STATE WATER RESOURCES CONTROL BOARD PUBLIC HEARING 1998 BAY-DELTA WATER RIGHTS HEARING HELD AT THE BONDERSON BUILDING 901 P STREET SACRAMENTO, CALIFORNIA WEDNESDAY, AUGUST 19, 1998 9:00 A.M. Reported by: MARY GALLAGHER, CSR #10749 CAPITOL REPORTERS (916) 923-5447 1 APPEARANCES ---oOo--- 2 3 BOARD MEMBERS: 4 JOHN CAFFREY, CO-HEARING OFFICER JAMES STUBCHAER, CO-HEARING OFFICER 5 MARC DEL PIERO MARY JANE FORSTER 6 JOHN W. BROWN 7 STAFF MEMBERS: 8 THOMAS HOWARD - Supervising Engineer 9 VICTORIA A. WHITNEY - Senior Engineer 10 COUNSEL: 11 WILLIAM R. ATTWATER - Chief Counsel 12 WALTER PETTIT - Executive Director BARBARA LEIDIGH - Senior Staff Counsel 13 14 ---oOo--- 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 2787 1 REPRESENTATIVES 2 PRINCETON CODORA GLENN IRRIGATION DISTRICT, et al. 3 FROST, DRUP & ATLAS 4 134 West Sycamore STreet Willows, California 95988 5 BY: J. MARK ATLAS, ESQ. 6 JOINT WATER DISTRICTS: 7 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 8 Oroville, California 95965 BY: WILLIAM H. BABER, III, ESQ. 9 CALIFORNIA SPORTFISHING PROTECTION ALLIANCE: 10 ROBERT J. BAIOCCHI 11 P.O. Box 357 Quincy, California 95971 12 BELLA VISTA WATER DISTRICT: 13 BRUCE L. BELTON, ESQ. 14 2525 Park Marina Drive, Suite 102 Redding, California 96001 15 WESTLANDS WATER DISTRICT: 16 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 17 400 Capitol Mall, 27th Floor Sacramento, California 95814 18 BY: THOMAS W. BIRMINGHAM, ESQ. and 19 AMELIA THOMAS, ESQ. 20 THE BAY INSTITUTE OF SAN FRANCISCO: 21 GRAY BOBKER 55 Shaver Street, Suite 330 22 San Rafael, California 94901 23 CITY OF ANTIOCH, et al.: 24 FREDERICK BOLD, JR., ESQ. 1201 California Street, Suite 1303 25 San Francisco, California 94109 CAPITOL REPORTERS (916) 923-5447 2788 1 REPRESENTATIVES 2 LEAGUE OF WOMEN VOTERS: 3 ROBERTA BORGONOVO 4 2480 Union Street San Francisco, California 94123 5 UNITED STATES DEPARTMENT OF THE INTERIOR: 6 OFFICE OF THE SOLICITOR 7 2800 Cottage Way, Roon E1712 Sacramento, California 95825 8 BY: ALF W. BRANDT, ESQ. 9 CALIFORNIA URBAN WATER AGENCIES: 10 BYRON M. BUCK 455 Capitol Mall, Suite 705 11 Sacramento, California 95814 12 RANCHO MURIETA COMMUNITY SERVICES DISTRICT: 13 MCDONOUGH, HOLLAND & ALLEN 555 Capitol Mall, 9th Floor 14 Sacramento, California 95814 BY: VIRGINIA A. CAHILL, ESQ. 15 CALIFORNIA DEPARTMENT OF FISH AND GAME: 16 OFFICE OF THE ATTORNEY GENERAL 17 1300 I Street, Suite 1101 Sacramento, California 95814 18 BY: MATTHEW CAMPBELL, ESQ. 19 NATURAL RESOURCES DEFENSE COUNCIL: 20 HAMILTON CANDEE, ESQ. 71 Stevenson Street 21 San Francisco, California 94105 22 ARVIN-EDISON WATER STORAGE DISTRICT, et al.: 23 DOOLEY HERR & WILLIAMS 3500 West Mineral King Avenue, Suite C 24 Visalia, California 93191 BY: DANIEL M. DOOLEY, ESQ. 25 CAPITOL REPORTERS (916) 923-5447 2789 1 REPRESENTATIVES 2 SACRAMENTO MUNICIPAL UTILITY DISTRICT: 3 LESLIE A. DUNSWORTH, ESQ. 4 6201 S Street Sacramento, California 95817 5 SOUTH SAN JOAQUIN IRRIGATION DISTRICT, et al.: 6 BRAY, GEIGER, RUDQUIST & NUSS 7 311 East Main Street, 4th Floor Stockton, California 95202 8 BY: STEVEN P. EMRICK, ESQ. 9 EAST BAY MUNICIPAL UTILITY DISTRICT: 10 EBMUD OFFICE OF GENERAL COUNSEL 375 Eleventh Street 11 Oakland, California 94623 BY: FRED ETHERIDGE, ESQ. 12 GOLDEN GATE AUDUBON SOCIETY: 13 ARTHUR FEINSTEIN 14 2530 San Pablo Avenue, Suite G Berkeley, California 94702 15 CONAWAY CONSERVANCY GROUP: 16 UREMOVIC & FELGER 17 P.O. Box 5654 Fresno, California 93755 18 BY: WARREN P. FELGER, ESQ. 19 THOMES CREEK WATER ASSOCIATION: 20 THOMES CREEK WATERSHED ASSOCIATION P.O. Box 2365 21 Flournoy, California 96029 BY: LOIS FLYNNE 22 COURT APPOINTED REPS OF WESTLANDS WD AREA 1, et al.: 23 LAW OFFICES OF SMILAND & KHACHIGIAN 24 601 West Fifth Street, Seventh Floor Los Angeles, California 90075 25 BY: CHRISTOPHER G. FOSTER, ESQ. CAPITOL REPORTERS (916) 923-5447 2790 1 REPRESENTATIVES 2 CITY AND COUNTY OF SAN FRANCISCO: 3 OFFICE OF THE CITY ATTORNEY 4 1390 Market Street, Sixth Floor San Francisco, California 94102 5 BY: DONN W. FURMAN, ESQ. 6 CAMP FAR WEST IRRIGATION DISTRICT, et al.: 7 DANIEL F. GALLERY, ESQ. 926 J Street, Suite 505 8 Sacramento, California 95814 9 BOSTON RANCH COMPANY, et al.: 10 J.B. BOSWELL COMPANY 101 West Walnut Street 11 Pasadena, California 91103 BY: EDWARD G. GIERMANN 12 SAN JOAQUIN RIVER GROUP AUTHORITY, et al.: 13 GRIFFIN, MASUDA & GODWIN 14 517 East Olive Street Turlock, California 95381 15 BY: ARTHUR F. GODWIN, ESQ. 16 NORTHERN CALIFORNIA WATER ASSOCIATION: 17 RICHARD GOLB 455 Capitol Mall, Suite 335 18 Sacramento, California 95814 19 PLACER COUNTY WATER AGENCY, et al.: 20 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 400 Capitol Mall, 27th Floor 21 Sacramento, California 95814 BY: JANET GOLDSMITH, ESQ. 22 ENVIRONMENTAL DEFENSE FUND: 23 THOMAS J. GRAFF, ESQ. 24 5655 College Avenue, Suite 304 Oakland, California 94618 25 CAPITOL REPORTERS (916) 923-5447 2791 1 REPRESENTATIVES 2 CALAVERAS COUNTY WATER DISTRICT: 3 SIMON GRANVILLE 4 P.O. Box 846 San Andreas, California 95249 5 CHOWCHILLA WATER DISTRICT, et al.: 6 GREEN, GREEN & RIGBY 7 P.O. Box 1019 Madera, California 93639 8 BY: DENSLOW GREEN, ESQ. 9 CALIFORNIA FARM BUREAU FEDERATION: 10 DAVID J. GUY, ESQ. 2300 River Plaza Drive 11 Sacramento, California 95833 12 SANTA CLARA VALLEY WATER DISTRICT: 13 MORRISON & FORESTER 755 Page Mill Road 14 Palo Alto, California 94303 BY: KEVIN T. HAROFF, ESQ. 15 CITY OF SHASTA LAKE: 16 ALAN N. HARVEY 17 P.O. Box 777 Shasta Lake, California 96019 18 COUNTY OF STANISLAUS: 19 MICHAEL G. HEATON, ESQ. 20 926 J Street Sacramento, California 95814 21 GORRILL LAND COMPANY: 22 GORRILL LAND COMPANY 23 P.O. Box 427 Durham, California 95938 24 BY: DON HEFFREN 25 CAPITOL REPORTERS (916) 923-5447 2792 1 REPRESENTATIVES 2 SOUTH DELTA WATER AGENCY: 3 JOHN HERRICK, ESQ. 4 3031 West March Lane, Suite 332 East Stockton, California 95267 5 COUNTY OF GLENN: 6 NORMAN Y. HERRING 7 525 West Sycamore Street Willows, California 95988 8 REGIONAL COUNCIL OF RURAL COUNTIES: 9 MICHAEL B. JACKSON, ESQ. 10 1020 Twelfth Street, Suite 400 Sacramento, California 95814 11 DEER CREEK WATERSHED CONSERVANCY: 12 JULIE KELLY 13 P.O. Box 307 Vina, California 96092 14 DELTA TRIBUTARY AGENCIES COMMITTEE: 15 MODESTO IRRIGATION DISTRICT 16 P.O. Box 4060 Modesto, California 95352 17 BY: BILL KETSCHER 18 SAVE THE SAN FRANCISCO BAY ASSOCIATION: 19 SAVE THE BAY 1736 Franklin Street 20 Oakland, California 94612 BY: CYNTHIA L. KOEHLER, ESQ. 21 BATTLE CREEK WATERSHED LANDOWNERS: 22 BATTLE CREEK WATERSHED CONSERVANCY 23 P.O. Box 606 Manton, California 96059 24 25 CAPITOL REPORTERS (916) 923-5447 2793 1 REPRESENTATIVES 2 BUTTE SINK WATERFOWL ASSOCIATION, et al.: 3 MARTHA H. LENNIHAN, ESQ. 4 455 Capitol Mall, Suite 300 Sacramento, California 95814 5 CITY OF YUBA CITY: 6 WILLIAM P. LEWIS 7 1201 Civic Center Drive Yuba City, California 95993 8 BROWNS VALLEY IRRIGTAION DISTRICT, et al.: 9 BARTKIEWICZ, KRONICK & SHANAHAN 10 1011 22nd Street, Suite 100 Sacramento, California 95816 11 BY: ALAN B. LILLY, ESQ. 12 CONTRA COSTA WATER DISTRICT: 13 BOLD, POLISNER, MADDOW, NELSON & JUDSON 500 Ygnacio Valley Road, Suite 325 14 Walnut Creek, California 94596 BY: ROBERT B. MADDOW, ESQ. 15 GRASSLAND WATER DISTRICT: 16 DON MARCIOCHI 17 22759 South Mercey Springs Road Los Banos, California 93635 18 SAN LUIS CANAL COMPANY: 19 FLANAGAN, MASON, ROBBINS & GNASS 20 3351 North M Street, Suite 100 Merced, California 95344 21 BY: MIICHAEL L. MASON, ESQ. 22 STONY CREEK BUSINESS AND LAND OWNERS COALITION: 23 R.W. MCCOMAS 4150 County Road K 24 Orland, California 95963 25 CAPITOL REPORTERS (916) 923-5447 2794 1 REPRESENTATIVES 2 TRI-DAM POWER AUTHORITY: 3 TUOLUMNE UTILITIES DISTRICT 4 P.O. Box 3728 Sonora, California 95730 5 BY: TIM MCCULLOUGH 6 DELANO-EARLIMART IRRIGATION DISTRICT, et al.: 7 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 8 Oroville, California 95965 BY: JEFFREY A. MEITH, ESQ. 9 HUMANE FARMING ASSOCIATION: 10 BRADLEY S. MILLER. 11 1550 California Street, Suite 6 San Francisco, California 94109 12 CORDUA IRRIGATION DISTRICT, et al.: 13 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 14 P.O. Box 1679 Oroville, California 95965 15 BY: PAUL R. MINASIAN, ESQ. 16 EL DORADO COUNTY WATER AGENCY: 17 DE CUIR & SOMACH 400 Capitol Mall, Suite 1900 18 Sacramento, California 95814 BY: DONALD B. MOONEY, ESQ. 19 GLENN COUNTY FARM BUREAU: 20 STEVE MORA 21 501 Walker Street Orland, California 95963 22 MODESTO IRRIGATION DISTRICT: 23 JOEL MOSKOWITZ 24 P.O. Box 4060 Modesto, California 95352 25 CAPITOL REPORTERS (916) 923-5447 2795 1 REPRESENTATIVES 2 PACIFIC GAS & ELECTRIC: 3 RICHARD H. MOSS, ESQ. 4 P.O. Box 7442 San Francisco, California 94120 5 CENTRAL DELTA WATER AGENCY, et al.: 6 NOMELLINI, GRILLI & MCDANIEL 7 P.O. Box 1461 Stockton, California 95201 8 BY: DANTE JOHN NOMELLINI, ESQ. and 9 DANTE JOHN NOMELLINI, JR., ESQ. 10 TULARE LAKE BASIN WATER STORAGE UNIT: 11 MICHAEL NORDSTROM 1100 Whitney Avenue 12 Corcoran, California 93212 13 AKIN RANCH, et al.: 14 DOWNEY, BRAND, SEYMOUR & ROHWER 555 Capitol Mall, 10th Floor 15 Sacramento, California 95814 BY: KEVIN M. O'BRIEN, ESQ. 16 OAKDALE IRRIGATION DISTRICT: 17 O'LAUGHLIN & PARIS 18 870 Manzanita Court, Suite B Chico, California 95926 19 BY: TIM O'LAUGHLIN, ESQ. 20 SIERRA CLUB: 21 JENNA OLSEN 85 Second Street, 2nd Floor 22 San Francisco, California 94105 23 YOLO COUNTY BOARD OF SUPERVISORS: 24 LYNNEL POLLOCK 625 Court Street 25 Woodland, California 95695 CAPITOL REPORTERS (916) 923-5447 2796 1 REPRESENTATIVES 2 PATRICK PORGENS & ASSOCIATES: 3 PATRICK PORGENS 4 P.O. Box 60940 Sacramento, California 95860 5 BROADVIEW WATER DISTRICT, et al.: 6 DIANE RATHMANN 7 P.O. Box 156 Dos Palos, California 93620 8 FRIENDS OF THE RIVER: 9 BETSY REIFSNIDER 10 128 J Street, 2nd Floor Sacramento, California 95814 11 MERCED IRRIGATION DISTRICT: 12 FLANAGAN, MASON, ROBBINS & GNASS 13 P.O. Box 2067 Merced, California 95344 14 BY: KENNETH M. ROBBINS, ESQ. 15 CENTRAL SAN JOAQUIN WATER CONSERVATION DISTRICT: 16 REID W. ROBERTS, ESQ. 311 East Main Street, Suite 202 17 Stockton, California 95202 18 METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA: 19 JAMES F. ROBERTS P.O. Box 54153 20 Los Angeles, California 90054 21 SACRAMENTO AREA WATER FORUM: 22 CITY OF SACRAMENTO 980 9th Street, 10th Floor 23 Sacramento, California 95814 BY: JOSEPH ROBINSON, ESQ. 24 25 CAPITOL REPORTERS (916) 923-5447 2797 1 REPRESENTATIVES 2 TUOLUMNE RIVER PRESERVATION TRUST: 3 NATURAL HERITAGE INSTITUTE 4 114 Sansome Street, Suite 1200 San Francisco, California 94194 5 BY: RICHARD ROOS-COLLINS, ESQ. 6 CALIFORNIA DEPARTMENT OF WATER RESOURCES: 7 DAVID A. SANDINO, ESQ. P.O. Box 942836 8 Sacramento, California 94236 9 FRIANT WATER USERS AUTHORITY: 10 GARY W. SAWYERS, ESQ. 575 East Alluvial, Suite 101 11 Fresno, California 93720 12 KERN COUNTY WATER AGENCY: 13 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 400 Captiol Mall, 27th Floor 14 Sacramento, California 95814 BY: CLIFFORD W. SCHULZ, ESQ. 15 SAN JOAQUIN RIVER EXCHANGE CONTRACTORS: 16 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 17 P.O. Box 1679 Oroville, California 95965 18 BY: MICHAEL V. SEXTON, ESQ. 19 SAN JOAQUIN COUNTY: 20 NEUMILLER & BEARDSLEE P.O. Box 20 21 Stockton, California 95203 BY: THOMAS J. SHEPHARD, SR., ESQ. 22 CITY OF STOCKTON: 23 DE CUIR & SOMACH 24 400 Capitol Mall, Suite 1900 Sacramento, California 95814 25 BY: PAUL S. SIMMONS, ESQ. CAPITOL REPORTERS (916) 923-5447 2798 1 REPRESENTATIVES 2 ORLAND UNIT WATER USERS' ASSOCIATION: 3 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 4 P.O. Box 1679 Oroville, California 95965 5 BY: M. ANTHONY SOARES, ESQ. 6 GLENN-COLUSA IRRIGATION DISTRICT: 7 DE CUIR & SOMACH 400 Capitol Mall, Suite 1900 8 Sacramento, California 95814 BY: STUART L. SOMACH, ESQ. 9 NORTH SAN JOAQUIN WATER CONSERVATION DISTRICT: 10 JAMES F. SORENSEN CONSULTING CIVIL ENGINEER, INC.: 11 209 South Locust Street Visalia, California 93279 12 BY: JAMES F. SORENSEN 13 PARADISE IRRIGATION DISTRICT: 14 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 15 Oroville, California 95965 BY: WILLIAM H. SPRUANCE, ESQ. 16 COUNTY OF COLUSA: 17 DONALD F. STANTON, ESQ. 18 1213 Market Street Colusa, California 95932 19 COUNTY OF TRINITY: 20 COUNTY OF TRINITY - NATURAL RESOURCES 21 P.O. Box 156 Hayfork, California 96041 22 BY: TOM STOKELY 23 CITY OF REDDING: 24 JEFFERY J. SWANSON, ESQ. 2515 Park Marina Drive, Suite 102 25 Redding, California 96001 CAPITOL REPORTERS (916) 923-5447 2799 1 REPRESENTATIVES 2 TULARE IRRIGATION DISTRICT: 3 TEHEMA COUNTY RESOURCE CONSERVATION DISTRICT 4 2 Sutter Street, Suite D Red Bluff, California 96080 5 BY: ERNEST E. WHITE 6 STATE WATER CONTRACTORS: 7 BEST BEST & KREIGER P.O. Box 1028 8 Riverside, California 92502 BY: ERIC GARNER, ESQ. 9 COUNTY OF TEHEMA, et al.: 10 COUNTY OF TEHEMA BOARD OF SUPERVISORS 11 P.O. Box 250 Red Bluff, California 96080 12 BY: CHARLES H. WILLARD 13 MOUNTAIN COUNTIES WATER RESOURCES ASSOCIATION: 14 CHRISTOPHER D. WILLIAMS P.O. Box 667 15 San Andreas, California 95249 16 JACKSON VALLEY IRRIGATION DISTRICT: 17 HENRY WILLY 6755 Lake Amador Drive 18 Ione, California 95640 19 SOLANO COUNTY WATER AGENCY, et al.: 20 HERUM, CRABTREE, DYER, ZOLEZZI & TERPSTRA 2291 West March Lane, S.B. 100 21 Stockton, California 95207 BY: JEANNE M. ZOLEZZI, ESQ. 22 23 ---oOo--- 24 25 CAPITOL REPORTERS (916) 923-5447 2800 1 I N D E X 2 ---oOo--- 3 4 PAGE 5 OPENING OF HEARING 2804 6 AFTERNOON SESSION 2917 7 END OF PROCEEDINGS 3031 8 CROSS-EXAMINATION OF EAST BAY MUNICIPAL UTILITY DISTRICT: 9 DEPARTMENT OF INTERIOR 2804 10 CENTRAL DELTA PARTIES 2813 BY BOARD MEMBERS 2878 11 REDIRECT EXAMINATION: 12 DEPARTMENT OF WATER RESOURCES 2886 13 BY BOARD MEMBERS 2890 14 RECROSS-EXAMINATION OF DEPARTMENT OF WATER RESOURCES: 15 DEPARTMENT OF THE INTERIOR 2894 16 CENTRAL DELTA PARTIES 2895 CONTRA COSTA WATER DISTRICT 2897 17 WESTERN CANAL WATER DISTRICT 2900 BY STAFF 2904 18 BOARD MEMBERS 2905 19 NORTH DELTA WATER AGENCY, et al.: 20 OPENING STATEMENT 2917 21 PANEL: 22 ROBERT CLARK DON KIENLEN 23 MICHAEL HARDESTY EDWARD COFFELT 24 ANDREW H. SAWYER RICHARD EDWIN MARSHALL 25 ---oOo--- CAPITOL REPORTERS (916) 923-5447 2801 1 INDEX (Cont'd.) 2 NORTH DELTA WATER AGENCY, et al.: 3 DIRECT EXAMINATION: 4 BY MR. O'BRIEN 2920 5 DEPARTMENT OF WATER RESOURCES: 6 BY DAVID A. SANDINO 2931 7 CROSS-EXAMINATION: 8 BY MR. GALLERY 2932 9 BY MR. BRANDT 2936 BY STAFF 2939 10 BY THE BOARD 2941 11 WOODBRIDGE IRRIGATION DISTRICT: 12 PANEL: 13 STEVEN P. CRAMER JAMES C. HANSON 14 ANDERS CHRISTENSEN 15 OPENING STATEMENT: 16 BY DANIEL F. GALLERY 2946 17 NORTH SAN JOAQUIN WATER CONSERVATION DISTRICT: 18 BY JAMES F. SORENSEN 2988 19 CROSS-EXAMINATION: 20 BY FRED ETHERIDGE 2995 BY THE BOARD 2997 21 WOODBRIDGE IRRIGATION DISTRICT: 22 CROSS-EXAMINATION: 23 BY ARTHUR F. GODWIN 3001 24 BY ALF BRANDT 3004 25 CAPITOL REPORTERS (916) 923-5447 2802 1 INDEX (Cont'd.) 2 WOODBRIDGE IRRIGATION DISTRICT: 3 CROSS-EXAMINATION: 4 BY THOMAS W. BIRMINGHAM 3005 5 BY MICHAEL JACKSON 3013 6 7 ---oOo--- 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 1 WEDNESDAY, AUGUST 19, 1998, 9:00 A.M. 2 SACRAMENTO, CALIFORNIA 3 ---oOo--- 4 C.O. CAFFREY: With that, then, we will resume our 5 hearing. We are in Phase IV of the Bay-Delta Water Rights 6 Hearing. And, Mr. Brandt, you, sir, were in the middle of 7 your cross-examination when we adjourned last night. And 8 you, I believe, were going to present a document as a 9 potential evidentiary exhibit. Is that correct, sir? 10 MR. BRANDT: Yes, Mr. Chairman. I have provided 11 copies to everyone here in the audience and to the staff of 12 what we have, now, labeled Department of the Interior 13 Exhibit 102. We are calling it 102, because it's in our 14 series of, basically, rebuttal evidence that we are 15 providing at the hearing. 16 C.O. CAFFREY: All right, sir. 17 ---oOo--- 18 CROSS-EXAMINATION OF EAST BAY MUNICIPAL UTILITY DISTRICT 19 DEPARTMENT OF THE INTERIOR 20 BY ALF BRANDT 21 MR. BRANDT: I'm also handing a copy of Exhibit 102 22 to Mr. Lampe. And I asked him to take a look at the gain 23 sharing provision which is on page seven. It starts on 24 page 7. 25 MR. LAMPE: Yes. CAPITOL REPORTERS (916) 923-5447 2803 1 MR. BRANDT: Mr. Lampe, I think yesterday you were in 2 the middle of trying to get an answer to the question about 3 how the gain sharing provision applied to any water that 4 you may obtain from the American River from the Bureau of 5 Reclamation. And, you -- I believe, was it your testimony 6 that you -- that that gain sharing provision excluded any 7 water from -- from the Bureau of Reclamation? 8 MR. LAMPE: No, that would include. Before I begin I 9 will note that the copy that you're entering into the 10 record is a copy of the agreement, which is the initial. 11 There -- subsequently, this agreement has been fully 12 executed and signed by each of the parties. The contents 13 of the agreement is identical. 14 MR. BRANDT: Thank you for that clarification. So 15 could you explain to me -- so it's included, the Bureau of 16 Reclamation water that you would get would be included in 17 the gain sharing? 18 MR. LAMPE: Let me read from the agreement the 19 specific provisions as I see them. "East Bay MUD agrees to 20 increase instream flows beyond the flows specified in 21 attachment one by an amount equal to 20 percent of the 22 actual yield of additional water supplies developed by East 23 Bay MUD from new facilities -- excuse me, "until reaching a 24 maximum quantity of 20,000 acre-feet which will be 25 available at the joint written request of the California CAPITOL REPORTERS (916) 923-5447 2804 1 Department of Fish and Game and the Service." 2 So any actual increase in yield to District 3 customers resulting from new facilities, this gain sharing 4 provision applies. 5 MR. BRANDT: So that's new facilities, not just on 6 the Mokelumne River, but if you were to get it from the 7 American River as well? 8 MR. LAMPE: Correct. 9 MR. BRANDT: Can you, also, tell me in your 10 negotiations with the Bureau of Reclamation, have you asked 11 for the Bureau of Reclamation to make up any water that you 12 have to give up as part of this FERC agreement, the JSA? 13 MR. LAMPE: We haven't asked specifically for that, 14 but it is a portion of our need for water, obviously. Our 15 need for water in order to satisfy our responsibilities to 16 District customers results from a number of functions, 17 natural hydrology, including mandatory instream flow 18 releases. Our request to the Bureau is to supply 19 supplemental water to allow us to meet our needs for 20 District customers including our other regulatory 21 requirements under our water rights permits. 22 MR. BRANDT: Have you requested the Bureau of 23 Reclamation to backstop the JSA, or MOU that you're 24 presenting to this Board? 25 MR. LAMPE: We haven't made any specific request in CAPITOL REPORTERS (916) 923-5447 2805 1 that regard. 2 MR. BRANDT: And you haven't had any specific 3 negotiations on this either? 4 MR. LAMPE: No. 5 MR. BRANDT: Let's move on to your negotiations with 6 others. I believe yesterday you testified that you had 7 offered the flows contained in the MOU and the JSA and 8 offered the MOU to the other parties on the Mokelumne 9 River. Is that correct? 10 MR. LAMPE: That's correct. 11 MR. BRANDT: Okay. And none of them have agreed to 12 sign on to this agreement, to the MOU? 13 MR. LAMPE: To this point, that's correct. 14 MR. BRANDT: Are you in any negotiations to get them 15 to sign on the MOU? 16 MR. LAMPE: We haven't closed the door to that. 17 We -- but we're not in any specific active negotiations in 18 that regard. 19 MR. BRANDT: Do you recall -- do you recall your 20 testimony yesterday that you -- I believe you used the 21 words, quote, "reasonable contribution," closed quote, that 22 these flows were a reasonable contribution to the Delta, 23 was that your testimony? 24 MR. LAMPE: I don't recall exactly what I might have 25 said, but I wouldn't disagree with that characterization. CAPITOL REPORTERS (916) 923-5447 2806 1 MR. BRANDT: Okay. Can you tell me from your view 2 how you view -- what it is reasonable for? It's a 3 reasonable contribution from EBMUD, or from the entire 4 river? What are we talking about? 5 MR. LAMPE: We're speaking only in terms of EBMUD's 6 contribution. It doesn't mean that that isn't a reasonable 7 contribution from the entire Mokelumne Basin. My offer 8 here is speaking specifically from the East Bay MUD 9 perspective. It could be more than reasonable for East Bay 10 MUD and totally reasonable for the Mokelumne River. That's 11 not a distinction I'm making in my presentation. It is, 12 certainly, a reasonable contribution from East Bay MUD. 13 MR. BRANDT: But you haven't made any suggestion that 14 it is a reasonable contribution from the entire Mokelumne 15 River? 16 MR. LAMPE: That's correct. We're not testifying in 17 that respect. 18 MR. BRANDT: Have any of the other parties on the 19 Mokelumne River suggested they might be willing to provide 20 additional flows to the Delta? 21 MR. LAMPE: Not to my knowledge. I'm aware that the 22 Woodbridge Irrigation District has provided testimony in 23 support of implementing the proposals which the District 24 has before the Board. 25 MR. BRANDT: Okay. But this MOU does not -- does not CAPITOL REPORTERS (916) 923-5447 2807 1 purport to resolve the entire Mokelumne contribution for 2 the Delta, correct? 3 MR. LAMPE: It's silent in that regard. 4 MR. BRANDT: Okay. Yesterday's testimony I think you 5 used the words that the affect on the Delta, or the 6 contribution to the Delta was a general consideration in 7 your negotiations of the JSA. Do you recall that 8 testimony? 9 MR. LAMPE: That -- yes. That it was a background 10 consideration in those discussions and negotiations. 11 MR. BRANDT: When you say, "background" -- 12 "background consideration," was that something that was in 13 the discussions, that there was some discussion of that, or 14 there was -- it was in your background in the back of your 15 mind? 16 MR. LAMPE: No. In the early discussions there was 17 specific discussions as to whether or not the settlement 18 agreement could or should cover the constellation of known 19 issues coming before regulatory bodies; those being 20 specifically the Federal Energy Regulatory proceeding, the 21 Board's proceeding on the Mokelumne, and the expected 22 Bay-Delta proceedings. In early discussions it was 23 determined that the Bay-Delta proceedings would be excluded 24 from the specific -- the specifics of this Memorandum of 25 Understanding. CAPITOL REPORTERS (916) 923-5447 2808 1 MR. BRANDT: So -- 2 MR. LAMPE: Or the JSA, excuse me. 3 MR. BRANDT: So you didn't -- in those discussions of 4 the JSA you didn't come to any conclusion that this would 5 be a reasonable contribution to the Delta as well? 6 MR. LAMPE: No. 7 MR. BRANDT: Yesterday you used the words that these 8 flows would be a, quote, "net benefit," closed quote. Do 9 you recall that testimony? 10 MR. LAMPE: I wouldn't disagree with it. 11 MR. BRANDT: Okay. Can you tell me what you -- what 12 you meant by, "net benefit," to what? Net benefit to the 13 Delta? 14 MR. LAMPE: If I'm recalling the area of comment that 15 you're referring to, I believe that I was referring to, 16 yes, net benefit to the Delta. In terms of the fact that 17 additional -- the JSA will result in substantially 18 increased flows from the Mokelumne River in dry and 19 critically dry years to the Delta. 20 MR. BRANDT: When you say, "substantially increased 21 flows," you mean increased from the 1961 DFG Agreement? 22 MR. LAMPE: From the current requirements, yes. 23 MR. BRANDT: Couple questions for Mr. Russell. 24 C.O. CAFFREY: Must be something you said. 25 MR. BRANDT: Mr. Russell, I'm going to ask you a CAPITOL REPORTERS (916) 923-5447 2809 1 couple more questions on your testimony about your -- what 2 you called, "DWR share of the backstop." 3 MR. RUSSELL: Okay. 4 MR. BRANDT: Okay. Can you tell me -- Strike that. 5 I believe you mentioned yesterday the Coordinated 6 Operating Agreement. Do you recall that? 7 MR. RUSSELL: Yes, I do. 8 MR. BRANDT: Can you tell me what the Coordinated 9 Operating Agreement provides as far as the shares of 10 responsibilities for the Delta between the Central Valley 11 Project and the State Water Project? 12 MR. RUSSELL: Yes, I can. 13 MR. BRANDT: What are those shares? 14 MR. RUSSELL: I anticipated a little bit, you might 15 ask that question. What I'm going to read from, because 16 the words are important, is the Coordinated Operations 17 Agreement. And it's under Section 6, 3(C). And it speaks 18 to sharing of responsibility for meeting Sacramento Valley 19 in-basin use with storage withdrawals during balanced water 20 condition. 21 (Reading): 22 "Each party," which means the CVP and the State 23 Water Project, "responsibility for making 24 available storage withdrawals to meet Sacramento 25 Valley in-basin use of storage withdrawals shall CAPITOL REPORTERS (916) 923-5447 2810 1 be determined by multiplying the total 2 Sacramento Valley in-basin use withdrawals by 3 the following percentages: For the United 4 States, 75 percent; for the State, 25 percent. 5 Sharing of responsibility during balanced water 6 conditions when unstored water for export is 7 available, each party's responsibility to meet 8 Sacramento Valley in-basin use and exports shall 9 be determined by allocation of some of the 10 United States stored water, State stored water 11 and the unstored water for export by the 12 following percentages: United States, 55; and 13 the State 45." 14 This means that during balanced conditions the CVP 15 is responsible for 75 percent and the State would be 16 responsible for 25 percent. 17 MR. BRANDT: So is that -- are those shares what you 18 intended when you used the words, "share of backstop"? 19 MR. RUSSELL: For the current operating conditions 20 those would apply, yes. 21 MR. BRANDT: Has the Bureau committed, or has the 22 United States committed to providing that 75-percent share? 23 MR. RUSSELL: Not that I'm aware. 24 MR. BRANDT: Have you had any recent discussions with 25 the Bureau about providing the 75-percent share of backstop CAPITOL REPORTERS (916) 923-5447 2811 1 for the East Bay MUD Mokelumne MOU? 2 MR. RUSSELL: No formal conversations. 3 MR. BRANDT: That concludes my questions. 4 C.O. CAFFREY: Thank you, Mr. Brandt. 5 Mr. Nomellini. Good morning, sir. 6 ---oOo--- 7 CROSS-EXAMINATION OF EAST BAY MUNICIPAL UTILITY DISTRICT 8 BY CENTRAL DELTA PARTIES 9 BY DANTE JOHN NOMELLINI 10 MR. NOMELLINI: Good morning. Dante John Nomellini 11 for Central Delta Parties. I think I need Mr. Lampe up 12 here and Mr. Hanson and -- well, we'll start with this 13 group. 14 First of all, for Mr. Lampe, a number of questions 15 regarding the East Bay MUD's water supplies. I believe 16 your testimony covered facilities and supplies at Pardee 17 and Camanche. You talked a little bit about an American 18 River Agreement. And I'd like to focus a little bit on 19 that. What quantity of water does the East Bay Municipal 20 Utility District have under contract for diversion from the 21 American River? 22 MR. LAMPE: The District currently has 150,000 23 acre-feet under contract with the U.S. Bureau of 24 Reclamation. 25 MR. NOMELLINI: You had indicated in your testimony CAPITOL REPORTERS (916) 923-5447 2812 1 previously, or in the cross-examination, that the District 2 has used only 25,000 of that -- 25,000 acre-feet in, I 3 believe 1977; is that correct? 4 MR. SKINNER: What is the number? 5 MR. LAMPE: 25,000. You said 1977, yeah, I believe. 6 MR. NOMELLINI: If you're the wrong one to ask the 7 question of, I would be happy to accept the answer from 8 someone else on the panel. 9 MR. LAMPE: 25,000 in 1977. 10 MR. NOMELLINI: Other than the 25,000, has East Bay 11 MUD utilized any other water from the 150,000 acre-foot 12 contract with the Bureau on the American River? 13 MR. LAMPE: Not to my knowledge. 14 MR. NOMELLINI: And in 1977 how did the District go 15 about diverting that 25,000 acre-feet? 16 MR. LAMPE: An emergency pumping station was 17 established in Middle River. 18 MR. NOMELLINI: All right. And that's in the Delta, 19 is it not? 20 MR. LAMPE: Yes. 21 MR. NOMELLINI: Does East Bay MUD have any facilities 22 to divert from the Delta today? 23 MR. LAMPE: The District does have some emergency 24 facilities at Bixler. 25 MR. NOMELLINI: And what is the capacity of the CAPITOL REPORTERS (916) 923-5447 2813 1 emergency facility at Bixler. 2 MR. LAMPE: I really can't give you a firm answer on 3 that. 4 MR. NOMELLINI: Anybody on the panel know? 5 MR. LAMPE: Are you talking about -- there is no 6 capacity to treat that water. So I suppose the appropriate 7 answer is: There is no capacity. 8 MR. NOMELLINI: All right. Let's take it in parts. 9 MR. LAMPE: Okay. 10 MR. NOMELLINI: Let's first get it diverted from the 11 Delta if we could and focus on what the capacity of the 12 diversion facility is at Bixler? 13 MR. LAMPE: If someone has -- here has an answer? 14 MR. MYERS: The District's facilities at Bixler 15 include the fish stream, which I believe is silted in right 16 now, and a series of low-head and high-head pumps. And if 17 they were operable I believe it would be about 60 million 18 gallons per day. 19 MR. NOMELLINI: All right. And how much in terms of 20 total acre-feet per year would that produce? 21 MR. MYERS: What -- 22 MR. NOMELLINI: If I was smart enough I could do the 23 math myself, I know. 24 MR. MYERS: We really don't know, because we don't 25 know how much of that time we could pump during the year. CAPITOL REPORTERS (916) 923-5447 2814 1 MR. NOMELLINI: All right. So fish constraints may 2 change the capability of that diversion to divert the 3 water, but physically its capacity, it has to be at least 4 as much as that temporary pump station that was put in 5 Middle River in 1977, wouldn't it, which was the 25,000 6 acre-feet? 7 MR. LAMPE: Yeah. I mean if you're talking about the 8 physical capacity, probably so. Again, that system hasn't 9 been on line. 10 MR. NOMELLINI: Okay. 11 MR. LAMPE: I can't tell you what the operable status 12 of that facility is. 13 MR. NOMELLINI: I'm not asking that. I want to know 14 what its capacity would be if it were operable and assuming 15 we helped you clean the fish silt from the fish screen and 16 if it was permissible? 17 MR. LAMPE: And if it was permitted. 18 MR. NOMELLINI: Correct. 19 MR. LAMPE: The testimony is -- apparently, the 20 design is somewhere in the vicinity of 60 million gallons 21 per day, which if that could be pumped on an annual basis 22 would, I believe, be something in the vicinity of 66,000 23 acre-feet. 24 MR. NOMELLINI: All right. Thank you for that. 25 Overall needs of East Bay MUD for water were described in CAPITOL REPORTERS (916) 923-5447 2815 1 your testimony, Mr. Lampe. And it indicated that at some 2 time in the future there was a need for a greater amount of 3 water. Is that a correct paraphrase of your testimony? 4 MR. LAMPE: Are you using the term, "need for water" 5 in the content that the District uses it? 6 MR. NOMELLINI: Yes. 7 MR. LAMPE: The need for water for District 8 customers? 9 MR. NOMELLINI: Correct. 10 MR. LAMPE: The District needs water today. We have 11 a need for water today as well as in the future. 12 MR. NOMELLINI: All right. Could you quantify what 13 that need is today of additional water -- Strike that. 14 Do you need any additional water today? 15 MR. LAMPE: We do. 16 MR. NOMELLINI: And what is your estimate of the 17 quantity of water, additional water that you need today? 18 MR. SKINNER: It depends on the requirements. 19 MR. LAMPE: Under our current fish flows, or under 20 the proposed settlement? Well, under what conditions? 21 MR. NOMELLINI: Let's start with the current fish 22 flows. 23 MR. LAMPE: I don't believe that we've put that in 24 testimony here. My recollection of earlier analyses 25 indicate that our current demand, planning level demand is CAPITOL REPORTERS (916) 923-5447 2816 1 220 million gallons per day. We could satisfy about 122 2 million gallons per day on the assumption that during 3 critical drought we would ration District customers 75 4 percent. So all of our need for water numbers are assuming 5 that during the critically dry periods we ration District 6 customers 75 percent and don't go beyond that. 7 MR. NOMELLINI: All right. So there's 18,000, 8 roughly there. 18,000 acre-feet that the District needs of 9 additional water today from a planning standpoint; is that 10 correct? That's the Sorensen method. 11 MR. LAMPE: I haven't done that analysis. How did 12 you get to the 18? I said there was 220 today. We can 13 serve about 192, is my recollection. 14 MR. NOMELLINI: Okay, 28. 15 MR. LAMPE: I would -- 16 MR. NOMELLINI: What's the number? 17 MR. LAMPE: I would say 28, that's MGD, thousand 18 acre-feet, maybe make it 32,000 acre-feet. 19 MR. NOMELLINI: All right. So we have a shortage 20 today of 32,000 acre-feet in terms of the present agreement 21 for fish flows on the Mokelumne River and East Bay MUD's 22 demands? 23 MR. LAMPE: Right. 24 MR. NOMELLINI: Is there any reason why the District 25 is not utilizing the Bixler pumping facility today to meet CAPITOL REPORTERS (916) 923-5447 2817 1 that demand? 2 MR. LAMPE: Yes, several. One, the District does not 3 have the treatment facilities in order to take and treat 4 adequately the flows from a Bixler location. An indication 5 of that is the five-year enduring impact of the 25,000 6 acre-feet that was taken in 1976/'77. We saw the residual 7 impacts of that take in our reservoirs for a five-year 8 period following the delivery of that water to the 9 District's system. The District does not have the 10 capability today, the treatment facilities in order to 11 adequately treat that Delta water. 12 MR. NOMELLINI: And the District is not planning to 13 build such treatment facilities; is that correct? 14 MR. LAMPE: That's correct. There is a very 15 substantial, in fact, several analyses done as to what it 16 would take in order to provide the treatment capability 17 within the existing confines of the District's facilities. 18 The costs of that are quite substantial. As I recall 19 they're in the range of one billion dollars. 20 MR. NOMELLINI: All right. You would admit, would 21 you not, that other water purveying agencies are 22 successfully treating Delta water for domestic use? 23 MR. LAMPE: Certainly, a number of agencies are 24 treating water for domestic use. 25 MR. NOMELLINI: All right. Is the reason that East CAPITOL REPORTERS (916) 923-5447 2818 1 Bay MUD has elected not to go forward with the development 2 of a treatment system that could utilize the water pumped 3 from the Delta at the Bixler pumping plant, the District's 4 commitment to what we call, "Pure Sierra snowmelt"? 5 MR. LAMPE: The reasons are three. First of all, as 6 even those agencies that are today taking and treating 7 Delta water, they are continuing to express increasing 8 concerns about their continuing ability to be able to 9 provide adequately treated water to their District 10 customers given the Delta source. 11 As I've indicated to you, it would be of 12 substantial, not only cost, but local environmental impact 13 in order to bring those type of treatment facilities on 14 line for the District. And the municipal and industrial 15 community even today is trying to determine what additional 16 treatment requirements might be needed in the future in 17 order to deal with that water. 18 Secondly, the environmental impacts in the Delta 19 of an additional diversion are quite substantial and have 20 been determined, in terms of earlier environmental work 21 that has been done, I would cite most specifically the 1993 22 Programmatic Water Supply Management Program done by the 23 East Bay MUD Utility District, the environmental impacts 24 associated with the additional diversion were greater than 25 the environmental impacts associated with other sources of CAPITOL REPORTERS (916) 923-5447 2819 1 supply. 2 MR. NOMELLINI: Has the District considered combining 3 its efforts with those of Contra Costa Water District and 4 utilize their diversion facility on Old River to fulfill, 5 not only their needs, but also some of the needs of East 6 Bay MUD with water from the Delta? 7 MR. LAMPE: Part of the environmental analysis I just 8 referred to and the water supply management plan adopted in 9 1993 involved a substantial review of the potential for 10 joint project development with the Contra Costa Water 11 District. Such a joint project was eliminated, because of 12 the increased cost and environmental impacts and lower 13 water quality that resulted from that alternative as 14 compared to other alternatives. 15 MR. NOMELLINI: All right. Speaking of other 16 alternatives, the District, and that is East Bay Municipal 17 Utility District, is embarking on an effort to develop 18 facilities for diversion from the American River. Is that 19 not correct? 20 MR. LAMPE: Yes, that's correct. 21 MR. NOMELLINI: And the cost of those facilities is 22 quite high, is it not? 23 MR. LAMPE: Again, "high," is a relative term. 24 MR. NOMELLINI: All right. Relative to jointly 25 utilizing the facilities of Contra Costa Water District in CAPITOL REPORTERS (916) 923-5447 2820 1 an effort, how would you rate the American River 2 alternative versus that alternative? 3 MR. LAMPE: Substantially lower in cost. 4 MR. NOMELLINI: Okay. Now, with regard to your 5 American River contract, or the District's American River 6 contract, has the District been involved in negotiations to 7 sell any portion of that water, either temporarily or on a 8 permanent basis? 9 MR. LAMPE: No. The District has not been involved 10 in any specific negotiations to sell. What the District 11 has been attempting to do is to keep open options for 12 projects that might be of regional benefit so that they 13 would provide benefit beyond the East Bay Municipal Utility 14 District and provide additional benefits both to the CVP 15 Project and to other project beneficiaries as well as the 16 environment. 