STATE WATER RESOURCES CONTROL BOARD PUBLIC HEARING 1998 BAY-DELTA WATER RIGHTS HEARING HELD AT 901 P STREET SACRAMENTO, CALIFORNIA WEDNESDAY, OCTOBER 14, 1998 9:00 A.M. Reported by: MARY GALLAGHER, CSR #10749 CAPITOL REPORTERS (916) 923-5447 1 APPEARANCES ---oOo--- 2 3 BOARD MEMBERS: 4 JOHN CAFFREY, CO-HEARING OFFICER JAMES STUBCHAER, CO-HEARING OFFICER 5 MARC DEL PIERO MARY JANE FORSTER 6 JOHN W. BROWN 7 STAFF MEMBERS: 8 THOMAS HOWARD - Supervising Engineer 9 VICTORIA A. WHITNEY - Senior Engineer 10 COUNSEL: 11 WILLIAM R. ATTWATER - Chief Counsel 12 WALTER PETTIT - Executive Director BARBARA LEIDIGH - Senior Staff Counsel 13 14 ---oOo--- 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 4547 1 REPRESENTATIVES 2 PRINCETON CODORA GLENN IRRIGATION DISTRICT, et al. 3 FROST, DRUP & ATLAS 4 134 West Sycamore STreet Willows, California 95988 5 BY: J. MARK ATLAS, ESQ. 6 JOINT WATER DISTRICTS: 7 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 8 Oroville, California 95965 BY: WILLIAM H. BABER, III, ESQ. 9 CALIFORNIA SPORTFISHING PROTECTION ALLIANCE: 10 ROBERT J. BAIOCCHI 11 P.O. Box 357 Quincy, California 95971 12 BELLA VISTA WATER DISTRICT: 13 BRUCE L. BELTON, ESQ. 14 2525 Park Marina Drive, Suite 102 Redding, California 96001 15 WESTLANDS WATER DISTRICT: 16 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 17 400 Capitol Mall, 27th Floor Sacramento, California 95814 18 BY: THOMAS W. BIRMINGHAM, ESQ. AMELIA THOMAS, ESQ. 19 THE BAY INSTITUTE OF SAN FRANCISCO: 20 GARY BOBKER 21 55 Shaver Street, Suite 330 San Rafael, California 94901 22 CITY OF ANTIOCH, et al.: 23 FREDERICK BOLD, JR., ESQ. 24 1201 California Street, Suite 1303 San Francisco, California 94109 25 CAPITOL REPORTERS (916) 923-5447 4548 1 REPRESENTATIVES 2 LEAGUE OF WOMEN VOTERS: 3 ROBERTA BORGONOVO 4 2480 Union Street San Francisco, California 94123 5 UNITED STATES DEPARTMENT OF THE INTERIOR: 6 OFFICE OF THE SOLICITOR 7 2800 Cottage Way, Roon E1712 Sacramento, California 95825 8 BY: ALF W. BRANDT, ESQ. 9 CALIFORNIA URBAN WATER AGENCIES: 10 BYRON M. BUCK 455 Capitol Mall, Suite 705 11 Sacramento, California 95814 12 RANCHO MURIETA COMMUNITY SERVICES DISTRICT: 13 MCDONOUGH, HOLLAND & ALLEN 555 Capitol Mall, 9th Floor 14 Sacramento, California 95814 BY: VIRGINIA A. CAHILL, ESQ. 15 CALIFORNIA DEPARTMENT OF FISH AND GAME: 16 OFFICE OF THE ATTORNEY GENERAL 17 1300 I Street, Suite 1101 Sacramento, California 95814 18 BY: MATTHEW CAMPBELL, ESQ. 19 NATURAL RESOURCES DEFENSE COUNCIL: 20 HAMILTON CANDEE, ESQ. 71 Stevenson Street 21 San Francisco, California 94105 22 ARVIN-EDISON WATER STORAGE DISTRICT, et al.: 23 DOOLEY HERR & WILLIAMS 3500 West Mineral King Avenue, Suite C 24 Visalia, California 93191 BY: DANIEL M. DOOLEY, ESQ. 25 CAPITOL REPORTERS (916) 923-5447 4549 1 REPRESENTATIVES 2 SACRAMENTO MUNICIPAL UTILITY DISTRICT: 3 LESLIE A. DUNSWORTH, ESQ. 4 6201 S Street Sacramento, California 95817 5 SOUTH SAN JOAQUIN IRRIGATION DISTRICT, et al.: 6 BRAY, GEIGER, RUDQUIST & NUSS 7 311 East Main Street, 4th Floor Stockton, California 95202 8 BY: STEVEN P. EMRICK, ESQ. 9 EAST BAY MUNICIPAL UTILITY DISTRICT: 10 EBMUD OFFICE OF GENERAL COUNSEL 375 Eleventh Street 11 Oakland, California 94623 BY: FRED ETHERIDGE, ESQ. 12 GOLDEN GATE AUDUBON SOCIETY: 13 ARTHUR FEINSTEIN 14 2530 San Pablo Avenue, Suite G Berkeley, California 94702 15 CONAWAY CONSERVANCY GROUP: 16 UREMOVIC & FELGER 17 P.O. Box 5654 Fresno, California 93755 18 BY: WARREN P. FELGER, ESQ. 19 THOMES CREEK WATER ASSOCIATION: 20 THOMES CREEK WATERSHED ASSOCIATION P.O. Box 2365 21 Flournoy, California 96029 BY: LOIS FLYNNE 22 COURT APPOINTED REPS OF WESTLANDS WD AREA 1, et al.: 23 LAW OFFICES OF SMILAND & KHACHIGIAN 24 601 West Fifth Street, Seventh Floor Los Angeles, California 90075 25 BY: CHRISTOPHER G. FOSTER, ESQ. CAPITOL REPORTERS (916) 923-5447 4550 1 REPRESENTATIVES 2 CITY AND COUNTY OF SAN FRANCISCO: 3 OFFICE OF THE CITY ATTORNEY 4 1390 Market Street, Sixth Floor San Francisco, California 94102 5 BY: DONN W. FURMAN, ESQ. 6 CAMP FAR WEST IRRIGATION DISTRICT, et al.: 7 DANIEL F. GALLERY, ESQ. 926 J Street, Suite 505 8 Sacramento, California 95814 9 BOSTON RANCH COMPANY, et al.: 10 J.B. BOSWELL COMPANY 101 West Walnut Street 11 Pasadena, California 91103 BY: EDWARD G. GIERMANN 12 SAN JOAQUIN RIVER GROUP AUTHORITY, et al.: 13 GRIFFIN, MASUDA & GODWIN 14 517 East Olive Street Turlock, California 95381 15 BY: ARTHUR F. GODWIN, ESQ. 16 NORTHERN CALIFORNIA WATER ASSOCIATION: 17 RICHARD GOLB 455 Capitol Mall, Suite 335 18 Sacramento, California 95814 19 PLACER COUNTY WATER AGENCY, et al.: 20 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 400 Capitol Mall, 27th Floor 21 Sacramento, California 95814 BY: JANET GOLDSMITH, ESQ. 22 ENVIRONMENTAL DEFENSE FUND: 23 THOMAS J. GRAFF, ESQ. 24 5655 College Avenue, Suite 304 Oakland, California 94618 25 CAPITOL REPORTERS (916) 923-5447 4551 1 REPRESENTATIVES 2 CALAVERAS COUNTY WATER DISTRICT: 3 SIMON GRANVILLE 4 P.O. Box 846 San Andreas, California 95249 5 CHOWCHILLA WATER DISTRICT, et al.: 6 GREEN, GREEN & RIGBY 7 P.O. Box 1019 Madera, California 93639 8 BY: DENSLOW GREEN, ESQ. 9 CALIFORNIA FARM BUREAU FEDERATION: 10 DAVID J. GUY, ESQ. 2300 River Plaza Drive 11 Sacramento, California 95833 12 SANTA CLARA VALLEY WATER DISTRICT: 13 MORRISON & FORESTER 755 Page Mill Road 14 Palo Alto, California 94303 BY: KEVIN T. HAROFF, ESQ. 15 CITY OF SHASTA LAKE: 16 ALAN N. HARVEY 17 P.O. Box 777 Shasta Lake, California 96019 18 COUNTY OF STANISLAUS: 19 MICHAEL G. HEATON, ESQ. 20 926 J Street Sacramento, California 95814 21 GORRILL LAND COMPANY: 22 GORRILL LAND COMPANY 23 P.O. Box 427 Durham, California 95938 24 BY: DON HEFFREN 25 CAPITOL REPORTERS (916) 923-5447 4552 1 REPRESENTATIVES 2 SOUTH DELTA WATER AGENCY: 3 JOHN HERRICK, ESQ. 4 3031 West March Lane, Suite 332 East Stockton, California 95267 5 COUNTY OF GLENN: 6 NORMAN Y. HERRING 7 525 West Sycamore Street Willows, California 95988 8 REGIONAL COUNCIL OF RURAL COUNTIES: 9 MICHAEL B. JACKSON 10 1020 Twelfth Street, Suite 400 Sacramento, California 95814 11 DEER CREEK WATERSHED CONSERVANCY: 12 JULIE KELLY 13 P.O. Box 307 Vina, California 96092 14 DELTA TRIBUTARY AGENCIES COMMITTEE: 15 MODESTO IRRIGATION DISTRICT 16 P.O. Box 4060 Modesto, California 95352 17 BY: BILL KETSCHER 18 SAVE THE SAN FRANCISCO BAY ASSOCIATION: 19 SAVE THE BAY 1736 Franklin Street 20 Oakland, California 94612 BY: CYNTHIA L. KOEHLER, ESQ. 21 BATTLE CREEK WATERSHED LANDOWNERS: 22 BATTLE CREEK WATERSHED CONSERVANCY 23 P.O. Box 606 Manton, California 96059 24 25 CAPITOL REPORTERS (916) 923-5447 4553 1 REPRESENTATIVES 2 BUTTE SINK WATERFOWL ASSOCIATION, et al.: 3 MARTHA H. LENNIHAN, ESQ. 4 455 Capitol Mall, Suite 300 Sacramento, California 95814 5 CITY OF YUBA CITY: 6 WILLIAM P. LEWIS 7 1201 Civic Center Drive Yuba City, California 95993 8 BROWNS VALLEY IRRIGTAION DISTRICT, et al.: 9 BARTKIEWICZ, KRONICK & SHANAHAN 10 1011 22nd Street, Suite 100 Sacramento, California 95816 11 BY: ALAN B. LILLY, ESQ. 12 CONTRA COSTA WATER DISTRICT: 13 BOLD, POLISNER, MADDOW, NELSON & JUDSON 500 Ygnacio Valley Road, Suite 325 14 Walnut Creek, California 94596 BY: ROBERT B. MADDOW, ESQ. 15 GRASSLAND WATER DISTRICT: 16 DON MARCIOCHI 17 22759 South Mercey Springs Road Los Banos, California 93635 18 SAN LUIS CANAL COMPANY: 19 FLANAGAN, MASON, ROBBINS & GNASS 20 3351 North M Street, Suite 100 Merced, California 95344 21 BY: MIICHAEL L. MASON, ESQ. 22 STONY CREEK BUSINESS AND LAND OWNERS COALITION: 23 R.W. MCCOMAS 4150 County Road K 24 Orland, California 95963 25 CAPITOL REPORTERS (916) 923-5447 4554 1 REPRESENTATIVES 2 TRI-DAM POWER AUTHORITY: 3 TUOLUMNE UTILITIES DISTRICT 4 P.O. Box 3728 Sonora, California 95730 5 BY: TIM MCCULLOUGH 6 DELANO-EARLIMART IRRIGATION DISTRICT, et al.: 7 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 8 Oroville, California 95965 BY: JEFFREY A. MEITH, ESQ. 9 HUMANE FARMING ASSOCIATION: 10 BRADLEY S. MILLER. 11 1550 California Street, Suite 6 San Francisco, California 94109 12 CORDUA IRRIGATION DISTRICT, et al.: 13 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 14 P.O. Box 1679 Oroville, California 95965 15 BY: PAUL R. MINASIAN, ESQ. 16 EL DORADO COUNTY WATER AGENCY: 17 DE CUIR & SOMACH 400 Capitol Mall, Suite 1900 18 Sacramento, California 95814 BY: DONALD B. MOONEY, ESQ. 19 GLENN COUNTY FARM BUREAU: 20 STEVE MORA 21 501 Walker Street Orland, California 95963 22 MODESTO IRRIGATION DISTRICT: 23 JOEL MOSKOWITZ 24 P.O. Box 4060 Modesto, California 95352 25 CAPITOL REPORTERS (916) 923-5447 4555 1 REPRESENTATIVES 2 PACIFIC GAS & ELECTRIC: 3 RICHARD H. MOSS, ESQ. 4 P.O. Box 7442 San Francisco, California 94120 5 CENTRAL DELTA WATER AGENCY, et al.: 6 NOMELLINI, GRILLI & MCDANIEL 7 P.O. Box 1461 Stockton, California 95201 8 BY: DANTE JOHN NOMELLINI, ESQ. and 9 DANTE JOHN NOMELLINI, JR., ESQ. 10 TULARE LAKE BASIN WATER STORAGE UNIT: 11 MICHAEL NORDSTROM 1100 Whitney Avenue 12 Corcoran, California 93212 13 AKIN RANCH, et al.: 14 DOWNEY, BRAND, SEYMOUR & ROHWER 555 Capitol Mall, 10th Floor 15 Sacramento, California 95814 BY: KEVIN M. O'BRIEN, ESQ. 16 OAKDALE IRRIGATION DISTRICT: 17 O'LAUGHLIN & PARIS 18 870 Manzanita Court, Suite B Chico, California 95926 19 BY: TIM O'LAUGHLIN, ESQ. 20 SIERRA CLUB: 21 JENNA OLSEN 85 Second Street, 2nd Floor 22 San Francisco, California 94105 23 YOLO COUNTY BOARD OF SUPERVISORS: 24 LYNNEL POLLOCK 625 Court Street 25 Woodland, California 95695 CAPITOL REPORTERS (916) 923-5447 4556 1 REPRESENTATIVES 2 PATRICK PORGENS & ASSOCIATES: 3 PATRICK PORGENS 4 P.O. Box 60940 Sacramento, California 95860 5 BROADVIEW WATER DISTRICT, et al.: 6 DIANE RATHMANN 7 P.O. Box 156 Dos Palos, California 93620 8 FRIENDS OF THE RIVER: 9 BETSY REIFSNIDER 10 128 J Street, 2nd Floor Sacramento, California 95814 11 MERCED IRRIGATION DISTRICT: 12 FLANAGAN, MASON, ROBBINS & GNASS 13 P.O. Box 2067 Merced, California 95344 14 BY: KENNETH M. ROBBINS, ESQ. 15 CENTRAL SAN JOAQUIN WATER CONSERVATION DISTRICT: 16 REID W. ROBERTS, ESQ. 311 East Main Street, Suite 202 17 Stockton, California 95202 18 METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA: 19 JAMES F. ROBERTS P.O. Box 54153 20 Los Angeles, California 90054 21 SACRAMENTO AREA WATER FORUM: 22 CITY OF SACRAMENTO 980 9th Street, 10th Floor 23 Sacramento, California 95814 BY: JOSEPH ROBINSON, ESQ. 24 25 CAPITOL REPORTERS (916) 923-5447 4557 1 REPRESENTATIVES 2 TUOLUMNE RIVER PRESERVATION TRUST: 3 NATURAL HERITAGE INSTITUTE 4 114 Sansome Street, Suite 1200 San Francisco, California 94194 5 BY: RICHARD ROOS-COLLINS, ESQ. 6 CALIFORNIA DEPARTMENT OF WATER RESOURCES: 7 DAVID A. SANDINO, ESQ. P.O. Box 942836 8 Sacramento, California 94236 9 FRIANT WATER USERS AUTHORITY: 10 GARY W. SAWYERS, ESQ. 575 East Alluvial, Suite 101 11 Fresno, California 93720 12 KERN COUNTY WATER AGENCY: 13 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 400 Captiol Mall, 27th Floor 14 Sacramento, California 95814 BY: CLIFFORD W. SCHULZ, ESQ. 15 SAN JOAQUIN RIVER EXCHANGE CONTRACTORS: 16 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 17 P.O. Box 1679 Oroville, California 95965 18 BY: MICHAEL V. SEXTON, ESQ. 19 SAN JOAQUIN COUNTY: 20 NEUMILLER & BEARDSLEE P.O. Box 20 21 Stockton, California 95203 BY: THOMAS J. SHEPHARD, SR., ESQ. 22 CITY OF STOCKTON: 23 DE CUIR & SOMACH 24 400 Capitol Mall, Suite 1900 Sacramento, California 95814 25 BY: PAUL S. SIMMONS, ESQ. CAPITOL REPORTERS (916) 923-5447 4558 1 REPRESENTATIVES 2 ORLAND UNIT WATER USERS' ASSOCIATION: 3 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 4 P.O. Box 1679 Oroville, California 95965 5 BY: M. ANTHONY SOARES, ESQ. 6 GLENN-COLUSA IRRIGATION DISTRICT: 7 DE CUIR & SOMACH 400 Capitol Mall, Suite 1900 8 Sacramento, California 95814 BY: STUART L. SOMACH, ESQ. 9 NORTH SAN JOAQUIN WATER CONSERVATION DISTRICT: 10 JAMES F. SORENSEN CONSULTING CIVIL ENGINEER, INC.: 11 209 South Locust Street Visalia, California 93279 12 BY: JAMES F. SORENSEN 13 PARADISE IRRIGATION DISTRICT: 14 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 15 Oroville, California 95965 BY: WILLIAM H. SPRUANCE, ESQ. 16 COUNTY OF COLUSA: 17 DONALD F. STANTON, ESQ. 18 1213 Market Street Colusa, California 95932 19 COUNTY OF TRINITY: 20 COUNTY OF TRINITY - NATURAL RESOURCES 21 P.O. Box 156 Hayfork, California 96041 22 BY: TOM STOKELY 23 CITY OF REDDING: 24 JEFFERY J. SWANSON, ESQ. 2515 Park Marina Drive, Suite 102 25 Redding, California 96001 CAPITOL REPORTERS (916) 923-5447 4559 1 REPRESENTATIVES 2 TULARE IRRIGATION DISTRICT: 3 TEHEMA COUNTY RESOURCE CONSERVATION DISTRICT 4 2 Sutter Street, Suite D Red Bluff, California 96080 5 BY: ERNEST E. WHITE 6 STATE WATER CONTRACTORS: 7 BEST BEST & KREIGER P.O. Box 1028 8 Riverside, California 92502 BY: CHARLES H. WILLARD 9 COUTNY OF TEHEMA, et al.: 10 COUNTY OF TEHEMA BOARD OF SUPERVISORS 11 P.O. Box 250 Red Bluff, California 96080 12 BY: CHARLES H. WILLARD 13 MOUNTAIN COUNTIES WATER RESOURCES ASSOCIATION: 14 CHRISTOPHER D. WILLIAMS P.O. Box 667 15 San Andreas, California 95249 16 JACKSON VALLEY IRRIGATION DISTRICT: 17 HENRY WILLY 6755 Lake Amador Drive 18 Ione, California 95640 19 SOLANO COUNTY WATER AGENCY, et al.: 20 HERUM, CRABTREE, DYER, ZOLEZZI & TERPSTRA 2291 West March Lane, S.B. 100 21 Stockton, California 95207 BY: JEANNE M. ZOLEZZI, ESQ. 22 23 ---oOo--- 24 25 CAPITOL REPORTERS (916) 923-5447 4560 1 I N D E X 2 ---oOo--- 3 4 PAGE 5 OPENING OF HEARING 4563 6 AFTERNOON SESSION 4659 7 END OF PROCEEDINGS 4756 8 DIRECT TESTIMONY: 9 TRINITY COUNTY 4563 10 PANEL: 11 TOM STOKELY 12 ARNOLD WHITRIDGE 13 CROSS-EXAMINATION OF TRINITY COUNTY: 14 DANTE JOHN NOMELLINI 4631 15 PATRICK PORGANS 4640 MICHAEL SEXTON 4659 16 ALF BRANDT 4721 JOHN HERRICK 4733 17 THOMAS BIRMINGHAM 4734 18 19 ---oOo--- 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 4561 1 2 INDEX (Cont'd.) ---oOo--- 3 4 QUESTIONS MARKED PAGE LINE 5 QUESTION/ANSWER 4702 5 6 MR. SEXTON: Is that the Westlands boundary area? MR. STOKELY: Yes. 7 8 ---oOo--- 9 QUESTION/ANSWER PAGE LINE 10 4713 5 11 MR. SEXTON: Correct me if I'm wrong, but my understanding of the reference to a 90-percent exceedance 12 factor when dealing with forecasts -- forecasted water deliveries, actually, means that the forecast is going to 13 be wrong 90 percent of the time; isn't that right? In other words, it's an ultraconservative forecast 14 based on being wrong 90 percent of time, being right 10 percent of the time, and a policy decision has been made 15 that that is necessary in order to protect something? MR. STOKELY: The 90-percent exceedance water supply 16 forecast basically says that 90 percent of the time it will be wetter than that particular forecast. 17 18 ---oOo--- 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 4562 1 WEDNESDAY, OCTOBER 14, 1998, 9:03 A.M. 2 SACRAMENTO, CALIFORNIA 3 ---oOo--- 4 C.O. STUBCHAER: Good morning. John Caffrey has a 5 dead battery this morning, so he'll be with us a little 6 later. 7 UNIDENTIFIED MAN: Was it a car battery? 8 C.O. STUBCHAER: Car battery. We're going to proceed 9 with County of Trinity's case in chief. 10 Mr. Jackson, good morning. 11 ---oOo--- 12 OPENING STATEMENT TRINITY COUNTY 13 BY RALPH MODINE 14 MR. JACKSON: Good morning, sir. My name is Michael 15 Jackson. I'm appearing specially on behalf of Trinity 16 County to assist them in this presentation. The opening 17 statement will be made by Trinity County Supervisor Ralph 18 Modine. And then there will be two witnesses, Tom Stokely 19 and Arnold Whitridge. And so without further adeu, I will 20 give it to Mr. Modine to make the opening statement. 21 C.O. STUBCHAER: Good morning, Mr. Modine. 22 MR. MODINE: Thank you. As was said, I'm the 23 Chairman of the Trinity County Board of Supervisors. I 24 have -- I'm in my tenth year as a Member of the Board. I 25 served the first eight between 1977 and 1984 -- CAPITOL REPORTERS (916) 923-5447 4563 1 C.O. STUBCHAER: Excuse me a moment, Mr. Modine. 2 Mr. Jackson, is this a policy statement or is this 3 testimony? 4 MR. JACKSON: This is an opening statement, sir. 5 Generally, the attorneys give them, but in this particular 6 circumstance the supervisor will give it. 7 C.O. STUBCHAER: All right. 8 MR. JACKSON: It is not evidence. It is simply an 9 opening statement. 10 C.O. STUBCHAER: All right. There is no need to 11 swear this witness, but the other witnesses will have to 12 take the oath. 13 MR. JACKSON: That's correct. 14 C.O. STUBCHAER: Okay. Excuse me, Mr. Modine. 15 MR. MODINE: Thank you. In 1952 my grandfather moved 16 to Trinity County for three reasons. It had the presence 17 of precious metals, a flowering lumber industry and a world 18 class steelhead and salmon fishery. That year county 19 discussions had begun regarding the possibility of damming 20 the Trinity River. 21 Some felt it would provide growth, prosperity and 22 vast potential for our county. Others felt it would 23 desecrate Trinity's crown jewel. In 1955 the Trinity River 24 Division of the Central Valley Project was authorized by 25 congress with statutory assurances to Trinity County, to CAPITOL REPORTERS (916) 923-5447 4564 1 tribes on the river and to the American people that the 2 Trinity River's thriving anadromous fisheries would remain. 3 The split was 10 percent for the fish, Indians and us; 90 4 percent for other uses. 5 In 1962, the year I graduated from Hayfork High 6 School, Trinity County was excited by the construction 7 activity and awestruck by the shear size of and the 8 dislocation and inundation that came with the project. The 9 reservoir was filled quickly by the flood of '64. 10 By 1972 it was readily apparent that something was 11 terrible wrong. The river was deforming. It was choking 12 with sediment, because it couldn't cough with its historic 13 high-speed large volume winter flows and it had no fish in 14 it. Task forces were formed and studies begun. 15 In 1982, efforts had begun to garner Federal 16 appropriations for sediment control for experimental flow 17 studies and for a restoration program. Statutory 18 authorization came in 1984 with a new split: 25 percent of 19 the water for the Trinity basin; 75 percent for other uses. 20 By 1992, the year of the Central Valley Project 21 Improvement Act, Trinity's anadromous fish stocks had 22 advanced from decimated to rare and endangered. And a 23 12-year study by a team of government, private and Indian 24 scientists was nearing completion that would indicate to 25 the Secretary of Interior what the appropriate flow CAPITOL REPORTERS (916) 923-5447 4565 1 regiment for the Trinity should be. 2 The study is complete. The environmental impacts 3 are nearly fully analyzed and the Trinity River will soon 4 be allocated half of its life blood; the public trust, 5 tribal trust, county of origin rights, three Federal 6 statutes and scientific documentation all say so. 7 Since the early '70s there has been active concern 8 in Trinity County over the use of herbicides in forestry. 9 This has caused the United States Forest Service To 10 discontinue using them on their 75 percent of our county 11 land. Industrial users are prosecuted by county ordinance 12 if there is any discharge into county waterways. When the 13 Trinity water hits the turbines at the Judge Francis Carr 14 Powerhouse and joins the incredible network of water and 15 power distribution, it is some of the purest in the state. 16 When the Secretary of Interior gives us our just 17 allotment there is going to be -- there is going to have to 18 be more than minor adjustments to the California water 19 ledger. Relieving 35 years of suffering for the Trinity 20 River system will cause suffering for others, the County of 21 Trinity understands that. We also understand that our 22 precious water is being used on farmland that is tainted to 23 the margin of irritability. 24 Why would California take the best water in the 25 State and put it on foul ground? We can see no reason. CAPITOL REPORTERS (916) 923-5447 4566 1 And Trinity County is asking this Board today to use the 2 authority it has and stop it. We believe all water users 3 in the Sacramento/San Joaquin watersheds will, generally, 4 benefit. And we believe the people of the United States 5 for whom the Trinity Dam was dedicated would support us. 6 Thank you. 7 C.O. STUBCHAER: Thank you, Mr. Modine. Excuse me, 8 Mr. Jackson. 9 Mary, do you have the spelling and address of all 10 the witnesses? 11 THE COURT REPORTER: No, but I'll get it. 12 C.O. STUBCHAER: Okay. All right. Proceed, 13 Mr. Jackson. 14 MR. JACKSON: Now, Mr. Stokely and Mr. Whitridge will 15 summarize their written testimony. 16 C.O. STUBCHAER: Please stand and take the oath. You 17 promise to tell the truth in this proceeding? 18 MR. WHITRIDGE: I do. 19 MR. MODINE: I do. 20 MR. BIRMINGHAM: Excuse me. Mr. Stubchaer? 21 C.O. STUBCHAER: Mr. Birmingham. 22 MR. BIRMINGHAM: I wonder if at this time I might be 23 offered an opportunity to voir dire the witnesses. 24 C.O. STUBCHAER: I don't think so, Mr. Birmingham. 25 The qualifications and the expertise of the witnesses will CAPITOL REPORTERS (916) 923-5447 4567 1 be considered in the Board's deliberations in giving it the 2 weight of the evidence. 3 MR. BIRMINGHAM: May I speak to that for a moment, 4 Mr. Stubchaer? 5 C.O. STUBCHAER: Surely. 6 MR. BIRMINGHAM: Throughout the hearing process we've 7 had debates about -- I haven't been involved in all of 8 them, I've been involved in some of them, but we've had 9 debates about the an applicability of certain provisions of 10 the Evidence Code to judicial -- to adjudicative 11 proceedings before the Board. 12 And I'd like to refer for a moment, if I can, to 13 Section 648 of this Board's regulations. It states that: 14 (Reading): 15 "For purposes of this Article, adjudicative 16 proceeding means an evidentiary hearing for 17 determination of the facts pursuant to which a 18 State Board, or Regional Board formulates and 19 issues a decision." 20 And, then, Subsection B of Section 648 states the 21 following: 22 (Reading): 23 "Incorporation of applicable statute, expect as 24 otherwise provided, all adjudicative proceedings 25 before the Board and the Regional Boards, or CAPITOL REPORTERS (916) 923-5447 4568 1 hearing officers or panels appointed by any of 2 those Boards shall be governed by these 3 regulations, Chapter 4.5 of the Administrative 4 Procedure Act, commencing with Section 11400 of 5 the Government Code and Sections 801 to 805 of 6 the Evidence Code and Sections 11513 of the 7 Government Code." 8 And Sections 801 through 805 of the Evidence Code 9 deal with the topic of opinions being offered by experts. 10 And Section 803 of the Evidence Code states: 11 (Reading): 12 "The Court may and upon objection shall exclude 13 testimony in the form of an opinion that is 14 based in whole or in significant part on a 15 matter that is not a proper basis for such an 16 opinion." 17 It's not a situation in which the evidence can be 18 admitted and the qualifications of the evidence -- or of 19 the witnesses can go to the weight to be given the evidence 20 by the Board Members. If we substitute the word "board" in 21 Section 803 for the word "Court": 22 "The Board may and upon objection shall exclude 23 the testimony." If these witnesses are not qualified to 24 express opinions on the subjects that are contained in 25 their testimony, and those subjects range from legal CAPITOL REPORTERS (916) 923-5447 4569 1 opinions to opinions on hydrology, to opinions on biology, 2 to opinions on engineering, to opinions on water quality 3 engineering, to opinions related to geology, to opinions 4 related to soil science, to opinions related to 5 geomorphology. 6 If these witnesses are not qualified to express 7 opinions on those subjects, and the only way to determine 8 that is to conduct an examination to determine if they are 9 qualified, then Westlands will object to the admission of 10 this testimony. And under Section 803 the Board "shall" 11 exclude the evidence. 12 And so, again, I don't think this is a situation 13 where their qualifications could go to the weight. Under 14 the Code, it must be excluded. 15 C.O. STUBCHAER: As you know we've been fairly 16 liberal in allowing testimony to come into the record. And 17 the Chairman has stated that we will consider the weight of 18 the evidence and qualifications and expertise of the 19 witnesses. Is there any reason why you couldn't develop 20 the points you wish to make under cross-examination instead 21 of voir dire? 22 MR. BIRMINGHAM: Well, I can develop the points I 23 want to make under cross-examination, but that's not the 24 issue. I don't want the Board to hear this testimony. I 25 don't want the Board to hear this evidence if these CAPITOL REPORTERS (916) 923-5447 4570 1 individuals are not qualified to present it. 2 If Trinity County would like to hirer experts that 3 are qualified to express the opinions that are contained in 4 this -- in these exhibits, we would have no objection to 5 their doing that and bringing it in at some later phase. 6 But if these individuals are not qualified to express the 7 opinions contained in their testimony, then, we have a due 8 process right to conduct voir dire and to ask that the 9 Board to exclude the evidence. And we're willing to 10 accommodate Trinity County in any way that we can, but -- 11 C.O. STUBCHAER: Except that way. 12 MR. BIRMINGHAM: Except giving up our right to 13 question the qualifications of people, of witnesses that 14 are being offered as experts and, then, having the Board 15 accept that evidence. 16 C.O. STUBCHAER: In all the hearings I've been 17 involved in since I've been on the Board, this is the first 18 request for a voir dire. And I can recall earlier in this 19 proceeding there were questions about the expertise of a 20 certain witness and nobody asked to voir dire him. But I'm 21 going to ask, Mr. Jackson, if you have any response? 22 MR. JACKSON: Yes, sir. I do not -- I believe that 23 you're right, that under the Board's hearing, this goes to 24 the weight of the evidence. But, first, I would point out 25 there's five ways that somebody can be an expert. CAPITOL REPORTERS (916) 923-5447 4571 1 You can be an expert by education. You can be an 2 expert by training. You can be an expert by experience. 3 You can be an expert by personal knowledge. You can be an 4 expert simply by an accumulation of the above. The 5 witnesses are clearly qualified to talk to you about the 6 Trinity River. 7 In fact, there is probably nobody else in the room 8 qualified to talk about the Trinity River, including 9 Mr. Birmingham and his witnesses, that have the depth, 10 background and understanding on conditions on the Trinity 11 River where this water comes from for the area of origin 12 arguments, for the legal arguments, for the environmental 13 affects of what presently happens with the diversion. 14 Secondly, Mr. Stokely and Mr. Whitridge are in the 15 process of doing a joint Environmental Impact Report with 16 the Bureau in regard to the Trinity River and the place of 17 use and how water is used at the place of use. They have 18 done a tremendous amount of background work in regard to 19 the Board's files. And all of the evidence that they've 20 testified to in regard -- in regard to this hearing comes, 21 essentially, from the State and Federal government's files. 22 They are qualified. This is simply an attempt by Westlands 23 to have you ignore evidence that is clearly relevant. 24 MR. BIRMINGHAM: Mr. Stubchaer? 25 C.O. STUBCHAER: Mr. Birmingham. CAPITOL REPORTERS (916) 923-5447 4572 1 MR. BIRMINGHAM: I agree completely with what 2 Mr. Jackson said about the methods, or the ways in which a 3 person can be qualified as an expert. Specifically the 4 Evidence Code provides that a person can be an expert based 5 upon special knowledge, skill, experience, training and 6 education. 7 The statement of qualifications that we received 8 for these two witnesses consisted of single paragraphs 9 typed out on a page. What I want to do is I want to ask 10 these witnesses preliminary questions that relate to their 11 special knowledge, skill, experience, training and 12 education. 13 And if based upon those questions, it appears to 14 the Board, "to the Board" that they're experts, whether I 15 think they are or not, it appears to the Board that they're 16 experts then it, certainly, would be appropriate for them 17 to provide the testimony that have been previously marked 18 as exhibits. But what I want to do is to conduct that 19 preliminary examination. 20 Like you, I have never witnessed anyone request an 21 opportunity to conduct voir dire in a hearing before this 22 Board. But the Board's regulations contemplate that there 23 will be the introduction of expert testimony. There is a 24 reason that experts have to submit their statement of 25 qualifications to the parties before they appear if they're CAPITOL REPORTERS (916) 923-5447 4573 1 being offered as an expert. 2 And that's so the parties will have an opportunity 3 to examine those qualifications to determine whether or not 4 they really are experts. And if they are not, then under 5 the Evidence Code, the specific provision of the Evidence 6 Code that is made applicable by these Board's proceedings 7 by the Board's own regulations, it must be excluded. 8 C.O. STUBCHAER: Ms. Leidigh. 9 MS. LEIDIGH: Thank you. There's several different 10 issues that I need to cover. One, Section 802 of the 11 Evidence Code states: 12 (Reading): 13 "That a witness testifying before and forming an 14 opinion may state on direct examination the 15 reasons for his opinion and the matter, 16 including in the case of an expert the special 17 knowledge, skill, training and education on 18 which it is based; unless he's precluded by law 19 from using such reasons or matter for basing 20 his opinion. The Court, in its discretion, 21 may require the witness, before testifying in 22 form of an opinion, be first examined concerning 23 the matter upon which his opinion is based." 24 But that is discretionary under Section 802. It 25 says "in its discretion," not mandatory. CAPITOL REPORTERS (916) 923-5447 4574 1 And the other thing about this section is that it 2 makes it clear that there's no need to be an expert in 3 order to give opinion testimony. So these people don't 4 have to be experts, necessarily. I think there is a 5 certain amount of discretion on the part of the Board to 6 decide on how to handle the evidence once it receives it. 7 Next, Section 803, which Mr. Birmingham cited, it 8 says, again: 9 (Reading): 10 "The Court may and upon objection shall exclude 11 testimony in the form of an opinion that is 12 based in whole or in significant part on matter 13 that is not a proper basis for such an opinion. 14 In such a case, the witness may, if there 15 remains a proper basis for his opinion, then 16 state his opinion after excluding from 17 consideration the matter determined to be 18 improper." 19 But the problem is, here, that the Board has to 20 decide whether or not the testimony is proper. And it 21 seems to me that that is discretionary with the Board. It 22 would be very difficult to decide whether or not it is 23 proper without hearing it and knowing what is going to be 24 said. After it's heard and the witnesses have explained 25 what the basis is for their opinions and why they are CAPITOL REPORTERS (916) 923-5447 4575 1 capable of giving these opinions, then, it seems to me it 2 would be a proper time for Mr. Birmingham to object to the 3 testimony being in the record. 4 MR. BIRMINGHAM: The -- 5 MS. LEIDIGH: I think there is adequate discretion in 6 here for that to take place. 7 MR. BIRMINGHAM: Ms. Leidigh is correct in what she 8 said concerning Section 802. A witness when providing 9 testimony in direct examination may state the reasons for 10 his opinion in the matters including -- in the case of an 11 expert, his special knowledge, skill, experience, training 12 and education. These two witnesses are being offered as 13 experts. So there isn't any question concerning the 14 requirement that in order for them to provide an opinion 15 that they have special knowledge, skill, experience, 16 training and education. 