 implementation of Bureau management strategies as outlined 24 in the individual ownership adaptive management plans. 25 Under the implementation of this program, the water 2191 01 managers' duties would include, next slide, please, taken 02 from DWR Appendix B, Page 42-43, overseeing compliance with 03 individual ownership management plans, implementing portable 04 pump program, monitoring and operation of maintenance of 05 fish screen facilities currently installed in the Marsh, 06 obtaining agreements between landowners and SRCD for 07 coordination of water management, between property owners 08 and joint-use facilities, promoting efficient use of 09 available channel water to protect and maximize the 10 beneficial uses for habitat, and recommend habitat 11 improvement for the water management techniques. 12 The second activity which I will be discussing today 13 is updating of existing management plans. 14 Next slide, please. 15 In 1980 and '82 USDA Soil Conservation Service 16 developed management plans for each of the 158 privately 17 owned wetlands in the Marsh. These plans were one to two 18 pages and documented the properties' facilities and 19 management capabilities. At the time when these plans were 20 written, they were presented as the most recent scientific 21 information available to the landowners about specific 22 waterfowl food plant growth in the managed wetlands. 23 The management plans have not been modified or updated 24 since they were written over 15 years ago and no longer 25 reflect many of the properties' physical facilities, the 2192 01 management constraints or the current environmental or 02 regulatory restrictions that govern the Suisun Marsh 03 wetlands today. 04 Updated management plans will enable SRCD to go out in 05 the field on each of the 159 properties, collect field 06 information and write an update aversion of the properties. 07 With this, the existing facilities, diversion drain pipes, 08 marsh habitat conditions and hydrology and also run an 09 engineering calculation to insure that the properties can 10 flood and drain the properties in 30 days to achieve the 11 goal that's been set out since the original plans. 12 The recommendation of management have been modified to 13 expand and include more diversity in the wetlands among 14 waterfowl food plants and wildlife habitat in the Marsh. 15 Next slide, please. 16 This is a table of contents taken from DWR 30, Appendix 17 L, which is the draft narrative of the individual ownership 18 adaptive management habitat plans, which will replace the 19 old two-page management plans for each property. These 20 plans currently are in draft for about a hundred pages, and 21 it will be a new program. 22 Some of the activities that will be covered under this 23 will be an introduction, history of the Marsh for the 24 landowners, a description of the hydrodynamic model to 25 assist the landowners in figuring their 30-day flood and 2193 01 drain system, management options that the landowners can 02 take care of. This is the yearly management decision matrix 03 about what activities they should be performing on their 04 properties, and then management activities, intake 05 restrictions, water management schedules, water depth, all 06 of these are environmental, physical and management 07 constraints which affect landowner management on a yearly 08 basis and have to be considered. 09 In addition to that, there will be an updating of the 10 management facilities. In many cases water control 11 structures have been modified since the plans were written 12 15 years ago. Plus the plans no longer represent the actual 13 property infrastructure or management capabilities. 14 On several properties water control structures have 15 been replaced, lowered, removed or no longer exist and 16 improvement in facilities have occurred such as fish screen 17 installations and portable pumps or pump installation to 18 assist in draining water. 19 The endangered species section is new for the 20 management plans to assist landowners in understanding the 21 outdated management plans didn't take into account the 22 regulatory restrictions of endangered species habitat 23 protection in the Marsh. The individual ownership plans 24 will provide background about the listed species, habitat 25 requirements, the existing regulatory restrictions and 2194 01 options for wetland maintenance and management activities 02 aimed at providing protection of these species in the 03 managed wetland areas. 04 In addition to that, there is permitting restrictions 05 which the district has to relay to the landowners to assure 06 that all work activities are in compliance, and that will be 07 outlined as well as Solano County mosquito abatement 08 restrictions on vector control to not impact urban areas 09 around the Marsh. Appendices of individual property data 10 will be helpful information for the landowner, and each site 11 will have -- there will be 158 site specific plans for each 12 property in the Marsh. 13 The third activity that I would like to discuss is the 14 joint-use facility program. 15 C.O. CAFFREY: Ms. Forster. 16 MEMBER FORSTER: Did you say 156 plans or plants? 17 MR. CHAPPELL: Plans. There is 158 individual 18 properties in the Marsh, and there will be 158 plans for 19 each individual property. 20 The last action that I will discuss are the joint-use 21 facility programs. The purpose of the joint-use facility 22 program is to improve efficient and cooperative use of water 23 delivery systems to the managed wetlands with the 24 landowners. Joint-use facilities are structures or 25 activities used by two or more property owners to manage 2195 01 their water either separately or jointly as agreed upon. 02 The district would be implementing these agreements. 03 Specific joint-use activities are identified as 04 interior circulation ditches, cleaning and draining of 05 circulation ditches, coring of common levees, installation 06 of new interior water control structures and new interior 07 drain gates, pumps and operation of the fish screen 08 facilities that have been installed. Joint-use facilities 09 can include newly constructed facilities or improvement in 10 existing facilities. 11 In conclusion, SRCD believes that Amendment Three of 12 the Suisun Marsh Preservation Agreement, as proposed today, 13 will provide equivalent or better protection of the Suisun 14 Marsh resources and will achieve the goal of meeting the 15 Suisun Marsh 1995 Water Quality Control Plan objectives. 16 The 11 actions outlined in Amendment Three and the water 17 quality standards included in Amendment Three assure the 18 ability of Suisun Marsh landowners to effectively and 19 efficiently manage the dike-managed wetlands and protect and 20 sustain the beneficial uses of the wetlands today. 21 That concludes my testimony. 22 C.O. CAFFREY: Thank you, Mr. Chappell. 23 Mr. Wernette, we're going to go directly into yours? 24 Mr. Campbell, come forward please. 25 MR. CAMPBELL: Matthew Campbell for the Attorney 2196 01 General's office on behalf of the Department of Fish and 02 Game. 03 Mr. Wernette, will you please state your full name and 04 spell your full name. 05 MR. WERNETTE: My name is Frank Wernette. Last name is 06 spelled W-e-r-n-e-t-t-e. 07 MR. CAMPBELL: What is your current occupation, Mr. 08 Wernette? 09 MR. WERNETTE: I'm a senior biologist with the 10 Department of Fish and Game, Bay-Delta office. 11 MR. CAMPBELL: How long have you worked in that 12 capacity? 13 MR. WERNETTE: I've been a senior biologist since 1990, 14 been with the Department 25 years and 18 of those working on 15 Suisun Marsh planning and management issues. 16 MR. CAMPBELL: Are you familiar with Department of Fish 17 and Game Exhibit Number 2? 18 MR. WERNETTE: Yes, I am. 19 MR. CAMPBELL: Is that a true and correct statement of 20 your qualifications? 21 MR. WERNETTE: Yes, it is. 22 MR. CAMPBELL: Are you familiar with DFG Exhibit 22? 23 MR. WERNETTE: Yes, I am. 24 MR. CAMPBELL: Do you have that before you? 25 MR. WERNETTE: Yes, I do. 2197 01 MR. CAMPBELL: Is that a true and correct copy of your 02 testimony as submitted to the Board? 03 MR. WERNETTE: Yes, it is. 04 MR. CAMPBELL: Are you familiar with DFG Exhibit 23? 05 MR. WERNETTE: Yes, I am. 06 MR. CAMPBELL: Could you, please, briefly describe for 07 me what that exhibit is. 08 MR. WERNETTE: It is the entire Department of Fish and 09 Game comment letter on the Board's Draft EIR. 10 MR. CAMPBELL: Did you participate in the preparation 11 of that comment letter? 12 MR. WERNETTE: Yes, I did. 13 MR. CAMPBELL: Is this a true and correct copy of that 14 comment letter? 15 MR. WERNETTE: Yes, it is. 16 MR. CAMPBELL: I would like to draw your attention to 17 DFG Exhibit 24. Could you please describe what that is. 18 MR. WERNETTE: It's, at this time, the latest draft of 19 Amendment Three to the Suisun Marsh Preservation Agreement. 20 MR. CAMPBELL: Did you participate in the creation of 21 that draft? 22 MR. WERNETTE: I did at the technical level. I was a 23 support for our principal negotiator, Pete Chadwick. 24 MR. CAMPBELL: Have you received that draft in the 25 course and scope of your employment? 2198 01 MR. WERNETTE: Yes. 02 MR. CAMPBELL: Is that a true and correct copy of DFG 03 Exhibit 24? 04 MR. WERNETTE: Yes, it is. 05 MR. CAMPBELL: Turning to DFG Exhibit 25, could you 06 please briefly describe what that is. 07 MR. WERNETTE: What these are are recommended criteria 08 that we presented to the Board in their spring workshop, and 09 they are captured here in Exhibit 25. 10 MR. CAMPBELL: Did you participate in the development 11 of that criteria? 12 MR. WERNETTE: Yes. 13 MR. CAMPBELL: Is DFG Exhibit 25 a true and correct 14 copy of that criteria? 15 MR. WERNETTE: Yes, it is. 16 MR. CAMPBELL: Now turning to DFG Exhibit 26, can you 17 please briefly describe what that is. 18 MR. WERNETTE: It is a draft biological opinion under 19 the California Endangered Species Act addressing Amendment 20 Three. 21 MR. CAMPBELL: In the course and scope of your 22 employment, did you participate in the development of that 23 draft? 24 MR. WERNETTE: Yes. 25 MR. CAMPBELL: Is that a true and correct copy of DFG 2199 01 Exhibit 26? 02 MR. WERNETTE: Yes, it is. 03 MR. CAMPBELL: Turning your attention back to DFG 04 Exhibit 22, could you please summarize your testimony. 05 MR. WERNETTE: I would be happy to do that. 06 MR. CAMPBELL: Thank you. 07 MR. WERNETTE: Thank you. 08 One of the principal goals of my testimony today and 09 our written testimony for the Department of Fish and Game is 10 to confirm our support for Amendment Three to the Suisun 11 Marsh Preservation Agreement. To accomplish that, we had 12 four key points or four key issues related to my testimony. 13 First is describing the biological benefits of 14 Amendment Three, briefly applying some of the criteria that 15 Matt described in the exhibit to Amendment Three and 16 provisions of it, briefly describing what our draft 17 biological opinion says about Amendment Three and last 18 describing what we see as the role of Suisun Ecological Work 19 Group in facilitating improved environmental protection for 20 the Marsh. 21 Tony has the first up. 22 In order to accomplish the first, which is describing 23 the biological benefits of Amendment Three, it's important 24 to reiterate what the objectives of the Suisun Marsh, 25 salinity objectives, are. And although Kamyar read this, 2200 01 and I think it is important to highlight this, and I will 02 paraphrase it in terms of those criteria or those objectives 03 being set up to provide a sufficient water quality to those 04 managed wetlands in the Marsh to give them the capability to 05 achieve soil water salinities, to sustain plant communities 06 that are found on managed wetlands, particularly plant 07 communities that support waterfowl, wintering waterfowl. 08 With that in mind, there are few -- I think it is 09 important to keep in mind that the standards were developed 10 by the Board to be high tide standards; and this is simply 11 because most, if not all, of the managed wetlands depend on 12 taking water in at high tides, a gravity flow system rather 13 than at this time, rarely do our pumps use in order to fill 14 the wetlands. So the standards are high tide standards to 15 deal with the gravity diversions. And the goal was to 16 achieve target salinities in the soil of about nine parts 17 per thousand. That was deemed to be sufficient on clubs 18 that are well managed to achieve the waterfowl food plant 19 production and waterfowl food cover that we wanted to 20 achieve for waterfowl in the Marsh. 21 To give you an update on it, I think that since we 22 testified here to the Board on those standards and the 23 reason for them, there has been an evolution and improved 24 understanding of the Marsh and how it manages an ecosystem 25 and how those wetlands, managed wetlands, are actually -- 2201 01 how effectively they can be managed with the current 02 conditions. 03 And one of the things that has advanced in our 04 understanding is that the Marsh originally we always -- in 05 the early days just wanted to achieve as fresh a salinity as 06 we could in all the channels throughout the Marsh. Some of 07 the ideas that were presented early on were fairly drastic 08 modifications of flow pipe lines and those kind of 09 facilities in order to achieve them were a uniform salinity 10 gradient and a fresher gradient in the Marsh. 11 I think that we've recognized that it is a natural 12 system to have an east-to-west salinity gradient and a 13 north-to-south salinity gradient that makes sense from the 14 standpoint in managing a marsh. Secondly, those large-scale 15 facilities that we originally envisioned would really not be 16 needed to achieve that uniform salinity across the Marsh, 17 and they, in and of themselves, had severe impacts, and some 18 of those impacts on listed species. 19 Third, the importance of wetland management, Kamyar 20 described two examples of two clubs; one that managed well, 21 and one that didn't under the same salinity regime and had 22 drastic differences in their soil salinity. I think one way 23 I look at it and it helps me explain what we are talking 24 about is that in the Marsh good management can compensate 25 for less than optimal salinity applied to those wetlands, 2202 01 but the reverse is often not true. 02 So with his new views about the Marsh and how it is 03 managed and the importance of some of the other wetlands in 04 the Marsh, tidal wetlands and the upland transitions between 05 the uplands and the tidal wetlands and their importance, 06 basically, we are where we are today. Not only in the Water 07 Quality Control Plan, but also in Amendment Three; and that 08 is a recognition of the east-to-west salinity gradient. And 09 I think the salinity standards in the '95 plan and also in 10 Amendment Three reflect that. We have removed the 11 large-scale facilities and the impacts associated with 12 those. We have recommended and have in Amendment Three 13 modifying S-35 and S-97 from compliance stations to 14 monitoring stations and provided a broad suite of measures 15 to improve the capability of wetland managers to manage 16 their seasonal wetlands. 17 We've concluded that Amendment Three will provide 18 environmental protection equivalent or better than the '95 19 Water Quality Control Plan objectives. There are four main 20 reasons for that. 21 One of them is the suite of wetland management 22 facilities that I will go into a little bit. Tony has 23 overhead L which gives a little bit of an update of that, 24 or an overview. I will go back to that in about two 25 seconds. 2203 01 This is overhead L which is from DWR 31. Operation of 02 the exist facilities in the Marsh, both the initial 03 facilities and the salinity control gates, to do as 04 effective job as they can, drought response fund and 05 September gate operations, and I'll go back into those in a 06 little more detail to draw the linkage between the logical 07 benefits of those. 08 On overhead L, which Tony has up, are some of the ones 09 I'd like to draw your attention to. Steve did a good job of 10 describing what capabilities the water manager program will 11 give the district. From the perspective of the background I 12 gave a few minutes ago, the club managers -- I guess the 13 uniformity of management across the Marsh was all over the 14 board. In the past some people would leave as soon as the 15 waterfowl season was over. They drained. They locked the 16 clubhouse doors. They'd go home, and that was the last 17 they'd see of their club until the following fall. 18 The need to have uniform aggressive management 19 throughout the spring in preparation for the fall the 20 following year really is the outgrowth of why we have the 21 water manager program. The manager is going to have the 22 capability of fine-tuning the leaching and draining cycles 23 that are needed to achieve the biological benefits that are 24 really, as Kamyar pointed out, are the core of the 25 objectives of the salinity standards in the Marsh for the 2204 01 managed wetlands. 02 One of the other items is, as Steve described at the 03 bottom, is the joint-use facilities. Those, again, are 04 going to take clubs and managed wetlands in close 05 association and allow them to be more effectively managed, 06 again, to bring water on and remove it in order to achieve 07 those target Marsh channel salinities to achieve wetland and 08 wildlife benefits. 09 If you could go to overhead M, Tony, I'd appreciate it. 10 I will pick a couple off of this. One of the ones that 11 I would like to focus on are the portable diversion -- pump 12 and diversion aspect of the program. The goal of the 13 management of the wetlands to achieve the biological 14 benefits has been to try to get water on and drained in a 15 30-day period. There are clubs that are either too high or 16 too low to give them that capability. This portable pump 17 program will allow those higher clubs to fill more and take 18 advantage of what Kamyar presented in some locations in the 19 Marsh where salinities are lower typically at low tide. 20 Most clubs cannot take advantage of that water. Diversion 21 pumps will allow them to take water at a lower tide, and it 22 will be water that has a lower salinity. And applying lower 23 salinity to those clubs will clearly reduce the salt loading 24 and allow them to be more effective later on in managing 25 their clubs. 2205 01 The drain facility, on the drainage capability provided 02 by the pumps is an important aspect because a lot of the 03 Marsh is very low and most clubs cannot drain in the 04 sufficient time to bring what water is applied down through 05 the soil column and to remove the salt load. So, those are 06 key facilities. 07 In the interest of time I won't go through each of 08 these to draw out the biological benefits. But I think the 09 suite of those on club management improvements are all going 10 to contribute toward the overall conclusion of providing 11 better or equivalent protection. 12 Going back to the drought response fund, there are 13 times when, in the locations of S-35 and S-97, where the 14 standard will be exceeded. There will be times where even 15 more aggressive management practices will have to be 16 employed; and the cost associated with that, the actual work 17 on the club can be offset by the additional funding provided 18 through that drought response fund. That fund doesn't just 19 deal with the drought, but a year or two after the drought 20 which is when most of these clubs are trying to improve 21 management and get back the Marsh and improvement in 22 supporting the specific types of wetlands that they want to 23 try to achieve on their wetlands. It just doesn't come back 24 in one year. It may take a year past the drought in order 25 to achieve that. 2206 01 Lastly, the salinity gate operations allows for in the 02 front end of the season the capability of reducing the 03 amount of salt that is applied in the fall during the 04 flood-up for waterfowl season. That is a key time when most 05 of the water is being applied by reducing the inventory of 06 salt on those clubs. It will give them a head start in the 07 spring in terms of getting those soil salinities down to the 08 levels that they need. 09 I think that concludes my section in terms of the 10 biological benefits of some of these actions. I did want to 11 take a minute or two just to describe briefly how we applied 12 those April '98 workshop criteria to Amendment Three. 13 C.O. CAFFREY: Mr. Wernette, I can just tell you that 14 you have about six and a half minutes left. I think you are 15 being very efficient. I notice you are not wearing a watch, 16 and you seem to be concerned about the time, so you do have 17 six and a half minutes. 18 MR. WERNETTE: Thank you very much. 19 We selected several criteria from that list of 20 criteria. Those criteria were developed to apply to a lot 21 of the phases of the Bay-Delta program. So a lot of them 22 don't apply to what we are talking about in the Suisun 23 Marsh, but there were a couple that we thought were worth 24 pointing out today. 25 One of them is, we wanted to advise the Board that they 2207 01 select an alternative that minimizes adverse effects on 02 listed species. In the case where we've laid out where we 03 have removed large sale facilities, we believe that that is 04 consistent with that criteria. We don't need large-scale 05 plumbing facilities, large ditches that effect endangered 06 species habitat to achieve what we want to accomplish with 07 Amendment Three. 08 Another was consistency with some other programs that 09 are going on right now. One of them that is very 10 significant is the CalFed Bay-Delta program. In that 11 program they have an ecosystem restoration program planned 12 that has specific targets for Suisun Marsh, and we wanted to 13 make sure that no alternative would be selected that would 14 either preclude their achieving their targets or actually 15 interfere directly with them. 16 I think I will highlight that specifically, that in 17 that plan for the CalFed program they have a target of 18 assisting wetland managers to protect and improve management 19 of the seasonal wetlands that will remain in seasonal 20 wetlands in the Marsh. We have clearly laid out that that 21 is consistent with what Amendment Three is going to do. It 22 also has targets for tidal wetlands restoration. There is a 23 component of Amendment Three which is related to a remaining 24 balance in the mitigation fund of $3,000,000 that had 25 originally been targeted toward additional seasonal wetland. 2208 01 We've modified that approach and will amend that mitigation 02 agreement to allow that money to be used to restore tidal 03 wetlands; and that basically, not only will it not conflict 04 with CalFed program goals, but actually will assist in 05 achieving some of those goals. 06 I would like to shift to our biological opinion. 07 Again, real quickly, we have made draft findings of no 08 jeopardy with the implementation of Amendment Three. Those 09 findings apply to the listed fish in the Marsh, also clapper 10 rail and salt rail harvest mice. 11 With regards to incidental take, there are in place two 12 core permits and associated federal biological opinions for 13 the management of the Marsh and also for the facilities that 14 are DWR implemented in the plan of protection that have 15 specific conditions. And if those conditions are followed 16 and we take the 3,000,000 and target tidal wetlands 17 restoration and implement what DWR has started and what the 18 Bureau, which is an environmental coordination advisory 19 team, to insure whatever the specific permit terms are 20 complied with, take that associated with Amendment Three 21 would be authorized under this state Endangered Species 22 Act. 23 I will shift now to where we see the Suisun Ecological 24 work group. We feel very strongly that that group is as a 25 collaborative effort or place where scientific dialogue is 2209 01 going to occur between scientists from all spectrums and 02 from many agencies and also academic scientists, that that 03 is the place where we are going to have a lot of dialogue 04 about this. There is a broad difference of opinion in terms 05 of what the Marsh needs, in terms of whether there needs to 06 be changes in the salinity objectives and what types of 07 objectives should be in place for the narrative standard 08 that is currently in the plan. 09 That is the proper form for that dialogue to occur in. 10 We are participating fully in it, and we would expect that 11 that group would be prepared to present recommendations to 12 the Board in time for this next triennial review for 13 consideration by the Board. 