STATE WATER RESOURCES CONTROL BOARD PUBLIC HEARING 1998 BAY-DELTA WATER RIGHTS HEARING HELD AT THE BONDERSON BUILDING 901 P STREET SACRAMENTO, CALIFORNIA THURSDAY, AUGUST 6, 1998 9:00 A.M. Reported by: MARY GALLAGHER, CSR #10749 CAPITOL REPORTERS (916) 923-5447 1 APPEARANCES ---oOo--- 2 3 BOARD MEMBERS: 4 JOHN CAFFREY, CO-HEARING OFFICER JAMES STUBCHAER, CO-HEARING OFFICER 5 MARC DEL PIERO MARY JANE FORSTER 6 JOHN W. BROWN 7 STAFF MEMBERS: 8 THOMAS HOWARD - Supervising Engineer 9 VICTORIA A. WHITNEY - Senior Engineer 10 COUNSEL: 11 WILLIAM R. ATTWATER - Chief Counsel 12 WALTER PETTIT - Executive Director BARBARA LEIDIGH - Senior Staff Counsel 13 14 ---oOo--- 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 2350 1 REPRESENTATIVES 2 PRINCETON CODORA GLENN IRRIGATION DISTRICT, et al. 3 FROST, DRUP & ATLAS 4 134 West Sycamore STreet Willows, California 95988 5 BY: J. MARK ATLAS, ESQ. 6 JOINT WATER DISTRICTS: 7 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 8 Oroville, California 95965 BY: WILLIAM H. BABER, III, ESQ. 9 CALIFORNIA SPORTFISHING PROTECTION ALLIANCE: 10 ROBERT J. BAIOCCHI 11 P.O. Box 357 Quincy, California 95971 12 BELLA VISTA WATER DISTRICT: 13 BRUCE L. BELTON, ESQ. 14 2525 Park Marina Drive, Suite 102 Redding, California 96001 15 WESTLANDS WATER DISTRICT: 16 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 17 400 Capitol Mall, 27th Floor Sacramento, California 95814 18 BY: THOMAS W. BIRMINGHAM, ESQ. 19 THE BAY INSTITUTE OF SAN FRANCISCO: 20 GRAY BOBKER 55 Shaver Street, Suite 330 21 San Rafael, California 94901 22 CITY OF ANTIOCH, et al.: 23 FREDERICK BOLD, JR., ESQ. 1201 California Street, Suite 1303 24 San Francisco, California 94109 25 CAPITOL REPORTERS (916) 923-5447 2351 1 REPRESENTATIVES 2 LEAGUE OF WOMEN VOTERS: 3 ROBERTA BORGONOVO 4 2480 Union Street San Francisco, California 94123 5 UNITED STATES DEPARTMENT OF THE INTERIOR: 6 OFFICE OF THE SOLICITOR 7 2800 Cottage Way, Roon E1712 Sacramento, California 95825 8 BY: ALF W. BRANDT, ESQ. 9 CALIFORNIA URBAN WATER AGENCIES: 10 BYRON M. BUCK 455 Capitol Mall, Suite 705 11 Sacramento, California 95814 12 RANCHO MURIETA COMMUNITY SERVICES DISTRICT: 13 MCDONOUGH, HOLLAND & ALLEN 555 Capitol Mall, 9th Floor 14 Sacramento, California 95814 BY: VIRGINIA A. CAHILL, ESQ. 15 CALIFORNIA DEPARTMENT OF FISH AND GAME: 16 OFFICE OF THE ATTORNEY GENERAL 17 1300 I Street, Suite 1101 Sacramento, California 95814 18 BY: MATTHEW CAMPBELL, ESQ. 19 NATURAL RESOURCES DEFENSE COUNCIL: 20 HAMILTON CANDEE, ESQ. 71 Stevenson Street 21 San Francisco, California 94105 22 ARVIN-EDISON WATER STORAGE DISTRICT, et al.: 23 DOOLEY HERR & WILLIAMS 3500 West Mineral King Avenue, Suite C 24 Visalia, California 93191 BY: DANIEL M. DOOLEY, ESQ. 25 CAPITOL REPORTERS (916) 923-5447 2352 1 REPRESENTATIVES 2 SACRAMENTO MUNICIPAL UTILITY DISTRICT: 3 LESLIE A. DUNSWORTH, ESQ. 4 6201 S Street Sacramento, California 95817 5 SOUTH SAN JOAQUIN IRRIGATION DISTRICT, et al.: 6 BRAY, GEIGER, RUDQUIST & NUSS 7 311 East Main Street, 4th Floor Stockton, California 95202 8 BY: STEVEN P. EMRICK, ESQ. 9 EAST BAY MUNICIPAL UTILITIES DISTRICT: 10 EBMUD OFFICE OF GENERAL COUNSEL 375 Eleventh Street 11 Oakland, California 94623 BY: FRED ETHERIDGE, ESQ. 12 GOLDEN GATE AUDUBON SOCIETY: 13 ARTHUR FEINSTEIN 14 2530 San Pablo Avenue, Suite G Berkeley, California 94702 15 CONAWAY CONSERVANCY GROUP: 16 UREMOVIC & FELGER 17 P.O. Box 5654 Fresno, California 93755 18 BY: WARREN P. FELGER, ESQ. 19 THOMES CREEK WATER ASSOCIATION: 20 THOMES CREEK WATERSHED ASSOCIATION P.O. Box 2365 21 Flournoy, California 96029 BY: LOIS FLYNNE 22 COURT APPOINTED REPS OF WESTLANDS WD AREA 1, et al.: 23 LAW OFFICES OF SMILAND & KHACHIGIAN 24 601 West Fifth Street, Seventh Floor Los Angeles, California 90075 25 BY: CHRISTOPHER G. FOSTER, ESQ. CAPITOL REPORTERS (916) 923-5447 2353 1 REPRESENTATIVES 2 CITY AND COUNTY OF SAN FRANCISCO: 3 OFFICE OF THE CITY ATTORNEY 4 1390 Market Street, Sixth Floor San Francisco, California 94102 5 BY: DONN W. FURMAN, ESQ. 6 CAMP FAR WEST IRRIGATION DISTRICT, et al.: 7 DANIEL F. GALLERY, ESQ. 926 J Street, Suite 505 8 Sacramento, California 95814 9 BOSTON RANCH COMPANY, et al.: 10 J.B. BOSWELL COMPANY 101 West Walnut Street 11 Pasadena, California 91103 BY: EDWARD G. GIERMANN 12 SAN JOAQUIN RIVER GROUP AUTHORITY, et al.: 13 GRIFFIN, MASUDA & GODWIN 14 517 East Olive Street Turlock, California 95381 15 BY: ARTHUR F. GODWIN, ESQ. 16 NORTHERN CALIFORNIA WATER ASSOCIATION: 17 RICHARD GOLB 455 Capitol Mall, Suite 335 18 Sacramento, California 95814 19 PLACER COUNTY WATER AGENCY, et al.: 20 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 400 Capitol Mall, 27th Floor 21 Sacramento, California 95814 BY: JANET GOLDSMITH, ESQ. 22 ENVIRONMENTAL DEFENSE FUND: 23 THOMAS J. GRAFF, ESQ. 24 5655 College Avenue, Suite 304 Oakland, California 94618 25 CAPITOL REPORTERS (916) 923-5447 2354 1 REPRESENTATIVES 2 CALAVERAS COUNTY WATER DISTRICT: 3 SIMON GRANVILLE 4 P.O. Box 846 San Andreas, California 95249 5 CHOWCHILLA WATER DISTRICT, et al.: 6 GREEN, GREEN & RIGBY 7 P.O. Box 1019 Madera, California 93639 8 BY: DENSLOW GREEN, ESQ. 9 CALIFORNIA FARM BUREAU FEDERATION: 10 DAVID J. GUY, ESQ. 2300 River Plaza Drive 11 Sacramento, California 95833 12 SANTA CLARA VALLEY WATER DISTRICT: 13 MORRISON & FORESTER 755 Page Mill Road 14 Palo Alto, California 94303 BY: KEVIN T. HAROFF, ESQ. 15 CITY OF SHASTA LAKE: 16 ALAN N. HARVEY 17 P.O. Box 777 Shasta Lake, California 96019 18 COUNTY OF STANISLAUS: 19 MICHAEL G. HEATON, ESQ. 20 926 J Street Sacramento, California 95814 21 GORRILL LAND COMPANY: 22 GORRILL LAND COMPANY 23 P.O. Box 427 Durham, California 95938 24 BY: DON HEFFREN 25 CAPITOL REPORTERS (916) 923-5447 2355 1 REPRESENTATIVES 2 SOUTH DELTA WATER AGENCY: 3 JOHN HERRICK, ESQ. 4 3031 West March Lane, Suite 332 East Stockton, California 95267 5 COUNTY OF GLENN: 6 NORMAN Y. HERRING 7 525 West Sycamore Street Willows, California 95988 8 REGIONAL COUNCIL OF RURAL COUNTIES: 9 MICHAEL B. JACKSON 10 1020 Twelfth Street, Suite 400 Sacramento, California 95814 11 DEER CREEK WATERSHED CONSERVANCY: 12 JULIE KELLY 13 P.O. Box 307 Vina, California 96092 14 DELTA TRIBUTARY AGENCIES COMMITTEE: 15 MODESTO IRRIGATION DISTRICT 16 P.O. Box 4060 Modesto, California 95352 17 BY: BILL KETSCHER 18 SAVE THE SAN FRANCISCO BAY ASSOCIATION: 19 SAVE THE BAY 1736 Franklin Street 20 Oakland, California 94612 BY: CYNTHIA L. KOEHLER, ESQ. 21 BATTLE CREEK WATERSHED LANDOWNERS: 22 BATTLE CREEK WATERSHED CONSERVANCY 23 P.O. Box 606 Manton, California 96059 24 25 CAPITOL REPORTERS (916) 923-5447 2356 1 REPRESENTATIVES 2 BUTTE SINK WATERFOWL ASSOCIATION, et al.: 3 MARTHA H. LENNIHAN, ESQ. 4 455 Capitol Mall, Suite 300 Sacramento, California 95814 5 CITY OF YUBA CITY: 6 WILLIAM P. LEWIS 7 1201 Civic Center Drive Yuba City, California 95993 8 BROWNS VALLEY IRRIGTAION DISTRICT, et al.: 9 BARTKIEWICZ, KRONICK & SHANAHAN 10 1011 22nd Street, Suite 100 Sacramento, California 95816 11 BY: ALAN B. LILLY, ESQ. 12 CONTRA COSTA WATER DISTRICT: 13 BOLD, POLISNER, MADDOW, NELSON & JUDSON 500 Ygnacio Valley Road, Suite 325 14 Walnut Creek, California 94596 BY: ROBERT B. MADDOW, ESQ. 15 GRASSLAND WATER DISTRICT: 16 DON MARCIOCHI 17 22759 South Mercey Springs Road Los Banos, California 93635 18 SAN LUIS CANAL COMPANY: 19 FLANAGAN, MASON, ROBBINS & GNASS 20 3351 North M Street, Suite 100 Merced, California 95344 21 BY: MIICHAEL L. MASON, ESQ. 22 STONY CREEK BUSINESS AND LAND OWNERS COALITION: 23 R.W. MCCOMAS 4150 County Road K 24 Orland, California 95963 25 CAPITOL REPORTERS (916) 923-5447 2357 1 REPRESENTATIVES 2 TRI-DAM POWER AUTHORITY: 3 TUOLUMNE UTILITIES DISTRICT 4 P.O. Box 3728 Sonora, California 95730 5 BY: TIM MCCULLOUGH 6 DELANO-EARLIMART IRRIGATION DISTRICT, et al.: 7 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 8 Oroville, California 95965 BY: JEFFREY A. MEITH, ESQ. 9 HUMANE FARMING ASSOCIATION: 10 BRADLEY S. MILLER. 11 1550 California Street, Suite 6 San Francisco, California 94109 12 CORDUA IRRIGATION DISTRICT, et al.: 13 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 14 P.O. Box 1679 Oroville, California 95965 15 BY: PAUL R. MINASIAN, ESQ. 16 EL DORADO COUNTY WATER AGENCY: 17 DE CUIR & SOMACH 400 Capitol Mall, Suite 1900 18 Sacramento, California 95814 BY: DONALD B. MOONEY, ESQ. 19 GLENN COUNTY FARM BUREAU: 20 STEVE MORA 21 501 Walker Street Orland, California 95963 22 MODESTO IRRIGATION DISTRICT: 23 JOEL MOSKOWITZ 24 P.O. Box 4060 Modesto, California 95352 25 CAPITOL REPORTERS (916) 923-5447 2358 1 REPRESENTATIVES 2 PACIFIC GAS & ELECTRIC: 3 RICHARD H. MOSS, ESQ. 4 P.O. Box 7442 San Francisco, California 94120 5 CENTRAL DELTA WATER AGENCY, et al.: 6 NOMELLINI, GRILLI & MCDANIEL 7 P.O. Box 1461 Stockton, California 95201 8 BY: DANTE JOHN NOMELLINI, ESQ. and 9 DANTE JOHN NOMELLINI, JR., ESQ. 10 TULARE LAKE BASIN WATER STORAGE UNIT: 11 MICHAEL NORDSTROM 1100 Whitney Avenue 12 Corcoran, California 93212 13 AKIN RANCH, et al.: 14 DOWNEY, BRAND, SEYMOUR & ROHWER 555 Capitol Mall, 10th Floor 15 Sacramento, California 95814 BY: KEVIN M. O'BRIEN, ESQ. 16 OAKDALE IRRIGATION DISTRICT: 17 O'LAUGHLIN & PARIS 18 870 Manzanita Court, Suite B Chico, California 95926 19 BY: TIM O'LAUGHLIN, ESQ. 20 SIERRA CLUB: 21 JENNA OLSEN 85 Second Street, 2nd Floor 22 San Francisco, California 94105 23 YOLO COUNTY BOARD OF SUPERVISORS: 24 LYNNEL POLLOCK 625 Court Street 25 Woodland, California 95695 CAPITOL REPORTERS (916) 923-5447 2359 1 REPRESENTATIVES 2 PATRICK PORGENS & ASSOCIATES: 3 PATRICK PORGENS 4 P.O. Box 60940 Sacramento, California 95860 5 BROADVIEW WATER DISTRICT, et al.: 6 DIANE RATHMANN 7 P.O. Box 156 Dos Palos, California 93620 8 FRIENDS OF THE RIVER: 9 BETSY REIFSNIDER 10 128 J Street, 2nd Floor Sacramento, California 95814 11 MERCED IRRIGATION DISTRICT: 12 FLANAGAN, MASON, ROBBINS & GNASS 13 P.O. Box 2067 Merced, California 95344 14 BY: KENNETH M. ROBBINS, ESQ. 15 CENTRAL SAN JOAQUIN WATER CONSERVATION DISTRICT: 16 REID W. ROBERTS, ESQ. 311 East Main Street, Suite 202 17 Stockton, California 95202 18 METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA: 19 JAMES F. ROBERTS P.O. Box 54153 20 Los Angeles, California 90054 21 SACRAMENTO AREA WATER FORUM: 22 CITY OF SACRAMENTO 980 9th Street, 10th Floor 23 Sacramento, California 95814 BY: JOSEPH ROBINSON, ESQ. 24 25 CAPITOL REPORTERS (916) 923-5447 2360 1 REPRESENTATIVES 2 TUOLUMNE RIVER PRESERVATION TRUST: 3 NATURAL HERITAGE INSTITUTE 4 114 Sansome Street, Suite 1200 San Francisco, California 94194 5 BY: RICHARD ROOS-COLLINS, ESQ. 6 CALIFORNIA DEPARTMENT OF WATER RESOURCES: 7 DAVID A. SANDINO, ESQ. P.O. Box 942836 8 Sacramento, California 94236 9 FRIANT WATER USERS AUTHORITY: 10 GARY W. SAWYERS, ESQ. 575 East Alluvial, Suite 101 11 Fresno, California 93720 12 KERN COUNTY WATER AGENCY: 13 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 400 Captiol Mall, 27th Floor 14 Sacramento, California 95814 BY: CLIFFORD W. SCHULZ, ESQ. 15 SAN JOAQUIN RIVER EXCHANGE CONTRACTORS: 16 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 17 P.O. Box 1679 Oroville, California 95965 18 BY: MICHAEL V. SEXTON, ESQ. 19 SAN JOAQUIN COUNTY: 20 NEUMILLER & BEARDSLEE P.O. Box 20 21 Stockton, California 95203 BY: THOMAS J. SHEPHARD, SR., ESQ. 22 CITY OF STOCKTON: 23 DE CUIR & SOMACH 24 400 Capitol Mall, Suite 1900 Sacramento, California 95814 25 BY: PAUL S. SIMMONS, ESQ. CAPITOL REPORTERS (916) 923-5447 2361 1 REPRESENTATIVES 2 ORLAND UNIT WATER USERS' ASSOCIATION: 3 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 4 P.O. Box 1679 Oroville, California 95965 5 BY: M. ANTHONY SOARES, ESQ. 6 GLENN-COLUSA IRRIGATION DISTRICT: 7 DE CUIR & SOMACH 400 Capitol Mall, Suite 1900 8 Sacramento, California 95814 BY: STUART L. SOMACH, ESQ. 9 NORTH SAN JOAQUIN WATER CONSERVATION DISTRICT: 10 JAMES F. SORENSEN CONSULTING CIVIL ENGINEER, INC.: 11 209 South Locust Street Visalia, California 93279 12 BY: JAMES F. SORENSEN 13 PARADISE IRRIGATION DISTRICT: 14 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 15 Oroville, California 95965 BY: WILLIAM H. SPRUANCE, ESQ. 16 COUNTY OF COLUSA: 17 DONALD F. STANTON, ESQ. 18 1213 Market Street Colusa, California 95932 19 COUNTY OF TRINITY: 20 COUNTY OF TRINITY - NATURAL RESOURCES 21 P.O. Box 156 Hayfork, California 96041 22 BY: TOM STOKELY 23 CITY OF REDDING: 24 JEFFERY J. SWANSON, ESQ. 2515 Park Marina Drive, Suite 102 25 Redding, California 96001 CAPITOL REPORTERS (916) 923-5447 2362 1 REPRESENTATIVES 2 TULARE IRRIGATION DISTRICT: 3 TEHEMA COUNTY RESOURCE CONSERVATION DISTRICT 4 2 Sutter Street, Suite D Red Bluff, California 96080 5 BY: ERNEST E. WHITE 6 STATE WATER CONTRACTORS: 7 BEST BEST & KREIGER P.O. Box 1028 8 Riverside, California 92502 BY: CHARLES H. WILLARD 9 COUTNY OF TEHEMA, et al.: 10 COUNTY OF TEHEMA BOARD OF SUPERVISORS 11 P.O. Box 250 Red Bluff, California 96080 12 BY: CHARLES H. WILLARD 13 MOUNTAIN COUNTIES WATER RESOURCES ASSOCIATION: 14 CHRISTOPHER D. WILLIAMS P.O. Box 667 15 San Andreas, California 95249 16 JACKSON VALLEY IRRIGATION DISTRICT: 17 HENRY WILLY 6755 Lake Amador Drive 18 Ione, California 95640 19 SOLANO COUNTY WATER AGENCY, et al.: 20 HERUM, CRABTREE, DYER, ZOLEZZI & TERPSTRA 2291 West March Lane, S.B. 100 21 Stockton, California 95207 BY: JEANNE M. ZOLEZZI, ESQ. 22 23 ---oOo--- 24 25 CAPITOL REPORTERS (916) 923-5447 2363 1 I N D E X 2 ---oOo--- 3 4 PAGE 5 OPENING OF HEARING 2367 6 AFTERNOON SESSION 2477 7 END OF PROCEEDINGS 2570 8 POLICY STATEMENTS: 9 SENATOR RICHARD RAINEY 2367 10 STATE WATER CONTRACTORS 2372 FEATHER RIVER DIVERTERS 2373 11 OPENING STATEMENTS: 12 CENTRAL DELTA PARTIES 2392 13 SAN JOAQUIN COUNTY 2396 14 YOLO COUNTY FLOOD CONTROL: 15 OPENING STATEMENT BY ALAN LILLY 2398 OPENING STATEMENT BY DAVID SANDINO 2402 16 DIRECT TESTIMONY: 17 FRANCIS BORCALLI 2404 18 DWIGHT RUSSELL 2417 19 CROSS-EXAMINATION: 20 CAMP FAR WEST IRRIGATION DISTRICT 2421 BY STAFF 2422 21 BY THE BOARD 2423 22 DIRECT TESTIMONY: 23 EAST BAY MUNICIPAL UTILITY DISTRICT 2428 24 ---oOo--- 25 CAPITOL REPORTERS (916) 923-5447 2364 1 INDEX (Cont'd.) 2 DIRECT TESTIMONY: 3 CALIFORNIA DEPARTMENT OF WATER RESOURCES 2497 4 CROSS-EXAMINATION: 5 WESTLANDS WATER DISTRICT, et al. 2501 6 7 ---oOo--- 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 2365 1 THURSDAY, AUGUST 6, 1998, 9:00 A.M. 2 SACRAMENTO, CALIFORNIA 3 ---oOo--- 4 C.O. CAFFREY: Good morning and welcome back. This 5 is the continuation of the Bay-Delta Water Rights 6 proceedings, we are on the record. This morning we'll 7 commence with Phase IV. And I'm going to surprise 8 Mr. Stubchaer and ask him to read the definition of 9 Phase IV into the record. The actual description of Phase 10 IV as it appears in the hearing notice is: 11 C.O. STUBCHAER: "Responsibilities of the parties who 12 are jointly proposing agreements in the Sacramento, 13 Mokelumne, Calaveras and Consumnes River watersheds the 14 Department of Water Resources, U.S. Bureau of Reclamation 15 to meet the flow dependent objectives." 16 C.O. CAFFREY: Thank you, Mr. Stubchaer. To begin 17 the proceedings I'm going to ask if there are any 18 representatives of parties in the audience that plan to 19 appear in Phase IV that have not formally introduced 20 themselves into the record at any time during this 21 proceeding all the way back to the beginning of Phase I. 22 Any such representatives, either counsel or otherwise in 23 the room? All right. Thank you very much. 24 First on our agenda this morning we're honored to 25 have a member of the State Senate, Senator Rainey who CAPITOL REPORTERS (916) 923-5447 2366 1 wishes to make a policy statement. Good morning, Senator, 2 and thank you for taking time to join us this morning. 3 SENATOR RAINEY: Thank you, Mr. Chairman, and I can 4 see much unlike the Legislature, you're starting on time. 5 That's very good, because we're supposed to be in session 6 right now and I need to get back over. 7 C.O. CAFFREY: Thank you, sir. 8 ---oOo--- 9 POLICY STATEMENT 10 BY SENATOR RICHARD RAINEY 11 SENATOR RAINEY: Good morning, Chairman Caffrey and 12 Members of the Board. For the record I'm Senator Richard 13 Rainey and I represent the Seventh State Senatorial 14 District. I'm here this morning to indicate for the record 15 that I support the Memorandum of Understanding among the 16 urban and agricultural exporters and East Bay MUD with 17 respect to East Bay MUD's Bay-Delta obligations for the 18 lower Mokelumne River. 19 As you know, East Bay MUD supplies drinking water 20 to approximately 1.2 million residential and business 21 customers in portions of Contra Costa and Alameda County. 22 East Bay MUD's principal source of water supply is the 23 Mokelumne River. East Bay MUD, California Department of 24 Fish and Game and U.S. Fish and Wildlife Service have 25 jointly developed and agreed upon a comprehensive set of CAPITOL REPORTERS (916) 923-5447 2367 1 fishery flow that set an appropriate balance between 2 environmental and resource protection along the lower 3 Mokelumne River and the water supply needs of East Bay 4 residents. 5 The water flow components of that joint agreement 6 are largely incorporated into the MOU among the urban and 7 agricultural exporters and East Bay MUD adopted in December 8 of 1996. That, I understand, will be before this Board in 9 Phase IV of the Bay-Delta Water Rights proceedings. The 10 settlement represents a strong commitment to enhance the 11 fishery resources of the lower Mokelumne River by 12 increasing the water flow down the river during all 13 types -- during all water year types. 14 The settlement also provides additional water into 15 the Delta. Flows agreed to under the settlement are the 16 proposed required minimum releases of water for fishery 17 purposes. These minimum releases of water would be in 18 addition to water East Bay MUD is already required to 19 release from the Camanche Reservoir for other downstream 20 users. So there would be frequently more water in the 21 river above the fishery release amounts. 22 East Bay MUD's proposed settlement flows are 23 substantial increases over the quantity of water now 24 required to be released for the fisheries. You'll be 25 receiving testimony shortly from East Bay MUD's witnesses CAPITOL REPORTERS (916) 923-5447 2368 1 who will provide more detail concerning the specifics of 2 this settlement agreement. 3 In addition to the contribution that East Bay MUD 4 is making to the Delta to increase water flow down the 5 Mokelumne River, East Bay MUD also works closely with local 6 community stakeholders and shares fishery information with 7 the state and federal resource agencies through the 8 Mokelumne River technical advisory committee, which was 9 established to provide coordination on Mokelumne River 10 water flow and fishery issues. 11 This agreement represents the type of settlement 12 we should be encouraging in California for resolving 13 complex resource issues. As you know well, protracted and 14 adversarial debates over resource management and 15 environmental protections often yields little benefit for 16 the public or the resources. We should instead encourage 17 parties to do hard work of negotiating, discussing and 18 arriving at a settlement agreement in a manner that can 19 result in multiple benefits for communities and the 20 environment. 21 In summary, I'd like to reiterate that I am 22 supportive of the settlement that East Bay MUD and the 23 urban and agricultural exporters have reached. I believe 24 that the settlement will provide multiple benefits to the 25 public and the environment and the increased settlement CAPITOL REPORTERS (916) 923-5447 2369 1 flows released down the Mokelumne River represent East Bay 2 MUD's fair share with respect to the Bay-Delta obligations. 3 I want to thank you very much for allowing me to give this 4 statement this morning and also for allowing me to go on 5 first. Thank you. 6 C.O. CAFFREY: Thank you very much, Senator Rainey, 7 for taking the time from your busy schedule and addressing 8 the Board on this very important matter. We do appreciate 9 it very much, sir. Thank you. 10 SENATOR RAINEY: Thank you. 11 C.O. CAFFREY: Are there other parties wishing to 12 make policy statements? All right. We have Mr. Garner, 13 Mr. Minasian. And who was the other hand? Sir, you are? 14 MR. SHEPHARD: Tom Shephard. 15 C.O. CAFFREY: Oh, Mr. Shephard. Before you speak, 16 sir, let me ask of these three gentlemen, are any of these 17 individuals presenting a case in chief in this phase? 18 MR. GARNER: No, we are not. 19 C.O. CAFFREY: Nobody is. Okay. And do any of you 20 plan to make an opening statement as a noncase in chief 21 party? All right, then, policy statements are appropriate. 22 I'm sorry, Mr. Nomellini, you have a question? 23 MR. NOMELLINI: I would like to make an opening 24 statement, but we're not going to present a case in chief. 25 C.O. CAFFREY: That's fine. Thank you, sir. And CAPITOL REPORTERS (916) 923-5447 2370 1 we'll get to that after we do the policy statements. 2 Mr. Shephard, you had a question? 3 MR. SHEPHARD: Yes. I'm not really Tom Shephard I'm 4 Stuart Adams from the North San Joaquin Water Conservation 5 District. He cannot be here today and on -- on his behalf 6 I would like to ask that the president of the North San 7 Joaquin Board be allowed to make an opening statement on 8 the 18th. He could not be here today. 9 C.O. CAFFREY: For Phase IV? 10 MR. SHEPHARD: For Phase IV. 11 C.O. CAFFREY: What's the date today, the 6th. 12 MR. SHEPHARD: I believe that's your next hearing 13 date. 14 MS. LEIDIGH: Yes, it is. 15 C.O. CAFFREY: With this many cases in chief, it's 16 doubtful we would complete Phase IV today. So I think 17 that's perfectly acceptable, predictable and otherwise. 18 MR. SHEPHARD: Thank you. 19 C.O. CAFFREY: Thank you, Mr. Shephard. Of course 20 miracles do happen. One happened yesterday, we got through 21 a phase all in one day, probably not likely with this one. 22 All right. Then, let's see, we had Mr. Garner I 23 believe first and then we'll go to Mr. Minasian and 24 Mr. Shephard. Please, be mindful, ladies and gentlemen, 25 that there is a five-minute limit on policy statements. CAPITOL REPORTERS (916) 923-5447 2371 1 Good morning, Mr. Garner. 2 ---oOo--- 3 POLICY STATEMENT OF STATE WATER CONTRACTORS 4 BY ERIC GARNER 5 MR. GARNER: Good morning, Mr. Caffrey. Eric Garner 6 on behalf of the State Water Contractors. I wanted to 7 speak specifically this morning to the Cache Creek 8 settlement agreement. The State Water Contractors support 9 the Cache Creek settlement agreement and are signatories to 10 that agreement. The State Water Contractors believe that 11 because of the hydraulic nature of Cache Creek, the Yolo 12 County Flood Control and Water Conservation District does 13 not have an obligation to provide water to meet the 14 Bay-Delta water quality standards. 15 As the State Board and its staff are well-aware, 16 the number of parties that are hydrologically connected to 17 the Bay-Delta and thus who may have an obligation to 18 contribute water to meet the standards is quite large. The 19 State Board would be well served to approve this settlement 20 agreement so that it can more efficiently focus on the 21 parties that do have an obligation to provide water to 22 meet Bay-Delta water quality standards. Thank you very 23 much. 24 C.O. CAFFREY: Thank you, Mr. Garner. Mr. Minasian. 25 // CAPITOL REPORTERS (916) 923-5447 2372 1 POLICY STATEMENT OF FEATHER RIVER DIVERTERS 2 BY PAUL R. MINASIAN 3 MR. MINASIAN: This policy statement has been 4 supplied to you in writing and is being submitted on behalf 5 of the Biggs-West Gridley Water District, the Butte Water 6 District, the Richvale Irrigation District, the Sutter 7 Extension Water District, the Western Canal Water District, 8 Plumas Mutual Water Company, the Tudor Mutual Water Company 9 and the Garden Highway Mutual Water Company. And if I may 10 I'll refer to that as the Feather River Diverters, or the 11 Feather River contractors. 12 C.O. CAFFREY: I have a comment, otherwise known in 13 some circles as the "Feather River Diverters." 14 MR. MINASIAN: Yes. Thank you. 15 C.O. CAFFREY: Thank you. 16 MR. MINASIAN: This opening statement is necessary, 17 because we do not fit into exactly the category of your 18 notice, but we think it's important that the Board be aware 19 of the nature of the agreements which are entered into. 20 And I'll try to paraphrase the letter to avoid duplicating 21 the written material. Attached to the letter are five 22 exhibits in addition to the opening statement. And those 23 are the diversion agreements. 24 The agreements are not being submitted as 25 settlement agreements, because they do not meet totally the CAPITOL REPORTERS (916) 923-5447 2373 1 standard of your notice, but they are being submitted 2 because they are important for the Board to recognize and 3 because they are essentially long-term perpetual and 4 predating the current proceedings. And they settle issues 5 between the DWR and the contracting parties on a much 6 broader scale than the Bay-Delta process. 7 The agreements provide for diversion of water 8 under all circumstances. And they are, in essence, 9 exchange agreements under which the parties who held prior 10 water rights agreed with DWR to accommodate certain 11 operations of the State Water Project, which are essential 12 for the State Water Project to meet its commitments to you 13 under the Accord. 14 They establish the operational criteria. They 15 govern deliveries to the district after construction of the 16 Orville complex. And they resolve, potentially, 17 conflicting claims between the parties including PG&E, the 18 predecessor of the Western Canal Water District. 19 C.O. CAFFREY: Mr. Minasian, I apologize profusely 20 for interrupting your role, so to speak, but we have some 21 lack of clarity up here. I have the Feather River 22 Diverters down as presenting a case in chief. Are we wrong 23 on that? 24 MR. MINASIAN: Yes, you are. These agreements are 25 not being submitted to you for your approval. We are CAPITOL REPORTERS (916) 923-5447 2374 1 asking that the letter, the policy statement, and the 2 contracts which are referred to and attached to the letter 3 be accepted into the record. 4 C.O. CAFFREY: So you're -- in effect, you're 5 attaching to your written policy statement -- 6 MR. MINASIAN: Yes. 7 C.O. CAFFREY: -- the agreements such as they are at 8 the moment to be part of the general record and the 9 evidentiary record, per se; is that correct? 10 MR. MINASIAN: Yes, because there will be no 11 cross-examination regarding these particular contracts at 12 this stage. And this is necessary because as you can tell, 13 the exhibits don't fit exactly into the category of 14 settlement agreements which are subject to 15 cross-examination and approval, or disapproval by your 16 Board. 17 C.O. CAFFREY: All right. Does that mean that 18 they're still in some stage of negotiation and you may 19 bring them back at a later date? 20 MR. MINASIAN: I have no way of knowing whether or 21 not there will be some subsequent agreement. And I don't 22 want to put Mr. Sandino in a position where he needs to 23 come up and breach the agreements, or do something that 24 would be argumentative. 25 What we're going to do is we're going to deposit CAPITOL REPORTERS (916) 923-5447 2375 1 them with you. We're going to tell you about them. And 2 we're going to let you be aware of how this system works up 3 on the Feather River before you make any big mistakes. 4 That's effectively our purpose. 5 C.O. CAFFREY: This Board I don't believe has made a 6 big mistake in at least a week. 7 MR. MINASIAN: I'm hoping that I won't witness one. 8 C.O. CAFFREY: Excuse me, I believe Mr. Birmingham -- 9 this is somewhat unusual in the middle of a policy 10 statement to be is interrupting you but I think it's an 11 important procedural matter. 12 MR. MINASIAN: I think so, too. 13 C.O. CAFFREY: Mr. Birmingham, please. 14 MR. BIRMINGHAM: Thank you. I'm not sure what 15 Mr. Minasian is suggesting. Is he proposing that the Board 16 receive these agreements, consider them as evidence and, 17 then, use the agreements in some fashion to excuse the 18 water users that he's identified from any further 19 obligation to meet the water quality standards contained in 20 the 1995 Water Quality Control Plan? 21 MR. MINASIAN: I believe that will be the eventual 22 outcome of these proceedings, but as you are well-aware, as 23 the Board is well-aware I just used the phase and I will 24 repeat it. We are not asking for the Board's approval of 25 these agreements. And, therefore, there is no action CAPITOL REPORTERS (916) 923-5447 2376 1 requested of the Board at this point in time. 2 C.O. CAFFREY: Actually, as a legal matter, and let 3 me -- please, correct me if I'm wrong, Ms. Leidigh, but if 4 you are presenting these, just so that everyone 5 understands, and I want you to jump in to correct me 6 immediately if I'm wrong, but I believe that your 7 submission of these agreements in whatever stage of 8 development they may be in this capacity does not put them 9 into evidence and does not, therefore, allow the Board to 10 consider them in any way, shape, or form in a decision. 11 Is that correct, Ms. Leidigh? 12 MS. LEIDIGH: So far as everything I can tell that 13 he's doing right now, I don't see them being offered in 14 evidence as being part of a policy statement. They're just 15 attached. If he were to offer them in evidence I suspect 16 that some other parties would want to either put on 17 responsive cases, in other words, rebuttal, or 18 cross-examine witnesses who could explain these. Because 19 if they were put in evidence, and the suggestion is they 20 would be, you used to either support a finding, or to make 21 a finding by the Board. 22 C.O. CAFFREY: That's why I wanted to be very clear 23 that these agreements, if they are offered in this 24 capacity, are not subject to any decision, nor will they be 25 considered by the Board. And I'm hoping I'm using the CAPITOL REPORTERS (916) 923-5447 2377 1 right terminology to put the attorneys's for the other 2 parties mind somewhat at rest, maybe I'm not. 3 Mr. Birmingham is ruminating. 4 MR. BIRMINGHAM: I am because I wonder if the 5 agreements, in whatever stage of development they are 6 presently in, are being submitted in the manner that 7 Mr. Minasian and Ms. Leidigh have described I wonder for 8 what purpose they're going to be submitted to the Board. 9 If they can't be considered as evidence, or for any other 10 purpose, I don't know why they would even need to be 11 submitted. The concern that I have is that Mr. Minasian's 12 clients not be left with the impression that by having 13 submitted these documents they somehow are going to be 14 excused from participating in further phases of this 15 proceeding, in particular, Phase VIII. 16 C.O. CAFFREY: Well, I was going to say unless these 17 agreements are entered into the record as evidence and are 18 subjected to cross-examination, they will not be considered 19 by the Board in any way. Furthermore, I will go so far to 20 say, but I will look to my fellow Board Members to make 21 sure that there's no objection, I would say that if these 22 were developed to the stage where you wanted to bring them 23 into evidence, and we had closed Phase IV, but we are still 24 underway in some other phase of the proceedings, we would 25 certainly want to hear them. CAPITOL REPORTERS (916) 923-5447 2378 1 We would properly have to notice them and would 2 have to give everybody an opportunity to hear what they 3 are, but that would be a lot less desirable. I mean time 4 is of the essence. And what I'm trying to express here is 5 the Board has always encouraged that people get together 6 and try to agree with regard to water rights to minimize 7 the adversarial necessity in this room, but at some point 8 in time there's a reasonable cutoff date and I can't tell 9 you when that is. I mean we could probably have a hundred 10 different answers here today. 11 MS. LEIDIGH: Phase VIII. 12 C.O. CAFFREY: Phase VIII, of course, would be the 13 drop dead, if we even have a Phase VIII. It's conceivable 14 that we may or may not. We don't know that yet. We're 15 still forging new ground here. 16 MR. BIRMINGHAM: Mr. Chairman, I would like to 17 observe that we are still -- "we" being the export 18 interests, the Bureau of Reclamation and the Department of 19 Water Resources are still attempting to negotiate 20 agreements with other water users in the Sacramento Valley, 21 for instance, Yuba County. And we anticipate we will be 22 back before the Board with other agreements in what may be 23 characterized as maybe a Phase IV-A, 24 C.O. CAFFREY: I was thinking of IV-A myself, just 25 the fact I remarked to Mr. Stubchaer when we walked in CAPITOL REPORTERS (916) 923-5447 2379 1 here, because it is a matter of record that the Yuba 2 negotiators asked to not be a part of the Phase IV because 3 they still have a work in-progress. So your comments are 4 well-taken. I'm going to go off the record here for a 5 couple minutes and have a consultation with Ms. Leidigh and 6 Mr. Stubchaer. Please, bear with us. 7 (Off the record from 9:18 a.m. to 9:21 a.m.) 8 C.O. CAFFREY: We're back on the record, thank you. 9 Mr. Stubchaer, I believe, has a question. 10 C.O. STUBCHAER: Mr. Chairman, I was just wondering 11 if Mr. Sandino would care to comment on this issue? 12 MR. SANDINO: Thank you, Mr. Stubchaer, we're okay 13 with Mr. Minasian attaching these as part of his policy 14 statement as long as they're not presented, as he said, 15 they are not to be presented as a settlement and not made 16 part of the record. We acknowledge the contracts exist. 17 The Department followed the contracts, but we want to make 18 it clear that they are not being offered as a settlement, 19 and I think he said that. So thank you. 20 C.O. CAFFREY: Thank you. 21 C.O. STUBCHAER: Okay. 22 C.O. CAFFREY: Then, I'm going to rule to allow 23 Mr. Minasian to attach these as part of his policy 24 statement, but I'm also going to state and rule that this 25 does not exonerate those he represents from any further CAPITOL REPORTERS (916) 923-5447 2380 1 participation in these proceedings; namely, perhaps, most 2 importantly a Phase VIII if there is one. The Board can 3 call you back for any number of purposes. You are subject 4 to the authority of the Board throughout the duration of 5 the hearing process. 6 MR. MINASIAN: Thank you, Mr. Chairman. And we 7 accept that condition and recognized that we will be 8 long-term players in this process to illuminate issues for 9 the Board. 