STATE WATER RESOURCES CONTROL BOARD PUBLIC HEARING 1998 BAY-DELTA WATER RIGHTS HEARING HELD AT: BONDERSON BUILDING 901 P STREET SACRAMENTO, CALIFORNIA WEDNESDAY, NOVEMBER 18, 1998 9:00 A.M. Reported by: ESTHER F. WIATRE CSR NO. 1564 CAPITOL REPORTERS (916) 923-5447 1 APPEARANCES BOARD MEMBERS: 2 JOHN CAFFREY, COHEARING OFFICER 3 JAMES STUBCHAER, COHEARING OFFICER JOHN W. BROWN 4 MARY JANE FORSTER MARC DEL PIERO 5 STAFF MEMBERS: 6 WALTER PETTIT, EXECUTIVE DIRECTOR 7 VICTORIA WHITNEY, CHIEF BAY-DELTA UNIT THOMAS HOWARD, SUPERVISING ENGINEER 8 COUNSEL: 9 WILLIAM R. ATTWATER, CHIEF COUNSEL 10 BARBARA LEIDIGH 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 PRINCETON CODORA GLENN IRRIGATION DISTRICT, et al.: 3 FROST, DRUP & ATLAS 134 West Sycamore Street 4 Willows, California 95988 BY: J. MARK ATLAS, ESQ. 5 JOINT WATER DISTRICTS: 6 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON: 7 P.O. BOX 1679 Oroville, California 95965 8 BY: WILLIAM H. BABER III, ESQ. 9 CALIFORNIA SPORTFISHING PROTECTION ALLIANCE: 10 ROBERT J. BAIOCCHI P.O. Box 357 11 Quincy, California 12 BELLA VISTA WATER DISTRICT: 13 BRUCE L. BELTON, ESQ. 2525 Park Marina Drive, Suite 102 14 Redding, California 96001 15 WESTLANDS WATER DISTRICT: 16 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 400 Capitol Mall, 27th Floor 17 Sacramento, California 95814 BY: THOMAS W. BIRMINGHAM, ESQ. 18 and AMELIA THOMAS, ESQ. 19 THE BAY INSTITUTE OF SAN FRANCISCO: 20 GARY BOBKER 21 55 Shaver Street, Suite 330 San Rafael, California 94901 22 CITY OF ANTIOCH, et al.: 23 FREDERICK BOLD, JR., ESQ. 24 1201 California Street, Suite 1303 San Francisco, California 94109 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 LEAGUE OF WOMEN VOTERS: 3 ROBERTA BORGONOVO 2480 Union Street 4 San Francisco, California 94123 5 UNITED STATES DEPARTMENT OF THE INTERIOR: 6 OFFICE OF THE SOLICITOR 2800 Cottage Way, Room E1712 7 Sacramento, California 95825 BY: ALF W. BRANDT, ESQ. 8 CALIFORNIA URBAN WATER AGENCIES: 9 BYRON M. BUCK 455 Capitol Mall, Suite 705 10 Sacramento, California 95814 11 RANCHO MURIETA COMMUNITY SERVICES DISTRICT: 12 MCDONOUGH, HOLLAND & ALLEN 555 Capitol Mall, 9th Floor 13 Sacramento, California 95814 BY: VIRGINIA A. CAHILL, ESQ. 14 CALIFORNIA DEPARTMENT OF FISH AND GAME: 15 OFFICE OF ATTORNEY GENERAL 16 1300 I Street, Suite 1101 Sacramento, California 95814 17 BY: MATTHEW CAMPBELL, ESQ. 18 NATURAL RESOURCES DEFENSE COUNCIL: 19 HAMILTON CANDEE, ESQ. 71 Stevenson Street 20 San Francisco, California 94105 21 ARVIN-EDISON WATER STORAGE DISTRICT, et al.: 22 DOOLEY HERR & WILLIAMS 3500 West Mineral King Avenue, Suite C 23 Visalia, California 93291 BY: DANIEL M. DOOLEY, ESQ. 24 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 SACRAMENTO MUNICIPAL UTILITY DISTRICT: 3 LESLIE A. DUNSWORTH, ESQ. 6201 S Street 4 Sacramento, California 95817 5 SOUTH SAN JOAQUIN IRRIGATION DISTRICT, et al.: 6 BRAY, GEIGER, RUDQUIST & NUSS 311 East Main Street, 4th Floor 7 Stockton, California 95202 BY: STEVEN P. EMRICK, ESQ. 8 EAST BAY MUNICIPAL UTILITY DISTRICT: 9 EBMUD OFFICE OF GENERAL COUNSEL 10 375 Eleventh Street Oakland, California 94623 11 BY: FRED S. ETHERIDGE, ESQ. 12 GOLDEN GATE AUDUBON SOCIETY: 13 ARTHUR FEINSTEIN 2530 San Pablo Avenue, Suite G 14 Berkeley, California 94702 15 CONAWAY CONSERVANCY GROUP: 16 UREMOVIC & FELGER P.O. Box 5654 17 Fresno, California 93755 BY: WARREN P. FELGER, ESQ. 18 THOMES CREEK WATER ASSOCIATION: 19 THOMES CREEK WATERSHED ASSOCIATION 20 P.O. Box 2365 Flournoy, California 96029 21 BY: LOIS FLYNNE 22 COURT APPOINTED REPS OF WESTLANDS WD AREA 1, et al.: 23 LAW OFFICES OF SMILAND & KHACHIGIAN 601 West Fifth Street, Seventh Floor 24 Los Angeles, California 90075 BY: CHRISTOPHER G. FOSTER, ESQ. 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 CITY AND COUNTY OF SAN FRANCISCO: 3 OFFICE OF THE CITY ATTORNEY 1390 Market Street, Sixth Floor 4 San Francisco, California 94102 BY: DONN W. FURMAN, ESQ. 5 CAMP FAR WEST IRRIGATION DISTRICT, et al.: 6 DANIEL F. GALLERY, ESQ. 7 926 J Street, Suite 505 Sacramento, California 95814 8 BOSTON RANCH COMPANY, et al.: 9 J.B. BOSWELL COMPANY 10 101 West Walnut Street Pasadena, California 91103 11 BY: EDWARD G. GIERMANN 12 SAN JOAQUIN RIVER GROUP AUTHORITY, et al.: 13 GRIFFTH, MASUDA & GODWIN 517 East Olive Street 14 Turlock, California 95381 BY: ARTHUR F. GODWIN, ESQ. 15 NORTHERN CALIFORNIA WATER ASSOCIATION: 16 RICHARD GOLB 17 455 Capitol Mall, Suite 335 Sacramento, California 95814 18 PLACER COUNTY WATER AGENCY, et al.: 19 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 20 400 Capitol Mall, 27th Floor Sacramento, California 95814 21 BY: JANET GOLDSMITH, ESQ. 22 ENVIRONMENTAL DEFENSE FUND: 23 DANIEL SUYEYASU, ESQ. and 24 THOMAS J. GRAFF, ESQ. 5655 College Avenue, Suite 304 25 Oakland, California 94618 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 CALAVERAS COUNTY WATER DISTRICT: 3 SIMON GRANVILLE P.O. Box 846 4 San Andreas, California 95249 5 CHOWCHILLA WATER DISTRICT, et al.: 6 GREEN, GREEN & RIGBY P.O. Box 1019 7 Madera, California 93639 BY: DENSLOW GREEN, ESQ. 8 CALIFORNIA FARM BUREAU FEDERATION: 9 DAVID J. GUY, ESQ. 10 2300 River Plaza Drive Sacramento, California 95833 11 SANTA CLARA VALLEY WATER DISTRICT: 12 MORRISON & FORESTER 13 755 Page Mill Road Palo Alto, California 94303 14 BY: KEVIN T. HAROFF, ESQ. 15 CITY OF SHASTA LAKE: 16 ALAN N. HARVEY P.O. Box 777 17 Shasta Lake, California 96019 18 COUNTY OF STANISLAUS: 19 MICHAEL G. HEATON, ESQ. 926 J Street 20 Sacramento, California 95814 21 GORRILL LAND COMPANY: 22 GORRILL LAND COMPANY P.O. Box 427 23 Durham, California 95938 BY: DON HEFFREN 24 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 SOUTH DELTA WATER AGENCY: 3 JOHN HERRICK, ESQ. 3031 West March Lane, Suite 332 East 4 Stockton, California 95267 5 COUNTY OF GLENN: 6 NORMAN Y. HERRING 525 West Sycamore Street 7 Willows, California 95988 8 REGIONAL COUNCIL OF RURAL COUNTIES: 9 MICHAEL B. JACKSON, ESQ. 1020 Twelfth Street, Suite 400 10 Sacramento, California 95814 11 DEER CREEK WATERSHED CONSERVANCY: 12 JULIE KELLY P.O. Box 307 13 Vina, California 96092 14 DELTA TRIBUTARY AGENCIES COMMITTEE: 15 MODESTO IRRIGATION DISTRICT P.O. Box 4060 16 Modesto, California 95352 BY: BILL KETSCHER 17 SAVE THE SAN FRANCISCO BAY ASSOCIATION: 18 SAVE THE BAY 19 1736 Franklin Street Oakland, California 94612 20 BY: CYNTHIA L. KOEHLER, ESQ. 21 BATTLE CREEK WATERSHED LANDOWNERS: 22 BATTLE CREEK WATERSHED CONSERVANCY P.O. Box 606 23 Manton, California 96059 24 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 BUTTE SINK WATERFOWL ASSOCIATION, et al.: 3 MARTHA H. LENNIHAN, ESQ. 455 Capitol Mall, Suite 300 4 Sacramento, California 95814 5 CITY OF YUBA CITY: 6 WILLIAM P. LEWIS 1201 Civic Center Drive 7 Yuba City 95993 8 BROWNS VALLEY IRRIGATION DISTRICT, et al.: 9 BARTKEWICZ, KRONICK & SHANAHAN 1011 22nd Street, Suite 100 10 Sacramento, California 95816 BY: ALAN B. LILLY, ESQ. 11 CONTRA COSTA WATER DISTRICT: 12 BOLD, POLISNER, MADDOW, NELSON & JUDSON 13 500 Ygnacio Valley Road, Suite 325 Walnut Creek, California 94596 14 BY: ROBERT B. MADDOW, ESQ. 15 GRASSLAND WATER DISTRICT: 16 DON MARCIOCHI 22759 South Mercey Springs Road 17 Los Banos, California 93635 18 SAN LUIS CANAL COMPANY: 19 FLANNIGAN, MASON, ROBBINS & GNASS 3351 North M Street, Suite 100 20 Merced, California 95344 BY: MICHAEL L. MASON, ESQ. 21 STONY CREEK BUSINESS AND LAND OWNERS COALITION: 22 R.W. MCCOMAS 23 4150 County Road K Orland, California 95963 24 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 TRI-DAM POWER AUTHORITY: 3 TUOLUMNE UTILITIES DISTRICT P.O. Box 3728 4 Sonora, California 95730 BY: TIM MCCULLOUGH 5 DELANO-EARLIMART IRRIGATION DISTRICT, et al.: 6 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 7 P.O. Box 1679 Oroville, California 95965 8 BY: JEFFREY A. MEITH, ESQ. 9 HUMANE FARMING ASSOCIATION: 10 BRADLEY S. MILLER 1550 California Street, Suite 6 11 San Francisco, California 94109 12 CORDUA IRRIGATION DISTRICT, et al.: 13 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 14 Oroville, California 95965 BY: PAUL R. MINASIAN, ESQ. 15 EL DORADO COUNTY WATER AGENCY: 16 DE CUIR & SOMACH 17 400 Capitol Mall, Suite 1900 Sacramento, California 95814 18 BY: DONALD B. MOONEY, ESQ. 19 GLENN COUNTY FARM BUREAU: 20 STEVE MORA 501 Walker Street 21 Orland, California 95963 22 MODESTO IRRIGATION DISTRICT: 23 JOEL MOSKOWITZ P.O. Box 4060 24 Modesto, California 95352 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 PACIFIC GAS & ELECTRIC: 3 RICHARD H. MOSS, ESQ. P.O. Box 7442 4 San Francisco, California 94120 5 CENTRAL DELTA WATER AGENCY, et al.: 6 NOMELLINI, GRILLI & MCDANIEL P.O. Box 1461 7 Stockton, California 95201 BY: DANTE JOHN NOMELLINI, ESQ. 8 and DANTE JOHN NOMELLINI, JR., ESQ. 9 TULARE LAKE BASIN WATER STORAGE UNIT: 10 MICHAEL NORDSTROM 11 1100 Whitney Avenue Corcoran, California 93212 12 AKIN RANCH, et al.: 13 DOWNEY, BRAND, SEYMOUR & ROHWER 14 555 Capitol Mall, 10th Floor Sacramento, California 95814 15 BY: KEVIN M. O'BRIEN, ESQ. 16 OAKDALE IRRIGATION DISTRICT: 17 O'LAUGHLIN & PARIS 870 Manzanita Court, Suite B 18 Chico, California 95926 BY: TIM O'LAUGHLIN, ESQ. 19 SIERRA CLUB: 20 JENNA OLSEN 21 85 Second Street, 2nd Floor San Francisco, California 94105 22 YOLO COUNTY BOARD OF SUPERVISORS: 23 LYNNEL POLLOCK 24 625 Court Street Woodland, California 95695 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 PATRICK PORGANS AND ASSOCIATES: 3 PATRICK PORGANS P.O. Box 60940 4 Sacramento, California 95860 5 BROADVIEW WATER DISTRICT, et al.: 6 DIANE RATHMANN 7 FRIENDS OF THE RIVER: 8 BETSY REIFSNIDER 128 J Street, 2nd Floor 9 Sacramento, California 95814 10 MERCED IRRIGATION DISTRICT: 11 FLANAGAN, MASON, ROBBINS & GNASS P.O. Box 2067 12 Merced, California 95344 BY: KENNETH M. ROBBINS, ESQ. 13 CENTRAL SAN JOAQUIN WATER CONSERVATION DISTRICT: 14 REID W. ROBERTS, ESQ. 15 311 East Main Street, Suite 202 Stockton, California 95202 16 METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA: 17 JAMES F. ROBERTS 18 P.O. Box 54153 Los Angeles, California 90054 19 SACRAMENTO AREA WATER FORUM: 20 CITY OF SACRAMENTO 21 980 9th Street, 10th Floor Sacramento, California 95814 22 BY: JOSEPH ROBINSON, ESQ. 23 24 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 TUOLUMNE RIVER PRESERVATION TRUST: 3 NATURAL HERITAGE INSTITUTE 114 Sansome Street, Suite 1200 4 San Francisco, California 94194 BY: RICHARD ROOS-COLLINS, ESQ. 5 CALIFORNIA DEPARTMENT OF WATER RESOURCES: 6 DAVID SANDINO, ESQ. 7 CATHY CROTHERS, 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 Capitol 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 1 REPRESENTATIVES 2 ORLAND UNIT WATER USERS' ASSOCIATION: 3 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 4 Oroville, California 95965 BY: M. ANTHONY SOARES, ESQ. 5 GLENN-COLUSA IRRIGATION DISTRICT: 6 DE CUIR & SOMACH 7 400 Capitol Mall, Suite 1900 Sacramento, California 95814 8 BY: STUART L. SOMACH, ESQ. 9 NORTH SAN JOAQUIN WATER CONSERVATION DISTRICT: 10 JAMES F. SORENSEN CONSULTING CIVIL ENGINEER, INC. 209 South Locust Street 11 Visalia, California 93279 BY: JAMES F. SORENSEN 12 PARADISE IRRIGATION DISTRICT: 13 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 14 P.O. Box 1679 Oroville, California 95695 15 BY: WILLIAM H. SPRUANCE, ESQ. 16 COUNTY OF COLUSA: 17 DONALD F. STANTON, ESQ. 1213 Market Street 18 Colusa, California 95932 19 COUNTY OF TRINITY: 20 COUNTY OF TRINITY - NATURAL RESOURCES P.O. Box 156 21 Hayfork, California 96041 BY: TOM STOKELY 22 CITY OF REDDING: 23 JEFFERY J. SWANSON, ESQ. 24 2515 Park Marina Drive, Suite 102 Redding, California 96001 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 TULARE IRRIGATION DISTRICT: 3 TEHAMA COUNTY RESOURCE CONSERVATION DISTRICT 2 Sutter Street, Suite D 4 Red Bluff, California 96080 BY: ERNEST E. WHITE 5 STATE WATER CONTRACTORS: 6 BEST BEST & KREIGER 7 P.O. Box 1028 Riverside, California 92502 8 BY: ERIC GARNER, ESQ. 9 COUNTY OF TEHAMA, et al.: 10 COUNTY OF TEHAMA BOARD OF SUPERVISORS: P.O. Box 250 11 Red Bluff, California 96080 BY: CHARLES H. WILLARD 12 MOUNTAIN COUNTIES WATER RESOURCES ASSOCIATION: 13 CHRISTOPHER D. WILLIAMS 14 P.O. Box 667 San Andreas, California 95249 15 JACKSON VALLEY IRRIGATION DISTRICT: 16 HENRY WILLY 17 6755 Lake Amador Drive Ione, California 95640 18 SOLANO COUNTY WATER AGENCY, et al.: 19 HERUM, CRABTREE, DYER, ZOLEZZI & TERPSTRA 20 2291 West March Lane, S.B.100 Stockton, California 95207 21 BY: JEANNE M. ZOLEZZI, ESQ. 22 ---oOo--- 23 24 25 CAPITOL REPORTERS (916) 923-5447 1 INDEX PAGE 2 RESUMPTION OF HEARING 6788 AFTERNOON SESSION 6880 3 STOCKTON EAST WATER DISTRICT: 4 LOWELL PLOSS REDIRECT EXAMINATION: 5 BY MS. HARRIGFELD 6789 RECROSS-EXAMINATION: 6 BY MR. BRANDT 6821 BY MR. MINASIAN 6833 7 BY MR. NOMELLINI 6845 BY MR. JACKSON 6858 8 BY MR. CAMPBELL 6873 BY MR. HERRICK 6880 9 BY MR. SEXTON 6919 BY MR. GODWIN 6926 10 BY MS. CAHILL 6928 BY STAFF 6934 11 EDWARD STEFFANI DIRECT EXAMINATION: 12 BY MS. HARRIGFELD 6939 CROSS-EXAMINATION: 13 BY BOARD MEMBERS 6951 BY MS. CAHILL 6960 14 BY MR. GALLERY 6962 BY MR. BRANDT 6968 15 ---oOo--- 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 1 SACRAMENTO, CALIFORNIA 2 WEDNESDAY, NOVEMBER 18, 1998 3 ---oOo-- 4 C.O. CAFFREY: Good morning. This is the continuation 5 of the Bay-Delta Water Rights hearing. 6 Mr. Del Piero remarked yesterday in his ocean hearing 7 he took care of the entire Pacific Ocean in two hours, and 8 here we still are. 9 I have heard a couple of comments on what to call Phase 10 V. One is the "Phase from H___." The other is "The Never 11 Ending Story." In any case, we are here diligently to do 12 our work, and it was announced last night, before we 13 adjourned, by Ms. Harrigfeld that she needed at least an 14 hour for -- 15 MS. HARRIGFELD: Hopefully not that long. 16 C.O. CAFFREY: In the case of adversarial witnesses 17 there is no limit, so do the best you can and keep it 18 relevant, and we will provide you the time you need. 19 Ms. Harrigfeld, is there anything we need to do before 20 we get started? 21 All right, please proceed. 22 ---oOo--- 23 // 24 // 25 // CAPITOL REPORTERS (916) 923-5447 6788 1 REDIRECT EXAMINATION OF MR. LOWELL PLOSS 2 BY STOCKTON EAST WATER DISTRICT 3 BY MS. HARRIGFELD 4 MS. HARRIGFELD: Thank you, Mr. Chairman and Members of 5 the Board. I wanted to make one point of clarification. 6 Yesterday, when Mr. Gallery was referring to the Record of 7 Decision, he was referring to it as Stockton East Water 8 District Exhibit Number 19. That is not our exhibit. It 9 is, in fact, Tuolumne Utility District Number 11. So I 10 wanted the record to reflect that the ROD is Exhibit Number 11 11 for Tuolumne Utility District. 12 Good morning, Mr. Ploss. My name is Karna Harrigfeld. 13 I am here representing Stockton East Water District. I have 14 a few redirect examination questions for you. 15 Ms. Zolezzi, in her direct examination of you, asked 16 you a question regarding the four-county preference area 17 established by D-1422. 18 Do you recall that question? 19 MR. PLOSS: Yes. 20 MS. HARRIGFELD: In response to that question you 21 stated that Bureau of Reclamation still honored that 22 preference? 23 MR. PLOSS: Yes. 24 MS. HARRIGFELD: Mr. Brandt asked a clarifying 25 question, and, in response to a question by Mr. Brandt, you CAPITOL REPORTERS (916) 923-5447 6789 1 testified the preference you were referring to is derived 2 from the Congressional authorization. 3 Could you explain that answer. 4 MR. PLOSS: The authorization for New Melones 5 identified, based upon the studies that were done, those 6 four counties as being the service area for the New Melones 7 Project. And through our State Board petitions, we 8 petitioned that water be served to those areas within those 9 counties and elsewhere, and the Board in their order limited 10 the service to those counties. 11 MS. HARRIGFELD: You further testified in response to 12 Mr. Brandt's question that you believed that the area of 13 origin preference was exercised by applying to the State 14 Water Resources Control Board for a water right permit. Is 15 that correct? 16 MR. PLOSS: Will you repeat that. 17 MS. HARRIGFELD: In response to a question from Mr. 18 Brandt, in response to several cross-examination questions, 19 you stated that an area of origin preference is exercised by 20 the filing of an application to appropriate. 21 MR. BRANDT: By someone else? 22 MS. HARRIGFELD: Right. 23 That the way that it worked, one of the four counties, 24 should they want to exercise an area of origin area right, 25 they would need to apply to the State Board -- CAPITOL REPORTERS (916) 923-5447 6790 1 MR. PLOSS: Yes, that is correct. 2 MS. HARRIGFELD: -- for water? 3 Is it your testimony that the preference established by 4 Congress for local use of New Melones water requires the 5 local users to obtain a water right from the State Board? 6 MR. PLOSS: The four-county preference that has been 7 referred to here is a preference for Central Valley Project 8 water out of New Melones, that those are the areas 9 identified to be within the service area of New Melones, and 10 that was a preference for project water only. 11 MS. HARRIGFELD: So it would be your testimony that the 12 Bureau does not recognize the preference afforded by D-1422 13 to the four-county area? 14 MR. SEXTON: Objection. Argumentative. 15 C.O. CAFFREY: I am sorry, I didn't hear the objection. 16 I was in consultation with one of my learned counselors up 17 here. 18 MR. SEXTON: I think it was argumentative. 19 C.O. CAFFREY: Since I didn't hear the question, could 20 it be read back or could it be repeated. 21 (Record read as requested.) 22 C.O. CAFFREY: You have an answer to the question, Mr. 23 Ploss? 24 MR. BRANDT: Objection, also. I think I need to add 25 vague and ambiguous. CAPITOL REPORTERS (916) 923-5447 6791 1 C.O. CAFFREY: Do you have an answer to the question? 2 I will repeat my question, Mr. Ploss? 3 MR. PLOSS: Maybe we can restate the question. 4 C.O. CAFFREY: Restate the question, if you would, Ms. 5 Harrigfeld, with -- you may choose to use the guidance that 6 you have heard from some of the objectors. 7 MS. HARRIGFELD: Sure. 8 So, it is your testimony, Mr. Ploss, that the Bureau 9 does not recognize an area of origin preference that was 10 recognized in D-1422 in the four-county area simply by the 11 permit terms? 12 MR. SEXTON: Restate my objection, Mr. Chairman. 13 C.O. STUBCHAER: Please answer the question, if you 14 can, Mr. Ploss. The objection is noted. 15 MR. PLOSS: As I interpret D-1422, the four-county 16 preference for the permits for New Melones is with respect 17 to the service of CVP project water to those four counties, 18 not an area of origin preference to other users that have 19 non-CVP rights. 20 MS. HARRIGFELD: In order for, let's hypothetically 21 say, Stockton East Water District to exercise the area of 22 origin preference, you would require the district to file 23 for an application to the State Board to appropriate water? 24 MR. PLOSS: As I understand the area of origin 25 preference, that is true; that if another agency wants to CAPITOL REPORTERS (916) 923-5447 6792 1 apply to the Board for a permit and to perfect a water right 2 within the area of origin, that water right would be senior 3 to project water that's exported out of that area. 4 MS. HARRIGFELD: Mr. Minasian asked you a series of 5 questions regarding whether or not the Bureau intended to 6 pump water released from New Melones for water quality 7 purposes at its Tracy pumping plant. 8 Do you recall that question? 9 MR. PLOSS: I believe I do, yes. 10 MS. HARRIGFELD: Are you familiar with State Water 11 Resources Control Board Order 83-3, which, for the record, 12 is State Water Resources Control Board Exhibit 5-F? 13 MR. PLOSS: No, I am not familiar with it. 14 MS. HARRIGFELD: I am going to hand you Water Rights 15 Order 83-3. There is a section underlined that I would like 16 for you to read out loud, please. 17 MR. PLOSS: We note that during the hearing it 18 was suggested that the Bureau could pick 19 up water from New Melones Reservoir at its 20 pump at Tracy for delivery outside the four 21 counties in which the use of New Melones 22 water is authorized without receiving approval 23 under condition four to change the place of 24 use. We disagree with this view. Before the 25 permittee may serve water in areas outside the CAPITOL REPORTERS (916) 923-5447 6793 1 four counties, it must obtain an amendment to 2 its permits to include other specific areas, 3 Water Code Section 1701 and 1702. Without an 4 amendment the water right permits authorized 5 use of water only in the four counties 6 specified in condition four. (Reading.) 7 MS. HARRIGFELD: Doesn't this provide the answer to Mr. 8 Minasian's question and the position of the State Board on 9 that issue? 10 MR. PLOSS: I believe that this relates to whether or 11 not the Bureau has a permit to release water specifically 12 from New Melones Reservoir for export purposes. The view 13 that Reclamation has taken is that once water is released 14 from New Melones for use within the service area of the 15 project, New Melones Project, and within that area, within 16 that drainage basin, that that water, once it enters the 17 Delta, becomes exportable water or water that can be 18 diverted by any water right holder, and that includes the 19 Central Valley Project. It is not water that is being 20 released specifically for export, but water that has been 21 released, serves its purpose within the service area and 22 then, I think for all purposes, could be treated as return 23 flows to the Delta. 24 MS. HARRIGFELD: So it is your position that the Bureau 25 does not have to request an amendment to its water right CAPITOL REPORTERS (916) 923-5447 6794 1 permits in order to effectuate that? 2 MR. PLOSS: Correct. 3 MS. HARRIGFELD: Thank you. 4 Turning now to the supplemental EIS that was put forth 5 by Mr. Minasian as Exchange Contractors next in order. I 6 don't know which one that was. We looked at Page D-35. Let 7 me show you that. 8 It states, at that area where I have flagged, that 9 there would be varying quantities of interim and permanent 10 water supplies estimated to be available for the Stockton 11 East Water District as shown on Figure 3. 12 Does it state that? 13 MR. PLOSS: Yes, it does. 14 MS. HARRIGFELD: I would like to put Figure 3 up on the 15 overhead. 16 MR. BRANDT: Just to refresh everyone's recollection, 17 this is the document that the witness had not seen before it 18 was put in front of him, and he has not had a chance to 19 review this some 150-page document. 20 C.O. CAFFREY: Thank you, Mr. Brandt. Appreciate your 21 reminding us of that. If you do need time, a little extra 22 time, Mr. Ploss, please let us know, either by yourself or 23 through your counsel, and we will grant you that. 24 MS. HARRIGFELD: This is Figure 3 from Page B-26 of the 25 supplement EIS. I just have a couple questions regarding CAPITOL REPORTERS (916) 923-5447 6795 1 this figure. 2 Doesn't this figure show that there is a firm supply of 3 49,000 acre-feet of water even through the year 2020? 4 MR. PLOSS: That is correct, and that is my 5 understanding of the analysis that was done at the time. 6 MS. HARRIGFELD: Doesn't it also show that there is an 7 interim supply of water available through 2020? 8 MR. PLOSS: There is an interim supply available 9 through 2020, yes. It diminishes to zero in that year. 10 MS. HARRIGFELD: That was the projected? 11 MR. PLOSS: That is projected, yes. 12 MS. HARRIGFELD: What year was the Stockton East Water 13 District and the Central San Joaquin Conservation District 14 contracts entered into? 15 MR. PLOSS: I don't know the exact dates. 16 MS. HARRIGFELD: If I said 1983 and showed you Stockton 17 East Exhibit Number 7 -- for the record, it is December 18 19th, 1983 -- do these contracts with Central and Stockton 19 East contain both firm and interim supplies? 20 MR. PLOSS: Yes. That is my understanding of the 21 contracts. Central San Joaquin Water Conservation 22 District's contract contains both provisions for firm supply 23 and interim supply. Stockton East Water District contract 24 is for an interim supply. 25 MS. HARRIGFELD: The firm supply availability was CAPITOL REPORTERS (916) 923-5447 6796 1 estimated to continue beyond that 2020 time period, correct? 2 MR. PLOSS: That is correct, based on the studies that 3 were done at the time. 4 MS. HARRIGFELD: The supplement EIS discusses the water 5 supply availability under the recommended plan under New 6 Melones allocation, and it discusses in several areas this 7 whole concept of in-basin development. And in its 8 discussion it states that it is only in-basin development 9 that would divest the interim contractors of their allocated 10 amounts. And those sorts of in-basin development was in the 11 counties where the project -- the Calaveras and Tuolumne 12 County. Isn't that correct, in general, that the in-basin 13 development was what would divest the contractor of their 14 amount? 15 MR. PLOSS: That is my understanding, yes. 16 MS. HARRIGFELD: Are you aware of any language in the 17 supplement EIS that states that the interim supply would be 18 decreased by increased water quality releases or increased 19 fishery releases? 20 MR. PLOSS: I am not aware of any such language. 21 MS. HARRIGFELD: To your knowledge, have you entered 22 into any contracts with any of the other in-basin uses 23 discussed in the basin alternative? 24 MR. PLOSS: Not at this time. 25 MS. HARRIGFELD: To your knowledge, has any of the CAPITOL REPORTERS (916) 923-5447 6797 1 in-basin users ever requested water from New Melones? 2 MR. PLOSS: Yes. 3 MS. HARRIGFELD: Who would that be? 4 MR. PLOSS: Tuolumne Utility District some years ago 5 requested a contract. And they are in the process now of 6 initiating necessary studies to enter into negotiations for 7 a contract. 8 MS. HARRIGFELD: So, TUD is the only in-basin user that 9 has requested water from New Melones? 10 MR. PLOSS: To my knowledge, yes. 11 MS. HARRIGFELD: No contract has been executed? 12 MR. PLOSS: No contract has been executed. 13 MS. HARRIGFELD: I would like to turn your attention to 14 Stockton East Water District Exhibit 7, which is our water 15 supply contract. Section 3 (a) of this contract addresses 16 the fact that the water supply is interim. Could I ask you 17 to read the underlined portions of Section 3 (a) of this 18 contract. 19 MR. PLOSS: As the basin use develops or if interim 20 water supply available to San Joaquin Water Conservation 21 District pursuant to its contract with the United States is 22 increased, the contractors' interim supply may be reduced 23 for subsequent years as determined by the contracting 24 officer upon a minimum of one-year written notification to 25 the contractor. CAPITOL REPORTERS (916) 923-5447 6798 1 MS. HARRIGFELD: Has the Bureau of Reclamation provided 2 the notice discussed in that language to Stockton East Water 3 District? 4 MR. PLOSS: I believe not. 5 MS. HARRIGFELD: Thank you. 6 Mr. Birmingham referred you to Page 13 of D-1422 7 wherein the State Water Resources Control Board made the 8 statement that: 9 Any permits issued pursuant to subject 10 application should contain an interim term 11 until further studies are made requiring 12 releases of conserved water from the New 13 Melones. (Reading.) 14 Do you recall that question? 15 MR. PLOSS: Yes. 16 MS. HARRIGFELD: Have the studies anticipated by that 17 language been completed by the Bureau? 18 MR. PLOSS: I believe those studies are with regard to 19 the in-stream studies that have to be done. And some work 20 has been done. I believe one study has been completed and 21 the report issued. There are other studies that are 22 underway now. 23 MS. HARRIGFELD: Would that be one report that has been 24 completed be the IFIM study? 25 MR. PLOSS: There was an in-stream flow study that was CAPITOL REPORTERS (916) 923-5447 6799 1 done, yes. 2 MS. HARRIGFELD: In response to a question by Mr. 3 Birmingham, you stated that Water Right Order 95-6 obligated 4 the Bureau to meet flow objectives from the CVP. Is that a 5 correct statement of your prior testimony? 6 MR. PLOSS: Yes. 7 MS. HARRIGFELD: Isn't it correct that the Bureau 8 voluntarily committed to meet the new standards through the 9 Bay-Delta Accord? 10 MR. PLOSS: We agreed, through the Accord, that the two 11 projects, the Department of Water Resources and the Bureau 12 of Reclamation would take the steps necessary to implement 13 the Water Quality Plan through an interim phase until these 14 proceedings could be completed. As part of the Accord, the 15 Bureau of Reclamation offered that it would attempt to meet 16 the flow objectives on the San Joaquin River. 17 MS. HARRIGFELD: In your opinion, does Water Rights 18 Order 95-6 obligate the Bureau to meet flow objectives? 19 MR. PLOSS: I believe that 95-6 clears up any 20 inconsistencies between the Water Quality Control Plan and 21 D-1485 that would then allow the two projects to implement 22 the provision of the Water Quality Control Plan. 23 MS. HARRIGFELD: I would like to move to a couple 24 questions on the interim plan. Mr. Birmingham asked you a 25 series of questions regarding the development of the Interim CAPITOL REPORTERS (916) 923-5447 6800 1 Operations Plan for New Melones. 2 Do you recall the nature of those questions? 3 MR. PLOSS: Yes. 4 MS. HARRIGFELD: You testified that the interim plan 5 was developed because the drought years '86 to '96 had the 6 lowest inflow in history and that it was worse than the 7 original projection when the project was planned. 8 Correct? 9 MR. PLOSS: That is correct. 10 MS. HARRIGFELD: You testified that for planning 11 purposes a worst-case scenario was defined as 950,000 12 acre-feet inflow and that under the '86 to '96 drought that 13 number was 914,000 acre-feet? 14 MR. PLOSS: Yes. 15 MS. HARRIGFELD: The comparison between the original 16 planning drought figures of 950 and the new numbers of 914 17 show a reduction in yield of 36,000 acre-feet. 18 Correct? 19 MR. PLOSS: Not necessarily. Yield is not necessarily 20 defined as reduction in inflow. Yield is a result of how 21 the project is operated to meet all the various projects for 22 all various purposes plus the inflow to the reservoir. 23 MS. HARRIGFELD: Is it safe to say, then, that there 24 has been -- could you quantify the reduction in yield which 25 is shown by the two different drought figures? CAPITOL REPORTERS (916) 923-5447 6801 1 MR. PLOSS: We have not attempted to redefine the yield 2 of the project at this time. That will be part of a 3 long-term planning process. The reason we developed the 4 Interim Operation Plan and now going through a long-term 5 planning process for New Melones is because of the recent 6 drought and new demands that have been placed on the 7 project, both through the proceedings here and the in-stream 8 flow studies that are some completed and some underway. 