STATE WATER RESOURCES CONTROL BOARD PUBLIC HEARING 1998 BAY-DELTA WATER RIGHTS HEARING HELD AT 901 P STREET SACRAMENTO, CALIFORNIA TUESDAY, OCTOBER 27, 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 5439 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 5440 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 5441 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 5442 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 5443 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 5444 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 5445 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 5446 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 5447 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 5448 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 5449 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 5450 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 5451 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 5452 1 I N D E X 2 ---oOo--- 3 4 PAGE 5 OPENING OF HEARING 5454 6 AFTERNOON SESSION 5569 7 END OF PROCEEDINGS 5682 8 DIRECT TESTIMONY OF THE DEPARTMENT OF THE INTERIOR: 9 DEPARTMENT OF INTERIOR 5454 10 PANEL: 11 MATTHEW VANDENBERG 12 13 CROSS-EXAMINATION OF DEPARTMENT OF INTERIOR: 14 MICHAEL JACKSON 5466 DAVID SANDINO 5475 15 JOHN HERRICK 5512 16 17 ---oOo--- 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 5453 1 TUESDAY, OCTOBER 27, 1998, 9:00 A.M. 2 SACRAMENTO, CALIFORNIA 3 ---oOo--- 4 C.O. CAFFREY: Good morning and welcome back to the 5 Bay-Delta Water Rights Hearings. Let me just ask, 6 Mr. Brandt, were you going to go, or was there some other 7 arrangement made among some of the parties? 8 MR. BRANDT: I think I'm going to go, but I have one 9 witness that cannot be here today and that's my 10 hydrologist. So I was hoping he could go on Thursday. 11 I mean they're separate witnesses. I was not going to put 12 them on -- 13 C.O. CAFFREY: Separate panels in effect? 14 MR. BRANDT: Separate panels, yeah. 15 C.O. CAFFREY: We can, certainly, do that. We've 16 accommodated other parties. And we're in the middle of one 17 of those accommodations right now with Ms. Zolezzi. So why 18 don't you do what you can today and see where it takes us. 19 Good morning and welcome, Mr. Brandt. 20 ---oOo--- 21 DIRECT TESTIMONY OF THE DEPARTMENT OF THE INTERIOR 22 BY ALF BRANDT 23 MR. BRANDT: Good morning. Alf Brandt on behalf of 24 the United States Department of the Interior. I stand 25 because the Department of Interior stands ready to assist CAPITOL REPORTERS (916) 923-5447 5454 1 the State Board in any way that it can to protect water 2 quality in the Southern Delta. We committed -- we remain 3 committed to promoting water quality for all beneficial 4 uses in the South Delta. Our agencies will do everything 5 that's reasonably possible within their control to help you 6 to promote the water quality in that area. 7 Our assistance today starts with some information. 8 We consider crucial to your decision that you have every 9 piece of information that you need to make the decisions 10 that face you in the months ahead. We'll -- we will have 11 on Thursday, for instance, a hydrologist who will be 12 presenting -- from the geological survey, who will be 13 presenting information and not really a case, or advocating 14 a position, or a direction that you should be going, but 15 presenting some new information, some recent studies that 16 he's done in the Southern Delta relating the tides and the 17 barriers and the hydrological effects. And he'll just be 18 presenting some information for your decision in whatever 19 way you wanted to use that. 20 Then, in addition, we're providing, today, Matt 21 Vandenberg from the Fish and Wildlife Service who will be 22 presenting some biological information on the barriers. 23 And just some background, in particular, on biological 24 barriers, both temporary barriers that have been developed 25 by the Bureau of Reclamation and DWR, as well as the ISDP CAPITOL REPORTERS (916) 923-5447 5455 1 barriers that have been developed by both Reclamation and 2 DWR. 3 You've already heard testimony at this point from 4 the South Delta Water Agencies that we were, I think the 5 words were, "the root cause of all evil," or all water 6 quality problems in the Southern Delta. And I'm sure you, 7 also, know that we are one of the root remedies for some of 8 the issues that remain in the Southern Delta by providing 9 some of the water that we do from New Melones for dilution. 10 And you've already heard a number of different positions on 11 how much that should be happening. And I'm sure you'll 12 hear more tomorrow and in the days ahead. 13 In the San Joaquin River Agreement we continue to 14 take responsibility for the Vernalis Water Quality 15 Standards. And we've spent -- Reclamation has spent 16 probably 15 years -- or more than 15 years trying to 17 resolve some of the issues that South Delta has raised over 18 those years. And we continue to try to do what we can to 19 try and find answers to that. 20 We have tried temporary barrier programs and other 21 efforts. Indeed, Reclamation has played an active role 22 working closely with the Central Valley Regional Water 23 Quality Control Board in trying to reduce the drainage from 24 the west side of the San Joaquin Valley through the 25 drainage program, land retirement program and the CAPITOL REPORTERS (916) 923-5447 5456 1 grasslands bypass. 2 While we continue to pursue a long-term solution, 3 we have not been able to reach an agreement with South 4 Delta at this point on specific long-term solutions. We 5 will continue to play a role in improving Southern Delta 6 water quality, but Reclamation cannot provide the sole 7 answer, the only answer for improving water quality in the 8 South Delta. 9 State Board, therefore, has properly included 10 other alternatives in its trying to resolve the Southern 11 Delta water quality issues. We agree that the Board needs 12 to help and focus its efforts on helping the Regional Board 13 continue with its program in trying to deal with drainage 14 and source control issues, source control is a crucial 15 thing that needs to be continued to be pursued. 16 State Board's own exhibits have talked about the 17 history of source control. And I'm not going to go into 18 them here. And I think you probably well know some of the 19 things that have been going on in recent years. Interior 20 continues to support the State Board doing anything it can 21 to work with the Regional Board in dealing with those 22 issues. Of course, the negative affects of the Stockton 23 water treatment plant on dissolved oxygen levels also needs 24 to be minimized one way or another to the best extent 25 possible. CAPITOL REPORTERS (916) 923-5447 5457 1 Then, we come to the issue of Southern Delta 2 barriers. As Interior's witnesses testified in Phase II, 3 we support the installation of the head of Old River 4 barrier. It is valuable at -- particularly during the 5 pulse-flow period. It's valuable for salmon. And we'll 6 hear some -- perhaps, may hear some more discussion today. 7 But as provided in the San Joaquin River Agreement we think 8 it makes sense. 9 As for the other barriers considered by the State 10 Board, both the Temporary Barriers Program and the ISDP, 11 Reclamation has been a key part in developing those 12 programs working with DWR in trying to develop answers in 13 the barriers programs. But we do have some concerns, some 14 biological concerns, that particularly, as a stand-alone 15 project relating -- that those biological concerns relate 16 to endangered species. And we recognize that the Board has 17 to consider those issues and consider the barriers and 18 whether to support a barrier program as implementation for 19 Southern Delta, we recognize that. 20 And as you may know, CalFed participants, CalFed 21 agencies are talking about the barriers during this period 22 as one of the answers, one of the possible ways to 23 resolving that. That will be done -- many of the issues 24 may be resolved in the CalFed process. 25 This is an issue that is -- there's no easy answer CAPITOL REPORTERS (916) 923-5447 5458 1 here on barriers. There's not "it's wrong" or "it's 2 right." It is really -- there are a number of biological 3 facts that we are going to present to you today. And 4 you'll hear some nuances, some difficulties, but you'll 5 also hear some good and some bad, either in ours or in 6 other presentations. It's not an easy answer. You can't 7 absolutely say one way or the other, "you can't" or "you 8 can." It's a question of: These are some issues, these 9 are some facts that you need in consideration -- as you 10 consider a barriers program as part of the implementation. 11 If we can resolve those biological concerns, then, 12 really, Reclamation does hope to go forward with some sort 13 of barriers program in the Southern Delta. But really the 14 question is: How do you operate the barriers? And how do 15 you do that? It's those things that can make a difference, 16 the operation of the barriers. It's not "yes" or "no" on 17 the barriers or not. 18 So to bring it all back together, where do we 19 stand on this? This is the policy position, policy side of 20 it. And in short, Interior hopes the Board and encourages 21 the Board to proceed on its current course. To a large 22 extent, Reclamation will use to a reasonable extent New 23 Melones for Vernalis water quality, land retirement, water 24 conservation. And just as important, we count on you and 25 the Regional Board working together to continue to pursue CAPITOL REPORTERS (916) 923-5447 5459 1 greater source control. With that I'd like to get started 2 with our first informational witness to give you some 3 background on biological issues on barriers. I'd like to 4 call Matt Vandenberg. 5 C.O. CAFFREY: Has your witness taken the oath? 6 MR. BRANDT: No, he has not. 7 C.O. CAFFREY: Please, remain standing, sir. Raise 8 your right hand. Do you promise to tell the truth in these 9 proceedings? 10 MR. VANDENBERG: Yes, I do. 11 C.O. CAFFREY: Thank you very much. Please, be 12 seated. 13 MR. BRANDT: Mr. Vandenberg, would you state your 14 name for the record and, please, spell your last name. 15 MR. VANDENBERG: Matthew David Vandenberg, 16 V-A-N-D-E-N-B-E-R-G 17 MR. BRANDT: Thank you. Mr. Vandenberg, I'm going to 18 hand you Department of Interior Exhibit Number 16. I'd 19 like to draw your attention, particularly, to Exhibit 16-A. 20 Is that -- is Exhibit 16-A an accurate statement of your 21 qualifications? 22 MR. VANDENBERG: Yes, it is. 23 MR. BRANDT: Okay. And, now, drawing your attention 24 to the remainder, all the parts of 16, well, 16-A, B and 25 all the main part of the testimony, is Exhibit 16-A an CAPITOL REPORTERS (916) 923-5447 5460 1 accurate reflection of your testimony here today? 2 MR. VANDENBERG: Yes, it is. 3 MR. BRANDT: Could you, please, provide a summary of 4 that testimony. 5 MR. VANDENBERG: Certainly. 6 C.O. CAFFREY: And before you do that, 7 Mr. Vandenberg, excuse me for interrupting you, are you 8 aware of the rule for direct testimony? There is a 9 20-minute limitation, without exception, because it is a 10 summary of what you have already submitted and nothing more 11 than a summary. 12 MR. VANDENBERG: Right. I don't think it will take 13 that long. 14 C.O. CAFFREY: Thank you, sir. 15 MR. VANDENBERG: Mr. Chairman, Members of the Board, 16 good morning. Thank you for hearing me today. It is my 17 understanding that the State Board is considering 18 implementation of a barrier program similar to the 19 Temporary Barriers Program, or the Interim South Delta 20 Program, ISDP, to aid in achieving specified water quality 21 criteria in the South Delta as contained in 1995 Water 22 Quality Control Plan. 23 The Temporary Barriers Program includes the annual 24 construction, operation and removal of rock barriers to 25 improve water levels, circulation and water quality in the CAPITOL REPORTERS (916) 923-5447 5461 1 Southern Delta for local agricultural diversions and to 2 improve operational flexibility at the State Water Project. 3 Additionally, the program is used to help determine the 4 effects of installing permanent barriers in the same 5 locations as identified in the ISDP. 6 The ISDP is a proposed action aimed at 7 constructing permanent barriers to improve water levels and 8 circulation in the South Delta for local agricultural 9 diversions; and to improve South Delta hydraulic conditions 10 to increase diversions in the Clifton Court Forebay to 11 maximize the frequency of full-pumping capacity at the 12 State Water Projects, Banks Pumping Plant. 13 The ISDP contains five components. They are: 14 One, construction and operation of a new intake at Clifton 15 Court Forebay; two, channel dredging along approximately a 16 five-mile reach of Old River; three, the construction and 17 operation of a permanent barrier at the head of Old River 18 to improve salmon migration down the San Joaquin River; 19 four, construction and operation of three permanent-flow 20 control structures in Middle River, Old River near Tracy 21 and Grant Line Canal; and, five, to increase diversions in 22 Clifton Court Forebay to maximize State Water Project 23 pumping. 24 I analyzed the effects of the Temporary Barrier 25 Program and ISDP and concluded that these actions would CAPITOL REPORTERS (916) 923-5447 5462 1 adversely affect Delta smelt and Sacramento splittail by: 2 Changing delta hydrology and altering flows; 3 increasing velocities in Delta channels; modifying Delta 4 smelt migration and transport; affecting Delta smelt 5 distribution and spawning; entrapping Delta smelt behind 6 the barriers; degrading Central Delta water by the increase 7 in the selenium in the San Joaquin River; reducing effects 8 of the positive pulse flows down the San Joaquin River; 9 affecting critical habitat both directly and indirectly; 10 scouring channels and vegetation; increase in entrainment 11 at agricultural diversions; increasing entrainment at the 12 Central Valley Project and the State Water Project; and 13 moving X2 upstream incrementally. 14 Additionally, ISDP would require dredging 15 approximately five miles of Old River, dredging for the 16 construction of the intake at Clifton Court Forebay and the 17 permanent barriers; resuspending contaminants while 18 dredging; constructing additional levees for the permanent 19 barriers; placing approximately five miles of rock riprap 20 in Old River; placing rock riprap on the newly constructed 21 levees; increasing predation at Clifton Court Forebay; and 22 precluding recovery tasks for Delta smelt. 23 These conclusions were made by analyzing the 24 effects of the proposed actions in conjunction with the 25 life history of Delta smelt and Sacramento splittail and CAPITOL REPORTERS (916) 923-5447 5463 1 physical and biological features which were the basis for 2 determining critical habitat for Delta smelt. 3 I concluded that implementation of the Temporary 4 Barriers Program affected Delta smelt and Sacramento 5 splittail to such an extent as to significantly disrupt 6 feeding, breeding and sheltering, as well as result in 7 significant habitat modifications that would result in 8 death or injury to these species and further impair 9 behavioral patterns including feeding, breeding and 10 shelter. 11 My conclusion did not find jeopardy for the 12 Temporary Barriers Program, because the project impacts are 13 temporary in nature. That is they will last only to the 14 year 2000. I concluded that ISDP would reasonably be 15 expected, directly in indirectly, to reduce appreciately 16 the likelihood of both survival and recovery of Delta smelt 17 and Sacramento splittail by reducing the reproduction, 18 distribution and abundance as well as directly and 19 indirectly altering the constituent elements: Water, river 20 flow, physical habitat and salinity, thereby appreciately 21 reducing the value of critical habitat for both the 22 survival and recovery of Delta smelt. 23 Additionally, I concluded that ISDP would preclude 24 implementation of approved recovery plan tasks aimed at 25 recovering Delta smelt. I reviewed three water quality CAPITOL REPORTERS (916) 923-5447 5464 1 monitoring reports submitted by the Department of Water 2 Resources for the Temporary Barriers Program. 3 These reports stated that the range of water 4 quality variables measured specific conductance, water 5 temperature, dissolved oxygen, chlorophyll, turbidity and 6 nutrients were within the range of variables measured since 7 1971, indicating that installation and operation of the 8 barriers had no significant affect on water quality. 9 Thank you. 10 C.O. CAFFREY: Thank you, Mr. Vandenberg. 11 Mr. Brandt, let me ask: Are you going to have a 12 number of witnesses -- how many witnesses do you plan to 13 bring on today? 14 MR. BRANDT: Today, this is the only one. 15 C.O. CAFFREY: This is the only one? 16 MR. BRANDT: Yes. 17 C.O. CAFFREY: Okay. Does that complete the direct? 18 MR. BRANDT: Yes. 19 C.O. CAFFREY: All right. By a showing of hands can 20 we see who wishes to cross-examine this witness? All 21 right. We have Mr. Nomellini and Mr. Herrick, Mr. Sandino, 22 Mr. O'Laughlin, Mr. Jackson. Is that it? 23 C.O. STUBCHAER: I think so. 24 C.O. CAFFREY: Did we get everybody? We have: 25 Nomellini, Herrick, Sandino, O'Laughlin and Jackson. Did CAPITOL REPORTERS (916) 923-5447 5465 1 we leave anybody out? All right. We will go in reverse 2 order and start with Mr. Jackson. 3 Good morning, Mr. Jackson. 4 ---oOo--- 5 CROSS-EXAMINATION OF THE DEPARTMENT OF THE INTERIOR 6 BY REGIONAL COUNCIL OF RURAL COUNTIES 7 BY MICHAEL JACKSON 8 MR. JACKSON: Yes, sir. Mr. Vandenberg, for whom do 9 you work, sir? 10 MR. VANDENBERG: For the U.S. Fish and Wildlife 11 Service. 12 MR. JACKSON: And how long have you been working for 13 the U.S. Fish and Wildlife Service on Delta issues? 14 MR. VANDENBERG: For approximately six years. 15 MR. JACKSON: It's my understanding that you were 16 assigned the task to review the ISDP; is that correct? 17 MR. VANDENBERG: Yes, I was. 18 MR. JACKSON: And you made a finding that there is no 19 significant water quality affect from carrying out the 20 Permanent Barriers Program? 21 MR. VANDENBERG: I'm sorry, can you repeat that? 22 MR. JACKSON: You made a finding that there was no 23 significant water quality affect from implementing the 24 barriers program? 25 MR. VANDENBERG: I concluded from monitoring reports CAPITOL REPORTERS (916) 923-5447 5466 1 submitted by the Department of Water Resources that the 2 implementation of the temporary barriers provided no water 3 quality benefits. 4 MR. JACKSON: No benefits? 5 MR. VANDENBERG: Right. 6 MR. JACKSON: Was there any detriment? 7 MR. VANDENBERG: What I concluded from the reports 8 stated that the water quality conditions that were measured 9 when the barriers were installed were not any different 10 than those measured in 1971. 11 MR. JACKSON: Okay. So you can point to no 12 deterioration of water quality caused by the ISDP; is that 13 correct? 14 MR. VANDENBERG: I would point to no change -- 15 MR. JACKSON: All right. 16 MR. VANDENBERG: -- in the Delta. 17 MR. JACKSON: Now, on the other hand, you did find 18 affects on fish, did you not? 19 MR. VANDENBERG: I found affects on Delta smelt and 20 Sacramento splittail. 21 MR. JACKSON: All right. Is it fair to say, then, 22 that in terms of the salmonid species you found no affects 23 caused either by the temporary program, or what you would 24 expect to have happened with the permanent program? 25 MR. VANDENBERG: My expertise is not with salmon. So CAPITOL REPORTERS (916) 923-5447 5467 1 I did not deal with salmon. I dealt with smelt and 2 splittail. 3 MR. JACKSON: So your testimony, essentially, just 4 does not have anything to do with salmon one way or the 5 other? 6 MR. VANDENBERG: That's correct. 7 MR. JACKSON: Okay. Now, in regard first to Delta 8 smelt, you indicated that a Permanent Barriers Program, in 9 your mind, would reduce critical habitat for the smelt; is 10 that correct? 11 MR. VANDENBERG: Incrementally, it would. 12 C.O. CAFFREY: Mr. Vandenberg, excuse me. I'm sorry. 13 Could you pull that mic a little closer. 14 MR. VANDENBERG: I'm sorry. Is it on? 15 C.O. CAFFREY: Thank you. 16 MR. JACKSON: You've anticipated my next question: 17 What is the increment that it would affect the critical 18 habitat of the Delta smelt? 19 MR. VANDENBERG: The permanent barriers affect 20 critical habitat is approximately three acres. 21 MR. JACKSON: And outside that three-acre area there 22 would be -- you would expect that the critical habitat 23 would not be affected or reduced? 24 MR. BRANDT: Objection. Vague. Do you mean just -- 25 as to just the barriers or the entire ISDP? CAPITOL REPORTERS (916) 923-5447 5468 1 C.O. CAFFREY: Could you clarify, please, 2 Mr. Jackson? 3 MR. JACKSON: Sure. First let's look at the entire 4 ISDP. Is that what you mean there would be a three-acre 5 affect? 6 MR. VANDENBERG: There would be an affect -- a direct 7 affect to three acres of critical habitat. There's also 8 indirect affects. 9 MR. JACKSON: All right. Let's talk about the direct 10 affects first, where would that three acres be located? 11 MR. VANDENBERG: It would be located in Old River at 12 Tracy, Old River at the head, and Middle River near 13 Victoria Canal and in Grant Line Canal. 14 MR. JACKSON: And those affects would simply be from 15 the construction activities? 16 MR. VANDENBERG: They would be -- the three-acres of 17 impact is from the footprints of the barriers. 18 MR. JACKSON: All right. Now, how much Delta habitat 19 is there in total in the Delta to compare to this three 20 acres? 21 MR. BRANDT: Vague as to "Delta habitat," for which 22 species? 23 MR. JACKSON: Delta smelt. You can assume all my 24 questions will be about Delta smelt until I ask about 25 Sacramento splittail. CAPITOL REPORTERS (916) 923-5447 5469 1 MR. VANDENBERG: There's, I would say, approximately 2 700 miles of waterways in the Delta. 3 MR. JACKSON: Is there anything about this three 4 acres that is different than the rest of the 700 miles? 5 MR. VANDENBERG: It's in a different location. 6 MR. JACKSON: But is it somehow critical -- the 7 critical part of the critical habitat? 8 MR. VANDENBERG: It's designated as critical habitat. 9 And in that designation we determine the biological and 10 physical features that are required for the species' 11 recovery. And this, certainly, contributes to that. 12 MR. JACKSON: All right. Does it contribute more or 13 less than any other three acres within the critical 14 habitat? 15 MR. VANDENBERG: I'd say it would contribute -- I say 16 it would contribute the same. 17 MR. JACKSON: All right. Now, you indicated that you 18 believe that the ISDP would increase entrainment at both 19 the ag barriers and the State and Federal pumps; is that 20 correct? 21 MR. VANDENBERG: Yes. 22 MR. JACKSON: All right. Let's deal with the ag 23 barriers first. What science do you have that indicates 24 that the ag barriers would increase entrainment at the ag 25 pumps? CAPITOL REPORTERS (916) 923-5447 5470 1 MR. VANDENBERG: Well, we know that diversions 2 entrain the fish. We -- because those diversions are 3 within the critical habitat of Delta smelt and Delta smelt 4 would be in that area, we know that it would entrain smelt. 5 MR. JACKSON: Now, are these additional ag 6 diversions, or are they consolidated ag diversions under 7 the ISDP? 8 MR. VANDENBERG: Under the ISDP I don't believe there 9 was any mention of consolidating diversions. 10 MR. JACKSON: Would the ISDP cause increased affects 11 by diversion, or simply shift the place where the affects 12 happen from one place to another? 13 MR. VANDENBERG: I think they would -- the operation 14 of ISDP would cause an increase in diversion -- or increase 15 in entrainment at agricultural diversions. 16 MR. JACKSON: Over what is presently the case? 17 MR. VANDENBERG: Over what is presently the case. 18 MR. JACKSON: Now, calling your attention to the 19 State and Federal pumps, you indicated that the ISDP would 20 cause increased entrainment at the State pumps. Why is 21 that, sir? 22 MR. VANDENBERG: Because under the ISDP the 23 proposed -- as the ISDP is proposed, it calls for channel 24 dredging of Old River to facilitate flows to the South 25 Delta pumps. And, then, they also propose to increase the CAPITOL REPORTERS (916) 923-5447 5471 1 amount of water that they're diverting. And with the 2 increased amount of water so goes the fish. 3 MR. JACKSON: Is it fair to say that for Delta smelt 4 in the area of Clifton Court Forebay that any increased 5 export will cause increased entrainment? 6 MR. VANDENBERG: I would say that follows. 7 MR. JACKSON: Is there anything about the ISDP, 8 except for the physical change at Clifton Court and the 9 increased diversion effectuated by the ISDP, that causes 10 increased entrainment? 11 MR. VANDENBERG: At the pumps? 12 MR. JACKSON: Yes. 13 MR. VANDENBERG: The -- by the configurations of the 14 barriers and how they alter flow, that would lead to the 15 increased entrainment. 16 MR. JACKSON: All right. So there would be -- 17 essentially, it's fair to say that at the State pumps there 18 would be three affects. One would be, essentially, the 19 dredging would cause increased entrainment, correct? 20 MR. VANDENBERG: No. Dredging doesn't cause 21 entrainment. 22 MR. JACKSON: All right. The change in the amount of 23 water which is taken out by the State pumps would cause 24 increased entrainment? 25 MR. VANDENBERG: Increased diversions would cause CAPITOL REPORTERS (916) 923-5447 5472 1 increased entrainment. 2 MR. JACKSON: Now, calling your attention to the 3 Federal pumps, you indicate that there would be increased 4 entrainment at the CVP pumps caused by the ISDP? 5 MR. VANDENBERG: Yes, I believe there would be 6 increased entrainment at the Federal pumps as well. 7 MR. JACKSON: And why do you believe that, sir? 8 MR. VANDENBERG: Because the -- when the barriers are 9 put in they alter the hydrology. And in that altered 10 hydrology when you kick the pumps on it does, essentially, 11 two things. One, the head of Old River barrier, for 12 example, causes more water to go down the San Joaquin River 13 rather than down Old River and toward the pumps. 14 MR. JACKSON: Well, doesn't that decrease the amount 15 of San Joaquin smolts that go to the pumps? 16 MR. VANDENBERG: I'm not an expert in salmon. 17 MR. JACKSON: Okay. Excuse me, back to the -- so, 18 essentially, for Delta smelt the building of the head of 19 Old River barrier does nothing to decrease entrainment? 20 MR. VANDENBERG: I'd say that it would depend -- 21 well, it would depend on the distribution of the species as 22 well. There's more than just looking at just the barrier, 23 or just the pumping that leads to problems with the Delta 24 smelt. There are a lot of issues out there, that in 25 combination, as I looked at it under ISDP, lead to CAPITOL REPORTERS (916) 923-5447 5473 1 jeopardizing the species. 2 MR. JACKSON: So it is your finding that the smelt 3 would be jeopardized by the ISDP permanent facilities? 4 MR. VANDENBERG: As it was currently proposed by DWR. 5 MR. JACKSON: Now, calling your attention to the flow 6 control structures, you indicated that that was something 7 that you thought would affect the Delta smelt. Why is 8 that, sir? 9 MR. VANDENBERG: The flow control structures are 10 equipped with flap gates that allow water to pass only in 11 the upstream direction. When the tide floods, the flaps 12 open and the water goes through; when the tide ebbs they 13 close and that water is impounded behind the barrier. 14 With that water are fish, are Delta smelt. 15 Because they can't get through that barrier, they 16 have one of two options. Either they get entrained through 17 the agricultural diversions, or they make an attempt to 18 swim up Old River and around and down the San Joaquin where 19 then they're subjected to increased velocities through 20 Turner and Columbia Cut and maybe get sucked back into the 21 South Delta and have to repeat the process. Or if they're 22 lucky, they might head towards the bay where preferred 23 spawning, or rearing habitat would be. 24 MR. JACKSON: Thank you. No further questions. 25 C.O. CAFFREY: Thank you, Mr. Jackson. CAPITOL REPORTERS (916) 923-5447 5474 1 Mr. O'Laughlin. Good morning, sir. 2 MR. O'LAUGHLIN: Good morning, Chairman Caffrey. I 3 was wondering if I might have five minutes of time to 4 confer with my clients prior to asking questions of this 5 witness, given the relationship between the San Joaquin 6 River Authority and the Department of Interior? 7 C.O. CAFFREY: What I'll do is -- how about if we 8 just go on to the next cross-examiner? 9 MR. O'LAUGHLIN: Okay. And I'll take my clients 10 outside and have a brief discussion. 11 C.O. CAFFREY: Go ahead, Mr. O'Laughlin. 12 MR. O'LAUGHLIN: Thank you very much. 13 C.O. CAFFREY: Mr. Sandino. Good morning, sir. 14 MR. SANDINO: Good morning, Mr. Chairman, Members. 15 C.O. CAFFREY: Good morning, Mr. Sandino. 16 ---oOo--- 17 CROSS-EXAMINATION OF THE DEPARTMENT OF THE INTERIOR 18 BY CALIFORNIA DEPARTMENT OF WATER RESOURCES 19 BY DAVID A. SANDINO 20 MR. SANDINO: Mr. Vandenberg, I have some questions 21 for you about some of your conclusions in your testimony. 22 As I understand your testimony you've reviewed the 23 biological impacts of the ISDP program as it affects Delta 24 smelt and splittail; is that correct? 25 MR. VANDENBERG: That's correct. CAPITOL REPORTERS (916) 923-5447 5475 1 MR. SANDINO: And in your testimony you offer some 2 opinions about these impacts; is that correct? 3 MR. VANDENBERG: That's the nature of a biological 4 opinion. 5 MR. SANDINO: What information did you review to make 6 your opinion? 7 MR. VANDENBERG: I reviewed biological assessments 8 provided by the Department of Water Resources for their 9 proposed action. 10 MR. SANDINO: Okay. What is the listing status of 11 the Delta smelt currently under Federal law? 12 MR. VANDENBERG: It's currently listed as threatened. 13 MR. SANDINO: Are you familiar with the term 14 "recovery plan"? 15 MR. VANDENBERG: Yes, I am. 16 MR. SANDINO: In general, what is the purpose of a 17 recovery plan? 18 MR. VANDENBERG: The purpose of a recovery plan is to 19 reduce the decline of the species, to provide survival and 20 recovery of the species. 21 MR. SANDINO: And are recovery plans, in general, 22 prepared only for species that are listed either as 23 threatened or endangered? 24 MR. VANDENBERG: In the case of -- I don't want to 25 call it the Delta smelt recovery plan, because it's really CAPITOL REPORTERS (916) 923-5447 5476 1 not a Delta smelt, excuse me, recovery plan. It's a Delta 2 Native Fishes Recovery Plan. And it includes more than 3 just the threatened Delta smelt. 4 MR. SANDINO: What other species are included in the 5 Native Fishes Recovery Plan? 6 MR. VANDENBERG: There's Sacramento splittail, the 7 long-fin smelt, there's green sturgeon, some races of 8 salmon, Sacramento perch. 9 MR. SANDINO: In general, how does a recovery plan 10 work to accomplish the recovery of these species? 11 MR. VANDENBERG: What we do is we look at, first, the 12 affects that are causing the species' decline. Then we 13 seek to address those by, essentially, reversing those 14 affects. 15 MR. SANDINO: Does the recovery plan treat species 16 that are listed as threatened differently than it treats 17 species that are listed as endangered? 18 MR. VANDENBERG: No. 19 MR. SANDINO: Is there a difference, in your opinion, 20 between species that are listed as threatened or 21 endangered? 22 MR. VANDENBERG: The very nature of having a species 23 listed under the Act means that every individual in that 24 population is important. The difference between a 25 threatened species is that it is likely in the future to CAPITOL REPORTERS (916) 923-5447 5477 1 become endangered. An endangered species means that it is 2 likely in the future to become extent. 3 So to an extent, one listing -- well, to an extent 4 an endangered species may seem to be in more trouble 5 because it's closer to the extinction line, but, yet, as I 6 said before, the very nature of having a species listed 7 indicates that every individual is important. 8 MR. SANDINO: Well, is this a fair characterization 9 of distinction of both threatened and endangered species 10 are in need of protection, but endangered species are in 11 need of more protection? 12 MR. VANDENBERG: I would say that a listed species is 13 in need of great protection. 14 MR. SANDINO: Both threatened and -- 15 MR. VANDENBERG: Threatened or endangered. 16 MR. SANDINO: Okay. Let me take you back to the 17 recovery plan that's been prepared for the native species 18 including the Delta smelt. Does this plan have criteria to 19 determine if the Delta smelt has recovered? 20 MR. VANDENBERG: Yes, it does. 21 MR. SANDINO: Okay. What is meant by the term 22 "recovered" in this context? 23 MR. VANDENBERG: That the species would be removed 24 from the -- from the list, the endangered and threatened 25 species list. CAPITOL REPORTERS (916) 923-5447 5478 1 MR. SANDINO: Do you know if the recovery criteria 2 for the Delta smelt requires an annual evaluation of Delta 3 smelt population? 4 MR. VANDENBERG: In recovering the Delta smelt what 5 is required is, essentially, that distribution and 6 abundance meets some level, as identified in the plan, over 7 a five-year period. So every year we would look at that 8 and, say, is the species as it currently exists this year 9 meeting the survival -- or excuse me, the abundance and 10 distribution criteria? And, then, if it is, then we go on 11 to the next year and so forth. If it's not, then, we start 12 over. 13 MR. SANDINO: Have -- has the abundance and 14 distribution criteria been evaluated for the Delta smelt 15 for the past five years? 16 MR. VANDENBERG: Yes, it has. 17 MR. SANDINO: Do you know whether the level of Delta 18 smelt abundance and distribution has satisfied the recovery 19 criteria for any of the past five years? 20 MR. VANDENBERG: Not five years consecutively. 21 MR. SANDINO: Isn't it correct, through, that the 22 Delta smelt abundance and distribution has satisfied 23 recovery criteria for four out of the last five years? 24 MR. VANDENBERG: I don't know. 25 MR. SANDINO: Do you know if it satisfied the CAPITOL REPORTERS (916) 923-5447 5479 1 recovery criteria for any of the last five years? 2 MR. VANDENBERG: Yes, it has. 3 MR. SANDINO: It has. But you don't know whether it 4 satisfied four out of the last five? 5 MR. VANDENBERG: No, I don't. 6 MR. SANDINO: Okay. It's my understanding about 7 issuing biological opinions; isn't it correct, that 8 biological opinions should be issued on the best scientific 9 information available? 10 MR. VANDENBERG: Yes. 11 MR. SANDINO: How well is Delta smelt biology 12 understood in your opinion? 13 MR. VANDENBERG: Well. 14 MR. SANDINO: Well. Are there any aspects of Delta 15 smelt biology that are not well understood? 16 MR. VANDENBERG: No. 17 MR. SANDINO: So if I understand it correctly, we 18 understand everything we need to understand about Delta 19 smelt biology? 20 MR. VANDENBERG: Well, I currently don't know if in 21 the last four years they have met the recovery criteria. I 22 would like to go back and check my references on it. 23 MR. SANDINO: Okay. Fair enough. Are you aware of 24 any scientific work that is being carried out to increase 25 the understanding of the Delta smelt? CAPITOL REPORTERS (916) 923-5447 5480 1 MR. VANDENBERG: How do you mean? 2 MR. SANDINO: For instance, is the interagency 3 ecological program doing work to study Delta smelt 4 distribution and abundance levels? 