17 MR. NOMELLINI: All right. Have there been any 18 discussions between the District and representatives of the 19 Westlands Water District regarding the sale of the East Bay 20 MUD's entitlement from the American River? 21 MR. LAMPE: In the mid 1990s the District did make 22 available, statewide, notification that we had the USBR 23 contract, that we anticipated making future use of it, and 24 that we would entertain any proposals for either near-term 25 or long-term joint-project partners that might be able to CAPITOL REPORTERS (916) 923-5447 2821 1 achieve the objectives of increasing the benefits both to 2 the environment and to the water community from utilization 3 of our contract. That -- within that context, I don't 4 recall specifically, but Westlands Water District may have 5 initially responded to that, but discussions didn't really 6 lead to anything. 7 MR. NOMELLINI: All right. Anybody else on the panel 8 aware of specific discussions with Westlands Water District 9 with regard to utilizing East Bay MUD's American River 10 water in some kind of a coordinated fashion? Hanson looks 11 like he knows. 12 MR. LAMPE: I'm not recalling anything. 13 MR. NOMELLINI: Okay. Are you denying that any such 14 negotiations took place? 15 MR. LAMPE: I'm not. 16 MR. NOMELLINI: That's fair enough. 17 MR. LAMPE: It is an obvious resource that ought to 18 be taken advantage of to obtain the maximum benefit of, and 19 that would be our objective. 20 MR. NOMELLINI: All right. You presented in your 21 testimony as an exhibit an agreement, and I forget what the 22 acronym is that we're using, but the agreement or 23 settlement agreement dealing with this water right 24 procedure. 25 MR. LAMPE: Memorandum of Understanding. CAPITOL REPORTERS (916) 923-5447 2822 1 MR. NOMELLINI: All right, MOU. And there was a 2 series of questions by representatives of Westlands and San 3 Luis-Delta Mendota Canal Water Authority with regard to the 4 assumptions that went into the execution of that agreement. 5 Do you recall that line of questioning? 6 MR. LAMPE: I recall that there were questions, yes. 7 MR. NOMELLINI: All right. Do you know the 8 circumstances leading to the negotiation of that agreement 9 as far as who initiated the discussion? 10 MR. LAMPE: I can't speak specifically to exactly how 11 the discussions were initiated. I know that they resulted 12 from our observation of the negotiations that had already 13 begun in terms of the San Joaquin. And it was our sense 14 that given the Board's interest in settlement agreements 15 that we might be able to build upon the concepts and the 16 ideas that were being developed there and develop an 17 agreement. 18 MR. NOMELLINI: All right. Let's put it another way 19 and see whether you agree or not. East Bay MUD had a 20 settlement agreement worked out on the Mokelumne in 21 connection with the FERC review of its licenses on the 22 Mokelumne. Is that -- 23 MR. LAMPE: We didn't have a final agreement at that 24 point. What we had were Principles of Agreement. 25 MR. NOMELLINI: Okay. So you had Principles of CAPITOL REPORTERS (916) 923-5447 2823 1 Agreement worked out in the FERC context -- 2 MR. LAMPE: Correct. 3 MR. NOMELLINI: -- that provided for additional flow 4 to the Mokelumne River. And when you saw the State Board's 5 interest in settlement agreements you decided that, we will 6 go forward and utilize our already existing contemplated 7 commitment to the Mokelumne River to secure a settlement of 8 any obligation we might have in the water right proceeding. 9 Is that what you're saying? 10 MR. LAMPE: No. I'm saying that we had Principles of 11 Agreement negotiated on the Mokelumne. We felt that they, 12 also, provided significant additional benefit to the Delta 13 and that we ought to discuss that with those in interest in 14 terms of the current responsibilities for meeting the Delta 15 flows to see if they also saw some value in those flows. 16 And the resulting agreement indicates that they do. 17 MR. NOMELLINI: All right. If I understand the MOU 18 and the FERC related Principles of Agreement, that there is 19 no additional commitment for water in the MOU from East Bay 20 MUD over and above the FERC agreement; is that correct, 21 FERC principles, FERC agreement? 22 MR. LAMPE: The specific flows that we offer in this 23 proceeding are the same flows that are contained in the 24 Joint Settlement Agreement with the California Department 25 of Fish and Game and the U.S. Fish and Wildlife Service. CAPITOL REPORTERS (916) 923-5447 2824 1 MR. NOMELLINI: Okay. What incentive is there on the 2 part of any third party to enter into a water right 3 settlement with you, the District, when the commitment for 4 those flows appears to be forthcoming from the FERC 5 proceeding? 6 MR. BIRMINGHAM: Objection, calls for speculation. 7 MR. NOMELLINI: Well, if he knows. 8 C.O. CAFFREY: I'll allow the witness to answer the 9 question if he has an answer. 10 MR. LAMPE: My response would be that I can't 11 speculate as to that. I respect the other participants in 12 the agreements and believe that they fully analyzed it 13 before they signed that agreement. 14 MR. NOMELLINI: All right. Focusing in on the 15 Westlands Water District, were they signatories to the MOU? 16 MR. LAMPE: I'm sorry, I was -- 17 MR. NOMELLINI: Okay. 18 MR. LAMPE: Is Westlands a signatory? 19 MR. NOMELLINI: Yeah, focusing in on Westlands, is 20 Westlands a signatory to the MOU? 21 MR. LAMPE: Let me specifically review it. Yes, they 22 are. 23 MR. NOMELLINI: All right. 24 C.O. CAFFREY: You could have just looked at 25 Mr. Birmingham, he was nodding in the affirmative. CAPITOL REPORTERS (916) 923-5447 2825 1 MR. NOMELLINI: We wouldn't talk about Birmingham 2 nodding, we learned that before. 3 MR. LAMPE: I was trying to get ready for the next 4 question. 5 MR. NOMELLINI: All right. Is San Luis-Delta Mendota 6 Canal Authority a signatory to the MOU? 7 MR. LAMPE: Yes, they are. 8 MR. NOMELLINI: Now, has Westlands Water District 9 notified you that they have withdrawn from the MOU? 10 MR. LAMPE: Not to my knowledge. 11 MR. NOMELLINI: All right. Has San Luis-Delta 12 Mendota Water Authority? 13 MR. LAMPE: Not to my knowledge. And there are -- 14 the specific provisions of the agreement require 15 consultation prior to any individual action. So I know 16 that there has not been any consultation pursuant to the 17 agreement. 18 MR. NOMELLINI: Were there discussions between East 19 Bay MUD and representatives of the Westlands Water District 20 prior to Westlands's execution of the MOU? 21 MR. LAMPE: Concerning what? 22 MR. NOMELLINI: Concerning the MOU. 23 MR. LAMPE: Yes, there was. There were discussions 24 among all the parties concerning the Memorandum. 25 MR. NOMELLINI: And did you participate in those CAPITOL REPORTERS (916) 923-5447 2826 1 discussions? 2 MR. LAMPE: I participated in some of those 3 discussions. Some were very technical and other were the 4 policyholders. 5 MR. NOMELLINI: In the discussions that you 6 participated in, was it ever mentioned that East Bay MUD 7 had plans to secure a water supply from the American River? 8 MR. LAMPE: I believe that it was, yes. 9 MR. NOMELLINI: Mr. Myers is nodding his head more 10 affirmatively. Mr. Myers, could you give us a definitive 11 answer on that? 12 MR. MYERS: Not any more than what Mr. Lampe did. 13 It's my understanding that they were discussing some of 14 those flows. 15 MR. NOMELLINI: And were you in those meetings? 16 MR. MYERS: I was in one. 17 MR. NOMELLINI: In that meeting did you overhear such 18 discussion concerning East Bay MUD's plan to take water 19 from the American River? 20 MR. MYERS: Not specifically. I was there for 21 technical reasons and it was a policy-level discussion. 22 MR. NOMELLINI: Okay. So back to Mr. Lampe. Is it 23 fair to state that East Bay MUD initiated the water right 24 settlement discussions related to the MOU? 25 MR. LAMPE: I believe that would be fair to say. CAPITOL REPORTERS (916) 923-5447 2827 1 MR. NOMELLINI: Okay. We're going to switch to 2 Mr. Nuzum. Exhibit 8, page 8, Fred, do you happen to have 3 that overhead? It's the map of -- it's kind of a map of 4 the Delta. 5 MR. ETHERIDGE: We're checking. 6 MR. NOMELLINI: If you don't want to do it -- 7 C.O. CAFFREY: They've been very cooperative. 8 MR. NOMELLINI: We've got to give something to them 9 to do. All right. Mr. -- is it, "Nuzum"? 10 MR. NUZUM: Nuzum. 11 MR. NOMELLINI: All right. I'm sorry for 12 mispronouncing it. 13 C.O. CAFFREY: Can we just identify for the record 14 what that is? 15 MR. NOMELLINI: It's Figure 3 from Exhibit Number 8, 16 page 8. 17 C.O. CAFFREY: Or as Mr. Del Piero described it, 18 "It's kind of a map of the Delta." 19 MR. NOMELLINI: Well, all right. Mr. Nuzum, you 20 testified rather extensively about the lack of impact of 21 Mokelumne River flows on the Delta. Is that a fair 22 characterization of your portion of the testimony regarding 23 the impact of the Mokelumne River flows? 24 MR. NUZUM: Mr. Nomellini, I would not characterize 25 my testimony that way. CAPITOL REPORTERS (916) 923-5447 2828 1 MR. NOMELLINI: All right. That's fair enough. 2 Let's start now, what -- what is the environmental impact 3 of the Mokelumne River flow on Delta water quality? 4 MR. NUZUM: The Mokelumne is known as a source of 5 very high-quality water. And I would assume that the 6 affect would be a beneficial affect. To what extent, it 7 would be of variable extent, because primarily of the tidal 8 ebb and flood in the Delta portion which runs someplace 9 between 170 and maybe 220,000 cubic-feet per second. 10 MR. NOMELLINI: All right. Now, let's focus on Rio 11 Vista. 12 MR. NUZUM: Yes. 13 MR. NOMELLINI: The water quality station at Rio 14 Vista as shown on this drawing. 15 MR. NUZUM: Yes. 16 MR. NOMELLINI: Is it your opinion that Mokelumne 17 River flows would have no impact on water quality at Rio 18 Vista? 19 MR. NUZUM: That is my testimony. 20 MR. NOMELLINI: All right. Referencing this map, do 21 you think that map is an accurate representation of the 22 channels in the Delta? 23 MR. NUZUM: No, I do not. 24 MR. NOMELLINI: Is there some reason why you produced 25 an exhibit that did not provide an accurate representation CAPITOL REPORTERS (916) 923-5447 2829 1 of the channels in the Delta? 2 MR. NUZUM: I believe, and I could be wrong, but I 3 believe that this was a map from the Draft Environmental 4 Impact Statement, and that's why I used it. 5 MR. NOMELLINI: Which Draft Environmental Impact 6 Statement? 7 MR. NUZUM: For the State Board's hearing. 8 MR. NOMELLINI: Okay. So you did not produce this 9 map, you simply inserted it as an exhibit? 10 MR. NUZUM: That's right. 11 MR. NOMELLINI: You would acknowledge, would you not, 12 that Three Mile Slough is not shown on the map? 13 MR. NUZUM: Absolutely. 14 MR. NOMELLINI: Do you know where Three Mile Slough 15 is? 16 MR. NUZUM: I do. 17 MR. NOMELLINI: Would you point out on the map where 18 it is? I think you could just walk up there and point to 19 the screen. 20 MR. NUZUM: This is the north fork and Three Mile 21 Slough is in this area (indicating). Also, the cross Delta 22 channels is not shown nor is Georgiana Slough. 23 MS. WHITNEY: Would you describe for the record where 24 you were pointing, because that wouldn't come out very well 25 in the transcript? CAPITOL REPORTERS (916) 923-5447 2830 1 MR. NOMELLINI: Yeah. 2 MR. NUZUM: It's a portion of the map that shows the 3 Sacramento River above Rio Vista and the north fork of the 4 Mokelumne River, which is a Delta channel. 5 MR. NOMELLINI: All right. Referencing this map, and 6 I may have misheard what you stated, but let me struggle 7 with it a bit. You would agree that there is the Delta 8 where two forks of the Mokelumne split off, would you not? 9 MR. NUZUM: I do. 10 MR. NOMELLINI: And, then, you would agree that 11 there's a Georgiana Slough that's not shown on the map, 12 which would be left of the north fork of the Mokelumne? 13 MR. NUZUM: Yes, coming from the Sacramento River 14 down to the north fork of the Mokelumne. 15 MR. NOMELLINI: Okay. 16 MR. NUZUM: Delta channel, right. 17 MR. NOMELLINI: And you would agree that there's a 18 Three Mile Slough a little farther down, then, where I 19 think you pointed, but it's below Rio Vista connecting the 20 Sacramento River and the San Joaquin River? 21 MR. NUZUM: That is true. I misspoke before. It is 22 below Rio Vista. 23 MR. NOMELLINI: All right. And is it your testimony 24 that the Mokelumne River water -- if we focused on a 25 molecule of Mokelumne River water, is it your testimony CAPITOL REPORTERS (916) 923-5447 2831 1 that such molecule could not end up over at the Rio Vista 2 water quality station? 3 MR. NUZUM: No, it is not. 4 MR. NOMELLINI: All right. 5 MR. NUZUM: There can be reverse flows in this area. 6 And you could very well have a molecule, so to speak, of 7 Mokelumne River water over at the Rio Vista station. 8 MR. NOMELLINI: All right. So is it, then, your 9 testimony that Mokelumne River flows do not constitute a 10 large part of the water that would appear at the Rio Vista 11 water quality station? 12 MR. NUZUM: Yes, that's accurate. The flows from the 13 Mokelumne would be overwhelmed. 14 MR. NOMELLINI: Now, with regard -- do you know where 15 Jersey Point is? 16 MR. NUZUM: Yes, I do. 17 MR. NOMELLINI: And it's on the San Joaquin River, 18 what, roughly below the sand on the exhibit? 19 MR. NUZUM: Yes, it is. 20 MR. NOMELLINI: All right. And with regard to the 21 impact of Mokelumne River water on water quality at that 22 station, what is your opinion as to the impact? 23 MR. NUZUM: There would be more affect from the 24 studies that we have seen and have been involved with on 25 the particles of Mokelumne River water at that particular CAPITOL REPORTERS (916) 923-5447 2832 1 point than what we have described previously. 2 MR. NOMELLINI: All right. And would that constitute 3 a significant percentage of the flow at any time in any 4 particular year? 5 MR. NUZUM: Depending on the way the cross Delta 6 channel gates are operated and the time of year, it could. 7 MR. NOMELLINI: All right. Taking, for example, a 8 situation where the Delta cross channel gates were closed, 9 and we were looking at a summer month, let's take August, 10 what percentage of the flow, in rough terms, at Jersey 11 Point would be made up of -- by Mokelumne River water? 12 MR. ETHERIDGE: That's a confusing question. Clarify 13 as to year type. I imagine it varies by year type. 14 C.O. CAFFREY: Yeah, can you do that, Mr. Nomellini? 15 MR. NOMELLINI: Yeah, I think that's a fair request. 16 Let's take a -- well, I don't know which river we're going 17 to pick for the year type, but let's pick a critically dry 18 year on the San Joaquin. Would that help you? 19 MR. NUZUM: I can't answer the question. 20 MR. NOMELLINI: Okay. 21 MR. NUZUM: There are too many variables. But, 22 again, it would be -- a critical year would have -- in 23 August, would have very low flows on the Mokelumne. And 24 you would be overwhelmed, again, with the tidal flux. 25 MR. NOMELLINI: Okay. So depending on what the flows CAPITOL REPORTERS (916) 923-5447 2833 1 are from the various tributaries, the Mokelumne River 2 contribution at any particular point near Jersey Point 3 would be of variable in terms of significance depending on 4 the factors, right? 5 MR. NUZUM: Yes, and small. 6 MR. NOMELLINI: Okay. Now, moving farther up in the 7 Delta -- do you know where San Andreas Landing is? 8 MR. NUZUM: I'm sorry, I don't. 9 MR. NOMELLINI: Okay. Do you know where the 10 confluence is between the Mokelumne and the San Joaquin? 11 MR. NUZUM: The Delta forks of the Mokelumne, yes. 12 MR. NOMELLINI: All right. Could you repeat that 13 answer, please? I didn't quite hear, "The Delta forks"? 14 MR. NUZUM: The Delta forks, those are channels, 15 Delta channels for the Mokelumne. And I know where the 16 Delta channels come back together and, then, meet the San 17 Joaquin. 18 MR. NOMELLINI: Okay. 19 MR. NUZUM: Yes. 20 MR. NOMELLINI: All right. At the point where the 21 Mokelumne River intersects the San Joaquin River, what is 22 your opinion of the influence of the Mokelumne River on 23 water quality at that point? 24 MR. NUZUM: I think that it would be similar to the 25 affect that we would have at Jersey Point. CAPITOL REPORTERS (916) 923-5447 2834 1 MR. NOMELLINI: Wouldn't it be much more pronounced 2 than at Jersey Point? 3 MR. NUZUM: If you're talking about after the 4 Mokelumne forks run into the San Joaquin, I think it would 5 be similar. If it's just prior to it, it would be greater. 6 MR. NOMELLINI: Okay. And would your testimony 7 change if I added to that question the closure, assuming 8 the closure of the Delta cross channel? 9 MR. NUZUM: Yes. But, again, the channels in this 10 particular area are not shown either. For example, Little 11 Potato Slough and Potato Slough are not shown. And it has 12 a great affect on the Mokelumne River. So you need to look 13 at diversions in the South Delta, the closure of the gates, 14 the time period, the water year, the flows out of the 15 Mokelumne, to really answer your question. 16 MR. NOMELLINI: Okay. To summarize in terms of the 17 impact of the Mokelumne, is it fair to state that with -- 18 with Delta cross channel gates closed, the Mokelumne River 19 has a greater influence on water quality in the Delta than 20 with the gates open? 21 MR. NUZUM: Yes, that's true. 22 MR. NOMELLINI: And is it also fair to state that the 23 Mokelumne River influence on Delta water quality is greater 24 when the relative flows in other tributaries are lower into 25 the Delta? CAPITOL REPORTERS (916) 923-5447 2835 1 MR. NUZUM: Could you restate the question? 2 MR. NOMELLINI: Yeah. Is it fair to state that the 3 Mokelumne River influence is greater if there's less flow 4 coming down the San Joaquin River? 5 MR. NUZUM: Yes, I think that would be true as well. 6 MR. NOMELLINI: Okay. Thank you. Mr. Hanson, in 7 Exhibit 6 on page 27 there's an Exhibit B. Could I impose 8 on you -- 9 DR. HANSON: Would you like the overhead? 10 MR. NOMELLINI: Yeah, if you could. All right. 11 Mr. Hanson, calling your attention, you would agree that 12 Exhibit B is attached to your testimony, which is Exhibit 13 Number 6? 14 DR. HANSON: I would. 15 MR. NOMELLINI: All right. There was previous 16 testimony about an assumption in the hydrology that led to 17 the production of this exhibit. Do you recall that? 18 DR. HANSON: I do recall that. 19 MR. NOMELLINI: All right. Assuming that we correct 20 that in our discussion of this exhibit, does this exhibit 21 show us that the Joint Settlement Agreement produces more 22 unacceptable conditions for Mokelumne River fishery than 23 the 1961 Agreement? 24 DR. HANSON: Based on your assumption that the 25 changes in the 1978 hydrology were made, then, that year of CAPITOL REPORTERS (916) 923-5447 2836 1 what is characterized on Exhibit B as, "Unacceptable 2 conditions," would presumably be eliminated from both the 3 1961 Agreement column as well as the column under the Joint 4 Settlement Agreement. So in that scenario the two for 5 unacceptable conditions would be basically identical. 6 MR. NOMELLINI: Okay. Let's stay on that. Now, when 7 you're talking about "that," are you talking about 1978 on 8 this exhibit? 9 DR. HANSON: I was talking only about the elimination 10 if that were the result of changing that basic assumption 11 in the hydrology, that the 1978 condition that is described 12 on Exhibit B as "unacceptable," under actual hydrology may 13 change, because of the higher flows that actually occurred. 14 MR. NOMELLINI: Okay. I understand that. So that 15 1978 would be eliminated across the board. Therefore, if 16 we focused only on 1978, is it your testimony that there 17 would be no difference? 18 DR. HANSON: If we focused only on 1978 there would 19 be no difference in the unacceptable conditions. 20 MR. NOMELLINI: All right. Now, focusing on 1977 and 21 assuming the hydrology adjustment, would the unacceptable 22 condition shown under the Joint Settlement Agreement column 23 remain, or be eliminated? 24 DR. HANSON: I have not done that analysis, but I 25 would expect under the 1977 condition that several months CAPITOL REPORTERS (916) 923-5447 2837 1 at the end of that time period that are identified as 2 unacceptable may remain. 3 MR. NOMELLINI: All right. Given that condition, 4 then, isn't it true that for 1977 the Joint Settlement 5 Agreement produces more unacceptable conditions for Lower 6 Mokelumne River fishery than the 1961 Agreement? 7 DR. HANSON: The 1977 conditions under the Joint 8 Settlement Agreement would have several months in 1977 that 9 would be classified, in this scheme, as unacceptable which 10 were classified under the 1961 Agreement as stressful. 11 MR. NOMELLINI: Okay. Now, focusing on the stressful 12 conditions, and looking at the year 1988, you would agree, 13 would you not, that the Joint Settlement Agreement produces 14 greater stressful conditions for the Lower Mokelumne River 15 fishery than the 1961 Agreement? 16 DR. HANSON: In terms of stressful conditions we 17 identified one year under the 1961 Agreement where 18 stressful conditions would be identified. And we 19 identified three years during which stressful conditions 20 would be identified under the Joint Settlement Agreement. 21 MR. NOMELLINI: All right. You would agree, then, 22 that this exhibit shows that Lower Mokelumne River fishery 23 is worse off under the Joint Settlement Agreement than 24 under the 1961 Agreement; is that correct? 25 DR. HANSON: No, because there are factors that are CAPITOL REPORTERS (916) 923-5447 2838 1 taken into account. 2 MR. NOMELLINI: All right. Is it your opinion that 3 the Joint Settlement Agreement is better for Lower 4 Mokelumne River fisheries than the 1961 Agreement? 5 DR. HANSON: My understanding of the two sets of 6 agreements as they relate to all aspects of the Lower 7 Mokelumne River fisheries, the Joint Settlement Agreement 8 has more benefit than does the 1961 Agreement. 9 MR. NOMELLINI: Okay. Are any of those -- so you 10 don't think this chart, this Exhibit B, ought to be the 11 basis of decision making as to whether or not this water 12 rights settlement agreement should be acceptable or not? 13 DR. HANSON: I don't think it should be the sole 14 basis. There are other considerations such as in-stream 15 flow conditions, and the changes that occur in the flows 16 under the settlement agreement. There are nonflow related 17 habitat improvement measures under the Joint Settlement 18 Agreement, including spawn and gravel restoration and 19 replacement. There are improvements to the hatchery in 20 terms of its facilities. 21 There are a number of factors that influence the 22 overall benefits of the Lower Mokelumne River under the 23 Joint Settlement Agreement that are not contained in the 24 1961 Agreement. So, therefore, when you consider the two 25 as a complete package, I think there are overall CAPITOL REPORTERS (916) 923-5447 2839 1 environmental benefits of the Joint Settlement Agreement. 2 MR. NOMELLINI: Okay. Thank you for that. Focusing 3 in on flow -- and I'll admit to you when I saw this 4 testimony I was intrigued by the theme that more flow was 5 bad for fish. Are you -- well, is it your opinion that 6 greater flow in the Lower Mokelumne is detrimental in any 7 way to the Lower Mokelumne River fishery? 8 MR. BIRMINGHAM: I'm going to object to the question 9 on the grounds it lacks foundation. It's an incomplete 10 hypothetical. 11 MR. NOMELLINI: I don't understand the objection, 12 much less argue it. What do you want me to do? 13 MR. BIRMINGHAM: He's asking Dr. Hanson a 14 hypothetical question without stating a number of factors 15 which would influence Dr. Hanson's opinion. 16 C.O. CAFFREY: I think the question is a little 17 general. Do you understand the question, Dr. Hanson? 18 DR. HANSON: I believe I understand the question and 19 I believe I have an answer for it. 20 C.O. CAFFREY: All right. You may answer the 21 question. 22 DR. HANSON: When we look at the relationship between 23 fisheries habitat parameters and flow, there are a number 24 of factors that influence the availability and quality of 25 habitat. Those factors include such things as water CAPITOL REPORTERS (916) 923-5447 2840 1 velocity, water depth, changes in channel characteristics 2 changes in microhabitat structure. It's not a linear 3 function that says all of those habitat parameters will 4 increase as flow increases from zero to infinity. 5 When you look at those habitat characteristics, 6 which are the basis of the IFIMPSIM type of analysis, what 7 you typically see is that habitat values increase with 8 increasing flows to an acito. After which increasing flows 9 actually decrease the quality and availability of habitat 10 for various life stages of juvenile chinook salmon and 11 steelhead. So the underpinnings of the flow-habitat 12 relationship are not a linear issue, originally proposed, 13 but rather -- 14 MR. NOMELLINI: I didn't initially propose it. I 15 wanted to know your opinion on it. 16 DR. HANSON: Okay. They represent a curve. And 17 those curves change with each individual life stage as well 18 as by species. They also change from one watershed stream 19 geomorphic characteristic to another. In addition to that, 20 we also need, and the purpose of my testimony in Exhibit 6, 21 is to look at the interaction between stream flows as they 22 affect upstream reservoir operations. 23 The hypolimnetic volume that is retained within 24 those reservoirs, and the ability to not only maintain 25 fisheries habitat from a structional perspective of flow CAPITOL REPORTERS (916) 923-5447 2841 1 but also to maintain acceptable habitat from the 2 perspective of temperature. And higher flows early in the 3 seasonable, for example, may actually provide better 4 structural habitat, but ultimately deplete the availability 5 of cold water, thereby eliminating the benefits that you 6 derive early in the season because of temperature problems. 7 MR. NOMELLINI: All right. And just so you know why 8 I'm asking questions that may seem ununderstandable or 9 unreason, I listened to your testimony on the San Joaquin 10 River Agreement. 11 DR. HANSON: Yes. 12 MR. NOMELLINI: And the relationship of flow-to-fish 13 benefits is something that peaked my interest. And is 14 there -- I understand your testimony to be that once you 15 fill the channel up to the reasonable habitat levels, 16 you've got the good stuff covered and, then, you might take 17 fish out in the bad areas; is that correct? 18 DR. HANSON: That's correct. It's also, in terms of 19 the differences between my testimony on the San Joaquin 20 River and my testimony on the Mokelumne River, there is one 21 very important difference that you need to recognize. On 22 the Mokelumne River we're focusing on habitat values for 23 juvenile salmon and steelhead rearing, both during the 24 springtime period as well as over summer conditions. 25 In my testimony on the San Joaquin River when we CAPITOL REPORTERS (916) 923-5447 2842 1 were looking at the relationship with flow, that was as a 2 migratory corridor rather than as a rearing habitat. And 3 there are differences in how fish utilize those conditions 4 under those two -- 5 MR. NOMELLINI: Stay right on that. 6 DR. HANSON: Okay. 7 MR. NOMELLINI: I mean, is it important to have flow 8 to get the Mokelumne River fish out of the Mokelumne and 9 down through the Delta? 10 DR. HANSON: Certainly. 11 MR. NOMELLINI: Is that related to flow? 12 DR. HANSON: That is related to flow. It's also 13 related to temperature. And that was one of the elements 14 that was recognized in the technical analyses that led to 15 the formation of the Lower Mokelumne River fisheries's 16 management plan. It's part of recognition of why we have a 17 season distribution in the flows. And under some years 18 what you'll see is that the flows during April and May are 19 substantially higher than other periods. 20 That is, in part, to provide for that downstream 21 migratory corridor to get fish from the rearing habitat 22 down into the Delta. As you move further down in to the 23 Delta, the contribution of flow from the Mokelumne River 24 diminishes as its influenced by the contribution from other 25 tributaries as well as the influence of the tidal CAPITOL REPORTERS (916) 923-5447 2843 1 hydrodynamics. 2 MR. NOMELLINI: Okay. So flow is important to move 3 fish out of the Mokelumne in the same way that it's 4 important to move fish out of the other tributaries of the 5 San Joaquin. Is that a fair statement? 6 DR. HANSON: That's a fair statement. I would not 7 characterize it as, "move fish out," which gives the 8 connotation that we're actually forcing the fish 9 downstream. It provides the opportunity for those fish to 10 successfully out migrate. 11 MR. NOMELLINI: Okay. Could you explain the 12 difference between flushing them out and giving them the 13 opportunity? I realize you have to have water in the 14 channel. We're assuming there's water in the channel. 15 DR. HANSON: Correct. 16 MR. NOMELLINI: I'm talking about additional flow at 17 sometime to create the opportunity for fish to move out 18 other than by flushing them out. Could you, please, 19 explain that? 20 DR. HANSON: There are different types of 21 hydrodynamic conditions that occur within a stream. Under 22 very, very high flows that might occur during winter flood 23 events, there is the possibility that the flows become so 24 high that juvenile fish, primarily in the fry stage, are 25 physically moved, they're flushed downstream. We know very CAPITOL REPORTERS (916) 923-5447 2844 1 little about that, but that's at least one of the 2 hypotheses that's been put forward. 3 That's a very different process than allowing 4 those fish to continue to rear to the point where they have 5 physiologically been adaptable to move from freshwater to 6 salt water, the smoltification phase. Where they 7 volitionally move downstream in response to a variety of 8 environmental cues, that, typically, occurs during the 9 later spring for fall-run salmon. That smolt migration 10 usually occurs during April, May and into about mid June. 11 That is a period where flows are important to provide for 12 the physical opportunity for the fish to successfully move 13 down, but they're not forced down. 14 MR. NOMELLINI: All right. And in terms of the 15 magnitude of additional flow necessary to create the 16 physical opportunity for salmon smolt to go down through 17 the system, is that related to the different rivers? 18 DR. HANSON: Oh, certainly. The flow that would 19 provide for acceptable downstream conditions in the 20 Mokelumne River are substantially different than the flow 21 that would provide for acceptable flows in the Sacramento 22 River. The channel width, the channel depth, the whole 23 variety of characteristics are substantially different. 24 MR. NOMELLINI: Okay. If we fill the channel to the 25 reasonable water line so that there is habitat for fish, CAPITOL REPORTERS (916) 923-5447 2845 1 what, in addition, do we have to add to that to create this 2 physical situation to provide the opportunity for the 3 salmon smolt to volitionally move out of the Delta? 4 DR. HANSON: The additional things that you would 5 want to provide are a downstream velocity cue. If you 6 simply provided a lake -- 7 MR. NOMELLINI: Does that mean a net downstream flow? 8 DR. HANSON: That does mean a net downstream flow 9 that the fish can actually cue on as they're moving 10 downstream through the system, that's part of their 11 volitional emigration pattern. The other factors that you 12 would need to provide are acceptable temperature 13 conditions. 14 MR. NOMELLINI: Okay. In terms of the net downstream 15 flow, the cue, does it have to be big or small relative to 16 the quantity as long as it's a net downstream flow? 17 DR. HANSON: It has to be, in my opinion, again, 18 there isn't a lot of scientific data to kind of really 19 quantify these kinds of relationships, but it needs to be 20 of sufficient magnitude to provide for the direction and 21 the movement of fish in a fairly expedited fashion. 22 The longer fish tend to mill around and look for 23 cues and have a difficult time finding the downstream cue, 24 the more vulnerable they are to such things as predation by 25 fish and birds. So you want to have a high enough velocity CAPITOL REPORTERS (916) 923-5447 2846 1 so that they can actually cue on it and move downstream. 2 MR. NOMELLINI: All right. Let's focus on 3 temperature now. If I heard you correctly, previously you 4 indicated that the temperature impact on the Mokelumne 5 River by releases from storage ended some distance above 6 Woodbridge Lake. Is that correct? 7 DR. HANSON: There is a gradient of temperatures that 8 occur from the release at Camanche Dam downstream. That 9 gradient is influenced by solar radiation, the velocity of 10 the flow, the volume of flow, and a variety of other 11 factors. 12 MR. NOMELLINI: In terms of flow-related impact on 13 temperature in the stream, am I correct that with regard to 14 the Mokelumne the ability to control that with releases 15 pretty much ends above Woodbridge Lake? 16 DR. HANSON: No, not entirely. Based on the seasonal 17 period and based on the magnitude of flow, there are 18 opportunities to provide for good temperature conditions 19 all the way downstream through Lake Lodi and downstream 20 below Woodbridge Dam. Those conditions were modeled. 21 Those conditions have been extensively monitored by East 22 Bay MUD and others. Those conditions were taken into 23 account in establishing the flows that became part of the 24 JSA. 25 In other years, particularly, drought years, you CAPITOL REPORTERS (916) 923-5447 2847 1 know those drought and critical years when flows are low 2 throughout the system, temperatures within Lake Lodi and 3 further downstream become elevated to the point where the 4 magnitude of flow simply isn't adequate to maintain those 5 temperatures. Under those types of conditions, adaptive 6 strategies are used. 7 And on the Mokelumne River there's an unique 8 opportunity where if downstream temperatures are so adverse 9 that mortality is likely to be higher, there is an 10 opportunity under those flow conditions to actually trap 11 the juvenile migrates at Woodbridge Dam and physically 12 transport them down to a downstream release location, for 13 example, at Rio Vista where temperatures are now adequate. 14 MR. NOMELLINI: All right. So the ability to control 15 temperature in downstream areas with releases from storage 16 depends greatly on what the ambient temperature conditions 17 are at the time? 18 DR. HANSON: Oh, absolutely. That's a major factor 19 throughout this portion of the drainage. 20 MR. NOMELLINI: And with regard to controlling 21 temperature in the Delta, the legally defined Delta, is 22 there an ability to control temperature in the legally 23 defined Delta with releases of stored water? 24 DR. HANSON: There was extensive testimony -- 25 MR. NOMELLINI: I realize it's a general question. CAPITOL REPORTERS (916) 923-5447 2848 1 MR. ETHERIDGE: I was going to ask from where, you 2 asked for releases of water. 3 MR. NOMELLINI: In general. 4 DR. HANSON: In general, there was extensive 5 testimony that was provided in earlier State Board 6 proceedings that looked at the ability to control 7 temperature within the Delta from upstream releases from a 8 variety of reservoirs on the American, the Feather, the 9 Mokelumne and elsewhere. The results of those temperature 10 analyses indicated that that far down in the system that 11 there was virtually no ability to control temperatures 12 within the Delta through upstream releases. 13 MR. NOMELLINI: Okay. Well, let's take that 14 situation on the Mokelumne where we have no reasonable 15 ability to control temperature in the river with releases 16 of stored water, is it your testimony that under those 17 circumstances the fish on the Mokelumne are trapped, put in 18 a truck and then hauled down to a lower point in the 19 system? 20 DR. HANSON: Under very low flow conditions where 21 those elevated temperatures occur, for example, downstream 22 of Woodbridge Dam, that trap and truck becomes the most 23 acceptable method for preserving the survival of those fish 24 from the Mokelumne River. 25 MR. NOMELLINI: All right. And the trap and truck CAPITOL REPORTERS (916) 923-5447 2849 1 methodology is part of the plan for the Lower Mokelumne 2 River fish, is it not? 3 DR. HANSON: That is part of the Adaptive Management 4 Plan, correct. 5 MR. NOMELLINI: Okay. And that's part of the Joint 6 Settlement Agreement, is it not? 7 DR. HANSON: I have not reviewed the Joint Settlement 8 Agreement, specifically, but I would imagine that it is. 9 MR. NOMELLINI: But to your knowledge the Joint 10 Settlement Agreement didn't eliminate that component of the 11 fishery management? 12 DR. HANSON: To my knowledge Joint Settlement 13 embraced those analyses and those management strategies. 14 MR. NOMELLINI: Okay. In terms of fish in the 15 Mokelumne River, it's true, is it not, that there are 16 fall-run salmon? 17 DR. HANSON: That's true. 18 MR. NOMELLINI: And it's true, is it not, that there 19 are steelhead? 20 DR. HANSON: That is, also, true. 21 C.O. CAFFREY: Excuse me, Mr. Nomellini -- 22 MR. NOMELLINI: I have got quite a bit more. 23 C.O. CAFFREY: You do have quite a bit more. Then, 24 let's take our morning break and come back in about 12 25 minutes, then. Thank you, sir. CAPITOL REPORTERS (916) 923-5447 2850 1 (Recess taken from 10:24 a.m. to 10:37 a.m.) 2 C.O. CAFFREY: Let's find our seats, and I believe 3 Mr. Nomellini was going to continue his cross-examination. 4 MR. NOMELLINI: All right. Mr. Hanson, we had 5 identified two fish species in the Mokelumne River system, 6 fall-run salmon and steelhead. You recall that? 7 DR. HANSON: I do recall that. 8 MR. NOMELLINI: Are there any Delta smelt in the 9 Mokelumne? 10 DR. HANSON: There are Delta smelt in the lower 11 reaches of what are referred to as the Delta forks of the 12 Mokelumne. They've been collected by the Department of 13 Fish and Game. 14 MR. NOMELLINI: Is any part of the Mokelumne River 15 fish management plan directed at the Delta smelt? 