STATE WATER RESOURCES CONTROL BOARD PUBLIC HEARING 1998 BAY-DELTA WATER RIGHTS HEARING HELD AT: BONDERSON BUILDING 901 P STREET SACRAMENTO, CALIFORNIA WEDNESDAY, DECEMBER 2, 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 MINABERRIGARAI, 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 2 PAGE 3 RESUMPTION OF HEARING: 7157 4 AFTERNOON SESSION: 7258 5 STOCKTON EAST WATER DISTRICT: 6 EDWARD M. STEFFANI: CROSS-EXAMINATION: 7 BY MR. BIRMINGHAM 7159 BY BOARD MEMBERS 7182 8 REDIRECT EXAMINATION: BY MS. HARRIGFELD 7187 9 RECROSS-EXAMINATION: BY MS. CAHILL 7194 10 BY MR. MINASIAN 7196 BY MR. BIRMINGHAM 7202 11 BY MR. GALLERY 7205 BY MR. SEXTON 7212 12 BY BOARD MEMBERS 7216 13 REBUTTAL TESTIMONY: WILLIAM R. JOHNSTON: 14 DIRECT EXAMINATION: BY MR. BIRMINGHAM 7227 15 CROSS-EXAMINATION: BY MR. JACKSON 7316 16 17 ---oOo--- 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 1 SACRAMENTO, CALIFORNIA 2 DECEMBER 2, 1998 3 ---oOo--- 4 C.O. CAFFREY: Good morning and welcome back to the 5 Bay-Delta Water Rights proceeding, continuing in Phase V. 6 We were going to complete our cross-examination of Mr. 7 Steffani this morning with Mr. Birmingham as the remaining 8 cross-examiner. 9 Before we do that, I don't see Mr. O'Laughlin. Is Mr. 10 O'Laughlin here? 11 UNIDENTIFIED VOICE: He's not here and will not be 12 here. 13 C.O. CAFFREY: He will not be here today. I just want 14 to let you all know, maybe somebody could convey this to Mr. 15 O'Laughlin. We had some discussion yesterday before we 16 adjourned about the possibility of a workshop. The Board 17 will be holding a workshop, the subject of which will be 18 bridging from evidence gathering to decisioning, including 19 the possibilities of phased decisioning. That will happen 20 in January, that first workshop. I say "first" because, 21 perhaps, there may be a need for another or others. But 22 that will happen in January, probably a little later than 23 sooner because of scheduling concerns. 24 We will not require or call for any briefing of any 25 subjects before that initial workshop. It will be a CAPITOL REPORTERS (916) 923-5447 7157 1 workshop to gather together and talk about theory and other 2 things prior to the need for any briefing, and also whether 3 or not briefing is needed can be discussed in that 4 particular workshop. 5 With regard to scheduling a deadline for the submission 6 of evidence for a Phase VIII, if there is to be one -- 7 What did you decide on that, Mr. Stubchaer? We were 8 going to discuss that also in the workshop or hold that off 9 to a later date? 10 C.O. STUBCHAER: One of the concerns of the parties is, 11 especially San Joaquin River Group, is they didn't want to 12 have to submit their evidence for Phase VIII before they 13 knew if there was going to be a Phase VIII. So, we 14 tentatively decided to not set the date for submission of 15 evidence and exhibits for Phase VIII until after the 16 completion of Phase II-A. 17 C.O. CAFFREY: You, of course, will be in Mr. 18 Stubchaer's capable hands when all that starts occurring. 19 Any questions or anything on what we've discussed here 20 this morning? 21 We will have a notice out with ample lead time with 22 regard to when that first workshop will occur in January. 23 Thank you. 24 Then, we are left with Mr. Birmingham to cross-examine 25 Mr. Steffani. CAPITOL REPORTERS (916) 923-5447 7158 1 Good morning, Mr. Birmingham. 2 MR. BIRMINGHAM: Good morning. 3 ---oOo--- 4 CROSS-EXAMINATION OF STOCKTON EAST WATER DISTRICT 5 BY WESTLANDS WATER DISTRICT 6 BY MR. BIRMINGHAM 7 MR. BIRMINGHAM: Mr. Steffani, my name is Tom 8 Birmingham. I represent Westlands Water District. And I am 9 sorry to bring you all the way back to Sacramento for what I 10 hope will be a very short period of time. 11 I believe in your testimony you indicated that Stockton 12 East Water District supplies water for both M&I and 13 agricultural purposes; is that correct? 14 MR. STEFFANI: Yes. 15 MR. BIRMINGHAM: Approximately how much water does 16 Stockton East Water District supply for agricultural 17 irrigation? 18 MR. STEFFANI: Surface water and groundwater or -- 19 both, okay. 20 Stockton East supplies about 170,000 feet to ag. We 21 have been supplying about 40,000 acre-feet annually to urban 22 areas. 23 MR. BIRMINGHAM: What are the predominant crops grown 24 within the service area of Stockton East Water District? 25 MR. STEFFANI: Walnuts and cherries are the predominant CAPITOL REPORTERS (916) 923-5447 7159 1 crops. 2 MR. BIRMINGHAM: In your testimony you have made 3 reference to a contract between Stockton East Water District 4 and the United States Bureau of Reclamation. 5 MR. STEFFANI: Yes. 6 MR. BIRMINGHAM: I believe in your testimony, Stockton 7 East Water District Exhibit 27, you state that: 8 Pursuant to the contract with the Department 9 of the Interior, Bureau of Reclamation, 10 Stockton East has entitlements to receive up 11 to 75,000 acre-feet of water annually from 12 the New Melones Project. (Reading.) 13 MR. STEFFANI: Yes. 14 MR. BIRMINGHAM: Does the contract distinguish between 15 M&I water and irrigation water? 16 MR. STEFFANI: Yes. 17 MR. BIRMINGHAM: Isn't it correct that the contract 18 provides that Stockton East will receive up to 10,000 19 acre-feet of water per year from New Melones for M&I 20 purposes? 21 MR. STEFFANI: Yes. 22 MR. BIRMINGHAM: And 65,000 acre-feet of water per year 23 for agricultural purposes? 24 MR. STEFFANI: Yes. 25 MR. BIRMINGHAM: I believe that you've testified that CAPITOL REPORTERS (916) 923-5447 7160 1 growers within Stockton East Water District's service area 2 are unwilling to pay for a distribution system required to 3 deliver New Melones water to their lands for irrigation? 4 MR. STEFFANI: I don't remember that testimony. 5 MR. BIRMINGHAM: I believe yesterday in response to 6 questions asked of you by Mr. Minasian you said that 7 Stockton East Water District currently cannot use New 8 Melones water for irrigation; is that correct? 9 MR. STEFFANI: Yes. 10 MR. BIRMINGHAM: Again, why is that? 11 MR. STEFFANI: I believe I said yesterday that farmers 12 are unwilling to go to the expense of converting from 13 groundwater to surface water until they know that the 14 surface water supply will be consistent. In the present 15 situation it is a year-to-year sort of thing. You don't 16 know if it is going to be there or not, so you can't 17 convince the farmers to go out and make the expenditure. 18 MR. BIRMINGHAM: Under existing circumstances, the 19 farmers are unwilling to pay for distribution system 20 required to supply New Melones water to their lands? 21 MR. STEFFANI: Yeah. I think our problem is you have 22 one definition of "distribution system" in your mind and I 23 have another. Distribution system to me means a 24 district-owned system by which we get the water to the 25 farmers. We have those facilities in place. What we don't CAPITOL REPORTERS (916) 923-5447 7161 1 have in place are the farmer's pump and his internal 2 system. 3 MR. BIRMINGHAM: Thank you for the clarification. 4 So what the farmers are unwilling to pay for at this 5 time are the facilities necessary to take water from the 6 district's distribution system to apply it to their lands? 7 MR. STEFFANI: That's correct. 8 MR. BIRMINGHAM: Until Stockton East Water District is 9 in a position to take delivery of agricultural water, the 10 maximum amount of water that Stockton East would be entitled 11 to receive from the Bureau of Reclamation on an annual basis 12 is 10,000 acre-feet for M&I purposes? 13 MR. STEFFANI: No. There is a further provision in the 14 contract that allows the conversion of the water from ag to 15 M&I purposes. I think it is the next paragraph, if I 16 remember correctly. 17 Would you help me? Where is the section that you are 18 looking at? 19 MR. BIRMINGHAM: There is a Paragraph 3, Water to be 20 Furnished to Contractor; is that correct? 21 MR. STEFFANI: We are going to look here. It starts on 22 Page 5. I find one reference. I am not sure this is the 23 only one, on Line 6 on Page 9 of the contract. 24 Anytime where water for ag use is converted 25 to M&I use, the minimum quantities of ag CAPITOL REPORTERS (916) 923-5447 7162 1 water for which payment is required pursuant 2 to Subdivision C, shall be adjusted 3 accordingly. (Reading.) 4 Somewhere ahead of that it talks about converting. 