5 MR. VANDENBERG: Yes, they have. 6 MR. SANDINO: Is it possible as time goes on Delta 7 smelt biology will be better understood? 8 MR. VANDENBERG: It's possible. 9 MR. SANDINO: Okay. Is it also possible that maybe 10 some of your conclusions about ISDP will be modified, 11 perhaps, if Delta smelt biology is better understood? 12 MR. VANDENBERG: I could understand Delta smelt 13 biology and know all that there is to know, but if the 14 project, as proposed, still jeopardizes the species we 15 still have a problem. 16 MR. SANDINO: Okay. Let me take you back to a 17 question by Mr. Jackson relating to entrainment at the 18 pumps. As I understand your testimony it is that as 19 pumps -- as pumping increases in the South Delta that 20 entrainment increases the Delta smelt; is that correct? 21 MR. VANDENBERG: That's correct. I'd like to say, 22 also, that, certainly, that would depend on the 23 distribution. 24 MR. SANDINO: Okay. Are Delta smelt found in the 25 South Delta year-round? CAPITOL REPORTERS (916) 923-5447 5481 1 MR. VANDENBERG: Yes, they are. 2 MR. SANDINO: Are there certain times of the year 3 when their population numbers increase in the South Delta? 4 MR. VANDENBERG: Generally, during the spawning 5 migrations. 6 MR. SANDINO: What period of the year is that? 7 MR. VANDENBERG: It could start as early as September 8 and continue through June. It also depends on the type of 9 water year that we have, if it's a dryer year that may 10 extent into August. 11 MR. SANDINO: If pumping was modified during the time 12 when Delta smelt was present in the South Delta in these 13 larger numbers, would that reduce entrainment? 14 MR. VANDENBERG: It depends on what you mean by 15 "modified." If you're modifying it up, I would say, no. 16 MR. SANDINO: How about if you're modifying it down? 17 MR. VANDENBERG: I would say that if the smelt are in 18 the -- what we call the zone of influence of the pumps, and 19 that's where they're likely to be drawn down to the pumps 20 and pumping is decreased, I say -- I would think that that 21 would minimize impacts. 22 MR. SANDINO: Let me move to some tale -- some tale 23 about -- let me start over. This is not a tale. 24 Let me move to some questions about the splittail. 25 What is the listing status of the splittail? CAPITOL REPORTERS (916) 923-5447 5482 1 MR. VANDENBERG: It is currently proposed as 2 threatened. 3 MR. SANDINO: What is meant when a species is 4 proposed to be listed? 5 MR. VANDENBERG: It means that there's enough 6 information out there that shows that the species is 7 declining to warrant scientific evaluation. 8 MR. SANDINO: Does a proposed species receive the 9 same legal protections as a species that's listed as 10 threatened or endangered? 11 MR. VANDENBERG: No, it doesn't. 12 MR. SANDINO: Do you know when the listing decision 13 is supposed to be made for splittail? 14 MR. VANDENBERG: That date is open-ended currently. 15 MR. SANDINO: Can you give us an estimation? 16 MR. VANDENBERG: Sometime in the future. 17 MR. SANDINO: I'll take that. 18 C.O. CAFFREY: Very precise. 19 MR. SANDINO: If at some time in the future if it 20 turns out that the splittail is not listed, might that fact 21 affect some of your opinions about the splittail? 22 MR. VANDENBERG: I -- how do you mean? 23 MR. SANDINO: Well, for instance, if the splittail is 24 not listed, would you still be obligated to issue a 25 biological opinion concerning splittail impacts? CAPITOL REPORTERS (916) 923-5447 5483 1 MR. VANDENBERG: No, I wouldn't. 2 MR. SANDINO: I want to ask some more background 3 questions about the splittail. Are you familiar with the 4 paper on "Splittail Biology" prepared by Ted Somner of the 5 Department of Water Resources, Randy Baxter of the 6 Department of Fish and Game, Bruce Herbold of EPA that was 7 publish in 1997 in the Transactions of the American 8 Fisheries Society? 9 MR. VANDENBERG: On the resilience of splittail? 10 MR. SANDINO: Yes. 11 MR. VANDENBERG: Yes. 12 MR. SANDINO: Is it safe to characterize this 13 publication as one of the Seminole works on splittail 14 biology? 15 MR. VANDENBERG: Seminole? 16 MR. SANDINO: Important. 17 MR. VANDENBERG: It's an important work. 18 MR. SANDINO: Are you familiar enough with that 19 publication to know about some of its conclusions about 20 splittail abundance? 21 MR. VANDENBERG: What I know from that paper is that 22 it stated in very wet years, when there's a lot of flooded 23 vegetation, the population of splittail tends to increase. 24 MR. SANDINO: Okay. Isn't it correct, too, that that 25 paper shows that in 1995, which was a wet year, that CAPITOL REPORTERS (916) 923-5447 5484 1 splittail abundance was at one of its highest recorded 2 levels? 3 MR. VANDENBERG: Yes. It also showed in '97, which 4 was also a wet year, that abundance wasn't as high. 5 MR. SANDINO: Do you know what is some of the 6 determinative factors for splittail abundance according to 7 that paper? 8 MR. VANDENBERG: Do you mean what are some of the 9 factors that cause the increase in population? 10 MR. SANDINO: Yes. 11 MR. VANDENBERG: Wet years, flooded vegetation. 12 The -- the Sacramento splittail seeks flooded vegetation 13 upon which to spawn. And so it follows that in very wet 14 years when there's flood conditions and there's a lot of 15 vegetation that's flooded, then, they're likely going to do 16 pretty good. 17 MR. SANDINO: Do splittails spawn in, or occupy the 18 Yolo Bypass when its flooded? 19 MR. VANDENBERG: When that's flooded they -- they 20 occupy that. 21 MR. SANDINO: Is the flooding of the Yolo Bypass an 22 important component to splittail population levels? 23 MR. VANDENBERG: I would say that flooding of native 24 vegetation, or vegetation within the streams, such as the 25 Sacramento River and the American River, is more important CAPITOL REPORTERS (916) 923-5447 5485 1 than flooding of vegetation in artificial habitat such as 2 the Yolo Bypass. 3 MR. SANDINO: And you consider this flooding of the 4 Sacramento area the most important factor in splittail 5 population numbers? 6 MR. VANDENBERG: I consider it an important factor. 7 I consider the flooding of vegetation throughout the system 8 to be -- throughout the entire system to be the most 9 important. 10 MR. SANDINO: Does the barrier program affect the 11 flooding? 12 MR. BRANDT: Objection. Vague. 13 MR. SANDINO: I can try it again. Does the barrier 14 program affect the flooding in the Sacramento area on 15 splittail habitat? 16 MR. VANDENBERG: No, it doesn't. 17 MR. SANDINO: Let me ask you a few questions about 18 the status of the consultation between the Department and 19 the Service. Did you hear Mr. Ford's testimony during the 20 beginning of this phase? 21 MR. VANDENBERG: I heard it. I don't recall it. 22 MR. SANDINO: Well, let me ask you this: Mr. Ford 23 testified that the Corps -- Strike that. 24 Mr. Ford testified that the Department is in 25 consultation with the Fish and Wildlife Service for impacts CAPITOL REPORTERS (916) 923-5447 5486 1 caused by the ISDP program to Delta smelt and splittail. 2 Is that your understanding, also? 3 MR. VANDENBERG: My understanding is that we've 4 concluded consultation. We have a draft opinion that -- 5 okay, I suppose we've concluded formal consultation. I'd 6 say that we are back to informal consultation. We have 7 concluded -- we have a draft opinion. 8 MR. SANDINO: Let me clarify that about a draft 9 opinion. So as I understand it, the Service has not issued 10 a final biological opinion yet for ISDP? 11 MR. VANDENBERG: For respect of the Department of 12 Water Resources, because our -- the opinion on ISDP found 13 jeopardy to the species, we issued a draft opinion to them, 14 which sooner or later is going to have to be concluded to 15 give them an idea where the -- where I was coming from, 16 where the Service is coming from on the proposed action so 17 they could have a chance to see the impacts and, perhaps, 18 modify their project. 19 MR. SANDINO: Okay. So as I understand it, then, the 20 Service and DWR are still attempting to reach some kind of 21 consensus about the appropriate project description and 22 mitigation measures to avoid a jeopardy biological opinion; 23 is that correct? 24 MR. VANDENBERG: I have included a reasonable and 25 prudent alternative in that opinion that would seek to do CAPITOL REPORTERS (916) 923-5447 5487 1 that. 2 MR. SANDINO: Okay. But this opinion that you're 3 talking about is still a draft opinion? 4 MR. VANDENBERG: It's a draft opinion. 5 MR. SANDINO: You mentioned the term "reasonable and 6 prudent alternative," what is meant by that? 7 MR. VANDENBERG: A reasonable and prudent alternative 8 is a Service alternative to remove the jeopardizing affects 9 of the project. So if a project as proposed jeopardizes 10 the continued existence of a species, or results in adverse 11 modification or destruction of habitat, we will -- we will 12 present an alternative, that in our belief, removes those 13 jeopardizing affects. 14 MR. SANDINO: Okay. And is it correct that if the 15 project proponent follows the directions of that reasonable 16 and prudent alternative, they can go forward with the 17 project? 18 MR. VANDENBERG: Yes. 19 MR. SANDINO: You mentioned the term "jeopardy 20 biological opinion." What is the difference between a 21 jeopardy biological opinion and a nonjeopardy biological 22 opinion? 23 MR. VANDENBERG: A jeopardy biological opinion finds 24 that the action as proposed would depreciably, directly or 25 indirectly, reduce both survival and recovery of the listed CAPITOL REPORTERS (916) 923-5447 5488 1 species by reducing their population, distribution and 2 abundance. 3 MR. SANDINO: And what -- I'm sorry? 4 MR. VANDENBERG: And a no jeopardy does not find 5 that. 6 MR. SANDINO: Do nonjeopardy biological opinions 7 contain any mitigation responsibilities on the project 8 proponent? 9 MR. VANDENBERG: In a nonjeopardy biological opinion 10 we provide reasonable and prudent measures to reduce the 11 impacts of taking. And at times, in those reasonable and 12 prudent measures, we require, perhaps, habitat replacement 13 or some other action. 14 MR. SANDINO: So maybe -- is this a fair 15 characterization: That reasonable and prudent measures are 16 another way for saying that the project proponent has a 17 mitigation responsibility for impacts to the species? 18 MR. VANDENBERG: Well, a reasonable and prudent 19 measure says that the applicant has the responsibility to 20 minimize the impacts to the maximum extent practicable to 21 reduce take. 22 MR. SANDINO: Okay. Let me ask it again: Are 23 reasonable and prudent measures simply mitigation measures, 24 perhaps? 25 MR. VANDENBERG: No, they're not. They're CAPITOL REPORTERS (916) 923-5447 5489 1 minimization measures, also. 2 MR. SANDINO: What is the difference between a 3 reasonable and prudent alternative and a reasonable and 4 prudent measure? 5 MR. VANDENBERG: A reasonable and prudent measure 6 would reduce the impacts of taking while allowing the 7 project to, essentially, go ahead as proposed. A 8 reasonable and prudent alternative provides an alternative, 9 and I hate to use the same word in my definition, but it 10 provides an alternative that, essentially, doesn't allow 11 the project to go ahead as proposed. 12 MR. SANDINO: But it does allow the project to go 13 ahead if the project proponent follows the reasonable and 14 prudent alternative? 15 MR. VANDENBERG: If the reason and prudent 16 alternative is followed and the affects -- and the 17 jeopardizing affects are reduced, the project can go 18 forward. 19 MR. SANDINO: You indicated that you are somewhat 20 familiar with Mr. Ford's testimony. Are you aware that he 21 testified that DWR is considering operational changes to 22 the Grant Line barrier? 23 MR. VANDENBERG: I don't recall. I mean I don't -- I 24 don't know what they said. 25 MR. SANDINO: Well, let me ask you this: Assuming CAPITOL REPORTERS (916) 923-5447 5490 1 that there are some modifications made as part of the ISD 2 Program to the Grant Line barrier that reduce impacts to 3 some of the listed species, might that cause you to modify 4 your opinion about the ISD Program? 5 MR. VANDENBERG: It's more than just one barrier 6 operating alone, or some amount of export pumping. It's 7 all of the barriers operating together with pumping, with 8 the other affects that were nonfederal actions that are 9 going on, that, all in combination, lead to the 10 determination of jeopardy. It's not just one -- you can't 11 just single out the Grant Line barrier and say, if we do 12 some modifications here, that will resolve the issues 13 MR. SANDINO: Fair enough. But isn't it accurate to 14 characterize some of your concerns about the barriers, that 15 one of the major concerns was the Grant Line barrier? 16 MR. VANDENBERG: I have a major concern with all of 17 the barriers acting together. If you -- if you change the 18 operation of one barrier, that's a change in operation. 19 That would need to be reevaluated and re-looked at. 20 MR. SANDINO: So that if the Grant Line barrier is 21 modified, that might cause you to change some of your 22 conclusions in the biological opinion? 23 MR. VANDENBERG: I would have to -- I would have to 24 look at those changes. 25 MR. SANDINO: Okay. Let's move, now, to your CAPITOL REPORTERS (916) 923-5447 5491 1 discussion of the temporary barriers biological opinion. 2 As I understand your testimony, you indicated that you have 3 reviewed the Service's biological opinion for the Temporary 4 Barriers Program; is that correct? 5 MR. VANDENBERG: Well, I wrote the opinion. 6 MR. SANDINO: You, actually, prepared the opinion? 7 MR. VANDENBERG: Yes, I did. 8 MR. SANDINO: Okay. And what type of opinion was 9 this, was this jeopardy or nonjeopardy? 10 MR. VANDENBERG: No. As I stated I didn't find 11 jeopardy for this, because the impacts were temporary in 12 nature. 13 MR. SANDINO: Okay. Isn't it true, too, in your 14 testimony that you indicated that the project 15 configurations and timing of the Temporary Barrier Project 16 had been modified to minimize impacts to the species of 17 concern? 18 MR. VANDENBERG: Yes. 19 MR. SANDINO: Your testimony, I believe, also 20 indicated that one of the mitigation measures to minimize 21 these impacts was the removal of the barriers if certain 22 biological triggers were tripped; is was correct? 23 MR. VANDENBERG: Yeah. In the biological assessment 24 provided by the Department of Water Resources they stated 25 that barriers would be modified or removed if biological CAPITOL REPORTERS (916) 923-5447 5492 1 impacts occurred. 2 MR. SANDINO: What are these biological triggers that 3 would trigger removal? 4 MR. VANDENBERG: I'm sorry? 5 MR. SANDINO: What are these biological triggers that 6 would require the removal of the barriers? 7 MR. VANDENBERG: There's a trigger for take at the 8 export facilities if it meets -- if it meets a certain 9 number that is like, what we call, a yellow-light trigger 10 that let's us know that we have to take caution. There's 11 also a distribution trigger that states if the smelt move 12 into the South Delta, in this certain area, that's another 13 trigger. We've got to -- it's another yellow light that's 14 tripped. We've got to see that -- we see that that's 15 tripped and we take action. 16 MR. SANDINO: So if some types of concerns -- 17 biological concerns are raised, and at that point a message 18 is given to DWR to remove the barriers, as I understand it? 19 MR. VANDENBERG: A message is given to DWR that some 20 sort of modification is needed. They can open the flap 21 gates on all the barriers to allow water to go through both 22 upstream and downstream. They can remove the barriers as 23 one option. They can reduce pumping, is another option. 24 That's -- 25 MR. SANDINO: There's several different things that CAPITOL REPORTERS (916) 923-5447 5493 1 the Department can do? 2 MR. VANDENBERG: Right. 3 MR. SANDINO: In your opinion, is it better for the 4 species of concern if the barriers are removed as quickly 5 as possible if the biological triggers occur? 6 MR. VANDENBERG: What I seek -- what I seek to do is 7 to -- when the triggers are tripped, I seek to reset those 8 triggers by whatever method it takes. If opening the flap 9 gates will do that, then, that's what we'd like to see 10 done. 11 If removal of the barriers is the best option, 12 then, that's the best option. But simply saying: Removing 13 the barriers as quickly as possible is not -- is not the 14 action that we're looking for. The action that we're 15 looking for is that that removes the impacts. 16 MR. SANDINO: As I understand it, the action that is 17 required will depend on the severity of the biological 18 trigger? 19 MR. VANDENBERG: Yes. 20 MR. SANDINO: In some situations it may require 21 opening of the flap gates; but other situations, it may 22 require removal of the barriers; is that correct? 23 MR. VANDENBERG: And in still others it may require 24 reducing the pumping or a combination of two of those, 25 or -- CAPITOL REPORTERS (916) 923-5447 5494 1 MR. SANDINO: Okay. In situations where it has been 2 determined that it's better for the fish to remove the 3 barriers, is it -- is it better to remove the barriers as 4 quickly as possible? 5 MR. VANDENBERG: Are you saying that if the triggers 6 are tripped and the decision is made to remove the 7 barriers, is it best to remove those as quickly as 8 possible? 9 MR. SANDINO: Yes. 10 MR. VANDENBERG: I think that follows. 11 MR. SANDINO: Do you know how long it takes to remove 12 a temporary barrier? 13 MR. VANDENBERG: No, I don't. 14 MR. SANDINO: Does it sound like a reasonable 15 estimate that it takes about three days? 16 MR. VANDENBERG: I don't know how long it takes. 17 MR. SANDINO: Do you know how long it takes to open a 18 gate of a permanent barrier? 19 MR. VANDENBERG: Probably -- well, there's -- the 20 staff has to be notified and then they have to be mobilized 21 and then they have to get to the site and then, actually, 22 open the gate. That can take -- I don't know -- depending 23 on how fast they're going to move, how fast they're going 24 to drive and -- 25 MR. SANDINO: Let me make sure you understand the CAPITOL REPORTERS (916) 923-5447 5495 1 question, I'm talking about the gate of a permanent barrier 2 rather than the temporary barrier. Do you know how long it 3 takes to open, assuming that the permanent barriers are in 4 place, a gate of a permanent barrier which is handled 5 electronically? 6 MR. VANDENBERG: I imagine they can do that with a 7 push of a button. 8 MR. SANDINO: Well, does it sound like a reasonable 9 estimate that it would take less than an hour to remove a 10 gate of a permanent barrier? 11 MR. VANDENBERG: To open a gate? 12 MR. SANDINO: Yes. 13 MR. VANDENBERG: Yes. 14 MR. SANDINO: Okay. Well, comparing only the 15 permanent barriers to the temporary barriers in the context 16 of opening them, which group of barriers would be best able 17 to minimize impacts to fish, the permanent barriers or the 18 temporary barriers? 19 MR. VANDENBERG: Can you repeat that? 20 MR. SANDINO: Sure. Comparing, now, only permanent 21 barriers -- comparing permanent barriers to temporary 22 barriers, which group of barriers, permanent or temporary 23 are best able to minimize impacts to fish? 24 MR. VANDENBERG: Well, they both cause, in my 25 opinion, impacts to fish, which one is best able to do that CAPITOL REPORTERS (916) 923-5447 5496 1 really depends on a lot of things. Just simply opening up 2 a gate of a barrier, be it a flap gate or a radial 3 structure gate on the permanent structure may not 4 necessarily remove the impact of the pump -- at the pump. 5 MR. SANDINO: Fair enough. But which of these two 6 barriers is best able to minimize impacts, not necessarily 7 remove all of them? 8 MR. VANDENBERG: I can't answer that at this time. 9 MR. SANDINO: Okay. Let me follow up on some 10 questions from Mr. Jackson. If I understood your testimony 11 correctly, one of your concerns about the ISD Program was 12 the impact to critical habitat; is that correct? 13 MR. VANDENBERG: Yes. 14 MR. SANDINO: And you indicated that the potential 15 impacts to the program were to three acres of critical 16 habitat? 17 MR. VANDENBERG: Direct impacts were to three acres. 18 There were also indirect impacts. 19 MR. SANDINO: When we use the term "critical habitat" 20 in the context of Delta smelt and splittail, what type of 21 habitat are we talking about? 22 MR. VANDENBERG: We're talking about water, because 23 the fish lives in water. We're talking about physical 24 habitat such as vegetation. We're talking about flow, 25 because the smelt needs flow for upstream and downstream CAPITOL REPORTERS (916) 923-5447 5497 1 migration. And we're also talking about salinity. So 2 there's four elements to that habitat. 3 MR. SANDINO: When you're talking about physical 4 habitat, is that shallow-water habitat? 5 MR. VANDENBERG: Yes, it is. 6 MR. SANDINO: What is meant by the term 7 "shallow-water habitat"? 8 MR. VANDENBERG: Essentially, it's -- it's four 9 meters or less. 10 MR. SANDINO: And what type of biological purpose 11 does this habitat serve for these species of concern? 12 MR. VANDENBERG: The physical habitat? 13 MR. SANDINO: Yes. 14 MR. VANDENBERG: It can serve as a substraight for 15 the attachment of eggs. It can serve as refugium from 16 predators. It provides food source for feeding and 17 association just for sheltering, hanging out doing what a 18 fish does. 19 MR. SANDINO: When you indicate that three acres of 20 habitat would be impacted by ISDP, is this three acres of 21 the shallow-water habitat that you're referring to? 22 MR. VANDENBERG: It's approximately three acres. 23 MR. SANDINO: Three acres. And I believe you 24 testified earlier from a question asked by Mr. Jackson that 25 there's 700 miles of habitat in the Delta; is that correct, CAPITOL REPORTERS (916) 923-5447 5498 1 700 miles of water? 2 MR. VANDENBERG: Some 700 miles of waterways. 3 MR. SANDINO: Okay. Is it possible to translate 4 these miles into the number of acres of habitat that's in 5 the Delta? 6 MR. VANDENBERG: I believe it's about 1,153 square 7 miles. 8 MR. SANDINO: Of habitat, or just land in the 9 Delta -- let me take a step back. 10 You indicated that there's 700 miles of habitat, 11 more or less, in the Delta. I want to try to translate 12 that into acres. How many acres, if you know, of 13 shallow-water habitat are total in the Delta? 14 MR. BRANDT: Objection. I think you mischaracterized 15 the testimony. You used the word 700 miles of habitat. I 16 think he testified to 700 miles of waterways. 17 MR. SANDINO: Okay. I stand corrected. Thank you. 18 MR. BRANDT: I just want to make sure that's a 19 correct statement. 20 C.O. CAFFREY: Thank you, gentlemen. 21 MR. SANDINO: Thank you. Let me ask the question 22 again. Do you know how many miles -- do you know how many 23 acres of shallow-water habitat, total, are in the Delta? 24 MR. VANDENBERG: No, I don't. 25 MR. SANDINO: Does 3,000 acres sound like a CAPITOL REPORTERS (916) 923-5447 5499 1 reasonable estimation of the amount of shallow-water 2 habitat in the Delta? 3 MR. VANDENBERG: I don't know. 4 MR. SANDINO: Okay. Do you think -- 5 MEMBER BROWN: Mr. Chairman? 6 C.O. CAFFREY: Mr. Brown. 7 MEMBER BROWN: Point of clarification here. I 8 thought I heard you say that there's about 1,053 square 9 miles of habitat in the Delta? 10 MR. VANDENBERG: There's 700 miles of waterways and 11 that's approximately according to the State Lands 12 Commission 1,153 square miles. 13 MEMBER BROWN: Well, there's 640 acres in a square 14 mile, does that make the number of acres of habitat then? 15 MR. VANDENBERG: I'm sorry, can you -- 16 MEMBER BROWN: There's 640 square acres in a square 17 mile. So you're saying there's 1,053 square miles in the 18 Delta? 19 MR. VANDENBERG: What I was saying is that there were 20 700 miles of waterways. 21 MEMBER BROWN: That's correct. 22 MR. VANDENBERG: Some of those waterways may be 23 deeper and likely are deeper than four meters. But I 24 believe overall, the 700 miles of waterways equates to 25 1,153 square miles. So not all of that would be CAPITOL REPORTERS (916) 923-5447 5500 1 shallow-water habitat. 2 MEMBER BROWN: Okay. Thank you, Mr. Chairman. 3 C.O. CAFFREY: Go ahead, Mr. Sandino. 4 MR. SANDINO: Let's get back to the shallow-water 5 habitat. Do you believe that it's appropriate to compare 6 the amount of shallow-water habitat impacted by the project 7 to the total amount of shallow-water habitat in the Delta 8 in reaching your conclusions in the biological opinion? 9 MR. VANDENBERG: I think it's important to minimize 10 to the maximum extent practicable any impact to 11 shallow-water habitat. 12 MR. SANDINO: Fair enough. Let me try the question 13 again: Do you think it's important to know the amount of 14 habitat that is impacted by the project and compare that to 15 the total amount of habitat in the Delta when you're making 16 some conclusions about the project in your biological 17 opinion? 18 MR. VANDENBERG: Yes. 19 MR. SANDINO: Okay. Why is that important? 20 MR. VANDENBERG: Well, because you need to know how 21 much habitat is being affected by the proposed action and 22 compare that to how much habitat is there so we can -- so 23 we're not constantly allowing the nibbling away of some of 24 the critical habitat. 25 MR. SANDINO: In your view, does shallow-water CAPITOL REPORTERS (916) 923-5447 5501 1 habitat serve as a limiting factor to Delta smelt 2 population? 3 MR. VANDENBERG: There's three other components of 4 that critical habitat that are equally important to the 5 Delta smelt. Physical habitat is one of them. Without 6 water on that it's no good. So you need water. You need 7 the salinity concentrations and you need the river flows. 8 MR. SANDINO: Okay. Assuming, then, that you have 9 the proper flows and salinity concentrations on top of the 10 shallow-water habitat, does shallow-water habitat serve as 11 a limiting factor, in your opinion, for Delta smelt or 12 splittail population? 13 MR. VANDENBERG: I guess I don't understand what you 14 mean by "limiting factor." 15 MR. SANDINO: Well, the question -- I'll try it 16 another way. Does the amount of shallow-water habitat that 17 currently exists in the Delta limit Delta smelt populations 18 in any way? 19 MR. VANDENBERG: Well, certainly, if there was more 20 than that would be better. 21 MR. SANDINO: Okay. You don't have an opinion as to 22 whether there's a limitation right now with the current 23 habitat situation? 24 MR. VANDENBERG: I don't have an opinion. 25 MR. SANDINO: Okay. Do you know if it's possible to CAPITOL REPORTERS (916) 923-5447 5502 1 recreate shallow-water habitat? 2 MR. VANDENBERG: I think it is. 3 MR. SANDINO: Do you know if it is part of DWR's 4 proposal for its ISDP Program to mitigate for the loss of 5 shallow habitat caused by the project? 6 MR. VANDENBERG: As ISDP was proposed and as I 7 consulted on it, they did not provide any habitat to offset 8 the impact. They -- ISDP, as was proposed, provided no 9 ecosystem restoration. 10 MR. SANDINO: As the Draft Biological Opinion was 11 issued, was a habitat component included as one of the 12 reasonable and prudent measures or reasonable and prudent 13 alternatives? 14 MR. VANDENBERG: Yes, it was. 15 MR. SANDINO: Is it correct that one of the 16 requirements was that DWR mitigate for impacts to habitat 17 as -- at a three-to-one ratio? 18 MR. VANDENBERG: For the footprints. 19 MR. SANDINO: And when we say that the mitigation 20 requirement is a three-to-one ratio, does that mean for 21 every acre, for instance, of impact to habitat that DWR 22 will have a responsible to recreate three acres? 23 MR. VANDENBERG: Yes. 24 MR. SANDINO: Are you aware of any efforts in the 25 CalFed Program to recreate shallow-water habitat in the CAPITOL REPORTERS (916) 923-5447 5503 1 Delta? 2 MR. VANDENBERG: They have the ecosystem restoration 3 program plan which seeks to do that. 4 MR. SANDINO: Do you know how many acres of habitat 5 they are proposing to recreate in the Delta? 6 MR. VANDENBERG: They're proposing it throughout a 7 variety of different zones, but the actual amounts that 8 they're proposing I do not know. 9 MR. SANDINO: Okay. Let me follow-up on some 10 questions that were asked of Mr. Jackson -- by Mr. Jackson 11 of you relating to water quality benefits of the program. 12 As I understand your testimony you have provided a 13 written statement that the Temporary Barriers Project does 14 not improve water quality based on your review of DWR's 15 monitoring reports; is that correct? 16 MR. VANDENBERG: I reviewed the monitoring reports 17 submitted by the Department. And from those -- from 18 reading those and the conclusions that they drew in those 19 documents, I drew the conclusions that I have stated. 20 MR. SANDINO: Is it correct that these monitoring 21 reports compared water quality conditions only both 22 upstream and downstream of the barriers? 23 MR. VANDENBERG: The reports compared water quality 24 upstream and downstream of the barriers and made a general 25 conclusion that the water quality in the South Delta, CAPITOL REPORTERS (916) 923-5447 5504 1 overall, was no different than that from 1971. 2 MR. SANDINO: Okay. And I believe you also 3 testified, based on some questions from Mr. Jackson, that 4 you are, generally, familiar with how the temporary 5 barriers operate? 6 MR. VANDENBERG: Yes, I am. 7 MR. SANDINO: And you indicated that the temporary 8 barriers have a flap gate on them? 9 MR. VANDENBERG: Yes, they do on the downstream. 10 MR. SANDINO: Is it correct, then, that the 11 monitoring reports simply confirm that water quality does 12 not differ significantly on opposite sides of the barriers 13 due to flap gate operations? 14 MR. VANDENBERG: Can you repeat that? 15 MR. SANDINO: Sure. Do you agree that the monitoring 16 reports simply confirm that water quality in the South 17 Delta just does not significantly differ on opposite sides 18 of the barriers? 19 MR. VANDENBERG: They've -- they've made that 20 conclusion. But they've also stated that overall the water 21 quality in the South Delta does not significantly differ 22 from that of 1971. 23 MR. SANDINO: Well, let me ask you this: When you 24 offered your opinion that the Temporary Barriers Program 25 does not improve water quality in the South Delta, were you CAPITOL REPORTERS (916) 923-5447 5505 1 only comparing water quality upstream and downstream of the 2 barriers? 3 MR. VANDENBERG: I compared water quality upstream 4 and downstream of the barriers. But I, also, looked at the 5 conclusions of the Department, which stated that the water 6 quality in the South Delta didn't differ significantly from 7 that of 1971. 8 MR. SANDINO: Okay. I don't recall, was 1971 a year 9 in which the barriers were installed? 10 MR. VANDENBERG: No, they weren't, at least not as 11 the barrier program that we know as the Temporary Barriers 12 Program is known. 13 MR. SANDINO: Let me explore your conclusion a little 14 bit more. In reaching your conclusion about the temporary 15 barriers affect on South Delta water quality, did you 16 compare the water quality with the Temporary Barriers 17 Project with the water quality conditions without the 18 barriers? 19 MR. VANDENBERG: I simply reviewed the monitoring 20 reports and drew my conclusions from that. 21 MR. SANDINO: Okay. So if I understand you 22 correctly, you did not compare water quality conditions 23 with barriers with those without barriers? 24 MR. VANDENBERG: If you're asking was I out in the 25 rivers comparing water quality, no, I wasn't. What I was CAPITOL REPORTERS (916) 923-5447 5506 1 doing is reviewing the monitoring reports that were 2 submitted by the Department and reviewing those and drawing 3 my conclusions based on what was provided in those reports. 4 MR. SANDINO: Well, let me take you back to Mike 5 Ford's testimony. Did you hear a part of Mr. Ford's 6 testimony that compared water quality conditions with 7 barriers with those without barriers? 8 MR. VANDENBERG: No, I didn't hear that. 9 MR. SANDINO: Okay. Did you hear the part of his 10 testimony that indicated that modeling results showed that 11 water quality conditions at most South Delta locations 12 would improve as a result of the barrier installation as 13 compared to without barriers? 14 MR. VANDENBERG: I didn't hear that. 15 MR. SANDINO: Okay. Do you believe this is something 16 that would be important for you to consider in reaching 17 your biological opinion about what would happen to water 18 quality conditions with barriers and without? 19 MR. VANDENBERG: I think that's important to know. 20 MR. SANDINO: Okay. Just a couple more questions. 21 In your Draft Biological Opinion, did you consider the 22 project benefits to South Delta water users for water 23 levels and water circulation? 24 MR. VANDENBERG: Do you mean did I -- did I consider 25 the affects, or the benefits to the South Delta as it CAPITOL REPORTERS (916) 923-5447 5507 1 relates to Delta smelt? 2 MR. SANDINO: Well, no. You've reached a -- as I 3 understand it, a draft conclusion, or an opinion in your 4 Draft Biological Opinion about impacts to these species of 5 concerns, the smelt and the splittail. 6 In reaching your conclusions, did you consider the 7 project benefits that would be conferred to South Delta 8 water users for water levels and water circulation? 9 MR. VANDENBERG: In my opinion I was consulting on 10 the impacts to listed species, not the benefits to the 11 South Delta. 12 MR. SANDINO: Yeah, that was my question. So the 13 focus of your conclusion was based on impacts to the 14 species, splittail and smelt, and not project benefits? 15 MR. VANDENBERG: That's correct. 16 MR. SANDINO: In your analysis, and I believe 17 Mr. Jackson asked you a question about this, too, did you 18 consider the benefits to salmon and steelhead outmigrating 19 on the San Joaquin River due to the head of Old River 20 barrier in your analysis? 21 MR. VANDENBERG: I noted in my analysis that when the 22 head of Old River barrier was installed, that from what -- 23 I noted that there was benefit in keeping the smolts in the 24 San Joaquin River, but that was the extent. 25 MR. SANDINO: So you acknowledge, then, that the head CAPITOL REPORTERS (916) 923-5447 5508 1 of Old River barrier does confer a benefit to the salmon 2 and steelhead? 3 MR. VANDENBERG: Although there may be some benefit 4 to salmon, I don't believe it was just San Joaquin fall-run 5 salmon, that there was also impacts to smelt. So although 6 it may provide some benefit to salmon, there is, certainly, 7 affects to the Delta smelt. 8 MR. SANDINO: Okay. Fair enough. So you noted 9 there's impacts to smelt, but you noted there is also 10 positive contributions to salmon, in your opinion, as a 11 result of the barrier? 12 MR. VANDENBERG: I noted there was one benefit in 13 keeping -- in keeping salmon in the San Joaquin as opposed 14 to going down Old River. 15 MR. SANDINO: Okay. Let me just double-check my 16 notes here. 17 C.O. CAFFREY: Go ahead, Mr. Sandino. 18 MR. SANDINO: I don't have any other questions. 19 C.O. CAFFREY: All right. Thank you, Mr. Sandino. 20 What we'll do now is we'll break -- 21 C.O. STUBCHAER: Mr. Chairman, could I ask just one 22 question before the break? 23 C.O. CAFFREY: Yes. 24 C.O. STUBCHAER: Not so quick. 25 C.O. CAFFREY: All right, sir. CAPITOL REPORTERS (916) 923-5447 5509 1 C.O. STUBCHAER: I'm just curious. 2 C.O. CAFFREY: Go ahead. 3 C.O. STUBCHAER: Do salmon eat Delta smelt? 4 MR. VANDENBERG: Not that I know of. 5 C.O. STUBCHAER: Does anything eat Delta smelt? 