STATE WATER RESOURCES CONTROL BOARD PUBLIC HEARING 1998 BAY-DELTA WATER RIGHTS HEARING HELD AT 901 P STREET SACRAMENTO, CALIFORNIA TUESDAY, NOVEMBER 17, 1998 9:00 A.M. Reported by: MARY GALLAGHER, CSR #10749 CAPITOL REPORTERS (916) 923-5447 1 APPEARANCES ---oOo--- 2 3 BOARD MEMBERS: 4 JOHN CAFFREY, CO-HEARING OFFICER JAMES STUBCHAER, CO-HEARING OFFICER 5 MARC DEL PIERO MARY JANE FORSTER 6 JOHN W. BROWN 7 STAFF MEMBERS: 8 THOMAS HOWARD - Supervising Engineer 9 VICTORIA A. WHITNEY - Senior Engineer 10 COUNSEL: 11 WILLIAM R. ATTWATER - Chief Counsel 12 WALTER PETTIT - Executive Director BARBARA LEIDIGH - Senior Staff Counsel 13 14 ---oOo--- 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 6582 1 REPRESENTATIVES 2 PRINCETON CODORA GLENN IRRIGATION DISTRICT, et al. 3 FROST, DRUP & ATLAS 4 134 West Sycamore STreet Willows, California 95988 5 BY: J. MARK ATLAS, ESQ. 6 JOINT WATER DISTRICTS: 7 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 8 Oroville, California 95965 BY: WILLIAM H. BABER, III, ESQ. 9 CALIFORNIA SPORTFISHING PROTECTION ALLIANCE: 10 ROBERT J. BAIOCCHI 11 P.O. Box 357 Quincy, California 95971 12 BELLA VISTA WATER DISTRICT: 13 BRUCE L. BELTON, ESQ. 14 2525 Park Marina Drive, Suite 102 Redding, California 96001 15 WESTLANDS WATER DISTRICT: 16 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 17 400 Capitol Mall, 27th Floor Sacramento, California 95814 18 BY: THOMAS W. BIRMINGHAM, ESQ. 19 THE BAY INSTITUTE OF SAN FRANCISCO: 20 GRAY BOBKER 55 Shaver Street, Suite 330 21 San Rafael, California 94901 22 CITY OF ANTIOCH, et al.: 23 FREDERICK BOLD, JR., ESQ. 1201 California Street, Suite 1303 24 San Francisco, California 94109 25 CAPITOL REPORTERS (916) 923-5447 6583 1 REPRESENTATIVES 2 LEAGUE OF WOMEN VOTERS: 3 ROBERTA BORGONOVO 4 2480 Union Street San Francisco, California 94123 5 UNITED STATES DEPARTMENT OF THE INTERIOR: 6 OFFICE OF THE SOLICITOR 7 2800 Cottage Way, Roon E1712 Sacramento, California 95825 8 BY: ALF W. BRANDT, ESQ. 9 CALIFORNIA URBAN WATER AGENCIES: 10 BYRON M. BUCK 455 Capitol Mall, Suite 705 11 Sacramento, California 95814 12 RANCHO MURIETA COMMUNITY SERVICES DISTRICT: 13 MCDONOUGH, HOLLAND & ALLEN 555 Capitol Mall, 9th Floor 14 Sacramento, California 95814 BY: VIRGINIA A. CAHILL, ESQ. 15 CALIFORNIA DEPARTMENT OF FISH AND GAME: 16 OFFICE OF THE ATTORNEY GENERAL 17 1300 I Street, Suite 1101 Sacramento, California 95814 18 BY: MATTHEW CAMPBELL, ESQ. 19 NATURAL RESOURCES DEFENSE COUNCIL: 20 HAMILTON CANDEE, ESQ. 71 Stevenson Street 21 San Francisco, California 94105 22 ARVIN-EDISON WATER STORAGE DISTRICT, et al.: 23 DOOLEY HERR & WILLIAMS 3500 West Mineral King Avenue, Suite C 24 Visalia, California 93191 BY: DANIEL M. DOOLEY, ESQ. 25 CAPITOL REPORTERS (916) 923-5447 6584 1 REPRESENTATIVES 2 SACRAMENTO MUNICIPAL UTILITY DISTRICT: 3 LESLIE A. DUNSWORTH, ESQ. 4 6201 S Street Sacramento, California 95817 5 SOUTH SAN JOAQUIN IRRIGATION DISTRICT, et al.: 6 BRAY, GEIGER, RUDQUIST & NUSS 7 311 East Main Street, 4th Floor Stockton, California 95202 8 BY: STEVEN P. EMRICK, ESQ. 9 EAST BAY MUNICIPAL UTILITY DISTRICT: 10 EBMUD OFFICE OF GENERAL COUNSEL 375 Eleventh Street 11 Oakland, California 94623 BY: FRED ETHERIDGE, ESQ. 12 GOLDEN GATE AUDUBON SOCIETY: 13 ARTHUR FEINSTEIN 14 2530 San Pablo Avenue, Suite G Berkeley, California 94702 15 CONAWAY CONSERVANCY GROUP: 16 UREMOVIC & FELGER 17 P.O. Box 5654 Fresno, California 93755 18 BY: WARREN P. FELGER, ESQ. 19 THOMES CREEK WATER ASSOCIATION: 20 THOMES CREEK WATERSHED ASSOCIATION P.O. Box 2365 21 Flournoy, California 96029 BY: LOIS FLYNNE 22 COURT APPOINTED REPS OF WESTLANDS WD AREA 1, et al.: 23 LAW OFFICES OF SMILAND & KHACHIGIAN 24 601 West Fifth Street, Seventh Floor Los Angeles, California 90075 25 BY: CHRISTOPHER G. FOSTER, ESQ. CAPITOL REPORTERS (916) 923-5447 6585 1 REPRESENTATIVES 2 CITY AND COUNTY OF SAN FRANCISCO: 3 OFFICE OF THE CITY ATTORNEY 4 1390 Market Street, Sixth Floor San Francisco, California 94102 5 BY: DONN W. FURMAN, ESQ. 6 CAMP FAR WEST IRRIGATION DISTRICT, et al.: 7 DANIEL F. GALLERY, ESQ. 926 J Street, Suite 505 8 Sacramento, California 95814 9 BOSTON RANCH COMPANY, et al.: 10 J.B. BOSWELL COMPANY 101 West Walnut Street 11 Pasadena, California 91103 BY: EDWARD G. GIERMANN 12 SAN JOAQUIN RIVER GROUP AUTHORITY, et al.: 13 GRIFFIN, MASUDA & GODWIN 14 517 East Olive Street Turlock, California 95381 15 BY: ARTHUR F. GODWIN, ESQ. 16 NORTHERN CALIFORNIA WATER ASSOCIATION: 17 RICHARD GOLB 455 Capitol Mall, Suite 335 18 Sacramento, California 95814 19 PLACER COUNTY WATER AGENCY, et al.: 20 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 400 Capitol Mall, 27th Floor 21 Sacramento, California 95814 BY: JANET GOLDSMITH, ESQ. 22 ENVIRONMENTAL DEFENSE FUND: 23 THOMAS J. GRAFF, ESQ. 24 5655 College Avenue, Suite 304 Oakland, California 94618 25 CAPITOL REPORTERS (916) 923-5447 6586 1 REPRESENTATIVES 2 CALAVERAS COUNTY WATER DISTRICT: 3 SIMON GRANVILLE 4 P.O. Box 846 San Andreas, California 95249 5 CHOWCHILLA WATER DISTRICT, et al.: 6 GREEN, GREEN & RIGBY 7 P.O. Box 1019 Madera, California 93639 8 BY: DENSLOW GREEN, ESQ. 9 CALIFORNIA FARM BUREAU FEDERATION: 10 DAVID J. GUY, ESQ. 2300 River Plaza Drive 11 Sacramento, California 95833 12 SANTA CLARA VALLEY WATER DISTRICT: 13 MORRISON & FORESTER 755 Page Mill Road 14 Palo Alto, California 94303 BY: KEVIN T. HAROFF, ESQ. 15 CITY OF SHASTA LAKE: 16 ALAN N. HARVEY 17 P.O. Box 777 Shasta Lake, California 96019 18 COUNTY OF STANISLAUS: 19 MICHAEL G. HEATON, ESQ. 20 926 J Street Sacramento, California 95814 21 GORRILL LAND COMPANY: 22 GORRILL LAND COMPANY 23 P.O. Box 427 Durham, California 95938 24 BY: DON HEFFREN 25 CAPITOL REPORTERS (916) 923-5447 6587 1 REPRESENTATIVES 2 SOUTH DELTA WATER AGENCY: 3 JOHN HERRICK, ESQ. 4 3031 West March Lane, Suite 332 East Stockton, California 95267 5 COUNTY OF GLENN: 6 NORMAN Y. HERRING 7 525 West Sycamore Street Willows, California 95988 8 REGIONAL COUNCIL OF RURAL COUNTIES: 9 MICHAEL B. JACKSON 10 1020 Twelfth Street, Suite 400 Sacramento, California 95814 11 DEER CREEK WATERSHED CONSERVANCY: 12 JULIE KELLY 13 P.O. Box 307 Vina, California 96092 14 DELTA TRIBUTARY AGENCIES COMMITTEE: 15 MODESTO IRRIGATION DISTRICT 16 P.O. Box 4060 Modesto, California 95352 17 BY: BILL KETSCHER 18 SAVE THE SAN FRANCISCO BAY ASSOCIATION: 19 SAVE THE BAY 1736 Franklin Street 20 Oakland, California 94612 BY: CYNTHIA L. KOEHLER, ESQ. 21 BATTLE CREEK WATERSHED LANDOWNERS: 22 BATTLE CREEK WATERSHED CONSERVANCY 23 P.O. Box 606 Manton, California 96059 24 25 CAPITOL REPORTERS (916) 923-5447 6588 1 REPRESENTATIVES 2 BUTTE SINK WATERFOWL ASSOCIATION, et al.: 3 MARTHA H. LENNIHAN, ESQ. 4 455 Capitol Mall, Suite 300 Sacramento, California 95814 5 CITY OF YUBA CITY: 6 WILLIAM P. LEWIS 7 1201 Civic Center Drive Yuba City, California 95993 8 BROWNS VALLEY IRRIGTAION DISTRICT, et al.: 9 BARTKIEWICZ, KRONICK & SHANAHAN 10 1011 22nd Street, Suite 100 Sacramento, California 95816 11 BY: ALAN B. LILLY, ESQ. 12 CONTRA COSTA WATER DISTRICT: 13 BOLD, POLISNER, MADDOW, NELSON & JUDSON 500 Ygnacio Valley Road, Suite 325 14 Walnut Creek, California 94596 BY: ROBERT B. MADDOW, ESQ. 15 GRASSLAND WATER DISTRICT: 16 DON MARCIOCHI 17 22759 South Mercey Springs Road Los Banos, California 93635 18 SAN LUIS CANAL COMPANY: 19 FLANAGAN, MASON, ROBBINS & GNASS 20 3351 North M Street, Suite 100 Merced, California 95344 21 BY: MIICHAEL L. MASON, ESQ. 22 STONY CREEK BUSINESS AND LAND OWNERS COALITION: 23 R.W. MCCOMAS 4150 County Road K 24 Orland, California 95963 25 CAPITOL REPORTERS (916) 923-5447 6589 1 REPRESENTATIVES 2 TRI-DAM POWER AUTHORITY: 3 TUOLUMNE UTILITIES DISTRICT 4 P.O. Box 3728 Sonora, California 95730 5 BY: TIM MCCULLOUGH 6 DELANO-EARLIMART IRRIGATION DISTRICT, et al.: 7 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 8 Oroville, California 95965 BY: JEFFREY A. MEITH, ESQ. 9 HUMANE FARMING ASSOCIATION: 10 BRADLEY S. MILLER. 11 1550 California Street, Suite 6 San Francisco, California 94109 12 CORDUA IRRIGATION DISTRICT, et al.: 13 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 14 P.O. Box 1679 Oroville, California 95965 15 BY: PAUL R. MINASIAN, ESQ. 16 EL DORADO COUNTY WATER AGENCY: 17 DE CUIR & SOMACH 400 Capitol Mall, Suite 1900 18 Sacramento, California 95814 BY: DONALD B. MOONEY, ESQ. 19 GLENN COUNTY FARM BUREAU: 20 STEVE MORA 21 501 Walker Street Orland, California 95963 22 MODESTO IRRIGATION DISTRICT: 23 JOEL MOSKOWITZ 24 P.O. Box 4060 Modesto, California 95352 25 CAPITOL REPORTERS (916) 923-5447 6590 1 REPRESENTATIVES 2 PACIFIC GAS & ELECTRIC: 3 RICHARD H. MOSS, ESQ. 4 P.O. Box 7442 San Francisco, California 94120 5 CENTRAL DELTA WATER AGENCY, et al.: 6 NOMELLINI, GRILLI & MCDANIEL 7 P.O. Box 1461 Stockton, California 95201 8 BY: DANTE JOHN NOMELLINI, ESQ. and 9 DANTE JOHN NOMELLINI, JR., ESQ. 10 TULARE LAKE BASIN WATER STORAGE UNIT: 11 MICHAEL NORDSTROM 1100 Whitney Avenue 12 Corcoran, California 93212 13 AKIN RANCH, et al.: 14 DOWNEY, BRAND, SEYMOUR & ROHWER 555 Capitol Mall, 10th Floor 15 Sacramento, California 95814 BY: KEVIN M. O'BRIEN, ESQ. 16 OAKDALE IRRIGATION DISTRICT: 17 O'LAUGHLIN & PARIS 18 870 Manzanita Court, Suite B Chico, California 95926 19 BY: TIM O'LAUGHLIN, ESQ. 20 SIERRA CLUB: 21 JENNA OLSEN 85 Second Street, 2nd Floor 22 San Francisco, California 94105 23 YOLO COUNTY BOARD OF SUPERVISORS: 24 LYNNEL POLLOCK 625 Court Street 25 Woodland, California 95695 CAPITOL REPORTERS (916) 923-5447 6591 1 REPRESENTATIVES 2 PATRICK PORGENS & ASSOCIATES: 3 PATRICK PORGENS 4 P.O. Box 60940 Sacramento, California 95860 5 BROADVIEW WATER DISTRICT, et al.: 6 DIANE RATHMANN 7 P.O. Box 156 Dos Palos, California 93620 8 FRIENDS OF THE RIVER: 9 BETSY REIFSNIDER 10 128 J Street, 2nd Floor Sacramento, California 95814 11 MERCED IRRIGATION DISTRICT: 12 FLANAGAN, MASON, ROBBINS & GNASS 13 P.O. Box 2067 Merced, California 95344 14 BY: KENNETH M. ROBBINS, ESQ. 15 CENTRAL SAN JOAQUIN WATER CONSERVATION DISTRICT: 16 REID W. ROBERTS, ESQ. 311 East Main Street, Suite 202 17 Stockton, California 95202 18 METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA: 19 JAMES F. ROBERTS P.O. Box 54153 20 Los Angeles, California 90054 21 SACRAMENTO AREA WATER FORUM: 22 CITY OF SACRAMENTO 980 9th Street, 10th Floor 23 Sacramento, California 95814 BY: JOSEPH ROBINSON, ESQ. 24 25 CAPITOL REPORTERS (916) 923-5447 6592 1 REPRESENTATIVES 2 TUOLUMNE RIVER PRESERVATION TRUST: 3 NATURAL HERITAGE INSTITUTE 4 114 Sansome Street, Suite 1200 San Francisco, California 94194 5 BY: RICHARD ROOS-COLLINS, ESQ. 6 CALIFORNIA DEPARTMENT OF WATER RESOURCES: 7 DAVID A. SANDINO, ESQ. P.O. Box 942836 8 Sacramento, California 94236 9 FRIANT WATER USERS AUTHORITY: 10 GARY W. SAWYERS, ESQ. 575 East Alluvial, Suite 101 11 Fresno, California 93720 12 KERN COUNTY WATER AGENCY: 13 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 400 Captiol Mall, 27th Floor 14 Sacramento, California 95814 BY: CLIFFORD W. SCHULZ, ESQ. 15 SAN JOAQUIN RIVER EXCHANGE CONTRACTORS: 16 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 17 P.O. Box 1679 Oroville, California 95965 18 BY: MICHAEL V. SEXTON, ESQ. 19 SAN JOAQUIN COUNTY: 20 NEUMILLER & BEARDSLEE P.O. Box 20 21 Stockton, California 95203 BY: THOMAS J. SHEPHARD, SR., ESQ. 22 CITY OF STOCKTON: 23 DE CUIR & SOMACH 24 400 Capitol Mall, Suite 1900 Sacramento, California 95814 25 BY: PAUL S. SIMMONS, ESQ. CAPITOL REPORTERS (916) 923-5447 6593 1 REPRESENTATIVES 2 ORLAND UNIT WATER USERS' ASSOCIATION: 3 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 4 P.O. Box 1679 Oroville, California 95965 5 BY: M. ANTHONY SOARES, ESQ. 6 GLENN-COLUSA IRRIGATION DISTRICT: 7 DE CUIR & SOMACH 400 Capitol Mall, Suite 1900 8 Sacramento, California 95814 BY: STUART L. SOMACH, ESQ. 9 NORTH SAN JOAQUIN WATER CONSERVATION DISTRICT: 10 JAMES F. SORENSEN CONSULTING CIVIL ENGINEER, INC.: 11 209 South Locust Street Visalia, California 93279 12 BY: JAMES F. SORENSEN 13 PARADISE IRRIGATION DISTRICT: 14 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 15 Oroville, California 95965 BY: WILLIAM H. SPRUANCE, ESQ. 16 COUNTY OF COLUSA: 17 DONALD F. STANTON, ESQ. 18 1213 Market Street Colusa, California 95932 19 COUNTY OF TRINITY: 20 COUNTY OF TRINITY - NATURAL RESOURCES 21 P.O. Box 156 Hayfork, California 96041 22 BY: TOM STOKELY 23 CITY OF REDDING: 24 JEFFERY J. SWANSON, ESQ. 2515 Park Marina Drive, Suite 102 25 Redding, California 96001 CAPITOL REPORTERS (916) 923-5447 6594 1 REPRESENTATIVES 2 TULARE IRRIGATION DISTRICT: 3 TEHEMA COUNTY RESOURCE CONSERVATION DISTRICT 4 2 Sutter Street, Suite D Red Bluff, California 96080 5 BY: ERNEST E. WHITE 6 STATE WATER CONTRACTORS: 7 BEST BEST & KREIGER P.O. Box 1028 8 Riverside, California 92502 BY: CHARLES H. WILLARD 9 COUTNY OF TEHEMA, et al.: 10 COUNTY OF TEHEMA BOARD OF SUPERVISORS 11 P.O. Box 250 Red Bluff, California 96080 12 BY: CHARLES H. WILLARD 13 MOUNTAIN COUNTIES WATER RESOURCES ASSOCIATION: 14 CHRISTOPHER D. WILLIAMS P.O. Box 667 15 San Andreas, California 95249 16 JACKSON VALLEY IRRIGATION DISTRICT: 17 HENRY WILLY 6755 Lake Amador Drive 18 Ione, California 95640 19 SOLANO COUNTY WATER AGENCY, et al.: 20 HERUM, CRABTREE, DYER, ZOLEZZI & TERPSTRA 2291 West March Lane, S.B. 100 21 Stockton, California 95207 BY: JEANNE M. ZOLEZZI, ESQ. 22 23 ---oOo--- 24 25 CAPITOL REPORTERS (916) 923-5447 6595 1 I N D E X 2 ---oOo--- 3 4 PAGE 5 OPENING OF HEARING 6597 6 AFTERNOON SESSION 6674 7 END OF PROCEEDINGS 6770 8 CROSS-EXAMINATION OF STOCKTON EAST WATER DITSRICT: 9 DANTE NOMELLINI 6597 10 TIM O'LAUGHLIN (OAKDALE/SOUTH SAN JOAQUIN) 6645 TIM O'LAUGHLIN (SAN JOAQUIN RIVER AUTHORITY) 6657 11 DAN GALLERY 6662 MICHAEL JACKSON 6720 12 BY STAFF 6759 BY THE BOARD 6769 13 14 ---oOo--- 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 6596 1 TUESDAY, NOVEMBER 17, 1998, 9:00 A.M. 2 SACRAMENTO, CALIFORNIA 3 ---oOo--- 4 C.O. CAFFREY: Good morning. And welcome back to the 5 Bay-Delta Water Rights hearing. We are as, yet, in Phase V 6 and we were in the Stockton East Water District case in 7 chief. And we were cross-examining Mr. Ploss. And we will 8 resume with Mr. Nomellini. 9 Before we do that let me just announce that 10 Mr. Del Piero is conducting another hearing in the Capital. 11 I forget the exact room number, but just for all to know it 12 is a noticed hearing on the triennial review of the Ocean 13 Plan. So he will be doing that today and other days both 14 here and in Southern California. 15 All right. With that then, Mr. Nomellini, would 16 you like to proceed then, or continue I should say. 17 ---oOo--- 18 CROSS-EXAMINATION OF STOCKTON EAST WATER DISTRICT 19 CENTRAL DELTA PARTIES 20 BY DANTE JOHN NOMELLINI 21 MR. NOMELLINI: Thank you, Mr. Chairman and Members 22 of the Board. For the record, Dante John Nomellini on 23 behalf of the Central Delta Parties. 24 Mr. Ploss, I think we left off on questions 25 related to 95-6. And we had, I believe, established that CAPITOL REPORTERS (916) 923-5447 6597 1 the 100 percent of San Joaquin River pumping requirement, 2 or limitation in the 95-6 was not a limitation, because the 3 Biological Opinions limited the pumping of San Joaquin 4 River flows to a lesser percentage. 5 Do you recall that question and answer? 6 MR. PLOSS: Yes, I do. 7 MR. NOMELLINI: What is the limitation in the 8 Biological Opinion that constrains your operation that 9 would be less percentage of San Joaquin River flow than the 10 100 percent? 11 MR. PLOSS: Under the Biological Opinion the two 12 projects are permitted to export during the pulse period 13 approximately one half of the San Joaquin flow. There's a 14 different calculation, but it's approximately one half. 15 MR. NOMELLINI: So if a limitation of 100 percent was 16 changed to correspond to the Biological Opinion that would 17 not have any adverse impact on the Bureau's operations; is 18 that correct? 19 MR. PLOSS: That's difficult to answer, because of 20 the difference between whether it was a State Board 21 standard, or subject to federal consultation, what the 22 flexibility and the operations would be. But mechanically 23 you're correct in that it wouldn't change our operation. 24 It does give us probably some latitude maybe through the 25 regulatory process that we otherwise would not have. CAPITOL REPORTERS (916) 923-5447 6598 1 MR. NOMELLINI: All right. And with regard to the 2 make-up pumping aspects of 95-6, isn't it true that even 3 without make-up pumping the Bureau would be required to 4 meet the Biological Opinion requirements which limit export 5 pumping? 6 MR. PLOSS: That is correct. 7 MR. NOMELLINI: Now, with regard to the make-up 8 pumping, is it true that the calculation of the amount of 9 water that could be exported by way of the make-up pumping 10 uses the 100 percent of the San Joaquin River flow 11 allowance as part of the calculation? 12 MR. PLOSS: That's correct. When we calculate the 13 quantity of water that is foregone as a result of the pulse 14 period under the Biological Opinion, we compare that 15 against the standards, correct. 16 MR. NOMELLINI: All right. Isn't it true that that 17 allows the Bureau to export water through the make-up 18 pumping that they would not have been able to export 19 because of the Biological Opinion limitation? 20 MR. PLOSS: If the make-up pumping is granted by the 21 State Board; that is correct. 22 MR. NOMELLINI: All right. So that if we wanted to 23 truly make-up pumping we would have to use the roughly 24 50-percent constraint as the basis for the calculation; 25 isn't that true? CAPITOL REPORTERS (916) 923-5447 6599 1 MR. BRANDT: Objection. Vague as to time. 2 MR. NOMELLINI: I missed that, excuse me? 3 MR. BRANDT: Vague as to time. 4 C.O. CAFFREY: He said vague as to time. 5 MR. NOMELLINI: The make-up pumping and the 6 50-percent requirement, we're talking about the pulse-flow 7 period; is that correct? 8 MR. PLOSS: I believe so. 9 MR. NOMELLINI: I believe the witness understands. 10 Is that all right? 11 MR. BRANDT: I just wanted to make sure for the 12 record. 13 MR. NOMELLINI: Okay. Then if we were going to truly 14 limit the make-up pumping to water foregone during the 15 pulse flow, then we would use the approximately 50-percent 16 Biological Opinion constraint rather than the 100-percent 17 San Joaquin River constraint, would we not? 18 MR. BIRMINGHAM: I'm going to object to the question 19 on the grounds it calls for a legal conclusion. 20 C.O. CAFFREY: I'd like to hear the question again, 21 I'm sorry. We can read it back or you can restate it. 22 What's your preference? 23 MR. NOMELLINI: I'm not sure I could restate it. 24 C.O. CAFFREY: Okay. Mary, are you able to read it 25 back? CAPITOL REPORTERS (916) 923-5447 6600 1 THE COURT REPORTER: Yes. 2 C.O. CAFFREY: Okay. Thank you. 3 (Whereupon the question was readback by the Reporter.) 4 MR. PLOSS: I'm not clear on what you're asking. 5 C.O. CAFFREY: All right. Try something else, 6 Mr. Nomellini. 7 MR. NOMELLINI: All right. Let me try again. With 8 regard to the make-up pumping, if the make-up pumping was 9 intended to make up simply that amount of water that was 10 foregone by the project because of the limitations during 11 the pulse-flow period, is it not true that the Biological 12 Opinion constraint on pumping during the pulse-flow period, 13 which is roughly 50-percent rather than the 100-percent 14 requirement limitation for San Joaquin River flow should be 15 used for the calculation? 16 MR. PLOSS: Let me give you a long answer, because I 17 don't know if I still understand the question. But the 18 make-up pumping is for fish protection measures. We view 19 that operating under the constraints of the Biological 20 Opinion is a fish protection measure that is beyond what 21 was required under the standard, the 100-percent Vernalis 22 flow. And, therefore, we calculate the quantity of make up 23 as the difference between the 100-percent Vernalis flow 24 that we would be allowed to pump and the quantity that we 25 pump under the Biological Opinion. CAPITOL REPORTERS (916) 923-5447 6601 1 MR. NOMELLINI: All right. It's true, then, that 2 using the 100-percent San Joaquin River flow limitation 3 allows for greater make-up pumping than using the 4 50-percent, approximately, constraint in the Biological 5 Opinion? 6 MR. PLOSS: I don't know what you mean by the 7 100-percent Vernalis flow allows for greater make up. 8 MR. NOMELLINI: Okay. If the make-up pumping is -- 9 under the Biological Opinion you would have been limited to 10 50 percent of the San Joaquin River flow during the pulse 11 period; is that correct? 12 MR. PLOSS: Correct. 13 MR. NOMELLINI: All right. And under the Water 14 Quality Control Plan, 1995 Water Quality Control Plan with 15 a 100-percent limitation on San Joaquin River flow during 16 the pulse-flow period, you could export a greater quantity 17 of water using the constraint of the 1995 Water Quality 18 Control Plan rather than the Biological Opinion constraint; 19 is that correct? 20 MR. PLOSS: That's correct. 21 MR. NOMELLINI: All right. Do you know the magnitude 22 of the difference? 23 MR. BRANDT: I'm just going to object. I mean I let 24 this go on for quite a while. We went through this in 25 Phase I, the same line of questioning about 95-6 and CAPITOL REPORTERS (916) 923-5447 6602 1 make-up pumping. So I'm going to object on asked and 2 answered, this same witness has answered these same 3 questions in Phase I. 4 C.O. CAFFREY: All right. Did we allow the witness 5 to answer the questions in Phase I? My recollection is we 6 did. And we're noting your objection in the record, 7 Mr. Brandt. And I'm going to instruct the witness to 8 answer these questions to the best of his ability. 9 MR. PLOSS: Would you repeat the question? 10 MR. NOMELLINI: Yeah. Do you know roughly what the 11 quantity is that's involved in this difference of the 12 100-percent of San Joaquin River flow versus the 13 approximately 50 percent? 14 MR. PLOSS: That quantity is based on hydrology in 15 any given year. And it's calculated on a realtime basis 16 determining what the San Joaquin flow at Vernalis would be 17 each day, what we would be allowed to pump under the 18 standard versus what we're allowed to pump under the 19 Biological Opinion. And we calculate that quantity on a 20 day-by-day basis through realtime operations. 21 MR. NOMELLINI: Could you give me a range of what 22 that might be? 23 MR. PLOSS: Well, the standards, if I recall, maximum 24 Vernalis flow -- well, I don't think I'm able to give you 25 the range, because it ranges from a high of what it might CAPITOL REPORTERS (916) 923-5447 6603 1 be in a wet year down to the critical year. And I think 2 the pulse flow requirement the maximum is about 8600, or 3 8200 csf. And I don't recall what the -- out of the 4 standard right now, what the Vernalis flow would be in a 5 critical year type. 6 MR. NOMELLINI: Well, if we use the low end of 3500 7 cubic-feet per second and the high end of 8200 cubic-feet 8 per second, in terms of acre-feet we would have about -- 9 the difference would be about 8200 acre-feet a day at the 10 high end and 3500 acre-feet at the low end; would it not? 11 MR. PLOSS: Well, at the low end the maximum -- yeah, 12 at the low end the maximum pumping allowed in the exports 13 is 1500 csf. So the water foregone is the difference 14 between the 3500 and the 1500. 15 MR. NOMELLINI: All right. Isn't it correct that the 16 1500 limitation is in the Biological Opinion and not in the 17 1995 Water Quality Control Plan? 18 MR. PLOSS: I believe that's also the minimum in the 19 Water Quality Control Plan. I'd have to check that, but I 20 believe that's also the minimum pumping. 21 MR. NOMELLINI: Okay. Then the range in terms of 22 acre-feet per day would be what? 23 MR. PLOSS: Well, it would be the acre-feet foregone 24 in the critical year type it would be about 2,000 csf a 25 day. And at the wet year type it would be approximately CAPITOL REPORTERS (916) 923-5447 6604 1 4,000 csf. 2 MR. NOMELLINI: All right. And that would be the 3 difference in the two limitations, correct? 4 MR. PLOSS: Correct. 5 MR. NOMELLINI: All right. In your answer to 6 questions by one of the other attorneys you addressed the 7 area of origin law of the State of California. And I think 8 I understood what you said, but I'd like to cover that just 9 briefly. 10 Isn't it true, that the Bureau of Reclamation in 11 allocating water pursuant to its contracts does not 12 recognize any preference for area of origin law of the 13 State of California? 14 MR. BRANDT: Objection. Vague. 15 C.O. CAFFREY: I think it's answerable. If Mr. Ploss 16 has an answer. 17 MR. PLOSS: Yes. We do not recognize area of origin 18 with respect to the contractors for the Central Valley 19 Project. 20 MR. NOMELLINI: All right. And I believe in response 21 to questions pertaining to the area of origin, you stated 22 that the Bureau would recognize priority appropriations 23 before this Board for area of origin users; is that 24 correct? 25 MR. PLOSS: We're subject to the State of California CAPITOL REPORTERS (916) 923-5447 6605 1 under our water rights and we recognize senior 2 appropriators, correct. 3 MR. NOMELLINI: You want to add anything to that? So 4 would you envision that Stockton East Water District would 5 make a filing on the Stanislaus River seeking area of 6 origin priority and that the Bureau would be willing to 7 recognize that priority? 8 MR. BIRMINGHAM: Objection. Lacks foundation. 9 C.O. CAFFREY: Mr. Nomellini, do you have a comment? 10 MR. NOMELLINI: Well, we can spend a lot of time on 11 this, but we know we're talking about New Melones 12 allocations. The contractors within -- the New Melones 13 contractors. We've already established Stockton East Water 14 District and Central San Joaquin, they're two of them. 15 And the Bureau has testified there is no 16 preference that they give to them. Under their contracting 17 procedure they do not recognize any legal requirement 18 there. So I'm pursuing the Bureau's position with regard 19 to what they have acknowledged they would recognize with 20 regard to area of origin water rights. 21 C.O. CAFFREY: Mr. Birmingham? 22 MR. BIRMINGHAM: I think Mr. Nomellini, certainly, is 23 free to inquire into that, but he needs to lay a foundation 24 for the question that he's asked about a particular water 25 agency as it relates to the area of origin statute. There CAPITOL REPORTERS (916) 923-5447 6606 1 are requirements of the area of origin statute concerning 2 the location of the water user. 3 And before asking about a particular user and 4 whether or not the Bureau will recognize the area of origin 5 rights, I think Mr. Nomellini needs to lay a foundation 6 concerning the location of that water user in terms of the 7 statute. 8 MR. NOMELLINI: Last comment from me. This is 9 cross-examination. Mr. Birmingham would like me to follow 10 his preferences on how we approach the cross-examination 11 foundation wise and otherwise. And I wasn't choosing to go 12 there first. I was choosing to go there in the reverse 13 order. 14 C.O. CAFFREY: Just a minute. 15 MR. NOMELLINI: And if he'd like to testify, I'd be 16 happy to have him up here and testify. 17 MR. BIRMINGHAM: I've declined that invitation a 18 number of times. 19 C.O. CAFFREY: Especially when that invitation isn't 20 from the Chair. Okay. Hang on just a minute, gentlemen. 21 C.O. CAFFREY: Mr. Nomellini, I think we can solve 22 this little dilemma by just asking you to restate the 23 question, but start it with a reference to something that's 24 already in the record, much the same as you did in your 25 response to Mr. Birmingham and that will get us through CAPITOL REPORTERS (916) 923-5447 6607 1 this technically, I think. 2 MR. NOMELLINI: I'm not sure I understand what you 3 want me to do. 4 C.O. CAFFREY: Well, in your response to 5 Mr. Birmingham's objection, you in your defense cited that 6 things were already in the record and you gave some 7 examples. I think if you were to ask your question in the 8 nature: This is in the record, in relation to that, here's 9 my question. 