STATE WATER RESOURCES CONTROL BOARD PUBLIC HEARING 1998 BAY-DELTA WATER RIGHTS HEARING HELD AT 901 P STREET SACRAMENTO, CALIFORNIA TUESDAY, OCTOBER 20, 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 4967 1 REPRESENTATIVES 2 PRINCETON CODORA GLENN IRRIGATION DISTRICT, et al. 3 FROST, DRUP & ATLAS 4 134 West Sycamore STreet Willows, California 95988 5 BY: J. MARK ATLAS, ESQ. 6 JOINT WATER DISTRICTS: 7 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 8 Oroville, California 95965 BY: WILLIAM H. BABER, III, ESQ. 9 CALIFORNIA SPORTFISHING PROTECTION ALLIANCE: 10 ROBERT J. BAIOCCHI 11 P.O. Box 357 Quincy, California 95971 12 BELLA VISTA WATER DISTRICT: 13 BRUCE L. BELTON, ESQ. 14 2525 Park Marina Drive, Suite 102 Redding, California 96001 15 WESTLANDS WATER DISTRICT: 16 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 17 400 Capitol Mall, 27th Floor Sacramento, California 95814 18 BY: THOMAS W. BIRMINGHAM, ESQ. 19 THE BAY INSTITUTE OF SAN FRANCISCO: 20 GRAY BOBKER 55 Shaver Street, Suite 330 21 San Rafael, California 94901 22 CITY OF ANTIOCH, et al.: 23 FREDERICK BOLD, JR., ESQ. 1201 California Street, Suite 1303 24 San Francisco, California 94109 25 CAPITOL REPORTERS (916) 923-5447 4968 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 4969 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 4970 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 4971 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 4972 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 4973 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 4974 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 4975 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 4976 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 4977 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 4978 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 4979 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 4980 1 I N D E X 2 ---oOo--- 3 4 PAGE 5 OPENING OF HEARING 4982 6 AFTERNOON SESSION 5068 7 END OF PROCEEDINGS 5179 8 9 CROSS-EXAMINATION OF TRINITY COUNTY: 10 THOMAS BIRMINGHAM 4984 11 CASE IN CHIEF: 12 SAN LUIS DELTA-MENDOTA WATER AUTHORITY 5088 13 PANEL: 14 JOSEPH C. MCGAHAN 15 CROSS-EXAMINATION OF SAN LUIS DELTA-MENDOTA WATER 16 AUTHORITY: 17 PAUL MINASIAN 5106 MICHAEL JACKSON 5112 18 JOHN HERRICK 5120 DANTE JOHN NOMELLINI 5159 19 20 ---oOo--- 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 4981 1 TUESDAY, OCTOBER 20, 1998, 9:00 A.M. 2 SACRAMENTO, CALIFORNIA 3 ---oOo--- 4 C.O. CAFFREY: I know Mr. Jackson is here. Are you 5 ready, Mr. Jackson? 6 MR. JACKSON: Yes, we are. 7 C.O. CAFFREY: It's nice to have you back and we hope 8 your trip was successful. 9 MR. JACKSON: Seemed to be. 10 C.O. CAFFREY: Good. 11 MR. BIRMINGHAM: In fact, I earlier today 12 congratulated Mr. Jackson, from all the reports I read in 13 the newspaper, his trip, apparently, was very successful. 14 C.O. CAFFREY: Very good, Mr. Jackson. 15 MR. JACKSON: It was and I appreciate everybody 16 giving us the opportunity to do it. That was above and 17 beyond the usual courtesies extended. And I do want to 18 thank you very much. 19 MEMBER FORSTER: I want to know what you were doing, 20 Mr. Jackson. 21 C.O. CAFFREY: Let's go off the record for a minute. 22 (Off the record from 9:03 a.m. to 9:05 a.m.) 23 C.O. CAFFREY: We're back on the record now. Thank 24 you, Mary. 25 Let me just explain where we are a little bit. CAPITOL REPORTERS (916) 923-5447 4982 1 Most of you know, but we were in the middle of the 2 cross-examination of the Stockton East -- 3 C.O. STUBCHAER: Trinity. 4 C.O. CAFFREY: I'm talking where we were in the last 5 meeting. 6 C.O. STUBCHAER: I'm sorry. 7 C.O. CAFFREY: The Stockton East adversarial 8 witnesses. We did not finish that and we'll get back to 9 that in the relatively near future. So we're going to 10 resume this morning with Mr. Stubchaer as Hearing Officer 11 to complete your case in chief, Mr. Jackson. 12 And then after we finish that we'll go to the 13 Department of Interior, San Luis and Delta-Mendota Water 14 Authority and then back to Stockton East Water District to 15 complete their case in chief. And then San Joaquin River 16 Group Authority and then San Joaquin County. So I will 17 turn the matter over now to the capable hands of 18 Mr. Stubchaer. 19 C.O. STUBCHAER: Good morning. Mr. Birmingham, you 20 were in the middle of your cross-examination. We left this 21 panel last week. And you had asked for -- I forget what it 22 was, four to six hours to complete your cross-examination. 23 We're inclined to give you one hour and then at the end of 24 one hour let you explain to us why you need more time if 25 that's satisfactory. And I trust you have the transcript CAPITOL REPORTERS (916) 923-5447 4983 1 by now and have been able to prepare. 2 MR. BIRMINGHAM: I do have a copy of the transcript. 3 Having the transcript did help in my preparation. 4 C.O. STUBCHAER: Good morning to the panel and 5 Mr. Jackson. Are you ready? 6 MR. JACKSON: Yes. 7 C.O. STUBCHAER: Please, proceed. 8 ---oOo--- 9 CROSS-EXAMINATION OF TRINITY COUNTY 10 BY WESTLANDS WATER DISTRICT 11 BY THOMAS BIRMINGHAM 12 MR. BIRMINGHAM: Mr. Stokely, I'd like to explore 13 further your educational background. You previously 14 testified that you graduated in 1979 with a Bachelor's of 15 Science degree in environmental studies and biology from 16 the University of California at Santa Cruz. 17 MR. STOKELY: That's incorrect. It was a Bachelor's 18 of Arts degree. I said I had a Bachelor's degree. I did 19 not say whether it was art or science. 20 MR. BIRMINGHAM: Then, you have a Bachelor's of Arts 21 degree in environmental studies and biology, which was 22 awarded you from the University of California at Santa Cruz 23 in 1979? 24 MR. STOKELY: Yes. 25 MR. BIRMINGHAM: And when you were obtaining your CAPITOL REPORTERS (916) 923-5447 4984 1 Bachelor's of Arts degree in environmental studies and 2 biology, you testified that your primary focus was on 3 plants and biogeography; is that correct? 4 MR. STOKELY: I said it was primarily on plants. And 5 I took a course in field biogeography. Actually, it was a 6 general biology degree. And the environmental study's 7 major focused on natural history, but I did take a personal 8 interest in plants although natural history is somewhat 9 broader than just plants. 10 MR. BIRMINGHAM: Mr. Stokely, I'm handing to you a 11 copy of the transcript of the hearing that was conducted 12 here on October 14, 1998. And I'd ask you to turn to page 13 4680 of the transcript. 14 MR. STOKELY: Yes. 15 MR. BIRMINGHAM: Beginning on Line 10 Mr. Sexton 16 asked you the following: 17 (Reading): 18 "Okay. In your studies at UC Santa Cruz in the 19 subject of biology, when you say you graduated 20 with a degree in biology, as I understand, a 21 degree of biology can take different forms. Can 22 you give us," excuse me, "can you kind of give 23 me an idea of what kind of studies that you 24 undertook? And then we'll take off on -- there 25 -- on what kind of work you have done in those CAPITOL REPORTERS (916) 923-5447 4985 1 areas since then." 2 And you responded: 3 (Reading): 4 "Sure. Actually, I primarily focused on plants, 5 biogeography types of issues. I had tried to 6 get into some oceanography type of 7 classes, but I never seemed to be able to get 8 there. So I did take some marine biology 9 courses, land-use planning and biology. 10 And, generally, that was a general biology focus 11 rather than specific. Although, it was probably 12 more slanted towards plants biology." 13 Do you recall being asked that question and giving 14 that answer? 15 MR. STOKELY: Yes. 16 MR. BIRMINGHAM: When you were obtaining your degree 17 in biology and environmental studies at the University of 18 California at Santa Cruz, did you take any courses in 19 ichthyology? 20 MR. STOKELY: No. And, actually, when I had said in 21 my testimony that I tried to get into some oceanography 22 type of classes, I believe, actually, it was fisheries 23 biology that I tried to get into. I did take some -- an 24 oceanography class. And I took marine biology. And I took 25 algae, fungi and likens which actually was quite a bit CAPITOL REPORTERS (916) 923-5447 4986 1 related to ocean algae, which is kelp. But I did not take 2 ichthyology to the best of my remembrance. 3 MR. BIRMINGHAM: So from your testimony am I correct 4 to assume that your study of biology was slanted towards 5 plant biology? 6 MR. STOKELY: Well, that's what I had said, but now 7 that I think about it, it was actually my environmental 8 studies course work that was more related to plants, plant 9 biology. But my biology courses, in general, were more of 10 a general biology nature. 11 MR. BIRMINGHAM: So the testimony that you gave on 12 the 14th of October when you said that your studies were, 13 and I will quote from Line 24 and 25 of page 4680, 14 (Reading): 15 "It was probably more slanted towards plant 16 biology." 17 That was an incorrect statement? 18 MR. STOKELY: I don't know if it was necessarily 19 incorrect, but I was -- I should have been referring more 20 to my environmental studies degree rather than my biology 21 degree. 22 MR. BIRMINGHAM: You testified last Wednesday that 23 you had previously visited an area called the New Idria 24 Serpentine Barrens. 25 MR. STOKELY: Yes. CAPITOL REPORTERS (916) 923-5447 4987 1 MR. BIRMINGHAM: And you testified that is an area 2 just to the west of Westlands Water District. 3 MR. STOKELY: That's my understanding. 4 MR. BIRMINGHAM: How far west of Westlands Water 5 District is the New Idria Serpentine Barrens? 6 MR. STOKELY: I don't know. 7 MR. BIRMINGHAM: You testified that your visits to 8 the New Idria Serpentine Barrens was part of an 9 undergraduate course called field biogeography. 10 MR. STOKELY: Correct. 11 MR. BIRMINGHAM: And that as part of that class you 12 studied unique plants that live in areas with soils that 13 are termed "poisonous"? 14 MR. STOKELY: Yes. 15 MR. BIRMINGHAM: You meant "poisonous" in the sense 16 the soils contain heavy metals; is that correct? 17 MR. STOKELY: They contain heavy metals. They also 18 contained different amounts of various constituents in the 19 soil where the balance is different from so-called normal 20 soils. 21 MR. BIRMINGHAM: But you can't remember if the plants 22 you studied when you went to the New Idria Serpentine 23 Barrens were plants that were tolerant of selenium? 24 MR. STOKELY: No, I can't recall that. It was over 25 20 years ago. CAPITOL REPORTERS (916) 923-5447 4988 1 MR. BIRMINGHAM: During your study of biogeography, 2 did you take any courses that involved the effect of 3 selenium on growing plants? 4 MR. STOKELY: Not that I recall. 5 MR. BIRMINGHAM: Last week in response to a question 6 by Mr. Sexton about studying the movement of selenium in 7 soils you testified as follows, and here, Mr. Stokely, I'm 8 referring to Page4693 of the transcript. And let me start 9 by reading the question on Line 6. 10 (Reading): 11 "Mr. Sexton: In your studies of biology you 12 mention some studies involving geology. Have 13 you done any studies relating to, for example, 14 the movement of selenium in soils, or in 15 water bodies?" 16 "Mr. Stokely: I have not done any research. 17 I've primarily read the exhibit which we have 18 submitted to you. I also read part of the 19 Rainbow Report, Staff Exhibit 147." 20 Do you recall being asked that question and 21 providing that answer? 22 MR. STOKELY: Yes. 23 MR. BIRMINGHAM: Have you taken any courses related 24 to soils classification? 25 MR. STOKELY: Yes. CAPITOL REPORTERS (916) 923-5447 4989 1 MR. BIRMINGHAM: What were those courses? 2 MR. STOKELY: I do not recall the name of the course, 3 but I do remember at UC Santa Cruz we had a field 4 experiment or test, so to speak, where we had to go out in 5 the field, take samples of the soil and try to classify it 6 based on the information that we had. And I remember my 7 partner and I got the answer correct, but I cannot recall 8 the name of the course. 9 MR. BIRMINGHAM: Do you recall when you took the 10 course? 11 MR. STOKELY: No, but it was probably sometime in the 12 1970's. 13 MR. BIRMINGHAM: Okay. Do you recall how many units, 14 undergraduate units you received for courses that involved 15 soils classification? 16 MR. STOKELY: I do not recall. 17 MR. BIRMINGHAM: Did you take any other courses that 18 involved soils science? 19 MR. STOKELY: I took a course called the earth and 20 land-use planning by Gary Griggs. And we primarily studied 21 the relationship between humans and hazardous geologic 22 formations, or occurrences such as tsunamis, landslides. 23 It was a very general course, though. 24 MR. BIRMINGHAM: Since graduating from college -- and 25 I believe you testified that you do not have a graduate CAPITOL REPORTERS (916) 923-5447 4990 1 degree? 2 MR. STOKELY: Correct. 3 MR. BIRMINGHAM: Have you taken any graduate courses? 4 MR. STOKELY: Not to the best of my knowledge. I 5 have taken some continuing education courses from UC Davis 6 primarily related to the California Environmental Quality 7 Act, land-use planning. And as I mentioned previously, of 8 course, on the Delta. 9 MR. BIRMINGHAM: In any of the continuing education 10 courses that you have taken, have you taken a class that 11 involved soil science? 12 MR. STOKELY: Not to my recollection. 13 MR. BIRMINGHAM: Have you worked on any project that 14 required that you analyze composition of soil? 15 MR. STOKELY: Yes. In my work as a land-use planner 16 for Trinity County we do have sensitive soils in Trinity 17 County, in particular the decomposed granite soils which 18 cause erosional problems. And we do also have landslide 19 problems in Trinity County. So I have reviewed projects in 20 accordance with sensitive soils and the possibility of mass 21 movement. 22 MR. BIRMINGHAM: Now, in your work when you reviewed 23 the projects involving sensitive soils and mass movement, 24 did you personally go out to collect soil samples and 25 analyze those soil samples to determine their composition? CAPITOL REPORTERS (916) 923-5447 4991 1 MR. STOKELY: No. We relied on information from 2 other experts, primarily government reports and studies 3 such as the former Conservation Service, or the California 4 Department of Water Resources, which has done extensive 5 investigations in the Trinity River basin. 6 MR. BIRMINGHAM: Mr. Stokely, then you would agree 7 with me, wouldn't you, that you are not a soil scientist? 8 MR. STOKELY: Correct. 9 MR. BIRMINGHAM: Mr. Stokely, you testified that 10 you've been involved in the preparation of two negative 11 declarations while employed by the County of Trinity 12 Planning Department; is that correct? 13 MR. STOKELY: I have been involved in the preparation 14 of numerous negative declarations, but the ones I was 15 referring to were related to water rights on Hayfork Creek 16 and its tributaries. 17 MR. BIRMINGHAM: And in addition to the two negative 18 declarations that you referred to, can you estimate how 19 many environmental review documents you've worked on? 20 MR. STOKELY: It's probably less than a hundred. 21 And that would include documents that I have worked on as 22 well as documents that I've reviewed and provided comments 23 to other agencies. 24 MR. BIRMINGHAM: And in connection with those 25 documents, the preparation of the documents in which you CAPITOL REPORTERS (916) 923-5447 4992 1 were involved, did you or the County of Trinity retain 2 consultants to help you prepare the analysis? 3 MR. STOKELY: Generally, not. However, the one 4 document I am working on now that I have been for the last 5 couple years, the Trinity River Main Stem Fishery 6 Restoration Environmental Impact Statement and Report, the 7 consulting firm CH2M Hill has been retained to be the 8 principal consultant to write the report. And they, of 9 course, have experts in hydrology, soils, fisheries, a 10 number of issue areas. 11 MR. BIRMINGHAM: And so, then, you led right into my 12 next question. Consultants that typically hirer for the 13 preparation of environmental review documents include 14 geologists, soil scientists and hydrologists? 15 MR. STOKELY: Generally speaking, yes. Although, 16 actually, in the case of our EIS/EIR we do have an 17 individual from the Fish and Wildlife Service who's writing 18 up the geomorphology section. She's a fisheries biologist. 19 But since no one else stepped up to the plate, she's doing 20 that part of the report. 21 MR. BIRMINGHAM: Now, am I correct in understanding 22 that the Hoopa Indian tribe has obtained a geomorphologist? 23 MR. STOKELY: That's correct. Dr. Bill Trush and 24 Dr. Scott McBain. 25 MR. BIRMINGHAM: Doctors McBain and Trush are CAPITOL REPORTERS (916) 923-5447 4993 1 professors at the California State University, Humboldt; is 2 that correct? 3 MR. STOKELY: I believe Dr. Trush is. I'm not sure 4 about Dr. McBain. 5 MR. BIRMINGHAM: But Doctors McBain and Trush are 6 experts in geomorphology? 7 MR. STOKELY: Yes. 8 MR. BIRMINGHAM: Now, I believe in your testimony 9 last week you indicated that the Hoopa Tribe was involved 10 in the preparation of the main stem Trinity fish 11 restoration EIR/EIS? 12 MR. STOKELY: That's correct. The four leading 13 agencies are Trinity County as the CEQA lead, Hoopa Valley 14 Tribe, U.S. Fish and Wildlife Service and U.S. Bureau of 15 Reclamation as the NEPA co-lead agencies along with a 16 number of trustee responsible and cooperating agencies. 17 MR. BIRMINGHAM: Now, in connection with the 18 preparation of environmental review documents, generally, 19 consultants are responsible for conducting the technical 20 analyses included in the environmental review documents; is 21 that correct? 22 MR. STOKELY: They are generally responsible for 23 that. However, we as the co-leads have the ultimate 24 responsibility to ensure the accuracy of that information 25 and we do find mistakes. CAPITOL REPORTERS (916) 923-5447 4994 1 MR. BIRMINGHAM: Last week when you were present 2 during the testimony of Dr. Brown, you heard an exchange 3 between Dr. Brown and Board Member Brown concerning 4 leaching ratios. Do you recall that? 5 MR. STOKELY: I recall that, yes. 6 MR. BIRMINGHAM: Can you explain to me a leaching 7 ratio? 8 MR. STOKELY: No, I can't. I just basically 9 understand that in soils with imported water, particularly 10 on the west side of the San Joaquin Valley where we are 11 high in salts, that the imported water contains a certain 12 amount of salt. And the soil itself also has a certain 13 amount of salt. 14 And in addition evapotranspiration brings some of 15 the salt closer to the surface. And, therefore, there is a 16 need for a certain amount of water to mobilize the salt out 17 of the soil and -- flush it out of the soil so crops can 18 continue to be grown. But I do not understand all the 19 specifics of the ratios that were discussed. 20 MR. BIRMINGHAM: So you can't provide a technical 21 explanation for us, or the Board concerning leaching 22 ratios? 23 MR. STOKELY: No. Just the layman's view that it 24 takes water to leach the salt out of those soils in order 25 to grow crops and to continue to be able to grow crops as CAPITOL REPORTERS (916) 923-5447 4995 1 imported water is applied. 2 MR. BIRMINGHAM: I'm going back to your education. 3 Since graduating from college, have you taken any formal 4 continuing education courses on fish biology? 5 MR. STOKELY: No. But I've been to an awful lot of 6 meetings where details of fishery biology have been 7 discussed. I was a peer reviewer for the peer review draft 8 of the Trinity River flow evaluation report that came out 9 in January of this year. And I have acquired a certain 10 amount of knowledge of fishery biology by attending a 11 number of meetings as a result of my work with the Trinity 12 River task force. 13 MR. BIRMINGHAM: You testified that you were involved 14 in the development of a daily temperature model for 15 Lewiston Reservoir? 16 MR. STOKELY: Correct. 17 MR. BIRMINGHAM: I believe you testified, and I'd 18 like to quote, that you supervised the development of that 19 model; is that correct? 20 MR. STOKELY: Yeah. I was, actually, the contract 21 administrator. Trinity County had a contract with Jones 22 and Stokes and I was the contract administrator. So I 23 dealt with Dr. Brown, who was the principal consultant with 24 Jones and Stokes, developing the model. And it was a 25 pleasure to work with Dr. Brown on that project. He's a CAPITOL REPORTERS (916) 923-5447 4996 1 very bright man. 2 MR. BIRMINGHAM: Mr. Stokely, I'd ask you to turn to 3 page 4686 of the transcript which you have in front of you. 4 And I'd ask that you look at Line 22. Actually, let's 5 start on Line 20. I believe you stated beginning at Line 6 20: 7 (Reading): 8 "Under that program, probably close to a million 9 dollars, including one project I might add 10 supervising the development of a daily 11 temperature model for Lewiston Reservoir, which 12 was actually prepared by Dr. Russ Brown who was 13 the previous expert witness on the panel before 14 us." 15 Do you recall making that statement? 16 MR. STOKELY: I do. The model itself did not cost a 17 million dollars. The statement may be somewhat out of 18 context. The entire grant program has probably spent a 19 million dollars. This particular project I believe was 20 about $63,000. 21 MR. BIRMINGHAM: Now, the model that was developed 22 you testified was developed by Dr. Russell Brown of Jones 23 and Stokes? 24 MR. STOKELY: Correct. 25 MR. BIRMINGHAM: And when you used the term CAPITOL REPORTERS (916) 923-5447 4997 1 "supervise," you didn't mean that you provide direction to 2 Dr. Brown on how Dr. Brown should develop the temperature 3 model? 4 MR. STOKELY: Correct. I just was overall contract 5 administrator. That would have been probably the more 6 appropriate term to use rather than "supervise." 7 MR. BIRMINGHAM: And it was Dr. Brown, or people 8 working under his direction, that exercised professional 9 judgment and expertise in preparing the model? 10 MR. STOKELY: Correct. 11 MR. BIRMINGHAM: And, again, when you used the term 12 "supervised," you meant that you were the administer of the 13 contract pursuant to which Dr. Brown prepared the model? 14 MR. STOKELY: Correct. 15 MR. BIRMINGHAM: You testified about the development 16 of temperature models on the Sacramento and San Joaquin 17 Rivers. Do you recall that testimony? 18 MR. STOKELY: If I said San Joaquin, I should have 19 said Feather. 20 MR. BIRMINGHAM: I beg your pardon. You did say 21 Feather and I misspoke. You testified about temperature 22 models on the Sacramento and Feather Rivers? 23 MR. STOKELY: Correct. 24 MR. BIRMINGHAM: The Sacramento River temperature 25 modeling project, who conducted that work? CAPITOL REPORTERS (916) 923-5447 4998 1 MR. STOKELY: Trinity County had a contract with the 2 State Water Board a 205j Clean Water Act contract. And 3 then Trinity County in turn subcontracted to the UC Davis 4 Department of Civil and Environmental Engineering, 5 Dr. Gerald Orlob was the principal person associated with 6 the university who oversaw the project. 7 However, Mike Deas, spelled D-E-A-S, who is a 8 graduate student there at the Department of Civil and 9 Environmental Engineering, he did a substantial amount of 10 the work. Although, actually, there were other individuals 11 involved who came in and out of the project. 12 In addition to that, Mr. Harry Rectenwald with the 13 Department of Fish and Game administered some funding that 14 came through the Department of Fish and Game to act as the 15 non-Federal match to the 205j Program. And Mr. Rectenwald 16 also administered those funds to go along with the work. 17 So, again, I provided an overall contract 18 administrator's role and overall project oversight, but the 19 specifics of the modeling was performed primarily by the UC 20 Davis students and staff. 21 MR. BIRMINGHAM: So Mr. Deas, who was working on his 22 Ph.D. under Dr. Orlob, performed the work? 23 MR. STOKELY: He finished the work. Actually, 24 Dr. Gabriella Myers started some of the work. There was 25 also a number of individuals Jamie -- I can't remember her CAPITOL REPORTERS (916) 923-5447 4999 1 name, several individuals who were doing their, I believe, 2 doctorate work, maybe some Master's work, were working 3 under this project. So that Mike would be the principal 4 person sort of wrapping it up at the end. 5 MR. BIRMINGHAM: Now, it was the people from the 6 University of California at Davis, Dr. Orlob, Mr. Deas and 7 the other people that you mentioned, that were responsible 8 for exercising their professional judgment and expertise in 9 the development of the Sacramento River temperature model; 10 is that correct? 11 MR. STOKELY: Correct. 12 MR. BIRMINGHAM: And, again, you administered the 13 contract along with Mr. -- 14 MR. STOKELY: Rectenwald. 15 MR. BIRMINGHAM: -- Rectenwald under which the grant 16 funds were expended? 17 MR. STOKELY: Correct. 18 MR. BIRMINGHAM: Now, I'd like to turn for a moment 19 to the Feather River temperature model. I believe you 20 testified last week that that model was also prepared by 21 Dr. Orlob and some of his graduate students? 22 MR. STOKELY: Correct. 23 MR. BIRMINGHAM: In connection with the Feather River 24 model, is this correct that Dr. Orlob and his students were 25 responsible for exercising their professional judgment and CAPITOL REPORTERS (916) 923-5447 5000 1 expertise in the development of that model? 2 MR. STOKELY: Yes. 3 MR. BIRMINGHAM: And, again, you administered the 4 contract under which the model was being prepared? 5 MR. STOKELY: Yes. And I did in the process acquire, 6 at least, some knowledge of the modeling exercises that 7 they go through to get to where they need to be. 8 MR. BIRMINGHAM: Now, Dr. Brown and Dr. Orlob are 9 engineers; is that correct? 10 MR. STOKELY: Yes. So is Mike Deas. 11 MR. BIRMINGHAM: While you were an undergraduate, did 12 you take any courses in engineering? 13 MR. STOKELY: No. 14 MR. BIRMINGHAM: Did you take any courses in 15 hydrology? 16 MR. STOKELY: Not that I recall specifically. 17 MR. BIRMINGHAM: Mr. Whitridge, sorry to interrupt 18 your nap, but now I believe that you testified that while 19 you were an undergraduate at Yale you didn't take any of 20 the ologies? 21 MR. WHITRIDGE: Correct. 22 MR. BIRMINGHAM: So you didn't take any of the 23 engineering courses? 24 MR. WHITRIDGE: Correct. 25 MR. BIRMINGHAM: Nor did you take any hydrology CAPITOL REPORTERS (916) 923-5447 5001 1 courses? 2 MR. WHITRIDGE: That's right. 3 MR. BIRMINGHAM: Now, this is a question for either 4 of you: Have you taken any courses in engineering or 5 hydrology since you graduated from college, Mr. Stokely, or 6 since you left Yale, Mr. Whitridge? 7 MR. STOKELY: No. 8 MR. WHITRIDGE: No. 9 MR. BIRMINGHAM: Have either of you ever performed an 10 analysis using either the Trinity River temperature model, 11 the Sacramento River temperature model, or the Feather 12 River temperature model? 13 MR. STOKELY: I have not, but I have reviewed draft 14 reports on the Trinity Lake temperature model and raised 15 questions which resulted in changing some of the analyses 16 that were performed, but I have not used the models 17 myself -- 18 MR. BIRMINGHAM: Mr. -- 19 MR. STOKELY: -- on the list. 20 MR. BIRMINGHAM: Mr. Whitridge, have you ever used 21 either one of these three models to prepare an analysis? 22 MR. WHITRIDGE: No. 23 MR. BIRMINGHAM: May I have a moment, Mr. Stubchaer? 24 C.O. STUBCHAER: Yes. We'll go off the record. 25 (Off the record from 9:36 a.m. to 9:37 a.m.) CAPITOL REPORTERS (916) 923-5447 5002 1 C.O. STUBCHAER: Back on the record. 2 MR. BIRMINGHAM: I've just handed Mr. Jackson a 3 document, or sheet, which has been marked as Westlands' 4 Exhibit 90. May I publish that? 5 C.O. STUBCHAER: Yes. 6 MR. BIRMINGHAM: Mr. Stokely, I have just put up on 7 the overhead an equation on a sheet which has been marked 8 as Westlands' Exhibit 90. And I wonder if you could, 9 please, tell me what is represented by that equation? 10 MR. STOKELY: I do not know. 11 MR. BIRMINGHAM: Mr. Whitridge, can you tell me what 12 is represented by the equation shown on Westlands' Exhibit 13 90? 14 MR. WHITRIDGE: Not honestly. 15 MR. BIRMINGHAM: Mr. Whitridge -- or excuse me, 16 Mr. Stokely, I'm going to hand to you a textbook entitled 17 "Applied Hydraulics and Engineering" by Henry M. Morris, 18 2nd Edition. And specifically I'm going to show to you 19 page 132 and ask you to look at the bottom of page 132. 20 Mr. Stokely, does the textbook which I have just 21 handed to you at page 132 identify the exhibit which has 22 been marked for identification as Westlands' Exhibit 90 as 23 the Manning equation? 24 MR. STOKELY: Yes, it does. 25 MR. BIRMINGHAM: Can you, please, explain to me the CAPITOL REPORTERS (916) 923-5447 5003 1 Manning equation? 2 MR. STOKELY: No. It sounds familiar, but I don't 3 know what it means. 4 MR. BIRMINGHAM: Mr. Whitridge, can you, please, 5 explain to me the Manning equation? 6 MR. WHITRIDGE: No. 7 MR. BIRMINGHAM: I'm handing to Mr. Jackson a sheet 8 which has been marked as Westlands' Exhibit '91. May I 9 publish it? 10 C.O. STUBCHAER: May I see it? 11 MR. BIRMINGHAM: I provided 20 copies to the Board. 12 And I provided, I hope, what will be enough copies for the 13 audience. 14 C.O. STUBCHAER: Yes. 15 MR. BIRMINGHAM: Thank you. 16 Mr. Stokely, or Mr. Whitridge, either one of you, 17 I'm showing to you on the overhead a hypothetical 20-year 18 record of annual runoff at a proposed dam site with values 19 in thousands of acre-feet, which has been marked for 20 identification as Westlands' Exhibit 91. 21 I'd ask you to take a moment to review the 22 hypothetical hydrology that's been marked for 23 identification as Westlands' Exhibit 91. And after you've 24 had an opportunity to review it, please, let me know. 25 MR. JACKSON: And I'm going to object to the question CAPITOL REPORTERS (916) 923-5447 5004 1 on the ground of relevance. 2 C.O. STUBCHAER: Comments, Mr. Birmingham? 3 MR. BIRMINGHAM: I will tie up the relevance very 4 quickly, Mr. Stubchaer. I'm asking -- I'm conducting what 5 I otherwise would have done in voir dire during the 6 cross-examination, which I believe you indicated I would be 7 permitted to do. 8 Have you had an opportunity to review Westlands' 9 Exhibit 91? 10 MR. STOKELY: Yes. 11 MR. BIRMINGHAM: Mr. Whitridge, have you had an 12 opportunity to review Westlands' Exhibit 91? 13 MR. WHITRIDGE: Yes. 14 MR. BIRMINGHAM: Would either one of you, based upon 15 the information that is contained in Westlands' Exhibit 91 16 explain how to construct a residual mass curve for that 17 record? 