17 If we were in a courtroom, Mr. Jackson during 18 examination could ask them questions concerning the basis 19 of their opinion and how the basis of their opinion relates 20 to their special knowledge, skill, experience, training and 21 education. But as we have heard many, many times in this 22 hearing and in other hearings, direct examination is to be 23 submitted to the Board before the hearing in written form. 24 And the oral presentation of the direct 25 examination is suppose to be a summary of that examination, CAPITOL REPORTERS (916) 923-5447 4576 1 of that testimony. In this situation the written direct 2 testimony does not contain a statement of the basis of 3 opinions that are contained in the testimony, or how they 4 relate to the expert skill, special knowledge, experience, 5 training or education. 6 The opportunity for Trinity County to relate this 7 information to -- with respect to these experts in the 8 direct examination has passed. They didn't do it. And, 9 again, if they would like to withdraw the testimony and 10 resubmit it after having done that, we would have no 11 objection to that. But it's not presently in the 12 testimony. 13 The fact that no one has ever asked to voir dire 14 an expert in the past doesn't mean that we can't do it now. 15 If what you're saying, Mr. Stubchaer, is that if every time 16 I let an objectionable question go by, or I let an 17 objectionable procedure occur I am waiving my right to 18 object to that in the future, then this process is going to 19 slow way down, because I am going to start objecting to 20 every single objectionable question and I'm going to start 21 objecting to every procedure that is at all inconsistent 22 with the -- with the Board's regulations and the provisions 23 of the Evidence Code and Government Code that govern these 24 hearings. 25 We did this once before. I stood up and I said, CAPITOL REPORTERS (916) 923-5447 4577 1 "I'm not objecting" when someone went beyond the scope of 2 their direct examination, "I just want to make sure that in 3 the future if I don't object now that I'm not going to be 4 waiving that objection." And there was a horrendous 5 result. That's going to start happening every time 6 Mr. Jackson asks a compound question, I'm going to object. 7 Every time he leads the witness, I'm going to object. 8 Every time he asks a question that is calling for an 9 opinion that is outside a person's area of expertise, I'm 10 going to object. 11 C.O. STUBCHAER: Mr. Birmingham, I cited the history 12 to indicate that we not a court of law. We're the Board -- 13 Water Board, as you know. And we've been relatively 14 generous in permitting testimony into the record. And 15 then, as we have stated before, we will consider the 16 qualifications and the expertise in determining the weight 17 of the evidence. And I don't want to start a strict by the 18 book procedure any more than you do. That's the reason I 19 cited it. It's not to deprive you of your right to request 20 voir dire. 21 Mr. Nomellini? 22 MR. NOMELLINI: Yes, Mr. Chairman, I think that this 23 matter of disrupting the hearing process could be avoided 24 by allowing Mr. Birmingham a standing objection, allow the 25 testimony to go forward on cross-examination. CAPITOL REPORTERS (916) 923-5447 4578 1 Mr. Birmingham can proceed to pursue the 2 qualifications in light of the testimony and pursue that. 3 And the Board can judge whether or not the expertise is 4 there. And we can proceed with the hearing. To preclude 5 this process from going forward in an orderly fashion, I 6 think would be a major deviation from what we've been 7 doing. It is unfair. 8 Many of us know the procedure as well as 9 Mr. Birmingham and could obstruct the hearing process by 10 constant objection. Most of the people have avoided the 11 nitpicking of the questions, on compound questions and 12 things like that, because the Board, again, has taken a 13 broad approach to gathering the evidence and going to the 14 weight, which I think has been a fair way to proceed. It's 15 the way we've gone up to date and we ought to continue 16 that. 17 MR. BIRMINGHAM: Mr. Nomellini is correct. And I, 18 certainly, do not want to obstruct, and I'm not attempting 19 to obstruct the orderly process of this hearing. But, 20 instead, this is a situation, where at least in my view, 21 the opinions that are expressed in this -- in the testimony 22 as submitted goes so far beyond the apparent qualifications 23 of these witnesses that I have chosen to request my 24 opportunity to voir dire the witnesses. 25 That is, occasionally I stand up and make an CAPITOL REPORTERS (916) 923-5447 4579 1 objection because I think that in order for the Board to 2 have the appropriate record before it, it should -- I 3 should make the objection. And in order to adequately 4 protect my clients' interests I feel I need to make that 5 objection. There is one last pitch I will make, 6 Mr. Stubchaer, because I don't want to -- if the Board 7 ultimately decides that it wants to hear from these 8 witnesses, then that's the Board's decision. 9 But with the Board's regulations and the 10 regulations that accompany the notice of this hearing with 11 respect to the Hearing Officer's ability to waive 12 requirements states specifically: 13 (Reading): 14 "The presiding officer may waive any 15 requirement in these regulations pertaining to 16 the conduct of the adjudicative proceeding, 17 including but not limited to the introduction of 18 evidence, the order of proceeding, the 19 examination or cross-examination of witnesses 20 and the presentation of argument so long as 21 those requirements are not mandated by State or 22 Federal statute or by the State or Federal 23 constitutions." 24 Evidence Code Section 803 specifically states that 25 if we object, the Board "shall exclude this testimony." CAPITOL REPORTERS (916) 923-5447 4580 1 The hearing officer cannot waive that requirement, because 2 it is -- it is a requirement that is imposed by statute. 3 C.O. STUBCHAER: Mr. Jackson? 4 MR. JACKSON: Yes, Mr. Stubchaer, that's the most 5 tortured reasoning I've ever heard. If, in fact, the Board 6 is in a situation in which this is a mandatory ruling that 7 means that every time that one of these biologists talks 8 about hydrology, or every time a civil engineer talks about 9 the law we're going to be going through this sort of thing 10 and it's mandatory on you, no discretion at all. That is 11 not the way the Board's hearing process works. 12 We are about four months into a phased hearing 13 process, which you cannot find in any of the hearings. We 14 are limiting direct testimony to 20 minutes. If we went 15 through the legal process of qualifying every witness, 16 every witness would take more than 20 minutes simply to 17 qualify. 18 At this point, Mr. -- Westlands has had, 19 essentially, this filed -- these qualifications have 20 beenfiled for three months. There's been no formal motion. 21 He's attempting to tell you you're in a straight jacket 22 that you're not in. And I think your counsel has 23 accurately explained why you are not in such a straight 24 jacket. 25 But every individual witness who testifies, no CAPITOL REPORTERS (916) 923-5447 4581 1 matter how many times they've been here, is testifying to 2 things which could be outside of their education and 3 training and experience. By the time we try to find out 4 exactly what it is that every one of these witnesses is an 5 expert on, it becomes a game that takes up more time than 6 the evidence is worth. 7 MR. BIRMINGHAM: Mr. Jackson says that the Board is 8 going to be in a straight jacket, the Board isn't going to 9 be in a straight jacket. The Evidence Code Section 803 10 says that "the Board may exclude the evidence and shall if 11 someone objects." 12 Now, we have heard -- we have heard experts 13 express opinions that may go beyond the scope of their 14 expertise. And if no one objects, then the Board can 15 accept that evidence. There are some situations in which 16 experts say "that goes beyond the scope of my expertise" 17 and they don't answer it. 18 Sometimes there are people who are testifying as 19 experts, Mr. Hildebrand is a very, very good example. 20 Mr. Hildebrand has been dealing with these issues for such 21 a long time, he's been appearing before the Board for such 22 a long time, he has been listening to the arguments of 23 counsel for such a long time and reviewing the decisions of 24 this Board, if he wants to express his opinion concerning 25 the application of the law, I'm not going to stand up and CAPITOL REPORTERS (916) 923-5447 4582 1 argue with him about it. 2 I might argue with his interpretation, but I'm not 3 going to say he can't do that. Because of his special 4 knowledge and experience I think he probably could be 5 qualified as an expert. I asked Mr. Hanson, who is being 6 offered as an expert, legal questions. 7 Mr. Hanson is an engineer who has been appearing 8 before this Board in a legal representative capacity for 9 decades. Of course, he's qualified to express those legal 10 opinions. All I want to do in this situation is with 11 people I've never seen before, with people that I've never 12 heard before, inquire into their qualifications as experts. 13 C.O. STUBCHAER: Are you referring to Mr. Hanson the 14 biologist, or the engineer? 15 MR. BIRMINGHAM: Jim Hanson the engineer. 16 C.O. STUBCHAER: The engineer. Mr. Porgans? 17 MR. PORGANS: I've been sitting through these 18 hearings since 1976. I have reservations on what qualifies 19 an expert to begin with, but that's basic. But I've never 20 gone up and questioned their experts, because I've heard 21 them make statements they didn't know the fundamental issue 22 relative to their operations of their own districts. 23 But I didn't, you know, make an argument about 24 that because I realize that "expert" is subjective. Now, I 25 don't know what these gentlemen are going to be testifying CAPITOL REPORTERS (916) 923-5447 4583 1 to. I don't believe that they put all the information that 2 they're going to be presenting together on their own. This 3 information is probably a collection of information that's 4 been complied from government documents and other sources. 5 So those people, quote, unquote, would be considered to be 6 the ones that would be knowledgeable about that data. 7 Now, if they're testifying about information that 8 was brought forth by government agencies that are in that 9 particular, that's their responsibility. And they 10 published that information that we can, quote, unquote, 11 accept that information as being somewhat valid, I can 12 truly appreciate Mr. Birmingham's concern here. 13 If I was him I would be as nervous as he is right 14 now. This is the first information that I think is worthy 15 of me sitting in this chair to observe. So I can agree 16 with Mr. Nomellini and I agree with Mr. Jackson and I agree 17 with your counsel that we should proceed. If he wants to 18 object every time, then, if he wants to get into that mode, 19 let him do it. 20 C.O. STUBCHAER: Thank you, Mr. Porgans. 21 MR. BIRMINGHAM: Mr. Porgans has made my point for 22 me. What we have in this testimony -- and Mr. Porgans has 23 received the testimony and if he had read it he would know 24 what they're going to say, but what we have is a 25 compilation of a lot of documents that have come in from CAPITOL REPORTERS (916) 923-5447 4584 1 other people. 2 Now, let's speak in hypothetical terms, if we may. 3 Let's assume that one of these witnesses, Mr. Stokely, is 4 an expert engineer. As an expert he can take government 5 publications, or other evidence on which an expert would 6 reasonably rely and base an opinion and then express that 7 opinion to this Board, or in a court based on that 8 information. 9 But his ability to do that depends on his 10 qualifications as an expert. And in this situation what I 11 want to do is establish if Mr. Stokely is, in fact, an 12 expert. If he is under Section 803, then, that evidence 13 can come in. If he's not and Westlands objects, and 14 Westlands will, the evidence "shall be excluded." 15 C.O. STUBCHAER: Okay. Thank you, Mr. Birmingham. 16 We're going to go off the record for a moment. 17 (Off the record from 9:37 a.m. to 9:39 a.m.) 18 C.O. STUBCHAER: Back on the record. Mr. Birmingham, 19 I'm going to allow the testimony to proceed. Your 20 objection is noted, it is on the record. And you will have 21 an opportunity to cross-examine and you may ask all the 22 questions that you wish. 23 Mr. Jackson. 24 MR. WHITRIDGE: Thank you, sir. I'm not Mr. Jackson, 25 but I'm Arnold Whitridge, project specialist in the CAPITOL REPORTERS (916) 923-5447 4585 1 Planning Department from Trinity County. 2 C.O. STUBCHAER: Will you spell your last name, 3 please. 4 MR. WHITRIDGE: W-H-I-T-R-I-D-G-E. 5 C.O. STUBCHAER: Thank you. 6 MR. WHITRIDGE: We have to spend a little time 7 talking about Trinity River issues and if you maintain your 8 faith and bear with us, you will clearly see the connection 9 between the issues before you today. 10 The Trinity River produces an annual average total 11 flow of 1.2 million acre-feet at the Central Valley Project 12 Dams on the Trinity. Since 1964, the Bureau of Reclamation 13 has diverted just under one million acre-feet per year out 14 of the basin. Incidentally, we have submitted a revised 15 Exhibit 2 chronicling those diversions year-by-year. The 16 only substantial revision to the annual figures, besides 17 the rounding of the numbers, is an addition of the final 18 1997 numbers, all the others are the same. 19 The State permits for this massive interbasin 20 diversion of water require annual in-stream flow releases 21 of 120 -- amounting to 120,500 acre-feet per year. It's 22 difficult at this point to imagine how anyone could have 23 believed, or could have pretended to believe that the 24 guarantee of 10 percent of the water would, in fact, 25 provide adequate protection for in-stream beneficial uses CAPITOL REPORTERS (916) 923-5447 4586 1 and keep a river and its fishery alive. 2 At any rate, it apparently was not adequate, 3 clearly was not adequate. And since that protection is 4 still in the permits, it's never been visited since the 5 1950's. And I guess we need to say, it is still 6 inadequate, because almost immediately after completion of 7 the dams, tremendous amounts of sediment entering the river 8 from the downstream tributaries began to accumulate in the 9 river channel and flood plain, untransportable by the 10 diminished flows. 11 This tremendous accumulation of sediment began to 12 cause changes in the river's shape and the ecological 13 functioning of the river. As examples of the changes in 14 the 30 river miles below the dam, the river is now much 15 narrower than it was, about half the open water area at any 16 time; 95 percent less fish accessible gravel bar area than 17 existed before the dam -- 18 MR. BIRMINGHAM: Excuse me, I'm going to rise at this 19 point and object and request an instruction that the 20 witness summarize the submitted oral written testimony. 21 The oral presentation is going beyond the scope of the 22 testimony as it was submitted. 23 C.O. STUBCHAER: Mr. Brandt. 24 MR. BRANDT: The United States would like to join in 25 that objection. CAPITOL REPORTERS (916) 923-5447 4587 1 C.O. STUBCHAER: Mr. Whitridge, Mr. Birmingham is 2 correct. The purpose of the oral testimony is to summarize 3 the written testimony. It should not go beyond the scope 4 of the written testimony. 5 MR. WHITRIDGE: I'm happy. As a result of the 6 various changes which occurred in turn as a result of the 7 operation of the dams, anadromous fish populations on the 8 Trinity River have declined since the dam construction 9 approximately 80 to 90 percent, as referenced in our 10 Exhibits 5 and 11. 11 Coho salmon are now listed as threatened under the 12 Federal Endangered Species Act. Steelhead are proposed for 13 listing. Chinook salmon numbers remain substantially 14 depleted. The Trinity River is listed as a water body 15 impaired by sediment by the Regional Water Quality -- the 16 North Coast Regional Water Quality Control Board. 17 The 1955 acts of congress, which authorized the 18 dams on the Trinity, also authorized and directed the 19 Secretary of the Interior to adopt appropriate measures to 20 ensure the preservation and propagation of fish and 21 wildlife. In 1979 the Interior Solicitor concluded that 22 in-basin flows determined by the Secretary to be necessary 23 to meet in-basin needs take precedence over needs to be 24 served by out-of-basin diversions. That's our Exhibit 7. 25 Accordingly, and with other legal requirements in CAPITOL REPORTERS (916) 923-5447 4588 1 mind, Secretary Cecil Andrus in 1981 and Secretary Manuel 2 Lujan in 1991 ordered that minimum in-stream flows be 3 increased to 340,000 acre-feet per year. That's our 4 Exhibits 10 and 11. Please note that our Exhibit 11 is 5 dated 1991. It's mistyped as 1981 in our exhibit 6 identification index. 7 This increased requirement for in-stream flows was 8 codified by the Central Valley Project Improvement Act of 9 1992, which is excerpted in our Exhibit 9, pending a 10 permanent flow decision. For the protection of in-stream 11 and in-basin beneficial uses, a 340,000 acre-foot annual 12 dam releases improvement over the 120,500 acre-feet, which 13 the permits you administered still require; but it amounts 14 to only 27 percent of the average annual flow according to 15 the Lujan decision, which is in our exhibit. It 16 represents -- it's capable of creating -- or it was capable 17 of creating in 1991, 56 percent of the optimum habitat for 18 fish. 19 MR. BIRMINGHAM: Excuse me. Again, I'm going to 20 object and request that the witnesses be instructed to 21 summarize what is written in Exhibit 15 and Exhibit 1. The 22 specific references to percentages of fishery improvements 23 are stated nowhere in the written exhibits. 24 MR. WHITRIDGE: We intended our testimony to include 25 everything we submitted. CAPITOL REPORTERS (916) 923-5447 4589 1 MR. JACKSON: Mr. Stubchaer? 2 C.O. STUBCHAER: Mr. Jackson. 3 MR. JACKSON: For the purposes of the record, is has 4 been the procedure of the Board for many years and, 5 certainly, since the beginning of this hearing that the 6 written testimony was to support the evidence attached to 7 it as exhibits. 8 The exhibits are contained, in this case, in 9 Trinity County Exhibits 1 through 29. Those are government 10 documents which are being summarized as part of the 11 testimony. They are referred to in the testimony. And if, 12 in fact, the testimony was just given to you directly 13 without Trinity County indicating to you which exhibit you 14 would find this information, it would be very hard to 15 follow any of these exhibits. The Board usually requires, 16 as we are doing today, that the exhibits be referenced in 17 the testimony. And that's what's been happening here. 18 C.O. STUBCHAER: Thank you, Mr. Jackson. 19 Mr. Birmingham, if you can see specific incidences 20 where it's beyond the written testimony with the exhibits, 21 we'll entertain that objection. 22 MR. BIRMINGHAM: Well, the purpose of the oral 23 summary is to summarize what is in the written testimony. 24 The statements that were just made go beyond what is in the 25 written testimony. There may be that statement in the -- CAPITOL REPORTERS (916) 923-5447 4590 1 in an exhibit, but that's not the purpose of oral summary. 2 The purpose of the oral summary is not to tell us what's in 3 the exhibits, it's to tell us what's in the written direct 4 testimony. 5 And, in fact, I will point out that there are 6 exhibits that -- to which there is no reference in the 7 written testimony. And upon hearing a reference to those 8 exhibits, I'm going to stand up and object. But the 9 purpose of the summary is just that, to summarize what is 10 in the written testimony. 11 C.O. STUBCHAER: Ms. Leidigh? 12 MS. LEIDIGH: Just a moment. 13 C.O. CAFFREY: Just for the record, I have arrived 14 and fully charged. And, of course, my contacts have made 15 me aware of some of the comments that were made about dead 16 batteries. 17 MEMBER BROWN: We took names, Mr. Chairman. 18 C.O. CAFFREY: And I already have them. Thank you. 19 I'm going to -- by the way, just for the record, I'm going 20 to ask Mr. Stubchaer to continue to serve as Hearing 21 Officer for whatever length of time this morning is 22 appropriate since I was not here. And I think it would be 23 disruptive if I were to try to figure out what has been 24 going on. 25 MR. BIRMINGHAM: You didn't miss much. CAPITOL REPORTERS (916) 923-5447 4591 1 MR. O'LAUGHLIN: Mr. Stubchaer, may I be -- 2 C.O. STUBCHAER: No, Mr. O'Laughlin, Ms. Leidigh is 3 pending. 4 MR. O'LAUGHLIN: Oh, okay. 5 MS. LEIDIGH: Okay. Normally what we have done is 6 receive written testimony which contains a number of 7 references to exhibits that are attached to the written 8 testimony. And the written testimony in a number of 9 instances, including probably some that Mr. Birmingham has 10 done but I can't swear to that, but in many instances I 11 noticed that there have been substance that was not 12 specifically set forth in the written testimony that was 13 discussed by the witnesses during the course of their oral 14 testimony summarizing an exhibit, showing how it works and 15 so on. 16 And it appears to me that that has been practiced 17 to show these exhibits as part of the oral summary. They 18 are attached. They are available to everybody. I think it 19 is fair to the parties, given that they have the material 20 in advance and that there's nothing that anybody is being 21 deprived of by not having it all repeated in the written 22 testimony. 23 C.O. STUBCHAER: We do have one case where testimony 24 was stricken because it went outside the written statement. 25 But I don't recall if there were any exhibits attached to CAPITOL REPORTERS (916) 923-5447 4592 1 that, I think it was just a brief two-page written 2 statement. 3 Now, Mr. O'Laughlin. 4 MR. O'LAUGHLIN: Mine is more of a question than it 5 is a statement. Are we to understand, then, that if a 6 party attaches numerous treaties and documents and other 7 materials, such as has been done in this case; and, yet, in 8 the written material provided by the parties there is no 9 reference to that material specifically, that we're on 10 notice then that anyone who comes up to testify can use any 11 portion of any of those documents and testify about 12 anything in regards to those attached documents? 13 Because right -- in regards to this, I'm not 14 taking sides either way, Trinity County has presented a lot 15 of exhibits in regards to their testimony. I've read most 16 of it, but I -- unfortunately, when you read the material 17 you can't tell who's going to be testifying about what, or 18 what they're going to be taking out of that testimony and 19 using as their written evidence to the Board. So that's 20 what's making it difficult, from my standpoint, on this 21 summary. 22 C.O. STUBCHAER: I see your question. It seems to me 23 that the exhibits used in the direct testimony should be 24 cited in the written materials. 25 MS. LEIDIGH: Yes. CAPITOL REPORTERS (916) 923-5447 4593 1 MR. BIRMINGHAM: Not only should they be cited in the 2 written materials, but there should be a statement in the 3 oral -- or in the written testimony as to what the exhibit 4 means and why it's relevant and what the witness is going 5 to take out of that exhibit for purposes of his direct 6 examination. And I resent Ms. Leidigh's statement that she 7 has heard witnesses that I have presented go beyond the 8 scope of their -- 9 MS. LEIDIGH: Excuse me. I didn't say that -- 10 C.O. STUBCHAER: Wait. I'm going to be a peacemaker 11 here. We will disregard any comments to your witnesses' 12 alleged statements. And I don't want to see a battle royal 13 go on. 14 So go ahead, Mr. Birmingham. You can -- 15 MR. BIRMINGHAM: The point is, Mr. Stubchaer, we have 16 lots of exhibits here that were submitted by Trinity 17 County. Trinity County -- Trinity County could very easily 18 have said in its written testimony, as required by this 19 Board's regulations, this has been the effect of the 20 construction of the dam. This has been the effect of the 21 release of 340,000 acre-feet and this was the impact in a 22 specific year and give us the specific information in the 23 written testimony and then cite the exhibit. They didn't 24 do that. 25 Instead, what we have is we have a very general CAPITOL REPORTERS (916) 923-5447 4594 1 statement. And now this morning, for the first time, we 2 are receiving specific direct testimony with information 3 taken out of the exhibits that is contrary to the Board's 4 regulations. And, again, what Ms. Leidigh is telling me is 5 since I haven't objected to it in the past, I'm going to 6 need to start objecting every time. 7 C.O. STUBCHAER: Mr. Jackson. 8 MR. JACKSON: Yes. Part of this problem is caused by 9 the restriction of direct testimony to 20 minutes. It is 10 almost impossible to provide this Board with an evidentiary 11 record and to include everything that you're going to use 12 in a situation this large within 20 minutes. 13 The point is that these documents explain the 14 existing situation on the Trinity River. They explain why 15 the Trinity needs water back. And they explain why there 16 is, in the opinion of Trinity County, an unreasonable use 17 in the place that the water goes. And, essentially, that's 18 what the oral testimony says. 19 We are summarizing the conclusions and the 20 statements in the oral testimony by indicating where in the 21 record you would find the proof for that conclusion. 22 That's exactly what you -- all you have time to do in the 23 20 minutes that are limited for each witness. 24 C.O. STUBCHAER: Mr. Jackson, I would respond that if 25 the -- the 20 minutes is to summarize the written CAPITOL REPORTERS (916) 923-5447 4595 1 testimony. If the written testimony is completed and 2 include the citations and the references within the written 3 testimony, so they can be read by the parties beforehand. 4 Mr. Birmingham. 5 MR. BIRMINGHAM: Mr. Jackson is just flat wrong. The 6 written testimony -- there's no limitation on the written 7 direct testimony that can be submitted. In fact, in this 8 hearing we have seen written testimony consisting of 9 hundreds of pages. East Bay MUD is an excellent example. 10 There were hundreds of pages of testimony with detailed 11 descriptions in the written testimony of what was shown in 12 the exhibits with a reference to the exhibits and then the 13 exhibits were attached. And their witnesses each 14 summarized those hundreds of pages of written testimony in 15 20 minutes. 16 The purpose of this oral presentation this morning 17 is to summarize. It's not to go beyond the scope of what 18 is in the written testimony and then tell us specifically 19 what's in exhibits that are attached or submitted within 20 them. 21 C.O. STUBCHAER: Thank you. We're going to go off 22 the record for a moment. 23 (Off the record from 9:58 a.m. to 10:02 a.m.) 24 C.O. STUBCHAER: Back on the record. Mr. Jackson. 25 MR. JACKSON: Yes, sir. CAPITOL REPORTERS (916) 923-5447 4596 1 C.O. STUBCHAER: You're going to instruct your 2 witnesses to confine their summary to the written remarks; 3 or as an alternative for you and Trinity County, withdraw 4 from participation in this phase and come back in Phase 5 II-A with the revised testimony with the citations to the 6 various exhibits in place so that we have a more organized 7 presentation. 8 MR. JACKSON: The problem with Phase II-A is that, 9 essentially, this is a water quality question. And that's 10 where we are right now. Clearly it will be a subject of a 11 much larger case in Phase VIII as we begin to go after the 12 unreasonable use of the Westlands' in many ways. But 13 basically this seems to be the appropriate place. And so: 14 Thank you for your offer, but we're not going to withdraw 15 the testimony. 16 C.O. STUBCHAER: All right. Then, please, instruct 17 the witnesses -- or the witnesses are instructed, I will 18 instruct them, to confine their summary to the written 19 remarks. 20 MR. WHITRIDGE: Which excludes -- 21 C.O. STUBCHAER: Which excludes exhibits which are 22 not cited in the written testimony. If they're cited in 23 the written testimony, you may be heard. 24 MR. WHITRIDGE: Thank you, sir. I apologize if my 25 remarks seem to drag on and appear disjointed. There has CAPITOL REPORTERS (916) 923-5447 4597 1 been a major effort underway for some years to restore the 2 Trinity River including by means of flows. This is -- 3 there has been a 12-year flow study commissioned first by 4 Secretary of Interior Andrus in 1981 to determine the 5 long-term flow needs of the Trinity River. 6 That study is about at its conclusion. The 7 report -- the final report is almost issued. The 8 recommendations from that report are being studied as one 9 alternative in the Trinity River main stem fishery EIS/EIR 10 which is being prepared to assist guidance and support a 11 decision by the Secretary of Interior on the long-term flow 12 regiment of the Trinity River. 13 The restoration, the impetus for restoration 14 including flows as necessary is not so much -- is not any 15 kind of conclusionary environmentalism on the Federal 16 agency's part. As you've been probably able to figure out, 17 it's not the political and legal muscle of Trinity County, 18 or Trinity watershed; it is, in fact, the requirements of 19 the State and Federal law including Area of Origin 20 Statutes, Public Trust Doctrine, Fish and Game Code Section 21 5937, clear and repeated directions from congress in the 22 1955 Act the 1984 Act and the 1992 CVPIA. 23 And trust responsibility of the Federal Government 24 to downstream Indian tribes, which are, I believe, 25 referenced in our written testimony in Exhibits 23 and 24. CAPITOL REPORTERS (916) 923-5447 4598 1 Interior Solicitors examined those Federal Trust 2 responsibilities. Each of those requirements of the 3 different strands of State and Federal law seem to require 4 restoration of the river and assign priority of in-basin 5 needs for water over out-of-basin uses. 6 Interior Solicitors', in our two exhibits, 23 and 7 24, make an -- a thorough examination of the extensive 8 legal record and demonstrates that the Federal Government 9 intended to, had the power to and did reserve the Hoopa 10 Valley and Yurok tribes, Indian tribes the right to catch 11 Trinity and Klamath River fish for ceremonial subsistence 12 and/or commercial uses. 13 Congress has carefully preserved this right over 14 the years and the courts has consistently enforced it. 15 According intermittently from Exhibit 24, beginning at Page 16 6, the executive order setting aside whether now the Hoopa 17 and Yurok Valley reservations also reserve rights to an 18 in-stream flow sufficient to protect the tribe's rights to 19 take fish within their reservations, citations are 20 provided. As with the Klamath tribes, the Yurok and Hoopa 21 tribes' water rights include the right to prevent other 22 appropriators -- 23 MR. BIRMINGHAM: Excuse me. 24 C.O. STUBCHAER: Mr. Birmingham. 25 MR. BIRMINGHAM: Again, we are going beyond the -- CAPITOL REPORTERS (916) 923-5447 4599 1 there are references in the written testimony to these 2 Solicitors' opinions, but we are going beyond the 3 description of those Solicitors' opinions that are 4 contained in the written exhibits. 5 I'm, again, requesting the instruction that the 6 witnesses limit -- perhaps, it would be easier if they just 7 read into the record the written testimony that they 8 submitted. They probably could do it in 20 minutes. 9 C.O. STUBCHAER: You know that's interesting, people 10 are saying that's a good idea to read it, but we discourage 11 reading testimony into the record, but, perhaps, in this 12 case it would be more expeditious. 13 MR. BRANDT: Could I just add, part of this -- I've 14 been trying to find out how the Interior Solicitors' 15 opinions relate. Not that I object to having those in the 16 record, but this is part of why I want to join in the kind 17 of objections that have been put on, because I did not 18 understand how they directly related to the case and what 19 was in the testimony. 20 This is an example. That's why I want to object 21 to the use and references to those. Because now this is 22 the first time I've heard how they relate to somehow -- and 23 I'm not still not clear how they relate to what their 24 testimony is. So on that basis, I'd like to object. 