6 MR. VANDENBERG: Certainly, I mean just by the nature 7 of the food chain something is going to eat them. Striped 8 bass has been known to take them, black bass, I mean -- 9 if -- if nothing ate them, historically, there probably 10 would have been millions of them just so thick that you 11 know you could walk across them. Something is eating them. 12 C.O. STUBCHAER: But you don't know if salmon eat 13 them? 14 MEMBER BROWN: Is that because they're spawning when 15 they come up the river? 16 MR. VANDENBERG: I'm sorry? 17 MEMBER BROWN: Is that because they're spawning when 18 they come up the river, why wouldn't they eat them? 19 MR. VANDENBERG: Which? 20 MEMBER BROWN: Salmon. 21 MR. VANDENBERG: Well, I don't know if salmon eat 22 smelt. 23 C.O. STUBCHAER: Okay. Thank you. 24 C.O. CAFFREY: All right. Let's break until about 25 25 minutes to 11:00 on that clock and when we come back we'll CAPITOL REPORTERS (916) 923-5447 5510 1 here from Mr. O'Laughlin, Mr. Herrick and Mr. Nomellini. 2 (Recess taken from 10:23 a.m. to 10:38 a.m.) 3 C.O. CAFFREY: All right. We're back. And let's 4 see, is Mr. Brandt available? It's your turn, 5 Mr. O'Laughlin, but we need a witness. 6 MR. O'LAUGHLIN: No, not for this one I don't. 7 C.O. CAFFREY: Well, we can swear you in then. 8 MR. O'LAUGHLIN: At this time the San Joaquin River 9 Authority and its member units has no questions for the 10 witness. We do, however, pursuant to the understanding of 11 the State Water Resources Control Board in the notice for 12 the hearing reserve our right to recall this witness in 13 Phase VIII should we so need to recall him during that 14 phase. 15 C.O. CAFFREY: I believe that is a fair and accurate 16 characterization of what we have and will allow in this 17 procedure. Am I not correct, Ms. Leidigh? 18 MS. LEIDIGH: Yes. 19 C.O. CAFFREY: All right. Thank you, Mr. O'Laughlin. 20 MR. O'LAUGHLIN: Thank you, Mr. Chairman, for your 21 consideration. 22 C.O. CAFFREY: You're welcome, sir. Is Mr. Herrick 23 in the room? It's time to see the optometrist. 24 MR. HERRICK: Crawling my way to the front, thank 25 you. CAPITOL REPORTERS (916) 923-5447 5511 1 C.O. CAFFREY: I was looking back there where you 2 normally sit. All right, sir. Good morning to you. 3 ---oOo--- 4 CROSS-EXAMINATION OF THE DEPARTMENT OF THE INTERIOR 5 BY SOUTH DELTA WATER AGENCY 6 BY JOHN HERRICK 7 MR. HERRICK: Thank you, Mr. Chairman, Board Members, 8 John Herrick for the South Delta Water Agency. 9 Excuse my mess here. Mr. Vandenberg, are you 10 aware that this phase is dealing with the interior Delta 11 standards and the salinity issue on the San Joaquin River; 12 is that correct? 13 MR. VANDENBERG: Yes. 14 C.O. CAFFREY: John, you may want to rotate the whole 15 table just a bit. There you go. 16 MR. HERRICK: If the Board will bear with me in my 17 rather slow beginning here. Mr. Vandenberg, are you aware 18 that according to a 1980 study that the CVP results in 19 approximately 553,000 acre-feet per year less water flowing 20 down the San Joaquin River? 21 MR. BRANDT: Can we also identify -- he's just put 22 something up on the screen, can we identify that? 23 C.O. CAFFREY: That's quite correct, Mr. Brandt, 24 excuse me. 25 MR. HERRICK: This is South Delta Water Exhibit CAPITOL REPORTERS (916) 923-5447 5512 1 Number 14 taken into evidence in Phase I. And it's a table 2 out of that 1980 report. 3 C.O. CAFFREY: Thank you, Mr. Herrick. 4 MR. VANDENBERG: Can you ask that question again? 5 MR. HERRICK: Are you aware that the operation of the 6 CVP according to that 1980 study results in a decrease in 7 flow down the San Joaquin River of approximately 553,000 8 acre-feet per year? 9 MR. VANDENBERG: "Sure." 10 MR. BIRMINGHAM: Excuse me. I'm not sure that that's 11 responsive to the question. The question I believe was 12 prior to looking at the chart that was on the -- 13 that Mr. Herrick just removed from the overhead, was the 14 witness aware of it. And I think that his answer was based 15 upon his review of what was on the document. 16 C.O. CAFFREY: Unfortunately, I didn't hear the 17 answer. What was the gentleman's answer? 18 MR. BIRMINGHAM: Sure. 19 MR. VANDENBERG: I wasn't aware of it. I'm not aware 20 of it. 21 MEMBER BROWN: I'm confused now. 22 C.O. CAFFREY: Yeah, I am confused. 23 MR. VANDENBERG: Well, I looked up there -- 24 C.O. CAFFREY: Not by you, by where we are. Do we 25 have two questions on the table, or one? I'm confused. CAPITOL REPORTERS (916) 923-5447 5513 1 Thank you, I stand unconfused I think by Mr. Stubchaer. 2 Go ahead, Mr. Herrick. 3 MR. HERRICK: Mr. Vandenberg, now on the overhead is 4 a diagram showing the sulfate-salt balance for the San 5 Joaquin River system, it's South Delta Number 20. Were you 6 present when that was introduced in Phase I? 7 MR. VANDENBERG: No, I wasn't. 8 MR. HERRICK: Are you aware of whether or not there's 9 an increase in the accumulation of salts in the San Joaquin 10 Valley as a result of CVP operations? 11 MR. VANDENBERG: No, I'm not. 12 MR. HERRICK: Mr. Vandenberg, what is the Department 13 of Interior's recommended course of action with regard to 14 the interior Delta standards contained in the 1995 Water 15 Quality Control Plan? 16 MR. BRANDT: Objection. Vague. 17 C.O. CAFFREY: Do you have a comment? 18 MR. HERRICK: I thought it was pretty concise. 19 C.O. CAFFREY: Do you understand the question? 20 MR. VANDENBERG: I don't understand what he's asking. 21 C.O. CAFFREY: All right. Try to be a little more 22 specific, then, Mr. Herrick. He doesn't understand the 23 question. 24 MR. HERRICK: Mr. Vandenberg, is it correct that DOI, 25 Department of the Interior is putting on two witnesses in CAPITOL REPORTERS (916) 923-5447 5514 1 Phase V? 2 MR. VANDENBERG: Yes, it is. 3 MR. HERRICK: And you're one of those witnesses, 4 correct? 5 MR. VANDENBERG: Yes, I am. 6 MR. HERRICK: I'm asking you if you know what is the 7 Department of Interior's position on implementing the 8 interior Delta standards that are set forth in the 1995 9 Water Quality Control Plan? 10 MR. VANDENBERG: I don't know. 11 MR. HERRICK: Are we going to have any witnesses that 12 make recommendations with regard to Phase V? 13 MR. BRANDT: You're going to have the witnesses that 14 have been identified and with the testimony that they've 15 presented. 16 MR. HERRICK: Mr. Vandenberg, isn't it correct that 17 the Bureau of Reclamation is one of the parties that 18 developed the South Delta Barrier Program, which includes 19 the three tidal barriers? 20 MR. VANDENBERG: Yes, they are. 21 MR. HERRICK: Are you appearing on behalf of the 22 Bureau of Reclamation to support that program that they 23 helped develop? 24 MR. VANDENBERG: No, I'm not. 25 MR. HERRICK: Will there be anybody appearing on CAPITOL REPORTERS (916) 923-5447 5515 1 behalf of the Bureau to support that program? 2 MR. VANDENBERG: I don't know. 3 MR. HERRICK: Are you aware that the San Joaquin 4 River Agreement -- I may have this wrong, is it the Letter 5 of Intent, the Letter of Support that was signed by the 6 various parties to the San Joaquin River Agreement, are you 7 aware that the Department of the Interior is a signatory to 8 that? 9 MR. VANDENBERG: No, I am not. 10 MR. HERRICK: Are you aware of whether or not the 11 Fish and Wildlife Service is a signatory to that? 12 MR. VANDENBERG: No, I'm not. 13 MR. HERRICK: Are you aware that the San Joaquin 14 River Agreement recognizes the potential need to have the 15 three interior Delta barriers as mitigation for the head of 16 Old River barrier? 17 MR. BRANDT: Objection. That misconstrues the 18 agreement. 19 MR. HERRICK: Well, if he disagrees with it he can -- 20 I'm not trying to trick him. 21 C.O. CAFFREY: You can answer the question, 22 Mr. Vandenberg, if you know the answer. 23 MR. VANDENBERG: I do not know the answer. 24 MR. HERRICK: Mr. Vandenberg, are you familiar with 25 the affects of both the State and Federal pumps on South CAPITOL REPORTERS (916) 923-5447 5516 1 Delta water levels and water quality? 2 MR. VANDENBERG: I'm aware that they allege that the 3 pumping causes a decrease in the water. 4 MR. HERRICK: And when you said "they" who were you 5 referring to? 6 MR. VANDENBERG: South Delta Water Agency. 7 MR. HERRICK: And when you say "allege," do you have 8 a reason to disagree with those statements? 9 MR. VANDENBERG: I said alleged, because that's what 10 was in the biological assessment when I reviewed it, that 11 they are alleging that water levels are dropping. So -- 12 are you saying do I have any reason to disagree with them? 13 MR. HERRICK: Yes. 14 MR. VANDENBERG: No, I don't. 15 MR. HERRICK: Do you have any information that 16 contradicts what you call the allegations by South Delta 17 with regard to water levels? 18 MR. BIRMINGHAM: I'm going to object to the question 19 on the grounds that it goes beyond the expertise of this 20 witness. 21 C.O. CAFFREY: Do you know the answer to the 22 question, Mr. Vandenberg? 23 MR. VANDENBERG: No, I don't. 24 C.O. CAFFREY: Go ahead, Mr. Herrick. 25 MR. HERRICK: Have you reviewed the DEIR/DIES for the CAPITOL REPORTERS (916) 923-5447 5517 1 Interior South Delta Program? 2 MR. VANDENBERG: No, I haven't. 3 MR. HERRICK: Does the Department of Interior have 4 any position on how to address the San Joaquin River 5 salinity problems which are part of the subject of this 6 phase? 7 MR. VANDENBERG: Can you repeat that? 8 MR. HERRICK: Does the Department of Interior have 9 any position on how to address the salinity problems on the 10 San Joaquin River which is one of the parts of this phase? 11 MR. BRANDT: Objection. Beyond the expertise of this 12 witness as to what the position of the Department is, what 13 the policy position is. 14 C.O. CAFFREY: Well, I think the question goes more 15 to: Does he know whether there is a position? And I'll 16 allow him to answer that. 17 MR. VANDENBERG: I don't know. 18 C.O. CAFFREY: All right, sir. 19 MR. HERRICK: Mr. Chairman, I've put on the overhead 20 a map of the Delta. I haven't marked it as an exhibit, I'm 21 just going to refer to it. I'll describe the points. If 22 we need to mark it with a number, I can certainly do that. 23 C.O. CAFFREY: Since there is variations on this map, 24 and if this one isn't already in the record somewhere, we 25 probably ought to mark it and treat it as a CAPITOL REPORTERS (916) 923-5447 5518 1 cross-examination exhibit. 2 MR. HERRICK: Let's mark this then as South Delta 3 Water Agency Exhibit Number 56. 4 C.O. CAFFREY: All right. 5 MR. HERRICK: And I'll just label it "Delta map." 6 C.O. CAFFREY: Okay, sir. 7 MR. HERRICK: Mr. Vandenberg, in your written 8 testimony you discussed the affects of the ISDP; is that 9 correct? 10 MR. VANDENBERG: That's correct. 11 MR. HERRICK: And did you make any analysis 12 differentiating between the affects of the three tidal 13 barriers as opposed to the affects that may result from the 14 other parts of ISDP, which include changes in the forebay, 15 dredging, increased export potential? 16 MR. VANDENBERG: Are you asking did I -- did I 17 separate the three tidal barriers out and make a 18 determination on just those? 19 MR. HERRICK: Yes. 20 MR. VANDENBERG: No, I did not. 21 MR. HERRICK: And is there a reason why you didn't do 22 that for the purposes of this proceeding? 23 MR. VANDENBERG: Because when I reviewed the project 24 as proposed, I don't review just one part of it, I review 25 the whole project. CAPITOL REPORTERS (916) 923-5447 5519 1 MR. HERRICK: I understand that. We're not here to 2 examine ISDP. We're here to examine the implementation of 3 interior Delta standards. And if you'll allow me to 4 summarize previous testimony: 5 The South Delta has recommended the three south 6 Delta tidal barriers as a method of doing that. I'm not 7 aware of anybody who recommended the other parts of ISDP. 8 Have you done any analysis of just the three tidal barriers 9 for the purpose of this hearing? 10 MR. VANDENBERG: As I answered before, I did not 11 separate out the three tidal barriers and make an 12 independent determination on that. I looked at ISDP as a 13 whole. 14 MR. HERRICK: As you sit here today would you be able 15 to separate the various alleged impacts from those two 16 different parts of ISDP? 17 MR. VANDENBERG: I don't understand the question. 18 You're asking am I able, for the purpose of this hearing, 19 to separate out the three tidal barriers from the overall 20 affects of ISDP? 21 MR. HERRICK: Yes. 22 MR. VANDENBERG: I haven't done an analysis of that. 23 MR. HERRICK: Okay. In part of your written 24 testimony you talk about the potential affects of the 25 project on X2; is that correct? CAPITOL REPORTERS (916) 923-5447 5520 1 MR. VANDENBERG: That's correct. 2 MR. HERRICK: Could you briefly explain what your 3 understanding of X2 means or is? 4 MR. VANDENBERG: X2 is a product of outflow and with 5 the freshwater combating the incoming salt water from the 6 sea you get a mixing of what is called an X2, or the null 7 zone where salinity is approximately two parts per 8 thousand. 9 MR. HERRICK: And if you have a certain amount of 10 inflow coming down the Sacramento River and a certain 11 amount of inflow coming down the San Joaquin River, and I 12 guess I'm ignoring the other tributaries for the moment, 13 but if you have a certain amount of inflow and a certain 14 amount of, I'll say, consumption in the Delta which would 15 be either, what, transportation -- evapotranspiration, 16 consumption by plants, the X2 is at a certain point, 17 because that's a net determination; is that correct? Is 18 that a good summary? 19 MR. VANDENBERG: That's right. 20 MR. HERRICK: What part of the Interior South Delta 21 Program decreases that net outflow? 22 MR. VANDENBERG: I'm sorry, can you repeat that? 23 MR. HERRICK: You concluded that X2 would be affected 24 and I assume by that you mean adversely affected; is that 25 correct? CAPITOL REPORTERS (916) 923-5447 5521 1 MR. VANDENBERG: Okay. You're kind of losing me 2 here. You just -- you said X2 will be affected. And 3 what -- my summary -- or my opinion on ISDP states that X2 4 will be affected. Is that what you're talking about? 5 MR. HERRICK: Yes. 6 MR. VANDENBERG: Yes. 7 MR. HERRICK: What part of the Interior South Delta 8 Program adversely affects X2? 9 MR. VANDENBERG: The pumping and the barrier 10 placement. 11 MR. HERRICK: How does the barrier affect the 12 criteria we discussed that determine X2, which is inflow, 13 consumptive use, evaporation, things like that? 14 MR. VANDENBERG: The CVP and the SWP export water out 15 of the South Delta such that the water levels, according to 16 the South Delta Water Agency, were lowered. Rather than 17 reducing those exports to raise those water levels, they 18 put barriers in four areas of the South Delta and maintain 19 their pumping. 20 By putting those barriers in the South Delta it 21 raised the water levels. And it allowed the South Delta 22 Water Agency to pump water that was not normally available. 23 So now with the CVP and SWP pumping what they're pumping in 24 addition to the water that wasn't available that is now 25 made available by the barriers, now they're pumping that. CAPITOL REPORTERS (916) 923-5447 5522 1 So you're getting -- you're getting more pumping 2 than what would have occurred had the export facilities 3 decreased their pumping to allow South Delta to pump their 4 water. So you're getting more water, so you're decreasing 5 outflow. So you're moving X2 upstream. 6 MR. HERRICK: So to try to separate those two, if the 7 export pumps increase pumping that will affect X2, correct? 8 MR. VANDENBERG: Sure. 9 MR. HERRICK: And it's your opinion that under the 10 ISDP there are potentially, I guess, increased exports from 11 the State pumps; is that correct? 12 MR. VANDENBERG: Under ISDP there is increased 13 exports from the State pump as well as from export -- or 14 diversions from South Delta. 15 MR. HERRICK: Is it your testimony that the barrier 16 program is going to increase South Delta consumption of 17 water if -- by agricultural users? 18 MR. BRANDT: Objection. Vague as to "consumption" 19 for this witness. There are many technical meanings for 20 consumption. This is a biological witness. 21 C.O. CAFFREY: Can you tell us what you mean by 22 "consumption" in that, Mr. Herrick? 23 MR. HERRICK: I thought we were just talking about 24 that. One of the factors in determing X2 is the 25 consumptive use of water in the Delta. Is that correct? CAPITOL REPORTERS (916) 923-5447 5523 1 MR. VANDENBERG: It is exports and diversions and 2 evaporation and that. 3 MR. HERRICK: Correct. I'm zeroing in now on 4 agricultural use. And by consumptive use I would say that 5 was the water taken and used by the plants, the net amount? 6 MR. VANDENBERG: By the export facilities? 7 MR. HERRICK: No. By the agricultural diverters in 8 the South Delta. 9 MR. VANDENBERG: Oh, the plants, do you mean -- 10 MR. HERRICK: Their crops. 11 MR. VANDENBERG: I was thinking export plant, pumping 12 facilities. 13 MR. HERRICK: No. We discussed exports. I want to 14 move now to the agricultural diverters. So do you 15 understand what I'm talking about what I talk about 16 consumptive use by agricultural diverters in the South 17 Delta? 18 MR. VANDENBERG: I understand what you talk about -- 19 what you mean when you're talking about plants, so if you 20 could repeat that question then. 21 MR. HERRICK: Is it your testimony that the South 22 Delta -- excuse me, that the Interim South Delta Program 23 results in an increase in agricultural consumptive use of 24 water in the Delta? 25 MR. VANDENBERG: ISDP allows South Delta to pump CAPITOL REPORTERS (916) 923-5447 5524 1 water that may not had been available to them absent the 2 barriers. 3 MR. HERRICK: And what do you base that on? 4 MR. VANDENBERG: Well, because they're -- the CVP and 5 the SWP is pumping water and lowering the water levels in 6 the South Delta. So they're putting the pumps it -- excuse 7 me, they're putting the barriers in. And now there's no 8 longer a problem with levels in the South Delta, so they're 9 pumping water. 10 MR. HERRICK: Again, I'm asking what you base that 11 on. What did you review when you developed your biological 12 opinion? 13 MR. VANDENBERG: I reviewed the biological 14 assessments provided by the Department of Water Resources. 15 MR. HERRICK: And did any of those assessments state 16 that there would be increased consumptive use of water by 17 agricultural diverters in the South Delta as a result of 18 the project? 19 MR. VANDENBERG: It showed that there would be an 20 incremental upstream shift in X2. 21 MR. HERRICK: Were you here during the testimony of 22 Mike Ford for DWR? 23 MR. VANDENBERG: Yes, I was here. 24 MR. HERRICK: Did you hear him say that the South 25 Delta Barrier Program has no affect on X2? CAPITOL REPORTERS (916) 923-5447 5525 1 MR. VANDENBERG: I heard him say that, but I 2 disagree. 3 MR. HERRICK: On what do you base that disagreement? 4 MR. VANDENBERG: Because the export facilities pump 5 water such that the levels in the South Delta are lower. 6 Rather than decreasing that pumping, they put barriers in 7 and maintain their pumping. The barriers elevate the water 8 in the South Delta allowing the South Delta Water Agencies 9 to now be able to divert water, which normally wouldn't 10 have been available to them absent the barriers. 11 So, now, you have the pumps, the export facilities 12 taking water and the South Delta taking water. And that's 13 increasing -- or that's decreasing outflow and moving the 14 position of the X2 upstream. 15 MR. HERRICK: I understand the aspect with regard to 16 the export pumps by the CVP and the SWP. So my questions 17 are limited -- are not including that aspect of the Interim 18 South Delta Program. 19 If DWR informs Fish and Wildlife Service that 20 there is no net consumption -- excuse me, there is no 21 increase in consumptive use of water by the agricultural 22 diverters, I'm trying to find out the basis for your 23 conclusion. You said that your conclusion is that they 24 pump more. I'm trying to find out the basis for that. Can 25 you explain that more fully? CAPITOL REPORTERS (916) 923-5447 5526 1 MR. VANDENBERG: I don't think I said they pump more, 2 South Delta pumps more. They're still -- they would still 3 be pumping what they would be pumping if the export 4 facilities decreased their pumping and made water 5 available. But they're not decreasing their pumping. As a 6 matter of fact, under ISDP they're proposing to increase 7 pumping. That's even going to further reduce outflow. 8 MR. HERRICK: Again, when you say "increase pumping," 9 you're talking about the projects; is that correct? 10 MR. VANDENBERG: That's correct. 11 MR. HERRICK: Okay. And I'm trying to limit my 12 questions to the agricultural diverters. 13 MR. VANDENBERG: But you can't just look at the 14 agricultural diversions without looking at the other 15 components of ISDP. 16 MR. HERRICK: Well, without being argumentative 17 except we're looking at the interior Delta standards here, 18 we're not looking at ISDP. We're trying to figure out 19 whether or not those interior Delta standards can be 20 implemented. 21 What is your understanding as to who might be 22 responsible for maintaining X2 in the Delta? 23 MR. BIRMINGHAM: Objection. Calls for a legal 24 conclusion. 25 C.O. CAFFREY: Do you know the answer to the CAPITOL REPORTERS (916) 923-5447 5527 1 question? Do you have an answer, Mr. Vandenberg? 2 MR. VANDENBERG: No. 3 C.O. CAFFREY: All right. 4 MR. HERRICK: Do you know whether or not the State 5 and Federal Projects are required to maintain X2 6 according -- pursuant to the 1995 Water Quality Control 7 Plan? 8 MR. VANDENBERG: I believe there's X2 standards in 9 that. 10 MR. HERRICK: And if there are X2 standards, would 11 you expect that implementation of the ISDP would change 12 those standards? 13 MR. BRANDT: Objection. Calls for a legal 14 conclusion. And I -- vague and beyond the expertise of 15 this witness. 16 MR. HERRICK: I can, certainly, start over, 17 Mr. Chairman. 18 C.O. CAFFREY: Go ahead, Mr. Herrick. I'm not sure 19 it calls for a legal conclusion. I'm not sure it's not an 20 engineering question. But in any case let me ask what I 21 have been asking: Did you understand the question, 22 Mr. Vandenberg? 23 MR. VANDENBERG: I would like him to repeat the 24 question. 25 C.O. CAFFREY: All right. Please, Mr. Herrick. CAPITOL REPORTERS (916) 923-5447 5528 1 MR. HERRICK: Certainly. One of the concerns in your 2 Draft Biological Opinion is movement of X2; is that 3 correct? 4 MR. VANDENBERG: That's correct, upstream. 5 MR. HERRICK: Upstream, adverse movement of X2. If 6 there was some sort of mechanism or legal requirement that 7 maintains X2, regardless of other criteria, would that 8 change your opinion as to whether or not the project would 9 affect X2? 10 MR. VANDENBERG: Are you asking my legal opinion on 11 legal requirements? 12 MR. HERRICK: Nope. I'm asking you whether or not 13 your biological opinion would change if there's some other 14 mechanism that is obligated, or in place to maintain X2 at 15 a certain spot? 16 MR. VANDENBERG: There are compliance points for X2 17 in the South Delta. Simply meeting those compliance points 18 under ISDP doesn't remove the adverse affects of ISDP. 19 MR. HERRICK: If X2 is maintained in one spot, 20 regardless of ISDP, why doesn't it affect your conclusion? 21 MR. VANDENBERG: I don't understand the question. 22 MR. HERRICK: Your concern is that X2 might move 23 upstream, correct? 24 MR. VANDENBERG: That's right. 25 MR. HERRICK: And if something is maintaining X2 at CAPITOL REPORTERS (916) 923-5447 5529 1 one point, regardless of ISDP or not, would that change 2 your concern whether or not the program would affect X2? 3 MR. VANDENBERG: There are compliance points in the 4 Delta -- or in the bay, rather, for X2 maintenance. If 5 those compliance points are met with ISDP on board, that's 6 not removing the adverse affects of ISDP. 7 MR. HERRICK: Well, we're limiting our question here 8 to the adverse affect that you allege, which is the 9 movement of the X2 though. That's what I'm asking the 10 question on. 11 If some other mechanism ensures the location of 12 X2, is your concern regarding ISDP's affect on X2 changed? 13 MR. VANDENBERG: If some other mechanism ensures that 14 placement of X2 is maintained at the current compliance 15 points, and ISDP or some component of ISDP is implemented, 16 are you asking would that change my -- my opinion on X2? 17 MR. HERRICK: Would it change your concern about the 18 movement of X2? 19 MR. VANDENBERG: I'm having trouble understanding 20 what he's saying here. I'm not trying to be argumentative, 21 I'm just trying to understand the question. 22 MEMBER BROWN: Mr. Chairman? 23 C.O. CAFFREY: Aren't you just basically asking if 24 there's some way to ensure, some mechanism, that X2 doesn't 25 move, is there some concern? CAPITOL REPORTERS (916) 923-5447 5530 1 MR. VANDENBERG: It's not just so much that X2 2 doesn't move with ISDP, it's that you have a compliance 3 point. And if that compliance point is met and you bring 4 X2, and this compliance point doesn't move, there's still a 5 concern, because ISDP was never a part of the negotiations 6 that set this requirement for X2. 7 C.O. STUBCHAER: Mr. Chairman? 8 C.O. CAFFREY: Yes, Mr. Stubchaer. 9 C.O. STUBCHAER: Question was limited to the affect 10 of the ISDP on X2 treated in isolation. 11 MEMBER BROWN: Mr. Chairman? 12 C.O. CAFFREY: Mr. Brown. 13 MEMBER BROWN: I understand the question. And I'd 14 like to hear the answer to it if he has one. 15 MR. BRANDT: Excuse me, sorry. 16 MEMBER BROWN: I understand the question. And I'd 17 like to hear the answer to it if there is one. 18 MR. VANDENBERG: Can I talk with Alf for a minute? 19 MR. BRANDT: I'll just say -- I mean he can answer it 20 as well. He's not an expert on X2 and how the 21 hydrodynamics work and so if he can answer. 22 MR. VANDENBERG: The question as I'm understanding it 23 is that we have X2 at some compliance point and there's 24 some mechanism assuring that that compliance point is being 25 met. Am I right so far? CAPITOL REPORTERS (916) 923-5447 5531 1 MR. HERRICK: That's the hypothetical I'm putting to 2 you, yes. 3 MR. VANDENBERG: Okay. Now, you're asking if there's 4 some mechanism that can maintain this placement of X2, does 5 X2 now -- or am I no longer concerned with X2 as far as 6 pumping by South Delta? 7 MR. HERRICK: As far as your biological opinion with 8 regard to the affects in the South Delta. 9 MR. VANDENBERG: I would still be concerned with X2. 10 MR. HERRICK: And why would that be? 11 MR. VANDENBERG: Because those compliance points that 12 were established didn't take any component of ISDP into 13 consideration. So just simply meeting that compliance 14 point is not going far enough to remove the affects of 15 export pumping, or of pumping by South Delta, or any other 16 component of ISDP. So I would still have a concern with 17 where X2 is. 18 MR. HERRICK: So if something else maintains X2 where 19 it's suppose to be, you still have concerns with regard to 20 ISDP's affect on X2? 21 MR. VANDENBERG: What I'm saying is -- currently -- 22 okay. Absent any component of ISDP, you have a compliance 23 point of X2. And if that compliance point is being met, 24 then I would say everything is going fine. 25 You bring ISDP on top of that, what you have, CAPITOL REPORTERS (916) 923-5447 5532 1 essentially, is you have the compliance points that set the 2 baseline against what is currently happening. You add ISDP 3 on top of that and now we have an increment of difference 4 or impacts that ISDP is not -- the affects of ISDP are not 5 being addressed by holding the compliance point here. We 6 might have to take this compliance point and then move it 7 to equal it or exceed it in order for there not to a 8 concern with X2. 9 MR. HERRICK: The assumption that we're using in this 10 hypothetical question to you is that X2 is staying where 11 it's suppose to be. It's maintained. We're not getting 12 into how that's maintained. We're just -- 13 MR. VANDENBERG: If it's maintained -- I'm sorry, if 14 it's maintained at the current compliance point, I'd still 15 have an issue with that. 16 MR. HERRICK: And that issue is? 17 MR. VANDENBERG: That it's not offsetting that -- the 18 impacts of South Delta are not being offset by maintaining 19 that compliance point where it currently is. 20 MR. HERRICK: But if the compliance point is 21 maintained, wouldn't by definition there be no impacts of 22 the ISDP on X2? 23 MR. VANDENBERG: If you had no ISDP. If you had the 24 compliance point and ISDP, you have to reevaluate the 25 baseline. We have a current baseline right now that CAPITOL REPORTERS (916) 923-5447 5533 1 establishs X2 at compliance points. And none of those 2 negotiations that set the current baseline included ISDP. 3 You bring ISDP into the picture, you're going to 4 have to reevaluate the baseline. Maintaining X2 at that 5 current baseline with ISDP is not offsetting the affects of 6 ISDP. There would still be a concern. 7 MR. HERRICK: What are your biological concerns with 8 regard to somebody else maintaining X2? 9 MR. VANDENBERG: What are my biological concerns with 10 someone else maintaining X2? What do you mean "someone 11 else maintaining X2"? 12 MR. HERRICK: Perhaps, you can describe what you mean 13 by the baseline for X2 being something that was implemented 14 prior to ISDP. 15 MR. VANDENBERG: We had established a baseline for 16 the placement of the two parts per thousand isohaline as 17 part of the EPA water quality criteria, biological opinion, 18 essentially, sets it at the confluence at Chipps Island at 19 Roe Island. The Delta smelt biological opinion on the 20 operation and criteria of the pumping facilities helps to 21 maintain that isohaline placement. 22 If now you bring ISDP into the picture, meeting 23 these compliance points solely as currently exists isn't 24 enough. Had ISDP been a part of those negotiations, rather 25 than having the placement here, we might have had it at CAPITOL REPORTERS (916) 923-5447 5534 1 some increment downstream to offset the impacts of ISDP. 2 MR. HERRICK: So with the South Delta -- excuse me, 3 with the ISDP you believe that X2 may need to be changed? 4 MR. VANDENBERG: I think that's something that 5 definitely needs to be looked at. 6 MR. HERRICK: What protection is provided by the 7 current X2 requirements, what protection is provided to 8 Delta smelt? 9 MR. VANDENBERG: It provides sufficient outflow to 10 maintain low-salinity habitat for rearing. And it 11 doesn't -- I'll just say that. 12 MR. HERRICK: How does that protection change if X2 13 is maintained at the same place and ISDP is adopted? 14 MR. VANDENBERG: Because under ISDP they're 15 proposing -- or the Department and the Bureau are proposing 16 to -- well, the State water pumps is proposing to export 17 more water. Because X2 is a product of outflow, if you're 18 exporting more water and reducing the amount that goes to 19 outflow, you're going to change that -- that placement of 20 X2. X -- go ahead. 21 MR. HERRICK: But, again, the hypothetical is we're 22 maintaining X2. 23 MR. VANDENBERG: You're maintaining X2 at a 24 compliance point that currently exists without -- without 25 ISDP. Now, you're bringing in adverse affects caused by CAPITOL REPORTERS (916) 923-5447 5535 1 ISDP and you're not providing any -- any assurance, or 2 any -- any additional -- well, let me start over. 3 Maintaining the X2 at its current compliance 4 points will not adversely -- or will not offset the impacts 5 of ISDP. 6 MR. HERRICK: Okay. But right now we're only talking 7 about the adverse affects of ISDP on X2. Okay? 8 MR. VANDENBERG: Okay. 9 MR. HERRICK: So if X2 is maintained and I'll -- and 10 this will be the last time, I'm sorry, Mr. Chairman and 11 Board Members. If we maintain that X2, do your concerns 12 with regard to ISDP's affect on X2 change? 13 MR. VANDENBERG: No, they don't. I still have 14 concerns with X2 and ISDP. 15 MR. HERRICK: Okay. Could you refer to any 16 documentation or data provided to you which leads you to 17 conclude that there will be more consumptive use by 18 agricultural diverters in the South Delta under ISDP than 19 without? 20 MR. VANDENBERG: In reviewing information provided by 21 the Department of Water Resources, there was information in 22 there that shows an incremental upstream shift in the X2 23 placement under ISDP. 24 MR. HERRICK: Again, I don't mean to be unfair, I'm 25 trying to narrow that down a little bit since I believe you CAPITOL REPORTERS (916) 923-5447 5536 1 and I both agreed earlier that DWR's witness said that 2 there was no affect on X2. 3 MR. VANDENBERG: Is there a question? 4 MR. HERRICK: Yeah. Can you narrow that down a 5 little more? If DWR told us there isn't, I'm trying to 6 locate -- 7 MR. VANDENBERG: The document that contains that? 8 MR. HERRICK: Yes. 9 MR. VANDENBERG: I have the biological -- I'm -- let 10 me take a minute here. 11 MR. HERRICK: Sure. 12 MR. VANDENBERG: I believe it's the comprehensive 13 monitoring report for the proposed -- the Interim South 14 Delta Program results of modeling runs to evaluate the 15 impacts of different scenarios on Delta channels, flow, 16 stage and velocity, A, B and C series. Results of modeling 17 runs to compare the ISDP preferred alternative to the 18 no-action alternative 71-year hydrology, 1922 to 1992. 19 MR. HERRICK: And you believe those documents contain 20 some sort of information regarding increase of South Delta 21 agricultural consumptive use? 22 MR. VANDENBERG: These documents show that with ISDP 23 there was an incremental upstream shift in the X2. 24 MR. HERRICK: Okay. That's a different question 25 though. I'm asking with regard to agricultural diverters. CAPITOL REPORTERS (916) 923-5447 5537 1 There could be a shift if the State and Federal Projects 2 increase exports, we've established that. 3 But I'm asking you whether or not that data led 4 you to conclude that the agricultural diverters consume 5 more water? 6 MR. BIRMINGHAM: I'm going to object to the question 7 on the ground it's compound. 8 MR. HERRICK: There was only one question involved, 9 Mr. Chairman. It was a long question but that doesn't make 10 it compound. 11 MR. BIRMINGHAM: Actually, there was two questions. 12 He asked him to respond to: Have we established something? 13 And then an affect. There was two questions. 14 C.O. CAFFREY: Well, I don't remember if there was 15 two questions or one question, but I do remember that 16 they're trying to get to the question of the affects of ag. 17 So if you'll, as a courtesy to the Board, Mr. Herrick, 18 could you sort of clarify matters for me? 19 MR. HERRICK: Certainly. 20 C.O. CAFFREY: Thank you. 21 MR. HERRICK: Mr. Vandenberg, I understood you to say 22 that the documents that you described earlier show with and 23 without project affects of an incremental change in X2; is 24 that correct? 25 MR. VANDENBERG: That's correct. CAPITOL REPORTERS (916) 923-5447 5538 1 MR. HERRICK: One possible method of changing X2 2 would be increased export at the State and/or Federal 3 pumps, correct? 4 MR. VANDENBERG: That's one possibility. 5 MR. HERRICK: Okay. Now, I'm removing that from our 6 next question, the change in export to the pumps. I'm 7 moving now to the barrier part. 8 I'm trying to find out if it's your testimony that 9 those same documents provide you with information that 10 leads you to conclude that the ISDP results in an increased 11 consumptive use of water by South Delta agricultural 12 diverters? 13 MR. VANDENBERG: The documents didn't specifically 14 state that. 15 MR. HERRICK: Is it correct to describe your job 16 description now in sort of a Delta smelt group? I mean I 17 don't really know how fish and wildlife work? 18 MR. VANDENBERG: I'm a fish and wildlife biologist. 