3033 01 02 03 04 05 STATE WATER RESOURCES CONTROL BOARD 06 07 08 09 10 PUBLIC HEARING 11 12 13 13 1998 BAY-DELTA WATER RIGHTS HEARING 14 15 16 17 HELD AT: 18 BONDERSON BUILDING 18 901 P STREET 19 SACRAMENTO, CALIFORNIA 19 20 20 21 21 THURSDAY, AUGUST 20, 1998 22 9:00 A.M. 22 23 23 24 24 Reported by: ESTHER F. WIATRE 25 CSR NO. 1564 25 3034 01 APPEARANCES 01 BOARD MEMBERS: 02 02 JOHN CAFFREY, COHEARING OFFICER 03 JAMES STUBCHAER, COHEARING OFFICER 03 JOHN W. BROWN 04 MARY JANE FORSTER 04 MARC DEL PIERO 05 05 STAFF MEMBERS: 06 06 WALTER PETTIT, EXECUTIVE DIRECTOR 07 VICTORIA WHITNEY, CHIEF BAY-DELTA UNIT 07 THOMAS HOWARD, SUPERVISING ENGINEER 08 08 COUNSEL: 09 09 WILLIAM R. ATTWATER, CHIEF COUNSEL 10 BARBARA LEIDIGH 10 11 11 12 12 13 13 14 14 15 15 16 16 17 17 18 18 19 19 20 20 21 21 22 22 23 23 24 24 25 25 3035 01 REPRESENTATIVES 01 02 PRINCETON CODORA GLENN IRRIGATION DISTRICT, et al.: 02 03 FROST, DRUP & ATLAS 03 134 West Sycamore Street 04 Willows, California 95988 04 BY: J. MARK ATLAS, ESQ. 05 05 JOINT WATER DISTRICTS: 06 06 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON: 07 P.O. BOX 1679 07 Oroville, California 95965 08 BY: WILLIAM H. BABER III, ESQ. 08 09 CALIFORNIA SPORTFISHING PROTECTION ALLIANCE: 09 10 ROBERT J. BAIOCCHI 10 P.O. Box 357 11 Quincy, California 11 12 BELLA VISTA WATER DISTRICT: 12 13 BRUCE L. BELTON, ESQ. 13 2525 Park Marina Drive, Suite 102 14 Redding, California 96001 14 15 WESTLANDS WATER DISTRICT: 15 16 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 16 400 Capitol Mall, 27th Floor 17 Sacramento, California 95814 17 BY: THOMAS W. BIRMINGHAM, ESQ. 18 and 18 AMELIA THOMAS, ESQ. 19 19 THE BAY INSTITUTE OF SAN FRANCISCO: 20 20 GARY BOBKER 21 55 Shaver Street, Suite 330 21 San Rafael, California 94901 22 22 CITY OF ANTIOCH, et al.: 23 23 FREDERICK BOLD, JR., ESQ. 24 1201 California Street, Suite 1303 24 San Francisco, California 94109 25 25 3036 01 REPRESENTATIVES 01 02 LEAGUE OF WOMEN VOTERS: 02 03 ROBERTA BORGONOVO 03 2480 Union Street 04 San Francisco, California 94123 04 05 UNITED STATES DEPARTMENT OF THE INTERIOR: 05 06 OFFICE OF THE SOLICITOR 06 2800 Cottage Way, Room E1712 07 Sacramento, California 95825 07 BY: ALF W. BRANDT, ESQ. 08 CALIFORNIA URBAN WATER AGENCIES: 08 09 BYRON M. BUCK 09 455 Capitol Mall, Suite 705 10 Sacramento, California 95814 10 11 RANCHO MURIETA COMMUNITY SERVICES DISTRICT: 11 12 MCDONOUGH, HOLLAND & ALLEN 12 555 Capitol Mall, 9th Floor 13 Sacramento, California 95814 13 BY: VIRGINIA A. CAHILL, ESQ. 14 14 CALIFORNIA DEPARTMENT OF FISH AND GAME: 15 15 OFFICE OF ATTORNEY GENERAL 16 1300 I Street, Suite 1101 16 Sacramento, California 95814 17 BY: MATTHEW CAMPBELL, ESQ. 17 18 NATURAL RESOURCES DEFENSE COUNCIL: 18 19 HAMILTON CANDEE, ESQ. 19 71 Stevenson Street 20 San Francisco, California 94105 20 21 ARVIN-EDISON WATER STORAGE DISTRICT, et al.: 21 22 DOOLEY HERR & WILLIAMS 22 3500 West Mineral King Avenue, Suite C 23 Visalia, California 93291 23 BY: DANIEL M. DOOLEY, ESQ. 24 24 25 25 3037 01 REPRESENTATIVES 01 02 SACRAMENTO MUNICIPAL UTILITY DISTRICT: 02 03 LESLIE A. DUNSWORTH, ESQ. 03 6201 S Street 04 Sacramento, California 95817 04 05 SOUTH SAN JOAQUIN IRRIGATION DISTRICT, et al.: 05 06 BRAY, GEIGER, RUDQUIST & NUSS 06 311 East Main Street, 4th Floor 07 Stockton, California 95202 07 BY: STEVEN P. EMRICK, ESQ. 08 08 EAST BAY MUNICIPAL UTILITY DISTRICT: 09 09 EBMUD OFFICE OF GENERAL COUNSEL 10 375 Eleventh Street 10 Oakland, California 94623 11 BY: FRED S. ETHERIDGE, ESQ. 11 12 GOLDEN GATE AUDUBON SOCIETY: 12 13 ARTHUR FEINSTEIN 13 2530 San Pablo Avenue, Suite G 14 Berkeley, California 94702 14 15 CONAWAY CONSERVANCY GROUP: 15 16 UREMOVIC & FELGER 16 P.O. Box 5654 17 Fresno, California 93755 17 BY: WARREN P. FELGER, ESQ. 18 18 THOMES CREEK WATER ASSOCIATION: 19 19 THOMES CREEK WATERSHED ASSOCIATION 20 P.O. Box 2365 20 Flournoy, California 96029 21 BY: LOIS FLYNNE 21 22 COURT APPOINTED REPS OF WESTLANDS WD AREA 1, et al.: 22 23 LAW OFFICES OF SMILAND & KHACHIGIAN 23 601 West Fifth Street, Seventh Floor 24 Los Angeles, California 90075 24 BY: CHRISTOPHER G. FOSTER, ESQ. 25 25 3038 01 REPRESENTATIVES 01 02 CITY AND COUNTY OF SAN FRANCISCO: 02 03 OFFICE OF THE CITY ATTORNEY 03 1390 Market Street, Sixth Floor 04 San Francisco, California 94102 04 BY: DONN W. FURMAN, ESQ. 05 05 CAMP FAR WEST IRRIGATION DISTRICT, et al.: 06 06 DANIEL F. GALLERY, ESQ. 07 926 J Street, Suite 505 07 Sacramento, California 95814 08 08 BOSTON RANCH COMPANY, et al.: 09 09 J.B. BOSWELL COMPANY 10 101 West Walnut Street 10 Pasadena, California 91103 11 BY: EDWARD G. GIERMANN 11 12 SAN JOAQUIN RIVER GROUP AUTHORITY, et al.: 12 13 GRIFFTH, MASUDA & GODWIN 13 517 East Olive Street 14 Turlock, California 95381 14 BY: ARTHUR F. GODWIN, ESQ. 15 15 NORTHERN CALIFORNIA WATER ASSOCIATION: 16 16 RICHARD GOLB 17 455 Capitol Mall, Suite 335 17 Sacramento, California 95814 18 18 PLACER COUNTY WATER AGENCY, et al.: 19 19 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 20 400 Capitol Mall, 27th Floor 20 Sacramento, California 95814 21 BY: JANET GOLDSMITH, ESQ. 21 22 ENVIRONMENTAL DEFENSE FUND: 22 23 DANIEL SUYEYASU, ESQ. 23 and 24 THOMAS J. GRAFF, ESQ. 24 5655 College Avenue, Suite 304 25 Oakland, California 94618 25 3039 01 REPRESENTATIVES 01 02 CALAVERAS COUNTY WATER DISTRICT: 02 03 SIMON GRANVILLE 03 P.O. Box 846 04 San Andreas, California 95249 04 05 CHOWCHILLA WATER DISTRICT, et al.: 05 06 GREEN, GREEN & RIGBY 06 P.O. Box 1019 07 Madera, California 93639 07 BY: DENSLOW GREEN, ESQ. 08 08 CALIFORNIA FARM BUREAU FEDERATION: 09 09 DAVID J. GUY, ESQ. 10 2300 River Plaza Drive 10 Sacramento, California 95833 11 11 SANTA CLARA VALLEY WATER DISTRICT: 12 12 MORRISON & FORESTER 13 755 Page Mill Road 13 Palo Alto, California 94303 14 BY: KEVIN T. HAROFF, ESQ. 14 15 CITY OF SHASTA LAKE: 15 16 ALAN N. HARVEY 16 P.O. Box 777 17 Shasta Lake, California 96019 17 18 COUNTY OF STANISLAUS: 18 19 MICHAEL G. HEATON, ESQ. 19 926 J Street 20 Sacramento, California 95814 20 21 GORRILL LAND COMPANY: 21 22 GORRILL LAND COMPANY 22 P.O. Box 427 23 Durham, California 95938 23 BY: DON HEFFREN 24 24 25 25 3040 01 REPRESENTATIVES 01 02 SOUTH DELTA WATER AGENCY: 02 03 JOHN HERRICK, ESQ. 03 3031 West March Lane, Suite 332 East 04 Stockton, California 95267 04 05 COUNTY OF GLENN: 05 06 NORMAN Y. HERRING 06 525 West Sycamore Street 07 Willows, California 95988 07 08 REGIONAL COUNCIL OF RURAL COUNTIES: 08 09 MICHAEL B. JACKSON, ESQ. 09 1020 Twelfth Street, Suite 400 10 Sacramento, California 95814 10 11 DEER CREEK WATERSHED CONSERVANCY: 11 12 JULIE KELLY 12 P.O. Box 307 13 Vina, California 96092 13 14 DELTA TRIBUTARY AGENCIES COMMITTEE: 14 15 MODESTO IRRIGATION DISTRICT 15 P.O. Box 4060 16 Modesto, California 95352 16 BY: BILL KETSCHER 17 17 SAVE THE SAN FRANCISCO BAY ASSOCIATION: 18 18 SAVE THE BAY 19 1736 Franklin Street 19 Oakland, California 94612 20 BY: CYNTHIA L. KOEHLER, ESQ. 20 21 BATTLE CREEK WATERSHED LANDOWNERS: 21 22 BATTLE CREEK WATERSHED CONSERVANCY 22 P.O. Box 606 23 Manton, California 96059 23 24 24 25 25 3041 01 REPRESENTATIVES 01 02 BUTTE SINK WATERFOWL ASSOCIATION, et al.: 02 03 MARTHA H. LENNIHAN, ESQ. 03 455 Capitol Mall, Suite 300 04 Sacramento, California 95814 04 05 CITY OF YUBA CITY: 05 06 WILLIAM P. LEWIS 06 1201 Civic Center Drive 07 Yuba City 95993 07 08 BROWNS VALLEY IRRIGATION DISTRICT, et al.: 08 09 BARTKEWICZ, KRONICK & SHANAHAN 09 1011 22nd Street, Suite 100 10 Sacramento, California 95816 10 BY: ALAN B. LILLY, ESQ. 11 11 CONTRA COSTA WATER DISTRICT: 12 12 BOLD, POLISNER, MADDOW, NELSON & JUDSON 13 500 Ygnacio Valley Road, Suite 325 13 Walnut Creek, California 94596 14 BY: ROBERT B. MADDOW, ESQ. 14 15 GRASSLAND WATER DISTRICT: 15 16 DON MARCIOCHI 16 22759 South Mercey Springs Road 17 Los Banos, California 93635 17 18 SAN LUIS CANAL COMPANY: 18 19 FLANNIGAN, MASON, ROBBINS & GNASS 19 3351 North M Street, Suite 100 20 Merced, California 95344 20 BY: MICHAEL L. MASON, ESQ. 21 21 STONY CREEK BUSINESS AND LAND OWNERS COALITION: 22 22 R.W. MCCOMAS 23 4150 County Road K 23 Orland, California 95963 24 24 25 25 3042 01 REPRESENTATIVES 01 02 TRI-DAM POWER AUTHORITY: 02 03 TUOLUMNE UTILITIES DISTRICT 03 P.O. Box 3728 04 Sonora, California 95730 04 BY: TIM MCCULLOUGH 05 05 DELANO-EARLIMART IRRIGATION DISTRICT, et al.: 06 06 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 07 P.O. Box 1679 07 Oroville, California 95965 08 BY: JEFFREY A. MEITH, ESQ. 08 09 HUMANE FARMING ASSOCIATION: 09 10 BRADLEY S. MILLER 10 1550 California Street, Suite 6 11 San Francisco, California 94109 11 12 CORDUA IRRIGATION DISTRICT, et al.: 12 13 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 13 P.O. Box 1679 14 Oroville, California 95965 14 BY: PAUL R. MINASIAN, ESQ. 15 15 EL DORADO COUNTY WATER AGENCY: 16 16 DE CUIR & SOMACH 17 400 Capitol Mall, Suite 1900 17 Sacramento, California 95814 18 BY: DONALD B. MOONEY, ESQ. 18 19 GLENN COUNTY FARM BUREAU: 19 20 STEVE MORA 20 501 Walker Street 21 Orland, California 95963 21 22 MODESTO IRRIGATION DISTRICT: 22 23 JOEL MOSKOWITZ 23 P.O. Box 4060 24 Modesto, California 95352 24 25 25 3043 01 REPRESENTATIVES 01 02 PACIFIC GAS & ELECTRIC: 02 03 RICHARD H. MOSS, ESQ. 03 P.O. Box 7442 04 San Francisco, California 94120 04 05 CENTRAL DELTA WATER AGENCY, et al.: 05 06 NOMELLINI, GRILLI & MCDANIEL 06 P.O. Box 1461 07 Stockton, California 95201 07 BY: DANTE JOHN NOMELLINI, ESQ. 08 and 08 DANTE JOHN NOMELLINI, JR., ESQ. 09 09 TULARE LAKE BASIN WATER STORAGE UNIT: 10 10 MICHAEL NORDSTROM 11 1100 Whitney Avenue 11 Corcoran, California 93212 12 12 AKIN RANCH, et al.: 13 13 DOWNEY, BRAND, SEYMOUR & ROHWER 14 555 Capitol Mall, 10th Floor 14 Sacramento, California 95814 15 BY: KEVIN M. O'BRIEN, ESQ. 15 16 OAKDALE IRRIGATION DISTRICT: 16 17 O'LAUGHLIN & PARIS 17 870 Manzanita Court, Suite B 18 Chico, California 95926 18 BY: TIM O'LAUGHLIN, ESQ. 19 19 SIERRA CLUB: 20 20 JENNA OLSEN 21 85 Second Street, 2nd Floor 21 San Francisco, California 94105 22 22 YOLO COUNTY BOARD OF SUPERVISORS: 23 23 LYNNEL POLLOCK 24 625 Court Street 24 Woodland, California 95695 25 25 3044 01 REPRESENTATIVES 01 02 PATRICK PORGENS AND ASSOCIATES: 02 03 PATRICK PORGENS 03 P.O. Box 60940 04 Sacramento, California 95860 04 05 BROADVIEW WATER DISTRICT, et al.: 05 06 DIANE RATHMANN 06 07 FRIENDS OF THE RIVER: 07 08 BETSY REIFSNIDER 08 128 J Street, 2nd Floor 09 Sacramento, California 95814 09 10 MERCED IRRIGATION DISTRICT: 10 11 FLANAGAN, MASON, ROBBINS & GNASS 11 P.O. Box 2067 12 Merced, California 95344 12 BY: KENNETH M. ROBBINS, ESQ. 13 13 CENTRAL SAN JOAQUIN WATER CONSERVATION DISTRICT: 14 14 REID W. ROBERTS, ESQ. 15 311 East Main Street, Suite 202 15 Stockton, California 95202 16 16 METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA: 17 17 JAMES F. ROBERTS 18 P.O. Box 54153 18 Los Angeles, California 90054 19 19 SACRAMENTO AREA WATER FORUM: 20 20 CITY OF SACRAMENTO 21 980 9th Street, 10th Floor 21 Sacramento, California 95814 22 BY: JOSEPH ROBINSON, ESQ. 22 23 23 24 24 25 25 3045 01 REPRESENTATIVES 01 02 TUOLUMNE RIVER PRESERVATION TRUST: 02 03 NATURAL HERITAGE INSTITUTE 03 114 Sansome Street, Suite 1200 04 San Francisco, California 94194 04 BY: RICHARD ROOS-COLLINS, ESQ. 05 05 CALIFORNIA DEPARTMENT OF WATER RESOURCES: 06 06 DAVID SANDINO, ESQ. 07 CATHY CROTHERS, ESQ. 07 P.O. Box 942836 08 Sacramento, California 94236 08 09 FRIANT WATER USERS AUTHORITY: 09 10 GARY W. SAWYERS, ESQ. 10 575 East Alluvial, Suite 101 11 Fresno, California 93720 11 12 KERN COUNTY WATER AGENCY: 12 13 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 13 400 Capitol Mall, 27th Floor 14 Sacramento, California 95814 14 BY: CLIFFORD W. SCHULZ, ESQ. 15 15 SAN JOAQUIN RIVER EXCHANGE CONTRACTORS: 16 16 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON: 17 P.O. Box 1679 17 Oroville, California 95965 18 BY: MICHAEL V. SEXTON, ESQ. 18 19 SAN JOAQUIN COUNTY: 19 20 NEUMILLER & BEARDSLEE 20 P.O. Box 20 21 Stockton, California 95203 21 BY: THOMAS J. SHEPHARD, SR., ESQ. 22 22 CITY OF STOCKTON: 23 23 DE CUIR & SOMACH 24 400 Capitol Mall, Suite 1900 24 Sacramento, California 95814 25 BY: PAUL S. SIMMONS, ESQ. 25 3046 01 REPRESENTATIVES 01 02 ORLAND UNIT WATER USERS' ASSOCIATION: 02 03 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 03 P.O. Box 1679 04 Oroville, California 95965 04 BY: M. ANTHONY SOARES, ESQ. 05 05 GLENN-COLUSA IRRIGATION DISTRICT: 06 06 DE CUIR & SOMACH 07 400 Capitol Mall, Suite 1900 07 Sacramento, California 95814 08 BY: STUART L. SOMACH, ESQ. 08 09 NORTH SAN JOAQUIN WATER CONSERVATION DISTRICT: 09 10 JAMES F. SORENSEN CONSULTING CIVIL ENGINEER, INC. 10 209 South Locust Street 11 Visalia, California 93279 11 BY: JAMES F. SORENSEN 12 12 PARADISE IRRIGATION DISTRICT: 13 13 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 14 P.O. Box 1679 14 Oroville, California 95695 15 BY: WILLIAM H. SPRUANCE, ESQ. 15 16 COUNTY OF COLUSA: 16 17 DONALD F. STANTON, ESQ. 17 1213 Market Street 18 Colusa, California 95932 18 19 COUNTY OF TRINITY: 19 20 COUNTY OF TRINITY - NATURAL RESOURCES 20 P.O. Box 156 21 Hayfork, California 96041 21 BY: TOM STOKELY 22 22 CITY OF REDDING: 23 23 JEFFERY J. SWANSON, ESQ. 24 2515 Park Marina Drive, Suite 102 24 Redding, California 96001 25 25 3047 01 REPRESENTATIVES 01 02 TULARE IRRIGATION DISTRICT: 02 03 TEHAMA COUNTY RESOURCE CONSERVATION DISTRICT 03 2 Sutter Street, Suite D 04 Red Bluff, California 96080 04 BY: ERNEST E. WHITE 05 05 STATE WATER CONTRACTORS: 06 06 BEST BEST & KREIGER 07 P.O. Box 1028 07 Riverside, California 92502 08 BY: ERIC GARNER, ESQ. 08 09 COUNTY OF TEHAMA, et al.: 09 10 COUNTY OF TEHAMA BOARD OF SUPERVISORS: 10 P.O. Box 250 11 Red Bluff, California 96080 11 BY: CHARLES H. WILLARD 12 12 MOUNTAIN COUNTIES WATER RESOURCES ASSOCIATION: 13 13 CHRISTOPHER D. WILLIAMS 14 P.O. Box 667 14 San Andreas, California 95249 15 15 JACKSON VALLEY IRRIGATION DISTRICT: 16 16 HENRY WILLY 17 6755 Lake Amador Drive 17 Ione, California 95640 18 18 SOLANO COUNTY WATER AGENCY, et al.: 19 19 HERUM, CRABTREE, DYER, ZOLEZZI & TERPSTRA 20 2291 West March Lane, S.B.100 20 Stockton, California 95207 21 BY: JEANNE M. ZOLEZZI, ESQ. 21 22 ---oOo--- 22 23 23 24 24 25 25 3048 01 INDEX 01 PAGE 02 RESUMPTION OF HEARING 3050 02 AFTERNOON SESSION 3150 03 03 WOODBRIDGE IRRIGATION DISTRICT: 04 PANEL: 04 ANDERS CHRISTENSEN 05 JAMES HANSON 05 CROSS-EXAMINATION: 06 BY MR. GARNER 3050 06 BY MR. BRANDT 3055 07 BY MR. BIRMINGHAM 3070 07 BY MR. ETHERIDGE 3092 08 BY MR. MADDOW 3099 08 BY MR. JACKSON 3101 09 BY BOARD MEMBERS 3113, 3120 09 REDIRECT EXAMINATION: 10 BY MR. GALLERY 3115 10 11 SOLANO COUNTY WATER AGENCY AND 11 DEPARTMENT OF WATER RESOURCES: 12 12 PANEL: 13 DAVID OKITA 13 ROLAND SANFORD 14 DWIGHT RUSSELL 14 DIRECT EXAMINATION: 15 BY MS. ZOLEZZI 3122 15 BY MR. SANDINO 3130 16 CROSS-EXAMINATION: 16 BY MR. GALLERY 3133 17 BY MR. O'BRIEN 3134 17 BY MR. MADDOW 3137 18 BY MS. CAHILL 3139 18 BY STAFF 3141 19 REDIRECT EXAMINATION: 19 BY MS. ZOLEZZI 3143 20 RECROSS-EXAMINATION: 20 BY MR. CAMPBELL 3144 21 BY STAFF 3144 21 22 23 ---oOo--- 24 25 3049 01 INDEX (CONT.) 02 PAGE 03 DEPARTMENT OF THE INTERIOR: 04 POLICY STATEMENT: 04 BY MR. BRANDT 3150 05 05 PANEL: 06 CAY GOUDE 06 ROGER GUINEE 07 DIRECT EXAMINATION: 07 BY MR. BRANDT 3157 08 CROSS-EXAMINATION: 08 BY MR. JACKSON 3183 09 09 10 ---oOo--- 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3050 01 SACRAMENTO, CALIFORNIA 02 THURSDAY, AUGUST 20, 1998 03 ---oOo--- 04 C.O. CAFFREY: Good morning. This is the continuation 05 of the Bay-Delta Water Rights hearing, Phase IV, and we are 06 cross-examining Mr. Gallery's panel, representing the 07 Woodbridge Irrigation District. 08 Last night we went through the cross-examiners to 09 accommodate Mr. Cramer's travel schedule. We will now go 10 back down through the list for the remainder of the panel. 11 So, is Mr. Garner here? 12 Good morning, sir, welcome. 13 ---oOo--- 14 CROSS-EXAMINATION OF WOODBRIDGE IRRIGATION DISTRICT 15 BY STATE WATER CONTRACTORS 16 BY MR. GARNER 17 MR. GARNER: Morning, Mr. Chairman, Members of the 18 Board. 19 Eric Garner on behalf of State Water Contractors. 20 Morning, Mr. Hanson. 21 MR. J. HANSON: Morning. 22 MR. GARNER: I believe you testified yesterday that 23 there was about 41,000 acres located within the Woodbridge 24 Irrigation District; is that correct? 25 MR. J. HANSON: That's correct. 3051 01 MR. GARNER: How much of that acreage with the district 02 is irrigated acreage? 03 MR. J. HANSON: Irrigated from the district or 04 irrigated in total from groundwater and -- I want it 05 clarified. 06 MR. GARNER: Irrigated -- 07 MR. J. HANSON: Essentially, all of it is irrigated. 08 MR. GARNER: There are differences in that irrigation, 09 is that right, where you are going in your response to me? 10 MR. J. HANSON: That's correct. A portion of it is 11 irrigated from surface deliveries from the Mokelumne River 12 to the Woodbridge Irrigation District canal system. The 13 balance is irrigated by groundwater wells. 14 MR. GARNER: About how much is irrigated from Mokelumne 15 River? 16 MR. J. HANSON: Recent years, upwards of 13,000 acres 17 per year. 18 MR. GARNER: I believe you also testified it was 19 something like about 21,000 acres have been irrigated with 20 some surface water in the last five years? 21 MR. J. HANSON: That's correct. 22 MR. GARNER: Go ahead. How much is irrigated solely on 23 groundwater, then? 24 MR. J. HANSON: In a year or permanent crops, because 25 rotation out there with the annuals? Could you clarify? 3052 01 MR. GARNER: I guess you said -- you said in the last 02 five years about 21,000 acres receive at least some surface 03 water? 04 MR. J. HANSON: That's correct. 05 MR. GARNER: Can we assume the other 20,000 acres are 06 solely reliant on groundwater at all times? 07 MR. J. HANSON: To the extent that they are not idle, 08 yes. 09 MR. GARNER: What type of crops are irrigated within 10 the district? 11 MR. J. HANSON: I think Andy would be better qualified 12 to answer. He is the guy that keeps the books. 13 MR. GARNER: Certainly. 14 MR. CHRISTENSEN: There is a wide variety of crops that 15 are irrigated from the district's surface water supply 16 system and from the underground, probably the most notable 17 crops is the vines irrigated within the area, but we also 18 have a lot of nut tree crops. We have pumpkins, asparagus, 19 tomatoes. Then you get into the lower value crops: alfalfa 20 and some wheat, oats, that type of thing. 21 MR. GARNER: Do you have a rough estimate of 22 approximate acreages that are in, say, vines? 23 MR. CHRISTENSEN: Our -- if you are speaking about the 24 acres irrigated by the surface water supply system, we've 25 irrigated approximately 4 to 5,000 acres of vines per year. 3053 01 MR. GARNER: That puts acreage beyond the actual 02 boundaries of the district. 03 MR. CHRISTENSEN: No, it doesn't. It includes the 04 acres irrigated by the surface water supply system by 05 Woodbridge. If you were to go outside the bounds of the 06 area, I wouldn't have an accurate number of the total acres 07 of vines irrigated. 08 MR. GARNER: I am sorry, I am probably missing 09 something obvious here. You said about 45,000 acres of 10 vines are irrigated, or did I -- 11 MR. CHRISTENSEN: Four to 5,000. 12 MR. GARNER: I'm sorry. 13 How much in nut and trees? 14 MR. CHRISTENSEN: I don't have an accurate number on 15 that. It's probably in the neighborhood of about 1,500, 16 2,000 acres. 17 MR. GARNER: You also characterized some crops as lower 18 value crops. Do you have a rough estimate of how many acres 19 would be in those crops? 20 MR. CHRISTENSEN: The exact number I don't have, no. 21 MR. GARNER: Mr. Hanson, on average, let's look at the 22 last ten-year period. How much groundwater has been pumped 23 within the district to irrigate lands within the district? 24 MR. J. HANSON: I don't know. 25 MR. GARNER: You have no estimate at all? 3054 01 MR. J. HANSON: No estimate. 02 MR. GARNER: You testified the basin is in overdraft, 03 in your opinion; is that correct? 04 MR. J. HANSON: That's correct. 05 MR. GARNER: In reaching that conclusion did you do any 06 type of water balance for the area? 07 MR. J. HANSON: No. I haven't. We've had the 08 Department of Water Resources construct a computer model for 09 the district, but they never completed it. So I haven't 10 made an attempt to do a water balance. 11 MR. GARNER: Upon what, then, did you base your 12 overdraft opinion? 13 MR. J. HANSON: I'm basing that on the history of the 14 groundwater changes. 15 MR. GARNER: The groundwater level changes that you 16 discussed on the graphs yesterday? 17 MR. J. HANSON: That's correct. 18 MR. GARNER: Do you have any estimate of the total 19 amount of water that is applied within the district on an 20 annual basis? 21 MR. J. HANSON: No, I don't. I have not made a 22 determination of that. 23 MR. GARNER: Mr. Christensen, do you have any estimate 24 of total amount of applied water? 25 MR. CHRISTENSEN: No, I don't. 3055 01 MR. GARNER: Just a couple more questions, Mr. Hanson. 02 I believe you testified yesterday that the annual seepage 03 from the district's canal system is somewhere on the order 04 of 15 to 18,000 acre-feet per year? 05 MR. J. HANSON: That is our estimate, yes. 06 MR. GARNER: What percentage of that or what percentage 07 is that of the surface water that moves through the canals 08 in a year? 09 MR. J. HANSON: Well, it depends on the year. But if 10 we have, say, a 60,000 acre-foot a year, 18 would be about 11 30 percent, I guess. 12 MR. GARNER: Thank you very much. 13 C.O. CAFFREY: Thank you, Mr. Garner. 14 Mr. Brandt. 15 ---oOo--- 16 CROSS-EXAMINATION OF WOODBRIDGE IRRIGATION DISTRICT 17 BY DEPARTMENT OF THE INTERIOR 18 BY MR. BRANDT 19 MR. BRANDT: Mr. Christensen, can you clarify for me 20 how much water Woodbridge is giving up by allowing flows to 21 go past Woodbridge Dam? 22 MR. CHRISTENSEN: Are you referring to the JSA flow? 23 MR. BRANDT: Yes. 24 MR. CHRISTENSEN: I believe that is a question in 25 specific that would be better answered by your engineer, Mr. 3056 01 Hanson. 02 MR. BRANDT: Mr. Hanson. 03 MR. J. HANSON: I think I testified yesterday that the 04 number of years that water is available to Woodbridge in 05 excess of the 60,000 permanent regulated base supply is 06 about 60 percent of the years. So, 6 years out of 10 or 60 07 out of 100. However you want to figure it. 08 MR. BRANDT: How much water is that? 09 MR. J. HANSON: We estimate that, based on the East Bay 10 exhibits that I testified to yesterday, I think it was 11 Appendix F and G contained in Exhibit 4, comparing those, 12 the flows set forth in there, as the flows below Lodi in the 13 Mokelumne River for each of the 70 years or so that they 14 studied it, that the reduction would be about 10 percent. 15 MR. BRANDT: So can -- 16 MR. J. HANSON: So, instead of 60 percent of the years 17 available it would be 50 percent. So we lose 10 percent of 18 the total. 19 MR. BRANDT: Can you give me an estimate of how much 20 water that is? 21 MR. J. HANSON: Based on an additional diversion of 22 15,000, if I cut it off there, assuming we get 60,000, 23 Woodbridge can generally find a home for that water, and is 24 generally available after or during June and July and 25 thereafter into the season, so 15,000 times would be about 3057 01 1500 acre-feet a year, average. Could be as much as 15,000 02 in any given year. 03 MR. BRANDT: So, the water that East Bay MUD is going 04 to be putting down the river from its facilities, are you 05 telling me that that would be part of the 60,000 in half the 06 years? 07 MR. J. HANSON: No. I am saying that in half of the 08 years there would be water in excess of the 60,000 that 09 would be available for Woodbridge to divert under the 10 priority of its licenses over and above East Bay's 11 commitments downstream. 12 MR. BRANDT: We are talking 1500 acre-feet in 50 13 percent of the years? 14 MR. J. HANSON: That's correct -- no, that is not 15 correct. I am saying there is 1,500 acre-feet a year for 16 the entire study period. 17 MR. BRANDT: That is an average? 18 MR. J. HANSON: That is an average. I say it could be 19 as much as 15,000 in most years that we -- that that water 20 is available, and that is limiting it to a total diversion 21 of about 75,000. It is entirely possible that we could take 22 more water in some years when it is available, but I am 23 limiting it to 15,000. 24 MR. BRANDT: Now, do you understand that the flows 25 under the JSA, are they pretty much of a stable amount 3058 01 throughout the year, roughly stable? 02 MR. J. HANSON: I don't know that. 03 MR. BRANDT: Do you know what the flows are in the JSA? 04 MR. J. HANSON: I have the studies, yes. 05 MR. BRANDT: You look at whether the studies or amounts 06 that the East Bay MUD has agreed to provide -- can you look 07 at those numbers. 08 MR. J. HANSON: I am looking at them. Here are the two 09 East Bay exhibits that I used to make my determination, and 10 they are based on monthly averages. 11 MR. BRANDT: Those are model numbers? 12 MR. J. HANSON: Are you taking about these numbers? 13 MR. BRANDT: Yes. Let's specify what that is. 14 MR. J. HANSON: The JSA flows. 15 MR. BRANDT: Looking at those flows, are those, over 16 the entire year period, are they, more or less, roughly 17 stable throughout a year? 18 MR. J. HANSON: Well, these numbers are by month. 19 MR. BRANDT: Right. 20 MR. J. HANSON: I am assuming that these numbers apply. 21 MR. BRANDT: What is the range of numbers that apply 22 during the years? Give me the range. 23 MR. J. HANSON: It all depends on the year. Below 24 normal years they range from 20 second-feet to a hundred -- 25 to 200. And I think the other extreme of that would be the 3059 01 above normal. Normal and above years range from 25 to 300. 02 MR. BRANDT: During years -- that is throughout the 03 year period. It doesn't go up significantly during the 04 summer, for instance, during irrigation season? 05 MR. J. HANSON: What doesn't go up? 06 MR. BRANDT: The amount of flows that East Bay MUD 07 supplies. 08 MR. J. HANSON: They are specified here for each month. 09 MR. BRANDT: Can you give me a sense of how much they 10 increase during the summer months? 11 MR. J. HANSON: Start from the top -- 12 MR. BIRMINGHAM: Excuse me, Mr. Chairman? 