9 We have realized that during critical periods such as 10 the recent drought there is not sufficient water in New 11 Melones to meet all of the requirements all the time. 12 Therefore, we, through the stakeholder process, developed 13 an interim plan so we can reevaluate how that project should 14 be operated in the best manner to meet the needs. We have 15 not attempted to redefine the yield at this time. 16 MS. HARRIGFELD: That will be a part of the long-term 17 planning? 18 MR. PLOSS: It will be a part of the long-term 19 planning, yes. 20 MS. HARRIGFELD: Isn't it true, though, that the CVP 21 contractors have seen a reduction in their available supply 22 in excess of 36,000 acre-feet? 23 MR. PLOSS: That is correct. 24 MS. HARRIGFELD: I would like to make a point of 25 clarification. I've heard this a number of times, and I CAPITOL REPORTERS (916) 923-5447 6802 1 want to clarify that this is, in fact, your testimony. 2 Is it your testimony that deliveries to Stockton East 3 Water District would come before any releases are made for 4 Bay-Delta purposes? 5 MR. PLOSS: Yes. It may be needed to define what you 6 meant by "Bay-Delta purposes." 7 MS. HARRIGFELD: You have listed in a -- the priorities 8 for New Melones water, and you list fish -- well, first of 9 all, the OID and SSJID contractual amount. Then you have 10 fishery releases. You went through a priority schedule, 11 water quality. 12 You previously testified that Stockton East Water 13 District or CVP contract deliveries come before you make 14 releases for what you called Bay-Delta purposes? 15 MR. PLOSS: Correct. That is the approach we used in 16 the budgeting of the water supply from New Melones for the 17 Interim Operation Plan, correct. 18 MS. HARRIGFELD: I am placing on the overhead Table 2 19 from the Interim Operations Plan. 20 MS. LEIDIGH: Could you describe what exhibit this is. 21 MS. HARRIGFELD: This is DOI Exhibit 4-D. 22 MS. LEIDIGH: Thank you. 23 MS. HARRIGFELD: Could you please explain for me why 24 the CVP contractors are not allocated their full entitlement 25 prior to any Bay-Delta water releases, if you look at the CAPITOL REPORTERS (916) 923-5447 6803 1 third and fourth lines down. 2 MR. PLOSS: Trying to find mine here so I don't have to 3 talk to the screen, I can talk to the mike. 4 This is the budgeting for water releases for New 5 Melones, based upon storage plus inflow resulting from the 6 long-term studies, the model studies that we did, the 7 71-year model study for New Melones, in trying to, as best 8 we could, balance meeting the purposes required of New 9 Melones to the best of our ability. And in doing so, the 10 resulting schedule here shows that if we were trying to meet 11 fishery requirements, water quality, some Bay-Delta in 12 extreme wet years that the most that we could deliver to CVP 13 contractors would be 90,000 acre-feet. 14 MS. HARRIGFELD: How could this be reconciled with your 15 previous statement that CVP contractors come before any 16 Bay-Delta purposes? 17 MR. PLOSS: Part of the reason that -- first, this is 18 not a table that depicts priority of use. This is a table 19 that defines for the purposes of the Interim Operation Plan, 20 how we would budget the water when we do our operations 21 planning. Without going back and studying the long-term 22 modeling, I believe that the reason you see 75,000 acre-feet 23 going to Bay-Delta flow requirements and only 90,000 to the 24 contracts may be a remnant of the timing of when water is 25 available for release. CAPITOL REPORTERS (916) 923-5447 6804 1 MS. HARRIGFELD: In response to some questions by Mr. 2 Birmingham, you stated in response to several questions 3 yesterday as well, that south of the Delta contracting 4 entitlements over the long term usually saw -- they received 5 65 to 70 percent of their contractual entitlement over the 6 long term. Isn't that correct? 7 MR. PLOSS: That has been our view of complying with 8 the Water Quality Control Plan as well as the biological 9 opinions, that in the long term, because of our limitations, 10 limitations that are imposed on the export pumps and other 11 requirements of the projects that we are now meeting, that 12 it appears like in a long term, about 65 to 70 percent would 13 be the water supply allocated south of the Delta at the 14 export pumps yes. 15 MS. HARRIGFELD: Are these south of the Delta contracts 16 for delivery of ag water? 17 MR. PLOSS: That would be for ag water, yes. 18 MS. HARRIGFELD: Even in the worst years these 19 contractors receive 25 percent of their contractual 20 entitlement, correct? 21 MR. PLOSS: I believe as far as the CVP ag service 22 contractors, there is no minimum limit on their contracts. 23 They could go to zero allocation. I believe historically 24 the lowest that we have gone is 25 percent. I believe in 25 some instances we allocated initially less than 25 percent CAPITOL REPORTERS (916) 923-5447 6805 1 to those contractors. But as a result of some fortunate 2 late spring storms, we were able to increase our allocations 3 to 25 percent in those years. 4 MS. HARRIGFELD: Isn't it true that under the Interim 5 Plan of Operations CVP contractors' deliveries average 6 39,000 acre-feet? 7 MR. PLOSS: You're referring to New Melones? 8 MS. HARRIGFELD: I am sorry, yes, CVP contractors under 9 Interim Operation Plan. 10 MR. PLOSS: I believe that has been the average that 11 they've received in years that they have taken water. 12 MS. HARRIGFELD: This 39,000 acre-feet equates to 25.2 13 percent allotment compared with the 65 to 70 percent that 14 other south of the Delta water contractors receive. 15 How can this be justified if the ag contractors are to 16 be treated alike? 17 MR. PLOSS: I don't believe that we can compare the CVP 18 contractors out of New Melones with the CVP contractors 19 south of the Delta we export to. The statement that I made 20 yesterday is that we treat all of our CVP contractors equal, 21 and I'll speak to ag service contractors, unless they are 22 constrained by other circumstances which could be our 23 ability to convey water or other regulatory requirements 24 that are placed on certain facilities. 25 This is the case of New Melones. The water delivered CAPITOL REPORTERS (916) 923-5447 6806 1 to our CVP contractors at New Melones has been limited, not 2 only by water supplies, but other regulatory requirements 3 placed on that project, some of those being water quality 4 and fishery flows. 5 I will go on to note that ag contractors south of the 6 Delta that we export to, while they received more water 7 supply than those from New Melones, similarly, are ag 8 service contractors in the Sacramento Valley have received 9 more than the exporters because of the ability to convey 10 water to them. Because the conveyance capacities and 11 regulatory restrictions in the Delta, those have received 12 less. 13 MS. HARRIGFELD: Switching gears a little bit, to the 14 CVPIA and the (b)(1) and (b)(2) releases. Isn't it true 15 that the CVPIA (b)(2) releases are discretionary, meaning 16 Congress did not direct releases from a particular 17 reservoir? 18 MR. PLOSS: Congress directed the Secretary to develop 19 the requirements for fishery, fish and wildlife, purposes 20 within the CVP controlled rivers and streams, and, based 21 upon those requirements, would provide that water. That has 22 been the case on the Stanislaus River. 23 MS. HARRIGFELD: Isn't it true that Congress did not 24 specifically mandate releases from the New Melones? 25 MR. PLOSS: Congress did not mandate releases from New CAPITOL REPORTERS (916) 923-5447 6807 1 Melones. They left that discretion to the Secretary under 2 the direction they provided to develop the necessary studies 3 and to operate accordingly. 4 MS. HARRIGFELD: In your previous testimony yesterday 5 you stated once again that releases under (b)(2) for the 6 CVPIA are needed for Stanislaus River fish flows; is that 7 correct? 8 MS. PLOSS: That's correct. 9 MS. HARRIGFELD: Are you familiar with the 1987 Fish 10 and Game Agreement which is Central Delta Water Agency 11 Exhibit Number 23? 12 MR. PLOSS: Yes. 13 MS. HARRIGFELD: Isn't it true that this settlement 14 agreement provides for minimum flows in the amount of 98,300 15 acre-feet? 16 MR. PLOSS: That's correct. 17 MS. HARRIGFELD: And maximum flows of 302,100? 18 MR. PLOSS: That is correct. 19 MS. HARRIGFELD: Do you know how the 302,000 acre-feet 20 maximum amount was derived? Was it based on some sort of 21 scientific documentation or was it a number that was simply 22 picked for full protection until future studies were 23 completed? 24 MR. PLOSS: I am not aware -- 25 MR. CAMPBELL: I would like to object. I think this CAPITOL REPORTERS (916) 923-5447 6808 1 question gets into a determination of what are the 2 appropriate in-stream flows for the Stanislaus River. 3 Pursuant to the Board's notice for this hearing, those 4 types of questions and that type of evidence is not 5 relevant. The Board has specifically stated in its notice 6 that the purpose of this proceeding is not to determine 7 in-stream flow needs for the tributaries. It is not the 8 purpose of this Bay-Delta hearing, and I object to the 9 question on that ground. 10 C.O. CAFFREY: Thank you, Mr. Campbell. 11 Mr. Nomellini. 12 MR. NOMELLINI: I think one of the issues with regard 13 to the San Joaquin River and how the Bureau is allocating 14 water is whether or not they might be cheating with regard 15 to the allocation of water from fish purposes so that the 16 water could be exported to the west side of the valley 17 rather than take water away from the west side of the valley 18 to meet these flow requirements in the San Joaquin. 19 So I think it is relevant, although I would agree that 20 the specific issue of in-stream flow is in another phase. 21 But it is relevant here, too, because these figures look 22 like they are drawing very heavily from New Melones in 23 comparison to other projects. And we have testimony that 24 none have been taken from San Luis for fishery purposes. 25 So, I think we should be able to stay on this for CAPITOL REPORTERS (916) 923-5447 6809 1 cross-examination. 2 C.O. CAFFREY: Thank you. 3 Mr. Campbell. 4 MR. CAMPBELL: I think the direction that this question 5 is going in is just to ask what is the basis, the scientific 6 basis, for the in-stream, the existing in-stream flow ranges 7 on the Stanislaus River, is a separate hearing, is a 8 separate matter. It was a subject of Department of Fish and 9 Game's protest of the Bureau's water rights application. 10 That protest was resolved for the 1987 DFG Agreement. 11 According to the Board's hearing notice, we are not here 12 today or any day or any of these months or year that this is 13 going to take to go back through each and every one of these 14 tributaries -- 15 MEMBER DEL PIERO: You finally got it right. 16 MR. CAMPBELL: -- and redetermine in-stream flows, and 17 that is where this question is going. And I would object to 18 the question on the ground of relevance. It is a waste of 19 time. 20 C.O. CAFFREY: All right. Thank you, Mr. Campbell. 21 Appreciate your comments. 22 Ms. Harrigfeld, would you like to comment before I 23 consult on a ruling. 24 MS. HARRIGFELD: Well, I just concur with what Mr. 25 Nomellini said. I think this is very relevant to how water CAPITOL REPORTERS (916) 923-5447 6810 1 quality releases are or made or what is and can be delivered 2 to CVP contractors under the scheme. I think it is very 3 relevant. 4 C.O. CAFFREY: Thank you very much. 5 Mr. Herrick. 6 MR. HERRICK: Thank you, Mr. Chairman. 7 I would just like to echo that. Although the notice 8 says we are not here to determine these in-stream flows from 9 the tributaries, that doesn't mean that the topic is not 10 available for discussion, especially since in this phase we 11 are trying to determine the best way to address the salinity 12 issues on the San Joaquin River and South Delta. And the 13 only way they are being addressed right now are releases 14 from New Melones. 15 So the calculation of how much water is available for 16 that purpose is necessarily relevant, even though the ruling 17 here on what can and cannot be done does not have to and 18 will not say the Stanislaus River has to have X amount of 19 water for fishes. I think you cannot do one without the 20 other. 21 C.O. CAFFREY: Thank you, Mr. Herrick. 22 Mr. Campbell, do you have anything in addition? 23 MR. CAMPBELL: In getting back to -- the specific 24 question goes to what is the scientific basis, the 25 biological basis for this range of in-stream flow CAPITOL REPORTERS (916) 923-5447 6811 1 requirements between 98,000 and 302,000. If we are going 2 to do this on this stream, are we going to do this on every 3 stream? Does the Department of Fish and Game need to bring 4 biologists in rebuttal testimony for every single tributary 5 to redebate these issues that have already been debated, at 6 least on an interim basis, for the purpose of the 1987 DFG 7 Agreement and for other tributaries that have not been 8 determined yet? 9 And if we are going to get into what is the scientific 10 basis for in-stream flow requirement, I think we will double 11 the time necessary to conduct this hearing. 12 C.O. CAFFREY: Whatever that may be. 13 MR. CAMPBELL: Whatever that may be. 14 C.O. CAFFREY: I don't know if you can double 15 infinity. 16 I am going to give Ms. Harrigfeld the last word, but 17 first I want to hear from Mr. Nomellini. 18 MR. NOMELLINI: The question was not whether or not the 19 source was a study on 302,000 as the maximum. It was 20 actually a compound question, and it was with regard to 21 whether or not -- the other part of the compound was -- 22 MEMBER DEL PIERO: Thank you for sharing. 23 MR. NOMELLINI: -- or was it a figure picked for the 24 interim period while the studies were being conducted in 25 order to determine what the in-stream flow requirements are? CAPITOL REPORTERS (916) 923-5447 6812 1 That agreement was executed in 1987 and anticipated seven 2 years which would have brought us to '94. 3 The studies, obviously, were not conducted. Testimony 4 here being presented is that some of these studies are now 5 underway. So, it's highly suspicious and it deserves 6 further inquiry as to whether or not these figures are being 7 kept up in the air, and then they add another couple hundred 8 thousand or 150,000 on top of that for CVPIA. 9 MEMBER FORSTER: Is this testimony? 10 MR. NOMELLINI: We should be able to pursue it. 11 C.O. CAFFREY: I want to thank Mr. Nomellini for that 12 very compound commentary on the compound question. 13 Ms. Harrigfeld, why don't you close and then we will 14 have a little consultation up here. 15 MS. HARRIGFELD: Certainly. This question is not 16 trying to get at the scientific basis for the numbers. Mr. 17 Ploss did testify that he had reviewed the 1987 agreement. 18 And my question was: Did they pick it out of a hat, or was 19 there scientific documentation in this agreement that chose 20 the 302,000 maximum? 21 C.O. CAFFREY: Thank you. We will be back in a minute. 22 We are going off the record. 23 (Discussion held off the record.) 24 C.O. CAFFREY: We are back. 25 This is the ruling: We have determined that questions CAPITOL REPORTERS (916) 923-5447 6813 1 that go to the scientific reasoning of the allocations goes 2 beyond the scope of the hearing and leads to an entirely 3 different area beyond the scope of this proceeding, as Mr. 4 Campbell has stated. And I will disallow the question, 5 because if Mr. Ploss were to answer the question yes, it 6 leads to the very avenue that Mr. Campbell was objecting 7 to. 8 On the other hand, I will allow Ms. Harrigfeld, if she 9 so desires, to ask questions as to the impact, the water 10 impact, of the allocations, but not the scientific basis for 11 the reasoning for the allocations. 12 You may proceed on that basis, if that makes sense. Go 13 ahead. 14 MR. PLOSS: May we go off the record a minute? 15 MR. BRANDT: On the record. 16 C.O. CAFFREY: On the record, Mr. Ploss. 17 MR. PLOSS: I take exception to the comment that we are 18 cheating on the fish releases to support our exports. Our 19 operation records are open to the public. They can review 20 them. The records are provided to the Board. If someone 21 believes we are cheating in our operations, they should file 22 the appropriate protest and have it heard. 23 C.O. CAFFREY: Thank you, Mr. Ploss. 24 I am going to make a statement that from time to time 25 in the heat of the moment statements are made in this room CAPITOL REPORTERS (916) 923-5447 6814 1 by some of the parties that border on the provocative, and 2 perhaps that particular statement falls into that category. 3 When any witness feels the need to make a clarification 4 along those lines or to make a commentary, we will allow 5 that. 6 Thank for your comment, sir. 7 Please proceed, Ms. Harrigfeld. 8 MS. HARRIGFELD: I would like you to turn to Exhibit A 9 of the 1987 Fish and Game's Bureau Agreement. Someone 10 yesterday went through and asked you a series of questions 11 regarding the studies that are required under this 12 agreement. And you went through, and it was your testimony 13 that -- and it was your testimony today that none of the 14 studies have been completed except the IFIM. 15 Is that correct? 16 MR. PLOSS: That is correct. 17 MS. HARRIGFELD: I have the -- which is marked as 18 Stockton East Exhibit Number 39 which is a copy of the 19 IFIM study. Are you familiar with this? 20 MR. PLOSS: I am aware of the study. I have not 21 reviewed it myself. 22 MS. HARRIGFELD: I would like to -- could you read for 23 me the section regarding the conclusion on what is required 24 for annual fishery releases, which is the last sentence in 25 the paragraph on Page 1. CAPITOL REPORTERS (916) 923-5447 6815 1 MR. PLOSS: In general, the annual fishery flow 2 release of 156,000 acre-feet would provide 3 maximum physical habitat availability within a 4 24-mile study reach. (Reading.) 5 MS. HARRIGFELD: To your knowledge, is this the only 6 fishery studies which has been produced which shows the fish 7 needs? 8 MR. PLOSS: To my knowledge, this is the only study, 9 yes. 10 MS. HARRIGFELD: Are you familiar with the AFRP draft 11 flows? 12 MR. PLOSS: Yes. 13 MS. HARRIGFELD: Do you know what those AFRP draft 14 flows were based upon? 15 MR. PLOSS: Those were based on studies by Fish and 16 Wildlife, collection of reports and analysis from other 17 agencies that Fish and Wildlife relied upon to come with a 18 flow schedule for releases from New Melones. 19 MS. HARRIGFELD: Is it your testimony that the only 20 flow study that has been completed is the IFIM which 21 concludes that 156,000 acre-feet is what fish need? 22 MR. PLOSS: I believe so, in determining what the 23 habitat requirement would be, yes. 24 MS. HARRIGFELD: Isn't the purpose of the AFRP fish 25 flows to accomplish the fish doubling as required in CVPIA? CAPITOL REPORTERS (916) 923-5447 6816 1 MR. PLOSS: Yes. 2 MS. HARRIGFELD: Are the AFRP flows needed to double 3 anadromous fish or are they needed to sustain the Stanislaus 4 fishery population? 5 MR. PLOSS: I don't believe I am knowledgeable enough 6 of the approach used in the AFRP plan to give you an answer 7 to that. 8 MS. HARRIGFELD: But the purpose of AFRP flows are for 9 fish doubling? 10 MR. PLOSS: Fish doubling in the Central Valley, yes. 11 MS. HARRIGFELD: Isn't one of the purposes of the VAMP 12 to determine impact of exports on Stanislaus River 13 fisheries? 14 MR. PLOSS: No. 15 MS. HARRIGFELD: What is the purpose of VAMP? 16 MR. PLOSS: The purpose of VAMP is to collect data to 17 better define the flow requirements during the April/May 18 pulse period at Vernalis. 19 MS. HARRIGFELD: There's been quite a bit of 20 discussion regarding the San Joaquin River Agreement and as 21 it relates to the Interim Plan of Operation. 22 Is it your testimony that the San Joaquin River 23 Agreement assumes that the Interim Plan will be in effect 24 for 12 years? 25 MR. PLOSS: No. The San Joaquin River Agreement CAPITOL REPORTERS (916) 923-5447 6817 1 assumed the Interim Operation Plan for New Melones as the 2 basis for that agreement and how the analysis was conducted 3 leading up to that agreement. It also recognized that the 4 Interim Operation Plan could be modified or replaced by a 5 long-term operation plan for New Melones. 6 MS. HARRIGFELD: Isn't it true that the Stanislaus 7 stakeholders did not agree to an extension of the Interim 8 Plan for a 12-year period? 9 MR. PLOSS: That is correct. At the stakeholder 10 meetings the Interim Operation Plan was in effect for 1996 11 and '97. It was extended through 1998 and it will be 12 revisited in June of '99 if it should be extended again. 13 MS. HARRIGFELD: So, the Stanislaus stakeholders did 14 not intend to have the Interim Plan be the long-term plan? 15 MR. PLOSS: No. 16 MS. HARRIGFELD: Wouldn't you conclude that in 17 conclusion of the interim plan as the baseline in the San 18 Joaquin River Agreement makes it more difficult to modify 19 New Melones' operations? 20 MR. O'LAUGHLIN: Objection. Calls for speculation. 21 C.O. CAFFREY: You can answer the question. She is 22 asking you if you agree, if you have an opinion. 23 Go ahead, Mr. Ploss. 24 MR. PLOSS: I don't believe so. The San Joaquin River 25 Agreement needed to be based on something. The best CAPITOL REPORTERS (916) 923-5447 6818 1 information that was available at the time and is available 2 today is the Interim Operation Plan for New Melones. That 3 is what the San Joaquin River agreement was based on. The 4 agreement recognizes that modifications may take place, so 5 it left it open in the future that changes could be made. 6 MS. HARRIGFELD: Doesn't it necessarily restrict the 7 Bureau's ability or options? 8 MR. PLOSS: I do not believe so. We are moving forward 9 with developing a long-term plan for New Melones. We will 10 be looking at a broad range of alternatives for that 11 operation. The San Joaquin River Agreement only being one 12 alternative. 13 MS. HARRIGFELD: Isn't it true that part of the 14 long-term planning process for New Melones will be to 15 develop new in-stream flow requirements based on completion 16 of the studies contemplated in the '87 agreement? 17 MR. PLOSS: Yes. There will be further in-stream 18 studies as well as temperature studies that will be done. 19 MS. HARRIGFELD: Is it your opinion that inclusion of 20 the interim plan base flows in the San Joaquin River 21 Agreement will make it more difficult to reduce fish flows 22 in the Stanislaus? 23 MR. PLOSS: I don't believe so. What happens on the 24 Stanislaus River is independent of the San Joaquin River 25 Agreement, and modifications are made to the fish flows on CAPITOL REPORTERS (916) 923-5447 6819 1 the Stanislaus River as a result of in-stream studies and 2 temperature analysis. Those will be factored forward into 3 the planning for the operation of New Melones. 4 MS. HARRIGFELD: Thank you. 5 That is all I have. 6 C.O. CAFFREY: Thank you, Ms. Harrigfeld. 7 By a showing of hands, how many of the parties wish to 8 recross? 9 Mr. Nomellini, Mr. Campbell, Mr. Herrick, Mr. Minasian, 10 Mr. Sexton, Mr. O'Laughlin, Ms. Cahill, Mr. Jackson. 11 Mr. Brandt, we'll start with you, of course. 12 C.O. CAFFREY: We'll go in this order: Mr. Brandt, 13 Mr. Minasian, Mr. Jackson, Mr. Nomellini, Mr. Campbell, Mr. 14 Herrick, Mr. Sexton, Mr. O'Laughlin and Ms. Cahill. That 15 was random on my part. Please don't read anything into the 16 order. 17 All right, then, Mr. Brandt, would you like to 18 proceed. 19 MR. BRANDT: Thank you, Mr. Chairman. I just have a 20 few questions. 21 C.O. CAFFREY: Remembering to the extent we can all 22 remember, we will do our best to keep the scope of the 23 recross within the scope of the redirect. 24 Thank you, sir. Please proceed. 25 MR. BRANDT: Thank you. CAPITOL REPORTERS (916) 923-5447 6820 1 ---oOo-- 2 RECROSS-EXAMINATION OF LOWELL PLOSS 3 BY DEPARTMENT OF THE INTERIOR 4 BY MR. BRANDT 5 MR. BRANDT: Mr. Ploss, you have been asked a number of 6 questions about providing supplies of New Melones water to 7 various demands. My question is: Is there enough water to 8 meet all the demands including the water quality standards, 9 CVP contractors, fishery releases, all those things? Is 10 there enough water over the long term? 11 MR. JACKSON: Object on the ground the question is 12 vague, enough water where? 13 MR. BRANDT: I would specify in New Melones. 14 MR. JACKSON: Only in New Melones? 15 MR. BRANDT: Yes. 16 C.O. CAFFREY: I would never presume to require an 17 officer of the court to do anything completely as I 18 instructed. It would also be helpful for the Board when you 19 are in recross if you can cite a particular question or 20 series of questions that was asked during redirect. That 21 would help us relate and to the extent that you can do that. 22 23 Mr. Nomellini. 24 MR. NOMELLINI: Could we raise the microphone a little 25 bit. CAPITOL REPORTERS (916) 923-5447 6821 1 C.O. CAFFREY: Important point. Thank you, Mr. 2 Nomellini. 3 MR. NOMELLINI: Thank you. 4 C.O. CAFFREY: You can sit in your seat to 5 cross-examine from there. You are not required to be at the 6 podium. 7 Please proceed. 8 MR. BRANDT: This is actually in response to the 9 questions of Ms. Harrigfeld regarding providing water for 10 CVP contractors versus Bay-Delta and all those things. My 11 question is simply this: Is there enough water in New 12 Melones alone to satisfy all the demands for New Melones 13 water, including the Bay-Delta standard, the fishery 14 releases, CVP contractors and all the other demands? 15 MR. PLOSS: I believe in response to a question 16 yesterday on Exhibit 4-G, which was the general information 17 table showing the results of the long-term model studies we 18 conducted on New Melones, in all of the instances for trying 19 to meet the purposes out of New Melones, whether it be water 20 quality, fishery flows, needs to CVP contractors out of New 21 Melones or Bay-Delta flow requirements, there were a number 22 of years where we had deficits in meeting the requirements 23 using New Melones. 24 I further responded that in developing these studies we 25 conducted other model analyses that we would dedicate New CAPITOL REPORTERS (916) 923-5447 6822 1 Melones to each of the individual specific purposes; and 2 even in those instances there was insufficient water in New 3 Melones to meet the needs. 4 And so, my response is that there is not enough water 5 in New Melones to meet all of the purposes, whether they are 6 in-stream flows on the Stanislaus River, water quality at 7 Vernalis or flow requirements at Vernalis. 8 MR. BRANDT: So there is not enough water under 9 basically any -- 10 C.O. CAFFREY: Excuse me, Mr. Brandt. Mr. Del Piero 11 wants to ask for a clarification. 12 MEMBER DEL PIERO: What year types are you talking 13 about? That is, I don't get to object. But that is an 14 overly broad statement. Is that true in very dry years? 15 Dry years? Normal years? Wet years? What year types are 16 you referring to? I have no way of being able to judge the 17 value of that statement. 18 MR. PLOSS: This is a result of the 71-year modeling. 19 It does vary by year types, certainly. Likewise, both the 20 flow objectives, water quality requirements at Vernalis and 21 in-stream flow requirements also vary with year type. 22 Generally, for both the flow requirements at Vernalis 23 and in-stream flows on the Stanislaus the wetter the year is 24 the higher the requirement. And you have some years, even 25 in wet years, you cannot meet all of those. CAPITOL REPORTERS (916) 923-5447 6823 1 MEMBER DEL PIERO: How often in wet years? How many 2 years out of 71-year hydrologic cycles do you not meet 3 standards? 4 MR. PLOSS: I don't have that breakdown here in front 5 of me, so I couldn't give you that. For example, if we 6 relied solely on New Melones to meet the Bay-Delta flow 7 requirements at Vernalis, there are 60 years out of 71 that 8 we have deficits, and that would cover a wide range of year 9 types. 10 C.O. CAFFREY: Let me try something in deference to 11 Mr. Del Piero, who the Chair has had conducting other 12 hearings in other places. I believe a lot of this 13 information is already in the record, for Mr. Del Piero's 14 information, who could not be here. We could, perhaps, have 15 staff point out that information in the transcript so Mr. 16 Del Piero can see it. 17 MEMBER DEL PIERO: There is a chart I think that was 18 either entered into evidence yesterday or put on the board 19 yesterday. But in any case that -- 20 C.O. CAFFREY: I don't mean to stymie you. 21 MEMBER DEL PIERO: The statement that was made would 22 lead one to believe that there is inadequate water in New 23 Melones in every year to meet existing demands, whether the 24 demands are based on priority right or are interruptable 25 demands based on the original allocations. There is not CAPITOL REPORTERS (916) 923-5447 6824 1 enough meat on that skeleton to be able to know exactly 2 what that means. That is why I am raising the question, Mr. 3 Chairman. 4 In that chart that was available yesterday, is there a 5 way of determining the answer to the question that I am 6 asking? 7 C.O. CAFFREY: Let's look to the staff, if they have -- 8 MEMBER DEL PIERO: Yes? No? 9 Rather than interrupt this, I will get together with 10 Howard and go over it and determine exactly what the 11 consequences are. 12 C.O. CAFFREY: Let's do this, Mr. Del Piero. We will 13 defer this question. Mr. Del Piero has offered to sit down 14 with Mr. Howard and go through the record and make sure his 15 question -- if it isn't in the record, then we will get it 16 in the record for Mr. Del Piero. 17 Mr. O'Laughlin. 18 MR. O'LAUGHLIN: If the State Board staff can provide 19 Board Member Del Piero, I think one of the key exhibits 20 would be 4-G from DOI, which shows the frequency of when 21 things occur and when they don't, and what emphasis there 22 are and what year types. 23 C.O. CAFFREY: Thank you very much. We will note that 24 and provide that. 25 MR. BRANDT: 4-I has the 71 years. It needs a little CAPITOL REPORTERS (916) 923-5447 6825 1 bit more information as well, just for the help of Mr. Del 2 Piero. 3 MEMBER DEL PIERO: I have looked at 4-I and it doesn't 4 answer the question. 5 C.O. CAFFREY: Let's see, between the two, between 6 then, somehow we will answer the questions. If not, we will 7 certainly come back and answer the questions for Mr. Del 8 Piero. 9 Again, I want to say on the record the reason he had to 10 ask those questions, he was chairing something else I asked 11 him to chair. 12 Thank you, Mr. Del Piero. 13 Where were we? Mr. Brandt, you were in the middle of 14 your questions. 