10 C.O. CAFFREY: And I also, again, want to point out 11 to the parties that were in objection that this is not 12 evidence. It is only a part of the general record. All 13 right. Thank you, sir. This was not on your time. You 14 still have three minutes. 15 MR. MINASIAN: I will try not to consume it all. 16 Well, a shorthand characterization of the agreements is 17 difficult, and as the Board recognizes these were entered 18 into the '60s, and in the case of Western Canal in the 19 '80s, they provided a comprehensive settlement of the 20 operational characteristics of the water rights. And they 21 are effectively agreements by the Department to deliver 22 water in our view in certain quantities. 23 Most important thing for you to understand in 24 terms of your process and considering other settlement 25 agreements, considering issues before you is that the CAPITOL REPORTERS (916) 923-5447 2381 1 Feather River Diverters have already agreed and provided 2 for major curtailments and diversions in dry water years. 3 Those curtailments exceed 368,000 acre-feet in dry years, 4 in any two out of seven. 5 And in addition, they provide for any water that 6 is not utilized as a result of conservation, which we are 7 required to do, and reasonable and beneficial use, which 8 we're required to do, automatically returns to the 9 Department. The agreements also provide for service area 10 limitations. That is the areas may not be expanded in 11 terms of service. And they provide for a resolution of 12 issues relating to diversion amounts during certain periods 13 of time. 14 While the agreement is not submitted for approval 15 by the State Water Resources Control Board, we believe it's 16 important that the Board bear in mind the historical nature 17 of the cooperative relationship that's been developed and 18 is incorporated within these exhibits to our policy 19 statement. In large part the State Water Project would not 20 exist but for the faith placed in promises by the State of 21 California acting through the Department of Water 22 Resources. In large respect, the protests to the Lake 23 Orville water rights were dismissed on the basis of the 24 consummation of these agreements and the assurances that 25 were given. CAPITOL REPORTERS (916) 923-5447 2382 1 The Bay-Delta is an important purpose. And it is 2 accommodated, in our view, by these historic relationships. 3 The most important issue we'd like you to carry away from 4 this is that these parties have already provided for up to 5 a 50-percent curtailment of their water rights, an amount, 6 which we believe in Phase VIII will show is hydrologically 7 in excess of the amounts of water that they would have had 8 to contribute in the months of April, May, June. 9 The use of sobriquets such as "equitable 10 allocation," "share the pain," ignores in a large respect 11 the destruction and disruption that will arise if 12 agreements of this nature are not recognized and respected 13 in this process. And we look forward to working with you 14 through the various phases of the process to provide for 15 that recognition and respect. Thank you. 16 C.O. CAFFREY: All right. Thank you, Mr. Minasian. 17 Mr. Shephard, by whatever name you are here today. 18 MR. SHEPHARD: Nothing further at this time. 19 C.O. CAFFREY: You were not going to make a 20 statement? 21 MR. SHEPHARD: Not a policy statement. 22 C.O. CAFFREY: Thank you, sir. All right. That 23 completes the policy statements specific to Phase IV. 24 Before we go to opening statements for parties not 25 presenting evidence, let me ask, I want to go over the list CAPITOL REPORTERS (916) 923-5447 2383 1 here to be sure we're up-to-date on who is and who is not 2 presenting cases in chief. 3 I'm going to read what I have here. And, then, if 4 I've missed anybody, please, raise your hand; or if I've 5 named somebody that does not want to present a case in 6 chief, please, raise your hand, also. And this is the 7 order we will generally take them in: 8 Yolo County Flood Control and Water Conservation 9 District, East Bay Municipal Utility District, Woodbridge 10 Irrigation District, Solano County Water Agency, Department 11 of the Interior, Department of Water Resources, North Delta 12 Water Agency, Environmental Defense Fund, Natural Heritage 13 Institute, County of Trinity, City of West Sacramento, 14 North San Joaquin Water Conservation District. 15 Did we miss anybody? Did we name anybody that 16 didn't want to be named? 17 MR. JACKSON: Yes, sir. 18 C.O. CAFFREY: Mr. Jackson? 19 MR. JACKSON: I'm here today for the County of 20 Trinity. 21 C.O. CAFFREY: Yes, sir. 22 MR. JACKSON: A member of the Regional Council of 23 Rural Counties, they will not present a case in chief in 24 Phase IV. 25 C.O. CAFFREY: Thank you, sir. And as you well know, CAPITOL REPORTERS (916) 923-5447 2384 1 you in no way forfeit your right or ability to 2 cross-examine and what have you. Mr. Aladjem. 3 MR. ALADJEM: Mr. Caffrey, on behalf of North Delta 4 Water Agency we will be presenting a joint case in chief 5 with the City of West Sacramento. So we'll be putting that 6 on in the North Delta slot, if that's acceptable. 7 C.O. CAFFREY: All right, sir. So you'll be with 8 West Sacramento. 9 MR. ALADJEM: They will be us. 10 C.O. CAFFREY: All right. So we have a combination 11 of North Delta Water Agency and West Sacramento. All 12 right. I will strike West Sacramento as a separate case in 13 chief. 14 Ms. Goldsmith, did I hear you? 15 MS. GOLDSMITH: I represent West Sacramento and I 16 agree. 17 C.O. CAFFREY: And you agree. Thank you very much. 18 Okay. Mr. Brandt? 19 MR. BRANDT: Mr. Chairman, just one thing. One of my 20 witnesses is out on vacation. So we were hoping that we 21 would be far enough down in the order that we would be on 22 the 18th as opposed to today. I think that may well 23 happen. 24 C.O. CAFFREY: It sounds like that. When we get to 25 that point where I call the Department of the Interior, if CAPITOL REPORTERS (916) 923-5447 2385 1 your witness is not here -- they will not be here at all 2 today? 3 MR. BRANDT: Not at all today. They're out of state. 4 C.O. CAFFREY: If we get to you at all today, we'll 5 put you down on the list. 6 MR. BRANDT: Thank you, sir. I appreciate it. 7 C.O. CAFFREY: Mr. Aladjem? 8 MR. ALADJEM: Mr. Caffrey, I have the same problem as 9 Mr. Brandt. I have witnesses who are not available today, 10 so I'd like the same indulgence. Furthermore, we have a 11 witness who's only going to be available on the 18th. And 12 we would like, if the Board will accept it, to put him on 13 at some point on the 18th. I don't anticipate it would be 14 more than about half an hour, both direct and cross. We 15 would appreciate any ability to do that. Thank you. 16 C.O. CAFFREY: That's fine. We've accommodated 17 people in the past. We will continue to do that to the 18 extent of our ability. So do I understand you correctly, 19 Mr. Aladjem, then, that you really don't want to put on any 20 of your case if you can avoid it today? 21 MR. ALADJEM: That's correct. We have our witnesses 22 scheduled for the 18th. 23 C.O. CAFFREY: All right. Thank you, sir. Mr. Lilly 24 and then I'll go to Mr. Sandino. Mr. Lilly. 25 MR. LILLY: Mr. Sandino will probably say what I was CAPITOL REPORTERS (916) 923-5447 2386 1 going to say, so I'll let him go first. 2 C.O. CAFFREY: Okay. Good morning. 3 MR. SANDINO: Mr. Chairman, good morning again. I 4 would like to have something clarified. The Department is 5 proposing to offer testimony on all four of the settlement 6 agreements. And we're looking for suggestions whether or 7 not we should offer it based on subject area, for instance, 8 the Cache Creek proposal that's going first, or should we 9 do it in mass? I think it might make more sense for us to 10 give our testimony after Mr. Lilly presents his. 11 MR. LILLY: And that's what I was going to ask is if 12 he could present his Cache Creek testimony right after 13 ours. I think it will make it easier for the Board to 14 follow if we do it like that. 15 C.O. CAFFREY: So you want to change the order, you 16 want the Department of Resources to go second, is that what 17 I'm understanding? 18 MR. LILLY: I think he would like to split it up. 19 MR. SANDINO: We would like to split up our testimony 20 into four parts. 21 C.O. CAFFREY: I see what you're saying. You want to 22 follow each of the presentations. 23 MR. SANDINO: Yes. We're in support of the 24 settlements being offered. And I think it makes more sense 25 for us to provide our testimony as a package with the CAPITOL REPORTERS (916) 923-5447 2387 1 proponents. 2 C.O. CAFFREY: Mr. Aladjem? 3 MR. ALADJEM: We would like to support that request 4 because it makes sense. 5 MR. ETHERIDGE: We would. 6 C.O. CAFFREY: Mr. Birmingham -- Mr. Birmingham, I 7 see a look on his face. Everyone else is more bland. 8 Mr. Birmingham, you have a problem with that? 9 MR. BIRMINGHAM: No. 10 C.O. CAFFREY: Maybe we've all been together too long 11 already, I don't know. 12 MR. BIRMINGHAM: We've been together a long time, 13 Mr. Chairman. The look on my face, you're correct there 14 was a look on my face. Bob Maddow, who is counsel for 15 Contra Costa Water District, I know has questions for the 16 Department of Water Resources' witness, but I'm not sure 17 it's with respect to Cache Creek, or one of the other 18 settlement agreements. 19 He, in fact, is on vacation this week as well as 20 last week. And he's coming here today from South Lake 21 Tahoe to participate in the proceeding. So he -- he may -- 22 he may have a concern about putting on the DWR witnesses 23 with respect to Cache Creek. 24 C.O. CAFFREY: We're going off the record for just a 25 minute. CAPITOL REPORTERS (916) 923-5447 2388 1 (Off the record from 9:28 a.m. to 9:29 a.m.) 2 C.O. CAFFREY: We're back on the record. I have a 3 note here from Ms. Leidigh where she was suggesting, 4 perhaps, DWR might want to make a joint presentation within 5 each of the cases in chief, we would allow that but that's 6 your call. 7 MR. SANDINO: Well, I think the effect is the same. 8 So we can certainly follow them if that makes more sense. 9 C.O. CAFFREY: Who's going to remind me of all this? 10 MR. SANDINO: May I just bring to the attention of 11 the Chair that we are only presenting one witness, 12 Mr. Dwight Russell, for all of our cases in chief for the 13 four settlements. He will be available during the entire 14 hearing. So if someone needs to recall him, if he wasn't 15 here today, we can accommodate them for that if that makes 16 it easier. 17 C.O. STUBCHAER: Mr. Chairman? 18 C.O. CAFFREY: Yes, Mr. Stubchaer. 19 C.O. STUBCHAER: Mr. Chairman, the advantage I think 20 of combining the cases in chief comes in cross-examination. 21 And I think it's the streamline process to do that. 22 MR. LILLY: That's all right. 23 C.O. CAFFREY: So why don't we combine the case in 24 chief, then, if that makes sense to everybody. Can you do 25 that? CAPITOL REPORTERS (916) 923-5447 2389 1 MR. SANDINO: I'm certain we can do that with 2 Mr. Lilly. I'm not sure about the other folks. 3 C.O. CAFFREY: Any objection to that? All right. 4 Then DWR, does that mean you will not have a separate 5 presentation as a case in chief -- does your case in chief 6 only represent these agreements, is that what you're 7 saying? 8 MR. SANDINO: Our case in chief relates only to these 9 agreements, exactly. 10 C.O. CAFFREY: All right, sir, then you will be a 11 part of those cases in chief and not a separate case in 12 chief, then; is that correct? 13 MR. SANDINO: That's fine. Thank you. 14 C.O. CAFFREY: All right. Thank you, Mr. Sandino. 15 All right. Anything else for the good of the cause? 16 MS. LEIDIGH: I think Mr. Nomellini had an opening 17 statement. 18 C.O. CAFFREY: Oh, yes, we are still going to go to 19 opening statements. I was not about to start cases in 20 chief, I just wanted to make sure what the cases in chief 21 were. All right. We will now go to policy statements 22 specific to Phase IV for parties -- I should say -- wait a 23 minute, wait a minute. Let me back up. 24 Did you have an opening statement, or a policy 25 statement, Mr. Nomellini? CAPITOL REPORTERS (916) 923-5447 2390 1 MR. NOMELLINI: I think it falls within the 2 definition of an opening statement by a party that's not 3 presenting a case in chief. 4 C.O. CAFFREY: I understand, that way you get 20 5 minutes instead of 5, right? 6 MR. NOMELLINI: That's what I understood. However, I 7 was not intending to use a full 20 minutes. 8 C.O. CAFFREY: I'm just kidding with you a little 9 bit, Mr. Nomellini. We are at the point, then, where we 10 will hear opening statements for Phase IV for parties not 11 presenting evidence in the phase. So we'll start with 12 Mr. Nomellini. 13 Mr. Jackson, you wish to make one? 14 MR. JACKSON: Yeah. I would ask for one word of 15 clarification. 16 C.O. CAFFREY: Yes, sir. 17 MR. JACKSON: The opening statements are to be 18 addressed to any of the four or five different actions that 19 we have in Phase IV? 20 C.O. CAFFREY: Anything -- 21 MR. JACKSON: Or are we going to do them one at a 22 time? 23 C.O. CAFFREY: No. I want to treat the opening 24 statements to cover the spectrum of Phase IV, otherwise 25 we'll be repeating ourselves over and over again in terms CAPITOL REPORTERS (916) 923-5447 2391 1 of a process, not in terms of subject area. Thank you for 2 that clarification. 3 Did you want to make an opening statement, 4 Mr. Jackson? 5 MR. JACKSON: I don't think so. 6 C.O. CAFFREY: All right. Thank you, sir. Any other 7 parties wishing to make opening statements that will not be 8 presenting cases? Mr. Shephard. Did I miss anybody? I 9 can't see behind Mr. Nomellini. All right. We have the 10 two opening statements, Mr. Nomellini and Mr. Shephard, for 11 Phase IV nonevidentiary presentations. 12 Mr. Nomellini. 13 ---oOo--- 14 OPENING STATEMENT OF CENTRAL DELTA PARTIES 15 BY DANTE JOHN NOMELLINI 16 MR. NOMELLINI: For the record, Dante John Nomellini 17 for Central Delta Parties. And Mr. Chairman and Members of 18 the Board, after many, many days I'm slowly developing an 19 understanding of the procedural rules, I hope. 20 First of all, I'd like to repeat one of our basic 21 themes for Central Delta Water Agency and the other parties 22 that I represent, and that is that we do not think that it 23 is proper to have piecemeal decision making. And I just 24 restate that at the beginning of this. That is one of our 25 primary objections to the structure of the hearing as CAPITOL REPORTERS (916) 923-5447 2392 1 originally contemplated. And I realize there's been some 2 variation in that, I'm not sure it's been formalized to the 3 degree that would cause me to sit down and shut up on this 4 standard point, but anyway, I think there's some 5 recognition to that. 6 We further believe that the State Water Project 7 and the Central Valley Project have the responsibility for 8 meeting and implementing the 1995 Water Quality Control 9 Plan and that all the rest of these parties do not have a 10 responsibility in that scope as outlined in these 11 proceedings. I recognize that's going to be the process 12 that we all go through. 13 I believe further, that the State Water Project 14 and CVP as a segment of that responsibility, clearly, have 15 the responsibility to mitigate their impacts. And, 16 unfortunately, the structure of the environmental documents 17 for this proceeding do not focus in on the causes of the 18 problems that we're trying to address. And, therefore, we 19 will have a struggle with that aspect throughout. 20 Another segment, or another segment of the project 21 responsibilities, is salinity control in the Delta. 22 Clearly a separable item that we have never gotten our arms 23 around as a group and segmented as to what is salinity 24 control that is over and above the obligation to mitigate 25 the impacts of the project. CAPITOL REPORTERS (916) 923-5447 2393 1 Future we see the Davis-Dahlwood Act (phonetic) as 2 stating that the responsibility for enhancement of fish and 3 wildlife, if any of the aspects of this plan fall in the 4 category of enhancement, that that enhancement is the 5 responsibility of the general fund of the state. And I 6 throw in another aspect, we think the Bureau has special 7 responsibility on the San Joaquin River, because of their 8 responsibility to address the drainage problem, 9 particularly, with regard to the San Luis unit. 10 So although my good friends at East Bay MUD may 11 view me as an adversary, I do not see a responsibility on 12 their part with regard to the 1995 Water Quality Control 13 Plan implementation. Now, that's not to say that they do 14 not have responsibility for the rivers, but I view that 15 each one of these tributaries has a responsibility in and 16 of itself. Everybody with a dam has a responsibility for 17 bypass flows. And there are various aspects of each 18 tributary that could involve the water right holders on 19 that tributary making a contribution to that. And, of 20 course, that adds flow to the Delta at some level that 21 would, in fact, diminish the responsibility of the project. 22 Now, we have an easy situation with regard to the 23 Mokelumne River. And that is we have a pending proceeding 24 before this Board on the Mokelumne that we have not yet 25 been enlightened on as to the Board's decision. And, CAPITOL REPORTERS (916) 923-5447 2394 1 therefore, with regard to the Mokelumne we would request 2 that there be no decision in this proceeding without a 3 decision in the other proceeding coming first. 4 We have a further concern that we don't think has 5 been properly addressed overall by the Board that we expect 6 to get to, if you ever get to Phase VIII you're going to 7 have to decide it. We have a court proceeding where 8 there's a reference pending that would come back to you 9 with it and that is: How do we deal with the area of 10 origin laws, the Watershed Protection Act priorities? 11 Assuming you allocate a burden to somebody in the 12 tributaries that could be met by the projects providing 13 water in the Delta, we would argue that the projects have 14 to do that. And, then, it's simply a matter of an 15 obligation of payment of some kind with regard to the 16 stored water portion. These are things that we've never 17 squarely addressed. We've tried to get you to address them 18 in some respect. To date we have not been successful to 19 getting it, but this is the proceeding that could go that 20 far to doing that. 21 So with that in mind we have an objection to, 22 again, the piecemeal decision making. We don't think these 23 people -- and the tributaries have a responsibility here. 24 In any event, we view -- we would view more proper a 25 proceeding that dealt with each one of these agreements as CAPITOL REPORTERS (916) 923-5447 2395 1 a transfer agreement where we focused in on the third-party 2 impacts. We're troubled by the fact that they're being 3 presented as a water right settlement that they would 4 settle these people out without knowing what the total 5 package is that has to be allocated out to tributaries. 6 And we're troubled by that. 7 And we don't think the analogy to the personal 8 injury law that was made earlier in the proceeding is a 9 proper one, but rather we must look at this as one 10 proceeding dealing with property rights where all property 11 right owners have to stay, you know, in the pot. And 12 that's the analogy I would make, although at the time there 13 wasn't an opportunity for the legal argument on it. Thank 14 you very much for the opportunity to present an opening 15 statement. 16 C.O. CAFFREY: Thank you, Mr. Nomellini. 17 Mr. Shephard. 18 MR. SHEPHARD: I'm Mr. Shephard this time. 19 C.O. CAFFREY: Good morning, sir. 20 ---oOo--- 21 OPENING STATEMENT FOR SAN JOAQUIN COUNTY 22 BY THOMAS J. SHEPHARD, SR. 23 MR. SHEPHARD: And this statement is made on behalf 24 of San Joaquin County and it will be very brief. 25 Mr. Nomellini covered a number of points that I would CAPITOL REPORTERS (916) 923-5447 2396 1 cover. The specific point that is really of concern, 2 direct concern to San Joaquin County, is the pending 3 hearing before this Board with respect to the Mokelumne. 4 In that proceeding San Joaquin County asserted certain 5 positions. And those positions, if the Board recognized 6 the positions we asserted, will have an impact on the 7 availability of water and the effects of providing the 8 water that would satisfy the Mokelumne Agreement, which is 9 before you. 10 We don't say the hearing should not proceed, but 11 we would hope that both matters would be decided at the 12 same time so they can be interrelated. It's -- I will say 13 this, that depending on what you decide in the first 14 hearing, there might need to be further hearings with 15 respect to this matter. That I can't say, it will depend. 16 There is also pending the Federal Energy Regulation 17 Commission FERC hearing on a very similar issue as before 18 this Board. And that, again, will have an impact and could 19 have a significant impact. So we would simply ask that you 20 have that in mind as you go forward. 21 C.O. CAFFREY: All right. Thank you very much, 22 Mr. Shephard. That completes the opening statements for 23 parties not wishing to present evidence in this phase, 24 which now takes us to the presentation of the cases in 25 chief. Are there witnesses who will be testifying in CAPITOL REPORTERS (916) 923-5447 2397 1 Phase IV who have not taken the oath? 2 Please, stand all who have not taken the oath and 3 wish to testify. Raise your right hand. You promise to 4 tell the truth in these proceedings? 5 THE AUDIENCE: I do. 6 C.O. CAFFREY: Thank you very much. Please, be 7 seated. We will begin, then, with the case in chief for 8 the Yolo County Flood Control and Water Conservation 9 District. And, Mr. Lilly, do you wish to make an opening 10 statement, sir? 11 ---oOo--- 12 OPENING STATEMENT BY YOLO COUNTY FLOOD CONTROL AND 13 WATER CONSERVATION DISTRICT 14 BY ALAN B. LILLY 15 MR. LILLY: Yes, I do. Thank you, Mr. Caffrey. My 16 name is Alan Lilly. I'm with Bartkiewicz, Kronick and 17 Shanahan in Sacramento. And I'm here today representing 18 the Yolo County Flood Control and Water Conservation 19 District. 20 C.O. CAFFREY: Mr. Lilly, if the shortness of that 21 mic is uncomfortable for you, you may sit if you wish where 22 you were and talk from there. Whatever is more 23 comfortable. 24 MR. LILLY: Thank you. This is only going to take a 25 minute, so I'll just wrap it up here. CAPITOL REPORTERS (916) 923-5447 2398 1 C.O. CAFFREY: Okay. 2 MR. LILLY: The basic issue regarding Yolo County 3 Flood Control is the continuity between Cache Creek and the 4 Delta. Obviously, during times of flood Cache Creek does 5 have continuity with the Delta. In particular those of us 6 who drive across Interstate 80 and cross the Yolo bypass on 7 a regular basis have a pretty good idea of when that is. 8 There are times when the bypass if full of water. And 9 during those times water flowing in Cache Creek can flow 10 all the way to the Delta. 11 Obviously, during those times there's no need for 12 water in the Delta to implement the standards, because the 13 Delta is not in balance and the standards are being 14 implemented without any action, or control by any other 15 party. This point was recognized by this Board as long ago 16 as its Decision 1594 which created the Term 91 process for 17 Sacramento Valley water rights and explicitly excluded 18 water rights on Cache Creek from Term 91 because of lack of 19 continuity between the Delta and Cache Creek during times 20 when the Delta is in balance. 21 In 1992 when this Board held its Bay-Delta hearing 22 in that year, Mr. Francis Borcalli, who is here today, 23 testified for Yolo and explained the lack of continuity 24 during the times when the Delta is in balance. And that 25 testimony was never disputed. And in, fact, has been CAPITOL REPORTERS (916) 923-5447 2399 1 recognized by the State Board in its Draft EIR for the 2 current Bay-Delta proceeding for flow alternative five, 3 which explicitly excludes the Yolo County Flood Control 4 District water rights and, in fact, all the water rights on 5 Cache Creek from flow alternative five. 6 Why we are here today is that the Draft EIR for 7 flow alternatives for three and four does not contain any 8 similar exclusion and we believe it should. We have 9 negotiated with DWR and the State Water Contractors and 10 have prepared a stipulation, which will be offered today, 11 it's DWR Exhibit 34 where basically DWR and the State Water 12 Contractors recognize this lack of continuity. 13 Our one witness today, Mr. Borcalli, will testify 14 regarding flow alternatives three and four and particularly 15 his analysis which leads to the conclusion of the lack of 16 hydraulic continuity between Cache Creek and the Delta 17 during balanced-condition periods. Incidentally, 18 Mr. Borcalli has been a civil engineering specializing in 19 water rights matters for over 30 years and has been the 20 District's main water rights engineer for how many years? 21 I'll ask him when he's testifying, but approximately 20 22 years. 23 C.O. CAFFREY: All right. 24 MR. LILLY: So with that we can go forward with the 25 testimony, or I'm not sure with the joint presentation if CAPITOL REPORTERS (916) 923-5447 2400 1 you want to have a brief opening statement from Mr. Sandino 2 first. That would probably make sense. 3 C.O. CAFFREY: Let's do that. While Mr. Sandino is 4 coming up to make his opening statement, let me remind all 5 the attorneys and witnesses, those who have been here 6 throughout the proceedings in all the phases have heard 7 this a number of times, but some of you have not. 8 I want to remind everybody that according to our 9 procedural rules and regulations we have put a 20-minute 10 limit on direct testimony. The reason for that is because 11 your exhibits have been submitted, copies to all the 12 parties, and it is nothing more than a synopsis, or summary 13 of what you have already submitted and will eventually 14 hopefully be taken into the record. 15 With regard to the cross-examination, there is a 16 60-minute goal per party. You don't have to take 60 17 minutes if you don't want to. And that is not a limit. 18 This is a different due process matter when we're dealing 19 with cross-examination. And when it is relevant there is 20 really no limit on the time, although brevity is always 21 appreciated. So the 60 minutes is always a goal. With 22 that, then, Mr. Sandino, you may make your opening 23 statement. 24 // 25 // CAPITOL REPORTERS (916) 923-5447 2401 1 ---oOo--- 2 OPENING STATEMENT OF CALIFORNIA DEPARTMENT 3 OF WATER RESOURCES 4 BY DAVID SANDINO 5 MR. SANDINO: Thank you again, Mr. Chairman. Our 6 opening statement is comprehensive. It involves not just 7 Cache Creek, but the other three settlements, but it's so 8 brief I think I'm just going to keep it intact and present 9 it to you this morning. 10 Good morning, Chairman Caffrey. Over the past 11 year the Department of Water Resources has supported and 12 encouraged the efforts of various parties to this hearing 13 to enter into settlement agreements. We continue to 14 believe that cooperative approaches are more constructive 15 than adversarial approaches; and are more likely to achieve 16 a sharing of the obligation to meet the 1995 Water Quality 17 Plan's objectives. 18 We saw the results in Phase II of the efforts of 19 the San Joaquin River interest to achieve consensus. We 20 would like to report to the Board that efforts to achieve 21 additional settlements on the Sacramento River are still 22 ongoing. As the Board is aware, the issues involved in 23 reaching settlement are extremely complex and involve a 24 variety of legitimate interests. This is why we do not 25 have an announcement relating to the completion of more CAPITOL REPORTERS (916) 923-5447 2402 1 settlements on the Sacramento at this time. We are hopeful 2 that we can make an announcement to the Board and the other 3 parties in the next few months about the successful 4 completion of more settlements. 5 In this phase of the hearing the Department will 6 present evidence that supports four different settlements: 7 East Bay MUD Municipal Utility District, Cache Creek, Putah 8 Creek, the North Delta Water Agency. Our testimony for 9 each one of these settlements is brief. The nature of 10 these settlements is different. 11 The East Bay MUD Municipal Utility District 12 settlement provides additional flows to the Delta from the 13 Mokelumne River. The Department will testify that it is 14 willing to serve as a backstop for its share of the 15 responsibility to meet water quality objectives in order to 16 protect nonsettling parties in the event the Board accepts 17 a settlement and makes a different allocation of 18 responsibility for the Mokelumne River in Phase VIII. 19 Our Cache Creek and Putah Creek testimony is 20 similar. The Department will testify that because of the 21 nature of these water systems no obligation should be 22 imposed on Yolo County Flood Control and Water Conservation 23 District for Cache Creek and Solano County Water Agency for 24 Putah Creek to contribute to meet the Plan's objectives. 25 We have endorsed these settlements in an effort to CAPITOL REPORTERS (916) 923-5447 2403 1 keep these hearings as uncomplicated as possible. And in 2 recognition of the physical reality of these systems. Our 3 stipulation with North Delta Water Agency is based on a 4 contract that the Department signed in 1981 in which we 5 have interpreted it to mean that the Department has agreed 6 to satisfy any obligation that may be imposed on North 7 Delta Water Agency during this hearing subject to certain 8 limitations. That concludes our opening statement. Thank 9 you, again. 10 C.O. CAFFREY: Thank you, Mr. Sandino. Mr. Lilly, do 11 you wish to proceed with your witness? 12 MR. LILLY: I will. Thank you. 13 ---oOo--- 14 DIRECT TESTIMONY OF YOLO COUNTY FLOOD CONTROL AND WATER 15 CONSERVATION DISTRICT 16 OF FRANCIS BORCALLI 17 BY ALAN LILLY 18 MR. LILLY: Mr. Borcalli, please state your name and 19 spell your last name for the record. 20 MR. BORCALLI: Yes. My name is Francis Borcalli. 21 The last name is B, as in boy, O-R-C-A-L-L-I. 22 MR. LILLY: Have you taken the oath this morning for 23 this hearing? 24 MR. BORCALLI: Yes, I have. 25 MR. LILLY: Now, please, exhibit Yolo County Flood CAPITOL REPORTERS (916) 923-5447 2404 1 Control and Water Conservation District 1. And I've got a 2 copy right here if you need it. Is this an accurate 3 statement of your education and work experience? 4 MR. BORCALLI: Yes. 5 MR. LILLY: And just to summarize it you are a civil 6 engineer specializing in water resource matter with 7 31-years' experience? 8 MR. BORCALLI: Yes. 9 MR. LILLY: And how many years have you been the 10 engineer for the Yolo County Flood Control and Water 11 Conservation District? 12 MR. BORCALLI: For approximately 20 areas. 13 MR. LILLY: Now, if you can go forward to exhibit -- 14 and, Mr. Chairman, I'm not going to keep saying "Yolo 15 County Flood Control and Water Conservation District." 16 I'll just say "Yolo," unless there's any question about 17 that. 18 C.O. CAFFREY: Or you can even say "Yo." 19 MR. LILLY: I appreciate the offer, but I will not 20 follow. Mr. Borcalli, please examine Exhibit Yolo 2. Is 21 this an accurate statement of your testimony for this 22 hearing? 23 MR. BORCALLI: Yes. 24 MR. LILLY: All right. Now, I'm just going to ask 25 you some questions to summarize the testimony. First of CAPITOL REPORTERS (916) 923-5447 2405 1 all I'm going to put a copy of Exhibit Yolo 4 on the 2 overhead projector. First of all to orient us could you, 3 please, just describe the location of the Sacramento River 4 on this exhibit? 5 MR. BORCALLI: Yes. The Sacramento River is on the 6 right side running from the top to the bottom, comes along 7 the City of Sacramento. 8 MR. LILLY: All right. And I see the City of 9 Sacramento labeled. Just to complete the orientation, 10 where are the cities of Woodland and Davis on this map? 11 MR. BORCALLI: City of Woodland is just to the left 12 of City of Sacramento; and Davis to the south of the City 13 of Woodland there. 14 MR. LILLY: All right. Now, going forward please 15 describe the locations of Yolo District's 2 water supply 16 reservoirs. 17 MR. BORCALLI: The two reservoirs, Clear Lake and 18 Indian Valley dam and reservoir are to the upper left-hand 19 side of the presentation. The Indian Valley watershed 20 and -- reservoir in the upper part. And then Clear Lake 21 just below that. 22 MR. LILLY: Are these reservoirs filled predominantly 23 from rainfall, or snowmelt? 24 MR. BORCALLI: Predominantly rainfall. 25 MR. LILLY: Now, next Cache Creek is shown on this CAPITOL REPORTERS (916) 923-5447 2406 1 exhibit, but if you could describe in words the general 2 path of Cache Creek? 3 MR. BORCALLI: Yes. In the right-hand -- the lower 4 most part of Clear Lake is where Cache Creek begins. And 5 it traverses a -- from the left to the right coming down 6 towards just north of the City of Woodland and discharges 7 under Interstate 5 into just west of the -- terminates west 8 of the Sacramento River. 9 MR. LILLY: And, then, how about the north fork of 10 Cache Creek, why don't you just give a general description 11 of that? 12 MR. BORCALLI: North fork of Cache Creek is tributary 13 to Cache Creek. It's about five miles below Clear Lake. 14 MR. LILLY: And that flows from Indian Valley into 15 Cache Creek? 16 MR. BORCALLI: The releases from Indian Valley dam 17 flow into Cache Creek, yes. 18 MR. LILLY: Now, you've answered the question about 19 the principal water source of reservoirs. For the Cache 20 Creek watershed, in general, are the waters primarily 21 derived from rainfall or snow melt? 22 MR. BORCALLI: Rainfall. 23 MR. LILLY: All right. Now, before we go on to 24 Exhibit 6, please, just describe the locations of the Capay 25 Dam and the Cache Creek settling basin on Exhibit 4. CAPITOL REPORTERS (916) 923-5447 2407 1 MR. BORCALLI: Capay Dam which is a diversion 2 facility on Cache Creek is located just to the west, or the 3 left -- left of the City of Woodland just north of what 4 would be Lake Berryessa. 5 MR. LILLY: Okay. Is that just basically just to the 6 west of Interstate 505? 7 MR. BORCALLI: West of Interstate 505 about five 8 miles. 9 MR. LILLY: What about the Cache Creek settling 10 basin? 