10 MR. NOMELLINI: All right. I was going to get into 11 the where Stockton East is located relative to the 12 watershed after I asked this initial question. But if you 13 want me to go there ahead of time, we've had testimony as 14 to Stockton East's location relative to the watershed of 15 the Stanislaus previously. And I did not intend to put 16 that before the witness foundationally, but I will. 17 C.O. CAFFREY: Please, understand that I'm not asking 18 you to lay a major foundation here, I'm just asking you to 19 make a reference. 20 MR. NOMELLINI: I'm not overly sensitive, I can 21 reverse this field a bit. 22 C.O. CAFFREY: All right. Go ahead, Mr. Nomellini. 23 MR. NOMELLINI: Do you know where the watershed of 24 the Stanislaus River is? 25 MR. PLOSS: I believe I do. CAPITOL REPORTERS (916) 923-5447 6608 1 MR. NOMELLINI: Do you know where the boundary of the 2 Stockton East Water District is? 3 MR. PLOSS: Not precisely and how they overlap, no. 4 MR. NOMELLINI: All right. Do you know whether or 5 not Stockton East Water District is within the watershed of 6 the Stanislaus River as you understand it? 7 MR. PLOSS: I believe it's outside the watershed. 8 MR. NOMELLINI: All right. Do you know whether or 9 not Stockton East Water District is in an area immediately 10 adjacent to the watershed of the Stanislaus River that 11 could be conveniently served with water therefrom? 12 MR. PLOSS: I think that's subject to interpretation 13 of whether it's conveniently served. 14 MR. NOMELLINI: All right. Well, let's start with 15 the first part: Would you agree that it's immediately 16 adjacent to the watershed? 17 MR. PLOSS: I believe so, yes. 18 MR. NOMELLINI: All right. Now, let's talk about 19 conveniently served. What concern do you have as to 20 whether or not it can be conveniently served, I'm talking 21 about Stockton East Water District, with water from the 22 Stanislaus River? 23 MR. PLOSS: I believe it's being served out of the 24 Stanislaus River now at some expense. But that's a 25 judgment of those members of that district to determine CAPITOL REPORTERS (916) 923-5447 6609 1 whether that's convenient. 2 MR. NOMELLINI: All right. You would agree there is 3 a facility in place that would allow for the diversion of 4 water from the Stanislaus River into the Stockton East 5 Water District, would you not? 6 MR. PLOSS: That's correct. 7 MR. NOMELLINI: And that facility is operational, is 8 it not? 9 MR. PLOSS: Yes, it is. 10 MR. NOMELLINI: So your concern as to the convenience 11 in the mind of the Stockton East Water District is what, 12 the cost? 13 MR. PLOSS: They made that determination that for 14 their purposes it is convenient, yes. 15 MR. NOMELLINI: Okay. Do you have any -- I mean 16 after we've gone through this, do you continue to have any 17 disagreement with whether or not it can be conveniently 18 served to them? 19 MR. PLOSS: I will not disagree with their decision. 20 MR. NOMELLINI: All right. With regard to the 21 Central San Joaquin Water Conservation District, do you 22 know where the boundary is of the Central San Joaquin Water 23 Conservation District? 24 MR. PLOSS: Could you repeat that? 25 MR. NOMELLINI: Do you know where the boundary is for CAPITOL REPORTERS (916) 923-5447 6610 1 the Central San Joaquin Water Conservation District? 2 MR. PLOSS: I don't know the precise boundary. 3 MR. NOMELLINI: All right. Do you know whether or 4 not any part of the Central San Joaquin Water Conservation 5 District is within the watershed of the Stanislaus River as 6 you understand it? 7 MR. PLOSS: As I understand it I believe there is a 8 portion that is within the watershed. 9 MR. NOMELLINI: All right. With regard to the 10 remainder of the area within the Central San Joaquin Water 11 Conservation District, would you agree that it is 12 immediately adjacent to the watershed of the Stanislaus 13 River and can be conveniently served with water therefrom? 14 MR. PLOSS: I believe so, yes. 15 MR. NOMELLINI: Now, do you know where the boundary 16 of the Westlands Water District is? 17 MR. PLOSS: Approximately, as has been portrayed in 18 these hearings. 19 MR. NOMELLINI: Do you believe that the Westlands 20 Water District is within the watershed of the Stanislaus 21 River as you understand it? 22 MR. PLOSS: I do not believe it is, no. 23 MR. NOMELLINI: Do you believe the Westlands Water 24 District is immediately adjacent to the watershed of the 25 Stanislaus River? CAPITOL REPORTERS (916) 923-5447 6611 1 MR. PLOSS: I do not believe it is. 2 MR. NOMELLINI: All right. With regard to the 3 question that I started off with as to a filing, would the 4 Bureau of Reclamation recognize the priority of a Stockton 5 East Water District filing for water from the Stanislaus 6 River? 7 MR. MINASIAN: Objection. The question is unclear. 8 Vague and ambiguous in terms of the word "priority." Does 9 that mean financial priority? Physical priority? Priority 10 in amount? 11 C.O. CAFFREY: Do you care to clarify, Mr. Nomellini? 12 MR. NOMELLINI: Let's try priority as to water rights 13 first. 14 C.O. CAFFREY: All right. I'll instruct the witness 15 to answer. 16 MR. PLOSS: I believe that would be subject to a 17 hearing. And without knowing the particulars of the 18 application, I can't give an opinion on that. 19 MR. NOMELLINI: All right. Let me give you some 20 particulars. Let's assume there is no question that it's 21 for a reasonable beneficial use of water for agricultural 22 purposes in Stockton East Water District. With that as a 23 given, what would the position of the Bureau of Reclamation 24 be with regard to recognizing the priority of a filing by 25 the Stockton East Water District for water from the CAPITOL REPORTERS (916) 923-5447 6612 1 Stanislaus River? 2 MR. PLOSS: With only that single fact, I can't give 3 an opinion on what the Bureau's position would be. And the 4 decision would be that of the State Board. 5 MR. NOMELLINI: Okay. Can you give me any other 6 factors other than the reasonable beneficial use of the 7 water that would be of a concern to you? 8 MR. PLOSS: Well, there are many factors that we 9 would take into consideration: The reasonable use of the 10 water, the purpose of that water, what the environmental 11 impacts might be, how that water could be conveniently 12 served out of the Stanislaus River, what facilities are 13 being used. 14 We would have to look at, from our aspect, what 15 would be the impacts on Reclamation's ability to meet its 16 own contract obligations and also how our facilities might 17 be used to meet the obligations of others that have rights 18 senior to us that rely on our facilities. We would testify 19 to all those factors if there was a hearing and rely on the 20 Board to make a determination. 21 MR. NOMELLINI: Would the Bureau be willing to allow 22 Stockton East to utilize New Melones for storage of water 23 under its particular filing? 24 MR. PLOSS: That would be subject to negotiations 25 that would have to take place between Stockton East and the CAPITOL REPORTERS (916) 923-5447 6613 1 Bureau of Reclamation. I believe at this point all the 2 storage in New Melones -- New Melones is being utilized by 3 the Central Valley Project. 4 MR. NOMELLINI: So, then, in such a case the Bureau 5 would expect Stockton East to construct another reservoir 6 on the Stanislaus River if it desired to appropriate water 7 for storage? 8 MR. PLOSS: I think under your example I wouldn't 9 have any opinion on what we would expect Stockton East to 10 do. 11 MR. NOMELLINI: In terms of the Bureau's direction on 12 area of origin preferences under California law, do you 13 recall that a draft was being circulated of the Solicitor's 14 opinion in connection with the CVPIA marathon meetings that 15 went on up and down the State? 16 MR. PLOSS: Yes. 17 MR. NOMELLINI: All right. And you were present when 18 the promise was made that the Bureau would set forth their 19 position on area of origin preferences, were you not? 20 MR. BIRMINGHAM: I'm going to object. And maybe 21 Mr. Nomellini could explain the relevance of this line of 22 questioning to issues that are being considered by the 23 Board in connection with any phase of the water rights 24 hearing. 25 C.O. CAFFREY: Go ahead, Mr. Nomellini. CAPITOL REPORTERS (916) 923-5447 6614 1 MR. NOMELLINI: I'd be happy to. We're in Phase V, I 2 think. In terms of determining the -- 3 C.O. CAFFREY: Since the 21st of -- was it September? 4 MR. NOMELLINI: We're trying to determine the 5 responsibilities for salinity and dissolved oxygen in the 6 San Joaquin River. In our view, the Central Delta Parties, 7 the Bureau of Reclamation is exporting water from the Delta 8 that goes to the west side of the valley and without a 9 drain it contributes to the salinity of the San Joaquin 10 River and that the salinity must be diluted with water from 11 New Melones. 12 And we've argued that, to some extent, that, you 13 know, they haven't been meeting the salinity requirements. 14 Our contention is that the use of New Melones water the way 15 the Bureau is doing it, to dilute the salinity which they 16 caused by the diversion, "they" the Bureau caused by the 17 diversion, is an unreasonable use of water, because it's 18 depriving the area of origin contractors of water that 19 would be delivered to them and that the water should be 20 taken from the export contractors. 21 You know, we've been talking about taking water 22 from the San Luis, the land retirement, I'm not sure we've 23 got enough answers to know how that might actually help the 24 situation. But it is, certainly, in that regard that we've 25 been stating time and time again that we believe the Bureau CAPITOL REPORTERS (916) 923-5447 6615 1 should comply with the area of origin of law and the 2 preferences. And we're trying to pursue that in this case 3 to show the Bureau's actions are unreasonable. 4 And that, therefore, when we do get a decision 5 from you that it will require the Bureau to take the water 6 from the export contractors to meet the salinity 7 requirements in the San Joaquin River to the extent that 8 it's feasible; thereby alleviating the burden on New 9 Melones and facilitating the delivery to the area of origin 10 contractors. That's what I've been working on. And that's 11 the relevance. 12 MR. BIRMINGHAM: Whether or not the Department of the 13 Interior Solicitor's Office is going to prepare an opinion 14 concerning how it might interpret area of origin doesn't 15 relate at all to what Mr. Nomellini just explained. That 16 is a legal argument that he can make to the Board based 17 upon factual answers that any witness may provide during 18 the hearing. But what Interior is doing in formulating 19 some opinion really is irrelevant. 20 MR. NOMELLINI: Well, I think not. 21 C.O. CAFFREY: Go ahead, Mr. Nomellini. 22 MR. NOMELLINI: I think it goes to the 23 reasonableness. And I would contend that the actions of 24 the Bureau are patently unreasonable in their conduct of 25 the project with regard to San Joaquin River salinity. And CAPITOL REPORTERS (916) 923-5447 6616 1 I hope to pursue it further to help demonstrate that. Part 2 of this was a clear promise that the Bureau would make 3 clear what their position is on area of origin. 4 They promised that during the CVPIA process that 5 they would come forth with that. The only thing I know of 6 so far is the draft. And I wanted to ask Mr. Ploss whether 7 anything has been put forth on that. That's one of the 8 promises that was made in that process. He was there. I 9 was there and I asked the specific question. And I think 10 it goes to whether or not we can rely on the Bureau acting 11 in good faith. And I think that's relevant to these 12 proceedings and it's certainly relevant to the 13 cross-examination of this witness. 14 C.O. CAFFREY: Mr. Herrick, I'll allow you a brief 15 comment. Go ahead. 16 MR. HERRICK: I would just add that the method by 17 which the Bureau calculates the availability of water from 18 New Melones is necessarily relevant to the issue of 19 salinity control in the San Joaquin River. 20 C.O. CAFFREY: All right. Mr. Birmingham's objection 21 is in the record, but I'm going to allow the witness to 22 answer the question and for Mr. Nomellini to pursue this 23 line of questioning. 24 MR. NOMELLINI: I think we left off where we had 25 agreement from you, Mr. Ploss, that the promise was made CAPITOL REPORTERS (916) 923-5447 6617 1 that the Bureau would set forth its position on area of 2 origin preferences under California law. 3 Do you agree with that? 4 MR. PLOSS: I think that was your question. I didn't 5 respond to it. 6 MR. NOMELLINI: Okay. 7 MR. PLOSS: Do you want to re-ask the question? 8 MR. NOMELLINI: Yeah. Do you agree that the promise 9 was made that the Bureau would set forth its position on 10 California area of origin preferences in connection with 11 the marathon CVPIA meetings up and down the State? 12 MR. PLOSS: I believe the promise was that we would 13 draft a paper on our interpretation of area of origin. I 14 believe that paper was drafted and made public. To my 15 knowledge no further preparation, or filing of that paper 16 was carried out. 17 MR. NOMELLINI: All right. So the paper you're 18 talking about is the one marked "Draft"? 19 MR. PLOSS: I believe that's it. 20 MR. NOMELLINI: And there's no other document that 21 you know of that the Bureau has following that draft that 22 would eliminate the draft designation? 23 MR. PLOSS: If we're talking about the same paper. I 24 don't have it here. 25 MR. NOMELLINI: Is there another one? CAPITOL REPORTERS (916) 923-5447 6618 1 MR. PLOSS: I know of one. 2 MR. NOMELLINI: Okay. All right. In the operations 3 of the Bureau and the delivery of water to the west side of 4 the San Joaquin River, would you agree that some of the 5 water exported by the Bureau has been delivered to areas 6 outside the permitted place of use of the permits of the 7 Bureau of Reclamation? 8 MR. PLOSS: I believe that may be the case and that 9 is why it's being heard in these proceedings. 10 MR. NOMELLINI: All right. When you say "may be the 11 case," is there some uncertainty in your mind as to whether 12 or not deliveries have been made outside the permitted 13 place of use of the permits of the Bureau? 14 MR. PLOSS: I've not been involved directly in that 15 process and that application. So I can't give you any 16 specifics. I'm just stating that I believe that is the 17 case and that's the reason that we have applied for that 18 modification. 19 MR. NOMELLINI: All right. Do the places of use of 20 the permits of the Bureau of Reclamation in any way enter 21 into the decision-making process that you participate in 22 with regard to operation of the Bureau's project? 23 MR. PLOSS: No. 24 MR. NOMELLINI: When did you first become aware that 25 deliveries of Bureau water may have been utilized outside CAPITOL REPORTERS (916) 923-5447 6619 1 the permitted place of use of the Bureau's permits? 2 MR. PLOSS: Again, I have no specifics that water is 3 being delivered outside the permitted place. My knowledge 4 is I first became aware of -- aware of that as you're 5 stating, when I became aware that we have an application 6 before the Board, what's being referred to as I believe a 7 consolidated use to cleanup the permits. 8 MR. NOMELLINI: Okay. When was that that you first 9 became aware of it? 10 MR. PLOSS: I believe in preparation for these 11 hearings, may have been a year or two years ago. 12 MR. NOMELLINI: Is it a separate department within 13 the Bureau that handles the water rights for the Bureau 14 project? 15 MR. PLOSS: Yes, it is. 16 MR. NOMELLINI: And what department is that? 17 MR. PLOSS: That's within our Resources Management 18 Division of our Regional Office. 19 MR. NOMELLINI: Does the Resources Management 20 Division provide the operations, excuse me for not 21 remembering the formal title of your position, but do they 22 give you instructions? 23 MR. PLOSS: I would say, no. 24 MR. NOMELLINI: How do you know whether or not your 25 operations are within the scope of the permits, water right CAPITOL REPORTERS (916) 923-5447 6620 1 permits from the State Water Resource Control? 2 MR. PLOSS: The scope of the work that I direct to 3 operate the Central Valley Project involves the hydrology 4 of the Central Valley, projecting how much water is 5 available for regulation and storage in our reservoirs and 6 then how much water can be allocated as a percentage of the 7 contracts held between the water users and the Bureau of 8 Reclamation. We do not look at our operations with respect 9 to where that water would be served by any individual 10 contractor. 11 MR. NOMELLINI: Who in the Bureau of Reclamation 12 makes the decision to turn off the pumps when the pumping, 13 export pumping exceeds the permitted level, let's say for 14 example, the 50 percent of the San Joaquin River flow 15 during the pulse-flow period? 16 MR. PLOSS: First, we don't turn the pumps off. We 17 adjust our operations on a daily basis trying to average 18 out the exports in comparison to the flow. And that 19 decision is made through my office. 20 MR. NOMELLINI: And are you involved in that 21 decision? 22 MR. PLOSS: Yes. 23 MR. NOMELLINI: Then with regard to that phase of the 24 operation, you do follow the requirements of the permits 25 issued by the State Water Resource Control Board; is that CAPITOL REPORTERS (916) 923-5447 6621 1 true? 2 MR. PLOSS: We follow those permits in operating the 3 project as well as the requirements of our various 4 biological opinions. 5 MR. NOMELLINI: Okay. So it's just with regard to 6 the place of use as included in those permits that, since 7 you've been there, you have not had any concern or 8 awareness of? 9 MR. PLOSS: We determine the water that can be 10 allocated from the project to the contractors as a 11 percentage of their contract amounts. We, in my office, do 12 not administer those contracts with regard to specific 13 daily deliveries or how the water is used. 14 MR. NOMELLINI: Okay. So is it true then that the 15 deliveries outside the permitted place of use are in the 16 Bureau's view an action by the contractor not involving 17 affirmative decision making by the Bureau? 18 MR. PLOSS: What I said was that I'm not -- our 19 office is not involved in that. That is an area that is 20 dealt with by our contract administration personnel that 21 are in other offices, both the Regional Office and our area 22 offices and how they interact with our contractors. 23 MR. NOMELLINI: All right. So you would not know the 24 quantity of water that was delivered outside the permitted 25 place of use then? CAPITOL REPORTERS (916) 923-5447 6622 1 MR. BRANDT: Objection. Relevance. I mean we've 2 gone a little ways here, but this is Phase VII -- or these 3 questions are appropriate for Phase VII. So are we going 4 to do this over again? 5 MR. NOMELLINI: Phase V, San Joaquin River. And we 6 have evidence in the record to show that some of the 7 Westlands water was delivered outside the place of use. 8 C.O. CAFFREY: So your question, if I understood it, 9 was: What would be the use of the water if it were -- 10 MR. NOMELLINI: I just wanted to know if he knew the 11 quantity. 12 C.O. CAFFREY: Oh, the quantity. I'll allow the 13 answer. Go ahead, Mr. Ploss, you may answer the question. 14 MR. PLOSS: The answer is, no. 15 MR. NOMELLINI: Okay. All right. Let me show you 16 the 1987 Agreement between the Department of Fish and Game 17 and the United States Department of the Interior, Bureau of 18 Reclamation regarding interim instream flows and fishery 19 studies in the Stanislaus River below New Melones 20 reservoir. 21 I couldn't find it in the record, yet, so I marked 22 it as Central Delta Water Agency Number 23, which would be 23 the next in order for Central Delta Water Agency. I have a 24 bunch of the copies here. And I will distribute and serve 25 them on all the rest of the parties. I can't believe it's CAPITOL REPORTERS (916) 923-5447 6623 1 not already in the record, but -- 2 C.O. CAFFREY: Any comment? You've already talked 3 with Ms. Whitney? 4 MR. NOMELLINI: No, I haven't. I'm talking to her 5 now through this microphone. 6 C.O. CAFFREY: All right. 7 MR. NOMELLINI: I made 40 copies for today. So it 8 may not cover it. Is it already in the record? 9 C.O. CAFFREY: Do we know, Ms. Whitney, if this 10 document is already in the record? 11 MS. WHITNEY: I don't believe that it is. 12 C.O. CAFFREY: It apparently is not, may not be. But 13 if it already is, it doesn't do any harm to number it 14 again. 15 MR. NOMELLINI: Expect when we buy the record we're 16 going to pay for it twice. 17 MS. WHITNEY: Mr. Caffrey? 18 C.O. CAFFREY: Yes, Ms. Whitney. 19 MS. WHITNEY: I think the only place it might occur 20 in the record is indirectly and that's in the modeling 21 assumptions that are contained in the CD's that we got from 22 the Department. 23 C.O. CAFFREY: So there's references to it, but it's 24 not officially one of the exhibits? 25 MS. LEIDIGH: I think that's what she's saying. CAPITOL REPORTERS (916) 923-5447 6624 1 C.O. CAFFREY: Then I think it's appropriate to mark 2 it here and consider it for introduction into the record 3 when we're done with the cross-examination. 4 MR. NOMELLINI: All right. Mr. Ploss, I'm going to 5 ask you a series of questions pertaining to Central Delta 6 Water Agency Number 23. And I've handed you a copy. Have 7 you had enough time to peruse it? 8 MR. PLOSS: I haven't looked through it from cover to 9 cover. 10 MR. NOMELLINI: All right. If more time is required 11 in the process of the questioning, perhaps, we'll have to 12 ask the Chair to allow -- 13 C.O. CAFFREY: Do you want to take a few minutes, 14 Mr. Ploss, to look over the document? We can do that. 15 Would you like to do that, Mr. Ploss? 16 MR. PLOSS: No. Let's proceed. 17 C.O. CAFFREY: All right. 18 MR. NOMELLINI: Okay. Referring to DOI Exhibit 4-C 19 which is on the screen, in previous questioning you 20 testified that the 1987 Fish Agreement was a requirement of 21 the project. And I think at first we had it Number 1 and 22 then we moved it to Number 2. 23 Do you recall that? 24 MR. PLOSS: Yes. 25 MR. NOMELLINI: All right. And is the reference in CAPITOL REPORTERS (916) 923-5447 6625 1 DOI Exhibit 4-C to the Fish '87 Agreement to what I have 2 handed you as Central Delta Water Agency Number 23? 3 MR. PLOSS: Yes. That's the releases that we'd make 4 from New Melones consistent with the '87 Agreement. 5 MR. NOMELLINI: All right. Now, you testified 6 previously that all of those releases were for instream 7 purposes on the Stanislaus, did you not? 8 MR. PLOSS: That's correct. 9 MR. NOMELLINI: And you would agree that none of 10 those flows are for any purpose outside the Stanislaus 11 River? 12 MR. PLOSS: They were released to meet the flow 13 schedules that were provided to us by Fish and Game for the 14 Stanislaus River. 15 MR. NOMELLINI: All right. Is it your understanding 16 that the '87 Fish Agreement, Central Delta Water Agency's 17 Number 23, is only for the purpose of providing Stanislaus 18 River instream flow? 19 MR. PLOSS: There's other purposes to the agreement. 20 It certainly provides for the flow schedules for instream 21 flow, but it also recognized that there was a number of 22 special studies that had to be carried out. 23 MR. NOMELLINI: Okay. Let me call your attention to 24 Paragraph B on Page 1 of Central Delta Water Agency's 23. 25 And this is a recital, is it not? CAPITOL REPORTERS (916) 923-5447 6626 1 MR. PLOSS: Yes. 2 MR. NOMELLINI: And could you read into the record 3 Paragraph B? 4 MR. PLOSS: "Through its operation, the Bureau's New 5 Melones Reservoir can materially affect the amount and 6 timing of instream flows available below," parentheses, 7 "downstream of Goodwin Dam. Therefore affecting the 8 welfare and success of salmon stocks and other fishery 9 resources of the Stanislaus River and the San Joaquin River 10 in the reach between the Stanislaus confluence and San 11 Joaquin-Sacramento Delta. 12 It is recognized, however, that the adequacy of 13 instream flows in the San Joaquin River in the Delta 14 reaches is dependent upon conditions and instream flow 15 releases from other upstream tributaries in addition to the 16 Stanislaus River." 17 MR. NOMELLINI: All right. You would agree that the 18 recital references both the fishery resources of the 19 Stanislaus River and of the San Joaquin River in the reach 20 between the Stanislaus River confluence and the San 21 Joaquin-Sacramento River Delta; is that correct? 22 MR. PLOSS: Correct. 23 MR. NOMELLINI: Do you know if any of the releases 24 made pursuant to the Fish '87 Agreement are for purposes of 25 fishery resources in the San Joaquin River in the reach CAPITOL REPORTERS (916) 923-5447 6627 1 between the Stanislaus River confluence and the San 2 Joaquin-Sacramento Delta? 3 MR. PLOSS: I cannot say what the Department of Fish 4 and Game took into consideration when they provided us with 5 their flow schedules. 6 MR. NOMELLINI: So you don't know whether or not the 7 releases under the Fish '87 Agreement are solely for the 8 purpose of instream uses in the Stanislaus River, do you? 9 MR. PLOSS: That has been our belief when they gave 10 us those schedules that they are for the Stanislaus River. 11 To what degree Fish and Game determine that those flows 12 would help further downstream, I'm not aware of that. We 13 interpret their schedule for the Stanislaus River. 14 MR. NOMELLINI: Do you know whether or not any 15 analysis has been made to determine whether or not the Fish 16 '87 Agreement releases are solely for the purpose of 17 instream flow requirement in the Stanislaus? 18 MR. PLOSS: I'm not aware of any analysis. 19 MR. NOMELLINI: With regard to the instream flow 20 releases under the Fish '87 Agreement, is there a written 21 request that goes from the Department of Fish and Game to 22 the Bureau each year requesting a specific flow release? 23 MR. PLOSS: Yes, there is. 24 MR. NOMELLINI: And is that in writing? 25 MR. PLOSS: They will give us a letter early in the CAPITOL REPORTERS (916) 923-5447 6628 1 calendar year outlining what their desired flow would be on 2 the Stanislaus River for each month for their monthly mean 3 flow. 4 MR. NOMELLINI: And who has custody of those letters 5 for the period beginning in June of 1987 to the present? 6 MR. PLOSS: They are held within the records of the 7 Bureau of Reclamation. 8 MR. NOMELLINI: Who -- is it somebody in California 9 that has these records? 10 MR. PLOSS: We have a lot of employees. Not one 11 individual employee holds the records. They are held 12 within our records of our system. 13 MR. NOMELLINI: Okay. Do you have such records? 14 MR. PLOSS: We may have some of them in our files. 15 MR. NOMELLINI: When you say "we may have some of 16 those records in our files," what files are you talking 17 about? 18 MR. PLOSS: We have central files within our Regional 19 Office where records are held. At the time our office was 20 within the Regional Office they were retained within the 21 central files there. We relocated our office in 1995. And 22 since that date there are records that are retained within 23 the central files of my office. 24 MR. NOMELLINI: So for the years 1995 to the present, 25 is it your testimony that the letters from the Department CAPITOL REPORTERS (916) 923-5447 6629 1 of Fish and Game for releases under the Fish '87 Agreement 2 are in your files? 3 MR. PLOSS: Yes. 4 MR. NOMELLINI: And for the period prior to that time 5 extending back to June of '87, those would be in the 6 central files in the Regional Office? 7 MR. PLOSS: I -- 8 MR. BRANDT: Asked and answered. Objection. 9 MR. PLOSS: I expect so. 10 C.O. CAFFREY: I heard your statement and it is in 11 the record, thank you, sir. We want to reframe as much as 12 we can from -- 13 MR. NOMELLINI: I wasn't going to spend a lot of time 14 on it, no. 15 C.O. CAFFREY: This is not to berate you at all, 16 Mr. Nomellini, we all do it. But to the extent that the 17 attorneys can avoid repeating questions that have been 18 asked and answered of the same witness, we certainly 19 appreciate that. 20 In the face of those objections from here on out 21 I'll ask the attorney if he or she agrees that it's in the 22 record and we'll have discussion on that basis, but, 23 please, proceed. 