5684 01 02 03 04 05 STATE WATER RESOURCES CONTROL BOARD 06 07 08 09 10 PUBLIC HEARING 11 12 13 13 1998 BAY-DELTA WATER RIGHTS HEARING 14 15 16 17 HELD AT: 18 BONDERSON BUILDING 18 901 P STREET 19 SACRAMENTO, CALIFORNIA 19 20 20 21 21 WEDNESDAY, OCTOBER 28, 1998 22 9:00 A.M. 22 23 23 24 24 Reported by: ESTHER F. WIATRE 25 CSR NO. 1564 25 5685 01 APPEARANCES 01 BOARD MEMBERS: 02 02 JOHN CAFFREY, COHEARING OFFICER 03 JAMES STUBCHAER, COHEARING OFFICER 03 JOHN W. BROWN 04 MARY JANE FORSTER 04 MARC DEL PIERO 05 05 STAFF MEMBERS: 06 06 WALTER PETTIT, EXECUTIVE DIRECTOR 07 VICTORIA WHITNEY, CHIEF BAY-DELTA UNIT 07 THOMAS HOWARD, SUPERVISING ENGINEER 08 08 COUNSEL: 09 09 WILLIAM R. ATTWATER, CHIEF COUNSEL 10 BARBARA LEIDIGH 10 11 11 12 12 13 13 14 14 15 15 16 16 17 17 18 18 19 19 20 20 21 21 22 22 23 23 24 24 25 25 5686 01 REPRESENTATIVES 01 02 PRINCETON CODORA GLENN IRRIGATION DISTRICT, et al.: 02 03 FROST, DRUP & ATLAS 03 134 West Sycamore Street 04 Willows, California 95988 04 BY: J. MARK ATLAS, ESQ. 05 05 JOINT WATER DISTRICTS: 06 06 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON: 07 P.O. BOX 1679 07 Oroville, California 95965 08 BY: WILLIAM H. BABER III, ESQ. 08 09 CALIFORNIA SPORTFISHING PROTECTION ALLIANCE: 09 10 ROBERT J. BAIOCCHI 10 P.O. Box 357 11 Quincy, California 11 12 BELLA VISTA WATER DISTRICT: 12 13 BRUCE L. BELTON, ESQ. 13 2525 Park Marina Drive, Suite 102 14 Redding, California 96001 14 15 WESTLANDS WATER DISTRICT: 15 16 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 16 400 Capitol Mall, 27th Floor 17 Sacramento, California 95814 17 BY: THOMAS W. BIRMINGHAM, ESQ. 18 and 18 AMELIA THOMAS, ESQ. 19 19 THE BAY INSTITUTE OF SAN FRANCISCO: 20 20 GARY BOBKER 21 55 Shaver Street, Suite 330 21 San Rafael, California 94901 22 22 CITY OF ANTIOCH, et al.: 23 23 FREDERICK BOLD, JR., ESQ. 24 1201 California Street, Suite 1303 24 San Francisco, California 94109 25 25 5687 01 REPRESENTATIVES 01 02 LEAGUE OF WOMEN VOTERS: 02 03 ROBERTA BORGONOVO 03 2480 Union Street 04 San Francisco, California 94123 04 05 UNITED STATES DEPARTMENT OF THE INTERIOR: 05 06 OFFICE OF THE SOLICITOR 06 2800 Cottage Way, Room E1712 07 Sacramento, California 95825 07 BY: ALF W. BRANDT, ESQ. 08 CALIFORNIA URBAN WATER AGENCIES: 08 09 BYRON M. BUCK 09 455 Capitol Mall, Suite 705 10 Sacramento, California 95814 10 11 RANCHO MURIETA COMMUNITY SERVICES DISTRICT: 11 12 MCDONOUGH, HOLLAND & ALLEN 12 555 Capitol Mall, 9th Floor 13 Sacramento, California 95814 13 BY: VIRGINIA A. CAHILL, ESQ. 14 14 CALIFORNIA DEPARTMENT OF FISH AND GAME: 15 15 OFFICE OF ATTORNEY GENERAL 16 1300 I Street, Suite 1101 16 Sacramento, California 95814 17 BY: MATTHEW CAMPBELL, ESQ. 17 18 NATURAL RESOURCES DEFENSE COUNCIL: 18 19 HAMILTON CANDEE, ESQ. 19 71 Stevenson Street 20 San Francisco, California 94105 20 21 ARVIN-EDISON WATER STORAGE DISTRICT, et al.: 21 22 DOOLEY HERR & WILLIAMS 22 3500 West Mineral King Avenue, Suite C 23 Visalia, California 93291 23 BY: DANIEL M. DOOLEY, ESQ. 24 24 25 25 5688 01 REPRESENTATIVES 01 02 SACRAMENTO MUNICIPAL UTILITY DISTRICT: 02 03 LESLIE A. DUNSWORTH, ESQ. 03 6201 S Street 04 Sacramento, California 95817 04 05 SOUTH SAN JOAQUIN IRRIGATION DISTRICT, et al.: 05 06 BRAY, GEIGER, RUDQUIST & NUSS 06 311 East Main Street, 4th Floor 07 Stockton, California 95202 07 BY: STEVEN P. EMRICK, ESQ. 08 08 EAST BAY MUNICIPAL UTILITY DISTRICT: 09 09 EBMUD OFFICE OF GENERAL COUNSEL 10 375 Eleventh Street 10 Oakland, California 94623 11 BY: FRED S. ETHERIDGE, ESQ. 11 12 GOLDEN GATE AUDUBON SOCIETY: 12 13 ARTHUR FEINSTEIN 13 2530 San Pablo Avenue, Suite G 14 Berkeley, California 94702 14 15 CONAWAY CONSERVANCY GROUP: 15 16 UREMOVIC & FELGER 16 P.O. Box 5654 17 Fresno, California 93755 17 BY: WARREN P. FELGER, ESQ. 18 18 THOMES CREEK WATER ASSOCIATION: 19 19 THOMES CREEK WATERSHED ASSOCIATION 20 P.O. Box 2365 20 Flournoy, California 96029 21 BY: LOIS FLYNNE 21 22 COURT APPOINTED REPS OF WESTLANDS WD AREA 1, et al.: 22 23 LAW OFFICES OF SMILAND & KHACHIGIAN 23 601 West Fifth Street, Seventh Floor 24 Los Angeles, California 90075 24 BY: CHRISTOPHER G. FOSTER, ESQ. 25 25 5689 01 REPRESENTATIVES 01 02 CITY AND COUNTY OF SAN FRANCISCO: 02 03 OFFICE OF THE CITY ATTORNEY 03 1390 Market Street, Sixth Floor 04 San Francisco, California 94102 04 BY: DONN W. FURMAN, ESQ. 05 05 CAMP FAR WEST IRRIGATION DISTRICT, et al.: 06 06 DANIEL F. GALLERY, ESQ. 07 926 J Street, Suite 505 07 Sacramento, California 95814 08 08 BOSTON RANCH COMPANY, et al.: 09 09 J.B. BOSWELL COMPANY 10 101 West Walnut Street 10 Pasadena, California 91103 11 BY: EDWARD G. GIERMANN 11 12 SAN JOAQUIN RIVER GROUP AUTHORITY, et al.: 12 13 GRIFFTH, MASUDA & GODWIN 13 517 East Olive Street 14 Turlock, California 95381 14 BY: ARTHUR F. GODWIN, ESQ. 15 15 NORTHERN CALIFORNIA WATER ASSOCIATION: 16 16 RICHARD GOLB 17 455 Capitol Mall, Suite 335 17 Sacramento, California 95814 18 18 PLACER COUNTY WATER AGENCY, et al.: 19 19 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 20 400 Capitol Mall, 27th Floor 20 Sacramento, California 95814 21 BY: JANET GOLDSMITH, ESQ. 21 22 ENVIRONMENTAL DEFENSE FUND: 22 23 DANIEL SUYEYASU, ESQ. 23 and 24 THOMAS J. GRAFF, ESQ. 24 5655 College Avenue, Suite 304 25 Oakland, California 94618 25 5690 01 REPRESENTATIVES 01 02 CALAVERAS COUNTY WATER DISTRICT: 02 03 SIMON GRANVILLE 03 P.O. Box 846 04 San Andreas, California 95249 04 05 CHOWCHILLA WATER DISTRICT, et al.: 05 06 GREEN, GREEN & RIGBY 06 P.O. Box 1019 07 Madera, California 93639 07 BY: DENSLOW GREEN, ESQ. 08 08 CALIFORNIA FARM BUREAU FEDERATION: 09 09 DAVID J. GUY, ESQ. 10 2300 River Plaza Drive 10 Sacramento, California 95833 11 11 SANTA CLARA VALLEY WATER DISTRICT: 12 12 MORRISON & FORESTER 13 755 Page Mill Road 13 Palo Alto, California 94303 14 BY: KEVIN T. HAROFF, ESQ. 14 15 CITY OF SHASTA LAKE: 15 16 ALAN N. HARVEY 16 P.O. Box 777 17 Shasta Lake, California 96019 17 18 COUNTY OF STANISLAUS: 18 19 MICHAEL G. HEATON, ESQ. 19 926 J Street 20 Sacramento, California 95814 20 21 GORRILL LAND COMPANY: 21 22 GORRILL LAND COMPANY 22 P.O. Box 427 23 Durham, California 95938 23 BY: DON HEFFREN 24 24 25 25 5691 01 REPRESENTATIVES 01 02 SOUTH DELTA WATER AGENCY: 02 03 JOHN HERRICK, ESQ. 03 3031 West March Lane, Suite 332 East 04 Stockton, California 95267 04 05 COUNTY OF GLENN: 05 06 NORMAN Y. HERRING 06 525 West Sycamore Street 07 Willows, California 95988 07 08 REGIONAL COUNCIL OF RURAL COUNTIES: 08 09 MICHAEL B. JACKSON, ESQ. 09 1020 Twelfth Street, Suite 400 10 Sacramento, California 95814 10 11 DEER CREEK WATERSHED CONSERVANCY: 11 12 JULIE KELLY 12 P.O. Box 307 13 Vina, California 96092 13 14 DELTA TRIBUTARY AGENCIES COMMITTEE: 14 15 MODESTO IRRIGATION DISTRICT 15 P.O. Box 4060 16 Modesto, California 95352 16 BY: BILL KETSCHER 17 17 SAVE THE SAN FRANCISCO BAY ASSOCIATION: 18 18 SAVE THE BAY 19 1736 Franklin Street 19 Oakland, California 94612 20 BY: CYNTHIA L. KOEHLER, ESQ. 20 21 BATTLE CREEK WATERSHED LANDOWNERS: 21 22 BATTLE CREEK WATERSHED CONSERVANCY 22 P.O. Box 606 23 Manton, California 96059 23 24 24 25 25 5692 01 REPRESENTATIVES 01 02 BUTTE SINK WATERFOWL ASSOCIATION, et al.: 02 03 MARTHA H. LENNIHAN, ESQ. 03 455 Capitol Mall, Suite 300 04 Sacramento, California 95814 04 05 CITY OF YUBA CITY: 05 06 WILLIAM P. LEWIS 06 1201 Civic Center Drive 07 Yuba City 95993 07 08 BROWNS VALLEY IRRIGATION DISTRICT, et al.: 08 09 BARTKEWICZ, KRONICK & SHANAHAN 09 1011 22nd Street, Suite 100 10 Sacramento, California 95816 10 BY: ALAN B. LILLY, ESQ. 11 11 CONTRA COSTA WATER DISTRICT: 12 12 BOLD, POLISNER, MADDOW, NELSON & JUDSON 13 500 Ygnacio Valley Road, Suite 325 13 Walnut Creek, California 94596 14 BY: ROBERT B. MADDOW, ESQ. 14 15 GRASSLAND WATER DISTRICT: 15 16 DON MARCIOCHI 16 22759 South Mercey Springs Road 17 Los Banos, California 93635 17 18 SAN LUIS CANAL COMPANY: 18 19 FLANNIGAN, MASON, ROBBINS & GNASS 19 3351 North M Street, Suite 100 20 Merced, California 95344 20 BY: MICHAEL L. MASON, ESQ. 21 21 STONY CREEK BUSINESS AND LAND OWNERS COALITION: 22 22 R.W. MCCOMAS 23 4150 County Road K 23 Orland, California 95963 24 24 25 25 5693 01 REPRESENTATIVES 01 02 TRI-DAM POWER AUTHORITY: 02 03 TUOLUMNE UTILITIES DISTRICT 03 P.O. Box 3728 04 Sonora, California 95730 04 BY: TIM MCCULLOUGH 05 05 DELANO-EARLIMART IRRIGATION DISTRICT, et al.: 06 06 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 07 P.O. Box 1679 07 Oroville, California 95965 08 BY: JEFFREY A. MEITH, ESQ. 08 09 HUMANE FARMING ASSOCIATION: 09 10 BRADLEY S. MILLER 10 1550 California Street, Suite 6 11 San Francisco, California 94109 11 12 CORDUA IRRIGATION DISTRICT, et al.: 12 13 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 13 P.O. Box 1679 14 Oroville, California 95965 14 BY: PAUL R. MINASIAN, ESQ. 15 15 EL DORADO COUNTY WATER AGENCY: 16 16 DE CUIR & SOMACH 17 400 Capitol Mall, Suite 1900 17 Sacramento, California 95814 18 BY: DONALD B. MOONEY, ESQ. 18 19 GLENN COUNTY FARM BUREAU: 19 20 STEVE MORA 20 501 Walker Street 21 Orland, California 95963 21 22 MODESTO IRRIGATION DISTRICT: 22 23 JOEL MOSKOWITZ 23 P.O. Box 4060 24 Modesto, California 95352 24 25 25 5694 01 REPRESENTATIVES 01 02 PACIFIC GAS & ELECTRIC: 02 03 RICHARD H. MOSS, ESQ. 03 P.O. Box 7442 04 San Francisco, California 94120 04 05 CENTRAL DELTA WATER AGENCY, et al.: 05 06 NOMELLINI, GRILLI & MCDANIEL 06 P.O. Box 1461 07 Stockton, California 95201 07 BY: DANTE JOHN NOMELLINI, ESQ. 08 and 08 DANTE JOHN NOMELLINI, JR., ESQ. 09 09 TULARE LAKE BASIN WATER STORAGE UNIT: 10 10 MICHAEL NORDSTROM 11 1100 Whitney Avenue 11 Corcoran, California 93212 12 12 AKIN RANCH, et al.: 13 13 DOWNEY, BRAND, SEYMOUR & ROHWER 14 555 Capitol Mall, 10th Floor 14 Sacramento, California 95814 15 BY: KEVIN M. O'BRIEN, ESQ. 15 16 OAKDALE IRRIGATION DISTRICT: 16 17 O'LAUGHLIN & PARIS 17 870 Manzanita Court, Suite B 18 Chico, California 95926 18 BY: TIM O'LAUGHLIN, ESQ. 19 19 SIERRA CLUB: 20 20 JENNA OLSEN 21 85 Second Street, 2nd Floor 21 San Francisco, California 94105 22 22 YOLO COUNTY BOARD OF SUPERVISORS: 23 23 LYNNEL POLLOCK 24 625 Court Street 24 Woodland, California 95695 25 25 5695 01 REPRESENTATIVES 01 02 PATRICK PORGANS AND ASSOCIATES: 02 03 PATRICK PORGANS 03 P.O. Box 60940 04 Sacramento, California 95860 04 05 BROADVIEW WATER DISTRICT, et al.: 05 06 DIANE RATHMANN 06 07 FRIENDS OF THE RIVER: 07 08 BETSY REIFSNIDER 08 128 J Street, 2nd Floor 09 Sacramento, California 95814 09 10 MERCED IRRIGATION DISTRICT: 10 11 FLANAGAN, MASON, ROBBINS & GNASS 11 P.O. Box 2067 12 Merced, California 95344 12 BY: KENNETH M. ROBBINS, ESQ. 13 13 CENTRAL SAN JOAQUIN WATER CONSERVATION DISTRICT: 14 14 REID W. ROBERTS, ESQ. 15 311 East Main Street, Suite 202 15 Stockton, California 95202 16 16 METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA: 17 17 JAMES F. ROBERTS 18 P.O. Box 54153 18 Los Angeles, California 90054 19 19 SACRAMENTO AREA WATER FORUM: 20 20 CITY OF SACRAMENTO 21 980 9th Street, 10th Floor 21 Sacramento, California 95814 22 BY: JOSEPH ROBINSON, ESQ. 22 23 23 24 24 25 25 5696 01 REPRESENTATIVES 01 02 TUOLUMNE RIVER PRESERVATION TRUST: 02 03 NATURAL HERITAGE INSTITUTE 03 114 Sansome Street, Suite 1200 04 San Francisco, California 94194 04 BY: RICHARD ROOS-COLLINS, ESQ. 05 05 CALIFORNIA DEPARTMENT OF WATER RESOURCES: 06 06 DAVID SANDINO, ESQ. 07 CATHY CROTHERS, ESQ. 07 P.O. Box 942836 08 Sacramento, California 94236 08 09 FRIANT WATER USERS AUTHORITY: 09 10 GARY W. SAWYERS, ESQ. 10 575 East Alluvial, Suite 101 11 Fresno, California 93720 11 12 KERN COUNTY WATER AGENCY: 12 13 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 13 400 Capitol Mall, 27th Floor 14 Sacramento, California 95814 14 BY: CLIFFORD W. SCHULZ, ESQ. 15 15 SAN JOAQUIN RIVER EXCHANGE CONTRACTORS: 16 16 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON: 17 P.O. Box 1679 17 Oroville, California 95965 18 BY: MICHAEL V. SEXTON, ESQ. 18 19 SAN JOAQUIN COUNTY: 19 20 NEUMILLER & BEARDSLEE 20 P.O. Box 20 21 Stockton, California 95203 21 BY: THOMAS J. SHEPHARD, SR., ESQ. 22 22 CITY OF STOCKTON: 23 23 DE CUIR & SOMACH 24 400 Capitol Mall, Suite 1900 24 Sacramento, California 95814 25 BY: PAUL S. SIMMONS, ESQ. 25 5697 01 REPRESENTATIVES 01 02 ORLAND UNIT WATER USERS' ASSOCIATION: 02 03 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 03 P.O. Box 1679 04 Oroville, California 95965 04 BY: M. ANTHONY SOARES, ESQ. 05 05 GLENN-COLUSA IRRIGATION DISTRICT: 06 06 DE CUIR & SOMACH 07 400 Capitol Mall, Suite 1900 07 Sacramento, California 95814 08 BY: STUART L. SOMACH, ESQ. 08 09 NORTH SAN JOAQUIN WATER CONSERVATION DISTRICT: 09 10 JAMES F. SORENSEN CONSULTING CIVIL ENGINEER, INC. 10 209 South Locust Street 11 Visalia, California 93279 11 BY: JAMES F. SORENSEN 12 12 PARADISE IRRIGATION DISTRICT: 13 13 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 14 P.O. Box 1679 14 Oroville, California 95695 15 BY: WILLIAM H. SPRUANCE, ESQ. 15 16 COUNTY OF COLUSA: 16 17 DONALD F. STANTON, ESQ. 17 1213 Market Street 18 Colusa, California 95932 18 19 COUNTY OF TRINITY: 19 20 COUNTY OF TRINITY - NATURAL RESOURCES 20 P.O. Box 156 21 Hayfork, California 96041 21 BY: TOM STOKELY 22 22 CITY OF REDDING: 23 23 JEFFERY J. SWANSON, ESQ. 24 2515 Park Marina Drive, Suite 102 24 Redding, California 96001 25 25 5698 01 REPRESENTATIVES 01 02 TULARE IRRIGATION DISTRICT: 02 03 TEHAMA COUNTY RESOURCE CONSERVATION DISTRICT 03 2 Sutter Street, Suite D 04 Red Bluff, California 96080 04 BY: ERNEST E. WHITE 05 05 STATE WATER CONTRACTORS: 06 06 BEST BEST & KREIGER 07 P.O. Box 1028 07 Riverside, California 92502 08 BY: ERIC GARNER, ESQ. 08 09 COUNTY OF TEHAMA, et al.: 09 10 COUNTY OF TEHAMA BOARD OF SUPERVISORS: 10 P.O. Box 250 11 Red Bluff, California 96080 11 BY: CHARLES H. WILLARD 12 12 MOUNTAIN COUNTIES WATER RESOURCES ASSOCIATION: 13 13 CHRISTOPHER D. WILLIAMS 14 P.O. Box 667 14 San Andreas, California 95249 15 15 JACKSON VALLEY IRRIGATION DISTRICT: 16 16 HENRY WILLY 17 6755 Lake Amador Drive 17 Ione, California 95640 18 18 SOLANO COUNTY WATER AGENCY, et al.: 19 19 HERUM, CRABTREE, DYER, ZOLEZZI & TERPSTRA 20 2291 West March Lane, S.B.100 20 Stockton, California 95207 21 BY: JEANNE M. ZOLEZZI, ESQ. 21 22 ---oOo--- 22 23 23 24 24 25 25 5699 01 INDEX 01 02 PAGE 02 03 RESUMPTION OF HEARING 5700 03 04 AFTERNOON SESSION 5783 04 05 U.S. DEPARTMENT OF THE INTERIOR: 05 MATTHEW VANDENBERG: 06 CROSS-EXAMINATION: 06 BY MR. NOMELLINI 5703 07 BY BOARD MEMBERS 5806 07 REDIRECT EXAMINATION: 08 BY MR. BRANDT 5810 08 09 STOCKTON EAST WATER DISTRICT: 09 CROSS-EXAMINATION: 10 BY MR. BIRMINGHAM 5813 10 BY MR. NOMELLINI 5836 11 12 ---oOo--- 13 14 15 16 17 18 19 20 21 22 23 24 25 5700 01 SACRAMENTO, CALIFORNIA 02 WEDNESDAY, OCTOBER 28, 1998 03 ---oOo--- 04 C.O. CAFFREY: Good morning. Welcome back to the 05 Bay-Delta Water Rights proceedings. Just a few opening 06 remarks on how we are going to proceed today. 07 Mr. O'Laughlin asked to be added to the list of 08 cross-examiners late yesterday, after having waived the 09 right previously and based his argument on the fact that 10 some information had come out at the very end of the 11 cross-examination of Mr. Vandenberg by Mr. Herrick, and so 12 he wanted to pursue some questions. 13 We, procedurally, said that he could do that. We also 14 stated, then, that would, in effect, give him two bites at 15 the apple. So he waived the first one, so that we would 16 then allow any of the other parties who wished to 17 cross-examine additionally to do so. 18 That is how we will proceed this morning. The only 19 other thing I want to say about that is that after some 20 discussion with counsel, Mr. Stubchaer and I agreed with 21 counsel that another option available to us in such an 22 instance would be to deny the request to cross-examine after 23 waiver had occurred and require the individuals, if they 24 wished to, to handle their matter or questions in the 25 rebuttal availability or instance. So, we will reserve the 5701 01 right, obviously, to make that judgment on a case-by-case 02 basis when these situations arise. That is for everybody's 03 information. 04 Mr. Brandt, do you have a question? 05 MR. BRANDT: Mr. Chairman, I have another request here, 06 actually, is that there was just some -- a couple of 07 comments made by the witness at the end of the day yesterday 08 that may require some clarification, and that may resolve 09 this issue, the issue you just discussed, as well. It is 10 actually just one comment that needs to be clarified -- 11 C.O. CAFFREY: Please proceed. 12 MR. BRANDT: -- for the record. 13 C.O. CAFFREY: Procedurally, we are in 14 cross-examination. 15 Ms. Leidigh, would it be inappropriate to allow Mr. 16 Brandt to ask a question of his witness at this time? 17 MR. BRANDT: I would not need to ask a question. It is 18 just that the witness can just state -- make a clarification 19 of a statement he made at the end of the day yesterday. 20 C.O. CAFFREY: You wish to do that now? 21 Ms. Leidigh. 22 MS. LEIDIGH: I just wanted to say, generally, with 23 permission from the Hearing Officer, the attorney 24 representing a witness can ask brief clarifying questions 25 just for the purpose of clarification, not for the purpose 5702 01 of substantive reasons, and the redirect would be later on. 02 C.O. CAFFREY: Do you wish to clarify anything? 03 MR. BRANDT: I would like to request that the witness 04 have an opportunity to make one clarifying statement. 05 C.O. CAFFREY: Good morning, Mr. Vandenberg. Please 06 proceed. 07 MR. VANDENBERG: One of my comments suggested that the 08 Head of Old River Barrier, as proposed in ISDP, was not good 09 for Delta smelt. As with all Endangered Species Act 10 reviews, that conclusion was based only on the ISDP as 11 proposed, including all the other aspects, such as dredging 12 and increased flows into Clifton Court Forebay. It was not 13 a comment on the Head of Old River Barrier in relation to 14 the San Joaquin River. 15 C.O. CAFFREY: That completes your clarification? 16 MR. VANDENBERG: Yes. 17 C.O. CAFFREY: Thank you very much. 18 By way of further clarification on procedures, this is 19 probably duplicative, but when we get to a point in the 20 cross-examination, and whatever Mr. Brandt may have in 21 addition by the way of redirect, we will be making a 22 judgment somewhere along the line for Ms. Harrigfeld. I 23 don't see her here yet, somewhere along the line for her 24 -- here is Ms. Harrigfeld and Ms. Zolezzi now. 25 We will estimate at some appropriate time when you 5703 01 could call our witnesses, Ms. Zolezzi, after we get a little 02 ways through here and make a better determination of how 03 much time we have left. 04 Mr. O'Laughlin, you had a question? 05 MR. O'LAUGHLIN: I have a statement, very short one, 06 Mr. Caffrey. 07 C.O. CAFFREY: Please. 08 MR. O'LAUGHLIN: Mr. Chairman, yesterday when I got up 09 and asked for an opportunity to ask questions again of the 10 witness, I said, hopefully, we would work this matter out 11 over the evening. Based on the clarifying statement by the 12 witness, the San Joaquin River Group Authority has no 13 questions of Mr. Vandenberg at this time, and we reserve the 14 right, once again, to call him in Phase VIII. 15 C.O. CAFFREY: All right, sir. We appreciate that 16 comment. We will certainly protect that right for you. 17 Then, obviously, there will be no need to have a second 18 round of cross-examination. 19 And, Mr. Nomellini, you are the remaining 20 cross-examiner, and you are on, sir. Good morning. 21 ---oOo--- 22 CROSS-EXAMINATION OF DEPARTMENT OF THE INTERIOR 23 BY CENTRAL DELTA PARTIES 24 BY MR. NOMELLINI 25 MR. NOMELLINI: Mr. Chairman, Members of the Board, 5704 01 Dante John Nomellini for the Central Delta parties. 02 Mr. Vandenberg, you look refreshed after yesterday. 03 C.O. CAFFREY: I have to say I asked Mr. Vandenberg, 04 as I walked in, if he had a good night's sleep. He was very 05 precise and said, "I had a night's sleep." He's a precise 06 man. 07 MR. NOMELLINI: When he gets through with this, we 08 will make him head of Fish and Wildlife Service. 09 Starting with your statement of qualifications, you 10 indicated in 1985 you received a Bachelor of Science degree 11 in biology from the University of Nebraska in Omaha; is that 12 correct? 13 MR. VANDENBERG: That's correct. 14 MR. NOMELLINI: In your course of study in college did 15 you study fishery biology? 16 MR. VANDENBERG: I took some fisheries classes. 17 MR. NOMELLINI: Did those classes deal with salmon? 18 MR. VANDENBERG: One of the classes I took was an 19 ichthyology class, which dealt with salmon. 20 MR. NOMELLINI: How about with the Delta smelt? 21 MR. VANDENBERG: It had smelt in it. 22 MR. NOMELLINI: How about splittail? 23 MR. VANDENBERG: It had splittail. 24 MR. NOMELLINI: After you graduated you show that 25 starting in 1988 you were a seasonal aide in fisheries for 5705 01 U.S. Fish and Wildlife Services, Stockton, California. Is 02 that correct? 03 MR. VANDENBERG: That's correct. 04 MR. NOMELLINI: What generally was your work during 05 that period? 06 MR. VANDENBERG: It was the recapture of tagged salmon 07 down the San Joaquin River. 08 MR. NOMELLINI: Did you deal at all with smelt in the 09 1988 period? 10 MR. VANDENBERG: Smelt was a byproduct of the catch. 11 MR. NOMELLINI: You were catching salmon with -- what 12 device did you use? 13 MR. VANDENBERG: Using a mid water trawl. 14 MR. NOMELLINI: And in the course of seeking out the 15 salmon with this trawling unit that you were working on you 16 captured some Delta smelt. Is that what you are saying? 17 MR. VANDENBERG: That's fair. 18 MR. NOMELLINI: From 1988 through 1989 you listed a 19 scientific aide fisheries, California Department of Fish and 20 Game, in the fisheries division, Rancho Cordova, California. 21 Is that correct? 22 MR. VANDENBERG: That's correct. 23 MR. NOMELLINI: What were your jobs during that 24 period? 25 MR. VANDENBERG: It was pit-tagging juvenile bass. 5706 01 MR. NOMELLINI: Any work related to salmon? 02 MR. VANDENBERG: No, none. 03 MR. NOMELLINI: Any work related to smelt? 04 MR. VANDENBERG: No. 05 MR. NOMELLINI: 1989 to 1990, biological technician, 06 Fisheries. U.S. Department of Commerce, National Marine 07 Fishery Service, San Diego. Is that a correct reading of 08 what you've listed there? 09 MR. VANDENBERG: Yes. 10 MR. NOMELLINI: What were your jobs during that period? 11 MR. VANDENBERG: It was as a porpoise observer on the 12 high seas in a tuna fishing fleet. 13 MR. NOMELLINI: So, there was no work on salmon during 14 that period? 15 MR. VANDENBERG: No. It was just porpoise and tuna. 16 MR. NOMELLINI: No work on smelt or splittail? 17 MR. VANDENBERG: That's correct. 18 MR. NOMELLINI: 1990 to 1992, general biologist, Office 19 Of Management Authority, Branch of Permits, Arlington, 20 Virginia. Is that a correct reading of what you listed 21 there? 22 MR. VANDENBERG: That is correct. 23 MR. NOMELLINI: What were your jobs during that period? 24 MR. VANDENBERG: It was a general biologist issue, 25 import and export permits for endangered species. 5707 01 MR. NOMELLINI: Did any of those endangered species -- 02 strike that. 03 Were any of the endangered species that you worked with 04 salmon of any kind? 05 MR. VANDENBERG: No, they weren't. 06 MR. NOMELLINI: And Delta smelt wasn't involved, I 07 gather? 08 MR. VANDENBERG: Delta smelt was not involved. 09 MR. NOMELLINI: Splittail wasn't involved, either? 10 MR. VANDENBERG: Splittail wasn't involved. 11 MR. NOMELLINI: In 1992 to the present, you have listed 12 Fish and Wildlife biologist, endangered species and habitat 13 conservation, Sacramento field office, California. Is that 14 correct? 15 MR. VANDENBERG: That's correct. 16 MR. NOMELLINI: That would run right up to the present 17 time; is that correct, up to today? 18 MR. VANDENBERG: Right, to right now. 19 MR. NOMELLINI: With regard to that period of time, did 20 you work on salmon at all? 21 MR. VANDENBERG: I worked mainly with Delta smelt. 22 Salmon issues did come up during that time. 23 MR. NOMELLINI: And with regard to the salmon issues 24 during 1992 up to the present time, what work did you do 25 related to the salmon? 5708 01 MR. VANDENBERG: Well, I worked mainly with the Delta 02 smelt on biological opinions. When salmon came up, I 03 deferred that to the salmon experts or National Marine 04 Fisheries service, to address those issues. 05 MR. NOMELLINI: You didn't actually work on salmon 06 issues during this period of time? 07 MR. VANDENBERG: No. 08 MR. NOMELLINI: I noted yesterday, in response to 09 questioning, you felt -- you didn't want to answer questions 10 related to salmon. 11 Do you consider yourself an expert on salmon? 12 MR. VANDENBERG: No, I don't. 13 MR. NOMELLINI: Do you consider yourself an expert on 14 smelt? 15 MR. VANDENBERG: Yes, I do. 16 MR. NOMELLINI: Do you consider yourself an expert on 17 splittail? 18 MR. VANDENBERG: Yes, I do. 19 MR. NOMELLINI: Your expertise in terms of smelt and 20 splittail, as opposed to a lack of expertise on salmon, is, 21 obviously, not related to your educational background; is 22 that correct? 23 MR. VANDENBERG: That's correct. 24 MR. NOMELLINI: You developed what you think is an 25 expertise through your work after your educational training; 5709 01 is that correct? 02 MR. VANDENBERG: Through my work in the Sacramento 03 field office. 04 MR. NOMELLINI: With regard to your work in the 05 Sacramento -- that is 1992 to the present; is that correct? 06 MR. VANDENBERG: That's correct. 07 MR. NOMELLINI: Is it fair to state that prior to 1992 08 you didn't feel you were an expert in any field of the 09 fisheries? 10 MR. VANDENBERG: Well, I did do some work with 11 fisheries. At that time I had graduated, and I was 12 beginning my fisheries experience, so I was beginning to 13 gain knowledge. 