25 C.O. STUBCHAER: Mr. Jackson. CAPITOL REPORTERS (916) 923-5447 4600 1 MR. JACKSON: One of the advantages of not doing this 2 piecemeal is that after they hear the evidence this 3 Solicitor will know what his bosses really think. It is 4 approaching bizarre to have a Deputy Regional Solicitor 5 arguing that the Regional Solicitors' opinions in regard to 6 the facility by which water is delivered, the Central 7 Valley Project facility are somehow not understandable to 8 him. 9 Clearly somebody in the Solicitor's Office 10 understands the Trinity River. And we've tried to put in 11 their understanding, because we're operating on the basis 12 of that understanding. So we -- all of this gets hooked up 13 at the -- after both parties have testified, one party is 14 testifying to the affects on the Trinity River. The other 15 party will testify as to where the water goes, the place of 16 use, the contracts and the affect that the water has where 17 it goes based upon the evidence in the exhibits. 18 This is very clear. The fact that it's not clear 19 is because it specifically points out two problems and 20 connects them, which is what the unreasonable use position 21 of Trinity County is. 22 C.O. STUBCHAER: So far I've been unable to get the 23 tie between this and the salinity issue, which is the 24 subject of this phase of the hearing. You think we could 25 get to that quickly? CAPITOL REPORTERS (916) 923-5447 4601 1 MR. BRANDT: Can I also just state so we're clear 2 here, it's not that I don't understand what our office has 3 stated, or our conclusions. I've been trying to figure out 4 how it relates to where -- their argument and precisely to 5 the salinity argument and all those kinds of things. 6 That's what I'm trying to get here. I mean I can't get 7 this. And I guess I'm right there, but it's not a question 8 that I don't understand what our office says. So I object 9 to your characterization of my objection. 10 MR. JACKSON: Well, I don't know whether I can 11 withdraw a characterization or not, but I will. 12 C.O. STUBCHAER: The weight of the evidence will go 13 to that issue. 14 MR. JACKSON: Absolutely. We would be done with this 15 evidence without these objections. I mean, so the 16 consuming of time is a practice tactic on the part of 17 Mr. Birmingham and Westlands to avoid the connection. 18 Now, when we're -- in putting on this evidence it 19 seemed to us logical to break it down into where the water 20 is stolen from and where it is abused into two witnesses. 21 We're doing the stolen part. And when we get to where its 22 abused, that will be Mr. Stokely's testimony. So if you 23 can bear with us, we'll be done in the 40 minutes. 24 C.O. STUBCHAER: Less time-out for objections and 25 discussions. CAPITOL REPORTERS (916) 923-5447 4602 1 MR. JACKSON: Yeah. 2 C.O. STUBCHAER: Mr. Whitridge, you think it would be 3 helpful if you read your written testimony? 4 MR. WHITRIDGE: I would prefer not to try to start 5 all over. I can finish in four or five minutes if left to 6 my own devices here. 7 C.O. STUBCHAER: Please, do so. And, please, remain 8 within the scope of your written testimony and references. 9 MR. WHITRIDGE: As we say in our written testimony, 10 one of the requirements for restoration of the Trinity 11 River, including buying water if necessary, is the Federal 12 Trust responsibilities to downstream Indian tribes, which 13 in this case include the Yurok and Hoopa Valley tribes. 14 I was interested in clarifying that trust 15 responsibility and exploring it with you in case you don't 16 get to deal with Indian issues very often; instead I just 17 have to refer you to our exhibit as our written testimony 18 does. 19 In summary of this part, what we have is a river 20 which has been damaged, a river has which the law requires, 21 both Federal and State law and several other strands 22 requires to be restored. That requirement is ineluctable. 23 It will be restored probably by the use of more water. At 24 any rate, that is one of the options that's coming very 25 close to a formal decision. CAPITOL REPORTERS (916) 923-5447 4603 1 Pending that formal decision, we suggest that you 2 are not -- you are not able to determine how much Trinity 3 water is available for other particularly out-of-basin uses 4 such as salinity control. If a million acre-feet per year 5 of Trinity water is going into the CVP and one of the 6 issues and questions before this Board is whether to use 7 CVP water to dilute, or move around to have any affect on 8 salinity, our water is at issue. 9 And I'm telling you, you don't know -- you 10 wouldn't be able to determine how much of our water, how 11 much Trinity River water is available for any such use 12 until those documents come out. And, therefore -- and the 13 Secretary of Interior makes a decision. 14 Therefore, Trinity asks that you reframe from 15 allowing any pledge, hypothecate, assignment, agreement, or 16 any other form of use of Trinity water out of the basin and 17 don't approve -- outside this basin. And don't approve any 18 arrangement, or scheme which envisions, or might require 19 the use of Trinity water until those documents come out. 20 And that's a very simple request. 21 We also request that you take some step to bring 22 your existing regulation out of the Dark Ages of the 1950's 23 by improving, by implementing a -- or including a condition 24 in the permit that minimum in-stream flows be a minimum of 25 340,000 acre-feet which is what the CVPIA requires and it CAPITOL REPORTERS (916) 923-5447 4604 1 is, in fact, a current practice. 2 I have two remaining jobs which are smaller. I'd 3 like to familiarize you with our maps. And I do need to 4 alert you to one error in our written testimony. Exhibit 5 1, which is our written testimony, reports that congress 6 intended Trinity River water to be combined with other CVP 7 sources to irrigate 525,000 acres on the west side of the 8 San Joaquin Valley and 200,000 acres in the Sacramento 9 Canals areas. This comparison is repeated, though, without 10 the numbers in Exhibit 15, which is also our written 11 testimony. 12 In fact, the House and Senate reports, which are 13 included as Exhibits 3 and 4, do discuss 200,000 acres in 14 the Sacramento Canals area, but they do not give an acreage 15 figure for the west side San Joaquin Valley. So what our 16 testimony should have said and should say is that Congress 17 intended the delivery of water, of 525,000 acre-feet of 18 water to the west side of the San Joaquin. 19 MS. WHITNEY: Excuse me. Could you identify the 20 page? 21 MR. BIRMINGHAM: Page 1, Exhibit 1 and -- 22 MR. WHITRIDGE: Page 1 of Exhibit 1 and Page 1 of 23 Exhibit 15. The correct figures, therefore, are that 24 Congress intended as reflected in both the House and Senate 25 reports, which are Exhibits 3 and 4, the delivery of CAPITOL REPORTERS (916) 923-5447 4605 1 525,000 acre-feet to the west side of the San Joaquin and 2 665,000 acre-feet, both per year, to Sacramento Canal's 3 area when it authorized the Trinity Project to be built. 4 So these maps -- this one is our Exhibit 17. It 5 shows before the Trinity came on-line. This blue line 6 describes the west side San Joaquin lands that were 7 authorized to be irrigated and were being irrigated when 8 the Trinity came on-line, that area was expanded to include 9 everything within this dotted green line as it is there. 10 So it expanded from this, basically, to include 11 this all the way down to there. The colored areas show 12 selenium concentrations in soils. This is taken from the 13 Rainbow report. These three colors describe -- depict what 14 we describe as the worse of the worse selenium -- 15 C.O. STUBCHAER: Mr. Whitridge, for the purpose of 16 the written record, would you describe the colors rather 17 than say "these three colors." 18 MR. WHITRIDGE: Yes, I'm sorry. We have a 19 radioactive red at the center describing the worse of the 20 worse of the worse. A -- that's -- we give -- I'm sorry. 21 That's more than 88 micrograms per gram of soil. We have a 22 pinkish color sitting farther out, 59 to 88 micrograms per 23 gram of soil of selenium. And let us call it lavender 24 colored today. 25 C.O. STUBCHAER: That's good. CAPITOL REPORTERS (916) 923-5447 4606 1 MR. WHITRIDGE: Therefore, the three colors together 2 that I've mentioned depict the areas in this area which 3 have selenium soil concentrations of .36 micrograms per 4 gram or greater. 5 So the area between this blue line and this green 6 line is the area that began to be irrigated when Trinity 7 water came on-line. It was not irrigated before Trinity 8 water came on-line, it started to be irrigated when Trinity 9 water came on-line. So that's using CVP water and it was 10 only available once Trinity water came on-line. Could you 11 put up this other map. The good news is I'm to my last 20 12 seconds. 13 MS. WHITNEY: Does that map have an exhibit number? 14 MR. WHITRIDGE: This is Trinity County 17. 15 MR. JACKSON: This is Trinity County Exhibit Number 16 18. 17 MR. BIRMINGHAM: I'm going to object to any reference 18 to Exhibit 18, there is no reference to Exhibit 18 in any 19 of the -- either Trinity County Exhibit 1 or Trinity County 20 Exhibit 15. 21 C.O. STUBCHAER: But it is an exhibit in the record. 22 MR. JACKSON: Yes. 23 MR. BIRMINGHAM: There is an -- there is an exhibit, 24 or there's a map that has been introduced as -- or has 25 been -- excuse me. CAPITOL REPORTERS (916) 923-5447 4607 1 There's been a map marked for purposes of 2 identification, it has not been introduced as Trinity 3 River -- Trinity County Exhibit 18. There is no reference 4 to this exhibit anywhere in the written testimony of 5 Trinity County. 6 C.O. STUBCHAER: All right. I'm going to sustain the 7 objection. 8 MR. JACKSON: Could I be heard before you do for the 9 purpose of this record? 10 C.O. STUBCHAER: All right. 11 MR. JACKSON: This is a map which is already in the 12 record. It's a map that is in the Board's record. The map 13 was -- comes from the Trinity County EIR -- the State -- 14 excuse me, comes from your EIR. This data was picked from 15 the State Board EIR and is simply drawn by a GIS. It's 16 already in your record. You have the information on which 17 its based. It is overlaid on the selenium soil map and 18 simply is for illustrative purposes. 19 C.O. STUBCHAER: Mr. Birmingham. 20 MR. BIRMINGHAM: It is not a map taken from the EIR. 21 Instead, it is a map that was prepared by someone, we don't 22 know who. It contains information, we don't know what. 23 Based on the written testimony, it may depict some 24 information that can also be found on a map contained in 25 the EIR, but it's not a map from the EIR. CAPITOL REPORTERS (916) 923-5447 4608 1 And there is -- in as much as there is no 2 reference to it in the written testimony, we object to any 3 reference to it during the oral summary of the testimony. 4 C.O. STUBCHAER: I will sustain the objection. 5 MR. GALLERY: Mr. Chairman, may I just ask a question 6 so that I'm clear? 7 C.O. STUBCHAER: Yes. 8 MR. GALLERY: The evidence which is presented by the 9 parties includes testimony and it sometimes includes 10 separate exhibits, which are not referred to in the 11 testimony. What you're saying here is that the witness who 12 is testifying can only refer to exhibits that his testimony 13 relates to. But that doesn't mean that we can't, 14 independently, put exhibits in evidence that stand on their 15 own two feet. Is that -- am I correct about that? I mean 16 we don't have to -- 17 C.O. STUBCHAER: I'll reconsider. Ms. Leidigh? 18 MS. LEIDIGH: Yes. I had a slightly different point. 19 I wanted to point out that if, indeed, that document is in 20 the EIR on the consolidated and conformed place of use, 21 which is indicated at the bottom there, then, that is State 22 Board Exhibit 2. 23 MR. BIRMINGHAM: Except this map contains additional 24 information. It contains the same information that is 25 taken from EIR map, but there's more information. And with CAPITOL REPORTERS (916) 923-5447 4609 1 respect to what Mr. Gallery observed, again, the purpose of 2 oral summary is to summarize what's in the written 3 testimony. If there is no reference to a map, or to an 4 exhibit in the written testimony that's submitted, how can 5 this possibly be a summary of what is contained in the map 6 if what we're doing is summarizing the oral testimony -- 7 the written testimony. 8 C.O. STUBCHAER: You know it does occur to me that 9 quite a number of parties have used exhibits to illustrate 10 their testimony that where not even submitted as part of 11 the written record. 12 MR. BIRMINGHAM: And in each one of those cases they 13 were referred to in written testimony submitted by either 14 that party or some other party. 15 C.O. STUBCHAER: No. I'm talking about exhibits that 16 were presented for purposes of illustration that summarized 17 other exhibits. 18 MR. BIRMINGHAM: But this does not summarize 19 anything. 20 MR. JACKSON: Yes, it does. 21 C.O. STUBCHAER: Okay. Time-out. 22 (Off the record from 10:26 a.m. to 10:32 a.m.) 23 C.O. STUBCHAER: Okay. Back on the record. My 24 previous ruling sustaining the objection will stand as this 25 material is not referred to -- this exhibit was not CAPITOL REPORTERS (916) 923-5447 4610 1 referred to in the written testimony. 2 Mr. Whitridge. 3 MR. WHITRIDGE: Thank you, sir, too bad, that was a 4 good map. 5 MR. BIRMINGHAM: Move to strike. 6 MR. WHITRIDGE: That was a bad map. 7 MR. WHITRIDGE: I'm about to -- I'm finished. Thank 8 you very much for your patience. 9 C.O. STUBCHAER: Thank you, Mr. Whitridge, for your 10 patience. I know this can be a trying ordeal, but that's 11 just part of the process, that's part of Democracy. And 12 before we proceed, we're going to take, I'm going to make 13 it a 15-minute break this morning. We've earned an extra 14 three minutes. 15 (Recess taken from 10:33 a.m. to 10:48 a.m.) 16 C.O. STUBCHAER: Okay. We'll go back on the record. 17 And you want to introduce your next witness? 18 MR. JACKSON: Yes. I have one more question of 19 Mr. Whitridge. 20 Mr. Whitridge, are your qualifications summarized 21 in Trinity County Exhibit 14? 22 MR. WHITRIDGE: Yes, they are. 14, I believe. 23 MR. JACKSON: Mr. Stokely, will you indicate for the 24 record who you are and summarize your testimony, sir. 25 MR. STOKELY: Yes, thank you. Members of the Board, CAPITOL REPORTERS (916) 923-5447 4611 1 my name is Tom Stokely. I'm senior planner with the 2 Natural Resources Division of the Trinity County Planning 3 Department. And it really is a pleasure to be here with 4 such a captive audience. I find this kind of enjoyable. 5 I'm, I guess, a little masochistic. We've been waiting for 6 an opportunity like this for a long time and we appreciate 7 being here. 8 My oral testimony will focus on why the delivery 9 of Trinity River water to the selenium and salt laced soils 10 in the western San Joaquin Valley is a wasteful and 11 unreasonable use of water in violation of Article 10, 12 Section 2 of the State Constitution and how Trinity County 13 recommends that as part of these proceedings that the State 14 Board rectify this unacceptable situation. 15 As you know, we're in Phase V of these 16 proceedings. And it focuses on meeting the salinity and 17 the dissolved oxygen standards for the Delta. Selenium as 18 shown in our Exhibit 17 goes along with the salt problem. 19 The highly seleniferous soils in the western San Joaquin 20 Valley contain high amounts of salt as well as selenium and 21 other trace elements. 22 Irrigation of those lands mobilizes both the salt 23 and the selenium as well as other harmful trace elements 24 such as boron and arsenic where they eventually end up in 25 the San Joaquin River. Damming the Trinity River allowed CAPITOL REPORTERS (916) 923-5447 4612 1 two ecosystem disasters to occur in California. 2 The first, which Mr. Whitridge talked about, the 3 damage to the Trinity River and its fishery. The basin 4 plan for the north coast region references flow depletion 5 as one of the major factors responsible for the decline of 6 steelhead in the Trinity River. The Trinity River is on 7 the north coast Regional Water Quality Control Board's 8 303(d) list of impaired bodies as a result of sediment 9 pollution. 10 A TMDL is scheduled for completion in the year 11 2001. Our coho salmon are listed as threatened species. 12 The steelhead are proposed for listing under the Federal 13 Endangered Species Act. 14 The second major disaster related to damming the 15 Trinity River is the Delta and its beneficial uses. The 16 Trinity River Division of the Central Valley Project 17 allowed increased pumping in the Delta, which resulted in 18 fish losses through entrainment and reversed flows in the 19 San Joaquin River. 20 It also, more importantly for this proceeding, 21 allowed irrigation of the highly saline and seleniferous 22 soils in the western San Joaquin Valley, as shown in our 23 Exhibit 17. Thus, Trinity County contends that it's a 24 wasteful and unreasonable use to take water from the area 25 of origin at great harm to the public and tribal trust CAPITOL REPORTERS (916) 923-5447 4613 1 assets of that region to then deliver water to another area 2 and harm the Public Trust assets there. 3 We have relied substantially on Exhibit 22, a San 4 Joaquin law review article by Mr. Felix Smith for our 5 description of the wasteful and unreasonable irrigation of 6 the soils in question. 7 First, there is the 303 impaired water bodies list 8 for the Central Valley, which is Exhibit 20. If one 9 follows the trial of impaired water bodies from the Trinity 10 River, which is impaired and on the list, not on that list 11 but a different list, to the Delta we see the southern 12 Delta impaired for electrical conductivity, which is my 13 understanding, essentially, a salt. 14 The San Joaquin River is enlisted as impaired by 15 selenium, boron and electrical conductivity. Moving up 16 river we have Salt Slough and Mud Slough impaired by 17 selenium, electrical conductivity and boron. Moving 18 further up slope we have Panoche Creek, which is in the 19 heart of these highly seleniferous and saline soils 20 impaired by selenium, sediment and mercury. 21 MR. SEXTON: Objection, Mr. Chairman. I don't see 22 anything in this witness' testimony that makes any 23 reference to soils other than selenium tainted soil. He's 24 now testifying about boron, other constituent salts. I 25 don't see any reference in the testimony. CAPITOL REPORTERS (916) 923-5447 4614 1 C.O. STUBCHAER: All right. Mr. Stokely, please, 2 confine your summary to the written testimony. 3 MR. STOKELY: Okay, as referenced in our exhibits? 4 C.O. STUBCHAER: The exhibit which is referenced in 5 your testimony. 6 MR. STOKELY: Yes, which is Exhibit 22. 7 C.O. STUBCHAER: All right. 8 MR. NOMELLINI: Mr. Chairman? 9 C.O. STUBCHAER: Mr. Nomellini. 10 MR. NOMELLINI: The testimony does talk about the 11 salts as well as selenium. And it talks about the damage 12 to the water bodies from the selenium as a result of 13 agricultural activities as well. So I think salts, on Page 14 2 of the Exhibit 15, second paragraph, third line from the 15 bottom talks about: 16 (Reading): 17 "Damming the Trinity River to allow irrigation 18 of lands containing harmful salts and trace 19 elements." 20 So just for the state of the record, the testimony 21 does include it. 22 C.O. STUBCHAER: Thank you, Mr. Nomellini. 23 Mr. Whitridge, during these interruptions you're not 24 penalized for your 20 minutes. I'll give you the time to 25 recover and -- Ms. Leidigh? CAPITOL REPORTERS (916) 923-5447 4615 1 MS. LEIDIGH: Just to correct, I believe it's 2 Mr. Stokely. 3 C.O. STUBCHAER: I'm sorry. I apologize. 4 MR. WHITRIDGE: He's been called worse. 5 MR. STOKELY: Yes. And thank you, Mr. Nomellini. 6 Going on, secondly, as discussed in Exhibit 22, 7 there are three separate State laws prohibiting polluted 8 discharges under the California Fish and Game Code, 9 California Health and Safety Code and the California Water 10 Code. 11 Third, selenium standards in the San Joaquin River 12 are routinely violated at least 21 of 24 times in 1993 and 13 '94. I do not have any information more recent than that. 14 Fourth, and at least probably not the least, is Water 15 Quality Order 85-1, again referenced in our Exhibit 22, 16 which ordered the shut down of the San Luis drain into the 17 former Kesterson National Wildlife Refuge based on findings 18 that drainage water entering Kesterson containing many 19 salts or metals in concentrations known to be harmful to 20 humans, animals or aquatic life. 21 MR. BIRMINGHAM: I'm going to object. 22 C.O. STUBCHAER: Mr. Birmingham. 23 MR. BIRMINGHAM: I'm going to object on the grounds 24 that the witness is going beyond the scope of the written 25 testimony. The witness is summarizing not what's in his CAPITOL REPORTERS (916) 923-5447 4616 1 written testimony, Trinity County Exhibit 15, but is what 2 is -- he's summarizing what is in the law review article 3 attached to Exhibit 22. 4 Again, it's my understanding that the purpose of 5 this summary is to tell us what's in Exhibit 15 and not 6 what is not described in the written testimony, but comes 7 from the exhibits. 8 C.O. STUBCHAER: I don't have that reference right in 9 front of me, but is there reference to the law review 10 article in your written testimony? 11 MR. STOKELY: Yes. 12 C.O. STUBCHAER: All right. Then, with that you may 13 proceed. 14 MR. SEXTON: Mr. Chairman, I'm going to object again. 15 I mean if this witness is allowed to submit a law review 16 article, and we haven't been able to make any determination 17 about whether this witness is an expert or is not an 18 expert; then, essentially, what this Board is doing is 19 allowing this witness to testify based on hearsay evidence 20 and assign whatever weight the Board chooses to do so to 21 that evidence without giving us an opportunity to determine 22 whether the witness is even capable of properly 23 characterizing what's in that evidence. 24 I mean it's the same as me trying to take a law 25 review article on nuclear physics and summarizing it before CAPITOL REPORTERS (916) 923-5447 4617 1 some administrative body. 2 C.O. STUBCHAER: Mr. -- 3 MR. SEXTON: I'm not qualified to do that. 4 C.O. STUBCHAER: Mr. Sexton, during cross-examination 5 you will have an opportunity to explore that and 6 demonstrate to the Board, if you're able, why we should not 7 put much weight on that testimony. 8 Please, proceed. 9 MR. STOKELY: Thank you. Again, getting back to Page 10 3 of Exhibit 15 our direct testimony, the details of the 11 wasteful and unreasonable use of water are contained in 12 Exhibit -- Trinco, it says 21, it's actually a correction, 13 Exhibit 22. The footnote has the correct exhibit 14 reference. 15 Going on, the State Board concluded that 16 agricultural drainage had caused severe biological and 17 reproductive problems to federally protected migratory 18 birds and was toxic to invertebrates and fish. On Page 43 19 of the Water Quality Order 85-1, which is referenced in our 20 Exhibit 22, the State Board said: 21 (Reading): 22 "Continued irrigation of the affected area of 23 the Westlands Water District could constitute an 24 unreasonable use of water." 25 Further it went on to state: CAPITOL REPORTERS (916) 923-5447 4618 1 (Reading): 2 "That the Water Board found that the Bureau 3 of Reclamation was discharging wastewater which 4 was reaching the waters of the State and 5 creating and threatening to create conditions of 6 pollution and nuisance." 7 It also noted that waste disposal and assimilation 8 are not and cannot be beneficial uses. 9 MR. BIRMINGHAM: Mr. Stubchaer, I'm going to object. 10 What you have done now is -- from now on what I'm going to 11 do is I'm going to bring in my engineers. And they're 12 going to say, "I'm an engineer. Here are my 13 qualifications, Exhibit A, B, C, D, E, F and G." And 14 that's going to be the extent of the written testimony that 15 we submit. 16 And, then, when that engineer comes in, I'm going 17 to say, "Please, summarize your testimony." And he's going 18 to go into Exhibits A, B, C, D, E and F and he's going to 19 tell us what's in those exhibits. That's not the purpose 20 of the written testimony. 21 If Mr. Stokely wanted to explain to us why Exhibit 22 22 is relevant, he should have put it in his written 23 testimony. It's not there. He says there's a detailed 24 explanation in the testimony, that's stated. That's all he 25 needs to tell us in his summary. CAPITOL REPORTERS (916) 923-5447 4619 1 C.O. STUBCHAER: Mr. Jackson. 2 MR. JACKSON: Yes. What Westlands is, obviously, 3 objecting to, all of this information comes out of -- out 4 of government documents. It comes out of the exhibits that 5 have been filed in this case for the last three or four 6 months. Almost all of those exhibits are already in the 7 file in the State Board's own exhibits. 8 The idea that somehow we are not suppose to 9 summarize what the existing history and findings in regard 10 to selenium soils in the San Joaquin is, is that we 11 endlessly reproduce long hearings on the same set of facts. 12 What Mr. Stokely is doing is summarizing what is well 13 within the public record, was in the exhibits, is mentioned 14 in the testimony. 15 And it's simply the conclusions that are 16 inescapable from the existing record that Westlands is 17 objecting to. And I don't think that the State Board 18 should be diverted down this particular dead-end. These 19 are well-known facts within the experience of everyone 20 sitting up there on this Board. 21 MR. BIRMINGHAM: What Mr. Jackson is saying, or -- 22 are points that we will address in cross-examination as 23 we've been instructed to do from the Chair. In fact, what 24 Mr. Stokely is referring to is a law review article written 25 by a biologist quoting from a State Board order. It's not CAPITOL REPORTERS (916) 923-5447 4620 1 a government publication. 2 But, again, that's not the basis of my objection. 3 I'm objecting that the witness in his oral summary is going 4 beyond what is contained in his written testimony. 5 C.O. STUBCHAER: Mr. Birmingham, I understand the 6 basis of your objection, but if the exhibits that he's 7 referring to are referenced in the written testimony, I'm 8 going to permit him to proceed. It may not be the ideal 9 situation. And I recognize that some parties are, perhaps, 10 more experienced in appearing before this Board in 11 organizing their materials than others. 12 But in the interest of getting this case in chief 13 concluded and onto the cross-examination, which is where 14 the substance is really going to be, I'm going to permit 15 him to continue. 16 MR. BIRMINGHAM: I appreciate that, Mr. Stubchaer. 17 All I'm going to ask is that we remember the ruling and 18 what is good for the goose, regardless of their experience, 19 is good for the gander. 20 C.O. STUBCHAER: Mr. Birmingham, if you want to have 21 your next engineer witness come up and say my direct 22 testimony is A through J and you think that proves your 23 case, fine. 24 MR. BIRMINGHAM: It won't, Mr. Stubchaer. 25 C.O. STUBCHAER: Okay. Proceed, Mr. Stokely. CAPITOL REPORTERS (916) 923-5447 4621 1 MR. STOKELY: You can rest assured that the next time 2 I appear I'll do a better job in my written testimony. I'm 3 learning here. I might add that the statements that I just 4 made are contained in -- referenced in Water Quality Order 5 85-1, which is Staff Exhibit 5-L. 6 Fifth, the general policy of the agricultural 7 water management for water purveyors division of water 8 rights, State Water Resources Control Board dated September 9 '84 states: 10 (Reading): 11 "Failure to take appropriate measures to 12 minimize excess application, excess incidental 13 Losses, or degradation of water quality 14 constitutes unreasonable use of water." 15 Sixth, the town of Mendota in the affected area 16 has undrinkable groundwater supplies due to sodium sulfate 17 from irrigation of these soils and accumulation in shallow 18 groundwater. Seventh, other water right holders, such as 19 the U.S. Fish and Wildlife Service and Department of Fish 20 and Game, are unable at times to use up to 29,000 acre-feet 21 of water permitted for fish and wildlife purposes in the 22 Grasslands area. 23 Eight, the toxicity to fish from selenium is 24 severe. Only mosquito fish live in the San Luis drain. 25 Studies have shown that fish such as white sturgeon have CAPITOL REPORTERS (916) 923-5447 4622 1 impaired reproduction when imposed to selenium -- exposed 2 to selenium. And other life stages of fish sustain 3 impairment that is crucial to their survival such as 4 outmigrating smolts from the San Joaquin Valley, salmon 5 smolts from the San Joaquin Valley and its tributaries. 6 Ninth, studies show that selenium bioaccumulates 7 in animal tissues and can be toxic to who or what eats the 8 contaminated tissues. This is exemplified in periodic 9 health advisories for fish and ducks taken from the 10 Kesterson Grasslands area. Mr. Smith's paper notes that no 11 more than four ounces of fish from the Kesterson Grasslands 12 area in a two-week period and -- should be consumed. And 13 pregnant women, nursing mothers and children under 15 14 should not eat any duck or fish meat from the area. 15 Tenth, the contaminated drainage water continues 16 to pose harm to federally protected migratory birds and 17 toxicity to invertebrates and fish. The State Board found 18 in 1996 that 6 of 14 evaporation ponds in the western San 19 Joaquin Valley, totaling 5400 acres, had such elevated 20 levels of selenium that the probability of embryonic 21 deformities in bird populations was high. Surely, even in 22 areas without evaporation ponds birds and other species 23 continue to be exposed to selenium in the water. 24 The State Board has continuing jurisdiction over 25 these issues. Water rights must not infringe on the water CAPITOL REPORTERS (916) 923-5447 4623 1 right uses, or values of others. And those uses cannot be 2 unreasonably impaired. Trinity County contends that the 3 irrigation of soils in excess of .36 micrograms per gram of 4 selenium is a wasteful and unreasonable use of precious 5 water in California, an irreplaceable resource with no 6 alternative product available. 7 Trinity water is better used first and foremost in 8 the Trinity River basin. And after the Trinity River's 9 needs are met, then so-called "surplus water" could be used 10 for other beneficial uses but, certainly, not for 11 irrigating the poisonous soils of the western San Joaquin 12 Valley. 13 The State Board's notice of public hearing asked 14 how the various alternatives in the EIR can be modified to 15 ensure that all applicable provisions of the law are met. 16 We point out the need for action by the State Board on the 17 Trinity River temperature issue. Again, the Trinity River 18 water is diverted to the Sacramento River. If you note, in 19 one of our exhibits we have a letter from the State -- from 20 the U.S. EPA approving the temperature objectives for the 21 Trinity River and stating that controllable factors, in the 22 eyes of the EPA, are, in fact, diversions to the Sacramento 23 River and the Central Valley Project. 24 Shasta Lake has a carryover storage requirement of 25 1.9 million acre-feet due to National Marine Fishery CAPITOL REPORTERS (916) 923-5447 4624 1 Service's biological opinion on Sacramento River winter-run 2 chinook. The purpose of the Shasta carryover storage 3 requirement is to meet Sacramento temperature objectives in 4 the basin plan for the Central Valley, which is 56 degrees 5 year-round at Red Bluff. 6 The Trinity River has similar, but not identical, 7 temperature objectives. We have a 60-degree objective at 8 Douglas City, a daily average from the 1st of July to the 9 14th of September. The purpose of that objective is to 10 protect spring chinook salmon, which have eggs developing 11 inside of them, to protect those holding fish before they 12 spawn. 13 The temperature objective then changes to 56 14 degrees at Douglas City on the 15th of September until the 15 1st of October, that is to protect spawning salmon -- 16 spring chinook in the Trinity River would spawn. And the 17 56-degree temperature is to protect those eggs. 18 The temperature objective then changes to the 19 confluence of the north fork of the Trinity River, which is 20 approximately 40 miles down river from Lewiston Dam, about 21 twice as far as Douglas City. It changes to that on 22 October 1st of every year and it's 56 degrees. That is 23 also to protect the spawning and incubating salmon. At 24 that time, in early October, the fall chinook begin to 25 spawn as well and later on in the year the coho spawn. CAPITOL REPORTERS (916) 923-5447 4625 1 These objectives, these temperature objectives are 2 contained in the Water Quality Control Plan for the North 3 Coast Region approved by this Board and also by the United 4 States Environmental Protection Agency as Clean Water Act 5 standards. 