13 C.O. CAFFREY: Mr. Birmingham. 14 MR. BIRMINGHAM: I noted that Mr. Brandt and Mr. Hanson 15 seem to be talking over one another. I wonder if the court 16 reporter is able to transcribe -- 17 C.O. CAFFREY: I usually rely on the court reporter to 18 notify me instantaneously if she is having any difficulty. 19 Thank you, Mr. Birmingham, for your diligent appraisal 20 of what is going on. 21 Esther, are you having any problem? 22 THE COURT REPORTER: Just a little bit of catch-up. 23 C.O. CAFFREY: Don't be afraid to raise your hand. 24 Let me remind all the witnesses and all the attorneys 25 and all the Board Members and everybody else in the room, 3060 01 that for purposes of the recording we must speak one at a 02 time. So, it is very helpful if you always defer if you 03 hear another voice, even if you feel you have the right to 04 be speaking, so we get it cleared up. 05 MEMBER DEL PIERO: Mr. Chairman. 06 C.O. CAFFREY: Mr. Del Piero. 07 MEMBER DEL PIERO: Number one rule, Board Members know 08 that if it doesn't get into the record, it wasn't said. So 09 remember that, gentlemen. 10 C.O. CAFFREY: Thank you, Mr. Birmingham. 11 MR. J. HANSON: We will try harder. 12 MR. BRANDT: Thank you, Mr. Chairman. 13 C.O. CAFFREY: One at a time, everybody. 14 Thank you. 15 MR. BRANDT: Can you tell me which page you are looking 16 at? 17 MR. J. HANSON: I am looking at the Attachment 1, 18 normal and above year flows. 19 MR. BRANDT: Page, at the bottom? 20 MR. J. HANSON: It is 021. It's blotted out on mine. 21 MR. BRANDT: Why don't you read the -- you are talking 22 normal and above years? 23 MR. J. HANSON: Yes. 24 MR. BRANDT: That is Page 1 of 5 on Attachment 1. 25 MR. J. HANSON: Okay. 3061 01 MR. BRANDT: So, we are -- the amount that you are 02 agreeing -- that Woodbridge is offering to pass on down, is 03 that the amount that is the agreed release from Camanche Dam? 04 MR. J. HANSON: Is your question are the amounts that 05 are set forth here the amount that we are agreeing to give 06 up? 07 MR. BRANDT: Yes. 08 MR. J. HANSON: No. 09 MR. BRANDT: What are the amounts that you are agreeing 10 to give up? 11 MR. J. HANSON: We are agreeing to give up those flows 12 in excess of these amounts which would be available to 13 Woodbridge under the priority of its licenses. 14 MR. BRANDT: So these -- but these flows would go down 15 the amount from Camanche Dam, those flows would go down, and 16 you wouldn't have the right to take those flows in any case? 17 MR. J. HANSON: That is correct. Let me correct that. 18 I wouldn't say we wouldn't have a right to take them. We 19 agreed not to take them, though we may have a right to take 20 them. 21 MR. BRANDT: So, looking at normal and above years, the 22 numbers there, 325, during most of the year; is that correct? 23 MR. J. HANSON: No. You are looking at the wrong 24 column. You are looking at below Camanche, the releases 25 from Camanche. I am talking about the expected flow below 3062 01 Woodbridge. 02 MR. BRANDT: Those are the flows that will go -- 03 MR. J. HANSON: Those are the flows that will go down 04 the river. 05 MR. BRANDT: Those flows will go down in any case, 06 regardless of whether they accept these as your contribution 07 or not; is that true? The flows in the column that says, 08 "Expected Flows Below Woodbridge Dam," no matter what the 09 Board does with regard to you, if East Bay MUD offers those 10 flows whether through FERC or through this proceeding, those 11 are going to go down no matter what? 12 MR. J. HANSON: I think Woodbridge would take the 13 position that to the extent that these flows are available 14 and divertable by Woodbridge, that they would exercise their 15 rights to take them. 16 MR. BRANDT: Didn't you just tell me a minute ago that 17 these would be under the 60,000? 18 MR. J. HANSON: No. These are in addition to the 19 60,000. 20 MR. BRANDT: So, this a hundred cfs is in addition to 21 the 60,000? 22 MR. J. HANSON: That is water that is in the river in 23 addition to the 60,000 that Woodbridge is guaranteed as a 24 firm supply under its contract with East Bay. Now in some 25 years there is more water than that in the river. 3063 01 MR. BRANDT: That is what you are giving up? 02 MR. J. HANSON: To the extent that we have to give up 03 some of that water in order to maintain these flows in 04 Attachment 1, we are willing to do that. 05 MR. BRANDT: Does Woodbridge have a temporary dam? 06 MR. J. HANSON: No. Well, let's put it this way: It 07 is a permanent concrete buttress flashboard structure. 08 MR. BRANDT: When are the flashboards put in every 09 year? 10 MR. J. HANSON: They are normally put in around the 1st 11 of March or the 15th. 12 MR. BRANDT: Would the permanent structure be able to 13 hold back the flows during the period the flashboards are 14 not up, would they hold back the flows, these East Bay flows? 15 MR. J. HANSON: No, because we know what the flows are 16 and we make provisions to release those flows below our 17 dam. 18 MR. BRANDT: You make provisions. In other words, 19 under your offer or you -- would you be able to physically 20 -- would you be able to hold back these flows and keep them 21 for your own use? 22 MR. J. HANSON: No. Perhaps to a certain extent we 23 could, depending on what our diversion rate is out of the 24 reservoir above the dam. 25 MR. BRANDT: So during the period when the flashboards 3064 01 aren't in, then, you are not really giving up anything; they 02 would go past your dam? 03 MR. J. HANSON: That is correct. When the flashboards 04 are out, we can't divert because the water in the lake isn't 05 high enough to get it into the canal system. 06 MR. BRANDT: Mr. Christensen, you testified about some 07 money you received from CalFed? 08 MR. CHRISTENSEN: Yes, I did. 09 MR. BRANDT: How much was that, again? 10 MR. CHRISTENSEN: The initial appropriation for the 11 $13-and-a-half-million project is in the amount 1,575,000. 12 MR. BRANDT: So, you are providing approximately 13 $12,000,000? 14 MR. CHRISTENSEN: No, we are not. At this juncture the 15 project isn't fully funded. The project's anticipated to be 16 funded -- the remainder is anticipated to be funded out of 17 CalFed. 18 MR. BRANDT: So, are you providing any cost share for 19 that CalFed money? 20 MR. CHRISTENSEN: At this juncture here we've -- in the 21 initial, we are putting together and preparing the project, 22 we probably spent close to 40 to $50,000. But the remainder 23 of the project, if it is built, will be built with CalFed 24 grant funds. 25 MR. BRANDT: So, you're providing, more or less, 40 or 3065 01 $50,000 out of 13 million? 02 MR. CHRISTENSEN: Yes. The administration of the 03 project, the costs associated with Woodbridge administrating 04 the project are part of our costs. Those are in-kind costs 05 that will go toward the project. They are not included in 06 the $13,500,000. 07 MR. BRANDT: I am not sure whether it is you or Mr. 08 Hanson. Who can provide me an estimate of how many acres 09 were under irrigation from either Mokelumne or groundwater 10 in your district in 1969 and go on to '75 and '92? Who 11 would know that? 12 MR. J. HANSON: I would know. 13 MR. CHRISTENSEN: I don't have that information. 14 MR. BRANDT: Do you know if the acreage under 15 irrigation increased during that period, from 1969 to 1992? 16 MR. CHRISTENSEN: I believe in my testimony I said 17 that, as a general trend, it decreased during that period, 18 and it's now around about 13,000 acres per year. 19 MR. BRANDT: 13,000 acres per year from the Mokelumne? 20 MR. CHRISTENSEN: As irrigated by the Woodbridge 21 Irrigation District canal system that gets its water from 22 the Mokelumne. 23 MR. BRANDT: The question I am asking is about the 24 total irrigated acreage in your district that is irrigated 25 either from Woodbridge's Mokelumne source or from 3066 01 groundwater. 02 MR. CHRISTENSEN: Mr. Hanson testified to that earlier, 03 and I will let him answer that question. 04 MR. BRANDT: Did the total amount of irrigated acreage, 05 including both from the Mokelumne and from groundwater, 06 increase or decrease between '69 and '92? 07 MR. J. HANSON: I don't have any records on that. I 08 was talking in gross numbers, generally speaking. It is a 09 fully developed agricultural area. To the extent that it 10 isn't irrigated from the Woodbridge irrigation system, it is 11 irrigated from groundwater. 12 MR. BRANDT: Was it fully developed in 1969? 13 MR. J. HANSON: Yes. 14 MR. BRANDT: Did that acreage increase or decrease? 15 MR. J. HANSON: I suspect it's probably decreased due 16 to urbanization. 17 MR. BRANDT: So, urbanization replaced anything that 18 was irrigated before? 19 MR. J. HANSON: Well, urbanization has encroached upon 20 lands that were historically irrigated before that area was 21 urbanized. That is generally taking place in the north 22 portion of the city of Stockton and western Lodi. 23 MR. BRANDT: Mr. Christensen, you were offered the 24 offer to sign on to the MOU, East Bay MUD's MOU. Is that 25 correct? 3067 01 MR. CHRISTENSEN: Woodbridge was offered an 02 opportunity to sign the POA, which was the Principles of 03 Agreement, between East Bay MUD and the resource agencies at 04 the time the FERC settlement offer was being discussed. 05 This was a long time ago. That was the first document, 06 related document. It is related to JSA, but it is not the 07 same document. 08 The agreement that East Bay MUD signed with the ag and 09 urban water users was not offered to Woodbridge. 10 MR. BRANDT: Have you asked to sign onto that 11 agreement? 12 MR. GALLERY: That agreement referring to the -- 13 MR. BRANDT: MOU. 14 MR. GALLERY: -- MOU? 15 MR. BRANDT: Right. 16 MR. CHRISTENSEN: Have we asked to sign? If I can 17 offer an explanation rather than a simple yes or no answer. 18 We haven't asked to sign on to that agreement because the 19 agreement guarantees the contribution of East Bay Municipal 20 Utility District and not any other water user on the 21 Mokelumne. 22 MR. BRANDT: Does Woodbridge, East Bay MUD and other 23 diverters from the Mokelumne, do they have a joint 24 operations committee for the Mokelumne River that meets 25 regularly? 3068 01 MR. CHRISTENSEN: I believe what you are referring to 02 is a fishery group that meets. That is Mokelumne River 03 Technical Advisory Committee that I testified to. 04 MR. BRANDT: Do your operators, people who deal with 05 the dam and the ones who deal with Camanche and Pardee, do 06 they meet regularly? 07 MR. CHRISTENSEN: East Bay MUD maintains a hydrology 08 office in Lodi, and our superintendent is virtually in daily 09 contact with their office over the operation of the river. 10 MR. BRANDT: Do other operators or other diverters from 11 a river also meet with those operators of those dams? 12 MR. CHRISTENSEN: To some extent, when North San 13 Joaquin is taking water, their water master will make some 14 similar communications with the hydrology office. 15 MR. BRANDT: It sounds like it is one-on-one; there is 16 not a regular meeting of all operators on the Mokelumne. Is 17 that correct? 18 MR. CHRISTENSEN: That is correct. East Bay MUD 19 coordinates the flows below Camanche to meet all the 20 downstream diverters' needs. 21 MR. BRANDT: Mr. Christensen, do you recall your 22 testimony that you said that the projects were largely 23 responsible and legally accountable for the Delta? 24 MR. CHRISTENSEN: Yes, I do. 25 MR. BRANDT: Can you tell me why the exporters are 3069 01 largely responsible for the water quality in the Delta? 02 MR. CHRISTENSEN: Based on the last paragraph in my 03 testimony, the responsibility for Delta water quality 04 clearly falls upon the state and federal projects. 05 MR. BRANDT: You base that conclusion on what? 06 MR. CHRISTENSEN: I based it on the Delta Protection 07 Act, Water Code 1202, 11900 and 12582 and also the 11207 08 relating to Shasta Dam. 09 MR. BRANDT: That is a legal conclusion, then? 10 MR. CHRISTENSEN: That is based on those citings that I 11 listed. 12 MR. BRANDT: Are you a lawyer? 13 MR. CHRISTENSEN: No, I am not, sir. 14 MR. BRANDT: You haven't done any studies looking at 15 whether the exports actually are responsible in a 16 hydrological or biological way for the Delta's water 17 quality, correct? 18 MR. CHRISTENSEN: That's correct. 19 MR. BRANDT: When you say they export projects are 20 legally accountable, is that also a legal conclusion? 21 MR. CHRISTENSEN: It's my opinion based on my review of 22 the Water Code, those portions of the code, but, again, I am 23 not an attorney. 24 MR. BRANDT: You haven't done any study along those 25 lines of the actual facts out in the Delta for how the 3070 01 exporters are legally responsible? 02 MR. CHRISTENSEN: No, I haven't. 03 MR. BRANDT: No more questions. 04 Thank you. 05 C.O. CAFFREY: Thank you, Mr. Brandt. 06 Mr. Birmingham. 07 ---oOo--- 08 CROSS-EXAMINATION OF WOODBRIDGE IRRIGATION DISTRICT 09 BY SAN LUIS DELTA-MENDOTA WATER AUTHORITY 10 AND WESTLANDS WATER DISTRICT 11 BY MR. BIRMINGHAM 12 MR. BIRMINGHAM: Mr. Christensen, I am Tom Birmingham. 13 I am an attorney that represents Westlands Water District 14 and the San Luis Delta-Mendota Water Authority. I won't 15 introduce myself to Mr. Hanson because we have known each 16 other for many years. 17 I have a couple questions for concerning a position of 18 Woodbridge Irrigation District. 19 Do I understand that it's Woodbridge's position that it 20 has a right to divert flows released by East Bay MUD 21 pursuant to the Joint Settle Agreement which is now in 22 evidence as Department of the Interior Exhibit 102? 23 MR. CHRISTENSEN: No, that is not correct. 24 MR. BIRMINGHAM: What is the position of the Woodbridge 25 Irrigation District concerning its right to divert flows 3071 01 released by East Bay MUD pursuant to the Joint Settlement 02 Agreement? 03 MR. CHRISTENSEN: First of all, our right to divert 04 water is based on the settlement agreement, the 1965 05 settlement agreement, basically that says that in years when 06 the inflow into Pardee is 375,000 acre-feet or greater, 07 Woodbridge will receive a minimum of 60,000 acre-feet. 08 In those years in which there is less than 375,000 09 acre-feet of inflow flowing into Pardee, Woodbridge would 10 receive 39,000 acre-feet. Woodbridge claims as part of its 11 post 1914 water rights, it has a right to divert in excess 12 of those amounts when water is available and water is being 13 spilled from Camanche. 14 C.O. CAFFREY: Mr. Birmingham, that mike that you have 15 there isn't the greatest. If you can turn it a little bit, 16 we can hear you better. 17 Thank you, sir. 18 MR. BIRMINGHAM: Am I correct that it is the basic 19 position of Woodbridge that it would be willing to bypass 20 the flows that are described as flows expected below 21 Woodbridge Dam under the Joint Settlement Agreement if the 22 State Board were to accept the Joint Settlement Agreement 23 flows as Woodbridge's contribution to implementation of the 24 1995 Water Quality Control Plan? 25 MR. CHRISTENSEN: It's our -- the Board's position is 3072 01 clearly stated in Exhibit Number 9 of Woodbridge testimony, 02 and the sum total of that is that we would not divert those 03 flows, the JSA flows. 04 MR. BIRMINGHAM: In your last answer you referred to 05 Woodbridge Exhibit Number 9. Woodbridge Exhibit Number 9 is 06 Resolution Number 98-06-01 of the Woodbridge Irrigation 07 District; is that correct? 08 MR. CHRISTENSEN: That is correct. 09 MR. BIRMINGHAM: Yesterday during Mr. Gallery's opening 10 statement, I believe I heard him say that it is Woodbridge's 11 position that the flows that will be released under the 12 Joint Settlement Agreement should constitute the entire 13 contribution of the Mokelumne River to implementation of the 14 1995 Water Quality Control Plan. 15 Do you recall him saying that in his opening statement? 16 MR. CHRISTENSEN: Yes. 17 MR. BIRMINGHAM: I am looking at Woodbridge Exhibit 18 Number 9, Resolution Number 98-06-01, and in particular 19 Section I of that resolution on Page 2; and it states that: 20 In reliance upon the regulated base water 21 supply that would continue to be provided to 22 Woodbridge Irrigation District under its 1965 23 agreement with East Bay MUD, this is to 24 confirm that providing that the Joint 25 Settlement Agreement releases, including the 3073 01 expected flow past Woodbridge Dam, are 02 acceptable to and adopted by the State Water 03 Resources Control Board as representing the 04 contribution from the Mokelumne River from 05 both East Bay MUD and the District, in 06 implementation of the Bay-Delta Water Quality 07 Control Plan, that the Woodbridge Irrigation 08 District is willing to curtail its diversions 09 at Woodbridge Irrigation Dam. (Reading.) 10 And then it goes on. Did I correctly read that? 11 MR. CHRISTENSEN: Yes. 12 MR. BIRMINGHAM: So, from the resolution, Woodbridge 13 Exhibit Number 9, it is the position of Woodbridge that the 14 JSA flows should represent the contribution of both East Bay 15 MUD and the District? 16 MR. CHRISTENSEN: That's correct. 17 MR. BIRMINGHAM: The resolution, Exhibit Number 9, 18 doesn't discuss the contribution of the entire Mokelumne 19 River, does it? 20 MR. CHRISTENSEN: No, it doesn't. 21 MR. BIRMINGHAM: There are others, there are entities 22 other than East Bay MUD and the district, that hold water 23 rights on the Mokelumne River; isn't that correct? 24 MR. CHRISTENSEN: That's correct. 25 MR. BIRMINGHAM: This resolution does not discuss the 3074 01 contribution of those other entities towards implementing 02 the 1995 Water Quality Control Plan, does it? 03 MR. CHRISTENSEN: No, it doesn't. 04 MR. BIRMINGHAM: Mr. Hanson, I would like to draw our 05 attention to Woodbridge Irrigation District Exhibit 6. 06 Woodbridge Irrigation District Exhibit 6 is a map that 07 depicts the boundaries of the district, and I believe from 08 your testimony the area that is shaded with green on Exhibit 09 6 indicates those areas that have been irrigated with water 10 within the last five years. Is that correct? 11 MR. J. HANSON: Almost. It doesn't depict the 12 boundaries of the irrigation district. It depicts the 13 general boundaries because the irrigation district is a 14 checkerboard. It depicts the general region in which the 15 irrigation district is situated. 16 The green areas are representative of those lands that 17 have been irrigated once, at least once, in the last five 18 years. 19 MR. BIRMINGHAM: That Takes me to my question. When 20 you were describing in your oral summary yesterday, you said 21 the green areas are the areas that have been irrigated at 22 least once with water from the Mokelumne River during the 23 last five years. 24 Could you please explain to me why you have chosen that 25 period of time to designate the areas irrigated with water 3075 01 from the Mokelumne River? 02 MR. J. HANSON: I don't think there was any particular 03 reason except that we do find that we have rotations out 04 there. People elect to irrigate on some of the annual 05 crops. Some people have dropped out of the system for 06 reasons of not being able to deal with the uncertainties of 07 surface supply. There is no particular reason for the five 08 years, other than it is fairly representative of the 09 irrigation patterns that exist now. 10 MR. BIRMINGHAM: Mr. Hanson, how long have you been 11 consulting engineer, advising public agencies on water right 12 matters? 13 MR. J. HANSON: Oh, probably 35, going on 40 years. 14 MR. BIRMINGHAM: You've regularly appeared before the 15 Board, the State Water Resources Control Board or its 16 predecessor, representing public agencies in its effort to 17 obtain or protect its water rights? 18 MR. J. HANSON: I have. 19 MR. BIRMINGHAM: And you are generally familiar with 20 the laws as it pertains to water rights as a result of that 21 experience; isn't that right? 22 MR. J. HANSON: I'm generally familiar, yes. 23 MR. BIRMINGHAM: Isn't it correct that if a water right 24 is not an appropriative water right, is not exercised at 25 least once every five years, that the water right is deemed 3076 01 abandoned? 02 MR. J. HANSON: I don't think it would be abandoned 03 without or forfeited without a hearing. 04 MR. BIRMINGHAM: Mr. Hanson, you have just kindly 05 placed on or had placed on the overhead projector a copy of 06 Woodbridge Exhibit 8. 07 MR. J. HANSON: That's correct. 08 MR. BIRMINGHAM: Would you please tell us again what is 09 Woodbridge Irrigation District Exhibit 8? 10 MR. J. HANSON: Woodbridge Irrigation District Exhibit 11 8 is a bar graph depicting the annual diversions by the 12 Woodbridge Irrigation District from 1926 through 1997. 13 MR. BIRMINGHAM: Now, there are -- on Woodbridge 14 Exhibit 8, on the left-hand side of the exhibit, there are a 15 number of dates that are indicated above the bars; is that 16 correct? 17 MR. J. HANSON: That's correct. 18 MR. BIRMINGHAM: Could you please tell me what those 19 bars indicate. 20 MR. J. HANSON: The bars or the -- 21 MR. BIRMINGHAM: Excuse me, the dates. I beg your 22 pardon. 23 MR. J. HANSON: The dates. The first date is the date 24 -- I think it is the date that the permits issued on 25 application -- I can't read the number. 3077 01 MR. BIRMINGHAM: Is it correct, Mr. Hanson, that the 02 first date is January 11, 1928, and it states: 03 Canal and water rights acquired by WID. 04 (Reading.) 05 MR. J. HANSON: That's correct. 06 MR. BIRMINGHAM: What does that indicate, that notation? 07 MR. J. HANSON: That is the date that the system was 08 purchased from the Stockton Mokelumne Canal Company. 09 MR. BIRMINGHAM: The next date appears to be 1932. It 10 states: 11 Permit 3190 (A-5807) 300 cfs. (Reading.) 12 Is that correct? 13 MR. J. HANSON: That's correct. 14 MR. BIRMINGHAM: Does that indicate in 1932 Woodbridge 15 Irrigation District obtained a permit based on Application 16 5807 to appropriate 300 cubic feet per second from the 17 Mokelumne River? 18 MR. J. HANSON: That's correct. 19 MR. BIRMINGHAM: Did Permit 3190 describe a season in 20 which that water could be appropriated? 21 MR. J. HANSON: I would have to look at the application 22 to refresh my memory on that. That is the standard term in 23 the applications. 24 MR. BIRMINGHAM: Did it contain the maximum rate of 25 diversion? 3078 01 MR. J. HANSON: I believe it did. 02 MR. BIRMINGHAM: Do you know what that maximum rate of 03 diversion was? 04 MR. J. HANSON: No, I don't. I don't have it in front 05 of me. I can't recall with certainty. 06 MR. BIRMINGHAM: The next line appearing above a bar on 07 Woodbridge Exhibit 8 states: 08 Permit 6931 (A 10240) 114.4 cubic feet per 09 second. (Reading.) 10 Does that indicate that Woodbridge Irrigation District 11 obtained in 1941 a permit to appropriate a 114.4 cubic feet 12 per second from the Mokelumne River? 13 MR. J. HANSON: No. Means that Woodbridge Water Users 14 Conservation District obtained a permit. That was a 15 separate district from the Woodbridge District. They 16 obtained a permit, that permit, after Woodbridge Irrigation 17 District's application for the 300 second feet. 18 MR. BIRMINGHAM: Did Woodbridge Irrigation District 19 subsequently obtain a right to the water which is 20 appropriated under Permit 6931? 21 MR. J. HANSON: Those rights, under both permits, were 22 cross-assigned between the two districts around the time 23 that the '65 agreement was entered, the '65 agreement with 24 the East Bay MUD. So, cross-assigned them. They were later 25 acquired by Woodbridge Irrigation District when the 3079 01 districts merged. I don't recall the exact date, but it's 02 just been a few years ago. 03 MR. BIRMINGHAM: Mr. Hanson, can you tell me the total 04 number of acre-feet which Woodbridge Irrigation District is 05 entitled to appropriate from the Mokelumne River pursuant to 06 its pre-1914 rights and its post-1914 appropriative rights? 07 MR. J. HANSON: Those rights have never been 08 quantified. They're specified as a maximum rate of 09 diversion. 10 Let me clarify that. They have been quantified insofar 11 as the water rights settlement agreements between Woodbridge 12 District and East Bay Municipal, both in the 1938 agreement 13 and subsequently in the 1965. The rights were quantified to 14 the extent of the yield of Woodbridge's rights, the firm 15 yield portion of those rights. The remainder was never 16 quantified. But it was understood that to the extent there 17 was water in the river in excess of the permit regulated 18 base supply or the amounts set forth in those agreements, 19 that that was water Woodbridge was able to take in addition 20 to the contract amounts under priority of its licenses. 21 MR. BIRMINGHAM: Looking at Woodbridge Exhibit 8, for 22 the period since 1988, the maximum number of acre-feet which 23 has been diverted by Woodbridge from the Mokelumne River is 24 75,855 acre-feet; is that right? 25 MR. J. HANSON: Did you say since? 3080 01 MR. BIRMINGHAM: Since '88 the maximum number of 02 acre-feet diverted by Woodbridge from the Mokelumne River is 03 75,855 acre-feet. 04 MR. J. HANSON: That is not correct. 75,855 is the 05 lower limit of the interim supply when subject to the 35 06 percent efficiency. The maximum amount is probably closer 07 to -- I may even have that number. I don't. It's probably 08 closer to 80,000. 09 MR. BIRMINGHAM: I understood that what was depicted on 10 Exhibit 8 were actual diversions from the Mokelumne River. 11 Am I mistaken? 12 MR. J. HANSON: No. 13 MR. BIRMINGHAM: In what years since 1988 has the 14 district diverted more than 75,885 acre-feet? 15 MR. J. HANSON: They haven't. The year 1994 was the 16 lowest year following that maximum amount, and that was a 17 year in which the 60,000 acre-feet was enforced and the 35 18 percent deficiency was applied because of the fact that the 19 flows into the Mokelumne -- inflow to Pardee was less than 20 375,000. Following that, they have not. I suspect that 21 this year they probably will. 22 MR. BIRMINGHAM: So if I understand it correctly, the 23 right of the district to divert water under its 24 appropriative water rights has been limited by the 1965 25 agreement with East Bay MUD? 3081 01 MR. J. HANSON: No. The rights with East Bay MUD 02 agreement only deal with the firm portion of Woodbridge's 03 rights, the yield of their rights, that is as against the 04 rights of East Bay. The provision that -- to the extent 05 additional waters are available in the Mokelumne River as a 06 result of spills or releases by East Bay which pass on down 07 past Woodbridge, that is water which Woodbridge asserts the 08 right to divert in excess of the 60,000 under the priority 09 of the licenses. 