3863 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 23, 1998 22 9:00 A.M. 22 23 23 24 24 Reported by: ESTHER F. WIATRE 25 CSR NO. 1564 25 3864 01 APPEARANCES 01 BOARD MEMBERS: 02 02 JOHN CAFFREY, COHEARING OFFICER 03 JAMES STUBCHAER, COHEARING OFFICER 03 JOHN W. BROWN 04 MARY JANE FORSTER 04 MARC DEL PIERO 05 05 STAFF MEMBERS: 06 06 WALTER PETTIT, EXECUTIVE DIRECTOR 07 VICTORIA WHITNEY, CHIEF BAY-DELTA UNIT 07 THOMAS HOWARD, SUPERVISING ENGINEER 08 08 COUNSEL: 09 09 WILLIAM R. ATTWATER, CHIEF COUNSEL 10 BARBARA LEIDIGH 10 11 11 12 12 13 13 14 14 15 15 16 16 17 17 18 18 19 19 20 20 21 21 22 22 23 23 24 24 25 25 3865 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 3866 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 3867 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 3868 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 3869 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 3870 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 3871 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 3872 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 3873 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 3874 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 3875 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 3876 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 3877 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 3878 01 INDEX 01 02 PAGE 02 03 RESUMPTION OF HEARING 3879 03 04 AFTERNOON SESSION 3987 04 05 POLICY STATEMENT: 05 BY MR. MICHAEL LOCKE 3879 06 06 SOUTH DELTA WATER AGENCY: 07 07 ALEX HILDEBRAND 08 CONTINUED CROSS-EXAMINATION: 08 BY MR. JACKSON 3885 09 CROSS-EXAMINATION: 09 BY MR. MADDOW 3901 10 BY MR. CAMPBELL 3905 10 BY MS. ZOLEZZI 3989 11 BY MR. O'LAUGHLIN 3994 11 BY MR. BIRMINGHAM 4018 12 BY MR. TURNER 4071 12 BY STAFF 4071 13 BY BOARD MEMBERS 4077 13 14 CONTRA COSTA WATER DISTRICT: 14 15 PANEL: 15 K.T. SHUM 16 WILLIAM HASENCAMP 16 RICHARD DENTON 17 DAVID BRIGGS 17 DIRECT EXAMINATION: 18 BY MR. MADDOW 3912 18 CROSS-EXAMINATION: 19 BY MR. HERRICK 3941 19 BY MR SEXTON 3965 20 BY BOARD MEMBERS 3981 20 21 ---oOo--- 22 23 24 25 3879 01 SACRAMENTO, CALIFORNIA 02 WEDNESDAY, SEPTEMBER 23, 1998 03 ---oOo--- 04 C.O. CAFFREY: Good morning and welcome back. 05 Good morning, Mr. Jackson. If you will bear with me a 06 moment, we have a -- shall we call it an exagenda item 07 before we get back to your cross-examination? 08 I had promised Mr. Simmons yesterday that we would hear 09 from Mr. Michael Locke in a policy statement. Mr. Locke is 10 the President of the San Joaquin Partnership for the City of 11 Stockton. So we will hear from Mr. Locke. 12 Good morning, sir. 13 MR. LOCKE: Good morning, Mr. Chairman. 14 C.O. CAFFREY: Please be mindful this is a quasi 15 judicial proceeding. Just for your information, there is a 16 five-minute limit on policy statements. I am sure Mr. 17 Simmons told you that. 18 And we welcome you, sir, and please proceed. 19 MR. LOCKE: Thank you, Mr. Chairman, Members of the 20 Board. 21 I appreciate the opportunity to participate on behalf 22 of City of Stockton this morning as it relates to the issue 23 of wastewater management and its cost. As you now noted, I 24 am head of San Joaquin Partnership, which is the economic 25 development corporation as well as the San Joaquin Business 3880 01 Council, which is a parallel organization for business 02 climate in San Joaquin County. 03 Our real task is the attraction of jobs and the 04 development of business to overcome what has been an endemic 05 10 to 15 percent unemployment rate in San Joaquin County. 06 We continue to be burdened with a rate that is twice to 07 three times that of the state average. Both of the 08 organizations we represent have been working significantly 09 with the City of Stockton on their wastewater management 10 issue and the resultant fee impact that that generates. 11 To understand a little bit of the issue on the 12 regulatory impact, I would like to at least note a couple of 13 examples. One is the Del Monte Corporation, in seeking to 14 expand its current operation in Stockton, where it has 1500 15 employees. Decision was made not to make its capital 16 investment in Stockton, but to consolidate its operations 17 further down the valley. 18 Part of that decision was an estimated 60- to 19 $65,000,000 cost of additional wastewater management 20 facilities prior to pretreat or in terms of connection fees 21 that negated their investment. Their current closure 22 package will go through 2001 with a loss of 1500 direct 23 jobs, and we think an equal number of indirect jobs to the 24 community. 25 The second is in an area of job attraction. We 3881 01 competed recently in the location of the Kikkoman facility, 02 which ultimately went to Folsom. Stockton was selected as 03 one of the final competitors. However, the wastewater 04 connection fee was $17,000,000, based on the proposed 05 standards that are before us. 06 The nearest competitor proposed a rate of 1.5 million. 07 Obviously, we no longer were a competitor in that project. 08 So, when we began to look at where the issue over rate 09 setting concludes after standards are established and the 10 cost determined, we basically are noncompetitive with 11 projects over 25,000 gallons per day in terms of discharge. 12 In fact, I just completed an estimate for a project of 13 250,000 gallons a day, and we had an eight and three-quarter 14 million dollar connection fee proposal. That precludes 15 projects of that characteristic. 16 We understand the significant amount of potential cost 17 for future plan improvements is driven by the San Joaquin 18 River's dissolved oxygen issue. We think we are as equally 19 concerned about water quality issues as we are about the 20 economic structure and the viability of the community and 21 the resultant impact on quality of life of the citizens of 22 Stockton. 23 We continue to look at this kind of a costly treatment 24 measure that is being considered and are told by City staff 25 that we must comply with the very strict requirements that 3882 01 regulatory agencies are not -- do not appear, seem, to be 02 concerned with the implementation cost or the cost benefit. 03 Frankly, we have a difficult time recognizing the lack of 04 relationship in terms of the economic result on the 05 community. 06 What we understand the Board's responsibility in the 07 area of water quality and in discharge standards to 08 navigable streams, we also need to look at the economic 09 impact on a single agency or community, and is it to be 10 reasonable in setting implementing standards. 11 The City of Stockton has spent a great deal of rate 12 payer money to look at the problem and to develop reasonable 13 solutions. The present proposal that will be put before you 14 on the part of the City provides a potential win-win for the 15 logical approach to improvement water quality without 16 penalizing one group of citizens. 17 I am here to let you know these issues are real 18 consequences to the community of Stockton. We understand 19 the difficulty of addressing water quality issues. But if 20 you are presented with a credible alternative, we hope you 21 will carefully consider and recognize the importance of that 22 decision in terms of the future economic base of the City of 23 Stockton. 24 I appreciate your time this morning. 25 C.O. CAFFREY: Thank you, Mr. Locke. We appreciate 3883 01 your taking the time to be here. 02 Ms. Forster has a comment or question. 03 MEMBER FORSTER: I am just putting this out there, Mr. 04 Locke. I don't expect you to, perhaps, answer it. Maybe 05 the City of Stockton will answer it. But I would be very 06 interested in knowing why a connection fee would be 07 $17,000,000. I don't know what the discharge is, if it is 08 something that needs a great deal of pretreatment. 09 Since you are giving an economic, community-based 10 presentation, you might not be able to answer that. But 11 since you are speaking on the issue, those who do come up 12 and explain it, I want it explained. 13 You want to try? Or do you -- is it out of realm? 14 MR. LOCKE: I know the driving factor was suspended 15 solids, had a heavy salt content in the brining process. As 16 to how that gets calculated, no, I am not competent to 17 address the specifics of how they calculated the fee. We do 18 know it took us out of consideration. 19 C.O. CAFFREY: Well, when we hear from the City of 20 Stockton when they present their case, I expect we will hear 21 something related to that, Ms. Forster, and that will afford 22 you the opportunity to cross-examine and find out more about 23 the subject. 24 MR. LOCKE: Thank you. 25 C.O. CAFFREY: Thank you very much, Mr. Locke, for 3884 01 taking the time to be here. We appreciate your comments. 02 Mr. Jackson, let me just -- as Mr. Jackson is coming up 03 to resume his cross-examination of Mr. Hildebrand -- 04 Good morning, Mr. Hildebrand. 05 MR. HILDEBRAND: Good morning. 06 C.O. CAFFREY: Good morning, Mr. Herrick. 07 MR. HERRICK: Good morning. 08 C.O. CAFFREY: Let me just read the order of the names 09 that I have here for the cross-examination of Mr. 10 Hildebrand. 11 After Mr. Jackson we have Mr. Maddow. Then we have Mr. 12 Campbell, Mr. O'Laughlin, Ms. Zolezzi. I don't know that 13 she is here yet. And Mr. Birmingham who won't be here, I 14 believe, until this afternoon, so, if we go as far as we can 15 this morning and finish and have not yet gotten to Mr. 16 Birmingham or Ms. Zolezzi, we will start Contra Costa's case 17 in chief, go as far as we can and then come back and finish 18 with Mr. Hildebrand when the other two cross-examiners 19 arrive. 20 That will be the plan. If that doesn't create 21 significant heartburn for somebody, we will proceed with 22 that. 23 Mr. Jackson, sir, please come forward now. I promise 24 you this is your real resumption. Go ahead. 25 MR. JACKSON: Thank you, sir. 3885 01 Mr. Stubchaer, would you let me know in 30 minutes that 02 I am done? 03 C.O. STUBCHAER: I will be happy to. 04 C.O. CAFFREY: No matter what happens? 05 MR. JACKSON: I am out of here in 30 minutes. 06 C.O. CAFFREY: Go ahead, sir. 07 ---oOo--- 08 CONTINUED CROSS-EXAMINATION OF SOUTH DELTA WATER AGENCY 09 BY REGIONAL COUNCIL OF RURAL COUNTIES 10 BY MR. JACKSON 11 MR. JACKSON: Mr. Hildebrand, have you had experience 12 working with the salt problem in the San Joaquin? 13 MR. HILDEBRAND: Yes. 14 MR. JACKSON: Would you recount that experience, sir. 15 MR. HILDEBRAND: Well, perhaps you need to define what 16 you mean "working with," but I can tell you what I know 17 about it. 18 MR. JACKSON: Well, have you been on any commissions, 19 any groups organized by the government to deal with the salt 20 problem? 21 MR. HILDEBRAND: Yes, I have. I was on a -- I don't 22 recall whether the term was commission or something else. 23 But a study was made a long time ago as how to resolve the 24 problems of salt accumulation in the valley. And the 25 conclusion at that time was that the only resolution was to 3886 01 have a valley drain, and there were several options on how 02 to go about that that were considered. 03 Then there was a later restudy of the same subject some 04 years later, which I was also involved in. At that time 05 some God up upon high decided that you couldn't take the 06 salt out of the valley; it had to be a local solution, which 07 is kind of a farce. 08 But within that framework, it was a matter of really of 09 how much salt can you bury down there in the groundwaters 10 and soils and how much can you dump in the river. So we 11 went through that process. 12 Of course, I also live on the left bank of the San 13 Joaquin and divert from it for my farm, so I've observed the 14 problem firsthand. 15 Does that answer your question? 16 MR. JACKSON: Yes, sir, it does. 17 Could you -- let's start with the problem for the 18 farmer. How does the salt -- what causes the salt to 19 accumulate in the soil? 20 MR. HILDEBRAND: Well, as I said yesterday, the 21 Delta-Mendota Canal imports up to a million acre-feet a 22 year of salt -- a million tons of salt, and that is applied 23 on the crops down there. And they, along with the water, 24 the crops consume the water as a necessity of growth, and 25 that concentrates the salt then up to salinities on the 3887 01 order as high as 5,000 parts per million. 02 And then they have to keep that out of their root zone 03 or else the plants can't grow. So they put in tile drains 04 to hold the water table down so they can leach into the 05 water table, keep the salt out of the crop zone. But some 06 of that water table salt then seeps slowly through the 07 Corcoran clay and gets down into the aquifer below. Some of 08 it is sitting on top of the Corcoran clay as high salinity, 09 and the rest is either into the river from the tile drainage 10 or seeps it. Mostly it is pumped in, but there is some that 11 goes in subsurface secretion because the salt, after all, is 12 in solution and it's upheld from the river. So it ends up 13 in the river. 14 MR. JACKSON: What is the Corcoran clay? 15 MR. HILDEBRAND: There is a layer of clay in that 16 region of the valley, down in that service area, which 17 blankets all the way across the valley in most places. It's 18 rather tight clay, so that its permeability is very low, but 19 it is not zero, and there are places where it is thinner 20 than others. So some of the salt gets down through that. 21 So we are continually salinizing the groundwater down 22 there. We're eventually going to pay a price for it. 23 MR. JACKSON: Is there -- other than the area of the 24 Corcoran clay, is this salting process something that 25 happens everywhere in the San Joaquin and Sacramento Valley 3888 01 in terms of agricultural? 02 MR. HILDEBRAND: As I explained yesterday, any place 03 that you have agriculture you are going to concentrate 04 whatever salt is there; that is, plants have to consume 05 water as a necessity of growth. But the osmotic root 06 systems take up the water and leave the salt behind. So, 07 there is no way you can farm if you are not allowed to 08 concentrate the water. 09 The difference between the areas along the streams and 10 this particular service area is that the areas that divert 11 from streams are not introducing a nonindigenous salt load; 12 whereas, the surface area is introducing a salt load that is 13 imported to the valley. 14 MR. JACKSON: Are there specific areas of the valley in 15 which the salt load problems are worse than others? 16 MR. HILDEBRAND: It varies quite a bit, yes. I am not 17 quite sure what you are getting at there, but -- 18 MR. JACKSON: We talked about salt in Mud Slough 19 yesterday, and I believe you said that at times 85 percent 20 of the salt load is coming out of those two -- 21 MR. HILDEBRAND: Salt and Mud Sloughs, yes. 22 MR. JACKSON: Is there -- is there a buildup of the 23 problem in the area of Salt and Mud Sloughs? Is the problem 24 increasing? 25 MR. HILDEBRAND: I am not sure whether it is still 3889 01 increasing. It did over a long period of time after the CVP 02 went into operation. But the system has been gradually 03 approaching an equilibrium where the amount of salt getting 04 in the river is approaching the amount which is imported 05 minus what is stored in the groundwaters below the Corcoran 06 clay. 07 MR. JACKSON: Does that mean, essentially, that the 08 land is no longer storing the salt from the applied water 09 and that it is -- essentially, more of the salt is now being 10 released into the river? 11 MR. HILDEBRAND: Well, I guess there are two aspects of 12 that. One is when you first start irrigating virgin land 13 that has salt in it, as I mentioned yesterday, these are 14 soils derived from mineral soils, mineral shales, so that 15 they have an original content of ocean water in them. 16 By and by, you pretty well leach that out, and then 17 you're passing through the imported salt primarily, and that 18 has to be flushed below the root zone in order for the 19 farming to continue. But, eventually, you arrive at an 20 equilibrium between the amount of that that is retained in 21 the valley below the root zone and the amount that gets in 22 the river and is flushed out. 23 MR. JACKSON: In the San Joaquin Valley, I believe you 24 indicated, that most of the soils come from the west side 25 rather than the east side? 3890 01 MR. HILDEBRAND: The salt that enters the river at 02 salinities above the Vernalis salinity standard and the salt 03 that is nonindigenous comes almost entirely from the west 04 side. As I mentioned yesterday, there is a substantial 05 release of salts throughout the valley by the weathering of 06 soils. But that occurs during periods of high precipitation 07 so that it is flushed out at low concentrations and causes 08 no problem. 09 MR. JACKSON: I believe you indicated that in the South 10 Delta Water Agency over time you and the rest of the farmers 11 in that agency have been dealing with increased salt loads 12 coming down the river? 13 MR. HILDEBRAND: Yes. It started to with -- the 14 problem began when the CVP went into operation. There was a 15 period of buildup. But the amount of salt coming down the 16 river and entering our channels now, in the absence of the 17 barriers, is some hundreds of thousands of tons a year. 18 MR. JACKSON: In the absence of the barriers, with this 19 increased salt load, over time would there be a loss of 20 agricultural land in the South Delta Water Agency? 21 MR. HILDEBRAND: I don't know that it would be a loss 22 of land, but certainly there is a crop loss. There is a 23 threshold of salinity above which for any given crop variety 24 the osmotic root system doesn't work anymore. And, 25 consequently, the plant can't take up the water it needs for 3891 01 growth, and it is not an abrupt cutoff. As you go on up 02 from that threshold level, you have increasing degradation 03 of crop yield. 04 MR. JACKSON: Calling your attention to the testimony 05 earlier of Mr. Ford, you know Mr. Ford? 06 MR. HILDEBRAND: Oh, yes. 07 MR. JACKSON: How long have you known him? 08 MR. HILDEBRAND: As long as he has been on his present 09 job. 10 MR. JACKSON: Has there been any discussion of ways to 11 improve your ability to grow crops in the South Delta Water 12 Agency? Have there been any solutions suggested by the 13 Department of Water Resources other than the agricultural 14 barriers? 15 MR. HILDEBRAND: Not other than the agricultural 16 barriers, no. But the solution is to keep the river salt 17 out of our channels so that we don't have to cope with them, 18 and that is a very satisfactory solution that's been fully 19 demonstrated by the temporary barriers. 20 MR. JACKSON: Calling your attention to this valley 21 drain that you talked about, where would that drain 22 terminate? 23 MR. HILDEBRAND: Well, there are various options. The 24 original plan was to bring it down in an open but unlined 25 canal and put it in the Carquinez Straits. And if you put 3892 01 it in on the ebb tide, it would go right on out to the Bay. 02 Aside from the question of selenium or other toxic ions, 03 that you would be introducing into an area where the 04 salinity in the receiving water was actually higher than the 05 water that was being brought out of the drain. 06 That turned out to be politically a no-no. But other 07 options are to concentrate it in the valley somewhat and 08 then pipe it over and put it in the Japanese current, for 09 example. I am sympathetic with the objection to putting it 10 in the subsurface canyon in the Monterey Bay where it might 11 reside there. But if you move it on out beyond the Bay, it 12 would be swept away and diluted very quickly. 13 MR. JACKSON: Who would build the valley drain? 14 MR. HILDEBRAND: The problem is that we can't get 15 anyone to build it. 16 MR. JACKSON: Has it been subjected to the Central 17 Valley Project that it be a solution to the problems caused 18 by their -- within their service area by the applied water? 19 MR. HILDEBRAND: As was discussed yesterday, the 20 original authorization for the CVP included the 21 authorization of a valley drain and the requirement that it 22 be built before water was delivered, but it didn't happen. 23 MR. JACKSON: So, it is within the authorization of the 24 Bureau of Reclamation or the Central Valley Project to do 25 it? 3893 01 MR. HILDEBRAND: Yes. 02 MR. JACKSON: And they have not? 03 MR. HILDEBRAND: They have not. 04 Mr. JACKSON: They have suggested other solutions 05 besides the valley drain? 06 MR. HILDEBRAND: Not that I am aware of. 07 MR. JACKSON: Let me get this straight. The problem is 08 caused within their service area by their project? 09 MR. HILDEBRAND: Yes. 10 MR. JACKSON: The only solution you know of is a drain 11 that is authorized for them to take care of, for them to 12 build? 13 MR. HILDEBRAND: The only long-term solution, yes. 14 MR. JACKSON: Now, do you agree with Mr. Ford's 15 indication that, or Mr. Ford's modeling, that the interior 16 Delta salinity standards cannot be met unless the Vernalis 17 standard is met? 18 MR. HILDEBRAND: Yes. 19 MR. JACKSON: In your experience in the last 30 or 40 20 years working on this problem, has anybody suggested that 21 there is another way other than building the valley drain 22 for meeting the Vernalis salinity standard to deal with 23 accumulated salts? 24 MR. HILDEBRAND: Not that I am aware of. 25 MR. JACKSON: Has there been investigations done, in 3894 01 your experience, in dealing with the salts in the San 02 Joaquin to identify whether or not there are specific acres 03 that are contributing more than their share or more than the 04 average acre in the San Joaquin? 05 MR. SEXTON: Objection. Vague. Ambiguous. 06 C.O. CAFFREY: Want to try the question again, Mr. 07 Jackson. 08 MR. JACKSON: In the studies that have been done by the 09 government have there been specific acres identified that 10 contribute more than the average acre's contribution to the 11 salt problem? 12 MR. HILDEBRAND: Well, there are acres that clearly 13 contribute more of the selenium problem, but I am not aware 14 of any study that would indicate a difference in respect to 15 the salinity problem, and it is reasonable to assume that 16 there won't be a big difference in any area that's been 17 irrigated long enough to pretty well leach the original only 18 salt load out of the root zone. 19 As we explained before, you've got -- if you are all 20 using water from DMC that has a given amount of salt load in 21 it per acre-foot and they are growing crops which evaporate 22 a certain amount of that, they are going to have a certain 23 amount of salt residue. It wouldn't matter whether it was 24 one location or another. 25 MR. JACKSON: In regard to selenium, you indicated 3895 01 there were acres identified that contribute -- 02 MR. HILDEBRAND: There are hot spots regarding 03 selenium, yes. I believe the worst part is Panoche fan. 04 MR. JACKSON: Have those hot spots been investigated by 05 either the State or Federal government? 06 MR. HILDEBRAND: Yes. 07 MR. JACKSON: And has that investigation revealed the 08 location of the hot spots? 09 MR. HILDEBRAND: Pretty well. 10 MR. JACKSON: Has anything been done about it? 11 MR. HILDEBRAND: Well, I wouldn't want to say nothing's 12 been done about it, but there has been no real solution. 13 There have been efforts made to develop ways of removing the 14 selenium without attacking the whole salinity problem. They 15 have some promise. They haven't yet been successful, at 16 least on a commercial scale. 17 They have made efforts to bury it better than they 18 otherwise would. There have been discussions of the hottest 19 areas out of production, fallowing that land. But there is 20 no real resolution to the problem yet. 21 MR. JACKSON: Has the Department of the Interior been 22 involved in those investigations? 23 MR. HILDEBRAND: I believe in some degree, yes. But I 24 can't say that I have any impression that the Department of 25 the Interior has been taking any lead in solving the 3896 01 problem. 02 MR. JACKSON: Has the Department of the Interior 03 suggested any alternatives to the State Board -- excuse me, 04 let me withdraw. 05 Have you reviewed the State Board's EIR? 06 MR. HILDEBRAND: The alternatives? 07 MR. JACKSON: Yes. 08 MR. HILDEBRAND: In this process, yes. 09 MR. JACKSON: Do any of those alternatives solve the 10 salt problem, in your opinion? 11 MR. HILDEBRAND: No. 12 MR. JACKSON: Why not? 13 MR. HILDEBRAND: Well, there is no provision for 14 removing the salt from the system in a nondamaging manner. 15 We, as I said yesterday, plan to introduce an alternative in 16 Phase II-A that we think would go a long way toward 17 accomplishing that, but not totally. 18 MR. JACKSON: In calling your attention, again, to the 19 situation in the South Delta Water Agency, is the water 20 quality within the South Delta Water Agency -- would the 21 water quality in the South Delta Water Agency be improved by 22 any of the present State Board alternatives, in your opinion? 23 MR. HILDEBRAND: I am trying to remember just what is 24 in each alternative. I think that in some of them there are 25 some proposals that the barriers be installed, and that 3897 01 would certainly do some. 02 MR. JACKSON: Now, are the barriers a long-term fix or 03 a short-term fix, in your opinion? 04 MR. HILDEBRAND: They are a long-term fix for those 05 channels which would be provided with the directional flow 06 by the introduction of the barriers and the exclusion of San 07 Joaquin River salts from those channels. The main channel 08 of the San Joaquin would still have to carry the salt, so 09 you have to have enough flow and enough dilution to maintain 10 the quality in that channel, and the barriers don't do that. 11 MR. JACKSON: Calling your attention to the head of 12 Old River barrier, if the head of Old River barrier were the 13 only barrier built, would that have an affect on the water 14 quality of the South Delta Water Agency? 15 MR. HILDEBRAND: Certainly would have an affect, yes. 16 It would keep the salts in the main stem of the San Joaquin 17 River, but it would dewater the channels downstream of the 18 head of Old River barrier if we don't have the other 19 barriers. So, what salinity we might have is kind of 20 academic if there is no water in the channel. 21 MR. JACKSON: Calling your attention to the location of 22 the head of Old River barrier, in your experience over the 23 last 30 years in that general area has it ever been 24 suggested that that should not be a barrier, but should be a 25 screen? 3898 01 MR. HILDEBRAND: I don't know whether it's been 02 suggested, but I don't think it's feasible to build a screen 03 at that location that would handle the flows involved. It 04 takes a lot of room to put in a screen that is an effective 05 screen and doesn't foul up and which can handle the higher 06 flows. There is an enormous fluctuation in the amount of 07 flow it has to handle. 08 MR. JACKSON: Does the operation of the Federal and 09 State pumps affect water quality and quantity for the South 10 Delta Water Agency? 11 MR. HILDEBRAND: Oh, yes. 12 MR. JACKSON: How does it do that, sir? 13 MR. HILDEBRAND: Well, as we explained before, in order 14 to get Sacramento River water to flow across the Delta to 15 the pumps, the pumps have to draw down the water levels over 16 the whole South Delta area, such that it is downhill coming 17 across on the Delta. When they do that, they reduce the 18 water levels at times to unacceptable depths. They cause a 19 reverse flow in the main stem of the river from Stockton up 20 to Old River, and the entire flow of the San Joaquin River 21 then is pulled over to the federal pumps, a little of it 22 gets to the State pumps as we export it back down the 23 valley. 24 In the process of doing all that, we end up, as Mike 25 Ford showed on one of his exhibits, with areas in Middle 3899 01 River and Old River that are null zones, where it gets 02 stagnate water that moves back and forth with the tide and 03 has water flowing in from both ends so that you keep 04 accumulating the inflow of salts in those null zones. We 05 have had salinities of more than 1500 parts per million. 06 You can't control it without ending that flow. 07 MR. JACKSON: Have you also noticed algae blooms caused 08 by these null zones? 09 MR. HILDEBRAND: Well, we've had some algae blooms. I 10 suppose they would be aggravated by the stagnation. For one 11 thing, the stagnate zones get hotter and high temperatures 12 foster the growth of algae. Then it depends on what 13 nutrients are coming into the system. There can be some 14 nutrients coming in from agricultural drainage, but there is 15 nutrient in the inflow at Vernalis. There is nutrients in 16 the Tracy outflow. There are nutrients in the Stockton 17 outflow which are drawn upstream when you don't have the 18 barriers. So, there is bound to be somewhat of a problem. 19 MR. JACKSON: Calling your attention to the question 20 that was -- to a question that I heard asked of Mr. Ford, it 21 was a question involving peat soils. Are there peat soils 22 in the South Delta Water Agency? 23 MR. HILDEBRAND: Almost none. In that regard I think 24 there was a little confusion yesterday. Because it is true 25 that when you irrigate peat lands, the return flow from that 3900 01 actually has increased then in the dissolved carbon 02 compound. But work done by DWR several years ago indicated 03 in the case of the South Delta where you have mineral soils, 04 you actually deplete the dissolved carbon compound somewhat 05 in the process of irrigation, so that there was less 06 dissolved carbon in the discharge from our lands then had 07 come down the river from upstream. 08 MR. JACKSON: Now, are there peat soils in the Central 09 Delta, to your knowledge? 10 MR. HILDEBRAND: Almost all peat. 11 MR. JACKSON: So, by taking more of the water from the 12 Central Delta than from the South Delta would it be logical 13 to assume that we would increase the amount of peat in the 14 water at the pumps? 15 MR. HILDEBRAND: I would have to think about that a 16 little bit. That is a simple answer. 17 MR. JACKSON: Thank you. 18 I have no further questions. 19 C.O. CAFFREY: Thank you, Mr. Jackson. 20 Yes, Mr. Turner. 21 MR. TURNER: In light of Mr. Hildebrand's discussion 22 about the Central Valley Project authorization to construct 23 the San Joaquin Valley master drain, I think I would like if 24 you could add my name to the list of attorneys that would 25 like to cross-examine on that particular issue. 3901 01 C.O. CAFFREY: All right, Mr. Turner. We haven't seen 02 you in a while, anyway, so we will make a special exception 03 for you. 04 MR. TURNER: Thank you. 05 C.O. CAFFREY: All right. 06 Let's go to Mr. Maddow. 07 Will you remind me when you have to leave, Mr. 08 Hildebrand? 09 MR. HILDEBRAND: I need to leave in ten minutes. 10 MR. MADDOW: My cross-examination will take less than 11 that. 12 C.O. CAFFREY: That is very convenient. Thank you, Mr. 13 Maddow. 14 ---oOo--- 15 CROSS-EXAMINATION OF SOUTH DELTA WATER AGENCY 16 BY CONTRA COSTA WATER DISTRICT 17 BY MR. MADDOW 18 MR. MADDOW: Thank you, Mr. Chairman and Members of the 19 Board. I am Bob Maddow. I am appearing for the Contra 20 Costa Water District. 21 Morning, Mr. Hildebrand. 22 MR. HILDEBRAND: Morning. 23 MR. MADDOW: Mr. Hildebrand, I just really wanted to 24 inquire about one aspect of your testimony yesterday. I was 25 following your written testimony as you were summarizing it 3902 01 in your oral testimony. Particularly, I am interested in 02 what you were saying about the Stockton wastewater treatment 03 plant. I am not certain what it is that South Delta Water 04 Agency is asserting about Stockton's obligations concerning 05 the discharges from its wastewater treatment plant. 06 In that regard I would like to ask you whether it is 07 correct that you are now asserting that Stockton should not 08 have to comply with discharge requirements contained in the 09 Basin Plan to the extent that those requirements might 10 relate to dissolved oxygen; is that correct? 11 MR. HILDEBRAND: No. What I said was to the extent 12 that the dissolved oxygen problem results from a reverse 13 flow which is caused by the export pumps, they should not be 14 responsible for that. They don't cause reverse flow. 15 I added that my understanding that there are other 16 considerations that affect dissolved oxygen. So projects 17 would only be responsible to the extent that there is a 18 reverse flow that causes the problem, and I don't think that 19 the Stockton discharge is responsible for the reverse 20 flows. To the extent the reverse flow is a problem, I don't 21 think it is their responsibility. 22 MR. MADDOW: Are you suggesting that there should be an 23 excuse, however, from any portion of the discharge 24 requirements for the Stockton plant or other municipal 25 wastewater treatment plants that are discharging into the 3903 01 Delta? 02 MR. HILDEBRAND: I need you to repeat that. 03 MR. MADDOW: Are you suggesting that the Stockton plant 04 or other municipal wastewater plants should be excused for 05 meeting any portion of the discharge requirements of the 06 Basin Plan? 07 MR. SIMMONS: Same objection to the term discharge 08 requirements, what they might be talking about. It might be 09 in regards to be BOD or some other constituent. 10 C.O. CAFFREY: Mr. Stubchaer. 11 C.O. STUBCHAER: On the objection, I am not sure if you 12 are talking about the discharge limits or the receiving 13 water limits. 14 C.O. CAFFREY: Can you be a little more specific. 15 MR. HILDEBRAND: I was having trouble with the 16 question, too. 17 MR. MADDOW: I was having trouble following Mr. 18 Hildebrand's testimony in that regard. I was trying to 19 understand what it was that he was suggesting that Stockton 20 should be relieved from with regard to any of the regulatory 21 requirements concerning discharges from the Stockton 22 municipal wastewater treatment plant because they did not 23 cause the reverse flows. 24 MR. HILDEBRAND: Seems to me that the urban discharger 25 also adds salt load. Let's start with that. And this is a 3904 01 problem for us as we get more and more urbanization. And 02 they should be fully responsible for mitigating that in the 03 receiving waters. 04 But if the problem is exacerbated by the action of some 05 other party, such as in this case the reverse flow, then 06 their obligation should be only what it would be in the 07 absence of that reverse flow. 08 MR. MADDOW: Thank you, Mr. Hildebrand. 09 I have no further questions. 10 C.O. CAFFREY: Thank you, Mr. Maddow. 11 Mr. Campbell, how much time? 12 MR. CAMPBELL: Depending on the answers, I may be able 13 to finish within Mr. Hildebrand's time frame. 14 C.O. CAFFREY: Let's get started, but I am going to 15 excuse Mr. Hildebrand at exactly ten minutes to ten. Is 16 that right, sir? 17 MR. HILDEBRAND: That is fine. 18 C.O. CAFFREY: Then we will see you this afternoon; is 19 that correct? 20 MR. HILDEBRAND: I will be back right after lunch. 21 C.O. CAFFREY: Ms. Forster has some questions she 22 wants to ask you. 23 MR. HILDEBRAND: I will be happy to respond. 24 C.O. CAFFREY: Good morning, Mr. Campbell. 25 ---oOo--- 3905 01 CROSS-EXAMINATION OF SOUTH DELTA WATER AGENCY 02 BY DEPARTMENT OF FISH AND GAME 03 BY MR. CAMPBELL 04 MR. CAMPBELL: Good morning, Mr. Chairman. Matthew 05 Campbell, Deputy Attorney General on behalf of the 06 Department of Fish and Game. 07 Mr. Hildebrand, you testified that the principal cause 08 for high salinity in the San Joaquin River is the impact of 09 salt imported from the Delta by the Delta-Mendota Canal and 10 subsequent agricultural drainage from the CVP's west side 11 service area into the San Joaquin River; is that correct? 