16 DR. HANSON: I don't believe that there are specific 17 provisions within the JSA that are directed at Delta smelt. 18 MR. NOMELLINI: Do they need any help on the 19 Mokelumne River? 20 DR. HANSON: Delta smelt are currently a listed 21 species. There are a variety of actions that are being 22 implemented to help protect and recover those populations. 23 From that perspective, I would say that they need help 24 throughout the Delta. 25 MR. NOMELLINI: Do any need to be flushed out of the CAPITOL REPORTERS (916) 923-5447 2851 1 Delta with flows from the Mokelumne River? 2 DR. HANSON: Again, I would prefer not to 3 characterize it as flushing Delta smelt out of the Delta. 4 Delta smelt do have a planktonic life stage. The early 5 larval stages are planktonic. They rely on hydrologic 6 conditions within the Delta for dispersal and transport to 7 downstream locations. Flow is an important component for 8 that downstream dispersal. But the flow that is required 9 is a combination of both freshwater inflows in combination 10 with tidal hydraulics. 11 MR. NOMELLINI: Is it of a different magnitude than 12 the flow required for fall-run salmon to volitionally move 13 out of the Delta? 14 DR. HANSON: It is a different magnitude. 15 MR. NOMELLINI: All right. And what is that 16 difference? 17 DR. HANSON: The Delta smelt, because they typically 18 inhabit areas of the Delta further downstream than do the 19 chinook salmon and steelhead that are rearing in the 20 Mokelumne River, rely more heavily, I think, on tidal 21 hydraulics of the flushing of ebb and flood tidal 22 conditions through the Delta for dispersal and downstream 23 movement. 24 It's in combination with that tidal hydraulics 25 that flows, coming from all the tributaries, the Sacramento CAPITOL REPORTERS (916) 923-5447 2852 1 River, the Mokelumne, the San Joaquin River and all the 2 other sources provide the necessary inflow to the Delta to 3 provide for acceptable salinity conditions as well as the 4 downstream transport. 5 MR. NOMELLINI: All right. You use, "downstream 6 transport." I used, "flushing," which you didn't like. 7 Could you describe the difference between the need for 8 downstream transport and flushing, as you conceive it? 9 DR. HANSON: Downstream transport in my way of 10 thinking is the movement of Delta smelt larvae in early 11 juvenile stages in response to those Delta conditions, such 12 as tidal flows that we've talked about, that allow the 13 Delta smelt to disburse into acceptable habitats for 14 juvenile rearing including those portions of Suisun Bay. 15 The concern that has been identified through 16 analyses that were part of the Delta Native -- Native Delta 17 Fish Recovery Program, part of the analyses that Bruce 18 Herbold and Dr. Peter Boyle have presented and others, 19 indicate that Delta smelt are susceptible to what appears 20 to be higher mortality in response to very high freshwater 21 flows, those that might occur coincidence with flood 22 events, for example, that tend to flush Delta smelt further 23 downstream so that they're no longer rearing in Suisun Bay, 24 but rather are transported into San Pablo Bay. 25 We identified, and I was part of the Fish and CAPITOL REPORTERS (916) 923-5447 2853 1 Wildlife Service recovery team, we identified what we 2 considered to be stresser conditions that adversely affect 3 Delta smelt. One of those stressers that we identified was 4 high-flow conditions that would flush Delta smelt to San 5 Pablo Bay. 6 MR. NOMELLINI: So it's the speed of transport that 7 differentiates between the flushing and the transport? 8 DR. HANSON: No. It's not only the speed, but it's 9 where you end up at the end of that process. And the 10 habitat conditions, whether they are suitable or not for 11 that particular life stage when you get to the point where 12 you can now volitionally take advantage of those habitats. 13 If you're further downstream, for example, in the San Pablo 14 Bay when all of a sudden you have the developmental 15 capability to swim and select microhabitats, if those 16 habitat conditions in that area are unacceptable, then 17 you're going to have a harder time in terms of survival and 18 growth than if you're further upstream where habitat 19 conditions tend to be more suitable. 20 MR. NOMELLINI: Okay. Is it your testimony that 21 Delta smelt transport requires more than just the net Delta 22 outflow? 23 DR. HANSON: It does require more than just net Delta 24 outflow. 25 MR. NOMELLINI: Okay. And what I'm relating to is CAPITOL REPORTERS (916) 923-5447 2854 1 what I thought your testimony was as to salmon, that they 2 needed -- perhaps, I should change that. 3 A net downstream flow, is it more than the Delta 4 smelt needs something different than the salmon in terms of 5 net downstream flow? 6 DR. HANSON: They do. At the time that salmon are 7 actively migrating down, for example, in the smolt stage, 8 those fish are typically two-and-a-half to three-and-a-half 9 inches in length, 70 to 100 millimeters. The fish are 10 actively swimming. They are using a combination of 11 velocity cues, salt gradients, and a variety of other 12 environmental factors to guide their movement from the 13 tributaries downstream through the bay and out to the ocean 14 where they begin their oceanic phase of rearing. 15 Delta smelt, on the other hand, during this period 16 of their planktonic distribution are not actively swimming. 17 They don't have the swimming performance capability at that 18 life stage. They are typically half an inch in length or 19 less. They are moved by the water rather than actively 20 swimming, you know, on a broad scale. So there are some 21 very different characteristics in terms of the life 22 history, their distribution, and how they respond to 23 environmental conditions. 24 MR. NOMELLINI: All right. So planktonic-stage Delta 25 smelt need flow to move them out of the bad areas in the CAPITOL REPORTERS (916) 923-5447 2855 1 good areas? 2 DR. HANSON: Correct. 3 MR. NOMELLINI: Is that correct? 4 DR. HANSON: Correct. They are moving from the 5 spawning areas downstream into the more acceptable rearing 6 areas. 7 MR. NOMELLINI: Is this planktonic stage for Delta 8 smelt, does that involve a period from about February 9 through June? 10 DR. HANSON: It's roughly that same time period. 11 MR. NOMELLINI: And in some cases it's even July and 12 August, is it not? 13 DR. HANSON: Delta smelt are resident within the 14 Delta year-round. 15 MR. NOMELLINI: All right. Let's take the Delta 16 smelt that exists in the Mokelumne River, Lower Mokelumne 17 River, with the Delta cross channel closed, how physically 18 can water be provided to transport the planktonic stage of 19 Delta smelt in those areas other than from the Mokelumne 20 River? 21 DR. HANSON: That area of the Lower Mokelumne is 22 influenced by tidal action as well. And there's a 23 substantial influence of tidal hydraulics on the Lower 24 Mokelumne River. 25 MR. NOMELLINI: Okay. I'm talking about the CAPITOL REPORTERS (916) 923-5447 2856 1 transport flow necessary to move the Delta smelt in the 2 Lower Mokelumne out, which you described as transport. 3 DR. HANSON: Correct. 4 MR. NOMELLINI: And I'm not talking -- and I 5 understood that was different than just tidal action. This 6 is a net downstream flow, is it not? 7 DR. HANSON: It's a combination of net downstream 8 freshwater flow from upstream tributary areas in 9 combination with the internal Delta hydraulics that are 10 influenced by tidal action. 11 MR. NOMELLINI: Let me try to get at it another way. 12 DR. HANSON: Okay. 13 MR. NOMELLINI: With the Delta cross channel closed 14 and Delta smelt in the Lower Mokelumne River, is there any 15 need for flow from the Mokelumne to transport those Delta 16 smelt? 17 DR. HANSON: Flow from the Mokelumne River during 18 that springtime period would be a benefit to the downstream 19 transport of Delta smelt larvae as would flow in the lower 20 San Joaquin River, flow through Georgiana Slough, flow 21 through Three Mile Slough, they're all contributors to that 22 downstream movement. 23 MR. NOMELLINI: Okay. With regard to the location of 24 Delta smelt in the Mokelumne River, are you testifying that 25 the Delta smelt only go as far upstream as the confluence CAPITOL REPORTERS (916) 923-5447 2857 1 with the Georgiana? 2 MR. ETHERIDGE: Mr. Caffrey, if I may interject, I've 3 been patient with this line of questioning, but 4 Dr. Hanson's testimony, the written testimony submitted for 5 this proceeding focused on temperature impacts of various 6 alternatives in the Lower Mokelumne River. And this is 7 gradually proceeding further and further into testimony on 8 Delta hydraulics, which is far beyond the scope of 9 Mr. Hanson's testimony. 10 C.O. CAFFREY: Well, do you have a hydraulic expert 11 on your panel? 12 MR. ETHERIDGE: It's not part of our case in chief. 13 C.O. CAFFREY: Although cross-examination is allowed 14 to delve beyond the specific scope of the direct, I'm just 15 not sure how far Mr. Nomellini intends to take this. Maybe 16 you can tell us. 17 MR. NOMELLINI: I'd like to explain a little bit. My 18 concern is the adequacy of the settlement agreement as to 19 fulfilling the actual needs that we're trying to address in 20 the Water Quality Control Plan. It appears to me that 21 there's no other way to address these problems other than 22 the Mokelumne. 23 We've heard some testimony, I don't know what the 24 degree of the real problem is. What I wanted to do was 25 understand what fish we're dealing with in the Mokelumne, CAPITOL REPORTERS (916) 923-5447 2858 1 how they differ from the Stanislaus, Tuolumne, and Merced, 2 and what the relative contributions of those should be. 3 There was testimony that came out, you know, as to 4 a watershed at Pardee. And there's a map, you know, that 5 shows the watershed at San Joaquin. And it's only 6 two-and-a-half percent, or something. Anyway, I was going 7 to pursue that. And I think it's relevant, but, you 8 know -- 9 C.O. CAFFREY: I'm going to allow you to pursue that 10 line of questioning. If you go beyond the expertise of the 11 witnesses, they should simply state that as their answer. 12 All right. Please, proceed. 13 MR. NOMELLINI: All right. Going back with regard to 14 where Delta smelt are in the Lower Mokelumne River, are 15 you -- well, do any of those Delta smelt move upstream of 16 the confluence of the Mokelumne and Georgiana Slough? 17 DR. HANSON: I don't know specifically. The 18 Department of Fish and Game collects that data. It would 19 be available through the Bay-Delta Office, but I don't have 20 it specifically. 21 MR. NOMELLINI: All right. Going back on our fish in 22 the Mokelumne, we have fall-run salmon, we have steelhead, 23 we have Delta smelt. Do we have trout? 24 DR. HANSON: There are trout in the upper portion of 25 the watershed. There are also resident trout that occur CAPITOL REPORTERS (916) 923-5447 2859 1 downstream of Camanche Dam. 2 MR. NOMELLINI: Okay. Any other significant -- well, 3 strike, "significant." I know I'm going to get in trouble 4 there. 5 Let's stay with fall-run salmon, steelhead and 6 Delta smelt. The focus of the Mokelumne River Fishery Plan 7 is on fall-run salmon and steelhead, is it not? 8 DR. HANSON: That is correct. 9 MR. NOMELLINI: Okay. 10 DR. HANSON: Although, I'd like to point out that the 11 agreement has been reviewed by the U.S. Fish and Wildlife 12 Service under the provisions of the Endangered Species Act. 13 They needed to review the hydraulics. They needed to 14 review a variety of things as it pertains to Delta smelt. 15 MR. NOMELLINI: So Delta smelt would be included in 16 that; is that correct? 17 DR. HANSON: That is correct. 18 MR. NOMELLINI: Okay. So we have three species. Are 19 there any others that are the focus of the Mokelumne River 20 Fishery Plan? 21 DR. HANSON: To my knowledge there are no other 22 species that were a focus of the agreement. There were 23 other species that were considered as part of the Mokelumne 24 River ecosystem, but they were not a focus of this specific 25 agreement. CAPITOL REPORTERS (916) 923-5447 2860 1 MR. NOMELLINI: Now, with regard to steelhead, do 2 they have any particular needs for summer flow? 3 DR. HANSON: They do have a need for both summer flow 4 as well as acceptable temperatures for oversummering during 5 their rearing stage. 6 MR. NOMELLINI: And are those needs different than 7 the needs of fall-run salmon? 8 DR. HANSON: Those needs are somewhat different, yes. 9 MR. NOMELLINI: So when we manage flows from a 10 reservoir to take care of the needs of fall-run salmon and 11 steelhead, we must balance the needs of the two between 12 spring flows and summer flows; is that correct? 13 DR. HANSON: That is correct. And that was part of 14 the analyses that led to the management plan. 15 MR. NOMELLINI: All right. Now, this truck and haul 16 part of the plan for dry and critical years on the 17 Mokelumne, does that include steelhead? 18 DR. HANSON: It was not intended to focus on 19 steelhead. They tend to migrate out earlier in the 20 springtime. But to the extent that steelhead were 21 collected during that period when adverse temperatures 22 occur downstream of Woodbridge Dam, they would be collected 23 and released as part of that program. But it was not part 24 of the specific objective of the trap and truck program. 25 MR. NOMELLINI: All right. Focusing now on the -- a CAPITOL REPORTERS (916) 923-5447 2861 1 comparison of the Mokelumne to the Stanislaus, Tuolumne, 2 and Merced, with regard to the fish species of major 3 concern on the Stanislaus, are they different than on the 4 Mokelumne? 5 DR. HANSON: There are fall-run chinook salmon on the 6 Stanislaus. There are, certainly, concerns with respect to 7 steelhead. With regard to Delta smelt, their distribution 8 on the San Joaquin River drainage does not extend, to my 9 knowledge, as far upstream as the Stanislaus. It's further 10 downstream in the Delta portion of the San Joaquin River. 11 MR. NOMELLINI: All right. With regard to the 12 Tuolumne, how would the fish species of concern in the 13 Tuolumne be different, if any, in comparison to those in 14 the Mokelumne? 15 DR. HANSON: They would be virtually the same as what 16 I have described for the Stanislaus. 17 MR. NOMELLINI: And with regard to the Merced? 18 DR. HANSON: They would also be the same as the 19 upstream San Joaquin tributaries. 20 MR. NOMELLINI: So the Merced would be similar to the 21 Mokelumne in terms of fall-run salmon and steelhead? 22 DR. HANSON: They would. And the Delta smelt would 23 continue to occur further downstream in the San Joaquin. 24 MR. NOMELLINI: All right. Would the truck -- trap 25 and truck segment of the fishery plan for the Mokelumne be CAPITOL REPORTERS (916) 923-5447 2862 1 relevant to the same fish species on the Stanislaus? 2 DR. HANSON: It would not. It would require, under 3 that condition, that a fish collection structure, i.e., a 4 dam, similar to that that occurs at Woodbridge would be 5 necessary, or some other method for collecting those fish. 6 MR. NOMELLINI: And with regard to the Tuolumne, your 7 testimony is the same? 8 DR. HANSON: It is. 9 MR. NOMELLINI: And with regard to the Merced? 10 DR. HANSON: It is. 11 MR. NOMELLINI: So the difference is in terms of a 12 fish plan for the fall-run salmon and steelhead among the 13 Mokelumne, Stanislaus, Tuolumne, and Merced is whether or 14 not there's a facility to trap the fish on those rivers? 15 DR. HANSON: On the Mokelumne there is the existing 16 structure of the Woodbridge Dam. There are fish traps that 17 are installed in that facility for purposes of monitoring 18 and evaluating juvenile downstream migrants. That provides 19 an opportunity to collect those fish and simply to take 20 advantage of that opportunity during those years when 21 mortality further downstream is expected to be very high 22 because of high temperatures. There is no comparable fish 23 collection structures on the Stanislaus, Merced, or 24 Tuolumne. 25 MR. NOMELLINI: So under high temperature conditions, CAPITOL REPORTERS (916) 923-5447 2863 1 dry and critical years, the fisheries of the Stanislaus, 2 Tuolumne and Merced are going to suffer because of the 3 inability to control temperature with releases from 4 storage; is that correct? 5 DR. HANSON: That is correct. And we testified as 6 part of the San Joaquin proceedings that adverse 7 temperature conditions have been identified as a 8 significant environmental factor influencing the survival 9 of juvenile salmon emigrating from those San Joaquin River 10 tributaries. 11 MR. NOMELLINI: Is there any way we can take care of 12 that problem? 13 DR. HANSON: There are some methods that would, at 14 least, certainly, help in that regard. Vegetation 15 planning, riparian planting that provides additional 16 shading for the river corridor, helps reduce the 17 temperature and helps reduce the increase in temperature as 18 you move further downstream. Flows from the tributaries 19 and other factors are also contributors to that. 20 MR. NOMELLINI: All right. If you didn't have the 21 truck and haul -- trap and truck, excuse me, component of 22 the Mokelumne River Fishery Plan, would you recommend that 23 there be greater releases from storage to the Lower 24 Mokelumne River for the protection of the fall-run salmon 25 and steelhead? CAPITOL REPORTERS (916) 923-5447 2864 1 DR. HANSON: I have not done the specific analyses 2 that would be required to really evaluate those tradeoffs. 3 My concern would be that the occasions where you do trap 4 and truck occur relatively infrequently, they're under 5 those dry and critical years. 6 If we were to substantially increase releases from 7 Camanche and Pardee Reservoirs during those dry and 8 critical years for purposes of maintaining cooler 9 temperatures downstream of Woodbridge Dam, my concern would 10 be that we would exhaust the available cold water within 11 the reservoirs and would result in adverse temperature 12 conditions occurring for steelhead that are oversummering 13 within the river. 14 MR. NOMELLINI: All right. Now, do you have those 15 same concerns for temperature on the Stanislaus? 16 DR. HANSON: I have not done the specific analyses on 17 the Stanislaus, but these same issues would need to be 18 addressed. 19 MR. NOMELLINI: Okay. Even though you haven't done 20 the analysis, do you have any opinion as to whether or not 21 the temperature concerns are similar? 22 DR. HANSON: My opinion, and it's not supported by a 23 tremendous amount of detailed information, is that the 24 issues are the same. And that releases from those 25 reservoirs on the San Joaquin River tributaries to maintain CAPITOL REPORTERS (916) 923-5447 2865 1 temperature conditions relatively far down in the system, 2 particularly in those areas of the San Joaquin River 3 downstream of the confluence with the tributaries, would 4 require a tremendous amount of water and would very likely 5 exhaust the available cold water in the upstream rearing 6 areas, but that's speculation on my part. 7 MR. NOMELLINI: All right. With regard to the 8 Tuolumne, would your opinion as to the similarity of 9 temperature concerns be similar? I mean, would your 10 testimony be similar to what you just said on the 11 Stanislaus? 12 DR. HANSON: It would. 13 MR. NOMELLINI: And the Merced as well? 14 DR. HANSON: It would also be similar. And those 15 require additional analyses before anything more definitive 16 would be available. 17 MR. NOMELLINI: Does the -- and I'm almost done with 18 the fishery stuff. Does the State Water Project and the 19 Central Valley Project export pumping have any impact on 20 the Mokelumne River fish? 21 DR. HANSON: Yes. 22 MR. NOMELLINI: And could you describe that impact? 23 DR. HANSON: The impact is twofold. One is that on 24 the Mokelumne River as part of the scientific studies that 25 East Bay MUD has been conducting throughout the 1990s, they CAPITOL REPORTERS (916) 923-5447 2866 1 have been releasing coded-wire tag marked juvenile salmon 2 and steelhead both as smolts and also as yearlings. 3 Those fish after release from the Mokelumne River 4 hatchery have been, subsequently, captured in the fish 5 salvage operation at both the state and federal water 6 projects providing direct documentation that there is some 7 level, and I'm not testifying as to the magnitude of that 8 level, but there is a presence of marked fish from the 9 Mokelumne River that show up in the state and federal 10 project salvage. 11 There is also speculation, albeit not 12 quantitative, as to how state and federal water project 13 operations influence Delta hydraulics thereby influencing 14 the rate of downstream migration, the time period that 15 those fish are within the Delta, indirect sources of 16 mortality that may be attributable to such factors as 17 increased vulnerability to predation, or increased 18 vulnerability to entrainment from internal Delta 19 diversions. 20 MR. NOMELLINI: All right. Is there a correlation 21 between river flow and survival of Mokelumne River salmon 22 smolts? 23 DR. HANSON: To my knowledge there is no quantitative 24 data as of yet that provides the kind of relationship 25 between salmon smolt survival and river flow such as that CAPITOL REPORTERS (916) 923-5447 2867 1 that we were discussing either for the Sacramento or the 2 San Joaquin Rivers. 3 MR. NOMELLINI: So it's your testimony that there's 4 no correlation in any of those rivers? 5 DR. HANSON: No. It's my testimony that on the 6 Sacramento and San Joaquin Rivers the necessary coded-wire 7 tag survival studies have been underway for a much longer 8 period of time. And so we do have data for those rivers 9 that help us evaluate what those potential relationships 10 might be. On the Mokelumne River my testimony is simply 11 that we don't have the data necessary to evaluate whether a 12 relationship between flow and smolt survival exists. 13 MR. NOMELLINI: And you have no opinion that the same 14 correlation, whatever it is, would not apply to the 15 Mokelumne River salmon smolt? 16 DR. HANSON: My opinion is that there would be a -- I 17 think there would be a relationship between salmon smolt 18 survival and flows released from the Lower Mokelumne River 19 particularly during that period of spring out-migration. 20 MR. NOMELLINI: All right. 21 DR. HANSON: It's a matter of being able to quantify 22 that relationship and to be able to say, definitively, here 23 is the relationship between flow and survival on a 24 quantitative basis. 25 MR. NOMELLINI: And so if we gathered such CAPITOL REPORTERS (916) 923-5447 2868 1 information on the Mokelumne, then, would the Mokelumne 2 River fish plan have to be modified based on such 3 information? 4 DR. HANSON: East Bay MUD in cooperation with a 5 variety of other agencies that participate in the Mokelumne 6 River technical advisory committee review and evaluate the 7 monitoring programs and the experimental design of the 8 plans that East Bay MUD carries out to evaluate fisheries's 9 conditions on the Mokelumne, including the use of 10 coded-wire tagged fish for survival studies. 11 It's my opinion that as that information becomes 12 available it will be made, you know, as a peer review by 13 the Mokelumne River tac they will evaluate that data. And 14 they have not proven in the past to be shy about sharing 15 their findings with others. And I would imagine that that 16 information, then, would be used as a basis for at least 17 considering alternatives, or modification, or refinements 18 to any aspect of the various plans. But as of yet that 19 information is not available. 20 MR. NOMELLINI: Okay. Thank you. Mr. Vogel, since 21 you were nodding back there, I didn't mean to leave you 22 completely out of this process. Mr. Lampe, don't go far. 23 This is going to be very brief. 24 Are there any significant differences between your 25 opinion and Mr. Hanson's that you would like to state with CAPITOL REPORTERS (916) 923-5447 2869 1 regard to the general line of questioning that I had? 2 MR. VOGEL: I suppose it would be inappropriate to 3 ask his answer right back? 4 MR. NOMELLINI: I mean anything significant, do you 5 think you would not agree that is all? I don't want to go 6 through that whole process with you. 7 MR. VOGEL: Quite frankly, you covered so much ground 8 it would really be difficult. You would have to specify 9 what topic. 10 MR. NOMELLINI: All right. Do you agree with the 11 temperature testimony as to the importance of balancing 12 releases of storage to take care of fall-run salmon and the 13 needs for steelhead? 14 MR. VOGEL: For steelhead? 15 MR. NOMELLINI: Right. 16 MR. VOGEL: Well, in general, yes. That is a 17 management strategy that is commonly employed in just about 18 all major Central Valley reservoirs. 19 MR. NOMELLINI: All right. Do you agree with me, do 20 you not, that steelhead need summertime flow? 21 MR. VOGEL: Yes. 22 MR. NOMELLINI: And would you agreed that the need 23 for flow to create the volition in salmon smolt to migrate 24 out of the Delta is related to the net flow in the river? 25 MR. VOGEL: On that particular topic I would not have CAPITOL REPORTERS (916) 923-5447 2870 1 as definitive an opinion as Chuck Hanson provided you. And 2 that actually is out of the scope of my testimony with the 3 exception of the sections where I discussed some of the 4 telemetry work that has been done on behalf of East Bay 5 MUD. 6 MR. NOMELLINI: Is it your opinion that they don't 7 require a net downstream flow? 8 MR. VOGEL: No. That's not -- I would not 9 characterize my opinion as that. Basically what we have 10 observed through our telemetry work where we planted 11 miniature radio transmitters on yearling hatchery fish is 12 that the relationship of fish migration through the Delta 13 channels is considerably more complex than we previously 14 anticipated. There are a wide variety of factors that 15 apparently influence the behaviors of migration to the 16 Delta. So I don't have a good definitive answer on that 17 particular topic. 18 MR. NOMELLINI: But it raises the suspicion that flow 19 would have a lesser part to play than previously thought? 20 MR. VOGEL: I don't necessarily know that answer. We 21 accumulated a massive amount of data that's still 22 preliminary. It's readily apparent that the tidal 23 influence has a tremendous affect on smolt migration 24 through the Delta channels. 25 MR. NOMELLINI: Okay. That's all I have for CAPITOL REPORTERS (916) 923-5447 2871 1 Mr. Vogel. Mr. Lampe -- thank you. 2 In your testimony at page two on Exhibit 10, up at 3 the top, you talk about East Bay MUD's fair share for 4 meeting the Water Quality Control Plan. 5 MR. LAMPE: Correct. 6 MR. NOMELLINI: Is it your understanding that East 7 Bay MUD has a responsibility to help meet the 1995 Water 8 Quality Control Plan? 9 MR. LAMPE: Yes. 10 MR. NOMELLINI: Is it your understanding that East 11 Bay MUD has a responsibility for meeting salinity control 12 requirements in the Delta? 13 MR. LAMPE: I believe that East Bay MUD shares a 14 responsibility for ensuring that there are adequate 15 conditions in the Delta. 16 MR. NOMELLINI: All right. With regard to the 17 portion of the Mokelumne River below Woodbridge but above 18 the Delta, does East Bay MUD, in your understanding, have a 19 responsibility to provide protection to fish in that 20 segment of the Mokelumne River? 21 MR. LAMPE: I believe that East Bay MUD shares a 22 responsibility, yes. 23 MR. NOMELLINI: Does East Bay MUD in your 24 understanding have a responsibility to share in the 25 mitigation of State Water Project and Central Valley CAPITOL REPORTERS (916) 923-5447 2872 1 Project impacts to fish? 2 MR. LAMPE: I don't believe that there is any direct 3 responsibility there. But, again, the concept that the 4 District embraces is that we share in the reasonable 5 beneficial uses of water in the state. And, thus, it's the 6 State Board's responsibility for determining reasonable 7 balance between all beneficial uses. 8 MR. NOMELLINI: All right. Mr. Myers, on your 9 Exhibit 2, page 5 you have a Figure 3 that shows the 10 Mokelumne River percentage of Delta unimpaired flows. Is 11 that correct? 12 MR. MYERS: That's correct. 13 MR. NOMELLINI: And you calculated that to be 14 two-and-a-half percent? 15 MR. MYERS: Yes, on the average. 16 MR. NOMELLINI: And other east side streams on that 17 figure -- do you have that figure on an overhead, by 18 chance? 19 MR. MYERS: Yes. 20 MR. NOMELLINI: My last imposition. All right. 21 Calling your attention to that Figure 3 on page 5 of East 22 Bay MUD Exhibit 2, Mr. Myers, the other east side streams 23 that are shown to be 3.1 percent, what are those streams? 24 MR. MYERS: Those would be the Cosumnes and the 25 Calaveras. CAPITOL REPORTERS (916) 923-5447 2873 1 MR. NOMELLINI: Okay. And, then, on the San Joaquin 2 River side you would have which stream? 3 MR. MYERS: All the streams that were tributary -- 4 that are tributary to the San Joaquin. 5 MR. NOMELLINI: Okay. Have you made any attempt to 6 compare the flows in the Mokelumne River fish plan for 7 April and May versus the flows on the Stanislaus River for 8 fish purposes? 9 MR. MYERS: No, I have not. 10 MR. NOMELLINI: Have you attempted to compare the 11 relative unimpaired flow on the Mokelumne versus the 12 unimpaired flow on the Stanislaus? 13 MR. MYERS: I don't think I have. 14 MR. NOMELLINI: All right. And would your testimony 15 be the same with regard to the Tuolumne and the Merced? 16 MR. MYERS: Yes. 17 MR. NOMELLINI: Is there any difference, in your 18 opinion, in comparing the Mokelumne River to other 19 tributaries to the Delta that is related to the fact water 20 is exported from the river system outside of the watershed? 21 MR. MYERS: I really don't understand the question. 22 Could you rephrase that, please? 23 MR. NOMELLINI: All right. The purpose of this 24 figure is to show that the Mokelumne has a relatively small 25 contribution to the Delta overall; is that correct? CAPITOL REPORTERS (916) 923-5447 2874 1 MR. MYERS: Yes. 2 MR. NOMELLINI: All right. Is it important to take 3 into consideration in comparing the Mokelumne to other east 4 side streams with regard to unimpaired flow to consider the 5 amount of water that is exported from the watershed? 6 MR. ETHERIDGE: I request for a clarification as to: 7 Is it important for whom? 8 MR. NOMELLINI: In terms of comparing the relative 9 responsibility for contributing flow to the system, if you 10 have any opinion. 11 MR. MYERS: I'm still not sure I understand the 12 question. 13 MR. NOMELLINI: All right. Let's ask it another way. 14 In terms of flow into the Delta, is this a difference on 15 river systems where there are exports outside of the 16 watershed versus those that have no exports outside of the 17 watershed? 18 MR. MYERS: What I've shown in Figure 3 is the 19 unimpaired flows to the Delta. 20 MR. NOMELLINI: Okay. So this would take into 21 consideration what actually gets into the Delta? 22 MR. MYERS: No. This is the unimpaired flows to the 23 Delta. 24 MR. NOMELLINI: Okay. And that does not consider 25 what, actually, would flow into the Delta, does it? CAPITOL REPORTERS (916) 923-5447 2875 1 MR. MYERS: That's correct. 2 MR. NOMELLINI: And that's because some of the water 3 is diverted upstream; is that correct? 4 MR. MYERS: And that's true on all the tributaries 5 that I've shown on this map. 6 MR. NOMELLINI: All right. Now, is there a 7 difference in the impact on actual flow to the Delta when 8 water is exported outside the watershed versus when it is 9 not? 10 MR. MYERS: I -- I think that's a very complex 11 question whether water is diverted within a watershed, or 12 outside a watershed, water might be diverted. 13 MR. NOMELLINI: All right. Last question: Is there 14 any return flow to the Delta from the water diverted by 15 East Bay MUD at Pardee? 16 MR. MYERS: There is for water that's diverted from 17 storage, but not from water that's diverted from the 18 aqueduct except for that that goes back into San Francisco 19 Bay. 20 MR. NOMELLINI: Let me make one check of my notes and 21 I think I'm finished. That's all I have. Thank you. And 22 thank you, members of the panel. 23 C.O. CAFFREY: Thank you, Mr. Nomellini. That 24 completes the cross-examination from the parties. Let me 25 ask staff if they have any questions of the panel? CAPITOL REPORTERS (916) 923-5447 2876 1 MR. HOWARD: No questions. 2 C.O. CAFFREY: No questions from the staff. Anything 3 from the Board Members? 4 MEMBER DEL PIERO: I have one. 5 C.O. CAFFREY: Mr. Del Piero. 6 MEMBER DEL PIERO: Mr. Hanson? 7 MR. BRANDT: Mic, please. 8 C.O. CAFFREY: Microphone. 9 ---oOo--- 10 CROSS-EXAMINATION OF EAST BAY MUNICIPAL UTILITY DISTRICT 11 BY THE BOARD 12 MEMBER DEL PIERO: Mr. Hanson, following up on a 13 question asked by Mr. Nomellini, in regards to the impact 14 of flow on the Delta smelt in the Lower Mokelumne, two 15 questions. 16 One, in regards to the impact of the flow of the 17 Delta smelt in the Lower Mokelumne, are you aware of any 18 direct relationship between the gate that allows Sacramento 19 River water to be allowed to flow through the Central Delta 20 in terms of impact upon the Delta smelt there? 21 DR. HANSON: In terms of the Delta cross channel gate 22 operations? 23 MEMBER DEL PIERO: Yes, in relation to the flow 24 regiments that have been proposed on the Mokelumne. 25 DR. HANSON: I'm not aware of any specific CAPITOL REPORTERS (916) 923-5447 2877 1 quantitative analyses of those relationships. 2 MEMBER DEL PIERO: Have any of those studies either 3 been conducted, to your knowledge, whether you know what 4 the results are or not, have those studies been conducted 5 or contemplated? 6 DR. HANSON: The only studies that I'm aware of that 7 would address that specific issue are those that have been 8 done using what's been referred to as the Delta Particle 9 Tracking Model, a model developed by the Department of 10 Water Resources that allows for computer simulations of the 11 movement of particles, planktonic Delta smelt sort of as a 12 representative, in response to different hydraulic 13 conditions. And DWR has been doing particle tracking 14 modeling -- 15 MEMBER DEL PIERO: That doesn't relate directly to 16 the biological impact, does it? 17 DR. HANSON: It does not. 18 MEMBER DEL PIERO: Okay. Next question, in terms of 19 the tagging that has been done on both chinook salmon and 20 steelhead and the studies that have been conducted over the 21 last several years by East Bay MUD in regards to their 22 out-migration through the Lower Mokelumne through the Delta 23 and also, perhaps, in regards to the comments made about 24 those fish that are being picked up at the pumps, in terms 25 of flow, again, have you been able to correlate through the CAPITOL REPORTERS (916) 923-5447 2878 1 studies being done whether or not there is a direct 2 relationship between the number of fish that are collected 3 when the Delta cross channel is opened as opposed to when 4 the Delta cross channel is closed? 5 DR. HANSON: Those, to my knowledge, those 6 correlations have not been able to be performed. 7 MEMBER DEL PIERO: Why? 8 DR. HANSON: For two reasons. One, is that the 9 number of studies that have been performed is very limited. 10 So we have very few data points. The second is that those 11 studies have largely, certainly for salmon smolts, been 12 performed during the springtime period. The Delta cross 13 channel is now closed during that time period. 14 So we have virtually no information that allows us 15 to compare under similar hydrologic conditions smolt 16 survival when the cross channel is open versus when it's 17 closed. We're trying to use some of the Fish and Wildlife 18 Service data to do that analysis, but that's not yet 19 completed. 20 MEMBER DEL PIERO: Okay. Do you agree with what he 21 just said based on your information of the studies that 22 you've been conducting? 23 MR. VOGEL: The preliminary results we have to date 24 concerning the coded-wire tag studies have been formulated 25 so that the design is to examine some of these CAPITOL REPORTERS (916) 923-5447 2879 1 relationships in the Delta. Specifically, we've begun 2 releasing test groups of fish down by Thornton down in the 3 Delta portion of the Mokelumne River. 4 MEMBER DEL PIERO: Yes. 5 MR. VOGEL: And compare those recoveries with fish 6 released at Jersey Point. And the 1996 results, if I can 7 correctly recollect, demonstrate that there was a higher 8 survival rate for those fish released at Thornton -- excuse 9 me, released at Jersey Point as compared to Thornton. 10 Also -- 11 MEMBER DEL PIERO: What type of percentages? 12 MR. VOGEL: Actually, both percentages are quite low, 13 if I remember, but I can't recall the exact proportional 14 difference. 15 MEMBER DEL PIERO: Okay. 16 MR. VOGEL: It indicated there was a trend there. 17 But, again, I would be like Chuck Hanson, cautious, that 18 was just one data point. So you can take it for what it's 19 worth. In addition, we attempted to examine that very 20 issue using the radio telemetry fish. We released fish at 21 various portions in the Mokelumne forks of the Delta 22 channels. And the idea we wanted to have a design to 23 examine fish behavior and fish migration routes with the 24 Delta gates opened as compared to closed. And because of 25 the biological opinions and the Water Quality Control CAPITOL REPORTERS (916) 923-5447 2880 1 Plan -- 2 MEMBER DEL PIERO: You can't do it. 3 MR. VOGEL: There were insufficient times when we had 4 the gates opened. And I share your frustration, because we 5 had high hopes to help elucidate the answers to those 6 questions. 7 MEMBER DEL PIERO: Mr. Chairman, the reason I ask 8 those questions is when I was Hearing Officer on the 9 Mokelumne River back in 1994 those were substantive issues 10 for which there were no answers. Apparently, we haven't 11 progressed very much in the last four years in terms of 12 attempting to resolve that. Thank you very much. 13 C.O. CAFFREY: Thank you, Mr. Del Piero. Any other 14 questions from the Board Members? 