14 MR. NOMELLINI: I gather you would not define an expert 15 as somebody having a more than average understanding of a 16 particular subject, but you see some higher level of 17 definition for expert. Is that correct? 18 MR. VANDENBERG: Well, I think after my education, I 19 started in the fisheries realm of things, and I started to 20 gain my knowledge. I had some experience from school, but I 21 didn't have a real working knowledge. And I think as an 22 expert you need both education and a working knowledge. 23 MR. NOMELLINI: That is fair enough. 24 With regard to your working knowledge with regard to 25 Delta smelt and focusing in on the period from 1992 to the 5710 01 present, could you generally describe what that work 02 experience was during this period? 03 MR. VANDENBERG: I went out into the field and I did 04 some sampling out there. I went to meetings with other 05 experts in the field, and listened to their conversations 06 and what they knew about the Delta smelt, and I incorporated 07 that. I worked on biological opinions and reviewed service 08 documents that contained information on the Delta smelt. 09 MR. NOMELLINI: With regard to your work in the field, 10 you indicated you did sampling in the field. What did that 11 entail? 12 MR. VANDENBERG: I went out on occasion and did some 13 beach seining at various points in the Delta to determine 14 what species were out there. 15 MR. NOMELLINI: This beach seining, what did that 16 involve? 17 MR. VANDENBERG: Me and another individual and -- 18 essentially, one person stands close to the shore and holds 19 a net. The other person goes out some distance. Then you 20 pull -- the individual that is out in the water then pulls 21 the net towards the shore, and we kind of walk towards the 22 shore, capturing fish that are associated with -- 23 MR. NOMELLINI: So, that is it in an area, where you 24 can actually walk in the water rather than swim out with the 25 net? 5711 01 MR. VANDENBERG: Yes. Generally, in the more shallow 02 waters. 03 MR. NOMELLINI: In what areas of the Delta did you do 04 the beach seining? 05 MR. VANDENBERG: We were in the Cache Slough and 06 Lindsey Slough area. 07 MR. NOMELLINI: What other field work, other than the 08 beach seining -- well, in what year did that occur? 09 MR. VANDENBERG: That was '93, I believe. 10 MR. NOMELLINI: Other than that sampling, beach seining 11 you did in Cache Slough, what other field work did you do 12 during the period of 1992 to the present, with regard to 13 Delta smelt? 14 MR. VANDENBERG: Site assessments. Just going out and 15 looking at the area of a proposed action. 16 MR. NOMELLINI: Have you been out to the locations of 17 the four barriers that were referred to in the testimony 18 yesterday for site assessment? 19 MR. VANDENBERG: I was out in the South Delta. 20 MR. NOMELLINI: Were you at each one of those barrier 21 locations? 22 MR. VANDENBERG: I was at Head of Old River Barrier 23 during its construction and the Middle River Barrier. 24 MR. NOMELLINI: Any other field work? 25 MR. BRANDT: As to any year? 5712 01 MR. NOMELLINI: From 1992 to the present. Excuse me. 02 MR. VANDENBERG: Dealing, again, with strictly Delta 03 smelt? 04 MR. NOMELLINI: Delta smelt. 05 MR. VANDENBERG: That about sums it up. 06 MR. NOMELLINI: I gather from your response that you 07 did field work on the issue other than the Delta smelt; is 08 that correct, from 1992 to the present? 09 MR. VANDENBERG: I am sorry, you say that you gather I 10 did other -- 11 MR. NOMELLINI: Well, let me ask you the question. 12 Did you do field work on any other species besides 13 Delta smelt, as you described here, from 1992 to the 14 present? 15 MR. VANDENBERG: I worked on other species, not just 16 fish species. I worked on other species, as well. 17 MR. NOMELLINI: What were those? 18 MR. VANDENBERG: The California freshwater shrimp, the 19 red-legged frog, Sacramento splittail, San Joaquin kit fox. 20 MR. NOMELLINI: With regard to the Sacramento splittail 21 in the period of time from 1992 to the present, what field 22 work did you do related to the Sacramento splittail? 23 MR. VANDENBERG: Similar to that of the Delta smelt. 24 MR. NOMELLINI: That was beach seining? 25 MR. VANDENBERG: Beach seining and site assessments. 5713 01 MR. NOMELLINI: With regard to the beach seining for 02 Sacramento splittail, what part of the Delta did you do that 03 in? 04 MR. VANDENBERG: It was in the same area. 05 MR. NOMELLINI: Was it the same seining? 06 MR. VANDENBERG: Yes, it was. 07 MR. NOMELLINI: With regard to the site assessments for 08 Sacramento splittail, would that be the same visit to the 09 site of Head of Old River Barrier and Middle River Barrier 10 that we talked about? 11 MR. VANDENBERG: As well as others. When I would go 12 out for assessment for Delta smelt, I also assessed the site 13 for splittail. 14 MR. NOMELLINI: Now, with regard to your familiarity 15 with the Delta, do you consider yourself to be quite 16 familiar with the physical aspects of the Delta? 17 MR. VANDENBERG: How do you mean "quite familiar"? 18 MR. NOMELLINI: Let's do it this way: Could you please 19 describe how you view your state of knowledge of the 20 physical aspects of the Delta. 21 MR. VANDENBERG: When I go out to do my site 22 assessments, I review the area in relation to the critical 23 habitat, which is generally the legal Delta, which is the 24 legal Delta including some downstream areas. I look for 25 areas with vegetation that the smelt might utilize and the 5714 01 splittail, as well. 02 MR. NOMELLINI: How many times have you been in the 03 Delta since 1992? 04 MR. VANDENBERG: I can't exactly quantify that. I've 05 been out there quite a bit. 06 MR. NOMELLINI: Ten times? 07 MR. VANDENBERG: More than ten times. 08 MR. NOMELLINI: More than a hundred? 09 MR. VANDENBERG: Probably more than a hundred. 10 MR. NOMELLINI: The areas of the Delta that you have 11 been in that would fall in this category of more than a 12 hundred since 1992, where would those be other than -- you 13 described Cache Slough, Head of Old River Barrier, Middle 14 River Barrier? 15 MR. VANDENBERG: They've been throughout the Northern 16 Delta, the Central Delta, the Southern Delta. 17 MR. NOMELLINI: Has that been in a boat or on land? 18 MR. VANDENBERG: I was on a boat sometimes. Sometimes 19 it was driving to the site by car and reviewing it on land. 20 MR. NOMELLINI: Now with regard to your duties in the 21 U.S. Fish and Wildlife Service, you indicated you prepared 22 the draft biological opinion for the ISDP, which I 23 understand is the Interim South Delta Program; is that 24 correct? 25 MR. VANDENBERG: That's correct. 5715 01 MR. NOMELLINI: That draft biological opinion is not 02 attached as an exhibit to your testimony. Is it? 03 MR. VANDENBERG: No, it is not. 04 MR. NOMELLINI: Is there any reason why it was not 05 attached as an exhibit? 06 MR. VANDENBERG: I don't know. 07 MR. NOMELLINI: Now, in terms of your present position 08 in the U.S. Fish and Wildlife Service, would you consider 09 yourself to be, within the service, one of the experts on 10 Delta smelt? 11 MR. VANDENBERG: Yes, I would. 12 MR. NOMELLINI: And are there other experts on Delta 13 smelt in the Fish and Wildlife Service? 14 MR. BRANDT: Objection. Asked and answered yesterday. 15 We went through all these people. 16 C.O. CAFFREY: I will allow the question. 17 MR. NOMELLINI: I am not going to stay with it too long. 18 C.O. STUBCHAER: My recollection is he testified to 19 people he worked with, not whether they are experts or not. 20 MR. NOMELLINI: I am not going to spend too much time 21 with it. 22 C.O. CAFFREY: You may answer. 23 MR. NOMELLINI: Are there other experts on Delta smelt 24 in the U.S. Fish and Wildlife Service? 25 MR. VANDENBERG: There's other people in Fish and 5716 01 Wildlife Service with expertise on this. 02 MR. NOMELLINI: Is there a ranking in terms of expert 03 qualification on smelt within the U.S. Fish and Wildlife 04 Service? 05 MR. VANDENBERG: No. 06 MR. NOMELLINI: When you prepare a Draft Biological 07 Opinion, what steps do you take in terms of putting that 08 opinion into written form? 09 MR. VANDENBERG: I review the action as proposed in 10 the, generally, the biological assessment. I utilize the 11 Native Fishes Recovery Plan. I use the Federal Register 12 publications on the listing of the smelt and its critical 13 habitat and the proposed listing on the splittail. I use 14 information from other individuals in the office, from other 15 agencies. 16 MR. NOMELLINI: You prepare a written report or draft 17 of your biological opinion on the subject project? Is that 18 what you do? 19 MR. VANDENBERG: Well, I will draft up the opinion and 20 I work through that. 21 MR. NOMELLINI: When you draft up that opinion, you 22 said you worked through that. What do you mean "work 23 through that"? 24 MR. VANDENBERG: Well, generally, what I do is I -- 25 when I write the opinion, I lay it out. And I will go and 5717 01 review it and to see how it is written, to see how it reads, 02 see if I am comfortable with it. I review it to see if it 03 is including the information from, like, the recovery plan 04 and the listing packages, and see if that is in there. 05 MR. NOMELLINI: Once you completed that, do you submit 06 it to a superior in Fish and Wildlife Service? 07 MR. VANDENBERG: Yes. It goes through a review. 08 MR. NOMELLINI: With regard to the draft biological 09 opinion on the ISDP, who did you submit that draft to? 10 MR. VANDENBERG: I submitted it to Alison Willy for 11 general content on biological opinions. I submitted it to 12 Jim Browning of our office who was a senior biologist at the 13 time. For continuity I submitted it to Mike Thabault, who 14 was my supervisor at the time, and Cay Goude. I let other 15 biologists in the office review it at that time. At that 16 time I had it out for review. 17 MR. NOMELLINI: Is there a procedure that is applicable 18 to this type of review of a draft biological opinion? 19 MR. VANDENBERG: We have a procedure that we send it 20 through to the Section 7 Coordinator to see that the 21 opinions are similar in structure. 22 MR. NOMELLINI: Format? 23 MR. VANDENBERG: Format. 24 And then it goes up the chain. 25 MR. NOMELLINI: Alison Willy, then, what role did that 5718 01 person play? Is that a Section 7 format-type of review? 02 MR. VANDENBERG: Yes, it is. 03 MR. NOMELLINI: Jim Browning, you said service 04 biologist. What type of review was performed by Mr. 05 Browning on the ISDP biological opinion, draft opinion? 06 MR. VANDENBERG: He was the senior staff in my branch, 07 so he reviewed it. He also had some experience with 08 jeopardy-checking opinions. 09 MR. NOMELLINI: Is he an expert on Delta smelt? 10 MR. VANDENBERG: His expertise was on clapper rail and 11 salt marsh harvest mouse. 12 MR. NOMELLINI: Did he suggest any changes to the draft 13 biological opinion on the ISDP? 14 MR. VANDENBERG: As far as structure, on how to draft 15 up a jeopardy opinion, yes, he did. 16 MR. NOMELLINI: Did he have any suggested changes on 17 the content? 18 MR. VANDENBERG: As far as -- meaning content on? 19 MR. NOMELLINI: Delta smelt. 20 MR. VANDENBERG: No, he didn't. 21 MR. NOMELLINI: Do you keep your drafts, your working 22 drafts? 23 MR. VANDENBERG: When I submit a draft and it comes 24 back with changes, I review those changes. And if they make 25 sense to me, I will include those. Once they are included, 5719 01 I have a recycle box at my desk. I will put it in 02 there. And I generally empty that when it is full, and it 03 could take six months before it fills up at some times. I 04 have it within my reach. 05 MR. NOMELLINI: Do you have any of your working drafts 06 for the biological opinion, draft biological opinion, on the 07 ISDP? 08 MR. BRANDT: I need to assert an objection. I don't 09 have an objection to this particular question. But there is 10 a privilege for Federal Government for deliberative process 11 for documents like this that are in draft or being 12 considered. So that before the decision is made, those 13 documents are not generally available unless the government 14 decides to waive it. 15 So, he can answer whether he has those, but beyond that 16 and testifying as to the content of what those documents are 17 during that deliberative process, I am going to instruct him 18 not to do so. He answered a general question before, about 19 whether there were any changes. But the nature of the 20 comments or things along those lines, I am going to need to 21 assert the deliberative process. 22 C.O. CAFFREY: Thank you for putting that on the 23 record, Mr. Brandt. We'll see where Mr. Nomellini goes with 24 his questions. Of course, you may object if you so desire, 25 sir. Thank you. 5720 01 Go ahead, Mr. Nomellini. 02 MR. NOMELLINI: Do you have drafts, the working drafts, 03 of the draft biological opinion to the ISDP? 04 MR. VANDENBERG: No, I don't. 05 MR. NOMELLINI: With regard to the review by Mike 06 Thabault of the draft, and again I am talking about the ISDP 07 draft, did Mr. Thabault suggest any changes to your draft? 08 MR. VANDENBERG: Yes, he did. 09 MR. NOMELLINI: Were any of those changes with regard 10 to the content pertaining to Delta smelt? 11 MR. VANDENBERG: Yes, they were. 12 MR. NOMELLINI: Do you recall what those changes were? 13 MR. BRANDT: At this point I am going to assert the 14 objection, the nature of the changes. Whether there were 15 changes is fine. But I am going to assert the objection on 16 the deliberative process and instruct the witness not to 17 answer. 18 C.O. CAFFREY: Ms. Leidigh, if he so instructs his 19 witness and his witness so refuses to answer, that is his 20 right to claim that citation. I don't know if we can force 21 him to answer the question, if we were so inclined to do 22 that. So we just go on to the next question; is that not 23 correct? 24 MS. LEIDIGH: That is correct. 25 C.O. CAFFREY: Thank you, Ms. Leidigh. 5721 01 MR. NOMELLINI: Can't we cite him for contempt, take 02 him to jail? 03 C.O. CAFFREY: You are aware of those newly found and 04 authorized authorities for this Board. We don't have a jail 05 here. It's in our next capital outlay budget. 06 Mr. Minasian. 07 MR. MINASIAN: So we have a good record on this, could 08 we have Mr. Brandt make an offer of proof in regard to 09 whether or not there was a deliberative process. As I 10 remember the privilege, it applies only if there was a 11 deliberative process. 12 This sounds like steps which were being taken by a 13 person to make his own determination. If Mr. Brandt would 14 make that offer of proof, we could at least have a record 15 that we could determine whether or not that privilege truly 16 applies. 17 C.O. CAFFREY: I have no adversion to doing that if Mr. 18 Brandt is willing to do that. It would probably be a good 19 thing to have that on the record for later citations. 20 Clearly, we are not going to -- the venue nor the authority 21 to determine whether or not his clarification is appropriate 22 and whether or not we should force the witness to answer. 23 We won't do that. 24 MR. MINASIAN: Unfortunately, I think you are. If I 25 could respectfully disagree with the Chair. 5722 01 C.O. CAFFREY: You could do that. 02 MR. MINASIAN: You have the power to direct a witness 03 to answer. 04 Mr. Brandt -- if I might, without purporting to 05 exercise the discretion of the Chair, Mr. Brandt has the 06 authority to order his witness not to answer. Then Mr. 07 Nomellini is correct; we deal with it at that point, in 08 terms of contempt. 09 C.O. CAFFREY: That is certainly a refined explanation 10 of difference between whatever my willingness is as a 11 Hearing Officer and what my authority may be. 12 Thank you, Mr. Minasian. 13 Mr. Brandt, will you please give us an offer of proof 14 as to whether or not a deliberative process occurred with 15 regards to these documents. 16 MR. BRANDT: Yes. Actually, I think the witness has 17 already testified to some extent about the process, of how 18 it is. 19 In this case there was deliberative process of several 20 people contributing and having discussions about what should 21 go in the opinion and what shouldn't go in the opinion. 22 There was a process that took place, and several people -- I 23 think he already identified those. That is why I have not 24 objected to him asking questions of whether that had 25 happened, whether there was comment, whether there was those 5723 01 kinds of things. That is fine. 02 But it goes to the nature of the comments. And when we 03 get into the specific comments, that is where I need to 04 object and assert the government's deliberative process 05 privilege. 06 C.O. CAFFREY: Thank you very much, sir. 07 We are going to go off the record for a moment. 08 (Discussion held off the record.) 09 C.O. CAFFREY: We are back on the record. 10 I would like to ask a couple questions of the witness 11 before we make a decision as to how we are going to handle 12 the assertions as privilege. 13 First of all, Mr. Vandenberg, when you had prepared 14 your draft of the opinion in question, were you at that 15 point authorized to release that opinion as an official 16 opinion of the U.S. Fish and Wildlife Service? In other 17 words, you single-handedly, without review, did you have 18 authority to release the draft opinion? 19 MR. VANDENBERG: No. 20 C.O. CAFFREY: You did not? 21 MR. VANDENBERG: No, I did not. 22 C.O. CAFFREY: Under the procedures and regulations of 23 the Fish and Wildlife Service? 24 MR. VANDENBERG: That's correct. 25 C.O. CAFFREY: Second question, hopefully final 5724 01 question. 02 Do you agree with your attorney's assertions that 03 appropriate consultations, meetings did occur for the review 04 of the opinion? 05 MR. VANDENBERG: Yes. 06 C.O. CAFFREY: Thank you, sir. 07 Any other Board Members wish to ask the witness 08 questions? 09 I am going to accept the assertion of the privilege 10 that Mr. Brandt has made and instruct the witness that he 11 does not have to answer detailed questions about the merits 12 or details of the opinion. 13 Please proceed. 14 MR. NOMELLINI: Just for the record, since I didn't ask 15 you to instruct him to answer, I am going to ask you to 16 instruct him to answer. You've already indicated your 17 ruling on this matter, and, therefore, I assume you're 18 refusing my subsequent request that you direct him to answer 19 that question? 20 C.O. CAFFREY: I am not sure I understand your point 21 here, Mr. Nomellini. You want to try that again? 22 MR. NOMELLINI: Yes. 23 I request that you direct Mr. Vandenberg to answer my 24 questions with regard to what changes were made in the 25 content of the Draft Biological Opinion on the ISDP as per 5725 01 the request of Mike Thabault. 02 C.O. CAFFREY: You mean so that he can assert in the 03 record his reference to the privilege; is that your point? 04 MR. NOMELLINI: I did not actually ask you to direct 05 him to answer. His counsel directed him not to answer. I 06 did not ask you to ask him. I am now asking you to direct 07 him to answer. I assume from what you said previously what 08 you are going to do with my request. 09 C.O. CAFFREY: Thank you. 10 I was a little confused there. Request denied. 11 Sometimes you are so nice, Mr. Nomellini, I don't get 12 it. 13 MR. NOMELLINI: Caught in a trap. 14 C.O. CAFFREY: You trapped me again. 15 Go ahead. 16 MR. NOMELLINI: With regard to the biological opinion 17 on the ISDP, did you submit your draft to Cay Goude for 18 review? 19 MR. VANDENBERG: Yes. 20 MR. NOMELLINI: Did she request any changes in the 21 content with regard to Delta smelt? 22 MR. VANDENBERG: She had suggestions. 23 MR. NOMELLINI: And what were those suggestions? 24 MR. BRANDT: It is at this point I will reassert the 25 deliberative process privilege and instruct the witness not 5726 01 to answer. 02 MR. NOMELLINI: I would ask that you direct him to 03 answer. Deliberative privilege does not apply in this 04 particular case. It is a review process, not a deliberation 05 process by policy level officials. 06 C.O. CAFFREY: I will interpret Mr. Brandt's remark as 07 an objection. And I will sustain it. 08 MR. NOMELLINI: We are going to have a number of these 09 that we would run into, so we'll bring them up without 10 spending too much time. Just make the record. 11 With regard to Mike Thabault and Cay Goude, do you 12 consider them to be experts on Delta smelt? 13 MR. VANDENBERG: Yes, I do. 14 MR. NOMELLINI: Going back now to the Draft Biological 15 Opinion on the ISDP, did you submit it to any other party in 16 the U.S. Fish and Wildlife Service for review? 17 MR. VANDENBERG: I have already stated that I had. 18 MR. NOMELLINI: Other than the people that we have gone 19 through: Mr. Willy -- 20 MR. VANDENBERG: That is Miss. 21 MR. NOMELLINI: Ms. Willy, Browning, Thabault and 22 Goude. 23 MR. VANDENBERG: No. 24 MR. NOMELLINI: After that process was completed, what 25 did you do next? 5727 01 MR. VANDENBERG: I went back to my office. 02 MR. NOMELLINI: Fair enough. 03 Did you put your feet on the desk? 04 MR. VANDENBERG: I went back and I looked at the 05 comments and I continued to work on the opinion. 06 MR. NOMELLINI: Then, in terms of procedure with regard 07 to the draft opinion, what was the next step after you 08 incorporated whatever you wanted to incorporate from the 09 comments of these people? 10 MR. VANDENBERG: Then I had a final draft and submitted 11 that up the surname chain. 12 MR. NOMELLINI: Now what is it -- you said up the what? 13 MR. VANDENBERG: Surname. 14 MR. NOMELLINI: Surname -- 15 MR. VANDENBERG: Uh-huh. 16 MR. NOMELLINI: -- chain? 17 MR. VANDENBERG: Right. 18 MR. NOMELLINI: Who was the first surname that received 19 that in this chain? 20 MR. VANDENBERG: It actually -- I made -- I made an 21 additional copy and then sent that to two people 22 simultaneously, Mike Thabault and Alison Willy. 23 MR. NOMELLINI: So this is the final draft of the 24 biological opinion on the ISDP, and you sent copies of it to 25 Mike Thabault and Alison Willy? 5728 01 MR. VANDENBERG: That's correct. 02 MR. NOMELLINI: Anybody else? 03 MR. VANDENBERG: No. 04 MR. NOMELLINI: When you say "surname chain," that is 05 Mike Thabault and Alison Willy; is that correct? 06 MR. VANDENBERG: They are included in that chain. 07 MR. NOMELLINI: Who else is in the chain? 08 MR. VANDENBERG: Cay Goude and the field supervisor. 09 MR. NOMELLINI: Field supervisor. Who might that be? 10 MR. VANDENBERG: Wayne White. 11 MR. NOMELLINI: And do you know what happened to the 12 final draft as a result of that submittal process? 13 MR. VANDENBERG: There was a cover memo also drafted, 14 and that was submitted to the Regional Director. 15 MR. NOMELLINI: Who drafted the cover memo? 16 MR. VANDENBERG: I did. 17 MR. NOMELLINI: Is the cover memo a part of the Draft 18 Biological Opinion? 19 MR. VANDENBERG: The cover memo is used to send the 20 document up to the Regional Director's office. It is part 21 of the opinion. 22 MR. NOMELLINI: Do you know if any changes were made to 23 your final Draft Biological Opinion on the ISDP? 24 MR. VANDENBERG: No. 25 MR. NOMELLINI: You don't know? 5729 01 MR. VANDENBERG: No, I don't believe there are. 02 MR. NOMELLINI: You don't know, but to your knowledge 03 there are no changes; is that correct? 04 MR. VANDENBERG: That's correct. 05 MR. NOMELLINI: With regard to the biological opinion 06 on the ISDP, and we are talking about the final one now, 07 that dealt with the Delta smelt and splittail; is that 08 correct? 09 MR. BRANDT: Objection. Vague. Final biological 10 opinion -- are we still talking ISDP? 11 MR. NOMELLINI: Right, final draft. 12 C.O. CAFFREY: You did say ISDP, if I recall. 13 MR. BRANDT: Excuse me. 14 MR. NOMELLINI: With regard to the final draft of the 15 ISDP Biological Opinion, did that deal with Delta smelt and 16 splittail? 17 MR. VANDENBERG: Delta smelt and Sacramento splittail. 18 MR. NOMELLINI: It did not deal with any other species, 19 did it? 20 MR. VANDENBERG: No, it didn't. 21 MR. NOMELLINI: How in the process does the Fish and 22 Wildlife Service deal with conflicts, if any, on endangered 23 species? 24 MR. VANDENBERG: That's generally a policy decision 25 that is made over my head, at a higher level. 5730 01 MR. NOMELLINI: So, if what you are recommending with 02 regard to splittail, for example, would cause an adverse 03 impact on smelt, somebody would sort that out above you. Is 04 that what you are saying? 05 MR. VANDENBERG: Generally, what we have stated is 06 that, if an action affects the Delta smelt or provides 07 benefit to the Delta smelt, it also would affect or benefit 08 the Sacramento splittail. I don't see a conflict between 09 those two species. 10 MR. NOMELLINI: Let's probe that a minute. 11 Do splittail eat any form of Delta smelt? 12 MR. VANDENBERG: I don't know. 13 MR. NOMELLINI: Do you know that they don't? 14 MR. VANDENBERG: No. 15 MR. NOMELLINI: In the biological opinion for the 16 proposed South Delta Temporary Barrier Project for 1996, 17 which is Department of the Interior Exhibit 16-B, there is a 18 reference to the food sources for splittail, is there not? 19 MR. VANDENBERG: Can you show me what page you are on. 20 MR. NOMELLINI: Look at Page 10, the third paragraph. 21 I will read it: 22 Sacramento splittail are benthic foragers 23 that feed on opossum shrimp. Although 24 detrital material makes up a large percent of 25 the stomach contents, earthworms, clams, 5731 01 insects, larvae and other invertebrates are 02 also found in the diet. (Reading.) 03 You see that? 04 MR. VANDENBERG: Yes, I do. 05 MR. NOMELLINI: Do you have any opinion as to whether 06 or not Sacramento splittail would eat any life form of a 07 Delta smelt? 