2572 01 02 03 04 05 STATE WATER RESOURCES CONTROL BOARD 06 07 08 09 10 PUBLIC HEARING 11 12 13 13 1998 BAY-DELTA WATER RIGHTS HEARING 14 15 16 17 HELD AT: 18 BONDERSON BUILDING 18 901 P STREET 19 SACRAMENTO, CALIFORNIA 19 20 20 21 21 TUESDAY, AUGUST 18, 1998 22 9:00 A.M. 22 23 23 24 24 Reported by: ESTHER F. WIATRE 25 CSR NO. 1564 25 2573 01 APPEARANCES 01 BOARD MEMBERS: 02 02 JOHN CAFFREY, COHEARING OFFICER 03 JAMES STUBCHAER, COHEARING OFFICER 03 JOHN W. BROWN 04 MARY JANE FORSTER 04 MARC DEL PIERO 05 05 STAFF MEMBERS: 06 06 WALTER PETTIT, EXECUTIVE DIRECTOR 07 VICTORIA WHITNEY, CHIEF BAY-DELTA UNIT 07 THOMAS HOWARD, SUPERVISING ENGINEER 08 08 COUNSEL: 09 09 WILLIAM R. ATTWATER, CHIEF COUNSEL 10 BARBARA LEIDIGH 10 11 11 12 12 13 13 14 14 15 15 16 16 17 17 18 18 19 19 20 20 21 21 22 22 23 23 24 24 25 25 2574 01 REPRESENTATIVES 01 02 PRINCETON CODORA GLENN IRRIGATION DISTRICT, et al.: 02 03 FROST, DRUP & ATLAS 03 134 West Sycamore Street 04 Willows, California 95988 04 BY: J. MARK ATLAS, ESQ. 05 05 JOINT WATER DISTRICTS: 06 06 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON: 07 P.O. BOX 1679 07 Oroville, California 95965 08 BY: WILLIAM H. BABER III, ESQ. 08 09 CALIFORNIA SPORTFISHING PROTECTION ALLIANCE: 09 10 ROBERT J. BAIOCCHI 10 P.O. Box 357 11 Quincy, California 11 12 BELLA VISTA WATER DISTRICT: 12 13 BRUCE L. BELTON, ESQ. 13 2525 Park Marina Drive, Suite 102 14 Redding, California 96001 14 15 WESTLANDS WATER DISTRICT: 15 16 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 16 400 Capitol Mall, 27th Floor 17 Sacramento, California 95814 17 BY: THOMAS W. BIRMINGHAM, ESQ. 18 and 18 AMELIA THOMAS, ESQ. 19 19 THE BAY INSTITUTE OF SAN FRANCISCO: 20 20 GARY BOBKER 21 55 Shaver Street, Suite 330 21 San Rafael, California 94901 22 22 CITY OF ANTIOCH, et al.: 23 23 FREDERICK BOLD, JR., ESQ. 24 1201 California Street, Suite 1303 24 San Francisco, California 94109 25 25 2575 01 REPRESENTATIVES 01 02 LEAGUE OF WOMEN VOTERS: 02 03 ROBERTA BORGONOVO 03 2480 Union Street 04 San Francisco, California 94123 04 05 UNITED STATES DEPARTMENT OF THE INTERIOR: 05 06 OFFICE OF THE SOLICITOR 06 2800 Cottage Way, Room E1712 07 Sacramento, California 95825 07 BY: ALF W. BRANDT, ESQ. 08 CALIFORNIA URBAN WATER AGENCIES: 08 09 BYRON M. BUCK 09 455 Capitol Mall, Suite 705 10 Sacramento, California 95814 10 11 RANCHO MURIETA COMMUNITY SERVICES DISTRICT: 11 12 MCDONOUGH, HOLLAND & ALLEN 12 555 Capitol Mall, 9th Floor 13 Sacramento, California 95814 13 BY: VIRGINIA A. CAHILL, ESQ. 14 14 CALIFORNIA DEPARTMENT OF FISH AND GAME: 15 15 OFFICE OF ATTORNEY GENERAL 16 1300 I Street, Suite 1101 16 Sacramento, California 95814 17 BY: MATTHEW CAMPBELL, ESQ. 17 18 NATURAL RESOURCES DEFENSE COUNCIL: 18 19 HAMILTON CANDEE, ESQ. 19 71 Stevenson Street 20 San Francisco, California 94105 20 21 ARVIN-EDISON WATER STORAGE DISTRICT, et al.: 21 22 DOOLEY HERR & WILLIAMS 22 3500 West Mineral King Avenue, Suite C 23 Visalia, California 93291 23 BY: DANIEL M. DOOLEY, ESQ. 24 24 25 25 2576 01 REPRESENTATIVES 01 02 SACRAMENTO MUNICIPAL UTILITY DISTRICT: 02 03 LESLIE A. DUNSWORTH, ESQ. 03 6201 S Street 04 Sacramento, California 95817 04 05 SOUTH SAN JOAQUIN IRRIGATION DISTRICT, et al.: 05 06 BRAY, GEIGER, RUDQUIST & NUSS 06 311 East Main Street, 4th Floor 07 Stockton, California 95202 07 BY: STEVEN P. EMRICK, ESQ. 08 08 EAST BAY MUNICIPAL UTILITY DISTRICT: 09 09 EBMUD OFFICE OF GENERAL COUNSEL 10 375 Eleventh Street 10 Oakland, California 94623 11 BY: FRED S. ETHERIDGE, ESQ. 11 12 GOLDEN GATE AUDUBON SOCIETY: 12 13 ARTHUR FEINSTEIN 13 2530 San Pablo Avenue, Suite G 14 Berkeley, California 94702 14 15 CONAWAY CONSERVANCY GROUP: 15 16 UREMOVIC & FELGER 16 P.O. Box 5654 17 Fresno, California 93755 17 BY: WARREN P. FELGER, ESQ. 18 18 THOMES CREEK WATER ASSOCIATION: 19 19 THOMES CREEK WATERSHED ASSOCIATION 20 P.O. Box 2365 20 Flournoy, California 96029 21 BY: LOIS FLYNNE 21 22 COURT APPOINTED REPS OF WESTLANDS WD AREA 1, et al.: 22 23 LAW OFFICES OF SMILAND & KHACHIGIAN 23 601 West Fifth Street, Seventh Floor 24 Los Angeles, California 90075 24 BY: CHRISTOPHER G. FOSTER, ESQ. 25 25 2577 01 REPRESENTATIVES 01 02 CITY AND COUNTY OF SAN FRANCISCO: 02 03 OFFICE OF THE CITY ATTORNEY 03 1390 Market Street, Sixth Floor 04 San Francisco, California 94102 04 BY: DONN W. FURMAN, ESQ. 05 05 CAMP FAR WEST IRRIGATION DISTRICT, et al.: 06 06 DANIEL F. GALLERY, ESQ. 07 926 J Street, Suite 505 07 Sacramento, California 95814 08 08 BOSTON RANCH COMPANY, et al.: 09 09 J.B. BOSWELL COMPANY 10 101 West Walnut Street 10 Pasadena, California 91103 11 BY: EDWARD G. GIERMANN 11 12 SAN JOAQUIN RIVER GROUP AUTHORITY, et al.: 12 13 GRIFFTH, MASUDA & GODWIN 13 517 East Olive Street 14 Turlock, California 95381 14 BY: ARTHUR F. GODWIN, ESQ. 15 15 NORTHERN CALIFORNIA WATER ASSOCIATION: 16 16 RICHARD GOLB 17 455 Capitol Mall, Suite 335 17 Sacramento, California 95814 18 18 PLACER COUNTY WATER AGENCY, et al.: 19 19 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 20 400 Capitol Mall, 27th Floor 20 Sacramento, California 95814 21 BY: JANET GOLDSMITH, ESQ. 21 22 ENVIRONMENTAL DEFENSE FUND: 22 23 DANIEL SUYEYASU, ESQ. 23 and 24 THOMAS J. GRAFF, ESQ. 24 5655 College Avenue, Suite 304 25 Oakland, California 94618 25 2578 01 REPRESENTATIVES 01 02 CALAVERAS COUNTY WATER DISTRICT: 02 03 SIMON GRANVILLE 03 P.O. Box 846 04 San Andreas, California 95249 04 05 CHOWCHILLA WATER DISTRICT, et al.: 05 06 GREEN, GREEN & RIGBY 06 P.O. Box 1019 07 Madera, California 93639 07 BY: DENSLOW GREEN, ESQ. 08 08 CALIFORNIA FARM BUREAU FEDERATION: 09 09 DAVID J. GUY, ESQ. 10 2300 River Plaza Drive 10 Sacramento, California 95833 11 11 SANTA CLARA VALLEY WATER DISTRICT: 12 12 MORRISON & FORESTER 13 755 Page Mill Road 13 Palo Alto, California 94303 14 BY: KEVIN T. HAROFF, ESQ. 14 15 CITY OF SHASTA LAKE: 15 16 ALAN N. HARVEY 16 P.O. Box 777 17 Shasta Lake, California 96019 17 18 COUNTY OF STANISLAUS: 18 19 MICHAEL G. HEATON, ESQ. 19 926 J Street 20 Sacramento, California 95814 20 21 GORRILL LAND COMPANY: 21 22 GORRILL LAND COMPANY 22 P.O. Box 427 23 Durham, California 95938 23 BY: DON HEFFREN 24 24 25 25 2579 01 REPRESENTATIVES 01 02 SOUTH DELTA WATER AGENCY: 02 03 JOHN HERRICK, ESQ. 03 3031 West March Lane, Suite 332 East 04 Stockton, California 95267 04 05 COUNTY OF GLENN: 05 06 NORMAN Y. HERRING 06 525 West Sycamore Street 07 Willows, California 95988 07 08 REGIONAL COUNCIL OF RURAL COUNTIES: 08 09 MICHAEL B. JACKSON, ESQ. 09 1020 Twelfth Street, Suite 400 10 Sacramento, California 95814 10 11 DEER CREEK WATERSHED CONSERVANCY: 11 12 JULIE KELLY 12 P.O. Box 307 13 Vina, California 96092 13 14 DELTA TRIBUTARY AGENCIES COMMITTEE: 14 15 MODESTO IRRIGATION DISTRICT 15 P.O. Box 4060 16 Modesto, California 95352 16 BY: BILL KETSCHER 17 17 SAVE THE SAN FRANCISCO BAY ASSOCIATION: 18 18 SAVE THE BAY 19 1736 Franklin Street 19 Oakland, California 94612 20 BY: CYNTHIA L. KOEHLER, ESQ. 20 21 BATTLE CREEK WATERSHED LANDOWNERS: 21 22 BATTLE CREEK WATERSHED CONSERVANCY 22 P.O. Box 606 23 Manton, California 96059 23 24 24 25 25 2580 01 REPRESENTATIVES 01 02 BUTTE SINK WATERFOWL ASSOCIATION, et al.: 02 03 MARTHA H. LENNIHAN, ESQ. 03 455 Capitol Mall, Suite 300 04 Sacramento, California 95814 04 05 CITY OF YUBA CITY: 05 06 WILLIAM P. LEWIS 06 1201 Civic Center Drive 07 Yuba City 95993 07 08 BROWNS VALLEY IRRIGATION DISTRICT, et al.: 08 09 BARTKEWICZ, KRONICK & SHANAHAN 09 1011 22nd Street, Suite 100 10 Sacramento, California 95816 10 BY: ALAN B. LILLY, ESQ. 11 11 CONTRA COSTA WATER DISTRICT: 12 12 BOLD, POLISNER, MADDOW, NELSON & JUDSON 13 500 Ygnacio Valley Road, Suite 325 13 Walnut Creek, California 94596 14 BY: ROBERT B. MADDOW, ESQ. 14 15 GRASSLAND WATER DISTRICT: 15 16 DON MARCIOCHI 16 22759 South Mercey Springs Road 17 Los Banos, California 93635 17 18 SAN LUIS CANAL COMPANY: 18 19 FLANNIGAN, MASON, ROBBINS & GNASS 19 3351 North M Street, Suite 100 20 Merced, California 95344 20 BY: MICHAEL L. MASON, ESQ. 21 21 STONY CREEK BUSINESS AND LAND OWNERS COALITION: 22 22 R.W. MCCOMAS 23 4150 County Road K 23 Orland, California 95963 24 24 25 25 2581 01 REPRESENTATIVES 01 02 TRI-DAM POWER AUTHORITY: 02 03 TUOLUMNE UTILITIES DISTRICT 03 P.O. Box 3728 04 Sonora, California 95730 04 BY: TIM MCCULLOUGH 05 05 DELANO-EARLIMART IRRIGATION DISTRICT, et al.: 06 06 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 07 P.O. Box 1679 07 Oroville, California 95965 08 BY: JEFFREY A. MEITH, ESQ. 08 09 HUMANE FARMING ASSOCIATION: 09 10 BRADLEY S. MILLER 10 1550 California Street, Suite 6 11 San Francisco, California 94109 11 12 CORDUA IRRIGATION DISTRICT, et al.: 12 13 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 13 P.O. Box 1679 14 Oroville, California 95965 14 BY: PAUL R. MINASIAN, ESQ. 15 15 EL DORADO COUNTY WATER AGENCY: 16 16 DE CUIR & SOMACH 17 400 Capitol Mall, Suite 1900 17 Sacramento, California 95814 18 BY: DONALD B. MOONEY, ESQ. 18 19 GLENN COUNTY FARM BUREAU: 19 20 STEVE MORA 20 501 Walker Street 21 Orland, California 95963 21 22 MODESTO IRRIGATION DISTRICT: 22 23 JOEL MOSKOWITZ 23 P.O. Box 4060 24 Modesto, California 95352 24 25 25 2582 01 REPRESENTATIVES 01 02 PACIFIC GAS & ELECTRIC: 02 03 RICHARD H. MOSS, ESQ. 03 P.O. Box 7442 04 San Francisco, California 94120 04 05 CENTRAL DELTA WATER AGENCY, et al.: 05 06 NOMELLINI, GRILLI & MCDANIEL 06 P.O. Box 1461 07 Stockton, California 95201 07 BY: DANTE JOHN NOMELLINI, ESQ. 08 and 08 DANTE JOHN NOMELLINI, JR., ESQ. 09 09 TULARE LAKE BASIN WATER STORAGE UNIT: 10 10 MICHAEL NORDSTROM 11 1100 Whitney Avenue 11 Corcoran, California 93212 12 12 AKIN RANCH, et al.: 13 13 DOWNEY, BRAND, SEYMOUR & ROHWER 14 555 Capitol Mall, 10th Floor 14 Sacramento, California 95814 15 BY: KEVIN M. O'BRIEN, ESQ. 15 16 OAKDALE IRRIGATION DISTRICT: 16 17 O'LAUGHLIN & PARIS 17 870 Manzanita Court, Suite B 18 Chico, California 95926 18 BY: TIM O'LAUGHLIN, ESQ. 19 19 SIERRA CLUB: 20 20 JENNA OLSEN 21 85 Second Street, 2nd Floor 21 San Francisco, California 94105 22 22 YOLO COUNTY BOARD OF SUPERVISORS: 23 23 LYNNEL POLLOCK 24 625 Court Street 24 Woodland, California 95695 25 25 2583 01 REPRESENTATIVES 01 02 PATRICK PORGENS AND ASSOCIATES: 02 03 PATRICK PORGENS 03 P.O. Box 60940 04 Sacramento, California 95860 04 05 BROADVIEW WATER DISTRICT, et al.: 05 06 DIANE RATHMANN 06 07 FRIENDS OF THE RIVER: 07 08 BETSY REIFSNIDER 08 128 J Street, 2nd Floor 09 Sacramento, California 95814 09 10 MERCED IRRIGATION DISTRICT: 10 11 FLANAGAN, MASON, ROBBINS & GNASS 11 P.O. Box 2067 12 Merced, California 95344 12 BY: KENNETH M. ROBBINS, ESQ. 13 13 CENTRAL SAN JOAQUIN WATER CONSERVATION DISTRICT: 14 14 REID W. ROBERTS, ESQ. 15 311 East Main Street, Suite 202 15 Stockton, California 95202 16 16 METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA: 17 17 JAMES F. ROBERTS 18 P.O. Box 54153 18 Los Angeles, California 90054 19 19 SACRAMENTO AREA WATER FORUM: 20 20 CITY OF SACRAMENTO 21 980 9th Street, 10th Floor 21 Sacramento, California 95814 22 BY: JOSEPH ROBINSON, ESQ. 22 23 23 24 24 25 25 2584 01 REPRESENTATIVES 01 02 TUOLUMNE RIVER PRESERVATION TRUST: 02 03 NATURAL HERITAGE INSTITUTE 03 114 Sansome Street, Suite 1200 04 San Francisco, California 94194 04 BY: RICHARD ROOS-COLLINS, ESQ. 05 05 CALIFORNIA DEPARTMENT OF WATER RESOURCES: 06 06 DAVID SANDINO, ESQ. 07 CATHY CROTHERS, ESQ. 07 P.O. Box 942836 08 Sacramento, California 94236 08 09 FRIANT WATER USERS AUTHORITY: 09 10 GARY W. SAWYERS, ESQ. 10 575 East Alluvial, Suite 101 11 Fresno, California 93720 11 12 KERN COUNTY WATER AGENCY: 12 13 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 13 400 Capitol Mall, 27th Floor 14 Sacramento, California 95814 14 BY: CLIFFORD W. SCHULZ, ESQ. 15 15 SAN JOAQUIN RIVER EXCHANGE CONTRACTORS: 16 16 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON: 17 P.O. Box 1679 17 Oroville, California 95965 18 BY: MICHAEL V. SEXTON, ESQ. 18 19 SAN JOAQUIN COUNTY: 19 20 NEUMILLER & BEARDSLEE 20 P.O. Box 20 21 Stockton, California 95203 21 BY: THOMAS J. SHEPHARD, SR., ESQ. 22 22 CITY OF STOCKTON: 23 23 DE CUIR & SOMACH 24 400 Capitol Mall, Suite 1900 24 Sacramento, California 95814 25 BY: PAUL S. SIMMONS, ESQ. 25 2585 01 REPRESENTATIVES 01 02 ORLAND UNIT WATER USERS' ASSOCIATION: 02 03 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 03 P.O. Box 1679 04 Oroville, California 95965 04 BY: M. ANTHONY SOARES, ESQ. 05 05 GLENN-COLUSA IRRIGATION DISTRICT: 06 06 DE CUIR & SOMACH 07 400 Capitol Mall, Suite 1900 07 Sacramento, California 95814 08 BY: STUART L. SOMACH, ESQ. 08 09 NORTH SAN JOAQUIN WATER CONSERVATION DISTRICT: 09 10 JAMES F. SORENSEN CONSULTING CIVIL ENGINEER, INC. 10 209 South Locust Street 11 Visalia, California 93279 11 BY: JAMES F. SORENSEN 12 12 PARADISE IRRIGATION DISTRICT: 13 13 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 14 P.O. Box 1679 14 Oroville, California 95695 15 BY: WILLIAM H. SPRUANCE, ESQ. 15 16 COUNTY OF COLUSA: 16 17 DONALD F. STANTON, ESQ. 17 1213 Market Street 18 Colusa, California 95932 18 19 COUNTY OF TRINITY: 19 20 COUNTY OF TRINITY - NATURAL RESOURCES 20 P.O. Box 156 21 Hayfork, California 96041 21 BY: TOM STOKELY 22 22 CITY OF REDDING: 23 23 JEFFERY J. SWANSON, ESQ. 24 2515 Park Marina Drive, Suite 102 24 Redding, California 96001 25 25 2586 01 REPRESENTATIVES 01 02 TULARE IRRIGATION DISTRICT: 02 03 TEHAMA COUNTY RESOURCE CONSERVATION DISTRICT 03 2 Sutter Street, Suite D 04 Red Bluff, California 96080 04 BY: ERNEST E. WHITE 05 05 STATE WATER CONTRACTORS: 06 06 BEST BEST & KREIGER 07 P.O. Box 1028 07 Riverside, California 92502 08 BY: ERIC GARNER, ESQ. 08 09 COUNTY OF TEHAMA, et al.: 09 10 COUNTY OF TEHAMA BOARD OF SUPERVISORS: 10 P.O. Box 250 11 Red Bluff, California 96080 11 BY: CHARLES H. WILLARD 12 12 MOUNTAIN COUNTIES WATER RESOURCES ASSOCIATION: 13 13 CHRISTOPHER D. WILLIAMS 14 P.O. Box 667 14 San Andreas, California 95249 15 15 JACKSON VALLEY IRRIGATION DISTRICT: 16 16 HENRY WILLY 17 6755 Lake Amador Drive 17 Ione, California 95640 18 18 SOLANO COUNTY WATER AGENCY, et al.: 19 19 HERUM, CRABTREE, DYER, ZOLEZZI & TERPSTRA 20 2291 West March Lane, S.B.100 20 Stockton, California 95207 21 BY: JEANNE M. ZOLEZZI, ESQ. 21 22 ---oOo--- 22 23 23 24 24 25 25 2587 01 INDEX 01 02 PAGE 02 03 RESUMPTION OF HEARING 2588 03 04 AFTERNOON SESSION 2686 04 05 POLICY STATEMENT: 05 BY MR. WEYBRET 2589 06 06 07 EAST BAY MUNICIPAL UTILITY DISTRICT: 07 08 PANEL: 08 JOHN LAMPE 09 DAVID VOGEL 09 JOHN SKINNER 10 ROBERT NUZUM 10 JON MYERS 11 CHARLES HANSON 11 ROBERT GRACE 12 DWIGHT RUSSELL 12 CROSS-EXAMINATION: 13 BY MR. MADDOW 2595 13 BY MR. MINASIAN 2662 14 BY MR. JOHNSTON 2693 14 BY MR. SORENSON 2699 15 BY MS. ZOLEZZI 2719 15 BY MR. JACKSON 2725 16 BY MR. BRANDT 2764 16 17 NORTH DELTA WATER AGENCY, et al.: 17 18 DIRECT EXAMINATION OF HENRY KUECHLER: 18 BY MR. O'BRIEN 2690 19 19 20 ---oOo--- 21 22 23 24 25 2588 01 SACRAMENTO, CALIFORNIA 02 TUESDAY, AUGUST 18, 1998 03 ---oOo--- 04 C.O. CAFFREY: Good morning, and welcome back. This 05 is the continuation of the Bay-Delta Water Rights Hearing, 06 Phase IV. When last we met, we had just completed Mr. 07 Birmingham's cross-examination of the East Bay Municipal 08 Utility District's panel. 09 Welcome back, gentlemen. 10 Welcome back, Mr. Etheridge. Good to see you, sir. 11 MR. ETHERIDGE: Morning. 12 C.O. CAFFREY: We are going to depart from our usual 13 procedure because I had promised Mr. Shephard, I believe, 14 sir, you would have Mr. Weybret here for a policy statement 15 pertaining to Phase IV. 16 MR. SHEPHARD: Pertaining to North San Joaquin Water 17 Conservation District. 18 C.O. CAFFREY: He introduced himself to me, Mr. 19 Weybret, a little while ago before we brought down the 20 gavel. 21 Mr. Weybret, if you would like to come up, sir, and 22 make your policy statement, we would be happy to hear it. I 23 need to remind you, sir, as I remind everybody, that there 24 is a five-minute limit on policy statements. And I would 25 ask you to confine your statement. 2589 01 MR. WEYBRET: I will speak quickly and I won't exceed 02 that. Thank you very much. I appreciate the opportunity to 03 be here. 04 My name is Fred Weybret from Lodi. I am the President 05 of the North San Joaquin Water Conservation District. 06 The North San Joaquin Water Conservation District, a 07 54,000-acre entity in northern San Joaquin County, which 08 includes the City of Lodi, has been deprived of surface 09 water by actions of this Board and its predecessors. East 10 Bay Municipal Utility District of the San Francisco Bay Area 11 has been permitted to export Mokelumne River water in spite 12 of the fact that the groundwater conditions have worsened 13 drastically since the North San Joaquin Water Conservation 14 District was formed in 1948 in an effort to obtain surface 15 water from the Mokelumne River, which flows through your 16 district. 17 North San Joaquin Water Conservation District first 18 rebuffed by a predecessor of this State Water Resources 19 Control Board by its Decision 858, followed the decision 20 dictated and was again rebuffed by another predecessor of 21 the State Water Resources Control Board in Decision 893 when 22 it sought American River water rights granted to the U.S. 23 Bureau of Reclamation. American River water has not been 24 available in San Joaquin County with the result that North 25 San Joaquin Water Conservation District continues to suffer 2590 01 worsening groundwater conditions while Mokelumne River water 02 flows some 90 miles to the East Bay Municipal Utility 03 District export area. 04 We find it hard to believe that a state agency would 05 stand by and ignore watershed protection statutes and area 06 of origin protective statutes and permit Mokelumne River 07 water to either bypass this district in the East Bay 08 Municipal Utility District Mokelumne Aqueduct or flow in the 09 Mokelumne River Channel through the District to the Delta. 10 Now, in the matter before the Bay-Delta hearing pending 11 before you, the State Water Resources Control Board, we find 12 that it has proposed that North San Joaquin Water 13 Conservation District curtail its divisions [verbatim], 14 which are already so undependable as to be economically 15 impractical for our landowners to utilize. 16 Further, the State Water Resources Control Board is 17 being asked by East Bay Municipal Utility District to 18 approve a new schedule of fish water releases which would 19 further deprive North San Joaquin of its inadequate and 20 undependable Mokelumne River water supply. 21 What kind of a policy is this to first deprive a 22 protected area of surface water, except for water surplus, 23 to the needs of the exporter, East Bay Municipal Utility 24 District? And now it is proposed that we be denied a 25 significant portion of that remaining wet year surplus. It 2591 01 appears to our district that we are the victims of actions 02 as bad, or worse, than those which for so many years denied 03 the Owens Valley of its own local water. 04 We implore the State Water Resources Control Board to 05 take steps to first eliminate any curtailment of use of 06 present inadequate Mokelumne River flows to our 07 district. And second, to allocate Mokelumne River water to 08 us in amounts sufficient and dependable enough to be 09 practical and feasibly usable in the Lodi area, enabling the 10 district to arrest the decline in its critically overdrafted 11 groundwater basins. 12 Thank you very much, gentlemen, for an opportunity to 13 be here with you. 14 C.O. CAFFREY: Thank you very much, Mr. Weybret, for 15 taking the time to share your thoughts and concerns with 16 us. Appreciate it. 17 We will now return to the cross-examination of the East 18 Bay Municipal Utility District panel. I am going to read 19 the names of the cross-examiners, the last list that we had 20 a week ago, in the order that we will proceed. We already 21 heard from Mr. Birmingham. And the remaining list is: Mr. 22 Maddow, Mr. Minasian, Mr. Johnston, Mr. Godwin, Mr. 23 Sorenson, Mr. Shephard, Ms. Zolezzi, Mr. Jackson, Mr. Brandt 24 and Mr. Nomellini. 25 Anybody wishing to remove their name or is their 2592 01 anybody that we missed? 02 MR. JOHNSTON: Mr. Chairman, Mr. Godwin will not be 03 here today. 04 C.O. CAFFREY: Mr. Godwin will not be here today. All 05 right. So we are -- unless he is here in the morning and we 06 are still cross-examining from this list, he may forego his 07 opportunity. I know he understands that. 08 Ladies and gentlemen, thank you, and we will begin with 09 Mr. Maddow. 10 Good morning, sir, welcome. 11 MR. MADDOW: Good morning, Mr. Chairman and Members of 12 the Board. I am Robert Maddow appearing for the Contra 13 Costa Water District. We will have a number of overheads 14 that we will use during the presentation. Mr. Hasencamp 15 will be assisting me with that. I see that the East Bay 16 team has kind of arrayed itself, and it might help if I 17 simply said that the first person I have some questions for 18 is Mr. Myers, just a couple of questions. And then some 19 questions for Mr. Skinner, Mr. Nuzum and Mr. Lampe. I do 20 have a question for Mr. Hanson, but it will be a little 21 further down the way. So, I was thinking that we might just 22 facilitate things by having the right people at the table. 23 C.O. CAFFREY: We did very well arranging and 24 rearranging the deck chairs last time, so we will certainly 25 accommodate you. 2593 01 Let me ask you this in advance, Mr. Maddow, so I can 02 get an idea of what we are faced with. Are the 03 transparencies that you are going to put on the wall, are 04 these evidentiary exhibits that are already proposed by 05 parties, not necessarily accepted, or are they brand new 06 documents? 07 MR. MADDOW: There are between one and three documents 08 which I will offer for identification at least as CCWD 09 exhibits. And what they are is a compilation from, in 10 essence, the bottom line of four of the simulations 11 contained in Mr. Skinner's East Bay MUD Exhibit. It is 12 simply for display purposes, a compilation from evidence 13 which has been offered by East Bay MUD. But these documents 14 will be new. 15 C.O. CAFFREY: Thank you, sir. And I know you are 16 going to do this anyway, just a reminder so that we don't 17 have to keep interrupting you. As each of the documents 18 gets on the screen, if you would start out by identifying 19 them or numbering them so that we won't be hearing 20 objections and we won't have to interrupt you. 21 MR. MADDOW: In that regard, Mr. Chairman, there are a 22 number of overheads that I intend to use which are, in fact, 23 photocopies of pages from the exhibits introduced by East 24 Bay MUD, or in one case a page from a staff exhibit, 25 specifically the Draft Environmental Impact Report for this 2594 01 proceeding. 02 C.O. CAFFREY: That would be fine. 03 Thank you, sir. 04 MR. MADDOW: Since we had a little time since the last 05 day that we were here, I have spent some time working on 06 cross-examination. I tried to approach this by making the 07 questions as much as possible those types of questions which 08 can be answered yes or no and, hopefully, that will speed 09 things up a little bit. 10 Finally, I just need to say for the record that, Mr. 11 Chairman, you and other Members of the Board may recall that 12 I was formerly an attorney for the East Bay Municipal 13 Utility District. I resigned from that position more than 14 five years ago. In preparing for this cross -- 15 C.O. CAFFREY: I apologize, Mr. Maddow. Let me just 16 explain to the audience that our timing system has died of 17 overexposure. 18 MEMBER DEL PIERO: You better apologize. 19 C.O. CAFFREY: That was Mr. Del Piero, of course. 20 From this moment on, it looks, at least for today, that 21 Mr. Stubchaer will be timing you by another device. So we 22 will ask you to rely on your wristwatches, if you have them, 23 or the clock on the wall if you don't. Mr. Stubchaer will 24 by voice apprise you when have two minutes left. 25 Of course, when you cross-examine, there is a 60-minute 2595 01 goal, and we give you more time if you need it. 02 MR. MADDOW: Thank you. Just to continue the point I 03 was trying to make very briefly. In preparing this 04 cross-examination I have been in contact with counsel for 05 East Bay MUD, Mr. Etheridge and East Bay MUD's General 06 Counsel, Mr. Hellwick. I have asserted to them, written to 07 them, that the subjects on which I intend to be 08 cross-examining are entirely subjects that have been things 09 that East Bay MUD has done since I left there, specifically 10 the Joint Settlement Agreement and Memorandum of 11 Understanding that have been the subjects of their evidence. 12 And neither Mr. Hellwick nor Mr. Etheridge has offered any 13 objection to my doing this cross-examination on behalf of 14 Contra Costa Water District. 15 C.O. CAFFREY: All right, sir. 16 MR. MADDOW: I might also say, "Welcome back, Mr. Del 17 Piero." 18 MEMBER DEL PIERO: Thank you very much. 19 ---oOo--- 20 CROSS-EXAMINATION OF EAST BAY MUNICIPAL UTILITY DISTRICT 21 BY CONTRA COSTA WATER DISTRICT 22 BY MR. MADDOW 23 MR. MADDOW: My first questions are for Mr. Myers. 24 Mr. Myers, you testified that the Mokelumne River 25 represents only a tiny fraction of the Delta watershed and 2596 01 produces only two and one-half percent of the unimpaired 02 flow of the Delta watershed. 03 Is that correct? 04 MR. MYERS: Yes. 05 MR. MADDOW: Would East Bay MUD be willing to accept 06 responsibility for a 2.5 percent contribution to meeting the 07 Water Quality Control Plan objectives? 08 MR. MYERS: I am not sure I can answer that question 09 right now. 10 MR. MADDOW: Are you familiar with the Draft EIR 11 prepared by the State Board for this proceeding? 12 MR. MYERS: Yes. 13 MR. MADDOW: I am going to show you a copy of Page 14 5-III from the Draft EIR, Mr. Myers, and Mr. Hasencamp is 15 putting a transparency of the bottom portion of that on a 16 portion of the screen. 17 Mr. Myers, I would direct your attention to the bottom 18 line of that chart, the line which is entitled "Total." 19 This chart, Table 5-11, is entitled, "Base Case Water 20 Deliveries and Delivery Changes in the Critical Period 21 Annual Average." 22 Directing your attention to the row entitled "Total," 23 and sort of throwing out the highest and the lowest numbers, 24 Alternative 5 is 858,000 acre-feet. Alternative 8, which is 25 just off to the right of the view graph is, I believe, 2597 01 748,000 acre-feet. If you look at the remaining 02 alternatives, Mr. Myers, isn't it true that the total 03 delivery change for all parties, if the State Board were to 04 select any of the flow alternatives other than 5 or 8, would 05 be about 800,000 acre-feet? 06 MR. MYERS: Yes, it appears to be so. 07 MR. MADDOW: If the State Board allocates 08 responsibility for each tributary to contribute to the Water 09 Quality Control Plan flow dependent objectives in proportion 10 to the unimpaired flow, the two and a half percent you 11 spoke about, and if the total required flow was about 12 800,000 acre-feet, that would mean the Mokelumne share to 13 produce about two and a half percent would be somewhere 14 around 20, 21,000 acre-feet; isn't that correct, Mr. Myers? 15 MR. MYERS: I think that's about correct. 16 MR. MADDOW: You're unable to answer the question 17 whether East Bay MUD would be willing to make a contribution 18 of about two and a half percent to meeting those Water 19 Quality Control Plan objectives? 20 MR. MYERS: East Bay MUD's Joint Settlement Agreement 21 provides, I believe, for more water than that. 22 MR. MADDOW: Is that water being provided at a time 23 when it will assist in meeting Water Quality Control Plan 24 flow dependent objectives? 25 MR. MYERS: That is my understanding. 2598 01 MR. MADDOW: Mr. Myers, depending on tidal conditions, 02 when water passes the Woodbridge Dam, approximately how far 03 must it go before it reaches the Delta? 04 MR. MYERS: About two to three miles. 05 MR. MADDOW: That is depending on the tidal conditions? 06 MR. MYERS: I believe so. 07 MR. MADDOW: Thank you. 08 I would like to ask Mr. Skinner some questions now. To 09 begin, I would like to show you, Mr. Skinner, a copy of Page 10 E-3 from your Exhibit 4. I am going to pass one to your 11 attorney, also. Mr. Etheridge is a little past my reach. 12 As you can see, Mr. Chairman, Mr. Hasencamp has put a 13 copy of this chart up on the Board. And I need to explain 14 very briefly that this is a very dense chart, and it is 15 going to be somewhat difficult to read from the rostrum or 16 from the back of the room. So, to facilitate this 17 discussion, I have taken two portions of this chart and made 18 other view graphs simply by a photocopying process. I 19 wanted to give copies of the original document and the 20 portions to Mr. Skinner to facilitate this examination. I 21 have additional copies if Members of the Board or staff 22 would like to follow along on the hard copies. I can just 23 give those to Ms. Leidigh, perhaps. 24 C.O. CAFFREY: If I understand what you describe, Mr. 25 Maddow, you have taken a couple of charts and put them 2599 01 together on one transparency so for ease of comparison or 02 display, but they are already an exhibit, at least offered 03 for exhibit. Is that right? 04 MR. MADDOW: Let's try that. 05 Mr. Skinner, is the first page which I showed you, 06 which is labeled Table E-2, is that page, E-3, from East Bay 07 MUD Exhibit 4 which was your testimony? 08 MR. SKINNER: Yes, it appears to be, yes. 09 MR. MADDOW: For ease of reading the numbers, Mr. 10 Hasencamp, could you please put up the overhead that shows 11 above normal and below normal years' portion of that chart. 12 Mr. Skinner, could you take a quick look and verify what we 13 are showing here is simply an extract from the chart we've 14 previously identified as East Bay MUD Table E-2 from East 15 Bay MUD Exhibit 4? 16 MR. SKINNER: You've handed me two copies of dry and 17 critically dry? 18 MR. MADDOW: I also handed you two copies of the above 19 normal and below normal portions. 20 Mr. Skinner, directing your attention to the above 21 normal and below normal years' portion of the Table E-2 from 22 East Bay MUD Exhibit 4, those portions of your chart show 23 that average flows would be reduced as a result of 24 implementation of the proposed East Bay MUD settlement in 25 seven months when compared to the base case of the 1961 2600 01 agreement between East Bay MUD and Fish and Game. Is that 02 correct? 03 MR. SKINNER: For the below normal? 04 MR. MADDOW: Above normal and below normal. 05 MR. SKINNER: That is correct. 06 MR. MADDOW: You got that by looking at the two rows 07 entitled "Average" and looking at the number of entries 08 which show a minus sign. Is that correct, Mr. Skinner? 09 MR. SKINNER: That's correct. 10 MR. MADDOW: Mr. Hasencamp, could you please put up the 11 exhibit showing the dry and critical years. Again, Mr. 12 Chairman, this is the dry and critical years tables from 13 Table E-2, East Bay MUD Exhibit 4. Mr. Skinner, you might 14 want to take a quick look to make sure that that is what we 15 are both looking at. 16 MR. SKINNER: That's correct. 17 MR. MADDOW: Table E-2, East Bay MUD Exhibit 4, shows 18 that in the majority of the critical years in the summer 19 months, when the proposed East Bay MUD settlement is 20 implemented, no additional water would be reaching the 21 Delta; is that correct, Mr. Skinner? 22 MR. SKINNER: In the critical years, yes, that is 23 correct. 24 MR. MADDOW: In the dry years, if the proposed East Bay 25 MUD settlement is implemented, during the majority of the 2601 01 summer months, again, no additional water would reach the 02 Delta. Is that correct? 03 MR. SKINNER: That's correct. 04 MR. MADDOW: In July and August of the dry years, if 05 the proposed East Bay MUD settlement is implemented, is it 06 also correct that your simulation in Table E-2 shows the 07 Delta flows will not increase but, in fact, will be reduced 08 by between 10,000 and 14,000 acre-feet below what would have 09 occurred prior to implementation of the settlement? 10 MR. SKINNER: I am sorry, would you repeat that. 11 MR. MADDOW: In July and August of dry years, looking 12 at Delta inflows in comparison to the base case, the 1961 13 agreement with the Department of Fish and Game, isn't it 14 correct that your simulation shows that the Delta inflows 15 from the Mokelumne, in fact, will be reduced from 10,000 to 16 14,000 acre-feet? 17 MR. SKINNER: Are you talking about the three years, 18 three of the dry years that have the negative values? 19 MR. MADDOW: Yes. In other words, Mr. Skinner, there 20 are three years in which there are reductions between 10,000 21 and 14,000 acre-feet, and the balance of the years there is 22 just no water; is that correct? 