3415 01 02 03 04 05 STATE WATER RESOURCES CONTROL BOARD 06 07 08 09 10 PUBLIC HEARING 11 12 13 13 1998 BAY-DELTA WATER RIGHTS HEARING 14 15 16 17 HELD AT: 18 BONDERSON BUILDING 18 901 P STREET 19 SACRAMENTO, CALIFORNIA 19 20 20 21 21 WEDNESDAY, SEPTEMBER 16, 1998 22 9:00 A.M. 22 23 23 24 24 Reported by: ESTHER F. WIATRE 25 CSR NO. 1564 25 3416 01 APPEARANCES 01 BOARD MEMBERS: 02 02 JOHN CAFFREY, COHEARING OFFICER 03 JAMES STUBCHAER, COHEARING OFFICER 03 JOHN W. BROWN 04 MARY JANE FORSTER 04 MARC DEL PIERO 05 05 STAFF MEMBERS: 06 06 WALTER PETTIT, EXECUTIVE DIRECTOR 07 VICTORIA WHITNEY, CHIEF BAY-DELTA UNIT 07 THOMAS HOWARD, SUPERVISING ENGINEER 08 08 COUNSEL: 09 09 WILLIAM R. ATTWATER, CHIEF COUNSEL 10 BARBARA LEIDIGH 10 11 ---oOo--- 11 12 12 13 13 14 14 15 15 16 16 17 17 18 18 19 19 20 20 21 21 22 22 23 23 24 24 25 25 3417 01 REPRESENTATIVES 01 02 PRINCETON CODORA GLENN IRRIGATION DISTRICT, et al.: 02 03 FROST, DRUP & ATLAS 03 134 West Sycamore Street 04 Willows, California 95988 04 BY: J. MARK ATLAS, ESQ. 05 05 JOINT WATER DISTRICTS: 06 06 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON: 07 P.O. BOX 1679 07 Oroville, California 95965 08 BY: WILLIAM H. BABER III, ESQ. 08 09 CALIFORNIA SPORTFISHING PROTECTION ALLIANCE: 09 10 ROBERT J. BAIOCCHI 10 P.O. Box 357 11 Quincy, California 11 12 BELLA VISTA WATER DISTRICT: 12 13 BRUCE L. BELTON, ESQ. 13 2525 Park Marina Drive, Suite 102 14 Redding, California 96001 14 15 WESTLANDS WATER DISTRICT: 15 16 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 16 400 Capitol Mall, 27th Floor 17 Sacramento, California 95814 17 BY: THOMAS W. BIRMINGHAM, ESQ. 18 and 18 AMELIA THOMAS, ESQ. 19 19 THE BAY INSTITUTE OF SAN FRANCISCO: 20 20 GARY BOBKER 21 55 Shaver Street, Suite 330 21 San Rafael, California 94901 22 22 CITY OF ANTIOCH, et al.: 23 23 FREDERICK BOLD, JR., ESQ. 24 1201 California Street, Suite 1303 24 San Francisco, California 94109 25 25 3418 01 REPRESENTATIVES 01 02 LEAGUE OF WOMEN VOTERS: 02 03 ROBERTA BORGONOVO 03 2480 Union Street 04 San Francisco, California 94123 04 05 UNITED STATES DEPARTMENT OF THE INTERIOR: 05 06 OFFICE OF THE SOLICITOR 06 2800 Cottage Way, Room E1712 07 Sacramento, California 95825 07 BY: ALF W. BRANDT, ESQ. 08 CALIFORNIA URBAN WATER AGENCIES: 08 09 BYRON M. BUCK 09 455 Capitol Mall, Suite 705 10 Sacramento, California 95814 10 11 RANCHO MURIETA COMMUNITY SERVICES DISTRICT: 11 12 MCDONOUGH, HOLLAND & ALLEN 12 555 Capitol Mall, 9th Floor 13 Sacramento, California 95814 13 BY: VIRGINIA A. CAHILL, ESQ. 14 14 CALIFORNIA DEPARTMENT OF FISH AND GAME: 15 15 OFFICE OF ATTORNEY GENERAL 16 1300 I Street, Suite 1101 16 Sacramento, California 95814 17 BY: MATTHEW CAMPBELL, ESQ. 17 18 NATURAL RESOURCES DEFENSE COUNCIL: 18 19 HAMILTON CANDEE, ESQ. 19 71 Stevenson Street 20 San Francisco, California 94105 20 21 ARVIN-EDISON WATER STORAGE DISTRICT, et al.: 21 22 DOOLEY HERR & WILLIAMS 22 3500 West Mineral King Avenue, Suite C 23 Visalia, California 93291 23 BY: DANIEL M. DOOLEY, ESQ. 24 24 25 25 3419 01 REPRESENTATIVES 01 02 SACRAMENTO MUNICIPAL UTILITY DISTRICT: 02 03 LESLIE A. DUNSWORTH, ESQ. 03 6201 S Street 04 Sacramento, California 95817 04 05 SOUTH SAN JOAQUIN IRRIGATION DISTRICT, et al.: 05 06 BRAY, GEIGER, RUDQUIST & NUSS 06 311 East Main Street, 4th Floor 07 Stockton, California 95202 07 BY: STEVEN P. EMRICK, ESQ. 08 08 EAST BAY MUNICIPAL UTILITY DISTRICT: 09 09 EBMUD OFFICE OF GENERAL COUNSEL 10 375 Eleventh Street 10 Oakland, California 94623 11 BY: FRED S. ETHERIDGE, ESQ. 11 12 GOLDEN GATE AUDUBON SOCIETY: 12 13 ARTHUR FEINSTEIN 13 2530 San Pablo Avenue, Suite G 14 Berkeley, California 94702 14 15 CONAWAY CONSERVANCY GROUP: 15 16 UREMOVIC & FELGER 16 P.O. Box 5654 17 Fresno, California 93755 17 BY: WARREN P. FELGER, ESQ. 18 18 THOMES CREEK WATER ASSOCIATION: 19 19 THOMES CREEK WATERSHED ASSOCIATION 20 P.O. Box 2365 20 Flournoy, California 96029 21 BY: LOIS FLYNNE 21 22 COURT APPOINTED REPS OF WESTLANDS WD AREA 1, et al.: 22 23 LAW OFFICES OF SMILAND & KHACHIGIAN 23 601 West Fifth Street, Seventh Floor 24 Los Angeles, California 90075 24 BY: CHRISTOPHER G. FOSTER, ESQ. 25 25 3420 01 REPRESENTATIVES 01 02 CITY AND COUNTY OF SAN FRANCISCO: 02 03 OFFICE OF THE CITY ATTORNEY 03 1390 Market Street, Sixth Floor 04 San Francisco, California 94102 04 BY: DONN W. FURMAN, ESQ. 05 05 CAMP FAR WEST IRRIGATION DISTRICT, et al.: 06 06 DANIEL F. GALLERY, ESQ. 07 926 J Street, Suite 505 07 Sacramento, California 95814 08 08 BOSTON RANCH COMPANY, et al.: 09 09 J.B. BOSWELL COMPANY 10 101 West Walnut Street 10 Pasadena, California 91103 11 BY: EDWARD G. GIERMANN 11 12 SAN JOAQUIN RIVER GROUP AUTHORITY, et al.: 12 13 GRIFFTH, MASUDA & GODWIN 13 517 East Olive Street 14 Turlock, California 95381 14 BY: ARTHUR F. GODWIN, ESQ. 15 15 NORTHERN CALIFORNIA WATER ASSOCIATION: 16 16 RICHARD GOLB 17 455 Capitol Mall, Suite 335 17 Sacramento, California 95814 18 18 PLACER COUNTY WATER AGENCY, et al.: 19 19 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 20 400 Capitol Mall, 27th Floor 20 Sacramento, California 95814 21 BY: JANET GOLDSMITH, ESQ. 21 22 ENVIRONMENTAL DEFENSE FUND: 22 23 DANIEL SUYEYASU, ESQ. 23 and 24 THOMAS J. GRAFF, ESQ. 24 5655 College Avenue, Suite 304 25 Oakland, California 94618 25 3421 01 REPRESENTATIVES 01 02 CALAVERAS COUNTY WATER DISTRICT: 02 03 SIMON GRANVILLE 03 P.O. Box 846 04 San Andreas, California 95249 04 05 CHOWCHILLA WATER DISTRICT, et al.: 05 06 GREEN, GREEN & RIGBY 06 P.O. Box 1019 07 Madera, California 93639 07 BY: DENSLOW GREEN, ESQ. 08 08 CALIFORNIA FARM BUREAU FEDERATION: 09 09 DAVID J. GUY, ESQ. 10 2300 River Plaza Drive 10 Sacramento, California 95833 11 11 SANTA CLARA VALLEY WATER DISTRICT: 12 12 MORRISON & FORESTER 13 755 Page Mill Road 13 Palo Alto, California 94303 14 BY: KEVIN T. HAROFF, ESQ. 14 15 CITY OF SHASTA LAKE: 15 16 ALAN N. HARVEY 16 P.O. Box 777 17 Shasta Lake, California 96019 17 18 COUNTY OF STANISLAUS: 18 19 MICHAEL G. HEATON, ESQ. 19 926 J Street 20 Sacramento, California 95814 20 21 GORRILL LAND COMPANY: 21 22 GORRILL LAND COMPANY 22 P.O. Box 427 23 Durham, California 95938 23 BY: DON HEFFREN 24 24 25 25 3422 01 REPRESENTATIVES 01 02 SOUTH DELTA WATER AGENCY: 02 03 JOHN HERRICK, ESQ. 03 3031 West March Lane, Suite 332 East 04 Stockton, California 95267 04 05 COUNTY OF GLENN: 05 06 NORMAN Y. HERRING 06 525 West Sycamore Street 07 Willows, California 95988 07 08 REGIONAL COUNCIL OF RURAL COUNTIES: 08 09 MICHAEL B. JACKSON, ESQ. 09 1020 Twelfth Street, Suite 400 10 Sacramento, California 95814 10 11 DEER CREEK WATERSHED CONSERVANCY: 11 12 JULIE KELLY 12 P.O. Box 307 13 Vina, California 96092 13 14 DELTA TRIBUTARY AGENCIES COMMITTEE: 14 15 MODESTO IRRIGATION DISTRICT 15 P.O. Box 4060 16 Modesto, California 95352 16 BY: BILL KETSCHER 17 17 SAVE THE SAN FRANCISCO BAY ASSOCIATION: 18 18 SAVE THE BAY 19 1736 Franklin Street 19 Oakland, California 94612 20 BY: CYNTHIA L. KOEHLER, ESQ. 20 21 BATTLE CREEK WATERSHED LANDOWNERS: 21 22 BATTLE CREEK WATERSHED CONSERVANCY 22 P.O. Box 606 23 Manton, California 96059 23 24 24 25 25 3423 01 REPRESENTATIVES 01 02 BUTTE SINK WATERFOWL ASSOCIATION, et al.: 02 03 MARTHA H. LENNIHAN, ESQ. 03 455 Capitol Mall, Suite 300 04 Sacramento, California 95814 04 05 CITY OF YUBA CITY: 05 06 WILLIAM P. LEWIS 06 1201 Civic Center Drive 07 Yuba City 95993 07 08 BROWNS VALLEY IRRIGATION DISTRICT, et al.: 08 09 BARTKEWICZ, KRONICK & SHANAHAN 09 1011 22nd Street, Suite 100 10 Sacramento, California 95816 10 BY: ALAN B. LILLY, ESQ. 11 11 CONTRA COSTA WATER DISTRICT: 12 12 BOLD, POLISNER, MADDOW, NELSON & JUDSON 13 500 Ygnacio Valley Road, Suite 325 13 Walnut Creek, California 94596 14 BY: ROBERT B. MADDOW, ESQ. 14 15 GRASSLAND WATER DISTRICT: 15 16 DON MARCIOCHI 16 22759 South Mercey Springs Road 17 Los Banos, California 93635 17 18 SAN LUIS CANAL COMPANY: 18 19 FLANNIGAN, MASON, ROBBINS & GNASS 19 3351 North M Street, Suite 100 20 Merced, California 95344 20 BY: MICHAEL L. MASON, ESQ. 21 21 STONY CREEK BUSINESS AND LAND OWNERS COALITION: 22 22 R.W. MCCOMAS 23 4150 County Road K 23 Orland, California 95963 24 24 25 25 3424 01 REPRESENTATIVES 01 02 TRI-DAM POWER AUTHORITY: 02 03 TUOLUMNE UTILITIES DISTRICT 03 P.O. Box 3728 04 Sonora, California 95730 04 BY: TIM MCCULLOUGH 05 05 DELANO-EARLIMART IRRIGATION DISTRICT, et al.: 06 06 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 07 P.O. Box 1679 07 Oroville, California 95965 08 BY: JEFFREY A. MEITH, ESQ. 08 09 HUMANE FARMING ASSOCIATION: 09 10 BRADLEY S. MILLER 10 1550 California Street, Suite 6 11 San Francisco, California 94109 11 12 CORDUA IRRIGATION DISTRICT, et al.: 12 13 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 13 P.O. Box 1679 14 Oroville, California 95965 14 BY: PAUL R. MINASIAN, ESQ. 15 15 EL DORADO COUNTY WATER AGENCY: 16 16 DE CUIR & SOMACH 17 400 Capitol Mall, Suite 1900 17 Sacramento, California 95814 18 BY: DONALD B. MOONEY, ESQ. 18 19 GLENN COUNTY FARM BUREAU: 19 20 STEVE MORA 20 501 Walker Street 21 Orland, California 95963 21 22 MODESTO IRRIGATION DISTRICT: 22 23 JOEL MOSKOWITZ 23 P.O. Box 4060 24 Modesto, California 95352 24 25 25 3425 01 REPRESENTATIVES 01 02 PACIFIC GAS & ELECTRIC: 02 03 RICHARD H. MOSS, ESQ. 03 P.O. Box 7442 04 San Francisco, California 94120 04 05 CENTRAL DELTA WATER AGENCY, et al.: 05 06 NOMELLINI, GRILLI & MCDANIEL 06 P.O. Box 1461 07 Stockton, California 95201 07 BY: DANTE JOHN NOMELLINI, ESQ. 08 and 08 DANTE JOHN NOMELLINI, JR., ESQ. 09 09 TULARE LAKE BASIN WATER STORAGE UNIT: 10 10 MICHAEL NORDSTROM 11 1100 Whitney Avenue 11 Corcoran, California 93212 12 12 AKIN RANCH, et al.: 13 13 DOWNEY, BRAND, SEYMOUR & ROHWER 14 555 Capitol Mall, 10th Floor 14 Sacramento, California 95814 15 BY: KEVIN M. O'BRIEN, ESQ. 15 16 OAKDALE IRRIGATION DISTRICT: 16 17 O'LAUGHLIN & PARIS 17 870 Manzanita Court, Suite B 18 Chico, California 95926 18 BY: TIM O'LAUGHLIN, ESQ. 19 19 SIERRA CLUB: 20 20 JENNA OLSEN 21 85 Second Street, 2nd Floor 21 San Francisco, California 94105 22 22 YOLO COUNTY BOARD OF SUPERVISORS: 23 23 LYNNEL POLLOCK 24 625 Court Street 24 Woodland, California 95695 25 25 3426 01 REPRESENTATIVES 01 02 PATRICK PORGENS AND ASSOCIATES: 02 03 PATRICK PORGENS 03 P.O. Box 60940 04 Sacramento, California 95860 04 05 BROADVIEW WATER DISTRICT, et al.: 05 06 DIANE RATHMANN 06 07 FRIENDS OF THE RIVER: 07 08 BETSY REIFSNIDER 08 128 J Street, 2nd Floor 09 Sacramento, California 95814 09 10 MERCED IRRIGATION DISTRICT: 10 11 FLANAGAN, MASON, ROBBINS & GNASS 11 P.O. Box 2067 12 Merced, California 95344 12 BY: KENNETH M. ROBBINS, ESQ. 13 13 CENTRAL SAN JOAQUIN WATER CONSERVATION DISTRICT: 14 14 REID W. ROBERTS, ESQ. 15 311 East Main Street, Suite 202 15 Stockton, California 95202 16 16 METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA: 17 17 JAMES F. ROBERTS 18 P.O. Box 54153 18 Los Angeles, California 90054 19 19 SACRAMENTO AREA WATER FORUM: 20 20 CITY OF SACRAMENTO 21 980 9th Street, 10th Floor 21 Sacramento, California 95814 22 BY: JOSEPH ROBINSON, ESQ. 22 23 23 24 24 25 25 3427 01 REPRESENTATIVES 01 02 TUOLUMNE RIVER PRESERVATION TRUST: 02 03 NATURAL HERITAGE INSTITUTE 03 114 Sansome Street, Suite 1200 04 San Francisco, California 94194 04 BY: RICHARD ROOS-COLLINS, ESQ. 05 05 CALIFORNIA DEPARTMENT OF WATER RESOURCES: 06 06 DAVID SANDINO, ESQ. 07 CATHY CROTHERS, ESQ. 07 P.O. Box 942836 08 Sacramento, California 94236 08 09 FRIANT WATER USERS AUTHORITY: 09 10 GARY W. SAWYERS, ESQ. 10 575 East Alluvial, Suite 101 11 Fresno, California 93720 11 12 KERN COUNTY WATER AGENCY: 12 13 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 13 400 Capitol Mall, 27th Floor 14 Sacramento, California 95814 14 BY: CLIFFORD W. SCHULZ, ESQ. 15 15 SAN JOAQUIN RIVER EXCHANGE CONTRACTORS: 16 16 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON: 17 P.O. Box 1679 17 Oroville, California 95965 18 BY: MICHAEL V. SEXTON, ESQ. 18 19 SAN JOAQUIN COUNTY: 19 20 NEUMILLER & BEARDSLEE 20 P.O. Box 20 21 Stockton, California 95203 21 BY: THOMAS J. SHEPHARD, SR., ESQ. 22 22 CITY OF STOCKTON: 23 23 DE CUIR & SOMACH 24 400 Capitol Mall, Suite 1900 24 Sacramento, California 95814 25 BY: PAUL S. SIMMONS, ESQ. 25 3428 01 REPRESENTATIVES 01 02 ORLAND UNIT WATER USERS' ASSOCIATION: 02 03 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 03 P.O. Box 1679 04 Oroville, California 95965 04 BY: M. ANTHONY SOARES, ESQ. 05 05 GLENN-COLUSA IRRIGATION DISTRICT: 06 06 DE CUIR & SOMACH 07 400 Capitol Mall, Suite 1900 07 Sacramento, California 95814 08 BY: STUART L. SOMACH, ESQ. 08 09 NORTH SAN JOAQUIN WATER CONSERVATION DISTRICT: 09 10 JAMES F. SORENSEN CONSULTING CIVIL ENGINEER, INC. 10 209 South Locust Street 11 Visalia, California 93279 11 BY: JAMES F. SORENSEN 12 12 PARADISE IRRIGATION DISTRICT: 13 13 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 14 P.O. Box 1679 14 Oroville, California 95695 15 BY: WILLIAM H. SPRUANCE, ESQ. 15 16 COUNTY OF COLUSA: 16 17 DONALD F. STANTON, ESQ. 17 1213 Market Street 18 Colusa, California 95932 18 19 COUNTY OF TRINITY: 19 20 COUNTY OF TRINITY - NATURAL RESOURCES 20 P.O. Box 156 21 Hayfork, California 96041 21 BY: TOM STOKELY 22 22 CITY OF REDDING: 23 23 JEFFERY J. SWANSON, ESQ. 24 2515 Park Marina Drive, Suite 102 24 Redding, California 96001 25 25 3429 01 REPRESENTATIVES 01 02 TULARE IRRIGATION DISTRICT: 02 03 TEHAMA COUNTY RESOURCE CONSERVATION DISTRICT 03 2 Sutter Street, Suite D 04 Red Bluff, California 96080 04 BY: ERNEST E. WHITE 05 05 STATE WATER CONTRACTORS: 06 06 BEST BEST & KREIGER 07 P.O. Box 1028 07 Riverside, California 92502 08 BY: ERIC GARNER, ESQ. 08 09 COUNTY OF TEHAMA, et al.: 09 10 COUNTY OF TEHAMA BOARD OF SUPERVISORS: 10 P.O. Box 250 11 Red Bluff, California 96080 11 BY: CHARLES H. WILLARD 12 12 MOUNTAIN COUNTIES WATER RESOURCES ASSOCIATION: 13 13 CHRISTOPHER D. WILLIAMS 14 P.O. Box 667 14 San Andreas, California 95249 15 15 JACKSON VALLEY IRRIGATION DISTRICT: 16 16 HENRY WILLY 17 6755 Lake Amador Drive 17 Ione, California 95640 18 18 SOLANO COUNTY WATER AGENCY, et al.: 19 19 HERUM, CRABTREE, DYER, ZOLEZZI & TERPSTRA 20 2291 West March Lane, S.B.100 20 Stockton, California 95207 21 BY: JEANNE M. ZOLEZZI, ESQ. 21 22 ---oOo--- 22 23 23 24 24 25 25 3430 01 INDEX 01 PAGE 02 OPENING OF HEARING 3431 02 AFTERNOON SESSION 3555 03 03 CITY OF WEST SACRAMENTO: 04 DIRECT EXAMINATION: 04 BY MS. GOLDSMITH 3432 05 CROSS-EXAMINATION: 05 BY MR. SANDINO 3438 06 BY MR. BRANDT 3439 06 07 DEPARTMENT OF THE INTERIOR: 07 PANEL: 08 CAY GOUDE 08 ROGER GUINEE 09 CONTINUED CROSS-EXAMINATION: 09 BY MR. LILLY 3441 10 BY MR. CAMPBELL 3448 10 BY MR. JOHNSTON 3450 11 BY MR. MINASIAN 3454 11 BY MR. SUYEYASU 3471 12 BY MR. HERRICK 3475 12 BY MR. ETHERIDGE 3496 13 BY BOARD MEMBERS 3535 13 REBUTTAL: 14 DIRECT EXAMINATION: 14 BY MR. MADDOW 3555 15 CROSS-EXAMINATION: 15 BY MR. BIRMINGHAM 3568 16 BY MR. ETHERIDGE 3578 16 REDIRECT EXAMINATION: 17 BY MR. MADDOW 3594 17 RECROSS-EXAMINATION: 18 BY MR. BIRMINGHAM 3598 18 BY MR. ETHERIDGE 3607 19 BY BOARD MEMBERS 3612 19 20 ---oOo--- 21 22 23 24 25 3431 01 SACRAMENTO, CALIFORNIA 02 WEDNESDAY, SEPTEMBER 16, 1998 03 ---oOo--- 04 C.O. CAFFREY: Let's resume the hearing. 05 Mr. Brandt, is your panel here? 06 MR. BRANDT: Yes, but I think we were going to take 07 West Sacramento. 08 C.O. CAFFREY: One thought I had was perhaps finish Mr. 09 Lilly, just so not to break his train of thought too much. 10 Is Mr. Lilly in the room? 11 MR. LILLY: Yes. Either way is fine. 12 C.O. CAFFREY: Is that all right with you, Mr. Lilly? 13 We will go to Ms. Goldsmith, then, and resume with 14 your cross-examination right after the West Sac case in 15 chief. 16 Good morning, Ms. Goldsmith. 17 MS. GOLDSMITH: Good morning, Mr. Chairman. 18 I represent the City of West Sacramento, and this is 19 our case in chief. It is in support of the stipulation with 20 the Department of Water Resources for the North Delta Water 21 Agency. 22 C.O. CAFFREY: Is this a joint presentation with Mr. 23 Sandino and Mr. Dwight Russell, by any chance? 24 MS. GOLDSMITH: I don't think so. I think it might 25 have been if we had managed to get ourselves all together. 3432 01 Since I am tagging in, I think it is a separate 02 presentation. 03 C.O. CAFFREY: Mr. Sandino is behind you, although I 04 can't see him. 05 Does that meet with your liking, Mr. Sandino? 06 MR. SANDINO: Yes, this is fine. 07 C.O. CAFFREY: Thank you, sir. 08 MS. GOLDSMITH: I call James Yost as our witness. 09 C.O. CAFFREY: Has Mr. Yost taken the oath? 10 MS. GOLDSMITH: Mr. Yost has not been sworn. 11 (Oath administered by C.O. Caffrey.) 12 ---oOo--- 13 DIRECT EXAMINATION OF CITY OF WEST SACRAMENTO 14 BY MS. GOLDSMITH 15 MS. GOLDSMITH: Mr. Yost, would you please give your 16 name and address. 17 MR. YOST: My name is James Yost, and I reside in Davis 18 at 2520 Regatta Court. 19 MS. GOLDSMITH: And your professional address, 20 professional affiliation. 21 MR. YOST: 1260 Lake Boulevard in Davis. I am a 22 principal of West Yost and Associates. 23 MS. GOLDSMITH: Do you have a copy of City of West 24 Sacramento's WS-2? 25 MR. YOST: Yes, I do. 3433 01 MS. GOLDSMITH: Is that a correct statement of your 02 resume? 03 MR. YOST: Yes. 04 MS. GOLDSMITH: And qualifications? 05 MR. YOST: Yes, it is. 06 MS. GOLDSMITH: Would you briefly summarize those 07 qualifications officially as the relate to the City of West 08 Sacramento. 09 MR. YOST: I am a registered professional engineer with 10 26-years' experience in California. Served primarily as a 11 water resources consultant. We began working with the City 12 of West Sacramento in 1993 when we prepared their water 13 master plan and looked at their water supply and water 14 demand and water entitlements. And I was retained in 1997 15 by the City to assist in other water rights and water supply 16 issues. 17 MS. GOLDSMITH: So you are familiar with the water 18 supply of West Sacramento? 19 MR. YOST: Yes, I am. 20 MS. GOLDSMITH: On a personal level? 21 MR. YOST: Yes. 22 MS. GOLDSMITH: Do you have a copy of WS-3? 23 MR. YOST: Yes, I do. 24 MS. GOLDSMITH: Can I have the screen, please. 25 You have just put on the overhead screen a map of the 3434 01 City of West Sacramento, WS-3; is that right? 02 MR. YOST: That's correct. 03 MS. GOLDSMITH: Do you have a copy of Exhibit WS-1? 04 MR. YOST: Yes, I do. 05 MS. GOLDMSITH: Is that a correct statement of your 06 testimony? 07 MR. YOST: Yes. 08 MS. GOLDSMITH: Is there a correction in it, though? 09 MR. YOST: Yes. I believe Item 9 should be NDWA 10 Exhibit Number 10. 11 MS. GOLDSMITH: Instead of Exhibit 9 as stated. That 12 is the Memorandum of Understanding between the North Delta 13 Water Agency and the State Department of Water Resources 14 that was presented by the North Delta Water Agency in these 15 proceedings; is that right? 16 MR. YOST: Yes. 17 MS. GOLDSMITH: Would you please summarize your 18 testimony, and you could refer to the map, WS-3. 19 MR. YOST: This is a map that shows the City of West 20 Sacramento located right across the Sacramento River from 21 the City of Sacramento. West Sacramento has about 30,000 22 residents, well-developed 23 commercial-industrial-transportation-related economy. They 24 divert currently about 11,000 acre-feet of water from the 25 Sacramento River, and their projected build-out demand is 3435 01 about 28,000 acre-feet. 02 West Sacramento has an appropriative water right, 03 Application 25616, and Permit 18150. Under this water 04 right, they can divert at the Bright Bend Water Treatment 05 Plant, which is right here, up to 18,350 acre-feet per year. 06 They have a maximum diversion rate of about 62 cfs, which is 07 about 40 mgd, and they have no entitlement to divert under 08 this right in July or August. 09 They also have a -- and the place of use of this water 10 right is the entire city limits, which its outer boundary is 11 shown on this map. They also have a contract with the 12 Bureau of Reclamation, Contract Number 0-07-20-W0187. This 13 is a 40-year agreement. It provides for a total annual 14 diversion by the City in combination with their water right 15 of 23,600 acre-feet. 16 Under this agreement, the City pays a minimum purchase 17 price for water, whether they use it or not, and that has 18 gotten up to the range of about 165 or $170,000 a year. The 19 place of use of Bureau contract water is also coincident 20 with the city limits. 21 The shaded area is the portion of the City of West 22 Sacramento which lies with the North Delta Water Agency. 23 The boundary is the Union Pacific railroad tracks. So, 24 there is a portion of the city that lies outside the North 25 Delta Water Agency. 3436 01 MR. BIRMINGHAM: Excuse me, Mr. Chairman. I wonder if 02 the record could reflect that Mr. Yost is referring to the 03 shaded area on the Exhibit WS-3? 04 C.O. CAFFREY: Yes. Let the record so reflect as Mr. 05 Birmingham has described. 06 MR. YOST: The agreement between the North Delta Water 07 Agency and DWR provide indemnity from shortages to agencies 08 within its boundaries, and this includes the City of West 09 Sacramento. The City pays annual fees to the North Delta 10 Water Agency for this entitlement in excess of $170,000 a 11 year; and all the city surface water is diverted from the 12 Sacramento River at the Bright Bend Water Treatment Plant. 13 The city also is underlain by a groundwater aquifer, 14 and they do have the ability to pump groundwater. The 15 groundwater is relatively poor quality and requires 16 extensive treatment. As of last October, the City had 17 stopped all diversions, all pumping of groundwater, and is 18 now relying entirely on surface water diversions. But the 19 groundwater provides an emergency backup supply for the 20 city. If, in fact, they had to go to extensive use of 21 groundwater, however, they would likely have to spend 22 considerable money to upgrade the treatment facilities that 23 they have in place for groundwater. 24 MS. GOLDSMITH: Thank you. 25 C.O. CAFFREY: That completes your case in chief? 3437 01 MS. GOLDSMITH: That completes the direct. 02 C.O. CAFFREY: Thank you. 03 Mr. Brown. 04 MEMBER BROWN: What is the problem with the 05 groundwater that you don't use it? 06 MR. YOST: It has high iron, manganese, H2S, high TDS. 07 They had well treatment units to remove the iron and 08 manganese and the hydrogen sulfide. 09 MEMBER BROWN: Hydrogen Sulfide? 10 MR. YOST: Yes. It is actually a bit warm. 11 MEMBER BROWN: How many wells do they have? 12 MR. YOST: I think you can see they have a groundwater 13 treatment here which is 2 mgd, and they also have a 14 groundwater treatment plant here which is 3 mgd. They had 15 -- this used to be the old East Yolo Community Services 16 District. It was entirely on groundwater at one time. 17 MEMBER BROWN: Are they shallow wells? 18 MR. YOST: I don't know for sure. I expect they 19 probably completed that in the 2- to 400 foot range, 20 something like that. 21 MR. NOMELLINI: Too deep. 22 MEMBER BROWN: Thank you. 23 C.O. CAFFREY: Do any of the parties wish to 24 cross-examine this witness? 25 Mr. Sandino. 3438 01 Anyone else? 02 Mr. Brandt. 03 Did I get -- was there more than that? 04 Mr. Sandino and Mr. Brandt. 05 ---oOo--- 06 CROSS-EXAMINATION OF CITY OF WEST SACRAMENTO 07 BY DEPARTMENT OF WATER RESOURCES 08 BY MR. SANDINO 09 MR. SANDINO: David Sandino for the Department of Water 10 Resources. Mr. Yost, I just have a couple questions for you 11 to try to clarify the scope of the DWR-North Delta Water 12 Agency stipulation. 13 If you would refer again to West Sacramento Exhibit 3 14 up on the screen, is the shaded area the only part of West 15 Sacramento that overlaps the boundaries of the North Delta 16 Water Agency? 17 MR. YOST: Yes, it is. 18 MR. SANDINO: Is that shaded area the only area in 19 which the residents of West Sacramento pay assessments to 20 North Delta Water Agency? 21 MR. YOST: Yes. 22 MR. SANDINO: Are you familiar with the MOU between DWR 23 and North Delta Water Agency which has been labeled as North 24 Delta Water Agency Exhibit 10? 25 MR. YOST: Yes, I am. 3439 01 MR. SANDINO: Is it your understanding that this MOU 02 only applies to the area of West Sacramento that falls 03 within the boundaries of the North Delta Water Agency? 04 MR. YOST: Yes. 05 MR. SANDINO: That is it. 06 C.O. CAFFREY: Thank you, Mr. Sandino. 07 Mr. Brandt. 08 ---oOo--- 09 CROSS-EXAMINATION OF CITY OF WEST SACRAMENTO 10 BY DEPARTMENT OF THE INTERIOR 11 BY MR. BRANDT 12 MR. BRANDT: Mr. Yost, I would like to draw your 13 attention to your testimony, Paragraph 10 in particular. 14 The last clause, which says, drawing from the earlier part, 15 City's position that the State Water Resources Control Board 16 lacks authority to modify the City's appropriate water right 17 permit, 18150, for the purposes of attaining additional 18 flows for the implementation of the 1995 Water Quality 19 Control Plan. 20 Is that your professional opinion or -- 21 MR. YOST: That is a position of the City of West 22 Sacramento, arrived at with their legal counsel. 23 MR. BRANDT: That is not necessarily your opinion; is 24 that a fact? 25 MR. YOST: No, it is not. 3440 01 MR. BRANDT: And there is no suggestion or implication 02 that somehow that position suggests that you are exempt from 03 any shortage provisions in your CVP contract; is that 04 correct? 05 MR. YOST: I believe that is correct, but I am not an 06 attorney. I am an engineer, so. 07 MR. BRANDT: That is fine. 08 Thank you. 09 C.O. CAFFREY: Thank you, Mr. Brandt. 10 Do staff have any questions of the witness? 11 MR. HOWARD: No questions for the witness. 12 C.O. CAFFREY: Questions from the Board members? 13 Any redirect, Ms. Goldsmith? 14 MS. GOLDSMITH: No redirect. That is our case in 15 chief. 16 C.O. CAFFREY: Thank you very much. 17 Do you now wish to offer your exhibits into the record? 18 MS. GOLDSMITH: Yes. I would offer WS-1, WS-2 and WS-3 19 into the record as evidence. 20 C.O. CAFFREY: Does that synchronize with our records, 21 staff? 22 MS. WHITNEY: Yes. 23 C.O. CAFFREY: Are there any objections to accepting 24 those evidentiary exhibits into the record on the part of 25 the other parties? 3441 01 Hearing and seeing no objections, they are accepted. 02 Thank you, Mr. Yost. 03 Thank you, Ms. Goldsmith. 04 That completes the case in chief for West Sacramento. 05 We will now return to Mr. Lilly's cross-examination of the 06 Department of the Interior panel. 07 Mr. Brandt is retiring to the coffee room to find 08 them. There is Ms. Goude. Looking for Mr. Guinee. 09 MR. LILLY: He was just here a minute ago. 10 C.O. CAFFREY: Off the record for a moment. 11 (Break taken.) 12 C.O. CAFFREY: We are back on the record. 13 Good morning, Mr. Lilly. 14 ---oOo--- 15 CONTINUED CROSS-EXAMINATION OF DEPARTMENT OF THE INTERIOR 16 BY YUBA COUNTY WATER AGENCY & YUBA COUNTY WATER DISTRICT 17 BY MR. LILLY 18 MR. LILLY: Thank you, Mr. Caffrey. 19 Mr. Guinee, I have a couple of follow-up questions 20 regarding spring-run salmon. I believe in response to 21 cross-examination questions from other attorneys you 22 testified that some spring-run salmon historically occurred 23 in the Yuba River system; is that right? 24 MR. GUINEE: That's correct. 25 MR. LILLY: I think you also testified that the 3442 01 historical run of spring-run chinook salmon in the Yuba 02 River was blocked by the construction of dams; is that 03 correct? 04 MR. GUINEE: That was one of the factors that 05 contributed to the decline of spring-run there. 06 MR. LILLY: Isn't it actually true that the 07 construction of dams entirely blocked the historical habitat 08 of spring-run on the Yuba River? 09 MR. GUINEE: Yeah, that is correct. 10 MR. LILLY: Which dams, dam or dams, was it or were it 11 that blocked that historical spring-run salmon run? 12 MR. GUINEE: I don't remember the exact dates and 13 timing of the construction of dams, but Englebright Dam now 14 is a barrier to any spring-run habitat and New Bullards Bar 15 Dam as well. 16 MR. LILLY: Wait a minute here. Let's talk about New 17 Bullards Bar. Can any fish get up to New Bullards Bar Dam? 18 MR. GUINEE: Presently chinook salmon cannot. It is 19 habitat for trout. 20 MR. LILLY: I was focusing on spring-run salmon. 21 Spring-run salmon is totally blocked by Englebright Dam; is 22 that correct? 23 MR. GUINEE: That's correct. 24 MR. LILLY: Englebright Dam is downstream of New 25 Bullards Bar Dam; correct? 3443 01 MR. GUINEE: That's correct. 02 MR. LILLY: Englebright Dam was built many years before 03 New Bullards Bar Dam, correct? 04 MR. GUINEE: I am not sure the exact timing of the 05 construction of both dams. 06 MR. LILLY: So, you don't know which one was built 07 first? 08 MR. GUINEE: I'm pretty sure that Engelbright was built 09 before New Bullards Bar, but I don't remember the dates. 10 MR. LILLY: But if Englebright was built before New 11 Bullards Bar Dam, then New Bullards Bar Dam had no further 12 affect on the spring-run salmon habitat, did it? 13 MR. GUINEE: I guess, yes, that would be correct. 14 MR. LILLY: Who built Englebright Dam, Mr. Guinee? 15 MR. GUINEE: My recollection is the Corps of Engineers. 16 MR. LILLY: That would be an agency of the United 17 States Government, then? 18 MR. GUINEE: Right. 19 MR. LILLY: Could you examine your Exhibit 9-C, 20 please. 21 MR. GUINEE: Yes, I can. 22 MR. LILLY: Just tell me when you have that in front of 23 you. 24 MR. GUINEE: Actually, I have an overhead. Should I 25 put it up? 3444 01 MR. LILLY: Well, I don't think we need to. If you 02 have the paper, I was just going to ask a couple questions. 03 But if you want, go ahead. 04 MR. GUINEE: It might help. 05 MR. LILLY: Go ahead and put it up. That is fine. 06 Now, Mr. Guinee -- 07 MR. BRANDT: I think we should specify just so we have 08 clear for the record what is up there. This is a exhibit -- 09 MR. LILLY: I'll go ahead and make the record. I 10 thought it was clear from my prior question. 11 Mr. Guinee, you have put Exhibit 9-C on the overhead 12 projector? 13 MR. GUINEE: Yes, I have. 14 MR. LILLY: Thank you. 15 What was your purpose in submitting Exhibit 9-C for 16 this Phase IV of these proceedings? 17 MR. GUINEE: My purpose, as I said in my testimony, was 18 to compare the current minimum flow schedule for the Yuba 19 River with the Alternative 5 flows found in the Board's 20 Draft EIR. Also I put the curves up there for the 21 unimpaired flows as well as the flows recommended by the 22 Department of Fish and Game and Fish and Wildlife Service at 23 the 1992 State Board hearings, mainly to show that the 24 Board's draft and Alternative 5, as well as Fish and Game 25 and Fish and Wildlife Service recommendations, tend to mimic 3445 01 the natural hydrograph where you see increasing flows 02 following somewhat similar patterns in increasing flows in 03 the hydrograph, whereas the existing minimum flows are a 04 flat line of about 245 cfs during springtime. 05 MR. LILLY: So, basically this exhibit addresses 06 in-stream flows in the lower Yuba River; is that correct? 07 MR. GUINEE: Right. The thing to take from this is to 08 show that the flows in the Yuba River can contribute to 09 meeting the Water Quality Control Plan and the narrative 10 salmon objective if they are released in a similar way as 11 the Board's Alternative 5 or Fish and Game, Fish and 12 Wildlife Services recommendations for 1992. 13 MR. LILLY: So, basically, this exhibit addresses 14 salmon and fish habitat in the lower Yuba River; is that 15 correct? 16 MR. GUINEE: It actually does both. It addresses 17 habitat in the Yuba River as well as a contribution to 18 meeting the Water Quality Control Plan flows and water 19 quality objectives. 20 MR. LILLY: This would be under the ecological fair 21 share theory that you described yesterday? 