15 MEMBER FORSTER: I have a question. 16 C.O. CAFFREY: Ms. Forster. 17 MEMBER FORSTER: I have a question and this is for 18 Mr. Lampe. In looking at your agreement -- 19 MR. LAMPE: This is the Memorandum of Understanding, 20 or the Joint Settlement Agreement that was distributed by 21 U.S. Fish and Wildlife this morning, or by the Interior 22 this morning? 23 MEMBER FORSTER: That's right. I didn't read that. 24 That's different. This is not the same thing as your 25 agreement for the Bay-Delta Hearings, right? CAPITOL REPORTERS (916) 923-5447 2881 1 MR. LAMPE: Is this the Department of Interior that 2 you're referring to, that's the Department of Interior 3 exhibit? 4 MEMBER FORSTER: FERC Project 2916-004? 5 MR. LAMPE: Yes, that's correct. The flow -- the 6 appendix flows in this agreement are identical to the flows 7 that we offer in this proceeding. 8 MEMBER FORSTER: Okay. I guess my question, and I 9 don't have your MOU in front of me, do you have some of the 10 same stipulations in your agreement that the San Joaquin 11 does? Do you have all the mediation, arbitration, all of 12 those kind -- you know, if one member didn't like what was 13 going on, then they would call together a group and mediate 14 what was going to happen. Is yours structured that way, or 15 is it a little bit less specific? 16 MR. LAMPE: I'm -- I'm not familiar with the 17 specifics of the San Joaquin, so I can't make direct 18 comparisons. But I -- in terms of the direction I think of 19 your question, our Memorandum of Understanding constitutes 20 approximately two-and-a-half pages with the attached 21 flows -- 22 MEMBER FORSTER: Okay. 23 MR. LAMPE: -- which is the total of that agreement. 24 So as you can see, it's a relatively straightforward 25 Memorandum of Understanding in support of the flows. CAPITOL REPORTERS (916) 923-5447 2882 1 Our -- as I understand the San Joaquin, it's a much more 2 complex situation in approach. Our agreement, basically, 3 is to a very specific flow regimen for the Mokelumne River. 4 And in consequence we're able to accomplish that in a 5 relatively short MOU. 6 In terms of the provisions for entities to 7 determine that there are, perhaps, changed conditions that 8 would require them to reconsider, there's a specific 9 provision in this Memorandum of Agreement that says that if 10 one of the parties identifies what, in their judgment, is a 11 significant changed condition, they can ask that all 12 parties get together to discuss that and that a joint 13 agreement would be made with respect to whatever that issue 14 might be. 15 MEMBER FORSTER: I remember reading it now. Thank 16 you. This was confusing. I didn't know what I was reading 17 here. 18 C.O. CAFFREY: All right. That completes all the 19 cross-examination of the panel. Mr. Etheridge, based on 20 our discussion yesterday, I am anticipating you're going to 21 have some redirect, am I correct? 22 MR. ETHERIDGE: What I'd like to do, Mr. Caffrey, is, 23 perhaps, we could break for lunch now and we can at the 24 lunch break discuss it amongst ourselves whether we have 25 redirect and the extent of that. CAPITOL REPORTERS (916) 923-5447 2883 1 C.O. CAFFREY: All right. Before we do that, let me 2 ask Mr. Sandino if he has any redirect. 3 MR. SANDINO: We do have some redirect. 4 C.O. CAFFREY: All right. Then, why don't we go to 5 Mr. Sandino first. And you can have some discussion, that 6 will eat up a little bit. One thing I don't like to do is 7 start the lunch hour too early, because it makes for a 8 longer afternoon. That's a little bit of a commentary 9 about my own personal constitution, but, Mr. Etheridge, 10 that would give you, hopefully, an opportunity to -- 11 MR. ETHERIDGE: Right. 12 C.O. CAFFREY: And, then, if you're still not ready, 13 or don't know, perhaps, then, break for lunch. 14 MR. BRANDT: Mr. Chairman? 15 C.O. CAFFREY: Mr. Brandt. 16 MR. BRANDT: Just a plan of order, I guess. Do we 17 have an opportunity to do one follow-up question to 18 Ms. Forster's question? I don't know if that fits in this 19 process or not. 20 C.O. CAFFREY: No, you would have other 21 opportunities -- Mr. Birmingham was offering something. 22 MR. ETHERIDGE: If I may, Mr. Caffrey, on that point 23 that would, essentially, constitute a second round of 24 cross-examination, it seems to me. You go through all the 25 parties with another round of cross-examination. CAPITOL REPORTERS (916) 923-5447 2884 1 C.O. CAFFREY: There are other opportunities in which 2 the parties can comment, perhaps, rebuttal, perhaps, 3 closing argument. Otherwise, there would be no end to the 4 process. 5 MR. BRANDT: I'll see what happens on redirect and 6 consider it at that time. 7 C.O. CAFFREY: Thank you, Mr. Brandt. 8 Mr. Sandino, good morning, sir. 9 MR. SANDINO: I have a few questions for Mr. Russell 10 relating to the backstop question. 11 C.O. CAFFREY: All right, sir. 12 ---oOo--- 13 REDIRECT EXAMINATION OF CALIFORNIA 14 DEPARTMENT OF WATER RESOURCES 15 BY DAVID A. SANDINO 16 MR. SANDINO: Mr. Russell, do you recall you were 17 asked some questions yesterday about DWR backstopping a 18 fair share of the East Bay MUD settlement? 19 MR. RUSSELL: Yes, I do. 20 MR. SANDINO: Could you clarify for the Board, what 21 is the purpose of DWR's proposal to backstop its share of 22 the settlement? 23 MR. RUSSELL: Yes, I will. The purpose of the 24 backstop is to encourage settlements and to avoid 25 transferring responsibility to other parties that would CAPITOL REPORTERS (916) 923-5447 2885 1 have been East Bay MUD's -- that would have been East Bay 2 MUD's absent the agreement. 3 MR. SANDINO: How would the East Bay MUD backstop 4 work? 5 MR. RUSSELL: For example, if the Board accepts the 6 settlement as the East Bay MUD's responsibility to meet 7 Delta protections, and the imposed allocation system in 8 Phase VIII results in East Bay MUD being required to 9 contribute more than the flows in the settlement, then the 10 Department would provide its fair share of that additional 11 flow to ensure that the Delta protections are met from the 12 East Bay MUD's responsibility. If on the other hand, the 13 flows are less, then there would be no responsibility for 14 the Department to provide flows. 15 MR. SANDINO: When you say, "flows are less," what do 16 you mean by that? 17 MR. RUSSELL: If the Board allocates less flow than 18 what is in the East Bay MUD settlement. 19 MR. SANDINO: And this is in Phase VIII? 20 MR. RUSSELL: And this would be in Phase VIII, 21 correct. 22 MR. SANDINO: Are you familiar with the flow 23 alternatives in the Draft EIR prepared for this hearing? 24 MR. RUSSELL: I am. 25 MR. SANDINO: Assuming the Board accepts the East Bay CAPITOL REPORTERS (916) 923-5447 2886 1 MUD's settlement, does the magnitude of DWR's backstop 2 responsibility depend on the flow alternative ultimately 3 adopted by the Board in Phase VIII? 4 MR. RUSSELL: Yes, it does. 5 MR. SANDINO: Can you explain how the backstop would 6 vary then? 7 MR. RUSSELL: Yes, I will. Under flow alternative 8 one, which is the D-1485 flow alternative, or under flow 9 alternative two, which is the 1995 Water Quality Control 10 Plan alternative, the Delta protections are provided by 11 project operations. And, therefore, there would be no 12 backstop. 13 However, under flow alternatives three, four, and 14 five when the responsibility to other parties are being 15 allocated by the Board, assuming that they go along with 16 one of those combinations, then the Department or State 17 Water Project would backstop that portion, the difference 18 between what comes out of the settlement and what would be 19 required of East Bay MUD. 20 MR. SANDINO: Of alternatives three, four and five, 21 which of those alternatives would DWR's backstop obligation 22 be the greatest? 23 MR. RUSSELL: It would be as a range now in 24 alternative five, which would require the most from the 25 individual watersheds. And, therefore, the settlement CAPITOL REPORTERS (916) 923-5447 2887 1 values being identified already then the difference would 2 be made up by DWR's share and would make up the difference. 3 MR. SANDINO: Assuming that DWR's backstop 4 requirement is adopted by the Board, would the actual 5 amount of the backstop depend on the hydrology of 6 particular years? 7 MR. RUSSELL: Yes. This is an important fact. Right 8 now we're using the historic hydrology as an indicator. On 9 day-to-day operations, that would reflect whatever rainfall 10 patterns were occurring. And so it would depend on what 11 the actual hydrology was occurring at that time. So that's 12 a day-to-day operation. 13 MR. SANDINO: Do you view this East Bay MUD 14 settlement as a benefit to the State Water Project? 15 MR. RUSSELL: Yes, I do. 16 MR. SANDINO: Why do you? 17 MR. RUSSELL: Compared to what we're doing right now, 18 they would be providing more flows through the Mokelumne 19 system into the Delta, in which case it would be of a 20 benefit to the projects under the present conditions. 21 MR. SANDINO: I don't have any other questions. 22 C.O. CAFFREY: All right. Thank you, Mr. Sandino. I 23 see Mr. Etheridge has left. I was wondering -- 24 UNIDENTIFIED MAN: I think he stepped out 25 momentarily, Chairman Caffrey. He should be right back. CAPITOL REPORTERS (916) 923-5447 2888 1 C.O. CAFFREY: All right. I believe while we're 2 waiting, Ms. Forster has a clarifying question. 3 ---oOo--- 4 CROSS-EXAMINATION OF DEPARTMENT OF WATER RESOURCES 5 BY THE BOARD 6 MEMBER FORSTER: When you use the word, "fair share," 7 and you're explaining the backstop, have you talked to 8 other entities that would be responsible? It seems to me 9 in the discussions that went on this morning, the Bureau 10 would be named as one of the people that would come up with 11 a fair share. 12 Has that been calculated in, or are you 13 assuming -- how do you assume what your fair share is and, 14 then, what the void is? 15 MR. RUSSELL: Okay. Thank you. Again, on a 16 day-to-day basis it would depend on the hydrology. And on 17 a day-to-day basis we are operating under the coordinated 18 operations agreement which splits the responsibilities for 19 Delta protections. 75 percent responsible by the federal 20 government and 25 percent by the state government. 21 MEMBER FORSTER: Okay. 22 MR. RUSSELL: Qualification, that's during balanced 23 conditions. 24 MEMBER FORSTER: Okay. 25 C.O. CAFFREY: Mr. Etheridge, were you planning to CAPITOL REPORTERS (916) 923-5447 2889 1 add any redirect, or do you know yet? 2 MR. ETHERIDGE: Actually, I do know, Mr. Caffrey. 3 Given the range of the District's information presented in 4 the District's own case in chief and the breadth of 5 information covered in responses to questions on 6 cross-examination, we will have no redirect testimony. 7 C.O. CAFFREY: All right. Thank you, sir. Let me 8 ask, then, any of the parties wish to recross Mr. Russell? 9 Mr. Brandt, Mr. Birmingham -- 10 MR. BIRMINGHAM: Excuse me, Mr. Chairman? 11 C.O. CAFFREY: Yes. 12 MR. BIRMINGHAM: I do have questions for Mr. Russell 13 on recross-examination, but with Mr. Sandino's concurrence 14 I would like to reserve my right to cross-examine 15 Mr. Russell until a future date. 16 C.O. CAFFREY: "A future date," I'm not sure I know 17 what that means. You're assuming that we're not going to 18 finish the phase today; is that right? Well, not the 19 phase, the case in chief, so you're asking us to keep the 20 case in chief open? 21 MR. BIRMINGHAM: Yes. Only for the limited purpose 22 of recross-examining Mr. Russell on the very narrow scope 23 of questions that were asked of him by Mr. Sandino. 24 C.O. CAFFREY: I'm not the -- I don't profess to be 25 the most experienced hearing officer on the planet, but I'm CAPITOL REPORTERS (916) 923-5447 2890 1 not sure I understand the reasoning of that. Let me refer 2 to Ms. Leidigh. 3 MR. BIRMINGHAM: I think Mr. Sandino understands it, 4 Mr. Chairman. I think he would concur it would be 5 appropriate. 6 MR. SANDINO: I have one concern, though. 7 Mr. Russell would not be available in September. So you're 8 talking about the next two days? 9 MR. BIRMINGHAM: Yes. 10 MR. SANDINO: He will be available for the next two 11 days, so I assume the hearing will still be going on. 12 C.O. CAFFREY: Well, that's a little bit different, 13 the next few days. 14 MEMBER BROWN: One day. 15 C.O. CAFFREY: Yeah, the next one day. Are you 16 saying that you may want to -- does this translated mean 17 you may need some time to think things through and prepare 18 your questions and, perhaps, do it tomorrow? 19 MR. BIRMINGHAM: No, Mr. Chairman. It translates 20 into some -- there's some issues that DWR is grappling with 21 right now. And how those issues are resolved will dictate 22 whether I want to cross-examine Mr. Russell. 23 MR. NOMELLINI: We'll put you under oath, if you 24 like. 25 C.O. CAFFREY: Ms. Leidigh, did you have something, CAPITOL REPORTERS (916) 923-5447 2891 1 you were drawing the mic? 2 MS. LEIDIGH: Well, what I would suggest is that we 3 go ahead with the other parties who want to cross-examine 4 Mr. Russell. And then we'll see if this afternoon 5 Mr. Birmingham wants to cross-examine him before we finish 6 up with this witness. If not, I suppose, you know, it's 7 possible to set the time tomorrow, or something, to do 8 that. But it is somewhat unusual and we would not be 9 closing the case in chief for East Bay MUD until the 10 cross-examination is completed. 11 C.O. CAFFREY: The only way that I know that we can 12 do it if this went on for a while would be to take this 13 particular case in chief of the phase, identify it as a 14 separate phase, because if this one aspect of things is 15 opened, we wouldn't be able to do closing arguments. 16 MS. LEIDIGH: That's right. Another approach would 17 be to have an agreement that Mr. Birmingham could call 18 Mr. Russell as his own witness in a later phase. 19 MR. BIRMINGHAM: That would be acceptable. 20 C.O. CAFFREY: We do say in our regulations that if 21 you're presenting a case that's relevant to all phases, try 22 to present it in the phase in which its most relevant. 23 MS. LEIDIGH: Yes. 24 C.O. CAFFREY: Maybe that would require us to be 25 creative in that definition. Why don't we do this, CAPITOL REPORTERS (916) 923-5447 2892 1 Mr. Birmingham, I appreciate what you're trying to do here. 2 We'll try to give you deference. Let's go through the 3 recross and then see where you are at that point and see if 4 there's a way that we can accommodate you. I'm sure we 5 will be able to. Let's go back through the -- I started 6 with Mr. Brandt. Can I see a showing of the hands, again? 7 Okay. We have Mr. Nomellini, Mr. Maddow, 8 Ms. Zolezzi, Mr. Minasian. We have Brandt, Nomellini, 9 Maddow, Zolezzi, have we left anybody out? All right. 10 Let's start with Mr. Brandt. 11 ---oOo--- 12 RECROSS-EXAMINATION OF DEPARTMENT OF WATER RESOURCES 13 BY THE DEPARTMENT OF THE INTERIOR 14 BY ALF BRANDT 15 MR. BRANDT: One quick question. How can you treat 16 the flows that would be coming under the MOU, or JSA, as 17 new benefits if they're already going to be coming no 18 matter what under the FERC proceeding? 19 MR. RUSSELL: From our perspective in the -- the 20 amount of analysis that was done there was reference to the 21 Board's reference condition that we were making those. And 22 at that time the FERC flows were, actually, included in the 23 hydrology to the point we understood them. We recognize 24 that that's better than what's been going on in the past. 25 So that appears to be an improvement from the Department's CAPITOL REPORTERS (916) 923-5447 2893 1 position. 2 MR. BRANDT: But it's not necessarily better than the 3 existing conditions that would be in the years ahead? 4 MR. RUSSELL: We're making the presumption there that 5 FERC would approve it as we see it. 6 MR. BRANDT: And, therefore, it wouldn't be better 7 than the existing conditions in the years ahead? 8 MR. RUSSELL: I can't say that. Maybe I didn't 9 listen to your question carefully enough. 10 MR. BRANDT: Okay. Let's try this again. Then there 11 would be no new benefit for the flows that would come out 12 of the MOU or the JSA for the years coming in the future, 13 because it's going to be ordered by FERC anyway? 14 MR. RUSSELL: Okay. I can't say that it's going to 15 be ordered by FERC anyway. They haven't signed it. So the 16 position that we have in front of us today is it appears 17 that if they did sign it, okay, we would see new water into 18 the Delta. So that appears to be a benefit over D-1485 19 operating arrangements, or the Water Quality Control Plan 20 operating arrangements as we know them today. 21 MR. BRANDT: Thank you. 22 C.O. CAFFREY: All right. Mr. Nomellini. 23 ---oOo--- 24 RECROSS-EXAMINATION OF THE DEPARTMENT OF WATER RESOURCES 25 BY CENTRAL DELTA PARTIES CAPITOL REPORTERS (916) 923-5447 2894 1 BY DANTE JOHN NOMELLINI 2 MR. NOMELLINI: I'm going to be close to the same 3 issue. Dante John Nomellini for Central Delta Parties. 4 Mr. Russell, my concern is with the concept of 5 giving away public assets, a gift of public funds kind of 6 comparable. Following up on Mr. Brandt's question, if we 7 assume that the East Bay MUD FERC agreement was in place 8 already, would you agree that there would be no benefit to 9 the state to make a commitment to backstop that agreement? 10 MR. RUSSELL: I think we want to examine why we're 11 doing the settlements in the first place. And in light of 12 that we are trying to be as efficient in this hearing 13 process as I understand we can be; and also to make sure no 14 parties would be injured by the stipulations -- or rather 15 by the settlements. And that's the intent. 16 MR. NOMELLINI: What beyond the FERC flow, and giving 17 my -- given my hypothetical that that was in place, what 18 beyond that are you getting with this MOU? 19 MR. RUSSELL: In the way of water, nothing. 20 MR. NOMELLINI: In the way of protection of other 21 parties, is there anything? 22 MR. SANDINO: Could you be more specific? 23 MR. NOMELLINI: Yeah. It's true, isn't it, you're 24 not getting any other protection, assuming the FERC flows 25 were being committed to and provided, you're not getting CAPITOL REPORTERS (916) 923-5447 2895 1 any other protection out of this agreement, are you? 2 MR. RUSSELL: That's correct. 3 MR. NOMELLINI: Okay. That's all I have. 4 C.O. CAFFREY: Thank you, Mr. Nomellini. Mr. Maddow. 5 ---oOo--- 6 RECROSS-EXAMINATION OF DEPARTMENT OF WATER RESOURCES 7 BY CONTRA COSTA WATER DISTRICT 8 BY ROBERT B. MADDOW 9 MR. MADDOW: Thank you, Mr. Chairman and Members of 10 the Board. I'm Robert Maddow appearing for the Contra 11 Costa Water District. 12 Mr. Russell, is DWR advocating a particular fall 13 alternative? 14 MR. RUSSELL: Not at this time. 15 MR. MADDOW: Have you done any efforts towards 16 quantifying the amount of water that you are committing as 17 backstop for the East Bay MUD proposed settlement? 18 MR. RUSSELL: No. 19 MR. MADDOW: I'm also curious as to how you would 20 implement the backstop as you described it in your redirect 21 testimony. In the first place, are we to assume that your 22 agreement to backstop East Bay MUD is based upon the COA as 23 we now know it? 24 MR. RUSSELL: That was considered, yes. 25 MR. MADDOW: Are you assuming that there would be any CAPITOL REPORTERS (916) 923-5447 2896 1 change in the COA? 2 MR. RUSSELL: I don't know that answer. What we 3 understand today is that under D-1485 as it moved into the 4 Water Rights 95-6, that we were partners in providing Delta 5 protections. 6 MR. MADDOW: All right. I understand. 7 MR. RUSSELL: And it's conceivable as the process 8 matures and the Board makes its decision, that somewhere 9 along the line the projects will be asked to make 10 assurances that the Delta protections are met through these 11 other arrangements. This is reflecting the Board's flow 12 alternatives in their EIR where they said they would likely 13 go to their projects for the water supply if they were 14 asked, or go to groundwater, or something. You recall 15 reading the EIR discussion along those lines. It looked 16 like the analysis was done with the understanding that the 17 overlying protection would be met through assurances from 18 the projects. 19 MR. MADDOW: Mr. Russell, I'm trying to understand 20 things on two different levels. I'm trying to understand 21 what the nature of the commitment is that the Department of 22 Water Resources has made; and I'm trying to understand how 23 it's going to work. 24 First from the standpoint of the commitment that 25 the Department has made, in light of your testimony of the CAPITOL REPORTERS (916) 923-5447 2897 1 coordinated operations agreement defining the Department's 2 fair share, is it fair for me to characterize the 3 Department's condition -- excuse me, the Department's 4 commitment as a conditional one conditioned upon the 5 agreement of the Bureau of Reclamation to meet its fair 6 share as it is defined in the coordinated operations 7 agreement? 8 MR. RUSSELL: No. We presume that we would do our 9 share and leave it to the Board to make the allocation 10 where the other water would come from. 11 MR. MADDOW: And in comparison to the commitment that 12 you made -- excuse me, that the Department made, for 13 example, with regard to the San Joaquin River Agreement 14 where as I understand it the Department signed the 15 Statement of Support for that agreement. 16 Here you are making a statement of commitment 17 that's in the nature of Department policy as I understand 18 it. Is that correct? 19 MR. RUSSELL: That's correct. 20 MR. MADDOW: Okay. And going back to the manner of 21 implementation, now, just so I'm sure I understand this, I 22 think what you're saying is pretty close to what my 23 understanding -- to the way I'm going to state my 24 understanding, but, please, correct me if I'm wrong. 25 Each year the Department would determine East Bay CAPITOL REPORTERS (916) 923-5447 2898 1 MUD's theoretical obligation to make a contribution to 2 Bay-Delta water quality objectives. And to the extent that 3 the Joint Settlement Agreement falls short, then you would 4 divide the shortfall between the Department and the Bureau 5 of Reclamation, and that's how East Bay MUD gets off the 6 hook for any further commitment to the Delta. Is that, in 7 essence, how this would work? 8 MR. RUSSELL: Only if the Board assigned 9 responsibility for the other portion of the share to the 10 Bureau of Reclamation. 11 MR. MADDOW: Thank you. 12 C.O. CAFFREY: All right. Thank you, Mr. Maddow. 13 Ms. Zolezzi. 14 MS. ZOLEZZI: Mr. Maddow covered my questions. 15 C.O. CAFFREY: All right, thank you. Mr. Minasian. 16 ---oOo--- 17 RECROSS-EXAMINATION OF DEPARTMENT OF WATER RESOURCES 18 BY THE WESTERN CANAL WATER DISTRICT 19 BY PAUL R. MINASIAN 20 MR. MINASIAN: Mr. Russell, is there any plan to 21 place this final agreement with East Bay MUD before the 22 court for validation to make sure that it's a valid 23 obligation of the State Water Project? 24 MR. RUSSELL: I think that's a legal question. Can I 25 redirect it to the attorney? CAPITOL REPORTERS (916) 923-5447 2899 1 MR. SANDINO: You may not. 2 MR. RUSSELL: I don't know that. 3 MR. MINASIAN: Okay. How do you view the Board as 4 getting certainty that, in fact, there will be an insurance 5 company there to basically look to if they took alternative 6 five? 7 MR. RUSSELL: I would expect it would be something 8 similar to the terms and conditions in one's water rights, 9 whoever holds the water rights as we have now under D-1485 10 or Water Rights 95-6. 11 MR. MINASIAN: Let me give you a hypothetical. 12 Here's poor East Bay MUD and they want to have an approval, 13 would the Board say, "Well, East Bay MUD, you're approved, 14 but if DWR can't perform their guarantee, we pick 15 alternative five as to you"? Is that a hypothetical that 16 would fit with your view of this? 17 MR. RUSSELL: I don't see that kind of certainty in 18 how the Board would make their decision at this time. 19 MR. MINASIAN: Okay. Now, you briefly touched on 20 that, and I'll try not to go beyond the scope of your 21 recross. What's the criteria that somebody could get one 22 of these policies of insurance? As you know I represent 23 some people up in the Feather River who have signed 24 contracts already giving up 50 percent of their water in 25 dry years to you. Are we eligible for this program? CAPITOL REPORTERS (916) 923-5447 2900 1 MR. RUSSELL: I think we would entertain discussions 2 with any party that was of interest to do that. This is 3 very much in keeping with the settlement concept that the 4 Board has encouraged the parties to enter into. 5 MR. MINASIAN: Okay. So if you've got a FERC water 6 release standard, whether it means more water or less 7 water, you'll accept that as eligibility? 8 MR. RUSSELL: I think we would look at that on a 9 case-by-case basis. 10 MR. MINASIAN: What is the criteria so the Board 11 knows how many of these insurance policies it's going to 12 have to enforce? What's the criteria, is DWR gets water 13 that it didn't get before? 14 MR. RUSSELL: Certainly, we would look to improve our 15 water supplies situation. 16 MR. MINASIAN: But by how much? 17 MR. RUSSELL: I don't know that that's been defined 18 yet. 19 MR. MINASIAN: Does it make a difference if you're a 20 municipal and industrial party, or an agricultural user? 21 MR. RUSSELL: Not at this time. 22 MR. MINASIAN: Thank you. Thank you. 23 C.O. CAFFREY: All right. Thank you, Mr. Minasian. 24 Mr. Birmingham, I don't imagine you heard anything that 25 inspired you to be ready now? CAPITOL REPORTERS (916) 923-5447 2901 1 MR. BIRMINGHAM: (Witness shakes head.) 2 C.O. CAFFREY: Okay. What I'll do then is -- 3 MR. HOWARD: Mr. Caffrey? 4 C.O. CAFFREY: I'm going to get to that in a minute. 5 MR. HOWARD: I was going to ask a question. 6 C.O. CAFFREY: But I'm dealing with the parties, and 7 then I will get to the staff and the Board Members. 8 MR. HOWARD: Sorry. 9 C.O. CAFFREY: Then that completes the 10 cross-examination from the parties. And what I was going 11 to say to Mr. Birmingham is that I will allow you to 12 cross-examine this witness up until the end of this phase, 13 before we start taking rebuttal testimony. If you're not 14 able to do it then I'd offer the option to go as far as you 15 can then and, then, perhaps, call the witness back as your 16 witness in a later phase. 17 MS. LEIDIGH: Yes. 18 C.O. CAFFREY: Or not cross-examine him at all and 19 still bring him back in a later phase as a witness. That 20 way we won't obstruct the progress we're making and we 21 won't have to hold back on closing arguments. 22 MR. BIRMINGHAM: Thank you, Mr. Chairman. 23 C.O. CAFFREY: Thank you, Mr. Birmingham. All right. 24 Questions of the staff of this panel -- or of this 25 individual, I should say at this point. CAPITOL REPORTERS (916) 923-5447 2902 1 ---oOo--- 2 RECROSS-EXAMINATION OF THE DEPARTMENT OF WATER RESOURCES 3 BY STAFF 4 MR. HOWARD: Mr. Russell, in your testimony you 5 indicated that among the alternatives that the Board had in 6 its Draft EIR that additional water would be required from 7 East Bay MUD in alternatives three, four and five. Is that 8 correct? 9 MR. RUSSELL: That's my testimony, yes. 10 MR. HOWARD: Are you aware of the methodology that 11 was used to -- the water right priority methodology that 12 was used to calculate responsibilities under alternatives 13 three and four? 14 MR. RUSSELL: Yes, I am. 15 MR. HOWARD: If we used that water right priority 16 methodology, one of the terms in that methodology is the 17 way that the projects have to release water to meet their 18 responsibility to in-basin contractors. If -- based on 19 this agreement you have, would we treat East Bay MUD for 20 that calculation purpose as an in-basin contractor? 21 MR. RUSSELL: I think I'd like to explore that more. 22 Just off the top, I would say that it would be a candidate 23 for in-basin contractor, but I'd like to explore it in more 24 detail. 25 MR. HOWARD: Now -- CAPITOL REPORTERS (916) 923-5447 2903 1 MR. RUSSELL: I can't give you an answer now. 2 MR. HOWARD: Okay. Thank you. 3 C.O. CAFFREY: Anything else from the staff members? 4 Anything from the Board Members? Mr. Brown. 5 ---oOo--- 6 RECROSS-EXAMINATION OF THE DEPARTMENT OF WATER RESOURCES 7 BY BOARD MEMBERS 8 MEMBER BROWN: Mr. Russell, what's the status, if you 9 know, of the agreement? 10 MR. RUSSELL: Okay. We have two agreements that 11 we're discussing. One agreement is the Memorandum of 12 Understanding. And it's my -- at this point in time I 13 believe it's been signed by the parties who they had 14 envisioned signing it, but that does not include the 15 Department of Water Resources. 16 MEMBER BROWN: My question was with the Department. 17 What is the status with the Department, are you close? 18 MR. RUSSELL: We have language drafted on a 19 Memorandum of Understanding between East Bay MUD and the 20 Department of Water Resources. 21 MEMBER BROWN: You have what? 22 MR. RUSSELL: We have language drafted. We have some 23 draft versions of that. And it's in circulation for 24 comments. 25 MEMBER BROWN: Do you know what the major concerns CAPITOL REPORTERS (916) 923-5447 2904 1 are and why it's taken so long? 2 MR. RUSSELL: Not specifically, no. 3 MEMBER BROWN: You testified that you had no estimate 4 of the quantity of water that may be required to backstop 5 this. But do you have an idea, a range of the water that 6 you're speaking of? 7 MR. RUSSELL: Okay. Because the actual quantity of 8 water is going to depend on the hydrologic conditions at 9 the time and we're not in a position to forecast that, what 10 we do is use the historic hydrology sequence, adjust it to 11 the 1995 level of development for consumptive use. And we 12 have run the 73-year sequence with the various flow 13 alternatives. And from that information we've been able to 14 get likely amounts of flow assigned to each alternative, 15 and that is reported in the Draft EIR. 16 MEMBER BROWN: Do you know what the feeling of the 17 State Contractors is towards this, in general? 18 MR. RUSSELL: They signed the Memorandum of 19 Understanding that I spoke to earlier in support of this. 20 And we have received support from their position so far in 21 drafting the language between DWR and East Bay Municipal 22 Utility District. 23 MEMBER BROWN: And I think I heard you say earlier 24 that your fair share of this is 25 percent? 25 MR. RUSSELL: That's correct, under the COA. CAPITOL REPORTERS (916) 923-5447 2905 1 MEMBER BROWN: All right. 2 MR. RUSSELL: And that's during balanced conditions. 3 MEMBER BROWN: That's all I have, Mr. Chairman. 4 Thank you. 5 C.O. CAFFREY: Thank you, Mr. Brown. Any other 6 recross from the Board Members? It's getting close to 7 lunchtime. I set a little goal for myself before we break 8 for lunch we're going to consider the acceptance of all the 9 exhibits, because we're at that point now. So we'll hear 10 from Mr. Etheridge. We'll hear from Mr. Sandino, and then 11 we have cross exhibits from Mr. Brandt and Mr. Maddow as 12 well as I recall, and don't let me leave anybody out. 13 Mr. Etheridge, do you want to offer your exhibits 14 at this time? 15 MR. ETHERIDGE: Yes, Chairman Caffrey. 16 MS. WHITNEY: And Mr. Minasian has one too. 17 C.O. CAFFREY: Thank you, and Mr. Minasian. 18 MS. WHITNEY: And Contra Costa, also. 19 C.O. CAFFREY: Right, we got that. We have Maddow, 20 Minasian, and Brandt, right. Okay. Go ahead, 21 Mr. Etheridge. 22 MR. ETHERIDGE: Thank you. At this time I would like 23 to offer into evidence East Bay MUD Exhibits 1 through 10, 24 and that would include the newly marked Exhibits 5-M 25 through 5-O of Mr. Grace's testimony; 6-M through 6-Q of CAPITOL REPORTERS (916) 923-5447 2906 1 Dr. Hanson's testimony; and 10-M through 10-U of Mr. 2 Lampe's testimony. 3 C.O. CAFFREY: Let's me check with the staff for 4 their synchronization. 5 MS. WHITNEY: It's going to take me a minute. Yes. 6 C.O. CAFFREY: Thank you, Ms. Whitney. Is there any 7 objection to receiving the exhibits as iterated by 8 Mr. Etheridge into the record? 9 MR. MADDOW: Robert Maddow on behalf of Contra Costa. 10 We object to the introduction of East Bay MUD's Exhibits 2 11 through 10 and all of the other sub exhibits that 12 Mr. Etheridge just enumerated. In Contra Costa's view this 13 is not a complete settlement agreement, does not meet the 14 test set forth in the hearing notice for what a settlement 15 agreement should be. And, in fact, this evidence is 16 relevant in Phase VIII. So we object to its introduction 17 at this time. 18 C.O. CAFFREY: Thank you, Mr. Maddow. Is there any 19 other objection? I would say in regard to Mr. Maddow's 20 objection it's duly noted in the record. That we will, in 21 fact, accept the exhibits in the state such as they are, 22 the state that they are in, speaking to the agreement, per 23 se. As I've said many times, it goes to the discretion of 24 the Board Members to determine the weight of evidence in 25 these matters. CAPITOL REPORTERS (916) 923-5447 2907 1 With that, then, Mr. Etheridge's exhibits are 2 accepted into the record. Now to Mr. Sandino. 3 MR. SANDINO: I think, Mr. Chairman, we will be 4 asking that our -- Mr. Russell's testimony be admitted 5 later on at the end of this phase. That's what we did with 6 the Cache Creek stipulation, so I think we will do that. 7 C.O. CAFFREY: Thank you, sir. I do recall our 8 discussion on that earlier on and that is acceptable. 9 Without objection? Seeing and hearing none. Then we can 10 go to -- let's see, I think so we had, Mr. Maddow, you had 11 Exhibit 6, I believe, does that synchronize with the staff? 12 MS. WHITNEY: Yes. 13 MR. MADDOW: Yes, Mr. Chairman, it's Contra Costa 14 Exhibit 6, it's the one-page chart which I handed out all 15 but one of my copies yesterday. 16 C.O. CAFFREY: We remember it well. 17 MR. MADDOW: And we would offer that as CCWD Exhibit 18 6. 19 C.O. CAFFREY: Thank you, sir. Any objection to 20 accepting the exhibit? Seeing and hearing none, it is 21 accepted. Thank you, Mr. Maddow. Mr. Minasian. 22 MR. MINASIAN: Yes, your Honor -- Chairman. We would 23 offer joint Water District, Western Canal Water District 24 what was denominated 12, in error, because the contracts, 25 as you remember, were put in as being referred to and CAPITOL REPORTERS (916) 923-5447 2908 1 identified but not in as an exhibit. So this would be our 2 Exhibit 1, what was referred to as 12 would be Exhibit 1. 3 C.O. CAFFREY: Exhibit 1. Are you with us, 4 Ms. Whitney? 5 MS. WHITNEY: Yes. That's fine. 6 C.O. CAFFREY: All right. Any objection to accepting 7 that exhibit? Mr. Birmingham? 8 MR. BIRMINGHAM: I object on the ground that there's 9 no foundation for the admission of the exhibit. 10 C.O. CAFFREY: Ms. Leidigh, do you have any comment 11 on that before we rule? 12 MS. LEIDIGH: The exhibit is already a staff exhibit. 13 Plus, I think that it could be officially noticed, if 14 nothing else. And it's not necessary to have a witness 15 testifying in order to lay a foundation. 16 C.O. CAFFREY: All right. Thank you, Ms. Leidigh. 17 We note Mr. Birmingham's objection on the record. We will 18 accept the exhibit, again, using the same weight of 19 evidence argument that I mentioned a moment ago. And let's 20 see, did we get to Mr. Brandt? 21 MR. BRANDT: No. 22 C.O. CAFFREY: Sir, please. 23 MR. BRANDT: Thank you, Mr. Chairman. Alf Brandt, 24 Department of Interior. I'd like to move into evidence the 25 Department of Interior Exhibit 102. CAPITOL REPORTERS (916) 923-5447 2909 1 C.O. CAFFREY: All right. Thank you, sir. 2 MS. WHITNEY: Yes. 3 C.O. CAFFREY: Any objection from the other parties 4 to receiving this evidence into the record? Hearing and 5 seeing no response, the exhibit is accepted. Have we 6 overlooked anyone, any exhibits? 7 MS. WHITNEY: North Delta Water Users introduced an 8 exhibit, but I guess you're going to wait? 9 C.O. CAFFREY: Right, but we will consider that one 10 when they do their case in chief. 11 MS. WHITNEY: That's it. 12 C.O. CAFFREY: All right. Then that completes the 13 East Bay Municipal Utility District case in chief with the 14 exception of the possibility of cross-examination by 15 Mr. Birmingham of Mr. Russell later in the phase. With 16 that we'll break for lunch -- excuse me, Mr. Brandt has a 17 question. 18 MR. BRANDT: I'd just like to find out in planning 19 for my witnesses we've got North Delta -- 20 C.O. CAFFREY: I believe we have -- thank you, I 21 appreciate your reminder. We've had some discussion up 22 here trying to accommodate as many people as we can. 23 Unfortunately, those discussions haven't involved 24 everybody. So, perhaps, I should say now what I understand 25 the proposal to be and hear from any of you that may have CAPITOL REPORTERS (916) 923-5447 2910 1 problems of your own. 2 We would go to North Delta next; is that correct, 3 Ms. Leidigh, and then after that we would go to the Natural 4 Heritage Institute; is that correct? 5 MS. LEIDIGH: That's my understanding of what the 6 parties have indicated they would like to do. 7 MR. THOMAS: Mr. Chairman? 8 C.O. CAFFREY: Yes, Mr. Thomas. 9 MR. THOMAS: Let me simplify your day. 10 C.O. CAFFREY: All right, sir. 11 MR. THOMAS: On further consultation our presentation 12 is going to fit better in Phase II-A. 13 C.O. CAFFREY: All right, sir. 14 MR. THOMAS: We would be happy to defer to that time. 15 C.O. CAFFREY: All right. I understand your case to 16 be, to use your term earlier, somewhat generic in that it 17 applies to, perhaps, more than one phase. And our ruling 18 in this entire proceeding allows it to be presented in that 19 phase which you deem to be the most pertinent, or relevant. 20 So we will allow you to do that, sir. Thank you. 21 Mr. Gallery. 22 MR. GALLERY: Mr. Chairman, on behalf of Woodbridge 23 Irrigation District I had the impression that we were going 24 to follow East Bay MUD's presentation. Our presentation 25 interlinks fairly closely with the East Bay MUD CAPITOL REPORTERS (916) 923-5447 2911 1 presentation. And we were planning on coming on next. Has 2 that been changed? 