5 Line 3 on Page 9. May be converted to M&I use, should 6 be added -- so on -- 7 MR. BIRMINGHAM: Has Stockton East Water District made 8 a request to Bureau of Reclamation to convert agricultural 9 water to M&I water? 10 MR. STEFFANI: I believe we do that each year when we 11 submit our schedule. We are required to submit a schedule 12 by, I think, October of each year, showing how much water we 13 intend to use, how much M&I, how much ag, what the monthly 14 allotments are. 15 MR. BIRMINGHAM: In response to some questions by Mr. 16 O'Laughlin, you have indicated that groundwater extractions 17 by farmers on the east side of San Joaquin County are 18 creating an overdraft? 19 MR. STEFFANI: That's most of the overdraft is caused 20 by ag pumping, yes. 21 MR. BIRMINGHAM: And the purpose of obtaining your 22 contract from New Melones was to reduce reliance on the 23 groundwater by irrigators? 24 MR. STEFFANI: Yes. 25 MR. BIRMINGHAM: That was to ameliorate the overdraft? CAPITOL REPORTERS (916) 923-5447 7163 1 MR. STEFFANI: Yes. 2 MR. BIRMINGHAM: Your testimony, Stockton East Water 3 District Exhibit 27, talks about the enactment of the 4 Central Valley Project Improvement Act; is that correct, 5 Mr. Steffani? 6 MR. STEFFANI: Yes. 7 MR. BIRMINGHAM: You indicate that, as a result of the 8 enactment of the Central Valley Project Improvement Act, the 9 availability of water from New Melones for Stockton East 10 Water District has been diminished? 11 MR. STEFFANI: That's what we are told. That is the 12 reason that Bureau gives us, yes. 13 MR. BIRMINGHAM: Isn't it correct, Mr. Steffani, the 14 implementation of the Central Valley Project Improvement Act 15 has also resulted in the reduced reliability of water 16 supplies for others who are CVP contractors? 17 MR. STEFFANI: Yes. 18 MR. BIRMINGHAM: In fact, the reliability of water 19 supplies for CVP contractors south of the Delta has been 20 reduced to approximately 65 to 70 percent on the long-term 21 average; isn't that correct? 22 MR. STEFFANI: Yes. 23 MR. BIRMINGHAM: Those water contractors south of the 24 Delta have permanent contracts? 25 MR. STEFFANI: What do you mean by "permanent"? CAPITOL REPORTERS (916) 923-5447 7164 1 MR. BIRMINGHAM: The contracts which are held by the 2 contractors south of the Delta are long-term water supply 3 contracts? 4 MR. STEFFANI: Forty-year contracts, like ours. 5 MR. BIRMINGHAM: Your contract provides for an interim 6 supply of water; is that correct? 7 MR. STEFFANI: Yes. Do you know what "interim" means 8 in this case? 9 MR. BIRMINGHAM: Whether I know what interim means 10 really isn't relevant, MR. Steffani. 11 MR. STEFFANI: I'll remind you of what it means. 12 MR. BIRMINGHAM: That's okay. I'm sure we can look up 13 the definition as contained in the contract and in your 14 testimony. 15 But your contract is for an interim supply? 16 MR. STEFFANI: Yes. 17 MR. BIRMINGHAM: I believe that you testified that in 18 response to questions of you by other attorneys that at the 19 time Stockton East Water District signed the contract, 20 Stockton East Water District understood that the water which 21 it could receive under the -- pursuant to the contract was 22 subject to reduction? 23 MR. STEFFANI: Subject to reduction as the basin 24 developed, yes. 25 MR. BIRMINGHAM: Now, the contracts which are held by CAPITOL REPORTERS (916) 923-5447 7165 1 contractors south of the Delta, are contracts which are 2 long-term contracts for a firm supply of water; is that 3 correct? 4 MR. STEFFANI: I don't know what those contracts 5 provide. 6 MR. BIRMINGHAM: You understand the distinction between 7 a contract for firm supply and a contract for interim 8 supply? 9 MR. STEFFANI: In our case, they are one in the same. 10 MR. BIRMINGHAM: Are you familiar with the Central San 11 Joaquin contract for water from New Melones? 12 MR. STEFFANI: Yes. 13 MR. BIRMINGHAM: That contract, the contract for 14 Central San Joaquin, distinguishes between interim supplies 15 and firm supplies? 16 MR. STEFFANI: Yes. 17 MR. BIRMINGHAM: Your contract is only for an interim 18 supply? 19 MR. STEFFANI: Correct. 20 MR. BIRMINGHAM: There is a distinction between an 21 interim and firm supplies? 22 MR. STEFFANI: Yes. 23 MR. BIRMINGHAM: And your contract does not contain any 24 water for a firm supply? 25 MR. STEFFANI: Correct. CAPITOL REPORTERS (916) 923-5447 7166 1 MR. BIRMINGHAM: Yesterday you were asked a question by 2 Mr. Nomellini about Westlands' contract. Have you ever 3 reviewed Westlands' contract? 4 MR. STEFFANI: No. 5 MR. BIRMINGHAM: You are unable to make any comparison 6 of the Westlands' contract to the Stockton East contract? 7 MR. STEFFANI: That's right. 8 MR. BIRMINGHAM: Mr. Nomellini also asked you some 9 questions about the contract between the Bureau of 10 Reclamation and East Bay MUD. 11 Do you recall those questions? 12 MR. STEFFANI: Yes. 13 MR. BIRMINGHAM: Isn't it correct, Mr. Steffani, that 14 East Bay MUD has not taken any water, pursuant to its 15 contract with the Bureau of Reclamation, out of the Folsom 16 South Canal? 17 MR. STEFFANI: Correct. 18 MR. BIRMINGHAM: At the time Stockton East Water 19 District signed a contract and submitted it to the Bureau 20 for approval for water from the American River Project, it 21 was expected that the Auburn Dam would be constructed? 22 MR. STEFFANI: No. 23 MR. BIRMINGHAM: When did -- 24 MEMBER FORSTER: Excuse me. 25 C.O. CAFFREY: Ms. Forster. CAPITOL REPORTERS (916) 923-5447 7167 1 MEMBER FORSTER: Would you repeat that question? I 2 heard his answer, but I didn't hear your question. 3 MR. BIRMINGHAM: At the time Stockton East Water 4 District signed a contract for water from the American River 5 Project and submitted it to the Bureau for approval, it was 6 expected that the Auburn Dam would be constructed? 7 MR. STEFFANI: It may have been understood, but it 8 wasn't a condition. The contract was not conditioned upon 9 Auburn being built. 10 MR. BIRMINGHAM: But there were assumptions about the 11 availability of water from the east side division; is that 12 correct? 13 MR. STEFFANI: Well, the east side division, that is a 14 much broader -- I don't know what assumptions were made for 15 supply to the east side division. We're talking about the 16 Stockton East contract for American River water. They're 17 two different animals. 18 MR. BIRMINGHAM: Was the American River Projects -- let 19 me restate the question. 20 The American River CVP facilities were facilities of a 21 division referred to as the east side division; is that 22 correct? 23 MR. STEFFANI: I don't know which came first, Folsom 24 South or east side. In my mind, east side division started 25 at the end of Folsom South Canal. CAPITOL REPORTERS (916) 923-5447 7168 1 MR. BIRMINGHAM: But at the time Stockton East Water 2 District executed a contract and submitted it for approval 3 by the Bureau of Reclamation, there was an expectation that 4 Auburn Dam would be constructed? 5 MR. STEFFANI: I think there was an expectation, yes. 6 MR. BIRMINGHAM: And the water supply to be provided to 7 East Bay MUD and to Stockton East Water District for a 8 portion of that water supply was to be provided through the 9 Auburn Dam? 10 MR. STEFFANI: Could be supplied. But again, neither 11 of the contracts were conditioned upon Auburn Dam being 12 constructed. There was water there without Auburn. There 13 is water there without Auburn. 14 MR. BIRMINGHAM: Yesterday, Mr. Steffani, I believe you 15 testified in response to a number of questions that water 16 users in your area are opposed to construction of a 17 peripheral canal? 18 MR. STEFFANI: It's not just the water users. I think 19 the community at large is opposed to construction of a 20 peripheral canal, yes, of the peripheral canal. 21 MR. BIRMINGHAM: Would you agree with me that 22 completion of the Folsom South Canal would be tantamount to 23 the completion of a mini peripheral canal? 24 MR. STEFFANI: No, no, I don't. All right. You pushed 25 a button here. Here comes another speech. CAPITOL REPORTERS (916) 923-5447 7169 1 C.O. CAFFREY: No speeches; this is testimony. 2 MR. BIRMINGHAM: Mr. Steffani is welcome to give his 3 speech. 4 C.O. CAFFREY: Mr. Steffani, I'm only being 5 semi-facetious. You're statement is acceptable if it is 6 relevant to the question. 7 MR. STEFFANI: I'll try to make it relevant. 8 MR. BIRMINGHAM: I presume that his speech will be an 9 explanation as to why he disagrees with my question. 