08 MR. VANDENBERG: When Delta smelt spawn, their eggs 09 attach to the substrates; and as the Sacramento splittail is 10 forging along, it may eat those things that are attached to 11 the substrates. It's not identified here. It wasn't found 12 in stomach content in these, in this situation where this 13 was found. But do I know for a fact that they don't eat any 14 form? No, I don't. 15 MR. NOMELLINI: Generally speaking, a Sacramento 16 splittail could be as large as 12 inches in length; is that 17 correct? 18 MR. VANDENBERG: That's correct. 19 MR. NOMELLINI: And a Delta smelt, it is two or three 20 inches or three to four inches? 21 MR. VANDENBERG: Two or three. 22 MR. NOMELLINI: In the food chain would you expect 23 these larger fish to eat smaller fish? 24 MR. VANDENBERG: Generally, that is the case. The 25 Delta smelt -- I mean, the eggs are also very small, too. 5732 01 MR. NOMELLINI: In terms of an example, the potential 02 for conflict between two -- they are both not endangered. I 03 realize, but they are both listed important in some respect, 04 are they not, the splittail and smelt? 05 MR. VANDENBERG: The Delta smelt is listed as 06 threatened. The Sacramento splittail is proposed for 07 listing as threatened. 08 MR. NOMELLINI: If we had a conflict in those two 09 species, you have indicated that that conflict would be 10 resolved at a higher level in U.S. Fish and Wildlife 11 Service; is that correct? 12 MR. VANDENBERG: If there was a conflict between listed 13 species, that conflict would be handled at a higher level 14 than me. 15 MR. NOMELLINI: Do you know what the procedure would 16 be? 17 MR. VANDENBERG: No, I don't. I am not involved in 18 it. 19 MR. NOMELLINI: With regard to the possible conflict 20 between Delta smelt and winter-run salmon, how, if you know, 21 would that conflict be dealt with procedurally? 22 MR. VANDENBERG: Again, that would be dealt with at a 23 higher level. 24 MR. NOMELLINI: So, you don't know what they do? 25 MR. VANDENBERG: I don't take part in those. 5733 01 MR. NOMELLINI: You have not participated in any 02 consultation with regard to the National Marine Fishery 03 Service and your biological opinion on the ISDP? 04 MR. BRANDT: Objection. Vague as to "take part in a 05 consultation." 06 MR. NOMELLINI: Did you consult with the National 07 Marine Fishery Service in your preparation of the final 08 Draft Biological Opinion on the ISDP? 09 MR. VANDENBERG: In drafting the jeopardy biological 10 opinion, I addressed the effects on Delta smelt and 11 Sacramento splittail. I made -- my call here was how the 12 proposed action would affect these two species. 13 MR. NOMELLINI: But my question is, and I'll ask it 14 again: Did you consult with the National Marine Fishery 15 Service with regard to your preparation of the biological 16 opinion on the ISDP? 17 MR. VANDENBERG: We had talked that I am preparing a 18 biological opinion on Delta smelt and Sacramento splittail. 19 MR. NOMELLINI: You just had a verbal conversation with 20 them? 21 MR. VANDENBERG: I talked with them on the phone. They 22 were at meetings, and when it came up, I said, "I am 23 preparing a biological opinion on the Delta smelt and 24 Sacramento splittail." 25 MR. NOMELLINI: Other than that was there any other 5734 01 consultation? 02 MR. VANDENBERG: No, there wasn't. 03 MR. NOMELLINI: There's no formal procedure that you 04 know of that provides for review by the National Marine 05 Fishery Service of biological opinions that are prepared by 06 U.S. Fish and Wildlife Service for Delta smelt? 07 MR. VANDENBERG: I am sorry, are you asking is the 08 National Marine Fishery Service preparing opinions for Delta 09 smelt? 10 MR. NOMELLINI: No. My concern is coordination of the 11 two. They have a responsibility, as I understand it, for 12 winter-run salmon; is that correct? 13 MR. VANDENBERG: That's correct. 14 MR. NOMELLINI: You have a responsibility for Delta 15 smelt? 16 MR. VANDENBERG: That's correct. 17 MR. NOMELLINI: What I am concerned about is, if there 18 are conflicts in the two, the two species, how that would be 19 addressed procedurally. And as I understand it, your answer 20 was you don't know how it is dealt with procedurally? 21 MR. VANDENBERG: The National Marine Fishery Service 22 would generate their opinion on the winter-run. I would 23 generate my opinion on the smelt. I explained the procedure 24 that I do after I draft my opinion. I don't know what their 25 procedures are. 5735 01 If there is a conflict, that conflict is settled at a 02 level that is higher than me. 03 MR. NOMELLINI: With regard to conflicts between the 04 U.S. Fish and Wildlife Service with regard to an endangered 05 species and the Bureau of Reclamation, are you aware of a 06 procedure for dealing with those types of conflicts? 07 MR. VANDENBERG: The conflict between an endangered 08 species and what the -- 09 MR. NOMELLINI: Operations of the Bureau of 10 Reclamation, for example. 11 MR. VANDENBERG: In drafting the biological opinion for 12 the proposed Interim South Delta Program, I had found that 13 the action, as proposed, would jeopardize the species. To 14 address that jeopardy call, I included a reasonable and 15 prudent alternative to the project. And if they accept that 16 reasonable and prudent alternative, that could be a way to 17 address differences between the two agencies. 18 MR. NOMELLINI: When you say "they," would be the -- 19 MR. VANDENBERG: The -- 20 MR. NOMELLINI: -- the Bureau? 21 In the preparation -- what I am trying to understand is 22 the procedure. In the preparation of the Draft Biological 23 Opinion for the ISDP, did you consult with the Bureau of 24 Reclamation? 25 MR. VANDENBERG: Yes, I did. 5736 01 MR. NOMELLINI: What was the nature of that 02 consultation? 03 MR. VANDENBERG: To work through the possible effects 04 that the project has on listed species, on Delta smelt and 05 Sacramento splittail. 06 MR. NOMELLINI: Did they make any recommendations to 07 you with regard to any part of the Draft Biological Opinion 08 on the ISDP? 09 MR. VANDENBERG: They presented the project as was 10 proposed, as I consulted on it; and that was the -- that was 11 the way they were coming to me, is with this proposed 12 action. "This is our proposed action. This is what we 13 would like you to consider." 14 MR. NOMELLINI: Was their contact to you limited to 15 that? 16 MR. VANDENBERG: We had meetings fairly regularly. 17 MR. NOMELLINI: As I understand the process in this 18 particular case we are talking about, the federal agency, 19 the Bureau of Reclamation, outlines a proposed project, 20 gives you a project description. Is that correct? 21 MR. VANDENBERG: They provide me with a proposed 22 project description. 23 MR. NOMELLINI: In this particular case you had some 24 consultation with them with regard to the project 25 description; is that correct? 5737 01 MR. VANDENBERG: With them, yes. 02 MR. NOMELLINI: Now, did they put forth any 03 recommendations with regard to the content of the Draft 04 Biological Opinion on the ISDP other than providing you with 05 a project description and explanations of that? 06 MR. VANDENBERG: When the final draft opinion went out, 07 I have not been -- I have not been consulted on what the 08 final -- there hasn't been a final decision made on how they 09 are going to proceed on that. That is kind of where it's 10 been to this point. 11 MR. NOMELLINI: So, they could give input on your final 12 draft, after it is out of your hands and has gone through 13 the procedure, the surname chain. Is that what your 14 testimony is? 15 MR. VANDENBERG: They could agree with the reasonable 16 prudent alternative and implement the project accordingly or 17 they could not. In which case we go final with our 18 opinion. 19 MR. NOMELLINI: While it was still in your hands before 20 it went through the surname chain, did the Bureau of 21 Reclamation propose any changes to your Draft Biological 22 Opinion on the ISDP with regard to the Delta smelt? 23 MR. BRANDT: If you recall. 24 MR. VANDENBERG: I don't recall. They may have 25 provided comments on what I had drafted up. I don't 5738 01 recall. 02 MR. NOMELLINI: Is it normal procedure, in your 03 experience, in dealing with these biological opinions to 04 have the Bureau input to U.S. Fish and Wildlife Service 05 other than on project description prior to the final draft 06 stage of the biological opinion? 07 MR. VANDENBERG: I think they would make suggestions to 08 try to sway my decision to allow their project to go 09 forward. But I am addressing -- I am writing the opinion 10 based on that project description and the biological opinion 11 that generates. 12 MR. NOMELLINI: With regard to your testimony before 13 this Board, you met with your attorney and other of the 14 people in the Fish and Wildlife Service; is that correct? 15 MR. BRANDT: On this point I am just going to instruct 16 him, he can say yes or no, nothing beyond. It might go into 17 the attorney-client privilege. 18 MR. NOMELLINI: We are not going there. 19 MR. BRANDT: That is fine. 20 You can say yes or no. 21 MR. VANDENBERG: Yes. 22 MR. NOMELLINI: And with regard to instructions as to 23 how you should proceed in this particular hearing, were you 24 instructed not to answer questions with regard to salmon? 25 MR. VANDENBERG: I was instructed to tell the truth. 5739 01 MR. BRANDT: That's fine. I want to instruct the 02 witness on attorney-client privilege. Anything the attorney 03 said, I am going to instruct him not to answer based on 04 attorney-client privilege. 05 C.O. CAFFREY: Mr. O'Laughlin. 06 MR. O'LAUGHLIN: We went through this earlier. Once 07 the witness has been offered as an expert, any deliberations 08 that he had with his attorney is no longer privileged under 09 the California Code of Civil Procedure. So I don't 10 understand what privilege he's asserting for Mr. Vandenberg 11 since he offered him as an expert. 12 Otherwise, if he is going to assert the privilege, then 13 Mr. Vandenberg is his client and is not offered as an expert 14 witness and, therefore, can't render any opinions as an 15 expert. 16 C.O. CAFFREY: Ms. Leidigh. 17 MS. LEIDIGH: Let's see what Mr. Brandt has to say. 18 C.O. CAFFREY: I agree. I just didn't get your signal, 19 Mr. Brandt. 20 MR. BRANDT: On that note, he is offered as an expert 21 witness. And in that frame, so anything that is -- after 22 preparing for a witness, anything that you are -- that you 23 can talk about at that point, but not anything before -- not 24 anything before that time. 25 So, anytime, once we are talking that you are an expert 5740 01 witness and we are talking about you're preparing for a 02 witness, that is something that we can -- he is, I have to 03 admit on that point, he is allowed to. But nothing before 04 that time. Nothing before we submitted the testimony. 05 C.O. CAFFREY: Let me make sure I understand your 06 instruction to your witness. Are you telling your witness 07 that in preparing for this particular testimony, any 08 meetings that you may have had between the two or anyone 09 else where you gave him advice, that is subject now to 10 cross-examination? But any consultations that you may have 11 had as client and attorney prior to that specific 12 preparation are privileges. 13 Is that your contention? 14 MR. BRANDT: Correct. Anytime after he was identified 15 as an expert witness, basically, after the testimony was 16 filed. 17 C.O. CAFFREY: I believe that is consistent -- is that 18 consistent with your concern, Mr. O'Laughlin? 19 MR. O'LAUGHLIN: The only point I would raise there is 20 I don't think it is limited to the tine that he actually 21 submitted his testimony. Because, if Mr. Brandt is talking 22 with this witness prior to the submittal of the written 23 testimony, that is also deliberations that are not covered 24 by attorney-client work product privilege, because that goes 25 to the testimony of the expert witness. 5741 01 So, it is not on the date that he files the 02 testimony. It is anything up until the time that they're 03 preparing the testimony for submittal to the State Water 04 Resources Control Board. 05 I would agree with Mr. Brandt that if he's had 06 discussions with Mr. Vandenberg on other matters and other 07 issues prior to this testimony, that would be covered under 08 the attorney-client privilege. But testimony -- anything 09 that was discussed in preparation for the written submittal 10 of his testimony is open for cross-examination under the 11 CCP. 12 C.O. CAFFREY: This may be semantical, I don't know. 13 Go ahead, Mr. Brandt. 14 MR. BRANDT: I would just suggest that up to the time 15 that he was identified, it is still a legal question and an 16 attorney-client privilege as to whether he is going to be an 17 expert witness. So there is still legal consultations about 18 whether he is going to be a witness. 19 So, up to that time, until he becomes a witness, I 20 would suggest that he is still my client. 21 C.O. CAFFREY: I don't know where that line is. 22 Do you have any wisdom for us -- 23 MR. NOMELLINI: I think once he makes the decision to 24 use him as an expert witness, for sure, from that point 25 forward it would fall within the scope of legitimate 5742 01 questioning. 02 C.O. CAFFREY: Ms. Leidigh. 03 MS. LEIDIGH: I think what we are looking at is 04 probably a slightly fuzzy line. But at whatever point Mr. 05 Vandenberg was identified as a witness, as Mr. Brandt 06 pointed out, that from that point on this subject he would 07 have to answer questions. 08 Now, identification means they decided at Interior that 09 Mr. Vandenberg was going to be witness and normally the 10 preparation for being a witness, including preparation of 11 the testimony, comes after that. 12 C.O. CAFFREY: We are talking here, Ms. Leidigh, about 13 the definition of identification in this case, which is when 14 his attorney or supervisor told him, "You're going to be a 15 witness," not at the time that they submitted their 16 evidentiary exhibits. 17 So, I agree with Mr. Nomellini and to some extent with 18 Mr. O'Laughlin. So I am going to instruct the witness to 19 answer any questions about conversations he had with his 20 attorney and instructions he got from his attorney right at 21 the point and thereafter of when you were told you were 22 going to be a witness in this proceeding, Mr. Vandenberg. 23 MR. NOMELLINI: Do you remember the question? Simple 24 one. 25 Were you instructed not to answer questions related to 5743 01 salmon? 02 MR. VANDENBERG: As I started to say, I was instructed 03 to tell the truth. I was instructed to listen to the 04 question. And I was -- and answer the question, and to say 05 what I know and what I don't know. 06 MR. NOMELLINI: That is fine. How about my question? 07 Were you instructed not to answer questions relating to 08 salmon? 09 MR. VANDENBERG: No, I wasn't. 10 MR. NOMELLINI: You have indicated in your testimony 11 that the project description that you were given for the 12 ISDP included four barriers: Head of Old River Barrier, 13 Middle River Barrier, the Grant Line Canal Barrier and Old 14 River Barrier. Is that correct? 15 MR. VANDENBERG: That's correct. 16 MR. NOMELLINI: And it also included some channel 17 improvements in Old River; is that correct? 18 MR. VANDENBERG: Some channel dredging in Old River. 19 MR. NOMELLINI: You don't view that as an improvement, 20 I gather? 21 MR. BRANDT: I am going to object. Argumentative. 22 You can answer, actually. 23 MR. NOMELLINI: Some channel dredging in Old River and 24 increased export pumping; is that correct? 25 MR. VANDENBERG: As well as additional intake at 5744 01 Clifton Court Forebay. 02 MR. NOMELLINI: You indicated in your testimony, and 03 this is on Page 1, that this ISDP analysis, nevertheless, 04 provides information as to the fishery effects of choosing 05 the permanent barriers from the ISDP to implement the 1995 06 Water Quality Control Plan; is that correct? 07 MR. VANDENBERG: That's correct. 08 MR. NOMELLINI: So, from that is it correct that you 09 can dissect the impacts of the increased export pumping from 10 the other elements included in the ISDP, as to their impacts 11 on smelt and splittail? 12 MR. VANDENBERG: In generating the Draft Jeopardy 13 Biological Opinion, I took the entire project as it was 14 proposed. I didn't separate out any one particular issue to 15 come to my conclusion. I used the entire action. 16 MR. NOMELLINI: So, you're limited -- are you telling 17 us that you're limited in your ability to segregate the 18 impacts of the individual elements of the ISDP? 19 MR. VANDENBERG: Yes. In developing my opinion, I did 20 not just look at the, for example, the intake at Clifton 21 Court Forebay. I did not just look at that one component. 22 I looked at that in addition to all the other components. 23 MR. NOMELLINI: Let's start with an easy one first, the 24 Head of Old River Barrier. Are you an expert with regard to 25 Delta smelt as to the impacts related to the Head of Old 5745 01 River Barrier? 02 MR. VANDENBERG: The Head of Old River Barrier does 03 have impacts on Delta smelt. 04 MR. NOMELLINI: You consider yourself an expert with 05 regard to the Delta smelt related impacts? 06 MR. VANDENBERG: Yes, I do. 07 MR. NOMELLINI: Now, you indicated that at the 08 beginning of your statement today or in your opening 09 statement, I guess, that you did not -- well, let's start 10 again. 11 With regard to the Head of Old River Barrier, as a 12 temporary barrier project, are there any adverse impacts on 13 Delta smelt? 14 MR. BRANDT: Objection. 15 MR. NOMELLINI: In your opinion. 16 MR. BRANDT: Objection. Vague and ambiguous. That may 17 be assuming a number of things. Are you talking about under 18 what operations? It is an incomplete hypothetical. That is 19 why I think it would be difficult to answer. 20 C.O. CAFFREY: Well, I believe the witness said he was 21 an expert with regard to smelt and Head of Old River 22 Barrier. Maybe -- I would like to hear the answer, if you 23 can. 24 MR. NOMELLINI: I am talking about the Head of Old 25 River Barrier operation that we had as a temporary barrier, 5746 01 recognizing, and I am not sure I am capable of defining all 02 the limitations, but basically it goes in for a 30-day 03 period in the spring and some period in the fall. 04 Is that enough focus? 05 MR. BRANDT: Any limitations here on what the exports 06 at the main export pumps are? 07 MR. NOMELLINI: He could qualify that in any respect 08 that he would want, if that needs to be qualified. I could 09 define some parameters if that is going to help. 10 With regard to the possible adverse impacts on Delta 11 smelt from an operation of the Head of Old River Barrier as 12 we have seen it as a temporary barrier. What would those 13 impacts be? 14 MR. BRANDT: Based on all that representation of the 15 explanation, I will let -- go ahead an answer. I withdraw 16 my objection. I think it is clear enough. 17 C.O. CAFFREY: Thank you, sir. 18 Go ahead, Mr. Nomellini or Mr. Vandenberg, as the case 19 may be. If you were going to answer, go ahead. 20 MR. VANDENBERG: In addressing the effects to Delta 21 smelt from the Head of Old River Barrier, there is a lot 22 more information that needs to be provided in order to 23 generate that opinion. I would need all the other 24 information to render an opinion on the effects. 25 MR. NOMELLINI: Let me help you. 5747 01 Is there an impact upon Delta smelt habitat from the 02 footprint of a temporary Head of Old River Barrier? 03 MR. VANDENBERG: There is an impact on critical 04 habitat. 05 MR. NOMELLINI: And could you describe that. 06 MR. VANDENBERG: By placing the rock in the water, it 07 essentially removes the area where the fish could go. 08 MR. NOMELLINI: Anything else? 09 MR. VANDENBERG: Directly, that is the direct effect 10 that the barrier has. 11 MR. NOMELLINI: If we covered up with rocks shallow 12 water habitat that would be utilized by Delta smelt, then to 13 that extent there would be a destruction of critical 14 habitat. Is that what you are saying? 15 MR. VANDENBERG: Yes. 16 MR. NOMELLINI: Shallow water habitat, would you define 17 that again? I remember what you said. But for the record, 18 what depth of water would describe shallow water habitat? 19 MR. VANDENBERG: Approximately three meters or less. 20 MR. NOMELLINI: So that, to the extent that we put 21 rocks in the deeper portions, if there are any, within the 22 footprint of Head of Old River Barrier, there would not be a 23 detrimental impact to the Delta smelt, would there? 24 MR. VANDENBERG: There may not be a direct effect to 25 critical habitat, but it could cause indirect effects. 5748 01 MR. NOMELLINI: What indirect effects come to mind? 02 MR. VANDENBERG: The fish may decide to be on one side 03 on the river and want to swim to the other side. That would 04 block their passage to going through. They have to pass 05 that deep of water. That would block their passage. There 06 is also -- if you look at the Delta in its most simplistic 07 form as just a water conveyance facility, if you put 08 anything in one of those streams, that is going to alter the 09 flow. So there would be flow altercations. 10 MR. NOMELLINI: When we put the rocks in the water for 11 the temporary Head of Old River Barrier, do we create any 12 shallow water habitat that would not have been there had we 13 not put the pile of rocks in the river? 14 MR. VANDENBERG: No. 15 MR. NOMELLINI: Don't we create -- when we stack rocks 16 in the river, it would be stacked with some angle of repose, 17 would it not? 18 MR. VANDENBERG: I suppose it would. 19 MR. NOMELLINI: You have no idea of what I am asking 20 you about? 21 MR. VANDENBERG: You are asking if you put rock in the 22 river is that providing habitat for Delta smelt? 23 MR. NOMELLINI: Right. 24 MR. VANDENBERG: No. 25 MR. NOMELLINI: Even though we create water of a depth 5749 01 of ten feet or less in the middle of the channel by reason 02 of creating this rock mound, that would not constitute 03 shallow water habitat. Is that your testimony? 04 MR. BRANDT: I am going to object that it is 05 argumentative. Perhaps you need to ask why it doesn't 06 create -- the kind of question is argumentative. 07 C.O. CAFFREY: I am going to overrule the objection. I 08 think we are trying to get clarification here; that is how I 09 am interpreting the question. I would like to hear the 10 answer to that myself, based on previous testimony. 11 Go ahead, Mr. Nomellini. 12 MR. NOMELLINI: You understand the question? 13 MR. VANDENBERG: If you're piling rock -- 14 MR. NOMELLINI: And I am willing to ask you why so you 15 can give us the why. 16 MR. NOMELLINI: If you are piling rock up in a river 17 channel, that is not providing habitat. That is removing 18 habitat. 19 MR. NOMELLINI: In the deepest part of the channel -- 20 let's assume we had a channel 20 feet deep, and we put a 21 pile of rock in that 20-foot area, so that we now have 22 portions of that area that are covered with water of depth 23 of ten feet or less. Would you agree that that is possible, 24 that we create areas in the channel that were not otherwise 25 there that have a depth of ten feet or less water over the 5750 01 top? 02 MR. VANDENBERG: I would agree that would occur, but I 03 would state that that isn't providing habitat for the 04 smelt. 05 MR. NOMELLINI: All right. We are going to pursue 06 that. You indicated in answers to questions by, I think it 07 was, Mr. Herrick, that physical habitat included refugia, 08 habitat for attachment of eggs. And there were two others. 09 Could you give me the other two. 10 MR. VANDENBERG: I believe I said for foraging and for 11 escapement from predators. 12 MR. NOMELLINI: You said hanging out, is what I put in 13 my notes. 14 Do you remember that statement? 15 MR. VANDENBERG: Was kind of late in the day. 16 C.O. CAFFREY: I also remember "screwed up" as another 17 technical term late in the day. 18 MR. NOMELLINI: Refugia, lets stay with that. That 19 would be what? What aspect of physical habitat is described 20 by refugia? 21 MR. VANDENBERG: Hanging out or perhaps escaping 22 predation. Getting there and hide out. 23 MR. NOMELLINI: Got to be a hideout? 24 MR. VANDENBERG: It could be a hideout. 25 MR. NOMELLINI: If we had a pile of rocks, would you 5751 01 not agree that there are voids in the rocks that could be 02 used as hideouts by Delta smelt? 03 MR. VANDENBERG: I would agree that if you have rock 04 that there could be voids, but as far as Delta smelt using 05 those voids for habitat, that has not been shown. 06 The Department of -- the California Department of Fish 07 and Game has done some studies on egg attachment for Delta 08 smelt, and it hasn't been shown that Delta smelt eggs attach 09 to rock riprap. 10 MR. NOMELLINI: I am talking about hideouts now. 11 MR. VANDENBERG: I would say no. 12 MR. NOMELLINI: Do you know of any testing to determine 13 whether or not Delta smelt have utilized the holes in 14 amongst the pile of rock for the Old River Barrier for a 15 hideout? 16 MR. VANDENBERG: Just when you asked this question, it 17 triggered a memory of additional sampling that I had done 18 out in the Delta with Fish and Game along Staten Island 19 where they had placed rock riprap along a portion of the 20 levee there and adjacent to that was a heavily vegetated 21 area. We did electrofishing along that portion where rock 22 riprap was located and found no species in our net, no fish 23 species in our net. 24 When we did the sampling on the vegetated part, we 25 found a lot of fish in our net, indicating that the fish are 5752 01 associating with the vegetation and not the rock. 02 MR. NOMELLINI: Have you ever sat on the bank of a 03 levee that was rocked and looked into the water to see 04 whether or not you can see any fish swimming along the rocks? 