23 MR. SKINNER: It's 13,460 is the maximum? 24 MR. MADDOW: Excuse me, I rounded. That is correct. 25 Between 10,507 and 13,460 acre-feet less than the 2602 01 presettlement conditions would be reaching the Delta in 02 three of the dry years and in the balance of the dry years 03 no additional water would be reaching the Delta under the 04 East Bay MUD settlement; is that correct? 05 MR. SKINNER: That's correct. In July and August. 06 MR. MADDOW: Returning to the critical years' portion 07 of that table, as I understand it, Mr. Skinner, in 9 of the 08 13 critical years that are listed, the proposed East Bay MUD 09 settlement would result in zero incremental flow to the 10 Delta for four consecutive months; is that correct? 11 MR. SKINNER: In how many? 12 MR. MADDOW: In 9 of the 13 critical years shown on 13 Table E-2 in East Bay MUD Exhibit 4. 14 MR. SKINNER: For the period from May through August 15 there are nine years, yes. 16 MR. MADDOW: Thank you. 17 In three of the critical years, specifically 1991, 1992 18 and 1994, implementation of the proposed settlement 19 agreement would mean that there would be no incremental flow 20 to the Delta for five consecutive months; is that correct? 21 MR. SKINNER: For the months of May through September. 22 MR. MADDOW: So, it is three years there would be five 23 consecutive months with no incremental flow under the 24 settlement; is that correct? 25 MR. SKINNER: That's correct. 2603 01 MR. MADDOW: Have you analyzed the timing of the 02 releases under the proposed East Bay MUD Memorandum of 03 Understanding and settlement agreement in relationship to 04 when the Delta needs water for the Water Quality Control 05 Plan flow dependent objectives? 06 MR. SKINNER: No, I haven't. 07 MR. MADDOW: Mr. Skinner, if you know, isn't it true 08 that the Delta is typically in surplus water conditions in 09 January, February and March of most water years? 10 MR. SKINNER: No, I don't know that that is the case, 11 whether that is the case or not. I assume that in critical 12 years it would be more likely to be in balanced conditions 13 for longer periods of time. 14 MR. MADDOW: You don't know exactly when the Delta is 15 in surplus conditions in critical years, dry years or any of 16 the years you have analyzed? 17 MR. SKINNER: That's correct. 18 MR. MADDOW: If it should be the case that in the 19 months of January, February and March, for example, which 20 are typically wetter months during most years -- isn't that 21 correct, Mr. Skinner, January, February, March are typically 22 wetter months in most water years? 23 MR. SKINNER: That's correct. 24 MR. MADDOW: If it should turn out that those are, in 25 fact, years when the Delta is in surplus water conditions, 2604 01 East Bay MUD's incremental flows under the proposed 02 settlement agreement would not assist in meeting Water 03 Quality Control Plan objectives; is that correct? 04 MR. SKINNER: If the Delta were not in balanced 05 conditions, like in wet years, then the incremental flows 06 would not assist in meeting the Delta outflows. 07 MR. MADDOW: Your simulations do not compare balanced 08 conditions or surplus water conditions with the times when 09 East Bay MUD flows would arrive at Delta as a result of 10 implementation of your settlement agreement; is that 11 correct? 12 MR. SKINNER: That's correct. 13 MR. MADDOW: In terms of fixing the responsibility for 14 meeting Water Quality Control Plan flow dependent 15 objectives, if the State Board should conclude that the 16 contribution from the Mokelumne during a repeat of, for 17 example, the critical years that we were talking about a few 18 moments ago, would -- excuse me, Mr. Skinner. I wrapped 19 myself around two questions. I would like to start again. 20 I probably confused myself more than I did you. I apologize 21 to the Board. 22 In terms of fixing responsibility for meeting Water 23 Quality Control Plan flow dependent objectives, if the State 24 Board concludes that entities on the Mokelumne need to 25 provide Delta inflow during a repeat of the nine critical 2605 01 year summer periods that we discussed in connection with 02 your Table E-2, where would that water come from if the 03 proposed East Bay MUD settlement is implemented? 04 MR. SKINNER: It's my understanding that that is the 05 evaluation that the signatories to the MOU undertook when 06 they decided to sign it. And it also is my understanding 07 that that is a significance of DWR's agreeing to backstop, I 08 guess is the termed used, the agreement. That I believe 09 that their conclusion is that they believe that they can 10 reregulate their system such that the times when the -- when 11 there is increased outflows from the Mokelumne, that they 12 can reregulate their system to make sure that that water is 13 of value to the Delta when it is needed. 14 MR. MADDOW: Just so I understand that clearly, Mr. 15 Skinner. Is it your testimony, then, that when the 16 Mokelumne is not providing the water required to meet the 17 Water Quality Control Plan flow dependent objectives, that 18 it is the East Bay MUD's expectation that the Department of 19 Water Resources will provide backstop flows? 20 MR. SKINNER: Yes. 21 MR. MADDOW: Can you show me where in the -- 22 MR. SKINNER: It's my belief that that is what DWR 23 testified, that they would provide their share of the 24 backstop flows. 25 MR. MADDOW: Their share. 2606 01 Are there others who would be providing a share of 02 backstop flows, Mr. Skinner, in your belief? 03 MR. SKINNER: I believe that the Bureau of Reclamation 04 is still deciding where they -- what they plan to do about 05 that. But they would be the other entity. 06 MR. MADDOW: Mr. Skinner, I recognize that the 07 Memorandum of Understanding is in the testimony of another 08 East Bay MUD witness and so this may not be a question which 09 you will be able to answer, but I will try in light of your 10 testimony of a moment ago. 11 Is there a provision in the Memorandum of 12 Understanding, which East Bay MUD has placed before the 13 Board, which provides for backstop flow from the Department 14 of Water Resources? 15 MR. SKINNER: I'm not really sure. 16 MR. MADDOW: Thank you. I would like to turn to a 17 slightly different subject with Mr. Skinner, and I will try 18 to speed this up, Mr. Chairman. 19 Mr. Skinner, you testified about the various elements 20 that went into East Bay MUD's SIM; is that correct? 21 MR. SKINNER: I am sorry, repeat that. 22 MR. MADDOW: Your testimony describes the various 23 elements of East Bay MUD's SIM, the modeling study about 24 which your testimony is -- 25 MR. SKINNER: Correct. 2607 01 C.O. CAFFREY: Thank you. 02 Does East Bay MUD -- 03 Mr. Maddow, excuse me for interrupting you, and I don't 04 know if you wish to use this technique, but what we allow 05 when we have panels is to, unless you specifically want to 06 ask a question of that witness, anybody on that panel -- you 07 have the option of asking any panel members to answer the 08 question. You may not want to do it that way, but I just -- 09 you do you not have to go witness by witness. It's your 10 call. 11 MR. MADDOW: Thank you, Mr. Chairman. I appreciate 12 that, and what I have attempted to do is set up the 13 cross-examination in an effort to go witness by witness 14 solely for the purpose of trying to go faster in the 15 interest of time. 16 C.O. CAFFREY: Just wanted to make sure you, as well as 17 everybody else, recognize that we actually do it that way if 18 that is the desire. 19 MR. MADDOW: Specifically, with regard to the exchange 20 Mr. Skinner and I just had about what is in the East Bay MUD 21 Memorandum of Understanding, I had not anticipated asking 22 that question. I did so solely to follow-up something he 23 said. I will be asking Mr. Lampe some questions about that 24 later. He is the witness who offered that memorandum. 25 C.O. CAFFREY: All right, sir. 2608 01 MR. MADDOW: Mr. Skinner, does East Bay MUD SIM 02 simulate the operation of the reservoirs upstream of the 03 East Bay MUD facility on the Mokelumne? 04 MR. SKINNER: No, it does not. 05 MR. MADDOW: It does not? 06 MR. SKINNER: It uses the inflow resulting from the 07 operation of those reservoirs as its basic hydrologic input. 08 MR. MADDOW: So, your simulation does not include any 09 reoperation of those facilities? 10 MR. SKINNER: No reoperation, correct. 11 MR. MADDOW: Those reservoirs are currently operating 12 for power production purposes; is that correct? 13 MR. SKINNER: That's correct, primarily. They also 14 provide some deliveries to Amador County. 15 MR. MADDOW: Who owns the largest reservoirs upstream 16 of East Bay MUD on the Mokelumne? 17 MR. SKINNER: PG&E. 18 MR. MADDOW: Do you happen to know their storage 19 capacity? 20 MR. SKINNER: Roughly, all told amongst the two largest 21 reservoirs and the other smaller reservoirs it is about 22 225,000 acre-feet. 23 MR. MADDOW: How does that compare to the size of the 24 East Bay MUD reservoirs on the Mokelumne? 25 MR. SKINNER: That's slightly larger than Pardee 2609 01 Reservoir. Pardee Reservoir now has 198,000 acre-feet. 02 MR. MADDOW: Mr. Skinner, during the portions of the 03 year when the PG&E reservoirs are diverting and temporarily 04 storing water for power production purposes, isn't it true 05 that they are, in essence, acting as consumptive uses within 06 a period of time, for a period of time within each water 07 year? If they were not storing for power purposes, the 08 water would be available for other uses, such as, perhaps, 09 meeting Water Quality Control Plan objectives? 10 MR. SKINNER: I am not sure I follow what you are 11 saying. They store for a portion of the year and they 12 release for a portion of the year. 13 MR. MADDOW: Has East Bay MUD ever considered whether 14 reoperation of the PG&E system to emphasize uses other than 15 power might mean that the utility district could make a more 16 significant impact to Water Quality Control Plan objectives? 17 MR. SKINNER: Not that I know of. 18 MR. MADDOW: PG&E has announced publicly that it is 19 considering sale of its hydroelectric facilities on the 20 Mokelumne River; is that correct? 21 MR. SKINNER: That is my understanding. 22 MR. MADDOW: I am going to move to a slightly different 23 subject again, Mr. Skinner. What I would like to do is ask 24 Mr. Hasencamp to put up a copy of Table 5 from East Bay MUD 25 Exhibit 4. 2610 01 Mr. Skinner, the transparency that is on the screen is 02 Table 5 from East Bay MUD Exhibit 4; is that correct? 03 MR. SKINNER: Just a moment. 04 MR. MADDOW: It is on Page 25. 05 MR. SKINNER: It appears to be. 06 MR. MADDOW: Mr. Skinner, this table summarizes what 07 East Bay MUD considers it to be its reasonable contribution 08 to flow dependent objectives of the Bay-Delta Water Quality 09 Control plan; is that true? 10 MR. SKINNER: The flows resulting from the Joint 11 Settlement Agreement? 12 MR. MADDOW: Yes. 13 MR. SKINNER: Yes. Perhaps John Lampe should answer 14 that. That is my understanding. 15 MR. LAMPE: That is correct. 16 MR. MADDOW: Thank you. Please let the record reflect 17 that that was Mr. Lampe concurring with Mr. Skinner's 18 answer. 19 Mr. Skinner, in terms of Delta inflow, the proposed 20 East Bay MUD settlement would result in summer flows below 21 Woodbridge Dam of 25 cubic feet per second in three months 22 of normal years; is that correct? 23 MR. SKINNER: Not necessarily. Because there is often 24 additional water in the system during those wetter years, 25 the flows would often, most often, be much higher than 2611 01 that. 02 MR. MADDOW: This table is entitled "Release 03 Requirements for Fishery." Is the 25 cfs a floor? 04 MR. SKINNER: It's a minimum expected flow, right. 05 MR. MADDOW: And in normal and dry years that minimum 06 expected flow would be 20 cfs for three or perhaps four 07 months; is that correct? 08 MR. SKINNER: As a minimum. 09 MR. MADDOW: Similarly, in critical years that minimum 10 would be 15 cfs? 11 MR. SKINNER: If that is achievable, yes. 12 MR. MADDOW: Did you hear Mr. Myers' testimony about 13 the distant water must travel down the Mokelumne to reach 14 the Delta after it passes Woodbridge Dam? 15 MR. SKINNER: Yes. 16 MR. MADDOW: Do the 15, 20 and 25 cfs flows that we 17 have just been discussing roughly correlate with the 18 simulations of zero Delta inflow that we discussed in your 19 Table E-2? 20 MR. SKINNER: In terms of timing? 21 MR. MADDOW: Yes. In other words, if the flow past 22 Woodbridge is 15 cfs in June of a critical year, would you 23 anticipate that that would be one of those critical years in 24 which there would be no incremental flow to the Delta as a 25 result of the East Bay MUD? 2612 01 MR. SKINNER: That is correct. 02 MR. MADDOW: I would like to ask Mr. Nuzum some 03 questions, please. 04 Mr. Nuzum, I am going to ask you some questions first 05 about your Exhibit 7, a few questions, and then a few about 06 your Exhibit 8. So if you have those available, you might 07 want to turn to them. 08 Beginning with Exhibit 7, you testified in response to 09 questions from Mr. Birmingham two weeks ago that you relied 10 upon the East Bay MUD SIM analyses prepared by Mr. Skinner 11 in preparing East Bay MUD Exhibit 7; is that correct? 12 MR. NUZUM: That is correct. 13 MR. MADDOW: In doing so, as I understand Exhibit 7, 14 you used those simulations which assumed a 1995 level of 15 development for simulating the operations of the East Bay 16 MUD system; is that correct? 17 MR. NUZUM: That is correct. 18 MR. MADDOW: When you summarized the impacts of State 19 Water Resources Control Board flow Alternatives 3, 4 and 5 20 on the East Bay MUD reservoir recreation and fisheries, 21 those impacts were due to what you understood to be 22 additional releases of Mokelumne water which would be 23 required under those alternatives; is that correct? 24 MR. NUZUM: Yes, that is correct. 25 MR. MADDOW: Now the purpose of this hearing is to deal 2613 01 with Bay-Delta wastewater objectives. Is that your 02 understanding? 03 MR. NUZUM: Yes. 04 MR. MADDOW: The purpose of this particular phase of 05 hearing is to deal with what East Bay MUD's responsibility 06 to contribute to meeting flow dependent water quality 07 objectives; is that correct? 08 MR. NUZUM: In part that's correct, yes. 09 MR. MADDOW: Now, if the concern is East Bay MUD water 10 -- excuse me. If the concern is East Bay MUD's reservoir 11 storage elevations, if that is your concern in regard to the 12 fisheries and recreation on the Mokelumne, would it matter 13 to you whether those water storage elevations had decreased 14 because of State Board flow Alternatives 3, 4 and 5 or 15 because of increases in the East Bay MUD demand? 16 MR. NUZUM: No. I think the affect would be the same. 17 MR. MADDOW: If the lower storage levels are a concern 18 and if East Bay MUD could not meet its share of Delta Water 19 Quality Control Plan flow dependent objectives as determined 20 by this Board, would East Bay MUD satisfy a portion of the 21 needs determined by this Board by purchasing water for 22 release on another stream? 23 MR. ETHERIDGE: I would object. That goes beyond the 24 scope of his testimony. 25 C.O. CAFFREY: Excuse me, Mr. Maddow, did you have 2614 01 something? 02 MR. MADDOW: I interrupted you, Mr. Chairman. 03 C.O. CAFFREY: I wanted to ask the witness if he feels 04 qualified to answer the question. 05 MR. NUZUM: No, sir, I don't. 06 C.O. CAFFREY: All right, then, proceed with another 07 question, please, Mr. Maddow. 08 MR. MADDOW: Have you analyzed the impacts on Mokelumne 09 River fishery which will result from East Bay MUD customer 10 demand increases over time, Mr. Nuzum? 11 MR. NUZUM: No, Mr. Maddow, I have not. 12 MR. MADDOW: Mr. Skinner, did you analyze the levels of 13 storage in the Camanche Reservoir at the 2020 level of 14 development? 15 MR. SKINNER: I am not sure what you mean by "analyze 16 the level of storage." 17 MR. MADDOW: I beg your pardon. Let me rephrase the 18 question. 19 Did you simulate the level of storage in Camanche 20 Reservoir using the 2020 level of development? 21 MR. SKINNER: That is correct. My testimony contains 22 the results of model studies at 2020 levels under the Joint 23 Settlement Agreement. 24 MR. MADDOW: Isn't it true, Mr. Skinner, that in 25 Appendix K of East Bay MUD Exhibit 4 you simulated storage 2615 01 levels at Camanche Reservoir at the 2020 level of 02 development and at the 250,000,000 gallon per day East Bay 03 MUD demand level, which are lower than the Camanche storage 04 levels resulting from implementation of State Board flow 05 Alternatives 3, 4 and 5? 06 MR. SKINNER: I guess I haven't looked at the results, 07 compared the results of that study directly. But I would 08 like to clarify that that includes -- any 2020 level study 09 includes the increases in demands by all entities on the 10 Mokelumne, not just East Bay MUD. 11 MR. MADDOW: But independent of whether or not the 12 State Board flow Alternatives 3, 4 or 5 should be 13 implemented, your simulation shows that at the level 2020 14 development and at East Bay MUD demand levels of 250,000,000 15 gallons per day, storage levels could be below those 16 addressed in Mr. Nuzum's Exhibit 7; isn't that correct? 17 MR. SKINNER: As I said, I haven't compared the storage 18 levels. However, East Bay MUD has taken -- undertook in 19 1993 additional reclamation and conservation measures that 20 are designed to ensure that its 2020 demand level is the 228 21 mgd in instead of the 250 mgd level. So that would be -- 22 the 228 study, which is also in my testimony, would more 23 closely match what the demand level that the District 24 expects to have in 2020. 25 MR. MADDOW: I understand. 2616 01 Mr. Nuzum, I would like to talk for a moment about your 02 Exhibit 8, East Bay MUD Exhibit 8, please. I believe you 03 testified, perhaps in slightly different words, that you 04 looked at geography and the directions of river flows in 05 reaching the conclusion that East Bay MUD releases under the 06 proposed settlement agreement could have little or no 07 effect on flow objectives at Vernalis or Rio Vista; is that 08 correct? 09 MR. NUZUM: Yes, it is. 10 MR. MADDOW: You didn't perform a quantitative or 11 statistical analysis in order to reach that conclusion, I 12 take it? 13 MR. NUZUM: No, I didn't. 14 MR. MADDOW: You also testified that Mokelumne River 15 flows may only contribute insignificantly to maintain the X2 16 standard from the Water Quality Control Plan; is that 17 correct? 18 MR. NUZUM: Yes, that is correct. 19 MR. MADDOW: Did you perform any quantitative analysis 20 in reaching that conclusion? 21 MR. NUZUM: I did not perform that analysis, but it was 22 performed yes. 23 MR. MADDOW: There is a quantitative analysis that 24 links East Bay MUD releases and the X2 standard from the 25 Water Quality Control Plan? 2617 01 MR. NUZUM: My belief is, yes, the study was done by a 02 consultant to the U.S. Fish and Wildlife Service, and I do 03 not have nor have I seen the results, only the conclusions 04 reached. 05 MR. MADDOW: It is not within the evidence that East 06 Bay MUD has submitted for this proceeding; is that correct? 07 MR. NUZUM: I believe that is correct. 08 MR. MADDOW: Now, Mr. Nuzum, you also testified that 09 the proposed East Bay MUD settlement would provide 10 additional flows to the Delta without significant adverse 11 impacts on East Bay MUD customers or on the Mokelumne River; 12 is that correct? 13 MR. NUZUM: Yes. I believe it is. 14 MR. MADDOW: In reaching that conclusion you relied on 15 the simulations done by Mr. Skinner? 16 MR. NUZUM: That's true. 17 MR. MADDOW: You did not do an additional quantitative 18 analysis yourself? 19 MR. NUZUM: I did not. 20 MR. MADDOW: Your testimony is that State Water 21 Resources Control Board flow Alternatives 3, 4 and 5, and 22 this is a quote from Page 10 of East Bay MUD Exhibit 8, 23 would generate no identified measurable Delta benefits; is 24 that correct? 25 MR. NUZUM: Yes, that is true. 2618 01 MR. MADDOW: But you performed no quantitative analysis 02 regarding Delta benefits which would result from the 03 Mokelumne, assuming implementation of the State Board 04 Alternatives 3, 4 or 5; is that correct? 05 MR. NUZUM: That is correct. 06 MR. MADDOW: Your Exhibit 8 is based upon looking at 07 adverse impacts on the Mokelumne and on the East Bay MUD 08 customers from implementation of the State Board's 09 alternatives, but you did not look at additional Mokelumne 10 flows. You did not look at how additional Mokelumne flows 11 under Alternatives 3, 4 or 5 helped to meet Water Quality 12 Control Plan objectives; is that correct? 13 MR. NUZUM: No, that is not correct. 14 MR. MADDOW: You did look at how the flows from East 15 Bay MUD or from the Mokelumne would assist in meeting the 16 Water Quality Control Plan objectives? 17 MR. NUZUM: Yes, Mr. Maddow, from the standpoint that 18 in the State Board's environmental document there are 19 results that indicate what the increased benefits would be 20 from Alternatives 3, 4 and 5. 21 MR. MADDOW: Are those increased benefits discussed in 22 your Exhibit 8? 23 MR. NUZUM: Yes, they are. 24 MR. MADDOW: Can you simply identify the page, Mr. 25 Nuzum? 2619 01 MR. NUZUM: Again, on Page 10 there are the sources 02 that I have used that show up on Page 10, are from the State 03 Water Resources Control Board flow alternatives, roughly 04 equivalent. 05 MR. MADDOW: Again, you have taken materials from the 06 State Board EIR, which has been included on Page 10, but you 07 have not done any independent analysis of the benefits of 08 implementation of Alternatives 3, 4 or 5; is that correct? 09 MR. NUZUM: That is correct. 10 MR. MADDOW: There is one other thing on Page 10 that 11 confused me, Mr. Nuzum. You testified there that, and this 12 is a quote, there is no demonstrably significant benefit to 13 the Water Quality Control Plan's standard, and then the 14 sentence goes on to talk about Alternative 3, 4 and 5. 15 My question is: Which Water Quality Control Plan 16 standard were you referring to in stating that conclusion? 17 In fact, the answer might be that it is a typographical 18 error and you meant the word "standard"; I want to be sure I 19 understood how you were using the phrase "Water Quality 20 Control Plan, standard." I didn't mean to rush you. 21 MR. NUZUM: Mr. Maddow, I am not sure. 22 MR. MADDOW: As you understand the Water Quality 23 Control Plan flow dependent objectives such as, say, Delta 24 outflow, does it mater which river is the source of the 25 water that is applied to meeting that standard, Mr. Nuzum? 2620 01 MR. NUZUM: Yes, it does, very much so. 02 MR. MADDOW: The Delta outflow standard is -- it 03 matters to the Delta outflow standard where the water comes 04 from? 05 MR. NUZUM: I take that to mean more than what you are 06 saying in your question. Water Quality Control Board 07 standard for outflow means a lot of things to many of us. 08 If you take into account fishery responses, in addition to 09 water quality objectives, in addition to strictly outflow 10 volumes, there is a great difference between what river 11 provides what. 12 MR. MADDOW: If there was a problem with providing the 13 outflow volume determined by the State Board to be necessary 14 because of a fishery concern on a particular tributary, 15 could the outflow standard be met by making sure that a 16 sufficient amount of water was coming from some other 17 stream? 18 MR. NUZUM: Yes. If all you're concerned about is 19 volume. 20 MR. MADDOW: So, if the State Board should decide that 21 East Bay MUD's share at a particular time should be more 22 than, in your opinion, it would be prudent to release down 23 the Mokelumne because of concerns about fishery habitat or 24 reservoir recreation on the Mokelumne. For example, in your 25 opinion, could East Bay MUD buy water from some other entity 2621 01 and have it released to some stream in order to contribute 02 to the Water Quality Control Plan quantitative outflow 03 objective? 04 MR. NUZUM: I can't answer the question. 05 MR. MADDOW: Now unfortunately I have to violate what I 06 said at the beginning. I have two questions -- I have 07 questions for two witnesses who are in the second row, Mr. 08 Grace and Dr. Hanson. They are just a couple of questions 09 each. It might make sense to have a quick shift. 10 C.O. CAFFREY: Thank you, gentlemen. 11 MR. MADDOW: I appreciate the Board's indulgence and 12 the politeness of the East Bay MUD witnesses. 13 First for Mr. Grace. In reviewing the East Bay MUD SIM 14 outputs for the preparation of your East Bay MUD Exhibit 5, 15 you worked with simulations from the 1995 level of 16 development; is that correct, Mr. Grace? 17 MR. GRACE: Yes. 18 MR. MADDOW: You did not work from the simulations of 19 the 2020 level of development; is that correct? 20 MR. GRACE: For my presentation I only used 1995. 21 Early in the process I did look at 2020. 22 MR. MADDOW: If the Camanche Reservoir storage levels 23 are lower at the 2020 level of development due to increased 24 East Bay MUD demand and increased take by other water rights 25 holders, the Camanche discharge temperatures will be 2622 01 affected in the same ways as you describe for Alternatives 02 3, 4 and 5 at the 1995 level of development; isn't that 03 correct? 04 MR. GRACE: It is a confusing question in the sense 05 that you're comparing two things. If you look at 1995 and 06 you apply the same analysis, you see the difference between 07 the alternatives, the five alternatives presented. If you 08 then look at 2020 and you apply that, you see the 09 differences between the five alternatives. So, the results 10 may be worse because there is less water in the system 11 because more is being taken out, but it is worse for all 12 alternatives. 13 MR. MADDOW: If the point of your testimony is, as I 14 understand it, Mr. Grace, is that low storage in Camanche 15 create the problems about which you testified. Is that 16 correct? 17 MR. GRACE: That is correct. And there are two points. 18 The point is that the low storage creates the temperature 19 problems, but then it is a comparison of, given the same 20 assumptions, only changing the alternatives how -- what is 21 the -- what impact in temperature do you have among the 22 alternatives is relational, which is worse. 23 So, given the same assumptions for 1995, which 24 alternatives are worse? Given the assumptions 2020 which 25 alternatives are worse? Based purely on how much storage is 2623 01 in the system. 02 MR. MADDOW: Dr. Hanson, I have a pair of questions for 03 you that I think are in the similar vein. Your analysis of 04 the Lower Mokelumne River fisheries in East Bay MUD Exhibit 05 6 was based upon EBMUD SIM simulations at the 1995 level of 06 development; is that correct? 07 DR. HANSON: That's correct. 08 MR. MADDOW: In preparing your exhibit, you did not 09 work from the 2020 simulations? 10 DR. HANSON: That is correct, I did not. 11 MR. MADDOW: If seasonal in-stream flows are reduced 12 and Camanche discharge temperatures increase due to the 13 increased level of development on the river, increased East 14 Bay MUD demand, increased take by other water rights 15 holders, the adverse impact to the Mokelumne fishery will be 16 the same as those you attributed to flow Alternatives 3, 4 17 and 5; isn't that correct? 18 DR. HANSON: I did not do that analysis. The affect of 19 the downstream fisheries' habitat is a combination of 20 in-stream flows, the release temperature, atmospheric 21 conditions, solar radiation, a variety of factors. 22 The release temperature for water entering the Lower 23 Mokelumne below Camanche is also a function of the up-stream 24 reservoir storage, as Mr. Grace has pointed out. So it is a 25 very complex interaction among a variety of variables. I 2624 01 did not do the analyses that you are pointing to. 02 MR. MADDOW: Those are all the questions I am going to 03 direct to Mr. Grace and Mr. Hanson at this time. I 04 apologize for the bouncing ball problem, Mr. Chairman. 05 C.O. CAFFREY: Perfectly all right. 06 MR. MADDOW: I do have some additional questions for 07 Mr. Skinner and I have some questions for Mr. Lampe. 08 Mr. Lampe, I would like to turn your attention to East 09 Bay MUD Exhibit 10, which is the exhibit that you prepared, 10 as I understand it. Just to refresh all of our memories, 11 the proposed East Bay MUD settlement to which you have been 12 referring is, in fact, the Memorandum of Understanding that 13 is in Appendix A to East Bay MUD Exhibit 10. Is that 14 correct? 15 MR. LAMPE: That is correct. 16 MR. MADDOW: During your cross-examination by -- I beg 17 your pardon. During your direct examination by Mr. 18 Etheridge, you worked from some additional exhibits, and as 19 I recall it was Exhibit 10U in which you testified that East 20 Bay MUD settlement under the MOU, the East Bay MUD 21 settlement would result in additional flows that would 22 benefit the Delta; is that correct? 23 MR. LAMPE: I can't exactly verify your reference, but 24 I did have a chart that did quantify specific additional 25 flows to the Delta resulting from this MOU, yes. 2625 01 MR. MADDOW: This MOU would be in effect, as I 02 understand, through the year 2031; is that correct, Mr. 03 Lampe? 04 MR. LAMPE: That is correct. 05 MR. MADDOW: Taking that time frame, I would like to 06 ask Mr. Skinner questions about his hydrologic modeling. 07 As I understand Exhibit 4, Mr. Skinner, you prepared 08 model studies using East Bay MUD SIM and simulated the 09 effects of implementation of the proposed settlement under 10 both 1995 and 2020 levels of development; is that correct? 11 MR. SKINNER: That's correct. 12 MR. MADDOW: The result of those simulations were set 13 forth in appendices to East Bay MUD Exhibit 4; is that 14 correct? 15 MR. SKINNER: That is correct. 16 MR. MADDOW: Mr. Chairman, the appendices were 17 introduced or offered as evidence by East Bay MUD. They 18 were not distributed to all of the parties. The individual 19 pages within the appendices were not numbered. In order to 20 do some of the cross-examination that I would like to do, I 21 am going to try to get to the point as quickly as I can. 22 Unfortunately, there are a lot of numbers; there are a lot 23 of pages in these appendices, so I need to work a little 24 methodically with Mr. Skinner for a moment. I would like to 25 come to a concluding point, and then I am going to have some 2626 01 identical parallel tracks of exam a little bit later that I 02 think I can shortcut with the indulgence of Mr. Etheridge 03 and Mr. Skinner by showing him something that he might look 04 at while I ask some questions of some other witnesses and 05 then bringing him back. I'm saying all that by trying to 06 get to something that I am having a hard time getting to and 07 save time. 08 C.O. CAFFREY: We appreciate your explanatory 09 introduction, Mr. Maddow. Why don't we try to number these 10 as we go, as you pointed out that you will. Staff will 11 verify if the numbers are appropriate. 12 Thank you, sir. 13 MR. MADDOW: Mr. Skinner, to begin, and perhaps the 14 simplest way to do this for the record is to refer to Pages 15 5 and 6 of East Bay MUD Exhibit 4 where there is a narrative 16 description of the appendices which contain your 17 simulations; is that correct? 18 MR. SKINNER: Yes, that is correct. 19 MR. MADDOW: Just to make sure that we are all starting 20 with the same ground rules, I would like to review those for 21 a moment. 22 Appendix F and Appendix G each assumed the 1995 level 23 of development and an East Bay MUD customer demand of 24 220,000,000 gallons per day; is that correct? 25 MR. SKINNER: That is correct. 2627 01 MR. MADDOW: Appendix F simulates the release 02 requirements under the 1961 agreement with the Department of 03 Fish and Game? 04 MR. SKINNER: That's correct. 05 MR. MADDOW: Appendix G simulates the proposed East Bay 06 MUD settlement; is that correct? 07 MR. SKINNER: That's correct. 08 MR. MADDOW: The other two appendices I want to talk 09 about are K and L. Appendices K and L each simulate the 10 2020 level of demand on the Mokelumne. Is that correct, Mr. 11 Skinner? 12 MR. SKINNER: That is correct. 13 MR. MADDOW: Appendix K simulates that Mokelumne -- let 14 me start again. 15 Appendix K simulates the Mokelumne operations with 16 estimated customer demand of 250,000,000 gallons a day. Is 17 that correct? 18 MR. SKINNER: That's correct. 