STATE WATER RESOURCES CONTROL BOARD PUBLIC HEARING 1998 BAY-DELTA WATER RIGHTS HEARING HELD AT 901 P STREET SACRAMENTO, CALIFORNIA TUESDAY, SEPTEMBER 15, 1998 9:00 A.M. Reported by: MARY GALLAGHER, CSR #10749 CAPITOL REPORTERS (916) 923-5447 1 APPEARANCES ---oOo--- 2 3 BOARD MEMBERS: 4 JOHN CAFFREY, CO-HEARING OFFICER JAMES STUBCHAER, CO-HEARING OFFICER 5 MARC DEL PIERO MARY JANE FORSTER 6 JOHN W. BROWN 7 STAFF MEMBERS: 8 THOMAS HOWARD - Supervising Engineer 9 VICTORIA A. WHITNEY - Senior Engineer 10 COUNSEL: 11 WILLIAM R. ATTWATER - Chief Counsel 12 WALTER PETTIT - Executive Director BARBARA LEIDIGH - Senior Staff Counsel 13 14 ---oOo--- 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 3210 1 REPRESENTATIVES 2 PRINCETON CODORA GLENN IRRIGATION DISTRICT, et al. 3 FROST, DRUP & ATLAS 4 134 West Sycamore STreet Willows, California 95988 5 BY: J. MARK ATLAS, ESQ. 6 JOINT WATER DISTRICTS: 7 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 8 Oroville, California 95965 BY: WILLIAM H. BABER, III, ESQ. 9 CALIFORNIA SPORTFISHING PROTECTION ALLIANCE: 10 ROBERT J. BAIOCCHI 11 P.O. Box 357 Quincy, California 95971 12 BELLA VISTA WATER DISTRICT: 13 BRUCE L. BELTON, ESQ. 14 2525 Park Marina Drive, Suite 102 Redding, California 96001 15 WESTLANDS WATER DISTRICT: 16 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 17 400 Capitol Mall, 27th Floor Sacramento, California 95814 18 BY: THOMAS W. BIRMINGHAM, ESQ. 19 THE BAY INSTITUTE OF SAN FRANCISCO: 20 GRAY BOBKER 55 Shaver Street, Suite 330 21 San Rafael, California 94901 22 CITY OF ANTIOCH, et al.: 23 FREDERICK BOLD, JR., ESQ. 1201 California Street, Suite 1303 24 San Francisco, California 94109 25 CAPITOL REPORTERS (916) 923-5447 3211 1 REPRESENTATIVES 2 LEAGUE OF WOMEN VOTERS: 3 ROBERTA BORGONOVO 4 2480 Union Street San Francisco, California 94123 5 UNITED STATES DEPARTMENT OF THE INTERIOR: 6 OFFICE OF THE SOLICITOR 7 2800 Cottage Way, Roon E1712 Sacramento, California 95825 8 BY: ALF W. BRANDT, ESQ. 9 CALIFORNIA URBAN WATER AGENCIES: 10 BYRON M. BUCK 455 Capitol Mall, Suite 705 11 Sacramento, California 95814 12 RANCHO MURIETA COMMUNITY SERVICES DISTRICT: 13 MCDONOUGH, HOLLAND & ALLEN 555 Capitol Mall, 9th Floor 14 Sacramento, California 95814 BY: VIRGINIA A. CAHILL, ESQ. 15 CALIFORNIA DEPARTMENT OF FISH AND GAME: 16 OFFICE OF THE ATTORNEY GENERAL 17 1300 I Street, Suite 1101 Sacramento, California 95814 18 BY: MATTHEW CAMPBELL, ESQ. 19 NATURAL RESOURCES DEFENSE COUNCIL: 20 HAMILTON CANDEE, ESQ. 71 Stevenson Street 21 San Francisco, California 94105 22 ARVIN-EDISON WATER STORAGE DISTRICT, et al.: 23 DOOLEY HERR & WILLIAMS 3500 West Mineral King Avenue, Suite C 24 Visalia, California 93191 BY: DANIEL M. DOOLEY, ESQ. 25 CAPITOL REPORTERS (916) 923-5447 3212 1 REPRESENTATIVES 2 SACRAMENTO MUNICIPAL UTILITY DISTRICT: 3 LESLIE A. DUNSWORTH, ESQ. 4 6201 S Street Sacramento, California 95817 5 SOUTH SAN JOAQUIN IRRIGATION DISTRICT, et al.: 6 BRAY, GEIGER, RUDQUIST & NUSS 7 311 East Main Street, 4th Floor Stockton, California 95202 8 BY: STEVEN P. EMRICK, ESQ. 9 EAST BAY MUNICIPAL UTILITY DISTRICT: 10 EBMUD OFFICE OF GENERAL COUNSEL 375 Eleventh Street 11 Oakland, California 94623 BY: FRED ETHERIDGE, ESQ. 12 GOLDEN GATE AUDUBON SOCIETY: 13 ARTHUR FEINSTEIN 14 2530 San Pablo Avenue, Suite G Berkeley, California 94702 15 CONAWAY CONSERVANCY GROUP: 16 UREMOVIC & FELGER 17 P.O. Box 5654 Fresno, California 93755 18 BY: WARREN P. FELGER, ESQ. 19 THOMES CREEK WATER ASSOCIATION: 20 THOMES CREEK WATERSHED ASSOCIATION P.O. Box 2365 21 Flournoy, California 96029 BY: LOIS FLYNNE 22 COURT APPOINTED REPS OF WESTLANDS WD AREA 1, et al.: 23 LAW OFFICES OF SMILAND & KHACHIGIAN 24 601 West Fifth Street, Seventh Floor Los Angeles, California 90075 25 BY: CHRISTOPHER G. FOSTER, ESQ. CAPITOL REPORTERS (916) 923-5447 3213 1 REPRESENTATIVES 2 CITY AND COUNTY OF SAN FRANCISCO: 3 OFFICE OF THE CITY ATTORNEY 4 1390 Market Street, Sixth Floor San Francisco, California 94102 5 BY: DONN W. FURMAN, ESQ. 6 CAMP FAR WEST IRRIGATION DISTRICT, et al.: 7 DANIEL F. GALLERY, ESQ. 926 J Street, Suite 505 8 Sacramento, California 95814 9 BOSTON RANCH COMPANY, et al.: 10 J.B. BOSWELL COMPANY 101 West Walnut Street 11 Pasadena, California 91103 BY: EDWARD G. GIERMANN 12 SAN JOAQUIN RIVER GROUP AUTHORITY, et al.: 13 GRIFFIN, MASUDA & GODWIN 14 517 East Olive Street Turlock, California 95381 15 BY: ARTHUR F. GODWIN, ESQ. 16 NORTHERN CALIFORNIA WATER ASSOCIATION: 17 RICHARD GOLB 455 Capitol Mall, Suite 335 18 Sacramento, California 95814 19 PLACER COUNTY WATER AGENCY, et al.: 20 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 400 Capitol Mall, 27th Floor 21 Sacramento, California 95814 BY: JANET GOLDSMITH, ESQ. 22 ENVIRONMENTAL DEFENSE FUND: 23 THOMAS J. GRAFF, ESQ. 24 5655 College Avenue, Suite 304 Oakland, California 94618 25 CAPITOL REPORTERS (916) 923-5447 3214 1 REPRESENTATIVES 2 CALAVERAS COUNTY WATER DISTRICT: 3 SIMON GRANVILLE 4 P.O. Box 846 San Andreas, California 95249 5 CHOWCHILLA WATER DISTRICT, et al.: 6 GREEN, GREEN & RIGBY 7 P.O. Box 1019 Madera, California 93639 8 BY: DENSLOW GREEN, ESQ. 9 CALIFORNIA FARM BUREAU FEDERATION: 10 DAVID J. GUY, ESQ. 2300 River Plaza Drive 11 Sacramento, California 95833 12 SANTA CLARA VALLEY WATER DISTRICT: 13 MORRISON & FORESTER 755 Page Mill Road 14 Palo Alto, California 94303 BY: KEVIN T. HAROFF, ESQ. 15 CITY OF SHASTA LAKE: 16 ALAN N. HARVEY 17 P.O. Box 777 Shasta Lake, California 96019 18 COUNTY OF STANISLAUS: 19 MICHAEL G. HEATON, ESQ. 20 926 J Street Sacramento, California 95814 21 GORRILL LAND COMPANY: 22 GORRILL LAND COMPANY 23 P.O. Box 427 Durham, California 95938 24 BY: DON HEFFREN 25 CAPITOL REPORTERS (916) 923-5447 3215 1 REPRESENTATIVES 2 SOUTH DELTA WATER AGENCY: 3 JOHN HERRICK, ESQ. 4 3031 West March Lane, Suite 332 East Stockton, California 95267 5 COUNTY OF GLENN: 6 NORMAN Y. HERRING 7 525 West Sycamore Street Willows, California 95988 8 REGIONAL COUNCIL OF RURAL COUNTIES: 9 MICHAEL B. JACKSON 10 1020 Twelfth Street, Suite 400 Sacramento, California 95814 11 DEER CREEK WATERSHED CONSERVANCY: 12 JULIE KELLY 13 P.O. Box 307 Vina, California 96092 14 DELTA TRIBUTARY AGENCIES COMMITTEE: 15 MODESTO IRRIGATION DISTRICT 16 P.O. Box 4060 Modesto, California 95352 17 BY: BILL KETSCHER 18 SAVE THE SAN FRANCISCO BAY ASSOCIATION: 19 SAVE THE BAY 1736 Franklin Street 20 Oakland, California 94612 BY: CYNTHIA L. KOEHLER, ESQ. 21 BATTLE CREEK WATERSHED LANDOWNERS: 22 BATTLE CREEK WATERSHED CONSERVANCY 23 P.O. Box 606 Manton, California 96059 24 25 CAPITOL REPORTERS (916) 923-5447 3216 1 REPRESENTATIVES 2 BUTTE SINK WATERFOWL ASSOCIATION, et al.: 3 MARTHA H. LENNIHAN, ESQ. 4 455 Capitol Mall, Suite 300 Sacramento, California 95814 5 CITY OF YUBA CITY: 6 WILLIAM P. LEWIS 7 1201 Civic Center Drive Yuba City, California 95993 8 BROWNS VALLEY IRRIGTAION DISTRICT, et al.: 9 BARTKIEWICZ, KRONICK & SHANAHAN 10 1011 22nd Street, Suite 100 Sacramento, California 95816 11 BY: ALAN B. LILLY, ESQ. 12 CONTRA COSTA WATER DISTRICT: 13 BOLD, POLISNER, MADDOW, NELSON & JUDSON 500 Ygnacio Valley Road, Suite 325 14 Walnut Creek, California 94596 BY: ROBERT B. MADDOW, ESQ. 15 GRASSLAND WATER DISTRICT: 16 DON MARCIOCHI 17 22759 South Mercey Springs Road Los Banos, California 93635 18 SAN LUIS CANAL COMPANY: 19 FLANAGAN, MASON, ROBBINS & GNASS 20 3351 North M Street, Suite 100 Merced, California 95344 21 BY: MIICHAEL L. MASON, ESQ. 22 STONY CREEK BUSINESS AND LAND OWNERS COALITION: 23 R.W. MCCOMAS 4150 County Road K 24 Orland, California 95963 25 CAPITOL REPORTERS (916) 923-5447 3217 1 REPRESENTATIVES 2 TRI-DAM POWER AUTHORITY: 3 TUOLUMNE UTILITIES DISTRICT 4 P.O. Box 3728 Sonora, California 95730 5 BY: TIM MCCULLOUGH 6 DELANO-EARLIMART IRRIGATION DISTRICT, et al.: 7 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 8 Oroville, California 95965 BY: JEFFREY A. MEITH, ESQ. 9 HUMANE FARMING ASSOCIATION: 10 BRADLEY S. MILLER. 11 1550 California Street, Suite 6 San Francisco, California 94109 12 CORDUA IRRIGATION DISTRICT, et al.: 13 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 14 P.O. Box 1679 Oroville, California 95965 15 BY: PAUL R. MINASIAN, ESQ. 16 EL DORADO COUNTY WATER AGENCY: 17 DE CUIR & SOMACH 400 Capitol Mall, Suite 1900 18 Sacramento, California 95814 BY: DONALD B. MOONEY, ESQ. 19 GLENN COUNTY FARM BUREAU: 20 STEVE MORA 21 501 Walker Street Orland, California 95963 22 MODESTO IRRIGATION DISTRICT: 23 JOEL MOSKOWITZ 24 P.O. Box 4060 Modesto, California 95352 25 CAPITOL REPORTERS (916) 923-5447 3218 1 REPRESENTATIVES 2 PACIFIC GAS & ELECTRIC: 3 RICHARD H. MOSS, ESQ. 4 P.O. Box 7442 San Francisco, California 94120 5 CENTRAL DELTA WATER AGENCY, et al.: 6 NOMELLINI, GRILLI & MCDANIEL 7 P.O. Box 1461 Stockton, California 95201 8 BY: DANTE JOHN NOMELLINI, ESQ. and 9 DANTE JOHN NOMELLINI, JR., ESQ. 10 TULARE LAKE BASIN WATER STORAGE UNIT: 11 MICHAEL NORDSTROM 1100 Whitney Avenue 12 Corcoran, California 93212 13 AKIN RANCH, et al.: 14 DOWNEY, BRAND, SEYMOUR & ROHWER 555 Capitol Mall, 10th Floor 15 Sacramento, California 95814 BY: KEVIN M. O'BRIEN, ESQ. 16 OAKDALE IRRIGATION DISTRICT: 17 O'LAUGHLIN & PARIS 18 870 Manzanita Court, Suite B Chico, California 95926 19 BY: TIM O'LAUGHLIN, ESQ. 20 SIERRA CLUB: 21 JENNA OLSEN 85 Second Street, 2nd Floor 22 San Francisco, California 94105 23 YOLO COUNTY BOARD OF SUPERVISORS: 24 LYNNEL POLLOCK 625 Court Street 25 Woodland, California 95695 CAPITOL REPORTERS (916) 923-5447 3219 1 REPRESENTATIVES 2 PATRICK PORGENS & ASSOCIATES: 3 PATRICK PORGENS 4 P.O. Box 60940 Sacramento, California 95860 5 BROADVIEW WATER DISTRICT, et al.: 6 DIANE RATHMANN 7 P.O. Box 156 Dos Palos, California 93620 8 FRIENDS OF THE RIVER: 9 BETSY REIFSNIDER 10 128 J Street, 2nd Floor Sacramento, California 95814 11 MERCED IRRIGATION DISTRICT: 12 FLANAGAN, MASON, ROBBINS & GNASS 13 P.O. Box 2067 Merced, California 95344 14 BY: KENNETH M. ROBBINS, ESQ. 15 CENTRAL SAN JOAQUIN WATER CONSERVATION DISTRICT: 16 REID W. ROBERTS, ESQ. 311 East Main Street, Suite 202 17 Stockton, California 95202 18 METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA: 19 JAMES F. ROBERTS P.O. Box 54153 20 Los Angeles, California 90054 21 SACRAMENTO AREA WATER FORUM: 22 CITY OF SACRAMENTO 980 9th Street, 10th Floor 23 Sacramento, California 95814 BY: JOSEPH ROBINSON, ESQ. 24 25 CAPITOL REPORTERS (916) 923-5447 3220 1 REPRESENTATIVES 2 TUOLUMNE RIVER PRESERVATION TRUST: 3 NATURAL HERITAGE INSTITUTE 4 114 Sansome Street, Suite 1200 San Francisco, California 94194 5 BY: RICHARD ROOS-COLLINS, ESQ. 6 CALIFORNIA DEPARTMENT OF WATER RESOURCES: 7 DAVID A. SANDINO, ESQ. P.O. Box 942836 8 Sacramento, California 94236 9 FRIANT WATER USERS AUTHORITY: 10 GARY W. SAWYERS, ESQ. 575 East Alluvial, Suite 101 11 Fresno, California 93720 12 KERN COUNTY WATER AGENCY: 13 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 400 Captiol Mall, 27th Floor 14 Sacramento, California 95814 BY: CLIFFORD W. SCHULZ, ESQ. 15 SAN JOAQUIN RIVER EXCHANGE CONTRACTORS: 16 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 17 P.O. Box 1679 Oroville, California 95965 18 BY: MICHAEL V. SEXTON, ESQ. 19 SAN JOAQUIN COUNTY: 20 NEUMILLER & BEARDSLEE P.O. Box 20 21 Stockton, California 95203 BY: THOMAS J. SHEPHARD, SR., ESQ. 22 CITY OF STOCKTON: 23 DE CUIR & SOMACH 24 400 Capitol Mall, Suite 1900 Sacramento, California 95814 25 BY: PAUL S. SIMMONS, ESQ. CAPITOL REPORTERS (916) 923-5447 3221 1 REPRESENTATIVES 2 ORLAND UNIT WATER USERS' ASSOCIATION: 3 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 4 P.O. Box 1679 Oroville, California 95965 5 BY: M. ANTHONY SOARES, ESQ. 6 GLENN-COLUSA IRRIGATION DISTRICT: 7 DE CUIR & SOMACH 400 Capitol Mall, Suite 1900 8 Sacramento, California 95814 BY: STUART L. SOMACH, ESQ. 9 NORTH SAN JOAQUIN WATER CONSERVATION DISTRICT: 10 JAMES F. SORENSEN CONSULTING CIVIL ENGINEER, INC.: 11 209 South Locust Street Visalia, California 93279 12 BY: JAMES F. SORENSEN 13 PARADISE IRRIGATION DISTRICT: 14 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 15 Oroville, California 95965 BY: WILLIAM H. SPRUANCE, ESQ. 16 COUNTY OF COLUSA: 17 DONALD F. STANTON, ESQ. 18 1213 Market Street Colusa, California 95932 19 COUNTY OF TRINITY: 20 COUNTY OF TRINITY - NATURAL RESOURCES 21 P.O. Box 156 Hayfork, California 96041 22 BY: TOM STOKELY 23 CITY OF REDDING: 24 JEFFERY J. SWANSON, ESQ. 2515 Park Marina Drive, Suite 102 25 Redding, California 96001 CAPITOL REPORTERS (916) 923-5447 3222 1 REPRESENTATIVES 2 TULARE IRRIGATION DISTRICT: 3 TEHEMA COUNTY RESOURCE CONSERVATION DISTRICT 4 2 Sutter Street, Suite D Red Bluff, California 96080 5 BY: ERNEST E. WHITE 6 STATE WATER CONTRACTORS: 7 BEST BEST & KREIGER P.O. Box 1028 8 Riverside, California 92502 BY: CHARLES H. WILLARD 9 COUTNY OF TEHEMA, et al.: 10 COUNTY OF TEHEMA BOARD OF SUPERVISORS 11 P.O. Box 250 Red Bluff, California 96080 12 BY: CHARLES H. WILLARD 13 MOUNTAIN COUNTIES WATER RESOURCES ASSOCIATION: 14 CHRISTOPHER D. WILLIAMS P.O. Box 667 15 San Andreas, California 95249 16 JACKSON VALLEY IRRIGATION DISTRICT: 17 HENRY WILLY 6755 Lake Amador Drive 18 Ione, California 95640 19 SOLANO COUNTY WATER AGENCY, et al.: 20 HERUM, CRABTREE, DYER, ZOLEZZI & TERPSTRA 2291 West March Lane, S.B. 100 21 Stockton, California 95207 BY: JEANNE M. ZOLEZZI, ESQ. 22 23 ---oOo--- 24 25 CAPITOL REPORTERS (916) 923-5447 3223 1 I N D E X 2 ---oOo--- 3 4 PAGE 5 OPENING OF HEARING 3225 6 AFTERNOON SESSION 3328 7 END OF PROCEEDINGS 3413 8 DEPARTMENT OF INTERIOR: 9 PANEL: 10 CAY GOUDE 11 ROGER GUINEE 12 CROSS-EXAMINATION: 13 BY MR. JACKSON 3237 BY MR. MADDOW 3279 14 BY MR. NOMELLINI 3289 BY MR. BIRMINGHAM 3364 15 BY MR. GALLERY 3374 BY MR. GARNER 3388 16 BY MR. LILLY 3390 17 18 ---oOo--- 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 3224 1 TUESDAY, SEPTEMBER 15, 1998, 9:04 A.M. 2 SACRAMENTO, CALIFORNIA 3 ---oOo--- 4 C.O. CAFFREY: Good morning, welcome back. These are 5 the Bay-Delta Water Rights Hearings -- or this is the 6 Bay-Delta Water Rights Hearing, whichever you prefer 7 phrased as it is. We are back after a three-week recess 8 while the Board and all of you did other important things. 9 Before we proceed by picking up where we last left 10 off, I just want to ask if: Is there someone here from the 11 Sacramento Water Forum wishing to make a policy statement? 12 We got a phone call that that might be their wish, but it 13 wasn't sure at that point that it was going to occur. 14 Anybody here from the Sacramento Water Forum wishing to 15 make a policy statement? All right. We will pass that by, 16 then. 17 The point where we recessed last time was the 18 cross-examination of the Department of the Interior, direct 19 testimony witnesses Cay Goude and Roger Guinee. Good 20 morning. Mr. Brandt, good morning. 21 Let me, again, read the list of cross-examiners as 22 I have them. Mr. Jackson was, I believe, in the middle of 23 his cross-examination. And after Mr. Jackson we have 24 Mr. Maddow, Mr. Nomellini, Mr. Etheridge, Mr. Birmingham, 25 Mr. Gallery, Mr. Garner -- is Mr. Garner here? CAPITOL REPORTERS (916) 923-5447 3225 1 MR. GARNER: Yes. 2 C.O. CAFFREY: There you are, sir. Mr. Lilly, 3 Mr. Campbell and Mr. Johnston. Did I leave anybody out? 4 UNIDENTIFIED MAN: Mr. Chairman, I wasn't here last 5 time, but the San Joaquin River Group doesn't anticipate 6 cross-examining these witnesses. 7 C.O. CAFFREY: Does or does not? 8 UNIDENTIFIED MAN: No, does not. 9 C.O. CAFFREY: All right. Thank you. 10 UNIDENTIFIED MAN: But we would like to be able to 11 cross-examine them possibly in Phase VIII, if necessary. 12 And we have spoken to Mr. Brandt. 13 C.O. CAFFREY: That's probably arrangeable since I 14 think they will undoubtedly have some participation in the 15 phase. 16 C.O. STUBCHAER: Mr. Brandt is nodding, Mr. Chairman. 17 C.O. CAFFREY: Mr. Brandt is, also, nodding. 18 MR. BRANDT: Thank you, for the record. 19 C.O. CAFFREY: Are you gentlemen standing to be added 20 to the list? 21 MR. GODWIN: Yes. 22 C.O. CAFFREY: All right. Let's go through -- I 23 think Mr. Minasian had his hand up first. And thank you 24 for your clarification, Mr. Godwin. Mr. Suyeyasu? 25 MR. SUYEYASU: Thank you. CAPITOL REPORTERS (916) 923-5447 3226 1 MR. HITCHINGS: Mr. Chairman, Andy Hitchings for 2 DCID. I wanted to follow up on Mr. Godwin's comment. I'm 3 assuming that's the case for any parties that wish to 4 reserve the opportunity to cross-examine these witnesses in 5 Phase VIII. 6 C.O. CAFFREY: Well, let's see, let me back up and 7 ask a question of Ms. Leidigh. We actually haven't had, or 8 have we -- yeah, I guess we have. I'm having this little 9 colloquy with myself. We have exhibits submitted even for 10 Phase VIII, or is that not the case? Phase VIII we have 11 not had yet. 12 MS. LEIDIGH: No, we have not yet called for exhibits 13 for Phase VIII. 14 C.O. CAFFREY: Then I'm assuming Mr. Brandt is 15 nodding in the affirmative, because if there were a Phase 16 VIII, he would be presenting a case in chief. Is that 17 right, sir? 18 MR. BRANDT: That is correct. 19 C.O. CAFFREY: That means that anybody who has 20 identified themselves as a party would be able to 21 cross-examine. And you have done so earlier on, 22 Mr. Hitchings. 23 MR. HITCHINGS: Yes. 24 C.O. CAFFREY: So I believe that you all have that 25 right. CAPITOL REPORTERS (916) 923-5447 3227 1 MR. HITCHINGS: Thank you. 2 C.O. CAFFREY: You gentlemen were not standing to 3 cross-examine? 4 MR. HITCHINGS: With that clarification, no. 5 C.O. CAFFREY: All right. Thank you, gentlemen. 6 Mr. Herrick. 7 MR. HERRICK: Yes, I would like to add my name to the 8 list, but by the time you get to me my questions will 9 probably be asked by then. 10 C.O. CAFFREY: All right. Thank you, Mr. Herrick, 11 we'll still call on you and give you that opportunity. All 12 right. 13 MS. GOLDSMITH: Just for the record -- 14 C.O. CAFFREY: Ms. Goldsmith. 15 MS. GOLDSMITH: On behalf of Placer County Water 16 Agency, Calaveras Water District and City of West 17 Sacramento and the City of Carmichael I'd also like to 18 reserve the opportunity to cross-examine these witnesses in 19 Phase VIII. 20 C.O. CAFFREY: All right. Mr. Minasian. 21 MR. MINASIAN: Mr. Chairman, perhaps, you could talk 22 to yourself or for a moment with Ms. Leidigh about the 23 impact of reserving cross-examination to Phase VIII with 24 this hypothesis: The Board went forward and approved a 25 settlement agreement taking into consideration the CAPITOL REPORTERS (916) 923-5447 3228 1 testimony of Fish and Wildlife Service and Department of 2 the Interior. 3 Would we not effectively not have cross-examined 4 the witnesses in mind of the Board Members? I would not 5 like to see East Bay, or any party that presents a 6 settlement, end up barred from the Board considering a 7 settlement in light of that tactical problem of that 8 question of order. I think the comments of Mr. Hitchings 9 and Mr. Mooney are in good faith, but it leaves me with the 10 question, and I'm sure it will leave them with the 11 question, what weight will be given to their 12 cross-examination if decisions are made in Phase IV. 13 C.O. CAFFREY: Mr. Hitchings? 14 MR. HITCHINGS: Yes, in response to that the 15 substance of any cross-examination that I'm intending would 16 be for issues specific to Phase VIII, not to issues 17 specific to the settlement agreements that are being 18 considered during this phase, Phase IV. 19 And that was the scope that I was discussing. And 20 that's what, essentially, had started to happen at the last 21 hearing day, some of the testimony went into Phase VIII 22 issues. And Mr. O'Brien I think was the first to clarify 23 that for those issues that were more pertinent to Phase 24 VIII you could reserve your cross-examination on those 25 issues. CAPITOL REPORTERS (916) 923-5447 3229 1 C.O. CAFFREY: Mr. Brandt, do you wish to comment? 2 MR. BRANDT: Yes. Mr. Chairman, I was going to wait 3 until the first -- until the question came up that was 4 specifically objectionable but, perhaps, after all this 5 discussion this might be the appropriate time. I have a 6 written objection to some of the scope of the questions 7 that were being asked in the earlier session. 8 We had -- and one of the proposals here is 9 basically that there be specified that there will be a 10 Phase VIII and we will commit to bring these witnesses back 11 during Phase VIII. And then limit the testimony to the 12 rivers that are being -- where there are agreements 13 proposed here today and/or -- and/or the scope of the 14 testimony of these witnesses so that we can focus it on 15 what the purpose of this phase is for. 16 These objections are based on relevance. And 17 before I formally assert them maybe we can do them now, or 18 we can do them after the question. I just thought that it 19 might be easier for us to try to get a ruling from the 20 Board and to make sure today's questioning is focused. 21 C.O. CAFFREY: Well, this sounds to me like a classic 22 case of, you know, what does phasing of evidence really 23 lead us to in terms of our ability to interpret what's 24 relevant in one phase and, perhaps, more relevant in 25 another. CAPITOL REPORTERS (916) 923-5447 3230 1 And in that regard I'd like to comment that all of 2 you, the attorneys and those presenting direct evidence, 3 have some control over the scope of all this. Because it's 4 not that clear and it's not that easy in my mind, maybe for 5 some of the other Board Members it is, but it's not that 6 easy in my mind to differentiate between Phase IV and Phase 7 VIII in some instances, especially when our rules allow for 8 cross-examination to go beyond the scope of direct. 9 So I haven't read your objection. And I don't 10 think anybody knows for sure where that line is. So when 11 you take us to that point, as the parties you put us in the 12 position of pretty much leaning towards leniency. All 13 right, which then means it goes to the Board Members when 14 they review the record in toto to have to use the weight of 15 evidence concept more so, perhaps, than how we might 16 normally have to do it. 17 So to some degree what's going on here is a 18 creature of your presenting this broadly-scoped commentary, 19 direct evidence, if you will, by Ms. Goude in this phase 20 rather than, say, in a Phase VIII. So I'm really not quite 21 sure how to deal with your objection. I doubt I could deal 22 with it now, because I haven't read it. And, again, I can 23 only admonish the other questioners, the cross-examiners to 24 do the best they can within the spirit of what we're about 25 here to try to limit the scope of their Phase IV CAPITOL REPORTERS (916) 923-5447 3231 1 questioning with some faith in a Phase VIII, if we get to 2 one. 3 Mr. Nomellini, did you understand all that? 4 MR. NOMELLINI: I did and I don't like what I'm 5 hearing. 6 MR. BRANDT: I mean I have not asserted the objection 7 yet so -- I mean at this point. 8 MR. NOMELLINI: Well, we argued this a little bit at 9 the end of the last session. And the scope of 10 cross-examination should not be limited artificially. The 11 breadth of this testimony deals with all river systems, and 12 the thrust of it is that there should be proportional 13 flows. And as I pointed out at the end, I didn't want my 14 right to cross-examine on the breadth of the subject of 15 this testimony restricted by this after they speak and put 16 it in the record then they decide they want to curtail it. 17 The phasing is not -- it's very difficult. We've 18 talked about that many times. And as I understand the 19 evidence in all these phases is cumulative so that it's all 20 there for the record and everything we've had before is 21 there to be decided. And if somebody wants to reframe from 22 cross-examining at this point on the broader issues, so be 23 it, but I don't think it's right to restrict others on the 24 scope of cross-examination when they've opened it up. 25 C.O. CAFFREY: Actually, Mr. Nomellini, we're in CAPITOL REPORTERS (916) 923-5447 3232 1 agreement. Maybe I wasn't all that clear when I spoke a 2 moment ago. What I was merely saying is it's within the 3 control of the cross-examiners to decide to some great 4 degree how far the scope of this questioning will go. 5 Because it's a difficult gray area to decide what is 6 relevant here and more relevant someplace else. 7 So my inclination is going to be to get on with 8 the questioning and allow pretty much the scope of where 9 the questioners want to go as long as it is relevant in its 10 very broad context as you described it, frankly. And I 11 know the Board Members through commentary, unless any of 12 them have changed their mind, the last time we met in this 13 proceeding, wanted to hear it. And that's all in my mind 14 as Hearing Officer the most overriding consideration, when 15 the Board Members want to hear it. 16 MR. NOMELLINI: Thank you. 17 C.O. CAFFREY: And that's where we were last time. 18 So, again, it goes to the attorneys to some degree to try 19 and use their best judgment as what's relevant here and 20 what's more relevant someplace else. And I apologize to 21 Mr. Jackson, because he's been standing for a long time and 22 I inadvertently ignored him. 23 Go ahead, Mr. Jackson, and then we'll go to 24 Ms. Goldsmith. 25 MR. JACKSON: Yes, Mr. Chairman. It seems to me that CAPITOL REPORTERS (916) 923-5447 3233 1 given the testimony that it's fairly clear what the limits 2 of the cross-examination are. The opening statement of 3 Mr. Brandt laid out a biological -- indicated that they 4 were going to lay out a biological case for a public trust 5 balancing, or, perhaps, for some unreasonable use of water. 6 Those are Phase VIII issues in terms of the law, the water 7 right, but it seems to me that they are also a biological 8 question. 9 And that this is a very appropriate time, given 10 the testimony, to find out whether or not there is a 11 biological case for a share of the pain. And so I will 12 stick to the biology, but it will be, in my opinion, I may 13 be restricted in Phase VIII dealing with water rights to 14 get involved in the biology of it. That particular phase 15 may deal with: Is it legal? 16 C.O. CAFFREY: All right. Thank you, Mr. Jackson. 17 Ms. Goldsmith? 18 MS. GOLDSMITH: Just a point of clarification. 19 Normally one gets one opportunity to cross-examine a 20 particular witness. And to the extent that an attorney 21 decides to curtail or restrict their cross-examination to 22 strictly deal with Phase VIII, Mokelumne River and Yuba, I 23 think, was brought up in their testimony, will they then 24 have a second opportunity to cross-examine in Phase VIII? 25 I think it needs to be clarified on the record as to CAPITOL REPORTERS (916) 923-5447 3234 1 what -- 2 C.O. CAFFREY: Well, we are dealing with, as 3 Mr. Nomellini pointed out, one hearing record; although, we 4 phased the taking of evidence. And I'm going to ask 5 Ms. Leidigh to critique what I say, but it seems to me if 6 you're in the process of cross-examining in Phase VIII and 7 there's something relevant that you have to link it to in 8 some other phase -- I don't know, Ms. Leidigh, do you want 9 to take off from where I left off? 10 MS. LEIDIGH: Yes. I think you're right, that it is 11 one hearing record, but different issues may come up at 12 different times. And we may see the same witness more than 13 once. And, of course, that witness can be cross-examined 14 on what they know that is relevant to the hearing. 15 Now, if an attorney has cross-examined the witness 16 on a particular point previously, as a cross-examine done 17 on exactly the same issues and questions in Phase IV and 18 then they try to cross-examine, again, on exactly the same 19 questions in Phase VIII, then I think that should be ruled 20 out, because it's repetitive. And it's unnecessary to 21 repeat the same thing twice in the same record. 22 But so far as cross-examining the witness more 23 than once on different questions and different issues, I 24 don't see anything wrong with that in this hearing. 25 C.O. CAFFREY: Let me put the question this way, if I CAPITOL REPORTERS (916) 923-5447 3235 1 might, and maybe I just didn't understand part of what you 2 said, Ms. Leidigh, but let us say, if I'm understanding 3 Ms. Goldsmith's concern: 4 Let us say Ms. Goldsmith does not take the 5 opportunity today to cross-examine these witnesses and then 6 they are presented again in a Phase VIII. And Phase VIII 7 is about water rights. And there is some relevancy to, 8 let's say, to the biology issue, can she then cross-examine 9 them on Phase IV issues even though she's in Phase VIII? 10 That's not what you wanted to know? 11 MS. GOLDSMITH: That's not what I meant. 12 C.O. CAFFREY: Try it again. 13 MS. GOLDSMITH: My question really went to: If I 14 decided to cross-examine them in Phase IV as to the narrow 15 issues that I believe are being presented in Phase IV, that 16 is the settlements, will I then have the opportunity to 17 further cross-examine them in Phase VIII as to the rest of 18 the more general nature of their testimony? 19 C.O. CAFFREY: Yes, you will. 20 MS. GOLDSMITH: Thank you. 21 C.O. CAFFREY: Yes. I'm sorry, I misunderstood. I 22 was going in the other direction. All right. Any other 23 questions? 24 All right. Mr. Jackson, you may proceed. I 25 think -- how much time had Mr. Jackson taken up until now CAPITOL REPORTERS (916) 923-5447 3236 1 for his cross-examination? 2 C.O. STUBCHAER: 23 minutes. 3 C.O. CAFFREY: You were 23 minutes into your -- into 4 the hour goal, Mr. Jackson. 5 MR. JACKSON: Thank you, sir. 6 C.O. CAFFREY: Please, proceed. 7 ---oOo--- 8 CROSS-EXAMINATION OF THE DEPARTMENT OF THE INTERIOR 9 BY THE REGIONAL COUNCIL OF RURAL COUNTIES 10 BY MICHAEL B. JACKSON 11 MR. JACKSON: Mr. Guinee, are you here today to 12 essentially testify about salmon? 13 MR. GUINEE: The testimony I presented was an 14 analysis of the flows for the salmon in the Mokelumne and 15 the Yuba River and how they would contribute to meeting the 16 Water Quality Control Plan, water quality objectives. 17 MR. JACKSON: Are there any other species that you're 18 here to testify about, other listed species like Delta 19 smelt, or is that somebody else's expertise? 20 MR. GUINEE: Yes, as far as Delta smelt, I would 21 defer questions to Cay Goude. I would be happy to answer 22 questions about salmon or steelhead. 23 MR. JACKSON: Calling your attention to where I think 24 we were when we broke off, we were talking about the 25 habitat that had previously existed in a state of nature CAPITOL REPORTERS (916) 923-5447 3237 1 above a number of the Bureau dams. Do you remember that, 2 sir? 3 MR. GUINEE: Yes, I remember that. 4 MR. JACKSON: Is that habitat, in your opinion, 5 necessary for the reestablishment of the winter-run salmon? 6 MR. BRANDT: Vague. Which habitat are we talking 7 about in this? 8 MR. JACKSON: Is the habitat above Shasta Dam in 9 Siskiyou County, which was the original habitat for the 10 winter-run salmon, necessary for the survival of the 11 winter-run? 12 MR. GUINEE: Would you repeat the question, please? 13 MR. JACKSON: Yes. Is the original spawning and 14 rearing habitat for the winter-run salmon above Lake Shasta 15 necessary for the recovery of the salmon in your opinion? 16 MR. BRANDT: I'm going to object. I'd like to -- 17 MEMBER DEL PIERO: It's my fault Mr. Chairman, I had 18 you -- 19 C.O. CAFFREY: No, that's permitted. That's okay. 20 Go ahead, Mr. Brandt. 