24 MR. NOMELLINI: Now, you indicated in prior testimony 25 that the CVPIA B-1/B-2 releases as shown on DOI Exhibit 4-C CAPITOL REPORTERS (916) 923-5447 6630 1 were strictly for instream flow purposes on the Stanislaus 2 River; is that correct? 3 MR. PLOSS: That is correct. 4 MR. NOMELLINI: Has the Bureau made any study with 5 regard to verifying that the CVPIA B-1/B-2 releases from 6 New Melones are solely for the purpose of instream flows on 7 the Stanislaus? 8 MR. PLOSS: Bureau of Reclamation has done no such 9 study. 10 MR. NOMELLINI: How do you determine how much release 11 from New Melones should be made for the CVPIA B-1/B-2 12 purpose? 13 MR. PLOSS: We rely on recommendations from the U.S. 14 Fish and Wildlife Service. It has that responsibility 15 under the Central Valley Project Improvement Act to make 16 recommendations on flow requirements. They provide those 17 to us. And we operate in accordance to those 18 recommendations. 19 MR. NOMELLINI: And are those recommendations given 20 to you in writing? 21 MR. PLOSS: Those recommendations were given to us in 22 writing prior to this year. We're now operating in 23 accordance to the recommendations that are in the November 24 20th administrative proposal for Section B-2 of CVPIA. 25 MR. NOMELLINI: All right. Prior to this year and CAPITOL REPORTERS (916) 923-5447 6631 1 extending back to 1987, do you know who in the Bureau of 2 Reclamation has copies of the written requests from the 3 U.S. Fish and Wildlife Service for releases from New 4 Melones Reservoir for CVPIA B-1/B-2 purposes? 5 MR. PLOSS: There was no such request prior to 6 October of 1992 when CVPIA was enacted. Those records 7 since that date would be retained within the Bureau of 8 Reclamation's record files, either in the Regional Office 9 or in my office. 10 MR. NOMELLINI: Is it, again, the case where since 11 1995 such requests would be in your office? 12 MR. PLOSS: That is correct. 13 MR. NOMELLINI: And prior to that time, going back to 14 1992 those would be in the central files in the Regional 15 Office? 16 MR. PLOSS: That's correct. 17 MR. NOMELLINI: Do you recall whether or not any of 18 the written requests from the U.S. Fish and Wild -- Strike 19 that. 20 Do you recall whether or not any of the 21 recommendations from the U.S. Fish and Wildlife Service for 22 releases of New Melones water for the purpose of the CVPIA 23 B-1/B-2 purposes included a certification that the water 24 was for the purpose of instream flows in the Stanislaus? 25 MR. PLOSS: I'm not clear on your term when you're CAPITOL REPORTERS (916) 923-5447 6632 1 asking for "certification." 2 MR. NOMELLINI: All right. Let's include in that 3 term a representation, or description that such flows are 4 for instream flow purposes in the Stanislaus. 5 MR. PLOSS: I believe their recommendation included 6 the mean monthly flows that they recommended we release 7 from New Melones throughout the year and a brief 8 description of what the basis was, or the purpose for those 9 releases. 10 MR. NOMELLINI: All right. Have you reviewed those 11 descriptions prior to your testimony in this hearing today? 12 MR. PLOSS: No. 13 MR. NOMELLINI: Do you recall whether or not you 14 reviewed those letters in making determinations as to 15 operations of the Bureau's project with regard to whether 16 or not the flows requested were limited to instream flow 17 purposes on the Stanislaus? 18 MR. PLOSS: We did not make a determination if those 19 flow requests were limited to the Stanislaus River. The 20 recommendation was made for release on the Stanislaus 21 River. And we rely on Fish and Wildlife's judgment in that 22 respect. 23 MR. NOMELLINI: All right. Is there a requirement 24 that you operate the project to limit releases from New 25 Melones Reservoir to instream flow purposes on the CAPITOL REPORTERS (916) 923-5447 6633 1 Stanislaus for CVPIA B-1/B-2 purposes? 2 MR. PLOSS: We're not required to limit our releases 3 to that amount. That is a recommended minimum flow. We 4 may under given circumstances go above that flow, if that's 5 what you're asking is a limit. 6 MR. NOMELLINI: Excuse me, you would agree, would you 7 not, that CVPIA B-1/B-2 purposes are not limited to fishery 8 needs in the Stanislaus alone? 9 MR. PLOSS: Correct. 10 MR. NOMELLINI: So how -- well, could you tell me the 11 basis of your testimony that all of the releases from New 12 Melones Reservoir for CVPIA B-1/B-2 are limited to the 13 instream flow purposes on the Stanislaus? 14 MR. PLOSS: The recommendations are made to my office 15 by the Fish and Wildlife Service as to the recommended 16 flows for the Stanislaus River. I'm not aware of any 17 analysis done by Fish and Wildlife on the use of those 18 flows once they leave the confluence of the Stanislaus 19 River and the San Joaquin River. The recommendations are 20 made specific to the Stanislaus River. 21 MR. NOMELLINI: All right. Staying right on that, is 22 it your testimony that the releases are made for the 23 purpose of instream flows in the Stanislaus and not simply 24 for the amount of release to be made from the Stanislaus? 25 Do you understand that distinction? CAPITOL REPORTERS (916) 923-5447 6634 1 MR. PLOSS: Repeat it. 2 MR. NOMELLINI: All right. Is it your testimony that 3 the requests for releases from New Melones Reservoir are 4 for the purpose of instream flow in the Stanislaus as 5 opposed to being simply a release from the Stanislaus 6 River? 7 MR. PLOSS: That's my interpretation that the flow is 8 for instream flows in the Stanislaus. 9 MR. NOMELLINI: Okay. Calling your attention to 4-E, 10 which I think is Department of Interior -- correct, DOI 11 4-E. Table 2 shows under fishery purposes a range from 0 12 to 467,000 acre-feet; is that correct? 13 MR. PLOSS: That is correct. 14 MR. NOMELLINI: All right. And if you would look at 15 Central Delta Water Agency's Exhibit 23 could you tell 16 us -- calling your attention to Page 3 at the bottom, could 17 you tell us what the maximum total number of acre-feet that 18 could be required under the '87 Agreement is? 19 MR. PLOSS: The '87 Agreement specifies a maximum of 20 302,100 acre-feet. 21 MR. NOMELLINI: All right. And that's what the other 22 day you were kind of roughly recalling that as being maybe 23 305,000? 24 MR. PLOSS: Yes. 25 MR. NOMELLINI: So your testimony is more correct at CAPITOL REPORTERS (916) 923-5447 6635 1 302,100 then, correct? 2 MR. PLOSS: Correct. 3 MR. NOMELLINI: And with regard to the difference 4 between the 302,000 and the 467,000 would that be the CVPIA 5 B-1/B-2 water? 6 MR. PLOSS: That is correct. 7 MR. NOMELLINI: Now, in previous testimony you 8 indicated that the Bureau was a sponsor of the Interim 9 South Delta Improvement Program; is that correct? 10 MR. PLOSS: Yes. 11 MR. NOMELLINI: And does that sponsorship by the 12 Bureau include the proposed increase in export pumping? 13 MR. PLOSS: With the Department of Water Resources 14 that is correct. 15 MR. NOMELLINI: Does the Bureau of Reclamation have 16 any plans to improve the salinity of the San Joaquin River 17 by other than dilution flows? 18 MR. PLOSS: We are actively involved in a drainage 19 program in the San Joaquin basin which is intended to 20 improve salinity control, salinity in the San Joaquin 21 River. 22 MR. NOMELLINI: Okay. And what actions are included 23 in that drainage program? 24 MR. PLOSS: I'm not involved, nor is my office 25 involved in that program. And so I don't have any CAPITOL REPORTERS (916) 923-5447 6636 1 knowledge of it. 2 MR. NOMELLINI: When you say, you don't have any 3 knowledge of it, does that mean you don't know anything 4 about the land retirement program element? 5 MR. PLOSS: None of the specifics. I know there's 6 drainage activities underway for improving drainage from 7 lands, land retirement, water conservation. I believe some 8 on-farm recirculation, or recaptured water, but I don't 9 know any of the details. 10 MR. NOMELLINI: Do you know whether or not there's 11 any particular objective for salinity in the San Joaquin 12 River upstream of Vernalis that the Bureau would like to 13 achieve with such a drainage program? 14 MR. PLOSS: I'm not aware of what the targets would 15 be under the program. 16 MR. NOMELLINI: Do you know whether or not there is a 17 target? 18 MR. PLOSS: I'm not aware if there is a target. 19 MR. NOMELLINI: You had indicated in prior testimony 20 that water allocations to your contractors were without 21 preference. Is that a correct summary of your testimony? 22 MR. PLOSS: We treat all of our contractors within 23 the CVP within a quality contract category with equal 24 priority. When I say "category" I'm referring to 25 agricultural service versus municipal and industrial CAPITOL REPORTERS (916) 923-5447 6637 1 service. So all agricultural contractors are treated on an 2 equal priority. And all M&I contractors are treated on an 3 equal priority. 4 MR. NOMELLINI: Okay. Let me show you Page 4-8 of 5 Staff Exhibit 167 which is the Draft CVP/EIR. 6 MR. BRANDT: Could I ask for a little more specifics 7 on "Draft CVP/EIR"? 8 MR. NOMELLINI: The Draft PEIS on the CVPIA. 9 C.O. CAFFREY: Thank you, Mr. Nomellini. 10 MR. NOMELLINI: Figured I'd get out of the way of the 11 viewer so you could see it. All right. Mr. Ploss -- 12 C.O. CAFFREY: Excuse me, Mr. Nomellini. I've lost 13 track. Is this an exhibit that's already in the record? 14 MR. NOMELLINI: Correct. 15 C.O. CAFFREY: All right. Thank you, sir. You did 16 identify the number? 17 MR. NOMELLINI: Yeah, it is Staff Exhibit 167. 18 C.O. CAFFREY: Thank you. 19 MR. NOMELLINI: Calling your attention to CVP 20 agricultural water service contractors south of the Delta, 21 which is the second box on the left-hand side, you see 22 that? 23 MR. PLOSS: Yes, I do. 24 MR. NOMELLINI: Do you know what that depicts? 25 MR. PLOSS: This is a graph comparing what the CAPITOL REPORTERS (916) 923-5447 6638 1 resulting deliveries to ag contractors south of the Delta 2 would be under different assumptions used in the 3 Programmatic EIS. 4 MR. NOMELLINI: And that -- for the CVP agricultural 5 water service contractors south of the Delta, that graph 6 would show for the line that's farthest to the left, which 7 I believe is the recent-conditions scenario, that under 8 roughly a 50-percent exceedance the contractors south of 9 the Delta would receive roughly 83 percent of full 10 delivery; is that correct? 11 MR. PLOSS: I don't know if the 83 is correct, but 12 generally that's what the graph illustrates. 13 MR. NOMELLINI: All right. Tell me -- give me your 14 estimate of what that number would be based on that graph? 15 MR. PLOSS: Looking at the graph there I would simply 16 just say 80 percent. 17 MR. NOMELLINI: All right. And going down now below 18 that to the CVP agricultural water service contractors in 19 the east side division and using the same recent condition 20 scenario, what does that show us for the 50-percent 21 exceedance? 22 MR. PLOSS: It appears to be approximately 70 23 percent. 24 MR. NOMELLINI: And who are the CVP agricultural 25 water service contractors in the east side division? CAPITOL REPORTERS (916) 923-5447 6639 1 MR. PLOSS: Those would be the ones served out of New 2 Melones. 3 MR. NOMELLINI: And who are they? 4 MR. PLOSS: Stockton East Water District and Central 5 San Joaquin Water Conservation District. 6 MR. NOMELLINI: All right. And with regard to the 7 contractors south of the Delta, who -- well, with regard to 8 south of the Delta does that include the Westlands Water 9 District? 10 MR. PLOSS: Yes, it does. 11 MR. NOMELLINI: And it includes the Exchange 12 Contractors, does it not? 13 MR. PLOSS: No. 14 MR. NOMELLINI: Okay. And does it include Del Puerto 15 Irrigation District? 16 MR. PLOSS: I don't recall all of the water 17 districts. There's I think about 20 -- 20 or more 18 districts. I don't recall all the names. 19 MR. NOMELLINI: All right. Do you recall some other 20 than Westlands? 21 MR. PLOSS: I know we serve San Benito down there, 22 Santa Clara. I don't know how much ag they receive, those 23 are some of them. 24 MR. NOMELLINI: Okay. And would you not agree that 25 the graphs shown in Figure 4-1 clearly reflects that the CAPITOL REPORTERS (916) 923-5447 6640 1 CVP agricultural water service contractors in the east side 2 division are not going to fare as well as the CVP 3 agricultural water service contractors south of the Delta 4 in terms of percent of full deliveries under their 5 contracts? 6 MR. PLOSS: Under the assumptions used for the study 7 purposes of the Programmatic EIS, that's what is 8 demonstrated here. 9 MR. NOMELLINI: All right. Is there any plan to make 10 sure that the CVP agricultural water service contractors in 11 the east side division are treated with equal priority to 12 those contractors south of the Delta? 13 MR. PLOSS: The purpose of this study is to 14 demonstrate the consequences of implementing the CVPIA. 15 It's not necessarily for the purpose of how we administer 16 individual contracts. 17 MR. NOMELLINI: Is it your testimony that the CVP 18 agricultural water service contractors in the east side 19 division can in the future expect to be treated at least 20 with equal priority to those CVP contractors south of the 21 Delta? 22 MR. PLOSS: Okay, I'm unable to answer that on 23 what -- or how the contractors will be treated in the 24 future. 25 C.O. CAFFREY: Mr. Nomellini, while you're holding CAPITOL REPORTERS (916) 923-5447 6641 1 your thought there, I was curious how much more time you 2 will need just from the standpoint of how we break up the 3 morning. 4 MR. NOMELLINI: I think that has covered all of the 5 area that I want to cover. 6 C.O. CAFFREY: Gee, what a coincidence I would ask. 7 MR. PLOSS: I know he exceeded his 30 minutes. 8 MR. NOMELLINI: Now, wait a minute. It depends on 9 whose 30 minutes. 10 C.O. CAFFREY: Mr. Ploss, those early estimates are 11 for -- 12 MR. NOMELLINI: All right. That is my cross. Thank 13 you very much, Mr. Ploss. 14 C.O. CAFFREY: Thank you, Mr. Nomellini. Before we 15 take a break I'd like to make an announcement with regard 16 to the hearing schedule. We've been working with the 17 schedule and just so that you'll know so that you can do 18 your planning, if you'll look at whatever copies of the 19 most recent schedule we have of hearing dates you'll see 20 that Thursday, December 3rd was, I believe, a half day 21 scheduled for hearing. 22 We are now -- and we will put out a written notice 23 in the very near future to corroborate this, but it is our 24 plan on that day to use that time for a Board meeting to 25 consider the extension of 95-6. So backing up from that CAPITOL REPORTERS (916) 923-5447 6642 1 date, we would be issuing a draft order on the -- 2 Ms. Whitney? 3 MS. WHITNEY: It will be issued on Friday the 20th. 4 C.O. CAFFREY: Friday the 20th, that's this coming 5 Friday. Thank you. We would be issuing a draft order this 6 coming Friday. And it will be a voting meeting and we will 7 not be taking evidence on the 3rd, but we will allow any 8 party or member of the public that wishes to comment to do 9 so. So we will use that half day, at least that half day, 10 perhaps, for that purpose. But I wanted you all to be 11 aware of that so you can do whatever planning you may have 12 had in mind for the availability of your witnesses. 13 Mr. Stubchaer? 14 C.O. STUBCHAER: No Bay-Delta hearing. 15 C.O. CAFFREY: Right, to reiterate again, there will 16 be there will be no Bay-Delta hearing, per se, that day. 17 MR. BIRMINGHAM: All day? 18 C.O. CAFFREY: All day. It was only a half day 19 scheduled is the point. And I'm anticipating that with the 20 actual consideration of the 95-6 extension and the 21 commentary that we might get from each of the parties, for 22 the general record, we would use that half day for that 23 purpose alone. 24 Ms. Whitney? 25 MS. WHITNEY: There's also going to be -- CAPITOL REPORTERS (916) 923-5447 6643 1 C.O. CAFFREY: No, there's not. 2 MS. WHITNEY: Oh, there's not. What do I know? 3 C.O. CAFFREY: There's been a little bit of a change 4 in schedule and I didn't get a chance to tell you about 5 that. We are not going to do that thing which you 6 contemplated. 7 MS. WHITNEY: Okay. 8 C.O. CAFFREY: On that day, we will do it on another 9 day. All right, then. Any questions on that from the good 10 of the cause? Yes, Mr. Johnson? 11 MR. JOHNSON: Have you given any thought for January 12 dates? 13 C.O. CAFFREY: Yes. We do have some January dates 14 that I believe we're looking at internally. I saw some 15 dates that maybe the staff hasn't seen them yet. I think 16 Ms. Marche, the Board's Administrative Assistant, has been 17 providing us with some dates. And we do need -- we need to 18 practice our own due diligence and get those dates out to 19 you just as soon as we possibly can. 20 We'll be following up in the near future with 21 planned hearing dates for, at least, January and the 22 months -- and, perhaps, February as well. So, anything 23 else? All right, let's take about a 12-minute break. 24 Thank you. 25 (Recess taken from 10:32 a.m. to 10:47 a.m.) CAPITOL REPORTERS (916) 923-5447 6644 1 C.O. CAFFREY: All right. We're back on the record. 2 And Mr. O'Laughlin is about to cross-examine Mr. Ploss. 3 Good morning, sir. 4 MR. O'LAUGHLIN: Thank you, Chairman Caffrey. If the 5 Board will indulge me, I'm going to wear two hats today. 6 The initial cross-examination I will do is on behalf of 7 Oakdale and South San Joaquin Irrigation Districts. The 8 second cross-examination is a delineation and will be on 9 behalf of the San Joaquin River Group Authority. 10 C.O. CAFFREY: All right. Thank you, sir. You'll 11 tell us when one ends and the other begins? 12 MR. O'LAUGHLIN: Yes, I will. 13 C.O. CAFFREY: As long as things remain relevant, 14 there's really no time limit. 15 MR. O'LAUGHLIN: Correct. 16 C.O. CAFFREY: Thank you. 17 ---oOo--- 18 CROSS-EXAMINATION OF STOCKTON EAST WATER DISTRICT 19 BY OAKDALE AND SOUTH SAN JOAQUIN IRRIGATION DISTRICTS 20 BY TIM O'LAUGHLIN 21 MR. O'LAUGHLIN: Mr. Ploss -- Mr. Emrick, can you put 22 4-B up on the overhead, please. 23 Mr. Ploss, is it true in looking at 4-B that 24 the -- when they were planning the New Melones Project that 25 the historical hydrology that they looked at for CAPITOL REPORTERS (916) 923-5447 6645 1 determining the yield of New Melones was 1922 through 1938? 2 MR. PLOSS: That's correct. 3 MR. O'LAUGHLIN: Okay. And since that time, we had a 4 drought that took place in 1986 and ran to about 1992. Is 5 the significance of having on 4-B the time period 1986 6 through 1996 to show the new yield from the New Melones 7 Project? 8 MR. PLOSS: For the purposes of this exhibit we show 9 the 10-year period, which is from the time that New Melones 10 was relatively full to when it refilled again. 11 MR. O'LAUGHLIN: Okay. From 1987 to 1992 through, 12 for the planning purposes, is the Bureau using the new 13 drought scenario in that time period to determine yield of 14 the New Melones, or is it still relying upon the 1922 15 through 1938 time period to determine the yield of the 16 project? 17 MR. PLOSS: We're going through an effort now of 18 determining what the yield might be of New Melones. We 19 have not formally tried to carry out any studies to 20 redefine the yield. We recognize and acknowledge that if 21 you look at the most recent drought, it certainly doesn't 22 hold up to the earlier yield calculations. 23 MR. O'LAUGHLIN: Okay. Are you familiar with the 24 agreement between the Oakdale Irrigation District, the 25 South San Joaquin Irrigation District and the United States CAPITOL REPORTERS (916) 923-5447 6646 1 Bureau of Reclamation dated 1988? 2 MR. PLOSS: Generally, yes. 3 MR. O'LAUGHLIN: Okay. I just want to talk in 4 general terms. Isn't it generally true that that contract 5 provides that when the inflow exceeds 600,000 acre-feet 6 that the districts will be entitled to 600,000 acre-feet of 7 water from the Stanislaus River? 8 MR. PLOSS: That's correct. 9 MR. O'LAUGHLIN: Okay. And if the amount falls 10 below -- if the inflow falls below 600,000, generally, it's 11 the amount of inflow into New Melones that would be 12 allotted to the contract to Oakdale and South San Joaquin 13 Irrigation District; is that correct? 14 MR. PLOSS: They're allotted the inflow plus one 15 third the difference between 600,000 and the inflow. So it 16 assumes that there's some water coming out of storage. 17 MR. O'LAUGHLIN: Okay. Looking at Exhibit 4-B when 18 you were being asked questions by Board Member Brown last 19 week, would it be safe to say that in 1987, 1988, 1989, 20 1990, '91 and 92 that Oakdale Irrigation District and South 21 San Joaquin Irrigation District did not receive 600,000 22 acre-feet of water from the Stanislaus River? 23 MR. PLOSS: That is correct. 24 MR. O'LAUGHLIN: Okay. Now, looking -- you did not 25 come on to the CVP operations until 1993; is that correct? CAPITOL REPORTERS (916) 923-5447 6647 1 MR. PLOSS: That's correct. 2 MR. O'LAUGHLIN: Can you describe for me how 3 comfortable you would feel in describing New Melones 4 operations in either 1991 or 1992? 5 MR. PLOSS: I couldn't give you any specifics on 6 those operations. 7 MR. O'LAUGHLIN: So you're unaware of in 1991 an 8 agreement between the United States Bureau of Reclamation, 9 Oakdale Irrigation District, South San Joaquin Irrigation 10 District and WAPA for the conservation of water by the two 11 districts to allow water to remain in New Melones in order 12 to -- for power production by WAPA? 13 MR. PLOSS: No, I'm not aware of that. 14 MR. O'LAUGHLIN: Did you try to include -- if you 15 could put 4-C, Steve, up on the overhead, please. 16 Why don't we go to the first year, 1991. I know 17 you're not familiar with these years, Lowell, but we'll run 18 through them rather briefly rather than stick on them in 19 great detail. 20 Did you actually prepare this exhibit? 21 MR. PLOSS: It was done under my direction. 22 MR. O'LAUGHLIN: Okay. Who in your office did this 23 exhibit? 24 MR. PLOSS: I believe this was completed by David 25 Read, one of our hydrologists. CAPITOL REPORTERS (916) 923-5447 6648 1 MR. O'LAUGHLIN: Okay. So if this was a conservation 2 by the two districts of water in 1991 and water was left up 3 in storage pursuant to that agreement between WAPA and the 4 Bureau, did you ask to have that included or excluded from 5 that exhibit? 6 MR. PLOSS: This exhibit only shows the actual 7 releases that were made from New Melones for these 8 purposes. So this would be the deliveries that were made 9 to the two districts. It doesn't reflect any water held in 10 storage. 11 MR. O'LAUGHLIN: Okay. So even if the districts had 12 held water in storage in either their conservation account 13 or pursuant to an agreement by the Bureau to deliver water 14 at New Melones, that would not be reflected in this 15 exhibit; is that correct? 16 MR. PLOSS: Correct. We're not showing an accounting 17 of the conservation. 18 MR. O'LAUGHLIN: Okay. And, likewise, this exhibit 19 does not depict the amounts that the districts would be 20 entitled to in any given water year; is that correct? 21 MR. PLOSS: Only that if they're entitlement was 22 included in this delivery when this calculation was made, 23 but we didn't break out a separate calculation entitlement 24 versus delivery. 25 MR. O'LAUGHLIN: Is there a reason why you did this CAPITOL REPORTERS (916) 923-5447 6649 1 exhibit based on a calendar year rather than a water year? 2 MR. PLOSS: I don't believe there was any particular 3 reason for showing it that way, except that it does allow 4 us when we look at the fishery flows they correlate closer 5 to a calendar year than a water year. 6 MR. O'LAUGHLIN: Okay. Now, in 1994 the exhibit 7 depicts that a transfer was made to the United States 8 Bureau of Reclamation by Oakdale and South San Joaquin 9 Irrigation District; is that correct? 10 MR. PLOSS: That's correct. 11 MR. O'LAUGHLIN: Okay. Can you tell us how much that 12 transferred amount was? 13 MR. PLOSS: Not off of there. It looks like it was 14 around 30,000. It's on another exhibit, I believe. That's 15 shown on another exhibit that I believe you have there. 16 MR. O'LAUGHLIN: 4-H? 17 MR. PLOSS: Exhibit 4-H. And that shows under column 18 8, which is CVPIA Section B-3 for 1994, shows an amount of 19 37,100 acre-feet. 20 MR. O'LAUGHLIN: Okay. And since the exhibit is in 21 calendar years, the next year in 1995 the districts 22 transferred an additional 12,200 acre-feet; is that 23 correct? 24 MR. PLOSS: That is correct. 25 MR. O'LAUGHLIN: If we could go back to 4-C, Steve, CAPITOL REPORTERS (916) 923-5447 6650 1 please. Now, in 1997 there is another transfer by OID and 2 SSJID to the United States Bureau of Reclamation; is that 3 correct? 4 MR. PLOSS: That's correct. 5 MR. O'LAUGHLIN: And what is the amount of that 6 transfer? 7 MR. PLOSS: That was for 50,000 acre-feet. 8 MR. O'LAUGHLIN: Would you say that that transfer was 9 instrumental in allowing the Interim Operations Plan to go 10 forward? 11 MR. PLOSS: It was integral in the -- I believe in 12 the stakeholders reaching an agreement on the Interim 13 Operations Plan that certain things would take place, one 14 of those being this transfer of water, yes. 15 MR. O'LAUGHLIN: Okay. And why was it integral to 16 allowing the Interim Operations Plan to go forward in your 17 opinion? 18 MR. PLOSS: It took away some of the uncertainties. 19 It allowed for a firming up of the fishery flows, which 20 were important to the Stanislaus River. It helped support 21 the operation for water quality and also to assure 22 deliveries to CVP contractors. 23 MR. O'LAUGHLIN: Mr. Emrick, could you put up 4-H, 24 please. 25 Mr. Ploss, looking at Exhibit 4-H, is this also CAPITOL REPORTERS (916) 923-5447 6651 1 done on a calendar year, or is this done on a water year? 2 MR. PLOSS: There is also on a calendar year. 3 MR. O'LAUGHLIN: So it's from January 1st through 4 December 31st; is that correct? 5 MR. PLOSS: That's correct. 6 MR. O'LAUGHLIN: Okay. Looking at the second column 7 it says, "End of year in New Melones storage." And then it 8 has the numbers listed there, I'm presuming in thousands of 9 acre-feet, correct? 10 MR. PLOSS: Correct. 11 MR. O'LAUGHLIN: Okay. In 1991, on December 31st 12 there was 317,000 acre-feet of carryover storage in New 13 Melones? 14 MR. PLOSS: That's correct. 15 MR. O'LAUGHLIN: Okay. And then in 1992 there was 16 115,000 acre-feet of carryover storage in New Melones? 17 MR. PLOSS: That is correct. 18 MR. O'LAUGHLIN: Okay. During the drought what was 19 the lowest amount of storage in New Melones at any given 20 time, if you know? 21 MR. PLOSS: I believe New Melones got down to 22 approximately 80,000 acre-feet. 23 MR. O'LAUGHLIN: Now, do you know how much of the 24 water that was in the storage in either 1991 or 1992 was 25 Oakdale Irrigation District, or South San Joaquin CAPITOL REPORTERS (916) 923-5447 6652 1 Irrigation District's conservation account? 2 MR. PLOSS: I'm not certain of those figures. I 3 believe this period may have started with approximately 4 200,000 acre-feet in the conservation account. 5 MR. O'LAUGHLIN: Okay. And so if we look at -- do 6 you remember when you came on in -- one of the first 7 letters to greet you probably when you come on the CVP 8 operations was a letter from Oakdale Irrigation District 9 and South San Joaquin Irrigation District to the Bureau 10 asking them how they were going to make conservation water 11 available from the conservation account in 1992 that had 12 approximately 184,000 acre-feet of water in the 13 conservation account for New Melones when they had a 14 carryover storage at the end of September of 80,000 15 acre-feet? 16 MR. PLOSS: I don't recall that letter. It may have 17 come in before I joined the office. 18 MR. O'LAUGHLIN: Did Oakdale Irrigation District and 19 South San Joaquin Irrigation District participate in the 20 planning and implementation of the Interim Operations Plan? 21 MR. PLOSS: Yes, they did. 22 MR. O'LAUGHLIN: And did Oakdale and South San 23 Joaquin Irrigation District participate in the planning and 24 implementation of the Interim Operations Plan? 25 MR. PLOSS: Yes, they did. CAPITOL REPORTERS (916) 923-5447 6653 1 MR. O'LAUGHLIN: And are Oakdale Irrigation District 2 and South San Joaquin Irrigation Districts participating in 3 reaching a consensus on a long-term operation plan on New 4 Melones? 