19 MR. HERRICK: And is there a group of people at Fish 20 and Wildlife Service that deals with this Delta smelt issue 21 in the South Delta? 22 MR. VANDENBERG: I'm in the Coast Bay Delta branch. 23 MR. HERRICK: And are there other people who work 24 with you in that endeavor? 25 MR. VANDENBERG: I work with others in the office. CAPITOL REPORTERS (916) 923-5447 5539 1 MR. HERRICK: Okay. And, again, I'm trying to limit 2 this to Delta smelt, who else within your office does that 3 work with you? 4 MR. VANDENBERG: Works on Delta smelt issues? 5 MR. HERRICK: Yes. 6 MR. VANDENBERG: There's Stephanie Brady, Mike 7 Thabault. I've worked with Mike Fris with Pat Leonard, 8 with Kay Goude, with Wayne White, Steve Hertzel. I mean 9 there's quite a few people I work with. 10 MR. HERRICK: And what ongoing project, if any, are 11 you involved with in that group regarding Delta smelt? 12 MR. VANDENBERG: I'm involved in the ISDP opinion. 13 The -- well, I guess the temporary barrier opinion, it's 14 kind of been concluded, but there's still monitoring 15 reports that I'm reviewing as those come in. 16 MR. HERRICK: Are there any, I'll label them, 17 investigative projects that you're involved in which are 18 seeking out new information with regard to Delta smelt, 19 studies, general monitoring, I'm just coming up with a 20 potential list? 21 MR. VANDENBERG: There's the IEP that's doing 22 monitoring. And I'm using the worldwide web to access that 23 information. 24 MR. HERRICK: And does that include -- I'm just 25 trying to get to the heart of the effort here, does that CAPITOL REPORTERS (916) 923-5447 5540 1 include sampling, monitoring of take, various things like 2 that in the Delta? 3 MR. VANDENBERG: The export facilities monitor the 4 take that -- the take of Delta smelt that they have. 5 There's the realtime monitoring program and the Fall 6 Midwater Trawl Program that shows the current distribution 7 of the species. 8 MR. HERRICK: Are some of your efforts directed 9 towards trying to determine how and where -- where the 10 smelt will be at any particular time? 11 MR. VANDENBERG: It's -- I don't -- there's not 12 really any model for Delta smelt that will predict where 13 they'll be. I mean it was unusual to find so many in the 14 Napa River this year. We didn't expect that. The 15 modeling, by the time the results are worked up, show us 16 where Delta smelt were. 17 MR. HERRICK: But you have -- 18 MR. VANDENBERG: And there's some lag time in there. 19 MR. HERRICK: But you say you found them in the Napa 20 River this year. Is there some sort of program that's 21 sampling Delta-wide area-wide timetable so you can 22 determine whether or not smelt are present in any area? 23 MR. VANDENBERG: There is the Fall Midwater Trawl 24 that's currently going on. That's showing where adults 25 are, but there's not a station in the South Delta. So the CAPITOL REPORTERS (916) 923-5447 5541 1 best sampling that we have at the South Delta, 2 unfortunately, is the export facility. 3 MR. HERRICK: And could you explain to us how this 4 fall trawl you called it, where do they do that, how long 5 do they do that? 6 MR. VANDENBERG: The Fall Midwater Trawl is done 7 every year in September, October, November and December. 8 And they use the same gear type. They trawl a net behind 9 the boat for a specific time, the same time every time. 10 And, then, they collect the sample and see what's in it. 11 MR. HERRICK: And where do they do this? How do they 12 decide what channels to -- 13 MR. VANDENBERG: They have -- 14 MR. BIRMINGHAM: Objection. Compound. There was two 15 questions: Where was it done? And how do they decide? 16 C.O. CAFFREY: Can you make it two questions, 17 Mr. Herrick? 18 MR. HERRICK: Where do they do this? 19 MR. VANDENBERG: In the Delta. There's -- 20 MR. HERRICK: That's all. 21 C.O. CAFFREY: Now, we're getting down to specifics. 22 MR. VANDENBERG: They have specific sampling 23 locations. 24 MR. HERRICK: Can you tell us where those locations 25 are? CAPITOL REPORTERS (916) 923-5447 5542 1 MR. VANDENBERG: They're spread throughout the Delta. 2 MR. HERRICK: And do those include South Delta areas? 3 MR. VANDENBERG: No, they do not. 4 MR. HERRICK: They do not include South Delta? 5 MR. VANDENBERG: No, they don't. 6 MR. HERRICK: Is there any program you have that is 7 attempting to sample, locate and identify smelt in the 8 South Delta? 9 MR. VANDENBERG: The CVP and the SWP pumping plants 10 currently sample. I guess you can say, well, they entrain 11 the fish. And that information is used to see species in 12 the Delta. 13 MR. HERRICK: I'm not trying to beat a dead horse 14 here, but is there no sampling done, then, in Old River, 15 Middle River, San Joaquin River and -- in those areas in 16 the South Delta other than at the pumps? 17 MR. VANDENBERG: There's some sampling stations in 18 the San Joaquin and Old River and Middle River, but they're 19 at the very lower ends towards the Central Delta. There's 20 none by the head of Old River or by the San Joaquin/Old 21 River split. 22 MR. HERRICK: And, again, we've got South Delta 56, 23 the Delta map up, on the overhead. Could you for the 24 record describe where the sampling stations are to the best 25 of your -- CAPITOL REPORTERS (916) 923-5447 5543 1 MR. VANDENBERG: Can I go up there? 2 MR. HERRICK: Certainly. 3 MR. VANDENBERG: I would say that the majority of the 4 sampling sites are here, going that way with nothing -- 5 going from, like, Lower Roberts Island out towards the 6 Delta with nothing in this area where the barriers would 7 be. 8 MR. HERRICK: Okay. And for the record let me 9 describe that. When you said "towards the Delta from Lower 10 Roberts Island," that's, generally, northwest direction; 11 would that be correct? 12 MR. VANDENBERG: Towards the bay. 13 MR. HERRICK: And, then, when you said the area with 14 the barriers, you were going sort of south of Lower Roberts 15 Island; is that correct? 16 MR. VANDENBERG: That's correct. 17 MR. HERRICK: Okay. One of the prior questioners 18 touched upon this: In your evaluation of the ISDP, did you 19 talk with any parties responsible for evaluating effects on 20 salmon? 21 MR. VANDENBERG: There were people in the -- in the 22 negotiations, in the consultations that dealt with salmon. 23 MR. HERRICK: And would you agree that one of the 24 purposes of the head of the Old River barrier is to help 25 outmigrating salmon smolts, as a general statement, but CAPITOL REPORTERS (916) 923-5447 5544 1 isn't that one of the purposes of that head of Old River 2 barrier? 3 MR. VANDENBERG: That's correct. 4 MR. HERRICK: And is it your understanding that the 5 affect of the head of Old River barrier on those 6 outmigrating salmon smolts is positive? In other words, it 7 leads to an increase in the survivability? 8 MR. VANDENBERG: Well, I'm not a salmon expert. My 9 expertise is in Delta smelt. 10 C.O. CAFFREY: Excuse me. I'm sorry, I'm 11 interrupting your answer, Mr. Vandenberg. But this is 12 something that is troubling me a little bit and not to 13 berate you or express any bias. I really am confused and 14 concerned -- and maybe I can interrupt your 15 cross-examination by asking a couple questions. 16 It strikes me that -- let me ask it this way, 17 again, not to lead you or berate you: But is it possible 18 to be an expert on certain species of fish and not be very 19 knowledgeable about the other species that share the same 20 habitat? 21 And the reason I ask that is, because I'd have to 22 conclude that that's a pretty difficult thing for you to 23 maintain. And that, therefore, you must have some 24 expertise about salmon. 25 MR. VANDENBERG: The life histories of the species CAPITOL REPORTERS (916) 923-5447 5545 1 are very different. I concentrate on the Delta smelt and 2 its life history. The spawning, for example, of the Delta 3 smelt is very different from that of the salmon. There are 4 individuals that concentrate their efforts on the salmon. 5 They're studying the salmon. I'm doing the smelt. We get 6 together and we talk. I pick up some information on that, 7 but I'm not an expert on salmon. 8 C.O. CAFFREY: Maybe I should have waited until the 9 end when it's the Board Members' turn to cross-examine, but 10 I do want you to know as a witness, and everybody to know, 11 the most difficult role of a Board Member when deciding is 12 what weight to give evidence. And I'm concerned that I 13 think you answered that you weren't sure whether salmon 14 eat -- I don't know if it is splittail, or smelt, or maybe 15 it was both? 16 MR. VANDENBERG: Smelt. 17 C.O. CAFFREY: Smelt. And at one point in your 18 testimony, it might have been under cross-examination, you 19 indicated that -- at least, I interpreted the answer. 20 These aren't the exact words, but that basically the body 21 of knowledge about splittail is -- maybe it was smelt, 22 again, is complete. And I thought I heard you say later 23 you're never really sure where the smelt are. 24 MR. VANDENBERG: Well -- 25 C.O. CAFFREY: And that seems to be in great conflict CAPITOL REPORTERS (916) 923-5447 5546 1 and causes me some concern about how to interpret your 2 testimony. And, again, I'm -- 3 MEMBER BROWN: Mr. Chairman -- 4 C.O. CAFFREY: -- maybe I should have waited until 5 the end of this and it's usually not my comportment to ask 6 a lot of questions, but more or less just to preside over 7 the hearing, but this is concerning me. 8 Mr. Brown? 9 MEMBER BROWN: For the record, Mr. Chairman, I share 10 those same concerns. 11 C.O. CAFFREY: Thank you, sir. I just tell you that, 12 Mr. Vandenberg, I know you're here in good faith, but, 13 perhaps, as you proceed with your answers, you know, you 14 should be aware that if we're not confused, we're certainly 15 concerned. 16 Go ahead, Mr. Herrick. 17 MR. HERRICK: Thank you, Mr. Chairman -- 18 MR. VANDENBERG: If I can just for a moment, there 19 is -- there is some biology of the Delta smelt that I know. 20 I, certainly, do not know all of it, but I, certainly, do 21 need to learn more as I do -- as I think everybody does. I 22 mean we need to constantly be learning, you know, what this 23 critter -- what this critter is all about. There's more 24 information that I need. So -- 25 C.O. CAFFREY: All right. Thank you, sir. CAPITOL REPORTERS (916) 923-5447 5547 1 Please, proceed, Mr. Herrick. And I apologize for 2 interrupting your train of thought. 3 MR. HERRICK: I'm always off on a sidetrack anyways. 4 Mr. Vandenberg, I'm going to set up a hypothetical 5 here. Feel free to disagree with it, but I want to kind of 6 follow through on a certain train of thought. 7 The hypothetical is: If a certain project, and 8 let's limit that to the head of Old River barrier, is 9 thought to result in benefits to salmon, which is an 10 endangered species; but at the same time it is also thought 11 by different people to have adverse affects on a threatened 12 species, say Delta smelt, how does the decision get made 13 whether or not to write a jeopardy opinion if, in fact, one 14 is written? 15 MR. VANDENBERG: In writing a jeopardy opinion, 16 I'm -- we have -- my jeopardy opinion that I wrote is on 17 Delta smelt. I'm limiting my expertise to the Delta smelt. 18 in writing an opinion. Although the head of Old River 19 barrier may benefit some other species, what I'm looking at 20 is how does that benefit, or adversely affect, or 21 jeopardize the Delta smelt? 22 Because by the very nature of these species having 23 very different life histories, it's not -- it's not 24 difficult to imagine how something could benefit one 25 species while not benefit the other. CAPITOL REPORTERS (916) 923-5447 5548 1 MR. HERRICK: Is there some sort of internal 2 mechanism in Fish and Wildlife Service that takes that 3 tension into play in developing biological opinions? 4 MR. VANDENBERG: When I was generating the biological 5 opinion for the Interim South Delta I was consulting on the 6 Delta smelt. And so that's what I was limiting my 7 expertise to. 8 MR. HERRICK: Is there somebody who's consulting on 9 the Interim South Delta Program with regard to salmon? 10 MR. VANDENBERG: The National Marine Fishery Services 11 would be doing that. They handle the anadromous species. 12 MR. HERRICK: Are there any circumstances under which 13 you would compare benefits to one species as opposed to 14 detriments to another species? 15 MR. VANDENBERG: Are you asking in generating my 16 opinion would I try to balance the two species? 17 MR. HERRICK: Yes. 18 MR. VANDENBERG: I look at -- because the Department 19 consulted -- or the Bureau consulted on the Delta smelt, 20 that's what I'm looking at is the Delta smelt. 21 MR. HERRICK: Let's just say the Bureau says, boy, we 22 really want this project because it helps salmon. And you 23 concluded that this project has potential adverse affects 24 on smelt. Would that lead you to try to come up with a 25 recommendation in order to lessen the affects on Delta CAPITOL REPORTERS (916) 923-5447 5549 1 smelt to an acceptable degree? 2 MR. VANDENBERG: In the opinion we -- I provided a 3 reasonable and prudent alternative that, essentially, 4 removes the jeopardizing affects of ISDP. I required that 5 the project be looked at under CalFed. Because under 6 CalFed it seeks four components. And one of those 7 components is ecosystem restoration. If the impacts, or 8 the jeopardizing affects of ISDP can be offset, then that's 9 great for the species. That's what is needed. 10 MR. HERRICK: So through CalFed, or some other 11 process actions are taken to help Delta smelt, are you 12 saying that you would, then, potentially remove your 13 jeopardy opinion, or revoke it, or -- 14 MR. VANDENBERG: If actions under CalFed are taken to 15 remove the jeopardizing affects, then, yes. 16 MR. HERRICK: So it's safe to say at this point that 17 there are ongoing programs that may cure what you 18 believe -- that may address what you believe are the 19 potential adverse affects of ISDP? 20 MR. VANDENBERG: There are programs in CalFed that 21 are doing that. 22 MR. HERRICK: So are you withholding your final 23 biological opinion until those other processes are 24 completed? 25 MR. VANDENBERG: We have a biological opinion that at CAPITOL REPORTERS (916) 923-5447 5550 1 sometime it's going to have to go forward. What we're 2 waiting for is the for the Department and the Bureau to 3 decide what they're going to do. Are they going to go 4 ahead with the project -- or are they going to go ahead 5 with the project as proposed, in which case we'll issue the 6 jeopardy opinion? Or are they going to do some sort of 7 modifications to that project to minimize the jeopardy and 8 affects? That's kind what we're waiting on, for them to do 9 that. 10 MR. HERRICK: And that's what I wanted to get at. In 11 response to questions by another attorney you seemed to 12 indicate that the consultation period was over. Was that a 13 misimpression on my part? 14 MR. VANDENBERG: Yes. I misspoke on that. The 15 formal consultation is still occurring. 16 MR. HERRICK: So for any one of the potential adverse 17 affects, I'll say, DWR, USBR and Fish and Wildlife Service 18 are still trying to figure out acceptable ways to minimize 19 those? 20 MR. VANDENBERG: Well, I wouldn't include the Service 21 in that, because we've provided an alternative to do that. 22 We're still waiting on the Department and the Bureau to 23 come up with to minimize those jeopardizing affects. 24 MR. HERRICK: And we heard earlier that DWR is making 25 recommendations, or potential changes to the operation of CAPITOL REPORTERS (916) 923-5447 5551 1 the three tidal barriers. Have you been able to review 2 their proposed changes yet? 3 MR. VANDENBERG: I have not seen those changes. 4 MR. HERRICK: Real briefly, could you describe the 5 life stages of the Delta smelt, please? 6 MR. VANDENBERG: Egg, larvae, juvenile, sub-adult and 7 adult. 8 MR. HERRICK: And could you explain how the smelt 9 migrates back and forth because of those life stages, or 10 maybe in spite of them? I don't know, I just don't 11 understand the distribution of the smelt. 12 MR. VANDENBERG: We'll start with an adult, in the -- 13 in the bay. Let's put him in good habitat at Chipps 14 Island. Depending on, perhaps, photo period, or freshwater 15 inflow, or temperature -- freshwater inflow into the bay, 16 depending on freshwater coming down into the bay might 17 initiate the spawning migration. 18 And what they'll do is they swim up the San 19 Joaquin -- or up the Sacramento River into areas Cache 20 Slough, Lindsey Slough. They might come into Beaver Slough 21 and Hog Slough. They've even come down into the San 22 Joaquin River, essentially, seeking out habitat and 23 freshwater conditions to initiate their spawning. 24 Once they spawn, the eggs attach to substraights. 25 And in about 9 to 14 days those eggs hatch. And the larvae CAPITOL REPORTERS (916) 923-5447 5552 1 at this time are pretty much -- or they are free floating 2 and they just go with the flow. And so what they'll do is 3 they'll head down the San Joaquin River. And if the pumps 4 are going, they'll turn and get entrained in the pumps. 5 Some of those may manage to get back out in the bay where 6 there's -- where they will associate with the low-salinity 7 habitat. 8 MR. HERRICK: You said -- 9 MR. VANDENBERG: Go ahead. 10 MR. HERRICK: Did you say the larvae are free -- 11 excuse me, the larvae go with the flow? Is that what you 12 said? 13 MR. VANDENBERG: Essentially, they're free flowing. 14 MR. HERRICK: And so, generally, they just follow the 15 flow in the Delta as may exist at that time? 16 MR. VANDENBERG: They go where the flow is going. 17 MR. HERRICK: With regards to the South Delta, what 18 sort of optimum habitat do the Delta smelt need in their 19 various life stages? 20 MR. VANDENBERG: Well, they need the shallow-water 21 habitat. They need the vegetation upon which to attach 22 their eggs. They need vegetation to -- that provides food 23 sources. They need the vegetation to hide in from 24 predation. 25 MR. HERRICK: When you say "shallow-water habitat," CAPITOL REPORTERS (916) 923-5447 5553 1 are you referring to those areas where the water meets, 2 I'll say, the levee of any channel, or are you actually 3 including the interior part of the channel itself? 4 MR. VANDENBERG: I'm including both where the water 5 comes in contact with the bank and throughout the channel. 6 MR. HERRICK: Okay. Do we know whether or not Delta 7 smelt stay towards the -- towards the banks, or towards the 8 center of the channel, or do we know? 9 MR. VANDENBERG: I think they probably -- they do 10 associate equally with the banks and the center, where the 11 vegetation is. 12 MR. HERRICK: Now, is there some sort of -- I don't 13 mean to get too official here, is there some sort of 14 definition of shallow-water habitat that you use as a guide 15 in determining whether or not they're sufficiently 16 available? 17 MR. VANDENBERG: Shallow-water habitat is defined as 18 three meters at mean low, low water. 19 MR. HERRICK: And, again, without trying to test your 20 memory here, where is that defined? I mean what sets forth 21 that definition? 22 MR. VANDENBERG: What do you mean what sets it forth? 23 MR. HERRICK: Is that an internal Fish and Wildlife 24 Service conclusion, or is it some sort of number the 25 scientific community agrees on, or something else? CAPITOL REPORTERS (916) 923-5447 5554 1 MR. VANDENBERG: It's both the Service policy and the 2 scientific community. 3 MR. HERRICK: Okay. At what point is the depth 4 adverse to smelt in the South Delta? 5 MR. VANDENBERG: I don't know that there's an adverse 6 affect to the Delta smelt from the depth. 7 MR. HERRICK: Okay. And without doing the 8 ridiculous, if you have 12 instead of 9 feet, is that worse 9 for smelt? 10 MR. VANDENBERG: I wouldn't say that the depth 11 requirement is worse or better. 12 MR. HERRICK: If you have -- again, to go to the 13 extreme end, if you have 2 inches instead of 3 meters, is 14 that adverse? 15 MR. VANDENBERG: We're talking about a pretty small 16 fish that can utilize shallow habitat. If it has 17 vegetation and it can -- and it can get in there, I would 18 say that's fine. I guess the extent to which a depth would 19 be a problem is if there's no water there. 20 MR. HERRICK: Okay. So there's a pretty wide range, 21 then from having -- as long as there's water in the channel 22 it can go up pretty deep and still be good habitat? 23 MR. VANDENBERG: There's -- what do you mean by "good 24 habitat"? I mean I think I see what you're saying is that 25 you can start shallow and go deep and at what point does it CAPITOL REPORTERS (916) 923-5447 5555 1 get good or bad, I don't think there's -- I don't think it 2 gets bad. 3 MR. HERRICK: Okay. One of the conclusions in your 4 written testimony is that the ISDP adversely affects water 5 depth; is that correct? 6 MR. VANDENBERG: Yes. 7 MR. HERRICK: And I believe you, then, concluded by 8 adversely affecting water depth you're then adversely 9 affecting Delta smelt; is that correct? 10 MR. VANDENBERG: Uh-huh. Yes. 11 MR. HERRICK: I'll go "what" and "where." Let's 12 start with what. What water depth are you talking about 13 that will occur with the barrier program that is adverse to 14 Delta smelt? 15 MR. VANDENBERG: With respect to the South Delta I 16 guess -- well, withdrawing water out of the Delta that may 17 tend to lower, or, essentially, even dry up areas in the 18 Central Delta, or South Delta and that, of course, would be 19 an affect. 20 MR. HERRICK: And when you say "withdrawing water" 21 what are you referring to? 22 MR. VANDENBERG: Exporting the water. 23 MR. HERRICK: So if the export of water from the area 24 lowers the stream levels, or a stream level down to, I'll 25 say, zero, that's the adverse affect that you're talking CAPITOL REPORTERS (916) 923-5447 5556 1 about? 2 MR. VANDENBERG: That would be an adverse affect. 3 MR. HERRICK: Are there other adverse affects that 4 you're referring to when you concluded that the program 5 causes changes in water depth that, essentially, will harm 6 Delta smelt? 7 MR. VANDENBERG: No. 8 MR. HERRICK: Okay. Now, that was "what." Let's go 9 to where, and it may not be possible to specify this. 10 In your opinion where might these insufficient 11 water depths occur as a result of the Interim South Delta 12 Program? And, again, there is a pointer if you want to use 13 that to describe where for the written record, please. 14 MR. VANDENBERG: It would be concentrated to the 15 South Delta. 16 MR. HERRICK: Okay. Do you have any more specific 17 info on that, or just generally in the area? 18 MR. VANDENBERG: Generally, in the area, Middle 19 River, Old River. 20 MR. HERRICK: Were you here for Phase I of these 21 proceedings? 22 MR. VANDENBERG: No, I was not. 23 MR. HERRICK: Were you here for Phase II? 24 MR. VANDENBERG: No. 25 MR. HERRICK: Are you aware of testimony given by CAPITOL REPORTERS (916) 923-5447 5557 1 South Delta Water Agency's witnesses with regards to the 2 channels of the South Delta running dry in the absence of 3 the barrier project? 4 MR. VANDENBERG: No, I am not. 5 MR. HERRICK: In your -- in your work on Delta smelt, 6 have you not been informed of dry water channels in the 7 South Delta over the past, say, ten years? 8 MR. VANDENBERG: I have been informed in some 9 meetings that I'm going to that -- that the channels are 10 silting in, are currently silting in. 11 MR. HERRICK: Okay. But are you -- have you been -- 12 when I say ten years, that's not fair. You've been working 13 on Delta issues, what, since, was it '92 from your -- 14 MR. VANDENBERG: That's correct. 15 MR. HERRICK: You've not been made aware of instances 16 in the last few years where South Delta channels run dry 17 without the three tidal barriers? 18 MR. VANDENBERG: Without the three tidal barriers, I 19 was -- I was attending a meeting where a party from the 20 South Delta Water Association was saying that the channels 21 in the South Delta were -- were silting in and running dry. 22 But I believe it was -- well, I'll just keep it there. 23 MR. HERRICK: If in the absence of barriers the South 24 Delta does experience dry channels, would you be interested 25 in issuing some sort of biological opinion on what is CAPITOL REPORTERS (916) 923-5447 5558 1 causing that? 2 MR. VANDENBERG: We would look at that. Yeah, I 3 would look at that. 4 MR. HERRICK: Shall we provide you with information 5 so you can look into that? 6 MR. VANDENBERG: At this time? 7 MR. HERRICK: Yes. 8 MR. VANDENBERG: You can provide information and I'd 9 like to take that back and review it and also provide a 10 chance for the other people in the office to review it that 11 I've named. 12 MR. HERRICK: And you said you haven't reviewed the 13 DEIR/EIS for the Interim South Delta Program; is that 14 correct? 15 MR. VANDENBERG: That's correct. 16 MR. HERRICK: Have you reviewed any documents in your 17 current job that describe the alleged adverse affects on 18 South Delta channels that result from the State and Federal 19 pumps? 20 MR. VANDENBERG: We have requested -- I have 21 requested information on that, monitoring reports on that. 22 MR. HERRICK: And is it your understanding that those 23 alleged affects caused by the export pumps include the 24 dewatering of some channels? 25 MR. VANDENBERG: The export facilities cause some CAPITOL REPORTERS (916) 923-5447 5559 1 dewatering in the South Delta? 2 MR. HERRICK: Yes. 3 MR. VANDENBERG: I believe that's part of it. There 4 is other components. 5 MR. HERRICK: Is it your understanding that -- what 6 is your understanding of how the tidal barriers function? 7 MR. VANDENBERG: They're equipped with flap gates so 8 that when the tide ebbs -- excuse me, floods or moves up, 9 the flap gates open and allow the water to pass. And then 10 when the tide begins to flow out, or drain, those flap 11 gates close and retain the water behind the barriers. 12 MR. HERRICK: And doesn't that improve water depth 13 upstream of the barriers as opposed to absent the barriers? 14 MR. VANDENBERG: It improves water quality upstream 15 of the barriers -- 16 MR. HERRICK: So what part of that adversely 17 affects -- 18 MR. VANDENBERG: I'm sorry, water levels upstream of 19 that. 20 MR. HERRICK: Thank you for that. 21 C.O. CAFFREY: Thank you, Mr. Brandt. 22 MR. HERRICK: I would have loved it. So what part of 23 the South Delta Barrier Program adversely affects channel 24 water depth? 25 MR. VANDENBERG: Through the operation of the CAPITOL REPORTERS (916) 923-5447 5560 1 barriers you're getting an unidirectional flow. You're 2 only getting flow coming upstream and not allowing that to 3 go out stream, or downstream. 4 So in that it -- with that, then, when you have 5 the water impounded behind the barrier, that sediment is 6 settling out. And it's raising that water level. If you 7 had unidirectional flow, I believe there would be enough 8 outflow and tidal action to maintain those channels and 9 keep -- and scour those channels to the extent that it 10 keeps them from silting in completely. 11 MR. HERRICK: So with regard to water depth, is it 12 your testimony that your concern is that the barriers cause 13 siltation to fall out of the water rather than lowered 14 water levels upstream of the barriers? 15 MR. VANDENBERG: Where -- by having siltation fall 16 out that would cause low -- the barriers themselves impound 17 water. So they raise the water level. But they -- but in 18 doing that, they also settle out the sediment and 19 eventually that sediment will raise up reducing those water 20 loads. 21 MR. HERRICK: Okay. And I don't mean to be 22 argumentative, I understood from your written testimony 23 that you said that ISDP adversely affects South Delta water 24 levels and, thus, adversely affects smelt. 25 But I understand your testimony today to be that CAPITOL REPORTERS (916) 923-5447 5561 1 it doesn't adversely affect the water level except as silt 2 may be falling out of the water behind the barrier; is that 3 a correct statement? 4 MR. VANDENBERG: I'm sorry, could you repeat that? 5 MR. HERRICK: I understand from your written 6 testimony that the ISDP adversely affected water levels 7 and, thus, adversely affected Delta smelt. 8 But I understand your testimony today to be that 9 it's not that the barrier program adversely affects water 10 levels upstream, it's that the barrier program allows silt 11 to fall out of the upstream water and, thus, will 12 eventually affect water levels? 13 MR. BRANDT: Objection. Vague. Is that different? 14 C.O. CAFFREY: I understand the question. 15 MR. BRANDT: Okay. 16 MR. VANDENBERG: That's correct. 17 MR. HERRICK: I think you said earlier that the 18 location of Delta smelt is not really predictable. Is that 19 a fair statement? 20 MR. VANDENBERG: Yes. 21 MR. HERRICK: And by that do you mean that at one 22 time you can't predict whether or not the Delta smelt are 23 in the channels of the South Delta Water Agency; is that 24 correct, absent some sampling program or monitoring? 25 MR. VANDENBERG: The very nature of fisheries biology CAPITOL REPORTERS (916) 923-5447 5562 1 is that the fish occupy a habitat that makes them hard to 2 detect. I mean they're in the water. It's hard to detect 3 that just by coming up on them. So it would be hard to 4 predict where the species are. We have ideas based on 5 their life history and life cycle where they would be, 6 where they are likely to be. 7 MR. HERRICK: So you can, generally, guess that if 8 they're going to spawn, there's some time frame, and 9 they'll probably be farther up in the Delta; is that 10 correct? 11 MR. VANDENBERG: You can predict that when they're 12 ready to spawn they would be upstream of the confluence. 13 MR. HERRICK: Okay. 14 MR. VANDENBERG: In some instances they may also be 15 in Suisun Bay, which happens to be downstream of the 16 confluence, but up in Montazuma Slough and Napa River. 17 MR. HERRICK: So any affect to which you're referring 18 to in your testimony caused by the ISDP depends on whether 19 or not the smelt are actually present in any particular 20 place; is that correct? 21 MR. VANDENBERG: If the smelt are in the bay at 22 Chipps Island, for example, the affects that the barriers 23 have are greatly decreased. If the -- if the smelt are 24 near the barriers those affects are increased. 25 MR. HERRICK: So if the smelt weren't near the South CAPITOL REPORTERS (916) 923-5447 5563 1 Delta, the operation of the ISDP would not affect them at 2 that time; is that correct? 3 MR. VANDENBERG: For example, right now the fish are 4 located right -- from the latest Fall Midwater Trawl data 5 that we have, they're located in the bay. Operation of the 6 barriers at this time would have a much less affect on the 7 fish. 8 MR. HERRICK: Okay. And, again, I don't want to 9 overstate that, but if there aren't any in the South Delta 10 does the barrier program affect smelt at all? 11 MR. VANDENBERG: If it can be determined that they're 12 not in there. As I said, by their very nature, they're 13 hard to detect. But if they're not in there the affects of 14 the barriers are lessened. 15 MR. HERRICK: So it would be possible -- would it be 16 possible to come up with some sort of operation program for 17 the ISDP in order to protect smelt? In other words, if 18 they're present, do something; if they're not, go ahead and 19 operate? 20 MR. VANDENBERG: I think that I'd have to go a step 21 further than that. And not just if they're present, don't 22 operate, but if they're approaching, then don't operate, 23 because if they're in the Central Delta the affects are, 24 essentially, already there. And it's really difficult to 25 operate to reduce those affects. But if they're CAPITOL REPORTERS (916) 923-5447 5564 1 approaching some specified area you could say, don't 2 operate. 3 MR. HERRICK: Okay. And by "don't operate," you're 4 talking about the barriers, or export pumping and barriers? 5 MR. VANDENBERG: I think it would be a combination 6 that would have to be -- that would have to be reviewed. 7 MR. HERRICK: Do you monitor, as part of your job 8 description, the amount of smelt that are entrained at both 9 the State and Federal pumps? 10 MR. VANDENBERG: I review monitoring reports. 11 MR. HERRICK: How often do those reports come out? 12 MR. VANDENBERG: They come out about everyday. 13 MR. HERRICK: And they're available on the Internet, 14 aren't they? 15 MR. VANDENBERG: That's right. 16 MR. HERRICK: Well, this is a wet year. Do you have 17 any sort of overall general number for how many smelts have 18 been entrained at the State and Federal pumps this year? 19 MR. VANDENBERG: Currently, there haven't been Delta 20 smelt entrained. 21 MR. HERRICK: Do you know why there haven't been 22 Delta smelt entrained this year? 23 MR. VANDENBERG: The barriers were not installed this 24 year. We had -- 25 MR. HERRICK: May I interrupt you there. Were the CAPITOL REPORTERS (916) 923-5447 5565 1 Delta smelt in the Central Delta during any time during the 2 last six months? 3 MR. VANDENBERG: Yes. 4 MR. HERRICK: I'm sorry, go ahead with your answer. 5 MR. VANDENBERG: As I said the barriers weren't 6 installed this year. We had very high outflows that pushed 7 the majority of the Delta smelt distribution to the Napa 8 River, which, essentially, puts them out of the zone of 9 influence. 10 MR. HERRICK: This was another wet year, would you 11 agree? 12 MR. VANDENBERG: Yes. 13 MR. HERRICK: Would you say the main reason there was 14 no Delta smelt entrainment at the pumps was because we had 15 such high outflows? 16 MR. VANDENBERG: I would say that's one reason. 17 MR. HERRICK: Are you still expecting the smelt to 18 come upstream at some point? 19 MR. VANDENBERG: I do, because they're going to be 20 coming up to spawn. 21 MR. HERRICK: I've never quite understood this. What 22 is entrainment at the pumps? Is that the number of fish 23 killed, or the number of fish salvaged, or is it both? 24 MR. VANDENBERG: Entrainment is the number of fish 25 that are drawn through the -- well, there's -- you have CAPITOL REPORTERS (916) 923-5447 5566 1 entrainment at Clifton Court Forebay, which are the number 2 of fish that enter the forebay when the gates are operated. 3 There's entrainment at the facilities, which is 4 the number of fish that come, actually, through the pumps 5 because there's some predation loss in the forebay. So 6 it's likely that the amount of fish -- amount of smelt that 7 come into the forebay will not necessarily equal the amount 8 that is pumped because of predation. 9 MR. HERRICK: Do the State and Federal Projects 10 maintain any sort of numbers of the amount of fish that 11 they salvage? Let me back up. 12 Do they salvage Delta smelt at the State and 13 Federal pumps? 14 MR. VANDENBERG: Delta smelt don't salvage. They're 15 a very delicate fish. Essentially, all of them that enter 16 the forebay are dead, or will die. 17 MR. HERRICK: Without getting too far afield from 18 your expertise, are any of species that are salvaged, do 19 they survive with any meaningful numbers the ones that are 20 salvaged? 21 MR. VANDENBERG: Some of the hardier species will 22 salvage. 23 MR. HERRICK: What would those species be? 24 MR. VANDENBERG: They're -- striped bass is a very 25 hardy species that will also salvage. Catfish will also CAPITOL REPORTERS (916) 923-5447 5567 1 salvage. Thread-fin Chad don't seem to salvage. 2 MR. HERRICK: What about salmon? 3 MR. VANDENBERG: Some of the salmon, I imagine, would 4 salvage. 5 MR. HERRICK: Do they have any numbers indicating the 6 percentages of salmon that survive after their attempted 7 relocation? 