21 MR. BRANDT: Could I have a moment to give a little 22 explanation and the basis of my objection, which is a 23 relevance objection? 24 MEMBER DEL PIERO: Mr. Chairman? 25 C.O. CAFFREY: Yes, Mr. Del Piero? CAPITOL REPORTERS (916) 923-5447 3238 1 MEMBER DEL PIERO: Before you do that I'd like to 2 hear what the question was. 3 C.O. CAFFREY: Yes. Mr. Del Piero and I were 4 distracted up here, and he takes the blame, it was actually 5 my fault. 6 Go ahead, Mr. Jackson. Do you want the question read 7 back or do you want to repeat it? 8 MR. JACKSON: If that's all right, I would like it 9 read back. 10 C.O. CAFFREY: All right. 11 (Whereupon the question was readback by the Reporter.) 12 C.O. CAFFREY: All right. Thank you. Go ahead, 13 Mr. Brandt. 14 MR. BRANDT: Mr. Chairman, this Board's notice sent 15 out the -- described the topic for Phase IV as the 16 responsibilities of the parties who are jointly proposing 17 agreements in Sacramento Mokelumne, Calaveras and Consumnes 18 River watershed, the DWR and the USBR to meet the flow 19 dependent objectives. 20 We have presented testimony and we have presented 21 testimony in both -- as both a general fact, but the reason 22 that it has a general fact is to get to the specifics of 23 the agreements that have been proposed and specifically the 24 Mokelumne. And when we presented this testimony, or when 25 we submitted it originally it included the Yuba because CAPITOL REPORTERS (916) 923-5447 3239 1 that was listed in your notice. 2 The questions, when they relate to the San Joaquin 3 River, I think that's an easy case. That's clearly outside 4 the scope of this phase and outside the scope of this 5 notice. When we get to the Sacramento River or Lake 6 Shasta, as we just asked, I think that is also outside the 7 scope of this hearing. And the reason is because the phase 8 has asked for the agreements. Phase VIII is asking for 9 everyone else and what happens every place elsewhere where 10 there are not agreements. The agreements that we have 11 proposed through this phase are on the Putah Creek, Cache 12 Creek, the Mokelumne and within the north Delta area. 13 So to the extent that it goes beyond any 14 discussion, or the question goes beyond those agreements 15 and the rivers that are related to those agreements, it's 16 outside the relevance of the phase as this Board described 17 this phase. 18 And a couple other points. I mean, when we get to 19 the points of who owns this dam, as we did in the earlier 20 questions, or, you know, is there a dam on the American 21 River, that gets to the point are we spending our time 22 unnecessarily? 23 Let me focus on this question, this question is 24 about Shasta Lake and above Shasta Dam and it is beyond the 25 scope. There is not an agreement. So there is going to CAPITOL REPORTERS (916) 923-5447 3240 1 have to be some other time, a proposal in Phase VIII for 2 how to deal with this. And so it really belongs in Phase 3 VIII. 4 And, finally, some of this stuff -- you know, the 5 witnesses have provided certain testimony. They've come 6 here knowing that they can be asked about anything within 7 this phase. But they haven't come here prepared to answer 8 every question about every river about every possible 9 system. And so they really had no notice and had no 10 ability to prepare, because they had no idea what this 11 phase would be about. They could look at the notice and 12 they could look at what's been going on. 13 So that's why, based on relevance, I would object 14 and encourage you -- and the way I would propose to take 15 care of this is to -- first, I'd request that the Board 16 make a commitment that there will be a Phase VIII. I mean, 17 I think that's one of the biggest challenges that we face 18 here, because many of these questions are being asked 19 because the Board -- Mr. Chairman, you've said several 20 times, and even today, there may not be a Phase VIII, if 21 there's a Phase VIII. 22 If there's no Phase VIII then we're going to go 23 through Phase VIII right here today. If there is a 24 commitment to be a Phase VIII, we commit, the Interior 25 offers and will commit to bring these witnesses back. If CAPITOL REPORTERS (916) 923-5447 3241 1 anybody wants to cross-examine them we will bring them 2 back. And, actually, we've already had those requests. So 3 we will bring them back. 4 And, then, the proposal that I would have is limit 5 the testimony for Phase IV to A, the scope of the -- 6 either -- starts with the scope of testimony of what 7 they're testifying about; B, the rivers that are -- and the 8 rivers that where there are agreements that have been 9 proposed as part of this Phase IV. So that is those 10 streams, but not the Sacramento River and everywhere else 11 and every other possible river that we could be discussing 12 here today. 13 And that would be my proposal for how we resolve 14 this and try and balance those. It's a challenge. I 15 understand we have a challenge here to try and meet both -- 16 both purposes and to provide everyone an opportunity. And 17 we would encourage you to provide that opportunity in Phase 18 VIII so that we can keep moving, because otherwise this 19 could take several weeks. And we would be doing Phase VIII 20 without the opportunity to be presenting other testimony in 21 a Phase VIII. 22 C.O. CAFFREY: Thank you for your deference, 23 Mr. Brandt. I would argue that we're writing a whole new 24 book on evidentiary procedure for these kind of boards, 25 maybe not. I just want to say that what I would like to do CAPITOL REPORTERS (916) 923-5447 3242 1 is see if anybody else have any comments and then we'll go 2 off the record for a few moments for a consultation. 3 Let's start with Mr. Nomellini and then 4 Mr. Herrick and then Mr. Lilly. Mr. Nomellini. 5 MR. NOMELLINI: I would repeat the same argument I 6 made before -- 7 C.O. CAFFREY: Excuse me. I thought you were coming 8 back to cross-examine, Mr. Jackson. 9 MR. JACKSON: No, sir. I wanted to be heard. 10 C.O. CAFFREY: All right. I'll recognize you first 11 and then Mr. Nomellini, Mr. Herrick and Mr. Lilly. 12 Go ahead, Mr. Jackson. 13 MR. JACKSON: Thank you. It was just called to my 14 attention by Mr. O'Brien that this is exactly the motion 15 that Mr. O'Brien made last time we were together and that 16 Mr. Brandt opposed the motion at that time. And you've 17 already ruled on this motion that, essentially, Mr. Brandt 18 in making his opening statement and allowing the testimony 19 to come in the way he did on direct opened up all of these 20 subjects since, in fact, the Government took a position in 21 opening statement in support of alternative three, which 22 has grave affects, biologically, in the area in which I'm 23 asking questions. 24 And, also, that the -- this particular testimony 25 sounded to me an awful lot like the United States Fish and CAPITOL REPORTERS (916) 923-5447 3243 1 Wildlife's position was alternative five. And I'm trying 2 to determine which of these two I'm supposed to be 3 fighting. And this is the way that I've chosen to start. 4 I'm trying to eliminate whatever is not going to be the 5 subject of the Government's case, but as widely as they 6 opened the door, I think I've got to find out what's on the 7 other side of it. 8 C.O. CAFFREY: All right. Thank you, Mr. Jackson. 9 Mr. Nomellini then Mr. Herrick and then Mr. Lilly. 10 Go ahead, Mr. Nomellini. 11 MR. NOMELLINI: I'm going to try not to repeat what I 12 said before, but it's the same issue that we discussed just 13 a moment ago. But the testimony, for example, of Cay Goude 14 speaks to proportional inflows restored to the Bay-Delta 15 equal system. And it talks about inflow, unimpaired inflow 16 from each tributary. 17 Now, that's, as I understand it, that includes all 18 the tributaries to the Delta. And the relevance of that 19 proportional flow to these particular agreements, I think 20 is clear, because as we judge the East Bay MUD agreement on 21 the Mokelumne, we should be entitled to see how that fits 22 into what the plan is for the Stanislaus, the Merced, the 23 Tuolumne and the other rivers. 24 So I think the legitimate scope of 25 cross-examination is there both on the relevancy as well as CAPITOL REPORTERS (916) 923-5447 3244 1 the testimony presented by the Department of the Interior. 2 And, therefore, I think it would be grossly unfair to grant 3 Mr. Brandt's motion and artificially restrict this after 4 they opened it up. 5 Now, to what extent when you guys start falling 6 asleep as we start talking about the river after river 7 after river, the relevancy may be a legitimate concern at 8 some point to that degree. But this proportional concept, 9 I think, is a real one. It's squarely before us and it's 10 necessary to judge the adequacy of the various settlements. 11 MEMBER DEL PIERO: Only audience members fall asleep. 12 C.O. CAFFREY: Relevancy is never determined by the 13 napping habits of Board Members. Mr. Herrick. 14 MR. HERRICK: Thank you, Mr. Chairman. I'd just like 15 to join in that. If the testimony is examining the 16 agreements on the various rivers and that testimony 17 suggests that those agreements either affect or change 18 other flows, other responsibilities, I don't see how you 19 could possibly limit it. Obviously, when we get too far 20 afield and we get into specifics, I don't see how you could 21 grant that motion given the testimony. 22 C.O. CAFFREY: All right. Thank you, Mr. Herrick. 23 Mr. Lilly. 24 MR. LILLY: Thank you, Mr. Chairman. First of all, I 25 have to say I agree with both Mr. O'Brien and Mr. Jackson. CAPITOL REPORTERS (916) 923-5447 3245 1 I think the Bureau really got this thing going into too 2 wide a scope and now it's getting out of control. I think 3 Mr. Brandt is, apparently, recognizing that now and is 4 trying to get it more limited, which really does make sense 5 if it can be done as long as it's not done with bias to any 6 other party. 7 However, I do want to respond to one other comment 8 that Mr. Brandt made that raises great concern to me. He 9 said he wants the Board to guarantee that there will be a 10 Phase VIII. As you know those of us -- I'm representing 11 the Yuba County Water Agency and many other water 12 districts. And we're still trying to reach agreements to 13 avoid a Phase VIII. And I don't think the Board should 14 commit to something that would rule out the possibility 15 still. It may still be very difficult, but the parties 16 should be working toward a global settlement that would 17 avoid Phase VIII. 18 And I suspect that the Board would be very happy 19 if we could do that. It's a big challenge. We may or may 20 not be successful, but it would be a serious mistake now to 21 say we're going to go forward with Phase VIII, when it may 22 not be necessary if a global and appropriate settlement can 23 be reached. And I don't think that was his intent. 24 Obviously, if there is a global settlement, 25 there's no need for Phase VIII. So we don't want anything CAPITOL REPORTERS (916) 923-5447 3246 1 that would basically preclude the parties from entering 2 into settlements that would be in everyone's interest. 3 C.O. CAFFREY: All right. Thank you, Mr. Lilly. I 4 will allow Mr. Brandt a very brief time to make a 5 statement, if he wishes to. And then we're going to go off 6 the record for a little consultation up here. 7 Only if you wish to, Mr. Brandt. 8 MR. BRANDT: I think I will leave it to this Board to 9 make the decision. 10 C.O. CAFFREY: Thank you, sir. Ms. Leidigh, will you 11 join us up here. We're off the record. 12 (Off the record from 9:36 a.m. to 9:38 a.m.) 13 C.O. CAFFREY: All right. We're back on the record. 14 After consultation we are going to overrule the objection 15 to Mr. Brandt. As originally stated when last we met the 16 testimony is within the scope of the phase as described in 17 the hearing notice. And we're going to allow the 18 cross-examination. And as I stated earlier, rely on the 19 questioners to keep things relevant, if not we'll deal with 20 it when we come to those points in the cross-examine. 21 Please, proceed, Mr. Jackson. 22 MR. JACKSON: Thank you. Mr. Guinee, do you remember 23 the question? 24 MR. GUINEE: Would you, please, repeat it. 25 MR. JACKSON: Would you mind rereading the question? CAPITOL REPORTERS (916) 923-5447 3247 1 C.O. CAFFREY: You know, while we're waiting for Mary 2 to get that information, it might be of some help if Ms. 3 Leidigh read into the record the scope of the phase just as 4 a backup to what I just stated. 5 MEMBER DEL PIERO: She can't take you down while 6 she's looking. 7 C.O. CAFFREY: Thank you. 8 MEMBER DEL PIERO: She needs a third hand. 9 C.O. CAFFREY: Thank you, Mr. Del Piero. I'll repeat 10 that in a moment. Go ahead and read the question. 11 (Whereupon the question was readback by the Reporter.) 12 MR. JACKSON: I believe there was an "is" in the 13 front of that. 14 THE COURT REPORTER: There is, "Is the original." 15 C.O. CAFFREY: Go ahead and answer and then we'll go 16 back to the other thing. I don't want you to forget the 17 question. 18 MR. GUINEE: Actually, Mr. Jackson, the recovery of 19 winter-run chinook salmon is the responsibility of the 20 National Marine Fishery Service. Fish and Wildlife Service 21 Anadromous Fish Restoration Program has identified habitat 22 restoration measures downstream of Shasta that would 23 contribute to restoration of winter-run chinook habitat. 24 And that is in the record. That is in the Board's 25 exhibits. CAPITOL REPORTERS (916) 923-5447 3248 1 C.O. CAFFREY: All right. If you would hold that 2 thought, Mr. Jackson. Mr. Brown, you had a question. I 3 just didn't want the witness to forget the question again. 4 MEMBER BROWN: I'm sure some of the folks in the back 5 of the room could not hear Mary repeat the question. I 6 thought, perhaps, Mr. Jackson, might repeat it for their 7 benefit. 8 C.O. CAFFREY: Thank you, Mr. Brown. 9 MR. JACKSON: Yes. Is the original winter-run salmon 10 above Shasta Dam necessary, in your opinion, for the 11 recovery of the winter-run salmon? 12 C.O. CAFFREY: All right. That was a reading for the 13 people at the back of the audience. Before you ask your 14 next question, Mr. Jackson, Ms. Leidigh, would you read 15 into the record, just for clarification purposes, the scope 16 of Phase IV. 17 MS. LEIDIGH: Okay. The scope of Phase IV is listed 18 in the hearing notice that was issued on May 6th. It's on 19 page 5 of the notice. And it says: 20 (Reading): 21 "The responsibilities of the parties who are 22 jointly proposing agreements in the Sacramento, 23 Mokelumne, Calaveras and Consumnes River 24 watersheds the DWR and the USBR to meet the flow 25 dependent objectives." CAPITOL REPORTERS (916) 923-5447 3249 1 That is the scope of Phase IV. 2 C.O. CAFFREY: Thank you. 3 MS. LEIDIGH: So it is the responsibilities of the 4 parties, not just the agreements themselves. 5 C.O. CAFFREY: Thank you very much, Ms. Leidigh. 6 Please proceed, Mr. Jackson. 7 MR. JACKSON: Thank you. Mr. Guinee, you indicated 8 that there are anadromous fish restoration plan policies 9 that have been established by the United States Fish and 10 Wildlife Service; is that correct? 11 MR. GUINEE: I'm actually here to testify as a 12 witness on biology and not on policy. 13 MR. JACKSON: All right. Is there a biological need 14 for the present -- or for the natural winter-run habitat 15 above Shasta Dam in order to recover the species, in your 16 opinion? 17 MR. BIRMINGHAM: Objection. Asked and answered. 18 MR. JACKSON: I think it was asked but not answered. 19 MR. BIRMINGHAM: I think it was answered. He said, 20 "No." 21 C.O. CAFFREY: You did say, "No," Mr. Guinee? 22 MR. GUINEE: Actually, the way that I answered it is 23 that the Anadromous Fish Restoration Program has identified 24 habitat restoration measures downstream of Shasta that 25 would contribute to that restoration. So I answered it, I CAPITOL REPORTERS (916) 923-5447 3250 1 guess, you could say -- 2 C.O. CAFFREY: So is this a different question in 3 your mind? 4 MR. GUINEE: No. I guess what I was saying is that 5 there are measures that were identified in that program 6 that would restore winter-run chinook habitat downstream of 7 Shasta. And National Marine Service is responsible for the 8 recovery of winter-run chinook salmon. 9 C.O. CAFFREY: All right. Thank you, sir. 10 Go ahead, Mr. Jackson. 11 MR. JACKSON: Is that a "No", Mr. Guinee, that the 12 original habitat is no longer necessary? 13 MR. GUINEE: Yeah, I can make it a "no" for you. 14 MR. JACKSON: All right. Then in your mind is there 15 any biological reason to have more water running into 16 Shasta Lake for the winter-run salmon? 17 MS. GOUDE: I'm con -- could you repeat the question? 18 MR. JACKSON: Yes, I could. 19 MS. GOUDE: Also, what you mean by, "additional water 20 running into Shasta." 21 MR. JACKSON: Has the United States Fish and Wildlife 22 Service identified any activity in the watershed above Lake 23 Shasta as being detrimental to the recovery plans for the 24 winter-run salmon? 25 MR. GUINEE: I can say I personally haven't done that CAPITOL REPORTERS (916) 923-5447 3251 1 evaluation. 2 MR. JACKSON: Do you know of any United States Fish 3 and Wildlife Service, or to your knowledge, NMFS's 4 activities which are necessary to recover the winter-run 5 salmon that are to take place above Shasta Lake? 6 MR. GUINEE: I'm not familiar with those, if there 7 are any. 8 MR. JACKSON: Calling your attention to the 9 Sacramento River below Keswick Dam, has there been any 10 identification made of a necessity for additional water in 11 the stretch from Keswick Dam to Chico Landing? 12 MR. GUINEE: Could you be more specific? 13 Identification where? When? 14 MR. JACKSON: You have an Anadromous Fish Restoration 15 Plan, do you not? 16 MR. GUINEE: Yes, the Fish and Wildlife Service does, 17 right. 18 MR. JACKSON: Does that plan show that there is 19 presently -- that the present releases from Keswick Dam are 20 sufficient to meet the water goals of the Anadromous Fish 21 Restoration Plan? 22 MR. GUINEE: I think the Anadromous Fish Restoration 23 Plan has identified flows downstream of Keswick to maintain 24 habitat for chinook salmon and steelhead. 25 MR. JACKSON: And those flows are presently adequate CAPITOL REPORTERS (916) 923-5447 3252 1 to meet the plan's flow regime? 2 MR. BRANDT: I'm going to object to the question on 3 the grounds that it's ambiguous. 4 C.O. CAFFREY: Do you understand the question? 5 MR. GUINEE: No. I was going to ask him to clarify 6 it. 7 C.O. CAFFREY: Please, clarify it. 8 MR. JACKSON: I will do that. Do you have any 9 information to indicate -- indicating that present flows 10 from Keswick Dam are inadequate for the purpose of the 11 recovery plan? 12 MR. GUINEE: I haven't compared those flows to what 13 the recovery plan proposed. 14 MR. JACKSON: So to your knowledge there is no -- you 15 have no knowledge of additional water needed from the 16 stretch -- on the stretch of the Sacramento River from 17 Keswick to Chico Landing? 18 MR. GUINEE: Correct. I haven't done that evaluation 19 referring to the recovery plan. 20 MR. JACKSON: Then what, proportionality, are you 21 talking about on the Sacramento River that's necessary, 22 different than what's released today? 23 MR. BRANDT: Objection. Misstates the testimony. Is 24 he talking about proportionality -- 25 C.O. CAFFREY: Could you use the mic, Mr. Brandt. CAPITOL REPORTERS (916) 923-5447 3253 1 MR. BRANDT: Yes. Objection. Misstates his 2 testimony as to -- I don't think he said anything about 3 proportionality specifically. 4 MR. GUINEE: Right. I was going to add to that, my 5 testimony focused on improved flows in the Mokelumne and 6 the Yuba Rivers to help the Board's Water Quality Control 7 Plan. 8 MR. JACKSON: So you are not testifying as to 9 additional flows needed on any river except the Yuba and 10 the Mokelumne? 11 MR. GUINEE: For purposes of Phase IV I limited my 12 testimony to just the Yuba and the Mokelumne Rivers. 13 MS. GOUDE: I, actually, provided testimony about the 14 biological needs of contribution to mimic the natural 15 hydrograph within the system, but as a biologist and not as 16 a hydrologist and not describing in detail the flows. But 17 the needs for various ecological parameters to help restore 18 and recover the Delta fishes including Delta smelt and 19 Sacramento splittail. 20 MR. JACKSON: All right. But, Ms. Goude, you made -- 21 in your indication that there is additional flow necessary, 22 were you considering anadromous fish, or only Delta native 23 fishes? 24 MS. GOUDE: In my testimony I discussed the Delta 25 Native Fishes Recovery Plan which, in fact, included San CAPITOL REPORTERS (916) 923-5447 3254 1 Joaquin salmon and discussed the needs of different 2 anadromous fish. Although, I spend most of my waking hours 3 dealing with endangered species, and specifically Delta 4 smelts and the proposed Sacramento splittail. I do have 5 knowledge on those other species and the need of 6 contribution of different estuaries -- to the estuary from 7 these various tributaries on a biological basis. 8 MR. JACKSON: Have you had an opportunity, Ms. Goude, 9 to review the State Board's EIR? 10 MS. GOUDE: Only portions of it. 11 MR. JACKSON: Are you familiar with the EIR in regard 12 to flows from Keswick to Chico Landing? 13 MS. GOUDE: No, I am not. I am not a hydrologist; 14 I'm a biologist. 15 MR. JACKSON: Well, I'm asking the question in terms 16 of the biology. It seems that the State Board's EIR seems 17 to indicate that there is presently more water in the river 18 the way the operation is done now than would be necessary 19 under the Anadromous Fish Restoration Plan. 20 MR. BIRMINGHAM: Objection. Ms. Goude testified that 21 she's not reviewed the EIR. And, therefore, the question 22 lacks foundation. 23 C.O. CAFFREY: As a matter of fact, it wasn't a 24 question, it was a statement or an argument. I'm going to 25 sustain Mr. Birmingham's objection. CAPITOL REPORTERS (916) 923-5447 3255 1 Mr. Jackson, the witnesses -- I recall that 2 Mr. Brandt made, during the course of his discussion of the 3 objection, he raised the fact that these witnesses have 4 certain expertise and are not prepared to answer questions, 5 necessarily, on a broader scope. There's nothing wrong 6 with that. Your direct is your direct, and if you don't 7 know the answer to a question you may simply state as 8 you've been doing. 9 Please, proceed, Mr. Jackson. 10 MR. JACKSON: I'll move to the bottom and work up. 11 Let's talk about the Delta smelt. What's wrong with the 12 Delta smelt at the present time? 13 MS. GOUDE: Well, as I think I stated three weeks 14 ago, if I went through all the threats for Delta smelt we'd 15 be here a long time. But basically there's been outflow 16 issues, entrainment, contaminants, loss of habitat both as 17 it is in the sense of water and as it is in physical issues 18 as it pertains to wetlands and shallow spawning areas. 19 MR. JACKSON: All right. Let's deal with those one 20 at a time. What is the entrainment problem? 21 MR. GOUDE: There's numerous factors for entrainment 22 including various agricultural, municipal power plant 23 diversions and the federal and state pumps as well as 24 probably other factors that I can't think of right now. 25 MR. JACKSON: All right. Are the federal pumps part CAPITOL REPORTERS (916) 923-5447 3256 1 of the entrainment problem? 2 MS. GOUDE: The state and federal pumps are part of 3 an issue. 4 MR. JACKSON: And what is the affect of those pumps 5 on the Delta smelt? 6 MS. GOUDE: Well, I don't know what you mean by 7 "affect." You know, beneficial or adverse affect? I'm 8 assuming that you're claiming adverse affect. And it 9 depends on the water year type, the distribution of where 10 the fish are. There's a lot of factors that go into Delta 11 smelt biology distribution that have to come into play. 12 MR. JACKSON: Do reverse flows caused by the pumping 13 in the Delta affect Delta smelt? 14 MS. GOUDE: I would, again, say that if the Delta 15 smelt population is in Suisun Bay or Suisun Marsh, probably 16 not. If they're in the Central Delta, there could be 17 affects. And it depends, again, on the water year type and 18 the distribution of the population. The population can 19 split. And there can be the various pods to the population 20 in different areas within the system. 21 MR. JACKSON: Does the operation of the Bureau's 22 cross channel gates affect the Delta smelt? 23 MS. GOUDE: It could if it affects the hydrology 24 based again on the distribution of the Delta smelt. But 25 then in the biological opinions for OCAP and others, we CAPITOL REPORTERS (916) 923-5447 3257 1 have tried to address those affects and have actually 2 worked in conjunction with the Bureau of Reclamation to 3 operate the channel to reduce the issues for Delta smelt as 4 well as winter-run. 5 MR. JACKSON: As part of your preparation to testify 6 here today did you review the alternatives in the State 7 Board's EIR? 8 MS. GOUDE: I had -- not for today, but I had 9 previously looked at comments that we provided. But, 10 again, I did not review it in detail. There was other 11 people that actually work for me that did that and I 12 reviewed their documents. 13 MR. JACKSON: All right. In regard to Delta smelt, 14 you talked about the need for outflow, I believe. Isn't it 15 true that the United States Fish and Wildlife Service gave 16 a no-jeopardy opinion to alternative two in the State 17 Board's hearing? 18 MS. GOUDE: I don't remember -- I don't exactly know 19 what you mean by "alternative two in the State Board 20 hearing." We did a biological opinion on OCAP, which is 21 the operation of the Central Valley Project and the State 22 Water Project. 23 MR. JACKSON: And you give a no-jeopardy opinion on 24 the present operation? 25 MS. GOUDE: We gave a no-jeopardy opinion which had CAPITOL REPORTERS (916) 923-5447 3258 1 to deal with the project description of those various 2 things. But that biological opinion, actually, talked 3 about that it was a phased implementation of water rights. 4 And, in fact, discussed the State Water Board processes and 5 the future actions that may take place with the idea that 6 there would be incremental increases in benefits to Delta 7 smelt over time from the contributions from the cumulative 8 watersheds. 9 MR. JACKSON: The question -- well, let me ask 10 directly: Are you saying that the present operations cause 11 jeopardy? 12 MS. GOUDE: No. Actually, what I said was that the 13 opinion was based on the idea that the State Board was 14 going to be doing an implementation of water rights and 15 that there would be phased implementation of benefits. And 16 the issue of jeopardy also has to look at whether the 17 operation is continuing on for a hundred years versus three 18 to five years in a different window. 19 And that was part of the discussion within the 20 entire scope of the opinion. The opinion is over a hundred 21 pages. And there's a large portion of it that describes 22 this, basically, the history and the outcome into the 23 action. 24 MR. JACKSON: In your no-jeopardy opinion, was 25 inadequate flows on the Sacramento River recognized? CAPITOL REPORTERS (916) 923-5447 3259 1 MS. GOUDE: Let's talk about what an actual 2 biological opinion does. The biological opinion, you're 3 consulting a project description that's put before you and 4 you're analyzing that as it relates to the base condition 5 of the Delta smelt. You're not, necessarily, saying what 6 you would need for recovery. In addition, as I said -- 7 stated previously, you were looking at a timeline of two -- 8 you know, of three to five years. 9 MR. JACKSON: Are you saying that the United States 10 Fish and Wildlife Service has evidence that indicates that 11 if the present operation continues of the state and federal 12 pumps without contribution from anyone else that there 13 would be jeopardy? 14 MS. GOUDE: You, first of all, can't prejudge a 15 biological opinion and claim that there's a jeopardy or 16 nonjeopardy until you have the analysis before you and 17 you're actually consulting on the action before you. All I 18 can say is that the perception and the way we did the 19 biological opinion was the idea that the State Board was 20 going to go into the implementation phase and that we would 21 be asked to deal with maybe a new OCAP at some future date. 22 And at that time we would analyze the affects on those 23 fish. And you also have to look at what those fish are, in 24 fact, doing and how they're surviving and recovering at the 25 time and place. CAPITOL REPORTERS (916) 923-5447 3260 1 MR. JACKSON: So at the present time you have no 2 information indicating that the present operation of the 3 state and federal pumps and their responsibility for inflow 4 into the Delta is inadequate for purposes of jeopardy? 5 MS. GOUDE: I didn't say that. I said that the 6 analyses that we have been actually looking at the issues 7 and dealing with -- there's a lot of factors that are 8 affecting Delta smelt. And they are not just the pumps. 9 The issue has to deal with export and inflow and many other 10 different actions that need to be taking place to help 11 restore and recover that species. 12 MR. JACKSON: Are you familiar with the term "X2"? 13 MS. GOUDE: Yes, I am. 14 MR. JACKSON: X2 is a position measured from 15 Golden -- the Golden Gate Bridge of the two part per 16 thousand salinity to isohaline; is that right? 17 MS. GOUDE: There are three places that are discussed 18 within the opinion, Roe Island, the confluence and Chipps 19 Island -- three measuring points, excuse me. 20 MR. JACKSON: Is the present X2 under the Board's 21 Water Quality Plan inadequate, in your opinion, for outflow 22 for the Delta smelt? 23 MS. GOUDE: They're not necessarily correlated in a 24 total relationship of outflow and where X2 is. It also has 25 to do with export. And it's a pretty complicated analysis. CAPITOL REPORTERS (916) 923-5447 3261 1 The issue is that we did the analysis with X2. The 2 critical habitat for Delta smelt discusses where X2 and how 3 the outflow should be as well as the recovery plan that 4 also documents and discusses it. 5 MR. JACKSON: And the X2 location picked by the 6 biological opinion is the one that we're operating under 7 today; is that correct? 8 MS. GOUDE: This is something that I've spent a great 9 deal of the last few years trying to explain to people is 10 that the X2 has -- that was in the biological opinion was 11 based on what existing conditions were. 12 And the point is that, actually, the state and 13 federal projects ended up in some years in some issues; in 14 wet and normal years there was more days of X2 than was, 15 actually -- which is the limit within the State Board. And 16 that is the way we looked and analyzed the opinion. 17 Basically Delta smelt to say it kind of -- you know, made 18 hay when it was in above normal and wet years and have 19 trouble in critically dry years when there's not a lot of 20 flexibility. 21 MR. JACKSON: Are there issues other than flow and 22 exports which are determinative, or important to the 23 determination of whether Delta smelt survived? 24 MS. GOUDE: As I said before, there's a number of 25 factors. CAPITOL REPORTERS (916) 923-5447 3262 1 MR. JACKSON: All right. Does the Asian clam and its 2 expansion in the Delta change the prognosis for the Delta 3 smelt? 