14 In conclusion -- Tony, if you could put up overhead Q 15 from DWR 31. This is the same slide that Steve spoke from 16 in regards to the conclusions and recommendations. It is my 17 opinion that implementing Amendment Three will provide 18 environmental protection equivalent to or better than the 19 provisions for the '95 Water Quality Control Plan, 20 particularly in those areas near S-35 and S-97. It is also 21 my opinion that Amendment Three, implementation of 22 Amendment Three would satisfy the State Water Projects and 23 CVP's responsibilities for meeting the Suisun Marsh salinity 24 objectives that are in that plan. 25 Last, I then want to reemphasize our strong commitment 2210 01 to not only participate in the SEW process, but also help 02 with the federal Endangered Species Act consultation that 03 will be starting informally now, but will be formal in the 04 next month or two, and help with that, and also help with 05 implementing, directly helping implement some of the 06 mitigation actions that we have described that that 07 $3,000,000 will be used for. 08 With that, I would like to conclude and say that I have 09 basically covered the summary of my testimony. 10 C.O. CAFFREY: Thank you very much, Mr. Wernette. 11 What we will do now, we will take our standard 12 twelve-minute break, and then we will come back for 13 cross-examination, if there is any. 14 MS. CROTHERS: I would just like to make a brief 15 announcement that the opening statement that some of you may 16 have received from DWR may be missing Page 3. I have extra 17 copies of that. 18 MR. ETHERIDGE: Mr. Chairman, before we take our break, 19 may I ask a further question? 20 C.O. CAFFREY: Identify yourself for the record. 21 MR. ETHERIDGE: Yes, Mr. Caffrey. I am Fred Etheridge 22 from the East Bay Municipal Utility District. 23 C.O. CAFFREY: We know you, of course, Mr. Etheridge, 24 but we want it -- 25 MR. ETHERIDGE: For the record. 2211 01 C.O. CAFFREY: Thank you. 02 MR. ETHERIDGE: I just have a brief procedural question 03 that concerns the potential start of Phase IV. We have 04 witnesses on standby in the Bay Area and if things go well 05 today in Phase III, I don't want to tempt fate, here, but if 06 Phase II finishes quickly, suppose it finishes after Mr. 07 Brandt's witnesses this afternoon at 1:30 to 2:00, would the 08 Board plan to start Phase IV this afternoon or tomorrow 09 morning? 10 C.O. CAFFREY: Actually, Mr. Stubchaer and I conferred 11 a little while ago. We are going to go to midnight 12 tonight. 13 MR. ETHERIDGE: I will tell them to be here. 14 C.O. CAFFREY: Want to make sure I got everybody's 15 attention. 16 MR. ETHERIDGE: You did. 17 C.O. CAFFREY: You raise a very important question. 18 You have been very diligent in asking a number of times over 19 the last few days, and I appreciate that. Let me just say 20 that -- let me go to Mr. Brandt for a minute. 21 Mr. Brandt, you're going to have a witness that won't 22 appear till 1:00; is that correct? 23 MR. BRANDT: Correct. 24 C.O. CAFFREY: I don't think we are -- let's just agree 25 that we are not going to get to Phase IV today. Even if it 2212 01 takes only one hour to complete Mr. Brandt's case in chief, 02 we still have to go to rebuttal, what have you. Even if 03 we're done at 2:00, that is enough for today, and we will 04 come back tomorrow morning and start Phase IV. 05 MR. ETHERIDGE: Appreciate that very much. 06 C.O. CAFFREY: Is that agreeable to everybody? At 07 least you can manage your time a little bit better. 08 MR. ETHERIDGE: My witnesses appreciate it as well. 09 Thank you, Mr. Caffrey. 10 C.O. CAFFREY: Let's take our twelve-minute break. 11 (Break taken.) 12 C.O. CAFFREY: We are back on the record. 13 Before we go to cross-examination, if there is any, I 14 want to make an announcement that Mr. Stubchaer and I spent 15 some time with staff last night and discussed the question 16 of whether or not the Board should go forward with a Phase 17 II-A. We have made a determination, and that determination 18 is that the Board will, I repeat, the Board will go forward 19 with a Phase II-A. In the next several days our staff will 20 be putting out a hearing notice pertaining to that phase. 21 So I just want to make that announcement, and we will now 22 proceed with the hearing. 23 Mr. Etheridge. 24 MR. ETHERIDGE: Mr. Caffrey, if I may, regarding Phase 25 IV. At the break I spoke with counsel for the various 2213 01 counsel in Phase IV. We were discussing the order of 02 presentation of the four agreements in that phase. We 03 agreed -- Mr. Lily represents the Cache Creek group. He has 04 a witness who is available tomorrow, but not, I believe, the 05 following hearing week. Has only one witness, and that 06 person will take 20 minutes. He thinks it's the whole 07 direct and cross take an hour, approximately. Then East Bay 08 MUD will follow. 09 That is agreeable to us. We also have a witness who is 10 only available tomorrow, but we will put him on tomorrow 11 morning, our whole case in chief. Following that would be 12 Putah Creek and North Delta Water Agency, probably August 13 18th, 19th, 20th, during that hearing week. I just wanted 14 to pass that along. That is what the counsel had discussed. 15 C.O. CAFFREY: I appreciate that. I don't know if we 16 are wetted to any particular order. If you want to present 17 your cases in chief in any particular order and there is no 18 objection from any of the other parties who might be 19 cross-examining and not presenting cases in chief, I 20 certainly have no objection. 21 Is there any, on the part of the audience, does anybody 22 have a problem with what Mr. Etheridge described? 23 MR. GALLERY: Mr. Chairman. 24 C.O. CAFFREY: Yes, Mr. Gallery. 25 MR. GALLERY: That sounds fine with me. Woodridge 2214 01 Irrigation District did want to put on some -- a case in 02 Phase IV with respect to East Bay MUD's presentation, and we 03 would logically follow East Bay MUD. I hadn't planned on 04 being ready to do that tomorrow. So I am going to assume 05 that East Bay MUD will not be out of the door before 06 tomorrow afternoon, because I wouldn't be able to have my 07 people here tomorrow afternoon. I don't know if that is a 08 safe assumption, but that is what I am going to assume. 09 C.O. CAFFREY: All witnesses in these proceedings are 10 recallable until the hearing record is closed. We are 11 trying to accommodate everybody that we can, but if you need 12 a witness to return for some relevant questioning, we'll 13 probably have to have that person back. 14 MR. GALLERY: Thank you. 15 MR. ETHERIDGE: Thank you. 16 C.O. CAFFREY: When we start Phase IV, I'll ask you to 17 go through all this again on the record, Mr. Etheridge, with 18 you and your cohorts or companions or whatever you may wish 19 to describe them as. 20 MR. ETHERIDGE: That is fine. 21 C.O. CAFFREY: In the order of the proceeding. We will 22 go through it again when we start tomorrow or whatever time 23 tomorrow. 24 MR. ETHERIDGE: Thank you. 25 C.O. CAFFREY: By a showing of hands, may I ask which 2215 01 parties wish to cross-examine this panel of witnesses? 02 C.O. CAFFREY: We have Mr. Nomellini, Mr. Brandt. 03 Anyone else? 04 Nomellini and Brandt. 05 C.O. CAFFREY: Mr. Nomellini, do you wish to proceed? 06 ---oOo--- 07 CROSS-EXAMINATION OF 08 DEPARTMENT OF WATER RESOURCES, DEPARTMENT OF FISH AND GAME 09 AND RESOURCE CONSERVATION DISTRICT 10 BY CENTRAL DELTA WATER AGENCY 11 BY MR. NOMELLINI 12 MR. NOMELLINI: For the record, Dante John Nomellini, 13 Central Delta parties. 14 Mr. Chairman, I'm filler for the time space you have 15 here. I have just a very few questions. 16 C.O. CAFFREY: We think of you as much more than that, 17 Mr. Nomellini. 18 MR. NOMELLINI: In this case I'm purely filler. 19 My questions are of Mr. Wernette. And in your 20 presentation it appeared that the focus of the Department of 21 Fish and Game on this issue was primarily on the soil 22 salinity for the various areas within the Marsh. 23 My question to you is: Does the Department have any 24 concern for the incidental protection of fish and wildlife 25 in the channels of the Marsh that would not be protected by 2216 01 particular management practices related to soil salinity? 02 MR. WERNETTE: We do have a concern on the fish and 03 wildlife, about the fish and wildlife, in the channels as 04 well. But the primary thrust of our discussions and 05 presentation of our testimony was with respect to the 06 standards and their application to managed wetlands in the 07 Marsh. 08 MR. NOMELLINI: Would you agree that the 1995 Water 09 Quality Control Plan also includes a narrative for general 10 protection of the Marsh? 11 MR. WERNETTE: That's correct. 12 MR. NOMELLINI: That would include the channels as well 13 as the lands? 14 MR. WERNETTE: It would include the channels, 15 associated tidal wetlands and upland transition zones around 16 those tidal wetlands. 17 MR. NOMELLINI: In your opinion is there any incidental 18 benefit from the soil salinity parameters for the quality in 19 the various channels in the Marsh? 20 MR. WERNETTE: Well, there could be. I think there is, 21 as described by the Board in their own EIR, those salinity 22 standards may provide and achieve what the goal of the 23 narrative standards, the intent of the narrative standards. 24 I think it is premature at this point, though, to conclude 25 that completely because a lot of that is being discussed and 2217 01 a lot of dialogue in Suisun Ecological Work Group, about 02 what those species in the channels, say, listed fish and 03 tidal wetlands and their plant communities need. 04 So, I think it is premature to answer that and, 05 hopefully, through the SEW process the SEW will be making 06 recommendations to the Board on that very issue. 07 MR. NOMELLINI: Do you contemplate that this agreement 08 would not go forward until that process was completed? 09 MR. WERNETTE: It is my understanding that the timing 10 of the agreement and approval of the agreement itself is 11 going to be contingent upon the Endangered Species Act 12 consultation with the Fish and Wildlife Service. And the 13 Agreement, at that point once that is concluded, the 14 Agreement could be signed and the Agreement itself has 15 provisions that would allow for addressing whatever comes 16 out of the SEW process or of any future Board action 17 regarding standards in the Marsh. 18 MR. NOMELLINI: Is it your contemplation that this 19 Board would not take action on this phase of the hearing 20 until that formal consultation process was completed? 21 MR. CAMPBELL: Objection. Calls for a legal 22 conclusion on the part of the witness. 23 C.O. CAFFREY: I think that it does call for such a 24 conclusion. However, I will instruct the witness to answer 25 to the best of his ability. 2218 01 MR. WERNETTE: I really can't answer that question. 02 C.O. CAFFREY: That is the best of your ability. 03 MR. NOMELLINI: That is fair enough. 04 C.O. CAFFREY: There you go, Mr. Nomellini. 05 MR. NOMELLINI: With regard to the plan of action put 06 forth in the Agreement, as I understand it, portable pumps 07 with screens are going to go into the Marsh to allow for a 08 change in management practices on these various duck clubs 09 or Marsh properties; is that correct? 10 MR. WERNETTE: I don't know if you described it as a 11 change in management practice. It would allow them the 12 ability to better manage their lands, using similar 13 practices to what they are doing now, which is taking water 14 in under fresher conditions, leaching and draining. 15 MR. NOMELLINI: Is the current practice dependent on 16 floodgates to put water on the various Marsh parcels? 17 MR. WERNETTE: Yes, it is. 18 MR. NOMELLINI: Is it not true that your plan, as 19 incorporated in the Amendment Three, would replace, at least 20 in some cases, floodgate methods with a pump? 21 MR. WERNETTE: It would likely be a supplement to their 22 existing operations. So the pumps could be used, for 23 instance, under higher salinity conditions so they could 24 take water at low tide. And in a lot of cases it will be 25 supplement to their existing drain facilities. 2219 01 MR. NOMELLINI: Will the pumps, in terms of applying 02 water to the Marsh lands and using pumps with fish screens 03 in lieu or supplemental to floodgates, is there any concern 04 that you have with regard to the impact of that operation on 05 fishing and wildlife in the channels in the Marsh? 06 MR. WERNETTE: We did have a concern about that. We 07 addressed it in the environmental document that was alluded 08 to earlier that was sent out for public review. We 09 concluded that once we looked at that concern, that the 10 screens that would be installed on those pumps would be 11 sufficient to avoid any concern that we had regarding 12 fishery impact. 13 MR. NOMELLINI: Did you find that there was a mortality 14 associated with the screens in the operation of the pumps to 15 any fish species? 16 MR. WERNETTE: I, honestly, do not recall whether we 17 made any estimate of mortality. But, typically, screens 18 have an amount of mortality. The one conclusion we have 19 drawn is that certainly screened intakes, whether gravity 20 intakes or pumped intakes, is a tremendous improvement over 21 what the current condition is now, even though we have a 22 screened program being implemented in the Marsh, there are 23 still a number of diversions, particularly on the west side, 24 in the channels on the west side that are not screened. We 25 would anticipate a substantial reduction in mortality 2220 01 associated with use of those pumps over the current 02 condition. 03 MR. NOMELLINI: So that I understand you correctly, 04 you're saying that it is detrimental to fish and wildlife, 05 that they be transported into the Marsh areas from the 06 channels by way of the floodgates system? 07 MR. WERNETTE: We believe that for many species being 08 diverted onto managed wetlands doesn't improve their 09 survival. For a few species, some gobies, they probably 10 survive in the drainage and the circulation ditch systems. 11 But, for the most part, it's probably a one-way trip for the 12 fish that are diverted onto those managed wetlands. 13 MR. NOMELLINI: Was that the condition that existed 14 prior to the Suisun Marsh Management Plan, the original one 15 that took place with the Montezuma Slough gates in isolation 16 of the Marsh? 17 MR. WERNETTE: Could you ask that again? 18 MR. NOMELLINI: If we go back, like, to the early 19 1960's would you agree that the Marsh served as critical 20 habitat for fish life? 21 MR. WERNETTE: Yes. 22 MR. NOMELLINI: That included fish meandering through 23 these very areas that are now managed wetlands; is that 24 correct? 25 MR. WERNETTE: That is correct. 2221 01 MR. NOMELLINI: With the advent of the Suisun Marsh 02 Program, or whatever the proper name is, that was changed; 03 is that correct? 04 MR. WERNETTE: Well, the diversions onto those managed 05 wetlands, that action didn't change substantially from the 06 60's that you are describing to current conditions, the 07 action of taking water out of the sloughs into managed 08 wetlands. 09 What's changed is improvement in the size of the gates 10 and their efficiency and their ability to move water on or 11 off more rapidly, but the very act of diverting water off of 12 those -- into those managed wetlands hasn't change 13 appreciably in the last 30 years. 14 MR. NOMELLINI: Even under pre-Marsh project 15 conditions, so to speak, the habitat availability was 16 detrimental to these fish species because they were diverted 17 out of the channels through the floodgates onto these 18 managed Marshes? 19 MR. WERNETTE: I wouldn't agree with the conclusion 20 that the Marsh habitat was detrimental. Clearly, those 21 channels did provide suitable habitat. But there was the 22 stressor of being exposed to those diversions onto managed 23 wetlands. That hasn't changed much, as I said, over the 24 last 30 years. Irrespective of that, those channels still 25 provide important habitat to fishery resources in the Suisun 2222 01 Marsh. 02 MR. NOMELLINI: Let's go from the channel to the Marsh 03 habitat that now constitutes the managed wetlands. 04 Is your testimony that there has been no change with 05 regard to the detriment to fish species that are diverted 06 into those managed Marsh lands? 07 MR. WERNETTE: Because of implementation of the 08 screening program that the District and Fish and Game is 09 involved with, there has been a net improvement probably 10 with respect to entrainment of fish into those managed 11 wetlands. 12 MR. NOMELLINI: Last question: Do you know when the 13 next triennial review of the Water Quality Control Plan is 14 supposed to take place? 15 MR. WERNETTE: I do not. 16 MR. NOMELLINI: That is all I have. 17 C.O. CAFFREY: Thank you, Mr. Nomellini. 18 Mr. Brandt. 19 ---oOo--- 20 CROSS-EXAMINATION OF 21 DEPARTMENT OF WATER RESOURCES, DEPARTMENT OF FISH AND GAME 22 AND RESOURCE CONSERVATION DISTRICT 23 BY DEPARTMENT OF INTERIOR 24 BY MR. BRANDT 25 MR. BRANDT: Mr. Guivetchi, has the Department of Water 2223 01 Resources signed Amendment Three. 02 MR. GUIVETCHI: No. We have signed a letter of intent 03 to sign along with the others. 04 C.O. CAFFREY: Can you pull the mike over to Mr. 05 Guivetchi. 06 MR. GUIVETCHI: The Department of Water Resources has 07 signed a letter of intent to sign along with the other three 08 parties, but we have not signed the Agreement. 09 MR. BRANDT: Is that letter of intent in your statement 10 or been submitted to the Board at all? 11 MR. GUIVETCHI: It was part of the request for getting 12 an extension on S-97 and -35 which is part of the record, 13 part of that package submittal to the Board. 14 MR. BRANDT: You talked a lot about soil water 15 salinity. Is there an objective in the 1995 Water Quality 16 Control Plan for soil water salinity? 17 MR. GUIVETCHI: I believe the target in the plan is to 18 get spring soil salinity in the range of 4 to 14 parts per 19 thousand total dissolved solids. 20 MR. BRANDT: When you say it is a "target in the plan," 21 is it an objective? 22 MR. GUIVETCHI: The Water Quality Control Plan? 23 MR. BRANDT: Right. Is it an objective? 24 MR. GUIVETCHI: It is the purpose of the channel water 25 salinity objective. 2224 01 MR. BRANDT: So, the soil water salinity is just an 02 outcome of the channel water salinity, correct? 03 MR. GUIVETCHI: Maybe, maybe not. That depends on the 04 management practices, as we tried to show, but maybe saying 05 it in the converse. As the channel water salinities were 06 originally set in D-1485 and then later in the '95 plan, to 07 try to achieve soil salinity objectives. 08 MR. BRANDT: There is no objective for soil water 09 salinity, correct? 10 MR. GUIVETCHI: There is a target, but not an objective 11 in the table of objectives. 12 MR. BRANDT: You just said there may or may not be a 13 connection between channel water salinity and soil water 14 salinity; is that correct? 15 MR. GUIVETCHI: Let me clarify. To achieve the target 16 soil salinity isn't directly dependent or achieved by 17 achieving a certain channel water salinity. It's certainly 18 dependent because from the channel comes salt load which 19 gets applied to the soil. How that affects the soil water 20 concentration is a function of management and hydro periods, 21 the time that the soil is submerged. 22 MR. BRANDT: I would like to draw your attention to 23 Page 15 of the joint testimony. You state in there, first 24 paragraph under implementing Amendment Three, that: 25 There are no significant incremental impacts 2225 01 from the proposed actions; SRCD and DFG 02 comply with the terms and conditions of the 03 regional general permit and mitigation 04 requirements of 1981 Biological Opinion are 05 fulfilled. (Reading.) 06 How important were the complying with the mitigation 07 requirements of the 1981 Biological Opinion to your 08 conclusion that there were no significant incremental 09 impacts? 10 MR. GUIVETCHI: The base to compare to to decide 11 whether there were any incremental impacts was assuming that 12 the mitigation activities specified in the biological 13 opinions and our other permits were fulfilled. 14 MR. BRANDT: So, if you are not fulfilling those 15 requirements, then, there may be a significant incremental 16 impact? 17 MR. GUIVETCHI: If you assume that the mitigation that 18 was specified in the biological opinions and our other 19 permits are not done, then there would be. 20 MR. BRANDT: Let's talk a little bit about your 21 equivalence argument. As I listen to you and Mr. Wernette, 22 is there a difference between your equivalence conclusion 23 and his equivalence conclusion? 24 MR. GUIVETCHI: I am not sure what his conclusion -- 25 could you clarify how you would see the difference and I 2226 01 will tell you. 02 MR. BRANDT: Well, let's start with this. What is 03 Amendment Three equivalent to, in your conclusion? 04 MR. GUIVETCHI: The use of the term "equivalent or 05 better protection" in the context of Amendment Three, 06 essentially, was taken from the purpose and objective that 07 is in the Water Quality Control Plan. That is, we either 08 meet the channel water salinity at S-35 and S-97 or provide 09 equivalent or better protection at that location. The 10 reason that we stress the purpose of the Marsh salinity 11 objectives was to show that while channel water salinity 12 objectives were set, the purpose was to achieve certain soil 13 salinity. 14 Our test or criteria for providing ag equivalent or 15 better protection was to achieve those soil salinity 16 targets. 17 MR. BRANDT: You're making equivalence based, then, on 18 equivalence to implementing S-35 and S-97; is that correct? 19 MR. GUIVETCHI: That's correct. 20 MR. BRANDT: Do you make any conclusion of equivalence 21 as to the narrative standard for Suisun Marsh, for tidal 22 wetlands? 23 MR. GUIVETCHI: Not at all. I think it was stressed by 24 Ms. Crothers at the onset, and I will reiterate that, in the 25 context of Amendment Three we directed our attention to the 2227 01 Interior Marsh salinity objectives, and we noted, that we 02 recognized and understand, that the scope of Amendment Three 03 does not necessarily cover all of the requirements or 04 objectives of the State Board with regard to the Marsh. 05 So that nothing that was done directly in Amendment 06 Three was done to attempt to try to implement the narrative 07 standard for tidal marshes in Suisun. 08 MR. BRANDT: Can I ask your assistant to put on J. 09 I would like to ask you about Point Number 4, where it 10 says, "Broaden mitigation activities to mitigate, blah, 11 blah, for impacts listed in sensitive species." 12 Is there some suggestion there that you are broadening 13 the scope of species that you are trying to assist? 14 MR. GUIVETCHI: In a word, yes. The context of the 15 statement is that in the current companion mitigation 16 agreement to the Preservation Agreement there were three 17 phases of mitigation identified. One was to cover the 18 impacts of the initial facilities at salinity control gate 19 construction. 20 Two were to cover any additional large-scale facilities 21 that might be covered in other portions of the Marsh, which 22 aren't going to be done. 23 And three, which is installments, was to be what's 24 entitled, "The second half of mitigation for channel 25 islands." In the current mitigation agreement it was 2228 01 identified that that money would be used to develop 02 waterfowl habitat in the interior of Suisun Marsh. By 03 noting here that we are planning to amend the mitigation 04 agreement and broaden mitigation activities was in that 05 context that we are not going to use the $3,000,000 strictly 06 for waterfowl habitat. We recognize that there is benefits 07 to be had by broadening the mitigation activities and to 08 focus it on multi-species management, tidal marsh 09 restoration and maybe studies that might assist in 10 monitoring that activity. 11 MR. BRANDT: Can you tell me all the things that are 12 part of Amendment Three that are for the list in sensitive 13 species other than waterfowl? 14 MR. GUIVETCHI: Could you clarify by "all the other 15 things"? 16 MR. BRANDT: All the mitigation activities, when you 17 say broaden mitigation activities, can you tell me what are 18 all the mitigation activities that you are proposing as part 19 of Amendment Three that deal or assist in sensitive species 20 other than waterfowl? 21 MR. GUIVETCHI: In the Draft EAIS our current 22 determination is that there were no additional incremental 23 impacts over existing mitigation required by our permits and 24 biological opinions. So, there is no new mitigation 25 specified in Amendment Three for the specific new actions 2229 01 and provisions of Amendment Three. 