18 MR. STOKELY: No. 19 MR. WHITRIDGE: I would not do this. 20 MR. BIRMINGHAM: Would either of you explain to me 21 how to determine the storage necessary to control the 22 outflow to a minimum dependable flow equal to the average 23 inflow assuming an initially full reservoir and neglecting 24 losses based upon the information contained in Exhibit 25 Westlands' 91? CAPITOL REPORTERS (916) 923-5447 5005 1 MR. WHITRIDGE: Sorry to be difficult, would you mind 2 doing it again? 3 MR. BIRMINGHAM: Certainly. Can either of you 4 explain how to construct, or how to determine the storage 5 necessary to control the outflow to a minimum dependable 6 flow equal to the average inflow assuming an initially full 7 reservoir and neglecting losses based upon the hydrology 8 contained in Westlands' Exhibit 91? 9 MR. STOKELY: I wouldn't. The only thing I'd say 10 about this chart is that if it's based on some kind of 11 natural hydrology, it doesn't make a lot of sense because 12 some of these years were drought years and they show quite 13 a bit of water. 14 MR. BIRMINGHAM: This is a hypothetical question, 15 Mr. Stokely. 16 MR. STOKELY: No. 17 MR. BIRMINGHAM: This is not meant to be 18 representative of any particular watershed. I'm just 19 asking you a hypothetical question based upon a 20 hypothetical 20-year record at a proposed dam site. 21 MR. STOKELY: The answer is "no." 22 MR. JACKSON: And, again, I would object to the 23 question and move to strike on the grounds of relevance. 24 There are not enough pieces of this hypothetical to know 25 what it relates to, whether or not it would be possible to CAPITOL REPORTERS (916) 923-5447 5006 1 determine. It's simply a hypothetical unattached to any 2 real system. 3 C.O. STUBCHAER: Mr. Jackson, I believe 4 Mr. Birmingham, of course, is trying to test the expertise 5 of the witnesses. And I personally had some problems 6 understanding the question. And I am a hydrologist. But 7 I'm going to let the record stand as it is and we will give 8 the weight of the evidence, as usual, to the answer and the 9 question itself. In this case, probably more weight to the 10 question. 11 MR. BIRMINGHAM: I'd like, again, to show you, 12 Mr. Stokely, the textbook, "Applied Hydraulics and 13 Engineering" by Mr. Morris and ask you to refer to page 14 440, particularly problem 11.4 going on to page 441. 15 Is it correct, Mr. Stokely, that the hypothetical 16 question that I've asked of you, or series of hypothetical 17 questions that I've asked of you, are taken from the 18 textbook which I have just given to you? 19 MR. STOKELY: It appears that the years and the 20 flows -- or that the flows are the same as in the book, but 21 the years are different. Instead of starting with 1973, as 22 on your exhibit, it starts in 1943 in the book and goes 23 through 1962, but at a quick glance it looks like the flows 24 are the same. 25 MR. BIRMINGHAM: And the hypothetical questions I CAPITOL REPORTERS (916) 923-5447 5007 1 asked of you concerning the construction of a residual mass 2 curve and the determination of storage necessary to control 3 the outflow to a minimum dependable flow equal to the 4 average inflow, assuming an initially full reservoir and 5 neglecting losses, are questions taken from that 6 engineering textbook, aren't they? 7 MR. STOKELY: Yes. 8 MR. BIRMINGHAM: And does the hypothetical question 9 contained in the textbook provide any more information than 10 the information which I have provided to you here in my 11 examination of you? 12 MR. STOKELY: Ask that again. 13 MR. BIRMINGHAM: Does the hypothetical question in 14 the textbook provide any information in addition to the 15 information that I have provided to you here? 16 MR. STOKELY: It gives answers. 17 MR. BIRMINGHAM: But other than providing the answers 18 to the questions, it doesn't contain any additional 19 information? 20 MR. STOKELY: Not that I could see, but I didn't have 21 a lot of time to look it over. 22 MR. BIRMINGHAM: Now, I'd like, if we can, to turn to 23 Trinity County Exhibit 26. And I hope the relevance of 24 these questions will become apparent. Trinity County 25 Exhibit 26, do you have a copy of that in front of you, CAPITOL REPORTERS (916) 923-5447 5008 1 Mr. Stokely? 2 MR. STOKELY: I'm getting there. Yes. 3 MR. BIRMINGHAM: Trinity County Exhibit 26 -- 4 MR. JACKSON: Excuse me, Mr. Birmingham, there is an 5 overhead in regard to this, maybe it would be clear to the 6 audience if I put that up. 7 MR. BIRMINGHAM: That would be fine, if you'd like to 8 put that up, Mr. Jackson. Thank you. 9 Trinity County Exhibit 26 purports to be an -- 10 excuse me. I'd like to -- on Page 4 of Trinity County 11 Exhibit 15, which is your testimony, Mr. Stokely and 12 Mr. Whitridge, it states as shown in Exhibit Trinity County 13 26, Trinity Lake, formerly Clair Engle Reservoir, refill 14 potential is very poor compared to Shasta Lake? 15 MR. STOKELY: Yes. 16 MR. BIRMINGHAM: If we turn to Trinity County Exhibit 17 26, Trinity County Exhibit 26 for identification purports 18 to be a graph comparing the refill potential for Clair 19 Engle Reservoir and Shasta; is that correct? 20 MR. STOKELY: Correct. 21 MR. BIRMINGHAM: Mr. Stokely, could you perform, 22 based upon your knowledge, an independent analysis to 23 determine whether the data that are depicted in Exhibit 26 24 are correct? 25 MR. STOKELY: No. CAPITOL REPORTERS (916) 923-5447 5009 1 MR. BIRMINGHAM: Mr. Whitridge, could you perform an 2 independent analysis to determine whether the data depicted 3 in Trinity County Exhibits 26 are correct? 4 MR. WHITRIDGE: No. 5 MR. BIRMINGHAM: Could we please examine Trinity 6 County Exhibit 29? Do you have a copy of that, 7 Mr. Jackson? 8 MR. JACKSON: No. 9 MR. BIRMINGHAM: Mr. Whitridge and Mr. Stokely, do 10 you have a copy of Trinity County Exhibit 29? 11 MR. STOKELY: Yes. 12 MR. BIRMINGHAM: Trinity County Exhibits 29 contains 13 Trinity River transports comparisons; is that correct? 14 MR. STOKELY: Yes. 15 MR. BIRMINGHAM: Now, neither of you collected the 16 data on which Exhibits 29 is based; isn't that correct? 17 MR. WHITRIDGE: Yes. 18 MR. BIRMINGHAM: Mr. Stokely? 19 MR. STOKELY: Yes. 20 MR. BIRMINGHAM: And neither of you performed the 21 analysis of data to determine the values reported in 22 Exhibits 29; isn't that correct? 23 MR. WHITRIDGE: Yes. 24 MR. STOKELY: Yes. 25 MR. BIRMINGHAM: And neither of you is qualified to CAPITOL REPORTERS (916) 923-5447 5010 1 perform an independent analysis to determine if the values 2 reported in Exhibits 29 are correct? 3 MR. WHITRIDGE: I'm not qualified. I don't want to 4 speak for -- 5 MR. STOKELY: I'm not qualified either. 6 MR. BIRMINGHAM: I'd like to look at Page 3 of 7 Exhibit 1. On Page 3 of Exhibit 1 there is a chart towards 8 the bottom of the page, or a table that is purportedly 9 taken from the Trinity River flow recommendation being 10 analyzed in the Trinity River EIS/EIR; is that correct? 11 MR. STOKELY: Yes. 12 MR. BIRMINGHAM: And contained in the table on 13 Page 3, Trinity County Exhibit 1, there are numbers that 14 represent the exceedance probability associated with each 15 flow; is that correct? 16 MR. STOKELY: Yes. 17 MR. BIRMINGHAM: Did either of you collect the 18 data -- 19 MR. STOKELY: No. USGS and U.S. Fish and Wildlife 20 Service did. 21 MR. BIRMINGHAM: I had not finished my question, but 22 my question is: Did either of you collect the data on 23 which table contained on Page 3, Exhibit 1 is based, and 24 your answer is: You did not; USGS and Fish and Wildlife 25 Service collected those data? CAPITOL REPORTERS (916) 923-5447 5011 1 MR. STOKELY: Correct. 2 MR. BIRMINGHAM: Are either one of you capable of 3 preparing or performing an analysis of the data of values 4 contained on Page 3 of Exhibit 1 to determine whether those 5 values are correct? 6 MR. STOKELY: No. 7 MR. BIRMINGHAM: Mr. Whitridge? 8 MR. WHITRIDGE: No. 9 MR. BIRMINGHAM: Mr. Whitridge, in your testimony you 10 refer to a study being conducted by the Secretary of the 11 Interior to determine flows for the restoration of the 12 Trinity River fishery; is that correct? 13 MR. WHITRIDGE: I believe so. 14 MR. BIRMINGHAM: And if I understand it, the basic 15 point of your testimony before this Board is that until the 16 Secretary of the Interior makes a final decision concerning 17 flows for the Trinity River, this Board cannot make a 18 decision on implementation of the 1995 Water Quality 19 Control Plan for the Bay-Delta, because this Board will not 20 know how much water will be available from the Trinity 21 basin for that purpose? 22 MR. WHITRIDGE: My idea is close to that, but a 23 little bit different. I think the Board needs to know the 24 flow study results and recommendation and examine the 25 information in the EIS/EIR. CAPITOL REPORTERS (916) 923-5447 5012 1 I believe the Secretary of Interior's decision, in 2 addition, would be, of course, extremely interesting, but 3 the decision itself is not, perhaps, more important than 4 the information for the Board to consider. But, otherwise, 5 yes. 6 MR. STOKELY: And adding to that, this Board's Draft 7 EIR on the proceedings we're involved with does not contain 8 a cumulative impacts analysis of what the proposed Trinity 9 River flow schedule would be. And we believe that's 10 something that's important that should be in the CEQA 11 document, at least, under cumulative effects. 12 MR. BIRMINGHAM: Mr. Whitridge, I'd ask that you look 13 at the page 4609 of the October 14, 1998, transcript of the 14 proceedings. 15 MR. WHITRIDGE: 4609? 16 MR. BIRMINGHAM: 4604, if I said 9 I misspoke. 17 MR. WHITRIDGE: I'm at 4604. 18 MR. BIRMINGHAM: At the top of the page you make the 19 following statement, or the following statement is 20 recorded, excuse me. 21 (Reading): 22 "Pending that formal decision, we suggest that 23 you are not -- you are not able to determine how 24 much Trinity water is available for other 25 particularly out-of-basin uses such as salinity CAPITOL REPORTERS (916) 923-5447 5013 1 control." 2 Do you recall making that statement? 3 MR. WHITRIDGE: (Witness nods.) 4 MR. BIRMINGHAM: You're nodding your head up and 5 down. Does that mean "yes"? 6 MR. WHITRIDGE: I recall -- I believe that I probably 7 made that statement. 8 MR. BIRMINGHAM: Now, have you reviewed the Draft 9 Environmental Impact Report, either of you, prepared in 10 connection with the water rights hearing which we are now 11 involved? 12 MR. STOKELY: I skimmed it, I did not do a detailed 13 review. 14 MR. WHITRIDGE: Similar for me. 15 MR. BIRMINGHAM: So your earlier statement concerning 16 the cumulative impact analysis was based upon having 17 skimmed the document, Mr. Stokely? 18 MR. STOKELY: Yes. I looked for references to the 19 Trinity River and I did not see in there anywhere a 20 cumulative impact analysis, or any analysis of the proposed 21 Trinity River flow schedule that's contained in our 22 testimony, or in the programmatic EIS for the Central 23 Valley Project Improvement Act. 24 MR. BIRMINGHAM: Now, are either of you familiar with 25 flow alternative three contained in the Draft Environmental CAPITOL REPORTERS (916) 923-5447 5014 1 Impact Report for the water rights hearing for which we are 2 now involved? 3 MR. WHITRIDGE: I don't recall which alternative is 4 which. 5 MR. STOKELY: I'm not that familiar with the 6 alternatives. 7 MR. BIRMINGHAM: I'm going to ask you a series of 8 questions concerning flow alternative three. And for my 9 brethren in the San Joaquin Valley, I'm going to restrict 10 my questions to the application of the flow alternative 11 three in the Sacramento Valley. 12 Can we make that assumption, Mr. Stokely? 13 MR. STOKELY: Can you repeat that again? 14 MR. BIRMINGHAM: Yes. I'm going to ask you a series 15 of questions regarding flow alternative three. And for 16 purposes of my questions, I'm going to ask you to assume 17 that I'm talking about the application of flow alternative 18 three to the Sacramento Valley. 19 MR. STOKELY: Okay. 20 MR. JACKSON: And I'm going to object to this line of 21 questioning on the ground that we're not in Section II-A, 22 in which the alternatives would be compared. And 23 Mr. Stokely and Mr. Whitridge have already indicated that 24 they are not -- did not specifically review the 25 alternatives for the basis of that hearing at this time. CAPITOL REPORTERS (916) 923-5447 5015 1 MR. BIRMINGHAM: Mr. -- 2 MR. JACKSON: Did not submit evidence in regard to 3 the comparison of alternatives at this time. 4 MR. BIRMINGHAM: Mr. Stubchaer, Mr. Whitridge has 5 testified, both his written testimony, and I'll point it 6 out to the Board if you would like, and it is stated in his 7 oral summary and under cross-examination by Mr. Porgans. 8 And I would point all these places out if you 9 would like, that until the Trinity River flow study is 10 completed, this Board cannot go forward with a decision on 11 the implementation of the 1995 Water Quality Control Plan, 12 because it will not know how much water is available for 13 salinity control purposes in the Delta. I'm entitled to 14 cross-examine on the basis of that opinion. And I'm 15 entitled to ask questions to impeach that opinion. 16 C.O. STUBCHAER: It does seem to me, Mr. Jackson, 17 that we do allow wide latitude in cross-examination. But, 18 Mr. Birmingham, it also seems to me since the witnesses 19 have said they're not familiar with alternative three, they 20 ought to be given the opportunity to read it, or be allowed 21 to have it read to them. 22 MR. BIRMINGHAM: I wonder if I could take a moment 23 and explain it to them, which I was going to do during my 24 questions? 25 C.O. STUBCHAER: Yes. Proceed. CAPITOL REPORTERS (916) 923-5447 5016 1 MR. BIRMINGHAM: And I'm sure if I don't explain it 2 accurately, Mr. Jackson would object. And I would invite 3 him to do that. 4 C.O. STUBCHAER: Does Mr. Jackson have a copy to 5 refer to? 6 MR. JACKSON: Mr. Jackson does in the back of his car 7 in the parking lot, because he was expecting that II-A 8 would be next month. 9 MR. BIRMINGHAM: Well, my questions are very general. 10 And I don't think we actually need a copy. If I could go 11 forward, I think it would save time. 12 C.O. STUBCHAER: We have a copy up here so we can 13 follow along. 14 MR. BIRMINGHAM: All right. Thank you. And if I 15 misstate something, I'm sure the Board will correct me. 16 Now, isn't it -- I'm going to ask you to assume 17 something since neither of you is familiar with flow 18 alternative three. I'm going to ask you to assume that 19 under flow alternative three releases of water for export 20 into the Sacramento Valley are treated as releases from 21 storage. And flow alternative three -- 22 MR. WHITRIDGE: This is from the Trinity Project? 23 MR. BIRMINGHAM: Yes. Releases -- thank you for 24 clarifying that, Mr. Whitridge. Releases from the Trinity 25 Project are treated, for purposes of analysis, as releases CAPITOL REPORTERS (916) 923-5447 5017 1 from storage in a CVP facility. 2 And flow alternative three implements a modified 3 Term 91. Can either of you explain to me what "Term 91" 4 means? 5 MR. STOKELY: No. 6 MR. BIRMINGHAM: Mr. Whitridge, can you explain what 7 Term 91 means? 8 MR. WHITRIDGE: No. Of course, I've read about it. 9 At this time, no. 10 MR. BIRMINGHAM: So sitting here today neither one of 11 you can tell us whether flow alternative three could be 12 implemented without regard to the amount of water which 13 would be retained in the Trinity basin for purposes of 14 restoration of the fishery? 15 MR. STOKELY: I can't tell. I might be able to look 16 at model runs of carryover storage and things like that and 17 I might be able to tell you how well it could meet 18 temperature objectives in the Trinity River basin if I had 19 that analysis in front of me. 20 MR. BIRMINGHAM: Excuse me. I'm talking about 21 implementing the 1995 Water Quality Control Plan for the 22 Bay-Delta. 23 MR. STOKELY: No. 24 MR. BIRMINGHAM: And I'm asking: Sitting here based 25 upon what you know, neither one of you could tell us CAPITOL REPORTERS (916) 923-5447 5018 1 whether the Board could adopt flow alternative three as a 2 means of implementing the 1995 Water Quality Control Plan 3 without regard to the water which would be left in the 4 Trinity basin for purposes of restoring the Trinity basin 5 fishery? 6 MR. JACKSON: Excuse me. So that I understand your 7 question. That assumes that Term 91 is legal; is that 8 correct? Are you calling for a legal conclusion? 9 MR. BIRMINGHAM: No. I believe Mr. Whitridge, 10 Mr. Stubchaer, testified that it's Trinity County's 11 position that the Board can't go forward with a decision on 12 implementation of the 1995 Water Quality Control Plan until 13 the Secretary has completed the Trinity River flow study. 14 And I'm asking sitting here today if these 15 witnesses can tell us whether the Board, assuming it's 16 legal, could adopt flow alternative three as a means of 17 implementing the 1995 Water Quality Control Plan without 18 regard to the amount of water that would be left in the 19 Trinity River basin for purposes of restoring the Trinity 20 River fishery. 21 C.O. STUBCHAER: Mr. Birmingham, if I were an 22 attorney I'd ask about the foundation for Term 91. 23 MR. JACKSON: Right. 24 C.O. STUBCHAER: You mentioned Term 91. In the 25 context that you're using it, I think most of us know what CAPITOL REPORTERS (916) 923-5447 5019 1 it is. 2 MR. BIRMINGHAM: Well, Mr. Stubchaer, you'll need to 3 remember that both Mr. Whitridge and Mr. Stokely have been 4 offered as experts. And I would submit that the opinion 5 that Mr. Whitridge has expressed on behalf of Trinity 6 County is an opinion concerning an ultimate fact. 7 And if Mr. Whitridge doesn't know how much -- 8 doesn't know the basis of Term 91, and doesn't know what's 9 contained in the Draft Environmental Impact Report, it goes 10 to, I would submit, the admissibility of his opinion. But 11 under what you have previously ruled it, certainly, would 12 go to the weight that should be afforded that opinion by 13 this Board. 14 C.O. STUBCHAER: Yes. 15 MR. BIRMINGHAM: So I -- 16 C.O. STUBCHAER: Mr. Jackson? 17 MR. JACKSON: Yes. Again, we are very far afield 18 from the testimony that has been offered in this case. The 19 question of relevance in regard to Term 91 and alternative 20 three here in Phase V, seems to me, to be one that the 21 Board ought to take into account. They did not offer 22 themselves as experts having anything to do with Term 91, 23 its legal implications, or the hydrologic basis in -- for 24 which Term 91 was developed. 25 C.O. STUBCHAER: We can see some relevance, CAPITOL REPORTERS (916) 923-5447 5020 1 Mr. Jackson, in that the water being talked about is 2 supposedly going to be used to control salinity, or help 3 control salinity in the Delta, so I'll permit the question. 4 Proceed. 5 MR. BIRMINGHAM: Do you remember the question? 6 MR. STOKELY: I believe the answer is no, since I 7 don't know what Term 91 is and I'm not familiar with 8 alternative three. The only thing I will add is that in my 9 testimony and in our written testimony we did offer an 10 alternative solution to the Board to proceed with its 11 Phase V proceedings on salinity and that is to have a 12 minimum carryover storage in Trinity Lake of 85 feet down, 13 which would help assure meeting Trinity temperature 14 requirements and also to reserve an adequate supply of 15 water to help implement the Interior Secretary's Trinity 16 River flow decision, which we hope will occur in the next 17 year. 18 MR. BIRMINGHAM: Now, let me follow up on, if I may, 19 because I was going to get to that later, but now would be 20 an appropriate point since you brought it up. 21 The condition that you've proposed for minimum 22 carryover storage is a condition that would be imposed for 23 the benefit of the Trinity River fishery; is that correct, 24 Mr. Stokely? 25 MR. STOKELY: That would be the primary purpose. CAPITOL REPORTERS (916) 923-5447 5021 1 There may be other incidental benefits to other beneficial 2 uses. 3 MR. BIRMINGHAM: But the reason that the County of 4 Trinity has proposed that condition would be to benefit the 5 Trinity River fishery? 6 MR. STOKELY: Correct. 7 MR. BIRMINGHAM: Is that your understanding, 8 Mr. Whitridge? 9 MR. WHITRIDGE: Yes, sir. 10 MR. BIRMINGHAM: Now, I'd like to go back to the 11 question I was asking a few minutes ago. Mr. Whitridge, do 12 you recall the question about implementing a decision under 13 flow alternative three -- 14 MR. WHITRIDGE: Would it be possible to accomplish 15 the objectives without affecting Trinity water? 16 MR. BIRMINGHAM: No. Let me ask the questions to 17 make sure that it's clearly stated on the record. And, 18 again, so I can make sure that Mr. Jackson understands the 19 relevance, I'd ask you to look at Page 5 of Trinity County 20 Exhibit 1. 21 Now, Trinity County Exhibit 1 is written testimony 22 which the two of you prepared; is that correct? 23 MR. WHITRIDGE: Yes. 24 MR. STOKELY: Yes. 25 MR. BIRMINGHAM: And Trinity County Exhibit 1 is CAPITOL REPORTERS (916) 923-5447 5022 1 written testimony that has been incorporated by reference 2 in Trinity County Exhibit 15? 3 MR. STOKELY: Yes. 4 MR. BIRMINGHAM: And on Page 5 of Trinity County 5 Exhibit 1 it states the following: 6 (Reading): 7 "Given the fact that Trinity River water 8 commingles with the Sacramento River, Delta 9 and other waterways, any interim or final 10 Approvals under Phases III, IV and beyond must 11 include explicit conditions that the Trinity 12 River fishery restoration and 13 area/watershed/county of origin needs within the 14 Trinity River basin be protected and fulfilled 15 before Trinity can be used -- Trinity water can 16 be used for other beneficial uses in the 17 Bay-Delta watershed." 18 Did I read that correctly? 19 MR. WHITRIDGE: Yes. 20 MR. STOKELY: Yes. 21 MR. BIRMINGHAM: And, again, Mr. Whitridge, going 22 back to your oral summary, the purpose of your testimony is 23 to impart on the Board the notion that it can't adopt a 24 decision concerning implementation of the 1995 Water 25 Quality Control Plan until there is a final decision by the CAPITOL REPORTERS (916) 923-5447 5023 1 Secretary of the Interior concerning flows in the Trinity 2 River? 3 MR. WHITRIDGE: My position is close to that. I 4 don't remember exactly what I said. It's quite possible I 5 said exactly that last time. I would like to clarify that. 6 My position, more precisely, is that -- and I think I used 7 the words "with confidence" in my oral testimony. 8 I think it's impossible for the Board to -- I'm 9 talking intellectually, this is not a legal opinion, but 10 intellectually to allocate water within the State without 11 knowing how much water is available from certain 12 substantial sources. 13 And the definition of what's available from the 14 Trinity is not confined to the Secretary's decision. But 15 it's, in my mind, it's even more -- will be described by 16 the flow study report and recommendations in the 17 environmental document. 18 MR. BIRMINGHAM: But sitting here today you can't 19 explain to us how flow alternative three, contained in the 20 Draft Environmental Impact Report, would affect the opinion 21 that you've just expressed? 22 MR. WHITRIDGE: Correct. 23 C.O. STUBCHAER: Mr. Birmingham? 24 MR. BIRMINGHAM: Yes, Mr. Stubchaer? 25 C.O. STUBCHAER: The hour has expired. How much more CAPITOL REPORTERS (916) 923-5447 5024 1 time do you think you'll require? 2 MR. BIRMINGHAM: I don't remember who said it, but in 3 some legal movie they said -- in fact, I do recall, I won't 4 say it, but "I'm just getting warmed up." 5 C.O. STUBCHAER: You're just getting warmed up. 6 MR. BIRMINGHAM: I'm just getting warmed up. 7 C.O. STUBCHAER: What points do you have remaining to 8 establish? 9 MR. BIRMINGHAM: In particular, I want to 10 cross-examine these witnesses concerning the ultimate 11 opinion which they've expressed that the use of water in 12 Westlands Water District is waste and unreasonable and in 13 violation of Article 10, Section 2. 14 Most of the cross-examination that I've conducted 15 this morning, Mr. Stubchaer, most of it, not all of it, but 16 most of it, I would say, goes to the qualifications of 17 these particular witnesses to express the opinions that are 18 contained in their testimony. And I, certainly, can try 19 and move a little bit faster than we've been moving. 20 C.O. STUBCHAER: Appreciate it. Please, proceed. 21 MR. BIRMINGHAM: Mr. Stokely, Page 1 of Exhibit 15, 22 Trinity County Exhibit 15 states: 23 (Reading): 24 "Damming the Trinity River resulted in expansion 25 of the CVP service area primarily to lands in CAPITOL REPORTERS (916) 923-5447 5025 1 the Westlands Water District, but also the San 2 Luis Water District and to a lesser extent lands 3 within the Tehama-Colusa service area." 4 Did I read that correctly? 5 MR. STOKELY: Yes. 6 MR. BIRMINGHAM: You testified that damming the 7 Trinity River allowed irrigation of highly saline and 8 seleniferous soils in the western San Joaquin Valley as 9 shown on your Exhibit 17? 10 MR. STOKELY: Yes. 11 MR. BIRMINGHAM: May we take a moment and look at 12 Exhibit 17, I believe you have a copy of it? 13 MR. STOKELY: Yes. 14 MR. BIRMINGHAM: Exhibit 17 purportedly shows the CVP 15 place of use with and without the Trinity River division; 16 is that correct, Mr. Stokely? 17 MR. STOKELY: Yes, at least, for this particular area 18 in the Central Valley Project. It's not the entire Central 19 Valley Project. 20 MR. BIRMINGHAM: Now, it's correct, isn't it, 21 Mr. Stokely, that Exhibit 17, which is apparently being 22 displayed on the overhead, is different from the version of 23 Exhibit 17 that was submitted to the Board with your 24 testimony and served on the parties to this proceeding? 25 MR. STOKELY: Correct. CAPITOL REPORTERS (916) 923-5447 5026 1 MR. BIRMINGHAM: And when Mr. Sexton was 2 cross-examining you on Wednesday of last week, you 3 testified about Exhibit 17. And I'd like to quote, if I 4 may: 5 (Reading): 6 "I cannot testify as to the accuracy of the 7 map," end of quote. 8 MR. STOKELY: Yes. 9 MR. BIRMINGHAM: Do you recall saying that? 10 MR. STOKELY: Yes, because I did not prepare the map. 11 MR. BIRMINGHAM: But, in any event, the area in which 12 your testimony focuses on is Westlands Water District; is 13 that correct? 14 MR. STOKELY: Westlands and also Panoche and San 15 Luis, primarily Westlands. 16 MR. BIRMINGHAM: Now, when I read from your testimony 17 Exhibit 15, Page 1, you talked about the expansion of the 18 CVP place of use based upon the permits issued by the Water 19 Board, or its predecessor, for the appropriation of water 20 for Trinity River; is that correct? 21 MR. STOKELY: Yes. 22 MR. BIRMINGHAM: And you testified that that water 23 was used to serve primarily Westlands and to a lesser 24 extent San Luis Water District and the Tehama-Colusa water 25 service area? CAPITOL REPORTERS (916) 923-5447 5027 1 MR. STOKELY: Something like that. 2 MR. BIRMINGHAM: Now, is it your understanding, 3 Mr. Stokely, that prior to the construction of Trinity 4 River the San Luis Water District did not receive water 5 from the Central Valley Project? 6 MR. STOKELY: Actually, according to this map they 7 were within the CVP service area prior to expansion of 8 Trinity. 9 MR. BIRMINGHAM: San Luis was within the service area 10 of the CVP based upon the CVP's other permits prior to the 11 construction of the Trinity division? 12 MR. STOKELY: Correct. 13 MR. JACKSON: One moment, Mr. Stubchaer. 14 C.O. STUBCHAER: We're off the record for a moment. 15 (Off the record from 10:16 a.m. to 10:17 a.m.) 16 C.O. STUBCHAER: You ready, Mr. Jackson? 17 MR. JACKSON: I've reviewed it. I would like my 18 witness to be able to review it. 19 C.O. STUBCHAER: We'll take our usual 12-minute break 20 (Recess taken from 10:17 a.m. to 10:36 a.m.) 21 C.O. STUBCHAER: We'll reconvene the hearing and go 22 back on the record. 23 Mr. Birmingham. 24 MR. BIRMINGHAM: I wonder if we could wait until 25 Ms. Whitney is back, because I'm going to identify an CAPITOL REPORTERS (916) 923-5447 5028 1 exhibit and I understand she's the keeper of the record. 2 C.O. STUBCHAER: Unless Mr. Howard could substitute 3 for her. 4 MR. HOWARD: For one. 5 MR. NOMELLINI: If I could ask, while we're waiting, 6 could the Chair allow me to look at that engineering 7 textbook in that hypothetical that was put out? Those of 8 us in the audience didn't get a chance to take a look at 9 it. 10 C.O. STUBCHAER: Yes. Mr. Birmingham will be 11 graciously allow you to look at it. 12 MR. NOMELLINI: I thought he would once you asked 13 him. 14 C.O. STUBCHAER: Mr. Jackson? 15 MR. JACKSON: I wonder while we're waiting if I may 16 step out for one moment to make a one-minute phone call and 17 I'll be right back? 18 C.O. STUBCHAER: Yes. 19 C.O. CAFFREY: Are we off the record? 20 C.O. STUBCHAER: Yes, we're off the record. 21 (Off the record from 10:34 a.m. to 10:38 a.m.) 22 C.O. STUBCHAER: Back on the record. Mr. Birmingham. 23 MR. BIRMINGHAM: Thank you, Mr. Stubchaer. 24 During the recess, Mr. Stokely, did you have an 25 opportunity to review the excerpts of a report, which I CAPITOL REPORTERS (916) 923-5447 5029 1 have had marked for identification as Westlands' Exhibit 2 92? 3 MR. STOKELY: Yes, I did. 4 MR. BIRMINGHAM: And Westlands' Exhibit 92 is a 5 portion of a report entitled "San Luis Unit Central Valley 6 Project, California." And it is dated May 1955. Is that 7 correct? 8 MR. STOKELY: Yes. 9 MR. BIRMINGHAM: Now, I'd like -- have you reviewed 10 the feasibility report that has been marked for 11 identification as Westlands' Exhibit 92? 12 MR. STOKELY: I just reviewed it. 13 MR. BIRMINGHAM: Prior to today, have you reviewed 14 it? 15 MR. STOKELY: No. 16 MR. BIRMINGHAM: I'd like to ask you to look at Page 17 8 of the feasibility report that's been marked for 18 identification as Westlands' Exhibit 92. And at the bottom 19 of the page there is a paragraph that states: 20 (Reading): 21 "The San Luis Water District was formed in 22 January, 1951, and is located along the coast 23 range foothill in western Merced and Fresno 24 Counties." 25 And then further down within the paragraph it CAPITOL REPORTERS (916) 923-5447 5030 1 states: 2 (Reading): 3 "For several years, this District has been 4 receiving a portion of its water from the 5 Delta-Mendota Canal." 6 Is that correct? 7 MR. STOKELY: That's what it says. 8 MR. BIRMINGHAM: And so from your earlier testimony 9 that -- looking at Exhibit 17, and from Exhibit 8 you would 10 conclude, wouldn't you, that the San Luis Water District 11 was within the permitted place of use of permits held by 12 the Bureau of Reclamation before the construction of the 13 Trinity division? 14 MR. STOKELY: That's correct. I stand corrected. 15 MR. BIRMINGHAM: So if we look at Page 1 of Exhibit 16 15 in the bottom paragraph, excluding the footnotes, we 17 would strike the words "but also the San Luis Water 18 District" after the reference to Westlands Water District; 19 isn't that correct? 