4 MS. GOUDE: It's a factor, but I don't think it's the 5 major factor. 6 MR. JACKSON: Is there a problem at the bottom of the 7 food chain in the Delta caused by the Asian clam? 8 MS. GOUDE: I don't think that that is the issue, as 9 I stated before. The issue has to deal with a lot of other 10 factors. Basically Delta smelt do not do very well when 11 they're not in the right habitat and they don't have 12 adequate outflow and water. 13 MR. JACKSON: Does closing the cross channel gates 14 help them in the spring in order to be in the right 15 habitat? 16 MS. GOUDE: It depends, again, on the water year 17 type, where Delta smelt are and a lot of other factors 18 including the operations of the facilities and numerous 19 issues within the Delta. 20 MR. JACKSON: If the cross channel gates are closed 21 during the spring, does that mean that the X2 moves 22 downstream on the Sacramento River? 23 MS. GOUDE: I think that's too broad of a 24 generalization. I don't think you can, actually, determine 25 just by how you deal with it. Again, I think there's a lot CAPITOL REPORTERS (916) 923-5447 3263 1 of hydrologic factors going on. Again, I'm not a 2 hydrologist. And I generally ask for the stupid 3 interpretation from hydrologists to interpret it back to a 4 biologist. 5 MR. JACKSON: Well, it's even more complicated when 6 you get lawyers in. But what evidence do you have that 7 indicates that the Delta smelt is declining on the basis of 8 inadequate flows on the Sacramento side of the Delta? 9 MS. GOUDE: I don't think you can point to any one 10 factor. As the listing discussed it, and the critical 11 habitat as well as the recovery plan, there was a number of 12 factors that affected Delta smelt distribution, and health 13 and flow was one of them. And one of them was based on the 14 analysis of increase and change of export rates from the 15 '80s on and how those were affected. 16 MR. JACKSON: It's clear that a lowering of export 17 rates would be helpful to the Delta smelt, is it not, from 18 the evidence? 19 MS. GOUDE: I don't think anything, unfortunately, 20 with Delta smelt is very clear. 21 MR. JACKSON: Then, if you got an additional million 22 acre-feet of water off the Sacramento River it might not do 23 anything for the Delta smelt? 24 MS. GOUDE: I know one thing is that if it's in 25 really wet years Delta smelt also don't do very well, CAPITOL REPORTERS (916) 923-5447 3264 1 because they tend to be flushed out into the San Francisco 2 Bay. I think it's a pretty broad question of what I would 3 do with a million acre-feet. And I guess I would want to 4 know how you would operate the entire system, including 5 your export rates and everything else that goes into it. 6 It's just not a simple answer. 7 MR. JACKSON: What other species does the United 8 States Fish and Wildlife Service Endangered Species Act 9 section monitor in the Delta? 10 MS. GOUDE: Well, there's a number of species that 11 Fish and Wildlife Service is concerned about. Delta smelt 12 is listed, but Sacramento splittail is a proposed species. 13 And in the past, the long-fin smelt is -- have been 14 considered for listing and is now a species of special 15 concern. 16 MR. JACKSON: Both the splittail and the long-fin 17 smelt were proposed for listing, were they not? 18 MS. GOUDE: Yes, but the long-fin was withdrawn. 19 MR. JACKSON: And the Sacramento splittail? 20 MS. GOUDE: It's still a proposed species. We're 21 being sued on it. 22 MR. JACKSON: Has the United States Fish and Wildlife 23 Service done any review of what environmental affects would 24 take place on the tributary watersheds if more water were 25 released on those watersheds? CAPITOL REPORTERS (916) 923-5447 3265 1 MS. GOUDE: I think that's kind of a broad question. 2 I'm kind of confused, I mean there is a lot of tributaries. 3 MR. JACKSON: Is there anything, any evidence in 4 regard to the Delta smelt that indicate larger flows on the 5 Feather River, for instance, would be useful to the Delta 6 smelt? 7 MR. BRANDT: Objection, in the evidence. I'm not 8 sure that this witness knows what all the evidence is. Are 9 we talking in the Board's evidence? 10 MR. JACKSON: No. Let me take it back. 11 C.O. CAFFREY: Please, clarify, Mr. Jackson. 12 MR. JACKSON: Yes. Do you have any information that 13 indicate that Delta smelt would be affected one way or the 14 other by actions taken on the Feather River? 15 MS. GOUDE: The way I have presented it and have to 16 deal with it is the contributions that mimics the natural 17 hydrograph from a number of tributaries. And basically in 18 my earlier testimony that I guess was stricken and then 19 restated, was that you would -- that you cannot look at 20 just cutting off certain portions of the system, or 21 tributaries. That you need to look at the entire system 22 and add contributions throughout it. 23 And so I don't have like a specific answer of the 24 amount, or the issue, but I think that you should be 25 analyzing that on a biological basis and looking at that. CAPITOL REPORTERS (916) 923-5447 3266 1 And then as to your first question as it relates to: Is 2 there any other species that I guess could be harmed? The 3 point that I want to make is that everyday the Fish and 4 Wildlife Service has to weigh and balance those biological 5 questions and, in fact, have worked with the National 6 Marine Fishery Service on the winter-run to maximize the 7 benefits for those species for their, hopeful, recovery. 8 MR. JACKSON: And in doing that, working with 9 National Marine Fishery Service in regard to the 10 winter-run, has there ever been an indication that there is 11 inadequate flow between Keswick Dam and Chico Landing? 12 MS. GOUDE: I really can't answer what you consider 13 "inadequate." And I haven't done that analysis. 14 MR. JACKSON: And you have no specific information in 15 regard to the Feather River and what additional flows would 16 do either to the environment of the Feather River or to 17 Delta smelt in the Delta? 18 MS. GOUDE: All I can say is that's the kind of 19 analysis that should be done for equitable and looking at a 20 fair-share contribution throughout the various tributaries. 21 And we've done that in other systems and we could do it 22 again. 23 MR. JACKSON: But today as you sit here you have no 24 opinion in regard to what additional flows would do for the 25 Delta smelt on the Feather River? CAPITOL REPORTERS (916) 923-5447 3267 1 MS. GOUDE: I have no opinion on the amount of flows, 2 but I definitely have opinions. 3 MR. JACKSON: Now, the Sacramento splittail you said 4 is a species of concern? 5 MS. GOUDE: No, the Sacramento splittail is a 6 proposed -- 7 MR. JACKSON: A candidate? 8 MS. GOUDE: No, a proposed species. 9 MR. JACKSON: What is the difference between a 10 proposed species and a candidate species? 11 MS. GOUDE: A proposed species has been in the 12 federal register. It's been opened for discussion -- a 13 proposed rule is in the federal register. In fact, it's 14 been opened to probably -- I don't want to misspeak, but I 15 think two comment periods, at least, for people to comment 16 on, you know, the scientific basis of the listing, proposed 17 rule. 18 MR. JACKSON: Now, the Sacramento splittail has lost 19 numbers in the last 40 or 50 years; is that right? 20 MS. GOUDE: There are certain indexes and certain 21 analyses that shows that there has been a decline on 22 splittail. 23 MR. JACKSON: And is that decline caused by too 24 little water or too much water on the Sacramento River? 25 MS. GOUDE: The decline has been caused from a lot of CAPITOL REPORTERS (916) 923-5447 3268 1 different factors, just like as it has been for Delta 2 smelt. 3 MR. JACKSON: But in the case of the splittail on the 4 Sacramento River, one of the things identified has been the 5 fact that there is more flow on the Sacramento River now 6 than there was in the state of nature in the summer; isn't 7 that true? 8 MS. GOUDE: I really don't know. I'm just going by 9 what you say. 10 MR. JACKSON: Don't do that, I'm not a witness. Now, 11 in regard to the fair share of these particular streams, do 12 you know how much of the Sacramento system is controlled by 13 the Bureau of Reclamation? 14 MS. GOUDE: I don't -- you mean as far as which ones 15 they control, the dams, or which percentage, or -- 16 MR. JACKSON: What percentage of water flow is 17 controlled by dams owned by the Bureau of Reclamation on 18 the Sacramento River system? 19 MS. GOUDE: I really don't know. 20 MR. JACKSON: If the number were 80 percent, would 21 you, then, indicate that the Bureau ought to carry 80 22 percent of the improvement? Is that what you mean by, 23 "fair share"? 24 MS. GOUDE: No. What I, actually, mean by "fair 25 share" is to -- that an analysis or contribution from CAPITOL REPORTERS (916) 923-5447 3269 1 various tributaries which should make up the percentage to 2 try to mimic the hydrograph. I wasn't meaning a percentage 3 on which operation. I guess that if there's a portion from 4 the -- from Shasta, that would be a contribution as well as 5 others. 6 MR. JACKSON: And from Trinity that would be -- 7 that's the Bureau facility, is it not? 8 MS. GOUDE: Doesn't Trinity go the other direction? 9 MR. JACKSON: No, it doesn't anymore. 10 MS. GOUDE: Well -- 11 MR. JACKSON: Most of the Trinity -- my clients in 12 Trinity County would be glad to tell you that most of the 13 Trinity goes into Shasta from Keswick release. 14 C.O. CAFFREY: Well, we're now getting into testimony 15 by attorneys. 16 MS. GOUDE: Yeah. 17 C.O. CAFFREY: I want to remind Mr. Jackson and other 18 lawyers, you may only answer a clarifying question of the 19 witness with regard to the question and not testify with 20 regard to -- 21 MR. JACKSON: All right. 22 C.O. CAFFREY: -- facts as you may perceive them. 23 Thank you, sir. 24 MR. JACKSON: Is it your opinion that the Bureau 25 should be excluded from the fair share of these rivers? CAPITOL REPORTERS (916) 923-5447 3270 1 MS. GOUDE: No, it is not. 2 MR. JACKSON: Okay. Or Department of Water Resources 3 should also do their fair share? 4 MS. GOUDE: No. It's contribution from the various 5 areas. 6 MR. JACKSON: All right. Now, that's in terms of the 7 flows. Who owns the diversion facilities in the Delta that 8 cause the problem for Delta smelt? 9 MS. GOUDE: Well, if I have it correct, there's about 10 1800 agricultural diversions. There's the State water 11 facilities. There is -- Contra Costa has some facilities. 12 There is a facility at PG&E and there's a number of others 13 that I don't know. 14 MR. JACKSON: And you would assume that those folks 15 should, then, all contribute based upon what they divert? 16 MS. GOUDE: No. I think that the issue has to deal 17 with a different issue for them as it relates to recovery 18 and different actions. And I can't say that they all have 19 equal affects within the system. 20 MR. JACKSON: Yes. I was going to call your 21 attention to the agricultural diversions and particularly 22 in the summer in the Delta. Is there any indication that 23 you know that the agricultural diversions in the Delta in 24 the summer are causing problems for Delta smelt? 25 MS. GOUDE: I don't have the information, but I have CAPITOL REPORTERS (916) 923-5447 3271 1 no indication of that. 2 MR. JACKSON: You have no indication that the 3 agricultural diversions are causing problems for the Delta 4 smelt; is that -- 5 MS. GOUDE: Correct. Right. 6 MR. JACKSON: Thank you. Do you have any indication 7 that the agricultural diversions in the Delta are causing 8 problems for the splittail? 9 MS. GOUDE: There are some preliminary studies that 10 are underway on affects for ag diversions. And there's a 11 lot of different types of ag diversions in the Delta at 12 various levels. And so you can't really generalize all of 13 them. 14 MR. JACKSON: And this is an ongoing thing that it 15 hasn't finished yet, this scientific review? 16 MS. GOUDE: Correct. 17 MR. JACKSON: Now, in terms of taking a look at the 18 flows on the rivers on the Sacramento side, are the present 19 flows enough to move sediment in flood events? 20 MS. GOUDE: I really don't know. 21 MR. JACKSON: Do you know whether or not there are 22 problems in the habitat below the dams on the Sacramento 23 side for salmon, first? 24 MR. GUINEE: Are you asking me? 25 MR. JACKSON: Yes. CAPITOL REPORTERS (916) 923-5447 3272 1 MR. GUINEE: Okay. Yes. The Anadromous Fish 2 Restoration Program did look at habitat below Keswick Dam 3 and the Sacramento River, identified problems and also 4 identified habitat restoration measures to help resolve 5 some of the problems. 6 MR. JACKSON: In that review did it indicate that 7 there were inadequate flows on the Sacramento River for the 8 habitat? 9 MR. GUINEE: In some years, in some months, yes, 10 there were inadequate flows. 11 MR. JACKSON: Wasn't that also true in a state of 12 nature in summer months on the Sacramento side, didn't it 13 get a lot -- first, we'll do it in two parts. 14 Wasn't that also true in the state of nature? 15 MS. GOUDE: I can answer. One issue is it may have 16 been in the state of nature, as you say it, in historical 17 times but there was a lot more fish. 18 MR. JACKSON: And there was a lot more habitat, 19 wasn't there? 20 MS. GOUDE: I think it goes together. 21 MR. JACKSON: You don't think that the limitation on 22 habitat is something that will limit the fish number? I 23 mean being restricted below these dams now. 24 MR. GUINEE: Yes. Limitation of habitat can limit 25 fish numbers. That's why the Anadromous Fish Restoration CAPITOL REPORTERS (916) 923-5447 3273 1 Program identified habitat restoration measures. 2 MR. JACKSON: And in the Anadromous Fish Restoration 3 Program, again, were there habitat problems identified on 4 the main stem of the Sacramento River? 5 MR. GUINEE: Yes, there were. The Anadromous Fish 6 Restoration Program looked at Central Valley wide 7 anadromous fish streams in the Sacramento all the way 8 south, you know, to the Feather, the Yuba, the American, 9 Mokelumne and the San Joaquin system. 10 MR. JACKSON: Calling your attention to the main stem 11 of the Sacramento River, what habitat problems were 12 identified? 13 MR. GUINEE: I, actually, did not review the plan. 14 It's -- it's an exhibit that is in the Board's record. All 15 I can say right now is that the record -- you know, the 16 exhibit speaks for itself. I don't have them memorized. 17 MR. JACKSON: Now, on the San Joaquin side -- 18 C.O. CAFFREY: Mr. Jackson, excuse me for 19 interrupting you, you've completed an hour of 20 cross-examination; how much more time do you think you're 21 going to need? 22 MR. JACKSON: I would think probably 30 minutes. 23 C.O. CAFFREY: All right. Let's take our morning 24 break now and then we'll be back a little after 10:30. All 25 right. Thank you. CAPITOL REPORTERS (916) 923-5447 3274 1 (Recess taken from 10:20 a.m. to 10:36 a.m.) 2 C.O. CAFFREY: All right. We're back on the record. 3 Mr. Jackson, you may proceed with your cross-examination. 4 MR. JACKSON: Thank you. Yes, Mr. Guinee, do you 5 have any information which indicates that there are not 6 enough flows on the Sacramento River to provide for 7 flushing flows for the steelhead and the winter-run salmon? 8 MR. GUINEE: Earlier, I mentioned Anadromous Fish 9 Restoration Program identified habitat restoration measures 10 downstream of Keswick. And I wanted to add to that that 11 they include things like flows and temperatures as well as 12 gravel rehabilitation screening, unscreened diversions and 13 riparian restoration, et cetera, but it did not identify 14 any flows as far as flushing flows for steelhead. 15 MR. JACKSON: Mr. Guinee, since in our last 16 conversation three weeks ago I think you indicated that all 17 of the steelhead spawning on the Sacramento River was -- 18 was, essentially, blocked now by dams. Where does the 19 United States Fish and Wildlife Service plan to raise 20 steelhead? 21 MR. GUINEE: I don't think in my testimony that I 22 said that steelhead spawning was blocked by dams. I think 23 the steelhead do spawn downstream of Keswick Dam in the 24 main stem of the Sacramento River. 25 MR. JACKSON: Is there anything about the present -- CAPITOL REPORTERS (916) 923-5447 3275 1 let's step back. Were you present to hear the discussion 2 about the hypolimnion in these dams and how important it is 3 to keeping water cool for spawning and rearing purposes 4 below dams? 5 MR. GUINEE: Present where and when? 6 MR. JACKSON: In this hearing. 7 MR. GUINEE: I may have been. I don't recall that 8 specific discussion. 9 MR. JACKSON: Well, let's step back, then. It is 10 critical to retain water in dams for cold water releases 11 below the dams for spawning and rearing purposes, is it 12 not? 13 MR. GUINEE: Yeah. That is a management approach 14 that is taken at reservoirs. 15 MR. JACKSON: And if you don't have any access above 16 the reservoirs, that's really the only place you can raise 17 cold water fish, isn't it, right below the dams? 18 MR. GUINEE: Could you be more specific? 19 MR. JACKSON: Let's say at Shasta. If Keswick and 20 Shasta Dam block access of steelhead and spring-run and 21 winter-run to their normal natural habitat, don't you have 22 to release water from the hypolimnion to keep the river 23 very cold in order to raise these fish flow below dams? 24 MR. GUINEE: I guess as an example using Shasta, 25 there's a temperature control device that allows the CAPITOL REPORTERS (916) 923-5447 3276 1 release of cold water to maintain spawning habitat for 2 winter-run chinook. 3 MR. JACKSON: And at Shasta, that area that the 4 hypolimnion that the cold water can affect is only about 50 5 miles long, right, down the river? 6 MR. GUINEE: Yeah, I'm not sure on the exact mileage, 7 but, generally, my understanding is the objective is around 8 the bend bridge area. 9 MR. JACKSON: And that's above the Red Bluff 10 diversion dam? 11 MR. GUINEE: That is correct. 12 MR. JACKSON: North of the Red Bluff diversion dam? 13 MR. GUINEE: That's correct. 14 MR. JACKSON: And if we used additional flows we 15 would either be using up the hypolimnion, the cold water 16 resource; or we would be adding warm water and raising the 17 temperature, won't we? 18 MR. GUINEE: Could you repeat your hypothetical? 19 MR. JACKSON: Well, the present flows are designed to 20 keep the water cold below the dam for a certain distance, 21 correct? 22 MR. GUINEE: If you're referring to the present 23 summer flows being released from Keswick, that's correct. 24 MR. JACKSON: All right. Now, calling your attention 25 to the summer and these flows, if you released more flow CAPITOL REPORTERS (916) 923-5447 3277 1 down the river you would be either using up your cold 2 water, or you would be required to put warmer water into 3 the river, would you not? 4 MR. GUINEE: All of that would depend on the storage 5 amount of water in the reservoir and how much cold water 6 you, actually, had in the reservoir. So, yes, it does use 7 that cold water, but it may not necessarily use it up. 8 MR. JACKSON: And that would be true -- may not 9 necessarily use it up, but the same thing would be true at 10 Oroville and Folsom and Bullards Bar and New Melones and 11 any of the dams on the San Joaquin side, would it not? 12 MR. GUINEE: Situations are different, because in 13 general those reservoir releases aren't being used to 14 manage for winter-run chinook salmon. 15 MR. JACKSON: Okay. Ms. Goude, do you have an 16 estimate of the amount of water that you believe is 17 necessary in this proportional approach in addition to what 18 is presently being released? 19 MS. GOUDE: No, I do not. 20 MR. JACKSON: To your knowledge, have there been any 21 studies to determine that? 22 MS. GOUDE: What we've looked on -- is talking about 23 the concept and discussing the alternative five that was 24 presented within the State Board's own documents. 25 MR. JACKSON: Do you know the amount of water that CAPITOL REPORTERS (916) 923-5447 3278 1 would be necessary over and above what we have presently 2 today from the Sacramento side in order to provide all of 3 the benefits that you believe extra flow could provide to 4 the Delta? 5 MS. GOUDE: I'm kind of confused. I thought I 6 answered that. No, I do not. 7 MR. JACKSON: Thank you. No further questions. 8 C.O. CAFFREY: All right. Thank you, Mr. Jackson. 9 Mr. Maddow. 10 ---oOo--- 11 CROSS-EXAMINATION OF THE DEPARTMENT OF INTERIOR 12 BY CONTRA COSTA WATER DISTRICT 13 BY ROBERT MADDOW 14 MR. MADDOW: Thank you, Mr. Chairman and Members of 15 the Board. I'm Robert Maddow appearing for the Contra 16 Costa Water District. I have a few questions which are -- 17 which are primarily, I think, for Ms. Goude. 18 Ms. Goude, as I understand it, the testimony that 19 you supplied, both your written testimony and your oral 20 testimony, has been offered on behalf of the Department of 21 the Interior; is that correct? 22 MS. GOUDE: That is correct. 23 MR. MADDOW: And as I understand your qualifications 24 and your testimony, you are familiar with the Bay-Delta 25 ecosystem and efforts to protect and restore it, is that CAPITOL REPORTERS (916) 923-5447 3279 1 also true? 2 MS. GOUDE: That is true. 3 MR. MADDOW: And, finally, I understand from your 4 testimony that you are familiar with the Memorandum of 5 Understanding -- Strike that. 6 You are familiar with the joint settlement 7 agreement which East Bay MUD has entered into with Fish and 8 Wildlife Service; is that correct? 9 MS. GOUDE: Correct. 10 MR. MADDOW: And it's that settlement agreement which 11 is the subject of Phase IV of this hearing, that's your 12 understanding? 13 MS. GOUDE: That is my understanding. 14 MR. MADDOW: Did the Fish and Wildlife Service 15 consult with the Federal Energy Regulatory Commission 16 regarding the Endangered Species Act implications of that 17 joint settlement agreement? 18 MS. GOUDE: That is correct. 19 MR. MADDOW: And when you performed that consultation 20 and did the analysis related to it, did you -- did either 21 the Fish and Wildlife Service or the Department of the 22 Interior determine the impacts of implementation of that 23 settlement agreement on the Bay-Delta ecosystem? 24 MS. GOUDE: No. It was based basically on the Lower 25 Mokelumne above Woodbridge. CAPITOL REPORTERS (916) 923-5447 3280 1 C.O. CAFFREY: Mr. Maddow, I'm sorry for interrupting 2 you. Could you pull that mic over to the other side of the 3 podium. I think they're having trouble hearing you in the 4 back of the room. 5 MR. MADDOW: I beg your pardon. I should have 6 brought up a smaller binder and I'll try and get this to 7 work better. 8 C.O. CAFFREY: Thank you, sir. 9 MR. MADDOW: Did any other analysis which you have 10 performed, or of which you are aware allow the Fish and 11 Wildlife Service to make any determinations of the impact 12 of that joint settlement agreement on the Bay-Delta 13 ecosystem, Ms. Goude? 14 MS. GOUDE: We did contract with a study with 15 Betty Andrews to look at three various alternatives on the 16 hydrology. 17 C.O. CAFFREY: That's it. 18 MR. MADDOW: Will that work better? 19 C.O. CAFFREY: It was audible. 20 MEMBER DEL PIERO: If we could just knock six inches 21 off of you, it would work fine. 22 C.O. CAFFREY: Mr. Maddow, it's going fine. Go 23 ahead. 24 MR. MADDOW: Is the result of that analysis in your 25 testimony? The analysis that you contracted for, is the CAPITOL REPORTERS (916) 923-5447 3281 1 result of that analysis anywhere in your testimony? 2 MS. GOUDE: Not really. I mean it hasn't been 3 entered into any exhibit that I know of. 4 MR. MADDOW: What I'm trying to get at, Ms. Goude, is 5 whether it's true that we cannot draw any real inferences 6 from your -- from -- excuse me, Fish and Wildlife Service's 7 signature on this settlement agreement regarding the 8 relationship between the water that would come down the 9 Mokelumne, if this joint settlement agreement is 10 implemented, and the Bay-Delta water quality flow dependent 11 objectives; is that correct? 12 MS. GOUDE: That is correct. 13 MR. MADDOW: So from the standpoint of the position 14 of the Department of the Interior regarding this joint 15 settlement agreement and its relationship to the Water 16 Quality Control Plan flow dependent objectives that is the 17 subject of Phase IV of this hearing, it's my understanding 18 that all the Board has before it is your testimony that 19 this settlement agreement was not intended to deal with the 20 Delta issues at all. Is that correct? 21 MS. GOUDE: That's correct. 22 MR. MADDOW: And as I recall on August 20th when you 23 first testified, you said that the joint settlement 24 agreement does not provide the contribution needed from the 25 Mokelumne watershed. Do you recall saying that? CAPITOL REPORTERS (916) 923-5447 3282 1 MS. GOUDE: Yes, I do. 2 MR. MADDOW: And I believe you, also, said that the 3 Mokelumne River -- Strike that. 4 I believe that you also said that the east side 5 streams, generally, which as I understood your testimony 6 includes the Mokelumne River, are very deficient in 7 providing the flow needed for the Bay-Delta objectives. Is 8 that correct, Ms. Goude? 9 MS. GOUDE: I don't remember if I said, "very 10 deficient," but I said that there needed to be 11 contribution. 12 MR. MADDOW: If I might take just a moment. 13 Ms. Goude, I'm going to show you a copy of page 3177 of the 14 transcript of the testimony which you gave on August the 15 20th. And I'd refer you to the sentence which begins at 16 line 12. And I would appreciate it if you would just read 17 that for me. 18 MS. GOUDE: Beginning on line 12? 19 MR. MADDOW: I believe the sentence begins on line 20 12. 21 MS. GOUDE: "Again, there have been -- if you rely 22 just on state water projects and the federal water 23 projects, as we have in the past, under operations of the 24 OCAP opinion we are very deficient on the east side streams 25 in providing the necessary flow." CAPITOL REPORTERS (916) 923-5447 3283 1 So I did say it. 2 MR. MADDOW: Okay. Thank you. And, Ms. Goude, 3 during the course of this hearing there has been testimony 4 about the concept of backstop for settlement agreements. 5 Are you familiar with that terminology? 6 MS. GOUDE: Somewhat. 7 MR. MADDOW: I'll try and give a summary statement of 8 it and see if it's similar to your familiarity. In 9 essence, to the extent that a particular settlement 10 agreement does not result in a sufficient amount of flow to 11 meet the Water Quality Control Plan flow dependent 12 objectives, that someone else would provide additional 13 water to help meet those objectives. That's my general 14 understanding of "backstop." 15 Is that consistent with yours? 16 MS. GOUDE: Yes, it is. 17 MR. MADDOW: If the contributions made by East Bay 18 MUD pursuant to the joint settlement agreement are not 19 sufficient to meet what the Department of the Interior 20 believes the proportionate flows needed from the Mokelumne 21 for the Bay-Delta water quality objectives, where does the 22 Department expect that additional water to come from, 23 Ms. Goude? 24 MS. GOUDE: I don't know. 25 MR. MADDOW: Were you present when Mr. Russell from CAPITOL REPORTERS (916) 923-5447 3284 1 the Department of Water Resources testified in regard to 2 the proposed joint settlement agreement on the Mokelumne? 3 MS. GOUDE: Yes, I was. 4 MR. MADDOW: And did you hear him testify that the 5 State Water Project would be willing to contribute up to 25 6 percent of the so-called "backstop flows" required in 7 support of that agreement? 8 MS. GOUDE: Yes, I was. 9 MR. MADDOW: And did you also hear Mr. Russell's 10 testimony that when the Delta is in balanced conditions and 11 the state project is making up 25 percent of the backstop, 12 that it was his general understanding that under the 13 coordinated operations agreement that the Central Valley 14 Project could make up the additional 75 percent of the 15 deficiencies? 16 MS. GOUDE: I heard him say that. 17 MR. MADDOW: As the Department of the Interior's 18 representative here today, is it your testimony that the 19 Central Valley Project will contribute 75 percent of the 20 water necessary to backstop the East Bay MUD settlement 21 agreement? 22 MS. GOUDE: I really have no idea on that issue. 23 MR. MADDOW: You have no testimony to offer to this 24 Board in Phase IV as to whether the Central Valley Project 25 is willing to contribute anything with regard to CAPITOL REPORTERS (916) 923-5447 3285 1 backstopping the joint settlement agreement? 2 MS. GOUDE: The only thing I can speak to is the 3 biological issues and as it relates to Endangered Species 4 Act implementation at that point that the Department of 5 Interior, specifically the Bureau of Reclamation, would do 6 something of that nature. The Service would have to 7 analyze the information and look at the biological opinion 8 of OCAP. Basically, if it affects the hydrology of the 9 system, OCAP could be reopened. 10 MR. MADDOW: Thank you. Are you familiar with the 11 Central Valley Project Improvement Act Restoration Fund? 12 MS. GOUDE: I'm -- I'm familiar with it, but I don't 13 get to really administer it. 14 MR. MADDOW: Neither do I. Can you tell us your 15 understanding of how the -- well, strike that. That's too 16 open-ended. 17 Is it your understanding that the restoration fund 18 payments are, essentially, a surcharge on payments that are 19 made for purchased water for CVP contractors? 20 MS. GOUDE: That's my understanding, yes. 21 MR. MADDOW: So if a CVP contractor is not taking any 22 CVP water, it wouldn't have fed anything into the 23 restoration fund. Is that your understanding? 24 MS. GOUDE: That's my understanding. 25 MR. MADDOW: So as based upon the testimony that we CAPITOL REPORTERS (916) 923-5447 3286 1 heard from East Bay MUD earlier in Phase IV that they've 2 taken -- essentially, that they've taken no water pursuant 3 to their CVP contract, is it your understanding that they 4 then have paid nothing into the CVPIA restoration fund, 5 Ms. Goude? 6 MS. GOUDE: I don't really know that. But if it's 7 based on that and information, then, I guess that they 8 would not have. 9 MR. MADDOW: Now, in your testimony you spoke of the 10 need of fair contributions from various streams to make up 11 the total that is needed for the ecosystem. Is that a fair 12 summation of what you testified to? 13 MS. GOUDE: Right, to try and mimic the natural 14 hydrograph. 15 MR. MADDOW: Now, to the extent that sufficient water 16 is just not available on a particular stream, or the 17 proportion of Bay-Delta contribution that you have 18 testified about, a diverter from that stream could provide 19 money with which water could be purchased to make up the 20 deficiency; is that correct? 21 MS. GOUDE: I hadn't really thought it through to 22 that point. I think that would be something that would 23 have to be analyzed at a later date as well as a lot of 24 other factors. 25 MR. MADDOW: Okay. And last subject, very briefly, CAPITOL REPORTERS (916) 923-5447 3287 1 Ms. Goude, did you hear the testimony earlier in this phase 2 about East Bay MUD's contract negotiations for American 3 River water from the Central Valley Project? 4 MS. GOUDE: Yes, I did. 5 MR. MADDOW: And I'm referring here to the 6 negotiations that were described as currently being 7 underway. Are you familiar with that? 8 MS. GOUDE: I am. 9 MR. MADDOW: Do you know whether impacts on either 10 watershed contributions, or the public trust issues, about 11 which you've testified, whether those issues have been 12 studied in relationship to the contract that is currently 13 under negotiation? 