5 MR. PLOSS: Yes, they are. 6 MR. O'LAUGHLIN: And you are aware that Oakdale 7 Irrigation District and South San Joaquin Irrigation 8 District presently have in a contract form, though the CEQA 9 documentation is not complete, a contract to deliver 10 transfer water to Stockton East Water District; is that 11 correct? 12 MR. PLOSS: Yes, that process is underway. 13 MR. O'LAUGHLIN: Okay. And you've been provided with 14 initial CEQA documentation, the Bureau of Reclamation has 15 been provided with initial CEQA documents on that transfer; 16 is that correct? 17 MR. PLOSS: There's been documents provided, I 18 haven't personally reviewed it. 19 MR. O'LAUGHLIN: Okay. Now, you're also aware that 20 South San Joaquin Irrigation District is in the process of 21 implementing a water treatment plant for the delivery and 22 treatment of surface waters to cities in and around San 23 Joaquin County; is that correct? 24 MR. PLOSS: I'm aware of that. I don't know the 25 specifics, but I'm aware of that, yes. CAPITOL REPORTERS (916) 923-5447 6654 1 MR. O'LAUGHLIN: And you've been informed of those 2 processes through the Stanislaus stakeholders' process; is 3 that correct? 4 MR. PLOSS: Yes. 5 MR. O'LAUGHLIN: Okay. 6 C.O. STUBCHAER: Mr. Chairman? 7 C.O. CAFFREY: Mr. Brown, you have a question, sir? 8 C.O. STUBCHAER: Are you also going to put into the 9 record, Mr. O'Laughlin, the efforts of the two districts -- 10 THE AUDIENCE: I don't think your mic is on, sir. 11 C.O. STUBCHAER: Are you also going to put into the 12 record the efforts of the two districts in their 13 cooperation with Stockton East Water District in trying to 14 provide some water for their purposes, too? Haven't they 15 been doing that, the two districts? 16 MR. O'LAUGHLIN: Is that a -- I feel -- 17 C.O. STUBCHAER: Let's see if he knows anything about 18 it. 19 MR. O'LAUGHLIN: Well, I can ask it this way: Isn't 20 it true that as part of the Interim Operations Plan when 21 the 50,000 acre-feet was transferred to the Bureau that 22 allowed water to be made available to Stockton East under 23 that two-year plan; is that correct? 24 MR. PLOSS: That's correct. Under the Interim 25 Operations Plan we determined what quantity could be CAPITOL REPORTERS (916) 923-5447 6655 1 available for delivery to the two CVP contractors through 2 the stakeholder process. In fact, the contractors agreed 3 to take a lesser amount in 1986 so -- 4 MR. O'LAUGHLIN: '96? 5 MR. PLOSS: Or '96, excuse me, so they could have a 6 similar amount in '97. And through that stakeholder 7 process there was also the water acquisition from Oakdale 8 and South San Joaquin to provide water back to the Bureau 9 under the B-3. 10 MR. O'LAUGHLIN: Right. And in actuality the 50,000 11 acre-feet of water that Stockton East received was 12 indirectly the 50,000 acre-feet of water that was 13 transferred to the Bureau? 14 MR. PLOSS: The quantities are the same. 15 MR. O'LAUGHLIN: Are the same, right. 16 MR. PLOSS: It wasn't a direct transfer from the 17 district. 18 MR. O'LAUGHLIN: That is correct, because under 19 CVPIA the water has to be used for environmental purposes? 20 MR. PLOSS: That is correct. 21 MR. O'LAUGHLIN: Okay. The -- I don't have -- I have 22 no other questions for either Oakdale Irrigation District 23 or South San Joaquin Irrigation District. Okay. Now I'm 24 going to switch gears and go on to the San Joaquin River 25 Authority. CAPITOL REPORTERS (916) 923-5447 6656 1 C.O. CAFFREY: Thank you, Mr. O'Laughlin. 2 ---oOo--- 3 CROSS-EXAMINATION OF STOCKTON EAST WATER DISTRICT 4 BY THE SAN JOAQUIN RIVER AUTHORITY 5 BY TIM O'LAUGHLIN 6 MR. O'LAUGHLIN: Mr. Ploss, is the United States 7 Bureau of Reclamation in the process of implementing a 8 long-term operation plan for the New Melones? 9 MR. PLOSS: Yes, we are. 10 MR. O'LAUGHLIN: Now, isn't it true that one of the 11 key components of trying to implement a long-term operation 12 plan is to develop a temperature model for New Melones, 13 Tulloch Reservoir and the Stanislaus River downstream of 14 Tulloch Reservoir? 15 MR. PLOSS: Yes. The effort is to develop a 16 temperature model that can be used to assist in the 17 operations of the project, yes. 18 MR. O'LAUGHLIN: Okay. And isn't it true that as 19 part of the permit conditions that were imposed on the New 20 Melones Project that a temperature model would be developed 21 as part of its permitting conditions? 22 MR. PLOSS: That is correct. 23 MR. O'LAUGHLIN: Okay. And presently right now is it 24 your understanding that Oakdale Irrigation District has 25 taken the lead in implementing a temperature model with CAPITOL REPORTERS (916) 923-5447 6657 1 funding from the California Department of Fish and Game, 2 the United States Fish and Wildlife Service, the United 3 States Bureau of Reclamation, Stockton East Water District, 4 South San Joaquin Irrigation District and Oakdale 5 Irrigation District? 6 MR. PLOSS: That is correct. 7 MR. O'LAUGHLIN: Okay. And isn't it true that we 8 hope to have a temperature model in place within the coming 9 year? 10 MR. PLOSS: That's our expectation, yes. 11 MR. O'LAUGHLIN: Okay. And that hopefully if the 12 temperature model is completed and done that will provide 13 the stakeholders to the Stanislaus process the factual 14 foundation in order to start making determinations about 15 amounts of water needed for instream beneficial uses; is 16 that correct? 17 MR. PLOSS: That is correct. That model will not 18 only help us in developing a long-term operation plan but 19 it will also be used to support our daily operation 20 decisions. 21 MR. O'LAUGHLIN: Okay. The other part that's ongoing 22 that the stakeholders thought was important was to have a 23 conjunctive-use plan and model in place; is that correct? 24 MR. PLOSS: That is correct. 25 MR. O'LAUGHLIN: Okay. And there's a belief among CAPITOL REPORTERS (916) 923-5447 6658 1 the stakeholders, isn't it true, that in order to maximize 2 the beneficial uses of water from the Stanislaus River it 3 would be necessary to have a conjunctive-use plan in place; 4 is that correct? 5 MR. PLOSS: That is correct. When we look at the 6 water supply conditions under the most recent drought, I 7 believe most parties recognize that they cannot totally 8 rely on New Melones Reservoir for water supply and need to 9 look at other sources such as conjunctive use. 10 MR. O'LAUGHLIN: Okay. And the process to have a 11 conjunctive-use model in place is ongoing and we hope to 12 have that completed within the coming year; is that 13 correct? 14 MR. PLOSS: That is our expectation, yes. 15 MR. O'LAUGHLIN: Okay. Now, in the San Joaquin River 16 Agreement is it your understanding that if the stakeholders 17 to the Stanislaus process come to consensus about a 18 long-term operations plan, that nothing within the San 19 Joaquin River Agreement prohibits a long-term operation 20 plan from being implemented on the Stanislaus River? 21 MR. PLOSS: That is correct. The Interim Operations 22 Plan was used as the Stanislaus River baseline for study 23 purposes for the San Joaquin -- for the San Joaquin River 24 Agreement. And the agreement recognizes that long-term 25 processes are underway and that the operation plan for New CAPITOL REPORTERS (916) 923-5447 6659 1 Melones may change. 2 MR. O'LAUGHLIN: Right. And the Bureau, my 3 understanding, has committed to funding a long-term 4 operation plan through the year 2002; is that correct? 5 MR. PLOSS: That is correct. We're commencing this 6 year. 7 MR. O'LAUGHLIN: So there's no -- there's no hidden 8 agenda here in regards to when people say that the Interim 9 Operations Plan is locked in place in the San Joaquin River 10 Agreement, based on what the Bureau and the Stanislaus 11 stakeholders are trying to do that would be an incorrect 12 statement, is that correct? 13 MR. PLOSS: That is correct. 14 MR. O'LAUGHLIN: Now, when -- let's go through a 15 process here. When the long-term operation plan is agreed 16 to by the stakeholders, is it the United States Bureau of 17 Reclamation's intent at that time to then come back to the 18 State Water Resources Control Board in regards to its 19 permits on the New Melones Project? 20 MR. PLOSS: If it's determined that the long-term 21 operation plan for New Melones will require changes in our 22 permits we will come back to the State Board, that's 23 correct. 24 MR. O'LAUGHLIN: Okay. And isn't it true that, also, 25 in regard to the long-term operation plan for New Melones CAPITOL REPORTERS (916) 923-5447 6660 1 that the United States Bureau of Reclamation as a signatory 2 to the San Joaquin River Agreement would keep the parties 3 to that agreement informed of what is going on in 4 participating in that process so that if a long-term 5 operation plan is approved by the stakeholders on the 6 Stanislaus River that would then be adopted and 7 incorporated into the San Joaquin River Agreement; is that 8 correct? 9 MR. PLOSS: Basically correct. The interim plan for 10 New Melones was used as the baseline assumption for the 11 Stanislaus River. If the long-term operation plan for New 12 Melones modifies that baseline condition, then the parties 13 to the San Joaquin River Agreement would review that and 14 determine if any action had to be taken. 15 MR. O'LAUGHLIN: And/or other operational changes 16 be -- 17 MR. PLOSS: Or changes, that's correct. 18 MR. O'LAUGHLIN: I have no further questions, 19 Mr. Chairman. Thank you, Board Members. 20 C.O. CAFFREY: Thank you, Mr. O'Laughlin. 21 Let's see, next we have Mr. Gallery and after that 22 Mr. Hasencamp and Mr. Jackson were the names that we have. 23 Good morning, Mr. Gallery. 24 // 25 // CAPITOL REPORTERS (916) 923-5447 6661 1 ---oOo--- 2 CROSS-EXAMINATION OF STOCKTON EAST WATER DISTRICT 3 BY TUOLUMNE UTILITIES DISTRICT 4 BY DAN GALLERY 5 MR. GALLERY: Good morning, Mr. Chairman, Mr. Ploss. 6 Mr. Chairman, I'm representing Tuolumne Utilities District 7 here today. And my district is a contract hopeful for some 8 New Melones water, although we are not one of the current 9 CVP contractors. 10 Mr. Ploss, just following up on a couple of the 11 questions of Mr. O'Laughlin, do I understand that the 12 Bureau has just recently funded the studying of a long-term 13 operation plan? Has something occurred within the last two 14 or three months in that regard? 15 MR. PLOSS: That's correct. We have been fortunate 16 in obtaining funding to begin the studies this current 17 fiscal year which started October 1. And we're underway of 18 developing a scope of work for those studies now. 19 MR. GALLERY: Next I wanted to back up to Central 20 Delta Water Agency's 23, which Mr. Nomellini presented this 21 morning in which you discussed briefly it provides for the 22 release of water under the 1987 Agreement with the 23 Department of Fish and Game. And which on Page 3 says, 24 (Reading): 25 "That the maximum annual supply for fishery CAPITOL REPORTERS (916) 923-5447 6662 1 instream flow shall be 302,100." That's the 2 maximum. "And the minimum shall be 98,300." 3 And I want to direct your attention up to 4 Paragraph 2 toward the top of that page. And the sentence 5 which reads, 6 (Reading): 7 "Each year the Bureau shall compute the supply 8 available for annual fishery inflow releases 9 using the procedure prescribed in Exhibit C." 10 So the actual calculation of the amount under that 11 agreement between 98 and 302,000 is utilized in Exhibit C, 12 is that your understanding? 13 MR. PLOSS: Yes. 14 MR. GALLERY: And then if you turn to Exhibit C, it 15 says in Paragraph 1, 16 (Reading): 17 "This exhibit defines the equation used to 18 compute the supply available for annual instream 19 flow releases." 20 And then it sets up the -- defines the different 21 things that go into the equation. And Paragraph 2B says, 22 (Reading): 23 "SAAIF is the label that represents the supply 24 available for annual instream flow releases in 25 acre-feet by month." CAPITOL REPORTERS (916) 923-5447 6663 1 Do you see that? 2 MR. PLOSS: Yes. 3 MR. GALLERY: And then down to Subparagraph 2G it 4 defines another element in the equation, PCWB, which is the 5 Projected Contract CVP River Water Demands, projected 6 contracted CVP Stanislaus River water demands, which I take 7 to mean the amount of water that the contractors project 8 they need that year? 9 MR. PLOSS: I will admit that I'm not that familiar 10 with this exhibit. I believe this was some of the modeling 11 effort that was done for the planning of this agreement. 12 And to the degree that this exhibit is applied today, I'm 13 not certain. 14 MR. GALLERY: I see. What I wanted to come down to 15 was Paragraph 3 on the last page. It says, 16 (Reading): 17 "The following equation shall be used to compute 18 the supply available for instream flow 19 releases." 20 And in the equation the projected contract water 21 demands of the contractors are shown as a minus, or a 22 subtract in determining the amounts available for fish 23 releases. Do you follow that? 24 MR. PLOSS: Correct. Yes. 25 MR. GALLERY: Do you have any understanding of CAPITOL REPORTERS (916) 923-5447 6664 1 whether that -- the equation that the amount that is 2 released for fish releases under this '87 Agreement has 3 subtracted the contractor water demands in making the 4 determination of fish release available? 5 MR. PLOSS: This calculation would be applied in a 6 manner looking at the annual inflow to the reservoir plus 7 carryover storage, then subtracting all factors for all 8 purposes for water including delivery to contractors. And 9 the remaining water, then, would be what's available for 10 instream flows. So it does subtract deliveries to 11 contractors from inflow plus storage. 12 MR. GALLERY: I'd like to put on the overhead 13 Department of Interior Exhibit 4-E, which is from the 14 sequence of allocations under the Interim Operations Plan? 15 MR. PLOSS: Correct. 16 MR. GALLERY: And on that you show that CVP 17 contractors come fourth in priority, you might say, as 18 opposed to fishery releases which come first. So how can I 19 reconcile that to this formula in the '87 Agreement which 20 seems to allocate the water to the CVP contractors before 21 making fishery releases under the '87 Agreement? 22 MR. PLOSS: In developing the Interim Operation Plan, 23 which is the basis for this particular table, we looked 24 at -- and how we interpret the operations is that the 25 conditions of the permits, conditions of federal CAPITOL REPORTERS (916) 923-5447 6665 1 regulations need to be met prior to delivery of water to 2 contractors. That's our interpretation. 3 MR. GALLERY: So that when you say "federal 4 regulations," are you referring to the CVPIA fish releases? 5 MR. PLOSS: The Fish and Game Agreement and the CVPIA 6 requirements, the latter one being the federal statute, 7 needs to be complied with prior to delivery to contractors, 8 yes. 9 MR. GALLERY: Well, would you agree with me that just 10 from your brief examination of the equation that under the 11 '87 Agreement releases to contractors should come ahead of 12 releases for fishery? 13 MR. PLOSS: That's what this equation indicates, 14 correct. 15 MR. GALLERY: Mr. Ploss, I next want to direct your 16 attention to Stockton East Exhibit 18, which is Public Law 17 87-874, which authorized the New Melones Project in 1962. 18 C.O. CAFFREY: How are we going to treat this, 19 Mr. Gallery, are you proposing this as a cross-examination 20 exhibit, or is it in the record? 21 MR. GALLERY: Actually, it's in the record as 22 Stockton Exhibit 18, Mr. Chairman. 23 C.O. CAFFREY: Thank you, sir. 24 MR. GALLERY: And I have on the overhead Page 1 of 25 the Act. Mr. Ploss, you probably read the legislation that CAPITOL REPORTERS (916) 923-5447 6666 1 authorized the New Melones Project? 2 MR. PLOSS: Yes. 3 MS. WHITNEY: Excuse me, is this City of Stockton 4 Exhibit 18, or Stockton East Water District? 5 MR. GALLERY: I'm sorry. It's Stockton East Water 6 District's Exhibit 18. 7 C.O. CAFFREY: Thank you, Ms. Whitney. 8 MR. GALLERY: Now, looking at the Act, Mr. Ploss, if 9 we read through the purposes of the project on Page 1 it 10 recites that the New Melones Project is -- which was 11 authorized in 1944, 12 (Reading): 13 "Is hereby modified in accordance with the 14 recommendations of chief engineer's in-house 15 document 453 at a cost of 113 million." 16 And then, 17 (Reading): 18 "That upon completion of the dam and power plant 19 by the Corps the project shall become a part of 20 Central Valley Project and maintained by the 21 Secretary of Interior pursuant to federal 22 regulation law, except that flood control shall 23 be prescribed by the Secretary of the Army." 24 And the next provided is, 25 (Reading): CAPITOL REPORTERS (916) 923-5447 6667 1 "That the river channel shall be maintained by 2 the Secretary of the Army of at least 8,000 3 cubic-feet per second if local interest agree to 4 maintain the levees." 5 And then coming to the next provided, 6 (Reading): 7 "Before initiating any diversions of water from 8 the central -- from the Stanislaus River basin 9 in connection with the operation of the CVP the 10 Secretary of the Interior shall determine the 11 quantity of water required to satisfy all 12 existing and anticipated future needs within 13 that basin. And the diversions shall at all 14 times be subject subordinate to the quantities 15 so determined." 16 Which means, I guess, that diversions outside of 17 the Stanislaus River basin shall be subordinate to 18 diversions within the basin. Do you read it that way? 19 MR. PLOSS: I believe so, yes. 20 MR. GALLERY: And then the next provided said, 21 (Reading): 22 "That the Secretary of the Army shall adopt 23 appropriate measures to ensure the preservation 24 of propagation of Fish and Wildlife under the 25 1946 Act." CAPITOL REPORTERS (916) 923-5447 6668 1 So we have -- to this point we have two purposes 2 of the project: One, to provide some water first to users 3 within the basin and then to users outside of the basin. 4 And then next that the project is to provide some fish 5 water as provided under the Act referred to. Next provided 6 is that, 7 (Reading): 8 "Secretary of the Army shall provide recreation 9 facilities." 10 And those are at the Melones' Project, are they 11 not? 12 MR. PLOSS: That is correct. 13 MR. GALLERY: Next provided says that, 14 (Reading): 15 "Contracts for the sale and delivery of electric 16 energy in the project shall be made." 17 And they provide for a first preference to the two 18 counties of Tuolumne and Calaveras for 25 percent of the 19 energy. And that's been done; is that correct, according 20 to your understanding? 21 MR. PLOSS: That is correct. 22 MR. GALLERY: And then finally in the last proviso, 23 it says that, 24 (Reading): 25 "The Secretary of the Army shall give CAPITOL REPORTERS (916) 923-5447 6669 1 consideration during preconstruction planning 2 for the project to the advisability of including 3 storage for the regulation of stream flow for 4 the purpose of downstream water quality 5 control." 6 And so here congress didn't specify any amount or 7 anything. It really left that up to the Secretary of the 8 Army to decide on water quality; isn't that correct? 9 MR. BRANDT: Objection. Calls for legal conclusion. 10 MR. GALLERY: I'm sorry. I didn't -- I didn't put 11 Page 2 up on the overhead. My apology, Mr. Chairman. 12 Well, I would ask Mr. Ploss as the head of CVP 13 operations if he doesn't read the last provided to simply 14 mean on its face that it was up to the Secretary of the 15 Army to decide to what extent water quality control would 16 be a part of the project purpose. 17 MR. PLOSS: When congress put language in this, in an 18 authorizing act, the agencies have to determine how to 19 carry out those provisions. I really can't interpret how 20 this was responded to except to the facts that a study was 21 carried out, recommendations were made and the project was 22 authorized to include water quality. 23 MR. GALLERY: And are you familiar with, Mr. Ploss, 24 the determination which was made by the Secretary of the 25 Army to provide water for water quality control? CAPITOL REPORTERS (916) 923-5447 6670 1 MR. PLOSS: I'm aware of the study that was carried 2 out by the Bureau of Reclamation, the Public Health Service 3 and the recommendation that was made to the Secretary of 4 the Army. I'm not familiar with what the ultimate 5 determination by the Secretary of the Army was. 6 MR. GALLERY: All right. I'd like to hand you a copy 7 of Stockton East Water District Exhibit 19 which is 8 entitled, "Design Memorandum Number 5, New Melones Project 9 Water Quality Control." And it's by the U.S. Army Engineer 10 District, Corps of Engineers. 11 And direct your attention to Attachment Number 2, 12 which is under the last yellow tab, Mr. Ploss. Attachment 13 Number 2 is a March 1965 agreement that is Stockton Exhibit 14 19-A, which Ms. Harrigfeld asked you about in her 15 examination. 16 MR. PLOSS: This is a letter -- it's not an 17 agreement. This is a letter from the Regional Director of 18 the Bureau of Reclamation in Sacramento to the District 19 Engineer for the U.S. Army Engineer District, Corps of 20 Engineers in Sacramento. 21 MR. GALLERY: Yes. And then directing your attention 22 to Page 2, the bottom paragraph that reads -- and this 23 letter is from the Regional Director of the Bureau that 24 reads, 25 (Reading): CAPITOL REPORTERS (916) 923-5447 6671 1 "Accordingly, I recommend that the following 2 water quality objectives be incorporated into 3 the New Melones Unit. These objectives will not 4 require releases exceeding 70,000 acre-feet in 5 any one year shown on the public health service 6 report to try to achieve the objectives of 500 7 parts per million TDS." 8 MR. BRANDT: Objection. Asked and answered. 9 MR. GALLERY: By? 10 C.O. CAFFREY: Of this witness. 11 MR. BRANDT: Yeah, of this witness. 12 C.O. CAFFREY: I'm sorry, I didn't hear. 13 MR. BRANDT: We went through this through Stockton 14 East's testimony, the exact question. 15 C.O. CAFFREY: Do you agree -- I'm sorry. I was 16 talking over you. You had the floor. 17 MR. BRANDT: That's okay. 18 C.O. CAFFREY: Do you agree that this has been asked 19 and answered, Mr. Gallery? 20 MR. GALLERY: I agree that it has asked and answered 21 by another attorney for Stockton East Water District, 22 Mr. Chairman, but I was trying to make a point about the 23 exhibit myself. 24 C.O. CAFFREY: So you're trying to make a different 25 point? CAPITOL REPORTERS (916) 923-5447 6672 1 MR. GALLERY: A different point, yes. 2 C.O. CAFFREY: All right. Please, go ahead. 3 MR. GALLERY: So that -- 4 C.O. CAFFREY: I'm sorry, Mr. Gallery. On a somewhat 5 related point, how much time do you think you're going to 6 need? We're going to break a little bit early today and at 7 a slightly different schedule here. So how much time do 8 you think you'll need? 9 MR. GALLERY: I'm sure I'll have another 30, or 40 10 minutes. I'm sure I won't be able to finish before the end 11 of -- 12 C.O. CAFFREY: All right. Why don't we do this: 13 Let's break now. We have a couple things we have to deal 14 with today. Let's break now and come back at 1:00 o'clock 15 and take an hour-and-a-half lunch. And we'll resume with 16 you at 1:00, Mr. Gallery. Thank you, sir. 17 (Luncheon recess.) 18 ---oOo--- 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 6673 1 TUESDAY, NOVEMBER 17, 1998, 1:07 P.M. 2 SACRAMENTO, CALIFORNIA 3 ---oOo--- 4 C.O. CAFFREY: Welcome back. And Mr. Gallery was 5 cross-examining. 6 MR. GALLERY: Yes. 7 C.O. CAFFREY: And, please, continue, Mr. Gallery. 8 MR. GALLERY: Thank you. 9 C.O. CAFFREY: You need the screen? 10 MR. GALLERY: Yes, thank you. 11 ---oOo--- 12 CROSS-EXAMINATION OF STOCKTON EAST WATER DISTRICT (Cont'd) 13 BY TUOLUMNE UTILITIES DISTRICT 14 BY DANIEL GALLERY 15 MR. GALLERY: Where we left off, Mr. Ploss, before 16 lunch was we had just noted that the proviso in the Act 17 authorizing the New Melones Project directed the Secretary 18 of the Army to determine what water quality flows should be 19 provided by the project. And we had noted in Stockton East 20 Exhibit 19, Attachment 2, that the Bureau had recommended 21 to the Corps that there be a -- water quality releases of 22 up to 70,000 acre-feet. Do you recall that? 23 MR. PLOSS: Yes. 24 MR. GALLERY: And then I wanted to direct your 25 attention to the forepart of Stockton East Exhibit 19 in CAPITOL REPORTERS (916) 923-5447 6674 1 which the district engineer of the Corps made his 2 recommendation as to water quality releases. 3 It's on Page 10, first small tab. And do you see 4 there that the district engineer recommended that water 5 quality control be included as a project purpose in 6 Paragraph 15-A? 7 MR. PLOSS: That's correct. 8 MR. GALLERY: And that in Subparagraph 15-B he said 9 that the objectives to be established should be 500 parts 10 per million TDS at immediately below the mouth of the 11 Stanislaus River and also dissolved oxygen concentration of 12 at least 5 milligrams per liter? 13 MR. PLOSS: That's correct. 14 MR. GALLERY: And then finally in Subparagraph C, his 15 recommendation was that releases from New Melones for water 16 quality purposes are to be made as necessary to maintain 17 the objectives but not in excess of 70,000 acre-feet in any 18 one year. So the District engineer came to the same 19 conclusion as the Regional Director of the Bureau did; is 20 that correct? 21 MR. PLOSS: That appears to be the case, yes. 22 MR. GALLERY: And his Design Memorandum Number 5 in 23 which that was made is dated June 1965, which is about 24 three months after the Bureau's recommendation to the 25 district engineer? CAPITOL REPORTERS (916) 923-5447 6675 1 MR. PLOSS: Yes. 2 MR. GALLERY: That insofar as congress directed a 3 water quality decision be made it was to be made by the 4 district engineer; is that correct? 5 MR. PLOSS: That's correct. 6 MR. GALLERY: And his recommendation was not to 7 exceed 70,000 acre-feet per year, do you agree with that? 8 MR. PLOSS: Yes. Yes, the legislation was the 9 Secretary of the Army. 10 MR. GALLERY: I'm sorry, the Secretary of the Army. 11 Now, when you read the statute that authorized the New 12 Melones Project, and it provided for deliveries of water to 13 in-basin users in the fourth proviso, do you recall that? 14 MR. PLOSS: Yes. 15 MR. GALLERY: Was to have a precedence over 16 out-of-basin users. And then it went on to authorize fish 17 releases, power generation and finally for water quality as 18 determined by the Secretary of the Army. 19 Would you agree that reading those four purposes 20 of the project that, first, congress clearly intended that 21 in-basin users, users within the Stanislaus River basin get 22 some water from the project, would you agree with that? 23 MR. PLOSS: Yes. 24 MR. GALLERY: And would you agree that with the 25 directive to the Secretary of the Army as the last purpose CAPITOL REPORTERS (916) 923-5447 6676 1 that congress would not have intended that water quality 2 control would ever supersede delivery of water to in-basin 3 users? 4 MR. PLOSS: I can't make that judgment on the 5 legislation of what was given priority. 6 MR. GALLERY: Well, now, as director of Central 7 Valley Project operations, if this issue came up that it 8 was a question between -- just within the framework of this 9 statute, if this issue came up on your desk there's not 10 enough water for the water quality releases and to also 11 deliver water to some in-basin users, wouldn't you conclude 12 by reading the statute that, certainly, in-basin users were 13 intended to get some water? 14 MR. BRANDT: Objection. Calls for a legal 15 conclusion. 16 MR. GALLERY: Yes. But, Mr. Ploss, as the director 17 of operations in the Central Valley Project, would you say: 18 I'm helpless to decide this and I have to go talk to my 19 lawyers, or could you make that decision yourself? 