12 MR. HILDEBRAND: Basically, yes. 13 MR. CAMPBELL: Would an alternative to achieving 14 reductions in the salt load entering the San Joaquin River 15 include reducing the salinity of water exported by the CVP 16 from the Delta? 17 MR. HILDEBRAND: Yes. That is one of the reasons we 18 advocate the barriers. Because if you operate the three 19 tidal barriers, you reduce the salinity in the DMC and 20 reduce the salt load imported, and thereby reduce the 21 salinity in the San Joaquin River. 22 MR. CAMPBELL: Could an alternative for accomplishing 23 such salt load reductions include exports from another 24 location in the Delta with low channel water salinities? 25 MR. HILDEBRAND: Can you be a little more specific on 3906 01 what you are proposing there? 02 MR. CAMPBELL: I am not proposing anything, Mr. 03 Hildebrand. I am just asking a question. 04 MR. HILDEBRAND: If you have a source of distilled 05 water we can use to fill the DMC, yeah, that would do it. 06 MR. CAMPBELL: I guess I will just repeat the question 07 and try to ask it in another way. 08 Would another alternative for accomplishing salt load 09 -- could another alternative for accomplishing salt load 10 reductions include exports from another location in the 11 Delta with lower channel water salinities? 12 MR. HILDEBRAND: Well, you're looking at one piece of 13 the problem. My question is: Where could you get that 14 water that wouldn't cause other problems? Unless you can 15 offer me a specific proposal, I can't comment on that. 16 MR. CAMPBELL: You've testified that State and Federal 17 export pumping decreases water levels in the Delta; is that 18 correct? 19 MR. HILDEBRAND: That's right. 20 MR. CAMPBELL: Is this effect principally restricted to 21 the South Delta? 22 MR. HILDEBRAND: Yes. Because there is some drawn 23 down, of course, to bringing it across. But in the deep 24 channels it doesn't take much differential to get the flow. 25 Whereas, you get the shallow channels, and it takes a much 3907 01 larger differential. 02 MR. CAMPBELL: In that context, I think I am going to 03 go back to the question you don't like. Could an 04 alternative that includes water exports from another 05 location in the Delta address that impact? 06 MR. HILDEBRAND: I just don't want to answer a 07 hypothetical question. If you will give some specificity to 08 it, I will give it a try. 09 MR. CAMPBELL: Mr. Hildebrand, you testified that the 10 three tidal barriers would significantly reduce salt load 11 imported by the Delta-Mendota Channel; is that correct? 12 MR. HILDEBRAND: That's correct. 13 MR. CAMPBELL: Does the ISDP include a project element 14 construction of the three tidal barriers in the South Delta? 15 MR. HILDEBRAND: Yes. 16 MR. CAMPBELL: Is reducing salt load imported by the 17 Delta-Mendota Canal a project purpose of the ISDP? 18 MR. HILDEBRAND: It is not listed as a purpose, but it 19 certainly is a benefit. 20 MR. CAMPBELL: Does barrier operation result in more 21 lower salinity Sacramento River water entering the Delta, to 22 enter the Delta? 23 MR. HILDEBRAND: Repeat that again. 24 MR. CAMPBELL: Does barrier operation cause an increase 25 in lower salinity Sacramento River water to enter the South 3908 01 Delta? 02 MR. HILDEBRAND: No. The barriers have no affect on 03 the amount of Sacramento River water you are going to pull 04 across the Delta, water or fish. 05 MR. CAMPBELL: I believe you testified that providing 06 additional spring and fall fisheries flows in the San 07 Joaquin River harms, in your terminology, water quality and 08 channel depletion; is that correct? 09 MR. HILDEBRAND: Would you repeat that again. 10 MR. CAMPBELL: I am looking at your testimony at Page 11 2. I believe you have testified there in the second or 12 third full paragraph. 13 Do you see what I am looking at? 14 MR. HILDEBRAND: No. Which paragraph are you talking 15 about? 16 MR. CAMPBELL: The second and third full paragraphs. 17 MR. HILDEBRAND: Second and third full paragraphs. 18 What is the question? 19 MR. CAMPBELL: Based on my reading of those two 20 paragraphs, it appears in your testimony that providing 21 additional spring and fall fishery flows in the San Joaquin 22 River harms water quality and channel depletion needs? 23 MR. HILDEBRAND: If it is achieved by shifting summer 24 flow to spring and fall flow, yes. 25 MR. CAMPBELL: Have you -- to what extent, if any, have 3909 01 you quantified that alleged harm? 02 MR. HILDEBRAND: We've made studies of that. Our 03 consultant, Dr. Orlob, provided figures on that. Thing is 04 that if the -- if you reduce the summer flow, you do two 05 things. One is that you increase the amount of dilution 06 required out of the Stanislaus and New Melones to abide by 07 the salinity standard, which increases to the extent to 08 which they don't abide by it, and you cause -- to people 09 upstream you cause substantial increase in salinity. Get 10 some very high salinities further upstream in the main stem. 11 May gets as high as 1,500 parts. Then there are times in 12 the summer when the flow becomes insufficient to meet the 13 channel depletion requirements in the South Delta, which 14 should have prior rights. That is the riparian diversions 15 and public trust needs in the South Delta. 16 MR. CAMPBELL: I just have one or two more questions, 17 sir. Very quickly. 18 C.O. CAFFREY: That clock is a couple of minutes fast. 19 It's up to Mr. Hildebrand. 20 Do you have time for a -- 21 MR. HILDEBRAND: If it is two minutes, we will go 22 ahead. 23 MR. CAMPBELL: Do you -- were you here during Phase II 24 for the testimony of Pat Brandes, biologist for the U.S. 25 Fish and Wildlife Service? 3910 01 MR. HILDEBRAND: I believe so. 02 MR. CAMPBELL: Do you recall hearing that testimony? 03 MR. HILDEBRAND: Whether I can segregate hers from 04 other biologists, right offhand I am not quite sure. But if 05 you can refer me some specific testimony. 06 MR. CAMPBELL: Did you review her written testimony? 07 MR. HILDEBRAND: I read it at the time, yes. But, 08 again, I would have to have you refer me to something 09 specific. 10 MR. CAMPBELL: Would it be an accurate characterization 11 of her testimony to state that in Ms. Brandes' expert 12 opinion and based on the studies she had conducted there is 13 a statistically significant relationship between flow and 14 salmon smolt survival? 15 MR. HERRICK: I would just ask that the question be 16 rephrased to make sure we are asking Mr. Hildebrand's 17 recollection. The testimony is what it is. 18 MR. CAMPBELL: The reason I am asking the question is 19 that Mr. Hildebrand states in his written testimony that the 20 biologists in Phase II testified that there is little, if 21 any -- that little, if any, correlation exists between flows 22 and salmon smolt survival. That's on Page 2. And I just 23 want to see how that statement stands up against the actual 24 testimony of Ms. Brandes. 25 MR. HILDEBRAND: If I didn't make it clear, I was 3911 01 talking about the relationship between the flow and the 02 export rates. It is my recollection of the collective 03 testimony of the biologist that there was some difference of 04 opinion, but by in large, I think it included Ms. Brandes, 05 that there was a relationship as it related to the flow down 06 to Stockton, but not the flow, the amount of export. 07 MR. CAMPBELL: Your recollection of Ms. Brandes' 08 testimony is that there is -- in her opinion, there is -- a 09 correlation exists between flow and salmon smolt survival, 10 taking export out of the equation? 11 MR. HILDEBRAND: Only in terms of the amount of flow 12 that reaches Stockton. 13 MR. CAMPBELL: Thank you. 14 I have no further questions. 15 C.O. CAFFREY: Thank you, Mr. Campbell. 16 Mr. Hildebrand, you are excused. 17 MR. HILDEBRAND: I apologize for taking off. 18 C.O. CAFFREY: No apology necessary. You informed us 19 early on. 20 MR. HERRICK: We appreciate the Board's consideration. 21 C.O. CAFFREY: No problem, Mr. Herrick. 22 Mr. Hildebrand will be back after the lunch break; is 23 that correct? 24 MR. HILDEBRAND: Yes. 25 C.O. CAFFREY: What we will do now is we will move to 3912 01 the beginning of the Contra Costa Water District case in 02 chief. Then, after lunch we'll come back and complete Mr. 03 Herrick's case in chief. 04 We also thank Mr. Maddow for his indulgence to have his 05 case broken up in effect. 06 Good morning, sir, welcome. 07 MR. MADDOW: Morning, Mr. Chairman, Members of the 08 Board. 09 It will just take a moment to get the switch made. 10 C.O. CAFFREY: We will go off the record for a minute. 11 (Break taken.) 12 C.O. CAFFREY: We are back on the record. This is the 13 case in chief for Contra Costa Water District. 14 Good morning, Mr. Maddow. 15 ---oOo--- 16 DIRECT EXAMINATION OF CONTRA COSTA WATER DISTRICT 17 BY MR. MADDOW 18 MR. MADDOW: Good morning, Chairman Caffrey and Members 19 of the Board, and thank you for this opportunity. 20 C.O. CAFFREY: Let's quiet down, please, so that we can 21 hear Mr. Maddow. 22 Thank you. 23 MR. MADDOW: I have a brief opening statement. Then we 24 have two witnesses who will be presenting direct testimony 25 this morning. 3913 01 I was thinking about how to begin this presentation 02 this morning. Contra Costa Water District has been before 03 this Board many times to deal with issues related to 04 salinity in the Delta, southern Delta salinity in 05 particular. Contra Costa, of course, is a diverter from the 06 Delta, gets its entire water supply essentially from the 07 Delta and serves water to its customers located and/or 08 immediately adjacent to the Delta, and has been doing so for 09 a long time. 10 There is testimony in our written materials, and in 11 testimony today, describing Contra Costa's relationship to 12 the Delta. Of course, Contra Costa, because of the location 13 of its intakes, has particular concern about salinity 14 issues. The first portion of Contra Costa's direct 15 testimony today will describe the salinity impacts of some 16 of the measures discussed in the State Board's Draft 17 Environmental Impact Report insofar as those impacts will be 18 felt at Contra Costa intakes. 19 Another portion of Contra Costa's direct testimony 20 today will describe the significance of those salinity 21 impacts on Contra Costa's municipal water supply operations, 22 particularly with regard to the Contra Costa's Los Vaqueros 23 Project. During the cross-examination of Mr. Hildebrand by 24 Mr. Jackson a few minutes ago Mr. Hildebrand was talking 25 about the fact that, in effect, the South Delta Water Agency 3914 01 or he at least has been awaiting someone to come along to 02 deal with the drain question. 03 Well, Contra Costa was facing similar questions with 04 regard to efforts needed to improve the quality and 05 reliability of its water supply from the Delta. Part of our 06 testimony today will describe the fact that the ratepayers 07 of Contra Costa themselves finally had to bite the very 08 expensive bullet and deal with that issue. And we will be 09 talking about the impacts of southern Delta salinity and 10 some of the measures before you, insofar as that very 11 expensive Los Vaqueros Project is concerned. 12 The District's written testimony also describes the 13 District's treatment plants, which are modern, 14 technologically advanced plants in which substantial 15 improvements are being made to deal with the challenges of 16 treating a Delta water supply. Of course, you can't treat 17 for salinity. So, the salinity issues before you now are of 18 considerable concern to Contra Costa, and it looks forward 19 to this opportunity to participate in Phase V. 20 Contra Costa is also active in a number of other forums 21 where matters such as Delta salinity issues and the 22 achievement of salinity objectives and tools available for 23 achieving in compliance with those directives are being 24 discussed in those forums and also in this forum. 25 In this phase Contra Costa believes it is important 3915 01 that certain principles be applied by any entities or 02 regulatory agencies which are considering measures to deal 03 with particularly Delta salinity. Among those principles 04 are things that we have been attempting to say in some of 05 our presentations earlier in these proceedings. If any 06 measures are to be taken to achieve Water Quality Control 07 Plan objectives, those measures need to be fully disclosed 08 and analyzed on a complete and consistent basis. The 09 hydrologic simulations that are used, for example, to 10 analyze salinity impacts need to be consistent, and we think 11 that they need to cover the entire period of the hydrologic 12 record that is being used. So that when we are looking at 13 the salinity issues, we are looking at them on the same 14 basis from a hydrologic analysis and stimulation standpoint 15 as we are with other matters in these proceedings. 16 Contra Costa also believes it is important that 17 measures that are taken to deal with salinity issues in the 18 Delta not redirect adverse impacts to others. And, finally, 19 Contra Costa thinks it is critical that to the extent that 20 adverse impacts are redirected, that there are measures 21 which are taken which do cause some transference of adverse 22 impacts, that there need to be mitigation measures. And our 23 testimony today will deal with each of those principles. 24 We will be presenting two witnesses for direct 25 testimony. Their total testimony will take less than 40 3916 01 minutes. Our first witness will be Dr. K.T. Shum who will 02 be dealing with the salinity issues. Our second witness 03 will be Mr. Bill Hasencamp who will be dealing with the 04 impacts of salinity on the Contra Costa Water District. Dr. 05 Shum's initial testimony will be about 15 minutes. Mr. 06 Hasencamp, about ten. And then Dr. Shum will return to make 07 about a five minute presentation in regard to dissolved 08 oxygen. Our thought, then, is that we offer each of these 09 two gentlemen for panel cross-examination. 10 I should tell the Board that two other members of the 11 Contra Costa's Water Resources team, Dr. Richard Denton, who 12 is the manager for Water Resources for Contra Costa, and Dr. 13 David Briggs are present. Statements of qualifications have 14 been provided for each of them. And because of the breadth 15 of the materials covered in our written testimony, all of 16 which will not be discussed in the oral summaries, we 17 thought it proper to have those gentlemen here and available 18 to assist in response to cross-examination, should that 19 prove necessary. 20 C.O. CAFFREY: Thank you, sir. 21 MR. MADDOW: When that happens, Dr. Briggs has not yet 22 taken the oath, and we will deal with that when we get to 23 the beginning of cross-examination, perhaps. The other 24 gentlemen have all taken the oath. 25 C.O. CAFFREY: Thank you. 3917 01 MR. MADDOW: If we can, then, begin with Dr. K.T. 02 Shum. 03 Dr. Shum, can you spell your name and identify your 04 employer and your position. 05 DR. SHUM: My name is K.T. Shum. Last name is spelled 06 S-h-u-m. I am with the Water Resources group at the Contra 07 Costa Water District. Currently I am senior water resources 08 specialist. 09 MR. MADDOW: Dr. Shum, is Contra Costa Water District 10 Exhibit 1-E a true copy of your resume, of your 11 qualifications? 12 DR. SHUM: Yes, it is. 13 MR. MADDOW: Can you very briefly summarize your 14 qualifications for the Board, please. 15 DR. SHUM: I got my Doctoral degree in civil 16 engineering from the Massachusetts Institute of Technology. 17 My specialization is in hydrodynamics of water mechanics. 18 Before coming to the Contra Costa Water District, I was a 19 research scientist and also an engineering consultant. 20 MR. MADDOW: Dr. Shum, can I advise you to please speak 21 right into the microphone so the people way in the back of 22 the room will also be able to hear you. 23 Dr. Shum, did you prepare Contra Costa Water District 24 Exhibit 2? 25 DR. SHUM: Yes, I did. 3918 01 I'd like to point out that Dr. Richard Denton has also 02 substantially input into the testimony and, yes, also 03 reviewed the original part of the testimony. 04 MR. MADDOW: In fact, CCWD Exhibit 2 is your testimony 05 and the exhibit is a true copy of your written testimony; is 06 that correct? 07 DR. SHUM: Yes, it is. 08 MR. MADDOW: Could you please summarize your testimony, 09 Dr. Shum. 10 DR. SHUM: Contra Costa Water District Exhibit 2 gives 11 a detailed discussion on the direct impacts of the South 12 Bay Delta barriers outside of the South Delta area, and in 13 particular to the Contra Costa Water District intakes. It 14 also discusses the factors that would determine the 15 magnitude of these impacts, gives some quantitative of 16 estimates of the salinity increases as a result and briefly 17 discusses some of the alternative means to achieve the South 18 Delta salinity objectives and also the mitigation measures 19 that would be -- that should be considered in case the South 20 Delta barriers are adopted as the part of the Water Quality 21 Control Plan measures. 22 To start with, I would like to put on DWR Exhibit 37, 23 Figure 8-B. That is the graph that we saw yesterday. I 24 would like to point out the location of the Contra Costa 25 Water District intakes. 3919 01 First of all, there is the Los Vaqueros intake, which 02 is recently completed and has begun diversion. 03 The intake we have been using for about 50 years now is 04 the Rock Slough intake, which goes into the Contra Costa 05 Canal. The physical process that leads to the water quality 06 impacts of the South Delta barriers are the same as those 07 that lead to the degradation at Turner Cut that we looked at 08 yesterday. 09 Basically, under existing conditions it is about clean 10 inflow. A large part, it would go down to head of Old River 11 barrier and get to the project pumps through the three 12 channels: the Middle River, the Broad Line Canal and the Old 13 River. Under existing conditions most of the summer inflow 14 would be exported directly at either one of the two project 15 export locations and very little of it would go up the Old 16 River and pass by the Los Vaqueros intake or the Rock 17 Slough, which leads into Contra Costa Canal intake. 18 Under existing conditions, a very small portion on the 19 average sense of the San Joaquin flow would pass, would go 20 down the San Joaquin River North Fork, depends on the 21 measure of the export pumping, go down to Caldecott and Old 22 River and leave eventually to the export locations. 23 Now, when the proposed agricultural barriers are in 24 place all or almost all of the San Joaquin flow would go 25 down the San Joaquin River. And because of the export 3920 01 pumping, would go down, part of it, go down the Old River. 02 And because the San Joaquin water has generally lower 03 quality, this would lead to a salinity increase at the Los 04 Vaqueros intake and to a lesser extent at the Rock Slough 05 intake. Because of this, there are a number of factors that 06 would critically affect the magnitude of this impact which 07 needs to be considered in detail. 08 First of all, because the impact is a direct 09 consequence of movement of San Joaquin flow, how much the 10 barriers would let the water flow from east to west would be 11 a critical factor in determining this impact. 12 The second is the relationship between the San Joaquin 13 flow and the project exports. Under existing conditions, if 14 the San Joaquin inflow is much smaller than the export 15 pumping, which is generally the case in the summer and the 16 fall, most of the San Joaquin flow would go into the export 17 water. So, if you compare the case of without barriers and 18 with barriers, the impact of the barriers under this 19 situation would be fairly high. 20 On the contrary, if the export is small compared with 21 the San Joaquin flow, the impact of the barriers would be 22 very small, and in some instances when export is actually 23 smaller than the San Joaquin flow the net effects of the 24 barriers would be actually to improve water quality at our 25 intakes. But this is a very rare occurrence. 3921 01 So what does all of this mean? When we want to get an 02 accurate estimate of the barrier impacts, because of the 03 factors I've just described, we need to simulate the barrier 04 operations and design accurately to reflect the amount of 05 water that is allowed past the barriers from the east to the 06 west. And more importantly, if the State Board decides to 07 adopt these barriers, the actual operations and construction 08 of these barriers have to strictly adhere to what is 09 simulated in the EIR for the projects. Otherwise, impacts 10 that have not been reviewed would occur as a result. 11 The other factors which are the relationship between 12 the San Joaquin flow and the project exports point to the 13 fact that any short-term simulations cannot be taken as 14 representative of the impacts of the barriers. And the 15 Contra Costa Water District's position is that we need to 16 have a comprehensive simulation of the longest available 17 record of hydrology, so that all the impacts can be 18 reflected truly. 19 Third point is the San Joaquin inflow salinity, which, 20 once again, is a major factor in determining the magnitude 21 of the impact and has to be simulated realistically. 22 One fourth point, which may or may not be minor, is on 23 the simulation for short durations. Because the Delta is 24 governed mainly by tidal oscillations. The effects of the 25 barriers would take time to develop, because it takes time 3922 01 for the San Joaquin flow to get to the various locations. 02 So any short-term simulations, like a month or so, may not 03 accurately reflect the true magnitude of the impacts of the 04 barriers over long-term operations. 05 The core of the CCWD Exhibit 2 gives a quantitative 06 estimate of the impacts of these barriers, and it is 07 obtained in two parts. First of all, it estimates, or it 08 shows, some historical records for the Sacramento River 09 water salinity inflow and that of San Joaquin flow. And 10 because under the operation of the barriers, the fraction of 11 water found at Los Vaqueros intake and the Rock Slough 12 intake, that originates from the Sacramento River and from 13 the San Joaquin River, changes. The difference in these two 14 sources of water under barriers' operations and without 15 barrier operations multiply by the differences in salinity 16 would give an estimate on the kind of -- on the magnitude of 17 the salinity increase you will see at the intakes. 18 First of all, I would like to put up -- this is Contra 19 Costa Water District Exhibit 2, Figure 4. I believe it is 20 on Page 19, exhibit. It gives historical measurements of 21 the salinity both of the San Joaquin River, which is the 22 dark line, and that of the Sacramento inflow at, I believe, 23 Queens Landing for the water years or calendar years from 24 1990 to part of 1998. 25 Here I am showing only the salinity for the four 3923 01 months, June to September or the end of the September, when 02 all three South Delta barriers are in operation. It is 03 apparent that the salinity of the Sacramento inflow is 04 fairly constant, an average around from 7 to 10 milligrams 05 per liter chloride. On the other hand, the San Joaquin flow 06 has got a much higher salinity for the dry years 1990 to 07 1993 or 1992, the salinity is between 85 milligrams per 08 liter to over 125, an average around 110. That is the same 09 case as in water year 1994. In the wet years the difference 10 is smaller and, in general, ranges from 125 to over 100. 11 So, if more of the water at the Contra Costa Water 12 District's intakes come from the San Joaquin River as a 13 result of the barrier operations, it would lead to a 14 salinity increase proportional to the difference between the 15 two salinity inflows. 16 This graph also points out that even though that with 17 the barrier operations the -- eventually the San Joaquin 18 flows salinity would decrease as a result of the better 19 source water for the Central Valley contractors, until the 20 day when the San Joaquin inflow gets to a salinity 21 comparable to the Sacramento inflow, this impact will be 22 there. 23 Now this is one-half of the simulation to estimate the 24 salinity impacts. The other half is a numerical simulation 25 on the actual amount of water that reaches the Contra Costa 3924 01 intakes from the two rivers. And that is done using the 02 Fischer Delta Model as a numerical simulation, using a 03 fairly representative hydrology in the summer. And in the 04 case I choose it is from the historical hydrology of August 05 of 1988, and for expedience I used 25 days of the historical 06 hydrology and repeated that and simulated that for a period 07 of four months. And from that, I average the impacts in the 08 last three months of the various operations. 09 And the results are shown in Tables 2 and 3 in Exhibit 10 Number 2. This Table 2 shows the amount of water from San 11 Joaquin and from Sacramento that is found at the various 12 Delta intakes. This is from Page 7 of the exhibit. 13 Under -- without the barrier operations' situation, the 14 Los Vaqueros intake would have very little water that comes 15 from the San Joaquin. With the barrier operations this 16 percentage is increased by 10 percent. At the same time the 17 source water portion of the canal increases from 0 to 3 18 percent. The same is true to the Clifton Court Forebay 19 intake. The only improvement in this case comes from the 20 Tracy pumping plant, which receives the San Joaquin salt 21 water portion, decreases from 20 to 12 percent. 22 The next table, Table 3, shows that this is 23 accomplished by corresponded increase from the source water 24 of Sacramento, which in the case of Los Vaqueros it 25 decreases without barrier case 84 percent to 75 percent, 3925 01 and the same percentages as the increase in San Joaquin flow 02 in the Contra Costa Canal, Clifton Court Forebay increase 03 and Tracy pumping plants. 04 So, based on these two pieces of information, I can do 05 a simple multiplication, which shows that under this 06 illustrative example the salinity increase at the Contra 07 Costa intake would be about 3 milligrams per liter chloride, 08 and in the Sacramento River -- in the Los Vaqueros intake 09 would be about 9 milligrams per liter chloride. 10 Mr. Hasencamp will talk about the impact this would 11 have on the District's operation of Los Vaqueros Reservoir 12 and, in general, how this would affect the water quality 13 supplied to our customers. 14 MR. MADDOW: That completes Dr. Shum's direct testimony 15 regarding salinity, Mr. Chairman. And just for the record, 16 let me introduce Mr. Bill Hasencamp, who is the District's 17 second witness for direct testimony. Mr. Hasencamp has 18 previously appeared giving testimony in these proceedings. 19 His statement of qualifications has been accepted into the 20 record, and he has taken the oath. 21 Mr. Hasencamp, did you prepare Contra Costa Exhibit 3? 22 MR. HASENCAMP: Yes, I did. 23 MR. MADDOW: And is Exhibit 3 a true copy of your 24 written testimony? 25 MR. HASENCAMP: Yes, it is. 3926 01 MR. MADDOW: Could you please summarize that testimony. 02 MR. HASENCAMP: Yes. Water quality is extremely 03 important to Contra Costa Water District. We are completely 04 reliant on the Delta for our water supply. And if Dr. 05 Denton could put up Figure 1 from Exhibit 3, this is a map 06 of the service area for Contra Costa Water District. 07 CCWD is the largest CVP contractor. We have a contract 08 for 195,000 acre-feet with the Bureau of Reclamation. And 09 essentially all of it is M&I supply. Our current demand 10 range is from about 130 to 140,000 acre-feet. Up until last 11 year, all of the CVP water diverted by the District was 12 diverted to Rock Slough intake. And I will try to describe 13 where I am pointing for a clean record and to head off any 14 objections that Mr. Birmingham might make. 15 MR. BIRMINGHAM: The only observation Mr. Birmingham 16 would make is that Westlands is going to be glad to know 17 that it is no longer the largest CVP contractor. 18 MR. HASENCAMP: Largest urban CVP contractor. 19 C.O. CAFFREY: All right, Mr. Birmingham. 20 MR. HASENCAMP: Now, until last year, CCWD diverted all 21 of its CVP water supply at the Rock Slough intake, which is 22 at the end of Rock Slough, and supplied water to the Contra 23 Costa Canal from Martinez and Pleasant Hill on the west to 24 Antioch and Oakley in the east. Up until last year, also, 25 CCWD had limited storage. Essentially, all of the storage 3927 01 was this Contra Loma Reservoir. And that amounted to less 02 than a three-day emergency supply. 03 So, consequently, CCWD was subject to large variations 04 in salinity at its Delta intake. Rock Slough is the last 05 major intake before the Delta becomes the ocean. And if 06 there was a catastrophic event in the Delta, CCWD would not 07 have any reliable supply. 08 So, in 1988 the voters of Contra Costa County approved 09 the $450,000,000 Los Vaqueros Reservoir Project. In 1994 10 this Board authorized Decision 1629 which gave the project 11 the necessary water right permits. 12 Now, the project included new intake at Old River, 13 which is about two miles north of the Clifton Court Forebay. 14 This allows for water that is generally better quality. The 15 quality to be diverted to both directly the service area 16 through the 12 miles of pipeline and also from the transfer 17 station, there is a pumping plant which can also divert 18 water into the new Los Vaqueros Reservoir, which has a 19 capacity of 180,000 acre-feet. 20 Reservoir filling began February of this year. We are 21 currently nearing 90,000 acre-feet of storage. The project 22 is not a water supply increase project, but it is a project 23 which is primarily to improve the delivery of water quality 24 to Contra Costa Water District and also provide emergency 25 supply. 3928 01 The way the project works is that when there is better 02 water quality in the Delta, CCWD will fill Los Vaqueros 03 Reservoir; and then, when the water quality in the Delta is 04 degraded or when the salinity from the Bay increases into 05 the Delta, then CCWD will use Los Vaqueros Reservoir to 06 blend with water from the Delta to improve its delivered 07 water quality. 08 The project has several benefits. The first benefit, 09 of course, is the water quality for CCWD. CCWD has a goal 10 of delivering no more than 65 milligrams per liter chloride 11 to its service area. Before the project, it was modeled 12 that we could deliver that about 50 percent of the time. 13 After the project, we should be able to deliver 65 or less 14 90 to 95 percent of the time. The project also provides an 15 emergency water supply. So more between three to six months 16 of supply for our service area, depending on the time of 17 year. And there is recreational, wildlife benefits 18 associated with the project. 19 The District purchased all of the watershed of the Los 20 Vaqueros Reservoir, and that has been set aside permanently 21 for wildlife purposes and for protecting water quality of 22 runoff into the reservoir. 23 In addition, the project provides benefits to the 24 Delta. For 30 days each spring CCWD will cease diverting 25 water from the Delta and instead rely completely on Los 3929 01 Vaqueros Reservoir for its water supply. This would happen 02 if there is sufficient water in the reservoir to continue to 03 meet emergency needs, the 30-day no diversion period, 04 typically in the month of April when there is most concern 05 for the Delta fisheries. 06 Additionally, because there is new intake on the Old 07 River along with our existing intake on Rock Slough, the 08 project provides operation flexibility. Part of the Los 09 Vaqueros Project provides for monitoring at each Delta 10 intake. And if there are fish abundant at one intake, CCWD 11 then can use the intake which would have less fish and less 12 impact to the Delta fisheries. 13 And lastly, the project provides incidental operational 14 benefits to the CVP. This is because we will tend to reduce 15 our Delta diversions during the dry, fall months and use Los 16 Vaqueros Reservoir, and tend to fill the reservoir when the 17 Delta is -- or when there is more outflow in the Delta. 18 Because of that, the Bureau of Reclamation will be able to 19 manage its supplies more in the dry periods. 20 Now I looked at the impacts associated with a slight 21 increase in salinity at the Delta intakes. I assumed that 22 in dry years there was a 5 milligram per liter increase at 23 each of our Delta intakes, at Old River and Rock Slough. 24 Forty percent of the years are dry and critical years. So 25 those are the years that I used to increase the chlorides in 3930 01 the model. This turns ought to be a long-term average 02 increase of about 2 milligrams per liter at CCWD Delta's 03 intakes. 04 The reason I chose the dry and critical years is those 05 are typically the years that projects that affect Delta 06 water quality have the largest impact in salinity in the 07 District's intakes. 08 Figure 2 shows -- this is Figure 2 from CCWD Exhibit 09 Number 3. Shows the impacts of increased salinity on 10 storage in Los Vaqueros Reservoir. The dotted line -- well, 11 there is one dotted line that shows emergency storage. 12 Emergency storage in nondry and critical years is 70,000 13 acre-feet. But in dry and critical years that is reduced to 14 40,000 acre-feet. The reason for the reduction is that the 15 District is willing to accept a little more risk in drought 16 times so that it can provide improved water quality. 17 The dotted line, labeled "base case," is the case with 18 a run with the existing chlorides that were simulated at the 19 two District intakes. Then another run, which has a 5 20 milligrams per liter increase in chlorides during the dry 21 and critical years, is the increased salinity case which is 22 shown with the solid line. 23 And there are -- the long-term average over 70 years 24 shows that the increased salinity case results in about a 25 3,000 acre-foot average decrease in storage in Los Vaqueros 3931 01 Reservoir. But there are times when it can be as much as 02 20,000 acre-feet. 03 If there were a catastrophic event in the Delta and 04 CCWD had to rely on Los Vaqueros Reservoir during a time 05 when the reservoir was lower, then that would be a very 06 significant impact to CCWD. 07 Additionally, sufficient storage is required in the 08 reservoir to provide the fishery benefits in the month of 09 April. And April of 1933 is simulated here, which shows in 10 the base case there is sufficient water for CCWD to stop its 11 Delta diversions and provide fish benefits. But in the 12 increased chloride case, the reservoir is already down 13 emergency storage, and so CCWD has to continue diverting 14 from the Delta and the intended fishery benefits do not 15 occur. 16 Figure 3 shows increased salinity delivered because of 17 the increased chlorides in the Delta. Obviously, if there 18 is increased chlorides in the Delta, there is increased 19 delivery. But the Los Vaqueros Project does a good job of 20 trying to mitigate those impacts. But when it runs out of 21 water in the reservoir for blending purposes, then, again, 22 CCWD has to rely on the Delta more frequently in the 23 increased chloride case than the base case. There are times 24 when there is significantly more, higher chloride is 25 delivered when there is no longer water in Los Vaqueros 3932 01 Reservoir to blend to the District's goal of 65 milligrams 02 per liter. 