15 MR. BRANDT: Mr. Ploss, so are you telling me that 16 under any of the alternatives for implementing the water 17 quality standards in the South Delta there is not enough 18 water in many years if you rely solely on New Melones? 19 MR. JACKSON: I would object to that as vague. Any of 20 the alternatives for implementing South Delta, are you 21 referring to the Board's alternatives for II-A? 22 C.O. CAFFREY: If you can be a little more specific, 23 Mr. Brandt, that would be helpful. 24 MR. BRANDT: Any of the alternatives that the Board has 25 identified for implementing these standards, the South Delta CAPITOL REPORTERS (916) 923-5447 6826 1 standards, potentially. Yes, let's start there. 2 MR. JACKSON: The Board's EIR alternatives is what we 3 are asking about? 4 MR. BRANDT: The Board's EIR alternatives for 5 implementing the South Delta water quality standards. Is 6 there enough water just relying on New Melones to meet those 7 in every year? 8 MR. HERRICK: I hate to be argumentative, but I would 9 object. I don't believe there is any redirect to Mr. Ploss 10 regarding the South Delta interior salinity standard 11 objectives. 12 C.O. CAFFREY: Thank you, Mr. Herrick. 13 Mr. Jackson. 14 MR. JACKSON: My objection would be different. 15 Basically most of the alternatives don't rely only on the 16 New Melones. So, I think this misstates the evidence. 17 Alternative 2, for instance, relies on shutting down or the 18 diminution of export pumping. Alternative 5 relies on 19 500,000 acre-feet of water from Friant. So I don't think 20 there is a factual basis for the question. 21 C.O. CAFFREY: Thank you, Mr. Jackson. Your objection 22 may be more related than you think to Mr. Herrick's, 23 dependent on the answer to the question I am about to ask 24 Mr. Brandt. 25 Mr. Brandt, could you, again I will remind you, could CAPITOL REPORTERS (916) 923-5447 6827 1 you cite what aspect of the redirect that you are referring 2 to with this question. 3 MR. BRANDT: Certainly. Ms. Harrigfeld asked a number 4 of questions about the competing demands. So, this is still 5 about the competing demands of providing New Melones water 6 to all the different competing demands. She asked a line of 7 questions about whether there is enough for CVP contractors, 8 whether there is enough for Bay-Delta water quality on the 9 graphs he did, whether there is enough for fishery releases, 10 all those kinds of things. This is a continuation of that 11 line of questions. 12 C.O. CAFFREY: Thank you, sir. I will allow it. 13 One last thing, Mr. Herrick. 14 MR. HERRICK: I don't mean to interrupt. 15 C.O. CAFFREY: Talking about the ruling, I didn't quite 16 get the full word out. 17 MR. HERRICK: I don't mean to disrupt. 18 C.O. CAFFREY: You are not disrupting. It is your 19 right, sir, go ahead. 20 MR. HERRICK: The testimony by Mr. Ploss deals with one 21 of the competing demands of Vernalis water quality 22 standard. It's my understanding that Mr. Brandt's question 23 was three interior Delta standards. There has been no 24 modeling done, I believe, regarding New Melones' releases 25 for those three interior Delta standards. We would like to CAPITOL REPORTERS (916) 923-5447 6828 1 see stuff like that, but that is not what was discussed or 2 presented. 3 MR. BRANDT: I will limit it to Vernalis. I was just 4 talking about -- I mentioned water quality standards. I 5 didn't mention -- I don't think I mentioned interior Delta 6 standards. 7 Did I use that word? 8 C.O. CAFFREY: I think you said South Delta. 9 MR. BRANDT: Yes. Let's focus on Vernalis standards, 10 which are part of the South Delta standard. 11 C.O. CAFFREY: With that correction or modification in 12 your question, we will allow Mr. Ploss to answer. 13 Go ahead, sir. 14 MR. PLOSS: The studies that we've certainly conducted 15 and that have been entered in as evidence would indicate 16 that New Melones cannot meet the water quality at Vernalis. 17 As questions were posed yesterday and I responded to and 18 Exhibit 4-G, again, there was 37 years out of 71 that we 19 would have at least one month in those years that we could 20 not meet the water quality standards at Vernalis, if it's 21 being met through operation of New Melones. 22 And I believe that there will be similar results that 23 are portrayed in the State Board's analysis, that there are 24 years where there will be deficits in meeting water quality 25 at Vernalis. CAPITOL REPORTERS (916) 923-5447 6829 1 MR. BRANDT: My next couple of questions relate to the 2 questions that Ms. Harrigfeld asked in the beginning related 3 to area of origin or water rights, those kind of things, 4 and those issues and how the Department of the Interior 5 applies area of origin to the contractors and those kinds of 6 things, the first questions she was asking. 7 Mr. Ploss, are you responsible for filing water rights 8 applications on behalf of the Bureau of Reclamation? 9 MR. PLOSS: No. 10 MR. BRANDT: Do you have an understanding of or -- 11 Strike that. 12 There has been a term used in this whole discussion of 13 "area of origin" regarding state filings. Do you understand 14 what a state filing or how do you understand what state 15 filings are in those questions regarding area of origin? 16 MR. PLOSS: This was based on my understanding and 17 previous experience that filings are made with the state for 18 permits, and I interpreted the phrase "state filings" as 19 being that, applications that are made to the State Water 20 Resources Control Board. 21 MR. BRANDT: So, they are just any state filing with 22 the State Board? 23 MR. PLOSS: Any filing with the State Board. 24 MR. BRANDT: That's how you understand it? 25 MR. PLOSS: Yes. CAPITOL REPORTERS (916) 923-5447 6830 1 MR. BRANDT: My last question is one that is -- I will 2 ask -- actually, this is an odd position since I am here 3 representing this witness. He is an adverse witness, but 4 there is one question I would just like to clarify from the 5 end of the day yesterday in Mr. Howard's question that he 6 asked at the end of the day; that is a clarification. I 7 would sort of like to be able to do that. That is up to 8 you, I suppose, because it was not part of the redirect. 9 C.O. CAFFREY: He wants to respond, Ms. Leidigh, to 10 something that was part of cross-examination yesterday. Do 11 you have any advice for us on this? 12 MS. LEIDIGH: Well, Mr. Brandt is the representative of 13 the witness. He is the witness' attorney, and I think there 14 may be an exception here for his ability to clarify his own 15 client's testimony or to, so-call, rehabilitate the 16 witness. 17 C.O. CAFFREY: Lord knows. 18 MR. BRANDT: I am not admitting that he is to be 19 rehabbed. 20 MR. PLOSS: I will need it after this. 21 C.O. CAFFREY: This has resulted in a lot of 22 rehabilitating here. 23 MEMBER DEL PIERO: You look okay to me. 24 MS. LEIDIGH: I would say in this very narrow instance 25 where he has been called as an adverse witness by a party, CAPITOL REPORTERS (916) 923-5447 6831 1 that that witness' own attorney should be allowed to ask 2 questions. 3 C.O. CAFFREY: I wanted that on the record. 4 Thank you, Ms. Leidigh. 5 I will also note that we did allow the same situation 6 for Mr. Schnagl and Mr. Grober, although they did not have 7 the advantage of counsel, except for the last one-fifth of 8 their appearance here, and I gave them that opportunity. 9 Mr. Brandt, finished with your consultation? Need more 10 time? 11 MR. BRANDT: No. 12 C.O. CAFFREY: We will allow your request. Please, 13 though, start with your preamble of what it is related to in 14 the cross-examination. 15 MR. BRANDT: Right. 16 Mr. Ploss, do you recall the question from Mr. Howard 17 yesterday about Bureau's plans for interior South Delta 18 standards? 19 MR. PLOSS: Yes, I do. 20 MR. BRANDT: Can you clarify for us whether Bureau has 21 any plans for meeting those interior South Delta standards? 22 MR. PLOSS: The plan to meet those standards is part of 23 the Interim South Delta Program that is intended to improve 24 circulation in the South Delta channels and is contemplated 25 that that would assist in the water quality at those CAPITOL REPORTERS (916) 923-5447 6832 1 stations. 2 MR. BRANDT: Thank you. That is my recross. 3 C.O. CAFFREY: Thank you very much, Mr. Brandt. 4 We will then go to Mr. Minasian. 5 Good morning, sir. 6 MR. MINASIAN: Morning. 7 ---oOo-- 8 RECROSS-EXAMINATION OF LOWELL PLOSS 9 BY EXCHANGE CONTRACTORS 10 BY MR. MINASIAN 11 MR. MINASIAN: Mr. Ploss, in Ms. Harrigfeld's 12 examination she showed you a page out of Exhibit 4-D, which 13 purported to categorize water as whether it was Bay-Delta or 14 CVP contractor water. I have put on the board Exhibit 4-G, 15 which is what a layman would call, such as myself, a 16 frequency chart. 17 Is this basically designed to tell us how frequently 18 over 71 years, based upon a model, certain goals or 19 performances can be met? 20 MR. PLOSS: Yes. 21 MR. MINASIAN: And in regard to the chart, which I will 22 put up in a moment which divided water between Bay-Delta and 23 CVP contractors, is there a portion of this frequency chart, 24 which is 4-G, which relates to the periods within which we 25 can expect performance at Vernalis with the water quality CAPITOL REPORTERS (916) 923-5447 6833 1 standard? 2 MR. PLOSS: There are two sections on here. One is the 3 Vernalis water quality, which is in the center section of 4 this chart, where we have compared the ability of our 5 modeling to demonstrate how we can meet the water quality 6 requirements at Vernalis. 7 MR. MINASIAN: The focus most recently has been upon 8 the number of deficient years, 37 out of 71, has it not? 9 MR. PLOSS: Correct. 10 MR. MINASIAN: Is there something about the model and 11 the way the model is stepped in increments that tends to 12 conservatively or overestimate the number of years in which 13 we will have some violation of the Vernalis standard? 14 MR. PLOSS: The way the modeling was conducted was 15 based on the assumptions of delivery to the west side of the 16 San Joaquin as well as how all the tributaries of the San 17 Joaquin may operate. And the model attempts to duplicate 18 the historic operations of the San Joaquin. 19 No attempt was made in this model to look at how other 20 actions may take place in the San Joaquin to improve water 21 quality. We simply looked at the historic record. And then 22 once we determined what the water quality would be on the 23 San Joaquin, then we tried, with this model, to operate New 24 Melones to meet the water quality standard. 25 MR. MINASIAN: Is the model basically on a monthly step CAPITOL REPORTERS (916) 923-5447 6834 1 basis? 2 MR. PLOSS: Yes, a monthly step basis. 3 MR. MINASIAN: The Vernalis standard is on a running 4 average basis, is it not? 5 MR. PLOSS: Yes. 6 MR. MINASIAN: What is the effect -- first, tell the 7 Board what a monthly step is. 8 MR. PLOSS: All of the input data is simply the mean 9 monthly data, and it varies with the hydrologic record. The 10 model we use, we don't have the ability to do a daily time 11 step. 12 MR. MINASIAN: So a monthly mean would mean you would 13 have to assume releases from New Melones on a monthly mean 14 basis, a 30-day calendar basis. You take the mean and you 15 assume that amount of water goes down every day for 30 days? 16 MR. PLOSS: Correct. 17 MR. MINASIAN: That isn't actually the way you operate 18 the project, is it? 19 MR. PLOSS: No, it is not. We will actually operate 20 the project based on real time data. Because of the 21 stations that are placed in the Delta, we can monitor water 22 quality, and we will adjust our operations to meet the water 23 quality requirement on a daily basis it requires. 24 MR. MINASIAN: Is the 37 years a conservative estimate? 25 Does it tend to overestimate for the human mind the number CAPITOL REPORTERS (916) 923-5447 6835 1 of years in which there will be some failure to meet 2 Vernalis at all times? 3 MR. PLOSS: I believe so. What is shown here is that 4 in those 37 years there may be, at least in some instances, 5 one month within a year that we would not meet water 6 quality. But certainly within that month there may be 7 several days that we will meet water quality. So there is a 8 variation within a month. 9 MR. MINASIAN: Because Vernalis is on a running basis, 10 and how many days running average basis is the Vernalis 11 standard set by this Board? 12 MR. PLOSS: I don't recall the number of days. 13 MR. MINASIAN: My recollection is 14-day running 14 average. Does that sound familiar? 15 MR. PLOSS: That is pretty typical for the standards 16 that are set in the Delta, yes. 17 MR. MINASIAN: So, does the model have any capacity for 18 telling us whether or not, if you alter the operations of 19 New Melones during a given month because of a problem at 20 Vernalis, whether or not you will be able to meet the 14-day 21 standard? 22 MR. PLOSS: You can get an indication by looking at the 23 preceding month and the month following to see what type of 24 trend there may be. It would take quite a bit of analysis 25 to try to go in and try to break each month down. CAPITOL REPORTERS (916) 923-5447 6836 1 MR. MINASIAN: Let's pick one of the other five 2 categories there so that we don't make this a modeling 3 seminar. Let's just for a minute talk about how the 4 modeling step basis skews the frequency. 5 Let's take the average annual deficit, which is in 6 1,000 acre-feet. And it says in the average of 71 years 7 there will be 21,000 per year that you are deficit in terms 8 of meeting the Vernalis standard; is that correct? 9 MR. PLOSS: Correct. 10 MR. MINASIAN: 21,000 acre-feet, though, is based, is 11 it not, upon a model that can't vary the flows out of New 12 Melones for the 30 calendar days? 13 MR. PLOSS: Correct. 14 MR. MINASIAN: That is, the model input has to assume 15 the exact same amount of water going down out of New Melones 16 to achieve Vernalis from the first day to the 30th day of 17 the month? 18 MR. PLOSS: That is correct. 19 MR. MINASIAN: That isn't the way it is operated, is 20 it? 21 MR. PLOSS: No. 22 MR. MINASIAN: In general, are all of those categories 23 overstatements of the risk of violating Vernalis? 24 MR. PLOSS: I would believe so. And it is a generality 25 of what the model shows, and probably on a conservative CAPITOL REPORTERS (916) 923-5447 6837 1 side. 2 MR. MINASIAN: Models are used for nefarious purposes 3 by attorneys. What are they used for by water operators? 4 MR. NOMELLINI: I object to the argumentative nature 5 of that question. Just like the term "cheating," 6 "nefarious" is an inartful choice of words. 7 MR. MINASIAN: I will -- 8 C.O. CAFFREY: Depending on which side of the argument 9 you may be on. 10 For the good of the cause, if you could rephrase the 11 question, sir. 12 MR. MINASIAN: Let me give you a hypothetical, Mr. 13 Ploss. 14 If you were on the Board and you were trying to 15 determine whether or not the Bureau of Reclamation was 16 saying, "No way will we meet Vernalis," is this model 17 helpful for that purpose? 18 MR. PLOSS: I don't believe so. The purpose for this 19 model was to guide reclamation in its planning process. 20 Based on whatever assumptions you might put into a model, 21 you get different results out of it, and that is the key. 22 Models generally should be used to do comparative 23 analysis. Because of the inaccuracies of models, because 24 they are on a monthly time step, they should be looked at 25 that if we change one of the assumptions in the model, we CAPITOL REPORTERS (916) 923-5447 6838 1 get a comparison of what the results are. Some people have 2 a tendency to try to use the results of models to direct 3 operations or to make absolute your decisions, but they're 4 intended to provide trends. 5 MR. MINASIAN: Ms. Harrigfeld also showed you a page 6 out of 4-D which had various categories up on the stream. 7 On the left-hand side there is a category called "Storage 8 plus inflow," is there not? 9 MR. PLOSS: That's correct. 10 MR. MINASIAN: There was a question asked by a Board 11 member as to the differences in the performance of this 12 project based upon water conditions. Towards the bottom of 13 that column we have large inflows and large carryover 14 storage, do we not? 15 MR. PLOSS: That's correct. 16 MR. MINASIAN: When we have large carryovers and large 17 amounts of inflow, do we have an entry in the Bay-Delta 18 column? 19 MR. PLOSS: Yes, we do. 20 MR. MINASIAN: New Melones you have testified is 21 generally not used for Bay-Delta purposes, for X2 purposes; 22 is that correct? 23 MR. PLOSS: That's correct. 24 MR. MINASIAN: But New Melones has a flood control 25 function as well, does it? CAPITOL REPORTERS (916) 923-5447 6839 1 MR. PLOSS: Yes, it does. 2 MR. MINASIAN: That is, if you have a lot of water in 3 New Melones in October, you must start reducing storage in 4 order to maintain a flood control envelope. Is that 5 correct? 6 MR. PLOSS: That's correct. 7 MR. MINASIAN: During the year you must release water 8 if there is inflow because of storms on the Stanislaus in 9 order to maintain that envelope? 10 MR. PLOSS: Yes. 11 MR. MINASIAN: When you have those sort of hydrologic 12 patterns, does it allow water to go to the Bay-Delta from 13 New Melones, allowing water to be conserved in other 14 facilities such as Auburn, Trinity or Sacramento? 15 MR. PLOSS: In a situation like this, that is true, 16 that during the wetter and even some above normal years in 17 particular months there is excess of flows that would come 18 from New Melones and the Stanislaus River that helps support 19 standards within the Delta and then relieves the requirement 20 either to adjust export operation or take water from other 21 sources. 22 MR. MINASIAN: That is a temporal, or time, factor in 23 certain water conditions on the Stanislaus that allow yield 24 to go to the Bay-Delta function; is that correct? 25 MR. PLOSS: That would be correct. CAPITOL REPORTERS (916) 923-5447 6840 1 MR. MINASIAN: But in October to March there isn't much 2 demand for water by the CVP contractors? 3 MR. PLOSS: That's correct. 4 MR. MINASIAN: So, is it really taking water away from 5 the CVP contractors off of the Stanislaus for that water 6 that is shown on 4-D to go to the Bay-Delta in those 7 circumstances? 8 MR. PLOSS: That would vary. Certainly, in actual 9 operations on how they schedule their deliveries we used 10 typical delivery patterns in this. And so, in those wetter 11 years when there is water that would be released in any 12 particular month for Bay-Delta, there would be little impact 13 to the deliveries in those months. 14 MR. MINASIAN: Some of the questions of Ms. Harrigfeld 15 were related to the final column, which shows zero water 16 going to the CVP contractors in the first two lines, which 17 are basically moderate carryover or moderate carryover and 18 low inflow. 19 Focusing for a moment on those columns, the amounts of 20 water the CVP contractors can beneficially use off of the 21 Stanislaus is generally water for direct irrigation and 22 domestic consumption, is it not? 23 MR. PLOSS: Correct. 24 MR. MINASIAN: They didn't develop a groundwater 25 recharge, direct groundwater recharge function, as was CAPITOL REPORTERS (916) 923-5447 6841 1 talked in the EIR for interim water supplies, did they? 2 MR. PLOSS: I do not believe they did. 3 MR. MINASIAN: If they did and if there was, in fact, 4 flood control releases in the sort of average water years in 5 October, there would be an ability to put water into that 6 final column for CVP contractors off the Stanislaus, would 7 there not? 8 MR. PLOSS: Right. In looking at the details in the 9 modeling analysis that supports this, in those years where 10 we show zero deliveries to contractors or less than full 11 contract amount, there are months when we would still spill 12 water from the project in some instances. 13 With the use of a conjunctive use program that water 14 could then be utilized. And part of the studies or some of 15 the studies that are being done for a long-term operation 16 plan is a conjunctive use study, to see how we could better 17 utilize some of the surplus water on the project. 18 MR. MINASIAN: Mr. Ploss, a final issue. 19 The column that is shown on 4-G, Bay-Delta, when it 20 shows zero, is the water basically being provided from the 21 Sacramento side to Bay-Delta? 22 MR. PLOSS: This primarily deals with how we meet the 23 Vernalis flows, the flow objective in the plan. And what 24 this depicts is that in those drier years, because we are 25 trying to meet fishery flows and water quality in those CAPITOL REPORTERS (916) 923-5447 6842 1 drier years, we are simply not budgeting water out of New 2 Melones to augment the flow objectives other than what would 3 be made available to the fishery flows. 4 MR. MINASIAN: Because of its location in the center of 5 California rather than towards the north, does the 6 Stanislaus River tend to get high rainfall and snow 7 conditions less often than the Sacramento? 8 MR. PLOSS: What I have seen in my five years in the 9 operations office is the Stanislaus Basin appears to get 10 less rainfall than any of the basins north or the basins 11 south. 12 MR. MINASIAN: Is that a kind of flashy characteristic 13 to the Stanislaus that people are only now starting to -- 14 C.O. CAFFREY: Mr. Minasian, excuse me. Mr. Brown has 15 a question. 16 MEMBER BROWN: When you are inputting basin are you 17 including the watershed, too? 18 MR. PLOSS: Yes. 19 MR. MINASIAN: We should talk about the watershed in 20 this particular instance, shouldn't we, Mr. Ploss, 21 hydrology, rainfall runoff? 22 MR. PLOSS: Right. It would be less. 23 MEMBER BROWN: The watershed gets less rainfall runoff 24 than the Sacramento? 25 MR. PLOSS: We have shown frequently when we have CAPITOL REPORTERS (916) 923-5447 6843 1 storms across the state, there seems to be some rain shadow, 2 you might say, on the Stanislaus watershed, that oftentimes 3 it receives less than watersheds north and south of there. 4 MEMBER BROWN: Thank you. 5 C.O. CAFFREY: With the completion of Mr. Brown's 6 questions, let me ask you, Mr. Minasian, how much more time 7 you think you will need. 8 MR. MINASIAN: That is it. 9 C.O. CAFFREY: But you didn't finish your question. I 10 thought you were in the middle of one. 11 MR. MINASIAN: I chickened out, really. I couldn't see 12 that Ms. Harrigfeld had gone into the coordination of the 13 Sacramento River and the Stanislaus in terms of operations. 14 C.O. CAFFREY: Thank you. 15 C.O. STUBCHAER: Mr. Chairman, I have one question -- a 16 comment before Mr. Minasian sits down. 17 You said you didn't want to put on a seminar on 18 modeling, but I think you did a pretty good job, in all 19 seriousness. 20 MR. MINASIAN: Thank you. 21 C.O. CAFFREY: We will take a short break and then we 22 will come back and hear from Mr. Jackson. 23 (Break taken.) 24 C.O. CAFFREY: We are back, and Mr. Jackson is 25 detained, so we will go to Mr. Nomellini and pick up with CAPITOL REPORTERS (916) 923-5447 6844 1 Mr. Jackson a little bit later. 2 Good morning, sir. 3 ---oOo-- 4 RECROSS-EXAMINATION OF LOWELL PLOSS 5 BY CENTRAL DELTA PARTIES 6 BY MR. NOMELLINI 7 MR. NOMELLINI: Mr. Chairman, Members of the Board, 8 Dante John Nomellini for Central Delta parties. 9 In the course of the redirect, Mr. Ploss, you took 10 issue with the use of the term "cheating" which I used in 11 argument on a issue pertaining to questions, and I think 12 your point is well taken, and I will withdraw that. 13 The question that I think is perfectly legitimate, 14 though, is whether or not the allocation of the water for 15 fishery purposes is really restricted to inflow in the 16 Stanislaus, inflow stream purposes in the Stanislaus, or 17 whether or not it actually serves a purpose beyond that in 18 the San Joaquin that could otherwise be addressed by flows 19 from other sources. 20 Now, would you agree that the New Melones Project is 21 being assessed in in-stream flow requirements in a greater 22 flow proportion than other CVP reservoirs? 23 MR. CAMPBELL: Objection on the grounds of relevance. 24 That question directly goes to whether there has been an 25 appropriate determination of in-stream flow requirements on CAPITOL REPORTERS (916) 923-5447 6845 1 the Stanislaus River. That is not a subject of this hearing 2 pursuant to Page 3 of the Board's hearing notice. 3 C.O. CAFFREY: Mr. Nomellini, as I had asked earlier, 4 it might help, it would be helpful if you would make a 5 reference to the line of questioning in the direct testimony 6 that you are dealing with. That way we will be able to 7 determine the relevancy a little better in the redirect, 8 excuse me. 9 MR. NOMELLINI: Ms. Harrigfeld specifically addressed 10 the IFIM study that was made on the Stanislaus that resulted 11 in 156,000 acre-feet as the maximum amount of water required 12 to achieve the maximum habitat for fish on the Stanislaus. 13 Therefore, I am pursuing that in-stream flow requirement 14 allocation. 15 If you remember where you had in previous testimony up 16 on the board, and maybe I could find the right chart, but it 17 showed that fishery flow allocation on the Stanislaus went 18 up from 4 to 457,000 acre-feet. So I wanted to pursue that 19 somewhat as a follow-up to that redirect area on the 156,000 20 acre-feet for in-stream flow purposes. 21 C.O. CAFFREY: Mr. Campbell, you had something else? 22 MR. CAMPBELL: First of all, Mr. Nomellini 23 mischaracterizes the testimony that Mr. Ploss gave. He was 24 asked a number of questions about a number of different 25 studies that were required under the 1987 Department of Fish CAPITOL REPORTERS (916) 923-5447 6846 1 and Game Agreement with the United States Bureau of 2 Reclamation. That was just one of several studies. And, in 3 fact, he testified that is the only one that has been 4 completed to date, and the other ones are still ongoing. 5 So, in that respect, if we will look at it in that 6 light, the questioning along those lines is premature. 7 Second, the fact of the results of that study is interesting 8 and informational for the Board, but to go any further than 9 that and to delve into the question of what is going to be 10 done to determine a long-term, in-stream fishery flow needs 11 for Stanislaus River and what has been done in the past to 12 determine those fishery flow needs is completely beyond the 13 scope of this hearing. 14 What we are here to do in this hearing is, in Phase V, 15 to look at -- is to determine how we are going to meet the 16 South Bay objectives. This is so far afield as to be 17 completely irrelevant, and it's specifically excluded by the 18 hearing notice. 19 C.O. CAFFREY: Thank you, Mr. Campbell. 20 Couple of other folks standing up behind you, Mr. 21 Nomellini. So we will go to Mr. Gallery first and then Mr. 22 Minasian. I didn't see when Mr. Minasian stood up. 23 Mr. Gallery, go ahead. 24 MR. GALLERY: Mr. Chairman, Phase V is about salinity 25 in the South Delta. But the project is operated for both CAPITOL REPORTERS (916) 923-5447 6847 1 salinity and fish flows, and it is impossible to analyze the 2 operation of the project or the release of water only for 3 salinity in isolation of what is happening with fish flows. 4 So it is true Phase V is not to determine in-stream flows in 5 the Stanislaus River, but you can't avoid talking about the 6 interrelationship of fishery flows to salinity uses in Phase 7 V to get to the question of salinity problems. Just no way 8 to do it. So the fact that fishery flows are discussed and 9 examined is not prevented by the notice of hearing. It's so 10 integrated with the salinity questions that you can't 11 divorce the two and talk about one in isolation with the 12 other. 13 So, if you are not going to decide in-stream fish flows 14 in the upper Stanislaus in this hearing, you can't avoid 15 talking about it and dealing with the questions of 16 salinities. 17 C.O. CAFFREY: Thank you, Mr. Gallery. 18 Mr. Minasian, and then I will allow Mr. Campbell again 19 as long as it is in addition to what was already said. 20 Go ahead, Mr. Minasian. 21 MR. MINASIAN: I would -- my personal interest is to 22 try to limit the scope of testimony. But I wonder if your 23 counsel and the Board could deal with this particular 24 problem, let's say you confirm Mr. Campbell's objection. My 25 understanding is we are also having a CEQA proceeding going CAPITOL REPORTERS (916) 923-5447 6848 1 on here in which we are considering alternatives, the impact 2 of alternatives. I am bothered by the idea that fishery 3 flows are sacrosanct. If the Board were to exclude evidence 4 or testimony, there is obviously a line you can go in terms 5 of volume, but to exclude testimony, what does the record 6 look like to the court in the future? 7 C.O. CAFFREY: Mr. Minasian, I think that your 8 statement, correct me if I am wrong, your statement presumes 9 that there would not never be such a discussion. I believe 10 Mr. Campbell is making the argument that there is a more 11 appropriate phase for this discussion, or at least that is 12 the conclusion I am drawing. 13 Would you like to comment, cover that in your comments? 14 MR. CAMPBELL: That is part of what I am saying. I am 15 not saying that there can be no mention of fishery flows. I 16 am not objecting to references to the 1987 Department of 17 Fish and Game Agreement and to the fact of the results that 18 is one of many studies under that agreement. 19 There's a line that needs to be drawn by the Board, and 20 I think it's really appropriately in response to Ms. 21 Harrigfeld's question regarding the scientific basis of the 22 existing in-stream flows in the Stanislaus River. I think 23 Mr. Nomellini's questions are going into that area and 24 crossing over that line. 25 I am not contending that there can be no reference to CAPITOL REPORTERS (916) 923-5447 6849 1 the existing regulatory requirements, in-stream flows, on 2 these rivers; that is important information. But how we got 3 there in the first place and where we are going with them in 4 the future is not a part of this Board's proceeding. 5 C.O. CAFFREY: I want to ask you a question, Mr. 6 Campbell, and I don't mean to put you on the spot. It is a 7 sincere question. 8 Do you have a thought on what would be a more 9 appropriate phase in this proceeding to have this line of 10 questioning, either in a phase that has already occurred or 11 a future phase? Do you have a thought on that? 12 MR. CAMPBELL: According to the Board's hearing notice, 13 I don't think there is an appropriate phase to take up the 14 specific issue of what is the appropriate in-stream flow on 15 tributary X by A, B, C. 16 C.O. CAFFREY: Thank you, sir. 17 We are going to go off the record here for a couple of 18 minutes. 