11 MR. BORCALLI: The settling basin is located north of 12 Woodland to the right of Interstate 5. 13 MR. LILLY: All right. I've now put a copy of 14 Exhibit Yolo 6 on the overhead projector. And I'm going to 15 ask you just a couple questions about this. 16 First of all, just to orient us again, please, 17 describe where the Sacramento River and the City of 18 Sacramento are on this exhibit. 19 MR. BORCALLI: The City of Sacramento on the 20 right-hand side of the figure. And the Sacramento River 21 flowing from the top of the figure almost directly south. 22 MR. LILLY: All right. So is this basically an 23 expansion of part of what was depicted in Exhibit 4? 24 MR. BORCALLI: Yes, with a little more detail. 25 MR. LILLY: All right. Now, let's go forward. Tell CAPITOL REPORTERS (916) 923-5447 2408 1 us where Cache Creek and the Cache Creek settling basin are 2 on this exhibit? 3 MR. BORCALLI: Okay. To the left-hand side of the 4 figure in the upper part is the City of Woodland. And as 5 is labeled the Cache Creek settlement basin is to the north 6 and to the right of the City of Woodland. And to the north 7 of Woodland is Cache Creek, which flows from the right -- 8 from the left side of the sheet into the right and 9 discharges into the settling basin. And then the City of 10 Davis is south of Woodland. 11 MR. LILLY: Now, following the water from the Cache 12 Creek settling basin the water that does not percolate into 13 the ground, where can that flow out of the settling basin? 14 MR. BORCALLI: The water entering the settling basin 15 from Cache Creek has two outlets once -- from the settling 16 basin. There's a low-level outlet which is a 17 4-foot-by-5-foot box culvert, which has a gated control. 18 And, then, a larger spillway which is a little over 1700 19 feet long, which is set so that the settling basin 20 basically is efficient for dropping sediment to preserve 21 the capacity of the bypass. But there's two discharges, a 22 box culvert and an overflow spillway. 23 MR. LILLY: And for those of us that don't spend 24 Cache Creek as you do, which is probably everyone in the 25 room besides you, can you see that weir when you're driving CAPITOL REPORTERS (916) 923-5447 2409 1 on Interstate 5 from Sacramento to Woodland? 2 MR. BORCALLI: Yes, you can, especially in the 3 wintertime when the flow is discharging over the weir. 4 MR. LILLY: Is it fair to say it's basically about a 5 half a mile to the right of the freeway? 6 MR. BORCALLI: Yes. 7 MR. LILLY: All right. Now on Exhibit 6, please, 8 describe the location of the west channel of the Yolo 9 bypass. 10 MR. BORCALLI: There is two heavy lines on the 11 figure. The heavy line on the left is what we refer to as 12 the west channel, which is basically the borrow pit that 13 was used to construct the levees on the west bank. And, 14 then, the other channel is the Tule Canal, and that's 15 coming down -- that's the heavy line on the right, the 16 right side. 17 MR. LILLY: All right. Now, please, describe how 18 water can flow, first of all, from the settling basin into 19 the west channel of the bypass. 20 MR. BORCALLI: Either outlet from the settling basin, 21 the box culvert or water that discharges over the spillway 22 will flow into the west canal and will flow south of 23 Interstate 5 to the extent the gates on the culverts under 24 the old Highway 16 are open. 25 MR. LILLY: Does water that is in the west channel of CAPITOL REPORTERS (916) 923-5447 2410 1 the Yolo bypass flow into the Delta during periods when the 2 Delta is in balanced conditions? 3 MR. BORCALLI: No. 4 MR. LILLY: And is that why your line for the west 5 canal basically stops just a couple miles south of 6 Interstate 80? 7 MR. BORCALLI: Correct. 8 MR. LILLY: Now, you've described the east channel, 9 or what is shown on your map as the Tule Canal. Please, 10 describe how water can flow from the settling basin into 11 the Tule Canal. 12 MR. BORCALLI: There is no direct channel from the 13 settling basin to the Tule Canal. As the water discharges 14 from the settling basin there has to be sufficient flow to 15 the pond and then move to the -- move easterly across the 16 bypass. From the settling basin to the Tule Canal it's 17 about 7500 feet and -- without any established canals. So 18 water has to pond and, like I say, flow from the west to 19 the east as sheaf flow across the bypass. 20 MR. LILLY: Did you make an estimate of how much 21 water would have to be flowing in Cache Creek immediately 22 downstream of the Capay Dam in order for there to be any 23 flow of water from the Cache Creek into the Tule Canal? 24 MR. BORCALLI: Yes, I did. 25 MR. LILLY: And what is the minimum total creek flow CAPITOL REPORTERS (916) 923-5447 2411 1 that would be necessary at Cache Creek immediately 2 downstream of the Capay Dam for there to be any surface 3 water flow from Cache Creek into the Tule Canal? 4 MR. BORCALLI: Estimated in the order of about 600 5 cubic feet per second at Capay Dam. 6 MR. LILLY: All right. Why don't you go ahead, then, 7 and describe how you obtained that estimate and what the 8 components are. 9 MR. BORCALLI: Three components basically, starting 10 from there is -- capacity on the west canal is about 200 11 cubic feet per second. And to establish continuity between 12 the settling basin and the Tule Canal requires about 200 13 cubic feet per second to overcome seepage and evaporation, 14 evaporation losses. So you need to get 400 csf to this -- 15 the discharge from the settling basin, the reach of Cache 16 Creek from the settling basin up to Capay Dam is a very 17 substantial recharge component. And the losses recharge 18 alone would be about 200 cubic feet per second. So you 19 need about 600 csf cubic feet per second to establish 20 hydraulic continuity between the settling basin and the 21 Tule Canal. 22 MR. LILLY: All right. I'm going to go ahead now and 23 put a copy of Yolo Exhibit 8 -- or the first page of Yolo 24 Exhibit 8 on the projector. First of all, did you prepare 25 this table? CAPITOL REPORTERS (916) 923-5447 2412 1 MR. BORCALLI: Yes, I did. 2 MR. LILLY: And why don't you tell us what this table 3 is and then just go through it and briefly describe the 4 different entries. 5 MR. BORCALLI: Okay. What the -- the first two 6 columns where it says "year" and "month," these are years 7 and months that are identified in the appendix for 8 alternative three. And alternative four is very similar, 9 but identified the months for which curtailment was 10 identified. 11 MR. LILLY: And maybe we can just clarify when you 12 say, "the appendix," which appendix are you referring to? 13 MR. BORCALLI: It is Appendix A of November 1977 14 State Board document. 15 MR. LILLY: That's November 1997? 16 MR. BORCALLI: That's correct. Volume three. 17 MR. LILLY: Okay. So basically you have entries on 18 your Exhibit A for the months in which curtailment is shown 19 on that other appendix to the Draft EIR? 20 MR. BORCALLI: Yes. I did not show the months of 21 July or August, because there is virtually no unimpaired 22 flow in the watershed during those months. So they are 23 excluded from the second column. 24 MR. LILLY: All right. Why don't you go ahead now 25 and describe the columns to Clear Lake to Indian Valley and CAPITOL REPORTERS (916) 923-5447 2413 1 to Cache Creek on Exhibit A. 2 MR. BORCALLI: The average daily flows in cubic feet 3 per second are the inflow to Clear Lake during these years 4 and months and Indian Valley. And then the flow to Cache 5 Creek would be accretions downstream of Indian Valley and 6 Clear Lake. And the fourth column, the last column where 7 it says "Total at Capay," is merely the sum at Clear Lake, 8 the inflow to Indian Valley and the accretions downstream. 9 It ignores any attempt to estimate losses as a result of 10 the riparian consumptive use, or seepage along -- along the 11 channel. 12 MR. LILLY: So is it fair to say that the entry in 13 the column, "Total at Capay," represent an estimate of the 14 unimpaired flow in Cache Creek at that point or, perhaps, 15 an overstatement of what the unimpaired flow at Cache Creek 16 would be at that point -- 17 MR. BORCALLI: Yes. 18 MR. LILLY: -- during these months? 19 MR. BORCALLI: Yes. 20 MR. LILLY: All right. And I'll pull up any of the 21 other pages if necessary, but what is the highest entry 22 shown on this table for the flow at Capay? 23 MR. BORCALLI: The highest total at Capay it 24 occurred -- it's on page two of three in June of 1951. 25 MR. LILLY: Okay. And what was that flow? CAPITOL REPORTERS (916) 923-5447 2414 1 MR. BORCALLI: 183 cubic feet per second. 2 MR. LILLY: And, then, I won't ask for every entry, 3 but what's the second highest flow at Capay that was shown 4 on this exhibit? 5 MR. BORCALLI: The second highest is shown on page 6 three of three and that is a total -- that occurred in May 7 of '87. 8 MR. LILLY: And what was that amount? 9 MR. BORCALLI: 116 cubic feet per second. 10 MR. LILLY: Now, based on the analysis that you've 11 summarized this morning and this table, do you have an 12 opinion as to whether or not unimpaired surface water flows 13 in Cache Creek ever would reach the Delta during times when 14 diversions of water in the Sacramento Valley are proposed 15 to be curtailed under flow alternative three in the State 16 Board's Draft Bay-Delta EIR? 17 MR. BORCALLI: Yes, I do. 18 MR. LILLY: What is that opinion? 19 MR. BORCALLI: That during the months that have been 20 identified for curtailment there is insufficient water, 21 unimpaired water in the system to reach the Delta. 22 MR. LILLY: And just to elaborate on that, could you 23 compare the 600 number that you previously described that 24 would be required for surface water flows to have 25 continuity with the Delta with the numbers on Exhibit A. CAPITOL REPORTERS (916) 923-5447 2415 1 MR. BORCALLI: All right. As I indicated, the 2 highest total flow on Capay was 183 cubic feet per second 3 substantially less than the minimum of 600. And there's 4 several -- as you can see in looking through the summary, 5 there's -- even if you were to let's say exclude the flow 6 down the west canal there still is not sufficient water to 7 establish hydraulic continuity to the Tule Canal. 8 MR. LILLY: Would the same conclusion hold for the 9 State Water Board alternative four that was listed in the 10 Draft EIR? 11 MR. BORCALLI: Yes. 12 MR. LILLY: Is that the entries for table four and 13 table three were essentially the same for purposes of your 14 analysis? 15 MR. BORCALLI: Yes. 16 MR. LILLY: Thank you. Mr. Caffrey, I have no 17 further questions for this witness. 18 C.O. CAFFREY: That completes the testimony of the 19 witness in its entirety, Mr. Lilly? 20 MR. LILLY: The direct. Now, we can, based on the 21 joint presentation, perhaps, we should have Mr. Russell 22 give his direct and then have the panel give cross. 23 C.O. CAFFREY: Yes, I would like to have Mr. Sandino 24 bring his witness up and then we'll cross-examine the two 25 gentlemen as a panel. CAPITOL REPORTERS (916) 923-5447 2416 1 ---oOo--- 2 DIRECT TESTIMONY OF THE DEPARTMENT OF WATER RESOURCES 3 OF DWIGHT RUSSELL 4 BY DAVID SANDINO 5 MR. SANDINO: David Sandino, again, on behalf of the 6 Department of Water Resources, with me is Mr. Russell. 7 Mr. Russell, have you taken the oath? 8 MR. RUSSELL: Yes, I have. 9 MR. SANDINO: Could you, please, state your name and 10 spell it for the record. 11 MR. RUSSELL: First name is Dwight, last name is 12 Russell, R-U-S-S-E-L-L. 13 MR. SANDINO: Do you have in front of you a copy of 14 DWR marked Exhibit 12? 15 MR. RUSSELL: Yes, I do. 16 MR. SANDINO: Is this exhibit an accurate statement 17 of your qualifications? 18 MR. RUSSELL: Yes, it is. 19 MR. SANDINO: Would you, please, summarize your 20 qualifications for the Board. 21 MR. RUSSELL: Yes, thank you. I'm the program 22 manager for the Department of Water Resources, Bay-Delta 23 Hearing Coordination Activity. And at the same time I'm 24 also the -- the program manager for that activity. So in 25 the program manager activity we coordinate experts in the CAPITOL REPORTERS (916) 923-5447 2417 1 Department to review testimony and so forth. And so we act 2 as a team, if you will, within DWR. I've been with DWR for 3 about 17 years. And I've been program manager for about 3 4 years. 5 MR. SANDINO: Thank you. Do you have in front of you 6 DWR Exhibit 34? 7 MR. RUSSELL: Yes, I do. 8 MR. SANDINO: Could you, please, identify this 9 exhibit? 10 MR. RUSSELL: This is a stipulation between the 11 Department of Water Resources and the State Water 12 Contractors and the Yolo County Flood Control and Water 13 Conservation District speaking to the lack of continuity 14 between the Yolo Conservation District -- excuse me, Yolo 15 County Water Conservation and Flood Control District, 16 excuse me if I stumble over that, and the connection with 17 the Delta hydraulic in connection with the Delta. 18 MR. SANDINO: If you want you can use Mr. Lilly's 19 shorthand and just call it "Yolo." 20 MR. RUSSELL: Thank you. I will. 21 MR. SANDINO: Okay. What parties have signed the 22 stipulation? 23 MR. RUSSELL: I will read from the document: The 24 Department of Water Resources, Yolo County Flood Control 25 and Water Conservation District and the State Water CAPITOL REPORTERS (916) 923-5447 2418 1 Contractors. 2 MR. SANDINO: Do you have in front of you DWR Exhibit 3 Number 32? 4 MR. RUSSELL: I do. 5 MR. SANDINO: Is this exhibit a true and correct copy 6 of your testimony today? 7 MR. RUSSELL: For the Cache Creek issue, yes, it is. 8 MR. SANDINO: Thank you. Could you, please, 9 summarize this testimony as it relates to Cache Creek. 10 MR. RUSSELL: Yes, I will. The Department, the State 11 Water Contractors, and the Yolo County Flood Control and 12 Water Conservation District entered into a stipulation 13 dated June 9th, 1998, concerning Cache Creek. DWR Exhibit 14 34 is a true and correct copy of the stipulation we just 15 spoke of. 16 The parties have agreed to a factual stipulation 17 that as long as a District continues to divert water from 18 Cache Creek in accordance with its current rights, no 19 requirement should be placed upon the agency to implement 20 the water quality objectives in the Delta. The parties 21 believe this statement is consistent with the principles in 22 the previous Board Decision 1594 issued in 1983 which 23 determined for the purposes of Term 91 that the Cache Creek 24 water rights have been exercised when Cache Creek has 25 little or no hydraulic continuity with the Delta, or when CAPITOL REPORTERS (916) 923-5447 2419 1 the Delta was not in balanced condition. 2 This statement is also consistent with the Board's 3 Draft EIR in pages Roman Numeral 2-29 which does not 4 allocate responsibility for implementing the flow 5 objectives to the Cache Creek watershed for flow 6 alternative five, which is based on watershed unimpaired 7 flows because of Cache Creek's essential lack of hydraulic 8 continuity with the Delta when the Delta is in balanced 9 condition. 10 The District presented technical evidence to 11 support the stipulation. The Department has reviewed the 12 technical evidence for the stipulation and believes that 13 there is support for factual basis to enter into the 14 stipulation. That's the end of my comments. Thank you. 15 MR. SANDINO: That concludes our case in chief. I 16 told you it would be brief. 17 MR. LILLY: Nothing wrong with that. 18 C.O. CAFFREY: Thank you very much, Mr. Sandino. 19 MR. SANDINO: Thank you. 20 C.O. CAFFREY: Let's see by -- oh, before that, let's 21 see if staff have any questions. Any questions from the 22 staff? 23 MR. HOWARD: What about the parties first? 24 C.O. CAFFREY: I haven't even gone to cross, yet, 25 have I? I shouldn't have eaten that half donut. All CAPITOL REPORTERS (916) 923-5447 2420 1 right. By a showing of hands how many parties wish to 2 cross-examine this panel? See, I was right, Mr. Howard -- 3 oh, Mr. Gallery, you blew my record. 4 All right. Mr. Gallery, please come forward. Any 5 others besides Mr. Gallery? Good morning, sir. 6 ---oOo--- 7 CROSS-EXAMINATION OF YOLO COUNTY FLOOD CONTROL AND 8 WATER CONSERVATION DISTRICT 9 BY DANIEL F. GALLERY 10 MR. GALLERY: Thank you, Mr. Caffrey. I would just 11 like to take the opportunity to get on the record with 12 Mr. Russell here to explain in the record what is meant 13 when the Delta is in balanced conditions. 14 MR. RUSSELL: Okay. A balanced condition occurs 15 when, and this is a little bit technical, when the sum of 16 the project exports and their in-basin obligations 17 subtracted from project releases is approximately equal. 18 Okay. 19 And excess conditions, which is the opposite of 20 balance condition, occurs when there is more flow going 21 toward Suisun Bay, or the Golden Gate, if you will, which 22 is just the opposite situation. When there is more 23 releases from storage, or there's more water coming in than 24 the in-basin obligation and the projects are exporting. 25 MR. GALLERY: And when you say, "in-basin CAPITOL REPORTERS (916) 923-5447 2421 1 obligation," are you referring -- are you referencing the 2 1995 plan outflow obligations? 3 MR. RUSSELL: Yes, I am. 4 MR. GALLERY: You are. Thank you, that's all I have. 5 C.O. CAFFREY: Thank you, Mr. Gallery. Questions 6 from the staff? Mr. Howard. 7 ---oOo--- 8 CROSS-EXAMINATION OF YOLO COUNTY FLOOD CONTROL AND 9 WATER CONSERVATION DISTRICT 10 BY STAFF 11 MR. HOWARD: As I understand your testimony, you're 12 concerned about the flow alternatives three and four in the 13 Draft EIR. Alternative three and four would place Term 91 14 in the permits of all the post 1914 water right 15 appropriators in the Central Valley. And Term 91 requires 16 curtailment of the diversions to storage and direct 17 diversions when the State Water Project and the Central 18 Valley Project are releasing stored water to meet in-basin 19 entitlements. 20 However, Term 91 also further states that 21 curtailment is not required if there's no hydrologic 22 continuity between the point of diversion and the Delta. 23 In light of the exclusion that's already contained in Term 24 91, does the Yolo County Flood Control and Water 25 Conservation District object to the inclusion of this term CAPITOL REPORTERS (916) 923-5447 2422 1 in their water rights permits as proposed in alternatives 2 three and four? 3 MR. LILLY: I'll state the standard objection. I 4 think that really does call for a legal conclusion. If 5 Mr. Borcalli has any knowledge, I guess he's free to answer 6 that. I think that really should be a question responded 7 to in closing argument. 8 C.O. CAFFREY: I understand your objection, 9 Mr. Lilly. And it is on the record, but our practice has 10 been to, in most instances, allow the witnesses to answer 11 to the best of their ability. 12 Do you feel competent to answer the question, or 13 do you have an opinion, Mr. Borcalli? 14 MR. BORCALLI: No, I don't. 15 C.O. CAFFREY: All right, sir. Thank you. 16 MR. HOWARD: Thank you. That was all I had. 17 C.O. CAFFREY: Any questions from the Board Members? 18 Mr. Brown. 19 ---oOo--- 20 CROSS-EXAMINATION OF YOLO COUNTY FLOOD CONTROL AND 21 WATER CONSERVATION DISTRICT 22 BY THE BOARD 23 MEMBER BROWN: Water from the Clear Lake and Cache 24 Creek is not regulated, is it, it's just overflow? 25 MR. BORCALLI: From Clear Lake to -- CAPITOL REPORTERS (916) 923-5447 2423 1 MEMBER BROWN: Cache Creek. 2 MR. BORCALLI: There is a Cache Creek Dam about five 3 miles downstream of Clear Lake. 4 MEMBER BROWN: The dam, yes. But the water from 5 Clear Lake itself, it's just overflow? 6 MR. BORCALLI: Well, the summertime releases are 7 regulated by the dam. 8 MEMBER BROWN: Okay. 9 C.O. CAFFREY: Mr. Stubchaer, you have a question? 10 C.O. STUBCHAER: Yes. Following on Mr. Brown's 11 question, is the downstream dam on Cache Creek, then, have 12 the same water level as Clear Creek? In other words, is 13 the water surface level from the dam back into the Clear 14 Lake? 15 MR. BORCALLI: When the gates on the dam are closed 16 the level is the same. 17 C.O. STUBCHAER: It is? 18 MR. BORCALLI: Yes. 19 C.O. STUBCHAER: Is there any proposal to increase 20 the release rate from the dam? 21 MR. BORCALLI: No. 22 C.O. STUBCHAER: What is the maximum release rate? I 23 think you said that already, but the release rate from 24 Clear Lake. 25 MR. BORCALLI: If I can distinguish between release CAPITOL REPORTERS (916) 923-5447 2424 1 capability and actual releases, the release capability of 2 the dam is very, very large. But the irrigation 3 releases -- I'm not -- I apologize, I'm not sure which 4 release you're asking about. 5 C.O. STUBCHAER: Well, I'm asking -- I was thinking 6 about when Clear Lake is flooding, as it has been. 7 MR. BORCALLI: Right. 8 C.O. STUBCHAER: And is the release from the dam 9 restricted because of downstream conditions in Cache Creek 10 below what it might otherwise be to relieve flooding in 11 Clear Lake? 12 MR. BORCALLI: Okay. With respect to the releases 13 from Clear Lake, they are limited by the outlet channel 14 capacity. The capacity of the dam is much greater than the 15 channel upstream. 16 C.O. STUBCHAER: What is that outlet channel 17 capacity? 18 MR. BORCALLI: It varies with the stage on the lake, 19 but from about -- up to about 5,000 csf as a nominal flood 20 discharge. At that same stage the dam could discharge 21 20,000 cubic feet per second. 22 C.O. STUBCHAER: Just to comment, when you fly from 23 San Francisco to Sacramento and you sit on the right side 24 of the commuter plane you get an excellent view of Cache 25 Creek. I just want to disclose that so I wouldn't be CAPITOL REPORTERS (916) 923-5447 2425 1 accused of an ex parte contact. 2 MR. LILLY: We're glad you keep your eyes open when 3 you're flying. 4 C.O. CAFFREY: Although, now, we can accuse you of 5 testifying, only a clarification, Mr. Stubchaer. Thank you 6 very much. Other questions from the Board Members? All 7 right. 8 Mr. Lilly, do you, or do you, Mr. Sandino, wish to 9 offer any redirect? 10 MR. SANDINO: No. 11 MR. LILLY: I have no redirect, but I would like to 12 offer our exhibits though. 13 C.O. CAFFREY: All right. This is the appropriate 14 time to do so. 15 MR. LILLY: Mr. Caffrey, for Yolo I would like to 16 offer Exhibits Yolo 1 through 8 at this time. 17 C.O. CAFFREY: 1 through 8. The staff agrees with 18 the synchronization. And is there any objections from any 19 of the parties to accepting Exhibit 1 through 8 into the 20 evidentiary record? Hearing and seeing no objection, 21 Mr. Lilly, your exhibits are accepted. 22 Mr. Sandino, are you going to offer yours 23 case-by-case, so to speak; if you can, that would probably 24 be very helpful. 25 MR. SANDINO: I think what we should do is offer CAPITOL REPORTERS (916) 923-5447 2426 1 Mr. Russell's qualifications, DWR Exhibit 12 and the 2 stipulation, DWR Exhibit 34. And his testimony we can 3 offer at the end. Does that make the most sense? 4 C.O. CAFFREY: Right, because you're going to bring 5 him back a number of times. So that does make sense. 6 We're in agreement with the numbering. Is there any 7 objection from the audience, or from the other parties to 8 accepting the designated exhibits into evidence? Seeing 9 and hearing no objection, the exhibit is accepted. 10 MR. SANDINO: Thank you, Mr. Caffrey. 11 MR. LILLY: Excuse me, Mr. Caffrey. You said, 12 "exhibit." I think it's, "exhibits." There's 12 and 34. 13 C.O. CAFFREY: It's 12 and 34. "Exhibits," thank 14 you, Mr. Lilly. 15 C.O. STUBCHAER: He has good ears. 16 C.O. CAFFREY: He's watching me very, very carefully. 17 He has good ears, right. All right. That, then, completes 18 the case in chief for Yolo, or "Yo," as some of us refer to 19 it. And we will now take a 12-minute break and we will 20 come back for our next case in chief. 21 MR. LILLY: Thank you, Mr. Caffrey. 22 C.O. CAFFREY: Thank you Mr. Lilly. Thank you 23 gentlemen of the panel. 24 (Recess taken from 10:22 a.m. to 10:36 a.m.) 25 C.O. CAFFREY: We are back on the record in Phase IV. CAPITOL REPORTERS (916) 923-5447 2427 1 Let's go to the case in chief for East Bay Municipal 2 Utility District. Mr. Etheridge, good morning, sir. 3 ---oOo--- 4 DIRECT TESTIMONY OF EAST BAY MUNICIPAL UTILITY DISTRICT 5 BY FRED ETHERIDGE 6 MR. ETHERIDGE: Good morning, Mr. Caffrey. For the 7 record, again, I'm Fred Etheridge on behalf of the East Bay 8 Municipal Utility District or EBMUD. In its case in chief 9 EBMUD will present its Mokelumne Settlement for this 10 Bay-Delta Hearing. Early in this proceeding the State 11 Board encouraged parties to enter into settlement 12 negotiations as a means of resolving issues. 13 East Bay MUD took that to heart and began 14 discussions in 1996, over two years ago, with a group of 15 project exporters who had just been recently, in the spring 16 of 1996, signed the San Joaquin Letter of Intent. Those 17 EBMUD and exporter discussions culminated in the December 18 1996 execution of the Mokelumne MOU, which Mr. Lampe will 19 later discuss. That MOU settlement constitutes EBMUD's 20 offer in this proceeding. 21 I want to provide you with just a brief road map 22 of our case. We will begin by providing you some important 23 background information of East Bay MUD water rights and 24 source of water from the Mokelumne River as well as the 25 health of the Lower Mokelumne River anadromous fishery. CAPITOL REPORTERS (916) 923-5447 2428 1 That information is essential for the State Board to have 2 before it even begins considering assigning the Bay-Delta 3 responsibility to East Bay MUD. 4 In that regard we will first put on Jon Myers who 5 will briefly describe EBMUD's service area location, 6 Mokelumne River -- and the Mokelumne River, the primary of 7 the District's water. Next Mr. Vogel will summarize the 8 health and status of the Lower Mokelumne anadromous 9 fishery, which will also provide key background information 10 to the State Board so that you have something against which 11 you can compare the affects of some of the proposed flow 12 alternatives. 13 We will then present our analysis of three of the 14 State Board's proposed flow alternatives, those being 15 alternatives three and four, the two variations of the 16 water right priority alternative. They differ in how 17 Friant is treated and the watershed allocation alternative. 18 We will begin that with -- 19 C.O. CAFFREY: Excuse me, Mr. Jackson. 20 MR. JACKSON: Yes, Mr. Caffrey. The comparison of 21 alternatives is held in number II-A. We're only doing 22 agreements as I understand it and the quality of 23 agreements. There are a number of parties who are not 24 present today who are substantially interested in the 25 comparison of the alternatives. CAPITOL REPORTERS (916) 923-5447 2429 1 MR. ETHERIDGE: Well, Mr. Caffrey, if I may respond 2 to that. II-A -- we segmented on Mr. O'Laughlin's motion 3 on behalf of the San Joaquin tributaries. The Board 4 segmented Phase II, which was specifically on the San 5 Joaquin River Agreement, to deal with the threshold issue 6 there of equivalency. The Board later found that it could 7 go forward. And, then, to a Phase II to look at the 8 various flow alternatives for the San Joaquin parties. 9 We have always understood Phase IV to be a 10 complete presentation of the settlements that are in Phase 11 IV. All parties in support of it would present their 12 evidence, all parties opposed would present their evidence. 13 I believe that's in your notice. And so this is the 14 presentation of the Mokelumne Settlement including other 15 flow alternatives, and others will also put on evidence as 16 to what they believe East Bay MUD's responsibility should 17 be. There is no segmented phase for this. 18 C.O. CAFFREY: Thank you, Mr. Etheridge. Mr. Godwin? 19 MR. GODWIN: I would agree with Mr. Etheridge. The 20 Phase II-A was specific to the San Joaquin River Agreement 21 as compared to the other flow alternatives. 22 C.O. CAFFREY: Mr. Birmingham? 23 MR. BIRMINGHAM: I would join in Mr. Etheridge's 24 statement. 25 C.O. CAFFREY: And I, also, join in Mr. Etheridge's CAPITOL REPORTERS (916) 923-5447 2430 1 statement. You are correct, sir. You may proceed with the 2 case as you described in your opening statement, but before 3 you do that, assuming you are done, I was going to ask 4 Mr. Sandino if he wanted to make an opening statement as 5 well, then we could go to your witnesses. 6 MR. ETHERIDGE: I'm not quite done. 7 C.O. CAFFREY: Not quite done, go ahead, sir. 8 MR. ETHERIDGE: After Mr. Skinner describes EBMUD's 9 hydraulic model EBMUD SIM, Mr. Grace will follow with a 10 summary of his analysis of the temperature impacts of some 11 of the State Board flow alternatives. Dr. Hanson will, 12 then, summarize his analysis of the anadromous fishery 13 impacts of those flow alternatives. Following Dr. Hanson 14 Mr. Nuzum will outline his analysis of reservoir impacts of 15 the State Board flow alternatives. And, finally, Mr. Lampe 16 will describe the customer service area impacts. Mr. Lampe 17 will conclude with a description of East Bay MUD's 18 Mokelumne Settlement flows and what District offers in this 19 proceeding. 20 C.O. CAFFREY: Let me ask you this: How many modules 21 of witnesses are you going -- panels, if you will? 22 MR. ETHERIDGE: We have seven witnesses. And we have 23 compacted our case. And we believe we can put all seven on 24 in approximately an hour, an hour and 15 minutes. 25 C.O. CAFFREY: I'm sorry, I wasn't clear on what I CAPITOL REPORTERS (916) 923-5447 2431 1 was asking. Is it possible for you to put them all on as a 2 panel and, then, submit them to cross-examination as one 3 grouping? 4 MR. ETHERIDGE: Exactly. That's what we were going 5 to request the Board to do. Actually, you anticipated my 6 next question, you anticipated procedural questions. That 7 is what we propose to do. And we think we can be done in 8 approximately an hour to an hour and 15 minutes. 9 C.O. CAFFREY: So you're just limiting yourself by 10 the number of seats. 11 MR. ETHERIDGE: Exactly. 12 C.O. CAFFREY: That would be fine. 13 MR. ETHERIDGE: Okay. And I'll just conclude my 14 opening statement that we believe that a reasonable balance 15 and that the impacts and benefits of various flow 16 alternatives under consideration by the State Board for 17 EBMUD's responsibility under the Bay-Delta Water Quality 18 Control Plan should result in a finding that EBMUD's 19 settlement is the most reasonably balanced alternative that 20 is before you. Thank you. That concludes my opening 21 statement. I will now begin with Mr. Myers. 22 C.O. CAFFREY: Thank you, Mr. Etheridge. I apologize 23 for interrupting you a couple of times when I wrongly 24 anticipated you were done. Mr. Sandino, did you wish to 25 make an opening statement for this phase -- I mean for this CAPITOL REPORTERS (916) 923-5447 2432 1 case in chief? 2 MR. SANDINO: No, thank you. 3 C.O. CAFFREY: Thank you, sir. All right. You may 4 proceed with your witnesses's testimony, then, 5 Mr. Etheridge. 6 MR. ETHERIDGE: Thank you, Mr. Caffrey. 7 Mr. Myers, could you state and spell your name for 8 the record. 9 MR. MYERS: My name is Jon Myers, J-O-N, M-Y-E-R-S. 10 MR. ETHERIDGE: Is EBMUD Exhibit 1-D an accurate 11 summary of your qualifications? 12 MR. MYERS: Yes, it is. 13 MR. ETHERIDGE: And did you prepare EBMUD Exhibit 14 Number 2? 15 MR. MYERS: Yes, I did. 16 MR. ETHERIDGE: Could you, please, summarize that 17 testimony? 18 MR. MYERS: Yes, I'd be glad to. Good morning, 19 Chairman Caffrey and Members of the Board, I'm going to 20 summarize my written testimony which describes East Bay 21 MUD's Mokelumne River Project. And I'll be using a few 22 overheads that are figures from East Bay MUD's Exhibit 23 Number 2. 24 C.O. CAFFREY: As you do that, sir, it's very helpful 25 for the record if you would actually give the numerical CAPITOL REPORTERS (916) 923-5447 2433 1 citation of the exhibit as they come up on the screen. 2 MR. MYERS: I'll be glad to. 3 MR. MYERS: East Bay MUD serves 20 cities and 15 4 unincorporated communities in Alameda and Contra Costa 5 Counties. This includes the domestic water supply for 1.2 6 million people in the East Bay Area. Virtually all of East 7 Bay MUD's water comes from the Mokelumne River. This is 8 Figure 1 from East Bay Exhibit Number 2 which shows the 9 Mokelumne River in relation to the District's service area. 10 The Mokelumne is one of three rivers tributary to 11 the east side of the Delta. And it's a relatively small 12 river. As you can see here in Figure 2 of East Bay Exhibit 13 Number 2, the Mokelumne comprises only one-and-a-half 14 percent of the Delta's watershed. From this small 15 watershed the Mokelumne produces two-and-a-half percent of 16 the Delta's unimpaired inflow as I've shown here in Figure 17 3 of East Bay Exhibit 2. 18 With this resource, East Bay MUD serves about four 19 percent of the State's population. While it is a small 20 river, the Mokelumne serves many uses. We often refer to 21 it as "a hard working river." I've shown here in Figure 6 22 from Exhibit Number 2 the water users utilizing the 23 Mokelumne River. These include starting in the upper 24 reaches of the river PG&E, the Amador Water Agency, and the 25 Jackson Valley Irrigation District on the Amador County or CAPITOL REPORTERS (916) 923-5447 2434 1 north side of the river. 2 The Calaveras County Water District and the 3 Calaveras Public Utility District on the Calaveras side, or 4 south side of the river, East Bay Municipal Utility 5 District, and in San Joaquin County the North San Joaquin 6 Conservation District, the Woodbridge Irrigation District, 7 and several riparian and appropriative water users. 8 Besides these users the Mokelumne supports a significant 9 fishery, which is doing well. Mr. Vogel will be describing 10 this next. 11 In conclusion, while it's a small river the 12 Mokelumne serves a variety of uses. These include 13 agriculture, fishery, flood control, hydropower and 14 municipal and industrial use. The interdependence of these 15 uses and users is complex and has a long history. The 16 Mokelumne is an extremely valuable natural resource. And 17 East Bay MUD is making a significant effort to protect 18 those resources for the ecosystem, for recreation and for 19 water supply needs. That concludes my testimony. 20 MR. ETHERIDGE: Thank you, Mr. Myers. We'll next put 21 on Mr. David Vogel. Mr. Vogel, could you, please, state 22 and spell your full name for the record. 23 MR. VOGEL: Yes. My name is David Vogel, V as in 24 Victor, O-G-E-L. 25 MR. ETHERIDGE: And is, EBMUD Exhibit 1-G, an CAPITOL REPORTERS (916) 923-5447 2435 1 accurate summary of your qualifications? 