14 MS. GOUDE: Currently the Service is -- will -- is 15 working with the Bureau of Reclamation and will have to 16 consult on the affects of the American River watershed as 17 it relates to -- as it relates to the Delta and Delta 18 smelt. 19 MR. MADDOW: I have nothing further, Mr. Chairman. 20 Thank you. Thank you, Ms. Goude. 21 C.O. CAFFREY: Thank you, Mr. Maddow. Mr. Nomellini. 22 Good morning. 23 // 24 // 25 // CAPITOL REPORTERS (916) 923-5447 3288 1 // 2 ---oOo--- 3 CROSS-EXAMINATION OF THE DEPARTMENT OF THE INTERIOR 4 BY CENTRAL DELTA PARTIES 5 BY DANTE JOHN NOMELLINI 6 MR. NOMELLINI: Thank you, Mr. Chairman. Dante John 7 Nomellini for Central Delta parties. My first question is 8 of Ms. Goude. 9 Your statement in your testimony at page 1 is that 10 until roughly proportional inflows are restored, recovery 11 of the Bay-Delta ecosystem will be problematic; is that 12 correct? 13 MS. GOUDE: That's correct. 14 MR. NOMELLINI: Now, when you speak about, "roughly 15 proportional inflows," are you talking about all the 16 tributaries to the Delta? 17 MS. GOUDE: I'm talking about basically a concept in 18 the tributaries that make the contribution that have an 19 affect. 20 MR. NOMELLINI: All right. Does the American River 21 constitute one of the tributaries that you believe has an 22 affect on the Delta? 23 MS. GOUDE: Yes. 24 MR. NOMELLINI: And does the Consumnes River 25 constitute one of the tributaries? CAPITOL REPORTERS (916) 923-5447 3289 1 MS. GOUDE: Yes. 2 MR. NOMELLINI: And does the Mokelumne River 3 constitute one of the tributaries? 4 MS. GOUDE: Yes. 5 MR. NOMELLINI: Does the Calaveras River constitute 6 one of the rivers that you believe would have an affect on 7 the Delta? 8 MS. GOUDE: I would assume so. But the Calaveras 9 gets kind of convoluted down by Stockton. 10 MR. NOMELLINI: All right. And what about the 11 Stanislaus River? 12 MS. GOUDE: Yes. 13 MR. NOMELLINI: And the Tuolumne River? 14 MS. GOUDE: Yes. 15 MR. NOMELLINI: Yes? 16 MS. GOUDE: Yes. 17 MR. NOMELLINI: Merced River? 18 MS. GOUDE: Yes. 19 MR. NOMELLINI: Chowchilla River? 20 MS. GOUDE: I'm getting in over my head. I really -- 21 you know -- I can tell you the major ones, but if you get 22 down to Orestimba, I'm definitely having -- 23 MR. NOMELLINI: I'm not there yet. So with regard to 24 the Chowchilla River you're saying you don't know if it has 25 any significant impact in terms of your statement of the CAPITOL REPORTERS (916) 923-5447 3290 1 need for a proposed -- 2 MS. GOUDE: What I'm basically saying is I'm a 3 biologist. And the hydrologists would need to look at 4 those systems and come up with the analysis and how they 5 affect it. And you could start at alternative five that 6 the State Board's own information provided. 7 MR. NOMELLINI: Okay. You had clear responses on the 8 Merced, Tuolumne, Stanislaus, Calaveras -- somewhat 9 questionable on Calaveras, Mokelumne, Consumnes and 10 American. Are you telling me, now, that you would defer to 11 the hydrologists with regard to your conclusions as to 12 those rivers? 13 MS. GOUDE: I don't defer to the hydrologists. 14 Actually, I guess I don't defer to many people, but I would 15 confer with them and look at the biology as it relates to 16 the hydrologic information. 17 MR. NOMELLINI: Okay. Going back to the question, 18 what I would like, to just kind of set the stage for my 19 questions, I'm trying to understand which tributaries you 20 believe are important to make a contribution to provide the 21 roughly proportional inflows necessary to the recovery of 22 the Bay-Delta ecosystem. 23 That's really what I'm trying to get at. And, 24 again, is it your testimony that the Chowchilla River is 25 not important to that roughly proportional inflow statement CAPITOL REPORTERS (916) 923-5447 3291 1 that you made in your testimony? 2 MS. GOUDE: Basically, what I was trying to provide 3 in my testimony is to mimic the natural hydrograph. And 4 you would look at these different contributions. And to 5 say -- what happens is if you basically say one is 6 unimportant, then the next one, the next 1 percent becomes 7 unimportant. And then the next 10 percent is unimportant. 8 And pretty soon all those 1 percent, 5 percent and 10 9 percent adds up and you eliminate your flexibility to deal 10 with the biological needs of the species. 11 MR. NOMELLINI: Okay. Is that need in terms of water 12 at the Delta as opposed to the need for water in the 13 various tributaries? 14 MS. GOUDE: There's benefits that happen, for salmon 15 for example, coming out -- where they are in the tributary. 16 So there is aquatic benefits within the tributaries, but 17 it's also, as it relates to the Delta smelt, within the 18 Delta. 19 MR. NOMELLINI: All right. So that your answer would 20 be that it's important with regard to both the tributary 21 conditions and the in-Delta conditions? 22 MS. GOUDE: Correct, for different species in 23 different life stages. 24 MR. NOMELLINI: All right. Going back to my listing 25 of rivers, is the Fresno River important to this statement CAPITOL REPORTERS (916) 923-5447 3292 1 of roughly proportional inflows to the Bay-Delta recovery? 2 MS. GOUDE: I would, again, say that I haven't looked 3 at each and every stream or system and I'm not a 4 hydrologist. I would simply go back to my original answer, 5 that you would need to look at the biology and look at the 6 mimicking of the natural hydrograph and come up with a 7 situation that looks at the overall system. 8 MR. NOMELLINI: All right. And with regard to the 9 main stem of the San Joaquin, is your opinion the same as 10 with the Fresno River? 11 MS. GOUDE: Correct. 12 MR. NOMELLINI: All right. Now, with regard to the 13 proportional inflows, you've indicated that in your opinion 14 that the objective should be to mimic the natural 15 hydrograph. Is that correct? 16 MS. GOUDE: Could you state it, again? 17 MR. NOMELLINI: Yeah. With regard to the 18 proportional inflows for the various tributaries your 19 testimony indicated that the objectives should be to mimic 20 the natural hydrograph? 21 MS. GOUDE: Correct. 22 MR. NOMELLINI: All right. Now, in terms of 23 mimicking the natural hydrograph, are you talking about the 24 same amount of flow from each tributary that occurred 25 absent water development? CAPITOL REPORTERS (916) 923-5447 3293 1 MS. GOUDE: No. 2 MR. NOMELLINI: Are you talking about the pattern of 3 flow that occurred absent natural development? 4 MS. GOUDE: I would say it's more of a pattern. 5 MR. NOMELLINI: All right. How important is the 6 level of flow -- assuming we had the pattern, how important 7 is the level of flow with regard to the restoration of the 8 Bay-Delta ecosystem? 9 MS. GOUDE: Well, I would answer that in my maybe -- 10 in my -- in the way I see things biologically and the way 11 you have to deal with operations within the Delta, that as 12 you contribute from various tributaries it increases your 13 flexibility throughout the whole system. And it increases 14 your -- and when I'm saying not just flexibility, it's your 15 flexibility to operate the system for the benefit of 16 fisheries, but also probably allows additional ease for 17 operation for water interests. 18 MR. NOMELLINI: Going back, now -- I'm not sure you 19 answered my question, at least so I could understand the 20 answer. If we mimic the natural hydrograph for the Delta, 21 my question was: 22 How important is the amount of flow in that 23 natural hydrograph pattern? And you gave me this response, 24 that the more we have from various tributaries the more 25 flexibility we have. I -- are you saying that the amount CAPITOL REPORTERS (916) 923-5447 3294 1 of water that comes down is not important? 2 MS. GOUDE: No, I wasn't saying that. But you were 3 asking for an incremental amount and I can't provide that. 4 MR. NOMELLINI: All right. Without getting to the 5 exact amount, is it your opinion that there should be some 6 minimum level of flow, inflow to the Delta in the pattern 7 of the natural -- I say, "natural," hydrograph as existed 8 before development? 9 MS. GOUDE: I -- I guess -- are you meaning -- I 10 guess -- could you repeat that? I don't really understand 11 it. 12 MR. NOMELLINI: Yeah. Are you saying that it's not 13 important to have a minimum flow? 14 MS. GOUDE: No, I'm not saying that's not important 15 to have a minimum flow. 16 MR. NOMELLINI: Okay. 17 MS. GOUDE: I'm just saying that I don't know 18 necessarily what it would be and how you would -- you know, 19 it would basically be that you would look at mimicking the 20 hydrograph as a timing. And that the actual amount for 21 each tributary, I don't have the information. 22 MR. NOMELLINI: All right. With regard to the actual 23 amount of inflow to the Delta regardless of tributary, 24 would you agree that the 1995 Water Quality Control Plan 25 for the Delta represents a sufficient requirement to CAPITOL REPORTERS (916) 923-5447 3295 1 protect endangered species such as smelt? 2 MS. GOUDE: As I said before for Delta smelt, the 3 Water Quality Control Plan only does certain things. And 4 there's a lot of other issues and protective measures that 5 we would need to deal with for Delta smelt for their 6 eventual and hopeful recovery. 7 MR. NOMELLINI: Over and above the requirements in 8 the 1995 Water Quality Control Plan, could you generally 9 describe what those elements are that are required for the 10 protection of Delta smelt? 11 MS. GOUDE: Well, for example, improvement of 12 habitat, reduction in losses from diversions, reductions in 13 contaminant loading. 14 MR. NOMELLINI: Now, with regard to the testimony by 15 Mr. Guinee, you indicated in your exhibits, Exhibit 9B, DOI 16 9B, you indicated that the -- this is for the Mokelumne 17 River, that the MOU critical-year flow was less than the 18 alternative five critical-year flow. 19 Is that correct? 20 MR. GUINEE: That is correct. Would it be helpful, I 21 have an overhead for that. 22 MR. NOMELLINI: That's fine. 23 MR. GUINEE: Would that be helpful to put that on the 24 Board? 25 MR. NOMELLINI: Yeah, sure. Go ahead. CAPITOL REPORTERS (916) 923-5447 3296 1 C.O. CAFFREY: Sir, is this part of your original 2 testimony? 3 MR. GUINEE: That's correct. 4 C.O. CAFFREY: This is one of the exhibits? 5 MR. GUINEE: Exhibit 9B. 6 C.O. CAFFREY: All right. Thank you, sir. 7 MR. GUINEE: Can everyone see that? 8 C.O. CAFFREY: Close enough for government work. 9 MR. GUINEE: All right. Thank you. 10 MS. WHITNEY: It's out of focus, though? 11 MR. GUINEE: Yeah, my eyes are bad. Where is the 12 focus, Vicki? 13 C.O. CAFFREY: Right there. Now, you've got it. 14 There you go. 15 MR. NOMELLINI: Okay. Mr. Guinee, could you show us 16 where on the graph in May, the MOU critical years? 17 MR. GUINEE: Okay. If you look at the graph you can 18 see along the bottom are the months October through 19 September. And, then, if you look at May you can see a 20 graphical depiction, or you can look at the bottom and we 21 presented those numerically as well. 22 MR. NOMELLINI: All right. So in May it's of a 23 critical year the MOU has 75 cubic feet per second; is that 24 correct? 25 MR. GUINEE: Actually, no. In May of a critical year CAPITOL REPORTERS (916) 923-5447 3297 1 the MOU has 15. This line here. 2 MR. NOMELLINI: Oh, okay. I see. Excuse me. 3 MR. GUINEE: They're a little bit offset. 4 MR. NOMELLINI: We'll blame your attorney for putting 5 them off line. Okay. So they have 15 in May. And you've 6 indicated on the graph that the alternative five critical, 7 which is representative of unimpaired flow as I understand 8 your testimony, reflects a higher number; is that correct? 9 MR. GUINEE: Actually, alternative five critical 10 isn't representing unimpaired flow. It's the flow 11 identified in the Draft Environmental Impact Report. The 12 Board's Draft EIR that identified a May flow of 506. And, 13 again, I just use the numbers for illustration purposes 14 that explain the general principle here. 15 MR. NOMELLINI: All right. Is it your testimony, 16 that the Mokelumne River flow should be increased for May 17 of a critical year above the MOU critical year? 18 MR. GUINEE: That's correct. In my testimony I 19 indicated that I used these graphs to show the general 20 principle that in critical years, particularly in those 21 spring months, the MOU does not provide as good a flow as 22 the Board's own environmental document. 23 And so I think as I said in my testimony that 24 these improved flows consistent with the Board's document 25 would help meet the Water Quality Control Plan as well as CAPITOL REPORTERS (916) 923-5447 3298 1 the narrative salmon objective. 2 MR. NOMELLINI: Is it your testimony that the 3 increase in flow for May in a critical year to the 4 alternative five critical-year level is necessary to 5 protect any fish species in the Delta? 6 MR. GUINEE: I didn't testify that the specific 7 amount identified in the Draft EIR was needed. What I'm 8 testifying to is that there is a magnitude of difference 9 between the two. And that the flows in the Draft EIR would 10 be more consistent with mimicking the natural hydrograph 11 and protecting the water quality in the Delta as well as 12 benefiting the species in the Delta. 13 MR. NOMELLINI: Is it important to increase the flow 14 on the Mokelumne River in a critical year in May over and 15 above the MOU 15 cubic feet per second? 16 MR. GUINEE: Yes, I believe it is. 17 MR. NOMELLINI: Okay. Why is that? 18 MR. GUINEE: Okay. As I stated earlier, the 19 importance of the spring flows in addition to contributing 20 to the Delta water quality as well as flow objectives also 21 in the Mokelumne River during the month of May is the 22 outmigration period for juvenile chinook salmon. And so it 23 would have another benefit of helping to convey those fish 24 downstream. 25 MS. GOUDE: I would like to answer for Delta smelt CAPITOL REPORTERS (916) 923-5447 3299 1 and as it relates to splittail is that it would add to the 2 variability and help to the contribution to those portions 3 of the streams especially where Delta smelt are on the San 4 Joaquin side of the system. 5 MR. NOMELLINI: All right. Let's take salmon first. 6 So the additional flow that you desired for May of a 7 critical year from the Mokelumne is important to assist the 8 outmigration of salmon from the Mokelumne; is that correct, 9 Roger? 10 MR. GUINEE: That's correct. And also consistent 11 with the Board's narrative salmon objective in the Water 12 Quality Control Plan. 13 MR. NOMELLINI: And it's also your testimony that you 14 cannot quantify what that amount should be to be released 15 from the Mokelumne for the particular purpose of assisting 16 in the outmigration of the salmon? 17 MR. GUINEE: Right. For this analysis I did not 18 quantify whether 506 csf was the right amount. My intent 19 was to demonstrate to the Board that an alternative five 20 approach, as Ms. Goude said earlier, one that mimics the 21 natural hydrograph and includes contributions from the 22 watersheds upstream of the Delta is a good approach for 23 meeting the Delta water quality as well as the narrative 24 salmon objective. 25 MR. NOMELLINI: All right. If you were to quantify CAPITOL REPORTERS (916) 923-5447 3300 1 the amount of additional flow over and above the MOU for 2 May of a critical year, what factors would you consider? 3 MR. GUINEE: I'd go back to Cay's hydrologist friends 4 and I'd ask them to do some hydrologic evaluations that 5 would look at, not only inflow, you know, to the reservoir 6 and storage in the reservoir as it would vary over the 7 period of record. But, then, again, look at how the flows 8 downstream would provide for the habitat needs of the 9 salmon and steelhead that reside in the Lower Mokelumne 10 below Camanche. 11 MR. NOMELLINI: And you haven't done that, is that 12 your testimony? 13 MR. GUINEE: That's correct. For purposes of this 14 hearing I just did a simple comparison of the MOU flows to 15 the Draft EIR alternative five flows. 16 MR. NOMELLINI: All right. You would agree, would 17 you not, that such an analysis would be required in order 18 to conclude that more flow is required in May of a critical 19 year over and above the MOU critical, would you not? 20 MS. GOUDE: I -- 21 MR. GUINEE: Yeah -- 22 MR. NOMELLINI: I'm asking, this is for Roger. And 23 if you want to add -- 24 MR. GUINEE: That's correct. And I think the Draft 25 EIR made an effort to do that analysis which, you know, is CAPITOL REPORTERS (916) 923-5447 3301 1 acknowledged in the Draft EIR wasn't a complete evaluation 2 in terms of the assumptions relative to actual operations. 3 But it does, I think, give us an indication, a general 4 trend as the Draft EIR states, as to how the flows could be 5 improved in the Mokelumne to help meet the Delta Water 6 Quality Control Plan. 7 MR. NOMELLINI: Ms. Goude, would you like to add to 8 that? 9 MS. GOUDE: Yeah. The point that needs to be made is 10 that based on the analysis on the biological opinion that 11 we did with -- on the FERC consultation with East Bay MUD, 12 it was only looking at a project description as it related 13 to their contributions, or their affect above Woodbridge on 14 the Lower Mokelumne. It wasn't to deal with the Delta 15 contribution. And that we knew and discussed within that 16 opinion the need for an analysis, or that they would -- on 17 the State Board, that it didn't preclude that in that 18 biological opinion. It's expressly discussed at the State 19 Board hearing. 20 MR. NOMELLINI: You would acknowledge that there is a 21 portion of the Mokelumne River between the boundary of the 22 Delta and Woodbridge, would you not? Do you know that 23 there is a stretch of the Mokelumne River that exists 24 between Woodbridge and the boundary of the Delta? 25 MS. GOUDE: Correct. CAPITOL REPORTERS (916) 923-5447 3302 1 MR. NOMELLINI: Okay. So that stretch of the river 2 was overlooked in your dealing with the consultation on the 3 FERC analysis with regard to the MOU on the Mokelumne with 4 East Bay MUD? 5 MS. GOUDE: No, it wasn't overlooked. Basically when 6 the Service consults on an issue, they're consulting on a 7 project description and action given to us before the 8 consulting agency, which was the -- was FERC, the Federal 9 Energy Regulatory Commission. And that was what the 10 alternative was that we reviewed and analyzed, but we 11 expressly discussed that there was other issues within the 12 Delta that hadn't been dealt with. 13 MR. NOMELLINI: All right. I'm talking about the 14 stretches of river now between Woodbridge, which you 15 testified to me was described in the project description 16 and the boundary of the Delta, talking about that stretch 17 of the river. 18 Is it your testimony that that stretch of the 19 river was not analyzed in coming to your conclusions with 20 regard to the MOU on the Mokelumne? 21 MS. GOUDE: That is correct, it was not analyzed. 22 MR. NOMELLINI: All right. Is there someone else in 23 the Department of the Interior that has the responsibility 24 for quantifying what the additional flow contribution 25 should be from the Mokelumne River? CAPITOL REPORTERS (916) 923-5447 3303 1 MS. GOUDE: I don't understand your question. 2 MR. NOMELLINI: All right. Who in the Department of 3 Interior has the responsibility for quantifying whatever 4 the additional requirement is that you desire for flow on 5 the Mokelumne over and above the MOU? 6 MS. GOUDE: At the point -- I mean, the Fish and 7 Wildlife Service has the biological responsibility to deal 8 with biological issues as it relates to providing those 9 inputs. But we have to depend -- and we depend on the 10 Bureau of Reclamation and others that deal with the 11 modeling and the hydrology of the system to provide us the 12 information as well as the State Board's own analysis to 13 look at. Since we don't necessarily -- we have a few 14 hydrologists that we depend on within our own agency, we 15 use others and then we provide the biological input. 16 MR. NOMELLINI: Okay. So, then, is it fair to state 17 that it's up to somebody else to determine what amount of 18 additional flow should be forthcoming from the Mokelumne 19 over and above the MOU to protect salmon smelt in the Delta 20 as well as whatever fish there are between Woodbridge and 21 the Delta? 22 MS. GOUDE: No. What it would be is that we would 23 look at the analysis and provide our biological input into 24 that analysis. And we would be part of it, but we wouldn't 25 necessarily -- we're not necessarily the hydrologists in CAPITOL REPORTERS (916) 923-5447 3304 1 the agency that deals with the hydrology. We're the 2 biologists that provide that input and technical assistance 3 and information. 4 MR. NOMELLINI: So Phase IV is not the point at which 5 you're going to address the actual fishery needs for 6 additional flow in the Mokelumne in a critical year in May; 7 is that correct? 8 MS. GOUDE: Well, the point that we're here on was on 9 the issue of a settlement agreement and whether that was 10 sufficient for meeting the fishery needs. And we're 11 providing the information that we have to date on the -- on 12 the hydrology that's before us showing that it doesn't 13 mimic the proportional need and that there could be further 14 analysis by hydrologists to determine whether the State 15 Board's alternative five meets that hydrology information 16 that you're discussing or not. 17 MR. NOMELLINI: All right. Does that mean that the 18 MOU critical-year flow in May is not sufficient? 19 MS. GOUDE: Sufficient for what? 20 MR. NOMELLINI: For protection of Delta smelt in the 21 Delta and salmon in the Mokelumne. 22 MS. GOUDE: It's -- basically it does not meet and it 23 doesn't provide a contribution much more over than what the 24 Fish and Game agreement. There is a small increase in 25 critically dry years, but it is a very small increase. CAPITOL REPORTERS (916) 923-5447 3305 1 And, again, it's very similar to what I think was the 1961 2 Fish and Game agreement, I think it was 61. 3 MR. NOMELLINI: All right. Is it your testimony that 4 the MOU flow in May of a critical year is not sufficient to 5 protect Delta smelt and salmon -- Delta smelt in the Delta 6 and salmon in the Mokelumne? 7 MS. GOUDE: What I said is that -- 8 MR. NOMELLINI: I know what you said. 9 MS. GOUDE: Right. 10 MR. NOMELLINI: If you understand my question, can 11 you answer my question as to whether or not it's your 12 opinion that that flow in May of a critical year under the 13 MOU is not sufficient? 14 MS. GOUDE: Your question is very broad. And there's 15 a lot of reasons for the affects. And to say it in that 16 way it's very hard to define it any more than the way I 17 answered it. 18 MR. NOMELLINI: Would you agree that the MOU flow on 19 the Mokelumne River in May of a critical year is sufficient 20 to protect Delta smelt in the Delta and salmon in the San 21 Joaquin -- I mean salmon in the Mokelumne, excuse me? 22 MS. GOUDE: Is the flow sufficient -- 23 MR. NOMELLINI: Yes. 24 MS. GOUDE: -- for Delta smelt? 25 MR. NOMELLINI: For protection of Delta smelt in the CAPITOL REPORTERS (916) 923-5447 3306 1 Delta and salmon on the Mokelumne. 2 MS. GOUDE: I'll answer that it does not provide what 3 the Service's and my testimony discusses in the biological 4 needs to mimicking the natural hydrograph, it does not do 5 that. 6 MR. NOMELLINI: And is it fair to state that you have 7 no opinion as to the sufficiency of that particular flow? 8 And that, "particular flow," means the MOU critical-year 9 May flow on the Mokelumne. 10 MS. GOUDE: I have an opinion that it is very similar 11 to the 1961 flow in certain year types. 12 MR. NOMELLINI: Is that good or bad for Delta smelt 13 in the Delta and salmon on the Mokelumne? 14 MS. GOUDE: I -- I think it's bad. 15 MR. NOMELLINI: Okay. So can you give me the reason 16 why you would, therefore, not conclude that that flow, the 17 MOU critical year flow in May on the Mokelumne was not 18 sufficient to protect Delta smelt in the Delta and salmon 19 on the Mokelumne? 20 MS. GOUDE: I -- I view that it's too low. But I 21 think the issue, or the problem I'm having answering your 22 question is: How close is alternative five to what is the 23 mimicking the action? 24 MR. NOMELLINI: All right. What -- what affect, 25 beneficial or otherwise, does flow from the Mokelumne have CAPITOL REPORTERS (916) 923-5447 3307 1 on Delta smelt in the Delta? 2 MS. GOUDE: Well, again, it depends on where Delta 3 smelt are distributed, that year type and what type of year 4 it is. And if you have an additional contribution of flows 5 that -- and the Delta smelt are distributed within the 6 Eastern or Central Delta, it can improve transport and a 7 contribution within the situation and provide additional 8 flexibility in those spring months. 9 MR. NOMELLINI: All right. Could you describe what 10 you mean by "transport," with regard to Delta smelt? 11 MS. GOUDE: Delta smelt don't swim very well. They 12 basically act as particles when they're very young. And 13 they can be moved into the preferred habitat, or areas that 14 they would do better. 15 MR. NOMELLINI: Is this in a smolt stage, or a larval 16 stage? Or those might be the wrong terms. Maybe you can 17 explain -- 18 MS. GOUDE: Right. They're generally, if I remember 19 right, probably under 20 -- they're very small fish. 20 They're under 20 millimeters approximately. 21 MR. NOMELLINI: So they get transported with the 22 flow? 23 MS. GOUDE: Correct. 24 MR. NOMELLINI: Is that your testimony? 25 MS. GOUDE: But it also has to do with providing CAPITOL REPORTERS (916) 923-5447 3308 1 adequate habitat and different -- and when I say "habitat" 2 for Delta smelt it's not -- it's habitat as it relates to 3 food and places that they do better in -- in feeding within 4 the water column. 5 MR. NOMELLINI: So if Delta smelt were at this small 6 stage in the interior of the Delta and, in particular, in 7 the Mokelumne system within the Delta, then flows from the 8 Mokelumne would be important to transport those smelt. Is 9 that what your testimony is? 10 MS. GOUDE: Yes. But there are -- Delta smelt aren't 11 necessarily in the Mokelumne. They're -- they're providing 12 flows where they're in the Eastern Delta. And it's just 13 one of the tributaries that might help and contribute to 14 their distribution within the Delta system. 15 MR. NOMELLINI: Are Delta smelt ever in the Mokelumne 16 within the Delta? 17 MS. GOUDE: Well, actually, you mean the Mokelumne 18 within the Delta. 19 MR. NOMELLINI: Correct. 20 MS. GOUDE: Yes. 21 MR. NOMELLINI: All right. Where in the Mokelumne 22 within the Delta have been -- have Delta smelt been 23 located? 24 MS. GOUDE: Well, basically -- throughout -- the 25 critical habitat and distribution of Delta smelt basically CAPITOL REPORTERS (916) 923-5447 3309 1 has the legal Delta as well as in Suisun Bay or Suisun 2 Marsh. And a few other tributaries, excuse me. 3 MR. NOMELLINI: So evidence indicates that Delta 4 smelt have been found in the -- are you familiar with the 5 two forks of the Mokelumne -- 6 MS. GOUDE: Right. 7 MR. NOMELLINI: -- within the Delta, the north and 8 south fork? 9 MS. GOUDE: Right. 10 MR. NOMELLINI: Is there any evidence that Delta 11 smelt have been found in those two forks of the Mokelumne? 12 MS. GOUDE: They're in the Mokelumne within the 13 Delta. 14 MR. NOMELLINI: Within the two forks of the 15 Mokelumne? 16 MS. GOUDE: Yes, they are and so are Sacramento 17 splittail. 18 MR. NOMELLINI: All right. With regard to the 19 transport of Delta smelt and, particularly, those smelt 20 that happen to be in the north and south fork of the 21 Mokelumne, where would we want to transport those smelt in 22 terms of getting flow from the Mokelumne? 23 MS. GOUDE: You would -- you are trying to move them 24 more out of the central and southern Delta closer to Suisun 25 Marsh and Suisun Bay. CAPITOL REPORTERS (916) 923-5447 3310 1 MR. NOMELLINI: And why would you want to do that? 2 MS. GOUDE: Because there is a lot of habitat within 3 Suisun Marsh and a lot of -- Suisun Bay. And there's a lot 4 of small, shallow habitat. Plus there is less impact areas 5 within the Delta -- I mean within those areas, so you're 6 moving them away from some of the areas of impact. 7 MR. NOMELLINI: All right. And would one of the 8 areas of impact be the State Water Project and CVP pumping 9 facilities? 10 MS. GOUDE: Yes. 11 MR. NOMELLINI: Would you describe the flow desired 12 for transport of Delta smelt from the Mokelumne as a pulse 13 flow? 14 MS. GOUDE: No. Because if you're trying to mimic 15 the hydrograph, you know, the Delta smelt are residence 16 within the Delta and Delta systems. And so, basically, you 17 need flows and habitat throughout the year. So I won't 18 look at just one month, necessarily. 19 MR. NOMELLINI: All right. With regard to salmon and 20 the importance of flow from the Mokelumne over and above 21 the MOU critical flow in May, critical-year flow in May, 22 how is that flow important to salmon, in more specifics if 23 you can, other than just helping the outmigration? How 24 does it help the outmigration of salmon from the Mokelumne? 25 MR. GUINEE: Okay. Flows in the Mokelumne in May CAPITOL REPORTERS (916) 923-5447 3311 1 will provide habitat for the downstream migrating salmon, 2 the smolts to go downstream below Woodbridge and continue 3 their downstream migration, you know, into the Mokelumne 4 and to the -- or excuse me, down the Lower Mokelumne below 5 Woodbridge and into the Delta. And, then, of course, 6 they'll continue out to the ocean as well. 7 MR. NOMELLINI: Okay. When you say "habitat," are 8 you saying there's no water in the river without additional 9 flow -- 10 MR. GUINEE: No, I'm not -- 11 MR. NOMELLINI: -- in May? 12 MR. GUINEE: I'm saying flows of the magnitude more 13 consistent with the alternative five flows provide deeper 14 depths, higher velocities, more available habitat to escape 15 from predators and avoid those predators, et cetera, as 16 well as to, you know, continue swimming downstream in 17 forage, feeding, et cetera. 18 MR. NOMELLINI: All right. So the deeper depth is 19 important because there's more water than in any particular 20 cross-section of the river, is that what your testimony is? 21 MR. GUINEE: That's correct. 22 MR. NOMELLINI: So if the channel was full already, 23 then, there wouldn't be much to gain from more flow, is 24 that -- is that a fair statement? 25 MR. GUINEE: In the Lower Mokelumne if the channel CAPITOL REPORTERS (916) 923-5447 3312 1 was full and there were adequate depths and velocities for 2 those fish to swim downstream, that would be a fair 3 statement. 4 MR. NOMELLINI: All right. With regard to velocity 5 in the Mokelumne River, and in particular that portion 6 within the Delta, how does the velocity relate to the 7 velocity of flow -- velocity of the river flow relate to 8 the velocities that are experienced due to tidal affects? 9 MR. GUINEE: I haven't done that analysis in the 10 downstream reaches of the Mokelumne. 11 MR. NOMELLINI: Is it significant -- I mean, are 12 these increased velocities to the flow of the Mokelumne 13 more important in the upper reaches of the portion of the 14 Mokelumne of the Delta than they are in the lower reaches 15 of the Mokelumne of the Delta? 