20 MR. STOKELY: That is correct. That's not to say 21 that they don't get Trinity River water through the Central 22 Valley Project, but it is not a result of expansion of the 23 service area. 24 MR. BIRMINGHAM: San Luis Water District got water 25 before construction of the Trinity River dam? CAPITOL REPORTERS (916) 923-5447 5031 1 MR. STOKELY: Yes. 2 MR. BIRMINGHAM: Now, in fact, on Page 1 of Exhibit 1 3 you talk about the construction of the Trinity River 4 division. And on Page 1 you make reference only to 5 Westlands Water District and the Tehama-Colusa service 6 area; is that correct? 7 MR. STOKELY: Yes. 8 MR. BIRMINGHAM: So it would not be necessary to 9 correct anything on Page 1 of Exhibit 1 in that regard? 10 MR. STOKELY: Actually, there was also an expansion 11 into, I believe, it was the Cow Creek area near Redding. 12 MR. BIRMINGHAM: I believe that you testified that on 13 average, approximately 1.2 million acre-feet of water are 14 exported on an annual basis from the Trinity River 15 division; is that correct? 16 MR. STOKELY: That is not correct. 1.2 million 17 acre-feet is the average annual inflow based on 18 approximately 70 years of hydraulic information from the 19 USGS gauging station at Lewiston in the Trinity River. As 20 we showed in our revised Exhibit 2, which I believe was 21 distributed, the average export from the Trinity River 22 basin since 1964 is 980,000 acre-feet per year. 23 MR. BIRMINGHAM: Now, is it your understanding that 24 Westlands Water District has a contractual entitlement to 25 receive up to 1.15 million acre-feet of water per year from CAPITOL REPORTERS (916) 923-5447 5032 1 the Central Valley Project? 2 MR. STOKELY: I'm not sure of the exact amount, 3 somewhere over a million acre-feet. 4 MR. BIRMINGHAM: So the testimony that you're 5 presenting here concerning the delivery of water to areas 6 outside of the place of use that existed prior to the 7 construction of Trinity division pertains, in particular, 8 to Westlands Water District? 9 MR. STOKELY: Yes. 10 MR. BIRMINGHAM: And Trinity County maintains that 11 the irrigation of large portions of Westlands Water 12 District constitutes waste and unreasonable use; is that 13 correct? 14 MR. STOKELY: Yes. 15 MR. BIRMINGHAM: And you testified that the use of 16 water to irrigate areas depicted on Exhibit 17 within 17 Westlands violates Article 10, Section 2, of the California 18 Constitution? 19 MR. STOKELY: Yes. 20 MR. BIRMINGHAM: You testified several times that in 21 reaching the conclusion that the irrigation of a large 22 portion of Westlands Water District, as depicted on Exhibit 23 17, constitutes waste and unreasonable use you relied on 24 Exhibit 22, Trinity County Exhibit 22? 25 MR. STOKELY: Primarily. However, we did also rely CAPITOL REPORTERS (916) 923-5447 5033 1 on Exhibit 20, which is the 303(d) impaired water bodies 2 list of the Central Valley Regional Water Quality Control 3 Board. 4 MR. BIRMINGHAM: Within Exhibit 20 of the -- within 5 Exhibit Trinity County 20, isn't it correct, that there is 6 only one water course that is within the boundaries of 7 Westlands Water District? 8 MR. STOKELY: Let me double-check. I know Panoche 9 Creek is. I don't recall what other streams are within the 10 District, but I do recall that, Panoche Creek. 11 MR. BIRMINGHAM: And, in fact, if you look at Exhibit 12 17 there are two Panoche Creeks; is that correct? 13 MR. STOKELY: Yes, Big and Little. 14 MR. BIRMINGHAM: And you don't know which Panoche 15 Creek is being referred to by the Regional Quality Control 16 Board on Exhibit 20, do you? 17 MR. STOKELY: It's my understanding that it's Big 18 Panoche Creek, but I'm not totally sure. 19 MR. BIRMINGHAM: And, isn't it correct, that Big 20 Panoche Creek drains an area to the west of Westlands Water 21 District? 22 MR. STOKELY: Yes, it does come out of that area. 23 MR. BIRMINGHAM: And Big Panoche Creek, naturally 24 during periods of runoff, would have high concentrations of 25 selenium in its waters, wouldn't it? CAPITOL REPORTERS (916) 923-5447 5034 1 MR. STOKELY: It would, although I believe that the 2 application of irrigation water may cause greater runoff of 3 selenium or salt from the general area. 4 MR. BIRMINGHAM: Now, you testified last week that 5 it's your understanding that since the adoption of Decision 6 85-1 by this Board, Westlands Water District has had a 7 no-discharge policy. Do you recall that testimony? 8 MR. STOKELY: Something along those lines. 9 MR. BIRMINGHAM: So, isn't it correct, Mr. Stokely, 10 that none of the water users within Westlands Water 11 District discharge tailwater into Big Panoche Creek? 12 MR. STOKELY: It depends on what you call 13 "discharge." Again, it's my understanding that when you 14 apply water to these types of soils it can leach the salt 15 and the selenium out of the soil, which then can either 16 move off-site through tailwater, tile water, or there can 17 be subsurface groundwater movement. 18 And it may be that during large storm events that 19 the stored salt or selenium may discharge off of those 20 lands into various water bodies and, therefore, cause a 21 discharge. So it depends on what you would refer to as a 22 "discharge." 23 MR. BIRMINGHAM: Now, my question pertained to 24 tailwater, Mr. Stokely. What is your understanding with 25 respect to the discharge of tailwater? Let me ask the CAPITOL REPORTERS (916) 923-5447 5035 1 question differently. 2 Isn't it correct, that tailwater is not discharged 3 by farmers within Westlands Water District into Big Panoche 4 Creek? 5 MR. STOKELY: It's my understanding it's not allowed 6 to occur. I don't know whether it has occurred or not. 7 MR. BIRMINGHAM: Now, last week when Mr. Sexton was 8 cross-examining you, he asked both of you about your 9 knowledge concerning the solubility of the selenium 10 concentrations depicted on Exhibit 17. Do you recall that 11 question? 12 MR. STOKELY: Yes, I do. 13 MR. BIRMINGHAM: And you testified that you don't 14 know whether or not the selenium concentrations in the 15 soils depicted on Exhibit 17 is soluble? 16 MR. STOKELY: I do not know. I do have some 17 information that would lead me to believe that irrigating 18 those soils leads to accumulation of selenium in the 19 groundwater further down slope, which I can demonstrate to 20 you in Figure 5 of Staff Exhibit 147, which is soil 21 concentrations in soils. That's from the Rainbow Report. 22 This is basically the same information that we based our 23 Exhibit 17 and 18 from. 24 This is the selenium in the soils map based on the 25 Tidball report, which I believe is our Exhibit 16. This CAPITOL REPORTERS (916) 923-5447 5036 1 map -- and you can see the same concentrations, they're 2 heavy. The categorization is a little bit different. And 3 then what I'd like to do is put this Figure 8, which is 4 selenium concentrations in soil groundwater sampled between 5 '84 and '89, this is also from Staff Exhibit 147 of the 6 Rainbow Report. 7 And if you'll notice, the selenium in the 8 groundwater is not the same as the selenium in the soils. 9 And if you'll note, the areas of the relatively heavy 10 concentration are closer, in general, to the San Joaquin 11 River and, in general, on the west side of the San Joaquin 12 River. Which, at least, tells me with my somewhat limited 13 understanding of hydrology, that there is a likelihood that 14 the selenium has been mobilized through irrigation 15 practices and has moved down slope through the groundwater. 16 And is accumulating along the west side of the San Joaquin 17 River where it may very well be discharging into the river 18 through seeps, or when there is a storm event as I had 19 previously suggested. 20 Therefore, the conclusion is that the soil -- the 21 soil selenium concentrations are different than the soil -- 22 than the selenium concentrations in groundwater. So 23 somehow the selenium is getting from the soil into the 24 groundwater. And they're not necessarily synonymous. I 25 guess to me that's an indication that water does flow CAPITOL REPORTERS (916) 923-5447 5037 1 downhill. 2 MR. BIRMINGHAM: We'll get back to that in a few 3 moments. The areas that are depicted -- may I look at that 4 for a moment, Mr. Jackson? 5 MR. JACKSON: Yes, sir, you may. 6 MR. BIRMINGHAM: May I see it, please? Mr. Jackson, 7 would you put this back up, please. 8 Mr. Jackson has just put up an overhead, 9 Mr. Stokely, again, can you tell me from what document this 10 overhead is taken? 11 MR. STOKELY: This is from Staff Exhibit 147 referred 12 to as the Rainbow Report. It's the -- exact title I 13 believe is -- 14 MR. BIRMINGHAM: Is the exact title "A Management 15 Plan for Agricultural Subsurface Drainage and Related 16 Problems on the San Joaquin Valley," September 1990? 17 MR. STOKELY: Yes. 18 MR. BIRMINGHAM: And which figure is that, 19 Mr. Stokely? 20 MR. STOKELY: Would you tilt that down a little bit? 21 Figure 8. 22 MR. BIRMINGHAM: Which is on Page 33 of Staff Exhibit 23 147? 24 MR. STOKELY: Yes. 25 MR. BIRMINGHAM: Now, I'd like to focus on the area CAPITOL REPORTERS (916) 923-5447 5038 1 within Westlands Water District, because we've agreed that 2 that's the area your testimony pertains to; is that 3 correct, Mr. Stokely? 4 MR. STOKELY: Well, actually, no. That's the area 5 that our testimony focuses on in relation to the expanded 6 CVP place of use related to the Trinity River. However, 7 our waste and unreasonable use claim would extend into the 8 Panoche and San Luis Water Districts. 9 MR. BIRMINGHAM: I'd like to focus on Westlands Water 10 District. 11 MR. STOKELY: Okay. 12 MR. BIRMINGHAM: Have you conducted any independent 13 analysis to determine how far the soils within Westlands 14 Water District depicted on Figure 8, Staff Exhibit 147, are 15 from the San Joaquin River? 16 MR. STOKELY: Can you repeat that again? 17 MR. BIRMINGHAM: Yes. I'm not sure I can ask it with 18 the exact words, but I think I can ask it to convey the 19 same meaning. 20 Have you conducted an independent analysis to 21 determine how far the soils depicted in Figure 8 of Staff 22 Exhibit 147 within Westlands Water District are from the 23 San Joaquin River? 24 MR. STOKELY: Figure 8 does not show soil. It shows 25 selenium concentrations in shallow groundwater. CAPITOL REPORTERS (916) 923-5447 5039 1 MR. BIRMINGHAM: Have you done any kind of an 2 analysis to determine how far the selenium concentrations 3 in shallow groundwater within the boundaries of Westlands 4 Water District are from the San Joaquin River? 5 MR. STOKELY: I have not. 6 MR. BIRMINGHAM: Have you conducted any kind of an 7 analysis of the rate at which subsurface groundwater -- let 8 me restate the question. 9 Have you conducted any kind of analysis concerning 10 the rate at which subsurface water migrates down slope 11 within Westlands Water District? 12 MR. STOKELY: No. I've only looked at, again, the 13 303 impaired water bodies list and seen areas down slope 14 that are impaired by selenium and salt. 15 MR. BIRMINGHAM: And you cannot testify, based upon 16 your examination of that exhibit, the source of the 17 contaminated groundwater? 18 MR. STOKELY: I have not done any independent 19 investigation of that. Again, I will quote from Page 40 20 and 41 of Staff Exhibit 147: 21 (Reading): 22 "Decades of irrigation have transferred soluble 23 selenium from the upper soils to the shallow 24 groundwater where its highest concentrations 25 occur generally along the edge of the valley CAPITOL REPORTERS (916) 923-5447 5040 1 trough in lower parts of the coast range of the 2 alluvial fans." 3 MR. BIRMINGHAM: Now, the statement that you just 4 read from pages 40 and 41 of Staff Exhibit 147 is not 5 specific with respect to areas, is it? 6 MR. STOKELY: No. 7 MR. BIRMINGHAM: So from the statement that you just 8 read on pages 40 and 41 you cannot conclude from where the 9 soluble selenium in the upper soils to shallow groundwater 10 came from, can you? 11 MR. STOKELY: No. But common sense tells me that the 12 upper percentile of soils, the red area in Exhibit 17, is 13 the one-percent worst of the worst soils. And, at least, 14 common sense would tell me that the selenium would come 15 from the areas of the highest concentrations in the soils, 16 but I do not have any independent research of that. 17 MR. BIRMINGHAM: So your common sense tells you that 18 the selenium on -- that selenium concentrations in 19 groundwater, depicted on Figure 8 from Staff Exhibit 147, 20 comes from what you termed the "radioactive red area" of 21 Westlands Water District depicted on staff -- on Trinity 22 County Exhibit 17? 23 MR. STOKELY: What I would say is that I believe that 24 the concentrations of selenium are coming from the areas 25 with the highest -- the groundwater concentrations of CAPITOL REPORTERS (916) 923-5447 5041 1 selenium are coming from the irrigated lands with the 2 highest concentration of selenium in them. 3 As to specifically which area goes where, I can't 4 tell you. But, again, common sense tells me that if those 5 areas in the three Mary Kay colors, as Chairman Caffrey had 6 suggested, those are the upper decile, the worst 10 percent 7 of the soils in the San Joaquin Valley for selenium 8 concentrations it would make sense if you irrigate those 9 soils and you're leaching out salt, you're also leaching 10 out selenium. 11 MR. BIRMINGHAM: I'd like to show to you, 12 Mr. Stokely, Westlands' Water District Exhibit 13 in 13 evidence. And I'd like you to take a few minutes and 14 review Westlands' Water District Exhibit 13 in evidence. 15 And after you've had a chance to review it, would you, 16 please, let me know. 17 C.O. STUBCHAER: We'll go off the record. 18 (Off the record from 11:00 a.m. to 11:01 a.m.) 19 C.O. STUBCHAER: Back on the record. 20 MR. BIRMINGHAM: Mr. Stokely, have you had an 21 opportunity to review Exhibit Westlands' 13? 22 MR. STOKELY: Yes, very briefly. 23 MR. BIRMINGHAM: Isn't it correct that Exhibit 24 Westlands'' 13, which is in evidence, depicts a groundwater 25 divide in the area which is also depicted as Westlands' CAPITOL REPORTERS (916) 923-5447 5042 1 Water District on Trinity County Exhibit 17? 2 MR. STOKELY: It shows the groundwater divide. I am 3 unable to place it exactly where it would lie on Trinity 4 County Exhibit 17. 5 MR. BIRMINGHAM: But you see Little Panoche Creek on 6 Westlands' Exhibit 13 -- 7 MR. STOKELY: Yes. 8 MR. BIRMINGHAM: -- in evidence? And you see Big 9 Panoche Creek on Westlands' Water District Exhibit 13? 10 MR. STOKELY: Yes. 11 MR. BIRMINGHAM: And you see the San Benito county 12 line on Westlands' Water District Exhibit 13; is that 13 correct? 14 MR. STOKELY: Yes. 15 MR. BIRMINGHAM: And that's also depicted on Trinity 16 County Exhibit 17; is that correct? 17 MR. STOKELY: Yes. 18 MR. BIRMINGHAM: Now, isn't it correct, Mr. Stokely, 19 that virtually all of the radioactive red area that's 20 depicted on Exhibit 17 is west of the groundwater divide 21 depicted on Westlands' Water District Exhibit 13 13? 22 MR. STOKELY: Again, I haven't been able to measure, 23 but it does look like, at least, a portion of it is west of 24 the divide. 25 MR. BIRMINGHAM: The town of Mendota is depicted on CAPITOL REPORTERS (916) 923-5447 5043 1 Trinity County Exhibit 17, isn't it, Mr. Stokely? 2 MR. STOKELY: Yes. 3 MR. BIRMINGHAM: And the town of Mendota is depicted 4 on Westlands Water District 13, isn't it? 5 MR. STOKELY: Yes. 6 MR. BIRMINGHAM: And using the scale at the bottom of 7 Figure 23, which is Westlands' Water District Exhibit 13 in 8 evidence, the groundwater divide depicted on Westlands' 9 Water District Exhibit 13 is approximately 10 miles to the 10 west of the town of Mendota; is that correct? 11 MR. STOKELY: Approximately. 12 MR. BIRMINGHAM: And the radioactive red area, which 13 is depicted on Trinity County Exhibit 17, is approximately 14 10 miles to the southwest of the town of Mendota; is that 15 correct? 16 MR. STOKELY: I'm not scaling off of it, but 17 something along those lines. 18 MR. BIRMINGHAM: Well, comparing the location of the 19 town of Mendota to the radioactive red area, as depicted on 20 Trinity County Exhibit 17, and the scale at the bottom, 21 isn't it correct that the radioactive red area depicted on 22 Exhibit 17 Trinity County is approximately 10 miles to the 23 southwest of the town of Mendota as depicted on Trinity 24 County Exhibit 17? 25 MR. STOKELY: Yes. CAPITOL REPORTERS (916) 923-5447 5044 1 MR. BIRMINGHAM: So, isn't it correct, Mr. Stokely, 2 that if your statement is correct that water runs downhill 3 that the radioactive red area, or that selenium in the 4 radioactive red area if leached out of the soils would 5 migrate to the west? 6 MR. STOKELY: I guess, unless there's something about 7 these groundwater divides, or the way the groundwater goes, 8 or if there's some channel that crosses the divide, I don't 9 know all the details. The only other thing I'd say is that 10 our claim for waste and unreasonable use does not just 11 include the number percentile areas in the radioactive red, 12 it also includes the other two Mary Kay colors up there 13 which are on the west -- east side of the groundwater 14 divide. 15 MR. BIRMINGHAM: But, again, you can't tell us at 16 what rate groundwater on the west side of the groundwater 17 divide within Westlands migrates in an easterly direction? 18 MR. STOKELY: That is correct. I do not know that. 19 MR. BIRMINGHAM: While we have Staff Exhibit 147 out, 20 Mr. Stokely, you were asked a series of questions by 21 Mr. Sexton concerning statements contained in Trinity 22 County Exhibit 15 concerning the presence of arsenic in 23 soils on the west side of the San Joaquin Valley. 24 Do you recall those questions? 25 MR. STOKELY: Yes, in general terms. CAPITOL REPORTERS (916) 923-5447 5045 1 MR. BIRMINGHAM: May I have a moment, Mr. Stubchaer? 2 C.O. STUBCHAER: Yes. 3 MR. BIRMINGHAM: Specifically, Mr. Stokely, looking 4 at Page 4704 of the transcript Mr. Sexton asked you the 5 following question and you provided the following answer. 6 Could you explain -- let me restate that. The transcript 7 indicates that Mr. Sexton asked you the following question 8 and you provided the following answer: 9 (Reading): 10 "Could you explain, sir, in your view how does 11 arsenic, for example, result in water quality 12 degradation in the San Joaquin Valley? And the 13 basis of my question is: Isn't it true that 14 arsenic in the western San Joaquin Valley soil 15 is immobile and, therefore, not a water quality 16 problem?" 17 Mr. Stokely, "I don't know too much about 18 arsenic, but quoting from the Rainbow Report on 19 Page 40 -- 20 Mr. Jackson, "Excuse me, the Rainbow Report 21 is -- which of the Staff's?" 22 Mr. Stokely, "Staff Exhibit 147." 23 Mr. Jackson, "Thank you." 24 Mr. Stokely, "Selenium leads to four elements of 25 primary concern. The others being boron, CAPITOL REPORTERS (916) 923-5447 5046 1 molybdenum, arsenic primarily because it is 2 distributed widely in the study area and because 3 of its potential proximity, water and mud flows 4 have transported the selenium to the valley in 5 particulate and dissolved forms derived from the 6 weathering and erosion of source rocks. 7 Decades of irrigation have transferred soluble 8 selenium from the upper soils to the shallow 9 groundwater where it is -- where its highest 10 concentrations occur generally along the edge of 11 the valley trough in the lower parts of the 12 coast range of alluvial fans." 13 Mr. Stokely, do you recall being asked those 14 questions? 15 MR. STOKELY: Yes. 16 MR. BIRMINGHAM: And providing those answers? 17 MR. STOKELY: Yes. 18 MR. BIRMINGHAM: I'd like to turn to Page 40 of Staff 19 Exhibit 147. Do you have a copy of Staff Exhibit 147 in 20 front of you? 21 MR. STOKELY: Yes. 22 MR. BIRMINGHAM: Now, looking at Page 4704 of Staff 23 Exhibit -- of the transcript, Line 22, you quoted from Page 24 40 of Staff Exhibit 147 as follows: 25 (Reading): CAPITOL REPORTERS (916) 923-5447 5047 1 "Selenium leads to four elements of primary 2 concern the others being boron, molybdenum and 3 arsenic." 4 Did I accurately quote from what was in the 5 transcript? 6 MR. STOKELY: You accurately quoted from the 7 transcript, I'm not sure if that's what was said, or if 8 that's what was intended. It should be "selenium leads the 9 four elements of primary concern." 10 MR. BIRMINGHAM: In fact, you've now pointed this 11 out. Page 40 of Staff Exhibit 147 states: 12 (Reading): 13 "Selenium leads the four elements of primary 14 concern, primarily because it is widely 15 distributed in the study area and because of its 16 proven and potential toxicity." 17 Is that correct? 18 MR. STOKELY: Yes. 19 MR. BIRMINGHAM: Now, isn't it also correct that with 20 respect to the discussion of arsenic on Page 40 of Staff 21 Exhibit 147 it states: 22 (Reading): 23 "Arsenic is of concern primarily in the Tulare 24 and Kern subareas where it is has been observed 25 in elevated concentrations in shallow CAPITOL REPORTERS (916) 923-5447 5048 1 groundwater." 2 Is that correct? 3 MR. STOKELY: Yes. And it goes on to note that in 4 other locations, such as parts of the Westlands Water 5 District, concentrations of hexavalent chromium in shallow 6 water have been observed above usual. 7 MR. BIRMINGHAM: But the discussion of arsenic on 8 Page 40 of Exhibit 147 pertains to the Tulare and Kern 9 subareas; isn't that correct? 10 MR. STOKELY: Primarily. It says that arsenic is a 11 concern "primarily" in those two subareas. 12 MR. BIRMINGHAM: Now, isn't it correct, Mr. Stokely, 13 that the Tulare and Kern subareas, as discussed in Staff 14 Exhibit 147, do not drain into the San Joaquin River? 15 MR. STOKELY: That depends on whether or not -- 16 MR. JACKSON: Yes. Counsel, if you could talk about 17 what year types you're talking about, it might probably 18 make it easier to answer that question. 19 MR. BIRMINGHAM: Well, are you familiar with the 20 areas that are defined by Staff Exhibit 147 as the Tulare 21 and Kern subareas? 22 MR. STOKELY: I see the Tulare Lake bed. Let me go 23 back to the subarea map. It's my understanding that in 24 wetter years there is some drainage from those areas into 25 the San Joaquin, but not normally. CAPITOL REPORTERS (916) 923-5447 5049 1 MR. BIRMINGHAM: Now, I'd like to go back to your 2 contention that the use of water in Westlands is a waste 3 and is unreasonable in violation of Article 10, Section 2, 4 Mr. Stokely. 5 You've proposed that the Water Board delete from 6 the CVP place of use all land within the Westlands with 7 soil concentrations of selenium greater than 0.36 8 micrograms per gram; is that correct? 9 MR. STOKELY: No. We're asking for a finding that it 10 be a waste and unreasonable use to deliver CVP water to 11 those CVP service areas with the soil concentrations 12 greater than .36 micrograms per gram. So we did not 13 restrict it to the Westlands. 14 MR. BIRMINGHAM: Well, let me ask you the question 15 again. This time if you could listen carefully to the 16 question, I don't believe you have responded to my 17 question. 18 Specifically you proposed that the Water Board 19 delete from the CVP place of use all lands within Westlands 20 with soil concentrations of selenium greater than 0.36 21 micrograms per gram? 22 MR. STOKELY: We did ask for that, but we went beyond 23 the Westlands. 24 MR. BIRMINGHAM: Now, Mr. Sexton asked you about the 25 scientific basis for your selection of 0.36 micrograms per CAPITOL REPORTERS (916) 923-5447 5050 1 gram as the threshold. Do you recall those questions? 2 MR. STOKELY: Yes. 3 MR. BIRMINGHAM: And you responded by stating that 4 your selection of that threshold was, and I will quote, "an 5 arbitrary number." 6 Do you recall making that statement? 7 MR. STOKELY: I don't recall using that language, but 8 I did pick it based on my understanding of what would be 9 considered an aberration of normal soil concentrations, the 10 worst 10 percent of those soils. 11 MR. BIRMINGHAM: I'd ask you to look at Page 4712 of 12 the transcript. And, in particular, here I'm referring to 13 the transcript of October 14, 1998. Mr. Sexton asked you 14 the following -- according to the transcript Mr. Sexton 15 asked you the following question and you provided the 16 following answer: 17 (Reading): 18 Mr. Sexton, "What is the scientific basis for 19 the use of .36 micrograms per gram soil salinity 20 for restricting the delivery of water?" 21 Mr. Stokely, "It's the upper decile -- " 22 MR. STOKELY: Decile, that's misspelled. It should 23 be, D-E-C-I-L-E. 24 MR. BIRMINGHAM: "It's upper decile of selenium 25 concentrations in soils in the San Joaquin CAPITOL REPORTERS (916) 923-5447 5051 1 Valley. It's somewhat arbitrary, but I used it 2 because the winter-run biological opinion 3 requires a 90-percent exceedance water forecast 4 for the protection of the winter-run. So I used 5 that very same conservative approach. We did 6 add that concentrations greater than that may 7 constitute a waste and unreasonable use, but 8 that's the one we picked." 9 Do you recall being asked that question and 10 providing that answer? 11 MR. STOKELY: Yes. And I do stand corrected where I 12 said we add that concentrations greater than that may 13 constitute a waste and unreasonable use. What I meant to 14 say was concentrations "lesser than that." I do understand 15 that Mr. Felix Smith was actually asked for a .25 16 micrograms per gram threshold for a finding of waste and 17 unreasonable use. 18 MR. BIRMINGHAM: And, isn't it correct, Mr. Stokely, 19 that you characterized in your answer to Mr. Sexton's 20 question the .36 micrograms per gram of the soil salinity 21 as arbitrary? 22 MR. STOKELY: Apparently, I did. Again, it was a 23 very conservative approach. I think the Board may look 24 into the other evidence presented before them and may come 25 up with a different standard. CAPITOL REPORTERS (916) 923-5447 5052 1 MR. BIRMINGHAM: Now, I'd like to explore this a 2 little further with you, Mr. Stokely. You stated that you 3 selected this criterion .0 -- I'm sorry, 0.36 micrograms 4 per gram soil selenium as the threshold, because the 5 biological opinion for the winter-run requires a 90-percent 6 exceedance water forecast. 7 MR. STOKELY: Yes. 8 MR. BIRMINGHAM: But you would agree with me, 9 wouldn't you, Mr. Stokely, that the exceedance probability 10 contained in the biological opinion for winter-run has 11 nothing to do with the effect of using imported surface 12 water to irrigate lands with concentrations of selenium 13 greater than .36 micrograms per gram? 14 MR. STOKELY: The only relationship between the two 15 is they're both a conservative number in that the 16 winter-run biological opinion says "use a forecast that 17 predicts drought conditions." So that hopefully 90 percent 18 of time there will be more water and things will be better 19 than what we think they're going to be. 20 And in the case of the selenium, the reason I 21 picked the 90-percent exceedance number was, because that 22 shows that those 10 percent of the soils, those worst of 23 the worst are truly an aberration from the soils of the 24 rest of the San Joaquin Valley. And to me that really 25 stood out. But, again, someone else might -- in particular CAPITOL REPORTERS (916) 923-5447 5053 1 the Board, might pick a different standard whether it be 2 higher or lower. 3 MR. BIRMINGHAM: But your selection of that 4 criteria -- excuse me. Your selection of that criterion 5 was not based upon any kind of scientific analysis? 6 MR. STOKELY: Not my scientific analysis. However, 7 one of our exhibits did provide the exceedance numbers for 8 those soil concentrations. And I believe it was our 9 Exhibit 16, which was the map on Page 18 from the Tidball 10 report, which I might add is also the reference document 11 for Figure 5 on Page 28 of the Staff Exhibit 147, the 12 Rainbow Report. 13 And that particular document does give both the 14 soil concentration and the percentile. And, again, I will 15 note, actually, from our Staff Exhibit -- I mean our 16 Trinity County Exhibit 17, the three bright colors, the 17 brightest color is the upper percentile, the worst 1 18 percent of soils. 19 The next color is the worst 95 to 99 percentile. 20 The next worst 4 percent. And then the next color down is 21 the 90 to 95-percent exceedance. And those are the next 22 worst 5 percent. So -- 23 MR. BIRMINGHAM: But, Mr. Stokely, your selection of 24 the worst 10 percent of the lands was not based upon any 25 kind of scientific analysis, was it? CAPITOL REPORTERS (916) 923-5447 5054 1 MR. STOKELY: No. 2 MR. BIRMINGHAM: And that's why you characterized it 3 as "arbitrary"? 4 MR. STOKELY: Yes. But I would also characterize it 5 as conservative, because we can see by these maps there are 6 selenium concentrations in other soils in the vicinity. 7 And depending on the irrigation practices, the groundwater 8 movement, the proximity to water bodies those -- irrigation 9 of those soils may also constitute a waste and unreasonable 10 use. 11 MR. BIRMINGHAM: May I ask that the Court Reporter 12 read back to me the answer to that question? 13 (Discussion held off the record.) 14 C.O. STUBCHAER: Is that satisfactory, 15 Mr. Birmingham? 16 MR. BIRMINGHAM: Yes. Thank you very much, from that 17 I can get the information that I wanted. In response to my 18 last question, Mr. Stokely, you said that the .36 number 19 was conservative. And that depending upon irrigation 20 practices, groundwater movement and the proximity to water 21 bodies, the irrigation of lands with lower concentrations 22 of selenium may also be waste and unreasonable use; is that 23 correct? 24 MR. STOKELY: Yes. 25 MR. BIRMINGHAM: Now, let me ask you: Have you done CAPITOL REPORTERS (916) 923-5447 5055 1 any kind of analysis of the irrigation practices within 2 Westlands Water District? 3 MR. STOKELY: No. 4 MR. BIRMINGHAM: Have you done any kind of analysis 5 concerning groundwater movement in Westlands Water 6 District? 7 MR. STOKELY: No. 8 MR. BIRMINGHAM: And have you done any analysis of 9 the proximity of lands within Westlands Water District to 10 water bodies? 11 MR. STOKELY: No. 12 MR. BIRMINGHAM: So sitting here you can't tell us, 13 even from your layperson's perspective, as a nonsoil 14 scientist whether or not the irrigation of land within 15 Westlands Water District constitutes waste and unreasonable 16 use? 17 MR. STOKELY: We're here to present what information 18 we have to the State Board. And it's up to the State Board 19 to weigh the evidence and make a decision. I am not the 20 final arbiter of these decisions. 21 MR. BIRMINGHAM: And you're not an expert on this 22 issue either, are you, Mr. Stokely? 