8 MR. VANDENBERG: I'm unaware of those numbers. 9 MR. HERRICK: Okay. Do you have any numbers for 10 recent prior years for Delta smelt killed at the State and 11 Federal pumps? 12 MR. VANDENBERG: I don't have that information with 13 me. 14 MR. HERRICK: This would be a good time to break in 15 my cross-examination. 16 C.O. CAFFREY: How much more time do you think you'll 17 need, Mr. Herrick? 18 MR. HERRICK: I apologize for underestimating, but I 19 have at least another hour, maybe an hour and a half or 20 two. 21 C.O. CAFFREY: That's a lot of time. All right. 22 We'll take the lunch break right now and come back at 1:15. 23 24 (Luncheon recess.) 25 ---oOo--- CAPITOL REPORTERS (916) 923-5447 5568 1 TUESDAY, OCTOBER 27, 1998, 1:16 P.M. 2 SACRAMENTO, CALIFORNIA 3 ---oOo--- 4 C.O. CAFFREY: Good afternoon, we're back. This is 5 the Bay Delta Water Rights proceeding. And we are 6 somewhere in the mist of Mr. Herrick's cross-examination. 7 He may require another hour and a half to two hours as I 8 understand it, Mr. Herrick. 9 All I can tell you is we're here, we're 10 bright-eyed and bushy-tailed. And, please -- speaking for 11 myself. Mr. Pettit says, "The Chairman isn't under oath, 12 that's easy for him to say." 13 Anyway, only kidding, Mr. Herrick. Please, 14 proceed. 15 MR. HERRICK: Thank you, Mr. Chairman. Too many 16 nonproductive jokes, but I will be as prompt as I can. 17 Mr. Vandenberg, let's move back to the take of 18 Delta smelt. How many Delta smelt are taken by 19 agricultural diversions in the South Delta each year? 20 MR. VANDENBERG: That number is hard to quantify, 21 because we haven't had the opportunity to sample 22 one-hundred percent of flow for the -- that goes through 23 the diversions. 24 MR. HERRICK: Are there -- it's my recollection, I 25 don't have any evidence to testify to this, it's my CAPITOL REPORTERS (916) 923-5447 5569 1 recollection that DWR has checked various agricultural 2 diversions and found a minimal, if any, amount of fish 3 being taken by the submersible pumps in the South Delta. 4 Have you heard that information? 5 MR. VANDENBERG: Yes, I have. 6 MR. HERRICK: Let's go through that, how the South 7 Delta pumps may take fish. We know the CVP pumps are -- 8 let me put the map back up. 9 Mr. Vandenberg, the CVP pumps are down there at 10 the end of a channel; is that correct? 11 MR. VANDENBERG: That's correct. 12 MR. HERRICK: And what channel is that, do you know? 13 MR. VANDENBERG: Grant Line Canal there, Fabian Tract 14 down here (indicating). 15 MR. HERRICK: Down there turn left where Old River 16 hits Grant Line Canal? 17 MR. VANDENBERG: Delta-Mendota Canal. 18 MR. HERRICK: Now, all the water that enters that 19 eventually goes down to those pumps; isn't that correct, 20 into that stretch between, let's say, Old River and the 21 pumps themselves? 22 MR. VANDENBERG: Yes. 23 MR. HERRICK: So if there's any Delta smelt in that 24 reach all of them get killed at the pumps; is that correct? 25 MR. VANDENBERG: That's correct. CAPITOL REPORTERS (916) 923-5447 5570 1 MR. HERRICK: In the South Delta each channel has a 2 certain number of diversions along the levees; is that 3 right? 4 MR. VANDENBERG: There's diversions in the South 5 Delta. 6 MR. HERRICK: But flow goes through those channels 7 without necessarily -- excuse me. The flow that goes 8 through those channels some of it may get sucked in by 9 agricultural diversions, but all of it doesn't; is that 10 correct? 11 MR. VANDENBERG: Some of the water goes through the 12 agricultural diversions as does fish. And some passes as 13 thus fish. 14 MR. HERRICK: So it would be unfair to compare a 15 certain stretch of South Delta channel with the diversion 16 of the Federal pumps; is that correct, with regard to the 17 take of fish since some of the water in the agricultural 18 channels continues to flow by, whereas all of the water 19 going to the pumps reaches the pumps? 20 MR. BIRMINGHAM: Objection. Ambiguous. 21 C.O. STUBCHAER: Overruled. 22 MR. VANDENBERG: You're saying some of the water -- 23 you're saying -- okay. Can you repeat the question? 24 MR. HERRICK: Sure. Let me start at a different 25 angle. Each agricultural diversion affects the river CAPITOL REPORTERS (916) 923-5447 5571 1 velocity around that diversion; is that correct? 2 MR. VANDENBERG: That's correct. 3 MR. HERRICK: And do we have any quantified amounts 4 showing the affect of those diversions, any studies or 5 reports that you're aware of? 6 MR. VANDENBERG: On diversion affects of the 7 barriers -- or I'm sorry, of the agricultural diversions? 8 MR. HERRICK: Correct. 9 MR. VANDENBERG: Yes. 10 MR. HERRICK: And what's the typical size of a 11 diversion in the South Delta, if there is a typical one? 12 MR. VANDENBERG: They range in size. Five cubic-feet 13 per second to 30 cubic-feet per second. 14 MR. HERRICK: 30 -- okay, I see what you mean. But 15 in those channels where there's a 5 cubic-feet per second 16 diversion, that 5 csf, as I say that backwards every 17 time -- 18 C.O. STUBCHAER: You got it right that time. 19 MR. HERRICK: That 5 csf diversion, that only affects 20 a small portion of the water in that channel; is that 21 correct? 22 MR. VANDENBERG: It affects a small portion, but it 23 could also affect a large number of Delta smelt if they are 24 in front of that diversion. 25 MR. HERRICK: Correct. But the point I'm trying to CAPITOL REPORTERS (916) 923-5447 5572 1 get to is: If you have a number of these agricultural 2 diversions along a stream and that stream maintains some 3 sort of net flow, then the agricultural diversions aren't 4 diverting all of the water in that channel, are they? 5 MR. VANDENBERG: No, they're not. 6 MR. HERRICK: And that's different than the Federal 7 pumps, which do divert all the water in their channel; is 8 that correct? 9 MR. VANDENBERG: Well, the Federal pumps wouldn't 10 divert all the water, because the ag pumps would take some 11 of the water. So they wouldn't be diverting all the water 12 that was in that channel. 13 MR. HERRICK: But the water that reaches a certain 14 point in closeness to the pumps all goes to those export 15 pumps at the CVP, correct? 16 MR. VANDENBERG: The water that reaches the pumps 17 goes into the pumps. 18 MR. HERRICK: I'm not trying to test your knowledge, 19 but there's a certain point where you reach in the channel 20 that all the water goes to those CVP pumps; is that 21 correct? 22 MR. VANDENBERG: That's correct. 23 C.O. STUBCHAER: Mr. Herrick, that assumes the pumps 24 are running. 25 MR. HERRICK: I don't mean to belittle that, but that CAPITOL REPORTERS (916) 923-5447 5573 1 is a good point, Mr. Stubchaer. 2 For the purposes of these questions, the CVP pumps 3 are running and, of course, so are the agricultural 4 diversions that we're talking about. 5 In your testimony you talk about increased 6 velocities in certain channels as a result of the ISDP. Do 7 you recall that? 8 MR. VANDENBERG: Yes, I do. 9 MR. HERRICK: What channels have increased 10 velocities, or are assumed to have the increased velocities 11 under the ISDP? 12 MR. VANDENBERG: There are several. The ones I had 13 mentioned specifically were Turner Cut and Columbia Cut. 14 MR. HERRICK: And explain to us why those velocities 15 are increased? 16 MR. VANDENBERG: When you put a barrier in and across 17 one of the channels, that water cannot go down that 18 channel. It's forced to go someplace else. And so it goes 19 down -- in this case, if we're talking about the head of 20 Old River -- if we're talking about the head of Old River 21 barrier, it will go down and turn into -- it makes its 22 first turn at Turner and Columbia Cut. 23 You have the pumps on and they're pumping. The 24 water that would normally flow down Old River is not going 25 down Old River, because of the barrier. It's being sent CAPITOL REPORTERS (916) 923-5447 5574 1 down the San Joaquin, but the pumps are still operating. 2 And it's the first opportunity that that water has to move 3 towards the export facilities. 4 MR. HERRICK: Well, as I understood your written 5 testimony, part of the areas you're concerned about 6 increased velocities include the area proposed for 7 dredging; is that correct? 8 MR. VANDENBERG: Are you talking about Old River? 9 MR. HERRICK: The areas that are proposed for 10 dredging under the ISDP to facilitate the flow of water 11 down there to Clifton Court Forebay. 12 MR. VANDENBERG: There are several areas proposed for 13 dredging under ISDP. There's dredging at Clifton Court 14 Forebay for the installation of the new export pump. There 15 is dredging for the construction of the barriers and 16 there's dredging at Old River. 17 MR. HERRICK: Would you agree that if you increase 18 the size of a channel through dredging, that channel then 19 holds more water for any given area? 20 MR. VANDENBERG: Depending on the water flow. 21 MR. HERRICK: And if you had more water in a channel 22 that has a certain flow, don't the velocities decrease in 23 that instance? 24 MR. VANDENBERG: Not if the export facilities are 25 increasing their pumping. CAPITOL REPORTERS (916) 923-5447 5575 1 MR. HERRICK: Well, have you gone through that 2 calculation to see the difference between the increased 3 export, which is proposed, and the change in velocity 4 resulting from the dredging of the channel? 5 MR. BRANDT: Objection. Beyond the expertise of this 6 witness who is trying to provide biological testimony, not 7 calculation of hydrologic movement. 8 C.O. CAFFREY: I would say he just asked him if he 9 did the calculation. And the answer is "yes" or "no". 10 MR. VANDENBERG: I did not do the calculation. 11 MR. HERRICK: So what basis do you conclude that 12 velocities will increase if the channel is being dredged? 13 MR. VANDENBERG: I based that on the increase -- or 14 the proposed increase for pumping. The purpose of dredging 15 Old River is to facilitate flows towards the pumps. And 16 then when they turn on the pumps and increase the pumps, 17 you're going to get faster water -- you're going to get 18 more water moving faster through that channel. 19 MR. HERRICK: Well, is the higher speed a function of 20 the area of the channel? 21 MR. VANDENBERG: I think it's a function -- I would 22 say that it's a function of the pumping. 23 MR. HERRICK: Do you know of anybody who's done the 24 calculation which compares the potential decrease in 25 velocity due to enlarging the channel as compared to an CAPITOL REPORTERS (916) 923-5447 5576 1 increased pumping rate under ISDP? 2 MR. VANDENBERG: No, I don't. 3 MR. HERRICK: Are you aware of any studies that 4 indicate, or try to compare the number of Delta smelt, I'll 5 say, taken by agricultural diversions as opposed to the 6 number of Delta smelt taken by the export projects? 7 MR. VANDENBERG: Did you say: Do I know of a study 8 that does that? 9 MR. HERRICK: Correct. 10 MR. VANDENBERG: There's -- there's information on 11 diversion affects from the agricultural diversions and also 12 the affects that the pumps have, you can compare those. 13 MR. HERRICK: Let's start with the pumps, how do they 14 measure the take at the pumps? You talked about fish that 15 go into Clifton Court Forebay are assumed to be part of the 16 take, or of the amount of entrainment; is that correct? 17 MR. VANDENBERG: Uh-huh. 18 MR. HERRICK: How do they measure the number of fish 19 entering Clifton Court Forebay? 20 MR. VANDENBERG: I'm not sure how they measure that. 21 MR. HERRICK: Do you know whether or not it's some 22 sort of realtime counting, or do they do sampling and then 23 they make projections? 24 MR. VANDENBERG: They do a sampling and then make 25 projections. CAPITOL REPORTERS (916) 923-5447 5577 1 MR. HERRICK: At the time they make those 2 projections, do they add into their calculation whether or 3 not there is an estimation of the number of Delta smelt in 4 that area at that time? 5 MR. VANDENBERG: Can you repeat that question? 6 MR. HERRICK: Let me give you a hypothetical. If you 7 take a sample and you find one Delta smelt in one minute, 8 would the calculation estimating Delta smelt over that day 9 also include the estimation of Delta smelt in the area? 10 MR. VANDENBERG: No, it doesn't. 11 MR. HERRICK: It does not. How about for the Federal 12 pumps, how do they calculate the number of fish taken at 13 the Federal pumps? 14 MR. VANDENBERG: They do a sampling and then through 15 a mathematical calculation determine that. 16 MR. HERRICK: Is that a sampling upstream or 17 downstream of the pumps? 18 MR. VANDENBERG: That's a sampling at the pumps. 19 MR. HERRICK: Is that before the smelt go into the 20 pumps, or immediately after -- 21 MR. VANDENBERG: I'm sorry, this is after -- this is 22 during the salvage process. 23 MR. HERRICK: Okay. I'd, now, like to introduce 24 South Delta Exhibits 52 and 53. And, unfortunately, I have 25 20 copies each. CAPITOL REPORTERS (916) 923-5447 5578 1 C.O. CAFFREY: Mr. Herrick, these are new exhibits 2 for cross-examination? 3 MR. HERRICK: Yes. And this time, although I don't 4 have enough for everybody, it is a government publication. 5 I do have some copies. If anybody wants to flip through, 6 they certainly can. 7 MR. BRANDT: May I have one? 8 C.O. STUBCHAER: Make sure we get ours first. 9 C.O. CAFFREY: And you will be providing sufficient 10 copies as to our regulations as time goes on within the 11 near future? 12 MR. HERRICK: It's my understanding that if it's an 13 official government document I don't need to supply 14 everybody if I identify where it is. 15 C.O. CAFFREY: Are these government documents? 16 MR. HERRICK: Yes, and I'll read the caption. 17 C.O. CAFFREY: All right. Thank you. 18 MR. HERRICK: Mr. Vandenberg, are you aware that DWR 19 has done certain fish sampling studies to determine the 20 affects of various diversions in the Delta? 21 MR. VANDENBERG: Yes, I am. 22 MR. HERRICK: Okay. I'm handing you South Delta 52 23 and 53. For the record 52 is titled, "Delta Agricultural 24 Diversion Evaluation, 1992 Pilot Study." It's done by the 25 California Department of Water Resources and the California CAPITOL REPORTERS (916) 923-5447 5579 1 Department of Fish and Game. And I believe a contact 2 person to get a copy would be at DWR Steve Roberts. 3 And the second one, South Delta 53, is titled, 4 "Delta Agricultural Diversion Evaluation Summary Report, 5 '93 through '95." Also by DWR, also by Department of Fish 6 and Game also available through Mr. Steve Roberts at DWR. 7 MS. LEIDIGH: Question, Mr. Herrick, are these 8 someplace where you can identify them in the Board's 9 records? 10 MR. HERRICK: I do not believe they are in the 11 Board's records. 12 MS. LEIDIGH: Okay. That means that they could not 13 be offered by reference. So you do need to provide copies 14 to the parties. 15 MR. HERRICK: I will do that. 16 MS. LEIDIGH: Thanks. 17 MR. HERRICK: Mr. Vandenberg, let me hand you these 18 two to just briefly see if you've seen them before. Do you 19 recognize these studies? 20 MR. VANDENBERG: Yes, I do. 21 MR. HERRICK: And were these studies part of your 22 evaluation which resulted in your biological opinion for 23 the Delta smelt? 24 MR. VANDENBERG: I reviewed these. 25 MR. HERRICK: For the record -- CAPITOL REPORTERS (916) 923-5447 5580 1 C.O. STUBCHAER: Mr. Herrick, just clarifying the 2 last answer. You said that you reviewed those. Did you 3 review those as part of your preparation of the biological 4 opinion, is that what your answer was? 5 MR. VANDENBERG: Yes. 6 C.O. STUBCHAER: Okay. Thank you. 7 MR. HERRICK: I put up on the overhead the cover 8 page for the 1992 study, which is South Delta 52. That's 9 just as a starting point. 10 And, now, Mr. Vandenberg, these studies, would you 11 agree, they're not the be-all end-all, they're limited in 12 time and scope, they don't have hundreds of sampling 13 points, they have ten or less, so there are, certainly -- 14 there's certainly attributes to these studies that lead us 15 to conclude that they're not the definitive answer, would 16 you agree with that? 17 MR. VANDENBERG: Yes. 18 MR. HERRICK: I see at the -- well, I now have on the 19 screen Table 2, which is Page 12 of the 1992 report, which 20 is South Delta 52. 21 Are you on that page? 22 MR. VANDENBERG: Yes, I am. 23 MR. HERRICK: And you can see that it has various 24 take numbers; is that correct? 25 MR. VANDENBERG: Yes. CAPITOL REPORTERS (916) 923-5447 5581 1 MR. HERRICK: And without testing your knowledge of 2 locations in the Delta as per the document, the only South 3 Delta diversion was of the Naglee Burk one; is that 4 correct? It's number 4 on that table. 5 MR. VANDENBERG: That's correct. 6 MR. HERRICK: And Table 2 is species catch summary of 7 fish eggs and larvae collected for that species, would you 8 agree with that? 9 MR. VANDENBERG: Yes. 10 MR. HERRICK: It is difficult to draw a line over 11 there, but do you see the Delta smelt over there on the far 12 left, the categories for the different types of fish? 13 MR. VANDENBERG: Yes, under "larvae"? 14 MR. HERRICK: Correct. And we see that for smelt 15 there's no smelt taken at the Naglee Burk intake; is that 16 correct? 17 MR. VANDENBERG: That's correct. 18 MR. HERRICK: Mr. Vandenberg, next I have Page 26 19 from that study which, again, is South Delta 52. Can you 20 turn to that page, please. 21 And, again, Table 5 is titled, "Summary of 22 Estimated Entrainment of Eggs, Larval Fish by Species for 23 Bacon Island, McDonald Tract and Naglee Burk," for that 24 1992 study. Would you agree with that? 25 MR. VANDENBERG: Yes. CAPITOL REPORTERS (916) 923-5447 5582 1 MR. HERRICK: Again, could you tell us how many Delta 2 smelt were taken at the Naglee Burk South Delta site? 3 MR. BRANDT: You just asked him to read from it? 4 MR. HERRICK: Yeah. 5 MR. BRANDT: So it's not of his own independent 6 knowledge. Go ahead. 7 MR. VANDENBERG: Yes, from the study it shows that 8 zero smelt were taken. 9 MR. HERRICK: Again, zero during that year; is that 10 correct? 11 MR. VANDENBERG: During the time that this study was 12 conducted. 13 MR. HERRICK: Again, and the time of the study is 14 limited, there aren't thousands of diversion points. But 15 this is one of the studies that DWR has done in order to 16 get an idea of how many Delta smelt are taken at South 17 Delta agricultural diversions; is that correct? 18 MR. VANDENBERG: That's correct. 19 MR. HERRICK: When you say you're familiar with this 20 study, have you made any sort of critique about the 21 sampling methods, or the count numbers, or anything like 22 that as part of your evaluation resulting in your 23 biological opinion? 24 MR. VANDENBERG: No, I didn't. 25 MR. HERRICK: If you could turn to Page 29 of that CAPITOL REPORTERS (916) 923-5447 5583 1 report, please. Page 29 has Table 6, which is titled, 2 "Species Catch Summary of Juvenile and Older Fish 3 Collected," for that same '92 study. Would you agree with 4 that? 5 MR. VANDENBERG: Yes. 6 MR. HERRICK: That's what it purports to be. And, 7 again, would you agree that under Delta smelt, again, for 8 Naglee Burk they show no samples taken for juvenile or 9 older fish; is that correct? 10 MR. VANDENBERG: They show no numbers. 11 MR. HERRICK: Okay. Do you have any information, or 12 studies which indicate anything different for this time 13 period in 1992 with regards to the number of Delta smelt 14 taken at the agricultural diversions in the South Delta? 15 MR. VANDENBERG: I have no information to show any 16 numbers, only that the Department states there could be 17 entrainment at these facilities. 18 MR. HERRICK: And when you say "the Department," you 19 mean DWR? 20 MR. VANDENBERG: The Department of Water Resources. 21 MR. HERRICK: And in what document do they tell you 22 that there could be takes there? 23 MR. VANDENBERG: I have it as Water Resources, 1995, 24 but I don't have the literature cited attached to this 25 opinion. Let me see if I've got it on another one. CAPITOL REPORTERS (916) 923-5447 5584 1 MR. HERRICK: Without interrupting your review there, 2 the possibility of fish being taken in the pumps is 3 contained in the DEIR/DEIS for the ISDP; is that correct? 4 MR. VANDENBERG: I believe it is. 5 MR. HERRICK: Okay. But, again, you didn't review 6 that in developing your biological opinion, right? 7 MR. VANDENBERG: Actually, at lunch I got a look at 8 that document. And I recall that I had reviewed that. 9 MR. HERRICK: Okay. Let's digress for a minute. 10 That document does contain statements about mitigation of 11 lost shallow-water habitat, doesn't it? One of your 12 earlier answers -- let me start over. 13 One of your earlier answers from a 14 cross-examination question from another attorney stated 15 that you did not see any proposed mitigation for lost 16 shallow-water habitat in the stuff that you reviewed for 17 your biological opinion. Do you recall that? 18 MR. VANDENBERG: Yes. 19 MR. HERRICK: Would you like to change your answer 20 with regard to the DEIR/EIS? I believe that does contain 21 recommended mitigation, in fact, that three-to-one 22 mitigation for the lost shallow-water habitat. Isn't that 23 correct? 24 MR. VANDENBERG: I don't recall exactly where that 25 is, if you could show that to me. CAPITOL REPORTERS (916) 923-5447 5585 1 MR. HERRICK: Okay. Up on the overhead now is the 2 cover sheet for South Delta Agency Number 53, which is the 3 Delta ag diversion study for '93 through '95. And, again, 4 that's just a cover sheet to get a starting point here. I 5 now have up on the overhead Page 22 from that report. 6 Perhaps, you could turn to that. And if you'd look at that 7 just for a second before I ask you a question. 8 Mr. Vandenberg, just so the record is clear, this 9 table doesn't separate out the types of early life stage 10 fish, or egg and larval that have been collected; is that 11 correct? 12 MR. VANDENBERG: That's correct. 13 MR. HERRICK: Okay. Under Naglee Burk, would you 14 agree that the chart doesn't show any take that suggests 15 that Delta smelt were taken? 16 MR. VANDENBERG: Can you repeat that, please? 17 MR. HERRICK: What I just want to do is go through 18 site four on the far right. And there's no indication of 19 any fish being taken at that Naglee Burk, is there, 20 according to that table? 21 MR. VANDENBERG: There's no indication of fish being 22 taken? It shows that there was sampling and that there was 23 a number of samples, but it doesn't provide any conclusions 24 from those samples. 25 MEMBER BROWN: Question on that, that last one, CAPITOL REPORTERS (916) 923-5447 5586 1 Mr. Herrick. If I may, Mr. Chairman? 2 C.O. CAFFREY: Sure, please, Mr. Brown. 3 MEMBER BROWN: What did it show if it didn't -- 4 MR. HERRICK: I'm sorry. That was not clear. 5 MEMBER BROWN: -- on the last overhead. 6 MR. HERRICK: That table shows the samples that were 7 taken over the time period; isn't that correct, 8 Mr. Vandenberg, that doesn't show the fish taken? 9 MR. VANDENBERG: It shows a sampling period, the 10 number of days that were sampled and the total number of 11 samples that were taken and the acre-feet that was sampled, 12 but it doesn't provide any information on the fish. 13 MEMBER BROWN: Does that mean that there was no fish? 14 MR. VANDENBERG: That doesn't mean anything to me at 15 this point. It just means that there was some sampling 16 going on, apparently, with no conclusion, in my mind. 17 MR. HERRICK: And I apologize to the Board. My 18 questions were incorrect on that. These are the previous 19 chart. And this one shows the number of samples and when 20 they were taken. They're not showing the number of fish 21 taken. 22 And for that reason I have Page 23 of that report. 23 And, again, that shows the number of samples and when the 24 samples were taken for different type of sampling; is that 25 correct, Mr. Vandenberg, this one using a Fyke net, CAPITOL REPORTERS (916) 923-5447 5587 1 whatever that might be? 2 MR. VANDENBERG: This one shows a Fyke net and the 3 other one showed an egg and larval net. 4 MR. HERRICK: And are you familiar with a Fyke net? 5 MR. VANDENBERG: I'm somewhat familiar with it. 6 MR. HERRICK: And what size or life stage of Delta 7 smelt would that net capture if such smelt were present? 8 MR. VANDENBERG: I don't know. 9 MR. HERRICK: We can see from this Table 3 of South 10 Delta 53 that in '93 they have 38 samples. In '94 they 11 have 36 samples. '95 they have 12 samples. Would you 12 agree with that, that that's what it says on the chart? 13 MR. VANDENBERG: Yes. 14 MR. HERRICK: And do those time frames for that 15 sample correspond to times of concern as to when Delta 16 smelt may be in the South Delta? 17 MR. VANDENBERG: Not inclusive. It doesn't include 18 December, January, February, March, April. 19 MR. HERRICK: But those would be months when the 20 Interim South Delta Program barriers are not scheduled to 21 be in operation; is that correct, the months you just 22 listed? 23 MR. BRANDT: Objection. Vague as to "Interim South 24 Delta barriers." Are we talking about all of them 25 including the head of Old River barrier? CAPITOL REPORTERS (916) 923-5447 5588 1 MR. HERRICK: Interim South Delta Program sets forth 2 when and how those would be operated. So if the witness 3 needs me to go over that, I certainly can, but I think that 4 covers the operation. 5 MR. VANDENBERG: The temporary barriers are scheduled 6 for April. And this doesn't include the April time frame. 7 MR. HERRICK: Correct, but my question was with 8 regard to your statement that this doesn't include certain 9 months, I think you said January through April; is that 10 right? 11 MR. VANDENBERG: I said December through April. 12 MR. HERRICK: December through April. But the South 13 Delta tidal barriers aren't scheduled to be in operation 14 before April 15th, are they, under the ISDP? 15 MR. VANDENBERG: Under the temporary barriers? 16 MR. HERRICK: Under the ISDP permanent barriers. 17 MR. VANDENBERG: Under the ISDP, that's correct. 18 MR. HERRICK: Now, on the overhead right now is 19 Page 28 of that '93 through '96 report -- excuse me, '93 20 through '95 report. And, again, would you agree that 21 according to this table the catch of Delta smelt at the 22 Naglee Burk site is zero? 23 MR. VANDENBERG: According to this table that's what 24 it is. 25 MR. HERRICK: And what year is that table, CAPITOL REPORTERS (916) 923-5447 5589 1 Mr. Vandenberg, what year does that cover? 2 MR. VANDENBERG: 1993. 3 MR. HERRICK: And I now have on the overhead Page 29 4 of that report which is for the year '94; is that correct? 5 MR. VANDENBERG: That's correct. 6 MR. HERRICK: And, again, what are the number of 7 Delta smelt taken at the Naglee Burk site? 8 MR. VANDENBERG: As shown on this table, zero. 9 MR. HERRICK: And finally we have Table 10, which is 10 Page 30 of that same report, and this is for year 1995; is 11 that correct? 12 MR. VANDENBERG: That's correct. 13 MR. HERRICK: And, again, this table shows -- oops, 14 let me find it here. There are no smelt on this table. 15 I'd like to strike that prior question -- just kidding, 16 wrong overhead. 17 Anyway, we can see that that shows virtually no 18 fish taken at that Naglee Burk site; is that correct, for 19 the fish listed? 20 MR. VANDENBERG: It shows some fish have been taken: 21 Blue gill, white catfish, channel catfish, Brown bullhead. 22 MR. HERRICK: And none of those are endangered or 23 threatened species? 24 MR. VANDENBERG: None of those are endangered or 25 threatened. CAPITOL REPORTERS (916) 923-5447 5590 1 MR. HERRICK: And, finally, I have up Page 68 of that 2 report, which is Table D-1. And that's listed as "Catch 3 and Catch Per Unit Effort for Early Life Stage Fish" and 4 the various sites using an egg and larval net. 5 Would you agree that that shows zero Delta smelt 6 taken at the Naglee Burk site; is that correct? 7 MR. VANDENBERG: That's what it shows. 8 MR. HERRICK: Now, is there some other, I'll say, 9 netting method other than the Fyke net, or the egg and 10 larval net that would get various life stages of Delta 11 smelt that these two types of net did not get? 12 MR. VANDENBERG: I would say if you're using an egg 13 and larval net you would be capturing -- you would be 14 capturing all life stages, or you could be capturing all 15 life stages. 16 MR. HERRICK: So what I'm asking you is: Is there 17 some other net that this study should have used in order to 18 get, potentially, non-netted fish? 19 MR. VANDENBERG: No. 20 MR. HERRICK: Mr. Vandenberg, what contrary -- let me 21 start over. 22 Mr. Vandenberg, we see that DWR has conducted two 23 studies since 1992 to try to see how many Delta smelt are 24 taken by agricultural diversions in the South Delta. Do 25 you know of any other studies since 1992, let's say since CAPITOL REPORTERS (916) 923-5447 5591 1 you've been here, that deal with the same issue, that 2 measure the number of fish taken by South Delta 3 agricultural diversions? 4 MR. VANDENBERG: No. 5 MR. HERRICK: What studies, then, do you base your 6 conclusion that South Delta agricultural diversions take 7 Delta smelt? 8 MR. VANDENBERG: Well, we know that it's intuitive 9 that when you -- when you divert water and that diversion 10 is not screened that it's going to take whatever else is in 11 the water. If there's fish in the water, we know that 12 these agricultural diversions entrain fish. This shows 13 here that, although, the samples didn't show that they took 14 Delta smelt, we see that they've taken other fish. 15 MR. HERRICK: And what investigation have you done to 16 corroborate your intuitive conclusion that Delta smelt are 17 taken at agricultural diversions in the South Delta? 18 MR. VANDENBERG: I personally have not done sampling 19 at agricultural diversions. Although that was requested, I 20 wasn't allowed access to the diversions. 21 MR. HERRICK: And has anybody else at Fish and 22 Wildlife Service done any such study? 23 MR. VANDENBERG: I -- no, they haven't. 24 MR. HERRICK: Do you know anybody at the Department 25 of Fish and Game who have done such studies? CAPITOL REPORTERS (916) 923-5447 5592 1 MR. VANDENBERG: I don't know anybody at Fish and 2 Game that's done those. 3 MR. HERRICK: In your developing of the opinion 4 containing the biological opinion, did it concern you the 5 lack of evidence of Delta smelt being taken at South Delta 6 diversions? 7 MR. VANDENBERG: No, it didn't, because they weren't 8 sampling all of the diversions in the South Delta over the 9 critical periods of time. 10 MR. HERRICK: Did you make any comparison between 11 what you believed would be the number of Delta smelt taken 12 at agricultural diversions in the South Delta absent the 13 barriers as opposed to with the barriers? 14 MR. VANDENBERG: I didn't do any sampling of the 15 agricultural diversions. 16 MR. HERRICK: Well, would you conclude that the 17 barrier program jeopardizes Delta smelt if the take numbers 18 before and after the barriers is the same? 19 MR. VANDENBERG: Well, there's more than just the 20 take, or the entrainment at the diversions that lead to the 21 jeopardizing affect. There's the -- the alteration in 22 hydrology that it causes. There's entrapment behind the 23 barriers that make them more susceptible through either 24 predation or entrainment. So just by the fact of with or 25 without the barriers, if the entrainment were the same, CAPITOL REPORTERS (916) 923-5447 5593 1 that's not getting intuitive. 2 MR. HERRICK: Okay. But it's difficult to analyze in 3 a forum like this, these hearings, a complete conclusion 4 with regards to biological jeopardy. What we have to do is 5 examine each part. And you're certainly free to say, you 6 know, one part didn't lead to my conclusion or not, the 7 whole did. But I'm trying to narrow in on each separate 8 issue. 9 And so my question, again, was: What leads you to 10 believe that -- that's not the question. 11 My question was: What do you have that indicates 12 more Delta smelt might be taken by agricultural diversions 13 in the South Delta with the barriers as opposed to without 14 the barriers? 15 MR. VANDENBERG: Well, certainly, I looked at all of 16 the affects of the Interim South Delta Program to come up 17 with my conclusion of jeopardy. In stating that there's 18 likely to be an increased amount of entrainment at the 19 agricultural facility -- or the agricultural diversions is 20 because of how the barriers operate. 21 They operate so they don't allow downstream flow. 22 They entrap fish. They entrap them in front of the 23 barriers -- or in front of the diversions. And Water 24 Resources has stated that the project, through the 25 operation of the barriers, impounds fish and could result CAPITOL REPORTERS (916) 923-5447 5594 1 in an increase in entrainment. 2 MR. HERRICK: Okay. That's what I'm getting to. If 3 you concluded that the same number of fish were taken by 4 these diversions both before and after the barrier program 5 was in operation, would you, then, change your conclusion 6 that more fish are -- would you, then, change your 7 conclusion that more are being taken -- once -- I'm sorry. 8 Let me start over, that was horrible. 9 C.O. CAFFREY: While you're doing that, while you're 10 thinking that through, Mr. Vandenberg, could you pull that 11 mic a little bit closer. Maybe it would be helpful if you 12 put it on the other side, because you're facing 13 Mr. Herrick. 14 MR. VANDENBERG: I'll talk into the mic. 15 C.O. CAFFREY: Okay. Our audio system lacks 16 whatever. There's a nonelectric statement for you. 17 MR. HERRICK: Goes right along with my nonlawyer 18 question. 19 C.O. CAFFREY: No. 20 MR. HERRICK: Mr. Vandenberg, would you change your 21 biological opinion if the data indicated there was no 22 greater take of Delta smelt at agricultural diversions in 23 the South Delta either before or after the ISDP was in 24 place? 25 MR. VANDENBERG: I would have to look at all of the CAPITOL REPORTERS (916) 923-5447 5595 1 affects and make my determination that way. Simply looking 2 at one aspect is not enough information to make a 3 determination of going one way or the other. 4 MR. HERRICK: But would you change your determination 5 with regard to that specific issue, the take of Delta smelt 6 at agricultural diversions? 7 MR. VANDENBERG: The take at the agricultural 8 diversions that we're getting at, is an indirect affect 9 caused by the barriers. An indirect affect is reasonably 10 certain to occur, but it's hard to quantify. So we're 11 really having a problem with quantifying the take. 12 We know that take occurs. We know that from this 13 limited data that we have here. We know that fish are 14 being entrained. But getting at how much more it is in 15 exact numbers is difficult to do, unless you put nets on 16 the diversion structures and sample one-hundred percent of 17 that flow. And I would love to have a study like that. 18 MR. HERRICK: You said that your conclusions, based 19 on whether or not it's reasonably certain to occur, and by 20 that I mean the increased take at the South Delta 21 diversions, again, I don't want to overstate this: 22 Given the data that I'm aware of that was subject 23 to your review prior to this opinion, how do you conclude 24 that it's reasonably certain to occur that more fish will 25 be taken under the project? CAPITOL REPORTERS (916) 923-5447 5596 1 MR. VANDENBERG: Because by the way the barriers 2 operate. They don't allow downstream flow. They entrap 3 fish behind those barriers, makes them more susceptible to 4 entrainment, because they can't go downstream. They're 5 held there, or they have to swim back against the current, 6 go upstream and swim past these diversions. So they're 7 making -- whereas, they might have only made one trip down 8 past the diversions, now they have to make several trips. 