16 MR. GUINEE: I actually haven't done that specific of 17 an analysis. 18 MS. GOUDE: I -- if the tidal -- outflows are 19 important for Delta smelt as it relates to also how the -- 20 it is within the Delta. And, obviously, the tides are of 21 influence, also. But you can't negate that outflow isn't 22 an important factor or transport flow for Delta smelt. 23 MR. NOMELLINI: All right. Assuming that outflow is 24 important, is it important that the flow come from the 25 Mokelumne rather than some other tributary with regard to CAPITOL REPORTERS (916) 923-5447 3313 1 your stated concern, which I assume is with regard to Delta 2 smelt? 3 MS. GOUDE: Well, I guess I wouldn't think that if 4 you're having contribution -- that if you're talking about, 5 as I said before, a contribution from a number of 6 tributaries, it's important to look through the whole 7 system and have contribution from a number of them. 8 For example, if you simply shifted it from the 9 American River, that would have affects with the Delta 10 smelt and splittail as they are within the northern Delta. 11 So if everybody -- and you're dealing with a fair and 12 equitable contribution from a number of tributaries, it 13 provides better restoration opportunities for the fish 14 within the Delta and within those tributaries. You cannot 15 trade the flows from the American River, for example, and 16 say that that would be the same thing of the effects that 17 would be on the Mokelumne. 18 MR. NOMELLINI: Could we trade away the flow from the 19 Mokelumne and take the flow from the Stanislaus? 20 MS. GOUDE: I think that you need to look at each 21 system and how it contributes. And I think that you need 22 to look at the overall system and each tributary. 23 MR. NOMELLINI: And you haven't looked at that, have 24 you? 25 MS. GOUDE: You mean as far as biologically analyze CAPITOL REPORTERS (916) 923-5447 3314 1 each and every one after the hydrologists, no. 2 MR. NOMELLINI: Okay. With regard to the flow in the 3 Mokelumne and its importance to outmigration of salmon, 4 Mr. Guinee, would you categorize the flow that you think 5 might be necessary over and above the MOU critical-year 6 flow as a pulse flow? 7 MR. GUINEE: Pulse flow is a term that is used by 8 many to refer to that. I prefer to say it's an increase in 9 flows that would mimic the natural hydrograph to provide 10 good conditions for downstream migration of salmon. 11 MR. NOMELLINI: If I defined a pulse flow as a 30-day 12 period of flow, between April 15th and May 15th, is a pulse 13 flow important to outmigration of Mokelumne River salmon? 14 MR. GUINEE: You're speaking specifically in the 15 Mokelumne, now, below Woodbridge? 16 MR. NOMELLINI: Below Woodbridge is fair enough, yes. 17 MR. GUINEE: I think it would be accurate to say that 18 that would be important, but recognize that the 19 outmigration of salmon, the data shows it extends over a 20 longer period of time than just that 30 days. And so in 21 the Mokelumne you may have salmon outmigrating as early as 22 March and through June. So it would only help the salmon 23 outmigrating that specific 30-day period. 24 MR. NOMELLINI: Okay. Calling your attention to 25 Table 2-7, and I have an overhead for that. It was CAPITOL REPORTERS (916) 923-5447 3315 1 referred to in your testimony, Mr. Guinee, and it is Table 2 2-7 from the Environmental Impact Statement of the Board. 3 Let me put it on the screen. Is that clear enough? 4 C.O. CAFFREY: Yep. 5 MR. NOMELLINI: Mr. Stubchaer, you'll notice I got it 6 right the first time. 7 C.O. STUBCHAER: You're going to night school? 8 C.O. CAFFREY: You're going to engineering night 9 school, is that it? 10 MR. NOMELLINI: I'm going for my Master's. All 11 right. Mr. Guinee, up on the screen do you recognize that 12 to be the Table 2-7 of the environmental document? And I 13 don't know what that exhibit number is in our staff 14 exhibits, but -- 15 MR. GUINEE: Yes, it appears to be a page from the 16 Draft EIR, Table 2-7. 17 MR. NOMELLINI: All right. And that's page 2-31? 18 MR. GUINEE: Yeah, I'll take your word for it, it's 19 on 2-31. I don't have it in front of me. 20 MR. NOMELLINI: Okay. And then in your testimony you 21 referred to these particular flows as shown on 2-7 as 22 representative of the flows that you would like to see 23 mimicked on the Mokelumne; is that correct? 24 MR. BRANDT: Mischaracterizes the testimony. 25 C.O. CAFFREY: I didn't hear you, Mr. Brandt. CAPITOL REPORTERS (916) 923-5447 3316 1 MR. BRANDT: Mischaracterizes the testimony. 2 MEMBER DEL PIERO: Is he objecting? 3 MR. BRANDT: Yes. 4 C.O. CAFFREY: You want to try again, Mr. Nomellini? 5 MR. NOMELLINI: Yeah. Would you tell me what your 6 testimony was with regard to Table 2-7 and the Mokelumne 7 River flows? 8 MR. GUINEE: Yes. What I testified to was that in 9 looking at, for example, the Mokelumne River flows and you 10 see five year types, what I did was I took the critical 11 year type, designated by C, and the above normal type and 12 compared them to the MOU critical-year flows and the MOU 13 above normal year flows. 14 MR. NOMELLINI: And do you have any opinion as to 15 whether or not fish -- Strike that. 16 Do you have any opinion as to whether or not the 17 outmigration of Mokelumne River salmon would be better with 18 the flows represented on Table 2-7 as opposed to the MOU 19 flows? 20 MR. GUINEE: In general, as I mentioned, looking at 21 these flows and the trend, not the specific numbers, yes, 22 my opinion is flows of this magnitude would provide better 23 habitat for downstream migration of salmon in Mokelumne. 24 MS. GOUDE: And I'll answer for Delta smelt. Those 25 flows would provide benefits for Delta smelt, also. CAPITOL REPORTERS (916) 923-5447 3317 1 MR. NOMELLINI: Now, with regard to the Stanislaus 2 River and the representation of the flows in Table 2-7, 3 have you, Mr. Guinee, made any analysis of the relationship 4 of the Stanislaus River flows to what you'd like to see -- 5 in the Stanislaus River flows on Table 2-7 in relationship 6 to what you would like to see for outmigration of salmon on 7 the Stanislaus? 8 MR. GUINEE: My testimony did not include any 9 analysis for the Stanislaus. 10 MR. NOMELLINI: All right. Aside from your 11 testimony, have you made such analysis? 12 MR. BRANDT: Objection. Vague. 13 MR. NOMELLINI: Okay. With regard to salmon, 14 Mr. Guinee, do you agree that it would be helpful to 15 salmon, in general, to mimic the natural hydrology of the 16 various tributaries to the Delta? 17 MR. GUINEE: I think, generally, in the spring months 18 of the year that principle of mimicking the natural 19 hydrograph is a good way to manage for salmon. 20 MR. NOMELLINI: Is it possible, in your opinion, to 21 have too much flow over and above the -- what would occur 22 in the natural hydrograph for a particular river? 23 MR. GUINEE: Could you be more specific? 24 MR. NOMELLINI: Let's take the Stanislaus, do you 25 know what the minimum flow on the Stanislaus is for a CAPITOL REPORTERS (916) 923-5447 3318 1 critical year? 2 MR. GUINEE: I guess when you're talking about the 3 Stanislaus I'm aware that there's a minimum flow as well as 4 there's an interim New Melones flow operations' plan. So 5 which are you referring to? 6 MR. NOMELLINI: All right. Isn't it fair to state 7 that under the interim operating plan for New Melones the 8 minimum flow for the Stanislaus in May is 1500 cubic feet 9 per second? 10 MR. GUINEE: In general, that is pretty -- pretty 11 accurate. Although in critical years it may not remain at 12 1500 csf for the whole month, as I recall. I think it may 13 only be for a 31-day period, from April 15th to 14 May 15th. I'd have to go back and look specifically at the 15 interim ops plan. 16 MR. NOMELLINI: Do you know how to convert 1500 cubic 17 feet per second to thousands of acre-feet per month for 18 May? 19 MR. GUINEE: We're back to the math question. 20 C.O. CAFFREY: Did you go to University of Pacific? 21 MR. GUINEE: No. 22 C.O. CAFFREY: All right. Then, you don't have to do 23 the calculation. 24 MR. GUINEE: I did learn how to do math, but usually 25 we use calculators to do the conversion. CAPITOL REPORTERS (916) 923-5447 3319 1 MR. NOMELLINI: Okay. You would agree that 1500 2 cubic feet per second is roughly 3,000 acre-feet per day, 3 would you not? 4 MR. GUINEE: I would agree that's pretty close, yeah. 5 MR. NOMELLINI: And if we use 30 days we end up with 6 90,000 acre-feet? 7 MR. GUINEE: Again, that's a pretty close estimate. 8 C.O. CAFFREY: Not bad. 9 MR. NOMELLINI: Is it okay with you guys from UOP? 10 C.O. CAFFREY: Mr. Brown is double-checking, he'll 11 let you know. 12 C.O. STUBCHAER: Close enough. 13 MR. NOMELLINI: I'll just look over here on Table 2-7 14 for the Stanislaus River for May and what does it provide 15 for a critical year? 16 MR. GUINEE: Critical year is 23,000 acre-feet. 17 MR. NOMELLINI: Okay. And a dry year, what does it 18 provide? 19 MR. GUINEE: 33.9. 20 MR. NOMELLINI: And below normal year for May? 21 MR. GUINEE: 44.3. 22 MR. NOMELLINI: And above normal year for May, what 23 does it provide? 24 MR. GUINEE: 59.9. 25 MR. NOMELLINI: And, lastly, for a wet year in May CAPITOL REPORTERS (916) 923-5447 3320 1 for the Stanislaus River, what does it provide? 2 MR. GUINEE: 72.9. 3 MR. NOMELLINI: So you would agree, would you not, 4 that 90,000, which is the result of the 1500 cubic feet per 5 second, exceeds even the wet year objective that you feel 6 is necessary to mimic the natural hydrograph; is that true? 7 MR. GUINEE: Actually, I'd answer it this way: That 8 the Board's Draft EIR identifies flows to help the 9 Stanislaus contribution to meeting the Delta Water Quality 10 Control Plan. The flows in the Stanislaus are being 11 provided to help restore salmon and steelhead in the 12 Stanislaus. In addition, they would be compatible and 13 contribute to meeting the Water Quality Control Plan and 14 the salmon narrative goal. 15 MR. NOMELLINI: Would you agree that if we were to 16 attempt to mimic the natural hydrograph that the flow on 17 the Stanislaus, as represented by the 1500 cubic feet per 18 second, should be reduced? 19 MR. BIRMINGHAM: I'm going to object to the question 20 on the grounds it lacks foundation. I don't believe 21 there's been any testimony that this witness has reviewed 22 the hydrology of the Stanislaus River. And, therefore, I 23 don't think he can -- Mr. Nomellini has laid a foundation 24 that this witness has information to answer that question. 25 C.O. CAFFREY: Mr. Nomellini? CAPITOL REPORTERS (916) 923-5447 3321 1 MR. NOMELLINI: I don't understand the objection. I 2 thought we were talking about this very subject. If he 3 doesn't have the ability to answer it, that's fine. But 4 I'm trying to understand what they mean in their testimony 5 by "mimicking the natural hydrograph." 6 We've established so far the minimum flow on the 7 Stanislaus as represented by 15,000 cubic feet per second 8 exceeds by some substantial margin all of what we've 9 described here to be representative of the natural 10 hydrograph. So my question is simply: Whether or not it 11 would be necessary to lower that in order to mimic the 12 natural hydrograph? 13 Now, I don't expect that there would be a 14 complicated computation in order to do that. It's kind of 15 an opinion as to supporting what they're saying in terms of 16 this "mimic the natural hydrograph." 17 C.O. CAFFREY: Mr. Birmingham? 18 MR. BIRMINGHAM: I don't believe there's been any 19 testimony that the flows that are represented in Table 2-7, 20 or the flows that are contained in the Stanislaus 21 operations plan, interim operations plan mimic the natural 22 hydrograph. 23 MR. NOMELLINI: We can start with that one. 24 Mr. Guinee -- 25 C.O. CAFFREY: I think Mr. Birmingham makes a good CAPITOL REPORTERS (916) 923-5447 3322 1 point. You going to pick up -- 2 MR. NOMELLINI: Yeah. I'll take off in a different 3 direction. 4 C.O. CAFFREY: Thank you. 5 MR. NOMELLINI: And try to lay the foundation and go 6 back to that. 7 C.O. CAFFREY: All right. 8 MR. BIRMINGHAM: I take it Mr. Nomellini now 9 understands the objection? 10 MR. NOMELLINI: I don't know if I do or not, Tom, but 11 I'm going to try to approach it in a different way. What 12 would you do? 13 Mr. Guinee, in your testimony you made a reference 14 to Table 2-7, which I have up on the screen. Is that 15 correct? 16 MR. GUINEE: Yes, my testimony does refer to Table 17 2-7. 18 MR. NOMELLINI: Was your reference to the DEIR Table 19 2-7 that I have up on the screen intended to reflect what 20 you believed to be a representation of the flows that would 21 result from what is termed "the natural hydrograph"? 22 MR. GUINEE: I think if you go back to what Ms. Goude 23 said about the concept of the mimicking the natural 24 hydrograph was more the principle of looking at those 25 spring months and general proportions, not specific CAPITOL REPORTERS (916) 923-5447 3323 1 numbers. And as I mentioned earlier in my testimony, my 2 intent was to look more at the concept that comparing the 3 Mokelumne River MOU to what was in the Draft EIR, there was 4 a magnitude of difference in flows. 5 MR. NOMELLINI: All right. Staying on the Mokelumne 6 River, is it your opinion that the flows represented on 7 Table 2-7 reflect the natural hydrograph? 8 MR. GUINEE: Actually, as I mentioned in my 9 testimony, in general, in looking at the concept of 10 mimicking the natural hydrograph it comes pretty close. 11 But, you know, there are some questions when you look at 12 the natural hydrograph and compare it, the May flows are 13 higher than the June flows. And, yet, the Draft EIR has 14 identified higher flows in June. So it may not be, you 15 know -- there may be other information there that we'd have 16 to look at. 17 MR. NOMELLINI: In other words, you haven't verified 18 every number on Table 2-7; is that correct? 19 MR. GUINEE: That's correct. That's why I caution 20 not to focus on the numbers, but more on the concept of by 21 mimicking -- 22 MR. NOMELLINI: How about -- 23 MR. GUINEE: -- the natural hydrograph of the spring 24 flows. 25 MR. NOMELLINI: Excuse me. How about the concept as CAPITOL REPORTERS (916) 923-5447 3324 1 reflected on Table 2-7 in terms of representing the natural 2 hydrograph, do you agree that 2-7 is representative of that 3 concept? 4 MR. GUINEE: Again, of the alternatives in the Draft 5 EIR, it is -- comes closest to representing that concept. 6 I won't -- I haven't done enough analysis to say, you know, 7 whether it mimics it in every situation on every tributary. 8 MR. NOMELLINI: All right. Is there any reason to 9 believe that Table 2-7 is representative for the Mokelumne 10 but not representative for the Stanislaus? 11 MR. BRANDT: I'm going to object. He said he hasn't 12 done the analysis. So are you asking him to do the 13 analysis right now? 14 MR. NOMELLINI: No. I'm asking if he knows of any 15 reason why it wouldn't. 16 MR. GUINEE: I mean, conceptually, you can look at 17 the numbers and see that it's showing higher flows in the 18 spring than it is in the summer and fall. And so, 19 conceptually, without focusing in on the actual numbers, or 20 amount, yeah, it is consistent conceptually with mimicking 21 the natural hydrograph. 22 MR. NOMELLINI: Okay. Assuming that Table 2-7 is 23 conceptually representative of the natural hydrograph, and 24 further assuming that the magnitudes for May on the 25 Stanislaus as represented on Table 2-7 are reasonably CAPITOL REPORTERS (916) 923-5447 3325 1 reflective of the magnitude of flow for the Stanislaus 2 under the natural hydrograph, would you agree that 90,000 3 acre-feet is higher than what is reflected on Table 2-7 for 4 the Stanislaus River for all types of water years for May? 5 MR. GUINEE: What's obvious is that 90,000 acre-feet 6 is more than the numbers here in Table 7. But 90,000 7 acre-feet may, also, be mimicking the natural hydrograph. 8 Again, as I said earlier, don't focus on the amounts. 9 MR. NOMELLINI: All right. Could you explain that? 10 MR. GUINEE: Right. As a concept of mimicking the 11 natural hydrograph is taken in proportion, again, of 12 unimpaired inflow as Ms. Goude testified to. And so 90,000 13 acre-feet is a proportion of the unimpaired inflow as well. 14 C.O. CAFFREY: Mr. Nomellini, I know you're in the 15 middle of deep thought, but I was just curious as to -- 16 marymary 17 MEMBER FORSTER: Are you hungry? 18 MR. NOMELLINI: Maybe food would help me through 19 this. 20 C.O. CAFFREY: Yeah, you've completed a little more 21 than an hour. And I don't know, how much more time do you 22 think you'll need? 23 MR. NOMELLINI: I probably have another 20 minutes, 24 or 30 minutes. 25 C.O. CAFFREY: All right. Let's do that when we come CAPITOL REPORTERS (916) 923-5447 3326 1 back from lunch at 1:15. 1:15, thank you. 2 (Luncheon recess.) 3 ---oOo--- 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 3327 1 TUESDAY, SEPTEMBER 15, 1998, 1:19 P.M. 2 SACRAMENTO, CALIFORNIA 3 ---oOo--- 4 C.O. CAFFREY: All right. We are back on the record. 5 And Mr. Suyeyasu asked to be recognized. Good afternoon, 6 Mr. Suyeyasu. 7 MR. SUYEYASU: Good afternoon, Mr. Caffrey. A number 8 of people asked me at lunch whether or not EDF would be 9 still be putting on a case in chief in Phase IV, and we 10 will not. So everybody should be pleased to hear that. 11 C.O. CAFFREY: Not necessarily. 12 MR. SUYEYASU: For concerns of time, they will be 13 pleased. 14 C.O. CAFFREY: Thank you for informing us of that, 15 Mr. Suyeyasu, we appreciate it. And, Ms. Goldsmith. 16 MS. GOLDSMITH: Yes, as long as we have a small 17 housekeeping detour here, I'd like to ask whether or not 18 for the convenience of my witness and because these Phase 19 IV hearings have sort of gone to unpredictable lengths, I 20 could put my West Sacramento witness on tomorrow morning 21 first thing? 22 Mr. Brandt has agreed and so has Mr. Sandino, and 23 they were the only two who had mentioned that they might 24 want to cross-examine. I can't imagine it would take more 25 than 15 minutes, max. CAPITOL REPORTERS (916) 923-5447 3328 1 C.O. CAFFREY: Let me ask in fairness to all, is 2 there anybody that objects to taking a little time-out, if 3 we're not done with Mr. Brandt's case, taking a time-out 4 tomorrow morning for Ms. Goldsmith to present the West 5 Sacramento case in chief? 6 I don't see any objection at the moment, so we'll 7 proceed along those lines. My records do show that that is 8 the only remaining case in chief in this phase with -- 9 after Mr. Suyeyasu's announcement a few moments ago. So it 10 would be just West Sac remaining, then. Have I missed 11 anybody? All right. We'll proceed along those lines. And 12 I have no idea how long this is going to take us, but we 13 have a number of people, yet, to go in this 14 cross-examination so we may have to take that break 15 tomorrow to accommodate you rather than having had finished 16 this. 17 MS. GOLDSMITH: You're such an optimistic. 18 C.O. CAFFREY: Really. 19 MS. GOLDSMITH: Thank you very much. 20 C.O. CAFFREY: All right, Ms. Goldsmith. All right, 21 Mr. Nomellini, sir. 22 MR. NOMELLINI: Could we get that screen and the 23 overhead? 24 C.O. CAFFREY: Yes. Let's see, you said you needed 25 another 20 minutes to a half hour? CAPITOL REPORTERS (916) 923-5447 3329 1 MR. NOMELLINI: If I get the simple direct answer to 2 each of my questions it would end in 20 minutes, I'm sure. 3 C.O. STUBCHAER: If you would ask simple questions. 4 MR. BRANDT: Thank you, Mr. Stubchaer. 5 MR. NOMELLINI: I thought they were simple questions. 6 C.O. CAFFREY: All right. Please, proceed. 7 MR. NOMELLINI: All right. I believe we were dealing 8 with the question of whether or not Table 2-7 reflected the 9 natural hydrograph. And is it correct, Mr. Guinee, that 10 not having checked each and every number that Table 2-7 is 11 generally representative, in your opinion, of the natural 12 hydrograph? 13 MR. GUINEE: I'll say it this way, Mr. Nomellini, 14 that Table 2-7 as far as the alternatives in the Board's 15 Draft EIR does the best job of reflecting the mimicking of 16 the natural hydrograph. 17 MR. NOMELLINI: All right. In your testimony at page 18 1 you used the term "ecological fair share." Is that 19 correct? 20 MR. GUINEE: Are you asking me, or Ms. Goude? 21 MR. NOMELLINI: You. 22 MR. GUINEE: Okay. Could you -- 23 MR. NOMELLINI: Yeah. On page 1 of your testimony 24 you make a reference in paragraph two, do you not, to the 25 phrase "ecological fair share"? CAPITOL REPORTERS (916) 923-5447 3330 1 MR. GUINEE: Yes, I do. 2 MR. NOMELLINI: And is the term "ecological fair 3 share" in any way related to the proportion of flow in each 4 tributary which would mimic the natural hydrograph? 5 MR. GUINEE: I think what it does is it goes back to 6 that concept of, yes, it is related to mimicking the 7 natural hydrograph. 8 MR. NOMELLINI: And you point out in your testimony 9 at page 1, do you not, that alternative five provides, 10 "One, albeit, flawed way of defining the ecological fair 11 share"? 12 MR. GUINEE: Right. I guess referring to the 13 specific numbers, but in terms of the concept the idea of 14 all the tributaries contributing to meet the Delta Water 15 Quality Control Plan is consistent with ecological fair 16 share. 17 MR. NOMELLINI: All right. Referring to the footnote 18 on page 1 of your testimony, which I read, what are the 19 flaws in alternative five that you're referring to in that 20 footnote? 21 MR. GUINEE: I think as an example if you look at the 22 Board's Draft EIR, chapter five, page 2, the Board's 23 document actually discusses that the modeling here based on 24 the seven-year period of record may not reflect the actual 25 operations, or releases from those reservoirs. And so it CAPITOL REPORTERS (916) 923-5447 3331 1 may not accurately represent the way it would actually be 2 implemented. 3 MR. NOMELLINI: So the flaw does not exist in terms 4 of the general representation of the natural hydrograph, 5 but rather in the operational aspects as reflected on Table 6 2-7, is that your testimony? 7 MR. GUINEE: No, I didn't say that. 8 MR. NOMELLINI: Okay. Is the -- can you give me -- 9 Strike that. 10 Can you give me an example of an operational flaw 11 that exists in alternative five in the Draft EIR that 12 you're referring to in this footnote? 13 MR. GUINEE: I just gave you an example. Would you 14 like another one? 15 MR. NOMELLINI: Yeah. Can you relate it to a 16 particular river? 17 MR. GUINEE: No. Actually, rather than relate it to 18 a specific river, I think when we looked at the alternative 19 five it seemed to indicate that the flows identified here 20 in the Draft EIR when released may actually exceed the 21 Water Quality Control Plan flow objectives. And so the 22 Board was acknowledging that it wouldn't necessarily be 23 implemented in that way that the actual operations may 24 vary. 25 MR. NOMELLINI: Okay. Going to Table 2-7 and CAPITOL REPORTERS (916) 923-5447 3332 1 accepting that that table provides a basis for an 2 ecological fair share, if we compared the Mokelumne River 3 to the Stanislaus for the month of May, for example, is it 4 not true that in a critical year the flow from the 5 Mokelumne would be greater in May than it would be for the 6 Stanislaus in a critical year in May? 7 MR. GUINEE: To answer that by saying if you look 8 just at the numbers in the table, that is correct. Doesn't 9 necessarily mean that that's the way it would be 10 implemented. 11 MR. NOMELLINI: But it would be, in your opinion, a 12 proper basis for ecological fair share, would it not? 13 MR. GUINEE: Right. Again, as Ms. Goude and I both 14 have said, that conceptually starts with the approach of an 15 ecological share of mimicking the natural hydrograph. 16 MR. NOMELLINI: So if we assume for the Stanislaus 17 River in a critical year in May, we would have 90,000 18 acre-feet for that month. And that equates to 23 on the 19 table. When we go to the Mokelumne and we have 30 it would 20 be far greater than 90,000 acre-feet that would be the 21 ecological fair share from the Mokelumne, would it not? 22 MR. BIRMINGHAM: Objection. Ambiguous. 23 C.O. CAFFREY: Do you understand the question, sir? 24 MR. GUINEE: No. I was going to ask him to clarify 25 it. CAPITOL REPORTERS (916) 923-5447 3333 1 C.O. CAFFREY: Could you try, again, Mr. Nomellini? 2 MR. NOMELLINI: I thought it was perfectly clear. 3 Nope, very confusing. All right. In terms of the 4 ecological fair share concept, are the proportions that are 5 reflected in Table 2-7 relevant to that equitable fair 6 share? 7 MR. BIRMINGHAM: Objection. Lacks foundation. There 8 is no evidence in the record as to what proportion these 9 flows bear to the natural hydrograph. For instance, you 10 can look at Mr. Guinee's Exhibit 9B, which shows the 11 natural hydrograph for the Mokelumne River. And then 12 compare it to the flows in the table. There is no similar 13 evidence with respect to the natural hydrograph of the 14 Stanislaus River. 15 C.O. CAFFREY: Hang on. 16 MR. BRANDT: And I -- 17 C.O. CAFFREY: Would you like to start over, sir? 18 MR. BRANDT: No. 19 MEMBER DEL PIERO: Mr. Birmingham makes an excellent 20 point. 21 MR. BRANDT: My objection was going to be vague as to 22 what proportion? Proportion of what to what? 23 C.O. CAFFREY: Try again, Mr. Nomellini. 24 MR. NOMELLINI: Yeah. I'm not talking about 25 hydrology or unimpaired flow. I'm talking only about your CAPITOL REPORTERS (916) 923-5447 3334 1 definition of equitable fair share, Mr. Guinee. 2 You testified that Table 2-7 reasonably reflects 3 the basis for your concept of equitable fair share; is that 4 correct? 5 MR. GUINEE: Right. I said that Table 2-7 in terms 6 of the Board's Draft EIR was the closest alternative to 7 that approach of mimicking the natural hydrograph. 8 MR. NOMELLINI: And, therefore, is it not true that 9 it reasonably reflects your opinion of ecological fair 10 share? 11 MR. GUINEE: Well, I'll take you back. Again, in 12 terms of the concept, yes. But in terms of the numbers as 13 I've said repeatedly, I did not focus in on the specific 14 numbers. 15 MR. NOMELLINI: Okay. 16 MR. GUINEE: I was looking at the concept. 17 MR. NOMELLINI: Okay. Without focusing in on the 18 specific numbers, are the general proportions among the 19 listed rivers, in your opinion, reasonably reflective of 20 your concept of equitable fair share? And I'm referring to 21 Table 2-7. 22 MR. GUINEE: I didn't do that detailed of analysis 23 except for on the Mokelumne and Yuba Rivers, which I 24 presented in my testimony. 25 MR. NOMELLINI: Okay. If we had an accurate CAPITOL REPORTERS (916) 923-5447 3335 1 reflection of the data to show us what the unimpaired flow 2 would have been on pre-project on each of these rivers, 3 would that be the data upon which you would rely for 4 determining the equitable fair share? 5 MR. GUINEE: That would be one piece of the 6 information. There would be a whole lot of other factors 7 that would be considered. 8 MR. NOMELLINI: Okay. What other factors would you 9 consider? 10 MR. GUINEE: I guess as we've talked about before, in 11 the streams themselves we would be considering the life 12 stages and life histories of the fish and aquatic resources 13 that use the stream. And, then, in terms of natural 14 hydrograph we looked at the inflow and storage and 15 relationships in the stream as well as how the releases 16 contribute to meeting, you know, Delta water quality and 17 flow objectives. And let me add, the narrative salmon 18 objective. 19 MR. NOMELLINI: Is it your testimony that -- well, 20 strike that. 21 How does your concept of equitable fair share 22 relate to the statement in the testimony of Cay Goude in 23 paragraph four that reads: 24 (Reading): 25 "Until roughly proportional inflows are CAPITOL REPORTERS (916) 923-5447 3336 1 restored, recovery of the Bay-Delta ecosystem 2 will be problematic"? 3 MR. GUINEE: My testimony and Ms. Goude's testimony 4 are consistent. 5 MR. NOMELLINI: So the equitable fair share should be 6 proportional to restored inflows; is that correct? 7 MR. BRANDT: Objection. Vague, "restored inflows." 8 MR. NOMELLINI: Well, that's a term -- can I argue 9 against? That's the term that's used in the testimony of 10 Cay Goude. It's not defined and it says "inflows are 11 restored." I was going to ask next: Restored to what? 12 Because maybe I'm missing it. 13 C.O. CAFFREY: Go ahead with the question. You can 14 answer it. 15 MR. GUINEE: What I said was ecological fair share 16 approach not equitable. But in terms of comparison to 17 Ms. Goude's testimony, if you recall the overhead that I 18 put up on the Mokelumne, if you look at the natural 19 hydrograph for the Mokelumne you see the shape that that 20 has. The general concept is that you mimic that shape, or 21 that approach to providing releases, flows into the Delta 22 particularly during the spring. 23 MR. NOMELLINI: So that for the Mokelumne, then, if 24 pre-project flows were high in May, they should be high in 25 any solution that we're talking about today, is that what CAPITOL REPORTERS (916) 923-5447 3337 1 you're saying? 2 MR. GUINEE: Correct. If the unimpaired flow in May 3 is high, then the higher flows in May will mimic the 4 natural hydrograph. 5 MS. GOUDE: But I would like to add that biologically 6 speaking that the situations in the systems have changed. 7 And you'd have to look at the biology and the various 8 aquatic resources that are in that system today and 9 operational constraints and make those modifications. So 10 you'd overlay the actual practical issues of the system as 11 well as the biology of those systems. 12 MR. NOMELLINI: Ms. Goude, then, is it still correct 13 that you would testify that the proportion would be based 14 on unimpaired Delta inflow from each tributary and would 15 mimic the natural hydrograph? 16 MS. GOUDE: That's true, but you don't forget 17 practical constraints, or the biology of the species that 18 you're looking at. 19 MR. NOMELLINI: All right. So you would say, then, 20 your testimony on page 1 should be modified by pointing out 21 that you would mimic the natural hydrograph, but you would 22 take into consideration the present condition of the 23 species of concern and the biological concerns of today's 24 situation? 25 MS. GOUDE: Actually, I don't think my testimony CAPITOL REPORTERS (916) 923-5447 3338 1 needs to be modified. It goes on to talk about the 2 recovery in the plan and the critical habitat which 3 describes that. It talks about the actual biology of the 4 species. 5 MR. NOMELLINI: All right. In the concept of 6 ecological fair share, are the proportions among the 7 various tributaries, in terms of unimpaired flow, of any 8 importance in that concept? 9 MS. GOUDE: Well, I don't get -- 10 MR. NOMELLINI: Mr. Guinee? 11 MS. GOUDE: Well, I don't get the question. Do you? 12 MR. GUINEE: I think what we testified to is the 13 concept itself is important. We haven't done the analysis 14 of what the proportion of the flow should be for each 15 tributary. 16 MR. NOMELLINI: All right. Let me give you a 17 hypothetical. If under unimpaired flow conditions the 18 Stanislaus River in May had half the flow that the 19 Mokelumne River had in the same particular months, is it of 20 any importance that -- to the ecological fair share concept 21 that the Mokelumne would have twice as much flow as the 22 Stanislaus in that particular month for that hypothetical? 