23 MR. STOKELY: No, I am not. 24 MR. BIRMINGHAM: Now, in response to one of my 25 earlier questions -- may I have a moment? CAPITOL REPORTERS (916) 923-5447 5056 1 C.O. STUBCHAER: Yes. 2 MR. BIRMINGHAM: In response to one of my earlier 3 questions you said in reaching your conclusion, your 4 lay-person conclusion, that the use of water within 5 Westlands Water District is waste and unreasonable use, you 6 relied upon a law review article written by Mr. Felix 7 Smith. Is that correct? 8 MR. STOKELY: That's correct. 9 MR. BIRMINGHAM: That law review article was 10 submitted to the Water Board as Exhibit 22? 11 MR. STOKELY: Yes. 12 MR. BIRMINGHAM: I'd like you to look at Page 48 of 13 Exhibit Trinity County 22. 14 MR. STOKELY: Yes. 15 MR. BIRMINGHAM: Page 48 of Trinity County Exhibit 22 16 states in the first full paragraph: 17 (Reading): 18 "This paper is written with an informed 19 layperson's understanding of water law, a 20 scientist's understanding of biology and a 21 citizen's perplexity at government in action and 22 lack of scientific basis for drainage disposal 23 decision making." 24 Is that correct? 25 MR. STOKELY: That is correct. CAPITOL REPORTERS (916) 923-5447 5057 1 MR. BIRMINGHAM: Now, isn't it correct, Mr. Stokely, 2 that you understand the term "layperson's understanding of 3 water law" to mean that Mr. Smith is not an expert on 4 questions of California Water Law? 5 MR. STOKELY: He is not a lawyer. 6 MR. BIRMINGHAM: Now, last week I asked that a couple 7 of questions be marked. And I asked that they be marked 8 because I wanted to make sure I had a firm understanding of 9 what you were testifying to. 10 In particular, I'd ask you to turn to Page 4702, 11 Line 5. And it may be necessary for us to go back to Page 12 4701, Line 20, where the transcript reports that Mr. Sexton 13 asked you the following questions and you provided the 14 following answers: 15 (Reading): 16 Question: "Which areas currently drain into the 17 San Luis drain and to the former Kesterson 18 Wildlife area?" 19 Mr. Stokely: "I'm not sure of the exact areas. 20 The general location, I believe, is those 21 areas -- is some of the bottom lands near the 22 San Joaquin River. I believe the drain runs 23 somewhere through here, but I'm really not sure, 24 sir." 25 Mr. Sexton: "So you pointed to an area where CAPITOL REPORTERS (916) 923-5447 5058 1 the black line is?" 2 "Yeah -- excuse me. Mr. Stokely: "Yeah." 3 Mr. Sexton: "Is that The Westlands boundary 4 area?" 5 Mr. Stokely: "Yes." 6 Mr. Birmingham: Could I ask the answer be 7 marked for the record?" 8 Do you recall being asked those questions and 9 providing those answers? 10 MR. STOKELY: Yes, I do. And upon further reflection 11 I found that my answer was incorrect. 12 MR. BIRMINGHAM: In fact, you were asked that 13 question three times, weren't you, Mr. Stokely? 14 MR. STOKELY: Yes. 15 MR. BIRMINGHAM: And each time you were asked that 16 question you stated that it was the bottom lands within 17 Westlands Water District that was currently draining into 18 the San Luis drain to the former Kesterson Reservoir; isn't 19 that right? 20 MR. STOKELY: Yes. 21 MR. BIRMINGHAM: And isn't it correct that water from 22 Westlands Water District is not discharged into the San 23 Luis drain? 24 MR. STOKELY: They're under a no-discharge order. 25 MR. BIRMINGHAM: And, in fact, no water has been CAPITOL REPORTERS (916) 923-5447 5059 1 discharged into the San Luis drain since May of 1986; isn't 2 that correct? 3 MR. STOKELY: I don't know. That sounds good to me. 4 MR. BIRMINGHAM: So to the extent your testimony that 5 the use of water within Westlands is wasteful and 6 unreasonable in violation of Article 10, Section 2, was 7 based on your understanding that water was being discharged 8 from Westlands Water District and then flowing into the San 9 Joaquin River, that understanding is wrong? 10 MR. STOKELY: That understanding is wrong. However, 11 that's only part of the argument. The other argument is 12 that there may be groundwater movement, or surface runoff 13 during wet periods that would cause runoff, contaminated 14 runoff into the San Joaquin River. 15 MR. BIRMINGHAM: There may be, but you don't know 16 that, do you, Mr. Stokely? 17 MR. STOKELY: No, I don't. 18 MR. BIRMINGHAM: But you've proposed, or Trinity 19 County has proposed, that a water supply for a very large 20 area of Westlands Water District be terminated? 21 MR. STOKELY: Yes. 22 MR. BIRMINGHAM: May, I have a moment? 23 C.O. STUBCHAER: Yes. Off the record. 24 (Off the record from 11:34 a.m. to 11:35 a.m.) 25 C.O. STUBCHAER: Mr. Birmingham, are you ready to go CAPITOL REPORTERS (916) 923-5447 5060 1 back on the record? 2 MR. BIRMINGHAM: Yes. 3 C.O. STUBCHAER: All right. 4 MR. BIRMINGHAM: At this point, I would like to renew 5 my motion that the evidence presented by Trinity County be 6 excluded. You understand the basis of my motion, I won't 7 rearticulate it. I hope through the cross-examination of 8 these witnesses you will understand the basis of the motion 9 as well as the legal grounds. And so I at this point would 10 like to renew that motion. 11 C.O. STUBCHAER: All right. Any comments before we 12 go off the record? Mr. Nomellini. 13 MR. NOMELLINI: I'd like to oppose the motion. I 14 think that the cross-examination clearly brought out the 15 capability of the witnesses and the extent of their 16 expertise in the various areas and where it isn't. And I 17 think it goes to the weight of the evidence. 18 We hear a lot of testimony, policy statements and 19 opening argument. And you hear it all. And you have to 20 judge all of that. I see no purpose in striking any 21 particular testimony. The particular knowledge that these 22 people have, seems to me to be above the ordinary citizen. 23 It's worth hearing. The Board heard it. And I think the 24 way to handle it is to accord it whatever weight you think 25 is appropriate. CAPITOL REPORTERS (916) 923-5447 5061 1 C.O. STUBCHAER: Mr. Jackson. 2 MR. JACKSON: Yes. I would oppose the striking of 3 the testimony, would oppose the motion to exclude on the 4 same grounds as indicated by Mr. Nomellini. 5 There is no question that in dealing with a case 6 as complex as the 70 percent of California that we're 7 dealing with at this point, that people are required to 8 testify in generalities at times. They're also required to 9 testimony -- every engineer who comes here has testified at 10 some point in regard to their view of the water law. Every 11 lawyer has testified, when they testify. 12 Outside of their purely legal education, clearly 13 in this circumstance this is the position of a subdivision 14 of the State government. They are laying out the situation 15 in Trinity County from which the water has come. Clearly 16 there has been no attempt to exclude that testimony on the 17 grounds that these are not appropriate people, or experts 18 in regard to flow affects on the Trinity River. 19 The question is, whether or not they can make the 20 link that while the Trinity is devastated, in their words, 21 by the taking of water from the Trinity by the CVP, that 22 the San Joaquin is also affected by the application of that 23 water. Their testimony is consistent and supported by 24 testimony that we've heard from many, many experts. It is 25 cited to the Rainbow Report and to the affected water CAPITOL REPORTERS (916) 923-5447 5062 1 bodies lists of the Regional Board. 2 It is extremely consistent with what I understand 3 the testimony to have been, while I was out on Thursday, 4 from Members of the Regional Board, and I see absolutely no 5 authority for excluding the testimony. 6 C.O. STUBCHAER: Mr. Brandt? 7 MR. BRANDT: United States Department of Interior 8 would like to join in general in the motion. And in 9 particular we'd like to just draw attention of the Board to 10 the areas where these witnesses have tried to testify as to 11 law and to any suggestion that that is a fact, that their 12 interpretation of the law is a fact we would particularly 13 object to that. 14 C.O. STUBCHAER: Mr. Sexton? 15 MR. SEXTON: The San Luis and Delta-Mendota Water 16 Authority also join in the motion. The difficulty that 17 we're faced with, obviously, is that we who are conducting 18 the examination of these witnesses don't know what weight 19 the Board is going to assign to the testimony. 20 So as a practical matter, if the Board declines to 21 strike portions of testimony, or the entirety of the 22 testimony, we have very little choice but to continue 23 trying to do our best to poke what holes in the testimony 24 we deem to be appropriate. 25 C.O. STUBCHAER: Thank you, Mr. Sexton. Mr. Herrick? CAPITOL REPORTERS (916) 923-5447 5063 1 MR. HERRICK: I'd like to join in the opposition to 2 the motion. I think it's clear from the earlier 3 discussions last week about what the statute supposedly 4 required or not, that upon objection by the party you'll 5 exclude it, but that's only if you find that the witnesses 6 are not experts. 7 I think it is perfectly appropriate on 8 cross-examination to try to discover what an expert has 9 said is either expert opinion, or reliance on other 10 information. But I think it's -- I don't think there are 11 reasonable interpretation of what's been given today can be 12 that they're not experts in some field. So, therefore, I 13 believe that the motion cannot be granted, you cannot 14 strike all the testimony. And I believe what's appropriate 15 is for the Board to give the proper weight to the testimony 16 based upon the cross-examination. 17 MR. BIRMINGHAM: I guess I'm halfway -- 18 C.O. STUBCHAER: Just a moment. Anyone else? I'll 19 give you the last word, Mr. Birmingham. 20 MR. SMITH: Can a citizen say something here? 21 C.O. CAFFREY: No. 22 MR. BIRMINGHAM: I guess, Mr. Stubchaer -- 23 C.O. CAFFREY: I did not mean to be rude to 24 Mr. Smith, but this is a quasi judicial proceeding. And 25 these are identified parties in these proceedings and it CAPITOL REPORTERS (916) 923-5447 5064 1 would be inappropriate to have you testify on the basis of 2 raising your hand, sir. 3 C.O. STUBCHAER: Mr. Birmingham? 4 MR. BIRMINGHAM: Mr. Stubchaer, I guess I'm halfway 5 there, because Mr. Herrick has just acknowledged in his 6 statement, if these people aren't qualifiable as experts, 7 then the evidence shall be excluded. 8 I think by their own admission, they've said 9 they're not experts in the law. They said they're not 10 expert engineers. They're not expert soil scientists. 11 They're not expert hydrologists. That's what these 12 opinions go to. And Mr. Herrick -- and, obviously, these 13 are two very bright people. And they have more knowledge 14 than the average layperson that you're going to bring in 15 off the street, or as Mr. Stokely said, "the average 16 layperson in Trinity County." 17 But that's not what constitutes an expert for 18 purposes of offering to a judicial -- or quasi judicial 19 body expert opinion. They've admitted they're not experts. 20 And Mr. Herrick now agrees with me they can't with 21 qualified as experts, the evidence shall be excluded. 22 Now, I think the point Mr. Sexton made is the 23 correct one. If the Board decides to exclude this 24 evidence, and I haven't started to make arguments yet on 25 the grounds of relevancy, but if the Board decides to CAPITOL REPORTERS (916) 923-5447 5065 1 exclude this evidence, I can sit down and we can go on. If 2 the Board doesn't exclude this evidence, then I'm going to 3 continue to cross-examine these witnesses. 4 They have made a very serious allegation that they 5 want to take away a significant portion of my client's 6 water supply. And I would be doing a disservice for my 7 client if I did not try, as Mr. Sexton says using the 8 vernacular, to punch as many holes in that testimony as I 9 can. 10 So as long as I'm asking relevant questions, I 11 expect to be permitted to continue my cross-examination so 12 long as I'm not being repetitive. We've got a lot more 13 material to go through here. And I think that on each one 14 of these areas I'm going to make the same showing, which I 15 submit, we've already made. They're not experts, they have 16 no personal knowledge. 17 You yourself last week, Mr. Stubchaer, observed 18 that in responding to many of the questions that were asked 19 of Mr. Stokely by Mr. Porgans, Mr. Stokely was merely 20 reading what he had in front of him. I'm not challenging 21 their ability to read, but an ability to read does not an 22 expert make you. 23 C.O. STUBCHAER: Thank you, Mr. Birmingham. What 24 we're going to do is take our lunch break and during the 25 lunch break hour we'll deliberate on the motion. And we'll CAPITOL REPORTERS (916) 923-5447 5066 1 give our decision when we reconvene at 1:00. 2 (Luncheon recess.) 3 ---oOo--- 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 5067 1 TUESDAY, OCTOBER 20, 1998, 1:08 P.M. 2 SACRAMENTO, CALIFORNIA 3 ---oOo--- 4 C.O. STUBCHAER: Good afternoon. We're going to 5 reconvene the hearing. Mr. Birmingham. 6 MR. BIRMINGHAM: Mr. Stubchaer, before the lunch, I 7 made a motion. During the recess I had a chance to confer 8 with Mr. Jackson and I'd like to -- 9 UNIDENTIFIED LADY: We can't hear you. 10 C.O. STUBCHAER: It's on. 11 MR. BIRMINGHAM: Thank you. I was stating that 12 before the lunch recess I had made a motion in which the 13 United States Department of the Interior joined. During 14 the lunch recess I had an opportunity to confer with 15 Mr. Jackson. And I believe we have a stipulation that will 16 obviate the need for the Board to rule on our motion. 17 And if I may, I'll state my understanding of the 18 stipulation. And I'm confident that if Mr. Jackson feels 19 that I'm not stating it accurately, he will jump in. 20 C.O. STUBCHAER: Please, do. 21 MR. BIRMINGHAM: The stipulation that we have 22 discussed is as follows: The Trinity County exhibits 23 containing the written testimony of Mr. Whitridge and 24 Mr. Stokely will be withdrawn. The oral examination of the 25 witnesses will also be stricken. CAPITOL REPORTERS (916) 923-5447 5068 1 Mr. Jackson will take Trinity County Exhibits 1 2 and Trinity County 15, which are the written testimony, and 3 will redact from them all of the opinions with the 4 exception of opinions pertaining to the Trinity River and 5 the impact of the flow study on the Trinity River and will 6 resubmit those to the Water Board. 7 Trinity County would then ask that the Board take 8 official notice of the government publications that were 9 submitted in connection with its testimony. And 10 specifically those would include Trinity Exhibit 2, 3, 4, 11 5, 6, 7, 8, 9, 10, 11, 12, 16, 20, 23, 24, 25, 26, 27, 28, 12 and 29. 13 Moreover, Trinity County would ask the Water Board 14 to take official notice of some of the other written 15 exhibits that were submitted, in particular, Exhibits 19, 16 21 and 22, take official notice of the existence of these 17 documents, not necessarily their contents. 18 And, then, we would stipulate to the admission -- 19 also to the admission, of the maps which have been marked 20 for identification as Trinity County Exhibits 17 and 18. 21 C.O. STUBCHAER: Is that it? 22 MR. JACKSON: That's the stipulation. 23 C.O. STUBCHAER: I'd like -- excuse me, Mr. Jackson. 24 There's one thing I didn't get. What was Mr. Jackson going 25 to redact from the written exhibits? CAPITOL REPORTERS (916) 923-5447 5069 1 MR. JACKSON: What Mr. Jackson was going to redact 2 was the information in regard to the opinion of these 3 witnesses in regard to the -- 4 MR. BIRMINGHAM: Everything outside the Trinity 5 basin. 6 MR. JACKSON: -- everything outside the Trinity 7 basin. We'll put that on in some other fashion. There is 8 no limitation on that by this stipulation. And I believe 9 that we have agreed as part of this stipulation that the 10 Board will take notice in some fashion of Trinity's 11 position that use of water in these areas is waste and 12 unreasonable use, but not the underlying opinion in these 13 particular documents. 14 C.O. STUBCHAER: Yes, Mr. Birmingham? 15 MR. BIRMINGHAM: A representative of the Trinity 16 County Board of Supervisors Advisors here has made a policy 17 statement. 18 C.O. STUBCHAER: Yes. 19 MR. BIRMINGHAM: That is the position of the County 20 of Trinity. And I think it is appropriate for the Water 21 Board to take official notice that that is the position of 22 the County of Trinity. 23 C.O. STUBCHAER: All right. Mr. Brandt? 24 MR. BRANDT: Department of the Interior would 25 stipulate to that with just the one added redaction which CAPITOL REPORTERS (916) 923-5447 5070 1 is there are a couple places where the witnesses have 2 testified as to what a legal opinion that the Solicitor has 3 means. So we have no problem putting in those opinions, 4 but that particular thing is the other thing that we want 5 to add. And other than that, we join in the motion. We 6 also stipulate -- make the same stipulation. 7 C.O. STUBCHAER: Is that acceptable? 8 MR. JACKSON: That is acceptable. It is our 9 understanding that the Solicitor's opinion speaks for 10 itself. And we will withdraw our characterization of what 11 we think he meant. 12 MR. BIRMINGHAM: And under the stipulation that 13 Mr. Jackson and I have discussed, those opinions as well as 14 all of the opinions -- in fact, the testimony that was 15 received from these witnesses on October 14, 1998, and this 16 morning would be stricken. 17 C.O. STUBCHAER: All right. Anyone else wish to 18 comment on this? 19 Mr. Nomellini. 20 MR. NOMELLINI: I object to the stipulation. We 21 spent the time. We heard the testimony under oath. It's 22 got a certain value. We heard the cross-examination. 23 There is a lot of that in the record that helps us 24 understand what the nature of the problems are. And I 25 don't think these parties can stipulate at this point to CAPITOL REPORTERS (916) 923-5447 5071 1 eliminate it. So I would like to note my objection to the 2 stipulation on the record. 3 C.O. STUBCHAER: Your objection is noted. Anyone 4 else? 5 Mr. Sandino. 6 MR. SANDINO: I'm not objecting to the stipulation, 7 but I just want a clarification. Mr. Jackson, are you 8 proposing to submit your testimony after you modify it 9 within a certain date and then we would go through the 10 presentation again? 11 MR. JACKSON: No. We were proposing to modify it to 12 the acceptance of the parties, Westlands. I believe 13 Mr. Sexton joined the objection. I'm certain that the 14 United States government did. Within the parameters of the 15 part that referred to the Trinity goes in, the part that 16 referred to these people's opinion of the information comes 17 out in regard to the San Joaquin. The underlying 18 information in the evidence goes in. 19 MR. SANDINO: Okay. Thank you. 20 C.O. STUBCHAER: Anyone else? 21 Ms. Leidigh. 22 MS. LEIDIGH: Yeah. 23 MR. BIRMINGHAM: Just so I can make sure we're clear 24 on the record, Mr. Stubchaer. Mr. -- Mr. Jackson says that 25 the underlying information in the reports goes in. The CAPITOL REPORTERS (916) 923-5447 5072 1 Board would be taking official notice of the existence of 2 those reports and the other exhibits that we've identified 3 as coming in. 4 MR. JACKSON: To give whatever weight to it that they 5 find in there. 6 C.O. STUBCHAER: Right. And while you're up there, 7 Mr. Birmingham, as far as the cross-examination is 8 concerned, we would want you to take as much time as 9 necessary. And we're not swayed by any argument that the 10 cross-examination would be shortened, but would you have 11 more cross-examination if the stipulation was entered into? 12 MR. BIRMINGHAM: No, I would not. I would not have 13 any further cross-examination. 14 C.O. STUBCHAER: Okay. 15 MR. BIRMINGHAM: But if the stipulation is not 16 entered into, then, yes, I will have more 17 cross-examination. 18 C.O. STUBCHAER: I understand. 19 MR. BIRMINGHAM: And I was accused of trying to 20 blackmail the Water Board earlier when I made that 21 observation, and it was not intended as blackmail at all. 22 C.O. STUBCHAER: No. We didn't think it was, but we 23 also reacted that under threat of blackmail sometimes we 24 act negatively. 25 C.O. CAFFREY: We always blackmail last. CAPITOL REPORTERS (916) 923-5447 5073 1 C.O. STUBCHAER: Mr. Herrick. 2 MR. HERRICK: I'd just like some clarification. Are 3 these two parties stipulating to remove from the record 4 testimony of cross-examination from other parties? 5 C.O. STUBCHAER: Mr. Birmingham, Mr. Jackson, did you 6 hear the question? 7 MR. BIRMINGHAM: Yes, I did. And our stipulation 8 would relate to all of the cross-examination of these 9 witnesses pertaining -- by the parties, yes. Because the 10 underlying evidence on which the cross-examination was 11 being conducted, Exhibits 1 and 15, are being withdrawn. 12 And these two witnesses would not be offered as parties on 13 those subjects. 14 C.O. STUBCHAER: Ms. Leidigh. 15 MS. LEIDIGH: I need a little more clarification. 16 Perhaps, both of you could help me with this. You're 17 saying that 1 and 15 as they're written would be withdrawn, 18 but that certain materials would be redacted from 1 and 15 19 and then they would be brought back. So we recognize that 20 there are certain things in there that are still of value. 21 Is it your understanding that other parties will 22 be able to cross-examine these witnesses further today with 23 respect to the materials that would stay in regarding the 24 Trinity River to the extent that they know about these 25 things? Or are you saying that there would not be any CAPITOL REPORTERS (916) 923-5447 5074 1 further cross-examination of these witnesses even with 2 respect to the things that will be in there after 3 Mr. Jackson has redacted the other material? 4 MR. BIRMINGHAM: Mr. Jackson -- I've not spoken to 5 Mr. Minasian about this, but he is the last attorney who is 6 going to cross-examine these witnesses. If Mr. Minasian 7 were not going to ask them questions about the Trinity 8 River, then that's a moot question, because all of the 9 other parties have already had their opportunity to 10 cross-examine them on issues pertaining to the Trinity and 11 have not. 12 And so I would say that what we're anticipating is 13 that no other party would cross-examine them on the amended 14 Exhibits 1 and 15 after they are submitted, because they 15 aren't going to be any different than what's already been 16 submitted. 17 C.O. STUBCHAER: Ms. Leidigh, what would be the 18 status of the written record if this stipulation is agreed 19 to by the Board? Will the materials which were stricken, 20 if that's the right word, remain in there in cross-out 21 type, or will they just be deleted from the transcript? 22 MS. LEIDIGH: The process that we have been using in 23 this hearing is to leave the materials in in a cross-out 24 type to show that they are stricken. 25 MR. BIRMINGHAM: I believe, Mr. Stubchaer, that that CAPITOL REPORTERS (916) 923-5447 5075 1 would be the appropriate means of dealing with this 2 stipulation. 3 C.O. STUBCHAER: Mr. Jackson? 4 MR. JACKSON: I believe it would be the appropriate 5 means. I believe it would take a substantial amount of 6 time and effort on the part of all involved in order to 7 separate out which stays in as it relates to the Trinity 8 and which comes out. 9 MR. BIRMINGHAM: Mr. Jackson and I apparently have a 10 misunderstanding about the stipulation. My understanding 11 is that all of the written summaries -- excuse me, all of 12 the oral examination would come out. I don't believe that 13 there has been any cross-examination on issues pertaining 14 to the Trinity. 15 If there is, I'm sure Mr. Jackson and I could sit 16 down and identify it and leave it in. And I will represent 17 to the Board and to the parties and any party who wants to 18 do this, can join us, that we'll sit down and go through it 19 line by line together. 20 MR. JACKSON: There clearly is evidence in the 21 testimony that relates to the Trinity River. 22 MR. BIRMINGHAM: And then we will submit the redacted 23 version to the Court Reporter after providing the Board 24 with a copy, so that the Court Reporter will know what's to 25 be redacted and what is not to be redacted. CAPITOL REPORTERS (916) 923-5447 5076 1 C.O. STUBCHAER: Ms. Leidigh -- excuse me, 2 Mr. Nomellini. 3 MR. NOMELLINI: If by chance you were willing to go 4 along with this unique process, a stipulation by some of 5 the parties and not all, then, we, of course, would want to 6 reserve the right to cross-examine on any redacted 7 exhibits, text, or what have you. And to the extent 8 Mr. Birmingham puts his testimony in, we want to 9 cross-examine him, too. 10 C.O. STUBCHAER: Understood. Would the panel be 11 available for -- 12 MR. BIRMINGHAM: Excuse me, Mr. Stubchaer? 13 C.O. STUBCHAER: Yes. 14 MR. BIRMINGHAM: I would propose to strike all of my 15 cross-examination of these witnesses whether it pertains to 16 the Trinity River or San Joaquin River. I don't think I've 17 asked many questions related to things concerning the 18 Trinity, with the exception of their qualifications, but 19 that would be redacted. 20 C.O. STUBCHAER: Ms. Leidigh, if the Board chooses to 21 accept the stipulation, what action do we take? 22 MS. LEIDIGH: I think you can simply advise the 23 parties that you are choosing to accept it. Now, with 24 respect to Mr. Nomellini's concern, I think I'd like to 25 point out that if Mr. Jackson is redacting material, and CAPITOL REPORTERS (916) 923-5447 5077 1 he's representing that party who presented it, that I don't 2 think that other parties can assume that material is still 3 in the record and capable of being cross-examined further, 4 unless those parties wish to bring it in themselves. 5 C.O. STUBCHAER: And what would the status be if the 6 Board had ruled along the lines, just a hypothetical, had 7 ruled along the lines of this stipulation, would that then 8 open up the cross-examination issue? 9 MS. LEIDIGH: I don't think I understand the 10 question. 11 MR. BIRMINGHAM: I believe I understand -- 12 C.O. CAFFREY: If I may try it. In other words, if 13 the Board, without the stipulation, had just made a ruling 14 exactly equal to the stipulation, would that allow for 15 cross-examination? 16 C.O. STUBCHAER: As Mr. Nomellini was requesting. 17 MS. LEIDIGH: I think it would allow for 18 cross-examination with respect to the issues on the Trinity 19 River -- 20 MR. BIRMINGHAM: Mr. Stubchaer -- 21 MS. LEIDIGH: -- to the extent that there is any 22 left. 23 MR. BIRMINGHAM: I think that's the main point, to 24 the extent that there is any left. These, virtually all of 25 the parties with the exception of the Westlands and the CAPITOL REPORTERS (916) 923-5447 5078 1 Exchange Contractors, have concluded their 2 cross-examination. If the stipulation is accepted by the 3 Water Board, I presume Mr. Jackson is not going to recross 4 these witnesses. So there would never -- actually -- 5 C.O. STUBCHAER: Redirect. 6 MR. BIRMINGHAM: Excuse me, redirect. So there would 7 never be an opportunity for these parties to recross these 8 witnesses as witnesses for Trinity County. 9 C.O. STUBCHAER: All right. 10 MR. BIRMINGHAM: So if the Water Board were to 11 hypothetically make a ruling along the lines of the 12 stipulation that we've proposed, the parties would not have 13 a right to further cross-examine. What they would have a 14 right to do is if we, pursuant to the stipulation, proposed 15 to redact something that they understood should be left in, 16 they could come to the Water Board -- to the Board, excuse 17 me, and then argue as to why that should be left in under 18 the ruling. 19 C.O. STUBCHAER: Okay. Thank you for everyone's 20 participation on this matter. And we're going to go off 21 the record for a moment. 22 (Off the record from 1:26 p.m. to 1:29 p.m.) 23 C.O. STUBCHAER: Back on the record. The Board will 24 accept the stipulation. Thank the parties for working it 25 out, saves us making a ruling. CAPITOL REPORTERS (916) 923-5447 5079 1 And, Ms. Whitney? 2 MS. WHITNEY: Mary has informed me that the 3 transcripts have already been sent out for last week. So 4 they'll have to be amended. I don't know what arrangements 5 would be regarding this. 6 C.O. STUBCHAER: Mr. Birmingham? 7 MR. BIRMINGHAM: Again, speaking hypothetically, if 8 the Board had granted our motion it would have been 9 necessary for amended transcripts to go out. So I don't 10 think the Board accepting the stipulation as opposed to 11 make a ruling on a motion to strike would change the 12 result. 13 C.O. STUBCHAER: Presumably somebody paid for the 14 expedited transcript. Are they going to have to pay twice, 15 then? 16 MR. BIRMINGHAM: Well, I paid for the expedited 17 transcript. Well, excuse me, to state it more accurately: 18 Westlands Water District. And I don't think they'll 19 request this on an expedited basis. 20 C.O. STUBCHAER: All right. 21 C.O. CAFFREY: Mr. Chairman? 22 C.O. STUBCHAER: Mr. Caffrey. 23 C.O. CAFFREY: I was just wondering what this means 24 in terms of the timing of the submission of the exhibits 25 with respect to the ones that you're going to meet on and CAPITOL REPORTERS (916) 923-5447 5080 1 review and modify. 2 Is it your anticipation that it will be submitted 3 in the next few hours, before the close of this case in 4 chief? I would be hopeful it would be submitted before the 5 close of this phase just from a good-housekeeping view. 6 MR. BIRMINGHAM: It, certainly, can be done by the 7 end of this phase. I don't think that it would be done 8 before the end of the day. We can do it before the end -- 9 actually, I would think we could do it before the end of 10 the week. 11 C.O. CAFFREY: As a matter of fact, my real concern 12 was even though I said "case in chief," my real concern was 13 hopefully getting it before the completion of the phase. 14 MR. JACKSON: I believe that we can do it before the 15 end of the phase. The question of whether we can do it by 16 the end of this week, is one of whether we can get 17 everybody together given that this -- we are going to 18 continue from herein. All of us are going to be here. 19 MR. BIRMINGHAM: I'm going to go home and go to bed. 20 MR. JACKSON: Gosh. For the record, I want it 21 understood that there will be -- there is still an 22 opportunity for rebuttal in this phase and there is still 23 an opportunity for closing arguments for this phase. 24 C.O. STUBCHAER: That's correct. 25 MR. JACKSON: And we intend to take part in those. CAPITOL REPORTERS (916) 923-5447 5081 1 C.O. STUBCHAER: That's fine. 2 MR. BIRMINGHAM: And, Mr. Stubchaer, I wonder if now 3 would be appropriate for the County of Trinity to ask the 4 Water Board to take notice -- 5 C.O. STUBCHAER: Mr. Birmingham, I thought the first 6 thing we would do would be to ask Mr. Minasian if he had 7 any cross-examination. 