20 C.O. CAFFREY: Is that an appeal to me for the 21 strength of your question, Mr. Gallery, over his objection, 22 because you addressed it to him? 23 MR. GALLERY: Yes. 24 C.O. CAFFREY: I haven't dealt with the objection 25 yet. I'll repeat what I said a number of times, I don't CAPITOL REPORTERS (916) 923-5447 6677 1 think that I said it when you were here, Mr. Ploss, but 2 there's not always a clear line between legal and 3 engineering and some of the other things that the people in 4 the -- professionals in the water business do. And so I've 5 been reluctant to tell people they can't answer a question 6 that somebody may object to as calling for a legal 7 conclusion. 8 Do you feel comfortable with the question? Do you 9 have an answer for it? 10 MR. PLOSS: I have an answer, yes. 11 C.O. CAFFREY: Please, go ahead, sir. 12 MR. PLOSS: My role in directing the operations of 13 the Central Valley Project is to try and balance the needs 14 for the project with the resources available. If there's a 15 question about legal requirements, or limitations on how we 16 operate the project, I leave that to our policy makers and 17 our legal service to give us that advice. We try to do the 18 best that we can in balancing the resource. As we go 19 through, as I believe the record would show, 1986 through 20 about 1992 the condition you described is what took place. 21 There was insufficient water in the Stanislaus 22 River basin to meet all the obligations for the New Melones 23 Project and great efforts were taken by the Bureau of 24 Reclamation to meet with those people that relied on New 25 Melones River for their water supply and fishery benefits CAPITOL REPORTERS (916) 923-5447 6678 1 and water quality to try to balance the operations to try 2 to provide the best benefits that we could. So we at that 3 time did not take a position that one purpose had priority 4 over another and would get all the water. 5 MR. GALLERY: Do you -- well, you weren't director of 6 operations at that time, but are you aware, Mr. Ploss, that 7 the only two CVP contractors at that time were Stockton 8 East Water District and Central? 9 MR. PLOSS: That's correct. And neither one were 10 online at the time to divert water. 11 MR. GALLERY: Tuolumne Utilities District was not a 12 contractor at that time? 13 MR. PLOSS: That's correct. 14 MR. GALLERY: I'd like to direct your attention to 15 Department of Interior Exhibit 4-G. And that's a general 16 information table on the project. Thank you, Mr. Brandt. 17 And down in the second rectangle from the bottom 18 it says, "CVP Contractor Deliveries." Do you see that? 19 MR. PLOSS: Yes, I do. 20 MR. GALLERY: And it states in there that in the 21 second line down that the number of years greater than or 22 equal to 15,000 acre-feet is 40; is that correct? 23 MR. PLOSS: That's correct. 24 MR. GALLERY: Now, is this -- do I correctly read 25 this to mean that this is the water that would be provided CAPITOL REPORTERS (916) 923-5447 6679 1 to CVP contractors over a 71-year study period, is that 2 what this is from? 3 MR. PLOSS: This is the result of a 70-year study 4 that we did on New Melones operations leading up to the 5 Interim Operations Plan. And this table summarizes the 6 results of the study. And based on the assumptions that we 7 used in the study, the model run portrayed that we would be 8 able to in 40 years provide 15,000 acre-feet or more of 9 water. 10 MR. GALLERY: And so 40 years out of 71 years, that 11 quantity of water would be provided to CVP contractors? 12 MR. PLOSS: Yes. 13 MR. GALLERY: If you turn over to the CVP Exhibit 14 4-I, would you possibly have that also, Mr. Brandt? Will 15 you put it up? 16 MR. PLOSS: We don't have an overhead for it. 17 MR. GALLERY: All right. Looking at U.S. Department 18 of Interior 4-I, the third column is entitled "CVP 19 Deliveries." 20 MR. PLOSS: Yes. 21 MR. GALLERY: In acre-feet. And I count down that 22 column and I get 26 years of 0. Does that sound about 23 right to you? 24 MR. PLOSS: Maybe approximately correct, yes. 25 MR. GALLERY: All right. And then I get 4 years of CAPITOL REPORTERS (916) 923-5447 6680 1 less than 15,000 acre-feet. 2 MR. PLOSS: Yes. 3 MR. GALLERY: So that from this table one would 4 conclude that in 26 years CVP contractors would get no 5 water out of the -- CVP contracts would get no water out of 6 New Melones 26 out of 71 years, correct? 7 MR. PLOSS: That's correct under the assumptions used 8 for this study. 9 MR. GALLERY: And then another four years the 10 contractors would get something less than 15,000? 11 MR. PLOSS: That's correct. 12 MR. GALLERY: And, again, at the present time the 13 only CVP contractors on line for Melones' water is Stockton 14 East Water District and Central San Joaquin Water 15 Conservation District? 16 MR. PLOSS: That's correct. 17 MR. GALLERY: And, Mr. Ploss, my district people are 18 in discussions with Bureau people; is that correct, on 19 the -- hoping that we might be able to get a contract? 20 MR. PLOSS: That is correct. 21 MR. GALLERY: The Bureau has advised us that there 22 would be several things that we'd have to comply with and 23 the Bureau is making no promises, but that they're willing 24 to talk to us; is that correct? 25 MR. PLOSS: That is correct. CAPITOL REPORTERS (916) 923-5447 6681 1 MR. GALLERY: And one of the issues that we are 2 discussing with the Bureau is not only getting a contract, 3 but where we would stand as a matter of priority for New 4 Melones water; is that correct? 5 MR. PLOSS: I understand that that is the case, yes. 6 MR. GALLERY: Now, I'd like to direct your attention 7 to Stockton East Water District's 19. Do you have that? 8 MR. BRANDT: Which one is that? 9 MR. GALLERY: That's the record of decision by the 10 Secretary of Interior determining the basin in 1980. 11 MR. BRANDT: I don't have that one either. 12 MR. GALLERY: I have a copy of it here and I'd like 13 to put it up. Now, do you recall, Mr. Ploss, that in the 14 Act authorizing the New Melones Project the congress 15 directed the Secretary of the Interior to determine the 16 needs of the Stanislaus River basin, do you recall that in 17 the language of the statute? 18 MR. PLOSS: That's correct. 19 MR. GALLERY: And in the Act the statute did not 20 itself define what the Stanislaus River basin consisted of, 21 did it? 22 MR. PLOSS: No. 23 MR. GALLERY: And is it true that in Stockton East 24 Exhibit 19, which is the record of decision of the 25 Secretary of the Interior, he made his decision in CAPITOL REPORTERS (916) 923-5447 6682 1 Paragraph A on Page 1, recommended proceeding with 2 Alternative Plan Number 2 in a special report on the 3 Stanislaus River basin alternatives and water allocation, 4 do you see that? 5 MR. PLOSS: Yes. 6 MR. GALLERY: And then down in Paragraph A-2 he said 7 Basin A-2 would be adopted by the Secretary of the Interior 8 as the Stanislaus River basin for the New Melones supply; 9 is that correct? 10 MR. PLOSS: That is correct. 11 MR. GALLERY: And, then, again, in the record of 12 decision it is not literally within its four corners 13 describe what Basin 2 is, does it? 14 MR. PLOSS: No. 15 MR. GALLERY: And that actual delineation of the 16 basin was set forth in the report that the Secretary refers 17 to; isn't that correct, the 1980 special report? 18 MR. PLOSS: Yes. 19 MR. GALLERY: And I have a copy of that 1980 special 20 report here. It's a green covered document which is 21 Tuolumne District Number 9. Have you seen this report 22 before? 23 MR. PLOSS: I've seen it, but I've not reviewed it. 24 MR. GALLERY: In the report a plate is attached as 25 Plate 7, which delineates Basin 2. Have you seen that CAPITOL REPORTERS (916) 923-5447 6683 1 plate before? 2 MR. PLOSS: I've not seen this plate before. 3 MR. GALLERY: Oh, you have not. If I hadn't been 4 running around looking for my notes at the noon hour I 5 could have figured this out. Do we have the pointer? 6 Is this the first time you've seen this Plate 7 7 which depicts the basin, Mr. Ploss? 8 MR. PLOSS: Yes, it is. 9 MR. GALLERY: The basin as delineated by a blue line 10 on Plate 7, that is basin -- which was adopted as the 11 Stanislaus River basin. Do you see that in the legend on 12 the right-hand corner? 13 MR. PLOSS: Yes. 14 MR. GALLERY: And can you tell us looking at the 15 plate that the basin includes -- it depicts New Melones 16 Reservoir essentially in the center of the plate? 17 MR. PLOSS: Yes. 18 MR. GALLERY: And that south of the New Melones 19 Reservoir is -- you see Tuolumne County is located to the 20 south and a part of Tuolumne County is within the basin? 21 MR. PLOSS: Yes, it is. 22 MR. GALLERY: And then on the north of Stanislaus of 23 New Melones is Calaveras County, a large portion is within 24 the basin? 25 MR. PLOSS: Yes, it is. CAPITOL REPORTERS (916) 923-5447 6684 1 MR. GALLERY: Now, we move on out of Calaveras and 2 Tuolumne Counties. Down to the southwest we encounter the 3 county line between Calaveras County on the northeast and 4 Stanislaus County on the southwest? 5 MR. PLOSS: Yes. 6 MR. GALLERY: Do you see as we come into -- and 7 actually there's a little tip of San Joaquin County up on 8 the northern area up there within the basin, do you see 9 that? 10 MR. PLOSS: Correct. 11 MR. GALLERY: And as we come into the San Joaquin and 12 Stanislaus Counties the basin boundaries come to a kind of 13 narrow neck and then extend over to the Stanislaus River? 14 MR. PLOSS: Yes, they do. 15 MR. GALLERY: And can you see within those counties 16 the basin includes South San Joaquin Irrigation District to 17 the west? 18 MR. PLOSS: Yes. 19 MR. GALLERY: And Oakdale Irrigation District to the 20 east? 21 MR. PLOSS: Yes. 22 MR. GALLERY: And with the exception of Oakdale and 23 South San Joaquin Irrigation Districts, the other areas 24 included within Stanislaus and San Joaquin Counties include 25 an area designated as -- the red area is designated as CAPITOL REPORTERS (916) 923-5447 6685 1 farming and subarea? 2 MR. PLOSS: Yes. 3 MR. GALLERY: And then down to the south we have the 4 Coopertowns' subarea as well? 5 MR. PLOSS: Yes. 6 MR. GALLERY: But it's shown from the map that the 7 basin does not include Central San Joaquin Water 8 Conservation District, does it? 9 MR. PLOSS: That is correct. 10 MR. GALLERY: Nor does it include Stockton East Water 11 District, which is shown in blue up at the top; is that 12 correct? 13 MR. PLOSS: That is correct. 14 MR. GALLERY: Now, then, you recall that the statute 15 in directing the Secretary to determine -- in effect he had 16 to first determine what the Stanislaus River basin 17 consisted of, correct, which he did by the Secretary -- by 18 the record of decision? 19 MR. PLOSS: Yes. 20 MR. GALLERY: And then he also had to determine under 21 the statute what the needs were of the users within the 22 Stanislaus River basin so that he could determine what 23 water might be exported from the basin; is that correct? 24 MR. PLOSS: That is correct. 25 MR. GALLERY: I'd like to direct your attention to CAPITOL REPORTERS (916) 923-5447 6686 1 Paragraph B on Page 2 and to --first he recommends in the 2 first sentence that the project would be a 2,004,000-foot 3 reservoir with Basin 2 as the Stanislaus River basin? 4 MR. PLOSS: Yes. 5 MR. GALLERY: And then he goes on to decide that the 6 New Melones Reservoir would provide releases for downstream 7 fishery, water quality, downstream water rights and a water 8 supply yield estimated at about 180,000 acre-feet to meet 9 present, future ag and M&I uses for years 2020 conditions. 10 Are you familiar with this record of decision and 11 what -- have you read this before, Mr. Ploss? 12 MR. PLOSS: I haven't read this record of decision. 13 I'm aware that the studies that were done for this resulted 14 in a water supply yield of 180,000 acre-feet. 15 MR. GALLERY: Yes. 16 MR. PLOSS: And that the yield that was considered 17 for New Melones was based on historic dry period. 18 MR. GALLERY: Yes. And so -- as of 1981, at the time 19 this record of decision was adopted, that's what the Bureau 20 had calculated the yield to be on the information then 21 available? 22 MR. PLOSS: That's correct. 23 MR. GALLERY: And then out of 180,000, he goes on -- 24 actually in the next sentence he says that -- that for the 25 water year 2000 the yield would be approximately 230,000 CAPITOL REPORTERS (916) 923-5447 6687 1 acre-feet; is that correct? 2 MR. PLOSS: Yes. 3 MR. GALLERY: And then the reservoir yield for the 4 year 2020 conditions would be utilized to meet the needs 5 within Basin 2 and the remaining yield of about 49,000 6 acre-feet would be allocated to Central San Joaquin Water 7 Conservation District? 8 MR. PLOSS: Yes. 9 MR. GALLERY: And, then, finally the interim supply 10 would be allocated as discussed in Item 4-A and above. And 11 that's really what happened, isn't it, there was this 12 calculated that there was a yield of about 49,000 acre-feet 13 that could be used outside of the Stanislaus River basin? 14 MR. PLOSS: Under the 2020 conditions? 15 MR. GALLERY: Yes. 16 MR. PLOSS: Yes. 17 MR. GALLERY: And that that amount could be 18 contracted to South San Joaquin Water Conservation District 19 as a firm water supply, that's the thinking here; isn't 20 that correct? 21 MR. PLOSS: That's correct. 22 MR. GALLERY: And that was done? 23 MR. PLOSS: That is in their contract, yes. 24 MR. GALLERY: And then the remaining interim water, 25 which that study showed would -- eventually would be CAPITOL REPORTERS (916) 923-5447 6688 1 utilized within the basin that was contracted some to South 2 San Joaquin and some to Stockton East on an interim basis? 3 MR. PLOSS: To -- 4 MS. LEIDIGH: Point of clarification, Mr. Gallery, 5 you mean South San Joaquin or Central San Joaquin? 6 MR. GALLERY: I'm sorry. I mean Central San Joaquin. 7 Thank you, Ms. Leidigh. 8 MS. LEIDIGH: Thank you. 9 MR. PLOSS: That is correct. 10 MR. GALLERY: And that as of this date the Bureau 11 hasn't contracted any water to any in-basin contractors; is 12 that correct? 13 MR. PLOSS: As of this date no contractors have come 14 forward requesting a water supply contract. 15 MR. GALLERY: With the exception of? 16 MR. PLOSS: With the exception of Tuolumne Utilities 17 District. 18 MR. GALLERY: You see that in the -- in Plate 7 we 19 saw that Calaveras County was within the basin? 20 MR. PLOSS: Yes. 21 MR. GALLERY: Has Calaveras County expressed any 22 interest in water from Melones? 23 MR. PLOSS: I'm not aware of Calaveras County coming 24 forward and requesting a contract. 25 MR. GALLERY: Are you aware that Calaveras County has CAPITOL REPORTERS (916) 923-5447 6689 1 developed its own north fork Stanislaus Project upstream? 2 MR. PLOSS: I believe that's the case, yes. 3 MR. GALLERY: Yes. And then keeping in mind the 4 basin areas within Stanislaus and San Joaquin Counties, 5 have either of those areas, or any of those areas come 6 forward requesting a contract? 7 MR. PLOSS: Not to my knowledge. 8 MR. GALLERY: In the record of decision the Secretary 9 of the Interior referenced the 1980 September green report, 10 which I have handed you which is Tuolumne Utilities 11 District's Number 9. Have you familiarized yourself with 12 that report on any occasion? 13 MR. PLOSS: No, I have not. 14 MR. GALLERY: Are you aware that that report 15 concluded that the needs of Tuolumne County from the New 16 Melones Project would ultimately be about 9,000 acre-feet 17 per year? 18 MR. PLOSS: I understand that that was the 19 projection, yes. 20 MR. GALLERY: Mr. Ploss, are you familiar with the 21 water filings of the Bureau for the appropriation of water 22 at the New Melones Reservoir? 23 MR. PLOSS: To some extent, yes. 24 MR. GALLERY: You're aware that the Bureau filed 25 application 19-304 in 1960 to appropriate 2,400,000 CAPITOL REPORTERS (916) 923-5447 6690 1 acre-feet at the reservoir for various consumptive uses? 2 MR. PLOSS: I couldn't give you the date or the 3 number on it. 4 MR. GALLERY: Sound about right? 5 MR. PLOSS: Sounds right. 6 MR. GALLERY: And that, subsequently, the Bureau 7 petitioned the State Water Board to also assign to its 8 State Application 14-458 for the appropriation of water at 9 New Melones? 10 MR. PLOSS: I believe so, yes. 11 MR. GALLERY: And the State filing, which had been 12 made in 1952, was for 980,000 acre-feet. Are you aware of 13 that? 14 MR. PLOSS: I'm not aware of that. 15 MR. GALLERY: Those applications are in evidence, 16 Mr. Chairman, as State Staff Exhibit Number 6. 17 C.O. CAFFREY: Thank you, sir. 18 MR. GALLERY: Have you had occasion, Mr. Ploss, to 19 read State Water Board Decision 1422 which authorized the 20 issuance of permits to the Bureau for the New Melones 21 Project? 22 MR. PLOSS: I've had an opportunity, yes, to go 23 through it. 24 MR. GALLERY: I wanted to direct your attention to 25 Pages 24 and 25 of Decision 1422. Page 24 there's a CAPITOL REPORTERS (916) 923-5447 6691 1 section entitled "Assignment of State Applications 14-858 2 and 859 held by the Board." 3 MR. PLOSS: Yes. 4 MR. GALLERY: And the decision -- the Board says in 5 the decision the Board may assign applications -- 6 THE COURT REPORTER: I'm sorry, Mr. Gallery. Start 7 that one over. 8 MR. GALLERY: The decision reads, Paragraph Number 9 12, 10 (Reading): 11 "The Board may assign any applications filed in 12 accordance with Water Code Section .2 -- 10500 13 and held by the Board in the assignment as for 14 the purpose of the development not in conflict 15 with the general or coordinated plan 16 looking towards the development, utilization, or 17 conservation of water resources in the state or 18 with water quality objectives established 19 pursuant to law," quoting 10.504. 20 And then the decision says further, 21 (Reading): 22 "No such assignment shall be made that would 23 deprive the county in which the water covered by 24 the application originates of any such water 25 necessary for the development of the county." CAPITOL REPORTERS (916) 923-5447 6692 1 You're probably familiar with the county of origin 2 statute, are you, Mr. Ploss? 3 MR. PLOSS: Yes. 4 MR. GALLERY: And then if you turn to Page 25 -- 5 Mr. Chairman, State Board Decision 1422 is in evidence as 6 Staff Exhibit 5-F. 7 C.O. CAFFREY: Thank you, Mr. Gallery. 8 MR. GALLERY: On Page 25 of the Board's decision 9 first part says that the project is not in conflict with 10 the California Water Plan. And that third sentence, 11 (Reading): 12 "The use of a portion of the yield for the 13 reservoir for water qualities in keeping with 14 water quality objectives for the lower San 15 Joaquin River." 16 And then next sentence, 17 (Reading): 18 "Assignment of the application should be subject 19 in conformity with Section 10505 of the Water 20 Code to any and all rights of any county in 21 which the water is sought to be appropriated 22 originates to the extent that any such water 23 may be necessary for the development of such 24 county. As so conditioned, assignment will not 25 deprive any such county of any water necessary CAPITOL REPORTERS (916) 923-5447 6693 1 for its development. Any permits issued should 2 contain a similar term." 3 And the last sentence, 4 (Reading): 5 "The counties of origin are further protected by 6 Public Law 87-874 which provides the needs of 7 the Stanislaus River basin have a priority." 8 Now, you would agree, Mr. Ploss, wouldn't you, 9 that my district, Tuolumne Utilities District is within the 10 county of origin of the water appropriated at New Melones 11 Reservoir? 12 MR. O'LAUGHLIN: Objection. Calls for a legal 13 conclusion. 14 C.O. CAFFREY: Do you know the answer, or do you have 15 an answer, Mr. Ploss? 16 MR. PLOSS: I believe the Tuolumne Utilities District 17 is within the area of origin of the basin of the Stanislaus 18 River, yes. 19 C.O. CAFFREY: All right, sir. 20 MR. GALLERY: Mr. Ploss, I need to be careful of the 21 terms. The area of origin is kind of a generic term. We 22 have a Stanislaus River basin under federal law? 23 MR. PLOSS: That's correct. 24 MR. GALLERY: And then we have a county of origin 25 under State Water Code Section 10505. And the county of CAPITOL REPORTERS (916) 923-5447 6694 1 origin law doesn't use the word "area" which leads off into 2 weird places. It's specific that the county of origin is 3 entitled to be protected. 4 And you've indicated you believe that Tuolumne 5 Utilities District is within the county of origin. In 6 fact, a good part of the Stanislaus River originates within 7 Tuolumne County; isn't that correct? 8 MR. PLOSS: Yes. 9 MR. GALLERY: Are you familiar with the permits that 10 the State Water Board issued for the New Melones Project, 11 Mr. Ploss? 12 MR. PLOSS: Generally, yes. 13 MR. GALLERY: Before we get to the permits, I want to 14 hand you a copy of a protest which was filed by Tuolumne 15 County Water District Number 2 against the Bureau's 16 application for assignment of those State filings. Have 17 you ever had occasion to read that protest? 18 MR. PLOSS: I've not read this. I'm aware of it, 19 yes. 20 MR. GALLERY: I'd like to ask you to look at Page 2 21 of the protest which was filed. The protest was actually 22 filed by Tuolumne County Water District Number 2, which is 23 the predecessor of Tuolumne Utilities District. In those 24 days we were known as Tuolumne County Water District Number 25 2. CAPITOL REPORTERS (916) 923-5447 6695 1 And in our protest we listed on Page 2 the 2 conditions under which the District would withdraw its 3 protest. Do you see those conditions that the protestants 4 specified? 5 MR. BRANDT: Objection. Lack of foundation here. 6 The witness has already testified that he's never seen this 7 document before, so he can't authenticate it. I mean he 8 can see what's on this piece of paper, but we have no idea 9 if that's what the protestants said. 10 I mean, we've been going through here and he's 11 just been reading things and very little testimony has come 12 out of Mr. Ploss. I mean he's just reading and Mr. Ploss 13 says "I see." 14 C.O. CAFFREY: Unless you're objecting to the point 15 that the attorney just made, I think he makes a good point. 16 And if you -- you probably need to ask another question, 17 Mr. Gallery. 18 MR. GALLERY: All right. I'd like to ask Mr. Ploss 19 if he would read condition Number 4 in the District's 20 protest. 21 MR. PLOSS: "That the assignment be on the condition 22 that the assignee shall at any time in the future be 23 obligated to make available to any areas within Tuolumne 24 County which may desire to purchase water out of the 25 project such water as may be desired at an equitable cost." CAPITOL REPORTERS (916) 923-5447 6696 1 MR. GALLERY: Thank you. And then pursuant to that 2 protest an agreement was entered into subsequently between 3 Tuolumne County Water District Number 2 and the Bureau of 4 Reclamation, which is TUD Exhibit Number 6, which I'm 5 handing you a copy of. 6 MR. PLOSS: Yes. 7 MR. GALLERY: Have you ever had occasion to read that 8 agreement? 9 MR. PLOSS: I have read parts of it. 10 MR. GALLERY: And I'd like to direct your attention 11 to Page 4 of the agreement. Would you agree with me that 12 paragraph -- in paragraph one the United States agreed that 13 its New Melones diversion rights would be junior to any 14 application made by anyone upstream within TCWD Number 2, 15 whether they were before or after the Bureau filings? 16 MR. BRANDT: Objection. Calls for a legal 17 conclusion. 18 C.O. CAFFREY: With great respect for your 19 objections, Mr. Brandt, I'm going to say what I've said 20 before and it's consistent with what we have been doing. 21 Again, I don't expect the witness to be a legal 22 expert, but I think because of his position, his 23 engineering skills and the requirements of his position he 24 may be able to answer those questions. If he feels he can 25 then I'm going to allow him to answer. CAPITOL REPORTERS (916) 923-5447 6697 1 Do you have an answer, Mr. Ploss? 2 MR. PLOSS: I want to ask that it be restated. 3 C.O. CAFFREY: Please, do, Mr. Gallery. 4 MR. GALLERY: Yes. Would you agree that in paragraph 5 one the Bureau agreed with Tuolumne County Water District 6 Number 2 that any person, district, agency, or corporation 7 could divert water from the Stanislaus or any tributary 8 that would -- and its doing so would obtain a right that 9 would be prior and superior to any rights of the United 10 States on the Stanislaus? 11 MR. O'LAUGHLIN: Objection. Compound. 12 C.O. CAFFREY: Was that you, Mr. O'Laughlin? 13 MR. O'LAUGHLIN: Yes, that was me. 14 C.O. CAFFREY: Do you understand the question, 15 Mr. Ploss, as he restated it? 16 MR. PLOSS: Maybe we can break it down a little bit. 17 C.O. CAFFREY: Let's take it in parts, Mr. Gallery, 18 if you would, please. 19 MR. GALLERY: All right. The first four lines state 20 that the United States agrees that anybody -- any person, 21 district, agency, or corporation including Tuolumne County 22 Water District Number 2 could divert or impound water from 23 the Stanislaus for any tributary. It states that, doesn't 24 it? 25 MR. PLOSS: Yes, it does. CAPITOL REPORTERS (916) 923-5447 6698 1 MR. GALLERY: And then it goes on to say in the sixth 2 line down, and that they right to do so -- pardon me, 3 seventh line down, whenever initiated would be prior and 4 superior to the rights of United States to divert waters 5 from the Stanislaus River. 6 MR. PLOSS: Yes. 7 MR. GALLERY: So would you agree the net effect was 8 that if anybody upstream should ever file to appropriate 9 for use within Tuolumne County Water District Number 2 they 10 would have a prior right? 11 MR. PLOSS: If anyone files for and is appropriated a 12 right upstream that right would be prior to the uses of 13 water for New Melones, yes. 14 MR. GALLERY: And that agreement would be consistent 15 with the county of origin requirement, wouldn't you agree, 16 Mr. Ploss? 17 MR. BRANDT: Objection. Calls for a legal 18 conclusion. 19 MR. O'LAUGHLIN: Objection. Calls for legal 20 conclusion. 21 MR. GALLERY: And then I wanted to direct your 22 attention to Paragraph 2. 23 C.O. CAFFREY: I guess that was sustained by 24 Mr. Gallery as a matter of fact. He accepted it and went 25 on. Go ahead, Mr. Gallery. CAPITOL REPORTERS (916) 923-5447 6699 1 MR. GALLERY: "United States further agrees that in 2 the event that TCWD Number 2, or any user within TCWD 3 Number 2 should desire to purchase water impounded by the 4 United States and New Melones Reservoir," you agree that's 5 what it says? 6 MR. PLOSS: That's correct. 7 MR. GALLERY: "For release as replacement water in 8 order to satisfy other prior rights downstream from New 9 Melones, or for other reasonable and beneficial purposes 10 that the United States will sell such water to such user, 11 or TCWD Number 2 at prices not exceeding those applicable 12 for such water for New Melones customers for the use to 13 which TC Water District Number 2's water would be put." 14 Do you see that contemplates buying water by TCWD 15 Number 2, or its users for either of two purposes, A, for 16 releasing -- to use as replacement water to satisfy other 17 users downstream, or directly for use within the water 18 district, or by such user within the water district? 19 MR. PLOSS: That is correct. 20 MR. GALLERY: Then I wanted to ask you to look at 21 Paragraph 7 on Page 6 of the agreement. And Paragraph 7 22 provides, 23 (Reading): 24 "That the Water District agrees to withdraw its 25 protests to the Bureau's applications and to the CAPITOL REPORTERS (916) 923-5447 6700 1 Bureau's request for assignment of the State 2 filed applications." 3 Correct? 4 MR. PLOSS: That is correct. 5 MR. GALLERY: And the Bureau agreed that the 6 substance of Paragraph 1, 2 and 4 would be included in the 7 permits of the Bureau for the project? 8 MR. PLOSS: That is correct. 9 MR. GALLERY: Do you recall we discussed the record 10 of decision by the Secretary of the Interior in 1981 11 wherein he concluded that the project would yield 180,000 12 acre-feet of water conservation yield? 13 MR. PLOSS: Yes. 14 MR. GALLERY: In 1981? 15 MR. PLOSS: Yes. 16 MR. GALLERY: Would you agree with me, then, that at 17 the time Tuolumne Water District Number 2 entered into this 18 agreement with the Bureau to withdraw its protest in 19 exchange for a promise of a water contract that neither 20 party had any expectation that the New Melones water would 21 be used for water quality to such an extent that it would 22 preclude TUD from getting a water supply? 