22 MR. GUINEE: It is consistent with that, correct. 23 MR. LILLY: Now, are you aware that no Yuba River 24 settlement agreement is being offered during Phase IV of 25 this hearing? 3446 01 MR. GUINEE: Right. I learned that at the beginning of 02 Phase IV. My testimony was prepared after the workshop 03 where potentially a Yuba hearing was being proposed. 04 MR. LILLY: You basically decided to submit the 05 testimony even though you did learn that no Yuba River 06 settlement agreement was being submitted in Phase IV? 07 MR. BRANDT: I think that misstates his testimony. 08 MR. GUINEE: I submitted the testimony prior to 09 learning that. I submitted testimony prior to Phase IV. I 10 learned on the first day of the Phase IV that there would 11 not be a Yuba River. 12 MR. LILLY: All right. Maybe I am getting -- I guess I 13 am getting semantics. Obviously you submitted the written 14 exhibit. But as far as the actual oral testimony, you 15 decided to go forward with that even though there was no 16 settlement agreement; is that correct? 17 MR. GUINEE: Right. I think it is important that any 18 settlement agreement be somewhat consistent with the Board's 19 Alternative 5. 20 MR. LILLY: And certainly if there ever is a Yuba River 21 settlement agreement, we will come back to that issue. 22 Mr. Caffrey, I have no further questions at this time. 23 I would like to offer Exhibit YCWA-1 into the record at this 24 time. 25 C.O. CAFFREY: I have made a note of your exhibit, Mr. 3447 01 Lilly, and the practice we've been using is to pick up all 02 the exhibits at the end of the phase with the case in chief. 03 There may be others from cross-examiners. So, we will -- 04 Does that create a problem for you in terms of being 05 here? 06 MR. LILLY: No, that's fine. I just didn't know what 07 your practice was when there were cross-examination 08 exhibits. But if you want to handle it that way, that is 09 fine. 10 C.O. CAFFREY: Appreciate that, and I've made a note of 11 your exhibit here, and we will be taking it into the record 12 at a slightly later date. 13 MR. LILLY: Thank you. 14 C.O. CAFFREY: Thank you, sir. 15 Mr. Campbell. I will read, again, the names in the 16 order that I have them. 17 After Mr. Campbell, Mr. Johnston, Mr. Minasian, Mr. 18 Suyeyasu, Mr. Herrick, and I believe that is it. And Mr. 19 Etheridge. You will be included. Thank you for reminding 20 me. We have moved you to the back of the list at your 21 request. 22 Good morning, Mr. Campbell. 23 ---oOo--- 24 // 25 // 3448 01 CROSS-EXAMINATION OF THE CITY OF WEST SACRAMENTO 02 BY DEPARTMENT OF FISH AND GAME 03 BY MR. CAMPBELL 04 MR. CAMPBELL: Ms. Goude, do you recall a hypothetical 05 scenario presented to you by the attorney for Yuba County 06 Water Agency, Mr. Lilly, yesterday with some lines, numbers 07 and river names on a piece of paper? 08 MS. GOUDE: Yes, I do. 09 MR. CAMPBELL: In your expert opinion is there anything 10 wrong with that hypothetical in terms of real world 11 biological factors and Department of Interior's recommended 12 ecological fair share approach? 13 MS. GOUDE: Well, as it relates to the problem with the 14 hypothetical issues, is that the system's much more complex. 15 As I stated previously, it doesn't take in place the biota 16 that are present in the various streams, the substrate, the 17 water quality, the contaminant loading, carryover storage 18 from whatever reservoir you are operating out of. It 19 basically doesn't take into account the historical 20 perspective of which river you are dealing with which has 21 issues that are important to look at. So, it is really a 22 simplistic model, and it results in probably fairly 23 inadequate answers on my part when I am trying to explain 24 it. 25 MR. CAMPBELL: How does your testimony relate to the 3449 01 policy position of the Department of the Interior? 02 MS. GOUDE: I guess I can be happy to say that I am 03 biology and not necessarily making policy decisions. And I 04 am providing a biological perspective of what is important. 05 But it is not inconsistent with what the policy statement 06 that Mr. Brandt read, because it basically talks about the 07 ecological fair share as a stepping stone -- that the water 08 quality right's position is a stepping stone towards the 09 fair share. 10 MR. CAMPBELL: This last question I have is somewhat 11 long, probably because it is one born of confusion. If you 12 will bear with me I will try to get it out. 13 After hearing Ms. Brandes testify in Phase II and then 14 your testimony, I believe in, and Mr. Guinee's testimony, I 15 believe in response to Mr. Nomellini's questions yesterday 16 and your testimony in response to Mr. Birmingham's questions 17 yesterday, I became confused about the United States Fish 18 and Wildlife Service's position regarding the relationship 19 between flows exports and salmon smolt survival on the San 20 Joaquin River. Could you try to clarify that for me? 21 MS. GOUDE: Well, Marty Kjelston and Pat Brandes from 22 the Service are the experts that have been working on those 23 studies. My understanding of those studies have been that 24 there has been some flow relationship for outmigration and 25 survivorship of San Joaquin salmon. But the difficulties in 3450 01 their studies have been the inconsistency of export rates 02 and the replication of those studies over time, as I 03 understand it, and that was one of the ideas that VAMP, the 04 study Vernalis, would do, would make a consistent export 05 rate so that you could have replicate study and have a 06 little bit better information and detail. 07 MR. CAMPBELL: Just to restate, according to the 08 testimony by Pat Brandes, as you understand it, and the 09 studies which, I believe, you reviewed, the Service has 10 determined that there is a statistically significant 11 relationship between flow and salmon smolt survival in the 12 San Joaquin River? 13 MS. GOUDE: Yes, that is my understanding. 14 MR. CAMPBELL: No further questions. 15 C.O. CAFFREY: Thank you, Mr. Campbell. 16 Mr. Johnston. 17 Morning, sir. 18 ---oOo--- 19 CROSS-EXAMINATION OF THE DEPARTMENT OF THE INTERIOR 20 BY MODESTO IRRIGATION DISTRICT 21 BY MR. JOHNSTON 22 MR. JOHNSTON: Morning, Mr. Chairman. My name is 23 William Johnston and I represent Modesto Irrigation 24 District. 25 Mr. Guinee, do you recall that during your 3451 01 cross-examination by Mr. Jackson that he asked you about the 02 historical spawning areas on several rivers in the Central 03 Valley? 04 MR. GUINEE: Yes. I remember that. 05 MR. JOHNSTON: Was one of the rivers you discussed in 06 your answer to him the Tuolumne River, which is a tributary 07 to the San Joaquin River? 08 MR. GUINEE: I indicated to him that spring-run chinook 09 salmon historically occur in the Tuolumne River. 10 MR. JOHNSTON: Do you have a specific time frame in 11 mind when you use the term "historically"? 12 MR. GUINEE: Again, I didn't bring the specific dates 13 or don't have them in front of me, but there are several 14 dams on the Tuolumne River. 15 MR. JOHNSTON: I am trying to understand what you mean, 16 what period of time you mean when you say "historically" 17 such and such occurred. 18 MR. GUINEE: Prior to the construction of those dams. 19 MR. JOHNSTON: How far back do the records go in any of 20 the agencies, federal or state, that record salmon runs or 21 fish occurrences in regard to these rivers? 22 MR. GUINEE: As far as the records for Fish and Game or 23 Fish and Wildlife Service, they go back into the '40s. What 24 I am referring to is based more on anecdotal information. 25 MR. JOHNSTON: When or about what year, in your 3452 01 opinion, was the last large chinook salmon run on the San 02 Joaquin Basin? 03 MR. GUINEE: I don't have that information before me. 04 MR. JOHNSTON: Do you have any idea? What are we 05 talking about? 06 MR. GUINEE: Well, LaGrange Dam was built around the 07 turn of the century. Old Don Pedro Dam came, I don't 08 recall, in the late 1900s sometime. 09 MR. JOHNSTON: Would you consider a run of more than 10 40,000 fish a significant run for the Tuolumne River? 11 MR. GUINEE: Actually, in terms of fall-run chinook, if 12 you can get 10,000 back to the Tuolumne, you are doing 13 pretty good. 14 MR. JOHNSTON: Would you be surprised if I told you the 15 Fish and Game records show adult fall-run salmon return into 16 Tuolumne in numbers over 120,000 in 1940 and 1944 and over 17 40,000 in 1953, '54, '59, '60 and 1985? 18 MR. GUINEE: No, that doesn't surprise me. 19 MR. JOHNSTON: Again, in regards to the Tuolumne, are 20 you familiar with the approximate location of LaGrange Dam, 21 which is at the end of the foothills on the western slope of 22 the Sierra Nevada mountains? 23 MR. GUINEE: Yes, I am. 24 MR. JOHNSTON: Are you aware that the original Wheaton 25 Dam, constructed to block the river at a height of over 30 3453 01 feet was completed in 1852? 02 MR. GUINEE: I am not familiar with all the history of 03 all the dams on the river. 04 MR. JOHNSTON: And the Wheaton Dam was replaced by 05 128-foot high LaGrange Dam in 1894? 06 MR. GUINEE: I am aware the LaGrange Dam was built 07 around the turn of the century. 08 MR. JOHNSTON: Wouldn't you conclude, then, that the 09 passage of anadromous fish above the point on the Tuolumne 10 River, then, has been blocked for over 135 years? 11 MR. GUINEE: I guess that potentially is true, 12 depending on the size of the dam and the potential 13 opportunities for passage during high spring flows. 14 MR. JOHNSTON: Then, in your term of "historical" you 15 certainly aren't referring to runs that occurred prior to 16 the construction of Wheaton or LaGrange Dams on the Tuolumne 17 River? 18 MR. GUINEE: I am sorry, I didn't follow. 19 MR. JOHNSTON: When you use the term "historically runs 20 have occurred in the Tuolumne River," you are not inferring, 21 then, that there have been any runs above the point of 22 LaGrange Dam, are you? 23 MR. GUINEE: No. I am saying that prior to the 24 LaGrange Dam, and possibly other dams, that there were 25 spring-run chinook. 3454 01 MR. JOHNSTON: What data do you have to support that 02 conclusion? 03 MR. GUINEE: I indicated that it was anecdotal 04 information. 05 MR. JOHNSTON: Is there anything in the written record 06 that shows that that occurred? 07 MR. BRANDT: Objection. Vague as to "written record." 08 MR. JOHNSTON: Well, he says "anecdotal records." 09 C.O. CAFFREY: Be more specific, Mr. Johnston. 10 MR. GUINEE: Like reports or something like that? 11 MR. JOHNSTON: Yes. Anything that you can point to. 12 MR. GUINEE: I don't have them at my disposal. I would 13 have to get back to you on that. 14 MR. JOHNSTON: I would appreciate it if you have 15 anything that documents occurrences prior to the 16 construction of Wheaton Dam. 17 That is all the questions I have, Mr. Chairman. 18 C.O. CAFFREY: Thank you, Mr. Johnston. 19 Mr. Minasian. 20 ---oOo--- 21 CROSS-EXAMINATION OF THE DEPARTMENT OF THE INTERIOR 22 BY FEATHER RIVER WATER DIVERTERS 23 BY MR. MINASIAN 24 MR. MINASIAN: Ms. Goude, today I am representing the 25 Feather River water diverters, who are clients of our 3455 01 office. 02 Can I ask you to flush out for me the concept of mimic 03 natural hydrology in regard to the effects upon the Delta 04 smelt? How would one mimic the natural hydrology and 05 benefit the Delta smelt? 06 MS. GOUDE: You want to narrow that down? I mean, how 07 do you mean that? 08 MR. MINASIAN: If you don't feel comfortable narrowing 09 it down, I'd be happy to. 10 We talked about mimicking the natural hydrology in 11 terms of making more water available from the Mokelumne to 12 the Delta so there is more water, and let's focus on the 13 period of March, April, May. 14 Does that benefit the Delta smelt? 15 MS. GOUDE: That there is more water coming into the 16 Delta in March, April and May? 17 MR. MINASIAN: From the Mokelumne. 18 MS. GOUDE: Yes, it would be a benefit if it reaches 19 the Delta. 20 MR. MINASIAN: In your testimony, however, you've 21 described that the problems of survival of the Delta smelt 22 also relate to where they are diverted in the Delta by the 23 flow pattern, have you not? 24 MS. GOUDE: No. I said it's not where they are 25 diverted, but where the fish are distributed within the 3456 01 system. But you have to recognize that if you have a 02 threatened species, any loss of a segment of that population 03 is of major concern. 04 MR. MINASIAN: So the concept of mimicking natural 05 hydrology works on the Mokelumne because the water flows 06 into the Delta and it flows in the proper direction, and the 07 Delta smelt benefit. Is that correct? 08 MS. GOUDE: Hopefully, if the water is flowing from the 09 Mokelumne it would flow in the proper direction, depending 10 on a lot of other factors, including export rates and 11 operation of barriers and a lot of other things. 12 MR. MINASIAN: So, if we were going to mimic natural 13 hydrology, how would we mimic natural hydrology in terms of 14 the flows from the Sacramento side in a fashion that would 15 benefit the Delta smelt? 16 MS. GOUDE: Well, the Sacramento -- I guess the issue 17 is mimicking the natural hydrograph or the hydrology within 18 each tributary and then the contribution of that proportion 19 into the Delta and the system to meet the standards. So 20 there is a combination of proportion. And I guess the 21 question is that can you distribute or distinguish the 22 American River water from the Feather River. No. But as it 23 relates to the issue of providing flows that adds to the 24 flexibility and maintaining that population on the 25 Sacramento side, it is important. And the Delta smelt is 3457 01 not the only fish. There is also Sacramento splittail that 02 are using the Sacramento River. 03 MR. MINASIAN: But in your answers will you focus just 04 for a moment on the Delta smelt? 05 MS. GOUDE: All right. 06 MR. MINASIAN: We talked about the tributaries and the 07 flow mimicking the natural hydrology. I would like to show 08 you a Page 6-5 from the State Board's Draft EIR. 09 I don't expect to make you an expert on this. This is 10 solely for demonstrative purposes. You see that these are 11 schedules of Delta exports. The top chart is an average 12 over 73 years, and the bottom chart is a critical period 13 average? And I have underlined in red the figures which are 14 in thousands of acre-feet. 15 MS. GOUDE: Yes. 16 MR. MINASIAN: Do you see that I have in a very 17 amateurish way taken one of the figures and tried to figure 18 out how many cfs in acre-feet per day that is pumped out of 19 the Delta? 20 What I am referring to is Page 6-5 of the State Board's 21 Draft EIR. 22 You with me so far? 23 MS. GOUDE: Right. 24 MR. MINASIAN: So my question is: How, when we have 25 these huge pumps working to the south diverting the water in 3458 01 an unnatural way and the Sacramento River being used as a 02 tube to shoot stored water down that would not have been 03 there in the state of nature, how are we going to mimic 04 natural hydrology in April, May and June? 05 MS. GOUDE: Well, I never said that it would be 06 natural. And I basically said you had to mimic the 07 hydrograph. 08 Right now what you are doing with the state and federal 09 facilities implementing the plan, you have even less 10 flexibility for those fish as it relates to expert issues. 11 So, I guess what I need to clarify is that I am not 12 disputing that exports are an issue and that you have to 13 look at that when you are looking at the overall system. 14 MR. MINASIAN: What is the relative benefit, in your 15 biologist way of thinking, of making water right holders who 16 have a priority ahead of the Bureau on the Sacramento system 17 give up water instead of the Bureau giving it up in terms of 18 mimicking natural hydrology in the Delta with these pumps 19 operating? How does that fit biologically? 20 MS. GOUDE: Well, I am not -- so far I've had to 21 explain I am not a hydrologist and I am not an attorney, 22 either. And so trying to distinguish the water rights, and 23 I am not going to deal with that issue. 24 But the point that I am saying is that biologically 25 there are certain streams that both the Bureau and the State 3459 01 Water Project do not have contributions or water that they 02 are providing, and that providing multiple sources have 03 biological benefits to numerous species, including Delta 04 smelt. As I've stated prior, that there is no -- I can't 05 necessarily show any empirical information that one water 06 source shows up in the Delta as a distinct American River 07 water molecule that you can watch through the system, you 08 cannot see it that way. But it does provide all the 09 information and studies on estuaries throughout the system 10 that have been done show that you need to deal with source 11 water and contributions from those various source waters to 12 make an estuary whole and healthy. 13 MR. MINASIAN: But your written testimony isn't 14 directed to any tributary other than that Mokelumne, is it? 15 MS. GOUDE: Well, based on my -- what I was presented 16 and my understanding when I provided the information on at 17 the beginning was that Mokelumne had an agreement that was 18 before us and that we have certain principles and 19 information that should be taken in place, and the reason 20 mimicking the natural hydrograph became important was to 21 describe and explain why the Mokelumne agreement fell short 22 in meeting those needs. 23 MR. MINASIAN: But do you agree that your direct 24 testimony went beyond that in regard to other tributaries in 25 terms of -- you were using the phrase "equitable, fair 3460 01 share" or "ecological fair share" in regard to other 02 tributaries? 03 MS. GOUDE: I think that since this is talking about 04 an agreement and potential agreements that the basic 05 principles hold true. 06 MR. MINASIAN: And so, in your view, despite the fact 07 your testimony does not include any biological basis for it 08 on any other tributary, what you have learned in regard to 09 the Mokelumne you believe can be extended to other 10 tributaries? 11 MS. GOUDE: Actually, in the testimony it refers to the 12 critical habitat and the recovery plans as well as the 13 listing package, the actual listing package, for Delta smelt 14 which uses as the basic principles the contributions and the 15 needs from various tributaries as the whole focal point of 16 those documents. 17 MR. MINASIAN: Next I would like you to look at the 18 last page of your testimony and the reference to the 19 settlement agreement on the Mokelumne River. 20 Do you have a copy of that available to you? 21 MS. GOUDE: What, the settlement agreement? 22 MR. MINASIAN: Yes. 23 MS. GOUDE: No, I don't have it. 24 MR. MINASIAN: Would you like to borrow mine. This is 25 DOI Exhibit 102. 3461 01 MS. GOUDE: This is the -- okay, the FERC one. 02 MR. MINASIAN: Are you saying in your testimony that 03 because the settlement agreement by its terms doesn't become 04 effective until FERC approves it, that you and the U.S. Fish 05 and Wildlife Service don't feel that you are bound by the 06 terms of this agreement? 07 MS. GOUDE: No. What we had to deal with previously I 08 explained in earlier testimony is that we have under Section 09 7 we consult on project description alternatives put before 10 us. And FERC submitted the settlement agreement as the 11 project description to work on. We very -- we discussed 12 that it didn't deal with the Delta contributions and was 13 dealing with mainly nothing below Woodbridge and it was all 14 on the Lower Mokelumne. 15 MR. MINASIAN: Could you find somewhere in the document 16 where it uses words to the effect "we are not dealing with 17 the Delta issues regarding anadromous fish" in this 18 agreement? 19 MS. GOUDE: I am not as familiar with the agreement as 20 our biological opinion, which, in fact, states it. And the 21 biological opinion does not authorize any incidental take, 22 specifically, states that the State Board proceedings would 23 be where you would deal with Delta issues. 24 MR. MINASIAN: Look at the signature page, which is the 25 last page. Do you see that the date of it is November 11th, 3462 01 1996, and Wayne White, the state supervisor, signed the 02 agreement? 03 MS. GOUDE: I see that. 04 MR. MINASIAN: Do you agree that is about less than two 05 years ago? 06 MS. GOUDE: Yes. Even I can do that math. 07 MR. MINASIAN: Do you agree that what we are trying to 08 do today is find out what the biological truth of the 09 Mokelumne in regard to anadromous fish is? 10 MS. GOUDE: I can't answer what you are trying to do. 11 MR. MINASIAN: Just take a moment and look at some of 12 the terms that apparently were true in November of 1996. 13 Look at Page 14 -- 14 MS. GOUDE: What did you say? 15 MR. MINASIAN: -- of the agreement. If you would 16 rather read it up there, it is more convenient, that's okay. 17 Do you see the language? It says: 18 The resources agencies agree that they will 19 not recommend to the State Water Resources 20 Control Board flows or nonflow measures 21 affecting East Bay MUD for the Lower 22 Mokelumne River and the Mokelumne River water 23 rights proceeding which are inconsistent with 24 those set forth in this agreement. 25 (Reading.) 3463 01 MS. GOUDE: This was again relating to the FERC 02 agreement as it relates to salmon flows. It was not dealing 03 with the Delta issues. It was very specific, and in fact, 04 our biological opinion articulates that. 05 MR. MINASIAN: Are you begging off on finding the 06 language that says that the East Bay MUD agreement doesn't 07 deal with salmon in the Delta? 08 MS. GOUDE: Basically, it says it is the lower -- it's 09 the East Bay MUD's Lower Mokelumne water rights. It doesn't 10 deal with the area from Woodbridge to the Delta. 11 MR. MINASIAN: So, in November of 1996, comparing that 12 to today, what biological light have you seen which would 13 require greater flows for anadromous fish in the Mokelumne 14 River? 15 MS. GOUDE: The light, as you say, was basically that 16 we initiated -- a consultation was initiated on August 29th, 17 1997, with Fish and Wildlife Service from FERC. And we did 18 a consultation on project description. And although people 19 can argue the Section 7 regs or the rules on how to deal 20 with a biological opinion, we have to consult on the issue 21 and the action before us, and that is what we did. 22 And so the analysis on the endangered species, 23 threatened Delta smelt, is what is embodied in the March 24 23rd, 1998, biological opinion. 25 MR. MINASIAN: So, you and Mr. Guinee, then, are not 3464 01 saying that more water is needed, either in the Lower 02 Mokelumne watershed or in the Delta for anadromous fish 03 today? 04 MS. GOUDE: What I am saying is I am speaking to Delta 05 smelt. What the FERC agreement was dealing with was the 06 in-stream fishery needs of the Mokelumne to Woodbridge. It 07 wasn't dealing with getting those fish down further from 08 Woodbridge on through the Delta and on the contribution of 09 into the Bay. 10 MR. MINASIAN: How would you advise this Board and 11 myself? If you imagine us trying to drive a train, how do 12 we know -- 13 MS. GOUDE: That would be scary. 14 MR. MINASIAN: It is scary. 15 How do you know where we are going to go unless we can 16 trust what you signed in November 1996 in regard to the 17 fishery? 18 MR. BRANDT: Objection. Argumentative and 19 mischaracterizes the testimony. 20 MR. MINASIAN: I'll withdraw it. 21 MR. BRANDT: At this point -- I mean, the document 22 speaks for itself on what it applies to and what it does not 23 apply to. It applies to the Lower American River, and it 24 does not apply to the Delta. 25 MS. GOUDE: Lower Mokelumne. 3465 01 MR. BRANDT: Excuse me, what did I say? Lower 02 Mokelumne. 03 C.O. CAFFREY: Mr. Minasian has withdrawn the 04 question. 05 MR. MINASIAN: Look at Page 9, Paragraph 8. 06 MS. LEIDIGH: Page 9 of which document? 07 MR. MINASIAN: Of 102, the Bureau's Exhibit 102. 08 MS. LEIDIGH: That would be Department of Interior 09 102. 10 MR. MINASIAN: Yes. Thank you. 11 Imagining the train for a moment, the conductor reads 12 this language. How could he gather from this language any 13 contract submitted to a federal agency that you really want 14 the train to go to a different station? 15 MR. BRANDT: Incomplete hypothetical because it assumes 16 that conductor has had no other conversations in negotiating 17 this language. 18 C.O. CAFFREY: Let's keep our hypotheticals on the 19 subject of water. I love trains, but this is a water 20 hearing. 21 MR. MINASIAN: Look at the language. It says: 22 The parties agree that implementation of the 23 flow requirements and nonflow measures set 24 forth in this agreement constitutes a 25 reasonable contribution by East Bay MUD to 3466 01 provide reasonable protection enhancement 02 from the current conditions for the 03 anadromous fishery ecosystem of the Lower 04 Mokelumne River and constitutes a reasonable 05 contribution on the part of East Bay MUD 06 towards state and federal fishery restoration 07 goals for the river set forth in the 08 California Salmon Steelhead Trout and 09 Anadromous Fisheries Program Act in the 10 CVPIA. (Reading.) 11 See that language? 12 MS. GOUDE: Yes. 13 MR. MINASIAN: It is talking about the Mokelumne River, 14 isn't it? 15 MS. GOUDE: As defined in the project and as I 16 understand it, Lower Mokelumne means the Lower Mokelumne and 17 does not include past Woodbridge and into the Delta. 18 MR. MINASIAN: So, is it your view that the authors of 19 this agreement neglected to provide sufficient water for the 20 salmon to get to the Mokelumne through the Delta? 21 MS. GOUDE: The FERC agreement and the actions where it 22 has it related to in-stream needs within that portion of the 23 Mokelumne reach. 24 MR. MINASIAN: It is your view that they provided an 25 inadequate water for anadromous fish to get through the 3467 01 Delta to the Mokelumne? 02 MS. GOUDE: I didn't say that. I said that that was 03 not what the analysis was looking at. 04 MR. MINASIAN: Nothing further. 05 C.O. CAFFREY: Thank you, Mr. Minasian. 06 Ms. Goude, the Board would be interested in -- 07 Mr. Minasian, your last question, the Board Members are 08 interested in your opinion with regard to sufficient water 09 in that stretch of Mokelumne under the FERC decision. 10 Do you feel there is enough water -- I don't know if I 11 can recharacterize the question exactly. 12 MR. MINASIAN: Would you like me to pose the question? 13 C.O. CAFFREY: Would you pose it again, Mr. Minasian, 14 because the Board members would like to know if you have an 15 opinion, yes or no, on that question. 16 Go ahead, Mr. Minasian. 17 MR. MINASIAN: It probably is more appropriate to Mr. 18 Guinee who is closer to a hydrologist. I apologize for 19 accusing you of that, Mr. Guinee. 20 C.O. CAFFREY: Either one. 21 MR. MINASIAN: You are aware there is a flow schedule 22 in that agreement, are you not, Roger? 23 MR. GUINEE: I am aware of that, yes. 24 MR. MINASIAN: The flow schedule calls for passage of 25 water downstream of the Woodbridge Dam, does it not? 3468 01 MR. GUINEE: It calls for some of the water to pass 02 downstream of Woodbridge Dam. The analysis that I did in 03 Exhibit 9-B would indicate that in critical years on a 75 04 cfs is passing downstream of Woodbridge from November 05 through April, and only 15 cfs in May and June. 06 So I would answer in the affirmative to your question 07 is -- maybe let me say it this way: I do not believe those 08 are adequate flows for downstream migration of salmon. 09 MR. MINASIAN: But the Board's question is: Does the 10 1996 agreement provide a requirement, not only that East Bay 11 MUD dump water out of Comanche, but that certain flow levels 12 and certain spawning beds be flooded and certain amounts of 13 water go downstream below Woodbridge Dam? 14 MR. GUINEE: I would answer this way, Mr. Minasian: 15 That I participated in Mokelumne River hearings in 1992 and 16 made recommendations on behalf of Fish and Game, and Fish 17 and Wildlife Service made consistent recommendations at that 18 time. So, I would have to compare what those agreement 19 flows are to what was recommended then, as what we thought 20 was adequate. 21 MR. MINASIAN: Roger, have you studied the 1996 22 agreements sufficiently to know that nowhere in it does it 23 say East Bay MUD or anybody can steal all the waters so the 24 river is dry at some location between Woodbridge and the 25 Delta? 3469 01 MR. GUINEE: I wasn't involved in the negotiation of 02 that agreement, and I have not done a comparison between 03 that agreement and other Mokelumne River flow 04 recommendations. 05 C.O. CAFFREY: Mr. Stubchaer wishes to pose a 06 question. 07 C.O. STUBCHAER: The question I thought we wanted to 08 hear the answer to was the last question of Ms. Goude, and 09 that you asked: Did the framers of this agreement not look 10 downstream of Woodbridge Dam or something like that? You 11 may have used the word "neglect"; I won't use the word 12 "neglect." 13 We could ask that that question be read back or you 14 could rephrase it or reask it. 15 MR. MINASIAN: Obviously, I have stumbled. Let me see 16 if this was the question. 17 Ms. Goude, would you like to address the question of 18 whether or not the authors of the 1996 agreement on behalf 19 of U.S. Fish and Wildlife Service looked at the question of 20 is there enough water to get the anadromous fish back to the 21 Mokelumne and get them out of the Mokelumne through the 22 Delta? 23 MS. GOUDE: I wasn't in the negotiations on the 24 agreement, and so I wasn't a party to those meetings. But 25 my understanding is that there may -- there were discussions 3470 01 and an understanding and open discussions about the fact of 02 the problems as it relates to past Woodbridge, and the 03 analysis and the information on the FERC settlement was a 04 narrow defined area. Now, it is not like anybody stopped 05 thinking or didn't discuss, both on East Bay MUD's part and 06 Fish and Wildlife Service, that all of a sudden the stream 07 ends at Woodbridge. There was discussion, but I wasn't 08 sitting at those tables. 09 C.O. STUBCHAER: The basic question is: Is there any 10 certainty anyplace that the parties entered an agreement in 11 good faith and that they think they satisfied all the 12 demands for the fish in the Mokelumne River, and that 13 something comes along later, I know that is an Endangered 14 Species Act, the way it works, and removes any certainty? I 15 think that is a concern that Mr. Minasian has been trying to 16 get at. 17 MS. GOUDE: I need to respond. The point is that what 18 was being looked at was not the certainty of what it was 19 dealing with within the Delta. It was very -- from the 20 Service's perspective whether, you know, people dispute that 21 or not, was dealing with the in-stream flow needs that was 22 that reach. 23 C.O. CAFFREY: Mr. Brandt. 24 MR. BRANDT: I think the document will speak for 25 itself. This was a very carefully drafted document. All 3471 01 through here you will see here that it refers to the Lower 02 Mokelumne. There were -- as I understand, there were 03 negotiations on that language. They would try to get 04 coverage for the Delta as well. 05 MR. MINASIAN: I am going to object and ask this be 06 stricken unless I can cross-examine him as to the language. 07 MR. BRANDT: That is fine. I will just back -- I 08 withdraw -- 09 MR. MINASIAN: Let's withdraw my motion. Now that it 10 is in, let me ask him some questions. 11 C.O. CAFFREY: We will strike that. 12 MR. BRANDT: Strike that and just say the document 13 speaks for itself. 