8 MR. MINASIAN: Thank you, Mr. Chairman. I do not. I 9 was only going to cross-examine on the San Joaquin River 10 issue. 11 C.O. STUBCHAER: All right. That concludes the 12 cross-examiners. Now, please, go ahead, Mr. Birmingham. 13 MR. BIRMINGHAM: I wonder if now would be the 14 appropriate time for the County of Trinity -- 15 MR. JACKSON: We would ask to move all of the -- 16 C.O. STUBCHAER: Well, if you're going to move the 17 exhibits -- 18 MR. JACKSON: Yes. 19 C.O. STUBCHAER: -- then we do have to ask if you 20 have any redirect. 21 MR. JACKSON: I have no redirect. 22 C.O. STUBCHAER: Okay. Go ahead. 23 MR. BIRMINGHAM: I believe that the stipulation is 24 that the County of Trinity will ask that the Board take 25 official notice of Exhibits 2 through 12 and Exhibits 16 CAPITOL REPORTERS (916) 923-5447 5082 1 through 29. 2 MS. LEIDIGH: You have 16 and then 17 and 18 were 3 maps, which you said you would stipulate to. 4 MR. BIRMINGHAM: Yes. 5 MS. LEIDIGH: So are you saying official notice, or 6 just exhibits in evidence? 7 MR. BIRMINGHAM: I'm sorry. They would be stipulated 8 to as exhibits in evidence. 9 MS. WHITNEY: The Chair previously denied the 10 submission of Exhibit 18 after objection. 11 MR. BIRMINGHAM: I don't believe there had been a 12 motion to introduce it. I believe that my objection at the 13 time was a reference to the exhibit during the oral 14 presentation of the written summary. Subsequently, there 15 were questions about it, but the stipulation that we're now 16 making is that it will be admitted over my articulate and 17 strenuous objection. 18 C.O. STUBCHAER: Mr. Jackson? 19 MR. JACKSON: I agree, he articulately and 20 strenuously objected. He's now articulately and 21 nonstrenuously withdrawing his objection. 22 C.O. STUBCHAER: Okay. Ms. Leidigh, should we rule 23 on these now, or defer ruling until later in this phase? 24 MS. LEIDIGH: You can rule on these now. I don't 25 think you will not be able to rule on Exhibits 1 and 15. CAPITOL REPORTERS (916) 923-5447 5083 1 MR. JACKSON: That's correct. 2 MS. LEIDIGH: Until you've received the versions from 3 which materials have been redacted. 4 MR. JACKSON: That is correct. We would move all of 5 the exhibits with the exception of 1 and 15 that have been 6 mentioned. 7 MR. BIRMINGHAM: And 13 and 14 have also been 8 excluded. 9 MR. JACKSON: Yes. And they will be 1 and 15 will be 10 brought back to you. We will make a specific motion to 11 admit them in their redacted version. 12 C.O. STUBCHAER: Any objections? 13 MR. SANDINO: Mr. Chairman? 14 C.O. STUBCHAER: Mr. Sandino. 15 MR. SANDINO: I have an objection. In the past you 16 have let Board staff and the Board itself ask 17 cross-examination questions. I didn't hear whether or not 18 you wanted to. I just thought that should be clarified. 19 C.O. STUBCHAER: Thank you for reminding me, 20 Mr. Sandino. It's my oversight. Does the Staff have any 21 cross-examination questions? 22 MR. HOWARD: No questions. 23 MS. LEIDIGH: Staff has none. 24 C.O. STUBCHAER: The Board? The suspense. 25 MEMBER BROWN: No. CAPITOL REPORTERS (916) 923-5447 5084 1 C.O. STUBCHAER: Okay. Thank you, Mr. Sandino. 2 Okay, Mr. Nomellini. 3 MR. NOMELLINI: I'm going to quote my objection, I 4 think it was there before, to any withdrawals. I do not 5 object to the introduction. 6 C.O. STUBCHAER: As stated previously, your objection 7 is noted on the record, Mr. Nomellini. 8 MR. NOMELLINI: Thank you. 9 C.O. STUBCHAER: Exhibits are noticed, or accepted as 10 the case may be. And I'd like to tell the Members of the 11 Panel, Mr. Modine and Mr. Whitridge and Mr. Stokely, thank 12 you for your participation. You've done a lot of work for 13 Trinity County. We understand your heartfelt endeavors and 14 welcome to the Water Board's world of legalities. So thank 15 you. 16 MR. STOKELY: Thank you. 17 MR. WHITRIDGE: Thank you. 18 MR. MODINE: Thank you. 19 MR. JACKSON: There is one other item. There was a 20 motion filed on June 23rd, 1998, to include another 21 document by reference, which is the Water Quality Control 22 Plan for the North Coast Region. And I understand there's 23 no objection to that being included by reference in the 24 file. 25 C.O. STUBCHAER: Any objections? CAPITOL REPORTERS (916) 923-5447 5085 1 MS. WHITNEY: Do you have an exhibit number assigned 2 to that? 3 MR. JACKSON: I believe it would be number -- 4 MS. WHITNEY: 30? 5 MR. JACKSON: -- 30. 6 C.O. STUBCHAER: Okay. 7 MS. WHITNEY: Can we -- 8 MR. JACKSON: And thank you all. 9 MS. WHITNEY: Mr. Stubchaer? 10 C.O. STUBCHAER: Ms. Whitney. 11 MS. WHITNEY: Can we reiterate which exhibits were 12 accepted, just for the record? I've got Exhibits 2 through 13 14, Exhibits 16 through 30. 14 C.O. STUBCHAER: Did you differentiate between 15 official notice and accepting in the record, or is that the 16 same thing? 17 MS. LEIDIGH: 13 and 14 were excluded. I can go 18 through it if you would like. 19 MR. JACKSON: 1 and 15 are the testimony that need to 20 be redacted. 13 and 14 are the qualifications, which would 21 probably be resubmitted with 1 and 15 at the time that we 22 have finished the redaction. Because I believe, then, the 23 argument would be from Westlands and the Government and 24 whoever else has joined, that the qualifications would then 25 fit the testimony. CAPITOL REPORTERS (916) 923-5447 5086 1 C.O. STUBCHAER: Without objection, it's accepted. 2 MR. JACKSON: Thank you. 3 C.O. STUBCHAER: Well, that concludes this panel. 4 Thank you very much. I'll return the gavel back to our 5 Chair. 6 MR. MODINE: My fellow Board Member Stan Plowman 7 (phonetic) who sits on the North Coast Board sends his 8 best. 9 C.O. CAFFREY: Thank you, sir. 10 MR. MODINE: I know a number of you know him. 11 C.O. CAFFREY: We do. And you can, certainly, tell 12 him that we send our best. It's been a long time since 13 we've seen him. 14 All right. I understand that Mr. Sexton has 15 something, perhaps, to propose, and Mr. Brandt, with regard 16 to the order of what would be the next case in chief. 17 Mr. Brandt. 18 MR. BRANDT: On behalf of Mr. Sexton and myself, we'd 19 like to propose that Mr. Sexton's witness, San Luis and 20 Delta-Mendota Water Authority go next. And then our 21 witnesses will start first thing tomorrow morning. 22 C.O. CAFFREY: All right, sir. Is there any 23 objection to this slight change in order? Hearing and 24 seeing none, we will proceed. 25 Good afternoon, Mr. Sexton. CAPITOL REPORTERS (916) 923-5447 5087 1 ---oOo--- 2 CASE IN CHIEF SAN LUIS AND DELTA-MENDOTA WATER AUTHORITY 3 BY MICHAEL SEXTON 4 MR. SEXTON: Good afternoon, Mr. Caffrey and Members 5 of the Board. My name is Michael Sexton. This testimony 6 is on behalf of the San Luis and Delta-Mendota Water 7 Authority. The testimony will be given by Joseph McGahan, 8 who is a civil engineer and serves as the drainage 9 coordinator for the Grassland Bypass Project. 10 C.O. CAFFREY: Has Mr. McGahan taken the oath? 11 MR. SEXTON: He has not, yet. 12 C.O. CAFFREY: Please, rise, sir. Raise your right 13 hand. Do you promise to tell the truth in these 14 proceedings? 15 MR. MCGAHAN: I do. 16 C.O. CAFFREY: Thank you, sir. Please, be seated. 17 MR. SEXTON: Earlier on in the phase, the Board heard 18 some testimony regarding the Grassland Bypass Project in 19 cross-examination of Central Valley Regional Water Quality 20 Control Board Members who were called by Stockton East. 21 What we're going to try to do today is deliver 22 some testimony on behalf of the Grassland Bypass Project to 23 explain to the Board what the project was established to 24 achieve and what it has achieved in its very short time 25 period. CAPITOL REPORTERS (916) 923-5447 5088 1 The Grassland farmers, who are members of that 2 project, have adopted farm level district and regional 3 methods to achieve water quality objectives while 4 maintaining agricultural production in the region. We 5 believe that the methods are consistent with the 6 recommendations of the San Joaquin Valley Drainage Program, 7 the Rainbow Report and the Regional Board's basin plan and 8 also the waste discharge requirements, which have been 9 adopted on the project by the Regional Board. 10 And at the end of the testimony we will ask this 11 Board to find that the farmers are adopting farm-level 12 methods to achieve these water quality objectives. And we 13 will also ask that this Board find and direct that matters 14 relating to drainage management be left with the Regional 15 Board to continue. 16 The reason that we will ask that is that the 17 farmers who are involved in the Grassland Bypass Project 18 need some certainty in what they are doing. For example, 19 the Panoche Water District has recently had approved by its 20 farmers a Proposition 218 assessment levied on all farmers 21 in the District to the tune of five million dollars for 22 recycling drainage water and working through this Grassland 23 Bypass Project to recycle drainage water and achieve the 24 water management activities that are important to them all. 25 Districts such as Fire Buck in our Water District CAPITOL REPORTERS (916) 923-5447 5089 1 have adopted what we call "zero-tailwater policy" where 2 they just absolutely prohibit the runoff of tailwater from 3 lands. And all of the members of the Bypass Project have 4 expended hundreds upon hundreds of thousands of dollars in 5 trying to achieve drainage management activities. 6 With that brief introduction, I'd like to call 7 Mr. Joseph McGahan at this time to deliver the testimony of 8 the San Luis and Delta-Mendota Water Authority. 9 Mr. McGahan, please, refer to what has been marked 10 as San Luis and Delta-Mendota Water Authority Exhibit A -- 11 8. Is that a true and correct copy of your resume and 12 statement of qualifications? 13 MR. MCGAHAN: Yes, it is. 14 MR. SEXTON: And, sir, I would refer you to what has 15 been marked as San Luis and Delta-Mendota Water Authority 16 Exhibit 9; is that a true and correct copy of your 17 testimony in this matter? 18 MR. MCGAHAN: Yes, it is. 19 MR. SEXTON: Mr. McGahan, could I ask you to, please, 20 summarize your testimony from Exhibit 9. 21 MR. MCGAHAN: Thank you. 22 Mr. Chairman, Members of the Board, my name is 23 Joseph C. McGahan. I'm a civil engineer. I work for 24 Summers Engineering in Hanford, California. I've been 25 working in the field of water resources for 27 years. And CAPITOL REPORTERS (916) 923-5447 5090 1 currently I serve as drainage coordinator for the Grassland 2 basin drainers. We call ourselves the grass and area 3 farmers. 4 In March of 1996 we formed a regional drainage 5 entity to try to manage drainage discharges from an area in 6 the west side of the San Joaquin Valley. On the board 7 we've shown Figure Number 2 from San Luis and Delta-Mendota 8 Water Authority Exhibit Number 10. In the -- this is a map 9 which extends from an area around Mendota. On the bottom 10 of the map to Highway 140, on the upper part of the map 11 it's bounded on the east side by the San Joaquin River and 12 on the west side by the Interstate 5. 13 This is an area that's been identified by the 14 Regional Board and others as the Grassland Watershed. It's 15 got a little bit of a misnomer, because the true hydrologic 16 watershed is larger than this. But this is generally an 17 area in the bottom of the valley floor which discharges 18 various types of drainage water through Mud and Salt 19 Sloughs. Salt Slough, this location. Mud Slough this 20 location here. And ultimately those two discharge into the 21 San Joaquin River. 22 This is a fairly complicated watershed in that 23 there is agricultural activity, irrigated agricultural 24 farming. The green areas are wetland areas, both Grassland 25 Water District private duck clubs and State and Federal CAPITOL REPORTERS (916) 923-5447 5091 1 refuges. Right up in the middle of the upper refuge area 2 is Kesterson Reservoir. The San Luis drain is shown in a 3 portion here in yellow. This area -- if I could have the 4 next overhead. 5 MR. SEXTON: The drain was in red. 6 MEMBER BROWN: Is there yellow on that or is that -- 7 MR. MCGAHAN: Actually, it's intended to be an orange 8 color. There is a red color down here. This is intended 9 to be orange. 10 MR. NOMELLINI: Was there an exhibit number on that? 11 C.O. CAFFREY: Yes. He gave it. Could you repeat 12 the exhibit number, again, Mr. McGahan? 13 MR. MCGAHAN: It was Figure 2 of San Luis and 14 Delta-Mendota Water Authority Number 10, Exhibit Number 10. 15 This is Figure 1 of San Luis and Delta-Mendota 16 Water Authority Exhibit Number 10. This is a blowup of 17 what we call a grassland drainage area. And these two 18 areas are rather complicated, but there is a difference 19 that we need to keep in mind as I go through this. 20 The grassland drainage area, which is shown on 21 Figure 1 here, is approximately 100,000-acre area comprised 22 of several different agencies. We have Charleston Drainage 23 District on the west side, the Pacheco Water District, 24 Panoche Drainage District, Broadview Water District, 25 Firebaugh Canal Water District and an area known as a CAPITOL REPORTERS (916) 923-5447 5092 1 Camp-13 Drainage Area. 2 I would like to note that the Draft EIR discusses 3 drainage on the west side, but does not discuss, in 4 particular, the history of the Grassland basin drainage. 5 Maybe, Mike, if we could go back to Figure 2. This is 6 Figure 2 of San Luis and Delta-Mendota Water Authority 7 Exhibit Number 10. 8 Historically, the lands within the Grassland 9 drainage area -- this is the 100,000-acre area shown on the 10 bottom of the map, have had freshwater table problems, have 11 discharged that water prior to 1985, prior to the discovery 12 of selenium in drainage waters. Those waters were 13 discharged into the grassland and wetland areas. And, in 14 fact, were their water supplies. 15 When selenium was discovered in drainage waters 16 that were discharged from Westlands Water District through 17 the San Luis drain into Kesterson Reservoir, and those 18 waters were discovered to be high in selenium, the drainage 19 waters from this area were also tested and analyzed, 20 discovered to be high in selenium. Ever since that time, 21 these farmers have been working to try to manage these 22 drainage waters. 23 What happened after 1985 is that no longer was 24 this drainage water used in the wetland areas. It was 25 discharged directly through the wetland areas to the San CAPITOL REPORTERS (916) 923-5447 5093 1 Joaquin River. None of the drainage water from the 2 100,000-acre drainage area ever discharged into Kesterson 3 Reservoir. It always discharged through the wetlands and 4 to the San Joaquin River. 5 Prior to '85 it was consumed in the Westlands as 6 wetland water supplies. After '85 it basically went 7 straight to the river. In 1988, the participating members 8 of the Grassland drainage area began negotiations with the 9 Bureau of Reclamation to utilize a portion of the San Luis 10 drain, so that the drainage water would no longer discharge 11 through the wetlands. 12 With the Central Valley Project Improvement Act, 13 the wetlands had obtained additional water supplies. They 14 needed their channels free in order to deliver those water 15 supplies to the wetlands areas. And as drainage water was 16 in the channels they could not use them for that purpose. 17 The negotiations in 1988 were expanded to include 18 participation by the U.S. Environmental Protection Agency, 19 the U.S. Fish and Wildlife Service and various 20 environmental groups and other interested water 21 contractors. 22 In late 1995, environmental documentation was 23 completed and a use agreement between the Bureau and the 24 south -- or San Luis and Delta-Mendota Water Authority was 25 signed for the Grassland Bypass Project. And, basically, CAPITOL REPORTERS (916) 923-5447 5094 1 this project takes the drainage water from the 100,000-acre 2 drainage area, constructed a four-mile earth and channel on 3 the north side of the drainage area and connected that 4 discharge into the San Luis drain. 5 Then the water is conveyed in the San Luis drain 6 28 miles to the terminus of the San Luis drain and 7 discharged, then, into Mud Slough and on into the San 8 Joaquin River. The benefit is that drainage water was 9 removed from some 90 miles of channels within the wetland 10 areas, which is shown in the blue color on the map. And 11 those 90 miles include over 6 miles of Salt Slough, which 12 is a major natural channel in the north grasslands. 13 As a part of the negotiating process a consensus 14 letter was sent to the Regional Board. This consensus 15 letter was signed by the San Luis and Delta-Mendota Water 16 Authority, by the Bureau of Reclamation, by the U.S. 17 Environmental Protection Agency and U.S. Fish and Wildlife 18 Service recommending to the Regional Board that they 19 basically incorporate the terms of the use agreement for 20 use of the San Luis drain into their basin planning process 21 and including the issuance of waste discharge requirements 22 for this project. 23 This truly was a consensus process where these 24 parties and others got around a table and through 25 negotiation decided and agreed on a proposed strategy for CAPITOL REPORTERS (916) 923-5447 5095 1 management of drainage in this area. It's not something 2 that was forced on any one party. And so it was a 3 consensus effort. 4 In May of 1996 the Central Valley Regional Board 5 adopted a control plan for ag drainage from this drainage 6 project area. The policies adopted by the Regional Board 7 at that time included the control of agricultural 8 subsurface drainage will be pursued on a regional basis. 9 We complied with that by the formation of this 10 regional drainage entity under the umbrella of the San Luis 11 and Delta-Mendota Water Authority. The second point was 12 that export of salts out of the basin has the least 13 potential for causing environmental impacts. And the San 14 Joaquin River may continue to be used to remove salts as 15 long as water quality objectives are met. The third point 16 was that selenium load reductions are the means for 17 regulating selenium discharges. 18 Ever since 1995 when the use agreement was 19 finalized, this area has been aggressively pursuing 20 drainage reduction and water conservation practices. And 21 many of these practices were included in the San Joaquin 22 Valley Drainage Report. Some of them are new and what we 23 consider to be innovating in this area. 24 Just to kind of go down the list fairly quickly, 25 the Grassland basin drainers activity agreement, under the CAPITOL REPORTERS (916) 923-5447 5096 1 Authority, in effect, the formation of a regional drainage 2 entity. The Grassland Bypass Project was implemented to 3 minimize impacts to the grasslands and wetlands area of the 4 conveyance of drainage water. 5 Our activity agreement formed a steering 6 committee, in effect, a Board of Directors with 7 representatives from all participating parties to act -- to 8 oversee the project, the hiring and appointment of regional 9 drainage coordinator, which I currently serve in that 10 position, irrigation system improvement loans through the 11 State revolving funds through the State Board process. 12 An Economic incentive program which includes a 13 tiered water pricing to encourage water conservation, also, 14 includes a tradable loads program, which we have a grant, 15 an EPA grant to work on the establishment of a tradable 16 loads program where if some district has selenium load, 17 they can trade, buy, barter, whatever the case might be, 18 those loads to other parties. 19 Sprinkler pre-irrigation has been implemented on 20 most of the land to minimize the high drainage flows that 21 we have typically developed during the pre-irrigation 22 season. A significant monitoring program both for the 23 Grassland Bypass Project, which is an interagency 24 monitoring program as well as a monitoring program within 25 the drainage area itself, which we have implemented CAPITOL REPORTERS (916) 923-5447 5097 1 measuring flow, quality, many different factors. 2 We have developed a newsletter, sent out a 3 newsletter. One of the main things to get done is 4 communicate with farmers the need to address the drainage 5 problem and to reduce the drainage. An active land 6 management program, this is a kind of an innovative thing 7 in our area where we have taken lands, and for the most 8 part, nonproductive lands, planted alternative crops such 9 as salt tolerant grasses and irrigated those lands with 10 high-salinity water, in effect, reduce the drainage 11 discharge. 12 A tailwater prohibition, historically, this area 13 the drainage has been a combination of subsurface tile 14 water as well as surface tailwater. A couple reasons we 15 have implemented the tailwater prohibition, one, in 16 managing water we feel we can do a lot better if the 17 operators are paying attention to the tailwater and 18 minimizing and eliminating the tailwater discharge. 19 The other thing, tailwater increases the quantity 20 of water discharge making it more difficult to manage. In 21 our case, it also carries some sediment which is ultimately 22 deposited in the San Luis drain and will have to be dealt 23 with in the future. 24 Tile sump management, which is regulating water 25 levels in sumps and, in fact, at times shutting sumps off CAPITOL REPORTERS (916) 923-5447 5098 1 and turning them on at different times. Drainage water 2 recycling, where we, actually, take the subsurface drainage 3 water from the area and recycle it back into the water 4 supply, this is done with great care and controls so as not 5 to deliver water to the lands of a salt concentration that 6 would be of damage to crops, yet, to maximize the reduction 7 of drainage water as it's discharged from the area. 8 And, also, the last is displacement of drainage 9 water through various -- for example, on roadways we have 10 dust control measures that farmers typically do out here. 11 They put water trucks on the roads. And one of the things 12 that we've done is put sprinkler systems and actually 13 applied drainage water to those roads instead of using 14 freshwater. 15 We think that all of these things need to be taken 16 into account in this Draft EIR process. In the Draft EIR 17 there is -- there is one area, mainly, that is dealt with. 18 And that is the storing of drainage water during the summer 19 months and discharging that at other times. Although that 20 could be a part of the long-term solution, and we think it 21 should be part of the long-term solution, all of these 22 other activities will also be a part if we are going to 23 manage the salt from this area long-term. 24 I would like to put on some more exhibits to show 25 you what the impacts have been of our activities. If you CAPITOL REPORTERS (916) 923-5447 5099 1 put up Figure 3, this is Figure 3 of San Luis and 2 Delta-Mendota Water Authority Number 10. 3 C.O. CAFFREY: Mr. McGahan? 4 MR. MCGAHAN: Yes. 5 C.O. CAFFREY: This is on our time. I hope I haven't 6 done you a disservice, are you aware there is a 20-minute 7 limit on your direct testimony? 8 MR. MCGAHAN: I was aware. How far am I into it? 9 C.O. CAFFREY: You have five minutes left. 10 MR. MCGAHAN: Okay. 11 C.O. CAFFREY: I apologize for not reminding you at 12 the outset. 13 MR. MCGAHAN: Okay. 14 C.O. CAFFREY: Please, go ahead, sir. 15 MR. MCGAHAN: Okay. I'd like to skip my -- if we 16 could go to Figure 7. This is a figure that shows the 17 cumulative discharge from the grassland drainage area. And 18 this is -- you can't see the Y axis, but it's in pounds of 19 selenium. And it shows the cumulative discharge. 20 Basically, you add one month onto the other months starting 21 in October of any given water year and going to September 22 of that water year. And so by the time you get to 23 September you have the total for the year. 24 Shown on here are water years '95, '96 and '97. 25 Water year '97 is the first year of operation of the CAPITOL REPORTERS (916) 923-5447 5100 1 Grassland Bypass Project. Water years '95 and '96 were 2 before that, although, there were water-conservation 3 drainage-reduction activities going on. 4 What this shows is that in water year 1997 there 5 was a 33-percent reduction in the pounds of selenium 6 discharged from the grassland drainage year compared to 7 water year 1996 and a 44-percent reduction in the pounds of 8 selenium compared to water year 1997. We think those are, 9 certainly, significant reductions from drainage from our 10 area. 11 There is a couple things I'd like to point out in 12 the Draft EIR that we feel the quantity of drainage water 13 that is mentioned in there has been underestimated. There 14 is a quantity of 19,000 acre-feet per year. And in 1997, 15 the first year of our project, the quantity was actually 16 37,000 acre-feet. So that's a significant change which 17 also have an impact on the acre-feet in the storage 18 alternates, or the volume of storage that's needed to store 19 the water in the summertime and discharge it at a later 20 period of time. 21 Again, we feel that all of our drainage control 22 activities should be included and not just one -- emphasize 23 the one which is in the Draft EIR. There's one other chart 24 I'd like to show. This is San Luis and Delta-Mendota Water 25 Authority Exhibit Number 11. CAPITOL REPORTERS (916) 923-5447 5101 1 Although, the purpose of the Grassland Bypass 2 Project was to manage and control selenium discharges from 3 the drainage area, it has also had an impact in the salt 4 discharges. This figure shows the discharge from Salt and 5 Mud Slough. And, again, that's from the northerly area of 6 the Grassland Watershed, which is aan much larger area than 7 the grassland drainage area. And then shown in yellow in 8 the figure is the discharge from the drainage area. The 9 numbers are in tons of salt. 10 And it shows from our drainage area from water 11 year '95 to water year '97 there's been a decrease from 12 about 240,000 tons to about 140,000 tons, almost 100,000 13 tons a year reduction from '95 to 97. A little bit less, 14 about 25 percent, from 200,000 to 140,000 from water year 15 '96 to '97, this is salt load in tons. 16 One of the conditions of the Grassland Bypass 17 Project was that it would not increase the discharge of 18 salt to the San Joaquin River. And that would be measured 19 at Salt and Mud Sloughs. And as you can see there, 20 actually, has been a slight reduction in the discharge to 21 the river at Salt and Mud Sloughs. 22 And, again, this discharge is from a much larger 23 area than the grassland drainage area. It's really out of 24 our control, but our Bypass Project had some impact on 25 discharges of salt. So that's why it's important to show CAPITOL REPORTERS (916) 923-5447 5102 1 this information. 2 I'd like to conclude in stating that we think we 3 have a very progressive project. We are doing everything 4 possible in order to meet water quality objectives for 5 selenium. The Regional Board has embarked on a process to 6 set salinity objectives in the San Joaquin River. We have 7 asked for the issuance of waste discharge requirements. 8 Those have been given to us. And we would like to see that 9 process continue. 10 The Grassland Bypass Project is only a five-year 11 project. We're already two years into it. It only has 12 three years left, but we would like to see some certainty 13 that the process will continue with the Regional Board's 14 basin planning process should -- the conditions and terms 15 in our waste discharge permits, which have many milestones 16 within the next few years. So that concludes my statement. 17 C.O. STUBCHAER: What timing. 18 C.O. CAFFREY: That is the most perfect timing we've 19 ever had in this hearing, Mr. McGahan. As you said the 20 word "conclude" it beeped. All right. Thank you, sir. 21 MR. SEXTON: Mr. Chairman? 22 C.O. CAFFREY: Yes, Mr. Sexton. 23 MR. SEXTON: In Mr. McGahan's testimony, San Luis and 24 Delta-Mendota Water Authority Exhibit 9, we've also made 25 reference to Exhibit 10. Mr. McGahan didn't get into CAPITOL REPORTERS (916) 923-5447 5103 1 summarizing that very much due to time constraints. And 2 we'd like that marked for identification, also. 3 C.O. CAFFREY: All right. Thank you, sir. By a 4 showing of hands, all at once, who would like to 5 cross-examine this witness? And as I call your name, then 6 you can take your hand down. 7 Mr. Gallery. Who's that at the back there, is 8 that Ms. Cahill? 9 MS. LEIDIGH: Cahill. 10 C.O. CAFFREY: Ms. Cahill, Mr. Nomellini, Mr. 11 Herrick, Mr. Jackson. Did we get everybody? Who did we 12 leave out? Oh, Mr. Minasian. Anybody else? All right. 13 We'll take them in the following order: Mr. Minasian, 14 Mr. Jackson, Mr. Herrick, Mr. Nomellini, Ms. Cahill -- and 15 I wish I could read my writing -- 16 MR. GALLERY: Must have been Gallery. 17 C.O. CAFFREY: That was Mr. Gallery. Thank you, sir. 18 I'll improve my writing after this. All right. Thank you. 19 MS. CAHILL: Chairman Caffrey, there may be some 20 people who are not here, who are not aware of the shift in 21 order. It might be good for us to take, like, just five 22 minutes so that those of us can call those others. I'm 23 thinking, in particular, of Stockton East. 24 C.O. CAFFREY: Are they nearby, Ms. Cahill? 25 MS. CAHILL: No, but if there's that many CAPITOL REPORTERS (916) 923-5447 5104 1 cross-examiners it would give them the opportunity. 2 MR. GALLERY: Mr. Chairman, Dan Gallery. I spoke to 3 the Zolezzi office this morning. And they had the 4 impression that Mr. Birmingham would still be 5 cross-examining this afternoon and they'd be here in the 6 morning in time for this case in chief. But I agree with 7 Ms. Cahill, with the number of cross-examiners they may -- 8 I think they should have the opportunity to cross tomorrow, 9 also. 10 C.O. CAFFREY: We'll accommodate them tomorrow, 11 Ms. Cahill, if we complete this list today. In fact, I'll 12 add Ms. Zolezzi's or Ms. Harrigfeld's name, whichever. 13 MS. CAHILL: Thank you. 14 C.O. CAFFREY: Thank you for reminding us. All 15 right. Anything else before -- I'm sorry. Ms. Forster was 16 asking if the Board Members' questions were last. That 17 gives us the opportunity to fit in the day. 18 MR. BIRMINGHAM: I could cross-examine. 19 C.O. CAFFREY: We always have Mr. Birmingham in a 20 pinch. Thank you. 21 Mr. Minasian, please proceed, sir. Good 22 afternoon. 23 // 24 // 25 // CAPITOL REPORTERS (916) 923-5447 5105 1 ---oOo--- 2 CROSS-EXAMINATION OF SAN LUIS AND DELTA-MENDOTA 3 WATER AUTHORITY 4 BY EXCHANGE CONTRACTORS 5 BY PAUL MINASIAN 6 MR. MINASIAN: Mr. McGahan, on behalf of the Exchange 7 Contractors may I ask you a few technical questions about 8 what a typical farmer does in the grassland drainage area 9 to attempt to meet the program that the former San Luis 10 drain facility has been incorporated into. 11 Let's start at the end of harvest in October and 12 would you take us through a calendar year of a typical 13 grower who applies surface water, who also has tile 14 drainage, not everyone has tile drainage, take us through a 15 typical year with a typical grower. 