10 MR. BIRMINGHAM: Yesterday during your testimony you 11 had an overhead of a summary of your testimony. Do you 12 still have that? 13 MR. J. HANSON: Yes. 14 MR. BIRMINGHAM: Can we but that up, please. 15 The first bullet on the summary, which was not marked 16 for identification as an exhibit, concludes by saying: 17 It has diverted more than 60,000 acre-feet in 18 some years when the water is available at 19 Woodbridge Dam in excess of downstream 20 requirements. (Reading.) 21 Is that correct? 22 MR. J. HANSON: That is what it says. 23 MR. BIRMINGHAM: What did you mean by "in excess of 24 downstream requirements"? 25 MR. J. HANSON: East Bay, as a result of its Camanche 3082 01 Dam project, entered into the 1961 Agreement with Fish and 02 Game for the release of certain amounts of water for 03 fishery. And to the extent that those flows are required to 04 pass Woodbridge, under that agreement, Woodbridge recognizes 05 that and respects it and passes those flows on down the 06 river. 07 MR. BIRMINGHAM: Would the same thing apply to the 08 flows that are established under the Joint Settlement 09 Agreement, DOI Exhibit 102? 10 MR. J. HANSON: I think I testified that provided the 11 JOA is adopted as the contribution of the Mokelumne River to 12 the Delta, that Woodbridge has agreed to respect those 13 minimums or respect minimum flows set forth in the East Bay 14 MUD JOA. 15 MR. BIRMINGHAM: Attached to the Joint Settlement 16 Agreement, Department of Interior Exhibit 102, is a schedule 17 of flow releases; is that correct, Mr. Hanson? 18 MR. J. HANSON: That is correct. 19 MR. BIRMINGHAM: And if I understood your last answer, 20 what you are saying is that Woodbridge would agree to bypass 21 the flows that are described as expected flow below 22 Woodbridge Dam if the State Board were to adopt these flows 23 as the contribution of East Bay MUD and the district. Is 24 that correct? 25 MR. J. HANSON: Yes. Let me explain this so that it is 3083 01 abundantly clear. Under the '61 Agreement certain flows 02 were available at Woodbridge which they could take and 03 assert the right to take under the priority of their 04 licenses. There are certain years now under the JOA that 05 those flows will not be available. Those are the flows that 06 Woodbridge is giving up. 07 To the extent that these flows that are set forth in 08 the JOA are at Woodbridge, Woodbridge agrees not to 09 interfere with those flows, in addition to giving up the 10 amounts that they would have otherwise gotten under the 1961 11 Agreement. 12 MR. BIRMINGHAM: Is it your understanding that if East 13 Bay MUD were not obligated to make the releases contained in 14 Department of the Interior Exhibit 102, in order to comply 15 with conditions imposed by the Federal Energy Regulatory 16 Commission or this State Board, in connection with this 17 proceeding, that East Bay MUD would put water in excess of 18 the 1961 flows to beneficial use within its service area? 19 MR. J. HANSON: I think I understood your question. 20 But just to be abundantly clear, would you repeat or 21 rephrase it so I can clear it up. 22 MR. BIRMINGHAM: Let me see if I can break it up into a 23 couple of questions. 24 You have indicated that there is a 1961 Agreement 25 between the Department of Fish and Game and East Bay MUD; is 3084 01 that correct? 02 MR. J. HANSON: That's correct. 03 MR. BIRMINGHAM: That established minimum flows in the 04 Mokelumne River below East Bay MUD facilities? 05 MR. J. HANSON: It established flows that East Bay was 06 obligated to supply to the Mokelumne in satisfaction for 07 fishery. 08 MR. BIRMINGHAM: So probably a more accurate statement 09 was that it required the release of specified quantities of 10 water from East Bay MUD facilities on the Mokelumne? 11 MR. J. HANSON: That is my understanding of the 12 agreement. 13 MR. BIRMINGHAM: Now, the Joint Settlement Agreement, 14 Department of Interior Exhibit 102 requires that East Bay 15 MUD release water into Mokelumne in excess of the releases 16 required by the 1961 Agreement; is that correct? 17 MR. J. HANSON: I am not clear whether that is -- 18 whether it is in addition to or whether it is just the flow 19 amounts. 20 MR. BIRMINGHAM: The flows that are required under the 21 Department of Interior Exhibit 102 are greater than the 22 flows required under the 1961 Agreement? 23 MR. J. HANSON: That is correct. 24 MR. BIRMINGHAM: Is it your understanding that if East 25 Bay MUD were not increasing releases to comply with 3085 01 Department of Interior Exhibit 102, it would appropriate for 02 beneficial use within its service area the difference 03 between the flows required by the Joint Settlement Agreement 04 and the flows required by the 1961 Agreement? 05 MR. J. HANSON: I don't know what East Bay MUD would 06 do. I have no knowledge of what they might do. 07 MR. BIRMINGHAM: Have you reviewed their testimony? 08 MR. J. HANSON: No. 09 MR. BIRMINGHAM: Again, Mr. Hanson, referring to your 10 experience as a representative in matters before the State 11 Water Resources Control Board, are you familiar with the 12 provisions of Water Code Section 1707? 13 MR. J. HANSON: I may be. I have to look at it to 14 refresh my memory. 15 MR. BIRMINGHAM: Are you familiar with the provision of 16 the Water Code that authorizes or allows for a water right 17 holder, for a legal user of water, to petition the State 18 Water Resources Control Board to change a purpose of use, to 19 dedicate the water to fish and wildlife enhancement? 20 MR. J. HANSON: I'm generally familiar with it. I 21 haven't had a chance to really think about it in serious 22 detail. 23 MR. BIRMINGHAM: Mr. Christensen, I have a few more 24 questions for you, and if Mr. Hanson is the person that 25 should answer these questions, I would welcome his jumping 3086 01 in. 02 I believe you testified in response to a question this 03 morning by Mr. Brandt that on average approximately 13,000 04 acres are irrigated with water from the Mokelumne River each 05 year? 06 MR. CHRISTENSEN: That is correct. 07 MR. BIRMINGHAM: I would like to go back to your 08 testimony, Woodbridge Exhibit Number 1. In looking at Page 09 2, it states that Woodbridge diverts water from the 10 Mokelumne River at Woodbridge Dam to provide agricultural 11 irrigation water to approximately 21,400 acres. Is that 12 correct? 13 MR. CHRISTENSEN: That is correct; that is what it says. 14 MR. BIRMINGHAM: But it's correct based on the 15 testimony that you have provided this morning that on an 16 annual basis the average number of acres that are irrigated 17 with water from Woodbridge Irrigation District are 18 approximately 13,000 acres? 19 MR. CHRISTENSEN: That is correct. 20 MR. BIRMINGHAM: I would like to focus on the 21 district's firm supply under the 1965 Agreement. The firm 22 supply is approximately 60,000 acre-feet; is that correct? 23 MR. CHRISTENSEN: That is correct, depending on the 24 inflow into Pardee. 25 MR. BIRMINGHAM: If inflow into Pardee is in excess of 3087 01 375,000 acre-feet, then the district is entitled to take a 02 firm supply at Woodbridge Irrigation District's dam at 03 60,000 acre-feet. 04 MR. CHRISTENSEN: At a minimum of 60,000 acre-feet. 05 MR. BIRMINGHAM: I am going to ask you to assume for 06 purposes of my question that the district diverts 07 approximately 60,000 acre-feet at its diversion dam. Now, 08 if I understand Mr. Hanson's testimony correctly, the 09 seepage is approximately 15,000 to 18,000 feet annually? 10 MR. CHRISTENSEN: He did testify to that it was 11 approximately that, yes. 12 MR. BIRMINGHAM: That means that approximately 45,000 13 acre-feet are actually applied to land within the district 14 for irrigation purposes? 15 MR. CHRISTENSEN: Could you repeat that, please. 16 MR. BIRMINGHAM: Let's assume hypothetically that 17 15,000 acre-feet seeps into the ground during transmission 18 through the district's canal or ditches. That would mean 19 that 45,000 acre-feet was left to apply as irrigation water 20 on the lands within the district. 21 MR. GALLERY: I want to enter an objection to the 22 assumption there that overlooks some subtractions that Mr. 23 Hanson testified to with respect to the 50 percent rule 24 under the East Bay MUD contract. 25 MR. BIRMINGHAM: Let me lay some additional 3088 01 foundational questions. 02 C.O. CAFFREY: Go ahead, Mr. Birmingham. 03 MR. BIRMINGHAM: Mr. Hanson, you've indicated that, 04 under the 1965 contract with East Bay MUD, Woodbridge is 05 required to divert 50 percent of 60,000 acre-feet prior to 06 July 1? 07 MR. J. HANSON: That's correct. 08 MR. BIRMINGHAM: The 60,000, then, is required to 09 divert half of 60,000 acre-feet after July 1? 10 MR. J. HANSON: It is not required to divert half of 11 it, but it gets to divert what is left over. To the extent 12 that Woodbridge diverts less than the -- or more than the 13 30,000 before July 1, they are required to take at least 14 that amount. 15 MR. BIRMINGHAM: If it diverts 60,000 acre-feet in any 16 given year and seepage is 15,000 acre-feet, then the amount 17 remaining for application to lands to be irrigated with the 18 water is 45,000 acre-feet; is that correct? 19 MR. J. HANSON: If your mathematics is correct, if 20 there is 60,000 and you subtract 15,000, there is 45,000 21 left. 22 MR. BIRMINGHAM: So there would be 45,000 acre-feet 23 remaining for application as irrigation water? 24 MR. J. HANSON: That's correct. I also stated that it 25 ranged from 15 to 18,000. 3089 01 MR. BIRMINGHAM: For purposes of my hypothetical, we 02 will use the lower number. Because it's correct, isn't it, 03 Mr. Hanson, that when you are diverting less water from the 04 Mokelumne River, you will have less seepage? Does that make 05 sense? 06 MR. J. HANSON: No, it really doesn't. Because the way 07 the system is operated, that is very flat. We have a 08 hundred miles of canal system, so you can't just turn them 09 off and on. So those canals are charged up, and for the 10 most part, except in years when it's extremely dry and they 11 actually dry up certain sections of the system. I would say 12 that the seepage probably isn't affected drastically by the 13 -- if at all, by any change in the total delivery. 14 MR. BIRMINGHAM: Well, if there are 45,000 acre-feet 15 because 15,000 acre-feet is percolated into the ground, then 16 does that mean that there is in excess of 4 acre-feet of 17 water being applied to the average 13,000 acre-feet 18 irrigated within the district with water appropriated from 19 the Mokelumne? 20 MR. J. HANSON: There is -- your mathematics would be 21 correct. There are terminal spills, nominal terminal 22 spills. The district has a zero spill policy. It is 23 impossible to operate a system such as this without terminal 24 spills. So, you'd have, I would say, a 5 percent terminal 25 spill out the end, so you would have a further reduction as 3090 01 to what is actually applied. 02 C.O. CAFFREY: Mr. Birmingham, excuse me. Mr. Brown 03 has a question. 04 MEMBER BROWN: Maybe my math was wrong, but I 05 calculated it out to be .46 acre-feet per year, for the 06 record. 07 MR. BIRMINGHAM: Thank you. 08 MR. J. HANSON: I hadn't done the calculation. I 09 didn't look at it, Tom. I took your word for it. I'll 10 never trust a lawyer again. 11 C.O. CAFFREY: That is just to let you know that the 12 engineer members of the Board are listening very closely. 13 MR. BIRMINGHAM: Now you know why I am a lawyer as 14 opposed to a mathematician. 15 MEMBER DEL PIERO: It's okay. Go ahead. 16 MR. BIRMINGHAM: Is it your understanding, Mr. Hanson, 17 that the groundwater recharge is a beneficial use of water 18 in the State of California? 19 MR. J. HANSON: That's my understanding. 20 MR. BIRMINGHAM: You can actually -- an entity can 21 actually obtain a permit that authorizes an appropriation of 22 water for the recharge of groundwater? 23 MR. J. HANSON: That is my understanding. 24 MR. BIRMINGHAM: The permits that Woodbridge Irrigation 25 District has, do they authorize the use of water for 3091 01 recharge of groundwater basin? 02 MR. J. HANSON: Yes. It is not spelled out in the 03 permits, but it is an incidental result of their operation. 04 And under the pre-'14 rights, those rights were used for 05 groundwater recharge to the same extent that historically 06 the water diverted under permits was. 07 MR. BIRMINGHAM: Does Woodbridge regularly file 08 reports of diversion with the State Water Resources Control 09 Board? 10 MR. CHRISTENSEN: Yes, we do. 11 MR. BIRMINGHAM: Does Woodbridge report that it has 12 diverted water under its 1914, pre-1914 appropriative right? 13 MR. J. HANSON: I think Woodbridge's water right 14 reports, licensee, report the total diversion, both under 15 the license and to the extent that there is water, just 16 inclusive. 17 MR. BIRMINGHAM: Does the district distinguish between 18 water appropriated under its pre-'14 right and water 19 appropriated under its post-'14 permits? 20 MR. J. HANSON: No. 21 MR. BIRMINGHAM: Mr. Christensen, you indicated that 22 currently the district is engaged in a project to improve 23 fish passage at Woodbridge Irrigation Dam; is that correct? 24 MR. CHRISTENSEN: Yes. 25 MR. BIRMINGHAM: How many diversions are operated off 3092 01 of Mokelumne River by the Woodbridge Irrigation District? 02 MR. CHRISTENSEN: Only one. 03 MR. BIRMINGHAM: Is that diversion screened? 04 MR. CHRISTENSEN: Yes, it is. 05 MR. BIRMINGHAM: When was it screened? 06 MR. CHRISTENSEN: I believe it was screened in 07 approximately 1966 or '67. 08 MR. BIRMINGHAM: I have no further questions. 09 C.O. CAFFREY: Thank you, Mr. Birmingham. 10 It's probably a good time to take our morning break. 11 Let's be back about 10:30. 12 (Break taken.) 13 C.O. CAFFREY: Back on the record. 14 Welcome back, and, Mr. Etheridge, I think it is your 15 turn to cross-examine. 16 MR. ETHERIDGE: Thank you, Mr. Caffrey. 17 ---oOo--- 18 CROSS-EXAMINATION OF WOODBRIDGE IRRIGATION DISTRICT 19 BY EAST BAY MUNICIPAL UTILITY DISTRICT 20 BY MR. ETHERIDGE 21 MR. ETHERIDGE: Morning, Woodbridge panel. I, too, 22 will try to stay away from mathematical questions. I just 23 have a few questions. I will start with Mr. Christensen. 24 You testified that Woodbridge Irrigation District is 25 sponsoring a Lower Mokelumne Program; is that correct? 3093 01 MR. CHRISTENSEN: Yes, I do. 02 MR. ETHERIDGE: Do other entities support that project? 03 MR. CHRISTENSEN: Yes, they do. 04 MR. ETHERIDGE: Is one of those entities the East Bay 05 Municipal Utility District? 06 MR. CHRISTENSEN: Yes. 07 MR. ETHERIDGE: What are elements of that program? 08 MR. CHRISTENSEN: The elements of the program, specific 09 elements of the program are a new fish passage facility at 10 Woodbridge Dam, screening of -- canal screening of 11 Woodbridge Irrigation District's facility, which is already 12 screened, but a new state of the art screen is contemplated 13 for that. Also, screening for the diversion of North San 14 Joaquin and providing screening for 58 upstream diversions. 15 In addition to that, s gravel restoration program is 16 envisioned and a riparian habitat improvement program is 17 also envisioned. 18 MR. ETHERIDGE: These are in addition to the programs 19 outlined by Mr. Vogel of East Bay Municipal Utility 20 District? 21 MR. CHRISTENSEN: They are in addition to the current 22 gravel restoration program that has been ongoing by East Bay 23 MUD and a riparian program that, I believe, East Bay MUD is 24 also working on. 25 MR. ETHERIDGE: Thank you. 3094 01 Do you by chance remember a May 1996 letter from East 02 Bay MUD in Woodbridge Irrigation District in which EB MUD 03 offered Woodbridge to join in an agreement between East Bay 04 MUD and various project exporters regarding Bay-Delta 05 purposes? 06 MR. CHRISTENSEN: I am sorry, I don't. 07 MR. ETHERIDGE: I now have a few questions for Mr. 08 Hanson. 09 Mr. Hanson, it is your understanding that East Bay MUD 10 releases water from Camanche Dam for a variety of purposes, 11 including releases for the Woodbridge Irrigation District 12 senior downstream appropriators, channel losses and fishery 13 and ecosystem purposes? 14 MR. J. HANSON: That is my understanding. 15 MR. ETHERIDGE: So, if you were to look only at what 16 you refer to as the JSA flow schedule, that sets the minimum 17 releases from Camanche Dam to the Lower Mokelumne River only 18 for fishery and ecosystem purposes? 19 MR. J. HANSON: That's correct. 20 MR. ETHERIDGE: Are there flood flow releases that 21 remain from the Camanche Dam to the Lower Mokelumne River? 22 MR. J. HANSON: Frequently. 23 MR. ETHERIDGE: In fact, they were made in the winter 24 of 1997 and '98, weren't they? 25 MR. J. HANSON: They sure were. That was on 348 when 3095 01 there was about an inch from the top of the levee. 02 MR. ETHERIDGE: In fact, the flood flow releases made 03 in the winter of 1997 and '98 from Camanche Dam to Lower 04 Mokelumne River exceeded 3,000 cfs; is that correct? 05 MR. J. HANSON: That's correct. 06 MR. ETHERIDGE: The flood flow releases in the winter 07 of 1996 and '97 from Camanche Dam to the Lower Mokelumne 08 River exceeded or reached 5,000 cfs; is that correct? 09 MR. J. HANSON: I believe there was a brief period when 10 there was a 5,000 release. 11 MR. ETHERIDGE: In fact, the flood flows constitute a 12 fairly -- can constitute a fairly significant extra quantity 13 in the river? 14 MR. J. HANSON: That's correct. 15 MR. ETHERIDGE: And that those vary from year to year? 16 MR. J. HANSON: Yes. 17 MR. ETHERIDGE: So, to get an accurate picture of how 18 much water is actually in the Lower Mokelumne River below 19 Camanche Dam you cannot look solely at what you term the JSA 20 flow schedule, but you need to look at other releases as 21 well? 22 MR. J. HANSON: That's correct. 23 MR. ETHERIDGE: Just to clarify, Woodbridge has a 1965 24 agreement with East Bay MUD; is that correct? 25 MR. J. HANSON: That's correct. 3096 01 MR. ETHERIDGE: That agreement requires East Bay MUD to 02 release up to 60,000 acre-feet of water to Woodbridge, 03 except in dry years that amount drops to 39,000 acre-feet? 04 MR. J. HANSON: That's correct. 05 MR. ETHERIDGE: That contract amount is 60/39,000 06 acre-feet, is what Woodbridge calls its regulated base 07 supply; is that correct? 08 MR. J. HANSON: The 60,000 is regulated base amount. 09 That's correct. 10 MR. ETHERIDGE: And that regulated base supply is the 11 maximum EBMUD is now required to release to Woodbridge; is 12 that correct? 13 MR. J. HANSON: That is correct. 14 MR. ETHERIDGE: But that Woodbridge believes it has 15 appropriative rights to divert in excess of 60,000 acre-feet 16 if that extra water happens to be in the lower Mokelumne 17 River; is that correct? 18 MR. J. HANSON: Woodbridge asserts that right; that's 19 correct. 20 MR. ETHERIDGE: Is it true that there would need to be 21 a lot of water in the Lower Mokelumne River, such as the 22 flood flow releases in this current year, in order for 23 Woodbridge to take in excess of its 60,000 acre-feet 24 regulated base supply? 25 MR. J. HANSON: Not necessarily. There could be 3097 01 considerably less than those flows that you mentioned in the 02 summer months, in the late summer months, when East Bay is 03 evacuating Camanche to achieve its flood storage space going 04 into the winter months. 05 MR. ETHERIDGE: But there would need to be, I will call 06 it, a fair amount of water in the Lower Mokelumne River in 07 order for Woodbridge to exercise its claimed right of taking 08 in excess of 60,000 acre-feet? 09 MR. J. HANSON: Well, it would have to be water in 10 excess of the JSA flows and the other required releases 11 below Woodbridge. 12 MR. ETHERIDGE: Thank you. I just have one last 13 question. 14 Isn't it true that the agreements between EBMUD and 15 Woodbridge Irrigation District serve to recognize the 16 relative priorities of the various EBMUD and Woodbridge 17 Irrigation District water rights? 18 MR. J. HANSON: Would you say it again. 19 MR. ETHERIDGE: Isn't it true that the agreements 20 between EBMUD and Woodbridge serve to recognize the relative 21 priorities of the various EBMUD and Woodbridge water rights? 22 MR. J. HANSON: Well, they serve to set forth the, one, 23 the yield of Woodbridge's rights that are senior to East Bay 24 and also the yield of its junior rights as against the 25 superior rights of East Bay. 3098 01 MR. ETHERIDGE: That is all I have. 02 Thank you very much. 03 C.O. CAFFREY: Thank you, Mr. Etheridge. 04 Is Mr. Jackson here? He was next. I saw him here 05 earlier when we came back from the break. 06 MR. J. HANSON: Maybe we answered all his questions. 07 MR. MADDOW: Mr. Chairman, I did not raise my hand 08 when it was time to indicate interest in cross-examining. 09 But I just have about two follow-up questions based on the 10 exchange between Mr. Brandt and Mr. Hanson that I would 11 appreciate an opportunity to ask if -- 12 C.O. CAFFREY: Why don't you do that while Mr. Jackson 13 is gathering his materials. 14 MR. MADDOW: In just a moment, Mr. Jackson? 15 MR. JACKSON: That is fine. 16 MR. MADDOW: Thank you very much. 17 C.O. CAFFREY: We didn't want to leave you out, Mr. 18 Jackson. 19 MR. JACKSON: Thank you, sir, I appreciate that. 20 C.O. CAFFREY: You're very welcome. He has a couple of 21 questions here, and then you will be on. 22 Go ahead, Mr. Maddow. 23 ---oOo--- 24 // 25 // 3099 01 CROSS-EXAMINATION OF WOODBRIDGE IRRIGATION DISTRICT 02 BY CONTRA COSTA WATER DISTRICT 03 BY MR. MADDOW 04 MR. MADDOW: Thank you, Mr. Chairman, Members of the 05 Board. 06 I am Robert Maddow, appearing for the Contra Costa 07 Water District. 08 Mr. Hanson, I have just a couple of questions in a 09 follow-up to your exchange with Mr. Brandt, the Department 10 of the Interior attorney this morning. 11 As I understood your testimony, the Woodbridge 12 Irrigation District will, in effect, refrain from some 13 diversions it might otherwise make if making those 14 diversions would result in the flows expected to go past 15 Woodbridge, which are reflected in the JSA, the East Bay MUD 16 JSA, if those flows which are expected to go past Woodbridge 17 would go below the schedule; is that correct? 18 MR. J. HANSON: That's correct. 19 MR. MADDOW: So, in other words, the Woodbridge 20 Irrigation District resolution to which I believe Mr. 21 Christensen testified, in effect, is Woodbridge taking a 22 step which has the effect of guaranteeing those minimum 23 flows; is that a fair way to put it? 24 MR. J. HANSON: I want to reiterate again, so that it 25 is abundantly clear, that the amounts of water which 3100 01 Woodbridge has indicated that it is foregoing are the 02 amounts that were available under the 1961 Agreement and 03 surplus to the fish requirements and water which Woodbridge 04 would take under the priority of its licenses, which are no 05 longer available under the JSA. That is one element of it. 06 The other element is that Woodbridge has warrants that 07 it will forego in diverting water from or under -- that is 08 released pursuant to the JSA which would interfere with 09 those expected flows below Woodbridge. 10 MR. MADDOW: Let me take the risk here and ask a third 11 question. I didn't go to Stanford, so I am not going to ask 12 a mathematics question, but I want to understand how this is 13 going to work practically, Mr. Hanson. 14 Is it correct that the way in which you will determine 15 exactly how Woodbridge is going to operate, based upon the 16 resolution which Mr. Christensen has described is to look to 17 see whether the scheduled JSA flows are in the river below 18 Woodbridge? 19 MR. J. HANSON: That is correct. There is in the 20 U.S. Geological Survey station immediately below Woodbridge, 21 and that station is read every morning by Woodbridge 22 Irrigation District. 23 MR. MADDOW: That will be your true trigger to whether 24 or not you then have some action to take or not take as a 25 result of the Board of Directors resolution that is now a 3101 01 part of the record? 02 MR. J. HANSON: That is correct. 03 MR. MADDOW: Thank you very much. 04 C.O. CAFFREY: Thank you, Mr. Maddow. 05 Mr. Jackson. 06 ---oOo--- 07 CROSS-EXAMINATION OF WOODBRIDGE IRRIGATION DISTRICT 08 BY REGIONAL COUNCIL OF RURAL COUNTIES 09 BY MR. JACKSON 10 MR. JACKSON: Mr. Hanson, I would like to talk a 11 little, ask you some questions about the maps that you have 12 behind you. 13 How long have you been measuring the groundwater levels 14 underneath the Woodbridge Irrigation District? 15 MR. J. HANSON: I haven't. I obtained the data from 16 various sources; East Bay was a source at one time. San 17 Joaquin County has been a source. 18 C.O. CAFFREY: Excuse me, I am sorry for interrupting. 19 I thought you were done. 20 MR. J. HANSON: It's okay. 21 C.O. CAFFREY: We, probably for the record, ought to 22 identify what we mean by "the maps." Maybe Mr. Hanson could 23 just read exhibit numbers on those three maps. 24 MR. J. HANSON: The maps showing Woodbridge Irrigation 25 District and the land, irrigated lands, canal system, et 3102 01 cetera, is Exhibit Number 6. The two groundwater change 02 maps that are shown on the Board in color are Exhibits 13 03 and 14. 04 C.O CAFFREY: Thank you, sir. 05 MR. JACKSON: Calling your attention to Exhibits 13 06 and 14, in your opinion, do they show a long-term decline in 07 groundwater levels in the areas served by the Woodbridge 08 Irrigation District? 09 MR. J. HANSON: Yes. They show lines of equal change 10 between the two periods that are represented by those maps. 11 The first exhibit, Number 13, is the period 1960 to '75, and 12 the contours and the shading depict areas of either 13 groundwater decline over that period, as shown in red, or a 14 general rise in the certain areas shown in the blue shades. 