10 C.O. CAFFREY: That is what we are presuming up here. 11 MR. STEFFANI: Extension of the Folsom South Canal or 12 the provision of another canal that was connected to -- 13 let's say connected to the Sacramento River near Freeport. 14 If that canal conveyed American and Sacramento River water 15 down to the east side, that water could replace water that 16 is now being taken from the east side streams by those 17 entities dependent upon on the east side streams. 18 Those east side streams would then be able to flow 19 naturally in the Delta, which makes the Delta people happy. 20 They don't like the idea of the peripheral canal because it 21 doesn't do what I just said. It doesn't allow for the east 22 side streams to flow naturally into the Delta. 23 I better stop there before it gets any broader. 24 MR. BIRMINGHAM: Well, let me explore this with you. 25 East Bay MUD takes water from the Mokelumne River? CAPITOL REPORTERS (916) 923-5447 7170 1 MR. STEFFANI: Yes. East Bay MUD is a unique character 2 in its play. We have to treat them differently. The way we 3 handle East Bay MUD through this plan that I sketched is to 4 recharge the basins on the east side and to supply East Bay 5 MUD out of the recharged water during dry years. So there 6 is no East Bay MUD impact upon the Delta in dry years. 7 MR. BIRMINGHAM: So, the scenario you just described 8 doesn't apply to one of the major diverters from east side 9 streams? 10 MR. STEFFANI: It wouldn't, but it could. 11 MR. BIRMINGHAM: Mr. Nomellini, in his grilling of you 12 yesterday, asked you some questions about the per capita 13 consumption of water in Riverside County and San Bernardino 14 County. 15 Do you recall that, Mr. Steffani? 16 MR. STEFFANI: Yes. 17 MR. BIRMINGHAM: What is the per capita consumption of 18 water in San Joaquin County? 19 MR. STEFFANI: You're talking the urban area? 20 MR. BIRMINGHAM: Well, Mr. Nomellini asked you to 21 compare the per capita consumption of water in San Joaquin 22 County with the per capita consumption of water in Riverside 23 County. That was his question, wasn't it? 24 MR. STEFFANI: Yes. I took that to mean urban. 25 MR. BIRMINGHAM: Based upon that assumption, what is CAPITOL REPORTERS (916) 923-5447 7171 1 the per capita consumption of water in San Joaquin County? 2 MR. STEFFANI: The urban use is about a half an 3 acre-foot per connection per year, half an acre-foot for 4 single family dwelling unit equivalent per year. 5 MR. BIRMINGHAM: What is the assumption made as to the 6 number of people living in a dwelling? 7 MR. STEFFANI: It used to be three. I think it was 8 three. I think it is a little less than three. It used to 9 be three and a half, excuse me. I think it is about three 10 now. 11 MR. BIRMINGHAM: Can you tell me the per capita 12 consumption of water in Riverside County? 13 MR. STEFFANI: I think it is in excess of an acre-foot 14 per year. 15 MR. BIRMINGHAM: But you don't know? 16 MR. STEFFANI: I'm not positive. I don't know. I 17 believe it slightly exceeds an acre-foot per year. 18 MR. BIRMINGHAM: And do you know what the per capita 19 consumption of water is in San Bernardino County? 20 MR. STEFFANI: In excess of an acre-foot per single 21 family dwelling unit per year. 22 MR. BIRMINGHAM: You were not present yesterday when I 23 asked this question of Mr. Pulver. I would like to ask it 24 of you, because it relates to an allegation that I 25 understand that has been made by Stockton East Water CAPITOL REPORTERS (916) 923-5447 7172 1 District in the past. 2 Are you aware of any circumstances in which the Bureau 3 of Reclamation has released water from New Melones Reservoir 4 for the sole purpose of allowing the export of that water 5 from the Delta via the Tracy Pumping plants or Banks Pumping 6 Plant? 7 MR. STEFFANI: I don't think that there has ever been a 8 statement by the Bureau that that's why the water is being 9 released. 10 We suspect that -- it is more than suspect. I think we 11 are pretty well convinced that the amount of water that is 12 being released for so-called fish needs in the Stanislaus is 13 much higher than is actually needed. We have yet to see the 14 science that suggests that X acre-feet are required for fish 15 in the Stanislaus. We suspect that surplus amounts are 16 being released downstream of the Stanislaus and then 17 abandoned by the Bureau so that they can be picked up by 18 others. 19 MR. BIRMINGHAM: You suspect that, but you have no 20 evidence of that? 21 MR. STEFFANI: Yeah. And I have no evidence to confirm 22 that these large quantities of water are actually required 23 by the Stanislaus fishery. 24 MR. BIRMINGHAM: Has Stockton East Water District -- 25 MR. CAMPBELL: Excuse me. I would like to interpose an CAPITOL REPORTERS (916) 923-5447 7173 1 objection at this time to the nature of the testimony being 2 provided by Mr. Steffani. 3 As the Board has noticed in its hearing notice, the 4 purpose of this hearing is specifically not to determine 5 in-stream flow needs for protection of fish and wildlife on 6 the tributaries. So, his testimony on that subject is 7 completely irrelevant, baseless and out of order. The Board 8 has previously ruled on an objection of this very same 9 nature and sustained an objection regarding the relevance of 10 this type of testimony. 11 I would like to raise it again at this time. 12 C.O. CAFFREY: All right. Your objection is on the 13 record, Mr. Campbell. You are objecting to the answer and 14 not the question? 15 MR. CAMPBELL: That is correct. 16 C.O. CAFFREY: But the answer is the answer, and it 17 goes to the Board to determine the weight of evidence in 18 these matters. 19 Mr. Nomellini, I didn't see you there. Perhaps I spoke 20 too soon. 21 MR. NOMELLINI: I think you disposed of it. The 22 objection was to the answer, not to the question. The 23 witness is required to answer the question. And in defense 24 of Mr. Birmingham, which he needs none, cross-examination 25 should allow him broadly to question this witness in an area CAPITOL REPORTERS (916) 923-5447 7174 1 that he is pursuing. 2 C.O. CAFFREY: Thank you, Mr. Nomellini. I agree with 3 you. And as you all know, this Board has wide discretion, 4 under the law and under its regulations, as to the 5 determination of the weight that it gives to evidence. Your 6 comment is on the record. 7 You have something else, Mr. Campbell? 8 MR. CAMPBELL: I would like to add that the question 9 doesn't go to the weight of the evidence. That type of 10 evidence, under the Board's hearing notice, can have no 11 weight, and it can form the basis of no finding or no 12 decision by the Board at this hearing. 13 C.O. CAFFREY: I appreciate your refinement of the 14 question, Mr. Campbell. It still goes to the Board to make 15 the initial determination of whether or not, under the law, 16 the testimony is weightless or has some other degree of 17 weight. So, you are in the record, and we appreciate your 18 comments. 19 Please proceed, Mr. Birmingham. 20 MEMBER DEL PIERO: I hope Mr. Birmingham brought his 21 fan along with him. 22 MR. BIRMINGHAM: Can I ask Mr. Nomellini? Were you the 23 one who was applauding yesterday, Mr. Nomellini? 24 MR. NOMELLINI: I was, Mr. Birmingham. 25 MR. BIRMINGHAM: If I understand your testimony, Mr. CAPITOL REPORTERS (916) 923-5447 7175 1 Steffani, you have no evidence that the Bureau of 2 Reclamation has released water to allow the export of it 3 from the Delta and you have no evidence that the flows that 4 are being released from New Melones are required for fish in 5 the Stanislaus River? 6 MR. STEFFANI: I think I do have some evidence. We 7 have -- the only acknowledged scientific work that has been 8 done so far is the IFIM, which showed that the fish needs 9 were on the order of 150,000 acre-feet a year. The Bureau 10 is releasing upwards -- well, in excess of 400,000 acre-feet 11 annually. 