05 MR. VANDENBERG: Yeah, I have done that. 06 MR. NOMELLINI: Did you see any fish? 07 MR. VANDENBERG: I saw some striped bass. 08 MR. NOMELLINI: Did you see any small minnow-type 09 fish? 10 C.O. CAFFREY: Mr. Nomellini, we need to take a break. 11 How much time do you need, still require? 12 MR. NOMELLINI: I probably still am going to need about 13 an hour. 14 C.O. CAFFREY: I suppose at this point we can also say 15 to Ms. Harrigfeld and Ms. Zolezzi, offer our condolences, 16 indicate that -- I would say that we won't be talking to 17 your witnesses before one this afternoon. If you want to -- 18 I don't know if -- 19 Mr. Brandt, you are going to have -- looks like you are 20 going to have some redirect. 21 MR. BRANDT: If I do, it will be very, very short. 22 C.O. CAFFREY: I would say probably you would be safe 23 to let your witnesses know that they will not be on this 24 morning, but probably early this afternoon, with any luck at 25 all. 5753 01 MR. BRANDT: Should I send my witnesses home? I have 02 witnesses for Ms. Harrigfeld who will not be until after the 03 Regional Board. 04 How many more people do we have, if it is not going to 05 be until this afternoon? 06 C.O. CAFFREY: For this particular panel? 07 MS. HARRIGFELD: I believe there is four individuals 08 left to cross, and we have short redirect. 09 C.O. CAFFREY: According to my notes here, we still 10 have Mr. Nomellini, Mr. Birmingham, Mr. Minasian and Mr. 11 O'Laughlin to cross-examine. Is that correct? 12 MR. BIRMINGHAM: It is consistent with the transcript 13 on the day they appeared. 14 C.O. CAFFREY: Thank you, counselor. Dare I make a 15 mistake. 16 I appreciate that, Mr. Birmingham. 17 MR. BIRMINGHAM: Before we go, I would also like to 18 point out that, during the direct examination of that panel, 19 there was some discussion about whether or not there had 20 been any objections based upon leading questions. And Ms. 21 Zolezzi said, in fact, there had been some objections based 22 on the fact that the questions were leading. 23 The chair observed that he didn't remember any. I 24 observed that I didn't remember any, and Ms. Zolezzi said 25 that I had objected on the grounds they were leading. I now 5754 01 had an opportunity to review the transcript, and I have 02 found no objections on the ground that they were leading 03 questions. 04 MR. NOMELLINI: Unless we can cross-examine this guy, I 05 don't think we ought to engage in this dialogue. 06 C.O. CAFFREY: I do not want a reading of the 07 record. 08 MR. BIRMINGHAM: I was just going to observe that the 09 Chairman's memory still is very good. 10 C.O. CAFFREY: Well, thank you, Mr. Birmingham. Thanks 11 to all of you for agreeing. 12 Let's take a 12-minute break. 13 (Break taken.) 14 C.O. CAFFREY: We are back. 15 Mr. Nomellini, you may proceed, sir. 16 MR. NOMELLINI: Mr. Vandenberg, back when you were 17 sitting on the levee in the Delta when there was rock riprap 18 and you saw striped bass in the water, in your opinion as a 19 biologist, could you tell us why they were in that 20 particular area at that particular time? 21 MR. VANDENBERG: The striped bass are a warm water 22 species. The rock riprap with the lack of vegetation 23 essentially warmed up the water; that is the habitat that 24 they are associating with. 25 MR. NOMELLINI: Could they have been foraging in that 5755 01 area? 02 MR. VANDENBERG: When I saw them, they were just 03 hanging there. 04 MR. NOMELLINI: Hanging out? 05 MR. VANDENBERG: Hanging out. 06 MR. NOMELLINI: Would you agree that some minnow 07 species do use rock riprap as refugia? 08 MR. VANDENBERG: I would say that they would use 09 vegetation over rock riprap, that they would use -- that 10 they would seek a vegetated area. If that is all there was, 11 was rock and nothing else, just rock, I guess they would be 12 forced to use that. But given the choice between vegetation 13 and rock, I am sure they would select the vegetation. 14 MR. NOMELLINI: So your answer is, yes, that some 15 minnow species do use rock riprap as refugia. 16 MR. VANDENBERG: Given that no vegetation would be 17 available or is available. 18 MR. NOMELLINI: How far away from rock riprap would 19 vegetation have to be before it would draw these fish 20 species, minnows, away from the area? 21 MR. VANDENBERG: How far would the vegetation have to 22 be from the rock in order for the minnows to use the 23 vegetation? 24 MR. NOMELLINI: To not use the rock. 25 MR. VANDENBERG: In the experiment or sampling that we 5756 01 did at Staten Island, it was -- there was a very clear point 02 where the rock stopped and the vegetation started. That is 03 when we started picking up fish. 04 MR. NOMELLINI: How far? 05 MR. VANDENBERG: We had rock riprap and we had 06 vegetation, and as soon as we got past the rock riprap, we 07 started collecting fish at the vegetation. 08 MR. NOMELLINI: Is it your testimony you don't know how 09 far? 10 MR. VANDENBERG: The vegetation could be adjacent to 11 the rock, as it was in this case, and they were selecting 12 the vegetation over the rock. 13 MR. NOMELLINI: Where they are immediately adjacent to 14 each other, your testimony would be that all the fish that 15 would otherwise use rock riprap as refugia would go to the 16 vegetation? 17 MR. VANDENBERG: I am saying all the fish in this 18 capturing were using the vegetation. They were not using 19 the rock. 20 MR. NOMELLINI: Your only experience in this regard is 21 the one test you did over on Staten Island where you 22 electrocuted the fish? 23 MR. VANDENBERG: We didn't electrocute. 24 MR. NOMELLINI: What did you do to them? 25 MR. VANDENBERG: We electroshocked them. 5757 01 MR. NOMELLINI: Tell me what process that is, to 02 electroshock. 03 MR. VANDENBERG: Electrocute sounds like you stick end 04 plugs on their head and put them in a chair. 05 MR. NOMELLINI: What you did was you put probes in the 06 water? 07 MR. VANDENBERG: Probes in the water. 08 MR. NOMELLINI: On both sides of the fish and run a 09 current through them? 10 MR. BRANDT: Objection. Argumentative. 11 MR. NOMELLINI: Right; is that correct? 12 MR. BRANDT: My objection stands. Argumentative. 13 MR. NOMELLINI: What did you do in the electroshock 14 process? 15 C.O. CAFFREY: Thank you. 16 MR. VANDENBERG: We had probes in the water off the 17 boat and a net up front and ran a low level current that 18 stunned the fish and brought them up to the surface so we 19 could scoop them up in nets. 20 MR. NOMELLINI: Any of the fish die in that process? 21 MR. VANDENBERG: No, not in that experiment. 22 MR. NOMELLINI: Any endangered species shocked in that 23 process? 24 MR. VANDENBERG: I don't recall seeing any Delta smelt 25 during that experiment. 5758 01 MR. NOMELLINI: Other than that experiment, is there 02 any other basis for your determination, for your opinion 03 that the minnow species would not use rock riprap as 04 refugia? 05 MR. VANDENBERG: I don't believe they would use it as 06 refugia. 07 MR. NOMELLINI: I understand that. Is there any other 08 basis other than this electroshock test that you referred to? 09 MR. VANDENBERG: Other than -- when I walked along rock 10 riprap areas in the Delta, I have not seen minnow species 11 associating with that rock. 12 MR. NOMELLINI: Other than this one time when you sat 13 on the bank and you saw striped bass, what over time have 14 you gone out there and looked along the rock? 15 MR. VANDENBERG: During my own time, on weekends, I 16 have snorkeled down on the Sacramento River, and I've, you 17 know, looked for what was in the river. 18 MR. NOMELLINI: You didn't snorkel in the Delta area 19 over in the South Delta around these barriers, did you? 20 MR. VANDENBERG: No, I didn't. And other than that, I 21 haven't seen minnows associating with rock. 22 MR. NOMELLINI: Where were you when you were sitting on 23 the bank of the rock riprap levee and saw the striped bass? 24 MR. VANDENBERG: This was along -- it was in the 25 Central Delta. I don't know the location exactly at this 5759 01 point. 02 MR. NOMELLINI: This map I borrowed from Mr. Herrick, I 03 don't know if it has an exhibit number or not. 04 South Delta Water Agency 56. 05 Could you give us a location on that map? 06 MR. VANDENBERG: It would have been along Highway 160; 07 that is where I was driving down, and perhaps around -- I 08 said I don't exactly recall, but around Brannan Island. 09 MR. NOMELLINI: So, it would be along the Sacramento 10 River? You know that is the Sacramento River, don't you? 11 MR. VANDENBERG: Right. 12 MR. NOMELLINI: And it would be along 160, possibly in 13 the area of Brannan Island? 14 MR. VANDENBERG: To the best of my recollection. 15 MR. NOMELLINI: Going back to this Head of Old River 16 Barrier, we are talking about the temporary barrier now, you 17 have testified that the impact on smelt would be the 18 footprint impact on critical habitat, correct? 19 MR. VANDENBERG: Yes. 20 MR. NOMELLINI: In your opinion, placement of the rock 21 barrier would not add habitat for smelt in terms of refugia 22 because if there was vegetation anywhere nearby, they would 23 go over to the vegetated area; is that correct? 24 MR. VANDENBERG: That's correct. 25 MR. NOMELLINI: With regard to just hanging out, is 5760 01 that different than refugia for Delta smelt? 02 MR. VANDENBERG: It could or couldn't be. They are 03 either -- they are there for a reason. They are there 04 either to escape predation, either there to associate with 05 other fish that might be there. They are there for 06 feeding. They are just kind of being a fish. 07 MR. NOMELLINI: They just might be swimming by? 08 MR. VANDENBERG: They might be swimming. 09 MR. NOMELLINI: With regard to any of those things, is 10 the pile of rock that is associated with the temporary Head 11 of Old River Barrier in any way habitat for Delta smelt in 12 that regard? 13 MR. VANDENBERG: No, it's not. 14 MR. NOMELLINI: I believe you testified that you don't 15 think it would be used for attachment of eggs; is that 16 correct, Delta smelt eggs? 17 MR. VANDENBERG: That is correct. 18 MR. NOMELLINI: With regard to foraging, would it serve 19 any value for foraging for Delta smelt? 20 MR. VANDENBERG: The rock riprap? 21 MR. NOMELLINI: The rock riprap. 22 MR. VANDENBERG: I don't think it would provide the 23 function you need for an ecosystem to provide anything for 24 foraging. 25 MR. NOMELLINI: Would you agree that plant life would 5761 01 grow on the rocks? 02 MR. VANDENBERG: Not tules or plant life. Like, maybe 03 algae or something? 04 MR. NOMELLINI: Yes. 05 MR. VANDENBERG: It could grow on the rock. 06 MR. NOMELLINI: Would there be any food species for 07 Delta smelt that would grow on these rocks? 08 MR. VANDENBERG: I don't see them getting algae. 09 MR. NOMELLINI: Are there other forms of life that go 10 along with the algal growth on the rocks? 11 MR. VANDENBERG: Such -- 12 MR. NOMELLINI: Copepods, worms, insect larvae, things 13 of that type. 14 MR. VANDENBERG: It could. 15 MR. NOMELLINI: Would any of those constitute food for 16 any life form of Delta smelt? 17 MR. VANDENBERG: Delta do eat copepods. 18 MR. NOMELLINI: So the pile of rock associated with the 19 temporary Head of Old River Barrier could provide a food 20 source for Delta smelt that was otherwise not there; is that 21 correct? 22 MR. VANDENBERG: That would be a good source of a study 23 to go out and see. I would like to study that. It could. 24 It may not. 25 MR. NOMELLINI: You don't know, but you are willing to 5762 01 admit that is a possibility? 02 MR. VANDENBERG: It could be a possibility. 03 MR. NOMELLINI: Could be a possibility? 04 MR. VANDENBERG: It could, possibly. 05 MR. NOMELLINI: With regard to splittail, talking about 06 the footprint of the Head of Old River Barrier. Would that 07 adversely impact habitat for splittail? 08 MR. VANDENBERG: Yes, it would. 09 MR. NOMELLINI: In the same respect as Delta smelt or 10 is it different? 11 MR. VANDENBERG: Splittail seek flooded vegetation upon 12 which to spawn. The existence of rock would preclude the 13 vegetation that they are seeking from being there. 14 MR. NOMELLINI: So, it would be shallow areas that 15 contain the vegetation that are smothered by the rock, would 16 be the lost habitat for the splittail. Is that correct? 17 MR. VANDENBERG: That's correct. 18 MR. NOMELLINI: Would the rock, the pile of rock 19 constituting the barrier provide any habitat for any 20 life-form of splittail? 21 MR. VANDENBERG: Because the splittail seek flooded 22 vegetation to spawn, I would be doubtful that it would 23 provide any spawning substrate. Splittail get pretty large. 24 As you said, up to a foot. So I doubt that the crevices 25 within that rock would provide refugia habitat. 5763 01 As you talked about, there may be worms associated with 02 that rock, maybe, that would get caught up in there that 03 could provide some food source. 04 MR. NOMELLINI: A foraging area could be a possible 05 benefit from the pile of rock constituting the temporary 06 Head of Old River Barrier? 07 MR. VANDENBERG: It may have limited foraging 08 capabilities. 09 MR. NOMELLINI: Any other possible benefit to splittail 10 from the pile of rock constituting the Head of Old River 11 Barrier, the temporary barrier? 12 MR. VANDENBERG: Not that I can see. 13 MR. NOMELLINI: With regard to adverse impacts on 14 smelt, we have identified the footprint problem. Are there 15 any others that come to mind in terms of the temporary Head 16 of Old River Barrier? 17 MR. VANDENBERG: The temporary Head of Old River 18 Barrier does provide or does cause alteration in flows that 19 could redirect Delta smelt. 20 MR. NOMELLINI: That would be directing Delta smelt in 21 the San Joaquin River to go down river by Stockton rather 22 than go down Old River in the vicinity of the export pumps. 23 Is that the redirection of flow that you are talking about? 24 MR. VANDENBERG: The redirection of flow that I am 25 talking about is the flow that goes through Turner and 5764 01 Columbia Cut and the redirection of flows in the Central 02 Delta. 03 MR. NOMELLINI: So that the detriment that you see is 04 that Delta smelt in the Central Delta will be more 05 susceptible to flow towards the export pumps with the 06 temporary Head of Old River Barrier in place, as opposed to 07 the situation without it. Is that what you are telling me? 08 MR. VANDENBERG: It would certainly depend upon the 09 distribution of the species and the pumping at the 10 facilities. 11 MR. NOMELLINI: Let's take a hypothetical Delta smelt, 12 and let's find him in the San Joaquin River at the 13 confluence with Old River and just upstream of the Head of 14 Old River Barrier, and the barrier is in place. 15 Is there any detriment to that Delta smelt in forcing 16 him to go down the San Joaquin River by Stockton and out 17 into the Central Delta as opposed to going down Old River? 18 MR. VANDENBERG: Yes, there could be. 19 MR. NOMELLINI: What detriment do you see? 20 MR. VANDENBERG: If it is during spawning time and it's 21 upstream of Head of Old River and there is a female, 22 perhaps, laying eggs in Old River, it would not be able to 23 fertilize those eggs. 24 MR. NOMELLINI: Lost social contact would describe 25 that. 5765 01 Any other detriment to this hypothetical Delta smelt? 02 MR. VANDENBERG: It doesn't have the ability to go 03 where it chooses to go. Maybe it would choose to go down 04 Old River. It doesn't have that ability now. 05 So, the natural behavior of the species could be 06 affected. 07 MR. NOMELLINI: Would you agree if the expert pumps 08 were running and this Delta smelt were allowed to go down 09 Old River, that that route would have greater potential for 10 loss of the smelt due to entrainment than going down the San 11 Joaquin River as we have just discussed? 12 MR. VANDENBERG: Certainly, we would seek to keep the 13 Delta smelt out of the zone of influence on the pumps. And 14 by having it go down the San Joaquin River may provide a 15 benefit to an extent, but because of hydrology change, that 16 is caused by pumping and barrier installation, and the 17 increased flows through Turner and Columbia Cut, it could be 18 going down the San Joaquin River. It could then been 19 susceptible that way, and go into a north to south flow into 20 the pumps. 21 MR. NOMELLINI: But wouldn't it be worse for that smelt 22 to go right down Old River by the pumps then end up in the 23 Central Delta and then risk being drawn to the pumps? 24 MR. VANDENBERG: I suppose it would depend, again, on a 25 variety of other factors to make that determination. 5766 01 MR. NOMELLINI: Let's assume a given pumping rate. And 02 wouldn't you agree with a given pumping rate that it would 03 be worse for smelt to go down Old River than it would -- 04 C.O. CAFFREY: Off the record. 05 (Break taken.) 06 C.O. CAFFREY: I apologize to everybody for probably 07 the third false alarm we have had around here recently. 08 (Discussion held off the record.) 09 C.O. CAFFREY: Now we are on the record. 10 Mr. Nomellini, sir, you may proceed. 11 MR. NOMELLINI: To put this back in perspective, I 12 think I remembered where I was. 13 We had identified adverse impacts to smelt associated 14 with a temporary Head of Old River Barrier as those 15 associated with the footprint and the destruction of 16 critical habitat, the loss of social contact of smelt that 17 would end up on either side of the barrier, and then we were 18 pursuing the impact on smelt having to go down a route into 19 the Central Delta by way of Stockton, rather than down Old 20 River. And I think my last question was: Wouldn't you 21 agree given a level of pumping, that the worst place for a 22 Delta smelt to be would be in Old River headed towards the 23 pumps on the downstream side of the Head of Old River 24 Barrier? Do you agree? 25 MR. VANDENBERG: I thought you were still summing up. 5767 01 The worst place for a smelt to be would be to be 02 heading towards the pumps despite -- it would be equally as 03 bad if it was in the lower Old River and heading north to 04 south towards the barrier -- excuse me, towards the export 05 facilities. 06 MR. NOMELLINI: Let's focus in on that issue. Is it 07 your testimony that the risk of entrainment for Delta smelt 08 at the export pumping plants is the same for smelt going 09 west or down river in Old River as compared to a smelt 10 located in Turner Cut? 11 MR. VANDENBERG: If the flows in Turner Cut are such 12 that they are heading towards the export facilities and not 13 out towards the Bay, I say that would not be good for smelt 14 either. 15 MR. NOMELLINI: Are you really saying, though, that the 16 risk to that smelt is the same whether he was in Old River, 17 downstream of the Head of Old River Barrier, moving west as 18 it would be for the smelt in Turner Cut? 19 MR. VANDENBERG: Well, it depends on other aspects that 20 are going on out there. We are looking at just one fish 21 here. We need to be looking at the distribution of where 22 the species are and the effects to agricultural diversions, 23 as well. 24 MR. NOMELLINI: Putting aside the total numbers and 25 just focusing in on the one smelt, would you not agree that 5768 01 that smelt, in Old River downstream of Head of Old River 02 Barrier -- 03 MEMBER BROWN: Could you point to that on maps with 04 that marker. 05 MR. BRANDT: In that case, I think we need to specify 06 what this is. 07 Are you using South Delta Water Agency exhibit? 08 MR. NOMELLINI: Exhibit 56. 09 C.O. CAFFREY: He did identify it. 10 MR. BRANDT: I wasn't sure it was still identified. 11 Thanks. 12 MR. NOMELLINI: Let's make it easy. Let's put the 13 smelt in Old River right at the southwesterly tip of the 14 Victoria Island. That is smelt one. And let's put smelt 15 two in Turner Cut. Everybody knows where Lost Aisle is, 16 right? 17 The Turner Cut between McDonald Island and Lower 18 Roberts Island. All right, Mr. Vandenberg? 19 MR. VANDENBERG: Yes. 20 MR. NOMELLINI: Smelt one, smelt two. Is the risk of 21 entrainment in the export pumps, everything else the same 22 given level of pumping, greater for smelt one than it is for 23 smelt two? 24 MR. VANDENBERG: I would say the chances for smelt one 25 being entrained is greater than smelt two. 5769 01 MR. NOMELLINI: All right. 02 Is that because a greater proportion of the flow from 03 the location of smelt one is likely to go to the pumps than 04 at the location for smelt two? 05 MR. VANDENBERG: I would say smelt one is in closer 06 proximity to the export facilities, and, therefore, more 07 likely to be entrained. 08 MR. NOMELLINI: You know why? 09 MR. VANDENBERG: Because it is sitting right out in 10 front of the facility. 11 MR. NOMELLINI: Do you know why? 12 MR. VANDENBERG: Why the fish is sitting out -- 13 MR. NOMELLINI: No. Why it is more likely that he will 14 be entrained -- strike that. 15 Let's put it this way: Do you agree that Delta smelt 16 at some lifestage go with the flow? 17 MR. VANDENBERG: Yes, I would. 18 MR. NOMELLINI: Do you agree that, in general, even an 19 adult Delta smelt would go with the flow? 20 MR. VANDENBERG: They do have the capability to swim, 21 so they could go with the flow. They could go against the 22 flow. 23 MR. NOMELLINI: Would you agree that more of the flow 24 in the river at Delta smelt location number one would go to 25 the export pumps under a given level of pumping and all 5770 01 other circumstances being the same than would water at Delta 02 smelt location number two? 03 MR. VANDENBERG: Would more water tend to go into 04 Clifton Court Forebay? 05 MR. NOMELLINI: A greater percentage of the water from 06 location Delta smelt number one as opposed to location Delta 07 smelt number two. 08 MR. BRANDT: I am going to object. I am not sure -- 09 beyond the expertise of the witness. It is asking a 10 hydrological question where the water goes. 11 C.O. CAFFREY: It seems like we have had a lot of 12 questions on that order. I am going to ask the witness to 13 answer the question if he knows the answer and has an 14 opinion. 15 MR. VANDENBERG: I don't know. 16 MR. NOMELLINI: What reason other than flow would there 17 be for Delta smelt number one, which is at the southwesterly 18 tip of Victoria Island, having a greater chance of being 19 entrained in the export pumps as opposed to Delta smelt 20 number two in Turner Cut? 21 MR. VANDENBERG: Because of its proximity to where the 22 pumps are, where it is in relation to the pumps, it would be 23 more likely that Delta smelt one would move into being 24 entrained than the one in Turner Cut. 25 MR. NOMELLINI: Is it your opinion that the proportion 5771 01 of the water that would flow to the pumps is not a factor in 02 the greater exposure of Delta smelt number one to the pumps 03 versus Delta smelt number two? 04 MR. VANDENBERG: Depending on the operation of the 05 gates at Clifton Court Forebay. If it is a ebb tide and the 06 gates are closed and they are pumping water out of the 07 forebay, but the smelt is in front of a gate that is closed, 08 it could have an opportunity to swim out. 09 MR. NOMELLINI: Okay. Are you aware of the fact that 10 the federal pumps do not pump from the forebay? 11 MR. VANDENBERG: Yes, I am. 12 MR. NOMELLINI: Would that change the situation you 13 just described? 14 MR. VANDENBERG: I think it would lessen draw towards 15 the Tracy pump. 16 MR. NOMELLINI: I didn't understand that. 17 MR. VANDENBERG: If the gate was closed at Clifton 18 Court Forebay and just Tracy was pumping out of the river, 19 there would be an influence from that pump on the Delta 20 smelt or Delta smelt one, and that influence would be less 21 than the influence of having the gate open at Clifton Court 22 Forebay. 23 MR. NOMELLINI: So that the less drawn on the river 24 caused by either the forebay operation or the pumps, the 25 less likely it is to draw a Delta smelt into the pumps. Is 5772 01 that what you are saying? 02 MR. VANDENBERG: The Delta smelt are weak swimmers. It 03 may have an opportunity to swim out, but given the draw of 04 the pumps, it would have -- a higher draw, it would have a 05 harder time. 06 MR. NOMELLINI: Let's assume that situation is exactly 07 the same. Is it your testimony still that Delta smelt 08 number one would have a greater exposure to being entrained 09 than Delta smelt number two? 10 MR. VANDENBERG: Well, it would depend on the hydrology 11 or the water flow in the Delta system, and it would depend 12 on other factors here. But it is more likely that Delta 13 smelt number one would be entrained. 14 MR. NOMELLINI: It is true that Delta smelt number two 15 in order to be entrained has to go over -- right by Delta 16 smelt number one location, right? 17 MR. VANDENBERG: In order for it to be entrained at the 18 export facility, it could be entrained through agricultural 19 facilities. 20 MR. NOMELLINI: At the export facilities it would have 21 to go through that same location as Delta smelt number one, 22 right? 23 MR. VANDENBERG: That's correct. 24 MR. NOMELLINI: Would your testimony with regard to the 25 exposure of Delta smelt number one being greater than, and 5773 01 this is entrainment at the export pumps as opposed to Delta 02 smelt number two be the same if Delta smelt number one was 03 located just downstream of a temporary Head of Old River 04 Barrier? 05 MR. VANDENBERG: Depending on the tide. If the flap 06 gates were open on the Head of Old River Barrier, it would 07 have a chance to go through that barrier and down San 08 Joaquin. 