19 Mr. Nomellini, I am going to give you a chance to -- 20 MR. NOMELLINI: I am trying to be productive. 21 C.O. CAFFREY: I will let you close, sir. 22 MR. NOMELLINI: I am recrossing after redirect. And it 23 is the redirect that sets the scope for my recross, not the 24 relevance to the proceeding, which I think we've plowed that 25 field a couple times. Without going through the whole CAPITOL REPORTERS (916) 923-5447 6850 1 thing, the concern we have with regard to the salinity on 2 the San Joaquin River, maintenance of the water quality 3 requirements, is that the use of New Melones alone is not 4 sufficient in some years to meet fishery flow requirements, 5 salinity requirements. We believe the record is clear that 6 there are violations, and, in fact, they're projected to 7 continue. 8 The allocation of water from New Melones for fish 9 purposes impacts the amount of water available in New 10 Melones to meet water quality purposes as well as contract 11 deliveries to Stockton East and so on and so forth. I 12 believe it is a legitimate area of pursuit, to see whether 13 or not the allocations to the fishery are limited to the 14 Stanislaus or whether or not they're also for purposes that 15 could be served with releases like from San Luis or Friant 16 or what have you. I think that is a legitimate subject for 17 Phase V because we are dealing with how do we meet the 18 salinity requirement on the San Joaquin and how do we do the 19 dissolved oxygen -- meet dissolved oxygen requirement. And 20 if we are -- 21 Again, it gets us over to whether or not we should -- 22 we've asked the Board to direct the Bureau in a number of 23 ways. It goes to that evidence that would support that 24 there is flexibility on the part of the Bureau to take some 25 of that fishery water and allocate it to water quality CAPITOL REPORTERS (916) 923-5447 6851 1 purposes. That is why I want to pursue it. 2 c.O. CAFFREY: I understand your reasoning, Mr. 3 Nomellini. We are going to go off the record here for a 4 minute. Thank you. 5 (Discussion held off the record.) 6 C.O. CAFFREY: Back on the record. 7 Here is the ruling, Mr. Nomellini. We are going to 8 limit your questioning to the Stanislaus and we are going to 9 allow you to ask questions about flows as they may affect 10 the Vernalis standard. We are not going to allow you to ask 11 questions as to the scientific reasons or justification for 12 fish flows. Those go outside the scope of this proceeding. 13 With that -- 14 MR. NOMELLINI: Can I ask about San Luis, which affects 15 the San Joaquin? 16 C.O. CAFFREY: I don't think on redirect. I think Ms. 17 Harrigfeld's questions are limited to the Vernalis standard, 18 were they not? So your recross is limited in scope to that 19 cross. So that is the ruling, and we will guide you if you 20 get outside of those sideboard's. 21 Please proceed. 22 I am sorry. Mr. O'Laughlin, were you going to ask a 23 question? 24 MR. O'LAUGHLIN: You did a great job. 25 C.O. CAFFREY: We are going to be -- this is not a good CAPITOL REPORTERS (916) 923-5447 6852 1 sign. I think it is a wonderful sign. 2 Please proceed. 3 MR. NOMELLINI: Let me make an offer of proof at this 4 point on the record. 5 That is allowed to pursue the cross-examination the way 6 I desired, I believe we would find that the allocation of 7 water from New Melones to in-stream flow purposes is much 8 greater than the allocation on other federal projects, in 9 particular with regard to San Luis where there is no such 10 allocation of fish, and that would help show that there is 11 something wrong with the fishery flow allocation on the 12 Stanislaus. That is an offer of proof. 13 C.O. CAFFREY: Mr. Nomellini, you're bordering on 14 testimony, and I don't want to swear you in, but I want to 15 remind you that it goes to the Board to determine the weight 16 of evidence. You have your statement on the record. I 17 won't strike it, but I will ask you to get into the level of 18 questioning within the sideboard's that I directed you to. 19 Mr. O'Laughlin. 20 MR. O'LAUGHLIN: I would move to strike it unless he is 21 truly going to firm up his offer of proof by submitting 22 testimony either now or at a later time to affirm the 23 testimony that he has just given, his offer of proof. If he 24 is not willing to do that, then I think that offer of proof 25 needs to be stricken from the record. You can't make an CAPITOL REPORTERS (916) 923-5447 6853 1 offer of proof without saying -- 2 C.O. CAFFREY: I am going to stipulate on the record 3 that my statement has stopped him from going any further. 4 It is a part of the record, and it will go to the Board 5 Members to determine the weight of evidence and value of his 6 statement. 7 Mr. Campbell. 8 MR. CAMPBELL: I request that the Board go one step 9 further and not couch it in terms of the weight of evidence, 10 but state that that is what Mr. Nomellini's comments are, 11 are not, in fact, evidence. 12 C.O. CAFFREY: Mr. Nomellini's comments are not 13 evidence. He is an officer of the court. He is not a sworn 14 witness, and that probably, at most, it could be considered, 15 if anything, a policy statement, and as such does not have 16 the weight of evidence of testimony. 17 MR. NOMELLINI: I would stipulate it is not evidence. 18 I was offering it as an offer of proof, if allowed to pursue 19 that cross-examination which I am not allowed to pursue. 20 C.O. CAFFREY: That's right. 21 MR. NOMELLINI: If I were to pursue it, I would start 22 with this man right here, and I would call him as an adverse 23 witness, and I am sure you are not going to let me do that 24 at this time. 25 Okay. Other questions? CAPITOL REPORTERS (916) 923-5447 6854 1 C.O. CAFFREY: Yes, sir, please proceed. 2 MR. NOMELLINI: Mr. Ploss, calling your attention to 3 Central Delta Water Agency 23 and the questions of Ms. 4 Harrigfeld with regard to the studies that were contemplated 5 under that agreement, the IFIM study that was referenced in 6 the questioning, is that one of the studies contemplated in 7 Central Delta Water Agency Number 23, which is the 1987 fish 8 agreement? 9 MR. PLOSS: I believe it is one of the studies that 10 supports the requirement, yes. 11 MR. NOMELLINI: What other studies were included in 12 that 87 fish agreement? 13 MR. PLOSS: I don't believe that the -- what I am 14 looking at right now is Page 2 of Exhibit A, did not 15 specifically identify studies, the type of studies that 16 would be conducted. They were studies that would deal with 17 the fishery resources, would deal with flow variations, 18 would deal with such things as temperature; and those are 19 the type of studies that are being carried out. 20 MR. NOMELLINI: Would you agree that the 87 agreement 21 contemplated that those studies, as outlined on Page 8 22 which, I think, is part of the Exhibit A, would be carried 23 out within a seven-year period? 24 MR. PLOSS: That is correct. 25 MR. NOMELLINI: Would you agree that the completion of CAPITOL REPORTERS (916) 923-5447 6855 1 those studies would have been in, like, 1994? 2 MR. PLOSS: If circumstances would have allowed, yes. 3 MR. NOMELLINI: Do you know why the studies other than 4 the IFIM were not completed as contemplated in the agreement? 5 MR. PLOSS: I don't know all of the decisions that went 6 into postponing those studies. I was not directly involved 7 at that time. But I believe it was difficult to conduct 8 studies during the drought period, particularly during years 9 when the reservoir was nearly empty. 10 MR. NOMELLINI: And with regard to the drought, do you 11 know whether or not the conditions of the drought affected 12 studies on other rivers in the same way that they did the 13 Stanislaus? 14 MR. PLOSS: I don't have knowledge of studies that were 15 conducted on other rivers and how to compare that. 16 MR. NOMELLINI: You would agree the FERC studies on the 17 Tuolumne were completed during the same period? 18 MR. PLOSS: I don't have any knowledge of those 19 studies. 20 MR. NOMELLINI: In response to questions from Ms. 21 Harrigfeld with regard to the water projections for New 22 Melones, I forget what the exhibit was, but the exhibit 23 showed that water use within the Stanislaus Basin would 24 increase over the years rather dramatically to the point 25 that in, I think it was, 2025 that the deliveries to CAPITOL REPORTERS (916) 923-5447 6856 1 Stockton East would be reduced. 2 Do you recall that exhibit? 3 MR. PLOSS: Yes, I do. 4 MR. NOMELLINI: Is that expectation that water use 5 within the basin is different for the Stanislaus than it is 6 for water use protections on other river systems in Northern 7 California? 8 MR. PLOSS: I don't understand the question when you 9 start talking about watershed protections. 10 MR. NOMELLINI: In the planning of the operations for 11 the Bureau, is it contemplated that the amount of water 12 available from the project, CVP project, will diminish as 13 water use within "areas or origin" increase? 14 MR. PLOSS: I believe that to be the case. When we 15 look at the Central Valley Project long-term protections 16 that there continues to be development or perfection of 17 water rights within the areas that are the source of our 18 water supply, yes. 19 MR. NOMELLINI: And for the period from now until the 20 year 2025, do you have any estimate of what the magnitude of 21 that reduction in a available yield for the CVP is? 22 MR. PLOSS: No, I do not. 23 MR. NOMELLINI: That is all I have. 24 C.O. STUBCHAER: Thank you, Mr. Nomellini. 25 Mr. Jackson, are you ready to recross? CAPITOL REPORTERS (916) 923-5447 6857 1 MR. JACKSON: Yes, sir. 2 ---oOo-- 3 RECROSS-EXAMINATION OF LOWELL PLOSS 4 BY THE REGIONAL COUNCIL OF RURAL COUNTIES 5 BY MR. JACKSON 6 MR. JACKSON: Mr. Ploss, calling your attention to 7 Table 2 of Government Exhibit 4-E, which is on the screen 8 right now, can you tell me how you determined the fishery 9 flow for the New Melones storage plus inflow lines, 10 2,500,000 to 3,000,000 would range from 345,000 acre-feet of 11 water to 467,000? 12 MR. PLOSS: This was developed based on recommendations 13 from U.S. Fish and Wildlife Service, the type of in-stream 14 flows that they would desire in meeting the needs of the 15 draft and Anadromous Fish Restoration Plan. We then used 16 that information, which was based on hydrologic year types, 17 and related it to the storage plus inflow to the reservoir. 18 MR. JACKSON: You indicated in your IFIM, in answer to 19 the redirect, that your IFIM had had a much smaller number 20 for in-stream flows on the Stanislaus River; is that 21 correct? 22 MR. PLOSS: That study did, yes. 23 MR. JACKSON: Does the United States Fish and Wildlife 24 Service have authority to simply give the Bureau a different 25 number? CAPITOL REPORTERS (916) 923-5447 6858 1 MR. O'LAUGHLIN: Calling for legal -- 2 MEMBER BROWN: Mr. Chairman, I have a question, a 3 clarifying question on the previous question. The flow 4 from 345 to 467, clarifying your answer, was that 5 requirement for fisheries only or did it include necessary 6 releases for flood control? 7 MR. PLOSS: Those numbers are for fisheries only. 8 MEMBER BROWN: As far as operation for flood control, 9 that's not in those figures? 10 MR. PLOSS: Correct. 11 MEMBER BROWN: Thank you. 12 C.O. STUBCHAER: Mr. Jackson. 13 MR. JACKSON: Was there some process that you went 14 through with the United States Fish and Wildlife Service in 15 order to increase the numbers from what the IFIM study said 16 to the 467,000 acre-feet? 17 MR. PLOSS: The Fish and Wildlife Service went through 18 a process which I was not involved in, under the Central 19 Valley Project Improvement Act, to consult with Department 20 of Fish and Game and Department of Water Resources in 21 developing their draft Anadromous Fish Restoration Plan and 22 then used that plan as the basis for these numbers, 23 provided these numbers to us. 24 MR. JACKSON: So these are essentially numbers from the 25 Anadromous Fish Restoration Plan? CAPITOL REPORTERS (916) 923-5447 6859 1 MR. PLOSS: We deferred to them for their expertise on 2 that. 3 MR. JACKSON: Is the Bureau going to defer to the 4 United States Fish and Wildlife Service in regard to the 5 Anadromous Fish Restoration Plan below each of your other 6 dams? 7 MR. PLOSS: We defer to them to provide those 8 recommendations. The ultimate implementation of provisions 9 of the Central Valley Project Improvement Act is left to the 10 Department of Interior so that there will be a collaboration 11 of both agencies. 12 MR. JACKSON: Is it fair to say that in looking at 13 these particular fish flows that that collaboration and 14 consultation has taken place on the Stanislaus River 15 previously, previous to these flows being put in the Interim 16 Operation Plan? 17 MR. PLOSS: For the intention of developing the Interim 18 Operation Plan which is shown on this table, yes. 19 MR. JACKSON: Now, the result of the collaboration and 20 these numbers, the practical result is that there would be 21 more water in the Delta for diversion by west side 22 contractors among others, is it not? 23 MR. PLOSS: The practical result is there will be more 24 water in the Delta. Whether or not that water is available 25 for exports depends on what standards the balance of the CAPITOL REPORTERS (916) 923-5447 6860 1 project is being operated to at any given time. So it is 2 not a clear-cut conclusion, I believe, that when we release 3 more water from New Melones we will be exporting more water. 4 C.O. STUBCHAER: I think the question was diversions, 5 not exports. The way you phrased that question, that could 6 be in-Delta diversions, couldn't it? 7 MR. JACKSON: Well, I don't know how it could be, but 8 it might. 9 C.O. STUBCHAER: The question -- I think your question 10 was diversions, not just exports. 11 MR. JACKSON: My question was diversions, not just 12 exports. 13 MR. PLOSS: I think the response is the same as -- it 14 could be exports or diversions. The more water is made 15 available for, depending on what other standards may be 16 applied. 17 MR. JACKSON: Has the Bureau -- have you looked at the 18 Draft Environmental Impact Report by the State Water Board 19 in regard to which of the alternatives increases exports to 20 the exporters from the Bureau projects? 21 MR. PLOSS: I will have to say that I have not looked 22 at it in enough detail to respond to that. 23 MR. JACKSON: In regard to the detail in which you have 24 looked at it, have you noticed in your examination that each 25 of the alternatives with larger fish flows end up with more CAPITOL REPORTERS (916) 923-5447 6861 1 exports from the Delta to the exporters? 2 MR. PLOSS: I believe all of the alternatives, as I 3 recall, result in less exports when compared against the 4 no-action alternative. 5 MR. JACKSON: Which is D-1485 in a situation that is 6 completely illegal and unlawful at this time? 7 MR. BRANDT: Argumentative. Calls for a legal 8 conclusion. 9 C.O. CAFFREY: Make reference to Mr. Nomellini's 10 comments earlier, Mr. Jackson. 11 MR. JACKSON: I am sorry, I was out when he got 12 reprimanded. 13 C.O. CAFFREY: It wasn't a reprimand; it was an 14 admission. 15 MR. JACKSON: I don't want to use Mr. Nomellini's 16 characterization of what is going on here, but is it a 17 coincidence that the Bureau's position in accepting 18 Anadromous Fish Restoration Plan flows in substitution for 19 the IFIM flows result in higher exports? 20 MR. CAMPBELL: Objection. Assumes facts not in 21 evidence. 22 MR. JACKSON: Excuse me, the State Board EIS is in 23 evidence -- EIR, excuse me. 24 C.O. CAFFREY: Mr. Campbell. 25 MR. CAMPBELL: It assumes that this IFIM study has CAPITOL REPORTERS (916) 923-5447 6862 1 some practical force and affect such that it could be 2 replaced by some other fishery flows. The IFIM study, as I 3 understand the testimony, is one component of a broader 4 Stanislaus River study which, I think, lists seven different 5 components. 6 I believe the witness testified that most of the rest 7 of that broader study has not been completed yet. So, he is 8 taking a piece out. Mr. Jackson is taking a piece out and 9 conveying it as if it is a fact, that that is the conclusion 10 of the study, which that has not been the testimony of the 11 witness. 12 MR. JACKSON: Mr. Caffrey, if I could respond, it seems 13 to me that the IFIM study was the basis of a settlement of 14 the lawsuit between Cal Fish and Game and U.S. Fish and 15 Wildlife, and we have been talking about that flow, I 16 believe 186,000 -- 156,000 acre-feet for the last couple of 17 days here. 18 MR. CAMPBELL: That is incorrect. The IFIM study 19 wasn't completed until 1993. The DFG agreement with the 20 U.S. Bureau of Reclamation was executed in 1987. 21 C.O. CAFFREY: Based on some of the information that 22 has gone on in this colloquy, Mr. Jackson, maybe you can 23 rephrase the question to make it a little more accurate. 24 And I am inclined to allow such a question. 25 MR. JACKSON: Let's see if I can get it within the CAPITOL REPORTERS (916) 923-5447 6863 1 range of allowable. 2 C.O. CAFFREY: Please, sir. 3 MR. JACKSON: Mr. Ploss, there was a fish flow settled 4 on between California Department of Fish and Game and the 5 Bureau as result of a lawsuit, was there not? 6 MR. PLOSS: There was an agreement that was entered 7 into that provided a process for providing flows on the 8 Stanislaus River and to conduct necessary studies. 9 MR. JACKSON: And the -- was there a flow regime as 10 part of that agreement? 11 MR. PLOSS: Yes, there was. That would be a minimum of 12 98,300, up to a maximum of 302,100. 13 MR. JACKSON: In looking at Table 2, there are flows 14 substantially above the maximum, and it looks like there are 15 flows substantially below the minimum; is that correct? 16 MR. PLOSS: That's correct. 17 MR. JACKSON: So the Interim Operating Plan is 18 operating both above the maximum of that agreement and below 19 the minimum in that agreement; is that correct? 20 MR. PLOSS: That is correct. As I pointed out in 21 earlier testimony, if you look at this Exhibit 4-E, the 22 line, the top line, is from 0 to 1,400,00 acre-feet, which 23 is a storage plus inflow; it's italics. That does go below 24 98,000 acre-feet for fisheries. 25 The reason for that in developing the Interim Operation CAPITOL REPORTERS (916) 923-5447 6864 1 Plan, fortunately for all of the parties, we're not facing 2 -- we're not facing that type of condition the last two 3 years. We recognize there would be significant conflict 4 under a repeat of the drought conditions. And so it does 5 show a range from 0 to 98,000. And the reason it is in 6 italics is to indicate that no agreement was reached among 7 the stakeholders or any discussion among the stakeholders as 8 to how we would operate the project under that condition. 9 What you see on here when you look at flows between 10 3,000,000 and 6,000,000, the maximum fishery release being 11 467,000 acre-feet, this is in recognition of the 12 recommendations from U.S. Fish and Wildlife Service based on 13 their work on the draft Anadromous Fish Restoration Plan as 14 part of the Central Valley Project Improvement Act, which 15 was enacted in 1992 and directs the Department of the 16 Interior to develop the necessary plans and operate the 17 project for fish and wildlife benefits. 18 MR. JACKSON: So the draft plan, in terms of the amount 19 of water above 302,000, the draft Anadromous Fish 20 Restoration Plan is being implemented by the Interim 21 Operating Agreement on the Stanislaus River? 22 MR. PLOSS: The Interim Operation Agreement is being 23 operated on recommendations from Fish and Wildlife. Part of 24 their basis being the draft Anadromous Fish Restoration 25 Plan. I don't believe we would say that that plan is being CAPITOL REPORTERS (916) 923-5447 6865 1 implemented, but they use that plan as their basis for the 2 recommendations to us. 3 MR. JACKSON: You have -- the Bureau has agreed to that 4 and instituted it through the Interim Operating Plan. 5 MR. PLOSS: That's correct. 6 MR. JACKSON: Below the 98,000, is in italics on this 7 Table 2, government Exhibit 4-E? 8 MR. PLOSS: Correct. 9 MR. JACKSON: You indicated that the stakeholders had 10 not agreed to go below the 98,000 that is the minimum in 11 your agreement with California Department of Fish and Game. 12 Did California Department of Fish and Game agree to the 13 operation below 98,000 that is reflected in your New Melones 14 storage versus inflow in the first column? 15 MR. PLOSS: There was no need to agree to that because 16 in the past two years, while we operate under the Interim 17 Operation Plan, that condition never existed, and, 18 therefore, was never discussed. So there was no need for 19 agreement. 20 MR. JACKSON: So the answer would be did the 21 California Department of Fish and Game agree to operating 22 the river below 98,000 acre-feet for fish flow? 23 MR. O'LAUGHLIN: Objection. Asked and answered. 24 MR. JACKSON: I don't think it was answered. 25 MR. O'LAUGHLIN: You didn't like the answer, but he CAPITOL REPORTERS (916) 923-5447 6866 1 gave an answer to your question. 2 C.O. CAFFREY: Well, through the Chair, gentlemen. 3 And, Counselor, do you agree the question was asked and 4 answered? 5 MR. BRANDT: You are asking me? 6 C.O. CAFFREY: Yes, he is your witness. 7 MR. BRANDT: Yes. 8 MR. JACKSON: I do not believe that the question was 9 answered. I would like to ask it again. 10 Did the Department of Fish and Game agree to operate 11 the river in any condition to have less than 98,000 12 acre-feet applied to the fishery flow on the Stanislaus 13 River? 14 C.O. CAFFREY: Now that you have asked it, I didn't 15 interrupt you, I was allowing you to do so. I will ask the 16 witness to take another stab at the answer, and then we will 17 move on. 18 MR. PLOSS: That will be a subject of the development 19 of the long-term operation plan. They were not asked to 20 agree to that in the past two years under the interim, 21 because the condition did not exist. So, I would say in the 22 past two years they did not agree since they were not asked. 23 MR. JACKSON: Did the United States Fish and Wildlife 24 Service agree to the operation of the Interim Plan under the 25 conditions of New Melones storage plus inflow from 0 to 1.4 CAPITOL REPORTERS (916) 923-5447 6867 1 million to operate the fishery at less than 98,000 2 acre-feet? 3 MR. PLOSS: I will give the same response, and that is 4 subject to the long-term operation plan for New Melones. 5 Since that condition did not exist the past two years, they 6 were not asked and, therefore, they did not approve. 7 MR. JACKSON: Is it fair to say, then, that in terms of 8 going below the minimum, neither fish agency has agreed, but 9 in terms of going above the maximum, you acquiesced to their 10 request to do that? 11 MR. CAMPBELL: Objection. Assumes fact not in 12 evidence. And vague, maximum being what? 13 MR. JACKSON: 302,000 acre-feet. 14 MR. CAMPBELL: The objection is assumes fact not in 15 evidence. It is not a fact that 302,000 acre-feet is the 16 maximum. I believe that Mr. Ploss testified that there is a 17 separate requirement under the CVPIA that raises the maximum 18 to 467,000. 19 C.O. CAFFREY: Is that your recollection of your 20 testimony, Mr. Ploss? 21 MR. PLOSS: Yes. 22 C.O. CAFFREY: Thank you, sir. 23 You want to rephrase your question, Mr. Jackson. 24 MR. JACKSON: Yes. 25 In what document is the fish flow maximum raised from CAPITOL REPORTERS (916) 923-5447 6868 1 302,000 to 467,000? 2 MR. PLOSS: That is given in the Interim Operation Plan 3 that was used for New Melones based on recommendations from 4 Fish and Wildlife Service through the stakeholder process 5 that was used to develop that plan. 6 MR. JACKSON: In the stakeholder process, let's do 7 these one at a time. There was no consensus in the 8 stakeholder process to raise the maximum, was there? 9 MR. PLOSS: I don't believe I could respond to what the 10 consensus was of the group. There was a general 11 understanding that under the conditions that we were looking 12 at in the two years that they used the Interim Operation 13 Plan that it was an operation that could be carried out, 14 that the stakeholders generally agreed to under the 15 conditions that we were looking at. There was not an effort 16 to pick apart the operation and achieve consensus on each 17 individual element. 18 MR. JACKSON: You listed a group of stakeholders on the 19 Stanislaus. I am going to pick some of them. 20 Did the United States Fish and Wildlife Service agree 21 to raising the maximum flows, or were they one of the 22 stakeholders? 23 Excuse me, let me do the foundational thing. 24 Was the United States Fish and Wildlife Service one of 25 the Stanislaus stakeholders? CAPITOL REPORTERS (916) 923-5447 6869 1 MR. PLOSS: They participated in the stakeholder 2 meetings, yes. 3 MR. JACKSON: So, participation indicated that you were 4 one of the stakeholders; is that the way they are defined? 5 MR. PLOSS: We put no boundaries on the membership of 6 the stakeholder group. Anyone that desired to attend the 7 meetings were welcome and provided input. 8 MR. JACKSON: Did South Delta Water Agency appear at 9 the meetings? 10 MR. PLOSS: Yes. 11 MR. JACKSON: Did they agree to the raising of the 12 maximum fish flow from 302,000 to 467,000? 13 MR. PLOSS: I don't recall if they provided any 14 specific agreement. 15 MR. JACKSON: Did Central Delta appear at the meetings? 16 MR. PLOSS: Yes, they did. 17 MR. JACKSON: Did they agree? 18 MR. PLOSS: I don't recall if they provided a specific 19 agreement. 20 MR. JACKSON: Did Tuolumne County appear at the 21 meetings? 22 MR. PLOSS: I believe they did. 23 MR. JACKSON: Did they agree? 24 MR. PLOSS: I don't know if they provided any specific 25 agreement to raising the flows. CAPITOL REPORTERS (916) 923-5447 6870 1 MR. JACKSON: Did Stockton East appear at the meetings? 2 MR. PLOSS: Yes, they did. 3 MR. JACKSON: Did they agree? 4 MR. PLOSS: I don't believe they provided specific 5 agreement. 6 MR. JACKSON: Did Central Delta Water Conservation 7 District appear at the meetings? 8 MR. PLOSS: Yes. 9 MR. JACKSON: Did they agree? 10 MR. PLOSS: I don't believe they provided a specific 11 agreement. 12 MR. JACKSON: Who did agree? 13 MR. PLOSS: As I responded to an earlier question, all 14 the parties looked at the conditions that we were facing in 15 the operation of New Melones in the last two years and 16 concluded that the operations that we portrayed in the 17 Interim Plan was sufficient and could be carried out. There 18 was no specific agreements to any individual elements within 19 that plan. 20 MR. JACKSON: In other words, it is your testimony that 21 the districts which we have talked about specifically all 22 agreed to the Interim Operating Plan for New Melones to go 23 through the years of '97 and '98? 24 MR. PLOSS: The stakeholder process was not to look for 25 unanimous agreement. It was to develop a plan that could be CAPITOL REPORTERS (916) 923-5447 6871 1 used for the two years to operate the project. You might be 2 able to characterize it as consensus, again, not being 100 3 percent agreement to the plan, but a plan that everyone felt 4 that we could use to manage the project. 5 MR. JACKSON: Was this consensus agreement, this 6 stakeholder negotiations done under the Federal Advisory 7 Committee Act? 8 MR. PLOSS: It was not an advisory committee. It was 9 just a general meeting of parties that were interested. We 10 called them stakeholders. It was not done under the Federal 11 Advisory Committee Act. 12 MR. JACKSON: Were there any formal procedures for 13 agreement on the Interim Plan that were issued by the 14 stakeholders for the Bureau? 15 MR. PLOSS: No, there was not. 16 MR. JACKSON: Thank you. 17 I have no further questions. 18 C.O. CAFFREY: Thank you, Mr. Jackson. 19 Mr. Campbell, how much time do you think you require? 20 I am just inquiring in terms of what time to break for 21 lunch. 22 MR. CAMPBELL: Not very long. I have a few questions. 23 C.O. CAFFREY: Five or ten minutes? 24 MR. CAMPBELL: I believe so. 25 C.O. CAFFREY: Let's go now. CAPITOL REPORTERS (916) 923-5447 6872 1 ---oOo-- 2 RECROSS-EXAMINATION OF LOWELL PLOSS 3 BY THE DEPARTMENT OF FISH AND GAME 4 BY MR. CAMPBELL 5 MR. CAMPBELL: Matthew Campbell of the Attorney 6 General's Office on behalf of the Department of Fish and 7 Game. 8 Mr. Ploss, I would like to ask you a few questions in 9 response to two lines of questioning that Ms. Harrigfeld 10 provided during her redirect. One is the relative, I think 11 her term, was priority that the Bureau assigns to its water 12 allocations from New Melones and, two, the 1987 Department 13 of Fish and Game agreement -- I want to read the title, 14 "Agreement Between California Department of Fish and Game 15 and the United States Department of the Interior Bureau of 16 Reclamation Regarding Interim In-Stream Flows and Fishery 17 Studies in the Stanislaus River Below New Melones 18 Reservoir," which has been marked as Central Delta Water 19 Agency Exhibit 23. My first question is with regard to that 20 exhibit. 21 The purpose of this agreement is to -- it's in-stream 22 flows; is that correct? 23 MR. PLOSS: That's correct. 24 MR. CAMPBELL: That is the exclusive purpose of the 25 agreement relative to other considerations, such as CAPITOL REPORTERS (916) 923-5447 6873 1 Bay-Delta flows? 2 MR. PLOSS: Correct. 3 MR. CAMPBELL: The agreement was the result of a 4 protest filed by the Department of Fish and Game? 5 MR. PLOSS: Yes, it was. 6 MR. CAMPBELL: In your earlier testimony I believe you 7 testified that the fishery flows, the in-stream flow 8 requirements are provided by the Bureau from New Melones 9 before it fulfills its water service contracts; is that 10 correct? 11 MR. PLOSS: That is correct. 12 MR. CAMPBELL: How does that work in relation to the 13 1987 Department of Fish and Game Agreement marked as Central 14 Delta Water Agency Exhibit 23? 15 MR. PLOSS: The agreement in general terms identifies 16 how we will identify the quantity of water available for 17 in-stream flow conditions, using the projected inflow and 18 storage for the reservoir and subtracting all the other 19 purposes. Basically, what remains is what is available for 20 in-stream flow purposes. That was the equation in the 21 agreement that was referred to in some earlier testimony. 22 During the implementation of the -- 23 MR. CAMPBELL: May I interject? Is that the equation 24 that is attached as Exhibit C to Central Delta Water Agency 25 Exhibit 23? CAPITOL REPORTERS (916) 923-5447 6874 1 MR. PLOSS: Yes, it is. 2 During implementation of this agreement, some of those 3 purposes were not in place. For example, the Central Valley 4 Project contractors out of New Melones were not taking water 5 during the period when this was implemented, 1988 through 6 1993. And we were also going through a drought period. So 7 the principal releases out of New Melones were to existing 8 water right holders: Oakdale Irrigation District and South 9 San Joaquin Irrigation District, as well as meeting water 10 quality needs out of the reservoir. Those needs being at 11 Vernalis and also dissolved oxygen in the Stanislaus River 12 and for meeting in-stream flow conditions. 