23 MR. PLOSS: I can't speak to what the Bureau may have 24 expected in the future when they entered into this 25 agreement. Based on the findings that they had at the CAPITOL REPORTERS (916) 923-5447 6701 1 time, it would appear that Reclamation felt this agreement 2 was a fair settlement. 3 MR. GALLERY: Fair settlement, all right. Now, then 4 I want to direct your attention to the permit terms which 5 were issued to the Bureau for the New Melones Project and 6 permit application, State filed Application 14858-A, a 7 permit was issued Number 16, 5/'97; is that correct? 8 MR. PLOSS: Yes. 9 MR. GALLERY: And in addition to that permit a second 10 permit was issued on Application 19304, Permit Number 11 16600? 12 MR. PLOSS: Yes. 13 MR. GALLERY: And these permits are also Staff 14 Exhibit -- Staff Exhibit Number 6. 15 C.O. CAFFREY: All right. Thank you, Mr. Gallery. 16 MR. GALLERY: And can you see in Paragraph 5 of the 17 first permit, Mr. Ploss, that -- which is issued on the 18 State filed application that authorized the 19 appropriation -- Paragraph 5 on the top of Page 2, the 20 appropriation of 980,000 acre-feet per year? Top of Page 21 2, do you have it? 22 MR. PLOSS: Stapled out of order. 23 MR. GALLERY: I see. And that the other permit, 24 which was the Bureau's own application, that authorized the 25 appropriation of one million -- what is the number in the CAPITOL REPORTERS (916) 923-5447 6702 1 second permit? 2 MR. PLOSS: 1,420,000 acre-feet. 3 MR. GALLERY: And those two numbers combined come to 4 2,400,000 acre-feet, correct? 5 MR. PLOSS: Correct. 6 MR. GALLERY: I wanted to direct your attention to 7 permit condition Number 17 in the permit. Condition 17 8 authorizes the Bureau to impound water, such water as 9 needed not in excess of 98,000 acre-feet for fish and 10 wildlife, plus such additional water as necessary to 11 maintain water quality conditions set fourth in Paragraph 12 19. 13 Now, you're aware, Mr. Ploss, that this permit 14 term has since been modified to -- or, perhaps, I'm wrong 15 in that. My impression was that the permit had been 16 modified to incorporate the 1978 Agreement between Fish and 17 Game. Do you know whether that's happened or not? 18 MR. PLOSS: The 1987 Agreement with Fish and Game 19 expanded the quantities of water for fish and wildlife. 20 MR. GALLERY: Yes. So that, in effect, this part of 21 the permit has been in effect superseded by a later term? 22 MR. PLOSS: Correct. 23 MR. GALLERY: Yeah. Now, then, in any event it 24 refers to Paragraph 19 for water quality control -- I'm 25 sorry, yes it's Paragraph 19. Paragraph 19 requires the CAPITOL REPORTERS (916) 923-5447 6703 1 Bureau to release water from the reservoir to maintain 500 2 parts per million at Vernalis and the dissolved oxygen as 3 specified in the Water Quality Control Plan. Correct? 4 MR. PLOSS: That is correct. 5 MR. GALLERY: And the permit term doesn't limit the 6 releases to 70,000 acre-feet as the Secretary of the Army 7 had recommended, does it? 8 MR. PLOSS: No. 9 MR. GALLERY: And then in Condition 20 the State 10 Water Resources Control Board reserves jurisdiction over 11 this permit for the purpose of revising water release 12 requirements for water quality objectives and fish 13 releases. Do you see that? 14 MR. PLOSS: Yes, I do. 15 MR. GALLERY: And then finally down at the bottom of 16 the permit, paragraph -- page -- Paragraph 24, which reads, 17 (Reading): 18 "That this permit is subject to the following 19 agreements between the permittee and other 20 parties." 21 And we would go to the next page. And the permit 22 specifies that it is first subject to the agreement with -- 23 the agreements between Oakdale Irrigation District and 24 South San Joaquin Irrigation District? 25 MR. PLOSS: Yes. CAPITOL REPORTERS (916) 923-5447 6704 1 MR. GALLERY: And is next subject to the agreement 2 between the permittee and Tuolumne County Water District 3 Number 2? 4 MR. PLOSS: Correct. 5 MR. GALLERY: And finally the agreement between 6 permittee and Calaveras? 7 MR. PLOSS: Correct. 8 MR. GALLERY: And as you indicated there is no 9 agreement in force or in effect between Calaveras and 10 permittee for water out of the project, is there? 11 MR. PLOSS: Not to my knowledge. 12 MR. GALLERY: And the Oakdale and South San Joaquin 13 Districts have been receiving the water that they were 14 entitled to under their agreement; isn't that correct? 15 MR. PLOSS: Yes. And that agreement was modified I 16 believe in 1987. 17 MR. GALLERY: Yes. And then finally, Mr. Ploss, I 18 wanted to direct your attention to Paragraph 25 of the 19 permit, 20 (Reading): 21 "This permit does not authorize the use of any 22 water outside the counties of origin which is 23 necessary for the development of the counties." 24 Correct? 25 MR. PLOSS: Right. CAPITOL REPORTERS (916) 923-5447 6705 1 MR. GALLERY: Now, you'd agree with me that the use 2 of water from Melones to maintain salinity objectives at 3 Vernalis is using water outside the county of origin of the 4 water in the reservoirs? 5 MR. PLOSS: Repeat that again. 6 MR. GALLERY: Is the use of water at Vernalis to 7 maintain water quality outside the -- outside the county in 8 which the water in Melones Reservoir originates? 9 MR. PLOSS: Unless -- 10 MR. BRANDT: Objection. Vague. 11 MR. GALLERY: The water that's impounded in Melones 12 Reservoir -- 13 C.O. CAFFREY: Mr. Gallery, excuse me, for 14 interrupting. 15 MR. GALLERY: I'm sorry. 16 C.O. CAFFREY: We want to go off the record, not for 17 anything that you're doing. 18 MR. GALLERY: All right. 19 C.O. CAFFREY: I need to have a consultation with my 20 advisor up here and I just don't want to miss anything. So 21 we'll be back to you. 22 (Off the record from 1:56 p.m. to 2:00 p.m.) 23 C.O. CAFFREY: All right. We're back on the record. 24 You may proceed, Mr. Gallery. How much more time do you 25 think you're going to need by the way? CAPITOL REPORTERS (916) 923-5447 6706 1 MR. GALLERY: Not more than five minutes. I'm nearly 2 finished. 3 C.O. CAFFREY: All right. Please, proceed, 4 Mr. Gallery. 5 MR. GALLERY: You would agree that all the water that 6 is impounded in New Melones Reservoir by the Bureau under 7 its two permits is water that originates either in Tuolumne 8 County, or Calaveras County, or Alpine County; is that 9 correct? 10 MR. PLOSS: Yes. 11 MR. GALLERY: And that using water for water quality 12 control at Vernalis on the Stanislaus River is use of water 13 outside the counties in which that water originates? 14 MR. BRANDT: Objection. Calls for a legal 15 conclusion. 16 MR. GALLERY: Mr. -- 17 C.O. CAFFREY: Do you have an answer, Mr. Ploss? Do 18 you have an opinion? 19 MR. PLOSS: I don't believe so. 20 C.O. CAFFREY: All right. That's the answer. 21 MR. GALLERY: Do you believe that the water which is 22 taken from Melones and released downstream for water 23 quality at Vernalis does not originate within Tuolumne and 24 Calaveras Counties? 25 MR. PLOSS: Maybe you can repeat that, again. It CAPITOL REPORTERS (916) 923-5447 6707 1 didn't sound right. 2 C.O. CAFFREY: If you don't understand a question, or 3 you're not comfortable with it, to say so is an answer. 4 MR. GALLERY: Is the use of the water in Melones 5 Reservoir for water quality at Vernalis using water -- 6 using that water outside of the counties in which it 7 originates? 8 MR. PLOSS: I don't believe I can give an opinion on 9 that. Beyond my expertise as far as trying to interpret 10 the county of origin and area of origin statutes. 11 MR. GALLERY: All right. You're aware that Vernalis 12 is on the San Joaquin River? 13 MR. PLOSS: Yes. 14 MR. GALLERY: And that San Joaquin River runs along 15 the western boundary -- no, the San Joaquin River runs 16 through San Joaquin County? 17 MR. PLOSS: Yes. 18 MR. GALLERY: It does not run through Tuolumne or 19 Calaveras County? 20 MR. PLOSS: Correct. 21 MR. GALLERY: If the Bureau uses the water in New 22 Melones for water quality control at Vernalis under 23 Paragraph 19 of its permits to such an extent that it has 24 no water for Tuolumne County Water District Number 2 under 25 Condition 24-B, would you agree that the Bureau is CAPITOL REPORTERS (916) 923-5447 6708 1 violating Condition 24-B? 2 MR. O'LAUGHLIN: Objection. Lacks foundation, or an 3 incomplete hypothetical. He hasn't established that no 4 water is available for Tuolumne County under that condition 5 because they're releasing water for water quality. 6 MR. GALLERY: Well, my -- 7 C.O. CAFFREY: I think to get to that question, I 8 agree with Mr. O'Laughlin. You probably have to ask a few 9 in advance of that than the one you just asked, 10 Mr. Gallery. 11 MR. GALLERY: Let us assume, Mr. Ploss, that the 12 Bureau has entered into a water supply agreement with 13 Tuolumne Utilities District. 14 MR. PLOSS: Okay. This is an assumption, yes. 15 MR. GALLERY: On the basis of our 1972 Agreement. 16 MR. PLOSS: Correct. 17 MR. GALLERY: If, then, in any year the Bureau should 18 advise the District that it has no water available under 19 that contract because it must release the water for water 20 quality under Condition 19 at Vernalis, is it not violating 21 Condition 24-B of the permit? 22 MR. BRANDT: Objection. Calls for a legal 23 conclusion. 24 MR. O'LAUGHLIN: Objection. The hypothetical is 25 calling for a conclusion that is really stating a fact CAPITOL REPORTERS (916) 923-5447 6709 1 rather than taking into regard the assumption and basing an 2 opinion on the assumption by saying "Isn't it true that," 3 rather than saying "In your opinion, wouldn't this be or 4 that be?" It's a totally -- 5 C.O. CAFFREY: That's a commentary on the form of the 6 question. And I'm going to ask the witness if he 7 understands the question in the first place and has an 8 opinion. 9 MR. PLOSS: I believe I do. And it is calling for an 10 interpretation of the paragraphs that could be in conflict 11 in this hypothetical, paragraphs in the permit and I'm not 12 qualified to respond. 13 C.O. CAFFREY: All right. Thank you, sir. 14 MR. GALLERY: Is it true, Mr. Ploss, that if the 15 Bureau decides to utilize the available yield in any year 16 for Vernalis water quality under Paragraph 19, and on that 17 basis declare no water available to Tuolumne Utilities 18 District under its contract that you are prioritizing the 19 two permit conditions putting one ahead of the other? 20 MR. O'LAUGHLIN: Objection. Incomplete hypothetical, 21 again. Let me just state this for the record, he keeps 22 asking questions in the present tense rather than stating 23 it as a hypothetical. My problem with the question is that 24 he's asking him to state a fact in this situation when, in 25 fact, TUD does not have any contract from New Melones and CAPITOL REPORTERS (916) 923-5447 6710 1 has no right to take water from New Melones at the present, 2 nor has he established that fact. So -- 3 C.O. CAFFREY: And, therefore, the reader of the 4 record is unable, perhaps, to distinguish between the 5 hypothetical and what is factual. 6 MR. O'LAUGHLIN: Right. 7 C.O. CAFFREY: I understand your objection, 8 Mr. O'Laughlin, and it does go to the form of the question, 9 but I think it's an important point. 10 Which I believe you can help, Mr. Gallery, by 11 changing the form of your questioning. 12 MR. GALLERY: Yes. 13 C.O. CAFFREY: Change your form and make it purely 14 hypothetical. 15 MR. GALLERY: I think Mr. O'Laughlin has a valid 16 point. Then, let's make the assumption, Mr. Ploss, that we 17 have entered into an agreement under Paragraph 24-B between 18 the District and the Bureau for a water supply. And a year 19 comes when there is not sufficient water to deliver to meet 20 the salinity standards under Condition 19 and delivering 21 water to TUD. And so the Bureau would make a decision to 22 deny TUD water and use it all for salinity. 23 Wouldn't you in doing that be setting a priority 24 between two conditions in your permit, electing to comply 25 with one permit and ignore -- one permit term and ignoring CAPITOL REPORTERS (916) 923-5447 6711 1 the other? 2 MR. BRANDT: Objection. Calls for a legal 3 conclusion. Also, incomplete hypothetical, because it 4 doesn't specify what are the terms of that contract. When 5 you go to this agreement -- and really you need to go back 6 to the 1972 Agreement, you need to interpret all these 7 provisions. And whether there's a provision in there that 8 would be consistent that would allow for some shortage in 9 some years -- I mean there's just a whole range of 10 questions that come up. So on that basis it's an 11 incomplete hypothetical. 12 MR. O'LAUGHLIN: And not only is it that, it's a 13 totality as well because what he set up in his argument is 14 the fact that you will do this and you will do that, i.e., 15 you will make this decision first, giving the water to 16 water quality and you will do that second, by your terms 17 you have created a priority. We all know the answer to 18 that, it's true, they've created a priority. 19 But that's not a proper question to ask the 20 witness. Because you're saying based on the question in 21 and of itself creates the response and the response is not 22 an opinion expressed by the witness. I don't see how you 23 can do that. 24 C.O. CAFFREY: Mr. Gallery, do you want to comment 25 before I rule? CAPITOL REPORTERS (916) 923-5447 6712 1 MR. GALLERY: Well, I don't know that it matters in a 2 cross-examination whether I'm asking for a fact or an 3 opinion of a witness. Mr. -- 4 MR. O'LAUGHLIN: Well, it does if you're asking a 5 hypothetical. 6 C.O. CAFFREY: Just a minute. Let him comment, 7 Mr. O'Laughlin. Go ahead. 8 MR. GALLERY: So that it seems to me that if I assume 9 we have made a contract for water supply for my district 10 and we're denied water because of the use of the water for 11 salinity at Vernalis, that the Bureau would, in fact, be 12 making a priority of one condition over the other. 13 And what I wanted to lead up to is, A, does he 14 agree that he would be prioritizing the conditions? And 15 that's, essentially, the question that I'm asking you. 16 C.O. CAFFREY: Well, let me -- I've gotten two 17 objections on the table here and also a reposing of the 18 question by you, this last point here. In response to 19 Mr. Brandt's objection I'm inclined to agree with 20 Mr. Brandt, that it is a very complicated -- it is 21 potentially a complicated question. Although, it is 22 somewhat simply asked, when you condition that with the 23 fact that it's going beyond the expertise of the witness, 24 I'm not sure what value the answer would be if we allowed 25 him to answer. CAPITOL REPORTERS (916) 923-5447 6713 1 Why don't we try again with where you're trying to 2 go and try to state the questions as hypotheticals as 3 succinctly as we can to see if we can get something that 4 Mr. Ploss understands. 5 MR. GALLERY: All right. Mr. Ploss, do you know that 6 if the Bureau does enter into an agreement with Tuolumne 7 Utilities District whether the Bureau would insist that the 8 receipt of water by the District would be subordinate to 9 the use of salinity -- the use of Melones for salinity 10 control? 11 MR. O'LAUGHLIN: I'm going to object to this, because 12 this violates the contractual obligations of the Bureau to 13 enter into -- there's a specific letter on this from the 14 Bureau to Tuolumne Utilities District. And I'm going to 15 assume that this is part of the public contracting that 16 would necessarily take place between TUD and the United 17 States Bureau of Reclamation. 18 So unless the Bureau is going to set up the terms 19 and conditions of that contract within that hearing then I 20 think we should disclose this as a negotiation session 21 between TUD and the United States Bureau of Reclamation. 22 C.O. CAFFREY: Which I might add that the witness 23 could state, perhaps, if -- 24 MR. NOMELLINI: I think we ought to swear 25 Mr. O'Laughlin in so we can -- CAPITOL REPORTERS (916) 923-5447 6714 1 C.O. CAFFREY: I'm sorry, I can't hear you. 2 MR. NOMELLINI: So we can cross-examine him on this 3 if he really wants to testify, let him testify. 4 C.O. CAFFREY: You're speaking of Mr. O'Laughlin? 5 MR. NOMELLINI: O'Laughlin, exactly. That wasn't an 6 objection. That was a statement of what he contends are 7 the facts. I don't know if they're true or not. That's 8 why I would like to cross-examine him. 9 C.O. CAFFREY: Since Mr. O'Laughlin is not under 10 oath, and since this Board will determine what is testimony 11 and what isn't, then once that determination is made we'll 12 determine what weight to give it. 13 I respect your objection and your statement, 14 Mr. Nomellini, it's in the record. But from time to time 15 we've all bordered on testimony around here, perhaps, the 16 Board Members as well. So we'll do an adequate job when we 17 review the record and make our decision as to what was and 18 wasn't testimony. 19 Where does that leave -- I'm going to allow 20 Mr. Ploss to answer the last question that Mr. Gallery 21 asked if he has an answer. It calls for opinion. 22 MR. PLOSS: I'm unable to speak to what terms and 23 conditions may be negotiated in the future contracts -- 24 C.O. CAFFREY: Thank you, sir. 25 MR. PLOSS: -- that haven't taken place yet. CAPITOL REPORTERS (916) 923-5447 6715 1 C.O. CAFFREY: All right. 2 MR. GALLERY: Mr. Ploss, you'd agree with me that 3 there's nothing in the Bureau's permits which provides for 4 a prioritization of the different obligations that are set 5 forth in the permits? 6 MR. BRANDT: Objection. Calls for a legal 7 conclusion. 8 MR. GALLERY: I think that Mr. Ploss as the director 9 of Central Valley Operations is necessarily familiar with 10 the permit terms and can read them and tell us what he 11 understands them to mean. 12 C.O. CAFFREY: Well, I'm going to allow Mr. Ploss to 13 answer. He seems very capable to distinguish between what 14 he does understand generally about the law and what he 15 doesn't understand about the law. And I'm going to 16 encourage him to make that distinction, because it's his 17 right and he should not feel uncomfortable in so asserting 18 it. 19 You may answer, sir. 20 MR. PLOSS: I'm going to give a long answer and that 21 is that during the recent drought we faced circumstances at 22 New Melones where there was insufficient water supply to 23 meet what would be viewed as the permit conditions for the 24 project. 25 We went to great strides to meet with all of the CAPITOL REPORTERS (916) 923-5447 6716 1 parties that had entitlements or contracts out of New 2 Melones, or were affected by those permit conditions to try 3 and balance the resources, to make releases in a manner 4 that could satisfy as many of the conditions as possible. 5 We avoided making a decision on what we felt was 6 the priorities under the permits. And we were not burdened 7 with that, nor was the State Board burdened with that, 8 making that distinction. And that would be the best answer 9 I could give. We have not tried to give a priority on the 10 conditions and would not attempt to do so without 11 sufficient and probably extensive legal problems. 12 C.O. CAFFREY: Thank you, sir. 13 MR. GALLERY: Would you agree, Mr. Ploss, that at the 14 time the permits were issued to the Bureau, which was in 15 1983, that none of the parties involved foresaw the 16 possibility of conflict between the various permit 17 conditions based on what has happened since? 18 C.O. CAFFREY: Ms. Leidigh? 19 MS. LEIDIGH: Mr. Gallery, what year were the permits 20 issued? 21 MR. GALLERY: 1983. 22 MS. LEIDIGH: You said 1983? 23 MR. BRANDT: D-1422. 24 MS. LEIDIGH: Are you talking about D-1422? 25 MR. GALLERY: Yeah. D-1422 was 1972, but because the CAPITOL REPORTERS (916) 923-5447 6717 1 Board said originally they couldn't fill the reservoir, 2 there was litigation and the permits never issued until 3 1983. That is the permits that Mr. Ploss and I have gone 4 over did not issue until 1983. Earlier versions limited 5 the filling of the reservoir. 6 MS. LEIDIGH: Do you have a document to that effect? 7 MR. GALLERY: Well, I have the 1983 permits, 8 Ms. Leidigh. 9 MR. BRANDT: Yes. The ones he's been showing us have 10 been dated 1983, but these are not necessarily the first 11 ones when the permits -- the permits were issued. 12 MR. GALLERY: That's, perhaps, true. It's my 13 impression that these were the original permits that were 14 issued. 15 MS. LEIDIGH: I thought it was amended in '93. 16 C.O. CAFFREY: Thank you, Mr. Jackson. Were you 17 going to enlighten us, Ms. Leidigh? 18 MS. LEIDIGH: Well, I think we'd have to check our 19 records a little further. These permits do have a date of 20 1983, but I know there were hearings in 1983 and there were 21 amendments to those permits, or amendments to D-1422 at 22 least at that time. So I think we'd have to check the 23 records as to whether those permits was issued in 1973, 24 which is what I believe they were. 25 C.O. CAFFREY: That being the case, where does that CAPITOL REPORTERS (916) 923-5447 6718 1 leave us? 2 MS. LEIDIGH: It's a pretty minor point. 3 C.O. CAFFREY: I was thinking we would go ahead with 4 the questioning and then we'll give it what weight we 5 determine later. And, of course, it will depend, 6 obviously, on Mr. Ploss's answers. 7 MS. LEIDIGH: Yeah. I think the record will show 8 that once we review the documents. 9 C.O. CAFFREY: All right. Thank you, Ms. Leidigh. 10 MR. GALLERY: I have no further questions, 11 Mr. Chairman. 12 C.O. CAFFREY: All right. Thank you, Mr. Gallery. I 13 don't think that Mr. Hasencamp is here, is he? 14 DR. SHUM: Mr. Hasencamp cannot be here this 15 afternoon. He has no questions. 16 C.O. CAFFREY: He has no questions? 17 DR. SHUM: No questions. 18 C.O. CAFFREY: All right. Thank you, sir. 19 Mr. Jackson. 20 MR. JACKSON: Thank you, sir. 21 C.O. CAFFREY: You've waited a long time and here we 22 are. Mr. Jackson, I believe you told me -- I'm just trying 23 to get some housekeeping going here, I believe you told me 24 you would need about an hour? 25 MR. JACKSON: About an hour. CAPITOL REPORTERS (916) 923-5447 6719 1 C.O. CAFFREY: All right. Thank you, sir. 2 MR. JACKSON: I mean, do you want to take a break 3 now? I'd rather do it all in one piece if I could. 4 C.O. CAFFREY: We can take a break now and come back 5 in about 12 minutes or so. 6 (Recess taken from 2:21 p.m. to 2:38 p.m.) 7 C.O. CAFFREY: We're back on the record, back from 8 break. Mr. Jackson, it is your time to cross-examine 9 Mr. Ploss. 10 MR. JACKSON: Thank you, sir. 11 ---oOo--- 12 CROSS-EXAMINATION OF STOCKTON EAST WATER DISTRICT 13 BY REGIONAL COUNCIL OF RURAL COUNTIES 14 BY MICHAEL JACKSON 15 MR. JACKSON: Mr. Ploss, would you for the record 16 state what your duties are at the Bureau of Reclamation? 17 MR. PLOSS: As the manager for the Central Valley 18 Operations Office I oversee and direct the decisions made 19 for the operation of the project for both water supply, 20 power generation, flood control and all the other 21 authorized purposes. 22 MR. JACKSON: What are the elements of your project 23 that you oversee? The word "element" bother you? 24 MR. PLOSS: Yes. 25 MR. JACKSON: What facilities do you oversee? CAPITOL REPORTERS (916) 923-5447 6720 1 MR. PLOSS: Our office oversees all the project 2 facilities starting with Trinity on the Trinity River, 3 Whiskey Town, Shasta, Keswick Dam and Power Plant and 4 Folsom and Nimbus, Tracy Pumping Plant, Delta-Mendota San 5 Luis Canals, a portion of the San Luis Reservoir share with 6 the State of California and New Melones. Our Friant 7 Reservoir is managed and operated out of our Southern 8 California area office located in Fresno. 9 MR. JACKSON: Do you have any oversight authority 10 over Friant? 11 MR. PLOSS: We consult with them. They have the 12 oversight authority. In fact, the Southern California area 13 office directly operates Friant Dam and Reservoir. We 14 serve in a consultation capacity with them on some of their 15 operations decisions during flood control season. 16 MR. JACKSON: Does Friant operate under the same set 17 of rules and regulations as the rest of the project 18 facilities that you oversee? 19 MR. PLOSS: Yes. Generally speaking, they comply 20 with the permit conditions for Friant Dam. And under flood 21 control requirements established by the Corps of Engineers 22 and other federal statutes that may apply to Friant Dam 23 specifically, that don't apply to others. 24 MR. JACKSON: All right. Now, calling your attention 25 to the exhibit that is on the screen, Department of CAPITOL REPORTERS (916) 923-5447 6721 1 Interior 4-G, what -- this document is entitled "General 2 Information." What is its purpose, sir? 3 MR. PLOSS: These are the results of a model study 4 that we did for New Melones Reservoir using historic 5 hydrologic data. This is for the period of 1922 through 6 1992. This table of general information is just a summary 7 of some of the results out of that analysis, that model 8 run. 9 There's much more information that could be 10 derived from the modeling. We tried to show here what we 11 thought would be informative to the reader or user, what 12 information was available. 13 MR. JACKSON: All right. In your direct testimony 14 you indicated that the results of the modeling at New 15 Melones indicate that you cannot meet water quality and 16 fish flow requirements at Vernalis in many years. Is that 17 true, sir? 18 MR. PLOSS: That's correct, yes. 19 MR. JACKSON: And is this modeling run the source of 20 the information that indicates that you would not be able 21 to meet the water quality and fish flows in many years? 22 MR. PLOSS: That's correct. And this modeling 23 included the most recent drought period, and that's 24 primarily the basis for our conclusion that if we 25 experience another drought like we recently went through CAPITOL REPORTERS (916) 923-5447 6722 1 with the demands on New Melones for water quality and for 2 fish flows, need to provide to our CVP contractors that in 3 many years, especially when you get into those dry and 4 critical years, there's just simply an insufficient water 5 supply. 6 MR. JACKSON: All right. So I understand this 7 particular Exhibit 4-G, calling your attention to the 8 category "Vernalis Water Quality Compared to Standards," 9 what exactly do you mean by that category? 10 MR. PLOSS: Okay. This is -- this is the summary of 11 information out of that model depicting on here when we 12 would have deficits in meeting the water quality standards 13 at Vernalis on an annual average, when we would be short of 14 water for meeting water quality. 15 MR. JACKSON: Now, calling your attention to the last 16 line in that particular category on the general information 17 sheet 4-G where it says "Number of deficient years," and 18 the column says 37. Is that the number of years within the 19 1922 to 1992 period that you would be deficient in water 20 under the modeling run? 21 MR. PLOSS: That's the number of years that there 22 would be -- at least in this case, because the model is a 23 monthly model, so it just looks at blocks of data on a 24 monthly basis. 37-years deficient would be the number of 25 years that there would be at least one month in that year CAPITOL REPORTERS (916) 923-5447 6723 1 that we would be deficient of water for water quality. So 2 it's not the entire 12-month period, but there could be at 3 least one month in any year. 4 MR. JACKSON: So this is a 70-year period. So, 5 essentially, it would be fair to say that slightly more 6 than 50 percent of the years would be years in which you 7 would not have enough water in New Melones to meet the 8 Vernalis water quality standard in at least one month 9 during the year? 10 MR. PLOSS: Correct. 11 MR. JACKSON: And then the next category down is 12 "Bay-Delta Flow Requirements at Vernalis." What flow 13 requirements are you talking about there? 14 MR. PLOSS: I believe this, if I interpret the 15 results properly, would be the April/May flow objective. 16 MR. JACKSON: And there's an indication in the last 17 column, "Number of deficit years," that the number of years 18 in the 70-year period using the Interim Operation of New 19 Melones you would not be able to meet those standards in 60 20 of the 70 years? 