15 MR. JACKSON: Where on, let's say, Exhibit 13 does the 16 Mokelumne River lie between -- is it in the red sections or 17 the pink sections, or is it in the blue sections? 18 MR. J. HANSON: On Exhibit 13 the Mokelumne River is 19 generally -- Lodi Lake is in this general area and the 20 Mokelumne River traverses to the north and northwest and 21 around, what we call, the Thornton pocket down until it 22 joins the South Fork, splits in the South and North Fork, 23 which is further on downstream. 24 MR. JACKSON: So, the Mokelumne River essentially runs 25 mostly through the section in which groundwater levels are 3103 01 rising? 02 MR. J. HANSON: It is running generally through north 03 of the section that groundwater, during the period 1960-75, 04 show the general increase in groundwater levels, a change in 05 groundwater levels for the positive. In other words, the 06 blue area represents a positive change. 07 MR. J. HANSON: Calling your attention to the red areas 08 south of Mokelumne River that are within the Woodbridge 09 District, those are the areas furthest from the Mokelumne 10 River; is that correct? 11 MR. J. HANSON: Well, that is true. The Mokelumne 12 River would come down through just north of the city of 13 Lodi. Let's see if I can get you a better -- generally runs 14 east from a point here, general, right across here. 15 The other thing that contributes this blue up here and 16 probably helps some of the groundwaters is that the 17 district's north main canal, which is a significant 18 conveyance system, and its lateral supply water through this 19 entire area. 20 MR. JACKSON: Then is it distinctly possible that the 21 area in blue, which shows rising groundwater levels, is 22 being fed by your seepage? 23 MR. J. HANSON: It does benefit from whatever canal 24 losses there are and also return flows from irrigation 25 applications in that area. 3104 01 MR. JACKSON: Now, is the Woodbridge Irrigation 02 District located in the Sacramento-San Joaquin Basin? 03 MR. J. HANSON: I suspect that it is. It is also 04 partially located in the legal Delta. 05 MR. JACKSON: To your knowledge, is the place of use of 06 the East Bay Utility District water rights in the 07 Sacramento-San Joaquin Basin? 08 MR. J. HANSON: No, they aren't. 09 MR. JACKSON: So, in the case of the Woodbridge 10 Irrigation District, if your canals leak, it goes back into 11 the groundwater underneath the Sacramento-San Joaquin Basin? 12 MR. J. HANSON: That is correct. Or any canal seepage 13 accrues to the benefit of the area within what we call 14 Woodbridge area complex as well as deep percolation of 15 applied water from the Mokelumne River. 16 MR. JACKSON: In the case of the East Bay Municipal 17 Utility District leakage in their system, would the water 18 return to the Sacramento-San Joaquin Basin from their place 19 of use? 20 MR. J. HANSON: Well, a system, that could be their 21 reservoirs, and whatever they lose out of there certainly 22 accrues back to the basin. 23 MR. JACKSON: In terms of their place of use for the 24 areas in the Oakland-Berkeley area, would that return to the 25 basin? 3105 01 MR. J. HANSON: No, I don't believe it would. 02 MR. JACKSON: So, that would be lost to the sea? 03 MR. J. HANSON: I am not sure where it goes, but that 04 is probably where it ends up. 05 MR. JACKSON: Now, calling your attention to the area 06 in red, is that area where the water levels are declining, 07 does it underlie the San Joaquin system? 08 MR. J. HANSON: Underlie? I don't think -- 09 MR. JACKSON: Does the San Joaquin River run through 10 that area? 11 MR. J. HANSON: No, it doesn't. 12 MR. JACKSON: Are there any other surface streams which 13 traverse the areas that is in red or pink? 14 MR. J. HANSON: Only ephemeral streams such as Bear 15 Creek, Bixley Slough and some of the minor tributaries in 16 the -- coming off of the foothills come through this area. 17 MR. JACKSON: I would like to call your attention to 18 your testimony on Page 7 in the third paragraph. I would 19 like to ask some questions about that and the first 20 paragraph on Page 7. 21 MR. J. HANSON: Okay. 22 MR. JACKSON: First, the third paragraph, in this 23 paragraph you talk about an overdrafted groundwater supply. 24 What do you mean by "overdrafted"? 25 MR. J. HANSON: Very simply put, that is that the use 3106 01 of water and the consumption of water and the loss of water 02 from that area exceeds the supply. 03 MR. JACKSON: Does that mean that the safe yield of the 04 basin is being exceeded? 05 MR. J. HANSON: Yes. In this case, it probably does. 06 Well, let's put it this way: The safe yield of the area 07 that I am talking about in Woodbridge is certainly 08 overdrafted; to that extent, the safe yield is exceeded, 09 the natural safe yield. 10 MR. JACKSON: Are all of the water users in the area 11 members of the Woodbridge Irrigation District? 12 MR. J. HANSON: Within the Woodbridge complex, the 13 answer to that is no. There are lands -- Woodbridge is a 14 checkerboard. It is less of a checkerboard now that the two 15 districts, the Water Users Conservation District and the 16 Irrigation District have merged. 17 But there are lands still situated within that general 18 boundary, which are not in any organized area except San 19 Joaquin County. 20 MR. JACKSON: Do those folks rely on groundwater? 21 MR. J. HANSON: They certainly do. 22 MR. JACKSON: The groundwater underneath their land is 23 being overdrafted? 24 MR. J. HANSON: They are drawing from that groundwater, 25 yes. 3107 01 MR. JACKSON: In the first paragraph on Page 7, the 02 last sentence of that paragraph -- well, the first sentence 03 of that paragraph indicates that it is your belief that the 04 reduced water supplies to Woodbridge are having adverse 05 impacts on North San Joaquin and the city of Lodi and the 06 City of Stockton. 07 What evidence do you have to indicate that to be true? 08 MR. J. HANSON: Well, the contour maps that are not on 09 here now show that the Woodbridge supply is historically 10 during the irrigation season and the groundwater mound that 11 develops under the system close to the west -- or to the 12 east and to the south into the pumping depression under the 13 city of Stockton. 14 MR. JACKSON: In other words, it is possible from your 15 examination over the last 30 years that the pumping 16 depression underneath the city of Stockton is what is 17 causing the central and southern portion of your district to 18 experience an overdraft condition? 19 MR. J. HANSON: No, I don't think I said that. I said 20 that is one of the factors that influences that. The basic 21 -- one of the primary sources of the overdraft is the fact 22 that supply to Woodbridge over the years diminished by 23 virtue of its contracts with East Bay and for other 24 reasons. But, certainly, the pumping depression under the 25 city of Stockton, as that pumping depression expands is 3108 01 influencing groundwater in Woodbridge as well as the other 02 portions of eastern San Joaquin County. 03 MR. JACKSON: In your last sentence in that paragraph 04 you talk about further degradation and groundwater quality 05 can be expected as the lower groundwater elevations allow 06 the encroachment of poorer quality water from the west. 07 Where is this water from the west coming from? 08 MR. J. HANSON: The water from the west is coming from 09 the Delta. Of course, in the Stockton area there has been a 10 real concern on the migration of the salty water in from the 11 old ancient connate brines that underlay in the Delta. 12 There is concern on the part of the county, and they are 13 beginning to monitor that situation further up along the 14 interface between the Woodbridge District and the Delta 15 sloughs. 16 MR. JACKSON: What is the difference in water quality? 17 You described it as poorer quality, but what is the 18 magnitude of difference? 19 MR. J. HANSON: I can't. I don't have those numbers. 20 MR. JACKSON: Is it substantially different? 21 MR. J. HANSON: In the Stockton area there is some of 22 very poor groundwater quality. 23 MR. JACKSON: Is it your testimony that this exchange 24 of groundwater quality from the west, as the groundwater 25 lowers underneath your district, is detrimental to the water 3109 01 quality of the remaining underground water? 02 MR. J. HANSON: Well, that is kind of a broad 03 statement. But I would say it can have an effect in the 04 area of the interface between the fresher water moving in on 05 the -- underlying the district and the poorer water quality 06 that might be coming in from the west. 07 MR. JACKSON: Now, you indicated that there is a -- 08 that you are working on a project that contemplates the 09 utilization of the Woodbridge canal system as a means of 10 spreading surplus water obtainable during years of above 11 average runoff? 12 MR. J. HANSON: Did I say that in here? 13 MR. JACKSON: Yes, I believe you did on page -- second 14 paragraph on Page 7. 15 Would you tell me about that project. 16 MR. J. HANSON: There was a project that was discussed, 17 and perhaps Mr. Christensen can talk about that more because 18 I was at later stages of those discussions, was not a party 19 to the discussions, but it was one of the projects that was 20 considered in conjunction with the County and other parties 21 within the east San Joaquin area as to what we might do to 22 get additional water put into the area from outside sources. 23 MR. JACKSON: Mr. Christensen, do you -- what was the 24 source of that water? 25 MR. CHRISTENSEN: The project that you are referring to 3110 01 is the Eastern San Joaquin Parties Groundwater Recharge 02 Project. It envisioned -- it actually envisioned looking at 03 all sources. It has been a project that has been ongoing 04 for the past three years. It's looked at a variety of water 05 sources within the county. Most recently there has been 06 discussion of a proposal in which utilizing water from the 07 East Bay MUD aqueduct, that when water was available in 08 surplus on the Mokelumne River that it could be banked in 09 wet years and recovered in dry years. 10 MR. JACKSON: Where would it be stored during wet years 11 to recover during dry years? 12 MR. CHRISTENSEN: The exact location really hasn't been 13 determined yet, but they focused on a site in the Stockton 14 area, east of Stockton, a little bit to the east and a 15 little bit to the north. Most recently, the exact focus of 16 where that water would be put in is the subject of another 17 study that hasn't been started yet but is currently under 18 discussion. That would look for the best and the optimal 19 place to recharge and recover water. 20 MR. JACKSON: So that is to be determined, what the 21 source of the water will be? 22 MR. CHRISTENSEN: One of the sources that was being 23 looked at is the Mokelumne River and surplus flows. There 24 are also a number of other sources that provide water for a 25 recharge project. So, the Mokelumne River is certainly 3111 01 under consideration, but I also point out that there are a 02 lot of other sources that have flows in wet years that could 03 be tapped. 04 MR. JACKSON: Are any of those sources from the 05 Sacramento River system? 06 MR. CHRISTENSEN: That's -- the one that is being 07 currently discussed is Mokelumne River water. And I know 08 East Bay MUD has a program of looking to develop water from 09 the American River as part of their planning. 10 But at this point in time, it's -- no decisions have 11 been made as to what the source or sources of water would 12 actually be. They are just currently under discussion. 13 MR. JACKSON: Thank you. 14 Mr. Christensen, there was an indication that it is 15 Woodbridge's position, I think from the resolution Exhibit 16 Number 9, that you would be willing to accept the Joint 17 Settlement Agreement as an appropriate contribution by the 18 Mokelumne River for your district and East Bay MUD; is that 19 correct? 20 MR. CHRISTENSEN: Yes. 21 MR. JACKSON: What percentage of the Mokelumne River 22 appropriation is represented by the East Bay MUD's 23 appropriation and yours? 24 MR. CHRISTENSEN: I don't have that information on the 25 top of my head. 3112 01 MR. JACKSON: Are there other water users besides 02 Woodbridge and East Bay MUD on the Mokelumne River? 03 MR. CHRISTENSEN: Yes, there are. 04 MR. JACKSON: Who are they? 05 MR. CHRISTENSEN: I believe East Bay MUD presented 06 those users in their testimony, and they include the 07 counties above Woodbridge, North San Joaquin Water 08 Conservation District, in addition to Woodbridge. 09 MR. JACKSON: Those numbers all added together probably 10 are less than half of your firm yield from the Mokelumne 11 system; is that correct? 12 MR. CHRISTENSEN: That wasn't a part of my testimony. 13 I can't really say that without looking at it. 14 MR. JACKSON: But you are not suggesting that those 15 folks -- that East Bay MUD flows also should be used for 16 those folks as well, are you? 17 MR. CHRISTENSEN: What I said in my testimony was that 18 if you applied the Sacramento River agreement formula that 19 has been discussed, and looking at it as a proportion -- 20 looking at it on the Mokelumne River, that the Joint 21 Settlement Agreement flows actually exceed the settlement 22 formula that was proposed. 23 MR. JACKSON: That would be if everyone on the 24 Mokelumne River were a part of the settlement flows? 25 MR. CHRISTENSEN: No. It just relates to the JSA and 3113 01 what East Bay MUD has proposed to release and what we would 02 agree not to divert. 03 MR. JACKSON: Thank you. That is all the questions I 04 have of this witness. 05 C.O. CAFFREY: Thank you, Mr. Jackson. 06 Do the staff have any questions? 07 MR. HOWARD: No questions. 08 C.O. CAFFREY: Thank you, Mr. Howard. 09 Anything from the Board Members or Mr. Pettit? 10 Mr. Brown. 11 ---oOo--- 12 CROSS-EXAMINATION OF WOODBRIDGE IRRIGATION DISTRICT 13 BY BOARD MEMBERS 14 MEMBER BROWN: Mr. Hanson, you have done public '84 and 15 '94 programs in the past, haven't you? 16 MR. J. HANSON: Say again. 17 MEMBER BROWN: You have completed public '84 and '94 18 programs in the past? 19 MR. J. HANSON: I am not familiar with them. I've 20 never been involved in one. I know the Woodbridge 21 Irrigation District was looking at that possibility at one 22 time as a means of improving their system. 23 MEMBER BROWN: Do you see districts in the valley doing 24 those kinds of conservation programs anymore? 25 MR. J. HANSON: Conservation programs? 3114 01 MEMBER BROWN: Lining the canals and such as that. 02 MR. J. HANSON: I know there is a lot of districts 03 have a very stringent lining program. But I can't speak to 04 it with personal knowledge of any specific program. 05 MEMBER BROWN: With declining groundwater basins, the 06 question is, of course, is that still a good evaluation of 07 true conservation? 08 MR. J. HANSON: In my opinion, particularly in the case 09 such as Woodbridge, it probably isn't. 10 MEMBER BROWN: What happens when a basin -- let's back 11 up. 12 Is a basin around your district and the Stockton area, 13 you think it is homogeneous? 14 MR. J. HANSON: I doubt it very seriously. I think 15 that the Mokelumne River meandered probably between the 16 Calaveras and where it is now, and that it is probably 17 underlain with a hodgepodge of sediments that certainly 18 render it nonhomogeneous. 19 MEMBER BROWN: You give your description of what 20 happens to the basins when they decline, the aquifer 21 subsidence, or what happens to the water quality? 22 MR. J. HANSON: Quality I am not -- certainly in this 23 case where they subside, you have an intrusion of the poorer 24 quality or even the brines, the very salty water from the 25 Delta. There can be a collapse of the aquifers, subsidence 3115 01 and collapse of water storage bearing materials. 02 MEMBER BROWN: How long did it take a basin to recover 03 from this kind of a situation, water quality and basin 04 subsidence? 05 MR. J. HANSON: Subsidence, they probably would never 06 recover. But as far as quality, I don't have any real 07 direct knowledge of it. I know they've had some fair amount 08 of success along the coastal plain in Orange County by 09 injection of good quality water to build a 10 freshwater/saltwater interface that keeps that water from 11 intruding; but it is a long process. 12 MEMBER BROWN: Will the GSA add or distract to the 13 groundwater condition out there? 14 MR. J. HANSON: I think, just my personal opinion, it 15 is probably neutral. 16 MEMBER BROWN: Thank you, Mr. Chairman. 17 C.O. CAFFREY: Thank you, Mr. Brown. 18 Any other questions from the Board? 19 All right. Mr. Gallery, do you have any redirect? 20 MR. GALLERY: Yes. Mr. Chairman, I do have a couple of 21 questions. 22 ---oOo--- 23 REDIRECT EXAMINATION OF WOODBRIDGE IRRIGATION DISTRICT 24 BY MR. GALLERY 25 MR. GALLERY: Mr. Hanson, directing your attention back 3116 01 to the Joint Settlement Agreement attachment flows, which 02 list in the right-hand column expected flows below 03 Woodbridge, and in response to Mr. Maddow you testified that 04 Woodbridge's plain is that it would not divert any water 05 that would interfere with those expected flows? 06 MR. J. HANSON: That is correct. 07 MR. GALLERY: But within that is the assumption that at 08 the same time East Bay MUD will be releasing water as called 09 for by Woodbridge under its 1965 Agreement; so it will be 10 receiving its contract entitlements at that time? 11 MR. J. HANSON: That's correct. These expected flows 12 are over and above East Bay commitment to Woodbridge and 13 Woodbridge deliveries -- releases from Camanche Reservoir. 14 Those releases are made to the extent necessary to provide 15 those amounts of water, Woodbridge's diversions. So there 16 are carriage losses that figured into the total releases. 17 MR. GALLERY: Then you mentioned also, briefly, in your 18 testimony that there has been some reduction of use of water 19 within the Woodbridge District from the Mokelumne River 20 diversions by reason of urbanization. 21 Could you give us a little more detail about the 22 location of where that urbanization has occurred. 23 MR. J. HANSON: Essentially, the first urbanization 24 that started encroaching on Woodbridge was in the north 25 Stockton area. As a matter of fact, the Woodbridge 3117 01 Irrigation District at one point in its history went -- and 02 there is the fact that the conveyor system is still in place 03 to carry water south of Calaveras, and it be treated from 04 that area many years ago. We have seen in my experience 05 with the district that dates from 1960 we have seen 06 encroachment onto the irrigated lands in the City of 07 Stockton moving northward. 08 MR. GALLERY: The district said that its boundary 09 extends down to the Calaveras River. And where does the 10 Calaveras River lie with respect to the city of Stockton? 11 MR. J. HANSON: Well, the Calaveras River runs, I would 12 say, used to be the north edge of the city of Stockton. It 13 is getting closer to the center of Stockton now. 14 MR. GALLERY: Stockton is growing to the north of the 15 Calaveras, and to that extent it's been expanding into the 16 southernmost portion of the Woodbridge service area? 17 MR. J. HANSON: That's correct. I can remember years 18 ago that Pacific Avenue just north of the University of the 19 Pacific used to be what was called the State Farm, which was 20 a mental institution, but it was a very renowned dairy farm 21 with prize Herefords -- I mean Holsteins. Woodbridge has 22 one of its canals called the State Farm Lateral that 23 delivered water to that area for many years. 24 MR. GALLERY: Is there some reason that you had to 25 bring up the University of the Pacific, Mr. Hanson? 3118 01 MR. J. HANSON: Of course. 02 C.O. CAFFREY: Are they any good at math over there? 03 MR. GALLERY: I just have a couple more questions of 04 Mr. Christensen. 05 MR. J. HANSON: Just to make -- I have to say this for 06 the Stanford people, you tell them you are from the 07 University of the Pacific, and they say, "Where is that?" 08 And then they say, "Where did you graduate?" "Stanford." 09 We say, "So what." 10 MR. GALLERY: Mr. Christensen, does Woodbridge 11 Irrigation District have any policy or rule or regulation 12 about wastage of water or over use of water? 13 MR. CHRISTENSEN: Yes, we do. 14 MR. GALLERY: Could you briefly tell us what that is. 15 MR. CHRISTENSEN: We don't allow the waste of water. 16 MR. GALLERY: Let's put it this way: Do you have -- 17 MEMBER DEL PIERO: Could you please read that back. 18 MR. GALLERY: What occasions have you had to enforce 19 that policy and what have you done to enforce it? 20 MR. CHRISTENSEN: Well, we do have a rules and 21 regulations policy set by the Board that really calls out 22 what efficient irrigation practices are. If a grower 23 violates those rules and regulations, he may be cut off from 24 his water deliveries, and we have regularly had to enforce 25 those rules. 3119 01 MR. GALLERY: Now, it's been indicated in the testimony 02 and evidence in here that a good deal of the water diverted 03 by Woodbridge Irrigation District finds its way into the 04 groundwater aquifer and used by landowners within the 05 irrigation district as well as by some landowners that are 06 interspaced within the exterior boundaries. 07 Does the Woodbridge Irrigation District levee some kind 08 of a fee against those users of the groundwater to reflect 09 the benefit that they are receiving? 10 MR. CHRISTENSEN: Yes. 11 MR. GALLERY: And that is called a groundwater 12 replenishment fee? 13 MR. CHRISTENSEN: Yes. 14 MR. GALLERY: That is levied against all of the lands 15 within the 41,000 acres or a portion? 16 MR. CHRISTENSEN: A portion of the lands within the 17 41,000 acres. There is approximately 28,000 acres that we 18 charge with this fee. 19 MR. GALLERY: That 28,000 acres has been defined by 20 determination of the areas that are actually benefiting by 21 the recharge from the operation of the surface system; is 22 that correct? 23 MR. CHRISTENSEN: That's correct. It was the subject 24 of a report done by our engineer, and it is reviewed 25 annually, at the time that these charges are levied. 3120 01 MR. GALLERY: So, there is an annual fee levied against 02 those lands for that replenishment benefit? 03 MR. CHRISTENSEN: Yes. 04 MR. GALLERY: That is all I have, Mr. Chairman. 05 C.O. CAFFREY: Thank you, Mr. Gallery. 06 Before we ask for recross, we want to go back a step. 07 Mr. Del Piero has a cross-examination question or two of Mr. 08 Hanson. 09 MEMBER DEL PIERO: Yes, one. 10 ---oOo--- 11 CROSS-EXAMINATION OF WOODBRIDGE IRRIGATION DISTRICT 12 BY BOARD MEMBERS 13 MEMBER DEL PIERO: Have you ever quantified your 14 systemic losses from the fact that you lose water in your 15 unlined canals? 16 MR. J. HANSON: When you say "systemic," what do you 17 mean? 18 MEMBER BROWN: Gravity. 19 MR. J. HANSON: Oh, the gravity flow. I never 20 quantified it. I know the district has a very stringent 21 program of weed control within its system. Andy can 22 probably tell you more about it than I can. I know that 23 that is practiced religiously because for many years, not 24 many years, but for a lot of years the district had a policy 25 of going through those canals with draglines and chains and 3121 01 that sort of thing. 02 MEMBER DEL PIERO: Is it a significant amount? 03 MR. J. HANSON: I don't think it is. 04 C.O. CAFFREY: Thank you, Mr. Del Piero. 05 By a showing of hands, do any of the parties wish to 06 recross the panel? 07 No recross-examination. 08 Mr. Gallery, do you wish to offer your exhibits into 09 evidence at this time? 10 MR. GALLERY: Mr. Chairman, I do. Woodbridge has 17 11 exhibits, beginning with the testimony and then continuing 12 on to the 1965 Agreement, the maps that have been 13 illustrated relating to groundwater boundaries, and the last 14 three exhibits are exhibits by reference relating to the 15 historical accounting of the source of the district's water 16 rights and the commencement of irrigation by the 17 Stockton-Mokelumne Canal Company back in the 1890s. 18 We would like to offer Exhibits 1 through 17 for 19 Woodbridge at this time. 20 C.O. CAFFREY: Thank you, Mr. Gallery. 21 Does that synchronize with our numbering system, Ms. 22 Whitney? 23 MS. WHITNEY: Yes. 24 C.O. CAFFREY: Any of the other parties -- is there any 25 objection to accepting these exhibits into the record? 3122 01 No response. The exhibits, as you have described them, 02 Mr. Gallery, and presented them are accepted into the 03 record. 04 Thank you, sir. 05 MR. GALLERY: Thank you. 06 C.O. CAFFREY: That completes the case in chief for 07 Woodbridge Irrigation District. I would like to thank Mr. 08 Christensen and Mr. Hanson, Mr. Gallery. Thank you, 09 gentlemen. 10 Off the record while we do a little housekeeping and 11 rearranging here. 12 (Discussion held off record.) 13 C.O. CAFFREY: Back on the record. 14 Good morning, Ms. Zolezzi. 15 ---oOo--- 16 DIRECT TESTIMONY OF SOLANO COUNTY WATER AGENCY 17 AND DEPARTMENT OF WATER RESOURCES 18 BY MS. ZOLEZZI AND MR. SANDINO 19 MS. ZOLEZZI: Jeanne Zolezzi representing the Solano 20 County Water Agency. We have here on behalf of Solano 21 County Water Agency two witnesses today: Mr. David Okita 22 and Mr. Roland Sanford. 23 By way of background: Solano County Water Agency has 24 developed a stipulation regarding Putah Creek which has been 25 agreed by the Department of Water Resources. We believe the 3123 01 most current version has also been agreed to by the State 02 Water Contractors. And a draft stipulation was originally 03 included in Solano County's exhibit list as Exhibit 1, which 04 was originally distributed to all parties. A revised and 05 final stipulation has been prepared in response to comments 06 by the Department of Fish and Game, Putah Creek Council, the 07 City of Davis and the State Water Contractors. Copies of 08 that stipulation are available here and were mailed to all 09 parties yesterday with a revised August 17th Exhibit 10 Identification Index. 