02 What we did do was we adjusted or rescoped the already 03 existing requirements for mitigation of the original 04 agreement to broaden it, not only for waterfowl, but for 05 multi-species. 06 MR. BRANDT: Is there anything else that you are doing 07 for nonwaterfowl species? 08 MR. GUIVETCHI: What we have done is we've established 09 what we call an Environmental Coordination and Advisory 10 Team, or ECAT. This team was set up to ensure that all the 11 mitigation activities required by our existing permits and 12 biological opinions and any future requirements would be 13 fulfilled. 14 This team has representatives from the four SMPA 15 parties, and we have also invited representatives from the 16 U.S. Fish and Wildlife Service and the National Marine 17 Fishery Service to assist us in identifying how best to 18 implement and achieve our mitigation requirement. So that 19 is, explicitly speaking, a new provision in the Agreement 20 that goes to making sure that we protect listed and 21 endangered species. 22 MR. BRANDT: There is nothing else, other than what you 23 just identified? 24 MR. GUIVETCHI: That is correct. 25 MR. BRANDT: Mr. Chappell. Can we go on to his water 2230 01 manager overhead. 02 I would like to draw your attention to Point 3 where 03 you talk about protection of beneficial uses is maximized. 04 What are the beneficial use, protection of beneficial uses, 05 which beneficial uses are you trying to maximize there? 06 MR. CHAPPELL: There are beneficial uses in the managed 07 wetlands. 08 MR. BRANDT: Which are what? 09 MR. CHAPPELL: The wildlife resources associated with 10 the managed wetlands. 11 MR. BRANDT: Is that just waterfowl? 12 MR. CHAPPELL: No. 13 MR. BRANDT: What other uses are there besides 14 waterfowl? 15 MR. CHAPPELL: The Suisun Marsh has been identified as 16 that it has multiple wildlife resources, including 17 shorebirds, resident and migratory waterbirds and resident 18 and migratory mammals. 19 MR. BRANDT: Which mammals? 20 MR. CHAPPELL: Salt marsh harvest mice, tule elk, 21 river otter. 22 MR. BRANDT: So is this water manager going to be 23 dealing with how to protect the salt marsh harvest mouse? 24 MR. CHAPPELL: In the section I presented about the 25 updated management plans it identifies activities through 2231 01 management that would assist in protecting endangered 02 species habitat as well as managing for waterfowl. 03 MR. BRANDT: Is this water manager going to have a 04 biological background or is he a water resource manager? 05 MR. CHAPPELL: At this time it hasn't been identified 06 through -- because Amendment Three has not gone through 07 exactly what the role of that person would be. It's a new 08 program which we intend to develop and implement, but I 09 assume they would have a biological background. 10 MR. BRANDT: Let's move to management plans, the 11 management plans overhead. 12 Drawing your attention to the last bullet point, where 13 it talks about trying to promote adversity among waterfowl 14 food plants. 15 Are you -- are the management plans going to be focused 16 -- are they going to consider how to implement activities to 17 assist food sources for species other than waterfowl? 18 MR. CHAPPELL: Yes. The past plans were specifically 19 designed for waterfowl food crop production. With the new 20 management plans incorporating endangered species 21 restrictions, as well as regulatory restrictions on 22 management and maintenance activities in the Marsh, the 23 Suisun Resource Conservation District currently holds the 24 general maintenance permit for activities in the Marsh, of 25 management and maintenance. And with the new permit there 2232 01 are restrictions that were not outlined in the past 02 management plans that would be -- that would also assist in 03 managing for wildlife habitat, not just specifically 04 waterfowl. 05 MR. BRANDT: So, are you just responding, then, to 06 restrictions or are you actually trying to promote habitat 07 for other species other than waterfowl? 08 MR. CHAPPELL: Trying to promote wildlife habitat in 09 the Marsh in general. 10 MR. BRANDT: Let's go on to joint-use facilities. 11 Do you recall testifying about trying to promote more 12 diverse vegetation in relation to the joint-use facility? 13 MR. CHAPPELL: No. It possibly could have been in the 14 update of the existing management plan. This the is only 15 thing I spoke to for the joint-use facilities, this 16 overhead. 17 MR. BRANDT: Is there anything else, then, for 18 vegetation, for more diverse vegetation -- strike that. 19 You talked, I believe, about more diverse vegetation in 20 the context of more diverse vegetation for waterfowl; is 21 that correct? 22 MR. CHAPPELL: Most of the properties in the Marsh are 23 managed for as waterfowl hunting clubs. So, waterfowl 24 interests are a dominant role of the management that 25 occurs. But there are other beneficiary activities that 2233 01 occur for resident and migratory wildlife. And we would 02 also be trying to assist and enhance those as well. 03 MR. BRANDT: Let's move on to Mr. Wernette. 04 Mr. Wernette, I think it has been mentioned that you 05 have worked in the Marsh for 18 years? 06 MR. WERNETTE: That's correct. 07 MR. BRANDT: Have you been involved in working with 08 endangered species other than waterfowl in the Marsh? 09 MR. WERNETTE: Yes, I have. 10 MR. BRANDT: Can you describe for us what activities 11 those were. Let me give you a time period so it is a little 12 more specific. Say before 1990. 13 MR. WERNETTE: In 1980 I had the primary responsibility 14 for coordinating or negotiating the biological opinion that 15 ultimately came from the Fish and Wildlife Service dated 16 1981. Later on we were -- I was involved with working with 17 DFG wildlife managers in the Marsh to identify about a 18 thousand acres of Fish and Game lands to be dedicated to 19 management for salt marsh harvest mouse. And that was in 20 the mid-80's, and we developed a plan of setting those areas 21 aside and a plan for monitoring and entrapping to ensure 22 that those areas were being managed in that capacity. 23 I think the last thing I will conclude with is that in 24 the mitigation agreement, which is contained in the 25 agreement to the Suisun Marsh Preservation Agreement, we had 2234 01 a recognition in that that we needed to address impacts of 02 the implementation of the plan of protection on wildlife in 03 general; and a component of that was impacts on endangered 04 species, primarily salt marsh harvest mouse. 05 We negotiated that agreement and have been involved 06 since '88 in the acquisition of a piece of land, developing 07 a plan for restoring it and actually implemented that plan 08 after your target date of 1990, but basically the planning 09 of foundation for achieving that piece of property and 10 getting that area set up for the mouse. 11 MR. BRANDT: Does Fish and Game have any employees that 12 are focused on endangered species other than waterfowl that 13 are residents, actually working on the Marsh on a regular 14 basis? 15 MR. WERNETTE: I think -- the Department does have 16 specialists working on endangered species. Many of those 17 are located in the regional offices or in headquarters. So, 18 the people that are working on wildlife areas are not 19 specialists in endanger species, but they are targeted with 20 or charged with managing fish and wildlife, for all fish and 21 wildlife resources on those wildlife areas on the Marsh. 22 MR. BRANDT: Are the wildlife areas primarily for 23 waterfowl, managed primarily for waterfowl? 24 MR. WERNETTE: I think I probably addressed that 25 question. I think it is important to admit that they were 2235 01 principally set up initially from the standpoint of managed 02 waterfowl habitat. In some cases they were managed and set 03 up and purchased specifically to address crop depredation 04 issues. So that when they went to the Legislature to get 05 approval for the funding and so one, one of the major 06 classifications was to try to get waterfowl away from 07 croplands and onto some of these dedicated wildlife areas. 08 I think that the Department's overall charge to protect 09 fish and wildlife resources, not just waterfowl, has 10 resulted in us expanding and broadening our role in how we 11 manage those lands. 12 MR. BRANDT: How many wildlife area employees are 13 actually resident and regularly working in the Suisun Marsh? 14 MR. WERNETTE: I would have to guess. I do not know 15 the answer to that question specifically. 16 MR. BRANDT: How many endangered species specialists 17 that you talked about work regularly as their regular base 18 of employment is in the Marsh? 19 MR. WERNETTE: I mentioned that we don't have any that 20 their regularly bases of work is in the Suisun Marsh. 21 MR. BRANDT: Did you have a purpose and objectives 22 slide? Could you put that up, please. 23 Looking at your purpose/bases and Marsh objectives, I 24 think it is identified as C in your overhead, I notice here 25 it talks about soil water salinities. Is there anything on 2236 01 here, on this overhead, that deals with species other than 02 deals with helping or promoting species other than 03 waterfowl? 04 MR. WERNETTE: No. I think that it is fair to say that 05 these objectives originally established were primarily 06 focused on managing winter and waterfowl habitat. 07 MR. BRANDT: Are you aware of the regional wetlands 08 goal process? 09 MR. WERNETTE: Yes, I am. 10 MR. BRANDT: Are you involved in that process? 11 MR. WERNETTE: Yes, I am. 12 MR. BRANDT: Have they set any targets or goals for 13 tidal wetlands in the Suisun Marsh? 14 MR. WERNETTE: Yes, they have. 15 MR. BRANDT: Can you give us a comparison of the amount 16 that they have set -- first of all -- Strike that. 17 Tell us what is the regional wetland goal process? 18 MR. WERNETTE: It's a process that is really under the 19 wing of the EPA's estuary program, and it was an outgrowth 20 of the comprehensive regional wetlands management plan that 21 was -- I guess CCMP that was developed in a partnership with 22 stakeholders in the local area, state and federal government 23 resources agency, and was one of the things that was 24 targeted in the CCMP for one of next steps in protecting and 25 improving wildlife resources or in blank communities of 2237 01 fisheries resources in the Bay. 02 Through the Regional Board primarily and EPA staff, 03 there have been a group of scientists, stakeholders, 04 academics, agency scientists that have been working on it 05 over the last three years or so, to come up with a 06 science-based recommendation for, basically, where we need, 07 what type of habitat and why throughout the Bay Area. 08 MR. BRANDT: Can you tell me what that process -- what 09 goals that process has set for tidal wetlands in Suisun 10 Marsh? 11 MR. WERNETTE: I don't recall the exact numbers. There 12 was -- the way that the goals report came out was it is a 13 draft report. Obviously, you are seeking public input from 14 everyone. They presented three visions of what that might 15 be for the Marsh. I would have to go just from memory in 16 terms of what we are talking about. 17 One of the more aggressive visions for restoration of 18 tidal wetlands probably converted something on the order of 19 20,000 acres or 15 to 20,000 acres of managed wetland to 20 tidal wetland in the Suisun Marsh. 21 MR. BRANDT: Can you compare that with what the tidal 22 wetland's goals or tidal wetland's aims of Amendment Three 23 is? 24 MR. WERNETTE: We don't have at this point an aim in 25 Amendment Three. You talked to Kamyar quite a bit about 2238 01 what was in that expanded mitigation fund. And we've about 02 $3,000,000 in that fund, and it doesn't -- it's amazing how 03 that doesn't go as far as you might think it does in terms 04 of compensating landowners and doing the planning and actual 05 restoration. 06 We would like to be able to, at a minimum, restore 1500 07 acres within the next couple of years, from time of 08 planning, permitting and implementation. And I think we 09 want to go beyond that if we can, and if we can leverage 10 other funding sources we would like to go beyond that, 11 toward the goal that is in either CalFed or in the wetland's 12 goal process. 13 MR. BRANDT: And the wetland's goal process, I'm sorry, 14 refresh my recollection, is what number were they looking 15 for? 16 MR. WERNETTE: In terms of additional tidal? 17 MR. BRANDT: Yes. 18 MR. WERNETTE: About 15 to 20. 19 MR. BRANDT: Fifteen to 20? 20 MR. WERNETTE: Additional -- 21 MR. BRANDT: Fifteen to 20 acres? 22 MR. WERNETTE: Fifteen to 20,000 acres of tidal 23 wetlands that is not currently out there now. 24 MR. BRANDT: You are talking about 1500 acres in what 25 you are aiming for here? 2239 01 MR. WERNETTE: We think that is about all we are likely 02 to be able to do with the 3,000,000 that we have available 03 to us now. That doesn't mean we are going to stop there. 04 We are working collaboratively with Service and with other 05 land management, seems like the Solano County Open Space 06 Foundation, to look at the other opportunities for 07 restoring wetlands. And we are trying to also seek 08 additional funding sources to make it -- to achieve a 09 broader goal than 1500. 10 MR. BRANDT: You made comments about the consistency of 11 Amendment Three with CalFed's ERPP. Do you recall those 12 comments? 13 MR. WERNETTE: Yes, I do. 14 MR. BRANDT: Can you tell me, particularly related to 15 tidal wetlands, how you understand that they are -- what 16 Amendment Three is doing and what CalFed's goals or aims 17 are, how those two are consistent. 18 MR. WERNETTE: In the ecosystem restoration program 19 plan they have an initial target of restoring between 7 and 20 9,000 acres of tidal wetlands into the Suisun Marsh to 21 achieve the needs that CalFed has. To the extent that we 22 can contribute to that through the restoration of 1500 or 23 2,000 acres, we believe we are actually -- we are not 24 getting in the way of that; we are actually helping to 25 achieve some of the targets that they have described. 2240 01 MR BRANDT: So, when you say "consistent," you mean it 02 just is going in the direction but it is not the same or not 03 similar or equivalent to CalFed; is that accurate? 04 MR. WERNETTE: I don't think it is fair to say that we 05 are equivalent to CalFed. You know, CalFed has what -- you 06 spoke in your comments on tidal restoration. And, of 07 course, they have goals for seasonal, as well. 08 MR. BRANDT: I focused here on one, on wetlands. You 09 go part of the way, basically, under Amendment Three. Is 10 that what your testimony is? 11 MR. WERNETTE: That's correct. 12 MR. BRANDT: How do you go part of the way? I think 13 you identified money, the $3,000,000 that you identified, is 14 that one of the ways you go part of the way on tidal 15 wetlands? 16 MR. WERNETTE: Right. And money and actually 17 participating in the acquisition and development, 18 permitting, all aspects of it, too. Not just put it on 19 paper, but actually make sure that it actually gets 20 implemented. 21 MR. BRANDT: What else is there besides those actions 22 that are consistent with tidal wetlands area? 23 MR. WERNETTE: In regards to the 3,000,000 that you are 24 talking about? 25 MR. BRANDT: Anything. Besides the 3,000,000, what 2241 01 else is there? 02 MR. WERNETTE: On tidals? 03 MR. BRANDT: Yes. 04 MR. WERNETTE: Relative to Amendment Three, I think 05 that that captures what we are doing for tidal wetlands in 06 Amendment Three. 07 MR. BRANDT: Is this 3,000,000 just for tidal wetlands 08 or is it for tidal wetlands and everything else? 09 MR. WERNETTE: I think we have had -- a couple of folks 10 have described how it evolved from being where we were back 11 in the early '80s, which was the more managed wetlands the 12 better, the better it is for waterfowl or for at least 13 wintering wildlife. 14 We believe we are going to end up working through 15 either the Ecosystem Coordination Advisory Team or directly 16 with the Fish and Wildlife Service in terms of how much of 17 that is going to be targeted strictly to tidal wetlands. My 18 guess is that since there is such a strong drive toward that 19 end, the bulk of it will go to restoration of those 20 wetlands. And there likely will be some evaluations that 21 will go along with it. So, it's not just going to be, 22 "Let's just build it and walk away from it." 23 Opportunities even evaluate whether some of the rare 24 plants that are out there could be restored in some of these 25 newly restored tidal wetlands areas. So, we see it as an 2242 01 opportunity not just to do acres, but also to learn from it 02 as a pilot project. 03 MR. BRANDT: You also discussed an east-west salinity 04 gradient. Do you recall that testimony? 05 MR. WERNETTE: Yes, I do. 06 MR. BRANDT: Did you also discuss a north-south 07 salinity gradient? 08 MR. WERNETTE: I did mention that there is that 09 gradient as well. 10 MR. BRANDT: How does that work? How is there a 11 north-south gradient? 12 MR. WERNETTE: Typically, the map moved behind the 13 screen, the inflow from the surrounding watershed to the 14 Suisun Marsh in most years tends to freshen the northern 15 side of the Marsh, you know, all across the northern end of 16 the Marsh. As you move closer to the Suisun Bay, the close 17 proximity to the Bay, and the large tidal prism in the Bay 18 results in that tending to be much more saline in the layer, 19 say, up next to Suisun City or the City of Fairfield. 20 MR. BRANDT: Is that true even with the levees that are in 21 place around the Suisun Marsh? 22 MR. WERNETTE: I think that it is true. 23 MR. BRANDT: Let's talk about the east-west salinity 24 gradient. Is that -- is the gradient that you described, is 25 it equivalent to the natural east-west gradient that there 2243 01 would be in the Suisun Marsh? 02 MR. WERNETTE: It's hard for us to -- there is a lot of 03 dialogue about what was the natural salinity gradient, 04 specifically, 250 years ago. What I think we can probably 05 feel pretty good about is that there was a general east to 06 west gradient in salinity, and that the way that the Board 07 has crafted its standards in the '95 plan allows for, in 08 particularly drier periods, a substantial difference between 09 what east side has in terms of salinity and the west side. 10 We think that that, at least the pattern, is consistent 11 with historical conditions or prehistorical conditions. But 12 I could go beyond that because there is a lot of uncertainty 13 about what that past really -- what really happened 200, 300 14 years ago. 15 MR. BRANDT: When you say "the pattern is similar," is 16 the variability similar between this theoretical and 17 historical condition that you talked about, or the 18 historical condition, and what the east-west gradient that 19 occurs as part of Amendment Three? 20 MR. WERNETTE: I didn't testify in regards to the 21 variability and how it related to historical or 22 prehistorical conditions. 23 MR. BRANDT: So, you have no idea of what the 24 variability, what that comparison would be as far as 25 variability between historic and Amendment Three? 2244 01 MR. WERNETTE: I think just in my participation through 02 the SEW process, I know there has been a lot of debate in 03 terms of how variable salinities were compared to the way 04 things are now with the diking of the estuary and changed 05 water project operations; that leads to one potential 06 conclusion about the way it was prehistorically. 07 There is other data that the SEW is evaluating, too, to 08 give us -- hopefully, we will be able to learn something 09 from that in terms of how much variability there was under 10 certain outflow conditions. 11 MR. BRANDT: This is really -- it is not the natural 12 gradient that you were talking about; it is a managed 13 gradient. That is accurate, right? 14 MR. WERNETTE: In the case of the last four years, the 15 only management that has occurred in this gradient has been 16 operations of state and federal water projects, principally, 17 in terms of reservoir releases, exports. For most of the 18 time during the time period we are talking about, most of 19 it, that was the hydrology that we were given. 20 MR. BRANDT: But under Amendment Three going forward, 21 it would be a managed gradient, not natural gradient? 22 MR. WERNETTE: It wouldn't change with Amendment 23 Three. Only in the drier conditions where outflows are very 24 low and the standards would need to be achieved, would it 25 then, quote-unquote, be a managed gradient. 2245 01 MR. BRANDT: Then I just have a question on your 02 equivalent analysis. You identified four reasons why it is 03 equivalent. Let me just ask you: Can you tell me what 04 Amendment Three is equivalent to, in your mind. 05 MR. WERNETTE: The focus of our testimony was looking 06 at that portion of the Marsh that would be addressed by the 07 two Western Marsh stations, S-35 and S-97. So that's the 08 benchmark that we are looking at. When we made a 09 determination about equivalency or better, then we were 10 looking at the objectives that we are talking about here in 11 terms of managed wetlands and whether that objective could 12 be achieved or even a little better with actions for that 13 particular portion of the Marsh. 14 MR. BRANDT: On Page 4 of your written testimony you 15 state that: 16 For the following reasons, in my opinion, 17 Amendment Three will provide environmental 18 protection equivalent to or better than 1995 19 Bay-Delta Plan. (Reading.) 20 Is that your testimony? 21 MR. WERNETTE: Yes. 22 MR. BRANDT: How is it equivalent or better than the 23 narrative standard for tidal wetlands? 24 MR. WERNETTE: Our intent was not to necessarily draw 25 any conclusions about its equivalency or better with respect 2246 01 to the narrative standard. 02 MR. BRANDT: But you say for the 1995 Bay-Delta Plan. 03 Doesn't the 1995 Bay-Delta Plan include a narrative standard 04 for tidal wetlands? 05 MR. WERNETTE: It does. 06 MR. BRANDT: But you are not saying it is equivalent 07 for that particular standard? 08 MR. WERNETTE: I think at this point it is premature to 09 say. 10 MR. BRANDT: Thank you. 11 C.O. CAFFREY: Thank you, Mr. Brandt. 12 Do the staff have any questions of this panel of 13 witnesses for cross-examination? 14 Mr. Howard. 15 ---oOo--- 16 CROSS-EXAMINATION OF 17 DEPARTMENT OF WATER RESOURCES, DEPARTMENT OF FISH AND GAME 18 AND RESOURCE CONSERVATION DISTRICT 19 BY STAFF 20 MR. HOWARD: Mr. Guivetchi, in your testimony you 21 had pointed out, taken a table out of the Draft EIR that was 22 prepared by State Water Board staff and pointed out that in 23 stations S-21 and S-42 that some of the objectives would be 24 exceeded on rare occasions. 25 The question I had is: Does the Department have any 2247 01 recommendation regarding some of the objective criteria that 02 could be applied in a proposed relaxation for the objectives 03 that are in the Water Quality Control Plan? 04 MR. GUIVETCHI: Short answer is yes. In fact, not just 05 the Department but the four parties of SMPA did deal with 06 this issue. And it primarily came about because in making 07 our standards in the SMPA consistent with the State Board 08 standards, we essentially agreed in comparison to the 09 original agreement to do away with deficiency standards or 10 those dry period standards at the eastern sites. And we 11 then knew from our modeling and from historic data there 12 were these very dry periods, like February of 1991, when 13 even with full bore operation of the salinity control gates, 14 operation of the initial facilities, and even assuming all 15 of the other outflows requirement and salinity requirements 16 of Bay-Delta Plan were being met, we did not meet these 17 standards. That is why those exceedances occurred. 18 As a part of Article 3 to the draft Preservation 19 Agreement, essentially almost as a footnote to Table 1, 20 which is the Board's standard for the Eastern Marsh 21 stations, S-42 and S-21, we have outlined three provisions 22 or objective criteria on how we might deal with that if an 23 exceedance might occur in the future. And, basically, it 24 doesn't cover -- it actually covers the Eastern Marsh. 25 What is noted in the Draft EIR is, as the Board noted, 2248 01 that with exceptions during dry periods those standards 02 weren't always met. So, in the agreement we really focused 03 on the Eastern Marsh stations, C-2, S-64 and S-49; and we 04 basically said that during deficiency periods, which we 05 think that is when this is going to be an issue, the dry 06 drought periods, we would do everything we can to meet the 07 standards at Table 1. 