12 So, that evidence suggests to me that we are releasing 13 too much water for fish. As a matter of fact, I think we 14 talked about this before, too. There is too much water in 15 New Melones today. Fish and Wildlife is trying to keep the 16 flow, the channel flow, down to 500 second-feet, a maximum 17 flow of 500 second-feet. So we don't interfere with 18 spawning. We don't wash the eggs out. We got to get the 19 flood reservations space down. 20 So we, Stockton East, are taking, we are conveying some 21 of that New Melones water through our system, not using it. 22 We are helping the Bureau, Fish and Wildlife get rid of some 23 of that New Melones water so we can keep the flow below 500 24 second-feet. 25 If you ran at 500 second-feet year-round, that would be CAPITOL REPORTERS (916) 923-5447 7176 1 365,000 acre-feet a year. We are talking 440-, 460,000 2 acre-feet. So the numbers don't make sense to me. I wish 3 we could, in spite of what my friends at Fish and Game are 4 saying, I wish to heck we could sit down and do the science 5 that is necessary to know exactly how much water needs to be 6 released day one, day two and so on, and then decide how we 7 are going to deal with people like Stockton East. 8 But to continue on as we are, just let them bump all 9 this extra water, and we suffer, it doesn't seem to make 10 much sense. 11 MR. BIRMINGHAM: I would like to follow up on that in 12 just a moment. I violated one of my principal rules. I 13 asked a compound question. 14 C.O. CAFFREY: And you didn't object. 15 MR. BIRMINGHAM: Nor did anybody else. 16 The evidence or the evidence that you have just related 17 to concerned the aspects of my question that too much water 18 is being released for fish; is that correct? 19 MR. STEFFANI: I think my answer is yes. 20 MR. BIRMINGHAM: You've said that in excess of 400,000 21 acre-feet of water is being released from New Melones for 22 fish? 23 MR. STEFFANI: Yes. 24 MR. BIRMINGHAM: But isn't it correct, Mr. Steffani, 25 that the release of over 400,000 acre-feet of water from New CAPITOL REPORTERS (916) 923-5447 7177 1 Melones is -- 2 MR. STEFFANI: Fish and water quality. 3 MR. BIRMINGHAM: -- for fish and water quality? 4 MR. STEFFANI: Yes. 5 MR. BIRMINGHAM: Isn't it correct that the Bureau of 6 Reclamation is responsible for maintaining water quality in 7 the Delta? 8 MR. STEFFANI: The Bureau is required to maintain water 9 quality in the Delta? I guess there's some responsibility 10 for the Delta. I'm thinking of the Vernalis 11 standards. There is some requirement. There is some 12 responsibility of the Bureau, yes. 13 MR. BIRMINGHAM: So, in determining whether excess 14 water is being released for -- I think Ms. Harrigfeld would 15 also like you to observe that. 16 MR. STEFFANI: Yes, I will. 17 MR. BIRMINGHAM: Go ahead and look at what Ms. 18 Harrigfeld would like you to add to your answer. 19 Isn't it correct, Mr. Steffani, that when you talk 20 about the amounts of water that are being released from New 21 Melones, that you can't talk about it only in terms of 22 releases for fish? 23 MR. STEFFANI: Well, when New Melones was authorized, 24 it was quite clear that up to 70,000 acre-feet annually 25 would be released for water quality. I don't know how that CAPITOL REPORTERS (916) 923-5447 7178 1 number has gotten to be so much larger. 2 There are other ways for the Bureau to maintain, as you 3 say, Delta quality. It doesn't have to be New Melones. It 4 can be San Luis. It can be Friant. There is all kinds of 5 ways to do it. So why do you insist that New Melones must 6 carry the entire load? 7 MR. BIRMINGHAM: Mr. Steffani, you just touched on 8 something that you also missed yesterday with respect to my 9 examination of Mr. Pulver. I would like to talk about that 10 70,000 acre-feet. 11 There was an agreement between the Bureau of 12 Reclamation and the Central Valley Water Quality Control 13 Board, up to 70,000 acre-feet would be released to maintain 14 water quality standards at Vernalis; is that correct? 15 MR. STEFFANI: Yes. 16 MR. BIRMINGHAM: Isn't it also correct that when the 17 State Water Resources Control Board issued D-1422, it 18 rejected the limitation imposed by that agreement? 19 MR. STEFFANI: I don't know if the Board rejected. I 20 think the final order left the maximum condition out, but 21 the Board retained jurisdiction. And we have always hoped 22 that the Board in its wisdom would be fair in finding ways 23 to maintain Delta quality. 24 MR. BIRMINGHAM: So what you're saying is that when -- 25 prior to permits being issued for New Melones Reservoir CAPITOL REPORTERS (916) 923-5447 7179 1 there was an expectation that it would only require 70,000 2 acre-feet of water to maintain water quality at Vernalis? 3 MR. STEFFANI: Yes. And Congress expected that, too, 4 when it authorized New Melones. Everyone expected it. 5 MR. BIRMINGHAM: That expectation is very similar to 6 the expectation that Auburn Dam would be constructed. Both 7 expectations have turned out to be wrong, Mr. Steffani? 8 MR. STEFFANI: No, in one case, Congress authorized New 9 Melones for a specific purpose and included the 70,000 10 maximum for water quality. Auburn has not been authorized. 11 MR. BIRMINGHAM: Your testimony is that construction of 12 Auburn Dam is not authorized? 13 MR. STEFFANI: Well, it may have been at one time. 14 Then it was deauthorized, and now we're seeking 15 reauthorization. 16 MR. BIRMINGHAM: I would like to show to you, Mr. 17 Steffani, Department of the Interior Exhibit 4-C and ask if 18 you are familiar with a Department of the Interior Exhibit 19 4-C. 20 MR. STEFFANI: Yes, I believe I have seen this 21 before. 22 MR. BIRMINGHAM: May we take a moment while Ms. 23 Harrigfeld obtains a copy for Mr. Steffani? 24 C.O. CAFFREY: Go right ahead. 25 MR. STEFFANI: I have it. CAPITOL REPORTERS (916) 923-5447 7180 1 MR. BIRMINGHAM: Is it your understanding, Mr. 2 Steffani, that Department of the Interior Exhibit 4-C 3 represents historical releases from New Melones Reservoir 4 for the period from 1991 to 1997? 5 MR. STEFFANI: Yes. 6 MR. BIRMINGHAM: I would like to ask you to look at 7 1995 as an example. I believe that Mr. Ploss testified that 8 the releases that are in 1995 that are represented by red 9 are releases made under the 1987 fish agreement with the 10 Department of Fish and Game. 11 Is that your understanding? 12 MR. STEFFANI: Yes, it is. 13 MR. BIRMINGHAM: It shows that approximately 100,000 14 acre-feet was released in that year for fish purposes; is 15 that correct? 16 MR. STEFFANI: Yes. 17 MR. BIRMINGHAM: Do you have any reason to doubt the 18 accuracy of that number? 19 MR. STEFFANI: No, I don't. 20 MR. BIRMINGHAM: Now, this shows that -- this being 21 Department of the Interior Exhibit 4-C -- shows that the 22 first year which water was made available to CVP contractors 23 from New Melones was 1995? 24 MR. STEFFANI: It shows that. I thought we started 25 taking water in '96. CAPITOL REPORTERS (916) 923-5447 7181 1 MR. BIRMINGHAM: That was going to be my question, Mr. 2 Steffani. When did Stockton East Water District first take 3 delivery of water from New Melones Reservoir? 4 MR. STEFFANI: I believe it was '96. This is our third 5 year, but I could be mistaken. Time goes so fast. 6 MR. BIRMINGHAM: I have no further questions. 7 C.O. CAFFREY: Thank you, Mr. Birmingham. 8 Any questions from the staff? 9 MS. LEIDIGH: I don't have any. 10 MR. HOWARD: No questions. 11 C.O. CAFFREY: Thank you. 12 Questions from the Board? 13 Ms. Forster, then Mr. Stubchaer. 14 Ms. Forster. 15 ---oOo--- 16 CROSS-EXAMINATION OF STOCKTON EAST WATER DISTRICT 17 BY BOARD MEMBERS 18 MEMBER FORSTER: I wanted to ask you about your per 19 capita use, your urban use, your area versus Riverside and 20 San Bernardino. I am curious as to where you got those 21 figures. I know that Bulletin 160 has just been completed 22 this past year. And we had the California Urban Water 23 Conservation Council here giving us a report. 24 Is that where you got these figures? 25 MR. STEFFANI: No. I haven't looked at the current DWR CAPITOL REPORTERS (916) 923-5447 7182 1 bulletin. I am remembering from, I guess, the last one, 2 three years ago. 3 MEMBER FORSTER: Are you certain that that was what it 4 said? Because water conservation is a big issue, and we 5 want to be accurate on these things. 6 MR. STEFFANI: The one acre-feet per year? 7 MEMBER FORSTER: In Riverside versus half an acre-foot 8 in Stockton. 9 MR. STEFFANI: I am absolutely certain of the half an 10 acre-foot in Stockton. And I believe it does exceed an 11 acre-foot in the southern state areas. I can't give you the 12 exact number, but we know, for example, that Stockton use is 13 about half, not quite -- a little bit more than half of what 14 is used here in the Sacramento area, for example. And the 15 areas to the south use slightly more than Sacramento does. 16 MEMBER FORSTER: How do you know that if there is no 17 meters? 18 MR. STEFFANI: Well, they have some meters here. You 19 are right. It is mostly a metered community. 