9 MR. HERRICK: Now, when you say "swim upstream," 10 that's not correct, is it? Doesn't Delta barriers result 11 in a net upstream flow? Since they prevent flow from going 12 downstream and they're refilled on the high tides, isn't 13 the flow going that way, the opposite direction? 14 MR. VANDENBERG: The barriers operate, when the tide 15 is coming in they lift up and allow the water in. And when 16 the tide ebbs they close down. But you're still getting, I 17 would imagine, some flow coming down the river to an 18 extent, because it's -- well, coming down from the upstream 19 end. 20 MR. HERRICK: But were you here during this phase's 21 presentation by DWR? Let me rephrase it. 22 Did you hear the testimony put on by Mike Ford for 23 DWR regarding the barrier program? 24 MR. VANDENBERG: I was here during Mike Ford's 25 testimony, but I don't recall that. CAPITOL REPORTERS (916) 923-5447 5597 1 MR. HERRICK: Were you here during Alex Hildebrand's 2 testimony? 3 MR. VANDENBERG: Yes, I was. 4 MR. HERRICK: Would you agree with me that the 5 testimony of those two individuals is that there's a net 6 upstream flow behind the barriers, not a downstream flow? 7 MR. VANDENBERG: I'd agree. By the way the barriers 8 operate, they allow the -- on the incoming tide they allow 9 water to move in in an upstream direction. 10 MR. HERRICK: Do you recall that the modeling done 11 shows that there's a net upstream flow, in other words, 12 there's actually flow out those channels back towards 13 Stockton? 14 MR. VANDENBERG: I recall that there's flows that 15 are -- that are changed by putting the barriers in. 16 There's flows that go in -- yes, there's flows that go in 17 an upstream direction. 18 MR. HERRICK: But there aren't any flows going 19 downstream; is that correct, because the barriers 20 themselves prevent that, both with their gates and with the 21 physical barrier itself? 22 MR. VANDENBERG: Well, with the temporary barriers 23 they're forced, so some water is coming through those and 24 some water is moving down. 25 MR. HERRICK: Well, you said that one of the reasons CAPITOL REPORTERS (916) 923-5447 5598 1 that entrainment is increased is that the fish don't have 2 anywhere to go except to swim upstream -- or swim up 3 current, against the current -- 4 MR. VANDENBERG: Okay. I should clarify that and say 5 they swim up the river. 6 MR. HERRICK: Okay. So why do you conclude that they 7 have more residency time around the agricultural diversions 8 if the net flow is the opposite direction? 9 MR. VANDENBERG: Because they're not allowed passage 10 through that barrier. They can't go out this way, which is 11 a shorter trip to the bay. They've got to go up all the 12 way around and make the trip to the bay. So there's more 13 residence time that they're spending in the South Delta 14 near they agricultural diversions. 15 MR. HERRICK: Do you have any indications, or 16 studies, or data that shows that Delta smelt behind the 17 barriers stay there rather than going in the direction that 18 they can go? 19 MR. VANDENBERG: No, I don't. 20 MR. HERRICK: Do you have any data that shows whether 21 or not the smelt in the Delta would follow the normal -- 22 would follow the existing flow in the channel as opposed to 23 going against it? 24 MR. VANDENBERG: Are you saying if the barriers 25 weren't there? CAPITOL REPORTERS (916) 923-5447 5599 1 MR. HERRICK: Regardless, just the existing flow. If 2 there's a Delta smelt in the South Delta, does he go 3 against the flow, or does he go with the flow, typically? 4 MR. VANDENBERG: It depends on what that fish wants 5 to do. I mean it's difficult to say what it's going to do. 6 Is it down there feeding? Is it avoiding predation? Is it 7 in the upstream area? Is there a big striped bass ready to 8 gobble them up? I mean what -- you know -- 9 MR. HERRICK: My question, then, is: When you write 10 your biological opinion, why wouldn't it say depending upon 11 what the fish is trying to do at that time there may be 12 adverse affects as opposed to what you say, which is "being 13 behind the barrier increases entrainment"? 14 MR. VANDENBERG: Because being behind the barrier 15 doesn't allow it to go in this direction, or in the 16 direction downstream, because that barrier prevents it from 17 moving. And so it's either forced to stay there, or swim 18 upstream and that makes it more susceptible to the 19 agricultural diversion. 20 MR. HERRICK: And why is it more susceptible now that 21 it's in that channel? 22 MR. VANDENBERG: Because it's being blocked by the 23 barrier. 24 MR. HERRICK: Again, the point, then, is: Why do you 25 conclude that the barrier prevents the Delta smelt from CAPITOL REPORTERS (916) 923-5447 5600 1 flowing with the flow towards Stockton towards the Central 2 Delta? 3 MR. VANDENBERG: Because if it didn't have that 4 barrier in there there would be flow going down that river. 5 And that fish may go with that flow, if that's what it 6 chooses. But if it makes that choice now with the barrier 7 there, it can't do that because the barrier is preventing 8 it. 9 MR. HERRICK: Well, if downstream flow is now the 10 opposite direction, why is that qualitatively different 11 than the barrier not being there? 12 MR. VANDENBERG: Because with the barrier there it's 13 got to go past all of these diversions that it might have 14 just passed and luckily didn't get diverted. Now, it can't 15 continue its journey down it's got to go past those 16 diversions or stay there. If it stays there that brings up 17 other problems maybe with predation. 18 MR. HERRICK: Well, if the barriers weren't there he 19 would still have to go past all those diversions, wouldn't 20 he? 21 MR. VANDENBERG: Yes. But now with the barrier there 22 it's making more than one pass with those diversions. 23 MR. HERRICK: Why is that? 24 MR. VANDENBERG: Because it can't go downstream, 25 because the barrier is blocking it. CAPITOL REPORTERS (916) 923-5447 5601 1 MR. HERRICK: Well, I'm having trouble understanding 2 why the Delta smelt first decides to go towards the barrier 3 if the net flow is going in the opposite direction. Is 4 there some cue, or inherent drive that makes him go that 5 direction as opposed to downstream? 6 MR. VANDENBERG: Well, if it's being affected by the 7 tides or by the water, it's likely that it will go with 8 that water, the relatively weak swimmers it might go with 9 the direction of the water. 10 If it's down here, if it's down somewhere in the 11 lower Old River and the tides come in and it pushes it past 12 this barrier, which is opened now because the tides are 13 coming in, and then that barrier closes, you get some -- 14 the -- the barrier closes when the tide begins to ebb. So 15 there's some cue that the water is going out. So it might 16 start following that, but then the barrier closes, now it's 17 stuck in there behind that barrier. 18 MR. HERRICK: Well, what sort of time period are we 19 talking about between the time the tide stops and the flap 20 gates shuts down, what, a couple minutes? 21 MR. VANDENBERG: I don't know how quickly those flap 22 gates shut. 23 MR. HERRICK: Well, don't you need to know that if 24 you're going to conclude that there's some kind of back 25 flow that starts these fish in one direction that they CAPITOL REPORTERS (916) 923-5447 5602 1 eventually can't proceed on? 2 MR. VANDENBERG: It depends on where the fish is 3 distributed in the water. If it's right by the barrier and 4 the tide comes in, it might get pushed further up. And, 5 then, as the tide goes down, move down to some area in 6 between that and then be trapped. 7 MR. HERRICK: Isn't that what normally happens with 8 tides in the Delta anyway? We've got an inflow pushing the 9 fish one way and, then, we've got an outflow pushing it the 10 other way and that happens, what, four times a day? 11 MR. VANDENBERG: Yeah, but there's not a barrier 12 blocking the progress. In this case there is. 13 MR. HERRICK: Are you saying that the Delta smelt, 14 then, follow the flow of the channel? 15 MR. VANDENBERG: They can follow the flow. They, 16 also, have the ability to swim. 17 MR. HERRICK: One of the conclusions you make in your 18 testimony is that the barriers result in more Central Delta 19 water going to the pumps; is that right? 20 MR. VANDENBERG: Yes. 21 C.O. CAFFREY: Off the record for just one minute. 22 (Off the record from 2:07 p.m. to 2:08 p.m.) 23 C.O. CAFFREY: Back on the record. 24 MR. HERRICK: Mr. Vandenberg, again, I put up on the 25 overhead South Delta 56, which is just a general Delta map CAPITOL REPORTERS (916) 923-5447 5603 1 identifying the various waterways, some of the waterways 2 and the islands. 3 Would you agree that with the three South Delta 4 barriers in operation the net flow through Middle River, 5 Old River and Grant Line Canal goes back out towards the 6 San Joaquin River and towards Stockton? 7 MR. VANDENBERG: Yes. 8 MR. HERRICK: And that's operating them as originally 9 proposed, correct? 10 MR. VANDENBERG: Yes. 11 MR. HERRICK: And, of course, if DWR comes up with 12 some operations plan which changes the Grant Line barrier 13 that conclusion may change; correct? 14 MR. VANDENBERG: That's correct. 15 MR. HERRICK: And if the Grant Line were something 16 different, and I'll say a weir instead of a barrier with 17 flap gates, the net flow in that area would then be down 18 Grant Line Canal, wouldn't it? 19 MR. VANDENBERG: That's right. 20 MR. HERRICK: Now, in your testimony you talk about 21 increased water from the South Delta going towards the 22 pumps. I'd like to explore that for a moment. Let's say 23 you have 5,000 csf coming down the San Joaquin River, this 24 is just a hypothetical? 25 MR. VANDENBERG: I think I said increased Central CAPITOL REPORTERS (916) 923-5447 5604 1 Delta water not South Delta. 2 MR. HERRICK: Correct. I meant to say that, I'm 3 sorry, Central Delta is what you concluded in your 4 testimony, correct? 5 MR. VANDENBERG: That's correct. 6 MR. HERRICK: Now, absent the barriers, how much of 7 that San Joaquin River's 5,000 csf would go over to the 8 pumps? 9 MR. VANDENBERG: I believe there is a 60/40 split. 10 40 percent would go down Old River and 60 percent would go 11 down the San Joaquin. 12 MR. HERRICK: And what happens to that 60 percent 13 that goes down the San Joaquin? 14 MR. VANDENBERG: It goes down the San Joaquin. 15 MR. HERRICK: And then it mixes with the Central 16 Delta waterways; is that correct? 17 MR. VANDENBERG: Yeah. 18 MR. HERRICK: And then how much water comes from the 19 Central Delta in that same scenario? 20 MR. VANDENBERG: I don't know. 21 MR. HERRICK: Okay. Let's put the barriers in now as 22 we extend this hypothetical, with the assumption that the 23 net flow is, then, in the other direction, it's down the 24 San Joaquin River. Now, we've got, what, a hundred-percent 25 or somewhere near a hundred-percent of the San Joaquin CAPITOL REPORTERS (916) 923-5447 5605 1 River flow going into the Central Delta? 2 MR. VANDENBERG: That's right. 3 MR. HERRICK: And that mixes with the Central Delta 4 waters? 5 MR. VANDENBERG: That's right. 6 MR. HERRICK: And, then, the export projects are then 7 pulling a certain amount of water from the north rather 8 than from the east; is that correct? 9 MR. VANDENBERG: Well, now, they'd be pulling more 10 water from the Central Delta, because the head of Old River 11 barrier is not allowing any water to go down to Old River. 12 And so it kind of sets up a void right there. And now the 13 pumps are drawing more water from the Central Delta. 14 Whereas if you have water going down Old River, it would 15 draw some percent less of water from the Central Delta. 16 MR. HERRICK: Well, would you agree that the head of 17 Old River barrier is only installed during the spring pulse 18 flow and then, again, October 1st through, what, November 19 10th or 15th? The head of Old River barrier is not 20 installed during the summer months, is it? 21 MR. VANDENBERG: No. It's installed April through 22 May and then, again, in October. 23 MR. HERRICK: Okay. Did you make any distinction in 24 your evaluation between the affects of having the head of 25 Old River barrier in as opposed to the affects if just the CAPITOL REPORTERS (916) 923-5447 5606 1 three tidal barriers were in? 2 MR. VANDENBERG: Yes, I did. 3 MR. HERRICK: Okay. When the 100 percent of the -- 4 well, let me ask you this: 5 Based on the information supplied by DWR, do you 6 know how much of the San Joaquin River flow goes to 7 Stockton when the three tidal barriers are in place and not 8 the head of Old River barrier? 9 MR. VANDENBERG: When the three tidal barriers are in 10 operation they act as if the head of Old River barrier was 11 in. So, essentially, it backs up all the water and sends 12 one-hundred percent of the San Joaquin water down. 13 MR. HERRICK: Same sort of hydrologic barrier as the 14 head of Old River provides; is that correct? 15 MR. VANDENBERG: That's correct. 16 MR. HERRICK: So, again, you have somewhere near -- 17 obviously, not totally, but somewhere near a hundred 18 percent of the San Joaquin River going to the Central 19 Delta? 20 MR. VANDENBERG: That's correct. 21 MR. HERRICK: So the Central Delta channels have an 22 additional amount of water that wasn't there absent the 23 barrier program; is that correct? 24 MR. VANDENBERG: That's correct. 25 MR. HERRICK: So when you conclude that the barrier CAPITOL REPORTERS (916) 923-5447 5607 1 program results in more water coming from the Central 2 Delta, is that taking into account that there's more water 3 put into the Central Delta? 4 MR. VANDENBERG: Well, what -- well, what is 5 happening is with the water being blocked from Old River it 6 goes down the San Joaquin. And there's a void there. And 7 it's pulling more water out of the Central Delta. It's 8 pulling more Central Delta water out. That water then that 9 goes down the San Joaquin is kind of replacing that. 10 But with the water from the Central Delta is the 11 concern that there may be Delta smelt located with that 12 water. And then you're pulling those fish down towards the 13 pumps. If you don't have that barrier in there, then 14 you're allowing some of that -- you're allowing some water 15 to go down Old River and lessen those affects. 16 MR. HERRICK: What calculations, or information 17 supports your conclusion that that's a greater pull on the 18 Central Delta than without, if the barrier program is not 19 operating? 20 MR. VANDENBERG: Can you repeat that? 21 MR. HERRICK: If you put a hundred-percent of the 22 flow of the San Joaquin River into the Central Delta, that 23 adds both volume and push into those Delta waters, doesn't 24 it? 25 MR. VANDENBERG: And selenium. CAPITOL REPORTERS (916) 923-5447 5608 1 MR. HERRICK: But you're concluding that when you put 2 the barriers in you're drawing more Central Delta water 3 and, therefore, potentially more fish. And what I'm 4 getting at is: What sort of analysis have you done that 5 supports the idea that there is some net difference between 6 the amount of water that originally was in the Central 7 Delta? 8 MR. VANDENBERG: Are you asking how did I determine 9 that more water is coming out of the Central Delta with the 10 head of Old River barrier? 11 MR. HERRICK: Correct. 12 MR. VANDENBERG: Well, because you're -- when you put 13 the head of Old River barrier in you create a void down the 14 Old River. And so normally the pumps would pump that water 15 and take some amount of water out of the Central Delta. 16 But now you're getting all the water going down the San 17 Joaquin, so all the water is coming out of the Central 18 Delta. But -- I mean I just used the modeling data that 19 the Department had provided. 20 MR. HERRICK: And does that data show anything with 21 regards to the affects of a hundred percent of the San 22 Joaquin River flowing into the Central Delta? 23 MR. VANDENBERG: It shows when the barriers end how 24 the flows are altered. 25 MR. HERRICK: In the absence of the barriers, are you CAPITOL REPORTERS (916) 923-5447 5609 1 aware that at some times the flow to the San Joaquin River 2 is reversed in that it goes upstream from Stockton towards 3 Old River? 4 MR. VANDENBERG: There's reverse flow, is that -- 5 yeah. 6 MR. HERRICK: And is it your understanding that's one 7 of the issues that is supposed to be addressed by the 8 barrier program? 9 MR. VANDENBERG: I thought the barrier program was to 10 address water levels and -- I had it here, improve water 11 levels, circulation and water quality. 12 MR. HERRICK: Well, wouldn't the reverse flow be one 13 of those circulation issues? 14 MR. VANDENBERG: Yes. 15 MR. HERRICK: And also water quality in that when you 16 have reverse flow you've got all of the San Joaquin River 17 going into the South Delta instead of some of it? 18 MR. VANDENBERG: That's right. 19 MR. HERRICK: Now, you testified both here and in 20 your written testimony that drawing Central Delta waters 21 can have an adverse affect because those may be bringing 22 more Delta smelt towards the export pumps; is that correct? 23 MR. VANDENBERG: That's correct. 24 MR. HERRICK: What is the quantifiable difference 25 between drawing Central Delta water that may have more CAPITOL REPORTERS (916) 923-5447 5610 1 Delta smelt through the channels immediately north of the 2 export pumps as opposed to the reverse flow from the 3 Central Delta flowing down the San Joaquin River going back 4 into the South Delta, or the pumps? 5 MR. VANDENBERG: Well, in both cases it's not good. 6 I mean you don't want fish going towards the pumps, you 7 want them going towards the bay. 8 MR. HERRICK: But in your biological opinion you're 9 trying to compare some sort of existing situation with the 10 proposed project; isn't that true? 11 MR. VANDENBERG: That's right. 12 MR. HERRICK: Again, what sort of quantitative 13 difference is there between pulling the water from the 14 north or pulling it from the east if both methods will be 15 pulling smelt if they're located in those areas? 16 MR. VANDENBERG: I don't understand the question. 17 MR. HERRICK: Well, is it possible that the Delta 18 smelt are located -- if we could refer to the map. Is it 19 possible that Delta smelt are located just to the west of 20 Stockton, I don't mean ten feet from Stockton, but in those 21 channels just to the west of Stockton? 22 MR. VANDENBERG: It's likely that they could be there 23 as well as anywhere throughout the Delta. 24 MR. HERRICK: And they could also be going farther 25 west, they could also be there near Woodward Island, Orwood CAPITOL REPORTERS (916) 923-5447 5611 1 Tract and Bacon Island, they could be at that part of the 2 Delta, too? 3 MR. VANDENBERG: They could be. They could be at 4 Victoria Island and Middle Roberts Island and upper Jones 5 Tract. 6 MR. HERRICK: Well, I get from your testimony that 7 pulling them from the area around Bacon Island, Palm Tract, 8 Woodward Island is bad or is worse than pulling them from 9 the areas just west of Stockton. And I'm trying to explore 10 how you concluded that one was worse than the other. Could 11 you clarify that for us? 12 MR. VANDENBERG: Depending on the distribution of the 13 smelt, if you have smelt in the lower -- or in the South 14 Delta and you have the head of Old River barrier in, that 15 barrier is preventing water from going down Old River. And 16 it's preventing water from -- from aiding and moving those 17 fish out of that area. 18 So when you put the barrier in, and all the water 19 is going down the San Joaquin rather than a portion of that 20 going down Old River, and then you're pumping it from the 21 pumps and pulling it south, you're not moving -- those fish 22 that are there don't have a chance to escape, they're being 23 pulled in. Absent the head of Old River barrier, you would 24 have a chance to get some freshwater flows to help move 25 those fish out. CAPITOL REPORTERS (916) 923-5447 5612 1 So with the barrier you're getting a hydraulic 2 problem going on in there that's not allowing these fish to 3 move to the bay. 4 MR. HERRICK: Well, the original hydraulic problem is 5 the operation of the State and Federal pumps, correct? 6 MR. VANDENBERG: What do you mean by "the original"? 7 MR. HERRICK: The flows in the South Delta especially 8 the San Joaquin River flow from Vernalis to Stockton are 9 adversely affected by the State and Federal pumps, aren't 10 they? 11 MR. VANDENBERG: The fish and the flows are adversely 12 affected by the pumps and by the placement of the barriers. 13 The barriers cause a hydrology that wasn't normally there, 14 that affects the fish. 15 MR. HERRICK: I'll go along with that. But what I'm 16 getting at is the first question in that series of 17 questions which is: Didn't we have net downstream flow in 18 all of the South Delta channels before the projects? 19 MR. VANDENBERG: Before the pumps were on line? 20 MR. HERRICK: Before the State or Federal projects 21 were working? 22 MR. VANDENBERG: Yes. 23 MR. HERRICK: Okay. So the current situation is a, 24 excuse the expression, screwed up hydrology to begin with; 25 isn't that right? CAPITOL REPORTERS (916) 923-5447 5613 1 MR. VANDENBERG: Well, we've provided a baseline that 2 offsets those impacts and now you're adding ISDP or the 3 barriers on to that. 4 MR. HERRICK: Okay. And if I may refer to the map 5 here, would you agree that the current situation is in 6 times of high exports the reverse flow on the San Joaquin 7 River; is that correct? 8 MR. BRANDT: Objection. In all flow conditions? 9 MR. HERRICK: Well, we can limit our questions to 10 those periods that are of concern to everybody. So if we 11 have a flood year this becomes meaningless, right, there's 12 plenty of flow and the barriers aren't installed. There is 13 no problem. 14 So let's limit our questions to when we have 15 problems, which is low flows and relatively high, in 16 comparison, export rates. So I thought that we established 17 the San Joaquin River has reverse flows sometimes due to 18 the operation of the State and Federal Projects, correct? 19 MR. VANDENBERG: Well, the reverse flows come down 20 Sherman Island and head down and go to the pumps. 21 MR. HERRICK: Okay. But haven't we been talking 22 about the San Joaquin River? 23 MR. VANDENBERG: The San Joaquin is down here as 24 well. 25 MR. HERRICK: Okay. Are you aware of reverse flows CAPITOL REPORTERS (916) 923-5447 5614 1 from the San Joaquin River down to the confluence with Old 2 River? 3 MR. VANDENBERG: No. I thought we were talking about 4 reverse flows in lower San Joaquin. You get -- from the 5 pumping you get flows coming around Sherman Island and 6 heading in down Old River -- or up Old River. 7 MR. HERRICK: You're not aware of reverse flows on 8 the San Joaquin River? 9 MR. VANDENBERG: When? 10 MR. HERRICK: Between Stockton and the confluence of 11 Old River? Let's take the last year of the drought. 12 Absent the barriers, you do not know whether or not there 13 would be reverse flow in this stretch of the river? 14 MR. VANDENBERG: No, I don't. 15 MR. HERRICK: Well, that makes the hypothetical moot. 16 Hypothetically, if we have a reverse flow here and the 17 Delta smelt are in this area and the water goes like this, 18 I'll explain "this." Let me start over. 19 Hypothetically, if the Delta smelt are to the west 20 of Stockton in this area, right around here where it's San 21 Joaquin, and you have reverse flow back towards Old River, 22 Middle River over to the pumps, what is the quantitative 23 difference between that situation and the situation where 24 the smelt are over here and the barriers result in the flow 25 going up, what's the difference between the smelt take at CAPITOL REPORTERS (916) 923-5447 5615 1 the pumps? 2 MR. VANDENBERG: The difference is the smelt aren't 3 getting out to the bay. But how many fish are in the first 4 scenario compared to the second one? 5 MR. HERRICK: Let's make them the same number. And 6 in either case are they -- do they have a direct route to 7 the bay that is unimpaired by unnatural flows? 8 In other words, Mr. Vandenberg, if under certain 9 circumstances the reverse flow I was talking about from 10 Stockton, if that is the base case, how are you determining 11 that that base case is better than the flow that results 12 from the barriers? 13 Because I believe your biological opinion does 14 conclude that the flows resulting from the barriers is 15 worse in that base case. I'd like to explore, have you 16 explain how you came up with that conclusion. 17 MR. VANDENBERG: If there were smelt in the South 18 Delta and you didn't have the head of Old River barrier in, 19 the water flowing down the San Joaquin, to a larger extent 20 down Old River would move those fish out to the bay. 21 MR. HERRICK: Okay. If I may interrupt you. In that 22 scenario, how many are getting past the pumps? 23 MR. VANDENBERG: How many fish? 24 MR. HERRICK: Yeah, percentages. 25 MR. VANDENBERG: I don't know. CAPITOL REPORTERS (916) 923-5447 5616 1 MR. HERRICK: Well, don't you have to know that to 2 know whether or not that's better or worse than the other 3 case? 4 MR. VANDENBERG: Well, what we're talking about, 5 what's making it worse is the change in hydrology, is we 6 have fish in the South Delta that normally absent the 7 barriers would get flow to push them out to the bay. Now 8 with the barriers, you're altering hydrology and causing a 9 north to south flow. That's pulling the fish, the Delta 10 smelt into the zone of the confluence and into the export 11 facilities. If you remove the barriers, you don't have 12 that problem. 13 MR. HERRICK: Well, I understand that's the 14 conclusion, but I'm trying to get towards how you arrived 15 at that conclusion, because the hypothetical I just put 16 forward suggests that a number of smelts are being taken as 17 a result of the reverse flows that exist without the 18 barrier program. 19 So how did you analyze, or how did you compare the 20 take under the reverse flow conditions that occurred now 21 with the take under the different reverse flow conditions 22 that occur under the barrier program? 23 MR. VANDENBERG: The fish that are -- let's see, the 24 fish that are in the Central Delta, absent the barriers -- 25 or in the South Delta absent the barriers would have an CAPITOL REPORTERS (916) 923-5447 5617 1 opportunity with the flows to move out to the bay. 2 Okay. Now, when you put the barriers in, it 3 alters that flow. And it makes them more susceptible to a 4 north-south flow rather than an east-west flow. And so now 5 you're getting more fish because of the change in hydrology 6 moving towards the pumps. 7 MR. HERRICK: Okay. Now, move that same population 8 of fish farther east and go through that same analysis both 9 with and without the barriers. 10 MR. VANDENBERG: But you're not getting just fish in 11 this area or that area. There are fish -- Delta smelt 12 likely may be distributed throughout the Delta. And so 13 you're looking at just protecting one little segment of the 14 population, when what's important is to protect all of 15 them. 16 MR. HERRICK: I thought we said earlier that we don't 17 have any way of predicting where the fish would be. 18 MR. VANDENBERG: What I meant by that is we can't go 19 into Old River and say, okay, today is, you know, 20 October -- I don't even know what the date is today, 21 October 26th and say there's going to be smelt here, 22 because there was last year, I know it. You can't predict 23 that. 24 But you can predict that because it's -- because 25 it's somewhere between December and June we're having CAPITOL REPORTERS (916) 923-5447 5618 1 upstream migration. So it's likely that the fish are going 2 to be in this part of the Delta rather than in the bay, 3 because they're going to be going towards upstream 4 migration, or they're going to be going towards the 5 spawning. So we can predict somewhat where the fish are 6 going to be, but not absolutely. 7 MR. HERRICK: Well, then, would you agree that your 8 opinion about an increased take resulting from the barriers 9 depends entirely upon where large portions of the smelt 10 population are during that time? 11 MR. VANDENBERG: Well, certainly, it depends on 12 distribution. If the smelt are in the bay, you're not 13 going to get -- it's likely that you're not going to get 14 the take at the pumps with the barriers operating. 15 If the smelt are in the Central Delta and South 16 Delta and you operate the pumps, it's more likely that 17 you're going to get fish entrained -- or operate the 18 barriers, it's more likely that you're going to get the 19 fish entrained in the pumps. 20 MR. HERRICK: Where in your biological opinion, or 21 your written testimony do you say: This depends on the 22 location of the fish? Let's say the fish were in Old River 23 between where the barrier is now and where it -- where 24 Middle River breaks off from, in the absence of barriers 25 wouldn't those be sucked over and killed by the State and CAPITOL REPORTERS (916) 923-5447 5619 1 Federal pumps anyway? 2 MR. VANDENBERG: Not necessarily, because you could 3 get some flows to push those out. 4 MR. HERRICK: Let's explore that. What information 5 have you looked at under low-flow conditions that suggests 6 that there is a flushing of fish past the pumps from Old 7 River? 8 MR. VANDENBERG: Well, if you put a barrier in 9 there -- 10 MR. HERRICK: This is without the barrier, 11 historically. Let's put the smelt population down there in 12 Old River. Okay. We have a low-flow condition, which is 13 the time of concern in the South Delta. What information 14 do you have that suggests that that smelt population 15 wouldn't be sucked over into the State or Federal pumps 16 anyway? What information do you have that there's a flow 17 beyond, or past those pumps under low-flow conditions? 18 MR. BRANDT: Objection. That's a compound question. 19 MEMBER BROWN: Mr. Chairman, that was part of the 20 clarification of the prior question, I might suggest. I'd 21 suggest answer the question, if you can. 22 MR. VANDENBERG: Could you repeat the question? 23 C.O. CAFFREY: We'll go along with Mr. Brown's 24 concern. 25 MR. HERRICK: I can ask it again. In your evaluation CAPITOL REPORTERS (916) 923-5447 5620 1 which resulted in your biological opinion, you examined 2 various, what, hydrological flow conditions. You examined 3 various things, did you not, in order to have a base case 4 against which to compare the project? 5 MR. VANDENBERG: Yes, DWR provided some information. 6 MR. HERRICK: Okay. Let's just assume that the Delta 7 smelt population, or a large part of it is down there in 8 Old River. Let's make it Old River and Grant Line Canal. 9 Let's assume a low-flow condition in a below normal year. 10 Did you examine any data which suggests that those Delta 11 smelt would go past the State and Federal pumps, or not? 12 MR. VANDENBERG: I reviewed the monitoring -- or 13 modeling reports by DWR that shows what the change in 14 hydrology is. When you put the barrier in there's a change 15 in hydrology. It increases the north to south flow. 16 Absent the barriers, you have flushing flows that might 17 move those fish out to the bay. 18 MR. HERRICK: Okay. That's my question, not the rest 19 of it, but that flushing flow. We're assuming a low-flow 20 condition in the South Delta. Is it your testimony today 21 that you've examined data that shows those Delta smelt are 22 flushed by the State and Federal pumps in the absence of 23 the barriers? 24 MR. VANDENBERG: I didn't review information that 25 showed this scenario. CAPITOL REPORTERS (916) 923-5447 5621 1 MR. HERRICK: If you didn't examine that, how do you 2 know it's worse under the project than that condition of 3 the no project? 4 MR. VANDENBERG: Because under the project the flows 5 are altered to where you're not getting any flows down Old 6 River and you're getting the majority of the flows coming 7 from north to south. Absent the barriers, you're getting 8 water movement that may move those fish out to the bay by 9 the nature of the how the rivers flow. 10 MR. HERRICK: Well, then, it's your testimony that 11 regardless of where the fish population is, the altered 12 flows from the barriers have an adverse affect on Delta 13 smelt? 14 MR. VANDENBERG: It, certainly, depends on where the 15 fish are. 16 MR. HERRICK: Okay. That was my last hypothetical. 17 The fish are down there, far southern part of the South 18 Delta, low-flow conditions, what information -- how did you 19 conclude that those fish would get flushed by in the 20 absence of the barriers? 21 MR. VANDENBERG: Because with the barriers you get -- 22 MR. HERRICK: I'm asking you absent the barriers. 23 I'm not asking you with the barriers. 24 MR. VANDENBERG: Absent the barriers you could get 25 some flow going down Old River and into Grant Line Canal CAPITOL REPORTERS (916) 923-5447 5622 1 and possibly past Clifton Court Forebay and down Old River 2 and into the bay. With the barriers you don't. With the 3 barriers you get north to south flows in Old River that 4 would not move those fish out. 5 MR. HERRICK: If we put the smelt population in the 6 South Delta, what data did you review that shows those fish 7 will be flushed by the pumps? The question is: Under some 8 circumstances aren't all of those Delta smelt in the South 9 Delta in low-flow conditions going over and being killed at 10 the State and Federal pumps without the barriers? 11 MR. VANDENBERG: Not if they're being diverted 12 through agricultural diversions in the South Delta. 13 MR. HERRICK: That's the same issue, if they're 14 killed or not, we're trying to compare that circumstance 15 with the with-barrier. 16 So how did you determine that it's worse under the 17 barriers than not if you don't know how many Delta smelt 18 would be killed under various flow conditions without the 19 barriers? 20 MR. VANDENBERG: I didn't understand that question. 21 MR. HERRICK: Okay. In your biological opinion did 22 you take into consideration the affects of the head of Old 23 River barrier on other downstream beneficial uses? 24 MR. VANDENBERG: Such as what? 25 MR. HERRICK: Such as the fact that the head of Old CAPITOL REPORTERS (916) 923-5447 5623 1 River barrier may shut off all flow down into Old River and 2 Middle River? 3 MR. VANDENBERG: Well, the temporary barrier allows 4 some flow. 5 MR. HERRICK: Okay. But your analysis was on the 6 permanent barrier. I believe you concluded no harm under 7 the Temporary Barriers Program; is that correct? 8 MR. VANDENBERG: Well, there was harm, but it was 9 minimized to the extent. 10 MR. HERRICK: It wasn't enough to warrant a jeopardy 11 opinion? 12 MR. VANDENBERG: That's correct. 13 MR. HERRICK: Okay. Let's go back to the question 14 then: If the permanent -- did you examine the affects on 15 downstream beneficial uses with the head of Old River 16 barrier being in? 17 MR. VANDENBERG: No. 18 MR. HERRICK: Do you recall that there have been 19 instances in the last couple of years when people near the 20 junction of Middle and Old River have complained of low 21 water levels when the head of Old River barrier is 22 installed? 23 MR. VANDENBERG: Yes. 24 MR. HERRICK: And do those low water levels affect 25 fish? CAPITOL REPORTERS (916) 923-5447 5624 1 MR. VANDENBERG: The change in hydrology affect fish. 2 The water depth affect fish. 3 MR. HERRICK: Okay. And without being facetious, in 4 those stretches that run dry that would be an adverse 5 affect on fish in general, would it not? 6 MR. VANDENBERG: Yes, it would. 7 MR. HERRICK: And when you dry up some of those 8 portions of some of those channels is that then an adverse 9 affect on critical habitat for Delta smelt? 