2 MR. VOGEL: Yes, it is. 3 MR. ETHERIDGE: And did you prepare EBMUD Exhibit 4 Number 3? 5 MR. VOGEL: Yes. 6 MR. ETHERIDGE: Could you, please, summarize that 7 exhibit testimony? 8 MR. VOGEL: Yes, I will. My testimony presents an 9 overview of the status of the fishery resource in the Lower 10 Mokelumne River. The purpose of my testimony is to provide 11 the Board with essential background information on the 12 status and health of the Lower Mokelumne River fishery so 13 the Board can fully analyze the impacts its proposed flow 14 alternatives may have of that fishery resource. 15 Dr. Hanson, later in this presentation, will 16 describe the impacts to the fishery resource that would be 17 caused by some of the State Board's proposed flow 18 alternatives. Could I have the first overhead, please. 19 As shown in Figure 1 in EBMUD Exhibit 3, the 20 Mokelumne River, unlike many West Coast rivers, is 21 presently experiencing an increasing instead of decreasing 22 trend in salmon abundance. The past four years of salmon 23 runs in the Mokelumne River have been at or above the 24 long-term average annual escapement from 1940 to 1997. For 25 example, in 1997 we observed more than 10,000 salmon return CAPITOL REPORTERS (916) 923-5447 2436 1 to the Lower Mokelumne River which represents nearly three 2 times the historical averages escapement for the 1940 to 3 1997 period. Could I have the next overhead, please. 4 This is Figure 3 in EBMUD Exhibit 3. Although 5 in-river salmon escapement is, obviously, influenced by 6 Fish and Game's successful hatchery program on the 7 Mokelumne River, there has also been a recent increase in 8 natural spawner escapement as well. Could I have the next 9 overhead, please. This is Table 1 in EBMUD Exhibit 3. It 10 provides an overview of the District's Lower Mokelumne 11 River program over the last ten years. 12 Since 1997 -- excuse me, 1987 EBMUD conducted an 13 annual program to monitor, research, protect, and enhance 14 the Mokelumne River fish population and their habitats. 15 It's important to emphasize that these are not fragmented 16 program elements, but instead are comprehensive 17 encompassing all freshwater life phases of salmon. I won't 18 describe all these program elements here, because they're 19 described in my written testimony. But I would like to 20 emphasize though, that they encompass salmon upstream 21 migration, spawning, egg incubation, fry and juvenile 22 rearing, fry and juvenile outmigration as well as water 23 quality in the reservoir, hatchery, and the river itself. 24 Next overhead, please. This is Figure 5 in EBMUD 25 Exhibit 3. The geographic scope of EBMUD's programs in the CAPITOL REPORTERS (916) 923-5447 2437 1 entire Mokelumne River encompass the uppermost reaches 2 where the salmon spawn and rear all the way down through 3 the Delta where fish survival and fish migration projects 4 are conducted. Here in my verbal presentation I'll simply 5 point out two examples that are quite prominent and 6 successful in EBMUD's programs. 7 Next overhead, please. One example is EBMUD's 8 efforts to improve and replenish spawning habitats 9 downstream of Camanche Dam in the primary spawning breach 10 of the Lower Mokelumne River. Now much like all other 11 large Central Valley dams, the dam itself eliminated gravel 12 recruitment from upstream areas. However, EBMUD is 13 replenishing those spawning gravels by placing high quality 14 clean gravels in spawning areas. 15 For example, shown here in Figure 10 EBMUD Exhibit 16 3, which is a plan diagram of two gravel enhancement sites 17 and subsequent salmon usage in 1992, '94 and '96. As you 18 can see, salmon utilization of these sites as shown by the 19 dots denoted the presence of individual salmon reds or 20 nests have been quite extensive. 21 Next overhead, please. Figure 9 in EBMUD Exhibit 22 3 also demonstrates the increasing trend in salmon 23 utilization at four separate gravel enhancement sites. 24 Although this trend is partially attributable to increase 25 natural spawner escapement in recent years, salmon usage at CAPITOL REPORTERS (916) 923-5447 2438 1 these sites has the distinct advantage of not only 2 increasing the quantity of spawning habitat, but also the 3 quality of the habitat. This translates to increased 4 survivability of salmon eggs laid in the gravels. 5 I'll point out, also, that the CalFed and the 6 CVPIA programs have recently adopted this basic approach as 7 important compliments in the ecosystem restoration 8 programs. Next overhead, please. Another highly 9 successful EBMUD program element of the Lower Mokelumne 10 River is the research and monitoring of upstream and 11 downstream migration at Woodbridge Dam. This represents 12 one of the most intensive comprehensive fishery monitoring 13 projects among Central Valley rivers. The center of Figure 14 5 in EBMUD Exhibit 3 shows the location of Woodbridge Dam 15 where the upstream and downstream fish migration monitoring 16 occurs. 17 Next overhead, please. The upstream migration of 18 salmon which pass the dam is monitored 24 hours per day 19 using fish traps and surface and underwater video 20 monitoring equipment. Photos 1 and 2 shown here in EBMUD 21 Exhibit 3 show examples of chinook salmon captured at the 22 dam. Biological information on the salmon is recorded and 23 fish are then released alive so that they can continue 24 their upstream migration. 25 Next overhead, please. Also, juvenile salmon CAPITOL REPORTERS (916) 923-5447 2439 1 outmigration in the winter, spring and early summer is 2 monitored with fish traps installed at up to three sites at 3 Woodbridge Dam. These traps allow for reasonably accurate 4 estimation of the total production of naturally produced 5 fish in the Lower Mokelumne River. Photo 9 in EBMUD shown 6 here on the left in Exhibit 3 shows the tagging of wild 7 fish at Woodbridge Dam. 8 Wild fish are captured, tagged and released at the 9 dam, or in the Delta in a largely unprecedented type of 10 program among Central Valley rivers and streams. Photo 10 11 shown on the right here in the same exhibit shows our 12 biologists sampling spawning gravel in the river which is 13 described in detail in my written testimony. 14 Information developed from these programs is 15 invaluable towards guiding the District's and natural 16 resources agencies's restoration efforts on the Lower 17 Mokelumne River. These are just a few examples of the 18 District's program elements to monitor, research and 19 improve the fishery resource. The entire program is 20 described in my written testimony. 21 I would like to emphasize, also, that all of this 22 information is shared as the State Senator earlier 23 described with the Mokelumne River Technical Advisory 24 Committee, which is composed of the natural resource 25 agencies such as the Department of Fish and Game, U.S. Fish CAPITOL REPORTERS (916) 923-5447 2440 1 and Wildlife Service, National Marine Fishery Service as 2 well as many other Mokelumne River stakeholders. The 3 committee has met on a regular basis for the past decade to 4 coordinate the collection and review of scientific data 5 collected on the Mokelumne River. 6 Next overhead, please. In conclusion, referring 7 back to Figure 1 in EBMUD Exhibit 3, the Mokelumne River 8 fishery resource has been experiencing higher than average 9 escapements in recent years and is doing very well. 10 EBMUD's comprehensive program on the Lower Mokelumne River 11 has contributed to improving this resource. This 12 information provides the Board with valuable information to 13 evaluate potential affects of various flow alternatives on 14 that fishery resource. Potential impacts of various flow 15 alternatives on the resource will be discussed by 16 Dr. Hanson later in this presentation. Thank you. 17 MR. ETHERIDGE: Thank you, Mr. Vogel. I would like 18 to now put on Mr. John Skinner. Mr. Skinner, could you 19 please state and spell your name for the record. 20 MR. SKINNER: John Skinner, S-K-I-N-N-E-R. 21 MR. ETHERIDGE: And is EBMUD Exhibit 1-F an accurate 22 summary of your qualifications? 23 MR. SKINNER: It is. 24 MR. ETHERIDGE: And did you prepare EBMUD Exhibit 4? 25 MR. SKINNER: I did. CAPITOL REPORTERS (916) 923-5447 2441 1 MR. ETHERIDGE: Could you, please, summarize that 2 testimony? 3 MR. SKINNER: My testimony describes EBMUD SIM, the 4 District's hydrologic computer model of the Mokelumne River 5 system and presents the output from the model studies I 6 prepared for this proceeding. The District used the 7 results of these studies to assess the impacts on its 8 service area in the Mokelumne River resulting from the 9 State Board's staff's alternatives for implementing the 10 Delta outflow objectives in the 1995 Water Quality Control 11 Plan. These impacts are described in testimony presented 12 by subsequent District witnesses. 13 This is Figure 6 from Exhibit 2. And it shows the 14 system that EBMUD SIM simulates. EBMUD SIM simulates 15 operation of the District's Mokelumne River project under 16 present or future conditions. The model can analyze the 17 effects of changes in operating rules, or changes in system 18 facilities. It determines the resulting stream flow 19 reservoir levels and customer deliveries. 20 Monthly inflowed Pardee Reservoir is basic 21 hydrologic input used by EBMUD SIM to perform its 22 simulations. This inflow derived from the historic records 23 forms a 74-year sequence of data beginning with the year 24 1921 and ending in 1995. EBMUD SIM incorporates all of the 25 constraints governing the District's operation. It CAPITOL REPORTERS (916) 923-5447 2442 1 accounts for the upstream diversions, downstream 2 diversions, channel losses in the lower river and the 3 instream flow requirements. 4 The remaining water is available for storage or 5 delivery to East Bay MUD's customers. The model also 6 accounts for flood control operations. The combined 7 effects of the physical and operational constraints dictate 8 the resulting East Bay MUD SIM output for each condition 9 simulated. 10 Shown here on the screen is an excerpt from pages 11 two and three of Exhibit 4. I prepared EBMUD SIM model 12 studies for the following flow alternatives to this 13 proceeding. The first study I prepared depicts conditions 14 under the existing 1961 agreement between East Bay MUD and 15 the Department of Fish and Game for instream flow 16 requirements in the lower river. The results of this study 17 are in Appendix F of Exhibit 4. 18 The next study I prepared depicts conditions under 19 the recently signed Joint Settlement Agreement between East 20 Bay MUD, California Department of Fish and Game and U.S. 21 Fish and Wildlife. And these results are in Appendix G of 22 my testimony. The next three alternative -- studies depict 23 conditions under the State Board's staff's alternatives for 24 implementing the 1995 Water Quality Control Plan. 25 The first of these is staff's alternative three, CAPITOL REPORTERS (916) 923-5447 2443 1 that is the water rights priority approach that treats 2 deliveries to the Friant's service area as in-basin use. 3 And these results are in Appendix A. The next study is 4 alternative four, which is similar to alternative three, 5 but treats Friants as exports. The fifth study depicts 6 conditions under the watershed allocation approach. 7 All of these studies were performed at 1995 levels 8 of development. This level of development was used because 9 it represents the environmental reference conditions for 10 these proceedings as described in State Board's revised 11 notice of preparation for its environmental impact report. 12 In addition to these studies, I also prepared an analysis 13 of the incremental inflow to the Delta that results from 14 operating under the recently signed Joint Settlement 15 Agreement instead of the current 1961 California Department 16 of Fish and Game requirements. The results of this 17 analysis are in Appendix E of my testimony. This concludes 18 my oral testimony. 19 MR. ETHERIDGE: Thank you, Mr. Skinner. Mr. Caffrey, 20 if we could take one minute to switch people. 21 C.O. CAFFREY: Go right ahead. 22 MR. ETHERIDGE: Thank you. Mr. Caffrey, we will 23 resume now with Mr. Grace. 24 Mr. Grace, could you, please, state and spell your 25 full name for the record. CAPITOL REPORTERS (916) 923-5447 2444 1 MR. GRACE: My name is Robert E. Grace, R-O-B-E-R-T, 2 G-R-A-C-E. 3 MR. ETHERIDGE: Is EBMUD Exhibit Number 1-A an 4 accurate summary of your qualifications? 5 MR. GRACE: Yes. 6 MR. ETHERIDGE: And did you prepare EBMUD Exhibit 7 Number 5? 8 MR. GRACE: Yes. 9 MR. ETHERIDGE: Could you, please, summarize that 10 testimony? 11 MR. GRACE: I will be talking today about East Bay 12 MUD's operation of their reservoirs to provide typical 13 temperatures downstream. I will, then, look at an analysis 14 of the five alternatives and the impact that would have on 15 the downstream temperatures. And, then, I'll conclude with 16 the statement that the three Board alternatives will 17 increase the frequency of warm water discharges from 18 Camanche to the Mokelumne. 19 I have some illustration here that will help you 20 follow my testimony. They're not in my testimony, because 21 they add nothing to it. 22 MR. ETHERIDGE: If I could add a word there. We're 23 offering these for illustrative purposes only. We do not 24 intend to offer these into evidence. 25 C.O. CAFFREY: Mr. Birmingham? CAPITOL REPORTERS (916) 923-5447 2445 1 MR. BIRMINGHAM: I wonder if for purposes of the 2 record we can identify these by a number. And we would 3 have no objection if they're only illustrative that they 4 actually be included in the record and produced. 5 C.O. CAFFREY: That's appropriate. That would be 6 appropriate of what we have been doing in the other phases. 7 We would prefer that we number these. And, then, you can 8 offer them as exhibits when we consider your full 9 evidentiary package, Mr. Etheridge. 10 MR. ETHERIDGE: Okay. That's fine. Why don't we 11 call Mr. Grace's testimony EBMUD Exhibit Number 5. I know 12 he has appendices. Why don't we just start at M, as in 13 Mary, and we'll call it 5-M. Is that acceptable? 14 C.O. CAFFREY: Is that acceptable to the staff? 15 You're the ones that are going to be keeping track of all 16 this. 17 MS. LEIDIGH: Yes. 18 C.O. CAFFREY: 5-M would be fine. 19 MR. ETHERIDGE: Thank you. 20 MR. GRACE: East Bay MUD reservoirs Pardee and 21 Camanche are typical of medium depth warm-water reservoirs 22 that stratify in summer. They stratify into three levels 23 of warm, upper epilimnion, a thermocline which is an area 24 of rapid temperature transition, and a cool hypolimnion. 25 So for Camanche Reservoir, for instance, is 10 to 12 CAPITOL REPORTERS (916) 923-5447 2446 1 degrees centigrade in the winter. In around February March 2 it begins to stratify. The upper portion of 25 to 30 feet, 3 the epilimnion rapidly increases to 20 to 24 degrees and 4 the hypolimnion gradually increases as water is taken out 5 of the bottom of the reservoir to 15 or 16 degrees. In 6 late fall around November, the upper section cools and the 7 reservoir turns over and becomes constant temperature with 8 depth. 9 This is important for providing cool water to the 10 Mokelumne. East Bay MUD has developed a flexible 11 management system to maintain this stratification. And, 12 therefore, cool water to the Mokelumne during periods of 13 low flow. During normal periods, this is a normal 14 occurrence and flows to the Mokelumne are on the order of 15 12 to 16 degrees centigrade. 16 The operation rules depend -- the operation 17 depends on circumstances in any given year and are geared 18 to monitoring and -- a flexible management, but the rules 19 are simple. Maintain stratification in Camanche so you 20 have a cool pool of water to flow to the Mokelumne. 21 Valuation is shown that you need about 20 to 28,000 22 acre-feet of hypolimnion in Camanche. This corresponds to 23 about a total volume of 90,000 acre-feet. 24 You also need to maintain stratification in Pardee 25 so that you'll have a cool pool in Pardee to help maintain CAPITOL REPORTERS (916) 923-5447 2447 1 stratification in Camanche. Evaluation of this reservoir 2 shows you need about 100,000 acre-feet in Pardee to 3 maintain stratification in Pardee. So that gives three 4 conditions in Camanche Reservoir. The normal -- 5 MR. ETHERIDGE: Let me just for identification 6 purposes identify this as East Bay MUD 5-N as in Nancy. 7 C.O. CAFFREY: 5-N, thank you, Mr. Etheridge. 8 MR. GRACE: Three conditions, normal is a stratified 9 condition in the summer where you have more than 100,000 10 acre-feet in Pardee; more than 90,000 acre-feet in Camanche 11 and the temperature of the discharge is 12 to 16 degrees 12 centigrade taken from the hypolimnion of Camanche. 13 If Pardee drops below 100,000 acre-feet it becomes 14 unstable. And if Camanche drops below 90,000 acre-feet it 15 becomes unstable and is subject to destratification and 16 mixing. The temperatures will go up 16 to 20 degrees 17 depending on the amount of water in Camanche. The third 18 condition is if there's less than 10,000 acre-feet in 19 Camanche and less than 100,000 acre-feet in Pardee, the 20 whole of Camanche will be subject to surface meteorology 21 will be completely mixed. And the temperature of the 22 discharge will be on the order of 20 to 24 degrees C. 23 Next one. 24 MR. ETHERIDGE: And, again, for identification 25 purposes if we can identify this as EBMUD Exhibit 5-O. CAPITOL REPORTERS (916) 923-5447 2448 1 MR. BIRMINGHAM: Excuse me, Mr. Caffrey? 2 C.O. CAFFREY: Mr. Birmingham? 3 MR. BIRMINGHAM: Mr. Etheridge referred to both 5-N 4 and 5-O as, "this." I wonder if he could elaborate a 5 description on both 5-N and 5-O. 6 MR. ETHERIDGE: Certainly. 5-N is a chart that 7 shows -- it's an overhead showing three versions of the 8 reservoir. It's entitled, "Camanche Reservoir-Impact to 9 Volume on Reservoir Discharge Temperatures." And it has a 10 graphic of both stratified, unstable, and unstratified 11 conditions. And what we have identified as EBMUD 5-O is 12 entitled, "Camanche Reservoir-Condition under Five 13 Allocation Alternatives," and it has a table of numbers on 14 the left and then three graphics on the right. 15 MR. BIRMINGHAM: Thank you very much. 16 C.O. CAFFREY: Thank you for raising that, 17 Mr. Birmingham. It is important for the readers of the 18 record who are not here in the future to know what we're 19 talking about. 20 MR. ETHERIDGE: Certainly. 21 C.O. CAFFREY: Go ahead. 22 MR. GRACE: So we analyzed the output of EBMUD SIM 23 simulation of five alternatives over the 75-year record 24 that was described in John Skinner's testimony. This is 25 summarized in Exhibit 8 of my testimony and repeated here. CAPITOL REPORTERS (916) 923-5447 2449 1 This shows that -- to understand this, on the left-hand 2 side there are five columns: 1961 agreements, Joint 3 Settlement Agreement, water right priority number three and 4 water right priority number four and the watershed 5 allocation. The first two are East Bay MUD alternatives 6 and the next three are State Board alternatives. 7 We analyzed those to look at the volumes and to 8 see the impact on the temperature of discharges. And as 9 you can see the 1961 agreement would have two areas in 10 which there were elevated temperatures. The Joint 11 Settlement Agreement would have four. The water rights 12 number three would have eight. Water rights number four 13 would have ten. And the watershed allocation would have 20 14 periods during this record in which there were elevated 15 temperatures from Camanche to the Mokelumne. 16 MEMBER FORSTER: Excuse me. That's not very clear. 17 What you're saying is -- 18 MR. GRACE: I am sorry. I will go through it more 19 slowly. I'm sorry. 20 MEMBER FORSTER: What my point was is I hear what 21 you're saying, but I don't see what you're saying. 22 C.O. STUBCHAER: For instance, where does the ten 23 come from? Is that adding numbers together? 24 MR. GRACE: Yes, that's what I was doing. I was 25 rushing through it. Let me go through it a little more CAPITOL REPORTERS (916) 923-5447 2450 1 slowly. In 1961 there are 73 years in which there is 2 enough water in the system -- 3 MR. BIRMINGHAM: Excuse me. Perhaps the -- in 1961 4 it's under the 1961 -- 5 MR. GRACE: I'm sorry. 6 C.O. CAFFREY: Thank you. 7 MR. GRACE: Under the 1961 alternative there are 73 8 years in which there is enough water in the system for 9 Camanche to remain stratified, and the temperature of the 10 discharge to be 12 to 16 degrees centigrade. There is one 11 year in which the volume of Camanche is between 10 and 12 90,000 acre-feet. The temperature is -- the reservoir is 13 unstable. And the temperature will be 16 to 20 degrees 14 centigrade. And there is one year in which it would be 15 unstratified, less than 10,000 acre-feet. And the 16 temperature would be 20 to 24 degrees centigrade. 17 Under the joint settlement there would be 71 years 18 in which it remains stratified, cool temperatures. There 19 would be two years in which it would be unstable, warm 20 temperatures. And two years in which it would be 21 unstratified with warm discharge. 22 Under the water rights number three there would be 23 67 years in which it was stratified with cool discharges. 24 Four years unstable with warmer discharges. And four years 25 unstratified with higher temperature discharges. Under CAPITOL REPORTERS (916) 923-5447 2451 1 number four there would be 65 years stratified, 5 years 2 unstable and 5 years unstratified. Under the watershed 3 allocation there would be 55 years unstratified with cool 4 discharge, five years with unstable with warmer discharge; 5 and 15 years unstratified with warm discharge. 6 MR. ETHERIDGE: So, Mr. Grace, let me interpret a 7 moment. Earlier you were adding up, for instance, under 8 water right priority number four you said there would be 9 ten years where it would be unstable or unstratified. So 10 what you were doing is adding the five years of unstable 11 and five years of unstratified; isn't that correct? 12 MR. GRACE: I was adding unstable and unstratified 13 because those are both periods in which the temperatures 14 are elevated in the discharges to the Mokelumne. So the 15 conclusion from this analysis is that the State Board flow 16 allocation would result in an increase frequency of warm 17 water discharges from Camanche Reservoir to the Lower 18 Mokelumne River. The effects that such temperatures would 19 have upon the Lower Mokelumne River fishery are described 20 in EBMUD Exhibit 6, the testimony of Dr. Charles Hanson. 21 MR. ETHERIDGE: Thank you, Mr. Grace. I would like, 22 now, to put on Dr. Hanson. 23 Dr. Hanson, if you could please state and spell 24 your full name again for the record. 25 DR. HANSON: My name is Charles Hanson, H-A-N-S-O-N. CAPITOL REPORTERS (916) 923-5447 2452 1 MR. ETHERIDGE: And is EBMUD Exhibit 1-B an accurate 2 summary of your qualifications? 3 DR. HANSON: It is. 4 MR. ETHERIDGE: Did you prepare EBMUD Exhibit 6? 5 DR. HANSON: I did. 6 MR. ETHERIDGE: Could you, please, summarize that 7 exhibit testimony? 8 DR. HANSON: I will summarize EBMUD Exhibit 6. I'll 9 be using a series of overheads. I'll use the same 10 procedure that Mr. Grace used so that Mr. Etheridge can 11 identify each of these overheads for purposes of the 12 record. 13 As Mr. Vogel pointed out in his testimony, the 14 Lower Mokelumne River downstream of Camanche Dam supports 15 populations of both fall-run chinook salmon and steelhead. 16 The Mokelumne River fish hatchery also supports production 17 of both salmon and steelhead. The habitat conditions 18 within the Lower Mokelumne River in terms of their 19 suitability and availability for both salmon and steelhead 20 are influenced by a variety of environmental parameters. 21 Two of the most important are instream flows and water 22 temperatures conditions. 23 In my testimony this morning, which is summarized 24 in EBMUD Exhibit 6, I will be discussing the impacts of the 25 State Water Resources Control Board alternatives on the CAPITOL REPORTERS (916) 923-5447 2453 1 Lower Mokelumne River anadromous fisheries. The first 2 overhead that I'm showing is a listing of the five 3 alternative water allocation scenarios that were modeled in 4 the EBMUD SIM modeling as described in the testimony by Mr. 5 Skinner. 6 MR. ETHERIDGE: Mr. Caffrey, this, again, is an 7 overhead we offer for illustrative purposes. However, if 8 you would like we can identify it as we did with those in 9 Mr. Grace's testimony. 10 C.O. CAFFREY: This is an iteration of what's already 11 there. Does anybody feel the need to mark this as an 12 exhibit. I don't see anybody responding. If they do, you 13 can go ahead and consider this a table illustrative of what 14 we're all familiar with. 15 MR. ETHERIDGE: All right. Thank you. 16 DR. HANSON: For purposes of the impact assessment, 17 we utilized the results of EBMUD SIM model, which provides 18 information on average monthly flows at various locations 19 within the Mokelumne River. It also provides information 20 on water surface elevations on a monthly basis within both 21 Camanche and Pardee Reservoirs. 22 The information from that model was used to 23 evaluate potential impacts on fisheries associated with the 24 1961 agreement between CDF&G and EBMUD, the Joint 25 Settlement Agreement, the water right priority alternative CAPITOL REPORTERS (916) 923-5447 2454 1 three, the water right alternative four, and the watershed 2 allocation alternative five. 3 The next overhead that I'm showing identifies two 4 of the ways in which water right alternatives may influence 5 the fishery's habitat. The two ways that we'll be 6 discussing this morning include changes in seasonal 7 instream flow patterns as a result of releases from the 8 upstream impoundments down the Lower Mokelumne River to 9 meet within the Delta as well as seasonal water 10 temperatures within the Lower Mokelumne River downstream of 11 Camanche Dam. 12 Using the results of the EBMUD SIM modeling we 13 examine the relationship between flow and habitat 14 conditions for salmon and steelhead under the various 15 alternatives. What we found through that analysis was that 16 in some cases flows were higher in some years in some 17 alternatives; and in some years the flows were lower. 18 Overall, we did not identify a significant change in the 19 habitat conditions for salmon and steelhead among the five 20 alternatives that were included in this analysis. 21 As a result our evaluation of potential fisheries 22 impacts, then, we focused on the issue of changes in 23 reservoir operations and the resulting downstream 24 temperature conditions within the Lower Mokelumne River as 25 described in the testimony by Mr. Grace. CAPITOL REPORTERS (916) 923-5447 2455 1 C.O. CAFFREY: I'm thinking we may want to number 2 this exhibit. Do you agree, Ms. Leidigh? 3 MS. LEIDIGH: Yes. 4 C.O. CAFFREY: Yeah, this was different than the 5 illustrative chart from before. 6 MR. ETHERIDGE: That's fine. Why don't we, again, 7 since he does have, I believe, a couple of appendices to 8 his testimony start with the letter M as in Mary. And 9 identify this as EBMUD Exhibit Number 6-M. And the first 10 line of that reads, "SWRCB proposed alternative water 11 allocation strategies being considered for the Bay-Delta 12 system may directly affect," colon, and then there's two 13 subparagraphs. 14 C.O. CAFFREY: All right. Thank you, sir. 15 MR. ETHERIDGE: Thank you. 16 DR. HANSON: So my testimony will be focusing on the 17 effects of the changes in reservoir operation on downstream 18 habitat conditions as influenced by water temperatures. 19 I'll be utilizing information in that analysis that 20 combines both the results of the EBMUD SIM modeling that 21 Mr. Skinner described, and also the limnological analyses 22 that Mr. Grace described. 23 The next overhead identifies the potential for 24 adverse impacts on chinook salmon and steelhead that may 25 result from exposure to elevated water temperatures. In CAPITOL REPORTERS (916) 923-5447 2456 1 evaluating the potential affects of elevated water 2 temperature, we first considered the biology of chinook 3 salmon and steelhead. EBMUD has conducted a wide variety 4 of biological studies as described by Mr. Vogel. That 5 biological sampling has provided us information on the 6 seasonal timing, the life history stages, the geographic 7 distribution of salmon and steelhead within the river. 8 We also conducted a literature review to evaluate 9 the response of various life stages of salmon and steelhead 10 to elevated water temperature conditions. We then used the 11 combination between the timing of periods when water 12 temperatures would be elevated within the Lower Mokelumne 13 River and the biological information to identify the 14 species, or life stage that would be most vulnerable to 15 potential impacts. 16 As a result of these analyses we identified the 17 juvenile rearing stages for steelhead, which is over the 18 summer within the Lower Mokelumne River, as well as salmon 19 smolts that rear within the river and emigrate from the 20 Lower Mokelumne River during the late spring. We also 21 identified yearling salmon and steelhead which are reared 22 within the Mokelumne River hatchery as key target species 23 for purposes of our evaluation of potential impacts of 24 water temperature. 25 C.O. CAFFREY: Mr. Etheridge. CAPITOL REPORTERS (916) 923-5447 2457 1 MR. ETHERIDGE: For identification purposes, that 2 would be EBMUD 6-N, as in Nancy. It has three 3 subparagraphs. And the first sentence reads, "The 4 potential for adverse impacts on chinook salmon and 5 steelhead fisheries as a result of exposure to elevated 6 water temperatures is a function of," and it's followed by 7 the three subparagraphs. 8 C.O. CAFFREY: Thank you, sir. You might as well 9 describe each of these before Mr. Hanson talks about them 10 and I'll be less anxious. 11 MR. ETHERIDGE: All right. This will be EBMUD 6-O. 12 It also has three subparagraphs. Its opening sentence 13 reads, "Temperature ranges were analyzed from the 14 scientific literature for both salmon and steelhead life 15 stages present in the Mokelumne River during the May 16 through October period that are considered to be," colon, 17 and then there are three subparagraphs. 18 DR. HANSON: As part of our impact analysis I had 19 identified juvenile rearing within the river as being a 20 primary life stage of interest. Looking at the water 21 temperature conditions that occur coincident with that 22 juvenile rearing, the potential for elevated temperatures 23 was identified as being greatest during the late spring, 24 summer and early fall extending from May through October. 25 During the remaining portion of the year CAPITOL REPORTERS (916) 923-5447 2458 1 atmospheric temperature conditions are typically cold and 2 reservoir operations have less of an influence on 3 downstream temperatures. And, hence, were not included as 4 part of this analysis. 5 To help provide structure to the impact analysis 6 we utilized the information available from our literature 7 review to identify three general temperature-related 8 conditions for the river. Those would be temperatures that 9 were identified as providing suitable habitat conditions 10 for both juvenile salmon and steelhead. Those would be 11 conditions that provide for good growth for good survival, 12 for good food conversion efficiency, and for good disease 13 resistance within the hatchery. 14 We identified as our second category those 15 temperatures conditions that we thought would result in 16 potentially stressful conditions. These are sublethal 17 affects. They affect the physiology of the fish during 18 their rearing period. They affect their health and 19 condition. Their growth rates are influenced as is their 20 susceptibility to disease and other chronic affects. 21 Our third category was unacceptable conditions 22 which results in severe sublethal stress. It may result in 23 potential acute mortality, or it may result in the 24 exclusion of juvenile fish from available rearing habitat. 25 So we identified three general categories of temperature CAPITOL REPORTERS (916) 923-5447 2459 1 affects as part of our analysis. 2 MR. ETHERIDGE: This is already in Mr. Hanson's 3 testimony. It's table one which I believe is on page 18 of 4 his testimony, EBMUD Exhibit 6. 5 C.O. CAFFREY: Thank you, sir. 6 DR. HANSON: Table one identifies the temperature 7 criteria that we selected for each of the three general 8 temperature categories. Suitable temperatures were 9 identified as those ranging from 54 to 61 degrees 10 Fahrenheit. Stressful temperatures were identified as 11 those being greater than 61, but less than 68 degrees 12 Fahrenheit. And unacceptable temperature conditions were 13 those that were greater than 68 degrees. I'd like to point 14 out that these are identified as general temperature 15 guidelines for purposes of this environmental impact 16 assessment. 17 There is within the literature a variety of 18 responses of fish to specific water temperature conditions. 19 There are not clearly defined and consistent threshold 20 affects that clearly demarcate a suitable condition from a 21 stressful condition. So keep in mind that these are for 22 purposes of guidelines and for general ranges that we used 23 as part of this analysis. 24 MR. ETHERIDGE: This overhead that Mr. Hanson has 25 just put up, we'll identify as EBMUD 6-P, as in Paul. And CAPITOL REPORTERS (916) 923-5447 2460 1 it's entitled, "Fisheries impact criteria." 2 DR. HANSON: In evaluating the potential affects of 3 the various alternative flow strategies we not only wanted 4 to evaluate the magnitude of temperature affects, but we 5 also wanted to include as part of our analysis the 6 frequency and duration when adverse temperatures may occur. 7 We identified three general conditions that would 8 result in different levels of potential impact resulting 9 from exposure to adverse temperatures. Those being an 10 increase in the frequency of adverse temperatures that 11 would occur within an individual month within a year. If 12 the adverse temperatures occur in only a month, they would 13 affect only that portion of the population inhabiting the 14 river at that time. 15 The second category would be an increase in the 16 frequency of adverse temperatures that occur in consecutive 17 months within a year. That would affect a larger segment 18 of the juvenile fish rearing within the river for that 19 given year class. The third and most severe of the impacts 20 would be when adverse temperature conditions occur in 21 consecutive years and would affect multiple-year classes of 22 either salmon or steelhead. 