03 So, in summary, the Los Vaqueros Project, when in full 04 operation, hopefully next year, will provide water quality, 05 emergency, reliability and fishery benefits in the Delta 06 fisheries. Any project that causes even smallest salinity 07 increase at the District's intakes can have significant 08 impact on all of the intended to beneficial uses of the 09 project. 10 C.O. CAFFREY: Mr. Hasencamp, Ms. Forster has a 11 question for you. 12 MR. HASENCAMP: Yes. 13 MEMBER FORSTER: I am more familiar with thinking about 14 salt as TDS. I guess there is no correlation between 15 chloride and TDS. I just passed a note to Mr. Stubchaer, 16 but it would help me understand, like -- it would help me 17 understand the case you are putting on if you could tell me 18 what your goal for your municipal drinking water is in TDS 19 versus your chloride of 65. 20 Is there a way to explain the meaning of the 21 correlation? If there is no correlation, how would you 22 think about it in TDS? 23 MR. HASENCAMP: Dr. Shum might be able to help. 24 DR. SHUM: From the historical data of the correlation 25 between TDS and chloride, chloride goal of 65 would be in 3933 01 the 150 to 200 range of TDS. And because of the different 02 relationship between TDS and chloride for seawater and for 03 ag drainage, there is considerable variability in that. 04 MEMBER FORSTER: Thanks. 05 Thank you, Mr. Chairman. 06 C.O. CAFFREY: Thank you. 07 Please proceed, Mr. Maddow. 08 MR. MADDOW: Thank you, Mr. Chairman. 09 Finally, Dr. Shum will give testimony regarding CCWD 10 Exhibit 4 concerning dissolved oxygen matters. 11 Dr. Shum, did you prepare Contra Costa Exhibit 4? 12 DR. SHUM: Yes, I did. 13 MR. MADDOW: Is it a true copy of -- Exhibit 4 is, in 14 fact, a true copy of your testimony regarding dissolved 15 oxygen? 16 DR. SHUM: Yes, it is. 17 MR. MADDOW: Can you please summarize that testimony in 18 the five or so minutes we have remaining. 19 DR. SHUM: Contra Costa Water District Exhibit 4 20 discusses two issues with regard to the alternatives 21 proposed for the salt oxygen objective. The first issue is 22 the water quality impacts at the intakes which is similar to 23 that of the operation of the three ag barriers in the South 24 Delta during the summer. 25 The only difference is maybe some minor variability in 3934 01 the San Joaquin inflow salinity during the months of 02 September, October and November, which are proposed for the 03 head of Old River barrier operations to meet the dissolved 04 oxygen objectives. As in the transparency I showed earlier, 05 this shows the San Joaquin flows salinity during the three 06 months, September through November. And the red data points 07 are for Sacramento inflow. 08 Qualitatively, the difference is the same as in the 09 previous months, June to September, for the South Delta ag 10 barriers' operations. And because of the inflow export 11 ratio from September to November is the same as that in the 12 summer, the water quality impacts at the District for the 13 head of Old River barrier operations from September to 14 November would be the same as that from June to September. 15 The other issues, CCWD Exhibit 4 addresses the need to 16 address the bigger problem of the increasing point source 17 directly below from wastewater treatment plants, and that is 18 not just limited to the Stockton wastewater treatment 19 plant. There are various protections on the population 20 growth in the region in the Central Valley which, depends on 21 the study, varies in the order of a few millions. 22 A good portion of this population would be in the 23 Central Valley. Their wastewater discharge would be into 24 the waste water upstream of existing Delta intakes. This is 25 a much different situation than what we have seen in the 3935 01 past, in which most of the wastewater for Central San 02 Francisco, the East Bay are discharging downstream of the 03 urban water intakes. 04 This leads to problems, not just on the oxygen 05 depletion, because of the chemical oxygen demand in this 06 wastewater, but also out of a concern to urban agencies, in 07 particular, again, the carbon pathogens, salinity and 08 metals. 09 MR. SIMMONS: Mr. Chairman. 10 C.O. CAFFREY: Mr. Simmons. 11 MR. SIMMONS: I object on grounds of relevance. Phase 12 V is salinity objectives in San Joaquin River and DO 13 objective on the San Joaquin River. This is more or less a 14 speech about wastewater discharges, metals and organic 15 carbon. 16 C.O. CAFFREY: Mr. Maddow. 17 MR. MADDOW: Mr. Chairman, the thrust of CCWD Exhibit 4 18 is to deal with the dissolved oxygen issue that is clearly 19 the subject of Phase V. Dr. Shum's testimony in this 20 portion of Phase IV [verbatim] is in regard to the dissolved 21 oxygen which has as its corollary a variety of other issues 22 related to municipal wastewater discharges. We believe that 23 it is relevant in this phase. 24 C.O. CAFFREY: I am going to note Mr. Simmons' 25 objection. It is on the record. I am going to allow the 3936 01 direct testimony to continue. The Board Members do want to 02 hear it. It will go to the Board Members, of course, as 03 always, to determine the weight and relevance of the 04 evidence. 05 But you are noted on the record, Mr. Simmons. 06 I also want to remind that Dr. Shum, he is down to 07 about three and a half minutes of the total 40 minutes, so 08 in his 20 minutes. 09 MR. MADDOW: Thank you, Mr. Chairman. 10 C.O. CAFFREY: You need to wind up in about three and a 11 half minutes, Dr. Shum. 12 DR. SHUM: Thank you. 13 C.O. CAFFREY: Thank you. 14 DR. SHUM: The reason I pointed to this issues, when we 15 look at the alternatives discussed in the EIR, in the Draft 16 EIR, we are not under the impression that the alternative of 17 installing the head of Old River barrier is only a 18 short-term solution. As more wastewater comes into the 19 affected area with the associated BOD, which would deplete 20 the oxygen level further, this would have impacts on the 21 ability to meet the DO objective. That is the reason why I 22 bring that up. 23 And to address the issues of increasing wastewater 24 discharge, we have a number of suggestions that the State 25 Board can consider in addition to the alternative of the 3937 01 head of Old River barrier which would have significant and 02 directed impacts. 03 And these alternatives include the use of best 04 management practices to reduce and minimize the contaminant 05 load into the waterway, the use of water recycling and water 06 reuse to decrease the amount of water -- the amount of 07 wastewater discharged and the use of advanced treatment such 08 as tertiary treatment to decrease the biochemical oxygen 09 amount in the wastewater. And in the later date, when 10 membrane filtration becomes economically feasible, to 11 include it in the consideration for all existing and new 12 wastewater treatment plants. 13 MEMBER FORSTER: I didn't hear your last thing, after 14 tertiary treatments. 15 DR. SHUM: Membrane filtration, when it becomes 16 economically feasible and practicable. 17 One last point is pollution offset measures which is an 18 equivalent reduction in the contaminant load into the river 19 as a result of the increase in the wastewater discharge. 20 That concludes my testimony. 21 C.O. CAFFREY: Thank you, Dr. Shum. 22 MR. MADDOW: That concludes all of Contra Costa's 23 direct testimony in this phase. I assume we are 24 approaching break time and we will be prepared to take 25 cross-examination after the break in the event you choose to 3938 01 proceed, Mr. Chairman. 02 C.O. CAFFREY: Thank you, Mr. Maddow. 03 We will take a break now, and then we will come back 04 for cross-examination. 05 Thank you, sir. 06 (Break taken.) 07 C.O. CAFFREY: We are back. 08 MR. MADDOW: We are prepared for cross-examination, Mr. 09 Chairman. 10 Two brief matters. During the break, Contra Costa 11 Water Team is a resourceful, talented, and with one MBA and 12 three Ph.D.s, we were able to get the math right in regard 13 to Ms. Forster's question and so -- 14 C.O. CAFFREY: You obviously have some University 15 Pacific graduates. 16 MR. MADDOW: We have them for all over the place. 17 DR. DENTON: Stanford. 18 MEMBER DEL PIERO: As you recall, there is evidence in 19 the record that people from Stanford can add. We know that. 20 MR. MADDOW: I think I testified to that. 21 C.O. CAFFREY: Go ahead. 22 MR. MADDOW: Dr. Shum would like to just make one 23 clarification of his response to Ms. Forster's question. 24 C.O. CAFFREY: Go ahead, Dr. Shum. 25 DR. SHUM: My response showed that I did not go to 3939 01 Stanford. I based my answer on a conversion equation, and 02 my mental arithmetic was not right. The range should be 03 more like in the 200 to 250 TDS range. So at 65 milligram 04 per liter objective would correspond to between 200 and 250 05 TDS. 06 MEMBER FORSTER: Thank you. 07 C.O. CAFFREY: Thank you, Dr. Shum. 08 MR. MADDOW: Mr. Chairman, as I said at the outset, Dr. 09 Shum and Mr. Hasencamp, of course, have delivered the direct 10 testimony and are responsible for Exhibits 2, 3 and 4. Dr. 11 Richard Denton and Dr. David Briggs, who are also members of 12 the Contra Costa team, are here to assist in regard to 13 cross-examination should the breadth of the questions get 14 into areas in those exhibits which their particular 15 knowledge might be more on point than Dr. Shum and Mr. 16 Hasencamp. So, with the indulgence of the Board, we are 17 offering them as panelists, as well, and we are ready for 18 cross-examination. 19 Dr. Briggs has not taken the oath. 20 (Oath administered by C.O. Caffrey.) 21 C.O. CAFFREY: By a showing of hands, who wishes -- 22 which of the parties wish to cross-examine this panel? All 23 hands at once, please. 24 Mr. Herrick, Mr. Sexton, Mr. Manasian, Mr. Simmons, Mr. 25 Nomellini, Mr. O'Laughlin. 3940 01 Anybody else? 02 We have Mr. Herrick, Mr. Sexton, Mr. Manasian, Mr. 03 Simmons, Mr. Nomellini and Mr. O'Laughlin as our 04 cross-examiners. 05 Anybody come in late wishing to cross-examine the 06 panel? 07 All right. Mr. Herrick, would you like to begin, sir. 08 MR. MADDOW: Mr. Chairman, while Mr. Herrick is coming 09 up, Ms. Whitney was kind enough to remind me that Dr. 10 Briggs' statement of qualifications, which was previously 11 submitted to the Board, has not been introduced. May I just 12 get that on the record? 13 C.O. CAFFREY: You may, and we will consider it at the 14 end of the case in chief. 15 MR. MADDOW: Dr. Briggs, is Contra Costa Exhibit 1-F a 16 true copy of a resume of your qualifications? 17 DR. BRIGGS: Yes. 18 MR. MADDOW: Could you very briefly just state those 19 qualifications for the record. 20 DR. BRIGGS: My name is David Briggs. I'm an associate 21 water resources specialist at Contra Costa Water District. 22 I have a Ph.D. from Stanford University in numerical 23 simulation of hydrodynamics. 24 C.O. CAFFREY: Thank you, sir. 25 MR. MADDOW: Dr. Richard Denton, is CCWD Exhibit 1-C a 3941 01 true copy of a resume of your qualifications? 02 DR. DENTON: Yes, it is. 03 MR. MADDOW: Could you very briefly summarize those 04 qualifications for the record. 05 DR. DENTON: Yes. I have a Ph.D. from the University 06 of Canterbury in New Zealand. I am a registered civil 07 engineer in California, State of California. I have worked 08 in university in Germany for three years, and I was at 09 University of California at Berkeley on the faculty in the 10 Civil Engineer Department for eight years. And I have been 11 working for the Contra Costa Water District for nine 12 years. And I'm currently the water resources manager. 13 MR. MADDOW: Thank you, Mr. Chairman. I apologize to 14 Mr. Herrick for that interruption. 15 C.O. CAFFREY: I am sure Mr. Herrick is very 16 forgiving. 17 Go ahead, sir. 18 ---oOo--- 19 CROSS-EXAMINATION OF CONTRA COSTA WATER DISTRICT 20 BY SOUTH DELTA WATER AGENCY 21 BY MR. HERRICK 22 MR. HERRICK: Thank you, sir. 23 John Herrick for the South Delta Water Agency. 24 I apologize, my questions are generally to the panel as 25 a whole. I will try to narrow them down if and when I can 3942 01 figure out the best person. 02 C.O. CAFFREY: Actually, Mr. Herrick, I think our 03 regulations really are set up in such a way that it is most 04 appropriate to give your questions to the panel as a whole. 05 That is why the panels are here. 06 I don't know if I ever really clarified that. You can 07 ask questions to a panel as a whole without necessarily 08 identifying any particular member, and then it's up to them 09 as to who answers the question. 10 Go right ahead, sir. 11 MR. HERRICK: I appreciate that, Mr. Chairman. 12 For the panel, then, do you agree that the ISDP has as 13 its purpose to mitigate the impacts of the State Water 14 Project and the Central Valley Project on the South Delta? 15 DR. SHUM: I believe, as Mr. Mike Ford pointed out 16 yesterday, the salinity problems in the South Delta has a 17 host of reasons. And State Water Project and Central Valley 18 Project pumping is one of the reasons. 19 From what I understand from Mr. Ford's testimony, he 20 does not have an opinion -- 21 THE COURT REPORTER: Please speak into the microphone. 22 DR. SHUM: From what I understand from Mr. Mike Ford's 23 response to the questions yesterday, he does not have a 24 opinion on whether the export pumping is the primary cause 25 or the major cause of the South Delta salinity problem. 3943 01 MR. HERRICK: How about with regard to water levels? 02 DR. SHUM: From my own simulation of the drawdown of 03 the water level in the South Delta, using the Fischer Delta 04 Model, the results show that the drawdown is around half a 05 foot. So, the model result does not appear to imply that 06 the projects would have detrimental affect on South Delta 07 water level. 08 There are a lot of -- there are a number of assumptions 09 made in those simulations. For example, it doesn't take 10 into account the problem of siltation and also the variable 11 pumping rate South Delta has in various diversion pumps. 12 So, the reality may be a bit different from the model 13 results, and apparently we have seen problems of dewatering 14 in South Delta. So I think it is a question still open. 15 MR. HERRICK: You would agree, wouldn't you, that a 16 drawdown of a half a foot in low tide would be more 17 significant than a drawdown at a high, high tide? 18 DR. SHUM: I believe that would be. 19 MR. HERRICK: Does Contra Costa Water District take the 20 position on whether or not the CVP should mitigate its 21 effects, if any, on the South Delta water quality and 22 quantity? 23 DR. DENTON: I think the position of CCWD is that any 24 project proponent or lead agency for any project in the 25 Delta needs to mitigate their impact. 3944 01 MR. HERRICK: Is CCWD a CVP contractor? 02 DR. DENTON: Yes, we are. 03 MR. HERRICK: Does the CCWD intake contribute 04 incrementally to any of the South Delta problems that we 05 have discussed just recently? 06 DR. DENTON: Very, very small increment, if at all. 07 MR. HERRICK: Does the Los Vaqueros Project, and by 08 that I guess just the intake, have any effect on the water 09 quality at Rock Slough? 10 DR. DENTON: Los Vaqueros pumping or project? 11 MR. HERRICK: The project. 12 DR. DENTON: The effect that we may see at various 13 times is that if there is an agricultural drainage in the 14 vicinity of the Contra Costa Canal intake, and we shut down 15 our pumping, because of the flexibility offered by the Los 16 Vaqueros Project, you may see changes in some of the 17 vicinities for that reason. 18 In the base case before the project, for instance, we 19 would pump at Rock Slough exclusively. With the project we 20 can now pump at Old River some of the time and relieve 21 pumping from Rock Slough. Under those conditions there may 22 be a change in the distribution of agricultural drainage in 23 the vicinity at Rock Slough. 24 MR. HERRICK: Isn't that change described in the Los 25 Vaqueros EIR as an increase in salinity at some times. 3945 01 DR. DENTON: Yes. It does increase sometimes. 02 MR. HERRICK: Has that increase in salinity been taken 03 into account in the calculations done by Dr. Shum and Mr. 04 Hasencamp for today's presentation? 05 DR. SHUM: In my simulation in Exhibit 2, I do not have 06 a specific salinity assumed for the Rock Slough intake, 07 under existing conditions. What I am looking at is the 08 incremental degradation due to the change in source water 09 fraction from -- by a decrease in the Sacramento River 10 inflow to an increase in the San Joaquin flow water at the 11 District's intakes due to the barriers' operations. 12 So, specifically, it is not -- it is not -- there is no 13 sensitivity to the specific salinity at the intakes. 14 MR. HERRICK: But you would agree, then, that there are 15 other possible changes at the water quality measured at Rock 16 Slough other than the South Delta Barrier Program as 17 proposed? 18 DR. SHUM: The salinity is variable. 19 MR. HERRICK: One of the potential causes of that 20 variability is the operation of Los Vaqueros; is that not 21 correct. 22 DR. SHUM: I think any changes in Delta operations 23 would affect the salinity to a certain degree, including the 24 Los Vaqueros operations. 25 MR. HERRICK: Isn't Rock Slough a water quality 3946 01 objective point, I will say, in the 1995 Water Quality 02 Control Plan? 03 DR. SHUM: Yes, it is. 04 MR. HERRICK: Does CCWD have a position of who should 05 be responsible for meeting that? 06 DR. DENTON: No. We, obviously, want that standard to 07 be met. And under D-1485, the projects had the 08 responsibility. At this stage we haven't formulated an 09 opinion on who should be responsible. 10 MR. HERRICK: So does CCWD have any recommendation on 11 who should meet the standard there? 12 DR. DENTON: Yes. We will be preparing that 13 recommendation for Phase VIII. 14 MR. HERRICK: Does CCWD have any proposals for how the 15 effects that the State Water Project and the Central Valley 16 Project -- let me start over. 17 Does CCWD have any proposal as to how one or what 18 entity might mitigate the effects on the South Delta caused 19 by the operation of the export projects? 20 DR. SHUM: I believe before we get into the 21 determination of mitigation, we need to quantify those 22 impacts. And as far as I understand, those impacts are not 23 quantified. 24 MR. HERRICK: You are, then, not familiar with the 1980 25 Report, SDWA Exhibit 48? It's entitled The Effects of the 3947 01 CVP on Southern Delta Water Supply Sacramento-San Joaquin 02 River Delta, California, dated June 1980. And the reason I 03 ask that question is, that quantifies the effects of the 04 CVP, at least, on South Delta. 05 DR. SHUM: No, I have not read that report. 06 MR. HERRICK: Is Contra Costa Water District a 07 signatory of the Bay-Delta Accord? 08 DR. DENTON: Yes, it is. Greg Gartrell signed on 09 behalf of our General Manager, Walter Bishop. 10 MR. HERRICK: Doesn't the Bay-Delta Accord, I will say, 11 require, anticipate installation of the head of Old River 12 barrier? 13 DR. DENTON: Right. It represents or requires that in 14 the post flow period and also possibly in the fall. 15 MR. HERRICK: Is it your understanding that the head of 16 Old River barrier can at times prevent flow down Old River 17 from the San Joaquin? 18 DR. DENTON: When it is in place, yes. 19 MR. HERRICK: Do you understand that South Delta in 20 any way complains that that can have adverse impacts by 21 shutting off that flow? 22 DR. DENTON: Yes. 23 MR. HERRICK: Do you understand that the South Delta 24 tidal barriers are, in part, to mitigate the effects of the 25 head of Old River barrier? 3948 01 DR. DENTON: When the head of Old River barrier is in 02 place, they could serve that purpose. They themselves would 03 then need to be mitigated. All -- the package of barriers 04 would then need to be mitigated if they caused significant 05 impacts. 06 MR. HERRICK: Do you agree, then, that the barrier 07 program needs to be operated in such a manner to mitigate 08 any adverse effects? 09 DR. DENTON: Definitely. 10 MR. HERRICK: Are you opposing the South Delta Barrier 11 Program to the extent that it mitigates impacts of the head 12 of Old River barrier? 13 DR. DENTON: We are not imposing South Delta Barriers 14 Program at all in its entirety as long as those impacts are 15 mitigated. 16 MR. HERRICK: My impression from reading the testimony 17 today was that it was prepared before DWR had investigated 18 alternative operational programs for the South Delta 19 Program, and then your testimony was amended for the final 20 version in that you recognize that, although you think there 21 are adverse impacts, operational changes such as in the 22 Grant Line barrier, may provide the protection you are 23 looking for? 24 DR. DENTON: Dr. Shum's testimony includes several 25 layers. As an attachment, there is our comments on the 3949 01 State Board's EIR, and then as an attachment to that are our 02 comments on the ISDP or draft ISDP, environmental 03 documentation and temporary barriers program. Those 04 comments were much earlier in time, of course, and Dr. 05 Shum's testimony includes more recent data that we received 06 from DWR. 07 MR. HERRICK: Again, just for the record, you're not 08 opposing the barrier program as such as long as significant 09 impacts, you believe -- as long as significant impacts are 10 mitigated; is that correct? 11 DR. DENTON: Yes. We are also suggesting, though, that 12 there may be alternatives to having barriers, and there is a 13 list in Dr. Shum's testimony. 14 MR. HERRICK: Do you know whether or not those 15 alternatives were considered in the development of the ISDP? 16 DR. SHUM: I believe it was in Chapter 3 or Chapter 4 17 of the ISDP. It listed a number of alternatives to the 18 barriers that include, I believe, enlargement of the Clifton 19 Court Forebay, alternative in different locations, reduction 20 in the export pumping and alternative points of diversions 21 to South Delta. And the alternatives we proposed for 22 consideration in Exhibit 2 are in addition to those 23 alternatives. 24 MR. HERRICK: Could we put up your Figure 4 again, 25 please, of Exhibit 2, sorry. 3950 01 Dr. Shum, it was my understanding that this figure 02 shows chloride at Vernalis during the period when barrier 03 operations occur? 04 DR. SHUM: That is correct. 05 MR. HERRICK: Now, you were using this information to 06 run a model run or to make further calculations? 07 DR. SHUM: My estimate on the water quality impacts of 08 salinity impacts are based on two quantities. The 09 difference between San Joaquin salinity and Sacramento River 10 salinity is one. And this is input to a simple equation to 11 get an estimate of impact. 12 MR. HERRICK: Could you identify the time period you 13 have designated for when the barriers are operating? 14 DR. SHUM: The period was -- I got it from the draft 15 EIR/EIS of the ISDP. That is when all four -- all three 16 South Delta barriers are in operation, which is from June to 17 September, which is the duration shown, this area. 18 MR. HERRICK: I am not sure what you are trying to 19 accomplish with this in that barrier operations as set forth 20 in the ISDP do not reflect the actual operation of the 21 barriers from 1990 to '97. 22 Could you explain to me what this figure is showing us 23 with regard to barrier operations and salinity, or excuse 24 me, chloride? 25 DR. SHUM: I don't really understand your question. In 3951 01 the Draft EIR/EIS of the ISDP the three ag barriers are 02 proposed to operate from June to September. In terms of -- 03 that is not a reflection of the barrier operations. 04 Can you be more specific about that. 05 MR. HERRICK: Yes. I am just having a difficult time 06 following 1991 and '2. When did the drought end at? '92? 07 So there is a couple of years of extreme drought there and a 08 couple of years of extreme wet. Is that correct? 09 DR. SHUM: That is correct. 10 MR. HERRICK: But the barriers were not, in fact, in 11 during those four months; is that correct? In all those 12 times, excuse me. 13 DR. SHUM: The permanent barriers as proposed in ISDP 14 are not in for the simple reason that they have not been 15 approved and constructed. 16 DR. DENTON: I think the point of this figure was more 17 just to say that during the period of time in the future for 18 the months in the future when these barriers would be in 19 place, there is a significant difference between the 20 Sacramento water quality and the San Joaquin River water 21 quality. 22 This is the San Joaquin River quality at Vernalis. So 23 it hasn't had a chance to be affected by the barriers at 24 that point. So just, purely, historical data. 25 MR. HERRICK: But you are using these numbers to 3952 01 eventually calculate the change in chlorides at Rock Slough 02 and Los Vaqueros, correct? 03 DR. SHUM: Yes. 04 MR. HERRICK: In your examination of this did you take 05 into consideration the operation of the three barriers 06 during this time? 07 DR. SHUM: The operations according to the Draft 08 EIR/EIS or ISDP, which I take it to mean that no downstream 09 flow allowed east to west in all three barrier locations. 10 MR. HERRICK: That is different than the presentation 11 of DWR yesterday when they gave an example of downstream 12 flow in Grant Line but reverse flow in Middle River and Old 13 River, correct? 14 DR. SHUM: Are you referring to Figure 16? 15 MR. HERRICK: I think it was Figure 4 or 6 or 16 something. They had the figure that had the arrows on it 17 showing the flows. 18 MEMBER DEL PIERO: Figure 6. 19 MR. MADDOW: Figure 6 of what exhibit, Mr. Herrick? 20 MR. HERRICK: DWR 37. 21 DR. SHUM: If I can take a quick look. 22 Yes. In Figure 6 there is a flow in the -- from east 23 to west direction along Grant Line Canal. I don't have the 24 details of the specifics on how that came about. It could 25 be because of the high diversion along Grant Line Canal or 3953 01 it could be an operation that is different from that 02 discussed in the ISDP. 03 MR. HERRICK: That is the point I am trying to make. 04 Depending on the actual operations of the barriers, it would 05 affect your calculation of changes in chlorides at Rock 06 Slough and Los Vaqueros, correct? 07 DR. SHUM: Definitely, and that is one of the main 08 point I had in my exhibit. 09 MR. HERRICK: Is it -- which one of you might be able 10 to fill us in on the terms of the Los Vaqueros permit as to 11 when diversions can take place? 12 MR. HASENCAMP: Why don't you ask the question, then we 13 can decide. 14 MR. HERRICK: That is a question. Which one of you can 15 fill me in on the terms of the Los Vaqueros diversions? 16 MR. HASENCAMP: I might be able to. 17 DR. DENTON: Mr. Hasencamp. 18 MR. HERRICK: Sorry. 19 Mr. Hasencamp, can you tell me, generally speaking, I 20 guess, the diversion times and restrictions on the Los 21 Vaqueros permit? 22 MR. HASENCAMP: Yes. With the Los Vaqueros Project 23 there are actually two ways to fill Los Vaqueros Reservoir. 24 There is a Los Vaqueros water right, which allows for 25 diversion of surplus water from November through June of 3954 01 each year. And there is also the ability to purchase water 02 from the CVP and fill the reservoir at any time of the 03 year. 04 Now, beyond that, if we are above emergency storage, 05 which is 70,000 acre-feet in normal years, then we cannot 06 fill for 75 days in each spring, which is roughly March 15th 07 through the end of May. Also, there are X2 requirements 08 between December and June, and each month there is a 09 different requirement that X2 has to be met at different 10 locations in the Delta before we can divert any water. 11 MR. HERRICK: Again, excuse me. This is not -- I am 12 not trying to trick you. This is my ignorance. Is then, 13 say, May 31st generally a cutoff date for diversion to Los 14 Vaqueros? 15 MR HASENCAMP: That is the end of the period when we 16 are not allowed to divert. So we are not allowed to divert 17 normally between March 15th and May 31st. 18 MR. HERRICK: Your diversions to Los Vaqueros start on 19 June 1st? Restart? 20 MR. HASENCAMP: Well, typically, Los Vaqueros is only 21 used to supply 15,000 acre-feet. We can typically refill 22 that in a month. So, we will try to time the filling of 23 when the Delta water quality is the best. Typically. What 24 happens, in April we will have to draw the reservoir down 25 approximately 10,000 acre-feet for fishery benefits and not 3955 01 rely on the Delta at all. And then, if there is sufficient 02 water quality in June, then we would refill in June. But if 03 the water quality is not sufficient, then we would wait and 04 refill later. 05 MR. HERRICK: Is that part of your calculation in your 06 written testimony as to when your flexibility to fill Los 07 Vaqueros after June 1st, say, would be affected? 08 MR. HASENCAMP: Yes. If, for example, the modeling 09 assumed that we would only fill if the chlorides at Old 10 River are at or below 50 milligrams per liter. So, if in 11 June the chlorides were, for example, 47 and we wanted to 12 refill the reservoir, we would fill it in June. But if 13 there was a 5 milligram per liter increase, for example, and 14 it went to 52, then we would defer and wait until the water 15 quality got better. So, yes. 16 MR. HERRICK: What is the basis of the 65, is it 17 milligrams per liter, goal of Contra Costa's deliveries? 18 MR. HASENCAMP: That was approved by our Board several 19 years ago, and that was -- I don't know exactly what the 20 basis was. 21 MR. HERRICK: Do you know of any significant effect on 22 your customers if the 65 goal was not reached? 23 MR. HASENCAMP: Well, the 65 goal is -- cannot be 24 reached in a number of different ways. It cannot be reached 25 by -- if we run out of blending water in Los Vaqueros 3956 01 Reservoir, for example, instead of blending to 65, we may 02 have to then completely rely on the Delta. If the Delta 03 were in a period of time when it is very salty, then we 04 would have to potentially abandon the 65 goal and divert 05 whatever water quality was in the Delta at that time. 06 MR. HERRICK: Couldn't your operations be adjusted so 07 that instead of meeting the 65 goal one year, you thought 08 you had to meet a 68 goal, and thus limit the impacts on 09 your customers? 10 MR. HASENCAMP: Well, they could be, potentially. But 11 the voters of Contra Costa Water District authorized the 12 $450,000,000 project to meet a 65 milligram per liter goal. 13 We would have a concern about changing that goal because of 14 something in the Delta. If you said, "Well, there was 15 something -- a little impact on the Delta. Let's go to 68 16 this year. There's a little bit more here, let's go to 70." 17 And, then, pretty soon each little impact is more and more 18 significant. The bond measure passed on the assumption that 19 we would try to meet 65 to the extent we can, and that is 20 currently where we are operating. 21 DR. DENTON: Could I just answer that. One additional, 22 the 65 goal was done at a time when people were concerned 23 about drinking water treatment with respect to 24 trihalomethane, things like that. Initially was taste, what 25 taste people could handle in terms of salinity. Then we 3957 01 moved into looking at disinfection by-products from chlorine 02 disinfection. And more recently, this has been brought up 03 in the arena of CalFed, that if you look at potential future 04 drinking water regulations and the sort of treatment that 05 you may need to go to, including osmotion, there are numbers 06 out there that have been submitted to CalFed from the other 07 water agencies based on an expert panel report that may 08 bring you down to even 20 chlorides that might be as low as 09 you need to go to assure that you meet future drinking water 10 regulations. 11 But at this stage, that 65 is the goal of the District. 12 We want to hold to that goal, but we may come back later and 13 say we want to get something even better. 14 MR. HERRICK: I guess the point of my question, Mr. 15 Hasencamp, your analysis was based on operating Los Vaqueros 16 and I guess the Rock Slough intake in order to meet 65. And 17 based on that, you determined when and what effects would 18 occur on both storage amounts and deliveries; is that 19 correct? 20 MR. HASENCAMP: Yes. 21 MR. HERRICK: In any particular year that you are 22 operating Los Vaqueros, would not the operators adjust their 23 operations to take into effect considerations rather than, 24 say, use up all Los Vaqueros? 25 MR. HASENCAMP: They would look at a number of factors 3958 01 each year. And certainly they will look at the amount of 02 water they have in the reservoir in determining operations. 03 MR. HERRICK: They wouldn't take all the rest of Los 04 Vaqueros in order to maintain 65 milligrams per liter for a 05 month and then run out; they would stretch that out if they 06 needed to? 07 MR. HASENCAMP: Well, the problem is it is very 08 difficult to forecast chlorides. You are right, if you have 09 it, knew what the chlorides were for the next five years, 10 then you could plan much more efficient operations. But 11 especially during the dry period, things can change rapidly. 12 It is very difficult to plan as you are suggesting. 13 MR. HERRICK: Is it true that the chloride -- the 14 source of the chlorides is from the saltwater intrusion and 15 not coming down the San Joaquin River? 16 MR. HASENCAMP: I will defer to Dr. Shum. 17 DR. SHUM: There are a number of factors affecting the 18 level of chloride at the District. Seawater intrusion, 19 obviously, is one of the main factors. Others, as I showed 20 in the exhibit, there could be a portion of San Joaquin 21 inflow that reaches our intake. And that being the case, 22 the chloride, a portion of the chloride level at our intakes 23 would be due to San Joaquin. The rest would come from the 24 Sacramento River and also in-Delta and return flows. 25 MR. HERRICK: Dr. Shum, your calculation on your 3959 01 testimony, Pages 8 and 9, comes up with a 3 milligram per 02 liter increase of chlorides at Rock Slough and 9 milligram 03 per liter at Los Vaqueros. But then, Mr. Hasencamp, your 04 analysis assumes a 5 milligram per liter increase at, I 05 believe, both of those. 06 Is that correct? 07 MR. HASENCAMP: Yes. 08 MR. HERRICK: Could you explain why the numbers -- you 09 didn't run the numbers developed by Dr. Shum? 10 MR. HASENCAMP: Yes. Mine was for an illustrative 11 purpose, to show that projects -- if a project were to 12 produce a 5 milligram per liter impact at District intakes, 13 what the impacts on the Los Vaqueros Project and the 14 District would be. We don't have a detailed study that 15 shows what the impacts would be over the period of record. 16 So, mine was more of an illustrative purposes. 17 MR. HERRICK: In any modeling run that determines, 18 let's say, a 5 milligrams per liter increase in chlorides, 19 would that 5 milligrams be within the margin of error of any 20 such model run or would you be confident if you went through 21 a calculation and came up with 5 milligrams, that you could 22 rely on that? 23 MR. HASENCAMP: Well, if you have an increase in 5 24 milligram per liter on all months at both intakes, then, 25 yes. In the individual months, you are correct, there is 3960 01 uncertainty. But when you have it over a long period of 02 time. Just like any model, if you show an increasing trend, 03 then on a long term you can get fairly accurate results. 