09 MR. NOMELLINI: So it would swim through the flap gate 10 against the flow of current into the San Joaquin, you 11 think? 12 MR. VANDENBERG: With the flow? 13 MR. NOMELLINI: No, against the flow. You would agree 14 that the flap gate on the Head of Old River Barrier, if it 15 were open, would allow water from the San Joaquin to enter 16 Old River, would you not? 17 MR. VANDENBERG: The temporary -- let me back up. The 18 temporary -- we are talking about the temporary barrier at 19 Head of Old River? 20 MR. NOMELLINI: Yes. 21 MR. VANDENBERG: That currently doesn't have flap gates 22 on it. 23 MR. NOMELLINI: You mentioned the flap gate. 24 MR. VANDENBERG: I am sorry. 25 MR. NOMELLINI: The flap gate idea would be cast aside 5774 01 with the present configuration of a temporary Head of Old 02 River Barrier, correct? 03 Wouldn't that Delta smelt number one, if he was located 04 just downstream of the temporary Head of Old River Barrier, 05 be more likely to be entrained in the pumps than Delta smelt 06 number two, given the same tides, pumping rates, et cetera? 07 MR. VANDENBERG: I think that if the tide is flooding 08 up and pumping is going on at the export facilities and the 09 velocities through Turner Cut are such that they're moving 10 the fish and the draw of the water is moving the fish, the 11 one in Turner Cut could be drawn into the area of lower 12 Victoria Island while the one at the Head of Old River is 13 either pushed up against that barrier or stays by that 14 barrier. 15 MR. NOMELLINI: So he could be in a null zone or some 16 zone of very little water movement. Is that your 17 testimony? 18 MR. VANDENBERG: He would be held up against that with 19 the incoming tides. 20 MR. NOMELLINI: One of the adverse impacts, an 21 additional adverse impact associated with the temporary Head 22 of Old River Barrier would be, under certain circumstances, 23 exposure of Delta smelt to greater entrainment at the export 24 pumps. Is that correct? 25 MR. VANDENBERG: Yes. 5775 01 MR. NOMELLINI: Is there any adverse impact from the 02 temporary Head of Old River Barrier with regard to exposure 03 of Delta smelt to greater levels of contaminants from the 04 San Joaquin River? 05 MR. VANDENBERG: Some of the water from the San Joaquin 06 River does flow through the rock barrier. If the smelt is 07 near that rock barrier, it necessarily wouldn't have the 08 chance to escape those flows coming through. 09 MR. NOMELLINI: How about the smelt in the Central 10 delta over near Turner Cut? 11 MR. BRANDT: Objection. Vague. 12 MR. NOMELLINI: With regard to greater exposure to 13 contaminants from the San Joaquin River because of 14 temporary Head of Old River Barrier? 15 MR. VANDENBERG: If the temporary Head of Old River 16 Barrier was installed, smelt at Turner Cut could experience 17 a higher level of contaminants from the water flowing down 18 the San Joaquin. 19 MR. NOMELLINI: We have identified, I think -- you want 20 to confer for a minute? 21 MR. BRANDT: No. 22 MR. NOMELLINI: We have identified, I think, basically 23 four areas of adverse impact to Delta smelt from temporary 24 Head of Old River Barrier. 25 Are there any others that come to mind? 5776 01 MR. VANDENBERG: The temporary barrier causing changes 02 in the hydrology of the Delta essentially causes a change 03 throughout the channels in the Central Delta and Southern 04 Delta. So there are changes throughout the Central and 05 Southern Delta. 06 MR. NOMELLINI: Are they good or bad for Delta smelt? 07 MR. VANDENBERG: Depending on the circumstances, on 08 where the smelt are, on how the pumps are operating, on how 09 the agricultural diversions are operating, it depends on a 10 lot of variables. 11 MR. NOMELLINI: But there could be some detriment. Is 12 that your testimony? From the general changes other than 13 the specifics that we talked about? 14 MR. VANDENBERG: There could be detriment. 15 MR. NOMELLINI: If we compared a temporary Head of Old 16 River Barrier to a permanent Head of Old River Barrier that 17 had an operable gate, is there any additional detriment to 18 Delta smelt that would come from that change? 19 MR. VANDENBERG: It would, again, depend on other 20 conditions in the Delta. 21 MR. NOMELLINI: Would the footprint impact on Delta 22 smelt be different with a permanent barrier versus a 23 temporary Head of Old River Barrier? 24 MR. VANDENBERG: The overall footprint for the 25 temporary barriers project is approximately 2.23 acres. The 5777 01 footprint of the permanent barriers is approximately 3 02 acres. 03 MR. NOMELLINI: You are talking about all four barriers? 04 MR. VANDENBERG: Yes, I am. 05 MR. NOMELLINI: Speaking only with regard to Head of 06 Old River Barrier. 07 MR. VANDENBERG: I haven't broken that down. I looked 08 at the cumulative impacts. 09 MR. NOMELLINI: So, there may be a difference if the 10 permanent barrier covered up a greater amount of area that 11 is ten feet or less, then it would have a greater footprint 12 impact on Delta smelt than would the temporary barrier; is 13 that correct? 14 MR. VANDENBERG: If the permanent barrier is bigger, it 15 would have a greater footprint impact than the temporary 16 barrier. 17 MR. NOMELLINI: Is there a greater impact associated 18 with a longer period of time? Temporary barrier, for 19 example, with a five-year program. Is there an element for 20 permanent barrier that would be attributed to covering up 21 the critical habitat for a longer period of time? 22 MR. VANDENBERG: In looking at all of the project 23 components of the temporary barrier project and ISDP, I made 24 a determination that the temporary barrier project was 25 temporary in nature; and, therefore, it didn't cause a 5778 01 jeopardy to the species. The permanent and ISDP, as 02 proposed with all of its elements, did jeopardize the 03 species. 04 MR. NOMELLINI: You said that basically for a short 05 period of time, for a test or whatever, the species can 06 survive, but longer terms these impacts would be of such a 07 nature that they would jeopardize the species. Is that what 08 you are telling me? 09 MR. VANDENBERG: We minimize the impacts of taking the 10 temporary barriers opinion to address the test barrier, to 11 essentially get us out of a jeopardizing situation. The 12 permanent barriers, with all of their other components, led 13 us to a jeopardy opinion. 14 MR. NOMELLINI: If we look only at the Head of Old 15 River Barrier, permanent versus temporary, can you tell us 16 if we have crossed the threshold to where now a permanent 17 Head of Old River Barrier would create the jeopardy to Delta 18 smelt? 19 MR. VANDENBERG: I wouldn't look at one component 20 individually in making that determination. I would look at 21 that component in conjunction with all the other components 22 as they were proposed. 23 MR. NOMELLINI: Is it correct that you have not made 24 such an analysis for the permanent Head of Old River 25 Barrier? 5779 01 MR. BRANDT: Objection. Vague, I think it may have 02 been asked and answered if I understand. But I am not sure 03 I understand. So objection is vague. 04 C.O. CAFFREY: In the interest of moving things along, 05 is -- 06 MR. NOMELLINI: Have you analyzed the permanent Head of 07 Old River Barrier as referenced in the San Joaquin River 08 Agreement with regard to its impact on Delta smelt? 09 MR. VANDENBERG: I looked at the Head of Old River 10 Barrier and the other components of ISDP as it was proposed 11 and made my determination. 12 MR. NOMELLINI: So you have not analyzed the Head of 13 Old River Barrier -- the permanent Head of Old River 14 Barrier as a separate project from the ISDP; is that correct? 15 MR. VANDENBERG: My analysis of the permanent barrier 16 was dealing with the proposed ISDP program. 17 C.O. STUBCHAER: Was that a yes or no? 18 MR. NOMELLINI: Yes, you have not analyzed the 19 permanent Head of Old River Barrier as a separate project, 20 correct? 21 C.O. CAFFREY: Mr. Stubchaer has a question on the 22 table. He asked if that was a yes or no? 23 MR. NOMELLINI: I thought it asked for a yes or no. 24 MR. VANDENBERG: I am saying my analysis of the 25 permanent barrier was only done under ISDP. I didn't 5780 01 analyze the temporary barrier as it relates to the San 02 Joaquin River -- excuse me, the permanent barrier as it 03 relates to the San Joaquin River Agreement. 04 C.O. CAFFREY: Right, Mr. Stubchaer. 05 C.O. STUBCHAER: Yes. 06 C.O. CAFFREY: Go ahead, Mr. Nomellini. 07 MR. NOMELLINI: If you analyzed the Head of Old River 08 Barrier, permanent of Old River Barrier, separate and apart 09 from ISDP, in your opinion, would you expect to reach 10 different conclusions? 11 MR. VANDENBERG: I would need to review that. I 12 wouldn't make an opinion on that at this point. 13 MR. NOMELLINI: Do you know of any plans to perform 14 such a review? 15 MR. VANDENBERG: No, I don't. 16 MR. NOMELLINI: Do you know whether or not the U.S. 17 Fish and Wildlife Service supports the installation of a 18 permanent Head of Old River Barrier? 19 MR. VANDENBERG: We currently have a biological opinion 20 that authorizes a temporary barrier at the Head of Old 21 River, and that is what we have right now. 22 MR. NOMELLINI: I am going to ask it again. Do you 23 know whether or not the U.S. Fish and Wildlife Service 24 supports a permanent Head of Old River Barrier project? 25 MR. VANDENBERG: I don't know. We have an opinion on 5781 01 the construction of a permanent barrier as it relates to 02 ISDP as proposed, which currently is a jeopardy opinion, and 03 that's what we have right now. 04 MR. NOMELLINI: That is a negative, right? 05 MR. VANDENBERG: I don't know if Fish and Wildlife 06 Service is considering a placement of a permanent barrier as 07 a stand alone project. Just with -- I have not been 08 involved in any discussions on installing that permanent 09 barrier. Period. Just the permanent barrier. 10 C.O. CAFFREY: Mr. Nomellini, as you pause there, let 11 me check with you as to how much more time you think you 12 need to cause it to close only for the purpose of -- 13 MR. NOMELLINI: I apologize. 14 C.O. CAFFREY: Don't apologize. 15 MR. NOMELLINI: I have more questions. It has not gone 16 as rapidly as I anticipated it would. I am going to need 17 more time, possibly another hour. 18 MR. BRANDT: I think I need to help you more by 19 objecting to asked and answered. 20 MR. NOMELLINI: That would help a lot. That ought to 21 make it an hour and a half. 22 C.O. CAFFREY: Based only on Mr. Brandt's eloquence. 23 You are going to take, probably, another hour, you 24 think? 25 MR. NOMELLINI: Possibly, yes. 5782 01 C.O. CAFFREY: We might as well break for lunch now and 02 come back at 1:15. 03 (Luncheon break taken.) 04 --oOo--- 05 06 07 08 09 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 5783 01 AFTERNOON SESSION. 02 ---oOo--- 03 C.O. CAFFREY: We are back. Mr. Nomellini, you have 04 changed. 05 MR. O'LAUGHLIN: Not for the better, probably. 06 C.O. CAFFREY: I wouldn't say that. 07 MR. NOMELLINI: I agree with that. 08 C.O. CAFFREY: Mr. O'Laughlin. 09 MR. O'LAUGHLIN: I rise to bring up a procedural 10 matter. The San Joaquin River Group Authority had requested 11 that a subpoena be issued for a deposition. Counsel for the 12 State Water Resources Control Board, Barbara Leidigh, issued 13 a subpoena for Mr. Tom Howard for deposition to take place 14 November 5th and 6th. That was sent out along with a letter 15 from Ms. Leidigh to all the parties in the State Water 16 Resources Control Board hearing process, saying that the 17 deposition could be taken or that we could call Mr. Howard 18 on direct, if we wanted to, and issue a subpoena at that 19 time. 20 We have decided -- there is a letter that has been 21 faxed to Ms. Leidigh, sent to all the parties today to 22 withdraw our subpoena to take the deposition of Mr. Howard 23 on the 5th and 6th, reserving our right to have a subpoena 24 issued for his direct testimony, if it is needed in Phase 25 II-A. So, people can clear their calendars for the 5th and 5784 01 6th. 02 C.O. CAFFREY: Thank you for informing us on that, Mr. 03 O'Laughlin. 04 Ms. Leidigh, do you wish to add anything to that? 05 MS. LEIDIGH: I don't think there is anything to add. 06 He is withdrawing his request for a subpoena for a 07 deposition to be held on the 5th and 6th. So there will not 08 be a deposition on those dates. 09 C.O. CAFFREY: I only give you the opportunity in the 10 spirit of democracy. Thank you for your comment. 11 Thank you, Mr. O'Laughlin. 12 Mr. Nomellini, you said that you might have another 13 hour of cross-examination left. I want to remind the 14 witness that the length of cross-examination is somewhat in 15 the control of the witness, not just you, but any witness, 16 Mr. Vandenberg. So that the crispness of your answers or 17 the brevity of them or the extent to which they get to the 18 point also helps shorten the length of time in 19 cross-examination. 20 MR. NOMELLINI: That means he wants us to hurry up. 21 C.O. CAFFREY: Never said that. 22 MR. NOMELLINI: Just a comment among us chickens out 23 here. 24 C.O. CAFFREY: All right, Mr. Nomellini, you may 25 proceed. 5785 01 MR. NOMELLINI: Back on the differences in impact on 02 Delta smelt of a temporary Head of Old River Barrier and a 03 permanent Head of Old River Barrier. 04 We had covered the footprint aspect, and I believe your 05 testimony was that it could be different in some respects; 06 is that correct? 07 MR. VANDENBERG: That's correct. 08 MR. NOMELLINI: With regard to the socialization of 09 Delta smelt and the interference by a temporary Head of Old 10 River Barrier, if a permanent Head of Old River Barrier was 11 operable, would that adverse impact on Delta smelt be 12 mitigatable, in your opinion? 13 MR. VANDENBERG: I think that there is mitigation that 14 could be provided as identified in the draft ISDP opinion 15 that would offset the impacts not only the Head of Old River 16 Barrier, but all components of ISDP as proposed. 17 MR. NOMELLINI: Would you agree that the operational 18 aspect of the Head of Old River Barrier would allow the 19 barrier to be opened so that it would no longer obstruct the 20 free passage of Delta smelt if that was a concern at the 21 time? 22 MR. VANDENBERG: It would depend on how long it's 23 opened and the distribution of the fish. 24 MR. NOMELLINI: In terms of the fact that you could now 25 open the barrier with some type of an electronic device, or 5786 01 what have you, would be an advantage, would it not, over a 02 temporary barrier which takes a longer period of time to 03 remove? 04 MR. VANDENBERG: Simply operating the gate, a permanent 05 structure wouldn't necessarily remove adverse effects. You 06 would have to or one would have to look at the distribution 07 of the species, where they are, what is happening. 08 Opening up the gate opening may hasten, if that is 09 required -- if like a trigger is tripped that identifies 10 some action to be taken, and if that action is opening up 11 the flap gates or reducing pumping or opening up a radial 12 gate, that sort of information would have to be reviewed at 13 that time, and it may work to the advantage, it may not. It 14 just depends on other situations. 15 MR. NOMELLINI: Focusing only on the socialization of 16 smelt, not talking about all the rest of these factors you 17 threw in there, but the fact that -- and you had indicated 18 that a smelt, a male smelt, might be on one side of the 19 barrier and a female smelt on the other, and, therefore, 20 the fact the barrier was there would be an adverse impact. 21 Now, am I correct so far in what you previously testified to? 22 MR. VANDENBERG: Yes. 23 MR. NOMELLINI: Looking only at the operable feature of 24 the permanent barrier versus the temporary Head of Old River 25 Barrier, would it not be an advantage to have an operable 5787 01 barrier as opposed to the temporary barrier? 02 MR. VANDENBERG: I did not do an analysis simply on the 03 operation of a permanent barrier solely as a stand-alone 04 project. I would need more information and I would need to 05 consider that information and address that at a different 06 time. 07 MR. NOMELLINI: Opening the barrier faster if fish and 08 wildlife wanted it open would not be an advantage? 09 MR. VANDENBERG: I didn't review sole operation of the 10 Head of Old River Barrier. I would have to -- I am not 11 ready to offer an opinion on that at this time. 12 MR. NOMELLINI: What are the possible disadvantages of 13 having an operable barrier in place of a rock barrier at the 14 Head of Old River? 15 MR. BRANDT: I am going to object to try and help speed 16 this along. This is the third time we have done this line 17 of questioning about the benefits of a permanent versus a 18 temporary. We did it with DWR. We did it with Mr. Herrick 19 yesterday, and now we are doing it a third time. Is it 20 necessary we do this again? We can do it. 21 C.O. CAFFREY: I am going to allow the question, but I 22 am also going to observe, without prejudice in any way to 23 you, Mr. Brandt, that the last question could have been 24 answered, "I don't know." And he went on rather in detail. 25 And we have allowed people to qualify their answers. That 5788 01 is your call within reason. 02 I just want to observe that the whole process can be 03 hurried along by crisper answers that get to the point 04 immediately. 05 Go ahead, answer the question or unless -- if you 06 remember what it was, Mr. Vandenberg. If not, we will ask 07 Mr. Nomellini -- 08 MR. NOMELLINI: Do you remember the question? 09 MR. VANDENBERG: I don't know the answer. 10 MR. NOMELLINI: You don't know any of the 11 disadvantages associated with having an operable barrier in 12 place of a rock barrier at the Head of Old River; isn't that 13 correct? 14 MR. VANDENBERG: I said I don't know. I thought we 15 were supposed to try and speed things along. This is asking 16 the question again. 17 MR. NOMELLINI: I ask the Chair to direct him to answer 18 that question. He's leaving it ambiguous, and I think we 19 need a clear answer. 20 C.O. CAFFREY: Let's hear the question again. 21 MR. NOMELLINI: All right. I am going to rephrase it 22 to help. 23 Isn't it true, Mr. Vandenberg, that you do not know of 24 any disadvantages to Delta smelt by having an operable Head 25 of Old River Barrier in place of a rock barrier? 5789 01 MR. VANDENBERG: I did not do that analysis. I don't 02 know. 03 MR. NOMELLINI: With regard to the impact of water 04 quality on Delta smelt associated with having a temporary 05 Head of Old River Barrier, would a permanent Head of Old 06 River Barrier have any different impact? 07 MR. VANDENBERG: I didn't analyze the permanent barrier 08 solely versus the temporary barrier, so I don't know the 09 answer to that question. 10 MR. NOMELLINI: Are you familiar with the San Joaquin 11 River Agreement? 12 MR. VANDENBERG: I am familiar that a San Joaquin River 13 agreement exists. I have had not any input into that. 14 MR. NOMELLINI: Are you aware of the fact that the Fish 15 and Wildlife Service has signed off on a memorandum 16 associated with the San Joaquin River Agreement? 17 MR. VANDENBERG: No, I'm not. 18 MR. NOMELLINI: Are you aware of any consultation with 19 regard to Delta smelt that was initiated, either formally or 20 informally, as related to the San Joaquin River Agreement? 21 MR. VANDENBERG: No, I'm not. 22 MR. NOMELLINI: In the preparation of your biological 23 opinion, your Draft Biological Opinion, for the ISDP, did 24 you take into consideration in any way the work of Richard 25 Oltmann, which is represented in Department of Interior 5790 01 Exhibit 15-B? 02 MR. VANDENBERG: I am not familiar with that exhibit. 03 MR. NOMELLINI: Let me show it to you. 04 C.O. CAFFREY: I am sorry, Mr. Nomellini, for me and I 05 am sure everybody heard it, could you explain what Exhibit 06 that is. 07 MR. NOMELLINI: That is 15-B of Department of Interior. 08 C.O. CAFFREY: Thank you, sir. 09 MR. VANDENBERG: No, I did not. 10 MR. NOMELLINI: Have you seen it before? 11 MR. VANDENBERG: That is the first I saw it. 12 MR. NOMELLINI: With regard to the biological opinion 13 which is attached as Exhibit 16-B, DOI 16-B, to your 14 testimony, are you familiar with that exhibit? 15 MR. VANDENBERG: Yes, I am. 16 MR. NOMELLINI: What is that exhibit? 17 MR. VANDENBERG: That is the Formal Endangered Species 18 Consultation and Conference on the Proposed South Delta 19 Temporary Barrier Project for '96 through the year 2,000. 20 MR. NOMELLINI: Did you participate in the preparation 21 of that biological opinion? 22 MR. VANDENBERG: Yes, I did. 23 MR. NOMELLINI: What was your role? 24 MR. VANDENBERG: I wrote this document. 25 MR. NOMELLINI: Was it submitted through a similar 5791 01 process as you described for the Draft Biological Opinion on 02 the ISDP? 03 MR. VANDENBERG: Yes, with the exception that it wasn't 04 sent to the regional office. 05 MR. NOMELLINI: Is there a reason for the difference in 06 the procedure? 07 MR. VANDENBERG: This was a no-jeopardy opinion, and 08 those don't necessarily have to go to the region. 09 MR. NOMELLINI: The region in the case of ISDP would 10 have been who? 11 MR. VANDENBERG: Region one. 12 MR. NOMELLINI: Who would be the party? 13 MR. VANDENBERG: Mike Spear. 14 MR. NOMELLINI: The ISDP did go to Mike Spear, the 15 biological opinion on the ISDP did go to Michael Spear, as 16 well? 17 MR. VANDENBERG: Yes, it did. You said "as well." 18 MR. NOMELLINI: It went to Cay Goude, Mike Thabault, 19 Jim Browning and Alison Willy. Correct? 20 MR. VANDENBERG: Yes. 21 MR. NOMELLINI: Then it went to Michael Spear? 22 MR. VANDENBERG: That's correct. 23 MR. NOMELLINI: In the case of Exhibit 16-B, after you 24 prepared a draft, where did it go? 25 MR. VANDENBERG: It went through the surname chain. 5792 01 MR. NOMELLINI: Who would that have been at that time? 02 MR. VANDENBERG: The same individuals that you have 03 identified -- that I had identified earlier and you had just 04 repeated. 05 MR. NOMELLINI: Is Cay Goude in a different category 06 than Mike Thabault in terms of chain of command? 07 C.O. CAFFREY: Thank you for clarifying that. 08 MR. NOMELLINI: I could hear it coming. 09 C.O. CAFFREY: Delicate matter. 10 MR. VANDENBERG: Yes, they are. 11 MR. NOMELLINI: How is that different? 12 MR. VANDENBERG: Mike Thabault is the assistant -- 13 Deputy Assistant Field Supervisor and Cay Goude is the Chief 14 of Endangered Species. 15 MR. NOMELLINI: Who is the boss out of the two? 16 MR. VANDENBERG: Mike is, on paper. 17 MR. NOMELLINI: I understand that. 18 MR. VANDENBERG: Mike is the boss. 19 C.O. CAFFREY: He is not here, is he? 20 He is, I'm sorry. 21 MR. THABAULT: Thank you, Mr. Caffrey. 22 C.O. CAFFREY: I stand corrected. 23 MR. NOMELLINI: Referring now to 16-B and Page 8, there 24 is a discussion about spawning habitat for Delta smelt, and 25 there is a listing of sloughs: Beaver, Hog and Sycamore 5793 01 Sloughs. Do you see that? 02 MR. VANDENBERG: I see Beaver, Hog and Sycamore 03 Sloughs. There are also other sloughs listed. 04 MR. NOMELLINI: Let's focus on Beaver, Hog and Sycamore 05 Sloughs. If a Delta smelt is in Beaver, Hog or Sycamore 06 Slough, how does he get flushed out of that area? 07 MR. VANDENBERG: Either through tidal action or it 08 swims out. 09 MR. NOMELLINI: So there doesn't have to be a net flow 10 out of that slough in order for that smelt to go out and 11 towards the west? 12 MR. VANDENBERG: These are dead-end sloughs. As the 13 tidal action sloshes back and forth, it can move the fish 14 out. 15 MR. NOMELLINI: Wouldn't that be a similar case at 16 Turner Cut? 17 MR. VANDENBERG: How do you mean "similar case"? 18 MR. NOMELLINI: Tidal action moving the fish. 19 MR. VANDENBERG: There is tidal action in Turner Cut 20 that would move the fish. 21 MR. NOMELLINI: The tidal action -- would you rate the 22 tidal action in Turner Cut as being greater or less than the 23 tidal action in Beaver Slough? 24 MR. BRANDT: Objection. Beyond the expertise of this 25 witness. 5794 01 MR. NOMELLINI: If you know. 02 C.O. CAFFREY: You are nodding in the affirmative. I 03 assume you are agreeing with your counsel, Mr. Vandenberg? 04 MR. VANDENBERG: Yes, I am. 05 C.O. CAFFREY: Next question, Mr. Nomellini. 06 MR. NOMELLINI: On Page 9, at the bottom of the page, 07 there is a statement that: 08 Historically Sacramento splittail were found 09 as far north as Redding on the Sacramento 10 River and as far south as the site of Friant 11 Dam on the San Joaquin River. (Reading.) 12 You see that? 13 MR. VANDENBERG: Yes, I do. 14 MR. NOMELLINI: Does the San Joaquin River constitute 15 critical habitat for Sacramento splittail? 16 MR. VANDENBERG: Sacramento splittail is not listed. 17 Critical habitat is not a part -- critical habitat is for 18 listed species. 19 MR. NOMELLINI: So the technical term "critical 20 habitat" is associated with a listing of particular species; 21 is that correct? 22 MR. VANDENBERG: It is associated with a listed 23 species. 24 MR. NOMELLINI: In terms of habitat in a generic sense, 25 is the San Joaquin River habitat for Sacramento splittail? 5795 01 MR. VANDENBERG: Yes, it is. 02 MR. NOMELLINI: Would that habitat run to the Friant 03 Dam, in your opinion? 04 MR. VANDENBERG: Yes, it would. 05 MR. NOMELLINI: On Page 21 of Exhibit 16-B, there is a 06 title, reference is Conservation Recommendations. 07 Do you see that? 08 MR. VANDENBERG: Yes, I do. 09 MR. NOMELLINI: Underneath that title there is a 10 statement that: 11 Sections 2 (C) and 7 (A) (1) of the act 12 direct federal agencies to utilize their 13 authorities to further the purposes of the 14 act by carrying out conservation programs for 15 the benefit of endangered and threatened 16 species and the ecosystem upon which they 17 depend. (Reading.) 