19 MR. MADDOW: The difference between Appendix K and 20 Appendix L is L simulates at the 2020 level with 228,000,000 21 gallons per day? 22 MR. SKINNER: That's correct. 23 MR. MADDOW: So, you looked at two time periods, 1995 24 and 2020. In 1995 you looked at the 1961 agreement with 25 Fish and Game and compared it with the proposed East Bay MUD 2628 01 settlement; and in 2020 you looked at the proposed East Bay 02 MUD settlement, assuming two different levels of customer 03 demand within East Bay MUD. 04 Does that summarize what you did in those four 05 simulations? 06 MR. SKINNER: That's correct. 07 MR. MADDOW: Mr. Hasencamp, could you put up the page 08 from Mr. Skinner's Appendix F which shows average flow -- 09 average annual flow into the Delta in acre-feet at the 1995 10 level of development. And I brought along copies of that 11 page for Mr. Skinner and Mr. Etheridge to have before them, 12 and I have additional copies. And, again, Mr. Chairman, 13 this is not a document that I think was circulated to all of 14 the parties. It is in evidence as part of an East Bay MUD 15 exhibit. I have copies available for the staff and for the 16 Board if you would prefer to have me distribute them. 17 C.O. CAFFREY: That would be fine. Mr. Maddow, give 18 copies to the audience. Do you have copies for the audience? 19 MR. MADDOW: I have 30 or 40 of them. I will give a 20 stack to Ms. Whitney. 21 C.O. CAFFREY: It might be more important to give as 22 many copies as you have available to the audience because we 23 can see the chart. Give one hard copy to the staff; that 24 might be a better way to go if you have a limited number. 25 MR. MADDOW: I just heard the reporter ask a question. 2629 01 When I have been referring to 1995 and 2020; that is the 02 year 1995 and year 2020. 03 Let me get my bearings for a second, Mr. Skinner. 04 The chart that is on the screen, the transparency that 05 is on the screen is labeled, "CDF&G 1961 Agreement, 1995 06 Level of Development, Base Case at 220,000,000 gallons per 07 day." 08 Mr. Skinner, is it correct that this is from Appendix F 09 of your testimony? 10 MR. SKINNER: It appears to be, yes. 11 MR. MADDOW: I am going to direct your attention to the 12 number at the lower right corner of that page, Mr. Skinner. 13 The bottom row of that page is entitled, "Average." This 14 page shows a simulation which indicates average annual flow 15 into the Delta in acre-feet at the 1995 level of development 16 under the current agreement between East Bay MUD and Fish 17 and Game, the 1961 agreement, at about 291,000 acre-feet per 18 year, my rounding. Is that correct, Mr. Skinner? 19 MR. SKINNER: On a long-term average, annual basis, 20 right. 21 MR. MADDOW: Now, Mr. Hasencamp, would you put up the 22 overhead in Appendix G, please. 23 Mr. Skinner, I am giving you and Mr. Etheridge a copy 24 of the transparency that Mr. Hasencamp has put on the 25 screen, and I am going to pass out additional hard copies of 2630 01 this. 02 C.O. CAFFREY: I will just say to the staff, we only 03 need one copy. You don't have to give copies to the Board 04 Members so that we make sure that the audience has -- 05 MR. NOMELLINI: I don't think any made it to the 06 audience. 07 C.O. CAFFREY: Lets make sure that the audience gets a 08 copy of these documents, please. 09 MR. MADDOW: I will try and speed this up. I apologize 10 for all the time it's taken? 11 C.O. CAFFREY: All right, sir. 12 MR. MADDOW: Mr. Skinner the transparency which is on 13 the screen is entitled, "Mokelumne Partnership Agreement 14 1995 Level of Development, base Case, Drought Planning 15 Sequence --" 16 I beg your pardon. Mr. Hasencamp, would you put up the 17 one that is entitled, "Flow into Delta in Acre-Feet," 18 Appendix G. The first overhead in that folder. May I have 19 just a moment, Mr. Chairman. 20 C.O. CAFFREY: Let's go off the record for a second. 21 (Discussion held off record.) 22 C.O. CAFFREY: Back on the record. 23 MR. MADDOW: We now have the correct overhead on the 24 screen. I apologize for the disruption. 25 Mr. Skinner, the transparency on the screen and hard 2631 01 copy which I handed to you is entitled, "Mokelumne 02 Partnership Agreement, 1995 Level of Development Base 03 Case." 04 Is this from Appendix G to East Bay MUD Exhibit 4? 05 MR. SKINNER: I haven't verified that, but I assume 06 since the others were correct, that this one is correct as 07 well. 08 MR. MADDOW: Directing your attention to the lowest row 09 on the page, Mr. Skinner, and to the entry in the far 10 right-hand column, the total column, isn't it true that the 11 simulation of average annual flow into the Delta in 12 acre-feet at the 1995 level of development with the proposed 13 East Bay MUD settlement is that there would be a long-term 14 average Delta inflow of 298,000 acre-feet? 15 MR. SKINNER: That's correct. 16 MR. MADDOW: Again, accepting my rounding, the 17 difference between the first chart that we showed from 18 Appendix F and the second chart which we showed in Appendix 19 G is an approximate in Delta inflow of about 7,000 acre-feet 20 on a long-term average due to implementation of the East Bay 21 MUD settlement agreement. Is that correct? 22 MR. SKINNER: That is correct. However, that shows -- 23 that includes a lot of wet years. The most significant 24 difference between the Mokelumne partnership agreement or 25 Joint Settlement Agreement and the 1961 agreement is the 2632 01 increase in Delta inflow that occurs in the driest of 02 years. That would be indicated by the number that -- two 03 numbers above this average, long-term average annual, where 04 it says the minimum is about 22,000 acre-feet for this Joint 05 Settlement Agreement. 06 MR. MADDOW: A few minutes ago we reviewed Appendix E-2 07 and you testified about the periods of time in the dry and 08 critical years there would be no incremental flow for those 09 three-, four- and five-month periods; is that correct? 10 MR. SKINNER: For some periods of some months in some 11 years. 12 MR. MADDOW: In dry and critical years? 13 MR. SKINNER: Right. 14 MR. MADDOW: Thank you. 15 Mr. Hasencamp, the next overhead I would like you to 16 place on the screen is from East Bay MUD Appendix L, and 17 again it is flow into the Delta in acre-feet. 18 Mr. Skinner, here are two copies, one for you and one 19 for Mr. Etheridge. These are East Bay MUD exhibits. I 20 don't intend to introduce them as my exhibits. 21 Mr. Skinner, the transparency and the paper copy of 22 that transparency which I handed to you are headed, 23 "Mokelumne Partnership Agreement, 2020 Level of 24 Development"; is that correct? 25 MR. SKINNER: That's correct. 2633 01 MR. MADDOW: If you accept my statement to you that 02 this is from Appendix L of East Bay MUD Exhibit 4, that will 03 save you from having to do the comparison. It is, in fact, 04 from that appendix. 05 Could I direct your attention, again, to the bottom row 06 and the last column of the page. Isn't it true that the 07 long-term average, according to your simulation of inflow in 08 the Delta from the Mokelumne at the 2020 level of 09 development, is approximately 276,000 acre-feet? 10 MR. SKINNER: That's correct. 11 MR. MADDOW: Finally, Exhibit K -- I beg your pardon, 12 Appendix K, Mr. Hasencamp. This is the last one of these, 13 Mr. Chairman. Thank goodness, I will get us away from this 14 tedious part. 15 C.O. CAFFREY: That is all right, Mr. Maddow. You are 16 doing it well, according to procedure. 17 Thank you, sir. 18 MR. MADDOW: The final transparency of this series and 19 hard copy which I handed to you is entitled, "Mokelumne 20 Partnership Agreement, 2020 Level of Development," and this 21 one is a study which is identified as 97250106076. 22 This is from your Appendix K to East Bay MUD Exhibit 4; 23 is that correct, Mr. Skinner? 24 MR. SKINNER: Again, without verifying, I assume it 25 is. 2634 01 MR. MADDOW: This is entitled, "Flow into the Delta in 02 Acre-Feet," and, Mr. Skinner, referring to the last row and 03 right-hand column, isn't it correct that your simulation 04 shows that in this study, where the East Bay MUD level of 05 demand has risen to 250,000,000 gallons per day, the flow 06 into the Delta, according to this simulation would be 07 257,000 acre-feet; is that correct? 08 MR. SKINNER: That is correct. Again, that is 09 indicative of the fact that as demands of others and of the 10 district increase, then the average annual long-term inflow 11 into the Delta, including the inflow in very wet periods and 12 very dry periods would decrease. However, the driest year 13 inflows still show an increase even at these 2020 levels of 14 development over the minimum inflows that occur under the 15 1961 agreement. That is a key significance of the Joint 16 Settlement Agreement, is the increased flows in the dry 17 period. 18 MR. MADDOW: According to these simulations, however, 19 Mr. Skinner, as time goes on and as East Bay MUD demand 20 increases, that demand continues to be met, the inflows to 21 the Delta diminish as much as 41,000 acre-feet per year. 22 Isn't that correct? 23 MR. SKINNER: Portions of that demand are met. There 24 are periods of time when there is rationing imposed and the 25 frequency of those rationing events increases in the future. 2635 01 MR. MADDOW: Excuse me for interrupting you, Mr. 02 Skinner. The analysis that I just asked you to walk us 03 through concerned the long-term average annual inflows into 04 the Delta. 05 Isn't it true that when you compare the 1961 agreement, 06 in other words the presettlement agreement operations at the 07 level 1995 development, that the flows into the Delta 08 average about 41,000 acre-feet per annum more than what is 09 shown in your Appendix K to the Exhibit 4? 10 MR. SKINNER: Are you subtracting the 291,000 from the 11 257,000? 12 MR. MADDOW: Let's do it a little differently. Mr. 13 Hasencamp, could you put up what I have identified as CCWD 14 Exhibit 6. 15 C.O. CAFFREY: While that is happening, Mr. Maddow, you 16 have been cross-examining for a little bit over an hour. We 17 failed to tell you when the two-minutes came along. We 18 didn't want to break your stride. Just curious for purposes 19 of when we take a break, how much more time do you think you 20 may need? 21 MR. MADDOW: Less time than I have taken so far, Mr. 22 Chairman. I would suspect another 30 to 40 minutes. 23 C.O. CAFFREY: In that event, we might just as well -- 24 will I break your stride if we go for a break now? 25 MR. MADDOW: Not at all. 2636 01 C.O. CAFFREY: Take about a 12-minute break and come 02 back at 12:30. 03 Thank you, sir. 04 (Break taken.) 05 C.O. CAFFREY: We will resume the hearing. 06 Mr. Pettit will be joining us momentarily up at the 07 dais. I didn't want to give the impression to the audience 08 that he had fallen from grace sitting at the table earlier. 09 We didn't have the proper arrangement of chairs when we got 10 started. Mr. Pettit will be back in a few minutes and 11 joining us up here for technical advice. 12 Thank you, Mr. Maddow. Proceed. 13 MR. MADDOW: Thank your, Mr. Chairman. During the 14 break, I spoke with Mr. Etheridge, counsel for East Bay MUD, 15 and with Mr. Skinner, and I have tried to find a way to 16 avoid a way of our having to go through the laborious 17 process we just did East Bay MUD appendices. In order to do 18 that I have prepared what I have identified as -- or marked 19 for identification as Contra Costa Water District Exhibit 6. 20 I have given copies to Mr. Etheridge and Mr. Skinner, and I 21 probably have about 30 copies for the Board and staff and 22 for members of the audience. If I may impose upon Ms. 23 Whitney again -- 24 C.O. CAFFREY: Sure. And we do not need copies up 25 here. We see the transparency, as long as staff has 2637 01 sufficient copies. We would rather have them for the 02 audience and other parties. Of course, we have them in one 03 form or another in the appendices. 04 MR. MADDOW: You do have the information that is 05 contained in this exhibit in the appendices. And if I may 06 explain very briefly, as I did to counsel for East Bay MUD: 07 This chart was constructed by simply taking the four pages 08 from the appendices to Exhibit 4 which we went through so 09 laborious before the break. The assumptions in building 10 those four charts are shown under the flows governed by the 11 level of development and level of East Bay MUD demand 12 columns. The data source identifies the various appendices 13 from which the data actually came. The column which I have 14 shaded shows the numbers from each of those four charts 15 about which I asked some questions of Mr. Skinner. 16 And just to make sure that the point is clear, Mr. 17 Skinner, looking for the moment at what I have identified as 18 Contra Costa Exhibit 6 and comparing the flows into the 19 Delta under the 1961 agreement as compared to the flows into 20 the Delta under the proposed East Bay MUD settlement, in 21 terms of long-term averages and looking at the 1995 level of 22 development, this exhibit shows that the long-term average 23 inflow to the Delta would increase by about 6,600 acre-feet; 24 is that correct? 25 MR. SKINNER: In comparing the long-term average flows 2638 01 from those two model studies, that is correct. That 02 represents the -- basically, what that means is everything 03 that comes into the system and is not consumptively used, 04 flows out of the system over the long-term. During the 05 break, I was able to look at the model studies for 06 Alternatives 3 and 4, and observed that the long-term 07 average in those studies was 294,000 acre-feet, which is in 08 between the 291,000 acre-feet and 298,000 acre-feet. Again, 09 the key issue is the flows in the dry years and the 10 distribution of the flows. 11 MR. MADDOW: Thank you, Mr. Skinner. And just to 12 continue and elaborate upon what is on Exhibit 6, CCWD 13 Exhibit 6, the simulations you did in Appendices L and K 14 evaluated, or rather simulated, Mokelumne operations under 15 the year 2020 level of development; is that correct? 16 MR. SKINNER: That's correct. 17 MR. MADDOW: What those two simulations show is that as 18 East Bay MUD demand increases and as other diversions from 19 the river increase from the approximate 1995 time to the 20 approximate year 2020 time, average flow into the Delta 21 continues to decrease by somewhere between 22,000 and 41,000 22 acre-feet; is that correct? 23 MR. SKINNER: That is correct. And you said it was the 24 result of East Bay MUD's growth in demand and the growth in 25 demand by others. And that can be shown, for example, if 2639 01 you take the 228 versus the 222 mgd, the difference is about 02 six mgd, which is about 6,500 acre-feet. So, you would 03 expect that 298,000 acre-feet to decrease by 6 to 7,000 04 acre-feet. But instead it decreases by more, and that is 05 due to the growth by others. 06 MR. MADDOW: Whatever the reason for the change in 07 demands being made on the river, there is less water going 08 into the Delta as time, again, goes by under these 09 simulations? 10 MR. SKINNER: Over the long-haul there is another 11 effect that is going on that is a technical detail of 12 modeling. And that is when the reservoirs are empty and 13 there is no water, insufficient water, to meet downstream, 14 all downstream commitments, what the model does is goes into 15 what we call a negative flood control release. We do not 16 assign which of the entities gets shorted in the river. So 17 there is actually a negative flow. That would, on the 18 long-term average, tend to draw down these numbers, as 19 well. 20 MR. MADDOW: Mr. Skinner, as you know this hearing 21 concerns Bay-Delta water quality objectives. None of the 22 simulations that we have been reviewing in Exhibit 4 23 included any assumptions concerning how water from Mokelumne 24 could help to meet any of the Bay-Delta flow dependent 25 objectives from the 95 Water Quality Control Plan; is that 2640 01 correct? 02 MR. SKINNER: In terms of these simulations, these 03 simulations are for the Mokelumne River. 04 MR. MADDOW: These simulations are the East Bay MUD 05 exhibit; is that correct? 06 MR. SKINNER: I am confused. 07 MR. MADDOW: These simulations that we have been 08 discussing are contained in East Bay MUD Exhibit 4; is that 09 correct? 10 MR. SKINNER: That's correct. 11 MR. MADDOW: There are no simulations in East Bay MUD 4 12 concerning the relationship between how water from the 13 Mokelumne could impact Bay-Delta flow objectives; is that 14 correct? 15 MR. SKINNER: I am not sure. 16 MR. MADDOW: Let me try to be more precise, Mr. 17 Skinner. You did not do any simulations to try and compare 18 the timing of Mokelumne River releases with the timing of 19 water needed for any of the flow-dependent Water Quality 20 Control Plan objectives; is that correct? 21 MR. SKINNER: I did not do that myself, correct. 22 MR. MADDOW: You did not do a simulation to demonstrate 23 how much of the Delta inflow produced by the East Bay MUD 24 settlement -- strike that. Let me start again, please. I 25 apologize to the reporter. 2641 01 You did not do a simulation to demonstrate how much of 02 the Delta inflow produced by the East Bay MUD settlement 03 would be when the Delta is in surplus water conditions; is 04 that also correct? 05 MR. SKINNER: I did not do any such analysis. 06 MR. MADDOW: Did you look at the hearing notice for 07 this proceeding, Mr. Skinner? 08 MR. SKINNER: At one point in time. I guess there's -- 09 I am not sure which hearing notice you are referring to. 10 There has been a number of notices about this proceeding. 11 MR. MADDOW: That is correct. What I would like to do 12 is to hand you a copy of the May 6th, 1998 hearing notice. 13 In particular I would like to direct your attention to the 14 description of Phase IV, which is contained on Page 5 of the 15 hearing notice. I will hand you this copy. Unfortunately, 16 it is the only copy that I have. 17 Can you please read the description of the subject on 18 which the State Board is receiving evidence on this phase. 19 You need not read the footnote. 20 MR. SKINNER: It says, "For the responsibility of the 21 parties who are jointly proposing agreements in the 22 Sacramento, Mokelumne, Calaveras and Cosumnes River 23 watershed, the DWR and USBR to meet the flow-dependent 24 objectives." 25 MR. MADDOW: Can I get my copy of the notice back, Mr. 2642 01 Skinner, please. Thank you. 02 When you did the simulations contained in Exhibit 4, 03 you didn't include any new flow alternatives beyond those 04 which are in the State Board's draft base case; is that 05 correct? 06 MR. ETHERIDGE: I am confused by the term "base case." 07 Could you define that term? 08 MR. MADDOW: Perhaps I could lay a foundation for it 09 with Mr. Skinner and solve Mr. Etheridge's problem. 10 Are you familiar with the Draft EIR prepared by the 11 State Board for this proceeding, Mr. Skinner? 12 MR. SKINNER: Somewhat, yes. It's a long document. 13 MR. MADDOW: Are you familiar with the flow 14 alternatives which are contained in that Draft EIR? 15 MR. SKINNER: Generally, yes. 16 MR. MADDOW: Do those flow alternatives include the 17 East Bay MUD settlement agreement in the simulations which 18 were done by the State Board? 19 MR. SKINNER: I am sorry, would you repeat. 20 MR. MADDOW: Do the flow alternatives contained in the 21 Draft EIR for this proceeding include the proposed East Bay 22 MUD settlement agreement flows? 23 MR. SKINNER: Some of the alternatives do, yes. 24 MR. MADDOW: Did you present any simulations in Exhibit 25 4 which are new flow alternatives beyond those included in 2643 01 the Draft EIR? 02 MR. SKINNER: No, I did not. 03 MR. MADDOW: The simulations that were relied upon -- 04 strike that. 05 Were you present when Mr. Vogel, Dr. Hanson, Mr. Grace, 06 Mr. Nuzum and Mr. Lampe responded to questions by Mr. 07 Birmingham in which they indicated that the only flow 08 simulations they worked from in developing their testimony 09 were those in your East Bay MUD Exhibit 4? 10 MR. SKINNER: I was present, yes. 11 MR. MADDOW: Your simulations do not offer any evidence 12 beyond what you and I have discussed today regarding inflow 13 into the Delta, and particularly regarding the 14 responsibilities of the parties to the East Bay MUD 15 settlement to meet Water Quality Control Plan flow-dependent 16 objectives; isn't that correct? 17 MR. SKINNER: You mean my -- 18 MR. MADDOW: Yes, your simulations. 19 MR. SKINNER: I would say my simulations were provided 20 to the State Board and in conjunction with the efforts they 21 undertook to create the EIR. There is some assessment of 22 what my simulations do in terms of the Delta. But I did not 23 do that myself. 24 MR. MADDOW: Pardon me for interrupting you, Mr. 25 Skinner. There isn't anything in Exhibit 4 that adds to 2644 01 what the State Board might have done with the material the 02 State Board received from you? 03 MR. SKINNER: That's correct. 04 MR. MADDOW: Mr. Skinner, East Bay MUD has not signed 05 an agreement with either the Bureau of Reclamation or the 06 Department of Water Resources which either of those agencies 07 would provide backstop flows to make up for shortcomings to 08 the Delta contributions which would result from the East Bay 09 MUD settlement; is that correct? 10 MR. SKINNER: I am not really sure of the status of 11 those negotiations right now. 12 MR. MADDOW: To the extent that additional water over 13 and beyond the proposed East Bay MUD settlement is needed to 14 satisfy an East Bay MUD obligation which was determined by 15 the State Board for the purpose of meeting Bay-Delta water 16 quality objectives, where would that water come from? 17 MR. SKINNER: I am sorry, could you repeat? 18 MR. MADDOW: Where would that water come from? 19 MR. SKINNER: To the extent -- 20 MR. MADDOW: Excuse me, I will repeat the whole 21 question. 22 MR. MADDOW: To the extent that additional water over 23 and beyond the flows which would result from the East Bay 24 MUD settlement is needed to satisfy an East Bay MUD 25 obligation concerning Delta flow dependent objectives, which 2645 01 is determined by this Board, where would that water come 02 from? 03 MR. ETHERIDGE: I would object that that question calls 04 for speculation on what the State Board may or may not do. 05 MR. MADDOW: It's a hypothetical question. He is an 06 expert in regard to simulations of flows. I am trying to 07 understand how it is that the water quality objectives that 08 are the subject of this phase of the hearing are going to be 09 met in light of his testimony. 10 C.O. CAFFREY: I will allow the witness to give his 11 opinion as to what the Board might do under that 12 hypothetical. It goes to the Board, again, as I said a 13 number of times, to give the weight of evidence as it looks 14 through the record. 15 MR. SKINNER: I guess -- I guess I am really struggling 16 to understand what you are trying to understand, what you 17 are saying. 18 I prepared some simulations that show some additional 19 inflow to the Delta during dry periods under the JSA over 20 the '61 agreement. You're asking me where additional water 21 would come from? I guess I don't really know. 22 MR. MADDOW: You don't really know where the additional 23 water could come from? 24 MR. SKINNER: Other than from my simulations. I don't 25 know what would happen beyond what I have simulated. 2646 01 MR. MADDOW: Mr. Chairman, I think the most efficient 02 use of time would be for me to follow up that question with 03 another witness in just a few moments instead of bouncing 04 back and forth. I think I will chew up more time, so I 05 think I will proceed. 06 I have some questions for Mr. Lampe. And I am 07 referring, Mr. Lampe, to your exhibit, East Bay MUD Exhibit 08 10. On the first page of that exhibit at the end of the 09 first paragraph you refer to the manner in which the 10 proposed East Bay MUD settlement balances fishery and 11 ecosystem needs with water impacts on East Bay MUD 12 customers; is that correct? 13 MR. LAMPE: That's correct. 14 MR. MADDOW: The balance which your testimony concerns 15 is between Mokelumne River fisheries and ecosystem needs and 16 East Bay MUD customers' water supply impacts; is that 17 correct? 18 MR. LAMPE: I am sorry -- 19 MR. MADDOW: The balance to which your testimony refers 20 is between impacts in the Mokelumne ecosystem and impacts on 21 the Mokelumne River fishery as compared to water supply 22 impacts on East Bay MUD customers? 23 MR. LAMPE: That is correct. 24 MR. MADDOW: As I understand your testimony, East Bay 25 MUD has entered into a joint settlement agreement with the 2647 01 United States Fish and Wildlife Service and the California 02 Department of Fish and Game, but that agreement is not in 03 the evidence East Bay MUD has offered in this proceeding. 04 Is that correct? 05 MR. LAMPE: That is correct. Except for the flow 06 portion of that agreement which is identical to the 07 Memorandum of Understanding. 08 MR. MADDOW: The Memorandum of Understanding, then, as 09 you answered an earlier question from me today, the 10 Memorandum of Understanding is, in fact, the settlement to 11 which East Bay MUD is referring throughout its testimony; is 12 that correct? 13 MR. LAMPE: That's correct. 14 MR. MADDOW: Referring back to the Joint Settlement 15 Agreement, it was developed to satisfy federal and state 16 regulatory agencies concerning fishing in the Mokelumne 17 River; is that correct? 18 MR. LAMPE: That is correct. 19 MR. MADDOW: In developing the Joint Settlement 20 Agreement no consideration was given to Delta fisheries 21 issues, such as the spring pulse flow, for example; is that 22 correct? 23 MR. LAMPE: No specific consideration was given to 24 Delta issues; that's correct. 25 MR. MADDOW: In giving no consideration to Delta 2648 01 issues, that would include giving no consideration to the 02 flow-dependent objectives of the Water Quality Control Plan; 03 is that correct, Mr. Lampe? 04 MR. LAMPE: Perhaps I should have been more clear as I 05 hear you rearticulate your question. I said no specific 06 consideration was given to Delta issues. But there was a 07 general consideration of Delta issues in terms of the 08 addition of flow to the Delta was discussed during the 09 negotiations phase, and always considered to be net positive 10 or beneficial to the Delta. 11 MR. MADDOW: But the Joint Settlement Agreement, again, 12 was developed to satisfy federal and state regulatory 13 agencies concerning Mokelumne River fish as compared to an 14 agreement that might have been developed in order to satisfy 15 concerns about Water Quality Control Plan flow-dependent 16 objectives. 17 Is that distinction correct? 18 MR. LAMPE: That is correct. 19 MR. MADDOW: So the benefits that the MOU in your -- in 20 East Bay MUD appendix -- excuse me, East Bay MUD Exhibit 10, 21 appendix A. The benefits of that MOU were intended to 22 achieve were related to the Mokelumne River fishery habitat 23 and ecosystem and East Bay MUD customers; is that correct? 24 MR. LAMPE: You're referring now to the benefits of the 25 MOU? 2649 01 MR. MADDOW: Yes. 02 MR. LAMPE: That is not correct. The approach that the 03 District took was to insure that we had adequately protected 04 flows in the Mokelumne River and to negotiate those flows. 05 And the result of that was that we not only had adequately 06 protected the flows, but substantially increased flows in 07 the Mokelumne River. 08 The next step, and that was the Joint Settlement 09 Agreement with the California Department of Fish and Game 10 and the U.S. Fish and Wildlife Service. The next step then, 11 and I believe this was the purpose of your question, or the 12 direction of your question, leading to the Memorandum of 13 Understanding, was to determine the additional values of 14 that settlement agreement in terms of the Bay-Delta. 15 And as Mr. Skinner, I think, has provided in his 16 responses to your earlier questions, we relied on the other 17 signatories who are currently liable for the meeting or 18 satisfying the Bay-Delta flows to evaluate the benefits of 19 our settlement agreement to the Bay-Delta. And it was their 20 determination that there was significant benefit, in fact, 21 such benefit for them to enter into the Memorandum of 22 Understanding. 23 MR. MADDOW: Who are the other signatories, Mr. Lampe? 24 MR. LAMPE: If I can read from my testimony -- read 25 them by agency or by name? 2650 01 MR. MADDOW: By agency. 02 MR. LAMPE: Metropolitan Water District of Southern 03 California, the Kern County Water Agency, the State Water 04 Contractors, Westlands Water District, Tulare Lake Basin 05 Water Storage District, San Luis Delta-Mendota Water 06 Authority, the Santa Clara Valley Water District. 07 MR. MADDOW: Which of those agencies has water rights 08 at stake in this hearing, Mr. Lampe? 09 MR. LAMPE: I am sorry, I can't speak to that other 10 than their interest in the state and federal projects, which 11 is their primary source of supply. 12 MR. MADDOW: If the flows provided by the East Bay MUD 13 settlement agreement do not satisfy what this Board 14 determines to be East Bay MUD's obligation to contribute to 15 Bay-Delta flow-dependent alternatives, which of those 16 agencies would be providing water to help to meet the Delta 17 obligation? 18 MR. LAMPE: What we have offered in the settlement 19 agreement is the contribution, which we believe is the 20 appropriate contribution, from the Mokelumne River. So I 21 don't understand the nature of your question. 22 MR. MADDOW: Phase IV of this hearing is intended to 23 determine whether your contribution, in fact, satisfies what 24 this Board determines to be East Bay MUD's responsibility 25 for Bay-Delta water quality objectives; isn't that correct? 2651 01 MR. LAMPE: That is correct. 02 MR. MADDOW: If this Board should determine that water 03 over beyond what is proposed for East Bay MUD settlement 04 agreement is necessary to satisfy East Bay MUD's 05 contribution to the Bay-Delta water quality objectives, 06 which of the other signatores to your MOU would contribute 07 water to make up the difference? 08 MR. LAMPE: I am not certain I know exactly how to 09 answer your question. Let me respond partially this way. 10 If I understand your question correctly, we are now in Phase 11 IV and your question is, if the Board were not to accept the 12 settlement agreement in Phase IV. Is that the basis of your 13 question? 14 MR. MADDOW: I am happy to take an answer that talks 15 about consideration of your evidence in another phase, yes, 16 so go ahead, please. 17 MR. LAMPE: That would be, my direction here that 18 should the Board decide, for whatever reason, not to accept 19 the settlement agreement, it is my understanding that the 20 questions would be at issue in Phase VIII. 21 MR. MADDOW: As a part of the proposal you are making 22 in Phase IV, however, to the extent that there is a 23 shortfall in terms of responsibilities to meet Bay-Delta 24 water quality objectives from the Mokelumne River, East Bay 25 MUD is not offering additional water which is being 2652 01 contributed by any of the signatories to its MOU; is that 02 correct? 03 MR. LAMPE: That is correct. 04 MR. MADDOW: In view of the way in which the Joint 05 Settlement Agreement and ultimately the Memorandum of 06 Understanding were evolved, Mr. Lampe, isn't it true that 07 any contribution of Delta inflow that results from 08 implementation of your proposed settlement is really a 09 secondary consideration in comparison to the issues which 10 drove your negotiation of the Joint Settlement Agreement 11 concerning the Mokelumne ecosystem and customer needs? 12 MR. LAMPE: I don't know that I would characterize it 13 as a secondary consideration. I outlined in my earlier 14 response the stepwise process that the District used to deal 15 with both the in-stream Mokelumne issues and the Bay-Delta 16 issues. So, I wouldn't characterize it as a secondary 17 issue. There was recognition, for example, in the 18 compliance documents associated with the ESA review of the 19 Joint Settlement Agreement that there were, in fact, 20 beneficial impacts in the Delta of the Joint Settlement 21 Agreement. 