04 MR. HERRICK: I understand. I guess the point I am 05 making is in both our analysis, the Board's, the ISDP's 06 analysis, somebody is going to be doing a model run to look 07 at those numbers and then predict whether or not there will 08 be an insignificant impact or not. In the development of 09 that sort of analysis, I am asking whether or not a 5 10 milligram increase should be trusted? Or would that be in 11 the fuzzy area of the model's limitation? 12 DR. SHUM: As Mr. Hasencamp testified just earlier, the 13 5 milligram per liter is for illustrative purpose. Because 14 of the uncertainty in the barrier operations and also the 15 amount of work that it takes to really accurately reflect 16 the impacts, we have not gone into a, say, 70- or 72-year 17 historical hydrology simulation. 18 And my estimate of 3 milligrams per liter at Rock 19 Slough and 9 milligrams per liter chloride at Los Vaqueros 20 of some kind of average impacts, based on the salinity 21 difference, I have shown and also the model simulations for 22 representative hydrological conditions during the months of 23 operation. So, obviously, it is for illustration and there 24 can be leeway, either way. 25 When we go into a more accurate, long-term simulation 3961 01 of the impacts, as far as modeling uncertainty, we are 02 dealing with a consistent increase. And in my simulation I 03 am looking at the impact by estimating the incremental 04 degradation, which in Exhibit 3 of Mr. Hasencamp assumed 5 05 milligrams per liter. 06 So, that is a long answer to your short question of 07 modeling uncertainty. I think at issue here is more than 08 just modeling uncertainty. It has to do with the amount of 09 work that has gone into these simulations. And it is our 10 opinion, and we believe that, given that the degradation is 11 incremental, there will be degradation. And the question is 12 by how much. And we believe it will be on the order of a 13 few milligrams per liter chloride. 14 MR. HERRICK: That is what we -- all of us haven't 15 determined yet, is an estimation of, say, a long-term effect 16 with regards to chlorides. Is that correct? 17 DR. SHUM: That is correct. 18 MR. HERRICK: At this point we can't say whether or not 19 the impacts would be significant or not; is that correct? 20 DR. SHUM: That is correct. One major goal of Exhibit 21 2 is to urge the State Board to have a comprehensive, 22 accurate simulation of the impacts of the barriers before 23 the Board decides on the project. 24 MR. HERRICK: And, of course, is it your understanding 25 that the ISDP, through its CEQA and NEPA process, will have 3962 01 to identify significant impacts? Is that correct? 02 DR. SHUM: That's correct, and we have submitted 03 extensive comments. 04 MR. HERRICK: Do you happen to know what the 05 incremental increase at Rock Slough was predicted under the 06 Los Vaqueros EIR? 07 DR. DENTON: I don't know at the moment what the 08 average increase is. But at times, when all the pumping was 09 concentrated at Old River and Rock Slough was shut down and 10 there was agricultural drainage from Holland Tract and some 11 of the other field tracts, there was increases at that point. 12 MR. HERRICK: Do you recall whether or not those 13 increases in chlorides were approximately 5 milligrams per 14 liter or more? 15 DR. DENTON: It would probably be more than 5 16 milligrams. 17 MR. HERRICK: Can you tell us what mitigation measures 18 are identified in that EIR to address that? 19 DR. DENTON: Can't remember exactly. I think at that 20 time we were considering the idea of relocating that 21 agriculture drainage. 22 DR. SHUM: May I clarify? 23 The impacts you are referring to when Los Vaqueros is 24 pumping that the salinity in Rock Slough may increase, that 25 may be the case. But in terms of the water quality of our 3963 01 diverted water, if we are pumping from the Los Vaqueros 02 intake, we will not be taking any water or will be taking a 03 much reduced amount of water from Rock Slough. 04 So, if you take that into account, the salinity of the 05 total diverted water to our customers would be a net 06 beneficial impact. 07 DR. DENTON: The other point about that is if you are 08 dealing -- other people concentrate a lot more on loads than 09 we do, necessarily, or as well as us. In this particular 10 case, you have to be careful with the concentration. If you 11 shut down Rock Slough and there is a small amount of 12 agricultural drainage into there, that the concentration 13 will shoot way up. Then what we found was typical. When we 14 were making decisions, shall we turn on Rock Slough and take 15 water from there or not, the computer model was sort of 16 fixating on the fact that the concentration was high, and, 17 therefore, wasn't tending to say, "Let's take water from 18 there because it was so bad." 19 But, in fact, in the Fischer Delta Model what you 20 found, and I think Dr. Shum will correct me, it is only 21 about a day and you've pulled all of that water out of Rock 22 Slough, and then all the good water that is further out in 23 the Delta then moves on through. 24 From a salt load or a contaminant load point of view, 25 there is very small amount of contaminant there, but it does 3964 01 manifest itself as a high concentration for a short period 02 of time. 03 MR. HERRICK: Dr. Shum, you said that is the time when 04 Rock Slough is not diverting or not diverting very much, 05 and, therefore, the increased chlorides at that location 06 don't have or have a small effect on your water supply; is 07 that correct? 08 DR. DENTON: The impact on us, on Contra Costa, is very 09 small. 10 MR. HERRICK: As soon as you turn those back on, you're 11 sucking up all that bad water at first; is that correct? 12 DR. SHUM: Yes. Only for a short period of time. 13 MR. HERRICK: During those times when the water at Rock 14 Slough, water quality at Rock Slough, is decreased, the 15 water quality is decreased, what sort of -- 16 DR. SHUM: You mean higher salinity? 17 MR. HERRICK: Yes, higher salinity. 18 What measures were identified in your EIR to help meet 19 either the D-1485 standard there or the 1995 Water Quality 20 Control Standard there? 21 DR. DENTON: I am not sure whether we addressed in that 22 much detail. 23 MR. HERRICK: I think that is all, Mr. Chairman. I 24 appreciate that very much, for everybody's consideration. 25 Thank you much, Mr. Maddow. 3965 01 C.O. CAFFREY: Thank you, Mr. Herrick. 02 Mr. Sexton. 03 ---oOo--- 04 CROSS-EXAMINATION OF CONTRA COSTA WATER DISTRICT 05 BY SAN JOAQUIN RIVER EXCHANGE CONTRACTORS 06 BY MR. SEXTON 07 MR. SEXTON: Good morning, my name is Michael Sexton. 08 Mr. Hasencamp, Page 5 of your testimony in the summary, 09 you indicate that the Los Vaqueros Project was built for 10 $450,000. Mr. Birmingham has asked me to get the name of 11 your contractor. So if you see him during the lunch recess, 12 I am sure he would appreciate that very much. 13 MR. HASENCAMP: Tell Mr. Birmingham I appreciate his 14 observations. 15 MR. SEXTON: I will be glad to, sir. 16 MEMBER DEL PIERO: Don't get the name of his 17 accountant. 18 MR. SEXTON: Mr. Hasencamp, in your testimony, I think 19 it was on Page 6, there is a map of the Contra Costa Water 20 District. 21 MR. HASENCAMP: Is that the map? 22 MR. SEXTON: Yes, that is it there. 23 I wonder if the panel could take a quick look behind 24 them at the map that is hanging on the board at the entrance 25 to the hearing room and focus on the statutory Delta area, 3966 01 which is indicated in the color that looks like a Mary Kay 02 consultant's Cadillac. 03 Wouldn't you agree that the Contra Costa Water District 04 is outside of that area, which according to the map, is the 05 statutory Delta? 06 DR. DENTON: No, I would not agree with that. 07 MR. SEXTON: Could you explain to me why you don't 08 agree with that since it appears that the map that is now on 09 the overhead includes lands that is outside of the statutory 10 Delta, at least as depicted on the map on the board? 11 DR. DENTON: It includes lands that are outside, but 12 also includes lands that are inside. The lands that are 13 outside are immediately adjacent to the statutory Delta. 14 MR. SEXTON: Where is there in the definition of 15 statutory Delta that it includes lands that are immediately 16 adjacent to, rather than lands that are only in? 17 DR. DENTON: That is a legal question that perhaps Mr. 18 Maddow can address. 19 MR. SEXTON: Is Mr. Maddow going to testify today? 20 MR. MADDOW: I do not intend to testify, but I would 21 offer an objection on the basis that I think that we may be 22 getting into an area where we are talking about some 23 statutory interpretation that may well be an appropriate 24 subject for argument in our closing statements. 25 If he is going to ask the witnesses to serve as 3967 01 attorneys, that is not the purpose for which they are here, 02 nor are they experts in that regard. 03 C.O. CAFFREY: Let me just say for everybody, that in 04 the past we haven't adhered strictly to requirements that 05 witnesses must be attorneys. If the question borders on a 06 legal opinion, we allow you to give us your legal opinion 07 provided it is not strictly a legal interpretation. On the 08 other hand, if you don't know the answer to the question, 09 you need not answer. All you have to say is, "I do not 10 know." 11 I am not sure where we were. Were we waiting for the 12 answer to a particular question or -- 13 MR. SEXTON: Perhaps I could just ask a clarifying 14 question. I wouldn't want to argue with Mr. Maddow, at 15 least not today. We can reserve that for another time. 16 MEMBER DEL PIERO: Good. 17 MR. SEXTON: My question to the panel is that wouldn't 18 you agree that the area that is within the Contra Costa 19 Water District, at least part of the areas that is within 20 the Contra Costa Water District, is outside of the statutory 21 Delta as that area is depicted on the board in the color of 22 the Mary Kay consultant's Cadillac? 23 DR. DENTON: Certainly. About half of the water that 24 we serve goes to an area that is outside of the statutory 25 Delta and the other half is within. 3968 01 MR. SEXTON: That is all I wanted to know. Thank you. 02 In Dr. Shum's testimony on Page 12, he discusses source 03 control as one of the potential alternatives to accomplish 04 South Delta salinity objectives. 05 MR. MADDOW: Excuse me, Mr. Sexton. Dr. Shum had two 06 exhibits. It is either Exhibit 2 or Exhibit 4. 07 MR. SEXTON: It is Exhibit 2. Thank you. Page 12 of 08 Exhibit 2. 09 Dr. Shum, about three-quarters of the way down the page 10 your testimony by Item Number 1, entitled Source Control, 11 seems to conclude that source control to reduce the salt 12 load would be the most direct and efficient measure to 13 reduce salinity to meet water quality objectives in the 1995 14 Water Quality Control Plan. 15 Could you explain, sir, how you believe that source 16 control, in and of itself, would be the most direct and 17 efficient measure to reduce salinity to meet these 18 objectives? 19 DR. SHUM: It is one of the major factors affecting the 20 South Delta salinity. And as Mr. Hildebrand pointed out, if 21 the Vernalis salinity decreases, the salinity in the entire 22 South Delta would decrease. 23 MR. SEXTON: I guess I don't disagree with salinity is 24 -- or source control is one of the major factors. I was 25 just questioning your conclusion that source control would 3969 01 be the most direct measure to reduce salinity. 02 I guess I follow that up, sir, with wouldn't you agree 03 that an out-of-valley drain would probably be the most 04 direct and efficient measure to reduce salinity to meet 05 these objectives in the Delta? 06 DR. SHUM: Not if you consider redirected impacts. 07 MR. SEXTON: If you would assume for the sake of your 08 answer that there wouldn't be any redirected impacts on 09 Contra Costa, would your answer be different? 10 DR. SHUM: Do I have to answer hypothetical questions? 11 C.O. CAFFREY: Yes, sir. Hypotheticals are most 12 appropriate. Lawyers use them all the time. 13 DR. DENTON: Could you repeat the question. 14 MR. SEXTON: I would like to have Dr. Shum assume for 15 the purposes of his argument, if there was a valley drain 16 which removed agricultural drainage from the Central Valley, 17 that there would be no redirected impacts on Contra Costa. 18 Then the question is, in that circumstance, wouldn't you 19 agree that valley drain would be the most direct measure to 20 reduce salinity to meet the water quality objectives of the 21 Water Quality Control Plan? 22 DR. DENTON: Can I answer that? 23 MR. SEXTON: I am sure you can. It was Dr. Shum's 24 testimony, but feel free. 25 DR. DENTON: That is possibly one way to do it. We 3970 01 would like to see if there are other alternatives to 02 evaluate. Because of those redirected impacts, not 03 necessarily on Contra Costa, but also on others. 04 MR. SEXTON: Now I would like Dr. Shum to answer the 05 question since it was his testimony that assumes the source 06 control is the most direct. 07 DR. SHUM: It would be the same as Dr. Denton's. 08 MR. SEXTON: Thank you. Somehow I knew that. 09 About halfway down the paragraph Numbered 1 on Contra 10 Costa Exhibit 2, Page 12, you mention also, Dr. Shum, that 11 source control could be achieved by source reduction through 12 irrigation and drainage practices and land use management. 13 Do you see that, sir? 14 DR. SHUM: Yes, I do. 15 MR. SEXTON: Were you referring to any particular area 16 when you were referring to source reduction through 17 irrigation and drainage practices and land use management? 18 DR. SHUM: It would be the entire drainage area that 19 discharges into the San Joaquin River. 20 MR. SEXTON: Would that include the South Delta service 21 area? 22 DR. SHUM: Yes. 23 MR. SEXTON: Are you aware that there is a project on 24 the west side of the San Joaquin Valley, including some 25 water districts that have taken some measures to reduce 3971 01 selenium discharges to the San Joaquin River? Are you 02 familiar with that project? 03 DR. SHUM: If you are referring to the Grassland 04 Bypass, I am. 05 MR. SEXTON: You would agree that those districts are, 06 in fact, then, attempting to achieve reduced discharges 07 through source control and irrigation, management practices, 08 wouldn't you? 09 DR. SHUM: Yes. 10 MR. SEXTON: Thank you. 11 On Page 13 of your testimony, Dr. Shum, also CCWD 12 Exhibit 2, at the bottom of the page, you discuss impacts of 13 other State Board DEIR actions that would impact South Delta 14 salinity, and you talk in terms of stored drainage. 15 Do you see that discussion? 16 DR. SHUM: Yes. 17 MR. SEXTON: What were you referring to there, sir? 18 DR. SHUM: This proposal, I am aware of -- actually, 19 could be a number of proposals, which is to time the 20 drainage discharge into the San Joaquin River by storage, so 21 that when there is low water quality or high salinity in the 22 receiving water in San Joaquin, the dischargers would store 23 those drainages and wait until the water quality improves 24 before discharging. That would help to increase the 25 frequency till the Vernalis water quality objective is met. 3972 01 MR. SEXTON: Would it be your testimony, sir, for 02 example, the area that makes up the Grassland Bypass Project 03 service area, that if the drainage water was stored and then 04 released to take advantage of the assimilative capacity of 05 Merced River inflows, that that could be beneficial? 06 DR. SHUM: I think it is a fairly complex problem, that 07 is, that I would hesitate to give a yes-no answer. It 08 depends, among other things, the total salt load that goes 09 into the Delta. And for the Contra Costa Water District's 10 point of view, it also depends on the timing on how much 11 water we are diverting at the time. 12 And that at the same time it depends on the operation 13 of the barriers. As I showed in Exhibit 2, the barriers 14 would increase the salt load from San Joaquin inflow that 15 could get to our intakes. So all this needs to be taken 16 into account. 17 MR. SEXTON: You would agree, wouldn't you, sir, that 18 storage of drainage water within the service area for a 19 period of time is not without risk to the lands within that 20 service area? In other words, water quality risks that 21 would be attendant to those lands by maintaining drainage 22 for a period of time? 23 DR. SHUM: My knowledge on farm operations, especially 24 on irrigation and drainage, rather superficial. I will take 25 your word. 3973 01 MR. SEXTON: Thank you for that. 02 Mr. Hasencamp, in your testimony you talked about water 03 quality being extremely important to Contra Costa Water 04 District. 05 Do you remember that, sir? 06 MR. HASENCAMP: Yes. 07 MR. SEXTON: Then for purposes of water quality your 08 testimony seemed to focus on salinity and in particular, I 09 guess, chlorides. 10 Do you remember that, sir? 11 MR. HASENCAMP: Yes. 12 MR. SEXTON: Mr. Birmingham has trained you very well, 13 as the short concise answers are very good. 14 MR. HASENCAMP: No. No, that is not true. 15 MR. SEXTON: You talked about your Los Vaqueros Project 16 in terms of using water for blending, potentials for 17 increases in salinity. As I understood it, you were 18 concerned about an increase in chlorides that could be as 19 small as a 5 milligram per liter increase; is that right, 20 sir? 21 MR. HASENCAMP: Yes. 22 MR. SEXTON: Then Ms. Forster asked a question of Dr. 23 Shum to explain the measure of, like, a chloride measurement 24 of 65 to TDS. And, I think, after the break Dr. Shum 25 corrected that 65, and I don't recall if it was milligrams 3974 01 in chloride -- I think that is what it was. 02 DR. DENTON: Milligrams per liter. 03 MR. SEXTON: Milligrams per liter calculates, for 04 those who didn't go to Stanford, to a 200 to 250 TDS 05 salinity. Is that correct? 06 MR. HASENCAMP: The record speaks for itself. 07 MR. SEXTON: I am not asking for the record. I am 08 asking if you recall what the discussion was during the 09 testimony we had before the break. 10 Actually, it doesn't have to be you answering, sir. 11 The entire panel can answer. I am just trying to lay a 12 foundation for a next question here. 13 MR. HASENCAMP: Yes. 14 MR. SEXTON: Is salinity, salts, if you will, a primary 15 water quality standard established by Department of Health 16 Services for drinking water purposes? 17 DR. DENTON: It's -- there are several mentions of it 18 as a maximum contaminant level. 19 MR. SEXTON: What is the maximum level that would be 20 acceptable for TDS, a measurement of TDS in drinking water 21 supplies? 22 DR. DENTON: We have a conversion problem. There is 23 one with chloride that refers to 250 and 500 milligrams per 24 liter chloride. 25 MR. SEXTON: My understanding, tell me if I am 3975 01 incorrect, which I am sure you will anyway, is that there is 02 a range that is acceptable for drinking water that goes 03 somewhere between 200 and runs all the way up to 900 TDS for 04 drinking water standards. 05 Have you heard of that? 06 DR. SHUM: No. 07 MR. SEXTON: You haven't heard of that? 08 DR. SHUM: No. 09 DR. DENTON: This is with respect to salinity itself. 10 As I mentioned earlier, there is this concern that if you 11 have salinity or bromide in the water, which is part of the 12 salinity, and organics, and you treat the drinking water, 13 then you get other things that are of concern to public 14 health. So, it is not just the salinity, the effect of 15 salinity on people's health, it is the impact of the 16 disinfectant by-products that would result from high 17 salinity, also, that are of concern to our District. 18 MR. SEXTON: So, Contra Costa, then, would want no 19 higher than what level of TDS in its received water supply? 20 DR. DENTON: This a wish or a -- 21 MR. SEXTON: Well, since we are among friends, why 22 don't we go ahead and throw it out as a wish. 23 DR. DENTON: There's been a lot of discussion with this 24 urban agency expert panel. Maybe Dr. Shum will do a 25 conversion for us. 3976 01 DR. SHUM: In the Contra Costa Water District Board of 02 Directors has adopted a source water quality objective which 03 has a bromide objective of 15 micrograms per liter. And let 04 me qualify that. That is our long-term goal. And we 05 realize that it's not easily achievable or is not yet at 06 this point practical to accomplish this kind of water 07 quality in a source water. 08 But what we headed in the direction is, given the 09 increasingly stringent water quality regulations, we want to 10 be able to have a target to shoot for for our -- to assure 11 that we can meet our future regulations, and this is the 12 objective we have at this time. 13 But at the same time, we are well aware of the 14 environmental impacts that would result as a consequence of 15 getting this kind of water quality, for example, from an 16 isolated facility. So, the District's position is balance 17 all these different concerns. The bromide objective of 50 18 micrograms per liter would correspond to a chloride of 19 around 20. 20 DR. DENTON: Which would be about 150 TDS? 21 DR. SHUM: Or even lower. 22 If you are talking about a wish list that does not have 23 a reality check or cost of how to accomplish it, that would 24 be the water quality goal. 25 MR. SEXTON: So, your goal is somewhere around 150 TDS 3977 01 or lower, as I understand? 02 DR. DENTON: Or better. 03 MR. SEXTON: Or better, excuse me. 04 Dr. Shum, in response to a question from South Delta's 05 counsel you were talking about where chlorides come from. I 06 think you mentioned seawater intrusion, San Joaquin River, 07 Sacramento River, in-Delta discharges. 08 Was there another one I missed? 09 DR. SHUM: Also chloride from east side streams, like 10 Mokelumne. But those are rather minor. 11 DR. DENTON: And also municipal discharges, urban 12 wastewater discharges. 13 MR. SEXTON: In order to achieve this wish list water 14 quality standard for Contra Costa's received water, what 15 kind of things would have to be done? 16 DR. DENTON: Well, I think Dr. Shum just mentioned. 17 These are the sort of things that CalFed is struggling with 18 at the moment and what sort of actions they would need to 19 take, and what sort of facilities and storage and other 20 things that they might need to do that. 21 But, as we said, that is something that we may need to 22 deal with in the future or go to very advanced treatment to 23 offset the need to go to that lower salinity. But that is 24 something that we need to have out there as a goal. 25 MR. SEXTON: So, you are not suggesting that the entire 3978 01 San Joaquin River flow be dedicated to blending for purposes 02 of South Delta or Contra Costa's water quality, are you? 03 DR. DENTON: For blending? 04 MR. SEXTON: In other words, nobody takes any water off 05 the San Joaquin River; it all comes down the river in 06 natural form in order to blend salts that may be natural to 07 that water source, so that you can get higher quality water? 08 DR. DENTON: What we are suggesting is a way to improve 09 water quality for all people in the Delta, and taking water 10 from the Delta would be to improve the water quality of the 11 water coming down the San Joaquin. We are not sort of 12 taking it beyond that. 13 In response to your original question, on the direct 14 impacts, that that would be a way of directly improving 15 water quality in the South Delta and at our intakes would be 16 to improve the water quality on the San Joaquin. We are not 17 specifying which reservoirs it would come from or which 18 actions would have to be taken. 19 MR. SEXTON: Do you have any recommendations for the 20 Board on what actions should be taken in order to improve 21 the San Joaquin water quality? 22 DR. DENTON: I think there is a number in Dr. Shum's 23 testimony about unfound practices and things like that. 24 MR. SEXTON: We already went through those. I think 25 Dr. Shum agreed that there are some on-farm practices that 3979 01 are already taking place. I guess I am questioning whether 02 there is something more in the view of Contra Costa that 03 needs to be done. 04 DR. DENTON: You refer to the Grassland Bypass Channel 05 Project. There are a lot of activities ongoing there. 06 Remember, there is another three years to go, and the idea 07 is to keep reducing the salinity down, the salinity load 08 down from the existing values at the moment. Those 09 practices will continue to be going on, and improvements 10 will be made so that some of the exceedances that have 11 occurred in the first two years, hopefully, won't occur 12 again as the selenium load will be reduced. 13 So, we are looking forward to improvements in that area 14 as well as some of the other things that have been mentioned 15 in Dr. Shum's testimony. 16 MR. SEXTON: Before Dr. Shum follows up on that, is it 17 the view of Contra Costa that the improvements that you 18 talking about, Mr. Denton, could be made without essentially 19 drying up irrigated agricultural land in a substantial 20 portion of the west side of the San Joaquin Valley? 21 DR. DENTON: I think when the San Luis Delta-Mendota 22 Water Authority joined with the Bureau and others in signing 23 onto the use agreement for the Grassland Bypass, they made a 24 commitment that they would take actions to meet those 25 selenium goals. 3980 01 Again, our expertise is not in agricultural practices, 02 so we can't really say whether we think what they are 03 planning on doing is good or bad. But there was that 04 commitment to do that. We are looking forward to seeing 05 that commitment follow through. 06 MR. SEXTON: It's true, isn't it sir, that Contra Costa 07 has an ongoing lawsuit against the proponents of that 08 Grassland Bypass Use Agreement? 09 DR. DENTON: Contra Costa Water District doesn't. 10 Against the Grassland Bypass? 11 MR. SEXTON: Yes. Contra Costa Country? Contra Costa 12 Water District? 13 DR. DENTON: Different agency. Contra Costa County, 14 City of Antioch and Pittsburg and maybe Delta Diablo 15 Sanitary District, I think, are the four parties to that. 16 Contra Costa Water District was asked to sign onto 17 that. We did not on the basis we wanted to better track the 18 project and see. If there were benefits, we wanted to see 19 those benefits realized. We didn't want to stand in the 20 way. 21 MR. SEXTON: So Contra Costa Water District supports, 22 then, the ongoing bypass project? 23 DR. DENTON: Definitely. 24 MR. SEXTON: Thank you. 25 I think that is all I have. Thank you. 3981 01 C.O. CAFFREY: Thank you, Mr. Sexton. 02 Mr. Del Piero has some questions of this panel. And we 03 are going to have him ask those now because -- I am sorry. 04 Put the mike on. 05 Mr. Del Piero has some questions. He may not be able 06 to join us tomorrow, so we will go to his questions for this 07 panel now and then break for lunch. 08 Mr. Del Piero. 09 MEMBER DEL PIERO: Thank you very much. 10 Dr. Shum, I have some hypotheticals for you. 11 C.O. CAFFREY: And he's a lawyer, so be careful. 12 DR. SHUM: Coming from him, I will have to answer. 13 ---oOo--- 14 CROSS-EXAMINATION OF CONTRA COSTA WATER DISTRICT 15 BY BOARD MEMBERS 16 MEMBER DEL PIERO: Your testimony on Page 12, and it 17 was referred to, I believe, by Mr. Sexton early in his 18 questions. You've got a statement in there says: 19 Source control to reduce salt load would be 20 the most direct and efficient measure to 21 reduce salinity and meet water quality 22 objectives in the 1995 WQCP. (Reading.) 23 DR. SHUM: Yes. 24 MEMBER DEL PIERO: You continue to confirm that 25 position. You agree? 3982 01 DR. SHUM: In that it is the most direct measure. 02 MEMBER DEL PIERO: Let's say we had a perfect world. 03 Assuming the continuance of agricultural in the San Joaquin 04 Valley and assuming the construction of a drain that would 05 preclude or that would eliminate the necessity of the 06 discharges of agricultural drainage into the San Joaquin 07 River. 08 We are not talking about where the drain ends for the 09 moment, not talking about where the drain ends for the 10 moment. Would a drain significantly advance what you 11 characterize as the most direct and efficient measure by at 12 least perhaps not source control but diverting the discharge 13 from the river itself? 14 DR. SHUM: I would believe so. 15 MEMBER DEL PIERO: Assuming -- given the reality of the 16 Water Code, some of which I had a hand in writing when I was 17 county supervisor, that you can't get an out-of-basin 18 discharge for the San Joaquin drains since it is prohibited 19 in the Monterey Bay. 1984, check it. You will see. 20 C.O. CAFFREY: No fair testifying. 21 MR. BIRMINGHAM: I am very familiar with it. 22 MEMBER DEL PIERO: I know you are. 23 Assuming that it can't go into the Delta because it 24 will cause significant problems for your intake and assuming 25 it can't go into San Francisco Bay because it will 3983 01 significantly increase the selenium load, and assuming it 02 can't go into the Monterey Bay National Marine Sanctuary 03 that now extends from Marin County down to San Luis Obispo 04 County, given those assumptions, is it realistically 05 possible, rather than having a drain with a terminus that 06 discharges into a water body, is it possible to have a drain 07 that has a terminus that discharges into a treatment plant 08 that would then produce a potable or at least usable quality 09 of water after salt has been removed? 10 DR. SHUM: I don't think I am familiar enough with the 11 issue, but my understanding -- 12 MEMBER DEL PIERO: Not the issue, the technology. 13 DR. SHUM: My understanding is the volume of flow is 14 pretty high, and to really take out the salt and selenium, 15 it's probably beyond current technology. 16 MEMBER DEL PIERO: In the drain or in the river? 17 Assuming a drain, not the river. Assuming a drain, the 18 volume of flow is what or would be what, even if peak 19 periods? 20 DR. SHUM: I can't recall right away, but I believe it 21 is a pretty large number. 22 MEMBER DEL PIERO: Do you know? 23 DR. DENTON: I think that question would be best asked 24 of Westlands Water District or Phil Johnston, someone like 25 that. 3984 01 MEMBER DEL PIERO: Okay. Then let's go to a different 02 issue or at least a different aspect of this issue. 03 Are you aware -- are you aware of the level of salinity 04 in TDS that is in the drain water absent dilution by San 05 Joaquin water or Merced water, or for that matter any of the 06 other San Joaquin tributaries? 07 DR. SHUM: No, I am not. 08 MEMBER DEL PIERO: Are you aware of -- then we aren't 09 going to go there because if you don't know the flows and 10 you don't know the dilution factors, we will ask someone 11 else that question during the course of this. 12 Thank you. 13 C.O. CAFFREY: Thank you, Mr. Del Piero. 14 MR. BIRMINGHAM: Mr. Caffrey. 15 C.O. CAFFREY: Mr. Birmingham. 16 MR. BIRMINGHAM: This is an issue, as the Board knows, 17 that is of great importance to Westlands Water Direct. 18 UNIDENTIFIED VOICE: Speak close to the mike. 19 MR. BIRMINGHAM: This is an issue that is of great 20 concern to Westlands Water District. We currently had 21 intended on calling Mr. Johnston as a rebuttal witness in 22 connection with this phase of the proceeding. 23 If Mr. Del Piero would like, Mr. Johnston can very 24 easily be prepared to answer questions that Mr. Del Piero 25 has posed to this panel, and would be happy to do that. 3985 01 C.O. CAFFREY: You mean at this moment, right now? 02 MR. BIRMINGHAM: I think he can answer most of the 03 questions at this moment, right now. But what I would 04 suggest is that we put him on -- 05 MEMBER DEL PIERO: I am just not going to be here 06 tomorrow. 07 MR. BIRMINGHAM: It will be next week, I am sure. 08 C.O. CAFFREY: Rebuttal is taken after we finish the 09 entire phase. It will be several days from now. 10 MEMBER DEL PIERO: Mr. Chairman, you know what my 11 schedule is starting to look like in the next three weeks. 12 We couldn't figure out a time when all of us could be here 13 after this week. So if it wouldn't be too inconvenient, I 14 would really like to get those answers on the record now. I 15 am going to be in Boston five days. I am in Southern 16 California for three days. I think I am here other than 17 between now and the end of October, I think I am here, like, 18 two days for the balance of these hearings. 19 C.O. CAFFREY: Ms. Leidigh. 20 MS. LEIDIGH: I was just going to point out the next 21 hearing day after tomorrow is October 13th, and that is 22 sometime away, and I don't know whether you would be 23 available then or the following day. 24 MEMBER DEL PIERO: ALL I know, I am living out of a 25 suitcase for the next 45 days. So, if you don't mind, it 3986 01 will take three minutes, Mr. Chairman, and it will be in. 02 MR. BIRMINGHAM: Are you going to here after lunch, Mr. 03 Del Piero? 04 MEMBER DEL PIERO: I will. 05 MR. BIRMINGHAM: Maybe we can put Mr. Johnston on 06 immediately after lunch. 07 C.O. CAFFREY: We obviously want to accommodate Mr. Del 08 Piero's needs as we did for Mr. Brown the other day. Here 09 is what we will have to do, then: We will have to bring 10 your panel on immediately after lunch for just a few 11 minutes. Hopefully, it will take -- 12 Just so that you're available to hear from Mr. 13 Johnston, and then we will go back to Mr. Herrick's case in 14 chief. 15 So for whatever amount of time that takes, we know that 16 Mr. Del Piero will be very crisp in his questioning and Mr. 17 Johnston will be equally as crisp in his answering. 18 MEMBER DEL PIERO: When Dr. Shum indicated he didn't 19 have the information, there was no reason to continue. I 20 appreciate that very much, Mr. Chairman, and I will be back 21 approximately at -- 22 C.O. CAFFREY: We'll come back at 1:30. 23 Thank you. 24 (Luncheon break.) 25 ---oOo-- 3987 01 AFTERNOON SESSION 02 ---oOo--- 03 C.O. CAFFREY: We are back. Good afternoon. 04 By way of announcement with regard to what we had 05 discussed just before the lunch break, I had a discussion 06 during the lunch hour with Mr. Del Piero. On a procedural 07 basis we are going to postpone the inquiry that Mr. Del 08 Piero had asked for and incorporate it into the record at a 09 later date in the proceeding. We will be doing that. 10 Mr. Del Piero. 11 MEMBER DEL PIERO: I regret that there is some concern 12 about a procedural aspect. Even though I will be precluded 13 from asking those questions, I will do my very best to write 14 the questions and then attempt to avail myself of the record 15 after the fact. 16 C.O. CAFFREY: Thank you, Mr. Del Piero. 17 We will now go back to the South Delta case in chief, 18 and we were in the process of cross-examining Mr. 19 Hildebrand, and we have remaining cross-examiners as 20 follows. In the following order, I have Mr. O'Laughlin, 21 Ms. Zolezzi, Mr. Birmingham and Mr. Turner. 22 MR. O'LAUGHLIN: Chairman Caffrey. 23 C.O. CAFFREY: Mr. O'Laughlin. 24 MR. O'LAUGHLIN: I talked to Ms. Zolezzi, and she would 25 like to be first. She won't definitely be here tomorrow and 3988 01 she said she has a short amount of time and would like to go 02 first. I will follow up right behind her, if you don't 03 mind. 04 C.O. CAFFREY: That is fine. Thank you. 05 Ms. Zolezzi, then, you want to proceed. 06 ---oOo--- 07 CROSS-EXAMINATION OF SOUTH DELTA WATER AGENCY 08 BY STOCKTON EAST WATER DISTRICT 09 BY MS. ZOLEZZI 10 MS. ZOLEZZI: Thank you. Jeanne Zolezzi representing 11 Stockton East Water District. I only have a couple of 12 questions for you, Mr. Hildebrand. 13 You testified yesterday that the root cause of the 14 salinity problem was generally the operation of the CVP; is 15 that correct? 16 MR. HILDEBRAND: That is correct. 