3 C.O. CAFFREY: And that's a correct and fair 4 assumption on your part, Mr. Gallery, because what I just 5 announced was a departure from that. If we go to North 6 Delta next, does that create a hardship for you in your 7 witnesses? 8 MR. GALLERY: Not if we can get on this afternoon, 9 that wouldn't be a problem. 10 C.O. CAFFREY: Do we have any idea how long the North 11 Delta case in chief, or at least the presentation of their 12 direct, is going to take? 13 UNIDENTIFIED MAN: I believe the direct would take 14 about 30 minutes. 15 C.O. CAFFREY: About 30 minutes. Do you have any 16 idea of how many people that have already looked at the 17 evidentiary exhibits without having heard the testimony, 18 have any kind of an idea that they want to cross-examine? 19 MR. BRANDT: I have a couple of questions. 20 C.O. CAFFREY: Mr. Brandt has a couple of questions. 21 Does anybody else anticipate with just looking at the 22 physical exhibits that they may want to cross-examine? All 23 right. Then my anticipation is that we might get through 24 North Delta fairly quickly. And then we could get to you, 25 Mr. Gallery. CAPITOL REPORTERS (916) 923-5447 2912 1 MR. GALLERY: Thank you. That would be fine. 2 MR. SORENSEN: Mr. Chairman? 3 C.O. CAFFREY: Yes, Mr. Sorensen. 4 MR. SORENSEN: A witness for North San Joaquin has 5 another commitment for tomorrow. And he would like to keep 6 that commitment tomorrow. I'm wondering if you have some 7 feel about time. 8 C.O. CAFFREY: For North San Joaquin? 9 MR. SORENSEN: North San Joaquin. 10 C.O. CAFFREY: Unless we really speed along tomorrow, 11 North San Joaquin is about the eighth or ninth case in 12 chief. It may be the one at the bottom of the list. Maybe 13 I'm just pessimistic, but I'm not sure I'm anticipating 14 that we'll be finishing this phase by the close of business 15 tomorrow. Does anybody on the staff disagree? 16 MR. SORENSEN: I believe that the North San Joaquin 17 witness can oblige your scheduling, unhappily but -- 18 C.O. CAFFREY: Thank you, sir. But if we don't get 19 you tomorrow we won't be back until September 15th. That's 20 the next -- and then we go heavily through September and 21 October as I recall the schedule. 22 Ms. Zolezzi? 23 MS. ZOLEZZI: Could you possibly read the order that 24 you have for the cases in chief? I told my witnesses not 25 to come until tomorrow. So -- CAPITOL REPORTERS (916) 923-5447 2913 1 C.O. CAFFREY: That would be a good thing to do, 2 although, I will tell you at this point since it just 3 changed, I'm going to ask the staff to read the order as 4 they now understand it. I could give it a go and I bet I'd 5 be very close but -- 6 MS. LEIDIGH: Okay. I think the current order is -- 7 C.O. CAFFREY: North Delta. 8 MS. LEIDIGH: -- North Delta and -- 9 C.O. CAFFREY: Then Woodbridge. 10 MS. LEIDIGH: Then Woodbridge. And then Solano. 11 C.O. CAFFREY: Solano. 12 MS. LEIDIGH: And then Department of Interior. 13 C.O. CAFFREY: Then I believe Environmental Defense 14 Fund, Natural Heritage Institute, and North San Joaquin. 15 MS. LEIDIGH: Right. 16 MR. NOMELLINI: Didn't the Natural Heritage people 17 request to be dropped? 18 C.O. CAFFREY: Thank you. Thank you. 19 MS. LEIDIGH: That's right. 20 C.O. CAFFREY: They're going to II-A. 21 Yes, Ms. Zolezzi? 22 MS. ZOLEZZI: Then, perhaps, since I've already 23 called my witnesses and told them to come first thing in 24 the morning, I could allow North San Joaquin to go third 25 this afternoon, we might reach them, if there's no problem CAPITOL REPORTERS (916) 923-5447 2914 1 with that. 2 C.O. CAFFREY: So you're suggesting that North San 3 Joaquin follow Woodbridge? 4 MS. ZOLEZZI: Yes. 5 C.O. CAFFREY: That's certainly agreeable to us if 6 there's no objection. 7 MR. BRANDT: I'll send my witnesses off. I think 8 that would put off -- that's fine. 9 C.O. CAFFREY: Thank you, Mr. Brandt. All right, 10 Mr. Sorensen, perhaps, that would help you if we move along 11 smartly this afternoon. 12 MR. SORENSON: Thank you. 13 C.O. CAFFREY: All right. Let's come back at 1:15, 14 then, to continue the hearing. Thank you. 15 (Luncheon recess.) 16 ---oOo--- 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 2915 1 WEDNESDAY, AUGUST 19, 1998, 1:19 P.M. 2 SACRAMENTO, CALIFORNIA 3 C.O. CAFFREY: We're back. This is the continuation 4 of the Water Rights Hearing for the Bay-Delta. We're in 5 Phase IV. And we are going to commence with the case in 6 chief for North Delta Water Agency. Is that correct, 7 Mr. O'Brien? 8 MR. O'BRIEN: That is correct, Mr. Caffrey. 9 C.O. CAFFREY: I do have one question, the 10 representative for the City of West Sacramento at one point 11 several days ago had suggested that this was going to be a 12 joint presentation. Is that not the case any longer? 13 MR. O'BRIEN: I believe that is not the case. 14 Ms. Goldsmith had a conflict today. I believe the plan is 15 for her to come back tomorrow with Mr. Yost and put on that 16 testimony. 17 C.O. CAFFREY: Okay. 18 MR. O'BRIEN: I should probably confirm that with 19 her. I know there was some question about Mr. Yost's 20 availability, but I'll check with her. 21 C.O. CAFFREY: But in any case you're going to 22 present a panel this afternoon. Is this the totality of 23 your witnesses, the one panel? 24 MR. O'BRIEN: Yes. And Mr. Sandino on behalf of the 25 Department will be making a companion presentation CAPITOL REPORTERS (916) 923-5447 2916 1 following ours. 2 C.O. CAFFREY: So we'll treat this as a joint 3 presentation with you and Water Resources as we'd discussed 4 earlier. Is that acceptable, Mr. Sandino? 5 MR. SANDINO: Yes. 6 C.O. CAFFREY: Thank you, sir. All right. Yes, 7 thank you, Mr. Stubchaer. I trust that you, gentlemen, 8 have not yet been sworn in, or have you? 9 THE PANEL: Have not. 10 C.O. CAFFREY: Would you all, please, rise. Do you 11 promise to tell the truth in these proceedings? 12 THE PANEL: I do. 13 C.O. CAFFREY: Thank you, gentlemen. You may be 14 seated. Mr. O'Brien, you may proceed with an opening 15 statement if you wish. 16 ---oOo--- 17 NORTH DELTA WATER AGENCY, et al. 18 OPENING STATEMENT 19 BY KEVIN O'BRIEN 20 MR. O'BRIEN: I'll just make a very brief opening 21 comment. Mr. Chairman, this presentation is being made on 22 behalf of the five districts: The North Delta Water 23 Agency, Reclamation District 999, Reclamation District 24 2060, Reclamation District 2068, and Marine Prairie Water 25 District. CAPITOL REPORTERS (916) 923-5447 2917 1 The purpose of this presentation is to present to 2 the Board the settlement that has been reached between the 3 North Delta Group and the Department of Water Resources. 4 This settlement I think is different from the other 5 settlements that are being presented to the Board in this 6 proceeding, because it's really not a new settlement, it's 7 an old settlement. It's a settlement that occurred back in 8 1981 when the Department of Water Resources and North Delta 9 Water Agency signed a contract that provides -- makes 10 certain provisions for water quality and water supply in 11 the North Delta. 12 The purpose of the presentation today is to 13 explain to the Board the nature of that contract and to 14 present a Memorandum of Understanding recently executed 15 between North Delta Water Agency and DWR, that presents a 16 joint interpretation of that contract as it applies to this 17 proceeding. 18 The MOU makes clear that it is not the intent -- 19 intent of the parties to modify the 1981 contract. It's 20 simply to interpret that contract for the Board in the 21 terms of applicability in terms of this water right 22 proceeding. With that I'd like to call as my first witness 23 Mr. Donald Kienlen. 24 C.O. CAFFREY: Mr. O'Brien, sorry for interrupting 25 you, but perhaps this would be a good time to remind CAPITOL REPORTERS (916) 923-5447 2918 1 everybody of our rules and regulations with regard to 2 direct testimony. Since evidentiary exhibits have been 3 submitted on a timely basis and according to our rules, 4 there is a time limit of 20 minutes per witness for direct 5 testimony. 6 We do not make any exceptions to that. We haven't 7 so far and wouldn't in the future. The reason for that is 8 your direct testimony is merely a summary of what you have 9 presented in your exhibits. And that limitation, however, 10 does not hold with cross-examination. As long as 11 cross-examination is relevant, there is no time limit. We 12 set a goal for an hour, oftentimes we go over that, 13 whatever is required as long as I say it's relevant. 14 So I wanted to remind you of that, Mr. O'Brien, 15 I'm sure you're well aware of it already, but the witnesses 16 may not be. Our usual timing system with the lights has 17 died of overexposure the other day. So Mr. Stubchaer is 18 keeping time up here. When you get down to about two 19 minutes he'll remind you verbally. And that will give you 20 two minutes to wind up if you haven't wound up already. 21 With that, I apologize for interrupting you. Please, 22 proceed. 23 // 24 // 25 // CAPITOL REPORTERS (916) 923-5447 2919 1 DIRECT EXAMINATION OF NORTH DELTA WATER AGENCIES 2 BY KEVIN O'BRIEN 3 ---oOo--- 4 MR. O'BRIEN: Thank you. Mr. Kienlen, could you 5 state your full name for the record, please. 6 MR. KIENLEN: Donald E. Kienlen. 7 MR. O'BRIEN: Is NDWA Exhibit Number 2 a true and 8 correct copy of your resume? 9 MR. KIENLEN: It is. 10 MR. O'BRIEN: And is NDWA Exhibit Number 1 a true and 11 correct copy of your testimony that you prepared in this 12 proceeding? 13 MR. KIENLEN: It is. 14 MR. O'BRIEN: Could you, please, summarize for the 15 Board that testimony? And, Mr. Caffrey, he'll be referring 16 to an overhead which is the same as the map that's been 17 marked as NDWA Exhibit Number 3. 18 C.O. CAFFREY: Thank you, Mr. O'Brien. If you're 19 going to be using others, as you put them up there just 20 identify it for the record. Thank you. 21 MR. O'BRIEN: Before we get into the substance of 22 your testimony, Mr. Kienlen, perhaps, you could take a 23 moment to summarize your professional background as it 24 relates to the Bay-Delta issues and the North Delta Water 25 Agency. CAPITOL REPORTERS (916) 923-5447 2920 1 MR. KIENLEN: Well, I've been involved in Bay-Delta 2 issues I guess for 30 years, more than that. In fact, Jim 3 Sorensen and I were reminiscing that we go back to the 4 1950s when we were involved in the hearings on Shasta. And 5 I have been involved with most of the hearings that have 6 dealt with the Bay-Delta issues since that time in one 7 capacity or another. 8 At that time at Shasta, I was the staff engineer 9 for the old State Water Rights Board. In addition to that, 10 I represented the Sacramento River and Delta Water 11 Association involved in contract negotiations, or water 12 supply within the valley. And then I was also the engineer 13 for the North Delta Water Agency and -- which led to the 14 contract we're going to be discussing here today. 15 MR. O'BRIEN: Thank you. Please, go ahead and 16 summarize your testimony. 17 MEMBER DEL PIERO: Excuse me. You wrote the analysis 18 on the Shasta decision; is that true? 19 MR. KIENLEN: Can't hear you. 20 MEMBER DEL PIERO: Is that true, did you write the 21 analysis on the Shasta decision? 22 MR. KIENLEN: Not solely, but I was involved in that, 23 yes, sir. 24 MEMBER DEL PIERO: Nice to have you here today, sir. 25 C.O. CAFFREY: Let the record show that was a very, CAPITOL REPORTERS (916) 923-5447 2921 1 very relevant comment since it came from a Board Member. I 2 know what you're thinking, Mr. Birmingham. Please, 3 proceed. 4 MR. KIENLEN: The North Delta Water Agency 5 boundaries -- 6 MEMBER DEL PIERO: I made the same comment when 7 Mr. Moschowitz walked in on the Mono Lake hearing. 8 C.O. CAFFREY: Everybody gets a freebie, there it is. 9 All right. And this was not on your time by the way. 10 We'll start the clock again. Go ahead. 11 MR. KIENLEN: The North Delta Water Agency's 12 boundaries are shown on North Delta Water Exhibit 3, which 13 is shown on the screen. The agency includes about 3,000 -- 14 301,800 acres in the northern portion of the Delta. All of 15 RD 999, RD 2060, RD 2068 and a portion of Maine Prairie 16 Water District are within the boundaries. And those 17 districts are also shown on this exhibit. 18 Within the North Delta Water Agency there are 19 about 206,000 acres of Delta lowlands, and 96,000 acres of 20 Delta uplands. RD 999 and RD 2060 are within the Delta 21 lowlands, but have appropriative water rights. RD 2068 and 22 Maine Prairie Water District are within the Delta uplands 23 and they also have appropriative water rights. 24 The Delta lowlands are subirrigated. And water 25 levels within these lands are maintained by drainage pumps. CAPITOL REPORTERS (916) 923-5447 2922 1 Therefore, unless the crop vegetation is removed from these 2 lands, water levels within the -- and water levels in the 3 drains is maintained at the low elevation, evaporation -- 4 evaporation will continue. Actual crop evaporation may be 5 lower than those of a weak cover. It is my opinion because 6 of this that some of the proposals and alternatives under 7 consideration by the Board in this alternative will not 8 provide any additional water. It may possibly decrease 9 outflow if sporadic growth is allowed to develop on some of 10 the lowlands. 11 The North Delta Water Agency was formed in 1973 12 for the purpose of entering into an agreement to protect 13 the water quality and supply -- and water supply for the 14 lands within the agency. The negotiations that started out 15 led to a contract with the Department of Water Resources, 16 which is North Delta Water Agency Exhibit 4, and that 17 contract was signed on January 28th, 1981. 18 The contract in addition to providing for water 19 quality at designated locations, provides for assurance of 20 the right to use water from the Delta channels. And that 21 is contained in Section 8, subparagraph 8, subparagraph 2. 22 This section recognizes the right of the users to divert 23 from the channels for reasonable and beneficial uses. And 24 provides that the State will not disturb these diversions 25 so long as the contract is in effect. And it requires the CAPITOL REPORTERS (916) 923-5447 2923 1 State to furnish such water as may be required within the 2 agency to the extent not otherwise available under water 3 users' water rights within the agency. That summarizes the 4 extent of my testimony. 5 MR. O'BRIEN: Thank you, Mr. Kienlen. Next will be 6 Mr. Clark. Mr. Clark, if you could also state your full 7 name for the record. 8 MR. CLARK: My name is Robert D. Clark and I'm 9 manager for North Delta Water Agency. 10 MR. O'BRIEN: Mr. Clark, is NDWA Exhibit Number 5 a 11 true and correct copy of the testimony you submitted in 12 this proceeding? 13 MR. CLARK: Yes, it is. 14 MR. O'BRIEN: Could you, please, summarize that for 15 us? 16 MR. CLARK: Number five, I have the testimony I want 17 to give is first that I'm a registered agricultural 18 engineer in the State of California. Exhibit 4, which we 19 have submitted is a copy of the -- an accurate copy of the 20 contract between the State of California Department of 21 Water Resources and North Delta Water Agency for the 22 assurance of dependable water supply and suitable quality. 23 The contract was executed, as Mr. Kienlen referred 24 to, on January 28th, 1981. Exhibit 6 is a true and correct 25 copy of the judgment entered in the valuation pertaining to CAPITOL REPORTERS (916) 923-5447 2924 1 the 1981 contract. The 1981 contract has been amended once 2 in 1997. Exhibit 7 is a true and correct copy of the 3 amendment. Exhibit 8 is a true and correct of the judgment 4 entered in the validation pertaining to the 1997 amendment. 5 Exhibit 9 is a true and correct summary of the 6 payments made by North Delta Water Agency to the Department 7 of Water Resources pursuant to the 1981 contract from its 8 inception through 1998. Total amount of contract payments 9 for North Delta Water Agency to the Department of Water 10 Resources is $3,810,598.25. These payments have been made 11 from direct assessments of all private landowners within 12 the North Delta Water Agency. 13 Exhibit 10 is a true and correct copy of the 14 Memorandum of Understanding between North Delta Water 15 Agency and the Department of Water Resources dated 16 May 26th, 1998. This MOU has been approved by the Board of 17 Directors of the North Delta Water Agency and by the 18 Department of Water Resources. Thank you, that completes 19 my testimony. 20 MR. O'BRIEN: Thank you, Mr. Clark. 21 Mr. Hardesty, could you state your full name for 22 the record? 23 MR. HARDESTY: Thomas Michael Hardesty. 24 MR. O'BRIEN: Mr. Hardesty, what is your current 25 position? CAPITOL REPORTERS (916) 923-5447 2925 1 MR. HARDESTY: I'm the manager of Reclamation 2 District 2068. 3 MR. O'BRIEN: And is NDWA Exhibit Number 11 a true 4 and correct copy of your testimony? 5 MR. HARDESTY: It is. 6 MR. O'BRIEN: Would you, please, summarize that for 7 us? 8 MR. HARDESTY: Yes. As depicted on the map submitted 9 as North Delta Water Agency Exhibit 3, Reclamation District 10 2068 is located entirely within the boundaries of the North 11 Delta Water Agency. Enclosure 2-A of the notice of hearing 12 for these proceedings lists the RD 2068 appropriative water 13 rights, which are also summarized in my testimony listed as 14 part of North Delta Water Agency Exhibit 11. 15 Landowners within Reclamation District 2068 since 16 1982 have paid assessments to the North Delta Water Agency 17 which have in turn been utilized by North Delta Water 18 Agency to make payments to the Department of Water 19 Resources pursuant to the 1981 contract between the North 20 Delta Water Agency and the Department of Water Resources. 21 Reclamation District 2068 concurs with the 22 position set forth in the Memorandum of Understanding. The 23 MOU which has been previously identify between North Delta 24 Water Agency and the Department of Water Resources, that 25 being dated May 26th, 1998, and referenced as North Delta CAPITOL REPORTERS (916) 923-5447 2926 1 Water Agency Exhibit 10. 2 Based on the terms and conditions of that 1981 3 contract and the joint interpretation as set forth in the 4 MOU, it is the position of Reclamation District 2068 that 5 the Department of Water Resources is obligated to utilize 6 the State Project Water to meet the Delta water quality 7 obligations that may otherwise be attributable to the users 8 within the North Delta Water Agency including those within 9 Reclamation 2068. That concludes my testimony. 10 MR. O'BRIEN: Mr. Hardesty, the Board is going to be 11 hearing testimony later in this Phase IV about the Solano 12 Project. Does any of the water that is used by your 13 District originate from the Solano Project? 14 MR. CLARK: That is correct. Under application 24961 15 the District does redivert tail water that is generated 16 from Solano Project's supply service to agricultural lands 17 upstream of 2068. 18 MR. O'BRIEN: And those diversions and use of that 19 water occur within your district boundaries, which are 20 entirely within North Delta Water Agency? 21 MR. CLARK: That's correct. 22 MR. O'BRIEN: Mr. Marshall, please state your name 23 for the record. 24 MR. MARSHALL: My name is Richard Edwin Marshall. 25 MR. O'BRIEN: And what is your current position? CAPITOL REPORTERS (916) 923-5447 2927 1 MR. MARSHALL: District manager of District 999. 2 MR. O'BRIEN: Is NDWA Exhibit Number 13 a true and 3 correct copy of your testimony? 4 MR. CLARK: Yes, it is. 5 MR. O'BRIEN: And could you, please, summarize that 6 for us? 7 MR. MARSHALL: Okay. As depicted on the map that we 8 had on the screen here before, RD 999 is located within the 9 boundaries of North Delta Water Agency. In enclosure 2-A 10 of the notice of hearing and proceeding lists for this 11 proceeding lists the following appropriative water rights 12 that we have. The landowners within 999 have since about 13 1982 paid assessments to North Delta, which have in turn 14 been utilized by North Delta to make payments to DWR 15 pursuant to the 1981 contract between North Delta and the 16 DWR. 17 RD 999 also concurs with the position set forth in 18 the Memorandum of Understanding between North Delta and DWR 19 dated May 26th of this year. And based on the terms and 20 conditions of the 1981 contract and the joint 21 interpretations as set forth in the MOU, it is the position 22 of our RD 999 that DWR is obligated to utilize State Water 23 Project supplies to meet the Bay-Delta water quality 24 obligations. 25 MR. O'BRIEN: Thank you. Finally, Mr. Coffelt. CAPITOL REPORTERS (916) 923-5447 2928 1 Would you, please, state your full name, 2 Mr. Coffelt? 3 MR. COFFELT: Edward E. Coffelt. 4 MR. O'BRIEN: And what is your current position? 5 MR. COFFELT: General manager of Maine Prairie Water 6 District. 7 MR. O'BRIEN: Is NDWA Exhibit Number 14 a true and 8 correct copy of your testimony? 9 MR. COFFELT: Yes.. 10 MR. O'BRIEN: Could you, please, summarize that? 11 MR. COFFELT: As shown on the map submitted by North 12 Delta Exhibit 3, a portion of Maine Prairie Water District 13 is located within the boundaries of the North Delta Water 14 Agency. Enclosed 2-A to the revised notice of hearings for 15 these proceedings lists the Maine Prairie Water District 16 appropriative water rights. 17 Maine Prairie landowners within North Delta have 18 since, approximately 1982, paid assessments to North Delta 19 Water Agency which has in turn been utilized by North Delta 20 to make payments pursuant to the Department of Water 21 Resources pursuant to the 1981 contract between North Delta 22 and the Department of Water Resources. Maine Prairie 23 prefers the position set forth in the Memorandum of 24 Understanding between North Delta and the Department of 25 Water Resources dated May 26th, 1998. CAPITOL REPORTERS (916) 923-5447 2929 1 Based on the terms and conditions of the 19 -- 2 1981 contract and the position set forth in the MOU, it is 3 the position of Maine Prairie that the Department of Water 4 Resources is obligated to utilize State Project Water 5 supplies to meet any Bay-Delta water quality obligations 6 that may otherwise be allocated to water users within the 7 North Delta, including those portions of lands within the 8 Marine Prairie Water District. 9 MR. O'BRIEN: Mr. Coffelt, I'm going to ask you the 10 same question I asked Mr. Hardesty with respect to the 11 Solano portion used in your District. Does any of the 12 water portion used in your District originate from the 13 Solano Project? 14 MR. COFFELT: All the water we use in our District 15 now is coming from the Solano Project. 16 MR. O'BRIEN: And that water is used by your district 17 pursuant to agreements between Maine Prairie Water District 18 and Solano County Water Agency and Solano Irrigation 19 District; is that correct? 20 MR. COFFELT: Yes, it is. 21 MR. O'BRIEN: There's two separate agreements? 22 MR. COFFELT: Yes. 23 MR. O'BRIEN: Thank you. That concludes our direct 24 testimony. 25 C.O. CAFFREY: Thank you, Mr. O'Brien. By a showing CAPITOL REPORTERS (916) 923-5447 2930 1 of hands, do any of the parties wish to cross-examine this 2 panel -- I'm sorry, I forgot about Mr. Sandino. Please, 3 bring your witness forward and we will give you an 4 opportunity to offer your direct. 5 ---oOo--- 6 DIRECT EXAMINATION BY THE DEPARTMENT OF WATER RESOURCES 7 BY DAVID A. SANDINO 8 MR. SANDINO: Mr. Chairman, the Department has brief 9 testimony today to support this settlement. We're bringing 10 Mr. Russell, who's our man for all seasons on these Delta 11 matters. 12 C.O. CAFFREY: Well back, Mr. Russell. 13 MR. RUSSELL: Thank you, Mr. Chairman. 14 MR. SANDINO: Mr. Russell, you have before you DWR 15 Exhibit 32, again. Is it a true and correct copy of your 16 testimony as it relates to the North Delta Water Agency? 17 MR. RUSSELL: Yes, it is. 18 MR. SANDINO: Would you, please, summarize your 19 testimony? 20 MR. RUSSELL: With respect to the North Delta Water 21 Agency, in 1991 the Department entered into a long-term 22 agreement with the North Delta Water Agency concerning the 23 assurance of a water supply of dependable quality from the 24 Delta for use by the Agency. North Delta Water Agency 25 Exhibit 4 is a true and correct copy of this agreement CAPITOL REPORTERS (916) 923-5447 2931 1 entitled, "Contract between the State of California 2 Department of Water Resources and the North Delta Water 3 Agency for the Assurance of a Dependable water supply and 4 Quality." The Department and the Agency have entered into 5 a MOU to clarify the agreement as it relates to this water 6 rights hearing. 7 North Delta Water Agency Exhibit 10, dated May 8 26th, 1998, is a true and correct copy of this MOU. This 9 MOU generally provides that the Department will be 10 responsible for meeting North Delta Water Agency's 11 obligations, if any, to contribute to meeting the 1995 12 Water Quality Control Plan objectives. This concludes my 13 testimony. 14 C.O. CAFFREY: Thank you, Mr. Russell and 15 Mr. Sandino. Now, I'll try that again, by a showing of 16 hands, besides Mr. Gallery. I've got you Mr. Gallery. 17 Anybody else wish to cross-examine this panel? 18 Mr. Brandt. Any others? All right, we have Mr. Gallery 19 and Mr. Brandt. 20 Mr. Gallery, we'll start with you, sir. Good 21 afternoon. Welcome. 22 ---oOo--- 23 CROSS-EXAMINATION OF NORTH DELTA WATER AGENCY, et al. 24 BY WOODBRIDGE IRRIGATION DISTRICT 25 BY DANIEL F. GALLERY CAPITOL REPORTERS (916) 923-5447 2932 1 MR. GALLERY: Thank you, Mr. Chairman. I just have a 2 few questions of Mr. Clark, I think and, perhaps, a couple 3 of Mr. Russell. 4 Would it be possible to get the overhead of the 5 District boundaries? Mr. Clark, I represent Woodbridge 6 Irrigation District which up at its northwestern end has 7 the lands within Reclamation District 348. Do you know, 8 are the lands within Reclamation District 348 also in the 9 North Delta Water Agency; is that correct? 10 MR. RUSSELL: I'm afraid I can't answer that. I'd 11 have to go back to the maps and review it. 12 MR. GALLERY: All right. Assuming then that my 13 representation that it includes the lands on the New Hope 14 Tract, which are the center of Thornton, do you know that 15 area? 16 MR. RUSSELL: Yes. And I think that -- at least, 17 part of that area is in North Delta. 18 MR. GALLERY: And are those landowners on the New 19 Hope Tract paying in a part of that 170,000 annually that's 20 paid over to DWR? 21 MR. RUSSELL: Those within the boundaries, yes, of 22 the District, or agency. 23 MR. GALLERY: And I wanted to direct your attention 24 to the water quality standards that are attached to the 25 1981 agreement that the Agency has with DWR. In the lower CAPITOL REPORTERS (916) 923-5447 2933 1 right-hand -- lower corner of the page, does it list the 2 water quality standards that will be maintained by DWR 3 under this contract at the Terminus station? 4 MR. RUSSELL: I believe that is the intent of that 5 graph, yes. 6 MR. GALLERY: And Terminus is on the south fork of 7 the Mokelumne River; is that correct? 8 MR. RUSSELL: That's correct. 9 MR. GALLERY: And can you briefly describe what you 10 understand those standards to be as shown on that graph? 11 MR. RUSSELL: I'm going to ask if Mr. Kienlen can 12 answer that question. 13 MR. GALLERY: All right. That would be fine. 14 I wanted now to get a brief explanation of what the 15 standards -- what the water standards at Terminus under 16 this '81 agreement are. 17 MR. KIENLEN: Let's see if I can describe this graph. 18 The graph, essentially, shows that the water quality for 19 the months of May -- February, March, April, May, June, 20 July and August 1st through 15th would be approximately .5 21 millimhos, EC in millimhos. The graph for the period 22 August 16th through August 31st and for the months of 23 September, October, November and December and January on 24 the wetter water years are about 1.1 millimhos. And then 25 declines down into -- I think I misspoke myself. That's in CAPITOL REPORTERS (916) 923-5447 2934 1 the dryer years. And then in the wetter years it also 2 drops down to approximately .5 millimhos. 3 MR. GALLERY: And are those standards designed to try 4 to maintain a suitable water quality for agricultural, for 5 irrigation is that -- is that the goal of the standard? 6 MR. KIENLEN: The standard set forth within this 7 contract we're looking to water quality primarily for 8 agriculture. 9 MR. GALLERY: And, then, directing your attention or 10 Mr. Clark's either one can answer this, the contract itself 11 in Section 2-A says that -- and this is the 1981 contract, 12 "The State will operate the State Water Project to provide 13 water qualities at least equal to the better, one, the 14 standards adopted by the State Water Board as they may be 15 established from time to time; or the criteria established 16 in this contract as identified on the graph attached -- 17 included as Attachment A," the one we just referred to. 18 Now, are you familiar with the standards that are 19 set at Terminus under the 1995 plan, Mr. Kienlen, or 20 Mr. Clark, at Terminus? 21 MR. KIENLEN: No. I don't recall. 22 MR. CLARK: I'm don't either. 23 MR. GALLERY: I'll briefly relate to you that the 24 standards at Terminus for the period -- they begins at .45 25 EC on April 1 and then they -- and then they descend CAPITOL REPORTERS (916) 923-5447 2935 1 downward to .54. But depending on the year type they have 2 to be fresher in the wet years, of course, and then -- so 3 you haven't compared those standards in the 1995 Plan to 4 the ones that are in the 1981 agreement. Have you done 5 that, Mr. Clark? 6 MR. CLARK: No, I have not. 7 MR. GALLERY: Perhaps, Mr. Russell, have you -- 8 MR. RUSSELL: I have not done it. 9 MR. GALLERY: In any event, Mr. Russell and Mr. Clark 10 and Mr. Kienlen, would you all agree with me then that 11 under the 1981 agreement DWR is obligated to maintain the 12 new salinity standards at Terminus by virtue of the 13 language in the 1981 contract? 14 MR. SANDINO: Yes. 15 MR. GALLERY: That's all I have. Mr. Russell, has 16 said, "Yes," and that would be sufficient. 17 C.O. CAFFREY: All right. Thank you, Mr. Gallery. 18 Mr. Brandt. 19 ---oOo--- 20 CROSS-EXAMINATION OF NORTH DELTA WATER AGENCY, et al. 21 BY THE DEPARTMENT OF INTERIOR 22 BY ALF W. BRANDT 23 MR. BRANDT: Just a couple of questions. 24 Mr. Russell, I just want to make sure I understand this 25 correctly. This is not -- comparing the backstop, but this CAPITOL REPORTERS (916) 923-5447 2936 1 is: DWR has agreed to provide whatever water, that if the 2 districts are determined at some point to have some 3 responsibility for the Delta, that you will take care of 4 that water from the State Project Water supplies; is that 5 correct? 6 MR. RUSSELL: I would rephrase that. If the Board 7 determines their responsibility as opposed to the District, 8 then, by virtue of this contract we would be obligated to 9 provide that water quality, yes. 10 MR. BRANDT: That's the only question for you. My 11 other questions are for Mr. Hardesty, Mr. Marshall and 12 Mr. Coffelt. And it's actually a question I just want to 13 clarify something that's in your written testimony that I 14 don't think I heard you say -- 15 MEMBER FORSTER: We can't hear you. 16 C.O. CAFFREY: Mr. Brandt? 17 MR. BRANDT: Yes. 18 C.O. CAFFREY: Could you pull the mic a little 19 closer. We're having a little trouble hearing you. Thank 20 you, sir. 21 MR. BRANDT: Sorry. This is going to be a quick 22 question. And I'm sorry to drag you all up here. I just 23 want to clarify one thing and that is: Is it still your 24 testimony that the State Water Resources Control Board 25 lacks authority to modify the above listed appropriative CAPITOL REPORTERS (916) 923-5447 2937 1 water rights of your respective districts, is that still 2 your testimony? 3 MR. MARSHALL: Defer that to Mr. O'Brien. 4 MR. BRANDT: You guys are the witness. 5 MR. O'BRIEN: I think the witnesses need to answer as 6 to whether that is within their written testimony as has 7 been submitted in this proceeding. And I have a comment to 8 make after you answer the question. 9 UNIDENTIFIED MAN: That is the position the District 10 has taken based upon the representations and discussions 11 that the District has had with Counsel. 12 MR. BRANDT: Okay. Is that true for each one of you? 13 MR. CLARK: Yes. 14 MR. MARSHALL: Yes. 15 MR. KIENLEN: Yes. 16 MR. BRANDT: Are any of you lawyers? 17 THE PANEL: No. 18 MR. O'BRIEN: This would be a good time for me to 19 interpose my statement. That as the statement of the 20 position of the districts it's not intended as a legal 21 opinion or conclusion on the part of these individuals, but 22 those districts have taken that position as a matter of 23 Board policy. 24 MR. BRANDT: Thank you for that clarification, 25 Mr. O'Brien. That's it. CAPITOL REPORTERS (916) 923-5447 2938 1 C.O. CAFFREY: Thank you, Mr. Brandt. Do the staff 2 have any questions, cross-examination? Mr. Howard. 3 ---oOo--- 4 CROSS-EXAMINATION OF NORTH DELTA WATER DISTRICT, et al. 5 BY STAFF 6 MR. HOWARD: Couple of questions for Mr. Kienlen. In 7 your written testimony you indicate that there are within 8 the North Delta Water Agency 200 and -- 205,820 acres of 9 lowland and 96,000 acres of uplands and that all lowlands 10 are riparian; in addition 12,000 acres are riparian. Am I 11 to understand that that means that they have riparian water 12 rights by your reference to "riparian' in this statement? 13 MR. KIENLEN: Yes. 14 MR. HOWARD: Has there been a determination, or have 15 you looked to see whether any of the riparian rights might 16 have been severed from any of that acreage? 17 MR. KIENLEN: Those acreages were determined when we 18 started to look at water rights for the North Delta Water 19 Agency. Those acreages were determined from studies that 20 were made following the 1956 cooperative studies. Under 21 the 1956 cooperative studies the Bureau of Reclamation did 22 extensive title researches for those particular studies 23 within the valley. After completing that -- and they then 24 undertook a similar set of studies within the Delta itself. 25 And those were performed in a similar manner. CAPITOL REPORTERS (916) 923-5447 2939 1 And we utilized that information, and probably I 2 should have said assumed, because we have always looked at 3 the 1956 cooperative studies, the back line as lands within 4 that have been assumed to be riparian. Many of us have 5 used that. And this is the same kind of an analysis that 6 was made, but this was done in -- by the Bureau down in the 7 Delta. And there's a set of reports that set forth these. 8 MR. HOWARD: So this conclusion is based exclusively 9 on the studies that were done by the Bureau in 1956? 10 MR. KIENLEN: That's correct. 11 MR. HOWARD: You also say that the Delta lowlands, 12 and by that I assume you mean the entire 205,820 acres of 13 Delta lowlands; is that correct? I'm talking about number 14 six. You refer to the Delta lowlands are subirrigated. I 15 guess my first question is: Is that the entire 205,820 16 acres? 17 MR. KIENLEN: Well, those Delta lowlands are defined 18 as those lands that are at elevation five feet or lower. 19 And almost all of those are subirrigated. Some of them may 20 be flow irrigation, various types, but the water levels 21 that are maintaining the crops are maintained with the 22 drainage pumps. 23 MR. HOWARD: I guess what I'm trying to get at is 24 that your testimony says that they're subirrigated and that 25 these lands are maintained by drainage pumps. And I'm CAPITOL REPORTERS (916) 923-5447 2940 1 interested in knowing whether or not for the irrigation of 2 those 205,820 acres of lowlands water is actually diverted 3 out of the channels of the Delta, or whether it's all 4 exclusively subirrigated. 5 MR. KIENLEN: I wouldn't say it is exclusively 6 subirrigated. Some of it is probably diverted from the 7 channels and then placed on the lands. I think there is a 8 variation, the majority of it I would assume is 9 subirrigated. 10 MR. HOWARD: Thank you. 11 C.O. CAFFREY: Any other questions from staff? 12 Anything from the Board Members? Mr. Brown. 13 ---oOo--- 14 CROSS-EXAMINATION OF NORTH DELTA WATER AGENCY, et al. 15 BY THE BOARD 16 MEMBER BROWN: What prompted the 1981 agreement and 17 we're talking about, what, three-million-dollars plus in 18 obligations? Was it from the District? What brought that 19 about? Why did you do that? 20 MR. O'BRIEN: How long do you have, Mr. Brown? 21 C.O. CAFFREY: We prefer the short succinct clear 22 answer. 23 MEMBER BROWN: I know reliability was a part of it. 24 MEMBER DEL PIERO: That would take about three days. 25 MR. KIENLEN: Well, Mr. Brown, this contract CAPITOL REPORTERS (916) 923-5447 2941 1 followed -- we worked in the valley to end up with water 2 right settlement agreements that ended up finally with 3 contracts with the Bureau for those lands above the Delta. 4 At the time that those contracts were entered into 5 the Bureau had determined that they ought to deal with the 6 valley first and keep the Delta separate. Having, now, 7 entered into the contracts with the districts within the 8 valley, the area within the North Delta Water Agency was 9 still trying to seek a resolution and a water right 10 settlement agreement and that is what prompted the North 11 Delta to go -- to go forward with the contract. 12 And it was a continuation of that particular 13 process. And they wanted to end with up a contract and to 14 settle their water rights. And, initially, the contract 15 negotiations were held between the Agency, the Bureau of 16 Reclamation and the Department of Water Resources. 17 MEMBER BROWN: Did you claim riparian rights to all 18 those lands at that time? 19 MR. KIENLEN: Oh, yes. 20 MEMBER BROWN: And you still went ahead with the 21 contract and the agreement? 22 MR. KIENLEN: This is to settle and provide us with 23 an insurance policy to -- so that we had a resolution of 24 that. And that was why we went forward with it. 25 MEMBER BROWN: Thank you, Mr. Chairman. I just CAPITOL REPORTERS (916) 923-5447 2942 1 thought I'd take advantage of a little bit of history while 2 we had the opportunity here. 3 C.O. CAFFREY: Thank you, Mr. Brown. Any -- 4 Mr. Stubchaer. 