22 MR. MADDOW: To talk about the ESA review, I think we 23 need to wait until we get the Fish and Wildlife Service 24 witnesses here. 25 And, Mr. Chairman, we'll just make a note of the fact 2653 01 that Mr. Lampe just opened up a very interesting subject 02 about this proposed settlement agreement, but we need to 03 wait for some witnesses that haven't appeared yet. 04 Just to go back to the question of flow-dependent 05 alternatives -- flow-dependent objectives for a moment, Mr. 06 Lampe, your settlement proposal is not based on an analysis 07 that water you would be releasing would reach the Delta when 08 it was needed for any Bay-Delta Water Quality Control Plan 09 flow-dependent objectives; that is correct, isn't it? 10 MR. LAMPE: That is correct. We relied upon the 11 analysis done by the CUWA ag export community which 12 determined that the flows, when released by the district, 13 according to the schedules that you reviewed with Mr. 14 Skinner, could, in fact, be beneficially and productively 15 used to the positive benefit of Bay-Delta. 16 MR. MADDOW: Let me go back to a question I have tried 17 twice before, and I have not phrased it well, Mr. Lampe, so 18 I am going to try it once more. 19 If this Board finds there are times when Mokelumne 20 River water would assist in meeting the Water Quality 21 Control Plan flow-dependent objectives, and if this Board 22 finds that those flows guaranteed by or provided by your 23 settlement agreement are insufficient, where would the 24 additional flow come from? 25 MR. LAMPE: If the Board determines a specific flow 2654 01 requirement for the district, those flows at the present 02 time would have to come from the Mokelumne River. 03 MR. MADDOW: Are you familiar with the term "backstop" 04 as it has been used in this proceeding with regard to other 05 settlement agreements, Mr. Lampe? 06 MR. LAMPE: I am. I am not certain that I totally 07 understand it. It's an imperfect term the way I 08 internalized it. 09 MR. MADDOW: It is a term that I think we will be 10 hearing about throughout this hearing and so, perhaps, 11 toward the end it will become clearer. In comparison 12 between the proposed East Bay MUD settlement agreement and, 13 for example, the settlement agreement that was discussed in 14 Phase II, the San Joaquin River Agreement, in that case, Mr. 15 Lampe, isn't it true that there was a statement of support 16 for that agreement signed by both the Bureau of Reclamation 17 and the Department of Water Resources? 18 MR. LAMPE: I am sorry, I can't speak to that. I 19 really am not familiar with that agreement. 20 MR. MADDOW: Thank you. 21 Mr. Myers, are you familiar with that agreement, the 22 San Joaquin River Agreement? 23 MR. MYERS: No, I am not. 24 MR. MADDOW: Mr. Skinner, are you familiar with the San 25 Joaquin River Agreement? 2655 01 MR. SKINNER: No. 02 MR. MADDOW: Mr. Lampe, in light of the testimony 03 about ecosystem and fisheries' impacts and testimony in your 04 Exhibit 9, I believe it is, about customer impacts, if there 05 were a significant impact on East Bay MUD by virtue of 06 having to provide additional water from the Mokelumne in 07 order to meet Water Quality Control Plan flow-dependent 08 objectives obligation that is determined by this Board, 09 could East Bay MUD put up money in lieu of more water to buy 10 water from other streams to assist in meeting some of those 11 flow-dependent alternatives? 12 MR. LAMPE: East Bay Municipal Utility District, 13 obviously, has substantial obligations to its customers. We 14 would explore alternative avenues available to the District 15 in order to deal with any water shortages which resulted 16 from such imposition by the Board. 17 MR. MADDOW: Mr. Chairman, I would like to conclude my 18 cross-examination with a few questions for Mr. Russell from 19 the Department of Water Resources who was presented as a 20 part of this panel. And unless something comes up by way of 21 follow-up, I have no further questions for any of the East 22 Bay MUD witnesses. 23 And, Mr. Etheridge, I want to thank you for your 24 graciousness and help with all the logistics in all of 25 this. 2656 01 Good morning, Mr. Russell and Mr. Sandino. 02 Mr. Russell, you appeared as a part of the panel in 03 East Bay MUD's case in chief in this proceeding; is that 04 correct? 05 MR. RUSSELL: That is correct. 06 MR. MADDOW: You have taken the oath. 07 MR. RUSSELL: That is correct. 08 MR. MADDOW: Mr. Russell, your testimony, which is 09 found in DWR Exhibit 32, refers to the settlement on the 10 Mokelumne reached by the export contractors and East Bay 11 MUD. Am I correct in assuming that you were referring to 12 the MOU which is in Appendix A to East Bay MUD Exhibit 10, 13 the same MOU which I have been discussing with Mr. Lampe? 14 MR. RUSSELL: A short answer is yes. But let me 15 explain a little bit. We clarified the exhibit and have 16 distributed copies to all the parties, and in that 17 clarification it was bolded out, if you will, that it was 18 part of the East Bay MUD Exhibit 10. 19 MR. MADDOW: That is the clarification I was looking 20 for. Thank you, Mr. Russell. 21 DWR did not sign that Memorandum of Understanding; is 22 that correct? 23 MR. RUSSELL: That's correct. 24 MR. MADDOW: I believe you testified in Exhibit 32 that 25 DWR did sign stipulations with the North Delta Water Agency, 2657 01 with the Yolo County Flood Control and Water Conservation 02 District, and it has agreed to the terms of the stipulation 03 with the Solano County Water Agency. 04 Is that a correct summary of your testimony? 05 MR. RUSSELL: In part it is correct. The Yolo County 06 Flood Control and Water Conservation District has signed. 07 The North Bay has signed, and we are still working out the 08 details with Solano County. 09 MR. MADDOW: But you have not signed the agreement with 10 East Bay MUD? 11 MR. RUSSELL: That is also correct. 12 MR. MADDOW: When you testified on August 6, you 13 distributed and explained a correction to DWR Exhibit 32; 14 and in that correction, as I understand it, Mr. Russell, you 15 dropped your reference from your original Exhibit 32 to the 16 Bureau of Reclamation. Is that correct? 17 MR. RUSSELL: That's correct. 18 MR. MADDOW: Can you explain why you did that? 19 MR. RUSSELL: The proceedings are ongoing, and we have 20 been working towards developing settlements. And at this 21 point in time that settlement hasn't matured to the point 22 where we thought it was appropriate to include it. 23 MR. MADDOW: What about your reference to the Bureau? 24 I want to particularly understand why that came out when you 25 revised your exhibit. 2658 01 MR. RUSSELL: To the best of my knowledge at this time, 02 we do not have an agreement with reclamation. 03 MR. MADDOW: In your revised Exhibit 32, you said that 04 the Department of Water Resources believes that the 05 settlement agreement, the proposed East Bay MUD settlement 06 agreement, satisfies East Bay MUD's obligation to contribute 07 to the Delta water quality objectives, I believe this is a 08 quote, based upon a pro rata sharing of responsibility in 09 accordance with percent of impact on Delta flow. 10 Is that correct? 11 MR. RUSSELL: I can read it directly, if you wish. 12 MR. MADDOW: Would you, please. 13 MR. RUSSELL: The settlement satisfies East Bay 14 Municipal Utility District's obligation to 15 contribute to the Delta water quality 16 objectives based upon a pro rata sharing of 17 responsibility in accordance with the percent 18 of impact on Delta inflow. (Reading.) 19 MR. MADDOW: Can you tell me where in Appendix A to 20 East Bay MUD Exhibit 10 there is a discussion of that pro 21 rata sharing of responsibility in accordance with percent of 22 impact on Delta inflow? 23 MR. RUSSELL: From my reading, I don't recall seeing it 24 in that particular document. 25 MR. MADDOW: Are you familiar with the Draft 2659 01 Environmental Impact Report for this proceeding, Mr. Russell? 02 MR. RUSSELL: I am. 03 MR. MADDOW: In concluding that the East Bay MUD 04 settlement satisfies the obligation which you just recited 05 from your testimony, which of the seven flow alternatives in 06 the Draft EIR were you referring to? 07 MR. RUSSELL: Again, we need a little bit of 08 clarification. This is in furtherance of developing 09 settlements to bring before the Board. And in this 10 particular case, a single flow alternative was not 11 identified. It was felt through the general analysis that 12 went on in developing the settlement, this would be 13 sufficient flow, given the language that I had testified 14 to. 15 MR. MADDOW: If the State Board should determine in its 16 consideration of the proposed East Bay MUD settlement that 17 the flow does not provide sufficient water to meet East Bay 18 MUD's share of the Bay-Delta water quality objectives, is 19 the Department of Water Resources prepared to make up the 20 difference? 21 MR. RUSSELL: Again, let me clarify, if I may refer 22 back to my testimony. Again, on Page 4, starts with: 23 The Department agrees to meet its share of 24 the responsibility for providing any 25 additional water as may be directed by the 2660 01 Board to be reasonable and appropriate to 02 meet the agency's theoretical obligation to 03 meet Delta objectives at this hearing. 04 (Reading.) 05 MR. MADDOW: Is the Department prepared to meet 100 06 percent of the difference between what the State Board 07 orders and what East Bay MUD settlement will provide? 08 MR. RUSSELL: What the Department will do is meet its 09 share as we understand it to be at the time, depending upon 10 the Board's allocation requirements. 11 MR. MADDOW: In your opinion, Mr. Russell, in 12 particular in reference to other settlement agreements that 13 the Department has considered, is the backstop provision in 14 the East Bay MUD settlement agreement adequate? 15 MR. RUSSELL: Yes. 16 MR. MADDOW: Is it adequate even though the United 17 States Bureau of Reclamation has not signed the agreement? 18 MR. RUSSELL: For the Department of Water Resources 19 share, yes. 20 MR. MADDOW: The Department's share is adequate. But 21 is it adequate from the standpoint of providing backstop to 22 make certain that the Water Quality Control Plan objectives 23 will be fully met? 24 MR. RUSSELL: I am not in a position to answer that at 25 this time. 2661 01 MR. MADDOW: Mr. Chairman, I think I will stop there. 02 Thank you very much. I appreciate the Board's 03 indulgence as we fumbled through some of the logistics. 04 And to Mr. Russell and Mr. Sandino and Mr. Etheridge and 05 the whole East Bay MUD team, thank you. 06 C.O. CAFFREY: Thank you, Mr. Maddow. 07 MR. MADDOW: Mr. Chairman, Ms. Whitney has reminded 08 me, and I very much appreciate it, that I should offer East 09 Bay MUD Exhibit 6, which is the chart which we discussed 10 with Mr. Skinner. 11 C.O. CAFFREY: I have not forgotten that. My thought 12 was that we would take that up -- we have that in the 13 record, and let me check with Ms. Leidigh. I was assuming 14 that we would take that matter up when we take in the 15 evidence at the end of this case in chief, just before the 16 rebuttal. 17 MR. MADDOW: That is fine with me. 18 C.O. CAFFREY: Is that appropriate, Ms. Leidigh? 19 MS. LEIDIGH: We can do that. I think it will be CCWD 20 Exhibit 6. 21 C.O. CAFFREY: That is my understanding from the 22 Exhibit -- 23 MR. MADDOW: I will raise the issue again at the 24 conclusion of this phase when we deal with the other issues. 25 C.O. CAFFREY: That would be helpful, Mr. Maddow, 2662 01 although I don't think Ms. Whitney will let us forget. 02 Thank you, sir. 03 Mr. Minasian, good morning, sir. 04 MR. MINASIAN: I will need Mr. Lampe, Mr. Russell, Mr. 05 Sandino and Mr. Etheridge. 06 ---oOo--- 07 CROSS-EXAMINATION OF EAST BAY MUNICIPAL UTILITY DISTRICT 08 BY SOLANO IRRIGATION DISTRICT 09 BY MR. MINASIAN 10 MR. MINASIAN: Mr. Russell, are you the gentleman on 11 behalf of the Department of Water Resources that is in 12 charge of constructing these backstops? 13 MR. RUSSELL: In a word, no. It is a team effort. 14 MR. MINASIAN: You're one member of the team? 15 MR. RUSSELL: That's correct. 16 MR. MINASIAN: Are you able to tell us about the 17 philosophy and the steps that have gone in to creating these 18 various types of backstops? 19 MR. RUSSELL: Partially, yes. 20 MR. MINASIAN: There is no signed document that would 21 create an agreement regarding the form of the backstop on 22 the East Bay MUD, but there is your testimony which has 23 tried to outline for us what your goals, including terms in 24 that agreement, are; is there not? 25 C.O. CAFFREY: Excuse me, MR. Minasian. Maybe I am 2663 01 the only one in the room that is having a problem with 02 this. If you're referring to what is on the board, can we 03 identify that? 04 MR. MINASIAN: Yes, I will. If I could do the 05 preparatory foundational material first. 06 C.O. CAFFREY: That is what I said; maybe I am the only 07 one in the room that isn't with you. 08 Go ahead, please. 09 MR. MINASIAN: Would you like me to repeat the 10 question, Mr. Russell? 11 MR. RUSSELL: Yes, please. 12 MR. MINASIAN: Was one of the purposes of your 13 testimony that was submitted in Phase IV to outline for us 14 the terms that you hoped to include in a legally binding 15 agreement between DWR and East Bay MUD in regard to the 16 backstop? 17 MR. RUSSELL: The intent of the testimony was to 18 provide some information to the Board for their 19 consideration as they considered the East Bay Municipal 20 Utilities District's MOU. 21 MR. MINASIAN: Is it the plan of the Department to 22 attempt to negotiate a signed written document between DWR 23 and East Bay MUD that would include the principles that you 24 outlined to us in your testimony? 25 MR. RUSSELL: It is at this time. 2664 01 MR. MINASIAN: On the screen do me have a portion of 02 your testimony, which I believe is DWR Exhibit 32? 03 MR. RUSSELL: It appears to be the portion on Page 4. 04 MR. MINASIAN: Does Page 4, Exhibit 32, contain a 05 sentence: 06 The settlement satisfies East Bay MUD's 07 obligation to contribute to the Delta water 08 quality objectives, based upon a pro rata 09 sharing of responsibility in accordance with 10 the percent of impact on Delta inflow. 11 (Reading.) 12 MR. RUSSELL: Presuming that that is the exact copy of 13 my testimony, and it appears to be, then the answer is yes. 14 MR. MINASIAN: Could you tell us mechanically how the 15 Department anticipates that the Board would include an 16 Alternative 5 responsibility but that the Department of 17 Water Resources would pick up the responsibility? 18 MR. RUSSELL: Yes, I can. Let me start with the 19 concept that under the present conditions we have the 20 coordinated operations agreement between the Department of 21 Water Resources and the U.S. Bureau of Reclamation. And in 22 that agreement, to the best of my knowledge, it is specified 23 as to what responsibility each agency will have in meeting 24 Delta protections. And to the extent that the Department 25 would pick up its share under that arrangement, we would 2665 01 identify how much water was needed on a specific period, 02 hydrologic period basis, and from that there would be an 03 allocation of responsibility to the projects of which they 04 would, if necessary, make releases from storage or cut back 05 on pumping to ensure that the Delta protections were met. 06 MR. MINASIAN: Isn't the sentence underlined in your 07 testimony designed to encourage the Board to, in fact, set 08 an amount of water in excess of what East Bay MUD has 09 calculated as its JPA contribution, and that amount of water 10 would be the share of the watershed of the Mokelumne which 11 the DWR would meet? 12 MR. RUSSELL: We need to expand on that a little bit. 13 The intent of what has gone on before it in the model 14 studies is only to give an idea of what might happen in the 15 future. What I would expect in the future is that it would 16 be situation specific, whatever hydrology was occurring in 17 California would be handled in stride with the agreements. 18 So it is impossible to prespecify a particular amount of 19 water absent the knowledge of what the hydrology is. 20 MR. MINASIAN: How would the Board go about crafting an 21 order that applied to East Bay MUD that was specific enough 22 that the Department could be required to comply with it on 23 behalf of East Bay MUD? 24 MR. RUSSELL: I don't know. 25 MR. MINASIAN: The backstop that you have tried to 2666 01 prepare and present is motivated by a desire on the part of 02 DWR and the Board to see settlements, is it not? 03 MR. RUSSELL: I can speak for DWR. That is correct. 04 MR. MINASIAN: The reference up here to a pro rata 05 sharing of responsibilities still being ordered by the 06 Board, but DWR making up that water is a type of 07 advertisement on the backstop, isn't it? 08 MR. RUSSELL: I didn't understand your question. Would 09 you say it again, please. 10 MR. MINASIAN: Is the positional of DWR that it would 11 like to encourage the Board to adopt Alternatives 3, 4 or 5 12 which basically put a bigger responsibility on certain 13 tributaries, thus lessening the responsibility to DWR as an 14 appropriator of the State Water Project? 15 MR. RUSSELL: At this point in the hearings we haven't 16 settled on a particular flow alternative that we would 17 recommend to the Board. 18 MR. MINASIAN: The second sentence on Page 4 that is 19 underlined says: 20 The Department agrees to meet its share have 21 of responsibility for providing any 22 additional water as may be directed by the 23 Board to be reasonable and appropriate. 24 (Reading.) 25 Does it not? 2667 01 MR. RUSSELL: Yes, it does. 02 MR. MINASIAN: You refer in the last sentence which I 03 neglected to underline, to the agency's theoretical 04 obligation. Wouldn't the Board have to determine that 05 obligation in a specific quantitative cfs or acre-foot basis 06 for DWR to know how much it should provide? 07 MR. RUSSELL: No. 08 MR. MINASIAN: Is DWR's -- does DWR have any facilities 09 to divert water in the Mokelumne from the State Water 10 Project? 11 MR. RUSSELL: No. 12 MR. MINASIAN: So, is it the plan that DWR would meet 13 the requirements by basically releasing water down the 14 Feather of the Sacramento into the Delta? 15 MR. RUSSELL: Yes, or cut back on export pumping. 16 MR. MINASIAN: So, the mechanical way that the Board 17 would craft an order would be to specify how much water had 18 to be released down the Sacramento and how much cut back in 19 order to meet East Bay MUD's requirement, would it not? 20 MR. RUSSELL: Not necessarily. It could specify 21 salinity objectives to be achieved and leave it to the 22 Department and the Bureau of Reclamation and the others to 23 operate their system to meet those objectives. 24 MR. MINASIAN: Very much like 1485 and the procedures 25 that exist in the extension? 2668 01 MR. RUSSELL: That's correct. 02 MR. MINASIAN: Thank you. 03 The amounts of water that are to be provided under this 04 backstop, do you have an estimate of the amounts of water 05 that would come out of the State Water Project to meet this 06 backstop if DWR had to provide 100 percent of the water? 07 MR. RUSSELL: No. 08 MR. MINASIAN: Mr. Lampe, do you recognize this figure 09 as Figure 5 from your testimony? 10 MR. LAMPE: I don't believe that is my testimony. 11 That is Mr. Skinner's testimony. 12 MR. MINASIAN: I apologize. 13 C.O. CAFFREY: Off the record for a moment. 14 (Discussion held off the record.) 15 MR. LAMPE: It is -- I used it also in my testimony, 16 Page 26. 17 MR. MINASIAN: If I can get my heart under arrest 18 there. 19 MR. LAMPE: I apologize. Is one way of attempting -- 20 C.O. CAFFREY: We are back on the record. Excuse me, I 21 didn't officially say that. We are back on the record. 22 MR. MINASIAN: This is Figure 5 on page? 23 MR. LAMPE: 46. 24 MR. MINASIAN: Thank you. 25 Of your testimony. Is this a chart that attempts to 2669 01 compare the effects on total system storage of East Bay MUD 02 of various alternatives? 03 MR. LAMPE: That's correct. 04 MR. MINASIAN: The lower line is what we call share the 05 pain or Alternative 5; is it not? 06 MR. LAMPE: That is correct. 07 MR. MINASIAN: And the dark solid black line is 08 basically the JSA alternative; is it not? 09 MR. LAMPE: That is correct. 10 MR. MINASIAN: Total system storage means not only 11 Camanche, it means what you have in East Bay Hills, as well? 12 MR. LAMPE: As well as Pardee. 13 MR. MINASIAN: This particular graph takes a portion of 14 a dry period, 1988 through 1992, and basically tracks the 15 difference in total system storage, does it not? 16 MR. LAMPE: That's correct. 17 MR. MINASIAN: Am I right that between -- I have picked 18 1989 and late 1991. The gaps between those two lines are 19 about 200,000 acre-feet more storage if the JSA is chosen 20 rather than Alternative 5? 21 MR. LAMPE: Two to perhaps 250,000, yes. 22 MR. MINASIAN: And is total system storage through a 23 drought period a good way to estimate the differences or 24 benefits to you if one alternative is chosen over another? 25 MR. LAMPE: This reflects the impacts on the in-stream 2670 01 resource to the Mokelumne as well as potential impacts to 02 the District customer as well, yes. 03 MR. MINASIAN: The backstop that DWR is supposedly 04 offering, you would basically create an extra 200,000 05 acre-feet of reliable system storage during a dry period, 06 would it not? 07 MR. LAMPE: I suppose what I can say is that the 08 difference, as you pointed out, between Alternative 5 and 09 the JSA is that 200, 250,000. So, whatever the decision of 10 the Board, that is the relative difference under the 11 conditions modeled for this particular hydrology. 12 MR. MINASIAN: So, effectively, the offer on the table 13 from the DWR is that they will twist the Bureau's arm and 14 get you an agreement and you will end up 200,000 acre-feet 15 better off in terms of reliable storage through a dry period? 16 MR. SANDINO: I will object to that question. That 17 wasn't our testimony, that we would twist the Bureau's arm. 18 MR. MINASIAN: I am sorry. I withdraw that. That is 19 argumentative, and we know they don't waive sovereign 20 immunity. 21 C.O. CAFFREY: Thank you for helping with my ruling. 22 MR. MINASIAN: So the benefit is basically 200,000 23 acre-feet of reliable storage coming through the DWR 24 backstop arrangement? 25 MR. LAMPE: I think, as DWR has indicated, they talked 2671 01 about a fair-share approach. I am not sure how that 02 translates to the question that you posed. Again, what we 03 offer in the JSA is what we believe to the fair share from 04 the Mokelumne. 05 MR. MINASIAN: That is your -- your belief is that it 06 isn't necessary to simply take a percentage of the total 07 inflow in that particular tributary and equate that with a 08 contribution to Bay-Delta water quality standards? 09 MR. LAMPE: Correct. 10 MR. MINASIAN: Do you have an opinion in regard to 11 other tributaries, like the Feather, the Stanislaus or the 12 American River? 13 MR. LAMPE: I don't. I know that we have spent 14 considerable time and energy and financial resource 15 evaluating the opportunities, the potential for problems 16 unique to the Mokelumne basin. And it is on that basis that 17 we crafted this specific settlement agreement that we now 18 have before the Board. 19 MR. MINASIAN: Your settlement could be approved by the 20 Board without the backstop, couldn't it? 21 MR. LAMPE: In our judgment, it could. 22 MR. MINASIAN: But for various reasons it is felt that 23 it is necessary to have a backstop arrangement. Could you 24 explain to us why that is necessary? 25 MR. LAMPE: The District has never felt it is necessary 2672 01 to have a backstop. The backstop that we have discussed 02 with the Department of Water Resources would certainly, I 03 believe, add additional value to the settlement offer that 04 we bring to the Board. It would provide the Board further 05 assurance and guarantee that they could consider our JSA 06 flows. But the Board could make a determination to accept 07 our JSA settlement without a specific backstop. 08 MR. MINASIAN: So, when I ask questions about the 09 backstop, you understand I am not necessarily saying your 10 settlement is a bad one? 11 MR. LAMPE: I do. 12 MR. MINASIAN: When we talk about the backstop 13 mechanism and 200,000 plus or minus storage benefit from it, 14 you are not proposing in the contract that is being drafted 15 with DWR to pay DWR anything for their proportion of that 16 benefit, are you? 17 MR. LAMPE: We are not. The evaluation that has been 18 performed is that there is a significant contribution 19 already from the Joint Settlement Agreement. 20 MR. MINASIAN: You are not proposing to become a state 21 water contractor? 22 MR. LAMPE: We are not. 23 MR. MINASIAN: Yet there is 200,000 plus or minus 24 acre-feet through a dry period that has to come out of 25 somebody's entitlement, storage and facility, doesn't it? 2673 01 MR. LAMPE: Under the particular alternative that you 02 are referring to. I presume you are referring to 03 Alternative 5. Under that alternative, yes. Under other 04 alternatives, significantly less. 05 MR. MINASIAN: Has the DWR explained to you how they 06 are going to acquire that water from the existing State 07 Water Project contractors? 08 MR. LAMPE: We have not had any specific discussions to 09 that regard. 10 MR. MINASIAN: Mr. Russell, is there a plan as to which 11 State Water Project contractor will give up, yield or supply 12 in order to make this backstop work? 13 MR. RUSSELL: Not that I am aware of. 14 MR. MINASIAN: There is a thing called the Delta water 15 rate, is there not? 16 MR. RUSSELL: Yes, there is. 17 MR. MINASIAN: That is a monetary amount paid by all 18 State Water Project contractors for the debt service O&M 19 cost relating to supply availability to the Delta? 20 MR. RUSSELL: At this point you are outside my area of 21 expertise. I don't know the details of that. 22 MR. MINASIAN: Let me withdraw the question. 23 There is an amount of money paid by most State Water 24 Project contractors to keep the boat afloat, is there not? 25 MR. RUSSELL: That is my understanding, yes. 2674 01 MR. MINASIAN: Who's going to pay the amount of money 02 necessary to keep this 200,000 acre-foot allocation 03 available to East Bay MUD if the Board accepts the 04 share-the-pain alternative? 05 MR. RUSSELL: Two answers. First, I don't know. And, 06 secondly, this is the Board's Alternative Number 5, and that 07 is watershed specific. And I believe it would have -- you 08 are asking for something that is somewhat hypothetical at 09 this point. I don't know, and I am not quite sure when we 10 would know until such time as the hydrology was occurring in 11 California, and we could make that determination of the 12 water supply available to us. 13 MR. MINASIAN: But there is no question in your mind 14 that there is a cost associated with the backstop? 15 MR. RUSSELL: Again, it depends on the hydrology. 16 MR. MINASIAN: In a dry period there is no question in 17 your mind that the water has to come out of existing 18 facilities, is there? 19 MR. RUSSELL: It is presumed that it would come out of 20 some facility, yes. 21 MR. MINASIAN: And it is presumed that somebody is 22 paying about $30 acre-feet now because they are getting -- 23 MR. RUSSELL: I don't know that. 24 MR. SANDINO: Mr. Chairman, I have been very patient 25 with this line of questioning, but this is well beyond 2675 01 Mr. Russell's testimony. I know you allow some discretion 02 to exceed it, but I think this is way too far. 03 C.O. CAFFREY: I think as long as the witness is not 04 intimidated by the questioning and is comfortable saying he 05 doesn't know, that that is satisfactory. We will see where 06 -- but your objection or your concern is in the record, Mr. 07 Sandino, and we will see how much farther this goes. 08 MR. MINASIAN: Mr. Russell, there is no plan at this 09 point to include within the settlement document to be signed 10 by the DWR and East Bay MUD and presented to this Board 11 forming the backstop to basically allocate the costs 12 associated with this 200,000 plus or minus storage benefit? 13 MR. RUSSELL: Not that I am aware of. 14 MR. MINASIAN: You definitely are not going to make 15 East Bay MUD a state contractor? 16 MR. RUSSELL: That is outside my area of expertise. 17 MR. MINASIAN: Thank you. 18 There is some differences between the backstops that 19 DWR is presenting, and I want you to focus for a moment upon 20 the backstop that basically is described in the North Delta 21 Agreement, the one that was negotiated and has not been 22 presented regarding Yuba County Water Agency, the San 23 Joaquin Agreement and this backstop. 24 MR. SANDINO: Just object to that question. Maybe ask 25 counsel to recharacterize it. Our testimony, our written 2676 01 testimony, isn't a backstop provision for North Delta Water 02 Agency. It is a different type of contract. That testimony 03 is coming later. Maybe if you can be more specific. 04 C.O. CAFFREY: I am not sure that -- maybe I didn't 05 hear it. I am not sure I even heard it as a question. It 06 sounded like it was some preliminary information just before 07 a question. 08 MR. MINASIAN: It was, and it was not artfully done. 09 C.O. CAFFREY: I didn't say that, Mr. Minasian. 10 MR. MINASIAN: Let me try to break it down. 11 The term of the backstop that you hope to eventually 12 present regarding East Bay MUD will be an agreement that 13 will exist until 2031. 14 Do you not Mr. Russell? 15 MR. RUSSELL: The MOU has identified that date, but we 16 have not signed that MOU. 17 MR. MINASIAN: The agreement that you hope to present 18 to East Bay MUD will not include a reopener which the DWR 19 can escape part of its obligation if there is a triennial 20 review and a change in standards? Do you understand the 21 question? 22 Focus on East Bay MUD, then focus on Yuba County, and 23 is there a difference in regard to whether there is a 24 reopener? 25 MR. RUSSELL: One moment please. 2677 01 I don't know the answer to that question. 02 MR. MINASIAN: The North Delta Water Agency settlement 03 backstop is forever, is it not? 04 MR. RUSSELL: It's an agreement we have with the North 05 Delta Water Agency, yes. 06 MR. MINASIAN: I am sorry, I used the word "backstop" 07 again, Mr. Sandino. Is there a better phrase for that 08 device? 09 MR. SANDINO: I don't know if there is a better phrase, 10 but backstop isn't appropriate. The testimony will come 11 later about it, as to what we have in terms of a stipulation 12 with them. 13 Maybe if you use the word "stipulation." 14 MR. MINASIAN: In regard to the San Joaquin Agreement, 15 the promises of the DWR and the stipulation basically go 16 away if certain events occur, don't they? 17 MR. RUSSELL: I don't know what events you are 18 referring to. 19 MR. MINASIAN: That is the San Joaquin Agreement isn't 20 as good as the agreement being offered to East Bay MUD, is 21 it, in terms of security that DWR will make water available? 22 MR. RUSSELL: I can't answer that question. 23 MR. MINASIAN: In large respect, the word "backstop" is 24 not proper, is it? You are offering insurance, aren't you? 25 MR. RUSSELL: I can't give you a good answer on that 2678 01 one, either, sir. 02 MR. MINASIAN: The policies have different terms, don't 03 they? 04 MR. RUSSELL: Don't know. 05 MR. MINASIAN: I would like to mark -- I'll back off on 06 that. 07 I would like to mark a copy of the permit for diversion 08 and use of water Permit 16478, which is DWR's application 09 5630 for the State Water Project. I am only going to ask 10 you about three terms, 21, 22 and 23. 11 MS. LEIDIGH: Mr. Minasian, could you tell us what 12 exhibit number this has? 13 MR. MINASIAN: I think it will be my exhibit, Joint 14 District Western Canal and the other clients, Joint Exhibit 15 Number, I believe, Number 12. I will look at my index and 16 give it to you, but if we can mark it as 12 for now. 17 Mr. Russell, bearing in mind that you're not an 18 attorney, I am not going to ask you questions of legal 19 interpretation. But in providing backstop or insurance, one 20 alternative available to the Department was to look at the 21 terms under which the Department got water rights from the 22 State Water Project, was it not? 23 MR. SANDINO: I will object to that question again. I 24 think, again, this is beyond the qualifications of this 25 witness. He is asking for legal conclusions about a water 2679 01 rights permit issued to the Department that we didn't 02 realize would be the subject of his questioning. 03 C.O. CAFFREY: I have to apologize to both attorneys. 04 I was consulting up here for a moment and I didn't hear the 05 question. You can either repeat or we can read it back if 06 you prefer, Mr. Minasian. 