23 MR. ETHERIDGE: We'll identify this table Mr. Hanson 24 put up as EBMUD 6-Q. And the first sentence reads, 25 "Frequency analysis of stressful and unacceptable CAPITOL REPORTERS (916) 923-5447 2461 1 temperature conditions within the Lower Mokelumne River 2 under alternative water allocation strategies." 3 DR. HANSON: This table is very similar in its 4 structure to the table that Mr. Grace presented in his 5 testimony. It identifies the number of years in which 6 either stressful or unacceptable conditions were identified 7 through the EBMUD SIM modeling and the reservoir analyses 8 under each of the five alternatives scenarios that were 9 examined. 10 Under the 1961 agreement there were 75 years 11 included in the hydrologic modeling. Of those, one year 12 was identified as providing stressful conditions within the 13 river; one additional year was identified as having 14 unacceptable conditions. Under the Joint Settlement 15 Agreement, again, there were 75 years included in the 16 modeling of which two years were identified as having 17 stressful conditions; and an additional two years were 18 identified as having unacceptable temperature conditions. 19 Underwater right alternative three, 74 years were 20 included in the modeling of which 4 years were identified 21 as having stressful conditions. And an additional 4 years 22 were identified as having unacceptable temperature 23 conditions for salmon and steelhead habitat. Under water 24 right alternative four, 74 years were included in the 25 analysis of which five years were identified as having CAPITOL REPORTERS (916) 923-5447 2462 1 stressful conditions; and an additional five years 2 identified as having unacceptable conditions. And the 3 final analysis was for the water right alternative five. 4 75 years were included in the analysis of which five years 5 were identified as having stressful conditions; and an 6 additional 15 years as identified as having unacceptable 7 conditions. 8 My final overhead is Exhibit B, which is taken 9 directly from EBMUD Exhibit 6. This is on page 27 and it 10 presents a more detailed summary of the analyses of our 11 temperature analysis. Shown on the left are each of the 12 individual years that were included in the analysis, with 13 the five alternative operational strategies shown across 14 the top. 15 Under the 1961 agreement you can see the two years 16 that were identified as being either stressful or 17 unacceptable in their temperature conditions. Under the 18 Joint Settlement Agreement you can see there are two years 19 identified as having unacceptable conditions and two 20 additional years that were identified as having stressful 21 conditions. Under the water right priority alternative 22 three, we found that there were three consecutive years 23 that had either stressful and/or unacceptable temperature 24 conditions. 25 Since salmon and steelhead typically have a CAPITOL REPORTERS (916) 923-5447 2463 1 three-year life span, although there's certainly variation 2 in that period within the population, adverse affects 3 within the rearing area in three consecutive years has the 4 potential to result in population level impacts. And under 5 the water right alternative three we identified one period 6 when those population level impacts may have occurred under 7 this modeling scenario. 8 Under the water right priority alternative four, 9 we identified two periods when we had three or more 10 consecutive years of adverse conditions that may have 11 resulted in population level impacts. And under the 12 watershed alternative we had four periods when population 13 level impacts may have resulted from the temperature 14 conditions included in this modeling analysis. 15 That concludes my testimony. The information is 16 provided to help you evaluate the various alternatives and 17 the results of changes in water allocation strategies on 18 fisheries as they influence -- as they're influenced by 19 changes in temperature conditions within the rearing areas. 20 C.O. CAFFREY: Thank you, sir. 21 MR. ETHERIDGE: Thank you, Dr. Hanson. Next we have 22 Mr. Nuzum. Would you, please, state and spell your name 23 for the record? 24 C.O. CAFFREY: Before you go on, Mr. Etheridge, 25 Ms. Forster has a question of Mr. Hanson. CAPITOL REPORTERS (916) 923-5447 2464 1 MR. ETHERIDGE: Sure. 2 MEMBER FORSTER: Go back to that Exhibit B, please. 3 You modeled all the years of things that have happened, 4 right, those are all the previous years. You tell what 5 happens in the model. In reality, have you chronicled that 6 all those things happened during those years? 7 DR. HANSON: No. And what I'm going to do is I'm 8 going to defer to the Mr. Skinner who is the appropriate 9 person in terms of the modeling. But briefing the modeling 10 utilizes historical hydrologic conditions, but then 11 superimposes on that different operating conditions as 12 would be applicable under the 1961 agreement, or the 13 watershed alternative in this particular scenario. 14 Based on the results of those analyses you, then, 15 are able to evaluate what kinds of conditions might occur 16 given the inputs and the assumptions that are included in 17 the model. These are not specific conditions that were 18 identified through monitoring within the Mokelumne River. 19 MEMBER FORSTER: So they don't relate to reality as 20 far as what's going on in the river. Like if you just 21 looked at 1990 to '95, that doesn't tell a story of what 22 really happened to the fish, that's just what you modeled 23 under the conditions given with all these factors? 24 DR. HANSON: Correct. 25 MEMBER FORSTER: So -- CAPITOL REPORTERS (916) 923-5447 2465 1 DR. HANSON: The 1961 agreement though, among all the 2 conditions that were modeled, most closely approximates 3 what actually occurred within the river, because during a 4 majority of the periods that were included in the 5 hydrologic modeling, or from at least 1961 on, the 1961 6 agreement was in effect where the other agreements have not 7 been implemented. They're hypothetical. They're designed 8 for comparative purposes only. 9 And their real strength I think is not so much in 10 their absolute ability to tell you this is the condition 11 that would occur in the river in a given month or a given 12 year, but rather since they're done on a comparative basis 13 to allow you to compare across alternatives to evaluate 14 trends and changes that would occur under these kinds of 15 hypothetical scenarios. 16 MEMBER FORSTER: One more question. When you started 17 out you gave a scenario where you looked at things and you 18 said it didn't make a difference, so therefore you went and 19 looked at temperatures. 20 DR. HANSON: Our first set of analyses, and quite 21 frankly I was somewhat surprised by this, our first thought 22 was that among the five alternatives that were included in 23 this modeling that there would be differences in seasonal 24 flow conditions that would occur among the different 25 alternatives that would adversely affect salmon or CAPITOL REPORTERS (916) 923-5447 2466 1 steelhead habitat conditions within the river, the 2 flow-base component of that habitat. 3 What we found was that there was a lot of 4 variability in the flows that occurred among the 5 alternatives. We did not identify a clear or a consistent 6 significant impact of any one of the alternatives that 7 distinguished it from the other four. And, hence, our 8 primary focus, then, shifted away from the flow habitat 9 relationship and more to the temperature habitat 10 conditions. 11 MEMBER FORSTER: Thank you. 12 C.O. CAFFREY: Mr. Etheridge. 13 MR. ETHERIDGE: Thank you, Mr. Caffrey. I'd just 14 like to put on Mr. Nuzum. 15 Mr. Nuzum, if you could just state and spell your 16 name for the record. 17 MR. NUZUM: Yes. My name is Robert Nuzum. N as in 18 Nancy, U-Z-U-M. 19 MR. ETHERIDGE: Is EBMUD Exhibit 1-E an accurate 20 summary of your qualifications? 21 MR. NUZUM: It is. 22 MR. ETHERIDGE: And did you prepare EBMUD Exhibits 7 23 and 8? 24 MR. NUZUM: Yes, I did. 25 MR. ETHERIDGE: Could you, please, summarize that CAPITOL REPORTERS (916) 923-5447 2467 1 testimony? 2 MR. NUZUM: Yes. Just for clarification for the 3 Board I would like to begin with Exhibit Number 8. And if 4 I can have the first figure. This is Figure 1 from Exhibit 5 8. I want to point out to the Board as has been shown 6 already, but I want to try to emphasize the fact that the 7 Mokelumne is a small Delta tributary. 8 And here you can see in Figure 1 that based on the 9 watershed area the Mokelumne drains just 1.5 percent of the 10 Delta. In the total Delta area if you add all those up 11 there is 42,910 square miles. And here we're just a small 12 component of that. And, then, as it is shown in here 13 Figure Number 2, this again is from Exhibit 8. And once, 14 again, this is historical unimpaired flow. And here you 15 see the Mokelumne at 2.5 percent at 702,000 acre-feet. Out 16 of a total of inflow to the Delta unimpaired of 20,925,000 17 acre-feet. 18 In addition to what you see in these two figures, 19 the State Water Resources Control Board Draft EIR for this 20 proceeding also notes the relatively small size of the 21 Mokelumne River. And the Draft EIR states that the east 22 side streams, of which the Mokelumne is one and only a 23 part, and the other major east side streams being the 24 Consumnes and the Calaveras Rivers, are a -- and I will, 25 quote, "Comparatively small source of Delta inflow," end CAPITOL REPORTERS (916) 923-5447 2468 1 quote. And that's found in the DEIR on page Roman Numeral 2 6-2. And it's quoted in page 5 and 6 of my testimony in 3 East Bay MUD Number 8. 4 Sean, if I could have number three. There has 5 also been some interest in the Mokelumne River having some 6 affect on the water quality standard stations at Rio Vista 7 or Vernalis. Here you can see -- if you can see it, I 8 can't see it. I lost my pointer. That is the Rio Vista 9 station. This is the Vernalis water quality station. This 10 is the Mokelumne River. In the Mokelumne River you reach 11 the tidal area of the Delta where the legal Delta which is 12 shown over here along the edge. All of this is, then, 13 tidal and you can see that the Mokelumne River would have 14 basically little or no affect on the Rio Vista station and, 15 certainly, no impact on the Vernalis water quality station 16 which is many, many miles to the south on the San Joaquin. 17 So in summary for Exhibit Number 8, the Mokelumne 18 River, again, is a very small river with a limited ability 19 to affect Delta conditions. Yet, some of the proposed 20 State Water Resources Control Board flow alternatives could 21 cause substantial adverse impacts on the Lower Mokelumne 22 River fishery, as Dr. Hanson has just testified. And it 23 could also have those same types of affects on East Bay 24 MUD's Pardee and Camanche Reservoir fisheries and 25 recreation resources, which I will now describe for you. CAPITOL REPORTERS (916) 923-5447 2469 1 This is, now, from East Bay MUD 7 and it's the 2 fisheries and recreation aspects. Could I have the first 3 one, Sean, please? This shows Camanche Reservoir. Pardee 4 Reservoir is above Camanche Reservoir. From Camanche Dam 5 to Pardee Dam is a distance of about ten miles -- 6 MR. ETHERIDGE: I just want to point out for the 7 record that Mr. Nuzum has put up Figure 1 from his 8 testimony, EBMUD Exhibit Number 7. 9 C.O. CAFFREY: Thank you. 10 MR. NUZUM: The distance downstream from Camanche Dam 11 to the Delta is a distance of about 29 miles, urban miles. 12 I want to point out, too, that both of these reservoirs 13 have valuable fishery resources and that together they 14 provide over 100,000 angler days per year. Each of these 15 reservoirs are stocked by East Bay MUD and by California 16 Department of Fish and Game. And I would also like to 17 point out that Pardee Reservoir has 21 species of fish; 18 Camanche Reservoir has 25 species of fish. This is a 19 blowup of both of those reservoirs. And first -- 20 C.O. CAFFREY: Let the record show it's Figure 2 of 21 Exhibit 7. 22 MR. NUZUM: Yes, sir, it is. Sorry. 23 MR. ETHERIDGE: One step ahead of us, Mr. Caffrey. 24 C.O. CAFFREY: Sorry if I testified. 25 MR. NUZUM: Again, this is Pardee Reservoir. And at CAPITOL REPORTERS (916) 923-5447 2470 1 the far wing of the reservoir is the Pardee recreation 2 area. This is Camanche Reservoir down here. This is the 3 south shore recreation area; the north shore recreation 4 area. And this area right here that is outlined is the 5 Camanche hunting preserve. That's the area where we allow 6 bird hunting at Camanche Reservoir. And that area that was 7 denoted by that crosshatched line is about -- encloses 8 about 1500 acres of property. 9 In addition, down here below is where Camanche Dam 10 is in the Mokelumne River, or the Lower Mokelumne River 11 begins. We have the Mokelumne River fish hatchery right at 12 the base of Camanche Dam. And immediately adjacent to that 13 is the Mokelumne River day-use area, which you'll find 14 referenced in the testimony. 15 To summarize, the uses that go on at most of these 16 recreation areas are we have day use and overnight use with 17 full-support facilities. Those facilities would include 18 campgrounds, extensive picnic areas, recreational vehicle 19 areas, mobile homes at both the south shore and north 20 shower, Camanche stores, restaurants, marinas, service 21 stations, et cetera. And I have also described that we do 22 have the 1500-acre bird hunting area at north shore 23 Camanche. Altogether, we have about 500,000 visitors per 24 year that utilize the facilities that I've just described 25 and which you'll find in my written testimony. CAPITOL REPORTERS (916) 923-5447 2471 1 In summary, Pardee and Camanche Reservoirs are 2 important regional recreation resources for Amador, 3 Calaveras and San Joaquin Counties. And I would also like 4 to point out for the Board that East Bay MUD has provided 5 these resources for more than three decades and through 6 several severe drought periods that we all saw in '75, '76 7 and '77; and more recently in the late '80s and into the 8 '90s. The State Water Resources Control Board flow 9 alternatives would seriously impact these natural resources 10 and recreation facilities; and, thereby, reducing the 11 public's opportunity for recreation. 12 In order to analyze the reservoir fishery and 13 recreation impacts of the State Board's alternative three, 14 four, and five, which have been previously described, I 15 took the EBMUD SIM output that modeled the 1961 California 16 Department of Fish and Game and East Bay MUD agreement as 17 it was amended into the '70s. And I also took a look at 18 East Bay MUD's proposed settlement agreement and the State 19 Board's alternatives three, four, and five. 20 I, then, chose what I believed to be the most 21 critical surface elevations at these two reservoirs at 22 which there are clearly significant impacts. What we, 23 then, decided was that at Pardee Reservoir, and you'll find 24 this on page 17 in the testimony of East Bay MUD Exhibit 25 Number 7, was that that elevation is 500 feet in Pardee. CAPITOL REPORTERS (916) 923-5447 2472 1 And I would like to explain to the Board that Pardee spills 2 at 567. So we're talking about a drawdown of 67 feet at 3 Pardee. The elevation I selected for Camanche was 160 4 feet. Camanche spills at 235 feet of elevation. So we're 5 looking at a 75-foot drawdown at Camanche. Those were the 6 extremes. 7 I believe that this is a conservative approach. 8 If anything, it underestimates impacts, because as a 9 reservoir level drops you gradually lose facilities. In 10 other words, it doesn't always happen all at once. For 11 example, boat ramps have become unusable. And there are 12 actually impacts at much higher elevations then what I've 13 described. For example, Camanche is subject to 14 destratification as has been mentioned here by Mr. Grace 15 and the cold water habitat is seriously depleted at 16 elevation 514. And, yet, our cutoff here for this 17 particular analysis was elevation 500, or 14 feet less. 18 But at the reservoir levels that I did choose, I 19 think it is beyond a doubt there are impacts on fisheries. 20 There are impacts on wildlife. And there are serious 21 impacts on recreation. I chose, again, elevation 500 at 22 Pardee, and elevation 160 at Camanche to be sure I was 23 dealing with truly significant impacts. I also used this 24 analytical approach with all the alternatives so that all 25 of the alternatives were treated equally. CAPITOL REPORTERS (916) 923-5447 2473 1 My analysis shows increased frequency and duration 2 under the State Water Resources Control Board alternatives. 3 Again, you can refer to pages 18 through 21 of my written 4 comments. But I would like to put up table ten, if I 5 could, just to show you an example. This is table ten out 6 of Exhibit 7. This is a summary of the Camanche Reservoir 7 fishery and recreation impacts based, again, on the 8 500-foot elevation for Pardee; and here at Camanche the 9 160-foot elevation. 10 On the left you'll see the years that were 11 modeled. The second column is the 1961 agreement and its 12 amendments; then, the settlement agreement; then, the State 13 Board's alternative three followed by four and over on the 14 right the watershed allocation alternative. You'll see the 15 impacts as indicated by the bars for 1961 being far less 16 than those that you will see for the settlement agreement 17 that we are recommending to the State Board and also far 18 less than the impacts associated with State Board's 19 alternatives three, four and five. 20 I have prepared a summary table which -- if you'll 21 put that up, Sean, summarizes what you will find in table 22 nine and ten. This is, however, not in the testimony so -- 23 MR. ETHERIDGE: For identification purposes we'll 24 identify this as EBMUD Exhibit Number 7-M as in Mary. And 25 it is, as Mr. Nuzum said, a tabular summary of the table he CAPITOL REPORTERS (916) 923-5447 2474 1 previously put up. 2 C.O. CAFFREY: Thank you, sir. 3 MR. NUZUM: As it says, this is a frequency of 4 extreme drawdowns when we would not have any doubt about 5 seeing serious impacts to the reservoir fishery and/or 6 reservoir recreation and to wildlife. You'll see here the 7 1961 agreement. We did have impacts like that at Pardee 8 over -- over the course of the record some 75 years, three 9 times, at Camanche four times. The Joint Settlement 10 Agreement, that, now, increases from three to five at 11 Pardee and goes up at Camanche. And for the water rights 12 priority alternative three you now see a very similar level 13 of impact at Pardee, of five, but now at Camanche the 14 impacts have increased to nine times during the period of 15 record. 16 Water rights priority alternative four we've now 17 doubled the level of impact that we saw previously at 18 Pardee from 3 to 6. And from Camanche we have increased 19 from 4, from the 1961 agreement, to 10. And for the 20 watershed allocation we have gone from 3 to 16, and at 21 Camanche from 4 to 25 years. 22 In conclusion, I believe that the severe drawdowns 23 at Pardee and Camanche Reservoirs have occurred only 24 occasionally in the past and, then, during naturally 25 occurring and severe drought periods. And, secondly, that CAPITOL REPORTERS (916) 923-5447 2475 1 the proposed State Water Resources Control Board flow 2 alternatives would increase the frequency of such drawdowns 3 causing fishery, wildlife, and recreation impacts. And, 4 importantly, these impacts occur often in consecutive years 5 and they are so severe as to cause what I believe to be 6 population level impacts to the anadromous species in the 7 Lower Mokelumne River, which has also been indicated by 8 Dr. Hanson's testimony. 9 MR. ETHERIDGE: Thank you, Mr. Nuzum. Mr. Caffrey, I 10 notice it's a few minutes before 12:00. We just only have 11 one witness left, but I believe it will take the full 20 12 minutes. I don't know what your pleasure is, to go now or 13 wait until after lunch? 14 C.O. CAFFREY: Let me ask: Mr. Sandino, you are 15 going to present Mr. Russell again with this panel? 16 MR. SANDINO: Yes, I am. 17 C.O. CAFFREY: We can take a lunch break now and come 18 back at 1:00 o'clock and we'll continue with this panel and 19 with Mr. Sandino. 20 (Luncheon recess.) 21 ---oOo--- 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 2476 1 THURSDAY, AUGUST 6, 1998, 1:01 P.M. 2 SACRAMENTO, CALIFORNIA 3 ---oOo--- 4 C.O. CAFFREY: All right. We're back on the record. 5 MR. ETHERIDGE: Thank you, Mr. Chairman. 6 C.O. CAFFREY: This is the continuation of Phase IV. 7 Mr. Etheridge, you have one more witness and then we'll go 8 to Mr. Sandino. 9 MR. ETHERIDGE: Thank you, Mr. Caffrey. I would like 10 to put on Mr. John Lampe. 11 Mr. Lampe, could you state and spell your full 12 name for the record? 13 MR. LAMPE: John Lampe, L-A-M-P, as in Paul, E. 14 MR. ETHERIDGE: Is East Bay MUD Exhibit Number 1-C an 15 accurate summary of your qualifications? 16 MR. LAMPE: Yes, it is. 17 MR. ETHERIDGE: Did you prepare East Bay MUD Exhibit 18 Numbers 9 and 10? 19 MR. LAMPE: I did. 20 MR. ETHERIDGE: Could you, please, summarize those 21 exhibits? 22 MR. LAMPE: Yes. Thank you. Mr. Caffrey, Members of 23 the Board, I'm happy to accept this challenge to try to 24 keep us awake shortly following lunch today and to do so by 25 starting with a demonstration of District's efficient use CAPITOL REPORTERS (916) 923-5447 2477 1 of water. So the topic is a challenging one to keep you 2 awake, 3 I think. That is the subject of my Exhibit 9. Also, as a 4 part of Exhibit 9 testimony I will demonstrate the impacts 5 of the State Board alternatives on the District's 6 customers. 7 To begin with this is a map, Figure 1 from Exhibit 8 9 of my testimony. It's very similar to a map which you 9 saw earlier in Mr. Myers's presentation. He focused on the 10 Mokelumne River portion at the top of the map. I'm 11 focusing now on the District service area, which is shown 12 in enlarged form here at the bottom of this plate. As you 13 can see the District's 1.2 million service-area population 14 is distributed from the south from San Lorenzo in Castro 15 Valley to the north to Pinole and Crockett and from the 16 west Alameda and Oakland, to the east over to Walnut Creek, 17 Alamo, Danville and San Ramon. Thank you, Sean. 18 This Figure 2, also, from Exhibit 9 shows the most 19 recent 35-year history of the District's account growth and 20 the customer demand in the District service area. What can 21 be seen here is from 1961 to 1996 relatively steady account 22 growth within the East Bay MUD Municipal Utility District 23 area. But as opposed to that relatively consistent account 24 growth, this chart demonstrates that up to the late 1960s 25 and very early 1970s when industrial process changes began CAPITOL REPORTERS (916) 923-5447 2478 1 to occur within the service area, the District's 2 consumption, essentially, paralleled account growth. 3 But at that time in the late '60s and early '70s 4 significant reductions in unit demand within the District 5 began to occur. The next significant event on the 6 consumption curve is the impact of the 1976/'77 drought. 7 As it can be seen it was quite extensive and dramatic 8 within the East Bay MUD's area. In fact, that represents 9 about 39 percent rationing, or conservation during that 10 significant drought period. 11 As you can see the customer -- demand although 12 account growth was continuing to increase, customer demand 13 did not fully rebound from the 1976/'77 drought until, 14 essentially, the beginning of the most recent drought 15 events in 1986. So during that substantial period of time 16 the unit reduction of water use per capita of reduction, if 17 you will, was quite substantial within the District's 18 service area. So already a substantial amount of 19 conservation has occurred within the District. 20 The next portion of the chart, essentially, 21 demonstrates what happened during the most recent drought 22 event. A significant point there is that even though, 23 particularly during 1988, very significant impacts occurred 24 within the District's service area, the District was not 25 able to achieve the same level of rationing in 1988 as it CAPITOL REPORTERS (916) 923-5447 2479 1 was able to achieve back in '76/'77. It simply wasn't 2 there to be achieved. It had already been taken out of the 3 system over this period. 4 C.O. STUBCHAER: Mr. Chairman? 5 C.O. CAFFREY: Yes, Mr. Stubchaer. 6 C.O. STUBCHAER: Has the number of persons per 7 account changed during this time period? 8 MR. LAMPE: Yes. The number of persons per account 9 has changed and is forecast to change again in the future. 10 Household size is getting -- 11 C.O. STUBCHAER: Smaller? 12 MR. LAMPE: -- smaller in the service area, correct. 13 What's shown in this chart is where we go from the most 14 recent history in terms of our forecast -- 15 MR. BIRMINGHAM: Excuse me, for purposes of the 16 record can we identify this as Table 10 from exhibit -- 17 MR. LAMPE: 9. 18 MR. BIRMINGHAM: -- 9? 19 MR. LAMPE: I apologize. 20 C.O. CAFFREY: Thank you, Mr. Birmingham. I'm sure 21 you gentlemen were just about to do that. 22 MR. LAMPE: We will do it in the future. 23 C.O. CAFFREY: I'm sure you'll hear from 24 Mr. Birmingham, again, possibly before you hear from me. 25 MR. LAMPE: What this chart demonstrates is the CAPITOL REPORTERS (916) 923-5447 2480 1 projection of increase in District demand into the future. 2 And one of the main drivers here is the one which 3 Mr. Stubchaer pointed out. There is a reduction in the 4 household size within the service area. And that's 5 forecasted to continue well into the future. But that's 6 only one of the aspects of the impacts here. 7 The District service area is expected to increase 8 in total population by about 8 or 9 percent over this 9 period, and substantial increase in employment growth as 10 well. If we were to continue to use water into the future, 11 and this chart goes through the year 2020, the way we used 12 it in 1984/'85 before the most recent drought events, we 13 would forecast that our customer demand would go from about 14 230 million gallons per day in 1995, through 2020, an 15 increase to 277 million gallons per day. That would be the 16 expected increase in customer demand. 17 Our actual planning level of demand is shown at 18 the bottom of this chart. And that shows that by the year 19 2020 we really expect our demand to be at 228 million 20 gallons per day. That is only about 4 percent beyond what 21 our actual demand was in 1990, normalized demand in 1990. 22 The way we were able to curtail our planning 23 forecast of demand is through aggressive conservation and 24 reclamation programs. And that information provides detail 25 on the majority of that chart. And, essentially, to CAPITOL REPORTERS (916) 923-5447 2481 1 summarize that quickly, in terms of things like natural 2 replacement of ultra low-flow low toilets and things 3 substantial impact in terms of our additional conservation 4 programs, which I'll speak to, another 16 million-gallon 5 per-day reduction, and then again another 6 already on line 6 with 8 million gallons per day reduction associated with 7 reclamation programs. 8 So we are already planning for, have programs in 9 place, which I'll spend just a minute going through with 10 you, to reduce our forecasted demand from 277 million 11 gallons a day to 228 million gallons a day by the year 12 2020. Next graph, please. 13 MR. ETHERIDGE: Just to note before Mr. Lampe starts 14 on this, this is recreated from his testimony EBMUD Exhibit 15 Number 9, pages 1 through 3 of that testimony. 16 MR. LAMPE: It's a faithful reproduction of, 17 essentially, the bulletin points on pages 1, 2 and 3 of 18 Exhibit 9. And I will not take the time to go through each 19 of these components at the present time. I would like to 20 focus on a couple items. The first is the drought 21 management program. 22 As I mentioned earlier I believe this District is 23 somewhat unique in that its policy is that during 24 substantial drought events, like the 1976/'77 drought the 25 most recent drought, particularly 1988 in that series, this CAPITOL REPORTERS (916) 923-5447 2482 1 District has a policy of rationing its District customers 2 up to 25 percent. And that is built into our planning for 3 adequate water supplies for District customers. 4 The District has a substantial cauldron of water 5 waste regulations, landscaping standards, and other 6 programs which form the basis of our confidence that we 7 will be able to reduce our customer demand through 8 conservation from that 277 million gallons a day down to at 9 least 228 million gallons a day that I showed you on the 10 previous chart. The District, it is engaged in a number of 11 innovated programs as well. We are one of a very few 12 agencies that is working with the Department of Water 13 Resources to evaluate the potential for greater water 14 retrofit within urban areas. I think we're one of three 15 agencies to be involved in that program. 16 We have comprehensive audit programs. We have 17 substantial incentive programs. A majority of the 18 calculated water savings that we expect are related to 19 these incentive programs here. Our program enjoys 20 substantial recognition nationwide. The most recent 21 example of that is the 1997 USBR recognition of our 22 conservation program efforts and effectiveness. 23 And as I mentioned earlier, our water reclamation 24 program where we've already achieved over 6 million gallons 25 a day and are planning for an additional 8 million gallon CAPITOL REPORTERS (916) 923-5447 2483 1 per day reduction there and our ongoing activities 2 associated with water distribution system to maintain our 3 system's current low level of lost water. We run at about 4 eight to nine percent which is very low in relation to most 5 other municipal agencies across the country in terms of 6 unaccounted for water. That's related to our aggressive 7 corrosion control program's leak detection programs and 8 pipe replacement programs. 9 Even so, with the substantial conservation and 10 reclamation programs, the demand reductions that I've 11 reviewed with you, the District does have a need for 12 substantial additional water supplies in future droughts. 13 That is, I'm reminded, Figure 4 from Exhibit 9. And what 14 is shown here is our need for additional water in 2020. In 15 the year 2020, that's our forecast condition, of 180,000 16 acre-feet. And that additional supplemental supply assumes 17 that we will be rationing customers in a future drought at 18 that 25-percent level that I reviewed with you earlier. 19 The reasons that the District will still have a 20 need for that water over a three year future drought is, of 21 course, associated with the natural hydrology of the 22 Mokelumne River, the diversions of senior entities on the 23 Mokelumne, the annual Mokelumne River fishery release. 24 Right now our release requirement is 13,000 acre-feet. 25 What's shown here is the minimum 23,000 acre-feet CAPITOL REPORTERS (916) 923-5447 2484 1 associated with the settlement agreement that we bring to 2 the Board today. 3 I wish to apologize, there was an error in the 4 plate, in my Exhibit 9. This should be -- it was noted as 5 a thousand acre-feet. It should be noted as a million 6 gallons per day. And, again, obviously a large component 7 that is taken into account in determining future need is 8 the customer demand. And as I reviewed with you it's 9 reduced from 277 down to 228 based upon our conservation 10 reclamation efforts. 11 The drought sequence that we use for our planning 12 is a reoccurrence of the 1976/'77 drought event followed by 13 a third dry year as opposed to the wet year which, in fact, 14 followed in 1978. And, again, our reliance on being able 15 to obtain up to 25-percent rationing from our District 16 customers during such an event. Okay. 17 Next chart, please. And this is Table 12 from 18 Exhibit 9. What is shown here, in a format similar to that 19 which has been used to present to you the impacts on the 20 Mokelumne River fishery, is a summary chart of the impacts 21 on District customers of the various alternatives. What is 22 shown here is our current requirement, the 1961 agreement. 23 With that agreement in place, and if we were to have 1995 24 conditions, we would -- but over the last 75 years of 25 hydrology, we would expect to be rationing our District CAPITOL REPORTERS (916) 923-5447 2485 1 customers about 8 years out of 75 at 15 percent or greater. 2 That's a very substantial rationing level for our 3 District particularly given the conservation reclamation 4 programs I've reviewed. We would have 25 percent or 5 greater deficiencies in 2 out of those 75 years. And 6 quickly set 25 percent District-wide rationing translates 7 into 35 percent rationing for single-family customers, 8 40-percent reductions for major irrigators. And we have to 9 increase those levels to get an average 25 percent so that 10 the economic sector, the commercial and industrial sector 11 isn't so impacted that we lose the economy entirely within 12 the region. 13 What is shown here in the second tier is the Joint 14 Settlement Agreement. That is, essentially, the same flows 15 that we have in the settlement Memorandum of Understanding 16 with the CUWA Ag Exporters. That would increase the 17 15-percent deficiencies from 8 to 12, and the 25-percent 18 deficiencies from 2 to 3. And what is shown, and I can't 19 go through it in detail because time is short, the impact 20 of the Board's alternatives three, four and five. You can 21 see the increases in the 15 percent, but more specifically 22 the significant increases in the 25-percent deficiencies 23 such that we'd be rationing District customers 24 significantly once out of every three years in the future; 25 and about once out of every four years in the future under CAPITOL REPORTERS (916) 923-5447 2486 1 the State Board alternative five approach. That concludes 2 my presentation of Exhibit 9. 3 C.O. CAFFREY: All right. Thank you, sir. 4 MR. ETHERIDGE: Yes. He has one more exhibit. 5 Exhibit 10, it's the final East Bay MUD exhibit. 