5 C. O. STUBCHAER: Honing in on Mr. Brown's 6 question, how is the agreement enforced, by the maintenance 7 of water quality at the different stations? 8 MR. KIENLEN: Yes, it is. There have been times 9 when -- when the water quality criteria, particularly at 10 Ebington hasn't always been met. And we had had problems 11 with the Department. We've threatened litigation at times 12 and back and forth, but that station has been the problem. 13 And it hasn't been 100 percent. 14 But the criteria is what provides the protection. 15 The deficiency is set in terms of there's not a deficiency 16 taken in terms of quantities that are taken for water use, 17 but deficiency is defined by the criteria. 18 C. O. STUBCHAER: Has an estimate been made of the 19 range of additional releases from Oroville that have been 20 required by this agreement, do you know? 21 MR. KIENLEN: I'm not aware of one. 22 C. O. STUBCHAER: In drafting the agreement to 23 which the Delta water rate is applied, as I read it, was 24 there an estimate, then, on the average quantity of water 25 that would be required to require the Delta water rate to CAPITOL REPORTERS (916) 923-5447 2943 1 come up with $170,000? 2 MR. KIENLEN: There were -- there were several 3 studies done at the time we -- we entered into this. We 4 had originally a water rights study that was done similar 5 to those that were done for the upstream districts. 6 The Department did not want to utilize that 7 particular approach. They wanted to do a with project and 8 without project analysis. And the Department did that. We 9 found that the results of their analysis was not all that 10 different from our more pure water rights approach. And we 11 decided to use that. And its been a while now, 12 Mr. Stubchaer, but I think it was those that -- those 13 analyses and I think it was the Department's analyses 14 that -- you know, from which we developed that rate. 15 C. O. STUBCHAER: Okay. Thank you. 16 C.O. CAFFREY: All right. Thank you, Mr. Stubchaer. 17 Mr. O'Brien, do you have any redirect? 18 MR. O'BRIEN: No, I don't. 19 C.O. CAFFREY: Mr. Sandino? 20 MR. SANDINO: No, I don't. 21 C.O. CAFFREY: Thank you, gentlemen. Do you, now, 22 wish to offer your exhibits, Mr. O'Brien? 23 MR. O'BRIEN: Yes, Mr. Caffrey. I'd like to offer 24 NDWA Exhibits 1 through 14 into the record. 25 C.O. CAFFREY: All right. That does synchronize? CAPITOL REPORTERS (916) 923-5447 2944 1 MS. WHITNEY: Yes. 2 C.O. CAFFREY: Any objection to accepting the 3 exhibits as enumerated? There's no objection and your 4 exhibits are accepted into the record. 5 And, Mr. Sandino, I guess we're going to accept 6 yours at a later date? 7 MR. SANDINO: Yes. 8 C.O. CAFFREY: That, then, completes your case in 9 chief, Mr. O'Brien, thank you for being here and being 10 patient as you waited. 11 MR. O'BRIEN: Thank you very much. 12 C.O. CAFFREY: Thank you, gentlemen. I believe, 13 then, we can proceed to Woodbridge Irrigation District. 14 Mr. Gallery, is that correct, sir? 15 MR. GALLERY: That's correct. We'll go off the 16 record for just a moment. 17 (Off the record from 2:01 p.m. to 2:02 p.m.) 18 C.O. CAFFREY: Back on the record. 19 MR. GALLERY: Woodbridge Irrigation District has 20 three witnesses that need to be sworn, Mr. Caffrey. 21 C.O. CAFFREY: Thank you, Mr. Gallery. Gentlemen, 22 please, stand and raise your right hand. Do you promise to 23 tell the truth in these proceedings? 24 THE PANEL: I do. 25 C.O. CAFFREY: Thank you. You may be seated. You CAPITOL REPORTERS (916) 923-5447 2945 1 may proceed with an opening statement, if you wish, 2 Mr. Gallery. 3 ---oOo--- 4 OPENING STATEMENT BY WOODBRIDGE IRRIGATION DISTRICT 5 BY DANIEL F. GALLERY 6 MR. GALLERY: Thank you. The evidence that 7 Woodbridge Irrigation District is presenting is intended to 8 establish essentially this: That Woodbridge is 9 conditionally approving and recommending the East Bay MUD 10 settlement agreement to the Board. We're recommending it 11 to the Board, because the -- Woodbridge believes that it -- 12 the settlement agreement of East Bay MUD provides 13 substantial benefits to the fishery in the Mokelumne River; 14 and that it also provides important additional water into 15 the Delta particularly during dry and critical years. 16 Our fishery witness Mr. Cramer will testify in 17 support of the fishery benefits that come from the 18 agreement. Now, the -- our conditional support of the East 19 Bay MUD settlement will be -- the reasons for it 20 essentially will be explained by the testimony of 21 Mr. Christensen and Mr. Hanson. But, essentially, it 22 amounts to this "That the East Bay MUD settlement attaches 23 a list of flows that has two columns of flows. The first 24 column says that the -- that the East Bay MUD will make 25 certain releases from Camanche Dam. And the second column CAPITOL REPORTERS (916) 923-5447 2946 1 says that this should provide expected flows below 2 Woodbridge in specified amounts. 3 That second column, those flows, the expected 4 flows are just below where Woodbridge diverts its water out 5 of the Mokelumne River for irrigation. And the expected 6 flows column presume in some cases that Woodbridge will not 7 divert that expected flows water. And the fact is that 8 Woodbridge diverts under old -- pre-1900 water rights from 9 the Mokelumne River. And that it also has entered into an 10 agreement with East Bay MUD, entered into an agreement in 11 1965 that guarantees that Woodbridge will have 60,000 12 acre-feet of water per year. 13 And the fact is that Woodbridge has for many years 14 diverted more than 60,000 acre-feet under its rights when 15 the water is available. And what we find is that if -- if 16 those expected flows under East Bay MUD's settlement are to 17 be obtained every year as scheduled, Woodbridge would have 18 to, in fact, limit its diversions under its own rights in 19 some of those years. 20 And because of that Woodbridge, then, feels that 21 it would be making a contribution to this East Bay MUD 22 settlement. And making a contribution to the settlement 23 then really makes East Bay MUD -- makes Woodbridge a quasi 24 party to the settlement agreement. And for that reason 25 we -- our condition of approval is that the Board accept CAPITOL REPORTERS (916) 923-5447 2947 1 the East Bay MUD settlement as the contribution of the 2 entire Mokelumne River, not just East Bay MUD, but East Bay 3 MUD, Woodbridge and the whole river. 4 There's a couple more factors there. The Joint 5 Settlement Agreement contemplates that other parties along 6 the river will be participants in the improvements that are 7 going to be on the river. One of the major improvements 8 will be to improve fish passage facilities at Woodbridge 9 Dam. And Woodbridge has pledged itself to go ahead and 10 make those fish passage facilities improvements. And 11 Mr. Christensen will explain that in a little detail. 12 So Woodbridge is willing to make this commitment. 13 And its Board of Directors has adopted a resolution, which 14 is one of our exhibits, that it will, in fact, limit its 15 diversions in the future so that those expected flows below 16 Woodbridge Dam will occur as contemplated under the East 17 Bay MUD Settlement Agreement. 18 Woodbridge will be doing that against a background 19 that it really does not have quite enough water for its 20 needs at present. And, in fact, it has a severe overdraft 21 in its groundwater. But against those circumstances the 22 District is willing to make that commitment, but with the 23 stipulation that the Board is willing to accept, accept the 24 East Bay MUD Settlement Agreement as the contribution of 25 the Mokelumne River under the 1995 plan. CAPITOL REPORTERS (916) 923-5447 2948 1 So with that I would like to ask our first 2 witness, Mr. Christensen, to testify, summarize his 3 testimony. 4 C.O. CAFFREY: And, excuse me for interrupting you, 5 Mr. Christensen, and the other witnesses. I trust -- 6 THE AUDIENCE: Microphone. 7 C.O. CAFFREY: Thank you. I trust you that you, 8 gentlemen, were here a little while ago when I reiterated 9 the time limits on the direct testimony. Thank you. 10 Please proceed, Mr. Christensen. 11 MR. CHRISTENSEN: Thank you, Mr. Caffrey. Thank you, 12 Mr. Gallery, for the introduction. My name is Andy 13 Christensen and I'm the general manager for the Woodbridge 14 Irrigation District and Agricultural Irrigation District 15 located in Northern San Joaquin County. 16 The District and its predecessors have the oldest 17 recorded diversion rights on the Mokelumne River of any of 18 the major diverters with a history that traces back to 19 1886. My testimony exhibit marked WID Exhibit Number 1 is 20 really an introduction to the testimony of Woodbridge 21 Irrigation District as -- 22 MR. GALLERY: I overlooked something. May I 23 interrupt? 24 C.O. CAFFREY: By all means, Mr. Gallery. 25 MR. GALLERY: I should have asked you, CAPITOL REPORTERS (916) 923-5447 2949 1 Mr. Christensen, before you began to summarize if Exhibit 2 Number 1 is a true and correct copy of your testimony? 3 MR. CHRISTENSEN: Yes, it is. 4 MR. GALLERY: Okay. 5 MR. CHRISTENSEN: As will be presented by our panel 6 of witnesses here today, the District's testimony today 7 will show and its the purpose that the East Bay Municipal 8 District's Joint Settlement Agreement, or as it has been 9 commonly called this morning interchangeably, MOU, the 10 acronym which indicates this agreement that's before this 11 Board, will result in a release of water that would 12 substantially exceed the quantities of water which would be 13 required from the Mokelumne River if the 300,000 acre-foot 14 settlement formula, which has been discussed for diverters 15 on the Sacramento River, were applied to the Mokelumne 16 River. Now, that formula was a discussion of some of the 17 earlier proceedings of this Board. 18 The Board should accept the flows of the EBMUD JSA 19 as a total Mokelumne River share of flows including the 20 contributions for Woodbridge Irrigation District in meeting 21 the objectives of the Bay-Delta Water Quality Control Plan. 22 Woodbridge Irrigation District is a contributor to the 23 flows released in the 1998 Joint Settlement Agreement, even 24 though Woodbridge is not a party to the agreement. 25 Woodbridge early on when the agreement was a -- CAPITOL REPORTERS (916) 923-5447 2950 1 was first discussed back in 1994/'95 was asked to be a 2 signatory to the POA, which was an agreement between the 3 U.S. Fish and Wildlife Service and the California 4 Department of Fish and Game with East Bay MUD when the FERC 5 settlement offer was first being discussed, it was at that 6 time that we had an opportunity to sign the agreement. 7 The flows provided by East Bay MUD's agreement are 8 the flows that Woodbridge is legally entitled to deliver 9 under its post 1914 rights in addition to the regulated 10 base supply amounts under the 1965 agreement. When 11 additional water is available, Woodbridge has a right to 12 divert more than the 60,000 acre-foot provided in the 13 agreement; and more than the 39,000 acre-foot minimum flows 14 when the inflow to Pardee is less than 375,000 acre-feet as 15 provided in the agreement. 16 The Woodbridge Irrigation District Board of 17 Directors have agreed by resolution, which is also provided 18 in my -- as part of the -- my testimony in WID Exhibit 19 Number 9, that they will not divert these flows if the 20 Board, if the State Board, I should say, deems these flows 21 as being adequate to meet the obligations and the 22 contributions of East Bay MUD; but more importantly that of 23 Woodbridge Irrigation District as required by the Water 24 Quality Control Plan. 25 The East Bay MUD Joint Settlement Agreement CAPITOL REPORTERS (916) 923-5447 2951 1 provides for other types of participation in other ways to 2 help the fishery and the environment in addition to these 3 flows. It also provides for participation of those parties 4 along the river to meet objectives of protecting the Lower 5 Mokelumne River ecosystem. 6 Woodbridge has been a participant and a 7 stakeholder in these programs. Again, we were not a 8 signatory to the agreement, but there are several things 9 that Woodbridge has done that would indicate that it has 10 been a participant and a stakeholder in these programs. 11 Woodbridge and the City of Lodi are cosponsors of a 13.5 12 million dollar effort to implement key elements of existing 13 resource plans, those being of the California Department of 14 Fish and Game, U.S. Fish and Wildlife Service and the 15 CalFed in its n its plan to increase the fall-run chinook 16 salmon and steelhead populations. 17 This was part of a program that we called the 18 Lower Mokelumne River Restoration Plan, it's another 19 acronym for people to remember. But it's part of an 20 ambitious plan to do what we can agree that can be done to 21 improve conditions for anadromous fish on the Mokelumne 22 River. 23 Key elements to the plan include new fish passage 24 facilities at Woodbridge Dam, screening of the -- new 25 screening for the diversions at Woodbridge Irrigation and CAPITOL REPORTERS (916) 923-5447 2952 1 North San Joaquin, and up to -- screening unscreened 2 diversions of up to 58 unscreened diverters upstream of 3 Woodbridge Irrigation's dam. Also, spawning gravels would 4 be enhanced and the corridor would be improved. 5 This year $1,575,000 was awarded by CalFed coming 6 through the U.S. Bureau of Reclamation to complete 7 environmental permitting and engineering for these 8 facilities at Woodbridge. Additionally, Woodbridge has 9 been an active participant in the Mokelumne River technical 10 committee, Mokelumne River Technical Advisory Committee, 11 which acronym, MRTAC, includes the U.S. Fish and Wildlife 12 Service, California Department of Fish and Game, other 13 agencies such as the Save the Mokelumne, San Joaquin County 14 and various other environmental groups in addition to 15 Woodbridge. 16 MRTAC meets to coordinate activities of these 17 agencies for the purpose of improving the fishery on the 18 Mokelumne River and exchanging information on the fishery 19 management, fishery flow management, fish passage issues 20 and fish monitoring. Woodbridge in the past and in the 21 future has agreed to make its facilities open and available 22 to critical studies of its own facilities, but also to 23 various programs that have helped the Mokelumne River 24 fishery flourish. These include the truck/trap program 25 that was talked about this morning, various fish release CAPITOL REPORTERS (916) 923-5447 2953 1 projects of juvenile and yearling salmon and has assisted 2 with fish passage issues to accommodate fish migration to 3 the greatest extent possible. 4 The reduction of the District's historical water 5 usage, however, has resulted in increased usage of 6 groundwater from San Joaquin County's overdrafted 7 groundwater basis. The District's historical use of 8 Mokelumne River water has declined from approximately 9 100,000 acre-feet in the 1970's to about 57,000 acre-feet 10 on average for the period 1988 through 1997. The demand 11 for groundwater has increased and is further depleting the 12 overdrafted groundwater basin. 13 The reduction of the surface water supplies was 14 caused by the expiration of the -- of the East Bay MUD's 15 Interim Supply Agreement and also by dry-year deficiencies 16 most recently reoccurring in 1991, 1992 and 1994 creating 17 conditions uncertainty about Woodbridge's ability, 18 especially with growers, to deliver the water that they 19 need for their crops. This has prompted a lot of growers 20 to go to wells to reduce that uncertainty and has had an 21 effect -- a negative effect on the groundwater system, 22 further depleting the groundwater. 23 Woodbridge and its growers in order to meet these 24 deficiencies have employed a number of conservation efforts 25 which I described in my testimony. And not only has CAPITOL REPORTERS (916) 923-5447 2954 1 Woodbridge, as a District, employed conservation, but our 2 District as a whole, which has a large amount of grape 3 acreage has undergone a renaissance in terms of the way it 4 uses water. A huge portion of our District has gone to 5 drip irrigation, which is recognized for its water 6 conservation efficiency. And the District, as a whole, has 7 done what it can to conserve water. 8 Even with these conservation efforts, conservation 9 cannot be counted on to meet the dry year water needs of 10 our District, particularly, when we're reduced to 39,000 11 acre-feet in dry years available under the 1965 agreement. 12 Further reductions to our water supply will inevitably 13 result in greater reliance on the overdrafted groundwater 14 supply which is already in trouble. 15 Implementation of the Bay-Delta quality flow 16 objectives should not sacrifice the fishery on the 17 Mokelumne River. The East Bay MUD settlement represents 18 the best available solution for protecting the Mokelumne 19 River -- both the Mokelumne River fishery and an inevitable 20 solution for meeting the standards of the Water Quality 21 Control Plan when compared to flows and other tentative 22 settlements that are before the Board, or will come before 23 the Board on other river systems. 24 The number of returning salmon that have come back 25 to the Mokelumne River have increased substantially since CAPITOL REPORTERS (916) 923-5447 2955 1 1992. Current and future improvement programs, such as the 2 one I described earlier, the Lower Mokelumne River 3 Restoration Program that we're embarked in, will provide 4 temperature in water quality benefits which will add a 5 benefit not only for the Mokelumne River, but also for the 6 Delta; and will help to meet the water quality objectives. 7 The State Water Resources Board should take into 8 consideration the affects of the Mokelumne River fishery in 9 considering strategies that call out for additional flows 10 on the Mokelumne River beyond the ones that have been 11 proposed in the JSA. 12 In conclusion, I would ask that the State Board 13 recognize that Woodbridge has and is making a contribution 14 to the settlement flows of the Mokelumne River and ask that 15 the Joint Settlement Agreement be used to meet the -- or be 16 considered as meeting the 1995 Water Quality Plan 17 objectives. 18 If the settlement agreement, the JSA is not 19 accepted, or if the agreements as a whole are determined to 20 be inadequate, then, the responsibility for meeting those 21 objectives should fall upon the federal and state projects 22 who are largely responsible and legally accountable for the 23 problems in the Delta. That concludes my testimony. 24 MR. GALLERY: Let's turn to Mr. Hanson. 25 Mr. Hanson, is Exhibit 2 a copy of your written CAPITOL REPORTERS (916) 923-5447 2956 1 testimony? 2 MR. HANSON: Yes. 3 MR. GALLERY: And do you concur that that is true and 4 correct? 5 MR. HANSON: I do. 6 MR. GALLERY: And is Exhibit 3 of Woodbridge a 7 statement of your qualifications? 8 MR. HANSON: It is. 9 MR. GALLERY: Would you then go ahead and summarize 10 your testimony? 11 MR. HANSON: Starting with -- briefly with Woodbridge 12 Irrigation District, this is the City of Lodi and lies 13 generally east of Highway 99. 14 C.O. CAFFREY: Excuse me, Mr. Hanson. Is that one of 15 your exhibits, Mr. Gallery? 16 MR. GALLERY: Yes. 17 C.O. CAFFREY: Would you identify them as you put 18 them up, please. 19 MR. GALLERY: I'm sorry. That's Exhibit Number 6. 20 MR. HANSON: Woodbridge Irrigation District 21 encompasses about 41,000 acres which lies, generally, east 22 of Highway 99, south of the Mokelumne River, north of the 23 Calaveras and to the west of the Delta Sloughs. As a 24 matter of fact, the red line that I'm pointing out here is 25 the legal Delta boundary as defined in the Water Code. CAPITOL REPORTERS (916) 923-5447 2957 1 The Woodbridge -- the area encompasses about 2 51,000 acres and is made up of kind of a checkerboard that 3 includes both the Woodbridge Irrigation District and the 4 unorganized areas. 5 The remaining lands within the green areas that 6 you see there are lands that have been irrigated by 7 Woodbridge Irrigation District surface water deliveries at 8 least once in the last five years. And they total about 9 21,000 acres. The remaining lands within the -- within 10 that area are irrigated solely from the groundwater 11 sources, which receives its supply mainly from the 12 depercolation, precipitation and the irrigation return 13 depercolation of applied water from its surface deliveries; 14 and also the seepage from the canal system, which is shown 15 in blue and is quite extensive and is over a hundred miles 16 in length. 17 But it stretches from the north end of the 18 Thornton area down to the Calaveras River, a distance of 19 about 20 miles. The total length of the canal system is 20 something over a hundred miles long, only of which about 18 21 miles have been -- have been lined or piped, particularly 22 in the North Stockton area where we're now seeing 23 urbanization and some of the canals that the District 24 wishes to preserve for outfall purposes have been piped 25 through the urban areas. CAPITOL REPORTERS (916) 923-5447 2958 1 The next slide, please. This is a bar graph and 2 it's Woodbridge Exhibit Number 8. And it shows the 3 diversions by the Woodbridge Irrigation District and for a 4 couple years prior to the acquisition of the system by 5 Woodbridge, but the diversions go back to the 1980's by its 6 predecessor company. Woodbridge acquired the company in 7 1928 from the Stock Mokelumne Company and has operated ever 8 since. As you can see, the diversions have, for the most 9 part, exceeded 100,000 acre-feet in most years. And in the 10 early years clear through until you get to about the 11 1976/'77 drought, at which time we see a marked decline in 12 the diversions by Woodbridge for a number of reasons. 13 One is the severity of the drought and also the 14 likelihood of a third year following the 1977 suggested to 15 the Woodbridge Board that they take very severe steps in 16 re-establishing their water delivery policy and it made 17 some very severe changes in how they use water during which 18 periods of time they use water, as an for example, for 19 which crops. For example, rice, which is a significant 20 crop in the North Stockton at one time was denied water 21 during this period of the drought and really never came 22 back on line and that kind of curbed about 18,000 acre-feet 23 of water. 24 Woodbridge has had water right settlement 25 agreements with East Bay Municipal Utility District since CAPITOL REPORTERS (916) 923-5447 2959 1 1938. And the latest agreement, the 1965 agreement came on 2 line, of course, in 1965. And it established the firm 3 supply into Woodbridge called the interim supply, 116,700. 4 It was a block of water over and above that available to 5 Woodbridge under certain conditions, but we've never 6 really -- never really used that water and have proceeded 7 along with the interim supply until 1988. 8 The supply actually ceased in 1974 under the terms 9 of the agreement, but it was extended from time to time by 10 supplemental agreements and was finally terminated by East 11 Bay at the end of the 1988 season. That supply was subject 12 to a 35-percent deficiency, which during certain dry years 13 took the supply availability down to 75,855 acre-feet. 14 At the end of the '88 and the onset of the 1989 15 irrigation season, Woodbridge was subject to, then, a 16 further reduction in the supply, down to what's called, "a 17 permanent regulated base supply," which is 60,000 18 acre-feet, made available to Woodbridge on a firm basis, 19 subject again to 35-percent deficiency which takes us back 20 down to a 39,000 acre-foot availability during certain dry 21 years. 22 Of particular note, during this last period since 23 1989 is this -- is three situations that existed that 24 affected the actual supply available to Woodbridge. The 25 first, of course, is the three years that we see here where CAPITOL REPORTERS (916) 923-5447 2960 1 they were limited to the 39,000. We see three years in 2 which Woodbridge was actually diverting more than the 3 60,000. And those are the years that Mr. Gallery talked 4 about as being water available at Woodbridge's point of 5 diversion and surplus to East Bay's downstream release 6 requirements and was available to Woodbridge under the 7 priority of its licenses on an as-when-available basis. 8 Those flows based on the East Bay MUD's studies 9 that accompany this Exhibit 4 in appendix F and G on the 10 tables noted as, "Flow below Lodi Lake," suggest -- and you 11 compare those studies to the Joint Settlement Agreement 12 requirements for the expected flows below Woodbridge, 13 suggest that over the long haul these flows in excess of 14 the 60,000 under the 1961 Fish and Game Agreement would be 15 available about 60 percent of the years. 16 As a result of the Joint Settlement Agreement, we 17 estimate that that 60 percent will be reduced down to 18 about -- to about 50 percent. It's not a big -- in large 19 numbers, but we're talking about a fair amount of water, 20 because when this excess water is available under the flow 21 regiments under the Joint Settlement Agreement are still 22 available in amounts that would allow Woodbridge to take 23 probably as much 15,000 acre-feet of water in most of the 24 years when that water is available in addition to their 25 60,000. CAPITOL REPORTERS (916) 923-5447 2961 1 The other thing that affects the availability of 2 water to the Woodbridge is the fact that under the 3 agreement, the 60,000 acre-feet, 50 percent of it has to be 4 used prior to July 1. So that means that there's 30,000 5 left over for the post-July 1 season which equates to a 6 seasonal demand of about 55 -- 50 to 55,000 acre-feet of 7 demand that could really use that 60,000 acre-feet of 8 water. Now, go ahead and put the next -- how are we doing 9 on time? 10 C.O. STUBCHAER: Eleven minutes. 11 MR. HANSON: Got it made. This is -- I prepared 12 three sets of groundwater contour maps. First is spring of 13 1960, which shows that, essentially, all of the Woodbridge 14 area is -- this is zero contour line -- and this is Exhibit 15 Number 10 incidentally. 16 Essentially, all of the Woodbridge area is above 17 the sea level. This is zero groundwater elevation line. 18 And we had elevations that were as high as 30 feet above 19 sea level. Get the next slide. This is 1975 just prior to 20 the drought. We see, now, the zero contour line has 21 receded up to the north. And we're probably at least 22 two-thirds is above the sea level and the rest has fallen 23 below the sea level with a decline down to a minus 15 feet 24 in the south part of the District. 25 The significance of these -- the three groundwater CAPITOL REPORTERS (916) 923-5447 2962 1 contour maps that I'll put up and I'll talk about the first 2 two first, and that is the interval of time between the 3 spring of 1960 and the spring of 1975 represented a period 4 of time that was equivalent to the long-term average of 5 rainfall. This period of time also was indicative of -- 6 reflected the surface water delivery of about 102,000 7 acre-feet per year for this 15-year period. 8 MEMBER BROWN: Would you put the other one up for 9 just a minute, Jim? 10 MR. HANSON: Put the other contour map up. 11 MEMBER BROWN: Give me those contours. 12 C.O. CAFFREY: Please, identify it, again, for the 13 record. 14 MR. HANSON: Yeah. Woodbridge Exhibit Number 10, 15 again. 16 MEMBER BROWN: Explain right there. 17 MR. HANSON: The zero contour line. 18 MEMBER BROWN: Then, go to the next one. And this is 19 15 years later? 20 MR. HANSON: 15 years later. 21 MEMBER BROWN: And what is it out there now, where 22 the zero contour line was? 23 MR. HANSON: Right there. That's where it was in 24 1975. Prior to that time it was -- 25 MEMBER BROWN: So it's dropped how much? CAPITOL REPORTERS (916) 923-5447 2963 1 MR. HANSON: Well, in the area to the south it's 2 dropped about 15 feet below sea level in that 15 years. 3 MEMBER BROWN: So you lost about 15 feet in 15 years, 4 about a foot a year? 5 MR. HANSON: Right. And you can see we're developing 6 a trough. And that trough is being exacerbated by the 7 pumping depression that underlies the City of Stockton. 8 MEMBER BROWN: Excuse me, Mr. Del Piero had a 9 comment. 10 MEMBER DEL PIERO: You see this is something. Wait 11 until you see the one from -- is it '92? 12 MEMBER BROWN: '92. 13 MR. HANSON: '92. 14 MEMBER DEL PIERO: Yeah. 15 MEMBER BROWN: Okay. Thank you, Mr. Chairman. 16 MR. HANSON: And, now, we're seeing this is the 17 spring of '92, Exhibit Number 12. I might add, again, 18 we're looking at a period between '75 and '92 that is 19 approximately equivalent to the long-term average rainfall 20 of 17 inches over this period of interval, but now we've 21 reduced our water supply availability from the Woodbridge 22 Canal down to 67,000 acre-feet a year. And we see now that 23 the -- 24 C.O. CAFFREY: One at a time. You didn't hear 25 Mr. Del Piero, Mr. Hanson. Go ahead, Mr. Del Piero. CAPITOL REPORTERS (916) 923-5447 2964 1 MEMBER DEL PIERO: I said Mr. Brown in space, that's 2 called a black hole. 3 C.O. CAFFREY: Go ahead, Mr. Hanson. 4 MR. HANSON: Now, we have a zero contour line which 5 is pretty much limited to a small area. And this is in '92 6 east -- north -- northwest of the City of Lodi. This 7 contour at the south end of the area which was above sea 8 level in '60 and about minus 15 and in '75 is now minus 35 9 feet. 10 And during this time the pumping depression under 11 the City of Stockton and to the east of the City of 12 Stockton was at about minus 70 feet. And this trough that 13 is developing which is pulling water from this area now 14 down into this pumping depression. And we see that the 15 formation of contours, which suggest that with further 16 decline in these contours that we might start anticipating 17 somewhat eastward movement from lower quality water from 18 the Delta. 19 MEMBER BROWN: Mr. Chairman? 20 C.O. CAFFREY: Yes, Mr. Brown. 21 MEMBER BROWN: Mr. Hanson, I know you're very 22 experienced in these areas, what do you attribute this to? 23 Is this a willful condition caused by local irrigation, or 24 is this groundwater basin -- 25 MR. HANSON: I think this is a combination. And the CAPITOL REPORTERS (916) 923-5447 2965 1 problems that are developing in the North San Joaquin area, 2 which lies to the east and the large pumping depression 3 that we see in the Stockton area is pulling this water down 4 this way. And so the radiances are seeping out of the area 5 to the south. 6 MEMBER BROWN: It looks like you have some very 7 specific cones of depression here, but the problem is more 8 of a regional concern than a District concern? 9 MR. HANSON: This is a regional concern, a general 10 decline in the Eastern San Joaquin groundwater area. 11 MEMBER BROWN: Yeah. 12 MR. HANSON: And I think the problems are being 13 reflected in the Woodbridge area. One is that the 14 surface -- as areas -- the groundwater to the east are 15 depleted and the subsurface inflow to the Woodbridge area 16 diminishes, we see as a result of this pumping depression 17 here, we're seeing steeper radiance in flows of water from 18 the Woodbridge area into the Stockton area. 19 MEMBER BROWN: Thank you. 20 MR. HANSON: It's very severe, I mean this is a very 21 clear case of groundwater overdraft. And I didn't mention 22 it, but this is a fully-developed agricultural area. I 23 mean as you drive down I-5 you can see the whole thing is 24 booming with vineyards and orchards. 25 MEMBER BROWN: Mr. Chairman? CAPITOL REPORTERS (916) 923-5447 2966 1 C.O. CAFFREY: Yes, Mr. Brown. 2 MEMBER BROWN: May I ask another question? In your 3 pumping program, you have I think around 55,000 -- 51,000 4 acres that you irrigate and you divert. You said you were 5 able to supply surface irrigation water to about 21,000 6 acres. 7 MR. HANSON: The 21,000 acres was the -- as shown as 8 green on Exhibit 6 represented the lands that had been 9 irrigated at least once in the last five years. 10 MEMBER BROWN: By surface water? 11 MR. HANSON: By surface water. The actual deliveries 12 of surface water on a year-by-year basis are around 12 to 13 13,000 acres are irrigated by surface water. 14 MEMBER BROWN: The rest is irrigated by groundwater? 15 DR. HANSON: Groundwater pumping. 16 MEMBER BROWN: Do you have a conjunctive use or an in 17 lieu program on which water years that you have within the 18 District? 19 DR. HANSON: Say again. 20 MEMBER BROWN: Do you have a conjunctive use program, 21 or an in lieu pumping program when you have lots of surface 22 water? 23 MR. HANSON: Yes. When we have -- when that -- that 24 extra water is available over and above the 60,000, the 25 irrigation -- that water is taken and the irrigation season CAPITOL REPORTERS (916) 923-5447 2967 1 is extended and that additional water is put to use out 2 there when it's available. 3 MEMBER BROWN: But if you only have 21,000 acres that 4 you can reach, you have another 30,000 possible? 5 MR. HANSON: For the District for the capitol water 6 supply. 7 MEMBER BROWN: Well, in some years you do, right? 8 MR. HANSON: Some years, yes. 9 MEMBER BROWN: But you can't reach them? 10 MR. HANSON: We can reach about -- we can reach 11 about -- how many acres could you irrigate if you had 12 enough water from the surface supply? 13 MR. CHRISTENSEN: We could irrigate, traditionally, 14 is 18,000 acre-feet? 15 MR. CRAMER: I don't have it, Mike. I'm sorry 16 MR. CHRISTENSEN: 18,000 is a history. 17 MEMBER BROWN: Well, the question is: If you have 18 18,000 acres, but you can have your own term average use is 19 somewhere around 75 or 80,000 acre-feet, it seems like 20 there may be some opportunity here. 21 MR. HANSON: One thing that I should point out is 22 that we have -- because of the length of the system we're 23 dealing with an area that stretches 20, a hundred miles of 24 canal unlined. That we lose probably 15 to 18,000 in a 25 normal year to canal channel loses. So we're down to CAPITOL REPORTERS (916) 923-5447 2968 1 40,000 or even less. 2 MEMBER BROWN: The District loses, but the region 3 certainly doesn't, it goes back into the groundwater, 4 right? 5 MR. HANSON: Right. It's not loss to the area. 6 MEMBER BROWN: Okay. Thank you, Mr. Chairman. 7 C.O. CAFFREY: You're welcome, Mr. Brown. I'm going 8 to certainly allow Mr. Del Piero to ask some questions, but 9 I want to remind the Board Members that if you have a 10 series of questions, it's better to wait until the direct 11 is finished, because your questions might get answered then 12 and we don't divert the direct. 13 Go ahead, Mr. Del Piero. 14 MEMBER DEL PIERO: In the last -- one question in one 15 point in regards to the last answer to Mr. Brown's 16 question. Even though -- you're correct, Mr. Brown, 17 there's nothing lost to the region, it may be lost to the 18 District because of the underlying ditches. 19 The problem is, the previous map indicated that 20 even though that water is being lost to the region and 21 ostensively being percolated back into the ground, the hole 22 keeps getting deeper every year. 23 You made a comment and I just wanted you to be a 24 little more precise in terms of what you mean. You 25 indicated that as that overdraft continues, lesser quality CAPITOL REPORTERS (916) 923-5447 2969 1 water from the Delta will be intruding. Do you want to 2 articulate what you mean by that? 3 MR. HANSON: Well, in the Stockton area where we do 4 have the severe pumping depression, there is evidence of 5 the intrusion of that quality of water from west to east. 6 MEMBER DEL PIERO: What do you mean by, "bad quality 7 water"? 8 MR. HANSON: Well, the old quarry underlies the 9 Delta. 10 MEMBER DEL PIERO: Salt, basically? 11 MR. HANSON: Yes. 12 MEMBER DEL PIERO: And once that happens has it been 13 the experience of the District, or at least in your 14 experience that those aquifers are at least to compromise 15 for future utilization? 16 MR. HANSON: That's my opinion. 17 MEMBER DEL PIERO: Thank you. 18 MR. HANSON: We haven't seen that situation, yet, 19 further north in the area adjacent or opposite Woodbridge. 20 But as this area continues to deplete, I'm concerned that 21 we're going to start seeing the same situation develop. 22 What I've prepared here is Woodbridge Exhibit 23 Number 13 which is a map which depicts lines of equal 24 groundwater change for the two periods that we talked 25 about. CAPITOL REPORTERS (916) 923-5447 2970 1 Exhibit 11 is the change map from 1960 to 1975. 2 And what this shows is lines that look like contour lines, 3 but they're really lines of equal change from 1960 to '75. 4 The red or light pink areas depict the changes ranging from 5 a line of zero change down to a line of about minus 20 6 feet, 20 to 25 feet, the darker areas being the areas of 7 the greatest change. For example, this area is -- has 8 dropped from between 20 and 25 feet in 15 years. This area 9 has dropped below 20 feet. Yet, to the north we see that 10 we have an area that has actually -- has actually risen 11 during that period of 1960 to 1975. 12 You want to get the next one. This is the same 13 kind of a map. This is Exhibit Number 14. And it shows, 14 now, the changes that occurred between the period of '75 to 15 '92. As you can see that we no longer have any blue areas. 16 This little area out here to the west is just put there to 17 kind of accent the zero change line. But we see now that 18 we have changes running -- ranging from zero, 5, minus 10, 19 minus 15, minus 10, minus 15, minus 20, minus 25, minus 30 20 feet and probably between 30, 35-foot decline in 30 years 21 in this southern area. 22 In terms of just rough comparisons is that the 23 area of decline for the zero to 20 foot-range increase 24 about 40 -- 40 percent? In other words, this area 25 increased about 40 percent from the zero to the 20 foot CAPITOL REPORTERS (916) 923-5447 2971 1 over the previous period. And this period from the 20 to 2 the 35-foot range increased over 25 percent. 