13 During that drought period, there was almost monthly 14 meetings, I believe, among the operators of the project and 15 parties on how to balance the releases to try to fulfill, to 16 the extent possible, under the hydrology the benefits out of 17 the project. And so, I will say in reality the equation was 18 not followed during those years under those conditions. 19 Then, beginning in 1992 with passage of the Central 20 Valley Project Improvement Act, we started making releases 21 in accordance with CVPIA beginning in 1993, which then 22 provided for additional in-stream flows above what would 23 come from this equation. 24 MR. CAMPBELL: As you testified here today, will it be 25 the Bureau's continuing position to allocate water for the CAPITOL REPORTERS (916) 923-5447 6875 1 in-stream flow requirements prior to servicing its water 2 contracts? 3 MR. PLOSS: We are continuing today to operate under 4 the Interim Operation Plan, which has been extended through 5 next year, and we have started studies for the long-term 6 operation plan at New Melones. Part of that will be 7 completion of the necessary studies under this agreement, 8 which we have talked about in testimony here. And once 9 those studies are completed and we have a new operation plan 10 for New Melones, this agreement does provide that we will 11 come back and prepare a final -- it actually says a final 12 agreement to this. There is anticipation that there will be 13 modifications to this agreement. 14 And out of that long planning process we will see what, 15 how the priorities for releases are determined. 16 MR. CAMPBELL: Those modifications that you anticipate, 17 they will be based upon on the studies of the study plan 18 that is set forth in Exhibit A to the agreement which is 19 marked as Central Delta Water Agency Exhibit 23? 20 MR. PLOSS: Certainly will be based on these studies 21 that are referenced here. It will also be based on 22 conjunctive use studies, recognition of change in hydrology 23 in New Melones. Those will all be factors that will be 24 taken into how we modify this agreement. 25 MR. CAMPBELL: Exhibit A references a plan of studies, CAPITOL REPORTERS (916) 923-5447 6876 1 a Stanislaus River Fishery Study. That is the -- I believe 2 that is the title of it; is that correct? 3 MR. PLOSS: Yes. 4 MR. CAMPBELL: Does the study have several components 5 to it? 6 MR. PLOSS: Yes, it does. 7 MR. CAMPBELL: Have all of the components of the study 8 been completed today? 9 MR. PLOSS: No, they have not. 10 MR. CAMPBELL: One portion of the study has been 11 completed, the IFIM portion? 12 MR. PLOSS: That's correct. 13 MR. CAMPBELL: But the study itself is not -- that is 14 only one piece. The study itself, in its entirety, will not 15 be completed until all the other components have been 16 conducted and completed; is that correct? 17 MR. PLOSS: That's correct. 18 MR. CAMPBELL: So the component that is complete, the 19 IFIM study, is not necessarily determinative of what will be 20 the ultimate outcome of the broader study; is that correct? 21 MR. PLOSS: Yes. I believe that is only one factor 22 that will be considered in the final recommendations. 23 MR. CAMPBELL: Another factor would be the temperature 24 model? 25 MR. PLOSS: Certainly, the temperature models as well CAPITOL REPORTERS (916) 923-5447 6877 1 as flows that may be required for attraction of fisheries or 2 for spring pulse flows. 3 MR. CAMPBELL: The in-stream fishery flow requirements, 4 are those consumptive uses of water? 5 MR. PLOSS: No, they are not. 6 MR. CAMPBELL: In response to Ms. Harrigfeld's 7 questions, I believe you characterized them as regulatory 8 requirements; is that correct? 9 MR. PLOSS: I believe that is how I stated it, yes. 10 MR. CAMPBELL: No further questions. 11 C.O. CAFFREY: Thank you very much, Mr. Campbell. 12 Let me make an announcement here. I was talking to Ms. 13 Whitney earlier during the break and she informed me that we 14 are about to provide a document with dates, hearing dates 15 for January and February. 16 MS. WHITNEY: January, February and March. 17 C.O. CAFFREY: That is in case we don't finish by the 18 end of December. 19 MR. O'LAUGHLIN: Phase what? 20 MS. WHITNEY: The tentative dates will be posted on the 21 Internet at the end of the day, and staff will send out a 22 notice in the near future. 23 C.O. CAFFREY: Everybody hear that? 24 Thank you very much. Let's take our -- 25 Ms. Harrigfeld. CAPITOL REPORTERS (916) 923-5447 6878 1 MS. HARRIGFELD: Who is left to cross-examine? 2 C.O. CAFFREY: Left to cross-examine we have Mr. 3 Herrick, Mr. Sexton, Mr. O'Laughlin and Ms. Cahill and, 4 then, of course, the staff and Board Members, if we have any 5 questions. 6 We will be back -- let's make it 1:15. Thank you. 7 (Luncheon break taken.) 8 ---oOo--- 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 6879 1 AFTERNOON SESSION 2 ---oOo--- 3 C.O. CAFFREY: We are back on the record. 4 Mr. Herrick, sir, are you ready to cross-examine? 5 MR. HERRICK: Yes. Thank you, Mr. Chairman, Board 6 Members. 7 ---oOo-- 8 RECROSS-EXAMINATION OF LOWELL PLOSS 9 BY SOUTH DELTA WATER AGENCY 10 BY MR. HERRICK 11 MR. HERRICK: John Herrick for South Delta Water 12 Agency. 13 Mr. Ploss, I just have two areas of questions based on 14 the redirect. I believe you said that the Bureau supports 15 the ISDP with regard to the interior Delta standard; is that 16 correct? 17 MR. PLOSS: I believe I said we were a sponsor of it 18 and, certainly, we support it, yes. 19 MR. HERRICK: Is the USBR in any way trying to work 20 with the Fish and Wildlife Service with regards to their 21 objection to the ISDP? 22 MR. PLOSS: We are active with them in trying to work 23 out the problems with the -- that they see with ISDP. And, 24 hopefully, we can resolve those so we can move forward. 25 MR. HERRICK: Does the Bureau have a position on CAPITOL REPORTERS (916) 923-5447 6880 1 whether or not the ISDP should be instituted instead of the 2 water quality objectives in the South Delta, in the interior 3 South Delta, as set forth in the '95 Water Quality Control 4 Plan? 5 MR. BRANDT: Objection. Vague. 6 C.O. CAFFREY: Do you understand the question, Mr. 7 Ploss? 8 MR. HERRICK: I can restate it. 9 C.O. CAFFREY: Go ahead, restate it, Mr. Herrick. 10 Thank you, sir. 11 MR. HERRICK: One of the possibilities as set forth in 12 the '95 plan is it deals with if a contract among the three 13 parties, Department of Water Resources, USBR, South Delta, 14 is implemented, the Board may consider, this is my term, 15 may consider that as a reason for changing the interior 16 Delta standards, which are the same, .7, 1.0 EC. I am 17 asking you if the Bureau is making a recommendation or has a 18 position as to whether or not they are asking the Board to 19 recognize the ISDP instead of interior Delta standards? 20 MR. PLOSS: We support the ISDP. We think that it is a 21 viable replacement for meeting those standards. And while 22 there is still some problems that other parties see with 23 ISDP, some environmental issues, we see it is a viable 24 replacement, yes. 25 MR. HERRICK: The other area of questions I wanted to CAPITOL REPORTERS (916) 923-5447 6881 1 ask you, you said on redirect a couple of times that New 2 Melones is incapable of meeting all the obligations on it, 3 I will state, every year type over the long haul; is that 4 correct? 5 MR. PLOSS: Yeah. I think a simple statement is it 6 can't meet everything all of the time. Cannot meet 7 everything all of the time. 8 MR. HERRICK: You stated that in the development of the 9 Interim Operation Plan you model various scenarios? 10 MR. PLOSS: We did early on. There was a number of 11 modeling studies that were run before we got to the, what I 12 might call, the final mix that was portrayed in one exhibit, 13 yes. 14 MR. HERRICK: And that was my next question. The 15 exhibits or the attachments to your exhibit that deal with 16 the Interim Operation Plan, that is the modeling for one of 17 the possibilities that was looked at; is that correct? 18 MR. PLOSS: Correct. It appeared to be where we had 19 the best balance. 20 MR. HERRICK: Is your statement that, generally, New 21 Melones can't meet all the obligations based upon the 22 Interim Operation Plan or based upon looking at all of those 23 different possibilities? 24 MEMBER FORSTER: Was looking at all the different 25 possibilities. CAPITOL REPORTERS (916) 923-5447 6882 1 MR. HERRICK: I would like to explore with you what you 2 believe are the obligations on the New Melones water. 3 Would you agree that some of the obligations are 4 contained in permit conditions? 5 MR. PLOSS: Yes. 6 MR. HERRICK: And some obligations are contained in 7 water right orders? 8 MR. PLOSS: Correct, yes. 9 MR. HERRICK: And are some of your obligations 10 contained in federal statutes? 11 MR. PLOSS: Yes. 12 MR. HERRICK: And some of your obligations are 13 contained in contracts with, I will say, water user entities? 14 MR. PLOSS: Yes. 15 MR. HERRICK: And, I guess, a possibility is some of 16 your obligations may be contained in some court decisions, 17 although I am not thinking of anything in particular? 18 MR. PLOSS: Correct. 19 MR. HERRICK: Let's look at those. Let me put up -- 20 C.O. CAFFREY: Mr. Del Piero has been replaced as 21 switchman. 22 MEMBER DEL PIERO: Six years, six years and no 23 respect. 24 C.O. CAFFREY: That is how it is around here, Mr. Del 25 Piero. Let me tell you many stories. CAPITOL REPORTERS (916) 923-5447 6883 1 MR. PETTIT: That is not in your job description. 2 MR. HERRICK: Mr. Ploss, we have on the overhead now 3 DOI Exhibit 4; I believe that says E at the bottom, which is 4 Table 2 from your testimony. Correct? 5 MR. PLOSS: Correct. 6 MR. HERRICK: Now, not listed on that -- let's identify 7 that. Those are the flows based upon storage and inflow for 8 the various purposes of New Melones water; is that correct? 9 MR. PLOSS: Correct. I think that I have identified 10 this as the budget for meeting the purposes out of the 11 project. 12 MR. HERRICK: Just for clarity, not contained upon that 13 are the flows to be released for the benefit of Oakdale and 14 San Joaquin Irrigation District; is that correct? 15 MR. PLOSS: That's correct. 16 MR. HERRICK: That is a set according to an agreement 17 you have with those agencies, and, generally, it is 600,000 18 acre-feet, or possibly less depending on water year types; 19 is that correct? 20 MR. PLOSS: That's correct. 21 MR. HERRICK: Let's just deal with that. The CVP 22 contractors on your Table 2, those deal with Stockton East 23 and South San Joaquin Water Conservation District, correct? 24 MR. BRANDT: Central San Joaquin? 25 MR. HERRICK: I am sorry. Let me say that again. CAPITOL REPORTERS (916) 923-5447 6884 1 The CVP contractors on your budget here deal with the 2 contracts the Bureau have with Stockton East Water District 3 and Central San Joaquin Water District? 4 MR. PLOSS: That's correct. 5 MR. HERRICK: What amounts are those obligations? 6 MR. PLOSS: I don't have the precise quantities in the 7 contracts. I believe it is 75- to 80,000 acre-feet agreed 8 is the contract amount for Central San Joaquin Water 9 Conservation District; and it's something slightly less than 10 100,000 acre-feet for Stockton East Water District. 11 MR. HERRICK: Did you run any -- did the Bureau perform 12 any model runs in the stakeholder process that showed 13 allocations, full allocations, to those two entities? 14 MR. PLOSS: I don't recall if that specific model run 15 was made, but I believe it may have been. 16 MR. HERRICK: The next column, going right to left, is 17 the Bay-Delta flow requirements at Vernalis? 18 MR. PLOSS: Right. 19 MR. HERRICK: Would you agree with me that there are no 20 Bay-Delta requirements as measured at Vernalis that are 21 placed upon the New Melones Project? 22 MR. PLOSS: That's correct. 23 MR. HERRICK: Did you do model runs in the stakeholder 24 process that excluded releases for Bay-Delta purposes? 25 MR. PLOSS: I believe in our modeling there was some CAPITOL REPORTERS (916) 923-5447 6885 1 that excluded any water for Bay-Delta, correct. 2 MR. HERRICK: Is there a reason why model runs 3 excluding that requirement are not being presented to the 4 Board for consideration, for review? 5 MR. PLOSS: Those were runs that were done, I believe, 6 in about 1996. What we have portrayed here is what I would 7 say is the culmination of all the modeling that we did, 8 showing the one model run that, in our opinion, was the best 9 compromise or best fit to meet all of the purposes out of 10 the project. 11 MR. HERRICK: I understand that. Would you agree that 12 the purpose of these hearings, though, is for the Board 13 potentially to decide on different requirements for New 14 Melones? 15 MR. PLOSS: It's not the way I understand these 16 hearings. These hearings are to implement the Water Quality 17 Control Plan. I don't believe to determine the different 18 allocation of water out of New Melones. 19 MR. HERRICK: Wouldn't you agree that through this 20 water right proceeding the Board may order the Bureau, as a 21 condition of its permits for New Melones, to do various 22 things? 23 MR. PLOSS: They may do that. 24 MR. HERRICK: Would one of those possibilities be to 25 meet some level of Bay-Delta flows? CAPITOL REPORTERS (916) 923-5447 6886 1 MR. PLOSS: They may do that, yes. 2 MR. HERRICK: Would you agree that it is possible that 3 the Bay-Delta flows they might order are different from the 4 Bay-Delta flows that you have presented here in Table 2? 5 MR. PLOSS: Certainly, and what is being presented here 6 is how we operated the project in the past two years, or how 7 we did the modeling to get to the Interim Operation Plan, 8 and how we are operating today, not necessarily to portray 9 how we will operate it in the future. That is part of a 10 long-term operations study that we are doing. And the 11 decision of the Board will be part of that operation plan. 12 MR. HERRICK: I understand that. If the Board changes 13 the obligations of the Bureau, such that the Interim 14 Operation Plan could not be done, would the Bureau then 15 change the Interim Operation Plan? 16 MR. PLOSS: Certainly. 17 MR. HERRICK: The next column, going right to left, is 18 the Vernalis water quality. As we saw for the CVP 19 contractors, there is actually a number; is that correct? 20 Excuse me, there is actually a maximum amount of deliveries? 21 MR. PLOSS: Yes. 22 MR. HERRICK: For the Bay-Delta flows since the Water 23 Quality Control Plan sets forth those flows, we actually can 24 calculate how much water that is? 25 MR. PLOSS: Yes. CAPITOL REPORTERS (916) 923-5447 6887 1 MR. HERRICK: For water quality, though, you would have 2 to do some modeling to determine in what year types how much 3 might be needed; is that correct? 4 MR. PLOSS: That's correct. 5 MR. HERRICK: So, in your modeling for the Vernalis 6 water quality objective, you did not, I believe, calculate 7 or budget it based upon how much was needed for water 8 quality? 9 MR. PLOSS: We did under some of the supporting work 10 that we did. We looked at quantities needed for meeting the 11 Vernalis water quality requirements. And then, in trying to 12 provide water for the other benefits here and trying to come 13 up with the best mix here, the best balance, this is the 14 flow schedule that we set or budget for water quality. And 15 I think one of the other exhibits, I believe 4-G, does 16 illustrate that there are a number of years where we are not 17 able to meet water quality with this type of a budget. 18 MR. HERRICK: Are you able to meet water quality under 19 a different type of budget? 20 MR. PLOSS: We will meet water quality under a 21 different type of budget. In more years if more water is 22 dedicated to water quality, we will meet water quality in 23 more years, but I do not believe we will meet it in all 24 years. 25 MR. HERRICK: Is it possible you will be able to meet CAPITOL REPORTERS (916) 923-5447 6888 1 the Vernalis water quality objective in more years than is 2 set forth in the modeling for the Interim Operation Plan if 3 you did not budget any water for Bay-Delta requirements? 4 MR. PLOSS: I am not certain of that. That would 5 depend on the timing, of when water quality requirements 6 need to be met versus when the water is being provided for 7 Bay-Delta flows. That may be a question of the month, of 8 timing. 9 MR. HERRICK: Clarification. It is certainly a 10 question of when that Bay-Delta water is budgeted. It may 11 or may not be able to be carried over; is that correct? 12 MR. PLOSS: It may not be carried over; or at the time 13 period that the water is released for Bay-Delta flow 14 objectives may not be a month when there would be a water 15 quality problem. 16 MR. HERRICK: For water quality would you agree that 17 the budgeting you have is, I don't know if this is the right 18 word, is opposite of what the need would be? Isn't it true 19 that it's in the drier years that you need more water rather 20 than in the wetter years? 21 MR. PLOSS: I am not certain if that is totally 22 correct. Because in drier years, while you have lower flows 23 on the San Joaquin, you may not have return flows that would 24 contribute to water quality or degradation of water quality. 25 So it is not a direct inverse. CAPITOL REPORTERS (916) 923-5447 6889 1 MR. HERRICK: In prior years you were only budgeting 2 70,000 acre-feet; isn't that correct? 3 MR. PLOSS: In prior years -- 4 MR. HERRICK: Prior to the institution of the Interim 5 Operation Plan, wasn't it the Bureau's policy to budget only 6 70,000 acre-feet per year? 7 MR. PLOSS: I believe that may have been the case 8 through those drought years, yes. 9 MR. HERRICK: In the drought years, do you have any 10 idea how much additional water was needed to meet water 11 quality? 12 MR. PLOSS: No, I do not. 13 MR. HERRICK: Would it be safe to say that it was more 14 than the 70,000 acre-feet? 15 MR. PLOSS: I believe there were instances during those 16 years where water quality was not met in every month, so it 17 would take more water. 18 MR. HERRICK: Did you run any modeling -- did you run 19 any models in the Interim Operation Plan development that 20 looked at budgeting more water in drier years than you have 21 done for the Interim Operation Plan? 22 MR. PLOSS: I believe some of the modeling looked at 23 providing all water that may have been necessary for meeting 24 water quality irregardless of the year type. So it did try 25 to determine even in dry years how much water would be CAPITOL REPORTERS (916) 923-5447 6890 1 needed. 2 MR. HERRICK: Could we get those modeling runs for 3 those instances in order to place them into the record? 4 MR. PLOSS: They may be available. Those were done and 5 presented in about March of '96. I would have to see if 6 they are available in Reclamation files. 7 MR. HERRICK: When you say "available," they may have 8 been disposed of or something? 9 MR. PLOSS: They may have been. 10 MR. HERRICK: I believe, and I think I am still 11 following the same train of meeting the obligation here, I 12 think in a prior phase you had mentioned that the budgeting 13 of 250,000 acre-feet for water quality was not based on 14 need, is that correct, for modeling purposes? 15 MR. PLOSS: Yes. It was in trying to balance all of 16 the benefits on the project. 17 MR. HERRICK: Now, does the modeling done or does the 18 modeling for Interim Operation Plan show any water not 19 needed, any of the 250,000 acre-feet not needed, does it 20 show that going back into the carryover or show that 21 allocated to other purposes that may be short? 22 MR. PLOSS: Any water that is not needed for water 23 quality is simply accounted for in the storage of the 24 reservoir, and it may go to carryover or through the 25 operation it may have been released to meet some of the CAPITOL REPORTERS (916) 923-5447 6891 1 other purposes. It is not reallocated, necessarily. 2 MR. HERRICK: So, if the 250,000 acre-feet is not based 3 on need for water quality and it goes back into carryover, 4 why is it budgeted for water quality? 5 MR. PLOSS: What we're showing here is using this table 6 when we do our operations planning, we would plan for these 7 quantities of water to meet these benefits. The actual 8 day-to-day operations may vary from that. The fishery 9 releases, for example, may meet the water quality needs in 10 any day, and, therefore, there would be no additional water 11 to augment the flows in that day for water quality. 12 So even though we would budget this water in our 13 operations planning, the end result of the actual operations 14 may be slightly different from this. 15 MR. HERRICK: I hope I'm not being argumentative. I 16 don't quite understand that answer. If 250,000 acre-feet is 17 not a number based upon need and it is not given necessarily 18 to any other use during that year if the water quality 19 doesn't need it, why do you budget 250 for water quality 20 rather than for some other purpose? 21 MR. PLOSS: These are the numbers that I call the 22 budget that we use in our operations planning. So when we 23 develop our operations forecast in February and March, we 24 have to look at what may be anticipated as a quantity of 25 water to set aside or allocate in the project to meet each CAPITOL REPORTERS (916) 923-5447 6892 1 of those benefits. 2 Knowing that fishery flows and water quality are 3 in-stream floats and one supports the other, as we operate 4 the project through the year, there may be circumstances 5 within the San Joaquin Basin, because of runoff or releases 6 from other projects or return flows that vary the water 7 quality and the actual operation as we go through the year 8 may vary from this, it simply means, then, that if we didn't 9 have to release 250,000 acre-feet in a given operating 10 season, that that water remains in storage and then becomes 11 part of the supply the following year. 12 Likewise, when we carry out our actual operations, if 13 circumstances are such that it requires more than 250,000 14 acre-feet to meet water quality, we will operate the project 15 to attempt to meet the water quality requirements in that 16 year, which then means in our actual operations at the end 17 of the water year we have less carryover storage than we 18 planned on. 19 MR. HERRICK: Is there some scenario based upon 20 historic record that would suggest that you need more than 21 250,000 acre-feet in one year for water quality purposes 22 when you have New Melones storage and inflow from 3,000,000 23 to 6,000,000 acre-feet? 24 MR. PLOSS: I don't believe so. In that particular 25 condition there would be a need for more than that. But CAPITOL REPORTERS (916) 923-5447 6893 1 there may have been. Without going back and looking at the 2 individual records, I couldn't be specific if there was any 3 years that required that amount. 4 MR. HERRICK: I am not trying to trick you on that. 5 Why, then, did you say if we needed more than 250, we 6 operated at perhaps in excess of that and thus might 7 decrease carryover? Are you saying that in a year of -- 8 let's take the bottom row. Let's take inflow -- storage is 9 zero to a million four. If it takes 250,000 acre-feet of 10 water in that year to meet water quality, are you saying the 11 Bureau will attempt to do that? Or will it follow the New 12 Melones' budgeting plan? 13 MR. PLOSS: We will attempt to release whatever water 14 is necessary to meet water quality. 15 MR. HERRICK: When you made your budgets for fishery 16 purposes, did you base those budgets on the amount of water 17 needed for fishery purposes? 18 MR. PLOSS: These are based on the recommendations from 19 U.S. Fish and Wildlife of what flow regime that they desire 20 for meeting in-stream flow requirements, yes. 21 MR. HERRICK: Whenever you made your budget for 22 Bay-Delta flows at Vernalis, did you make that budget based 23 upon what you knew was a need for Bay-Delta flows at 24 Vernalis? 25 MR. PLOSS: As far as Bay-Delta flow requirements, CAPITOL REPORTERS (916) 923-5447 6894 1 those are what we expected after we met the other benefits 2 of the project could be made available for Bay-Delta flow 3 requirements. 4 MR. HERRICK: When you made your budgets for CVP 5 contractors, you made those budget amounts based on the 6 amount you knew the obligation for contractors to be; is 7 that correct? 8 MR. PLOSS: We knew the obligations for contractors was 9 greater than this under the contracts. But in meeting the 10 other obligations of the project for fisheries and water 11 quality, this is the amount that gave us the best balance in 12 planning our operations. 13 MR. HERRICK: Is it correct for the Board or one to 14 conclude that in budgeting for every purpose except water 15 quality you made the budget amounts based upon the amount 16 needed for water quality, needed for that purpose? 17 MR. PLOSS: Restate that question. 18 MR. HERRICK: I believe you said that the budgets for 19 water quality are not based on need, but the budgeting for 20 other purposes is based on what is known as the need for 21 that purpose? 22 MS. HARRIGFELD: I object to that question. That 23 wasn't the witness' prior testimony with regards to the CVP 24 contract. He said that CVP contractors' entitlement was 25 less than what was allocated, but it was a balance. CAPITOL REPORTERS (916) 923-5447 6895 1 C.O. CAFFREY: Mr. Ploss, I was going to ask Mr. Ploss, 2 was that a mischaracterization of his testimony. 3 MR. HERRICK: I can reask it. 4 C.O. CAFFREY: Go ahead, Mr. Herrick. 5 MR. HERRICK: Let me put it this way: In your 6 budgeting for New Melones water, are you treating water 7 quality different than other obligations? 8 MR. PLOSS: I don't believe so in using this as a 9 budget. Again, this budget was developed based on the 10 output of our modeling. And the reason that you see the 11 balance that we have here was an attempt to provide the 12 optimum benefits out of the project. And these are the 13 numbers that we use in trying to plan our operations. So 14 there is not an attempt here to determine obligations for 15 one over another. 16 MR. HERRICK: What are the, that you are aware of, what 17 are the orders or permit conditions or court orders, all the 18 description of things under which obligations arrive, what 19 are the source of your obligations for meeting the Vernalis 20 water quality standard? 21 MR. PLOSS: This is under D-1485 that we have a water 22 quality requirement at Vernalis that has subsequently been 23 modified. 24 MR. HERRICK: Let me just interrupt you. I am not 25 trying to trick you. Originally D-1422 resulted in your CAPITOL REPORTERS (916) 923-5447 6896 1 permits which required you to meet the Vernalis water 2 quality objective, correct? 3 MR. PLOSS: Correct. 4 MR. HERRICK: That original objective was a 500 TDS? 5 MR. PLOSS: Correct. 6 MR. HERRICK: Then, I guess ultimately, WR 95-6 amended 7 that so the 500 TDS is now .7, 1.7 EC; is that correct? 8 MR. PLOSS: Yes. 9 MR. HERRICK: And that is a requirement that New 10 Melones meet that? 11 MR. PLOSS: That is correct. 12 MR. HERRICK: Are you aware of any limitation on that 13 obligation? 14 MR. PLOSS: Limitation with respect to quantities of 15 water? 16 MR. HERRICK: Yes. 17 MR. PLOSS: There is no limitation. 18 MR. HERRICK: Let's move to the fishery column. Let me 19 march through the obligation here. 20 It is my understanding that the 1987 agreement with 21 Department of Fish and Game sets forth, generally, a range 22 of 98,000 through 300 -- 23 MR. PLOSS: 302,000. 24 MR. HERRICK: -- 302,000. Is that an obligation on the 25 Bureau with regards to its operation of New Melones? CAPITOL REPORTERS (916) 923-5447 6897 1 MR. PLOSS: Yes. 2 MR. HERRICK: And you have budgeted amounts in excess 3 of that. I believe you said based on AFRP flows? 4 MR. PLOSS: Correct. We also have a federal obligation 5 under the Central Valley Project Improvement Act. 6 MR. HERRICK: Again, I am not trying to test your 7 memory here. The AFRP comes out of CVPIA; is that correct? 8 MR. PLOSS: That's correct. 9 MR. HERRICK: CVPIA is currently going through an 10 environmental review; is that correct? 11 MR. PLOSS: That's correct. 12 MR. HERRICK: Part of that environmental review 13 includes the AFRP flows; is that correct? 14 MR. PLOSS: I believe that is incorporated into the 15 document, yes. 16 MR. HERRICK: So, again, I am not trying to test your 17 knowledge. It is your understanding, then, that the 18 obligation arising from CVPIA will become effective after 19 the environmental review is done or before? 20 MR. PLOSS: Before. 21 MR. HERRICK: Could you explain your understanding of 22 why the obligation arises before the environmental review is 23 completed? 24 MR. PLOSS: CVPIA directed the Secretary to 25 immediately, upon enactment, to develop a plan for fish and CAPITOL REPORTERS (916) 923-5447 6898 1 wildlife purposes, for providing flows for the doubling 2 plan, and those were to be implemented. And that, because 3 of the language in CVPIA, was to be done immediately upon 4 enactment and not to be postponed until the necessary 5 environmental documents were completed. 6 MR. HERRICK: Is what you're talking about in shorthand 7 known as the (b)(2) water, the reoperation water under 8 CVPIA? 9 MR. PLOSS: Correct, the (b)(2) water. 10 MEMBER FORSTER: Is the (b)(2) water the same as AFRP 11 flows? 12 MR. PLOSS: Not exactly the same. The Anadromous Fish 13 Restoration Plan was to develop or has developed and 14 identified flow requirements on the CVP control rivers and 15 streams. The (b)(2) water is only one component of that. 16 MR. HERRICK: So, again, my question is: Isn't it true 17 that the (b)(2) water -- which is generally 800,000 18 acre-feet of yield; is that correct? 19 MR. PLOSS: Correct. 20 MR. HERRICK: Isn't it true that the (b)(2) water was 21 to be implemented immediately and pursuant to various 22 discussions was not required to have an environmental review 23 beforehand; is that correct? 24 MR. PLOSS: Correct. 25 MR. HERRICK: Do you believe the same thing is true for CAPITOL REPORTERS (916) 923-5447 6899 1 AFRP flows, which I believe you just said were a different 2 part of CVPIA? 3 MR. PLOSS: The AFRP is a draft document, has not been 4 finalized yet by the Department of the Interior. And I 5 don't know the scheduling for when that will be made final, 6 but I expect it is pending the Record of Decision on the 7 appropriate environmental impact statement for CVPIA. 