14 C.O. CAFFREY: Do you understand, Esther, strike Mr. 15 Brandt's entire statement. 16 MR. MINASIAN: I apologize for being so abrupt. 17 C.O. CAFFREY: Thank you, Mr. Minasian. 18 Mr. Suyeyasu. 19 Good morning, Mr. Suyeyasu. 20 ---oOo--- 21 CROSS-EXAMINATION OF THE DEPARTMENT OF THE INTERIOR 22 BY ENVIRONMENTAL DEFENSE FUND 23 BY MR. SUYEYASU 24 MR. SUYEYASU: Dan Suyeyasu for the Environmental 25 Defense fund. 3472 01 Ms. Goude, Mr. Guinee, I would like to clarify just a 02 bit of what both of you have meant by mimicking the natural 03 hydrograph or the ecological fair share concept that you 04 both put forward. You both believe that it is biologically 05 beneficial to mimic the natural distribution of source 06 waters to the Delta; is that correct? 07 MR. GUINEE: Yeah, that is correct. 08 MS. GOUDE: Yes, that is correct. 09 MR. SUYEYASU: That might be considered sort of a 10 spatial mimicking across different tributaries; is that 11 correct? 12 MS. GOUDE: Yes. 13 MR. GUINEE: And the diversity, the variability of 14 those flows lead to the stability of the ecosystem. 15 MR. SUYEYASU: You also both believe that it is 16 biologically beneficial to mimic the seasonal variation in 17 the natural hydrograph on each specific tributary to the 18 Delta; is that correct? 19 MS. GOUDE: Yes. 20 MR. GUINEE: Yes. 21 MR. SUYEYASU: That would be more of a temporal 22 mimicking; is that correct? 23 MS. GOUDE: Correct. 24 MR. GUINEE: Yes. 25 MR. SUYEYASU: You also both believe that it is 3473 01 generally biologically beneficial to mimic the quantities of 02 water that would be present in the natural hydrograph; is 03 that correct? 04 MR. GUINEE: That is correct. Although I did not get 05 into specific quantities in my testimony. I made the point 06 that I did advocate the actual numbers in the Board's 07 Alternative 5, but there needs to be some definition of what 08 those quantities would be mimicking the natural hydrograph. 09 MR. SUYEYASU: Ms. Goude. 10 MS. GOUDE: I concur with Mr. Guinee's answer. 11 MR. SUYEYASU: To summarize what you are saying, the 12 more closely the quantities provide in-stream mimic the 13 quantities in the natural hydrograph, the better that will 14 be biologically in your opinion. 15 MS. GOUDE: I don't know if you can say the quantities 16 per se, but I think you would have to look at the streams 17 and the biological needs of those streams and how they 18 contribute and look at it not in a simplistic view, but in a 19 holistic view. 20 MR. GUINEE: That is correct; and then there are other 21 in-stream flow studies. Historically one of the methods in 22 trout streams was to look at a percentage of the unimpaired 23 flow as a way of keeping the trout population in poor or 24 fair or good condition, depending on the percentage flow. 25 MR. SUYEYASU: Just to help the Board move forward with 3474 01 the recommendations here, you would advise that they look at 02 a mimicking both on spatial scale between tributaries 03 seasonally on each individual tributary and also 04 quantitatively on each tributary. Is that correct? 05 MS. GOUDE: Correct. 06 MR. GUINEE: That is correct. The testimony, 07 particularly in the spring, which the Board is considering 08 for meeting the Water Quality Control Plan, is important. 09 MR. SUYEYASU: Mr. Guinee, you believe that the Board 10 in assigning responsibility to meet the objectives of the 11 1995 Water Quality Control Plan should consider a 12 distribution between tributaries that at least roughly 13 mimics the natural hydrograph; is that correct? 14 MR. GUINEE: Yes, I do. 15 MR. SUYEYASU: And you support the mimicking of the 16 natural hydrograph as between tributaries at least in part 17 because it will help to meet the narrative objective for 18 salmon. Is that correct? 19 MR. GUINEE: As I testified to, I believe it will. The 20 narrative salmon objective, as I recall, indicates that 21 Delta water quality conditions shall be maintained together 22 with other measures in the watershed sufficient to achieve 23 the doubling of chinook salmon. 24 MR. SUYEYASU: Why is it that a mimicking of the 25 natural hydrograph as between tributaries will contribute 3475 01 toward the narrative objective more than a distribution of 02 responsibility based possibly on priority of water rights? 03 MR. GUINEE: Particularly, when salmon are resident in 04 those tributaries it is important that spring flows be there 05 for their downstream migrations. 06 MR. SUYEYASU: So, it is important to have spring flows 07 on each individual tributary and that they not come from one 08 single tributary or just a few? Isn't that correct? 09 MR. GUINEE: That's correct. And specifically for my 10 testimony I compared the Mokelumne and the Yuba flows to the 11 Board's draft, you know, EIR. 12 MR. SUYEYASU: No further questions. 13 C.O. CAFFREY: Thank you, Mr. Suyeyasu. 14 Mr. Herrick, are there any questions left? Referring 15 to your comment of yesterday. 16 Good morning, sir. 17 ---oOo--- 18 CROSS-EXAMINATION OF THE DEPARTMENT OF THE INTERIOR 19 BY SOUTH DELTA WATER AGENCY 20 BY MR. HERRICK 21 MR. HERRICK: Good morning, Mr. Chairman, Board 22 Members. John Herrick for South Delta Water Agency. 23 Mr. Guinee, unfortunately about this mimicking the 24 hydrograph issue, I just want to be clear that you're not 25 offering any information as to how much water, additional 3476 01 water, should be coming out of the Mokelumne; is that 02 correct? 03 MR. GUINEE: That's correct. What I suggested is to 04 use something similar to an Alternative 5 approach as a 05 starting point. 06 MR. HERRICK: I don't mean this to make light of 07 anything, but on the chart that you showed us you could have 08 something mimicking the hydrograph below those low water 09 levels. So it is a question of amount, correct? It is not 10 -- the amount under the MOU is insufficient; is that 11 correct? Is that what you are saying? 12 MR. GUINEE: Which chart were you referring to? The 13 Yuba or the Mokelumne? 14 MR. HERRICK: Mokelumne. If you expanded the -- 15 C.O. CAFFREY: Mr. Guinee, could you identify that 16 exhibit again. 17 MR. GUINEE: It is Exhibit 9-B showing the graph of the 18 Mokelumne flows. 19 C.O. CAFFREY: Thank you, sir. 20 MR. GUINEE: Could you ask or repeat the question? 21 MR. HERRICK: What I am getting toward is the Board is 22 trying to decide, among other things, whether or not they 23 will adopt this tributaries agreement as its share of the 24 contribution. So, we are trying to find if that is not 25 enough how much would be enough. Because if it doesn't come 3477 01 from there, it has to come from somewhere else. 02 We could create a line of flows over the year that 03 actually in some respect mimics the historical flows, but at 04 a very low, low level, correct? You could go down to 1 cfs 05 and then go up proportionally. 06 MR. GUINEE: Someone could argue that. I would not 07 argue that. I would argue that on this graph it is clear 08 that Alternative 5 flows may be the natural hydrograph. It 09 is also clear that the critical year flows for the MOU do 10 not. And then the above normal years for the MOU, there is 11 some minor increase in May and June, but -- 12 MR. HERRICK: It is the shape of the hydrograph, not 13 the amount is what you are testifying to? 14 MR. GUINEE: In terms of mimicking the natural 15 hydrograph, the shape of those do a better job. Now, in 16 terms of the amount, that is another question. 17 MR. HERRICK: From your analysis of the Mokelumne River 18 is there some lower end hydrograph shape that is acceptable, 19 but the flow is too little? 20 MR. GUINEE: Without doing any further analysis, that 21 is correct. I would go back to say the Mokelumne River 22 report and some of the flow recommendations in that report 23 in terms of conveying salmon downstream of Woodbridge Dam. 24 MR. HERRICK: Both for you and Ms. Goude, in the 25 analysis which I assume will be done of how much additional 3478 01 water should be provided on this tributary, do you take into 02 consideration the economics involved in that? And by that I 03 mean somebody will be giving up water. Is that part of your 04 concern in your biological analysis, how much it might cost 05 the person? 06 MR. GUINEE: As Ms. Goude mentioned, I am also a 07 biologist. So I am making statements and suggestions asking 08 the Board to consider the biological issues here. 09 MR. HERRICK: Is there some level of good excuse that 10 would change your biological opinion as to how much water 11 you would think needs to be provided on any certain 12 tributary? 13 MR. GUINEE: Could you clarify what you mean by "good 14 excuse." 15 MR. HERRICK: Well, if somebody says, "That just costs 16 me too much money to release that water." 17 MR. GUINEE: Well, actually, I participated in the 18 Mokelumne River hearings, and I think, you know, I testified 19 to the biology and others testified to the economics. And I 20 would leave that to the Board to make that decision. 21 MR. HERRICK: I am trying to narrow down your decision. 22 Yesterday we heard testimony that you start off with 23 mimicking the hydrology of the tributary, but then other 24 considerations come in to play. I am trying to find out how 25 you, as biologists, take those considerations into your 3479 01 decision. 02 MS. GOUDE: The only time on a regulatory basis that 03 Fish and Wildlife Service -- one of the ways is we do not 04 take economics into our biological opinions, per se. But 05 you have to develop reasonable and prudent alternatives or 06 reasonable and prudent measures for an action, and they have 07 to be, you know -- it can be judgmental at a point, but they 08 are supposed to be reasonable and prudent that they can be 09 implementable. That is not the same as doing an economic 10 analysis on that. 11 MR. HERRICK: Ms. Goude, the chart here talks about 12 minimum flows of 15 cfs in May. And it is my understanding 13 that both of you are recommending something closer to 14 Alternative 5 flows. 15 Can you just give me your estimation of the difference, 16 are we missing it by 200 or 300 or 500 cfs, according to 17 this chart? I think Alternative 5 -- I am not trying to 18 trick you. Alternative 5 is 871; is that correct, for May? 19 MS. GOUDE: Right. I think that the table speaks for 20 itself, basically, on what the differences are. And we were 21 simply pointing out a trend in the information in that 22 table. 23 MR. HERRICK: It is your opinion that that additional 24 flow would be beneficial for smelt? I am not talking about 25 the other species. 3480 01 MS. GOUDE: Which additional flow? 02 MR. HERRICK: The flow above the 15 cfs, the flow that 03 is reflective on Alternative 5 number, which is 871. 04 MS. GOUDE: If it reaches the Delta, yes, it would. 05 MR. HERRICK: Are there any studies that you have that 06 show -- let's make a hypothetical. Let's say the Delta 07 smelt are pretty far east, so some of them are at the 08 Mokelumne, the branches of the Mokelumne and the central 09 Delta. Are there any studies that exist that show an 10 additional 600, 700 cfs flow out of the Mokelumne will help 11 transport them somewhere else? Is that we are trying to 12 do? 13 MS. GOUDE: As I stated before, it is pretty difficult 14 when you have a system where you have contributions from 15 many different streams coming in at different times to be 16 able to show or document or quantify that this 600 cfs is 17 having this effect on that fish, especially Delta smelt. 18 What you can say is that with higher outflows from both 19 sources and exports at a certain rate, that Delta smelt 20 survival or indexes have gone up. You can make gross 21 generalizations of that nature. 22 MR. GUINEE: And I would add to that, for salmon, Fish 23 and Game in its 1991 report recommended flows in the 400, 24 500 cfs range during those months as well as a block of 25 water of about 10,000 acre-feet to add to that to help 3481 01 provide habitat for salmon to migrate downstream. 02 MR. HERRICK: I appreciate that. I am trying to stay 03 on smelt right now. If there is more water being proposed 04 being taken from this tributary, I am trying to connect that 05 with the effect on smelt. 06 Is the increased flow for smelt, is the purpose of that 07 to help push the population to a different area? 08 MS. GOUDE: Plus provide additional habitat. So it is 09 not just transport, but it provides basically habitat and 10 improved conditions for the smelt from a lot of factors, 11 including better -- could be better quality, a lot of 12 different actions. 13 MR. HERRICK: I am just trying to make a record clear 14 here. Is there any evidence that shows what amount of 15 additional flow -- I know there is other tributaries, but we 16 are trying to keep something steady here and examine one 17 thing. 18 Is there any evidence that shows how much additional 19 flow will actually help transport smelt to a different 20 place? 21 MS. GOUDE: Not necessarily. Because you also have to 22 take into effect a lot of variables within the Delta. That 23 is what makes dealing with Delta smelt very problematic at 24 times, including if you had, for example, an increase of 25 flow and your exports matched that increase pulse and you 3482 01 had 100 percent of export, I guess, it wouldn't be any 02 good. 03 MR. HERRICK: Let's take May. Let's assume that the 04 export limits that you have, I'll say, recommended in the 05 biological opinions or held at 1500 cfs for the pumps, the 06 export pumps. Do you believe that an additional 500 cfs in 07 Mokelumne will help transport smelt to a different area if 08 they are in the eastern part of the Delta? 09 MS. GOUDE: It could. Yes, it could. 10 MR. HERRICK: I am trying to find out what studies do 11 you have that show amounts of flow correlating to movement 12 of smelt populations? 13 MS. GOUDE: You don't have any studies of that. You 14 can only look at existing conditions through the record and 15 the index and sampling stations throughout the Delta and 16 look at relationships of what happened when you had certain 17 flows and certain export rates with certain actions and try 18 to make some sort of correlation or estimate of what the 19 population was doing. 20 But could you say that that is an accurate -- you know, 21 you can make some very sensible assumptions, but you don't 22 have any quantifiable study that shows that amount of water 23 makes that difference for the Delta smelt population. 24 MR. HERRICK: Understand that. That is what we are 25 looking for. Because the proposal, I guess, the unstated 3483 01 proposal is that somebody needs to give up more water. We 02 are trying to discover whether or not this is somebody's 03 best guess or whether there is some evidence that would 04 support it, that people can always critically look at it. 05 I am trying to find out -- maybe the next question is: 06 Are you aware of the volumes or the amounts of tidal flows 07 where the Mokelumne reaches the Delta? If those are 08 hypothetically much greater than 400 cfs increase, then 09 maybe it is not reasonable to conclude that a 400 cfs 10 increase has any effect. 11 Has that been examined by anybody? 12 MS. GOUDE: Yes. There has been a lot of information. 13 And actually what it is showing is some of the information 14 is that although tidal influence is a factor that you need 15 to look at that, that the flows are also a factor and it is 16 also the distribution of the Delta smelt within the water 17 column and how they move like particles, and that, 18 basically, there isn't -- seems to be an effect. And you 19 can see that when, for example, when a correlation when the 20 barriers, head of Old River of Tracy barriers or different 21 barriers are placed in, within the South Delta, and with 22 flows at a certain level and exports that take an incident 23 of Delta smelt that the federal facilities and state 24 facilities went up. 25 MR. HERRICK: I understand that, but we are talking 3484 01 about the Mokelumne now. Is there -- we are trying to put a 02 number on it. I know you are not going to because you 03 haven't prepared that. 04 Do you think it makes a difference -- at what level 05 does it make a difference that there is increased flow, 06 given the tidal action to the Delta? Has somebody examined 07 that and come to a conclusion? 08 MS. GOUDE: Yes, that is what I am saying. For Delta 09 smelt they are starting to look at that in different studies 10 and different information, and it is showing Delta smelt 11 don't just act and react with the tides; there are other 12 factors that are going on. 13 If it was the case that tide was the only reason and 14 tidal influence was the only factor and outflow and 15 reduction of spring outflow wasn't, then I don't think I 16 would be dealing with a listed species as a threatened 17 species because the tides never changed over time. 18 MR. HERRICK: I won't get into -- the tides change with 19 the operation of the pumps, correct? 20 MS. GOUDE: But -- I mean the point is that the tides, 21 the tidal influence and how the Delta smelt is distributed 22 have been fairly constant. Yes, the pumps have changed over 23 time, but so has outflow and how its been dealt with and how 24 the system has been operated. 25 MR. HERRICK: Can you provide us with these studies 3485 01 that show the correlation between increased flow and the 02 smelt that you just referenced? 03 MS. GOUDE: You are asking for scientific 04 correlation. There is no scientific correlation. It is 05 just the beginning of particle tracking studies and model 06 studies trying to come up with some way to deal with the 07 distribution. I don't think they have been published. They 08 have been presented at various seminars and conferences. 09 MR. HERRICK: Do you -- can you describe for the Board 10 the amounts of smelts that are taken at the state and 11 federal pumps each year? Is there some sort of summary you 12 can give on that? 13 MS. GOUDE: I don't have the numbers. But both Bureau 14 and the state has the running totals. I could -- we can get 15 it, but I don't have it available. In fact, I think it was 16 even on an Internet site at a certain point. 17 MR. HERRICK: Have you done any studies that compare 18 other factors that effect smelt with the takes that occur at 19 the pumps to get some sort of proportional idea of the 20 threats to smelt? 21 MS. GOUDE: What do you mean? 22 MR. HERRICK: Well, if you -- I'm just making this up; 23 I don't know what the number is. If the state and federal 24 pumps one year killed X number of thousands of smelt, I'm 25 wondering if anybody's investigated whether or not that is a 3486 01 bigger problem than an amount of flows coming out of, say, 02 the Mokelumne River? 03 MS. GOUDE: When you have a threatened species, you 04 should be looking at all aspects of the threats and trying 05 to remove those threats and improve their chances for 06 recovery. That doesn't mean just looking at one factor. So 07 we have been not only looking at and dealing with the state 08 and federal facilities trying to reduce the effects that 09 those facilities have on Delta smelt as well as other 10 species, but as well as looking at a lot of different other 11 issues, including diversions within the Delta, flows, X2. 12 We have been working on this for a number of years. 13 MR. HERRICK: I understand that. Is there any analysis 14 done by the Service regarding the relative threats to Delta 15 smelt? 16 MS. GOUDE: It's not as important as removing the 17 threats, regardless, so that you have restoration. 18 MR. HERRICK: If one threat was 90 percent of the 19 threat, wouldn't it be more important to focus on that, not 20 to say you would exclude the 10 percent, but isn't that more 21 important if it's a much greater -- 22 MS. GOUDE: I think that we have been focusing on the 23 largest threat and have been working through that and trying 24 to deal with it. 25 MR. HERRICK: Is one of those larger threats the 3487 01 operation of the pumps and the takes they -- 02 MS. GOUDE: That is one of the threats. It's been in 03 the listing document; that is why we have biological 04 opinions on it, and we have consulted on it numerous times. 05 MR. HERRICK: Getting back to the mimicking the 06 hydrograph, does it make a difference in your attempts to 07 mimic the hydrograph on one stream, other streams have flow 08 patterns that don't mimic the hydrograph? 09 MS. GOUDE: I don't exactly understand what you are 10 getting at. 11 MR. HERRICK: Is it important to look at the hydrograph 12 on the Mokelumne River and not look at the hydrograph on, 13 say, tributaries to the San Joaquin River? 14 MS. GOUDE: What I had said earlier in my testimony has 15 been that you have to look at the system as a whole and look 16 at each tributary and understand there that is physical 17 constraints or there is other species that you may be having 18 to deal with and that you have to look at in concert how you 19 would operate that system. 20 You can't look at one stream or one issue necessarily 21 in isolation. 22 MR. HERRICK: Is part of your concern about Delta 23 smelts -- let me start over. 24 Is one of the threats to Delta smelt that portions of 25 Old River and Middle River periodically have gone dry with 3488 01 the operation of the head of Old River barrier? 02 MS. GOUDE: Gee, I didn't realize that they went dry. 03 I've never heard that. 04 MR. HERRICK: Mr. Guinee, pursuant to Mr. Campbell's 05 questions, excuse me for beating a dead horse here, I just 06 want to confirm. I want you to tell me whether I am 07 remembering this wrong. 08 At the Phase II hearing the panel from the San Joaquin 09 River Group Authority was asked very specific questions 10 about correlation of flow and smolt survivability. It is my 11 recollection that the panel to a person said there is no 12 correlation and two of the members of the panel said we 13 believe there might be a correlation if the head of Old 14 River barrier is in existence. 15 Is that your recollection of that testimony? 16 MR. GUINEE: No, it is not. 17 MR. HERRICK: Do you believe that some of the documents 18 that that panel introduced suggest that there is a 19 correlation between flow at Vernalis and smolt 20 survivability? 21 MR. GUINEE: What I recall is Ms. Brandes saying 22 specifically that she has collected data for many years, and 23 that data does indicate there is a relationship between 24 flows at Vernalis and smolt survival. 25 MR. HERRICK: Was it that with regard to whether or not 3489 01 the head of Old River barrier existed? 02 MR. GUINEE: No. I believe the studies were done with 03 and without the barrier. 04 MR. HERRICK: There was discussion by one of the 05 examiners with regard to the AFRP flows. I would like to 06 get both of your opinions as to what is the appropriate flow 07 at Vernalis, and recognizing you have different expertises, 08 in salmon and smelt, what is the appropriate flow? Is it 09 the VAMP flow or the San Joaquin River flows or the '95 plan 10 flows or the AFRP flows? 11 MR. BIRMINGHAM: Objection. Relevance. 12 MR. HERRICK: Mr. Chairman, there were questions 13 regarding the AFRP flows and, I believe, the panel testified 14 that other additional purchases were going to be attempted 15 to be made to help mimic the hydrology of the various 16 tributaries. They did not say that would necessarily be a 17 given, but they said that is what is going to be tried to be 18 done. 19 I think it is appropriate to ask these experts on the 20 effects of the fisheries which one of those flows is the 21 correct one since that is exactly what we are talking about. 22 C.O. STUBCHAER: Mr. O'Laughlin, welcome back, sir. 23 MR. O'LAUGHLIN: Thank you, Chairman Caffrey. 24 The question is fine as long as we get clear what we 25 are talking about with regards to AFRP. Because the 3490 01 biologist did talk about separate AFRP documents. I just 02 want to make it clear on the record what AFRP documents we 03 are talking about. 04 C.O. CAFFREY: Give us your interpretation. 05 MR. HERRICK: I agree with that. Let me give a couple 06 foundational questions. 07 C.O. CAFFREY: Proceed. 08 MR. HERRICK: For both of the panel. Is it correct to 09 say that the AFRP program anticipates purchases or 10 acquisitions of water such that the flows on the tributaries 11 and Vernalis are greater than those anticipated in the 1995 12 Water Quality Control Plan? 13 MS. GOUDE: I can't answer the AFRP flows. I have not 14 worked, per se, on that. It would be Mr. Guinee. 15 MR. GUINEE: My understanding and working through the 16 water acquisition program was that we would attempt to buy 17 water for anadromous fish restoration needs. 18 MR. HERRICK: But were those flows supposed to be in 19 addition to the flows that would exist if the 1995 plan 20 would be implemented? I am asking because that is my 21 understanding. Maybe I am wrong. 22 MR. GUINEE: I think when you look at the AFRP flows 23 and the Water Quality Control Plan, it would depend on how 24 the Water Quality Control Plan is implemented, first of all, 25 and then the result or consequence of what those tributaries 3491 01 flows and contributing to Water Quality Control Plan would 02 be. Then the AFRP program would evaluate what further 03 acquisition needs there are. And we would then seek to 04 acquire water to help with habitat restoration of anadromous 05 fish in those streams. 06 MR. HERRICK: In some instances, then, is that -- would 07 that be flows in addition to the flows specified in the 1995 08 Water Quality Control Plan? 09 MR. GUINEE: It very well could be, especially in the 10 fall. There is -- the '95 Water Quality Control Plan 11 addresses primarily the spring period, February through 12 June. 13 MR. HERRICK: Let me try to coach these in order of 14 decreasing amounts. AFRP flows in some instances can or 15 will be in amounts greater than the '95 plan amounts; is 16 that correct? 17 MR. GUINEE: I think that is what I said. We would 18 look at how the Board implements the Water Quality Control 19 Plan. See what that consequence is for the tributaries, 20 and then look at acquiring additional water if the need is 21 there. 22 MR. HERRICK: The next amount in decreasing amount 23 would be the '95 plan flows. This is my construct. In 24 other words, if the AFRP flows could be more, I am labelling 25 that as most, okay. Next step down in amounts would be the 3492 01 '95 plan. If those flows were implemented, the next step 02 down would be the VAMP flows, according to the VAMP document 03 which specifies different levels of flow depending on 04 existing flow. Correct? 05 MR. GUINEE: Are you asking a question or providing 06 testimony? 07 MR. HERRICK: I am laying a foundation for that earlier 08 question. 09 MR. BRANDT: Vague as time of the year. 10 MR. GUINEE: Your construct is your construct. I am 11 not following it that well, because it is not my construct. 12 MR. HERRICK: Do you have an understanding -- 13 C.O. CAFFREY: Mr. Herrick. Mr. O'Laughlin. 14 MR. O'LAUGHLIN: I go back to my original objection. 15 Still haven't gotten clear what AFRP he is talking about in 16 the document. The second thing is the VAMP flows are 30-day 17 pulse flow periods. They don't equate to the 1995 Water 18 Quality Control Plan because that encompasses the entire 19 year. We are mixing and matching different time periods and 20 different flow periods in the question, and it is very 21 ambiguous and very confusing as to -- 22 C.O. CAFFREY: I tend to agree with that. I expect 23 that -- I was sort of sensing that the witness was having 24 some difficulty with it, too. 25 Am I right, Mr. Guinee? 3493 01 MR. GUINEE: Yes, sir. 02 C.O. CAFFREY: I don't want to tell you not to try 03 another version of it. You certainly may, Mr. Herrick. 04 MR. HERRICK: Certainly. 05 C.O. CAFFREY: As a matter of fact, let me ask you 06 something else, not to break your train of thought. It is 07 about time for a break, how much more time do you need? 08 MR. HERRICK: Ten minutes at most. I think I can 09 finish in a short amount of time, if you want to take a 10 break after I am done. 11 C.O. CAFFREY: Sure. You want to keep going. We will 12 take a break about 20 to 11. Go ahead. 13 MR. HERRICK: Mr. Guinee, let's look at the pulse flow 14 period. It is my understanding, pursuant to the biological 15 opinion for -- maybe this is the Delta smelt opinion. 16 Excuse me. The biological opinion for the Delta smelt talks 17 about during the pulse flow period additional purchases in 18 order to keep the export pulse rate through a calculation to 19 keep the export rate in some sort of lower state than the 20 flows coming down at Vernalis; is that correct? 21 MS. GOUDE: That is right. It is a 50 percent. 22 MR. HERRICK: Under the AFRP, could there be times when 23 those additional purchases are made during that pulse flow 24 period under AFRP? 25 MR. GUINEE: Referring to the specific 31-day period? 3494 01 MR. HERRICK: Yes. 02 MR. GUINEE: There is possibilities of additional 03 purchases maybe on a Sacramento side, but I think for the 04 San Joaquin side the San Joaquin River Agreement and 05 adaptive management program already includes water 06 acquisition and water purchases in that program. 07 MR. HERRICK: Okay. So it is your understanding that 08 the Bureau of Reclamation will not be making additional 09 purchases on the San Joaquin River system during the 31-day 10 pulse flow above and beyond whatever the Board adopts here? 11 MR. GUINEE: During the 31-day period, that is my 12 understanding. As I mentioned earlier, possibly outside 13 that period there may be a need for flows that are not 14 addressed, either by the adaptive management program, the 15 Vernalis Adaptive Management Program, or the Board's Water 16 Quality Control Plan. 17 MS. GOUDE: I need to clarify. The biological opinion 18 basically stays in place as a document that is there 19 irrespective of the agreement, and those provisions that are 20 in that biological opinion still would be met by the Bureau 21 and DWR, irrespective. 22 C.O. CAFFREY: Mr. Nomellini. 23 MR. NOMELLINI: May I ask that we identify which 24 biological opinion. 25 MS. GOUDE: The OCAP opinion. 3495 01 MR. NOMELLINI: Thank you. 02 MR. HERRICK: Mr. Chairman, maybe the witnesses aren't 03 the right people to ask these comparisons. 04 I would like to ask are these biologists going to be 05 available for Phase II-A when we are comparing VAMP and all 06 the other proposals? 07 MR. BRANDT: If you request and identify a topic that 08 they would be testifying on, and they are the ones who would 09 be knowledgeable about that, then yes. 10 MR. HERRICK: One last question, Ms. Goude. You 11 referred to other documents, estuarian documents, I think 12 you said, I am not -- that supported the idea of this 13 diversity of flows. 14 Are those written by the Fish and Wildlife Service, 15 also, or by other people? 16 MS. GOUDE: They are just ecological text, talks about 17 estuaries within the system. 18 MR. HERRICK: I have no further questions. 19 C.O. CAFFREY: Let's take that 12- to 15-minute break. 20 (Break taken.) 21 C.O. CAFFREY: We are back on the record. 22 I believe we were going to go to -- we finished Mr. 23 Herrick. 24 Mr. Etheridge, are you prepared to cross-examine? 25 MR. ETHERIDGE: I am. 3496 01 C.O. CAFFREY: You are up, sir. 02 ---oOo--- 03 CROSS-EXAMINATION OF THE DEPARTMENT OF THE INTERIOR 04 BY EAST BAY MUNICIPAL UTILITY DISTRICT 05 BY MR. ETHERIDGE 06 MR. ETHERIDGE: Good morning, Mr. Caffrey and members 07 of the Board. 