08 However, if there was an exceedance, if the exceedance 09 was in one or two months of the control season, in any one 10 control season, the parties agreed that they would waive the 11 standards for those one or two months. The reason we agreed 12 to that is that we understand that the standards of the 13 Marsh were set up to go from October through May to achieve 14 certain soil salinities in the springtime for plant seed 15 germination, and we felt that if one or two exceedances of 16 the minor degree that we anticipate would happen did occur, 17 it would not take away from achieving the original 18 objectives of those standards. 19 We go on to say that if, however, the exceedances occur 20 more than two months in a controlled season, then that would 21 actually trigger the drought response fund, and those 22 additional moneys for that year plus the subsequent year 23 would be allocated to the areas where the exceedances did 24 occur to allow them to more intensively manage, to get any 25 additional salts that may have accumulated in their soil 2249 01 column out of the soil. 02 Then, finally, we go so far in saying if our modeling 03 and our understanding of the way the system works is really 04 in error and that, if in two consecutive control seasons 05 that are in deficiencies, we get greater than four months of 06 exceedance or 25 percent, then we would say we need to get 07 back to the negotiation table and relook at this because our 08 modeling or understanding of the system is not complete. 09 MR. HOWARD: That wasn't exactly the question I had, 10 unfortunately. The question I had was: Had you looked to 11 see whether we could apply some objective criteria for when 12 the waiver should be established? For example, based on the 13 Sacramento 60-20-20 year index or the four river index; that 14 is, is there some trigger at which we see these exceedances 15 actually happening because flows reach a particular level 16 that triggers the exceedances? 17 MR. GUIVETCHI: I guess the short answer to your 18 original question was we haven't come up with those 19 objective criteria. However, I will note that the river 20 index of the Sacramento River does not take into 21 consideration antecedant conditions. And what we see in 22 the Marsh is that you could be in dry, critical year, but if 23 the preceding season was wet or above normal, the salinity 24 that you would see at a station would be far different, 25 given the same Delta outflow patterns. So, you can't really 2250 01 trigger it on that. We would have to develop a more 02 sophisticated index or criteria that would also look at 03 immediate antecedent conditions. 04 MR. HOWARD: Thanks. 05 Another question I had is, we are asking, requesting 06 the SMPAs that S-35 and S-97 be removed as water quality 07 objectives and be used as compliance monitoring stations. I 08 am curious if there is, again, any objective criteria that 09 could be used to replace those that might achieve the 10 objectives in the SMPA? For example, would it be 11 appropriate or possible to have water soil column as TDS as 12 an objective that could be applied instead of the water, the 13 objective in the channel? 14 MR. GUIVETCHI: You could. However, I qualify that, 15 again, what we have seen in the salinity that you get in the 16 soil would then be highly dependent on how an individual 17 owner managed their water on and off and managed their plan, 18 which would be very hard for any of the agencies here to 19 actually dictate. 20 The other thing that we see is that soil types in the 21 Marsh vary, and even on one managed wetland, depending on 22 where you put the soil to monitor a site, you can get quite 23 a variation of soil salinity. So, it would be somewhat 24 problematic on where to put the soil tube sites to have a 25 representative site that you could compare to an 2251 01 objective. It is quite a complicated relationship. 02 MR. HOWARD: Is there a lot of variability as well in 03 nearby areas, not just based on management by just 04 variability within the sampling on the various sites in the 05 soil water? 06 MR. GUIVETCHI: Right. What we have observed in the 07 ten years of soil monitoring that we did on the same club or 08 same managed wetland we would have more than one soil 09 monitoring tube at various locations, and the soil 10 salinities within that same club could differ quite 11 dramatically, depending on the soil type, depending on how 12 close it was to the drainage ditch pattern, to the outfall 13 structure, et cetera, et cetera. 14 MR. HOWARD: On Page 80 of your testimony, DWR 29, you 15 talked about, again, converting S-35 and S-97 from 16 compliance stations to monitoring stations, and there is a 17 commitment that the Department and the Bureau will operate 18 existing facilities to the extent feasible to achieve 19 similar water salinity at these stations. 20 Does the operation of the Suisun Marsh salinity control 21 gate have any significant affect on salinity at S-97, and 22 would you use salinity at S-97 to trigger Suisun Marsh 23 salinity control gate operation? 24 MR. GUIVETCHI: No. We would not. And it is further 25 clarified in DWR 30, Appendix A, which is the Agreement 2252 01 itself. In Table 2, which is entitled "Suisun Marsh 02 Monitoring Stations," S-35 and 97 are identified as being 03 stations that trigger certain activities. And this is on 04 Page 13 of the Agreement, and it is indicated that S-35 05 would be used to trigger gate operations and drought 06 response fund, but S-97 would only be used to trigger the 07 response fund. 08 MR. HOWARD: On Page 12 of DWR Exhibit 29 you talk 09 about the fact that Morrow Island drainage water 10 consolidation and redirection has been eliminated from the 11 Suisun Marsh Preservation Agreement as one of the control 12 actions. You say that: 13 Further analysis of modeling conducted during 14 informal consultation indicates that this 15 action not achieve the objective of lowering 16 channel water salinity. (Reading.) 17 It seems counterintuitive to me that removing drainage 18 flows from the slough would not have any effect on salinity. 19 Was it that there was no effect or minor changes, or could 20 you give me some degree of the magnitude of effect of 21 improvements that could be possible by Morrow Island 22 drainage water consolidation and redirection? 23 MR. GUIVETCHI: During the informal consultation 24 process with both the U.S. Fish and Wildlife Service, they 25 expressed concern that if, in fact, this action did lower 2253 01 salinities in Goodyear slough, they saw that problematic 02 perhaps for California clapper rail. So, that motivated us 03 to do some additional modeling. 04 In our Suisun Marsh model, we actually have 05 representative diversions and drainages of the various 06 managed wetlands, including those in this area. 07 What we did in the with and without case, we actually 08 shut off the drainages from the Morrow Island clubs, or 09 actually redirected them from Goodyear Slough into Suisun 10 Bay. And after we ran the model, the salinities in, again 11 because the model shows mean channel cross-selectional area 12 salinities, there was imperceptible differences based on the 13 modeling. 14 However, that doesn't mean that there would be no 15 effect. I think the effect that you might see is if one 16 property's drain was very close to another property's 17 diversion, because of the immediacy, you could actually get 18 one club drawing in the drainage water of another property. 19 But in the mean channel level analysis, we did not see a 20 perceptible change. 21 So at that point we said, "Hey, this action isn't even 22 doing what we thought it would do." So, we dropped it from 23 the list of actions. 24 MR. HOWARD: We also had some testimony that we are 25 going -- moving forward with formal consultation with the 2254 01 U.S. Fish and Wildlife Service, and that is going to begin 02 soon and you hope to have that completed by early 1999, as I 03 understand. 04 Does the Department and the Department of Fish and 05 Game, for that matter, recommend that the Board defer any 06 decision on this matter until consultation is completed and 07 the Suisun Marsh Preservation Agreement is actually signed 08 by the parties? 09 MR. GUIVETCHI: What we have indicated is that the 10 parties will not be able to sign and actually implement the 11 actions in Amendment Three until we complete the formal 12 consultation process. Certainly, from DWR's point of view, 13 at this point we would be more than glad to have the Board 14 accept it as is. But understanding that the proper way 15 would be to complete the formal consultation process and 16 include any changes to the Agreement that may come out of 17 that process. 18 We are preparing a biological assessment as we speak. 19 We plan to have that biological assessment to the Fish and 20 Wildlife Service early in September. We have been through 21 the Bureau of Reclamation, have informed the Service of our 22 intent to initiate formal consultation and have spoken with 23 Service staff regarding this. And their estimation was that 24 if, in fact, we forwarded a biological assessment to them in 25 late August, early September, that by early 1999 we could 2255 01 have a biological opinion. And then out of that opinion we 02 would make any modifications needed to Amendment Three, and 03 then would present that again to the Board at the time that 04 we were able to sign and implement the actions. 05 I think it goes without saying if we don't sign the 06 agreement, we can't implement all the actions, and so the 07 concept of equivalent protection is not totally there. 08 MR. HOWARD: Mr. Wernette, I am referring to DFG 09 Exhibit 22. In it you have a comment on Page 7 that: 10 Based on best available scientific 11 information, CESA Biological Opinion, 12 implementation of Amendment Three would 13 result in the incidental take of individuals 14 of some listed species, such as salt marsh 15 harvest mouse and clapper rail. (Reading.) 16 You go on to say: 17 However, the adverse impacts should be 18 incidental. (Reading.) 19 But I was curious how this project, in your opinion, 20 would result in the incidental take of some individuals of 21 salt marsh harvest mouse and California clapper rail. 22 MR. WERNETTE: Well, first, in regards to the mouse, 23 some of the things that would be facilitated by the drought 24 response fund, for instance, additional ditching that might 25 be required. The potential is always there that when work 2256 01 is being done on the managed wetlands, that there is a risk 02 that the actual actions of doing those management actions 03 will take habitat or actually kill individuals of salt marsh 04 harvest mouse. That was recognized all along, including in 05 the regional maintenance permit that the District and Fish 06 and Game have to do similar types of work. 07 While we don't think that is going to be incremental, 08 above what's already been analyzed and approved through that 09 core permit process and covered in the biological opinions 10 by the Fish and Wildlife Service, the risk is still there, 11 that those actions can have that kind of impact. 12 MR. HOWARD: The only other question I had was DFG 13 Exhibit 24, and that is the Agreement itself. On Page 17 of 14 the Agreement, this relates to, I guess, the issue that Mr. 15 Minasian was concerned about. Number five in the Agreement. 16 It says: 17 The parties agree that the habitat on 18 managed wetlands would benefit from increased 19 flows into Green Valley Creek obtained from 20 construction of an intertie from the 21 Fairfield-Suisun Sewer District Wastewater 22 Treatment Plant. The intertie would provide 23 surplus treated effluent to Green Valley 24 Creek to lower channel salinity in the 25 northwest Marsh. This construction, however, 2257 01 is dependent on obtaining agreement with 02 Fairfield-Suisun -- with the district for the 03 use of the surplus treated effluent and 04 funding of construction. The parties 05 attempted such an agreement with the people 06 at the time of executing Amendment Three, but 07 were unsuccessful. The parties agree to 08 pursue such an agreement. (Reading.) 09 The question I have is: Could you describe in your 10 opinion what the problem is with providing flows from 11 Fairfield-Suisun Sewer District, why were the negotiations 12 unsuccessful. 13 MR. WERNETTE: I think I would have to defer that 14 question. I was not involved in the negotiations directly 15 with the district or the Solano County Irrigation District. 16 So I would probably not be qualified to respond to that. 17 MR. HOWARD: Mr. Guivetchi -- 18 MR. GUIVETCHI: I was involved in those discussions, so 19 I will attempt to reply. 20 In Attachment 1, or A, to the demonstration document is 21 a copy of the joint proposal that we gave the 22 Fairfield-Suisun Sewer District about providing funds to 23 construct an intertie, a physical facility between the sewer 24 district's water treatment plant and Green Valley Creek to 25 allow the transfer of that water. 2258 01 At the time we did that, we had reviewed some of the 02 general, long-term plans of the sewer district and the City 03 of Fairfield in regards to using reclaimed water, and this 04 intertie was actually in that plan. We thought that there 05 was coincident interest in having that done as soon as 06 possible. When we got into the discussions with the sewer 07 district, we learned two things. One is that a better part 08 of the water is currently under contract with the Solano 09 Irrigation District. They get first use of that water at 10 this time. And I believe that agreement goes through early 11 of the next century. 12 The other thing was that they reiterated that while 13 that was in their long-term plans, it was further on in 14 their reclamation and reuse proposal, and unless we could 15 provide more than the $600,000 that we had planned at this 16 time, they would need additional moneys to do the necessary 17 environmental documentation, plus the Solano Irrigation 18 District was interested in some kind of compensation plan. 19 The negotiators, especially, DWR and the Bureau were 20 not prepared to go much further at this time, and we 21 actually received, which is Attachment B to the 22 demonstration document, asking, actually the sewer district 23 to maybe give us a counterproposal. We received a letter 24 saying that at this time they saw too many obstacles to 25 proceed. They really weren't interested to proceed at this 2259 01 time. 02 What we did do in the Agreement, again, in the concept 03 of providing equivalent or better protection, understanding 04 that without that treated effluent as modeled in the Board's 05 Alternative 5 of the Draft EIR, certain areas of the 06 northwestern Marsh would be receiving higher diversion 07 salinity water. So, what we did was we modified the drought 08 response fund to include more moneys to cover greater 09 acreage of the effected area. And, also, we understand that 10 because there is a time, a salinity value trigger, that if, 11 in fact, that area does get saltier more often, it would be 12 triggering a drought response fund for the Western Marsh 13 more often. 14 We feel we have compensated for that. And if in the 15 future there is an opportunity, maybe, to look at this 16 treatment plan intertie, we would be open to it. But there 17 is no immediate or concrete plans at this time. 18 MR. HOWARD: Thank you. 19 C.O. CAFFREY: Any other questions from staff? 20 Questions from the Board Members? 21 Mr. Stubchaer. 22 ---oOo--- 23 // 24 // 25 // 2260 01 // 02 CROSS-EXAMINATION OF 03 DEPARTMENT OF WATER RESOURCES, DEPARTMENT OF FISH AND GAME 04 AND RESOURCE CONSERVATION DISTRICT 05 BY BOARD MEMBERS 06 C.O. STUBCHAER: Mr. Guivetchi, when the time allotted 07 for your direct testimony expired, you were about to put up 08 another overhead. Was that Exhibit Q that includes your 09 recommendations? 10 MR. GUIVETCHI: Yes, it was. 11 C.O. STUBCHAER: Mr. Wernette did put up that overhead 12 displayed. Was there anything on that overhead that you 13 wanted emphasized for the Board to consider? 14 MR. GUIVETCHI: Actually, I would. 15 Tony, if you would be kind enough to put up 16 transparency Q. 17 Thank you, Mr. Stubchaer. 18 C.O. CAFFREY: Interesting technique. 19 For the record, Mr. Stubchaer had the deference to 20 find out if I had any problem with this, and I don't. This 21 is perfectly appropriate. 22 MR. GUIVETCHI: Thank you. 23 I think Mr. Wernette did cover the recommendations 24 quite well. I would like to emphasize some of our 25 conclusions; and that is, we believe that in total the 2261 01 provisions of Amendment Three provide better use of channel 02 water than is currently existing in Suisun Marsh. And very 03 importantly, it does not require any additional Delta 04 outflow to meet the objectives that are in the Water Quality 05 Control Plan. We believe that it does go to the public 06 interest of improving wetlands with the reasonable use of 07 water. We had estimates in support of the 1978 Plan, and 08 later were proceedings that indicated as much as 2,000,000 09 acre-feet would be needed if we tried to meet all of the 10 salinity objectives with Delta outflow alone. 11 And having done our Draft Environmental Assessment 12 Initial Study, given that we are currently involved in 13 mitigation activities and actually crafted all of our 14 actions to fit within the existing regional maintenance 15 permit of the Suisun Marsh Resource Conservation District, 16 we don't think at this time there will be any further 17 incremental impact to fish and wildlife. 18 Those conclusions together, I think, really support our 19 recommendation to the Board that Amendment Three out of the 20 six alternatives that are in the Draft EIR would be the best 21 way at this time to proceed with implementing Western Marsh 22 effects. 23 C.O. STUBCHAER: Thank you. 24 C.O. CAFFREY: Thank you, Mr. Stubchaer. Let the 25 lesson here be that it is important to stay within your time 2262 01 limit, lest you can't find a Board Member who is interested 02 in hearing the rest of it. 03 Before we take a lunch break, let me -- before that I 04 do: 05 Other questions from the Board Members? 06 Before we take a lunch break, let me ask Ms. Crothers 07 and/or Mr. Campbell, did you plan to have any redirect 08 testimony? Do you know? 09 MR. CAMPBELL: I believe I have one question. 10 MS. CROTHERS: I have one or two questions, also. 11 C.O. CAFFREY: We will get to that when we get back 12 from lunch. It's just about 10 after 12. I guess we will 13 start at 1:15; makes sense. 1:15 back here; we will resume. 14 (Luncheon break taken.) 15 ---oOo--- 16 17 18 19 20 21 22 23 24 25 2263 01 AFTERNOON SESSION 02 ---oOo--- 03 C.O. CAFFREY: Good afternoon. We are back on the 04 record. 05 We were at that point where we are going to go to 06 redirect, and I believe, Mr. Campbell, you had some redirect 07 testimony you wanted to offer? 08 MR. CAMPBELL: Before lunch I had one question, and 09 after lunch I have three questions. 10 C.O. CAFFREY: Time to think. The danger of taking 11 breaks. Please proceed, sir. 12 ---oOo--- 13 REDIRECT-EXAMINATION OF 14 DEPARTMENT OF WATER RESOURCES, DEPARTMENT OF FISH AND GAME 15 AND RESOURCE CONSERVATION DISTRICT 16 BY MR. CAMPBELL 17 MR. CAMPBELL: Thank you. 18 Mr. Wernette, other than the actions provided by 19 Amendment Three to the Suisun Marsh Preservation Agreement, 20 are there other actions currently proposed or planned to 21 enhance tidal marsh within the Suisun Marsh to aid listed 22 species within that Marsh. 23 MR. WERNETTE: Yes, there are. Besides what could be 24 funded and provided for by the 3,000,000 in Amendment Three, 25 there are at least two other locations, and potentially 2264 01 three, where on top of that mitigation obligation we can 02 restore tidal wetlands. 03 One of them is a, I might have mentioned them briefly 04 during cross-examination, about a location on Rush Ranch 05 which is a preserve operated by the Solano County Open Space 06 Foundation, that those -- there are opportunities to work 07 collaboratively with them and with help from a Fish and 08 Wildlife Service plan ecologist to restore an area to tidal 09 actions. We coined it as being the Goat Island Tidal 10 Wetland Restoration Project. 11 Secondly, on state, Fish and Game, lands that we 12 currently operate that are in managed wetlands, we've 13 already submitted an application for a grant from CalFed to 14 start the initial planning and background information that 15 needs to be done to do that tidal wetlands restoration. 16 So, those are outside of the scope of Amendment Three. 17 The third example is a piece of land where the 18 landowner is the willing seller, and the land now is 19 currently heavily grazed by cattle and is in very poor 20 condition from the standpoint of wildlife habitat. We will 21 also take or pursue acquisition and restoration of that. 22 And all three of these happen to be in areas that have been 23 targeted as important tidal wetland restoration areas, not 24 only informally between us and Fish and Wildlife Service 25 biologists and our own botanists within the Department, but 2265 01 is also included in the wetlands goal process that Alf had 02 talked about earlier. 03 Those are all areas that are important and have been 04 targeted as areas where opportunities exist. 05 MR. CAMPBELL: Is the Department of Fish and Game 06 coordinating with the U.S. Fish and Wildlife Service 07 regarding those proposed acquisitions? 08 MR. WERNETTE: Yes, we are. We are in early stages of 09 some of that coordination. More needs to be done to insure 10 that we have the greatest chance of success once these areas 11 are restored and want them to function properly and actually 12 achieve the goals. 13 MR. CAMPBELL: Are you familiar with the Draft 14 Environmental Impact Report for this proceeding? 15 MR. WERNETTE: Yes, I am. 16 MR. CAMPBELL: Do any of the alternatives in the 17 Board's Draft EIR for implementation of the Suisun Marsh 18 water quality objectives, other than Alternative 5, which is 19 Amendment Three as modified, do any of the other 20 alternatives provide for an additional tidal marsh within 21 the Suisun Marsh? 22 MR. WERNETTE: No, they don't. 23 MR. CAMPBELL: Does the Department of Fish and Game 24 have employees with expertise in the Endangered Species Act? 25 MR. WERNETTE: Yes, they do. 2266 01 MR. CAMPBELL: Can you give me a general figure as to 02 how many that might be? 03 MR. WERNETTE: We have three different divisions where 04 those biologists and botanists and plant ecologists are 05 located. One in Inland Fisheries Division, dealing with the 06 aquatic resources, reptiles and amphibians. They're 07 probably eight to ten scientists in that group. 08 Wildlife Management Division, which covers all the 09 wildlife species that are addressed out in the Marsh, like 10 clapper rail, salt marsh harvest mice, their total, close to 11 eight or ten scientists there with three of those 12 specifically targeted toward some of the species found in 13 the Marsh. 14 And, last, in our Natural Heritage Division we have 15 botanists and plant ecologists in the endangered plant 16 program. All three of those together combined -- I never 17 totaled it all up, but I think we probably are talking about 18 at least 20 to 25 botanists, scientists that are involved in 19 the endangered species issues. 20 MR. CAMPBELL: Has the Department of Fish and Game 21 applied its Endangered Species Act expertise to Amendment 22 Three? 23 MR. WERNETTE: Yes, we have. 24 MR. CAMPBELL: Do the Department of Fish and Game 25 employees with Endangered Species Act expertise coordinate 2267 01 with the U.S. Fish and Wildlife Service regarding the 02 Endangered Species Act planning issues? 03 MR. WERNETTE: Typically, we do. The way the acts are 04 crafted, you know, encourages cooperation and coordination 05 with the federal agencies. They also do the best they can 06 in coordinating with the state, consistent with their charge 07 of protecting endangered species. 08 MR. CAMPBELL: Is the Department of Fish and Game 09 currently engaged in such coordination with the U.S. Fish 10 and Wildlife Service regarding Amendment Three? 11 MR. WERNETTE: Yes, we are, two ways. One of them is 12 regarding some of the initial planning on tidal wetlands 13 tall restoration. The second way is through the ECAT team 14 that Kamyar talked about in terms of compliance. So, 15 through both of those arenas we are coordinating closely 16 with their staff. 17 MR. CAMPBELL: Thank you. 18 C.O. CAFFREY: Thank you, Mr. Campbell. 19 Ms. Crothers, do you have any redirect? 20 MS. CROTHERS: Yes, I do. This is for clarification of 21 something. 