6 Mr. Lampe, did you prepare East Bay MUD Exhibit 7 10? 8 MR. LAMPE: I did prepare it. 9 MR. ETHERIDGE: Would you, please, summarize that 10 testimony? 11 MR. LAMPE: I can. Sean, go ahead and put that chart 12 up. I've referred in my earlier discussion to East Bay 13 MUD's existing release requirements. Our existing release 14 requirement is associated with the 1961 agreement. And I 15 should -- I suppose I should mention that this series of 16 charts is largely a summation of the written testimony in 17 Exhibit 10. 18 MR. ETHERIDGE: We can leave it up to the Board's 19 discretion, we can identify these -- 20 C.O. CAFFREY: Let's give it a number since I'm 21 assuming it covers a bunch of narrative. 22 MR. ETHERIDGE: Right. It is -- all the material is 23 based on East Bay MUD Exhibit 10. 24 C.O. CAFFREY: Right. But to keep it consistent -- 25 MR. ETHERIDGE: Sure. Why don't we identify this as CAPITOL REPORTERS (916) 923-5447 2487 1 EBMUD Exhibit 1-M, as in Mary. And it's entitled, "EBMUD's 2 existing release requirement." 3 C.O. CAFFREY: Thank you, Mr. Etheridge. 4 MR. LAMPE: East Bay MUD existing release requirement 5 is, as indicated here, based upon the 1961 agreement 6 between the District and the Department of Fish and Game. 7 Our State Water Resources Control Board water rights 8 require meeting that '61 agreement. And our current FERC 9 license also embodies the same agreement requirement. 10 Consequently, our existing release requirement and the 11 requirement since 1961 and through the entire environmental 12 reference period for this proceeding is the 1961 agreement. 13 MEMBER BROWN: Mr. Chairman? 14 C.O. CAFFREY: Mr. Brown. 15 MEMBER BROWN: Mr. Lampe, that 1961 agreement, if I 16 remember right, the water for fisheries was 13 or 17,000 17 acre-feet? 18 MR. LAMPE: 13,000 acre-feet, yes, sir. 19 MEMBER BROWN: And it's been upped a couple, three 20 times since then. What are you up to now? 21 MR. LAMPE: What we're currently trying to release is 22 the flows that are contained within the settlement 23 agreement we have before you today. But our current 24 requirement is still 13,000 acre-feet. We have been 25 voluntarily flowing the increase flows to demonstrate the CAPITOL REPORTERS (916) 923-5447 2488 1 positive fishery benefits of that flow regime, but it's 2 been a voluntary release. 3 MEMBER BROWN: You have been up to close to 50,000 4 acre-feet feet, haven't you, voluntarily? 5 MR. LAMPE: Depending on the water year type we have 6 actually been beyond that. The minimum flow is 23,000 7 acre-feet. 8 MEMBER BROWN: Thank you. Thank you, Mr. Chairman. 9 MR. LAMPE: And I'll have some additional materials 10 here that I think will reinforce, or remind us of that in 11 just a second. The primary provisions of the Bay-Delta 12 settlement agreement is -- or -- 13 MR. ETHERIDGE: I'm sorry. Why don't we identify 14 this as EBMUD Exhibit 10-N, as in Nancy. And it's 15 entitled, "Primary provisions for Bay-Delta settlement 16 MOU." 17 C.O. CAFFREY: You have about four minutes left. 18 MR. LAMPE: I will go through this, then, quickly. 19 These are the primary provisions: The settlement flows 20 constitute a significant increase above the existing 21 fishery flow. They protect the anadromous fishery and 22 public trust resources of the Lower Mokelumne. Those flows 23 will also result in increased inflow to the Delta from the 24 Mokelumne River. And the settlement flows are sufficient 25 to meet East Bay MUD's responsibility for meeting the CAPITOL REPORTERS (916) 923-5447 2489 1 Bay-Delta standards specified in the 1995 Water Quality 2 Control Plan. Additionally, no additional flows above 3 these settlement flows are required of East Bay MUD. And 4 implementation of the MOU is subject to FERC and State 5 Water Resources Control Board adoption of the settlement 6 agreement. Go ahead, Sean. 7 MEMBER FORSTER: You don't have to go that fast. 8 C.O. CAFFREY: Excuse me, who said numbers? Somebody 9 out there say, "numbers"? That was the same exhibit, it 10 was two pages. 11 MR. ETHERIDGE: This one is East Bay MUD Exhibit 12 10-O, "Status of FERC proceeding." 13 C.O. CAFFREY: All right. And Ms. Forster? 14 MEMBER FORSTER: I want you to slow down a little 15 bit, because this is the crux of your whole presentation. 16 C.O. CAFFREY: I can't give them extra time. 17 MEMBER FORSTER: I didn't ask for extra time. We're 18 off the clock, right? I just wanted you to go back to the 19 last one you whizzed through. 20 C.O. CAFFREY: Let me make this a respectful 21 suggestion, let him use his time the way he needs to to 22 make his -- to get all of his evidence in the record in the 23 fashion that he wants to. And I'll give you four hours to 24 cross-examine him. That way we don't -- 25 MEMBER FORSTER: Well, maybe I'll do what CAPITOL REPORTERS (916) 923-5447 2490 1 Mr. Stubchaer did yesterday -- 2 C.O. CAFFREY: Now, you got it. 3 MEMBER FORSTER: -- and say, "Would you, please, go 4 back to." 5 C.O. CAFFREY: That's what we will do. Please, 6 continue, sir. 7 MR. LAMPE: So I think we can continue with the next 8 chart, Sean, which has already been identified. 9 MR. ETHERIDGE: Yes, 10-O. 10 MR. LAMPE: This is the status of the FERC 11 proceeding. The key points I believe on this include the 12 following: That the ESA review was completed on the 13 settlement agreement, that it's been submitted to FERC. So 14 ESA's review on these flows has been accomplished so far as 15 the Mokelumne River is concerned. And it is expected that 16 FERC will take action on the Joint Settlement Agreement in 17 the near future; the benefits of the settlement, and this 18 is -- 19 MR. ETHERIDGE: 10-P, as in Peter. 20 MR. LAMPE: Additional flows of the Lower Mokelumne 21 River, the water released from Camanche Reservoir for 22 fishery purposes is in addition to water that is released 23 for all other purposes, that is the senior water rights 24 channel loss, et cetera. The settlement flows represent a 25 balanced approach balancing fishery and ecosystem needs CAPITOL REPORTERS (916) 923-5447 2491 1 with water supply demands and increased inflow to the Delta 2 during dry and critically dry periods. 3 This is a comparison of our current existing 4 requirements for 13,000 acre-feet with those that are 5 contain in the settlement. A minimum of 22,500 during 6 critically dry years as defined on the Mokelumne River, 7 65,000 on -- dry years on the Mokelumne, et cetera. 8 Go ahead, Sean. 9 MR. ETHERIDGE: And that is Figure 1 in his testimony 10 of Exhibit 10. 11 MR. LAMPE: And this will be -- 12 MR. ETHERIDGE: 10-Q, it's entitled, "Bay-Delta 13 settlement among CUWA Ag exports and East Bay MUD." 14 MR. LAMPE: The flows that I just showed result in an 15 average increase of 28,700 acre-feet in dry years based on 16 the Sacramento water year index, and 27,300 acre-feet in 17 critically dry years based upon the Sacramento water year 18 index. 19 The signatories to the CUWA Ag Exporters 20 settlement agreement include the Metropolitan Water 21 District of Southern California, Kern County Water Agency, 22 Tulare Lake Basin Water Storage District, State Water 23 Contractors, Westlands, San Luis-Delta Mendota Water 24 Authority and Santa Clara Valley Water District and, of 25 course, East Bay Municipal Utility District. CAPITOL REPORTERS (916) 923-5447 2492 1 MR. ETHERIDGE: And that is 10-R. That's listing the 2 parties signing the MOU. 3 MR. LAMPE: And this one? 4 MR. ETHERIDGE: Would be 10-S. It's entitled, 5 "Environmental documentation." 6 MR. LAMPE: In terms of environmental documentation 7 associated with the offer before you our settlement flows 8 are included within the range analyzed in the State Water 9 Resource Control Board Bay-Delta Draft EIR. And those 10 flows were included in the DWRSIM modeling, relied upon in 11 the Draft EIR's analysis of various flow alternatives. 12 This is a summary chart, which I won't take the 13 time to go through now, but this is, in essence, the three 14 charts which you saw previously in addition to the one that 15 I recently presented, the customer impacts comparing the 16 current flows, those in the settlement agreement with those 17 in the State Board alternatives. 18 MR. ETHERIDGE: We'll identify those summary tables 19 as 10-T as in Tom. 20 MR. LAMPE: You can go on to the next page. So our 21 settlement alternative results in additional flows to 22 benefit the Delta and the Lower Mokelumne River without the 23 adverse impacts associated with the State Water Resources 24 Control Board's alternative three, four and five. Our 25 settlement, therefore, strikes a reasonable balance between CAPITOL REPORTERS (916) 923-5447 2493 1 protecting and enhancing fishery needs on the Lower 2 Mokelumne while providing additional flows to the Delta and 3 preserving a viable high-quality water supply. 4 CUWA Ag Exporters who have been affected by the 5 parties's voluntary provision of flows to meet the Water 6 Control Quality Plan have also reviewed the settlement 7 flows and have found them to be a reasonable East Bay MUD 8 contribution to the Water Quality Control Plan as evidenced 9 by the MOU reached with the CUWA Ag Exporters. For 10 these -- 11 C.O. CAFFREY: I'll let you finish that last 12 sentence. 13 MR. LAMPE: For these reasons, East Bay MUD believes 14 its settlement is the reasonable alternative for its full 15 contribution to the Mokelumne River in these proceedings. 16 MR. ETHERIDGE: And that last chart entitled, "EBMUD 17 settlement alternative," will be designated Exhibit 10-U. 18 C.O. CAFFREY: All right. Thank you, gentlemen. 19 MR. ETHERIDGE: I feel like we just finished a race. 20 MEMBER FORSTER: Poor Mary. 21 C.O. CAFFREY: Well, I'd feel guilty about that if we 22 had just set the rules today, but they've been in place for 23 a long time. And you made it. So that's fine, gentlemen. 24 Let's go to Mr. Sandino with Mr. Russell, if he 25 wants to bring him forward with some questions. And, then, CAPITOL REPORTERS (916) 923-5447 2494 1 we will bring everybody up to kind of a circular thing 2 there with as many chairs as we can fit for 3 cross-examination if there is going to be any. 4 MR. BIRMINGHAM: Excuse me, Mr. Chairman. Before -- 5 C.O. CAFFREY: Yes, Mr. Birmingham. 6 MR. BIRMINGHAM: Before Mr. Sandino starts, could we 7 possibly go through the exhibits that were marked for 8 identification during Mr. Lampe's testimony to make sure 9 that we have an accurate description of them for purposes 10 of the record? 11 C.O. CAFFREY: Do we need to do that this very 12 minute, or can we -- is there some reason for doing it 13 right this second? 14 MR. BIRMINGHAM: Only because of its proximity to his 15 testimony in the record. 16 C.O. CAFFREY: Anybody have a problem with doing 17 that? All right, let's do it. You would like 18 Mr. Etheridge just to go through the list again so we make 19 sure we all have it down? 20 MR. BIRMINGHAM: Yes. 21 C.O. CAFFREY: Okay. 22 MR. ETHERIDGE: I believe we started -- 23 C.O. CAFFREY: I don't want see him anymore. 24 C.O. STUBCHAER: Mr. Chairman, could I make a 25 suggestion? CAPITOL REPORTERS (916) 923-5447 2495 1 C.O. CAFFREY: Yes. 2 C.O. STUBCHAER: How about making copies of these and 3 putting the number on them and then distributing them. 4 MS. WHITNEY: He needs to give us a copy anyway. 5 MR. ETHERIDGE: Right. I'll provide the State Board 6 20 copies and mail each party a copy and also put copies 7 out on the table. 8 C.O. STUBCHAER: Does that satisfy Mr. Birmingham? 9 C.O. CAFFREY: Is that satisfactory, Mr. Birmingham? 10 MR. BIRMINGHAM: It's not my record, but during the 11 testimony Mr. Lampe would describe what was in the document 12 and, then, Mr. Etheridge would sometimes identify it before 13 the description, and sometimes after. And I was concerned 14 that the record may not accurately reflect what document 15 was being described. 16 C.O. CAFFREY: All right. That's fine, we can do it. 17 We're in a -- 18 MS. LEIDIGH: I don't think that helps. 19 C.O. STUBCHAER: I don't think it's necessary, 20 Mr. Chairman, because if the parties have the identified 21 documents they can refer to them when they see the 22 reference in the record. 23 C.O. CAFFREY: Is that the feeling of the Board 24 Members, in general, you don't want to go through this 25 right now? We'll be going through it, I suspect, in about CAPITOL REPORTERS (916) 923-5447 2496 1 ten minutes anyway. 2 Sorry, Mr. Birmingham, I tried to be nice. Let's 3 dispense with that, but we will be doing it momentarily. 4 Thank you. 5 MR. ETHERIDGE: All right. 6 C.O. CAFFREY: Thank you, gentlemen. Mr. Sandino. 7 ---oOo--- 8 DIRECT TESTIMONY OF DEPARTMENT OF WATER RESOURCES 9 BY DAVID SANDINO 10 MR. SANDINO: Good afternoon, Mr. Chairman, Members 11 of the Board. We'd like to put on Mr. Russell, again, 12 who'll present testimony about the Department's willingness 13 to backstop its share of responsibility for the settlement. 14 Mr. Russell, do you realize that you're still 15 under oath? 16 MR. RUSSELL: Yes, I do. 17 MR. SANDINO: Have your qualifications changed in any 18 way since this morning? 19 MR. RUSSELL: Only more experience as a witness, 20 thank you. 21 MR. SANDINO: Are you familiar with the East Bay MUD 22 CUWA Ag Memorandum of Understanding regarding the Mokelumne 23 River which has been identified as East Bay MUD Exhibit 10, 24 Appendix A? 25 MR. RUSSELL: Yes, I am. CAPITOL REPORTERS (916) 923-5447 2497 1 MR. SANDINO: Do you have before you, again, DWR 2 Exhibit 32? 3 MR. RUSSELL: Yes, I do. 4 MR. SANDINO: Is DWR Exhibit 32 a true and correct 5 copy of your testimony as it relates to the East Bay MUD 6 settlement? 7 MR. RUSSELL: There are some corrections that I'd 8 like to make at this time, please. 9 MR. SANDINO: Would you make the minor corrections 10 and also would you, please, summarize your testimony? 11 MR. RUSSELL: Yes, I will. In the previous submittal 12 we had referred to a potential Memorandum of Understanding 13 that was being drafted and included the Bureau of 14 Reclamation, that memorandum has not been completed. And 15 so we'll drop the reference to the Bureau of Reclamation. 16 And if I could, please, I would read into the record just 17 to be clear as to what the current testimony should be. So 18 this would replace the version in DWR Exhibit 32. 19 Okay. "The Department has reviewed and supports 20 the settlement -- 21 C.O. CAFFREY: I'm sorry. I think I missed some of 22 that. Are we talking about a substantive change in the 23 exhibit which might require giving it a new number, or are 24 we just talking about some minor editing? 25 MR. RUSSELL: These are minor editings. And I CAPITOL REPORTERS (916) 923-5447 2498 1 thought for the sake of consistency I thought it would be 2 better if it was read directly because it's so short. 3 C.O. CAFFREY: Let's hear what it is. Mr. Sandino? 4 MR. SANDINO: I think that's an accurate 5 characterization. These are minor edits. I think it might 6 be best to hear the testimony. 7 C.O. CAFFREY: All right. Mr. Russell, please, 8 proceed. 9 MR. RUSSELL: Thank you. Starting again, "The 10 Department has reviewed and supports the settlement which 11 is East Bay Municipal Utility District Exhibit 10, Appendix 12 A, on the Mokelumne River reached by the export contractors 13 and the East Bay Municipal Utility District. The 14 settlement satisfies East Bay MUD's obligation to 15 contribute to Delta water quality objectives based on the 16 pro rata sharing of responsibility in accordance with 17 percent of impact on Delta inflows." 18 Paragraph 2 of the MOU provides, "The agency's 19 obligation to meet Delta objectives being limited to the 20 releases of settlement water, the Department agrees to meet 21 its share of the responsibility for providing any 22 additional water as may be directed by the Board to be 23 reasonable and appropriate to meet the agency's theoretical 24 obligation to meet Delta objectives at this hearing." 25 That concludes my testimony. Thank you. CAPITOL REPORTERS (916) 923-5447 2499 1 C.O. CAFFREY: All right. Thank you, sir. We are 2 now at the point where we will allow cross-examination of 3 the entire group of witnesses as a panel. By a showing of 4 hands is there anyone wishing to cross-examine these 5 witnesses? Mr. Birmingham, Mr. Maddow, Mr. Minasian, 6 Mr. Johnston, Mr. Godwin, Mr. Sorenson, is it? 7 MR. SORENSON: Yes. 8 C.O. CAFFREY: Thank you. Mr. Shephard, of course, 9 Ms. Zolezzi, Mr. Jackson, Mr. Brandt, and who -- oh, 10 Mr. Nomellini. Let me go through the list and see if I've 11 left anybody out: 12 Mr. Birmingham, Mr. Maddow, Mr. Minasian, 13 Mr. Johnston, Mr. Godwin, Mr. Sorenson, Mr. Shephard, 14 Ms. Zolezzi, Mr. Jackson, Mr. Brandt, Mr. Nomellini. Did I 15 leave anybody out? Anybody want to change their mind and 16 be taken off the list? All right. Feeble attempt at 17 humor. 18 Let's begin with Mr. Birmingham. And let's bring 19 the entire panel forward and you can cluster in chairs, 20 obviously, you can't all fit at the table. The panel is 21 bigger than the audience, just an observation. 22 // 23 // 24 // 25 // CAPITOL REPORTERS (916) 923-5447 2500 1 ---oOo--- 2 CROSS-EXAMINATION OF EAST BAY MUNICIPAL UTILITY DISTRICT 3 BY WESTLANDS WATER DISTRICT, et al. 4 BY THOMAS BIRMINGHAM 5 MR. BIRMINGHAM: Good afternoon. My name is Tom 6 Birmingham. I'm the attorney for Westlands Water District 7 and the San Luis Delta-Mendota Water Authority. And most 8 of the questions I have drafted were intended for Mr. Lampe 9 and some for Mr. Skinner. I may end up asking others some 10 questions, but if anyone one feels that they would like to 11 respond to one of the questions that I've asked, I would 12 encourage you to, please, just to speak up and address the 13 question. 14 C.O. CAFFREY: Mr. Birmingham, could you move the mic 15 over to the other corner of the podium there, then, we can 16 pick you up a little better? Thank you, sir. 17 MR. BIRMINGHAM: Yes. Thank you. I thought I heard 18 someone say this morning that historically East Bay MUD has 19 obtained virtually all of its water from the Mokelumne 20 River. Is that correct, Mr. Lampe? 21 MR. LAMPE: Approximately 95 percent of our water is 22 obtained from the Mokelumne River. The other five percent, 23 on average, is generated within the service area. 24 C.O. CAFFREY: I saw Mr. Myers raise his hand. Did 25 you want to answer, also, Mr. Myers? CAPITOL REPORTERS (916) 923-5447 2501 1 MR. MYERS: Only to respond that that was in my 2 testimony, but Mr. Lampe accurately answered the question. 3 C.O. CAFFREY: All right. Thank you, sir. 4 MR. BIRMINGHAM: And a number of the documents that 5 were submitted in evidence by East Bay MUD describe the 6 facilities maintained on the Mokelumne River. Is that 7 correct, Mr. Lampe? 8 MR. MYERS: Yes. 9 MR. LAMPE: I'm not sure I understood that question. 10 MR. BIRMINGHAM: Well, a number of you had a figure 11 in your -- in your testimony that depicted East Bay MUD's 12 water gathering facilities on the Mokelumne River and 13 showed the Mokelumne River aqueduct to the East Bay MUD 14 service area. Is that correct? 15 MR. LAMPE: Yes, they were generalized descriptions 16 of those facilities, yes. 17 MR. BIRMINGHAM: And, Mr. Lampe, in particular your 18 testimony describes the impact of the Joint Settlement 19 Agreement on East Bay MUD's Mokelumne River water supply. 20 Is that correct? 21 MR. LAMPE: Yes. 22 MR. BIRMINGHAM: Now, when I refer to, "The Joint 23 Settlement Agreement," perhaps, you can help me out, what 24 exhibit number is that? 25 MR. LAMPE: Exhibits 10. Your question is the CAPITOL REPORTERS (916) 923-5447 2502 1 impacts of the Joint Settlement Agreement on the supply to 2 District customers? 3 MR. BIRMINGHAM: My question is: What exhibit number 4 is the Joint Settlement Agreement? 5 MR. LAMPE: I'm sorry. That is Exhibit 10. 6 MR. BIRMINGHAM: Exhibit 10 is your testimony 7 describing the settlement agreement; is that correct? 8 MR. LAMPE: Well -- 9 MR. ETHERIDGE: If we could clarify which settlement 10 you are questioning on. 11 MR. BIRMINGHAM: Maybe that was part of what I was 12 trying to get at. There are a number of settlement 13 agreements that were referred to in the testimony and 14 there's an abbreviation that's sometimes is it referred to 15 as the "JSA"? 16 MR. LAMPE: Yes. 17 MR. BIRMINGHAM: That is the Joint Settlement 18 Agreement; is that correct? 19 MR. LAMPE: That's correct. 20 MR. BIRMINGHAM: And that's the settlement agreement 21 among East Bay MUD, the Fish and Wildlife Service, and the 22 California Department of Fish and Game; is that correct? 23 MR. LAMPE: That is correct. 24 MR. BIRMINGHAM: And how was that document numbered 25 for purposes of identification in the record? CAPITOL REPORTERS (916) 923-5447 2503 1 MR. LAMPE: That document is not offered in the 2 record. 3 MR. BIRMINGHAM: Mr. Lampe, your testimony describes 4 the impacts of other alternatives, flow alternatives being 5 considered by the Water Board on East Bay MUD's Mokelumne 6 River water supply; is that correct? 7 MR. LAMPE: My testimony dealt with the impacts on 8 customers, yes. 9 MR. BIRMINGHAM: And the testimony of other East Bay 10 MUD witnesses dealt with the impacts on the Mokelumne River 11 fishery and the flows in the Mokelumne River under the 12 different alternatives; is that correct? 13 MR. LAMPE: That is correct. 14 MR. BIRMINGHAM: And the testimony that was submitted 15 by East Bay MUD compares alternatives being considered by 16 the Water Board with the Joint Settlement Agreement and 17 concludes that the adoption of an alternative other than 18 the Joint Settlement Agreement would impose unjustified 19 burdens on East Bay MUD's water users; is that correct? 20 MR. LAMPE: Yes. 21 MR. BIRMINGHAM: Okay. 22 MR. LAMPE: And unreasonable impacts -- fishery 23 impacts on the Mokelumne resource as well. 24 MR. BIRMINGHAM: In the record as Appendix A to East 25 Bay MUD Exhibit 10 is the Memorandum of Understanding among CAPITOL REPORTERS (916) 923-5447 2504 1 CUWA Ag Exporters and East Bay Municipal Utility District 2 with respect to Bay-Delta obligations to the Lower 3 Mokelumne River. Is that a correct statement? 4 MR. LAMPE: I believe so. Let me just verify that. 5 Yes, it is Appendix A, yes, to Exhibit 10. 6 MR. BIRMINGHAM: Now, the Memorandum of 7 Understanding, Appendix A to East Bay MUD Exhibit 10, was 8 based on conditions that existed at the time the MOU was 9 signed; is that correct? 10 MR. LAMPE: That's correct. 11 MR. BIRMINGHAM: And the Memorandum of Understanding 12 was based upon the assumption that East Bay MUD would 13 continue to rely on its Mokelumne River water supply 14 project; is that correct? 15 MR. LAMPE: That's not an explicit recognition or 16 understanding within the memorandum of agreement. 17 MR. BIRMINGHAM: Is it correct, Mr. Lampe, or anyone 18 else on the panel that would like to answer this question, 19 that East Bay MUD has a contract with the United States for 20 the supply of Central Valley Project water? 21 MR. LAMPE: That's correct. It has since 1970. 22 MR. BIRMINGHAM: And has East Bay MUD taken any CVP 23 water during the term of its contract? 24 MR. LAMPE: 25,000 acre-feet in 1977. 25 MR. BIRMINGHAM: Other than the 25,000 acre-feet in CAPITOL REPORTERS (916) 923-5447 2505 1 1977, has East Bay MUD taken any water from the Central 2 Valley Project pursuant to its water supply contract? 3 MR. LAMPE: We have not. 4 MR. BIRMINGHAM: So the evidence that you've 5 submitted to the State Board in connection with this 6 proceeding is based on an assumption that East Bay MUD will 7 reply on its Mokelumne River water supply project; is that 8 correct? 9 MR. ETHERIDGE: I object. That's an overbroad 10 question. You said the evidence relied upon, we have put 11 in numerous exhibits, could you be more specific? 12 C.O. CAFFREY: I'm sorry, it's all Mr. Stubchaer's 13 fault. We were in consultation. Let's hear the question, 14 again. 15 MR. ETHERIDGE: I was requesting that the question be 16 more specific instead of referring to the East Bay MUD 17 exhibits. 18 C.O. CAFFREY: Okay. Can you narrow the question 19 with regard to the reference to the exhibit, if possible, 20 Mr. Birmingham? 21 MR. BIRMINGHAM: Certainly. 22 C.O. CAFFREY: Thank you, sir. 23 MR. BIRMINGHAM: East Bay MUD's Mokelumne River 24 Project in the perspective testimony of John A. Myers, 25 which is East Bay MUD Exhibit Number 2. Mr. Myers -- CAPITOL REPORTERS (916) 923-5447 2506 1 MR. MYERS: Yes. 2 MR. BIRMINGHAM: -- the testimony that you've 3 submitted as East Bay MUD Exhibit Number 2 is a description 4 of the Mokelumne River Project which is operated by East 5 Bay MUD. Is that correct? 6 MR. MYERS: That's correct. 7 MR. BIRMINGHAM: And it a description of the 8 potential impacts on the Mokelumne River Project resulting 9 from a decision by the Water Board in connection with 10 assigning responsibility for the 1995 Water Quality Control 11 Plan. Is that correct? 12 MR. MYERS: I'm sorry, I saw that as a statement I 13 didn't read that as a question. My testimony described the 14 East Bay MUD Project, it was not describing the impact. 15 MR. BIRMINGHAM: Does your testimony describe any 16 project other than the East Bay MUD Project -- excuse me, 17 the Mokelumne River Project? 18 MR. MYERS: It describes the Mokelumne River Project. 19 MR. BIRMINGHAM: Mr. Vogel, Exhibit Number 3 is your 20 testimony concerning the history and status of the Lower 21 Mokelumne River fishery resources. Is that correct? 22 MR. VOGEL: Yes, it is. 23 MR. BIRMINGHAM: Does your testimony describe any 24 other project? When I say, "Any other project," I mean any 25 project other than the Mokelumne River Project. CAPITOL REPORTERS (916) 923-5447 2507 1 MR. VOGEL: You would have to be more specific, 2 because in the historical section it does describe other 3 issues, other projects. 4 MR. BIRMINGHAM: Does your testimony describe the 5 American River Project? 6 MR. VOGEL: No. 7 MR. BIRMINGHAM: Mr. Skinner, your testimony is a 8 description of the East Bay MUD simulation model. Is that 9 correct? 10 MR. SKINNER: That's correct. 11 MR. BIRMINGHAM: And that's East Bay MUD Exhibit 12 Number 4? 13 MR. SKINNER: Yes. 14 MR. BIRMINGHAM: Now, your testimony relates, does it 15 not, to the operation of East Bay MUD's Mokelumne River 16 Project? 17 MR. SKINNER: It relates to the model studies that 18 simulate operation of that project. 19 MR. BIRMINGHAM: Does it relate to the simulation of 20 any other project? 21 MR. SKINNER: No. 22 MR. BIRMINGHAM: Mr. Grace, East Bay MUD Exhibit 23 Number 5 is testimony that you've prepared in connection 24 with this proceeding. Is that correct? 25 MR. GRACE: Yes. CAPITOL REPORTERS (916) 923-5447 2508 1 MR. BIRMINGHAM: And in that testimony, East Bay MUD 2 Exhibit Number 5, you've described the impacts, or 3 potential impacts of different alternatives being 4 considered by the State Water Resources Control Board on 5 Camanche discharge temperatures. Is that correct? 6 MR. GRACE: Yes. 7 MR. BIRMINGHAM: Now, Camanche Reservoir is part of 8 the East Bay MUD Mokelumne River Project; is that right? 9 MR. GRACE: Yes. 10 MR. BIRMINGHAM: And does your testimony deal with 11 any other project? 12 MR. GRACE: No. 13 MR. BIRMINGHAM: Dr. Hanson, your testimony, East Bay 14 MUD Exhibit Number 6, is testimony concerning potential 15 impacts of different State Water Resources Control Board 16 alternatives on the Lower Mokelumne River anadromous 17 fishery. Is that correct? 18 DR. HANSON: That is correct. 19 MR. BIRMINGHAM: And does your testimony deal with 20 impacts on -- on fisheries other than the fisheries in the 21 Mokelumne River anadromous -- excuse me, other than the 22 Lower Mokelumne River? And let me be very specific here, 23 because I know you've testified here on behalf of other 24 parties. In my question I'm referring specifically to 25 Exhibit Number 6. CAPITOL REPORTERS (916) 923-5447 2509 1 DR. HANSON: No, it is exclusive to the Lower 2 Mokelumne River. 3 MR. BIRMINGHAM: Mr. Nuzum, you've submitted 4 testimony that has been marked both as East Bay MUD Exhibit 5 7 and East Bay MUD Exhibit Number 8. Is that correct? 6 MR. NUZUM: That's correct. 7 MR. BIRMINGHAM: And Exhibit Number 7 is an analysis, 8 or a description of the potential impacts of different 9 alternatives being considered by the State Water Resources 10 Control Board on reservoirs, fisheries, and recreation; is 11 that correct? 12 MR. NUZUM: That's correct. 13 MR. BIRMINGHAM: And it deals with reservoir, 14 fisheries, and recreation; is that correct? 15 MR. NUZUM: That is correct. 16 MR. BIRMINGHAM: Does it deal with reservoirs, 17 fisheries, and recreation on any other river? 18 MR. NUZUM: It does not. 19 MR. BIRMINGHAM: With respect to East Bay MUD Exhibit 20 8, that was also prepared by you, wasn't it, Mr. Nuzum? 21 MR. NUZUM: It was. 22 MR. BIRMINGHAM: And it deals with Delta inflow from 23 the Mokelumne River in comparison to other river systems; 24 is that correct? 25 MR. NUZUM: That's correct. CAPITOL REPORTERS (916) 923-5447 2510 1 MR. BIRMINGHAM: And is it correct that the point of 2 East Bay MUD Exhibit Number 8 is that with respect to the 3 area of the Mokelumne River watershed compared to other 4 watersheds which are tributary to the Delta, the Mokelumne 5 is -- the Mokelumne River watershed is approximately one 6 percent of the total watershed? 7 MR. NUZUM: One and a half, I believe. 8 MR. BIRMINGHAM: And with respect to the volume of 9 water, or the flows that are generated within the Mokelumne 10 River watershed compared to the other watersheds that are 11 tributary to the Delta, the point in East Bay MUD Exhibit 12 Number 8 is that the Mokelumne River watershed contributes 13 approximately 2.5 percent of the total inflow to the Delta; 14 is that correct? 15 MR. NUZUM: That's correct. 16 MR. BIRMINGHAM: Mr. Lampe, East Bay MUD Exhibit 17 Number 9 -- excuse me. May I have a moment? 18 C.O. CAFFREY: You certainly may. 19 MR. BIRMINGHAM: Excuse me, Mr. Caffrey. 20 Mr. Lampe, East Bay MUD Exhibit Number 9 is your 21 testimony and it describes impacts of flow alternatives 22 being considered by the State Water Resources Control Board 23 on East Bay MUD service area. Is that correct? 24 MR. LAMPE: In addition to other things, yes, it does 25 accomplish that. CAPITOL REPORTERS (916) 923-5447 2511 1 MR. BIRMINGHAM: What other things does it describe? 2 MR. LAMPE: It also describes the need for additional 3 water by the East Bay MUD Municipal Utility District with 4 or without the settlement flows. 5 MR. BIRMINGHAM: Is there any description in East Bay 6 MUD Exhibit Number 9 to the specific projects which East 7 Bay MUD is contemplating in order to provide those 8 supplemental supplies? 9 MR. LAMPE: I do not believe that there's a specific 10 reference in there other than the basic documentation 11 referring to the need for supplemental water supply 12 references, the water supply management program as the 13 source of that information contained in the water supply 14 management plan is a comprehensive list of alternative 15 projects which is the District is considering for 16 supplemental supply. 17 MR. BIRMINGHAM: But your testimony which is -- has 18 been marked for identification as Exhibit 9 does not 19 specifically describe any of the projects which East Bay 20 MUD may pursue in order to provide the supplemental 21 supplies? 22 MR. LAMPE: That's correct. It's focused on the 23 impacts that are at hearing in this proceeding. 24 MR. BIRMINGHAM: And, then, East Bay MUD Exhibit 25 Number 10 is a description of the East Bay MUD settlement CAPITOL REPORTERS (916) 923-5447 2512 1 and in particular the Joint Settlement Agreement to which 2 we referred to earlier and the Memorandum of Understanding 3 which has been marked for identification as Exhibit A to 4 East Bay MUD Exhibit 10 -- excuse me, Appendix A to East 5 Bay MUD Exhibit 10; is that correct? 6 MR. LAMPE: That's correct. 7 MR. BIRMINGHAM: Other than the statement of 8 qualifications, which has been submitted by East Bay MUD as 9 Exhibit Number 1, is there any evidence submitted by East 10 Bay MUD that I haven't referred in my series of questions 11 to each one of the witnesses on this panel from East Bay 12 MUD? 13 MR. LAMPE: No, ten exhibits comprise our testimony. 14 MR. BIRMINGHAM: Now, I'd like to turn, if we can, to 15 Appendix A to East Bay MUD Exhibit 10. Well, let me ask 16 one more question, if I can. 17 Can anyone point to me in the evidence that was 18 submitted by East Bay MUD in connection with this 19 proceeding, any description of the potential for East Bay 20 MUD taking water from the Central Valley Project? 21 MR. LAMPE: In the context of this agreement, or -- 22 MR. BIRMINGHAM: No, not necessarily in the context 23 of the agreement. I presume that have everyone on the 24 panel from East Bay MUD is familiar with the evidence that 25 they submitted in connection with their testimony. CAPITOL REPORTERS (916) 923-5447 2513 1 Can anyone point me to evidence submitted by East 2 Bay MUD that concerns East Bay MUD taking water from the 3 Central Valley Project? And if the answer is, no, 4 collectively that, certainly, is acceptable. 5 MR. LAMPE: The potential for that was indicated in 6 my testimony, Exhibit 9, reflecting, again, the need for 7 water for supplemental water supply to the District. And, 8 again, the reference, then, back to the source of that 9 which is the water supply management plan which includes 10 the CVP as an alternative way for ultimately satisfying the 11 need for water. 12 MR. BIRMINGHAM: Is the water supply alternative 13 plan, has it been submitted in connection with your 14 testimony, Mr. Lampe? 15 MR. LAMPE: It is not. 16 MR. BIRMINGHAM: So there isn't any evidence that was 17 submitted by East Bay MUD that deals specifically with the 18 potential of taking water from the Central Valley Project? 19 MR. LAMPE: That's correct. 20 MR. BIRMINGHAM: Turning to Appendix A to the East 21 Bay MUD Exhibit 10, and I'm looking at the first page of 22 the document, it states in the last paragraph, "This MOU is 23 based on existing regulatory conditions including the 1995 24 plan, flow requirements necessary to implement the plan, 25 and the principles of agreement approved in February of CAPITOL REPORTERS (916) 923-5447 2514 1 1996 between East Bay MUD, U.S. Fish and Wildlife Service, 2 and the California Department of Fish and Game." 3 Is that correct, Mr. Lampe? 4 MR. LAMPE: That's correct. 5 MR. BIRMINGHAM: Now, the POA that is referred to in 6 that statement is a predecessor to the Joint Settlement 7 Agreement; is that correct? 