08 C.O. CAFFREY: Good morning, sir. 09 MR. ETHERIDGE: For the record, I am Fred Etheridge 10 representing East Bay Municipal Utility District or EB MUD 11 for short. 12 I want to start with a few questions for Ms. Goude on a 13 familiar topic, the natural hydrograph. 14 If I am correct in understanding, it is your opinion 15 that that natural hydrograph theory should apply to the 16 Mokelumne River as a Delta tributary; is that correct? 17 MS. GOUDE: Correct. 18 MR. ETHERIDGE: The theory would also apply to the 19 Sacramento River as a Delta tributary? 20 MS. GOUDE: In concept, yes. 21 MR. ETHERIDGE: That it would also in concept apply to 22 the San Joaquin River as a Delta tributary? 23 MS. GOUDE: True. 24 MR. ETHERIDGE: And it is your opinion that a 25 tributary's proportional contribution to the Delta inflow 3497 01 should mimic the natural hydrograph? 02 MS. GOUDE: Where possible. 03 MR. ETHERIDGE: Let me give you a series of 04 hypotheticals just to see if I understand this. Suppose the 05 unimpaired inflow into Pardee Reservoir on the Mokelumne 06 River was zero in August, September and October of 1988, is 07 it your opinion, then, that to mimic the natural hydrograph, 08 releases from Comanche Reservoir should be zero? 09 MS. GOUDE: What I had stated, that I have been 10 providing this as a concept, and I said that it is much more 11 complicated and that you have to look at the physical 12 constraints, the water year types, the species involved and 13 the various constraints for other fishery resources, 14 because you can't look at the Mokelumne in isolation 15 necessarily from the other systems. And so I really won't 16 -- can't answer on a hypothetical whereas to zero flow. 17 MR. ETHERIDGE: If you plan to use or the concept is to 18 use the natural hydrograph and to mimic that natural 19 hydrograph for studying the Mokelumne flows; is that 20 correct? 21 MS. GOUDE: I said that that would be your starting 22 point. But then you need to look at the actual stream that 23 you are looking at, the constraints, the water year types, 24 the temperature effects that are downstream, the carryover 25 storage, how you would implement that in conjunction with 3498 01 other portions of the system. I mean, if there is one thing 02 that, I guess, I have learned in having to deal with 03 approximately three consultations on the operations of the 04 Central Valley Project is that when you deal or tweak with 05 one stream, it tweaks a lot of other ones, and that you have 06 to look at the system as a whole. 07 MR. ETHERIDGE: Focusing on the Mokelumne and the 08 natural hydrograph, suppose there were times under the 09 natural hydrograph where there was no inflow into Pardee 10 Reservoir, at those times would it be your opinion not to 11 mimic the natural hydrograph, to move off the natural 12 hydrograph? 13 MS. GOUDE: I would imagine that there were times in 14 historical conditions if that is a zero runoff, there was 15 probably zero runoff in the natural hydrograph. In the OCAP 16 biological opinion, for example, we recognized that in 17 extremely critical years, in 1976 and '77, that basically 18 all the rules of principles for the biological opinions 19 didn't apply anymore because the system was bust and you had 20 to look at operating the system on those years based on kind 21 of a real time scenario and what you could do to help deal 22 with water issues as well as fishery issues. So, you have 23 to use some practical judgment when it gets to an 24 implementation phase based on constraints. 25 MR. ETHERIDGE: It is not an absolute mimicking of the 3499 01 natural hydrograph, then? 02 MS. GOUDE: Well, no, it wouldn't be. But except for 03 that I would bet that in historic conditions that if there 04 was a possibility inflow into Pardee, you may have had zero 05 inflow under the natural hydrograph also. And I am not a 06 hydrologist, I am speculating. 07 MR. ETHERIDGE: If that were true, if there were zero 08 inflow into Pardee and down the river, would it be your 09 opinion that EB MUD's contribution for Bay-Delta in this 10 proceeding, based upon your theory of mimicking the 11 hydrograph, would be zero at those times? 12 MS. GOUDE: I think you would need to look at what you 13 have to deal with within the system and what the carryover 14 for Pardee and what's going on within the whole system. I 15 mean, there are issues that have to deal with carryover 16 storage or if you have carryover storage or whether it was a 17 really wet year the year before and how full Pardee is and 18 what the temperature is. I mean, there is a lot of things 19 that should go into the analysis. I wish it was simple. 20 MR. ETHERIDGE: In other words, you would modify the 21 natural hydrograph to come up with a flow recommendation? 22 MS. GOUDE: If it's appropriate and at those places, 23 yes. 24 MR. ETHERIDGE: To give you another hypothetical, 25 suppose the tributaries watershed has a significant storm 3500 01 event in December or January and that the precipitation 02 falls as rain, not snow, so the runoff is very quick to the 03 lower watershed, so under the natural hydrograph there is a 04 very large spike in the runoff. 05 Is it your opinion that that tributary's watershed or 06 inflow to the Delta should similarly surge to mimic the 07 natural hydrograph? 08 MS. GOUDE: Well, I don't think I would want to say 09 that, especially if that is a flood control dam that's a 10 part of the operation. I think you -- I mean, you need to 11 -- what I have said repeatedly is that this is a concept 12 that Interior's -- Mr. Brandt's earlier position and, you 13 know, I concur that the water rights is a first appropriate 14 step, but that you need to be looking at the fair share and 15 mimicking the hydrograph through time. It is a lot of 16 complicated issues that you have to take into effect. 17 Unfortunately, I think my cross or my questions are 18 being asked to me to be very simple, and it is not a simple 19 system or situation. 20 MR. ETHERIDGE: Are you aware that fall-run chinook 21 salmon spawn in some Central Valley tributaries between 22 October and November? 23 MR. GUINEE: Yes, I am. 24 MS. GOUDE: Yes. 25 MR. ETHERIDGE: After the salmon spawn, their eggs 3501 01 reside in the gravel for a period of time; is that correct? 02 MR. GUINEE: That's correct. 03 MR. ETHERIDGE: And then later the salmon fry emerge 04 from their reds; is that correct? 05 MR. GUINEE: That's correct. 06 MR. ETHERIDGE: Are you aware that newly emerged eggs 07 can be flushed from the tributary to the Delta if tributary 08 flows are too high? 09 MR. GUINEE: Yeah. There is evidence that newly 10 emerged fry can be transported to the Delta under high flows. 11 MR. ETHERIDGE: Can the same be said of eggs? Can eggs 12 be washed from the reds if tributary flows are to high? 13 MR. GUINEE: The potential is there if the flows are 14 high enough to move the gravel and dislodge eggs that are 15 generally 12 to 18 inches below the surface. 16 MR. ETHERIDGE: Is it detrimental to the survival of 17 fall-run chinook salmon eggs to be flushed from the 18 tributary to the Delta prior to the time the eggs hatch? 19 MR. GUINEE: Yes, that would be detrimental. 20 MR. ETHERIDGE: And is it detrimental to the survival 21 of young salmon fry to be flushed from the tributary to the 22 Delta just days after they have emerged from their reds? 23 MR. GUINEE: That is not as clear. There have been 24 studies done using code wire tagging of smaller fish, fry 25 size fish, to try to get more information on how chinook 3502 01 salmon rear in the Delta compared to the river. 02 MR. ETHERIDGE: Back to mimicking the natural 03 hydrograph. If you had that large storm event, say, in 04 December when salmon eggs are in the reds, would it still be 05 your opinion to mimic the natural hydrograph on the 06 tributary even if that meant flushing the eggs into the 07 Delta? 08 MR. GUINEE: I would say just what Ms. Goude said 09 earlier, what we are talking about here is the general 10 concept, the ecological fair share of all watersheds and 11 tributaries participating, helping meet the Water Quality 12 Control Plan with an approach that would tend to mimic the 13 natural hydrograph. 14 Now, the hypothetical that you are presenting seems to 15 be going back to historical condition, where, if you didn't 16 have dams, then you would see those fall storms and the peak 17 flows as a result end up in the Delta. 18 That is not what we are advocating. I concur with what 19 Ms. Goude said; there is a lot of considerations with the 20 concept of mimicking the natural hydrograph relative to the 21 conditions she mentioned. I won't repeat them all. 22 MS. GOUDE: I would like to respond. I think you have 23 to look at two things. I mean, you have to, obviously, get, 24 rear the salmon, but you also have to move them out through 25 the system. So both factors are equally important. And 3503 01 when I was saying before on the mimicking the hydrograph, 02 you would look at the implementation. You would need to 03 look at implementation and all the factors. 04 For example, when we were working on Delta smelt, we 05 had to work in concert with that National Marine Fishery 06 Service to deal with the biological needs of winter-run and 07 how carryover storage in Shasta was needed for temperature 08 control. That is something that is commonly done and would 09 have to be done in every situation. 10 MR. ETHERIDGE: Mr. Guinee mentioned a minute ago that 11 there are dams on the rivers and that is different from the 12 natural condition, and I think we all agree with that. But 13 as I understand the story of mimicking the natural 14 hydrograph, you would apply that to dams on tributaries so 15 that their releases would mimic the natural hydrograph. Is 16 that correct? 17 MR. GUINEE: Yeah. The concept has to do with 18 mimicking the natural hydrograph downstream of the dam 19 during particularly the spring period. During the fall 20 period, you may have a different management approach for 21 chinook salmon, as an example, where you want to provide 22 adequate flows for spawning and the incubation of eggs as 23 you mentioned earlier. 24 MR. ETHERIDGE: So you wouldn't mimic the hydrograph 25 year-round? 3504 01 MR. GUINEE: Again, you would consider all the 02 variables, the water supply, et cetera, and you may or may 03 not month by month mimic it in each and every month. 04 MR. ETHERIDGE: Just to make sure if I understand where 05 we are so far, if you were mimicking the natural hydrograph 06 where the natural hydrograph went to zero, under your theory 07 you wouldn't necessarily want dams on tributaries releasing 08 to zero; in other words, you wouldn't want to actually mimic 09 the natural hydrograph. Is that correct? 10 MR. GUINEE: Personally, I would not. But I would 11 repeat what Ms. Goude said: there would be a lot of factors 12 considered in the mimicking of the natural hydrograph. When 13 you get into extreme critical years, you look at more of a 14 real-time situation. You don't make decisions and lock into 15 a situation that is going to harm the stream and water 16 supply, et cetera, to a great extent. 17 MS. GOUDE: I guess I would like to respond that you 18 can't look at everything in a vacuum. It has to be looked 19 at how it is, what fish you are dealing with and what 20 aquatic resources. Obviously, we are dealing with 21 biological issues, and there is a lot of other weighting 22 factors that may come in to play. In certain streams there 23 is water quality conditions or constraints. There is a lot 24 of other factors as it relates to supply, and we are 25 providing one aspect of that information. 3505 01 MR. ETHERIDGE: So we have talked about when the 02 natural hydrograph is at zero and that would be modified. 03 And then if you have large storm events which could flush 04 eggs and fry, you might modify the hydrograph there. 05 What if you had that large storm event, say, in 06 December and the runoff quickly recedes. In other words, 07 under the natural hydrograph, the very high peak and you 08 have my week and the runoff quickly recedes, if that had the 09 potential to dewater reds, the dam on that tributary were to 10 mimic the natural hydrograph, would it be your opinion to 11 mimic the natural hydrograph? 12 MS. GOUDE: I think what you need to look at is not 13 just whether -- you know, I got a lot of questions about the 14 proportion. I think you need to look at what is most 15 important at that point. If you do not have the fish or the 16 ability to move them out of the system, whether or not the 17 eggs hatch or not is not as significant. You have to look 18 at the overall basic life cycle that you are trying to 19 protect and what the biggest bang for your buck on dealing 20 with the operation is. 21 As I said, you have to be practical in what your 22 recommendations are, and they have to be reasonable and they 23 have to be available to be implemented. This is simply 24 stating starting with the natural hydrograph or mimicking 25 it, it is just your beginning step. There is a lot more 3506 01 analysis that needs to be done. 02 MR. ETHERIDGE: So it could be significantly modified 03 after that beginning step? 04 MS. GOUDE: I am not saying -- I am not going to put an 05 adjective or descriptor in it. But it would be modified 06 based on practical conditions and constraints within the 07 system as it relates to others. 08 MR. GUINEE: I guess I would add I am not sure the 09 hypothetical is even useful because each situation would be 10 evaluated on a case-by-case basis. It is not a simple 11 system. It is very complex, so very many variables would be 12 considered. 13 MR. ETHERIDGE: I would agree that the Delta system is 14 complex. Talking here about the Mokelumne settlement and 15 flows contained in that MOU, and the testimony is that East 16 Bay MUD's Delta share as opposed to its Lower Mokelumne 17 share, should be based on mimicking the hydrograph. So, my 18 questions are focusing on the Mokelumne hydrology. 19 When it's at zero, what is your opinion on what East 20 Bay MUD's Delta share should be? And my understanding is 21 that it shouldn't be zero, it will be modified somehow; is 22 that correct? 23 MS. GOUDE: What I would say is that would be something 24 that you should have as an analysis and what you actually 25 have for a lot of other things. To just say it is zero, you 3507 01 would need to know what happened the year before, what the 02 carryover, what the return is. What -- there is a lot of 03 other factors. 04 MR. GUINEE: I would agree. 05 MR. ETHERIDGE: Ask some questions on Delta smelt. 06 Have you studied the relative relationship between the tidal 07 influences where the Mokelumne enters the Delta and 08 Mokelumne flows at that point? 09 MS. GOUDE: I have not studied it, but I have only 10 seen, as I stated earlier, some preliminary studies that 11 people have been doing on particle tracking and some 12 information. 13 MR. ETHERIDGE: Do you know the magnitude of the tidal 14 influx in the Delta? 15 MS. GOUDE: It's fairly large and significant. I am 16 not disputing that. 17 MR. ETHERIDGE: Do you know that the State Board's EIR 18 for this proceeding has a figure average of 170,000 cfs for 19 inflows? 20 MS. GOUDE: That is similar to the figures that I have 21 been seeing in different studies. 22 MR. ETHERIDGE: Given the magnitude of that influx, do 23 you have an opinion on what impact, if any, Mokelumne River 24 flows could have to the Delta, or would they be overwhelmed 25 by that large tidal influx? 3508 01 MS. GOUDE: As I stated earlier, they provide 02 contribution and habitat in portions of the eastern streams. 03 It appears that certain fish have certain movements 04 irrespective of just the tidal influence. I guess if you 05 went by the perception that the only thing that matters on 06 the tides is that no outflow would be important. 07 MR. ETHERIDGE: If the Delta cross channel is open, how 08 does that affect the transport of the Delta smelt in the 09 area of the Delta where the Mokelumne river passes by the 10 cross channel? 11 MS. GOUDE: I think it -- as I think I have stated 12 previously, operations with the cross channel depends on the 13 water year type, the distribution of smelt, whether -- a lot 14 of other factors, including export rate. So I really can't 15 answer that. I mean, it can have different effects based on 16 different scenarios. 17 MR. ETHERIDGE: Could one of those effects be the cross 18 channel open and the project pumps operating, that any flows 19 in the Mokelumne would simply be directed south in the Delta? 20 MS. GOUDE: Yeah. 21 MR. ETHERIDGE: Delta smelt are not located in the 22 Mokelumne River above Woodbridge Dam; is that correct? 23 MS. GOUDE: That is my understanding. 24 MR. ETHERIDGE: I believe that you testified that the 25 Fish and Wildlife Service biological opinion in the FERC 3509 01 proceedings in March 1998 on EB MUD settlement flows 02 examined whether those settlement flows would cause jeopardy 03 to Delta smelt; is that correct? 04 MS. GOUDE: It was simply on the settlement flows on 05 the Lower Mokelumne; yes, that is correct. 06 MR. ETHERIDGE: That opinion concluded no jeopardy; is 07 that correct? 08 MS. GOUDE: That is correct. 09 MR. ETHERIDGE: I believe you testified that the 10 biological opinion dealt only with the Mokelumne River and 11 not the Delta; is that correct? 12 MS. GOUDE: What it discussed is the biological -- the 13 biological opinion has to talk about base conditions and the 14 effects of the Delta smelt as it relates to the overall 15 system and describes the cumulative effect. Any biological 16 opinion that deals with Delta smelt, even if it is outside 17 the area, goes within the Delta for base conditions, 18 existing condition, cumulative effect. 19 So, the biological opinion's a fairly lengthy 20 document, and it has a lot of background information on the 21 species. Yes, it does talk about the Delta, but the project 22 description and the information that we were consulting on 23 had to deal with the FERC settlement agreement on the Lower 24 Mokelumne as defined in your agreement. 25 MR. ETHERIDGE: If there are no Delta smelt in the 3510 01 Mokelumne River above Woodbridge Dam, in the biological 02 opinion that the Fish and Wildlife Service was examining 03 East Bay MUD settlement flows and whether they would 04 jeopardize Delta smelt, didn't Fish and Wildlife, by 05 definition, have to look at EB MUD's settlement flows in the 06 Delta because that is where the Delta smelt are located and 07 not in the Mokelumne River? 08 MS. GOUDE: What the Service has to look at is 09 interrelated and interdependent effect and the interrelated 10 and interdependent effect as it goes into the Delta. And 11 because we refer to State Board proceedings and that the 12 scope of FERC's consultation, basically, ended at 13 Woodbridge, it limited the terms and conditions or the 14 effects. 15 I guess what you could say is the Service's biological 16 opinion could have tried to go further than the project 17 description, but I don't think that is appropriate, 18 regulatorilywise. 19 MR. ETHERIDGE: That is what I am trying to 20 understand. If Delta smelt reside in the Delta, but not in 21 the Mokelumne River above Woodbridge Dam, correct? 22 MS. GOUDE: Correct. 23 MR ETHERIDGE: And you did a biological opinion that 24 found that East Bay MUD settlement flows don't jeopardize 25 Delta smelt, didn't you necessarily have to look at the 3511 01 impact of East Bay MUD settlement flows in the Delta because 02 that is where the smelt are? 03 MS. GOUDE: We did not. We did not have the biological 04 assessment or the analysis to deal with the Delta issues. 05 If we had a project description to deal with that, that is 06 what we should have done. 07 MR. ETHERIDGE: A few questions for Mr. Guinee. If I 08 could get the screen pulled down. I wanted to use an 09 overhead. 10 Roger, what I wanted to use was your DOI Exhibit 9-B, 11 the overhead. 12 MR. GUINEE: I can put it up. 13 C.O. STUBCHAER: I have a question. 14 C.O. CAFFREY: Mr. Stubchaer. 15 C.O. STUBCHAER: I would like to go back to the 16 previous question about the biological opinion, finding that 17 there was no jeopardy on the project on the Mokelumne below 18 Woodbridge Dam. And the answer to the question: Does that 19 conclude the Delta smelt matter as far as the Mokelumne 20 Agreement is concerned or is it still opened? 21 MS. GOUDE: No. The biological opinion was only on the 22 project description, and it was above Woodbridge. It 23 discussed the issues and said that it wasn't analyzed, that 24 it talks about it, but it didn't deal with or FERC chose or 25 the scope of our consultation was only on the Lower 3512 01 Mokelumne above Woodbridge. 02 C.O. STUBCHAER: Mr. Etheridge, what was your reference 03 to some finding that there was no impact on the Delta smelt? 04 What document was that? 05 MR. ETHERIDGE: It is the biological opinion which I 06 believe Ms. Goude testified it concludes there is no 07 jeopardy to Delta smelt as a result of East Bay MUD 08 settlement flows. 09 Is that correct? 10 MS. GOUDE: As it relates to the project description 11 which we consulted on, which only deals with the one 12 portion. But it also describes in detail that the Delta was 13 not considered in the joint settlement agreement discussion, 14 and the flows identified in the settlement agreement were 15 not developed for fishery sources in the Delta. 16 Therefore, the FERC proceeding does not include the 17 Delta requirement, and those issues will be set aside for 18 the State Water Resources Control Board hearings concerning 19 water rights in the Delta and the relationship to Delta 20 water quality standards. That is what the opinion is, its 21 scope. 22 C.O. STUBCHAER: So, there is no jeopardy to Delta 23 smelt because they don't exist in that reach of the river? 24 MS. GOUDE: We, basically, had the interrelated effects 25 of those. And FERC asked us to consult to a very narrow 3513 01 scope of the project. I mean, people can dispute whether 02 the Service could have extended our consultation on a 03 regulatory basis further, but we view that you could not do 04 that. 05 C.O. CAFFREY: Thank you, Mr. Stubchaer. 06 Mr. Maddow. 07 MR. MADDOW: This is the second time during this 08 hearing when I have gotten up on a point like this. I feel 09 as though others besides perhaps Mr. Etheridge, Mr. Brandt 10 and Mr. Gallery are kind of trying to understand a mystery 11 document here. I looked at the exhibit identification 12 indices which I have, and I couldn't find that that 13 biological opinion is in anybody's evidence. We have heard 14 portions of it read into the record, at least three times in 15 the last two days, I think. 16 Mr. Gallery was kind enough to loan me and Mr. Minasian 17 a copy of the document to look at for the first time just a 18 few moments ago. I would like to suggest to the Board and 19 actually make a request of Mr. Brandt that that document be 20 made a part of the record of this proceeding. 21 It sounds like a biological opinion which is different 22 than any other one that I have ever seen. I think it is 23 relevant. 24 C.O. CAFFREY: I think that is a point well made. Ms. 25 Leidigh, I don't know if Mr. Brandt wants to make that part 3514 01 of his evidentiary exhibit package because he hasn't up till 02 now. 03 MR. BRANDT: I was not planning to do that. 04 C.O. CAFFREY: We can certainly do that ourselves, can 05 we not? 06 MS. LEIDIGH: The Board could do it or the 07 cross-examiner could do it. 08 C.O. CAFFREY: Mr. Campbell. 09 MR. CAMPBELL: I believe under the Board's regulations 10 for the conduct of these proceedings Mr. Maddow can request 11 that the Board take official -- what the Board refers to as 12 official notice of the document because it clearly is an act 13 of a government agency that would fit within the 14 requirements for that position. 15 It is a suggestion. 16 C.O. CAFFREY: This, Ms. Leidigh, I interrupted you. 17 Please proceed to what your recommendation is in terms of an 18 action on our part, because I think Mr. Maddow makes a good 19 point. There has been several references to this document. 20 It's been used for part of the direct. We ought to have it 21 in the record, I think. 22 MS. LEIDIGH: Right. As Mr. Campbell says, it could be 23 either as a document in the record, piece of evidence or 24 officially noticed. Either way we are going to have a copy 25 of it. 3515 01 MR. MADDOW: And parties would like a copy and taking 02 official notice of it would not necessarily satisfy -- 03 C.O. CAFFREY: Let's give it the full weight of an 04 evidentiary exhibit. Who should offer it? Can we do it 05 ourselves, make it part of our package or should we allow 06 Mr. Maddow to introduce it? What do you recommend, Ms. 07 Leidigh? 08 MR. MADDOW: We'd love to introduce it, but I don't 09 have it and I am not sure -- 10 C.O. CAFFREY: Kind of hard to do when you don't have a 11 copy. 12 MS. LEIDIGH: Staff doesn't have a copy, either. 13 C.O. CAFFREY: Who does have a copy? 14 Mr. Etheridge, do you have a copy of it? 15 MR. ETHERIDGE: Yes, I do. 16 C.O. CAFFREY: Why don't you -- you want to make that 17 part of your -- you want to propose it as an exhibit as part 18 of your cross-examination? That would solve our problem, I 19 believe; is that correct? 20 MS. LEIDIGH: Yes, it would. 21 C.O. CAFFREY: You do that, then everybody would have 22 access to it and then we can -- Ms. Leidigh who takes 23 responsibility for getting copies to everybody? 24 MS. LEIDIGH: If it his exhibit, it would be his 25 responsibility. 3516 01 C.O. CAFFREY: I think I see the problem. A little 02 slow on the uptake this morning. 03 MR. ETHERIDGE: That is not a problem. I think it 04 would be EB MUD Exhibit Number 11. 05 C.O. CAFFREY: We appreciate that, Mr. Etheridge. We 06 will consider it accepting it into the record when we finish 07 this phase, along with Mr. Lilly's exhibit and the direct 08 testimonial exhibits. 09 Please proceed, Mr. Etheridge. Sorry about the 10 interruptions. 11 MR. ETHERIDGE: No problem. 12 C.O. CAFFREY: All in good cause. 13 MR. ETHERIDGE: Mr. Guinee, did you prepare DOI Exhibit 14 9-B? 15 MR. GUINEE: Yes. I had it prepared for me. 16 MR. ETHERIDGE: Is that what is projected on the 17 overhead now? 18 MR. GUINEE: Yes. 19 MR. ETHERIDGE: That is a graph; isn't that correct? 20 MR. GUINEE: That is a graph; that's correct. 21 MR. ETHERIDGE: That graphs depicts five different sets 22 of flows; isn't that correct? 23 MR. GUINEE: Correct. 24 MR. ETHERIDGE: One of those sets of flows is labeled 25 "Unimpaired 21-94 at Pardee"; is that correct? 3517 01 MR. GUINEE: That's correct. 02 MR. ETHERIDGE: What is the source of data you used to 03 plot the graph points labeled as "Unimpaired 21-94 at 04 Pardee"? 05 MR. GUINEE: That comes from an update of the 06 California Central Valley unimpaired flow data. The one I 07 have in front of me is the third edition, dated August '94, 08 and our hydrologist then went, I think, via the Internet to 09 some of the Department of Water Resources data to update it 10 through '94. 11 MR. ETHERIDGE: So, it is DWR data? 12 MR. GUINEE: Correct. 13 MR. ETHERIDGE: When you refer to Unimpaired 21-94 at 14 Pardee, where is that Pardee measuring point located? 15 MR. GUINEE: I am not familiar with the exact 16 measurement location. 17 MR. ETHERIDGE: Do you know if it is upstream of Pardee 18 Reservoir? 19 MR. GUINEE: My understanding is that it is. 20 MR. ETHERIDGE: DOI Exhibit 9-B also depicts four other 21 sets of flows; is that correct? 22 MR. GUINEE: That's correct. 23 MR. ETHERIDGE: For the flows labeled Alternative 5 AN, 24 where is the measuring point for those flows? 25 MR. GUINEE: Alternative 5 AN refers to the State 3518 01 Board's Draft EIR for the Alternative 5 above normal flows 02 found, I believe, it was Table 2-7. It was the one we were 03 talking about yesterday. So it is a modeling flow. 04 MR. ETHERIDGE: Do you know where the flow is measured? 05 MR. GUINEE: My understanding it was a modeling 06 exercise done for the purposes of that document. So it is a 07 forecast-type model. I don't know that -- I am not aware of 08 where it is measured. 09 MR. ETHERIDGE: Can you tell me where the flows for 10 Exhibit 9-B's MOU AN are measured? 11 MR. GUINEE: My understanding for the MOU flows, that 12 those measurements are below Woodbridge Dam on the Mokelumne 13 River. 14 MR. ETHERIDGE: Would that also be true for the MOU 15 critical data points plotted on Exhibit 9-B? 16 MR. GUINEE: That is my understanding. 17 MR. ETHERIDGE: So to summarize, Exhibit 9-B plots 18 different sets of flows. One of those labeled Unimpaired 19 Flow at Pardee, which is measured at one place above Pardee 20 Reservoir on the Mokelumne River, and then two MOU sets of 21 flows that are measured at different locations below 22 Woodbridge; is that correct? 23 MR. GUINEE: That is correct. 24 MR. ETHERIDGE: Do you know how many miles it is 25 between the measuring point of the inflow to Pardee and the 3519 01 measuring point below Woodbridge Irrigation District Dam? 02 MR. GUINEE: I know it is quite a few miles, and I know 03 there is quite a few diversions in those miles. I think 04 that is why we use the unimpaired at Pardee to avoid the 05 influence of the diversions affecting our unimpaired 06 hydrology. 07 MR. ETHERIDGE: Do you know that the distance between 08 those two measuring points is approximately 45 river miles? 09 MR. GUINEE: I will take your word for it. 10 MR. ETHERIDGE: Are you aware that there are channel 11 losses in the Mokelumne between the measuring point above 12 Pardee Reservoir and Woodbridge Irrigation District Dam? 13 MR. GUINEE: I will take your word for that. 14 MR. ETHERIDGE: Doesn't Exhibit 9-B compare apples and 15 oranges? In other words, you are comparing unimpaired flow 16 at Pardee at a point measured above the reservoir and other 17 flow regimes have measured at a substantial distance 18 downstream. 19 MR. GUINEE: As I said in my testimony, I used this as 20 an indicator of trends in river flows and to illustrate a 21 concept of ecological fair sharing in mimicking the natural 22 hydrograph. So, no, it does not compare apples and oranges. 23 MR. ETHERIDGE: DOI Exhibit 9-B depicts unimpaired 24 flow at Pardee. That is the average unimpaired flow over a 25 70-odd-year period; is that correct? 3520 01 MR. GUINEE: That is correct. 02 MR. ETHERIDGE: By averaging unimpaired flow over a 03 70-year period, don't you eliminate the natural variability 04 in the hydrology that actually occurs from year to year? 05 MR. GUINEE: Yes, you do. 06 MR. ETHERIDGE: If you were to plot the unimpaired 1921 07 to 1994 flows at Pardee for critically dry years only on 08 Exhibit 9-B, wouldn't the graph line be substantially lower 09 than the 70-year average that you now have plotted on that 10 graph? 11 MR. GUINEE: I believe it would. 12 MR. ETHERIDGE: When you are comparing different flow 13 regimes, isn't it appropriate to compare a critical year 14 flow regime to critical unimpaired flows for that year? 15 MR. GUINEE: That would be helpful. You can do a lot 16 more analysis than I did here. I just did a simple 17 comparison for purposes of Phase IV of this hearing. 18 MR. ETHERIDGE: Are you aware that the average 19 unimpaired flow in critically dry years in June on the 20 Mokelumne River above Pardee is approximately 630 cfs? 21 MR. GUINEE: I haven't done that comparison with the 22 critical year flows or wet year flows, for that matter. 