22 ---oOo--- 23 // 24 // 25 // 2268 01 REDIRECT-EXAMINATION OF 02 DEPARTMENT OF WATER RESOURCES, DEPARTMENT OF FISH AND GAME 03 AND RESOURCE CONSERVATION DISTRICT 04 BY MS. CROTHERS 05 MS. CROTHERS: Mr. Guivetchi, you spoke in your 06 testimony of a letter of intent that was signed by the 07 parties and sent to the Board. I don't believe -- you 08 mentioned this letter of intent. Could you please explain 09 what you meant when you say it was submitted to the Board. 10 MR. GUIVETCHI: Yes. That letter of intent was signed 11 last fall, and it was submitted to the Board with a packet 12 of information requesting the Board extend the effective 13 dates for S-35 and S-97 that were in order 95-6. 14 MS. CROTHERS: Was that letter submitted to the Board 15 for this hearing? 16 MR. GUIVETCHI: No, it was not. 17 MS. CROTHERS: Can you recall who the parties or the 18 agencies are that signed the letter of intent? 19 MR. GUIVETCHI: Yes, I can. It was the four SMPA 20 agencies, the U.S. Bureau of Reclamation, the Department of 21 Water Resources, Department of Fish and Game and Suisun 22 Resource Conservation District. 23 MS. CROTHERS: Thank you. 24 C.O. CAFFREY: Thank you, Ms. Crothers. 25 By showing of hands, are there parties who wish to 2269 01 recross these witnesses? 02 Seeing and hearing no response, then, I will turn to 03 our staff and see if they have any recross questions. 04 MR. HOWARD: None. 05 C.O. CAFFREY: Anything from the Board Members? 06 Nothing from the Board Members. 07 With the exception of acceptance of evidentiary 08 exhibits, that completes the case in chief, the combined 09 case in chief, I should say, of the Department of Fish and 10 Game and the Department of Water Resources. 11 Do you wish to now offer your evidentiary exhibits into 12 the record? 13 MR. CAMPBELL: Yes, Mr. Chairman. 14 C.O. CAFFREY: Please come forward and do so. 15 MR. CAMPBELL: Mr. Chairman, Board staff, I would like 16 to offer the -- request that the following exhibits be 17 accepted into evidence for the record of this hearing: DFG 18 Exhibit 2, DFG Exhibit 22, DFG Exhibit 23, DFG Exhibit 24, 19 DFG Exhibit 25 and DFG Exhibit 26. 20 C.O. CAFFREY: Thank you, Mr. Campbell. 21 MR. CAMPBELL: Thank you. 22 C.O. CAFFREY: Do the staff have any commentary on that 23 or any clarifications, or does that synchronize with your 24 record keeping? 25 MS. WHITNEY: It synchronizes. 2270 01 C.O. CAFFREY: Thank you very much, Ms. Whitney. 02 Is there any objection to receiving the Fish and Game 03 evidentiary exhibits into the record as just described? 04 Hearing and seeing no objections, they are accepted 05 into the record. 06 Mr. Campbell, thank you, sir. 07 Ms. Crothers. 08 MS. CROTHERS: I would like these exhibits submitted 09 and accepted into the record. I will list them off: DWR 29, 10 DWR 30 and its appendices, DWR 31A through Q. And then the 11 statement of qualifications DWR 8, DWR 38. 12 MS. WHITNEY: They all synchronize. 13 C.O. CAFFREY: That all synchronizes. Thank you. 14 Is there any objection on the part of any of the other 15 parties to accepting these evidentiary exhibits into the 16 record? 17 Hearing and seeing no objection, they also are accepted 18 into the record. 19 Thank you, Ms. Crothers. 20 That now takes us to the case in chief to be presented 21 by Mr. Brandt for the Department of the Interior. 22 Thank you, gentlemen of the panel. Appreciate your 23 help. 24 Good afternoon, Mr. Brandt. 25 ---oOo--- 2271 01 OPENING STATEMENTS OF DEPARTMENT OF THE INTERIOR 02 BY MR. BRANDT 03 MR. BRANDT: Good afternoon, Mr. Chairman, Members of 04 the Board. 05 A word you are going to hear over and over from me and, 06 once again, you are going to here it today, is balance. 07 Department of Interior agencies have been in Suisun Marsh 08 for decades, both the Bureau of Reclamation and Fish and 09 Wildlife Service. We, as most of the agencies here, have 10 focused at one point where there was much attention at the 11 time, which was waterfowl. We have put a lot of attention 12 there over the years, as have a number of other agencies. 13 We remain, as we have been for many years, we remain 14 committed to the Marsh. We remain committed to protecting 15 the fish and wildlife that are there in the Marsh. I guess, 16 really, what we are trying to -- what we are trying to do 17 here today with our testimony is perhaps just shift some of 18 the attention away from waterfowl and towards some other 19 species that have gotten some attention but have not gotten, 20 in our view, enough attention. And those are certain 21 endangered species, particularly the ones that rely on tidal 22 marshes, not just the seasonal managed wetlands, but tidal 23 wetlands. 24 This Board has, in fact, that as one of its objectives 25 in the 1995 Water Quality Control Plan protection for those 2272 01 tidal wetlands. It is a narrative standard, as you well 02 know, and it's just something that we think needs some more 03 attention in the implementation. We take, perhaps, a 04 different view of implementation of that narrative standard 05 than the Board did, at least in its EIR, saying, "Well, if 06 you implement the numeric standards and the salinity 07 standards, we think that that may take care of narrative 08 standards. We think it is important and we are supportive 09 of full implementation of all the standards and all the 10 objectives, which includes, particularly, the narrative 11 objective of protecting tidal wetlands. 12 And that's why we really at this point cannot support 13 Amendment Three, and you'll hear a little bit more about 14 why. But one of the biggest reasons which you heard and 15 which, I think, your staff asked some good questions today 16 about, formal consultation really hasn't gone on. So, while 17 the Bureau of Reclamation has been involved and has been 18 supportive of the process to develop Amendment Three, we 19 generally support many of the aspects of Amendment Three. 20 We cannot support adoption at this time. It needs to go 21 through consultation. 22 A number of serious concerns about endangered species 23 need to be addressed, and it's not -- I think you will hear 24 more about it is not necessarily that they are not being 25 addressed in part by Amendment Three, but there are a number 2273 01 of other things that need to happen. I think you will hear 02 a little more about that today. 03 The way we see it, we are not in balance now, so that 04 is why the species that depend on the tidal marshes are not 05 being protected enough if you implement it just by doing 06 Amendment Three or just by focusing on the numeric 07 standards. They really need some protection and they need 08 your help, and that is why we are really looking to your 09 Board to focus some attention and encourage some action to 10 protect some of those endangered species. 11 We are not saying that Amendment Three to the Suisun 12 Marsh Preservation Agreement is a bad thing. We are not 13 absolutely opposed. We just think there needs to be a 14 number of things. We are looking for that balance that 15 needs to come in here to protect some endangered species. 16 That is why we would propose, and you will hear a 17 little bit more about this from the witnesses, that we want 18 to encourage all of you to help us and help all the parties 19 that are in the Marsh and have been for many, many years, to 20 focus more attention. We think that can happen first by 21 committing resources to the Suisun Ecological Work Group. 22 We think what they are doing and what they need to do is 23 very important. So, just need to, perhaps, some assistance 24 in focusing the attention of all the agencies on getting 25 that work group going and getting their recommendation into 2274 01 a triennial review in, perhaps, a few years, and set some 02 deadlines. It may help us. The best way that you may be 03 able to help us is setting some deadlines to get that work 04 done. That is all of us. We are all committed. 05 You will hear today Fish and Wildlife Service and the 06 Bureau of Reclamation are committed to participating and 07 committing the resources that perhaps have not been able to 08 be committed in the last -- in recent years. We are there 09 to commit and get this job done, because we think this is a 10 very important job that needs to be done. 11 Ultimately, if there is, you will hear a little bit 12 more about this and some explanation of it, we are looking 13 for greater variation in the tidal wetlands, greater 14 variation of salinity. And that is why we may have certain 15 views about what the species needs in that variation of and 16 implementation of the narrative standard. You will hear 17 more about that. 18 We just hope we can encourage you and work with all the 19 parties that are here today to bring back some of that 20 balance or perhaps bring in some of that balance and build, 21 and build on the other side so we can bring that balance and 22 restore some balance to a very precious ecosystem and 23 resource that California has. 24 With that I will bring up my two witnesses who will -- 25 if you don't mind, I would like to bring them up at the same 2275 01 time. They will present their direct testimony and then 02 both will be available as a panel. 03 C.O. CAFFREY: Thank you, Mr. Brandt. 04 MR. BRANDT: Mr. Thabault and Mr. Keck. 05 C.O. CAFFREY: Have both of these gentlemen taken the 06 oath? 07 MR. BRANDT: I do not believe so. 08 (Oath administered by C.O. Caffrey.) 09 C.O. CAFFREY: Let me just explain to you in the event 10 that your counsel has not, but I suspect he has. He is very 11 efficient. There is a 20-minute limitation on your 12 presentation of evidence. The reason for that is that your 13 exhibits have been presented at an earlier date, and so the 14 purpose of your direct testimony is merely to summarize what 15 is already in the record. So there is a 20-minute limit. 16 You have a little light that is in front of you. When you 17 start, it will go on green. When it shows yellow, you have 18 two minutes left. That is what it sounds like. We will not 19 penalize you when we interrupt you and ask you question. We 20 stop the clock, both for our question and for your answer. 21 The procedure for cross-examination, which you may 22 undergo if others of the parties decide to cross-examine 23 you, there is no time limit in cross-examination. We set an 24 hour goal for parties, but if the questions are relevant, 25 the questioning can continue. 2276 01 So, with that, then, Mr. Brandt, I know I have said it 02 time and time again for those who are here in the audience, 03 these two gentlemen are new to us, so I thought it would be 04 good time to explain it to them. 05 Please proceed. 06 ---oOo--- 07 DIRECT EXAMINATION OF 08 DEPARTMENT OF INTERIOR 09 BY MR. BRANDT 10 MR. BRANDT: Thank you, Mr. Chairman. With the start 11 of a new phase it always brings in new witnesses and people 12 who haven't been here with us in the last several weeks. 13 Let's start with Mr. Keck. 14 Mr. Keck, could you state your name for the record and 15 spell your last name, please. 16 MR. KECK: My name is Will Keck, K-e-c-k. 17 MR. BRANDT: What do you do for a living, Mr. Keck? 18 MR. KECK: I am the Special Projects Coordinator with 19 the Bureau of Reclamation. 20 MR. BRANDT: How long have you worked for Reclamation? 21 MR. KECK: Approximately 23 years. 22 MR. BRANDT: I am going to put in front of you 23 Department of Interior Exhibit 6 and point your attention to 24 particularly Exhibit 6A. Is Exhibit 6A a accurate 25 reflection of your statement of qualifications? 2277 01 MR. KECK: Yes, it is. At least it looks like it's 02 been padded to look like I'm really good. No, that is it. 03 C.O. CAFFREY: Do we subpoena this witness for you? 04 MR. BRANDT: Just answer the questions. 05 Looking at Exhibit 6, is that an accurate reflection of 06 your testimony here today? 07 MR. KECK: Yes, it is. 08 MR. BRANDT: Could you please summarize that testimony. 09 MR. KECK: I will be glad to. 10 C.O. CAFFREY: You can remain seated if you wish, Mr. 11 Keck; that is perfectly all right, or you can stand at the 12 podium, whatever you feel most comfortable with. 13 MR. KECK: That is fine. 14 As he mentioned, my name is Will Keck. I am the 15 Project Manager for the Suisun Marsh Project as it relates 16 to the Bureau of Reclamation. What I would like to do is 17 you have on record my testimony, which really wasn't padded. 18 I just wanted to lighten Alf up before we started here. 19 Anyway, what I would like to basically say is, try to 20 explain to you, you guys are wondering I am sure, what in 21 the world is Reclamation doing here, regarding this issue. 22 So, I wanted to kind of summarize what our position is and 23 why we are where we are. The other members of the SMPA 24 group have already spoken to you in quite detail about the 25 actions Amendment Three. 2278 01 I wanted to say, as you're probably aware, but maybe 02 not all the people here as this hearing are aware, is that 03 in this case we are wearing two hats. We are an active 04 member of SMPA and we are also in the Department of 05 Interior, which has goals and obligations that need to be 06 met and that we need to protect. So, in that respect that 07 is why we are here testifying separately from the other 08 three members of the SMPA. 09 I want to say, basically, on record that we've been 10 very involved in the Marsh. The amount of time I spent on 11 Suisun Marsh is just unbelievable. Over the years we spent 12 over $30 million on the Marsh. We are very active. We 13 think it is important that the taxpayer's money be used 14 properly and to make sure that we are aware of every action 15 that is going to occur there. We are more involved, I 16 should say, not in a technical level, because we've as -- 17 just happened over the years because of staff changes. 18 Everybody left Reclamation, went back to law school and they 19 are now testifying against us at hearings like this. 20 We are trying to do the job, and we basically have left 21 the technical expertise to the Department of Water Resources 22 and Department of Fish and Game. And when it comes down to 23 federal actions as such, the Fish and Wildlife Service is 24 the federal agency under the Interior who has to make sure 25 that there is no adverse effect from federal actions. 2279 01 So, even though we have not been involved, say, that 02 we have biologists out there, we do have that capability 03 when there is an action where we are sure that things are 04 taken care of in the proper manner. 05 So, basically, what has occurred was that we have 06 worked for the last three years, as I said worked together 07 closely with the other three parties and ourselves -- and I 08 might add, I think very well together. We have honest 09 disagreements, but we know we are heading for -- what we are 10 trying to do is get the same things: A better Marsh for 11 everyone. 12 In any event, when Amendment Three was worked through 13 these last three years, we have tried to envision it as an 14 action that we felt had no -- was mainly administrative 15 management actions that would improve on how the Marsh was 16 operated with the new X2 standards, would take care of some 17 problems and also take care of our requirements at S-35 and 18 S-97 under 95-6. 19 We have gone through this process, feel very 20 comfortable that everyone -- that we felt that every action 21 in there was -- did not have an adverse effect on that. 22 However, we had -- the Fish and Wildlife Service was 23 involved earlier on, but the endangered species didn't 24 really get involved until they started approximately six 25 months ago, I would guess, in detail reviewing some of the 2280 01 documents that we had prepared that had been looked at by 02 other Fish and Wildlife Service members. They immediately 03 told us they had some significant concerns. 04 At that time, we started meeting with them and the 05 other SMPA members in trying to find out exactly what these 06 concerns were and how significant they were. As we come to 07 find out, they feel they are very significant. So, although 08 we have been a supporter of Amendment Three and felt it did 09 not -- we cannot go forward with supporting Amendment Three 10 until formal consultation is initiated, and we make sure 11 positively, absolutely, that there is an adverse effect 12 impact on the endangered species within Suisun Marsh. 13 That's basically why we are sitting here separate from 14 them and making -- and I am up here explaining this balance 15 to you, where we are going. 16 What I think has happened, because of this, had we not 17 had so much occur regarding the potential problems in 18 endangered species, we probably would not have thought that 19 maybe throughout the past we have not given enough 20 consideration to other species in the Marsh, that the 21 waterfowl we had taken care -- we thought we were meeting 22 the requirements on managed wetlands. We were doing the 23 right things throughout the years. Now we've said we've got 24 to really start looking at these other species in the Marsh 25 and habitat for multi-species. 2281 01 The Fish and Wildlife Service will express their 02 concerns about endangered species. I just want to see a 03 Marsh that is beneficial to all species, waterfowl and 04 terrestrial and fishery species, all of them. So it's got 05 us really thinking a lot at Reclamation over the last year 06 or so about where we need to be in the future. And this has 07 been brought up too often. 08 Today's testimony is -- the SEW work group is a very, I 09 would say, profound action, a committee that I think can do 10 a lot of good. Because it is not just made up of Fish and 11 Game and DWR and ourselves and SRCD. It's made up of 12 outside agencies and outside people, and getting them 13 involved is something we think is really good because we 14 will get a better end result from that. We are very 15 supportive of that and we are supportive of utilizing some 16 of this money, this $3,000,000 that we may have available 17 for other multi-species in the Marsh. We just think it is 18 real important that we move in this manner towards a balance 19 in the Marsh as Mr. Brandt has already mentioned. 20 So, therefore, we are -- during these next two to three 21 years are hopeful that the SEW group can come up with some 22 recommendations together with us to providing input and such 23 from the technical aspects to help them and help us to find 24 ways to develop standards in the Marsh that are beneficial 25 to all the species. So, I'd just like to emphasize that we, 2282 01 too, feel that we need continued involvement from all of the 02 SMPA parties, the State Board, the Fish and Wildlife 03 Service, and other groups who have interests and concerns 04 about Suisun Marsh to ensure a balance for all species is 05 achieved and maintained in Suisun Marsh. That brings me to 06 my recommendations, and I haven't seen the yellow light, so 07 I am done, so I made it. 08 C.O. CAFFREY: You made it in ample time. You have ten 09 and a half minutes left. 10 MR. KECK: Well, there is a -- no, I won't go to that 11 joke. I worry Alf all the time. 12 C.O. CAFFREY: Our rules do not require that you take 13 every one of the 20 minutes. 14 MR. KECK: Thank you, Mr. Caffrey. I will finish up 15 with our recommendations. We would ask that the Board 16 withhold adoption of Amendment Three until formal 17 consultation is completed and any effects on endangered 18 species are determined. We are hopeful then that at that 19 time we can move ahead with Amendment Three. And, 20 hopefully, all the actions that are in it now, but we will 21 have to see what happens as a result of formal consultation. 22 We would also ask that you continue to give us a variance 23 on 35 and 97 until that time, until we can find a resolve to 24 that situation, and that, basically, that is it. 25 Just to in final, say that this balance that we are all 2283 01 speaking around today, we understand can't happen 02 immediately. But we're going to put the resources to task 03 to get this job done, to try and find this so that people 04 automatically think of waterfowl in the Suisun Marsh, but 05 they also think that waterfowl are protected but other 06 species are also -- that there is this growth in all areas. 07 And we think that we will be able to, all of us working 08 together, develop some standards to operate these salinity 09 control gates and the facilities within Suisun Marsh in a 10 manner that will be satisfactory to all the parties, and we 11 can move forward in our -- in the next years ahead to make 12 the Marsh as best we can. 13 Thank you. 14 C.O. CAFFREY: Thank you, sir. 15 Mr. Brandt. 16 MR. BRANDT: Mr. Thabault, would you state your name 17 for the record and spell your last name, please. 18 MR. THABAULT: Michael Thabault, T-h-a-b-a-u-l-t. 19 MR. BRANDT: Thank you, Mr. Thabault. What do you do 20 for a living? 21 MR. THABAULT: I am supervisory fish and wildlife 22 biologist in the endangered species division of the U.S. 23 Fish and Wildlife Service. 24 MR. BRANDT: How long have you had some working 25 relationship with the Suisun Marsh? 2284 01 MR. THABAULT: Approximately eight years. 02 MR. BRANDT: I put in front of you Department of 03 Interior Exhibit 7. I would like to point your attention, 04 particularly, to Exhibit 7A. Is Exhibit 7A an accurate 05 reflection of your qualifications as an expert on these 06 issues? 07 MR. THABAULT: Yes, it is. 08 MR. BRANDT: Is Exhibit 7 an accurate reflection of 09 your testimony here today? 10 MR. THABAULT: Yes, it is. I would, however, like to 11 point out one clarification regarding Page 5 where we 12 discussed requirements to EPA via Section 7, Consultation. 13 Only one of those was, in fact, a statutory requirement. 14 The other two were conservation recommendations; they are 15 not statutory requirements. 16 MR. BRANDT: Other than that, is Exhibit 7 an accurate 17 reflection of your testimony? 18 MR. THABAULT: Yes, it is. 19 MR. BRANDT: Would you please summarize that testimony. 20 MR. THABAULT: Mr. Chairman, members of the Board, the 21 Service has a long history in the Marsh, most recently with 22 the federal and state promulgation of water quality 23 standards. The Service has issued a biological opinion 24 through EPA on the promulgation of the federal standards 25 pursuant to the Clean Water Act in November of '94. The 2285 01 conclusion of that opinion was that the promulgation of 02 those standards would not jeopardize the continued existence 03 of any of those species evaluated. 04 The 1994 plan did not at the time evaluate 05 implementation of those standards. Subsequent to that 06 biological opinion, the Board adopted its own standards 07 which EPA determined would be equivalent or provide 08 equivalent protection to the federal standards; and at that 09 time EPA requested our concurrence with their determination. 10 We did, in fact, concur with that determination in 11 September of '95 with two provisions. One was that there 12 would be no changes in the standards during the water rights 13 phase and that a quantitative standard would, in fact, be 14 developed for Suisun Marsh to protect the brackish Marsh and 15 deal with the narrative standard. 16 The Service has a number of responsibilities when it 17 comes to fish and wildlife resources in the Marsh, which 18 include waterfowl, fish and wetlands management of all 19 kinds, as well as our statutory responsibility to protect 20 threatened and endangered species pursuant to the federal 21 Endangered Species Act. Marsh species that it will provide 22 protection pursuant to that federal act include the salt 23 marsh harvest mouse, California clapper rail, Delta smelt, 24 most recently two plants, Suisun thistle and soft bird's 25 beak as well as proposed fish species of Sacramento split 2286 01 tail. 02 We currently have recovery plans for many of these 03 species, which includes actions necessary in the Marsh for 04 their recovery. The Service is developing new and revising 05 some of those plans to address newly listed species or new 06 information. 07 The California clapper rail and salt marsh harvest 08 mouse plan specifically identify areas in Suisun Marsh as 09 essential habitat for those species. Essential habitat are 10 areas that are defined as necessary to prevent extension, 11 prevents irreversible decline in population or habitat or 12 other significant adverse or negative impacts short of 13 extinction. 14 The current governing standards in the Marsh are based 15 on studies focused on the true habitats of waterfowl. I 16 believe they are narrow in their scope and broad in their 17 assumptions and their conclusions. 