3 The summary affect is that under the delivery of 4 water rights it has a permanent regulated base supply 5 guaranteed by the 1965 East Bay MUD agreement that supports 6 demand of somewhere in the neighborhood of 55,000 7 acre-feet. And that's -- I explained that the reason is 8 you can't -- we have to use 50 percent of the water before 9 July 1. And also in wet year -- in years where we have 10 very wet springs, we can't use the water and we can't carry 11 that unused portion of that 50 percent over to the post 12 July 1 period. So that's lost. 13 Approximately 55,000 acre-feet -- and provides 14 39,000 acre-feet in dry years. On top of this the 15 District's water rights entitled it to divert and it has 16 diverted more than 60,000 acre-feet in some years when the 17 water is available at Woodbridge Dam in excess of the 18 downstream requirements. In dry years certain supplies are 19 inadequate to meet present delivery requirements. 20 With many growers also relying on the overdrafted 21 groundwater supplies and the supply obtainable from the 22 Mokelumne River by Woodbridge is inadequate to reverse or 23 even stabilize the overdraft, under East Bay's Joint 24 Settlement Agreement the amount of water available for 25 diversion and use through the Woodbridge canal system would CAPITOL REPORTERS (916) 923-5447 2972 1 be reduced if Woodbridge curtails its diversions so as not 2 to interfere with the expected flows below Woodbridge set 3 forth in the JSA. 4 Notwithstanding, however, if the JSA is approved 5 by the State Water Resources Control Board as meeting the 6 required contribution of the Mokelumne River, Woodbridge's 7 Board of Directors is prepared to make that commitment. 8 And that concludes my testimony. 9 C.O. CAFFREY: All right. Mr. Gallery, before you go 10 to your next witness we're go take our afternoon break and 11 we'll come back in about 10 or 12 minutes and continue. 12 Thank you. 13 (Recess taken from 2:45 p.m. to 2:56 p.m.) 14 C.O. CAFFREY: We're back on the record. 15 Mr. Gallery, we're back on the record. If you would like 16 to proceed with your witness, or if you need a few seconds 17 for some discussion -- 18 MR. GALLERY: Thank you, Mr. Caffrey. We're ready to 19 go. Our last witness will be Mr. Steven Cramer. 20 Mr. Cramer, is Exhibit Number 4 a copy of your 21 testimony? 22 MR. CRAMER: We should have conferred on that. I'm 23 not sure. Do you have -- 24 MR. GALLERY: Yeah. 25 C.O. CAFFREY: Nothing like a truthful witness. We CAPITOL REPORTERS (916) 923-5447 2973 1 appreciate it. 2 MR. CRAMER: I believe it is. 3 MR. GALLERY: Is Woodbridge Number 4 a copy of your 4 testimony? 5 MR. CRAMER: Yes, it is. 6 MR. GALLERY: And is that testimony true and correct? 7 MR. CRAMER: Yes, it is. 8 C.O. CAFFREY: Mr. Cramer, could you pull that mic a 9 little closer to you so everybody can hear you? Thank you, 10 sir. 11 MR. GALLERY: And is Exhibit Number 5 a copy of your 12 qualifications? 13 MR. CRAMER: Yes, it is. 14 MR. GALLERY: Would you go ahead and summarize your 15 testimony? 16 MR. CRAMER: In my testimony I am going to make three 17 major points. I will summarize those first before offering 18 some details. First of all, the one main point is that it 19 is not possible to decouple the use of water for river uses 20 from the use of water that would be released for the Delta 21 uses. And it turns out that there is a conflict in making 22 plans for how you use this water beneficially. We run 23 into, because of the reservoirs upstream, a somewhat 24 counter intuitive situation that more water can result in 25 warmer temperatures, rather than more water producing CAPITOL REPORTERS (916) 923-5447 2974 1 cooler temperatures as one would normally expect. 2 With that problem, the best tool for evaluating 3 what the tradeoffs might be would be a simulation of the 4 physical characteristics, such as East Bay MUD has used and 5 I have relied on that for some of my testimony. 6 Second major point that I will cover is that flow 7 is only one piece of the puzzle that determines the trends 8 in returns of anadromous fish. Another major piece relates 9 to both several parts of fish management practices, 10 hatcheries, harvest and those would be necessary to 11 understand the trends, to be able to interpret the trends 12 and what is causing them. 13 And, third, that the flow benefits to the Delta 14 that are going to be derived from releasing water down the 15 Mokelumne differ from the kind of benefits you might get 16 from up stream tributaries in that water enters in the 17 central Delta, it enters at, essentially, the Terminus of 18 the San Joaquin and of the Sacramento. So there are 19 relatively few fish. This is a very short migratory 20 pathway left for fish to benefit from additional flows 21 there. And that would be an important consideration as you 22 balance the gains and the detractants from that choice. 23 Okay. I'm ready to go back and go through the 24 points. The first one is that you cannot decouple the use 25 of water in the Delta from that in the stream, you release CAPITOL REPORTERS (916) 923-5447 2975 1 it from the same point, it has to flow through the stream. 2 So if you use it up, it affects both. The problem -- back 3 in the 1992 hearing before this Board, I gave some 4 testimony on the Mokelumne. 5 And one of things that we dealt with that was a 6 major problem as I saw those data at that time was the 7 temperatures in the fall influencing the survival of eggs 8 deposited in the gravel. That was a strong recommendation. 9 There was a need to either change the stock of fish, or 10 change the way you manage the reservoir in order to 11 maintain cooler temperatures in the fall. That 12 consideration ended up, I believe, a part of the Joint 13 Settlement Agreement. One of the things that we can look 14 at -- let me back up on my own here. 15 As I -- the part that I'm talking about right now 16 where you cannot decouple, I mentioned that simulations of 17 East Bay Municipal Utility District would be a tool for 18 evaluating that tradeoff. The purpose of my testimony is 19 really here to say that we find that their conclusions are 20 accurate. That I would say the fisheries aspect of their 21 testimony is accurate in my opinion and from my experience. 22 So what happens here that we have to deal with is 23 the thermal stratification of the reservoir, and as we use 24 the water we can move to the point where the cool water 25 stored in the hypolimnion is deleted, if that happens there CAPITOL REPORTERS (916) 923-5447 2976 1 are very real and very substantial problems that occur to 2 the fish in the upper river areas. And those have been 3 witnessed and those have been documented in the past in the 4 Mokelumne. So there has to be choice of flows so you avoid 5 creating that problem. 6 Secondly, as soon as you use up flows in the upper 7 area as well, you also bite into your future volume that's 8 amplifying the problem the next year on how you deal with 9 the magnitude of the hypolimnetic cool water. Those 10 problems really showed up in the 1980s. And it was, in 11 fact, I believe at the time of the last Board hearings in 12 '92 that we had a year where we have some severe oxygen 13 depletion and a problem with mortalities at the hatchery. 14 And it shortly after that, I believe in '93, that 15 the spes cone was installed in the reservoir to help 16 overcome some of that. But nevertheless my point is, it's 17 a very real problem. It has happened in the past. And the 18 planning of the use of water has to consider how do you 19 preserve enough hypolimnetic cool water that you don't 20 create a very serious problem with warm releases and 21 potentially low dissolved oxygen in the upper river? 22 The simulations performed by the East Bay 23 Municipal Utility District provided the best possible tool 24 for evaluating how serious that problem can be, under what 25 kind of conditions you would face it. And I have reviewed CAPITOL REPORTERS (916) 923-5447 2977 1 both the fish criteria, which Dr. Hanson developed. I 2 agree with those. Those would be about the same range as I 3 would choose and the descriptions that I would choose. The 4 simulations that he -- that were performed that he relied 5 upon appear to be the appropriate means by which you judge 6 how frequently you're going to deal with fish problems. 7 The juvenile chinook move out of the system 8 primarily in May and June. That's going to be an important 9 time to consider, but more importantly I feel what have 10 been serious problems in the past have been in the fall. 11 As I mentioned we cover that in the '92 testimony that fall 12 temperatures above 15 degrees centigrade will cause 13 mortality to the eggs. And if those extend beyond that, 14 the fall chinook begin spawning, you kill chinook eggs. 15 That's an important one to avoid. 16 And in Dr.Hanson's review of the simulation 17 results he showed that the frequency of years where that 18 could become a problem would double, or triple. Even under 19 one of the worse scenarios it looks like it could jump 20 seven or eightfold. The highest level of problem you got 21 was about 20 percent of the years. Right now the problem 22 would reoccur under the settlement, or under the previous 23 agreement about the same. It would occur only in about 24 three percent of the years. So it's not all that frequent, 25 but when it happens it's very serious. And that frequency CAPITOL REPORTERS (916) 923-5447 2978 1 would go up if you used up -- any scenario you choose that 2 used more water. 3 Okay. Let's go ahead and look at a slide here. 4 Incidentally, all of the slides that I will show come 5 directly out of my written testimony. First of all, this 6 is just a table showing the monthly flows in the Mokelumne 7 River right below Camanche Dam, table one out of my 8 testimony. 9 I want to focus over here on May and June. What 10 you can see here is you have some high years where, 11 perhaps, you have like 1500 csf. Those get repeated every 12 once in a while. And other years where you only have maybe 13 170, but the fluctuation in both May and June the 14 primary -- and in April, the primary months we have to 15 worry about juvenile rearing, that fluctuation is on the 16 order of about tenfold. 17 And this -- these are not man-induced variations. 18 We influence them, certainly, but those are natural 19 variations. So it's not good thinking to expect that we 20 can duplicate high kinds of water conditions in low years 21 when people talk about high water years supplying better 22 fish survival, that's if you can put out tenfold, but you 23 can other years. The kind of manipulations we can do, much 24 more questionable, the kind of benefit you can gain in 25 terms of fish survival. CAPITOL REPORTERS (916) 923-5447 2979 1 Let's see, before we turn off of this, I do want 2 to point out a couple years I'm going to come back to. 3 Just for interpretation of adult returns, I'm going to come 4 back and compare a couple years here. Here, this year, 5 which if we came across is 1988 in the fall. That means 6 it's 1989 by the time you get to the spring. Those flows 7 are very comparable to the flows we see out here, that 8 would be '93-1994. That's '94 compared to '89 back here, 9 almost identical flows. 10 And when we look at the fish, you'll see that 11 there are dramatically different fish that came out of 12 those juvenile years. So flow isn't what buys you the 13 number of fish. And I'll revisit that when we get to that 14 graph, remember it is here. Let's go to the next. 15 I mentioned the problem that if we have too high 16 temperatures in the fall, we can create actual fish 17 mortality. In this case, this is table two from my 18 testimony. If we -- this calculates the number of days 19 where you get higher than 15.5 degrees centigrade. October 20 here -- actually, starts on October 1st here, so there's 21 only 15 -- actually, 17 days of October you include the 22 30th and 31st. 23 But from '92 to '97 you can see how many days did 24 we actually have this higher than 15.5, those would be 25 newly deposited eggs. You had a little bit of a problem in CAPITOL REPORTERS (916) 923-5447 2980 1 '95. '95 is especially noteworthy, because it carried 2 through the entire month of November and then the first 3 three days into December before that enumerated. 4 In '96 and '97 we've avoided the problem. It's 5 been avoided in several others, but what this tells is 6 that -- this is even trying to avoid the situation, and 7 there was, in this case, a fairly full reservoir. It 8 happened when there was just a sequence of very hot days. 9 If you had a low reservoir and had a problem, then you'd 10 see this much more frequently. This is a serious problem 11 to get over with. It's not just someone's imagination. 12 Next one. 13 Okay. Raise that up, there we go. I mentioned 14 that I was going to show you those years to compare. In 15 '96 those returns would have been fish that went out in 16 '94, spawned in '93, so that's this bar. I told you this 17 water year -- I showed you the juvenile water year was 18 comparable to the juvenile water year that produced this 19 bar here -- I'm sorry, one over. '90 -- I have to look at 20 my -- flash back to make sure I tell you the right years. 21 Yeah, the juvenile year of '89, these are the adult 22 returns. The juvenile year of '89 would have produced 23 returns in '91 -- 24 C.O. CAFFREY: Mr. Cramer, excuse me. We need to 25 identify for the record what document you're referring to. CAPITOL REPORTERS (916) 923-5447 2981 1 This is Figure 2 of your testimony? 2 MR. CRAMER: Figure 2 of my testimony. Yeah. I'm 3 sorry. So the returns in '96 compared to the return in 4 '91, that's '91. You see dramatically higher returns. 5 Those had almost identical conditions during the juvenile 6 out-migration. 7 Okay, the next, please. Okay. I mentioned that 8 second part of my point was going to be fish management 9 practices dramatically affect the trends. Two factors 10 really come into play. One is the native stock. And here 11 you have -- these represent the percentages of the stock 12 release. This is Figure 3, not Figure 4. This is Figure 3 13 from my testimony. From '93 to 1997 the dark portion here 14 shows the percentage of Mokelumne River stock that is 15 actually used in the brood, and then these were sources 16 outside the Mokelumne. Prior to '93, remember the last 17 hearings were in '92, this was essentially zero for many 18 years. 19 So there has been a move to start using the native 20 brood. The non-native brood gets used primarily in fish 21 that are used in the Bay-Delta and wouldn't be expected to 22 return to the Mokelumne. These specifically get used for 23 fish planted in the Mokelumne to produce returns to the 24 Mokelumne. So natural spawning over time can genetically 25 adapt. CAPITOL REPORTERS (916) 923-5447 2982 1 The other thing that is also important here, this 2 graph doesn't really show it, but the returns of fish to 3 the Mokelumne River are largely doing better because 4 hatchery fish have now been released within the Mokelumne 5 River in greater number, so that they return to the 6 Mokelumne River. 7 And as I highlight in this testimony calling back 8 to '92, what we identified there was if you release them in 9 the Bay, or you release them in the Sacramento that less 10 than two percent of the fish that return to the Central 11 Valley ever find their way back to the Mokelumne. They 12 show up every where else. So they had released them in the 13 Mokelumne. So the spot trend you're seeing there is 14 heavily influenced by fish management practices today, 15 those have been corrected so that we are releasing fish in 16 the Mokelumne and we are repleting the Mokelumne stock so 17 that they can adapt. 18 Okay. Just one of the other fish management 19 practices that has not changed much, these are harvest 20 rates in the ocean. And quick, Figure 5 from my testimony, 21 throughout the '80s -- and we had a slight lip here, we're 22 looking at harvest rates in the neighborhood of 75 percent 23 of all fish in the ocean are being caught. So only 25 24 percent remained to escape to the river. That dropped a 25 little bit in '96 and '97. 65-percent harvest rate, means CAPITOL REPORTERS (916) 923-5447 2983 1 35 percent were able to return. So the trends were not 2 explained by changes in ocean harvest rate, they remained 3 very high. 4 Now, what you see in the next couple graphs, I 5 attempted to compare how are the returns in the Mokelumne 6 going in recent years compared to -- compared to the other 7 tributaries of the San Joaquin? And this is Figure 6 and 8 Figure 7 from my testimony. First, we compare the 9 Mokelumne to the Stanislaus. What you can see -- and then 10 the last one will be the Merced. But in all of them, 11 here's the point: 12 If you started in about 1990 and look backward, 13 the majority of all years for every one of those different 14 tribs shows that the white bars are the Mokelumne, the dark 15 bars in this case are the Stanislaus. We follow that same 16 pattern, the dark bars down here are the Tuolumne. The 17 light bars are always the Mokelumne. As you look in the 18 past, the dark bars were typically higher than the light 19 bars, at least more than 50 percent. Now, its variable 20 between years, it's high variable. 21 But it becomes quite different as you move into 22 the present. In recent years, the Mokelumne is higher in 23 every year since 1990. And only one of these tributaries 24 was an exception with one year. So if you flash the next 25 one you'll see that. CAPITOL REPORTERS (916) 923-5447 2984 1 C.O. CAFFREY: Mr. Cramer, you have three minutes 2 left for your direct. 3 MR. CRAMER: Good, we're at the end. And so here you 4 see the same thing with the Merced. There's the one year 5 the Merced did exceed. But Merced now has a hatchery, so 6 does the Mokelumne. The key point here is that the fish 7 are doing well in coming back to the Mokelumne when managed 8 properly. The flows we have now are enabling them to 9 survive and reproduce. Many of the problems that we had in 10 the past are being corrected. 11 So what I can say is given the simulation results 12 that you see from East Bay MUD, indicators are we have a 13 situation that can support the fish. We're doing well. If 14 you change the situation, you would increase the frequency 15 with which you would find problems and you would find 16 mortality that would reduce natural production. That 17 concludes my testimony. 18 MR. GALLERY: That concludes Woodbridge's testimony, 19 Mr. Chairman. We're ready for cross-examination. 20 C.O. CAFFREY: Thank you very much, Mr. Gallery. By 21 showing of hands, do any parties wish to cross-examine this 22 panel of witnesses? Let's see, Mr. Garner, is it? 23 MR. GARNER: Yes. 24 C.O. CAFFREY: Mr. Garner and Mr. Godwin? 25 MR. GODWIN: Yes. CAPITOL REPORTERS (916) 923-5447 2985 1 C.O. CAFFREY: Mr. Gardener and Mr. Godwin and 2 Mr. Brandt, Mr. Birmingham, Mr. Etheridge, Mr. Jackson. 3 MEMBER DEL PIERO: Boy, you guys are popular. 4 MR. NOMELLINI: You might as well include me, 5 Mr. Chairman. 6 MEMBER DEL PIERO: It's a party. 7 C.O. CAFFREY: Let me ask one question here just for 8 the benefit of the North San Joaquin folks, do any of you 9 anticipate lengthy cross-examination, or do you just have a 10 couple questions or what -- that's kind of a scattered 11 question. 12 You were going to answer, Mr. Birmingham? 13 MR. BIRMINGHAM: Given the number of people that have 14 cross-examination, I would suspect that it's going to go 15 over until tomorrow. I wonder if North San Joaquin could 16 present its witness now, because I don't believe that 17 there's much cross-examination for them. 18 C.O. CAFFREY: I appreciate that suggestion. That 19 may be a good way to go. Are there -- how do the 20 parties -- let me ask it this way: 21 Do any of the parties have any cross-examination 22 based on the evidentiary exhibits, anyway, for the North 23 San Joaquin case in chief? 24 MR. ETHERIDGE: Just a few questions. 25 C.O. CAFFREY: Just a few, Mr. Etheridge. If there's CAPITOL REPORTERS (916) 923-5447 2986 1 no objection, let's take North San Joaquin out of order. 2 Is that all right? 3 C.O. STUBCHAER: Is that going to inconvenience any 4 of the panel? 5 C.O. CAFFREY: That's a good question. 6 Mr. Stubchaer wants to know if this inconveniences any of 7 you? I'm presuming that -- 8 MR. CRAMER: I'm travelling from Portland. So I 9 expect to get a flight back tonight. That could change if 10 need be. 11 C.O. CAFFREY: We assume that to be Portland, Oregon, 12 not Portland, Maine? 13 MR. CRAMER: Right. 14 C.O. CAFFREY: We're very precise here, sometimes. 15 Mr. Sorensen, do you have an estimate of how much 16 time your direct testimony is going to take you? You have 17 one witness; is that correct, sir? 18 MR. SORENSEN: No more than 15 or 20 minutes. 19 C.O. CAFFREY: All right. Please, come forward and 20 we'll accommodate you now. 21 MR. SORENSON: Thank you, Mr. Chairman. I appreciate 22 the switch here. 23 // 24 // 25 // CAPITOL REPORTERS (916) 923-5447 2987 1 ---oOo--- 2 DIRECT TESTIMONY OF NORTH SAN JOAQUIN 3 WATER CONSERVATION DISTRICT 4 BY JAMES F. SORENSEN 5 MR. SORENSEN: I'm James F. Sorensen. I'm appearing 6 for North San Joaquin Conservation District. And I've 7 submitted two exhibits both of which I've prepared. 8 C.O. CAFFREY: I'm sorry to interrupt you already, 9 Mr. Sorensen, but I presume you took the oath already, 10 earlier? 11 MR. SORENSON: Yes, I did. 12 C.O. CAFFREY: Thank you, sir. 13 MR. SORENSEN: North San Joaquin Exhibit 1 is a 14 statement of my qualifications which I've prepared. And 15 North San Joaquin Exhibit 2 is the testimony which I 16 prepared in which I will be summarizing. 17 First off I would note, just one comment on 18 Exhibit 1, I think I've been involved with North San 19 Joaquin for 40 to 45, and I'll say, "frustrating" years. 20 And I think my testimony will indicate some of my 21 frustration. 22 To summarize my exhibit, North San Joaquin was 23 formed about 15 years ago in 1948 to try to solve the 24 overdraft which was very obvious even at that particular 25 time. The District has 57,000 plus acres and includes the CAPITOL REPORTERS (916) 923-5447 2988 1 City of Lodi, which now has about 58,000 people. Most of 2 the lands were developed -- or development commenced a 3 hundred years ago. And the lands, certainly, since the 4 middle '50s, at the very at least, have been practically 5 fully developed. And there is a map in my exhibit that 6 shows by the dark color the practically development, and 7 that's plate two. 8 The District soon after it was formed filed an 9 application for Mokelumne River water. And the result of 10 that application and hearing, which was held was in 11 Decision 8-58. And in that decision, East Bay Municipal 12 Utility District got the nod. And North San Joaquin was 13 given the right to take surplus water through the 14 requirements of surplus to those of East Bay MUD. 15 The East Bay water, of course, goes some 90 miles 16 to an export area. And what I would note that in that 17 decision, which really was as it turned out as a disaster 18 for North San Joaquin, was based I think on fairly good 19 premise that Folsom South canal would be built. And, in 20 fact, there is reference to that in the decision. And, of 21 course, we all know that Folsom South has never been 22 completed and there's been no water into San Joaquin County 23 at all. 24 I should note that following Decision 8-58 -- 25 which also included on the part of a predecessor of the CAPITOL REPORTERS (916) 923-5447 2989 1 Board, a recommendation for the direction that American 2 River water through Folsom South would be the way to go. 3 And the District filed an application for American River 4 water, which was denied in favor of the Bureau of 5 Reclamation. 6 But the Bureau was told to contract with the 7 entities. And I would note that one of the more 8 frustrating things is that North San Joaquin approved 12 9 drafts of water service contracts for Folsom South water, 10 which were submitted by the Bureau of Reclamation. And, of 11 course, the Bureau never executed them. And the Bureau 12 never did build a canal. So the net result is North San 13 Joaquin is an orphan. And we're too far south for the 14 existing Folsom South. And we're too far north for the New 15 Melones, or the Calaveras, either one. So it seems to 16 North San Joaquin that the premise for the decision that 17 gave the water to East Bay was, essentially, faulty as it 18 has turned out. 19 At the time, it probably looked -- I shouldn't 20 say, "probably," it looked like the way to go. But the net 21 result has been, as I say, practically a disaster for North 22 San Joaquin. Now, the District has -- on the basis even of 23 that surplus water supply, spent over a million dollars in 24 Board facility to pump out of the Mokelumne River. But the 25 lack of dependability has made it almost impossible to keep CAPITOL REPORTERS (916) 923-5447 2990 1 any degree of consistency of diversion. What with 2 variations in the river flows, and as was noted yesterday, 3 there are many years in the 75-year record that North San 4 Joaquin has had no water whatsoever. 5 The District -- and I should say its landowners, 6 mainly, have taken many conservation efforts, laser 7 grading, return flow systems, sprinklers, misters and the 8 like to that, but it's very hard to get people to agree to 9 take water when they don't know whether they're going to 10 get it year-to-year. And they have to take -- pump 11 contracts for power and you have to put in new pumps from 12 time to time, so that it becomes a very difficult situation 13 as to getting people to take water. 14 Now, the ground -- as I said the groundwater 15 charts clear back in the early '50s showed a very bad 16 situation. And I'll just refer -- and I think I can speak 17 loud enough. And I just -- this is plate three out of 18 Exhibit 2. And what it is is a series of cross-sections 19 north and south profiles. And what I've depicted on here 20 are the drops, the fall of water levels in this period. 21 And you'll see that they range from, I think, 67 feet is 22 the least drop and 103 is the greater one. 23 And I'll not go into the individual depictions, 24 but that color effect gives the drops. And you can see 25 that they're substantial. Also, I would note on CAPITOL REPORTERS (916) 923-5447 2991 1 groundwater, that the east San Joaquin basin has been 2 described as critically overdrawn by the Department of 3 Water Resources in two versions of Bulletin 118. 4 And, certainly, the situation is not any better 5 when the -- in the recent years. Then I have a map in the 6 plate that shows that the water levels in San Joaquin 7 County, tremendous areas -- I'll get the plate number, 8 plate four are below sea level. And by observation you can 9 see that the North San Joaquin District, which is in 10 roughly the north third of the shaded area, has most of its 11 area below sea level. And this fits with the charts that 12 Mr. Hanson had previously. 13 It, then, comes around to the matter of 14 curtailment, I want to mention that, from the EIR. It's 15 pretty hard to get blood out of a turnip. And how they can 16 be anticipated that any more water can be taken from North 17 San Joaquin given the present situation. But, also, it 18 seems to me that the EIR missed the groundwater concerns in 19 the eastern San Joaquin County. 20 I wasn't able to find anything that indicated much 21 of any attention, or consider, or any interest. Now, 22 obviously, under the water rights such as it is that the 23 District has, as East Bay increases its use, or increases 24 its deliveries or releases down the river, North San 25 Joaquin has less dependable supplies, more undependability CAPITOL REPORTERS (916) 923-5447 2992 1 if you want to look at it that way. 2 Now, it appears to North San Joaquin that East Bay 3 has volunteered to give up some Mokelumne River water for 4 fish. And in the street vernacular, East Bay takes the 5 credit for the fish release and North San Joaquin pays the 6 bill. And no matter how you consider it, some water is 7 going to go down the river that might have been available 8 to North San Joaquin. 9 Now, it would seem to North San Joaquin that East 10 Bay should take more direct responsibility and reduce its 11 exports to make up for fish releases. It also seems that 12 they have some capability with American River water to make 13 up any deficiencies and they're probably going to have to 14 do that anyway. 15 Now, if something doesn't happen, if this State 16 Board, basically, doesn't remedy this situation, change the 17 situation that exists, then this denial of water, there's 18 going to be mass bankruptcy as the water table goes down. 19 This is just a situation that is only going to be cured by 20 people not taking any water and walking away, or finding 21 some kind of a supply of water that is feasible and 22 practical to use. 23 Just as an indication of what happens with the 24 undependability, the District is in no position to finance 25 the facility, because we don't have a dependable water CAPITOL REPORTERS (916) 923-5447 2993 1 supply. Any sort of a borrower, or lender, or bond buyer 2 is going to say, "Well, what do you have behind this?" 3 Well, without a water supply we're in no position to seek 4 funding for a distribution system. 5 It seems to North San Joaquin that East Bay, 6 certainly, has some capability to use American River water 7 to offset the water that they're volunteering for the fish 8 release. But beyond that, it seems to us that this State 9 Board has a responsibility to that area to do -- to take 10 some action to offset this situation. Now, you heard 11 Mr. Weybert yesterday mention Owens Valley, and I'll not 12 dwell on that, but it's much of the same situation where 13 the water runs right through the middle of the District and 14 the District can't touch it. 15 Mr. Chairman, that completes my summary. 16 C.O. CAFFREY: All right. Thank you very much, 17 Mr. Sorensen, appreciate that. And we will ask if any of 18 the parties -- I have Mr. Etheridge as a cross-examiner. 19 Are there others that wish to cross-examine Mr. Sorensen? 20 None responding. 21 Mr. Etheridge, please, come forward. 22 // 23 // 24 // 25 // CAPITOL REPORTERS (916) 923-5447 2994 1 ---oOo--- 2 CROSS-EXAMINATION OF NORTH SAN JOAQUIN 3 WATER CONSERVATION DISTRICT 4 BY EAST BAY MUNICIPAL UTILITY DISTRICT 5 BY FRED ETHERIDGE 6 MR. ETHERIDGE: Good afternoon, Mr. Sorensen. I just 7 want to see if I understand your concerns correctly. Is it 8 correct that you are concerned that EBMUD's settlement 9 flows, which are those flows that are proposed by the State 10 Board in this proceeding, are too high, that they release 11 too much water down the Mokelumne River for fishery 12 purposes, and that that is water that could have been 13 available for appropriation by North San Joaquin? 14 MR. SORENSON: Let me separate my answer into two 15 parts. One, I'm not saying that it's too much or too 16 little as far as fish requirements are concerned. What I'm 17 saying is that any water that is released above those flows 18 that would have existed otherwise in many months are -- 19 represent a loss of water that North San Joaquin might have 20 been able to have diverted. 21 MR. ETHERIDGE: Okay. Between the 1961 Agreement 22 between East Bay MUD and the California Department of Fish 23 and Game, which sets the existing fishery release on the 24 Mokelumne, and EBMUD's settlement flows, which of those two 25 would provide North San Joaquin with more water? CAPITOL REPORTERS (916) 923-5447 2995 1 MR. SORENSON: The second one is the JSA? 2 MR. ETHERIDGE: Right. 3 MR. SORENSON: Well, the '61 tabulation, as we noted 4 yesterday in those two computer-generated sheets provided 5 water in more years in greater quantities than does the 6 JSA. 7 MR. ETHERIDGE: Okay. And have you examined the 8 State Board's proposed flow alternative number five, the 9 watershed alternative? 10 MR. SORENSON: Not in great detail such that I would 11 have much knowledge of it. 12 MR. ETHERIDGE: Okay. Do you know whether that would 13 have a greater impact on North San Joaquin Water 14 Conservation District's water supply than East Bay MUD's 15 proposed settlement flows? 16 MR. SORENSON: No. I don't know. 17 MR. ETHERIDGE: Okay. Well, that concludes my 18 questions. Thank you, Mr. Caffrey. 19 C.O. CAFFREY: Thank you, Mr. Etheridge. Are there 20 questions from the staff for Mr. Sorensen? 21 MR. HOWARD: No questions. 22 C.O. CAFFREY: Thank you, Mr. Howard. Questions from 23 the Board? Mr. Brown has a question. 24 // 25 // CAPITOL REPORTERS (916) 923-5447 2996 1 ---oOo--- 2 CROSS-EXAMINATION OF NORTH SAN JOAQUIN 3 WATER CONSERVATION DISTRICT 4 BY BOARD MEMBERS 5 MEMBER BROWN: I think the question may be more of 6 our staff than Mr. Sorensen, but either one. The position 7 that North San Joaquin seems to have according to 8 Mr. Sorensen, is the statement that he made that East Bay 9 MUD supplies the water, but the North San Joaquin Water 10 Conservation District pays the bill? 11 Is this water coming out of water that this 12 District needs and at least has some kind of a history to 13 use it? Is there a comment that -- or can you expand upon 14 that, Mr. Sorensen? 15 C.O. CAFFREY: Well, I think if you'll bear with me, 16 Mr. Brown, I think the question is best directed to the 17 witness who made the statement. 18 MEMBER BROWN: Yes. That's why I changed my mind, 19 Mr. Chairman. 20 C.O. CAFFREY: Thank you, Mr. Brown. Mr. Sorensen, 21 can you explain yourself in that statement, sir? 22 MR. SORENSON: Mr. Brown, could you summarize that 23 for me? 24 MEMBER BROWN: Tell me again how East Bay MUD 25 supplies the water and North San Joaquin Water Conservation CAPITOL REPORTERS (916) 923-5447 2997 1 District pays the bill? 2 MR. SORENSON: The water in the JSA is water that 3 East Bay agrees to let go down the river. And that water, 4 then, is going to pass Woodbridge. And is, therefore, 5 unavailable. I mean that's not water that can be diverted 6 since it was delivered at Camanche for a fish purpose, fish 7 release. And so North San Joaquin can't draw on that 8 amount of water. 9 MEMBER BROWN: What's the agreement that North San 10 Joaquin has with East Bay MUD? Is it that you take just 11 surplus water when it's available, let's say in half a 12 dozen words or less? 13 MR. SORENSON: I don't know about that. The water 14 rights decision says that the District can divert water 15 that's surplus to that of East Bay. And it's for the 16 period -- well, I must say I don't remember the specific 17 period now. But that's according to the water right, the 18 decision. And the District is -- does have the capability 19 to take water at sometime, because of an agreement with 20 East Bay that was entered into in the '60s to store some 21 water at -- in East Bay facilities. 22 And that agreement, just to make a quick note 23 about it, was set such that it was to be usable until 24 Folsom South was built, or until something else happened. 25 Well, of course, that hasn't come about. But the District, CAPITOL REPORTERS (916) 923-5447 2998 1 by the permit, can only take surplus water. 2 MEMBER BROWN: Thank you, Mr. Sorensen. 3 C.O. CAFFREY: Thank you. Mr. Brown. Are there 4 questions from the other Board Members, or Mr. Pettit? All 5 right. 6 Mr. Sorensen, do you wish to offer any redirect? 7 MR. SORENSON: No. Thank you, Mr. Chairman. The 8 answer is, no. 9 C.O. CAFFREY: All right. Thank you, sir. Would you 10 like to offer your exhibits now into evidence? 11 MR. SORENSON: Yes. I ask -- I ask that San Joaquin 12 Exhibits 1 and 2 be admitted into evidence. 13 C.O. CAFFREY: Thank you, sir. I presume with the 14 staff those numbers synchronize with our records? 15 MS. WHITNEY: I'm sorry, I didn't hear you. 16 C.O. CAFFREY: North San Joaquin Exhibits 1 and 2. 17 MS. WHITNEY: Yes. 18 C.O. CAFFREY: They do. Any objections from any 19 parties to receiving these exhibits into evidence? No 20 objection. Your exhibits are accepted into the record, 21 Mr. Sorensen. Thank you, sir. 22 MR. SORENSON: Thank you for facilitating my 23 departure. And I want to thank the others for the same 24 reason. 25 C.O. CAFFREY: You're very welcome, sir. And now we CAPITOL REPORTERS (916) 923-5447 2999 1 will go back to the Woodbridge cross-examination of that 2 panel. And we were going to start with Mr. Garner. 3 MR. GARNER: Chairman Caffrey, my questions are for 4 Mr. Hanson, not to Mr. Cramer. If there's others that have 5 questions of Mr. Cramer, to get him done and out of here 6 today, I'm willing to wait my cross-examination until 7 tomorrow. 8 C.O. CAFFREY: I'm sorry. I didn't hear all of that. 9 MR. GARNER: My questions are for Mr. Hanson not for 10 Mr. Cramer. And if others have questions for Mr. Cramer 11 and we're able to facilitate his return to Oregon tonight, 12 I could certainly wait and do my cross-examination 13 tomorrow. 14 C.O. CAFFREY: Thank you, sir. Mr. Cramer, I might 15 have misunderstood you earlier, were you attempting to get 16 back to Oregon tonight? 17 MR. CRAMER: That is true. 18 C.O. CAFFREY: I'm sorry. 19 MR. CRAMER: I intend to go back tonight, if I can. 20 C.O. CAFFREY: Okay. Let's see, Mr. Godwin, do you 21 have questions of Mr. Cramer? 22 MR. GODWIN: Yes, I do. 23 C.O. CAFFREY: All right. Please, come forward. 24 Thank you, again, Mr. Garner. 25 // CAPITOL REPORTERS (916) 923-5447 3000 1 ---oOo--- 2 CROSS-EXAMINATION OF WOODBRIDGE IRRIGATION DISTRICT 3 BY TURLOCK IRRIGATION DISTRICT, et al. 4 BY ARTHUR F. GODWIN 5 MR. GODWIN: Arthur Godwin for Turlock Irrigation 6 District and the San Joaquin River Group Authority. 7 Mr. Cramer, are you familiar with the fishery 8 resources of the other San Joaquin River tributaries, 9 specifically, the Stanislaus, Tuolumne and Merced River? 