6 It's important for the Board to realize that while 7 the Trinity and the Sacramento Rivers both have basin plan 8 temperature objectives protective of the respective salmon 9 fisheries, the Sacramento River temperature objective is 10 fully implemented through Water Right Orders 90-05 and 11 91-01. Which I might add that I did appear before the 12 Board with the Hoopa Valley Tribe for Water Right Order 13 90-05. I remember Mr. Caffrey was here at the time. 14 Specifically, the Trinity River temperature 15 objectives during the July 1st through September 14th 16 period are not a part of Water Right Orders 90-05 and 17 91-01. That's, quite frankly, because the basin plan 18 temperature objective was approved after the Water Right 19 Order was approved. 20 In addition, the 56-degree objective only applies 21 to Trinity River water diverted to the Sacramento River for 22 Sacramento River temperature protection, not for other CVP 23 project purposes such as power, agricultural, et cetera. 24 So we have an incomplete -- incompletely enforced 25 implemented temperature objective for the Trinity River. CAPITOL REPORTERS (916) 923-5447 4626 1 In addition to this discrepancy between the two 2 rivers using the same waters from the Trinity River for 3 temperature control for salmon, there's no carryover 4 storage requirement in Trinity Lake to meet the temperature 5 objective in the Trinity River basin. While, conversely, 6 there is a carryover storage requirement in Shasta Lake. 7 As shown in our Exhibit 26, which I'd like to put 8 on the board, this is a document out of the Central Valley 9 Project OCAP, Operations Criteria and Plan, showing the 10 relative refill potential of Trinity Lake versus Shasta 11 Lake. If you'll note that Shasta Lake at 50-percent 12 capacity has a refill potential of approximately 36 13 percent. Okay. While Trinity at 50-percent capacity has a 14 refill potential of only 15 percent, this has to do with 15 the size of the Trinity reservoir being a very large 16 reservoir with a very minimal inflow compared to the size 17 of the reservoir. 18 Therefore, based on the biological opinion for the 19 winter-run, there is a high likelihood of Trinity Lake 20 being drained to protect the winter-run temperature 21 requirements to the detriment of Trinity River basin plan 22 temperature objectives and fishery resources. 23 Establishment of a Trinity Lake minimum flow and 24 implementation of Trinity River temperature objectives are 25 necessary to ensure that no harm to the Tribal and Public CAPITOL REPORTERS (916) 923-5447 4627 1 Trust assets to the Trinity River occur and to meet our 2 water quality objectives. 3 Therefore, in consideration of all the testimony 4 we presented to you today, Trinity County asks that you do 5 six things. The first is that you reaffirm your commitment 6 to hold a separate Trinity River Bureau of Reclamation 7 Water Rights proceeding following the Interior Secretary's 8 Trinity River flow decision. 9 Second, we ask that you amend the minimum 10 in-stream fishery flow in the Bureau of Reclamation's 11 Trinity River water permits from the current minimum flow 12 of 120,500 acre-feet to 340,000 acre-feet per year to be 13 consistent with the Central Valley Project Improvement Act 14 Section 3406(b)(23). 15 Third, we ask that the Board add a condition to 16 require for the Bureau of Reclamation's Trinity Division 17 Operations for those seven permits for any project purpose 18 that the Bureau remain in compliance with the Trinity River 19 temperature objectives contained in the basin plan for the 20 north coast region. This should also include the submittal 21 of an annual operations plan similar to the -- what's 22 required in 90-05 for the Sacramento River. 23 Four, we ask the Board make a finding that the 24 delivery of CVP irrigation water to those CVP service areas 25 with soil selenium concentrations greater than .36 CAPITOL REPORTERS (916) 923-5447 4628 1 micrograms per gram is a wasteful and unreasonable use in 2 violation of Article 10, Section 2 of the State 3 Constitution and California Water Code Section 100. 4 Fifth, we ask that the Board remove from the CVP 5 service area all lands with soil selenium concentrations 6 greater than .36 micrograms per gram. And that the water 7 savings from the cessation of CVP delivers to those lands 8 be put into a minimum pool, a minimum carryover storage 9 requirement for Trinity Lake on September 30th of each year 10 that it be 1,239,500 acre-feet of water, water elevation 11 2,285 feet in order to ensure that, (A), Trinity River 12 temperature objectives can be met. And, (B), to ensure an 13 adequate supply of water in Trinity Lake to implement the 14 Interior Secretary's upcoming Trinity River flow decision. 15 Thank you for your thoughtful consideration of our 16 testimony and requests. 17 C.O. STUBCHAER: Thank you, Mr. Stokely. 18 MR. JACKSON: One more question. Mr. Stokely, is 19 Trinco -- Trinity County Exhibit 14 -- or 15 -- 20 MR. STOKELY: 13. 21 MR. JACKSON: 13 an accurate reflection of your 22 qualifications? 23 MR. STOKELY: Yes, somewhat abbreviated, but it is. 24 C.O. STUBCHAER: Thank you. Mr. Jackson, is your 25 panel ready for cross-examination? CAPITOL REPORTERS (916) 923-5447 4629 1 MR. JACKSON: They're available for 2 cross-examination. 3 C.O. STUBCHAER: You want to go first, 4 Mr. Birmingham? 5 MR. BIRMINGHAM: Actually, I prefer to go last. 6 C.O. STUBCHAER: All right. Let's have a show of 7 hands of everyone who wishes to cross-examine. Please, all 8 put your hands up now, and as I call your name take it 9 down. Mr. Porgans -- John, you want to call some names. 10 All right, just put down Dante. 11 C.O. CAFFREY: Mr. Brandt, Mr. Birmingham, 12 Mr. Sexton, Mr. Minasian. And when we get everybody, 13 Mr. Stubchaer will read the names. 14 C.O. STUBCHAER: The names I have, not necessarily in 15 this order, but: Porgans, Herrick, Nomellini, Brandt, 16 Birmingham, Sexton, Minasian. Anyone else? 17 MR. JACKSON: Mr. Stubchaer, before you begin with 18 cross-examination, I forgot to offer the qualifications in 19 Trinity County's 14 as well. 20 C.O. STUBCHAER: All right. Thank you. 21 MR. JACKSON: All right. 22 C.O. STUBCHAER: We'll rule, as you know, after the 23 case in chief. 24 MR. JACKSON: Yes. 25 C.O. STUBCHAER: All right the order will be: CAPITOL REPORTERS (916) 923-5447 4630 1 Mr. Nomellini, Mr. Porgans, Mr. Sexton, Mr. Brandt, 2 Mr. Herrick, Mr. Birmingham and Mr. Minasian. 3 Mr. Nomellini. 4 ---oOo--- 5 CROSS-EXAMINATION OF TRINITY COUNTY 6 BY CENTRAL DELTA PARTIES 7 BY DANTE JOHN NOMELLINI 8 MR. NOMELLINI: Mr. Chairman, Members of the Board, 9 Dante John Nomellini for the Central Delta Parties. And I 10 didn't make the comment about your battery being dead. 11 C.O. CAFFREY: Thank you, Mr. Nomellini. 12 C.O. STUBCHAER: It came from his direction. 13 MR. NOMELLINI: I know who did though. 14 C.O. CAFFREY: Just because it came from your side of 15 the room doesn't mean it was you. 16 MR. NOMELLINI: I'd like to go to exhibit -- Trinco 17 Exhibit 18. Do you have an overhead on that? 18 MR. STOKELY: Sure do. 19 MR. NOMELLINI: You know if you move that cart closer 20 to the screen -- 21 MR. JACKSON: I've been trying, but I don't think I 22 can get it through there. 23 MR. NOMELLINI: Thank you, Mr. Jackson, I owe you 24 one. 25 MR. JACKSON: Yes, sir, you do. CAPITOL REPORTERS (916) 923-5447 4631 1 MR. NOMELLINI: All right. With regard to Trinco 2 Exhibit 18, I guess it's Mr. Whitridge, except for the -- 3 I'm going to call it a greenish blue, I don't know what 4 color that is. Except for that greenish-blue area on 18, 5 this exhibit shows the same thing as your Exhibit 17, which 6 is the selenium concentration in the soils along the west 7 side of the San Joaquin Valley, does it not? 8 MR. STOKELY: Yes -- 9 MR. BIRMINGHAM: I'm going to object to the question 10 on the grounds that it lacks foundation and goes beyond the 11 scope of direct examination. Mr. Nomellini, certainly, can 12 inquire into things beyond the scope of direct examination 13 that are within the personal knowledge of the witness. 14 Without laying a foundation that this witness knows what 15 the soil classifications are in these lands, the question 16 lacks foundation. 17 C.O. STUBCHAER: The exhibit was part of the direct 18 testimony. You could lay -- 19 MR. BIRMINGHAM: This exhibit was not part of the 20 direct testimony. 21 C.O. STUBCHAER: I'm sorry. Time-out. 22 (Off the record from 11:18 a.m. to 11:19 a.m.) 23 C.O. STUBCHAER: All right. I stand corrected. It 24 is not part of the exhibits that were submitted as direct 25 testimony. CAPITOL REPORTERS (916) 923-5447 4632 1 Mr. Nomellini, you could, I suppose, offer it as 2 one of your exhibits for purpose of cross-examination if 3 you wish. 4 MR. BIRMINGHAM: Provided an appropriate foundation 5 is laid, Mr. Stubchaer. 6 MR. NOMELLINI: Well, I asked whether or not the 7 information on it was the same as Exhibit 17 with regard to 8 the selenium concentrations in the soil. And the answer 9 was "yes.". 10 C.O. STUBCHAER: But it's not an exhibit in evidence. 11 MR. NOMELLINI: Exhibit 17 is an exhibit they 12 referred to. And in cross I want to tie these two 13 together. And there was testimony about outside the place 14 of use. And I wanted to pursue that on cross-examination, 15 if I could. Whether or not I introduce the exhibit is 16 something else at a later time I may consider. 17 MR. BIRMINGHAM: Maybe Mr. Nomellini could lay the 18 appropriate foundation, Mr. Stubchaer, by asking this 19 witness if he knows how this exhibit was prepared and ask 20 him to describe the manner in which it was prepared. If he 21 does that, then, I think my objection would be satisfied. 22 C.O. STUBCHAER: All right. Mr. Nomellini, would you 23 do that, please? 24 MR. NOMELLINI: Although, I don't agree with the 25 objection, I'm going to ask the question: CAPITOL REPORTERS (916) 923-5447 4633 1 Do any of the panel members know how Exhibit 18 2 was prepared? 3 MR. STOKELY: Yes, I do, Mr. Nomellini. What we did 4 is we took the information from the State Board's Draft EIR 5 on the, I believe, its expansion consolidation of the 6 Central Valley Project permitted places of use. 7 And there were a series of maps in the Draft EIR 8 that showed the areas that were currently being served 9 Central Valley Project water without being within the 10 existing permitted CVP service area. So those areas are, 11 in fact, the gray area up there, which is within the San 12 Luis Water District. And this area here, which is within 13 the Westlands Water District. 14 What we did is we overlaid that information onto 15 the map showing the soil concentrations of selenium which, 16 actually, are -- original information for that was the 17 report by Mr. Tidball, I believe was the name. And that is 18 Exhibit Number 19. 19 And I might add, also, that that same information 20 is also contained in Staff Exhibit Number 147 on page 28, 21 Figure 5, that's the Rainbow report. That shows soil 22 concentrations in soils, total selenium in the top 12 23 inches of soil. And it says at the bottom of that 24 particular document, "Adapted from Tidball, et al., '96," 25 which is one of our exhibits. CAPITOL REPORTERS (916) 923-5447 4634 1 MR. NOMELLINI: So is it your testimony that not only 2 are some of the areas served with Trinity water areas that 3 are very high in selenium, but they're also outside the 4 permitted place of use of the permits of the Federal 5 government? 6 MR. STOKELY: That is correct. Water has been 7 delivered -- Central Valley Project has been delivered to 8 these areas not in conformance with the permits issued by 9 the State Board to the Bureau of Reclamation. 10 MR. NOMELLINI: And is it true that you contend that 11 water is needed in the Trinity for beneficial uses that is 12 otherwise being exported to these areas that are not only 13 high in selenium, but also outside the permitted place of 14 use and that is the basis that you contend constitutes a 15 violation of Article 10, Section 2 of the Constitution? 16 MR. BIRMINGHAM: Objection. Relevance. 17 MR. JACKSON: Mr. Stubchaer? 18 C.O. STUBCHAER: Mr. Jackson. 19 MR. JACKSON: The notice in this regard for this 20 hearing indicates that there may be an attempt to alter the 21 existing priority of water rights based upon unreasonable 22 use of water. The government, the Bureau itself began that 23 case all of a sudden one day in alternative four when they 24 began to talk about Yuba County's uses of water, East Bay 25 MUD's use of water. This is the place and time in these CAPITOL REPORTERS (916) 923-5447 4635 1 phased hearings in which unreasonable use will be 2 investigated according to the notice. 3 C.O. STUBCHAER: Mr. Birmingham? 4 MR. BIRMINGHAM: May I have just a moment, 5 Mr. Stubchaer? 6 C.O. STUBCHAER: Yes. 7 MR. NOMELLINI: It's my question. 8 C.O. STUBCHAER: Off the record. 9 (Off the record from 11:23 a.m. to 11:27 a.m.) 10 C.O. STUBCHAER: Back on the record. 11 MR. BIRMINGHAM: As I understand the notice of this 12 hearing there were a list of permits that were going to be 13 the subject of this hearing concerning the requirement that 14 they contribute towards implementing the 1995 Water Quality 15 Control Plan. 16 If the Board refers to the list of permits that 17 are contained on list 2-A to the notice, I believe that the 18 Board will discover that nowhere on the list are permits 19 held by the Bureau of Reclamation for operation of the 20 Trinity River Division. And, therefore, any questions 21 concerning the permits held by the Bureau for the Trinity 22 River Division are beyond the scope of the hearing. 23 And the requirements of flows in the Trinity River 24 are irrelevant to questions that are described in the 25 notice. Ms. Leidigh, is about to tell me that I'm CAPITOL REPORTERS (916) 923-5447 4636 1 mistaken. 2 MS. LEIDIGH: Page -- 3 MR. NOMELLINI: Well, I'll tell you that. 4 MR. JACKSON: We'll all tell you that. 5 C.O. STUBCHAER: All right. Mr. Nomellini, did you 6 wish to respond? 7 MR. NOMELLINI: Yes. I am conducting 8 cross-examination. I'd like to better understand the 9 testimony of these witnesses as to the case they put 10 forward. I'm entitled to broad latitude in that regard. 11 Further, I didn't ask about the technical permits 12 on the Trinity River. I asked whether or not it was their 13 contention that the water was needed for beneficial uses, 14 which I find to be very relevant to the question of 15 reasonable use of water in the San Joaquin Valley. And I 16 was not attempting to go there. Although, I perhaps could 17 go there under cross-examination. 18 MR. JACKSON: For the record, Ms. Leidigh, there 19 are -- you have some information about where the permits 20 are? 21 C.O. STUBCHAER: I'm going to call on Ms. Leidigh 22 after. 23 MR. JACKSON: Well, I would get the number wrong, but 24 I'm -- 25 C.O. STUBCHAER: All right. Ms. Leidigh. CAPITOL REPORTERS (916) 923-5447 4637 1 MS. LEIDIGH: I was just pointing out that on Page 11 2 in Enclosure 2-A of the notice that was sent out in May, 3 the revised notice of public hearing, there's a list of 4 U.S. Bureau of Reclamation permits and in some cases 5 licenses. And in parentheses on the right-hand side is the 6 name of the permittee, which is U.S. Bureau of Reclamation, 7 there is, in parentheses, an explanation of which project 8 these various permits are related to. And there's a number 9 of them in here that are related to the Trinity Project. 10 MR. BIRMINGHAM: I based my objection, Mr. Stubchaer, 11 on the list that was contained, or attached to the original 12 notice. Ms. Whitney has indicated to me that the permits 13 were contained in the revised list and so I will withdraw 14 my objection. 15 C.O. STUBCHAER: All right. Proceed, Mr. Nomellini. 16 MR. NOMELLINI: I have one more question. A simple 17 one, I hope. Could any of the panel members tell us what 18 the status is of the Environmental Impact Statement 19 preparation for the CVPIA mandate on the Trinity River? 20 MR. STOKELY: Yes. I can update you. I'm a member 21 of the EIS/EIR project team. Trinity County is the co-lead 22 agency under the California -- actually, we're the lead 23 agency under the California Environmental Quality Act, 24 because Trinity County has a discretionary permit to issue 25 to the Interior Department as part of the proposed action. CAPITOL REPORTERS (916) 923-5447 4638 1 And at this point in time, the official schedule 2 is that a public Draft EIS/EIR will be out in February with 3 a record of decision -- this is 1999, with a record of 4 decision by August of '99. But I have to tell you I've 5 been sworn to tell the truth here, and I don't believe that 6 schedule will be met at this point in time. 7 MR. NOMELLINI: All right. One follow-up, 8 Mr. Chairman. If I heard correctly, your position is that 9 the Board should not make any determination that would 10 commit water from the Trinity to salinity control, or 11 dilution of salts in the Delta until that decision on the 12 Trinity is made, which is dependent on this EIS? 13 MR. STOKELY: Maybe to clarify, our written testimony 14 says that we believe the State Board cannot make a final 15 determination as to how to meet flow-dependent Delta water 16 quality objectives until the Trinity River issues have been 17 resolved. And we have suggested an alternative means if 18 the Board were to desire to proceed prior to completion of 19 the Trinity EIR/EIS and the record of decision by the 20 Interior Secretary. 21 And that would be to establish a minimum carryover 22 storage in Trinity Lake that I cited in my oral testimony. 23 And it is also referenced in there. So we are willing to 24 accept that as a measure that the Board is protecting 25 Trinity River, Public and Tribal Trust assets and the Board CAPITOL REPORTERS (916) 923-5447 4639 1 could proceed with that. 2 MR. NOMELLINI: Is that carryover storage 350,000? 3 MR. STOKELY: No. That carryover storage is -- and 4 the answer is, 1,239,500 acre-feet of water. That would be 5 water elevation 2,285 feet in Trinity Lake. That's just 6 slightly more than half of the capacity of Trinity Lake. 7 It's roughly 16-percent refill potential. 8 MR. NOMELLINI: All right. Thank you. 9 C.O. STUBCHAER: Thank you, Mr. Nomellini. 10 Mr. Porgans. 11 ---oOo--- 12 CROSS-EXAMINATION OF TRINITY COUNTY 13 BY PORGANS AND ASSOCIATES 14 BY PATRICK PORGANS 15 MR. PORGANS: Patrick Porgans with Porgans and 16 Associates. 17 C.O. STUBCHAER: Good morning. 18 MR. PORGANS: Good morning, Members of the Board. 19 I'm looking at this Exhibit 18. And could you -- could 20 you, for my sake, define what water districts are 21 encompassed in the problem areas? 22 MR. STOKELY: Certainly. The green line there is the 23 Westlands Water District boundary. And, actually, this 24 particular exhibit does -- let's see it shows -- it does 25 not show any other district boundaries. We do have an CAPITOL REPORTERS (916) 923-5447 4640 1 Exhibit 17, we show the Panoche Water District and the San 2 Luis Water District. Would you like to put that one up. 3 MR. PORGANS: Yes, could you put that exhibit up, 4 please? 5 MR. STOKELY: Okay. Okay. We have different colors 6 on this one. Westlands, again, is in black. Panoche is in 7 the grayish color there. And the San Luis District has 8 very interesting boundaries in, I guess that's -- I'm 9 probably colorblind. I can't really describe that color. 10 C.O. STUBCHAER: Greenish. 11 MR. STOKELY: Green? Okay, green. 12 MR. PORGANS: Okay. So for the sake of discussion 13 the two major problem areas look like, from this Exhibit 14 17, is Westlands and part of Panoche? 15 MR. STOKELY: If you took the .36 micrograms per gram 16 that would include all of these darker colors, all of these 17 colors and these colors. So it would, actually, encompass 18 all of these sort of Neon colors. So it would be, 19 actually, about half of the Westlands Water District, the 20 entire Panoche Water District and a good chunk of the 21 southern half of the San Luis Water District. 22 MR. PORGANS: Thank you. Question I have here is -- 23 and I'm trying to get a clarification. Your testimony, the 24 testimony that was presented here said that prior to the 25 time that the Trinity Project came on-line a good portion CAPITOL REPORTERS (916) 923-5447 4641 1 of the area in question wasn't irrigated, it was in the 2 Westlands? 3 MR. STOKELY: It was not allowed to be irrigated with 4 Central Valley Project water. I do not have specific 5 knowledge about the irrigation practices in that area prior 6 to the Trinity River Division. 7 I do know that the Westlands came up to Trinity 8 County in the Redding area when hearings were held on the 9 Trinity River Division Act. And there was extensive 10 discussion and explanation by Westlands that the water was 11 needed in the western part of the San Joaquin Valley, 12 because of severe groundwater overdraft problems. And that 13 farms would soon be going out of business if this 14 additional supply of water were not made available to that 15 area. 16 MR. PORGANS: So, in essence, the Trinity River water 17 helped to sustain the agriculture viability of the 18 Westlands Water District? 19 MR. STOKELY: That is correct. The congressional 20 reports, which we referenced, which are Exhibits 3 and 4 21 the Senate and House reports, both have within them a 22 letter from -- I don't recall from who, but someone within 23 the Interior Department saying that there's an immediate 24 need for water and that if this water is not supplied there 25 will be dire consequences to agricultural in that area. CAPITOL REPORTERS (916) 923-5447 4642 1 MR. PORGANS: Do you have any idea -- or do you know 2 how much acreage was in production prior to the 3 supplemental water from the Trinity Project within the 4 Westlands Water District? 5 MR. STOKELY: I do not. 6 MR. PORGANS: Getting to this issue of -- excuse me. 7 You're somewhat familiar with the Kesterson issue, are you 8 not. 9 MR. STOKELY: Yes. 10 MR. PORGANS: Because you make reference to 85-1. 11 MR. STOKELY: Yes. 12 MR. PORGANS: The Board Order for Kesterson. 13 Relative to this issue of unreasonable use, it's your 14 position, if I understood you correctly, that your concern 15 with taking water from an area of origin and we're moving 16 the water out of that area to the demise of other 17 beneficial uses and exporting it through the Delta into 18 another basin for the purposes of sustaining agricultural 19 production, which the byproduct of is agricultural drainage 20 runoff containing certain compounds, toxic compounds like 21 selenium; and then that water is then being discharged into 22 other surface waters of the State and compounding and 23 exacerbating the surface waters of the State? 24 MR. STOKELY: Correct -- 25 MR. BIRMINGHAM: Objection. Assumes facts not in CAPITOL REPORTERS (916) 923-5447 4643 1 evidence. There is no evidence that any water is being 2 discharged from the areas that have been referred to as the 3 "problem areas" depicted on Exhibit 18 into the surface 4 waters of the state. In fact, to the contrary. I think 5 that the evidence is that there is no discharge of waters 6 from these "problem areas: Into the surface waters of the 7 State. 8 MR. PORGANS: Mr. Chairman -- 9 C.O. STUBCHAER: Excuse me, just a moment, 10 Mr. Porgans. 11 Mr. Jackson? 12 MR. JACKSON: Yes. I'd just like to point out that 13 I've been here through all of the hearing. I think there's 14 ample evidence in the record that there are water pollution 15 problems, both salt and selenium entering the San Joaquin 16 River. It was only yesterday in the course of the 17 testimony of the hydrologist from Stockton that he used the 18 term, "The San Joaquin River is being used as the San Luis 19 drain." I mean clearly there's evidence in the record to 20 support that. 21 C.O. STUBCHAER: Mr. Porgans, I understand -- I think 22 one basis for the objection is that not all of the, quote, 23 "problem areas" drain through the San Joaquin River. 24 MR. PORGANS: Yes, and I'll clarify that. Thank you, 25 Mr. Chairperson. CAPITOL REPORTERS (916) 923-5447 4644 1 C.O. STUBCHAER: All right. 2 MR. PORGANS: I'm not in agreement with 3 Mr. So-and-so. 4 C.O. STUBCHAER: His name is Birmingham. 5 MR. JACKSON: Birmingham, please. 6 MR. PORGANS: Thank you very much, Mr. Birmingham, 7 There was a song about Birmingham. 8 At any rate, my point is that getting back to this 9 issue here, there is a no-waste discharge policy in effect 10 for the Westlands Water District which has been in effect 11 since 19 -- 12 C.O. STUBCHAER: Mr. Porgans, as you know you're 13 suppose to ask questions of the panel. 14 MR. PORGANS: Excuse me. Getting back to the issue 15 relevant to the amount of materials that may be degradating 16 the waters of the State, recognizing that all of these 17 areas are not making that contribution at this point, it's 18 your concern that those areas that are contributing to the 19 degradation of the waters or public trust resources is of 20 concern to you? 21 MR. STOKELY: Yes. We are concerned about it. We 22 did not, to the best of my knowledge, submit any direct 23 evidence that shows that these problem areas discharge into 24 the San Joaquin River. Quite, frankly, we are relying on 25 other evidence submitted through this testimony -- through CAPITOL REPORTERS (916) 923-5447 4645 1 these proceedings that there are discharges. 2 It is our claim that if you apply water to soils 3 high in salt and selenium that has a clay barrier 4 underneath, that the general concept is that the water 5 leaches out the salt, the selenium, the other trace 6 elements and that contaminated water moves downhill. I 7 believe water runs downhill. 8 And it either flows as surface runoff, or 9 agricultural drainage water, or it's extracted through 10 tidals, whatever. And it can, ultimately, end up in the 11 San Joaquin River. I might add that, actually, our exhibit 12 by Mr. Tidball does show various areas high in selenium 13 that are in the Tulare basin. So let me clarify that not 14 all those areas drain into the San Joaquin River. 15 MR. PORGANS: I appreciate that clarification. Are 16 you -- have you ever seen, or read information that the 17 Environmental Protection Agency puts out in reference to 18 the national watershed characterization of various basins 19 within the State of California? 20 MR. STOKELY: Yes, I am familiar with it. I 21 understand to a large degree that that characterization of 22 watershed conditions, while it's not exclusively based on 23 the 303 list of impaired water bodies, it has quite a bit 24 to do with the impaired water bodies list. 25 MR. PORGANS: Thank you. CAPITOL REPORTERS (916) 923-5447 4646 1 MR. STOKELY: Which includes, I might add, several 2 watersheds within our county as well. 3 MR. PORGANS: Are you aware of the fact that the EPA 4 lists this particular area as one of the more serious water 5 quality problem areas in the United States? 6 MR. STOKELY: Yes, I've seen the map. I, actually, 7 have those in my office. And, again, I believe it gets 8 back to the 303(d) impaired water bodies list that I 9 referenced in my oral testimony. And it's also in the 10 written testimony. 11 MR. PORGANS: And you are aware of the fact -- are 12 you aware of the fact that Westlands does have a 13 no-discharge policy in effect since 1986? 14 C.O. STUBCHAER: Mr. Porgans, could you move the mic 15 over to the other side, your voice is trailing off a little 16 bit. 17 MR. PORGANS: My wife keeps tell me that, she says 18 I'm a trailer. 19 MR. STOKELY: Yes. It's my understanding that 20 Westlands is under a no-discharge order. 21 MR. PORGANS: Okay. Are you aware of the fact that 22 there's was about 17,400 pounds of selenium that contribute 23 to -- between the point of let's see, 19 -- I have to 24 rephrase the question. I don't want to get it compound. 25 While the San Joaquin drain was in use by the CAPITOL REPORTERS (916) 923-5447 4647 1 Westlands Water District, were you aware of the fact that 2 17,400 pounds of selenium was dumped into the Kesterson 3 Reservoir? 4 MR. STOKELY: I was unaware of the specific amount. 5 I was aware that there was selenium that went into 6 Kesterson. 7 MR. PORGANS: Are you aware of the fact that 8 between -- I have to get my years correct here, between 9 1986 and 1994 that approximately 70,000 pounds of selenium 10 have been discharged into the San Joaquin River from the 11 west side of the valley? 12 MR. STOKELY: Yes. I have seen a graph of the 13 details of the selenium load in pounds per year from 1986 14 to 1994. 15 MR. PORGANS: Okay. Are you aware of the fact that 16 the five parts per billion selenium promulgated by the EPA 17 for the San Joaquin River have been violated 82 percent of 18 the time from 1988 through 1992? 19 MR. STOKELY: I'm aware that there are violations. 20 I'm not aware of the specific percentages. 21 MR. PORGANS: More recently, are you aware of the 22 fact that between 1993 and '94 the selenium standard was 23 violated 11 out of 12 months? 24 MR. STOKELY: I was not aware of that. 25 MR. PORGANS: Were you aware of the fact that 130 CAPITOL REPORTERS (916) 923-5447 4648 1 miles of the San Joaquin River has been classified as water 2 quality limited as sediment impaired? 3 MR. STOKELY: I'm aware of that. That is under the 4 303(d) list. 5 MR. PORGANS: Are you aware of the fact that in 6 excess of 100 million dollars has been spent on drainage 7 and related issues in the San Joaquin Valley since the 8 Kesterson episode? 9 MR. STOKELY: I'm not aware of the specific amounts, 10 but I am aware that substantial amounts of money have been 11 spent to deal with the drainage problems. 12 MR. PORGANS: Have you ever had an opportunity to 13 review the order of the general reports relevant to the 14 expenditures for purposes of drainage and drainage related 15 studies? 16 MR. STOKELY: No, I have not. 17 MR. PORGANS: Do you know that we're paying -- the 18 taxpayers are paying seven million dollars a year on that 19 expenditure, the 100-plus million dollars of expenditures 20 for that drainage and drainage related problem? 21 MR. STOKELY: I am not aware of that. I am aware 22 that the Central Valley Project has project power, which is 23 used to pump out of the Delta. And we in Trinity County 24 have a first preference power right to the Trinity Division 25 water. We have a right to purchase 25 percent of it. CAPITOL REPORTERS (916) 923-5447 4649 1 And it's my understanding that the project power 2 that's used to run the Delta pumps is billed out at about 3 eight-tenths of a cent per kilowatt hour. And, yet, we in 4 Trinity County pay about 2.1 cents per kilowatt hour. So 5 in a sense those of us in Trinity County are paying to pump 6 this water out of the Delta to then irrigate the soils. 7 MR. BIRMINGHAM: Objection. Move to strike. 8 Nonresponsive. The question was: How much is the Federal 9 government is spending on drainage studies? 10 C.O. STUBCHAER: Right. 11 MR. BIRMINGHAM: And the answer relates to how much 12 Trinity County is paying for preferenced power. The answer 13 and the question are unrelated. It's unresponsive. 14 MR. PORGANS: That's a good point. 15 C.O. STUBCHAER: I'll grant the motion. 16 MR. PORGANS: Good. Excuse me, how much money do you 17 pay, Trinity County pay for electrical energy that's 18 consumed locally as opposed to the amount that the 19 contractors paid for pumping out? 20 MR. STOKELY: It's my understanding that we pay about 21 2.1 cents per kilowatt hour. The project power is billed 22 at approximately eight-tenths of a cent. So we're, 23 essentially, those of us in Trinity County are paying to 24 pump the water out of the Delta to irrigate some of these 25 soils. CAPITOL REPORTERS (916) 923-5447 4650 1 MR. PORGANS: Thank you. Are you aware of the fact 2 that the initial Central Valley Project was supposed to 3 cost about 170 million dollars and now the bill is 4 somewhere in excess of one-point some-odd billion dollars? 5 MR. STOKELY: I'm not aware of the specific sums for 6 the entire Central Valley Project. I am aware it's 7 substantial. I am familiar with the cost of the Trinity 8 River Division. 