18 The California Resources Code provides definition for 19 what the Marsh is. This definition encompasses more than 20 the seasonal wetlands managed for waterfowl. This concept 21 was further developed in the Suisun Marsh Preservation Act 22 which defined protection for those Marsh types. 23 The narrative standard developed by EPA states that 24 brackish marshes needed to be protected. The 1995 Water 25 Quality Control Plan contains similar language for the 2287 01 protection of brackish marshes. However, the Board's 02 proposed in their Draft Environmental Impact Report that the 03 quantifiable standards will not be developed at this time to 04 implement the narrative standard. 05 The EIR further states, and I quote: 06 The conditions, necessary to achieve this 07 narrative objective are not adequately 08 defined at this time in compliance with the 09 other flow and water quality objectives of 10 the 1995 Bay-Delta Plan, may be sufficient to 11 achieve this objective. (Reading.) 12 I believe that if this means the current quantitative 13 standards of the Marsh, I would disagree with that 14 conclusion. 15 The brackish marsh ecosystems require wide range of 16 salinities. Plant species are dependent upon variations in 17 salinity conditions during either the growing season or 18 beyond to sustain the integrity of the brackish marsh 19 community. Animal species depend upon a significant portion 20 of the brackish marsh community to forage and to breed. 21 Those brackish marsh communities also need spatial and 22 temporal fluctuations in salinities to create perturbations 23 so that certain plant communities may recolonize and that 24 exotic species may be suppressed, or exotic competitors can 25 be suppressed. 2288 01 The standards that are currently in place may have 02 suppressed the brackish marsh ecosystem and will continue to 03 do so if the status quo is maintained. 04 I certainly recognize that soil and soil water salinity 05 is extremely important to the waterfowl manager in the 06 Marsh. I fully believe that improvements in infrastructure 07 and seasonal managed wetlands in the Marsh are likely 08 necessary for the management of waterfowl. It is also my 09 opinion that threatened and endangered species that reside 10 in the Marsh need a wide variation in salinities to ensure 11 that the brackish marsh community on which those species 12 depends persists, expands and remains viable over the 13 long-term. 14 All the emphasis in the Marsh for the last 20 years has 15 been heavily weighted towards waterfowl or managed wetlands. 16 Interior recognizes that it may take some time to bring a 17 more balanced approach back to the resource management in 18 the Marsh. 19 With this perspective, the U.S. Department of Interior 20 is providing an alternative to the Board that it believes 21 brings reasonable balance between the various interests in 22 the Marsh, but which gives a higher level of certainty that 23 all the fish and wildlife resources will be protected in the 24 Marsh. Interior recommends that the Board proceed on a 25 phased approach beginning with a short-term plan which 2289 01 allows for the western stations at S-35 and S-97 to become 02 monitoring stations. 03 We believe the Board should direct the Suisun 04 Ecological Work Group to develop scientifically sound 05 standards in the Marsh within the next two years. 06 Subsequent to the SEW's recommendation, we believe the Board 07 should implement a triennial review to revise the standards 08 as necessary, or if necessary, to formulate an 09 implementation plan to implement those standards. We 10 believe this process should take no longer than three years 11 from now or July of 2001. 12 Should the SEW be unable to develop recommendations 13 within this time period to the Board, Interior recommends 14 that the Board take appropriate legal and procedural actions 15 to waive compliance with the remaining stations in the 16 Marsh, require that X2 criteria and other outflow standards 17 be used as necessary to meet water quality requirements in 18 the Marsh, and, based on studies conducted during the 19 intervening three years, to deal with the operations of the 20 Suisun Marsh salinity control gate operations. 21 Interior does not support the use of Green Valley Creek 22 for the purposes of freshening up the northwest corner of 23 the Marsh. 24 As Mr. Keck has identified, Interior does not recommend 25 that the Board adopt Alternative 5 from the Environmental 2290 01 Impact Report at this time. Alternative 5, which is, in 02 essence, Suisun Marsh Preservation Agreement Amendment 03 Three, provides a good foundation to work from, but by and 04 large continues to address only maintaining the current 05 standards focused on waterfowl. 06 While I appreciate the commitments made this morning by 07 DWR, SRCD and Fish and Game, I still remain -- have concerns 08 over certain aspects of Amendment Three. For example, in 09 the management plans, although there is a water management 10 program identified for the propagation of pickle weed, which 11 is critical for the salt marsh harvest mouse, the draft 12 plans that we have seen specifically recommend against that 13 water management plan in the Marsh. 14 Interior recommends that the Board give direction to 15 the SEW to develop water quality standards for the Marsh 16 that are protective for all fish and wildlife resources. In 17 the absence of such a recommendation, that the Board embark 18 on a proceeding that allows the existing regulatory 19 mechanisms to provide for water quality in the Marsh. 20 Interior further recommends that the Board provide the 21 SEW with the resources and direction to the SEW to fully 22 complete its task. And we also recommend that the other 23 agencies, ourselves included, participate and assist in SEW 24 also, and provide the necessary resources to complete a 25 quality recommendation to the Board. 2291 01 That summarizes my direct testimony. 02 C.O. CAFFREY: Thank you, Mr. Thabault. Am I 03 pronouncing your name correctly? Is it Thabault? 04 MR. THABAULT: Thabault. 05 C.O. CAFFREY: Thank you, sir. 06 Anything else, then, Mr. Brandt, before we go to 07 cross-examination? 08 MR. BRANDT: No, nothing before cross-examination. 09 C.O. CAFFREY: Thank you, sir. 10 By a showing of hands, do any of the parties wish to 11 cross-examine these witnesses? 12 Mr. Campbell, Mr. Gallery, Ms. Crothers, Mr. Minasian, 13 Mr. Nomellini. Did I miss anybody? 14 Let me read the names: Campbell, Gallery, Crothers, 15 Minasian, Nomellini. We will take them in that order. 16 Mr. Campbell. 17 ---oOo--- 18 CROSS-EXAMINATION OF DEPARTMENT OF INTERIOR 19 BY DEPARTMENT OF FISH AND GAME 20 BY MR. CAMPBELL 21 MR. CAMPBELL: Thank you, Mr. Chairman. Matthew 22 Campbell, Office of the Attorney General on behalf of the 23 Department of Fish and Game. 24 My questions will be directed to Mr. Thabault. You 25 indicated in your testimony that U.S. Fish and Wildlife 2292 01 Service has issued a recovery plan for the California 02 clapper rail and salt marsh harvest mouse; is that correct? 03 MR. THABAULT: That is correct. 04 MR. CAMPBELL: When did the Service issue that recovery 05 plan? 06 MR. THABAULT: 1984. 07 MR. CAMPBELL: Is the U.S. Fish and Wildlife Service 08 currently in the process of revising that recovery plan? 09 MR. THABAULT: Yes, we are. 10 MR. CAMPBELL: When does the Service expect that the 11 revision of the existing recovery plan for those species 12 will be completed? 13 MR. THABAULT: I am not sure the exact time line, but 14 I believe we would like to get a draft out this fiscal year, 15 which would end in September; for public review, sometime in 16 the late fall or early winter. 17 MR. CAMPBELL: That would be September of 1998? 18 MR. THABAULT: I believe that is when we were proposing 19 to get a draft out of the Sacramento field office. I do not 20 know once it leaves our office how long it will take. 21 MR. CAMPBELL: Do you know typically how long it takes 22 for a recovery plan to go from draft to final? 23 MR. THABAULT: There is no particular typical time 24 frame. They can take very short and can take very long. 25 MR. CAMPBELL: Do you have any expectation as to the 2293 01 length of the time it will take to get that particular 02 recovery plan from draft to final? 03 MR. THABAULT: Given the complexity of the plan and the 04 number of species that are in the plan, I would suspect it 05 will take a while. I do not have any idea how long. 06 MR. CAMPBELL: You have testified that the U.S. Fish 07 and Wildlife Service issued a biological opinion pursuant to 08 the Endangered Species Act to the United States 09 Environmental Protection Agency regarding the federal 10 promulgation of water quality standards for the Bay-Delta in 11 1994; is that correct? 12 MR. THABAULT: That's correct. 13 MR. CAMPBELL: I think you testified that the Fish and 14 Wildlife Service concluded in that biological opinion to the 15 United States Environmental Protection Agency that the 16 proposed water quality standards are not likely to 17 jeopardize the continued existence of the California clapper 18 rail and the salt marsh harvest mouse? 19 MR. THABAULT: That is correct. 20 MR. CAMPBELL: You have also testified that the State 21 Water Resources Control Board subsequently replaced the 22 Environmental Protection Agency's proposed Bay-Delta water 23 quality standards through the Board's issuance of the 1995 24 Bay-Delta Water Quality Control Plan. Is that correct? 25 MR. THABAULT: That is correct. 2294 01 MR. CAMPBELL: Did the U.S. Fish and Wildlife Service 02 conduct informal consultation with the United States 03 Environmental Protection Agency regarding the State Water 04 Resources Control Board's implementation -- excuse me, 05 regarding the State Water Resources Control Board's 06 replacement of U.S. EPA's standards with the Board's 1995 07 Water Quality Control Plan? 08 MR. THABAULT: We did. 09 MR. CAMPBELL: That would be DOI Exhibit 7F; is that 10 correct? 11 MR. THABAULT: Excuse me, I will have to find it. 12 More technically, I think that was a reinitiation of 13 the formal consultation, not specifically informal 14 consultation. 15 MR. CAMPBELL: You state in your testimony that the 16 Fish and Wildlife Service in that continuation of the formal 17 consultation, again, concluded that the Board's promulgation 18 of the 1995 Water Quality Control Plan, like U.S. EPA's 19 proposed promulgation of water quality standards, would not 20 be likely to jeopardize the continued existence of the 21 California clapper rail and the salt marsh harvest mouse 22 based on two conditions? 23 MR. THABAULT: That is correct. 24 MR. CAMPBELL: You testified that one of those 25 conditions is that there be no changes in the existing 2295 01 objectives in the 1995 Water Quality Control Plan? 02 MR. THABAULT: That is correct. 03 MR. CAMPBELL: Is it your testimony, regarding your 04 U.S. Fish and Wildlife recommendation to the Board, does 05 that include a change in the existing 1995 Water Quality 06 Control Plan, in the existing objectives in the 1995 Water 07 Quality Control Plan? 08 MR. BRANDT: Objection. Vague. 09 MR. CAMPBELL: Does your recommendation encompass a 10 change in the Suisun Marsh salinity objectives as set forth 11 in the 1995 Water Quality Control Plan? 12 MR. THABAULT: After going through all of the 13 appropriate legal procedural mechanisms to do that, that may 14 be appropriate, yes. 15 MR. CAMPBELL: Is it the Fish and Wildlife Service's 16 recommendation that that change in the existing objectives 17 in the 1995 Water Quality Control Plan be made as a part of 18 these Bay-Delta water rights hearing? 19 MR. THABAULT: No. 20 MR. CAMPBELL: The other condition in DOI Exhibit 7F, 21 does that -- can you read to me what that condition is, the 22 second condition. 23 MR. THABAULT: Certainly. Condition two states: 24 A quantitative water quality standard for the 25 protection of tidal marshes of the Suisun Bay 2296 01 consistent with EPA's narrative standard is 02 developed and incorporated in the 1995 Water 03 Quality Control Plan on or before the next 04 triennial review. (Reading.) 05 MR. CAMPBELL: So, does that condition mean that a 06 numeric standard for tidal marsh protection consistent with 07 the narrative standard may be developed and incorporated at 08 the next triennial review of the Bay-Delta Water Quality 09 Control Plan objective? 10 MR. THABAULT: I would have to say yes. 11 MR. CAMPBELL: Paragraph 12 of your testimony 12 references Chapter 7, Page 20 of the Board's Draft EIR for 13 this proceeding; is that correct? 14 MR. THABAULT: Could you reference the section again. 15 MR. CAMPBELL: Chapter 7, Page 20. 16 MR. THABAULT: Which section of my testimony? 17 MR. CAMPBELL: Part 12. 18 MR. THABAULT: Thank you. 19 It references, yeah, references the Board DEIR and 20 Water Quality Control Plan. 21 MR. CAMPBELL: I believe during your oral testimony you 22 quoted that page of the Draft EIR. That is my recollection; 23 is that correct? 24 MR. THABAULT: I believe that is correct, yes. 25 MR. CAMPBELL: Do you have that page of the Draft EIR 2297 01 with you here today? 02 MR. THABAULT: No, I do not. 03 MR. CAMPBELL: Are you familiar with the Draft EIR? 04 MR. THABAULT: Certain sections of it, yes. 05 MR. CAMPBELL: I have a copy of that page that I will 06 first give a copy to staff to confirm that this is an 07 accurate representation of Board Staff Exhibit 1. 08 MS. WHITNEY: Yes. 09 MR. CAMPBELL: I would offer to the Board what I am 10 doing is showing Mr. Thabault a page from the Draft EIR. It 11 is Chapter 7, Page 20, heading, "C. Alternatives For 12 Implementing the Suisun Marsh Objectives." 13 I would like you to please read, if you would, the 14 second full paragraph under heading C. 15 MR. THABAULT: 1995 Bay-Delta Plan also includes 16 a narrative standard, a narrative Suisun 17 Marsh objective which requires conditions 18 sufficient to support brackish Marsh 19 throughout all elevations of tidal marshes 20 bordering Suisun Bay. Conditions necessary 21 to achieve this objective are not adequately 22 defined at this time. Compliance with the 23 flow and water quality objectives in the 1995 24 Bay-Delta Plan may be sufficient to achieve 25 this objective. The SEW is evaluating whether 2298 01 this objective is being achieved and, if not, 02 what actions are necessary for its 03 implementation. This issue will be considered 04 in the next triennial review of the Bay-Delta 05 Plan. The Draft EIR will not, therefore, 06 include specific alternatives to achieve this 07 objective. (Reading.) 08 MR. CAMPBELL: Like the Board's statement in its Draft 09 EIR, the U.S. Fish and Wildlife Service in its continuation 10 of formal consultation with U.S. EPA regarding Suisun Marsh 11 objectives also looked to the triennial review as a means to 12 reevaluate and refine those objectives; is that correct? 13 MR. THABAULT: That is correct. 14 MR. CAMPBELL: So, then, that is some -- isn't that 15 somewhat contrary to the statement in your testimony at 16 Paragraph 12 that the Board's statement on the Draft EIR at 17 Chapter 7, Page 20 is not consistent with the Service's 18 biological opinion issued to EPA? 19 MR. BRANDT: Objection. Vague. 20 C.O. CAFFREY: I am not sure it is vague. Can you 21 answer the question, Mr. Thabault? Do you understand the 22 question? 23 MR. THABAULT: I do understand the question. 24 C.O. CAFFREY: Please answer it. 25 MR. THABAULT: The Service certainly anticipated the 2299 01 use of triennial review and legal processes to deal with the 02 objectives in the Marsh. The Service also anticipated that 03 within three years of promulgating those standards we would, 04 in fact, have a triennial review in front of us to be 05 dealing with it now, also at the same time as this water 06 rights phase. 07 MR. CAMPBELL: That portion of Chapter 7, Page 20, of 08 the Draft EIR that you just read also references the Suisun 09 Ecological Work Group or SEW; is that correct? 10 MR. THABAULT: That is correct. 11 MR. CAMPBELL: What is your understanding of the Suisun 12 Ecological Work Group; what is it? 13 MR. THABAULT: It is a group that was established by 14 the Board pursuant to their adoption of the Water Quality 15 Plan, and it was given the task, several tasks as a matter 16 of fact, I couldn't relate all of them, basically deal with 17 objectives in the Marsh. 18 MR. CAMPBELL: Have you reviewed the 1995 Water Quality 19 Control Plan? 20 MR. THABAULT: Not recently, but, yes. 21 MR. CAMPBELL: If I provide you with a copy of a page 22 from the Water Quality Control Plan that sets forth those 23 tasks, would that refresh your recollection regarding those 24 tasks? 25 MR. THABAULT: Certainly. 2300 01 MR. CAMPBELL: I will do so. 02 MR. BRANDT: I have put in front of the witness the 03 entire Water Quality Control Plan. I believe he has been 04 directed to Page 41. 05 MR. CAMPBELL: Yes. Thank you, Mr. Brandt. 06 Mr. Thabault, if you would, please read the first full 07 sentence beginning at the top of Page 41. 08 MR. THABAULT: "The Work Group"? 09 MR. CAMPBELL: Yes. 10 MR. THABAULT: The Work Group will, one, evaluate 11 the beneficial uses and water quality objectives 12 for Suisun Bay and Suisun Marsh ecosystem; two, 13 assess the effects on Suisun Bay and Suisun Marsh 14 of the water quality objectives in this plan 15 and the federal Endangered Species Act 16 biological opinions; three, identify specific 17 measures to implement the narrative objective for 18 the tidal brackish marshes of Suisun Bay and 19 make recommendations to the State Water Resources 20 Control Board regarding achievement of the 21 objective and development of numeric objectives 22 to replace it; four, identify and analyze specific 23 public interest values and water quality needs to 24 preserve and protect the Suisun Bay, Suisun Marsh 25 ecosystem; five, identify studies to be conducted 2301 01 that will help determine the types of actions 02 necessary to protect the Suisun Bay, including 03 Suisun Marsh; six, perform studies to evaluate the 04 effective deep water channel dredging on Suisun 05 Marsh channel water salinity; seven, perform 06 studies to evaluate impacts of urbanization in the 07 Suisun Marsh on the Marsh ecosystem; and, eight, 08 develop a sliding scale between the normal and 09 deficiency objectives for western Suisun Marsh. 10 (Reading.) 11 That is with a Footnote 7. 12 MR. CAMPBELL: Mr. Thabault, is the U.S. Fish and 13 Wildlife Service currently participating in SEW regarding 14 those tasks? 15 MR. THABAULT: Yes, it is. 16 MR. CAMPBELL: Based on your understanding of the 17 Service's participation in SEW, have you noted differences 18 of scientific opinion among the SEW participants regarding 19 what salinity standards for the Suisun Marsh are appropriate 20 to protect all wildlife species in the Marsh? 21 MR. THABAULT: I would say that is a fair 22 characterization. 23 MR. CAMPBELL: Does the U.S. Fish and Wildlife Service 24 intend to continue to participate in SEW for the purpose of 25 preparing recommendations regarding salinity standards and 2302 01 other measures to protect the Marsh? 02 MR. THABAULT: We do. 03 MR. CAMPBELL: Does the U.S. Fish and Wildlife Service 04 anticipate that SEW's recommendation will be used by the 05 Board as part of its triennial review of the existing Suisun 06 Marsh water quality objectives? 07 MR. THABAULT: We would certainly hope so, yes. 08 MR. CAMPBELL: You have testified that. I believe you 09 testified, that historically management of Suisun Marsh 10 resources focused more on open maximizing waterfowl 11 benefits; is that correct? 12 MR. THABAULT: Yes. 13 MR. CAMPBELL: Are you aware of actions, any actions, 14 that are currently proposed or planned to enhance tidal 15 marsh to aid listed species in the Suisun Marsh? 16 MR. THABAULT: I am aware of some proposals, yes. 17 MR. CAMPBELL: Could you tell me what those proposals 18 are. 19 MR. THABAULT: Most significantly, of course, is the 20 one that Mr. Wernette discussed, is Rush Ranch. We are also 21 working with the Fish and Game to identify certain parcels 22 dealing with the 1500 acres that Mr. Wernette mentioned in 23 terms of providing high quality salt marsh harvest mouse 24 habitat. 25 I am not aware of any other specific parcels. 2303 01 MR. CAMPBELL: In your written testimony you have 02 recommended that the Board waive or not require compliance 03 with all Suisun Marsh water quality objectives at stations 04 S-35 and S-97. Is that correct? 05 MR. THABAULT: That is what is in my written 06 testimony. 07 MR. CAMPBELL: Are you aware that Amendment Three to 08 the Suisun Marsh Preservation Agreement, as proposed to the 09 State Water Resources Control Board as part of these 10 proceedings, also calls for a waiver of the requirement that 11 the United States Bureau of Reclamation and the Department 12 of Water Resources complied with Suisun Marsh water quality 13 standards at stations S-35 and S-97? 14 MR. THABAULT: I am aware that they have requested them 15 to become monitoring stations, yes. 16 MR. CAMPBELL: The request to become monitoring -- 17 that they become monitoring stations is the same as waiving 18 them as compliance stations; is that correct? 19 MR. THABAULT: Presumably. 20 MR. BRANDT: Objection. Calling for legal conclusion. 21 I know your general rules are -- 22 C.O. CAFFREY: He can answer to the best of his ability 23 or maybe he has no ability to answer it. I will leave it up 24 to the witness. 25 MR. THABAULT: Thank you, Mr. Chairman. May I add a 2304 01 qualifying statement to that? 02 C.O. CAFFREY: You certainly may. 03 MR. THABAULT: It is my understanding they will also 04 try and manage to the standard at one of those stations 05 regardless of whether it is monitored or not. 06 MR. CAMPBELL: In your written testimony you have 07 recommended a three-year time period for waiver of 08 compliance at stations S-35 and S-97; is that correct? 09 MR. THABAULT: That is correct. 10 MR. CAMPBELL: Is there any reason why you have picked 11 that particular time period? 12 MR. THABAULT: Seemed like a reasonable time frame to 13 gather sufficient information and allow SEW to conclude its 14 process. 15 MR. CAMPBELL: That is based on your opinion of what is 16 a reasonable amount of time? 17 MR. THABAULT: That is based on my opinion what is a 18 reasonable amount of time; that's correct. 19 MR. CAMPBELL: You have also -- excuse me. 20 You have testified that the U.S. Fish and Wildlife 21 Service will consult with U.S. Bureau of Reclamation 22 pursuant to the Endangered Species Act, Section 7, regarding 23 any potential effects to listed or proposed species from the 24 implementation of Amendment Three to the Suisun Marsh 25 Preservation Agreement; is that correct? 2305 01 MR. THABAULT: That is correct. 02 MR. CAMPBELL: When will that Endangered Species Act 03 consultation process begin? 04 MR. THABAULT: My understanding is that Reclamation is 05 in preparation of a biological assessment at this time that 06 will be forthcoming in late August or early September. If 07 we conclude that the information in that assessment is 08 adequate and complete, we have 135 days to complete our 09 consultation from that time frame. 10 MR. CAMPBELL: My math isn't very good; that is why I 11 am a lawyer. When do you think that consultation process 12 will be completed? 13 MR. THABAULT: In 135 days approximately, four months; 14 September, October, November, December. January or early 15 February at the latest. 16 MR. CAMPBELL: Early next year? 17 MR. BRANDT: Is that yes? 18 MR. THABAULT: That is a yes. 19 MR. CAMPBELL: Has the U.S. Fish and Wildlife Service 20 concluded that implementation of Amendment Three to the 21 Suisun Marsh Preservation Agreement will jeopardize the 22 continued existence of any listed or proposed species? 23 MR. THABAULT: That would be a predecisional statement 24 on my part until the consultation is complete. 25 MR. CAMPBELL: Try to ask it another without trying to 2306 01 belabor the question. 02 It hasn't concluded one way or the other; is that 03 correct? 04 MR. THABAULT: Our section -- well, Section 7 05 consultation hasn't been initiated yet. The biological 06 opinion is the one that gives a definitive answer to that 07 question. 08 MR. CAMPBELL: That leads me to my next question: Is 09 it possible that as a result of the Section 7 consultation, 10 the U.S. Bureau of Reclamation would not need to modify 11 Amendment Three to the Suisun Marsh Preservation Agreement? 12 MR. THABAULT: Is it possible that they would not have 13 to modify their action? It is certainly possible, yes. 14 MR. CAMPBELL: Thank you. I have no further questions 15 at this time. 16 C.O. CAFFREY: Thank you, Mr. Campbell. 17 Mr. Gallery. 