07 MR. MINASIAN: Mr. Chairman, I would like to suggest a 08 way of doing this that will keep Mr. Sandino's vocal cords 09 in good shape. One, that he have a continuing 10 objection, and I will try to limit my questions to factual 11 questions, avoiding legal conclusion. I think his basic 12 objection, if I may, this is beyond the witness' direct 13 testimony. 14 MR. SANDINO: It is beyond his direct testimony. Also 15 it is asking for legal conclusions that I don't believe the 16 witness is qualified to answer. And, also, I think it 17 constitutes surprise testimony. It doesn't appear that this 18 evidence was submitted before, and certainly not related to 19 our direct testimony on this. 20 C.O. CAFFREY: Thank you, Mr. Sandino. 21 Ms. Leidigh, did you have a comment that you wanted to 22 make? I see that you are drawing the mike forward. 23 Please. 24 MS. LEIDIGH: Yes. I just wanted to point out for 25 clarification that the Administrative Procedures Act, 2680 01 Section 11513, does allow cross-examination of opposing 02 witnesses. I will read it: 03 On any matter relevant to the issues, even 04 though the matter was not covered in the 05 direct examination. (Reading.) 06 So, it is allowable if it is relevant. So, if the 07 witness can answer the question and it is relevant, then it 08 should be allowed. 09 MR. SANDINO: I won't object based on relevancy 10 immediately. But then I guess we can hear how the questions 11 go, but that might be another basis for an objection. 12 C.O. CAFFREY: Let me say that this Board has great 13 respect for Mr. Sandino and his tolerance. But, again, as I 14 said a number of times, the Board has wide discretion in 15 these matters. And one of the things that we have been 16 called upon very often in this proceeding is to reference 17 the fact that sometimes the Board Members are just flat out 18 interested in hearing a line of questioning, regardless of 19 what the attorneys may be concerned about. 20 I believe we have reached that point just now, and I 21 have had an expression of interest from all the Board 22 Members up here that they would like to hear a continuation 23 of this line of questioning. 24 So, at the same time we want to very much respect Mr. 25 Sandino's concerns for his witness, I would ask you, Mr. 2681 01 Minasian, to try to gear your questioning along the lines 02 that you said, and the Board will recognize the fact that in 03 the record the fact that Mr. Sandino had expressed some 04 strong concerns. 05 Please proceed. 06 MR. MINASIAN: Bearing in mind, Mr. Russell, that your 07 function in regard to this process of creating insurance or 08 backstops is part of a team effort, does DWR intend to -- 09 let me rephrase it. 10 Have you had a chance to read Condition Number 23 and 11 the last underlined portion which talks about uniformity in 12 contracts being offered it? 13 MR. RUSSELL: I haven't read it yet, but if you will 14 give me a minute, I will read it now. 15 MR. MINASIAN: Would you do that for me. 16 MR. RUSSELL: I have read it. 17 MR. MINASIAN: I am not asking for a legal conclusion. 18 I am just asking, are you going to offer these same uniform 19 contract terms that are going to be offered to East Bay MUD 20 and presented to the Board -- 21 C.O. CAFFREY: Excuse me, Mr. Minasian. I want to also 22 make clear to the witness that my ruling, for lack of a 23 better term, did not mean that I have turned you into an 24 expert. I mean, I want you to understand, Mr. Russell, that 25 it is perfectly all right for you to say, "I don't know. 2682 01 That is not my level of expertise." If you are not 02 comfortable with the question, you don't feel that you are 03 capable of answering it, I have certainly not taken that 04 away from you, nor could I. 05 Please proceed. 06 MR. RUSSELL: Thank you. 07 MR. MINASIAN: Looking at the language of Paragraph 23 08 and refreshing your recollection about the policy of the 09 Board -- of the DWR in using backstop or insurance policies, 10 does the Department intend to offer the same sort of terms 11 that it is offering to East Bay MUD to all other users who 12 might apply under Paragraph 23 under the uniformity 13 document? 14 MR. RUSSELL: I think it is situation specific, and I 15 don't know the answer to your question. 16 MR. MINASIAN: Can you give us the criteria under which 17 the Department would decide who gets free water and 18 increased storage in dry years from the State Water Project 19 as a way of meeting a watershed-by-watershed contribution? 20 MR. RUSSELL: Would you rephrase the question. 21 MR. MINASIAN: Is there a criteria? Can you think of 22 the factors the Department would use, even if you don't know 23 what the policy is? 24 MR. RUSSELL: I can't give you an answer at this time. 25 MR. MINASIAN: Look at Paragraph 22, and, again, I am 2683 01 not going to ask you a legal conclusion. Just refresh your 02 recollection as to what is in that paragraph. 03 MR. RUSSELL: Okay. Read it. 04 MR. MINASIAN: Mokelumne is south of the American 05 River, isn't it? 06 MR. RUSSELL: That's correct. 07 MR. MINASIAN: It is in the Central Valley basin? 08 MR. RUSSELL: That is correct. 09 MR. MINASIAN: Your backstop agreement or you insurance 10 policy could have been simply to refer to Paragraphs 22, and 11 DWR say, "We are obligated under Paragraph 22 to meet 12 whatever requirements of the Mokelumne are allocable on the 13 basis of this term," could it not? 14 MR. RUSSELL: In pursuing the settlement agreement with 15 the Mokelumne, East Bay MUD, it was my understanding, and, 16 again, a settlement where people sat down and talked about 17 what they thought was appropriate. And I don't know that 18 there was a specific reference to this paragraph and this 19 water right application. 20 MR. MINASIAN: Without telling me anything that your 21 attorneys might have advised you, why isn't Paragraph 22 the 22 basis for a stipulation or settlement agreement? 23 MR. RUSSELL: I don't know. 24 MR. MINASIAN: Paragraph 21, would you read that for a 25 moment. 2684 01 MR. RUSSELL: I read it. 02 MR. MINASIAN: Without asking you for a legal 03 interpretation or understanding of that document, do you see 04 that it basically refers to certain priorities which the 05 State Water Project either has or doesn't have? 06 MR. RUSSELL: Yes. 07 MR. MINASIAN: Why doesn't the settlement document with 08 East Bay MUD and the DWR refer to priorities, if you know? 09 MR. RUSSELL: I don't know. 10 MR. MINASIAN: The backstop or insurance policy that is 11 being offered here is really being offered to the Board, not 12 to East Bay MUD; isn't it, Mr. Russell? 13 MR. RUSSELL: It was provided to the Board for their 14 consideration; that is correct. 15 MR. MINASIAN: What I am asking, who is going to be 16 able to enforce it in a dry year? 17 MR. RUSSELL: The Board. 18 MR. MINASIAN: But they're not going to be a signator 19 to the agreement, are they? 20 MR. RUSSELL: This is getting outside my area. But it 21 is my understanding that the Board sets forth terms and 22 conditions in water rights for the appropriative water right 23 holders in California, and through that process they can set 24 forth the terms that must be complied with. 25 MR. MINASIAN: So, is it your view, without asking for 2685 01 your legal opinion, that the Board would just add a term 02 down here in the bottom of its water rights and say there is 03 an East Bay MUD agreement and DWR would comply with that? 04 MR. SANDINO: I appreciate Mr. Minasian saying he is 05 not asking for a legal opinion, but it sure sounded like it 06 to me. This is well beyond the scope of Mr. Russell's 07 qualifications, asking what the Board would do, what terms 08 would be inserted. 09 C.O. CAFFREY: I think the point has been made that 10 this is perhaps getting, even though we're tolerant, this is 11 getting fairly legalistic and asking an engineering witness 12 what paragraphs would be inserted in permits and that kind 13 of thing. 14 MR. MINASIAN: One final question. Mechanically, whose 15 -- where is the change going to be made that will reflect 16 that? Is it in East Bay MUD water rights or the DWR water 17 rights that will reflect the agreement? 18 MR. RUSSELL: That is up to the Board. 19 MR. MINASIAN: Nothing further, your Honor. 20 C.O. CAFFREY: Thank you, Mr. Minasian. 21 The hour of almost 10 minutes to 12 having arrived, why 22 don't we break now, then, for lunch and come back at 1:00. 23 Thank you. 24 (Luncheon break taken.) 25 ---oOo--- 2686 01 AFTERNOON SESSION 02 ---oOo--- 03 C.O. CAFFREY: Good afternoon. We are back on the 04 record. We are continuing with Phase IV. 05 I have a request from Mr. O'Brien to address the 06 Board. I believe he is going to ask us for a slight 07 departure from our proceedings. 08 Mr. O'Brien. 09 MR. O'BRIEN. Thank you, Mr. Caffrey. 10 I am representing the North Delta Water Agency and four 11 other districts that will be submitting testimony later in 12 Phase IV. I have one witness, mr. Henry Kuechler, who has a 13 conflict tomorrow and the next day, and will not be able to 14 come back and present his testimony. I believe his 15 testimony will take me all of about two minutes to put on, 16 in terms of direct. 17 If there isn't a lot of anticipated cross-examination, 18 I would request that we be allowed to put that on now. I 19 don't think this will interrupt the East Bay MUD 20 presentation for more than a few minutes. I would 21 appreciate your accommodating his schedule. 22 C.O. CAFFREY: Let me ask a question of the other 23 parties, MR. O'Brien. 24 Can you give me the name of the witness again. 25 MR. O'BRIEN: Henry Kuechler. Mr. Kuechler is a Board 2687 01 Member of RD 2060. We presented direct testimony of his. 02 It's one page long, and it is very short and sweet. And he 03 would be the witness. 04 C.O. CAFFREY: Let me ask this: First of all, is 05 there any objection from any of the parties for taking this 06 witness out of turn? 07 Now that nobody has objected, let me ask another 08 question which is quite different. Does anybody have any 09 plans, based on what you know now about the evidentiary 10 exhibit, I know there can be things that come out in the 11 actual testimony, does anybody have any plans to 12 cross-examine this witness? 13 All right. Based on that, then, it is our inclination 14 to help out Mr. O'Brien and his witness. 15 Ms. Goldsmith. 16 MS. GOLDSMITH: Are you willing to help out Ms. 17 Goldsmith and her witness? 18 C.O. CAFFREY: What is Ms. Goldsmith's problem? 19 MS. GOLDSMITH: Ms. Goldsmith's problem is similar to 20 Mr. O'Brien's. I represent the City of West Sacramento. 21 And I have conflicts and so does my witness for tomorrow and 22 the next day. It should take less than five minutes, and I 23 don't know that there is any cross-examination anticipated. 24 We were going to do a joint presentation of the North 25 Delta Water Agency, but we ran into scheduling issues. 2688 01 C.O. CAFFREY: Ms. Goldsmith, could you give us the 02 names of your two witnesses? 03 MS. GOLDSMITH: One witness, James Yost. 04 C.O. CAFFREY: Mr. Yost, he is here now? 05 MS. GOLDSMITH: Yes, he is. 06 C.O. CAFFREY: Is there any objection -- is it your 07 proposal to present both of these witnesses as a panel, 08 then? I don't even know if it is related. 09 MR. O'BRIEN: It is related, Mr. Caffrey, and if it is 10 permissible to the Chair, that is what we would do. 11 C.O. CAFFREY: Is there any objection from the other 12 parties to including Mr. Yost's direct testimony in this 13 instance? 14 MR. BRANDT: I may have some cross-examination of Mr. 15 Yost. 16 C.O. CAFFREY: You have some cross-examination that may 17 take some time? 18 MR. BRANDT: Not a whole lot. It's not going to be a 19 couple of minutes. 20 C.O. CAFFREY: That means it may take an hour. 21 MR. BRANDT: Or, hopefully, less. 22 C.O. CAFFREY: When other parties hear your 23 cross-examination, that may inspire them. 24 MS. GOLDSMITH: Not only do I not want to try your 25 patience, but I do not want to try the patience and the 2689 01 cooperation of East Bay MUD in disrupting their case too 02 greatly. Perhaps at the end of the day there might be some 03 time. 04 C.O. CAFFREY: Let's try this too, Ms. Goldsmith. I 05 understand you are trying to help your witness, and it 06 sounds to me from what Mr. O'Brien has told me, his witness 07 is going to be gone, out of the country, for most of the 08 month of September. 09 I am assuming that your witness would be -- we are 10 coming back here after this week. We are going to have 11 about a three-week hiatus and then we are going to be back 12 in September. At the rate we are going now, we may not even 13 get to your joint presentation. So would your witnesses be 14 available in mid September? 15 MS. GOLDSMITH: I know Mr. Yost just got back from his 16 vacation. So I suspect he will be around. 17 C.O. CAFFREY: Are we going to deny Mr. Yost any 18 further vacation? Let's just go with Mr. O'Brien's witness 19 right now and then try to accommodate you the first chance 20 we get, as long as Mr. Yost is available. If we can't, 21 then, at the rate we are going now, anyway, I don't think we 22 are going to finish Phase IV this week. I may be wrong. 23 Things have a way of speeding up when you least expect it. 24 We will figure out a way to accommodate you. 25 MS. GOLDSMITH: Thank you. 2690 01 C.O. CAFFREY: Thank you, Ms. Goldsmith. 02 Mr. O'Brien, will you please introduce your witness 03 into the record, and perhaps spelling his name. 04 ---oOo--- 05 DIRECT EXAMINATION OF NORTH DELTA WATER AGENCY, ET AL. 06 BY MR. O'BRIEN 07 MR. O'BRIEN: We are calling Mr. Henry Kuechler, 08 K-u-e-c-h-l-e-r. And, again, I am appearing on behalf of 09 North Delta Water Agency, Reclamation District 999, Rec 10 District 2060, Rec District 2068 and Maine Prairie Water 11 District. 12 C.O. CAFFREY: Before you proceed, may I ask: Mr. 13 Kuechler, were you here for the taking of the oath and the 14 affirmation? 15 MR. KUECHLER: No, sir, I was not. 16 (Oath Administered by C.O. Caffrey.) 17 MR. O'BRIEN: Could you state your full name for the 18 record, Mr. Kuechler. 19 MR. KUECHLER: Henry N. Kuechler. 20 MR. O'BRIEN: I place before you a document marked NDWA 21 Exhibit 12. Is that a true and correct copy of the 22 testimony submitted by you in this proceeding? 23 MR. KUECHLER: Yes, sir. 24 MR. O'BRIEN: Can you just very briefly for the Board 25 summarize your written testimony. 2691 01 MR. KUECHLER: I am presently the President of the 02 Board of Reclamation District 2060, as depicted in the map 03 submitted as the North Delta Water Agency Exhibit Number 04 3, and District 2060 is located entirely within the 05 boundaries of the North Delta Water Agency. 06 In my testimony I list the appropriative water rights 07 application permit and license number for District 2060. 08 The landowners within Reclamation District 2060 since 1982 09 have paid assessments to the North Delta Water Agency which 10 have in turn been utilized by the North Delta Water Agency 11 to make payments to the Department of Water Resources 12 pursuant to the 1910 contract between the North Delta Water 13 Agency and the Department of Water Resources. 14 Reclamation District 2060 concurs with the position set 15 forth in the Memorandum of Understanding between the North 16 Delta Water Agency and the Department of Water Resources 17 dated May 26th, 1998. 18 North Delta Water Agency Exhibit 10, based on the terms 19 and conditions of the 1981 contract and the joint 20 interpretation, therefore, set forth in the MOU, it is the 21 position of RD 2060 that DWR is obligated to utilize State 22 Water Project water supplies to meet any Bay-Delta water 23 quality obligations that may otherwise be attributable to 24 water users within the North Delta Water Agency, including 25 RD 2060. 2692 01 MR. O'BRIEN: Thank you. 02 Mr. Kuechler is now available for cross-examination. 03 C.O. CAFFREY: Let me ask again of the parties. Do any 04 of the parties wish to cross-examine Mr. Kuechler? 05 None responding, let me ask the staff, do they wish to 06 cross-examine Mr. Kuechler? 07 MR. HOWARD: No questions. 08 C.O. CAFFREY: Thank you, Mr. Howard. 09 Any Board Members or Mr. Pettit wish to question the 10 witness? 11 All right. Thank you, gentlemen. I presume you have 12 exhibits that you will identify and offer when we get to the 13 rest of your case. Is that the -- 14 I guess that is the way we ought to proceed, Ms. 15 Leidigh, rather than to try and take it up now? 16 MS. LEIDIGH: Probably so. Just have him offer his 17 exhibits when he finishes his case in chief and has been 18 cross-examined. 19 C.O. CAFFREY: That is how we will proceed. 20 Thank you, Mr. O'Brien, Mr. Kuechler. Thank you very 21 much. I hope you have a great vacation. 22 MR. KUECHLER: Thank you for your indulgence. 23 MR. O'BRIEN: Thank you, Mr. Chairman, and also thanks 24 to Mr. Etheridge. 25 C.O. CAFFREY: Thanks for the indulgence of all the 2693 01 parties in that matter. The Board does appreciate it. We 02 try to accommodate where we can when the requests are 03 reasonable. 04 That, then, takes us back to our cross-examination of 05 the panel. We had just completed Mr. Minasian's 06 questioning, and we are now ready for Mr. Johnston. 07 Good afternoon, sir, welcome. 08 ---oOo--- 09 CROSS-EXAMINATION OF EAST BAY MUNICIPAL UTILITY DISTRICT 10 BY MODESTO IRRIGATION DISTRICT 11 BY MR. JOHNSTON 12 MR. JOHNSTON: Good afternoon, Mr. Chairman, thank you. 13 My name is William Johnston. I represent Modesto Irrigation 14 District. 15 My questions are for Mr. Vogel and possibly Dr. 16 Hanson. 17 C.O. CAFFREY: We probably ought to play a little 18 music while we change chairs. 19 MR. JOHNSTON: Mr. Vogel, East Bay MUD Exhibit Number 3 20 is your written testimony; is that correct? 21 MR. VOGEL: That's correct. 22 MR. JOHNSTON: It appears from your statement of 23 qualifications, East Bay MUD Exhibit 1G, that you have 24 worked in developing salmon management recovery plans in the 25 Central Valley of California; is that true? 2694 01 MR. VOGEL: Yes. 02 MR. JOHNSTON: Have you worked on salmon smolt 03 production and survival in Central Valley streams? 04 MR. VOGEL: Yes, I have. 05 MR. JOHNSTON: Streams other than the Mokelumne? 06 MR. VOGEL: Yes, I have. 07 MR. JOHNSTON: Looking at Figure 1, which is on Page 1 08 of East Bay MUD Exhibit 3, it is a bar graph that shows 09 during 1995, 1996 and 1997 that there has been an increase 10 in salmon escapement over the previous years. Actually, 11 there is a lot of fluctuation, but over years during the 12 drought; is that correct? 13 MR. VOGEL: Yes, that is correct. 14 MR. JOHNSTON: And does Figure 1 show that in 1997 15 there was an escapement of over 10,000 salmon on the Lower 16 Mokelumne? 17 MR. VOGEL: Yes, it does. 18 MR. JOHNSTON: Looking at Figure 2, which is on Page 8 19 of East Bay MUD Exhibit 3, there is a comparison of salmon 20 escapement on four Central Valley rivers; is that correct? 21 It is on Page 8. 22 MR. VOGEL: Yes, it does. 23 MR. JOHNSTON: Which rivers are those. 24 MR. VOGEL: The Tuolumne, the Stanislaus, the Merced 25 and the Mokelumne. 2695 01 MR. JOHNSTON: Which rivers show the highest percentage 02 of average salmon run since 1992 which was the end of the 03 recent six-year drought? 04 MR. VOGEL: There would be two rivers, and those are 05 the Merced River and the Mokelumne River. 06 MR. JOHNSTON: To your knowledge, which rivers of those 07 four rivers have fish hatcheries on them? 08 MR. VOGEL: There are only two. Those would the Merced 09 River and the Mokelumne River. 10 MR. JOHNSTON: Which are the two with the highest 11 percentage of salmon returns? 12 MR. VOGEL: Yes, that is correct, in comparison to the 13 historical averages to escapement. 14 MR. JOHNSTON: Looking at Figure 3 on Page 9 of East 15 Bay MUD Exhibit 3, is this a bar graph showing escapement of 16 natural spawning salmon in the Lower Mokelumne? 17 MR. VOGEL: Yes, it is. 18 MR. JOHNSTON: How many natural spawners are shown in 19 1996 and 1997? 20 MR. VOGEL: It would be approximately 3,500 to a little 21 less than 4,000. 22 MR. JOHNSTON: Looking at both Figures 1 and 3 of East 23 Bay MUD Exhibit 3, would you conclude that the natural 24 spawners were less than 40 percent of the total escapement 25 in the Mokelumne? 2696 01 MR. VOGEL: Yes. It would be -- in 1996 it would be a 02 little less than half, and it would be more so in 1997. 03 MR. JOHNSTON: If so, how many of the natural spawners 04 might be hatchery-reared fish? 05 MR. VOGEL: I don't know the answer to that, but would 06 expect some portion of them would be of hatchery origin. 07 MR. JOHNSTON: Can you tell the difference between an 08 untagged hatchery-spawned and reared salmon that spawns in 09 the Mokelumne, or any other river, from a naturally spawned 10 and reared salmon that also spawns? 11 MR. VOGEL: No, I could not. 12 MR. JOHNSTON: In your opinion, can anyone tell that 13 difference? 14 MR. VOGEL: Specifically referring to the Central 15 Valley fall chinook, the answer is no. 16 MR. JOHNSTON: Could anyone tell the difference if 17 they were caught in the ocean? 18 MR. VOGEL: No, they couldn't. 19 MR. JOHNSTON: In your opinion, is a healthy 20 hatchery-spawned and reared salmon inferior to a healthy, 21 naturally produced salmon? 22 MR. VOGEL: Could you ask that question again. 23 MR. JOHNSTON: Yes. In your opinion, is a healthy 24 hatchery-spawned and reared salmon inferior to a healthy, 25 naturally produced salmon? 2697 01 MR. VOGEL: You are referring to Mokelumne fall run 02 chinook salmon? 03 MR. JOHNSTON: Mokelumne and other San Joaquin Basin 04 salmon. 05 MR. VOGEL: It is a relatively complex answer. If the 06 hatchery practices are managed properly in terms of the 07 brood stock selection procedures and so forth, the release 08 practices and so forth, I would say, no, there would not be 09 significant difference. It depends on several caveats. 10 MR. JOHNSTON: Looking again at Figure 2, East Bay MUD 11 Exhibit 3, is that a substantial difference between the 12 increase in percent of historical average run for the 13 Mokelumne and Merced Rivers as compared to the Stanislaus 14 and Tuolumne Rivers? 15 MR. VOGEL: Yes, there is. 16 MR. JOHNSTON: What would you attribute that difference 17 to? 18 MR. VOGEL: I don't have a simple answer for that 19 question, although I would say that, without question, it's 20 partially attributable to the hatchery production on both of 21 those rivers, specifically the Merced and Mokelumne. 22 MR. JOHNSTON: Thank you. 23 Dr. Hanson, you have also had experience with smolt 24 production analysis and studies in the San Joaquin Basin? 25 DR. HANSON: I have. 2698 01 MR. JOHNSTON: Do you have any differences of opinion 02 regarding Mr. Vogel's responses to my questions without 03 asking each question again? 04 DR. HANSON: No. I generally concur with the 05 responses that Mr. Vogel gave, with the one exception that 06 there are occasions, for example, when we are sampling for 07 juvenile chinook salmon during their out-migration period. 08 We have seen evidence of frayed finrays and other evidence 09 that suggest that they may have been of hatchery origin. 10 But we don't have real quantitative information on a 11 comparative basis to look at differences in behavior or 12 survival. 13 We are in the process now, and Mr. Vogel is involved in 14 studies to begin tagging wild chinook salmon, that will give 15 us that kind of information that we currently don't have. 16 MR. JOHNSTON: Thank you very much. That is all the 17 questions I have, Mr. Chairman. 18 C.O. CAFFREY: Thank you very much, Mr. Johnston. 19 Mr. Sorenson. Good afternoon, sir. 20 MR. SORENSON: Thank you, Mr. Chairman. I have some 21 questions of -- I'm sorry, I don't have them. I have to go 22 back to my seat. 23 C.O. CAFFREY: Let's go off the record for a moment. 24 (Discussion held off record.) 25 C.O. CAFFREY: We are back on the record. 2699 01 Mr. Sorenson, let me ask, I don't recall, did you 02 identify yourself into the record as a representative of a 03 party when we called for the representation? 04 MR. SORENSON: Yes, on July 1. 05 C.O. CAFFREY: Thank you, sir. We just found it. 06 ---oOo--- 07 CROSS-EXAMINATION OF EAST BAY MUNICIPAL UTILITY DISTRICT 08 BY NORTH SAN JOAQUIN WATER CONSERVATION DISTRICT 09 BY MR. SORENSON 10 MR. SORENSON: My name is James F. Sorenson. I am here 11 on behalf of North San Joaquin Water Conservation District. 12 C.O. CAFFREY: Thank you, sir. 13 MR. SORENSON: I have some questions, and I'd start 14 with Mr. Myers. On Exhibit 2, Mr. Myers, on Page 18, about 15 the middle of the first full paragraph, the sentence that 16 begins, "Because its entitlement is temporary." It is about 17 the sixth line down. 18 MR. MYERS: Yes, I see that. 19 MR. SORENSON: What do you mean by "temporary," and I 20 should note the rest of that sentence: 21 Because its entitlement is temporary, NSJWCD, 22 being North San Joaquin, has not constructed 23 a permanent storage facility on the Mokelumne 24 River. (Reading.) 25 What do you mean by the term "temporary"? 2700 01 MR. MYERS: It is my understanding that the North San 02 Joaquin Water Conservation District has a water right, a 03 temporary water right permit. 04 MR. SORENSON: Temporary in what sense? 05 MR. MYERS: Its entitlement is contingent upon East Bay 06 MUD's use of water under its entitlement for the Camanche 07 project. 08 MR. SORENSON: Does the term "surplus" enter into this? 09 MR. MYERS: I think you may need to define that for me 10 or elaborate on that question. 11 MR. SORENSON: In the permit that North San Joaquin 12 has, it is basically water available to that district that's 13 surplus to the needs of the East Bay Municipal Utility 14 District. Would you agree with that? 15 MR. MYERS: I would not disagree with that. 16 MR. SORENSON: I guess that's agreement. 17 Then, for Mr. Lampe. On Exhibit 9, Mr. Lampe, on Page 18 31, there is discussion about current water consumption. 19 MR. LAMPE: Yes. 20 MR. SORENSON: I wonder if you could tell me or tell 21 the Board what the effect on the North San Joaquin Water 22 Conservation District would be if the JSA were to be in 23 effect during a drought similar to that which occurred in 24 '87 to '92? 25 MR. LAMPE: In terms of -- I am sorry, Mr. Sorenson, in 2701 01 relation to the section on current water consumption? 02 MR. SORENSON: No. I am asking about what the effect 03 might be if the JSA were in effect during a drought period, 04 such as this, on North San Joaquin. 05 MR. LAMPE: I would have to review the modeling data 06 specifically, but my expectation would be that the JSA would 07 not have any differential impact than the current 1961 08 agreement. But I couldn't say that without discussing it 09 with the modeling team. 10 MR. SORENSON: By that do you mean it couldn't get any 11 worse under the JSA than it was under the '61 fish agreement? 12 MR. LAMPE: You made a reference to the most recent 13 drought, and, yes, that is my expectation. 14 MR. SORENSON: Then, on Page 32, where you have laid 15 out the demands for 1997, I am curious as to whether there 16 is a change -- what would the figures be for '98, given what 17 you now know? Would they be more or less or -- 18 MR. LAMPE: We are referring to Table 8, which is a 19 summary of East Bay MUD's demand and supply estimate for 20 1997? 21 MR. SORENSON: Yes. 22 MR. LAMPE: What would be my expectation for 1998? 23 MR. SORENSON: Yes. 24 MR. LAMPE: We are still in 1998. The actual demand 25 would be probably in the range of 210 mgd. 2702 01 MR. SORENSON: Why would you expect the demand to be 02 lower? 03 MR. LAMPE: Lower than what is shown as the planning 04 level of demand, 221 mgd? 05 MR. SORENSON: Yes. 06 MR. LAMPE: Two reasons. The first is that the 07 District is still in a rebound from the prior drought. Our 08 unit demand has been increasing back to what we project as 09 the planning level of demand. The other reason is the 10 affect of additional conservation and reclamation programs 11 brought on line. 12 MR. SORENSON: Maybe I could throw one in. Would the 13 wet year have anything to do with it? 14 MR. LAMPE: Wet year would also be a part of that. 15 MR. SORENSON: Then, on Pages 34 and 35, where there 16 are -- where there is reference to the goals being met by 17 2020, my question would be: What happens if those goals are 18 not met? If the demand were to increase beyond the goals 19 which you have set, what would be the result? 20 MR. LAMPE: The result is reflected in the modeling 21 that was done with respect to 2020 demand. We modeled both 22 the 228,000,000 gallon per day future demand, which is only 23 4 percent beyond what our normal demand was in 1990, and we 24 also modeled the 250,000,000 gallon day demand, which would 25 be the demand the District would be looking at if we were 2703 01 not at all successful in achieving our conservation and 02 reclamation goals. 03 So, there is modeling that we presented as a part of 04 our testimony that reflects those impacts. In effect, the 05 primary impact is increased cutbacks to District customers. 06 MR. SORENSON: Would you expect North San Joaquin Water 07 Conservation District to have any, we will call it, 08 entitlement to surplus in 2020 or even some previous time? 09 MR. LAMPE: Availability of water under your rights? 10 MR. SORENSON: Yes. 11 MR. LAMPE: I would expect that there would be years in 12 which there would be water available. Again, I would have 13 to review the specific modeling data. 14 MR. SORENSON: What sort of years would those be in 15 terms of being wet, dry or -- 16 MR. LAMPE: They would certainly be the wetter years. 17 But what percentile years, I am not competent to tell you 18 without reviewing that data. 19 MR. SORENSON: You are indicating that that wouldn't 20 have any water in many of those years, of any years, of a 21 group of years, if I can put it that way? 22 MR. LAMPE: That is correct. As is in the situation 23 today. 24 MR. SORENSON: That goes to this surplus term, that 25 North San Joaquin would have an entitlement if there was 2704 01 surplus to East Bay MUD needs; is that right? 02 MR. LAMPE: I can't speak specifically to the term 03 "surplus." 04 MR. SORENSON: I think the term "surplus" means that 05 water that North San Joaquin would be entitled to would only 06 be water that East Bay MUD didn't want or didn't have the 07 demand for, may I put it that way? 08 MR. LAMPE: North San Joaquin water rights are junior 09 to those of the District. 10 MR. SORENSON: Could I add very junior, practically 11 nonexistent to East Bay? 12 C.O. CAFFREY: Mr. Sorenson, you are not allowed to 13 testify as a cross-examiner. 14 MR. SORENSON: I was only amplifying my question. 15 C.O. CAFFREY: I believe you are not an attorney. But 16 let mow compliment you for doing so well. You were on a 17 roll. All you have to do is put it in the form of a 18 question, and you can ask just about anything. Very 19 experienced and esteemed engineer, I might add. 20 MR. SORENSON: Mr. Chairman, I have been here before. 21 Too many times. 22 C.O. CAFFREY: It shows in your ability to question 23 like a true attorney. 24 MR. SORENSON: No, I don't like that. 25 C.O. CAFFREY: I am sorry, I apologize. 2705 01 MR. SORENSON: Accepted. 02 Mr. Lampe, on Page 37, Table 11, I have looked for in 03 the category of downstream users for North San Joaquin Water 04 Conservation District, and I don't see it, and I wonder if 05 you can tell me what happened. 06 MR. LAMPE: What is demonstrated in Table 11 are those 07 rights which are senior to the East Bay Municipal Utility 08 District. 09 MR. SORENSON: Only senior? 10 MR. LAMPE: That is correct. 11 MR. SORENSON: I certainly accept that. 12 On Page 41, right about in the middle of the page, the 13 second line from the -- third line from the bottom of that 14 paragraph in the middle. I will just read: 15 Consequently, EBMUD has a limited ability to 16 absorb further reductions in its Mokelumne 17 River water supply. (Reading.) 18 That appears to be a statement, and I wonder what East 19 Bay will do to meet future demands that apparently are the 20 subject of that sentence. 21 MR. LAMPE: The context of that sentence is in 22 reference to the fact that the district has done what it 23 believes as much as it can do in terms of additional 24 conservation and reclamation programs to insure that our 25 future demand is reduced to the lowest level possible. 2706 01 What the final statement, which you quoted, indicates 02 is that even with those very substantial conservation and 03 reclamation programs in the future, the District will face 04 unacceptable shortages for its customers. It does so today. 