9 MR. PORGANS: Are you aware of the fact that only 10 about 10 percent of that money has been paid back? 11 MR. STOKELY: I am aware that a substantial portion 12 of the CVP has not been paid back. And that, again, the 13 power customers have paid their fair share. And that the 14 agricultural customers have not. 15 MR. PORGANS: You raise the issue about the concern 16 over the use of water, you know, within the confines of the 17 area designated on the map for wetland channeled water 18 there for U.S. Fish and Wildlife Service and the Department 19 of Fish and Game uses for Westlands. Is that a concern of 20 yours? 21 MR. BIRMINGHAM: Objection. Ambiguous. 22 C.O. STUBCHAER: Could you clarify the question, 23 please? 24 MR. PORGANS: Thank you. Do you have a concern about 25 the fact that U.S. Fish and Wildlife Service and the CAPITOL REPORTERS (916) 923-5447 4651 1 Department of Fish and Game, on occasions, were not able to 2 use water from the wetland channels in this particular 3 area? 4 MR. BIRMINGHAM: Objection. Ambiguous. I don't 5 know -- 6 C.O. STUBCHAER: Which area, Mr. Porgans? 7 MR. PORGANS: Excuse me. The area anywhere 8 delineated on that map, that could be either in the 9 Panoche, it could be part of the Mud Slough, Salt Slough, 10 it could be any part of that particular area. 11 MR. JACKSON: That would be Trinity County Number 17? 12 MR. PORGANS: Uh-huh. 13 MR. JACKSON: Is that the map you're referring to? 14 MR. PORGANS: Yes. 15 C.O. STUBCHAER: Do you know the answer? Anyone on 16 the panel? It doesn't have to be just Mr. Stokely, it can 17 be anyone on the panel 18 MR. STOKELY: Sure. I mentioned it as one of the 19 reasons why Trinity County believes there's a wasteful and 20 unreasonable use of water in irrigating these areas. And I 21 reference back to our Exhibit 22, the San Joaquin law 22 review article by Felix Smith on Page 61. It's a paragraph 23 entitled, "Number 4." And it talks about how: 24 (Reading): 25 "This unusable drainage has prevented the United CAPITOL REPORTERS (916) 923-5447 4652 1 States Fish and Wildlife Service and the 2 California Department of Fish and Game from 3 exercising their existing water rights for fish 4 and wildlife management purposes since 1965 5 about 29,000 acre-feet in licenses, 10120 and 6 10741, U.S. Fish and Wildlife Service; and 7 012074 and 005016 California Department of Fish 8 and Game are involved." 9 That is the extent of my knowledge. Again, rather 10 than a concern it's an example of what we believe to be 11 wasteful and unreasonable use, which is harming other 12 beneficial uses of water, other permitted uses of water. 13 In this case, they're actually licenses. 14 MR. PORGANS: Have you had the opportunity to review 15 any of the reports, you know, relative to the agricultural 16 drainage problems published by the Central Valley Regional 17 Water Quality Control Board? 18 MR. STOKELY: Some. 19 MR. PORGANS: Are you aware that there's a program 20 underway called the "Grasslands Channel Bypass Project," 21 which has been instituted to try to bring down selenium 22 loads in the problem areas? 23 MR. STOKELY: Yes, I'm aware of that. I read 24 Mr. Geohagan's testimony, I can't recall his name exactly, 25 but he's the manager for the, I believe, the districts CAPITOL REPORTERS (916) 923-5447 4653 1 involved in the Grasslands Project. 2 MR. PORGANS: Mr. Joseph McGahan. 3 MR. STOKELY: McGahan. It's been a while since I 4 read that, but I did read that. 5 MR. PORGANS: Are you aware that they've implemented 6 management plans and other water conservation efforts and 7 instituted other measures to reduce the drainage -- the 8 drainage loads, in particular, selenium -- for selenium in 9 that area? 10 MR. STOKELY: It's my understanding they're 11 instituting measures. I'm not familiar with the particular 12 measures being instituted, but I understand there is a 13 program to meet whatever waste discharge prohibitions are 14 in effect by the Central Valley Regional Board. 15 MR. PORGANS: Are you aware of the fact that the 16 drainers that are involved in the Grasslands Channel Bypass 17 Project have not met the target loads for 1997 and may not 18 meet them for 1998, that is the selenium loads? 19 MR. STOKELY: Yes. I read that gentleman's exhibit. 20 And he had indicated in his testimony that the heavy winter 21 rains were responsible for not meeting the discharge 22 requirements, I believe it was this year, maybe it was '97. 23 I don't recall specifically but, essentially, he blamed it 24 on very wet weather conditions which exceeded the discharge 25 requirements. CAPITOL REPORTERS (916) 923-5447 4654 1 MR. PORGANS: Are you aware that his hypotheses are 2 currently being under discussion as to the relative cause 3 for the increase in loads? 4 MR. STOKELY: I'm not aware of it, but I would think 5 that somebody would be considering it. 6 MR. PORGANS: Thank you. Are you aware of the fact 7 that in the process of these drainers implementing measures 8 to reduce loading they have, actually, reduced the amount 9 of water that they could apply for the purpose of 10 irrigation? 11 MR. STOKELY: It is my understanding that the area 12 that's -- that the land, actually, in production in acreage 13 has increased between 1986 and 1994 from 65,200 acres to 14 79,700 acres. And the actual acre-feet of drainage, total 15 drainage as well as tidal drainage has been reduced, which 16 would indicate to me an increased deficiency in the 17 application of water. 18 MR. PORGANS: And are you also aware of the fact that 19 there was -- in the period of time, in the process of 20 implementing those measures that the selenium 21 concentrations increased significantly by the reduction of 22 water applied? 23 MR. SEXTON: Mr. Chairman? 24 C.O. STUBCHAER: Mr. Sexton. 25 MR. SEXTON: I'm going to object and raise what I CAPITOL REPORTERS (916) 923-5447 4655 1 believe is a point of order here. What Mr. Porgans is 2 doing by way of cross-examination is, obviously, quite 3 proper: "Are you aware," and "Do you know," and "Isn't it 4 true," type of questions are appropriate on 5 cross-examination. 6 However, this witness is not a witness that has 7 been brought forward to testify about the Grasslands Bypass 8 Project. You do have a witness that's going to follow this 9 witness, relatively shortly. And it seems more appropriate 10 that Mr. Porgans' cross-examination of this particular area 11 be directed toward the witness that's going to deliver 12 testimony on that rather than the witness from Trinity 13 County. 14 C.O. STUBCHAER: You're objection is noted. I've 15 been listening to your questions, Mr. Porgans, and they're 16 well stated. But as far as the knowledge of the witness to 17 respond to them, it appears to me that everything you're 18 saying is not from personal knowledge, it's from this that 19 you've read, or that that you've read. And I wonder if the 20 question might be directed to more personal knowledge. 21 MR. PORGANS: Okay. The question I have now -- I was 22 trying to help the drainers out. The next question I have 23 is: 24 It's my understanding that you're coming and 25 you're making -- you're taking the position that you would CAPITOL REPORTERS (916) 923-5447 4656 1 like this Board to exercise its authority to take an action 2 on the unreasonable use of water in this area where the 3 water is being applied. Is that -- is that correct? 4 MR. STOKELY: Correct. 5 MR. PORGANS: Hearing no objection, I'll go to the 6 next question. Are you aware of the fact that there's been 7 several petitions that have come before this Board raising 8 the very issue that you're raising now on the unreasonable 9 use of water throughout the entire San Joaquin Valley and 10 that on every occasion the Board has opted not to deal with 11 that issue, with all due respect? 12 MR. STOKELY: Yes. 13 MR. PORGANS: Okay. And you have reason to believe, 14 or you have good faith, I guess -- excuse me. Do you have 15 reason to believe that the Board is going to go ahead and 16 do something about the unreasonable use of water? 17 MR. JACKSON: I object, because it calls for this 18 witness to speculate as to the Board's duty, authority, 19 maybe even character and I don't think that it's 20 appropriate at this point. 21 C.O. STUBCHAER: Mr. Porgans? 22 MR. PORGANS: I'll go along with that, Mr. Chairman. 23 C.O. STUBCHAER: All right. 24 MR. PORGANS: At any rate, I think that concludes my 25 cross-examination. And I will take Mr. Saxton up on that CAPITOL REPORTERS (916) 923-5447 4657 1 suggestion, you know, to cross-examine the next witness. 2 C.O. STUBCHAER: Okay. Thank you very much. 3 MR. SEXTON: That's "Sexton." I don't play the 4 saxophone. 5 MR. PORGANS: Sexton, Sexton, thank you for the 6 clarification. 7 C.O. STUBCHAER: What we're going to do now, 8 Mr. Sexton, is we're going to take a lunch break. It's 4 9 minutes of 12:00, we'll reconvene at 1 p.m. 10 (Luncheon recess.) 11 ---oOo--- 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 4658 1 WEDNESDAY, OCTOBER 14, 1998, 1:03 P.M. 2 SACRAMENTO, CALIFORNIA 3 ---oOo--- 4 C.O. STUBCHAER: We'll come back to order. Let's 5 see, I don't see the next cross-examiner in the room. Is 6 Mr. Sexton here? If he's not here, we'll go on to somebody 7 else. 8 C.O. CAFFREY: There he comes. 9 C.O. STUBCHAER: Mr. Sexton, before you sit down, 10 you're up. Are you ready for your cross-examination? 11 MR. SEXTON: Yes, Mr. Chairman. At least as ready as 12 I'll ever be. 13 ---oOo--- 14 CROSS-EXAMINATION OF TRINITY COUNTY 15 BY SAN LUIS AND DELTA-MENDOTA WATER AUTHORITY 16 BY MICHAEL SEXTON 17 MR. SEXTON: Good afternoon, gentlemen. My name is 18 Michael Sexton. For purposes of Phase V, I'm appearing on 19 behalf of the San Luis and Delta-Mendota Water Authority. 20 Mr. Chairman, before I get started, I'm reminded 21 of something that I learned early on in my legal career and 22 that is when an attorney rises and makes an objection for 23 the record that the record doesn't give a damn. But in 24 this particular case, I'm also going to make an objection 25 for the record, because I think earlier on it's pretty CAPITOL REPORTERS (916) 923-5447 4659 1 evident the way that the Chair is going to rule on it. 2 But for purposes of the record I'm going to move 3 to strike on behalf of the San Luis and Delta-Mendota Water 4 Authority the testimony of the two witnesses for Trinity 5 County on two bases. 6 The first, that the testimony went way beyond the 7 testimony that was summarized in their written submittal. 8 And number two, any testimony that was delivered by these 9 witnesses that is not based on either their personal 10 knowledge, or matters which as expert witnesses, in the 11 event this Board chooses to accept them as experts, 12 evidence that they are permitted to summarize and review 13 and then testify on before an administrative and 14 adjudicatory body. 15 C.O. STUBCHAER: Mr. Sexton, how would you suggest 16 that we discriminate between the testimony that they have 17 personal knowledge of and the other testimony at this point 18 in time? 19 MR. SEXTON: The only way that I know of that the 20 Board could do so would be to have sustained the objection 21 made by Mr. Birmingham earlier and allowed an inquiry into 22 the qualifications of the witnesses who delivered the 23 testimony that was delivered to the Board. 24 Without doing that, we have no basis for making a 25 determination if these witnesses are or are not qualified. CAPITOL REPORTERS (916) 923-5447 4660 1 We, certainly, can't make that determination from the 2 resumes, the abbreviated resumes that were submitted. I 3 mean, I see that the two witnesses that testified seem to 4 have a long history as planners, senior planners for 5 Trinity County. I don't see anything there that would 6 qualify them to testify about the mobility of arsenic or 7 selenium and soil profiles in the San Joaquin Valley. 8 MR. BIRMINGHAM: Excuse me, Mr. Stubchaer, may I have 9 a moment to confer with Mr. Sexton? 10 C.O. STUBCHAER: Yes. And during the meantime, 11 should we hear from Mr. Nomellini, or do you want to hear 12 what he has to say? 13 MR. BIRMINGHAM: I would prefer to hear what he has 14 to say. 15 C.O. STUBCHAER: Okay. Time-out. 16 MR. BIRMINGHAM: Thank you, Mr. Stubchaer. 17 (Off the record from 1:06 p.m. to 1:07 p.m.) 18 C.O. STUBCHAER: All right. Back on the record. 19 MR. BIRMINGHAM: Thank you, Mr. Stubchaer. 20 C.O. STUBCHAER: Mr. Nomellini. 21 MR. NOMELLINI: Mr. Chairman, Members of the Board, I 22 rise to oppose the motion to strike. I think that to the 23 extent that Mr. Sexton desires to seek out the 24 qualifications of these people on any particular subject 25 that cross-examination is the appropriate avenue given the CAPITOL REPORTERS (916) 923-5447 4661 1 previous ruling of the Chair. 2 And, therefore, I disagree with the statement that 3 it's impossible for them to do that. And he can do it now. 4 And I would suggest the Board allow him to do it, to fair 5 it out in what area he has concern with regard to the 6 degree of expertise. And it would go to the weight of the 7 evidence, in my view. 8 C.O. STUBCHAER: Mr. Jackson. 9 MR. JACKSON: Yes. Certainly, I would oppose the 10 motion to strike. I believe the ruling by the Board was 11 correct. And I would point out that, again, we're 12 operating under an abbreviated phased schedule here. Much 13 of this evidence is not only useful in this particular 14 hearing -- phase of the hearing, but we're about to get to 15 the phase that deals with the place of use, unauthorized 16 use under the permits. 17 As Mr. Caffrey has ruled on a number of occasions 18 it is hard to tell exactly when, in which phase evidence 19 should come in; but clearly the evidence is within the full 20 scope of the hearing notice. And, therefore, I believe the 21 ruling is correct. 22 C.O. STUBCHAER: Off the record for a moment. 23 (Off the record from 1:09 p.m. to 1:10 p.m.) 24 C.O. STUBCHAER: Back on the record. Mr. Sexton, 25 your objection is noted and it is in the record regardless CAPITOL REPORTERS (916) 923-5447 4662 1 of what you said about the objections not being in the 2 record, all objections are in the record, but you have your 3 opportunity now to cross-examine the witnesses and 4 determine their qualifications and expertise and anything 5 else you wish to do. 6 MR. SEXTON: Thank you, Mr. Chairman. I wasn't 7 trying to suggest that my objection wasn't in the record. 8 I was, actually, trying to make a joke, which I don't do 9 very well on occasion, probably on most occasions. And the 10 reminder was that the record really doesn't care what an 11 attorney says, it's the parties, the judges, or the Board 12 Members that the attorneys are appearing before. 13 In any event, Mr. Whitridge, let's start with you, 14 sir. Could you give me a summary of your educational 15 background, please, starting with high school -- I guess I 16 should say after you left high school. 17 MR. WHITRIDGE: Two years attendance at Yale 18 University, New Haven, Connecticut. That's the only 19 vocational school I've been to. 20 MR. SEXTON: Did you receive an undergraduate degree 21 from Yale, sir? 22 MR. WHITRIDGE: No, sir. 23 MR. SEXTON: What kind of courses did you study while 24 you were at Yale outside of just general education type of 25 courses? CAPITOL REPORTERS (916) 923-5447 4663 1 MR. WHITRIDGE: Humanities. 2 MR. SEXTON: Did you study -- well, did you have any 3 course work in land-use planning, for example? 4 MR. WHITRIDGE: No. 5 MR. SEXTON: Did you study any course work in 6 biology? 7 MR. WHITRIDGE: I took lower-level courses. 8 MR. SEXTON: Did you study anything in hydrogeology, 9 or hydrodynamics of water flows, or anything along that 10 line? 11 MR. WHITRIDGE: No "ologies." 12 MR. SEXTON: After you left Yale, did you attend any 13 technical training courses in either -- well, let me just 14 leave it open? 15 MR. WHITRIDGE: I would have gotten all that stuff at 16 the vocational schools and I have not. 17 MR. SEXTON: Have you written any articles in 18 technical or scientific journals that have been published? 19 MR. WHITRIDGE: No. 20 MR. SEXTON: Could you summarize for me, sir, your 21 work experience starting with your first full-time position 22 after you left Yale? 23 MR. WHITRIDGE: For several years I worked in 24 agricultural jobs on farms. I moved to Trinity County in 25 approximately 1975. I became a self-employed sawmill CAPITOL REPORTERS (916) 923-5447 4664 1 operator. During part of time -- I still have a sawmill. 2 I'm still an operator although, in fact, it's rendered 3 intermittent. 4 For several years I was also owner of a natural 5 foods store. This was in the late '70s, early '80s in 6 Weaverville, California. Although I'm not sure if it's -- 7 to what extent it constitutes employment, I became a 8 Planning Commissioner in Trinity County in approximately 9 1985. That's a paid position. I became a Trinity County 10 supervisor in -- at the end of 1987, which was my main 11 occupation -- has been my main occupation since then. I 12 retired at the end of 1986 -- sorry, 1996. So it was a 13 total of nine years. 14 Some months after my retirement I took a job. My 15 present job is project specialist with the Natural Resource 16 Division of the Trinity County Planning Department. Well, 17 I should, at least, alert you as a Member of the Board of 18 Supervisors there's any number of positions, committees, 19 functions that every supervisor undertakes. I was not paid 20 separately for any of those, but I can run through them if 21 you wish. 22 MR. SEXTON: Any of the undertakings that you were 23 involved in as a supervisor, did they, in your view, 24 qualify you to render testimony on matters relating to 25 hydrology or biology in the testimony that was rendered CAPITOL REPORTERS (916) 923-5447 4665 1 today? 2 MR. WHITRIDGE: Yes, if -- 3 MR. SEXTON: Okay. If the answer is "yes," why don't 4 you go ahead and summarize those areas for me? 5 MR. WHITRIDGE: One of my larger interests and more 6 time-consuming function as a Member of the Board of 7 Supervisors was to work on the restoration of the Trinity 8 River with all its attendant issues. In that vein, I 9 became the Trinity County's representative on the Trinity 10 River Restoration Task Force. I believe it might have been 11 1992/'91, somewhere in there. 12 And when that happened I also became Trinity 13 County's representative on the Task Forces' Technical 14 Coordinating Committee and became the Chairman of that 15 committee. So, that committee meets -- has regular 16 meetings monthly, the Technical Coordinating Committee 17 does. The task force generates large amounts of paper. 18 And so I spent several years -- several years formally and, 19 actually, a couple years informally before I held the seat 20 of County Representative, attended meetings, reading the 21 documents and learning about the range of issues that 22 affect Trinity County -- the Trinity River Restoration 23 Program. 24 MR. SEXTON: Okay. Your last area that you were 25 summarizing for me was your participation as a Trinity CAPITOL REPORTERS (916) 923-5447 4666 1 County planning -- excuse me, employment by Trinity County 2 Planning Department. 3 MR. WHITRIDGE: Yes. 4 MR. SEXTON: And as I understood it that started in 5 approximately 1996 when you left as a supervisor? 6 MR. WHITRIDGE: Right. 7 MR. SEXTON: And has that continued up to the present 8 time? 9 MR. WHITRIDGE: Sorry. It would have been -- it was 10 the end of '96 I retired. Several months after that I 11 became an employee, so, yes. 12 MR. SEXTON: Okay. And you're currently employed by 13 the Planning Department? 14 MR. WHITRIDGE: Yes. 15 MR. SEXTON: As a Planning Department member, what is 16 your actual title, now, on the Planning Department? 17 MR. WHITRIDGE: Trinity River Flood Hazard Reduction 18 Program, Project Specialist II. 19 C.O. STUBCHAER: Roman numeral or Arabic? 20 MR. WHITRIDGE: I think it might be a Roman numeral. 21 MR. SEXTON: Could you summarize for me the required 22 duties in that capacity as a Flood Hazard Project 23 Specialist II? 24 MR. WHITRIDGE: The picture is emerging and becoming 25 apparent that restoration of the Trinity River requires CAPITOL REPORTERS (916) 923-5447 4667 1 higher intensity flows than have been permitted until now, 2 since the construction of the dam. That doesn't 3 necessarily speak to the volume, total volume of the flows 4 required, but the magnitude of the flows. 5 This 12-year flow study and numerous other studies 6 have generated information about the sediment transport 7 capabilities of different magnitudes of flow. And so the 8 draft, at least recommendations of the 12-year flow 9 study -- it's still called the 12-year flow study; 10 although, now, it's in its 15th year, I think, area to 11 release higher magnitude flows from the Lewiston Dam, which 12 is the lowest of our two dams in order to restore the 13 river, essentially, by mobilizing sediment most 14 efficiently. 15 If we are going to be able to do that, there are 16 certain improvements, human improvements -- specifically I 17 can say now four bridges, several houses, four or five six 18 houses, depending on the exact timing, some stretches of 19 the road which could be inundated by the dam releases of 20 the magnitudes which are under consideration. 21 My job is to try to identify what improvements 22 would be affected by various flow regimes and attempt to 23 figure out -- deal with the landowner and potential funders 24 and develop methods of removing those improvements from 25 flood jeopardy by whatever means we can, raise, purchase, CAPITOL REPORTERS (916) 923-5447 4668 1 build dikes around, engineer. 2 MR. SEXTON: So do I understand correctly the goal of 3 your position is to identify and, then, try to mitigate 4 dangers from flooding? 5 MR. WHITRIDGE: Yes. 6 MR. SEXTON: Within Trinity County? 7 MR. WHITRIDGE: Yes. 8 MR. SEXTON: You mentioned that after you left Yale 9 you had some agricultural jobs on farms. Where were they 10 located? 11 MR. WHITRIDGE: New England. 12 MR. SEXTON: What kind of farms were they? 13 MR. WHITRIDGE: Small family farms. In some cases 14 someone like you might consider them giant gardens, small 15 organic farms often -- always -- well, I'm not sure they 16 were all organic. They're all small. 17 MR. SEXTON: Do you recall, sir, if the water supply 18 delivered to those farms was strictly from precipitation 19 versus whether they required storage or delivery through 20 canal systems? 21 MR. WHITRIDGE: Well, in no case did it have 22 storage -- in no case was water delivered to these places 23 from off site. Some of them had wells and they 24 occasionally used them. I was amazed at the time on how 25 much they did depend on natural precipitation. So there CAPITOL REPORTERS (916) 923-5447 4669 1 was some irrigation from on-site wells. And no canals, no 2 California paraphernalia. 3 MR. SEXTON: Do you have a recollection as to what 4 type of crops were grown on the farms? 5 MR. WHITRIDGE: It was a range of garden crops, 6 various vegetables and fruits of various kinds. 7 MR. SEXTON: Was there an issue that you recall 8 relating to the growing of those crops that had to do with 9 salinity and agricultural discharges from the farm? 10 MR. WHITRIDGE: None that I heard of. No, none that 11 I was aware of. 12 MR. SEXTON: How about issues relating to selenium, 13 boron, arsenic, or other constituents from agricultural 14 drainage? 15 MR. WHITRIDGE: No issues like that in my experience 16 there. 17 MR. SEXTON: You indicated you were self-employed as 18 a sawmill operator. This was also in Trinity County? 19 MR. WHITRIDGE: Yes, sir. 20 MR. SEXTON: And one of the -- one of the issues 21 involved in your work now as the flood hazard project 22 specialist is performing a sediment transport study and 23 mobilizing sediment more efficiently? 24 MR. WHITRIDGE: No, sir. Essentially, my job is to 25 take the information generated by certifiable experts, if CAPITOL REPORTERS (916) 923-5447 4670 1 you will, and translate it into real life. So the sediment 2 transport comparisons, the 12-year flow study has been 3 conducted by the government, scientists and people 4 contracted by the Fish and Wildlife Service and some 5 persons in the employee of the Hoopa Valley Tribe. So I 6 take the information they generate. 7 And also I take maps generated by the Department 8 of Water Resources, which determine -- they model what 9 different elevations of floods will do at different 10 locations in the Trinity River corridor. So I take those 11 two pieces of information and determine where we're going 12 to have trouble if this flow is instituted, or this flow. 13 And, then, I talk with the landowners about are 14 they worried about that, what would they like to do if this 15 happens, or if this happens, or if this choice is selected. 16 And, then, I preliminarily survey the potential for funding 17 to see if we can get funding to help accomplish the 18 preferred alternative, if you will. 19 MR. SEXTON: And you still have a sawmill operation? 20 MR. WHITRIDGE: Yes, sir. 21 MR. SEXTON: Now, as a sawmill operator do you deal 22 with loggers, logging that goes on in Trinity County? 23 MR. WHITRIDGE: Yes, sir. Although, I should caution 24 you -- I don't want to fool you at all. You might need a 25 microscope to detect my activity at this point. I still CAPITOL REPORTERS (916) 923-5447 4671 1 own the sawmill. I still occasionally run it. It's by no 2 means a large part of my occupation or time. 3 MR. SEXTON: Well, let's go back to the time when you 4 were more actively involved in the sawmill operation. 5 MR. WHITRIDGE: Yes. I would have to obtain logs 6 either by buying them or on occasion going to get them 7 myself. So to buy logs I had to deal with loggers. 8 MR. SEXTON: Did you yourself get involved in logging 9 activities either directly or through subcontracting? 10 MR. WHITRIDGE: Yes. 11 MR. SEXTON: Was there an issue raised at the time in 12 Trinity County about the impact of logging activities on 13 sedimentation in the river? 14 MR. WHITRIDGE: At the time I was logging? 15 MR. SEXTON: Yes. 16 MR. WHITRIDGE: Yes. That's a continuous -- any -- 17 Trinity County is three quarters managed by the United 18 States Forest Service. And it's forestry -- forest 19 activities are large in Trinity County life. So everything 20 to do with forestry is a continuous matter of interest, 21 including sedimentation. 22 MR. SEXTON: So the sedimentation concerns that exist 23 now also relate to logging activities within the county; 24 isn't that right, sir? 25 MR. WHITRIDGE: Yes. CAPITOL REPORTERS (916) 923-5447 4672 1 MR. SEXTON: Have you -- have you visited the San 2 Joaquin Valley, the west side of the valley on any 3 occasion? 4 MR. WHITRIDGE: No -- sorry. I've driven by it, 5 driven through it. 6 MR. SEXTON: On I-5? 7 MR. WHITRIDGE: Yes. 8 MR. SEXTON: I take it you haven't stopped at any of 9 the farming operations within -- on the west side of the 10 San Joaquin Valley? 11 MR. WHITRIDGE: Correct. 12 MR. SEXTON: Are you familiar with the kind of crops 13 grown on the west side? 14 MR. WHITRIDGE: I heard cantaloupes yesterday. 15 MR. SEXTON: You're right. Cantaloupes are, 16 certainly, one of them. 17 MR. WHITRIDGE: My impression is cantaloupes and 18 cotton are two, but I have not made a study of what happens 19 there. 20 MR. SEXTON: Have you ever worked for a California 21 Water District type entity? In other words, a water 22 district, an irrigation district, or any kind of a public 23 agency that has as one of its purposes the delivery of 24 water for irrigation purposes? 25 MR. WHITRIDGE: In the course of my work as CAPITOL REPORTERS (916) 923-5447 4673 1 supervisor I needed to deal with, and in some cases for, 2 some cases against, districts within Trinity County who do 3 not, however, supply significant amounts of irrigation 4 water. 5 Some of their water goes to irrigation, but we 6 have very little irrigated agricultural. So I dealt with 7 the water districts in that capacity. I've never been 8 employed by one. And I have, certainly, gone to more 9 meetings than I can count with water districts where they 10 express their concern. And I have worked with them in that 11 sense. And those were districts from various places around 12 the State. 13 MR. SEXTON: Outside of Trinity County? 14 MR. WHITRIDGE: Yes, sir. 15 MR. SEXTON: Do you recall if any of those districts 16 were from the San Joaquin Valley area? 17 MR. WHITRIDGE: It would have been rare if it 18 occurred. Some of the types of meetings I would go to 19 would be Regional Council of Rural Counties meetings who 20 have -- Merced and Madera Counties, for instance, are 21 members of the Regional Council. 22 But I couldn't -- I couldn't -- I can't even -- I 23 can't remember whether, or if I -- if they've been present 24 at the meetings. I mean, a lot of them are large meetings 25 with 50 people introducing themselves and sometimes more CAPITOL REPORTERS (916) 923-5447 4674 1 people come in, but it could have happened. I can't tell 2 you more. 3 MR. SEXTON: Do you have any familiarity with the 4 current status of the law of California water rights, or 5 the law applicable to California water rights? 6 MR. WHITRIDGE: Some familiarity. 7 MR. SEXTON: Okay. And could you explain for me the 8 extent of that familiarity, if you will? 9 MR. WHITRIDGE: The central concepts that interest me 10 now and that I paid attention to are the prior right of 11 uses in a basin compared to out-of-basin uses. So my 12 impression from reading court cases and the summaries is 13 that, certainly, Trinity County, if not any in-basin use, 14 in Trinity County's case the right existed and exists to 15 maintain beneficial uses. 16 MR. SEXTON: Within the county? 17 MR. WHITRIDGE: Within the watershed. And that right 18 exists in our case by virtue of Area of Origin Statutes. 19 By virtue separately and independently -- or in addition by 20 virtue of the Public Trust Doctrine. And as it happens, by 21 virtue of the Federal Trust responsibilities to downstream 22 Indian tribes, which I wanted to discuss this morning. 23 And I think it, in effect, exists by virtue of 24 Fish and Game Code Section 5937, which to me seems 25 unambiguous in requiring the owner of any dam to release CAPITOL REPORTERS (916) 923-5447 4675 1 enough water to keep downstream fish in good condition. 2 MR. BIRMINGHAM: Excuse me, Mr. Caffrey? 3 C.O. CAFFREY: It's still Mr. Stubchaer. 4 MR. BIRMINGHAM: Excuse me. Mr. Stubchaer? 5 C.O. STUBCHAER: "The Board" now. 6 MR. BIRMINGHAM: I'm going to -- I objected to this 7 once before and was overruled as I recall when 8 Mr. Herrick whispered something to Mr. -- 9 MR. HILDEBRAND: Hildebrand. 10 MR. BIRMINGHAM: Hildebrand, thank you. And 11 Mr. Sexton right now is engaged in an examination to 12 determine if this person is qualified to express legal 13 opinions. It is entirely inappropriate for Mr. Jackson to 14 lean over and remind him that he wants to talk about 15 Section 5937 of the Fish and Game Code. 16 MR. JACKSON: Excuse, Counsel, what was that? 17 MR. WHITRIDGE: Actually, I didn't hear anything. 18 C.O. STUBCHAER: Mr. Jackson, you wish to respond? 19 MR. JACKSON: Excuse me. The man has just told a 20 falsehood. I did not whisper anything to any witness. 21 MR. BIRMINGHAM: If that's the case, I apologize to 22 Mr. Jackson and to the Board. I thought I observed 23 Mr. Jackson whispering something to the witness. If I 24 didn't observe it, I apologize. 25 C.O. STUBCHAER: Mr. Birmingham, I want to say I CAPITOL REPORTERS (916) 923-5447 4676 1 believe that I am aware of what is sometimes called 2 "witness tampering." I did not observe any in this case. 3 MR. BIRMINGHAM: Thank you. 4 MR. WHITRIDGE: Nor did I. 5 MR. JACKSON: Well, neither did I. 6 C.O. STUBCHAER: I didn't mean tampering, I meant 7 coaching, but I didn't observe that either. 8 C.O. CAFFREY: I'm going to add something here, I'm 9 going to take the prerogative of the Chair, even though I'm 10 not serving as Hearing Officer at this point. For purpose 11 of clarification, Mr. Stubchaer is going to complete this 12 particular case in chief as Hearing Officer, after which I 13 will, again, resume my role. 14 I'm doing that because I was late and missed some 15 key discussion at the very beginning. I do not have a 16 record to read. So I think it's appropriate for 17 Mr. Stubchaer to continue, at least, for this case in 18 chief. 19 Secondly, Mr. Stubchaer is a very polite 20 gentleman, so I'll say it: If you have something to say, 21 especially, in these somewhat heated and emotional moments, 22 you need to address the Hearing Officer and not each other. 