17 MS. ZOLEZZI: In your opinion, and you don't need to 18 elaborate on these, perhaps just a yes or no or a number or 19 a brief summary, are there other available options to reduce 20 the salinity problem that you described other than provision 21 of dilution flows from New Melones Reservoir? 22 MR. HILDEBRAND: Yes. 23 MS. ZOLEZZI: Do you believe that the source control 24 that was discussed earlier this morning, as well as by you 25 in your testimony and other on-farm practices, are a better 3989 01 solution to the salinity problem than releases of dilution 02 flow from New Melones? 03 MR. HILDEBRAND: I am not sure I fully understand your 04 question. In the long term, yes, I think they are 05 definitely better. In the short term, they may not be 06 implementable immediately and, therefore, the release from 07 New Melones would have to continue until such time as the 08 other measures are adopted. 09 MS. ZOLEZZI: But putting aside considerations of 10 timing and even, to a certain extent, feasibility from a 11 perspective of equity, perhaps, I don't want to get into 12 legal conclusions, but let's leave it at equity, are the 13 other alternatives than dilution in your view, a better 14 solution on the long term? 15 MR. HILDEBRAND: On the long term, yes. I am referring 16 to dilution from New Melones in lieu of the dilution that we 17 previously had from Friant. 18 MS. ZOLEZZI: Thank you. 19 In light of the fact that you mentioned there are other 20 options available to the State Board to address the problem 21 of salinity, would you agree that -- well, excuse me, let me 22 go back a bit. 23 Again, putting aside issues of timing and building on 24 the question that you just answered, that utilizing other 25 alternatives than the use of dilution flows from New Melones 3990 01 are preferable alternatives, would it be reasonable to use 02 dilution flows of water that are available for other 03 consumptive uses when there are other ways to address the 04 salinity problem? 05 MR. HILDEBRAND: That is a long question. Let's go 06 back over that a little bit and break it down. 07 MS. ZOLEZZI: What I am trying to get at, you 08 testified, or at least in your written testimony, that 09 dilution flows from New Melones is not an unreasonable use 10 of water. What I am trying to get at is, how you reached 11 that conclusion, given the fact that your testimony is that 12 there are other alternatives. 13 If there are other alternatives, is it not unreasonable 14 to use freshwater to dilute pollution? 15 MR. HILDEBRAND: Freshwater will have to be used to 16 dilute the salt load coming out of the west side unless 17 there is a valley drain to take that out separately. 18 The question, then, is what should the source be of 19 those dilution flows. And the availability of dilution 20 flows was enormously diminished by the Friant project and 21 the Stanislaus, which is a smaller tributary than the main 22 stem. The San Joaquin can't be expected to pick that up 23 entirely. But until such time as other control of the 24 salinity can be achieved, the control of the salt load 25 entering the river can be achieved, the New Melones will 3991 01 have to substitute for the dilution we previously had out of 02 Friant to the extent that it can. 03 MS. ZOLEZZI: So, is it a summary of your testimony 04 that releases from New Melones should be used as a last 05 resort to address the salinity problem or that they are the 06 least preferred alternative? 07 MR. HILDEBRAND: I wouldn't phrase it that way, no. 08 MS. ZOLEZZI: Would you prefer that other freshwater 09 sources than New Melones be used for dilution of pollution 10 if dilution is necessary? 11 MR. HILDEBRAND: I would prefer the most reasonable use 12 of the available water supply. To the extent that can be 13 done by recirculation or by substituting purchases from 14 contractors in lieu of purchases on the San Joaquin, yes, 15 that would be preferable. 16 MS. ZOLEZZI: Your testimony yesterday also encouraged 17 the Board to impose a term in the permit for New Melones 18 that would require all the natural flow of the Stanislaus 19 River to be released if the water quality objectives are not 20 being met; is that correct? 21 MR. HILDEBRAND: Essentially. 22 MS. ZOLEZZI: Do you understand that such a term would 23 deprive watershed protectionaries to which they are entitled? 24 MR. HILDEBRAND: I understand that the areas of origin 25 will get more water only if we can reduce the burden on New 3992 01 Melones. I don't concede that the area of origin has 02 priority over meeting the permit condition of the salinity 03 standard. 04 MS. ZOLEZZI: Could you elaborate on your last 05 statement, that the area of origin does not have priority 06 over meeting the salinity standard? 07 MR. HILDEBRAND: What's actually happening now is that 08 the Bureau, as testified by Lowell Ploss in this proceeding, 09 is getting precedence to fish flows over water quality. I 10 don't think that the fish flow for purposes beyond the 11 in-stream needs in the Stanislaus should be done at the 12 expense of either the area of origin or the water quality 13 maintenance. 14 MS. ZOLEZZI: Thank you. 15 Last question: In your opinion, were there other 16 alternative methods to address the water quality, the 17 salinity standards that were not adequately addressed in the 18 State Water Resource Control Board Draft EIR? 19 MR. HILDEBRAND: Are you referring to the alternatives 20 that are being examined in this proceeding? 21 MS. ZOLEZZI: Of the alternatives that were included in 22 the Draft EIR, do you believe it included all the reasonable 23 alternatives that should have been looked at? 24 MR. HILDEBRAND: No. And as I said, we plan to propose 25 an alternative somewhat different from the ones that have 3993 01 been examined in Phase II-A. 02 MS. ZOLEZZI: Thank you. That is all questions I have. 03 C.O. CAFFREY: Thank you, Ms. Zolezzi. 04 Mr. O'Laughlin. 05 Good afternoon, sir. Welcome back. 06 ---oOo--- 07 CROSS-EXAMINATION OF SOUTH DELTA WATER AGENCY 08 BY SAN JOAQUIN RIVER GROUP 09 BY MR. O'LAUGHLIN 10 MR. O'LAUGHLIN: Afternoon, Mr. Chairman, Board 11 Members, Mr. Hildebrand. Tim O'Laughlin representing the 12 San Joaquin River Group. 13 Are you aware, Mr. Hildebrand, that the 1995 Water 14 Quality Control Plan has a spring pulse flow component? 15 MR. HILDEBRAND: Yes. 16 MR. O'LAUGHLIN: How does South Delta Water Agency 17 envision the State Water Resources Control Board issuing an 18 order to meet the pulse flow? 19 MR. HILDEBRAND: I am not sure I understand the 20 question. 21 MR. O'LAUGHLIN: You propose various permit terms in 22 regards to meeting channel depletion downstream for South 23 Delta Water Agency. What I would like to know is how do you 24 envision the State Board implementing the spring pulse flow 25 requirement of the 1995 Water Quality Control Plan on the 3994 01 San Joaquin River? 02 MR. HILDEBRAND: I think they did and gave that in my 03 written testimony and also in discussions earlier in this 04 proceeding. 05 MR. O'LAUGHLIN: And how is that? 06 MR. HILDEBRAND: You want me to go all the way through 07 it, what our alternative proposal is? 08 MR. O'LAUGHLIN: Would it be your statement, then, that 09 the alternative proposal of South Delta Water Agency in 10 regards to recirculation is the mechanism by which the State 11 Water Resources Control Board should implement the spring 12 pulse flow? 13 MR. HILDEBRAND: That and the permit conditions that 14 are in my written testimony. 15 MR. O'LAUGHLIN: What requirements, if anything, during 16 your recirculation plan would you put on the upstream permit 17 or license holders on the Merced, Tuolumne or Stanislaus 18 River in order to meet your recirculation plan during the 19 spring pulse flow? 20 MR. HILDEBRAND: That also included my written 21 testimony. 22 MR. O'LAUGHLIN: Okay. What is that? 23 MR. HILDEBRAND: You want me to read it? 24 MR. O'LAUGHLIN: That would be fine if you would like. 25 MR. HILDEBRAND: All projects which divert water to 3995 01 storage upstream of Vernalis on the San Joaquin River and 02 its tributaries to be amended to include the following 03 condition: 04 At any time the flow at Vernalis is less than the 05 channel depletion requirements of South Delta, all natural 06 flows shall be passed through or by the permittee. 07 MR. O'LAUGHLIN: What I am focusing on specifically is 08 the sprung pulse flow in the April/May time period as 09 required in the 1995 Water Quality Control Plan. 10 If South Delta is not in channel depletion at that 11 time, how do you envision the State Board issuing an order 12 to the upstream licensees and permittees? 13 MR. HILDEBRAND: The problem isn't during the pulse 14 flow. The problem is if you shift summer flow to pulse 15 flow, we then don't meet this condition in the summer. 16 MR. O'LAUGHLIN: That is what I want you to focus on. 17 Let's go back. What I want you to focus on is the April/May 18 pulse flow period. What does South Delta Water Agency 19 envision as an implementing mechanism on the Merced, 20 Tuolumne and Stanislaus River for their permit and licensee 21 holders to implement the spring pulse flow? 22 MR. HILDEBRAND: Our position is that is not the way to 23 arrive at this pulse flow, that the tributaries, including 24 th Stanislaus, the Tuolumme and Merced, should not be 25 obligated to provide that flow. 3996 01 MR. O'LAUGHLIN: During the April/May pulse flow 02 period, then, South Delta Water Agency's proposal is that 03 none of the Merced, Tuolumne or Stanislaus would make water 04 available for the pulse flow? 05 MR. HILDEBRAND: Not at the expense of summer flow. 06 MR. O'LAUGHLIN: So, then, it is just a question of 07 moving water around for reoperation, correct? 08 MR. HILDEBRAND: What do you mean by "moving water 09 around"? 10 MR. O'LAUGHLIN: What I am confused about here is on 11 Page 2 of your testimony you say that -- the third 12 paragraph, the sale of water is merely a reoperation. Isn't 13 it true that any requirement to meet pulse flow water in 14 April would be a reoperation of water? 15 MR. HILDEBRAND: You wouldn't have to be, but the 16 purchases are being made do not require the sellers reducing 17 their consumptive use. In the absence of that, it becomes 18 merely a reallocation in time. 19 MR. O'LAUGHLIN: Let's go on to the consumptive use. 20 If the permittees and licensee holders on the Merced, 21 Stanislaus and Tuolumne River continue to use their 22 consumptive uses during the summer months, won't the return 23 flows remain the same if there is no reduction in 24 consumptive uses? 25 MR. HILDEBRAND: There is a limited total amount of 3997 01 water available in the watershed in most years. Therefore, 02 if you increase flow at a time, you have to decrease it in 03 another time. Now, the time may be distorted; it may be the 04 following year that you have less flow rather than the 05 current year. But at some point in time it is going to 06 occur to be less flow and you'd logically expect that that 07 would occur in the summer. 08 MR. O'LAUGHLIN: Logically, is according to you. You 09 have done no analysis, is this correct, of any district's 10 operation for the summer months as to whether or not the 11 consumptive use has or has not declined? 12 MR. HILDEBRAND: In the testimony that was submitted by 13 your group, there was no indication that there would be any 14 indication of consumptive use. 15 MR. O'LAUGHLIN: No reduction in consumptive use. If 16 there is no reduction in consumptive use during the summer 17 months, the return flows that you are requesting remain in 18 the rivers would continue to be there; is that correct? 19 MR. HILDEBRAND: Not necessarily. Because you could 20 have the same consumptive use, but have a different 21 application efficiency, and then use that change to shift 22 the reduced return flows in the summer and shift them over 23 the spring. 24 MR. O'LAUGHLIN: Have you looked -- in the last several 25 years there have been transfers to the Bureau for spring 3998 01 pulse flows; is that correct? 02 MR. HILDEBRAND: Yes. 03 MR. O'LAUGHLIN: Have you looked at the water use 04 within the districts that have supplied water to the Bureau 05 for those spring pulse flows and see if, in fact, their 06 irrigation practices have changed during the summer months? 07 MR. HILDEBRAND: The years in question here are years 08 that turned out to be very wet years. So that the 09 reservoirs could be refilled with -- would otherwise be 10 spills. That is not something you can predict at the time 11 you make the shift. You don't know whether it is going to 12 be a wet year or not. If it turns out to be a couple dry 13 years, then we are going to lose summer flow. 14 MR. O'LAUGHLIN: What I am asking, in the last several 15 years have you looked at actual irrigation practices within 16 the districts that have supplied water to the Bureau to 17 determine whether or not their irrigation practices have 18 changed? 19 MR. HILDEBRAND: The group has not submitted any 20 information to indicate that they made any changes to reduce 21 consumptive use. 22 MR. O'LAUGHLIN: That would imply to irrigation 23 efficiencies, as well; is that correct? 24 MR. HILDEBRAND: That's correct. 25 MR. O'LAUGHLIN: So, if your irrigation efficiencies 3999 01 are the same and consumptive use is the same, then the 02 amount of water returning to the river would be the same; is 03 that correct? 04 MR. HILDEBRAND: If that's the case, but that can't be 05 the case. If you release water to increase spring flow, 06 which otherwise ultimately come down the rivers, at some 07 point in time it is going to decrease the summer flow. 08 MR. O'LAUGHLIN: Have you done any modeling to look at 09 whether or not the shifting of water would actually be made 10 up by refill in the above normal and wet years during the 11 fall, winter and early spring? 12 MR. HILDEBRAND: Don't need a model. All you have to 13 do is look at water balance, mass balance. 14 MR. O'LAUGHLIN: That was Dr. Orlob; is that correct? 15 MR. HILDEBRAND: Yes. 16 MR. O'LAUGHLIN: Oakdale Irrigation District did a 17 transfer to the United States Bureau of Reclamation in which 18 it agreed as part of the transfer to continue to divert and 19 use the historic summer diversions over an average of ten 20 years. 21 Did South Delta Water Agency object to that transfer? 22 MR. HILDEBRAND: Will you repeat that. 23 MR. O'LAUGHLIN: Oakdale did a transfer to the United 24 States Bureau of Reclamation in which it agreed to continue 25 to divert the historic summer diversions. 4000 01 Are you familiar with that transfer? 02 MR. HILDEBRAND: Yes, but I never heard this ten-year 03 thing you just referred to. 04 MR. O'LAUGHLIN: In fact, South Delta Water Agency sat 05 down and negotiated with the Oakdale Irrigation District and 06 the Bureau a term to continue to divert historic summer 07 diversions; is that correct? 08 MR. HILDEBRAND: We endeavored to do that, but I don't 09 recall if there was an agreement. 10 MR. O'LAUGHLIN: Are you claiming that during the 11 summer months, when the water is made available for the 12 spring pulse flow, that the in-stream minimum flow 13 requirements on the Stanislaus River and on the Tuolumne 14 River will not be met? 15 MR. HILDEBRAND: Say that again. 16 MR. O'LAUGHLIN: Are you claiming that as a result of 17 meeting its spring pulse flow requirements that the agencies 18 on the Tuolumne and Stanislaus Rivers will not meet the 19 minimum in-stream flow requirements during the summer months 20 for those respective rivers? 21 MR. HERRICK: I'd just like to object and ask that the 22 question be clarified as to what you are referring to when 23 you say "in-stream flow requirements" on those tributaries. 24 MR. O'LAUGHLIN: Well, we'll do the Tuolumne first. 25 The flow requirements for the Tuolumne River? 4001 01 MR. HILDEBRAND: No. In all of our analyses we assume 02 that the FERC requirements would be met. 03 MR. O'LAUGHLIN: No matter what happens with when water 04 is made available for spring pulse flow, the minimum 05 in-stream flow requirements would remain the same on the 06 Tuolumne River during the summer months; is that correct? 07 MR. HILDEBRAND: Yes. But that doesn't necessarily 08 transfer into an adequate flow at Vernalis. 09 MR. O'LAUGHLIN: Would the same be true for the 10 Stanislaus River in regards to meeting minimum in-stream 11 flow requirements as set forth by the permit conditions for 12 New Melones? 13 MR. HILDEBRAND: No. Because the problem there is that 14 the Bureau does not budget water to meet the water quality 15 standard at New Melones -- at Vernalis. 16 MR. O'LAUGHLIN: Focusing on fish, though. The minimum 17 in-stream flow requirements on the Stanislaus River as set 18 forth by the permit conditions for New Melones would be met 19 during the summer months; is that correct? 20 MR. HILDEBRAND: Which permit conditions are you 21 referring to? The original ones or the ones according to 22 the agreement made in '87 with the Fish and Game or 23 something else? 24 MR. O'LAUGHLIN: Both the original permit conditions in 25 regards to the California Department of Fish and Game as 4002 01 well as the follow-up agreement with Fish and Game. 02 MR. HILDEBRAND: What follow-up agreement are you 03 talking about there? 04 MR. O'LAUGHLIN: The 98,000 to 305. 05 MR. HILDEBRAND: When the Bureau made that change in 06 the original commitment, which was only to provide 98 3 they 07 didn't say where the water was going to come from. So, they 08 sort of unilaterally talking to the Fish and Game made an 09 agreement to have those larger releases that obviously was 10 going to reduce the amount of water available for other 11 purposes, and they never notified anybody, that I am aware 12 of, as to where the water would come from to provide that 13 additional flow, which is quite substantial. And in 14 practice it seems to have resulted in less water available 15 for the eastern part of the county and less water available 16 to maintain water quality. 17 MR. O'LAUGHLIN: How many diversions are there within 18 South Delta Water Agency? 19 MR. HILDEBRAND: I couldn't tell you, except it is a 20 large number and scattered over 75 miles of channel. 21 MR. O'LAUGHLIN: How many of those diversions are 22 screened? 23 MR. HILDEBRAND: How many are what, screened? 24 MR. O'LAUGHLIN: Yes. 25 MR. HILDEBRAND: Very few. But the tests that were 4003 01 made by Fish and Game indicated that these submerged turbine 02 pumps just don't entrain fish to amount to anything, not 03 enough to keep one heron alive. They did not entrain in 04 these tests any endangered species. And the -- our belief 05 is, since we don't see fish to any significant degree in our 06 irrigation water, that what happens is that these turbine 07 pumps, which necessarily in the shallow channels are down 08 very close to the bottom, that the vibration or noise of the 09 pump causes the fish to take evasive action and not become 10 entrained. A couple exceptions to that are the West Side 11 Irrigation District, which is not screened, and the Banta 12 Carbona District, which is not screened. And a large sum of 13 money is now being spent to screen the Banta Carbona 14 District. 15 MR. O'LAUGHLIN: Did South Delta Water Agency or any 16 of its member agencies have any conditions on any of its 17 water rights to bypass flow during the pulse flow period to 18 allow salmon smolts to move out from the San Joaquin River 19 and through the Bay-Delta? 20 MR. HILDEBRAND: I am not aware of any permit condition 21 that says we have to start diverting during the smolt 22 migration, and that would be entirely infeasible. You can't 23 just stop irrigating your crop for 30 days. 24 MR. O'LAUGHLIN: I would like to focus your testimony a 25 little bit on some testimony that was given yesterday by Mr. 4004 01 Ford. 02 Mr. Ford testified in regards to siltation in regards 03 to -- in the South Delta. Based on your long-time residence 04 in the South Delta, are you aware of a siltation problem 05 that has occurred over the last two or three years? 06 MR. HILDEBRAND: Didn't do it in the last two or three 07 years. It's been happening for several decades. The bottom 08 of the channel in the main stem of the river from way 09 further south and down past Vernalis and on down now even 10 past the Old River bifurcation has made the river roughly 11 eight feet shallower than it used to be. These last wet 12 years merely exacerbate that. Because the sediment gets 13 moved primarily in high flows, and we are now getting 14 agridation. And Old River and Middle River has pretty well 15 been silted up for a long time. 16 This is a serious problem, and it will continue to get 17 worse and make solutions to both flood problems and low 18 water problems almost impossible if we don't begin to at 19 least have a maintenance level of control of that agridation 20 so it doesn't continue to get worse. There are areas that 21 should be fixed to restore in some degree what we had even 22 as recently as 20 years ago. 23 MR. O'LAUGHLIN: What -- can you describe for me 24 briefly what impacts to farmers within South Delta Water 25 Agency occur due to the siltation problem that is occurring 4005 01 in South Delta Water Agency? 02 MR. HILDEBRAND: It exacerbates the problem of the 03 drawdown of the export pumps. They don't have to draw down 04 very much anymore in order to make the channels either dry 05 or too shallow to operate the pumps. 06 MR. O'LAUGHLIN: What happens if the tidal barriers are 07 in, and historically let's go back in time and say the tidal 08 barriers were in and the channel was eight feet deeper. 09 You would be able to impound a larger volume of water behind 10 the tidal barriers; is that correct? 11 MR. HILDEBRAND: Yes. 12 MR. O'LAUGHLIN: Nowadays, since the channel is about 13 eight feet shallower, there is less water that can be 14 impounded behind the tidal barriers; is that correct? 15 MR. HILDEBRAND: Yes. But we can still impound enough 16 with the tidal barriers to get us through the low tide. 17 MR. O'LAUGHLIN: And allow your farmers to pump; is 18 that correct? 19 MR. HILDEBRAND: That's correct. 20 MR. O'LAUGHLIN: Do you agree with the testimony that 21 was given that the cause was the channels going dry in 22 previous years may have been in part due to historic 23 pumping, but siltation causing less volume of water to occur 24 within the channels? 25 MR. HERRICK: I will object. That misstates the 4006 01 testimony. The areas that went dry were not the areas that 02 were discussed yesterday that had lower water levels in the 03 recent two years. 04 MR. O'LAUGHLIN: Let me rephrase the question, then. 05 Do you have any evidence or know of anything that if 06 historic pumping levels remain the same and the channels 07 become shallower, that the channels would go dry within 08 South Delta Water Agency? 09 MR. HILDEBRAND: I have no evidence to indicate that we 10 would have dry channels now in the absence of export 11 pumping. 12 MR. O'LAUGHLIN: You attribute it all to export pumping 13 rather than to a siltation problem, which leads to less 14 volume of water which would then make it more difficult for 15 the farmers to meet their historic pumping? 16 MR. HILDEBRAND: As I have said, the amount of export 17 pumping that we can tolerate without the benefit of the 18 barriers has been substantially diminished. 19 MR. O'LAUGHLIN: What has South Delta Water Agency done 20 to rectify the problems within its boundaries? 21 MR. HILDEBRAND: We have no capability of doing that 22 because we have no authority or taxing ability or anything 23 else to do that to control, and we would have to get permits 24 from the Corps. And our experience in our districts in 25 trying to get permits for local problems has been not very 4007 01 good. 02 MR. O'LAUGHLIN: Are you looking to upstream diverters 03 to increase the flow in the San Joaquin River so that a 04 higher head of water is thereby available, thereby 05 increasing the elevation of water in the South Delta in 06 order to ameliorate the impacts of the siltation problem? 07 MR. HILDEBRAND: We've only asked that the flow be 08 sufficient to meet our diversions and channel depletions, 09 which includes public trust. 10 MR. O'LAUGHLIN: You keep mentioning "public trust." 11 What is South Delta Water Agency's view on how water has to 12 be made available within South Delta Water Agency to meet 13 public trust? 14 MR. HILDEBRAND: Well, evaporation from the channels, 15 the water consumption by the riparian vegetation along the 16 channels, that sort of thing. Of course, it could also 17 include recreational activities, but we haven't tried to 18 qualify that. 19 MR. O'LAUGHLIN: I am very unfamiliar with tidal 20 barriers, so bear with me for a second. Is the goal of the 21 tidal barriers to theoretically not allow surface water to 22 escape and to trap it behind the tidal barriers? 23 MR. HILDEBRAND: Say that again. 24 MR. O'LAUGHLIN: In other words, is the goal of the 25 tidal barriers to capture water behind tidal barriers and 4008 01 not allow surface water to escape? 02 MR. HILDEBRAND: I suppose you could put that as being 03 part of the goal. What you do is you directly trap the high 04 tide water so that we have something to pump during the low 05 tide. 06 MR. O'LAUGHLIN: At that time, if there is water behind 07 the tide gates, the goal is with the incoming tide you keep 08 the water behind the gates, whatever is there, and hopefully 09 capture the high tide at that same time; is that correct? 10 MR. HILDEBRAND: I am not sure I understand that 11 question. 12 MR. O'LAUGHLIN: Let me ask it again. 13 If there is water already behind the tide gates and 14 then you open the tide gates up only at high tide, the goal 15 is -- 16 MR. HILDEBRAND: We just don't open them at high tide? 17 MR. O'LAUGHLIN: When else do you open them? 18 MR. HILDEBRAND: The permanent barriers should be 19 operable, would be opened all during the rising tide. So 20 that you have open channels situation, no impediment to 21 boats or fish or anything else during rising tie. When the 22 ebb tide takes place, you close them, and you capture what 23 water has flowed into the channel during raising tide. 24 Operate on that during the low tide. 25 MR. O'LAUGHLIN: At the same time isn't, it true that 4009 01 if there is water already behind the tide gates that you try 02 to maintain that water behind the tide gates, plus capture 03 the rising tide? 04 MR. HILDEBRAND: In the deeper areas, yes, there will 05 be water behind the tide gates. 06 MR. O'LAUGHLIN: Hydraulically that would be correct, 07 too, because the rising tide would push that water back -- 08 water behind the tide gates back into the system; is that 09 correct? 10 MR. HILDEBRAND: What you get is a unidirectional flow, 11 to each channel reach, so that you don't have any stagnate 12 zones that we discussed yesterday, that are a big problem. 13 MR. O'LAUGHLIN: I want to talk a little bit about 14 South Delta Water Agency's drainage. Your drainage within 15 the South Delta Water Agency goes back into the channels, 16 around the -- in the South Delta Agency; is that correct. 17 MR. HILDEBRAND: Right. 18 MR. O'LAUGHLIN: We have talked a lot about the 19 concentration after it is used on the farm when it gets put 20 back into the system is higher than when you take it out, 21 correct? 22 MR. HILDEBRAND: Concentration, but not the salt load. 23 MR. O'LAUGHLIN: Absolutely. 24 Now, wouldn't it be true that during -- if the barriers 25 are in, that all the drainage would theoretically be trapped 4010 01 behind the barriers during the months of June, July, August 02 and September if the barriers were operational? 03 MR. HILDEBRAND: No, that is not the case. You only 04 trap it during the ebb tide, and then the next rising tide 05 pushes it right on through so you get this unidirectional 06 flow through each reach and purge that salt out of it. 07 MR. O'LAUGHLIN: This is the thing that I have always 08 been confused about. When the water is coming through the 09 tide gates and there is drainage water behind them, where 10 does the incoming tide push this drainage water to or 11 through? 12 MR. HILDEBRAND: That depends on the situation. If you 13 are operating the Middle River and Tracy overbarriers, you 14 push it through Salmon Slough area, and it goes back out the 15 Grant Line Canal. If, on the other hand, you are operating 16 all three of the tidal barriers, then, although it won't 17 happen on every tide cycle, depending on various conditions, 18 you will actually push some of it right on out into the San 19 Joaquin River where it came from. 20 The whole objective, not the whole objective, but an 21 object of the tidal barriers is to keep San Joaquin River 22 salt out of those channels. 23 MR. O'LAUGHLIN: Have you done any modeling to confirm 24 your understanding that when the barriers are open that the 25 flow of water is such that it pushes the drainage water from 4011 01 South Delta Water Agency back into the San Joaquin River? 02 MR. HILDEBRAND: Modeling has been done which indicates 03 that that is the case. 04 MR. O'LAUGHLIN: What modeling are you aware of that 05 has been done to support that proposition? 06 MR. HILDEBRAND: Most of that modeling was done by the 07 Department of Water Resources. You can look also at the 08 salinity consequences, and that tells you whether you have 09 to purge or not. 10 MR. O'LAUGHLIN: Turning now to New Melones, what 11 alternative in the State Water Resources Control Board's 12 Draft EIR satisfies salinity requirements at Vernalis under 13 all conditions? 14 MR. HILDEBRAND: Repeat that, please. 15 MR. O'LAUGHLIN: What alternative in the State Water 16 Resources Control Board Draft EIR satisfies salinity 17 requirements at Vernalis under all conditions? 18 MR. HILDEBRAND: It has been a while since I read 19 those, but I don't recall that any of them do. However, 20 could qualify that in that some of the alternatives do 21 assume that there will be full compliance for the Vernalis 22 standard. In fact, most of them do. 23 If there is that full compliance and if you have the 24 tidal barriers, then, as we discussed yesterday, you will 25 indeed meet the downstream requirements with the possible 4012 01 exception of Bryant Bridge, where you will have to do a 02 little more than meet the Vernalis standard and are also to 03 meet it at Bryant Bridge. 04 MR. O'LAUGHLIN: What State Water Resources Control 05 Board Draft EIR alternative are you aware of that meets the 06 salinity requirements under all conditions? You just said 07 you were aware that there may be one. 08 MR. HILDEBRAND: I don't recall whether any of them do 09 totally meet it. 10 MR. O'LAUGHLIN: Are you aware of what the water cost 11 would be to upstream diverters to meet the Vernalis salinity 12 requirement under all conditions? 13 MR. HERRICK: I'll object as vague. Is this every 14 possible upstream diverter? How do we want to measure 15 cost? I think the question needs to be a little more 16 specific. 17 MR. O'LAUGHLIN: Water cost, the amount of water. In 18 other words, how much water is it going to take to meet 19 salinity requirements at Vernalis under all conditions in 20 any given year type that you want to pick? 21 MR. HILDEBRAND: I can't give you an exact figure. I 22 can give you order of magnitude. In one fairly recent year 23 when the Bureau did not meet the Vernalis requirement, I 24 requested that they determine how much water it would have 25 needed out of New Melones just to maintain water quality 4013 01 from the 1st of March through the 15th of April, and it 02 would have taken 100,000 acre-feet more water than they 03 released. 04 MR. O'LAUGHLIN: Has South Delta Water Agency ever 05 compiled a list of the water rights of the various member 06 agencies or entities or individuals within its boundaries? 07 MR. HILDEBRAND: A vast majority of them are riparians, 08 so they have riparian rights. We don't have to quantify 09 that. 10 MR. O'LAUGHLIN: Has South Delta Water Agency ever done 11 an independent examination to determine whether or not those 12 people are truly riparian or not? 13 MR. HILDEBRAND: Well, we are pretty well aware of the 14 geography down there. If the land borders on the -- any 15 portion of our 75 miles of channel, then they have riparian 16 rights. 17 MR. O'LAUGHLIN: Have you -- has South Delta Water 18 Agency done any compilation of any of the appropriative 19 rights held within South Delta Water Agency? 20 MR. HILDEBRAND: Oh, we are pretty well aware of those. 21 There are a few minor ones which I couldn't list for you. 22 But the only substantial nonriparian rights are the Westside 23 Irrigation District and the Banta Carbona Irrigation 24 District which have pre-1914 rights, very early date. 25 MR. O'LAUGHLIN: On Page 7 of your testimony you put 4014 01 forth the concept that in all -- on 7 and it goes on to 8. 02 All the natural flow of the Stanislaus River shall be passed 03 through New Melones, 7, and it goes to Page 8, Mr. 04 Hildebrand. 05 MR. HILDEBRAND: What about it? 06 MR. O'LAUGHLIN: Why are you asking that that permit 07 term be put on the United States Bureau of Reclamation in 08 that fashion? 09 MR. HILDEBRAND: It is back to this business of the 10 failure of the Bureau to recognize the burden on the 11 Stanislaus to provide its share of the channel depletion 12 flow that is required at Vernalis to be our riparian or 13 public trust rights. 14 MR. O'LAUGHLIN: Would you agree that other entities on 15 Stanislaus River have rights prior in time to the Bureau 16 where that permit term would not be applicable? 17 MR. HILDEBRAND: No. Because the riparian rights are 18 superior to the pre-1914 rights. If there are riparian 19 rights upstream, then that would be a sharing of the 20 shortage rather than substitute. 21 MR. O'LAUGHLIN: Has South Delta Water Agency 22 implemented any irrigation efficiency practices within its 23 boundaries? 24 MR. HILDEBRAND: It would serve no purpose to do that. 25 As I explained yesterday, the return flow from the ag lands, 4015 01 whether your efficiency is 50 percent or 80 percent, makes 02 hardly any difference to the salinity in the channel. 03 Because the thing that affects the salinity in the channel 04 is how much salt came down the river into that channel, and 05 how much of that was concentrated by a consumptive use of 06 the crops. As long as you have the same crop yield and the 07 same inflow of the salt from the upstream area, the 08 application efficiency really doesn't alter the salinity in 09 the channel. 10 MR. O'LAUGHLIN: But wouldn't efficiency, if it was 11 possible for South Delta Water Agency farmers to take an 12 efficiency and thereby go from diverting 3.5 or 3 acre-feet 13 per acre and going down to 2.5 or 2 acre-feet per acre less 14 quantity of water, would need to be made available at South 15 Delta Water Agency; is that correct? 16 MR. HILDEBRAND: No. Because the return of the channel 17 is so quick that it's matter of hours typically and it 18 really wouldn't effect the amount of inflow you would have 19 to have in that channel to take care of the consumptive 20 uses. 21 MR. O'LAUGHLIN: But you're complaining -- South Delta 22 Water Agency, one of its complaints is that its channel 23 depletion is such. Given that if you increased your 24 efficiency so that you were pumping less water, wouldn't it 25 be true that your channel depletion requirements would be 4016 01 less? 02 MR. HILDEBRAND: No. Because if you increased channel, 03 the application efficiency, you would pump less out, but you 04 also have less going back in. So, it really isn't relevant. 