05 And it will even more so in the future because of the 06 increased demands of senior water rights holders on the 07 Mokelumne. 08 As a consequence, the District several years ago 09 undertook a comprehensive evaluation of alternative ways to 10 supplement our Mokelumne supply. There was a programmatic 11 environmental document published by the District in 1993 12 which identified a wide array of alternative methods for 13 dealing with future shortages. So, it is still that mix of 14 alternatives that the District continues to pursue. 15 MR. SORENSON: Then, on Page 42, on the right side of 16 that Figure 4, need for additional water in 2020, 180,000 17 acre-feet. 18 MR. LAMPE: Correct. 19 MR. SORENSON: Is that a shortfall? Would you tell me 20 or explain more somewhat what that amount of water is as of 21 1920 [verbatim]? 22 MR. LAMPE: As of the year 2020. The one 180,000 23 acre-foot need for water is the amount of water that the 24 District would need in the year 2020 in order to insure that 25 its customers do not see a greater than 25 percent shortage 2707 01 during a future three-year drought. And that three-year 02 drought, as I indicated in my testimony, is an actual 03 1976-1977 event followed by a third dry year. 04 MR. SORENSON: But to solve this water shortage you 05 would be looking at several other possibilities? 06 MR. LAMPE: That is correct. 07 MR. SORENSON: Is the American one of those, the 08 American River one of those possible sources? 09 MR. LAMPE: Utilization of our American River contract 10 with the U.S. Bureau of Reclamation is one of the 11 alternatives that we are pursuing, yes. 12 MR. SORENSON: Would I assume North San Joaquin has 13 been wiped out totally by that time? 14 MR. LAMPE: No. In fact, to the contrary. I am quite 15 certain there would be some years in which North San Joaquin 16 would have water available to it. 17 MR. SORENSON: What type of years would you assume 18 those to be? 19 MR. LAMPE: This, again, would be the wetter years. 20 And without referring to the specific modeling studies, I 21 couldn't tell you how many or exactly which years those 22 would be. 23 MR. SORENSON: Would you hazard a comment as to whether 24 you think North San Joaquin would have a full demand in a 25 very wet year or whatever type of wet year you mentioned? 2708 01 MR. LAMPE: I would assume not. 02 MR. SORENSON: So, that the wet year water doesn't 03 really fill the bill, then, for North San Joaquin, does it, 04 if the demand was lower? 05 MR. LAMPE: You mean the wet year water on the 06 Mokelumne? 07 MR. SORENSON: Yes. 08 MR. LAMPE: Yes. I have no idea what alternatives 09 North San Joaquin might be pursuing in order to satisfy 10 their drought needs. 11 MR. SORENSON: What possibilities would you think North 12 San Joaquin would have? You mentioned that. 13 MR. LAMPE: I can't speculate for the North San Joaquin 14 Water District. 15 MR. SORENSON: You are aware that the District sought 16 American River water, are you not? And this was denied and 17 the District was told to try to contract with the United 18 States, and there is no Folsom south. I will stop 19 testifying now. 20 C.O. CAFFREY: Just in time. Just say, "is that so?" 21 MR. SORENSON: I was leading right to that phrase. 22 Thank you, Mr. Chairman. 23 Did you get the question, Mr. Lampe? 24 C.O. CAFFREY: Now I am testifying, excuse me. 25 MR. LAMPE: I would appreciate, Mr. Sorenson, if you in 2709 01 your imitable way can rephrase. 02 MR. SORENSON: I am not sure I can do that. Given the 03 fact that the District has a record of seeking American 04 River water without success, what success would you assume 05 they could have in the future for American River water? 06 MR. LAMPE: I can't speculate. 07 MR. SORENSON: I notice Mr. Myers felt the same way. 08 On Page 47 I see the term in the first line of the 09 second full paragraph: 10 These alternatives would place a harsh burden 11 on East Bay Municipal Utility District 12 customers, forcing dramatic lifestyle changes 13 and financial impacts. (Reading.) 14 How would you characterize "harsh" in terms of North 15 San Joaquin's lack of water? 16 MR. LAMPE: Mr. Sorenson, I can't -- I am sorry, I 17 don't work for the North San Joaquin Water Conservation 18 District. I've never done any analyses for them. I am not 19 competent to quantify. 20 MR. SORENSON: Would you agree that harsh in the case 21 of North San Joaquin would mean zero diversion, except in 22 very wet years? 23 MR. LAMPE: The North San Joaquin District relies 24 primarily on groundwater. So, there is an alternative to 25 the North San Joaquin District which is, in fact, exercised 2710 01 in dry years. 02 East Bay Municipal Utility District relies solely, 03 entirely, upon the Mokelumne supply. There is no 04 alternative. I can't tell you how I could equate the East 05 Bay situation with the North San Joaquin situation. I think 06 they are very different situations, and I don't have the 07 expertise in order to quantify that type of comparison. 08 MR. SORENSON: You certainly would agree, would you 09 not, that they aren't comparable, that East Bay has a 10 sufficient supply of water and North San Joaquin doesn't? 11 MR. LAMPE: No, to the contrary. I would feel that 12 North San Joaquin does have access to groundwater apparently 13 sufficient to its needs. The East Bay Municipal Utility 14 District already is facing shortages in future droughts 15 which will have very substantial and social impacts in the 16 East Bay Municipal Utility District area. That situation, 17 because of increased use of senior water rights holders and 18 because of increased in-stream flows associated with the JSA 19 will become even more extreme in the East Bay MUD service 20 area. 21 MR. SORENSON: Mr. Chairman, I don't want to be 22 argumentative, as I understand it, but I would point out 23 that when we do put on our case, we will be able to respond 24 to Mr. Lampe's comment about the groundwater supply. 25 C.O. CAFFREY: That is certainly your prerogative, Mr. 2711 01 Sorenson. You don't have to tell me now. You can do it in 02 your case in chief or rebuttal or your closing arguments. 03 That certainly is your prerogative. 04 MR. SORENSON: I was offering this as a response to 05 Mr. Lampe's last answer. 06 On Exhibit 10, included in the first three pages, 1, 2 07 and 3, there are references, again, to the goals and the 08 balance and the length of that. I ask you for your comments 09 about how North San Joaquin fits into the balance and the 10 goals that you have indicated them from the East Bay 11 standpoint. 12 MR. LAMPE: The statements there deal with the 13 relationship between the East Bay Municipal Utility District 14 and the resources of the Mokelumne River and the senior 15 water rights holders on the Mokelumne. There is not an 16 attempt here to try and deal with the entire universe of 17 interest on the Mokelumne River. 18 MR. SORENSON: If I were to take your word "universe" 19 and try instead of that "regional," would that change your 20 reaction at all? 21 MR. LAMPE: In what way? 22 MR. SORENSON: Well, would there be any action on the 23 part of East Bay to seek a regional solution to the 24 Mokelumne River problem? 25 MR. LAMPE: The District has, in fact, as a part of the 2712 01 planning process, which I mentioned earlier resulting in the 02 1993 programatic EIR and even more intensively following the 03 adoption of that document, undertaken a process to see if 04 there weren't win-win opportunities for developing 05 sufficient water supplies not only for the East Bay 06 Municipal District but other interests within the Mokelumne 07 area and, in fact, in broader basins. 08 We continue to pursue those options and those 09 opportunities. 10 MR. SORENSON: In regard to some of those opportunities 11 that you are following up on or seeking, do you see regional 12 satisfaction in any of those? 13 MR. LAMPE: We believe that, as part of the 1993 14 Programmatic EIR, there were joint projects proposed by the 15 District that had very substantial benefit to parties other 16 than the East Bay Municipal District. We continue to pursue 17 those opportunities with those third parties, but as yet 18 have not been able to develop a joint program. 19 MR. SORENSON: Isn't it true that in seeking a solution 20 or solutions, such as you mentioned, that the quantities of 21 water are nowhere near what some of the entities need and 22 demonstrate a need for? 23 MR. LAMPE: That is, frankly, not our conclusion. Our 24 conclusion is that the quantities of water we have been 25 talking about, in our view, would approach the actual needs 2713 01 of the entities involved. But they do not approach the 02 demands or desires of the entities involved. And that has 03 been one of the major stumbling blocks, in my view, in our 04 ability to develop a joint program. 05 MR. SORENSON: You're recognizing a difference, though, 06 in what some of the local interests are seeking and what 07 you're planning, if I could use that term? 08 MR. LAMPE: In the quantities sought, I could agree 09 with that, yes. 10 MR. SORENSON: These are substantial in many cases, are 11 they not? 12 MR. LAMPE: Quantities sought as opposed to quantities 13 needed? 14 MR. SORENSON: Right. 15 MR. LAMPE: Yes. 16 MR. SORENSON: Are they in the range of five to one or 17 ten to one or a hundred to one? 18 MR. LAMPE: I would ask you to be a little more 19 specific in terms of what entities we have been talking 20 about. We have been talking with many different entities. 21 Which entity or combination of entities would you be 22 referring to? 23 MR. SORENSON: Could I satisfy this part of it by 24 saying, as far as North San Joaquin is concerned, the 25 numbers that we have talked about are, maybe, 20 percent of 2714 01 what we feel are the needs? 02 MR. LAMPE: For North San Joaquin District alone? 03 MR. SORENSON: Yes. 04 MR. LAMPE: I don't recall any specific amount for 05 North San Joaquin. 06 MR. SORENSON: On Page 9 of this Exhibit Number 10, 07 where there is a discussion about the amounts of release 08 water on the settlement, when you talk about the "baseline," 09 could you gave me an idea of what baseline means to you in 10 this case? 11 MR. LAMPE: I am scanning that page now to try to 12 identify the term to establish context. Do you have a 13 reference? Down here? 14 MR. SORENSON: In the footnotes I notice it. But 15 referring back up to the footnote you will find -- 16 MR. LAMPE: I believe you might be referring to the 17 last full sentence on that page. Is that correct? 18 MR. SORENSON: Yes. 19 MR. LAMPE: The baseline there refers to the baseline 20 identified by the State Board in their EIR. 21 MR. SORENSON: On Page 12 and again on Page 13, in 22 reference to the acceptance by the other parties of your 23 proposed settlement, did you tell any of those other parties 24 about what some of the effects might be on an increased 25 fishery release in the Mokelumne to some of the, say, the 2715 01 junior water rights holders? 02 MR. LAMPE: Did we tell the impacts? In terms of water 03 availability in the Mokelumne are very clearly identified in 04 all of the modeling work in which the District has done from 05 1990 through current date. At the time that we were 06 discussing these flows, all of that data was available to 07 all parties to determine exactly what the allocation of 08 Mokelumne River water would be as a result of the JSA flows 09 as opposed to the current requirement of the 1961 10 agreement. 11 MR. SORENSON: Would you expect those other signatories 12 to be happy with more water in the Delta given their 13 dependence on exported water? 14 MR. LAMPE: I believe that that is the basis for their 15 agreement to the MOU. This is, in fact, a settlement 16 agreement. So that we were not asking for payment for the 17 water that we were providing to the Bay-Delta, they were 18 acknowledging that that was a benefit to them and might 19 offset a liability that they might ultimately be responsible 20 for. 21 MR. SORENSON: I have a couple questions for Mr. 22 Skinner, if I may. 23 Mr. Skinner, and I don't know which appendix it is, but 24 a part of your Exhibit 4 there are two tabulations I would 25 like to query on. They get at the water available to North 2716 01 San Joaquin in feet. One goes to the 1961 agreement and the 02 other goes to a term I am not totally familiar with called 03 the Mokelumne Partnership Agreement. 04 Is that the JSA? 05 MR. SKINNER: That is correct. 06 MR. SORENSON: I hadn't seen that term before. Thank 07 you for clearing that up. 08 I think those two tabulations that I am referring to, 09 these two comparisons, came from different appendices. Is 10 that right? 11 MR. SKINNER: I am not sure what you are referring to. 12 MR. SORENSON: My guess is -- I am not testifying, 13 Mr. Chairman. One is a -- 14 C.O. CAFFREY: You are laying a foundation. 15 MR. SORENSON: That one is Appendix F and one is 16 Appendix G. I don't know what the page numbers are. I 17 don't see a page numbering. 18 MR. SKINNER: I guess I don't know what table you are 19 referring to. 20 MR. SORENSON: Why don't I pass these over to you. 21 I think you have seen those before. 22 MR. SKINNER: I believe these are copies of the tables 23 that I faxed you last night. 24 MR. SORENSON: That's correct. 25 C.O. CAFFREY: Would you mind sharing with the Board 2717 01 what -- 02 MR. SORENSON: These are part of appendix -- 03 MR. SKINNER: Yeah. One that I am looking at is 04 entitled, "Water Available to NSJWCD in Acre-Feet" for 05 study Number 6083. The full number is 9722210-6083-CDFG. 06 C.O. CAFFREY: Thank you, sir. 07 MR. SKINNER: The other table I am looking at is "Water 08 Available to NSJWCD in Acre-Feet." It is from study Number 09 6075-FWS. 10 C.O. CAFFREY: Thank you. 11 MR. SORENSON: I have some note on those. Mr. 12 Chairman, I might note that I, some months ago, talked to 13 Mr. Myers about available information on the comparison, and 14 yesterday I put a call in to Mr. Myers and Mr. Skinner and I 15 discussed, and through a strange set of circumstances, he 16 got them to me last night. 17 On those two tabulations, Mr. Skinner, would you give 18 me an idea of what the general effect is, let's say the 19 bottom line, the average as to when North San Joaquin would 20 get water and when North San Joaquin would not get water? 21 MR. SKINNER: Are you referring to the average on the 22 lower right-hand side of the table? 23 MR. SORENSON: Yes. First. 24 MR. SKINNER: Under the 6075-FWS? 25 MR. SORENSON: Which is what, the '61 -- 2718 01 MR. SKINNER: Joint Settlement Agreement. 02 MR. SORENSON: That is the recent one. 03 MR. SKINNER: On the lower right-hand side, the average 04 is 5,067 acre-feet average annual. 05 And on 6083-CDFG, the 1961 agreement case, the average 06 annual is 6,000 acre-feet. 07 MR. SORENSON: So taking the difference there, it is 08 about 900 and something. I don't remember the exact figures 09 there on the edge. That is a substantial reduction from the 10 average that the District would have had under the '61 11 agreement; is it not? 12 MR. SKINNER: "Substantial" is a relative term, but it 13 is a reduction. 14 MR. SORENSON: Well, it is 900 and 6000, and that seems 15 substantial in my definition. Isn't that true? 16 MR. SKINNER: The number is some 900-plus acre-feet. 17 MR. SORENSON: As far as years in which water is 18 available, and I assume those are the wet years that Mr. 19 Lampe spoke about, and we recognize, but, as I remember, in 20 the '61 agreement there were more years in which North San 21 Joaquin would have water than under the JSA; is that not 22 correct? 23 Mr. Skinner, if you look at my notes, if you will 24 accept my notes at the bottom -- 25 C.O. CAFFREY: Rather unusual that the cross-examiner 2719 01 counsels the witness. 02 MR. SKINNER: I don't think I can. It appears that 03 there are a few instances under the JSA, or it appears there 04 are a few instances under the 1961 agreement where North San 05 Joaquin gets water and under the JSA they do not. 06 MR. SORENSON: As I remember the numbers under the JSA, 07 there are seven years lost out of the original 45. There 08 again, I will use the term "substantial." Would you agree 09 that that is substantial? 10 MR. SKINNER: No. I wouldn't agree or disagree. I 11 think it is a relative term. It depends on your point of 12 view. 13 MR. SORENSON: I will agree with that and say, thank 14 you very much. 15 Mr. Chairman, I am through. 16 C.O. CAFFREY: Thank you very much, Mr. Sorenson. 17 Mr. Shephard, I believe you are next. 18 MR. SHEPHARD: I have no questions. The areas that I 19 would have covered have been covered. 20 C.O. CAFFREY: Ms. Zolezzi. Good afternoon, welcome. 21 ---oOo--- 22 CROSS-EXAMINATION OF EAST BAY MUNICIPAL UTILITY DISTRICT 23 BY EAST STOCKTON WATER DISTRICT 24 BY MS. ZOLEZZI 25 MS. ZOLEZZI: Good afternoon, thank you. 2720 01 Jeanne Zolezzi, representing the East Stockton Water 02 District. 03 Most of the questions that I had have already also been 04 covered. Unfortunately, a couple of them, though they have 05 been asked, have not been answered. So, whether it is smart 06 or not, I am going to make another attempt to try to get an 07 answer, because, frankly, I need it. I don't understand. I 08 am going to try with Mr. Lampe, if I might. 09 Perhaps instead of asking the question, I would make a 10 statement to see if I understand the rationale of East Bay 11 MUD. I am talking about the questions that were asked 12 earlier having to do with the backstop, phrase that no one 13 fully understands, and attempting to get to the point if the 14 Department of Water Resources is not backstopping the 15 entire quantity, but only a portion, who might be 16 backstopping the remainder. 17 Mr. Lampe, you had difficulty with that question, and I 18 think perhaps the reason is, and I don't intend to put words 19 in your mouth, I am going to say my understanding of it and 20 please correct me, is that if the State Board accepts the 21 settlement being proposed by East Bay here today, that it 22 would necessarily find that that is East Bay MUD's and the 23 Mokelumne's contributions and there would be no fair share 24 to be made up. 25 Is that your understanding? 2721 01 MR. LAMPE: Yes. 02 MS. ZOLEZZI: If that is the case, then I guess my 03 confusion comes from the testimony submitted by the 04 Department of Water Resources, and I will ask both you and 05 Mr. Russell then to try to explain the meaning of the 06 testimony that the Department of Water Resources put in, and 07 I will read from that: 08 That the Department agrees to meet its share 09 of the responsibility for providing any 10 additional water as may be directed by the 11 Board to be reasonable and appropriate to 12 meet the agency's theoretical obligation to 13 meet Delta objectives at this hearing. 14 (Reading.) 15 Do you understand what that language purports to do? 16 MR. LAMPE: I have an understanding of it. The 17 understanding that I have is that, as I indicated earlier, 18 what we offer to the State Board is what we believe to be 19 the reasonable, appropriate allocation from the Mokelumne 20 River to achieve in the Bay-Delta standards. 21 We believe the State Board ought to be able to be in a 22 position to accept that for the Mokelumne as the reasonable 23 contribution for the Mokelumne. I also understand and very 24 much appreciate the Department of Water Resources bringing 25 also to the Board the opportunity that, if the Board 2722 01 determines a different mechanism for determining all flow 02 allocations, but believes that the allocation that we have 03 offered is appropriate so far as East Bay MUD is concerned, 04 the Department of Water Resources has suggested there is an 05 opportunity that they could deal with whatever additional 06 the State Board might decide to allocate to the Mokelumne 07 River. 08 MS. ZOLEZZI: DWR has only agreed to meet its share of 09 that responsibility, that theoretical responsibility? 10 MR. LAMPE: That is my understanding from the 11 testimony. 12 MS. ZOLEZZI: And realizing you are not with the 13 Department, do you have any understanding of who would take 14 up the remaining share of that theoretical responsibility? 15 MR. LAMPE: That is a decision for the State Board. 16 MS. ZOLEZZI: Is it possible that other watersheds 17 would have imposed upon them that theoretical 18 responsibility? 19 MR. LAMPE: It's supposing, first of all, that there 20 is an unallocated theoretical responsibility that is yet a 21 decision for the State Board to make. 22 MS. ZOLEZZI: I agree with you. The only reason I am 23 assuming there is is because the Department felt necessary 24 to address that theoretical obligation. 25 MR. LAMPE: My interpretation, again, of what the 2723 01 Department has done is to make an offer to the Board that 02 may or may not be of value to the Board, may fit into the 03 Board's ability to make certain decisions, so it is 04 expanding and creating opportunities for the Board in coming 05 to closure on this issue. 06 MS. ZOLEZZI: Perhaps I can ask the same question of 07 Mr. Russell if I could indulge you to come forward once 08 again. 09 Thank you. 10 Again, given the fact that your testimony addresses the 11 fact that DWR agrees to meet its share of the responsibility 12 for providing any theoretical additional obligation to meet 13 Delta objectives, do you have any ideas where the other 14 portions of that responsibility might come from? 15 MR. RUSSELL: I appreciate your question, but I think 16 it is a little premature right now to actually identify 17 that. We still have several phases of the proceeding to go 18 through. And although I realize this is focusing on the 19 Mokelumne and, specific, if the Board elects to go through a 20 Phase VIII, and makes a mix of the alternatives that are 21 before them now, which is possible, then there may be a 22 different amount of water sought from the Mokelumne system 23 than what is identified at present. 24 So, our attempt here is to backstop that uncertainty 25 for the Board. 2724 01 MS. ZOLEZZI: Two follow-up questions to that. Your 02 attempt to backstop, again, is not 100 percent? 03 MR. RUSSELL: That is correct. 04 MS. ZOLEZZI: Do you have any idea who would step up to 05 the plate, no pun intended, if additional amounts are 06 needed? 07 MR. RUSSELL: Yes. Let's see if I can expand on that 08 a little bit. It is possible. Early on we were developing 09 or trying to develop some arrangement of agreement that 10 included other parties. And at that time we felt that it 11 was likely that they might come onboard, and that they would 12 be part of the backstop. That hasn't matured to the point 13 where I can offer it or be a party to a group offering it 14 to the Board. Again, it is too early actually for us to say 15 who they would be at this time. 16 MS. ZOLEZZI: So, as to that theoretical backstopping 17 amount of water, we have a portion of it backstopped and a 18 portion, really, up for grabs, for the Board to allocate to 19 potentially other parties? 20 MR. RUSSELL: Yes. 21 MS. ZOLEZZI: The second follow-up and final question: 22 Given your statement that it is perhaps premature to 23 determine who those other parties might be who may be asked 24 to come forward and make that contribution, doesn't that 25 necessarily make you conclude that it is premature to 2725 01 consider the settlement agreement? 02 MR. RUSSELL: I am not going to speak for the Board, 03 but what I understand this process is about is to bring 04 information before the Board for their consideration and 05 they won't make a final decision until after Phase VIII, if 06 they should hold one. This is more evidence or more 07 information for them to consider as they go forward. 08 Thank you. 09 C.O. CAFFREY: Thank you, Ms. Zolezzi. 10 Mr. Jackson. Good afternoon, sir. 11 ---oOo--- 12 CROSS-EXAMINATION OF EAST BAY MUNICIPAL UTILITY DISTRICT 13 BY REGIONAL COUNCIL OF RURAL COUNTIES 14 BY MR. JACKSON 15 MR. JACKSON: Mr. Russell, would you please 16 return. And for the benefit of the folks here, Mr. Nuzum, 17 Mr. Lampe and Mr. Myers and Dr. Grace will be after 18 Mr. Russell. And we will not retry the Mokelumne River 19 in-stream flow case. 20 C.O. CAFFREY: I think you're disappointing Mr. Del 21 Piero. That is for another time. 22 MR. JACKSON: Twenty-three days was enough. 23 Mr. Russell, I want to start with the backstop 24 questions, as well. Does the Memorandum of Agreement signed 25 by DWR backstop all of the water users on the Mokelumne 2726 01 River or only East Bay MUD? 02 MR. RUSSELL: Mr. Jackson, at this time we have not 03 signed a Memorandum of Agreement. 04 MR. JACKSON: As you testify here today about the 05 backstop, is it the present inclination of DWR to backstop 06 all of the water users on the Mokelumne River or only East 07 Bay MUD? 08 MR. RUSSELL: If we enter into an agreement with East 09 Bay MUD, it would be specifically for them. 10 MR. JACKSON: Mr. Russell, calling your attention to an 11 earlier exhibit, CCWD Exhibit Number 6, that was entered in 12 evidence this morning by Mr. Maddow, have you had a chance 13 to look at that exhibit? 14 MR. RUSSELL: Okay. I have looked it over. 15 MR. JACKSON: Calling your attention to the 1961 16 agreement, it has a number in terms of acre-feet. What is 17 that number, sir? 18 MR. RUSSELL: Since the only category that doesn't have 19 a unit over it is the shaded area, and corresponding to the 20 row the 1961 agreement is, they have flows into the Delta of 21 291,448, and I presume that is acre-feet since the title 22 says "Acre-Feet." Below it to the column to the left of it 23 is mgd. 24 MR. JACKSON: Is it your understanding from that table 25 that that is the amount of water which presently flows into 2727 01 the Delta out of the Mokelumne River through the East Bay 02 MUD facilities? 03 MR. RUSSELL: I haven't checked that number. 04 MR. JACKSON: Calling your attention to the next lines, 05 the numbers -- the second line is the agreement, the Joint 06 Settlement Agreement, and that shows an increase in flow 07 into the Delta over the 1961 agreement, does it not? 08 MR. RUSSELL: It compares 291,448 with 298,043, yes. 09 MR. JACKSON: If you go to the next step, essentially, 10 at 2020 usage there is a lower number yet, is there not? 11 MR. RUSSELL: Yes, there is. 12 MR. JACKSON: The difference is, approximately? 13 MR. RUSSELL: I am going to say approximately 23,000 14 acre-feet. 15 MR. JACKSON: If you go to the bottom number and assume 16 the 2020 numbers for East Bay MUD, the number is different 17 again, and this time it adds up to about 50,000, does it 18 not, from the 1961 present flows? 19 MR. RUSSELL: Maybe I misrepresented the other flows. 20 I was subtracting the 1995 settlement from the 2020 21 settlement at 22,000,000 gallons a day for the first row and 22 228,000,000 gallons for the second. 23 Did I read the numbers that you were interested in? 24 MR. JACKSON: Yes, sir. 25 Then the last column indicates a 257 number? 2728 01 MR. RUSSELL: I see the 257,117. 02 MR. JACKSON: That is -- which of those numbers is DWR 03 talking about backstopping? 04 MR. RUSSELL: I think it is important to understand 05 that on a day-to-day basis that the flows entering the Delta 06 will be dependent on California's hydrology, and that for 07 the purposes of discussion, these values are only for, you 08 might say, analysis, if you will. 09 MR. JACKSON: So it doesn't make any difference to 10 DWR's backstop offer whether the number is a 50,000, 100,000 11 or 3,000? 12 MR. RUSSELL: For the backstop to be in place it would 13 be whatever flows are required at that time. 14 MR. JACKSON: Let's talk about the river. Does -- 15 MR. RUSSELL: Which one? 16 MR. JACKSON: The Mokelumne. Does DWR have any 17 facilities on the Mokelumne River? 18 MR. RUSSELL: No. 19 MR. JACKSON: Is there any way that you can get water 20 from your facilities into the Mokelumne River? 21 MR. RUSSELL: Not that I am aware of. 22 MR. JACKSON: Is there any indication that you are 23 going to purchase water from other water users to backstop 24 this agreement on the Mokelumne River? 25 MR. RUSSELL: I am not aware of any discussions along 2729 01 those lines. 02 MR. JACKSON: From what facilities could you deliver 03 water to the Delta to backstop this agreement? 04 MR. RUSSELL: Presuming that the backstop that you are 05 referring to are the flow objectives in the Water Quality 06 Control Plan, and to the extent that we could either cut 07 back on exports that is pumping at the Banks Pumping Plant 08 or increase flows through the Feather River system into the 09 Delta, those would be two opportunities. 10 MR. JACKSON: All right. Let's examine those. 11 If the flows were taken out of the -- out of storage at 12 Oroville, they would deplete to some extent the carryover 13 storage at Oroville, would they not? 14 MR. RUSSELL: That is too general a question to 15 answer. 16 MR. JACKSON: If you release water, additional water, 17 to take over the obligation of East Bay MUD on the Mokelumne 18 River for X2, would it require you to release more water 19 from storage in Oroville? 20 MR. RUSSELL: Potentially yes, maybe not. 21 MR. JACKSON: You might be able to take it out by 22 lowering exports at the state pumps? 23 MR. RUSSELL: That is correct. 24 MR. JACKSON: Does this agreement commit you in any way 25 to which way you do that, more water out of Oroville or less 2730 01 water into the canal? 02 MR. SANDINO: Object to that. He asked a question 03 relating to the agreement, and I think testimony is that we 04 don't have an agreement yet. 05 Maybe you can clarify the question. 06 MR. JACKSON: Sure. 07 Have you done any environmental analysis of which of 08 the two ways would cause the least harm to the Sacramento 09 River chinook salmon? 10 MR. RUSSELL: No. 11 MR. JACKSON: Have you done any analysis to see which 12 of these two methodologies, either the release of water from 13 Oroville or the lessening of exports at the pumps, would 14 cause -- would have the least effect on the Delta smelt? 15 MR. RUSSELL: No. 16 MR. JACKSON: Have you examined which of those two 17 methodologies would have the least effect on the fall-run 18 chinook on the Mokelumne River? 19 MR. RUSSELL: Let me broaden my answer a little bit, 20 in that there are ongoing studies that I am aware of that 21 are trying to assess the answers to the questions you are 22 asking with regard to project operations and fisheries in 23 the Delta. 24 MR. JACKSON: Are they part of some EIR process that is 25 ongoing right now? 2731 01 MR. RUSSELL: I believe they are part of the 02 Interagency Ecological Program. 03 MR. JACKSON: When would the results of that 04 Interagency Ecological Program on these issues be available, 05 if you know? 06 MR. RUSSELL: I don't know. 07 MR. JACKSON: Would you expect to have them within the 08 next six months? 09 MR. RUSSELL: Again, I don't know. 10 MR. JACKSON: Have you reviewed the State Board's EIR 11 on this subject? 12 MR. RUSSELL: Which subject? 13 MR. JACKSON: On the subject of your backstop 14 agreement, as to which would be the appropriate methodology, 15 releasing more water from the Feather River or cutting back 16 on exports at Banks? 17 MR. RUSSELL: Let me expand again. The Board's EIR 18 entertains consideration of at least seven flow 19 alternatives, one of which is D-1485. And in that 20 arrangement the State Water Project and the Central Valley 21 Project are meeting all the D-1485 requirements. Flow 22 Alternative 2 is the 1995 Water Quality Control Plan, and in 23 that flow alternative the CVP and the State Water Project 24 are meeting all the Water Quality Control Plan objectives. 25 So, as the process goes forward in the flow alternatives, we 2732 01 have bracketed the impacts that you are speaking to. 02 MR. JACKSON: In other words, you believe that the 03 impacts on Mokelumne River are the impacts of your choice of 04 where to supply the water for the backstop are already 05 bracketed by the Board's EIR? 06 MR. RUSSELL: Yes, I do. 07 MR. JACKSON: There is no other study that you know of 08 related to that decision as it relates to the Mokelumne 09 River? The decision of whether to release more water from 10 Oroville or to cut back on pumping at Banks? 11 MR. RUSSELL: Would you ask the question again, 12 please. 13 MR. JACKSON: Other than the State Board EIR, which you 14 believe covers the subject, to your knowledge there is no 15 ongoing environmental analysis of whether your backstop 16 should be -- to release more water from the Feather River 17 Project at Oroville or whether to lessen exports at Banks? 