23 Thank you. 24 C.O. STUBCHAER: Mr. Brown? 25 MEMBER BROWN: That covered it. CAPITOL REPORTERS (916) 923-5447 4677 1 C.O. STUBCHAER: All right. Please, continue. 2 MR. SEXTON: Thank you, Mr. Stubchaer. 3 Mr. Whitridge, I believe you were discussing your 4 familiarity with California water rights. And you had just 5 started discussing Fish and Game Code Section 5937. Would 6 you pick up where you left off on? 7 MR. WHITRIDGE: I simply noted that because 8 Section 5937 is relatively short, relatively clear and 9 unambiguous to me and it says, in so many words, that 10 owners of dams must release sufficient quantities of water 11 through or around the dam to maintain downstream fish 12 stocks in good condition. 13 That section also, in effect, serves as an 14 assurance of a prior right, acknowledgement of a prior 15 right, which as I understand it I believe from reading the 16 Audubon case, cannot be extinguished by subsequent permits 17 granted to other appropriators or other uses. 18 MR. SEXTON: Were you finished with discussing your 19 familiarity with California water rights? 20 MR. WHITRIDGE: Well, I have a general familiarity 21 that there are, in fact, appropriated rights and riparian 22 rights. 23 MR. SEXTON: Have you personally ever filed with the 24 State Water Board an application to appropriate water? 25 MR. WHITRIDGE: No. I do -- I do -- I believe I have CAPITOL REPORTERS (916) 923-5447 4678 1 an appropriated right. I have a ditch which had a right 2 that I do use. I inherited it, essentially. 3 MR. SEXTON: You may not want to say too much. If 4 it's not listed on Attachment 2-A you may just want to kind 5 of just pipe down. 6 MR. WHITRIDGE: Fortunately, it doesn't flow into 7 Trinity River above the dam. 8 MR. SEXTON: Okay. Why don't we go ahead and leave 9 this area. Presently other than your -- excuse me. Strike 10 that. 11 With your work as a -- on the Planning Department, 12 do you have any professional or technical affiliations, 13 engineering type of affiliations, other planning agencies, 14 or the like? 15 MR. WHITRIDGE: No. 16 MR. SEXTON: Mr. Whitridge -- excuse me, Mr. Stokely. 17 MR. STOKELY: Yes. 18 MR. SEXTON: Could you, sir, summarize your 19 educational experience beginning with when you left high 20 school? 21 MR. STOKELY: Certainly. I attended U.C. Santa Cruz 22 from 1973 through 1979, with a couple of breaks in between. 23 I majored in environmental studies and biology. I 24 graduated with honors in biology from U.C. Santa Cruz. I 25 do not have any graduate degree. I have taken courses on CAPITOL REPORTERS (916) 923-5447 4679 1 the Delta. That's where I met Mr. Nomellini about ten 2 years ago. I have taken courses on CEQA, probably taken 3 some other professional development courses, but I can't 4 remember them offhand. 5 MR. SEXTON: Was Mr. Nomellini in a boat on the Delta 6 when you met him? 7 MR. STOKELY: No. I don't think he remembers me, but 8 I remember him. I can't forget a name like that. 9 MR. NOMELLINI: And I'm not willing to testify. 10 MR. SEXTON: Okay. In your studies at U.C. Santa 11 Cruz in the subject of biology, when you say you graduated 12 with a degree in biology, as I understand it a degree in 13 biology can take different forms. 14 Can you kind of give me an idea of what kind of 15 studies that you undertook? And, then, we'll take off on 16 there on what kind of work you have done in those areas 17 since then. 18 MR. STOKELY: Sure. Actually, I primarily focused on 19 plants, biogeography type of issues. I had tried to get 20 into some oceanography type of classes, but I never seemed 21 to be able to get in there. So I did take some marine 22 biology courses, land use planning and geology. Generally, 23 that was a general biology focus rather than specific; 24 although, it was probably more slanted towards plant 25 biology. CAPITOL REPORTERS (916) 923-5447 4680 1 MR. SEXTON: At the time you were studying biology, 2 were there issues relating to selenium uptake, or anything 3 of that stuff in plants or in food chains? 4 MR. STOKELY: Actually, yes. I had a course called 5 field biogeography. And we took a field trip to the New 6 Idria Serpentine barrens. 7 MR. SEXTON: To where? 8 MR. STOKELY: To the New Idria Serpentine barrens, 9 just west of the Westlands Water District. And we did go 10 study the very unique plants that live in that area because 11 the soil is so poisonous. 12 MR. SEXTON: Poisonous in what context? 13 MR. STOKELY: Heavy metals, copper, probably 14 selenium, but I do not recall it from the time. But a 15 number of very unique plants that exist either only in that 16 area, or in very limited areas of serpentine soils that 17 have high amounts of heavy metals, trace elements, that 18 kind of thing. I thought it was a very interesting area. 19 MR. SEXTON: Have you written any articles for 20 technical or scientific journals since you graduated from 21 Santa Cruz? 22 MR. STOKELY: Yes. The only one that comes to mind 23 in recent memory is I co-authored an article with Mr. Greg 24 Kamman, who's a hydrologist, on the integration of 25 temperature modeling in the Trinity River and its CAPITOL REPORTERS (916) 923-5447 4681 1 application towards water planning for fish temperature 2 survival. 3 MR. SEXTON: Any other writings? 4 MR. STOKELY: Not that I recall. 5 MR. SEXTON: Any technical affiliations, or 6 professional affiliations since your graduation from Santa 7 Cruz? 8 MR. STOKELY: I'm a member of the American Fishery 9 Society. 10 MR. SEXTON: What are the goals of that society? 11 MR. STOKELY: Good question. I believe, although I'm 12 not totally sure, to promote the betterment of fish 13 population in fisheries through science. Quite frankly, 14 I'm not completely familiar with it. 15 MR. SEXTON: Mr. Stokely, could you summarize for me 16 your work experience? Let's go back to high school, 17 primarily, because you testified that you had some breaks 18 in your term at Santa Clara, so I want to pick up -- 19 MR. STOKELY: Santa Cruz. 20 MR. SEXTON: Excuse me, Santa Cruz. 21 MR. STOKELY: Sure. 22 MR. SEXTON: Any -- 23 MR. STOKELY: Well, between my sophomore and junior 24 year I took a year off and spent a winter in Colorado 25 skiing, washing dishes, being a poor young student type. CAPITOL REPORTERS (916) 923-5447 4682 1 MR. SEXTON: You probably wish you were back there. 2 MR. STOKELY: No, I'm having more fun here, actually. 3 MR. SEXTON: You have a sadistic mentality. Excuse 4 me, go ahead. 5 MR. STOKELY: So that was the major break that I 6 took. 7 MR. SEXTON: And so during the time that you took a 8 break then from Santa Cruz you weren't involved in any kind 9 of work involving biology, farming, anything of that type? 10 MR. STOKELY: Actually, I correct that. I also did 11 work in an apple orchard in Aptos in the Santa Cruz 12 mountains. I did a variety of manual labor related to a 13 young apple orchard. 14 MR. SEXTON: Could you summarize your work experience 15 since you graduated from Santa Cruz? 16 MR. STOKELY: Certainly. In 1979 I went to work for 17 the Yosemite Institute in the Yosemite National Park. For 18 about three months, I was an environmental education 19 instructor. At the time my wife, who was not my wife at 20 the time, was my boss, so I decided to change positions. 21 That wasn't such a good idea for the relationship. 22 And I took over as the maintenance supervisor for 23 the Yosemite Institute. And I worked there from the fall 24 of '79 until the spring of 1981. Then, in 1981 I moved to 25 Trinity County, spent about a year building a house. And CAPITOL REPORTERS (916) 923-5447 4683 1 then in the summer of 1982, I took a seasonal job with the 2 Bureau of Land Management as a cadastral survey technician. 3 I worked for five seasons approximately six months 4 a year working at the BLM doing cadastral survey, which is 5 property surveying, running instruments, taking notes doing 6 calculations, that kind of thing. In the winters I would 7 get laid off. And I think starting in about 1983 I also 8 took on a -- my own business doing fishery restoration 9 projects. I started building fish ladders on the Barker 10 Creek, the creek I live on. And did a few small contracts 11 sort of in my spare time for my other jobs. 12 Then in -- while I was a cadastral survey 13 technician, in 1985 I actually preceded Mr. Whitridge on 14 the Planning Commission. I served there from February of 15 '85 -- excuse me -- yeah, '85 until July of '96 -- '86 on 16 the Trinity County Planning Commission representing 17 District 3. Then, in July of '86 I resigned from the 18 Planning Commission and took a full-time job on the staff 19 of the Trinity County Planning Department. 20 I worked in, basically, land use planning, 21 transportation planning for a couple of years pretty much 22 full-time. And around 1989 I started to get involved in 23 Trinity River issues. Although, I had always had an 24 interest in water issues, I did work on a negative 25 declaration for Trinity County Waterworks District Number CAPITOL REPORTERS (916) 923-5447 4684 1 1, which is a county dependent water district in Hayfork 2 that serves municipal water to the citizens of Hayfork. 3 And I worked on an environmental negative 4 declaration force and water permits for the District that 5 also included some permits for the -- for the Sierra 6 Pacific Mill that used to be in Hayfork as well as the 7 Trinity County fairgrounds for an irrigation project for a 8 so-called golf course. There, I don't recall the exact 9 year that was maybe '88/'89 something like that. 10 Then, in 1989 as part of my duties working for the 11 Planning Department when supervisor Howard Myrick was our 12 representative on the Trinity River Task Force, he was 13 elected Chairman of the Technical Coordinating Committee of 14 the Trinity County Task Force, which is the group that 15 Mr. Whitridge served on. 16 And then the County obtained the chairmanship of 17 the TCC and I became the staff assistant to the Chairman of 18 the TCC. And that's a position that I've held 19 approximately since 1989. I take the minutes for the 20 approximate monthly meetings of the Technical Coordinating 21 Committee. In the TCC, as it's known, it has 19 members 22 now. 23 And the TCC makes recommendations to the Trinity 24 River Task Force, which is teh Federal advisory committee 25 which advises the Interior Secretary on Trinity River CAPITOL REPORTERS (916) 923-5447 4685 1 matters. When the task force has its once or twice a year 2 meetings I often prepare the staff reports and the 3 recommendations for the TCC. I prepare letters for the TCC 4 to send to the task force, or other members. I prepare 5 background papers, et cetera. So since approximately 1992 6 I've been pretty much working full-time on Trinity River 7 issues for Trinity County. 8 In addition to my duties as the TCC staff 9 assistant, I also administer the Trinity River Basin Fish 10 and Wildlife Management -- excuse me, Trinity River Basin 11 Restoration Grant Program. Under the Trinity River 12 Restoration Program a certain amount of funding has been 13 made available to fund fish and wildlife restoration 14 projects in the Trinity River basin that the participating 15 agencies of the task force have not thought of. 16 It's just basically based on the concepts that 17 private enterprise and nongovernment entities may have 18 ideas to help restore the fishery that the agencies haven't 19 thought of. I have overseen the expenditure of substantial 20 sums of money. Under that program, probably close to a 21 million dollars including one project, I might add, 22 supervising the development of a daily temperature model 23 for the Lewiston Reservoir, which actually was prepared by 24 Dr. Russ Brown who was the previous expert witness on the 25 panel before us. CAPITOL REPORTERS (916) 923-5447 4686 1 I also have been a project manager for a 205j 2 Clean Water Act Grant from this Board here. It was called 3 the Sacramento River Temperature Modeling Project. And 4 what we did is we developed daily temperature models of 5 Shasta Reservoir, Keswick Reservoir, the Sacramento River 6 from Keswick to the confluence with the Feather River. 7 We also developed a daily model of the Feather 8 River below the fish barrier dam. I worked very closely 9 with Dr. Gerald Orlob at UC Davis. His department of Civil 10 and Environmental Engineering was, essentially, the 11 subcontractor for the project. And I worked with 12 Dr. Orlob as well as his graduate students on the project. 13 So I'm quite familiar with Sacramento River 14 temperature issues and, perhaps, to a lesser extent Feather 15 River issues below the fish barrier dam. Done a number of 16 projects. Just offhand, a couple of weeks ago we took out 17 a dam on Barker Creek, the one that I first started on in 18 '83 building fish ladders. And we, actually, took out a 19 small dam, a six-foot high irrigation dam, replaced it with 20 a small well adjacent to the creek for the property owner 21 to have a replacement water source. We opened up 22 approximately seven miles of steelhead habitat. 23 So, basically, I've worked on things from 24 watershed restoration, in-stream restoration, temperature 25 modeling, overseeing quite a bit of work related to CAPITOL REPORTERS (916) 923-5447 4687 1 technical information, particularly with -- in regard to 2 temperature implications for salmon in the Trinity and the 3 Sacramento Rivers. 4 Furthermore, I'm also a member of the California 5 Advisory Committee on salmon and steelhead trout. I've 6 been a member of that group since 1990. I'm a past 7 Chairman of the group. And I currently sit on that group 8 as the public representative. And I also, as a 9 representative of that group, I sit on the SB 271 review 10 committee, which is the California salmon and steelhead 11 restoration account. It's the 40-million-dollar piece of 12 legislation that Senator Thompson got passed a couple years 13 ago to help restore non-Central Valley fisheries primarily 14 in the north coast, but also in the central coast and south 15 coast. So I sit on a committee that helps the Department 16 of Fish and Game determine how to spend those funds. 17 MR. SEXTON: See if I can catch up with you here. 18 MR. STOKELY: Yeah, is there anything else? 19 MR. SEXTON: The last matter that you referred to, 20 the California Advisory Commission on salmon steelhead, are 21 you on that as a representative of Trinity County? 22 MR. STOKELY: No. I represent the public sector. We 23 have a spot for tribal fisheries, commercial fisheries and 24 sport fisheries. And I'm the, quote, public member, since 25 I don't technically represent any of those groups. I do CAPITOL REPORTERS (916) 923-5447 4688 1 not officially represent the County on that group. 2 MR. SEXTON: So when you speak of your affiliation 3 with that group, you're not speaking on behalf of Trinity 4 County? 5 MR. STOKELY: Not necessarily. However, there are 6 times when my position on that group is very consistent 7 with Trinity County's position. In fact, most of the time 8 it is. 9 MR. SEXTON: Let me ask it this way: Are you 10 authorized by the Trinity County Board of Supervisors to 11 speak on behalf of Trinity County at this advisory 12 commission? 13 MR. STOKELY: Not specifically. 14 MR. SEXTON: Okay. The work you did with Mr. Orlob, 15 was that in connection with your employment with Trinity 16 County? 17 MR. STOKELY: Yes. 18 MR. SEXTON: And can you remember what year that was? 19 MR. STOKELY: I believe it was 1996, probably started 20 in '95, in '96 and '97. And we completed the final report, 21 I believe within the last year. I'd have to check my 22 records, but it's pretty recent. 23 MR. SEXTON: Summarize for me, if you will, as 24 Mr. Whitridge did, your knowledge, your understanding of 25 the law of California water rights as they exist now. CAPITOL REPORTERS (916) 923-5447 4689 1 MR. STOKELY: I understand the riparian concepts as 2 well as they can be understood. I do have 35 acres in 3 Hayfork that depends on the year-round stream. And I have 4 riparian rights that I exercise. So I'm generally familiar 5 with those. 6 I am familiar with the area of origin watershed 7 protection statutes that Mr. Whitridge had mentioned, where 8 the area of county watershed has an inchoate priority to 9 the use of that water for its orderly growth and 10 development. I'm familiar with the, I believe, Section 11 1700 of the Water Code referring to water transfers. 12 In general terms, it's my understanding that 13 temporary water transfers are exempt from the California 14 Environmental Act. There's also a section that has not 15 been used yet, Section 1707, I believe it is, which allows 16 for a transfer of a consumptive water right to an in-stream 17 fishery, wildlife, recreational purpose. 18 MR. SEXTON: Excuse me. Mr. Stokely? 19 MR. STOKELY: Yes. 20 MR. SEXTON: How is it that you're familiar with the 21 water transfer provisions of the Water Code? Is Trinity 22 County involved in those areas? 23 MR. STOKELY: Not yet. 24 MR. SEXTON: Okay. 25 MR. STOKELY: But I have read it as I have an CAPITOL REPORTERS (916) 923-5447 4690 1 interest in the issue of water transfers. And I believe 2 that the County does, too. As referenced in our exhibit, 3 the water permits for the Trinity River Division contain a 4 clause that the County of Humboldt and other downstream 5 users have the right to not less than 50,000 acre-feet for 6 the beneficial use of Humboldt County and other downstream 7 users. 8 That water has never been released by the Bureau 9 of Reclamation. And I have studied the water transfer 10 section of the Water Code in order to, potentially, help 11 expedite obtaining use of that water. 12 MR. SEXTON: From the Bureau? 13 MR. STOKELY: Yes. As far as other sections of the 14 Water Code, I'm familiar with Section 100, which I believe 15 is nearly identical to Article 10, Section 2 of the State 16 Constitution, which discussions wasteful and unreasonable 17 use of water. 18 MR. SEXTON: The 35 acres that you own in the Hayfork 19 area, do you farm that land at all? 20 MR. STOKELY: At this point I have probably -- I 21 never measured it, but probably about an acre and a half of 22 lawns. At one time we did have a very extensive organic 23 garden. My wife had a flower business growing, arranging 24 and selling dry flowers. At this point in time between my 25 career and my wife's career, we are not raising any produce CAPITOL REPORTERS (916) 923-5447 4691 1 for our own personal consumption, but we have some great 2 lawns for our kids to play on. 3 MR. SEXTON: Other than the visit you made to the 4 lands, I think you said they were west of the Westlands 5 Water District, have you visited any of the irrigated 6 agricultural areas in the San Joaquin Valley at all? 7 MR. STOKELY: No. 8 MR. SEXTON: Tell me, again, what was the preparation 9 for the visit that was made to the lands outside of the 10 Westlands? It was something to do with some course work I 11 believe you said. 12 MR. STOKELY: Yes. It was a course entitled field 13 biogeography. And, essentially, it was a course looking at 14 how various plants have evolved to their specific 15 conditions that they exist. And in the case of that 16 particular visit, we were looking at the very unique plant 17 species that existed in those soils just west of the 18 Westlands Water District in the New Idria Serpentine 19 barrens, because the plants that exist there are, indeed, 20 very unique because of the high levels of trace elements 21 and heavy metals, and also the lack of certain substances 22 that are in the soils there. 23 MR. SEXTON: Okay. To your understanding when you 24 made that visit was that the heavy metals and the other 25 constituents that were in the plants and soils occurred CAPITOL REPORTERS (916) 923-5447 4692 1 naturally? 2 MR. STOKELY: Yes. However, there is a mine there, 3 which to my understanding had exacerbated some of the 4 conditions. But the plants existed there without any 5 mining. 6 MR. SEXTON: In your studies of biology you mentioned 7 some studies involving geology. Have you done any studies 8 relating to, for example, the movement of selenium in soils 9 or in water bodies? 10 MR. STOKELY: I have not done any research. I've 11 primarily read the exhibit which we submitted to you. I 12 also read part of the Rainbow report, Staff Exhibit 147. 13 MR. SEXTON: Excuse me. I'm sorry. I misspoke. I 14 meant to say the presence of selenium and not the movement. 15 Is the presence of selenium in soils or in water bodies, 16 and I expect your answer to be the same. 17 MR. STOKELY: It's the same. 18 MR. SEXTON: Could I refer you to the Exhibit 17 map 19 that is in your testimony, in your written testimony. 20 MR. STOKELY: Uh-huh. 21 MR. SEXTON: Could you put that up? 22 MR. JACKSON: I'm sorry. 23 MR. SEXTON: Thank you. And this is for either of 24 the panelists. If the panel would look at Exhibit 17 as 25 depicted on the overhead and compare that with Exhibit 17 CAPITOL REPORTERS (916) 923-5447 4693 1 that's shown in your written materials, I think you'll 2 agree that the maps are not identical. 3 And my question is: In what way is the map that's 4 depicted on the overhead Exhibit 17 different from the map 5 that's depicted in the written submittal? 6 MR. STOKELY: Couple different ways. Exhibit 17 on 7 the wall has the San Joaquin River on it. The one in our 8 written testimony does not. The written testimony does not 9 show the Kesterson Natural Wildlife Refuge, which is the 10 area in the upper left corner. The written testimony does 11 not. The overhead does. 12 The colors that are shown to depict the different 13 soil salinity concentrations are different. That map uses 14 colors that are different than in the written one. The 15 written testimony showing the soil selenium concentrations 16 has various crosshatches in it so that the map itself will 17 photocopy. Whereas, that particular map will not 18 photocopy. That map also shows I-5 on it, which is not 19 shown on the written testimony map. 20 MR. SEXTON: Is it your testimony that the boundaries 21 of the selenium occurrences are identical in the overhead 22 and the submittal of Exhibit 17? 23 MR. STOKELY: That's correct. They're just depicted 24 differently, the boundaries are the same. 25 MR. SEXTON: Could I ask you to take the pointer and CAPITOL REPORTERS (916) 923-5447 4694 1 just point to any particular boundary area of either one of 2 districts or the selenium lands? Okay. You're pointing to 3 a black line and a star. What does that depict? 4 MR. STOKELY: That is the boundary of the Westlands 5 Water District. And that is the town of Mendota. 6 MR. SEXTON: All right. Now, for purposes of this 7 map, how did Trinity County determine the location of that 8 line? 9 MR. STOKELY: Okay. We took a map that's referenced 10 in the Bureau of Reclamation's water permits on file with 11 the State Board. Although the map is obtained from the 12 Bureau of Reclamation, this map 416-208-341, potential 13 service areas Trinity River applications. And that one 14 shows, primarily, the boundaries of pre- and post-Trinity 15 CVP service areas. So that blue line, again, is the 16 pre-CVP service area. The green line is the post-Trinity 17 CVP service area. 18 So, again, the area in between those two lines was 19 added to the CVP service area as a direct result of 20 Trinity. We took that map from the Bureau of Reclamation. 21 Then -- 22 MR. SEXTON: Could I interrupt you for just one 23 second, sir? 24 MR. STOKELY: Sure. 25 MR. SEXTON: The map you took from the Bureau, was it CAPITOL REPORTERS (916) 923-5447 4695 1 a regular 8 by 10 sheet of paper like you have there before 2 you now? 3 MR. STOKELY: No. 4 MR. SEXTON: How did the map exist when you got it 5 from the Bureau? 6 MR. STOKELY: It was kind of a Mylar, although not 7 exactly. It was a -- 8 MR. SEXTON: Was it a GIS map? 9 MR. STOKELY: No. It was kind of a -- stuff you can 10 make blueprints out of. The word is kind of escaping me 11 now, but it's kind of a -- 12 C.O. STUBCHAER: Film or cloth? 13 MR. STOKELY: No, perhaps, something like that. 14 Anyway, it was probably an 8 1/2 by 20 sheet. And -- 15 actually, I have an overhead of it, if you'd like to look 16 at it. Anyway, that's what I got from the Bureau. 17 MR. SEXTON: How accurate would you say that the 18 Exhibit 17 map is in relation to the depicted selenium 19 lands? In other words, if you picked the -- it's not -- if 20 you picked the difference in the Mary Kay Cadillac color 21 there in the middle, kind of a pinkish, where it blends in 22 with that other brighter color -- 23 MR. STOKELY: Uh-huh. 24 MR. SEXTON: What, in your view, is the accuracy 25 depicted on Exhibit 17, is it like plus or minus five CAPITOL REPORTERS (916) 923-5447 4696 1 miles, or ten miles, or greater, less? 2 MR. STOKELY: It's probably no more than a mile. 3 MR. SEXTON: Okay. So your view is that the location 4 of the selenium boundaries is accurate to plus or minus one 5 mile? 6 MR. STOKELY: You know, I have to tell you I'm not 7 totally sure what they all are. I gave all this 8 information to a GIS person. And maybe to finish your 9 previous question, I gave them the map from the Bureau. I 10 had a map of the Westlands Water District, that's one of 11 the handouts that the District gives out. And then we had 12 the 8 1/2 by 11 of the Tidball map, gave the person all 13 three of those maps. He put them into GIS coordinates, put 14 it altogether. I really am not qualified to answer you on 15 what the accuracy of the mapping is for any of the areas 16 shown up there. 17 MR. SEXTON: When you say you gave them the Tidball 18 map, are you referring to the map that's shown in Trinity 19 County Exhibit 16 on the -- depicted on the back of the 20 cover page? 21 MR. STOKELY: Yes. 22 MR. SEXTON: It's actually page 18, apparently, from 23 that report? 24 MR. STOKELY: Yes. 25 MR. SEXTON: Okay. CAPITOL REPORTERS (916) 923-5447 4697 1 MR. STOKELY: Figure 7. 2 MR. SEXTON: And the report that this map was taken 3 from is a report on water quality in the Tulare Lake bed 4 area? 5 MR. STOKELY: Tulare Lake bed, southern San Joaquin 6 Valley, U.S. Geological Survey. It's on soils in the San 7 Joaquin Valley. I guess the title there says "Tulare 8 Lake." It, certainly, includes areas within the San 9 Joaquin drainage. 10 MR. SEXTON: Okay. But your testimony is that you 11 believe that the map depicted by Exhibit 17 is accurate to 12 approximately one mile with respect to the locations of the 13 selenium lines? 14 MR. STOKELY: No. I take that back. I'm not sure. 15 Although -- 16 MR. SEXTON: How about -- excuse me, were you 17 finished? 18 MR. STOKELY: Yeah. 19 MR. SEXTON: All right. How about with respect to 20 the boundaries of the districts depicted on Exhibit 17, are 21 you confident of the accuracy of the map to any degree? 22 MR. STOKELY: I cannot testify as to the accuracy of 23 the map. It's general information. 24 MR. SEXTON: Okay. 25 MR. STOKELY: Somebody may be able to come up with CAPITOL REPORTERS (916) 923-5447 4698 1 something different. 2 MR. SEXTON: Yeah. Mr. Whitridge, do you have 3 anything to add to that, sir? 4 MR. WHITRIDGE: Nothing to add. 5 MR. SEXTON: Thank you. Could I refer the panel to 6 Page 2 of your written testimony. Page 2 of your written 7 testimony, Exhibit 15, the second full paragraph, the first 8 sentence. The sentence reads: 9 (Reading): 10 "The areas which were added to the CVP/POU from 11 the TRD also the source areas for agricultural 12 drainage water which goes into the San Luis 13 drain and the former Kesterson National Wildlife 14 area as well as some of the on-site evaporation 15 ponds in the western San Joaquin Valley for 16 those areas not served by the San Luis drain." 17 Of the two of you, sir, whose testimony is that? 18 MR. STOKELY: Mine. 19 MR. SEXTON: Mr. Stokely. What is the basis of that 20 testimony, sir? In other words, what do you base your 21 testimony? What do you base that sentence on? 22 MR. STOKELY: I base it on Exhibit 22, but I do stand 23 corrected. I did not see anything in Exhibit 22 that would 24 indicate that there are any on-site evaporation ponds 25 within this area here. It's my understanding that most of CAPITOL REPORTERS (916) 923-5447 4699 1 the evaporation ponds are within the Tulare Lake basin. 2 However, that's not to say that there aren't any 3 evaporation ponds here, but I have not seen any evidence 4 that would say that there are. 5 MR. SEXTON: So would you agree, then, sir, that the 6 first sentence of this paragraph is not applicable to 7 source areas for agricultural drainage water that goes into 8 the San Luis drain? 9 MR. STOKELY: No. I believe that some of these areas 10 do drain into the San Luis drain here. 11 MR. SEXTON: From the Tulare Lake basin area? 12 MR. STOKELY: No. No. But Trinity River water is 13 the source area for some lands that go into the San Luis 14 drain. It's not my understanding that the San Luis drain 15 drains the Tulare Lake basin. 16 MR. SEXTON: I understand that. What I'm trying to 17 understand is the basis for the testimony that we've just 18 read into the record. 19 Where are you getting that testimony from? Is 20 this something of your own personal knowledge, or is it 21 something that you have gotten from Trinity County Exhibit 22 22, or from something else? 23 MR. STOKELY: Okay. There is a portion of that 24 sentence that is incorrect. 25 MR. SEXTON: Which portion is incorrect? CAPITOL REPORTERS (916) 923-5447 4700 1 MR. STOKELY: The last clause in it after the comma 2 it says: 3 (Reading): 4 "As well as some of the on-site evaporation 5 ponds in the western San Joaquin Valley for 6 those areas not served by the San Luis drain." 7 MR. SEXTON: So that portion of the sentence should 8 be stricken? 9 MR. STOKELY: I don't have a problem with that. 10 MR. SEXTON: And the sentence says that: 11 (Reading): 12 "The areas which were added to the CVP/POU 13 from the TRD are also the source areas for 14 agricultural drainage water which goes into the 15 San Luis drain and to the former Kesterson 16 National Wildlife area," period? 17 MR. STOKELY: Uh-huh. 18 C.O. STUBCHAER: I'm sorry, was that a "yes"? 19 MR. STOKELY: Yes. 20 MR. SEXTON: Which areas currently drain into the San 21 Luis drain and to the former Kesterson Wildlife area? 22 MR. STOKELY: I'm not sure of the exact areas. The 23 general location, I believe, of those areas is some of the 24 bottom lands near the San Joaquin River. I believe the 25 drain runs somewhere through here, but I'm really not sure, CAPITOL REPORTERS (916) 923-5447 4701 1 sir. 2 MR. SEXTON: So you pointed to an area where the 3 black line is? 4 MR. STOKELY: Yeah. 5 MR. SEXTON: Is that the Westlands boundary area? 6 MR. STOKELY: Yes. 7 MR. BIRMINGHAM: Could I ask that answer be marked 8 for the record? 9 C.O. STUBCHAER: Yes. Please mark the answer, Mary. 10 MR. SEXTON: Somehow I knew you were going to say 11 that. And the next question, follow-up question to that 12 previous one, Mr. Stokely, is the sentence that we've just 13 been referring to makes reference to areas that are added 14 to the CVP point of use. 15 MR. STOKELY: Uh-huh. 16 MR. SEXTON: And my question is: Is it your 17 testimony that areas that were added to the CVP point of 18 use in the '60s are the areas that now drain into the San 19 Luis drain? 20 MR. STOKELY: Well, it's my understanding that some 21 of the areas down in here do drain into the San Luis drain. 22 MR. SEXTON: Let me follow-up with another question: 23 Is it your testimony -- 24 MR. BIRMINGHAM: Excuse me. Can the record reflect 25 that the witness referred to the eastern portion of the CAPITOL REPORTERS (916) 923-5447 4702 1 area within the boundaries of Westlands Water District in 2 response to his -- in connection with his last response? 3 C.O. STUBCHAER: Yes. 4 MR. SEXTON: Mr. Stokely, is it your testimony that 5 areas within the CVP that were served with water prior to 6 the 1960's expansion drained into the San Luis drain? 7 MR. STOKELY: I'm not sure. However, I don't believe 8 the drain was completed at that time. I'm not -- I don't 9 believe it was constructed, but I really don't know. 10 MR. SEXTON: The next sentence in the second full 11 paragraph on Page 2 of Trinity County's 15 states -- or 12 reads: 13 (Reading): 14 "That significant degradation of water quality 15 in the San Joaquin Valley from selenium, salts, 16 boron, arsenic, sulfur and mercury is, thus, a 17 result of damming the Trinity River to allow 18 irrigation of lands containing harmful salts and 19 trace elements." 