23 MR. GUINEE: Could you narrow it down more specific. 24 I kind of got lost trying to follow your hypothetical. 25 MR. NOMELLINI: All right. The hypothetical is that CAPITOL REPORTERS (916) 923-5447 3339 1 the flow in May on the Mokelumne River is twice as much as 2 the flow in May on the Stanislaus River for the unimpaired 3 flow condition. 4 MR. GUINEE: I guess the response to that is that's 5 probably not true, but -- 6 MR. NOMELLINI: Well, if it were true would that 7 proportion be of any importance to you in this equitable 8 fair share allocation? 9 MR. BRANDT: Objection. "That proportion," vague. 10 MR. NOMELLINI: Well, it's two to one. 11 MR. BRANDT: But that proportion, the proportion of 12 the Stanislaus to the Mokelumne, is that the one you're 13 talking about? 14 MR. NOMELLINI: Yes. 15 C.O. STUBCHAER: Actually, it's reversed. 16 MR. NOMELLINI: Yeah, they're reversed. 17 MR. GUINEE: So the question you're asking gets to 18 the earlier response that we haven't done that detailed of 19 an analysis on the proportions of flows needed from each 20 tributary. 21 MR. NOMELLINI: Okay. Is it fair to state that the 22 proportion is not important to your equitable fair share? 23 MS. GOUDE: I'd like to answer that. What we had 24 talked about in my testimony has been that each and every 25 tributary, or where it's providing contributions and what I CAPITOL REPORTERS (916) 923-5447 3340 1 had earlier stated is that as you start to eliminate 2 tributaries those proportions become more important. So 3 maybe one tributary is only contributing a small 4 percentage, but as you continue to cut off different 5 portions it reduces your flexibility for fish and wildlife. 6 MR. NOMELLINI: So the proportion in terms of the 7 ratio of flows of one tributary to another is not 8 important, is that your testimony? 9 MS. GOUDE: I didn't say that. I said that the 10 contribution from various tributaries is something to be 11 looked at. And to eliminate certain creeks or certain 12 streams, because it's 3 percent versus 2 percent at this 13 time is premature. 14 MR. GUINEE: It may be important, Mr. Nomellini. 15 MR. NOMELLINI: All right. It may be important in 16 terms of proportion. All right. As we go through this 17 equitable fair share and in comparison to your testimony, 18 Ms. Goude, the word "proportion" in paragraph four on page 19 1 is not intended to constitute a ratio of flow from one 20 river to another, is that -- is that a fair statement of 21 your testimony? 22 MS. GOUDE: The proportion was based on each 23 tributary and looking at the -- at those systems to meet 24 the State Board Water Quality Control Plan. 25 MR. NOMELLINI: Okay. And -- CAPITOL REPORTERS (916) 923-5447 3341 1 MS. GOUDE: I don't really understand what you're 2 getting at further than that. 3 MR. NOMELLINI: Okay. Putting aside the 2 or 3 4 percent types of river systems, the Chowchilla, the 5 Orestimba Creek and what have you, putting those aside. 6 Thinking in terms of the larger river systems that are 7 tributary to the Delta, if we had under unimpaired flow 8 twice as much flow coming down the Mokelumne in a given 9 month than we had coming down the Stanislaus in that same 10 month, is that proportion of any importance in your 11 statement that said we should mimic the natural hydrograph? 12 MS. GOUDE: Well, I guess if you were a fish in 13 Stanislaus versus the Mokelumne it makes a difference what 14 the habitat is as well as where other fish within the Delta 15 system are. So I don't really understand -- 16 MR. NOMELLINI: All right. Are you asking in your 17 testimony that the Board look at unimpaired flow of all of 18 these various tributaries and establish a flow 19 responsibility based on the proportionate contribution of 20 unimpaired flow? 21 MS. GOUDE: Repeat that. 22 MR. NOMELLINI: This is a test. Can I have it read 23 back, please? 24 MS. GOUDE: I'm actually not sure reading back that 25 question will help me. CAPITOL REPORTERS (916) 923-5447 3342 1 MR. BRANDT: Let's try it. 2 MS. GOUDE: We'll try it. 3 MR. NOMELLINI: That's what you asked me to do. 4 C.O. CAFFREY: Can you read it back, Mary. 5 THE COURT REPORTER: Uh-huh. 6 (Whereupon the question was readback by the Reporter.) 7 MS. GOUDE: What I have been talking about is on the 8 biological aspects of restoration and recovery for 9 specifically Delta smelt and Sacramento splittail and other 10 native fishes, the need to have a proportional inflow that 11 mimics the natural hydrograph. How you go about dealing 12 with that, or dealing with it as far as implementation, 13 would be up to the Board. 14 MR. GUINEE: I would agree. And what I said in my 15 testimony is that it's important that the Board consider 16 improved flows in the Mokelumne and the Yuba are consistent 17 with the Draft EIR's alternative five in order to meet 18 water quality as well as the narrative salmon objective. 19 C.O. STUBCHAER: Mr. Chairman? 20 C.O. CAFFREY: Mr. Stubchaer. 21 C.O. STUBCHAER: Mr. Nomellini, I would like to ask a 22 question. 23 MR. NOMELLINI: I'd gladly step back. 24 C.O. STUBCHAER: This question, which has been very 25 clear to me, has been asked but not answered about five CAPITOL REPORTERS (916) 923-5447 3343 1 times. And I'd like to know: What is the definition of 2 "roughly proportional inflows," in paragraph four of your 3 testimony, Ms. Goude. 4 MS. GOUDE: I guess I'll give you what I view it as. 5 If you would view it as, "I am not a hydrologist." And I 6 look at it as that what you would look at the hydrograph 7 and you would look at it, multiple year types and 8 operational constraints. And you would develop a 9 percentage, or a proportional hydrograph that mimics it. 10 And that's similar to what you did in alternative five of 11 the analysis. 12 C.O. STUBCHAER: A proportional hydrograph for each 13 tributary stream? 14 MS. GOUDE: Each tributary stream. 15 C.O. STUBCHAER: Using the same percentage, 16 proportion being the percentage of unimpaired flow to the 17 total unimpaired flow? 18 MS. GOUDE: I don't know if you would use the same 19 percentage throughout the entire system. I don't know 20 that. I think you would have to look at the operational 21 constraints and the physical constraints of that system. 22 And there are certain constraints where the percentage 23 would change based on just the configuration and the 24 alteration of the stream channels. They just aren't the 25 way they were 20, 30 years ago. CAPITOL REPORTERS (916) 923-5447 3344 1 C.O. STUBCHAER: What would you use as a beginning 2 point for coming up with a proportional inflow? 3 MS. GOUDE: You mean what would I use for the base 4 condition for unimpaired? 5 C.O. STUBCHAER: You have to make a first try at 6 proportioning the flows among the tributaries. 7 MS. GOUDE: Correct. I would think that some of the 8 information that you have in alternative five would be the 9 baseline that you have an analysis that you could build on 10 and look at that and -- and correct if there is any issues 11 in flaws, or information. 12 A lot of the problems, or the way it is difficult 13 for biologists to interpret it, is those are monthly 14 averages. And you have various water year types. And, you 15 know, multiple back-to-back droughts can affect how you 16 would deal with those situations and you need to look at 17 the analysis in more detail. 18 MEMBER BROWN: But wouldn't that be consistent -- 19 C.O. STUBCHAER: Go ahead. 20 C.O. CAFFREY: Mr. Brown, do you have a question? 21 MEMBER BROWN: But would that not be consistent for 22 all the streams? 23 MS. GOUDE: Pardon me? 24 MEMBER BROWN: Would those not be a growing 25 consistent for all the streams and your proportionality CAPITOL REPORTERS (916) 923-5447 3345 1 would prevail? 2 MS. GOUDE: They might be. I really -- you know, 3 haven't looked at all the streams. And I hate to say that 4 that would be the same percentage or persistency throughout 5 the whole streams, because as I'm sure as I say that, 6 there's some exception to that rule. 7 MEMBER BROWN: Thank you. 8 C.O. STUBCHAER: Excuse the interruption, 9 Mr. Nomellini. 10 MR. NOMELLINI: No, I appreciate it. In fact, I'd 11 give you the rest of my time. 12 C.O. CAFFREY: I was just going to say, 13 Mr. Stubchaer, of course, is an engineer, just think if he 14 was a lawyer. 15 MS. GOUDE: I understand the engineers better. 16 MR. NOMELLINI: I'd like to put up another part of 17 Table 2-7. What I'd like to do is show the San Joaquin 18 River and the Stanislaus. Okay. All right. I'm 19 representing to you that that bottom part of Table 2-7 is a 20 copy of a portion of Table 2-7 out of the DEIS. And I'd 21 like to call your attention to the San Joaquin River and to 22 the Stanislaus River as shown on that table. 23 Now, recognizing that a perfect proportionate 24 sharing of responsibility may not make sense for biological 25 purposes, is the information on Table 2-7 reflective of the CAPITOL REPORTERS (916) 923-5447 3346 1 need for some inflow from the San Joaquin River as a part 2 of the mimicking of the natural hydrograph in your opinion, 3 Ms. Goude? 4 MS. GOUDE: Biologically speaking that if you could 5 have a contribution from all the tributaries, including the 6 San Joaquin, that would be of benefit. However, on the San 7 Joaquin, as I understand it, there is problems with getting 8 water through gravelly ford. 9 MR. NOMELLINI: What is your understanding of getting 10 water through gravelly ford? 11 MS. GOUDE: It goes underground. It doesn't surface. 12 MR. NOMELLINI: Are you aware of the fact that this 13 winter water did move all the way down the San Joaquin 14 through gravelly ford into the main stem? 15 MS. GOUDE: Yeah, I'm not disputing that it doesn't 16 do that in a certain year type. 17 MR. NOMELLINI: And do you know how much water is 18 lost underground? 19 MS. GOUDE: No, I do not. 20 MR. NOMELLINI: Mr. Guinee, do you have any opinion 21 as to quantities? 22 MR. GUINEE: I haven't done that evaluation. 23 MR. NOMELLINI: Do you have any opinion as to the 24 relative quantities that would be involved? 25 MR. GUINEE: No, I don't have an opinion as to the CAPITOL REPORTERS (916) 923-5447 3347 1 relative quantities. 2 MR. NOMELLINI: All right. If we had an equitable 3 fair share from all the tributaries that mimic the natural 4 hydrograph subject to these biological constraints, in your 5 opinion would the required flow from the Stanislaus River 6 go up or go down, Mr. Guinee? 7 MR. GUINEE: Could you repeat the hypothetical again. 8 If -- 9 MR. NOMELLINI: Could you read it back, please. 10 (Whereupon the question was readback by the Reporter.) 11 MR. GUINEE: Okay. Again, what I testified to was an 12 ecological fair share approach. And I also said that I did 13 not do an analysis to evaluate what the proportion should 14 be in each tributary. So I haven't done the evaluation to 15 know whether it would go up or go down. 16 MR. NOMELLINI: Okay. Without a careful evaluation, 17 isn't it true that we looked at May of a critical year on 18 the Mokelumne and we had 15 cubic feet per second? 19 MR. GUINEE: That's correct, if you look at the MOU 20 proposed flows. 21 MR. NOMELLINI: And in May on the Stanislaus, would 22 you not agree, that we're talking about a number closer to 23 1500 cubic feet per second? 24 MR. GUINEE: That's correct, at least, for two weeks 25 in May. CAPITOL REPORTERS (916) 923-5447 3348 1 MR. NOMELLINI: Doesn't that give you kind of a rough 2 parameter that an ecological fair share would result in 3 some change in that proportion? 4 MR. GUINEE: There's definitely a magnitude of 5 difference. But when you look at the whole system, as 6 Ms. Goude said, and evaluated each trib and then looked at 7 it collectively, what you may decide to do is improve the 8 flows in the Mokelumne as I suggested in my testimony. 9 MR. NOMELLINI: Okay. With regard to the 1995 Water 10 Quality Control Plan fishery flows at Vernalis, are those 11 flows, in your opinion, necessary for the outmigration of 12 San Joaquin River salmon smolt, Mr. Guinee? 13 MR. GUINEE: I haven't really done an analysis as to 14 whether they're necessary. 15 MR. NOMELLINI: You do understand, do you not, that 16 that flow in the 1995 Water Quality Control Plan is 17 sometimes referred to as a "pulse flow"? 18 MR. GUINEE: Correct. You're speaking specifically 19 of the April 15th to May 15th period? 20 MR. NOMELLINI: Correct. 21 MR. GUINEE: I've heard it referred to as the pulse 22 flow. 23 MS. GOUDE: I should add that it's also in the OCAP 24 opinion as part of their biological opinion for Delta 25 smelt. CAPITOL REPORTERS (916) 923-5447 3349 1 MR. NOMELLINI: Okay, I was going to ask that next. 2 We don't know, at least this panel doesn't know, whether or 3 not that's beneficial to the outmigration of San Joaquin 4 River smolt; is that correct? 5 MR. GUINEE: Actually, you didn't ask me if it was 6 beneficial. You asked me if it was necessary. 7 MR. NOMELLINI: Okay. Let's segregate that. You 8 don't know if it's necessary; is that correct? 9 MR. GUINEE: What I said is I didn't do an analysis 10 to show whether that was the minimum flow necessary. 11 MR. NOMELLINI: All right. Do you have any opinion 12 as to whether or not the pulse flow included in the 1995 13 Water Quality Control Plan for Vernalis is necessary? 14 Recognizing that you didn't do the analysis, I want to know 15 your opinion, is it necessary for the outmigration of San 16 Joaquin River salmon smolt, if you have an opinion? 17 MR. GUINEE: I could see where those flows would be 18 beneficial to downstream migrating salmon. And I think 19 there's also flows identified in the February through June 20 period as well. So it's those salmon, as I said earlier, 21 migrate over a broader period than just the 30 days, but in 22 that 30-day period there would be some benefits, 23 definitely. 24 MR. NOMELLINI: Do you have any opinion as to whether 25 or not the magnitude of those flows, rather than the period CAPITOL REPORTERS (916) 923-5447 3350 1 of those flows, is necessary for the outmigration of San 2 Joaquin salmon smolt? 3 MR. BRANDT: I think I'm going to object at this 4 point. This is getting to the point of are we fighting 5 over the standards and trying to figure out whether the 6 standards are appropriate and necessary? 7 This is -- this is beyond what I was talking about 8 this morning. This is not even a part of this hearing. 9 This is about trying to review that would happen, perhaps, 10 at some other time. 11 C.O. CAFFREY: Mr. Nomellini, you have an 12 explanation? 13 MR. NOMELLINI: Yeah. The proportional inflows 14 restoration thing, I think it still establishes that has 15 some relevance in the testimony here. They want somebody 16 else to do the balancing of all this. 17 But my concern is to understand what the 18 differences are between, for example, the fish in the 19 Mokelumne and the fish in the San Joaquin, if there are any 20 differences. So I wanted to understand what that pulse 21 flow did on the San Joaquin, because I asked about pulse 22 flows on the Mokelumne, and I got a flat line. You know, 23 that's not what we're talking about, this pulse flow. 24 So I was trying to get on the record what this 25 pulse flow is over on this other side. And, then, how it CAPITOL REPORTERS (916) 923-5447 3351 1 fits this testimony that we should fashion something with 2 proportional inflows. And I think we're talking about the 3 same fish, salmon and smelt. And I was going to try to get 4 to that in this process. And so that's where I see the 5 relevance. If it's too far afield -- 6 C.O. CAFFREY: Just a moment. 7 MR. NOMELLINI: -- I'll leave it alone. 8 C.O. CAFFREY: We're going to allow the question. Go 9 ahead. 10 MR. NOMELLINI: Do you remember it? 11 MR. GUINEE: Could you repeat it, again, please? 12 MR. NOMELLINI: I'll have the Reporter read it back, 13 please. 14 C.O. CAFFREY: Go ahead, Mary. 15 (Whereupon the question was readback by the Reporter.) 16 MR. GUINEE: I think that question would be better 17 answered by our panel of experts that we provided on the 18 San Joaquin system. 19 MR. NOMELLINI: Assuming that's true, do you have any 20 opinion, even though it might not be very weighty, as to 21 the importance of the magnitude of those flows to the 22 outmigration of San Joaquin salmon smolt? 23 MR. GUINEE: As we heard testimony from them and I've 24 learned myself, that the flows in the San Joaquin are 25 beneficial particularly in the springtime to downstream CAPITOL REPORTERS (916) 923-5447 3352 1 migrating salmon. 2 MS. GOUDE: I would like to add that you need to look 3 at the various water year types, the operations of the head 4 of Old River, the operations of what the export ratio is as 5 well as the inflow for the pulse flow. So you -- also you, 6 actually, have to pay attention to when the San Joaquin 7 salmon are outmigrating, because they can vary within a 8 week or two. 9 MR. NOMELLINI: So if we wanted to make a more 10 reasonable use of a pulse flow for the benefit of 11 outmigration of salmon smolts we should determine when the 12 salmon smolts are migrating out of the San Joaquin River, 13 would we not? 14 MS. GOUDE: There's been a number of studies that 15 have identified, as I understand it, a pretty good close 16 window of when they are. But, also, if you simply go by 17 monitoring and you deal with your pulse you could miss the 18 outmigration period. So you have to base it on historic 19 information. 20 MR. NOMELLINI: And you think a 30-day period between 21 April 15th and May 15th is the period? 22 MS. GOUDE: What they have looked at is that -- that 23 there are -- you collect, or you get a large percentage of 24 the salmon through that period of time from the San 25 Joaquin. You don't collect -- you know, basically there is CAPITOL REPORTERS (916) 923-5447 3353 1 a percentage on either end of that window that you miss, 2 but you would have your biggest bang for the salmon buck 3 through that period of time. 4 MR. NOMELLINI: Do you agree that the correlation 5 between flow at Vernalis and San Joaquin River salmon smolt 6 survival does not exist, Cay Goude? 7 MS. GOUDE: There's been a number of studies that are 8 still ongoing that are dealing with that. And I have not 9 been the primary participant, only in paying attention as 10 it relates. And there seems to be some issues that the -- 11 with flow during certain year types depending on operations 12 that the farther -- the better the flow and the reduced 13 export the better the fish are in getting out through -- 14 into the ocean, increased survivorship. 15 MR. NOMELLINI: All right. 16 MS. GOUDE: Which is a very gross generalization of 17 many years of studies. 18 MR. NOMELLINI: I hate to repeat my question, but: 19 Do I understand your testimony to be that there is no 20 correlation between flow in the San Joaquin River at 21 Vernalis and San Joaquin River salmon smolt survival? 22 MS. GOUDE: I guess I didn't answer very well. I 23 thought that I was saying that I -- my understanding that 24 there is some correlation in certain water year types and 25 certain studies at certain points. But it -- you know, how CAPITOL REPORTERS (916) 923-5447 3354 1 strong the correlation depends and -- on a lot of different 2 variables within the system. And it's very hard, because 3 they're doing recapture studies. So they're trying to 4 release fish at one point and trying to capture them 5 someplace else. And I am not the person from the Service 6 that's been doing those studies. 7 MR. NOMELLINI: That's fair enough. And, Mr. Guinee, 8 I saw you nodding. I gather your answer would be 9 consistent with Ms. Goude? 10 MR. GUINEE: Right. I agree with Ms. Goude there is 11 a relation with the flow and the salmon survival. And I'd 12 refer you to the testimony of Pat Brandes and Marty Kjelson 13 and Fish and Wildlife Service, previous Fish and Wildlife 14 Service witnesses 15 MR. NOMELLINI: All right. With regard to Delta 16 smelt and the, what I'm going to call the, "pulse flow," 17 included in the 1995 Water Quality Control Plan for 18 Vernalis, Ms. Goude, how does that -- is that flow -- or is 19 that flow, pulse flow, important to Delta smelt? 20 MS. GOUDE: It has -- it was included as part of the 21 biological opinion in OCAP. It had always been a portion 22 of the opinion even prior to this -- the water rights 23 decision. And it provides an additional transport of Delta 24 smelt into appropriate habitat as well as providing some 25 habitat. CAPITOL REPORTERS (916) 923-5447 3355 1 MR. NOMELLINI: All right. Does it make any 2 difference as to whether or not the Delta smelt are in the 3 Central Delta at the time of the pulse flow as to whether 4 or not Delta smelt are benefited by the pulse flow? 5 MS. GOUDE: There usually are Delta smelt within the 6 Central Delta during those months. 7 MR. NOMELLINI: All right. And if the Delta smelt 8 were present outside of those months, is it important to 9 have a flow to transport Delta smelt? 10 MS. GOUDE: There -- they're resident fish throughout 11 the system. And there's other parameters and actions 12 within the OCAP opinion to try and have the fish moved into 13 the system and into the Suisun Marsh and Suisun Bay, which 14 includes the X2 provision. So there's other factors that 15 are trying to deal with the same objective. 16 MR. NOMELLINI: All right. And they would take care 17 of the problem without there being a pulse flow, is that 18 what your testimony is? 19 MS. GOUDE: No. I said there's additional factors 20 other than just the pulse flow. X2 is part of the -- 21 maintaining flows from both the San Joaquin and the 22 Sacramento to meet the X2 at three different measuring 23 points at Roe, at the confluence and at Chipps Island. 24 MR. NOMELLINI: Okay. So the contribution from the 25 San Joaquin side of the Delta is important to the location CAPITOL REPORTERS (916) 923-5447 3356 1 of X2, is that -- is that correct? 2 MS. GOUDE: I'm not so much sure if it's a hydrologic 3 issue, but it is basically the way that we have looked at 4 even critical habitat in that there would be a contribution 5 from both systems, both the San Joaquin and the Sacramento 6 biologically that would provide those benefits for the 7 smelt. 8 MR. NOMELLINI: Okay. In terms of Delta smelt 9 present in the Central Delta, is there a period other than 10 the April 15th through May 15th period that is of import in 11 terms of transporting Delta smelt? 12 MS. GOUDE: Roughly, it depends on what life stage 13 and what water year type, but February through June are 14 probably important. But there are certain critically dry 15 years that Delta smelt could be within the system in like 16 July and August and kind of make things difficult. 17 MR. NOMELLINI: All right. If we were to seek to 18 protect Delta smelt, should we consider adjusting the pulse 19 flow from the roughly April 15th to May 15th period to some 20 other period that corresponds with the presence of large 21 populations of Delta smelt in the Central Delta? 22 MR. BIRMINGHAM: I'm going to raise the same 23 objection that Mr. Brandt raised earlier. This goes to the 24 adequacy of the standards. And it doesn't relate to the 25 comparison of the Mokelumne with the San Joaquin that CAPITOL REPORTERS (916) 923-5447 3357 1 Mr. Nomellini was describing earlier. This goes directly 2 to the heart of whether or not the standards are adequate. 3 MR. NOMELLINI: I bet he's right. 4 C.O. CAFFREY: It's very generous of you. Why don't 5 you try another question, Mr. Nomellini. 6 MR. NOMELLINI: Okay. 7 MEMBER BROWN: Is he sustaining the objection, then? 8 C.O. CAFFREY: Mr. Nomellini sustained the objection, 9 which leads me, Mr. Nomellini -- 10 MR. NOMELLINI: I'm almost finished. 11 C.O. CAFFREY: Since you're in the mode of sustaining 12 objections, I thought you might be near the end. 13 MR. NOMELLINI: You think I'm getting weak, huh? 14 All right. This is Figure 2 from East Bay MUD 15 Exhibit Number 3. And, Mr. Guinee, calling your attention 16 to this figure, do you recognize that? 17 MR. GUINEE: I was here in the room when it was 18 presented to the Board. 19 MR. NOMELLINI: And the indications on the figure is 20 that the two river systems, the Merced and the Mokelumne of 21 the group of river systems reflected on the chart, each 22 have hatcheries, do you recall that testimony? 23 MR. GUINEE: You test my memory, but, yes, I vaguely 24 recall it. 25 MR. NOMELLINI: And it seemed like those rivers CAPITOL REPORTERS (916) 923-5447 3358 1 during this period of time have done rather well in 2 comparison to the two rivers that don't have hatcheries; is 3 that correct? 4 MR. GUINEE: I don't know that that's correct, but I 5 believe that's what they testified to. 6 MR. NOMELLINI: All right. Do you agree that this 7 chart, Figure 2 shows us that? Take 1992 through 1997, for 8 example, do we have any disagreement that the Mokelumne and 9 the Merced are reflecting a greater percent of historical 10 average winter-run? 11 MR. GUINEE: To answer that question I'd prefer to 12 have the numbers in front of me as to what the actual 13 historic average run was in each of those tributaries and 14 to what the actual returns were in each of those specific 15 years. 16 MR. NOMELLINI: All right. With regard to your 17 equitable fair share concept, which I believe the testimony 18 shows -- takes into consideration restoration of 19 proportional inflows. Is there any consideration that you 20 have included in that equitable fair share concept that 21 reflects the presence or absence of hatcheries? 22 MR. GUINEE: Actually, in discussing the ecological 23 fair share concept my intent was to look at habitat 24 restoration for natural production, so I didn't consider 25 the hatchery aspect of it. CAPITOL REPORTERS (916) 923-5447 3359 1 MR. NOMELLINI: Does that mean in terms of your 2 definition of -- or concept, excuse me, of equitable fair 3 share that flow should not be foregone because of fish 4 populations resulting from hatchery operations? 5 MR. GUINEE: Could you be more specific, please? 6 MR. NOMELLINI: Well, should we consider this or not 7 in determining -- should we consider hatcheries or not in 8 determining the equitable fair share of flow? 9 MR. GUINEE: I haven't really formed an opinion on 10 that. 11 MR. NOMELLINI: Okay. With regard to the 12 equitable -- 13 MS. GOUDE: Mr. Nomellini, I have. 14 MR. NOMELLINI: Okay. 15 MS. GOUDE: I think that the issue of fair share as 16 it relates to habitat for a ways is just one issue. And 17 that, for example, there's no hatchery that can produce 18 Delta smelt. And there's a lot of other endangered 19 species. And so, no, I don't think that hatchery should be 20 a surrogate for flow. 21 MR. NOMELLINI: Okay. And I'm almost to the end. 22 With regard to temperature in the reservoirs on streams 23 that have them, should that be factored in in determining 24 the equitable fair share of flow to restore this 25 proportional inflow? CAPITOL REPORTERS (916) 923-5447 3360 1 MR. GUINEE: As Ms. Goude testified to earlier, there 2 would be a lot of factors that would be considered in 3 looking at the ecological fair share for each tributary. 4 And temperature is -- downstream for the fish would be one 5 of those. 6 MR. NOMELLINI: And rather than have U.S. Fish and 7 Wildlife Service embark on such a task, your recommendation 8 is we have Tom Howard do it, is that your testimony? 9 MR. BRANDT: Objection. Argumentative. 10 MR. NOMELLINI: You want the Board to do it? 11 MR. GUINEE: What test are you specifically referring 12 to? 13 MR. NOMELLINI: You want the Board itself -- in your 14 recommendation you want the Board itself to do this 15 determination rather than the U.S. Fish and Wildlife 16 Service? 17 MR. GUINEE: What I testified to is when the Board 18 makes decisions about implementing the Water Quality 19 Control Plan and meeting the salmon narrative objective, 20 that it consider the approach similar to the equitable fair 21 share in the Mokelumne and Yuba that would provide improved 22 flows in the springtime specifically. 23 MR. NOMELLINI: Ms. Goude, do you want the State 24 Board to do this mimicking of the natural hydrograph taking 25 into consideration the aspects on the various streams CAPITOL REPORTERS (916) 923-5447 3361 1 without the U.S. Fish and Wildlife Service trying to lay 2 out that program first? 3 MS. GOUDE: I don't think I would be -- I don't know 4 if I would subject myself to this if I didn't consider that 5 the Service does have a part to play in the process and 6 provide input to the State Board, provide recommendations 7 through our recovery plans, critical habitat listing 8 packages and everything else we do. So, yes, we're 9 providing information and will continue to do so. 10 MR. NOMELLINI: Okay. Last question. Do you view 11 the role of the U.S. Fish and Wildlife Service in this 12 regard as one of reviewing the Board's action after it 13 makes its decision in addition to providing the input which 14 you have, for example, in Phase IV? 15 MR. BRANDT: I'm going to object. Calls for a legal 16 conclusion. I don't see how that is biological. Calling 17 for what the process is that they're proposing somehow. 18 C.O. CAFFREY: Yeah, I think it's -- 19 MR. NOMELLINI: Well, I think it's relevant, because 20 they have explained that they've put this out before you 21 and that they want you to do that. And I was trying to 22 figure out where they're going to fit in this process. And 23 I think it's relevant, but I'm ready to go sit down. 24 C.O. CAFFREY: Do you have an answer to the question, 25 Ms. Goude? CAPITOL REPORTERS (916) 923-5447 3362 1 MS. GOUDE: Yeah, and this is based on my 2 understanding which may be not the best understanding on 3 this issue. But I would think that the kind of information 4 would be coming forth in Phase VIII of the hearing and that 5 would be where you would present some of those information. 6 C.O. CAFFREY: All right. 7 MR. GUINEE: And I would add that hydrologically, 8 ecologically and biologically those tributaries are 9 connected to the Delta. So it would have a benefit to the 10 Delta as well as the aquatic resources in those tribs. 11 MR. NOMELLINI: Thank you for your patience. I'm 12 going to grab my overhead and go back to my -- 13 C.O. CAFFREY: Thank you, Mr. Nomellini. Next we 14 will go to Mr. Etheridge. This is a reminder, I'll name 15 the remaining list after Mr. Etheridge: Mr. Birmingham, 16 Mr. Gallery, Mr. Garner, Mr. Lilly, Mr. Campbell, 17 Mr. Johnston, Mr. Minasian, Mr. Suyeyasu, Mr. Herrick. So 18 it's a long list. 19 Mr. Etheridge, good afternoon, sir. 20 MR. ETHERIDGE: Good afternoon, Mr. Caffrey. I was 21 wondering if it would be possible for East Bay MUD, since 22 it put on its case in chief on the settlement on the 23 Mokelumne River, to cross-examine last in the order of 24 parties to cross-examine. 25 C.O. CAFFREY: There's no rule that says -- I usually CAPITOL REPORTERS (916) 923-5447 3363 1 take the names from the -- from those who raise their 2 hands. If someone has a violent objection, I need to hear 3 it now, or even a nonviolent objection would be acceptable. 4 MR. ETHERIDGE: Preferably nonviolent. 5 C.O. CAFFREY: You want to do it after Mr. Herrick, 6 if Mr. Herrick so deems to cross-examine? There may be 7 nothing to ask by that time. 8 MR. ETHERIDGE: That's true, it would make my job 9 easier. 