21 MR. PLOSS: Correct. And that flow objective is a 22 31-day flow objective. So what would happen is in 60 of 23 the 71 years we would have short -- be short of water to 24 meet that flow objective if we relied solely on New 25 Melones. CAPITOL REPORTERS (916) 923-5447 6724 1 MR. JACKSON: All right. Now, in each of these 2 categories there is also a line that says "Maximum Annual 3 Deficit in Deficient Years in 1,000 acre-feet," that's 4 again in Government Exhibit 4-G. 5 MR. PLOSS: Correct. 6 MR. JACKSON: The maximum annual deficit, then, in 7 these runs would be 305,000 acre-feet? 8 MR. PLOSS: Correct. 9 MR. JACKSON: In a situation in which there is 10 305,000 acre-feet of shortage what do you plan to do? 11 MR. PLOSS: The purpose of this was to demonstrate 12 the inability of meeting the Water Quality Control Plan 13 flow objective out of New Melones Reservoir. I guess I 14 would say that the purpose for having these hearings and 15 looking at the analysis that was done by the State Board is 16 to determine what is going to be done in meeting these flow 17 objectives. 18 MR. JACKSON: Now, calling your attention to the 19 Bay-Delta flow requirement at Vernalis, from what 20 facilities could you potentially meet that requirement? 21 MR. PLOSS: Again, the reason for this analysis was 22 just simply to look at the ability, or inability of New 23 Melones to meet those flow objectives. If you're looking 24 at what other federal facilities could be used, that's been 25 subject to testimony here, water is available or could CAPITOL REPORTERS (916) 923-5447 6725 1 under conditions be made available from Friant Dam, from 2 San Luis Reservoir through recirculation from the 3 Delta-Mendota Canal, but those are all subject to the 4 outcome of these hearings. 5 MR. JACKSON: All right. Now, how would you do it 6 from -- as operator of the project, how would you do it 7 from San Luis, physically? 8 MR. PLOSS: We would make releases from San Luis to 9 the -- possibly to the Mendota pool, bypass water to the 10 Mendota pool then release it into the San Joaquin River. 11 MR. JACKSON: And how much of the San Joaquin River 12 lies between the Mendota pool and the Vernalis measuring 13 location in terms of miles? 14 MR. PLOSS: I don't know the river miles, what that 15 would be. It would be maybe approximately 75 miles or 16 more. 17 MR. JACKSON: All right. It would be less than the 18 number of miles in which the water would run then if you 19 released it from Friant -- 20 MR. PLOSS: Yes. 21 MR. JACKSON: -- would it not? 22 MR. PLOSS: Yes. 23 MR. JACKSON: All right. Now, from Friant how many 24 more miles would that add if the water was released from 25 Friant? CAPITOL REPORTERS (916) 923-5447 6726 1 MR. PLOSS: I don't know how many more miles. I 2 think the Mendota pool is about the halfway mark. 3 MR. JACKSON: All right. Has there been any modeling 4 to determine what water quality improvement would happen 5 along the San Joaquin River if water were released at the 6 Mendota pool from San Luis? 7 MR. PLOSS: I'm not aware of the Bureau of 8 Reclamation doing any such modeling. 9 MR. JACKSON: All right. Has the Bureau done any 10 modeling of what improvements there would be to the water 11 quality in the San Joaquin River if the Vernalis standard 12 was met from Friant? 13 MR. PLOSS: Again, I don't believe that the Bureau of 14 Reclamation has done any such modeling. And we'd have to 15 rely on what information is currently available from the 16 State Board's analysis. 17 MR. JACKSON: Calling your attention to these 18 modeling runs, did you do a series of alternatives 19 attempting to meet the Vernalis standard solely from New 20 Melones? 21 MR. PLOSS: There were several alternatives that were 22 run using New Melones prior to this to where we would try 23 to meet each of the purposes out of New Melones 24 exclusively. We would use all of the water from New 25 Melones, for example, for water quality. And then any CAPITOL REPORTERS (916) 923-5447 6727 1 water that was left would go to benefit the other purposes. 2 Similarly, we gave -- had an operation study that 3 we would use the water to meet Bay-Delta objectives 4 followed by any remaining water going for other purposes. 5 And in each case it was determined that there would be 6 insufficient water for meeting any of those exclusive 7 purposes if they were -- the full priority out of New 8 Melones. 9 MR. JACKSON: So then is it fair to conclude from 10 that that your model runs in regard to New Melones show 11 that neither the fish flow standards nor the water quality 12 standards can be met from New Melones alone and that 13 additional water sources will be necessary? 14 MR. PLOSS: That's correct. That's the conclusion 15 that Reclamation reached some years back is that there's 16 insufficient water there to meet all of the objectives all 17 of the time. 18 MR. JACKSON: All right. Then why were there not 19 alternatives run to see whether or not you could meet the 20 Vernalis water quality and fish flow standards from other 21 federal facilities in the San Joaquin? 22 MR. PLOSS: That was not the purpose of this 23 analysis. This analysis was to look at how we could come 24 up with a management plan for New Melones for meeting the 25 instream flows, for meeting the water rights, for meeting CAPITOL REPORTERS (916) 923-5447 6728 1 the CVP contractor needs out of New Melones. 2 We did in our Interim Operations Plan give 3 releases from New Melones for Bay-Delta flow requirements 4 the last priority. So we did in our analysis as a result 5 of this modeling give priority to all of those purposes 6 that can be served out of New Melones first. 7 MR. JACKSON: That's something that I didn't quite 8 understand in your testimony. You indicated that in the 9 Interim Operations Plan and the modeling that supports it 10 that you did not release any water specifically allocated 11 to Bay-Delta? 12 MR. PLOSS: It's only during the very wettest years 13 when we would have more than abundant water supply that 14 under the Interim Operations Plan any water would be 15 released for Bay-Delta. 16 MR. JACKSON: What process did Reclamation go through 17 to determine that the Bay-Delta was the last priority? 18 MR. PLOSS: Our process was looking at the 19 obligations of the New Melones Reservoir. Certainly, the 20 permits for the reservoir, the authorization as well as 21 CVPIA that we would attempt to operate New Melones 22 Reservoir to take care of the needs of that basin first. 23 MR. JACKSON: Is there a law that Reclamation 24 believes requires the Bay-Delta to have the last priority? 25 MR. PLOSS: I don't believe that there's a law that CAPITOL REPORTERS (916) 923-5447 6729 1 specifies that. 2 MR. JACKSON: Is there a regulation -- I'm sorry. 3 MR. PLOSS: No. We looked at it as a reasonable use 4 of water. That in our analysis we looked at how the needs 5 immediately out of New Melones could be met first before we 6 would try to attempt to meet the needs of the Bay-Delta. 7 MR. JACKSON: Is there a regulation that requires you 8 to subordinate the needs of the Bay-Delta to the other 9 needs in basin in your opinion? 10 MR. PLOSS: I don't believe so. 11 MR. JACKSON: Is there a written policy of the Bureau 12 of Reclamation, or the Department of the Interior that you 13 believe causes the Bay-Delta to be the last of the 14 priorities? 15 MR. PLOSS: No. 16 MR. JACKSON: You indicated that -- you used the word 17 "balancing." Is there a regulation that allows, or that 18 requires the Bureau to balance its water interests in any 19 particular way? 20 MR. PLOSS: No, there's no regulation. 21 MR. JACKSON: Does the Bureau have authority under 22 any law that you know of to balance contract uses and 23 environmental uses? 24 MR. BRANDT: Objection. Calls for a legal 25 conclusion. CAPITOL REPORTERS (916) 923-5447 6730 1 MR. JACKSON: I'm not asking him for a conclusion. 2 I'm asking him if he knows of any law which might -- not 3 how he interprets it, but does he know of one. If he 4 doesn't, he doesn't. 5 C.O. CAFFREY: I'll allow Mr. Ploss to answer the 6 question. Please, do, sir. 7 MR. PLOSS: We would view it as the law of being 8 responsible water managers. 9 MR. JACKSON: Okay. What code section is that? 10 C.O. CAFFREY: Can we have a citation? 11 MR. NOMELLINI: Look in the Bible. 12 MR. JACKSON: There is no particular law that you're 13 thinking of as you say that? 14 MR. PLOSS: No. We're obligated to operate our 15 projects in a reasonable and prudent manner. 16 MR. JACKSON: And you've used the term "reasonable 17 and prudent," where does -- where do those words come from 18 in your laws or regulations? 19 MR. PLOSS: I can't give you any specific citation, 20 but I believe you may find the term "reasonable use" 21 several places in the Water Code. 22 MR. JACKSON: Okay. Is it your view that the Bureau 23 has an authority implied by the Water Code to enable you to 24 define reasonable use? 25 MR. PLOSS: Whether or not we have -- the question CAPITOL REPORTERS (916) 923-5447 6731 1 is: Do we have authority to define -- 2 MR. JACKSON: Yes. Are you claiming some different 3 authority than any other water right permit holder to 4 determine what is reasonable in the use of water in 5 California? 6 MR. PLOSS: No. We defer to the State of California 7 for that. 8 MR. JACKSON: Now, calling your attention, again, to 9 the modeling, this maximum annual deficit in thousands 10 acre-feet of 305,000 acre-feet, that's more than the yield 11 of New Melones, isn't it? 12 MR. PLOSS: That's correct. 13 MR. JACKSON: Has the Bureau taken the position that 14 it just does not need to meet the standard? 15 MR. PLOSS: We have an obligation as a water right 16 holder in the State to fulfill our responsibilities to meet 17 the standards. 18 MR. JACKSON: Have you met the standards since the 19 standards were set in every month since the standards were 20 set? 21 MR. PLOSS: Clarify -- 22 MR. BRANDT: Objection. 23 MR. PLOSS: Clarify which standard. 24 MR. JACKSON: Yes. Have you met the Bay-Delta flow 25 requirement at Vernalis in every month since the Delta CAPITOL REPORTERS (916) 923-5447 6732 1 Accord was -- since 95-6 was established? 2 MR. PLOSS: I would have to review the record, but I 3 believe we have, yes. 4 MR. JACKSON: Why, then, if you have been able to 5 meet the standard from -- I mean, you haven't used anything 6 else other than New Melones, have you? 7 MR. PLOSS: Yes. 8 MR. JACKSON: What you have used? 9 MR. PLOSS: We've used authorities available to the 10 Department of Interior under the Central Valley Project 11 Improvement Act to acquire water. We've acquired water on 12 the San Joaquin River from other water right holders from 13 willing sellers for the purposes of meeting our flow 14 objectives. 15 MR. JACKSON: Do you have a program for meeting the 16 305,000 acre-foot shortfall in -- I guess that would be a 17 very critically dry year? 18 MR. PLOSS: We have currently a program in place 19 under the Central Valley Project Improvement Act to acquire 20 the water that's necessary to meet the flow objectives. 21 There's a program that has been proposed, referred to here 22 as the San Joaquin River Agreement. That's one of those 23 proposals that's before this Board which is an attempt to 24 fulfill the obligations of meeting the flow standards at 25 Vernalis. CAPITOL REPORTERS (916) 923-5447 6733 1 MR. JACKSON: Were you present when Mr. Steiner 2 testified in regard to the VAMP? 3 MR. PLOSS: During some portions of his testimony. 4 MR. JACKSON: Are you aware that that modeling 5 indicates that with the Vernalis Adaptive Management Plan 6 you still miss the standard in a number of years? 7 MR. O'LAUGHLIN: Objection. Vague. 8 MR. BRANDT: What standard? 9 MR. JACKSON: The Vernalis flow requirement. 10 MR. PLOSS: I'm aware that under some extreme 11 conditions that that's what the modeling would indicate, 12 that under that agreement the standards would not be met in 13 absolutely every year. The agreements does, though, 14 provide for the acquisition of additional water from 15 willing sellers that could help meet those standards in 16 those years. 17 MR. JACKSON: Has the Bureau -- does the Bureau have 18 authority not to meet the standards? 19 MR. PLOSS: I believe as I responded earlier, we 20 don't -- we have no authority not to meet the standards. 21 MR. JACKSON: Is the Bureau planning to meet the 22 standards in every month of every water year in the future? 23 MR. PLOSS: It is our intention under operating the 24 project that we will meet the standards to the best of our 25 abilities. CAPITOL REPORTERS (916) 923-5447 6734 1 MR. JACKSON: Now, to the best of your abilities does 2 that include water from San Luis and water from Friant if 3 it's necessary? 4 MR. PLOSS: That's asking for an -- I believe, an 5 opinion on what we would do under possibly some extreme 6 conditions and does get to the question of what is 7 reasonable. 8 MR. JACKSON: Well, now, I thought we'd agreed that 9 that was the Board's decision, not the Bureau's. 10 MR. PLOSS: And we would come back probably to the 11 Board and other parties and ask if that is a reasonable 12 decision. 13 MR. JACKSON: So in answer to my question: Does the 14 Bureau intend to meet the standard from Friant and San Luis 15 if it is necessary to do so? 16 MR. PLOSS: If we are, I would say, ordered to do so, 17 we will. 18 MR. JACKSON: But not unless you're ordered? 19 MR. PLOSS: Not unless we're ordered, unless that is 20 a reasonable operation. 21 MR. JACKSON: Does the Bureau intend to study the 22 alternatives of releasing water from Friant, or San Luis in 23 order to meet the Bay-Delta flow requirement at Vernalis? 24 MR. PLOSS: Not beyond those studies that have 25 already been completed by the State Board. CAPITOL REPORTERS (916) 923-5447 6735 1 MR. JACKSON: Does the Bureau intend to study meeting 2 the Vernalis water quality standard from releases at Friant 3 or from San Luis? 4 MR. PLOSS: Not at this present time beyond those 5 that have been done by the State Board. 6 MR. JACKSON: Did the VAMP -- you are a part of the 7 VAMP, the Bureau is a signatory? 8 MR. PLOSS: Yes, we are supportive. 9 MR. JACKSON: And you also I believe are one of the 10 lead agencies for NEPA? 11 MR. PLOSS: Yes. 12 MR. JACKSON: Did the Bureau study alternatives that 13 included Friant or San Luis in the VAMP study? 14 MR. PLOSS: Those were considered in the NEPA 15 process. 16 MR. JACKSON: Were they found to be feasible? 17 MR. PLOSS: I believe that those were screened -- in 18 our screening of our alternatives, those were screened out 19 as alternatives. 20 MR. JACKSON: Why, sir? 21 MR. PLOSS: I believe they were determined in our 22 screening to be an unreasonable use of water. 23 MR. JACKSON: On what basis? 24 MR. PLOSS: I don't recall all the screening criteria 25 that went into that analysis. CAPITOL REPORTERS (916) 923-5447 6736 1 MR. JACKSON: So to get a study of such a thing would 2 require the Board to order you to do one, is that what 3 you're saying? 4 MR. PLOSS: That's one way, yes. 5 MR. JACKSON: Is there any other way that would cause 6 you to study other options to the present VAMP Agreement 7 that include water releases from Friant or San Luis? 8 MR. PLOSS: I believe in looking at other 9 alternatives for meeting the water quality, those have been 10 looked at in a State Board process already. We do not feel 11 at this point that it is necessary to go back and do any 12 further analysis. 13 MR. JACKSON: Okay. Now, there was another statement 14 that you made earlier, and correct me if I'm wrong, the 15 Bureau does not recognize area of origin rights among 16 contractors; is that correct? 17 MR. PLOSS: We recognize the area of origin rights 18 under State codes determining the relationship of the water 19 rights of the Bureau of Reclamation for the Central Valley 20 Project in relationship to other water rights holders. We 21 do not consider the area of origin priority in the 22 allocation of our CVP project water. 23 MR. JACKSON: So that I understand this, when you 24 built Shasta, you used a released State filing, did you 25 not, for the water supply? CAPITOL REPORTERS (916) 923-5447 6737 1 MR. PLOSS: Yes. 2 MR. JACKSON: And when you built Trinity, you used a 3 released State filing for the Trinity division? 4 MR. BRANDT: "Released State filing"? 5 MR. JACKSON: Yeah. There were a series of State 6 filings reserving water for the counties of origin, for the 7 areas of origin. And you used those filings for your water 8 rights permits at Shasta, did you not? 9 MR. PLOSS: I'm not familiar with the specifics of 10 those filings. 11 MR. JACKSON: Do you know whether or not you used a 12 State filing at Trinity? 13 MR. PLOSS: State filings, yes. 14 MR. JACKSON: Did you use a State filing at Folsom? 15 MR. PLOSS: I believe so. 16 MR. JACKSON: Did you use a State filing at Friant? 17 MR. PLOSS: I believe so, yes. 18 MR. JACKSON: Did you use a State -- well, we saw the 19 one on the wall for New Melones, right, you used one for 20 New Melones? 21 MR. PLOSS: Yes. 22 MR. JACKSON: Did you use State filings for San Luis, 23 for the Bureau's portion of San Luis? 24 MR. PLOSS: Yes. 25 MR. JACKSON: Does the Bureau have a policy in regard CAPITOL REPORTERS (916) 923-5447 6738 1 to Water Code Section 10505 that it recognizes the county 2 of origin law? 3 MR. PLOSS: Could you repeat that? 4 MR. JACKSON: Does the Bureau have a policy that it 5 recognizes Water Code Section 10505, the county of origin 6 law? 7 MR. PLOSS: We have a policy that we are subject to 8 the State statutes for our water rights. Other than a 9 draft policy that was prepared several months ago on area 10 of origin, we do not have a final or formal policy within 11 the Bureau of Reclamation. 12 MR. JACKSON: Okay. 13 MR. PLOSS: Could I go back? I responded hastily on 14 the filing of a permit for San Luis. I don't believe there 15 is a permit on San Luis. 16 MR. JACKSON: You do not believe that San Luis has a 17 permit? 18 MR. PLOSS: No. I believe that's under our -- 19 covered under some of the other facilities. 20 MR. JACKSON: What facility -- what permit do you 21 believe covers the operation of San Luis? 22 MR. PLOSS: I wouldn't know. I'd have to go back and 23 find that for you. 24 MR. JACKSON: Would it be the Trinity division, they 25 were built at the same time? CAPITOL REPORTERS (916) 923-5447 6739 1 MR. PLOSS: Part of the San Luis is with the Trinity, 2 I am aware of that. 3 MR. JACKSON: So for the operation of the San Luis we 4 would look at the Trinity permits? 5 MR. PLOSS: I'm not certain. 6 MR. JACKSON: Okay. Now, calling your attention to 7 the situation in the New Melones area, how did you 8 determine the priority system that you enumerated in your 9 direct testimony? What process did you go through? 10 MR. PLOSS: We looked at the requirements that are 11 either by authorizations, by permit conditions, or by 12 contract and how water would be prioritized out of New 13 Melones. As I stated, the first priority went to Oakdale 14 and South San Joaquin because they have prior water rights. 15 MR. JACKSON: All right. Let's stop there. You do 16 believe that in your priority system at New Melones that 17 the first priority is Oakdale and South San Joaquin? 18 MR. PLOSS: Correct. 19 MR. JACKSON: Why is that, sir? 20 MR. PLOSS: Because they have senior water rights to 21 the Bureau at New Melones. 22 MR. JACKSON: All right. And so in every 23 situation -- I mean there's nothing special about Oakdale 24 and San Joaquin, is there? 25 MR. O'LAUGHLIN: Objection. CAPITOL REPORTERS (916) 923-5447 6740 1 MR. BRANDT: Objection. 2 MR. JACKSON: Well, just because they're so charming 3 you don't treat them any differently than anyone else who 4 has water rights senior to the CVP? 5 MR. PLOSS: They are treated different, because 6 within that there's also a contract, an agreement with 7 Oakdale and South San Joaquin on how we would operate to 8 meet their senior water rights. 9 MR. JACKSON: Then, you -- essentially, the only 10 reason they're senior is because of the contract? 11 MR. PLOSS: They are senior because of their water 12 rights. You asked me if we treat them different than other 13 senior water right holders, and we do because their source 14 of water was at the same location prior to the construction 15 of New Melones. And so the contract specifies a quantity 16 of water that recognizes their historic rights and how we 17 will operate New Melones in meeting their rights. 18 MR. JACKSON: All right. And so if others in the 19 Sacramento Valley, or elsewhere in the San Joaquin have 20 senior water rights to the Central Valley Project, you 21 would rank them the same way in the priority that they come 22 before your fish obligations? 23 MR. PLOSS: We have contracts with a number of 24 parties in the Sacramento Valley. We call those the water 25 right Settlement Contractors, recognizing their senior CAPITOL REPORTERS (916) 923-5447 6741 1 water rights to Shasta. We also have contracts with the 2 San Joaquin Exchange Contractors recognizing their rights 3 for water on the San Joaquin River. 4 MR. JACKSON: And so in those situations with the 5 Settlement Contractors and the Exchange Contractors 6 following this priority through they would clearly have 7 rights with a higher priority than the Bureau's obligation 8 for fish and water quality flows? 9 MR. PLOSS: Yes. 10 MR. JACKSON: Thank you. Now, would that also be 11 true of the contract that Trinity County has on the Trinity 12 River? 13 MR. PLOSS: I'm not acquainted with a contract that 14 Trinity County may have on the Trinity River. 15 MR. JACKSON: Okay. Now, does the Bureau have any -- 16 does the Bureau differentiate amongst its contractors based 17 upon whether or not they're in-basin, or whether they are 18 exporters? 19 MR. PLOSS: We only differentiate based on our 20 ability to convey the water. 21 MR. JACKSON: Would you explain that for me? I don't 22 understand that. 23 MR. PLOSS: Comparison of agricultural contractors, 24 CVP agricultural contractors in the Sacramento Valley to 25 CVP agricultural contractors on the west side of the San CAPITOL REPORTERS (916) 923-5447 6742 1 Joaquin Valley, we treat them equal with regard to an 2 allocation of Central Valley Project water. 3 The only differentiation may be our ability, 4 physically ability or constraints under other standards, 5 such as the Bay-Delta standards, to convey the water to 6 those contractors. In other words, we may be able to 7 convey water much easier to parties in the Sacramento 8 Valley than we can on the west side of the San Joaquin 9 because of pumping restrictions, or Delta outflow 10 requirements, things like that. 11 MR. JACKSON: So that I understand it correctly, 12 then, the Settlement Contractors in the Sacramento Valley 13 have no better right in terms of priority of the water than 14 the west side of the San Joaquin? 15 MR. PLOSS: No. 16 MR. JACKSON: That's not true? 17 MR. PLOSS: CVP water contractors are different than 18 Settlement Contractors. 19 MR. JACKSON: Right. 20 MR. PLOSS: I don't want to confuse you. We've got 21 water right Exchange Contractors and we have CVP water 22 service contractors. 23 MR. JACKSON: So we're through with the Settlement 24 Contractors and the Exchange Contractors and their rights 25 are clearly a priority over the CVP contractors? CAPITOL REPORTERS (916) 923-5447 6743 1 MR. PLOSS: Correct. 2 MR. JACKSON: And they will get all of their water to 3 100 percent before the contractors get any of their water? 4 MR. PLOSS: Or as specified in their settlement 5 contracts. 6 MR. JACKSON: All right. Now, in regard to the 7 contractors themselves, they're all on equal footing except 8 for any conveyance difference? 9 MR. PLOSS: Correct. 10 MR. JACKSON: Or any fishery's difference? 11 MR. PLOSS: Yes. We would under certain hydrology, 12 or an example of hydrology, we may be able to allocate -- 13 we could allocate a full-water supply to agricultural water 14 service contractors north of the Delta and south of the 15 Delta absent meeting other fishery requirements, or say 16 standards within the Delta that may limit our ability to 17 pump water. 18 MR. JACKSON: Okay. So let's talk a little about the 19 pumping of water. One of the other things that you said in 20 your direct testimony is that you made no allocations from 21 New Melones for X2; is that correct? 22 MR. PLOSS: Yes. 23 MR. JACKSON: And I believe you said that was because 24 you had determined from experience that the best way to 25 manage X2 is by management of the export pumps? CAPITOL REPORTERS (916) 923-5447 6744 1 MR. PLOSS: Correct. 2 MR. JACKSON: Would you explain to me why it's better 3 to manage the pumps than it would be to supply water for 4 X2? 5 MR. PLOSS: It provides us the ability, first, to 6 cause the location of X2 to respond much more rapidly by 7 adjusting the export pumping. Also, because of other 8 constraints elsewhere in the system, where it might be for 9 conservation of storage, or instream flows in the 10 tributaries, it, again, would be an unreasonable use of 11 water to withdraw water from storage for maintaining X2. 12 MR. JACKSON: So that I understand that: When you 13 say unreasonable use of water, you're saying in your mind? 14 MR. PLOSS: I'll give you an example. 15 MR. JACKSON: Sure. 16 MR. PLOSS: It's more prudent, though it's not 17 desirable, it's more prudent to adjust our export pumping 18 as a way of maintaining the location of X2 as compared to 19 releasing water say from Shasta Dam and wait for that water 20 to travel down to the Delta. There's a time lag involved. 21 And there's also a need for the project to maintain storage 22 levels in Shasta Reservoir for meeting temperature control 23 objectives for endangered species later in the season. 24 So we don't care to take that water out of Shasta, 25 for example, to try and maintain X2 so we could pump water. CAPITOL REPORTERS (916) 923-5447 6745 1 A similar situation would take place at Folsom Dam where 2 we're trying to maintain levels in Folsom sufficient to 3 maintain instream flows on the lower American River. And 4 it's not desirable to release large quantities of water out 5 of Folsom to maintain X2 at a time that we're trying to 6 pump water. So the prudent operation is to adjust our 7 export pumping. 8 MR. JACKSON: And that's not based upon any prior -- 9 excuse me. That's not based upon any preference, or 10 priority. That's simply based upon the ability to 11 accomplish the end result, which is to have X2 in a 12 particular place? 13 MR. PLOSS: It's based on our ability to maintain X2 14 in a certain place, but also we look at the water supply on 15 an annual basis of how we can optimize the total water 16 supply in the Central Valley Project to meet all of the 17 purposes of the project, make delivers to contractors, to 18 the water right settlement contractors, the water service 19 contractors and to meet all of our other obligations of the 20 standards as well as endangered species. 21 So we look at it almost as a 12-month operation. 22 If we make the wrong decision this month it's going to hurt 23 us down the road, or it could hurt a species down the road. 24 MR. JACKSON: So all things considered, your 25 experience since you've been there in --I think you said CAPITOL REPORTERS (916) 923-5447 6746 1 1993? 2 MR. PLOSS: Since '93. 3 MR. JACKSON: Is that all things equal in that 4 circumstance, it's either simply better to drop exports in 5 situations in which you need quick response for 6 environmental reasons than it is to send water from Shasta 7 or Folsom? 8 MR. PLOSS: Right. And that allows us to conserve 9 water for needs during other periods of the year. 10 MR. JACKSON: All right. Now, in your determination 11 of how to deal with X2, do you consider the difference that 12 in-basin water uses have in terms of return flow as 13 compared to export uses which do not return any flow? 14 MR. PLOSS: During the periods of the month that we 15 are trying to operate the project to maintain X2 16 conditions, the quantities of return flows from exports is 17 not considered, it's not a major factor. In-basin return 18 flows are factored into our daily operations. 19 MR. JACKSON: Some of that water is not consumptively 20 used and helps to meet other people's water needs and also 21 instream needs in streams and in the Delta? 