18 MR. RUSSELL: This will take a little explanation. 19 MR. JACKSON: Yes, sir. 20 MR. RUSSELL: I am aware that the CVPIA is 21 investigating Delta modeling results. Also the Department 22 of Water Resources, Bureau of Reclamation Interim South 23 Delta Program is evaluating flow and salinity impacts in the 24 Delta associated with the inflows. To the extent that these 25 issues are also being discussed in the fishery context, 2733 01 which I suspect they are, but I don't have personal 02 knowledge of, then I would have to say you look to those 03 environmental documents to answer your question. 04 MR. JACKSON: Thank you, sir. 05 In the signing of the Principles of Agreement or 06 whatever level of signing you have done so far, has there 07 been any commitment by the DWR, one way or the other, about 08 which of the methodologies they will use for the backstop? 09 MR. RUSSELL: First, we haven't signed anything. 10 MR. JACKSON: So, you are not committed either way? 11 MR. RUSSELL: Not at this time. 12 MR. JACKSON: Thank you, sir. 13 I believe Mr. Nuzum, perhaps. 14 Mr. Nuzum, I would like to talk a little about the 15 Mokelumne River system. If there is someone else who 16 seemingly should answer the question, please feel free to 17 direct me to that person. 18 What facilities does East Bay MUD own on the Mokelumne 19 River? 20 MR. NUZUM: We have Pardee Reservoir, the dam and the 21 spillway facilities, the powerhouse. We have Pardee 22 recreation area. We have Camanche Dam downstream, ten miles 23 from Pardee Dam. We have Camanche North Shore recreation 24 area, Camanche South Shore recreation area. We have the 25 Camanche Hills Hunting Preserve and the Rabbit Creek Arm at 2734 01 North Shore. Obviously, we have Camanche Dam, the 02 powerhouse and the spillway. 03 Downstream of Camanche Dam we have the Mokelumne River 04 day-use area, which is a public park and we have the 05 Camanche Fish Hatchery, which the District owns and the 06 California Department of Fish and Game operates. 07 MR. JACKSON: That is located just below the base of 08 Camanche Dam? 09 MR. NUZUM: It is. 10 MR. JACKSON: And connected to Camanche Reservoir for 11 your water source for the hatchery? 12 MR. NUZUM: Yes, it is. 13 MR. JACKSON: Are there other facilities owned by other 14 parties on the Mokelumne River, to your knowledge? 15 MR. NUZUM: On the Mokelumne River itself? 16 MR. JACKSON: Yes. 17 MR. NUZUM: Yes. 18 MR. JACKSON: Would you, starting at the top of the 19 Sierra, identify the facility. 20 MR. ETHERIDGE: Mr. Jackson, that question might be 21 more properly addressed to Mr. Myers. He covers the 22 Mokelumne watershed facilities. 23 MR. JACKSON: Certainly. I will be glad to do that. 24 Mr. Myers, what other facilities, to your knowledge, 25 are there on the Mokelumne River owned by others? 2735 01 MR. MYERS: Mr. Jackson, there is a map on Page 27 of 02 my Exhibit Number 2 that identifies the other major users on 03 the Mokelumne River, which starts with Pacific Gas & 04 Electric Company, the Amador Water Agency, the Jackson 05 Valley Irrigation district, all those in Amador County, the 06 Calaveras County Water District and Calaveras Public Utility 07 District in Calaveras County. 08 And below East Bay MUD in San Joaquin County there is 09 Woodbridge Irrigation District and North San Joaquin Water 10 Conservation District. 11 MR. JACKSON: Let's start at the top. 12 Are there -- PG&E owned facilities with storage was 13 identified as approximately 220,000 acre-feet above Pardee? 14 MR. MYERS: That is correct. 15 MR. JACKSON: In that regard, have you factored any 16 change of operation in the upstream facilities into your 17 water availability study? 18 MR. ETHERIDGE: I believe that question was already 19 asked and answered this morning. 20 MR. JACKSON: It may well have been. I may not have 21 been here at the time. If it is not -- is the answer to 22 that yes or no? 23 MR. MYERS: I believe the answer is no, unless you 24 would like to go further into that question. 25 MR. JACKSON: Let's talk, then, about Calaveras. First 2736 01 of all, what county is Pardee located in? 02 MR. MYERS: It straddles the county line between Amador 03 and Calaveras County. 04 MR. JACKSON: What county is Camanche in? 05 MR. MYERS: It's actually in all three counties: 06 Amador, Calaveras and San Joaquin. 07 MR. JACKSON: The upstream water users are senior in 08 priority; is that correct? 09 MR. MYERS: There are upstream senior water users, yes. 10 MR. JACKSON: Who are they? 11 MR. MYERS: The Pacific Gas & Electric -- the same 12 agencies that I mentioned. 13 MR. JACKSON: Would you mention all of them again for 14 the record. 15 MR. MYERS: PG&E, the Amador Water Agency, actually it 16 is not a water rec holder; they purchase water from PG&E. 17 The Jackson Valley Irrigation District, Calaveras County 18 Water District, Calaveras Public Utility District, our 19 upstream -- the whole series of water rights on the 20 Mokelumne are quite complex because East Bay MUD has two M&I 21 water rights on the Mokelumne at different dates. Some of 22 these agencies are on different places in the hierarchy on 23 the seniority. 24 MR. JACKSON: Are these agencies backstopped by your 25 agreement? Or if the agreement were accepted by the Board, 2737 01 could these senior water rights holders be liable for the 02 part of the flow after you do your agreement? 03 MR. MYERS: I don't understand the question. 04 MR. JACKSON: All right. You are trying to reach an 05 agreement with the export interests and DWR and maybe the 06 Bureau for a backstop on the Mokelumne River, correct? 07 MR. MYERS: We have a Memorandum of Understanding with 08 some exporter agencies. 09 MR. JACKSON: And you are -- is there somebody else 10 that I should be talking to? 11 MR. ETHERIDGE: I think these questions might more 12 properly be addressed to Mr. Lampe. 13 MR. JACKSON: Sure. 14 Mr. Lampe, are you attempting to go reach an agreement 15 with DWR to backstop only your agency or to backstop the 16 senior people, senior to you on the river? 17 MR. LAMPE: The settlement offer we have before the 18 State Board is between the eight entities that have signed 19 that Memorandum of Understanding. 20 MR. JACKSON: In other words, that answer would be no? 21 MR. LAMPE: My answer is what my answer is. 22 MR. JACKSON: The senior water rights holders need to 23 take care of themselves; you are not doing anything to take 24 care of them in this agreement? 25 MR. LAMPE: That is correct. At the time that we 2738 01 developed this agreement, we offered the opportunity for the 02 other entities on the Mokelumne to join in the settlement 03 agreement, and at that time they declined. 04 MR. JACKSON: Now, if, in fact, you've reached 05 agreement, and DWR and/or the Bureau or both agreed to 06 backstop your agency's commitment, would it be fair to say 07 that that could result in a reversal of priority on the 08 river? 09 MR. LAMPE: If we reached agreement? Clarify. 10 MR. JACKSON: If you reached agreement that your fair 11 share would be backstopped by DWR and/or the Bureau, 12 wouldn't that leave the junior water rights holder without 13 any obligation and the senior water rights holders subject 14 to a call for water in the Delta? 15 MR. LAMPE: I don't interpret it that way. What the 16 Board has requested is that the development of settlement 17 agreements. That is what we have prepared and placed before 18 the Board. And as I earlier indicated, our offer here is 19 independent of any backstop from any other entity. We 20 appreciate very much the interest that the Department of 21 Water Resources has offered here. It would be helpful for 22 other entities to also sign on to the agreement, in 23 essence. But we have our offer before the State Board. It 24 would be a discretionary decision of the State Board whether 25 or not additional flows were required by other senior water 2739 01 rights holders on the Mokelumne. 02 MR. JACKSON: But it would be your -- it actually could 03 be a practical result of this agreement process that you 04 satisfy your obligations completely and that others who are 05 senior to you on the river would still be required to 06 release flow? 07 MR. LAMPE: My understanding is that that is the 08 process that the Board initiated. They offered the 09 opportunity for entities to develop settlement agreements 10 and to place them before the Board. We have done so. 11 Senior water rights holders on the Mokelumne had 12 similar opportunities and could also do so. It would be 13 highly speculative to suggest that, since we were the only 14 ones that took advantage of that opportunity, that the Board 15 would take some kind of action that would impose further 16 requirement on senior water rights holders. 17 MR. JACKSON: Just so that we have it clear, East Bay 18 MUD is taking care of itself and itself only? 19 MR. LAMPE: East Bay MUD offered the opportunity for a 20 settlement agreement on the entire Mokelumne River. Other 21 entities on the Mokelumne declined to participate in that 22 settlement agreement. The District moved forward. 23 MR. JACKSON: And the result of the settlement -- you 24 believe that the Board offered the opportunity to reach 25 settlements no matter what their effect on the priority 2740 01 system of the River was? 02 MR. ETHERIDGE: I believe that is misstating Mr. 03 Lampe's testimony. 04 MR. JACKSON: Let me try it again. 05 Do you believe that the settlement -- that the 06 settlement process which the Board has offered can insulate 07 a junior water rights holder on the river from having to 08 send water into the Delta while requiring that water be 09 released to Delta by senior water rights holders? 10 MR. LAMPE: No. At least so far as our agreement is 11 concerned we are -- the essence of the agreement is to 12 release additional waters to the Delta. So, East Bay 13 Municipal Utility District is contributing substantially 14 increased flows to the Delta. 15 MR. JACKSON: Did you see the CCWD Exhibit 6? 16 MR. LAMPE: I did. 17 MR. JACKSON: Do you disagree with their analysis of 18 your documents from East Bay MUD Exhibit Number 4 that show 19 that both for the year 2020 level of development with East 20 Bay MUD's demand at 228 and for the 2020 level of 21 development for the level of demand at 250,000,000 gallons 22 mgd that the numbers will result in declining flows into the 23 Delta from your 1961 agreement? 24 MR. LAMPE: I believe that the information is 25 misapplied, yes. 2741 01 MR. JACKSON: Misapplied? 02 MR. LAMPE: Exactly. 03 MR. JACKSON: In what manner? 04 MR. LAMPE: As was demonstrated during the discussion 05 between Mr. Maddow and Mr. Skinner. Mr. Skinner pointed 06 out, of course, as senior water rights holders use more 07 water, over time more water diverted from the system, less 08 water will reach the Delta. Looking at average numbers 09 doesn't deal with the issue before us here. 10 What these numbers mask is the fact that there are 11 substantially increased flows in all scenarios during the 12 dry and critically dry year periods. 13 MR. JACKSON: Excuse me, sir, but calling your 14 attention to the documents from Exhibit 4 that were quoted 15 by Mr. Maddow, weren't there substantial time periods in 16 which in critical years there was no additional -- during 17 critical months of critical years there was no additional 18 inflow? 19 MR. LAMPE: Not during critical months in the context 20 of how the Delta is operated. That is, again, as was 21 discussed in earlier comments, the evaluation that has been 22 done by the other signatories to the Memorandum of Agreement 23 took a look at the specific schedules that Mr. Maddow was 24 pointing out this morning, which show that in certain months 25 there are significantly increased flows and in other months 2742 01 there are not as significant or in some cases no additional, 02 beyond current level, flows to the Delta. But because of 03 the project's ability to reoperate, they can take advantage 04 of that water when it is made available in the Mokelumne, 05 store project water for releases in other periods. There is 06 a net benefit of Mokelumne flows to the Delta. 07 MR. JACKSON: Let's talk about that, Mr. Grace, 08 please. 09 C.O. CAFFREY: Excuse me, Mr. Jackson, how much more 10 time do you think you are going to need? You have plenty of 11 time. 12 MR. JACKSON: I understand that, sir. But I would 13 think probably no more than 30 to 40 minutes. 14 C.O. CAFFREY: Let's take our break now. Then we will 15 come back and finish yours. 16 Thank you, sir. 17 (Break taken.) 18 C.O. CAFFREY: We are back on the record. 19 Mr. Jackson, whenever you are ready, sir. 20 MR. JACKSON: Dr. Grace, it is my understanding from 21 reading your testimony, East Bay MUD Exhibit Number 5, that 22 you essentially studied the availability of cold water in 23 Camanche and Pardee and the use of that water for the 24 fishery below Camanche? 25 MR. GRACE: Yes. I looked at the output from EBMUD SIM 2743 01 to see the years in which there was storage to maintain 02 stratification in the two reservoirs, Pardee and Camanche. 03 MR. JACKSON: In doing that, did you assume a flow 04 below Camanche so that you could calculate back to see 05 whether or not you had enough cold water in storage? 06 MR. GRACE: I didn't assume anything. I took the 07 output from EBMUD SIM, and I looked at it for years in which 08 there was 198,000 acre-feet in Pardee and Camanche systems 09 so that at that level you could generally maintain 10 stratification in those two reservoirs. 11 Let me say, however, that a flexible management system 12 is used by East Bay MUD to maintain stratification, and it 13 depends on the year, the temperatures, the meteorology. But 14 those are numbers used for analysis because that is about 15 the level at which you can maintain stratification. 16 MR. JACKSON: In terms of your 190,000 acre-feet, it is 17 required, I take it, by the modeling that that 190,000 18 acre-feet be in the hypolimnion? 19 MR. GRACE: No. That is a total volume in the two 20 reservoirs. The operation is typically to maintain 20 to 21 20,000 acre-feet in the hypolimnion of Camanche to maintain 22 stratification in Camanche. So that corresponds because 23 you've got about a 30-foot depth above the hypolimnion to 24 about 90,000 acre-feet. In order to maintain stratification 25 in Camanche at that level, you need to send cold water down 2744 01 from Pardee. So, you need to maintain stratification in 02 Pardee, and it takes about a hundred thousand acre-feet. 03 MR. JACKSON: It takes about a hundred thousand 04 acre-feet of cold water in Pardee to maintain the 20,000 05 acre-feet of cold water in Camanche necessary to have cool 06 enough flows in the river? 07 MR. GRACE: Could you put that in the form of a 08 question, and I'll answer you. 09 MR. JACKSON: Is it true -- 10 MR. GRACE: No, it is not true. 11 MR. JACKSON: It is not? 12 MR. GRACE: You need a total of a hundred thousand 13 acre-feet in Pardee. The cold water in Pardee is less than 14 a hundred thousand acre-feet. 15 MR. JACKSON: How much cold water in Pardee? 16 MR. GRACE: We are not really sure of that, but it is 17 on the order of probably a quarter of that, a quarter to a 18 half. 19 MR. JACKSON: Between 25 and 50,000 acre-feet in Pardee 20 in order to maintain the 20,000-acre hypolimnion in Camanche 21 until that turnover in November? 22 MR. GRACE: Yes. 23 MR. JACKSON: Now, I believe your testimony says that 24 you can -- if you release water from the hypolimnion in 25 Pardee, it will stay cold enough that when it enters 2745 01 Camanche that it will drop immediately into the hypolimnion 02 because of its difference in density? 03 MR. GRACE: Yes. It will slightly warm up. But 04 because it is colder, it goes into the hypolimnion. That is 05 the reason you want to maintain Camanche at a relatively low 06 level stratified and keep the cold water in Pardee. 07 Because if you move the water to Camanche and let the level 08 rise in Camanche during a dry year, half the water that is 09 -- on the order of half the water goes into the upper level 10 and warms up. 11 MR. JACKSON: So, it is better to keep Pardee high, 12 Camanche low and feed the hypolimnion water from Pardee into 13 Camanche in order to keep a cool water basis for the fish 14 below Camanche? 15 MR. GRACE: Yes. It is better to keep the water in 16 Pardee and to keep Camanche during a dry year at about a 17 level where it will not destratify, but you can keep feeding 18 cold water to it to keep it at that level. 19 MR. JACKSON: In a normal year, about what time of the 20 summer do you have to begin feeding water from the 21 hypolimnion in Pardee into the hypolimnion in Camanche? 22 MR. GRACE: In a normal year it is not much of an 23 issue because you have a lot of water. 24 MR. JACKSON: So, in a normal year you don't need to 25 worry about taking out the hypolimnion in Pardee, correct? 2746 01 MR. GRACE: If you've got a lot of water in the system, 02 yes. 03 MR. JACKSON: Did you do any calculations to see 04 whether or not you could restore the Pardee hypolimnion from 05 upstream? 06 MR. GRACE: No. I merely looked at the outcome from 07 East Bay MUD's SIM and applied the general rule that we 08 already discussed. 09 MR. JACKSON: Is there any reason why the general rule 10 would not apply to restoring the Pardee hypolimnion from 11 upstream in the summer? 12 MR. GRACE: You would have to look at the system, and I 13 haven't looked at the system. The reason it works from 14 Pardee to Camanche is Pardee's hypolimnion is colder than 15 Camanche's hypolimnion. There is only a small distance for 16 it to come from Pardee to Camanche, and so it doesn't warm 17 up very much. You would have to look at that, the distance 18 it has to come from PG&E and look at the temperatures up in 19 PG&E. Since Pardee is so-called, I don't know. I haven't 20 looked at it. 21 MR. JACKSON: Did you take a look at -- how far down 22 the river did you model the temperature below Camanche? 23 MR. GRACE: Didn't model the temperature. 24 MR. JACKSON: Do you have any idea where along the 25 Mokelumne River the temperature rises to the point that it 2747 01 would be unsuitable for the fishery? 02 MR. GRACE: It depends on the meteorology in a given 03 year and the time of the year. Sometimes it cools going 04 down the river; sometimes it warms up. 05 MR. JACKSON: Did you do those models? 06 MR. GRACE: No, I did not model. 07 MR. JACKSON: Did you look at any modeling of 08 temperature blow Woodbridge? 09 MR. GRACE: I did no temperature modeling of 10 anything. I looked at the output from EBMUD SIM and looked 11 at the effect of whether there was sufficient storage in 12 Pardee or Camanche to maintain stratification. 13 MR. JACKSON: I guess this could be a question to the 14 general panel. 15 Did anyone take a look at conditions below Woodbridge, 16 between Woodbridge and the Delta, for the purposes of this 17 agreement? 18 MR. GRACE: I didn't. 19 MR. JACKSON: Mr. Hanson? 20 DR. HANSON: Not for purposes of this agreement, no. 21 MR. JACKSON: Mr. Vogel? 22 MR. VOGEL: No. 23 MR. JACKSON: Mr. Skinner? 24 MR. SKINNER: No. The question is temperature 25 modeling? 2748 01 MR. JACKSON: Yes. 02 MR. SKINNER: No. 03 C.O. CAFFREY: Mr. Del Piero, I think, has a question 04 for clarification. 05 MEMBER DEL PIERO: East Bay MUD did not do any 06 temperature modeling as part of the agreement for Woodbridge 07 Diversion -- East Bay MUD did no temperature modeling for 08 the purposes of the agreement below Woodbridge Diversion 09 Dam? 10 MR. GRACE: My answer was for the purpose of my 11 testimony. I did not model the temperature. 12 MEMBER DEL PIERO: I understand. I am trying to get 13 clarification as to the answer to the question. 14 Did East Bay MUD, anybody, do temperature modeling for 15 the purposes of this agreement below Woodbridge Diversion 16 Dam? 17 MR. LAMPE: The District has done substantial 18 temperature modeling associated with the Joint Settlement 19 Agreement with California Department of Fish and Game and 20 the U.S. Fish and Wildlife Service. Those are, in fact, the 21 same flows that are a part of this Memorandum of 22 Understanding. 23 So my interpretation is the answer is, yes, we did do 24 modeling. It was associated with an agreement between the 25 U.S. Fish and Wildlife Service and California Department of 2749 01 Fish and Game, but for the same flows that we offer in this 02 proceeding. 03 MR. JACKSON: Is any of that data in your testimony in 04 regard to this hearing? 05 MR. LAMPE: By reference in terms of our references to 06 the Water Supply Management Program and the development of 07 the Lower Mokelumne River Management Plans; that data is 08 supportive, was developed as a part of that effort. 09 MR. JACKSON: Mr. Lampe, the question -- maybe I 10 phrased it incorrectly. Is any of the data that you have 11 done in regard to temperature below Woodbridge in the State 12 Board's hearing record for this agreement? 13 MR. LAMPE: I don't believe so. 14 MR. JACKSON: Why not, sir? 15 MR. LAMPE: Because we -- the settlement agreement or 16 this Memorandum of Understanding is related to the 17 settlement agreement with California Department of Fish and 18 Game and the U.S. Fish and Wildlife Service. Substantial 19 environmental documentation was done with respect to that 20 document by the Federal Energy Regulatory Commission. And 21 the basis of our negotiation relied upon the prior 22 documentation modeling that had been done. 23 So, as we bring this forward, that documentation is 24 history and is supportive of the flows that we are 25 proposing. It is not a part of the record in this 2750 01 proceeding. 02 MR. JACKSON: Mr. Lampe, when you set down to negotiate 03 with United States Fish and Wildlife Service and the 04 California Department of Fish and Game in the FERC 05 procedure, was it your understanding that the United States 06 Fish and Wildlife Service and the California Department of 07 Fish and Game were agreeing to these flows as your fair 08 share contribution to the Delta? 09 MR. LAMPE: No. Your question related to temperature 10 modeling associated with flows below Woodbridge. That is 11 what I answered. 12 MR. JACKSON: But it is true that the FERC -- there has 13 been no final FERC decision, has there? 14 MR. LAMPE: There has not. 15 MR. JACKSON: The agreement has Fish and Wildlife 16 Service and California Fish and Game specifically excluded 17 any consideration of the appropriate contribution from the 18 Mokelumne River to the Delta, did it not? 19 MR. LAMPE: That was a specific exclusion during our 20 negotiations; that is correct. 21 MR. JACKSON: Thank you, sir. 22 Mr. Grace, going back to the question of the 23 hypolimnion now in Camanche Reservoir, your testimony 24 indicates that -- I would draw your attention to Page 4, 25 Paragraph 2, the second to last sentence -- I guess the 2751 01 third to last. 02 This means that releases from Camanche will 03 be cool as long as Camanche is stratified. 04 However, it also means that if the Camanche 05 Reservoir hypolimnion is not supplemented 06 during summer and fall, it will be 07 progressively diminished by releases to the 08 Lower Mokelumne River. (Reading.) 09 Is there anything unusual about the Mokelumne River 10 system that -- isn't this a normal, progressive diminution 11 that happens every summer in every lake? 12 MR. GRACE: Yes. I was just putting this in so that 13 you could understand the background. Because my purpose of 14 this analysis was to compare alternatives, and I was looking 15 for a simple way to come up with the impact of flows on 16 temperature for the five alternatives that were before the 17 Board, the two East Bay MUD and the three Board 18 alternatives. So, there is nothing unique in that clause. 19 But when you put it all together, that is the way East Bay 20 MUD has learned how to operate this system to satisfy, to 21 the best it can, all the competing uses on this river. 22 MR. JACKSON: Camanche Reservoir -- is it fair to sort 23 of describe it as a trout lake with a bass lake sitting on 24 top of it? 25 MR. GRACE: It is outside of my area of expertise. 2752 01 C.O. CAFFREY: You don't have a fishing license, Mr. 02 Grace? 03 MR. JACKSON: Wouldn't the same situation be true at 04 Oroville? 05 MR. GRACE: What situation? 06 MR. JACKSON: The situation where you have hot water on 07 top, cold water on the bottom, and if you want to keep the 08 flows cold in the river you take it out of the bottom and 09 you try not to lose it during summer? 10 MR. GRACE: Of course. As I said in my testimony on 11 Page 2, Camanche and Pardee Reservoirs are typical of 12 moderately deep warm climate reservoirs. And the mere fact 13 that they stratify is a way in which cold water now can get 14 down; and in some ways, I guess, you could say the surprise 15 benefit is the fish. 16 MR. JACKSON: In some ways, I guess you could. 17 Now, if there is less flow on the Mokelumne River and 18 it is backstopped by Oroville, wouldn't we be depleting the 19 Oroville hypolimnion in order to protect the Camanche 20 hypolimnion? 21 MR. ETHERIDGE: I would object that that calls for 22 speculation as to what may or may not occur at Oroville. 23 MR. JACKSON: Well, we're speculating about the 24 backstop. I was wondering if that's the choice that we 25 took, wouldn't we be defeating one hypolimnion to protect 2753 01 another? 02 MR. GRACE: Not necessarily. It depends on the size of 03 the hypolimnion. If you're using deplete in a sense of take 04 water out of, then you are depleting the hypolimnion. But 05 if you are using it in the sense that you are taking so much 06 water out that you're endangering the stratification, you 07 would have to look at Oroville on its merits. 08 MR. JACKSON: You would also have to look at each of 09 the lakes on each of the rivers tributary to the Delta on 10 their merits, would you not? 11 MR. GRACE: Not to make a decision on what is being 12 asked here. 13 MR. JACKSON: I know. Isn't it important in 14 determining whether or not you can protect the hypolimnion 15 for late summer and early fall to know what you have in 16 storage that is cold above Pardee? 17 MR. GRACE: For the purpose of this analysis, we looked 18 at Pardee and Camanche. And the very analysis shows that if 19 you can't protect the storage, if you have less than 20 190,000, then you have endangered stratification and I have 21 compared that amongst the alternatives. I did not look at 22 trying to maintain stratification using upstream 23 reservoirs. 24 MR. JACKSON: Thank you very much for that answer. Why 25 didn't you look at maintaining stratification if it is so 2754 01 important? 02 MR. GRACE: Because I wasn't -- this was not a study of 03 maintaining stratification in Pardee and Camanche and how to 04 do it. I was merely analyzing and comparing the difference 05 on the storage in the system and, therefore, on the 06 temperature of the discharge from Camanche among the 07 alternatives. There was a very narrow analysis not to 08 maintain but to stratification, but to look at in which 09 years under each of the five different alternatives there 10 was insufficient water in the system, Pardee/Camanche, that 11 was potential for destratification. 12 MR. JACKSON: So, in other words, for the purpose of 13 your model, it was as if Pardee was the uppermost level of 14 the watershed? 15 MR. GRACE: Again, I was looking at the output from 16 East Bay MUD SIM. I am sure that East Bay MUD SIM considers 17 flows into the reservoir. So if you'd like to discuss East 18 Bay MUD SIM, you would have to ask Mr. Skinner. 19 MR. JACKSON: Thank you, sir. 20 Mr. Lampe, are you familiar with the term "hypolimnion"? 21 MR. LAMPE: I am, yes. 22 MR. JACKSON: Therefore, you are familiar with the term 23 "epilimnion"? 24 MR. LAMPE: I am. I am not a limnologist, but I am 25 familiar with those terms. 2755 01 MR. JACKSON: I am not either, but it's -- actually, 02 the Mokelumne River has made me very aware of those 03 terms. 04 There is no problem with the use of water in the East 05 Bay MUD service area that comes from he epilimnion, is 06 there? I mean, hot water doesn't matter? 07 MR. LAMPE: Actually, as I understand it, I am not an 08 operations specialist. But as I understand it, there, in 09 fact, can be problems; and that is why the outlet tower from 10 Pardee Reservoir, which is the initiation of the flow of 11 water to the East Bay Municipal Utility District, has 12 various levels at which water can be withdrawn. Those who 13 are expert in the determining what the impacts can be at 14 various levels make the decisions as to what level the water 15 is drawn. 16 MR. JACKSON: And who is that in the East Bay MUD 17 operations program? 18 MR. LAMPE: Currently, that would be Mr. Sikes, I 19 believe. 20 MR. JACKSON: Is there anyone here who can answer 21 questions in regards to the time in which it would be 22 inappropriate to take the drinking water from the epilimnion? 23 MR. ETHERIDGE: I would object as to the relevance of 24 this, the question on operations and diverting drinking 25 water from the outlet tower. 2756 01 MR. JACKSON: Certainly, Mr. Caffrey, if what we are 02 dealing with here is the flows below Camanche are going to 03 be determined by the condition of the epilimnion -- or the 04 hypolimnion in Camanche and Pardee, I would certainly be 05 interested in how many times for water supply reasons they 06 deplete that hypolimnion. 07 C.O. CAFFREY: I am going to allow the question, 08 although it wasn't clear that there is somebody here that 09 has an answer on this panel. 10 MR. LAMPE: I don't believe there is anyone here 11 capable of responding to that question. 12 MR. JACKSON: To your knowledge, has there been any 13 analysis done for this agreement as to whether or not there 14 are times in which water is taken from the hypolimnion and 15 sent through the Mokelumne River aqueduct? 16 MR. LAMPE: Mr. Skinner might have some answer. I am 17 unaware of any. 18 MR. SKINNER: I just don't know. There might have been 19 a topic of some of the modeling that was done in development 20 of the JSA, but I don't know. 21 MR. JACKSON: It's safe to say that you know enough 22 about the operation that you could tell me whether or not 23 there are any other outlets other than down the river and 24 through the aqueduct? 25 MR. LAMPE: There is an outlet to the JDID, right. 2757 01 MR. MYERS: Could you clarify the question? 02 MR. JACKSON: The question is: If the hypolimnion 03 leaves the lake, let's say Pardee, it either goes down the 04 river or it goes down the aqueduct. There is no other way 05 for the cold water to get out, is there? 06 MR. MYERS: I think you are correct, there is no other 07 way for cold water to get out. 08 MR. JACKSON: The irrigation districts that take water 09 out of Pardee take it from the top? 10 MR. MYERS: The only irrigation district that takes 11 water out of Pardee is the Jackson Valley Irrigation 12 District, and the lake has to be relatively high for that to 13 happen. 14 MR. JACKSON: So, they do not invade the hypolimnion in 15 any fashion with their diversion? 16 MR. MYERS: I would expect that to be correct. 17 MR. JACKSON: Dr. Hanson, you don't need to; it's going 18 to be real short. Did you do any work on the fishery below 19 Woodbridge, any analysis at all? 20 DR. HANSON: As part of the testimony submitted in this 21 proceeding, I did not. 22 MR. JACKSON: And there was no examination of fish 23 effects in the Lower Mokelumne River based upon whether the 24 cross channel gates were open or closed? 25 DR. HANSON: Not as part of this testimony. 2758 01 MR. JACKSON: Dr. Grace, I believe you said that there 02 was no examination of temperature based on whether the 03 cross channel gates were open or closed? 04 MR. GRACE: Not as part of this analysis. 05 MR. JACKSON: I take it that means you both have done 06 it, but it is not in this analysis? 07 DR. HANSON: I have done it. 08 MR. GRACE: I have not done it. 09 MR. JACKSON: Dr. Hanson, is there a difference in the 10 ability of Mokelumne River smolts and yearlings to escape 11 from the Lower Mokelumne River depending on whether the 12 cross channel gates are open or closed? 13 DR. HANSON: The operation of the Delta cross channel 14 influences the hydraulic characteristics internal to the 15 Delta. There is concern that those juvenile chinook salmon 16 smolts emigrating from the Mokelumne River may either be 17 disrupted in their migration or experience differential 18 migration cues as a result of that flow coming across the 19 Sacramento River through the Delta cross channel. 