20 Do you stand by that testimony, sir? 21 MR. STOKELY: Sure. Let me add to that -- 22 MR. SEXTON: Let me, if I could -- I won't stop you 23 from adding to it, obviously; but if I could, while it's on 24 my mind, let me follow-up with a question. As 25 Mr. Birmingham said, it's hard to think when your brain is CAPITOL REPORTERS (916) 923-5447 4703 1 in a jar sitting on somebody's desk. 2 MEMBER BROWN: That was funny. 3 C.O. CAFFREY: That was. Mr. Brown liked that one 4 let the record show. 5 MEMBER DEL PIERO: Is it a normal condition, 6 Mr. Birmingham? 7 C.O. CAFFREY: Do we have that? Let's have that to 8 show Mr. Del Piero. 9 C.O. STUBCHAER: That's Mr. Birmingham's story. 10 MR. SEXTON: Could you explain, sir, in your view how 11 does arsenic, for example, result in a water quality 12 degradation in the San Joaquin Valley? 13 And the basis of my question is: Isn't it true 14 that arsenic in the western San Joaquin Valley soils is 15 immobile and, therefore, is not a water quality problem? 16 MR. STOKELY: I don't know too much about arsenic, 17 but quoting from the Rainbow report on Page 40 -- 18 MR. JACKSON: Excuse me. The Rainbow report is which 19 of the Staff's -- 20 MR. STOKELY: Staff Exhibit 147. 21 MR. JACKSON: Thank you. 22 MR. STOKELY: Selenium leads to four elements of 23 primary concern, the others being boron, molybdenum, 24 arsenic. Primarily, because it is widely distributed in 25 the study area and because of its potential proximity, CAPITOL REPORTERS (916) 923-5447 4704 1 water and mud flows have transported the selenium to the 2 valley in particulate and dissolved forms derived from the 3 weathering and erosion of source rocks. 4 Decades of irrigation have transferred soluble 5 selenium from the upper soils to the shallow groundwater 6 where its highest concentrations occur, generally, along 7 the edge of the valley trough in the lower parts of the 8 coast range of alluvial fans. 9 MR. SEXTON: Okay. So is the basis of the statement 10 in Trinity 15 that we just read into the record, is that 11 from -- is that of your own personal knowledge, or your 12 knowledge as an expert witness, or is it as a result of you 13 paraphrasing the language you just read from the Rainbow 14 report? 15 MR. STOKELY: It's a result of reading Mr. Felix 16 Smith's article, Exhibit 22. And I believe, also, from 17 reviewing exhibits -- Exhibit 19, "Distribution of Selenium 18 Mercury and Other Elements in Soils of the San Joaquin 19 Valley and Part of the San Luis Drain Service Area." 20 MR. SEXTON: So you would admit, then, that the 21 Rainbow report passage that you just read didn't say 22 anything about arsenic moving and creating a water quality 23 problem; isn't that correct? 24 MR. STOKELY: Yeah. The Rainbow report just says 25 arsenic is primarily a concern in the Tulare and Kern CAPITOL REPORTERS (916) 923-5447 4705 1 sub-areas where it's been observed in elevated 2 concentrations in shallow groundwater, Page 40. 3 MR. SEXTON: Yeah. So the testimony that you have in 4 Trinity 15 relating to that subject you have gleaned from 5 your reading of the Rainbow report and your reading of 6 Felix Smith's law review article -- 7 MR. STOKELY: No. I didn't glean that statement from 8 here. I only gleaned it from our exhibits. It's 22 and 9 19. 10 MR. SEXTON: Trinco 19 is a 1986 report of the U.S. 11 Geological survey; is that correct? 12 MR. STOKELY: It's a report on selenium and 13 agricultural implications from the San Francisco Bay and 14 the California environment proceedings of the third 15 selenium symposium, March 15th, '86. And this particular 16 article was written by R.R. Tidball, R.C. Severson, 17 J.N. McNeal, S.A. Wilson. It was presented by Ronald 18 Tidball, USGS, Denver, Colorado. 19 MR. SEXTON: Okay. So Exhibit 19, then, is not the 20 USGS report? 21 MR. STOKELY: No. It's written by a USGS employee, 22 but it is a report from a selenium symposium. 23 MR. SEXTON: And the selenium symposium, at least 24 according to the cover sheet on Exhibit 19, is cosponsored 25 by the Bay Institute of San Francisco? CAPITOL REPORTERS (916) 923-5447 4706 1 MR. STOKELY: Yes. 2 MR. SEXTON: So your view, then, is that this is an 3 unbiased technical document from which to glean information 4 to present to this Board? 5 MR. STOKELY: Yes. 6 MR. SEXTON: Did you read the entire Exhibit 19 7 report there? 8 MR. STOKELY: Yes, I did. 9 MR. SEXTON: Could you explain to me what it means on 10 Page 76 of that report under "results" when it says: 11 (Reading): 12 "The kriging algorithm has a sloughing affect 13 on the data that tends to reduce the highest 14 peaks that changes the median value very 15 little." 16 What does that mean? 17 MR. STOKELY: I don't know. 18 MR. SEXTON: Could you look at Page 81 of the report 19 under the caption of "Selenium Problems Likely Elsewhere." 20 You see the second sentence there, it says: 21 (Reading): 22 "The circumstances at Kesterson Reservoir were 23 aggravated by human activity." 24 MR. STOKELY: Yes. 25 MR. SEXTON: Do you disagree with that statement? CAPITOL REPORTERS (916) 923-5447 4707 1 MR. STOKELY: No. 2 MR. SEXTON: May I refer to Felix Smith's law review 3 article, Trinity County 22. Have you read this entire 4 article? 5 MR. STOKELY: Several times. 6 MR. SEXTON: Have you spoken with Mr. Smith about the 7 article? 8 MR. STOKELY: Yes. 9 MR. SEXTON: What -- -- excuse me, I seem to have 10 lost my notes. 11 C.O. CAFFREY: There you go. 12 C.O. STUBCHAER: Mr. Sexton? 13 MR. SEXTON: Yes. 14 C.O. STUBCHAER: How much longer do you believe your 15 examination will take? 16 MR. SEXTON: It's difficult to estimate, 17 Mr. Chairman. It kind of depends on the answers I get, but 18 I would think probably, perhaps, 20 to 30 minutes. 19 C.O. STUBCHAER: This might be a good time to take a 20 break then. 21 MR. SEXTON: All right. 22 C.O. STUBCHAER: If it's all right with you. Let's 23 take a 12-minute break. 24 (Recess taken from 2:28 p.m. to 2:42 p.m.) 25 C.O. STUBCHAER: Please, come back to order. CAPITOL REPORTERS (916) 923-5447 4708 1 Mr. Sexton, before you resume we're going to have a little 2 discussion of the order of the proceedings for the next 3 couple of days. 4 MR. SEXTON: All right. 5 MR. O'LAUGHLIN: Where's Mr. Jackson? 6 C.O. STUBCHAER: He just left. Mr. O'Laughlin, can 7 you tell us what is pending? 8 C.O. CAFFREY: Excuse me for interrupting, 9 Mr. Stubchaer. Why don't we wait until more people are in 10 the room so we don't have to repeat it. It will affect a 11 number of people. 12 MR. O'LAUGHLIN: Go ahead, you go first. 13 C.O. STUBCHAER: Mr. Jackson? 14 MR. JACKSON: Yes, sir. 15 C.O. STUBCHAER: On the scheduling. 16 MR. JACKSON: It's getting late in the afternoon and 17 I can see that there's going to be more testimony. I have 18 a previous engagement to go to Washington, D.C., in regards 19 to an appropriation bill that is being negotiated right 20 now. I put it off, because of this particular case. 21 I would request that we be allowed to come back on 22 Tuesday morning and finish the case next week. My 23 understanding is that Stockton East is prepared to go 24 tomorrow. They will, then, finish tomorrow or early 25 Tuesday morning. And we will finish after them. And, CAPITOL REPORTERS (916) 923-5447 4709 1 then, the Government, I understand, will begin its case for 2 Tuesday and Wednesday. 3 C.O. CAFFREY: Mr. Stubchaer has kindly deferred to 4 me as kind of the ongoing Hearing Officer, even though I'm 5 not technically hearing this one case in chief. Our 6 philosophy is that whatever order that you can all agree to 7 is fine with us. We do not have a preference in which 8 order to hear the cases in chief within a phase. 9 So if that's agreeable to everybody, and we have 10 done this in the past when individuals were inconvenienced 11 by the immediate schedules. 12 Mr. O'Laughlin? 13 MR. O'LAUGHLIN: Yes. Thank you, Mr. Chairman, very 14 quickly on this. The order we worked out is that Trinity 15 County will finish up today. Starting tomorrow, Stockton 16 East will put on a panel of witnesses for the Regional 17 Water Quality Control Board. That will probably be the 18 scope and extent of the testimony. 19 Then, Stockton East will, then, take a break. In 20 starting next Tuesday, again, we'll start off with Trinity 21 County's. We will finish Trinity County's next Tuesday, 22 hopefully next Wednesday, at which point in time the 23 Department of Interior will proceed with their case. 24 And, then, coming back with the Department of the 25 Interior. Starting the following week would be the San CAPITOL REPORTERS (916) 923-5447 4710 1 Luis Delta-Mendota Water Authority, followed up back by 2 Stockton East, again. And, then, finally back to my client 3 the San Joaquin River Group. Okay. 4 And we're trying to be as flexible as possible 5 with people's schedules, but that's generally what the 6 schedule is right now that we're looking at. As you well 7 know that all depends on the scope and extent of the 8 cross-examination and how long that takes. But we will try 9 to stick to that time frame. 10 C.O. CAFFREY: I'm going to rely on Ms. Whitney to 11 have gotten all that. 12 MS. WHITNEY: We may ask you again later. 13 C.O. CAFFREY: Just for the record and for fairness 14 sake, does anybody in the room have any objections to the 15 schedule that Mr. O'Laughlin just laid out? All right, 16 then, that will be the order. That is the agreement among 17 the parties presenting cases in chief in this phase. And 18 we appreciate your time and we'll follow that. 19 We're back to Mr. Stubchaer. 20 C.O. STUBCHAER: And I'm back to Mr. Sexton. 21 Mr. Sexton, please, proceed. 22 MR. SEXTON: Thank you, sir. 23 MEMBER DEL PIERO: Mr. Sexton, I think that you 24 should be aware that the Board has decided to give an award 25 at the end of these hearings for most entertaining CAPITOL REPORTERS (916) 923-5447 4711 1 cross-examination, not to put any pressure on you. 2 C.O. CAFFREY: Without a category for costume, I take 3 it? 4 MR. SEXTON: Thank you, Mr. Del Piero. It's always 5 nice to deal with unbiased hearing officers. 6 MEMBER DEL PIERO: That's why Mr. Stubchaer and 7 Mr. Caffrey are Hearing Officers. 8 MR. SEXTON: Mr. Whitridge, I just want to make sure, 9 do you have anything to add, sir, to the testimony that 10 Mr. Stokely delivered before our break? 11 MR. WHITRIDGE: No. 12 MR. SEXTON: In your written testimony you state, 13 essentially, that the Board should make a finding that the 14 delivery of CVP irrigation water to areas where the soil 15 selenium concentrations are greater than 0.36 micrograms 16 per gram is a wasteful and unreasonable use of water. Is 17 that the testimony of Trinity County? 18 MR. STOKELY: Yes. 19 MR. SEXTON: What is the scientific basis for the use 20 of .36 micrograms per gram soil salinity for restricting 21 the delivery of water? 22 MR. STOKELY: It's the upper decial of selenium 23 concentrations in soils in the San Joaquin Valley. It's 24 somewhat arbitrary, but I used it because the winter-run 25 biological opinion requires a 90-percent exceedance water CAPITOL REPORTERS (916) 923-5447 4712 1 forecast for protection of the winter-run. So I used that 2 same very conservative approach. We did add that 3 concentrations greater than that may constitute a wasteful 4 and unreasonable use, but that's the one we picked. 5 MR. SEXTON: Correct me if I'm wrong, but my 6 understanding of the reference to a 90-percent exceedance 7 factor when dealing with forecasts -- forecasted water 8 deliveries, actually, means that the forecast is going to 9 be wrong 90 percent of the time; isn't that right? 10 In other words, it's an ultraconservative forecast 11 based on being wrong 90 percent of time, being right 10 12 percent of the time, and a policy decision has been made 13 that that is necessary in order to protect something? 14 MR. STOKELY: The 90-percent exceedance water supply 15 forecast basically says that 90 percent of the time it will 16 be wetter than that particular forecast. 17 MR. BIRMINGHAM: Could I ask that that be marked, 18 please? 19 C.O. STUBCHAER: Yes. 20 MR. SEXTON: So to put it another way, then, a 21 90-percent forecast, a 90-percent exceedance forecast is 22 going to be wrong 90 percent of the time? 23 MR. STOKELY: Yes. 24 MR. SEXTON: Now, again, if I could get away from the 25 90-percent exceedance forecast for water deliveries and if CAPITOL REPORTERS (916) 923-5447 4713 1 I could focus your attention to what, if any, scientific 2 basis exists for the use of this .36 micrograms a liter -- 3 micrograms per gram soil salinity as a measurement for 4 restricting the deliveries of water, could you tell me 5 where that comes from? 6 MR. STOKELY: I already told you where it came from. 7 MR. SEXTON: Could you refer to me in your exhibits, 8 or in anything that you have relied upon where that comes 9 from? 10 MR. STOKELY: It's mentioned on Page 3 of our Exhibit 11 15, third paragraph. "The threshold of .36 micrograms per 12 gram is the 90-percent exceedance factor," meaning those 13 lands containing those amounts of selenium are the worse 10 14 percent of soils with selenium. 15 MR. SEXTON: I see it in your Exhibit 15, sir. What 16 I'm asking now is: Where did that come from? 17 MR. STOKELY: I told you. 18 MR. SEXTON: From what report, or from what other -- 19 MR. STOKELY: None other than what I told you about 20 the water supply forecast. 21 MR. SEXTON: Could I refer the panel to overhead 22 Trinity County Exhibit 17, the selenium locations within 23 the soils. My question is: 24 Isn't it true that the soil selenium 25 concentrations shown on the map bear no direct relation to CAPITOL REPORTERS (916) 923-5447 4714 1 selenium concentrations in groundwater and drainage water? 2 MR. STOKELY: There is a difference between selenium 3 in groundwater and selenium in soils, if that's your 4 question. 5 MR. SEXTON: Well, I think you've answered my 6 question. If I understand what you're saying, then, there 7 is no relationship between selenium concentration in soils, 8 as depicted on Exhibit 17, and selenium concentrations in 9 groundwater and drainage water? 10 MR. STOKELY: There is a relationship, but it's 11 difficult to prove. And let me quote from the Rainbow 12 report, Staff Exhibit 147, once again, Page 40 and Page 41: 13 (Reading): 14 "Decades of irrigation have transferred soluble 15 selenium from the upper soils," these areas 16 here, "to the shallow groundwater where its 17 highest concentrations, generally, occur along 18 the edge of the valley trough in the lower part 19 of the coast range alluvial fans." 20 MR. SEXTON: Is it your testimony -- 21 MEMBER DEL PIERO: Mr. Sexton, just for our record 22 when he says "these areas here," we need to have that 23 referenced to the section. 24 MR. STOKELY: Okay. What I'm referring to is the 25 lands adjacent to the San Joaquin River on the west side of CAPITOL REPORTERS (916) 923-5447 4715 1 the San Joaquin River. 2 MR. JACKSON: On Trinity Exhibit -- 3 MR. STOKELY: On Trinity Exhibit 17. 4 MR. SEXTON: Is it -- 5 MR. BIRMINGHAM: May the record reflect that in his 6 response his first "here" refers to the area depicted in 7 red on the -- near the western boundary towards the -- in 8 the middle -- excuse me, top third of Westlands Water 9 District as it's depicted on Trinity County Exhibit 17? 10 C.O. STUBCHAER: What has previously been referred to 11 as radioactive red? 12 MR. BIRMINGHAM: I believe that's correct. 13 C.O. STUBCHAER: The record will so reflect. 14 MR. BIRMINGHAM: Thank you. 15 MR. SEXTON: Is it your testimony, Mr. Stokely or 16 Mr. Whitridge, either of you, that the selenium 17 concentration in the soil profile shown on Trinity Exhibit 18 17 is all soluble selenium which can be leached into 19 groundwater, or agricultural drainage? 20 MR. STOKELY: I don't know. 21 MR. SEXTON: So if I represented to you that the 22 selenium in the soils shown on Exhibit 17, that that 23 selenium is not readily available for leaching, you would 24 not have any basis to question my representation; is that 25 correct? CAPITOL REPORTERS (916) 923-5447 4716 1 MR. STOKELY: All I know, sir, is that the 2 concentrations of selenium are higher in some areas than 3 others. It's the highest there, next highest there, next 4 highest as you move on down through those areas. 5 MR. SEXTON: I understand. You just pointed to the 6 three areas shown in your map which represent selenium in 7 the soil profile. 8 My question is to you: Notwithstanding the map 9 and the existence of selenium in the soil profile, if I say 10 to you that selenium in the soil profile depicted on 11 Exhibit 17 is not readily available for leaching into 12 drainage or groundwater systems, do you have any basis upon 13 which to question that representation? 14 MR. STOKELY: I don't know. 15 MR. SEXTON: Okay. 16 C.O. STUBCHAER: Ms. Leidigh, did you have something? 17 MS. LEIDIGH: Yeah. Mr. Stokely when you were saying 18 "there" and "there" and "there," were you pointing to the 19 areas first that were red and then pink and then -- 20 MR. STOKELY: That's correct. I was pointing to the 21 three different shades of coloring starting with the 22 highest selenium concentration and moving down. 23 MS. LEIDIGH: Okay. Thank you. 24 MR. BIRMINGHAM: On Exhibit 17. 25 MS. LEIDIGH: Makes a better record, too. CAPITOL REPORTERS (916) 923-5447 4717 1 MR. STOKELY: On Exhibit 17, excuse me. 2 MS. LEIDIGH: Yes. 3 MR. SEXTON: Could I refer the panel to Page 3 of 4 Trinity Exhibit 15, the numbered paragraphs towards the 5 bottom of the page, which are introduced by the sentence 6 that says: 7 (Reading): 8 "The benefits of cessation of water 9 deliveries," et cetera. 10 My question is with respect to item number three. 11 Apparently, Trinity County's view is that one of benefits 12 of ceasing water deliveries and irrigation to highly 13 seleniferous soils in the western San Joaquin Valley result 14 in the reversal of bioaccumulation of selenium in San 15 Joaquin River organisms exposed to seleniferous 16 agricultural drainage water. What evidence do you have -- 17 well, what is the basis for that opinion, either of the 18 panelists? 19 Mr. Stokely, I see you looking through the Felix 20 Smith report. 21 MR. STOKELY: Yes. 22 MR. SEXTON: If that's the basis for it, that's all 23 you have to tell me. 24 MR. STOKELY: Exhibit 22. 25 MR. SEXTON: So the basis for the statement, Number 3 CAPITOL REPORTERS (916) 923-5447 4718 1 on Page 3 of Trinity's Exhibit 15 comes from 2 Mr. Smith's law review article which is Trinity County 22? 3 MR. STOKELY: Yes. 4 MR. SEXTON: Do you have any independent basis for 5 that testimony? 6 MR. STOKELY: No. 7 MR. SEXTON: Could I ask the panel -- I'm going to 8 refer to some reports on salinity and selenium. And I 9 would like to ask you, either of the panelists: Have 10 reviewed any of these data? 11 The first is a report by S.J. Deverel and S.K. 12 Gallanthine, 1989, entitled "Distribution of Salinity and 13 Selenium in Relation to Hydrologic and Geochemical 14 Processes," San Joaquin Valley, California, Journal of 15 Hydrology. And then there's a reference to page numbers. 16 Is that familiar to either of you? 17 MR. STOKELY: I believe I have reviewed that article. 18 MR. SEXTON: Okay. And is it your testimony, then, 19 Mr. Stokely, that that article is, or the findings, or the 20 data in that article is consistent with the testimony that 21 you're rendering today? 22 MR. STOKELY: I'm not sure. I don't recall the 23 details of that particular article. 24 MR. SEXTON: So your answer is: You don't know 25 whether the findings in the article are consistent with CAPITOL REPORTERS (916) 923-5447 4719 1 your testimony today? 2 MR. STOKELY: That's correct. 3 MR. SEXTON: The second article is by J.L. Fio, 4 R. Fujii and S.J. Deverel, 1981, "Evaluation of Selenium 5 Mobility in Soil using Sorption Experiments and a Numerical 6 Model," Western San Joaquin Valley, California, Soil 7 Science Society America Journal, and the reference to the 8 page. 9 Does that ring a bell to either of you? 10 MR. STOKELY: No. 11 MR. SEXTON: The next article is Roger Fujii, 12 S.J. Deverel and D.B. Hatfield, 1988, "Distribution of 13 Selenium in Soils in Agricultural Fields," Western San 14 Joaquin Valley, California, Soil Science Society America 15 Journal and the page reference? 16 MR. STOKELY: No. 17 MR. SEXTON: And, finally, Roger Fujii and 18 S.J. Deverel, 1988, "Mobility and Distribution of Selenium 19 and Salinity in Groundwater and Soil of Drained 20 Agricultural Fields," Western San Joaquin Valley, 21 California? 22 MR. STOKELY: No. 23 MR. SEXTON: Thank you, no further questions. 24 C.O. STUBCHAER: Thank you, Mr. Sexton. 25 Mr. Brandt. CAPITOL REPORTERS (916) 923-5447 4720 1 ---oOo--- 2 CROSS-EXAMINATION OF TRINITY COUNTY 3 BY THE DEPARTMENT OF THE INTERIOR 4 BY ALF BRANDT 5 MR. BRANDT: Good afternoon. My name is Alf Brandt. 6 I represent the United States Department of the Interior. 7 A couple of questions. I want to understand better -- I'd 8 like to understand better your proposal that the Board add 9 a condition to require the BOR's Trinity River Division 10 operations for any CVP project purpose remain in full 11 compliance with the Trinity River temperature objectives. 12 It's on page 5 of the testimony, Exhibit 15. 13 Can you tell me what the practical effect on flow 14 would be from imposing that condition on the Bureau's 15 permits? 16 MR. STOKELY: There would be no practical effect at 17 all. 18 MR. BRANDT: Why is there no practical effect at all? 19 MR. STOKELY: Because the Bureau of Reclamation 20 currently does comply with Trinity River temperature 21 objectives in the north coast basin plan. 22 MR. BRANDT: So there would be no change between what 23 we're doing at this point and what would be required under 24 this condition? 25 MR. STOKELY: Correct. However, the concern stems CAPITOL REPORTERS (916) 923-5447 4721 1 from, I believe it was a 1992 lawsuit filed by Pacific 2 Coast Federation of Fishermen's Association against the 3 Bureau of Reclamation regarding the winter-run. 4 Trinity County intervened in the case, because we 5 had concerns that the litigation may affect Trinity River 6 operations to the detriment of Trinity River fish. When 7 Trinity River filed its intervention papers on behalf of 8 the plaintiffs, we stated that the Bureau of Reclamation is 9 required to comply with Trinity River basin plan 10 temperature objectives. 11 The response from the Department of Justice was 12 that until or unless the basin plan temperature 13 requirements are implemented, quote, "either through waste 14 discharge requirements or through amendment of the Bureau 15 of Reclamation's water permits, that Reclamation was not 16 required to comply with those temperature objectives." 17 MR. BRANDT: So you just want to achieve a 18 requirement on something that we are already doing at this 19 point? 20 MR. STOKELY: That's correct. 21 MR. BRANDT: And can you tell me what the impact on 22 flow would be from the carryover requirements that you 23 propose? It's item Number 6 on Page 6. 24 MR. STOKELY: No, it has not been analyzed in any 25 modeling runs as to what the effect would be of carryover CAPITOL REPORTERS (916) 923-5447 4722 1 storage in Trinity. It would likely reduce water available 2 for export to the CVP, but I don't know, specifically, what 3 the effects would be. 4 MR. BRANDT: So you don't know what the effects would 5 be on the flow going down the Trinity River from imposing 6 that condition? 7 MR. STOKELY: The fishery flow release would be 8 unaffected. However, there might be an increase in safety 9 of dam releases from Trinity and Lewiston dams into the 10 Trinity River, possibly. But, again, the refill potential 11 of Trinity Lake at that level is still quite low. 12 MR. WHITRIDGE: Additionally, the tendency of the 13 request would be to ensure that the fishery flows can be 14 made even in the years of drought. 15 MR. STOKELY: Maybe to add to that as well, the 16 concern is to meet fishery flows and to meet Trinity River 17 temperature objectives. The concern is that if storage in 18 Trinity Lake gets too low, there's not a large enough pool 19 of cold water available to meet the temperature 20 requirements. 21 MR. BRANDT: I just want to make sure I understand, 22 when you say "fishery flows," either one of you, just to 23 use the word "fishery flows," what do you consider those to 24 be? 25 MR. STOKELY: 340,000 acre-feet a year as required by CAPITOL REPORTERS (916) 923-5447 4723 1 CVPIA. 2 MR. BRANDT: So it would not increase the flows, it 3 would just maintain the flows at that 340,000 as required 4 by CVPIA at this time? 5 MR. STOKELY: Correct. And we believe it would 6 improve the likelihood of meeting basin plan temperature 7 objectives as well. 8 MR. BRANDT: Next, I would like to ask you about your 9 conclusion of unreasonable use of water. Is there -- you 10 base that conclusion on what you state in your testimony; 11 is that correct, in your written testimony? 12 MR. STOKELY: Yes. 13 MR. BRANDT: Is there anything else that you base 14 that conclusion on? 15 MR. STOKELY: Yes. Exhibit 22, Mr. Smith's San 16 Joaquin law review article; Exhibit 20, the Central Valley 17 Regional Board 303(d) list of impaired water bodies. And 18 the other information that I talked about orally during my 19 oral presentation today, which is basically gleaned from 20 Exhibit 22. 21 MR. BRANDT: Have you ever been involved in any 22 proceeding regarding unreasonable use of water in 23 California other than this one? 24 MR. STOKELY: Not that I'm aware of. 25 MR. BRANDT: Mr. Whitridge? CAPITOL REPORTERS (916) 923-5447 4724 1 MR. WHITRIDGE: Not personally. We have -- there 2 have been such proceedings, in fact, before a court rather 3 than a Board in our county that I was watching with 4 interest, but I was not a party to. 5 MR. BRANDT: In effect, are you looking for more 6 water going down the Trinity River as opposed to going out 7 to the Central Valley Project? 8 MR. STOKELY: We, certainly, hope so. 9 MR. BRANDT: Okay. 10 MR. STOKELY: But there's no guarantee. 11 MR. BRANDT: Now, was it your testimony that this 12 Board could not do anything until the Secretary made 13 decisions pursuant to CVPIA? 14 MR. WHITRIDGE: Yes. It is my testimony that the 15 Board could not, in the sense that it could not do so with 16 confidence, make a decision that was right and appropriate 17 without knowing how much water is available. And it's our 18 belief that the Interior Secretary's decision is going to 19 determine the amount of water which needs to go down the 20 river and, thus, to balance, that is available so, yes. 21 MR. BRANDT: But, yet, you still request the Board to 22 take certain actions to ensure -- I think we talked about 23 them, compliance with temperature and carryover storage? 24 MR. WHITRIDGE: Correct. 25 MR. BRANDT: So they can do that before the Secretary CAPITOL REPORTERS (916) 923-5447 4725 1 takes any action? 2 MR. WHITRIDGE: Correct, because those are protective 3 of the in-basin uses which are primary. 4 MR. BRANDT: If they were in conflict with whatever 5 the Secretary ultimately decides, what happens? 6 MR. WHITRIDGE: We presented those as interim 7 measures, primarily, because the Secretary's decision will 8 be at least one more water year away, and who knows how 9 much farther. And so in the interim we're seeking that 10 minimal reasonable protection is, at least, offered. 11 MR. BRANDT: Are you aware of the Hoopa Valley Indian 12 Reservation Water Quality Control Plan that has been 13 proposed? 14 MR. STOKELY: Yes. 15 MR. BRANDT: How do you -- what you're saying here 16 today is that consistent -- are they consistent? 17 MR. STOKELY: The Hoopa Valley Tribe's Water Quality 18 Control Plan contains temperature objectives that are much 19 more difficult to meet than the Regional Board's 20 temperature objectives. And what we're asking for today 21 does not -- would not, necessarily, meet the Hoopa Valley 22 Tribe's temperature objectives, which have not been 23 approved yet by the EPA. 24 MR. BRANDT: Listening to the prior testimony -- let 25 me just confirm something. I'd like a comment from both of CAPITOL REPORTERS (916) 923-5447 4726 1 you, neither of you attended law school, correct? 2 MR. WHITRIDGE: Correct. 3 MR. STOKELY: No vocation schools. 4 MR. BRANDT: You're not lawyers, correct? 5 MR. BIRMINGHAM: Can the record reflect that both 6 witnesses nodded their heads negatively? 7 MR. WHITRIDGE: Sorry, not a lawyer. 8 MR. STOKELY: Not a lawyer. 9 MR. BRANDT: Then, I'd like to draw your attention to 10 your -- in Exhibit 15, the second paragraph, first page. 11 Let me start with a couple of questions about the Area of 12 Origin Statutes. 13 Have either of you been involved in litigation 14 regarding area of origin -- and when I say "been involved 15 with litigation," let me specify either as a lawyer, which 16 obviously you've said you're not, or as someone directing 17 the litigation position of a party to the litigation 18 regarding area of origin? 19 MR. WHITRIDGE: Not I. 20 MR. STOKELY: No. 21 MR. BRANDT: Have you either of you been involved in 22 litigation regarding Secretary of the Interior's trust 23 responsibilities for Indian -- Native American water rights 24 or fishery rights? 25 MR. WHITRIDGE: In the sense of being a lawyer, or CAPITOL REPORTERS (916) 923-5447 4727 1 directing -- 2 MR. BRANDT: Correct. 3 MR. WHITRIDGE: No, not me. 4 MR. STOKELY: I have not been a lawyer or been 5 involved in directing any litigation regarding the Federal 6 trust obligations, but I did provide, I guess, what's 7 called a deposition in the Westlands lawsuit. I believe it 8 was in '92 or '93 that asked that the CVPIA be set aside 9 until implementation of NEPA -- or until completion of NEPA 10 to implement CVPIA. 11 MR. BRANDT: Can either of you point me to a section 12 in the Area of Origin Statutes that shows why those 13 statutes give a priority over the Bureau of Reclamation for 14 restoration of the Trinity River's fisheries? 15 MR. STOKELY: I will reference a 1977 lawsuit filed 16 by Trinity County against the Bureau of Reclamation. 17 County of Trinity versus Andrus, I believe, but I'm not 18 sure. And at that time Trinity County made an area of 19 origin claim that at that time that Trinity River flows had 20 been temporarily increased for the protection of the 21 fishery. 22 And, then, because of the '77 drought those 23 increased fishery flows were halted and Trinity County made 24 two claims against Reclamation. One was that a NEPA 25 document was required, essentially, to do what the Bureau CAPITOL REPORTERS (916) 923-5447 4728 1 planned to do which was to drain Trinity Lake to about 10 2 percent of capacity that year. 3 And the second claim was that the County had an 4 area of origin right to the water, because of the fishery 5 and recreation at Trinity Lake. And the judge's ruling was 6 that Trinity County did not submit any evidence that showed 7 that it would benefit under the Area of Origin Statutes 8 from leaving water in the basin. However, the judge 9 acknowledged that Trinity County did have a right under the 10 Area of Origin Statutes, it's just that we did not 11 demonstrate the linkage between our benefits from keeping 12 the water in the basin. 13 MR. BRANDT: Can you show me how area of origin, 14 either in the statute or if you can direct me to that 15 opinion, would protect your rights to keep that water in 16 the stream, in the Trinity River? 17 MR. STOKELY: I can provide you with a copy of that 18 opinion. 19 MR. BRANDT: Okay. And, then, does it state, 20 specifically, that area of origin rights provide you some 21 rights for in-stream flows? 22 MR. STOKELY: I don't recall if it was in-stream 23 flows specifically. But I do recall that it said that 24 leaving water in the basin -- if we could demonstrate 25 leaving water in the basin would benefit us financial, that CAPITOL REPORTERS (916) 923-5447 4729 1 we had some grounds. 2 MR. BRANDT: But you can't tell me anything more than 3 that -- 4 MR. STOKELY: No. 5 MR. BRANDT: -- about some right under area of origin 6 for keeping in-stream flows, correct? 7 MR. STOKELY: Well, again, getting back to that 8 lawsuit and my understanding of the Area of Origin Statutes 9 if we can demonstrate a benefit to our county, to our basin 10 from leaving the water within the basin some kind of 11 financial benefit to the people of the county that we could 12 demonstrate -- we could obtain water under the Area of 13 Origin Statutes. 