16 MR. MCGAHAN: First of all, it's an education 17 process. He has now been educated by the district 18 managers, for the most part, and myself as a drainage 19 coordinator that he has to irrigate with drainage 20 discharges in mind. 21 In the fall of the harvest of his crops his next 22 decision is when and how to pre-irrigate to get the 23 moisture in the soil for the next year's crops. As I 24 mentioned, many of the farmers have participated in the 25 purchase of irrigation equipment, mainly sprinkler systems, CAPITOL REPORTERS (916) 923-5447 5106 1 but there are other kinds of systems out there like drip 2 irrigation, gated-pipe systems, and many of the farmers 3 have gone to sprinkler irrigation during the pre-irrigation 4 season, again, in order to minimize the water application. 5 MR. MINASIAN: Mr. McGahan, could I stop you for a 6 moment. In certain cases where growers are 7 undercapitalized, have districts acquired irrigation 8 equipment that is available to them? 9 MR. MCGAHAN: Yes. Through the State Revolving Fund. 10 Mainly through the State Board there has been a purchase of 11 irrigation equipment. 12 MR. MINASIAN: Good. Go on. 13 MR. MCGAHAN: In addition, the districts have 14 tiered-pricing policies, many of them also for the 15 pre-irrigation season, limiting the amount of water that 16 can be discharged without paying an additional rate for the 17 water. So encouraging the farmers to put in a minimum 18 amount of water. 19 MR. MINASIAN: What is the district doing during this 20 period of time to ascertain whether or not surface water is 21 draining off the property, or tile drainage is coming out 22 of the tile drain? 23 MR. MCGAHAN: All of the districts have measured the 24 water coming out of their sumps. They also measure the 25 water leaving their boundaries. We, as a regional drainage CAPITOL REPORTERS (916) 923-5447 5107 1 entity, measure the water leaving the drainage area. So 2 there's a constant measuring and reporting of that 3 information to the farmers. 4 MR. MINASIAN: Okay. 5 MR. MCGAHAN: In the irrigation season then, again, 6 it's an education process to the farmer that he needs to 7 irrigate during the irrigation season to minimize drainage 8 outflows, basically, to irrigate with drainage in mind. 9 That includes recycling their own drainage sumps onto their 10 own property, which has been done mainly prior to 1997. 11 And it also includes, then, receiving water 12 through district-wide recycling systems that may be a 13 little higher in salinity than would normally be if the 14 water was not recycled. Again, as I mentioned, this is 15 very carefully monitored and reported to the farmers so 16 that they are aware all the time of what's going on. 17 MR. MINASIAN: Let's stop there. Why would a grower 18 intentionally put high salinity water back into the head of 19 his field to apply to his crops? What is his motivation? 20 MR. MCGAHAN: Again, the motivation is to maintain 21 the drainage outlet. Irrigated agriculture in this area 22 can't be sustained without irrigated irrigation. And 23 without a drainage outlet, he -- the motive is to continue 24 to be able to discharge while meeting water quality 25 objectives and to recirculate water, recycle water in this CAPITOL REPORTERS (916) 923-5447 5108 1 case so as not to damage his crops. It's a truly balancing 2 act on their part. 3 MR. MINASIAN: Why would a district intentionally put 4 drain water, either surface drain or tile drainage, back 5 into the receiving water for a number of landowners? 6 MR. MCGAHAN: Again, for the same reason, to be able 7 to maintain a drainage outlet and to be able to manage the 8 drainage. The other long-term issue is, of course, salt 9 balance on the agricultural lands. And our preliminary 10 calculations indicate that even with this recycling, while 11 a salt balance for the overall area is maintained. 12 MR. MINASIAN: How does the district or the landowner 13 ascertain whether or not the salt balance is being exceeded 14 on his particular field for his particular crop? 15 MR. MCGAHAN: The easiest is just to measure the salt 16 concentration in the water. Again, that's controlled with 17 the intent of not damaging the crops. 18 MR. MINASIAN: Take us to a point in July in a 19 theoretical crop in which an accession, the salt balance 20 has been exceeded and the crop is showing symptoms of 21 salinity toxicity, what is done at that point there? 22 MR. MCGAHAN: We have not had the situation since the 23 operation of the Grassland Bypass Project. There was one 24 District in the area, Broadview Water District that in the 25 early '80s recycled all of their drainage water to a very CAPITOL REPORTERS (916) 923-5447 5109 1 high concentration, a concentration higher than the crops 2 could take. And they did see crop damage and had to change 3 cropping patterns. 4 That's why we're so careful in doing it that we do 5 not get to a point where that happens. We are doing 6 monitoring soil, salinity monitoring to ensure that doesn't 7 happen. Hopefully, we will know that before that happens. 8 MR. MINASIAN: Is there a time during the irrigation 9 season which the grower has held out hope that he can 10 increase his leaching fraction and, in fact, drain some of 11 the accumulated salt out of his property through the 12 Grassland Bypass Project? 13 MR. MCGAHAN: Again, the requirements in the 14 Grassland Bypass Project are for selenium. I didn't get 15 into it in much detail, but as a load-base regulation, that 16 is we're limited on the amount of pounds of selenium that 17 can be discharged. And, in fact, over the last three years 18 of the project is a requirement that they be reduced 5 19 percent per year. So even in wet years under the current 20 regulation there is no ability to, in effect, leach out 21 salts that may have been accumulated. Again, very 22 important, then, that it be watched as it's happening. 23 MR. MINASIAN: So let's go to a day in which there is 24 high flows in the San Joaquin River, lots of rainfall in 25 the area. Is there some element of your management plan CAPITOL REPORTERS (916) 923-5447 5110 1 that evolves handling drainage through the bypass into the 2 river at those times, but not at times in which the 3 receiving waters are not of high volume? 4 MR. MCGAHAN: The regulations at the current time are 5 really independent of the flow in the San Joaquin River. 6 They're strictly a load base based on some historical 7 numbers. 8 MR. MINASIAN: Okay. Let's -- we've talked about the 9 Vernalis standard and the sensitivity of crops in the South 10 Delta area. Could you give us some typical examples of the 11 TDS of the water which the districts in this area are 12 putting back into their water supply from the DMC. 13 MR. MCGAHAN: The basic number that most districts 14 are using varies from 600 parts per million TDS to 800 15 parts per million TDS. So that is mixing the drainage 16 water with their irrigation supply so that the blended 17 concentration varies from 600 to 800. 18 MR. MINASIAN: And we are talking about areas that 19 grow sensitive vegetable crops, are we not? 20 MR. MCGAHAN: That's true. 21 MR. MINASIAN: Okay. I have nothing further. Thank 22 you. 23 C.O. CAFFREY: Thank you, Mr. Minasian. 24 Mr. Jackson. 25 ---oOo--- CAPITOL REPORTERS (916) 923-5447 5111 1 CROSS-EXAMINATION OF THE SAN LUIS AND 2 DELTA-MENDOTA WATER AUTHORITY 3 BY TRINITY COUNTY 4 BY MICHAEL JACKSON 5 MR. JACKSON: Mr. McGahan, are any of the surface 6 water bodies within your drainage district listed as 7 impaired water bodies under the Central Valley Regional 8 Water Quality Control Plan? 9 MR. MCGAHAN: None of the water bodies within the 10 grassland drainage area are to my knowledge. 11 MR. JACKSON: And where are the nearest impaired 12 water bodies, to your knowledge? 13 MR. MCGAHAN: I believe the San Joaquin River 14 downstream of Mud Slough and possibly to the tributaries to 15 the San Joaquin River, which would include Mud and Salt 16 Slough. 17 MR. JACKSON: All right. You do know that both Mud 18 and Salt Slough are listed? 19 MR. MCGAHAN: As tributaries? 20 MR. JACKSON: Right. 21 MR. MCGAHAN: Yeah. 22 MR. JACKSON: And that within Mud and Salt Slough the 23 typical selenium concentration is higher than that 24 recognized as being helpful for beneficial uses? 25 MR. MCGAHAN: Actually, that's not the case. As I CAPITOL REPORTERS (916) 923-5447 5112 1 mentioned, one of the purposes of the Grassland Bypass 2 Project was to remove drainage water from the channels 3 within the grasslands. Salt Slough is one of those where 4 Salt Slough used to carry water 30 to 40, 50 parts per 5 billion selenium. It has been reduced to 2 parts per 6 billion or less for the vast majority of the time. 7 Where salinities have historically been in the 8 range of 44,000 micromhos EC, they have been reduced to the 9 thousand micromhos range in Salt Slough, in Mud Slough 10 which is a channel that -- about six miles of Mud Slough 11 that discharges from the end of the drain to the river. 12 Mud and Salt Slough are operated as an alternative 13 discharge historically. Some of the time the drainage 14 water was in Mud Slough, for the most part of the time it 15 was in Salt Slough. Now, it's always in Mud Slough. So 16 the concentrations are higher for a longer period of time. 17 They're not necessarily higher than they've ever been in 18 Mud Slough, but they're always high in that six miles of 19 Mud Slough now. And selenium concentrations are high all 20 the time now. 21 MR. JACKSON: So the operation of the project has 22 sort of concentrated the salts into Mud Slough, into one 23 section of Mud Slough? 24 MR. MCGAHAN: All the drainage goes through Mud 25 Slough and not Salt Slough now. CAPITOL REPORTERS (916) 923-5447 5113 1 MR. JACKSON: And that's a change that's caused by 2 the management of this project? 3 MR. MCGAHAN: That's correct. 4 MR. JACKSON: You indicated that 600 to 800 TDS is 5 appropriate or is acceptable for the regular operations of 6 agriculture within your district? 7 MR. MCGAHAN: Yes. Certainly, it's not a preferred. 8 Any farmer would prefer the best quality of water he can 9 receive. The point is that we're under a mandate to reduce 10 the drainage discharge from the area. And we're watching 11 that recycled concentration very closely. And we feel that 12 600 to 800 is acceptable for that recycled water. 13 MR. JACKSON: And you -- what was the -- let me step 14 back a bit. 15 Does anyone within that drainage district use 16 groundwater at this point? 17 MR. MCGAHAN: In a year where there's normal water 18 supplies, they don't use groundwater. In the drought, 19 especially in the early '90s -- just to back up a little 20 bit. There is groundwater wells in the drainage area. 21 They are -- and in the drought periods when there's not 22 sufficient water from the -- from the federal projects, 23 that wells are utilized, yes. 24 MR. JACKSON: And what is the TDS of the wells? 25 MR. MCGAHAN: It's -- it varies. I would estimate CAPITOL REPORTERS (916) 923-5447 5114 1 like from a thousand micromhos to 3,000 micromhos. 2 MR. JACKSON: And does the use of groundwater reduce 3 the suitability of the water for agriculture? 4 MR. MCGAHAN: I'm not sure I understand the question. 5 MR. JACKSON: Well, the question is: If you didn't 6 have the surface water, would the groundwater be adequate 7 in terms of quality for the agricultural activities within 8 the drainage district's boundaries? 9 MR. MCGAHAN: No. It, certainly, would be above what 10 we would consider acceptable levels. 11 MR. JACKSON: So where is the break between 800 TDS 12 and what you consider acceptable levels? Where does it 13 become unacceptable? 14 MR. MCGAHAN: Different crops can receive 15 different -- the -- it's different for different crops. So 16 the -- you have to take the overall crops as a whole, in 17 effect, the most sensitive crop, because your distribution 18 system delivers to all crops. You have to take the most 19 sensitive crop and use that as your basis. 20 MR. JACKSON: And what is the most sensitive crop? 21 MR. MCGAHAN: I don't have that information with me. 22 MR. JACKSON: All right. And do you know whether or 23 not you could simply change cropping patterns to crops that 24 were more salt tolerant and use the groundwater instead of 25 the surface water? CAPITOL REPORTERS (916) 923-5447 5115 1 MR. MCGAHAN: It's not as easy as that, of course. 2 You have -- you have -- there's other conditions that make 3 this land suitable for the crops that are grown there. 4 Water quality would be just one of the factors, climate, 5 soil type is also a factor. So it's not as easy as just 6 changing crops. 7 MR. JACKSON: But you could change crops and use 8 higher salinity water and still operate as a farmer? 9 MR. MCGAHAN: Maybe not profitably. 10 MR. JACKSON: So it's a matter of profit? 11 MR. MCGAHAN: Certainly. Certainly. Farming on the 12 west side is certainly a matter of economics. They don't 13 farm if they're -- if they don't have a positive bottom 14 line. And that's one of our primary goals in the Grassland 15 Bypass Project is to maintain farming, maintain a salt 16 balance, continue to have a discharge while meeting water 17 quality objectives. 18 MR. JACKSON: All right. Now, this project has been 19 ongoing for two years? 20 MR. MCGAHAN: Yes. 21 MR. JACKSON: And you showed us, I believe -- could 22 you put that back up that -- which figure it was that 23 showed the decline in the amount of salinities, I believe. 24 MR. MCGAHAN: That would be Figure 7. 25 MR. JACKSON: No. Actually, it's the bar chart. CAPITOL REPORTERS (916) 923-5447 5116 1 MR. MCGAHAN: The salt? 2 MR. JACKSON: Yes, the salt chart. Excuse me. 3 MR. MCGAHAN: That would be exhibit -- 4 MR. JACKSON: Exhibit Number 11. Now, this exhibit 5 shows three water years. Are these typical water years? 6 MR. MCGAHAN: Through my experience that I've been 7 out there, there is no year that's a typical year. They're 8 all different. 9 MR. JACKSON: All right. These are high rainfall 10 years? 11 MR. MCGAHAN: '95 was certainly a very high rainfall 12 year. '97 was somewhat of an above normal year. '96 was 13 more closer to normal, if there is such a thing. 14 MR. JACKSON: All right. And none of these were 15 below water years? 16 MR. MCGAHAN: That's correct. 17 MR. JACKSON: All right. Now, the blue/green, I 18 think that's blue/green that indicates Salt Slough and Mud 19 Slough is listed in tons of salt? 20 MR. MCGAHAN: That's correct. 21 MR. JACKSON: And just calling your attention to it 22 from '95 to '97, according to this chart, the tons of salt 23 dropped by 50,000 tons? 24 MR. MCGAHAN: That's correct. 25 MR. JACKSON: And as I take a look at the drain area, CAPITOL REPORTERS (916) 923-5447 5117 1 the drainage of salt seems to decline, I think you said, 2 from 240 to 140,000? 3 MR. MCGAHAN: That's correct. 4 MR. JACKSON: So where did the rest of the salt come 5 from? I mean, did other people's salt get worst during 6 that period of time? 7 MR. MCGAHAN: This gets to the question of the 8 grassland watershed, as I mentioned, is a very complicated 9 land use within that area. It's about a 400,000-acre area 10 compared to the grassland drainage area, which is the area 11 utilizing the Grassland Bypass Project, about a 100,000 12 acre. 13 So about a fourth of the land area is, in effect, 14 that area that is utilizing the Grassland Bypass Project. 15 One of the -- so there's many -- there's many discharges 16 going into the Salt and Mud Slough discharges other than 17 what comes from the grassland drainage area. 18 MR. JACKSON: All right. So at the same time the 19 grassland drainage area was lowering the amount of salt in 20 terms of tons, the rest of the drainage area was 21 increasing? Is that what that graph shows? 22 MR. MCGAHAN: It -- I think the area shows it's 23 decreasing from '95 to '97 in -- in Mud and Salt Slough. 24 MR. JACKSON: Yes. But I guess if you take a look at 25 it a little, the yellow bar shows a decrease of 100,000 CAPITOL REPORTERS (916) 923-5447 5118 1 tons from '95 to 97. Right? 2 MR. MCGAHAN: Right. 3 MR. JACKSON: The blue bar shows a decrease of only 4 50,000 tons, which would lead me to believe that if the 5 drainage area was really down 100,000 that somebody else 6 added 50,000. 7 MR. MCGAHAN: Well, one of the -- you need to look at 8 the other impacts in the other drainage area. I'm drainage 9 coordinator for a 100,000-acre area. That's a very 10 important point I've been trying to make here. I don't 11 manage what happens in the other area. One of the things 12 that has happened is that they have received additional 13 water supplies for wetland in the other area. 14 MR. JACKSON: I see. And so the additional water 15 supplies in the other areas may very well be adding salt to 16 the full system that is drained by Salt and Mud Slough 17 which is masked by your improvement? 18 MR. MCGAHAN: I understand what you're getting at. 19 MR. JACKSON: Uh-huh. 20 MR. MCGAHAN: But, again, to go back to one of the -- 21 one of the objectives of the Grassland Bypass Project is 22 not to increase salt from Mud and Salt Slough. And this 23 shows that for this period of time the total has decreased. 24 Yes, the contribution from these sources other than our 25 drainage area, if you had to do the math, would have CAPITOL REPORTERS (916) 923-5447 5119 1 increased over these three years. 2 MR. JACKSON: Thank you, sir. 3 C.O. CAFFREY: All right. Mr. Herrick -- oh, maybe 4 it would be appropriate to take a break right now. I'm 5 sorry, Mr. Herrick. 6 Let's take our 12-minute break and come back at 7 about 20 to 3:00. 8 (Recess taken from 2:29 p.m. to 2:41 p.m.) 9 C.O. CAFFREY: All right. We are back. 10 Mr. Herrick, good afternoon, sir. 11 ---oOo--- 12 CROSS-EXAMINATION OF SAN LUIS AND 13 DELTA-MENDOTA WATER AUTHORITY 14 BY SOUTH DELTA WATER AGENCY 15 BY JOHN HERRICK 16 MR. HERRICK: Thank you, Mr. Chairman. John Herrick 17 for the South Delta Water Agency. Mr. McGahan, on Page 5 I 18 think that's the -- yeah, Page 5 of your testimony at the 19 bottom of the page you talk about it being appropriate to 20 leave the regulation of the salinity with the Regional 21 Board through its basin plan process; is that correct, is 22 that a fair statement? 23 MR. MCGAHAN: Yes, that's correct. 24 MR. HERRICK: How long has the high-salinity drainage 25 water entering the San Joaquin River been a problem? CAPITOL REPORTERS (916) 923-5447 5120 1 MR. MCGAHAN: I'm not sure I understand the question. 2 MR. HERRICK: I'm trying to get a time frame here. 3 Since the Delta-Mendota Canal started delivering water on 4 the west side of the San Joaquin, would you agree that 5 that's about the time frame that high-salinity discharges 6 into the river became an issue? 7 MR. MCGAHAN: I can't say that, because I haven't 8 looked at that data. I've seen your exhibits, but from the 9 drain -- again, back from the grassland drainage area the 10 drainage from that area has been discharged to the San 11 Joaquin River since the '60s, I imagine. 12 MR. HERRICK: And are you aware, generally -- this 13 isn't a trick question. Are you aware, generally, of how 14 long downstream interests have been complaining about 15 high-salt concentrations in the San Joaquin River? 16 MR. MCGAHAN: Yes. 17 MR. HERRICK: And are you aware of that time when 18 downstream entities have been complaining about that, that 19 the Regional Board has not exercised jurisdiction in 20 formulating any standards? 21 MR. MCGAHAN: I know they have not done that. 22 MR. HERRICK: And if, again, that goes back to the 23 early '60s, we're talking about somewhere around a 30-year 24 period; is that a fair estimate? 25 MR. MCGAHAN: Yeah. You know the salinity problem is CAPITOL REPORTERS (916) 923-5447 5121 1 the nonsource point nature of agricultural drainage that 2 has always been difficult. And I know of people who would 3 have liked to have that issue resolved sooner than later. 4 And it hadn't been done. So I, certainly, acknowledge 5 that. I think our grassland drainage area, although, 6 certainly we've been pushed to proceed, we feel we're 7 taking a pro-active approach to managing our discharges 8 from that area. 9 MR. HERRICK: I appreciate that. But I'm trying to 10 explore your opinion that the standard in the San Joaquin 11 are best left to the Regional Board. And the question is: 12 After 30-some-odd years of inactivity, what is it that 13 makes you feel that leaving the decision in their hands is 14 appropriate? 15 MR. SEXTON: Object to the use of the term 16 "inactivity." That's more argument than it is proper 17 questioning for cross-examination. 18 C.O. CAFFREY: Yeah. I'm going to sustain that and 19 ask for, perhaps, a better choice of words. 20 MR. HERRICK: Certainly. 21 C.O. CAFFREY: Or a different choice of words 22 judgment, excuse me. 23 MR. HERRICK: Mr. McGahan, after 30-some-odd years of 24 the Regional Board not taking any action -- excuse me, not 25 implementing any water quality standards in the San Joaquin CAPITOL REPORTERS (916) 923-5447 5122 1 River with regard to the salinity, what is it that leads 2 you to believe that leaving the process as it is is an 3 appropriate way of addressing that issue? 4 MR. MCGAHAN: It's not, actually, only our opinion. 5 As I mentioned, the consensus letter was a letter signed by 6 the Bureau, the U.S. Environmental Protection Agency, the 7 U.S. Fish and Wildlife Service, they all recommended that 8 we go through the Regional Board process and have them 9 issue waste discharge requirements. 10 MR. HERRICK: Is that with regard to the salinity, 11 also? 12 MR. MCGAHAN: The waste discharge requirements only 13 deal with selenium. 14 MR. HERRICK: My question is: You cited various 15 governmental entities as recommending that the standards be 16 left to the Regional Board. Does that include salinity? 17 MR. MCGAHAN: The consensus letter only dealt with 18 selenium, not salinity. 19 MR. HERRICK: And are you, in fact, aware that I 20 think there's a hearing tomorrow on basin plan amendments 21 to the basin, the appropriate basin? 22 MR. MCGAHAN: I believe it's a triennial review, 23 which is a three-year review, they do every three years. 24 MR. HERRICK: Are you familiar with that to any 25 degree, the triennial review going on now? CAPITOL REPORTERS (916) 923-5447 5123 1 MR. MCGAHAN: I'm aware of the basin plan. And it's 2 just a review of those basin plans as I understand it. 3 MR. HERRICK: Are you aware of whether or not the 4 proposed basin plan amendments pursuant to the triennial 5 review deal with the salinity issue at all? 6 MR. MCGAHAN: I'm not aware of that. I am aware that 7 the Regional Board is in a process to come up with salinity 8 objectives. 9 MR. HERRICK: Mr. McGahan, you mentioned in your 10 testimony, your written testimony, I believe also in your 11 verbal, that one of the requirements, I think, of the use 12 agreement was that the salt loading to the San Joaquin 13 River not be increased due to the Bypass Project; is that 14 correct? 15 MR. MCGAHAN: That's correct. 16 MR. HERRICK: Wasn't that merely an indication -- 17 wasn't that merely a statement in the documents -- excuse 18 me. 19 Wasn't that merely a statement in the documents 20 trying to ensure that there was no adverse significant 21 impact due to the project? 22 MR. MCGAHAN: I believe that would be a correct 23 statement, yes. 24 MR. HERRICK: Okay. Could you briefly describe for 25 us -- excuse me. Let me start over. CAPITOL REPORTERS (916) 923-5447 5124 1 Have the efforts of the project resulted in a 2 decrease of the selenium reaching the San Joaquin River on 3 a yearly basis? 4 MR. MCGAHAN: Yes. 5 MR. HERRICK: And could you explain how the wet 6 year -- wet years have affected the amount of selenium 7 reaching the river? I guess by the "wet years," during the 8 project. 9 MR. MCGAHAN: I'm not sure I understand the question. 10 MR. HERRICK: It's my understanding that there's been 11 some exceedances of the proposed limits. 12 MR. MCGAHAN: Right. 13 MR. HERRICK: Could you explain when and how that 14 happened? 15 MR. MCGAHAN: In '97 -- as, again, I mentioned, we 16 have selenium load targets. That's what's a part of the 17 use agreement. And there's both monthly and annual 18 selenium load targets. In 1997 the annual target was 19 exceeded about 6 percent. There were months that were also 20 exceeded within the year. And there is a process to deal 21 with that in the use agreement. Basically, the incentive 22 fees were paid by the drainage area for those exceedances. 23 MR. HERRICK: And could you describe how selenium 24 loads are being regulated? 25 MR. MCGAHAN: Simply, there's monthly and annual load CAPITOL REPORTERS (916) 923-5447 5125 1 limits set as a part of the use agreement and the consensus 2 letter to the Regional Board. And over the life of the 3 project, it's a five-year project, there's a decision going 4 to be made in December whether to extend it for the final 5 three years of the project. The loads go down 5 percent 6 per year in those last three years. So that's a way of 7 regulating a decrease in the loads. 8 MR. HERRICK: Are the load limits that are set -- as 9 I understand that's a progressively decreasing amount; is 10 that correct? 11 MR. MCGAHAN: Over the last three years, yeah. 12 MR. HERRICK: But I mean the goals are progressively 13 decreasing loads? 14 MR. MCGAHAN: Yes. 15 MR. HERRICK: Are those annual load limits, are they 16 less, greater to, or equal than, I'll say, a historic 17 annual of selenium entering the San Joaquin River from the 18 area? 19 MR. SEXTON: In what time frame? 20 MR. HERRICK: I'm not sure what data exists, but over 21 the last 30-year period. 22 MR. MCGAHAN: I wouldn't have data over the last 30 23 years. 24 MR. HERRICK: Well, is the program going to result in 25 a retention of the selenium in the drainage area as opposed CAPITOL REPORTERS (916) 923-5447 5126 1 to in the absence of the project, or is it allowing the 2 removal of the selenium on a more regulated basis? 3 MR. MCGAHAN: Let me get to that by: The limits were 4 set -- they were set as an average of the discharge to the 5 San Joaquin River, a nine-year average from the period 1986 6 to 1994. That nine-year period included several years of 7 severe drought, which had the -- had the impact of the 8 discharge to the river of reducing the drainage discharge 9 to the river. 10 So the point is, in that averaging period there 11 are some years in which the discharge was greatly reduced. 12 However, that's the average that was used to set the 13 targets for the first two years of the project. And the 14 third, fourth and fifth year would be reduced 5 percent 15 each year from those averages. So the goal would be to 16 reduce it over what -- over that averaging period. 17 MR. HERRICK: So you're trying to reduce the load 18 over an average that was based on a period that included a 19 good number of drought years; is that correct? 20 MR. MCGAHAN: That's correct. 21 MR. HERRICK: And how do you propose to do that? 22 MR. MCGAHAN: I listed about, you know, 14 or 15 23 different methods that the farmers in the drainage area are 24 implementing to do that. That includes institutional 25 measures such as economic incentives, tradable loads, CAPITOL REPORTERS (916) 923-5447 5127 1 tiered-water pricing, communication with newsletters, 2 communicating to the farmers on how best to reduce the 3 loads to meet that. 4 Also, implementation of measures such as recycling 5 of drainage water into the water supply to reduce the 6 drainage outlet, a displacement of drainage water onto 7 roadways for dust control, active land management, 8 discharging drainage water onto lands with salt tolerant 9 crops. Many of the items in the San Joaquin Valley 10 Drainage Program Report as well as additional items that 11 we've implemented in the area. 12 MR. HERRICK: How is the selenium distributed 13 throughout the, I'll say, the grasslands' watershed? 14 MR. MCGAHAN: I term the grassland watershed to be 15 the 400,000-acre area that goes from Mendota on the south 16 to Highway 140 on the north and bounded by the San Joaquin 17 River and Interstate 5. It's a totally diverse area as far 18 as what the land is used for. And so the selenium is 19 widely varied within that area, the occurrence of selenium. 20 MR. HERRICK: And does the -- how does the 21 application of surface irrigation water affect that 22 distribution of selenium? 23 MR. SEXTON: Distribution -- objection. Vague and 24 ambiguous. The question: Distribution, where in the 25 soils? In the groundwater systems? What are you speaking CAPITOL REPORTERS (916) 923-5447 5128 1 of? 2 C.O. CAFFREY: Can you be more specific, Mr. Herrick. 3 Thank you, sir. 4 MR. HERRICK: Certainly. I guess the free question 5 is: Is the selenium -- does the selenium occur in 6 various -- well, let me start over. 7 How does the selenium occur in that area? Is it 8 in the soil? Is it in the groundwater? Is it in the 9 surface water? Can you make any sort of general statements 10 as to where it is now? 11 MR. MCGAHAN: In the grassland drainage area, it's my 12 opinion that the selenium is in a perched water body 13 beneath the grassland drainage area. Again, I'm talking 14 about the 100,000-acre area, which is a smaller part of the 15 bigger grassland watershed. 16 That water is -- the ground has tile drainage or 17 subsurface drainage systems in it to prevent the water from 18 intruding into the root zones of the crops. As that water 19 comes out it has selenium in it. And, historically, that 20 water, then, was discharged into surface channels in the 21 grasslands. So that's where the selenium, for the most 22 part, it does not totally -- it doesn't all come from the 23 100,000-acre area, but certainly the most -- majority of it 24 comes from the 100,000-acre area. 25 And those surface waters then as they run through CAPITOL REPORTERS (916) 923-5447 5129 1 grasslands would have selenium in it. Now, we go through 2 our Bypass Project into the drain and into six miles of Mud 3 Slough, that's where the selenium is. 4 MR. HERRICK: Okay. But what I'm trying to figure 5 out where -- let's take the drainage, the DPA. Originally 6 the selenium was in the soils either from that area or west 7 of that area; is that correct? 8 MR. MCGAHAN: As I understand it it's a sediment off 9 of the coastal range which brought the selenium out there. 10 MR. HERRICK: And when you say it's now in the 11 perched groundwater table, you don't mean that to say that 12 it's all in the perched groundwater table, correct? 