20 As part of the Delta Accord, however, the Delta cross 21 channel is closed throughout a majority of the period during 22 which salmon fry and salmon smolts would be emigrating from 23 the Mokelumne, that period being from February through 24 approximately the end of May or to mid June. 25 MR. JACKSON: Dr. Hanson, that was extremely well-done. 2759 01 How about the yearlings that emigrate in the fall? 02 DR. HANSON: The yearlings -- typically, over summer 03 in the Mokelumne River or more importantly in the terms of 04 the general production at today's level in the hatchery, 05 those fish are either emigrating or released into the 06 Mokelumne River typically in the fall, normally about the 07 end of October. 08 During that time period, the Delta cross channel under 09 today's operation would not be required to be closed, and, 10 therefore, the question of emigration cues and the influence 11 of Delta hydraulics on their emigration has been a 12 question. There have been some coded wire tag studies. 13 There has also been an attempt to radio tag some of those 14 yearling salmon to get a better sense for how they respond 15 to those Delta hydraulic conditions. The results of those 16 studies are either inconclusive or have not yet fully been 17 analyzed. 18 MR. JACKSON: They were not part of the consideration 19 of this testimony or this agreement? 20 DR. HANSON: They were not part of my testimony, no. 21 MR. JACKSON: Is there -- anyone can answer this, Mr. 22 Grace or Dr. Hanson. Is there any indication that there is 23 a temperature problem, high temperature problem, in the 24 Mokelumne River during the time that the yearlings are 25 attempting to out-migrate? 2760 01 DR. HANSON: There are certainly adverse temperature 02 conditions, particularly in the Lower Mokelumne River in the 03 Lake Lodi area and below Woodbridge, during that summer and 04 through the early portion of the fall. Those temperature 05 condition tend to be more favorable for salmon out-migration 06 as we move into the later fall and the wintertime period. 07 Typically, that late October/November time period 08 temperatures are much more suitable for out-migration, not 09 only from the Lower Mokelumne, but also further downstream 10 within the Delta. That may also be benefited through things 11 like removal of the Woodbridge Dam as well as storm events 12 and other activities. 13 MR. JACKSON: Did you examine below Woodbridge minimum 14 flows in the Joint Settlement Agreement? 15 DR. HANSON: In terms of looking at those, I was 16 involved in a number of the discussions and a number of the 17 analyses of fishery data collected as part of the 18 development of what was the LMR&P and ultimately evolved 19 into the Joint Settlement Agreement. They did include 20 consideration of temperature flow habitat conditions and 21 other factors downstream of Woodbridge Dam. 22 As part of this proceeding, we did look at the output 23 of the EBMUD SIM modeling for flows by month under each of 24 the different alternatives at two locations. One being the 25 release from the Camanche Dam. The second being the 2761 01 release, in essence, below Woodbridge Dam. 02 MR. JACKSON: And nowhere else? 03 DR. HANSON: I looked at just those two locations. 04 MR. JACKSON: If I were to tell you that the Joint 05 Settlement Agreement in critical and dry years allows flows 06 as low as 15 cubic feet per second in the Lower Mokelumne 07 River, would it surprise you that there were temperature 08 problems in a 15 cfs flow? 09 DR. HANSON: Well, yes and no. 10 MR. JACKSON: In the late summer and early fall? 11 DR. HANSON: In the late summer, those low flow 12 conditions that you describe below Woodbridge Dam would very 13 likely result in elevated temperature conditions below 14 Woodbridge. That time and that location, however, is not a 15 location where either yearling salmon or yearling steelhead 16 would be rearing. They would be much further upstream in 17 the river, closer to Camanche Dam. 18 So, it would not be a rearing habitat issue. There may 19 be occasions later in the late spring or the late 20 summer/early fall when some of those fish may potentially be 21 migrating downstream. They may experience those elevated 22 temperature conditions. How they would respond to those is 23 a matter of speculation. 24 MR. JACKSON: You described in your testimony rather 25 thoroughly a series of conditions that's necessary for fish. 2762 01 I believe you said it was unsuitable if it was above 16 C? 02 DR. HANSON: Those would be considered to be unsuitable 03 conditions, particularly for rearing. 04 MR. JACKSON: But for all life stages? 05 MR. HANSON: All life stages. 06 MR. JACKSON: Do you know if release 16 C water at 07 Camanche, does anybody know how far that stays suitable down 08 the river? 09 MR. NUZUM: 16 degree release at Camanche Dam would 10 give you 18 plus or minus a fraction at Woodbridge and 21 at 11 Frandy, which is in the Delta. 12 MR. JACKSON: Thank you, Mr. Nuzum. 13 Mr. Nuzum, I now have some questions for you. 14 You run the recreational program for the Mokelumne 15 system? 16 MR. NUZUM: I do. 17 MR. JACKSON: How important is Pardee and Camanche to 18 the counties in which they are located in terms of 19 recreational economics? 20 MR. NUZUM: I could give you my perspective on that. 21 MR. JACKSON: That is what I am asking for, sir, is 22 your perspective. 23 MR. NUZUM: We provide about 500,000 visitor days, and 24 we provide a possessory interest revenue base to Amador and 25 Calaveras Counties. And in discussions with those counties 2763 01 over the years and with people that live in those counties 02 that recreate at Pardee and Camanche, I think the facilities 03 are very important. 04 MR. JACKSON: They are more important or more 05 financially important to the area around Pardee and Camanche 06 if they are higher, basically, than if they are lower, are 07 they not? The lake level is higher rather than lower. 08 MR. NUZUM: Yes, I think that is true. In addition, 09 the aesthetics would be greater. 10 MR. JACKSON: Thank you. I have no further questions. 11 C.O. CAFFREY: Thank you, Mr. Jackson. 12 Mr. Brandt. Afternoon, sir. 13 Let me ask a couple questions here, if I may, Mr. 14 Brandt and Mr. Etheridge. 15 Mr. Etheridge, I know you have been diligently taking 16 notes throughout the cross-examination. I presume that 17 portends for redirect. 18 Am I correct? 19 MR. ETHERIDGE: Yes, I believe we will have some 20 redirect. I can't tell at this time how much. 21 C.O. CAFFREY: In that event, I am trying to figure 22 out. We like to finish up around four. 23 Do you know how much time you are going to need, Mr. 24 Brandt? 25 MR. BRANDT: I think I should be done by four. 2764 01 C.O. CAFFREY: If you don't, we will see how much more 02 time you need or we can come back and finish tomorrow. I 03 just want to determine that there is little chance that we 04 would finish with even the cross-examination, let alone this 05 panel today. So the panel will have to come back tomorrow. 06 MR. ETHERIDGE: I believe, also, if my notes are 07 correct, after Mr. Brandt speaks or cross-examines the 08 panel, Mr. Nomellini. 09 C.O. CAFFREY: That is correct. I didn't mean to imply 10 that Mr. Brandt was the very last one. We never forget Mr. 11 Nomellini. 12 MR. NOMELLINI: I've been quiet all day. 13 C.O. CAFFREY: It's got me worried. So, we'll -- let's 14 see where you are around 4:00, Mr. Brandt. We will see if 15 you just need a few more minutes after that, we can just go 16 one. Otherwise we will continue with you tomorrow. 17 MR. BRANDT: That is fine. Thank you. 18 C.O. CAFFREY: Please proceed, sir. 19 ---oOo--- 20 CROSS-EXAMINATION OF EAST BAY MUNICIPAL UTILITY DISTRICT 21 BY DEPARTMENT OF THE INTERIOR 22 BY MR. BRANDT 23 MR. BRANDT: Mr. Nuzum, in your testimony in Exhibit 8 24 you make the comment that Alternatives 3, 4, 5 would 25 generate no identified measurable Delta benefit. I just 2765 01 want to make sure I understand what you base that conclusion 02 on. 03 If I understand it correctly, it is just based on the 04 straight numbers and the percentages of how much Mokelumne 05 can contribute, and then there is some comments from a FERC 06 determination, things like that. 07 That is all you have really made that conclusion on, 08 based on, correct? 09 MR. NUZUM: The only thing in addition to that would be 10 the comments that are included in the draft environmental 11 document. 12 MR. BRANDT: What comments would those be? 13 MR. NUZUM: There are comments in the draft document 14 about the alternatives being very similar in their 15 benefits. 16 MR. BRANDT: We are talking about the Draft EIR that 17 the State Board provided? 18 MR. NUZUM: That's right. 19 MR. BRANDT: I look at your education, you're not a 20 hydrologist; is that correct? 21 MR. NUZUM: I am not. 22 MR. BRANDT: You make some comments in here, and I 23 believe you've made some earlier comments today about the 24 impact of Mokelumne River water on X2 and other standards in 25 the 1995 WQCP; is that correct? 2766 01 MR. NUZUM: Would you restate the question? 02 MR. BRANDT: In your earlier testimony did you make 03 some comments about the Mokelumne River water having little 04 impact on the WQCP standards, including X2 and other flow 05 standards? 06 MR. NUZUM: Yes, I did. 07 MR. BRANDT: What did you base those conclusions on? 08 Is there anything else besides what you just identified? 09 MR. NUZUM: The comment that I made in my testimony 10 about the water quality standard sampling stations at 11 Vernalis and Rio Vista were simply my understanding of the 12 way the Delta works in relation to the Lower Mokelumne River 13 and its flows. 14 The comments that may have been made about anything 15 regarding X2 would be based upon my experience with, again, 16 work that we have done in the past or work that other 17 consultants have done regarding Mokelumne River flows and 18 their affect on the X2 standard. 19 MR. BRANDT: None of that consultant work is in this 20 record at all; is that correct? 21 MR. NUZUM: It is not in this record; that's correct. 22 MR. BRANDT: You also talk about a Fish and Wildlife 23 Service study that you thought suggested that there was no 24 link or very small link between X2 and Mokelumne River 25 water; is that correct? 2767 01 MR. NUZUM: Yes. There was a study that was done by a 02 consultant to the United States Fish and Wildlife Service on 03 the Mokelumne River contribution from the settlement 04 agreement flows on X2. 05 MR. BRANDT: Can you tell me which study you are 06 referring to? 07 MR. NUZUM: I think that would really be a question for 08 the U.S. Fish and Wildlife Service to answer. 09 MR. BRANDT: I am just trying to get what you're basing 10 your conclusions on. If you are basing it on somehow that 11 there is some Fish and Wildlife study, I just want to know 12 which one you think you know about. 13 MR. NUZUM: U.S. Fish and Wildlife Service contracted 14 with Betty Andrews to do a hydrologic review of settlement 15 agreement flows on X2. We have the result of that study and 16 that is what the analysis indicated. In addition, the 17 biological opinion was in part based upon the hydrologic 18 review by Betty Andrews. But, again, I think the question 19 is better answered by the U.S. Fish and Wildlife Service. 20 MR. BRANDT: I certainly will do that. I just wanted 21 to make sure I was clear on what you based your conclusion 22 on. Thank you. 23 Let me draw your attention to Page 9 of your 24 testimony. You note: 25 A FERC determination that because of the 2768 01 Accord additional freshwater inflows would 02 further minimize the effects of Mokelumne 03 River flows on the location of two parts per 04 thousand isohaline under any alternative. 05 (Reading.) 06 Are you aware of what the Accord is? 07 MR. NUZUM: I am. 08 MR. BRANDT: Does the Accord go on for the same term or 09 similar term as the proposed flows under the agreement that 10 East Bay MUD is proposing? 11 MR. NUZUM: I don't know the answer to that. 12 MR. BRANDT: Do you know when the Accord terminates? 13 MR. NUZUM: I do not. 14 MR. BRANDT: Can you give me any understanding of why 15 you would reference the Accord having -- reducing impact of 16 the Mokelumne if the Accord is not the same term as the -- 17 same length of term as the Mokelumne River MOU that you are 18 proposing? 19 MR. NUZUM: This testimony was prepared for this 20 particular hearing and for now. The fact that there may be 21 a different term for where the two part per thousand 22 isohaline is or isn't in the future, I can't speak to that. 23 I don't know that very many of us could. 24 I can just point out what the assessment was by FERC 25 recently about the ability of the Mokelumne River flows 2769 01 within the settlement agreement to affect a two part per 02 thousand isohaline. 03 MR. BRANDT: So, if the Accord ends, then the Mokelumne 04 River agreement and MOU becomes that much more important and 05 -- Strike that. 06 Then when the Accord ends, the flows from the Mokelumne 07 River become more important than when the Accord is in 08 operation, correct? 09 MR. ETHERIDGE: I would object to that question. Calls 10 for speculation on what happens when the Accord ends and 11 what the situation is at that time. 12 C.O. CAFFREY: Restate the question. 13 MR. BRANDT: I will state it to try and deal with that 14 concern. 15 In your testimony it makes the comment that the 16 additional freshwater flows, presumably from the Accord, 17 would further minimize the effects of Mokelumne River flows. 18 So I am asking you to -- when and if the Accord ends at some 19 point, then that Mokelumne River flows would no longer be 20 minimized, correct? The importance of the Mokelumne River 21 flows will no longer be minimized, correct? 22 MR. NUZUM: I am not sure that that is correct. 23 MR. BRANDT: What do you base that conclusion on? 24 MR. NUZUM: I think the point of my testimony is the 25 very small contribution that would be provided by the 2770 01 Mokelumne River. Even if unimpaired flows of 702,000 02 acre-feet were provided, the ability of the Mokelumne to 03 affect a two part per thousand isohaline is almost 04 negligible. 05 So, if the Accord exists or the Accord does not exist, 06 I don't think it would have much affect on what East Bay 07 MUD, including all of the unimpaired flows in the Mokelumne 08 River would have on the two part per thousand isohaline. 09 That is the point of these discussion points. 10 MR. BRANDT: On Page 10 of your testimony you 11 mentioned that the flows proposed in the East Bay MUD or 12 Mokelumne River MOU would provide additional flows. When 13 you use "additional flows," that is additional to what? 14 MR. NUZUM: In addition to the baseline flows from the 15 1961 agreement between East Bay MUD and California 16 Department of Fish and Game. 17 MR. BRANDT: So, it is additional flows over agreement, 18 I guess, almost 40 years old, right? 19 MR. NUZUM: Well, I don't know that that is a proper 20 characterization of an agreement 40 years old. It was 21 initially developed in 1961 prior to Camanche Dam. It has 22 been amended several times in and through the '70s, and it 23 is the baseline agreement that we operate to today. 24 MEMBER DEL PIERO: Could you say it was signed when I 25 was in first grade? 2771 01 MR. BRANDT: Never mind, I am not going to go there. 02 Anyway, let's move on. 03 C.O. CAFFREY: Mr. Brandt, excuse me. 04 Mr. Brown. 05 MEMBER BROWN: Maybe my notes are wrong, but I thought 06 I took some notes earlier this morning that it is actually a 07 lesser flow, but more flow in the critically dry periods; is 08 that correct? 09 MR. NUZUM: Well, I heard the same thing that you did 10 earlier. 11 MEMBER BROWN: I wonder which one is correct. I just 12 heard you say, if I heard right, that it generates a greater 13 flow than the 1961 agreement, and I heard this morning that 14 it was a lesser flow, at least long-term average. 15 Which one is right? 16 C.O. CAFFREY: Anybody have an answer? 17 MR. NUZUM: If you will hold on just one second, we 18 will provide that. 19 MR. LAMPE: To clarify, I think what may be the 20 confusion here, the joint settlement flows, holding 21 everything else even, like 1995 conditions, will always 22 result in increased flows to the Delta, particularly in dry 23 years. 24 I think some of the discussion this morning, including 25 CCWD Exhibit 6, as I recall -- 2772 01 MEMBER BROWN: This one right here. 02 MR. LAMPE: Is that this one? 03 The variable there was looking at future conditions 04 where senior water rights holders might be taking more water 05 from the river. In those situations -- 06 MEMBER BROWN: I don't think so. See the figure -- 07 MR. LAMPE: I am not tracking here. 08 MEMBER BROWN: The figure being proposed here, the 09 long-term average was 291,448. What is being proposed, 10 257,117. 11 C.O. CAFFREY: Mr. Brown is referring to one of the 12 pages from the various appendices alphanumerically 13 designated where Mr. Maddow took great pains to identify 14 them individually because the pages weren't numbered. 15 MEMBER BROWN: Thank you, Mr. Chairman. 16 C.O. CAFFREY: So that is the document. Do you want to 17 show it to the witness, Mr. Brown? Please do, sir. 18 Mr. Lampe, do you have the document? 19 MR. LAMPE: I now have the document that Mr. Brown was 20 referring to. 21 C.O. CAFFREY: Do you have a way of describing that 22 particular document, other than the way I did that would be 23 helpful? There was a number identified at the time. 24 MR. LAMPE: This one is enumerated in the top 25 left-hand corner, 9722210-6083-CDFG. 2773 01 MR. SKINNER: I think the confusion here can be 02 clarified by looking at Contra Costa's summary, Contra Costa 03 Exhibit 6. The number that you are quoting from this table 04 is shown, the 291,448 on an average annual basis of inflow 05 to the Delta at 1995 levels under the '61 agreement. For 06 the same level of development under the JSA, that number 07 becomes 298,000 acre-feet. 08 MEMBER BROWN: What is the 254 [verbatim]? 09 MR. SKINNER: The 257, that is at 2020 levels of 10 development under the JSA. The primary effect that is 11 occurring there is growth and demand in Amador, Calaveras, 12 San Joaquin and in East Bay MUD's service area. 13 C.O. CAFFREY: WE are on our time here, Mr. Brandt. 14 MR. SKINNER: What is not shown, there is no analysis 15 of future conditions under the 1961 agreement. But if that 16 analysis were here, the average annual amount for that 17 analysis would probably be less than the 257 or the 275. 18 But I don't really know without having -- 19 MEMBER BROWN: So, the answer to the question is that 20 the agreement will provide more water? 21 MR. SKINNER: Particularly in dry years. 22 MR. NUZUM: Yes. 23 MEMBER BROWN: Thank you, Mr. Chairman. 24 C.O. CAFFREY: Thank you, Mr. Brown, for a clarifying 25 question. 2774 01 Mr. Brandt, you may continue, sir. 02 MR. BRANDT: Let's move to Dr. Hanson. 03 Dr. Hanson, just want to clarify, the fish you looked 04 at were which ones? 05 DR. HANSON: They were fall-run chinook salmon and 06 steelhead. 07 MR. BRANDT: In the Lower Mokelumne? 08 DR. HANSON: Correct. 09 MR. BRANDT: In what part of the Lower Mokelumne? 10 DR. HANSON: Primarily within the area of the Lower 11 Mokelumne River used as spawning and juvenile rearing 12 habitat, extending from Camanche Dam downstream just 13 upstream of Lake Lodi. I was trying to get a mileage on 14 that. 15 MR. BRANDT: How many miles is that? 16 DR. HANSON: We didn't finish. We got to 29 miles to 17 Tidewater. 18 About 21 miles. 19 MR. BRANDT: Are those -- is that segment, is some part 20 of it within the legal Delta? 21 DR. HANSON: No. 22 MR. BRANDT: So, all of it is outside of the Delta? 23 DR. HANSON: Yes. 24 MR. BRANDT: Did you look at any other fishery 25 resources within the Delta? 2775 01 DR. HANSON: As part of the testimony I submitted in 02 this proceeding, I did not. 03 MR. BRANDT: Your conclusions just relate to the Lower 04 Mokelumne outside the Delta? 05 DR. HANSON: The affects of temperature on salmon 06 rearing and steelhead rearing conditions within that reach 07 of the Mokelumne River. 08 MR. BRANDT: Did you look at any other effects besides 09 temperature in that area on the survival of those two 10 species in the Lower Mokelumne? Did you look at any other 11 factors? 12 DR. HANSON: In my earlier analyses I looked at the 13 actual flows as they affect physical habitat, in essence, 14 in-stream flow type analysis. And what I found through that 15 analysis was that there certainly are differences in habitat 16 conditions among the alternatives. In some cases, for 17 example, in the State Board alternatives, there are higher 18 flows that occur during the spring. But there are lower 19 flows that occur further in the fall during the spawning 20 period. There were trade-offs and there were 21 inconsistencies in terms of patterns among the alternatives. 22 So I did not conclude that there was a major or 23 significant difference in habitat conditions purely as a 24 function of flow. 25 MR. BRANDT: This is habitat conditions all outside the 2776 01 Delta? 02 DR. HANSON: This is all upstream of the legal Delta 03 within that reach that we earlier described. 04 MR. BRANDT: Are you aware of fish needs for variation 05 inflow temporal, over time? 06 DR. HANSON: Yes. 07 MR. BRANDT: During the year? 08 Do the proposed flows in the Mokelumne MOU provide for 09 that kind of variation? 10 DR. HANSON: They do have a seasonal variation 11 component with the flows primarily being the greatest during 12 that spring period of out-migration, as well as the ones the 13 Delta needs. 14 MR. BRANDT: Can you tell me what, give me a range of 15 what would be an ideal variation, as far as cfs goes? 16 DR. HANSON: In terms of magnitude? 17 MR. BRANDT: In terms of magnitude of deference in 18 variation. 19 DR. HANSON: Not without actually looking up those 20 analyses. 21 MR. BRANDT: Can you give me an idea of what the 22 variation would be under the Mokelumne MOU? 23 DR. HANSON: I believe that is summarized in one of the 24 exhibits. Would you like me to look? 25 MR. BRANDT: Yes. If you could identify that one for 2777 01 me. 02 Actually leave that question open for any member. Can 03 you tell me the variation? 04 DR. HANSON: Mr. Skinner has provided a summary table, 05 Table 5, which is on Page 25 of EBMUD Exhibit 4, which 06 provides a tabular summary by month by water year type of 07 minimum Camanche releases under the Joint Settlement 08 Agreement and the expected flow below Woodbridge. And so we 09 could go by year type or by month, whichever your 10 preference. 11 MR. BRANDT: Could we go by year type? Let's focus on 12 the critical years, the critical and dry years. 13 DR. HANSON: The minimum Camanche release under the 14 Joint Settlement Agreement as described in Table 5 for a dry 15 year in October is 220 cfs. November, December, January, 16 February, March, April and May are all 220 cfs. June, July, 17 August and September are 100 cfs. 18 MR. BRANDT: Basically, variations between a hundred 19 and 220, and that is below Camanche, correct? 20 DR. HANSON: This is the minimum flow release from 21 Camanche. 22 MR. BRANDT: Can you tell me, then, what does that do 23 in dry and critical years for expected flow below WID? WID 24 is Woodbridge Irrigation District. 25 DR. HANSON: In terms of the summary on Table 5, under 2778 01 dry year conditions, expected flows below Woodbridge 02 Irrigation Dam are 80 cfs from October through March, 150 03 cfs in April and May and 20 cfs in June through September. 04 These are the minimum flows that are included in the 05 agreement. The flows that I, at least, actually looked at 06 in terms of the earlier analyses that we discussed were the 07 combined flows for all purposes. So, they were the 08 simulated releases by month at different locations. Not 09 only in response to the minimum flows in the table, but also 10 in response to all other downstream water needs. The fish 11 benefit from whatever purpose that water is released, and 12 that seemed to be the most appropriate measure for examining 13 flows in the analysis I presented. 14 MR. BRANDT: Do you have any idea what the traditional 15 unimpaired flow would be at Pardee over time? 16 DR. HANSON: I have seen figures in the past, but I 17 don't recall what they are. 18 MR. BRANDT: Do you have any idea of the range, any 19 sense? 20 DR. HANSON: Not a good sense, no. 21 MR. BRANDT: You discussed the survival of salmon in 22 the Mokelumne River and particularly what they do when it is 23 hotter. Is this -- are the studies that you cite, 24 particularly the ones where you are citing in Oregon, are 25 they -- can they be compared to streams in Oregon and 2779 01 streams in the northwest with streams in the Mokelumne for 02 survival? 03 DR. HANSON: There is certainly some concern about 04 comparing results of studies along gradients. And one of 05 the concerns that we have had in the past is that many of 06 the studies from which we draw this information have been 07 conducted in laboratories or under stream conditions 08 primarily in the colder water Pacific Northwest streams, 09 British Columbia, Oregon, Washington and southern Alaska. 10 There are hypotheses that juvenile salmon or salmon 11 stocks that have evolved under those kinds of water 12 temperature and climatic conditions may have a different 13 sensitivity or tolerance to elevated temperatures than would 14 those fishing further in the southern portion of their 15 geographic distribution. So, a stock in the southern 16 portion, for example in the Mokelumne River, potentially may 17 have a greater thermal tolerance than would a fish from a 18 more northerly stock. That is a hypothesis at this point. 19 It has not really been tested or validated, but it has 20 certainly been shown for other physiological responses. 21 MR. BRANDT: In years when there is warmer 22 temperatures, in particularly dry years, what do the salmon 23 do? Do they react differently than in wetter years? Do 24 they just get out of river, basically? 25 DR. HANSON: The data that we have is difficult to 2780 01 interpret in terms of how they actually react on an 02 individual fish in a behavioral response. There are a 03 number of response patterns that we have seen. For example, 04 under higher flow conditions, frequently one of the 05 observations is that many more of the juvenile salmon 06 emigrate earlier in the season. They emigrate as fry as 07 opposed to retaining or maintaining themselves in the 08 rearing habitat for a longer period of time. 09 Fish, juvenile chinook salmon, for example, do respond 10 to increasing temperature on a seasonal basis as one of the 11 many cues that they use for emigration. So there are 12 hypotheses about the use of those temperature responses as a 13 cue to trigger salmon movement downstream to emigrate from a 14 rearing habitat that may ultimately be unsuitable. 15 There are also concerns above problems where 16 temperatures in the upper portion of a rearing habitat may 17 be cool, and hence the salmon may sense or respond to those 18 as being suitable while temperatures further downstream 19 become elevated and adverse. Whether the fish actually 20 emigrate through those adverse temperatures and experience 21 physiological stress or potentially mortality, which has 22 been seen on some rivers, or whether they behaviorally 23 respond and remain in the rearing habitat for a longer 24 period of time, over summer and emigrate the next fall, are 25 all some of the plastic kinds of behavioral responses that 2781 01 fish have. 02 MR. BRANDT: So, then, to a significant degree, salmon 03 are adapting to different temperature levels all the time, 04 on a regular basis, correct? 05 DR. HANSON: The majority of organisms adapt to their 06 environmental conditions within ranges of tolerance. The 07 key issue is whether or not we can retain those key ranges 08 of tolerance to provide them that opportunity. 09 MR. BRANDT: Let's move on to Mr. Lampe. 10 Mr. Lampe, as I understand it, the underlying agreement 11 -- let me make sure I get our terms right. You call it the 12 JSA? 13 MR. LAMPE: Joint Settlement Agreement. 14 MR. BRANDT: That is the agreement with Fish and 15 Wildlife Service and you call the MOU is what you are 16 presenting to the Board? 17 MR. LAMPE: Memorandum of Understanding, yes. 18 MR. BRANDT: Just want to make sure I get the terms 19 right here as I go back and forth on these. 20 Can you tell me, the JSA has not been submitted by East 21 Bay MUD to the this Board, correct? 22 MR. LAMPE: No. 23 C.O. STUBCHAER: Was the answer to that question, no, 24 it has not, correct or, no, it has not been submitted to the 25 Board? 2782 01 MR. LAMPE: No, it has not been submitted to the Board. 02 It has been submitted to the Federal Energy Regulatory 03 Commission. And the flows in the agreement are, in fact, 04 the substance of what is submitted to the Board in this 05 proceeding, are the flows that are submitted to the -- 06 MR. BRANDT: Thank you, Mr. Stubchaer. Appreciate the 07 record clean up. 08 Are you aware of a gain sharing provision in the JSA? 09 MR. LAMPE: Yes. 10 MR. BRANDT: Can you tell me what your understanding of 11 a gain sharing provision is. 12 MR. LAMPE: The gain sharing provision provides that, 13 as the District is able to develop additional supplemental 14 water supplies to those currently available, 20 percent of 15 those additional supplies developed, up to a maximum of 16 20,000 acre-feet, would be made available for additional 17 fishery releases during dry year periods. 18 MR. BRANDT: That has not been submitted to this Board, 19 correct? 20 MR. LAMPE: The answer is no. 21 MR. BRANDT: One thing I want to clarify on that, when 22 you say "new water supplies" -- 23 MR. LAMPE: Correct. 24 MR. BRANDT: -- how do you consider the -- getting any 25 water, actually taking water from the Bureau of Reclamation? 2783 01 Would you consider any of that new water supplies? 02 MR. LAMPE: The definition in the Joint Settlement 03 Agreement is reasonably precise in that regard. I don't 04 have that available to me, perhaps you do. 05 MR. BRANDT: Funny you should ask, I happen to have the 06 gain sharing provision here. If you could point out what 07 provision is that specific. 08 MR. MADDOW: Mr. Chairman, I would pose an objection. 09 Could we have an opportunity to examine the document that 10 Mr. Brandt is talking about? 11 C.O. CAFFREY: In fact I was just asking Mr. Del Piero. 12 I was confused as to what the document is. 13 MR. MADDOW: Three or four of the attorneys who have 14 cross-examined Mr. Lampe so far have asked these -- the same 15 line of questions about this Joint Settlement Agreement. 16 Now, it suddenly it appears. We would very much like to 17 have an opportunity to look at it. 18 MR. BIRMINGHAM: Mr. Chairman. 19 C.O. CAFFREY: Mr. Birmingham. 20 MR. BIRMINGHAM: I was going to suggest that if Mr. 21 Brandt is going to examine the witness on the document, that 22 the document be marked for purposes of identification and 23 then the parties be given a copy of the agreement. 24 MR. MADDOW: I concur in that statement. 25 C.O. CAFFREY: Maybe we could -- 2784 01 Since it is almost five minutes after four, maybe that 02 is a good note upon which to end the day. Get copies of 03 that for everybody and then proceed in the morning. 04 Does that make any sense? 05 MR. BRANDT: That makes great sense. 06 C.O. CAFFREY: We can mark it and proceed tomorrow. 07 Finish your cross-examination and go to Mr. Nomellini and 08 then to redirect. 09 We will see you all back here tomorrow morning at 9:00 10 a.m. 11 Thank you very much. 12 (Hearing adjourned at 4:05 p.m.) 13 ---oOo--- 14 15 16 17 18 19 20 21 22 23 24 25 2785 01 REPORTER'S CERTIFICATE 02 03 04 STATE OF CALIFORNIA ) 04 ) ss. 05 COUNTY OF SACRAMENTO ) 05 06 06 07 08 I, ESTHER F. WIATRE, certify that I was the 09 official Court Reporter for the proceedings named herein, 10 and that as such reporter, I reported in verbatim shorthand 11 writing those proceedings; 12 That I thereafter caused my shorthand writing to be 13 reduced to typewriting, and the pages numbered 2588 through 14 2784 herein constitute a complete, true and correct record 15 of the proceedings. 16 17 IN WITNESS WHEREOF, I have subscribed this certificate 18 at Sacramento, California, on this 28th day of August 1998. 19 20 21 22 22 23 ______________________________ 23 ESTHER F. WIATRE 24 CSR NO. 1564 24 25