23 MR. ETHERIDGE: Looking at Exhibit 9-B, at the bottom 24 of the exhibit there is a table; is that correct? 25 MR. GUINEE: Are you referring to the numbers along -- 3521 01 MR. ETHERIDGE: You have months of the year across the 02 top and then five flow regimes on the left; is that correct? 03 MR. GUINEE: Yes. I characterize it as the numeric 04 average cubic feet per second that the graph -- of the 05 graph. I am not sure exactly how to say that. It is not a 06 table, per se. It is just the numbers that resulted in the 07 graph. 08 MR. ETHERIDGE: You have also testified that the State 09 Board's Alternative 5 is, in your opinion, the best 10 representation of a natural hydrograph; is that correct? 11 MR. GUINEE: Right. What I was considering there is 12 that State Board's draft Alternative 5 provides improved 13 flows better than the Mokelumne MOU in terms of contributing 14 Water Quality Control Plan and meeting Board's narrative 15 salmon objective. 16 MR. ETHERIDGE: If you look at the numbers on the 17 bottom of Exhibit 9-B, for the month of June for Alternative 18 5 critical, that lists 815 cfs; is that correct? 19 MR. GUINEE: That is correct. 20 MR. ETHERIDGE: If the average, unimpaired critically 21 dry year low on the Mokelumne River over the 70-year period 22 of record was approximately 630 cfs, assuming that is true, 23 isn't that less than the Alternative 5 critical flow number? 24 MR. GUINEE: It is. And as I testified previously, I 25 wasn't advocating any specific numbers on this Exhibit 9-B. 3522 01 MR. ETHERIDGE: How does Alternative 5 mimic the 02 natural hydrograph if Alternative 5 flows call for more 03 water than is on average there in critically dry years, 04 unimpaired flows? 05 MR. GUINEE: I didn't make that specific comparison? 06 MR. ETHERIDGE: DOI Exhibit 9-B lists of its two sets 07 of flows Alternative 5 AN and Alternative 5 critical; is 08 that correct? 09 MR. GUINEE: That is correct. 10 MR. ETHERIDGE: What studies have you conducted of how 11 Alternative 5 would affect the Mokelumne River? 12 MR. GUINEE: I did not do the studies beyond the 13 comparison that you see here. 14 MR. ETHERIDGE: So, you haven't analyzed the reservoir 15 storage implications that Alternative 5 would have on Pardee 16 and Comanche Reservoirs? 17 MR. GUINEE: That's correct. 18 MR. ETHERIDGE: Are you aware that Alternative 5 would 19 cause depleted reservoir storage levels in Pardee and 20 Comanche Reservoirs during dry periods? 21 MR. GUINEE: I did not do an evaluation of that. 22 MR. ETHERIDGE: Have you examined fishery impacts that 23 would be caused to the Lower Mokelumne River fishery due to 24 the depleted storage levels in Comanche and Pardee 25 Reservoirs resulting from Alternative 5. 3523 01 MR. GUINEE: As I said, I did not do any evaluation of 02 that, either. 03 MR. ETHERIDGE: You also didn't do any evaluation of 04 the customer impacts or Alternative 5? 05 MR. GUINEE: No. I am here as a biological witness. 06 MR. ETHERIDGE: Are you aware that Alternative 5 causes 07 the complete depletion to dead storage in Comanche Reservoir 08 in some years? 09 MR. GUINEE: I did not do that evaluation. 10 MR. ETHERIDGE: Well, assuming that were true, that 11 Alternative 5 caused the complete depletion to dead storage 12 of Comanche Reservoir in some years, would you have an 13 opinion on what impact that would have on the Lower 14 Mokelumne River fishery? 15 MR. GUINEE: As I said, I did not come here to advocate 16 the specific quantities found in Alternative 5. In fact, if 17 I were to advocate quantities, I would probably go back to 18 the Fish and Game report in '91 and the hearing record for 19 the Mokelumne River hearing. 20 MR. ETHERIDGE: In DOI's opening statement for this 21 phase, your counsel stated that the State Board's water 22 right priority approach for Alternative 3 is the most 23 reasonable alternative. 24 Have you analyzed the State Board right priority 25 Alternative 3? 3524 01 MR. GUINEE: Actually, I did not. In the Board's Draft 02 EIR they didn't display Alternative 3 in the same way that 03 Alternative 5 was displayed, so I did not do that analysis. 04 MR. ETHERIDGE: Is Alternative 3 depicted on your 05 graph, DOI Exhibit 9-B? 06 MR. GUINEE: Alternative 3 is not on Exhibit 9-B. 07 MR. ETHERIDGE: If DOI's position that Alternative 3 is 08 the reasonable one, why did you label Alternative 5 as the 09 fair share? 10 MR. GUINEE: That sounds like a two-part question. 11 Could you help me there? 12 MR. ETHERIDGE: You made reference a couple of minutes 13 ago to the DOI's opening statement to this Phase IV, being 14 that water right priority Alternative Number 3 was the most 15 reasonable alternative. If that is DOI's position, why did 16 you label Alternative 5 as the fair share in your Exhibit 17 9-B as originally submitted? 18 MR. BRANDT: Can I just object on the basis that these 19 witnesses are presented not in defense of a policy. They 20 are presenting biological. So, it is going outside the 21 scope of their expertise to defend the policy of balancing. 22 I think that has been clear throughout this testimony. I 23 object on that basis. 24 C.O. CAFFREY: Mr. Brandt, I recognize your objection. 25 It is in the record, but I am hearing from three Board 3525 01 Members up here that they would like to hear the answer. So 02 if the witness has -- give it your best shot. 03 MR. GUINEE: I would say that the opening statement 04 presented by Mr. Brandt speaks for itself. And that as a 05 biological witness, I don't think my testimony contradicts 06 that. In fact, I think it is consistent with the opening 07 statement in terms of considering a stepwise process of 08 including the tributary contributions to meet the Water 09 Quality Control Plan. 10 MS. GOUDE: I view that there is a number of parts of 11 our testimony that seems to have been fogged over the last 12 few days. And one was that one of the principles that I 13 presented in my testimony was the need to contribute from 14 multiple watersheds and sources to have for recovery of, 15 needs of fishes within the Delta. 16 That approach can be reached by probably a number of 17 scenarios and alternatives. Alternative 3, for example, 18 provides an approach. Mr. Brandt's in the Interior's policy 19 didn't say Alternative 3. It said "a water rights 20 approach." 21 It, again, was an approach and a concept. It wasn't 22 articulated in detail. It was basically talking about 23 approach and recognizing the biological needs of the 24 species. Basically, our testimony has been on what we had 25 before us in an EIR and looking at the various alternatives 3526 01 as they relate to some of the principles. And, truthfully, 02 it's not really an Alternative 3 or Alternative 5. There 03 are -- when you get to implementation, there is concepts 04 from both. 05 But Alternative 3 also gets to some of the principles 06 that we were discussing of providing source water and share 07 and mimicking the hydrograph. It doesn't preclude that. It 08 is the same way. And, so, I think it just depends on the 09 examples that we used. In retrospect another alternative or 10 another example would have been good, but this was just 11 providing a trend and information basis. 12 MR. ETHERIDGE: Does Alternative 3 assign flow 13 obligations to tributary parties based on mimicking the 14 natural hydrograph? 15 MS. GOUDE: Alternative 3, as I said, I don't want to 16 be an attorney. I understand it deals with water rights 17 issues, and it may, in fact, serve that same purpose. That 18 is all I am saying. 19 MR. ETHERIDGE: Mr. Guinee, are you aware of the total 20 quantity of water likely to be in the Lower Mokelumne River 21 under EB MUD's settlement flows? 22 MR GUINEE: I guess, in looking at this graph, it would 23 be about 15 cfs in May below Woodbridge, as an example. Is 24 that what you are referring to? 25 MR. ETHERIDGE: Let me back up a bit. When I refer to 3527 01 the total quantity of water in the river, I mean not simply 02 the fishery flows released from Comanche Dam, but flows 03 released from Comanche Dam for Woodbridge Irrigation 04 District, for downstream riparians, for channel losses and 05 the like. Those fishery flow releases are only one 06 component of water released from the dam. 07 With that as a background, my question is: Are you 08 aware of the total quantity of water likely to be in Lower 09 Mokelumne River under EB MUD settlement flows contained in 10 EB MUD Exhibit 4? 11 MR. GUINEE: I am aware that the flows in the Mokelumne 12 River will, at times, exceed the flows in the exhibit that 13 you referred to and that releases from Comanche will 14 sometimes exceed what is written there. 15 MR. ETHERIDGE: So, in other words, the fishery flow 16 requirements, the releases from Comanche that must be made 17 for fishery purposes, those are only one part of the water 18 released from Comanche Dam? 19 MR. GUINEE: That is my understanding. 20 MR. ETHERIDGE: Does DOI 9-B plot the total quantity of 21 water likely to be in Mokelumne River for its MOU plots of 22 data? 23 MR. GUINEE: Actually, those MOU plots refer to flows 24 downstream of Woodbridge Dam, so it doesn't consider 25 diversions of Woodbridge or other factors. 3528 01 MR. ETHERIDGE: Do you agree that it would be 02 appropriate to examine the total quantity of water likely to 03 be in the Lower Mokelumne River and not just look in 04 isolation at settlement fishery flows? 05 MR. GUINEE: That is important to look at. But I think 06 what is also important is that there be minimum flow in the 07 river that is adequate to protect all the life stages of the 08 fish in the river and contribute to the Delta Water Quality 09 Control Plan and meeting this salmon narrative objective. 10 MR. ETHERIDGE: In your analysis of reviewing data and 11 plotting that data onto Exhibit 9-B, did you include the 12 additional releases that are provided under EB MUD's 13 settlement flows? 14 Let me help you with that. I will put up an overhead. 15 Mr. Caffrey, just for identification purposes, what I 16 have put up here is from East Bay MUD Exhibit Number 10. 17 It is Appendix A. It is EB MUD's MOU settlement, and this 18 is a page from the flow chart to that MOU settlement. At 19 the bottom of this you can see this is Page 1 of 5. 20 C.O. CAFFREY: Thank you, sir. 21 MR. ETHERIDGE: Mr. Guinee, at the top of this in the 22 upper left, it reads: 23 EB MUD 1/96 Revised Reply Proposal Normal and 24 Above Year flows. (Reading.) 25 Is that correct? 3529 01 MR. GUINEE: That is correct. 02 MR. ETHERIDGE: Can you see Note 5 to this chart? It 03 is near the bottom of the page. 04 MR. GUINEE: I can see it. 05 MR. ETHERIDGE: Do you agree that Note 5 provides for 06 the months of April, May and June during normal and above 07 year-types additional releases of up to 200 cfs is required, 08 depending on combined Pardee and Comanche storage levels? 09 And it goes on from there. Is that correct? 10 MR. GUINEE: In reading that I could draw the 11 conclusion that in some months there might be additional 12 flows, but I was not part of the negotiation that led to the 13 language in Number 5. 14 MR. ETHERIDGE: Did you include this additional water 15 in your data plotted on DOI Exhibit 9-B? 16 MR. GUINEE: No, I did not. I used the column that 17 reads "Expected flow below Woodbridge Dam." 18 MR. ETHERIDGE: Let me put up one more overhead. 19 Mr. Caffrey, for identification purposes, this is also 20 from EB MUD Exhibit 10, Appendix A. It's the MOU flow 21 table. This is Page 2 of 5. 22 Mr. Guinee, this chart is for below normal years; is 23 that correct? 24 MR. GUINEE: That is correct. 25 MR. ETHERIDGE: Can you look at Note 5 to this table. 3530 01 Do you agree that that says for the months of April, May and 02 June below normal year types additional releases of up to 03 200 cfs is required? 04 MR. GUINEE: Again, I would say the language there 05 would lead me to believe that in some years and some months 06 that may occur. But it only refers to releases from 07 Comanche and does not indicate that those flows would 08 continue downstream of Woodbridge. 09 MR. ETHERIDGE: Right. You would agree that this is an 10 additional quantity of water that you did not model or plot 11 on Exhibit 9-B? 12 MR. GUINEE: Correct. Because 9-B focuses on the flows 13 below Woodbridge. 14 MR. ETHERIDGE: Is your analysis contained in DOI 15 Exhibit 9-B what you term a cursory analysis? Is that 16 correct? 17 MR. GUINEE: That is correct. 18 MR. ETHERIDGE: As I understand your earlier testimony, 19 you did not conduct an analysis of the quantity of water 20 from the Mokelumne River that is necessary for the Delta; is 21 that correct? 22 MR. GUINEE: Right. I am not advocating any specific 23 quantities here. 24 MR. ETHERIDGE: If I understand your testimony from a 25 few minutes ago, you didn't conduct any specific study of 3531 01 the impacts on either the Lower Mokelumne River fishery 02 customers or Pardee and Comanche Reservoir fisheries of 03 Alternative 5; is that correct? 04 MR. GUINEE: I did not do that evaluation. 05 MR. ETHERIDGE: So, you simply just looked at 06 Alternative 5 and compared it to MOU in a quick comparison 07 and that is what is plotted on DOI Exhibit 9-B? 08 MR. GUINEE: I looked at the MOU flows downstream of 09 Woodbridge and compared them to the State Board's draft 10 Alternative 5, as well as unimpaired. 11 MR. ETHERIDGE: Just a moment, Mr. Caffrey. Let me 12 check my notes. 13 C.O. CAFFREY: Sure. Go ahead, Mr. Etheridge. 14 MR. ETHERIDGE: Just a couple more questions. 15 Ms. Goude, back to the biological opinion, referring to 16 the March 1998 biological opinion for the first proceeding 17 on the Lower Mokelumne River. 18 Now, I was questioning you earlier on the fact that it 19 is your opinion that Delta smelt did not exist in the 20 Mokelumne River above Woodbridge; is that correct? 21 MS. GOUDE: That is my understanding. 22 MR. ETHERIDGE: But the U.S. Fish and Wildlife Service 23 did a biological opinion on Delta smelt and concluded that 24 East Bay MUD's settlement flows would not jeopardize Delta 25 smelt. Is that correct? 3532 01 MS. GOUDE: And we also did not authorize any 02 incidental take, and we referred that it would be dealt with 03 in the State Board proceedings. 04 MR. ETHERIDGE: If Delta smelt exist in the Delta, but 05 not upstream of Woodbridge Dam, wouldn't you, by 06 implication, have to look at the impacts of EB MUD 07 settlement flows in the Delta on Delta smelt? 08 MS. GOUDE: We looked at the effects as it relates to 09 the project description. But, I guess, if you're implying 10 that we should have extended the scope of the biological 11 opinion to include the effects and terms and conditions and 12 reasonable and prudent measures of reasonable and prudent 13 alternative for Delta flows, I guess, then that is your 14 opinion, that we didn't make the scope of the biological 15 opinion as encompassing as it should have been. 16 MR. ETHERIDGE: That is not my opinion. Just asking. 17 Page 23 of the biological opinion under the conclusion. 18 MS. GOUDE: I have it. 19 MR. ETHERIDGE: There is a bolded heading there, "Delta 20 Smelt and Delta Smelt Critical Habitat." 21 MS. GOUDE: I have it. 22 MR. ETHERIDGE: Could you read the first sentence of 23 that conclusion. 24 MS. GOUGE: When compared to past conditions, i.e., 25 LMRP flows and other nonflow measures, the 3533 01 proposed action provides small increases in 02 Mokelumne River flows which, at times, may 03 improve transport and habitat flows for Delta 04 smelt. (Reading.) 05 And it does go on. 06 MR. ETHERIDGE: My reading of that is that the Service 07 must have considered the settlement flows in the Delta or 08 else you couldn't make the statement that they would improve 09 transport and habitat flows. 10 MS. GOUDE: We looked at the effects and said that they 11 didn't reduce it from the present condition and that there 12 was a small incremental increase. But we didn't say and 13 analyze what was needed to improve or restore or dealing 14 with the State Board rights for the Delta. 15 And, I guess, that the question that always comes up in 16 Section 7 and discussions is whether the scope of the 17 biological opinion should have been expanded to make 18 reasonable and prudent measures a reasonable and prudent 19 alternative to mandate those flows. We did not choose to do 20 that. 21 MR. ETHERIDGE: I have a couple more questions on 22 mimicking the natural hydrograph. You stated in your 23 testimony, I believe, that you start with mimicking the 24 natural hydrograph as a starting place; is that correct? 25 MS. GOUDE: Well, actually, the Interior's policy 3534 01 position was that one of their recommending -- our 02 recommendation is that you would look at a water rights 03 process. And we have always talked about that you would 04 then mimic the natural hydrograph that would meet the 05 biological needs, but that it was a stepping stone. 06 MR. ETHERIDGE: In mimicking the natural hydrograph, if 07 my understanding of your answers today is correct, you don't 08 absolutely mimic the natural hydrograph. For example, if 09 the natural hydrograph is at zero, you may not want to mimic 10 that. You want to increase flows over the natural 11 hydrograph. Is that correct? 12 MS. GOUDE: You have to look at the practical 13 application within the system and how that system 14 interrelates to other streams and how you operate within the 15 project as a whole. 16 MR. ETHERIDGE: I believe you mentioned some of those 17 factors are physical limitations, operational limitations, 18 biological issues. Is that correct? 19 MS. GOUDE: That is correct. There may be others. I 20 can't predict. 21 MR. ETHERIDGE: How does the State Board or any of the 22 parties on any of the tributaries in the Central Valley get 23 a sense of how this theory of mimicking the natural 24 hydrograph really works if it can be adjusted by so many 25 factors? 3535 01 MS. GOUDE: I didn't mean that it would be adjusted by 02 so many factors. I said you would develop -- you would 03 develop and look at the natural hydrograph and come up with 04 an implementation schedule as it relates to the various 05 tributaries. Understanding that the constraints, you would 06 not have a mandate or set rule that is so inflexible that 07 doesn't deal with the actual system. So you have to use 08 some practical knowledge. 09 You know, sometimes these things are difficult, but 10 that doesn't mean because they are difficult we walk away 11 from doing it. 12 MR. ETHERIDGE: Thank you very much. 13 That is all the questions I have, Mr. Caffrey. 14 C.O. CAFFREY: Thank you very much, Mr. Etheridge. 15 Do the staff have any cross-examination questions? 16 MR. HOWARD: Nothing. 17 C.O. CAFFREY: Nothing from the staff. 18 Anything from the Board Members on cross-examination? 19 Mr. Stubchaer. 20 ---oOo--- 21 CROSS-EXAMINATION OF THE DEPARTMENT OF THE INTERIOR 22 BY BOARD MEMBERS 23 C.O. STUBCHAER: Thank you, Mr. Chairman. 24 I have in response to the last question on how is the 25 Board supposed to implement the suggestions, and you said it 3536 01 needs flexibility. But do you have any suggestions on how 02 we could adjust water rights if he we selected that 03 alternative and still preserve flexibility? 04 MS. GOUDE: I guess I don't know exactly how you would 05 deal with the water rights and the flexibility. But I would 06 assume that just as it is right now under OCAP and the 07 operations, you had to look at the 70-year water year, and 08 you saw, for example, that in '76 and '77 the system was 09 bust. So the operational rules just didn't hold. Then you 10 had to make adjustments and have a confer and conference 11 provision within the documents to try and deal with those 12 unique situations. 13 I guess that is what -- I think you can deal with most 14 of the principles that go forth for most of the years. But, 15 you know, there are those years that everything screwed up, 16 basically, and you have to make those kinds of allowances. 17 So, I do think you can do it. It is just that you have to 18 recognize that in certain water year-types, you know, that 19 are exceptionally critically dry years back to back that you 20 have a bust system and it is very problematic how you deal 21 with it. 22 C.O. STUBCHAER: A couple more questions. With regard 23 to the Delta smelt, as opposed to salmon, I think you 24 answered Mr. Lilly's hypothetical. I think you stated that 25 the Delta smelt do know where the water that is the 3537 01 Sacramento River which tributaries the water from the 02 Sacramento River is coming from, or it makes a difference to 03 them. 04 Is that what you said? 05 MS. GOUDE: That they do or -- 06 C.O. STUBCHAER: That they do. 07 MS. GOUDE: There is no empirical studies or 08 information that says that they could actually distinguish. 09 What there has been, a lot of studies about source waters 10 and the importance within estuaries from the different 11 tributaries and the importance. 12 I think the more practical application has to deal with 13 is that if you add different tributaries' contributions to 14 the system, it adds flexibility within the system for Delta 15 smelt and other species within the Delta to deal with it. 16 For example, if Delta smelt or Sacramento splittail are 17 in a portion of the Sacramento River, then, and you need to 18 have flows for their habitat and you can have -- and you are 19 having contributions from the Feather or the Yuba or 20 whatever, then you can operate a little more reasonably. Or 21 if they actually go into the American, you can deal with it 22 in the same sense. 23 But as far as what I was saying before, is all the 24 studies have talked about generic discussions of the need 25 for estuaries. There is no way of demonstrating some of 3538 01 those issues. 02 C.O. STUBCHAER: I was asking only about the Delta 03 smelt in the Delta, not the other rivers. 04 MS. GOUDE: Right. 05 C.O. STUBCHAER: Then if you are going -- if you think 06 that tributaries are important, are subtributaries 07 important? 08 MS. GOUDE: Did you say, "If I think tributaries are 09 important"? 10 C.O. STUBCHAER: Yes. Then what about subtributaries? 11 In other words, the Middle Fork, the North Fork, something 12 like that. Does it go down that finally? 13 MS. GOUDE: I think that it depends on the hydrologic 14 system and the connections that it has. I think that, 15 obviously, some of those subtributaries are very important. 16 But whether you apply or deal with the same proportion, it 17 depends on what people call the subtributaries. It can go 18 into many orders of stream, and I think there has to be some 19 reasonable application in looking at that. 20 C.O. STUBCHAER: Then, Mr. Guinee, on your Exhibit 9-B 21 that has been discussed at length, and the upper line, I 22 think, was the mean, the seven-year mean. 23 MR. GUINEE: Would you like me to put it back up? 24 C.O. STUBCHAER: I don't need it back up. 25 There was the seven-year average. My question had to 3539 01 do with the use of median versus the mean. As you know, the 02 mean can be distorted by a few high years. 03 MR. GUINEE: Right. 04 C.O. STUBCHAER: Did you consider using the median? 05 MR. GUINEE: Actually, no, I did not. For this simple 06 comparison I just took the DWR data. 07 C.O. STUBCHAER: Thank you. 08 C.O. CAFFREY: Mr. Brown. 09 MEMBER BROWN: Thank you, Mr. Chairman. 10 If I understood your testimony correctly, that you have 11 not really studied the other alternatives' suitability or 12 economic feasibility of the other alternatives? 13 MR. GUINEE: Are you asking -- 14 MEMBER BROWN: Either one or both. 15 MR. GUINEE: The other alternatives in the draft EIR? 16 MEMBER BROWN: Right. 17 MR. GUINEE: I have looked at them in terms of 18 biological concerns, but not economic issues or any water 19 supply kinds of -- 20 MEMBER BROWN: Your position or recommendation maybe on 21 5 is strictly from the biological considerations that you 22 are making, and not from suitability or economic 23 feasibility? 24 MS. GOUDE: That's correct. We didn't do -- and, 25 basically, it's not just Alternative 5. In the Interior's 3540 01 comments on the EIR there were certain issues, modeling 02 issues, that the Bureau also looked at. So there are some 03 questions on that. But it is a principle or a concept that 04 we were more advocating. But questions, because we used the 05 example in Alternative 5, has come back to mean that. 06 MEMBER BROWN: I would suspect, then, that you would 07 probably before you were to concluded on a recommendation 08 that you would certainly want to see the other alternatives 09 thoroughly analyzed or not only the biological effects on 10 the streams, but for the other suitability concerns and the 11 operational economics of those alternatives? 12 MS. GOUDE: That is correct. 13 MR. GUINEE: I would agree, as well. When I read the 14 opening statement that Alf presented, I see the opportunity 15 that the two approaches may be very compatible and it 16 doesn't have to be an either/or. 17 MEMBER BROWN: Your Alternative 5 support is more for 18 the concept rather than from the analysis? 19 MS. GOUDE: That's correct. 20 MEMBER BROWN: Thank you. 21 C.O. CAFFREY: Thank you, Mr. Brown. 22 Ms. Forster. 23 MEMBER FORSTER: My question is built off of something 24 that was said yesterday. It related to, like reality 25 check. And when someone was questioning on the 3541 01 achievability of mimicking natural conditions in the 02 systems, one of you said, "Well, we have to be realists; we 03 have to look at operations. We have to look at what is 04 happening today." 05 In listening over and over again to the questioning, I 06 realized, even with all the money that is being spent, that 07 we don't have good enough data to mimic what you're talking 08 about. I mean, we wouldn't know -- in my impression of 09 listening -- I guess I am going to do like the attorneys do 10 -- is it your understanding that there is no clear-cut 11 answer in how you would mimic, given operations today, needs 12 of today, the realities of today, and so the Board has lots 13 of flexibility in looking at this? 14 Is that your understanding? 15 MS. GOUDE: I think you can use some general trends and 16 concepts for mimicking the hydrograph. What the Board had 17 asked me in questions before, which were good questions 18 which I hadn't really thought about, there is two issues. 19 Like, for example if stream X provides 3 percent of the 20 proportion within the system and how would you equate that 21 flow in, as well as how you mimic the proportion within the 22 actual stream X. There is two actions. 23 But I think what needs to be done is that equitable 24 contribution or mimicking the hydrograph is looking at some 25 basic principles that you can deal with. The judgment 3542 01 portion that is really hard is how much and what 02 proportion. Basically, in a lot of the tributaries there 03 was a spring runoff. There was a snowmelt. There was rain 04 runoff. And there is some area within that. I guess that 05 is what I said is the match of some of those basic 06 principles. 07 So, no, the details on every stream hasn't been 08 developed. You all have been in water rights proceeding for 09 a lot of different streams over time, and you realize that 10 probably that there is no simple biological answer to some 11 of these questions. Then you have to overlay all the 12 economic factors and the constraints and everything else. 13 But it should have some sensible approach for meeting those 14 objectives. I think that is basically the concept or the 15 principle that I have been trying to impart. 16 MEMBER FORSTER: Do you have anything to say? 17 MR. GUINEE: No. I have nothing to add to that. 18 Thank you. 19 C.O. CAFFREY: Thank you, Board Members, staff and 20 cross-examiners. That completes the cross-examination of 21 this panel. Before we break for lunch, I want to ask Mr. 22 Brandt if he does plan to have redirect. 23 MR. BRANDT: Can I have just a moment? 24 C.O. CAFFREY: Certainly. 25 Mr. Brandt. 3543 01 MR. BRANDT: Mr. Chairman, we will have no redirect. 02 C.O. CAFFREY: No redirect. All right. 03 That I believe, then, that would take us to the point 04 where you can offer your exhibits. You might try to do that 05 before lunch. You want to do that? 06 MR. BRANDT: That will be fine. 07 Mr. Chairman, I would like to offer on behalf of the 08 Department of the Interior Exhibits 8 and 9. Just a couple 09 comments to clarify. On 9-A and 9-B we added the 10 information. We gave extra copies to everybody, the 11 information at the bottom on the ones that have been up 12 here. So, they would be 9-A and B as modified. 13 MS. WHITNEY: No. I have 9-B and C as modified. 14 C.O. CAFFREY: Right. 9-A is his resume. 9-B and C, 15 yes. I would offer 8 and 9, including the attachments with 16 the caveat that 9-B and C have been modified to provide some 17 more information. 18 Do you agree with that, Ms. Whitney? 19 MS. WHITNEY: I agree with that. 20 C.O. CAFFREY: Let's deal with your exhibits first. 21 Is there any objection on the part of anybody in the 22 audience from receiving into the record the exhibits as 23 described by Mr. Brandt? 24 MR. LILLY: Yes, there is. 25 C.O. CAFFREY: Mr. Lilly and then Mr. Nomellini. 3544 01 Mr. Lilly. 02 MR. LILLY: Yes. Mr. Caffrey, I object on behalf of 03 the Yuba County Water Agency to Exhibit 9-C and to Paragraph 04 3 of Exhibit 9, which is the text that discusses 9-C, on two 05 grounds. 06 First of all, as Mr. Guinee explained, the purpose of 07 this exhibit -- 08 C.O. CAFFREY: I am sorry, as Mr. who explained? 09 MR. LILLY: As Mr. Guinee explained on 10 cross-examination -- as Mr. Guinee testified, the purpose of 11 the Exhibit 9-C was to show different flows in the Lower 12 Yuba River and the relative effects of different flows on 13 the fish habitat in the Lower Yuba River. And this Board's 14 Notice of Hearing for this hearing states on Page 3, I 15 quote: 16 With respect to meeting the objectives, the 17 proceeding is intended -- (Reading.) 18 This is the proceeding for all phases, not just Phase 19 IV. 20 -- is intended to establish water right 21 implementation requirements that will meet 22 the flow-dependent objectives within the 23 Bay-Delta. Not to establish specific 24 in-stream flow requirements to protect fish 25 and wildlife upstream of the Delta. 3545 01 (Reading.) 02 So, therefore, my objection is that 9-C and the written 03 testimony concerning 9-C are solely for the purpose of 04 addressing an issue that this Board has explicitly said will 05 not be part of this hearing. 06 The second basis for objections, that apparently this 07 testimony was submitted regarding the Yuba River Settlement 08 Agreement, which we notified the Board would not be 09 considered in Phase IV because no final agreement has been 10 reached yet, even though we are still working on it. We 11 understand that while they may have submitted the written 12 testimony, not knowing that, they certainly knew it before 13 the hearing for Phase IV started. And, therefore, it is 14 just not relevant to Phase IV. 15 C.O. CAFFREY: Thank you, Mr. Lilly. 16 Mr. Nomellini, did you have something you want to add? 17 MR. NOMELLINI: I just wanted to make sure from a 18 procedural standpoint that 9-B and 9-C modified get 19 distributed to parties that aren't here. I happen to have 20 copies that was introduced. 21 C.O. CAFFREY: I believe Mr. Brandt is nodding in the 22 affirmative that he will see that that happens. 