8 MR. HERRICK: Is it correct to say that the Bureau has 9 voluntarily chosen to implement the AFRP before CVPIA 10 environmental review has been completed? 11 MR. PLOSS: I believe what I stated earlier is that 12 these flows out of New Melones were recommended by U.S. Fish 13 and Wildlife Service based on the draft Anadromous Fish 14 Restoration Plan. I can't testify for certain whether these 15 are the identical flows in that draft. But I would say that 16 work that went into that draft AFRP, was some of the basis 17 for this. 18 MR. HERRICK: And is it your understanding that the 19 adoption of AFRP is a current obligation of the Bureau? 20 MR. PLOSS: I believe so. It is an obligation of the 21 Department of the Interior, yes. We are part of that. 22 MR. HERRICK: In your development of the budgeting for 23 the New Melones, under fisheries you appear to meet the 24 fishery requirements in every year type; is that correct? 25 MR. PLOSS: That is the attempt here in this budget, CAPITOL REPORTERS (916) 923-5447 6900 1 yes. 2 MR. HERRICK: Again, whether the numbers are a few 3 acre-feet off, I am not trying to trick you, but the flows 4 for fisheries contained in your budgeting you believe are 5 the same flows as the AFRP flows? 6 MR. PLOSS: I believe they may be similar, but I can't 7 say they are the same. 8 MR. HERRICK: The point I am trying to make is you have 9 chosen an operation plan that fully meets fishery flows, 10 does not budget water for water quality based upon need, 11 budgets water for Bay-Delta purposes that are not 12 obligations and doesn't budget enough water for 13 contractors. Am I -- 14 MR. CAMPBELL: Objection. Assumes fact not in 15 evidence. 16 MR. HERRICK: I would like to respond if he would let 17 us know what fact -- 18 C.O. CAFFREY: Could you explain, Mr. Campbell? 19 MR. CAMPBELL: Your assumption is that it meets the 20 fishery flows under each one of those scenarios. But as he 21 testified, the flows go from a 98,000 acre-foot minimum to a 22 467,000 maximum. So, based on his testimony, it is not 23 correct that in all of those different scenarios that the 24 fishery flows are met. 25 For example in the 1400 -- CAPITOL REPORTERS (916) 923-5447 6901 1 MR. HERRICK: Is this testimony? 2 MR. CAMPBELL: I am just telling you. You asked which 3 facts that you -- 4 C.O. CAFFREY: He is explaining. 5 MR. CAMPBELL: I am responding. 6 In the flows from 1,400 to 2,000, the fishery flows are 7 98,000 now acre-feet to 125,000 acre-feet, which is over or 8 around 300,000 acre-feet less than the maximum fishery 9 flows. So based -- and he's already testified to that. So 10 your question assumes fact not in evidence. 11 C.O. CAFFREY: Let me ask -- I was going to ask Mr. 12 Ploss if he agrees with that characterization of his 13 testimony. 14 MR. BRANDT: His characterization? 15 C.O. CAFFREY: Mr. Campbell's explanation. 16 MR. PLOSS: I believe so, yes. 17 C.O. CAFFREY: I am sorry, perhaps I cut you off, Mr. 18 Herrick. 19 Did I deny you an opportunity to respond? 20 MR. HERRICK: No, that is all. 21 C.O. CAFFREY: It is a little late to be asking now. I 22 am sorry. 23 You want to try the question another way, sir? 24 MR. HERRICK: Certainly. Let's just ignore the first 25 line on your budgeting. Is it your understanding that the CAPITOL REPORTERS (916) 923-5447 6902 1 flows for fisheries on Lines 2, 3, 4 and 5 are similar, if 2 not equal, to the AFRP flows? 3 MR. PLOSS: I believe they are similar. 4 MR. HERRICK: Again, we'll ignore that first line, 5 then. In the Interim Operation Plan let's take each column 6 by itself. You have chosen a plan that does not budget 7 sufficient water for CVP contractors; is that correct? 8 MR. PLOSS: That's correct under this scheme, yes. 9 MR. HERRICK: You have chosen a plan that does not 10 budget sufficient amounts of water for Bay-Delta flows; is 11 that correct? 12 MR. PLOSS: Yes. 13 MR. HERRICK: But you have budgeted for Bay-Delta flows 14 which are not an obligation of the CVP; is that correct? 15 MR. PLOSS: Bay-Delta flows are an obligation of the 16 CVP. 17 MR. HERRICK: Did you say "are"? 18 MR. PLOSS: I believe they are under 95-6. And what we 19 have shown here is the quantity of water that can solely be 20 obligated in those wetter years for Bay-Delta flows. 21 MR. HERRICK: I think your earlier testimony in 22 response to questions from me was that you agreed that 23 Bay-Delta flows were not an obligation. Did I misunderstand 24 that? 25 MR. PLOSS: I think you just asked me if Bay-Delta CAPITOL REPORTERS (916) 923-5447 6903 1 flows were an obligation of CVP. 2 MR. HERRICK: Is it your testimony that WR 95-6 3 obligates the Bureau to meet Bay-Delta flows or contribute 4 towards that? 5 MR. PLOSS: I believe so, yes. 6 MR. HERRICK: We see, again ignoring Line 1 from your 7 budget, that you have budgeted water for water quality, but 8 I believe you said not based upon need. Is that correct? 9 MR. PLOSS: What we have budgeted here is the water 10 that is needed for water quality. And one thing I believe 11 that may be confusing is that this is the quantity of water 12 that is needed in addition to the other releases. These 13 columns are not exclusive, but are additive. 14 MR. HERRICK: I understand that. Again I am hoping I 15 am not being argumentative, Mr. Ploss. I believe you said 16 earlier and in prior phases the budgeting for water quality 17 is not based upon the need for water quality at Vernalis. 18 MR. PLOSS: It may not be based upon the total need for 19 water quality in every year. 20 MR. HERRICK: And for fishery flows on your budgeting, 21 again ignoring the first line, it is your understanding, 22 then, that you have budgeted the amount of water to meet 23 fishery flows; is that correct? 24 MR. PLOSS: That is an attempt here, yes. 25 MR. HERRICK: Is there a reason why in budgeting CAPITOL REPORTERS (916) 923-5447 6904 1 amounts for the various demands on New Melones you have 2 budgeted sufficient amounts for fishery flows but not for 3 the other demands? 4 MR. PLOSS: We viewed -- 5 MS. CAMPBELL: Objection. Vague as to sufficient 6 amounts of fishery flows. 7 MR. HERRICK: If you'd like me to respond, I don't 8 think that is vague at all, given the line of questions. 9 C.O. CAFFREY: Do you understand the question, Mr. 10 Ploss? 11 MR. PLOSS: I believe so, yes. 12 C.O. CAFFREY: Please go ahead and answer it if you 13 can. 14 MR. PLOSS: In developing our budget we have viewed 15 that providing in-stream flows on the Stanislaus River below 16 New Melones we should attempt to meet that in all cases if 17 possible. 18 MR. HERRICK: What was the basis for deciding that one 19 demand on New Melones should be fully met rather than 20 sharing the inability to meet all the demands? 21 MR. CAMPBELL: Objection. Assumes facts not in 22 evidence. The witness previously testified that fishery 23 flows are not fully met in all of those different year types 24 or those different flow regimes. There is a range of flows 25 between 98,000 acre-feet and 467,000 acre-feet; he testified CAPITOL REPORTERS (916) 923-5447 6905 1 to that. So fully met would mean 467,000 acre-feet under 2 each one of those scenarios. He already testified, and it 3 is right there, that is not the case. 4 So I object that the use of the term "fully met" 5 assumes facts not in evidence. 6 MR. HERRICK: My only comment to that is I don't 7 understand it. There has been no testimony that you have to 8 meet -- have to provide 467,000 acre-feet each year. This 9 line of questioning has been very consistent. We have 10 eliminated the first category. And when my question says 11 "budgeting water to fully meet," that is based on Mr. Ploss' 12 prior answer that the amounts on Lines 2, 3, 4 and 5 are the 13 amounts for fishery purposes, according to his 14 understanding. 15 C.O. CAFFREY: Mr. Campbell. 16 MR. CAMPBELL: In response to the same objection, which 17 is the same explanation, he did agree with my explanation 18 that there is a range. So maybe fully met the minimum 19 requirement of 98,000 acre-feet under each one of those 20 scenarios, except for 0 to 1400 cfs scenario, but not in the 21 others. And he's also testified that the purpose behind the 22 1987 DFG Agreement was that the 98,000 was not sufficient 23 and needed to be expanded. 24 C.O. CAFFREY: Just a moment. 25 (Discussion held off the record.) CAPITOL REPORTERS (916) 923-5447 6906 1 C.O. CAFFREY: We are back on the record. 2 I am going to allow Mr. Ploss to answer the question 3 and see where this leads us. 4 MR. PLOSS: May we have the question read back. 5 MR. HERRICK: I think I can repeat it. 6 C.O. CAFFREY: Go ahead and repeat it, Mr. Herrick. 7 MR. HERRICK: Mr. Ploss, on what basis did the Bureau 8 decide to budget sufficient amounts for fishery purposes 9 while not budgeting sufficient amounts for other purposes? 10 MR. PLOSS: First, the reason for budgeting the amounts 11 sufficient for meeting in-stream flow in the Stanislaus 12 River is New Melones is the only source of water available 13 for us to meet the in-stream flows. That water up to 14 467,000 acre-feet then contributes to water quality on the 15 San Joaquin River at Vernalis. In doing so, we budget up to 16 an additional 250,000 acre-feet to meet water quality on the 17 San Joaquin River at Vernalis. 18 Recognize, of course, that within the operation of the 19 project there may be other circumstances that or other 20 operations that could possibly alleviate water quality at 21 Vernalis, if that was necessary, and those have been 22 explored in my testimony earlier. But what is illustrated 23 here in Table 2 is there is well over 700,000 acre-feet of 24 water that is going toward the benefit of water quality at 25 Vernalis. And I can't say for certain what the modeling CAPITOL REPORTERS (916) 923-5447 6907 1 results would show in any of the hydrologies above two and a 2 half million acre-feet of water if water quality has been 3 violated and whether or not 250 was sufficient or not. 4 MR. HERRICK: Well, I think the question was why not 5 what you did do, why didn't you budget, then, sufficient 6 amounts for water quality and then say, of course, the water 7 quality water sometimes help fish and then determine how 8 much to do for fish? 9 MR. PLOSS: Again, because we looked at the need for 10 releases for in-stream flows first because they could only 11 be met out of New Melones, and gave that the priority 12 consideration in this budget. 13 MR. HERRICK: Aren't water quality requirements solely 14 a New Melones obligation? 15 MR. PLOSS: Yes, they are. And the fish releases 16 benefit water quality. 17 MR. HERRICK: Mr. Ploss, I apologize for having you do 18 some calculations here -- 19 C.O. CAFFREY: Mr. Herrick, while you are at it, at 20 least for the Chair and maybe for the other Board Members, 21 could you kind of give us a reminder by relinking this line 22 of questioning with what portion of the redirect we are 23 dealing with here? 24 MR. HERRICK: Certainly. It was not a very long line 25 of questioning. But in response to a couple questions on CAPITOL REPORTERS (916) 923-5447 6908 1 redirect -- 2 C.O. CAFFREY: I am talking about not necessarily where 3 you have been, but where you are going. Just so that we can 4 tie in -- this exhibit has been up for a while and maybe 5 just my lack of focus. I am somewhat not exactly focused on 6 where we are in terms of being fully related to the 7 redirect. That is all I am saying. Not passing a judgment 8 or asking you to justify what you've already asked. Just 9 give us a reminder right in the middle of it. 10 MR. HERRICK: Certainly, Mr. Chairman. 11 MEMBER BROWN: Mr. Chairman, I have some questions. 12 C.O. CAFFREY: Would you like to ask them now, 13 Mr. Brown? 14 MEMBER BROWN: If I may. We are getting kind of far 15 afield. I was going to wait until Mr. Herrick was done. Is 16 it convenient for you? 17 MR. HERRICK: Certainly. 18 C.O. CAFFREY: Perhaps Mr. Brown's question will take 19 care of the matter, anyway. 20 Go ahead, Mr. Brown. 21 MEMBER BROWN: The 90,000 acre-feet up there you have 22 for CVP contractors, is that for two contractors? 23 MR. PLOSS: Yes. 24 MEMBER BROWN: Stockton East Water District and Central 25 San Joaquin? CAPITOL REPORTERS (916) 923-5447 6909 1 MR. PLOSS: That's correct. 2 MEMBER BROWN: How much is Central San Joaquin's 3 contract? 4 MR. PLOSS: I don't have the exact number, but I 5 believe it is -- I'm going to say it is about 75- to 80,000 6 acre-feet. 7 MEMBER BROWN: How much is Stockton East Water 8 District's contract? 9 MR. PLOSS: Theirs is something less than 100,000. I 10 don't have the exact figure. 11 MEMBER BROWN: A couple hundred thousand acre-feet 12 total. When you made that contract with Central, how did 13 you intend to wheel that water to them? 14 MR. PLOSS: I believe their water is delivered to them 15 through Stockton East. I am not certain. 16 MEMBER BROWN: The contract was before the canal that 17 Stockton East put in? 18 MR. PLOSS: Right. 19 MEMBER BROWN: Did you have a contract with South San 20 Joaquin to take it out of Woodward or how? To me, the 21 contract shows you had a way of wheeling it. 22 MR. PLOSS: No, no deliveries were made prior to 23 completion of Stockton East Water District tunnel. 24 MEMBER BROWN: Why did you make a contract for a couple 25 hundred thousand acre-feet with a potential of 3- to CAPITOL REPORTERS (916) 923-5447 6910 1 6,000,000 inflow into New Melones and not have a way to 2 deliver it to them? 3 MR. PLOSS: The districts requested a water service 4 contract. We executed that contract with them. It was 5 their obligation to provide the conveyance of that water. 6 MEMBER BROWN: Okay. Then the next question is: Why 7 would you make a contract for a couple hundred thousand 8 acre-feet without the yield to deliver to them? 9 MR. PLOSS: The original contracts were based on the 10 planning studies that were done for the authorization, which 11 we delved into. But the original planning studies used the 12 1922 through 1934 hydrologic period, indicated that under 13 the conditions then and obligations on the project then that 14 there was a yield of 180,000 acre-feet of water. Those 15 contracts were, for the most part, interim supplies, 16 recognizing and acknowledging that as in-basin, in-watershed 17 development would take place that the interim supplies would 18 diminish. Those were decreasing contracts over time. 19 MEMBER BROWN: And are you saying with the runoff of 3- 20 to 6,000,000 acre-feet you are not going to have enough 21 yield to meet those contracts? 22 MR. PLOSS: This is based on the analysis that we 23 performed looking at updated hydrology that includes the 24 recent drought, which is drier than that the original 25 drought that was studied for the project, also new CAPITOL REPORTERS (916) 923-5447 6911 1 obligations, both for water quality and for fisheries, that 2 were not analyzed at this level in the original studies. 3 MEMBER BROWN: That is a 3,000,000 acre-foot increment 4 difference between those two. I don't understand. 5 MR. PLOSS: The original studies, I believe, were 6 analyzed at using 98,000 acre-feet for fish flows, included 7 that water quality could be met with no more than 70,000 8 acre-feet coming out of New Melones and produced a yield 9 then of 180,000 acre-feet. As we have seen in our 10 operations, and also here with this information, the fish 11 flows have gone up much greater than 98,000 acre-feet. And 12 it truly does take more than 70,000 acre-feet to meet water 13 quality. 14 I think another point to be made on this budget is that 15 when we talk about trying to balance all of the benefits, we 16 showed an earlier exhibit the number of years that we have 17 deficiencies. We could certainly provide much more water 18 for contractors in any year. We could provide much more 19 water for water quality in any year. But then the number of 20 years that we have deficiencies would go up. 21 The attempt made here was that we would reserve enough 22 water in the project if there happens to be a repeat of 23 another six-year drought. That is the reason what we see 24 here is a conservative budget. If we wanted to conserve 25 enough water in the reservoir for carryover for drought CAPITOL REPORTERS (916) 923-5447 6912 1 periods, we had to limit the benefits even in the wet 2 years. 3 MEMBER BROWN: Excuse me a minute. 4 C.O. CAFFREY: Mr. Brown, while you are thinking about 5 your question, do you mind -- 6 MEMBER BROWN: Go ahead, please. 7 C.O. CAFFREY: Go ahead, Mr. Del Piero. 8 MEMBER DEL PIERO: I don't want to scare anybody, I 9 mean this in all honesty. I've got a factual question I 10 would like to ask you. When you have done your subsequent 11 hydrologic analysis of the yield of reservoir, and you've 12 discovered that you had contracts outstanding that exceeded 13 what your available supply was, did you ever think about 14 reducing the contract allocation or cancelling the contract? 15 Has that ever come up at all? I know there is someone from 16 Stockton East over there that is having a heart attack. 17 MR. PLOSS: They are behind me, so be careful. 18 MEMBER DEL PIERO: I am asking it purely from a factual 19 standpoint. Has that issue ever been raised with any degree 20 of seriousness? 21 MR. PLOSS: Certainly. That is a reason -- 22 MEMBER DEL PIERO: It was engineers that figured out 23 how much water allegedly was available in the first place. 24 So I guess -- lawyers are always obligated to try to argue 25 intellectual honesty, so, I guess, engineers must, too. He CAPITOL REPORTERS (916) 923-5447 6913 1 is laughing about that. 2 I am asking it because I am not knowing how your 3 internal processes work. Has that ever happened? 4 MR. PLOSS: I know of one other instance where the 5 contracts have been cancelled out on a project. Not in 6 California, in Kansas. 7 MEMBER DEL PIERO: Was that because of absence of 8 utilization? 9 MR. PLOSS: It was an absence of yield, and the project 10 was sold to the state, by the way. If there is any buyers 11 of this one, they can come forward. 12 MEMBER DEL PIERO: That is Phase IX. 13 MR. PLOSS: Very seriously. 14 MEMBER DEL PIERO: You -- 15 C.O. CAFFREY: We have lost control of the hearing. 16 Somewhere in the last five minutes the scope of this hearing 17 has changed rather drastically. 18 MR. PLOSS: I want to respond. This is the reason we 19 have the stakeholder process for New Melones now, is because 20 we recognize that the project was not planned for the 21 severity of the drought that we recently experienced, nor 22 was the project planned for the magnitude of the water 23 needed for both fisheries and water quality, and we are 24 attempting to, through the stakeholder process, resolve 25 those issues. CAPITOL REPORTERS (916) 923-5447 6914 1 MEMBER DEL PIERO: Thank you. 2 Mr. Chairman, as I indicated, I just was interested in 3 your internal processes, and I don't want anybody to read 4 any more into the question other than the fact I didn't know 5 the answer. 6 Thank you. 7 C.O. CAFFREY: Thank you, Mr. Del Piero. 8 Now back to Mr. Stubchaer or Mr. Brown? 9 MEMBER BROWN: I am going to yield to Mr. Stubchaer. 10 C.O. CAFFREY: Thank you, Mr. Brown. 11 Mr. Stubchaer. 12 C.O. STUBCHAER: Mr. Chairman, I am not sure this is 13 within the scope of redirect, being a Board member I will 14 ask it anyway. 15 C.O. CAFFREY: We wouldn't want you to be any different 16 than anybody else. That is only humorous. There is no 17 malice in that. 18 C.O. STUBCHAER: Mr. Ploss, can you tell me the average 19 inflow into New Melones and the storage capacity of New 20 Melones? 21 MR. PLOSS: The storage capacity is 2.4 million 22 acre-feet. The 72-year average or 71-year average inflow is 23 1,060,000 acre-feet. 24 C.O. STUBCHAER: So that is a storage to inflow ratio 25 of about 1.67, approximately? CAPITOL REPORTERS (916) 923-5447 6915 1 MR. PLOSS: Yes. 2 C.O. STUBCHAER: And I think that is part of the answer 3 to Mr. Brown's question. I know that some other reservoirs 4 that I am familiar with have storage inflow capacity ratios 5 in Southern California 10 to 1 in order to develop a firm 6 yield through the drought, as you mentioned. 7 And I will just also volunteer that in the Cachuma 8 Project, which is a Bureau project, the project yield has 9 twice been reduced. The contract has not been changed, but 10 the delivery yield has been reduced permanently. 11 C.O. CAFFREY: Would you repeat that, Mr. Stubchaer, so 12 Mr. Del Piero can hear that? 13 C.O. STUBCHAER: I said that the Cachuma Project, the 14 yield has twice been reduced from contractual amount. First 15 was because of a situation such as Mr. Ploss mentioned. In 16 doing the hydrologic studies, it was in the middle of what 17 turned out to be the drought of record. They didn't know at 18 the time, so they had to reduce the yield. Because of the 19 reservoir's siltation, which reduced the capacity, another 20 recalculation was made and yield permanently reduced. 21 C.O. CAFFREY: Let me say -- thank you, Mr. Stubchaer 22 and Mr. Brown and Mr. Del Piero. 23 I want to say for the record that it is within the 24 prerogative of the Board Members to digress slightly from 25 time to time from what other people might describe as the CAPITOL REPORTERS (916) 923-5447 6916 1 scope of what we're doing. It is prerogative, and these are 2 important questions which help us understand some of the 3 questions at hand, and when deliberating it gives us a 4 context in which to weigh the evidence. So, we appreciate 5 these answers. 6 Please proceed, Mr. Herrick. Thank you for your 7 indulgence. I hope we didn't destroy your train of thought 8 entirely. If you can remind us with your next question what 9 part of the redirect it relates to, it will help us out. 10 MR. HERRICK: Mr. Ploss, again, with respect to your 11 answer that the New Melones can't meet all of the demands 12 made upon it, have you done -- has the Bureau done modeling 13 to see what obligations could be met if fishery releases 14 were limited to the 300 -- I'm sorry, I've forgotten -- the 15 302,000 cap per the 1987 agreement with the Department of 16 Fish and Game? 17 MR. PLOSS: There may have been such model studies 18 performed. I am not aware of them. 19 MR. HERRICK: Were there -- same type of question. 20 Were there model studies done with that same cap on 21 fisheries and no water release for Bay-Delta purposes? 22 MR. PLOSS: Again, I don't know what separate studies 23 our modeling staff may have done in trying to look at the 24 different releases for the reservoir. 25 MR. HERRICK: With regard to the fishery releases on CAPITOL REPORTERS (916) 923-5447 6917 1 the Stanislaus, as I believe it's been stated, there has 2 been a 1,500 cfs limitation on releases down Stanislaus; is 3 that correct? 4 MR. PLOSS: Yes. 5 MR. HERRICK: And I am not trying to trick you by my 6 calculations if you do 1,500 cfs times a 31-day pulse flow 7 times 1.9 acre-feet per day per cfs, that is only 8 approximately 92,000 acre-feet. When is the remaining water 9 of the 467,000 acre-feet released? 10 MR. PLOSS: There are recommended flows throughout the 11 entire 12-month period. Those flows are used for 12 temperature control, for the upper reach of Stanislaus 13 River, providing spawning habitat, also attraction flows and 14 rearing flows that are provided throughout the year. 15 MR. HERRICK: Again, I am not trying to trick you. 16 That is a significant number of days at 1,500 cfs, isn't it, 17 when the total releases are 467,000 acre-feet? 18 MR. PLOSS: You say "significant"? 19 MR. HERRICK: Isn't that over half the year of channel 20 capacity? 21 MR. PLOSS: The 1,500 cfs is the limitation through the 22 non-flood season. When you talked about the 1,500 cfs limit 23 for the pulse flow period, in the wetter years the pulse 24 flow period increases, I believe, to about 60 days. 25 MR. HERRICK: Not under the 1995 Water Quality Control CAPITOL REPORTERS (916) 923-5447 6918 1 Plan? 2 MR. PLOSS: No, no. It's under the recommendations, 3 under CVPIA. 4 MR. HERRICK: Which is not implemented? 5 MR. PLOSS: Yes, it is. 6 MR. HERRICK: Those releases above that 31-day pulse 7 flow, those are at times when the pulse flow limitations on 8 exports are not in existence; is that correct? 9 MR. PLOSS: Correct. 10 MR. HERRICK: I have no further questions. 11 Thank you very much. 12 C.O. CAFFREY: Thank you, Mr. Herrick. 13 Mr. Sexton. 14 Good afternoon, sir. 15 ---oOo-- 16 RECROSS-EXAMINATION OF LOWELL PLOSS 17 BY SAN LUIS AND DELTA-MENDOTA WATER AUTHORITY 18 BY MR. SEXTON 19 MR. SEXTON: Good afternoon, Mr. Chairman. 20 Michael Sexton on behalf of the San Luis and 21 Delta-Mendota Water Authority. 22 Mr. Ploss, do you remember a string of questions Ms. 23 Harrigfeld put to you which suggested that perhaps the 24 Bureau of Reclamation was not dealing with Stockton East and 25 Central regarding their contract allocations in a fair CAPITOL REPORTERS (916) 923-5447 6919 1 manner? 2 MR. PLOSS: Yes. I believe the questions were how we 3 allocated water to Stockton East and Central San Joaquin, 4 different amounts than the exporters. 5 MR. SEXTON: Now, as I understand it, the Bureau of 6 Reclamation begins its contract allocation methodology 7 computations relatively early in the year; isn't that 8 correct? 9 MR. PLOSS: Correct. We put out first official 10 allocation forecasts on the 15th of February. 11 MR. SEXTON: And that forecast is based on an ultra 12 conservative 90-percent exceedance forecast? 13 MR. PLOSS: Yes. We are required to do that under our 14 biological opinions for winter-run. 15 MR. SEXTON: It is not unusual on February 15th, in 16 that first forecast, for the Bureau of Reclamation to 17 forecast different percentages of allocation to different 18 water users; isn't that correct? 19 MR. PLOSS: That's correct. 20 MR. SEXTON: For example, it is not unusual for the 21 Bureau to say, for example, water rights and settlement 22 contractors are to receive a hundred percent of their water 23 allocation; isn't that right? 24 MR. PLOSS: That could be the case in that early 25 forecast, yes. CAPITOL REPORTERS (916) 923-5447 6920 1 MR. SEXTON: And at the same time the Bureau could and 2 oftentimes does allocate different percentages to 3 contractors north of the Delta and south of the Delta? 4 MR. PLOSS: That most likely happens because of trying 5 to meet the other obligations of the project on how we 6 forecast, in this case, meeting the Bay-Delta standards, 7 our ability to export water out of the Delta as compared to 8 our ability to deliver water in the Sacramento Valley. 9 MR. SEXTON: It is also not unusual for the Bureau to 10 allocate a percentage allocation to M&I contractors that is 11 different from its allocation to agricultural water service 12 contractors; isn't that true? 13 MR. PLOSS: That's correct. 14 MR. SEXTON: The Friant division is hydrologically 15 separated from other portions of the CVP; is that correct, 16 sir? 17 MR. PLOSS: Yes. 18 MR. SEXTON: So it is not unusual for the Bureau to 19 allocate percentage allocations to Friant Class I users 20 based on hydrologic conditions in that basin? 21 MR. PLOSS: Correct. They do a separate forecasting 22 and a separate allocation out of Friant. 23 MR. SEXTON: Again, it is not unusual for the Bureau to 24 allocate a lesser allocation, if any at all, to Friant Class 25 II water contractors, correct? CAPITOL REPORTERS (916) 923-5447 6921 1 MR. PLOSS: Correct. 2 MR. SEXTON: The CVP is generally considered to be an 3 integrated project; isn't that right, sir? 4 MR. PLOSS: That's correct. 5 MR. SEXTON: Does that apply to the New Melones 6 Project? 7 MR. PLOSS: It is limited by the authorization for New 8 Melones as well as permits for New Melones, on where the 9 water service can be made, as we talked about here the four 10 counties in the designated basin for New Melones. And so 11 the water from there is not integrated into the water 12 supplies for the balance of the Central Valley Project. 13 MR. SEXTON: There are portions of the New Melones 14 Project that are integrated with other portions of the CVP; 15 isn't that correct? 16 MR. PLOSS: New Melones Project is integrated 17 financially with the rest of the CVP, and, also, our power 18 generation is integrated. But the water supply is 19 separate. 20 MR. SEXTON: Now, the Bureau of Reclamation has 21 purchased some water from Oakdale Irrigation District in 22 recent years; isn't that correct? 23 MR. PLOSS. That's correct. 24 MR. SEXTON: For what purpose was that purchased? 25 MR. PLOSS: That was purchased under the Central Valley CAPITOL REPORTERS (916) 923-5447 6922 1 Project Improvement Act for meeting the fish and wildlife 2 restoration purposes of that act. 3 MR. SEXTON: The end result of that purpose was the 4 Bureau's ability to make additional water available to 5 Stockton East and Central under their contract, wasn't it? 6 MR. PLOSS: Correct. That allowed us to firm up the 7 fishery flows on the Stanislaus River, and then subsequently 8 allowed us to make an allocation to the CVP contractors out 9 of New Melones. 10 MR. SEXTON: The Bureau also has the ability to make 11 purchases of water for other CVPIA uses, such as level four 12 supplies, correct? 13 MR. PLOSS: Yes. We have an active program for 14 purchasing additional water for delivery to the refuges. 15 MR. SEXTON: And some of those refuges are on the west 16 side? 17 MR. PLOSS: Yes, they are. 18 MR. SEXTON: When the Bureau purchases water under its 19 obligations and authority of CVPIA for refuges on the west 20 side, does that result in an increased allocation to water 21 service contractors south of the Delta? 22 MR. PLOSS: The purchases of water for the refuges is 23 independent of the project, what is referred to under the 24 CVPIA as level four supplies cannot interfere with the 25 operation of the Central Valley Project. So it's basically CAPITOL REPORTERS (916) 923-5447 6923 1 that water or those water purchases are treated as water 2 transfers. 3 MR. SEXTON: Now, the next area I would like to discuss 4 with you just very briefly, Mr. Ploss, is the line of 5 questioning regarding the Bureau's inability to meet all of 6 its obligations from New Melones' yield. 7 Do you recall that there was some questions regarding 8 the Bureau's inability to meet water quality standards in a 9 certain number of years? Do you recall that testimony? 10 MR. PLOSS: Yes. 11 MR. SEXTON: All other things remaining equal, if a 12 drain was built from the San Joaquin Valley to convey 13 agricultural water to some unspecified location, would that 14 not make your job easier to meet water quality standards at 15 Vernalis from New Melones? 