10 C.O. CAFFREY: Mr. Herrick already recognized that 11 this morning. All right. I'll put you at the end of the 12 list, then, sir. 13 MR. ETHERIDGE: Thank you. 14 C.O. CAFFREY: All right, sir. Mr. Birmingham. 15 ---oOo--- 16 CROSS-EXAMINATION OF THE DEPARTMENT OF THE INTERIOR 17 BY WESTLANDS WATER DISTRICT 18 BY THOMAS W. BIRMINGHAM 19 MR. BIRMINGHAM: Mr. Guinee, Ms. Goude, my name is 20 Tom Birmingham. I am the attorney which is representing 21 Westlands Water District in the San Luis and Delta Mendota 22 Water Authority in connection with these proceedings. 23 Mr. Guinee, do you still have the overhead of 24 Exhibit 9B? 25 MR. GUINEE: Yes, I do. CAPITOL REPORTERS (916) 923-5447 3364 1 MR. BIRMINGHAM: Would you put that up on the 2 projector, please. Mr. Guinee, and, Ms. Goude, as well 3 during his examination of you Mr. Nomellini asked you a 4 number of questions concerning the extent to which the 5 flows that were depicted in Table 2-7 depicted the natural 6 hydrograph. 7 Do you recall those questions? 8 MR. GUINEE: Yes, I do. 9 MR. BIRMINGHAM: Now, is it correct, Mr. Guinee, that 10 the curve which is depicted on Exhibit 9B with diamonds, 11 lines going through them, represents the unimpaired flow 12 between 1921 and 1994 at Pardy Reservoir on the Mokelumne 13 River? 14 MR. GUINEE: That's correct. 15 MR. BIRMINGHAM: And that's an average of the 16 unimpaired flows at that site; is that correct? 17 MR. GUINEE: Right. 18 MR. BIRMINGHAM: And that's what you would 19 characterize as the natural hydrograph; isn't that correct? 20 MR. GUINEE: Yes, I would. 21 MR. BIRMINGHAM: And when you were talking about 22 mimicking the natural hydrograph, really you're talking 23 about selecting an alternative with a curve which is 24 similar in shape to the unimpaired flow; is that correct? 25 MR. GUINEE: Right. I kept emphasizing that concept CAPITOL REPORTERS (916) 923-5447 3365 1 of mimicking the curve, or the shape of the hydrograph. 2 MR. BIRMINGHAM: And in your testimony you referred 3 to alternative five as the alternative which you would 4 state most closely mimics the natural hydrograph, because 5 it is the shape of that curve which most closely depicts, 6 or is most similar to, the curve of the unimpaired 7 hydrograph; is that correct? 8 MR. GUINEE: Well, specifically for the Mokelumne I 9 was looking at that, the alternative five flows, which are 10 in the dark square and dark triangle, as you can see, do 11 mimic that curve. Whereas, the Mokelumne MOU flows, which 12 are in the white box and the white diamonds do not. 13 MR. BIRMINGHAM: And it was not your testimony, was 14 it, Mr. Guinee, that the flows that are depicted in Table 15 2-7 of the Draft Environmental Impact Report represent the 16 natural hydrograph? 17 MR. GUINEE: No. What I was saying was conceptually 18 that was the approach that we would recommend. And then 19 the actual numbers, as Ms. Goude said and I said earlier, 20 we would have to consider many variables and many factors 21 in arriving at what they should be. 22 MR. BIRMINGHAM: Ms. Goude, towards the conclusion of 23 his cross-examination of you Mr. Nomellini asked you a 24 question about the correlation between flow in the San 25 Joaquin River and survival of outmigrating salmon smolts. CAPITOL REPORTERS (916) 923-5447 3366 1 Do you recall that question? 2 MS. GOUDE: Yes, I do. 3 MR. BIRMINGHAM: And you testified that there are 4 studies that are ongoing that suggest that in some water 5 years there may be a correlation; is that correct? 6 MS. GOUDE: That's correct. 7 MR. BIRMINGHAM: Isn't it correct, Ms. Goude, that 8 the purpose of the Vernalis Adaptive Management Plan 9 experiment is to develop, or to gather data, on the 10 relationship between the survival of outmigrating salmon 11 smolts and export levels? 12 MS. GOUDE: That's correct. 13 MR. BIRMINGHAM: I think the rest of my questions are 14 going to be directed at Ms. Goude. 15 You'll have to pardon me for stating the obvious, 16 but it's your view, Ms. Goude, isn't it, that human 17 activity has significantly affected the Delta and upstream 18 watersheds? 19 MS. GOUDE: Yes, that's correct. 20 MR. BIRMINGHAM: And what are some of the affects 21 that human activity have had on the Delta? 22 MS. GOUDE: There's been alteration of flows, 23 contaminates, dredging, filling of wetlands, dam 24 construction, introduction of exotic species and other 25 human-induced adverse affects. CAPITOL REPORTERS (916) 923-5447 3367 1 MR. BIRMINGHAM: Is it your view that the Delta has 2 deteriorated as a result of produced diversity with respect 3 to the sources of water which flow into the Delta? 4 MS. GOUDE: That is correct. 5 MR. BIRMINGHAM: And is it your view that the Delta 6 continues to suffer from the historic reduction in Delta 7 inflow from some of its tributaries? 8 MS. GOUDE: Yes. 9 MR. BIRMINGHAM: Is it your view, Ms. Goude, that the 10 recovery of the Delta ecosystem will require some 11 restoration of Delta flow patterns, including the diversity 12 of source waters? 13 MS. GOUDE: Yes, I do. 14 MR. BIRMINGHAM: On what do you base that view? 15 MS. GOUDE: On the San Joaquin Native Fishes Recovery 16 Plan which was published by the Fish and Wildlife Service, 17 which that basically talked about restoration of listed 18 species in the Sacramento/San Joaquin Delta would require 19 an integrated program to reestablish both spawning habitat 20 migration corridors, rearing areas and upstream areas 21 the -- in the Delta Suisun Bay and Marsh. 22 MR. BIRMINGHAM: Now, is it correct that Delta smelt 23 live in the upper Sacramento/San Joaquin estuary including 24 Suisun Bay and Marsh? 25 MS. GOUDE: That is correct. CAPITOL REPORTERS (916) 923-5447 3368 1 MR. BIRMINGHAM: And is it correct that Delta smelt 2 depend on the watersheds that feed into the Delta? 3 MS. GOUDE: That is correct. 4 MR. BIRMINGHAM: Could you, please, explain the basis 5 of this view? 6 MS. GOUDE: Basically, you can't separate the various 7 interactions of the watersheds. And as we explained in the 8 listing decision and the recovery plan the causes of the 9 decline of Delta smelt are multiple and synergistic. And 10 Delta smelt, generally, evolve a respond and response to 11 both the rainfall and snowmelt runoff. 12 But one of the most important causes of Delta 13 smelt has been the decline of reduction in outflows and -- 14 from increased upstream storage and diversion for both the 15 Sacramento and San Joaquin tributaries have reduced the 16 total outflow and high-spring outflows. 17 MR. BIRMINGHAM: Now, it's correct, isn't it, that 18 estuaries -- I'm speaking here generally about estuaries 19 are highly dynamic systems? 20 MS. GOUDE: That's correct. 21 MR. BIRMINGHAM: And that, generally, estuaries are 22 dependent upon a spatial and temporal variation in 23 salinity, sediment, loading, nutrients and freshwater 24 inflows from contributing watersheds? 25 MS. GOUDE: Yes. CAPITOL REPORTERS (916) 923-5447 3369 1 MR. BIRMINGHAM: Now, is the San Joaquin -- or the 2 Sacramento/San Joaquin River Delta estuary different from 3 estuaries, generally? 4 MS. GOUDE: No, it is not. 5 MR. BIRMINGHAM: So it's correct, isn't it, that the 6 Sacramento/San Joaquin River Delta is dependent upon 7 spatial and temporal variations in salinity, sediment 8 loading, nutrients and freshwater inflows from contributing 9 watersheds? 10 MS. GOUDE: That's correct. 11 MR. BIRMINGHAM: Ms. Goude, is it correct that 12 species in the Delta have evolved with -- in relation to 13 flow regiments and other contributing elements over time? 14 MS. GOUDE: That's correct. 15 MR. BIRMINGHAM: Has the Fish and Wildlife Service 16 prepared a critical habitat for the Delta smelt? 17 MS. GOUDE: Yes, they have. 18 MR. BIRMINGHAM: And does the designation of the 19 critical habitat conclude that a variability is needed to 20 simulate the natural processes? 21 MS. GOUDE: That's right. 22 MR. BIRMINGHAM: And is it your view that until 23 roughly proportional inflows are restored from all of the 24 watersheds tributary to the Delta, that recovery of the 25 Delta estuary will be problematic? CAPITOL REPORTERS (916) 923-5447 3370 1 MS. GOUDE: That is correct. 2 MR. BIRMINGHAM: Is it your view that inflow from 3 each tributary should mimic the natural hydrograph? 4 MS. GOUDE: Yes, it is. 5 MR. BIRMINGHAM: And I asked Mr. Guinee some 6 questions earlier about this, but when you talked about 7 mimicking the natural hydrograph, what do you mean? 8 MS. GOUDE: What I mean is to roughly have it 9 proportional to the unimpaired hydrograph, to mimic it. 10 MR. BIRMINGHAM: And is it your view that spreading 11 the responsibilities for meeting flow dependent objectives 12 in the Delta would benefit aquatic resources in the Delta? 13 MS. GOUDE: Yes, it is. 14 MR. BIRMINGHAM: Now, Mr. Jackson asked you a number 15 of questions about what I think he characterized as 16 problems with the Delta smelt. And, actually, I think his 17 question is: 18 What is wrong with the smelt? And you responded 19 by stating that there are a number of factors which have 20 contributed to the decline in Delta smelt populations. Is 21 that correct? 22 MS. GOUDE: Yes, that is true. 23 MR. BIRMINGHAM: And you identified agricultural 24 diversions within the Delta? 25 MS. GOUDE: That's correct. CAPITOL REPORTERS (916) 923-5447 3371 1 MR. BIRMINGHAM: Diversions by power plants? 2 MS. GOUDE: There is -- there's power plant 3 diversions, agricultural diversions and, of course, the 4 state and federal facilities. 5 MR. BIRMINGHAM: And is this correct that there is 6 municipal diversions other than the state and federal 7 facilities that have contributed to the Delta smelt 8 populations? 9 MS. GOUDE: That is true. 10 MR. BIRMINGHAM: Now, later Mr. Jackson asked you 11 specifically about agricultural diversions in the Delta. 12 And I'd like to follow up on that, if I may. What is the 13 basis of your statement that agricultural diversions in the 14 Delta have contributed to the decline of the Delta smelt? 15 MS. GOUDE: That there have been some studies that 16 have shown, and they're early on, that there have been fish 17 that have been entrained, Delta smelt, or they have gone -- 18 they've caught them in the screening in these studies for 19 ag diversion studies. 20 But it's a new study and it hasn't been very well 21 carried out throughout the Delta. So I guess I'm 22 qualifying it quite a bit, because there's a lot of 23 different types of ag diversions at various depths. So it 24 really depends on the ag diversion and where it's located 25 and where the fish are and how much water they take. CAPITOL REPORTERS (916) 923-5447 3372 1 MR. BIRMINGHAM: Is the degradation of water quality 2 a factor which has resulted in the decline of Delta smelt 3 populations? 4 MS. GOUDE: Yes. 5 MR. BIRMINGHAM: Could you, please, explain that 6 further? 7 MS. GOUDE: Well, there's a lot of different ways, 8 contaminate loading, that could occur from both upstream 9 sources and within the Delta system. And there's probably 10 other contaminator water quality issues that -- sediment 11 intrusion -- sediment inputs into the Delta and other 12 actions that I really don't know all the details about. 13 MR. BIRMINGHAM: Mr. Jackson was once quoted -- and 14 you'll have to take my word for this. 15 MS. GOUDE: Okay. 16 MR. BIRMINGHAM: But Mr. Jackson was once quoted in 17 an article in the Sacramento Bee that the degradation of 18 the water quality is the result of, "The pumps, the pumps, 19 the pumps." Is that a statement with which you will agree? 20 MS. GOUDE: No. 21 MR. BIRMINGHAM: Would you agree that there are other 22 factors that have resulted in the degradation of aquatic 23 species in the Delta? 24 MS. GOUDE: Yes. 25 MR. BIRMINGHAM: And to water quality in the Delta? CAPITOL REPORTERS (916) 923-5447 3373 1 MS. GOUDE: That's correct. 2 MR. BIRMINGHAM: So you would agree that it's not the 3 pumps, the pumps, the pumps? 4 MS. GOUDE: I would agree that the pumps, the pumps, 5 the pumps are one factor as well as many, many other 6 issues. 7 MR. BIRMINGHAM: Thank you very much. I have no 8 further questions. 9 C.O. CAFFREY: Let's take a break, a break, a break. 10 We'll be back about ten minutes to 3:00. Thank you. 11 (Recess taken from 2:35 p.m. to 2:53 p.m.) 12 C.O. CAFFREY: All right. We are back. Let me make 13 an announcement. For a variety of reasons and schedules, 14 we have to finish today's session at a quarter to 4:00 to 15 accommodate one of the witnesses and a couple of the Board 16 Members as well. So we will not go beyond a quarter of 17 4:00 today, and then we'll come back and resume at 9:00 18 a.m. in the morning. 19 So with that, then, we will go to Mr. Gallery. 20 Good afternoon, sir. Welcome. 21 ---oOo--- 22 CROSS-EXAMINATION OF THE DEPARTMENT OF THE INTERIOR 23 BY WOODBRIDGE IRRIGATION DISTRICT 24 BY DANIEL F. GALLERY 25 MR. GALLERY: Good afternoon, Mr. Chairman. Thank CAPITOL REPORTERS (916) 923-5447 3374 1 you. I have a few questions of Ms. Goude. 2 First, Ms. Goude, could you just tell us briefly 3 about the Delta smelt? First, it's just first a very small 4 fish at adulthood. It's not longer than my finger; is that 5 correct? 6 MS. GOUDE: Yes, it is a small fish, yes. 7 MR. GALLERY: And it lives just for one year? 8 MS. GOUDE: Correct. 9 MR. GALLERY: Spawns in the Delta and then rears in 10 the Suisun Marsh, Suisun Bay Area; is that correct? 11 MS. GOUDE: It will rear also within the Delta some, 12 too. 13 MR. GALLERY: Yeah. And then is the smelt a part of 14 the food chain of larger fish in the Delta? 15 MS. GOUDE: Yes. 16 MR. GALLERY: What fish eat the smelt? 17 MS. GOUDE: There's a diversity of fish that eat 18 Delta smelt, about everything probably. 19 MR. GALLERY: Is it -- is it important in the food 20 chain for larger fish? Is that it's important to you as a 21 biologist? 22 MS. GOUDE: You know what is important to me as a 23 biologist is that some of these fish are unique only to the 24 Delta. And I think anything -- any time you have something 25 that is only found in one spot makes it much more unique CAPITOL REPORTERS (916) 923-5447 3375 1 and special than whether it's eaten by a bigger fish. 2 MR. GALLERY: Well, is it -- does it have an 3 importance, however, in the food chain for larger fish that 4 migrate through or live in the Delta? 5 MS. GOUDE: I assume it has some importance as well 6 as a lot of other small fish and, you know, different 7 organisms within the aquatic chain, food chain. 8 MR. GALLERY: Is there any data on that to show the 9 extent to which it's a food for the larger fish? 10 MS. GOUDE: I don't think there's really any 11 empirical type of studies that have demonstrated its value 12 in that sense, solely. But I think it's much more 13 important that it's one of the major ecological concepts 14 that it's an important species. And it's a federally 15 listed and state listed species. 16 MR. GALLERY: I understand that. Now, then, because 17 it's federally listed, that's the reason you did a 18 biological opinion on the JSA or FERC settlement with East 19 Bay MUD with respect to the Delta smelt? 20 MS. GOUDE: Correct. 21 MR. GALLERY: And I'm -- do I understand you to be 22 saying here that the East Bay MUD settlement flows are not 23 as adequate as you would like for the Delta smelt? 24 MS. GOUDE: Correct. 25 MR. GALLERY: What I was puzzled by was the provision CAPITOL REPORTERS (916) 923-5447 3376 1 in your -- in the Fish and Wildlife opinion on the East Bay 2 MUD settlement. Do you have a copy with you, Ms. Goude? 3 MS. GOUDE: I have a lot of biological opinions. 4 Let's find this one. Yeah, I have that one. 5 MR. GALLERY: And on page 23, the bottom paragraph, 6 could you read that paragraph into the record? 7 MS. GOUDE: The -- 8 MR. GALLERY: Bottom paragraph? 9 MS. GOUDE: Starting with, "After reviewing"? 10 MR. GALLERY: Yes. 11 MS. GOUDE: "After reviewing the current status of 12 Delta smelt the environmental baseline affects of 13 the settlement agreement alternative and 14 cumulative affects, it is the Service's biological 15 opinion the settlement agreement alternative and 16 as proposed is not likely to jeopardize the 17 continued existence of the Delta smelt, or result 18 in destruction, or adverse modification of 19 critical habitat for Delta smelt. Implementation 20 of the State Water Resource Control Board's 21 interim water quality control plan is the key 22 component necessary to conserve the species." 23 MR. GALLERY: Thank you. Now, that first sentence 24 that you read, it says, "That the East Bay MUD settlement 25 is not likely to jeopardize the continued existence of the CAPITOL REPORTERS (916) 923-5447 3377 1 smelt." It seems to me to say that you're okay with the 2 JSA flows, that they're not going to damage the smelt. 3 MS. GOUDE: When we do a biological opinion we 4 consult on the action before us. And the action before us 5 was the joint settlement agreement. And that was the 6 project that we were actually analyzing. And we wanted to 7 make a clarification that we were not analyzing and we were 8 not called on by FERC to consult on a broader scope. 9 MR. GALLERY: But you are saying here that the JSA 10 flows that will come down the river under the East Bay MUD 11 settlement are not going to damage the Delta smelt, aren't 12 you? 13 MS. GOUDE: No. What we said was it was not going to 14 jeopardize, but what we couldn't deal with was we had to 15 consult on the action before us. We can't expand what 16 we're consulting on past what the project description is 17 before us. 18 MR. GALLERY: Well, but if the project that was 19 before you was going to adversely impact the Delta smelt, 20 wouldn't you have said that in this opinion? 21 MS. GOUDE: It didn't also go -- what it was dealing 22 with was analyzing the affects of an increase, or the joint 23 settlement on Delta smelt. It didn't say that that was 24 what was sufficient to meet the objectives and the needs of 25 Delta smelt within the Delta. In fact, it explicitly CAPITOL REPORTERS (916) 923-5447 3378 1 discusses that it is not to deal with the Delta issues. 2 MR. GALLERY: Well, are you saying that the East Bay 3 MUD settlement flows will not adversely impact the Delta 4 smelt, but the smelt could use more water, is that what 5 you're saying? 6 MS. GOUDE: What it's saying is that we analyzed one 7 little small aspect of which was the project description 8 before us, but it didn't necessarily analyze the affects or 9 what was needed for within -- within the Delta. 10 MR. GALLERY: But the flows that you analyzed to come 11 from the JSA settlement are the flows that would go into 12 the Delta, aren't they? 13 MS. GOUDE: Well, if they get past Woodbridge. 14 MR. GALLERY: But your analysis had to look at the 15 flows that were going to get past Woodbridge into the Delta 16 under the settlement, didn't they? 17 MS. GOUDE: Right, but we also looked at the FERC 18 settlement agreement as well as we had a hydrologist look 19 and contracted out to look at the FERC agreement, the '61 20 settlement and the JSA. 21 MR. GALLERY: Okay. Then, let me turn to the other 22 point that you seem to be making that you feel that there 23 must be representative flows coming into the Delta from 24 each of the watersheds, or what you call, "a diversity of 25 flows," for the health of the Delta. CAPITOL REPORTERS (916) 923-5447 3379 1 Is that part correct? 2 MS. GOUDE: I'm sorry. I wasn't -- 3 MR. GALLERY: You call -- you believe that there must 4 be what you call a diversity of flows coming into the Delta 5 from all the historical sources, that's in a state of 6 nature, that's important for the health of the Delta? 7 MS. GOUDE: A contribution from the various 8 tributaries -- 9 MR. GALLERY: Yes. 10 MS. GOUDE: -- within the various areas -- 11 MR. GALLERY: Yes. 12 MS. GOUDE: Yes. 13 MR. GALLERY: And then on each of the tributaries you 14 believe that there should be a correlation between the 15 historical pattern of flows and the contribution which 16 should be made from that tributary now under the plan? 17 MS. GOUDE: Correct. And after thinking about some 18 things it seems to me that there's two issues of 19 proportionality that haven't really -- that people were 20 asking me two different questions. 21 One, is the mimicking the natural hydrograph as it 22 relates to the individual stream. And, then, it's the 23 proportionality within the overall stream -- system within 24 the whole Delta -- I mean within the whole watershed 25 contribution as one stream relates to another. CAPITOL REPORTERS (916) 923-5447 3380 1 MR. GALLERY: So the way you -- 2 MS. GOUDE: So there's two proportions and I wasn't 3 grasping. 4 MR. GALLERY: The way you said it I think I 5 understand it. You would like the -- on each tributary 6 you'd like the contribution under the plan and then the 7 flows -- the pattern of flows from that tributary in an 8 unimpaired state. And, then, you would like an 9 approximately proportionate contribution from each 10 tributary that comes into the Delta? 11 MS. GOUDE: Correct. 12 MR. GALLERY: Yes. Now, what -- are you familiar 13 with the San Joaquin River Agreement? 14 MS. GOUDE: Yes. 15 MR. GALLERY: What -- I'm a little puzzled by your 16 position there. As I understand the San Joaquin River 17 Agreement it provides that the tribute to the Tuolumne and 18 the Merced tributaries will make contributions to the Delta 19 only during the spring pulse-flow period of 30 days. And 20 then some contribution in October for -- to attract 21 in-migration fish. And that they wouldn't -- those 22 tributaries would have no responsibility for Delta 23 contribution during the rest of the February/June period 24 when you want flows for the smelt; is that correct? 25 MS. GOUDE: You also -- the OCAP opinion stays in CAPITOL REPORTERS (916) 923-5447 3381 1 place and so the projects would also be contributing those 2 proportion of flows. So OCAP and -- would still continue 3 to be met irrespective. 4 MR. GALLERY: When you say "the OCAP," could you -- 5 you mean under the biological opinion for OCAP? 6 MS. GOUDE: Correct. 7 MR. GALLERY: That is the March 1995 opinion? 8 MS. GOUDE: I have -- I just want to make a check to 9 make sure that I have got the -- 10 MR. GALLERY: Yes. 11 MS. GOUDE: Yes. 12 MR. GALLERY: But under the San Joaquin River 13 Agreement, which will take the place of the OCAP opinion 14 under the '95 plan -- isn't that the proposal? 15 MS. GOUDE: No, it will not take the place of the 16 opinion. The opinion stands that always holds, and then 17 would meet those objectives and match them. It does not 18 replace the biological opinion for March 6th, 1995. 19 MR. GALLERY: But if the Water Board adopts the San 20 Joaquin River Agreement as the contribution of the San 21 Joaquin River, that will take care of the obligation of the 22 San Joaquin and the OCAP opinion will stand aside; isn't 23 that correct? 24 MS. GOUDE: That is not correct. Right now the OCAP 25 opinion is with the Bureau of Reclamation and the State CAPITOL REPORTERS (916) 923-5447 3382 1 Water Project with the Department of Water Resources. And 2 they have certain requirements under that opinion for where 3 they can meet it based on their federal and state 4 facilities. There are certain streams and tributaries that 5 are not state or federal and don't contribute to meeting 6 those objectives. 7 MR. GALLERY: Correct. 8 MS. GOUDE: Irrespective of the San Joaquin, OCAP 9 stays. And on the San Joaquin side the Bureau and the 10 State Water Project, where it's applicable, would continue 11 to meet those objectives as in the OCAP opinion. 12 MR. GALLERY: But on the San Joaquin for the Bureau 13 to meet those objectives it would have to do it through 14 releases through the New Melones reservoir; is that 15 correct, that's the only sources -- that's the primary 16 source? 17 MS. GOUDE: And, also, I would imagine there's other 18 sources and there's also probably acquisition of water and 19 there's also export reductions. There's probably a myriad 20 of things the operators do. 21 MR. GALLERY: All right. But then is the U.S. Fish 22 and Wildlife -- U.S. Fish and Wildlife has not signed the 23 San Joaquin River Agreement that's been signed through the 24 Department of Interior, if I'm correct. 25 MR. BRANDT: If you know. CAPITOL REPORTERS (916) 923-5447 3383 1 MR. GALLERY: Do you understand that? 2 MS. GOUDE: I don't remember who signed it. Who 3 signed -- 4 MR. BRANDT: I don't, but I mean -- 5 MR. GALLERY: Did you participate, Ms. Goude, in the 6 discussions and negotiations for the San Joaquin agreement, 7 or in the Bureau's review of the agreement? 8 MS. GOUDE: I reviewed portions of the agreement 9 as -- 10 C.O. CAFFREY: Excuse me for a moment. Mr. Godwin, 11 did you have something? 12 MR. GODWIN: Mr. Gallery, the San Joaquin River 13 Agreement was already introduced into the record. And it's 14 San Joaquin River Group Exhibit Number 2, I believe. And 15 it will show you who signed it and who didn't. 16 C.O. CAFFREY: I didn't hear the last part of what 17 you said, Mr. Godwin. 18 MR. GODWIN: It was the statement of support that 19 people signed. No one has signed the agreement. We 20 testified to that in Phase II. 21 C.O. CAFFREY: Thank you, sir. 22 MR. GALLERY: That's correct. I stand corrected on 23 that. Well, my basic question, Ms. Goude, is this: Where 24 is U.S. Fish and Wildlife with its proposing diversity and 25 proportionality of flows from different tributaries? CAPITOL REPORTERS (916) 923-5447 3384 1 Where is U.S. Fish and Wildlife with respect to 2 how the San Joaquin River Agreement will operate under 3 which the Merced and Tuolumne Rivers only have -- they 4 don't contribute in the way that you're talking about 5 proportionally, or in that respect at all? They just have 6 some contributions during two periods during the year. Is 7 U.S. Fish and Wildlife okay with that notwithstanding your 8 concept here? 9 MS. GOUDE: As I understand it, this was a 12-year 10 study to analyze the affects and the relationship for 11 salmon. And irrespective of the study, the OCAP opinion 12 stays in place. And the responsibilities of meeting those 13 objectives on the San Joaquin side are in place as well as 14 there are benefits within the OCAP opinion, it talks about 15 a pulse flow for Delta smelt. And the San Joaquin 16 agreement proposed flows would help contribute making those 17 possible. And those, in fact, are some of the most 18 difficult flows to achieve. 19 MR. GALLERY: But the OCAP opinion can only pull 20 water out of the New Melones as a practical matter as far 21 as contributing additional flows, correct? 22 MS. GOUDE: No. I stated before that there's a 23 number of ways. I'm not the people that run operations, 24 but what I understand is there is purchases of water, there 25 can be export reductions, there can be different mechanisms CAPITOL REPORTERS (916) 923-5447 3385 1 to deal with it. 2 MR. GALLERY: But those are -- those are -- those are 3 voluntary arrangements under the San Joaquin River 4 Agreement, are they not? 5 MR. BRANDT: Objection. Vague as to "voluntary." 6 C.O. CAFFREY: Could you expand on that a little bit? 7 MR. GALLERY: I think I'll let that go, Mr. Chairman. 8 C.O. CAFFREY: All right, sir. 9 MR. GALLERY: I think I've gone far enough with that. 10 Mr. Guinee, I wanted to ask you a couple of 11 questions. You testified that for purposes of -- that the 12 salmon -- I guess the fall-run salmon on the Mokelumne 13 would be better off with more flows that are provided for 14 under the East Bay MUD settlement. Is that essentially 15 what you are saying? 16 MR. GUINEE: Yes, it is. 17 MR. GALLERY: You were here -- did you hear the 18 testimony of East Bay MUD? As I got it, the East Bay MUD 19 plan preserves some cold water in the hypolimnion for the 20 benefit of spawning and rearing of salmon downstream from 21 Camanche. 22 And that you testified, as I recall it, that if 23 the alternative five approach were adopted, that the salmon 24 would not do nearly as well in the Mokelumne. Do you 25 recall that kind of testimony? CAPITOL REPORTERS (916) 923-5447 3386 1 MR. GUINEE: I sat through most of that testimony and 2 remember them expressing their concerns for temperatures in 3 a few critically dry years. 4 MR. GALLERY: Well, then, have you -- you're 5 advocating, I understand, something like alternative five 6 on the Mokelumne would provide more water for the salmon in 7 the Mokelumne. Is that what I understand you to say? 8 MR. GUINEE: Yes, that's what my testimony says, 9 uh-huh. 10 MR. GALLERY: Have you, Mr. Guinee, done some kind of 11 study or analysis that would take your flows and operate 12 the Mokelumne River system to demonstrate that that would 13 be better for the salmon on the Mokelumne? 14 MR. GUINEE: No. As I said earlier, I used this 15 comparison as a, you know, starting point to look at the 16 concept of the ecological fair share and did not do the 17 detailed analysis that you asked about. 18 MR. GALLERY: I see. Then, this one last question 19 for Ms. Goude. In your testimony, Ms. Goude, you say that 20 on page 2 -- are you with me on page 2 of your testimony? 21 MS. GOUDE: Yeah. 22 MR. GALLERY: Could you read the third sentence which 23 begins at the top of page 2, "The Service entered into." 24 MS. GOUDE: "The Service entered into this settlement 25 agreement with the understanding that the flow and CAPITOL REPORTERS (916) 923-5447 3387 1 nonflow measures included in the agreement were 2 intended to provide reasonable protection above 3 current conditions for the anadromous fishery and 4 other resources of the Lower Mokelumne." 5 MR. GALLERY: So that this is your testimony on 6 salmon not on Delta smelt. Do I read that correctly? 7 MS. GOUDE: Correct. 8 MR. GALLERY: Yeah. So that the Service -- 9 MS. GOUDE: I should mention that we did not 10 authorize incidental take under this opinion for Delta 11 smelt. 12 MR. GALLERY: I see. But in signing the agreement 13 you were satisfied that the East Bay MUD settlement flows 14 would provide reasonable protection, at least above current 15 conditions for the salmon? 16 MS. GOUDE: I really did not do the analysis or look 17 at the salmon issues. 18 MR. GALLERY: I see. That's all I have, 19 Mr. Chairman. 20 C.O. CAFFREY: All right. Thank you, Mr. Gallery. 21 Mr. Garner, I believe you were next. Good afternoon. 22 ---oOo--- 23 CROSS-EXAMINATION OF THE DEPARTMENT OF THE INTERIOR 24 BY THE STATE WATER CONTRACTORS 25 BY ERIC GARNER CAPITOL REPORTERS (916) 923-5447 3388 1 MR. GARNER: Good afternoon, Chairman Caffrey and 2 Members of the Board. Eric Garner on behalf of the State 3 Water Contractors. I just have a few questions. Actually, 4 Mr. Birmingham covered most of the ground I was going to 5 cover, but -- and these are for either Ms. Goude or 6 Mr. Guinee, depending on whoever feels more comfortable 7 answering them. 8 First, you both very gamely tried to answer some 9 detailed analytical questions regarding the concept of 10 ecological fair share and mimicking the natural hydrograph. 11 But am I correct in stating that what was really brought to 12 Phase IV was a concept? 13 MS. GOUDE: That is correct. 14 MR. GARNER: And that you would anticipate doing more 15 work to flush that out if and/or when we get to a Phase 16 VIII? 17 MS. GOUDE: That is correct. 