22 MR. PLOSS: Correct. And this is most noticeable in 23 the Sacramento Valley where we, in fact, do a -- something 24 like a mass balance on a daily basis where we determine 25 both the accretions and the depletions in the Sacramento CAPITOL REPORTERS (916) 923-5447 6747 1 Valley. So return flows are taken into account there. 2 MR. JACKSON: All right. Now, going back to your 3 earlier testimony in regard to water from the Friant unit, 4 you indicated that it was your opinion that it was 5 impractical to release water from there because of 6 conveyance loss; is that correct? 7 MR. PLOSS: Yes. 8 MR. JACKSON: Is that your opinion? 9 MR. PLOSS: Yes. 10 MR. JACKSON: And you indicated that to support that 11 opinion that between Friant and Vernalis about 50 percent 12 is the number I wrote down here, is lost to groundwater? 13 MR. PLOSS: That's probably the extreme under certain 14 hydrologic conditions. If water is being released when 15 we're under a dry hydrologic condition, we could expect to 16 lose as much as 50 percent of that water. 17 MR. JACKSON: And that water wouldn't necessarily be 18 lost, would it? 19 MR. PLOSS: No. 20 MR. JACKSON: I mean it -- 21 MR. PLOSS: It would be lost to the immediate need. 22 MR. JACKSON: Okay. It goes into the groundwater 23 basin? 24 MR. PLOSS: Correct. 25 MR. JACKSON: And would fill up that space for use by CAPITOL REPORTERS (916) 923-5447 6748 1 pumpers, essentially? 2 MR. PLOSS: That's a possible use, yes. 3 MR. JACKSON: So it would be lost to the Central 4 Valley Project, but not necessarily to water users in 5 California? 6 MR. PLOSS: Correct. 7 MR. JACKSON: Would you describe the Bureau's control 8 over its contractors for me? What authority do you have 9 over the contractors? 10 MR. BRANDT: Objection. Vague. 11 MR. JACKSON: All right. I'll get -- 12 MR. O'LAUGHLIN: Assumes facts not in evidence. 13 C.O. CAFFREY: It's vague and it assumes facts not in 14 evidence are the remarks so far, Mr. Jackson. 15 MR. JACKSON: Well -- 16 C.O. CAFFREY: But I'm going to allow the question. 17 MR. JACKSON: You can allow the question, or I can 18 make it a lot more pointed. 19 C.O. CAFFREY: Go ahead, be my guest. 20 MR. JACKSON: Great. Is the Bureau authorized to do 21 examinations of contractors for beneficial use? 22 MR. PLOSS: I'm not aware of anything specifically 23 provided in our contracts, nor am I aware of any such 24 examinations taking place. 25 MR. JACKSON: Is the Bureau authorized to do CAPITOL REPORTERS (916) 923-5447 6749 1 examinations of their contractors for reasonable use? 2 MR. PLOSS: Again, there's nothing in the contracts, 3 nor have we specifically carried out any examinations. I 4 can't give you anymore on that. 5 MR. JACKSON: Is the Bureau aware of any unreasonable 6 uses by their contractors? 7 MR. PLOSS: That's an area that I'm not involved in. 8 I couldn't give you an answer. 9 MR. JACKSON: All right. Is the Bureau authorized to 10 examine the compliance of their contractors with water 11 quality standards? 12 MR. PLOSS: I'm not aware of any specific contract 13 language to that. 14 MR. JACKSON: Now, I'd like to call your attention to 15 Central Delta Water Authority's Number 23. I believe you 16 have it right there in front of you. It's also USBR 17 Exhibit Number 2. 18 MR. BRANDT: But to what? 19 MR. JACKSON: But to what, I don't know. 20 MR. BRANDT: Some other -- 21 MR. JACKSON: You were asked a number of questions by 22 Mr. Nomellini about this document; is that correct? 23 MR. PLOSS: Yes, that's correct. 24 MR. JACKSON: I'd like to ask you a few questions 25 about the document. The document has attached to it an CAPITOL REPORTERS (916) 923-5447 6750 1 Exhibit A, which is a plan of study for the Stanislaus 2 River fishery dated April 1987. Are you familiar with that 3 plan of study, sir? 4 MR. PLOSS: I have not reviewed it, no. I'm aware of 5 its existence. 6 MR. JACKSON: Okay. Was any of that ever done? 7 MR. PLOSS: It's underway. Circumstances controlled 8 performance of these studies. With this document taking 9 affect in 1987 we entered the drought. There was -- as 10 I've been informed, there was insufficient water on the New 11 Melones -- on the Stanislaus River to adequately carry out 12 the studies that are necessary within this plan. 13 Many of those studies are underway now, as we 14 testified to. One of those that we talked about earlier in 15 previous testimony was the temperature studies that are 16 being done. 17 MR. JACKSON: Okay. And the temperature study was -- 18 it was indicated in the document that it was to begin that 19 year, correct? 20 MR. PLOSS: Correct. 21 MR. JACKSON: And how long does it take? 22 MR. PLOSS: Again, the way we can -- the way the 23 temperature studies would be conducted would be monitoring 24 within the reservoir and the river, developing the 25 necessary models and then trying to replicate the results CAPITOL REPORTERS (916) 923-5447 6751 1 of the models with operations to verify them. Because of 2 the drought conditions, that could not be carried out. 3 We have -- within Reclamation we do have a 4 temperature model to conduct studies on the Stanislaus and 5 New Melones. We're in the process now with Oakdale 6 Irrigation District, Fish and Wildlife, Department of Fish 7 and Game, Stockton East Water District and many others in 8 developing a refined model. So those studies are 9 continuing to date. 10 MR. JACKSON: All right. I'd like to call your 11 attention to Page 6 of Appendix A to the CW -- or Central 12 Delta Water Agency's Exhibit 23. And it has in it in the 13 first paragraph some specific objectives of the Stanislaus 14 River fishery study. Do you see those, sir? 15 MR. PLOSS: Yes. 16 MR. JACKSON: Number 1 is identification of 17 acceptable flow regimes for salmon spawning, juvenile 18 production and growth and outmigration. Has that been done 19 yet? 20 MR. PLOSS: Some studies have been done. As I 21 understand it though, because of the low-flow conditions, 22 those studies are still ongoing as hydrologic conditions 23 have been changing, so we can collect more data. So they 24 are ongoing. 25 MR. JACKSON: Have we identified acceptable flow CAPITOL REPORTERS (916) 923-5447 6752 1 regimes? 2 MR. PLOSS: We have flow regimes that we are 3 operating to today under this agreement as well as CVPIA. 4 I would expect that as all the studies are completed those 5 flow regimes will be modified. 6 MR. JACKSON: Okay. And we've been monitoring the 7 annual spawning escapement? 8 MR. PLOSS: That has been carried out, yes, by 9 Department of Fish and Game and U.S. Fish and Wildlife 10 Service. 11 MR. JACKSON: And we have evaluated the available 12 spawning habitat? 13 MR. PLOSS: There has been some work done on that. 14 MR. JACKSON: And we've evaluated operation scenarios 15 at New Melones, Tulloch and Goodwin? 16 MR. PLOSS: That has been done to some extent in 17 developing the flow regimes that we're operating to today. 18 We've also developed the Interim Operations Plan. We're 19 now in the process of developing a long-term operation 20 plan, I guess. 21 MR. JACKSON: All right. And the integration of the 22 biological data with the BOR temperature and water quality 23 studies are awaiting the temperature study; is that right? 24 MR. PLOSS: We have an existing temperature model 25 that is on a monthly time step. I've been informed that CAPITOL REPORTERS (916) 923-5447 6753 1 the newer model that's under development now will be a 2 daily time step model. So it will be integrated much 3 closer to our operations at New Melones. 4 MR. JACKSON: Okay. And, then, we were to integrate 5 the tributary data with existing movement and survival 6 studies in the estuary and San Francisco Bay. Has that 7 been done? 8 MR. PLOSS: I believe much of that work has been done 9 and more is underway. 10 MR. JACKSON: And these studies will be coordinated 11 with the New Don Pedro Project studies and with what's 12 described as general problems, straying of San Joaquin 13 salmon; is that right? 14 MR. PLOSS: I believe so. Those are being conducted 15 by the Department of Fish and Game and U.S. Fish and 16 Wildlife Service. 17 MR. JACKSON: Now, the Tuolumne River studies were 18 done during the drought, were they not? 19 MR. PLOSS: I believe there were some studies done. 20 I don't know whether they were completed, what phase they 21 were in. I will add that there was -- to the extent that 22 those studies were completed, I believe they've developed 23 some new flow regimes. 24 MR. JACKSON: Okay. Now, have those kind of studies 25 been done for the San Joaquin River below Friant? CAPITOL REPORTERS (916) 923-5447 6754 1 MR. PLOSS: I'm not aware of what studies may have 2 been done below Friant. 3 MR. JACKSON: Okay. Has there been money 4 appropriated by congress for these studies? 5 MR. PLOSS: Which studies? 6 MR. JACKSON: Any of the studies that we just went 7 through, the temperature study, the integration study, the 8 spawning escapement study, the habitat study, or the flow 9 regime study? 10 MR. PLOSS: There was money appropriated for these 11 studies in past years. And we have funding available in 12 this year to continue that work. 13 MR. JACKSON: Okay. Do you have any estimate of what 14 will be necessary in terms of funding to finish the work? 15 MR. PLOSS: I've learned not to try to estimate how 16 much money it takes to do a study. It always take twice as 17 much as I figure. 18 MR. JACKSON: All right. Now, calling your attention 19 to a discussion that we've sort of -- has been present in a 20 lot of the cross-examination, which is a question of what's 21 in-basin and out of basin on the Stanislaus River. 22 Mr. Gallery showed you a map of what was in the 23 basin. Is that the way you define the Stanislaus basin? 24 MR. PLOSS: That is the Secretary's determination of 25 what the basin plan would be, yes. CAPITOL REPORTERS (916) 923-5447 6755 1 MR. JACKSON: Well, I noticed that it was your 2 position that Central San Joaquin Water Conservation 3 District and East Stockton Water District were outside of 4 the basin on the map that Mr. Gallery showed you. Is that 5 correct? 6 MR. PLOSS: They're outside the hydrologic basin, but 7 within the basin designated by the Secretary of Interior. 8 MR. JACKSON: All right. Now, when you -- do you 9 want to withdraw that and say it again? 10 MR. PLOSS: Okay. Those have been designated within 11 the plan for service from New Melones. They are outside 12 the hydrologic basin of the Stanislaus River. 13 MR. JACKSON: Now, what does that mean to you that 14 they're outside of the hydrologic basin of the Stanislaus 15 River in terms of their priority for water? 16 MR. BIRMINGHAM: I'm going to object to the question 17 on the grounds that it's vague and ambiguous. 18 C.O. CAFFREY: I'm having a little trouble 19 understanding what you're getting at there myself, 20 Mr. Jackson. 21 MR. JACKSON: I want to know if they treat districts 22 differently based upon whether they are inside the 23 hydrologic basin or outside the hydrologic basin. 24 C.O. CAFFREY: Okay. All right. Let's consider that 25 a reposing of the question. CAPITOL REPORTERS (916) 923-5447 6756 1 MR. JACKSON: Sure. 2 MR. PLOSS: Okay. We treat those districts as they 3 have been designated by the authorization of the project. 4 And that is that they can receive water from the Central 5 Valley Project. And as in-basin needs develop, their 6 supplies will diminish. 7 MR. JACKSON: Why? 8 MR. PLOSS: That is the way the project was 9 formulated and authorized. 10 MR. JACKSON: All right. Now, I want to ask you the 11 same question: Friant Dam is located on the San Joaquin 12 River and is within the basin of the San Joaquin. Is that 13 correct? 14 MR. PLOSS: Correct. 15 MR. JACKSON: The Friant/Kern canal serves areas that 16 are not in the hydrologic basin; is that correct? 17 MR. PLOSS: That is correct. 18 MR. JACKSON: Are those areas outside of the 19 hydrologic basin treated differently by the Bureau of 20 Reclamation in the same way that you just described the 21 Stanislaus situation where in-basin uses could take water 22 back? 23 MR. PLOSS: All the water service contractors along 24 the Friant/Kern canal, whether they are in the hydrologic 25 basin or outside the hydrologic basin, are treated the same CAPITOL REPORTERS (916) 923-5447 6757 1 as authorized. 2 MR. JACKSON: Why? 3 MR. PLOSS: That's the way the project was formulated 4 and authorized. 5 MR. JACKSON: So there is no difference from the 6 Bureau of Reclamation's point of view if water users are 7 inside the hydrologic basin, or if they are outside the 8 hydrologic basin? 9 MR. BIRMINGHAM: Objection. Ambiguous. 10 MR. BRANDT: Vague. 11 MR. JACKSON: Is there any difference -- 12 MR. BIRMINGHAM: I think Mr. Jackson needs to clarify 13 which basin he's talking about. 14 MR. JACKSON: I'm talking about the San Joaquin basin 15 at this point. Is there any difference in the Bureau of 16 Reclamation's treatment of land within the San Joaquin 17 basin and land outside the San Joaquin basin in terms of 18 whether or not the in-basin portion of it has the ability 19 to expand its use at the expense of the out-of-basin 20 portion? 21 MR. PLOSS: All Central Valley Project water service 22 contractors are treated equal unless otherwise specified by 23 congress. 24 MR. JACKSON: Now, if the California State law treats 25 them differently, do you believe that there's something CAPITOL REPORTERS (916) 923-5447 6758 1 that has preempted the California law in that regard? 2 MR. PLOSS: To my knowledge California State law has 3 not made a determination on how we allocate our water from 4 the Central Valley Project to our Central Valley Project 5 contractors. 6 MR. JACKSON: You would agree with me that the Tulare 7 Lake basin and much of the Kern portion of the Friant/Kern 8 delivery system is outside of the San Joaquin hydrologic 9 basin? 10 MR. PLOSS: Yes. 11 MR. JACKSON: I have no further questions. 12 C.O. CAFFREY: All right. Thank you, Mr. Jackson. 13 Does the staff have any questions? 14 MS. LEIDIGH: Yes. 15 C.O. CAFFREY: Ms. Leidigh. 16 ---oOo--- 17 CROSS-EXAMINATION OF STOCKTON EAST WATER DISTRICT 18 BY STAFF 19 MS. LEIDIGH: I had a few questions. Just to 20 follow-up on some questions that were asked earlier today, 21 with respect to the action of the Secretary of Interior in 22 1981 to establish the service area for New Melones -- and 23 you testified about that earlier today, correct? 24 MR. PLOSS: Yes. 25 MS. LEIDIGH: Did the Secretary of Interior make that CAPITOL REPORTERS (916) 923-5447 6759 1 determination on his own pursuant to federal law? I mean 2 was that based at all on state law, or was it just based on 3 federal law? 4 MR. PLOSS: I believe it was based on whatever 5 factors were available for him to consider along with input 6 from appropriate staff on how both state and federal law 7 may be applied. 8 MS. LEIDIGH: Is the service area that was designated 9 in the 1981 decision by the Secretary of Interior entirely 10 within the place of use of the permits that are held by the 11 Bureau of Reclamation? 12 MR. PLOSS: I believe so. 13 MS. LEIDIGH: Are Stockton East and Central San 14 Joaquin Water Conservation District within the priority 15 area of the service district? Are they within the service 16 district that was designated? 17 MR. PLOSS: To my knowledge, yes. 18 MR. BRANDT: Let me just -- 19 MS. LEIDIGH: Can you clarify that, Mr. Brandt? 20 MR. BRANDT: Maybe if I could help frame the 21 question. There's different terms used, there's the basin. 22 Then there is service areas both within the basin and 23 service areas outside the basin. 24 MS. LEIDIGH: Okay. 25 MR. BRANDT: So that's why when you use the word CAPITOL REPORTERS (916) 923-5447 6760 1 "service area" it has certain meanings. And it can include 2 both or either. And I'm not sure whether you were trying 3 to ask in-basin or out-of-basin. 4 MS. LEIDIGH: Okay. What I want to get at is that 5 there are basically two areas, are there not, that are 6 included within the area that the Bureau will serve from 7 New Melones Reservoir, one of them has priority over the 8 other; is that correct? 9 MR. PLOSS: That is correct. 10 MS. LEIDIGH: Okay. Are Stockton East and Central 11 San Joaquin within the priority area? 12 MR. PLOSS: They are outside the priority area, but 13 under the finding by the Secretary there will be a portion 14 of water, a buying of water that will be delivered to 15 Central San Joaquin Water Conservation District on a firm 16 basis. 17 MS. LEIDIGH: Okay. On a firm basis, not on an 18 interim basis? 19 MR. PLOSS: Right. 20 MS. LEIDIGH: What portion of that that's delivered 21 to Central San Joaquin would be on a firm basis? 22 MR. PLOSS: It's designated to be 49,000 acre-feet. 23 I don't recall what their total contract is. I thought 24 their contract was about 80,000 acre-feet. 25 MS. LEIDIGH: Okay. CAPITOL REPORTERS (916) 923-5447 6761 1 MR. PLOSS: So the balance is not firm. 2 MS. LEIDIGH: Is that because part of Central San 3 Joaquin service area is within the priority area? 4 MR. PLOSS: I believe it's outside the priority area. 5 But based on the feasibility of the project that was a 6 determination made by the Secretary to allow that firm 7 supply. 8 MS. LEIDIGH: Okay. If you had additional contracts 9 in the future within the priority area, would some of the 10 interim water no longer be available outside of the 11 priority area? 12 MR. PLOSS: That would be the expectation that as 13 contracts would come on line and develop within that 14 priority area, the nonfirm supplies outside that area would 15 diminish. 16 MS. LEIDIGH: Okay. Is the Stockton East contract 17 entirely firm water? 18 MR. PLOSS: Yes. 19 MS. LEIDIGH: Okay. Do you believe that the 20 Secretary of the Interior's determination is an expression 21 of the intention of congress? 22 MR. PLOSS: I don't think I can judge that. 23 MS. LEIDIGH: In other words, was that an 24 interpretation of what congress meant under the New Melones 25 Authorizing Act? CAPITOL REPORTERS (916) 923-5447 6762 1 MR. PLOSS: I believe that was one of the 2 considerations when they made that determination. 3 MS. LEIDIGH: Okay. Was there any legal challenge to 4 the Secretary of Interior's decision in 1981? 5 MR. PLOSS: I believe there was a number of legal 6 challenges surrounding the New Melones Project. And I 7 don't know specifically all of them, or whether this 8 decision had any legal challenge. 9 MS. LEIDIGH: Okay. So you're not aware of whether 10 this specific decision was challenged, do you? 11 MR. PLOSS: No, I'm not aware. 12 MS. LEIDIGH: Okay. I think that's all I have. 13 C.O. CAFFREY: All right. Thank you, Ms. Leidigh. 14 Any questions from the Board Members -- 15 MR. HOWARD: Mr. Caffrey? 16 C.O. CAFFREY: I'm sorry, Mr. Howard. Go ahead. 17 MR. HOWARD: In a previous question I believe you 18 indicated that the Bureau believes that the interim 19 Stanislaus operation is a reasonable operation for New 20 Melones Reservoir; is that correct? 21 MR. PLOSS: By the nature that it's an Interim 22 Operation Plan, yes. Under current conditions and 23 requirements it is the most reasonable approach to 24 operating the reservoir at this time. 25 MR. HOWARD: Does the Bureau have any position CAPITOL REPORTERS (916) 923-5447 6763 1 whether or not its water rights permits should be amended 2 to be consistent with the interim Stanislaus operation? 3 MR. PLOSS: I guess we would believe that our Interim 4 Operation Plan is consistent with the permit conditions. 5 We are in the process of doing long-term studies in coming 6 up with a long-term plan. We will have to revisit maybe 7 the permits and the conditions based on the outcome of 8 those long-term studies. 9 MR. HOWARD: Your interim Stanislaus plan indicated 10 that over 50 percent of the years there would not be 11 compliance with the Vernalis water quality objective. In 12 light of that fact, do you still believe that the interim 13 Stanislaus operation is consistent with the New Melones 14 permits? 15 MR. PLOSS: That is a result of modeling studies that 16 indicate that. Likewise, we don't meet all the fish flow 17 requirements in all years, nor do we meet all of our 18 contracts in all years. That's the reason we have an 19 interim operation now that was developed through a 20 stakeholder process. And that's the reason we're going 21 through long-term studies now to come up with a long-term 22 operation plan again using a stakeholder process so that we 23 can satisfy the needs of those parties that depend on New 24 Melones. 25 MR. HOWARD: There are three water quality objectives CAPITOL REPORTERS (916) 923-5447 6764 1 in the interior Delta. One on the San Joaquin River at 2 Brant Bridge and two on the Old River. Are you aware of 3 those objectives? 4 MR. PLOSS: I'm aware of them. 5 MR. HOWARD: A note attached to those objectives in 6 the water control plan it says, 7 (Reading): 8 "That if a three-party contract has been 9 implemented among the Department, the Bureau and 10 South Delta Water Agency that contract will be 11 reviewed prior to implementation of the 12 objectives. And after considering the needs of 13 other beneficial uses, revisions will be made to 14 the objectives and the locations noted." 15 Is the Bureau still working towards -- or working 16 towards a contract with South Delta Water Agency with 17 respect to the issues raised in this note? 18 MR. PLOSS: We've been in negotiations for a number 19 of years with the other two parties. Currently those 20 negotiations have been suspended for a number of reasons. 21 Some of those reasons related to this process as well as 22 the CalFed process, that there may be other actions that 23 take place here or elsewhere that will cause us to go back 24 and revisit that. So there's been negotiations underway. 25 Right now they're suspended. CAPITOL REPORTERS (916) 923-5447 6765 1 MR. HOWARD: So at present you'd have no idea of a 2 timeline in which such negotiations might come to fruition? 3 MR. PLOSS: No, some of the other actions that are 4 underway like the Interim South Delta Program and some of 5 the Bay-Delta activities may change that. I have no idea 6 what the timeline could be. 7 MR. HOWARD: If the Bureau were to be held 8 responsible, at least, in part for meeting these objectives 9 in the interior South Delta, does the Bureau have any plan 10 as to how such objectives might be met? 11 MR. PLOSS: We haven't looked at the plan, how we'd 12 meet those depending the outcome here. 13 MR. HOWARD: Under the Stanislaus Interim Operations 14 Plan there's releases -- a limit on releases from Goodwin 15 Dam to the Stanislaus River of 1500 csf, except for flood 16 control purposes. Is that correct? 17 MR. PLOSS: That's correct. 18 MR. HOWARD: What's the basis for that 1500 csf 19 limitation? 20 MR. PLOSS: This comes from a lawsuit with the 21 landowners along the Stanislaus River that was settled in 22 the Ninth Circuit Court of Appeals. Out of that, direction 23 was given to us by the Court of Appeals to conduct an 24 operations study along the Stanislaus River to determine 25 what releases could be made that were nondamaging to the CAPITOL REPORTERS (916) 923-5447 6766 1 lands along the river. Damage was presumed to be seepage 2 damage to the orchards along the river. 3 I believe there was about two years of studies 4 that were conducted. We developed an operating plan that 5 would then limit our releases to 1500 csf at Ripon, which 6 equates to about 1200 csf at Goodwin and that's what we're 7 operating to. 8 MR. HOWARD: So the 1500 csf limit is predicated upon 9 a settlement between the Bureau and the people who you were 10 in litigation with not a court order? 11 MR. PLOSS: We were ordered to do the study, develop 12 an operating plan and report that back to the court. We 13 did so and that is the operating plan that we're operating 14 to. I believe the order was to develop a plan and operate 15 to it. 16 MR. HOWARD: I had an area of origin question and I 17 think you've gotten a lot of those. I know there's at 18 least one part that I wasn't quite sure about yet. 19 MR. PLOSS: I'm from Illinois, is that an area of 20 origin? 21 MR. HOWARD: In response to some questions you 22 testified that area of origin statutes give priority to 23 someone seeking a water right in a basin where the Bureau 24 operates, but the Bureau does not allocate diversions among 25 its contractors -- deliveries, rather, among its CAPITOL REPORTERS (916) 923-5447 6767 1 contractors based on priorities established by area of 2 origin. Is that true? 3 MR. PLOSS: That's correct. We treat, again, all of 4 our CVP water service contractors with equal priority 5 unless there's other maybe regulatory limitations to that, 6 such as meeting biological opinions, or something that may 7 constrain our ability to convey water to them. 8 MR. HOWARD: Does the Bureau believe that area of 9 origin statutes imposes any obligation on the Bureau to 10 initiate a water supply contract upon request of a party 11 located in a basin where the Bureau operates? 12 MR. BIRMINGHAM: Objection. Calls for a legal 13 conclusion. 14 MR. HOWARD: If you know. 15 C.O. CAFFREY: Mr. Jackson? 16 MR. JACKSON: Yeah, he's asking for the Bureau's 17 policy. I didn't hear him ask for a legal conclusion, 18 "Does the Bureau?" Do they have a policy? 19 C.O. CAFFREY: Mr. Ploss, I'm going to instruct you 20 to answer the question if you can. 21 MR. PLOSS: Area of origin does not require us to 22 enter into a contract with a party seeking a water right. 23 As I understand the statute, area of origin would give 24 someone seeking a water right priority over Reclamation's 25 water rights. We're not required to enter into a contract CAPITOL REPORTERS (916) 923-5447 6768 1 because of area of origin, unless we have entered into some 2 type of settlement agreement in advance. 3 MR. HOWARD: Thank you. That's all. 4 C.O. CAFFREY: Any other questions from staff? 5 Anything from the Board Members? Mr. Stubchaer. 6 ---oOo--- 7 CROSS-EXAMINATION OF STOCKTON EAST WATER DISTRICT 8 BY THE BOARD 9 C.O. STUBCHAER: Just one question. Mr. Ploss, 10 there's been a lot of discussion about treating CVP 11 contractors equally. And does that include interim 12 contracts, CVP contractors under the definition of "equal"? 13 MR. PLOSS: By the nature of their contracts those 14 are for interim supplies under whatever conditions are in 15 those contracts. And so if you compare two contractors, 16 one with an interim contract versus one with a permanent 17 contract or a firm supply, that with the firm supply would 18 have priority. And that varies with hydrologic 19 circumstances. 20 C.O. STUBCHAER: Okay. Thank you. 21 C.O. CAFFREY: Anything else from the Board Members? 22 Thank you, Mr. Stubchaer. That completes the 23 cross-examination of this witness. 24 Let me ask, Ms. Harrigfeld, if you have any 25 redirect? CAPITOL REPORTERS (916) 923-5447 6769 1 MS. HARRIGFELD: Yes, I do. 2 C.O. CAFFREY: Let's see it's 5 after 4:00. 3 MR. BRANDT: This may be hours. 4 C.O. CAFFREY: Have you hired Mr. Brandt to speak for 5 you? 6 MS. HARRIGFELD: Yeah. I'm going to be at least 30 7 to -- 30 minutes to an hour. 8 C.O. CAFFREY: All right. That being the case, then, 9 let's return here tomorrow at 9:00 a.m. and resume. Thank 10 you. 11 (The proceedings concluded at 4:06 p.m.) 12 ---oOo--- 13 14 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 6770 1 REPORTER'S_CERTIFICATE __________ ___________ 2 3 STATE OF CALIFORNIA ) ) ss. 4 COUNTY OF SACRAMENTO ) 5 I, MARY R. GALLAGHER, certify that I was the 6 Official Court Reporter for the proceedings named herein, 7 and that as such reporter I reported in verbatim shorthand 8 writing those proceedings; that I thereafter caused my 9 shorthand writing to be reduced to typewriting, and the 10 pages numbered 6597 through 6770 herein constitute a 11 complete, true and correct record of the proceedings. 12 IN WITNESS WHEREOF, I have subscribed this 13 certificate at Sacramento, California, on this 1st day of 14 December, 1998. 15 16 ________________________________ MARY R. GALLAGHER, CSR #10749 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 6771