16 MR. PLOSS: Any means to solve the water quality 17 problem at Vernalis would make our job easier for operation 18 of New Melones, and a drain is certainly one of those 19 solutions. 20 MR. SEXTON: Such a drain would also free up New 21 Melones water for other beneficial uses? 22 MR. PLOSS: It certainly would. 23 MR. SEXTON: Thank you, sir. 24 C.O. CAFFREY: Thank you, Mr. Sexton. 25 Mr. Brown. CAPITOL REPORTERS (916) 923-5447 6924 1 MEMBER BROWN: Mr. Stubchaer picked up my favorite 2 word. You said "agricultural water, a drain for 3 agricultural water." If you did, you probably meant for 4 tile water? 5 MR. SEXTON: Yes, I misspoke. Thank you for that 6 clarification. The question was, what I meant to say was a 7 drain to discharge tile water, in other words, agricultural 8 drainage water. 9 MR. PLOSS: I believe I understood the question. 10 MR. SEXTON: Thank you, sir. 11 Thank you, Mr. Brown, Mr. Stubchaer. 12 C.O. CAFFREY: Thank you for the clarification, Mr. 13 Sexton. 14 Let's take our break now and then come back with Mr. 15 O'Laughlin and Ms. Cahill and see where that leaves us in 16 terms of dismissing Mr. Ploss. 17 (Break taken.) 18 C.O. CAFFREY: We are back. 19 Mr. Godwin, you have something for the good of the 20 cause. 21 MR. GODWIN: Yes. I am going to fill in for Mr. 22 O'Laughlin who had to leave earlier today. 23 C.O. CAFFREY: All right. Please do, sir. 24 ---oOo-- 25 // CAPITOL REPORTERS (916) 923-5447 6925 1 RECROSS-EXAMINATION OF LOWELL PLOSS 2 BY THE SAN JOAQUIN RIVER GROUP 3 BY MR. GODWIN 4 MR. GODWIN: Arthur Godwin for the San Joaquin River 5 Group. 6 I know we are getting tired of this exhibit, but I just 7 have a few more questions on this one. 8 Mr. Ploss, could you read the fifth bullet on this 9 exhibit. This is DOI Exhibit 4-E. 10 MR. PLOSS: The below annual water supply 11 category (0 to 1004 one acre-feet) of storage 12 plus inflow was deleted from Table 2 that was 13 used in 1997 and 1998 because it was 14 anticipated that it would not be reached 15 during those years. (Reading.) 16 MR. GODWIN: Would you sort of explain what that means, 17 please. 18 MR. PLOSS: When we were developing the Interim 19 Operation Plan for '97 and '98 through the stakeholder 20 process, it was always recognized that this critical 21 condition would not apply because we had sufficient 22 carryover storage in New Melones Reservoir, that was at 23 about 1.4 million, I believe, and any inflow into the 24 reservoir would put us into the next category. So, in the 25 development of the Interim Operation Plan, we excluded that CAPITOL REPORTERS (916) 923-5447 6926 1 lower range, and it was not a subject of discussion among 2 the stakeholders at the time. 3 In one of the other exhibits which, in fact, is the 4 Interim Operation Plan, which is Exhibit 4-D, includes a 5 table in there similar to this that does not have that lower 6 category on it. 7 MR. GODWIN: What you are saying, then, is that first 8 row, 0 to 1,400 storage plus inflow, is not part of the 9 Interim Operation Plan for New Melones? 10 MR. PLOSS: Right. It was recognized in '97 and '98 11 that that condition would not exist. 12 MR. GODWIN: The Interim Operation Plan has been 13 extended another year; is that right? 14 MR. PLOSS: That's correct. With the understanding 15 that in June of 1999 the stakeholder group will revisit the 16 Interim Operation Plan and determine whether it should be 17 extended beyond 1999. 18 MR. GODWIN: In that first category, 0 to 1,400 19 acre-feet, that is not part of the extension? 20 MR. PLOSS: It is not part of the extension, certainly 21 this year because the reservoir is still full and most 22 likely will not be part of the extension if we go into year 23 2000. 24 MR. GODWIN: Thank you. 25 That is all I have. CAPITOL REPORTERS (916) 923-5447 6927 1 C.O. CAFFREY: Thank you, Mr. Godwin. 2 Ms. Cahill. 3 ---oOo-- 4 RECROSS-EXAMINATION OF LOWELL PLOSS 5 BY THE CITY OF STOCKTON 6 BY MS. CAHILL 7 MS. CAHILL: Virginia Cahill representing the City of 8 Stockton. 9 Good afternoon, Mr. Ploss. I have just a very few 10 questions. 11 On infamous Table 2 of Exhibit 4-E which is still on 12 the screen, I remember there being a bit of uncertainty as 13 you and Ms. Harrigfeld were discussing what the Bay-Delta -- 14 what was meant by Bay-Delta requirements. And on this table 15 it reads "Bay-Delta flow requirements at Vernalis"; is that 16 right? 17 MR. PLOSS: That's correct. 18 MS. CAHILL: So that would be the springtime pulse flow 19 requirements for fish measured at Vernalis that are in the 20 Water Quality Control Plan? 21 MR. PLOSS: Correct. 22 MS. CAHILL: Is that all that is included in that 23 category? 24 MR. PLOSS: I believe that is all that is included in 25 this category. CAPITOL REPORTERS (916) 923-5447 6928 1 MS. CAHILL: When the term "Bay-Delta flow 2 requirements" is used on Exhibit 4-G, it would have the same 3 meaning there? 4 MR. PLOSS: Yes, it would. 5 MS. CAHILL: I am just trying to make things clear. 6 On 4-I, which is the 71-year summary, there is a column 7 that says B-D-R-E-L. I assume that stands for Bay-Delta 8 Releases; is that correct. 9 MR. PLOSS: Yes, it is. 10 MS. CAHILL: Would that be the same flow requirements 11 that we have just been discussing? 12 MR. PLOSS: Yes. 13 MS. CAHILL: With regard to Exhibit 4-G, which is the 14 one that is headed "General Information Table," earlier I 15 believe you testified that you thought this table would be 16 helpful information for people to have; is that correct? 17 MR. PLOSS: That's correct. 18 MS. CAHILL: So notwithstanding the limitations of the 19 modeling that underlies this table, do you believe this is 20 still useful information? 21 MR. PLOSS: I believe it is. There are many ways that 22 the results of the modeling can be portrayed through all the 23 output that is available to us through our computers. We 24 tried to summarize it here in what we thought would be the 25 most useful information to give people and understanding of CAPITOL REPORTERS (916) 923-5447 6929 1 how sensitive the operation is. 2 MS. CAHILL: Notwithstanding the limitations in the 3 modeling, it is still your opinion, is it not, that there is 4 not enough water in New Melones to meet all the demands 5 placed on it? 6 MR. PLOSS: Yes. 7 MS. CAHILL: Is it also your opinion that there is not 8 enough water in New Melones alone to fully meet the Vernalis 9 water quality standard in all years? 10 MR. PLOSS: Your question is meeting water quality 11 alone, I am not certain if all of the water from New Melones 12 was dedicated 100 percent to water quality if that would be 13 the case. I believe that even under that scenario, there 14 could be circumstances when water quality could not be met. 15 MS. CAHILL: But as a practical matter, in light of the 16 other requirements that you believe are imposed on the 17 project, you cannot meet water quality in all years? 18 MR. PLOSS: Correct. As a practical matter, the 19 projects are not operated exclusively for a single purpose. 20 MS. CAHILL: When Ms. Harrigfeld was discussing with 21 you the columns on Table 2 dealing with Bay-Delta flow 22 requirements and CVP contracts, you made some mention of the 23 timing. One of the factors that you would consider was 24 timing, when the water might be available. Mr. Minasian 25 followed up by indicating that there might be some months CAPITOL REPORTERS (916) 923-5447 6930 1 that SEWD might not take water under its agricultural 2 portion of its contract. Is that correct? 3 MR. PLOSS: Yes. 4 MS. CAHILL: Isn't it true also that the Stockton East 5 contract has a municipal and industrial component which is 6 used to serve the City of Stockton? 7 MR. PLOSS: I believe it has a component of that, yes. 8 MS. CAHILL: In that case isn't it likely that the 9 municipal and industrial water might be taken year round? 10 MR. PLOSS: That's likely. And if the delivery 11 schedules for the contractors would change, then the 12 assumptions that went in the basin modeling and into this 13 table would change. 14 MS. CAHILL: Thank you. 15 Ms. Harrigfeld also had a few questions for you with 16 regard to the CVPIA. 17 Were there any in-stream flows that have been 18 specifically imposed by Congress? 19 MR. PLOSS: No. 20 MS. CAHILL: Could you tell us what the releases were 21 made -- what releases were made from New Melones under CVPIA 22 in 1993? 23 MR. PLOSS: That is portrayed in another exhibit that 24 we have here; it's Exhibit 9-H. I believe your question was 25 with 1993? CAPITOL REPORTERS (916) 923-5447 6931 1 MS. CAHILL: Yes. 2 MR. PLOSS: The releases under CVPIA in that year, 3 131,000 acre-feet. 4 MS. CAHILL: Would those be characterized as releases 5 for fish and wildlife purposes? 6 MR. PLOSS: Yes. Those would be characterized for fish 7 and wildlife restoration, yes. 8 MS. CAHILL: In that year there were no deliveries made 9 to contractors; is that correct? 10 MR. PLOSS: That's correct. 11 MS. CAHILL: How was the amount of fish flow, the fish 12 releases, determined in 1993? 13 MR. PLOSS: The releases were made in accordance with 14 recommendations from U.S. Fish and Wildlife Service for our 15 planning of the operations, and then we did actual 16 accounting of the releases that were made from the project 17 through our actual operations. 18 MS. CAHILL: Do you know on what those recommendations 19 for Fish and Wildlife Service were based? 20 MR. PLOSS: I believe I have already testified to their 21 recommendation was based on the draft Anadromous Fish 22 Restoration Plan, the work that they were doing on the plan, 23 along with consultation with Department of Fish and Game. 24 MS. CAHILL: Was the draft anadromous fish plan done in 25 1993? CAPITOL REPORTERS (916) 923-5447 6932 1 MR. PLOSS: I don't believe it was completed that year, 2 no. It was being worked on. 3 MS. CAHILL: You're familiar, I know, with the fact 4 that the New Melones permits were granted by this Board in 5 Decision 1422; is that right? 6 MR. PLOSS: Yes. 7 MS. CAHILL: Then were the permits amended somewhat in 8 Decision 1616? 9 MR. PLOSS: I don't recall. 10 MS. CAHILL: Are you familiar at all with Decision 11 1616? 12 MR. PLOSS: I have not had an opportunity to see it. 13 MS. CAHILL: Assume hypothetically that in Decision 14 1616 the State Water Board has a condition that the 15 permittee will operate pursuant to the June 1987 agreement 16 with California Department of Fish and Game and the Bureau 17 of Reclamation, that 1987 agreement that we have been 18 talking about. If your permits require you to operate in 19 accordance with the 1987 Department of Fish and Game 20 Agreement, doesn't that limit fish releases from New Melones 21 to a maximum of 302,000 acre-feet? 22 MR. PLOSS: I don't believe so. We were further 23 directed by the United States Congress to implement the 24 provisions of the Central Valley Project Improvement Act, 25 and those are being carried out. CAPITOL REPORTERS (916) 923-5447 6933 1 MS. CAHILL: But Congress hasn't specified any 2 particular amount of the 800,000 acre-feet to come from any 3 particular reservoir, has it? 4 MR. PLOSS: No. It is to come from the yield of the 5 Central Valley Project. 6 MS. CAHILL: Arguably, not arguably, it would be 7 possible to comply with a permit condition placing a maximum 8 on fish releases from New Melones and also to provide the 9 800,000 required under CVPIA from other CVP sources? 10 MR. PLOSS: If that is the ultimate plan of 11 implementation for CVPIA, yes. 12 MS. CAHILL: Thank you. 13 C.O. CAFFREY: Thank you, Ms. Cahill. 14 Questions from staff, recross? 15 MR. HOWARD: I have one. 16 Mr. Howard, sir. 17 ---oOo-- 18 RECROSS-EXAMINATION OF LOWELL PLOSS 19 BY STAFF 20 MR. HOWARD: This relates again to Table 2. You 21 testified under cross-examination from Mr. Herrick that you 22 believed the fishery releases under the interim Stanislaus 23 plan were similar to the AFRP flows; is that correct? 24 MR. PLOSS: Yes. 25 MR. HOWARD: I have a copy of the draft AFRP. It is CAPITOL REPORTERS (916) 923-5447 6934 1 South Delta Water Agency Exhibit 37, Page 90 of the 2 exhibit. If you look at the table that is on Page 90, the 3 third row from the bottom of that table. It will give the 4 total releases recommended under AFRP for fishery purposes. 5 And those fish releases range from 247,000 acre-feet in 6 critically dry years to 468,000 acre-feet in wet years. The 7 Interim Stanislaus Operation Plan, as on Table 2, ranges 8 from 0 to 467 or maybe 98 to 467,000, depending on how one 9 determines that first row. 10 Therefore, do you agree that the interim plan calls for 11 substantially higher flows than the AFRP in drier years? 12 MR. PLOSS: There is a difference in how the flows are 13 based. And in the draft AFRP, the flows are based on the 14 water year-type classifications from wet to critical. 15 Working with Fish and Wildlife Service, we attempted to 16 develop a schedule for New Melones that is based upon 17 storage that would exist at the end of February plus the 18 projected inflow March through September. 19 So the budget that we show on Table 2 does vary 20 slightly from this and is also on a sliding scale between 21 the steps. So it does vary slightly. I believe, without 22 looking at the reoccurrences of the year types, that the 23 draft Anadromous Fish Restoration Plan may call for more 24 water in the below normal and dry years, yes. 25 MR. HOWARD: Thank you. CAPITOL REPORTERS (916) 923-5447 6935 1 C.O. CAFFREY: Thank you, Mr. Howard. 2 Any other questions from staff? 3 Anything from the Board Members? 4 Thank you. 5 Let me ask Ms. Harrigfeld, do you have more witnesses? 6 MS. HARRIGFELD: Yes. Ed Steffani is here. 7 C.O. CAFFREY: That is what I thought might be the 8 case. Mr. Steffani has patiently waited. 9 MS. HARRIGFELD: Do you want to accept the 10 cross-examination exhibits? 11 C.O. CAFFREY: I guess that would be the next order of 12 business since we have been doing those witness by witness 13 because of adversarial situations. 14 So, thank you for that reminder, Ms. Harrigfeld. I 15 believe we had cross-examination exhibits from Mr. Minasian 16 and Mr. Nomellini; is that correct? 17 MR. MINASIAN: Yes. Mr. Ploss could not identify my 18 exhibit. I will have to do it through some other witness. 19 C.O. CAFFREY: You are withdrawing it at this time? 20 MR. MINASIAN: Just leave it on the record. 21 C.O. CAFFREY: Leave it on the record, Mr. Minasian, 22 and we will take up the question of acceptance when it is 23 appropriate for you to make. 24 Thank you, sir. 25 Mr. Nomellini, did you wish to offer your exhibit? CAPITOL REPORTERS (916) 923-5447 6936 1 MR. NOMELLINI: Yes. I would like to offer Central 2 Delta Water Agency 23. 3 C.O. CAFFREY: Is there any objection to the acceptance 4 of Mr. Nomellini's Exhibit Number 23? 5 Hearing and seeing no objection, it is accepted into 6 the record. 7 Thank you, sir. 8 MR. GALLERY: Mr. Chairman. 9 C.O. CAFFREY: Mr. Gallery. 10 MR. GALLERY: I referred to four exhibits during my 11 cross-examination which I would like to offer into 12 evidence. I referred to them as TUD Exhibits 5 and 6 and 13 TUD Exhibits 9 and 10. 14 C.O. CAFFREY: Thank you, sir. Thank you for bringing 15 that to my attention. Somehow I overlooked that. I assume 16 you were citing things that were already in the record. 17 That is obviously not the case. 18 Is there any objection to the acceptance of Mr. 19 Gallery's exhibits as he has identified them? 20 Hearing and seeing no objection, they are accepted into 21 the record, Mr. Gallery. 22 Mr. Sexton. 23 MR. SEXTON: Yes, Mr. Chairman. Mr. Birmingham had to 24 be in Fresno today. On his behalf, on behalf of Westlands, 25 I'd like to offer Government Exhibits 4-A through 4-I, which CAPITOL REPORTERS (916) 923-5447 6937 1 were discussed in Mr. Birmingham's examination of Mr. 2 Ploss. 3 C.O. CAFFREY: All right, sir. 4 Let me ask Ms. Whitney if all this is synchronizing for 5 you, Ms. Whitney? 6 MS. WHITNEY: So far. 7 C.O. CAFFREY: Is there any objection to accepting Mr. 8 Birmingham's exhibits as explained and described by Mr. 9 Sexton? 10 Hearing and seeing no objection, those exhibits, as 11 well, are accepted into the record. 12 Thank you, Mr. Sexton. 13 Are there any other that I may have overlooked? 14 Mr. Nomellini. 15 MR. NOMELLINI: I mailed mine out. Proof of service 16 should be filed. Since I have not mailed it out previously, 17 I understood that criteria that normally applied, then 18 acceptance is accepted to the mailing. I think that ought 19 to apply to all exhibits to make sure they do go out. 20 MS. WHITNEY: I believe they have already gone out with 21 the exception of Mr. Nomellini's. All the rest of them have 22 been presubmitted. 23 MS. LEIDIGH: All presubmitted. 24 C.O. CAFFREY: You have mailed yours, Mr. Nomellini? 25 MR. NOMELLINI: Yes. CAPITOL REPORTERS (916) 923-5447 6938 1 C.O. CAFFREY: Thank you, sir. 2 Does that complete the cross-examination of exhibits? 3 Thanks. 4 Ms. Harrigfeld, you need a little time, or -- 5 MS. HARRIGFELD: No. 6 C.O. CAFFREY: Do you want to start right now? 7 MS. HARRIGFELD: Yes. 8 C.O. CAFFREY: Please bring your witness forward. 9 Good afternoon, Mr. Steffani. 10 (Oath Administered by C.O. Caffrey.) 11 ---oOo-- 12 DIRECT EXAMINATION OF EDWARD STEFFANI 13 BY STOCKTON EAST WATER DISTRICT 14 BY MS. HARRIGFELD 15 MS. HARRIGFELD: Mr. Steffani, would you state your 16 full name for the record, please. 17 MR. STEFFANI: Edward Mervyn Steffani. 18 MS. HARRIGFELD: Stockton East Water District Exhibit 19 Number 5 is a statement of your qualifications. Is this a 20 true and correct copy of your qualifications? 21 MR. STEFFANI: Yes, it is. 22 MS. HARRIGFELD: Stockton East Water Exhibit Number 27 23 is a copy of your testimony. Is this a true and correct 24 copy of your testimony? 25 MR. STEFFANI: Yes. CAPITOL REPORTERS (916) 923-5447 6939 1 MS. HARRIGFELD: Could you please summarize for the 2 Board your testimony. 3 C.O. CAFFREY: Before you do that, excuse me for 4 interrupting you, Mr. Steffani and Ms. Harrigfeld. I don't 5 know if Ms. Harrigfeld has had the opportunity to tell you, 6 but we have a 20-minute limit on direct testimony for 7 non-adversarial witnesses; as Ms. Harrigfeld reminded me a 8 moment ago, you were not adversarial. We adhere to that 9 stringently because this is a summary of your testimony that 10 has already been submitted. 11 MR. STEFFANI: I understand. I am going to try to beat 12 the 20 minutes. 13 C.O. CAFFREY: When you get down to about the three 14 minutes, if you are still going, we will let you know. 15 Thank you, Mr. Steffani. 16 MR. STEFFANI: You're welcome. 17 By now all of you must know about our critically 18 overdrafted groundwater basin. I don't need to go into a 19 lot of detail about that. Eastern San Joaquin County needs 20 about 200- to 250,000 acre-feet annually of supplemental 21 water to correct the overdraft and to stop the saline 22 intrusion. 23 We have, as you know and have discussed today, a 24 contract with the Bureau for water from New Melones. We 25 entered into that contract in December of 1983. When I say CAPITOL REPORTERS (916) 923-5447 6940 1 "we," Stockton East Water District for 75,000 acre-feet 2 annually; and our neighbor, Central San Joaquin Water 3 Conversation District, for 80, for a total of 155. Of that 4 155, 106,000 acre-feet annually is called interim water. 5 And I'll go into that in a little more detail in a minute. 6 49,000 acre-feet was firm water. 7 The 49,000 acre-feet firm went to Central San Joaquin 8 because they were closer to the Stanislaus. So 49 firm with 9 Central and 31 interim, 75,000 acre-feet interim for 10 Stockton East. 11 What do we mean about interim? When the Secretary of 12 the Interior adopted the, quote, New Melones Basin -- by the 13 way, it is not a hydrologic basin; it is a political basin 14 -- Stockton East and Central weren't included. We tried to 15 get included, but we are not. We are outside of the, quote, 16 New Melones Basin. 17 In the studies that the Bureau did in the '80s the 18 Bureau concluded that the basin, the in-basin area of the 19 four counties that you've heard about, Calaveras, Tuolumne, 20 Stanislaus and a piece of San Joaquin, that those areas 21 within the basin would not need water for a number of 22 years. The Bureau did land classification studies to 23 determine how much Class I soil area there was in this area, 24 how much Class II and so on, and developed an estimate of 25 what the ultimate water needs would be in the basin. CAPITOL REPORTERS (916) 923-5447 6941 1 And the Bureau determined that by the year 2020 there 2 would be a need for a 131,000 acre-feet within the basin. 3 The Bureau also determined that by the year 2020 the firm 4 yield of New Melones would be 180,000 acre-feet. The 5 difference between the 131 and 180 is the 49,000 that went 6 to Central. So the Bureau projected that by the year 2020 7 the yield would be 180, the in-basin need would be 131. 8 The same projections estimated or concluded, really, 9 that the yield of New Melones in 1980 -- 1990 before any 10 development upstream of New Melones would be 230,000 11 acre-feet annually. So the Bureau was saying until there is 12 development above and within the basin there will be 230,000 13 acre-feet of yield reducing to 180 maybe by the year 2020. 14 It was that water that was not then used within the 15 basin that the Bureau determined should be used 16 somewhere, and the Bureau found that Stockton East and 17 Central, lying over the critically overdrafted basin, had a 18 need for the water. And, in fact, it was this need that the 19 Bureau used when it approached the State Board in 1983 for 20 its permit to fill New Melones. The Bureau argued that we 21 have to fill New Melones because we have to supply Stockton 22 East and Central because they are sitting over this 23 critically overdrafted basin that has saline intrusion. The 24 Bureau argued that Stockton East and Central had no other 25 source of water to correct this overdraft. CAPITOL REPORTERS (916) 923-5447 6942 1 We had been waiting, the Bureau said, Stockton East and 2 Central had been waiting for Folsom water. Stockton East 3 and Central are to eventually to be supplied from the 4 American River via Folsom South Canal. As you well know 5 about that, back in the '70s the American River water got 6 tied up and the extension of the Folsom South Canal got tied 7 up because of the litigation involving East Bay MUD. 8 So the whole world knew that we were in serious 9 trouble. We couldn't get water from the American 10 River. There was this temporary supply from the Stanislaus 11 River available until the basin needed it. And I think you 12 have seen this. I am presuming this has been introduced as 13 an exhibit. 14 C.O. CAFFREY: We need you to refer to it in full 15 description so that the people reading the record at a later 16 date will know to what you are referring, Mr. Steffani. 17 MR. STEFFANI: This is the Bureau of Reclamation 18 September 1980 New Melones Unit Stanislaus River Basin 19 Alternatives and Water Allocation Special Report. 20 MS. HARRIGFELD: Which is Tuolumne Utility District 21 Number 9. 22 C.O. CAFFREY: Thank you, Ms. Harrigfeld. 23 I assume that is what you are going to tell us, Mr. 24 Gallery. Thank you, sir. It is in the record. Thank you, 25 sir. CAPITOL REPORTERS (916) 923-5447 6943 1 MR. STEFFANI: That is where all the numbers came from 2 that I quoted a few moments ago. 3 C.O. CAFFREY: Thank you, sir. 4 MR. STEFFANI: Again, this business about interim 5 water, it being available for us until it is taken by the 6 people within the basin, if and when that begins to happen, 7 the Bureau is required by a section of our contract to 8 notify us and say that a thousand acres are developed within 9 the basin, that there is going to be 2- to 3,000 acre-feet 10 less next year for you. The Bureau has never done that. 11 We see ourselves as standing in for the basin, the 12 basin people. The areas within the basin have been looking 13 at New Melones as their ultimate supply. We know that, and 14 we are simply using it on a temporary basis. So if we are 15 denied that water for fish releases and water quality, I 16 guess that means that the basin area is also denied that 17 water. 18 We have been the brunt of a lot of accusations, "You 19 dummies, why did you go and spend $65,000,000 building a 20 project that didn't bring you any water?" Well, let me give 21 a little history on that. 22 Again, in 1983 we signed a contract with the Bureau 23 after the Bureau had gotten its permit from you that limited 24 fish releases to 98,300 acre-feet. The contract required us 25 to build a conveyance system within five years after the CAPITOL REPORTERS (916) 923-5447 6944 1 Bureau had given us notice that that water was available. 2 The Bureau gave us that notice effective January 1st of 3 1989. So in five years, by January 1st of 1994, to build a 4 conveyance system or we would void the contract. 5 Remember that in 1989 was three years after you had 6 issued a permit, Decision 1616, which gave the Bureau direct 7 diversion rights on the Stanislaus River; and that decision 8 changed the fish release number from 98 3 to the 302,000 you 9 heard about today. So in '87 the whole world knew that the 10 fish release was going to be 302. January '89, the Bureau 11 told us the water would be available, and we sold bonds in 12 1990, spent 65,000,000 to build the project. 13 C.O. CAFFREY: Excuse me, Mr. Steffani. 14 Mr. Brandt, you rise, sir? 15 MR. BRANDT: I am not sure what to do here. I am sort 16 of in a position of Mr. Birmingham, just that I -- so that 17 we are consistent. The testimony he is now giving is way 18 beyond the scope of his written testimony. And while I am 19 not at this time expressing an objection, I just want to -- 20 I don't know what to do here. This may be something that is 21 more appropriate in cross-examination or something else as 22 we were required with Ms. Goude to strike all that 23 testimony. So I don't know what to do here. Some ways this 24 stuff is coming in in any case through other witnesses. But 25 I will leave it to you. Just an observation. I am not sure CAPITOL REPORTERS (916) 923-5447 6945 1 whether I want to object because it is testimony that is -- 2 MR. STEFFANI: You better not. 3 C.O. CAFFREY: Well, the witness is required to keep 4 the summation or summary of his testimony within what has 5 been submitted and -- 6 Ms. Forster. 7 MEMBER FORSTER: I -- 8 C.O. CAFFREY: Mr. Stubchaer has a question. I am 9 sorry, Ms. Forster, do you have a question? 10 MEMBER FORSTER: Maybe he should ask his first. 11 C.O. CAFFREY: Mr. Stubchaer and then Ms. Forster. 12 C.O. STUBCHAER: I don't have the Stockton East exhibit 13 in front of me when you started Mr. Steffani, so are you -- 14 is your direct testimony Stockton East Water District 15 Exhibit Number 27? 16 MR. STEFFANI: Yes. 17 C.O. STUBCHAER: One page and a half? 18 MR. STEFFANI: Yes. 19 C.O. STUBCHAER: That is it? 20 MR. STEFFANI: Yes. 21 MS. HARRIGFELD: You know, it refers to a number of -- 22 it was very -- if you take a look at his testimony, it 23 refers to the 1980 Basin Plan, their Record of Decision. 24 Mr. Steffani was trying to address one of the questions that 25 Mr. Brown had asked in the previous, I guess it was, cross. CAPITOL REPORTERS (916) 923-5447 6946 1 He had heard that and he wanted to kind of highlight the 2 fact of why it is that -- 3 C.O. CAFFREY: Ms. Forster, go ahead. 4 MR. BRANDT: May I suggest we might be able to do it 5 this way: Why don't we make sure he stops at this point and 6 just keeps to his testimony. We will make sure that he has 7 an opportunity to answer these questions. 8 MS. HARRIGFELD: Fortunately, he had the benefit of 9 sitting through today's hearing. 10 C.O. CAFFREY: The conclusion that I was coming to, and 11 I don't mean to step on statements of the Board Members, the 12 conclusion that I was coming to was that he should not be 13 responding in his direct testimony to questions that 14 Mr. Brown had asked, but he can be asked those questions 15 again. And I am sure he will be. And that would be an 16 appropriate way to get that into his -- the totality of his 17 remarks on the record. I am sorry, that was a technical 18 statement. 19 Go ahead, Ms. Forster. 20 MEMBER FORSTER: My comment was just going to be, it 21 seems to me over the past few days, we had -- everything 22 hasn't been relevant, and we have been pretty broad. And I 23 know that Mr. Steffani wants to tell his story and so -- but 24 I think you found a way for him to tell his story through 25 the questioning. So, I know -- I am happy. I wanted him to CAPITOL REPORTERS (916) 923-5447 6947 1 be able to tell his story, if you were going to clamp him 2 down, but if you can do it through questioning -- 3 C.O. CAFFREY: I want to make this technical point. It 4 is an important due process question. The question of 5 relevancy is one that we refer to as more -- goes more to 6 the question of cross-examination. This is direct 7 testimony, and we have been very strict about direct 8 testimony staying within the definition of direct. In fact, 9 we struck Ms. Goude's testimony from the record and made her 10 come back and make another run at it. 11 I appreciate what Ms. Forster is saying, and that it is 12 correct that she can get or any one of us can get what we 13 want from Mr. Steffani in the record by asking him 14 questions. So, that is what we will do. 15 So, perhaps at this point would it be appropriate for 16 Mr. Steffani just to read his statement into the record? We 17 can get to questions. Or do you want to summarize? How do 18 you want to do this, Ms. Harrigfeld? 19 MS. HARRIGFELD: Well, he's principally covered the 20 first page. There are a couple points on the second page 21 that you can hit on. We will -- 22 MR. STEFFANI: Is that all right? 23 C.O. CAFFREY: Sure. Go right ahead, Mr. Steffani. 24 MR. STEFFANI: First, I would like to apologize. 25 C.O. CAFFREY: No need to apologize, none whatsoever. CAPITOL REPORTERS (916) 923-5447 6948 1 MR. STEFFANI: It is not often I get to tell this 2 story. 3 C.O. CAFFREY: I know it is heartfelt. I'll probably 4 depart from the usual procedure and go to Board Members' 5 questions first, so that you can tell your story. 6 Mr. Godwin. 7 MR. GODWIN: For the record, though, what are we going 8 to do with Mr. Brandt's objection to strike portions of Mr. 9 Steffani's testimony? 10 C.O. CAFFREY: He didn't object. He said he was 11 raising the question for the record, but he was stopping 12 short of making an objection. 13 MR. BRANDT: As long as we stop here and do whatever is 14 left on the second page, we will go on from there. 15 MR. GODWIN: I am happy, too. 16 C.O. CAFFREY: Thank you for attempting to keep us 17 honest at all times. 18 Go ahead, Mr. Steffani. 