10 MR. CRAMER: Yes, I am familiar especially with the 11 Stanislaus and to a lesser degree to the Tuolumne and 12 Merced. I participate with the San Joaquin Tributaries 13 Association's biologists. 14 MR. GODWIN: Okay. Earlier today in Dr.Hanson's 15 cross-examination by Mr. Nomellini he had made some 16 statements that -- concerning conditions on the Mokelumne 17 River with respect to steelhead. Do you recall that? 18 MR. CRAMER: Yes. 19 MR. GODWIN: He had some concerns regarding 20 temperature, I believe. 21 MR. CRAMER: Generally, he was asked if steelhead 22 would have requirements on other San Joaquin tributaries 23 similar to what he would expect on the Mokelumne. 24 MR. GODWIN: Right. That's what I was going to ask 25 you next, if you concurred with his sentiments regarding CAPITOL REPORTERS (916) 923-5447 3001 1 conditions on the other tributaries with respect to the 2 steelhead? 3 MR. CRAMER: In the other San Joaquin tributaries, to 4 my knowledge, there does not exist any naturally 5 reproducing steelhead population. Therefore, their need 6 would not exist. There are from time to time juvenile 7 steelhead that do turn up in the Stanislaus River. We 8 believe that those are the prodigy of stray hatchery fish 9 from the Mokelumne. 10 MR. GODWIN: Okay. Your Figure 2 from your 11 exhibits -- if I could see that on the overhead, again. 12 Now, you had testified about the returns on the Mokelumne 13 River increasing since 1992? 14 MR. CRAMER: Yes, I did. 15 MR. GODWIN: Okay. Now, do you know when the East 16 Bay MUD started to voluntarily increase its flows pursuant 17 to the settlement agreement? 18 MR. CRAMER: I do not. 19 MR. GODWIN: Okay. So is that increase -- do you 20 know if that increase is a result of increase flows on the 21 river, or improved hatchery management? 22 MR. CRAMER: A previous table that I presented showed 23 flows. We had moved into a very much healthy flow 24 sequence. We've had higher flows in most of those years 25 since '92. So flows, certainly, could have played a role. CAPITOL REPORTERS (916) 923-5447 3002 1 Also, the hatchery practices, as I testified, changed and 2 those were more favorable to returning fish in the 3 Mokelumne as well as. 4 MR. GODWIN: Okay. One more question: Is Woodbridge 5 Irrigation District participating in the Lower Mokelumne 6 River Management Plan? 7 MR. CRAMER: Yes, they are. 8 MR. GODWIN: Okay. And how are they participating? 9 MR. CRAMER: I need to get my terminology square. I 10 say, "Yes, they are." And I want to make sure -- that 11 probably would be a better question addressed to probably 12 Andy Christensen, the manager. 13 MR. GODWIN: Okay. Sorry. 14 MR. CHRISTENSEN: Thank you. I guess I would like 15 you to spell out the acronym you just used. There's a 16 number of plans that are similar to that. 17 MR. GODWIN: Okay. I don't have the testimony in 18 front of me right now, but in Mr. Cramer's testimony he 19 testified that there was a 13.5-million-dollar Lower 20 Mokelumne River Management Plan. 21 MR. CHRISTENSEN: Yes, I believe that was in my 22 testimony. And the correct term is the Lower Mokelumne 23 River Restoration Plan. And we are a participant in that. 24 We're one of the two sponsors of that program. We also 25 have other interested parties that are -- that are a part CAPITOL REPORTERS (916) 923-5447 3003 1 of the planning effort in the guidance of that project. 2 MR. GODWIN: Okay. And what is the source of the 3 funds for that plan? 4 MR. CHRISTENSEN: These are CalFed Category III 5 funds. 6 MR. GODWIN: Okay. Totally? 7 MR. CHRISTENSEN: The total project is 13 and a half 8 million, of which we have an authorization for 1.75 9 million. 10 MR. GODWIN: Okay. Thank you. 11 C.O. CAFFREY: All right. Thank you, Mr. Godwin. I 12 think what we probably should do to get Mr. Cramer out of 13 here is just if you have questions of him, specifically, 14 ask those. And then we'll let you come back for the rest 15 of the panel, because you may have questions of the others. 16 So unless you just have one extra question or something 17 like that. 18 Mr. Brandt, did you have questions of Mr. Cramer? 19 ---oOo--- 20 CROSS-EXAMINATION OF WOODBRIDGE IRRIGATION DISTRICT 21 BY THE DEPARTMENT OF THE INTERIOR 22 BY ALF BRANDT 23 MR. BRANDT: I have just one. You mentioned just a 24 few minutes ago that the Stanislaus -- the steelhead that 25 show up in the Stanislaus are strays. What evidence do you CAPITOL REPORTERS (916) 923-5447 3004 1 have to show that they're strays? 2 MR. CRAMER: I said that we believe that they are 3 strays. And the evidence comes, primarily from the lack of 4 any observations of the adults over a period of many years. 5 Additionally, I have thoroughly searched the records to 6 find any observation of adult steelhead runs in the 7 Stanislaus, historically. 8 Cal Fish and Game has given a number of statements 9 in the past that there were none observed. Accounts going 10 back to the early 1900's say there were no steelhead in the 11 Stanislaus. So given they didn't use to exist and that 12 there are occasional juveniles seen there and that there is 13 a very intensive hatchery in the Mokelumne which releases 14 its fish off station, we would have to figure that those 15 yearlings are produced by that off-station strategy used on 16 the Mokelumne. 17 As another example, in Oregon studies are done 18 through the state on the percentage of that hatchery fish 19 composed of wild run. The Alcy (phonetic) hatchery in the 20 central coast run accounts for most of the escapement in 21 many of the streams throughout the entire state. Mokelumne 22 is only one step down from the Stanislaus in terms of its 23 sequence down the San Joaquin; and it has that unique 24 practice of releasing most of the fish off station which 25 would encourage straying. CAPITOL REPORTERS (916) 923-5447 3005 1 C.O. CAFFREY: All right. Thank you, Mr. Brandt. 2 Mr. Birmingham, did you have questions of 3 Mr. Cramer? 4 ---oOo--- 5 CROSS-EXAMINATION OF WOODBRIDGE IRRIGATION DISTRICT 6 BY WESTLANDS WATER DISTRICT, et al. 7 BY THOMAS W. BIRMINGHAM 8 MR. BIRMINGHAM: Mr. Cramer, my name is Tom 9 Birmingham. I an attorney that represents Westlands Water 10 District and San Luis/Delta Mendota Water Authority in 11 connection with these proceedings. 12 During your testimony you stated that you relied 13 on simulations performed using the East Bay MUD simulation 14 model; is that correct? 15 MR. CRAMER: Yes, that's correct. 16 MR. BIRMINGHAM: And I believe you testified that in 17 your opinion those simulations are accurate? 18 MR. CRAMER: Yes. I testified that those are a 19 useful tool in our accuracy, meaning that they are as a 20 dependable tool as we could expect to get. 21 MR. BIRMINGHAM: Now, are you aware that in the 22 preparation of the inputs for East Bay MUD SIM that East 23 Bay MUD replaced hydrology from 1978 with a synthetic 24 hydrology? 25 MR. CRAMER: I am aware of that. CAPITOL REPORTERS (916) 923-5447 3006 1 MR. BIRMINGHAM: And you referred during your 2 testimony to the analysis that was prepared by Dr. Hanson; 3 is that correct? 4 MR. CRAMER: I did. 5 MR. BIRMINGHAM: And you said that you thought that 6 that analysis was accurate? 7 MR. CRAMER: That's right. 8 MR. BIRMINGHAM: I'd like to show you Exhibit A taken 9 from page 26 of East Bay MUD Exhibit Number 6 and ask you 10 if you've seen this previously? 11 MR. CRAMER: I can compare it to the one that I used, 12 but it appears to be the same that I have in the draft of 13 Dr. Hanson's testimony. 14 MR. BIRMINGHAM: Do you have a copy of that with you? 15 MR. CRAMER: I do. 16 MR. BIRMINGHAM: It might facilitate my questions if 17 you could rely on your copy. 18 MR. CRAMER: Okay. 19 MR. BIRMINGHAM: Exhibit A, page 26 from East Bay MUD 20 Exhibit Number 6. 21 MR. CRAMER: I have -- one thing we'll need to check, 22 I had a draft copy and mine page 27 is Exhibit A. They're 23 probably the same, but I can't be sure. 24 MR. BIRMINGHAM: Would you compare the two and make 25 sure they're the same, please? CAPITOL REPORTERS (916) 923-5447 3007 1 MR. CRAMER: They are the same. 2 MR. BIRMINGHAM: Thank you. Now, are you aware that 3 when Dr. Hanson testified concerning Exhibit A he testified 4 that if actual hydrology were used for 1978, as opposed to 5 synthetic hydrology, that the black bar shown in each 6 column on Exhibit A for 1978 would probably disappear? 7 MR. CRAMER: Yes, I'm well-aware of that. 8 MR. BIRMINGHAM: Okay. And he indicated during his 9 testimony that if the actual hydrology were used for 1978 10 that the black bar in the columns for water right priority 11 alternative three, alternative four and the watershed 12 allocation alternative for 1979 may disappear? 13 MR. CRAMER: Yes. Let me offer a comment, what I 14 said in my testimony was that we relied -- I rely upon the 15 frequency with which events might occur. And I believe 16 that he sequenced those intentionally to show what a 17 drought sequence would do. 18 I was not drawing my conclusions based on analysis 19 of drought sequences, I was looking at the frequency of 20 with which you could reoccur, what would you call it, 21 problematic water temperatures through the fall. 22 MR. BIRMINGHAM: Okay. But you will acknowledge that 23 if actual hydrology were used in the East Bay MUD 24 simulation for 1978, the water temperatures -- the 25 frequency of water temperature depicted on Exhibit A from CAPITOL REPORTERS (916) 923-5447 3008 1 East Bay MUD Exhibit 10 would change? 2 MR. CRAMER: Yeah, that would drop one year of 3 occurrence. 4 MR. BIRMINGHAM: In fact, it may be two years of 5 occurrence; isn't that correct? 6 MR. CRAMER: I'm not sure that's correct, but it 7 sounds like it possibly would be correct. 8 MR. BIRMINGHAM: Now, in your testimony you said that 9 the juvenile year -- the hydrology for juvenile year 1979 10 was comparable to the juvenile year for 1993; is that 11 correct? 12 MR. CRAMER: Correct. 13 MR. BIRMINGHAM: Is it correct -- 14 MR. CRAMER: Let me -- I need to make -- the 15 hydrology for the juvenile year of '89 was comparable to 16 the juvenile year of '94. I think you said '93. 17 MR. BIRMINGHAM: Well, could we look at table one, 18 please, from your Exhibit Woodbridge 4? I believe that you 19 indicated that, generally, juvenile salmon are 20 out-migrating in March, April and May. Is that correct? 21 MR. CRAMER: That is correct. 22 MR. BIRMINGHAM: And in 1989 the flows in -- the 23 water year 1989, the flows in March were 111 csf? 24 MR. CRAMER: No, 174. See -- excuse me, '88 through 25 December/January '89, there's '89. CAPITOL REPORTERS (916) 923-5447 3009 1 MR. BIRMINGHAM: That may be the source of my 2 confusion. Now, this table depicts water years; is that 3 correct? This table being table one of Woodbridge -- 4 MR. CRAMER: Right. This is '85 over here and then 5 you move into '86 right here. Am I off one year? I'm 6 sorry, if I'm off -- if I'm the guy that's off one year, 7 the comparison is the same, but we have to charge it to the 8 different years. 9 MR. BIRMINGHAM: Well, could you, please, compare 10 table one with the dates that are depicted with Figure 2, 11 both of which are in Woodbridge Exhibit 4? 12 MR. CRAMER: That would be mine, Exhibit 4? 13 MR. BIRMINGHAM: Yes, it's your testimony. Now, you 14 compared the juvenile year 1989 with juvenile year 1994; is 15 that correct? 16 MR. CRAMER: Okay. Let me tell you what it should be 17 and then we can, perhaps, get to the bottom of your 18 question. If this is, indeed -- okay, this would be '88 as 19 I showed here. And I was using '93 here. The juvenile 20 out-migration year would be two years later that you'd see 21 the adult return. 22 So if it's -- if this is '93 out-migration year, 23 it would be in '95 would be the primary returns. You'd 24 have some additional ones in '96. So in each case 25 whichever those are, you add two years to be the primary CAPITOL REPORTERS (916) 923-5447 3010 1 year for your return and some also return at age four and 2 come back the following year. 3 MR. BIRMINGHAM: Now, isn't it correct that -- 4 MR. CRAMER: So all those years are stair-stepping 5 up. And if I moved it over one, I do apologize, that was 6 an error on my part. The comparison still tells the same 7 story. 8 MR. BIRMINGHAM: Mr. Cramer, isn't it correct that 9 table one would relate to the out-migration of juvenile 10 salmon? 11 MR. CRAMER: Table one is flows. 12 MR. BIRMINGHAM: And you included that for purposes 13 of describing conditions that affect the out-migration of 14 juvenile salmon? 15 MR. CRAMER: I used it for that purpose here. My 16 oral testimony, actually, in the written testimony it is 17 introduced to indicate that in recent years they have 18 exceeded the 325 csf throughout the period that's discussed 19 in the joint stipulation agreement. 20 MR. BIRMINGHAM: And Figure 2 pertains to return, or 21 the escapement of salmon; is that correct? 22 MR. CRAMER: Figure 2 indicates the temperatures, the 23 days -- the -- figure, not table? 24 MR. BIRMINGHAM: I'm looking at Figure 2. 25 MR. CRAMER: Yes, Figure 2 is number of salmon CAPITOL REPORTERS (916) 923-5447 3011 1 returning. 2 MR. BIRMINGHAM: Now, isn't it correct that there are 3 many factors that influence the number of salmon that 4 escape from the ocean? 5 MR. CRAMER: There certainly are. 6 MR. BIRMINGHAM: And so are you suggesting that there 7 are data from which you can conclude that -- let me restate 8 the question. 9 Isn't it correct that you are unable to draw any 10 definite conclusion with respect to the relationship of 11 flows for out-migration for the juvenile year 1993 or '94 12 and a return of salmon to the Mokelumne River? 13 MR. CRAMER: That's accurate. 14 MR. BIRMINGHAM: I have no further questions. 15 C.O. CAFFREY: All right. Thank you, Mr. Birmingham. 16 Mr. Etheridge, what time estimate do you have -- or do you 17 have questions of Mr. -- 18 MR. ETHERIDGE: Mr. Caffrey, I have no questions of 19 Mr. Cramer. 20 C.O. CAFFREY: That solves that. Thank you. Sorry 21 about the mic being off. 22 Mr. Jackson, do you have questions of Mr. -- 23 MR. JACKSON: Yes, sir, I do. 24 C.O. CAFFREY: Do you know how many, how long? 25 MR. JACKSON: Depends on the answers, but certainly CAPITOL REPORTERS (916) 923-5447 3012 1 more than 20 minutes. 2 C.O. CAFFREY: More than 20 minutes. 3 Mr. Nomellini? 4 MR. NOMELLINI: I'm going to withdraw my request for 5 cross-examination. 6 C.O. CAFFREY: Thank you, sir. Staff do you have 7 questions? 8 MR. HOWARD: None. 9 C.O. CAFFREY: Board Members? All right. We're 10 trying to get Mr. Cramer out of here. I have to apologize 11 to you, Mr. Cramer, because I let Mr. Sorensen go ahead of 12 you, because I misunderstood and thought that you did not 13 have to get back tonight. So if we reach the point where I 14 just can't stand it anymore, I'll add about 15 minutes 15 because that's about how long it took Mr. Sorensen. 16 Let's go with Mr. Jackson and see if we can move 17 with dispatch. 18 MR. JACKSON: I'll try to move as fast as I can, sir. 19 C.O. CAFFREY: Well, it's also in the control of the 20 witness. 21 ---oOo--- 22 CROSS-EXAMINATION OF WOODBRIDGE IRRIGATION DISTRICT 23 BY REGIONAL COUNCIL OF RURAL COUNTIES 24 BY MICHAEL B. JACKSON 25 MR. JACKSON: Could I have Figure 2 put up? Thank CAPITOL REPORTERS (916) 923-5447 3013 1 you. 2 C.O. CAFFREY: Mr. Jackson, I wanted it on the record 3 that we're not rushing you. You have the right to ask 4 relevant questions. And we're not holding you to the 20 5 minutes. We're going to stay here and get Mr. Cramer out 6 of here. 7 MR. JACKSON: Yes, sir. Thank you, sir. 8 Mr. Cramer, calling your attention to your 9 testimony on page 17 your summary and conclusions. I'm 10 interested in what you mean by the first sentence of your 11 summary that, "Is it is not possible to decouple strategies 12 for achieving flow dependent objectives in the Bay-Delta 13 area and the impact of providing those flows on tributaries 14 specific objectives upstream." 15 Why isn't it possible to decouple strategies? 16 MR. CRAMER: The statement is that -- the intent is 17 they are not mutually exclusive. And that is that as you 18 choose a flow that you need in the Delta area that has to 19 come from upstream. And as you use up that water, and as I 20 explained in my testimony, that could affect the storage of 21 hypolimnetic water in the reservoir. And that result in 22 warm temperatures, which would damage fish, particularly, 23 eggs in the gravel in the upper reaches of the stream. 24 MR. JACKSON: So in other words, the hypolimnion is 25 important? CAPITOL REPORTERS (916) 923-5447 3014 1 MR. CRAMER: Correct. 2 MR. JACKSON: And metering that out is important? 3 MR. CRAMER: Correct. 4 MR. JACKSON: Now, have you done any studies on how 5 far the cold water from the hypolimnion at Camanche extends 6 downstream? 7 MR. CRAMER: No, I have not. I have only looked at 8 figures that have been put out by East Bay and by just 9 temperature recordings in the stream. 10 MR. JACKSON: Did you review Dr. Hanson's testimony 11 for East Bay MUD? 12 MR. CRAMER: Yes, I reviewed his written testimony. 13 MR. JACKSON: Did you agree with his categories in 14 terms of temperature indicating that temperatures below 15 16 C were appropriate; temperatures between 16 and 20 left 16 you in an unstable situation where there was damage done to 17 the fish; and over 20 C there was major problems, did you 18 review that? 19 MR. CRAMER: I did. 20 MR. JACKSON: Do you agree with that? 21 MR. CRAMER: I agree with that in general. There is 22 always room for specific situations that don't fit when 23 food is limiting, or some other stressors, but in general 24 those are good guidelines. 25 MR. JACKSON: Do you know of any specific CAPITOL REPORTERS (916) 923-5447 3015 1 circumstances on the Mokelumne River from any study that 2 you performed that would indicate that this is a special 3 situation in which those temperature values would not be 4 appropriate? 5 MR. CRAMER: Those temperatures values should be 6 appropriate, in general, on the Mokelumne. 7 MR. JACKSON: All right. Now, calling your attention 8 to Figure 2 which is up above us, are you familiar with the 9 water years that are -- that are associated with those 10 returns? 11 MR. CRAMER: Only in a very general sense. I would 12 have to refer to a table to refresh my memory to be precise 13 about which years belong to which water years. 14 MR. JACKSON: All right. If I will tell you -- and 15 if I'm wrong I'm sure I'll be corrected by everybody, 16 the -- calling your attention to the years '77 -- '76, '77, 17 and '78. 18 MR. CRAMER: Uh-huh. 19 MR. JACKSON: And calling your attention to the years 20 '88, '89, '90 and '91, you've indicated that the recovery 21 that took place after 1991 on the Mokelumne River was the 22 result of good things done in terms of fisheries management 23 on the Mokelumne River since 1990. 24 How can you come to that conclusion when the 25 returns are much worse after the 1988 through '91 drought CAPITOL REPORTERS (916) 923-5447 3016 1 than they were after the '77/'78 drought? 2 MR. CRAMER: You have hit upon one of key points that 3 I intended to make that between -- during the 1980s, the 4 late 1980s none of the fish from the Mokelumne hatchery 5 were released in the Mokelumne River basin. They were 6 released -- they were trucked completely outside -- they 7 were treated in such a way as if you intended them not to 8 come back, that is the way they were treated. 9 And so there were very small runs. I'm sure that 10 the other conditions were not helpful to them, but hatchery 11 practices were such that you would not expect fish to 12 return to the Mokelumne in any number in any of those 13 years. 14 MR. JACKSON: So you believe that the higher returns 15 of the hatchery fish are because hatchery management has 16 improved? 17 MR. CRAMER: Correct. 18 MR. JACKSON: Now, calling your attention to the 19 river spawners, why were there so many more river spawners 20 before the East Bay MUD program started in the drought -- 21 after the drought of '77 and '78 than there were after the 22 latest drought? 23 MR. CRAMER: River spawners in the Mokelumne River 24 are predominantly hatchery fish. They are -- they are fish 25 that do not enter the hatchery, it doesn't mean they're CAPITOL REPORTERS (916) 923-5447 3017 1 naturally produced or anything, it's just fish that spawned 2 in the river. 3 MR. JACKSON: All of them, none of them are naturally 4 spawning? 5 MR. CRAMER: There's no procedure taken to estimate 6 that. 7 MR. JACKSON: Well, then how do you know that's the 8 case? 9 MR. CRAMER: You would make that by inference from 10 the of rate of marking of the fish that you find. There's 11 a certain proportion that are marked hatchery, if that 12 proportion is similar to those that out in the stream that 13 tells you similar -- of similar composition of hatchery 14 fish. 15 MR. JACKSON: Now, calling your attention to the 16 returns in Figure 2, as you can see there are substantially 17 more river spawners after the return of flow after the '77 18 and '78 drought than there have been in terms of river 19 spawners since the latest drought. 20 MR. CRAMER: That is true. 21 MR. JACKSON: Why, sir? 22 MR. CRAMER: The key thing that I think is different, 23 the runs in -- for example, '83, twist my neck around -- I 24 need to see a flow, I could give you some -- before I offer 25 speculation. Let me see if I can find some flow numbers CAPITOL REPORTERS (916) 923-5447 3018 1 here. 2 MR. JACKSON: So it would only be speculation? 3 MR. CRAMER: If I don't have the data, yes. Okay. I 4 have high flow years, very high flow years in the fall of 5 '83 and '84. Now, when you have hatchery fish that 6 disburse that are released in the San Pablo Bay, they do 7 not have good homing instinct for any particular place. 8 They disburse throughout the entire Sacramento -- Central 9 Valley. So they go up the Sacramento, they go up the San 10 Joaquin. 11 Those were years in which the fall flows were 12 quite high, the highest in the period of record that I have 13 before me, substantially higher than any other year. And 14 that means that fish not having specific homing cues would 15 have returned to the Mokelumne a high proportion under 16 those conditions. 17 Strayin is a very dominant characteristic of the 18 returns of hatchery fish in the Central Valley, because 19 they are trucked to San Pablo Bay, where they do not return 20 to their home station, they divert out to the basin and 21 largely according to flow. 22 MR. JACKSON: But if you look at Figure 8 it turns 23 out that there were much less in those years -- '84/'83 24 that you pointed out, there were much less that returned to 25 the Mokelumne than to the Merced. So were fish straying CAPITOL REPORTERS (916) 923-5447 3019 1 throughout the San Joaquin and if so, why did they pick the 2 Merced instead of the Mokelumne? 3 MR. CRAMER: I'm missing which year is a year you 4 think is a contradiction to what I said? 5 MR. JACKSON: Well, if you take a look at Figure 8 6 which is now up, we had a very large return of natural 7 spawners to the Mokelumne according to Figure 2, but, 8 actually, there were many more spawners returning to the 9 Merced during those years than the Mokelumne. 10 MR. CRAMER: Right. 11 MR. JACKSON: So where were these straying fish 12 coming from? 13 MR. CRAMER: You recall the Merced has a hatchery. 14 MR. JACKSON: So you assume then that it was the 15 Merced fish that were straying into the Mokelumne in '84 16 and '85? 17 MR. CRAMER: In order to answer your questions 18 accurately, we would need to pull out the database on the 19 recoveries of coded-wire tags and do accurate expansions of 20 where those fish have returned. I'm, in fact, putting out 21 a report for the Department of Resources. And that would 22 be a good reference to check on those hypotheses. I don't 23 have that with me. 24 MR. JACKSON: Okay. Let's go back to Figure 2. All 25 right. Again, why was it -- what kinds of things could CAPITOL REPORTERS (916) 923-5447 3020 1 have caused the river spawners to be so much higher in a 2 proportion than the hatchery returns after the '78 -- 3 '77/'78 drought than what we had happened after the '91 4 drought? 5 If you notice we're -- we are getting -- well, 6 we're getting fewer fish in the recovery. We're getting 7 way more hatchery returns and much less river spawners. 8 Why would that be true if the conditions in the river are 9 better now than they were then? 10 MR. CRAMER: Remember that the fish returning are 11 hatchery fish. The fish returning to the hatchery 12 effectively now because they were released in the Mokelumne 13 River. That was, again, one of the key points that I made 14 that in the beginning of '93 the practices began with 15 releasing Mokelumne River fish in the Mokelumne so they 16 homed to the Mokelumne. So you're seeing a high level of 17 homing to the hatchery. And that would account why a 18 higher proportion are now coming to the hatchery than just 19 coming to the river. 20 MR. JACKSON: What data do you have to indicate that 21 what we're seeing from '91 to '97, I guess on your graph, 22 is not simply a response to more flow in the river because 23 of the wet years? 24 MR. CRAMER: Is you're question: Why would I say 25 that's not a response? CAPITOL REPORTERS (916) 923-5447 3021 1 MR. JACKSON: Yes. 2 MR. CRAMER: I would not say that we can determine it 3 is not a responsive flow. I believe that flows are 4 involved there. There have been substantial higher and 5 I've already testified to that. The other elements thought 6 are undeniable that there has been a dramatic increase in 7 the number of hatchery fish released in the Mokelumne so 8 that they return to the Mokelumne. The returns to the 9 Mokelumne reflect that they are a high proportion of 10 hatchery fish. 11 MR. JACKSON: Now, comparing the two droughts and the 12 years of recovery after the droughts, how do we know that 13 the diminished river spawners as a response to the latest 14 drought are not simply fish that were returned -- that 15 you've got on the hatchery returns, that they essentially 16 made it instead of spawning in the river all the way to the 17 hatchery and were counted in that category? 18 MR. CRAMER: Somewhere I lost you in that, I'm sorry. 19 MR. JACKSON: Okay. Let's try again. It is clear 20 that the total number of returns was higher after the 21 1977/'78 drought than they have so far returned after the 22 '91 drought; is that correct? 23 MR. CRAMER: Correct. 24 MR. JACKSON: And clearly from your graph it 25 indicates that there are substantially less river spawners CAPITOL REPORTERS (916) 923-5447 3022 1 than there -- than there were after the 1977/'78 drought? 2 MR. CRAMER: Yes. 3 MR. JACKSON: And you've indicated that there are 4 more hatchery returns after this drought. And my question 5 is: How do you know that you're not counting river 6 spawners as hatchery returns so there -- 7 MR. CRAMER: River spawners, the way that those -- 8 river spawners are counted by spawning survey, they're 9 recovered as carcasses in the river and that's expanded as 10 river spawners, or in some of those years it may have also 11 been fish over Woodbridge Dam. There's a total population 12 estimate there. Fish into the hatchery, there's a 13 population estimate there, the remainder would be spawning 14 in the river. The designation of river spawners does not 15 tell you of their origin. 16 MR. JACKSON: Okay. So if those river spawners 17 instead of spawning in a river and dying made it all the 18 way to the hatchery and got cut up to take the eggs, they 19 would go into a different category? 20 MR. CRAMER: They would be counted as hatchery. 21 MR. JACKSON: Right. And in any event, then, we have 22 a less impressive response after the latest drought on the 23 Mokelumne River than we did after the previous drought in 24 '77 and '78 in total fish, correct? 25 MR. BIRMINGHAM: Objection. Ambiguous. CAPITOL REPORTERS (916) 923-5447 3023 1 C.O. CAFFREY: Do you understand the question, sir? 2 Do you understand the question, Mr. Cramer? 3 MR. CRAMER: I'm struggling with if my answer will be 4 an answer to his question. 5 C.O. CAFFREY: Then you do not understand the 6 question. 7 MR. JACKSON: Then he doesn't answer the question. 8 C.O. CAFFREY: All right. Go ahead and try it again, 9 Mr. Jackson. 10 MR. JACKSON: In terms of the rate of recovery after 11 the '77 and '78 drought, the rate was higher after that 12 drought than it has been after the '91 drought. 13 MR. CRAMER: Correct. 14 MR. JACKSON: Now, you've indicated that you don't 15 know if that's better flow, but you have indicated that you 16 think that's because of better management, correct? 17 MR. CRAMER: I have indicated that the increasing 18 returns in the '90s are due to better management. I now 19 have before me all of flow records going back to '64, 20 monthly flow data. By far the highest flows in October, 21 November in that entire period were 1982 -- 1993 and 1994. 22 Flows in those years in both months ran in the neighborhood 23 of 1500 csf average. There is no other year -- well, there 24 are a couple years back in 1968 it came up over a thousand, 25 but essentially all the other years are well under a CAPITOL REPORTERS (916) 923-5447 3024 1 thousand csf up to present excluding '97. 2 MR. JACKSON: So is it then -- how, then, do you 3 differentiate the improvement that has taken place, this 4 management improvement that you credit the returns to, what 5 evidence do you have that that's what's causing it and it's 6 not just a natural fluctuation in the number of fish 7 because of the available habitat, or the available flow? 8 Let me step back. I'll do that again. 9 We've agreed that the returns were greater after 10 the '77 drought than they were after the '91 drought. What 11 evidence do you have from your work to indicate that the 12 improvements since 1991 is related to any activity taken on 13 the river by East Bay MUD, or anyone else? 14 MR. CRAMER: I have, number one, as you can see from 15 the light bars on that graph the numbers of fish that 16 returned to the hatchery. And I also have records of the 17 hatchery releases that show that the hatchery releases in 18 1992 began for the first time in many, many years being 19 released in the Mokelumne River. And then we see in 20 response, more hatchery fish returning to Mokelumne 21 hatchery. 22 We -- I only know by personal communication of 23 working on the stream that a high proportion of all the 24 fish returning on the river are hatchery. So if they are, 25 indeed, hatchery the opportunity for the flows to have CAPITOL REPORTERS (916) 923-5447 3025 1 influenced their life is small. I believe that the flows 2 that have been there, the high flows are good for fish. I 3 just cannot credit the returns with that -- as being 4 created by those high flows alone, because there is the 5 very obvious presence of predominantly hatchery fish. 6 MR. JACKSON: Now, in your answer to an earlier 7 question, and we were talking about years '83 and '84, you 8 talked about high flows in the fall. Why would those be 9 important in larger returns? 10 MR. CRAMER: They are only important when you have 11 fish that are not homing to their stream. They become very 12 important when you have hatchery practices that truck all 13 your fish to San Pablo Bay and I think I explained that 14 one. 15 MR. JACKSON: Now, have you examined the flows in the 16 fall that go past Woodbridge? 17 MR. CRAMER: I have. I have them before me. 18 MR. JACKSON: All right. And are those flows 19 substantially lower for the period '92 to '97 than they 20 were in '83 and '84? 21 MR. CRAMER: What time of year? 22 MR. JACKSON: In the fall, September, November -- 23 October, November. 24 MR. CRAMER: In October/November of -- '82, '83, '84, 25 in '83 they were one -- the mean monthly flows were 1,000 CAPITOL REPORTERS (916) 923-5447 3026 1 and 1,668. In '84, 1285 and 1,979 None of the years here 2 in the 1990s, the highest monthly flow ever in that -- in 3 the '90s was in '95, 639 for October. All the others were 4 generally in the range of 300 or less. 5 MR. JACKSON: So could the lesser response after the 6 '91 event, drought event in comparison to the '78 drought 7 event be caused by the fact that flows in the fall were 8 lower an 1991 than they were in the '83/'84 period? 9 MR. CRAMER: It is very likely that those lesser 10 flows have attracted fewer strays. That is in my view a 11 very beneficial thing. We are trying to encourage native 12 fish, that is we want to allow the opportunity for the 13 river to begin promulgating its own stock and adapting 14 through time to the environment there. That is not 15 possible when you conflict, overwhelm the population with 16 strays from the other basins. 17 MR. JACKSON: Do you have any way of knowing whether 18 the returns in '83 or '84 were strays from other basins? 19 MR. CRAMER: Yes, you do. That would be taken from 20 the code-wire tags. And, again, I'd refer you to a report 21 that I wrote for DWR and that was about a '91 report. 22 MR. JACKSON: And does that report indicate that -- 23 where these fish were straying from? 24 MR. CRAMER: Yes. 25 MR. JACKSON: Where? CAPITOL REPORTERS (916) 923-5447 3027 1 MR. CRAMER: You'd have to look at the report, I 2 don't have it memorized. 3 MR. JACKSON: You don't remember? 4 MR. CRAMER: No. 5 MR. JACKSON: Again, calling your attention to the 6 difference between the recovery after '77 and '78 and the 7 recovery after the '91 drought, did you examine the 8 question of whether or not different operation in the fall 9 of the cross channel gates were a potential reason for the 10 difference in response in returns? 11 MR. CRAMER: I did not. 12 MR. JACKSON: Did you examine any temperature related 13 conditions as part of your work below Woodbridge for the 14 fall months? 15 MR. CRAMER: Did I look at fall temperatures below 16 Woodbridge to see if they related to returns? 17 MR. JACKSON: Yeah. 18 MR. CRAMER: No, I didn't. 19 MR. JACKSON: Did you look at any conditions below 20 Woodbridge in terms of habitat in the fall? 21 MR. CRAMER: The flows. 22 MR. JACKSON: And that's all? 23 MR. CRAMER: That is. In October -- and remember the 24 peak entry of these things is November -- well, in October, 25 November. The temperatures down there generally have not CAPITOL REPORTERS (916) 923-5447 3028 1 been any any range that would be considered to impediment 2 to migration. I didn't feel that was an important factor 3 to consider. 4 MR. JACKSON: Excuse me, the temperatures below 5 Woodbridge are not below 16 C in the fall? 6 MR. CRAMER: No. That's not what I said. I didn't 7 see them as an impediment to migration. 8 MR. JACKSON: What are the temperatures, generally, 9 below Woodbridge in the October and November? 10 MR. CRAMER: I already said I didn't examine them. 11 MR. JACKSON: Thank you. I have no further 12 questions. 13 C.O. CAFFREY: All right. Thank you, Mr. Jackson. 14 That completes the cross-examination for Mr. Cramer only. 15 Do you have any redirect, Mr. Gallery? 16 MR. GALLERY: No, I do not Mr. Caffrey. 17 C.O. CAFFREY: All right. We can, then, release you, 18 Mr. Cramer, to go back home. 19 MR. CRAMER: Good, I appreciate that. 20 C.O. CAFFREY: And with that, then, we will adjourn 21 for today and come back and go through the list of 22 cross-examiners again for the rest of the panel and see if 23 we can complete Phase IV tomorrow. At whatever such time 24 that we might do that we will -- if, in fact, we finish 25 Phase IV tomorrow before 4 o'clock, or at any other time CAPITOL REPORTERS (916) 923-5447 3029 1 before 4 o'clock we will stop, because I don't know -- I 2 doubt it would be fruitful to start Phase VI at that point 3 and then have a three-week hiatus. 4 I just assume come back on the 15th of September 5 and start Phase V. If we were to start another phase 6 tomorrow we would have to start VI, because we have not had 7 sufficient time to delve through the exhibits; is that 8 right, Ms. Leidigh? 9 MS. LEIDIGH: That's correct. 10 C.O. CAFFREY: So I think in the event that we finish 11 IV tomorrow; if we don't, we'll have to continue with IV on 12 the 15th of September and then go to V. 13 Mr. Godwin? 14 MR. GODWIN: You can take me off the list for 15 cross-examination tomorrow. 16 C.O. CAFFREY: All right Thank you, sir. Let me go 17 through the list one more time to see if there are still 18 desire to cross-examine the rest of the panel. I know 19 Mr. Garner has questions. 20 Mr. Godwin, you're off the list. Mr. Brandt, do 21 you wish to cross-examine further? 22 MR. BRANDT: Yes. 23 C.O. CAFFREY: Mr. Brandt is still on. 24 Mr. Birmingham, are you still on? 25 MR. BIRMINGHAM: Yes, sir. CAPITOL REPORTERS (916) 923-5447 3030 1 C.O. CAFFREY: Mr. Birmingham is still on. 2 Mr. Etheridge, still on. Mr. Jackson, are you 3 still on? 4 MR. JACKSON: Yes. 5 C.O. CAFFREY: Mr. Nomellini? 6 MR. NOMELLINI: I'm off. 7 C.O. CAFFREY: Oh, you're off. I'm sorry, sir. 8 Okay. Mr. Nomellini is off. And, of course, staff or 9 Board Members may have questions. 10 MR. NOMELLINI: For this panel. 11 C.O. CAFFREY: For this panel, right, we understand. 12 We would never make such a presumption otherwise, Mr. 13 Nomellini. 14 All right. We will be back tomorrow at 9:00 a.m. 15 in this room. Thank you. 16 (The proceedings concluded at 4:40 p.m.) 17 ---oOo--- 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 3031 1 REPORTER'S_CERTIFICATE __________ ___________ 2 3 STATE OF CALIFORNIA ) ) ss. 4 COUNTY OF SACRAMENTO ) 5 I, MARY R. GALLAGHER, certify that I was the 6 Official Court Reporter for the proceedings named herein, 7 and that as such reporter I reported in verbatim shorthand 8 writing those proceedings; that I thereafter caused my 9 shorthand writing to be reduced to typewriting, and the 10 pages numbered 2786 through 3032 herein constitute a 11 complete, true and correct record of the proceedings. 12 IN WITNESS WHEREOF, I have subscribed this 13 certificate at Sacramento, California, on this 18th day of 14 August, 1997. 15 16 ________________________________ MARY R. GALLAGHER, CSR #10749 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 3032