05 MR. O'LAUGHLIN: How much water would go back -- how 06 much water goes to the channel based on the application 07 within normal years of water within South Delta Water Agency 08 out of the -- 09 MR. HILDEBRAND: Essentially all of the water that is 10 diverted in excess of the consumptive use of the crop goes 11 back in the channel, very rapidly. 12 MR. O'LAUGHLIN: So, how much of the water -- let's say 13 South Delta Water Agency uses 345,000 acre-feet a year or 14 diverts that amount. How much water is actually consumed 15 within South Delta Water Agency by the crops? 16 MR. HILDEBRAND: We could calculate that. If you -- 17 DWR does this. They look at the crop patterns and the 18 amount of consumptive use of those crops and determines how 19 much the consumptive use is. And so, whatever that figure 20 is, then you add to that the amount diverted. But the 21 amount of the difference would go back into the channel, 22 anyway. So it wouldn't make a lot of difference. 23 MR. O'LAUGHLIN: The water going back in the channel, 24 if you have a 50 percent efficiency application, roughly 25 175,000 acre-feet would go back into the channel; is that 4017 01 correct? 02 MR. HILDEBRAND: Well, I don't think your 345,000 03 figure is correct in the first place, but -- 04 MR. O'LAUGHLIN: Hypothetically. 05 MR. HILDEBRAND: Hypothetically, if you consume only 06 half of what you pump out, the other half goes back in the 07 channel. 08 MR. O'LAUGHLIN: Now, if we have an efficiency increase 09 within the South Delta Water Agency and you increase your 10 efficiencies, and you now pump 80 percent, you will have 11 less water going back in the channel, but then you would 12 also need less freshwater coming in; is that correct? 13 MR. HILDEBRAND: No. It won't make any difference. 14 Because that is all circulation within the channel. So that 15 the amount you pump out in excess of the consumptive use 16 goes right back, and it doesn't alter the total inflow you 17 need to that channel reach. 18 MR. O'LAUGHLIN: How are the permit terms that are 19 suggested on 7 and 8 related to no net loss to any of the 20 upstream permit or licensee holders in the San Joaquin River 21 Basin? 22 MR. HILDEBRAND: If you have these permit conditions 23 and you provide the Vernalis supplement flow needed at 24 Vernalis, by recirculation or by purchases on the west side, 25 you then don't take any water away from the people on the 4018 01 tributaries. You don't take any water away from us. You 02 don't take any water from the -- if you do it by 03 recirculation, you don't take water away from the 04 contractors. 05 MR. O'LAUGHLIN: What I am focusing on specifically is 06 on Page 8. You say all projects which divert water to 07 storage upstream of Vernalis, and then you throw in this 08 permit condition that should be applied to them. 09 How is it that that permit condition does not result in 10 a net harm or net impact to the upstream diverters? 11 MR. HILDEBRAND: That permit condition merely requires 12 that the tributaries do what they are supposed to do 13 already. So I am not suggesting that there wouldn't be some 14 times when that meant that they would have to bypass water 15 that they are now, not by passing, but should because their 16 permits say they must meet all downstream prior rights. And 17 all this says is got to really do that. 18 MR. O'LAUGHLIN: Thank you, Mr. Hildebrand. 19 C.O. CAFFREY: Thank you, Mr. O'Laughlin. 20 Mr. Birmingham. 21 ---oOo--- 22 CROSS-EXAMINATION OF SOUTH DELTA WATER AGENCY 23 BY WESTLANDS WATER DISTRICT 24 BY MR. BIRMINGHAM 25 MR. BIRMINGHAM: Mr. Hildebrand, as I understand it, 4019 01 you contend that the root cause of the salinity problem in 02 the South Delta is the Central Valley Project; is that 03 correct? 04 MR. HILDEBRAND: Correct. 05 MR. BIRMINGHAM: Therefore, you contend that the 06 Central Valley Project should be solely responsible for 07 meeting 1995 Water Quality Control Plan salinity objective 08 at Vernalis? 09 MR. HILDEBRAND: Correct. 10 MR. BIRMINGHAM: In addition to the Vernalis salinity 11 standard, the 1995 Water Quality Control Plan contains flow 12 objectives for Vernalis, doesn't it? 13 MR. HILDEBRAND: Yes. 14 MR. BIRMINGHAM: Based on your written testimony and 15 your earlier responses to Mr. O'Laughlin, am I correct that 16 South Delta Water Agency contends that the CVP should be 17 responsible for meeting the Vernalis flow objectives 18 contained in the 1995 Water Quality Control Plan? 19 MR. HILDEBRAND: To the extent that those flows are not 20 to be provided by the releases such as the FERC releases on 21 the Tuolumne, yes. 22 MR. BIRMINGHAM: One way for the Central Valley Project 23 to meet the flow objectives at Vernalis is to release water 24 from New Melones; is that correct? 25 MR. HILDEBRAND: Wrong way to do it. 4020 01 MR. BIRMINGHAM: I wonder if I could ask Mr. Hildebrand 02 to answer my questions. If you would like to provide other 03 responses to questions that his counsel may ask of him on 04 redirect, that would be fine. But I think I am entitled to 05 ask Mr. Hildebrand questions and have him respond to them. 06 C.O. CAFFREY: I will go farther than that with the 07 instruction. 08 Mr. Hildebrand, we do allow people to qualify their 09 answers. The only change I would make in your answer in my 10 advice to you, is answer the question first and then you can 11 say, however, you believe it is the wrong way to do it. 12 MR. HILDEBRAND: Happy to do that. 13 C.O. CAFFREY: Thank you, sir. 14 MR. BIRMINGHAM: Is it correct, Mr. Hildebrand, that 15 one way for the Central Valley Project to meet the flow 16 objective is to release water from New Melones? 17 MR. HILDEBRAND: I don't think I can give a yes or no 18 answer to that, because it's not the way that's feasible in 19 the long run. The New Melones does not have the capability 20 of restoring the flow which has been removed by CVP from the 21 Friant. 22 MR. BIRMINGHAM: Mr. Hildebrand, are you familiar with 23 the August 27, 1990, draft contract among the United States 24 Bureau of Reclamation, the California Department of Water 25 Resources and the South Delta Water Agency? 4021 01 MR. HILDEBRAND: Repeat that date. 02 MR. BIRMINGHAM: It is a document that is attached to 03 Attachment 1 to the testimony of the Department of Water 04 Resources in Phase V, Department of Water Resources Exhibit 05 37. 06 MR. HILDEBRAND: 1990 document? 07 MR. BIRMINGHAM: It is a 1990 document, which, 08 according to the testimony of the Department of Water 09 Resources, is a draft contract to settle mitigation entitled 10 "South Delta Water Agency versus United States"? 11 MR. HILDEBRAND: Yes, I am quite familiar with that. 12 MR. BIRMINGHAM: In fact, you were among the people 13 responsible for negotiating this settlement contract; is 14 that correct? 15 MR. HILDEBRAND: That's correct. 16 MR. BIRMINGHAM: Am I correct that the South Delta 17 Water Agency is prepared to sign this contract? 18 MR. HILDEBRAND: Yes, we even had an election of our 19 electorate authorizing us to sign it. And it is our 20 understanding, as Mr. Ford indicated, that the DWR is ready 21 to sign it, but the Bureau has procrastinated, 22 procrastinated and procrastinated. 23 MR. BIRMINGHAM: Isn't it correct, Mr. Hildebrand, that 24 one of the paragraphs in this contract among the United 25 States Bureau of Reclamation, the Department of Water 4022 01 Resources and the South Delta Water Agency provide for the 02 release of water from New Melones Reservoir to maintain 03 water quality standards at Vernalis? 04 MR. HILDEBRAND: Will you indicate the paragraph you 05 are referring to? 06 MR. BIRMINGHAM: I am looking at Page 7, Section or 07 Paragraph 4. 08 MR. HERRICK: May I confer with my client for one 09 minute so there is clarification here? 10 C.O. CAFFREY: Go ahead. 11 MR. HERRICK: Thank you very much. 12 MR. HILDEBRAND: I don't see a Paragraph 4 here. 13 MR. BIRMINGHAM: On Page 7 of the contract is there -- 14 near the top of the page is there a number four? 15 MR. HILDEBRAND: Yes, I see that. 16 MR. BIRMINGHAM: It says -- 17 MR. HILDEBRAND: I thought you were talking about the 18 sub. What about that? 19 MR. BIRMINGHAM: This paragraph deals with water 20 quality and flows at Vernalis; is that correct? 21 MR. HILDEBRAND: That is correct, but it only refers to 22 the interim situation, not the ultimate. 23 MR. BIRMINGHAM: One of the interim solutions or -- let 24 me restate the question. 25 This agreement provides in this paragraph that the 4023 01 Bureau of Reclamation will release water from New Melones in 02 order to meet the Vernalis water quality objective, doesn't 03 it? 04 MR. HILDEBRAND: On an interim basis, yes, but it 05 hasn't prevailed. 06 MR. BIRMINGHAM: So you would agree with me, wouldn't 07 you, Mr. Hildebrand, that one way for the CVP to meet flow 08 objectives at Vernalis is to release water from New Melones? 09 MR. HILDEBRAND: It can contribute to that, but not if 10 they've taken all the fish flow things. They can't do it 11 and also do the fish flows. 12 MR. BIRMINGHAM: I take it from your answer that your 13 answer to my question is yes. 14 MR. HILDEBRAND: To a degree. 15 MR. BIRMINGHAM: Mr. Hildebrand, it seems to me this a 16 pretty simple question. I want to make sure that I have an 17 answer in the record. I am not saying it is the only way. 18 I am not saying it is the way that you would advocate. But 19 one way in order for the Central Valley Project to meet flow 20 objectives at Vernalis is to release water from New Melones 21 Reservoir? 22 MR. HERRICK: I would like to object. There are too 23 many undefined things there. Is the questioner asking 24 whether flows released from New Melones can meet fully all 25 objectives, or that they can be released towards those 4024 01 objectives? That is why there was a confusion with the 02 question. 03 MR. BIRMINGHAM: I will stand by the question. 04 MR. JACKSON: Mr. Caffrey, I would like to be heard on 05 that. This misstates the evidence. The evidence from the 06 Bureau -- 07 C.O. CAFFREY: What misstates the evidence? 08 MR. JACKSON: The question misstates the evidence. 09 C.O. CAFFREY: I don't think he made reference to 10 evidence. I think he is just asking something very close to 11 a hypothetical question. 12 MR. JACKSON: There is no evidence testified by any 13 witness that New Melones can meet all these standards by 14 itself. On the basis of the testimony that the Bureau has 15 given, DWR has given and the expert from the San Joaquin 16 River Group has given, there is not enough water in New 17 Melones. So the question assumes a hypothetical with no 18 support in the evidence. 19 C.O. CAFFREY: Just a moment. Off the record. 20 (Discussion held off the record.) 21 C.O. CAFFREY: We are back on record. 22 Mr. Birmingham, if you want to rejoin us. I am going 23 to ask Mr. Hildebrand to answer the question. I interpret 24 the question to be somewhat in the nature of a 25 hypothetical. You may qualify the answer if you wish, but I 4025 01 think the question is understandable and appropriate. 02 MR. HILDEBRAND: I gave the qualified answer before, 03 that it is partially capable of doing this. But as Mr. 04 Turner says, is incapable of totally doing it. 05 C.O. CAFFREY: Thank you, sir. 06 I believe your reference to Mr. Turner, do you mean Mr. 07 Jackson or were you referring to -- 08 MR. HILDEBRAND: I thought that was Jim Turner talking. 09 MR. TURNER: Sorry about that. 10 MR. BIRMINGHAM: God forbid. 11 MR. JACKSON: I don't think Mr. Turner has ever been 12 insulted. 13 C.O. CAFFREY: After a while from up here, you look 14 alike. 15 MR. HILDEBRAND: I guess the diplomatic thing for me to 16 do is apologize to both gentlemen. 17 C.O. CAFFREY: Very good, Mr. Hildebrand. 18 Mr. Stubchaer remarked that it must be the beard. 19 Back to reality. Go ahead, Mr. Birmingham. 20 MR. BIRMINGHAM: So, Mr. Hildebrand, we have 21 established that at least in part, one way for the Central 22 Valley Project to meet the flow objectives at Vernalis is to 23 release water from New Melones. It's correct, isn't it, 24 that another way for the Central Valley Project to meet the 25 flow objective at Vernalis is to purchase water from other 4026 01 water right holders on the San Joaquin River or its 02 tributaries? 03 MR. HILDEBRAND: It cannot do that without depleting 04 summer flows. 05 MR. BIRMINGHAM: But it's correct, isn't it, Mr. 06 Hildebrand, that one way for the Central Valley Project to 07 meet the flow objective at Vernalis is to purchase water 08 from other water right holders on the San Joaquin River or 09 its tributaries? 10 MR. HILDEBRAND: That is an unacceptable way of doing 11 it, yes. 12 MR. BIRMINGHAM: Excuse me. Mr. Chairman, we are going 13 to be here all day. If Mr. Hildebrand wants to argue with 14 me, I guess I will deal with that. But I honestly believe I 15 am entitled to an answer to my question. 16 C.O. CAFFREY: I think to some degree you're going to 17 have to deal with it, frankly, Mr. Birmingham. I think that 18 I would -- I believe he said yes after he gave the 19 qualification. As I said before, if I were the witness, 20 and, of course, I am not, I would say yes and then qualify 21 it. 22 But I will ask the witness at the same time to do his 23 best to not be hostile and try to be as objective as he 24 can. 25 MR. HILDEBRAND: My problem, Mr. Chairman, is that I am 4027 01 being asked to answer a question which if answered with yes 02 or no would be misleading. 03 C.O. CAFFREY: I understand that, Mr. Hildebrand, and I 04 am sympathetic and sensitive to it. I think what I am 05 simply saying is that you may qualify your answer, and 06 perhaps -- I am not sure, perhaps the order of the answer 07 that is -- 08 MR. HILDEBRAND: If that's what's bugging him, I will 09 try to do something different. 10 MR. BIRMINGHAM: Mr. Hildebrand, perhaps you and I can 11 reach an agreement that I will give you an unlimited amount 12 of time to qualify your answer if you will answer my 13 question. 14 Is that acceptable? 15 MR. HILDEBRAND: Yes, except that I must reserve the 16 right at times to say that it can't be answered with a 17 simple yes or no. 18 MR. BIRMINGHAM: If that is the answer, Mr. Hildebrand, 19 I am certainly willing to accept that. 20 MR. HILDEBRAND: If that makes you happy, I will do 21 so. 22 MR. BIRMINGHAM: Thank you. 23 If the CVP were to purchase water from other water 24 right holders to meet the flow objectives at Vernalis, it 25 would enable the CVP to retain more water in storage at New 4028 01 Melones; is that correct? 02 MR. HILDEBRAND: Are you talking about making purchases 03 on the Merced and Tuolumne in order to diminish the flows 04 needed out of New Melones? 05 MR. BIRMINGHAM: If you don't understand my question, 06 let me rephrase it. 07 Mr. O'Laughlin asked you questions about the pulse 08 flows contained in the 1995 Water Quality Control Plan. Do 09 you recall those questions? 10 MR. HILDEBRAND: If you'll identify which one. 11 MR. BIRMINGHAM: Let me ask it differently, Mr. 12 Hildebrand. It is correct, isn't it, that the 1995 Water 13 Quality Control Plan contains pulse flows for the period 14 from April 15th through May 15th for the San Joaquin River 15 at Vernalis? 16 MR. HILDEBRAND: Correct. 17 MR. BIRMINGHAM: One way in which the Bureau of 18 Reclamation can meet those flows is by releasing water in 19 New Melones? 20 MR. HILDEBRAND: Yes, partially. 21 MR. BIRMINGHAM: Alternatively, the Central Valley 22 Project can purchase water from water right holders on the 23 San Joaquin River or its tributaries to meet the pulse flows 24 at Vernalis during the April 15th through May 15th period; 25 is that correct? 4029 01 MR. HILDEBRAND: When you say "on the San Joaquin 02 River," where are you referring to? 03 MR. BIRMINGHAM: I am talking about the San Joaquin 04 River above Vernalis. 05 MR. HILDEBRAND: I can't answer that yes or no because 06 it has to be qualified to the degree that I don't think they 07 can do that without violating downstream rights which are 08 conditions of their permits. 09 MR. BIRMINGHAM: Now, you have indicated that one way 10 in which they can satisfy the pulse flow requirement would 11 be by purchasing water from contractors; is that correct? 12 MR. HILDEBRAND: Yes. 13 MR. BIRMINGHAM: The exchange contractors receive water 14 from the Delta-Mendota Canal; is that correct? 15 MR. HILDEBRAND: Yes. 16 MR. BIRMINGHAM: On the exchange contractors, all 17 pre-14 water rights on the San Joaquin River; is that 18 right? 19 MR. HILDEBRAND: Yes. 20 MR. BIRMINGHAM: So one way in which the Bureau of 21 Reclamation could meet the flow objectives at Vernalis 22 during the April 15th through May 15th period would be to 23 acquire water from the exchange contractors? 24 MR. HILDEBRAND: Yes. Providing that they do it in 25 such a way that they are not substituting a diminished flow 4030 01 down the river during a pulse flow, which would otherwise be 02 a return flow in the summertime. 03 MR. BIRMINGHAM: That takes me to a point that you made 04 during your cross-examination by Mr. O'Laughlin. Do I 05 understand, Mr. Hildebrand, that South Delta Water Agency's 06 position, that if members of the San Joaquin River Group 07 Authority improve irrigation efficiencies through 08 conservation measures and as a result there are less return 09 flows to the river during the summer, that would violate 10 your water rights? 11 MR. HILDEBRAND: Again, you will have to define 12 "conservation." 13 MR. BIRMINGHAM: You used the term irrigation 14 efficiency in response to that question. What are some of 15 the means that can be used to improve irrigation 16 efficiency? 17 MR. HILDEBRAND: You can have a drip system instead of 18 a furrow system. You can -- it is a matter of distributing 19 the water more efficiently over the land and not having made 20 -- minimizing any direct spill back. 21 MR. BIRMINGHAM: Hypothetically, let's assume that 22 members of the San Joaquin River Group Authority change from 23 a furrow irrigation method to a drip irrigation method and, 24 as a result, improve their irrigation efficiency. As a 25 result, reduce the return flows into the San Joaquin River. 4031 01 Is it your view that that would violate your water 02 rights? 03 MR. HILDEBRAND: The argument is the same as when we 04 went through with Mr. O'Laughlin about the question of 05 application of efficiency in the South Delta. It's the 06 consumptive use that counts. Changing the application 07 efficiency may alter the time at which the summer flow is 08 reduced, but it will still be reduced, if you -- if you make 09 the shift in time from summer until the spring. 10 MR. BIRMINGHAM: Mr. Hildebrand, I am trying to 11 understand your position, so I will ask a question that is 12 not intended to elicit a yes or no answer. 13 What is your basic objection to the acquisition of 14 water by the Bureau of Reclamation from the San Joaquin 15 River Group Authority members to meet the pulse flows at 16 Vernalis during the period from April 15th to May 15th? 17 MR. HILDEBRAND: I am allowed to elaborate now? 18 The objection is that the acquisitions are not being 19 made on the basis of requiring the parties receiving the 20 payment to in any degree reduce their consumptive use and, 21 therefore, inevitably, unless there is a wet year, which 22 gives them a refill from a flood flow, which would otherwise 23 be a flood release, they must reallocate water from one 24 point in time to another. And in any prudent use of water 25 in the districts, such as would be acceptable to the farmers 4032 01 who are clients of those districts that the decrease will 02 take place in the summer. 03 MR. BIRMINGHAM: And it is your view that that violates 04 water rights held by water users within the South Delta 05 Water Agency? 06 MR. HILDEBRAND: It does in either of two ways. It 07 doesn't always, but typically it would in one of two ways. 08 One is this business of reducing the summer flow at Vernalis 09 below our channel depletion needs, which translates into the 10 water quality problems downstream that have been discussed. 11 And the other way is that it -- during the summer, 12 then, you have less dilution water available from the Merced 13 and Tuolumne, or even the Stanislaus, and consequently you 14 have these violations of the Vernalis salinity standard. 15 And as we have testified, there have been many violations in 16 the past, but the interim operation of the Bureau, which is 17 incorporated in the tributary agreement, is one in which 18 would if their operation planned not to have enough water to 19 meet the Vernalis in 40 percent of the water years, and that 20 would be further exacerbated if you make water purchases 21 that reallocate from the summer to the spring. 22 MR. BIRMINGHAM: So, to make sure I understand your 23 position, I am going to ask you a hypothetical question. IF 24 I don't state the facts in the hypothetical, I am sure that 25 either you or Mr. Herrick will let me know. 4033 01 Let's assume hypothetically that there is water agency 02 tributary to the San Joaquin River that has a right to 03 impound 100,000 acre-feet of water per year for the 04 irrigation of 30,000 acre-feet, and typically the district 05 or water users within the district apply three and a third 06 acre-feet of water on the lands. So they apply all of the 07 100,000 acre-feet. I am also going to ask you to assume 08 that the water agency and the water users within the 09 district implement a program to replace furrowed irrigation 10 with drip irrigation. And that as a result of that, the 11 amount of water which is necessary to apply in order to 12 produce the same yield is 90,000 acre-feet rather than 13 100,000 acre-feet. 14 Are you saying that it is impermissible for that water 15 agency to agree with the Bureau of Reclamation to make that 16 10,000 acre-feet of water available during the April 15th 17 through May 15th pulse flow period and file a petition with 18 the State Water Resources Control Board, under Section 1707, 19 to change the purpose of use to fish and wildlife 20 enhancement? 21 MR. HILDEBRAND: I contend they don't have a right to 22 do that for the reason that the storage right they have is a 23 right to store water to meet their own needs within their 24 own boundaries. The minute you start storing water in 25 excess of the need of that district within its own 4034 01 boundaries for the purpose for which it has the water right, 02 then it no longer has the right to do that. It isn't a 03 fixed figure of a hundred thousand acre-feet. It is a 04 figure of 100,000 -- up to 100,000 to the extent that you 05 can use it within the boundaries of the district for the 06 purpose for which the storage right was granted. 07 MR. BIRMINGHAM: So, it would be impermissible for an 08 agency like Imperial Irrigation District to line its canals 09 to make water available for Metropolitan Water District of 10 Southern California? 11 MR. HILDEBRAND: That is an entirely different thing. 12 That is the same as if you fallowed your land in these 13 districts. Because there they are recovering water or 14 saving water that otherwise would go into the Salton Sea and 15 be lost to use. Whereas, in this case, if you don't use it 16 within the district, it comes down and is beneficially used 17 for other purpose downstream. It is -- none of it is being 18 wasted. 19 C.O. CAFFREY: Excuse, Mr. Birmingham. I know this is 20 an intense moment. But they are going to close the -- 21 housekeeping matters. They are going to close the snack 22 stand at 3:00. 23 Let's take a break and come back at 3:00. 24 (Break taken.) 25 C.O. CAFFREY: Let's find our seats and resume the 4035 01 cross-examination. 02 MR. BIRMINGHAM: Mr. Chairman, during the lunch recess 03 when I expected to put Mr. Johnston on I had copied at my 04 office a document that is presently in the State Board's 05 file. It is a document that is entitled "Statement of 06 Westlands Water District Presented at State Water Resources 07 Control Board Workshop Relating to Application" by the 08 United States Bureau of Reclamation for a discharge permit 09 for the San Luis drain, dated April 4, 1996. 10 I would request that this document be marked for 11 identification as Westlands Water District Exhibit 27, which 12 I believe is next in order, and I have 20 copies of it here 13 for the Board, and I also have a number of copies for other 14 parties if they would like one. If I don't have enough, I 15 will make sure additional copies are provided. 16 C.O. CAFFREY: Ms. Leidigh, do you have any comment? 17 MS. LEIDIGH: I have a question; that is, are you 18 offering this in connection with your cross-examination of 19 Mr. Hildebrand? 20 MR. BIRMINGHAM: No. I'm only asking that it be marked 21 for identification and that it be lodged with the Board. 22 MS. LEIDIGH: For what purpose? Can this be done 23 later? Is it part of your rebuttal case? 24 MR. BIRMINGHAM: It can be done later, but, Mr. 25 Chairman, I don't know what would be the objection to 4036 01 marking it for identification now and lodging it with the 02 Board as we have marked all of our -- 03 C.O. CAFFREY: You are not asking that it be accepted 04 into the record; you are simply saying you want to mark it 05 and you want us to consider it at some appropriate time at a 06 later date? 07 MR. BIRMINGHAM: After it's been authenticated, yes. 08 We've already lodged all of our exhibits through 26, many of 09 which have not been -- if there is an objection, we won't do 10 it. 11 C.O. CAFFREY: Is there any objection to what Mr. 12 Birmingham is offering? 13 MR. NOMELLINI: I am going to object unless copies are 14 distributed to all the parties. 15 C.O. CAFFREY: He's going to do that. 16 MR. NOMELLINI: I missed that. 17 C.O. CAFFREY: In fact, you get the very first one. 18 MR. NOMELLINI: I withdraw my objection. 19 C.O. CAFFREY: Ms. Leidigh, I didn't want to go beyond 20 your -- I didn't want to dismiss your concern. I 21 misunderstood I thought he was offering it into evidence at 22 this moment. 23 MS. LEIDIGH: That was my assumption, too. Just 24 marking it -- 25 C.O. CAFFREY: Making it available to the others. 4037 01 MS. LEIDIGH: Not being offered into evidence at this 02 time, just being available to people. I think that is 03 possible. 04 C.O. CAFFREY: Mr. Nomellini has withdrawn his 05 objection. 06 MR. NOMELLINI: As long as you tell us what you are 07 going to mark. 08 MR. BIRMINGHAM: Westlands Water District 27, next in 09 order. 10 MR. NOMELLINI: Thank you. 11 C.O. CAFFREY: Seeing and hearing no objection, we will 12 mark it, and it will be distributed to the other parties, 13 and it is available for later consideration for acceptance 14 into the record. 15 Thank you for that, Mr. Birmingham, and you may 16 proceed. 17 MR. BIRMINGHAM: Thank you. Mr. Hildebrand, I am going 18 to ask you to assume that water is purchased by the Bureau 19 of Reclamation from other water right holders on the San 20 Joaquin River or its tributaries to meet the Vernalis flow 21 objectives. If the Bureau of Reclamation were to purchase 22 such water, rather than releasing water from New Melones 23 Reservoir to meet the flow objectives at Vernalis, it would 24 enable the CVP to retain more water in storage at New 25 Melones; is that correct? 4038 01 MR. HILDEBRAND: I am not sure. 02 MR. BIRMINGHAM: Well, presently the Bureau of 03 Reclamation makes releases from New Melones Reservoir in 04 order to meet the flow objective at Vernalis; is that 05 correct? 06 MR. HILDEBRAND: And for other purposes. 07 MR. BIRMINGHAM: If the Bureau of Reclamation purchases 08 water from other water agencies on tributaries to the San 09 Joaquin River to meet the flow objective, it will -- the 10 Bureau of Reclamation can reduce its releases from New 11 Melones Reservoir to meet the flow objectives at Vernalis; 12 isn't that correct? 13 MR. HILDEBRAND: Are you including purchases on the 14 Stanislaus? 15 MR. BIRMINGHAM: I am including purchases on the 16 Tuolumne and the Merced. 17 MR. HILDEBRAND: Tuolumne and Merced, make purchases 18 there. You are saying it would reduce the need to make 19 purchases on the Stanislaus? 20 MR. BIRMINGHAM: No. I am saying that it would reduce 21 the need to make releases from New Melones Reservoir on the 22 Stanislaus; is that correct? 23 MR. HILDEBRAND: I am not sure it is, no. 24 MR. BIRMINGHAM: I will ask you to assume that the 25 Bureau of Reclamation would be able to reduce -- let me 4039 01 follow up on this, Mr. Hildebrand. I want to make sure I 02 understand. 03 Presently the Bureau of Reclamation makes releases from 04 New Melones Reservoir to meet the flow objective at Vernalis 05 during the April 15 through May 15th period; is that correct? 06 MR. HILDEBRAND: Yes, they are currently doing that. 07 MR. BIRMINGHAM: If rather than doing that, making 08 releases from New Melones, they acquire water from water 09 agencies on the Tuolumne and Merced. Those agencies release 10 water from their facilities on the Tuolumne and Merced to 11 meet the flow objective at Vernalis, that would enable the 12 Bureau of Reclamation to reduce the releases required from 13 New Melones Reservoir to meet the flow objectives on 14 Vernalis at Vernalis during the April 15 to May 15th period; 15 is that correct? 16 MR. HILDEBRAND: May I explain why I don't want to give 17 a yes or no answer? 18 MR. BIRMINGHAM: Yes, please. 19 MR. HILDEBRAND: If they purchase water on those 20 tributaries which results in releases from those tributaries 21 in excess of the FERC flows on the Tuolumne, and they would 22 crunch releases on the Merced, under most conditions that 23 would mean a shift on those tributaries from the summer to 24 the spring. This then would increase the amount of water 25 that would have to be released from New Melones to meet the 4040 01 salinity standard. 02 So that it isn't clear whether that increase would be 03 more or less than the decrease in the water that they would 04 otherwise release from New Melones to meet the Vernalis fish 05 flow standard, and the answer to that would depend also in 06 part on whether they're meeting their obligation to deliver 07 water to the eastern part of San Joaquin County. It would 08 depend in part on whether the Oakdale-South San Joaquin 09 people are selling water outside of the watershed and 10 various other uncertainties. So that I don't think that I 11 can give you a yes or no answer. 12 MR. BIRMINGHAM: I am not sure that you understood my 13 question, Mr. Hildebrand. 14 I am not -- my question did not pertain to releases by 15 the Bureau of Reclamation to meet salinity standards in the 16 summer. My question is restricted to releases required to 17 meet the pulse flow at Vernalis. It is contained in the 18 1995 Water Quality Control Plan for the April 15th through 19 May 15th period. 20 If the Bureau of Reclamation purchases water from water 21 agencies on the Tuolumne River and the Merced River, and 22 those water agencies release water from their facilities to 23 meet the pulse flows at Vernalis during the April 15 through 24 May 15th period, isn't it correct that the Bureau of 25 Reclamation would be able to reduce the releases from New 4041 01 Melones that it otherwise would release in order to meet the 02 pulse flow period, the pulse flows during the April 15th 03 through May 15th period? 04 MR. HILDEBRAND: I still have a problem with a yes or 05 no answer. Because it depends -- during that pulse flow, 06 yes, they would not need to release as much to meet the 07 control plan. But whether they would utilize that reduction 08 in release during that pulse flow period to maintain the 09 water quality better, later in the year or whether they 10 would merely release it for some other purpose, is purely 11 hypothetical. 12 MR. BIRMINGHAM: But they could reduce the releases 13 that -- let me restate the question. 14 But the Bureau of Reclamation could reduce the releases 15 that it would otherwise have to make during the April 15 16 through May 15th period from New Melones in order to satisfy 17 the flows contained in the Water Quality Control Plan for 18 Vernalis during that period? 19 MR. HILDEBRAND: The answer is yes, subject to the 20 qualifications that I've just given. 21 MR. BIRMINGHAM: If the Bureau were able to reduce 22 releases during the April 15th through May 15th period, it 23 would make additional water available from New Melones 24 during subsequent periods for other purposes; isn't that 25 right? 4042 01 MR. HILDEBRAND: Yes. But I don't know what purpose 02 they would use it for. 03 MR. BIRMINGHAM: One purpose could be to make 04 additional releases to meet the salinity objectives at 05 Vernalis during the summer months; isn't that correct? 06 MR. HILDEBRAND: They would have to make additional 07 releases during the summer months if they are going to not 08 further degrade the water quality at Vernalis. 09 MR. BIRMINGHAM: Alternatively, another use of that 10 water that was retained in storage of New Melones as a 11 result of reduced releases could be that water could be made 12 available to Stockton East Water District or Central San 13 Joaquin Water District at times when the water would 14 otherwise not be available; isn't that right, Mr. 15 Hildebrand? 16 MR. HILDEBRAND: Not necessarily. 17 MR. BIRMINGHAM: Mr. Hildebrand, would San Joaquin 18 Water Agency object to the Bureau of Reclamation purchasing 19 water from agencies on the Tuolumne or Merced River to meet 20 salinity standards at Vernalis during July, August and 21 September? 22 MR. HERRICK: I believe you mean South Delta Water. 23 MR. BIRMINGHAM: If I didn't say that, that is what I 24 meant. You are right, Mr. Herrick. Thank you. 25 MR. HILDEBRAND: It wouldn't work because you -- it 4043 01 might help you at one point in time, but it decreases the 02 dilution available at another point in time, and you don't 03 gain anything. You can't solve the shortage for water 04 quality by buying water in one period and increasing the 05 demand for water at another period. 06 MR. BIRMINGHAM: Your answer to my question is that 07 South Delta Water Agency would object to the Bureau of 08 Reclamation purchasing water to meet salinity standards at 09 Vernalis during the July, August and September period? 10 MR. HILDEBRAND: Is your question limited to the 11 tributaries, not to the contractors? 12 MR. BIRMINGHAM: Would your answer be different if it 13 were limited to tributaries? 14 MR. HILDEBRAND: Yes. If it is limited to tributaries, 15 we would object to their pretense that that would be of 16 value. Whereas, if they bought it from contractors on the 17 -- Friant water users or the west side contract, then we 18 would have no objection. 19 MR. BIRMINGHAM: Mr. Hildebrand, you stated that the 20 Central Valley Project is the root cause of salinity 21 problems in the South Delta. There are other causes of the 22 salinity problems in the South Delta, other than the CVP; 23 isn't that correct? 24 MR. HILDEBRAND: The absence of the CVP degradation, 25 the other degradations would not be a problem. 4044 01 MR. BIRMINGHAM: There are causes or there are factors 02 other than the CVP that contribute to salinity problems in 03 the South Delta; isn't that correct, Mr. Hildebrand? 04 MR. HILDEBRAND: It is true that urban discharges, for 05 example, increase the salt load in the system. But it's our 06 judgment that those increases in salt load could be 07 tolerated if we did not have the consequence of the CVP. 08 MR. BIRMINGHAM: One of those consequences that you 09 have identified in your direct testimony, South Delta Water 10 Agency Exhibit 39, is the impoundment of water by Friant 11 Dam; is that correct? 