19 MR. STEFFANI: The last two points, we asked for -- we 20 built the system, and we asked for water in '93. We told 21 the Bureau we were ready. The Bureau said, "Oops. We don't 22 have any water because of the CVPIA." 23 On the Interim Operations Plan, 0 to 90,000 acre-feet, 24 you have some feeling for now that you know what our 25 contract amounts are, total 155 what 0 to 90 means. CAPITOL REPORTERS (916) 923-5447 6949 1 The 90,000 acre-feet was a number that we suggested to 2 the Bureau for the two years, '97 and '98, because we didn't 3 think we would be able to use more than 90,000. As it's 4 turned out, we have used about 50,000 acre-feet annually for 5 each of the last two years. The reason we can't use or 6 haven't been able to use more than that 50 is that the ag 7 community won't commit to the use of surface water when they 8 don't know if it is going to be there next year. It is 9 uncertain supply. 10 In our area where people have been pumping groundwater, 11 it means building an entire new system, surface water 12 system. And until we have some certainty that the water is 13 going to be for five years in a row or six years in a row, 14 we are not going to be able to get people to use more 15 water. A 12-year operating agreement, I think, will be 16 enough to get these people to use the water. So the 90,000 17 acre-feet, I believe, is too low for 12 years. It's okay 18 for today, probably okay for next year. But it is not high 19 enough over the 12-year period. And, of course, it is only 20 there in the very wet years. We would rather see something 21 on the low side, other than a zero. 22 I think I better end there. 23 C.O. CAFFREY: Thank you, sir. 24 Let me go to the Board Members first, because there is 25 interest in seeing if there was anything else that the Board CAPITOL REPORTERS (916) 923-5447 6950 1 Members wanted to ask you, and then we can also allow in the 2 cross-examining questions of what the scope of what we may 3 have asked you. I was going to go to Ms. Forster and then 4 Mr. Brown. 5 And do you have some questions, Ms. Forster, of Mr. 6 Steffani? 7 ---oOo-- 8 CROSS-EXAMINATION OF EDWARD STEFFANI 9 BY BOARD MEMBERS 10 MEMBER FORSTER: I didn't hear the last couple of 11 things you said. 12 C.O. CAFFREY: That is my fault. 13 MEMBER FORSTER: He is asking me to ask pointed 14 questions. So, do you think you can summarize again the 15 last paragraph that you -- the comments that you made? 16 MR. STEFFANI: Very quickly. We completed the system 17 in '93. We built a conveyance system. We told the Bureau 18 we were ready for water. 19 The Bureau responded, "No water available because of 20 the CVPIA." So we had just spent the five years and 21 65,000,000 building a system, and then we are told that we 22 couldn't have any water. 23 The other point was the 90,000 acre-feet, up to 90,000 24 acre-feet, that would be provided under the Interim 25 Operating Plan is not high enough and the dry year, the CAPITOL REPORTERS (916) 923-5447 6951 1 zero, the low end, is too low. We need something during the 2 drier years and we need a higher number in the wet years if 3 we are going to agree to a 12-year operating. 4 MEMBER FORSTER: So, my question is more a general 5 question. Everybody puts their hats on, engineers or 6 lawyers. Well, I am a generalist in the crowd. I am a 7 public member, and to me this is all a big story. That is 8 how I listen to it to see what has happened here and why 9 when something is built did the scenario change and what 10 came in. So, I am looking at it in a little bit different 11 way. 12 And I think that your story is a very interesting one, 13 and I don't want to get this too broad. Is there anything 14 else that you wanted to say? I can't ask you a pointed 15 question because it is not my story. It is your story. But 16 I am interested. Is there any point that you would like on 17 the record that helps with this, that isn't technical or 18 isn't legal, that you feel as a citizen and party that you 19 would like to relay to us? 20 MR. STEFFANI: Oh, yeah. 21 MEMBER FORSTER: It has to try to be -- I know. It has 22 to try to be related to maybe -- maybe the Chairman will 23 help. I just want to make sure that you're satisfied that 24 the facts, as you know them and you want them on the record, 25 are available. CAPITOL REPORTERS (916) 923-5447 6952 1 C.O. CAFFREY: Let me make a suggestion. Mr. Steffani, 2 would you like to make a policy statement before the Board 3 rather than calling it direct testimony? 4 MS. HARRIGFELD: No. Are policy statements treated the 5 same as evidence? He is an expert witness on the 6 Stanislaus. 7 C.O. CAFFREY: I am concerned that the -- with great 8 respect to Ms. Forster, I understand what she is trying to 9 say, but the instruction that you have just been given is so 10 general, I am not sure. 11 MEMBER FORSTER: Mr. Brown will help me. 12 MEMBER BROWN: Mr. Chairman. 13 C.O. CAFFREY: Off the record for a moment. 14 (Discussion held off the record.) 15 C.O. CAFFREY: We are back on the record. 16 Mr. Brown, did you wish to ask some questions? 17 MEMBER BROWN: Thank you, Mr. Chairman. 18 Perhaps after we ask a few of these, Ms. Forster will 19 have some follow-up on what we might miss, the engineers on 20 the Board, anyway. 21 Thank you, Ms. Forster. 22 Mr. Steffani, the 200,000 acre-feet of overdraft, where 23 does that figure come from? 24 MR. STEFFANI: Most recently the American River water 25 needs a study done by the Bureau of Reclamation. That is CAPITOL REPORTERS (916) 923-5447 6953 1 the 1996 study, I believe. Before that there was the Brown 2 and Caldwell study in 1985. And before that there was the 3 DWR -- DWR has published two or three bulletins on this 4 subject. The most recent one, I believe, was 1967. 5 MEMBER BROWN: In your mind is 200,000 acre-feet annual 6 average long-term overdraft a pretty good figure? 7 MR. STEFFANI: Yes. 8 MEMBER BROWN: What is happening to the groundwater 9 basin in the way of pumping water level or standing water 10 level, let's say? 11 MR. STEFFANI: It is going down. 12 MEMBER BROWN: About how much in a year? 13 MR. STEFFANI: Between a foot and a half and two feet a 14 year. 15 MEMBER BROWN: What is happening to the water 16 quality? 17 MR. STEFFANI: The water quality in the southwestern 18 part of the district is degrading, high TDS. 19 MEMBER BROWN: What is it running? 20 MR. STEFFANI: 1,500. 21 MEMBER BROWN: 1,500? 22 MR. STEFFANI: Yes. 23 MEMBER BROWN: Did you give me the standing water 24 level? 25 MR. STEFFANI: It varies. Under the urban area next to CAPITOL REPORTERS (916) 923-5447 6954 1 the Delta, groundwater levels are probably minus 30, and 2 Stockton is about plus 20, 50 feet deep, in the western part 3 of the district. In the eastern part we are 180 to 200 feet 4 deep. 5 MEMBER BROWN: On the eastern part 200 deep? 6 MR. STEFFANI: Yes. 7 MEMBER BROWN: And the pumping water level with a good 8 well might pull it down to what? 9 MR. STEFFANI: It will add another 30 feet or so. 10 MEMBER BROWN: It is good yield within that area? 11 MR. STEFFANI: It is good yield, yes. 12 MEMBER BROWN: Are there areas out there that you have 13 worked with that you are familiar that's capable of 14 recharge? 15 MR. STEFFANI: Yes. And you just mentioned the magic 16 word. Well, yes. We have. We have been doing a lot of 17 testing. We are finding some good areas, at least a foot a 18 day. We may have found some areas where the recharge rate 19 may exceed five feet a day. We are very excited about 20 that. 21 MEMBER BROWN: Have you in your travels in working with 22 other groups and entities presented the concern about a 23 degrading groundwater basin and the difficulty of recovering 24 a basin that has been degraded? 25 MR. STEFFANI: Yes, yes. CAPITOL REPORTERS (916) 923-5447 6955 1 MEMBER BROWN: Have you done that with the Bureau of 2 Reclamation? 3 MR. STEFFANI: Yes. 4 MEMBER BROWN: With the Fish and Game and Fish and 5 Wildlife? 6 MR. STEFFANI: Fish and Wildlife, we have discussed 7 this at the Stanislaus stakeholders meeting. Of course, 8 Fish and Wildlife and Fish and Game are there. 9 MEMBER BROWN: Are there concerns about the groundwater 10 basin and what it takes to recover a basin that has gone 11 sour? 12 MR. STEFFANI: Yes. 13 MEMBER BROWN: Is there any plans that is being 14 discussed to address that issue? 15 MR. STEFFANI: Yes, there are. As I said, we have been 16 doing some testing. We are just about to begin a joint 17 effort with the Corps of Engineers to look at a recharge 18 operation involving wet year water that we would bring from 19 the Stanislaus plus water from the Farmington Dam 20 watershed. This is a $1,000,000 study that will take two 21 years. We are paying half the cost. 22 We are also talking to Cal Fed. We are the Cal Fed 23 radar screen for massive groundwater recharge using wet year 24 water, not only from the Stanislaus and Farmington, but also 25 Calaveras, Mokelumne and American Rivers. CAPITOL REPORTERS (916) 923-5447 6956 1 MEMBER BROWN: Is that working with East Bay MUD? 2 MR. STEFFANI: And East Bay MUD is involved. I should 3 tell you that the overdrafted groundwater basin has a 4 capacity of about 3,000,000 acre-feet. So we have an 5 underground reservoir that is sitting there waiting for 6 somebody to put some water in. Our only problem is money. 7 We have already spent $65,000,000 for the New Melones 8 conveyance system, and I don't have enough guts to stand up 9 in front of the people in Stockton and ask for some more 10 money to build a recharge project. 11 We are going to have to get some help. That is one of 12 the reasons why we are doing this joint effort with the 13 Corps. 14 MEMBER BROWN: Did I understand you right that the 15 decision was made to go ahead and build the canal from 16 Goodwin Reservoir, and that was made to solidify your 17 contract with the Bureau? 18 MR. STEFFANI: Yes. 19 MEMBER BROWN: Then the CVPIA came in after that 20 decision and preempted the contract water? 21 MR. STEFFANI: That is what the Bureau is claiming, 22 yes. So, remember the timing. The Bureau tells us January 23 1st, '89, "You have five years to build." That puts us to 24 January '94. In the meantime, the CVPIA is enacted in late 25 '92. Isn't it? CAPITOL REPORTERS (916) 923-5447 6957 1 MEMBER BROWN: Was Central a part of that? 2 MR. STEFFANI: Central -- we built the conveyance 3 system. We have a wheeling contract with Central. Central 4 is on the hook for part of the cost. But we recover that 5 money by wheeling their water through our system. 6 Does that help? Mr. Stubchaer, do you have something? 7 C.O. STUBCHAER: No. 8 MEMBER BROWN: Is there -- 9 MR. STEFFANI: There is something -- 10 MEMBER BROWN: What is your plan now? 11 MR. STEFFANI: Well, our plan is to continue to work 12 with the Bureau on a long-term operating plan for New 13 Melones that would give us some water and to also pursue 14 massive recharge projects using wet year water, water like 15 this year. This is a great example. 16 The Bureau has talked about how this operating plan is 17 based on storage plus projected inflow. This is a good 18 idea, except that you always end up with -- there is always 19 more chance that you will spill because you are maximizing 20 end-year storage. 21 This is a good example this year, where the Bureau 22 still has too much water in New Melones. And we are 23 actually conveying some of that water through our system and 24 Oakdale and South San Joaquin are taking New Melones water 25 now, just to convey it through to get it into the Delta so CAPITOL REPORTERS (916) 923-5447 6958 1 that the flows in the Stanislaus aren't too high for the 2 spawning. That water that is now being wasted, we could be 3 recharging. 4 You get me going on recharge -- this is the answer. 5 This is the answer to practically everybody's problem. If 6 we could find good ways to recharge wet year water, then 7 you're taking your dry year supply out of the ground and 8 leaving the natural flow in the streams where it should be 9 in dry years. But we can't do it alone; we need help. 10 MEMBER BROWN: That is all I have, Mr. Chairman. 11 C.O. CAFFREY: Thank you, Mr. Brown. 12 We are off the record for just a moment here. 13 Thank you. 14 (Discussion held off the record.) 15 C.O. CAFFREY: We are back on the record. 16 Thank you, Mr. Brown. 17 Any other questions from the Board Members? 18 Let's have, by a showing of hands, how many of the 19 representatives of the parties wish to cross-examine this 20 witness. 21 We have Mr. Minasian, Mr. Brandt. 22 You can put your hands down as I call. 23 Mr. Godwin, Mr. Gallery, Mr. Nomellini, Ms. Cahill, Mr. 24 Shephard. 25 I am sorry, Mr. Sexton. I didn't see you. CAPITOL REPORTERS (916) 923-5447 6959 1 MR. SEXTON: Mr. Chairman, I don't believe I want to 2 question this witness, but I do believe Mr. Birmingham 3 expressed a desire earlier to question him. So, I would 4 like to sign Mr. Birmingham up. 5 C.O. CAFFREY: All right. Mr. Birmingham. 6 You do not wish -- you said you did not wish to? 7 MR. SEXTON: I don't think so. 8 C.O. CAFFREY: Let me read the names that I have taken 9 down: Minasian, Brandt, Godwin, Gallery, Nomellini, Cahill, 10 Shephard, Birmingham. 11 Have I left anybody out? 12 We only have about 20 minutes left for today, so, 13 obviously, we will have to call Mr. Steffani back. We will 14 be back in December. But let's start with Ms. Cahill and 15 try to get in 20 minutes, anyway. 16 Does that work for you, Ms. Cahill? We certainly are 17 not going to limit you to 20 minutes. If you need more -- 18 MS. CAHILL: Going first, I don't have many questions. 19 MR. STEFFANI: You just rattled a list of all my 20 friends. Be nice to me, Virginia. 21 ---oOo-- 22 CROSS-EXAMINATION OF EDWARD STEFFANI 23 BY THE CITY OF STOCKTON 24 BY MS. CAHILL 25 MS. CAHILL: Mr. Steffani, in the two years that the CAPITOL REPORTERS (916) 923-5447 6960 1 Interim Operation Plan was in effect, did Stockton East 2 receive some water in each of those two years? 3 MR. STEFFANI: Yes. 4 MS. CAHILL: Approximately how much? 5 MR. STEFFANI: About 25,000 acre-feet each year. 6 MS. CAHILL: What did Central receive in those years? 7 MR. STEFFANI: About the same. 8 MS. CAHILL: In those years how did Stockton East use 9 the water that it took under the contract? 10 MR. STEFFANI: Most of it, particularly all of it, was 11 used for the urban area. It went through the treatment 12 plant for M&I use. 13 MS. CAHILL: Let's say in the past 10 to 15 years, is 14 it true that the Stockton urban area has gone from being 15 almost entirely reliant on groundwater to using at least 50 16 percent of its water from surface water sources? 17 MR. STEFFANI: Yes. It's actually more than 50 18 percent. The urban demand is now about 62,000 acre-feet 19 annually. For the last two years we have supplied 40,000 20 acre-feet of the 62. 21 MS. CAHILL: Isn't it true that the groundwater levels 22 are somewhat better now under the city? 23 MR. STEFFANI: Yes. 24 MS. CAHILL: But that there is still a problem because 25 of the gradient due to the continued overdrafting in the CAPITOL REPORTERS (916) 923-5447 6961 1 agricultural areas? 2 MR. STEFFANI: Yes. The hole in the basin is under the 3 ag area east of the city. 4 MS. CAHILL: If Stockton East were to get its whole 5 contract amount from the Bureau of Reclamation, that entire 6 amount, assuming you had the facilities, could be used to 7 counter the overdraft, to help counter it. Is that right? 8 MR. STEFFANI: Yes. 9 MS. CAHILL: I think that is it. 10 Thank you. 11 C.O. CAFFREY: Thank you, Ms. Cahill. 12 Did any of the cross-examiners that raised their hand 13 feel that they can complete in 15 minutes or less, so we can 14 -- Mr. Gallery. 15 Mr. Gallery, let's go with you, sir. 16 ---oOo-- 17 CROSS-EXAMINATION OF EDWARD STEFFANI 18 BY TUOLUMNE UTILITIES DISTRICT 19 BY MR. GALLERY 20 MR. GALLERY: Mr. Steffani, in your testimony you state 21 that your contract defines the basin as the Stanislaus River 22 Basin area for which a reservation of water was required by 23 the Flood Control Act of 1962 and was defined in the special 24 report entitled "New Melones Unit Central Valley Project," 25 and you held up the green-covered report? CAPITOL REPORTERS (916) 923-5447 6962 1 MR. STEFFANI: Yes. 2 MR. GALLERY: Which we have identified as in evidence 3 as Tuolumne Utilities District Number 2. 4 Do you have a copy with you? 5 MR. STEFFANI: Yes, I do. 6 MR. GALLERY: Could I ask you to turn to Plate 7 in the 7 report. In that Plate 7, Mr. Steffani -- 8 MS. LEIDIGH: Mr. Gallery, Ms. Whitney informs me this 9 is Exhibit 9, not 2. 10 MR. GALLERY: Yes. Actually the green-covered report, 11 the 1980 special report, is Exhibit 9. And we have also put 12 Plate 7 in as TUD Exhibit 10. On the overhead is TUD 13 Exhibit 10, but the green-covered report which contains it 14 is TUD Exhibit 9. 15 Could you turn to the Plate 7 in that, and can you 16 identify on the overhead that that is the plate that defines 17 the basin, the Stanislaus River Basin? 18 MR. STEFFANI: Yes, I can. 19 MR. GALLERY: That basin was officially adopted by the 20 Secretary of the Interior; is that right, Mr. Steffani? 21 MR. STEFFANI: Yes. 22 MR. GALLERY: I am handing you a copy of San Joaquin 23 Exhibit Number 19, which is a 1981 conclusion of the 24 Secretary of the Interior. 25 Is that the document which officially adopted Basin 2? CAPITOL REPORTERS (916) 923-5447 6963 1 MR. STEFFANI: Yes. 2 MR. GALLERY: I think Ms. Leidigh had a question in her 3 examination as to what was the official government document 4 which implemented the statute in determining the basin. And 5 that document that you have before you, San Joaquin County 6 Exhibit 19, is the document; is that correct? 7 MR. STEFFANI: That is correct. 8 MR. GALLERY: Then I want to direct your attention to 9 Page 97 in TUD Exhibit 9 and also to put that on the 10 overhead. This is Page 97 from TUD Exhibit 9 entitled 11 "Alternative Plans." 12 Are you familiar with that page, Mr. Steffani? 13 MR. STEFFANI: Yes. 14 MR. GALLERY: Could you tell us what that depicts? 15 MR. STEFFANI: This develops the 131,000 acre-feet 16 in-basin demand that I discussed earlier. 17 MR. GALLERY: This was the projection of the in-basin 18 use that would ultimately be taken from New Melones project; 19 is that correct? 20 MR. STEFFANI: Yes. 21 MR. GALLERY: That shows that for year 2020 in the 22 right-hand column, halfway down, that Calaveras County would 23 be requiring 13,008 out of the New Melones Project? 24 MR. STEFFANI: Yes. 25 MR. GALLERY: And going down one step, Tuolumne County CAPITOL REPORTERS (916) 923-5447 6964 1 was projected it would be requiring 9,000 acre-feet out of 2 the New Melones Project? 3 MR. STEFFANI: That's correct. 4 MR. GALLERY: And then below that are the estimated 5 future in-basin needs within Stanislaus County and in San 6 Joaquin County; is that correct? 7 MR. STEFFANI: Yes. 8 MR. GALLERY: And that the territory within Stanislaus 9 and San Joaquin County is not within your district; it's 10 within the basin but it is not within any of the districts 11 in those two counties; is that correct? 12 MR. STEFFANI: Correct. 13 MR. GALLERY: Do you understand also that Calaveras 14 County is not apparently interested in getting water out of 15 New Melones? 16 MR. STEFFANI: I don't know that. 17 MR. GALLERY: Do you have any information on the 18 current interest of the areas within the basin that are 19 shown in Stanislaus and San Joaquin Counties for getting New 20 Melones water? 21 MR. STEFFANI: I do. 22 MR. GALLERY: What information do you have on that? 23 MR. STEFFANI: People want the water. People along -- 24 properties along our conveyance system continually ask for 25 water. And we continually tell them that we can't sell CAPITOL REPORTERS (916) 923-5447 6965 1 water outside the district and that the Bureau won't sell 2 project water unless it is sold to an organized district. 3 So we tell the people, "Come into Stockton East Water 4 District and we can provide water, in-basin water, you are 5 asking for." 6 The problem is Stanislaus County has been opposing the 7 annexations to Stockton East. As of the moment, there is 8 that snag. The people want the water. 9 MR. GALLERY: In any event, should any of those -- as 10 these in-basin uses develop, they would necessarily reduce 11 the interim water supply that you have under your contract? 12 MR. STEFFANI: Yes. 13 MR. GALLERY: They would also reduce the interim water 14 supply available to Central San Joaquin Water Conservation 15 District? 16 MR. STEFFANI: That is correct. 17 MR. GALLERY: Except for their 49,000 firm? 18 MR. STEFFANI: Yes. 19 MR. GALLERY: The 49,000 firm is the part of 180,000 20 that the in-basin users were never projected to use? 21 MR. STEFFANI: THE 49 is -- yes, that water was 22 in-basin. People would never use, correct, in the year 23 2020. 24 MR. GALLERY: To conclude, when Stockton East signed 25 its contract to get New Melones water back in 1980's, your CAPITOL REPORTERS (916) 923-5447 6966 1 district had no expectation that the New Melones supply 2 would ever be usurped to the extent that it has by the fish 3 releases that have since been put on the project? 4 MR. STEFFANI: That's for sure. 5 MR. GALLERY: Isn't it true, also, that your district 6 had no expectation that it would -- that the water quality 7 needs would never grow to such an extent that they would 8 require the water that they need? 9 MR. STEFFANI: That's correct. 10 MR. GALLERY: And both of those things have happened? 11 MR. STEFFANI: Yes. 12 MR. GALLERY: That is all I have. 13 Thank you. 14 C.O. CAFFREY: Thank you very much, Mr. Gallery. 15 Do any of the other cross-examiners, and not that we 16 want to stifle anybody, is there anybody that can complete 17 in the next ten or fifteen minutes? Anybody else? 18 Mr. Brandt, you stipulate to that? 19 MR. BRANDT: My questions will be fairly short. I 20 think some of them were actually answered by Mr. Brown's 21 questions. 22 ---oOo-- 23 // 24 // 25 // CAPITOL REPORTERS (916) 923-5447 6967 1 CROSS-EXAMINATION OF EDWARD STEFFANI 2 BY DEPARTMENT OF THE INTERIOR 3 BY MR. BRANDT 4 MR. BRANDT: I just have a couple questions about -- 5 you made a comment that any -- water that goes to the Delta 6 is -- that is going to the Delta now is a waste. 7 Is that an accurate comment? 8 MR. STEFFANI: Yes. I believe right now there is -- we 9 are probably way above what we are required for Delta 10 outflow. That is just a guess because everyone is coming 11 down to flood space. 12 MR. BRANDT: Now, are you making that comment as an 13 expert hydrologist? 14 MR. STEFFANI: No, I am not an expert hydrologist. 15 MR. BRANDT: So, you don't know -- 16 C.O. CAFFREY: I am sorry, Mr. Steffani. Will you get 17 a little closer to the mike. Thank you, sir. 18 MR. STEFFANI: I said I am not an expert hydrologist. 19 MR. BRANDT: Do you know if fish and wildlife fishery 20 -- let's be more specific. 21 Do you know if the fishery resources in the Delta 22 benefit from the water that is going into the Delta right 23 now? 24 MR. STEFFANI: Certainly, there is some benefit. The 25 point I am trying to make is, I think there is probably more CAPITOL REPORTERS (916) 923-5447 6968 1 water going into Delta than you actually need for the fish 2 at this time, in a year like this. It doesn't happen every 3 year, but once in a while you're going to have water that is 4 surplus to the need of the Delta, surplus to the needs of 5 the rivers; and when you've got those surplus conditions, 6 you ought to be sticking that water into the ground 7 somewhere. 8 MR. BRANDT: The last question is -- couple questions. 9 I believe you said something like the CVPIA took our water. 10 Is that accurate? 11 MR. STEFFANI: That is what the Bureau told us. When 12 we asked for water in '93, the Bureau said they couldn't 13 supply to us because of the CVPIA. 14 MR. BRANDT: Are you aware of the studies that the Fish 15 and Wildlife Service did on the need for in-stream flows in 16 the Stanislaus and particularly for the AFRP? 17 MR. STEFFANI: I am aware of the IFIM. I am not aware 18 of any Fish and Wildlife studies. I thought we heard other 19 people tell us today there haven't been any other studies. 20 MR. BRANDT: Are you aware of any AFRP studies? 21 MR. STEFFANI: No, I am not. 22 MR. BRANDT: Have you been involved or has your agency 23 been involved in any way in any in-stream flow requirement 24 studies in the Stanislaus? 25 MR. STEFFANI: Yes. We have been participating in CAPITOL REPORTERS (916) 923-5447 6969 1 fishery studies on the Stanislaus. As a matter of fact, 2 we've got one project going on right now that is a gravel 3 restoration project to determine why the salmon didn't spawn 4 in the artificial ripples that were built a few years ago. 5 MR. BRANDT: Are you involved in any studies that deal 6 with particularly flow requirements for fisheries, 7 in-stream flow requirements for fisheries, in the Stanislaus 8 River? 9 MR. STEFFANI: I guess not. We are involved in the 10 temperature study that you heard discussed today. We are 11 involved in this gravel restoration. We have also applied 12 for a Cal Fed funding to prevent a projected mining 13 operation in the river. But that is as much as I know we 14 are doing at the moment. 15 MR. BRANDT: No flow requirement study; you have not 16 done any flow requirement studies? 17 MR. STEFFANI: I didn't think of this. Karna thought 18 of this. 19 MR. BRANDT: I can ask him. 20 C.O. CAFFREY: You can't tell us -- Mr. Steffani, you 21 can't answer the question because that constitutes coaching 22 by counsel. 23 MR. STEFFANI: All right. I could have just thought of 24 it now. 25 MR. BRANDT: I don't think it does. CAPITOL REPORTERS (916) 923-5447 6970 1 C.O. CAFFREY: Did she remind -- was this something you 2 already knew? 3 MR. STEFFANI: Yes. 4 MR. BRANDT: He is an expert witness, and, therefore, 5 any conversations that are going on there are not 6 privileged. 7 C.O. CAFFREY: In what area is he and expert witness? 8 He identified himself as a non-expert in one phase of his 9 presumed expertise a little while ago. I am not sure it is 10 all that clear. 11 MS. HARRIGFELD: He said he was not an expert in the 12 hydrology of the Delta, I believe. 13 C.O. CAFFREY: Thank you. 14 MR. BRANDT: You are presenting him as an expert 15 witness? 16 MS. HARRIGFELD: Right. 17 C.O. CAFFREY: You can answer the question with the 18 presumption that you were reminded of something you already 19 knew. 20 MR. STEFFANI: It did remind me. The Fish and Game 21 Agreement, the '87 Fish and Game Agreement required a number 22 of studies. And I believe the CVPIA also requires the 23 Bureau to do a number of studies. So, when you asked if I 24 have done these things, the Bureau ought to be doing these 25 studies and they are late now, a few years late. CAPITOL REPORTERS (916) 923-5447 6971 1 MR. BRANDT: I understand. I am asking whether 2 Stockton East has done any flow requirement studies, flow 3 requirement studies for in-stream needs in the Stanislaus? 4 MR. STEFFANI: No. 5 MR. BRANDT: Thank you. 6 C.O. CAFFREY: Thank you, Mr. Brandt. 7 Before we adjourn for today, I am going to make mention 8 of something about the schedule. Let me also remind 9 everybody that the remaining cross-examiners for Mr. 10 Steffani are: Mr. Minasian, Mr. Godwin, Mr. Nomellini, Mr. 11 Shephard and Mr. Birmingham, who will be back here on 12 December 1st, Monday; is that correct, Ms. Whitney? 13 Ms. Leidigh, thank you. 14 I want to point out there was expression, perhaps 15 somewhat facetiously on my part -- 16 MS. WHITNEY: Tuesday. 17 C.O. CAFFREY: -- about the length of the hearing 18 scheduled through March. I want to remind everybody that 19 those dates are provisional, so that we get dates nailed 20 down if we need them. The Board has not made any decisions, 21 nor could it, preliminary decisions where it is headed. We 22 still have the issue before us of how we are going to 23 transition from a record, which has totality, but which also 24 is divided up among phases, and how we transition from that 25 to the possibility of a phased decision process. CAPITOL REPORTERS (916) 923-5447 6972 1 In my mind, I think we have had some discussion about 2 the possibility of a workshop where some kind of an open 3 meeting within one of the hearing dates, and that is still a 4 strong possibility and something that I think I would 5 recommend to my fellow Board Members. 6 So, I just didn't want to leave anybody with the 7 impression that we have a predilection that this thing is 8 going to go on ad infinitum. We may need hearing dates 9 through March and perhaps beyond and perhaps we can complete 10 before that. Again, it's an attempt to at least nail down 11 dates so that if we need them they are there. 12 With that, Mr. Stubchaer is going to remind me of 13 something. Bear with us. 14 Thank you, Mr. Stubchaer. 15 Mr. Stubchaer is reminding me that December 1st is a 16 Tuesday, not Monday. I believe I said Monday. I stand 17 corrected. 18 MS. HARRIGFELD: Chairman Caffrey, Mr. Steffani is 19 available from 9 to 11 on that Tuesday. He has a meeting 20 that begins at noon. So he could go from 9 to 11; and if it 21 goes past that, he could come back the following Wednesday, 22 which is a scheduled Board date. I had discussed earlier 23 with San Joaquin County that they would be happy to go on 24 after us so we don't waste the Board date. 25 C.O. CAFFREY: Mr. Shephard has been here for a long CAPITOL REPORTERS (916) 923-5447 6973 1 time, diligently waiting. We have accommodated witnesses in 2 the past and will do so. If we can't get you out of here in 3 two more hours on the 1st, we'll bring you back at another 4 time, Mr. Steffani. 5 MR. STEFFANI: Thank you. 6 C.O. CAFFREY: Ms. Forster reminds me to wish -- I will 7 even do this on the record. 8 We wish you all a very, very wonderful, enjoyable 9 Thanksgiving with your families and look forward to seeing 10 you back on December 1st. 11 Thank you all very much. 12 (Hearing adjourned at 4:00 p.m.) 13 ---oOo--- 14 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 6974 1 REPORTER'S CERTIFICATE 2 3 4 STATE OF CALIFORNIA ) ) ss. 5 COUNTY OF SACRAMENTO ) 6 7 8 I, ESTHER F. WIATRE, certify that I was the 9 official Court Reporter for the proceedings named herein, 10 and that as such reporter, I reported in verbatim shorthand 11 writing those proceedings; 12 That I thereafter caused my shorthand writing to be 13 reduced to typewriting, and the pages numbered 6788 through 14 6974 herein constitute a complete, true and correct record 15 of the proceedings. 16 17 IN WITNESS WHEREOF, I have subscribed this certificate 18 at Sacramento, California, on this 27th day of November 19 1998. 20 21 22 23 24 ______________________________ ESTHER F. WIATRE 25 CSR NO. 1564 CAPITOL REPORTERS (916) 923-5447 6975