18 Do I read that correctly? 19 MR. VANDENBERG: Yes, you did. 20 MR. NOMELLINI: Is it your understanding that the 21 Bureau of Reclamation is required to use their authority for 22 carrying out conservation recommendations listed on Page 23 21? 24 MR. VANDENBERG: Conservation recommendations are 25 discretionary actions that could be taken by the federal 5796 01 agency to utilize its authority in furtherance of the 02 purposes of the act. 03 MR. NOMELLINI: So they don't have to? 04 MR. VANDENBERG: They don't have to do this. 05 MR. NOMELLINI: So this statement of law or statement 06 that I read is not correct; is that true, that this is not 07 correct? 08 MR. BRANDT: It calls for a legal conclusion. 09 MR. NOMELLINI: If you know. 10 C.O. CAFFREY: If you know the answer, you can go ahead. 11 MR. VANDENBERG: That is what I was going to say, it 12 calls for a legal conclusion. I don't have that legal 13 expertise. 14 MR. NOMELLINI: Under recommendation Number 1: 15 Decrease pumping at the CVP/SWP export 16 facilities so that the problems caused to the 17 South Delta water users association 18 alleviated -- (Reading.) 19 I think there is a word missing there. 20 -- alleviated and the need for the use of the 21 temporary rock barriers are eliminated. 22 (Reading.) 23 Do you see that? 24 MR. VANDENBERG: Yes, I do. 25 MR. NOMELLINI: Did you write that? 5797 01 MR. VANDENBERG: Yes, I did. 02 MR. NOMELLINI: What does it mean? 03 MR. VANDENBERG: What I was getting at there is it 04 seems that the problem or the need for the barriers has 05 arisen from problems caused by export pumping; and if those 06 export -- if the export pumping is addressed such that the 07 problems of the South Delta go away, we don't need the 08 barriers to raise water levels. 09 MR. NOMELLINI: Did the Bureau of Reclamation exercise 10 its discretion to carry out this recommendation, as far as 11 you know? 12 MR. VANDENBERG: Not to the full extent. 13 MR. NOMELLINI: With regard to Number 2: 14 Water Resources should develop a program for 15 threatened and endangered species that allows 16 acquisition and management of areas in the 17 South and Central Delta used as spawning 18 habitat to prevent destruction and adverse 19 effects caused by barrier installation and 20 operation. (Reading.) 21 Did you write that? 22 MR. VANDENBERG: Yes, I did. 23 MR. NOMELLINI: What does that mean? 24 MR. VANDENBERG: That the Department of Water Resources 25 acquire land and set that aside for endangered species. 5798 01 MR. NOMELLINI: Number 3: 02 Water Resources should develop an 03 ecosystem-centered analysis of the Bay-Delta 04 to promote an understanding of the 05 interrelated effects of operating the CVP/SWP 06 in conjunction with the temporary barriers. 07 (Reading.) 08 Did you write that? 09 MR. VANDENBERG: Yes, I did. 10 MR. NOMELLINI: What does that mean? 11 MR. VANDENBERG: That Water Resources should develop an 12 understanding of how the pumps in conjunction with the 13 barriers affect the species. 14 MR. NOMELLINI: Is there any reason why there was not a 15 recommendation to further curtail pumping at times when 16 Delta smelt are located in areas that make them vulnerable 17 to export pumping? 18 MR. VANDENBERG: No. 19 MR. NOMELLINI: Is it possible, in your opinion, to 20 ascertain where Delta smelt are located in the Delta at any 21 given time? 22 MR. VANDENBERG: It's possible to get an idea of where 23 they might be located. 24 MR. NOMELLINI: This idea, would that indicate 25 concentrations? 5799 01 MR. VANDENBERG: Distribution, concentrations. 02 MR. NOMELLINI: So that your answers to questions that 03 relied on how Delta smelt was distributed at a particular 04 time would be changed, would they not, if operations could 05 be adjusted in light of the distribution of Delta smelt? 06 MR. VANDENBERG: I am trying to follow that. I didn't 07 quite understand. 08 MR. NOMELLINI: You had indicated in answer to a number 09 of questions that whether or not there was an adverse impact 10 on Delta smelt depended on the distribution of smelt; is 11 that correct? 12 MR. VANDENBERG: I said it depended in part on the 13 distribution. 14 MR. NOMELLINI: If we knew where the smelt were located 15 and we had an operable barrier system, for example, could we 16 not, then, operate differently depending on the distribution 17 of smelt and thereby reduce any adverse impact on the 18 smelt? 19 MR. VANDENBERG: In some cases, but not in others. 20 MR. NOMELLINI: You indicated that with regard to the 21 Biological Opinion for the ISDP that the adverse impacts to 22 Delta smelt could be mitigated; is that correct? 23 MR. VANDENBERG: Yes. I provided a reasonable and 24 prudent alternative. 25 MR. NOMELLINI: In general terms, could you describe 5800 01 what the mitigation would be. 02 MR. VANDENBERG: Essentially, what I was getting at was 03 to continue to operate the temporary barriers as they are 04 currently proposed or in compliance with the act, because we 05 have addressed those effects already. To look to CalFed to 06 help make a decision on how the permanent barriers or if the 07 permanent barriers would be installed or if CalFed requires 08 ecosystem restoration, ISDP as a stand alone project did 09 not. So, we seek the expertise of CalFed to help us make 10 this decision. 11 MR. NOMELLINI: So the habitat impact could be taken 12 care of with construction of projects that created similar 13 habitat; is that correct? 14 MR. VANDENBERG: I would think that -- could you repeat 15 the question. 16 MR. NOMELLINI: Is it limited to habitat? When you say 17 "the CalFed restoration effort," are you talking about 18 CalFed developing additional Delta smelt critical habitat, 19 such that the impact of the barrier project would be 20 mitigated by that additional habitat creation? 21 MR. VANDENBERG: Ecosystem restoration is one component 22 of CalFed. There is also levee stability, water supply 23 reliability and water quality protection. Each of those 24 things have to be met before a project can -- 25 MR. NOMELLINI: You are talking about a whole range of 5801 01 actions that are not limited to just the critical habitat in 02 terms of water area less than ten feet deep; is that correct? 03 MR. VANDENBERG: That is correct. 04 MR. NOMELLINI: With regard to a conflict between Delta 05 smelt, for example, and fall-run San Joaquin salmon, if such 06 a conflict arose, would the Delta smelt, being an endangered 07 species, have its needs meet in priority to the fall-run 08 San Joaquin salmon? 09 MR. VANDENBERG: Originally, the fall-San Joaquin 10 salmon and the Delta smelt -- there wasn't a conflict 11 between those two species. It is projects that are causing 12 a conflict. If that conflict pits one species against 13 another, the ultimate decision of that, on which species 14 would get the priority, is not a decision that I would 15 make. 16 MR. NOMELLINI: Do you know who makes that decision? 17 MR. VANDENBERG: It would be individuals from the 18 agencies that have jurisdiction over those species. 19 MR. NOMELLINI: Is there any priority accorded to Delta 20 smelt because they are endangered, if you know? 21 MR. BRANDT: Vague. As compared to what? Are we still 22 talking San Joaquin salmon? 23 MR. NOMELLINI: Fall-run San Joaquin salmon, which are 24 not listed. 25 MR. VANDENBERG: Delta smelt are listed. And if 5802 01 there's a requirement that, because of some action that is 02 needed to protect that, action must be taken if that project 03 it is going to gone forward. Unfortunately, because a 04 species is not listed, it is not afforded that great of 05 amount of protection. 06 MR. NOMELLINI: Do you agree that before the San 07 Joaquin River Agreement can go forward that there would have 08 to be a formal consultation on Delta smelt? 09 MR. VANDENBERG: Yes, there would. To an extent that 10 we have -- if a permanent barrier is going to be used as 11 part of that, we have currently an opinion with a temporary 12 barrier. That is in place. The temporary barrier can be 13 installed. 14 MR. NOMELLINI: The temporary barrier can be 15 installed. Can a flow regime as incorporated in the San 16 Joaquin River Agreement be utilized in connection with the 17 temporary barrier without formal consultation on Delta 18 smelt? 19 MR. VANDENBERG: I would imagine that if a new action 20 is proposed, the effects or possible effects of any action, 21 if there's listed species involved, would require a 22 consultation. 23 MR. NOMELLINI: Believe it or not, we are getting down 24 to the last questions. 25 You spoke, in answer to questions of others, about 5803 01 entrainment of Delta smelt in Clifton Court Forebay and at 02 the pumping plant. 03 Do you recall that testimony? 04 MR. VANDENBERG: Yes, I do. 05 MR. NOMELLINI: How is the Delta smelt entrainment in 06 Clifton Court Forebay determined? 07 MR. VANDENBERG: When the gates are opened and the 08 water goes in and the fish go in with it, that is determined 09 as entrainment. Is that what -- 10 MR. NOMELLINI: You tell me what entrainment means. 11 MR. VANDENBERG: That is what I am saying entrainment 12 is. 13 MR. NOMELLINI: So that any fish, any Delta smelt, 14 entering into the Clifton Court Forebay is deemed entrained, 15 as you understand it? 16 MR. VANDENBERG: Yes. 17 MR. NOMELLINI: How do we determine how many are 18 entrained? 19 MR. VANDENBERG: There is, then, salvage at the pumping 20 plants, and they do random samples of that salvage and 21 through some mathematical calculation determine a take 22 number. 23 MR. NOMELLINI: Salvage at the pumps? What is salvage 24 in terms of Delta smelt at the various stages at the pumps? 25 Do you find fish? Dead fish? 5804 01 MR. VANDENBERG: Salvage of Delta smelt at the pumps -- 02 the Delta smelt do not handle well. They are very fragile 03 fish. So it's determined that any fish that enter or that 04 are entrained would be dead, would result in mortality. 05 MR. NOMELLINI: In order to count that or establish 06 the number is there a count of fish, Delta smelt fish? 07 MR. VANDENBERG: There is a sample taken and a count of 08 Delta smelt from that sample. 09 MR. NOMELLINI: Is that sample taken at the screens? 10 Or do you know? 11 MR. VANDENBERG: It's taken at the salvage facilities. 12 MR. NOMELLINI: With regard to eggs and larvae, how 13 are they measured? 14 MR. VANDENBERG: Anything under 20 millimeters is not 15 counted. So eggs and larvae are not counted. 16 MR. NOMELLINI: What happens when you get 20,000 mitten 17 crabs hanging on the salvage facility? Does that in any way 18 alter the count? 19 MR. VANDENBERG: The extent of my knowledge on the 20 mitten crab, which is very limited because it is a new 21 species that just recently became a concern, but at the 22 times when the mitten crab is at the export facilities and 23 causing a problem such as was the year this year, 24 specifically earlier October, the Delta smelt were in the 25 Bay, so there wasn't a conflict. 5805 01 MR. NOMELLINI: There wasn't a conflict? 02 MR. VANDENBERG: There wasn't a conflict between the 03 mitten crab and Delta smelt. 04 MR. NOMELLINI: You indicated in answers to questions 05 that September through June was a period of when Delta smelt 06 would be in the Delta for spawning; is that correct? 07 MR. VANDENBERG: Did you say September? 08 MR. NOMELLINI: September through June. 09 MR. VANDENBERG: I believe I said December through 10 June. 11 MR. NOMELLINI: You said something about in some cases 12 all the way to August. Do you recall that? 13 MR. VANDENBERG: In some cases. 14 MR. NOMELLINI: So, we could have Delta smelt in the 15 Delta almost anyplace during the period of December through 16 August; is that what you were testifying to? 17 MR. VANDENBERG: Yes. 18 MR. NOMELLINI: With regard to agricultural pumps 19 taking Delta smelt, could that be mitigated with a screen? 20 MR. VANDENBERG: It could be. 21 MR. NOMELLINI: Would you agree that some pumps pump 22 fish and others do not? 23 MR. VANDENBERG: It would depend on the distribution of 24 the species. 25 MR. NOMELLINI: Do you think it would also depend on 5806 01 the location of pump, type of pump and things of that type? 02 MR. VANDENBERG: Yes. 03 MR. NOMELLINI: So any type of screening program should 04 logically involve some type of testing to evaluate whether 05 or not a screen was of particular benefit. Would you agree 06 with that? 07 MR. VANDENBERG: Yes, I would. 08 MR. NOMELLINI: That is all I have. 09 C.O. CAFFREY: Thank you, Mr. Nomellini. 10 MR. NOMELLINI: That was for Cay Goude, the shortness 11 and crispness of that last question. 12 C.O. CAFFREY: Thank you, Mr. Nomellini. 13 All right. Let me see if the staff have any 14 questions. 15 Mr. Howard. 16 MR. HOWARD: No questions. 17 C.O. CAFFREY: No questions from the staff. 18 Anything from the Board Members? 19 Mr. Stubchaer. 20 ---oOo--- 21 CROSS-EXAMINATION OF DEPARTMENT OF THE INTERIOR 22 BY BOARD MEMBERS 23 C.O. STUBCHAER: I believe, Mr. Vandenberg, you were 24 asked a question by Mr. Sandino yesterday about the Delta 25 smelt meeting the criteria for delisting and some X number 5807 01 of years in the last five years or something like that; and 02 you said you weren't aware whether it was four years or 03 three years. 04 Have you had a chance to review that since yesterday? 05 MR. VANDENBERG: It appears that three years were met, 06 and then the next year the criteria was not met. 07 C.O. STUBCHAER: That is four years. What about the 08 fifth year? 09 MR. VANDENBERG: When the criteria is not met, it 10 starts over. It has to be five consecutive years. 11 C.O. STUBCHAER: In the fifth year that wasn't 12 included, did they start back again or did it miss the 13 criteria, if you know? 14 MR. VANDENBERG: If I understand. First there were 15 three years that met the criteria. The fourth year didn't 16 meet the criteria. The clock starts over. If this fourth 17 year -- well, the fourth year doesn't meet the criteria, so 18 the clock starts over. If the fifth meets the criteria, the 19 clock is started. 20 C.O. STUBCHAER: Do you have data for the fifth year 21 yet? 22 MR. VANDENBERG: No, I don't. 23 C.O. STUBCHAER: Regarding the barriers, the temporary 24 barriers versus the permanent barriers, I think you 25 testified that temporary barriers are not found to be 5808 01 nonjeopardy because they are temporary, and the permanent 02 barriers, because they are permanent, cause jeopardy. And 03 my question is: If the permanent barriers are controllable 04 and the operation can be dictated by the Fish and Wildlife 05 Service, why would there be a difference between the 06 jeopardy of the two types of barriers? 07 MR. VANDENBERG: The permanent barriers have other 08 components that lead toward that jeopardy threshold. The 09 temporary barriers do not. There is also increased pumping 10 that leads with that jeopardy opinion. It wasn't an 11 analysis strictly on permanent barriers versus temporary 12 barriers. It took the whole analysis of the ISDP program as 13 proposed. 14 C.O. STUBCHAER: You probably -- I think you've been 15 asked this question repeatedly. If you isolated all the 16 barriers separate from the pumping, why would there be a 17 difference between the two types of barriers? 18 MR. VANDENBERG: I couldn't isolate the barriers unless 19 a program was presented to me by some agency that has those 20 in isolation. Then I could, I would review that in 21 isolation. I haven't done that. It hasn't been presented 22 to me. 23 C.O. STUBCHAER: Regarding the export pumping 24 restrictions under the reasonable and prudent alternative, 25 are those different than the present standard under the 5809 01 Accord, 1995 Accord? 02 MR. VANDENBERG: No, they are not. 03 C.O. STUBCHAER: If a yellow light is triggered, are 04 they different? 05 MR. VANDENBERG: No, they are not. When the yellow 06 light is triggered? 07 C.O. STUBCHAER: Yes. 08 MR. VANDENBERG: Then there are a series of things that 09 are looked at. Pumping may be reduced as one option. 10 C.O. STUBCHAER: I thought it did read -- it does read 11 that the plan shall center about reducing export pumping. 12 But then it also says seek to have no net loss of water 13 supply impact, with the 1995 Accord. 14 Have you done any analysis of whether it is possible to 15 have no net loss of water supply under this reasonable and 16 prudent alternative? 17 MR. VANDENBERG: No, I haven't. 18 C.O. STUBCHAER: I guess that is all my questions, 19 Mr. Chairman. 20 C.O. CAFFREY: Thank you, Mr. Stubchaer. 21 Do you have any redirect? 22 MR. BRANDT: I believe I have one. Let me just check. 23 If I may have just a moment. 24 C.O. CAFFREY: Sure. 25 (Discussion held off the record.) 5810 01 C.O. CAFFREY: Back on the record. 02 MR. BRANDT: I just have one question, Mr. Chairman. 03 ---oOo--- 04 REDIRECT EXAMINATION OF DEPARTMENT OF THE INTERIOR 05 BY MR. BRANDT 06 MR. BRANDT: Mr. Vandenberg, do you have a correction 07 to your written testimony that you would like to describe? 08 MR. VANDENBERG: Yes, I do. 09 MR. BRANDT: Just go ahead. 10 MR. VANDENBERG: Within my testimony there may be some 11 confusion as to the completeness of the quotes that were 12 contained on the third page. Some of the quotation marks 13 are missing, and there is indentation there that shouldn't 14 be there. Instead of relying on these quotes as they are 15 presented in this written testimony, I would refer anyone to 16 the water quality element as contained in the water quality 17 plan submitted by the Department. 18 C.O. CAFFREY: All right, sir. Does that complete your 19 redirect? 20 MR. BRANDT: Yes. 21 C.O. CAFFREY: Does any party wish to recross the 22 witness based on that redirect? 23 Mr. Nomellini. 24 MR. NOMELLINI: One hour. 25 All I want to know is where on this page were you 5811 01 talking about the incorrect quote? 02 MR. VANDENBERG: Paragraphs 12, 13 and 14. 03 MR. NOMELLINI: Thank you. 04 C.O. CAFFREY: Anybody else? 05 Anything from the staff? 06 Board Members? 07 Do you wish -- you have another witness. 08 MR. BRANDT: I have. 09 C.O. CAFFREY: Thank you, Mr. Brandt. 10 Let me also say to Mr. Herrick. Mr. Herrick, you have, 11 I believe, three exhibits, 52, 53 and 56, which you offered 12 as exhibits, cross-examination exhibits, if I have that 13 correct. I want to let you know that we will take those up 14 for introduction into the record when we get to the end of 15 this case in chief, Mr. Herrick. 16 Thank you, sir. 17 Mr. Vandenberg, you are dismissed unless somebody else 18 calls you rightfully at some other time in the proceeding. 19 Thank you very much, sir, appreciate your being here. 20 MR. VANDENBERG: Thank you. 21 C.O. CAFFREY: I believe we have reached that point 22 where Ms. Zolezzi or Ms. Harrigfeld or both -- 23 Are your witnesses here? 24 Off record while you're finding them. 25 (Discussion off record.) 5812 01 C.O. CAFFREY: On the record. We are back on the 02 record. 03 The order of the cross-examination, I believe Mr. 04 Stubchaer and I discussed this and may not have announced 05 it, and it may be a change. My memory doesn't serve me. 06 We have Minasian, O'Laughlin, Birmingham, and Mr. 07 Porgans has added his name this afternoon. So, that will be 08 the order, and we will start with Mr. Minasian. 09 MR. MINASIAN: We have no further questions for these 10 witnesses. 11 C.O. CAFFREY: No further questions. 12 Thank you, sir. 13 Mr. O'Laughlin. 14 MR. O'LAUGHLIN: No questions, Mr. Chairman. 15 Thank you. 16 C.O. CAFFREY: All right, sir. 17 Mr. Birmingham. 18 MR. BIRMINGHAM: I have some questions. 19 C.O. CAFFREY: Welcome back, Mr. Birmingham. 20 MR. BIRMINGHAM: Thank you. 21 C.O. CAFFREY: I might add, welcome back to the 22 witnesses, Mr. Grober and Mr. Schnagl. 23 MR. SCHNAGL: Thank you. 24 MR. GROBER: Thank you. 25 ---oOo--- 5813 01 CROSS-EXAMINATION OF STOCKTON EAST WATER DISTRICT 02 BY WESTLANDS WATER DISTRICT 03 BY MR. BIRMINGHAM 04 MR. BIRMINGHAM: Mr. Grober, Mr. Schnagl, my name is 05 Tom Birmingham, I am an attorney that represents Westlands 06 Water District in connection with these proceedings. I just 07 have a few questions for you. 08 During her examination of you, Ms. Harrigfeld asked you 09 questions, I believe they were asked of you, Mr. Grober, 10 relating to construction of the San Luis unit. 11 Do you recall those questions? 12 MR. GROBER: I believe I recall a series of questions 13 in general, yes. 14 MR. BIRMINGHAM: I have just distributed and handed to 15 the staff what has been marked for identification as 16 Westlands Exhibit 89. 17 Mr. Grober, I am going to ask you to take a moment to 18 examine the Westlands Exhibit 89 for identification. And 19 after you had an opportunity to review it, would you please 20 let me know. 21 MR. GROBER: Take a look. 22 Okay. 23 MR. BIRMINGHAM: Do you recognize the document or the 24 two pages that have been marked for identification as 25 Westlands Exhibit 89? 5814 01 MR. GROBER: Yes. 02 MR. BIRMINGHAM: Would you please tell us what is 03 depicted or what composes Westlands Exhibit 89 for 04 identification. 05 MR. GROBER: This is a depiction of the Lower San 06 Joaquin River Basin from Mendota Pool to Vernalis, and it 07 shows the Grassland Watershed and an area, I think it is, 08 the drainage project area. 09 MR. BIRMINGHAM: Is it correct that Exhibit 89 is the 10 cover page and Figure 1 from a report entitled, 11 "Agricultural Drainage Contribution to Water Quality in the 12 Grasslands Watershed of Western Merced County, California, 13 October 1995 - September 1997 (Water Years 1996 and '97)"? 14 MR. GROBER: Yes. It is a draft document dated August 15 1998. 16 MR. BIRMINGHAM: Were you involved in the preparation 17 of that document? 18 MR. GROBER: Yes. 19 MR. BIRMINGHAM: In fact, you're the author of that 20 document; is that correct? 21 MR. GROBER: One of several authors. 22 MR. BIRMINGHAM: Is it correct that Figure 1, which is 23 the second page of Westlands Exhibit 89, shows the 24 90,000-acre area which is comprised of the Grasslands 25 Drainage Bypass Project? 5815 01 MR. GROBER: I'm sorry, it's showing 90,000 acres which 02 is an area commonly referred to as the Grassland Bypass 03 Project. 04 MR. BIRMINGHAM: Isn't it correct that the area that is 05 within the project area, depicted on Westlands Exhibit 89 06 for identification, is an area that received CVP project 07 water from the Delta-Mendota Canal prior to the construction 08 of the San Luis unit? 09 MR. GROBER: Yes. 10 MR. BIRMINGHAM: The areas that are shown in the 11 project area, depicted on Westlands Exhibit 89, are areas 12 that still receive water from the Delta-Mendota Canal? 13 MR. GROBER: Yes. 14 MR. BIRMINGHAM: Excuse me, Ms. Harrigfeld, do you have 15 a copy of the overhead of Stockton East Water District 16 Exhibit 32? 17 MS. HARRIGFELD: Yes. 18 MR. BIRMINGHAM: Both Ms. Harrigfeld and Ms. Cahill, on 19 behalf of City of Stockton, asked you a series of questions 20 about the policy that is repeated in Stockton East Water 21 District Exhibit 32. 22 Do you recall those questions, Mr. Grober? 23 MR. GROBER: Somewhat, in general. 24 MR. BIRMINGHAM: It states that: 25 Because water in California is a scarce 5816 01 resource, the Technical Committee believes 02 that dedicating water supplies for canal 03 capacity to dilute man-induced pollutants 04 should be considered only after all 05 reasonable source control and treatment 06 methods have been exhausted. (Reading.) 07 Is that correct? 08 MR. GROBER: That is what the exhibit shows. 09 MR. BIRMINGHAM: Are you familiar with the proposal 10 that has been made by some Delta area water users that the 11 Delta-Mendota Canal be used to recirculate water to dilute 12 salinity in the San Joaquin River? 13 MR. GROBER: Yes, I am aware that there have been 14 certain proposals. 15 MR. BIRMINGHAM: Isn't it correct that the 16 recirculation of water through the Delta-Mendota Canal to 17 dilute salinity in the San Joaquin River would constitute 18 the dedication of canal capacity to dilute man-induced 19 pollutants? 20 MR. GROBER: I'm sorry, could you restate the 21 question. 22 MR. BIRMINGHAM: Yes. 23 Isn't it correct that the recirculation of water 24 through the Delta-Mendota Canal to dilute salinity in the 25 San Joaquin River would constitute the dedication of canal 5817 01 capacity to dilute man-induced pollutants? 02 MR. GROBER: I am not sure. I think that is more a 03 legal question and not something that I could answer. 04 MR. BIRMINGHAM: Isn't it correct that the 05 Delta-Mendota Canal is a canal? 06 MR. GROBER: Yes. 07 MR. BIRMINGHAM: If you are using the capacity of that 08 canal to convey water from the Tracy pumping plant so that 09 the water can be released into the San Joaquin River for any 10 purpose, you are using or dedicating a portion of the canal 11 capacity for that purpose? 12 MR. GROBER: That seems correct, yes. 13 MR. BIRMINGHAM: If the purpose for which you are 14 dedicating the canal capacity is to dilute salts or 15 salinity, which are discharged into the San Joaquin River as 16 a result of agricultural production, wouldn't that be the 17 use of the canal to dilute man-induced pollutants? 18 MR. GROBER: Then you would be using the canal for the 19 purpose used here, as you are stating the question, yeah. 20 That seems to be circular. 21 MR. BIRMINGHAM: So, going back to my original 22 question. If the Delta-Mendota Canal is used to recirculate 23 water for the purpose of reducing salinity in the San 24 Joaquin River, that constitutes the dedication of canal 25 capacity to dilute man-induced pollutants; isn't that 5818 01 correct? 