10 MR. VANDENBERG: Yes, it is. 11 MR. HERRICK: And what actions has Fish and Wildlife 12 Service taken to address those concerns so that the habitat 13 of Delta smelt is not being removed periodically from 14 the -- from being available to the fish? 15 MR. VANDENBERG: Well, I've talked about in some 16 instances in the South Delta where the agricultural 17 diversions are high and dry, maybe we -- there could be 18 some consolidation of diversions with screening. And those 19 could be placed in areas with limited dredging. So that 20 you have some areas in the South Delta where -- where the 21 diversions have been consolidated and screened. And then 22 where the diversions aren't, you could put vegetation to 23 increase the critical habitat -- or increase habitat. 24 MR. HERRICK: Why would relocating diversions fill up 25 that part of the channel that's dry downstream of the head CAPITOL REPORTERS (916) 923-5447 5625 1 of Old River barrier? 2 MR. VANDENBERG: I don't understand. 3 MR. HERRICK: Well, the original question had to do 4 with addressing the parts of the channel that dry up 5 downstream of the head of Old River barrier. And when I 6 asked you what is Fish and Wildlife Service doing to 7 address that, you said "we proposed consolidating 8 diversions," and then other things. Is that a fair 9 statement? 10 MR. VANDENBERG: Yes. 11 MR. HERRICK: How does consolidating diversions 12 provide more water to that stretch that is dried up? 13 MR. BRANDT: Objection. Mischaracterizing the 14 testimony that he testified that it somehow fills water. 15 C.O. CAFFREY: Do you understand the question, 16 Mr. Vandenberg? 17 MR. VANDENBERG: He can, certainly, repeat it. 18 MR. HERRICK: Do you believe that consolidated 19 diversion along those channels will result in more water in 20 the dry parts? 21 MR. VANDENBERG: If the problem is trying to get 22 water to those diversions that are high and dry, then it 23 would seem that the logical solution would be to move that 24 diversion to where there's water. So if you consolidated 25 that diversion to another point, you would get the water. CAPITOL REPORTERS (916) 923-5447 5626 1 If you screen that diversion, then, you would decrease take 2 of fish. 3 MR. HERRICK: Well, I believe the question was how 4 the lowered water levels affect critical habitat for Delta 5 smelt not providing agricultural diverters with water. 6 So I'll go back to the original question which 7 was: Has Fish and Game taken any steps to address the 8 issue of dewatering channels downstream of the head of Old 9 River barrier? 10 MR. BRANDT: Objection. Fish and Game, or Fish and 11 Wildlife? 12 MR. HERRICK: I'm sorry, the Fish and Wildlife 13 Service. 14 MR. VANDENBERG: Has Fish and Wildlife Service taken 15 steps to address the -- I'm sorry, the last part of that? 16 MR. HERRICK: Has the Fish and Wildlife Service taken 17 any steps to address the dewatering of channels downstream 18 of the head of Old River barrier given that those channels 19 are critical habitat to the Delta smelt? 20 MR. VANDENBERG: I have talked about some limited 21 dredging in those areas. 22 MR. HERRICK: How does limited dredging provide water 23 to a place that doesn't have water? 24 MR. VANDENBERG: Well, if you remove the sediment, 25 water comes in. CAPITOL REPORTERS (916) 923-5447 5627 1 MR. HERRICK: From where? 2 MR. VANDENBERG: From the surrounding areas. 3 C.O. CAFFREY: Mr. Herrick, I've been looking for a 4 natural break in this, but it doesn't seem to exist at 5 least in this juncture of your conversation, or your 6 questioning. Do you mind if we take a break now? 7 MR. HERRICK: Certainly, I apologize for taking -- 8 C.O. CAFFREY: No, that's all right. We'll come back 9 in 12 minutes. 10 (Recess taken from 2:40 p.m. to 2:58 p.m.) 11 C.O. CAFFREY: Back on the record. Mr. Herrick, just 12 out of curiosity, how much more time do you think you're 13 going to need? I know you can't anticipate how long it's 14 going to take the witness to answer. 15 MR. HERRICK: I apologize for taking so long. 16 C.O. CAFFREY: Not necessary. 17 MR. HERRICK: And I will do my best to be done at 18 4:00. 19 C.O. CAFFREY: You've not yet broken the 20 cross-examination time record. 21 MR. HERRICK: I think I've got another six hours. 22 C.O. CAFFREY: If you're going to go to 4:00, it 23 probably sounds like we won't be getting to 24 Mr. Nomellini until tomorrow morning. 25 MR. HERRICK: It is very possible. I apologize for CAPITOL REPORTERS (916) 923-5447 5628 1 that. 2 C.O. CAFFREY: Not necessary, but go ahead, 3 Mr. Herrick. 4 MR. HERRICK: Thank you. Mr. Vandenberg, do you 5 recall an instance, I believe it was in 1997, when the 6 temporary barrier tidal gates were tied opened because the 7 yellow-light trigger for the Delta smelt had been reached? 8 MR. VANDENBERG: In '97 or '94? 9 MR. HERRICK: I believe it was '97, two springs ago. 10 MR. VANDENBERG: I don't recall. 11 MR. HERRICK: Do you recall that happening though in 12 some year recently? 13 MR. VANDENBERG: Yes. 14 MR. HERRICK: Were you involved in that decision? 15 MR. VANDENBERG: I provided some input. 16 MR. HERRICK: Okay. And could you tell us what group 17 made that decision, or individuals? 18 MR. VANDENBERG: Within our office -- or the group 19 that finally made the decision I believe it was the CalFed 20 Ops Group. 21 MR. HERRICK: And I don't know either. It's my 22 understanding -- 23 C.O. CAFFREY: You need to put the mic over on the 24 other side, Mr. Vandenberg. There you go. Thank you, sir. 25 MR. HERRICK: Again, I don't mean to lead you too CAPITOL REPORTERS (916) 923-5447 5629 1 much here. It's my understanding it never reached the 2 CalFed Ops Group, but that some subgroup made that 3 decision. 4 Do you have any information you could shed on 5 that, any light you can shed on that? 6 MR. VANDENBERG: No, I don't. 7 MR. HERRICK: But you said you were consulted, or you 8 consulted in some manner with that decision? 9 MR. VANDENBERG: I was in the conversations. 10 MR. HERRICK: And if those situations were to arise 11 in the future, would you expect, again, to be consulted? 12 MR. VANDENBERG: Yes. 13 MR. HERRICK: Is it your understanding that the South 14 Delta Barrier Program is allegedly to address adverse 15 impacts caused by the State and Federal Projects? 16 MR. VANDENBERG: The purpose of the barriers program, 17 yes. 18 MR. HERRICK: And I want to explore that decision, 19 then. When you have an instance where a number of smelt 20 are being taken, or a certain population density occurs, 21 then that kicks in one of those triggers on the 22 yellow-light plan; is that correct? 23 MR. VANDENBERG: That's correct. 24 MR. HERRICK: And what are the options available once 25 that trigger is tripped? CAPITOL REPORTERS (916) 923-5447 5630 1 MR. VANDENBERG: You can -- you can tie the gates 2 opened. You can remove the barriers. You can decrease 3 pumping. 4 MR. HERRICK: Okay. Now, in your consultation about 5 what to do in those situations where the trigger is 6 tripped, what would you lead you to conclude that tying the 7 barriers opened, or removing the barriers is a better 8 option than decreasing pumping? 9 MR. VANDENBERG: Certainly, I would like to see a 10 combination which is also an option to do a combined 11 approach, tie open the barriers and decrease pumping. 12 But if you could repeat the question, then, again. 13 MR. HERRICK: Well, let me approach it a different 14 way. Assuming the barriers are allegedly to address the 15 affects of pumping rates in order to protect smelt, why 16 would you undo the mitigation of the pumps to allow the 17 pumps to increase? 18 MR. VANDENBERG: Because the barriers also have a set 19 of impacts. So removing those would help remove the 20 impacts. 21 MR. HERRICK: But the barrier impacts are supposedly 22 redirecting flows so that fish end up at the pumps; isn't 23 that correct? 24 MR. VANDENBERG: The barriers do that. 25 MR. HERRICK: Okay. So, again, I'm trying to decide CAPITOL REPORTERS (916) 923-5447 5631 1 how the decision makers come up with a decision if the 2 problem is fish being killed at the pumps and the barrier 3 program is mitigating a certain pumping rate, why is the 4 protection of Delta smelt the removal of the barriers, the 5 mitigation of the pumps, as opposed to cutting the pumping? 6 MR. VANDENBERG: As I said it could be cutting the 7 pumps. It could be removing the barriers, or tying the 8 gates opened, or a combination. The -- I'll stop there. 9 MR. HERRICK: Is one of your considerations in that 10 consultation process what happens to other beneficial uses 11 in the South Delta if the barriers are removed, or the flap 12 gates are tied up? 13 MR. VANDENBERG: I'm consulting on a proposed action 14 and how that action would affect Delta smelt. I'm not 15 consulting on other beneficial uses. 16 MR. HERRICK: Okay. But wouldn't decreasing pumping 17 to a certain point always result in fewer smelt taken under 18 those circumstances when the yellow light has been tripped? 19 MR. VANDENBERG: When there's a take at the pumps, 20 decreasing pumping may help to reduce that take. But with 21 the barriers still remaining in, you would still get 22 that -- that hydrology, that alteration in flows. And you 23 would still get -- you would still have problems at the 24 pumps. I think the best alternative would be some sort of 25 combination. CAPITOL REPORTERS (916) 923-5447 5632 1 MR. HERRICK: But if you decrease export pumping to a 2 certain rate, wouldn't you, by definition, no longer have a 3 water level problem in the South Delta, which is the 4 purpose of the barriers? 5 MR. VANDENBERG: If you decrease pumping I think 6 there would not be a water quality problem -- excuse me, a 7 water level problem. 8 MR. HERRICK: So we could come up with an operation 9 criteria to address those various issues, could we not? 10 MR. VANDENBERG: We could. But I think what we need 11 to remember is that when operating the pumps, when there's 12 an issue of take, because as we recall there's two 13 triggers. There's a take trigger and a distribution 14 trigger. 15 When the take trigger is tripped, the damage, 16 essentially, is done. Operating the barriers through like 17 a radio gate, opening those barriers isn't necessarily -- 18 isn't necessarily going to reduce that take. So I think -- 19 I think what we need is to -- is to tie open the flap gates 20 and reduce pumping in order to -- in order to reset that 21 trigger. 22 MR. HERRICK: Okay. Do you recall the last instance 23 where this trigger was tripped, whether you remember the 24 year or not that was the lead into these questions, that 25 happened recently? CAPITOL REPORTERS (916) 923-5447 5633 1 MR. VANDENBERG: Yes. 2 MR. HERRICK: Do you recall that occurred during a 3 time when they were ramping up exports? In other words, 4 they were increasing between the May 15th date and 5 I believe the June 15th, but do you recall that they were 6 ramping up? 7 MR. VANDENBERG: I don't recall the exact 8 circumstances. 9 MR. HERRICK: Okay. If you were consulting on such a 10 situation where it were proposed to increase export pumping 11 and tie open the flap gates of the South Delta barriers, 12 what would be your consultation on that situation? 13 MR. VANDENBERG: Well, I would need -- I would need 14 time to review what all the other components are. What is 15 the abundance? Where's the -- what's the distribution? 16 What other kind of things are going on? 17 MR. HERRICK: Under what circumstances does tying 18 open the flap gates with increased pumping -- or under what 19 circumstances would tying open the flap gates and 20 increasing export pumping protect Delta smelt? 21 MR. VANDENBERG: I don't know. 22 MR. HERRICK: Do you recall this last instance when 23 this situation occurred it -- the trigger was the take 24 limit being reached rather than the abundance survey? 25 MR. VANDENBERG: That's correct. CAPITOL REPORTERS (916) 923-5447 5634 1 MR. HERRICK: Okay. So if the take limit was 2 occurring at the pumps and the net result was an increase 3 in pumping, would you conclude that that was beneficial or 4 not to Delta smelt? 5 MR. VANDENBERG: I would conclude that that is not 6 beneficial. And that, perhaps, there -- they should be 7 decreasing pumping as well as tying open the flap gates on 8 the barriers. 9 MR. HERRICK: And would you agree that if it's a 10 water level problem in the South Delta and you decreased 11 pumping, that may allow you to tie the flap gates open, in 12 other words, you have enough water level now? 13 MR. VANDENBERG: Are we still talking about -- 14 MR. HERRICK: That's all right. 15 MR. VANDENBERG: Okay. 16 MR. HERRICK: I don't mean to beat a dead horse here. 17 In your decisions involving your consultation on any such 18 triggering of that yellow-light plan, do you take into 19 consideration a priority of water rights that may exist 20 under California law? 21 MR. VANDENBERG: I look at the affects that it's 22 having on the species and how to protect those species. 23 MR. HERRICK: Okay. But you're not asked to provide 24 any recommendation as to what actions may be taken based on 25 a priority of water rights? CAPITOL REPORTERS (916) 923-5447 5635 1 MR. VANDENBERG: I provide -- I provide 2 recommendations. And then I don't necessarily have the 3 final say. I don't have the final say. I make 4 recommendations on what should be done. 5 MR. HERRICK: Okay. But those recommendations don't 6 include conclusions based upon any understanding you may 7 have on California water rights priority? 8 MR. VANDENBERG: No. 9 MR. HERRICK: All right. You state in your written 10 testimony that the barriers increase water levels behind 11 them; is that correct? 12 MR. VANDENBERG: Yes. 13 MR. HERRICK: Wouldn't it be more correct to say that 14 they hold high-tide levels rather than increase it above 15 what normally would be there? 16 MR. VANDENBERG: They impound water, so they would 17 raise -- they raise the water level. 18 MR. HERRICK: Okay. But does the water level behind 19 the barriers upstream, does that go above the high-tide 20 level that existed when the water was flowing through the 21 barrier? 22 MR. VANDENBERG: I think the purpose of the barriers 23 are for during low-tide levels to help. 24 MR. HERRICK: Correct, but the water only flows 25 upstream behind the barriers during high tides, excuse my CAPITOL REPORTERS (916) 923-5447 5636 1 my ignorance of the terms here, as the high tide is 2 approaching? 3 MR. VANDENBERG: That's correct. 4 MR. HERRICK: Okay. And then as the tide stops 5 coming in the flap gates shut, correct? 6 MR. VANDENBERG: When the tide starts to ebb they 7 shut. 8 MR. HERRICK: So the water level behind the barriers 9 is at that high-tide mark? 10 MR. VANDENBERG: Right. 11 MR. HERRICK: Do you have any information that states 12 that that water gets above that high-tide level? 13 MR. VANDENBERG: No, I don't. 14 MR. HERRICK: So would you change your testimony at 15 all if someone would tell you that your testimony suggests 16 that the water levels are higher behind the barriers than 17 in the absence of the barriers? 18 MR. VANDENBERG: The water levels behind the barriers 19 are elevated directly behind the -- behind the barriers and 20 kind of taper off. 21 MR. HERRICK: But they are -- I'm sorry. 22 MR. VANDENBERG: Go ahead. 23 MR. HERRICK: I didn't pose that question very well. 24 You would agree that the level of water behind the barriers 25 never exceeds the high-tide level; is that correct? CAPITOL REPORTERS (916) 923-5447 5637 1 MR. VANDENBERG: Under the Temporary Barriers 2 Project -- 3 MR. HERRICK: Is it -- 4 MR. VANDENBERG: -- yes. 5 MR. HERRICK: Is it different under the permanent 6 barriers? 7 MR. VANDENBERG: The temporary barriers allow some 8 flow to go through. The permanent barriers do not. So 9 that it could -- I'm not sure. 10 MR. HERRICK: But do you have an understanding as to 11 whether or not the high tide trapped by the barriers would 12 ever increase above that high-tide level? 13 MR. VANDENBERG: No. 14 C.O. STUBCHAER: Mr. Herrick, is that with the head 15 of Old River in place or without? 16 MR. HERRICK: Well, either case. The tidal barriers 17 trap -- I'll pose this as a question: 18 Wouldn't you agree that the tidal barriers trap 19 incoming flows and there isn't anything else changing that 20 water level? 21 MR. VANDENBERG: Are you two talking, or is this 22 meant for me? 23 C.O. STUBCHAER: He's asking a question of you, 24 because that's the way we do this, I guess. 25 C.O. CAFFREY: He's going to answer Mr. Stubchaer's CAPITOL REPORTERS (916) 923-5447 5638 1 question by asking you a question. You may answer his 2 question if you understood it. 3 C.O. STUBCHAER: I'll just say one more thing and 4 then sign off. You may want to ask about tidal pumping up 5 the San Joaquin River with the absence of head of Old River 6 barrier in pursuing the answer to your question. 7 MR. HERRICK: Do you have any information with 8 regards to additional water flowing into those areas behind 9 the barriers that would lead to an increase in the water 10 level above the hide-tide level? 11 MR. VANDENBERG: No. 12 MR. HERRICK: We covered this on a different tact 13 before -- well, never mind. Are you aware that one of the 14 alleged affects of the State and Federal pumps on South 15 Delta waterways is the creation of stagnant or null zones? 16 MR. VANDENBERG: I've heard that argument, but I 17 believe it's more of a product of the barriers themselves 18 causing those null zones, because they don't allow the 19 necessary flushing. 20 MR. HERRICK: You're not aware of stagnant, or null 21 zones in the South Delta pre-temporary barriers? 22 MR. VANDENBERG: I'm not aware of any. 23 MR. HERRICK: If there were such stagnant zones -- 24 let me start over. 25 Would a stagnant zone of water, by that I mean a CAPITOL REPORTERS (916) 923-5447 5639 1 null zone, would that have an adverse affect on Delta smelt 2 if it occurred in the South Delta within the South Delta 3 Water Agency's boundaries? 4 MR. VANDENBERG: Not necessarily. 5 MR. HERRICK: And what about Delta smelt in that 6 stagnant zone? 7 MR. VANDENBERG: Would there be an affect to them? 8 MR. HERRICK: Yes. 9 MR. VANDENBERG: Only to the extent -- well, the null 10 zone wouldn't necessarily affect the species, but it might 11 indirectly, by holding them in an area -- I guess I really 12 don't understand the question, the null zone itself? 13 MR. HERRICK: Have you done any analysis of the 14 affects of the South Delta null zones, absent the barrier 15 program, the affects of the South Delta null zones on Delta 16 smelt? 17 MR. VANDENBERG: No, I haven't. 18 MR. HERRICK: In your testimony you also talk about 19 the barriers decreasing water quality in the Central Delta; 20 is that correct? 21 MR. VANDENBERG: Yes. 22 MR. HERRICK: It is my understanding that you also 23 say in your written testimony that that decrease in water 24 quality is adverse to Delta smelt; is that correct? 25 MR. VANDENBERG: That's correct. CAPITOL REPORTERS (916) 923-5447 5640 1 MR. HERRICK: In the absence of the South Delta 2 barriers in low-flow times, and we'll also assume under 3 this, I guess it's a hypo, high salinity coming down the 4 San Joaquin River. In the absence of the barriers that 5 poor San Joaquin water goes mainly into the South Delta. 6 Would you agree with that? 7 MR. VANDENBERG: Yes. 8 MR. HERRICK: But with the barriers most of it, I'll 9 say, get pushed toward the Central Delta; is that correct? 10 MR. VANDENBERG: Yes. 11 MR. HERRICK: And you say when that bad quality of 12 water is pushed toward the Central Delta it could have an 13 adverse affect on the Delta smelt; is that correct? 14 MR. VANDENBERG: Yes. 15 MR. HERRICK: What is the difference, in your 16 opinion, between the adverse affect resulting to Delta 17 smelt when the San Joaquin River water is pushed towards 18 the Central Delta as opposed to when it flows through the 19 South Delta? 20 MR. VANDENBERG: When it flows through the South 21 Delta it's diverted by agricultural diversions or exported. 22 When it flows to the Central Delta, it is transported to 23 the corridor that's used by Delta smelt either during their 24 upstream or downstream migration. 25 MR. HERRICK: I thought you said earlier that in CAPITOL REPORTERS (916) 923-5447 5641 1 those low-flow events, there was a flow past the pumps 2 which took the Delta smelt beyond them towards the bay; is 3 that correct? 4 MR. VANDENBERG: Yes. 5 MR. HERRICK: But I just heard you say that if the 6 bad quality San Joaquin River water is flowing through the 7 South Delta it doesn't affect Delta smelt, because the 8 export pumps and agricultural diverters take it all; is 9 that what you said? 10 MR. VANDENBERG: I guess I would need to clarify that 11 and say, again, it would depend on the distribution and 12 that would have to be looked at. 13 MR. HERRICK: Okay. Well, how did you come up with 14 the conclusion that it's worse to push the poor quality 15 water through the Central Delta as opposed to letting it 16 flow through the South Delta? 17 MR. VANDENBERG: Well, the Central Delta is utilized 18 more by the smelt, because it -- it's the corridor that 19 would lead to the north Delta, the Central Delta, the South 20 Delta. So it has a majority of the population during 21 upstream migration in that area. Pushing this water with 22 selenium into that area has a greater opportunity of 23 affecting more fish. 24 MR. HERRICK: I thought we said earlier that it's 25 very difficult to tell where the Delta smelt population is. CAPITOL REPORTERS (916) 923-5447 5642 1 But I take it from your last statement that you're saying 2 that the majority of the population is in the Central 3 Delta? 4 MR. VANDENBERG: Well, I clarified and I said that 5 it's difficult to predict accurately that there's going to 6 be a fish right here at this time. But we can predict, 7 based on their life history, that the fish are likely to be 8 in this area during this time. 9 MR. HERRICK: What salinity of water is bad for any 10 life stage of Delta smelt? Can you give us some input on 11 that? 12 MR. VANDENBERG: In excess of 18 parts per thousand. 13 MR. HERRICK: And what does that translate into in 14 TDS so we can make some sort of comparison? 15 MR. VANDENBERG: I don't know. 16 MR. HERRICK: Where does 18 parts -- did you say per 17 billion or million? 18 MR. VANDENBERG: Thousand. 19 MR. HERRICK: 18 parts per thousand. Where does 18 20 parts per thousand occur -- well, let me ask you this: 21 Under what historic conditions does 18,000 parts 22 per thousand occur in the Central Delta? 23 MR. VANDENBERG: I'm not aware of that. 24 MR. HERRICK: And have you reviewed the modeling done 25 by DWR for the South Delta Barrier Program? CAPITOL REPORTERS (916) 923-5447 5643 1 MR. VANDENBERG: Yes, I have. 2 MR. HERRICK: And what levels of TDS, then, do you 3 think result in some water of worse quality than this 18 4 parts per thousand that you say is a cutoff? 5 MR. VANDENBERG: I don't know. 6 MR. HERRICK: I'm just trying to follow your thought 7 process in arriving at your conclusions. Mr. Vandenberg, 8 this is table -- excuse me. This is Figure 8 from DWR 9 Exhibit Number -- it's Mr. Ford's testimony. And I'll get 10 that number in one moment, I apologize. But this is Table 11 8 which shows some modeling results that the DWR has done 12 to examine the affects of the barrier program. 13 And as you can see -- you can't see from that, 14 here I'll give you my copy. This is July of a critical 15 year analysis. And the bottom two maps show the TDS 16 numbers with and without the barriers. And so the givens 17 here are a certain flow and water quality coming down the 18 San Joaquin River. And I believe they held export pumping 19 the same. 20 Have you had a chance to look at that? 21 MR. VANDENBERG: Yes. 22 MR. HERRICK: Now, as you can see from the 23 without-barrier instance, if the water quality at Vernalis 24 is 520, which is the bottom right, then, you've got South 25 Delta water qualities of 500, 511, 406 and 204; is that CAPITOL REPORTERS (916) 923-5447 5644 1 correct? 2 MR. VANDENBERG: Yes, it is. 3 MR. HERRICK: And then you've got one other South 4 Delta measuring point, excuse me for not knowing the 5 location, I think that's Brant Bridge which is 305 halfway 6 between Old River and Stockton on the San Joaquin River. 7 You see that one, too? 8 MR. VANDENBERG: Yes, on this figure. 9 MR. HERRICK: And then, again, as without the 10 barriers, as you go down the San Joaquin River you have a 11 measuring point of 134 and then finally one of 124. You 12 see that? 13 MR. VANDENBERG: Yes, I do. 14 MR. HERRICK: Now, if you go to the with-barrier map, 15 I'll say, we can see, again, that they have 520 water at 16 Vernalis. And then if you have the barriers in, and this 17 shows the three tidal barriers, not the head of Old River 18 barrier, you see those on that map? 19 MR. VANDENBERG: Oh, yes. I'm sorry. 20 MR. HERRICK: We see the water quality at Brant 21 Bridge is now 518 as opposed to 305; is that correct? 22 MR. VANDENBERG: According to this figure. 23 MR. HERRICK: And, again, this is one instance of 24 modeling done for July of a critical year. I don't mean to 25 say this is every possible instance. And then as you go up CAPITOL REPORTERS (916) 923-5447 5645 1 you reach 197, do you see that? 2 MR. VANDENBERG: Yes, I do. 3 MR. HERRICK: And that 197 location corresponded to 4 that 134 in the without-barrier proposal? 5 MR. VANDENBERG: That's right. 6 MR. HERRICK: And the 124 is the same on both; is 7 that correct? 8 MR. VANDENBERG: Yes, it is. 9 MR. HERRICK: So would you agree that if you reroute 10 poor quality San Joaquin River water down the San Joaquin 11 River, not in the South Delta but route it away from it, 12 into the Central Delta that under this instance anyway, the 13 poor quality San Joaquin River water is completely mixed 14 and diluted by the time it reaches that measuring point at 15 124; is that correct? 16 MR. VANDENBERG: According to this modeling that's 17 what it's showing. I would like to see this similar 18 scenario run with actual monitoring conducted in the Delta 19 to get the exact numbers. This is just but a prediction of 20 what might happen. 21 MR. HERRICK: Well, did you get those monitoring -- 22 get that monitoring data before you developed your 23 biological opinion? 24 MR. VANDENBERG: No, we didn't have that monitoring. 25 MR. HERRICK: So did you base your biological opinion CAPITOL REPORTERS (916) 923-5447 5646 1 on the modeling done by DWR, among other things? 2 MR. VANDENBERG: Among other things. 3 MR. HERRICK: Okay. So what stretch of the San 4 Joaquin River is bad habitat for Delta smelt under these 5 conditions if the San Joaquin River water is apparently 6 fully diluted by the time it reaches that measuring point 7 at 124? 8 MR. VANDENBERG: From Mossdale on down is designated 9 as critical habitat for Delta smelt. So I wouldn't say any 10 of it is bad habitat. I mean it's all designated habitat. 11 MR. HERRICK: Well -- 12 MR. VANDENBERG: It could be made better. 13 MR. HERRICK: We're examining your opinion that 14 rerouting the San Joaquin River flows into the Central 15 Delta is adverse to Delta smelt. Do you recall that? 16 MR. VANDENBERG: Yes. 17 MR. HERRICK: So I'm trying to figure out how you 18 made your decision. How did you compare 18 parts per 19 thousand with 305 TDS, say, is that bad or good, 305 TDS? 20 MR. VANDENBERG: I didn't compare salinity with 21 selenium. What I did is I saw that with the 520 at 22 Vernalis and the barriers you can see that the San Joaquin 23 River, the selenium level stays high, 518 and 197. But it 24 doesn't in the without-barriers. 25 MR. HERRICK: Let's back up. This is a map that CAPITOL REPORTERS (916) 923-5447 5647 1 deals with salinities, that's TDS. 2 MR. VANDENBERG: I'm sorry. 3 MR. HERRICK: Am I on the wrong track here. Did you 4 conclude in your opinion that routing high salinity San 5 Joaquin River water into the Central Delta was good or bad 6 for smelt, I thought you did? 7 MR. VANDENBERG: Was bad for smelt. 8 MR. HERRICK: Okay. Then I'm exploring that, the 9 salinity not the selenium. Okay? Okay. Let's go back to 10 the question then. 11 What level under these scenarios is bad for Delta 12 smelt? And, again, if you don't know 18 -- I'm sorry. Let 13 me start over, I don't want to get too confused here. 14 If you don't know how 18 parts per thousand 15 compares to TDS, how did you make your analysis? Were you 16 provided with parts per thousand data by somebody? 17 MR. VANDENBERG: No, I wasn't. 18 MR. HERRICK: Okay. So how did you arrive at 18,000 19 parts per thousand being bad? 20 MR. VANDENBERG: In the listing of the species in the 21 Federal register it was identified by other experts in the 22 field that the tolerance level of salinity for Delta smelt 23 was at about 18 parts per thousand is what they could tell 24 me. 25 MR. HERRICK: Okay. How did you conclude, then, that CAPITOL REPORTERS (916) 923-5447 5648 1 rerouting this water into the Central Delta is bad for 2 Delta smelt if we don't know how to convert TDS to parts 3 per thousand? 4 MR. VANDENBERG: Simply stated, that if you're taking 5 this poor quality water and you're redirecting it to an 6 area where Delta smelt are more likely to be, then that 7 would not be good for the species. Higher-quality water 8 would be better. And that's what you have under the 9 without-barriers scenario is you have higher-quality water. 10 MR. HERRICK: Well, if -- 11 MR. VANDENBERG: Now with the barriers, you have a 12 lower -- or you have more TDS. 13 MR. HERRICK: If the Delta smelt population is in the 14 South Delta, are they receiving some incremental benefit 15 from this program, then, by having lower salinities? 16 MR. VANDENBERG: Not necessarily, because you have 17 the hydrology. We're not looking at just one thing. We're 18 looking at the combined project. And you have hydrologies 19 that are affecting the species. You have unscreened 20 agricultural diversions that are affecting the species. 21 And you have pumping that's affecting the species. 22 MR. HERRICK: Well, again, we're trying to examine 23 these things each in their turn. 24 MR. VANDENBERG: I don't examine them each in their 25 turn, I examine the whole project. CAPITOL REPORTERS (916) 923-5447 5649 1 MR. HERRICK: Well, without examining them in turn 2 there's no way for somebody else to give input or critique 3 what you do. Are you suggesting that there is no way of 4 your opinion being changed? 5 MR. VANDENBERG: I would have to evaluate all of the 6 components and look at that to see -- to see what happens. 7 I can't look at one individual component without taking 8 into affect everything else that's going on. 9 MR. HERRICK: Well, in your written testimony you 10 seemed to make this specific conclusion, which is: Routing 11 poor quality water into the Central Delta is adverse to 12 fish. 13 I don't believe it said is adverse to fish in 14 combination with other aspects of the program. But you 15 can, certainly, correct me if I'm wrong on that. 16 MR. VANDENBERG: I think what it says is it's adverse 17 to fish. And this in combination with everything else that 18 is going on in the ISDP is jeopardizing to the species. 19 MR. HERRICK: Okay. Would adverse affects to Delta 20 smelt -- would your concerns with regard to adverse affects 21 to Delta smelt beyond that measuring point with the 124, 22 would it disappear if the case is that the water is fully 23 diluted by the time it reaches that spot? 24 MR. VANDENBERG: I would have to look at that in 25 conjunction with everything else that's going on out there, CAPITOL REPORTERS (916) 923-5447 5650 1 the distribution, the abundance and so on. 2 MR. HERRICK: Well, let's stay with how salinities 3 affect fish. If the data shows you that the water is fully 4 diluted by the time it reaches that measuring point, are 5 you still concerned with the salinity affecting fish? 6 MR. VANDENBERG: Yes, because it's still higher in 7 these other places. 8 MR. HERRICK: Okay. But we don't -- from your 9 testimony, then, we don't know how those numbers compare to 10 the level that you think is bad for fish; is that correct? 11 MR. VANDENBERG: That's correct. 12 MR. HERRICK: I mean if those numbers are all less 13 than 18 parts per thousand, would your opinion change as to 14 whether or not that high-salinity water has an adverse 15 affect on fish? 16 MR. VANDENBERG: The 18 parts per thousand is just 17 the very upper limit. They prefer -- Delta smelt prefer a 18 two parts per thousand for rearing and almost fresh -- or 19 freshwater for spawning. I don't -- without knowing how 20 this compares to parts per thousand, it's difficult to 21 answer this question. 22 MR. HERRICK: But you felt confident enough to 23 develop a biological opinion not knowing how to compare 24 those numbers; is that correct? 25 MR. VANDENBERG: Well, I felt confident enough to say CAPITOL REPORTERS (916) 923-5447 5651 1 that if you degrade Central Delta water, that's bad for 2 fish. 3 MR. HERRICK: Is degrading South Delta water bad for 4 fish? 5 MR. VANDENBERG: I think degrading water is bad for 6 fish. 7 MR. HERRICK: How did you compare -- excuse me, let 8 me start over. 9 What is the quantitative difference between the 10 harm to Delta smelt along that stretch of the San Joaquin 11 River as compared to the harm to Delta smelt if the poor 12 quality water goes across the South Delta? 13 MR. VANDENBERG: Well, you have -- in looking at that 14 harm you have to look at the other variables that are going 15 on. 16 MR. HERRICK: But, again, we're just looking at the 17 salinity issue now. 18 MR. VANDENBERG: Yes, but as I explained I don't just 19 look at the salinity. I have to take everything else into 20 account in making a biological opinion. 21 MR. HERRICK: Well, if you're taking everything into 22 account and one thing hurts the smelt, how are we suppose 23 to separate that one thing from the five, six, seven, 24 eight, nine, ten other criteria that you listed? How do we 25 separate that? CAPITOL REPORTERS (916) 923-5447 5652 1 If we haven't put a number on any particular one, 2 how do we know whether or not one is the cause, or two are 3 the cause, or all ten are the cause? 4 MR. VANDENBERG: Well, we know that the project as 5 proposed with everything involved is the cause. And then 6 how do we step back from that? Well, we've got to -- we, 7 essentially, would have to reduce the impacts of all of 8 those, of each component that's causing the adverse affect. 9 MR. HERRICK: Well -- 10 MR. VANDENBERG: I would say reduce -- you know, 11 reduce pumping, reduce barrier placement at times, increase 12 abundance, increase distribution, decrease poor quality 13 water that's entering -- entering the Delta. I mean 14 there's a combination of things that have to be done. 15 MR. HERRICK: But if we had a study that said, these 16 quantities of this certain quality of water doesn't harm 17 the fish, and we had a study that said South Delta barriers 18 don't entrain smelt, wouldn't you want to address the 19 problems that are affecting the fish rather than two things 20 that aren't affect the fish? I mean don't we have to 21 separate these? 22 MR. VANDENBERG: I don't think the barriers entrain 23 fish. I don't think I've ever said that. 24 MR. HERRICK: I'm sorry, I meant to say agricultural 25 diversions. But your testimony is suggesting to me that CAPITOL REPORTERS (916) 923-5447 5653 1 you can't separate these issues, you have to address them 2 all. 3 But I'm having a hard time finding the data that 4 supports every one of the issues. So how do we examine 5 this, or do we just take it on faith? How do we examine 6 your conclusions? 7 MR. VANDENBERG: I guess we need -- or we would need 8 additional study, additional monitoring. 