13 MR. MCGAHAN: Certainly, there's selenium in the 14 soils. But it's my understanding and opinion that the -- 15 our problem water is already dissolved in solution. And 16 it's that water that we take out in the subsurface tile 17 systems that has the selenium in it, for the most part. 18 MR. HERRICK: Is the application of surface 19 irrigation water changing the current situation with 20 regards to where the selenium is located in the DPA? 21 MR. MCGAHAN: I don't think it changed the location 22 of the drainage water. 23 MR. HERRICK: No. Changed the location of the 24 selenium? 25 MR. MCGAHAN: Excuse me. I don't think it changes CAPITOL REPORTERS (916) 923-5447 5130 1 the location of the selenium in the drainage water. 2 MR. HERRICK: So the various practices that the 3 drainage area is -- practices that the drainage areas are 4 implementing are meant to hold that selenium, to some 5 degree, where it is now? 6 MR. MCGAHAN: Yes, that would be a correct statement. 7 MR. HERRICK: Okay. The focus of this phase deals 8 with the salinity problems within the San Joaquin River and 9 interior problems in the South Delta. What portions of the 10 Grassland Bypass Project are affecting the salinity of the 11 San Joaquin River? 12 MR. MCGAHAN: Grassland Bypass Project is meant to 13 regulate selenium. But as a secondary occurrence, why as I 14 have -- the data that I showed, shows that the salinity 15 from our drainage area has also decreased significantly, 16 over 25 percent from '96 to '97. 17 MR. HERRICK: So as a result of the attempts to 18 withhold the -- to hold the selenium within the drainage 19 area, you're saying that that is affecting the total amount 20 of salt entering the San Joaquin River? 21 MR. MCGAHAN: Yes. As a result of our efforts to 22 control the amount of water -- the drainage water that's 23 discharged, those efforts have also resulted in a reduction 24 in the salt discharge to the river from our area. 25 MR. HERRICK: When we were looking at your Exhibit CAPITOL REPORTERS (916) 923-5447 5131 1 Number 11, Mr. Jackson was asking you questions about 2 whether or not that meant somebody else's salt load 3 discharge was increasing. Do you recall that? 4 MR. MCGAHAN: Yes. 5 MR. HERRICK: Ignoring other entities rather than the 6 districts within the drainage protection area, where is the 7 salt that would have been discharged in the river in the 8 absence of the project now? 9 MR. MCGAHAN: Salt is in the same place that selenium 10 is, for the most part. It's dissolved in a perched water 11 body. That water body contains a significant -- in my 12 opinion, a significant amount of selenium and salt. So 13 it's not something you empty out the bank account at the 14 end of the year and you start it up again. 15 There's a large volume of drainage water there, a 16 large amount of it is salt and selenium. And what we're 17 trying to do is, of course, keep the perched water out of 18 the root zone of the crops and to maintain a salt balance 19 while minimizing the amount of that water body that's, in 20 effect, pushed out of the drains and go to the San Joaquin 21 River. 22 MR. HERRICK: Now, when you say maintain a salt 23 balance, you're talking about the salt balance in the land 24 or irrigation water of the entities within the drainage 25 protection area; is that correct? CAPITOL REPORTERS (916) 923-5447 5132 1 MR. MCGAHAN: Within the drainage area, yes. 2 MR. HERRICK: You're not talking about a salt balance 3 in that groundwater table, are you? 4 MR. MCGAHAN: I'm not sure I understand the 5 difference. 6 MR. HERRICK: Well, would you agree, prior phases 7 South Delta has put on information about the total increase 8 in salt that's being delivered to CVP service areas. Are 9 you familiar with that information? 10 MR. MCGAHAN: Yeah, I am. I don't agree with that 11 information. I'm not sure what that covers. It talks 12 about an accretion, that's an incoming salt and a discharge 13 of salt. I don't know if that salt is measured at the 14 Tracy pumps and is a million-acre application area where 15 only a few 100,000 acres actually have discharge. 16 I know from our drainage, as I mentioned, our 17 preliminary analysis indicate that there is a salt balance. 18 There is no accumulated accretion of salt within our 19 drainage area, as a whole. Certainly, there could be 20 localized areas. 21 MR. HERRICK: By that you mean in your surface water 22 and your soils, your soils that are being farmed? 23 MR. MCGAHAN: What I mean is the incoming salt is 24 basically balanced with the salt that's discharged in the 25 drainage water. CAPITOL REPORTERS (916) 923-5447 5133 1 MR. HERRICK: So it's your testimony that all of the 2 salt -- I don't want to overstate it. It's your testimony 3 that the salt being delivered through your irrigation water 4 is being discharged back into the San Joaquin River 5 eventually? 6 MR. MCGAHAN: There's a balance. I'm not saying it's 7 the same salt. But my preliminary analysis show that 8 there's a balance between the salt that's brought on 9 irrigation water and that that's discharged in the drainage 10 water. 11 MR. HERRICK: What decrease in deliveries of salt, 12 I'll say, occurred in the years '96 and '97 such that your 13 Figure 11 shows it decrease in the discharge of salt? 14 MR. MCGAHAN: Prior to that time I believe we were 15 discharging more salt than we were bringing in. 16 MR. HERRICK: Okay. Are you familiar with South 17 Delta Exhibit Number 55? And this was introduced on 18 cross-examination the other day. Perhaps, you can identify 19 the caption, or the title page for the record. 20 MR. MCGAHAN: It's entitled "Agricultural Drainage 21 Contribution to Water Quality in the Grassland Watershed of 22 Western Merced County, California," October '95 to 23 September of '97. 24 MR. HERRICK: And are you familiar with that 25 document? CAPITOL REPORTERS (916) 923-5447 5134 1 MR. MCGAHAN: Yes. 2 MR. HERRICK: Have you seen that before? 3 MR. MCGAHAN: Yes. Yes. 4 MR. HERRICK: And that's produced by the Regional 5 Board, correct? 6 MR. MCGAHAN: Yes. 7 MR. HERRICK: In that document it says -- excuse me. 8 I'll give it to you in a second. On Page 3, which is the 9 executive summary, it's discussing the differences between 10 drainage and salt loads and things like that for the years 11 examined. And it says at the very bottom, it says: 12 (Reading): 13 "Generally lower loads of all constituents in 14 '96 and '97 was likely due to lower residual 15 salt loads in the grasslands watershed following 16 the series of wet years." 17 And I don't mean to trick you on that. Now I'm 18 going to get to a question on that. That's sort of an 19 intro here. Would you agree that depending on the water 20 year type, different amounts of salts are removed from 21 the -- from any area of land? 22 MR. MCGAHAN: I'm not sure it's totally dependent -- 23 water year type is one of the factors. But I'm not sure 24 it's even the controlling factor on the amount of salt 25 that's discharged, or drainage water that's produced. CAPITOL REPORTERS (916) 923-5447 5135 1 MR. HERRICK: Certainly. I'm not trying to say the 2 drainage protection drains may have more or less salt. But 3 if you have a high rainfall, would that generally tend to 4 mobilize and remove more salt than in a year without that 5 much rainfall, if the amount of the salt in the soil and 6 the groundwater was the same? 7 MR. MCGAHAN: It could. It, certainly, could. 8 MR. HERRICK: Do you disagree with the point that the 9 executive summary appears to be making in South Delta 10 Number 55? 11 MR. MCGAHAN: I do disagree with that, because that 12 implies that that's the only reason that the loads 13 decreased. And because I'm on the ground and I'm the 14 drainage coordinator, I know that our activities have 15 resulted in significant reductions of selenium and as a 16 secondary benefit salt. And so I think it understates the 17 actions of local area. 18 MR. HERRICK: Okay. What studies or investigations 19 have you done to determine the amount of salt load entering 20 the service area through delivered irrigation water? 21 MR. MCGAHAN: Taking the volumes of irrigation water 22 delivered, the quality in the case of salt, the salt 23 concentration of that water, determining a loading and 24 comparing that to the same calculation for the discharge. 25 MR. HERRICK: And where is that data? Is that CAPITOL REPORTERS (916) 923-5447 5136 1 available? 2 MR. MCGAHAN: The discharge data is available in 3 reports like that one. I -- actually, where I can use the 4 Regional Board data, although, we have it ourselves and we 5 confirm it. 6 The water supply data, certainly, is available 7 from the Federal Government for the most part, which 8 delivers the water. So I accumulate that data. The 9 quality readings are also available in the San Luis 10 Delta-Mendota Canal, use those readings. That's, 11 certainly, available to everyone. 12 MR. HERRICK: Can you give us some general numbers on 13 that, how much water is delivered to that service area from 14 the Delta-Mendota Canal? 15 MR. MCGAHAN: I don't have a breakdown. So I could 16 just talk in generalities. About -- of the 100,000-acre 17 area, about 80,000 acres is irrigated, the rest of it is in 18 roads and land not irrigated. A little over two acre-feet 19 an acre, so 160,000, 200,000 acre-feet, approximately. 20 MR. HERRICK: But you've gone through calculations 21 and applied, say, the average TDS to that? 22 MR. MCGAHAN: Right. 23 MR. HERRICK: And come up with an amount of salt 24 being delivered? 25 MR. MCGAHAN: Right. CAPITOL REPORTERS (916) 923-5447 5137 1 MR. HERRICK: And I'm not trying to trick you, but 2 you don't have that information off the top of your head? 3 MR. MCGAHAN: No. 4 MR. HERRICK: Okay. You discussed in your testimony, 5 I think in both verbal and written, that various users 6 within the service area are mixing drainage water with 7 other supplies and reapplying it for their use; is that 8 correct? 9 MR. MCGAHAN: That's correct. 10 MR. HERRICK: And you gave us a range of 11 approximately 600 parts per million to 800 parts per 12 million TDS; is that correct? 13 MR. MCGAHAN: That's correct. 14 MR. HERRICK: I just want to make it clear, I assume 15 the point that you were making was that those users are 16 making best efforts to, what, control salinity, to control 17 selenium? What is the reason that they are doing that? 18 MR. MCGAHAN: The primary reason is to control 19 selenium. For example, one of the main districts, the 20 Panoche Drainage District, which is about half of the 21 100,000-acre area, they have installed a 22 recirculation/recycling project. 23 And what they do is they recycle the discharge 24 from those -- those sumps within their district with the 25 highest selenium concentration so as to achieve the CAPITOL REPORTERS (916) 923-5447 5138 1 greatest reduction in selenium that's discharged from the 2 district. While, generally speaking, the salt 3 concentration is the same in the various sumps. So the 4 primary reason for it, because of our use agreement, 5 because of our selenium load limits, because -- is for 6 selenium. And the secondary benefit is the salt reduction. 7 MR. HERRICK: I just want to make sure, you're not 8 suggesting that in their attempts to control selenium, in 9 the fact their attempts to reduce selenium results in their 10 application of sometimes 600 to 800 TDS, you're not 11 suggesting that that's a reason to change Vernalis standard 12 of 455 TDS? 13 MR. MCGAHAN: No, I'm not. 14 MR. HERRICK: And you're not suggesting that TDS's in 15 excess of any standard are not potentially harmful to 16 crops? 17 MR. SEXTON: I'm going to object. 18 MR. HERRICK: To use a double negative. 19 MR. SEXTON: I'm going to object. Mr. McGahan's 20 testimony is in the record. He's not suggesting anything. 21 He's being cross-examined. 22 MR. HERRICK: I just want to explore the implication 23 that was made, Mr. Chairman, with regards to certain areas 24 using the TDS higher than the .7 EC. 25 C.O. CAFFREY: Maybe just take the word "suggest" out CAPITOL REPORTERS (916) 923-5447 5139 1 of your question, maybe it works. 2 MR. MCGAHAN: Our primary purpose, for example -- 3 MR. SEXTON: No. No. Let him re-ask the question. 4 MR. HERRICK: Is any of your testimony directed 5 towards whether or not application of water in excess of 6 the .7 EC is or is not beneficial to crop production? 7 MR. MCGAHAN: Primary purpose, for example, for the 8 recycling project is to reduce selenium. Selenium is not a 9 problem to the agricultural crops. It's the salt that's in 10 the water. So we try to maximize the amount of selenium 11 that can be reduced in the drainage water while not 12 applying water so high in salt that it's damaging to the 13 crops. 14 MR. HERRICK: Now, you recognize, do you not, that 15 the standard at Vernalis with regard to salinity is one of 16 concentration not of load? 17 MR. MCGAHAN: Yes. 18 MR. HERRICK: And your Figure 11 deals with a 19 decreased load into the river; is that correct? 20 MR. MCGAHAN: That's correct. 21 MR. HERRICK: Would you agree that a decreased load 22 but at a higher concentration could affect the salinity 23 standard at Vernalis? 24 MR. MCGAHAN: The salinity concentration at Vernalis, 25 in my opinion, is a concentration of the load that is in CAPITOL REPORTERS (916) 923-5447 5140 1 the river at that time as well as the volume of water. 2 MR. HERRICK: Well, that is concentration, right? 3 MR. MCGAHAN: That's how you come up with 4 concentration, yes. 5 MR. HERRICK: So depending on the flow in the river, 6 a decreased load may or may not have an effect on a 7 downstream concentration? 8 MR. MCGAHAN: That's correct. 9 MR. HERRICK: What actions, or efforts, if any, are 10 the entities within the service area taking to regulate the 11 concentration entering the river, of salinity? 12 MR. MCGAHAN: In my opinion -- 13 MR. HERRICK: I'm sorry, of selenium? I apologize. 14 MR. MCGAHAN: In my opinion, the discharge from the 15 drainage area -- the impact on the concentration at 16 Vernalis is -- at Vernalis is more impacted by the load 17 coming from our area than the concentration, because 18 concentration is effected by many things that occur 19 downstream, flows coming in from many different sources. 20 And the volume of water in our discharge is very 21 small for the most part, compared to the flow at Vernalis. 22 Therefore, any change in load, generally, results in a 23 similar change in concentration at Vernalis. 24 MR. HERRICK: Let's explore that, then. Let's do a 25 hypothetical. Let's have a set flow from salt -- at the CAPITOL REPORTERS (916) 923-5447 5141 1 point of Salt and Mud Sloughs entering the river, let's 2 have a set flow at that point all the way down to Vernalis. 3 And let's say in one year the service area discharges 4 10,000 tons from June to September, I don't know if that's 5 realistic, but that's the hypothetical. That is the first 6 given. 7 The second given is: The next year you have less 8 flow in the river at that time and now you're discharging 9 9 tons. Would the concentration -- everything else held 10 steady, would the concentration at Vernalis increase or 11 decrease? 12 MR. SEXTON: Objection. I think Mr. Herrick referred 13 to 10,000 the first time and 9 tons the second time. And I 14 think we're going to have an ambiguity in the question. 15 C.O. CAFFREY: Is the question ambiguous to the 16 witness? 17 MR. MCGAHAN: I do need clarification on what's 18 varying here. 19 C.O. CAFFREY: All right. Try it, again, 20 Mr. Herrick, please, sir. 21 MR. HERRICK: Certainly. If I said 9 instead of 22 9,000 -- I'm trying to compare two different events, two 23 different situations. The first one is flow and other 24 discharges, everything is constant from the point of Mud 25 and Salt Slough entering the river down to Vernalis. CAPITOL REPORTERS (916) 923-5447 5142 1 And at that period that we're talking about, let's 2 just make it summer months, the service area is discharging 3 10,000 tons of salt. If we have the next year -- let's 4 hold everything different. The next year, same flow, but 5 let's do 9,000 tons, would you agree that that would 6 decrease the salinity at Vernalis, generally? 7 MR. MCGAHAN: The concentration, yes. 8 MR. HERRICK: Great. Now, let's do the same thing 9 but let's change the flow. Let's say that you still have 10 10 tons, but now you have less flow in the river for that 11 year, what would be the resulting effect on the salinity 12 standard at Vernalis? 13 MR. MCGAHAN: 10,000 tons? 14 MR. HERRICK: Same tons, let's hold that steady. 15 MR. MCGAHAN: And less flow in the river? 16 MR. HERRICK: Correct. 17 MR. MCGAHAN: The concentration would increase. 18 MR. HERRICK: Now, if you had less flow in the river 19 and you went lower than 10 tons, let's just pick 9 tons, 20 can you tell us what the effect of salinity at Vernalis 21 would be? 22 MR. MCGAHAN: No, it depends on the amount of the 23 reduction. 24 MR. HERRICK: Okay. And depending on the amount of 25 reduction you could, actually, have an increase in the CAPITOL REPORTERS (916) 923-5447 5143 1 concentration; is that correct? 2 MR. MCGAHAN: It is possible. 3 MR. HERRICK: So what I'm getting at, it's possible 4 then to, actually, decrease the load and the net effect, 5 not necessarily because of the decrease, but the net effect 6 is a change -- an adverse change in the salinity at 7 Vernalis? 8 MR. MCGAHAN: Right, but it's caused by other 9 factors, which in this case, the flow. 10 MR. HERRICK: Well, let's explore that, then. If 11 your -- if the service area is reusing its tailwater, and I 12 understand you to say that they're either mixing it, or 13 reapplying it, or putting it to other uses; is that 14 correct? 15 MR. MCGAHAN: Generally, reapplying it, recirculating 16 it on farms so that it's not a part of the drainage drain. 17 MR. HERRICK: Does that recirculation have the effect 18 of concentrating the salt in the eventual discharged water? 19 MR. MCGAHAN: If you take tailwater out the 20 concentrations would be greater, generally, yes. 21 MR. HERRICK: So if you're adding a higher 22 concentration of water to the river, again, could that 23 higher concentration, even if it's less flow, could that 24 higher concentration have an adverse effect to the Vernalis 25 water quality standard? CAPITOL REPORTERS (916) 923-5447 5144 1 MR. MCGAHAN: The amount of tailwater that's part of 2 the drainage drain being compared to the flow at Vernalis 3 is very insignificant. The answer is, yes, it would have a 4 minor -- a minor impact, but the volume of tailwater that's 5 in our drainage drain compared to the flow at Vernalis is 6 so insignificant you probably couldn't measure it. 7 MR. HERRICK: Certainly. I'm not trying to blame the 8 service area in the grasslands for the Vernalis salinity 9 standard as a whole. But we're trying to explore your 10 expert opinion as to what actions would help, or hurt 11 meeting that standard. 12 And so in your expert opinion is it sufficient to 13 control loads entering the river, or do other things have 14 to be controlled? 15 MR. SEXTON: In order to come up with what result? 16 The question is ambiguous, Mr. Chairman. 17 C.O. CAFFREY: Do you understand the question, 18 Mr. McGahan? 19 MR. MCGAHAN: Maybe you can repeat it. 20 C.O. CAFFREY: Go ahead, Mr. Herrick. 21 MR. HERRICK: In your expert opinion, do you believe 22 that there should only be control to the loads of salt 23 entering the river in order to help meet -- in order to 24 maintain a water quality standard at Vernalis? 25 MR. MCGAHAN: As we've discussed, there is many CAPITOL REPORTERS (916) 923-5447 5145 1 variables that go into that. But if everything else is 2 constant the -- its load, that impacts the concentration at 3 Vernalis. 4 MR. HERRICK: I don't mean to be argumentative. I 5 thought we just went through an example which clarified 6 that it's the concentration entering the river, not the 7 load that was important. 8 Do you disagree with that? 9 MR. MCGAHAN: You gave me a hypothetical. Now, I 10 understood you to ask me what's my opinion as to what would 11 impact the concentration at Vernalis most. And my opinion 12 is that it's the load in these up-flow barriers that would 13 have the most impact on the concentration at Vernalis. 14 MR. HERRICK: Well, how would the control of load 15 affect the salinity standard if there is high flows? 16 MR. MCGAHAN: Could you repeat the question? 17 MR. HERRICK: How would the control of load affect 18 the salinity standard at Vernalis if there are high flows? 19 MR. MCGAHAN: You're adding another variable. If the 20 flows change in the river, certainly, it changes 21 concentration, also. So if -- so I don't understand what 22 you're getting at. 23 MR. HERRICK: Well, what I'm getting at is a 24 concentration is load plus flow. But you keep saying it's 25 controlling the load that's important. CAPITOL REPORTERS (916) 923-5447 5146 1 Isn't it important -- isn't it rather the case 2 that controlling the concentration at times of low flows is 3 the key to maintaining the Vernalis water quality standard? 4 MR. SEXTON: Is your question from the Bypass Project 5 service area? 6 MR. HERRICK: No. It's a general question. 7 MR. SEXTON: I'm going to object to the form of the 8 question, Mr. Chairman. Mr. Herrick has on two or three 9 occasions now asked for Mr. McGahan's opinion as an expert. 10 And he's given an opinion. And what he's doing is he's 11 trying to intertwine hypotheticals with changing variables 12 into an argument to try to get Mr. McGahan to change his 13 opinion. And I don't think it's a proper form of 14 cross-examination. 15 MR. HERRICK: To the contrary -- 16 C.O. CAFFREY: Go ahead, Mr. Herrick, your comment, 17 please. 18 MR. HERRICK: To the contrary, Mr. Chairman. The 19 purpose of cross-examination of an expert is to propose 20 various hypotheticals and to explore the opinions of the 21 expert. If the rule is I can't try to see if he'll change 22 his mind, or change his position, there's no purpose in 23 cross-examining an expert. 24 MR. SEXTON: That wasn't the purpose of my objection, 25 Mr. Chairman. CAPITOL REPORTERS (916) 923-5447 5147 1 C.O. CAFFREY: No. I think Mr. Sexton's observation 2 is one that has some merit in that you are asking him 3 hypotheticals with, perhaps, one variable, or a limited 4 number of variables and then going on to other questions 5 trying to use that as a basis. 6 I guess what I'm inclined to do at this point is 7 to instruct the witness that if you don't agree that the 8 question is answerable, simply stating that is the answer. 9 You're not required to create an answer if you don't feel 10 comfortable with it in your professional expertise. 11 So to the extent that you agree with Mr. Sexton's 12 characterization of the difficulty of those questions in 13 terms of answering them, you may, please, say so, sir. 14 Go ahead, Mr. Herrick. 15 MR. HERRICK: Mr. Chairman, the objection came after 16 I made the question not specific to the drainage protection 17 area, but after I made it apply more, generally, throughout 18 the San Joaquin River system. Am I to imply that your 19 ruling means that I shouldn't ask him questions beyond the 20 drainage protection area in the Grassland Bypass Project? 21 C.O. CAFFREY: Actually, it wasn't necessarily a 22 ruling, per se. I was merely instructing the witness that 23 if you ask him a question that he doesn't feel is 24 answerable, he doesn't have to answer it other than to say 25 he doesn't know the answer. CAPITOL REPORTERS (916) 923-5447 5148 1 I'm not trying to restrict your questioning. You 2 may try the question, again, but I'm, again, simply telling 3 the witness, use his expertise as he can. And we do not 4 expect him to come up with miracles in his answers. If he 5 doesn't agree that the question is a question that is 6 answerable, then, he can simply say that. 7 MR. HERRICK: Mr. McGahan, would you agree that the 8 ability -- the historic meaning of the Vernalis water 9 quality standard has not been a problem in wet years? 10 MR. MCGAHAN: It may mean that it has been met in wet 11 years, yes. 12 MR. HERRICK: And is it your understanding that's 13 because when there's plenty of flow, the concentrations of 14 salt are lower and the standard is met? 15 MR. MCGAHAN: Right. 16 MR. HERRICK: Is it your understanding that times 17 when the Vernalis water quality standard are not met are, 18 generally, in below normal or critical year types? 19 MR. MCGAHAN: When the flows in the river are very 20 low. 21 MR. HERRICK: Let's limit this next line of questions 22 to those times of low flow. I'll just say below normal and 23 critical years. 24 If you have low flow and are trying to control the 25 salinity at Vernalis, what would you try to control in CAPITOL REPORTERS (916) 923-5447 5149 1 order to control that salinity at Vernalis? 2 MR. MCGAHAN: I think we're making this a real 3 complicated situation. I think the answer is that the 4 concentration at Vernalis depends on the load of whatever 5 you're talking about, salt in this case, and the flow at 6 that location. And as the -- as the discharge from the 7 drainage area depends on the load and flow from the 8 drainage area. 9 My main point is that, generally, the volume of 10 water from the drainage area is very small compared to the 11 volume of water at Vernalis. Such that if you -- if you 12 double the volume of water coming out of the drainage area 13 you will have the concentration. But if it's an 14 insignificant volume compared to the volume at Vernalis, it 15 does not make any difference whether you have the 16 concentration of the drainage area or not. Because the 17 volume of water is large at Vernalis, it will have the same 18 impact. 19 MR. HERRICK: Exactly. And your testimony does not 20 cover the percentage, or how much the drainage from the 21 drainage protection area affects the Vernalis standard; is 22 that correct? 23 MR. MCGAHAN: Restate the question. 24 MR. HERRICK: Your written testimony doesn't cover 25 what percentage of the drainage protection area -- what's CAPITOL REPORTERS (916) 923-5447 5150 1 the percentage affect on the Vernalis standard from that 2 area; is that correct? 3 MR. MCGAHAN: That's correct. 4 MR. HERRICK: And so I'm not getting into that 5 specific, but I am getting into, generally, how it may 6 affect the Vernalis salinity standard. 7 MR. MCGAHAN: And I thought that's what I was trying 8 to get, that also. 9 MR. HERRICK: Correct. Now, the discharges of salt 10 that come from the service area, it's not pounds of salts 11 in sacks, it's in drainage water; is that correct? 12 MR. MCGAHAN: That's correct. 13 MR. HERRICK: And as you just said, you could 14 discharge virtually any amount of salt if you had the 15 proper concentration and still have no effect on the 16 downstream water quality standard; is that correct? 17 MR. MCGAHAN: Would you restate the question? 18 MR. HERRICK: You could discharge a tremendous 19 amount, I'll use, a large amount of salt from that area if 20 it were properly diluted with some sort of amount of water. 21 You could discharge any amount and have no affect on the 22 Vernalis standard; is that correct? 23 MR. MCGAHAN: That's correct. 24 MR. HERRICK: Okay. 25 MR. MCGAHAN: But the situation is that -- I -- the CAPITOL REPORTERS (916) 923-5447 5151 1 volume of water discharged from the area is, for the most 2 part, very small compared to Vernalis. It would have to be 3 a case where the volume was equal to or greater to the 4 Vernalis flow, then the answer to your question would be, 5 yes. 6 MR. HERRICK: Okay. I don't mean to be 7 argumentative, but that is what I'm getting at, not the 8 percentage that affects it, but you've said on a number of 9 occasions, no, it's the load entering the river and the 10 flow. And I've asked you: Isn't it the concentration of 11 what's entering the river, in low-flow events, isn't it the 12 concentration of the drainage that has the effect on the 13 water quality standard downstream? 14 MR. MCGAHAN: If the volume of the water coming from 15 the drainage is equivalent to what's at Vernalis, yes. 16 MR. HERRICK: Okay. Thank you. I believe on 17 cross-examination you confirmed that the Grassland Bypass 18 Project has allowed -- excuse me, has resulted in an 19 increase in deliveries to the wetland areas of the 20 watershed; is that correct? 21 MR. MCGAHAN: Yeah. The increase in deliveries were 22 as a result of them obtaining additional water supplies. 23 What our Grassland Bypass Project did is by taking the 24 drainage water out of those delivery channels, it made them 25 available to deliver water when and where and in quantities CAPITOL REPORTERS (916) 923-5447 5152 1 that they wanted. 2 MR. HERRICK: And does the wetlands have any 3 different affect on the concentration of salts than does 4 the application of delivered water to agricultural areas? 5 MR. MCGAHAN: Again, that's -- it points out the 6 difference. We have our drainage area. I'm drainage 7 coordinator for that area. Certainly, I have knowledge of 8 what's going on in the wetlands, but I can't really speak 9 for them. They ought to answer that question themselves. 10 MR. HERRICK: Could you explain to us how subsurface 11 tile drainage works? I'll phrase it a different way. 12 You mention that the drainage area, the service 13 area is intercepting its tile drainage and reapplying the 14 water, or mixing the water before it's reapplied; is that 15 correct, generally? 16 MR. MCGAHAN: I'm sorry, I missed the last part of 17 that. 18 MR. HERRICK: You said that the service area has 19 subsurface drainage; is that correct? 20 MR. MCGAHAN: Grassland drainage area is -- is -- has 21 a perched water table problem. There are -- there are 22 layers in the soil that prevent the water from percolating 23 down. And the water tends to rise into the root zone of 24 the crop. And to prevent that from happening, the 25 subsurface tile lines are installed, generally, horizontal CAPITOL REPORTERS (916) 923-5447 5153 1 lines 6 to 7, 8 feet in the ground with holes in them. And 2 this perched water rises up towards the soil towards the 3 crop root zone and goes into the pipes and is carried away, 4 thus preventing the water from entering the root zone. 5 MR. HERRICK: You also said in your testimony, I 6 believe, that there's general slope, the drained area is 7 steeply sloping, not flat; is that correct? 8 MR. MCGAHAN: That's correct. 9 MR. HERRICK: And which way does it slope? 10 MR. MCGAHAN: It slopes from the southwest towards 11 the northeast towards the San Joaquin River. 12 MR. HERRICK: And is there anything in between the 13 service area in the San Joaquin River? 14 MR. SEXTON: A bus, or a camel, or what? Between 15 where and where? 