11 So, for anyone who would like copies of that revised 12 stipulation which has not been signed by the Department of 13 Water Resources and the agency, I have copies. 14 This stipulation very briefly was premised upon two 15 facts, which initially got us to begin discussions with the 16 Department. The first is the State Water Resources Control 17 Board Draft EIR, which excluded Putah Creek from 18 Alternative 5 due to stated lack of hydraulic continuity. 19 The second factor was that Alternative 3 was based on a 20 modified Term 91 approach to watershed and the fact that 21 Prior State Water Resources Control Board Decision 1594, 22 which originally adopted Term 91, exempted Putah Creek or 23 application of Term 91 for the same reason. 24 So, based upon those two factors, we then compared the 25 amount of water actually released from the Solano Project 3124 01 under current operation to estimated unimpaired flow in the 02 months when diversions would be curtailed under Alternative 03 3 of the Draft EIR. And based upon the results of that 04 comparison, which Mr. Sanford will go through for you, we 05 concluded with the Department of Water Resources that the 06 stipulation was appropriate. 07 So, now I would like to proceed with Mr. Okita's 08 testimony. 09 C.O. CAFFREY: Excuse me for interrupting you, Ms. 10 Zolezzi; have the gentlemen been sworn? 11 MS. ZOLEZZI: I apologize. They have not. 12 (Oath administered by C.O. Caffrey.) 13 C.O. CAFFREY: I might also add, I don't know if your 14 witnesses were here yesterday to hear our slight admonition 15 or instruction. 16 For direct testimony there is a limit of 20 minutes per 17 witness. That is because your exhibits have been submitted, 18 so it is basically a summary. When you are being 19 cross-examined, there is no limit. There is an hour goal, 20 but there is no limit because that is a due process issue. 21 We appreciate it, gentlemen, if you could keep your 22 evidentiary statements to a 20-minute limit, and Mr. 23 Stubchaer will let you know when you have about two minutes 24 left so you can wind it up, if you get that far. 25 Thank you very much for being here. We will proceed. 3125 01 Thank you, Ms. Zolezzi. 02 MS. ZOLEZZI: Thank you, Chair Caffrey. 03 Mr. Okita, could you please state your full name and 04 your title for the record. 05 MR. OKITA: David Okita, General Manager of the Solano 06 County Water Agency. 07 MS. ZOLEZZI: Mr. Okita, you have a copy of SCWA 08 Exhibit 2A? 09 MR. OKITA: Yes, I do. 10 MS. ZOLEZZI: Is that a true and correct copy of your 11 qualifications? 12 MR. OKITA: Yes, it is. 13 MS. ZOLEZZI: You also have a copy of SCWA Exhibit 2. 14 Is that a true and correct copy of your testimony? 15 MR. OKITA: Yes, it is. 16 MS. ZOLEZZI: If I could ask Mr. Sanford to place a 17 copy of SCWA Exhibit 4 on the overhead, which is a map of 18 Putah Creek. 19 I would ask you, Mr. Okita, could you please point out 20 on that map the Solano Project and perhaps some other 21 important points along Putah Creek. 22 MR. OKITA: The Figure 1 on the screen here is the 23 lower part of Putah creek. If Mr. Sanford could point to 24 Monticello Dam which is the main feature of the Solano 25 Project, which impounds a maximum of 1.6 million acre-feet 3126 01 of water. Further downstream is the Putah Diversion Dam 02 which splits water that goes down Putah Creek and the other 03 split goes into the Putah South Canal, which is the main 04 canal for our service area of the Solano County Water 05 Agency. Putah Creek continues downstream by the city of 06 Winters, if you can point that out, and further downstream 07 is the city of Davis, across Interstate 80 and continues 08 into the Yolo Bypass. 09 MS. ZOLEZZI: Thank you, Mr. Okita. 10 Could you please summarize your testimony for the 11 record. 12 MR. OKITA: Yes, I will. Prior to the Solano Project, 13 Putah Creek was an ephemeral stream. Because it is located 14 on the west side of the valley, there is not a significant 15 snow pack. So, the runoff is characterized by high flows 16 during wintertime when it rains and in the summertime the 17 creek in many years dries up. 18 The degree of it drying up depends upon the rainfall 19 and also local groundwater conditions. Since Putah Creek 20 had been targeted as a potential reservoir site for many 21 years, there were USGS gauging information prior to the 22 project, which we're basing our information on. 23 Since the Solano Project was built, it obviously 24 changed the hydrology of Lower Putah Creek quite a bit. The 25 high winter flows are now impounded behind the dam, and 3127 01 additional summertime releases are released in accordance 02 with the State Water Resources Control Board permit 03 requirements. 04 So, you have less water coming down the creek in the 05 wintertime, and you actually have more water in most cases 06 coming down the creek during the summertime. 07 Ms. Zolezzi explained Decision 1594 and the prior State 08 Board's determinations regarding how Putah Creek interacts 09 with the Delta during times where additional water may be 10 needed for Bay-Delta standards, so I won't go into that. 11 The issue of hydraulic continuity is discussed in my 12 testimony. I just want to make clear that there is 13 hydraulic continuity between Putah Creek and the Delta, 14 particularly in the wintertime when you have water flowing 15 down the creek and goes into the Yolo Bypass and eventually 16 gets into the Delta. 17 However, during most summers of most years, there is 18 not a hydraulic continuity between Putah Creek and the Delta 19 during those time periods. 20 I want to talk a little bit about the development of 21 the stipulation. Again, Ms. Zolezzi covered some of that. 22 Based on the prior State Board findings regarding the 23 hydraulic continuity of Putah Creek, we felt it would be a 24 good idea, along with the Department of Water Resources and 25 the State Water Contractors, to pose this stipulation early 3128 01 along in the hearings in order to help the Board more 02 efficiently deal with all the water rights that you are 03 dealing with in the Sacramento Valley. 04 We are in agreement with the findings in the EIR and 05 the previous findings of this Board regarding the hydraulic 06 continuity of Putah Creek during times when it matters for 07 meeting the Bay-Delta standards and felt that it would be 08 more efficient to execute the stipulation and, to the extent 09 possible, have this Board hear the Putah Creek issues early 10 along during this hearing process. 11 I have no further comments on my summary. 12 MS. ZOLEZZI: Thank you. 13 If I could ask Mr. Sanford to return. 14 Would you please state your full name and title for the 15 record. 16 MR. SANFORD: My name is Roland Sanford, and I am the 17 Assistant General Manager with the Solano County Water 18 Agency. 19 MS. ZOLEZZI: You have a copy of Exhibit 3C of SCWA? 20 MR. SANFORD: Yes, I do. 21 MS. ZOLEZZI: Is that a true and correct copy of your 22 qualifications? 23 MR. SANFORD: It is a correct copy. 24 MS. ZOLEZZI: You have a copy of Solano County Water 25 Agency Exhibit 3; and is this a true and correct copy of 3129 01 your testimony? 02 MR. SANFORD: It is correct. 03 MS. ZOLEZZI: You also have a copy of SCWA Exhibit 3B, 04 which is a memorandum you prepared recording contributions 05 from the Solano Project to the Bay-Delta. In preparing that 06 memorandum you identified the months in the 71-year period 07 between 1922 and 1992 when diversion curtailments would be 08 imposed upon the Solano Project pursuant to Alternative 3 of 09 the Draft Bay-Delta EIR and in those months compared the 10 estimated unimpaired stream flow at the Putah Diversion Dam 11 to actual releases from the Putah Diversion Dam; is that 12 correct? 13 MR. SANFORD: That's correct. 14 MS. ZOLEZZI: That comparison is shown on Table 1 from 15 your testimony which is on the overhead, and please note 16 that Table 1 is a part of SCWA Exhibit 3B. 17 Mr. Sanford, could you please summarize your 18 comparison. 19 MR. SANFORD: Actually you did a pretty good job of it, 20 but -- 21 C.O. CAFFREY: You don't need any witnesses. 22 MR. SANFORD: As Ms. Zolezzi said, the table here is a 23 comparison of what the Putah Diversion Dam release would 24 have been versus what the estimated unimpaired flow at that 25 location is thought to be. And very briefly, you will 3130 01 notice there are a number of positive numbers on the table. 02 This is just a reflection of fact that in more often than 03 not the release from the Putah Diversion Dam is greater than 04 what the estimated unimpaired flow would have been. 05 Again, in very general terms, roughly 70 percent of the 06 time the release from the Putah Diversion Dam is greater 07 than the estimated unimpaired flow. 08 In looking at the period of record, what we find is 09 that over the 71-year period, between 1922 and 1992, the 10 releases from the Putah Diversion Dam are on average about 11 1,500 acre-feet greater than the corresponding unimpaired 12 flow. These are in thousands of acre-feet. 13 MS. ZOLEZZI: That concludes our presentation, and the 14 witnesses are now available for cross-examination. But I 15 believe it might be more appropriate for the Department of 16 Water Resources to make their presentation, and then we 17 could cross-examine together if that is acceptable to the 18 Board. 19 C.O. CAFFREY: Is this one of the joint presentations 20 we talked about, Mr. Sandino? I kind of lost track. 21 MR. SANDINO: Yes, it is. 22 C.O. CAFFREY: Why don't you do that, then, and then we 23 will present the witnesses as a panel. 24 Good morning, gentlemen. 25 MR. SANDINO: Good morning. 3131 01 MEMBER DEL PIERO: Mr. Chairman. 02 C.O. CAFFREY: Mr. Del Piero. 03 MEMBER DEL PIERO: Ms. Zolezzi and Mr. Sandino are both 04 graduates of the University of Santa Clara. 05 C.O. CAFFREY: Should we go off the record? 06 MR. SANDINO: Maybe we should sit down. 07 MEMBER DEL PIERO: I just wanted to point out that a 08 command of mathematics was a prerequisite to be admitted to 09 that institution. I graduated from there as well. I just 10 thought I would point that out to those of you who obtained 11 your degrees from elsewhere. 12 MR. BIRMINGHAM: I appreciate that, Mr. Del Piero. 13 C.O. CAFFREY: Off the record. 14 (Discussion held off the record.) 15 C.O. CAFFREY: Good morning, Mr. Sandino. 16 MR. SANDINO: Good morning, I am David Sandino, 17 representing the Department of Water Resources and we are 18 presenting Mr. Russell again in support of a stipulation 19 involving Putah Creek. 20 Mr. Russell, you understand you are still under oath? 21 MR. RUSSELL: Yes, I do. 22 MR. SANDINO: You have in front of you again DWR 23 Exhibit 32? 24 MR. RUSSELL: Yes, I do. 25 MR. SANDINO: Is this exhibit a true and correct copy 3132 01 of your testimony? 02 MR. RUSSELL: Yes, it is. 03 MR. SANDINO: Would you please summarize it to the 04 Board as it relates to Putah Creek. 05 MR. RUSSELL: I will. With respect to Putah Creek, the 06 Department, the State Water Contractors and the Solano 07 County Water Agency have proposed to enter into stipulation 08 concerning the Putah Creek, and the Department of Water 09 Resources has signed that stipulation. 10 The parties have agreed to a factual basis that as long 11 as the agency continues to divert water from Putah Creek in 12 accordance with its current water rights, no requirements 13 should be placed on the agency to implement the water 14 quality objectives of the 1995 Water Quality Control Plan in 15 the Delta. 16 The parties believe this settlement is also consistent 17 with the principles, in previous Board decision, 1594, 18 issued in 1983, which determined for the purposes of Term 91 19 that the Putah Creek water rights have been exercised and 20 Putah Creek has little or no hydraulic continuity with the 21 Delta or when the Delta was not in balanced condition. 22 This settlement is consistent with the Board's Draft 23 EIR on Pages II-29 which did not allocate responsibility 24 flow objectives to the Putah Creek watershed for flow 25 Alternative 5 which is based on watershed unimpaired flows. 3133 01 Because of Putah Creek's essential lack of hydraulic 02 continuity with the Delta when the Delta is in balanced 03 condition, the district presented technical evidence to 04 support the stipulation. The Department has reviewed the 05 technical evidence for the stipulation and believes there is 06 a supportable factual basis to enter into the stipulation. 07 That concludes my testimony. 08 C.O. CAFFREY: Thank you, sir. 09 I believe we are now at the point where 10 cross-examination is in order. By a showing of hands, who 11 wish to cross-examine the panel? 12 We have Mr. Gallery, Mr. O'Brien and Mr. Maddow. 13 Anybody else? 14 I have Mr. Gallery, Mr. O'Brien and Mr. Maddow. And 15 Ms. Cahill. All right. We will go in that order. 16 Mr. Gallery. 17 ---oOo--- 18 CROSS-EXAMINATION OF SOLANO COUNTY WATER AGENCY AND 19 DEPARTMENT OF WATER RESOURCES 20 BY PEOPLE IN UPPER PUTAH CREEK WATERSHED 21 BY MR. GALLERY 22 MR. GALLERY: Members of the panel, I represent a 23 couple of people in the Upper Putah Creek watershed up above 24 Lake Berryessa. I just wanted to see how your proposal 25 would affect the people in the upper watershed. 3134 01 Mr. Sanford, you have indicated that as we go clear 02 back to 1922, long before Lake Berryessa was put on line, 03 there was little or no hydraulic continuity during the 04 summer months when the Delta needed additional flows under 05 the plan. 06 And that since the Solano Project, Lake Berryessa has 07 come on line, your releases exceed what that flow would have 08 been down Putah Creek. So, if it's logical that the Solano 09 Project should be exempted from any contributions to the 10 Delta because of that lack of continuity, that same logic 11 would apply to the people in the upper watershed? 12 MR. SANFORD: I would think so. 13 MR. GALLERY: Mr. Russell, would you agree with that? 14 MR. RUSSELL: I agree. 15 MR. GALLERY: Mr. Okita, would you agree with that? 16 MR. OKITA: I agree. 17 MR. GALLERY: Thank you. 18 That is all I have. 19 C.O. CAFFREY: Mr. O'Brien. 20 ---oOo--- 21 CROSS-EXAMINATION OF SOLANO COUNTY WATER AGENCY AND 22 DEPARTMENT OF WATER RESOURCES 23 BY MAINE PRAIRIE WATER DISTRICT & RECLAMATION DISTRICT 2068 24 BY MR. O'BRIEN 25 MR. O'BRIEN: The thrust of my questions are very 3135 01 similar to Mr. Gallery's. I represent two districts, the 02 Maine Prairie Water District and Reclamation District 2068, 03 which are at the bottom end of the watershed. Both of which 04 utilize supplies from the Solano Project, as we've testified 05 to yesterday. And I have just a couple of questions about 06 that. 07 First, with respect to the Maine Prairie Water 08 District, Mr. Okita, you are familiar with Maine Prairie? 09 MR. OKITA: Yes, I am. 10 MR. O'BRIEN: They hold a contract, water supply 11 contract, with your agency; is that correct? 12 MR. OKITA: Yes, they do. 13 MR. O'BRIEN: This may be an obvious question, or the 14 answer may be obvious, but I am going to have to ask it any 15 way. 16 With respect to the various districts and 17 municipalities that hold water supply contracts with your 18 agency, is it your intent that the benefits of this 19 stipulation would flow to them as well so that to the extent 20 that this stipulation is approved by the State Board, and 21 the agency would be exempted from any curtailments, that 22 those benefits would flow through to the ultimate contract 23 holders? 24 MR. OKITA: Yes, that is correct. 25 MR. O'BRIEN: Now with respect to Reclamation District 3136 01 2068, are you also familiar generally with that district? 02 MR. OKITA: Yes, I am. 03 MR. O'BRIEN: That district does not hold a contract 04 with your agency; is that correct? 05 MR. OKITA: That is correct. 06 MR. O'BRIEN: Are you aware that Reclamation District 07 2068 diverts, as a portion of its water supply, diverts 08 tailwater that originates within the Solano Project? 09 MR. OKITA: Yes, I am. 10 MR. O'BRIEN: Can you think of any reason why the 11 diversions by RD 2068 of Solano Project tailwater would not 12 be subject to the same protections under the stipulation as 13 the member units obtained? 14 MR. OKITA: No. I believe they would fall in the same 15 understanding. 16 MR. O'BRIEN: Thank you. 17 Mr. Russell, do you disagree with that in any respect? 18 MR. RUSSELL: At this point in time we haven't looked 19 into it in detail. So I would think we would look into it 20 and make a decision based on the findings. 21 MR. O'BRIEN: As you sit here today, based on my 22 representation that we are talking about Solano Project 23 water, tailwater from the Solano Project, water that is 24 diverted by a downstream district, and this occurs pursuant 25 to an appropriative right, can you think of any reason, as 3137 01 you sit here today, why the Department would object to 02 including that district within the protections of the 03 stipulations like the one you are testifying to here today? 04 MR. RUSSELL: The one today is specific for Putah Creek 05 and as that flows toward the Yolo Bypass and into the Delta 06 and under the condition in which the water would be required 07 for Delta protections. With respect to yours, we would look 08 at it and likely, if it is of the same nature as what we 09 have with Putah Creek, we would enter into a stipulation if 10 it bears out to be the same. 11 MR. O'BRIEN: Thank you. 12 No further questions. 13 C.O. CAFFREY: Thank you, Mr. O'Brien. 14 Mr. Maddow. 15 MR. MADDOW: Thank you Mr. Chairman. 16 ---oOo--- 17 CROSS-EXAMINATION OF SOLANO COUNTY WATER AGENCY AND 18 DEPARTMENT OF WATER RESOURCES 19 BY CONTRA COSTA WATER DISTRICT 20 BY MR. MADDOW 21 MR. MADDOW: I am Robert Maddow, appearing for the 22 Contra Costa Water District. I have just a couple 23 questions, Mr. Russell. 24 Mr. Russell, as you may recall from cross-examination 25 in previous portions of this hearing, that Contra Costa 3138 01 Water District is interested in the way in which settlement 02 agreements generally work, and in particular how the 03 Department has been approaching them, and my questions are 04 in that vein. 05 In the first place, I was attempting to both read and 06 listen a little while ago, but I just want too verify that 07 the Department has, in fact, executed this Putah Creek 08 stipulation. Is that correct? 09 MR. RUSSELL: That's correct. 10 MR. MADDOW: In reviewing your testimony in Exhibit 32, 11 and I believe you read this into the record, one of the 12 considerations that the Department reviewed in deciding 13 whether or not to sign this stipulation was the relationship 14 between what was happening on Putah Creek with what was 15 happening in the Delta; is that correct? 16 MR. RUSSELL: That is correct, under the flow 17 alternatives as identified in the Board's EIR. 18 MR. MADDOW: In other words, the Department took into 19 consideration whether or not the activities on that stream, 20 the flows on that stream, would make a difference in the 21 Delta when the Delta was in balanced conditions. Is that 22 correct? 23 MR. RUSSELL: That is correct. 24 MR. MADDOW: Is that one of the criteria the 25 Department generally takes into account when it considers 3139 01 stipulations or settlement agreements? 02 MR. RUSSELL: Specifically, this is a stipulation of 03 fact where we believe there was no hydraulic continuity with 04 the Delta. So, it is not a settlement agreement in that 05 nature, just to separate those two. 06 To answer your question, yes, it was. 07 MR. MADDOW: Thank you very much. 08 I have no further questions. 09 C.O. CAFFREY: Thank you, Mr. Maddow. 10 Ms. Cahill. Good morning. 11 ---oOo--- 12 CROSS-EXAMINATION OF SOLANO COUNTY WATER AGENCY AND 13 DEPARTMENT OF WATER RESOURCES 14 BY RANCHO MURIETTA COMMUNITY SERVICES DISTRICT 15 BY MS. CAHILL 16 MS. CAHILL: Good morning. 17 Virginia Cahill, today representing Rancho Murietta 18 Community Services District. 19 My question is also for Mr. Russell. 20 As I understand it, the consideration here was what the 21 unimpaired flows would be on the river in the pertinent 22 times; is that correct? 23 MR. RUSSELL: If I may expand on that? 24 MS. CAHILL: Yes, please. 25 MR. RUSSELL: Our understanding is that this particular 3140 01 proceeding is associated with the water that occurs, for 02 sake of discussion I will use a monthly time step. It is 03 the unimpaired flows that occurs at that time step, not 04 necessarily water that is impounded and then subject to the 05 use later in the years. 06 MS. CAHILL: So that would be true for all the streams 07 that are tributary to the Delta? 08 MR. RUSSELL: Yes. 09 MS. CAHILL: Could you explain why it is that you 10 looked to what would have been the unimpaired flow? 11 MR. RUSSELL: We look at the unimpaired flow as the 12 basis of flow Alternative 5. 13 MS. CAHILL: How would it play in with regard to other 14 flow alternatives, for example, 3 and 4, if the Board were 15 to select one of them? 16 MR. RUSSELL: For this particular case under 17 Alternative 3 and 4, which is a version of Term 91, the 18 previous Board decisions, 1594, had excluded Putah Creek 19 specifically from having hydraulic continuity with the 20 Delta. So, at this point we felt that there was no water 21 reaching the Delta in times of need under those flow 22 alternatives. 23 MS. CAHILL: Thank you. 24 C.O. CAFFREY: Thank you, Ms. Cahill. 25 Questions from staff? 3141 01 MR. HOWARD: Yes. 02 C.O. CAFFREY: Mr. Howard. 03 ---oOo--- 04 CROSS-EXAMINATION OF SOLANO COUNTY WATER AGENCY AND 05 DEPARTMENT OF WATER RESOURCES 06 BY STAFF 07 MR. HOWARD: As I understand Table 1, it tells me when 08 the unimpaired flow is in excess of the diversion dam 09 releases. So a negative number means that the unimpaired 10 flow is in excess of the diversion dam releases? 11 MR. SANFORD: That is correct. 12 MR. HOWARD: In the months in which the flow is 13 negative, assuming that this reflected a Term 91 bypass 14 requirement, would those flows reach the Delta? Rather not 15 would those flows reach the Delta, but is there hydraulic 16 continuity between the Putah Creek and the Delta in those 17 months? 18 MR. SANFORD: There may be under some circumstances, 19 depending on how large that unimpaired flow is. 20 MR. HOWARD: I had a question for Mr. Russell. 21 Yesterday I asked a question whether or not, I believe 22 dealing with East Bay MUD, that for purposes of calculation 23 of Term 91, if the Department of Water Resources is going to 24 be a guarantor, whether for powers of the calculation they 25 should be the contributions from the parties that you are 3142 01 guaranteeing the flows of, whether, if you can manage that 02 tangled syntax, they should be treated for purposes of 03 calculation as an in-basin contractor? Is that how you 04 would suggest we would treat the Solano Country Irrigation 05 District or Solano County Water Agency? 06 MR. RUSSELL: No. If I can expand on that, please. 07 The intent here is that Solano County Water Agency 08 would not have an obligation for Delta protection based on 09 they would not be impounding an unimpaired flow at the time 10 that the Delta was in need of that unimpaired flow. 11 MR. HOWARD: Wasn't the testimony just now from a 12 previous witness that there were at least occasions when 13 that might be the case? 14 MR. RUSSELL: It speaks to the little or no hydraulic 15 continuity concept. This is very little in that respect. 16 Perhaps, if the -- I don't have a definition for what little 17 is. To the extent that that is -- it may be some in some 18 time, and the Department would be backstopping that as 19 well. 20 MR. HOWARD: Thank you. 21 C.O. CAFFREY: Any other questions from the staff 22 members? 23 Anything from the Board Members or Director Pettit? 24 All right. Do you wish to offer any redirect? 25 MS. ZOLEZZI: Just one question for Mr. Sanford. 3143 01 ---oOo--- 02 REDIRECT EXAMINATION OF SOLANO COUNTY WATER AGENCY AND 03 DEPARTMENT OF WATER RESOURCES 04 BY MS. ZOLEZZI 05 MS. ZOLEZZI: In looking at Table 1 attached to your 06 memo which is SCWA Exhibit 3B, Mr. Howard asked in those 07 months when flow was negative, would there be possibly 08 hydraulic continuity between Putah Creek and the Delta. My 09 question for you is: If you will look at that table, the 10 vast majority of those months under which a negative balance 11 would show up are June, July and August. 12 From your experience with the creek and your hydraulic 13 analysis that you undertook in preparation for the 14 stipulation, would you conclude that in many months -- that 15 in the months of June, July and August of most years is 16 there hydraulic continuity between Putah Creek and the 17 Delta? 18 MR. SANFORD: Most of the time there would not be 19 during those months. 20 MS. ZOLEZZI: Thank you. 21 That is all I have. 22 C.O. CAFFREY: Thank you, Ms. Zolezzi. 23 Mr. Sandino, do you have any? 24 MR. SANDINO: No, I do not. 25 C.O. CAFFREY: Do any of the parties wish to recross 3144 01 the panel? 02 Mr. Campbell. 03 ---oOo--- 04 RECROSS-EXAMINATION OF SOLANO COUNTY WATER AGENCY AND 05 DEPARTMENT OF WATER RESOURCES 06 BY DEPARTMENT OF FISH AND GAME 07 BY MR. CAMPBELL 08 MR. CAMPBELL: Mr. Sanford, I just have a quick 09 follow-up question to that last question. Your statement 10 that you just made, that applies to preproject conditions; 11 is that correct? 12 MR. SANFORD: Preproject unimpaired flow. 13 MR. CAMPBELL: Not current conditions in the creek? 14 MR. SANFORD: That is correct. 15 MR. CAMPBELL: Thank you. 16 C.O. CAFFREY: Thank you, Mr. Campbell. 17 C.O. CAFFREY: All right, Ms. Zolezzi, do you wish to 18 offer your exhibits. 19 I am sorry. I forgot the staff and the Board on 20 redirect. 21 Go ahead, Mr. Howard. 22 ---oOo--- 23 RECROSS-EXAMINATION OF SOLANO COUNTY WATER AGENCY AND 24 DEPARTMENT OF WATER RESOURCES 25 BY STAFF 3145 01 MR. HOWARD: Would you clarify again -- I guess I am 02 still uncertain. During -- under present conditions in the 03 months in which there is a negative there, is there 04 hydraulic continuity often? Not often. I am a little 05 confused, based on the answer you just gave to the previous 06 questioner. 