18 MR. GARNER: Okay. Is it your recommendation from a 19 biological basis, now, that the State Board choose an 20 alternative that does not put the full responsibility for 21 meeting the 1995 Water Quality Control Plan standards on 22 the State Water Project and on the Central Valley Project? 23 MS. GOUDE: That is correct. 24 MR. GARNER: And from a biological basis, why is 25 that? CAPITOL REPORTERS (916) 923-5447 3389 1 MS. GOUDE: Because they do not control all the 2 watersheds. There is certain watersheds and certain 3 tributaries that do not provide very much inflow. And if 4 you have an increase of different contributions it would 5 improve the diversity of flows into the estuary. And, 6 actually, it would probably allow additional flexibility 7 within the Delta for water operations that would benefit 8 Delta smelt, also. 9 MR. GARNER: Okay. Thank you very much. I have no 10 further questions. 11 C.O. CAFFREY: All right. Thank you, Mr. Garner. 12 Mr. Lilly. Good afternoon. 13 ---oOo--- 14 CROSS-EXAMINATION OF THE DEPARTMENT OF INTERIOR 15 BY YUBA COUNTY WATER DISTRICT, et al. 16 BY ALAN LILLY 17 MR. LILLY: Good afternoon, Chairman Caffrey and 18 Members of the Board. My name is Alan Lilly. I'm here 19 representing various water districts in the Sacramento 20 Valley. 21 Ms. Goude, I have not met you before, but my name 22 is Alan Lilly, as I said before, representing various water 23 districts. Mr. Guinee, we obviously know each other from 24 the 1992 Lower Yuba River hearings and other contexts. 25 I'll start with questions for you, Ms. Goude. Do CAPITOL REPORTERS (916) 923-5447 3390 1 you have your written testimony in front of you? 2 MS. GOUDE: Yep. 3 MR. LILLY: I'm just going to go through a couple of 4 statements here. In paragraph two the second sentence you 5 say the Delta has deteriorated due in part to the 6 reversed -- reduced diversity of its source waters. Do you 7 see that statement? 8 MS. GOUDE: Correct. 9 MR. LILLY: And, then, further in paragraph two you 10 state that the San Joaquin drainage and the east side 11 tributaries contribute too little Delta inflow to sustain 12 San Joaquin River and Delta fisheries. Do you see that? 13 MS. GOUDE: Uh-huh. 14 MR. LILLY: Okay. 15 MS. GOUDE: Yes. I'm sorry. 16 MR. LILLY: Okay. Going forward to paragraph three, 17 I don't quote it, but you once again emphasize the 18 importance of Delta inflows from the San Joaquin River and 19 from the east side streams. Is that correct? 20 MS. GOUDE: That is correct. 21 MR. LILLY: So your written testimony does not 22 contain any statement regarding Delta inflows from the 23 Sacramento River, does it? 24 MS. GOUDE: It -- it talks about the recovery plan. 25 And the recovery plan very heavily talks about the CAPITOL REPORTERS (916) 923-5447 3391 1 Sacramento River and so does critical habitat and so does 2 the biological opinions and all the bases for the listing. 3 MR. LILLY: Okay. But your written testimony does 4 not discuss the importance, or lack of importance, of flows 5 on the Sacramento -- from the Sacramento River into the 6 Delta, does it? 7 MS. GOUDE: I view that it, in fact, does by 8 reference. But if you want to -- and also my subsequent 9 oral testimony talks about the contributions from all the 10 various tributaries and their importance. You couldn't 11 look at the system without looking at the Sacramento River. 12 MR. LILLY: Okay. In fact, besides the San Joaquin 13 River and the east side tributaries the Sacramento River is 14 the only major source of Delta inflow; is that correct? 15 MS. GOUDE: There is tributaries that feed into the 16 Sacramento River. And there is tributaries that feed in 17 and come into the San Joaquin. And I don't know exactly 18 what you define as "major." 19 MR. LILLY: Well, I'm not trying to trick you, but 20 all the -- as far as the tributaries that flow into the 21 Sacramento, they're all in the Sacramento before they get 22 to the Delta, aren't they? 23 MS. GOUDE: Okay. 24 MR. LILLY: So the major sources of inflow into the 25 Delta are the Sacramento River -- we'll say Sacramento CAPITOL REPORTERS (916) 923-5447 3392 1 River at Rio Vista, the San Joaquin River at Vernalis and 2 the east side tributaries; is that correct? 3 MS. GOUDE: Okay. Yes. 4 MR. LILLY: Now, you've talked at length about the 5 phase in paragraph four of your testimony about roughly 6 proportional inflows. Do you see that? It's in the first 7 sentence of paragraph four of your testimony. 8 MS. GOUDE: Correct. 9 MR. LILLY: So roughly proportional inflows, do you 10 mean the relative proportions of flows from the San Joaquin 11 River to east side streams and the Sacramento River? 12 MS. GOUDE: As I stated in an earlier response, I 13 think proportional has two meanings that have to deal with 14 each tributary, for example, the Feather or the Yuba 15 contributions. As well as the proportion that those make 16 within the system. 17 MR. LILLY: Okay. So your testimony is that it's 18 also important that there be certain relative proportions 19 of contributions from the various tributaries of the 20 Sacramento River itself; is that correct? 21 MS. GOUDE: Yes, that's what I've been saying. 22 MR. LILLY: All right. And I think in response to 23 one of Mr. Birmingham's questions you said that one of the 24 causes of the Delta smelt decline was the lack of 25 contribution from all of the different tributary sources. CAPITOL REPORTERS (916) 923-5447 3393 1 Is that correct? 2 MS. GOUDE: Probably, yes. 3 MR. LILLY: All right. Can you name any specific 4 sources of water, specific tributaries in the Sacramento 5 Valley that have had such reductions that impact the Delta 6 smelt? 7 MS. GOUDE: You mean that don't contribute water to 8 the system? 9 MR. LILLY: That don't contribute as much water to 10 the system as you believe they should for recovery of the 11 Delta smelt? 12 MS. GOUDE: Well, I would assume the one that 13 Mr. Guinee has provided information on would be the Yuba. 14 MR. LILLY: Okay. Do you have any specific 15 information that flows in the Yuba River have specifically 16 adversely affected Delta smelt? 17 MS. GOUDE: You cannot separate which flow and which 18 proportion has affected Delta smelt. But you can see that 19 the reduction in outflow and the increase of exports during 20 certain periods of time have shown a decline, corresponding 21 decline of Delta smelt. 22 MR. LILLY: All right. I'm going to put on the 23 overhead a drawing which will help me illustrate a 24 hypothetical question. I've labeled this as Exhibit 25 YCWA 1. I have given 20 copies to the staff. And I have CAPITOL REPORTERS (916) 923-5447 3394 1 copies for the audience as well. I think that's 20. Let 2 me know if you need more. I'll just set them here on the 3 table. 4 MS. GOUDE: It's a math question. 5 MR. LILLY: Okay. We've heard a lot of generic and 6 general discussion about roughly proportional inflows. And 7 I thought it would be useful if we had some specific 8 numbers. And rather than ask you to remember everything in 9 your mind, I thought it would be more useful and clearer if 10 I spelled out an example here. This is a hypothetical 11 example. And we'll start out by assuming these two 12 different scenarios for flows in the system during November 13 of a hypothetical year. 14 Scenario one, you can see the upper Sacramento 15 River has a flow of 2,000. These numbers are all in csf. 16 The Feather above the Yuba 1600. The Yuba is 400. So 17 below the confluence of those two rivers is 2,000. 18 Obviously, then, going down the Sacramento River is 4,000. 19 The American we have 500. So we have 4500 below that. 20 The Mokelumne at 500. The San Joaquin at a thousand. 21 Delta consumptive use of a thousand, which leaves a Delta 22 outflow of 5,000. That's scenario Number 1. 23 And I'll tell you, and you can check it over, the 24 only difference in scenario number two is that the Feather 25 flow is 300 csf lower. And the Yuba flow is 300 csf CAPITOL REPORTERS (916) 923-5447 3395 1 higher. All the other flows in the rest of the system are 2 exactly the same. And for the purposes of the hypothetical 3 I want you to assume that there are no other differences 4 and conditions. 5 Now, my first -- and would you like to take just a 6 minute to look this over, or is it clear in your mind? 7 MS. GOUDE: It's clear what this says. 8 MR. LILLY: All right. Good. Now, do you have any 9 opinion as to whether the habitat for Delta smelt would be 10 any different under scenario two than under scenario one? 11 MS. GOUDE: So -- what water year type is this? 12 MR. LILLY: I said this is November. Since we have 13 all the flows specified there's really not a need to 14 specify -- 15 MS. GOUDE: So it's just November? 16 MR. LILLY: -- a water year type. 17 MS. GOUDE: Well, basically for Delta smelt, although 18 all months have a certain amount of importance, the 19 February through June period is the area that we most look 20 at and analyze for our affects and analysis. It is not 21 November. So it probably, in this scenario, has more of an 22 import for salmon. 23 MR. LILLY: Okay. So as far as Delta smelt is 24 concerned, then your opinion is that there would be no 25 difference on Delta smelt habitat in November between CAPITOL REPORTERS (916) 923-5447 3396 1 scenario one and scenario two; is that correct? 2 MS. GOUDE: However, I don't know everything about 3 the estuarine ecology and biology of Delta smelt. And as I 4 said, a lot of ecological texts talk about the importance 5 of source waters and contributions from various watersheds. 6 But those are things that you could never quantify or 7 empirically study, but it's commonly discussed in 8 ecological texts and estuarine texts. 9 MR. LILLY: Okay. But as an expert in Delta smelt 10 biology, are you aware of any biological basis for stating 11 that there would be any difference in Delta smelt habitat 12 between scenario one and scenario two as I've shown here on 13 Exhibit YCWA 1? 14 MS. GOUDE: Based on -- only what I can say is on the 15 issues as it relates to estuaries and text on the need for 16 source water, but as you can only make those 17 generalizations you can't relate it back to Delta smelt. 18 And had there been any studies that say you need X from the 19 San Joaquin and X from the Yuba or Feather, no, you cannot. 20 There's no studies that show just that. 21 MR. LILLY: Okay. Well, I'm not asking just if 22 there's any studies. I'm asking if you have any opinion as 23 to whether just the difference between flows between the 24 Feather and Yuba River would have any affect on Delta 25 smelt? CAPITOL REPORTERS (916) 923-5447 3397 1 MS. GOUDE: I view that in November probably not. 2 MR. LILLY: All right. Now, let's go forward. Tell 3 me if we have this same scenario in other months of the 4 year, is there any month of the year when the difference in 5 flows between the Feather River and the Yuba River that are 6 shown between scenarios one and two would have any affect 7 on Delta smelt? 8 MS. GOUDE: The problem with these scenarios is that 9 on certain critically dry years and certain water year 10 types you wouldn't be able to provide this proportion from 11 both of those systems. So it's not a fair scenario. So I 12 really don't want to answer that on that basis, because it 13 just does not provide enough criteria and assumptions 14 within the analysis. 15 MR. LILLY: All right. I will try to make the 16 question slightly more general, although I want to be as 17 specific as I can so we can get specific answers. The 18 concept that I'm showing here between scenario one and 19 scenario two, obviously, is a situation where the flows in 20 the entire Delta/San Joaquin/Sacramento River system and 21 all the other conditions are exactly the same except for 22 variation between the flows in the Yuba River and the 23 Feather River. 24 Now, considering dry years, wet years, average 25 years and any month that you think is appropriate, is there CAPITOL REPORTERS (916) 923-5447 3398 1 any time when you believe that the relative amount of water 2 coming from the Yuba River and the Feather River would have 3 an affect on Delta smelt if all the other conditions are 4 the same between the two scenarios? 5 MS. GOUDE: Yes, I do think that there would be 6 times. But could I quantify or tell you what they would 7 be, no, I could not. 8 MR. LILLY: All right. And even if you can't 9 quantify it, can you tell me any biological basis for why 10 the mix of water between the Yuba and the Feather River has 11 any affect on Delta smelt assuming that between the two 12 scenarios the flows in the lower Feather River and the 13 Sacramento River and the inflow to the Delta are the same? 14 MS. GOUDE: I can't tell you. There is a lot of 15 things that have a common principle within the estuary. 16 And I wish the Delta was this simple and then I could write 17 a biological opinion based on a scenario like this. But, 18 basically, this is not how it is ever operated. And this 19 is not how you would ever have to deal with it. And you 20 deal with it -- you have to look at every day. You have to 21 look at monthly operations and what the export levels are 22 and what reverse flows are and many other things. And to 23 sit there and look at a schematic like this is really hard 24 to give you some sort of general answer. 25 MR. LILLY: Well, I'm not asking for a general CAPITOL REPORTERS (916) 923-5447 3399 1 answer. I'm asking for a specific answer. And I 2 appreciate that the Delta system is much more complicated 3 than I've illustrated than on this scenario. I'll try to 4 ask the question rather than just looking at this chart. 5 Considering all the complexity that you know with 6 your broad expertise with the Delta smelt, I would like to 7 know are you aware of any biological basis for saying that 8 the relative mix of flows between the Feather and the Yuba 9 River will have any affect on Delta smelt, assuming that 10 all the other conditions in the system are the same? 11 MS. GOUDE: And what I said is normal -- there's a 12 lot of texts, a lot of studies on estuaries within the 13 system, and this is a similar type of estuary, and they 14 discuss the needs for contributions from various 15 watersheds. And so I can only presume that that would have 16 an affect on Delta smelt. And that is an importance. But 17 could I tell you what factor, or biological, physical, or 18 chemical reason or action that is, no, I could not. 19 MR. LILLY: All right. And so are some of the 20 examples of these texts that talk about what you call the 21 need for roughly proportional inflows, is one of those the 22 recovery plan for the Sacramento/San Joaquin Delta native 23 fishes? 24 MS. GOUDE: Well, that's not an estuary text, but 25 that is one of the items that we discussed. CAPITOL REPORTERS (916) 923-5447 3400 1 MR. LILLY: Now, I think you listed in your written 2 testimony another one is the final rule for the Delta 3 smelt; is that correct? 4 MS. GOUDE: Correct. And there's also the critical 5 habitat designation. 6 MR. LILLY: Okay. So your testimony is that those 7 documents talk, at least in general terms, about the need 8 for proportionate contributions from various tributaries? 9 MS. GOUDE: It talks about improvements, or 10 contributions. It talks about -- actually, the critical 11 habitat -- the different ones talk about the need for 12 looking at the State Board and mechanisms to provide 13 additional inflow from different watersheds. 14 MR. LILLY: Okay. But you're not aware of any 15 biological basis for the statement that relative 16 contributions from the different tributaries to the 17 Sacramento River has any -- any understandable biological 18 affect on Delta smelt in the Delta? 19 MS. GOUDE: I think it also depends on the tributary 20 and which fish you're looking at, too. Remember the native 21 fishes recovery plan covered a number of fishes. 22 MR. LILLY: Okay. So, basically, you're saying 23 that -- about all you can say is, generally, you think the 24 roughly proportional concept is important; but as far as 25 the relative contribution between the Feather and the Yuba CAPITOL REPORTERS (916) 923-5447 3401 1 River, for example, you cannot give any specific basis for 2 that? 3 MS. GOUDE: As it relates to Delta smelt. However, I 4 understand that there is salmon that are located on both of 5 those tributaries. 6 MR. LILLY: Oh, don't worry, we'll get to the salmon. 7 But as it relates to Delta smelt; is that correct? 8 MS. GOUDE: As I stated before, it's general concepts 9 and biological principles that have been used in so many 10 estuaries throughout this land. 11 MR. LILLY: All right. Just so we're clear, it's 12 general concepts but no specific biological basis; is that 13 correct? 14 MS. GOUDE: I thought -- yeah, that's what I've been 15 saying. 16 MR. LILLY: Okay. Good. Now, let's go forward to 17 splittails since there are, of course, other species. Do 18 you have any biological basis for saying that splittail 19 would be affected if the relative mix of flows in the 20 Feather River and the Yuba River are changed as I've given 21 an example here in scenario one and scenario two? 22 MS. GOUDE: There it depends on whether the -- on the 23 distribution for splittail. I -- you know, I need to think 24 about that. Sorry. 25 MR. LILLY: Okay. But assuming that the splittail do CAPITOL REPORTERS (916) 923-5447 3402 1 not go up in the system as high as the confluence between 2 the Yuba River and the Feather River and, of course, in my 3 example on scenario one and scenario two, all the flows 4 below the confluence and everywhere else in the system are 5 the same in both examples, can you explain any biological 6 basis for a difference in impacts or affects on splittail 7 between scenario one and scenario two? 8 MS. GOUDE: The -- I, again, say that it's a similar 9 sort of answer. In splittail, if they are in that area may 10 have more -- since they're closer and within the 11 Sacramento, may have more natal issues as it relates to the 12 streams. 13 MR. LILLY: Okay. But can you explain how natal 14 issues could be -- for splittail could be affected by the 15 relative mix between the Feather and the Yuba River? 16 MS. GOUDE: Well, we don't know everything that has 17 to do with those fish and the physiological responses for 18 spawning or anything else. I mean there may be -- when 19 you're dealing with a proposed species and an endangered 20 species to assume and preclude options and actions that 21 could, in fact, jeopardize the species by your action now 22 would be shortsighted. 23 MR. LILLY: So, again, for splittail it's just the 24 general concept of roughly proportional inflows rather than 25 any specific biological basis of which you are aware? CAPITOL REPORTERS (916) 923-5447 3403 1 MS. GOUDE: Well, the difference is the splittail are 2 within the Sacramento River system. 3 MR. LILLY: Okay. And how is that a difference when 4 we're talking about a relative mix in flows -- 5 MS. GOUDE: I'm just saying. 6 MR. LILLY: Excuse me, let me finish the question. 7 That's upstream of part of the Feather River and the flows 8 from the lower Feather into the Sacramento would be the 9 same under both circumstances? 10 MS. GOUDE: It has similar issues. I was just 11 pointing out the fact that the splittail were further into 12 the Sacramento River. 13 MR. LILLY: Okay. But when you say "similar issues," 14 once again, you cannot give any specific biological basis 15 for saying that the relative mix of flows between the 16 Feather and the Yuba River would affect the splittail? 17 MS. GOUDE: There's no specific biological issues 18 except for studies that have been done for years on 19 estuaries. 20 MR. LILLY: All right. Let's go forward to other 21 resident native Delta fish species. Is there any other 22 resident native Delta fish species that you believe would 23 be affected by the relative mix of flows between the 24 Feather River and the Yuba River, assuming that all the 25 other flows in the system are the same? CAPITOL REPORTERS (916) 923-5447 3404 1 MS. GOUDE: I think that I'd have to look at my Delta 2 native fishes recovery plan, but I think it included 3 sturgeon. 4 MR. LILLY: So my question is: Would sturgeon, or 5 any other native fish species in the Delta, be affected by 6 the relative mix of flows in the Feather and Yuba River 7 assuming that flows everywhere else in the system are the 8 same? 9 MS. GOUDE: Assuming that sturgeon use those systems, 10 they may in fact. And I don't know the distribution of the 11 green and white sturgeon enough. And I don't think anybody 12 else does, but if they are using those tributaries then it 13 would. 14 MR. LILLY: Okay. And the reason it would then could 15 be because the actual flows in the tributary would 16 determine the amount of sturgeon habitat in those 17 tributaries? 18 MS. GOUDE: That's part of it. It could also be some 19 other factor that brings them back to certain streams. 20 MR. LILLY: All right. But you are not aware as to 21 whether or not the sturgeon, actually, go up the Feather 22 River to the confluence with the Yuba? 23 MS. GOUDE: I don't know how far the Feather -- how 24 far the sturgeon go up. 25 MR. LILLY: Okay. All right. Now, I'll go forward. CAPITOL REPORTERS (916) 923-5447 3405 1 Any other Delta -- resident native Delta fish species that 2 you believe would be affected by the relative mix of flows 3 in the Feather and the Yuba River assuming flows everywhere 4 else in the system were the same? 5 MS. GOUDE: I don't -- I can't recall of any other 6 one. 7 MR. LILLY: All right. I assume, Mr. Guinee, it's 8 better if I ask you the line of questions regarding the 9 chinook salmon; is that correct? 10 MR. GUINEE: That's correct. 11 MR. LILLY: Okay. You have listened to my questions 12 of Ms. Goude regarding my hypothetical scenarios one and 13 two? 14 MR. GUINEE: Yes, I have. 15 MR. LILLY: All right. I won't repeat the whole list 16 of assumptions, but if you have any questions about the 17 assumptions that went into the scenarios, please, let me 18 know. 19 Now, do you have any opinion as to whether or not 20 the habitat for any of the runs of Sacramento Valley 21 chinook salmon would be affected by the differences that 22 are shown between scenarios one and two? 23 MR. GUINEE: Yes, potentially there could be an 24 affect on the chinook salmon. 25 MR. LILLY: And what is that affect, Mr. Guinee? CAPITOL REPORTERS (916) 923-5447 3406 1 MR. GUINEE: Well, again, you know we're speaking 2 about a hypothetical here. And so I think the point that 3 needs to be made is that general variability and diversity 4 of flows leads to stability in the ecosystem, i.e., the 5 Delta and the stream. 6 Specifically as far as your hypothetical example 7 of showing the Yuba River in one scenario of 400 csf and in 8 another scenario at 700 during the month of November that 9 could affect spawning habitat for salmon. 10 MR. LILLY: And that would be the spawning habitat in 11 the Yuba River and in the Feather River above the 12 confluence of the Yuba River; is that correct? 13 MR. GUINEE: Actually, in your hypothetical that is 14 correct, but 2,000 in the Sacramento could affect spawning 15 habitat in Sacramento, 500 in the American could affect 16 spawning habitat in the American. So -- 17 MR. LILLY: Oh, I understand, but my point is I'm 18 asking for whether there's any difference in the affects 19 between scenario one and scenario two. And for all the 20 other rivers all the flows are the same between those two. 21 So whatever the affect is on those other rivers it would be 22 the same between both scenarios; is that correct? 23 MR. GUINEE: In terms of this hypothetical, that's 24 correct. In terms of this hypothetical the differences 25 would be in the Feather and the Yuba. CAPITOL REPORTERS (916) 923-5447 3407 1 MR. LILLY: Okay. And the reason that there would be 2 a difference there is that the flows in those rivers would 3 determine the amount of habitat available for the chinook 4 salmon in those rivers; is that correct? 5 MR. GUINEE: That's correct. 6 MR. LILLY: Okay. So the differences between 7 scenarios one and two would be limited to the Feather River 8 above the confluence and to the Yuba River, but for the 9 rest of the system the affects on salmon would be the same 10 between scenario one and scenario two; is that correct? 11 MR. GUINEE: I guess I'd go back to what Ms. Goude 12 said. Potentially, there could be some differences. I 13 think asking a hypothetical question like you're asking, 14 using her analogy and her testimony three weeks ago of 15 comparing the tributaries to the arteries going to the 16 heart, you're asking -- this hypothetical is like asking a 17 doctor can we constrict the flow of one artery to the heart 18 and expect the heart to stay in good condition, because the 19 other arteries are continuing to bring blood there? So the 20 doctor may acknowledge that, you know, the person might not 21 have a heart attack if one artery is restricted, but the 22 health of that heart definitely goes down. 23 MR. LILLY: But, Mr. Guinee, isn't one of the typical 24 methods of scientific inquiry to keep -- to have a control 25 and then to just change one variable in your experiment to CAPITOL REPORTERS (916) 923-5447 3408 1 see what the affect is of the change of that one variable? 2 MR. GUINEE: That is a method of scientific inquiry 3 with the understanding that there are many different 4 variables that contribute to the life history and the life 5 stages of the fish that you are studying and the stream 6 that you are studying. 7 MR. LILLY: All right. That's precisely the reason 8 you do a control, right, so you can isolate the affects of 9 one variable? 10 MR. GUINEE: Yeah. You may attempt to isolate the 11 affects of one variable in a natural stream or Delta 12 stream, it's very difficult to do, as we've heard testimony 13 previously. 14 MR. LILLY: All right. Well, that's what I'm trying 15 to do here in my hypothetical questions, isolate the 16 affects of changing the proportion of flows between the 17 Feather River and the Yuba River. And let me just make 18 sure we've gotten to the end of this, because I don't think 19 we have. 20 You have testified that clearly if you change the 21 flows in those two rivers it's going to have an affect on 22 the salmon habitat in those two rivers; is that correct? 23 MR. GUINEE: That's correct. The Yuba River flow of 24 700 csf in November would provide a different amount of 25 habitat than a Yuba River flow of 400 csf. CAPITOL REPORTERS (916) 923-5447 3409 1 MR. LILLY: Right. And similarly a Feather River 2 flow of 1300 csf would provide a different habitat than a 3 flow of 1600 csf; is that correct? 4 MR. GUINEE: That's correct. 5 MR. LILLY: Now, my question is: Would there be any 6 other affect on chinook salmon in the system if everything 7 else in the system is kept the same between these two 8 scenarios except for that change in the relative mix of 9 flows between the Feather River and the Yuba River? 10 MR. GUINEE: Again, in terms of the general concept I 11 don't think I can answer specifically one way or another, 12 because there haven't been empirical studies, or possibly 13 it may not be possible to sort out whether salmon 14 originated from the Yuba would have a difficult time 15 finding the Yuba River with only 400 csf going down the 16 Yuba as compared to 700. That salmon may not turn up the 17 Feather/Yuba confluence and even find the Yuba with the 18 lower flow in the Yuba. So, specifically, I couldn't say 19 equivocally. 20 MR. LILLY: All right. So there could be a 21 difference because of the difference in attraction flows; 22 is that correct? 23 MR. GUINEE: Right. That's one example where there 24 could be a difference. 25 MR. LILLY: Okay. Now, can you give any other CAPITOL REPORTERS (916) 923-5447 3410 1 biological basis for differences other than what we've just 2 talked about, about the attraction flows and the obvious 3 difference of habitats in the two rivers? 4 MR. GUINEE: Again, there is a lot of uncertainty as 5 we've talked about in any scientific investigation. So I 6 would go back to what Ms. Goude said when looking at, you 7 know, these flows you look at them as a whole. And to say 8 by reducing the flows in one river doesn't have an affect 9 downstream, I think would be premature. 10 MR. LILLY: So -- but as we sit here today you cannot 11 give any other specific biological basis for that general 12 statement; is that correct? 13 MR. GUINEE: None come to mind at this time. 14 MR. LILLY: All right. Let's go forward to the last 15 anadromous fish here, steelhead. Would any of your answers 16 that you just gave for chinook salmon be different for 17 steelhead in this line of questioning? 18 MR. GUINEE: I think as you're aware steelhead come 19 into the Yuba/Feather River system in November. So under 20 your hypothetical where you're proposing these would be 21 November flows, you could have impacts on steelhead with a 22 reduced flow of 400 in the Yuba as compared to the 700. 23 MR. LILLY: Okay. So once again there could be 24 differences in attraction flows and the habitat in the Yuba 25 River; is that correct? CAPITOL REPORTERS (916) 923-5447 3411 1 MR. GUINEE: That's correct. 2 MR. LILLY: And are you aware of any biological basis 3 for stating that there would be any differences in the 4 system below the confluence of the Feather and the Yuba, 5 again, in the example of comparing these two scenarios? 6 MR. GUINEE: Again, I haven't done an evaluation to 7 show whether those flows would affect steelhead coming up 8 the main stem of the Sacramento and their ability to find 9 the Feather/Yuba River. 10 MR. LILLY: Okay. So, again, the only potential 11 biological issue would be attraction flows; is that 12 correct? 13 MR. GUINEE: That is a potential. And, again, I 14 haven't done that analysis. 15 MR. LILLY: Okay. But other than that, you're not 16 aware of any other biological differences between these two 17 scenarios? 18 MR. GUINEE: None come to mind at this time. 19 C.O. CAFFREY: Mr. Lilly, it's a quarter of 4:00 and 20 we need to break now. Hopefully, that wouldn't do too much 21 violence to your -- 22 MR. LILLY: You noticed a pause in my turning of the 23 page. This is a good point to stop. I probably have about 24 another 15 minutes. 25 C.O. CAFFREY: All right. We will resume tomorrow at CAPITOL REPORTERS (916) 923-5447 3412 1 9:00 a.m. in this room with this panel. And we will 2 continue with Mr. Lilly's cross-examination. Thank you. 3 (The proceedings concluded at 3:45 p.m.) 4 ---oOo--- 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 3413 1 REPORTER'S_CERTIFICATE __________ ___________ 2 3 STATE OF CALIFORNIA ) ) ss. 4 COUNTY OF SACRAMENTO ) 5 I, MARY R. GALLAGHER, certify that I was the 6 Official Court Reporter for the proceedings named herein, 7 and that as such reporter I reported in verbatim shorthand 8 writing those proceedings; that I thereafter caused my 9 shorthand writing to be reduced to typewriting, and the 10 pages numbered 3209 through 3414 herein constitute a 11 complete, true and correct record of the proceedings. 12 IN WITNESS WHEREOF, I have subscribed this 13 certificate at Sacramento, California, on this 20th day of 14 September, 1998. 15 16 ________________________________ MARY R. GALLAGHER, CSR #10749 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 3414