12 MR. HILDEBRAND: That diminishes the available 13 dilution water, yes. 14 MR. BIRMINGHAM: In fact, I believe in your testimony, 15 Mr. Hildebrand, you state that Friant Dam operations have 16 resulted in a net decrease of San Joaquin River flows of 17 345,000 acre-feet between April and September; is that 18 correct? 19 MR. HILDEBRAND: That figure derives from the joint 20 report of the Bureau and the South Delta Water Agency that 21 was published in 1980, I believe June 1980. 22 MR. BIRMINGHAM: Mr. Hildebrand, I am not sure that you 23 have answered my question. Your testimony states that the 24 Friant Dam operations have resulted in a net decrease of San 25 Joaquin River flows of 345,000 acre-feet between April and 4045 01 September? 02 MR. HILDEBRAND: My answer is yes, and I told you where 03 the figure was derived. 04 MR. BIRMINGHAM: Thank you. 05 If you can tell me yes or no before you tell me the -- 06 MR. HILDEBRAND: I am sorry you are so sensitive. I 07 will try to remember. 08 MR. BIRMINGHAM: Thank you. I appreciate it. 09 Isn't it correct, Mr. Hildebrand, that prior to the 10 construction of Friant Dam the exchange contractors diverted 11 water from the San Joaquin River? 12 MR. HILDEBRAND: Yes. 13 MR. BIRMINGHAM: Isn't it correct that those diversions 14 were made under pre-1914 rights and riparian rights? 15 MR. HILDEBRAND: Yes. 16 MR. BIRMINGHAM: Even before Friant Dam was 17 constructed, the 345,000 acre-feet that you have identified 18 in your testimony would not have reached the South Delta? 19 MR. HILDEBRAND: That is not correct. 20 MR. BIRMINGHAM: Mr. Hildebrand, one of the other 21 causes that you have identified for the salinity problem in 22 the South Delta is the discharge of drainage into the San 23 Joaquin River? 24 MR. HILDEBRAND: Yes. 25 MR. BIRMINGHAM: Isn't it correct, Mr. Hildebrand, that 4046 01 prior to the construction of the Central Valley Project, 02 areas within the San Joaquin River Basin suffered from 03 drainage problems? 04 MR. HILDEBRAND: Yes. But the consequence was not 05 enough to cause any problem in the river. We didn't -- 06 never had a salinity above 400 parts per million at Oakdale 07 prior to CVP. 08 MR. BIRMINGHAM: Isn't it correct, Mr. Hildebrand, that 09 the first tile drains within the exchange contractors 10 service area were installed in 1941? 11 MR. HILDEBRAND: I don't know the date, but that sounds 12 reasonable. 13 MR. BIRMINGHAM: So it is correct, isn't it, Mr. 14 Hildebrand, that it was not the diversion or the export of 15 CVP water that resulted in the need for drainage within the 16 service area of the exchange contractors? 17 MR. HILDEBRAND: No. Because the amount of drainage 18 problem that existed at that time was very minor compared to 19 what we have now. It was not sufficient to cause a problem 20 in the river. 21 MR. BIRMINGHAM: What was the date -- let me ask it 22 differently. 23 Could you please quantify the drainage problem as it 24 existed then? 25 MR. HILDEBRAND: There was so little drainage problem 4047 01 at that time that nobody worried about salinity in the 02 river; it was always good. It was typically down in the 03 order of 200, 250, so that the farmers along the river never 04 really worried about salinity until after the CVP bumped 05 those numbers way up. 06 MR. BIRMINGHAM: Prior to the construction of the CVP, 07 Mr. Hildebrand, what was the volume of water that needed to 08 be drained from the service area of water users along the 09 river? 10 MR. HILDEBRAND: I can't tell you what the volume was. 11 All I can tell you is that the salt load that entered the 12 river had salinities above the then prevailing water quality 13 which was not sufficient to cause a problem. 14 MR. BIRMINGHAM: Mr. Hildebrand, Panoche Water District 15 drains into the San Joaquin River; isn't that correct? 16 MR. HILDEBRAND: That's correct. 17 MR. BIRMINGHAM: Isn't it correct, Mr. Hildebrand, that 18 prior to the construction of the Central Valley Project and 19 the delivery of CVP water to Panoche Water District that 20 lands within Panoche Water District were irrigated with 21 groundwater? 22 MR. HILDEBRAND: I don't know whether they all 23 were. There was some, yes. I would assume not all of 24 them. 25 MR. BIRMINGHAM: But you don't know the answer to that 4048 01 question? 02 MR. HILDEBRAND: I don't know how much of the 90,000 03 acres might have at that time been drilled -- irrigating 04 from well water, but I am under the impression that the well 05 water was considerably better quality than it is today. 06 MR. BIRMINGHAM: Is it your understanding, Mr. 07 Hildebrand, that the groundwater which was used to irrigate 08 lands within Panoche Water District prior to the delivery of 09 CVP water to Panoche was of poorer quality than the surface 10 water which is currently being used within Panoche? 11 MR. HILDEBRAND: Probably. 12 MR. BIRMINGHAM: Isn't it correct that prior to the 13 delivery of surface water to Panoche Water District that 14 Panoche Water District drained to the San Joaquin River? 15 MR. HILDEBRAND: I go back to my previous response, 16 that whatever happened at that time was not sufficient to 17 cause a problem of salinity in the river. 18 MR. BIRMINGHAM: I am not sure that is responsive to my 19 question, Mr. Hildebrand. I am asking you: Isn't it 20 correct that prior to the delivery of surface water from the 21 CVP to Panoche Water District, Panoche Water District 22 discharged drainage to the San Joaquin River? 23 MR. HILDEBRAND: Probably, but I don't know for sure 24 what they did. 25 MR. BIRMINGHAM: Assuming hypothetically that Panoche 4049 01 Water District discharged drainage, it was the result of 02 irrigation with poorer quality groundwater, wouldn't the 03 delivery of surface water to Panoche Water District result 04 in an improvement in the drainage being discharged by 05 Panoche into the San Joaquin River? 06 MR. HILDEBRAND: No, I don't think so. 07 MR. BIRMINGHAM: Mr. Hildebrand, one of the additional 08 causes of salinity concentrations in the South Delta is the 09 discharge of drainage from agricultural lands within the 10 South Delta? 11 MR. HILDEBRAND: We have been all over that. You want 12 to start that all over again? 13 We have explained repeatedly that the salt load in the 14 drainage from agricultural land of the South Delta is almost 15 entirely a salt load which comes down the river which 16 originated from the CVP service area and which then is 17 pumped on our land and drains back into the channel. They 18 were adding no significant salt load to the system. And our 19 use of it concentrates it, the salinity, in the channel only 20 to the extent that it is concentrated as a consequence of 21 our consumptive use of water. 22 MR. BIRMINGHAM: Yesterday you were asked if there are 23 tile drains in the service area of the South Delta Water 24 Agency. Do you recall that question? 25 MR. HILDEBRAND: Yes. 4050 01 MR. BIRMINGHAM: You will have to forgive me, Mr. 02 Hildebrand. I wasn't here when you answered that question. 03 Are there tile drains in the -- 04 MR. HILDEBRAND: I am aware of at least one walnut 05 orchard that does have tile drains. But the tile drainage 06 is a very, very small portion of our area. There is also 07 tile drainage on the west side of the river south of Tracy. 08 But in total, this is rather small compared to the total 09 area. And the tile drainage south of Tracy only had to be 10 installed after the canals were put in and the leakage from 11 the canals was creating a problem. 12 MR. BIRMINGHAM: Yesterday, I am informed, and I could 13 certainly be mistaken because I am only informed, in 14 response to that question you mentioned the orchards. Where 15 are those orchards located? 16 MR. HILDEBRAND: Down in the Paradise cut area. 17 MR. BIRMINGHAM: The drainage, subsurface tile drains, 18 that you just identified on the west side of the river, 19 those are drains in the Westside Irrigation District; is 20 that correct? 21 MR. HILDEBRAND: No. They would be in the -- they are 22 in the vicinity of the Banta Carbona District, but I am not 23 sure whether they are within their boundaries. 24 MR. BIRMINGHAM: Isn't it correct that there are areas 25 within the boundaries of Westside Irrigation District that 4051 01 are served by subsurface collector drainage systems? 02 MR. HILDEBRAND: The Westside Irrigation District gets 03 part of its water from a canal, part of it from the channel, 04 and some of the drainage water that results from the use of 05 those waters is actually recycled in effect and reused 06 within the Westside District. 07 MR. BIRMINGHAM: So, it is correct that part of the 08 Westside Irrigation District is served by tile drains? 09 MR. HILDEBRAND: I am not sure whether they are tile 10 drains. All I know is that there is some drainage that gets 11 reused within their own boundaries. 12 MR. BIRMINGHAM: Does Westside Irrigation District 13 discharge drainage into the San Joaquin River? 14 MR. HILDEBRAND: Not as much they should to get rid of 15 the salt. 16 MR. BIRMINGHAM: Isn't it correct, Mr. Hildebrand, that 17 there is a drainage district within the boundaries of South 18 Delta Water Agency? 19 MR. HILDEBRAND: Yes. That is the district that I 20 referred to that has some tile drainage, South Tracy. There 21 is such a district. 22 MR. BIRMINGHAM: Is New Jerusalem Drainage District -- 23 MR. HILDEBRAND: That is it. I was groping for the 24 name. 25 MR. BIRMINGHAM: Isn't it correct that the New 4052 01 Jerusalem District discharges subsurface drainage into the 02 South Delta? 03 MR. HILDEBRAND: That's right. 04 MR. BIRMINGHAM: In your written testimony and here 05 this afternoon you have referred to a 1980 report. Is that 06 correct? 07 MR. HILDEBRAND: That's correct. 08 MR. BIRMINGHAM: It is referred to on Page 2 of your 09 written testimony, South Delta Water Agency Exhibit 39. Mr. 10 Hildebrand, I have looked for that report and have not been 11 able to locate it in our files concerning water right 12 hearings before the State Water Resources Control Board. 13 Your testimony says that it was introduced in previous 14 hearings. Is that correct? 15 MR. HILDEBRAND: It has been introduced more than once, 16 yes. 17 MR. BIRMINGHAM: Can you tell me when it was introduced? 18 MR. HILDEBRAND: Well, it was introduced, I think, 19 originally in the 1485 hearings, and it has been 20 reintroduced subsequently, but I don't recall on just what 21 occasions. We have a copy of it right here. You can see 22 the magnitude of it. It is a very large, technical report, 23 roughly 200 pages. I am one of the authors of the 24 report. And as I stated, it was prepared jointly between 25 the Bureau of Reclamation, which I -- that was during the 4053 01 Carter administration and had a different name at that time, 02 and South Delta Water Agency. 03 MR. BIRMINGHAM: May I look at your copy of the report, 04 Mr. Hildebrand? 05 Isn't it correct, Mr. Hildebrand, that the report -- 06 Has it been identified, Mr. Herrick, for this 07 proceeding? 08 MR. HERRICK: Yes. I believe after Mr. Hildebrand's 09 testimony I went through the exhibits. It is Number 48, I 10 believe. 11 MR. BIRMINGHAM: The report, South Delta Water Agency 12 48 for identification, was a report prepared in conjunction 13 with the United States Bureau of Reclamation? 14 MR. HILDEBRAND: That's correct. 15 MR. BIRMINGHAM: The report, South Delta Water Agency 16 Exhibit 48 for identification, contains a series of 17 analyses, some of which were proposed by the South Delta 18 Water Agency? 19 MR. HILDEBRAND: Yes. I guess you can say that, 20 although it was a joint effort between the Bureau and South 21 Delta to prepare this report. The charge from the 22 Undersecretary of the Interior was to prepare a purely 23 technical report, which would indicate the effects, as the 24 title says, of the CVP upon the Southern Delta water 25 supply. 4054 01 MR. BIRMINGHAM: Isn't it correct, Mr. Hildebrand, that 02 the Bureau of Reclamation did not always support the 03 validity of the analysis contained in South Delta Water 04 Agency Exhibit 48 for identification? 05 MR. HILDEBRAND: At the time of publication, they were 06 coauthors, and they are the ones who actually published it. 07 Subsequently, they at times try to back away from it. But 08 it was not the case at the time the thing was published. 09 MR. BIRMINGHAM: So, your answer to my question is no? 10 MR. HILDEBRAND: Repeat the question. 11 MR. BIRMINGHAM: Isn't it correct, Mr. Hildebrand, that 12 the United States Bureau of Reclamation did not always 13 support the validity of the analysis contained in South 14 Delta Water Agency Exhibit 48 for identification? 15 MR. HILDEBRAND: I guess I have to pull a Clinton on 16 you and ask you what you mean by "always." 17 MR. BIRMINGHAM: Fair enough, Mr. Hildebrand. 18 C.O. CAFFREY: If it's good enough for the President, 19 it's good enough for us. 20 MEMBER DEL PIERO: And that is as far as you are going 21 to go. 22 C.O. CAFFREY: I think we have just reached the outer 23 limits of our boundary of tolerance. 24 MR. HERRICK: Caution my client. 25 C.O. CAFFREY: You may be glad to know that, Mr. 4055 01 Birmingham. 02 MR. BIRMINGHAM: You know, I have to agree with Mr. 03 Hildebrand that that term is ambiguous. 04 C.O. CAFFREY: Go ahead. 05 MR. BIRMINGHAM: At the time of its publication, Mr. 06 Hildebrand, isn't it correct that the Bureau of Reclamation 07 did not support the validity of analysis contained in South 08 Delta Water Agency Exhibit 48 for identification? 09 MR. HILDEBRAND: They were entirely happy with the 10 results. But it is my understanding that they agreed with 11 everything in the report at that time. 12 MR. BIRMINGHAM: So your answer to my question is, no, 13 that is not a correct statement? 14 MR. HILDEBRAND: It is not correct to state they were 15 in disagreement with it at that time. 16 MR. BIRMINGHAM: May I look at it one more time, Mr. 17 Hildebrand? It being, not to be confused with is, it being 18 South Delta Water Agency 48. 19 Mr. Hildebrand, you heard testimony yesterday from Mr. 20 Ford to the effect that operation of the export pumps by the 21 State Water Project and the Central Valley Project improved 22 water quality in the South Delta; is that correct? 23 MR. HILDEBRAND: Improved it in some channels and made 24 it worse in others. Of course, you prefer to emphasize the 25 improvement. 4056 01 MR. BIRMINGHAM: You do acknowledge, don't you, Mr. 02 Hildebrand, that operation of the pumps, the export pumps, 03 by the Department of Water Resources and Bureau of 04 Reclamation can improve water quality in the South Delta? 05 MR. HILDEBRAND: Yes. For example, as indicated in 06 Mike Ford's testimony, when the export pumps draw a reverse 07 flow from Stockton up to Old River, they actually improve 08 the salinity in that reach because they keep the salinity 09 that is coming down, the salt load coming down the San 10 Joaquin from going into that reach. 11 MR. BIRMINGHAM: In fact, the settlement contract which 12 is attached as Attachment 1 to Department of Water Resources 13 Exhibit 37, provides that the CVP and SWP will continue to 14 operate their export pumps in order to improve water quality 15 in the South Delta; is that correct, Mr. Hildebrand? 16 MR. HILDEBRAND: I don't recall that they said "in 17 order to improve water quality." Can you show me where it 18 says that? 19 MR. BIRMINGHAM: I am looking at Page 5 of the 20 document, attachment 1 to DWR Exhibit 37, Paragraph C. It 21 states, does it not, Mr. Hildebrand, that use of existing 22 SWP and CVP export facilities to continue drawing water to 23 the northwest side of the proposed barrier listed in Article 24 III -- 25 MR. HILDEBRAND: This is with the barriers in place, 4057 01 yes. 02 MR. BIRMINGHAM: I'm going to talk for a few moments, 03 Mr. Hildebrand, about another issue which you mentioned in 04 your direct testimony; and that is, water levels. Levels of 05 water in South Delta channels result from a number of 06 factors; isn't that correct, Mr. Hildebrand? 07 MR. HILDEBRAND: Yes. 08 MR. BIRMINGHAM: We had discussion today and yesterday 09 with Mr. Ford about a number of those factors, including 10 siltation of channels? 11 MR. HILDEBRAND: Yes. 12 MR. BIRMINGHAM: Isn't it correct, Mr. Hildebrand -- 13 MR. HILDEBRAND: Wait a minute. The water levels? I 14 guess you could say they are affected by the siltation. But 15 it has to do with the flow capacity of the channel and the 16 consequent drawdown of water levels by local diversions. 17 MR. BIRMINGHAM: As the siltation occurs, the carrying 18 capacity of the channels within South Delta Water Agency 19 diminishes; is that correct? 20 MR. HILDEBRAND: That is correct. 21 MR. BIRMINGHAM: The local diversions have a greater 22 drawdown effect; is that correct? 23 MR. HILDEBRAND: They have a greater drawdown effect 24 than they would have if the channels were deeper, yes. 25 MR. BIRMINGHAM: Siltation -- excuse me. 4058 01 MR. HILDEBRAND: Agridation is a term you can use, if 02 you wish. 03 MR. BIRMINGHAM: Thank you, Mr. Hildebrand. 04 Siltation of the channels is a natural phenomena; isn't 05 it, Mr. Hildebrand? 06 MR. HILDEBRAND: Yes. However, it's been enormously 07 exacerbated by the inflow into the channel down near Grayson 08 of about a million tons a year of sediment from the west 09 side. 10 MR. BIRMINGHAM: Mr. Ford indicated yesterday that the 11 recent siltation of the channels in the South Delta has 12 resulted from high flow events; is that correct? 13 MR. HILDEBRAND: The agridation takes place, largely, 14 during high flows, yes. 15 MR. BIRMINGHAM: I believe Mr. Ford, and I am asking 16 you, Mr. Hildebrand, if you agree with what Mr. Ford said, 17 that when high flows reach the Delta, the velocity of the 18 water is slowed and, as a result, sediment falls out of the 19 water column and results in degradation? 20 MR. HILDEBRAND: Yes. There are two things that happen 21 there. One is that it hits the tidal zone where you 22 actually get a reverse flow for a while, so that you have 23 very little flow loss during the rising tide, and the fact 24 that you are running into larger channels that consequently 25 slow the flow down. 4059 01 However, the agridation is occurring in the main stem, 02 all the way from Grayson on down almost to Stockton. It 03 isn't only in the Delta. 04 MR. BIRMINGHAM: Mr. Hildebrand, yesterday Mr. Ford 05 identified ag diversions in the South Delta as an additional 06 cause of lower water levels in channels within the South 07 Delta. And from your testimony a few moments ago I take it 08 you agree with him that local ag diversions do result in 09 lower water levels within the channels? 10 MR. HILDEBRAND: The qualification to have give to that 11 is -- the question is which increment causes what broke the 12 camel's back, so to speak. 13 We could live with the drawdown of our local diversions 14 if we didn't have superimposed upon that the drawdown of the 15 export pumps. 16 MR. BIRMINGHAM: But CVP is not responsible for the 17 siltation channels within the South Delta Water Agency, is 18 it? 19 MR. HILDEBRAND: No, I don't contend that CVP is 20 responsible. 21 MR. BIRMINGHAM: I was going to ask you a question that 22 Mr. O'Laughlin had asked you, so I won't, and that question 23 was what the South Delta Water Agency has done to reduce the 24 effects of siltation within channels within the South Delta 25 Water Agency. I believe your testimony was that the South 4060 01 Delta Water Agency really hasn't done anything to reduce the 02 effects of the siltation. 03 Is that correct? 04 MR. HILDEBRAND: That is correct, but I gave the reason 05 that we have neither the authority nor the capability nor 06 the permits we would need to do it. It is not that it 07 isn't desperately needed. 08 MR. BIRMINGHAM: Isn't it correct, Mr. Hildebrand, that 09 the South Delta Water Agency was formed in 1973 for the 10 purpose, in part, of assuring that lands within the South 11 Delta Water Agency have a dependable water supply of 12 suitable quality sufficient to meet present needs? 13 MR. HILDEBRAND: That's right. 14 MR. BIRMINGHAM: Therefore, wouldn't it be correct, Mr. 15 Hildebrand, that, in fact, the South Delta Water Agency 16 would have the statutory authority to dredge channels within 17 its service area if dredging the channels was required in 18 order to assure lands within the agency with a dependable 19 supply of water of suitable quality sufficient to meet 20 present needs? 21 MR. HILDEBRAND: I would leave that to the attorney. 22 MR. HERRICK: Mr. Hildebrand can certainly answer to 23 the best of his knowledge, but I want to make sure that the 24 record reflects if that is seeking a legal opinion, that 25 this is not the correct witness for that. 4061 01 C.O. CAFFREY: I will allow the witness to answer the 02 question. 03 MR. HILDEBRAND: I don't believe we have the authority, 04 but I am not a legal, don't have the legal knowledge to say 05 that definitively. 06 MR. BIRMINGHAM: Actually, you don't know whether or 07 not the South Delta Water Agency has the legal authority to 08 implement a program of dredging channels in its service area? 09 MR. HILDEBRAND: It is my opinion that we do not. 10 MR. BIRMINGHAM: You have just acknowledged that that 11 is a legal opinion and you are not a lawyer? 12 MR. HILDEBRAND: I am not a lawyer. Thank goodness. 13 MEMBER DEL PIERO: Right to the heart. 14 MR. BIRMINGHAM: You also said in response to Mr. 15 O'Laughlin's question that the South Delta Water Agency 16 doesn't have the power to tax; is that correct? 17 MR. HILDEBRAND: No, I don't think I said -- I don't 18 recall saying that. We have the power to tax for certain 19 purposes and within certain limits. 20 MR. BIRMINGHAM: And you have the power to tax or to 21 impose assessments to undertake activities necessary to 22 ensure dependable water supply; is that correct, Mr. 23 Hildebrand? 24 MR. HILDEBRAND: Within the limitation that we cannot 25 assess more than a certain amount of money which is proving 4062 01 less and less sufficient. 02 MR. BIRMINGHAM: What is the basis of that limitation? 03 MR. HILDEBRAND: There was a statutory limitation which 04 I believe is $250,000 a year, and that became further 05 degraded because we didn't assess the full 250,000 and 06 Proposition 218 came along and capped us where we were. 07 MR. BIRMINGHAM: Now, Mr. Hildebrand, you have 08 indicated that the tidal barriers will result in elevated 09 water levels in the channels within the South Delta Water 10 Agency; is that correct? 11 Let me restate the question because that was not a very 12 good one. 13 Operation of the tidal barriers will result in elevated 14 water levels in the South Delta Water Agency channels? 15 MR. HILDEBRAND: Yes and no. They will not increase 16 the high tide levels. They will increase the low tide 17 levels. 18 MR. BIRMINGHAM: As the siltation of the channels 19 continue, Mr. Hildebrand, will it be necessary to raise the 20 tidal barriers in order to ensure that in low tide periods 21 there is sufficient water levels in the channels to permit 22 diversions? 23 MR. HILDEBRAND: It would not work because you can't 24 get water in the channels above high tide, anyway. 25 MR. BIRMINGHAM: At some point, something will have to 4063 01 be done about the agridation of the channels within the 02 South Delta Water Agency? 03 MR. HILDEBRAND: Yes. 04 MR. BIRMINGHAM: Mr. Hildebrand, you would agree with 05 me, wouldn't you, that water users should be expected to 06 bear reasonable costs to ensure that other water users would 07 have water available? 08 MR. HILDEBRAND: No, not necessarily. That depends on 09 who has the prior right. 10 MR. BIRMINGHAM: Mr. Hildebrand, let me ask you another 11 hypothetical. Let's assume that there are two water users 12 that are diverting water from the same groundwater basin. 13 One of them is an overlying owner and the other is an 14 appropriator. In order for the groundwater to be put to 15 beneficial use by the appropriator, it would be necessary 16 for the overlying owner to lower his -- the bolts on his 17 wells to 50 feet rather than 40 feet, with the resulting 18 increased cost of pumping water from 50 feet as opposed to 19 40 feet. That water user, the overlying user should be 20 expected to incur that additional cost in order to enable 21 the appropriator to put water to beneficial use; isn't that 22 right, Mr. Hildebrand? 23 MR. HILDEBRAND: No. The overlying landowner has the 24 prior right to lower the appropriator, and the appropriator 25 must not infringe on that right. 4064 01 MR. BIRMINGHAM: And requiring that the overlying owner 02 incur some expense, is an infringement on that right? 03 MR. HILDEBRAND: Yes. 04 MR. BIRMINGHAM: I, too, would like to ask you some 05 questions about the recommendations that you suggested at 06 the conclusion of your testimony, Mr. Hildebrand, South 07 Delta Water Agency Exhibit 39. 08 Typically, Mr. Hildebrand, and I know that may make 09 this question difficult to answer, typically, during what 10 months of the year is it necessary for the Bureau of 11 Reclamation to release water from New Melones Reservoir in 12 order to meet salinity objectives at Vernalis? 13 MR. HILDEBRAND: It can happen any time, depending on 14 the year type from around the 1st of March through September 15 and October. 16 MR. BIRMINGHAM: Let's just assume an average water 17 year, Mr. Hildebrand. Typically, in an average water year 18 when would it be necessary for the Bureau of Reclamation to 19 release water from New Melones in order to meet the salinity 20 objectives at Vernalis? 21 MR. HILDEBRAND: Well, I am not sure I can narrow that 22 down to an average year. It would depend somewhat on 23 whether the average year followed a wet year or whether it 24 followed a critical year, as the amount of salt load coming 25 down the river is influenced by prior years as well as the 4065 01 current year. 02 At least in the years of dry and below normal years, 03 the heaviest demand is likely to be in March and April, but 04 then it continues on through the year. 05 MR. BIRMINGHAM: Is it correct, Mr. Hildebrand, that if 06 the Bureau of Reclamation is releasing water from storage at 07 New Melones Reservoir in order to meet the salinity 08 objectives at Vernalis, then it is at least bypassing the 09 natural flow in the river? 10 MR. HILDEBRAND: Well -- yes, at that time, but the 11 purpose is different. We talk about bypassing natural flow, 12 that is for the purpose of maintaining the summer flow above 13 the ten depletion requirement. We are talking about 14 releasing water to meet the salinity requirement, that has 15 to do with substituting for the Friant water that used to 16 provide that function. Consequently, it really doesn't have 17 to do with whether it is within the current inflow rate. 18 MR. BIRMINGHAM: The first condition that you've 19 recommended to the Board is that the Bureau's ability to 20 export water from the Tracy pumping plant for the State 21 Water Projects Banks Pumping Plant is conditioned upon the 22 existence of sufficient water depth in South Delta channels 23 to support local diversions, the existence of sufficient 24 water in South Delta channels to support local diversions in 25 channel depletions. 4066 01 In the absence of either of these conditions, USBR 02 exports shall decrease until the condition or conditions are 03 met. If the conditions are not met, there is no surplus 04 water available for export as per Water Code Sections 12200, 05 et seq. 06 Mr. Hildebrand, does reducing exports at Tracy or the 07 state pumps make additional water available at New Melones 08 Reservoir? 09 MR. HILDEBRAND: If the export pumps are depriving us 10 of water in the South Delta and that is superimposed on the 11 failure to mitigate the impact of the export of 30 percent 12 of the river system at Friant, then we have a problem. And 13 the exports are inferior in their priority to our water 14 rights and, therefore, their first obligation is to mitigate 15 their impact on us, and if they don't do that, they 16 shouldn't be exporting. 17 MR. BIRMINGHAM: Isn't it correct, Mr. Hildebrand, that 18 a reduction in exports at Tracy does not result in any 19 additional water at Vernalis? 20 MR. HILDEBRAND: Not at Vernalis. But the point is 21 that the problem is partly because the flow at Vernalis has 22 already been substantially reduced, as we discussed, by 23 operations of the CVP. And also it has created an enormous 24 salt load in the river, which we would not have in the 25 absence of the CVP. So the overall requirement is that the 4067 01 CVP and the State Project, to the extent that it is 02 responsible, should mitigate the impacts of their exports, 03 and, if they do not do so, they shouldn't export. 04 MR. BIRMINGHAM: But you have testified a few moments 05 ago, Mr. Hildebrand, that the inability of South Delta Water 06 Agency water users to divert water from channels in the 07 Delta is due in part to a condition for which the CVP has 08 absolutely no responsibility; isn't that correct? 09 MR. HILDEBRAND: That is correct, but again we are 10 looking at what broke the camel's back. If we have the 11 flows we had preceding CVP and you weren't operating the 12 export pumps, we would still have enough water depth in 13 spite of the agridation as of now. Eventually, that could 14 change, but that is still the case at the present time. 15 What has happened is the agridation has greatly 16 diminished the leeway available to the extent to which you 17 can export before you run into the problem. 18 MR. BIRMINGHAM: You have said that if the CVP were not 19 exporting water, that there would be greater flows in the 20 San Joaquin River? 21 MR. HILDEBRAND: That's right. 22 MR. BIRMINGHAM: Mr. Hildebrand, do you think that had 23 the CVP not been constructed that it is reasonable to assume 24 that lands on the west side of the San Joaquin Valley would 25 have been irrigated with water available for appropriation 4068 01 in the San Joaquin River? 02 MR. HILDEBRAND: No. If there were no CVP, a lot of 03 those lands now being farmed would not be farmed. They 04 won't have any water. And getting back to the use of the 05 Friant water or the water out of the upper San Joaquin, 06 prior to the construction of Friant, it is true that they 07 diverted substantial amounts of water. They didn't consume 08 very much of it and it flowed back into the river downstream 09 of their diversion dam. So that as was discovered in the 10 course of preparing the June 1980 report, it didn't actually 11 consume enough water, but what the export of the entire flow 12 resulted in was an additional reduction over what we had 13 previously of 345,000 acre-feet in the summer irrigation 14 season. 15 MR. BIRMINGHAM: The entire export of what flow, Mr. 16 Hildebrand? 17 MR. HILDEBRAND: The flow out of the upper basin of 18 the San Joaquin. 19 C.O. CAFFREY: Mr. Birmingham, while you are pausing, 20 can you give us an idea of how much more time you might need. 21 MR. BIRMINGHAM: I think I have concluded. I was just 22 looking at my notes to make sure that I have concluded. I 23 know Mr. Del Piero has some -- 24 C.O. CAFFREY: Just for everybody's benefit, Mr. 25 Hildebrand was going to -- he said he would be available 4069 01 tomorrow if he had to be. We were going to see if we could 02 accommodate him and get him out of here tonight. Of course, 03 it depends on how much -- if there is any redirect, and if 04 there is, if there is recross, and I don't know how long Mr. 05 Turner needs, and we are not cutting anybody off, as long as 06 this relevant cross-examination goes on. 07 Mr. Turner. 08 MR. TURNER: My cross-examination will probably take a 09 total of about two minutes. 10 C.O. CAFFREY: Let's make sure Mr. Hildebrand 11 [verbatim] is finished and then we will go to you and staff 12 and the Board Members and see if Mr. Herrick has any 13 redirect. 14 MR. BIRMINGHAM: I have no further questions of Mr. 15 Hildebrand at this time. 16 C.O. CAFFREY: Thank you, Mr. Birmingham. 17 I wasn't trying to cut you off, just trying to figure 18 out how much time we need to take tonight versus tomorrow. 19 MR. BIRMINGHAM: If you gave me time, sir, I am sure I 20 could come up with more questions, and that would be a waste 21 of all of our time. 22 C.O. CAFFREY: Mr. Turner. 23 ---oOo--- 24 // 25 // 4070 01 CROSS-EXAMINATION OF SOUTH DELTA WATER AGENCY 02 BY DEPARTMENT OF THE INTERIOR 03 BY MR. TURNER 04 MR. TURNER: Thank you. Jim Turner appearing on behalf 05 of the Department of the Interior. 06 Just a couple of questions for you, Mr. Hildebrand, 07 primarily to straighten the record. 08 I understood in your direct testimony that you had 09 mentioned earlier that you were of the opinion that the 10 Central Valley Project had been authorized by Congress to 11 include a San Joaquin Valley master drain. Was that 12 essentially what you had said? 13 MR. HILDEBRAND: Not necessarily a master drain, but a 14 drain to take out the salt load which resulted from the 15 operations of the CVP. 16 MR. TURNER: I have before me a copy of Section 1 of 17 the San Luis Unit Authorization Act that I believe Mr. 18 Birmingham had made reference to and distributed the other 19 day. Is that the particular authorization you are referring 20 to which was making reference to the commencement of 21 construction of the San Luis unit being contingent on the 22 Secretary getting satisfactory assurance from the State that 23 it was going to construct a master drain, or the Secretary 24 has made provision for constructing the San Luis interceptor 25 drain to the Delta designed to meet the drainage needs of 4071 01 the San Luis unit as generally outlined in the report of the 02 Department of the Interior entitled San Luis Unit Central 03 Valley Project, dated December 17, 1956, as the San Luis 04 Unit Feasibility Report; is that the section you are 05 referring to or is there some other legislation -- 06 MR. HILDEBRAND: I was referring to that and my 07 understanding of what that means. 08 MR. TURNER: So, this would be the language that would 09 identify the scope of the authorization for a CVP San 10 Joaquin Valley drain? 11 MR. HILDEBRAND: Yes. 12 MR. TURNER: I would have no further questions. 13 C.O. CAFFREY: Thank you, Mr. Turner. 14 Do the staff have questions? 15 Mr. Howard. 16 ---oOo--- 17 CROSS-EXAMINATION OF SOUTH DELTA WATER AGENCY 18 BY STAFF 19 MR. HOWARD: Mr. Hildebrand, in past proceedings the 20 Board has adopted a term called Term 93, which restricts 21 upper stream diversions when the salinity objective at 22 Vernalis is not being met. 23 I notice that you haven't mentioned that term in any of 24 your testimony. Do you no longer believe or do you believe 25 that that term is unnecessary or irrelevant to this 4072 01 proceeding? 02 MR. HILDEBRAND: I believe it is being ignored. And I 03 also doubt that it's adequate to correct the problem. 04 Because, as I recall it, it has been some time since I read 05 it, it applies only to appropriators subsequent to some 06 specific date, and wouldn't necessarily apply to the 07 pre-1914s. 08 MR. HOWARD: You also have a term that you recommend 09 that says that at any time the flow a Vernalis is less than 10 the channel depletion requirements of the South Delta, all 11 natural flows shall be passed through or by the permittee. 12 In the past you have submitted some exhibits that gave us 13 some indication of what you felt were the channel depletion 14 requirements of the South Delta. Are those being submitted 15 again as part of this proceeding or have they been submitted 16 as part of this proceeding? 