23 MR. BRANDT: I would be happy to do that. 24 C.O. CAFFREY: I want to talk to -- 25 Mr. Suyeyasu, I am sorry, I did not see you. 3546 01 MR. SUYEYASU: I just wanted to respond to Mr. Lilly's 02 comments. I don't think it has been clarified yet whether 03 or not this hearing will be moving outside of the Delta to 04 upstream issues to deal with the narrative objective for 05 salmon. 06 Although the Notice of Hearing said we did not intend 07 to go past the Delta, your notice also advised that this 08 would deal with all the flow-dependent objectives in the 09 Water Quality Control Plan, and that does include the 10 narrative objective, which under its wording does go outside 11 of the Delta itself. I think that is a legal issue that has 12 yet to be decided. So, at this point this information 13 should be let into the record. 14 C.O. CAFFREY: Thank you, Mr. Suyeyasu. 15 Mr. O'Laughlin. 16 MR. O'LAUGHLIN: It is not a legal issue. It is a 17 procedural issue. Because we need to know as parties what 18 evidence we need to put into the record in order to protect 19 either the in-stream flows issue or Bay-Delta issues. The 20 hearing notice was very specific in that, and I agree with 21 Mr. Lilly. It specifically deletes in-stream flow issues 22 because the relevance of those to this proceeding is not 23 here. 24 So, I would agree with Mr. Lilly in regards to 25 determining flow, in-stream flows, that is not part of the 3547 01 proceeding. And we should know that if that has been 02 changed, we should be informed of that as we move forward in 03 the proceeding. 04 C.O. CAFFREY: Thank you, sir. 05 Mr. Godwin. 06 MR. GODWIN: Yes. And I would like to add also that 07 the Draft EIR specifically excludes meeting the narrative 08 objective for salmon in its discussion. 09 C.O. CAFFREY: Thank you, sir. 10 Anybody else? 11 MR. SUYEYASU: I do not believe that that is what the 12 Draft EIR says. It says that at this point the Board does 13 not have enough information to make a decision on that. I 14 don't think the Draft EIR in any way controls what goes into 15 these hearings. 16 MR. LILLY: Mr. Caffrey, may I just respond to Mr. 17 Suyeyasu's comments? 18 C.O. CAFFREY: Go ahead, Mr. Lilly. We are going to 19 wind this up, and I am going to have a brief consultation. 20 Go ahead. 21 MR. LILLY: We went through this in 1992, and at that 22 time Chairman Maughan, who certainly didn't give Yuba County 23 Water Agency any breaks, ruled that we were not going to 24 consider in-stream flow issues. The reason was that if we 25 did, we would, in essence, be introducing another 14 days of 3548 01 Yuba River testimony and another ten days of Lower Mokelumne 02 River testimony and a similar number of days of testimony on 03 every other river. 04 There is a practical matter, once in-stream flow issues 05 are opened up into this hearing, it becomes a lot broader. 06 You can't just throw in a few graphs without expecting the 07 other side to respond to that. I think this Board clearly 08 and correctly noticed that in its Notice of Hearing, and I 09 really think it would be a mistake to broaden the scope of 10 this hearing at this point. It really is going to open it 11 up if that happens. 12 C.O. CAFFREY: Mr. Brandt. 13 MR. BRANDT: Without commenting on Mr. Suyeyasu's 14 comments and a breadth of this, even within the breadth of 15 what Mr. Lilly described, the testimony, as you will note in 16 Paragraph 3 of Mr. Guinee, says explicitly they are 17 biologically -- the Yuba River is 18 biologically/hydrologically connected to the Delta. And for 19 that reason, that is why this is a part of dealing with the 20 Delta. 21 We had extensive -- not extensive, actually. It's been 22 a comparatively small part of the testimony. It's been 23 about the Yuba River. But we have had testimony talking 24 about this. It is just to talk about the comparative flows 25 getting into the Delta. So to that extent, it relates 3549 01 directly to the Delta, not just in-stream flows. 02 C.O. CAFFREY: Thank you, sir. 03 Let's go off the record for just a moment. 04 Ms. Leidigh, will you join us up here, please. 05 (Discussion held off the record.) 06 C.O. CAFFREY: We are back on the record, and we will 07 have a ruling. And before we give it, I will ask Ms. 08 Leidigh to give us a preamble and a reasoning, and then we 09 will rule. 10 MS. LEIDIGH: Thank you. 11 My basic recommendation is that the exhibits be 12 accepted. And the reason is that the hearing notice for 13 Alternative 5 talks about contributions from the different 14 tributaries, proportionate contribution from tributaries. 15 It does not talk about setting in-stream flows in those 16 tributaries. It talks only about the contribution. 17 To the extent that these exhibits are used for the 18 purpose of talking about proportionate contributions from 19 those tributaries, it seems to me that they are appropriate 20 and can be accepted for that. It would not be correct to 21 say that the Board's notice in any way is looking at setting 22 in-stream flows, though, on the tributaries in the Delta. 23 It is only looking at contributions from those tributaries. 24 C.O. CAFFREY: Thank you, Ms. Leidigh. 25 We are overruling the objection on the basis of Ms. 3550 01 Leidigh's explanation. The Board will use these exhibits 02 for the purpose of looking at proportionate contributions 03 and not setting in-stream flows. So the exhibits are 04 accepted. 05 That now takes us to consideration of Mr. Lilly's 06 exhibits, YCWA-1. 07 Is Mr. Lilly still here? 08 There he is. 09 MR. LILLY: Mr. Caffrey, I will repeat my earlier 10 request that Exhibit YCWA-1 be accepted into the record. 11 Obviously, it is simply for the purpose of illustrating 12 cross-examination we conducted yesterday. 13 C.O. CAFFREY: Thank you, sir. Is there any objection 14 accepting YCWA-1 into the record? 15 Mr. O'Laughlin. 16 MR. O'LAUGHLIN: No objection, but that will be mailed 17 out to everybody in a supplemental mailing? 18 C.O. CAFFREY: Can we get copies for everybody, Mr. 19 Lilly? 20 MR. LILLY: I distributed 80 copies to everyone here 21 yesterday. I have a few extra, and I would be glad to hand 22 them out to anyone who didn't have them. I really would 23 like not to have to mail a hundred envelopes when almost 24 everyone was here, anyway. But, certainly, anyone who wants 25 one, I will be glad to provide a copy. 3551 01 C.O. CAFFREY: Any objection to that? 02 Mr. Campbell. 03 MR. CAMPBELL: In the past when we have introduced 04 exhibits during the hearing, we have been required, all the 05 parties have been required, to do supplement mailings. 06 Simply because not everybody is here, and it is now an 07 exhibit, part of the record of this hearing, and there are 08 parties whose representatives have not received it. 09 C.O. CAFFREY: Mr. Campbell is right. 10 MR. LILLY: We took care of the problem. Mr. Etheridge 11 said they will put it in their envelope. 12 C.O. CAFFREY: Share in the postage. 13 MR. LILLY: I assume that is acceptable to the Board, 14 as long as -- 15 C.O. CAFFREY: Perfectly all right with me, as long as 16 it gets mailed and everybody gets a copy. 17 MR. LILLY: I do appreciate Mr. Etheridge's assistance 18 on that. 19 C.O. CAFFREY: As does the Board. Thank you, Mr. 20 Etheridge. 21 Thank you, Mr. Lilly. 22 MR. ETHERIDGE: Given the substantial postage we will 23 be paying for the biological opinion, we thought we would 24 throw it in. 25 MR. BRANDT: Can I thank Mr. Etheridge for that, by the 3552 01 way. 02 MR. ETHERIDGE: EB MUD Exhibit Number 11, which is the 03 March 1998 biological opinion, we will mail the State Board 04 20 copies as well as everybody on the service list one copy. 05 C.O. CAFFREY: That is right. I almost forgot that 06 very important exhibit. 07 Any objection to that exhibit? 08 All right, all the exhibits as described by the three 09 parties are accepted into the record. 10 Anything else, Ms. Leidigh, before we break for lunch 11 on the exhibit matters? 12 MS. LEIDIGH: Nothing on the exhibits. I think it 13 probably will be in order at this point to inquire whether 14 parties are planning to put on rebuttal this afternoon. 15 C.O. CAFFREY: Thank you. It's a very good question. 16 Because that now completes all the direct testimony portion 17 of Phase IV. We had a number of phases. I didn't count 18 them, but I think it is around eight to ten, perhaps. Not 19 phases, cases in chief, maybe eight to ten, roughly 20 estimating. 21 Are there parties here today that plan to offer 22 rebuttal testimony? 23 That is interesting. 24 Mr. Maddow. 25 MR. MADDOW: If I can arrange it during the noon hour, 3553 01 I may have one rebuttal witness and one rebuttal piece of 02 evidence. The witness is not here, and I am going to have 03 to see if I can get that person. 04 C.O. CAFFREY: All right, sir. 05 Nobody else considering rebuttal testimony? 06 All right. We will come back at, let's make it, 1:15. 07 We'll see what Mr. Maddow has decided to do, and then we 08 will talk about closing statements at that point and then we 09 will talk about Phase V. 10 Mr. Brandt. 11 MR. BRANDT: That is actually what I was going to ask 12 about, Phase V. Are you thinking that you may go forward 13 with Phase V this afternoon? And if you are, who is getting 14 to start? Who has to get their witnesses? 15 C.O. CAFFREY: Is there anybody here who feels 16 compelled to start? 17 Well, let's take a minute or two here just to talk 18 about that a little bit before we go to lunch. It's worth 19 doing right now. 20 Are there people here prepared to present cases in 21 chief for Phase V today? 22 By the time we get back here and have a protracted -- 23 possibly have some rebuttal from Mr. Maddow, and then have a 24 protracted discussion closing statements, which probably 25 won't be protracted, but it will probably be 1:30 or 2:00 in 3554 01 the afternoon, and it probably wouldn't be very wise to 02 start Phase V, anyway, and just go a couple hours. So lets 03 plan on starting Phase V on Tuesday morning of next week. 04 We have three days scheduled for next week. We will start 05 Phase V next Tuesday morning. 06 Mr. Gallery. 07 MR. GALLERY: Mr. Chairman, you referred to closing 08 statements. Did you mean that you would be taking oral 09 closing statements on Phase IV this afternoon? 10 C.O. CAFFREY: No. That is not our intention. I think 11 what we will do is just talk about scheduling for receipt of 12 written closing statements. 13 We'll come back here at 1:15 to officially close this 14 phase. 15 Thank you. 16 (Luncheon break taken.) 17 ---oOo--- 18 19 20 21 22 23 24 25 3555 01 AFTERNOON SESSION 02 ---oOo--- 03 C.O. CAFFREY: Good afternoon. Welcome back. 04 This is the continuation of the Bay-Delta Water Rights 05 Hearing. 06 We were at that point where we were going to determine 07 how many of the parties might have rebuttal testimony for 08 Phase IV, and I believe, Mr. Maddow, you do have rebuttal 09 testimony, sir? 10 MR. MADDOW: Yes, Mr. Chairman. I will say and 11 tendered that we were trying to anticipate the schedule. We 12 really expected that this would be happening next Tuesday. 13 So, we may have a little bumper start along the way, but we 14 are prepared. 15 C.O. CAFFREY: We will accommodate you, sir, as best we 16 can. 17 Anybody else wishing to offer rebuttal testimony? 18 All right, then we will go to Mr. Maddow. 19 ---oOo--- 20 REBUTTAL EVIDENCE OF PHASE IV 21 BY CONTRA COSTA WATER DISTRICT 22 BY MR. MADDOW 23 MR. MADDOW: Thank you, Mr. Chairman. 24 Mr. Chairman, Members of the Board, I am Robert Maddow. 25 I am appearing on behalf of the Contra Costa Water District. 3556 01 We do have a brief rebuttal presentation for Phase IV. 02 Just sort of by way of context, at the beginning of Phase 03 IV, I was not present and unfortunately missed my 04 opportunity to make an opening statement. I don't intend to 05 make that now, but would like to make just a very brief 06 remark to kind of put our rebuttal case in context, if I 07 may. 08 C.O. CAFFREY: Let me say so we are all on the same 09 page, I believe we do -- correct me if I am wrong, Ms. 10 Leidigh. I am not sure we are absolutely positive up here 11 unless we start poring through the regs again, but do we 12 have a 20-minute limitation on rebuttal direct? 13 MR. MADDOW: We will take less than 20 minutes, Mr. 14 Chairman. 15 C.O. CAFFREY: Then we don't have to answer the 16 question if nobody has the answer. It will be a good thing 17 to remind ourselves up before long, before we get further 18 into the proceedings. 19 All right, Mr. Maddow, please proceed. 20 MR. MADDOW: Thank you, Mr. Chairman. 21 As we have said on a number of occasions throughout the 22 hearing, our consistent concern with regard to settlement 23 agreements has really grown out of the explanation of key 24 issues. Five in the hearing notice, which says that what we 25 are exploring and looking at settlement agreements is 3557 01 whether or not these agreements, which have been proposed, 02 actually should be accepted as resolutions of responsibility 03 of certain water rights holders to help meet objectives in 04 the 1995 Water Quality Control Plan. 05 It is the latter part of that, meeting the objectives 06 of the 1995 Water Quality Control Plan, that has been Contra 07 Costa's consistent concern with regard to all of the 08 settlement agreements that have been presented. It is 09 Contra Costa's belief that several of the settlement 10 agreements that have been presented to you work, from Contra 11 Costa's perspective, because the contribution of the 12 proponents of the agreements have been backstopped, to use a 13 term that has been used throughout this phase and in Phase 14 II, by either the Department of Water Resources or the 15 Bureau of Reclamation, or both. 16 Well, there is one of the settlement agreements in 17 Phase IV for which Contra Costa does not believe that that 18 critical element, the backstop, is present. Contra Costa, 19 therefore, believes that one of the settlement agreements 20 that has been proposed is incomplete and, therefore, Contra 21 Costa thinks that all the testimony regarding that 22 settlement agreement is really relevant in Phase VIII. It 23 is not relevant in Phase IV. We have raised that issue 24 before, and we reiterate it at this point. 25 The settlement agreement I'm talking about, of course, 3558 01 is the one proposed by the East Bay Municipal Utility 02 District. East Bay said that they do not believe any 03 backstop was necessary. All that we know in regard to any 04 aspect of backstop is that we have an oral commitment from 05 the Department of Water Resources to meet something on the 06 order of 25 percent of the shortfall in the event there is a 07 gap in terms of water needed to meet Bay-Delta water quality 08 objectives when the Delta is balanced conditions. 09 Our concern is that we really need to look hard at what 10 the -- 11 C.O. CAFFREY: Excuse me, Mr. Maddow, for interrupting 12 you, but I need to look to my attorney here. This seems to 13 be in the nature of almost a summation argument, and I am 14 wondering if this is appropriate for Mr. Maddow, the 15 attorney in this instance, to be making this argument before 16 or should it come from his witness as direct rebuttal? I 17 think the purpose of this is to rebut the testimony. I am 18 not sure -- if it is allowable, that is fine. I am just 19 asking you for some advice, Ms. Leidigh. 20 MS. LEIDIGH: As I understand the purpose of rebuttal 21 is to rebut the evidence that has been put on by the other 22 parties. I suppose in that context it would be appropriate 23 to address the comment to how the rebuttal is going to be 24 put on and what you are trying to accomplish with the 25 rebuttal. But something that goes beyond addressing the 3559 01 rebuttal, it seems to me, should really be in the closing 02 brief. 03 C.O. CAFFREY: I guess, maybe the lines are not all 04 that clear, Mr. Maddow. But I guess my concern is that if 05 what you are saying is bordering on testimony, you know, you 06 really are not a witness. You are an attorney here and 07 maybe the kind of statement you are making needs to be 08 brought out by your witness. 09 MR. MADDOW: What I attempted to do in the remark that 10 immediately preceded your stopping me, Mr. Chairman, was to 11 refer to the testimony which East Bay MUD has put on in its 12 case concerning whether or not this backstop that we have 13 been talking about from the beginning and referred to as a 14 part of, in essence, our statement of policy, consistently, 15 whether or not they had any obligation to proceed with an 16 agreement which had a backstop, and in the absence of any 17 such backstop, which is, in essence, what their case was, my 18 last comment, just before you stopped me, would have been to 19 simply describe what our rebuttal point was going to be in 20 response to that testimony that was a part of their case in 21 chief. 22 I was trying to do that, not by way of argument, but by 23 way of setting the context. 24 C.O. CAFFREY: With your clarifying statement just now 25 along with my admonition, we will consider this sort of a 3560 01 preliminary statement just to set the scene for the direct 02 and, therefore, not subject it to questions by the other 03 attorneys. 04 I do want to remind everybody that with the rebuttal, 05 the purpose is to present your witnesses and to cite 06 specific instances that you are rebutting. 07 Please, proceed. 08 MR. MADDOW: Thank you, Mr. Chairman. 09 Contra Costa has just one rebuttal witness to present, 10 and he is here at the table. And first, can I ask you, sir, 11 to give your name and identify your employer and the 12 position that you serve. 13 C.O. CAFFREY: I am being reminded by members of the 14 audience. I believe Mr. Hasencamp has probably not been 15 sworn in, because you were acting as a 16 cross-examiner/attorney, if I may do so. 17 Is that correct, Mr. Hasencamp? 18 MR. HASENCAMP: Well, despite cross-examining a few 19 witnesses, I did take the oath the first day of the 20 hearing. Maybe that was a mistake on my part. 21 MR. MADDOW: On opening day. 22 C.O. CAFFREY: I have administered the oath to him. If 23 a mistake, Ms. Leidigh says no. We'll blame her if it turns 24 out wrong later. 25 MR. MADDOW: Serving as a pinch hitter attorney doesn't 3561 01 cancel out his swearing to tell the truth. 02 C.O. CAFFREY: Probably not. Only if he's a licensed 03 officer of the court. 04 Go ahead. 05 MR. MADDOW: Again, just to make sure the record is 06 clear: 07 Mr. Hasencamp, did you take the oath on the opening day 08 of these proceedings? 09 MR. HASENCAMP: Yes, I did. 10 MR. MADDOW: Mr. Hasencamp, is Contra Costa Water 11 District Exhibit 1-D a true statement of your 12 qualifications? 13 MR. HASENCAMP: Yes, it is. 14 MR. MADDOW: Could you summarize your qualifications, 15 please, sir. 16 MR. HASENCAMP: I don't know if -- you asked me to give 17 my name for the record earlier, and I don't know if the 18 Court Reporter has that. 19 It's Bill Hasencamp; H-a-s-e-n-c-a-m-p. 20 From 1990 until 1994, I was in charge of operational 21 planning for the Los Angeles Department of Water and Power, 22 and I prepared several computer models to analyze the 23 impacts of different Mono Lake alternatives that were before 24 this Board and presented testimony before this Board in 1994 25 on the operational impacts of the different decisions 3562 01 regarding Mono Lake. 02 From 1995 until present, I am at the Contra Costa Water 03 District, and I am in charge of operational planning for the 04 Los Vaqueros Reservoir project. Pleased to announce that we 05 are more than two-thirds filled of Los Vaqueros Reservoir. 06 We are taking advantage of the wet conditions this year to 07 fill very quickly. 08 MR. MADDOW: Thank you, Mr. Hasencamp. 09 Without further adieu, could I ask you to summarize 10 your rebuttal testimony, please. 11 MR. HASENCAMP: Yes. I looked in detail at East Bay 12 MUD Exhibit Number 4 and many appendices associated with 13 it. Those appendices are basically output of EBMUDSIM. And 14 the first overhead that I would like to put up is CCWD 15 Exhibit -- 16 MR. MADDOW: Mr. Chairman, what we need to do with this 17 overhead, if I may, is make sure that the title is clear so 18 that we can identify it for the record, and then I need to 19 move it so that the bottom line can be seen. 20 C.O. CAFFREY: That is fine. 21 MR. MADDOW: Could you identify it by the title, Bill. 22 MR. HASENCAMP: The title is Net JSA Flow Contribution 23 to the Delta Based Upon EB MUD Exhibit 4, Table E-1. 24 MR. MADDOW: Mr. Chairman, this is one of those 25 pitfalls of expecting that this was going to happen next 3563 01 week. 02 This exhibit has not yet been marked for 03 identification. At this time I would like to have it marked 04 as CCWD Exhibit 7, and I have about 20 copies. We will 05 serve copies on all the parties. 06 C.O. CAFFREY: All right, sir. 07 MR. MADDOW: Provide some to Mr. Etheridge and some to 08 the staff. 09 MR. HASENCAMP: I would like to point out there is a 10 typographical error in the title of the table. The second 11 line that says, "during months with balanced conditions, 12 according to DWRSIM study 469," should be struck. 13 C.O. CAFFREY: Entire line should be struck? 14 MR. HASENCAMP: Yes. This table is derived from East 15 Bay MUD Exhibit 4, Table E-1, and the only difference is 16 this table shows the net contribution to the Delta according 17 to EBMUDSIM in water year. Whereas, the table that is E-1 18 is, I believe, March through February. That is a different 19 year type. 20 MR. MADDOW: In other words, Mr. Hasencamp, you simply 21 rearranged the numbers on the East Bay MUD exhibit; is that 22 correct? 23 MR. HASENCAMP: Yes, I did. 24 MR. MADDOW: Without any changes in those numbers, you 25 simply rearranged them in a different chronological order; 3564 01 is that correct? 02 MR. HASENCAMP: That's correct. And I added an average 03 row at the bottom of the table, which averages all of the 04 70-plus years of data. According to the output in EBMUDSIM, 05 the difference between the JSA flow contribution and the 06 1961 Agreement is a net increase of flow about 7,315 07 acre-feet per year. That is shown at the bottom of the 08 table. 09 One thing that is apparent when looking at the FERC 10 flows or JSA flow contribution is that in most years the 11 demand of the East Bay MUD is the same, and that is they 12 deliver a constant amount of water to their service area 13 and, therefore, divert a fairly constant amount of water 14 from the Mokelumne River. And so in most years the net 15 effect of the JSA is a reoperation. It is releasing water 16 in a certain month and then having -- releasing more water 17 in a certain month and releasing less water in a later 18 month. 19 You can see that at the bottom row that says "average," 20 that from November through May, on average, there is a 21 positive contribution of flow to the Delta. While from June 22 through October, in general, there is less water flowing in 23 the Delta because of the JSA. Again, the primary reason for 24 that is because of a reoperation, releasing more water in 25 the winter and early spring and less water in the summer and 3565 01 fall. 02 Then what I did is I took the -- and it is shown on the 03 next exhibit, which will be put on the overhead. The title 04 is "Study 1995 C06F SWRCB 469." 05 MR. MADDOW: And, Mr. Chairman, we would ask at this 06 time that this be marked as CCWD Exhibit 8. Again, we will 07 serve copies on all the parties. I am handing several 08 copies to Mr. Etheridge and to the staff, and I have a few 09 more for the audience, I should say, for the other parties. 10 MR. HASENCAMP: This table also has a title, "Delta 11 Surplus Outflow." What this table shows is for Alternative 12 2 in the State Board's Draft EIR, what the surplus Delta 13 outflow is forecast to be under the current level of demand 14 with a repeat of historic hydrologic conditions. 15 As the table shows, during the months of December, 16 January, February and March, most of the time there is 17 surplus flow in the Delta. And during the period of July, 18 August, September, there is very rarely any surplus, and 19 the Delta is typically in balance. 20 What I did was to combine the two tables. I looked at 21 the times when water is needed to help meet the 1995 Water 22 Quality Control Plan objectives when the Delta was not in 23 surplus, or rather when the Delta is in balanced conditions 24 and compare that to the timing when East Bay MUD released 25 water under their EBMUDSIM output in their JSA Agreement. 3566 01 And that is the next exhibit. 02 MR. MADDOW: Mr. Hasencamp, could you read the 03 identifying caption on this exhibit, please. 04 MR. HASENCAMP: Yes. It is "Net JSA Flow Contribution 05 to the Delta Based upon EB MUD Exhibit 4, Table E-1, during 06 months when balanced conditions -- during months with 07 balanced conditions, according to DWRSIM study 469. 08 MR. MADDOW: Mr. Chairman, at this time we would ask 09 that this exhibit be marked as CCWD Exhibit Number 9, 10 please. 11 For the record, Mr. Chairman, I have provided copies 12 to the Mr. Etheridge and to the staff, and the balance of 13 the copies I have distributed to the other parties. 14 C.O. CAFFREY: Thank you, sir. 15 MR. HASENCAMP: What I did in this table is subtract 16 out or delete the contribution or the deficit that the JSA 17 provided to the Delta when the Delta is in surplus 18 condition. If there is already surplus flow in the Delta, 19 and the JSA were to provide more flow, then the surplus 20 would increase. But it wouldn't necessarily help meet the 21 Water Quality Control Plan objectives. 22 Clearly, when the Delta is in balance, any increase in 23 flow or decrease in flow will affect the ability of the 24 other water users to meet requirements of the Water Quality 25 Control Plan. Typically, because the Delta is in surplus in 3567 01 December, January, February, March, during most of the 02 months, even in many of the dry years, those values got 03 deleted. But most of the values of June, July, August and 04 September remained because that is when the Delta is in 05 balanced condition. 06 The bottom row shows the average of the '73 period, 07 again. And in this case the net contribution from the JSA 08 during times when the Delta is in balance is actually 09 negative, in that they have a decrease in flow more often 10 than they have an increase in flow when the Delta is in 11 balanced condition. I believe this is the period which is 12 important to look at when you're considering whether the JSA 13 provides the fair share contribution of East Bay MUD. 14 That concludes my testimony. 15 MR. MADDOW: That concludes our rebuttal evidence 16 presentation. We are prepared for cross-examination. 17 C.O. CAFFREY: Thank you, sir. 18 I would like a showing of hands who wishes to 19 cross-examine this witness. 20 Mr. Birmingham. 21 Anyone else besides Mr. Birmingham? 22 Mr. Etheridge. Mr. Birmingham and Mr. Etheridge. 23 Anyone else? 24 That will be it. 25 Mr. Birmingham. 3568 01 ---oOo--- 02 CROSS-EXAMINATION OF CONTRA COSTA WATER DISTRICT REBUTTAL 03 BY WESTLANDS WATER DISTRICT & 04 SAN LUIS-DELTA MENDOTA WATER AUTHORITY 05 BY MR. BIRMINGHAM 06 MR. BIRMINGHAM: Mr. Hasencamp, my name Is Tom 07 Birmingham. I am the attorney that represents Westlands 08 Water District and the San Luis-Delta Mendota Water 09 Authority in connection with this phase. Deja vu all over 10 again. 11 First up, in preparing Contra Costa Water District 12 Exhibit 9, was that based on the East Bay MUD simulation 13 modeling that was submitted in connection with these water 14 rights proceeding? 15 MR. HASENCAMP: The figures shown on this table are 16 identical to the figures that East Bay MUD submitted in 17 Exhibit 4, except for the fact that the surplus ones were 18 removed. 19 MR. BIRMINGHAM: Are you familiar with the negotiations 20 that are ongoing between East Bay MUD and the Bureau of 21 Reclamation concerning amendment of East Bay MUD's contract 22 to receive water from the Central Valley Project? 23 MR. HASENCAMP: Yes. 24 MR. BIRMINGHAM: Can you tell us the status of the 25 negotiations between East Bay MUD and the Bureau of 3569 01 Reclamation concerning amendment of its CVP contract, East 02 Bay MUD's CVP contract? 03 MR. HASENCAMP: Yes. As we speak, the East Bay MUD and 04 the Bureau are continuing to negotiate their contract in 05 Folsom. And they are on the pace to try to finish the 06 contract negotiations within the next month or so, at least 07 that is their intended goal. 08 MR. BIRMINGHAM: Can you describe under what conditions 09 East Bay MUD proposes to take CVP water under its amended 10 contract. 11 MR. HASENCAMP: There are a number of conditions that 12 are being negotiated in the contract. The primary condition 13 is that if East Bay MUD's total system storage, which 14 includes the Pardee, Comanche and the reservoirs in East Bay 15 service area, if the total storage is below 500,000 16 acre-feet on October 1st, or it's forecast to be below 17 500,000 acre-feet on October 1st, then East Bay MUD would be 18 entitled to a range of between 112,000 and 133,000 acre-feet 19 from the American River. The exact number is still being 20 negotiated. That number would be subject to shortage 21 provisions if other CVP contractors are getting any 22 shortage. 23 There are other circumstances where they would also be 24 entitled water the from American River, which include taking 25 -- opportunities to take Pardee off line. 3570 01 If it is a wetter year, then they have the right to 02 take up to 150,000 acre-feet, so that they can take Pardee 03 off line and do maintenance work. 04 And there are a few other conditions that are also in 05 there, dealing with surplus water and a number of others 06 that they are still being negotiated. 07 MR. BIRMINGHAM: From where would East Bay MUD divert 08 water which it would take under its amended contract with 09 the Bureau of Reclamation? 10 MR. HASENCAMP: Either at the Folsom South Canal, which 11 comes from Nimbus or somewhere on the Lower American River 12 near the confluence of I-5, or potentially both. 13 MR. BIRMINGHAM: Under either circumstance would the 14 diversion be above the confluence of the American and 15 Sacramento River? 16 MR. HASENCAMP: Yes. 17 MR. BIRMINGHAM: I would like to turn for a moment to 18 an answer you gave me a few moments ago. You indicated that 19 if storage in East Bay MUD's reservoirs is forecasted to be 20 below 500,000 acre-feet on October 1, East Bay MUD would be 21 entitled to take 112,000 to 133,000 through acre-feet of 22 water from the American River; is that correct? 23 MR. HASENCAMP: That is what currently is being 24 negotiated. It is not finalized. 25 MR. BIRMINGHAM: Who would do the forecasting? 3571 01 MR. HASENCAMP: The way the contract is currently 02 written, it would be up to East Bay MUD to make that 03 forecast on March 1st. 04 MR. BIRMINGHAM: So, if I understand the proposal, East 05 Bay MUD on March 1 could make a forecast as to the amount of 06 water that would be in storage on October 1? 07 MR. HASENCAMP: Yes. 08 MR. BIRMINGHAM: And if that were less than -- if that 09 forecast was less than 500,000 acre-feet, then East Bay MUD 10 would be entitled to take water from the American River? 11 MR. HASENCAMP: Yes. 12 MR. BIRMINGHAM: If I understand your earlier testimony 13 concerning your experience, you are a modeler; is that 14 correct? 15 MR. HASENCAMP: A computer modeler. 16 MR. BIRMINGHAM: You use computer models to forecast 17 water supplies; is that correct? 