9 MR. HERRICK: But you're confident in saying -- 10 MR. VANDENBERG: I'm confident in saying that 11 degrading the water quality in the Central Delta is bad for 12 the fish. 13 MR. HERRICK: But you're confident in saying that's 14 substantially worse than degrading that same habitat in the 15 South Delta? 16 MR. VANDENBERG: I'm not. 17 MR. HERRICK: In other words, to conclude that the 18 program is causing jeopardy you have to conclude that the 19 results of the project are worse than the existing 20 situation. 21 How do you determine that it's worse for fish if 22 the water goes north instead of northwest? 23 MR. BRANDT: Objection. Argumentative. And -- 24 argumentative. I'll leave it at that for now. 25 C.O. CAFFREY: It's a fine time to be bringing it up. CAPITOL REPORTERS (916) 923-5447 5654 1 MR. BRANDT: Yeah. 2 C.O. CAFFREY: Do you understand the question? 3 MR. VANDENBERG: Not fully. 4 C.O. CAFFREY: All right. You want to try again, 5 Mr. Herrick? 6 MR. HERRICK: Yes. Mr. Vandenberg, you'd agree that 7 in order to arrive at your opinion expressed in the 8 biological opinion and your written testimony, you had to 9 determine that it was reasonably certain to occur that 10 there would be adverse impacts to Delta smelt; is that 11 correct? 12 MR. VANDENBERG: That's correct. 13 MR. HERRICK: And in order to determine that there 14 would be adverse impacts, you had to compare that against 15 some other situation; is that correct? 16 MR. VANDENBERG: That's correct. 17 MR. HERRICK: And that some other situation is some 18 sort of base case; is that correct? 19 MR. VANDENBERG: That's correct. 20 MR. HERRICK: And the base case in this instance is 21 no South Delta barriers; is that correct? 22 MR. VANDENBERG: That is also correct. 23 MR. HERRICK: How did you determine that it's worse 24 for Delta smelt if the San Joaquin River goes north as 25 opposed to if it goes northwest? CAPITOL REPORTERS (916) 923-5447 5655 1 MR. VANDENBERG: If it goes northwest -- okay. 2 First, again, it depends on the distribution. And when the 3 adults begin their upstream migration, they start from the 4 bay and continue up upstream. They can go up the 5 Sacramento. They can go into the Central Delta, or they 6 can go towards the San Joaquin. 7 With the barrier in, that degraded water is moving 8 to the Central Delta where fish are likely to come in 9 contact with this during their migration up north of the 10 Delta in the Central Delta, or in the South Delta. Without 11 the barrier, the majority of that water heads towards the 12 export facilities. 13 So for fish it would be better to have that lower 14 quality water going towards the export facilities than in 15 the middle of their habitat. 16 MR. HERRICK: I don't mean to be argumentative, I'm 17 just trying to explore this. I understand your last answer 18 to be the conclusion. And I understand your point. What 19 I'm trying to find out is how you quantified that in order 20 to determine that, in your opinion, it's reasonably likely 21 that it's worse going one way than the other way. 22 How did you determine that? What did you compare 23 and against what did you compare it? 24 MR. VANDENBERG: Well, I used the modeling from -- 25 provided from the Department of Water Resource and their CAPITOL REPORTERS (916) 923-5447 5656 1 particle tracking models. And it shows that the water 2 is -- with the barriers, it shows that water is -- that 3 poorer quality water is sent down the San Joaquin. I mean 4 it shows it right here as well. 5 MR. HERRICK: Okay. Did you quantify, in any 6 regards, the harm to the Delta smelt if the San Joaquin 7 River flows are directed towards Stockton? 8 MR. VANDENBERG: Did I quantify how Delta smelt would 9 be affected from one scenario over to the other? 10 MR. HERRICK: Did you quantify the affect to Delta 11 smelt if poor quality San Joaquin River water is redirected 12 towards Stockton? 13 MR. VANDENBERG: I didn't say that -- no, I didn't. 14 MR. HERRICK: Did you quantify the harm to Delta 15 smelt if poor quality San Joaquin River flows flow through 16 the South Delta channels? 17 MR. VANDENBERG: No, I didn't. 18 MR. HERRICK: Again, then, how did you determine that 19 Delta smelt are adversely affected by redirecting the San 20 Joaquin River flows if you didn't quantify the two things 21 that you're comparing? 22 MR. VANDENBERG: When you're asking if I quantified, 23 how I understand that is without the barriers were X number 24 of Delta smelt being affected? And, then, with the 25 barriers, was X plus some other number, Y, amount of Delta CAPITOL REPORTERS (916) 923-5447 5657 1 smelt being affected? No, I didn't do that. 2 But what I did is I concluded that if you put the 3 head of Old River barrier in, or even the three 4 agricultural barriers in, a larger amount of degraded water 5 heads towards the Central Delta. And I concluded that that 6 could not be good for fish. 7 MR. HERRICK: Did you make any sort of calculation as 8 to the area of critical Delta smelt habitat that has 9 degraded water under the barrier- and without-barrier 10 scenarios? 11 MR. VANDENBERG: I didn't. 12 MR. HERRICK: If the degraded habitat, due to 13 salinity under the barrier project, was significantly less 14 than the degraded habitat in the without-barrier situation, 15 would that change your opinion? 16 MR. VANDENBERG: Again, it would depend on other 17 factors going on out there, the distribution and the 18 pumping and the agricultural diversions, how they're 19 operating. 20 MR. HERRICK: Well, again, the question is dealing 21 with salinity though. I'm trying to look at these 22 instances that led to your conclusion. So I'm not -- 23 MR. VANDENBERG: And, again, I'm telling you that I 24 don't look at one component individually. I look at all 25 the components and then I make my conclusion. CAPITOL REPORTERS (916) 923-5447 5658 1 MR. HERRICK: Your written testimony talks about 2 increased scour resulting from the ISDP; is that correct? 3 MR. VANDENBERG: That's correct. 4 MR. HERRICK: And where does this increased scour 5 occur? 6 MR. VANDENBERG: Throughout the Delta. Mainly I 7 looked at Turner and Columbia Cut. 8 MR. HERRICK: And how many years have we had the 9 South Delta barriers in operation, do you know? 10 MR. VANDENBERG: Approximately eight years. 11 MR. HERRICK: And during that eight-year period we've 12 had a few high-flow years and a few low-flow years; is that 13 correct? 14 MR. VANDENBERG: That's correct. 15 MR. HERRICK: I don't know if you had any medium 16 years. But what sort of scour has occurred as a result of 17 operation of the barriers? 18 MR. VANDENBERG: The -- I haven't received any 19 information on that. 20 MR. HERRICK: So what leads you to conclude that 21 there is, or will be scour under the ISDP? 22 MR. VANDENBERG: Because in the modeling that I 23 reviewed for the Temporary Barriers Project, it talked 24 about the barriers versus the no-barrier scenario and 25 showed that with the barrier flows in Turner and Columbia CAPITOL REPORTERS (916) 923-5447 5659 1 Cut -- and I'm trying to find out exactly, but they 2 increased substantially. 3 Modeling shows that a barrier installation would 4 increase flows through Columbia Cut by 46, 64 and 88 5 percent in critical, below normal and wet years, 6 respectfully. Turner Cut flows would be increased by 25, 7 40 and 53 percent under these same conditions. 8 So with that it led me to believe that with the 9 barriers installed it increases the velocity through these 10 channels and causes scour to shovel water habitat. 11 MR. HERRICK: Well, within the last eight years we've 12 had a number of low-flow years, haven't we? 13 MR. VANDENBERG: We've had some wet years. We've had 14 some not so wet years. 15 MR. HERRICK: Did those -- were there increased flows 16 in Turner Cut during those years, those low-flow years? 17 MR. VANDENBERG: I've not seen the monitoring results 18 to show those increased flows. 19 MR. HERRICK: When did you write your draft jeopardy 20 opinion for the ISDP? 21 MR. VANDENBERG: In 1998, April of this year. 22 MR. HERRICK: Didn't you want to see whether or not 23 there was actually scour as a result of the project as 24 opposed to some modeling results which you refer to? 25 MR. VANDENBERG: One of the requirements of the CAPITOL REPORTERS (916) 923-5447 5660 1 Temporary Barriers Program was to have DWR provide us that 2 data. I have not seen that data. 3 MR. HERRICK: What's the difference to the scour in 4 Turner Cut if you have a high-flow flood year as opposed to 5 an increased flow in a low-flow year? 6 MR. VANDENBERG: One's natural and one is not. I 7 mean if you have high flows without barriers, that's a 8 natural situation. The Delta smelt adapt to that. 9 Naturally, if you have an artificial situation with 10 barriers in and it increases the flows, that's an affect. 11 MR. HERRICK: Is it okay for there to be scour in 12 Turner Cut if you have high flows? 13 MR. VANDENBERG: With the barriers? 14 MR. HERRICK: Without the barriers. 15 MR. VANDENBERG: That's natural conditions. 16 MR. HERRICK: Why do you conclude that an unnatural 17 flow condition is somehow quantifiably worse than a natural 18 flow condition? 19 MR. VANDENBERG: Because those increase flows may not 20 necessarily be there if the barriers aren't there. You may 21 have one condition where the you're getting increased 22 scour -- or rather you're not getting increased scour. You 23 put the barriers in and you get increased scour. 24 MR. HERRICK: I don't understand that. Let me just 25 ask one more question. What data do you base your CAPITOL REPORTERS (916) 923-5447 5661 1 conclusion of increased scour on that shows that the model 2 increased flows will actually result in scour? 3 MR. VANDENBERG: I concluded that based on looking at 4 the modeling reports, there's increased scour -- excuse me, 5 there's increased velocities through these channels. And 6 with increased velocities it's likely to follow that 7 there's increased scour. 8 C.O. STUBCHAER: Mr. Chairman? 9 C.O. CAFFREY: Yes, Mr. Stubchaer. 10 C.O. STUBCHAER: Do you know that the velocities in 11 the channels without the barriers are right at the edge of 12 scouring velocities? 13 MR. VANDENBERG: I'm sorry? 14 C.O. STUBCHAER: Do you know that the velocities 15 through the channels, we're talking about scour, are at the 16 point of incipient scour without the barriers in and that 17 the barriers pushes them over the edge into a scouring 18 velocity? 19 MR. VANDENBERG: I'm saying with the barriers 20 velocity through those channels is increased. 21 C.O. STUBCHAER: Is it increased to a scouring 22 velocity, or is it possible that it could be well below 23 scouring velocity to increased velocity? 24 MR. VANDENBERG: It's possible that it could by the 25 very nature of those increased velocities in a situation CAPITOL REPORTERS (916) 923-5447 5662 1 without the barriers you may have some flow going through 2 there. That necessarily -- that may not necessarily be 3 scouring the channels. You put the barriers in and we know 4 from the model -- the modeling that's been conducted that 5 those flows dramatically increase. And with a dramatic 6 increase in velocities, it follows that there's likely to 7 be scour. 8 C.O. STUBCHAER: Well, I'm sorry for the 9 interruption, Mr. Herrick, from the point of view of a 10 hydraulic engineer there's something called a scouring 11 velocity. And to say that the scouring velocity might be 12 four feet per second and the flow without the barriers was 13 two feet per second increased to three feet per second, is 14 there still scour? Is it going to be scour, or is it still 15 nonscouring? 16 And I guess my question was: Do you know what the 17 scour velocities are in these channels and whether the 18 increased velocities are above or below the scouring 19 velocities? 20 MR. VANDENBERG: I don't know. 21 C.O. STUBCHAER: You don't know. Okay. 22 MR. HERRICK: Mr. Vandenberg, in your testimony 23 starting on Page 3, I believe that's where you set forth, 24 or analyze DWR's monitoring reports regarding the quality 25 of water upstream and downstream of the barriers; is that CAPITOL REPORTERS (916) 923-5447 5663 1 correct? 2 MR. VANDENBERG: That's correct. 3 MR. HERRICK: Now, I had a hard time understanding 4 your point here. Are you saying that the barrier program 5 is not effective with regard to water quality? Is that 6 your conclusion? 7 MR. VANDENBERG: My conclusion is drawn from review 8 of these reports and also from the conclusions made by the 9 Department, which states that the overall affects of water 10 quality in this area hardly differed from 1971. 11 MR. HERRICK: What years was this data for? 12 MR. VANDENBERG: This was for -- well, this is the 13 1995 Monitoring Report that we have here, so '94. 14 MR. HERRICK: Is it your understanding that the South 15 Delta barriers are to address water quality in the South 16 Delta during low-flow events? 17 MR. VANDENBERG: It's my understanding that the 18 barriers are to improve water levels in the South Delta, 19 circulation and water quality. 20 MR. HERRICK: But the water quality they're trying to 21 improve is the poor quality San Joaquin River water from 22 coming over into the South Delta; isn't that correct? 23 MR. VANDENBERG: Yeah. 24 MR. HERRICK: I mean it's not your testimony that the 25 barrier program is suppose to increase the water quality of CAPITOL REPORTERS (916) 923-5447 5664 1 the water immediately upstream of the barrier with that 2 downstream of the barrier, is it? 3 MR. VANDENBERG: The proposed project states that the 4 barriers are to improve water quality. It doesn't say, 5 specifically, that the barriers are to improve water 6 quality by keeping San Joaquin water in the San Joaquin. 7 It's stating that it's out to improve water quality. 8 MR. HERRICK: Well, I believe that's exactly what it 9 says in the ISDP/DEIR. Where do you -- 10 MR. VANDENBERG: I'm looking in the temporary 11 barriers opinion. 12 MR. HERRICK: Okay. Did you, for your analysis about 13 water quality, did you analyze any with- and 14 without-barrier scenarios as has been done on Figure 8 on 15 the overhead? 16 MR. VANDENBERG: Yes. I believe I reviewed the 17 modeling reports by the Department. 18 MR. HERRICK: Okay. Is there any information 19 contained in those modeling results that lead you to 20 believe that there's no change in South Delta water quality 21 as a result of the barrier program? 22 MR. VANDENBERG: The results of the monitoring 23 reports leads me to believe that. 24 MR. HERRICK: Do you understand the monitoring 25 reports to be indications, to be a realtime -- to be a data CAPITOL REPORTERS (916) 923-5447 5665 1 to confirm, or deny the modeling results? 2 MR. VANDENBERG: The monitoring reports were required 3 to confirm the -- what was coming out of the modeling. 4 MR. HERRICK: Well, isn't it correct to say that the 5 monitoring reports determine whether or not the barriers 6 had some sort of water quality affect not modeled? 7 MR. VANDENBERG: The monitoring reports provided the 8 data that was actually occurring in the Delta from -- or 9 with the project. And so what it provided was actual water 10 quality criteria that was occurring with the project with 11 the barriers installed. 12 MR. HERRICK: Just for the record, Mr. Chairman, DWR 13 Exhibit 37 is the one from which Figure 8 has been taken. 14 C.O. CAFFREY: All right. Thank you. 15 MR. HERRICK: Appreciate DWR giving me that. 16 One of the other things you state in your opinion 17 is that the barriers reduce the affect of the pulse flow; 18 is that correct? 19 MR. VANDENBERG: Yes. 20 MR. HERRICK: And when you say "pulse flow," to what 21 are you referring? 22 MR. VANDENBERG: The April/May pulse flow. 23 MR. HERRICK: And what affects are you referring to 24 that you say are decreased? 25 MR. VANDENBERG: One of the intents of the pulse flow CAPITOL REPORTERS (916) 923-5447 5666 1 was to move Delta smelt that were in the Southern Delta out 2 towards the bay. So if you -- well, that map doesn't show 3 it, but if you have smelt in the -- 4 MR. BRANDT: Let the record reflect Mr. Herrick has 5 just put back up South Delta Water Agency Exhibit Number? 6 MR. HERRICK: 56. 7 MR. VANDENBERG: Could you move that up? 8 C.O. CAFFREY: Thank you, Mr. Brandt. 9 MR. VANDENBERG: The intent of the pulse flow was if 10 you had smelt in this region here -- 11 MR. HERRICK: And by that you're referring to an area 12 around Woodward Island? 13 MR. VANDENBERG: Yeah. 14 MR. HERRICK: Okay. 15 MR. VANDENBERG: That the flows down the San Joaquin, 16 in part, would help move the Delta smelt in like Middle 17 River, that pulse would help push those out towards the 18 bay, or rather Old River as well. You know down here the 19 pulse flow would move and push those fish out. 20 By putting the head of Old River barrier in, the 21 water is contained in the San Joaquin River and reduces 22 that positive affect of moving those fish towards the bay, 23 because it keeps the water in the San Joaquin River. 24 MR. HERRICK: Doesn't the San Joaquin River, then, go 25 over and push the Central Delta water toward the bay? CAPITOL REPORTERS (916) 923-5447 5667 1 MR. VANDENBERG: It does, but it doesn't -- it 2 wouldn't push fish that were around Palm Tract towards the 3 bay. It would push those -- likely with the combination of 4 pumping, it would pull those towards the export facilities. 5 MR. HERRICK: What's the difference between the 6 hydrologic pressure of the San Joaquin River going down 7 partially down Old River and Middle River as opposed to 8 most of it going down San Joaquin River? 9 MR. VANDENBERG: The hydrologic pressure? 10 MR. HERRICK: What is the difference of hydrologic 11 pressures on Central Delta waters? 12 MR. VANDENBERG: Well, I'm talking about fish. The 13 intent of the pulse flow was to move those fish out of the 14 Southern Delta, Central Delta out towards the bay. By 15 putting the head of Old River barrier in, you're not 16 accomplishing that, because there's no water going down Old 17 River and Middle River that would address those -- or get 18 to those fish that are in that area. 19 MR. HERRICK: Are you saying the intent of the pulse 20 flow is to push elevated amounts of water through Middle 21 and Old River? 22 MR. VANDENBERG: No. I'm saying the intent of the 23 pulse flow is to move Delta smelt out of the Southern Delta 24 if the distribution of the species warrants that. 25 MR. HERRICK: What if the smelt are centered more CAPITOL REPORTERS (916) 923-5447 5668 1 around Mandeville Island than Woodward Island, does that 2 change your opinion? 3 MR. VANDENBERG: I'm looking -- 4 MR. HERRICK: Straight up. 5 MR. VANDENBERG: Mandeville and which? 6 MR. HERRICK: We start off by saying you noted an 7 area around Woodward Island, and that's how you describe 8 your comparison. What if the smelt population is more 9 towards the center of the center and we say somewhere 10 around Mandeville Island, does that change your opinion? 11 MR. VANDENBERG: Absent a barrier it would still move 12 those fish at Mandeville Island out towards the bay. With 13 the barrier it may move Delta smelt at Mandeville Island 14 out towards the bay, but with the barrier it's not, 15 necessarily, going to move the fish that are by Woodward 16 Tract out towards the bay. 17 So it depends on the distribution. If the Delta 18 smelt are in the Southern Delta, a pulse is needed to move 19 those fish out towards the bay. And with the head of Old 20 River that pulse is reduced, head of Old River barrier. 21 MR. HERRICK: Let's assume that the net outflow under 22 the pulse condition remain the same with or without the 23 barrier, the head of Old River barrier, does that change 24 your opinion? 25 MR. VANDENBERG: If you have a set flow down the San CAPITOL REPORTERS (916) 923-5447 5669 1 Joaquin -- 2 MR. HERRICK: No. Excuse me. No. If you have the 3 same net outflow say at Chipps Island, would that change 4 your opinion? 5 MR. VANDENBERG: The intent of the pulse is to carry 6 those fish that are in the Delta out. You can have -- you 7 can have the isohaline at Chipps Island. And you can have 8 Delta smelt in the Central Delta, or Southern Delta. It 9 doesn't matter if -- I mean I think it does matter. 10 Certainly, there needs to be a San Joaquin River component 11 to move those fish out. 12 If you had -- if you had no water flowing down the 13 San Joaquin and only water flowing down the Sacramento 14 maintaining the two parts per thousand, that's not going to 15 do anything to move the fish that are in the Central Delta 16 out towards the bay. You need that component from the San 17 Joaquin to move those fish. 18 MR. HERRICK: In reaching your conclusion did you 19 examine the changes in the velocities of the Central Delta 20 waters in order to conclude that redirecting the flows 21 results in harm to Delta smelt? 22 MR. VANDENBERG: I didn't look at the -- I looked at 23 the -- how the flows were altered by the placement of the 24 head of Old River barrier. 25 MR. HERRICK: In your testimony you state that the CAPITOL REPORTERS (916) 923-5447 5670 1 poor quality San Joaquin River water is being redirected 2 rather than addressed. What do you mean by "addressed"? 3 MR. VANDENBERG: Well, what I was trying to get at in 4 that is that rather than just taking that water that's high 5 in salinity and sending it, essentially, to someone else's 6 backyard for dilution, I was trying to get at those that 7 are responsible for causing that degradation of the water 8 should be implementing some sort of protection to reduce -- 9 to reduce that water in the first place. 10 MR. HERRICK: Do you know if that's the Department of 11 the Interior's position? 12 MR. VANDENBERG: It's in the opinion and that opinion 13 is signed. 14 MR. HERRICK: It's in the Biological Opinion? 15 MR. VANDENBERG: Yes, it is. 16 MR. HERRICK: But you think there's a quantifiable 17 difference with regard to the affect on Delta smelt between 18 the San Joaquin River water going through the South Delta 19 as opposed to going through the Central Delta? 20 MR. VANDENBERG: Can you repeat that, please? 21 MR. HERRICK: You think there is a quantifiable 22 difference between the affects on the Delta smelt if the 23 San Joaquin River flows go through the South Delta as 24 opposed to going through the Central Delta? 25 MR. VANDENBERG: I think that flows that go through CAPITOL REPORTERS (916) 923-5447 5671 1 the Central and South Delta is more beneficial to the 2 species than flows going just through the Central Delta. 3 MR. HERRICK: In your comparison -- Mr. Chairman, I 4 think I can finish in five minutes. I apologize to 5 everybody. 6 C.O. CAFFREY: That's okay. Go ahead, Mr. Herrick. 7 MR. HERRICK: In your opinion that redirecting the 8 San Joaquin River to the Central Delta is worse for Delta 9 smelt than not, did you examine the net flows as compared 10 to tidal flows in that area? 11 MR. VANDENBERG: Yes, I did. 12 MR. HERRICK: And give us some rough numbers on that. 13 How does -- how do the large tidal flows that occur in that 14 area compare to these changed flows due to the project? 15 MR. VANDENBERG: I don't have those numbers right 16 offhand. 17 MR. HERRICK: Can you give us a general idea? What 18 sort of relationship is there between these changed flows 19 and the tidal flows? 20 MR. VANDENBERG: When I reviewed the modeling results 21 there is shown to be changes both in tidal flows and in 22 just downstream flows with the installation of the 23 barriers. 24 MR. HERRICK: What sort of volume of water do we have 25 coming into the Central Delta under tidal flows on any CAPITOL REPORTERS (916) 923-5447 5672 1 given day? 2 MR. VANDENBERG: That really depends. 3 MR. HERRICK: Well, isn't it hundreds of thousands of 4 acre-feet of water slushing back and forth every day, a 5 couple times a day? 6 MR. VANDENBERG: Yes. 7 MR. HERRICK: How does that compare with the pulse 8 flow at Vernalis of, say, 3400 csf? 9 MR. VANDENBERG: If the Delta is draining, or there 10 is an ebb tide that's moving that water out and you combine 11 that with a pulse flow to help move those Delta smelt out, 12 I think that's a very positive. 13 MR. HERRICK: Don't we have to look at that? What if 14 it's one percent? Let's take a hypothetical, the pulse 15 flow at Vernalis is one percent of the outgoing tide flow, 16 does that change your opinion? 17 MR. VANDENBERG: If the flow at Vernalis is one 18 percent of the total outflow? 19 MR. HERRICK: Of the tidal outflow. 20 MR. VANDENBERG: It, again, would depend on the 21 distribution and the abundance of the species. 22 MR. HERRICK: Is there some percentage at which there 23 would not be a concern to you? The percentage being the 24 relationship between the pulse flow and the tidal flow. 25 MR. VANDENBERG: I think there always would be a CAPITOL REPORTERS (916) 923-5447 5673 1 concern. We'd have to see what the conditions are out in 2 the Delta. 3 MR. HERRICK: But it's your opinion that the South 4 Delta Barrier Program adversely affects the benefits of the 5 pulse flow? 6 MR. VANDENBERG: It's my opinion that the head of Old 7 River barrier, as proposed, diminishes the affects of the 8 pulse flow down the San Joaquin. 9 MR. HERRICK: Okay. I have one last question. Thank 10 you very much, Mr. Chairman. That's all. I don't have 11 anything else. 12 C.O. STUBCHAER: He had the gavel in his hand. I was 13 wondering if he was going to -- 14 C.O. CAFFREY: I was going to hit Mr. Stubchaer with 15 it -- 16 C.O. STUBCHAER: Oh. 17 C.O. CAFFREY: -- for saying that. Okay. Let me 18 just ask, Mr. Nomellini, if I may. 19 MR. NOMELLINI: Yes, sir. 20 C.O. CAFFREY: Do you have extensive 21 cross-examination, or just a few questions? The reason I'm 22 asking is because -- 23 MR. NOMELLINI: Well, a lot of the questions have 24 been asked, but I'm going to take at least a half hour, 25 maybe an hour. And if I could be guaranteed clear concise CAPITOL REPORTERS (916) 923-5447 5674 1 answers with no objections, maybe even under an hour. 2 MR. HERRICK: I'll stipulate to that. 3 C.O. CAFFREY: Mr. O'Laughlin? 4 MR. O'LAUGHLIN: Chairman Caffrey, San Joaquin River 5 Group -- and I realize we had a discussion about this 6 previously. I thought I would not have to ask any 7 questions. Hopefully, I can get that resolved tonight, but 8 based on the last 15 minutes of testimony about the impacts 9 of the head of Old River barrier and the purpose of the 10 head of Old River barrier and the benefits, I do have a 11 couple questions that I may need to ask the witness 12 tomorrow. 13 C.O. CAFFREY: Mr. Stubchaer? 14 C.O. STUBCHAER: Mr. Chairman, this brings up the 15 question about the order of cross-examination and waiting 16 until you hear all their cross-examination to try to 17 formulate questions you have. If we do that, I think it's 18 only fair that you do what you did before and that's go 19 back up the order and give all the previous cross-examiners 20 an opportunity to ask a few finishing questions. 21 Otherwise, the order of cross-examination and the game plan 22 that happens is not fair. 23 C.O. CAFFREY: Mr. Brown? 24 MEMBER BROWN: I concur entirely with Mr. Stubchaer, 25 Mr. Chairman. CAPITOL REPORTERS (916) 923-5447 5675 1 C.O. CAFFREY: I think my fellow Board Members raise 2 an interesting point. Of course, we could carry this on in 3 infinitum. 4 Mr. Godwin? 5 MR. GODWIN: What if someone else walks in and hasn't 6 had the opportunity early and then they want to 7 cross-examine? Is that any different than someone wanting 8 to cross-examine later? 9 C.O. STUBCHAER: Mr. Chairman? 10 C.O. CAFFREY: Go ahead, Mr. Stubchaer. 11 C.O. STUBCHAER: What about the persons who went 12 first who just heard answers to cross-examination that they 13 want to examine on now? It's the same issue. 14 MR. O'LAUGHLIN: I realize I've had a discussion 15 previously on this point. I rose at the request and put my 16 name on the list for the purpose of asking questions. At 17 the time none of the testimony of the witness, nor any of 18 the responses had anything to do what my client was 19 interested in. 20 And, unfortunately, until the last five or ten 21 minutes when he linked the head of Old River barrier and 22 the benefits that that was suppose to have on Delta smelt 23 and its diminishment of those affects, that raises a real 24 concern with my clients in regards to the proposal under 25 the San Joaquin River Agreement, which has, as a CAPITOL REPORTERS (916) 923-5447 5676 1 cornerstone, the head of Old River barrier. 2 And I don't want to -- I'm not sandbagging anybody 3 here, but we've all sat here all day, that was never an 4 issue until the last ten minutes. And it wasn't in his 5 testimony either. And I'm afraid I'm doing my clients a 6 huge disservice if I don't rise and ask the Chair for the 7 opportunity to cross-examine the witness on that, because 8 that will go unrefuted into the record. 9 C.O. CAFFREY: Do any of the other parties feel the 10 need to add additional cross-examination to what they've 11 already done, or do any of the parties who haven't 12 cross-examined, besides Mr. O'Laughlin, feel the need? All 13 right. Let's see where you are in terms of this request -- 14 Mr. Herrick? 15 MR. HERRICK: Any objection I might have on the point 16 raised by Mr. Stubchaer would be answered by having 17 Mr. Nomellini go after Mr. O'Laughlin since he could ask 18 those. 19 MR. NOMELLINI: I would suggest that -- I think the 20 ISDP includes the Old River barrier in it. And, therefore, 21 his testimony included that. But from the standpoint of 22 allowing Tim from changing his mind, at this point I think 23 it's okay, provided you ask the people after he's through 24 and after I'm through -- and I don't care if I go before or 25 after, but I think we all ought to have the opportunity, if CAPITOL REPORTERS (916) 923-5447 5677 1 we want, to ask a couple more questions at the end. It may 2 be there are very few questions left to be asked. So I 3 think we're not talking about a huge delay either way. 4 C.O. CAFFREY: And Lord knows we don't want to deal 5 with delays in any of this process. Well, I certainly 6 appreciate the spirit in which Mr. Stubchaer and Mr. Brown 7 make their statement, because you know it is a very 8 important point in terms of fairness. 9 And it isn't to suggest that Mr. O'Laughlin is 10 bringing up any strategies, but we will -- we will take 11 Mr. O'Laughlin first tomorrow, because, actually, the way 12 we had left it, we were going to bring him in as soon as he 13 was ready. So if you still wish to cross-examine, we'll 14 start with you tomorrow, Mr. O'Laughlin. 15 Then we'll go to Mr. Nomellini. And then I will 16 ask after we -- before we go to Staff and Board Members, I 17 will give the other cross-examiners and the other parties 18 an opportunity to ask a few questions if they need to. 19 Ms. Whitney? 20 MS. WHITNEY: South Delta was scheduled to continue 21 their examination tomorrow. They're scheduled to bring 22 their -- I mean Stockton East, sorry. 23 C.O. CAFFREY: They are. I'm hoping what I -- thank 24 you for reminding us. 25 MS. WHITNEY: Are you going to get to them first? CAPITOL REPORTERS (916) 923-5447 5678 1 C.O. CAFFREY: I'm hoping we can get through what I 2 just described in maybe an hour or two and then we can go 3 to Stockton East. 4 Ms. Harrigfeld, did you have something you wanted 5 to add? 6 MS. HARRIGFELD: I wanted a point of clarification. 7 If we were going to have Mr. O'Laughlin and Nomellini 8 first, you had instructed our witnesses, Regional staff 9 people, to come back at 9:00 a.m. So if it's not 9:00 a.m. 10 I need to give them a call. 11 C.O. CAFFREY: All right. On that note let me ask, 12 Mr. O'Laughlin: Assuming, Mr. O'Laughlin, you are going to 13 cross-examine and that Mr. Vandenberg, having had a good 14 night's rest will be crisp in his answers, how much time do 15 you estimate your cross-examination will take? 16 MR. O'LAUGHLIN: No more than 15 minutes. 17 C.O. CAFFREY: Okay. So I would say between 18 Mr. Nomellini and Mr. O'Laughlin we might be looking at a 19 maximum of an hour. Is that fair, gentlemen? 20 MR. NOMELLINI: I'd say an hour -- his 15 and my 21 hour. 22 C.O. CAFFREY: Okay. An hour and 15 minutes. 23 MR. O'LAUGHLIN: Takes us to the break. 24 C.O. CAFFREY: I don't hold you to this, Mr. Brandt, 25 because you haven't heard all the cross-examination at this CAPITOL REPORTERS (916) 923-5447 5679 1 point, but at this point do you think you're going to have 2 redirect? 3 MR. BRANDT: There is a possibility. 4 C.O. CAFFREY: There is a possibility. Let's start 5 tomorrow with a continuation of this. But if at 10:30 it 6 looks like we have a ways to go, we'll go back to the other 7 panel of Ms. Harrigfeld's just because those -- 8 MR. BRANDT: If I may? 9 C.O. CAFFREY: Yes. 10 MR. BRANDT: Another option is we will not -- our 11 other witness will not be available until Thursday. So we 12 will, in any case, need to break up our case and go on on 13 Thursday. 14 C.O. CAFFREY: That is probably workable, isn't it 15 is? Is that what you were about to say, Mr. O'Laughlin? 16 MR. O'LAUGHLIN: That's fine. Stockton East also has 17 Mr. Lowell Ploss and Mr. Delamore to call still in their 18 case. So we could -- plus Mr. Steffania, the manager. So 19 that could probably take up most of the day. And if this 20 witness wanted to come back -- 21 C.O. CAFFREY: That's a good point. Excuse me for 22 talking over you, Mr. O'Laughlin. I think you raise a good 23 point. Perhaps, it makes better sense to start in the 24 morning with Stockton East and come back with the rest of 25 the entirety. CAPITOL REPORTERS (916) 923-5447 5680 1 MR. NOMELLINI: I've got another idea, why don't we 2 finish with this line of questioning and then call the 3 people at the Regional Board about a half hour before we 4 expect them to arrive, or an hour, it may end up near noon 5 and see if they can't come over at that time? It probably 6 would be more convenient to them. 7 C.O. CAFFREY: I don't know that that's more 8 convenient, just tell them to be here at the start of the 9 day and let's get going. But if the point that you're 10 trying to make is all of this is fresh in our minds and we 11 ought to get on with it and complete it, that has its 12 enticements as well. 13 Do you have any objection doing it that way as 14 Mr. Nomellini suggests, Mr. Brandt? 15 MR. BRANDT: We can do it either way. I'm torn on 16 that. In some ways I'd like to -- 17 C.O. CAFFREY: Do you have a scheduling problem, 18 Mr. Nomellini? 19 MR. NOMELLINI: No, not at all. The continuity of 20 this testimony is going to be lost. We already lost the 21 continuity in the Regional Board testimony. That's my only 22 point. And I don't really want to push it. 23 C.O. CAFFREY: In consultation with my fellow Board 24 Members they want to continue with this witness. So what 25 we will do is we will start tomorrow morning, finish the CAPITOL REPORTERS (916) 923-5447 5681 1 cross-examination, finish this case. 2 And, Ms. Harrigfeld, could you have your witnesses 3 available by phone and when it looks like we have half an 4 hour, 45 minutes left you can give them a call? Does that 5 work? 6 MS. HARRIGFELD: That works. That's fine. 7 C.O. CAFFREY: Thank you. Hopefully, we'll get by 8 this by mid morning tomorrow, but I'm not making any 9 predictions. We will see you all here tomorrow morning at 10 9:00 a.m. Thank you. 11 (The proceedings concluded at 4:14 p.m.) 12 ---oOo--- 13 14 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 5682 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 5454 through 5682 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 31st day of 14 October, 1998. 15 16 ________________________________ MARY R. GALLAGHER, CSR #10749 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 5683