8 MR. LAMPE: That's correct, but the flows are 9 identical to the Joint Settlement Agreement. 10 MR. BIRMINGHAM: And the existing regulatory 11 conditions that were in place at the time this document was 12 signed included the Hodge Decision; is that correct? Are 13 you familiar with the term "Hodge Decision"? 14 MR. LAMPE: I am familiar with the Hodge Decision. 15 MR. BIRMINGHAM: And among the regulations that 16 existed-- or the regulatory conditions that existed in 1996 17 when Appendix A to East Bay MUD Exhibit 10 was signed was 18 the Hodge Decision; is that correct? 19 MR. LAMPE: The Hodge Decision was, certainly, 20 entered into prior to that date, yes. 21 MR. BIRMINGHAM: And the Hodge Decision restricts the 22 ability of East Bay MUD to take water from the American 23 River; is that correct? 24 MR. LAMPE: It prescribes the conditions under which 25 East Bay can divert water, yes. CAPITOL REPORTERS (916) 923-5447 2515 1 MR. BIRMINGHAM: And has East Bay MUD been able to 2 satisfy the conditions under which it could take water 3 pursuant to the Hodge Decision since the Hodge Decision was 4 entered into? 5 MR. LAMPE: Restate the question. 6 MR. BIRMINGHAM: Let me state it differently. Has 7 East Bay MUD taken water from the American River since the 8 Hodge Decision was entered into? 9 MR. LAMPE: We have not. 10 MR. BIRMINGHAM: Now, so you would -- you would agree 11 with me, wouldn't you, Mr. Lampe, or any other witness on 12 the panel, that at the time the Memorandum of 13 Understanding, Appendix A to East Bay MUD Exhibit 10, was 14 signed the basic assumption was that East Bay MUD would 15 continue to reply on its Mokelumne River supply as opposed 16 to an American River supply? 17 MR. LAMPE: I would not agree with that. 18 MR. BIRMINGHAM: Okay. Now, the Memorandum of 19 Understanding, which has been marked for identification as 20 Appendix A to East Bay MUD Exhibit 10, states on the bottom 21 of page one, "That in the event of significant changes in 22 the plan, its flow requirements or changes from the flow 23 requirements of the POA, or other events that result in 24 changes to the basic water supply facts, rights, 25 assumptions, and other circumstances envisioned by the CAPITOL REPORTERS (916) 923-5447 2516 1 parties at the time this MOU is executed, the parties to 2 this MOU shall consult pursuant to section five to 3 determine whether to amend, terminate, or continue this 4 MOU." 5 Is that correct, Mr. Lampe? 6 MR. LAMPE: That is the language of the agreement, 7 yes. 8 MR. BIRMINGHAM: Now, East Bay MUD is currently 9 developing an American River Project; is that correct? 10 MR. LAMPE: Yes. 11 MR. BIRMINGHAM: And -- 12 MR. LAMPE: Developing in the sense of we are 13 developing the environmental documentation for such a 14 project, yes. 15 MR. BIRMINGHAM: And there are different alternatives 16 that are being considered as part of that project; is that 17 correct? 18 MR. LAMPE: That's correct. And there are additional 19 projects to the American River Project being under 20 consideration by East Bay MUD. 21 MR. BIRMINGHAM: Let's focus on the American River 22 Project for a few moments if we can. The American River 23 Project, if implemented, will result in diversions by East 24 Bay MUD from the American River; is that correct? 25 MR. LAMPE: That's correct. CAPITOL REPORTERS (916) 923-5447 2517 1 MR. BIRMINGHAM: And under one alternative the 2 diversions would occur at Nimbus Dam on the American River; 3 is that correct? 4 MR. LAMPE: That's correct. 5 MR. BIRMINGHAM: And under that alternative water 6 would be conveyed from Nimbus Dam to the Mokelumne River 7 aqueduct via the Folsom South Canal; is that correct? 8 MR. LAMPE: That's correct. 9 MR. BIRMINGHAM: Now, a second alternative that is 10 being considered by East Bay MUD for diversion of American 11 River water would divert the water near the confluence of 12 the American and Sacramento Rivers; is that correct? 13 MR. LAMPE: That's correct. 14 MR. BIRMINGHAM: Are there any alternatives that are 15 being considered by East Bay MUD that would result in the 16 diversion of American River water below the confluence of 17 the American River and Sacramento River? 18 MR. LAMPE: Not in the current reviews. Those 19 alternatives had been earlier considered and eliminated due 20 to water quality, environmental and cost concerns. 21 MR. BIRMINGHAM: Parenthetically I'd like to observe 22 that anyone from this panel, or this Board is welcome to 23 come to our office and look at the confluence of the 24 American and the Sacramento and see why they've reached 25 that conclusion. CAPITOL REPORTERS (916) 923-5447 2518 1 C.O. CAFFREY: We were just discussing that up here 2 as a matter of fact. Go ahead. 3 MR. BIRMINGHAM: Have you made that observation, 4 Mr. Lampe? 5 MR. LAMPE: I viewed a photograph or two, a data 6 table or two. 7 MR. BIRMINGHAM: Now, it's correct, isn't it, 8 Mr. Lampe, that if the American River Project which is 9 being developed by East Bay MUD is completed and 10 implemented that the contribution of the American River to 11 Delta inflow will be reduced; is that correct? 12 MR. LAMPE: To Delta inflow, during -- 13 MEMBER FORSTER: Repeat the question. 14 MR. BIRMINGHAM: Excuse me? 15 C.O. CAFFREY: Ms. Forster would you like to repeat 16 your question, she didn't hear it. If you don't mind, 17 Mr. Birmingham, or we can have it read back. 18 MR. BIRMINGHAM: I'll repeat it. 19 C.O. CAFFREY: Thank you, sir. 20 MR. BIRMINGHAM: I'll see if I can state it a little 21 more artfully. It's correct, isn't it, Mr. Lampe, that if 22 East Bay MUD diverts water from the American River above 23 the confluence of the American River and the Sacramento 24 River, that the American River's contribution to Delta 25 inflow will be reduced? CAPITOL REPORTERS (916) 923-5447 2519 1 MR. LAMPE: During what period? 2 MR. BIRMINGHAM: During any period. 3 MR. LAMPE: Without reviewing specific modeling here, 4 my expectation would be that during dry and critically dry 5 years there would not be a reduction in American River 6 contributions to the Delta. That if there were reductions 7 they would occur in the wetter years. That would be my 8 expectation. Certainly, there would not be any CVP 9 reduction during those periods. 10 MR. BIRMINGHAM: Mr. Chairman, I am marking as 11 Westlands Water District next in order a series of charts 12 of figures which have been marked for identification as 13 Westlands Water District Exhibit 23. 14 C.O. CAFFREY: For clarification for me, 15 Mr. Birmingham, you mean previously marked for 16 identification, or now marked for identification as 23? 17 MR. BIRMINGHAM: I'm now introducing it into the 18 record for the first time. 19 C.O. CAFFREY: All right. Thank you, sir. 20 MR. BIRMINGHAM: And I'll try to lay a foundation 21 through Mr. Lampe. 22 C.O. CAFFREY: I just wasn't clear whether you were 23 passing out copies of something that was already in the 24 record, that's why I asked. Thank you. Mr. Nomellini? 25 MR. NOMELLINI: I have no objection provided that CAPITOL REPORTERS (916) 923-5447 2520 1 copies be disseminated to all parties. 2 C.O. CAFFREY: I think Mr. Birmingham is about to do 3 that. 4 MR. BIRMINGHAM: I hope I have enough copies for 5 everyone in the audience who is interested in them. 6 C.O. CAFFREY: This is 23. 7 MR. BIRMINGHAM: Mr. Lampe, I've handed you a 8 document, or a sheet which has been marked for 9 identification as Westlands Exhibit 23. Are you familiar 10 with Westlands Exhibit 23? 11 MR. LAMPE: I am not. 12 MR. BIRMINGHAM: You've never seen Westlands Exhibit 13 23 before? 14 MR. LAMPE: I personally have not, but I'm aware of 15 it. 16 MR. BIRMINGHAM: Mr. Lampe, for purposes of trying to 17 refresh your recollection I'm going to hand you a letter. 18 I don't want you to -- to describe it, I just want you to 19 look at it. And it's a letter that is addressed to 20 Thomas Akin dated August 3, 1998. And it bears the 21 signature of, "John B. Lampe." Is that correct? 22 MR. LAMPE: Yes. 23 MR. BIRMINGHAM: Have you ever seen this letter 24 before? 25 MR. LAMPE: Yes, I have. CAPITOL REPORTERS (916) 923-5447 2521 1 MR. BIRMINGHAM: Okay. Now, I'm going to show you a 2 figure which is attached to this letter and see if it 3 refreshes your recollection as to whether or not you've 4 ever seen Exhibit Westlands 23. 5 MR. LAMPE: If this is a copy of this page, then, 6 yes, I have seen it before. It's -- it's -- yeah -- I 7 don't understand. I mean there appears to be differences 8 between these pages. And I'm -- 9 MR. BIRMINGHAM: You stated a few moments ago that 10 if -- may I go off the record for just one moment? 11 C.O. CAFFREY: Yes. Let's go off the record for a 12 minute or two. 13 (Off the record from 2:09 p.m. to 2:11 p.m.) 14 C.O. CAFFREY: Back on the record. 15 MR. BIRMINGHAM: Mr. Lampe, I'm handing you a copy -- 16 and, unfortunately, I don't have enough copies, 17 Mr. Chairman. I will make copies at the recess for any 18 party that is interested in it. 19 I'm handing you a document that I've marked for 20 identification as Westlands Exhibit 26. And I'm going to 21 ask you to describe Westland's Exhibit 26. 22 MR. LAMPE: Westlands Exhibit 26 is entitled at the 23 bottom of the page, Figure 1, "No action alternative 24 simulated CVP storage and South Delta deliveries as 25 compared to existing conditions 1922 through 1990." CAPITOL REPORTERS (916) 923-5447 2522 1 MR. BIRMINGHAM: And from what was Westlands Water 2 District's Exhibit 26 taken? 3 MR. LAMPE: I -- because I just believe I saw you do 4 that, it appears that you took it from the letter that I -- 5 that you referenced earlier that was sent to Mr. Thomas 6 Akin. Is that correct? 7 MR. BIRMINGHAM: I will represent to you that I took 8 it from the letter that you sent to Mr. Akin. Now, I'd ask 9 you, are you familiar with Westlands Exhibit 26 for 10 identification? 11 MR. LAMPE: Yes. 12 MR. BIRMINGHAM: Now, I'd ask you to compare 13 Westlands Exhibit 26 with Westlands Exhibit 23. And after 14 you've had an opportunity to fully -- fully analyze it, 15 other than the fact that Westland's Exhibit 26 is black and 16 white and Westland's Exhibit 23 is in color, tell me the 17 difference between Exhibits 23 and 26 both for 18 identification. 19 MR. ETHERIDGE: Mr. Caffrey, if I may object. I 20 don't think we've established a foundation for Westlands 21 Exhibit 23 -- 22 C.O. CAFFREY: That's what I was just discussing up 23 here with Mr. Stubchaer. What is 23? I know what it is, I 24 know it's this, but I am not sure what it comes from. This 25 is 23, correct? CAPITOL REPORTERS (916) 923-5447 2523 1 MR. BIRMINGHAM: I will represent to the Board that 2 Exhibit Westlands 23 is a chart prepared by a consultant 3 for East Bay MUD in connection with ongoing negotiations 4 with the Bureau of Reclamation. Mr. Lampe has testified 5 that he does recognize Westlands Exhibit 26. And I'm 6 asking him to compare the two documents. 7 C.O. CAFFREY: The color chart is 23 or 26? 8 MR. BIRMINGHAM: The color chart is Westlands Exhibit 9 23. 10 C.O. CAFFREY: Right. And the black and white is 26. 11 MR. BIRMINGHAM: And for the purposes of the record I 12 will read the titles of each into the record. Westlands 13 Exhibit 23 is entitled, "Figure 1, Simulated no-action 14 alternative CVP storage and south of Delta deliveries as 15 compared to existing conditions 1992 to 1990." 16 THE COURT REPORTER: Excuse me, 1992 to 1990? 17 MR. BIRMINGHAM: "1922 to 1990," excuse me. And 18 Westlands Exhibit 26 is entitled, "Figure 1, No-action 19 alternative simulated CVP storage and south of Delta 20 deliveries as compared to existing conditions 1922 to 21 1990." 22 MR. ETHERIDGE: Mr. Caffrey? 23 C.O. CAFFREY: Mr. Etheridge. 24 MR. ETHERIDGE: If I may object. Mr. Birmingham is 25 asking this witness to compare detailed analysis on the CAPITOL REPORTERS (916) 923-5447 2524 1 spot of some charts, one of which is Exhibit 23. I also 2 don't believe there's been adequate foundation laid for it. 3 And I think this -- I don't think this witness has had time 4 now to look at these and analyze them as requested by the 5 questioner. 6 C.O. CAFFREY: First of all, I'm inclined to allow 7 the witness to answer the question to the best of his 8 ability, but it's not clear to me that there's been any 9 foundation established for 23 being a document from East 10 Bay MUD. 11 MR. BIRMINGHAM: That's what I'm trying to do right 12 now. 13 C.O. CAFFREY: If that's what you're attempting to 14 do, please, proceed, Mr. Birmingham. 15 MR. BIRMINGHAM: That's what I'm attempting to do. 16 C.O. CAFFREY: Then, please, proceed, Mr. Birmingham. 17 Let me offer this: Would it help you, Mr. Etheridge, if we 18 took four or five minutes, or whatever you need for 19 Mr. Lampe to examine this? We can go off the record for a 20 few minutes so he can prepare himself to answer, would that 21 be of assistance, or as Mr. Stubchaer suggests we can take 22 our break? 23 MR. ETHERIDGE: Why don't we do that, take our break. 24 C.O. CAFFREY: Let's take our break. Let's make it 25 the 12 minutes, or thereabouts and come back in a little CAPITOL REPORTERS (916) 923-5447 2525 1 while. 2 (Recess taken from 2:14 p.m. to 2:33 p.m.) 3 C.O. CAFFREY: We are back on the record. We're 4 making copies of the exhibits for the audience, but in the 5 meantime Mr. Birmingham will proceed with the questions. 6 MR. ETHERIDGE: Mr. Caffrey? 7 C.O. CAFFREY: Yes. 8 MR. ETHERIDGE: Two of the District's witnesses, 9 Mr. Myers and Mr. Grace need to leave at 4:00 today. I 10 don't know what your plan is for today. 11 C.O. CAFFREY: We're not going to go beyond 4:00. We 12 had some thought of, perhaps, even a little sooner than 13 that. We have other meetings and commitments late this 14 afternoon and Mr. Stubchaer and I are included. So I was 15 going to try for about a quarter to 4:00. 16 MR. ETHERIDGE: Okay. That would be fine. Thank 17 you. 18 C.O. CAFFREY: Of course, all your witnesses are 19 subject to cross-examination on the 18th. 20 MR. ETHERIDGE: That's true. 21 C.O. CAFFREY: If we're still underway. Was that 22 your question? 23 MR. BRANDT: That was my question. 24 MEMBER BROWN: You were ahead of him, Mr. Chairman. 25 C.O. CAFFREY: For once I was ahead of Mr. Brandt, CAPITOL REPORTERS (916) 923-5447 2526 1 not very often. All right. Let's go. 2 MR. BIRMINGHAM: Mr. Lampe, the purpose of the MOU, 3 Appendix A to East Bay MUD's Exhibit 10, is to resolve the 4 issue of the Lower Mokelumne River flow contributions to 5 meeting the standards of the 1995 Water Quality Control 6 Plan. Is that correct? 7 MR. LAMPE: That's correct. 8 MR. BIRMINGHAM: And you would agree, wouldn't you, 9 that what constitutes East Bay MUD's share, or fair share 10 of the flows required to meet the 1995 Water Quality 11 Control Plan would depend on a number of factors, wouldn't 12 you? 13 MR. LAMPE: I believe it depends on, certainly, the 14 factors we presented in the hearing, yes. 15 MR. BIRMINGHAM: And some of those factors include 16 the demand for water, both existing and future? 17 MR. LAMPE: The demand for the Mokelumne water? 18 MR. BIRMINGHAM: Well, just the demand within East 19 Bay MUD's service area for water is a factor that would 20 affect what would constitute East Bay MUD's fair share? 21 MR. LAMPE: Yes, it could be -- it should be 22 considered as one of many factors. 23 MR. BIRMINGHAM: The efficiency of water use within 24 your service area would be another one of the factors that 25 should be considered; isn't at that right? CAPITOL REPORTERS (916) 923-5447 2527 1 MR. LAMPE: That's correct. 2 MR. BIRMINGHAM: And conservation efforts would be 3 another one of the factors that should be considered? 4 MR. LAMPE: Yes. 5 MR. BIRMINGHAM: And you've pointed out that East Bay 6 MUD has made herculean efforts with respect to water 7 conservation efforts? 8 MR. LAMPE: Substantial efforts, yes. 9 MR. BIRMINGHAM: And water supply would be another 10 factor to be considered in allocating responsibility for 11 the 1995 Water Quality Control Plan; is that right? 12 MR. LAMPE: I'm not certain that I would support that 13 assertion. 14 MR. BIRMINGHAM: Well, in your -- in your testimony 15 you spent a substantial amount of time describing East Bay 16 MUD water supply? 17 MR. LAMPE: Correct. 18 MR. BIRMINGHAM: And you spent a substantial amount 19 of time describing the demand for that water supply? 20 MR. LAMPE: That's correct. 21 MR. BIRMINGHAM: And what you should contribute would 22 depend on your water supply; isn't that right? 23 MR. LAMPE: Among other factors as was discussed in 24 other testimony of the District. 25 MR. BIRMINGHAM: Okay. Now, I'd like to go back to CAPITOL REPORTERS (916) 923-5447 2528 1 Appendix A to East Bay MUD Exhibit 10, which is the MOU. 2 Now, it says that, again, in the event of significant 3 changes in water supply assumptions, or other circumstances 4 envisioned by the parties at the time the MOU is executed, 5 the parties to the MOU shall consult, pursuant to Section 6 5, to determine whether to amend, terminate, or continue 7 this MOU. Now, I paraphrased that, but did I accurately 8 paraphrase it, Mr. Lampe? 9 MR. LAMPE: I would agree with that. 10 MR. BIRMINGHAM: Now, you've done -- you being East 11 Bay MUD and your consultants have done a substantial amount 12 of modeling concerning the potential impacts of the East 13 Bay MUD/American River Project? 14 MR. LAMPE: Yes. 15 MR. BIRMINGHAM: And your modeling has concluded that 16 in all but a very few years the East Bay MUD/American River 17 Project will not reduce CVP exports. Is that correct? 18 MR. LAMPE: That's correct. 19 MR. BIRMINGHAM: Now, you would agree with me, 20 wouldn't you, Mr. Lampe, that as a result of the 21 implementation of the American River Project by East Bay 22 MUD CVP water supplies are reduced for other contractors 23 that that would be a change in the basic water supply 24 assumptions that the parties had at the time the MOU, 25 Appendix A to East Bay MUD Exhibit 10, was signed? CAPITOL REPORTERS (916) 923-5447 2529 1 MR. LAMPE: I believe it might be something that we 2 would sit down and consult over. Whether or not at the 3 conclusion of those consultations either you or I would 4 ultimately hold that opinion is not clear. 5 MR. BIRMINGHAM: Okay. But you would agree that if 6 implementation of the American River Project by East Bay 7 MUD would change the water supply for CVP contractors south 8 of the Delta that the parties would be obligated under the 9 MOU to sit down and talk pursuant to Section 5 of the MOU 10 which is Appendix A to East Bay MUD Exhibit 10? 11 MR. LAMPE: I think we would, certainly, agree to sit 12 down and discuss. My concerns with respect to the question 13 imposed, is that the District executed this Memorandum of 14 Understanding with the CUWA Ag Exporters in December of 15 1996. 16 MR. SKINNER: '96. 17 MR. LAMPE: The District adopted a comprehensive 18 water supply and management plan in 1993 that identified 19 the American River as one of the alternative projects the 20 District fully intended to pursue. It specifically 21 identified in January of 1995 a specific action plan to 22 pursue the American River Project. So those were known 23 facts at the time, certainly, of the signing of the 24 document. 25 And, in fact, just prior to the signing of the CAPITOL REPORTERS (916) 923-5447 2530 1 document the District initiated specific discussions with, 2 among others, the signatories to this agreement to specify 3 the approach that the District would take with respect to 4 developing its project for the American River. In addition 5 to that it's referenced here specifically POA, that POA 6 included specifically within it a gain-sharing provision 7 that provides for an additional 20,000 acre-feet of water 8 to the degree the District obtained additional yield from 9 supplemental supply projects, obviously, the American River 10 being a potential for that supplemental supply. 11 So it's a long answer to your question, but, 12 certainly, I think in the spirit of the agreement we would 13 certainly sit down and consult. What our conclusions would 14 be at the termination of those discussions, certainly, I 15 can't forecast, but the spirit would be consultation to the 16 faith. 17 MR. BIRMINGHAM: Now, you stated in that answer that 18 your supplemental water supply plan was developed in 1993? 19 MR. LAMPE: That's correct. 20 MR. BIRMINGHAM: And in January -- 21 MR. LAMPE: It was adopted in that year, yes. 22 MR. BIRMINGHAM: And in January 1995 you began 23 developing the American River Project pursuant to that -- 24 that plan; is that correct? 25 MR. LAMPE: Specifically, yes. CAPITOL REPORTERS (916) 923-5447 2531 1 MR. BIRMINGHAM: Now, when was the Draft 2 Environmental Impact Report for the American River Project 3 circulated? 4 MR. LAMPE: The draft is -- as I recall -- I don't 5 recall the exact date. 6 MR. BIRMINGHAM: The Draft Environmental Impact 7 Report for the American River Project, East Bay MUD's 8 American River Project was circulated after December of 9 1996; isn't that correct? 10 MR. LAMPE: That's correct. Yes. 11 MR. BIRMINGHAM: In fact, it was circulated sometime 12 in 1998; is that correct? 13 MR. LAMPE: The draft, no. I believe it was issued 14 in November of 1977 is my recollection. 15 MR. BIRMINGHAM: '97 or '77? 16 MR. LAMPE: '97 is my intention to say. 17 MR. BIRMINGHAM: And you said a few moments that the 18 modeling that East Bay MUD has done in connection with its 19 analysis of the American River Project shows that in all 20 but a few years the implementation of the project will not 21 reduce CVP supplies south of the Delta. Is that right? 22 MR. LAMPE: That's correct. 23 MR. BIRMINGHAM: Now, if that modeling turns out to 24 be wrong and implementation of the American River Project 25 results in reduced water supplies you would agree that one CAPITOL REPORTERS (916) 923-5447 2532 1 of the water supply assumptions that you're sitting with 2 here today would change? 3 MR. LAMPE: As I'm sitting here today? 4 MR. BIRMINGHAM: As you're sitting here today with 5 the assumption that implementation of the American River 6 Project will not impact in a significant way water supplies 7 for CVP contractors south of the Delta. Isn't that right? 8 MR. LAMPE: That's correct. 9 MR. BIRMINGHAM: And so if that turns out to be 10 wrong, if the modeling turns out to be wrong, then, one of 11 the basic water supply assumptions that you're sitting with 12 here today will have changed? 13 MR. LAMPE: In terms of our American River Project, 14 yes. 15 MR. BIRMINGHAM: Now, at the time the CUWA Ag parties 16 signed the MOU they had certain understandings about their 17 water supply. Is that right? 18 MR. LAMPE: I would presume so, yes. 19 MR. BIRMINGHAM: And among the signatories to the 20 MOU, Appendix A to East Bay MUD Exhibit 10, are Westlands 21 Water District and San Luis-Delta Mendota Water Authority; 22 is that correct? 23 MR. LAMPE: That's correct. 24 MR. BIRMINGHAM: So if as a result of the 25 implementation of the American River Project the water CAPITOL REPORTERS (916) 923-5447 2533 1 supply for Westlands is reduced, its water supply 2 assumption will have changed; isn't that correct? 3 MR. ETHERIDGE: Whose water supply assumption? 4 MR. BIRMINGHAM: Westlands Water District. Let me 5 restate the question. If as a result of implementation of 6 East Bay MUD's -- if as a result of East Bay MUD's 7 implementation of the American River Project water supplies 8 for CVP contractors south of the Delta are reduced, 9 notwithstanding the modeling, the water supply assumptions 10 that Westlands, as a CVP contractor had in 1996 when it 11 signed the MOU, will have changed? 12 MR. ETHERIDGE: I would object to that question, 13 because it calls for speculation on Mr. Lampe's part on 14 what Westlands assumptions were. Westlands knows that, he 15 does not. 16 C.O. CAFFREY: I think you raise a good point, 17 Mr. Birmingham. Go ahead. 18 MR. BIRMINGHAM: But the witnesses testified that 19 they had specific discussions with the CVP contractors as 20 signatories to the MOU prior to the execution. So he may 21 have that knowledge. If he doesn't, all he needs to do is 22 just say, I don't know. 23 C.O. CAFFREY: Hang on just a moment. Mr. Lampe, I'd 24 like you to answer the question to the best of your 25 ability. CAPITOL REPORTERS (916) 923-5447 2534 1 MR. LAMPE: The reference I made earlier, and I 2 believe you're referring to, that we had discussions with 3 many entities including those signatory to this agreement, 4 specifically included in those discussions that the reason 5 for those discussions, aside from the Memorandum of 6 Understanding -- in fact, they weren't focused on that at 7 all, they were focused on ensuring that other contractors 8 understood the District's efforts to move forward with its 9 CVP contract. 10 In those discussions there was a recognition by 11 the other contractors that there was a likelihood that even 12 though we had been a contractor since 1970, we had taken 13 very little water, except in 1977. And that the 14 expectation was that our District finally beginning to take 15 deliveries under our contract would, in fact, reduce 16 deliveries to other contractors. There was some general 17 recognition that that would occur. 18 There was a discussion at that time that there was 19 a recognition that the District had been a contractor since 20 1970. And, thus, the impacts that were expected would be 21 to some degree mitigated by the fact that the District had, 22 in fact, been a fellow contractor for that period of time. 23 At that time there was no specific discussion 24 about what the impacts might or might not be. It was, 25 certainly, an expression of intent on our part to develop a CAPITOL REPORTERS (916) 923-5447 2535 1 project that would minimize any impacts. That's the most 2 specific answer I can provide to the question that's posed. 3 MR. BIRMINGHAM: Now, Mr. Lampe, are you currently in 4 the process of -- "you" being East Bay MUD, currently in 5 the process of renegotiating your contract with the 6 Department of Interior Bureau of Reclamation? 7 MR. LAMPE: We are. 8 MR. BIRMINGHAM: And during your contract 9 negotiations with the United States has East Bay MUD 10 proposed that East Bay MUD be permitted to offset the 11 requirements to release water under the Joint Settlement 12 Agreement with CVP water diverted from the American River? 13 MR. LAMPE: I'm sorry, I'm not sure I captured your 14 question. 15 MR. BIRMINGHAM: Let me ask it again. During East 16 Bay MUD's negotiations with the United States Department of 17 Interior has East Bay MUD proposed that East Bay MUD be 18 permitted to offset the requirements to release water under 19 the Joint Settlement Agreement with CVP water diverted from 20 the American River? 21 MR. LAMPE: Not as a specific request, no. 22 MR. BIRMINGHAM: Okay. As a result of implementation 23 of the Joint Settlement Agreement will there be a greater 24 number of dry years on the Mokelumne River as you are 25 proposing to define dry years with -- for purposes of your CAPITOL REPORTERS (916) 923-5447 2536 1 contract with the Bureau of Reclamation? 2 MR. LAMPE: Just as a result of the Joint Settlement 3 Agreement? 4 MR. BIRMINGHAM: Yes. 5 MR. LAMPE: Yes. 6 MR. BIRMINGHAM: So as a result of the Joint 7 Settlement Agreement there will be more dry years on the 8 Mokelumne River as you are proposing to define dry years in 9 your contract with the Bureau of Reclamation? 10 MR. LAMPE: When you reference, "dry years," are you 11 talking about dry-year flow releases to the Mokelumne, or 12 are you talking about more rationing to District customers? 13 MR. BIRMINGHAM: What I'm talking about -- let me see 14 if I can ask the question to lay the appropriate 15 foundation. In your negotiations with the Bureau of 16 Reclamation have you proposed distinguishing, on the basis 17 of hydrology, years in which East Bay MUD would divert 18 water from the American River? 19 MR. LAMPE: Yes. 20 MR. BIRMINGHAM: And you've proposed that East Bay 21 MUD would divert water from the American River in dry 22 years; is that correct? 23 MR. LAMPE: That's correct. 24 MR. BIRMINGHAM: And how do you propose to define 25 "dry years" for purposes of that contract? CAPITOL REPORTERS (916) 923-5447 2537 1 MR. LAMPE: There are many options under discussion 2 with the Bureau, but one of the options is to define the 3 years in which the District would divert water as either 4 being very wet years, or in years where the District's 5 total storage was less than 500,000 acre-feet. 6 MR. BIRMINGHAM: So one of the methods, or means of 7 defining -- let me restate the question. 8 One of the means of defining dry years for 9 purposes of your contract will depend upon storage in your 10 Mokelumne River Reservoirs? 11 MR. LAMPE: That's correct. The same basic approach 12 as is used in the Joint Settlement Agreement with the 13 resource agencies. 14 MR. BIRMINGHAM: And as a result of implementation of 15 the Joint Settlement Agreement there will be more years in 16 which storage in the Mokelumne River Reservoirs is below 17 the threshold of that to fall within the classification of 18 "dry," is that correct? 19 MR. LAMPE: That's correct. An indication of that 20 would be my testimony in Exhibit 9 relating to customer 21 deficiency frequency. 22 MR. BIRMINGHAM: And East Bay MUD is proposing that 23 when its reservoirs are low in storage, below 500,000 24 acre-feet, it will be permitted to divert water from the 25 American River? CAPITOL REPORTERS (916) 923-5447 2538 1 MR. LAMPE: That's correct. 2 MR. BIRMINGHAM: And that diversion, at least in some 3 cases, will be a direct result of implementation of the 4 Joint Settlement Agreement; is that correct? 5 MR. LAMPE: It -- we -- I don't know that I can 6 answer that question directly. There, essentially, is a 7 threshold value here. So in those years where the Joint 8 Settlement Agreement flows was the reason that the 9 District's system storage drops below 500,000 acre-feet, 10 then, that would be a relevant factor. 11 MR. BIRMINGHAM: You testified that as a result of 12 the implementation of the Joint Settlement Agreement there 13 will be years when storage will drop below 500,000 14 acre-feet; is that correct? 15 MR. LAMPE: (Witness nods.) 16 MR. BIRMINGHAM: You're nodding your head up and 17 down -- 18 MR. LAMPE: That is correct. 19 MR. BIRMINGHAM: Thank you. Mr. Nomellini didn't 20 jump up that time. 21 C.O. CAFFREY: He was counting on you. Let me remind 22 the witnesses, if I may have the attention of the 23 witnesses, Mr. Skinner. 24 MR. SKINNER: Pardon me? 25 C.O. CAFFREY: I'm trying to get the attention of the CAPITOL REPORTERS (916) 923-5447 2539 1 witnesses. I want to remind all of you that you need to 2 answer audibly. A nod isn't good enough, because she 3 doesn't know how to record that. Thank you. Please, 4 proceed. 5 MR. BIRMINGHAM: And to compensate for those dry 6 years that result from implementation of the Joint 7 Settlement Agreement you're proposing that the Bureau of 8 Reclamation authorize diversions from the American River to 9 replace the water released under the Joint Settlement 10 Agreement. Is that correct? 11 MR. LAMPE: We use the American River as a 12 supplemental supply. So it would be utilized to accomplish 13 many objectives including the results of our obligations 14 for releases to the Mokelumne River. 15 MR. BIRMINGHAM: And what the MOU proposes is that 16 your releases under the MO -- under the Joint Settlement 17 Agreement will constitute East Bay MUD's fair share of 18 flows required to meet the 1995 Water Quality Control Plan? 19 MR. LAMPE: From the Mokelumne, that's correct. 20 MR. BIRMINGHAM: And in order to replace that water 21 East Bay MUD will divert water from the American River? 22 MR. LAMPE: Under the American River alternative, 23 that's correct. 24 MR. BIRMINGHAM: And as a result of those diversions 25 from the American River less water will flow from the CAPITOL REPORTERS (916) 923-5447 2540 1 American into the Sacramento River hence the Delta? 2 MR. LAMPE: That is not necessarily a result. 3 MR. BIRMINGHAM: But it could be a result? 4 MR. LAMPE: It is likely not a result in dry and 5 critically dry years. It is -- if it is a result, it is 6 more likely to occur in the wetter years. 7 MR. BIRMINGHAM: I'd like to turn for a couple of 8 minutes if I can to the model. Now, Mr. Skinner, I believe 9 that it is your testimony that refers primarily to the East 10 Bay MUD simulation model. Is that correct? 11 MR. SKINNER: Correct. 12 MR. BIRMINGHAM: Now, are you responsible for the 13 operation of East Bay MUD SIM? 14 MR. SKINNER: I'm responsible for the preparation of 15 model SIM. 16 MR. BIRMINGHAM: Okay. When I say, "East Bay MUD 17 SIM," I'm referring to what I believe you have stated in 18 your testimony is, "EBMUD SIM." Is that correct? 19 MR. SKINNER: Correct. 20 MR. BIRMINGHAM: Now, am I correct that the testimony 21 of all of the other East Bay MUD witnesses was based upon 22 an analysis of the impacts derived from East Bay MUD SIM? 23 MR. SKINNER: I think you -- to some extent, yes. 24 MR. BIRMINGHAM: Well, let me go down the list again. 25 Mr. Skinner, your testimony, East Bay MUD Exhibit Number 4, CAPITOL REPORTERS (916) 923-5447 2541 1 and the appendices are -- relate to East Bay MUD SIM? 2 MR. SKINNER: Correct. 3 MR. BIRMINGHAM: Okay. Mr. Grace, in your 4 preparation of East Bay MUD Exhibit Number 5, it's 5 entitled, "Impacts of SWRCB alternatives on Camanche 6 discharge temperatures," did you rely on the use of East 7 Bay MUD SIM? 8 MR. GRACE: Yes. 9 MR. BIRMINGHAM: Did you rely on any other model? 10 MR. GRACE: No. 11 MR. BIRMINGHAM: Dr. Hanson, I believe in your oral 12 summary of your testimony you referred to reliance upon 13 simulations run under East Bay MUD SIM; is that correct? 14 DR. HANSON: I relied on both the results of the East 15 Bay MUD SIM modeling as well as the analyses that Mr. Grace 16 presented. 17 MR. BIRMINGHAM: In the preparation of your 18 testimony, East Bay MUD Exhibit Number 6, did you rely on 19 any other modeling? 20 DR. HANSON: No. 21 MR. BIRMINGHAM: Mr. -- 22 C.O. CAFFREY: Mr. Nomellini? Excuse me, 23 Mr. Birmingham. 24 MR. NOMELLINI: It would be helpful to those of us in 25 the back if they could use the microphone when they CAPITOL REPORTERS (916) 923-5447 2542 1 answered. 