18 ---oOo--- 19 CROSS-EXAMINATION OF DEPARTMENT INTERIOR 20 BY CITY OF VALLEJO 21 BY MR. GALLERY 22 MR. GALLERY: Thank you. 23 Mr. Keck and Mr. Thabault, I represent City of 24 Vallejo, and I just have a few questions. I think most of 25 them are for Mr. Thabault, but if you are better qualified, 2307 01 feel free to answer them. 02 First, you, gentlemen, particularly the biologist, 03 talk about salt marsh and brackish marsh and tidal marsh. I 04 wonder, maybe you can tell me how those different terms -- 05 how do you classify them? What is salt marsh? And what is 06 a brackish marsh? And what is a tidal marsh? 07 MR. THABAULT: A tidal marsh is a marsh that is 08 basically subject to tidal influence regardless of amount or 09 extent. 10 A salt marsh is, in fact, a marsh that is more subject 11 to marine influences and higher salinity. 12 A brackish marsh would be defined as a marsh that is an 13 intermediate marsh between a fresh water marsh and a salt 14 marsh, which has a highly variable and a wide fluctuation 15 and high tolerances of varying salinities. 16 MR. GALLERY: Then the term "managed wetlands," how 17 would you define that? 18 MR. THABAULT: A managed wetland can either be a 19 brackish marsh, a salt marsh or a fresh water marsh. 20 Typically, it is one that is diked off and requires some 21 sort of infrastructure and some sort of activity from a 22 human being to turn a gate or operate a pump or something to 23 that effect. 24 MR. GALLERY: Mr. Thabault, when you talk about you 25 feel that there is a need for more variability in salinity, 2308 01 and the existing '95 plan seems to have fixed levels of 02 salinity to the control period, when you say more 03 variability, do you mean you think there's a need for more 04 saline standards at some times or less saline standards? 05 What do you mean by variability? 06 MR. THABAULT: I am not quite sure I put it in terms 07 of a standard. I would -- basically, when we talk about 08 variability, there are drought cycles and wet cycles that 09 occur in a system. And that variability is going to be what 10 is absent in management. 11 Typically, salinities in the Marsh would be higher 12 during drought periods. So we would look to have a system 13 basically supported by the variability of outflow and tides 14 versus trying to manage within a narrow band or even a broad 15 moderate band of salinities. 16 MR. GALLERY: When you recommend that the standard at 17 S-35 and S-97 be waived for another three years, are you -- 18 is it your position that those -- that the salinity 19 standards in the '95 plan ought not to be that low; that is, 20 that it is all right to be saltier at those stations than 21 what the plan would call for? 22 MR. THABAULT: We believe for the species that the 23 Service is concerned about, that the channel water 24 salinities specifically and habitats that channel water 25 supports in the Western Marsh could probably sustain a wider 2309 01 variation of salinity both in time and in space. 02 MR. GALLERY: Let me ask you this: Just your 03 understanding of the federal Endangered Species Act is 04 designed to protect endangered species and the state act is 05 also designed to protect endangered species. 06 In the Suisun Marsh, where do you two interface in your 07 respective authority? Can you just give me your opinion on 08 that, how you two flange up, so to speak, in those 09 protections? 10 MR. THABAULT: It's fairly typical that for the species 11 that are jointly listed under the state act and federal act 12 that fairly significant coordination occurs between our 13 respective agencies, Department of Fish and Game and the 14 Service, when it comes to protection. 15 MR. GALLERY: You mentioned a recovery plan, that the 16 Fish and Wildlife Service has a recovery plan for the 17 species in the Marsh. Is it that narrow or is it broader 18 than that? 19 MR. THABAULT: We have recovery plans for certain 20 species right now. We also have some species that have just 21 been recently listed and we do not have a recovery plan for 22 those species. 23 MR. GALLERY: What is a recovery plan in the order of 24 things, as far as Fish and Wildlife is concerned? Is this a 25 statutory requirement? What is it? Where does it come 2310 01 from? 02 MR. THABAULT: A recovery plan, it's statutory 03 requirement for us to develop one. It then serves as a 04 guidance document to state, federal, local agencies. It 05 gives actions that can be implemented that would lead to, 06 in our opinion, recovery of the species and sets forth 07 specific criteria, usually quantitative which would need to 08 be met in order for us to consider a delisting of the 09 species and make a determination that it, in fact, 10 recovered. 11 MR. GALLERY: In and of itself, is it something that is 12 binding on the federal agencies or is it just kind of a 13 master plan, a guidance document? 14 MR. THABAULT: It is not a binding document. 15 MR. GALLERY: Then the AFRP, the Anadromous Fisheries 16 Recovery Plan, that came out of the CVPIA, that's a 17 different type of plan; is that right? 18 MR. THABAULT: Yes. The Anadromous Fisheries 19 Restoration Plan was developed under the Central Valley 20 Project Improvement Act, which has its own set of 21 authorities and guiding regulations. 22 MR. GALLERY: There is some overlap between the two, is 23 there? 24 MR. THABAULT: There certainly can be overlap since 25 the AFRP deals with mostly anadromous fish, and that 2311 01 jurisdiction lies with the National Marine Fishery Service, 02 coordination would be with National Marine Fishery Service 03 on their recovery plans that listed anadromous fish. 04 MR. GALLERY: So that both, NMFS has recovery plans as 05 well as U.S. Fish and Wildlife, both agencies? 06 MR. THABAULT: NMFS currently has a recovery plan for 07 winter-run chinook salmon. 08 MR. GALLERY: I want to ask you about the -- EPA was 09 going to prescribe the standards for the Delta before the 10 '95 plan was adopted. And the service wrote a biological 11 opinion on the adequacy of those standards, right? 12 MR. THABAULT: That is correct. 13 MR. GALLERY: Those standards were never adopted or 14 implemented by the Environmental Protection Agency and 15 instead this Board adopted the '95 plan and said, "We will 16 undertake to implement that plan." 17 You have no biological opinion that applies to the 18 Board's 95 plan; is that correct? 19 MR. THABAULT: Not technically. What we did was we 20 issued a biological opinion to EPA on their promulgation. 21 When the state developed their plan and EPA withdrew and 22 concurred that the state's water quality standards were 23 equivalent in nature, we concurred with that action. 24 The current biological opinion on the federal standards 25 does, in fact, is in fact, in place. However, we 2312 01 substituted the state's standards to the federal standards 02 by our letter. We basically stated that the state's 03 standards provided equivalent protection and not 04 substantively change the basis of our analysis. 05 MR. GALLERY: So that, now that the Board has adopted 06 its '95 plan and is proceeding to implement it, does your 07 biological opinion, that was addressed to the EPA, have any 08 standing now? What is its -- 09 MR. BRANDT: Objection. Vague as to "standing." Among 10 who? May call for legal conclusion. 11 MR. GALLERY: To what extent do we need to read the 12 biological opinion now if the Board proceeds to implement 13 the plan? Can we just ignore the '95 biological opinion? 14 MR. THABAULT: I would not ignore the '94 biological 15 opinion. 16 MR. GALLERY: It is 1994, is it? 17 MR. THABAULT: It says November 1994 Biological 18 Opinion. The reinitiation statement which basically 19 describes when such a consultation would be reopened, 20 discusses that either a change in information, potentially a 21 change in standards, and an establishing of an 22 implementation plan to implement those standards may, in 23 fact, provide new information or constitute new information 24 or reopen the biological opinion. 25 MR. GALLERY: It seems that I read a 1995 biological 2313 01 opinion that was written after the Board adopted its '95 02 plan in May. 03 MR. THABAULT: Correct. The 1995 biological opinion 04 that you are referring to is the biological opinion we wrote 05 to the Bureau of Reclamation and the California Department 06 of Water Resources on the joint operations of state and 07 federal water projects. When we signed the Bay-Delta Accord 08 and the state promulgated their standards, it was agreed 09 that Reclamation and DWR would assume a certain level of 10 responsibility for implementation of the water quality 11 standards, including the state's decision on an 12 implementation plan. 13 So, our consultation covers the operations of the 14 federal projects and their relationship to their part of the 15 implementation of the standards. 16 MR. GALLERY: The federal and state operation of the 17 projects was to be just a three-year program and was to be 18 superseded then by the implementation of the state's water 19 quality plan? 20 MR. BRANDT: I am just going to object at some point, 21 Mr. Chairman. I appreciate Mr. Gallery taking us through a 22 history of all the biological opinions, but at some point I 23 think it needs to get to -- a relevance objection. At some 24 point it needs to get to Suisun Marsh, not just everything 25 about the entire Delta Operation Plan. 2314 01 C.O. CAFFREY: Mr. Gallery, I trust that you are right 02 on the brink of bringing this back to some relevancy with 03 regard to the Suisun Marsh? 04 MR. GALLERY: Yes. It was coming into the Suisun Marsh 05 here very shortly. 06 C.O. CAFFREY: All right, sir. We will trust your 07 goodwill and ask the witness -- duly note the appropriate 08 comment by Mr. Brandt, but ask the witness to answer the 09 question with the understanding that Mr. Gallery is going to 10 bring us to Suisun at any moment. 11 MR. THABAULT: Can you please repeat the last 12 question? 13 MR. GALLERY: Yes. Now that the '95 biological 14 opinion was addressed to state and federal operation of the 15 projects for the three-year period that they had committed 16 to in the Accord, and the presumption is that the Water 17 Board by that time will implement its own '95 plan. So, 18 then, where are we with your '95 biological opinion? Does 19 it fade away? 20 MR. THABAULT: There was no specific time line 21 identified in the biological opinion. The '95 biological 22 opinion is a long-term operations of the state and federal 23 water projects. Should their responsibility to the 24 implementation plan by the State Board change, we may 25 reinitiate that consultation with the state and federal 2315 01 water projects to evaluate their project operations as 02 modified by Board action. The biological opinion does not 03 go away; it is in force and effect until changed. 04 MR. GALLERY: I believe you indicated that you thought 05 that the SEW process requires another two years to get to 06 its conclusion; that that was an estimate of reasonable 07 time? 08 MR. THABAULT: I didn't necessarily say it required an 09 extra two years. I said we recommended that we give them 10 two years to conclude their process. 11 MR. GALLERY: Then did you suggest or recommend that 12 then there should be a triennial review then three years 13 from now following that SEW process or within three years? 14 MR. THABAULT: I would recommend within three years or 15 as soon as the SEW recommends to the Board an action, 16 whichever comes first. 17 MR. GALLERY: You have indicated that you thought that 18 in the past and in the standards there has been too much 19 concentration on maximizing waterfowl benefits. If you 20 know, where does the Suisun Marsh fit in in California in 21 terms of its importance to wintering waterfowl? Is it one 22 of only a few places or relatively -- where does it fit in 23 in importance? 24 MR. THABAULT: Since I am not a waterfowl manager in 25 the state of California, I don't really feel qualified to 2316 01 place an importance on it as a waterfowl habitat, per se, in 02 California. 03 MR. GALLERY: Mr. Keck, do you have any feeling about 04 that? Where does the Suisun Marsh fit in in terms of its 05 wintering and waterfowl importance compared to the Central 06 Valley, the other marshes in the Bay? 07 MR. KECK: Mr. Gallery, I really don't have a response 08 to that. I never heard anyone say specifically. I know it 09 is in the Pacific Flyway, that birds use it. That's all I 10 know. 11 MR. GALLERY: That is all I have, Mr. Chairman. 12 C.O. STUBCHAER: Thank you, Mr. Gallery. 13 Let's take a break now because Noey's next door closes 14 at 3:00. So if anyone needs a refreshment, this is the time 15 to do it. 16 (Break taken.) 17 C.O. CAFFREY: Let's resume. Back on cross-examination 18 of this panel. 19 Ms. Crothers. 20 ---oOo--- 21 CROSS-EXAMINATION OF DEPARTMENT OF INTERIOR 22 BY DEPARTMENT OF WATER RESOURCES 23 BY MS. CROTHERS 24 MS. CROTHERS: Good afternoon, Chairman Caffrey, Board 25 Members and staff. 2317 01 Mr. Keck, you have stated that as the Bureau of 02 Reclamation Program Manager for the Suisun Marsh, you 03 attended technical meetings for developing future actions 04 for the Marsh; is that correct? 05 MR. KECK: That's correct. 06 MS. CROTHERS: What other agencies do you recall were 07 participants at these Marsh technical team meetings? 08 MR. KECK: The California State Department of Fish and 09 Game and the California State Department of Water Resources 10 and Suisun Resource Conservation District. 11 MS. CROTHERS: Were there proposed actions developed by 12 the Marsh technical team, for instance, the portable pump 13 program or water manager program, presented to 14 representatives of the Bureau of Reclamation, Department of 15 Water Resources, Fish and Game and SRCD who were responsible 16 for negotiating provisions of the SMPA Amendment Three? 17 MR. KECK: Yes, they were. 18 MS. CROTHERS: Did you attend these Amendment Three 19 negotiator meetings? 20 MR. KECK: Yes, I did. 21 MS. CROTHERS: Who is the U.S. Bureau of Reclamation 22 representative responsible for negotiating the SMPA 23 amendment? 24 MR. KECK: Robert F. Stackhouse [phon]. 25 MS. CROTHERS: What is Mr. Stackhouse's position at the 2318 01 Bureau? 02 MR. KECK: He is the regional resources manager, 03 MS. CROTHERS: Did you keep Mr. Stackhouse informed of 04 anything you discussed at the technical team meetings in 05 preparation for the negotiator meetings? 06 MR. KECK: Yes, I did. 07 MS. CROTHERS: Did you observe how the negotiators of 08 the Amendment Three reached decisions on provisions to 09 include in the amendment? 10 MR. KECK: Yes, I did. 11 MS. CROTHERS: Did the negotiators decide on the 12 actions to include in the amendment by unanimous agreement? 13 MR. KECK: To the best of my knowledge, yes, they did. 14 MS. CROTHERS: As an example of this consensus process 15 used to develop Amendment Three, I would like to ask just a 16 few questions on how the negotiators resolved issues with 17 respect to the redirection of drainage water off Morrow 18 Island. 19 Did the technical team inform the negotiators of Fish 20 and Wildlife Service concerns with potential environmental 21 impacts? 22 MR. BRANDT: Objection. 23 MS. CROTHERS: From the proposed action? 24 MR. BRANDT: Objection. Compound. Sounds like there 25 are two questions. 2319 01 MS. CROTHERS: The first was just kind of an 02 explanation of what I am asking so he would have some 03 context. 04 (Discussion held off record.) 05 MS. CROTHERS: I will reask the question. 06 C.O. CAFFREY: Please, go ahead. 07 MS. CROTHERS: Did the technical team inform the 08 negotiators of Fish and Wildlife Service concerns with 09 potential environmental impacts from the proposed 10 redirection of drainage water from Morrow Island? 11 MR. KECK: Yes, they did. 12 MS. CROTHERS: Did the technical team inform the 13 negotiators of additional channel water salinity modeling 14 performed to further analyze the benefits provided by this 15 redirection of Morrow Island drainage water? 16 MR. KECK: Yes, they did. 17 MS. CROTHERS: Based on the Fish and Wildlife Service 18 concerns and the salinity modeling results, did the 19 negotiators unanimously agree to delete the provisions from 20 Amendment Three? 21 MR. KECK: Yes, they did. 22 MS. CROTHERS: Is it your understanding that the 23 Bureau, along with DWR, Fish and Game and SRCD, have agreed 24 in principle to the provisions now included in the draft 25 Amendment Three dated June 20th, 1998, which was provided to 2320 01 the Board for this hearing contingent upon completion of its 02 CEQA, NEPA and ESA requirements? 03 MR. BRANDT: Objection. Vague as to agree to what 04 level? 05 MS. CROTHERS: I will restate this question. 06 C.O. CAFFREY: Thank you, Ms. Crothers. 07 MS. CROTHERS: Earlier Mr. Kamyar Guivetchi referred to 08 a letter of intent signed last fall by the parties of the 09 SMPA, which included the SRCD, Fish and Game and DWR and the 10 Bureau of Reclamation. Did you hear Mr. Guivetchi's 11 testimony? 12 MR. KECK: No, I wasn't here at that time. 13 MS. CROTHERS: Do you recall a letter of intent that 14 was prepared and submitted to the Board last fall with 15 respect to requesting the Board extend the effective dates 16 of S-97 and S-35, and that letter stated that the intent of 17 the four parties to the SMPA to sign Amendment Three after 18 completion of the CEQA, NEPA and ESA requirements? 19 MR. KECK: Yes, I do remember that. 20 MS. CROTHERS: In that letter -- did you also 21 participate in the meetings that led to preparation of the 22 draft Environmental Assessment Initial Study for Amendment 23 Three submitted to this Board? 24 MR. KECK: Yes, I did. 25 MS. CROTHERS: Please name the other agencies that 2321 01 participated in these meetings that led to drafting of that 02 Environmental Assessment Initial Study. 03 MR. KECK: The Department of Fish and Game, the 04 Department of Water Resources, the Suisun Resource 05 Conservation District, the Bureau of Reclamation. We had 06 input from U.S. Fish and Wildlife service and, to the best 07 of my knowledge, that is the agencies that were involved in 08 that. 09 MS. CROTHERS: Did the National Marine Fisheries 10 Service have some participation? 11 MR. KECK: Yes, they did. Excuse me, earlier on they 12 had participation. 13 MS. CROTHERS: As part of the process in preparing the 14 environmental documentation to support the Amendment Three 15 actions, have the SMPA parties engaged in informal 16 consultations with the National Marine Fisheries Service as 17 to potential impacts to fisheries under their jurisdiction 18 from the SMPA actions? 19 MR. KECK: Yes, we did. 20 MS. CROTHERS: Do you recall that NMFS submitted a 1997 21 letter in support of Amendment Three? 22 MR. KECK: Yes, contingent upon some action that we 23 were to accomplish. 24 MS. CROTHERS: As part of the process of preparing the 25 environmental documentation for Amendment Three, have the 2322 01 SMPA parties engaged in informal consultation with Fish and 02 Wildlife Service? 03 MR. KECK: Yes, they have. We have. Someone has. 04 Yes. 05 MS. CROTHERS: Is it your understanding, however, that 06 the Bureau and the other agencies of the SMPA, Fish and 07 Game, DWR and SRCD, have agreed to complete formal 08 consultations with Fish and Wildlife Service on the absence 09 of Amendment Three and then would intend to sign the 10 Amendment Three? 11 MR. KECK: Yes, as long as all the elements, the 12 elements in Amendment Three met the requirements of the 13 formal consultation. 14 MS. CROTHERS: Thank you. That is all I have. 15 C.O. CAFFREY: Thank you, Ms. Crothers. 16 Mr. Minasian. 17 ---oOo--- 18 CROSS-EXAMINATION OF DEPARTMENT OF INTERIOR 19 BY SOLANO IRRIGATION DISTRICT 20 BY MR. MINASIAN 21 MR. MINASIAN: Mr. Thabault, I am Paul Minasian with 22 the Solano Irrigation District. Could I ask you to flush 23 out your views in regard to the Green Valley Creek. Let me 24 ask you a series of subquestions. 25 You understand that it was proposed to have a flow 2323 01 regime artificially created in Green Valley Creek, either 02 through wastewater from a sewer plant, through releases from 03 the Solano Project's Putah South Canal, or through releases 04 of stored water of the City of Vallejo who Mr. Gallery 05 represents. 06 The fault you found with that program was that it would 07 make that area of the Marsh less salty; is that the main 08 fault? 09 MR. THABAULT: Or at least more fresh, yes. 10 MR. MINASIAN: Was the fault also that there was not 11 variability; that is, those were artificial flows largely 12 during the springtime and, therefore, the variability of the 13 natural flows in those creeks in that area and the channels 14 would not be recreated? 15 MR. THABAULT: It is my understanding that those flows 16 were going to be during the spring, which is critical for 17 the growing season for some of the plants that we are 18 concerned about, yes. 19 MR. MINASIAN: Your view is that variability of -- at 20 least tentatively your view before the biological opinion is 21 variability is better than uniformity in terms of flow? 22 MR. THABAULT: That is correct. 23 MR. MINASIAN: And is it a correct statement that you 24 do not favor the imposition of artificial flows of water, 25 artificial sources of water such as sewer water or Putah 2324 01 South Canal water, in that particular area of the Marsh 02 based upon the facts you have available to you now? 03 MR. THABAULT: For the sole purposes of meeting the 04 salinity standard; that is correct. 05 MR. MINASIAN: You talked about tidal use of the areas 06 of the Suisun Marsh as tidal wetlands as opposed to managed 07 wetlands. 08 Mr. Gallery, you were helpful in trying to define 09 those. 10 Generally, the Suisun Marsh is bermed, is it not; that 11 is, there are levees built around the channels so the areas 12 may be managed for waterfowl? 13 MR. THABAULT: Waterfowl management from diking is one 14 type of managed wetland in the Marsh. 15 MR. MINASIAN: Is, generally, diking inconsistent with 16 the tidal management scenario that you believe should be 17 looked at further? 18 MR. THABAULT: Diking certainly makes certain types of 19 tidal marsh and brackish marsh management much more 20 difficult, yes. 21 MR. MINASIAN: For clarification purposes, did I hear 22 correctly that if SEW had not come forth with a specific 23 program that seemed to properly balance, as the word is 24 used, by July of 2001, that it was the suggestion of Fish 25 and Wildlife that this Board absolve the projects of the 2325 01 Numerical Standards Act of all monitoring and compliance 02 locations in the Marsh? 03 MR. THABAULT: I believe more specifically my testimony 04 stated that we would give the SEW two years to accomplish 05 their task, and that the Board would then take their 06 information and embark on a triennial review and the legal 07 processes to either waive the standards or develop 08 appropriate standards in the Marsh. 09 MR. MINASIAN: Did I hear incorrectly, this is a 10 proposition, please correct it, if you would, if it is 11 wrong, that you could envision a circumstance in which the 12 Board kept its X2, which is the outflow of water over time, 13 but abrogated or canceled the numerical standards in the 14 Marsh? 15 MR. THABAULT: Certainly, using X2 and the outflow 16 standards during the other months when X2 does not -- is not 17 in place, is certainly one option the Board could use in 18 terms of managing salinities in the flat Marsh. That is 19 correct. 20 MR. MINASIAN: I don't want to trap you, but what is 21 your view of what the Board should do if SEW hasn't come up 22 with a numerical standard that would encapsulate the tidal 23 characteristics of the Marsh to the satisfaction of Fish and 24 Wildlife Service? 25 MR. CAMPBELL: Objection. That question is not 2326 01 relevant to the proceeding that is before the Board today. 02 The question is going to how would the Service revise the 03 existing standards in the Water Quality Control Plan. It is 04 my understanding that this hearing hasn't been noticed for 05 that type of consideration. I mean, if that question is 06 appropriate, then, we should have information on why or what 07 is the -- should the Vernalis salinity objective be changed 08 or not changed. 09 So, on the grounds that the question asks for -- calls 10 for information that is -- a response that is completely 11 irrelevant to this proceeding, I object. 12 C.O. CAFFREY: Mr. Minasian, do you have a comment? 