18 MR. HASENCAMP: I used to. Now I take the water supply 19 forecast from the Bureau and use it to plan our own internal 20 operations at Contra Costa Water District. 21 MR. BIRMINGHAM: But when you were with the Department 22 of Water and Power for the City of Los Angeles, you used 23 computer models to forecast water supplies? 24 MR. HASENCAMP: Yes, I did. 25 MR. BIRMINGHAM: When you are forecasting water 3572 01 supplies, say, in March, February or March, of any given 02 year, how reliable is the forecast for water supplies for 03 the October 1 date of that year? 04 MR. HASENCAMP: Well, if you are -- if you have to 05 provide a forecast to the Bureau by March 1st, it would 06 likely be based upon February 1st hydrologic conditions. 07 And February 1st, generally, you are only about two-thirds 08 of the way through the rainy season, and the forecast is not 09 very reliable, as far as being able to pinpoint exact 10 number. You have a pretty good idea if it is a wet year. 11 This year it was obvious by February 1 that at least there 12 was going to be -- not going to be a drought year. You 13 don't have a very good forecast ability. 14 MR. BIRMINGHAM: In an average year or a below normal 15 year, your forecasting ability is not as good as in a wet 16 year? 17 MR. HASENCAMP: No, that is not true. But you're 18 dealing with a smaller number, and so an error in a drier 19 year tends to have a bigger effect than an error in a wetter 20 year. 21 MR. ETHERIDGE: Mr. Caffrey, I object. It is not 22 questioning on current, ongoing negotiations on a contract. 23 It appears to be somewhat speculative in nature. It changes 24 daily. It is not specific -- questions aren't on a specific 25 agreement that is in this record or solid. I don't see the 3573 01 relevance of it to this. 02 C.O. CAFFREY: Mr. Birmingham, you have a comment. 03 MR. BIRMINGHAM: Yes, I do. East Bay Municipal 04 Utilities District has proposed a joint settlement agreement 05 as its fair share towards meeting the 1995 Water Quality 06 Control Plan. And Westlands Water District and the San Luis 07 and Delta-Mendota Water Authority concur that under existing 08 conditions the release of water that would be made available 09 under the Joint Settlement Agreement constitutes a fair 10 share for East Bay MUD. 11 However, as we learned during the cross-examination of 12 EB MUD's witnesses, there are currently contract 13 negotiations going on which would reduce the amount of water 14 entering the Delta from the American River. Mr. Hasencamp's 15 testimony on direct concerned the amount of water that would 16 flow into the Delta as a result of the Joint Settlement 17 Agreement. 18 I want to, through these questions, find out if the 19 contract negotiations that are ongoing and the 20 implementation of the contract as East Bay MUD is currently 21 proposing it would affect the analysis that Mr. Hasencamp 22 has presented during his direct examination. I think it is 23 clearly relevant to the issue that is before the Board, and 24 it is directly related to the testimony that Mr. Hasencamp 25 presented on direct examination by Mr. Maddow. 3574 01 The questions that I am asking now are foundational, 02 and I can try to cut it short, but I want to make sure that 03 the appropriate foundation is laid. 04 C.O. CAFFREY: Thank you, Mr. Birmingham. 05 We are going to go off the record here for just a 06 second. 07 (Discussion held off the record.) 08 C.O. CAFFREY: We are back on the record. 09 I am going to allow Mr. Birmingham to continue with the 10 line of questioning, based on his explanation of its 11 relevancy and his offer to be crisp and succinct and 12 efficient in laying his foundation. But it needs to be 13 related, as you described it, to the rebuttal, primarily to 14 the rebuttal direct. 15 We will see where you take us, Mr. Birmingham. Please 16 proceed. 17 MR. BIRMINGHAM: Mr. Hasencamp, I would like to turn to 18 Contra Costa Water District Exhibit 8. 19 Mr. Hasencamp, I believe you described Contra Costa 20 Water District Exhibit 8 as a table depicting historical 21 hydrology and, based on that historical hydrology, 22 situations in which the Delta was in surplus conditions; is 23 that correct? 24 MR. HASENCAMP: Yes, according to the output of 25 DWRSIM. 3575 01 MR. BIRMINGHAM: Did the output of DWRSIM on which 02 Contra Costa Water District Exhibit 8 is based include flows 03 from the American River? 04 MR. HASENCAMP: Yes, it did. 05 MR. BIRMINGHAM: If flows from the American River were 06 eliminated or reduced, how would that affect the 07 circumstances that are depicted on Contra Costa Water 08 District Exhibit 8? 09 MR. HASENCAMP: Well, if the flows were eliminated, you 10 would have some serious problem. If they were reduced, it 11 would, depending on the magnitude of their reduction and the 12 timing of their reduction, it would have a tendency to 13 increase the amount of time that the Delta is in balance 14 condition and reduce the surplus outflow shown on this 15 table. 16 MR. BIRMINGHAM: Could you please explain what you mean 17 by when the "Delta is in balanced conditions"? 18 MR. HASENCAMP: It is when enough water is being 19 released from upstream to satisfy the requirements of the 20 Water Quality Control Plan and the consumptive uses within 21 the Delta and the exports and there is no additional water 22 on top of -- no additional water flowing out the Delta above 23 the Water Quality Control Plan requirement. 24 MR. BIRMINGHAM: If the flows fall below the flows 25 necessary to keep the Delta in balance, what are the 3576 01 obligations of the Department of Water Resources and the 02 Bureau of Reclamation? 03 MR. HASENCAMP: They are to increase the flows or 04 reduce exports to keep the Delta in balanced conditions. 05 MR. BIRMINGHAM: You testified a few moments ago that a 06 reduction in flows from the American River would, depending 07 upon the magnitude of the reduction and the timing of 08 reduction, would reduce the months in which the Delta is in 09 surplus conditions; is that correct? 10 MR. HASENCAMP: Yes. 11 MR. BIRMINGHAM: Going back to the negotiations with 12 respect to the amendment of East Bay MUD's contract with the 13 Bureau of Reclamation, have you done any kind of analysis to 14 determine what impact implementation of the contract would 15 have on the Delta? 16 MR. HASENCAMP: I have not. 17 MR. BIRMINGHAM: If storage, the forecasted storage, in 18 East Bay MUD's reservoirs is below 500,000 acre-feet, how 19 would you classify that kind of a water year? 20 MR. HASENCAMP: In a very general sense, a dry year. 21 But years after droughts East Bay MUD storage is likely to 22 be below, and they will also want to refill. Typically, dry 23 years and years following dry years would be the years that 24 more likely East Bay MUD's reservoirs would be below 500,000 25 acre-feet on October 1st. 3577 01 MR. BIRMINGHAM: If 112 or 133,000 acre-feet of water 02 were taken out of the American River system and there was an 03 associated reduction of inflow to the Delta in dry years, do 04 you have an opinion as to the affect that that would have on 05 conditions in the Delta? 06 MR. HASENCAMP: If the Delta were in a balanced 07 condition, then either the state and federal projects would 08 reduce their exports or increase their upstream releases to 09 keep the Delta in balance. If the Delta were in a surplus 10 condition, then likely the surplus would be reduced. 11 MR. BIRMINGHAM: Have you heard East Bay MUD employees 12 or consultants express a view that implementation of the 13 contract as East Bay MUD proposes to amend it would not have 14 an affect on exports from the Delta? 15 MR. HASENCAMP: I have heard them say there would be no 16 significant impact or very little impact. 17 MR. BIRMINGHAM: Do you have an opinion as to the 18 reliability of that projection or forecast? 19 MR. HASENCAMP: I think that a proper analysis was not 20 done to determine the impacts of the proposed project on the 21 Central Valley Project exporters and Delta users. 22 MR. BIRMINGHAM: Could you explain the basis of that 23 opinion? 24 MR. HASENCAMP: The results in the Draft EIR/EIS that 25 EB MUD has prepared for the American River Project were 3578 01 based on a version of PROSIM that has been updated, and the 02 updated PROSIM shows reduced inflow from the Sacramento 03 River and there is many more times that East Bay MUD can't 04 meet all of its in-basin and export obligations, even with 05 significant reductions. 06 MR. BIRMINGHAM: In your view in evaluating the Joint 07 Settlement Agreement as East Bay MUD's fair contribution 08 towards achieving the objectives in the 1995 Water Quality 09 Control Plan, should an analysis of potential impacts of 10 implementing East Bay MUD contract amendments be considered? 11 MR. HASENCAMP: I don't have an opinion on that. 12 MR. BIRMINGHAM: Thank you. 13 I have no further questions. 14 C.O. CAFFREY: Thank you, Mr. Birmingham. 15 Mr. Etheridge. 16 ---oOo--- 17 CROSS-EXAMINATION OF CONTRA COSTA WATER DISTRICT REBUTTAL 18 BY EAST BAY MUNICIPAL UTILITY DISTRICT 19 BY MR. ETHERIDGE 20 MR. ETHERIDGE: Thank you, Mr. Caffrey. 21 For the record, I am Fred Etheridge on behalf of East 22 Bay Municipal Utility District. 23 Mr. Hasencamp, I have to apologize if this is a bit 24 rough. I think your new exhibits are somewhat technical in 25 nature, and I have only had a few minutes to look at them. 3579 01 Start with some, what I will call background, for your 02 CCWD Exhibit Number 9. 03 Assuming you have a reservoir on a tributary to the 04 Delta and you are comparing to flow regimes, which I think 05 you have done here, comparing the 1961 existing flow 06 standard on the Mokelumne to East Bay MUD's proposed 07 settlement flows. 08 Are you with me so far? 09 MR. HASENCAMP: Yes. Although I didn't make that 10 comparison. That was done by -- in the East Bay MUD 11 exhibit. 12 MR. ETHERIDGE: But it is a comparison between the 13 existing 1961 standard and our proposed settlement offer; is 14 that correct? 15 MR. HASENCAMP: Yes. The operational output from that 16 comparison, yes. 17 MR. ETHERIDGE: I want to put an overhead up. This is 18 Figure 1 from East Bay MUD Exhibit Number 10; that is, the 19 testimony of Mr. Lampe. 20 C.O. CAFFREY: Already in the record. 21 MR. ETHERIDGE: It was introduced and accepted into the 22 record. 23 Mr. Hasencamp, were you here when Mr. Lampe presented 24 his testimony? 25 MR. HASENCAMP: Yes, I was. 3580 01 MR. ETHERIDGE: Would you agree that this overhead, 02 Figure 1, shows on the left a bar graph of the 1961 existing 03 release requirement and on the right EB MUD proposed 04 settlement flows? 05 MR. HASENCAMP: No, I would not. 06 MR. ETHERIDGE: Is it your understanding that the 07 existing 1961 agreement between East Bay MUD and California 08 Department of Fish and Game requires 13,000 acre-feet per 09 year to be released for fishery purposes into the Lower 10 Mokelumne River? 11 MR. HASENCAMP: Yes. If that is -- I don't know that 12 to have been the case, but I have no problem accepting that. 13 MR. ETHERIDGE: The right bar graph labeled EB MUD 14 Settlement, there are four bars to that graph or four 15 different year types. Is that correct? 16 MR. HASENCAMP: Yes. 17 MR. ETHERIDGE: Those year types, beginning on the 18 left, critically dry and then dry, below normal and wet; is 19 that correct? 20 MR. HASENCAMP: Yes, that's correct. 21 MR. ETHERIDGE: Looking at this graph, for all year 22 types, including critically dry, aren't the flows 23 represented here in excess of the existing requirement under 24 the 1961 Agreement? 25 MR. HASENCAMP: For fish flows, yes, that is the case. 3581 01 MR. ETHERIDGE: Assuming you had a reservoir -- take 02 East Bay MUD's reservoirs on the Mokelumne River. Under, I 03 will call it, a lower fishery release requirement, such as 04 the 1961 agreement, and a higher agreement, such as that we 05 are proposing in our settlement flows, does in a normal year 06 storage tend to, by storage I mean storage in the reservoir, 07 tend to ride higher when an entity is being required to 08 release a lower fishery requirement? 09 MR. HASENCAMP: Well, generally, yes, but you have to 10 look at all the release requirements, not just fishery 11 requirements. If you are only looking at fishery release 12 requirements and no other requirements, yes, that would be 13 the case. 14 MR. ETHERIDGE: If an entity was required to release 15 what I will call a higher fishery flow release requirement, 16 such as represented on Figure 1 by the EB MUD settlement, 17 its storage would tend to ride lower in the reservoir 18 because it 19 is releasing more water downstream; is that correct? 20 MR. HASENCAMP: Yes, that is correct. 21 MR. ETHERIDGE: In a wet year wouldn't a reservoir that 22 is under the lower, the 1961, release requirement tend to 23 fill up and spill sooner because its storage is simply 24 riding higher? 25 MR. HASENCAMP: Generally. Although in a wet year 3582 01 usually the fish flows don't govern at that level. Usually, 02 there is other releases in addition to the fish flows. But, 03 in general, yes. If the release requirements are less, the 04 reservoir would fill and spill sooner. 05 MR. ETHERIDGE: Under the higher fishery flow 06 requirement, represented here by EB MUD settlement flows, 07 the reservoir in that wet year would tend to spill later, if 08 at all, because it simply had to refill a capacity that was 09 represented by the higher fishery flows released downstream; 10 is that correct? 11 MR. HASENCAMP: Yes. 12 MR. ETHERIDGE: What I want to do now is look at CCWD 13 Number 9, one of your charts. 14 As you know, we have only had a few minutes to look at 15 this. What I am going to do is just pick a few years from 16 this chart. Start with 1924, and that is a C for critical 17 year; is that correct? 18 MR. HASENCAMP: Yes. That critical year was based also 19 on Table E-1. 20 MR. ETHERIDGE: Take that year 1924, going all the way 21 across to the far right column, which is total, do you see 22 that? 23 MR. HASENCAMP: Yes, I do. 24 MR. ETHERIDGE: And that number is a 10,172? 25 MR. HASENCAMP: Yes. 3583 01 MR. ETHERIDGE: Does that number represent 10,172 02 acre-feet or acre-feet -- 03 MR. HASENCAMP: Acre-feet. 04 MR. ETHERIDGE: 10,172 acre-feet, which is additional 05 flow to the Delta as a result of East Bay MUD settlement 06 flow over the existing 1961 requirement? 07 MR. HASENCAMP: Yes, according to the output in 08 EBMUDSIM. 09 MR. ETHERIDGE: Let's look at 1929. Is that listed as 10 a critically dry year? 11 MR. HASENCAMP: Yes, it is. 12 MR. ETHERIDGE: If I can do this correctly, the far 13 right column under total, that figure is 19,212; is that 14 correct? 15 MR. HASENCAMP: Yes. 16 MR. ETHERIDGE: For 1930 the figure is 14,019? 17 MR. HASENCAMP: Yes. 18 MR. ETHERIDGE: 1930 is a dry year? 19 MR. HASENCAMP: Yes. 20 MR. ETHERIDGE: 1939 is a critically dry year? 21 MR. HASENCAMP: Yes. 22 MR. ETHERIDGE: And that figure is 31,752 acre-feet of 23 additional water represented by East Bay MUD settlement 24 flows over the existing '61 requirement; is that correct? 25 MR. HASENCAMP: Yes, it is. 3584 01 MR. ETHERIDGE: Jump to 1934. The figure there, I 02 believe, in the total column is 20,322 acre-feet; is that 03 correct? 04 MR. HASENCAMP: Yes, it is. 05 MR. ETHERIDGE: So, again, this is additional water 06 represented by East Bay MUD settlement flows that is 07 reaching the Delta in critically dry years; is that 08 correct? 09 MR. HASENCAMP: Yes, according to the EBMUDSIM output. 10 MR. ETHERIDGE: I don't want to do the whole table. 11 Jump more recently to 1987. In the far right column, the 12 total column, that figure is 8,820; is that correct? 13 MR. HASENCAMP: Yes, it is. 14 MR. ETHERIDGE: The following year, 1988, which is a 15 critically dry year, the figure is 22,263; is that correct? 16 MR. HASENCAMP: Yes, it is. 17 MR. ETHERIDGE: Then in 1989, a dry year, the figure is 18 13,473? 19 MR. HASENCAMP: Yes. 20 MR. ETHERIDGE: It continues; I don't want to go 21 through each year. 1990, '91 and '92 were all critically 22 dry years; is that correct? 23 MR. HASENCAMP: Yes, they are. 24 MR. ETHERIDGE: In the far right total column, which 25 again represents the additional flows represented by East 3585 01 Bay MUD settlement flows over the existing requirement, 02 those are all positive numbers, are they not? 03 MR. HASENCAMP: For the -- 04 MR. ETHERIDGE: For 1990, '91 and '92? 05 MR. HASENCAMP: Yes, they are all positive numbers. 06 MR. ETHERIDGE: With this very brief, and we haven't 07 had time to go through this whole table, but for this very 08 brief examination of this table, what you see in dry and 09 critically dry years there are additional flows reaching the 10 Delta under East Bay MUD proposed settlement flows when 11 compared to the existing 1961 standard; is that correct? 12 MR. HASENCAMP: According to the output in EB MUD SIM, 13 yes. 14 MR. ETHERIDGE: Let's look at a different year type. I 15 know we talked a couple minutes ago about when a reservoir 16 is subject to a lower as opposed to a higher fishery flow 17 regime, its storage rides higher because it is not releasing 18 as much downstream. 19 Do you recall that? 20 MR. HASENCAMP: Yes. 21 MR. ETHERIDGE: Let's look at 1951, and that is labeled 22 as an above normal year; is that correct? 23 MR. HASENCAMP: Yes, it is. 24 MR. ETHERIDGE: In the far right column the figure 25 there is minus 36,851; is that correct? 3586 01 MR. HASENCAMP: Yes, it is. 02 MR. ETHERIDGE: Could that be because you have an above 03 normal year, a lot of water when you compare the higher East 04 Bay MUD settlement flows to the lower '61 flows, it would 05 appear logical to follow that the settlement flows would 06 contribute less flows in that wetter year because storage 07 needs to be recovered first; is that correct? 08 MR. HASENCAMP: Yes, it is. 09 MR. ETHERIDGE: Let's do the same thing in 1954. That 10 is an above normal year, is it not? 11 MR. HASENCAMP: Yes, it is. 12 MR. ETHERIDGE: In the far right total column that 13 number there is minus 29,955; is that correct? 14 MR. HASENCAMP: Yes, it is. 15 MR. ETHERIDGE: I don't want to belabor this point, Mr. 16 Caffrey. I think if you look in some other above normal 17 years you will see the same thing. You will see negative 18 numbers in the far right column in the wetter years. 19 Could that be attributed in part, Mr. Hasencamp, to 20 simply the difference between the lower and a higher 21 fishery flow regime and the affect that those have on 22 storage? 23 MR. HASENCAMP: Yes. 24 MR. ETHERIDGE: So, it is simply a choice of when the 25 resource needs the water. Is it more important to have it 3587 01 in critically dry years or in wet years? 02 MR. HASENCAMP: It depends on the timing. Again, if it 03 is a critically dry year, but a month when there is surplus, 04 it is less important. If you're looking at a general 05 statement, water is more valuable in drier years than in 06 wetter years for many agencies although there are other 07 agencies that are short during most years and so any year 08 would be an impact to certain agencies. Any impact in most 09 years would be an impact to certain agencies. 10 MR. ETHERIDGE: Now shifting a bit, in dry years 11 wouldn't it be possible for the Central Valley Project 12 and/or the State Water Project to store Mokelumne inflow to 13 the Delta in the November through May period for later 14 release in June through October? 15 MR. HASENCAMP: I don't understand the question. 16 MR. ETHERIDGE: In other words, if East Bay MUD was 17 releasing additional flows under, pursuant to the settlement 18 flows down the Mokelumne River, say, from November through 19 May, couldn't the projects, knowing that water was coming 20 into the Delta, reoperate, either retain more water in 21 storage or release less for their own use and for export 22 pumps. 23 MR. HASENCAMP: Yes. 24 MR. BIRMINGHAM: Could I ask that that question be read 25 back. 3588 01 (Record read as requested.) 02 C.O. CAFFREY: Proceed. 03 MR. HASENCAMP: Any time the Delta is in balanced 04 condition, whether it be a dry year or wet year, and there 05 is more flow coming down to the Mokelumne, the projects 06 wouldn't have to know that in advance. They would 07 automatically adjust to that and either release less or 08 potentially export more, depending on their desire. But, 09 yes, the projects would reoperate based upon these numbers 10 when the Delta is in a balanced condition. 11 MR. ETHERIDGE: So, they would not need to be in 12 precise direct relationship, one-to-one relationship, 13 between the timing of the flows released by East Bay MUD to 14 the Lower Mokelumne River in the Water Quality Control Plan 15 because the projects can reoperate to take advantage of the 16 district settlement flows? 17 MR. HASENCAMP: When the Delta is in balanced 18 condition, that is the point of my testimony, that if you 19 release water when there is already surplus, you will tend 20 to increase the surplus. But if the Delta is in balanced 21 condition, then the projects will either release more or 22 less water, depending on whether there is increase or 23 decrease in the contribution from the Mokelumne. 24 MR. ETHERIDGE: Can you tell me why the Delta export 25 interests concluded when they executed the East Bay MUD's 3589 01 settlement MOU that East Bay MUD settlement flows 02 constituted EB MUD's fair share to the Delta? 03 MR. BIRMINGHAM: Objection. Mr. Etheridge calls for 04 speculation, and Mr. Hasencamp couldn't possibly know that. 05 C.O. CAFFREY: Do you know the answer, Mr. Hasencamp? 06 MR. HASENCAMP: No. 07 MR. ETHERIDGE: Can you tell me whether it is possible 08 for the CVP or SWP to store water or reduce exports during 09 periods when the Delta is in balance? 10 MR. HASENCAMP: Could you repeat the question, please? 11 MR. ETHERIDGE: Can you tell me whether it is possible 12 for the CVP or the SWP to store water or reduce exports 13 during periods when the Delta is in balance? 14 MR. HASENCAMP: Certainly. If there is additional 15 flow to the Delta from any source when the Delta is in 16 balance, the projects will adjust their operations 17 accordingly. 18 MR. ETHERIDGE: So, they could by doing so, by 19 reoperating derive some benefit from additional settlement 20 flows? 21 MR. HASENCAMP: On the long-term average, according to 22 this table, no, it is not a benefit. In certain years there 23 is a benefit. In other years there is a detriment. If it 24 is an increase in flow, yes, there would be a benefit. 25 MR. ETHERIDGE: Would you expect the Delta to be in 3590 01 balance more often or less often during dry or critically 02 dry years? 03 MR. HASENCAMP: More often. The table takes that into 04 account. 05 MR. ETHERIDGE: Do you know what the biological 06 resources are that need protection in the Delta during June, 07 July and August? 08 MR. HASENCAMP: Not enough to testify on it. 09 MR. ETHERIDGE: Do you know if one of the purposes of 10 Water Quality Control Plan flows during those months is to 11 keep fish away from the export pumps? 12 MR. HASENCAMP: I don't have enough knowledge to 13 respond to that. 14 MR. ETHERIDGE: Can you tell me whether the CVP or SWP 15 exports are at maximum during the summer months? 16 MR. HASENCAMP: What do you mean by "maximum"? 17 MR. ETHERIDGE: The maximum entitled. I am not asking 18 you what their entitlement is. When you are looking 19 year-round, fall, winter, spring, summer, do you know 20 whether the CVP and SWP exports are at their maximum during 21 the summer months? 22 MR. HASENCAMP: They tend to pump more after July 1st 23 when the EI ratio is relaxed. That's a generalization. I 24 don't know about specific cases. 25 MR. ETHERIDGE: Wouldn't there be surplus flow in the 3591 01 Delta during the summer months if the CVP and/or SWP exports 02 were curtailed during the summer? 03 MR. HASENCAMP: Why would exports be curtailed? 04 MR. ETHERIDGE: If they were, not for whatever 05 reason. 06 MR. HASENCAMP: For a hydrologic reason or a biological 07 reason? 08 MR. ETHERIDGE: Say a requirement that is imposed upon 09 the projects. Whether it be surplus flow in the Delta 10 during the summer, if federal or state project exports were 11 curtailed during the summer by order of a regulatory entity? 12 MR. HASENCAMP: Well, my understanding is the projects 13 would do everything they can to stay in balance and reduce 14 their releases from upstream reservoirs, such as Shasta and 15 Oroville. If there were something that caused the pumps to 16 be shut down, they may or may not be able to keep the Delta 17 in balance. 18 MR. ETHERIDGE: Mr. Hasencamp, do you know how long 19 East Bay MUD has had a contract with the U.S. Bureau of 20 Reclamation on the American River? 21 MR. HASENCAMP: I have an idea. 22 MR. ETHERIDGE: Do you know that it is since 1970? 23 MR. HASENCAMP: That is my understanding. 24 MR. ETHERIDGE: Do you know that the district has made 25 payments to the Bureau on that contract during that period? 3592 01 MR. HASENCAMP: I have been told that. 02 MR. ETHERIDGE: It is not -- is it what you would 03 consider a new contract being as though it was signed in 04 1970? 05 MR. HASENCAMP: Well, it is being renegotiated, and the 06 1970 contract was for taking water out of Folsom South 07 Canal, and the current negotiations are for taking water -- 08 the option of taking water on the American River near I-5. 09 So, to that extent it is a new contract. 10 MR. ETHERIDGE: The fact that East Bay MUD contemplates 11 at some future point taking a supplement supply of water 12 from the Sacramento River is not a new fact, is it? 13 MR. HASENCAMP: Evidently not. 14 MR. ETHERIDGE: In fact, it's been out there since the 15 1970 contract was signed between East Bay MUD and the 16 Bureau; is that correct? 17 MR. HASENCAMP: It is my understanding that the one 18 basis for the contract was that the Auburn dam would be 19 built and that there would be additional water supplies 20 available on the Folsom South Canal. 21 MR. ETHERIDGE: You testified on East Bay MUD's 22 American River contract and the current negotiations on 23 that. Do you understand the American River contract of 24 East Bay MUD to be a supplemental supply, in other words, a 25 supply to the district supplemental to its Mokelumne River 3593 01 supply? 02 MR. HASENCAMP: That is my understanding. 03 MR. ETHERIDGE: What is your opinion on this point: If 04 the Board takes into account the proposed, but not yet in 05 existence, EB MUD American River supply, should it also look 06 to all other parties in this proceeding and their potential 07 supplemental water supplies that are being negotiated but 08 not yet in existence? 09 MR. HASENCAMP: I don't have that position. 10 MR. ETHERIDGE: Thank you very much. 11 That is all the questions I have, Mr. Caffrey. 12 C.O. CAFFREY: Thank you, Mr. Etheridge. 13 Any redirect, Mr. Maddow? 14 MR. MADDOW: Can we take a couple of minutes so I could 15 huddle with Mr. Hasencamp about a couple of points? I 16 think we are almost to what is -- 17 C.O. CAFFREY: To a break, you say? 18 MR. MADDOW: Yes, sir. 19 C.O. CAFFREY: Well, why don't you huddle a little and 20 we will go off the record. If you don't have any redirect, 21 then we are pretty close to a finish. 22 Let's just take a moment off the record, you can 23 consult. 24 (Discussion held off the record.) 25 C.O. CAFFREY: We are back on the record. 3594 01 Mr. Maddow. 02 ---oOo--- 03 REDIRECT EXAMINATION OF REBUTTAL EVIDENCE 04 BY CONTRA COSTA WATER DISTRICT REBUTTAL 05 BY MR. MADDOW 06 MR. MADDOW: Thank you for allowing us to take that 07 break, Mr. Chairman. We do have a couple questions, going 08 back to the CCWD rebuttal exhibits, and I placed CCWD 09 Exhibit 7 back on the overhead. 10 Mr. Hasencamp, I would like to pick a year, and I am 11 going to pick 1932, which is a dry year, and could you, 12 going from October through the end of the year give a brief 13 summary of what you understand this chart to be showing with 14 regard to the net JSA flow contribution to the Delta, month 15 by month. 16 MR. HASENCAMP: Well, evidently in the October through 17 June period they have higher release requirements for 18 fishery flows. I am not sure what happens in December, but 19 the rest of the months they have higher release 20 requirements, so they are releasing more flows. 21 As was pointed out earlier, their reservoirs, then, are 22 lower than they would be in the absence of those flows. So, 23 in July, August, September they are taking the opportunity 24 of refilling their reservoirs. So, they are releasing 25 10,000 acre-feet less each month, roughly, in July, August, 3595 01 September of 1932. And the reservoirs are recovering from 02 previously having to release water. 03 MR. MADDOW: Thank you, Mr. Hasencamp. Now I am going 04 to move to Exhibit 8 for just a moment. 05 Mr. Hasencamp, referring to CCWD Exhibit 8, which I 06 placed on the overhead, can you please take the same kind 07 of month-by-month analysis with regard to what is happening 08 in the Delta as depicted on Exhibit 8 and explain to the 09 Board what this chart shows. 10 MR. HASENCAMP: Yes. Exhibit 8 shows that in December 11 through February, even though it is a dry year, the Delta is 12 in surplus conditions, likely because there is a significant 13 amount of rain occurring below the facilities that can be 14 controlled below the controlling reservoir dams or the 15 reservoirs are encroaching on flood control and they have to 16 release more water than is needed to meet the Water Quality 17 Control Plan. 18 So, in those three months there are surplus conditions. 19 The rest of the year the outflow is equal to the outflow 20 requirements of the Water Quality Control Plan. 21 MR. MADDOW: Now, Mr. Hasencamp, I am going to direct 22 your attention to CCWD Exhibit 9. I have placed CCWD 23 Exhibit 9 on the overhead. Again, Mr. Hasencamp, directing 24 your attention to the year 1932, can you go through in 25 essence a month-by-month summary of your testimony with 3596 01 regard to what this exhibit tells us about the combination 02 of operations in the Delta and operations under the proposed 03 East Bay MUD Joint Settlement Agreement. 04 MR. HASENCAMP: Yes. East Bay MUD is releasing 05 additional flows in the October through June period of 1932. 06 However, in December through February and a little bit of 07 October, there is surplus conditions. And so any 08 contribution that is made during those periods would serve 09 to increase Delta outflow and not allow the state and 10 federal projects to recover, to recapture any of that water 11 in the upstream reservoirs. 12 For the remainder of the year, except for the month of 13 September, the Delta is in balanced conditions and there is 14 a direct relationship between the amount of water that is 15 released to the Delta and the ability of the projects to 16 either increase or decrease their upstream storage. 17 MR. MADDOW: To the extent that in July and August of 18 1932 CCWD Exhibit 9 shows that there is a net detriment to 19 the Delta of 10,159 acre-feet per month, where would the 20 water come from in order to meet the Delta water quality 21 objectives during those months, Mr. Hasencamp? 22 MR. HASENCAMP: Either the state and federal projects 23 would increase their upstream releases or decrease their 24 exports. Would be the likely outcome. 25 MR. MADDOW: Just one last question, Mr. Hasencamp. 3597 01 Mr. Etheridge engaged in a dialogue with you about the 02 status of the East Bay MUD contract. To your knowledge, Mr. 03 Hasencamp, has East Bay MUD taken deliveries pursuant to 04 that contract? 