07 MR. SANFORD: In the cases where a negative number is 08 indicated on these tables, generally, if the negative number 09 is less than 2,000 acre-feet, there is not going to be 10 hydraulic continuity. The problem is that, as we increase 11 maybe towards 5,000 acre-feet per year, there may be a few 12 hundred acre-feet worth that actually make it to the Delta. 13 So, we are talking about a very small amount that actually 14 makes it to the Delta. In that sense, there is hydraulic 15 continuity. 16 MR. HOWARD: Thank you. 17 C.O. CAFFREY: Anything from the Board Members on 18 recross? 19 Now, Ms. Zolezzi, would you like to offer your 20 exhibits? 21 MS. ZOLEZZI: Thank you. 22 I would like to offer the exhibits of Solano County 23 Water Agency on their revised August 17th, 1998, 24 identification index, and that would be SCWA Exhibits 1 25 through 20, including 2A and 3A, 3B and 3C. 3146 01 C.O. CAFFREY: Does that synchronize? 02 It does not. Well, we have a first. 03 MS. WHITNEY: I don't believe that most of those 04 exhibits have been introduced yet. 05 MR. ZOLEZZI: The witnesses have not testified to each 06 of them. Most of them are public documents, either 07 submitted in the Board's exhibits or in the hands of the 08 Board. 09 MS. WHITNEY: Are they contained in their written 10 testimony? Are they referenced in the written testimony? 11 MS. ZOLEZZI: They are referenced, yes, in Mr. 12 Sanford's memorandum. 13 C.O. CAFFREY: Ms. Leidigh, do you have something to 14 tell us? 15 MS. LEIDIGH: I don't think there is a problem if they 16 are discussed in the written testimony that they have sworn 17 to. 18 MS. ZOLEZZI: That is correct. 19 C.O. CAFFREY: Is there any objection to accepting the 20 exhibits, as numerically identified, into the record? 21 No objection. They are accepted. 22 Ms. Zolezzi, thank you. 23 That completes Ms. Zolezzi's part of things. 24 Mr. Sandino, is this the point at which you are going 25 to offer your exhibits? 3147 01 MR. SANDINO: I hope so. 02 C.O. CAFFREY: We finally reach that point. All right, 03 sir. 04 MR. SANDINO: The moment you've been waiting for has 05 arrived. We would like to offer DWR Exhibit 32, which is 06 the testimony of Dwight Russell. DWR Exhibit 33 we will not 07 be offering. That is the Memorandum of Understanding with 08 North Delta Water Agency, and North Delta Water Agency has 09 already offered it, so we won't complicate the record. And 10 then DWR 34, the stipulation with Cache Creek, I believe has 11 already been introduced. 12 MS. WHITNEY: I agree with that. 13 C.O. CAFFREY: Is there any objection? I guess you 14 really technically are submitting one? 15 MR. SANDINO: One at this time. 16 C.O. CAFFREY: Is there any objection to accepting that 17 exhibit? 18 MR. MADDOW: Just a question for clarification, Mr. 19 Chairman. 20 I assume that Mr. Sandino is offering Mr. Russell's DWR 21 Exhibit 32 in the amended form? 22 MR. SANDINO: Yes, that is correct. 23 C.O. CAFFREY: In the amended form. Thank you for that 24 clarification, Mr. Maddow. 25 Is that what you have, Ms. Whitney? 3148 01 MS. WHITNEY: Yes, amended form. To clarify, 34 was 02 also accepted previously. 03 C.O. CAFFREY: That was the description of his 04 credentials. 05 MS. WHITNEY: No, that is the stipulation between DWR 06 and Yolo County Flood Control and Water Conservation 07 District. We accepted that on -- 08 C.O. CAFFREY: Accepted in another case in chief; is 09 that what we are saying here? 10 MR. SANDINO: Yes. 11 Mr. Russell pointed out, I am not clear whether or not 12 his qualifications were accepted. 13 C.O. CAFFREY: Let's double check that. 14 MS. WHITNEY: Yes, we did that on the 6th, also. 15 C.O. CAFFREY: Then, give me the number again on the 16 one we are proposing now. Is it 34? 17 MS. WHITNEY: 32. 18 C.O. CAFFREY: This is 32 as amended. 19 Any objection to accepting Exhibit 32 as amended? 20 None. It is accepted. 21 That completes the case in chief for Solano County 22 Water Agency. 23 Thank you, Ms. Zolezzi. 24 Thank you to the panel. 25 Thank you, Mr. Sandino. 3149 01 Thank you, Mr. Russell. 02 It is now just about noon. Let's take a lunch break 03 and come back at 1:15. 04 Thank you. 05 ---oOo--- 06 07 08 09 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3150 01 AFTERNOON SESSION 02 ---oOo-- 03 C.O. CAFFREY: Good afternoon. 04 We are at that point in time where we will hear the 05 case in chief for the Department of the Interior. 06 Mr. Brandt. 07 MR. BRANDT: Thank you, Mr. Chairman. 08 ---oOo--- 09 TESTIMONY OF DEPARTMENT OF THE INTERIOR 10 BY MR. BRANDT 11 MR. BRANDT: I guess it is time for us to take the next 12 step, just stepping up to the plate. You heard us 13 throughout Phase II talking about San Joaquin River and how 14 we viewed that. Now, I guess it is the time for the next 15 step, to move on to what happens everywhere else for 16 flow-dependent alternatives. It is the puzzle that you will 17 enjoy looking forward to, all of us trying to work out, 18 particularly the Board. I know they face a great challenge. 19 As we look at everything outside the San Joaquin River 20 watershed, we look at the proposals, the proposed agreements 21 that are out today and that we have been hearing about for 22 the last several days. From our view, at least, we don't 23 think they, as a whole they take enough steps, they create 24 enough pieces to really put the puzzle together. They 25 aren't enough at this point without implementing and 3151 01 figuring out the larger question of how to implement flow 02 standards and what approach to take. They are not enough 03 for us to be implemented and adopted right at this point. 04 They are just really pieces of pieces of a much larger 05 puzzle. 06 As you may recall, we put out some criteria in April as 07 to what we should be looking for in settlements, what we 08 were looking for in settlements. One of the key ones was 09 actually resolution of an entire watershed. We don't think 10 we see that in the agreements we have before us. 11 Now it's time for us to focus on doing -- implementing 12 the entire WQCP and how to do that, particularly how to do 13 flow-dependent objectives. And the Interior, I guess we are 14 taking this opportunity since we don't see the agreements 15 going far enough at this point, to sort of say, "Where are 16 we coming from," as we look at agreements and consider 17 whether and how much to backstop the agreements that are 18 being proposed or will be proposed in the future. We 19 thought we'd take this opportunity to step forward and say 20 this is sort of the standard we are going to gauge it on at 21 this point. 22 From the start for us, in our role that you have heard 23 over and over again of trying to balance demands of water 24 users and the environment, that two of the agencies in our 25 department are pursuing, we think that the best way to start 3152 01 is with the water right priority system. It effectively 02 implements the 1995 WQCP, and follows, for the most part, 03 the legal instructions that we all received from the 04 Racanelli decision, which has now been more than ten years 05 ago. 06 I guess it is probably good for us to start for what 07 our understanding is of the important principles from the 08 Racanelli decision from the United States versus State Water 09 Resources Control Board. Although Judge Racanelli gave a 10 number of conclusions, three admonitions stand out to us. 11 First of all, consider the watershed perspective. 12 Delta's health really depends on the entire ecosystem all up 13 through the watersheds upstream, including upstream of the 14 Delta. It is just as a human organ relies on arteries to 15 carry nutrients and carry oxygen to it from other parts of 16 the body, so does the Delta depend on the tributaries and 17 all the way upstream to carry diverse sediment and nutrients 18 to operate and survive and really grow. 19 Second, protect public trust uses whenever feasible. 20 Racanelli court cited and quoted the Supreme Court, to do 21 it whenever feasible, that it is an affirmative duty anytime 22 you are doing allocation of water resources. Well, we are 23 in a process now of allocating water resources, that is why 24 the second key principle is to think about public trust 25 uses. Not just how to implement the standards, but how does 3153 01 that implementation affect those public trust uses. 02 And third, the other key principle, from our 03 perspective, is create that reasonable standard that I think 04 we are trying to apply here. It looks at reasonable use and 05 sort of set it as the touchstone, something to consider in 06 how to evaluate and how to implement a water quality control 07 plan, both in general as well as the Delta's Water Quality 08 Control Plan particularly. So, in effect, establish a 09 reasonable standard that we are all now trying to establish. 10 Factually, what is reasonable? 11 The Board then went forward and set options and sort of 12 set, I guess the range would be, from one perspective is to 13 go the way we have been doing it for more than four decades, 14 which is rely just on the projects, to perhaps the other end 15 is spreading it throughout the watersheds proportionately, 16 every watershed based on some proportion of its unimpaired 17 flow. We then see there is sort of a middle road, which is 18 the, from our perspective, the water rights priority 19 approach. It's a start. 20 Let me emphasize that when we say water rights priority 21 approach, we view it more than just Alternative 3. 22 Alternative 3 is a good way to look at it, but it is really 23 just a start. If we want to call water rights priority the 24 touchstone, I want to emphasize that it is a touchstone, not 25 necessarily an immovable boulder that we will never be able 3154 01 to move away from. 02 One of the key reasons -- second thing we need to do is 03 in looking at water right priorities is take that as a first 04 step in this first post Racanelli implementation of the 05 Water Quality Control Plan for the Delta. Second is promote 06 water contributions from every watershed. We talked about 07 the importance of the watershed perspective. We may find 08 that some tributaries, under water rights priority approach, 09 contribute nothing, and their contribution may be crucial. 10 Because of some acknowledged difficulties or problems with 11 the modeling in Alternative 5, we may not have enough 12 information to really evaluate all that we need to look at 13 on the environmental side. 14 What we do know is we know that the Delta needs 15 contributions from every watershed. You will hear our 16 biologist testify today how important that is to the health 17 of the Delta ecosystem. And for that reason we would also 18 emphasize we would disagree with the Board's assumption that 19 the projects will provide replacement water for anyone who 20 has to give up water as is suggested in Alternative 3. 21 First of all, the ecosystem would still be limited to 22 those narrow few sources that the projects are operating on, 23 the few rivers that they are operating on. Also, CVP 24 resources, frankly, are burdened, to say the least, at this 25 point, and we are constantly challenged to provide enough 3155 01 resources for all our contractors. 02 Next, remain flexible. This is probably not going to 03 be the only way over -- this is a long-term process. We are 04 going to be experiencing triennial reviews, and we will grow 05 in our scientific knowledge and understanding of the Delta, 06 how it works and what is needed for the Delta. And I think 07 an important part of remaining flexible is promoting 08 settlement agreements that may help draw from other sources. 09 There may be sources, may be places where we can get water 10 up through agreements that the water rights priority 11 approach may not get us. Of course, this is all outside the 12 San Joaquin River. 13 So, why? And I will keep this rather short. Might be 14 passing around our statement, and it goes into a little bit 15 more. First of all, it promotes the watershed perspective. 16 It expands beyond those few streams where the projects 17 operate and draws from more than just those streams. So, 18 therefore, promotes the watershed perspective. Second, it 19 helps the public trust resources. Therefore, because it is 20 drawing from those and giving that rich diversity of flows. 21 It also sustains the cornerstone, the key cornerstones of 22 water rights law which is first in time, first in right. We 23 think that makes it, perhaps, an easier way to go in some 24 ways at this point. 25 The other alternatives, from our view, are less 3156 01 attractive. Project only alternative, basically, you won't 02 be surprised, is only on the project streams. So, it is not 03 going to promote that diversity. 04 Alternative 4 requiring Friant to contribute, we view 05 it as some ways unreasonable because the amount of water it 06 would take because of the seepage to get to the Delta from 07 Friant, except in wet years. 08 Alternative 5 has many of the benefits of drawing from 09 diverse tributaries, but it is administratively difficult. 10 We may find somewhere down the road that that administrative 11 burden is overcome by the importance of drawing from all 12 those watersheds. But that is something, I think, we will 13 be looking at in years ahead. 14 We are going to say very little about recirculation. I 15 am sure you will be hearing more in Phase II [verbatim] 16 about that. We do have serious questions about whether that 17 makes sense, to focus on recirculation which would help one 18 part of the Delta and have effects on other watersheds. 19 So, from our view, the path is clear, that middle road. 20 It is taking water rights priority, using traditional, 21 something that is traditional and well-established in water 22 rights law, but also build on the important principles and 23 helps promote those important principles, which are the 24 watershed perspective, promoting the public trust resources 25 and using that reasonable use standard and using reasonable 3157 01 use requirements in the Constitution. 02 So, we think those three principles, along with the 03 traditional, first in time, first in right, those really 04 form the cornerstones of what we are here doing in these 05 hearings. That's how we are going to approach it, and, I 06 think, that is why we are going to present to you now some 07 of the biological testimony that is just really a start for 08 us on presenting the importance of the different watersheds 09 to promoting and improving the Delta. 10 With that I would like to start with my two witnesses. 11 And I believe they may need to be sworn. 12 (Oath administered by C.O. Caffrey.) 13 C.O. CAFFREY: Welcome. Please proceed, Mr. Brandt. 14 MR. BRANDT: Thank you. 15 I will start with -- what we will do is do both of 16 them together. They will do their direct and then we will 17 be presenting them as a panel. Let's start with Ms. Goude. 18 Ms. Goude, would you state your name for the record and 19 spell both your first and your last names. 20 MS. GOUDE: My name is Cay Goude. My first name is 21 spelled C-a-y. My last name is spelled G-o-u-d-e. 22 MR. BRANDT: Thank you. 23 What do you do for a living? 24 MS. GOUDE: I am s Fish and Wildlife biologist, and I 25 am Chief of the Endangered Species Division of the 3158 01 Sacramento field office. 02 MR. BRANDT: I am going to put before you Department of 03 Interior Exhibit 8, and I would like to draw your attention 04 to Exhibit 8A. 05 Is that an accurate reflection of your qualifications? 06 MS. GOUDE: Yes, it is. 07 MR. BRANDT: Now, drawing your attention to the entire 08 Exhibit 8, is that an accurate reflection of your testimony 09 here today? 10 MS. GOUDE: Yes, it is. 11 MR. BRANDT: Would you please summarize that 12 testimony. 13 MS. GOUDE: Human activity has significantly altered 14 the Delta and upstream watersheds. And these effects 15 include alteration of flows, additions of contaminants, 16 dredging, filling of wetlands, dam construction, 17 introduction of exotic species and many other human-induced 18 adverse effects. 19 These effects have resulted in the past extinction of 20 the thick-tail chub and San Joaquin spring-run salmon and 21 the disappearance of the Sacramento perch from the 22 Sacramento River and Delta systems. The Delta has 23 deteriorated also due to the reduced diversity of source 24 waters. The Delta continues to suffer from the historic 25 disproportionate reductions in Delta inflow from some of its 3159 01 tributaries, and recovery of the Delta ecosystem will 02 require some restoration of the Delta's flow patterns and 03 diversity of source waters. The Sacramento-San Joaquin 04 Delta Native Fishes Recovery Plan, published by the Service, 05 stated, "Restoration of listed species in the Sacramento-San 06 Joaquin Delta will require an integrated program to 07 reestablish spawning habitat, migration corridors and 08 rearing areas in upstream areas, the Delta, Suisun Bay and 09 Marsh. 10 Although Delta smelt live in the upper Sacramento-San 11 Joaquin Estuary, including Suisun Bay and Marsh, Delta smelt 12 depend on the watershed that feed into the Delta. You 13 cannot separate the interaction of the watersheds from the 14 Delta. As we explained in our listing decision and the 15 recovery plan, the causes of decline for Delta smelt are 16 multiple and synergistic. Delta smelt generally evolved to 17 spawn in response to both rainfall and snowmelt runoff. 18 However, one of the more important causes of the Delta smelt 19 decline has been reduction in outflows. 20 Increased upstream storage and diversion from both the 21 Sacramento and San Joaquin Rivers and tributaries have 22 reduced total outflow and high spring outflows. This is 23 especially problematic in dry and critically dry years. 24 Ecological sources and texts describe estuaries as 25 highly dynamic systems dependent on spatial and temporal 3160 01 variations in salinity, sediment loading, nutrient and 02 freshwater inflows from the contributing watersheds. This 03 estuary is no different. 04 It evolved under a flow regime that provided inflow 05 sediments and nutrients from the various watersheds, each 06 with its own unique assemblage of species and physical 07 elements. The species in the Central Valley and the Delta 08 evolved with these flows regimes and contributing elements 09 over time. 10 To forsake a given tributary would be like blocking of 11 the arteries going to the heart. With each additional 12 forsaken tributary the loss of function only grows. As 13 stated in the Service's critical habitat designation for 14 Delta smelt to maintain suitable habitat conditions for the 15 recovery of the Delta smelt, the naturally occurring 16 variability found to healthy estuarine ecosystems must be 17 preserved. 18 The critical habitat designation goes on to state that 19 the variability is needed to simulate the natural processes 20 and historic conditions. The Service's recovery plan 21 further discusses and provides a basis for adequate river 22 flows to transport Delta smelt larvae and juvenile from 23 upstream spawning areas to rearing. The plan also 24 discusses a need of anadromous fish and Sacramento splittail 25 to obtain sufficient flows from the tributary of origin to 3161 01 provide increased survival both in river and through the 02 Delta. 03 The water quality standards were developed with 04 temporal and spatial variability as part of the X2 05 standards. In addition, the X2 standard was based on the 06 contributions from the cumulative watersheds. Salmon 07 evolved with flow regimes that are represented by unimpaired 08 flows, and these flows have been greatly altered in the past 09 five decades. The standards were, again, developed with the 10 protection of salmon as well as native resident fish in 11 mind. It then follows that to protect fish in the Delta, it 12 necessitates evaluating how they are protected in 13 watersheds. To do otherwise would significantly reduce the 14 biological meaningfulness of the standards. 15 Both the designation of critical habitat for the Delta 16 smelt and subsequently the recovery plan included a need for 17 protection from local, state and federal agencies in meeting 18 the needs of Delta smelt and other fish in the estuary. 19 The recovery plan specifically states the delisting is 20 contingent on the placement of legal mechanisms and 21 interagency agreements to manage CVP, State Water Project 22 and other water users to meet recovery criteria. Currently, 23 the burden of meeting the Water Quality Control Plan has 24 fallen primarily on the CV and State Water Projects. 25 Relying only on the projects for continued contribution 3162 01 reduces flexibility to operate the system. Until roughly 02 proportional inflows are restored from throughout the 03 watershed, recovery of the Delta estuary will be 04 problematic. 05 Ideally, the share should be proportionate of the 06 unimpaired Delta inflow from each tributary. It would mimic 07 the natural hydrograph. Spreading the responsibility for 08 meeting the flow-dependent objectives in the Delta will 09 benefit the aquatic resources in the upstream watershed as 10 well as in the Delta. We now have an opportunity to 11 contribute to the recovery of the Sacramento-San Joaquin 12 Delta native fishes by requiring a fair and equitable 13 contribution of flows from all the Delta tributaries. 14 Additionally, the critical habitat designation states 15 that the spawning habitat of an eastern Delta should be 16 protected. Eastside streams, such as the Mokelumne River, 17 provide the best source to provide the needed protection of 18 the eastern Delta. For the sake of the public trust fishery 19 resources we need to call on all the tributaries for an 20 adequate contribution. 21 MR. BIRMINGHAM: Excuse me, Mr. Chairman. 22 C.O. CAFFREY: Yes, Mr. Birmingham. 23 MR. BIRMINGHAM: Up to this point of this hearing, my 24 failure to object has been interpreted by other parties as 25 the acquiescence by Westlands and San Luis Delta-Mendota 3163 01 Water Authority to deviations from the Board's hearing 02 process. I would like to observe that Ms. Goude just went 03 well beyond the scope of her written testimony. I 04 understand the Board's rules to be that the witnesses are 05 supposed to summarize the testimony that was submitted prior 06 to the commencement of the hearing. 07 I am not going to object to Ms. Goude's testimony, but 08 I want to state for the record that my failure to object at 09 this time should not be deemed as my acquiescence to some 10 other party deviating from that Board procedure. 11 C.O. CAFFREY: Thank you, Mr. Birmingham. 12 Mr. Brandt, do you have a comment? 13 MR. BRANDT: Yes, I do have a comment. We are within 14 the scope. I can show you. I can take you through, there 15 are conclusions; her testimony is about conclusions. And it 16 says, "Based on my experience." She is just backing it up, 17 she is making just a couple of points. And it is, 18 basically, that the necessity of drawing from her source 19 waters, based on her broad experience, all this other 20 experience about the delisting decision or anything else, 21 that is her experience, and that is what she is testifying. 22 It is well within the scope of her testimony that is 23 contained here in the written document. 24 C.O. CAFFREY: Thank you, Mr. Brandt. 25 Mr. Etheridge. 3164 01 MR. ETHERIDGE: I would actually make the same 02 observation as Mr. Birmingham did. I was tracking along 03 the written testimony, and there were portions of that 04 testimony that I could not find in the written testimony. 05 So, it seems to me that that oral testimony went beyond the 06 scope of the written testimony. 07 I understand the State Board's reasons for requiring 08 parties to submit written testimony in advance so all the 09 parties can look at it and develop questions based on the 10 written testimony. 11 I don't know that I would, similar to Mr. Birmingham, 12 object to that, but I do want that noted in the record. 13 C.O. CAFFREY: Thank you, Mr. Etheridge. 14 First, Mr. O'Brien and then Mr. Maddow. 15 Mr. O'Brien. 16 MR. O'BRIEN: I would like to join in the objections 17 made by Mr. Birmingham and Mr. Etheridge. I would like to 18 make a relevance objection. 19 C.O. CAFFREY: I am sorry, can you speak louder? I 20 want to hear precisely how you word it, because there is a 21 point here. 22 MR. O'BRIEN: I would like to make a relevance 23 objection, Mr. Chairman. 24 C.O. CAFFREY: The reason I said what I said is because 25 you are the first to object. That is a fine point, but Mr. 3165 01 Birmingham did not object. He was very careful in his 02 choice of words. He was making an observation for the 03 record. He was not pleased, but he did not describe it as a 04 formal objection within our regulations. And I don't 05 believe Mr. Etheridge did either. I am just pointing that 06 out. 07 Thank you. 08 MR. O'BRIEN: As I understand the notice of hearing, 09 Phase IV is limited to the issue of the various proposed 10 settlement agreements. I didn't hear anything in the 11 testimony presented by Ms. Goude about the settlement 12 agreements. It sounded to me like Phase VIII 13 testimony. And I think that type of testimony is better 14 held until we get to that part of this proceeding that deals 15 with the global issue in which that alternative is 16 appropriate. 17 In this phase of the proceeding my understanding was we 18 are going to be dealing only with the question of 19 advisability of particular settlement agreements that were 20 placed before the Board. 21 On that basis I make a relevance objection. 22 C.O. CAFFREY: Thank you, Mr. O'Brien. 23 Mr. Maddow. Then I will allow you to respond, Mr. 24 Brandt. 25 Mr. Maddow. 3166 01 MR. MADDOW: I, too, am concerned about the breadth of 02 Ms. Goude's testimony, and yet I tend to share some of the 03 remarks that Mr. Brandt made at the outset of his opening 04 statement. You, the Board, may recall my objection, which 05 were lodged in the introduction of any of East Bay MUD 06 testimony for many of the reasons that I think were touched 07 on in Mr. Brandt's opening statement and perhaps those 08 which were alluded to in Mr. O'Brien's objection. 