20 MEMBER FORSTER: It's just contrary to what I have seen 21 in writing, but I guess the record -- somebody else may 22 clear up the record later. 23 MR. STEFFANI: I would be happy to. I have the DWR 24 bulletin sitting on my drafting table. I haven't opened it. 25 I will open it when I get back to my office and double-check CAPITOL REPORTERS (916) 923-5447 7183 1 it. 2 C.O. CAFFREY: Mr. Stubchaer, then Mr. Del Piero, then 3 Mr. Brown. 4 Mr. Stubchaer. 5 C.O. STUBCHAER: Mr. Steffani, I believed you testified 6 that the per acre use of water by agriculture and 7 residential areas are about the same in your area? 8 MR. STEFFANI: Yes. 9 C.O. STUBCHAER: Is that consumptive use or the 10 equivalent of what you might call applied water? 11 MR. STEFFANI: This would be consumptive use. 12 C.O. STUBCHAER: Consumptive? 13 MR. STEFFANI: Yes. 14 C.O. STUBCHAER: So, the questions about return flow -- 15 Mr. Brown asked you about the net effect of water, potential 16 water, reclamation. So, are you considering the water that 17 goes into the sewage system a consumptive use so that if it 18 is reclaimed, then it becomes true reclamation and a net 19 benefit? Expressed that understandable? 20 MR. STEFFANI: All right. The urban use is about 21 62,000 acre-feet a year. The urban area produces about 22 30,000 acre-feet water of wastewater, a little less than 23 half of what they consume, of the water they consume. So if 24 you were to reclaim some or all of the 30, you are getting 25 back some of what you -- what they have run through their CAPITOL REPORTERS (916) 923-5447 7184 1 meter, but you are not getting less than half. 2 C.O. STUBCHAER: Right. Then in ag areas you are 3 dealing with consumptive use, the return flow is accounted 4 for in your calculations? 5 MR. STEFFANI: We have very little return flow. We 6 encourage flood irrigation with surface water in our area 7 because we get deep percolation. We get recharge. So our 8 application rate is about double the ET purposely for 9 recharge. 10 C.O. STUBCHAER: Thank you. 11 MR. STEFFANI: As I say, the tailwater is practically 12 nonexistent because we monitor it very carefully. 13 C.O. CAFFREY: Mr. Del Piero. 14 MEMBER DEL PIERO: Mr. Steffani, in terms of the 15 statistics that you were referring to related to consumptive 16 water use and references that you were relying on, whether 17 it be Stockton or Riverside -- first of all, let me just 18 qualify. Those consumptive water uses you were referring to 19 were residential consumptive water uses? 20 MR. STEFFANI: Yes. 21 MEMBER DEL PIERO: Do you know whether or not there is 22 any differentiation in terms of lot size, the number of 23 fixtures, nature of landscaping in terms of the comparisons 24 that are made between consumptive water use in Stockton and 25 Riverside and San Bernardino and anywhere else in the state CAPITOL REPORTERS (916) 923-5447 7185 1 or the Central Valley system? 2 MR. STEFFANI: I don't. The half an acre-foot that we 3 get in the Stockton area is simply the acre-feet we supply 4 per year divided by the number of connections. 5 MEMBER DEL PIERO: So, the acre-feet you provide per 6 year divided by the number of connections, regardless of 7 whether not those connections are apartments, condominiums 8 with no yards or single family, detached houses on 9 three-acre parcels? 10 MR. STEFFANI: Yes. 11 MEMBER DEL PIERO: Thank you. 12 C.O. CAFFREY: Thank you, Mr. Del Piero. 13 Mr. Brown. 14 MEMBER BROWN: I just did some quick calculations on 15 that unit, Mr. Del Piero, and .5 acre-feet, and I just 16 penciled out a rough estimate of 170 gallons per day per 17 capita. 18 Does that sound about right? 19 MR. STEFFANI: Yes. 20 MEMBER BROWN: Using about 300 gallons per day per 21 capita in Sacramento, is that the figure you are making 22 reference to? 23 MR. STEFFANI: Yes. 24 MEMBER BROWN: That is all I have, Mr. Chairman. 25 C.O. CAFFREY: Thank you very much, Mr. Brown. CAPITOL REPORTERS (916) 923-5447 7186 1 Do you have any redirect, Ms. Harrigfeld? 2 MS. HARRIGFELD: Just a couple of questions. 3 C.O. CAFFREY: Please proceed, Ms. Harrigfeld. 4 ---oOo--- 5 REDIRECT EXAMINATION OF STOCKTON EAST WATER DISTRICT 6 BY MS. HARRIGFELD 7 MS. HARRIGFELD: Mr. Minasian asked you a series of 8 questions regarding the use of recycled wastewater to 9 recharge the groundwater basin. 10 Do you remember those questions? 11 MR. STEFFANI: Yes. 12 MS. HARRIGFELD: Are you aware that the City of 13 Stockton has submitted considerable evidence regarding the 14 City's efforts of investigating the reuse of water, of 15 recycled wastewater? 16 MR. STEFFANI: Yes, I am. 17 MS. HARRIGFELD: Don't you think that those source 18 questions are more appropriately asked of the City's 19 representatives in light of the fact that you didn't prepare 20 the reports? 21 MR. STEFFANI: Yes, definitely. 22 MS. HARRIGFELD: Mr. Minasian asked you a question 23 regarding whether the district supported taking the water 24 away or discontinuing the supply of water to the west side 25 area farmers. In response to that question you stated that CAPITOL REPORTERS (916) 923-5447 7187 1 you didn't want to take the water away from anyone, but we 2 needed to build the drain. 3 MR. STEFFANI: Right. 4 MS. HARRIGFELD: Isn't it true that construction of an 5 out-of-valley drain to carry the saltwater out of valley is 6 a long-term solution? 7 MR. STEFFANI: It would be the permanent solution. 8 MS. HARRIGFELD: Isn't it true that short-term actions 9 must be taken? 10 MR. STEFFANI: Yes. Okay. We don't know how long it 11 is going to take to build the drain. Hopefully, it's only 12 going to take two or three years, right? Not 50 years. But 13 if it is more like 50 years, then we have to do something 14 during that 50-year period. That something should not be 15 putting farmers out of business on the west side. There 16 ought to be some on-site source control. There's got to be 17 something done so that people, like Stockton citizens who 18 depend on New Melones, don't see their water used to dilute 19 pollution. There's got to be some kind of a short-term 20 solution. 21 MS. HARRIGFELD: So, you would agree that the Regional 22 Board should establish water quality objectives upstream of 23 Vernalis? 24 MR. STEFFANI: Yes, yes. We should set standards 25 probably above the mouth of the Merced and quit picking on CAPITOL REPORTERS (916) 923-5447 7188 1 Vernalis. 2 MS. HARRIGFELD: Mr. Nomellini asked you some questions 3 regarding the districts contract with the Bureau of 4 Reclamation. After the Bureau notified the district that it 5 had five years to construct its distribution facilities, did 6 the Bureau contact the district in any way letting them know 7 that water wouldn't be available upon completion of the 8 distribution facilities? 9 MR. STEFFANI: No, no. The first we heard, I believe, 10 was 1993, after we had made a request for water and after 11 the CVPIA was adopted. 12 MS. HARRIGFELD: How many years have you been involved 13 in water planning? 14 MR. STEFFANI: About 20, 25. 15 MS. HARRIGFELD: When planning a water project, isn't 16 it true that projects are normally planned over a 40-year 17 basis? 18 MR. STEFFANI: Yes. 19 MS. HARRIGFELD: So the fact that the New Melones 20 documents anticipated that there would be an interim supply, 21 it still made sense to contract from a water planning 22 perspective? 23 MR. STEFFANI: Absolutely. We had the Bureau 24 documents. We had the Bureau contract. The Bureau 25 documents showed that this, quote, interim supply would be CAPITOL REPORTERS (916) 923-5447 7189 1 available until the basin is developed. 2 Somehow people on the other side want to define the 3 word "interim" as if it's more temporary. In our case, 4 interim could be permanent if the political basin never 5 develops. The basin must develop before our supply is 6 diminished. 7 Based on the Bureau documents, all of the planning 8 documents that the Bureau put together before New Melones 9 was built, it appeared to us to be a very safe thing to do, 10 to build a project for 40 years. And we used those same 11 documents to sell bonds. And we convinced bond buyers -- 12 these were 30-year bonds -- we convinced the bond buyers, 13 using the Bureau documents again, that the water would, in 14 fact, be there for at least 30 years, from roughly 1990 to 15 2020. 2020 is about when our contract expires, 2022 or 16 2024. 17 MS. HARRIGFELD: Isn't it true that Central is 18 allocated 49,000 acre-feet of firm supply from New Melones? 