17 MR. HILDEBRAND: I don't recall if we have submitted 18 them again. Our feeling is that the minimum that they would 19 have to do is to bypass unimpaired flow at those times. But 20 we also believe that we probably have a further right to 21 return flows to augment that up to the full channel 22 depletion requirement. 23 MR. HOWARD: Do you have any -- could you -- I don't 24 know if it is possible. Could you give us an estimate of 25 what those channel depletion requirements are? 4073 01 MR. HILDEBRAND: Oh, yes. In fact, we have submitted 02 those to you. I just don't know whether we did it in this 03 proceeding. 04 MR. HOWARD: That was the issue. How can they submit 05 those? 06 MS. LEIDIGH: They could submit them to us in response 07 to -- 08 C.O. CAFFREY: Ms. Leidigh, you need to use the mike. 09 MS. LEIDIGH: I think that if we have them here, Mr. 10 Howard could ask you questions about them, and we could 11 offer them as a staff exhibit in connection with the 12 cross-examination. 13 MR. HERRICK: May I comment on that, please? 14 C.O. CAFFREY: Go ahead, Mr. Herrick. 15 MR. HERRICK: Those same calculations, we can do it 16 again, were submitted prior to the development of the EIR 17 for the purposes of the Draft EIR. They are in the Draft 18 EIR. If you would like, maybe in the rebuttal case at the 19 end of this phase, we will resubmit it, if you like. We are 20 not trying to deprive anybody of cross-examination. 21 MR. HOWARD: My recollection is I have seen several 22 different versions of the channel depletions. Are the ones 23 that you are referring to in this term the ones that are in 24 the Draft EIR? 25 MR. HILDEBRAND: Yes. 4074 01 MR. HERRICK: I believe so. 02 MR. HOWARD: Thank you. 03 C.O. CAFFREY: That satisfies the need, Mr. Howard? 04 MR. HOWARD: Yes. 05 C.O. CAFFREY: Thank you, sir. 06 MR. BIRMINGHAM: Excuse me, Mr. Caffrey. 07 C.O. CAFFREY: Mr. Birmingham. 08 MR. BIRMINGHAM: One thing that I failed to do is I 09 wonder if I could ask Mr. Herrick to provide to us a copy of 10 the 1980 report which has been marked for identification as 11 South Delta Water Agency Exhibit 48. 12 MR. HERRICK: The reason I didn't send it to everybody 13 is I understood that an official government publication 14 could be incorporated by reference. I am not trying to back 15 out. I have a number of copies in my office. But I avoided 16 making 120 copies of this document. 17 MR. O'LAUGHLIN: Chairman Caffrey. 18 C.O. CAFFREY: Yes. 19 MR. O'LAUGHLIN: Could I be heard on this as well? 20 For those of us who have not been practicing in this 21 area for more than 20 years, it is very difficult to get our 22 hands on this document. I took Mr. Hildebrand's deposition, 23 and have looked long and hard to obtain this document and 24 have been unable to do so. Even though they can refer to it 25 by reference as an official public document, it deprives all 4075 01 the other parties of the due process right, to try to get 02 the document, review the document and prepare for 03 cross-examination or rebuttal without having the document 04 present. 05 C.O. CAFFREY: I think the general regulation with 06 regard to government documents assumes that they are readily 07 available. If the document is not readily available, then 08 maybe we need to make some accommodation to people. 09 C.O. CAFFREY: Mr. Godwin. If you will just yield -- 10 Mr. Del Piero. 11 MEMBER DEL PIERO: I have a question of the 12 representative from South Delta. Is a copy of that document 13 available in your files? 14 C.O. CAFFREY: He says he has several -- 15 MEMBER DEL PIERO: Is a copy of that document available 16 in the files of the South Delta Water Agency? 17 MR. HILDEBRAND: Oh, yes. 18 MEMBER DEL PIERO: State law requires that document to 19 be made available to anybody who picks up the phone and 20 calls that agency. So somebody couldn't have been looking 21 too hard. 22 MS. LEIDIGH: Mr. Caffrey. 23 C.O. CAFFREY: Yes. 24 MS. LEIDIGH: Staff also offered that particular 25 document as a staff exhibit, and it has been accepted in the 4076 01 record. Staff does have a copy of it which was offered by 02 reference and accepted. Parties could also get a copy from 03 staff, but they would have to pay the cost of copying. 04 C.O. CAFFREY: I didn't think I heard anybody objecting 05 to -- this is the first I heard of the issue of payment. 06 But the emphasis Mr. O'Laughlin was making was that he just 07 couldn't get ahold of a copy, whether he had to pay for it 08 or not. 09 MEMBER DEL PIERO: State law also specifies that the 10 cost for duplication services by a state or local 11 governmental entity as to the actual cost of duplication, 12 there is not even an administrative charge levied on that. 13 The law went into effect about 24 months ago. 14 C.O. CAFFREY: I am sorry, Marc, I didn't hear the 15 last part. 16 MEMBER DEL PIERO: All the agency can charge for the 17 duplication of the document is the actual copying cost. 18 C.O. CAFFREY: Thank you. 19 Mr. Godwin, I didn't recognize you yet, did you have 20 something to add? 21 MR. GODWIN: No. 22 C.O. CAFFREY: Is there anybody who does not know how 23 to get a copy of this document? 24 Mr. Birmingham. 25 MR. BIRMINGHAM: I certainly know how to get a copy of 4077 01 it. I am not saying that I searched high and low for it. I 02 did look through our files in prior water rights hearings 03 and wasn't able to find it. The reason I am asking for it 04 today is because I would like to have a copy. So I am 05 asking Mr. Herrick make it available to us. We are 06 certainly happy to pay him the costs of copying. 07 C.O. CAFFREY: He has agreed to do so, I believe. Mr. 08 Herrick, if that is correct? 09 MR. HERRICK: Certainly. 10 C.O. CAFFREY: If I heard you a moment ago. I believe 11 that Ms. Leidigh stated that the State Board staff will make 12 copies available as well. 13 Thank you. 14 Okay. We now go to questions from the Board Members. 15 Mr. Del Piero. 16 MEMBER DEL PIERO: Thank you. 17 C.O. CAFFREY: I am sorry, did we complete with the 18 staff? I apologize. 19 MR. HOWARD: We are fine, thank you. 20 C.O. CAFFREY: Mr. Del Piero. 21 MEMBER DEL PIERO: Thank you very much, Mr. Chairman. 22 ---oOo--- 23 CROSS-EXAMINATION OF SOUTH DELTA WATER AGENCY 24 BY BOARD MEMBERS 25 MEMBER DEL PIERO: Mr. Hildebrand, I would like to ask 4078 01 you some questions about drainage and salt and selenium and 02 TDS. Do you know or generally have an idea of the range of 03 drainage water that would flow in a San Luis drain from the 04 area that would be served or at least proposed to be served 05 historically? 06 MR. HILDEBRAND: Are you including Westlands or only 07 those portions that drain into the river? 08 MEMBER DEL PIERO: No, I'm including Westlands as 09 well. 10 MR. HILDEBRAND: Bill Johnston could give you a better 11 number than I can. 12 MEMBER DEL PIERO: I can't get that. 13 MR. HILDEBRAND: I will give you a rough idea. 14 MEMBER DEL PIERO: I tried that. I've got you. 15 MR. HILDEBRAND: The people who are receiving the DMC 16 water deliveries, which is the source of the salt after it 17 is first leached, are being coerced into a ridiculously low 18 leach ratio. Consequently, the volume of their drainage is 19 very small, less than 10 percent of what is delivered to 20 them. I believe they typically have no more than two and a 21 half acre-feet per acre. And some, presumably, a tenth of 22 that per acre would be more than the amount of the drainage 23 volume. Now, that is a lot less than the volume that was 24 discussed in early days when they were talking about a 25 valley drain coming down because they weren't being forced 4079 01 to use such enormous application efficiencies. 02 But at present time, if you take 500-and-some acres, in 03 Westlands and 90,000 in the other, the Panoche and that area 04 in there, say 600,000 total, it would seem to me that the 05 volume would be something less than 60,000 acre-feet a 06 year. And that that could be brought down to the Delta, the 07 western Delta. It could be treated at that point, and you 08 would then be able to dispose of the salt because you are 09 near enough to the ocean so you could pipe it into the ocean 10 or you could get rid of it in some other manner. And then 11 the water that had been treated could be used for Delta 12 outflow and save the need to provide Delta outflow from 13 Shasta and other reservoirs. 14 MEMBER DEL PIERO: Let me ask a couple more details in 15 terms of that scenario, because you had anticipated what I 16 was going to ask. In terms of that type of project, a 17 discharge as has traditionally been anticipated for a San 18 Luis drain, i.e., all the waste going directly into the 19 Delta or going directly into the Bay or going directly into 20 some out-of-basin discharge point in the ocean, would not 21 then be necessary to, because that majority and not all of 22 the water could, in fact, be treated and recovered? 23 MR. HILDEBRAND: I believe that is the case. I also 24 believe it would be possible to increase the salinity to a 25 higher level which would give you less volume and then pipe 4080 01 it out and put in the Japanese current or something. I am 02 not sympathetic with putting in the under water canyon in 03 the Monterey Bay. 04 MEMBER DEL PIERO: That is a good answer. 05 What are one of the beneficial uses the water could be 06 put to given the potential treatment of reverse osmosis at 07 that point? 08 MR. HILDEBRAND: Oh, depending on how far you want to 09 go, you could do practically anything. 10 MEMBER DEL PIERO: Could you use it for irrigation 11 purposes to supplant service being provided either by the 12 CVP or by the State Project? 13 MR. HILDEBRAND: Yes. In fact, some of us believe that 14 some of the water shortage in the state could be resolved by 15 reverse osmosis of brackish waters, both north and south 16 state, and then reuse of that water. 17 MEMBER DEL PIERO: Let me ask you the 18 larger-than-$60,000 question. Given what you know about 19 those agencies in the state that have responsibility, those 20 agencies within the state, that doesn't mean just state 21 agencies, but all of those agencies within the State of 22 California that have some degree of responsibility 23 ultimately in terms of water quality, whether it be 24 regulatory or regulated agencies, who do you believe should 25 be considered seriously as a potential funding source for 4081 01 the construction of such a treatment facility in order to 02 guarantee water quality protection in the Delta? 03 MR. HILDEBRAND: Well, it is my understanding, as we 04 discussed a few minutes ago, that the Bureau of Reclamation 05 was authorized to build this facility, and that they levied 06 a fee against those people receiving DMC water to pay for 07 it, and then never used that money for that purpose. So 08 that would be the first place I would look to, would be to 09 have them make good on the use of the moneys they have 10 already collected. 11 Beyond that, I would assume it would be to a large 12 degree Department of Interior responsibility. 13 MEMBER DEL PIERO: Would you -- you indicated earlier 14 during the course of your testimony, you will forgive me for 15 not being here for all of your testimony yesterday, but I do 16 understand and I believe I heard you mention at least once, 17 I think you mentioned it twice, that in terms of our 18 Environmental Impact Report that you were going to be 19 submitting some alternative proposals; is that correct? 20 MR. HILDEBRAND: Yes. 21 MEMBER DEL PIERO: Would you believe it to be prudent 22 as part of the overall environmental review of this hearing 23 that consideration of a drain with not a discharge terminus, 24 but a terminus at a treatment plant that would be able to 25 recover water and put it to beneficial use should, in fact, 4082 01 be one of the alternatives evaluated as far as the 02 environmental review? 03 MR. HILDEBRAND: I believe so. We did not put that in 04 our proposal alternative just because of the politics of the 05 thing. But I think it is absolutely essential that that be 06 done in the long run. 07 MEMBER DEL PIERO: The one interesting thing about CEQA 08 is it is supposed to, at least the Legislature intended it 09 to be, devoid of politics in terms of evaluation of 10 environmental alternatives. 11 MR. HILDEBRAND: That is right. 12 MEMBER DEL PIERO: Mr. Hildebrand, thank you very 13 much. 14 MR. HILDEBRAND: You're welcome. 15 C.O. CAFFREY: Any other questions from the Board 16 Members? 17 Mr. Stubchaer. 18 C.O. STUBCHAER: To follow on Mr. Del Piero's. 19 MEMBER DEL PIERO: I'd figure it'd generate some 20 questions. 21 C.O. STUBCHAER: Would the treatment plant that you and 22 Mr. Del Piero were discussing remove all the salt from the 23 waste stream or would it be just certain components like 24 selenium, or have you thought about that? 25 MR. HILDEBRAND: There is some capability of removing 4083 01 selenium selectively. I read just recently that Exxon has 02 now a working system of removing it from their discharge to 03 the Bay, which at least apparently was economic for them. 04 I think that is a potentially feasible thing to do. 05 Just how we should handle selenium, I think, is somewhat of 06 a separate issue. You might segregate those drainage waters 07 that are high in selenium and handle them separately from 08 the rest of the drainage flow. But so far as the rest is 09 concerned, if you did as I suggested and use it for Delta 10 outflow and thereby save fresh, better water from that use, 11 you would really only have to get it down to the salinity of 12 the receiving waters and reduce any toxic ions also to those 13 levels. 14 It has been our observation that except for selenium, 15 in general, if you reduce the salinity far enough you also 16 reduce the boron and other things far enough to be within 17 limits. 18 C.O. STUBCHAER: Thank you. 19 C.O. CAFFREY: Thank you, Mr. Stubchaer. 20 Please, Mr. Del Piero. 21 MEMBER DEL PIERO: Just one last question, Mr. 22 Hildebrand. If you didn't use it for Delta outflow, could 23 it, in fact, be marketed for potable purposes? 24 MR. HILDEBRAND: Oh, it could be treated sufficiently 25 to do that, yes. 4084 01 MEMBER DEL PIERO: If, in fact, it could be treated 02 sufficiently to do that, that might, in fact, offset part of 03 the treatment costs? 04 MR. HILDEBRAND: Yes. 05 MR. BIRMINGHAM: Mr. Chairman, I would like -- 06 C.O. CAFFREY: We will get to you, Mr. Birmingham. 07 Mr. Stubchaer has something. 08 Go ahead, Mr. Stubchaer. 09 C.O. STUBCHAER: Follow-up question. The last 10 follow-up question, anyway. 11 C.O. CAFFREY: Or the last series of follow-up 12 questions. 13 C.O. STUBCHAER: Mr. Hildebrand, would you see any 14 difference between putting an equal amount of salt into the 15 ocean or the outflow with just the concentration of that 16 salt varying? In other words, if you salvage the water, but 17 you still have to deal with the salt? 18 MR. HILDEBRAND: That's right. 19 C.O. STUBCHAER: Is that a greater or less problem, in 20 your opinion, than to try to put more diluted solution into 21 the ocean or the Bay or the outflow or wherever it is going 22 than the undiluted solution? 23 MR. HILDEBRAND: I think it depends on how you do it. 24 I believe if you have a concentrated solution, even if it is 25 concentrated above the level of salinity in the ocean of 4085 01 35,000 parts per million, if you piped it over, having been 02 a rather low volume, and discharge it in the Japanese 03 current, it could be dispersed very rapidly back down to the 04 salinity of the ocean salinity. But you might not even need 05 to. 'Cause by the time you get up to 35,000 parts per 06 million, TDS your volume is going to be down pretty well, 07 anyway. 08 The reason I mention doing this, not down the valley 09 somewhere, you do indeed have to get rid of the salt. 10 C.O. CAFFREY: Thank you. 11 Mr. Birmingham, did you have something? 12 MR. BIRMINGHAM: I would like to make a motion to 13 reopen my cross-examination of Mr. Hildebrand. The basis of 14 my motion is that a number of questions have been asked by 15 the Board Members in their cross-examination, and I would 16 like to inquire. It will take less than five minutes. 17 C.O. CAFFREY: You were going to say something, Ms. 18 Leidigh? Just a minute, Mr. Birmingham. 19 MS. LEIDIGH: I was just going to suggest that perhaps 20 it would be more orderly to allow Mr. Herrick now to do his 21 redirect and then to deal with this on recross since Mr. 22 Birmingham did not have a chance to -- 23 C.O. CAFFREY: The problem with that is Mr. Herrick may 24 not have any redirect. And if we make that decision now, 25 then it forecloses any possibility to Mr. Birmingham. 4086 01 I think the more important question -- 02 Go ahead, Mr. Jackson. 03 MR. JACKSON: I was just going to say if we are going 04 to reopen the cross for Mr. Birmingham, I may very well have 05 some questions I would like to ask. 06 C.O. CAFFREY: Somehow I knew you were going to point 07 that out. Here is the ruling. I would prefer to do this. 08 We all have the opportunity to rebut, you know, and I think 09 that would be the vehicle in this instance. 10 We, Board Members, have wide discretion to ask the 11 questions they want to ask. We are the judges. We ask. I 12 think Mr. Del Piero asked relevant questions. I understand 13 your concern, Mr. Birmingham, but you will have other 14 opportunities to do that. 15 Did you wish another comment? You probably do, but I 16 understand. 17 MR. BIRMINGHAM: I do have another comment. I agree 18 that Mr. Del Piero's questions are highly relevant. Part of 19 the reason I note we are doing this is because Mr. Del Piero 20 will not be here later. Part of the reason that I made a 21 motion to reopen my cross-examination rather than for 22 waiting to put it on rebuttal, so that Mr. Del Piero, who 23 apparently has a keen interest in this issue, would hear the 24 examination. 25 MR. NOMELLINI: Read the transcript. A lot of this 4087 01 hearing, Mr. Chairman, that Mr. Bell is not a party to. 02 C.O. CAFFREY: Could you speak a little louder, Mr. 03 Nomellini. 04 MEMBER DEL PIERO: You are correct. I can review the 05 transcript. You are absolutely correct. 06 MR. NOMELLINI: Dante John Nomellini for Central Delta 07 party. I am being very technical about it. There is a lot 08 of this hearing that we don't have all the Board Members 09 present on, including Mr. Del Piero, that we are depending 10 on his reading of the record. 11 C.O. CAFFREY: That's correct. 12 MR. NOMELLINI: For that reason, for that argument 13 presented by Mr. Birmingham, I think it would not serve as a 14 proper basis for your decision unless we addressed all the 15 rest of it. 16 C.O. CAFFREY: Mr. Del Piero. 17 MEMBER DEL PIERO: I appreciate Mr. Birmingham's 18 willingness to do that. I will be satisfied with reviewing 19 the record, candidly. I think I have asked those questions, 20 Mr. Chairman, that I wanted to ask. I've gotten enough 21 information in the evidentiary record at this point to, at 22 least, address that and to raise the issue as to whether or 23 not it was appropriate to have it evaluated as part of the 24 long-term environmental review. The issue, as far as I am 25 concerned, is not over. It is just starting. I will be 4088 01 happy to review all the record, all the comments, all the 02 testimony and any questions that anyone wishes to ask 03 subsequently, as well as any documents or evidence that 04 anybody wishes to submit into the record in regards to this 05 issue. 06 Mr. Birmingham is correct. This is a significant 07 issue. It is a significant issue for me. It is a 08 significant issue for Westlands. It is a significant issue 09 for the San Joaquin Valley. It is not an issue that anybody 10 takes very lightly. The thing about it is there may be a 11 solution that isn't normally thought about in terms of 12 inside the box, and maybe now is the time for us to go to 13 another box to look for another solution that may generate a 14 win-win-win for everybody. 15 That is all my comments. 16 C.O. CAFFREY: Thank you, Mr. Del Piero. I didn't hear 17 anything contrary, any comments from the Board Members 18 contrary to the ruling I made. The ruling stands. 19 The question now is to Mr. Herrick. Mr. Herrick, do 20 you have redirect? 21 MR. HERRICK: I will just like to let Mr. Alex -- 22 MR. JACKSON: Now we know why he is the lawyer and he 23 is the witness. 24 MR. HERRICK: Could I move to strike my prior statement? 25 MEMBER DEL PIERO: Let me introduce you to Mr. 4089 01 Hildebrand. 02 C.O. CAFFREY: Mr. John, Mr. Alex. 03 MR. HERRICK: I have no redirect. 04 C.O. CAFFREY: It is very late in the day, Mr. 05 Herrick. 06 MR. HERRICK: Mr. Chairman, I will say that, of course, 07 Mr. Hildebrand will be available for virtually every other 08 day we are here. And if somebody wants to call him as an 09 adverse witness, all they have to do is give us a minimum 10 amount of warning. It's just that he won't be here 11 tomorrow. 12 C.O. CAFFREY: We appreciate your reminding us of that, 13 Mr. Herrick, and there may be people who wish to avail 14 themselves of that right. 15 That then being the situation, we are close to the end 16 of the presentation of your case in chief. Do you wish to 17 offer your exhibits into the record, then? 18 MR. HERRICK: Yes. South Delta would like to offer 19 Exhibit 39, which is the written testimony of Mr. Hildebrand 20 for Phase V; Exhibit 40, which is a compilation of 21 correspondence between the Bureau and State Board regarding 22 Vernalis violations; 41 and 42 are South Delta exhibits that 23 were entered into the evidence in the 1976 hearings; 43, 44 24 and 45 are transcripts of those hearings; 46 is documentary 25 evidence in those same hearings, although offered by the 4090 01 University of California and discussed in those transcripts 02 that I just referenced; 47 is a later bit of evidence 03 provided by the South Delta in the 1981 triennial review of 04 those D-1485; 48 is the 1980 report on the affect of the CVP 05 on the Delta; and we are not offering 49. 06 With that, I would like to offer those into evidence. 07 C.O. CAFFREY: Thank you, Mr. Herrick. 08 Ms. Leidigh. 09 MS. LEIDIGH: Except for Exhibit 46, that matches up 10 with what we have. We do not have a copy of Exhibit 46, or 11 if we do we do nor know where it is. And part of our 12 requirements for accepting evidence by reference is that the 13 location in our files be identified. Consequently, I think 14 I have to recommend at this point, unless we promptly 15 acquire a copy, that we -- that the Board not accept Exhibit 16 46. 17 C.O. CAFFREY: There is no reason, is there, that we 18 can withhold on that and then if we get that reference or 19 identification that we can accept that at a later date? 20 MS. LEIDIGH: I think you could accept it at a later 21 date, but not at this time. 22 C.O. CAFFREY: I am not sure I fully understand the 23 problem. It's the lack of a copy or is it the lack of a 24 proper identification in what file? What are we talking 25 about? 4091 01 MS. LEIDIGH: It would be either or. Given -- well, it 02 is something that should have been in our files, but it 03 hasn't been identified as to where it is. 04 C.O. CAFFREY: This sounds to me -- 05 MS. LEIDIGH: He could make this up alternatively by 06 giving us a copy for our current hearing record. But one or 07 the other needs to be done. 08 MR. HERRICK: I will submit everything but 46 and I'll 09 get a copy of 46, and we will do that at a later date. 10 C.O. CAFFREY: That is fine. Thank you, Mr. Herrick. 11 Is there any objection from anybody regarding 12 acceptance of these exhibits? 13 First, Mr. Godwin. 14 MR. GODWIN: I would like to object to the introduction 15 of Exhibits 41, 42, 43, 44, 45 and 46 on a couple of 16 grounds. One is that the regulations require that an 17 original or a copy be in the possession of the State Board 18 and its exact file or other location be identified. Mr. 19 Herrick has not identified those exhibits. Furthermore, as 20 we just heard from Ms. Leidigh, Exhibit Number 46 isn't even 21 in possession of the Board. 22 We talked to your staff the other day about the other 23 exhibits, they weren't quite sure where those were located 24 in their files. I think they have located them by now. 25 Secondly, the regulations also ask, although it is not 4092 01 required, but parties encouraged to submit copies of the 02 portions of such documents that they are relying on. Here 03 we introduced, especially in Exhibits 41, 42 and 46, all 04 exhibits. We don't know which portion of that South Delta 05 Water Agency is referring to. 06 Also, parties that are requesting the documents be 07 incorporated by reference are also encouraged to make copies 08 available to the Board and other parties, and we have not 09 had a copy made available to us. 10 Finally, I would like to object because I fail to see 11 the relevance of these documents. These supposedly are 12 covering crop requirements for salinity, I believe. 13 Although, having not seen the documents, I don't know what 14 is in them. The scope of this hearing and of this phase is 15 regarding responsibility for meeting the salinity 16 objectives. We have already heard about what crops need in 17 the 1995 Water Quality Control Plan and in earlier hearings. 18 I fail to see the relevance of what salinity requirements 19 are for crops in this particular hearing. 20 C.O. CAFFREY: Thanks, Mr. Godwin. Let's take these 21 one at a time. 22 I will get you, Mr. Campbell. 23 I will hear from you first, Mr. Herrick, and then I 24 will ask Ms. Leidigh. 25 MR. HERRICK: In reverse order. The relevance issue, 4093 01 the Board is considering whether or not to institute the 02 interior Delta standards which exist but nobody is ordered 03 to meet them. It is certainly relevant to introduce the 04 evidence that shows there is damage by not doing that. 05 With regard to the other objections, I am not sure which 06 of those we don't follow through. This stuff was submitted, 07 what, a month and a half ago. Nobody has asked me for 08 copies. I informed everybody it was being incorporated by 09 reference, and I supplied the State Board with copies. So, 10 it is in their file. It is identified in their file, and 11 nobody asked me to give them any copies because they 12 couldn't find them. 13 C.O. CAFFREY: Thank you, Mr. Herrick. 14 Ms. Leidigh, understand your statement on Number 46. 15 As far as the relevancy is concerned, I will deal with that 16 unless you have a comment. You don't need to. 17 With regard to the other references that Mr. Godwin 18 made, do you have any advice for the Board? 19 MS. LEIDIGH: The other statements that Mr. Godwin made 20 that our rules require that the portions be identified, 21 portion of the document be identified, that the party is 22 relying on and that the location in the record be 23 identified, those are in our requirements. I do not see 24 those identified in the Exhibit Identification Index. And, 25 in fact, to be absolutely correct, the Exhibit 4094 01 Identification Index should have specified where those are 02 in the Board records and should have specified which pages 03 they were relying on. 04 So, I think Mr. Godwin does have a valid objection. I 05 think the Board also has discretion here that it could 06 exercise on whether or not to accept this, since some things 07 have taken place since we received the Exhibit 08 Identification Index. 09 C.O. CAFFREY: Mr. Stubchaer has a question. 10 C.O. STUBCHAER: Can that omission be cured by 11 submitting that information now? I wonder if any party has 12 been deprived of the opportunity to refer to them since no 13 requests were evidently made for those documents. That is 14 the question, Ms. Leidigh. 15 MS. LEIDIGH: I think that is a good question and, 16 perhaps, the Board should raise that to the parties and see 17 if anybody feels that they have been deprived of an 18 opportunity. 19 C.O. CAFFREY: Does anybody wish to join in Mr. 20 Godwin's objection on the basis of having been deprived of 21 the opportunity to fully understand the evidentiary exhibits? 22 MS. ZOLEZZI: No, prior to the contrary, Chair. One 23 thing that I just wanted to mention that I think will be 24 coming up again and again as a problem is the requirement 25 that the parties specify the exact location in the Board 4095 01 records, where these documents are located. The problem is 02 we can't either find the Board's records in order to do that 03 because when we go to look for the files, they are gone on 04 an individual's desk, and we can't locate them despite our 05 best effort. And even some files are located, it is very 06 difficult to describe the location. 07 What we have done when we can identify the location is 08 offer to provide a copy to other parties, which is all that 09 can be done. 10 C.O. CAFFREY: Thank you for that, Ms. Zolezzi. That 11 is a point of some concern. 12 Ms. Whitney. 13 MS. WHITNEY: We have received a number of exhibits by 14 reference, and I have directed the staff to look through the 15 files to see if we can locate them, even if the specific 16 location was not identified on the exhibit list. We have 17 located the ones that we can find. The files for this 18 particular file take up several shelves of a couple 19 different lectrevers. So it is a difficult process at best. 20 They are filed in several different locations. 21 What we have been doing is contacting the parties who 22 have submitted the documents by reference ahead of time, and 23 ask them to provide us with copies. 24 Mr. Herrick did that. He was contacted. Ms. Zolezzi 25 has been contacted. Everybody has been pretty amenable to 4096 01 doing that. And with a couple of exceptions, we've got 02 copies of most of the referenced exhibits at this point and 03 can provide to the other parties upon request. Granted, 04 that they have to pay for the copying costs. 05 C.O. CAFFREY: Is it on Mr. O'Laughlin? 06 MR. O'LAUGHLIN: Yes. 07 C.O. CAFFREY: Go ahead, Mr. O'Laughlin. 08 MR. O'LAUGHLIN: On this point I am not so much 09 concerned about where the documents are located or whether 10 copies are made. I think the important point or one of the 11 most important points in the regulation, though, is to 12 identify what part of the document you are going to 13 reference or use in your case. As Ms. Whitney has 14 identified, these documents that are identified take up 15 shelves and shelves. So the burden is being put on other 16 parties to find out which straw is in that haystack that we 17 are going to have to look at in regard to the testimony that 18 is being submitted by reference. 19 I think it is only incumbent upon the party that is 20 putting the documents in by reference to at least identify 21 the pages or the transcript or the testimony that they are 22 specifically going to be relying upon. 23 C.O. CAFFREY: Let me ask you a question, Mr. 24 O'Laughlin. Has there been difficulty for you up to now or 25 are you expressing a general concern about just the future 4097 01 of this proceeding? 02 MR. O'LAUGHLIN: Mr. Godwin handled this on behalf of 03 San Joaquin River Group. We initially identified that, A, 04 documents couldn't be located and then when they were 05 located, we understood that there are numerous documents, 06 and we can't figure out which one of those documents we 07 should be looking at. 08 C.O. CAFFREY: Let me ask Mr. Herrick a question so we 09 can deal with this. 10 Mr. Herrick, would you able to resubmit your list of 11 exhibits with some improvement on the specificity as to what 12 portions of the exhibits you are using? 13 MR. HERRICK: I certainly can, Mr. Chairman. However, 14 I listed all the pages or the exhibit number and none of 15 those exhibits were very long, and it's not part of them, 16 it's the information in the exhibit. They are not all this 17 size of the 1980 report. But I can do anything you want. 18 C.O. CAFFREY: I want to give everybody the opportunity 19 to comment on this. I didn't hear anybody stand and say 20 that they were caused serious harm by this. I've heard 21 reasons as to which they are sometimes unavailable as to the 22 difficulty of locating the documents from time to time. 23 They eventually are available. I was about to rule, but I 24 won't cut you off, Mr. Birmingham. Go ahead. 25 I am sorry, I will get to rule on this. Maybe we will 4098 01 hear from Mr. Campbell first. 02 Mr. Birmingham, go ahead. 03 MR. BIRMINGHAM: I have no problem. I have no 04 comment. 05 C.O. CAFFREY: Mr. Campbell. 06 MR. CAMPBELL: I would like to object to one very small 07 portion of SDWA Exhibit 39, which is the testimony of Alex 08 Hildebrand for Phase V, one sentence. The sentence that 09 reads: 10 This is so in spite of the testimony of a 11 biologist in Phase II that little, if any, 12 correlation exists between flows in salmon 13 smolt survival. (Reading.) 14 I would like to direct the Board's attention to DOI 15 Exhibit 1, the written testimony of Pat Brandes, biologist, 16 who testified in Phase II as part of the panel, and also at 17 least of her oral testimony which is the July 21st 18 reporter's transcript, Pages 866 to 876. 19 Upon a review of those materials, I believe you will 20 find that at least Ms. Brandes testified that a correlation 21 does exist between flows and salmon smolt survival. 22 Accordingly, this statement misstates prior testimony within 23 this proceeding. 24 One reason that I raise this point is that I am 25 concerned that in future phases of this hearing, in 4099 01 particular in Phase VIII, we can get into a very messy 02 record situation if parties are allowed to misstate earlier 03 testimony from earlier phases of the proceeding. So I am 04 asking for the Board to rule on my objection by striking 05 this sentence from Mr. Hildebrand's testimony, Exhibit 39. 06 C.O. CAFFREY: Thank you, Mr. Campbell. 07 I do recall in your cross-examination you raised this 08 issue when you questioned the witness. I am not going to 09 strike it from the direct testimony because it is right or 10 wrong even from a record point of view the individual's 11 statement. We will, as I have always said, the Board 12 Members have your statement on the record. We are aware of 13 the situation, and it goes to us to give the appropriate 14 weight of evidence. 15 So, thank you for your comment. It is on the record. 16 I am going to accept the evidentiary exhibits, after 17 hearing all the arguments, except for 46, which will be 18 clarified by conversation between Mr. Herrick and Ms. 19 Leidigh. When we get the reference clarified or the copy 20 that we need, we can take it up tomorrow morning or whenever 21 you are ready to offer it, Mr. Herrick. 22 The exhibits are now in the record, they are accepted. 23 Anything else with regard to this case in chief? 24 MR. HERRICK: That completes South Delta's case in 25 chief for Phase V. 4100 01 C.O. CAFFREY: Thank you, Mr. Herrick, Mr. Hildebrand. 02 We will be back tomorrow morning at 9:00 to continue 03 with the Contra Costa case in chief. 04 Thank you all. 05 (Hearing adjourned at 4:45 p.m.) 06 ---oOo-- 07 08 09 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4101 01 REPORTER'S CERTIFICATE 02 03 03 STATE OF CALIFORNIA ) 04 ) ss. 04 COUNTY OF SACRAMENTO ) 05 05 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 3879 through 14 4101 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 9th day of October 1998. 19 20 21 22 22 23 ______________________________ 23 ESTHER F. WIATRE 24 CSR NO. 1564 24 25