09 So, in that regard I have a suggestion, Mr. 10 Chairman. I am not quite sure that I know how far we are 11 going to get today. I am very interested in the opportunity 12 to cross-examine Ms. Goude in regard to those portions of 13 her written testimony which deal with one of the settlement 14 agreements which is -- one of the proposed settlements which 15 is a subject of Phase IV. But I suspect that we may not get 16 to rebuttal in this phase today. 17 If that's the case, I would like to request that Ms. 18 Goude's testimony which was entered today be marked for 19 identification and served on all of the parties. And, 20 perhaps, one way to get at this would make her subject to 21 cross-examination at the beginning of the rebuttal phase on 22 this material which has just been provided to us in her oral 23 testimony today. Or, perhaps, it would give rise to 24 rebuttal evidence which might be submitted by other 25 parties. 3167 01 C.O. CAFFREY: Thank you, Mr. Maddow. 02 Did we get everybody? 03 Mr. Sexton. 04 MR. SEXTON: Mr. Caffrey, I am going to object to the 05 Ms. Goude's testimony as being inconsistent with the opening 06 statement of Mr. Brandt on behalf of the Department of 07 Interior. Mr. Brandt made it very clear that the Interior's 08 position was a position that said Delta responsibility 09 should be allocated based on the water right priority system 10 in large part. If I copied down from Ms. Goude's testimony 11 correctly, I think she used the words "such as a fair and 12 equitable sharing among all tributaries." That is certainly 13 not a water right priority system. 14 C.O. CAFFREY: Thank you, Mr. Sexton. 15 Mr. Brandt, do you wish to respond, sir? 16 MR. BRANDT: Yes. I will try to take it one by one. 17 On Mr. O'Brien's objection, first on the issue of 18 scope. I'd be happy to step through and take the written, 19 what she just gave orally, and go through where it fits in 20 in each point. 21 C.O. CAFFREY: Let me ask you: Do you mean by that 22 that you would represent her direct testimony in a question 23 and answer forum? I am not sure I understand. Or explain 24 it. 25 MR. BRANDT: I am just explaining that I would be happy 3168 01 to do that if you'd like me to. 02 The other option is I would be happy to do what Mr. 03 Maddow suggests, which is we could -- I need to get a copy 04 of that. We could probably get a copy of that and put it 05 together and put it out. That is another option. 06 On the relevance issue, this is relevant because she is 07 -- first of all, her testimony does relate partly to the 08 Mokelumne MOU. Secondly, it provides context for why she is 09 making the comments on reaching the conclusions on the 10 Mokelumne agreement that she is. 11 Also, another part of the notice is that it is a role 12 of USBR and DWR in those agreements. So to the extent that 13 she is talking about what the role should be of her sister 14 agency, which is USBR, she is talking about biologically 15 what role they need to play in backstopping in these 16 agreements. That is why it is very relevant to the 17 agreements that are being presented as well as, more 18 generally, to agreements that are possibly out there. 19 C.O. CAFFREY: Let me offer the following observation, 20 not a ruling, but an observation. Then we are going to go 21 off the record and have a little discussion with counsel and 22 with my cohearing officer. 23 One observation, as I recall our written communications 24 to the parties, is that with this phasing process and the 25 taking of evidence, it is not always clear that there will 3169 01 be one phase that is most appropriate for the presentation 02 of your evidence. 03 To that I would add the following, that it is possible, 04 if we ever get to that bridge point where we figure out how 05 we go from phased evidence taking to phased decision making, 06 if there is such a thing. If that were to occur and we 07 could do that, it is possible that there would not be a 08 Phase VIII. Therefore, the question and the dilemma for 09 Mr. Brandt becomes, what phase, where do I present this 10 case? 11 So, we are going to go off the record in a moment, 12 have some discussion on that and see where we might take 13 this. I appreciate Mr. Maddow's suggestion. I appreciate 14 Mr. Brandt's mention of the options. And we have several 15 people standing. Maybe I put my foot in my mouth. Let's 16 see. 17 MR. BRANDT: I also forgot to respond to Mr. Sexton's 18 comments. 19 C.O. CAFFREY: Go ahead, respond to Mr Sexton, and then 20 we will -- 21 MR. SEXTON: Freudian slip on the United States part. 22 C.O. CAFFREY: Go ahead, Mr. Brandt. Then we will go 23 to the other gentlemen. 24 MR. BRANDT: The explanation is just that this is -- my 25 opening statement was a policy statement. By the way, I 3170 01 will be happy to past this around. The policy statement to 02 where we come out in the middle. 03 Ms. Goude is testifying as a biologist as to what the 04 fish need. She may be in a different position for what the 05 facts are of what the fish need or those kind of things, 06 than what the ultimate policy of where our judgment call 07 is. She is supporting it because it is a key point of it is 08 still important that all the watersheds contribute. 09 C.O. STUBCHAER: Question. 10 C.O. CAFFREY: Mr. Stubchaer has a question. 11 C.O. STUBCHAER: Does that then mean that the 12 Department of the Interior is not going to present a unified 13 position for this Board? 14 MR. BRANDT: It is, in fact. This is biological 15 testimony that really does support that we need to go to all 16 watersheds, and that is a key part of why we are saying 17 priorities throughout all the watersheds. It may not get as 18 far as from the biological point of view they need to get 19 to, but we are presenting a unified position. This 20 actually has become the unified Department of the Interior 21 position. So, we will be presenting a unified position. 22 C.O. STUBCHAER: I look forward to your closing 23 statement. 24 C.O. CAFFREY: I am not sure I do. 25 MR. BRANDT: As do I. 3171 01 C.O. CAFFREY: Let me see what we have here. We had 02 some people stand up, sit down. Mr. Birmingham. I think 03 Mr. Nomellini was first, then, I think, Mr. Jackson and Mr. 04 Birmingham again. Then we will go off the record. 05 MR. NOMELLINI: Dante John Nomellini for Central Delta 06 parties. 07 I hate to do this, since one of my principal 08 adversaries is being attacked, and I agree with him on his 09 position. Not that I agree with his positions, but on this 10 particular issue. Cay Goude's statement, which I looked 11 through carefully, clearly focuses in on East Bay MUD 12 Settlement Agreement. If you just take a look at it before 13 you go into your deliberations or when you do, I think you 14 should, it is absolutely clear it is a deal with the 15 settlement agreement of East Bay MUD and explains as to why 16 they think more should be required of them because it only 17 -- the agreement only dealt with the needs of the river, not 18 the Delta. Whether you agree or not, that is clear they 19 have a legitimate position on that, in terms of the other 20 aspects of the explanation of the contribution from the 21 various watersheds, and I think if you look at her statement 22 it also deals with those. 23 And the opening statement aspect, we've argued before. 24 As to whether or not you were going to keep people strictly 25 in a narrow position on opening statements, in all fairness, 3172 01 we have allowed that to proceed in the past in a fairly 02 broad way, and I think it would be wrong to tighten it up at 03 this time. 04 As far as additional cross-examination, you know, if 05 somebody feels it is unfair, to spring this on them. I 06 don't consider it springing it on us, from what I have seen. 07 If there is any feeling like that, an additional opportunity 08 for cross-examination after deliberation on the testimony 09 would solve that problem. And I don't think we do much by 10 cutting this thing up. And, again, you've pointed out the 11 phasing of this thing is not perfect. 12 C.O. CAFFREY: I don't know, not perfect. You are 13 entitled to your interpretation, Mr. Nomellini. 14 MR. NOMELLINI: That is my comment. 15 C.O. CAFFREY: Thank you, sir. 16 Mr. Jackson. 17 MR. JACKSON: My life's ambition as a lawyer is to 18 respond to Mr. Brandt's opening statement. 19 C.O. CAFFREY: Of course, you are going to respond to 20 the -- 21 MR. JACKSON: To do that, because it was mostly a 22 totally twisted view of the California priority system which 23 left out the area of origin. I can't possibly beat up these 24 two witnesses. So, I think the basic problem is that 25 Interior just dropped a bomb in their opening statement. 3173 01 And now I want to know who and where the witnesses are that 02 will make the reasonable use argument, the area of origin 03 argument, the mitigation arguments. They are not in any of 04 the testimony I have seen so far. 05 So, I don't care when we start Phase VIII, but that 06 opening statement was the start of Phase VIII, as far as I 07 can tell. So, if we go forward to do it now, since what we 08 just heard in both the opening statement and the testimony 09 is as directly relevant to the San Joaquin River and the 10 Sacramento River and the Yuba River and the American River, 11 all of which have Bureau facilities. 12 So do I start doing the Sacramento and the American and 13 the San Joaquin and the Yuba in this hearing? And if I do, 14 most of my opponents are not in the room and don't have any 15 idea we are going to be doing that, and it doesn't seem fair 16 to me. If we are going to talk only about the Mokelumne, 17 this is the place to do it. But if we are going to talk 18 about fair shares from all of the rivers and unreasonable 19 use and public trust, there is a whole bunch of people who 20 want to be here for that one who are not here today. 21 C.O. CAFFREY: Thank you, Mr. Jackson. I note your 22 continuing frustration with Phase VIII, whatever it may 23 be. 24 I believe Mr. Birmingham stood. 25 MR. BIRMINGHAM: I apologize for having opened this can 3174 01 of worms. 02 C.O. CAFFREY: I have to observe that we haven't had 03 one of these sessions for at least a couple weeks. 04 Actually, I find it rather stimulating. It's all done in 05 good spirit. 06 Please, Mr. Birmingham. 07 MR. BIRMINGHAM: Thank you, Mr. Chairman. 08 I agree with what Mr. Brandt's observation is, that 09 everything Ms. Goude said related to a point that is made in 10 her testimony. But my comment was related to fact. As I 11 understand the Board's notice, it requires that the full 12 written testimony or the full testimony be submitted in 13 writing, and that the oral statement will be a summary of 14 what was submitted in writing as opposed to an expansion of 15 what was submitted in writing. 16 Again, I am not objecting to anything that Ms. Goude 17 said, nor am I objecting to anything that Mr. Brandt said in 18 his opening statement. Prior rulings of the Board, I think, 19 made it clear that an opening statement can expand on 20 policy, as well as the facts that are going to be 21 presented. 22 I only rose to make it clear that I may in the future 23 object if someone follows that same practice, expanding 24 rather than summarizing written testimony. 25 C.O. CAFFREY: Thank you, Mr. Birmingham. 3175 01 We are going to go off the record for few minutes now 02 and I am going to ask Ms. Leidigh to join Mr. Stubchaer and 03 myself up here. 04 Thank you. 05 (Discussion held off record.) 06 C.O. CAFFREY: We are back on the record. Here we 07 are. Here is the ruling. 08 If you look at the Board's description of what is 09 appropriate for Phase IV, the testimony that Ms. Goude gave 10 is within that scope. Unfortunately, it is outside the 11 scope of what Ms. Goude had submitted as her direct 12 testimony evidentiary exhibit. Therefore, the ruling is 13 that it was an inappropriate testimony submittal, so to 14 speak. We are going to strike her testimony, and we are 15 going to afford you the opportunity now, Mr. Brandt, for her 16 to represent her direct testimony within the scope of the 17 submission of her evidentiary exhibit. 18 I have a question -- let's go off the record for a 19 moment. 20 (Discussion held off record.) 21 C.O. CAFFREY: It means that Ms. Goude was never here 22 until this very moment now. 23 MR. BRANDT: Can we start, "Will you please summarize 24 your testimony"? 25 C.O. CAFFREY: You can skip the identification of her 3176 01 profession and all that in the record and then we will 02 strike from there and start over at that point. 03 MS. GOUDE: Through years of experience in research, 04 as it relates to the Delta and endangered species, I have 05 come to the conclusion that you need contributions from 06 various watersheds. That has been presented in numerous 07 published documents, which includes Critical Habitat 08 Designation for Delta Smelt that was published in the 09 Federal Register. It includes the information, the listing 10 of the Delta smelt, and it also is included in the Recovery 11 Plan for the Sacramento-San Joaquin Delta Native Fishes, 12 which included other species than Delta smelt, such as the 13 Sacramento splittail, the longfin smelt and the San Joaquin 14 fall-run. 15 All of these actions and information discuss the need 16 for contributions from the various watersheds in a fair and 17 equitable share based to mimic the natural hydrograph of the 18 system. It also talks about that there needs to be legal 19 mechanisms that are enforceable to deal with the various 20 contributions from various watersheds to deal with delisting 21 and actions, if you ever get to do that. 22 To me, that is the ultimate goal is to delist the 23 species, not because it is extinct, but because it is 24 recovered throughout its system. 25 One of the reasons that I am writing all these issues 3177 01 up is as it relates to the East Bay MUD agreement. 02 Basically, it does not provide, in my opinion, the 03 contribution needed from that watershed in the overall 04 perspective of what you are looking at. The Fish and 05 Wildlife Service did do a biological opinion, a Section 7 on 06 the FERC license. In that we pointed to the State Board 07 proceedings as the mechanism to provide the necessary flow 08 that would contribute to the Delta systems and ecosystems. 09 So, we did not portray that FERC biological opinion in our 10 intent as that was the water that dealt with the needs for 11 the Delta system. 12 Again, there has been -- if you rely just on state 13 water projects and the federal water projects, as we have in 14 the past under operations of the OCAP opinion, we are very 15 deficient on the east side streams on providing the 16 necessary flow. And those flows and information has been 17 discussed, again, in the critical habitat and the recovery 18 plan. 19 That concludes my statement. 20 C.O. CAFFREY: Thank you. 21 MR. BRANDT: Mr. Guinee, would you please state your 22 name for the record and spell your last name. 23 MR. GUINEE: My name is Roger Guinee. It is spelled 24 G-u-i-n-e-e. 25 MR. BRANDT: Mr. Guinee, I am going to hand you 3178 01 Department of Interior Exhibit Number 9. I would like to 02 draw your attention to Exhibit Number 9A. 03 Is Exhibit 9A an accurate reflection of your 04 qualifications? 05 MR. GUINEE: Yes, it is. 06 MR. BRANDT: Is Exhibit 9 as a whole, including the 07 attachments, an accurate reflection of your testimony here 08 today? 09 MR. GUINEE: Yes, it is. 10 MR. BRANDT: Thank you. 11 Can I also -- I would just like to clarify before we 12 get on. We have the exhibits that he has attached to his 13 testimony on, we have -- they are graphs. What we have done 14 for the ease of everyone is added the numbers that are 15 actually on those graphs down below. We've got enough 16 copies to pass around, and we can do that if that is 17 necessary, if people need. So, for the overheads will be 18 those exhibits with the number. We've got those, and I can 19 enter those in if you want to do that at this time or when 20 we get to that point. 21 C.O. CAFFREY: In other words, they are not numbered as 22 attachments in the original submission; is that what you are 23 saying? And now you have numbers for them? 24 MR. BRANDT: They are -- no, they are numbered as 25 attachments, but there is some additional information on 3179 01 these attachments. They are -- the graph is the same. It 02 is just that the numbers are now added. 03 C.O. CAFFREY: When we get them up there, we may just 04 -- if the others are already in the record, maybe these are 05 in addition. 06 MR. BRANDT: Ms. Whitney suggested we call them just 07 the amended exhibits. We will give them the same numbers, 08 just be the modifying. 09 C.O. CAFFREY: Okay. 10 MR. GUINEE: Thank you. 11 To summarize my testimony, I compared the proposed 12 flows in Mokelumne Memorandum of Understanding to the 13 Alternative 5 flows in Table II-7 of the State Board's Draft 14 Environment Impact Report. Now, the Draft Environmental 15 Impact Report acknowledges that the model results for 16 Alternative 5 are a useful indicator of trends and water 17 supply impacts. 18 So, my comparisons was intended to provide a useful 19 indicator of trends in river flows, potential Delta inflow 20 and potential benefits for fishery resources. 21 As Mr. Brandt said, the first overhead is my Exhibit 22 9B. But for today's presentation I have added the numbers 23 at the bottom of the exhibit in case questions come out. 24 But I do want to indicate that I am just looking at general 25 trends. Essentially, in looking at the general trends for 3180 01 Alternative 5 flows, you can see that they provide 02 significantly greater flows which would be better for 03 anadromous fish downstream of Woodbridge Dam than the 04 Mokelumne MOU flows. This is especially true in the spring 05 of critically dry years, which is the two lines or the third 06 and fourth line. 07 Now, I also did the same sort of analysis for the Yuba 08 River where I compared the Alternative 5 flows in Table II-7 09 of the Board's Draft Environmental Impact Report and found 10 that they provide significantly greater flows, also better 11 for anadromous fish, downstream of Daguerre Dam than the 12 existing minimum flows. In the April workshop the Yuba 13 River Agreement had not provided a schedule, so I used the 14 '65 agreement flows for that comparison. And I also have up 15 there the Fish and Game's Yuba River report flows, as well 16 as the unimpaired flows. I should mention the bottom line 17 there. 18 C.O. CAFFREY: Did we identify these exhibits for the 19 record? 20 MR. GUINEE: This is Exhibit is 9C. 21 MR. JACKSON: Mr. Caffrey, I've got an objection. 22 C.O. CAFFREY: Mr. Jackson. 23 MR. JACKSON: I do not represent Yuba County Water 24 Agency. Yuba County is a member of RCRC. Their lawyers are 25 not present here, did not know that there was going to be 3181 01 any Yuba River information. 02 MR. BRANDT: It is in the testimony. 03 MR. JACKSON: This is in the testimony? 04 C.O. CAFFREY: This is in the exhibit. 05 MR. JACKSON: All right. 06 C.O. CAFFREY: Thank you, sir. 07 Please proceed, Mr. Brandt. Mr. Guinee. 08 MR. GUINEE: Thank you. 09 So, essentially, that summarizes my testimony, and I 10 want to add that, in my opinion, it is important that the 11 Board consider how improved flows in the Mokelumne and Yuba 12 Rivers will assist the Delta's recovery by helping to meet 13 the Board's Bay-Delta Water Quality Control Plan, as well as 14 contribute toward meeting the Board's narrative salmon 15 objective. 16 Thank you. 17 C.O. CAFFREY: That completes the direct, Mr. Brandt? 18 MR. BRANDT: Yes, Mr. Chairman. 19 C.O. CAFFREY: By a showing of hands, how many of the 20 parties wish to cross-examine these witness? 21 Mr. Jackson, Mr. Maddow, Mr. Nomellini, Mr. Etheridge, 22 Mr. Birmingham, Mr. Gallery, Mr. Garner. 23 MR. O'BRIEN: Mr. Caffrey, could I simply note for the 24 record that I would like to reserve cross-examination of 25 these witnesses until Phase VIII? I understand from Mr. 3182 01 Brandt that these witnesses will be available in Phase 02 VIII. 03 MR. BRANDT: That is correct, your Honor. We will make 04 those available, based on a request. If you decide later 05 that you want to have them up, we request that you put it in 06 a request. 07 C.O. CAFFREY: Duly noted, Mr. Brandt. 08 Mr. Jackson first. 09 MR. JACKSON: Mr. Caffrey, I would like to add Mr. 10 Lilly's name to the list of cross-examiners. We probably 11 won't get to him until the 15th. I would like him on the 12 list. 13 C.O. CAFFREY: What you are really asking is to provide 14 him the same courtesy as -- you want to cross-examine? 15 MR. JACKSON: Put him on the list. 16 C.O. CAFFREY: He's on the list. 17 MR. JACKSON: That is all I want. You are not going to 18 get to him because you may not get past me. 19 C.O. CAFFREY: And they say that the hearing officers 20 control these hearings. We are going to have to do 21 something about this due process concept. 22 Mr. Johnston, go ahead. 23 MR. JOHNSTON: Mr. Brandt offered to distribute copies 24 of the graphs, and I would appreciate that. 25 C.O. CAFFREY: Thank you, Mr. Brandt. 3183 01 Let me read the names of the cross-examiners in the 02 order that we will go. Make sure -- just wait until 03 everybody sits down. It's a little hard to tell who is 04 standing for what reason. 05 I will read the names of the cross-examiners. Let me 06 know if I left anybody out. 07 Mr. Jackson, Mr. Maddow, Mr. Nomellini, Mr. Etheridge, 08 Mr. Birmingham, Mr. Gallery, Mr. Garner and Mr. Lilly. 09 Have I left anybody out? 10 Mr. Campbell. Put you down as well, sir. 11 Mr. Jackson. 12 ---oOo--- 13 CROSS-EXAMINATION OF DEPARTMENT OF THE INTERIOR 14 BY RURAL COUNCIL OF RURAL COUNTIES 15 BY MR. JACKSON 16 MR. JACKSON: Ms. Goude, I believe from your testimony 17 you indicated that you believe, as a biologist, it is 18 necessary to have flow from all streams tributary to the 19 Delta; is that correct? 20 MS. GOUDE: I would say that what I was indicating is 21 you would have to look at, when I said "fair," you would 22 have to look at the actual stream in the hydrograph and try 23 to mimic it and look at the system in the biological needs. 24 MR. JACKSON: When you use the word "fair," are you 25 talking about biologially or legally fair? Or what do you 3184 01 mean by the word "fair"? 02 MS. GOUDE: I think there is a lot of meanings for 03 "fair," but what I am looking at is what is also reasonable 04 and biologically sensible. You wouldn't necessarily ask for 05 something that would not contribute or make an ecological 06 addition to the system. 07 MR. JACKSON: In determining what would be the fair 08 share of any tributaries, have you done individual studies 09 on each of the rivers tributary to the Delta? 10 MS. GOUDE: Could you repeat that. 11 MR. JACKSON: Have you done individual studies to 12 determine what would be fair on all of the tributaries 13 leading to the Delta? 14 MS. GOUDE: No, I have not. 15 MR. JACKSON: To your knowledge, has anyone else at the 16 United States Fish and Wildlife Service? 17 MS. GOUDE: There have been some studies done on 18 certain streams through other programs, but I am not the 19 expert on those, the AFRP actions or some of those other 20 studies. 21 MR. JACKSON: So, you do not feel qualified to testify 22 to the AFRP flows? 23 MS. GOUDE: Correct. 24 MR. JACKSON: Now calling your attention to the -- you 25 talked about the diminished inflow from the tributaries as a 3185 01 potential cause to the decline of some species -- 02 MS. GOUDE: That's correct. 03 MR. JACKSON: -- in the Delta? 04 What species in the Delta are affected by diminished 05 flows in the tributaries? 06 MS. GOUDE: I think it depends on which -- it is kind 07 of a fairly general statement. But there are certain 08 species, such as Sacramento splittail, that are proposed for 09 federal listing that have been affected. Obviously Delta 10 smelt have some effects, as it relates on the east side, and 11 is a threatened species, and a number of salmon stock. 12 MR. JACKSON: What salmon stock are you considering in 13 your consideration of what the fair share contributions 14 ought to be? 15 MS. GOUDE: I think that what you need to do is look at 16 the analysis as a whole and from all the different systems 17 in the salmon stock that have had difficulty, obviously, are 18 the winter-run and the San Joaquin fall-run as well as the 19 various spring-run salmon and steelhead. 20 MR. JACKSON: Let's start with the winter-run salmon. 21 In a state of nature, where did the winter-run Sacramento 22 River salmon spawn? 23 MS. GOUDE: I really am not the one -- I do not 24 administer or deal with the anadromous fish as it relates to 25 endangered species actions. I deal with mainly the nature 3186 01 fishes that rear in the Delta and resident. But they did 02 historically spawn above Shasta. 03 MR. JACKSON: So it was -- 04 MS. GOUDE: So, I am limiting; my knowledge is not the 05 best on all the salmon stocks. 06 MR. JACKSON: But it is clear from your knowledge that 07 the winter-run salmon originally spawned above Shasta, 08 correct? 09 MS. GOUDE: Yeah, that is correct. 10 MR. JACKSON: What keeps them from spawning above 11 Shasta now? 12 MS. GOUDE: Shasta. 13 MR. JACKSON: Who owns it? 14 MS. GOUDE: Bureau of Reclamation I guess owns it, 15 Department of Interior. 16 MR. JACKSON: Does the United States Fish and Wildlife 17 Service have any information or evidence that evaluates the 18 effects of the building of Shasta on the Sacramento 19 winter-run salmon? 20 MS. GOUDE: There has been numerous studies as it 21 relates to, not just Shasta, but Red Bluff Diversion Dam in 22 various other actions as well as actions within the Delta, 23 including the cross channel. 24 MR. JACKSON: Who owns the Red Bluff Diversion Dam? 25 MS. GOUDE: I really don't know. I would assume the 3187 01 Bureau of Reclamation, Department of Interior. 