05 MR. HASENCAMP: With the possible exception of 1977 06 when they diverted water from the Delta, they have not taken 07 any from the American River under that contract. 08 MR. MADDOW: I have no further questions, Mr. 09 Chairman. 10 Thank you. 11 C.O. CAFFREY: Thank you, Mr. Maddow. We will take a 12 break now so everybody can savor what they heard and decide 13 whether they want to recross-examine. We will take a 14 twelve-minute break. 15 Thank you. 16 (Break taken.) 17 C.O. CAFFREY: We are back on the record. 18 Do any of the parties wish to recross this witness? 19 Mr. Etheridge, Mr. Birmingham. 20 Anybody else? 21 Let's take the same order, Mr. Birmingham and then Mr. 22 Etheridge. 23 ---oOo--- 24 // 25 // 3598 01 RECROSS-EXAMINATION OF CONTRA COSTA WATER DISTRICT REBUTTAL 02 BY WESTLANDS WATER DISTRICT & 03 SAN LUIS-DELTA MENDOTA WATER AUTHORITY 04 BY MR. BIRMINGHAM 05 MR. BIRMINGHAM: During his redirect examination of 06 you, Mr. Hasencamp, Mr. Maddow asked you a question about 07 Contra Costa Water District Exhibits 7, 8 and 9, and in 08 particular he asked you about 1932. And during your answers 09 to his questions about the affect of implementing the Joint 10 Settlement Agreement, you stated that during some months, 11 when the Delta was in surplus conditions, Delta exports 12 could be increased or water could be increased or water 13 could be retained in storage in CVP facilities. 14 Do you recall that? 15 MR. HASENCAMP: Yes, I do. 16 MR. BIRMINGHAM: I want to make sure that I understand 17 Contra Costa Water District Exhibits 8 and 9 properly. I 18 would like to ask you about 1935. 19 According to Contra Costa Water District Exhibit 9, 20 1939 was a below normal year; is that correct? 21 MR. HASENCAMP: According to Exhibit 9, yes. 22 MR. BIRMINGHAM: And during the period October through 23 December of that water year, the projects were in surplus 24 conditions; is that correct? 25 MR. HASENCAMP: No, that is not correct. 3599 01 MR. BIRMINGHAM: I am sorry, the Delta was not in 02 surplus condition? 03 MR. HASENCAMP: No, that is not correct. The Delta was 04 in balanced condition. 05 MR. BIRMINGHAM: During October, November and December? 06 MR. HASENCAMP: Yes. 07 MR. BIRMINGHAM: I am sorry, and you derived that from 08 information contained on CCWD Exhibit 8; is that correct? 09 MR. HASENCAMP: That's correct. 10 MR. BIRMINGHAM: From Contra Costa Water District 11 Exhibit 9 we would conclude that during those months, 12 October, November and December, of that water year, 13 implementation of the Joint Settlement Agreement would have 14 resulted in a net contribution inflow to the Delta? 15 MR. HASENCAMP: According to the output in EBMUDSIM, 16 yes. 17 MR. BIRMINGHAM: I would like to look at in 1935 the 18 months of May, June, July and August. What was the 19 condition of the Delta in those months? 20 MR. HASENCAMP: I was not around in 1935, but according 21 to the DWRSIM the Delta would be in balanced condition. 22 MR. BIRMINGHAM: I didn't have better control of him 23 when he worked for DWP. 24 C.O. CAFFREY: Believe it or not, some of us weren't 25 around in 1935 either. 3600 01 MR. BIRMINGHAM: Now, under the -- for the months May, 02 June, July, August and September of 1935, if the Joint 03 Settlement Agreement were implemented, according to the 04 simulation prepared using East Bay MUD SIM, what would be 05 the affect on Delta inflow during those months of 1935? 06 MR. HASENCAMP: East Bay MUD would have come off of a 07 period when its reservoirs were very low. And the runoff in 08 1935 was a little bit higher than it had been in previous 09 years. So, there was an opportunity, according to the 10 modeling, to refill the reservoirs. And so the Joint 11 Settlement Agreement would result in substantial decrease in 12 flow to the Delta between May and September and into October 13 of 1935. 14 MR. BIRMINGHAM: When you say "a significant decrease 15 in Delta inflow," what is the magnitude of that decrease? 16 MR. HASENCAMP: Well, it ranges from around 10,000 17 acre-feet a month decrease in May and June and around 20,000 18 acre-feet decrease in June, July -- I am sorry, in July, 19 August and September. 20 MR. BIRMINGHAM: Going back to your response to Mr. 21 Maddow -- before I do that, I would like to ask you another 22 question about Exhibits 7 and 9. 23 What is the difference between Contra Costa Water 24 District Exhibits 7 and 9? 25 Let me see if I can make the question a little more 3601 01 clear. 02 Seven and nine, if you exclude the totals and averages, 03 appear to contain identical information, but there are a 04 number of blanks in Exhibit 9 where there are numbers on 05 Exhibit 7; is that correct? 06 MR.HASENCAMP: That is correct. 07 MR. BIRMINGHAM: What do the blanks that are contained 08 on Exhibit 9 -- let me ask the question differently. 09 Why are there blanks on Exhibit 9 where there are 10 numbers on Exhibit 7? 11 MR. HASENCAMP: Because those are the months when the 12 Delta is simulated to be in surplus condition. And, 13 therefore, the increase or decrease in flow resulting from 14 the JSA would have little to no impact on the operations of 15 the state and federal projects. 16 MR. BIRMINGHAM: Why is that? 17 MS. HASENCAMP: If the Delta were in surplus condition 18 and there was additional flow reaching the Delta, then, 19 likely, the surplus would increase. Conversely, if there 20 was a reduction in flow to the Delta resulting from the JSA, 21 then the surplus would decrease. But neither of those 22 results would impact storage or exports for the projects. 23 MR. BIRMINGHAM: During your examination by Mr. 24 Etheridge, you indicated that in some of those months the 25 projects could be reoperated to retain more water in 3602 01 storage. 02 Do you recall telling him that? 03 MR. HASENCAMP: I do. 04 MR. BIRMINGHAM: It seems that, without meaning to be 05 argumentative, the answer that you just gave me is 06 inconsistent with the answer you provided to Mr. Etheridge. 07 Are they inconsistent? 08 MR. HASENCAMP: No, they are not. 09 MR. BIRMINGHAM: Why not? 10 MR. HASENCAMP: If the Delta is in balanced condition, 11 then, yes, an increase in flow could be -- could result in a 12 reduced storage withdrawal from the state and federal 13 projects. And there are many months when the Delta is in 14 balance. There are also many months when the Delta is in 15 surplus condition, and in those months they would have 16 little to no impact on the projects. 17 MR. BIRMINGHAM: Mr. Etheridge asked you specifically 18 about the months November through May of a year in which the 19 Delta is in surplus and water is being -- additional water 20 is being released by East Bay MUD. Is it correct -- let me 21 ask a foundational question. 22 You are familiar, are you not, with the operational 23 criteria for the Central Valley Project? 24 MR. HASENCAMP: Vaguely familiar, but not intimately 25 familiar. 3603 01 MR. BIRMINGHAM: Isn't it correct that during months of 02 November through March there are flood control criteria that 03 apply to the operational of CVP storage facilities? 04 MR. HASENCAMP: There are maximum levels in the 05 upstream storages so that enough flood control space is 06 reserved in upstream reservoirs, yes. 07 MR. BIRMINGHAM: So, is it correct that even if there 08 were surplus water being released -- let me restate the 09 question. 10 If there was additional surplus water being released by 11 East Bay MUD that when the Delta is in surplus, that would 12 not necessarily mean that the Bureau could retain additional 13 water in storage in its CVP storage facilities; isn't that 14 correct? 15 MR. HASENCAMP: That is right. If they are at flood 16 control releases, then by definition they can't reduce their 17 releases because of chances in the Delta inflow. 18 MR. BIRMINGHAM: I would like to go back to the answer 19 that you gave Mr. Maddow with respect to increasing 20 exports. 21 You're familiar with the criteria that apply to export 22 of water from the Delta by state and federal projects? 23 MR. HASENCAMP: Somewhat familiar. 24 MR. BIRMINGHAM: Is it correct, Mr. Hasencamp, that 25 during months when the Delta is in surplus conditions, the 3604 01 projects export water at the maximum rate that it is 02 permissible to fill storage and meet demand south of the 03 Delta? 04 MR. HASENCAMP: In general, the answer is yes. 05 Although there are a number of times when something else is 06 governing other than the surplus water conditions. But, In 07 general, yes, when there is -- if there is surplus, the 08 projects will, to the extent they can, increase their 09 diversions and fill their off-stream storages. 10 MR. BIRMINGHAM: In general, if the Delta is in 11 surplus, adding additional water to the surplus conditions 12 will not result in increased exports? 13 MR. HASENCAMP: That's true. 14 MR. BIRMINGHAM: Looking at Exhibit 9, I want to make 15 sure I understand the significance of your testimony. If we 16 look at Exhibit Contra Costa Water District 8 for the month 17 of July, in only three of the years depicted, in Contra 18 Costa Water District Exhibit 8, was the Delta in surplus 19 conditions in the month of July? Is that correct? 20 MR. HASENCAMP: Two months, yes. 21 MR. BIRMINGHAM: Excuse me, two. I beg your pardon. 22 If we look at Contra Costa Water District Exhibit 9 for 23 the month of July, for the period 1923, the Joint Settlement 24 Agreement would result in reduced inflows to the Delta in 25 July of 1923; is that correct? 3605 01 MR. HASENCAMP: Yes, that is true. 02 MR. BIRMINGHAM: In 1925, it would result in reduced 03 inflows to the Delta; is that correct? 04 MR. HASENCAMP: Yes. According to EBMUDSIM, that's 05 true. 06 MR. BIRMINGHAM: In 1928 implementation of the Joint 07 Settlement Agreement would result in reduced flows into the 08 Delta? 09 MR. HASENCAMP: Yes. 10 MR. BIRMINGHAM: In 1932 for the month of July, 11 implementation of the Joint Settlement Agreement would 12 result in reduced inflows into the Delta; is that correct? 13 MR. HASENCAMP: Yes. 14 MR. BIRMINGHAM: For 1935, implementation of the Joint 15 Settlement Agreement would result in reduced inflows into 16 the Delta in the month of July; is that correct? 17 MR. HASENCAMP: That is. 18 MR. BIRMINGHAM: The same is true with respect to 1938; 19 is that correct? 20 MR. HASENCAMP: Affirmative. 21 MR. BIRMINGHAM: I am sorry, 1937. 22 MR. HASENCAMP: Yes. 23 MR. BIRMINGHAM: For 1940, implementation of the Joint 24 Settlement Agreement would result in reduced inflows into 25 the Delta for the month of July; is that correct? 3606 01 MR. HASENCAMP: Yes. 02 MR. BIRMINGHAM: The same is true with respect to 1943; 03 is it not? 04 MR. HASENCAMP: Yep. 05 MR. BIRMINGHAM: 1945? 06 MR. HASENCAMP: Yes. 07 MR. BIRMINGHAM: 1947? 08 MR. HASENCAMP: No. 09 MR. BIRMINGHAM: 1946? 10 MR. HASENCAMP: Yes. 11 MR. BIRMINGHAM: '48? 12 MR. HASENCAMP: Yes. 13 MR. BIRMINGHAM: We can go down the line and for 14 virtually all of the years for July isn't it correct that 15 implementation of the Joint Settlement Agreement would 16 result in reduced inflows in the Delta? 17 MR. HASENCAMP: According to EBMUDSIM, the majority of 18 Julys, yes. 19 MR. BIRMINGHAM: Now let's look at August on Contra 20 Costa Water District Exhibit 8. For each of the years 21 depicted on Contra Costa Water District Exhibit 8 there are 22 only two years in which the Delta was in surplus for the 23 month of August. Is that correct, Mr. Hasencamp? 24 MR. HASENCAMP: Yes, according to this study. 25 MR. BIRMINGHAM: If we look at Contra Costa Water 3607 01 District Exhibit 9, for the month of August, you would agree 02 with me that in the vast majority of years implementation of 03 the Joint Settlement Agreement would result in a reduction 04 of the inflow into the Delta for the month of August? 05 MR. HASENCAMP: I would agree with you. 06 MR. BIRMINGHAM: Do I understand your testimony to be 07 to the effect that in analyzing the benefit of the Joint 08 Settlement Agreement, from your perspective, it is more 09 appropriate to focus on the months when the Delta is in 10 balance because it is in those months in which additional 11 inflow is needed to relieve the projects from some portion 12 of their obligation to release water to maintain water 13 quality standards in the Delta? 14 MR. HASENCAMP: It is up to the State Board to 15 determine who has the obligation to meet the standards, but 16 the months when the Delta is in balance are the months when 17 water is needed from somebody to meet the standard. 18 MR. BIRMINGHAM: I have no further questions. 19 C.O. CAFFREY: Thank you, Mr. Birmingham. 20 ---oOo--- 21 RECROSS-EXAMINATION OF CONTRA COSTA WATER DISTRICT REBUTTAL 22 BY EAST BAY MUNICIPAL UTILITY DISTRICT 23 BY MR. ETHERIDGE 24 MR. ETHERIDGE: Thank you, Mr. Caffrey. I just have a 25 few questions for Mr. Hasencamp, and then I think we will be 3608 01 near the end of Phase IV, won't we? 02 C.O. CAFFREY: Pretty close. We are contemplating 03 letting the Board Members ask a few questions. 04 MR. ETHERIDGE: At lunch there was a Mexican mariachi 05 band playing at the restaurant a couple blocks away. I 06 thought it might be an idea to ask them to come down here 07 and play in celebration of the end of Phase IV. 08 C.O. CAFFREY: I think we would have all enjoyed that. 09 MR. ETHERIDGE: Mr. Hasencamp, Fred Etheridge for East 10 Bay MUD. I just have a few questions for you on recross. 11 On redirect examination Mr. Maddow asked you a question 12 on Contra Costa Exhibit 7, and you focused on the year 1932 13 and the months of July, August and September. Now, is it 14 your point from that that Contra Costa wants more water 15 above EB MUD settlement flows in July, August and 16 September? 17 MR. HASENCAMP: I am testifying to the results that I 18 have analyzed from EBMUDSIM. I am not testifying on behalf 19 of the position of Contra Costa Water District. 20 MR. ETHERIDGE: If that were Contra Costa's position -- 21 let me put an overhead up here. We have seen this one 22 before. 23 Mr. Hasencamp, could you understand why East Bay MUD is 24 confused in this proceeding if Contra Costa is advocating 25 that the district contribute more flows for the Delta in the 3609 01 months of July, August and September, while earlier U.S. 02 Fish advocated that State Board set EB MUD's flows mimicking 03 the natural hydrograph, could you understand why we would be 04 confused by those contrary positions? Let me back up. 05 This is DOI Exhibit 9-B that was the subject of 06 considerable testimony and questioning. You can see there 07 on the graph unimpaired 1921 to '94 flows at Pardee. Do you 08 see that? 09 MR. HASENCAMP: Yes, I do. 10 MR. ETHERIDGE: I don't know if you were here earlier 11 when I cross-examined Mr. Guinee on this, and East Bay MUD 12 does have some issues with the fact that they used 70 years 13 of unimpaired flows rather than breaking out unimpaired 14 flows by specific year type. 15 By just taking that graph of unimpaired flows, if you 16 look at the months of July, August and September, this is 17 for all -- for over a 70-year period of unimpaired flow. 18 Can you see that there is relatively low natural inflow in 19 the Mokelumne watershed on that graph? 20 MR. HASENCAMP: Yes. It is low compared to the late 21 winter and spring months. 22 MR. ETHERIDGE: Isn't it fairly low, especially when 23 you get into August and September, isn't it about as low as 24 it gets in the entire 52-week period or the 12-month period? 25 MR. HASENCAMP: It appears that way in the table. 3610 01 MR. ETHERIDGE: Given that we have one party advocating 02 East Bay MUD -- that the State Board impose a flow regime on 03 East Bay MUD mimicking the natural hydrograph when it is 04 very low and what appears to be Contra Costa saying that 05 East Bay MUD should contribute more flows during these 06 months, can you understand why -- 07 MR. MADDOW: Mr. Chairman, I will just object because 08 I think Mr. Etheridge has mischaracterized the testimony 09 that Mr. Hasencamp has given. I don't believe that Mr. 10 Hasencamp has advocated. He has displayed the results of 11 the simulations. 12 C.O. CAFFREY: I will note the objection. If that is a 13 mischaracterization of your testimony, sir, you need not 14 answer the question the way it is posed. 15 MR. HASENCAMP: I don't believe Mr. Etheridge finished 16 his question. 17 MR. ETHERIDGE: Can you understand why EB MUD would 18 feel confused and be caught in a cross fire? If one entity 19 is advocating one flow regime and another entity appears to 20 be advocating an entirely different flow regime for flows 21 out of the Mokelumne River? 22 MR. BIRMINGHAM: I am going to object to the question 23 on the grounds it goes outside the scope of the redirect by 24 Mr. Maddow. I don't believe Mr. Maddow asked Mr. Hasencamp 25 any questions comparing positions being advocated by any of 3611 01 the parties. 02 MR. MADDOW: Mr. Chairman, I would like to join in the 03 objection for the reason I stated a few moments ago. I 04 don't believe there is any portion of Mr. Hasencamp's 05 testimony in which he has advocated that East Bay MUD be 06 compelled to operate in any particular manner. 07 What he has done is to display the results of the 08 analysis of the imposition of the proposed Joint Settlement 09 Agreement from the standpoint of its potential for impact on 10 Delta water quality matter. 11 C.O. CAFFREY: Just a moment. 12 (Discussion held off the record.) 13 C.O. CAFFREY: I am going to sustain the objection 14 because, technically, we have a situation where -- sustain 15 the objection because the rule on redirect is that it -- or 16 on recross is that it has to stay within the scope of 17 redirect. The rule for the direct and cross is different. 18 You are allowed during cross-examination to go beyond 19 that scope. However, I believe even though that is the 20 ruling, we are going to sustain the objection. I believe 21 Mr. Stubchaer has a comment. 22 C.O. STUBCHAER: I just want to state that I can see 23 how a person would be confused with conflicting 24 requirements; one for on the fish in a different time of the 25 year and the water for user in another time of the year. 3612 01 MR. ETHERIDGE: Thank you, Mr. Caffrey. That concludes 02 my recross questions. 03 C.O. CAFFREY: Thank you, Mr. Etheridge, and; 04 Thank you, Mr. Stubchaer. 05 That takes us to where? We never did get, when we were 06 doing direct and cross-examination of the rebuttal 07 witnesses, we did not ask the staff if they had questions. 08 So we are asking you now, do you have questions on direct 09 rebuttal and redirect rebuttal? 10 MR. HOWARD: No questions. 11 C.O. CAFFREY: Nothing from staff. 12 Anything from the Board Members? 13 Mr. Stubchaer has a question. 14 ---oOo--- 15 RECROSS-EXAMINATION OF CONTRA COSTA WATER DISTRICT REBUTTAL 16 BY BOARD MEMBERS 17 C.O. STUBCHAER: This is probably a question I should 18 have asked during East Bay MUD's direct, and maybe it was 19 answered. I am going to ask it again. 20 Mr. Hasencamp, if you know you can answer if you know. 21 You took Figure 7, as I understand it, rearranging 22 Table E-1 from East Bay MUD Exhibit 4 as the heading 23 states. Just put it in water years instead of some other 24 year context. It says that it is the incremental inflow 25 resulting from the Joint Settlement Agreement versus the 3613 01 1961 Department of Fish and Game agreement. My question is: 02 Do you know if the reservoirs are being operated to the 03 1961 Fish and Game agreement now or to some later agreement, 04 such as the FERC agreement? If you know. 05 MR. HASENCAMP: I do not know. 06 C.O. STUBCHAER: Thank you. 07 C.O. CAFFREY: Any other questions from Board Members? 08 MR. BIRMINGHAM: Mr. Caffrey. 09 C.O. CAFFREY: Mr. Birmingham. 10 MR. BIRMINGHAM: I believe that Mr. Stubchaer's 11 question was answered during the direct examination of EB 12 MUD's witnesses, and I believe that there was testimony to 13 the effect, and Mr. Etheridge I am sure will correct me if I 14 am wrong, that there was testimony to the effect that East 15 Bay MUD is currently operating to a different standard on a 16 voluntary basis, different from the 1961 agreement. 17 MR. ETHERIDGE: That is correct. The existing 18 requirement upon East Bay MUD, and this was in Mr. Lampe's 19 testimony, East Bay MUD Exhibit 10, that existing 20 requirement is the 1961 agreement between EB MUD and 21 California Department of Fish and Game. And that is 22 required by both under the district State Board licenses and 23 its FERC license. But after reaching agreement with the 24 resource agencies in the FERC proceeding on settlement 25 flows, it agreed to voluntarily reduce those FERC settlement 3614 01 flows as an indication of the fact that they work. But it 02 is not required. The existing requirements remain as the 03 1961 agreement. 04 C.O. CAFFREY: Thank you, Mr. Etheridge. 05 Yes, Mr. Brown. 06 MEMBER BROWN: I asked that question. 07 C.O. CAFFREY: Mr. Brown did ask that question. 08 C.O. STUBCHAER: So, my memory failed me. I apologize. 09 C.O. CAFFREY: As did mine. 10 Thank you for reminding us, Mr. Brown, Mr. Etheridge, 11 Mr. Birmingham. 12 Anything else from the Board Members, then? 13 We are at that point, then, Mr. Maddow, do you wish to 14 offer your three exhibits? 15 MR. MADDOW: Yes. Thank you, Chairman Caffrey. 16 Contra Costa Water District offers CCWD Exhibits 7, 8 17 and 9. And we will serve copies on all parties on Friday of 18 this week by mail and deliver the requisite number to the 19 State Board staff. 20 C.O. CAFFREY: Any objections to receiving those 21 exhibits? 22 C.O. STUBCHAER: Mr. O'Laughlin. 23 MR. O'LAUGHLIN: Does that include the supplement ones, 24 9-B, C? 25 MR. MADDOW: Mr. O'Laughlin, I believe those exhibits 3615 01 were Department of Interior exhibits. The one which Mr. 02 Etheridge showed was, I believe, Department of Interior 03 Exhibit 9-B which, I -- 04 C.O. CAFFREY: The other transparencies were already 05 identified in the record. That is correct. 06 Seeing and hearing no objection, those three exhibits, 07 rebuttal exhibits, are accepted into the record. 08 That completes -- with the exception of closing 09 statements by parties, that completes this phase, Phase IV. 10 Ms. Leidigh, I believe we've been -- on written closing 11 we've been allowing four or five weeks? What do you 12 recommend? 13 MS. LEIDIGH: Generally, it's been four weeks, or about 14 30 days. 15 C.O. CAFFREY: I remember about several phases ago Mr. 16 O'Laughlin raised the issue that sometimes we were running a 17 little behind on the transcripts, that was causing some 18 problems for some of the parties. 19 Have we solved that problem? 20 Mr. Etheridge. 21 MR. ETHERIDGE: If I could? Given several days' worth 22 of hearing we have had on Phase IV, we will have a lot of 23 transcripts. I still believe there is a two or three, 24 approximate two or three delay, between a hearing date and 25 receiving the transcripts. Given that, can we -- I would 3616 01 request that we have five weeks after today to file the 02 closing written briefs. 03 C.O. CAFFREY: I am inclined to go along with that. As 04 opposed to saying four and then having to stretch it out to 05 five if things don't work out, let's just bite the bullet. 06 Is that sufficient for everybody, five weeks? Have we 07 been setting dates? I forget. 08 MS. LEIDIGH: Yes, we have been setting dates. Five 09 weeks would be October 21st. 10 MR. CAMPBELL: October 21st is a hearing day, and it 11 may be difficult, not impossible, of course, for a number of 12 attorneys to be here and to make sure that the brief got out 13 the door that day. My recommendation would be to have the 14 briefs due on a date when there isn't a hearing date 15 scheduled. 16 C.O. CAFFREY: Anybody have a hearing calendar? 17 MS. LEIDIGH: It is a hearing day. 18 C.O. CAFFREY: What about the days before and after? 19 MS. WHITNEY: The 22nd is not a hearing day. 20 C.O. CAFFREY: The 22nd is not a hearing day. Let's 21 make it the 22nd. 22 MR. ETHERIDGE: I was going to suggest the 23rd, a 23 month from September 16th takes it to October 16th. A week 24 later is Friday, October 23rd, a Friday. I know we have no 25 hearing dates on Friday. 3617 01 C.O. CAFFREY: I have no problem with the 23rd. That 02 is a Friday. Lets make it October 23rd, then. That will be 03 the submission date for closing arguments for Phase IV. 04 Anything else before we adjourn? 05 We will be back here on Tuesday morning. 06 Mr. Sandino. 07 MR. SANDINO: Mr. Chairman, since we have many of the 08 parties here, it might not be a bad idea to discuss the 09 order of testimony. 10 C.O. CAFFREY: That is an excellent suggestion. 11 I believe -- Ms. Whitney, do you have a list of the 12 parties who have filed to submit cases in chief for Phase 13 V? 14 MS. WHITNEY: Yes. 15 C.O. CAFFREY: Let's read what we have here in the 16 order that we have them. 17 We have the Department of Interior, Department of Water 18 Resources, City of Stockton, South Delta Water Agency, 19 Stockton East Water District, Contra Costa Water District, 20 County of Trinity, San Luis and Delta-Mendota Water 21 Authority, San Joaquin River Group Authority and San Joaquin 22 County. That is the order. 23 Have we left anybody out? 24 Mr. Brandt. 25 MR. BRANDT: May I make a proposal? We are first, and 3618 01 we'd rather be -- we have -- we do not have a major case for 02 V. We have a couple of pieces of information on -- 03 C.O. CAFFREY: That is what you said last time. 04 MR. BRANDT: Our case was fairly short. It's just not 05 my choice. 06 C.O. CAFFREY: I couldn't resist. 07 Go ahead. 08 MR. BRANDT: I've spoken with South Delta. I've spoken 09 with DWR. They have a major case. And DWR is following us? 10 I thought it might make sense for them, they have a somewhat 11 coordinated case, that those two go first. 12 C.O. CAFFREY: South Delta and DWR first, and then you 13 third? 14 MR. BRANDT: Actually, I would like to be as far down 15 as you are willing to put me. So, be toward the end. 16 And Contra Costa, I think, indicated that they would be 17 potentially ready, as well. City of Stockton has not been 18 here today, so I have not been able to see them. 19 C.O. CAFFREY: Mr. Maddow. 20 MR. MADDOW: Mr. Chairman, I was contacted a couple of 21 weeks ago by counsel for Stockton and Stockton East, and 22 because of some scheduling problems that they were 23 anticipating, assuming that the hearing started at about the 24 time that we are going to be starting, they asked if Contra 25 Costa would be willing to precede them in the order, and I 3619 01 told them yes. 02 I don't know if that simplifies or complicates what you 03 are trying to do. 04 C.O. CAFFREY: Actually, I don't -- Ms. Leidigh, did we 05 have any preference in the order of cases in chief? 06 MS. LEIDIGH: No. We were just estimating. 07 C.O. CAFFREY: I am numbering these as each of you come 08 and then I will read off another order and see if that 09 works. 10 Mr. Sandino. 11 MR. SANDINO: I don't know if this helps, but 12 Department of Water Resources is willing to proceed on 13 Tuesday since we have one of the major, I think it is safe 14 to say, one of the major cases in chief. It might make some 15 sense to have us go first. 16 C.O. CAFFREY: All right, sir. 17 Mr. Maddow, was it your impression from the folks from 18 Stockton and Stockton East that they would then want to 19 follow you? The order I have here now is perhaps have you 20 third and then -- or do they want to be pushed off as long 21 as we can push them off? 22 MR. MADDOW: I did not get that impression. I did get 23 the impression, however, that they were hoping that we would 24 be able to precede them. Perhaps they thought we were going 25 to buy a whole lot of time, which is not the case. 3620 01 Seriously, I think if you were to put them after us in 02 the order, I think that would satisfy the request that was 03 made to me. 04 C.O. CAFFREY: Who was -- somebody wanted to speak a 05 moment ago, did I cut you off, Mr. Brandt? 06 MR. BRANDT: No. 07 MEMBER FORSTER: Mr. Herrick put up his hand. 08 MR. HERRICK: In you want us to go on second, that is 09 perfectly okay with us. We will be ready. 10 C.O. CAFFREY: Thank you, sir. 11 Let's see what we have here. 12 Let's try this order, then: Department of Water 13 Resources, South Delta Water Agency, Contra Costa Water 14 District, City of Stockton, Stockton East, Department of 15 Interior, County of Trinity, San Luis and Delta-Mendota 16 Water Authority, San Joaquin River Group and San Joaquin 17 County. 18 Mr. Porgens. 19 MR. PORGENS: I'm sorry, I just walked in. Are you 20 taking a list for Phase V? 21 C.O. CAFFREY: Yes, we are. 22 MR. PORGENS: Can I be on it? 23 C.O. CAFFREY: Do you want to present a case in chief 24 in Phase V, sir? 25 MR. PORGENS: No. 3621 01 C.O. CAFFREY: We will recognize you as a participating 02 party, but not presenting a case in chief; is that correct? 03 MR. PORGENS: That is correct. 04 C.O. CAFFREY: Thank you, sir. 05 Was that order that I read satisfactory? 06 We will start that way, and if we need to accommodate 07 others, you can work out accommodations among yourselves to 08 try and help out with witnesses. 09 I also want to say that Mr. Sexton talked to me earlier 10 today about the difficulties sometimes with witnesses. We 11 recognize that from time to time there are problems, and we 12 tried to accommodate that. To try to give dates specific as 13 to when you will be on is impossible because we never know 14 how long cross-examination is going to take. So we will try 15 to help you out if you have a particular problem. We have 16 done that three or four times in the process. You have all 17 been very generous about allowing others to interrupt the 18 process for a short presentation of a witness, what have 19 you. We appreciate that. We will try to continue along 20 that way. Mr. O'Laughlin. 21 MR. O'LAUGHLIN: Chairman Caffrey, will we be seeing a 22 supplement notice coming out from the Board in regards to 23 hearing dates for November, any time soon? 24 MS. WHITNEY: Those haven't been confirmed yet. 25 Maureen sent me some dates yesterday or the day before. I 3622 01 believe she sent them to the Board Members, too. But she 02 has not confirmed those with me. 03 C.O. CAFFREY: Concerned with the availability of 04 Board Members, is that the point? 05 MS. WHITNEY: Yes. 06 C.O. CAFFREY: We will be putting something out fairly 07 soon, as soon as we get it straightened out internally, Mr. 08 O'Laughlin. 09 Did you have something else, Ms. Leidigh? 10 MS. LEIDIGH: No. 11 C.O. CAFFREY: Is there anything else that we need to 12 discuss that would be helpful before we adjourn? 13 We will back here Tuesday 9:00 a.m. to start Phase V. 14 Thank you. 15 ---oOo--- 16 17 18 19 20 21 22 23 24 25 3623 01 REPORTER'S CERTIFICATE 02 03 04 STATE OF CALIFORNIA ) 04 ) ss. 05 COUNTY OF SACRAMENTO ) 05 06 06 07 08 I, ESTHER F. WIATRE, certify that I was the 09 official Court Reporter for the proceedings named herein, 10 and that as such reporter, I reported in verbatim shorthand 11 writing those proceedings; 12 That I thereafter caused my shorthand writing to be 13 reduced to typewriting, and the pages numbered 3431 through 14 3622 herein constitute a complete, true and correct record 15 of the proceedings. 16 17 IN WITNESS WHEREOF, I have subscribed this certificate 18 at Sacramento, California, on this 30th day of September 19 1998. 20 21 22 23 23 24 ______________________________ 24 ESTHER F. WIATRE 25 CSR NO. 1564 25