19 MR. STEFFANI: Yes. 20 MS. HARRIGFELD: Does Central utilize Stockton East 21 Water's distribution facilities that were constructed? 22 MR. STEFFANI: Yes. We wheeled their 49,000 acre-feet 23 annually through our conveyance system. 24 MS. HARRIGFELD: Have the counties within the basin 25 developed as anticipated in the supplemental EIS? CAPITOL REPORTERS (916) 923-5447 7190 1 MR. STEFFANI: No. There hasn't been any development 2 within the basin, any development that had been anticipated 3 in the Bureau documents. Absolutely none. 4 MS. HARRIGFELD: There were a number of questions asked 5 of you regarding the rate cap imposed on groundwater and 6 surface water charges within Stockton East Water District. 7 Isn't it true that the district has asked our local 8 legislators to introduce legislation that would remove the 9 rate cap? 10 MR. STEFFANI: Yes. We have asked our local 11 legislators, probably for the last three years and maybe 12 longer, to sponsor legislation that would either modify or 13 remove the rate cap. 14 MS. HARRIGFELD: Is the district considering proceeding 15 with an election to remove the rate cap? 16 MR. STEFFANI: The district is currently contemplating 17 holding an election that would, under our special act -- let 18 me see if I can remember the language. If the majority of 19 the voters in the district approve financing for a 20 distribution system for supplemental water, then -- or if 21 they approve a contract for supplemental water, then the 22 rate cap language disappears. 23 So we could hold an election for the purpose of 24 approving bonds to build a piece of a distribution system 25 and then the rate cap would disappear. CAPITOL REPORTERS (916) 923-5447 7191 1 MS. HARRIGFELD: In questions -- in response to -- in 2 answers to questions in response to Mr. Birmingham, you 3 stated that Congress authorized 70,000 acre-feet for water 4 quality. 5 Isn't it true that the Congressional authorization did 6 not specifically authorize water quality as a purpose, but, 7 instead, directed a study to be conducted? 8 MR. STEFFANI: That is correct. That is correct. 9 MS. HARRIGFELD: That is all I have. 10 C.O. CAFFREY: Thank you, Ms. Harrigfeld. 11 Do you have a question? Ms. Forster has a question. 12 MEMBER FORSTER: Mr. Steffani, when you were talking 13 about building the drain and short-term source control, what 14 do you mean by that? What technologies do you have in your 15 mind that explain what could be done with source control? 16 MR. STEFFANI: The only practical -- 17 MEMBER FORSTER: Just a minute. I want to be legal 18 here. 19 C.O. CAFFREY: Was that within the scope of redirect? 20 MS. HARRIGFELD: Yes, it was. 21 C.O. CAFFREY: Go ahead. Very good. 22 MEMBER FORSTER: I heard it. Thank you. 23 C.O. CAFFREY: Your ears are very good, Ms. Forster, 24 well focused. 25 MR. STEFFANI: It's my understanding that there is a CAPITOL REPORTERS (916) 923-5447 7192 1 lot of testing going on now: recycling drain water, tile 2 drain water and using it for salt-resistant vegetation of 3 some sort. There is also evaporation ponds with mechanisms 4 to keep the birds away and concentrate the brine. And I 5 don't know what you do with the brine these days. There is 6 still that problem. 7 These are all very difficult. In my mind, it would be 8 a lot better to get started on a drain then to sink more 9 money into so-called short-term solutions. If we really got 10 serious about a drain and everybody got behind it, we could 11 do it. 12 It is my understanding that we are not talking about an 13 awfully large quantity of water. It is not an impossible 14 feat. It's an engineering feat that has been done a number 15 of times around the world. We can do it. But we have to 16 set our minds to it, and we can all get behind it. 17 C.O. CAFFREY: Mr. Del Piero. 18 MEMBER DEL PIERO: Mr. Steffani, during the course of 19 your discussions in regards to the drain, have any 20 representatives from the coastal counties ever been invited 21 to participate? 22 MR. STEFFANI: We haven't had any formal 23 dissertations. I am talking about an off-shore, an outfall 24 that would have to go way out beyond the coast. I don't 25 know how many miles we would have to go out. We would have CAPITOL REPORTERS (916) 923-5447 7193 1 to diffuse. 2 MEMBER DEL PIERO: I am very familiar, Mr. Steffani, 3 with the concept. The question I have, I have heard it 4 repeatedly. Do you know if that conversation or efforts to 5 engage in that conversation has ever taken place with any 6 representatives of the local governments that would be 7 impacted by that proposal? 8 MR. STEFFANI: I don't know of any efforts. But we 9 ought to make those efforts. We ought to start talking to 10 those people. 11 MEMBER DEL PIERO: Thank you. 12 C.O. CAFFREY: Thank you. 13 Let's ask, by a showing of hands, if any of the parties 14 wish to cross-examine on redirect? 15 Ms. Cahill, Mr. Minasian, Mr. Birmingham, Mr. Gallery, 16 Mr. Sexton. 17 Anybody else? 18 I have Ms. Cahill, Mr. Minasian, Mr. Birmingham, Mr. 19 Gallery and Mr. Sexton. 20 Ms. Cahill. 21 ---oOo--- 22 RECROSS-EXAMINATION OF STOCKTON EAST WATER DISTRICT 23 BY THE CITY OF STOCKTON 24 BY MS. CAHILL 25 MS. CAHILL: Morning, Mr. Steffani. CAPITOL REPORTERS (916) 923-5447 7194 1 Basically, Ms. Harrigfeld just asked you questions 2 regarding the City's efforts to recycle water or their 3 studies of that would be better posed to the City's 4 representatives? 5 MR. STEFFANI: Yes. 6 MS. CAHILL: Is that because, in fact, the City's 7 representatives, such as Morris Allen, would be more 8 knowledgeable about the City's studies and results? 9 MR. STEFFANI: Absolutely, yes. 10 MS. CAHILL: One of the questions that was somewhat 11 related to wastewater that was posed to you was related to 12 the chloride levels and then the ultimate wastewater, TDS? 13 MR. STEFFANI: The TDS levels. 14 MS. CAHILL: Isn't it true that TDS is not entirely 15 chlorides? 16 MR. STEFFANI: That's correct. 17 MS. CAHILL: That it's a bit of apples and oranges? 18 MR. STEFFANI: It's whatever is dissolved. 19 MS. CAHILL: Thank you very much. 20 C.O. CAFFREY: Thank you, Ms. Cahill. 21 Mr. Minasian. 22 ---oOo--- 23 // 24 // 25 // CAPITOL REPORTERS (916) 923-5447 7195 1 RECROSS-EXAMINATION OF STOCKTON EAST WATER DISTRICT 2 BY THE EXCHANGE CONTRACTORS 3 BY MR. MINASIAN 4 MR. MINASIAN: Mr. Steffani, let me try to make this 5 brief. The question that you answered in regard to 6 wastewater reuse, the City of Stockton, in fact, 7 commissioned the study from Corollo & Associates in regard 8 to the sizing of facilities, the cost of those facilities 9 and the location of facilities to bring the wastewater into 10 your service area, did it not? 11 MR. STEFFANI: Yeah. Corollo did a study. 12 MR. MINASIAN: The study proposed that the water 13 be distributed for direct recharge or for use to the extent 14 that it could be used upon crops not subject to Public 15 Health Department restrictions? 16 MR. STEFFANI: There were a number of alternatives in 17 the Corollo report. 18 MR. MINASIAN: Could you describe to the Board what 19 happened when the report was unveiled and presented to the 20 farmers within the Stockton East Water District. 21 MR. STEFFANI: I think -- I presume you are talking 22 about the one alternative that would take the reclaimed 23 water and bring it into the Linden area for recharge? 24 MR. MINASIAN: Yes. 25 MR. STEFFANI: Yes. There was strong opposition to CAPITOL REPORTERS (916) 923-5447 7196 1 that, primarily because of the 700 part per million TDS 2 problem. 3 MR. MINASIAN: Were you present at those hearings? 4 MR. STEFFANI: I was present at the Stockton East Board 5 meeting when the Board took its position. 6 MR. MINASIAN: The position of the Stockton East Water 7 District was opposed? 8 MR. STEFFANI: Opposed, yes. 9 MR. MINASIAN: We do understand that the wastewater 10 would be diluted, either directly by surface flows within 11 the east side streams that flow into Stockton East or 12 diluted by the natural recharge to the aquifer? 13 MR. STEFFANI: Their plan wasn't detailed. We don't 14 know how they were intending to use that water for 15 recharge. There was no suggestion that there would be 16 dilution. 17 MR. MINASIAN: So I make sure that I understand and the 18 Board understands this distribution system, you bring the 19 New Melones water into the area now through a high-line 20 canal that is at an elevation above most of the farm land 21 that proceeds in a southerly fashion; is that correct? 