2 C.O. CAFFREY: I'm sorry. We're having some 3 difficulty hearing the witnesses in the back of the room. 4 Let's take the time to pull the mic around. Sorry we don't 5 have more of them. 6 MR. BIRMINGHAM: Mr. Nuzum, in preparing East Bay MUD 7 Exhibit 7 which is entitled, "Impacts of SWRCB alternatives 8 on reservoirs, fisheries, and recreation," did you rely on 9 the modeling analysis prepared using East Bay MUD SIM? 10 MR. NUZUM: Yes, I did. 11 MR. BIRMINGHAM: Did you rely on any other modeling 12 analysis? 13 MR. NUZUM: No, I did not. 14 MR. BIRMINGHAM: With respect to East Bay MUD Exhibit 15 Number 8, which is entitled, "Delta inflow from the 16 Mokelumne River in comparison to other river systems," did 17 you rely on East Bay MUD SIM for that -- actually, there 18 wasn't any modeling required for that testimony, isn't that 19 right, Mr. Nuzum? 20 MR. NUZUM: This was not any modeling associated with 21 that. 22 MR. BIRMINGHAM: Mr. Lampe, with respect to the 23 preparation of East Bay MUD Exhibit 9, "Impacts of State 24 Water Resources Control Board alternatives on East Bay MUD 25 service area," did you rely on East Bay MUD SIM? CAPITOL REPORTERS (916) 923-5447 2543 1 MR. LAMPE: I did, yes. 2 MR. BIRMINGHAM: Did you rely on any other models? 3 MR. LAMPE: No. 4 MR. BIRMINGHAM: And in the preparation of Exhibit 5 Number 10, East Bay MUD settlement agreement, did you rely 6 on any models other than East Bay MUD SIM? 7 MR. LAMPE: No, none other than East Bay MUD SIM. 8 MR. BIRMINGHAM: But in preparation of East Bay MUD 9 Exhibit 10, you did rely on East Bay MUD SIM? 10 MR. LAMPE: That's correct. 11 MR. BIRMINGHAM: Now, somebody during their testimony 12 said that East Bay MUD SIM is based on 74 years of 13 historical data. Who said that? I believe it was 14 Mr. Skinner. Is that correct, Mr. Skinner? 15 MR. SKINNER: The fundamental hydrologic input is 16 derived from historic records. 17 MR. BIRMINGHAM: And, Dr. Hanson, during your 18 response to Ms. Forster's question you said that East Bay 19 MUD SIM was based upon the historic hydraulic conditions. 20 Do you recall saying that? 21 DR. HANSON: I do recall that. 22 MR. BIRMINGHAM: Okay. Now, Mr. Skinner, are you 23 familiar with PROSIM? 24 MR. SKINNER: Somewhat. 25 MR. BIRMINGHAM: What is PROSIM? CAPITOL REPORTERS (916) 923-5447 2544 1 MR. SKINNER: My understanding is that it's a 2 hydrologic model of the Central Valley Project. 3 MR. BIRMINGHAM: And are you familiar with DWRSIM? 4 MR. SKINNER: A little bit. 5 MR. BIRMINGHAM: And what is DWRSIM? 6 MR. SKINNER: It is also a hydrologic model of the 7 central -- of the State Water Project. 8 MR. BIRMINGHAM: Mr. Skinner, I have just put up on 9 the overhead Figure A-1, "Drought planning sequence 10 hydrology," which I believe is taken from your testimony at 11 page A-4; is that correct? And your testimony is East Bay 12 MUD Exhibit Number 4. 13 MR. SKINNER: That's correct. 14 MR. BIRMINGHAM: Now, I'd like to focus for a few 15 moments, if we can, on 1978. Now, is it correct that for 16 purposes of analysis East Bay MUD SIM "estimates" the flow 17 in the Mokelumne River rather than using the actual flow? 18 MR. SKINNER: That's correct. For the hydrologic 19 studies in the EBMUD SIM the actual historic hydrology for 20 1978 has been replaced with a year that is derived from the 21 average historic runoff in '76 and '77. 22 MR. BIRMINGHAM: So when you say that East Bay MUD 23 SIM is based upon 74 years of historical data, what you're 24 really saying is it's based upon 74 years historical data 25 from which flows for 1978 are calculated rather than based CAPITOL REPORTERS (916) 923-5447 2545 1 on actual flows? 2 MR. SKINNER: Actually, the -- every year's 3 hydrologic input is derived from historic records, but 4 the -- the -- the inflow for 1978 is derived from the 5 average of inflows in '76 and '77. 6 MR. BIRMINGHAM: So looking at East Bay MUD Exhibit 7 4, Appendix A, Figure A-1, the calculated flows that are 8 used in East Bay MUD SIM are 180,000 -- I'm sorry, 185,000 9 acre-feet; is that correct? 10 MR. SKINNER: That's correct. 11 MR. BIRMINGHAM: And 185,000 acre-feet represents the 12 average of the flows in 1976 and 1977. Is that correct? 13 MR. SKINNER: That's correct. 14 MR. BIRMINGHAM: In the record of hydrology is it 15 correct that 1976 and 1977 are among the driest years? 16 MR. SKINNER: That's correct. They are very dry 17 years. 18 MR. BIRMINGHAM: But -- 19 C.O. CAFFREY: That's merely the hour indication. I 20 presume you need more time? 21 MR. BIRMINGHAM: I do. And I would make a request 22 for additional time. 23 C.O. CAFFREY: Absolutely. How much more -- do you 24 have an estimate? I know it depends on their answers, but 25 just roughly. CAPITOL REPORTERS (916) 923-5447 2546 1 MR. BIRMINGHAM: Actually, this panel is being very 2 responsive. And I would estimate an additional half hour. 3 C.O. CAFFREY: The reason I'm asking is because 4 Mr. Maddow, I believe, is to follow you but we are going to 5 stop today at a quarter to 4:00. So, perhaps, unless your 6 cross-examination is only going to be 10 minutes long, Mr. 7 Maddow, and it's going to take at least a half an hour 8 here, it might just be reasonable to break for the day 9 after Mr. Birmingham. 10 How much time do you think you'll need? 11 MR. MADDOW: More than ten minutes, Mr. Chair. 12 C.O. CAFFREY: All right. Then let's just see how 13 this goes and, then, we'll look at it again, but our goal 14 is to wind it up at a quarter to 4:00 today. Thank you, 15 sir. 16 Go ahead, Mr. Birmingham. 17 MR. BIRMINGHAM: Thank you, Mr. Chairman. And with 18 respect to the flows that are depicted on Figure A-1 from 19 East Bay MUD Exhibit 4, Appendix A, in 1979, is that a 20 calculated flow as well, Mr. Skinner? 21 MR. SKINNER: That's correct. 22 MR. BIRMINGHAM: How did you calculate the flow to be 23 included in the -- excuse me, in East Bay MUD SIM for the 24 year 1979? 25 MR. SKINNER: If 1978 had been a very dry year PG&E's CAPITOL REPORTERS (916) 923-5447 2547 1 storage above our project would become depleted as well 2 and would require some replenishment that would carryover 3 into 1979. That would result in less inflow coming into 4 our system. 5 MR. BIRMINGHAM: Now, is it correct, Mr. Skinner, 6 that East Bay MUD SIM is different than PROSIM and DWRSIM 7 in that DWRSIM and PROSIM use actual hydrology as opposed 8 to estimated hydrology? 9 MR. ETHERIDGE: I would object as to what time 10 period, or what years. 11 C.O. CAFFREY: Can you be a little more specific, 12 Mr. Birmingham? 13 MR. BIRMINGHAM: During the record of hydrology which 14 are used as inputs for the models. 15 MR. SKINNER: I'm not really sure that PROSIM or 16 DWRSIM use actual hydrology for that simulation period. 17 MR. BIRMINGHAM: But you don't know they -- 18 MR. SKINNER: I believe their records are derived 19 from historic records. 20 MR. BIRMINGHAM: Okay. Mr. Russell, sorry to pick on 21 you, but you're probably familiar with DWRSIM -- 22 C.O. CAFFREY: Excuse me, Mr. Birmingham. We're 23 going to need a mic for Mr. Russell. Maybe he can switch 24 chairs with somebody and come to the table here. Thank 25 you, gentlemen. CAPITOL REPORTERS (916) 923-5447 2548 1 MR. BIRMINGHAM: Are you aware, Mr. Russell, that 2 DWRSIM uses an estimate of flows similar to the estimate of 3 flows for 1978 that's used in East Bay MUD SIM? 4 MR. RUSSELL: I'd like to expand on the answer if I 5 may, please? 6 MR. BIRMINGHAM: Absolutely. Please. 7 MR. RUSSELL: The Department of Water Resources has 8 published a document called "Central Valley future water 9 supplies for use in DWRSIM." The hydrology is very 10 complex. And it goes through the process of taking -- it's 11 called measured, or observed flows and, then, making the 12 necessary calculations to produce input into the model from 13 that. 14 So the answer in short is, yes. And this document 15 is an example of how this effort is taken into 16 consideration. The document is a September 1995 document. 17 And it's entitled, "Central Valley future water supplies 18 for use in DWRSIM." It's produced by the Department of 19 Water Resources and, specifically, the hydrology 20 development unit of the modeling support branch. And I 21 would have to question Ms. Whitney if it's already in the 22 staff exhibits. 23 C.O. CAFFREY: It doesn't have to be in the staff 24 exhibits for you to use it as part of your answer. 25 MR. RUSSELL: I suspect that it is. CAPITOL REPORTERS (916) 923-5447 2549 1 C.O. CAFFREY: You suspect that it is not? 2 MR. RUSSELL: I suspect that it is. 3 MR. BIRMINGHAM: Mr. Lampe, during your oral summary 4 of testimony you characterized the natural hydrology in 5 1978 as a wet year. Is that correct? 6 MR. LAMPE: That's correct. 7 MR. BIRMINGHAM: But DWRSIM, Mr. Skinner, estimates 8 1978 to be a dry year -- excuse me, East Bay MUD SIM -- let 9 me restate the question. Thank you. 10 Isn't it correct, Mr. Skinner, that East Bay MUD 11 SIM uses hydrology to calculate, or to estimate that East 12 Bay -- that 1978 is a dry year? 13 MR. SKINNER: Yeah. As Mr. Lampe said in his 14 testimony, the third year in the drought planning sequence 15 is a dry year derived from the records in '76 and '77 16 instead of the wet year that actually occurred. 17 MR. BIRMINGHAM: Mr. Russell, with respect to DWRSIM, 18 are you aware of any year in which a wet year is replaced 19 with a dry year? 20 MR. RUSSELL: To my knowledge, none. 21 MR. BIRMINGHAM: Now, I'd like to talk a few moments 22 if I can about the impact analysis that's based upon 23 DWRSIM -- excuse me, East Bay MUD SIM. I just put on the 24 overhead Exhibit A, "Summary of Camanche conditions, May 25 through October under five allocation alternatives," from CAPITOL REPORTERS (916) 923-5447 2550 1 East Bay MUD Exhibit 5, page 13, which is your testimony. 2 Isn't that correct, Mr. Grace? 3 MR. GRACE: That's my testimony, yes. 4 MR. BIRMINGHAM: Now, is what I've placed on the 5 overhead a copy of Exhibit A from East Bay MUD Exhibit 5? 6 MR. GRACE: It appears to be, yes. 7 MR. BIRMINGHAM: Now, I'd like to focus for a few 8 moments if I can on what the bars represent. Is it correct 9 that the bars that are totally dark represent years in 10 which the water in Camanche Reservoir becomes mixed? 11 MR. GRACE: It represents years in which it is 12 unstratified. The volume, as compared, there's less than 13 190,000 acre-feet in the system and there's less than 14 10,000 acre-feet in Camanche. There's a legend at the 15 bottom of the exhibit. 16 MR. BIRMINGHAM: Okay. Thank you. Now, is it 17 correct, Mr. Grace, that based upon East Bay MUD SIM you 18 concluded that under water right priority alternative three 19 in 1978 Camanche Reservoir would be unstratified with a 20 volume of less than 10,000 acre-feet? 21 MR. GRACE: Yes. 22 MR. BIRMINGHAM: And is it correct, Mr. Grace, that 23 that is indicated by this, the dark bar in the fourth 24 column from the left to which I am currently pointing? 25 MR. GRACE: Take it up, that's it. CAPITOL REPORTERS (916) 923-5447 2551 1 MR. BIRMINGHAM: Now, it's correct, isn't it, 2 Mr. Grace, that 1978 was actually a wet year? 3 MR. GRACE: So I'm told. 4 MR. BIRMINGHAM: Now, if 1978 were a wet year, isn't 5 it correct that Camanche Reservoir would have been 6 stratified throughout the year? 7 MR. GRACE: I can't say it would be correct, but it 8 would certainly change the record. As you can tell from my 9 appendix in my testimony, I merely went through the output 10 from EBMUD SIM and looked at the storage in the reservoirs. 11 It is unlikely that it would be less than 10,000 acre-feet, 12 but I can't say for sure that it would be. 13 MR. BIRMINGHAM: Well, if actual runoff in 1978 were 14 in excess of 800,000 acre-feet, it's extremely likely, 15 isn't it, Mr. Grace, that there would have been more than 16 10,000 acre-feet in storage at Camanche? 17 MR. GRACE: Yes. 18 MR. BIRMINGHAM: Mr. Skinner, if you would like to 19 answer that question, you can. 20 MR. GRACE: It would probably be better for 21 Mr. Skinner to answer that question. 22 MR. BIRMINGHAM: All right. Mr. Skinner, isn't it 23 correct that if the runoff that was used East Bay MUD SIM 24 were the actual runoff for 1978 as opposed to the estimated 25 runoff, Camanche would be stratified in 1978 under water CAPITOL REPORTERS (916) 923-5447 2552 1 right priority alternative three? 2 MR. SKINNER: It is likely that Camanche would 3 recover sooner during 1978. However, you can see at the 4 end of '77 that it becomes unstratified. And that would 5 carry on in to the -- probably carry on in to the beginning 6 of 1978 prior to the rainfall falling and running off 7 allowing the system to recover. 8 MR. BIRMINGHAM: So it would be unstratified for a 9 portion of the year, but stratified during that portion of 10 the year following the rainy season? 11 MR. SKINNER: That's likely. 12 MR. BIRMINGHAM: And the same thing is true with 13 respect to 1978 under water right priority alternative 14 four; isn't that right, Mr. Skinner? 15 MR. GRACE: You should probably ask me. And I would 16 say, yes, it would be the same for all these alternatives 17 that you see. 18 MR. BIRMINGHAM: So if we used actual hydrology to 19 prepare Exhibit A to East Bay MUD Exhibit 4, rather than 20 the estimated hydrology for 1978, we can eliminate that 21 dark bar in 1978 in each one of the columns representing a 22 different alternative. Isn't that right? 23 MR. GRACE: Quite likely. 24 MR. BIRMINGHAM: And with respect to 1979, 1979 25 appears to be a year in which the reservoir is unstratified CAPITOL REPORTERS (916) 923-5447 2553 1 for a portion of the year; is that correct, Mr. Grace? 2 MR. GRACE: Yes. 3 MR. BIRMINGHAM: Now, if, in fact, we used actual 4 hydrology for 1978 and 1979 rather than the estimated 5 hydrology, isn't it correct that we can eliminate the dark 6 bar under the alternatives for 1979 that is represented in 7 the columns for water right priority alternative three -- 8 MR. GRACE: Let me answer -- 9 MR. BIRMINGHAM: -- water right priority alternative 10 four and the watershed allocation alternative? 11 MR. GRACE: You're asking me to speculate on volumes 12 in the reservoir. They would be different. You would 13 expect them to be higher but the question is: Would there 14 be a combined volume in those two reservoirs, Pardee and 15 Camanche, greater than 190,000? And I just can't answer 16 you. 17 But if it were, if there were and other people can 18 speculate, then, it would be stratified and you could 19 remove those -- those dark bars and replace them with 20 asterisks in Exhibit A. The key is the storage in Camanche 21 once you've added water, subtracted water. That is how 22 this is analyzed. 23 MR. BIRMINGHAM: What was the actual runoff in 1978, 24 Mr. Skinner? 25 MR. SKINNER: I don't recall, but from Figure A-1 it CAPITOL REPORTERS (916) 923-5447 2554 1 appears to be slightly over 800,000 acre-feet. 2 MR. BIRMINGHAM: Does it appear that it's 3 approximately 850,000 acre-feet? 4 MR. SKINNER: Possibly. 5 MR. BIRMINGHAM: So with respect to the preparation 6 of Exhibit A to East Bay MUD Exhibit 5, there is 7 approximately 665,000 acre-feet for 1978 which is 8 unaccounted for, Mr. Skinner? 9 MR. SKINNER: Are you saying that 850 minus 185 10 equals 665? 11 MR. BIRMINGHAM: If my math is correct. 12 MR. SKINNER: I believe so. 13 MR. BIRMINGHAM: And that additional 665,000 14 acre-feet, certainly, would have affected carryover in 15 Camanche Reservoir from 1978 to 1979? 16 MR. SKINNER: In some way, yes. 17 MR. BIRMINGHAM: And that additional carryover in 18 storage in Camanche Reservoir would have reduced the 19 likelihood that 1979 would be a year in which Camanche 20 Reservoir was unstratified? 21 MR. SKINNER: I would say that's correct, it would 22 reduce the likelihood. 23 MR. BIRMINGHAM: Now, Dr. Hanson, in your testimony 24 you had a table which was very similar to Exhibit A from 25 East Bay MUD Exhibit 5, which is being shown on the CAPITOL REPORTERS (916) 923-5447 2555 1 overhead presently. Isn't that correct? 2 DR. HANSON: That is correct. 3 MR. BIRMINGHAM: And for the water years 1978 and 4 1979 the table that was in your testimony indicated that 5 the anadromous fishery in the Lower Mokelumne would have 6 been affected by water temperatures being released from 7 Camanche, is that correct? 8 DR. HANSON: Under the modeled scenario, that is 9 correct. 10 MR. BIRMINGHAM: But under the actual hydrology isn't 11 it correct that for the years 1978 and 1979 the additional 12 water that was actually present would have reduced the 13 likelihood that those anadromous fisheries would have 14 impaired? 15 DR. HANSON: It would have reduced that likelihood. 16 MR. BIRMINGHAM: In fact, if there were 850,000 17 acre-feet of runoff in 1978 it would have eliminated that 18 likelihood; isn't that correct? 19 DR. HANSON: I don't have the information to say it 20 would have eliminated it, but those analyses certainly 21 could be performed. 22 MR. BIRMINGHAM: Now, Mr. Lampe, I have put on the 23 overhead Table 12, which comes from East Bay MUD Exhibit 9, 24 which is your testimony. Is that correct? 25 MR. LAMPE: Exhibit 9 is my testimony. That's CAPITOL REPORTERS (916) 923-5447 2556 1 correct. 2 MR. BIRMINGHAM: And is the Table 12 that is 3 currently being shown on the overhead projector a copy of 4 the Table 12 from your testimony? 5 MR. LAMPE: It appears to be, yes. 6 MR. BIRMINGHAM: Now, would you explain for us, 7 again, what Table 12 represents? 8 MR. LAMPE: Table 12 represents the comparative 9 impacts of the various releases, fishery flow releases on 10 the Mokelumne River comparing the 1961 agreement, that is 11 our current requirement, with the JSA flows and with the 12 three State Board alternatives and comparing -- varying 13 just those inputs, comparing what the impacts are in terms 14 of deficiencies to water deliveries to East Bay MUD 15 customers. 16 MR. BIRMINGHAM: Now, let's focus for a moment if we 17 can on the 1997 JSA, which is referenced to Study 18 22210-6042. 19 MR. LAMPE: 1997 JSA? 20 MR. BIRMINGHAM: Yes, excuse me. Is it correct that 21 Table 12 from your testimony, East Bay MUD Exhibit 9, shows 22 that under that alternative there would be 12 years in 23 which there would be deficiencies of 15 percent or more? 24 MR. LAMPE: That's correct. 25 MR. BIRMINGHAM: Now, do those 12 years of study CAPITOL REPORTERS (916) 923-5447 2557 1 include 1978? 2 MR. LAMPE: They do. 3 MR. BIRMINGHAM: And do they include 1979? 4 MR. LAMPE: As part of the 12 years, I can't tell 5 you. I don't have that data before me at the moment. 6 MR. BIRMINGHAM: Now, if we were to use the actual 7 hydrology in East Bay MUD SIM rather than the estimated 8 hydrology, isn't it correct that the number of years in 9 which there would be deficiencies of 15 percent or more 10 under study number 22210-6042 would be reduced at least 11 from 12 to 11? 12 MR. LAMPE: I believe that would be correct. I think 13 there would be a similar reduction for all alternatives, 14 they would vary to the same degree. 15 MR. BIRMINGHAM: Now, during Dr. Hanson's response to 16 Ms. Forster's question, Board Member Forster's question he 17 said that the modeling analysis that was prepared for the 18 1961 agreement alternative, which is referred to in Table 19 12 from Exhibit Number 9, is -- as study number 2210-6050 20 best represents reality. Do you recall Dr. Hanson 21 testifying to that affect? 22 MR. LAMPE: I'm sorry, I don't. 23 MR. BIRMINGHAM: Well, the record will speak for 24 itself. Let me ask you a question. Under the 1961 25 agreement alternative depicted in Table 12 for the years in CAPITOL REPORTERS (916) 923-5447 2558 1 which there would be deficiencies of 15 percent or greater, 2 does that Number 8 include 1978? 3 MR. LAMPE: It does. Yes. Yes, it does. And as I 4 indicated in answering your last question, it's included in 5 all alternatives here. So if you modified water year 1978 6 you would see the difference in all of the alternatives 7 probably by one year. 8 MR. BIRMINGHAM: Did East Bay MUD impose deficiencies 9 on its customers in 1978? 10 MR. LAMPE: I believe it was a recovery year and I 11 would think -- 12 MR. SKINNER: Yeah. 13 MR. BIRMINGHAM: You testified -- 14 MR. LAMPE: I don't know whether the District did, or 15 did not. 16 MR. BIRMINGHAM: Did it impose deficiencies in 1979? 17 MR. LAMPE: I don't believe so. I don't have that 18 data with me. 19 MR. BIRMINGHAM: But your recollection is that it did 20 not? 21 MR. LAMPE: I was not with the District at that time. 22 My recollection from the data is that we did not. 23 MR. BIRMINGHAM: Okay. But we do know that this 24 table if we used actual hydrology -- it's Table 12, if we 25 used actual hydrology in East Bay MUD SIM as opposed to the CAPITOL REPORTERS (916) 923-5447 2559 1 estimated hydrology all of these numbers would change? 2 MR. LAMPE: By one. And they would change -- they 3 would not change relative to one another. They would 4 change in absolutes. I believe that was the point 5 Dr. Hanson made earlier. 6 MR. BIRMINGHAM: You said, "by one." In some cases 7 it may be two; isn't that correct? 8 MR. LAMPE: There's a theoretic possibility, but 9 until that analysis is run, I couldn't assert that. 10 MR. BIRMINGHAM: Let me ask you have you -- 11 Mr. Skinner, this may be an appropriate question for you. 12 Has East Bay MUD conducted an analysis of the water supply, 13 or fishery impacts, or recreation impacts using actual 14 hydrology as opposed to estimated hydrology? 15 MR. ETHERIDGE: I would object. Clarify as to what 16 time period. Because as Mr. Skinner has testified, the 17 hypothetical hydrology, the drought planning sequence is 18 only two years, 1978 and 1979. And the other years are 19 actual hydrology. So I request he list which years he's 20 referring to. 21 C.O. CAFFREY: Can you be a little more specific, or 22 rephrase the question, Mr. Birmingham? 23 MR. BIRMINGHAM: I think that Mr. Etheridge has 24 adequately described the question because he's correct 25 there's only two years in which there are estimated CAPITOL REPORTERS (916) 923-5447 2560 1 hydrology. So the question, of course, assumes that he 2 uses actual hydrology 1978 and '79 as opposed to the 3 estimated hydrology. But let me ask the question, again, 4 so we have it clearly on the record. 5 C.O. CAFFREY: Thank you, Mr. Birmingham. 6 MR. BIRMINGHAM: Mr. Skinner, has East Bay MUD 7 prepared an analysis of the impacts on the different 8 alternatives being considered by the Water Board using the 9 East Bay MUD SIM actual hydrology over the 74-year period 10 of record rather than the simulated hydrology for 1978 and 11 '79? 12 MR. SKINNER: Other than the studies that we 13 presented here, I'm not aware of any other work that we've 14 done for this proceeding. 15 MR. BIRMINGHAM: Mr. Nuzum, your testimony, it's on 16 page 1 of East Bay MUD Exhibit Number 7, there is a Table 17 9, do you have that document in front of you? 18 MR. NUZUM: I do. 19 MR. BIRMINGHAM: It shows -- this is a table which 20 depicts the summary of Pardee Reservoir fishery and 21 recreation impacts, February through October, under five 22 allocation alternatives; is that correct? 23 MR. NUZUM: That is correct. 24 MR. BIRMINGHAM: And I believe you testified that 25 this table was prepared using East Bay MUD SIM; is that CAPITOL REPORTERS (916) 923-5447 2561 1 correct? 2 MR. NUZUM: That's correct. 3 MR. BIRMINGHAM: Now, you've heard other witnesses 4 here testify that if East Bay MUD SIM were used -- had used 5 actual hydrology rather than estimated hydrology for 1978 6 the analysis of the impacts would have changed. Do you 7 recall the witnesses testifying to that? 8 MR. NUZUM: Yes, I do. 9 MR. BIRMINGHAM: Referring to Table 9 on page 19 of 10 East Bay MUD Exhibit 7, isn't it correct that if actual 11 hydrology had been used in preparing Table 9 rather than 12 simulated hydrology for 1978, the dark bar depicted in each 13 column for water right priority alternatives in 1978 would 14 be eliminated? 15 MR. NUZUM: Frankly, I don't believe that's true. 16 MR. BIRMINGHAM: Table 10 on East Bay MUD Exhibit 17 Number 7, which appears on page 20, is a table which 18 contains a summary of Camanche Reservoir fishery and 19 recreation impacts, January through December, under five 20 allocation alternatives. Is that correct? 21 MR. NUZUM: Yes, that is correct. 22 MR. BIRMINGHAM: And Table 10 was also prepared using 23 East Bay MUD SIM; is that correct? 24 MR. NUZUM: Yes, it was. 25 MR. BIRMINGHAM: Let's focus on water right priority CAPITOL REPORTERS (916) 923-5447 2562 1 alternative number three in 1978. Is it correct that if 2 actual hydrology were used rather than simulated hydrology 3 those dark bar across the entire year would be eliminated? 4 MR. NUZUM: You may be correct and you may not be, 5 because in this particular case the fish that you've just 6 killed are still dead. 7 MR. BIRMINGHAM: Well, let's focus on 1979. 8 MR. NUZUM: All right. 9 MR. BIRMINGHAM: And 1979 is depicted on Table 10. 10 It shows that there is a dark bar under water right 11 priority number three; is that correct? 12 MR. NUZUM: That is correct. 13 MR. BIRMINGHAM: That dark bars shows a severe 14 fishery and recreation impact with reservoir elevation 15 below 160 feet; isn't that correct? 16 MR. NUZUM: That's correct. 17 MR. BIRMINGHAM: Now, if actual hydrology were used 18 for 1978 and 1979 isn't it correct that the fishery would 19 have at least begun to recover by 1979? 20 MR. NUZUM: That is true. 21 MR. BIRMINGHAM: So in 1979 that dark bar would be 22 eliminated, or at least the dark bar would be of different 23 duration? 24 MR. NUZUM: Yes, it would. 25 MR. BIRMINGHAM: Now, Mr. Nuzum, during your CAPITOL REPORTERS (916) 923-5447 2563 1 testimony you said that you thought that the East Bay MUD 2 SIM actually presented a conservative approach, that it 3 underestimated the impacts. Is that -- do you recall 4 testifying to that during your oral summary? 5 MR. NUZUM: If I said that I misspoke. 6 MR. BIRMINGHAM: Okay. At least for 1978 and 1979 7 East Bay MUD SIM overestimates impacts; isn't that correct? 8 MR. NUZUM: From your questions and the answers, that 9 is correct. 10 MR. BIRMINGHAM: Okay. Mr. Russell, the final 11 questions that I have are for you. 12 MR. RUSSELL: Okay. 13 MR. BIRMINGHAM: In DWR Exhibit 32 which is your 14 testimony, during your summary of the testimony to date you 15 made a few corrections with respect to the Lower Mokelumne 16 River agreement. Is that correct? 17 MR. RUSSELL: That's correct. 18 MR. BIRMINGHAM: Now, is it correct that the United 19 States Bureau of Reclamation has not signed the Mokelumne 20 River Memorandum of Understanding? 21 MR. RUSSELL: To the best of my knowledge, that's 22 correct. 23 MR. BIRMINGHAM: Now, when you say that the 24 Department agrees to be responsible for providing any 25 additional water as may be directed by the Board to meet CAPITOL REPORTERS (916) 923-5447 2564 1 East Bay MUD's obligation to meet Delta objectives, is the 2 Department of Water Resources assuming all of that 3 responsibility? 4 MR. RUSSELL: I think it would be appropriate for me 5 to reread exactly what was in there so we can capture what 6 our intent is. 7 MR. BIRMINGHAM: Please. 8 MR. RUSSELL: This is in -- 9 MR. BIRMINGHAM: I believe it's on page 4 of DWR 10 Exhibit 32. 11 MR. RUSSELL: That's correct. I'm going to reread 12 the last sentence. "The Department agrees to meet its 13 share of the responsibility for providing any additional 14 water as may be directed by the Board to be reasonable and 15 appropriate to meet the Agency's theoretical obligation to 16 meet the Delta objectives at this hearing." 17 If I can emphasize it's "its share." 18 MR. BIRMINGHAM: Can I ask what you mean by "its 19 share"? 20 MR. RUSSELL: That is to be determined by the Board 21 through the process of the hearing. I suspect if we go to 22 a Phase VIII, much of this information will come to light 23 and we will have a better understanding. At this point 24 it's premature to make that determination. 25 MR. BIRMINGHAM: Do you anticipate that the State CAPITOL REPORTERS (916) 923-5447 2565 1 Water Resource Control Board would impose some obligation 2 on the Bureau of Reclamation to assume some share of East 3 Bay MUD's obligation? 4 MR. RUSSELL: I think it's presumptuous of me to 5 determine what the Board would do. Thank you. 6 MR. BIRMINGHAM: I don't have any further questions. 7 Thank you very much. 8 C.O. CAFFREY: Thank you. I'm really tempted to say 9 that it's probably presumptuous of me to figure out what 10 the Board is going to say what the may be. That means the 11 process works. 12 MR. BIRMINGHAM: Mr. Caffrey? 13 C.O. CAFFREY: Yes, Mr. Birmingham. 14 MR. BIRMINGHAM: During my first cross-examination of 15 Mr. Lampe I marked for identification Westlands Exhibit 23 16 and Westlands Exhibit 26. I would like to withdraw those 17 exhibits if I may. 18 C.O. CAFFREY: Withdraw them? 19 MR. BIRMINGHAM: Yes. 20 C.O. CAFFREY: All right, sir. Thank you. 21 MR. NOMELLINI: Mr. Chairman, I object to that 22 withdrawal. I think they're in the record and ought to 23 stay there. They weren't offered into evidence, they're 24 just in the record. They have to stay there so we can 25 understand the testimony. CAPITOL REPORTERS (916) 923-5447 2566 1 C.O. CAFFREY: I don't believe they were testified 2 to; is that correct? 3 MR. BIRMINGHAM: I don't believe they were testified 4 to. 5 MS. LEIDIGH: There were questions. 6 C.O. CAFFREY: Go ahead, Ms. Leidigh. 7 MS. LEIDIGH: I think there was a substantial amount 8 of time spent asking questions about them. And that part 9 of the record may very well be incomprehensible if we do 10 not have these exhibits to look at. It may be 11 incomprehensible anyway, but I think without them -- 12 MR. BIRMINGHAM: Mr. Caffrey? 13 C.O. CAFFREY: Yes. 14 MR. BIRMINGHAM: The questions that I asked were in 15 an attempt, as you observed and Mr. Stubchaer observed, 16 were an attempt to lay a foundation. Mr. Lampe was unable 17 to answer those questions during those attempts. And I 18 think by me formally withdrawing those objects now, then, 19 the record will be clear. I have copies of the exhibits. 20 Although, Mr. Hilworth (phonetic) may not appreciate it, 21 I'll give copies to anybody else that wants to ask 22 questions about them later. 23 C.O. CAFFREY: Mr. Stubchaer has a question first. 24 C.O. STUBCHAER: Mr. Birmingham, are you going to 25 reintroduce these exhibits in another phase? CAPITOL REPORTERS (916) 923-5447 2567 1 MR. BIRMINGHAM: I don't think that I will, no. I 2 don't think so, no. 3 C.O. CAFFREY: We've off the record for a moment. 4 (Off the record from 3:39 p.m. to 3:42 p.m.) 5 C.O. CAFFREY: Here's the ruling. We're going to 6 leave the exhibits numbered, but we're not going to accept 7 them. And they're in the general record rather than the 8 evidentiary record, that way people can look at them and 9 they're available. All right. Mr. Maddow -- I'm sorry, 10 Mr. Birmingham, were you going to respond to that? 11 MR. BIRMINGHAM: No, I was not going to respond, 12 Mr. Caffrey, but I respect the Board's decision. I want to 13 point out that I do have additional copies of Westlands 14 Exhibit 26 at this time if anybody is interested in having 15 a copy of that. 16 C.O. CAFFREY: Appreciate that. Everybody hear what 17 Mr. Birmingham said, he has copies of 26. Thank you. 18 Mr. Maddow? 19 MR. MADDOW: My question, Mr. Chairman, is whether 20 Mr. Etheridge could make available prior to the time the 21 hearing is resumed, copies of those exhibits which were 22 used today to illustrate the testimony of his witnesses. 23 And I would ask the same question of Mr. Sandino with 24 regard to the revised version of Dwight Russell's 25 testimony. CAPITOL REPORTERS (916) 923-5447 2568 1 C.O. CAFFREY: Will you, gentlemen, make copies 2 available to all the parties in the very near future? 3 MR. ETHERIDGE: Yes. What we will do is make 20 4 copies and send those to the State Board as well as serve 5 every party on the official service list. 6 C.O. CAFFREY: All right. Thank you. Did you hear 7 that, Mr. Maddow? 8 MR. MADDOW: I did. It would be appreciated if we 9 could get them prior to the time the hearing resumes. 10 C.O. CAFFREY: I think there's a lot of goodwill here 11 and I urge you to get those to the other parties with all 12 dispatch. The other thing, I want to remind everybody that 13 we are not meeting next week -- we're still in session, I'd 14 appreciate some attention here. We are not meeting next 15 week. We will be back in this room on Tuesday, August 16 18th, I believe for three more days of ecstasy. Is it 17 three days, right, Ms. Leidigh? 18 MS. LEIDIGH: Yes, it is. 19 C.O. CAFFREY: 18, 19th and 20th. And we will resume 20 the cross-examination of this panel of witnesses. We have 21 a number of cross-examiners: Mr. Maddow, Mr. Minasian, 22 Mr. Johnston, Mr. Godwin, Mr. Sorenson, Mr. Shephard, 23 Ms. Zolezzi, Mr. Jackson, and Mr. Nomellini. 24 So we have a ways to go with this panel before we 25 even ask if there's any redirect, or recross. So as is CAPITOL REPORTERS (916) 923-5447 2569 1 always the case in the Delta proceedings, you're never 2 really quite sure where these cases in chief are going to 3 take us, but suffice it to say that we thank this panel and 4 observe you have tweaked the interest of a number of 5 parties. 6 Ms. Forster? 7 MEMBER FORSTER: Aren't you going to ask if we have 8 any questions? 9 C.O. CAFFREY: It's not your turn yet. We have a 10 long way to go, perhaps, three days of cross-examination 11 the way we're progressing today, but we shall see when we 12 get there. With that, then, we thank you all. We will see 13 you again on August 18th. Gentlemen, you all need to be 14 here. Thank you. 15 (The proceedings concluded at 3:50 p.m.) 16 ---oOo--- 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 2570 1 REPORTER'S_CERTIFICATE __________ ___________ 2 3 STATE OF CALIFORNIA ) ) ss. 4 COUNTY OF SACRAMENTO ) 5 I, MARY R. GALLAGHER, certify that I was the 6 Official Court Reporter for the proceedings named herein, 7 and that as such reporter I reported in verbatim shorthand 8 writing those proceedings; that I thereafter caused my 9 shorthand writing to be reduced to typewriting, and the 10 pages numbered 2349 through 2571 herein constitute a 11 complete, true and correct record of the proceedings. 12 IN WITNESS WHEREOF, I have subscribed this 13 certificate at Sacramento, California, on this 15th day of 14 August, 1998. 15 16 ________________________________ MARY R. GALLAGHER, CSR #10749 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 2571