14 MR. BRANDT: Perhaps, you're not getting my question. 15 I'm asking not about in basin -- keeping it within the in 16 basin. I'm asking about in-stream flows and restoring the 17 fisheries. Is there anything in the area of origin statute 18 that would protect those kind of rights? 19 MR. JACKSON: Excuse me, Counsel, so that I 20 understand the question: Is there anything in the Area of 21 Origin Statutes that he knows about? 22 MR. BRANDT: Correct. I'm trying to get the basis 23 for this opinion that he's given us. 24 MR. JACKSON: Okay. 25 MR. BRANDT: That's why I'm trying to understand CAPITOL REPORTERS (916) 923-5447 4730 1 where they get that basis. 2 MR. STOKELY: I do not recall anything in the 3 statutes mentioning in-stream flows for fisheries. 4 MR. BRANDT: You testified earlier on a question I 5 asked that you basically are looking for more flows for 6 Trinity River, correct? 7 MR. STOKELY: We believe the fishery needs more 8 water. 9 MR. BRANDT: Okay. If the fishery needs more water, 10 what would -- would there be a problem with just taking out 11 both the dams at Trinity and at Lewiston to just -- I'm -- 12 to restore the natural flow completely, from the County's 13 perspective? 14 MR. WHITRIDGE: It would be -- there's several 15 problems. First, it isn't really one of the choices yet, 16 practically or legally. The environmental impact document 17 is not examining an alternative to take out the dams. They 18 considered it once and discarded it. 19 It would, perhaps, create more problems than one 20 poor little flood hazard reduction program project 21 specialist could handle in a short amount of time. But 22 also because the dams and the accumulated sediment have 23 been in place for three decades now, held in place by 24 riparian vegetation which is starting to become old growth 25 riparian vegetation, it will actually take some time for CAPITOL REPORTERS (916) 923-5447 4731 1 nature to return it to normal. 2 So in the long run, there's no doubt that that 3 would be the most natural and effective. It might not be 4 the most cost effective from everyone's point of view. And 5 it might not bring the desired results as quickly as 6 something short of taking out the dams in conjunction with 7 mechanical manipulation of the river channel. 8 MR. BRANDT: So the County would be opposed to 9 restoration, complete restoration of the natural flows by 10 taking out those dams; is that correct? 11 MR. STOKELY: I don't believe the Board of 12 Supervisors has taking an official position on removing or 13 not removing the dams. 14 MR. WHITRIDGE: The County would have to think about 15 that one for a while. 16 MR. MODINE: I asked Mr. Johnson whether there was a 17 possibility of that when I served on the Board before and 18 he said, "no way." 19 MR. BRANDT: Thank you. That's all. 20 MR. BIRMINGHAM: Excuse me? 21 C.O. STUBCHAER: Mr. Birmingham. 22 MR. BIRMINGHAM: The last remark was made by -- I'm 23 sorry I've forgotten -- a Member of the Board of 24 Supervisors. He was listed as a potential witness. I 25 wonder if he would like to take the oath and then affirm CAPITOL REPORTERS (916) 923-5447 4732 1 that last answer. 2 C.O. STUBCHAER: Mr. Modine, cross-examination does 3 not ordinarily incur policy statements. Your opening 4 statement was a policy statement. 5 MR. MODINE: I'm sorry. 6 C.O. STUBCHAER: So we will just remove those remarks 7 from the record. 8 MR. MODINE: Forgive me, forgive my lack of 9 protocol. 10 C.O. STUBCHAER: That's all right. Mr. Herrick. 11 ---oOo--- 12 CROSS-EXAMINATION OF TRINITY COUNTY 13 BY SOUTH DELTA WATER AGENCY 14 BY JOHN HERRICK 15 MR. HERRICK: Thank you, Mr. Chairman, Board Members. 16 John Herrick for South Delta Water Agency. Just one quick 17 question, most of mine have been covered. 18 I'd like to ask the panel if in their opinion an 19 in-stream use of water within the basin is within the 20 definition of in-basin uses, in your opinion? 21 MR. WHITRIDGE: It is in mine. 22 MR. STOKELY: Yes. 23 MR. HERRICK: And is that based on your review of the 24 relevant statutes dealing with area of origin and/or 25 watershed protection? CAPITOL REPORTERS (916) 923-5447 4733 1 MR. WHITRIDGE: Yes. In my case -- I couldn't tell 2 you which ones. In my case it's also based on my review of 3 public trust decisions, specifically the Audubon case. 4 MR. HERRICK: And is that -- that was my next 5 question. Does that include any review of court cases, 6 your understanding based on the review of court cases, not 7 just on review of statutes? 8 MR. WHITRIDGE: Yes. 9 MR. HERRICK: Is that based on your interaction with 10 other individuals in your experience in your current and 11 past jobs? 12 MR. WHITRIDGE: Yes, all of the above. 13 MR. HERRICK: Do you believe those interactions and 14 the information gleaned from those interactions are -- have 15 given you information that would be considered greater than 16 that that the average member of the public would have? 17 MR. WHITRIDGE: Well, I guess I need to ask you: By 18 who? But, again, I guess I would hope so. 19 MR. HERRICK: Thank you. That's all I have. 20 C.O. STUBCHAER: Thank you. Mr. Birmingham. 21 ---oOo--- 22 CROSS-EXAMINATION OF TRINITY COUNTY 23 BY WESTLANDS WATER DISTRICT 24 BY THOMAS BIRMINGHAM 25 MR. BIRMINGHAM: Good afternoon. My name is Tom CAPITOL REPORTERS (916) 923-5447 4734 1 Birmingham and as you might have guessed, I'm the attorney 2 for Westlands Water District. I'd like to ask you to take 3 a look at Page 1 of Exhibit 1, which is testimony submitted 4 by Trinity County; is that correct? 5 MR. WHITRIDGE: Is what correct, sir? Is Exhibit 1 6 our testimony? 7 MR. BIRMINGHAM: Trinity County Exhibit 1 is 8 testimony submitted by Trinity County; is that correct? 9 MR. WHITRIDGE: That's correct. 10 MR. BIRMINGHAM: And Trinity County Exhibit 1 is 11 incorporated into Trinity County Exhibit 15; is that 12 correct? 13 MR. WHITRIDGE: Yes. 14 MR. BIRMINGHAM: And Trinity County Exhibit 15 is 15 testimony submitted by Trinity County and is being offered 16 here today by the two of you; is that correct? 17 MR. WHITRIDGE: Yes. 18 MR. STOKELY: Yes. 19 MR. BIRMINGHAM: On page 1 of Exhibit 1 it states in 20 the second paragraph: 21 (Reading): 22 "Congressional intent regarding the place of use 23 for the Trinity River Division of water to 24 divert 704,000 acre-feet of water annually from 25 the Trinity River basin to be combined with CAPITOL REPORTERS (916) 923-5447 4735 1 other CVP water sources to irrigate 520,000 2 acres on the west side of the San Joaquin Valley 3 and 200,000 acres in the Sacramento Canal 4 service area." 5 Is that correct? 6 MR. WHITRIDGE: It's correct that it says it. And as 7 I mentioned this morning, it's not correct as a statement 8 of congressional intent. 9 MR. BIRMINGHAM: And you corrected that earlier this 10 morning during your oral summary; is that correct? 11 MR. WHITRIDGE: Tried to. 12 MR. BIRMINGHAM: Now, you would agree with me, 13 wouldn't you, that what congress intended when it enacted a 14 particular statute is a legal question? Would you agree 15 with that? 16 MR. STOKELY: Yes. 17 MR. WHITRIDGE: Yes. 18 MR. BIRMINGHAM: And so -- 19 MR. WHITRIDGE: And it may, also, be other types of 20 questions. 21 MR. BIRMINGHAM: But in part, it's a legal question? 22 MR. WHITRIDGE: Certainly. 23 MR. BIRMINGHAM: And so when you are expressing the 24 statement on Page 1 of Exhibit 1 you are stating a legal 25 opinion; is that correct? CAPITOL REPORTERS (916) 923-5447 4736 1 MR. WHITRIDGE: In my mind it is correct, but it goes 2 beyond that. In my mind congress, or this Board, or other 3 branches of this government have the right and 4 responsibility to communicate with their constituents and 5 citizens and to do so in language they can understand 6 without intermediaries such as -- of any sort, whether it 7 be lawyer, high priest, or anything else. 8 In my mind, the congressional reports that we 9 referenced and got this information out of is such an 10 attempt of congress to report to its employers, the people, 11 as plain and as clearly as possible and it did so. And you 12 need to be an expert in reading, perhaps more than law, to 13 understand what congress is reporting to the people. And 14 so I think it is a matter of law. And I think it's 15 probably quite a bit more than a matter of law. 16 MR. BIRMINGHAM: But, Mr. Whitridge, you would agree, 17 wouldn't you, that what congress intended when it enacted a 18 law is a legal question? 19 MR. WHITRIDGE: Certainly, it is a legal question. 20 MR. BIRMINGHAM: On Page 2 of Trinity Exhibit 1, it 21 states that -- this is in the middle of the page: 22 (Reading): 23 "A 1979 Interior Solicitor's opinion clarifies 24 the 1955 Act is a Federal Area of Origin Act, 25 because Trinity River basin in-stream flows have CAPITOL REPORTERS (916) 923-5447 4737 1 priority over out-of-basin diversions to the 2 CVP." 3 Did I accurately read that from page 2 of 4 Exhibit 1? 5 MR. WHITRIDGE: Sounded right to me. I wasn't 6 reading along with you, but, yes. 7 MR. BIRMINGHAM: Mr. Stokely, did I accurately read 8 that? 9 MR. STOKELY: I believe so, but I wasn't listening 10 very closely either. 11 MR. BIRMINGHAM: Well, I'd like both of you to listen 12 closely to this next question, if you will. 13 MR. STOKELY: Okay. 14 MR. BIRMINGHAM: The 1979 Solicitor's opinion 15 concerning the 1955 Act is a legal opinion; is that 16 correct? 17 MR. STOKELY: Yes. 18 MR. BIRMINGHAM: And your interpretation of that 1979 19 Solicitor's opinion is a legal opinion? 20 MR. WHITRIDGE: My interpretation is as an expert 21 reader. 22 MR. BIRMINGHAM: Page 3 of Exhibit 1 refers to the 23 requirements of Section 39 -- excuse me, let me restate 24 that. Page 3 of Exhibit 1 refers to the mandate of Section 25 3406(b)(23) of the Central Valley Improvement Act; is that CAPITOL REPORTERS (916) 923-5447 4738 1 correct? 2 MR. STOKELY: Yes. 3 MR. BIRMINGHAM: You would agree, wouldn't you, 4 Mr. Stokely, that the meaning of Section 3406(b)(23) is a 5 legal question? 6 MR. STOKELY: I think 3406(b)(23) is what it is, it 7 is an act of congress. 8 MR. BIRMINGHAM: And you would agree with me, 9 wouldn't you, that what congress intended when it enacted 10 Section 3406(b)(23) is a legal question? 11 MR. STOKELY: I'm not sure. 12 MR. BIRMINGHAM: Let me see if I can lay a 13 foundation. You referred earlier to litigation that was 14 filed in 1993 by Westlands Water District; is that correct? 15 MR. STOKELY: Yes. 16 MR. BIRMINGHAM: And is it correct that in 1997 there 17 was a proposal that was made by the Department of the 18 Interior to increase the minimum flows from -- the minimum 19 flows in Trinity River from 340,000 acre-feet up to 687,000 20 acre-feet? 21 MR. STOKELY: No, that's not correct. It was 423,000 22 acre-feet, I believe. 23 MR. BIRMINGHAM: Thank you for correcting me. 24 MR. STOKELY: It was 89 -- it was 340,000 plus 89,000 25 acre-feet. And I think -- CAPITOL REPORTERS (916) 923-5447 4739 1 MR. WHITRIDGE: I think you're both wrong. 2 MR. BIRMINGHAM: I think we're both wrong, too. 3 MR. STOKELY: It was more water. 4 MR. BIRMINGHAM: It was more water. And the easiest 5 thing for me to do, if I may, let me refer -- and this has 6 not been marked as an exhibit. So I'm going to just ask 7 you to refresh your recollection -- 8 MR. JACKSON: May I see it, Counsel? 9 MR. BIRMINGHAM: Yes. Excuse me, Mr. Jackson. 10 Is it correct that the Bureau proposed increasing 11 the flows in May of 1997 from 340,000 acre-feet per year to 12 427,000 acre-feet per year? 13 MR. STOKELY: Up to 427,000, not necessarily that, 14 depending on some of the monitoring required in the 15 document. 16 MR. BIRMINGHAM: And isn't it correct that the 17 authority under which the Department of the Interior 18 proposed to make those increased releases was authority 19 granted to the Department by Section 3406(b)(23) of the 20 Central Valley Project Improvement Act? 21 MR. STOKELY: Could you repeat that question? 22 MR. BIRMINGHAM: Yes. Isn't it correct that, in 23 part, the Department of the Interior in making the proposal 24 to increase flows from 340,000 acre-feet to 427,000 25 acre-feet -- or up to 427,000 acre-feet was Section CAPITOL REPORTERS (916) 923-5447 4740 1 3406(b)(23) of the Central Valley Project Improvement Act? 2 MR. STOKELY: Yes. 3 MR. BIRMINGHAM: And Section 3406(b)(23) of the 4 Central Valley Project Improvement Act was adopted by 5 congress, in part, to meet the Federal Government's trust 6 responsibility to the Hoopa Tribe; is that correct? 7 MR. STOKELY: 3406(b)23 directed the Secretary -- in 8 order to meet the fishery restoration goals of Public Law 9 98541 and to meet the fishery -- to meet the tribal fish -- 10 one moment. 11 MR. BIRMINGHAM: Do you have a copy of Section 12 3406(b)(23) with you? 13 MR. STOKELY: Yes. 14 MR. BIRMINGHAM: Doesn't Section 3406(b)(23) 15 specifically state that it is intended to meet the 16 government's trust responsibility to the Hoopa Tribe? 17 MR. STOKELY: Yes. In order to meet the Federal 18 trust responsibility to protect the fishery resources of 19 the Hoopa Valley Tribe and to meet the fishery restoration 20 goals of Public Law 98541 to provide water flows of 1992 21 through 1996 an in-stream release to the Trinity River of 22 not less of 340,000 acre-feet per year for the purposes of 23 fishery, restoration, propagation and maintenance. That is 24 our Exhibit 9. 25 MR. BIRMINGHAM: Now, in May of 1997 when the Bureau CAPITOL REPORTERS (916) 923-5447 4741 1 of Reclamation proposed to increase flows in the Trinity 2 River from 340,000 acre-feet up to 427,000 acre-feet, 3 relying on its authority under Section 3406(b)(23) of the 4 Central Valley Project Improvement Act, isn't it correct 5 that the San Luis and Delta-Mendota Water Authority filed a 6 complaint seeking injunctive relief in the United States 7 District Court for the Eastern District of California to 8 prevent the Department of Interior from increasing those 9 flows to 400 -- up to 427,000 acre-feet? 10 MR. STOKELY: That's my understanding. There may 11 have been some other plaintiffs, but I'm not sure who they 12 were. 13 MR. BIRMINGHAM: Okay. And isn't it correct that the 14 U.S. Court judge to whom that case was assigned disagreed 15 with the interpretation of Section 3406(b)(23) by the 16 Department of the Interior? 17 MR. STOKELY: I never saw any written decision by the 18 judge. I'm not sure if one was issued. It was my 19 understanding that the judge, Judge Oliver Wanger issued a 20 temporary restraining order, because Reclamation did not 21 comply properly with the NEPA, the National Environmental 22 Policy Act. That was my understanding of the reasoning for 23 the issuance of the TRO. 24 MR. BIRMINGHAM: But you would agree with me what 25 Section 3406(b)(23) means is a question of law; is that CAPITOL REPORTERS (916) 923-5447 4742 1 correct? 2 MR. STOKELY: 3406(b)(23) is a law. 3 MR. BIRMINGHAM: And the Department of the Interior's 4 authority under -- what authority is given the Department 5 of Interior by Section 3406(b)(23) is a legal question? 6 MR. JACKSON: This question has been asked and 7 answered a number of times. It's, essentially, repetitive. 8 If he's going to ask the legal question in regards to this 9 law as I counted it, it's the fifth time. 10 C.O. STUBCHAER: It has been asked, but there was no 11 clear answer to it to my recollection. And so, please, 12 answer the question to the best of your ability. 13 MR. WHITRIDGE: Does that mean anyone on the panel? 14 C.O. STUBCHAER: Yes, who is sworn. 15 MR. WHITRIDGE: Most of the people. As I attempted 16 to answer before, and I thought I did, questions about any 17 law in my mind are, of course, questions of law. But I 18 think they are also something more than questions of law. 19 If we assume that lawyers, for instance, or judges 20 are the only ones allowed or capable of reading laws, then 21 we cannot hold anyone that's not a lawyer or judge 22 accountable for obeying laws. I don't think that's what's 23 intended by laws. I think it's well intended, precisely 24 intended that the government in all of its branches would 25 report to, educate and illuminate its people. CAPITOL REPORTERS (916) 923-5447 4743 1 And, therefore, laws and judgments are, in fact, 2 communications to people which may be -- well, which 3 people, who aren't judges and lawyers, can, in fact, read. 4 So, yes, they are questions of law. They are not 5 restricted to being questions of law in my mind. And I 6 think I did say that at least once. 7 MR. BIRMINGHAM: And, Mr. Stokely, you would agree 8 that any authority that the Department of the Interior has 9 under Section 3406(b)(23) is a question of law? 10 MR. STOKELY: It's a question of law particularly 11 when it gets down to implementing it and somebody decides 12 to file for a temporary restraining order. 13 MR. BIRMINGHAM: Let me cut to the chase, if I may. 14 Throughout your testimony, Exhibit 1 and Exhibit 15, there 15 are opinions concerning the relationship between State 16 water law and Federal law as it pertains to the operation 17 of the Central Valley Project by the Bureau of Reclamation; 18 is that correct? 19 MR. STOKELY: Yes. 20 MR. WHITRIDGE: Yes. 21 MR. BIRMINGHAM: And there are opinions stated in 22 your testimony, Exhibit 1 and Exhibit 15, that talk about 23 the relationship between State water law and the 24 responsibility of the Secretary of the Interior to meet 25 trust responsibilities to the Indian tribes; is that CAPITOL REPORTERS (916) 923-5447 4744 1 correct? 2 MR. WHITRIDGE: Yep. 3 MR. STOKELY: Yes. 4 MR. BIRMINGHAM: Either of you -- and please, in any 5 of my questions if either of you feel like you'd like to 6 respond to them, I encourage both of you to do that. 7 Can either of you explain to me the meaning of 8 Section 8 of the Reclamation Act of 1902? 9 MR. WHITRIDGE: I believe -- it might be a little 10 easier if I had it to review. I recall that -- suggesting 11 that Federal law needs to be consistent with State 12 regulation. 13 MR. BIRMINGHAM: What is -- is that your 14 understanding, Mr. Stokely? 15 MR. STOKELY: It's my understanding that in relation 16 to water rights that go along with a Federal Reclamation 17 Project -- and I'm not sure if this is Section 8 or Section 18 7, so I'm not a lawyer. But if it's the one I'm thinking 19 of, that the water rights issued to Reclamation are 20 pertinent to the land which the water is applied to. 21 MR. BIRMINGHAM: Can either of you tell me the 22 Preemption Doctrine -- or explain for me the Preemption 23 Doctrine that was articulated by the Supreme Court in 24 California versus United States? 25 MR. JACKSON: This, certainly, calls for a legal CAPITOL REPORTERS (916) 923-5447 4745 1 conclusion and is not relevant at this point in this case. 2 MR. BIRMINGHAM: I'm not asking for purposes of 3 relevance to this case. I earlier asked for an opportunity 4 to voir dire these witnesses on their qualifications to 5 express the opinions that are contained in the documents. 6 I was denied that opportunity, but was told by the 7 Hearing Officer that I would have that opportunity during 8 cross-examination. And this is a perfectly acceptable 9 question for purposes of voir dire. 10 C.O. STUBCHAER: Yes. Mr. Del Piero is reminding me 11 that you need to specify which California versus United 12 States, or, vice versa, case you're asking about. 13 MR. BIRMINGHAM: I'm asking these witnesses for their 14 knowledge concerning the Preemption Doctrine that was 15 articulated by the Supreme Court in California versus the 16 United States as it relates to Section 8 of the Reclamation 17 Act. And if there's more than one California versus United 18 States, you're welcome to tell me that. 19 MR. WHITRIDGE: It seems to me that the argument that 20 had been advanced in that case that -- which had been, I 21 think, articulated in an earlier case regarding Fresno, 22 that the Federal government did not have -- the states had 23 no regulatory power over the Federal government. 24 And I believe in California versus U.S., I believe 25 in the case that you mentioned that Judge Rhinquest CAPITOL REPORTERS (916) 923-5447 4746 1 specifically disavowed that and pointed out that the 2 Federal Government, in the absence of clear congressional 3 direction to the contrary, it was obligated in its branches 4 to follow state water laws. 5 MR. BIRMINGHAM: Mr. Stokely, is that your 6 understanding of the California versus United States? 7 MR. STOKELY: My understanding of California versus 8 United States is that the states have primary authority to 9 implement water rights, except to the extent that there is 10 clear congressional direction to the contrary. 11 I might also add to my previous statement about 12 Section 8 of the Reclamation Act, that is: 13 (Reading): 14 "Nothing in this act shall be construed 15 as affecting, or intended to affect in any way 16 interfere with the laws of any state, or 17 territory relating to the control, 18 appropriation, use, or distribution of water 19 used in irrigation, or any vested right acquired 20 there under and Secretary of Interior in 21 carrying out such provision of the Act shall 22 proceed in conformity with such laws." 23 And I believe there's also a provision in the 24 CVPIA Section 3406(b) something to the effect that 25 Reclamation is to operate the project in conformance with CAPITOL REPORTERS (916) 923-5447 4747 1 direction by the State Water Resources Control Board. My 2 view of the CVPIA section is that it was a pretty good 3 state preemption. 4 MR. BIRMINGHAM: You've indicated in your written 5 testimony, Exhibit 15, that in Trinity County's view the 6 use of water on the west side -- on portions of the west 7 side of the San Joaquin Valley constitutes waste and 8 unreasonable use; is that correct? 9 MR. STOKELY: Yes. 10 MR. BIRMINGHAM: Can either of you, please, identify 11 for me the leading California cases that define "waste and 12 unreasonable use"? Can either of you identify -- 13 MR. WHITRIDGE: No. 14 MR. BIRMINGHAM: -- any reported decision of a 15 California court that discusses waste and unreasonable use? 16 MR. WHITRIDGE: Not me. 17 MR. STOKELY: No. 18 MR. BIRMINGHAM: Mr. Whitridge, earlier in response 19 to a question asked of you during cross-examination 20 concerning your understanding of the Area of Origin 21 Statutes, you said that your understanding was based on 22 reading court cases and summaries. 23 Can you, please, identify for me any reported 24 decision of a California court deciding issues of areas of 25 origin? CAPITOL REPORTERS (916) 923-5447 4748 1 MR. WHITRIDGE: Can't remember any names. 2 MR. JACKSON: Counsel, that question presupposes 3 there are some; is that right? 4 MR. WHITRIDGE: There are, certainly, discussions of 5 the area of origin rights in court decisions. And I have 6 not retained the names of those decisions. 7 MR. BIRMINGHAM: Trinity County Exhibit 24 is a 8 decision, or an opinion from the Regional Solicitor for the 9 Pacific South West Region and it's written to the Regional 10 Director of the Bureau of Reclamation for the mid pacific 11 region. 12 MR. WHITRIDGE: I agree. 13 MR. BIRMINGHAM: It states that -- on Page 1 there is 14 a handwritten notation "applies to Trinity, too." Can 15 either of you tell me who wrote that? 16 MR. STOKELY: I did. 17 MR. BIRMINGHAM: You did? 18 MR. STOKELY: (Witness nods.) 19 MR. BIRMINGHAM: And on Page 6 there's a handwritten 20 notation "Applicable to Trinity River." Did you write 21 that, Mr. Stokely? 22 MR. STOKELY: No. 23 MR. BIRMINGHAM: Can you tell me who wrote that? 24 MR. STOKELY: I'm not sure. It might have been Troy 25 Fletcher with the Yurok Tribe, Fisheries Department. CAPITOL REPORTERS (916) 923-5447 4749 1 MR. BIRMINGHAM: But you don't know who wrote it? 2 MR. STOKELY: No, I do not. 3 MR. BIRMINGHAM: Do you know who wrote it, 4 Mr. Whitridge? 5 MR. WHITRIDGE: No, I don't. 6 MR. BIRMINGHAM: Going back to the basis of your 7 understanding of Federal law. Again, this is a question 8 for either of you: 9 As it relates to the Federal trust 10 responsibilities to Indian tribes, what is the significance 11 of the Supreme Court's holding in Nevada versus United 12 States? 13 MR. STOKELY: I don't know. 14 MR. BIRMINGHAM: Mr. Whitridge, are you familiar with 15 Nevada versus United States? 16 MR. WHITRIDGE: Yes. I think it's referenced in 17 Exhibit 24. I have not memorized which cases are which, 18 but I would love if you would like to go through Exhibit 24 19 with me at greater length and the answer will become 20 apparent. It is referenced in this very exhibit that you 21 just brought up. 22 MR. BIRMINGHAM: Have you read Nevada versus United 23 States? 24 MR. WHITRIDGE: No, I haven't. 25 MR. BIRMINGHAM: So you can't explain the CAPITOL REPORTERS (916) 923-5447 4750 1 significance of Nevada versus United States as it relates 2 to the Federal Government's trust responsibility? 3 MR. WHITRIDGE: Not without remembering which case 4 that was, I'm sorry. And, in fact, people who aren't 5 lawyers sometimes read things and file them in their minds 6 a little differently than lawyers. However, the Interior 7 Solicitor is an attorney. And he does mention it in this 8 thing. And if you'd like to go through it I think that 9 would be great. And you'll get the answer that you want 10 that way. 11 MR. BIRMINGHAM: Now, you just responded to me by 12 saying: The Solicitor is an attorney; is that correct? 13 MR. WHITRIDGE: I did respond that way. 14 MR. BIRMINGHAM: Let me ask this question of you 15 both: If you had to make a decision and the significance 16 of the decision was hundreds of millions of dollars and 17 there were important questions of law that had to be 18 resolved in connection with the decision, wouldn't the two 19 of you consult with a lawyer who is knowledgeable in the 20 area of law that related to the decision that had to be 21 made? 22 MR. WHITRIDGE: I would. I can't speak for 23 Mr. Stokely. 24 MR. STOKELY: I would. 25 MR. BIRMINGHAM: So you would agree with me that in CAPITOL REPORTERS (916) 923-5447 4751 1 addressing the legal questions that the Board has to 2 grapple with in this proceeding, the Board would be better 3 served by relying upon the legal opinions of the lawyers 4 who have studied the law than the opinions that are 5 expressed in your testimony? 6 MR. WHITRIDGE: I don't think so. I think the Board, 7 certainly, must pay attention to lawyers. But it seems to 8 me that to agree with your statement would also be to agree 9 to say that only lawyers should be in congress making laws. 10 And, in fact, I believe the opposite from that. 11 And so, basically, what I would like to say, 12 something that I would like to have said during my 13 testimony is that: We're appearing here attempting to call 14 the Board's attention to certain things, some of them 15 written by, written under the supervision of, or otherwise 16 examined by attorneys. 17 We are -- and so all I'm trying to do here, 18 personally, is to come to the -- to my representatives and 19 say: Trinity County has collected a certain number of 20 pieces of information. And here's what we think they mean. 21 And would you, please, consider this. 22 And, actually, I wasn't even able to do that this 23 morning. And, yes, I'm offering my opinion as to what they 24 mean. I think that's my job as a -- thinking as a former 25 politician now, because there's an infinite, or at least a CAPITOL REPORTERS (916) 923-5447 4752 1 very immense amount of information out there. And I think 2 my right as a citizen and, perhaps, our responsibility as a 3 county is to call the Board's attention to certain pieces 4 of information. And that's about what I'm trying to do. 5 That's all I'm trying to do. 6 MR. BIRMINGHAM: But -- 7 MEMBER DEL PIERO: I like your insinuation, 8 Mr. Birmingham. You guys ought to pay attention to him. 9 C.O. STUBCHAER: While we're interrupted, I'd just 10 like to say, Mr. Whitridge, that Trinity County and all 11 other parties will have an opportunity to give us written 12 closing statements. And you can say what you wish and put 13 your arguments in there and call our attention to things in 14 there, too. 15 MR. WHITRIDGE: And I apologize on my part for not 16 following your rules. 17 C.O. STUBCHAER: We understand, as I said earlier, 18 that parties have different degrees of experience in 19 appearing before this Board. And we try and make 20 allowances for that. That's one reason why we are, 21 perhaps, more generous than a court would be in accepting 22 evidence into the record. 23 Mr. Birmingham. 24 MR. BIRMINGHAM: Mr. Whitridge, you have just 25 indicated that you are here expressing your opinion about CAPITOL REPORTERS (916) 923-5447 4753 1 the law, because you feel that it's your responsibility as 2 a citizen to come to the Board and express your opinion 3 about the law. Is that correct? 4 MR. WHITRIDGE: That's correct. I am here -- the 5 Board of Supervisors did ask me to come. So, perhaps, I'm 6 something else in addition to being a citizen, some 7 representative of the County, but it is basically correct. 8 MR. BIRMINGHAM: But you'd be the first to 9 acknowledge that you are not a legal expert? 10 MR. WHITRIDGE: Yes, I do acknowledge that. 11 MR. BIRMINGHAM: Okay. And, Mr. Stokely, you'd be 12 the first to acknowledge that you are not a legal expert? 13 MR. STOKELY: I'm not a lawyer. I'm not trained in 14 law, but I would say compared to the average citizen of 15 Trinity County I know a lot more about water law and tribal 16 trusts than most people. And so I don't know what makes me 17 an expert, but I have read a lot of this stuff. I 18 understand it, at least, in general terms. 19 MR. BIRMINGHAM: You understand it more than the 20 average citizen; is that correct? 21 MR. STOKELY: Yes. 22 MR. BIRMINGHAM: Do you think you understand it more 23 than me? 24 MR. STOKELY: No. 25 MR. BIRMINGHAM: Do you think you understand it more CAPITOL REPORTERS (916) 923-5447 4754 1 than Mr. Jackson? 2 MR. STOKELY: Absolutely not. 3 MR. BIRMINGHAM: Do you think that you have a better 4 understanding than people who have studied the law and who 5 practice in the area of water law? 6 MR. STOKELY: I do not have a better understanding 7 than those people. 8 MR. BIRMINGHAM: Now, it's quite evident, 9 Mr. Stokely, that you have read things on this subject. 10 You referred to the inchoate right of the County of Trinity 11 under the Area of Origin Statutes in an earlier response. 12 Is that correct? 13 MR. STOKELY: I believe so. 14 MR. STOKELY: Okay. 15 MR. BIRMINGHAM: Do you have an understanding of what 16 the term "inchoate" means? 17 MR. STOKELY: No. 18 MR. BIRMINGHAM: I wonder, Mr. Stubchaer, if this 19 would be an appropriate point to stop for the afternoon. 20 C.O. STUBCHAER: Mr. Birmingham, how much longer do 21 you think that your examination will take. 22 MR. BIRMINGHAM: Five, or six more hours. 23 C.O. STUBCHAER: Five, six more hours? 24 MR. BIRMINGHAM: Yes. 25 C.O. STUBCHAER: All right. CAPITOL REPORTERS (916) 923-5447 4755 1 C.O. CAFFREY: All of it, of course, will be 2 relevant. 3 MEMBER DEL PIERO: Remember about the prize. 4 C.O. STUBCHAER: All right. We will recess for the 5 day, then. And tomorrow we will resume -- we will not 6 resume this cross-examination, but we'll hear the direct 7 testimony of the parties as described by Mr. Jackson 8 earlier. 9 Staff have any comments they want to make before 10 we close the meeting? 11 MS. LEIDIGH: No. 12 C.O. STUBCHAER: Board Members? Okay, we are 13 adjourned. 14 (The proceedings concluded at 3:58 p.m.) 15 ---oOo--- 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 4756 1 REPORTER'S_CERTIFICATE __________ ___________ 2 3 STATE OF CALIFORNIA ) ) ss. 4 COUNTY OF SACRAMENTO ) 5 I, MARY R. GALLAGHER, certify that I was the 6 Official Court Reporter for the proceedings named herein, 7 and that as such reporter I reported in verbatim shorthand 8 writing those proceedings; that I thereafter caused my 9 shorthand writing to be reduced to typewriting, and the 10 pages numbered 4546 through 4756 herein constitute a 11 complete, true and correct record of the proceedings. 12 IN WITNESS WHEREOF, I have subscribed this 13 certificate at Sacramento, California, on this 15th day of 14 October, 1998. 15 16 ________________________________ MARY R. GALLAGHER, CSR #10749 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 4757