02 MR. GROBER: I guess -- you are combining the 03 statements. You are drawing the conclusion, that you are 04 putting the three together, and I am not sure that I would 05 be comfortable combining all three of those statements and 06 drawing that conclusion. 07 MR. BIRMINGHAM: Let me ask this question about the 08 policy that is stated or copied in Stockton East Water 09 District 32: 10 Is this a policy of the Regional Board; is that 11 correct? 12 MR. GROBER: I am sorry, what is your question? 13 MR. BIRMINGHAM: Is this a policy statement of the 14 Regional Water Quality Control Board? 15 MR. GROBER: No. This is a State Board document. 16 MR. BIRMINGHAM: Does this document, Stockton East 17 Water District Exhibit 32, prioritize the dedication of 18 water supplies or canal capacity to dilute man-induced 19 pollutants? 20 MR. GROBER: I am sorry, I missed the question. 21 MR. BIRMINGHAM: Let me see if I can lay a foundation 22 for the question. 23 It is your understanding the Stockton East Water 24 District and City of Stockton objected to the use of water 25 from New Melones Reservoir to dilute salinity in the San 5819 01 Joaquin River; is that correct? 02 MR. GROBER: I am aware there is concern, yes. 03 MR. BIRMINGHAM: As an alternative to the use of water 04 from New Melones Reservoir as a means of diluting the 05 salinity in the San Joaquin River, certain parties have 06 suggested that the Delta-Mendota Canal be used to 07 recirculate water from the Delta so that it can be released 08 back into the San Joaquin River to accomplish the same 09 purpose; isn't that correct? 10 MR. GROBER: That's correct. 11 MR. BIRMINGHAM: The policy that is stated on Stockton 12 East Water District Exhibit 32 appears to state that 13 dedicating water supplies or canal capacity to dilute 14 man-induced pollutants should be considered only after all 15 reasonable source control and treatment methods have been 16 exhausted; isn't that correct? 17 MR. GROBER: That is what the statement says, yes. 18 MR. BIRMINGHAM: This statement does not prioritize 19 which -- let me restate the question. 20 The policy applies to both the dedication of water 21 supplies and canal capacity; isn't that correct? 22 MR. GROBER: The statement says, yes, for dedicating 23 water supplies or Canal capacity. 24 MR. BIRMINGHAM: It doesn't prioritize the use of water 25 supplies versus the dedication of canal capacity in order to 5820 01 dilute man-induced pollutants? 02 MR. GROBER: In this statement? 03 MR. BIRMINGHAM: In this statement. 04 MR. GROBER: It doesn't seem to be a priority. 05 MR. BIRMINGHAM: Is it your understanding that New 06 Melones Reservoir was authorized by Congress and permitted 07 by the State Water Resources Control Board in part to 08 address water quality in the Lower San Joaquin River? 09 MR. GROBER: I know in general there were some quality 10 considerations. 11 MR. BIRMINGHAM: During your testimony here previously 12 you indicated that you are familiar with Decision 1422 of 13 the State Water Resources Control Board? 14 MR. GROBER: Generally, yes. 15 MR. BIRMINGHAM: From your general knowledge, isn't it 16 correct that when the State Water Resources Control Board 17 permitted New Melones Reservoir, it directed that the Bureau 18 of Reclamation release conserved water to meet water quality 19 standards measured at Vernalis? 20 MR. GROBER: Yes. 21 MR. BIRMINGHAM: And you would agree, wouldn't you, Mr. 22 Grober, that if a reservoir were authorized by Congress and 23 permitted by the Water Board for the purpose of meeting 24 water quality objectives, it would be more reasonable to 25 continue use water from that facility for that purpose 5821 01 rather than rededicating canal capacity in order to 02 accomplish the purpose? 03 MR. GROBER: I don't think I am in a position to 04 determine what is more reasonable. 05 MR. BIRMINGHAM: Very early on in her examination of 06 you Ms. Harrigfeld asked you a question concerning the 07 origin of the salinity problem within the San Joaquin River 08 Basin. In fact, she asked you when did the salinity problem 09 begin in the basin. 10 Do you recall her asking you that question? 11 MR. GROBER: Generally, yes. 12 MR. BIRMINGHAM: I believe you responded by saying that 13 the question was an open-ended question and that you could 14 look at it from a geological perspective in terms of the 15 naturally occurring rocks and soils in the basin, but that 16 with the advent of irrigated agriculture salinity problems 17 were exacerbated; is that correct? 18 MR. GROBER: Yeah, that is a correct characterization. 19 MR. BIRMINGHAM: Then subsequently Ms. Harrigfeld asked 20 you questions concerning the San Joaquin Valley Drainage 21 Report, sometimes referred to as the Rainbow Report. 22 Do you recall those questions? 23 MR. GROBER: Yes. 24 MR. BIRMINGHAM: Is it correct that the San Joaquin 25 Valley Drainage Report was a report intended to identify 5822 01 alternatives to dealing with the drainage problem on the 02 west side of the San Joaquin Valley? 03 MR. GROBER: Yes, as far as I know, uh-huh. 04 MR. BIRMINGHAM: And in response to a question that was 05 asked of you by Ms. Harrigfeld concerning alternatives that 06 the Federal government proposed to deal with salinity 07 problems, you indicated that such alternatives included 08 source control, recycling, land retirement and other 09 methods. 10 Do you recall that? 11 MR. GROBER: Yeah. I can't remember specifically what 12 I said, but that is some of the recommendations. 13 MR. BIRMINGHAM: Specifically, I think what you stated 14 was: for example, what is commonly known as the Rainbow 15 Report, things such as source control, recycling, land 16 retirement or other methods were identified by you. 17 MR. GROBER: Well, I have to see the transcript, but I 18 will take your word for it. 19 MR. BIRMINGHAM: I would like to show you a copy of a 20 transcript. Here referring to the transcript of proceedings 21 dated October 15, 1998, and I am referring specifically, Mr. 22 Grober, to Page 4789, and I will refer you to Lines 18 23 through 20. And after you had an opportunity to review 24 that, would you please let me know. 25 MR. GROBER: Yes. 5823 01 MR. BIRMINGHAM: Isn't it correct that in response to 02 Ms. Harrigfeld's question you said: 03 For example, what is commonly known as the 04 Rainbow Report, things such as source 05 control, recycling, land retirement or other 06 methods. (Reading.) 07 MR. GROBER: Yes. 08 MR. BIRMINGHAM: I would like to focus on land 09 retirement, if I can. 10 Land retirement doesn't solve a drainage problem, does 11 it? 12 MR. GROBER: Well, that's a big question. 13 MR. BIRMINGHAM: If you have land which is in 14 agricultural production with a drainage problem, does taking 15 the land out of production solve that land drainage 16 problem? 17 MR. GROBER: Not necessarily. 18 MR. BIRMINGHAM: Mr. Schnagl, Ms. Cahill asked you 19 questions concerning the sources of salinity in the San 20 Joaquin River. 21 Do you recall being asked those questions? 22 MR. SCHNAGL: Not specifically. What was that question 23 again? 24 MR. BIRMINGHAM: Ms. Cahill asked you the following 25 series of questions, or at least the transcript indicates 5824 01 that she asked them. 02 I apologize; actually, this was a question that was 03 asked of Mr. Grober. 04 Ms. Cahill: If there were -- and also in 05 response to a question you indicated that the 06 increased salt loads in the San Joaquin River 07 came from a number of factors. But you 08 didn't specify what those factors were. 09 Could you tell us what factors had caused the 10 increase in the San Joaquin River? 11 Mr. Grober: Increased salt loads, I believe, 12 in general are from drainage from ag lands, 13 the surface and subsurface return flows, the 14 wetland discharges, groundwater accretions. 15 Ms. Cahill: Can you think of any others? 16 Mr. Grober: Also naturally occurring loading 17 is highly sensitive to all sorts of salt 18 which can dilute sources. 19 Ms. Cahill: Of those that you named, which 20 are the most significant? 21 Mr. Grober: Significant in terms of single -- 22 Ms. Cahill: Making the greatest contribution. 23 Mr. Grober: Highest contributions would be 24 from tile drainage, generally; also 25 groundwater accretions are not small. They 5825 01 are closely following, based on time periods 02 that I have looked at. (Reading.) 03 Do you recall being asked those questions and providing 04 those answers? 05 MR. GROBER: Yes. 06 MR. BIRMINGHAM: Do you have any data, Mr. Grober, 07 concerning the volume of groundwater accretions that 08 contribute salinity to the San Joaquin River? 09 MR. GROBER: I assume you don't mean with me. Do you 10 mean just general ideas about or do I have access to such 11 data or have I seen such data? 12 MR. BIRMINGHAM: Sitting here today, can you quantify 13 the volume of water on an average basis, an annual average 14 basis -- let me restate the question. 15 Sitting here today, can you quantify on an average 16 annual basis the contribution of groundwater accretions to 17 salinity in the San Joaquin River? 18 MR. GROBER: I would only want to do it very roughly. 19 All such numbers would depend somewhat on the content and 20 also depend on the type of year you are talking about, 21 unless you're talking about mean annual basis, what type of 22 mean accretion. So I would qualify the answer that it is 23 based on information I have seen, analysis performed by 24 USGS, also modeling studies, also by difference. It is 25 difficult to quantify groundwater absolutely, measuring that 5826 01 as a specific source. 02 With all of those qualifications I still would be 03 hesitant to venture a guess, to just give some sort of a 04 number. 05 MR. BIRMINGHAM: If it would be a guess, it would be 06 speculation, that is fine if you are unable to. My 07 preference would be that you not guess. 08 Would your answer be a guess? 09 MR. GROBER: It would be a guess. 10 MR. BIRMINGHAM: Mr. Herrick asked a question of you, I 11 believe, let me make sure I have it right this time, Mr. 12 Schnagl, concerning the selenium problems that existed at 13 Kesterson Reservoir. 14 Do you recall that question? 15 MR. SCHNAGL: I'd appreciate it if you could reread 16 it. 17 MR. BIRMINGHAM: I am looking again at transcript of 18 proceedings dated October 15, 1998, Page 4893, and Mr. 19 Herrick asked the following series of questions: 20 Mr. Herrick: I understand that -- excuse me 21 for going back in time too far. I am 22 understanding that the selenium problem was 23 most markedly evidenced by the Kesterson, I 24 will say, issue, generally speaking. I 25 think it is completely speaking. Generally 5827 01 speaking, the discharges into Kesterson of 02 high selenium waters has been halted; is that 03 correct? 04 Mr. Schnagl: Yes. 05 Mr. Herrick: And whether that same selenium 06 or the selenium in the valley that is going 07 into the San Joaquin River or not, it is 08 going to other places than Kesterson? 09 Mr. Schnagl: Correct. (Reading.) 10 Do you recall being asked those questions and 11 providing those answers? 12 MR. SCHNAGL: Yes, I do. 13 MR. BIRMINGHAM: Isn't it correct that the drain water 14 that was discharged into Kesterson Reservoir was discharged 15 from Westlands Water District? 16 MR. SCHNAGL: Yes, that is my understanding. 17 MR. BIRMINGHAM: Isn't it correct that, as a result of 18 an order by this Board and the United States Department of 19 Interior, that those discharges stopped in 1986? 20 MR. SCHNAGL: That is my understanding. 21 MR. BIRMINGHAM: Since 1986, Westlands Water District 22 has not discharged subsurface agricultural drainage into any 23 surface water? 24 MR. SCHNAGL: I feel uncomfortable answering that 25 question because I haven't evaluated that. 5828 01 MR. BIRMINGHAM: Do you know the answer to that 02 question, Mr. Grober? 03 MR. GROBER: I was just thinking the same thing. I 04 thought you'd come to me next. I really haven't evaluated 05 that, either. 06 MR. BIRMINGHAM: Mr. Schnagl, when you said, in 07 response to Mr. Herrick's question whether that same 08 selenium or selenium in the valley that is going into the 09 San Joaquin River or not, it's going to other places than 10 Kesterson, and you answered correct. You don't know the 11 answer to the question that was asked of you by Mr. Herrick; 12 isn't that correct? 13 MR. SCHNAGL: I understood that question to ask whether 14 it is going to Kesterson. And there is no drainage going to 15 Kesterson at this time, or as far as I know since the mid 16 '80s. 17 MR. BIRMINGHAM: The selenium that previously was 18 discharged at Kesterson came from Westlands? 19 MR. SCHNAGL: Yes. 20 MR. BIRMINGHAM: You don't know what is happening to 21 the selenium that is contained in the Westlands soils that 22 are being irrigated presently; isn't that correct? 23 MR. SCHNAGL: I haven't followed what the status of the 24 selenium in the Westlands system is. 25 MR. BIRMINGHAM: You don't know anything about the 5829 01 discharges, if there are any, by Westlands or its water 02 users into surface waters of the state? 03 MR. SCHNAGL: No. I haven't been involved with 04 evaluating Westlands drainage process programs. 05 MR. BIRMINGHAM: Let me ask you a hypothetical 06 question, Mr. Schnagl. 07 I am going to ask you to assume that Westlands does not 08 discharge subsurface drainage outside of its boundaries. 09 Isn't it correct that in those circumstances the selenium 10 which previously was discharged to Kesterson would be 11 remaining in Westlands? 12 MR. SCHNAGL: I expect that would be where it is, yes. 13 C.O. CAFFREY: Excuse me, Mr. Birmingham, it's getting 14 close to the time we need to take a break. Would this be 15 convenient for you? 16 MR. BIRMINGHAM: That would be fine. 17 C.O. CAFFREY: All right, sir. We'll take a break for 18 12 minutes. 19 Thank you. 20 (Break taken.) 21 C.O. CAFFREY: We are back on the record, and we will 22 resume with Mr. Birmingham's cross-examination. 23 MR. BIRMINGHAM: Mr. Schnagl, immediately before the 24 recess I asked you a question about what would happen to 25 selenium in the soils of Westlands Water District if 5830 01 Westlands was not discharging subsurface agricultural 02 drainage into surface waters of the state. 03 Do you recall that question? 04 MR. SCHNAGL: Yes, I do. 05 MR. BIRMINGHAM: I want to make sure we understand the 06 process. The application of imported surface waters leaches 07 selenium from the soils, assuming that the selenium is 08 soluble; is that correct? 09 MR. SCHNAGL: That's correct. 10 MR. BIRMINGHAM: If there is no discharge of subsurface 11 drainage, the leached selenium would become part of the 12 groundwater; is that correct? 13 MR. SCHNAGL: That's correct. 14 MR. BIRMINGHAM: If there were movement of the 15 groundwater, the selenium would move with that groundwater? 16 MR. SCHNAGL: Yes, it moves with the groundwater. 17 MR. BIRMINGHAM: May I have a moment. 18 C.O. CAFFREY: We will go off the record for a moment. 19 (Discussion held off record.) 20 C.O. CAFFREY: Back on the record. 21 MR. BIRMINGHAM: Mr. Grober, you were asked a series of 22 questions by Mr. Herrick concerning the affect of 23 recirculation of drainage water on farm systems. 24 Do you recall those questions. 25 MR. GROBER: Yes, in general. 5831 01 MR. BIRMINGHAM: Let me take a moment, if I can, and 02 read from the transcript. And, again, this is transcript of 03 the proceedings of October 15, 1998, and I am referring to 04 Page 4915 where it is reported that Mr. Herrick asked the 05 following question: 06 Mr. Herrick: After they've done, I will say, 07 one irrigation use of this water, it creates 08 a drainage water. Then they bring that water 09 back and reuse it, whether it is blended or 10 not. When they reuse it, that process would 11 further concentrate the salt, would it not? 12 Mr. Grober: Generally, yes. 13 Mr. Herrick: If they had blended it, then 14 they actually added more salt before the 15 reconcentration process, correct? 16 Mr. Grober: Yes. 17 Mr. Herrick: Now, I'll say, second drainage 18 is released to the river, it would be a 19 further concentration of the salt as opposed 20 to if the initial drainage was released to 21 the river; is that correct? 22 Mr. Grober: Would you restate the question. 23 Mr. Herrick: The drainage of going into the 24 river after that second use would have a 25 higher concentration of salt than the first 5832 01 use, correct? 02 Mr. Grober: Yes, in general. It also depends 03 on how you blended it. (Reading.) 04 Do you recall being asked those questions and providing 05 those answers? 06 MR. GROBER: Yes. 07 MR. BIRMINGHAM: I would like to go back to the 08 proposal to recirculate water through the Delta-Mendota 09 Canal. 10 Isn't it correct that a recirculation project of the 11 type proposed by water users in the Delta eventually would 12 lead to the greater concentrations of salinity in the San 13 Joaquin River? 14 MR. GROBER: That is really too big a question to 15 answer so simplistically. 16 MR. BIRMINGHAM: Isn't it correct that the salinity in 17 the San Joaquin River results from salts being discharged 18 from both subsurface drainage and tailwater into the San 19 Joaquin River? 20 MR. GROBER: And other sources. 21 MR. BIRMINGHAM: If that water were pumped from the 22 Delta via the Tracy pumping plant and applied to lands on 23 the west side of the San Joaquin River, additional salt 24 would be leached from those soils and then discharged back 25 into the San Joaquin River; isn't that correct? 5833 01 MR. GROBER: I am not sure that it would be. You would 02 have to define additional salts. In addition to what? 03 MR. BIRMINGHAM: Additional salts -- let me ask the 04 question. 05 Isn't it correct that when the water is applied, the 06 imported water is applied to land on the west side of the 07 San Joaquin Valley, salts are leached out of those lands and 08 then discharged with subsurface drainage water or tailwater 09 into the San Joaquin River? 10 MR. GROBER: That is a process that occurs, yes. 11 MR. BIRMINGHAM: And over time if you continue to 12 recirculate water from the San Joaquin River, would it not 13 lead to greater concentrations of salinity in the San 14 Joaquin River? 15 MR. GROBER: Once again, not necessarily, because that 16 is a bigger, more complicated question. 17 MR. BIRMINGHAM: Mr. Grober, you were asked questions 18 by Mr. Herrick concerning South Delta Water Agency Exhibit 19 54, which I am handing to you now. 20 Do you recall being asked by Mr. Herrick about South 21 Delta Water Agency Exhibit 54 for identification? 22 MR. GROBER: Yes. 23 MR. BIRMINGHAM: South Delta Water Agency Exhibit 54 is 24 a memo which you drafted to the staff of the United States 25 Bureau of Reclamation; is that correct? 5834 01 MR. GROBER: Yes. 02 MR. BIRMINGHAM: In the first paragraph of South Delta 03 Water Agency Exhibit 54 it makes references to modeling 04 runs; is that correct? 05 MR. GROBER: Yes. 06 MR. BIRMINGHAM: And the modeling runs were based upon 07 certain assumptions; is that correct? 08 MR. GROBER: Yes. 09 MR. BIRMINGHAM: From whom did you obtain the 10 assumptions that were used for purposes of the modeling run 11 or runs, excuse me, on which South Delta Water Agency 12 Exhibit 54 for identification were based? 13 MR. GROBER: This was a collaborative effort between 14 myself and the others mentioned in this memo. 15 MR. BIRMINGHAM: Isn't it correct that among the 16 assumptions that were included in the model runs on which 17 South Delta Water Agency Exhibit 54 for identification were 18 based was the discharge of 55,000 acre-feet of water from 19 agricultural water users to wetlands in the grassland basin? 20 MR. GROBER: I don't recall the specific assumptions, 21 but perhaps you could clarify. 22 MR. BIRMINGHAM: At one time, isn't it correct, that 23 water from agricultural water users in the Grasslands Basin 24 was used by wildlife refugees and wetland areas within the 25 Grasslands Basin? 5835 01 MR. GROBER: Yes. 02 MR. BIRMINGHAM: And as result of the enactment of the 03 Central Valley Project Improvement Act, the water which was 04 previously supplied by agricultural water users to the 05 wetland areas in the Grasslands Basin was replaced with 06 water delivered directly to the wetland areas by the United 07 States Bureau of Reclamation? 08 MR. GROBER: Yes. I am not completely familiar. It is 09 a complicated hydrology, but some of that shifting. 10 MR. BIRMINGHAM: In the analysis that was included 11 where the analysis on which South Delta Water Agency Exhibit 12 54 was based, included the delivery of water from 13 agricultural water users to the grasslands wetlands areas? 14 MR. GROBER: Yes, as I recall. 15 MR. BIRMINGHAM: So, isn't it correct, Mr. Grober, that 16 as a result of the delivery of water to the wetland areas by 17 the Bureau of Reclamation, the analysis that is contained in 18 South Delta Water Agency Exhibit 54 for identification is 19 obsolete? 20 MR. GROBER: I don't know that that is obsolete in what 21 sense. 22 MR. BIRMINGHAM: It is no longer applicable in the 23 sense that the wetland areas no longer receive water from 24 agricultural water users; instead they receive water from 25 the Bureau of Reclamation? 5836 01 MR. GROBER: If that is the case, I still don't make 02 the connection why that would make this analysis obsolete. 03 MR. BIRMINGHAM: Isn't it correct that the water 04 delivered to the wetlands areas by the agricultural water 05 users had higher concentrations of salinity than the water 06 delivered to the wetland areas by the Bureau of 07 Reclamation? 08 MR. GROBER: I think that is correct, in a general 09 sense. 10 MR. BIRMINGHAM: Do you know? 11 MR. GROBER: I don't know that absolutely, no. 12 MR. BIRMINGHAM: I have no further questions. 13 C.O. CAFFREY: Thank you, Mr. Birmingham. 14 Mr. Nomellini: 15 ---oOo--- 16 CROSS-EXAMINATION OF STOCKTON EAST WATER DISTRICT 17 BY CENTRAL DELTA PARTIES 18 BY MR. NOMELLINI 19 MR. NOMELLINI: Mr. Chairman, Members of the Board, 20 Dante John Nomellini on behalf of the Central Delta 21 parties. 22 I think I would like to start with Mr. Grober. 23 Mr. Grober, I believe in answers to previous questions 24 you indicated you had some background in geology; is that 25 correct? 5837 01 MR. GROBER: Yes. 02 MR. NOMELLINI: And you briefly described, I think, the 03 differences between the lands on the west side of the San 04 Joaquin Valley and east side. But I am not sure I 05 understood it fully, and I would like to pursue that a 06 little bit. 07 Is it true that the residual salts in the soils and 08 rocks of the lands on the west side of the San Joaquin 09 Valley are higher in concentrations than in those soils on 10 the east side? 11 MR. GROBER: Higher in concentrations of? 12 MR. NOMELLINI: Salts. 13 MR. GROBER: Of salt? Of soluble salts. 14 MR. NOMELLINI: And is there a geological explanation 15 why that occurs? 16 MR. GROBER: Generally, in the east side you have 17 granitic rocks and in the west side you have rocks more of 18 origin, sedimentary rocks. 19 MR. NOMELLINI: So, the west side of the valley, 20 generally, was formed by an uplifting of the seabed; is that 21 what occurred there? 22 MR. GROBER: To some extent. Though I have a 23 background in geology, I have not studied the geology of the 24 area specifically, so I wouldn't want to venture into a lot 25 of detail. 5838 01 MR. NOMELLINI: You are clear, then, in your opinion 02 that in terms of soluble salts, the soils on the west side 03 of the valley have greater concentrations than the soils on 04 the east side? 05 MR. GROBER: Yes. 06 MR. NOMELLINI: With regard to mobilization of such 07 salts, recognizing that they are soluble, how would they be 08 mobilized or leached from the soils? 09 MR. GROBER: Generally, through processes with water. 10 MR. NOMELLINI: Rain would be one way and another would 11 be application of irrigation water? 12 MR. GROBER: Yes. 13 MR. NOMELLINI: If we had soils on the west side of the 14 valley that were higher in concentrations of selenium than 15 adjacent soils, would the soils with higher concentrations 16 of selenium necessarily contribute more selenium if 17 irrigated than the soils which have the lesser 18 concentrations of selenium? 19 MR. BIRMINGHAM: Objection. Ambiguous, contribute to 20 what? 21 C.O. CAFFREY: Could you try it again, Mr. Nomellini. 22 MR. NOMELLINI: All right. 23 Does the concentration of selenium in a particular soil 24 mean that there will be more selenium produced from that 25 soil with the application of irrigation water? 5839 01 MR. GROBER: I am also not an expert on a lot of soil 02 chemistry, so I don't know if I want to testify to that. 03 MR. NOMELLINI: You don't know -- if we looked at 04 soils today and we found that some were higher in selenium 05 than others, you don't know whether or not they would 06 present a greater problem than the other soils with regard 07 to releases of selenium due to irrigation; is that correct? 08 MR. GROBER: I am sorry, maybe for clarification, if 09 what you are asking, if you have soils that have high 10 concentrations of selenium would tend to leach with 11 application of rainfall or any water would they leach more 12 selenium in soils without selenium, I would say yes. 13 MR. NOMELLINI: That is exactly my question. 14 There are maps that show selenium concentrations in 15 soils in the valley. Certain areas appear to have greater 16 concentrations than others. 17 Have you seen such maps? 18 MR. GROBER: Yes. 19 MR. NOMELLINI: My question is a follow-up, and again 20 to get the best answer I can, is that is it your opinion 21 that those with the higher concentrations are more likely to 22 produce soluble selenium loadings than the lower 23 concentrations? 