02 MR. JACKSON: Who owns the cross-channel gate? 03 MS. GOUDE: Bureau or Department of Interior. 04 MR. JACKSON: Moving now to the Sacramento spring-run 05 salmon. Where did the Sacramento spring-run salmon spawn 06 and rear in a state of nature? 07 MS. GOUDE: I think Mr. Guinee would be best to answer 08 that. 09 MR. JACKSON: In terms of these questions, either of 10 you who feels comfortable. 11 MR. GUINEE: Would you repeat the question. 12 MR. JACKSON: In a state of nature, where did the 13 Sacramento spring-run salmon spawn and rear? 14 MR. GUINEE: Historically, Sacramento spring-run 15 chinook salmon spawned and reached upstream of Shasta Dam. 16 MR. JACKSON: Was there any spring-run habitat in a 17 state of nature on the Sacramento River below Shasta 18 Dam? 19 MR. GUINEE: Prior to the construction of the dam, the 20 evidence suggests that no spring-run chinook spawned below 21 Shasta dam. 22 MR. JACKSON: Calling your attention to the Sacramento 23 River splittail, where did that fish spawn and rear in a 24 state of nature? 25 MS. GOUDE: It spawned and still is spawning and 3188 01 rearing up through the Delta system and up in portions of 02 the Sacramento River into portions of the San Joaquin 03 system. 04 MR. JACKSON: Calling your attention to the Delta 05 smelt, where in the state of nature did that fish spawn and 06 rear? 07 MS. GOUDE: Basically, where we designate a critical 08 habitat was within, through the legal Delta. 09 MR. JACKSON: Now, calling your attention to the 10 steelhead, where did that fish on the Sacramento River spawn 11 and rear in a state of nature? 12 MR. GUINEE: Again, prior to the construction of Shasta 13 Dam, most of the steelhead in the Sacramento system migrated 14 upstream of where Shasta Dam currently is and spawned. 15 MR. JACKSON: Where does the Sacramento River 16 winter-run salmon presently spawn and rear? 17 MR. GUINEE: Presently most of the Sacramento River 18 winter-run chinook salmon spawn in the Sacramento River 19 downstream of Keswick, generally as far as about Ben Bridge 20 or the upper reach of Red Bluff with some fish still 21 spawning downstream of Red Bluff Diversion Dam. 22 MR. JACKSON: Does the winter-run salmon appear 23 anywhere in the Sacramento drainage with the exception of 24 below the face of Shasta Dam? 25 MR. GUINEE: That is a possibility. 3189 01 MR. JACKSON: It's a possibility it rears somewhere 02 else? 03 MR. GUINEE: I am not a winter-run chinook salmon 04 expert, but there have been reports of winter-run in Battle 05 Creek. 06 MR. JACKSON: Now, were there reports of winter-run in 07 Battle Creek before the building of Shasta Dam? 08 MR. GUINEE: Not that I am aware of. 09 MR. JACKSON: Would it be fair to say, then, that the 10 building of Shasta Dam by the Bureau of Reclamation 11 extirpated the natural habitat of the Sacramento winter-run 12 salmon? 13 MR. BIRMINGHAM: Object to the question on the grounds 14 it is ambiguous. 15 C.O. CAFFREY: Want to try the question a little more 16 specifically, Mr. Jackson, unless you disagree with the 17 comment. 18 MR. JACKSON: Well, I am trying to figure out which 19 word was ambiguous. 20 UNIDENTIFIED VOICE: How about "extirpated? 21 C.O. CAFFREY: I won't embarrass some of us by asking 22 for a definition. 23 MR. JACKSON: I will change that word, then. 24 MR. BIRMINGHAM: My objection related to the term of 25 "habitat." Mr. Jackson has been asking about spawn habitat. 3190 01 I wonder if he could further define the use of the term 02 "habitat" in his question. 03 MR. JACKSON: Certainly. 04 C.O. CAFFREY: Thank you, Mr. Jackson. 05 MR. JACKSON: Was there -- in the state of nature was 06 there any spawning and rearing habitat for the winter-run 07 salmon in the main stem of the Sacramento River below what 08 is presently Shasta Dam? 09 MR. GUINEE: Again, as I responded earlier, prior to 10 the construction of Shasta Dam there is evidence to show 11 that winter-run chinook salmon spawned in that reach of 12 river below Shasta. 13 MR. JACKSON: Is it, then, fair to say that the natural 14 habitat for the Sacramento winter-run salmon has been 15 eliminated completely by the building of Shasta Dam? 16 MS. GOUDE: I will answer that. The point is that 17 they're still spawning. They may have moved where they were 18 spawning, but there is still habitat. So the definition of 19 natural is where they are actually spawning today. 20 MR. JACKSON: In other words, we are writing off all of 21 the habitat above the dam forever? 22 MR. BRANDT: Objection. Argumentative. 23 MR. JACKSON: Are we writing off the habitat of the 24 Sacramento River winter-run salmon above Shasta Dam 25 permanently? 3191 01 MR. BRANDT: I am going to continue to object as to 02 who is "we writing off." Vague. 03 MR. JACKSON: I will do it again. 04 Is the United States Fish and Wildlife Service deciding 05 that the natural habitat above Shasta Dam is no longer part 06 of any recovery plan for the winter-run salmon? 07 MS. GOUDE: Let me answer that. The Fish and Wildlife 08 Service does not have the regulatory authority over a 09 anadromous fish, and National Marine Fishery Service, in 10 fact, is doing and is in the throws of trying to prepare a 11 recovery plan. That would be best answered of what they 12 view as a recovery action. 13 MR. JACKSON: Thank you. 14 Calling your attention to the spring-run salmon, on the 15 Sacramento drainage, were there other places that the 16 spring-run existed other than above Shasta Dam on the 17 Sacramento River? 18 MR. GUINEE: Yes, there were. 19 MR. JACKSON: Where were they? 20 MR. GUINEE: In most of the tributaries to the 21 Sacramento River that spring-run could migrate during high 22 spring flow and spawn in the fall, such as Mill Creek, Deer 23 Creek, Butte Creek, streams like that. 24 MR. JACKSON: Are there any reports of them spawning in 25 the county in which I live, Plumas, on the Feather River? 3192 01 MR. GUINEE: As I understand it, they did historically 02 migrate up the Feather River, as well. 03 MR. JACKSON: What stops them from migrating up the 04 Feather River today? 05 MR. GUINEE: I believe Oroville Dam does. 06 MR. JACKSON: Who owns the Oroville Dam? 07 MR. GUINEE: My understanding is the Department of 08 Water Resources. 09 MR. JACKSON: Were there steelhead that migrated up the 10 Feather River beyond the present location of the Oroville 11 Dam? 12 MR. GUINEE: Yes. I think there is evidence that shows 13 that steelhead migrated up the Feather River. 14 MR. JACKSON: Is there any of the original steelhead 15 spawning and rearing habitat below Oroville? 16 MR. GUINEE: My understanding is that prior to the 17 construction of Oroville most of the steelhead spawning, 18 actually all of the steelhead spawning, was upstream of that 19 site. So, I am not aware of steelhead spawning downstream 20 of Oroville prior to the dam. 21 MR. JACKSON: On the American River, were there 22 spring-run salmon in a state of nature? 23 MR. GUINEE: Yes. 24 MR. JACKSON: Was there any spring-run spawning habitat 25 below the present location of Folsom Dam, or Nimbus Dam, 3193 01 excuse me? 02 MR. GUINEE: Again, my understanding is that prior to 03 the construction of Folsom Dam, spring-run did not spawn 04 downstream of the Nimbus site. 05 MR. JACKSON: Who owns the Nimbus Dam? 06 MR. GUINEE: Excuse me, let me correct that. Prior to 07 construction of Nimbus Dam, steelhead did not spawn 08 downstream of Nimbus. 09 MR. JACKSON: Who is the owner of the Nimbus Dam? 10 MR. GUINEE: I believe U.S. Bureau of Reclamation, 11 Department of Interior. 12 MR. JACKSON: On the San Joaquin side in a state of 13 nature were their spring-run salmon in the San Joaquin River? 14 MR. GUINEE: Yes, there were. 15 MR. JACKSON: Were there spring-run salmon on the 16 Stanislaus River? 17 MR. GUINEE: Yes, there were. That is my 18 understanding. 19 MR. JACKSON: Was there any spawning for spring-run 20 salmon below the site of New Melones Dam? 21 MR. GUINEE: As far as the Stanislaus, I am not 22 specifically sure where the downstream boundary for 23 spring-run chinook spawning occurred. It may have been 24 downstream of New Melones, but I am not sure. 25 MR. JACKSON: Who owns New Melones? 3194 01 MR. GUINEE: That one I am not sure of. It may have 02 been a Corps of Engineer ownership, but it is operated by, I 03 believe -- I am not sure. 04 MR. JACKSON: Okay. Were there spring-run salmon on 05 the San Joaquin drainage? 06 MR. GUINEE: Yes, there were. 07 MR. JACKSON: Do the spring-run salmon have access to 08 their original habitat on the San Joaquin? 09 MR. GUINEE: In the main stem San Joaquin, no, they do 10 not. 11 MR. JACKSON: Why not? 12 MR. GUINEE: There is a dam that blocks their access to 13 the historical spawning grounds. 14 MR. JACKSON: What dam is that? 15 MR. GUINEE: I have to say Friant, although there is a 16 Delta-Mendota Dam, too. I am not sure to what extent that 17 blocked passage. 18 MR. JACKSON: Was there any natural spawning for 19 spring-run salmon below the present site of Friant Dam? 20 MR. GUINEE: Again, my understanding is before the 21 construction of Friant spring-run did not spawn downstream 22 of that site. 23 MR. JACKSON: Who owns the Friant Dam? 24 MR. GUINEE: I believe it is the Bureau of Reclamation, 25 Department of Interior. 3195 01 MR. JACKSON: So, is it fair to say that there has been 02 a substantial alteration of the original spawning and 03 rearing habitat for the chinook salmon species in the 04 Sacramento-San Joaquin Delta? 05 MS. GOUDE: Yes. 06 MR. JACKSON: And is it also fair to say that the 07 majority of the alteration of the natural habitat of the 08 spring-run salmon in the San Joaquin-Sacramento watershed 09 was caused by the Department of the Interior? 10 MR. BRANDT: Objection. Vague as to majority of fish, 11 water, majority of rivers. 12 MR. JACKSON: Is it -- I will withdraw it. 13 Is it fair to say that the salmon runs on the 14 Sacramento River, the American River, the Stanislaus River 15 and the San Joaquin River have been greatly altered by the 16 Bureau of Reclamation's building dams on those rivers? 17 MS. GOUDE: Those runs, as well as other fish, have 18 been affected by numerous factors, as I testified earlier, 19 including building dams and reoperation of systems. 20 MR. GUINEE: And I would add to that that spring-run 21 chinook historically occurred on the Merced River, Mokelumne 22 River, Tuolumne River, Yuba River, as well. 23 MR. JACKSON: That is the upstream effect to the 24 salmon, correct, the building of dams; is that fair to say? 25 MS. GOUDE: That is not the only effect, as I said 3196 01 previously. 02 MR. JACKSON: But it is one? 03 MS. GOUDE: Correct. 04 MR. GUINEE: One of many. 05 MR. JACKSON: Would you name the others. 06 MS. GOUDE: Can I limit some of those? We'd be here 07 quite a while. 08 MR. JACKSON: We've got quite a while. 09 C.O. CAFFREY: Excuse me, Mr. Jackson. If you like, I 10 can give you this. 11 MR. JACKSON: I am sorry, sir. 12 C.O. CAFFREY: That was the gavel, by the way, folks. 13 MR. JACKSON: You have offered to give me that before, 14 but not in the same friendly way. 15 C.O. CAFFREY: There is a limit. It has to stay 16 relevant; we all know that. 17 MR. JACKSON: Mr. Caffrey, the opening statement of Mr. 18 Brandt indicated that they believed that there are public 19 trust reasons that there has to be appreciable flow from 20 each of the drainages. I am trying to go through which 21 drainages the federal government is responsible for with 22 these federal witnesses. 23 C.O. CAFFREY: I am interpreting your question, by the 24 way, Mr. Jackson, to Ms. Goude to be a solicitation of some 25 of the other causes, not necessarily an iteration of 3197 01 everything on the planet. 02 MS. GOUDE: Well, let's see. I would say it is 03 reduction of changes of hydrology within the system, 04 diversion of water, conversion of riparian and wetland 05 habitat, levee building, construction of urbanization, 06 contaminant inflow, storm water inflow. Let's see. And 07 there is agricultural diversions throughout the system, 08 including on the rivers within the Delta, and, obviously, 09 the Central Valley Project, the State Water Projects 10 themselves. 11 MR. JACKSON: Now, in terms of the upstream habitat for 12 chinook salmon, is it also one of the reasons for the 13 decline in the fish, in your opinion, that they can no 14 longer get to habitat that naturally is able to take care of 15 them? 16 MS. GOUDE: That is one of the issues, but the issue 17 you have to look at the entire life stage of the 18 species. And it is not enough that you just manage to get 19 them to a spawning area. They also have to out-migrate and 20 get to sea and then come back again. So, basically, you 21 have to think of the entire life cycle of the fish and not 22 segment out that portion. 23 MR. JACKSON: Let's do that. 24 When the fish leave the spawning area and begin to go 25 downstream, are they affected by the operation of the state 3198 01 and federal pumps in the Delta? 02 MS. GOUDE: That is one of the effects. You also have 03 to -- let's see. If they're coming up the Sacramento River, 04 there is quite a few affects that are going on all the way 05 down the Sacramento River before they even get to the 06 Delta. 07 MR. JACKSON: We will get to those. You will admit 08 that one of the effects on the Sacramento chinook salmon is 09 the operation of the federal pumps? 10 MS. GOUDE: As I stated previously, I listed that as 11 one of the effects, yes. 12 MR. JACKSON: Is there any major affect that you know 13 of on the salmon in the Delta that is not caused by the 14 alteration of the hydrology caused by pumping in the South 15 Delta? 16 MS. GOUDE: Could you restate that because that is a 17 fairly broad question. 18 MR. JACKSON: Let me try it again. 19 C.O. CAFFREY: Let me interrupt, if I could, for a 20 moment, Mr. Jackson. Probably isn't going to be a good time 21 to interrupt you in terms of your train of thought. But we 22 probably ought to take a break and come back in about ten 23 minutes to three and resume. 24 Thank you, sir. 25 (Break taken.) 3199 01 C.O. CAFFREY: Back on the record. 02 Mr. Johnston has just asked to be added to the list of 03 cross-examiners, and we will add his name. 04 MR. SEXTON: Mr. Caffrey, may I make a point, please, 05 sir? 06 C.O. CAFFREY: Yes, Mr. Sexton. 07 MR. SEXTON: I have a suggestion that the Chairperson 08 call the proceedings for today and not have any more 09 proceedings on this subject until the next hearing date. 10 And the reason for that is, sir, I think we are getting way 11 beyond Phase IV. You have seen where the testimony is 12 going. We are discussing matters now about fishery impacts 13 that relate to all of the projects, including Friant. 14 There are an awful lot of folks here who are interested 15 in this. There is a lot of folks who aren't here who are 16 interested. I know that my schedule has been hectic as has 17 everybody else's in this room, including, of course, the 18 Board members. But, generally, when I prepare for a 19 proceeding like this, I look at the scope of the testimony, 20 and I see what is of interest. And then either I show up or 21 I don't show up based on what I think is going to be 22 presented. 23 Where we are right now is way beyond anything that I 24 expected, and I think most of the folks in the room would 25 agree, that any of them would have expected to be presented 3200 01 in a Phase IV proceeding. So, for that reason I would just 02 ask the Chair exercise some discretion and call the rest of 03 this proceeding until another day. 04 MR. BRANDT: I have an alternate proposal. 05 MR. JACKSON: Before you do, Mr. Caffrey, I would like 06 to join in that request. 07 C.O. CAFFREY: Does that mean you withdraw all your 08 cross-examination? 09 MR. JACKSON: No, sir. I'll pick it up whenever 10 everybody gets here. 11 C.O. CAFFREY: Mr. Brandt. 12 MR. BRANDT: Another way to do this might be for us to 13 either to focus on the facts, and there are just a couple of 14 facts we put in, and how they relate to the settlement 15 agreements. We are happy to provide either or both of 16 these witnesses again in a Phase VIII or something along 17 those lines so we can focus on, really, the settlement 18 agreements. 19 We sort of -- Ms. Goude's testimony had one fact that 20 sort of led to this second fact that we talked about, the 21 Mokelumne. So that fact is what is being brought out here 22 and being raised. 23 C.O. CAFFREY: Anybody else have any comments that they 24 want to make? Everybody is unusually quiet. 25 MR. NOMELLINI: I don't want to see this narrowed. I 3201 01 think this is within the scope of this Phase IV, and we are 02 analyzing the fairness or the appropriateness of the various 03 settlement agreements, in particular East Bay MUD Settlement 04 Agreement, and that involves a comparison of how we are 05 treating these other streams, and that is within the scope. 06 07 I don't mind going home early, not objecting to 08 that. I don't want to see this, our opportunity to 09 cross-examine on this subject, narrowed because of this 10 discussion. I think if we have to hold it so other people 11 can come, that is -- I don't know. But I wouldn't object to 12 that, trying to get the other people here, as well. I don't 13 want to miss my opportunity to follow up. 14 C.O. CAFFREY: Did you hear Mr. Brandt's suggestion? 15 Did everybody hear what he just suggested a moment ago? It 16 sounded like he was suggesting that he split his case in 17 chief, or at least take part of, more general part of his 18 case in chief, and perhaps take it out of the record now and 19 present it at a more appropriate time in another phase. 20 Is that what you were saying? Be specific now to the 21 agreements. 22 MR. BRANDT: I mean, to get to the conclusion that she 23 has on the Mokelumne agreement takes the sort of general 24 fact. So that way it is difficult. We are going to get 25 there, and we are going to talk about all these things, 3202 01 eventually, in Phase VIII. How can we narrow it? Maybe 02 another option is to have it and everyone else who has other 03 questions about the agreements and this fact, that is one 04 way to do it. We can come back and make sure we will commit 05 to be here later. I have no idea. I am just trying to come 06 up with ways for you to resolve this. 07 C.O. CAFFREY: Thank you, Mr. Brandt. 08 MR. NOMELLINI: I just want to reiterate, I think that 09 sounds like an attempt to limit our cross-examination. 10 C.O. CAFFREY: Which sounds like an attempt? 11 MR. NOMELLINI: Alf's comment about staying on a narrow 12 scope here. I think that is impossible to do and give us 13 the leeway on cross-examination. I am against that. 14 C.O. CAFFREY: Thank you, sir. 15 MR. JACKSON: Which is why I think that Mr. Sexton's -- 16 it is only one hour out of a very long hearing that we would 17 be waiving by going home right now. It would give everybody 18 an opportunity -- I would like a copy of Mr. Brandt's 19 opening statement, if I can get it. 20 And I do know that it would be a good way to sort of 21 alert what I see as -- I think the Friant people want to be 22 here. I think all of the San Joaquin trib people would want 23 to be. I know Mr. Lilly and Mr. Bartkiewicz would want to 24 be. Mr. Minasian would want to be here. 25 I don't think any of them had any idea that -- and 3203 01 there is nothing wrong with this. But I don't think any of 02 them had any idea we were going to be balancing the trust 03 today. 04 C.O. CAFFREY: That might suggest that you're assuming 05 that they never read Ms. Goude's evidentiary exhibit. Maybe 06 that is true. I don't know. Maybe they just weren't 07 expecting the scope of your cross-examination, Mr. Jackson. 08 MR. SEXTON: Mr. Chairman, in all fairness, I did read 09 Ms. Goude's testimony. Then the testimony that she actually 10 delivered went way beyond that. Even the testimony that she 11 gave the second time around was, at least in my view, still 12 somewhat inconsistent with the opening statement that was 13 delivered by Mr. Brandt, which, as I understood it, was the 14 Department of the Interior official policy. As Mr. Jackson 15 says, I just had no idea that we were going to be balancing 16 the trust today. If this is what we are going to do, fine. 17 C.O. CAFFREY: Thank you. 18 We are going to go off the record for a few minutes, 19 have a little consultation. So, relax, enjoy yourselves. 20 We will be back. 21 (Discussion held off the record.) 22 C.O. CAFFREY: We are back on the record. 23 We have reviewed our notice and our various documents, 24 and our finding and ruling is that this line of questioning 25 is within the scope of Phase IV. However, we also recognize 3204 01 that a number of you have expressed consternation as to your 02 narrower interpretation of the scope of Phase IV, and you 03 have expressed the desire to have a little bit more time to 04 prepare for your questioning and also perhaps to convey to 05 some of your colleagues what the scope of the line of 06 questioning is. So with that, we will certainly agree with, 07 exceed to Mr. Sexton's suggestion that we adjourn for today, 08 and we will be back on September 15th. 09 And I will ask for some discussion. 10 But our thought is that we would come back on the 15th, 11 and we will relist the cross-examiners to see if there are 12 others who wish to be added and continue with this line of 13 questioning. 14 Mr. Brandt. 15 MR. BRANDT: My only question is: What is the Board's 16 intentions for the following phases? Let's assume we were 17 to get this done in one day. What would happen? What do 18 you plan for the next phases after that, after Phase IV? 19 C.O. CAFFREY: Since it has taken us as long as it has, 20 then I presume we will go to Phase V. By the time we 21 finish Phase IV, there would have been plenty of time to 22 receive the exhibits, look them over. 23 Does anybody on the staff or the Board disagree? We 24 shouldn't jump over V and go to VI? 25 So, it would be V. 3205 01 MR. BRANDT: Is there an intention to go V, VI, VII, or 02 if it worked out that you had three weeks afterwards and we 03 would go to V and II-A? 04 C.O. CAFFREY: I believe we were going to go to II-A 05 after V if we had all of the information in hand and 06 everybody had a reasonable time to look at it. Then we 07 would jump back to II-A. It is conceivable that if we move 08 through V so quickly and finish this one so quickly, I 09 suppose that -- I don't have all the schedule in my head. 10 But I think it is unlikely that we would do VI and VII 11 before II-A. 12 MR. BRANDT: Thank you, Mr. Chairman. 13 C.O. CAFFREY: Mr. Birmingham. 14 MR. BIRMINGHAM: I was just going to take bets on 15 whether or not we were going to be celebrating Christmas 16 together. 17 MEMBER FORSTER: You know it. We always do. 18 C.O. CAFFREY: We are going to -- I would say we will 19 be celebrating New Year's and part of the spring together. 20 We will get it done. 21 We will be back in this room. Let me ask if there are 22 other questions. 23 Mr. Garner. 24 MR. GARNER: Before we start talking about procedure 25 and order, I want to raise an issue about Phase VIII in 3206 01 terms of when we do get a notice for that proceeding. I 02 have talked with a number of attorneys, and we would 03 certainly appreciate if we could have as much notice as 04 possible of those dates, be that 60 days, if possible, or 05 something of that nature. I just wanted to raise that 06 point. I don't know when it would be, when we will be 07 looking at a Phase VIII notice. But it certainly would be 08 nice to have a little extra notice for that phase. 09 C.O. CAFFREY: It has always been our intention at a 10 minimum to provide protection for the Delta by the end of 11 this year for the whatever-it-is period of time after 12 December 31st. With regard to how long that would be, for 13 lack of a better term, something like offspring of '95-6. 14 With regard to the rest of the decision or decisions, that 15 will take as long as it takes. Obviously, we're interesting 16 in expediting it. 17 I think we've -- maybe I'm the only one around that 18 thinks this. But I think we've made decent progress in 19 terms of gathering the evidence. I even think that this 20 phased approach we've made the best of making it work. 21 I realize there are some very gray areas as we go through 22 this. One of them just came up today. What the Board does 23 very much appreciate, all of your help on this. And we 24 realize that you all have separate parties to defend. We 25 appreciate the spirit in which we are all trying to make 3207 01 this thing hang together. I frankly do not see us finishing 02 this before the end of the calendar year. It is a 03 possibility, but it may take longer than that. 04 Ms. Leidigh. 05 MS. LEIDIGH: Ms. Whitney reminded me that maybe it 06 would be a good idea to point out to the parties in case 07 they haven't gotten their mail, that we did extend the 08 deadline for submitting exhibits on Phase II-A to September 09 15th. 10 C.O. CAFFREY: We did have a request or maybe two for 11 that extension, and we added a couple of weeks. You should 12 find that in your mail soon. 13 Any other questions? 14 We will be back here in this room 9:00 a.m., September 15 15th to continue as we just described. 16 Thank you. 17 (Hearing adjourned at 3:15 p.m.) 18 ---oOo--- 19 20 21 22 23 24 25 3208 01 REPORTER'S CERTIFICATE 02 03 04 STATE OF CALIFORNIA ) 04 ) ss. 05 COUNTY OF SACRAMENTO ) 05 06 06 07 08 I, ESTHER F. WIATRE, certify that I was the 09 official Court Reporter for the proceedings named herein, 10 and that as such reporter, I reported in verbatim shorthand 11 writing those proceedings; 12 That I thereafter caused my shorthand writing to be 13 reduced to typewriting, and the pages numbered 3050 through 14 3207 herein constitute a complete, true and correct record 15 of the proceedings. 16 17 IN WITNESS WHEREOF, I have subscribed this certificate 18 at Sacramento, California, on this 3rd day of August 1998. 19 20 21 22 22 23 ______________________________ 23 ESTHER F. WIATRE 24 CSR NO. 1564 24 25