16 MR. HERRICK: I don't think that's an unclear 17 question, but I'll, certainly, restate it, Mr. Chairman. 18 C.O. CAFFREY: Thank you, Mr. Herrick. 19 MR. HERRICK: Does the service area abut the San 20 Joaquin River? 21 MR. MCGAHAN: A portion of it does. The Grassland 22 service area, a portion of it, a small portion it is 23 adjacent to the river, but for the most part it's not. 24 MR. HERRICK: And do all of the lands have subsurface 25 tile drainage, all the lands of the service area? CAPITOL REPORTERS (916) 923-5447 5154 1 MR. MCGAHAN: No, just a portion of it. 2 MR. HERRICK: And what happens to that water in those 3 areas without drains? By "that water" I mean the water 4 that would have run into a drain. 5 MR. MCGAHAN: The reason some of the lands don't have 6 tile systems is there's no perched water table problem. 7 The water table is lower. So for the most part, water 8 applied to those lands, any that is percolated to root zone 9 would go down to a water level but it's below the root zone 10 and does not cause a problem. 11 MR. HERRICK: Is that subsurface water in those areas 12 without tile drains, is that connected to the San Joaquin 13 River at all, hydrologically? 14 MR. MCGAHAN: Generally, it would be on the up-slope 15 side, so it would be further away from the San Joaquin 16 River. 17 MR. HERRICK: I'm just trying to explore that. Does 18 that water flow into somebody else's tile drain eventually? 19 MR. MCGAHAN: It could. 20 MR. HERRICK: Does water flow into the river 21 subsurface, that is, I'll say, missed by tile drain? 22 MR. MCGAHAN: I believe, certainly, there's water 23 that flows into the San Joaquin River. I'm not sure where 24 and in what reaches. Whether it's missed by the tile -- I 25 don't know that you'd characterize it as missed by the tile CAPITOL REPORTERS (916) 923-5447 5155 1 drains, but it's -- part of the groundwater surface could 2 flow into the river. 3 MR. HERRICK: Without stating the obvious, then, 4 there's little or no control over that drainage that enters 5 the river? 6 MR. MCGAHAN: That's correct. 7 MR. HERRICK: If the Board will pardon me for one 8 moment, I, too, was expecting the Department of Interior. 9 C.O. CAFFREY: That's perfectly all right, 10 Mr. Herrick. Would you like us to go off the record so you 11 can take a couple minutes? 12 MR. HERRICK: No. I'll just briefly -- 13 C.O. CAFFREY: All right. 14 MR. HERRICK: Mr. McGahan, it's my understanding that 15 there has been some attempt to coordinate the initial 16 spring drainage from the area with the spring pulse flow 17 for fish; is that correct? 18 MR. MCGAHAN: I think you might be confusing the 19 discharge from the wetland areas with our discharge from 20 our drainage area. What's been controlling our discharge 21 from our drainage area is our selenium load targets. 22 Certainly, we're aware of the need for downstream folks to 23 control that. 24 We are interested in, as we get along in this 25 process, being able to do that. We think that's part of a CAPITOL REPORTERS (916) 923-5447 5156 1 long-term plan. To be honest with you, we've been so 2 concentrated in meeting our load limits, that we've 3 probably not been able to change our discharges to 4 correspond with those pulse flows. 5 MR. HERRICK: That's not my understanding. Do you 6 have an understanding that the wetland areas are trying to 7 coordinate their drainage with this spring pulse flow for 8 fish? 9 MR. MCGAHAN: I had heard that they might be, yes. 10 MR. HERRICK: But you have no knowledge of the 11 districts within the service area making that same effort? 12 MR. MCGAHAN: No. 13 MR. HERRICK: Mr. McGahan, doesn't the use agreement 14 for the Grassland Bypass Project require some sort of 15 notification to downstream users in certain events? 16 MR. MCGAHAN: I believe it does. 17 MR. HERRICK: And could you just, briefly, tell us 18 what those events would be? 19 MR. MCGAHAN: I don't recall the exact details of 20 that. I did not review that before I came. 21 MR. HERRICK: Have you been party to any system that 22 is set up that would, in fact, notify downstream entities 23 in those events, whatever they may be? 24 MR. MCGAHAN: No, not directly. 25 MR. HERRICK: Okay. Is that being done? Do you know CAPITOL REPORTERS (916) 923-5447 5157 1 of a system being set up for the notification? 2 MR. MCGAHAN: Yes. 3 MR. HERRICK: And do you know -- well, maybe you 4 don't know that. Your Exhibit Number 11 showed, I'll say, 5 the watershed I guess decreasing discharges from '95 6 through '96 of loads; is that correct? 7 MR. MCGAHAN: Salt loads, yes. 8 MR. HERRICK: Okay. And the discharge from your 9 area -- excuse me. The totals discharged in 1997 was 10 450,000 tons; is that correct? 11 MR. MCGAHAN: That's correct. 12 MR. SEXTON: Do you want this up there? 13 MR. HERRICK: No, that's all right. Do you have any 14 proposal as to how the discharge of 400,000 tons of salt 15 might be coordinated in order to protect the -- in order to 16 help meet the salinity standard at Vernalis? 17 MR. MCGAHAN: Again, this points up a reason why we 18 showed this chart, that the grassland drainage area was 19 140,000 tons. That's the area that I'm familiar with and 20 that I have some impact on how they operate and how they 21 discharge their drainage load. 22 I do not on the overall grassland watershed which 23 is a much larger area and includes a lot of other entities 24 that are not part of our regional drainage group. 25 MR. HERRICK: Do you think that different areas CAPITOL REPORTERS (916) 923-5447 5158 1 should be treated differently in the regulation of salt 2 discharges into the river? 3 MR. MCGAHAN: I have no opinion on that. 4 MR. HERRICK: That's all I have. Thank you very 5 much. 6 C.O. CAFFREY: Thank you, Mr. Herrick. 7 Mr. Nomellini. 8 ---oOo--- 9 CROSS-EXAMINATION OF SAN LUIS AND 10 DELTA-MENDOTA WATER AUTHORITY 11 BY CENTRAL DELTA PARTIES 12 BY DANTE JOHN NOMELLINI 13 MR. NOMELLINI: Mr. Chairman, Members of the Board, 14 Dante John Nomellini for Central Delta parties. I'd like, 15 if possible, to impose on Mr. Sexton to put up his Exhibit 16 Number 10. 17 MR. BRANDT: Figure 10. 18 MR. SEXTON: Which figure? 19 MR. NOMELLINI: It's your Exhibit 10 -- oh, okay. 20 It's the one that shows the drainage area. I'm sorry. 21 MR. SEXTON: Okay. The blowup or the full map? 22 MR. NOMELLINI: It's the map. Yeah, it's Figure 2, 23 excuse me. All right. 24 Mr. McGahan, as you gather from my questioning I 25 don't quite have the same enthusiasm for the success of the CAPITOL REPORTERS (916) 923-5447 5159 1 solution that you have, but I'd like to learn a little bit 2 more about it through this cross-examination. 3 If we focus on this Figure 2 of Exhibit 10, do you 4 know where the Merced River intersects the San Joaquin 5 River? 6 MR. MCGAHAN: Yes, I do. 7 MR. NOMELLINI: And that's in the upper left-hand 8 corner on the screen; is that correct? 9 MR. MCGAHAN: Yes, the top part of the map. 10 MR. NOMELLINI: All right. Now, with regard to the 11 salt loading in the San Joaquin River at that particular 12 point, do you know whether or not the salt loading at that 13 point has gone up or gone down since 1995? 14 MR. MCGAHAN: The -- what I do have information on 15 and presented is coming out of Salt Slough and Mud Slough, 16 so the discharge from this area. I do not recall, for 17 example, downstream of the Merced what the numbers are. 18 MR. NOMELLINI: Okay. Do you have an impression on 19 whether or not it's increasing or decreasing? 20 MR. MCGAHAN: I have not looked at the data. 21 MR. NOMELLINI: Okay. I gather you're not disturbed 22 by the fact that if we look at Exhibit 11, then I can just 23 call your attention to it, then, with the bar graph. And 24 Mr. Jackson asked questions about the decrease of 100,000 25 tons with regard to the drain area, but a decrease only of CAPITOL REPORTERS (916) 923-5447 5160 1 50,000 tons with regard to the Salt and Mud Slough, so that 2 someone else is increasing. 3 Do you agree that it looks like the salt load from 4 others is increased based on Exhibit 11? 5 MR. MCGAHAN: Yes. As I said, I understand the math. 6 Bar load -- if the total discharge is decreasing less than 7 the discharge in salt from our drainage area has decreased, 8 someone else is increasing. 9 However, it does look to me like in both cases the 10 load is decreasing, both from Mud and Salt Slough and from 11 the drainage area. 12 MR. NOMELLINI: Now, we extend that to my questioning 13 with regard to a point in the San Joaquin River just 14 upstream of the Merced. Do you have that same general 15 conclusion that the salt load is decreasing? And we're 16 taking about the years '95, '96, and '97. 17 MR. MCGAHAN: Just upstream of the Merced? 18 MR. NOMELLINI: Yes. 19 MR. MCGAHAN: It depends on what flows are in the 20 river. 21 MR. NOMELLINI: I'm talking about salt load now. 22 Total salt load, same thing that we were talking about in 23 Exhibit 11, had nothing to do with flow on the river. 24 MR. MCGAHAN: Well -- 25 MR. NOMELLINI: As I understand it, technically, you CAPITOL REPORTERS (916) 923-5447 5161 1 would agree -- 2 MR. MCGAHAN: I would disagree. 3 MR. NOMELLINI: Okay. 4 MR. MCGAHAN: And the reason I would disagree, in 5 water year '95 there were significant flows to the San 6 Joaquin River from Panoche/Silver Creek. It's located in 7 this lower part of this area. The majority of those flows 8 discharge directly into the San Joaquin River. Those flows 9 then go down the river and flow past the point you're 10 talking about. Panoche/Silver Creek is high in salt 11 compared to the normal runoff from the west side. So there 12 is another input that could be significant. So that's the 13 point of my answer. 14 MR. NOMELLINI: I wasn't trying to contribute blame. 15 I'd love to give all the blame to Mr. Birmingham's clients 16 in the Westlands which you've pointed to. But my question 17 is with regard to the total salt load in the San Joaquin 18 River just above the Merced. 19 And I gather -- and what I'm worried about is 20 whether or not, and I'm going to pursue it further, whether 21 or not you believe nothing further needs to be done to 22 solve the San Joaquin River salinity problem. 23 MR. MCGAHAN: That was not my testimony. 24 MR. NOMELLINI: Okay. Now, in terms of trying to 25 elicit, one last time and I'll leave you alone, are we CAPITOL REPORTERS (916) 923-5447 5162 1 improving, looking at '95, '96, '97, are we headed in the 2 right direction with regard to total salt load at a point 3 just above the Merced, are we remaining static, or are we 4 going backwards? Are we still going in the wrong 5 direction? 6 MR. MCGAHAN: And that's why I'm enthusiastic about 7 our project. But our project area, you have to limit it to 8 that. We're -- with this 100,000-acre drainage area here 9 we, because of our efforts to reduce selenium, have reduced 10 salt. We think we are doing many things to manage our 11 drainage to ultimately contribute and help solve the 12 problem in the San Joaquin River. And we feel a reduction 13 of 100,000 tons, from 240,000 to 140,000, is very 14 significant for that area. 15 MR. NOMELLINI: Okay, I give up. Now, let's talk 16 about the practices in your particular drainage area, the 17 drainage control area. And you've talked about recycling 18 the tailwater into the irrigation water, which adds to the 19 TDS of the irrigation water; is that correct? 20 MR. MCGAHAN: Not tailwater. Tailwater is, 21 generally, of good quality. What we recycle, the 22 subsurface drainage water that is recycled is high in salt. 23 Tailwater is water that runs off the end of the field. And 24 so it does not -- it's surface water. Subsurface drainage 25 water would be high in salinity. CAPITOL REPORTERS (916) 923-5447 5163 1 MR. NOMELLINI: Okay. Well, let's stay with the 2 tailwater. Is tailwater exactly the same water quality as 3 the applied water, or slightly degraded? 4 MR. MCGAHAN: Slightly degraded. 5 MR. NOMELLINI: Okay. And tile drainage water is 6 significantly more degraded than tailwater? 7 MR. MCGAHAN: Yes. 8 MR. NOMELLINI: Okay. When we add in, you're 9 capturing tailwater as well, are you not? 10 MR. MCGAHAN: We have a -- we are separating our 11 tailwater from our subsurface drainage water. 12 MR. NOMELLINI: And what do you do with the tailwater 13 once it's separated from your drainage water? 14 MR. MCGAHAN: Generally, put it back into the 15 irrigation system. 16 MR. NOMELLINI: Okay. So we're taking tailwater and 17 the subsurface tile drainage water and putting that back 18 into the irrigation water. Is that consistent with your 19 testimony? 20 MR. MCGAHAN: That's true. They're different 21 systems. They're not in the same stream and that's 22 significant to us, but maybe in your example, it's not. 23 MR. NOMELLINI: Okay. All right. So on a particular 24 farm it might be tailwater being integrated for a 25 downstream user, or down-ditch user; and for the tile CAPITOL REPORTERS (916) 923-5447 5164 1 drainage water it could be on the same farm? 2 MR. MCGAHAN: Right. 3 MR. NOMELLINI: Okay. Now, when we do that we add to 4 the salinity of the irrigation water; is that correct? 5 MR. MCGAHAN: That's correct. 6 MR. NOMELLINI: All right. And that adds to the salt 7 that's accumulated in the root zone, does it not? 8 MR. MCGAHAN: Yes. But I would like to qualify that, 9 as I mentioned we are very careful about that concentration 10 of water. We manage that very closely. In fact, I stated 11 that that concentration is 600 to 800 parts per million, 12 but that's not all the time. 13 Some crops you may not be able to -- for example, 14 young tomato crops, you may not be able to use that quality 15 of water. So there's a very complicated management program 16 that goes on so that we don't create problems. 17 MR. NOMELLINI: Okay. Do you agree that increased 18 salinity of applied water will result -- given the same 19 amount of applied water, will result in increase soil 20 salinity within the root zone? 21 MR. MCGAHAN: I don't necessarily agree with that, 22 no. 23 MR. NOMELLINI: Okay. Can you give me a reason why 24 you disagree with that statement? 25 MR. MCGAHAN: The soil salinity depends on many CAPITOL REPORTERS (916) 923-5447 5165 1 things, including the ability to -- the leaching fraction 2 of the water that goes below the root zone. If we carry 3 the salts below the root zone that are added, generally, 4 the soil salinity will not increase over time. 5 MR. NOMELLINI: Okay. All right. Maybe you didn't 6 understand me when I said "given the same amount of applied 7 water." If you kept the amount of applied water the same 8 and you simply increased the salinity of the applied water, 9 would you not agree that the salt accumulated in the soil 10 in the root zone would increase? 11 MR. MCGAHAN: And I have a different answer. 12 MR. NOMELLINI: Okay. 13 MR. MCGAHAN: If the amount of water you apply is 14 equal to the evapotranspiration of the crop, then I agree 15 with your premise. 16 MR. NOMELLINI: Okay. 17 MR. MCGAHAN: If it's not, and we apply more water 18 than the crop needs, which allows for a leaching fraction, 19 which is the practice on the west side, then, generally, 20 that would not be the case. 21 MR. NOMELLINI: Okay. You would agree that the 22 higher the salinity of water that's being used the greater 23 the leaching factor? 24 MR. MCGAHAN: Yes. 25 MR. NOMELLINI: Okay. So as we make the applied CAPITOL REPORTERS (916) 923-5447 5166 1 water more salty, the farmers in your area have to apply 2 more water -- 3 MR. MCGAHAN: No. 4 MR. NOMELLINI: -- to their fields? Okay. Now, 5 explain that one. 6 MR. MCGAHAN: Okay. And this is a complicated 7 situation. 8 MR. NOMELLINI: Yes. 9 MR. MCGAHAN: And I appreciate that. The San Joaquin 10 Valley Drainage Program stated that there was excess 11 leaching occurring. They quoted a number about .75 12 acre-feet per acre was the depercolation occurring. And in 13 their report the goal was to reduce that to .38 acre-feet 14 per acre. So our area is subject to the same situation. 15 We were overleaching. We were leaching more than we needed 16 to. And because of our control practice, we are trying to 17 match the leaching with what is required. 18 And so in our case we're -- as we reduce the 19 leaching fraction, we are still, in my opinion, able to 20 maintain a proper leaching to push the salts below the root 21 zone and to maintain the soil salinity in the soil profile. 22 MR. NOMELLINI: Okay. So it's a matter of getting to 23 the point of equilibrium and then thereafter you would 24 agree that my questioning would lead you to the conclusion 25 that once you reach that proper salt balance adding salt in CAPITOL REPORTERS (916) 923-5447 5167 1 the applied water would require increasing leaching 2 fraction? 3 MR. MCGAHAN: Yes. 4 MR. NOMELLINI: Okay. All right. With regard to 5 this perched water table, you indicated that, in general, 6 it slopes from the southwest towards the San Joaquin River? 7 MR. MCGAHAN: That's correct. 8 MR. NOMELLINI: And is that generally true throughout 9 this area shown on Figure 2? 10 MR. MCGAHAN: It's generally true, of course, that 11 the ground slopes to the southwest -- excuse me, to the 12 northeast. The -- the water table does not always follow 13 the slope of the ground. For example, there was this 14 groundwater divide that was -- has been reported at times 15 out in this area. 16 MR. NOMELLINI: The Johnson Divide. 17 MR. SEXTON: Hold on. 18 MR. MCGAHAN: Okay. In an area parallel to our 19 grassland drainage area on the southwest side, it's been 20 reported there was a groundwater divide in that area and 21 supposedly the groundwater, the gradient was to the 22 southwest from there. 23 MR. NOMELLINI: All right. You say "supposedly," 24 does that mean you don't know? 25 MR. MCGAHAN: That means I think it changes depending CAPITOL REPORTERS (916) 923-5447 5168 1 on the hydrologic conditions in that area. 2 MR. NOMELLINI: All right. Staying on the 3 groundwater divide, is that a physical obstruction like a 4 mound of rock that goes through the underground? 5 MR. MCGAHAN: No. It's a hydraulic. It has to do 6 with a water table. 7 MR. NOMELLINI: So there's a depression in the 8 groundwater level on the west side of this divide? 9 MR. MCGAHAN: When it exists, yes. 10 MR. NOMELLINI: Okay, when it exists. And 11 sometimes -- if that depression was filled with water, then 12 the flow would go from the southwest to the northeast to 13 the river? 14 MR. MCGAHAN: Towards the river, yes. 15 MR. NOMELLINI: Okay. So it depends on the 16 conditions that the groundwater is at a given location 17 there's a localized depression, is that what we're talking 18 about? 19 MR. MCGAHAN: Yes. 20 MR. NOMELLINI: So it depends on a number of factors, 21 groundwater pumping as well as percolation and factors like 22 that? 23 MR. MCGAHAN: It's not necessarily dependent on 24 groundwater pumping since you brought it up. 25 MR. NOMELLINI: Okay. CAPITOL REPORTERS (916) 923-5447 5169 1 MR. MCGAHAN: It's more I think a hydro-geological 2 effect. This area -- as I mention, this area does have 3 groundwater, but all of the grassland drainage area, the 4 100,000 acres, does not have usable groundwater. The point 5 is you could not irrigate the entire area with just 6 groundwater, you have to have surface inflows. 7 MR. NOMELLINI: So there's a varying amount of 8 groundwater flow in your area? 9 MR. MCGAHAN: The point I was making is that not all 10 the groundwater underneath the area is usable for 11 irrigation. 12 MR. NOMELLINI: Okay. 13 MR. MCGAHAN: You mentioned that the divide was 14 dependent upon groundwater pumping. And that's not the 15 case always. And all of the area does not have usable 16 groundwater. 17 MR. NOMELLINI: All right. What I wanted to 18 understand was how that variation affected the water level 19 on the west side of the so-called "divide." 20 MR. MCGAHAN: Could you clarify as to how what 21 affects it? 22 MR. NOMELLINI: How does usable groundwater 23 availability affect that? Are you saying it doesn't 24 because there's no groundwater pumping in that area west of 25 the divide? CAPITOL REPORTERS (916) 923-5447 5170 1 MR. MCGAHAN: Generally, it's my understanding that 2 there is no groundwater pumping up there. 3 MR. NOMELLINI: Okay. And you would say, then, there 4 is also very little groundwater recharge from the natural 5 water flow off the mountains; is that what's occurring 6 there? 7 MR. MCGAHAN: That's a different question. I think 8 in certain times there can be contribution to the drainage 9 problem from up slope. 10 MR. NOMELLINI: All right. Why is it going down on 11 the west side of the divide? 12 MR. MCGAHAN: Sometimes it doesn't when the 13 hydrologic conditions are such to fill it up. 14 MR. NOMELLINI: Okay. When it goes down, why is it 15 going down? 16 MR. MCGAHAN: I think it's a reservoir and over time 17 it drains down slope. 18 MR. NOMELLINI: Okay. What do you mean by "down 19 slope"? 20 MR. MCGAHAN: In this case towards the northeast. 21 MR. NOMELLINI: Okay. So sometimes it does. Why 22 would it not do that all the time, if you know? 23 MR. MCGAHAN: As I mentioned, it depends on the 24 hydro-geologic conditions. So if there's a wet period of 25 time that it fills up, the aquifer in the location south CAPITOL REPORTERS (916) 923-5447 5171 1 and west of our drainage area, then it will cause water to 2 run to the northeast. As that reservoir, if you will, is 3 depleted, then it doesn't do that. 4 MR. NOMELLINI: Okay. What depletes the reservoir? 5 MR. MCGAHAN: Just the simple hydrologic forces, 6 hydro-geological forces. 7 MR. NOMELLINI: Trees, vegetation? 8 MR. MCGAHAN: No. It's -- water flows because 9 there's pressure to make it flow. We call it a gradient, 10 hydraulic gradient. And if there is a positive hydraulic 11 gradient, then the water will flow. 12 MR. NOMELLINI: Okay. I get what you're trying to 13 tell me. Water goes from uphill to downhill. I still 14 don't understand that. But in terms of terms of the flow 15 that comes from the area west of the divide, does that flow 16 move underground at certain times? 17 MR. MCGAHAN: Yes. 18 MR. NOMELLINI: All right. When it moves 19 underground, does it carry with it any selenium? 20 MR. MCGAHAN: It could, certainly. 21 MR. NOMELLINI: Do you know whether or not it does? 22 MR. MCGAHAN: I don't have any data on that. 23 MR. NOMELLINI: All right. Do you know whether or 24 not it carries any salinity? 25 MR. MCGAHAN: It could. CAPITOL REPORTERS (916) 923-5447 5172 1 MR. NOMELLINI: But you do not know for a fact that 2 it does? 3 MR. MCGAHAN: No. 4 MR. NOMELLINI: All right. And could water move from 5 west of the divide to east through the surface channels as 6 well? 7 MR. MCGAHAN: Generally not. 8 MR. NOMELLINI: Panoche Creek, is there a flow, both 9 Big and Little, the two of them? 10 MR. MCGAHAN: We're talking two different hydrologic 11 conditions now. One is subsurface and one is surface. 12 Yes, on the surface, certainly, there is flows from many 13 streams. On the west of our drainage area, the two 14 principal ones would be Panoche and Silver Creek to 15 basically to southerly of our drainage area. Another one 16 would be Little Panoche Creek from the west side of our 17 drainage area on the surface. 18 MR. NOMELLINI: All right. And when those two 19 streams flow, surface flow into your area, do they carry 20 with them selenium? 21 MR. MCGAHAN: Yes, they do. So we're differentiating 22 now, I do have information on the surface qualities. 23 MR. NOMELLINI: Okay. 24 MR. MCGAHAN: Panoche/Silver Creek tends to carry 25 high selenium. In fact, they carry a high sediment load. CAPITOL REPORTERS (916) 923-5447 5173 1 And, in fact, that's the source of erosion from the coastal 2 streams just as occurs as when you have high flows as would 3 deposit selenium in the drainage area. 4 And as we know from Panoche/Silver Creek, we know 5 there is high selenium in those waters. And there is high 6 salinity in those waters. So, yes, it does bring 7 significant quantities of selenium and salt out into the 8 area. 9 MR. NOMELLINI: All right. Now, what about Little 10 Panoche Creek? 11 MR. MCGAHAN: Little Panoche Creek, the recent water 12 quality testing that I have shows it is very low in 13 selenium. Although, over a geologic time it may have been 14 high at one time. Certainly, the soils map shows that the 15 alluvium from Little Panoche Creek also has high selenium, 16 but my recent tests showed that it didn't. 17 MR. NOMELLINI: All right. Does the application of 18 irrigation water to areas on the west side of the divide 19 contribute to the salt loading that flows through Little 20 Panoche Creek from west to east? 21 MR. MCGAHAN: Irrigation, in my opinion, has no 22 impact on the flows in Little Panoche Creek. 23 MR. NOMELLINI: My question was with regard to the 24 salt loading. 25 MR. MCGAHAN: Nor doesn't have any impact on the salt CAPITOL REPORTERS (916) 923-5447 5174 1 loading in Little Panoche Creek. 2 MR. NOMELLINI: So that rainwater, in your judgment, 3 would not pick up salinity in the soils on the west side of 4 the divide, carry those into Little Panoche Creek during 5 high flow periods and cause that salt load to move from 6 west to east? 7 MR. MCGAHAN: I don't believe so, no. 8 MR. NOMELLINI: All right. With regard to Panoche 9 Creek, is your testimony the same? 10 MR. MCGAHAN: Generally, I don't believe that the 11 surface flows tend to pick up a lot of salt as they run 12 across the surface. Certainly, they could pick up some 13 salt and/or selenium. Generally, they don't pick up a lot 14 as they run across the surface. 15 MR. NOMELLINI: Okay. If they pick up sediment -- 16 C.O. CAFFREY: I didn't say anything. 17 MR. NOMELLINI: If they pick up sediment, you did 18 testify, did you not, with regard to Panoche Creek that the 19 high flows pick up sediments from the west areas and carry 20 them in the channel from west to east? 21 MR. MCGAHAN: They bring sediment out of the 22 foothills. So, generally, they don't pick up sediment as 23 they travel -- for example, easterly of Interstate 5 out of 24 the drainage area, generally, they will deposit sediment 25 that they picked up in the coastal foothills. CAPITOL REPORTERS (916) 923-5447 5175 1 MR. NOMELLINI: All right. I know this is 2 uncomfortable, but west of the divide, do these flows pick 3 up any sediment from the agricultural lands? 4 MR. MCGAHAN: Generally speaking, no. It could be 5 minor amounts, general erosion at some point, but generally 6 no. 7 MR. NOMELLINI: And the flows that go over the lands 8 from these high rainfall periods don't flush salts from 9 those agricultural lands into the surface flow of Panoche 10 Creek that would move from west to east; is that your 11 testimony? 12 MR. MCGAHAN: That's a very complicated question. 13 MR. NOMELLINI: All I want is a "yes" or "no" -- no, 14 you can explain. 15 MR. SEXTON: Don't beg. 16 MR. MCGAHAN: The surface flows, in my opinion, don't 17 pick up and leach salt as it goes across the surface. 18 MR. NOMELLINI: They may mobilize the movement? 19 MR. MCGAHAN: They may cause -- they may cause 20 pressure on the perched groundwater table and leach salts 21 that way. 22 MR. NOMELLINI: Well -- 23 MR. MCGAHAN: We have two different sets. We have a 24 groundwater hydrologic condition and a surface hydrologic 25 condition, and oftentimes they're totally separate. CAPITOL REPORTERS (916) 923-5447 5176 1 MR. NOMELLINI: Okay. 2 MR. MCGAHAN: So we need to talk about one or the 3 other. 4 MR. NOMELLINI: All right. Well, I thought we 5 covered the one in the groundwater and you said you didn't 6 know whether the groundwater movement from west to east of 7 the divide on Panoche Creek moved with it salinity or 8 selenium? 9 MR. MCGAHAN: I said I didn't have data on it. 10 MR. NOMELLINI: Okay. Do you know? 11 MR. MCGAHAN: No. 12 MR. NOMELLINI: Okay. With regard to surface flows, 13 you indicated that you had data? 14 MR. MCGAHAN: Yes. 15 MR. NOMELLINI: All right. Now, what I want to know 16 with regard to surface -- I'm going to go quite a bit 17 longer. You want me to continue? I hate to be the one 18 keeping everybody here. 19 C.O. CAFFREY: How much more time do you think you'll 20 need? 21 MR. NOMELLINI: I think I've got at least another 22 half hour, maybe 45 minutes. 23 C.O. CAFFREY: Okay. And that's fine. That's, 24 certainly, your prerogative. 25 MR. NOMELLINI: I'm not going to use the six hours CAPITOL REPORTERS (916) 923-5447 5177 1 that Birmingham was going to use. I haven't even asked him 2 about his childhood and what courses he's had. 3 MR. BIRMINGHAM: I would encourage you to do that, 4 Mr. Nomellini. 5 MR. NOMELLINI: No. No. No. 6 C.O. CAFFREY: If you don't, Mr. Birmingham may. 7 MR. NOMELLINI: I'm just too polite to do it. 8 C.O. CAFFREY: Let me ask a question here, we will 9 recess now, but is Mr. Brandt here -- yes, there he is. 10 Mr. Brandt, just so I understand when we come back 11 tomorrow morning, we'll finish with this panel and Ms. 12 Zolezzi will be here is my understanding. 13 MS. WHITNEY: No. 14 C.O. CAFFREY: Oh, she's not. 15 MS. WHITNEY: She'll be here on the 28th. 16 MS. LEIDIGH: She'll be here to cross-examine. 17 MS. WHITNEY: Oh, for cross-examination. 18 C.O. CAFFREY: So there's no -- we'll still go to 19 you. We won't finish with her witnesses. 20 MR. BRANDT: Right. We'll finish this one soon. 21 C.O. CAFFREY: All right. Great. 22 MR. BRANDT: May I also rise for just another -- 23 C.O. CAFFREY: Please. 24 MR. BRANDT: Just so it's on the record and everyone 25 who's here knows, we submitted on behalf of the Department CAPITOL REPORTERS (916) 923-5447 5178 1 of the Interior, Department of Fish and Game and Department 2 of Water Resources a request, a letter request to open, or 3 reopen the opportunity to submit new evidence on Phase VI. 4 And we just submitted that a short time ago 5 upstairs. So you'll be getting it shortly. I do have some 6 extra copies for anybody who's here. We're also serving it 7 on all the parties today so you should have it in your mail 8 tomorrow. But I just wanted to put that on the record so 9 everybody knows up front that we're asking for that based 10 on some new information. 11 C.O. CAFFREY: All right. Thank you, sir. We'll, 12 obviously, be taking a look at it, grueling at it at a 13 later date. Anything else for this afternoon? Then, we'll 14 begin, again, tomorrow morning at 9:00 a.m. Thank you. 15 (The proceedings concluded at 4:02 p.m.) 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 5179 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 4982 through 5179 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 18th day of 14 August, 1997. 15 16 ________________________________ MARY R. GALLAGHER, CSR #10749 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 5180