24 MR. GROBER: Again, it might be a subtle difference, 25 but I think you restated what I had said in a somewhat 5840 01 different way, and I wouldn't feel comfortable answering 02 because I am not an expert in those areas. 03 MR. NOMELLINI: If we looked at those maps that showed 04 the present levels of selenium in the soil, can you conclude 05 by looking at those maps that the soils with the highest 06 concentration of selenium would be the greatest problem, 07 given the same amount of irrigation water applied? 08 MR. GROBER: I guess I will dilute my answer that, in 09 general, I would associate high concentrations in soil with 10 higher concentrations in any leached water. 11 MR. NOMELLINI: Can you identify any factors that you 12 would want to look at in order to verify that general 13 conclusion? 14 MR. GROBER: No. 15 MR. NOMELLINI: Would you agree that there is perched 16 groundwater on the west side of the San Joaquin Valley? 17 MR. GROBER: I understand that to be the case, yes. 18 MR. NOMELLINI: Would you agree that the general 19 movement of the perched groundwater on the west side of the 20 San Joaquin Valley is from the southwest to the northeast? 21 MR. GROBER: This is not something that I've looked 22 at in detail. I didn't come here prepared to testify to 23 that. 24 MR. NOMELLINI: You would agree that perched 25 groundwater would be more downgradient? 5841 01 MR. GROBER: Yes, I would, yes. 02 C.O. STUBCHAER: Surface or subsurface gradient? 03 MR. NOMELLINI: I would say both for the west side of 04 San Joaquin Valley. But let's segregate it. 05 For the west side of the San Joaquin Valley -- 06 MR. GROBER: I assumed when you were asking that you 07 were talking about groundwater elevation. 08 MR. NOMELLINI: Stockton East Water District Number 09 29, by any chance, do you have the overhead for that, 10 Karna? 11 Up on the screen is Stockton East Water District 12 Exhibit 29, Figure VIII-3. 13 Are you familiar with what has been referred to from 14 time to time as a groundwater ridge that exists in the west 15 side of the San Joaquin Valley, roughly between Little 16 Panoche Creek and Panoche Creek? 17 MR. GROBER: Fairly generally, yeah. 18 MR. NOMELLINI: What is your general understanding of 19 that groundwater ridge? 20 MR. GROBER: Pretty much that there is some, perhaps, 21 change in gradient there. I couldn't give you any 22 specifics. 23 MR. NOMELLINI: Do you know, generally, where it is 24 located? 25 MR. GROBER: I would not even want to venture a guess 5842 01 on a map. 02 MR. NOMELLINI: With regard to perched groundwater 03 beneath the Westlands Water District, in answers to 04 questions by Mr. Birmingham, you confirmed that selenium 05 leached from the soils in the Westlands Water District would 06 end up in the groundwater. 07 I think, Mr. Schnagl, you testified to that. Do you 08 recall that? 09 MR. SCHNAGL: That is correct. 10 MR. NOMELLINI: Do you know whether or not any of the 11 groundwater from the Westlands Water District area ends up 12 in the San Joaquin River? 13 MR. SCHNAGL: Directly or generally? No, I don't. 14 MR. NOMELLINI: Do you know whether or not the 15 groundwater beneath Westlands Water District moves from 16 southwest to northeast? 17 MR. SCHNAGL: I have seen maps showing that, yes. 18 MR. NOMELLINI: Do you believe that is correct? 19 MR. SCHNAGL: I did not evaluate the validity of the 20 map. I just recall seeing that in a report. 21 MR. NOMELLINI: So, groundwater from Westlands Water 22 District would move, if it did move, from southwest to 23 northeast, would move into the Grasslands Drainage Project 24 area, would it not? 25 MR. BIRMINGHAM: Object to the questions on the grounds 5843 01 it lacks foundation. Westlands Water District is an area of 02 600,000 acres. It is the size of Rhode Island. I think Mr. 03 Nomellini needs to be a little more specific with respect to 04 which part -- 05 MR. NOMELLINI: Rhode Island? 06 MR. BIRMINGHAM: -- of the Westlands Water District he 07 is referring to. 08 C.O. CAFFREY: In the spirit of good will, Mr. 09 Nomellini, would you be willing to be a little more 10 specific. 11 MR. NOMELLINI: I was wondering what the relevance of 12 the size of Rhode Island was. I thought he was going to say 13 it is almost as big as the Delta. I will rephrase. 14 C.O. CAFFREY: If you could be a little more specific. 15 Thank you. 16 MR. NOMELLINI: Speaking with regard to the most 17 contaminated area within Westlands Water District, do you 18 know what part of Westlands is the most contaminated? 19 MR. SCHNAGL: No, I do not. 20 MR. NOMELLINI: Are you familiar with the Panoche Fan? 21 MR. SCHNAGL: Generally, yes. 22 MR. NOMELLINI: Let's take the northwest portion of the 23 Westlands Water District. Do you know roughly where that 24 is? 25 MR. SCHNAGL: Yes, I do. 5844 01 MR. NOMELLINI: If the groundwater beneath the 02 northwest portion of the Westlands Water District moved from 03 southwest to northeast, it would flow into the Grasslands 04 Drainage Project areas, would it not? 05 MR. SCHNAGL: Yes. 06 MR. NOMELLINI: And you indicated in previous testimony 07 that if the selenium ended up in the groundwater it would 08 move with the groundwater, would it not? 09 MR. SCHNAGL: To some degree, yes. 10 MR. NOMELLINI: How would it not? 11 MR. SCHNAGL: It moves with the groundwater. I am just 12 not sure the extent to which you are referring, to all of it 13 moving with groundwater or what. It is a soluble material 14 and it moves with groundwater. 15 MR. NOMELLINI: If it was dissolved into the 16 groundwater, would it not be true that all the dissolved 17 portion of the selenium would move with the groundwater? 18 MR. SCHNAGL: That is where I'm hesitant, because that 19 is an issue where there may be some chemistry involved, and 20 I'm not a chemist to the extent that I can say whether all 21 the selenium would move or some would precipitate out or 22 some other activity would prevent all that selenium from 23 moving. 24 MR. NOMELLINI: With regard to the Grasslands drainage 25 project areas, are you familiar with that area? 5845 01 MR. SCHNAGL: Yes, I am. 02 MR. NOMELLINI: Is it your understanding that none of 03 the groundwater, perched groundwater, underneath the 04 Grasslands drainage project area moves outside the 05 boundaries of that area? 06 MR. SCHNAGL: I don't believe I have seen anything that 07 evaluates that. 08 MR. NOMELLINI: Are you familiar with the practices 09 being utilized within the Grasslands Drainage Project area 10 to reduce the discharge of selenium? 11 MR. SCHNAGL: Yes. I have received reports from the 12 grassland area farmers describing their activities to reduce 13 selenium discharges. 14 MR. NOMELLINI: With regard to those practices, is it 15 your understanding that the tailwater, as well as the tile 16 drainage water, is recirculated into the irrigation water 17 within the Grasslands drainage project area? 18 MR. SCHNAGL: Yes, to some extent, yes. 19 MR. NOMELLINI: Would that practice, in your opinion, 20 require a greater amount of leaching water in the applied 21 water? 22 MR. SCHNAGL: Generally, the higher the concentration 23 of salt in the irrigation water the higher the leaching 24 fraction you need to maintain a balance in soil profile. 25 MR. NOMELLINI: Do you know whether or not a balance is 5846 01 being currently maintained? 02 MR. SCHNAGL: No, I do not. 03 MR. NOMELLINI: Do you have any opinion as to how long 04 the practices within the grasslands drainage project area of 05 utilizing the tailwater and the tile drainage water mixed 06 with irrigation water could be sustained? 07 MR. SCHNAGL: I do not. 08 MR. NOMELLINI: Do you think it's indefinite? 09 MR. SCHNAGL: I don't know that answer. 10 MR. NOMELLINI: What would you have to know in order to 11 make a decision or judgment of that type? 12 MR. SCHNAGL: That would take a pretty thorough 13 evaluation of the salt balance in the area and tolerance of 14 the crops being grown and that sort of thing. 15 MR. NOMELLINI: For the years since 1995, do you know 16 whether or not the salinity in the San Joaquin River, just 17 upstream of the Merced, has improved in terms of 18 concentration? 19 MR. SCHNAGL: We have that information back at the 20 office, but I can't answer it today. 21 MR. NOMELLINI: Do you know whether or not the 22 Grassland Bypass Project has resulted in improvement of the 23 salinity in the San Joaquin River upstream of the Merced? 24 MR. SCHNAGL: I am not aware of that evaluation being 25 done at this point. 5847 01 MR. NOMELLINI: There were a number of questions about 02 Stockton East Water District Exhibit 32; that is, the flow 03 dilution to canal capacity policy. 04 Do you have that? 05 I understood the testimony to be that this is not a 06 policy -- I am referring to this exhibit, Stockton East 07 Water District 32. That this is not a policy of the 08 Regional Board, to your knowledge? 09 MR. SCHNAGL: That is, as I understand it, that is a 10 quote from the State Board staff report. 11 MR. NOMELLINI: Not even a policy of the State Board? 12 MR. SCHNAGL: I don't know where the quote came from, 13 whether that is a quote of another document or from another 14 document and presents a policy from somewhere else. I am 15 not aware of it. But the report that this statement is from 16 is a staff report, to my knowledge. 17 MR. NOMELLINI: Do you agree that there are beneficial 18 uses of the San Joaquin River upstream of the Merced? 19 MR. SCHNAGL: Yes, there are. 20 MR. NOMELLINI: And could you list what you consider to 21 be beneficial uses of the San Joaquin River upstream of the 22 Merced. 23 MR. SCHNAGL: Those beneficial uses are listed in the 24 Regional Board Basin Plan, and I would not want to guess 25 what they are at this time. 5848 01 MR. NOMELLINI: Would agriculture use be one of them? 02 You don't remember? 03 MR. SCHNAGL: I'd really rather not speculate. 04 MR. NOMELLINI: What Regional Board publication are you 05 citing there? 06 MR. SCHNAGL: That is the Central Valley Regional Water 07 Quality Control Board Water Quality Control Plan for the San 08 Joaquin River Basin. 09 MR. NOMELLINI: Do you believe that objectives should 10 be set for the San Joaquin River upstream of the Merced for 11 salinity to protect the designated beneficial uses? 12 MR. SCHNAGL: The Regional Board staff is working on a 13 project to prepare a Basin Plan amendment for the Board's 14 consideration next year, and one of the things we are 15 looking at is setting water quality objectives for points 16 along the river from Mendota Dam down to Vernalis. That is 17 an issue that we are investigating at this point. 18 MR. NOMELLINI: So, you, as staff, have not yet put 19 forth a recommendation with regard to whether or not those 20 objectives should include salinity; is that correct? 21 MR. SCHNAGL: Our recommendations are -- I would expect 22 will include objectives for salinity, but I don't know where 23 the compliance points would be set, what the objectives 24 would be for various stretches of the river. 25 MR. NOMELLINI: Do you think that the salinity of the 5849 01 San Joaquin River upstream of the Merced needs to be reduced 02 in concentration in order to protect beneficial uses? 03 MR. SCHNAGL: That is under evaluation at this point. 04 MR. NOMELLINI: If we continue with the present state 05 of operations on the west side of the San Joaquin Valley, 06 including the Grasslands drainage project area, do you have 07 any estimate as to how many years it could take to improve 08 the quality of the San Joaquin River upstream of Merced to 09 an average salinity concentration of 500 parts per million 10 TDS? 11 MR. SCHNAGL: No, I do not. 12 MR. NOMELLINI: Do you believe that any solution to the 13 San Joaquin River, I am going to call it a water quality 14 problem, can be put into effect in the next ten years 15 without dilution? 16 MR. SCHNAGL: Well, we are conducting an analysis of 17 various options. We haven't completed that analysis, and I 18 don't think I can answer that question at this point. 19 MR. NOMELLINI: You don't have a gut feeling? 20 MR. SCHNAGL: I will pass on gut feelings at this 21 point. 22 MR. NOMELLINI: How about Grober? 23 MR. GROBER: There can be small, incremental 24 improvements made without dilution, such as through real 25 time management. 5850 01 MR. NOMELLINI: I think you testified that you agreed 02 with this statement as a matter of principle; is that 03 correct? 04 MR. GROBER: I don't recall. 05 MR. NOMELLINI: Do you agree with this as a matter of 06 principle, that is Stockton East Water District 32? 07 MR. GROBER: Is it relevant if I agree with it? 08 C.O. CAFFREY: You know, he is here without counsel. 09 Maybe he can be his own lawyer. 10 Are you objecting to that question, Mr. Grober? 11 MR. NOMELLINI: Is the discharge of agricultural 12 drainage water the discharge of a pollutant? Either one of 13 you or both. 14 MR. SCHNAGL: It is considered discharge of a waste 15 that the Regional Board can regulate, yes. 16 MR. NOMELLINI: Is it a discharge of a pollutant? 17 MR. SCHNAGL: It depends on what pollutant. It depends 18 on the concentration of what you are talking about. 19 MR. NOMELLINI: So that the discharge of some 20 agricultural drainage would not constitute discharge of a 21 pollutant; is that correct? 22 MR. SCHNAGL: Agricultural drainage contains various 23 materials, some, but it doesn't contain everything. 24 "Pollutant" is an awfully broad term. 25 MR. NOMELLINI: Do you know the meaning of pollutant as 5851 01 used in this quotation up on the screen? 02 C.O. STUBCHAER: Mr. Nomellini, are you talking about 03 the ag drainage from the Central Delta or Westlands? 04 MR. NOMELLINI: I am going to talk about wetlands 05 drainage. The Central Delta drainage I know is not a 06 pollutant. 07 C.O. CAFFREY: However, you are not allowed to 08 testify. We will give that appropriate weight. 09 MR. NOMELLINI: I was seeking a general answer to a 10 general question. What would constitute a pollutant in 11 terms of this policy, if they know. 12 MR. SCHNAGL: I did not write the statement. I am not 13 sure how the authors use the term "pollutant." 14 MR. NOMELLINI: Are there accretions of groundwater 15 from the west side of the San Joaquin Valley to the San 16 Joaquin River? 17 MR. GROBER: Yes, at times in the certain locations. 18 MR. NOMELLINI: At what times would there be accretions 19 of groundwater on the west side of the San Joaquin Valley to 20 the San Joaquin River? 21 MR. GROBER: Like so many others, that becomes a 22 complicated question. That depends on what time of year and 23 the location and depends on what other factors such as how 24 much groundwater is being pumped adjacent to the river. 25 MR. NOMELLINI: In general, would there be greater 5852 01 accretions following wetter periods? 02 MR. GROBER: I think you can make that general 03 statement, and that you have to have recharge of 04 groundwater, increasing groundwater elevations and you might 05 have greater recharge to the river. 06 MR. NOMELLINI: Calling your attention to Stockton East 07 Water District Exhibit 7 and then 7-A, let's start with 7. 08 MS. HARRIGFELD: This is 7. 09 MR. NOMELLINI: I don't remember which of the two of 10 you prepared this exhibit. Would you refresh my 11 recollection. 12 MR. GROBER: I did. 13 MR. NOMELLINI: This being Stockton East Water District 14 7, was a preliminary version of what was ultimately 7-A, 15 Stockton East Water District 7-A. Is that correct? 16 MR. GROBER: Ultimately. This is still a draft. 17 MR. NOMELLINI: 7-A then -- I believe that the portion 18 that is represented by the 9 percent which is the number one 19 category, SJRA upstream, that changed from 20 from Exhibit 7 20 to Exhibit 7-A; is that correct? 21 MR. GROBER: That's correct. 22 MR. NOMELLINI: What was the basis of the change? 23 MR. GROBER: The basis for the change is that this, if 24 you look at the upper graphic, this is showing salt load 25 contributed from six zones from 1977 through to 1997. There 5853 01 is not a lot of data for the '77 through the '86, '85 period 02 for some of the locations, specifically the San Joaquin 03 River upstream. So, that preliminary graphic there were 04 estimates made that were later updated with this graphic 05 here that I feel are more accurate. 06 MR. NOMELLINI: So, it is an average of all that data 07 including the portion that was estimated; is that correct? 08 MR. GROBER: Yes. 09 MR. NOMELLINI: That doesn't represent what the sharing 10 would be in the last three years, for example? 11 MR. GROBER: No. But that can be seen on the upper 12 graphic. That is on a year-to-year basis. 13 MR. NOMELLINI: I believe you indicated that some of 14 this was based on a calculation, and then one portion here, 15 the Number 3, which is NWS -- 16 MR. GROBER: Yes. 17 MR. NOMELLINI: -- was just a residual? 18 MR. GROBER: The northwest side, that is calculated by 19 difference. 20 MR. NOMELLINI: That is what is left? 21 MR. GROBER: Yes. 22 MR. NOMELLINI: This is just a crude approximation, I 23 gather? 24 MR. GROBER: Yes. You could go into some detail about 25 that, but taking the geographic area of the northwest side, 5854 01 defined here as the west side of the San Joaquin River 02 downstream of the Grassland Watershed and upstream of 03 Vernalis. This is showing what is the difference between 04 the loading at Vernalis and loading from the other zones: 05 the east side tributaries, the Grassland Watershed and San 06 Joaquin River upstream. 07 MR. NOMELLINI: In answer to a question: Does taking 08 land out of production solve that land's drainage problem? 09 Your answer, Mr. Grober, was not necessarily. 10 Do you recall that? 11 MR. GROBER: Yes. 12 MR. NOMELLINI: Now, could you explain what factors 13 would result in there being no improvement in the drainage 14 problem by reason of taking land out of production on the 15 west side of the San Joaquin Valley. 16 MR. GROBER: For example, a similar number of acres 17 might continue to be irrigated with the same quantity of 18 water, just shifting the burden. You still have impacts 19 from groundwater. The tile-drained area might have 20 accretions from the tile drains. 21 MR. NOMELLINI: So that there would have to be a net 22 reduction in irrigated land in order for there to be a 23 positive improvement from the land retirement. Is that what 24 you are saying? 25 MR. GROBER: That was one of the components I just 5855 01 suggested. 02 MR. NOMELLINI: You would agree, would you not, that if 03 we assume we would take the land out of production, it would 04 not be irrigated with groundwater? 05 MR. GROBER: I am sorry, not irrigated with 06 groundwater? 07 MR. NOMELLINI: If we took a particular piece of land 08 out of production, and maybe the term would be if we stopped 09 all irrigation on a particular piece of land, would that be 10 clearer for you? 11 MR. GROBER: Clearer in what sense? 12 MR. NOMELLINI: If we stopped irrigation to a 13 particular piece of land, and we also had to stop irrigation 14 on that, that results in a net total reduction in irrigated 15 lands on the west side of the valley, should we expect a 16 reduction in the drainage problem? 17 MR. GROBER: Perhaps. But I guess -- yeah, you would 18 have to more tightly frame the question in terms of the 19 drainage problem and other qualifications in terms of what 20 land is being taken out. It is not a simple question. 21 MR. NOMELLINI: I know that. Let's take each one of 22 those factors. 23 You would agree that when we apply water to the land, 24 we are adding salts that could end up in the drainage from 25 that piece of land, do you not? 5856 01 MR. GROBER: Yes. 02 MR. NOMELLINI: That is true with regard to whether or 03 not the water comes from the Delta-Mendota Canal, the San 04 Luis Canal or groundwater? 05 MR. GROBER: I guess I'd qualify that. It depends on 06 the source. You don't necessarily -- have certainly amount 07 of salt in the groundwater and very much in the quality of 08 the water. 09 MR. NOMELLINI: I am not going to quantity now. Would 10 you agree all those sources for the west side of the San 11 Joaquin Valley have some salt, would you not? 12 MR. GROBER: Yes. 13 MR. NOMELLINI: And in the irrigation process we add 14 salt to the land or to the groundwater beneath the land or 15 to the water discharged from the land, do we not? 16 MR. GROBER: Well, you are adding salt. It depends, 17 again, where the water's coming from, if it's groundwater 18 being pumped at locations. And I am not sure if that is a 19 true statement. 20 MR. NOMELLINI: We would be adding salts to the land? 21 MR. GROBER: Well, it depends on how you are defining 22 your area: geographically, aerially, vertically. I don't 23 mean to be cagey, but these are somewhat difficult, complex 24 questions. 25 MR. NOMELLINI: So, you would have to look at the 5857 01 particular piece of land, what the drainage was immediately 02 prior to the cessation of application of irrigation water 03 and then conclude whether or not stopping the irrigation of 04 that piece of land resulted in a benefit or detriment with 05 regard to drainage from that land. Is that what you are 06 saying? 07 MR. GROBER: Yeah. You would have to look at each 08 specific case, and also look at the bigger picture, 09 depending on how you'd define where your loads are coming 10 from and what problem you are trying to solve. 11 MR. NOMELLINI: Define for me the case where the 12 cessation of the application of irrigation water would not 13 reduce the salt being added to the land, the groundwater or 14 the discharge of water from that piece of land, if there is 15 such. 16 MR. GROBER: I guess you still haven't really framed 17 the question specifically enough for me to be able to 18 answer. 19 MR. NOMELLINI: What solutions are being evaluated for 20 addressing the drainage problem on the east side of the San 21 Joaquin Valley? 22 MR. GROBER: By whom? 23 MR. NOMELLINI: By you. 24 MR. GROBER: I think, as we have said, we are currently 25 embarked on a assimilative Basin Plan process. We are 5858 01 working to consider various alternatives. 02 MR. NOMELLINI: Didn't you in answer to previous 03 questions list a number of factors, such as -- one of them 04 was land retirement? 05 MR. GROBER: I believe that question might have been in 06 regard to what was being considered in the Rainbow Report. 07 MR. NOMELLINI: With regard to the Rainbow Report, 08 then, there were a number of factors: Source control, land 09 retirement and recycling. Right? Or do you recall? 10 MR. GROBER: I believe I listed that. 11 MR. NOMELLINI: Any others? 12 MR. GROBER: Source control, did you say? 13 MR. NOMELLINI: Source control, land retirement and 14 recycling. 15 MR. GROBER: Groundwater management. There are 16 others. That is the report that could be looked at. 17 MR. NOMELLINI: Are you looking at all of those with 18 regard to the actions of the staff of the Regional Board? 19 MR. GROBER: We are going to consider all options that 20 we can identify. 21 MR. NOMELLINI: You have not yet identified particular 22 options you are going to look at? 23 MR. GROBER: Not formally, no. We have no documents 24 that we have released. 25 MR. NOMELLINI: Let me check my notes, and then I will 5859 01 be out of here. 02 Have evaporation ponds been looked at as a measure for 03 reduction of discharge of salts into the San Joaquin River? 04 MR. GROBER: By whom? 05 MR. NOMELLINI: By you. 06 MR. SCHNAGL: Let me clarify. What we are looking at 07 is a number of technical options that dischargers may have 08 to address issues related to subsurface drainage disposal. 09 And beyond that, we have made no judgment at this time. But 10 the use of evaporation ponds is one option that is being 11 used in the south valley area for management of the 12 drainage. 13 MR. NOMELLINI: Do you have any opinion as to whether 14 or not that is effective? 15 MR. SCHNAGL: It is in use right now. 16 MR. NOMELLINI: Do you have any opinion as to whether 17 or not it is effective, the use of evaporation ponds for 18 holding salt? 19 MR. SCHNAGL: Could you explain what you mean by 20 "effective"? 21 MR. NOMELLINI: In terms of keeping the salt out of the 22 San Joaquin River? 23 MR. SCHNAGL: Evaporation ponds are being used in an 24 area that doesn't drain to the San Joaquin River on a 25 regular basis. It is the Tulare Lake Basin area. 5860 01 MR. NOMELLINI: In the Westlands Water District area? 02 MR. SCHNAGL: I can't answer that. 03 MR. NOMELLINI: That is all I have. 04 Thank you very much. 05 C.O. CAFFREY: Thank you, Mr. Nomellini. 06 It is ten to four. 07 Mr. Porgans, how much do you have? 08 MR. PORGANS: Probably 30 or 40 minutes. 09 C.O. CAFFREY: We will do that in the morning. We will 10 take you up first thing in the morning at 9:00. You won't 11 have to wait. Appreciate your patience. 12 Thank you for being here. 13 We will be back here at 9:00 a.m. 14 Thank you. 15 (Hearing adjourned at 3:55 p.m.) 16 ---oOo--- 17 18 19 20 21 22 23 24 25 5861 01 REPORTER'S CERTIFICATE 02 03 04 STATE OF CALIFORNIA ) 04 ) ss. 05 COUNTY OF SACRAMENTO ) 05 06 06 07 08 I, ESTHER F. WIATRE, certify that I was the 09 official Court Reporter for the proceedings named herein, 10 and that as such reporter, I reported in verbatim shorthand 11 writing those proceedings; 12 That I thereafter caused my shorthand writing to be 13 reduced to typewriting, and the pages numbered 5700 through 14 5860 herein constitute a complete, true and correct record 15 of the proceedings. 16 17 IN WITNESS WHEREOF, I have subscribed this certificate 18 at Sacramento, California, on this 1st day of November 1998. 19 20 21 22 22 23 ______________________________ 23 ESTHER F. WIATRE 24 CSR NO. 1564 24 25