13 MR. MINASIAN: Yes, I do. X2 is quite relevant if we 14 are going to be providing water for a particular 15 standard. And X2 was set on the basis that a portion of the 16 water for X2 was necessary for the Marsh and for the 17 operations to meet certain numerical standards and to 18 operate the gates in a particular way. If there is a 19 opinion, and there may not be, as to what should happen to 20 X2 if we don't have a tidal numerical standard, I would like 21 to hear what it is. 22 C.O. CAFFREY: Mr. Campbell, one last time. 23 MR. CAMPBELL: Even as Mr. Minasian has rephrased it, 24 the question goes to what should be the -- what is an 25 appropriate standard for the Marsh. And that should be 2327 01 addressed by the Board in its triennial review of the 02 existing standards and not part of this water rights 03 proceeding to implement those existing standards. 04 C.O. CAFFREY: I am going off the record just a minute. 05 Ms. Leidigh. 06 (Discussion held off record.) 07 C.O. CAFFREY: I am going to allow the question. The 08 question was directed to Mr. Thabault? 09 MR. MINASIAN: Yes, it was. 10 C.O. CAFFREY: Please answer the question. 11 MR. MINASIAN: Do you remember it? 12 MR. THABAULT: I have actually heard two questions 13 right now. So, if you could, please, rephrase the one that 14 you would like to ask me. 15 MR. MINASIAN: I would probably like yours better. 16 C.O. CAFFREY: I hope it is the one I decided to rule 17 on. 18 MR. MINASIAN: As a biologist, did you in your 19 testimony indicate that there could be a circumstance in 20 your view in which biologically the Board should keep the 21 X2 standards in place, but remove the numerical standards in 22 both the western and eastern portions of Suisun Marsh until 23 a tidal numerical standard could be arrived at by this 24 Board? 25 MR. THABAULT: I have offered in my testimony that as 2328 01 one potential option that the Board could consider, yes. 02 MR. MINASIAN: As a biologist, is that a preferred 03 option on your part? 04 MR. THABAULT: I do not have a preferred alternative at 05 this time. 06 MR. MINASIAN: Could you describe to us what would be a 07 numerical standard that would not result in there being a 08 change in X2, which numerical standard would potentially 09 create or recreate the tidal marsh situation that you 10 believe should be established in Suisun Bay and the edges of 11 Suisun Marsh? 12 MR. CAMPBELL: Objection. That question, again, calls 13 for reevaluation of the existing numerical standards for the 14 Suisun Marsh. That is not an issue that is before the Board 15 in this proceeding. 16 C.O. CAFFREY: I think it is related to his written 17 testimony. Is it not, Ms. Leidigh? He's got passages in 18 there with discussion of X2. Our regulations allow for 19 cross-examination to go beyond the scope of direct testimony 20 if it is relevant and helpful in the case. I am going to 21 allow the question. Your objection is duly noted, Mr. 22 Campbell. Did you have more? 23 MR. CAMPBELL: Yes. If you're premising your ruling 24 upon portions of his direct testimony that go to an attack 25 on the existing Suisun Marsh salinity standard and/or 2329 01 characterizes it as an attack on the existing Suisun Marsh 02 salinity standard and a call for reevaluation of those 03 standards, I would submit to you that that is not a proper 04 basis for a ruling. If you characterize the testimony that 05 way, that testimony is irrelevant to this proceeding as 06 noticed and should be stricken. 07 C.O. CAFFREY: Relevancy is not treated in the Board's 08 hearing room as it is treated in a court of law. The Board 09 Members have wide discretion as to what weight evidence 10 should be given, and all the Board Members are skilled in 11 how to do that. So, I am going to allow the question and 12 the answer, for that matter. 13 Go ahead, sir. 14 MR. THABAULT: So as I understand the question, you're 15 asking how I would propose to use the X2 standard to a 16 establish a standard in the Marsh? 17 MR. MINASIAN: As a biologist, not as a policy maker, 18 can you suggest to the Board and its staff how a numerical 19 or other standard to create tidal marsh conditions would 20 interplay with the current X2 standards? Would you have to 21 change the X2 standards to meet the tidal marsh conditions 22 that you envision in the Suisun Bay and the edges of the 23 Marsh? 24 MR. THABAULT: I'm not recommending a change in the X2 25 standard. 2330 01 MR. MINASIAN: But as a biologist, would that not be 02 logical? 03 MR. THABAULT: Not necessarily. 04 MR. MINASIAN: Don't you need greater variability than 05 the X2 standard provides in order to have a tidal marsh 06 environment? 07 MR. THABAULT: The entire premise of the X2 standard 08 was based on an unimpaired hydrology and has established a 09 sliding scale and is based on the real hydrology at the 10 time. It has in its basis inherent variability and 11 salinity, both in time and space. 12 MR. MINASIAN: Describe to us the operations of the 13 Suisun Marsh tidal gates if the Board was to attempt to 14 establish a standard for tidal conditions within the Marsh, 15 tidal marsh conditions within the Suisun Marsh. 16 MR. THABAULT: Certainly, the Suisun Marsh salinity 17 control gates are effective in managing fresh water. We 18 would probably want to evaluate the operations of those 19 gates and minimize their operation to the maximum extent 20 practicable to minimize effects on the species. 21 MR. MINASIAN: So, as a biologist, you would envision 22 the Board would minimize the number of times the gates were 23 utilized to inject fresh water into the Marsh? 24 MR. THABAULT: That could certainly be one potential 25 option, yes. 2331 01 MR. MINASIAN: Is it a likely option, in your view? 02 MR. BRANDT: Objection. Calls for a conclusion of the 03 Board. 04 MR. MINASIAN: Thank you for your patience. 05 C.O. CAFFREY: Thank you, Mr. Minasian. 06 Mr. Nomellini. 07 ---oOo--- 08 CROSS-EXAMINATION OF DEPARTMENT OF INTERIOR 09 BY CENTRAL DELTA WATER AGENCY 10 BY MR. NOMELLINI 11 MR. NOMELLINI: For the record, Dante John Nomellini 12 for Central Delta parties. 13 Mr. Thabault, I have a number of questions for you. 14 Are any of the managed wetlands in the Suisun Marsh 15 habitat for any fish species? 16 MR. THABAULT: I would not classify any of the managed 17 wetlands as habitat for fish species, or appropriate habitat 18 for fish species. Put it that way. 19 MR. NOMELLINI: Are they habitat? My question, and I 20 will repeat it. Are any of the managed wetlands in the 21 Suisun Marsh habitat for any fish species? 22 MR. THABAULT: There are probably some species that do 23 quite well in managed wetlands, some small fish species, 24 yes. 25 MR. NOMELLINI: My question really is: Are there any 2332 01 fish species in the managed wetlands in Suisun Marsh? 02 MR. THABAULT: I would have to say that if you went out 03 there and sampled, you would find fish species in the 04 managed marshes, yes. 05 MR. NOMELLINI: What fish species would we find? 06 MR. THABAULT: You would probably find some Delta 07 smelt. You would probably find some Sacramento split tail. 08 You may find some species of salmon and steelhead. You 09 would certainly find certain species of goby. You would 10 find potentially long fin smelt. You may find some other 11 species such as stickle backs or other striped bass, striped 12 bass larvae eggs, any one of a number of species. 13 MR. NOMELLINI: Would we find any winter-run salmon? 14 MR. THABAULT: There is certainly a potential you could 15 find winter-run, yes. 16 MR. NOMELLINI: Is it your testimony that such managed 17 wetlands do not constitute habitat for any of the named fish 18 species? 19 MR. THABAULT: I would not classify any of the managed 20 wetlands as habitat for the species that I mentioned; that's 21 correct. 22 MR. NOMELLINI: Are any of the managed wetlands in 23 Suisun Marsh tidal marsh? 24 MR. THABAULT: There are some wetlands that are managed 25 in Suisun Marsh for pickle weed and for other tidal and add 2333 01 brackish marsh species, yes. 02 MR. NOMELLINI: So such would constitute tidal marsh; 03 is that correct? 04 MR. THABAULT: Yes. 05 MR. NOMELLINI: Is it your testimony that approval of 06 this proposed Amendment Three will require a change to the 07 1995 Water Quality Control Plan? 08 MR. BRANDT: Objection. Calls for a legal conclusion. 09 C.O. CAFFREY: If you have an answer to the question, 10 that you can answer to the best of your ability, sir? 11 MR. THABAULT: To the best of my ability, the mere 12 adoption of Amendment Three does not require necessarily a 13 change in the standard. 14 C.O. CAFFREY: Thank you, sir. 15 MR. NOMELLINI: To follow up on that, then, changing 16 the numerical objective at S-35 and S-97 to a monitoring 17 objective would, in your testimony, not constitute a change 18 to the 1995 Water Quality Control Plan; is that correct? 19 MR. BRANDT: Objection. Calls for legal conclusion. 20 MR. THABAULT: I do not have an opinion on that, Mr. 21 Chairman. 22 C.O. CAFFREY: There is the answer. 23 MR. NOMELLINI: Is it your testimony that triennial 24 means within five years? 25 MR. THABAULT: To the best of my knowledge, triennial 2334 01 means three years. 02 MR. NOMELLINI: Do you know when the 1995 Water Quality 03 Control Plan was adopted? 04 MR. THABAULT: I believe it was in May of '95. 05 MR. NOMELLINI: Was there a formal consultation with 06 the U.S. Fish and Wildlife Service with regard to the EPA 07 action pertaining to this Board's 1995 Water Quality Control 08 Plan? 09 MR. THABAULT: There was a request from the U.S. EPA 10 that adoption or removal of the federal standards and 11 adoption of a state standard would provide roughly 12 equivalent protection of the federal standards. 13 MR. NOMELLINI: With regard to the question I asked, 14 was there a formal consultation with U.S. Fish and Wildlife 15 Service with regard to that particular action? 16 MR. THABAULT: We had formal consultation on the 17 federal promulgation. When they wrote us a letter, that 18 constituted a reinitiation of that federal -- of that formal 19 consultation. 20 MR. NOMELLINI: So you're saying that that constituted 21 a formal consultation? 22 MR. THABAULT: That is correct. 23 MR. NOMELLINI: Was there a formal consultation with 24 the National Marine Fisheries Service with regard to the EPA 25 action with regard to this Board's 1995 Water Quality 2335 01 Control Plan? 02 MR. THABAULT: I am not exactly sure on all of the 03 processes that NMFS went through with EPA. 04 MR. NOMELLINI: How does Delta outflow relate to 05 meeting the 1995 Water Quality Control Plan objectives at 06 S-35 and 07 S-97? 08 MR. THABAULT: I couldn't speak exactly how the X2 09 standard quantitatively relates to managing S-35 and S-97. 10 MR. NOMELLINI: Okay. That is all I have. 11 Thank you. 12 C.O. CAFFREY: Thank you, Mr. Nomellini. 13 Any cross-examination or questions from the staff? 14 MR. HOWARD: None. 15 C.O. CAFFREY: Thank you. 16 Anything from the Board Members? 17 Mr. Pettit. Mr. Pettit is our Executive Director. He 18 sits here to help us from time to time. 19 Mr. Pettit. 20 ---oOo--- 21 CROSS-EXAMINATION OF DEPARTMENT OF INTERIOR 22 BY STAFF 23 MR. PETTIT: It is unusual that Ms. Leidigh and Ms. 24 Whitney and Mr. Howard haven't already asked anything that I 25 might think of. 2336 01 My question might precipitate another objection from 02 Mr. Campbell, but based on your recent ruling, Mr. Caffrey, 03 I am going to give it a shot, anyway. 04 C.O. CAFFREY: We seldom hear objections, for some 05 reasons, about the staff questions. 06 MR. PETTIT: I am just curious about the extent to 07 which there might be changes in the wind based on what Fish 08 and Wildlife Service might eventually come up. I was just 09 curious, Mr. Thabault, is Fish and Wildlife Service looking 10 for the kind of variation between wet and dry years 11 salinities that might have existed in preproject days? 12 MR. THABAULT: I don't know if we would go as exactly 13 to preproject. 14 MR. PETTIT: Your testimony, on Page 5, mentions a 15 couple of federally listed plants. It points out that they 16 need higher salinity that, I presume, might exist under the 17 present standard. Do you know if those particular plants 18 represent maybe an upper range of salinity that you might 19 ask for? 20 MR. THABAULT: They may. 21 MR. PETTIT: Is it -- let me ask you. Have you, or 22 maybe this will more appropriately directed to Mr. Keck, has 23 either of the Interior agencies done any analysis to see how 24 a revised salinity standard down there or a greater 25 variation in salinity standards might effect project 2337 01 operations to accommodate other beneficial uses? 02 MR. KECK: Reclamation has not, Mr. Pettit. 03 MR. PETTIT: Thank you. 04 That is all, Mr. Caffrey. 05 C.O. CAFFREY: Thank you, Mr. Pettit. 06 Mr. Brandt, do you have -- Board Members. We have 07 that. I was thrown by Mr. Pettit asking a question, which 08 was more contemplative. 09 Mr. Brandt, do you have any redirect? 10 MR. BRANDT: No redirect, Mr. Chairman. 11 C.O. CAFFREY: No redirect. All right. 12 Then there shall be no recross. 13 Do you wish to offer any exhibits at this time? 14 MR. BRANDT: Yes, I do wish to offer. I request the 15 Board accept into evidence Department of Interior Exhibits 6 16 and 7, including the attachments thereto. 17 C.O. CAFFREY: The staff agrees that that is how they 18 are tabulating. 19 Is there any objection from any of the other parties to 20 accepting evidentiary Exhibits 6 and 7 into the record? 21 Seeing and hearing no objection, those exhibits are 22 then accepted and that, I believe, completes your case in 23 chief, Mr. Brandt? 24 MR. BRANDT: Yes, Mr. Chairman. 25 C.O. CAFFREY: At this stage, then, we are at that 2338 01 point for rebuttal testimony. 02 Are there any parties in this phase, Phase III, that 03 wish to offer rebuttal testimony? 04 MS. CROTHERS: Can I take a moment to have a 05 conference? 06 C.O. CAFFREY: Go ahead. Let's take a couple of 07 minutes. Go off the record. 08 (Break taken.) 09 C.O. CAFFREY: We are back on the record. 10 Ms. Crothers. 11 MS. CROTHERS: We'd like to have a short rebuttal. Mr. 12 Steve Chappell would come up and make some statements. 13 C.O. CAFFREY: What other parties wish to offer 14 rebuttal? 15 No other parties. 16 All right. Did you say Mr. Chappell? 17 MS. CROTHERS: Yes. 18 C.O. CAFFREY: Please come forward, sir. 19 Just so everybody understands, we do have some 20 nonlawyers here, including myself. Rebuttal testimony is 21 something that would not have been in your direct testimony. 22 It is an opportunity to respond to something you heard in 23 somebody's else direct or cross-examination. 24 Please proceed. 25 ---oOo--- 2339 01 REBUTTAL TESTIMONY OF DEPARTMENT OF WATER RESOURCES 02 BY MS. CROTHERS 03 MS. CROTHERS: Mr. Chappel, do you recall Mr. Thabault 04 mentioning the SRCD habitat management plans? 05 MR. CHAPPELL: Yes, I do. 06 MS. CROTHERS: Would you please explain the habitat 07 management plans that were presented to this Board for this 08 hearing, how they were developed and for what purpose they 09 were developed. 10 MR. CHAPPELL: Yes, I will. Originally, as I testified 11 earlier today, the out-dated management plans were two to 12 three pages for each of the individual properties. The 13 Amendment Three of the SMPA funds is updating of the 14 management plans. In light of the activities that were 15 occurring, the Suisun Resource Conservation District and at 16 a request of the Service, through an informal consultation, 17 had requested that they could see a draft of the new 18 individual ownership adaptive management plans. So, the 19 Resource Conservation District took the initiative to draft 20 this document which I submitted as evidence. 21 And I would like to state that this is a first draft, 22 and the Service's concerns through formal consultation and 23 informal consultation is that this plan still has 24 possibility to be substantially modified to incorporate the 25 plans. 2340 01 The original management plan, basically, only had two 02 or three water management schedules. And these current 03 proposed plans have 12 to 15 management schedules, and they 04 also incorporate endangered species restrictions that were 05 not present 15 years ago on water diversions to the managed 06 wetlands. We tried to incorporate not only protection of 07 fish entrainment through diversions, but also, so there is 08 some latitude within this document, to modify it to address 09 the Service's concerns. 10 MS. CROTHERS: Mr. Chappell, do you believe, then, that 11 this draft management plan that we have submitted at this 12 point will be going through some revisions? 13 MR. CHAPPELL: That is correct. 14 MS. CROTHERS: Will there be opportunity for other 15 agencies to make comments on it before it is finalized? 16 MR. CHAPPELL: I believe Assembly Bill 1717 also says 17 that management plans must be certified by BCDC and 18 Department of Fish and Game before they are ever completed. 19 So, upon completion of the draft. 20 C.O. CAFFREY: Sir, are you citing existing law or a 21 bill? 22 MR. CHAPPELL: It is Assembly Bill that created the 23 Resource Conservation District. 24 C.O. CAFFREY: So, it is existing law? 25 MR. CHAPPELL: Yes. 2341 01 C.O. CAFFREY: You gave a bill number rather than a 02 chapter, not that you have to. That is standard practice, 03 but I just wanted to make sure it wasn't a bill moving 04 through now, that it is existing law. 05 MR. CHAPPELL: It is existing law that created the 06 Resource Conservation District. 07 MS. CROTHERS: Could you clarify what is in the plan 08 with respect to the pickle weed habitat scheduling? 09 MR. CHAPPELL: Yes. I believe what Mr. Thabault had 10 cited is a statement, the schedule, is not recommended 11 because the fine line between pickle weed and monoculture 12 and bare ground. And reviewing that at this point with this 13 citation, I think that it could have been more effectively 14 stated that this water management schedule has the 15 possibility of having a bare ground scenario to this 16 management. So, it is one of the concerns that needs to be 17 addressed if you are to manage that technique. 18 MS. CROTHERS: So you're saying that the management 19 plans are not suggesting that the landowners not provide for 20 pickle weed habitat? 21 MR. CHAPPELL: That is correct. 22 MS. CROTHERS: Thank you. That's all the questions I 23 have. 24 C.O. CAFFREY: Thank you, Ms. Crothers. 25 Will there be any cross-examination of this rebuttal 2342 01 witness? 02 Mr. Brandt. 03 Will there be others? 04 Mr. Nomellini. 05 Anybody else? 06 C.O. CAFFREY: Mr. Brandt and Mr. Nomellini. 07 MR. BRANDT: One quick question. 08 ---oOo--- 09 CROSS-EXAMINATION OF REBUTTAL TESTIMONY OF 10 DEPARTMENT OF WATER RESOURCES 11 BY DEPARTMENT OF INTERIOR 12 BY MR. BRANDT 13 MR. BRANDT: You are not asking the State Board to 14 bless or adopt, or anything along those things, these 15 habitat plans that you submitted? 16 MR. CHAPPELL: I believe at the request of the Service 17 we drafted this as an exhibit of a draft plan, and it is in 18 working. As I said in my testimony, we envision this as a 19 living document. 20 MR. BRANDT: Thank you. 21 C.O. CAFFREY: Thank you, sir. 22 Mr. Nomellini. 23 ---oOo--- 24 // 25 CROSS-EXAMINATION OF REBUTTAL TESTIMONY OF 2343 01 DEPARTMENT OF WATER RESOURCES 02 BY CENTRAL DELTA WATER AGENCY 03 BY MR. NOMELLINI 04 MR. NOMELLINI: Dante John Nomellini for Central Delta 05 parties. 06 I gather from your rebuttal testimony that you agree 07 that some of the managed wetlands in the Suisun Marsh 08 constitute tidal marsh? 09 MR. CHAPPELL: I don't believe I said that. 10 MR. CAMPBELL: Objection. I believe that that question 11 goes beyond the scope of his rebuttal testimony. He 12 testified as to that nature of his -- the ongoing efforts 13 regarding habitat management plans. He did not make any 14 statements regarding the types of marsh. 15 C.O. CAFFREY: I don't believe it was this gentleman's 16 testimony. 17 MR. NOMELLINI: Let me try to tie it together. 18 I understood tidal marsh involved the management for 19 pickle weed and I related to, is that not correct, that 20 pickle weed is not part of the tidal marsh? 21 MR. CHAPPELL: I think it would be correct to say that 22 pickle weed exists in managed wetlands as well as tidal 23 wetlands. It is a brackish plant which exists in both 24 habitat types. 25 MR. NOMELLINI: I want to know whether or not he agrees 2344 01 that the managed wetlands include tidal marsh. If you feel 02 that is not relevant -- 03 C.O. CAFFREY: I think that Mr. Campbell's objection is 04 appropriate. I think that is outside the scope of the 05 rebuttal. 06 MR. NOMELLINI: That is all I have. 07 Thank you. 08 C.O. CAFFREY: Thank you, Mr. Nomellini. 09 Any redirect, Ms. Crothers? 10 MS. CROTHERS: No. 11 C.O. CAFFREY: Then there is no recross. 12 Do you have rebuttal exhibits to -- is this exhibit 13 already in? 14 MS. CROTHERS: Yes. This has already been offered and 15 accepted as an exhibit. 16 C.O. CAFFREY: All right. 17 Thank you, sir. 18 MR. CHAPPELL: Thank you. 19 C.O. CAFFREY: I believe we are at the stage now where 20 we are very near the completion of the evidentiary Phase 21 III. We need to have some discussion about submittal of 22 closing arguments. 23 Our regulations generally call for written closing 24 arguments. We made an exception in our July 16th ruling as 25 it pertained to Phase II, so that we could move with some 2345 01 dispatch. So we did closing arguments there orally, 02 yesterday as a matter of fact. Time flies when you are 03 having fun. 04 Unless everybody just feels really strongly that they 05 want to get up this afternoon and offer closing arguments -- 06 do I see by a showing of hands, anybody who wants to do 07 that. 08 Let's set a schedule for written submission of closing 09 arguments. 10 We have been giving four weeks. Mr. O'Laughlin in 11 Phase II pointed out that sometimes the transcripts have 12 been coming in three weeks rather than two, and he thereby 13 asked if it would be possible to get a five-week deadline 14 instead of a four-week deadline for submission of closing 15 argument. 16 I think what I would like to do is let's set a 17 four-week deadline, and then if we run into some difficulty 18 or a little bit of log jam on getting the transcripts, we 19 can -- you can let us know, and we can add a week for you. 20 I believe, rule of thumb, is two weeks prep time after you 21 receive your copies of the transcript. 22 MR. NOMELLINI: I would ask that you just -- if you 23 want to set for five, set it for five. You want to set it 24 for four, set it for four. Because it will allow everybody 25 to plan accordingly rather than wait and see what happens. 2346 01 C.O. CAFFREY: I was trying to be accommodating. What 02 I said, maybe it wasn't clear. Let's set it for four, and 03 if it turns out that the transcripts are not forthcoming on 04 a timely basis we can extend that to five. 05 Is that difficult to understand or create a problem for 06 anybody? 07 MR. NOMELLINI: That is the way I understood it before 08 I made my comment. 09 C.O. CAFFREY: You want five. You have five. We are 10 trying to be technical here. Make it five. Everybody feels 11 more comfortable with five, let's do five. Let's do that. 12 Let's set a date now if somebody has a calendar. 13 September 9th. Close of business, Wednesday, September 14 9th for submittal of written closing argument for Phase 15 III. 16 Anything else on Phase III for the good of the cause? 17 Let me announce, then, that tomorrow morning in this 18 room, at 9:00 a.m. sharp, we will begin Phase IV. We will 19 start with Mr. Etheridge's proposal on how to proceed in 20 terms of some order and which I believe he has perhaps 21 worked out with some of the other parties. I am also told 22 by Mr. Etheridge that he may have a member of the 23 Legislature here to make a policy statement. When that 24 individual arrives, if they're not here at nine sharp, we 25 will accommodate members of the Legislature. 2347 01 See you all tomorrow morning at 9:00 in the morning. 02 Thank you very much. 03 (Hearing adjourned at 3:45 p.m.) 04 ---oOo--- 05 06 07 08 09 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2348 01 REPORTER'S CERTIFICATE 02 03 04 STATE OF CALIFORNIA ) 04 ) ss. 05 COUNTY OF SACRAMENTO ) 05 06 06 07 08 I, ESTHER F. WIATRE, certify that I was the 09 official Court Reporter for the proceedings named herein, 10 and that as such reporter, I reported in verbatim shorthand 11 writing those proceedings; 12 That I thereafter caused my shorthand writing to be 13 reduced to typewriting, and the pages numbered 2146 through 14 2347 herein constitute a complete, true and correct record 15 of the proceedings. 16 17 IN WITNESS WHEREOF, I have subscribed this certificate 18 at Sacramento, California, on this 13hth day of August 1998. 19 20 21 22 22 23 ______________________________ 23 ESTHER F. WIATRE 24 CSR NO. 1564 24 25