22 MR. STEFFANI: Yes. 23 MR. MINASIAN: And you dump the water at various points 24 in the natural streams which flow towards the urban areas of 25 Stockton; is that correct? CAPITOL REPORTERS (916) 923-5447 7197 1 MR. STEFFANI: We discharge into Shirley Creek which 2 then turns into Hood Creek, which then turns into Rock 3 Creek, which then dumps into our lower Farmington Canal. 4 MR. MINASIAN: In those creeks your district has 5 installed a number of weirs to basically back up the water 6 and encourage recharge, have you not? 7 MR. STEFFANI: Not in those three creeks, no. We have 8 irrigation dams in the natural streams within Stockton East 9 that back up the water and help recharge. 10 MR. MINASIAN: The process is basically to bring this 11 foreign water source in, to convey it through miles of a 12 natural channel which naturally recharge the aquifer and 13 then bring it into subchannels and manmade ditches within 14 the Stockton East Water District? 15 MR. STEFFANI: Correct. 16 MR. MINASIAN: The problem with distribution of that 17 water is that many of your farmers are attuned to using 18 their wells, and they have distribution systems, pipelines 19 or ditches, which are not headed at the low point of their 20 property, which tends to be the creek beds. 21 MR. STEFFANI: Right. 22 MR. MINASIAN: When your Board, and I mean this, your 23 Board made the decision to go forward with this project, 24 they knew all those things, didn't they? 25 MR. STEFFANI: Yes. CAPITOL REPORTERS (916) 923-5447 7198 1 MR. MINASIAN: They also knew the hydrology of natural 2 inflow to New Melones? 3 MR. STEFFANI: Yes. 4 MR. MINASIAN: You know that today to be a very flashy 5 stream; it flows a lot of water sometimes and very little 6 water other times. 7 MS. STEFFANI: That's right. 8 MR. MINASIAN: Much more flashy than Northern 9 California streams? 10 MR. STEFFANI: Yes. 11 MR. MINASIAN: You knew that New Melones has a demand 12 of 600,000 for Oakdale and South San Joaquin, and there has 13 been testimony that the average inflow is about a million 14 acre-feet? 15 MR. STEFFANI: Yes. 16 MR. MINASIAN: In addition to having interim water 17 supply that would disappear over time with demands, there is 18 the flashy nature of the Stanislaus River which your 19 seven-member Board took a risk of; is there not? 20 MR. STEFFANI: Yes. 21 MR. MINASIAN: So what has changed in regard to the 22 flashy nature of the Stanislaus River and the unreliability 23 of this water supply from a hydrologic point of view? 24 MR. STEFFANI: Well, the only thing that has changed is 25 that the CVPIA and the way the Bureau is operating New CAPITOL REPORTERS (916) 923-5447 7199 1 Melones. 2 MR. MINASIAN: The flood control reservation is still 3 around 800,000 acre-feet; is that right? 4 MR. STEFFANI: No. It's about 400,000, a difference 5 between 1,970,000 and 2.3 million. 6 MR. MINASIAN: You are telling us that the Bureau is 7 actually operating it with a 500,000 acre-foot flood 8 reservation? 9 MR. STEFFANI: Whatever the difference is between 10 1,970,000 and the 2.3 million. 11 MR. MINASIAN: So, that is improvement over the 12 alternative in which it was operating within an 800,000 13 acre-feet reservation? 14 MR. STEFFANI: I never heard of the 800,000 acre-foot 15 reservation. 16 MR. MINASIAN: You used the figure of 170,000 acre-feet 17 of water supplied by Stockton East Water District to ag. 18 That figure includes the private wells of the landowners, 19 does it not? 20 MR. STEFFANI: Yes. That is surface pad groundwater, 21 yes. 22 MR. MINASIAN: Your district in regard to the private 23 wells, basically, simply monitors the amount of water that 24 is taken out of the wells? 25 MR. STEFFANI: Correct. CAPITOL REPORTERS (916) 923-5447 7200 1 MR. MINASIAN: You do not have regulatory functions to 2 limit the amount of water? 3 MR. STEFFANI: That's correct. 4 MR. MINASIAN: Could you give us a typical applied 5 water figure for a walnut orchard? 6 MS. HARRIGFELD: I have to object to this. I didn't 7 ask any questions pertaining to that on my redirect. 8 MR. MINASIAN: I think that is correct. Let me 9 withdraw that. 10 C.O. CAFFREY: I think a little far afield. 11 Thank you for your ruling, Mr. Minasian. 12 Mr. Sexton. 13 MR. SEXTON: May I be heard on that? 14 On redirect the witness was asked about long-term 15 versus short-term actions, and he mentioned source control 16 as one of those actions. I think if he is talking about 17 source control in one area, then source control in his area 18 is also fair game. Applied water question goes directly to 19 source control. 20 C.O. CAFFREY: Mr. Minasian, sounds like I am going to 21 give you an answer to your question. 22 MS. HARRIGFELD: He withdrew the question. 23 MR. MINASIAN: I think Mr. Sexton is going to follow up 24 on that area. I was sitting down because I promised to be 25 short. CAPITOL REPORTERS (916) 923-5447 7201 1 C.O. CAFFREY: I should have known. 2 Thank you, sir. 3 MEMBER DEL PIERO: Mr. Chairman, I am waiting with 4 baited breath to find out about the applied water use for a 5 walnut orchard. 6 C.O. CAFFREY: Mr. Birmingham, sir, you are on. 7 ---oOo--- 8 RECROSS-EXAMINATION OF STOCKTON EAST WATER DISTRICT 9 BY THE WESTLANDS WATER DISTRICT 10 BY MR. BIRMINGHAM 11 MR. BIRMINGHAM: Mr. Steffani, in the beginning of Ms. 12 Harrigfeld's redirect of you she asked you questions in 13 response to which you said that you thought it would be a 14 good idea to establish water quality objectives upstream of 15 Vernalis, and you indicated that they should be established 16 for the mouth of the Merced? 17 MR. STEFFANI: Slightly above the mouth of the Merced, 18 yes. 19 MR. BIRMINGHAM: The reason that you support the 20 establishment of those water quality objectives upstream of 21 the mouth of the Merced is to reduce the degree to which New 22 Melones is responsible for meeting water quality objectives 23 in the Lower San Joaquin? 24 MR. STEFFANI: Yes. And it would distribute the burden 25 more fairly. CAPITOL REPORTERS (916) 923-5447 7202 1 MR. BIRMINGHAM: We have heard testimony from others 2 that establishing those water quality objectives upstream of 3 the mouth of the Merced would improve water quality for 4 beneficial uses of water between the confluence of the 5 Merced and the San Joaquin and the confluence of the 6 Stanislaus and the San Joaquin. 7 Have you been present for some of that testimony? 8 MR. STEFFANI: No, I don't think I heard that, but it 9 certainly would make sense. 10 MR. BIRMINGHAM: The entities which rely on water 11 diverted from the San Joaquin upstream of the confluence of 12 the Stanislaus and San Joaquin haven't appeared here to 13 object to water quality impairing their use for water, have 14 they? 15 MR. STEFFANI: I don't know. 16 MR. BIRMINGHAM: One last question. In response to 17 some questions which I posed to you, you indicated that 18 Congress had authorized up to 70,000 acre-feet of water from 19 New Melones to be used for water quality in the Lower San 20 Joaquin? 21 MR. STEFFANI: It is my understanding that Congress 22 realized that there would be some kind of water quality 23 burden placed on New Melones, and that the 70,000 acre-foot 24 number is the number that was discussed continually. 25 MR. BIRMINGHAM: But Congress never limited the amount CAPITOL REPORTERS (916) 923-5447 7203 1 of water that could be used from New Melones for water 2 quality objectives? 3 MR. STEFFANI: Okay. Now that you're heading in this 4 direction, let's finish it out. 5 MR. BIRMINGHAM: Before you explain, can you answer my 6 question? Did Congress ever limit the amount of water from 7 New Melones that could be used for water quality, to meet 8 water quality objectives? 9 MR. STEFFANI: I don't know. Now do I get my turn? 10 C.O. CAFFREY: As long as it is relevant. 11 MR. STEFFANI: It is. 12 C.O. CAFFREY: I don't want to turn it into an 13 opportunity to give numerous policy statements. 14 MR. STEFFANI: The assumption that an unlimited amount 15 of New Melones water can be used for purposes of dilution 16 flies in the face of our Constitution, our State 17 Constitution, that says water must be put to best and 18 highest use. It's insane. 19 If you follow that to its ultimate limit, you could 20 argue, "Let's use all New Melones water to dilute what is 21 coming down the San Joaquin River." 22 Where do you stop? 23 MR. BIRMINGHAM: I have no further questions. 24 C.O. CAFFREY: Thank you, Mr. Birmingham. 25 Mr. Gallery. CAPITOL REPORTERS (916) 923-5447 7204 1 MR. GALLERY: Thank you, Mr. Chairman. 2 ---oOo--- 3 RECROSS-EXAMINATION OF STOCKTON EAST WATER DISTRICT 4 BY TUOLUMNE UTILITIES DISTRICT 5 BY MR. GALLERY 6 MR. GALLERY: Mr. Steffani, you testified in response 7 to Ms. Harrigfeld's questions that your district had sold 8 your bonds to construct your system in reliance on Bureau 9 documents? 10 MR. STEFFANI: Yes. 11 MR. GALLERY: Is that correct? 12 I am handing you a copy of Tuolumne Utilities District 13 Number 9, which is the "Special Report on Basin Alternatives 14 and Water Allocations," are you familiar with that? 15 MR. STEFFANI: Yes, I am. 16 MR. GALLERY: Is that one of the Bureau documents that 17 you referred to? 18 MR. STEFFANI: Yes, it is. 19 MR. GALLERY: Is it true that this document was a 20 document that the Secretary of the Interior directed so that 21 he could determine what the basin could consist of? 22 MR. STEFFANI: Yes. That's right. 23 MR. GALLERY: Also the document was undertaken to 24 determine what the needs would be within that basin; is that 25 correct? CAPITOL REPORTERS (916) 923-5447 7205 1 MR. STEFFANI: Yes. 2 MR. GALLERY: So you then determine what amount of 3 water would be available outside the basin; is that correct? 4 MR. STEFFANI: Yes. 5 MR. GALLERY: I would like to direct your attention to 6 Page 97 in that document. 7 Does Page 97 contain Table 12, entitled "Basin Two 8 Water Requirements Which Can Be Served From New Melones 9 Reservoir"? 10 MR. STEFFANI: Yes. 11 MR. GALLERY: Does that page represent what the Bureau 12 determined would be the water requirement within the basin 13 that could be served from New Melones Reservoir? 14 MR. STEFFANI: Yes. For the years 2000 and 2020. 15 MR. GALLERY: Then if you look at the bottom half of 16 that table, do we see in year 2020 it lists the needs that 17 were estimated for Calaveras County of 13.8, 13,800 feet? 18 MR. STEFFANI: Yes. 19 MR. GALLERY: Tuolumne County, 9,000 acre-feet? 20 MR. STEFFANI: Yes. 21 MR. GALLERY: Stanislaus and the Farmington and 22 Cooperstown areas, 79,000 acre-feet? 23 MR. STEFFANI: Yes. 24 MR. GALLERY: For San Joaquin County, 22,600? 25 MR. STEFFANI: Yes. CAPITOL REPORTERS (916) 923-5447 7206 1 MR. GALLERY: That total -- the Bureau then totaled 2 that amount of 124,800 and added 5 percent losses and came 3 up with 131,000 acre-feet? 4 MR. STEFFANI: Yes. 5 MR. GALLERY: 131,000 represented what the Bureau 6 estimated that the 2020 needs would be within the total 7 Stanislaus River Basin that was defined in this report; is 8 that correct? 9 MR. STEFFANI: Yes, it is. 10 MR. GALLERY: In that same report the Bureau estimated 11 that the long-term yield of the New Melones Project would be 12 180,000 acre-feet per year? 13 MR. STEFFANI: 180,000 acre-feet in the year 2020, yes. 14 MR. GALLERY: And if you subtract 131,000 from the 15 180,000, you get 49,000 acre-feet? 16 MR. STEFFANI: Yes. 17 MR. GALLERY: 49,000 acre-feet was what was contracted 18 to Central San Joaquin on a firm basis? 19 MR. STEFFANI: Yes. 20 MR. GALLERY: The remainder of that water that the 21 basin would ultimately need was contracted to Central San 22 Joaquin in part and to your district in part? 23 MR. STEFFANI: Yes. 24 MR. GALLERY: So that what Stockton East was relying on 25 when it entered into the contract and built its project was CAPITOL REPORTERS (916) 923-5447 7207 1 that these in-basin needs would be a long-time developing; 2 is that correct? 3 MR. STEFFANI: Correct. 4 MR. GALLERY: You were asked the question of what has 5 developed within the basin, and could you go down the list 6 of 2020 -- well, even go down the 2020 list and tell us what 7 has developed, what needs have developed in those four 8 counties to date. 9 MR. STEFFANI: To my knowledge, there is no one using 10 New Melones water except for, perhaps, your agency. You may 11 be using a small amount. 12 MR. GALLERY: My agency is trying to use a small 13 amount. 14 MR. STEFFANI: You convinced me. 15 MR. GALLERY: But that Calaveras County has gone ahead 16 and developed its own North Fork Stanislaus project and is 17 using no New Melones water; is that correct? 18 MR. STEFFANI: That's correct. 19 MR. GALLERY: And Stanislaus County, the areas 20 designated as Farmington and Cooperstown, and I believe you 21 indicated that they had no development taken place there 22 that has put a demand on it? 23 MR. STEFFANI: That is correct. 24 MR. GALLERY: As of today, if it had not been for the 25 CVPIA, your district would be able to be getting just about CAPITOL REPORTERS (916) 923-5447 7208 1 its full allocation; isn't that correct? 2 MR. STEFFANI: Yes. We would get our full allocation. 3 MR. GALLERY: So that it's the in-basin needs which 4 were set aside and preserved for future use simply haven't 5 developed to an extent except for, perhaps, my little 6 district; is that correct? 7 MR. STEFFANI: That is correct. 8 MR. GALLERY: But because of the advent of the CVPIA 9 and the increasing needs for Delta salinity, you're in a 10 position of getting water not in all years but in how many 11 years under the Interim Plan of Operation? 12 MR. CAMPBELL: Objection. This question is beyond the 13 scope of redirect. 14 C.O. CAFFREY: Ms. Harrigfeld, do you agree that the 15 question is beyond the scope of the redirect? 16 MS. HARRIGFELD: There were some -- Mr. Steffani 17 responded to a question of mine and discussed dilution 18 flows. I am not sure it's outside the scope, and we did 19 discuss in-basin development. 20 MR. GALLERY: I think there were some questions and 21 answers on the interim supply, Mr. Chairman. 22 C.O. CAFFREY: I will allow Mr. Steffani to answer the 23 question. 24 Go ahead, Mr. Steffani. 25 MR. STEFFANI: The interim -- the so-called, 12-year CAPITOL REPORTERS (916) 923-5447 7209 1 Interim Operating Plan that I think you are familiar with 2 has Stockton East and Central getting from 0 in dry years to 3 90,000 acre-feet in wet years, with an average of a little 4 better than 40,000 acre-feet per year. But, of course, that 5 depends on an estimated hydrologic condition. So, if we go 6 into 12 wet years, we get water every year. If we go into 7 12 dry years, we get zero water. 8 MR. GALLERY: In the Interim Plan the exhibit the 9 Bureau attached indicates that out of the 71-year study 10 period there would be no water for your use in how many 11 years? 12 MR. STEFFANI: I have forgotten, Dan. 13 MR. GALLERY: It is approximately 40 percent of the 14 years? Does that sound about right? 15 MR. STEFFANI: It's a little less than half. Probably 16 close. 17 MR. GALLERY: You get no water? 18 MR. STEFFANI: No water. 19 MR. GALLERY: The impact of the CVPIA on the other 20 contractors, Mr. Birmingham indicated that they -- 21 MR. BIRMINGHAM: Objection. 22 MR. CAMPBELL: Objection. This is beyond the scope of 23 redirect. Ms. Harrigfeld had a very short redirect. She 24 covered three areas: recyclable wastewater to recharge the 25 ground basin. This question does not go there. She covered CAPITOL REPORTERS (916) 923-5447 7210 1 building a drain. This question does not go to that. She 2 covered long-term water project planning. This question 3 does not go to that. 4 That's it. 5 C.O. CAFFREY: Thank you, Mr. Campbell. 6 Mr. Birmingham. 7 MR. BIRMINGHAM: The question I asked of this witness 8 concerning the impacts of CVPIA on other contractors were 9 asked during my cross-examination of the witness, not my 10 recross. I think this goes beyond the scope. 11 C.O. CAFFREY: Thank you, Mr. Birmingham. 12 I am going to sustain Mr. Campbell's objection. I 13 think you have gone outside the scope of the redirect, Mr. 14 Gallery, not necessarily the -- 15 MR. GALLERY: I just wanted to make a shot out of it, 16 anyway. 17 C.O. CAFFREY: Very good try, Mr. Gallery. Thank you, 18 sir. 19 Let's see. Maybe we ought to break now, unless, Mr. 20 Sexton, you have just a very short questioning period. We 21 can break now or -- 22 MR. SEXTON: Mine will be very short, Mr. Chairman. 23 C.O. CAFFREY: Why don't we get started and see where 24 it takes us. 25 MR. SEXTON: Depending on your ruling, it might even be CAPITOL REPORTERS (916) 923-5447 7211 1 shorter. 2 C.O. CAFFREY: Are you anticipating an objection? 3 ---oOo--- 4 RECROSS-EXAMINATION OF STOCKTON EAST WATER DISTRICT 5 BY THE SAN LUIS AND DELTA-MENDOTA WATER AUTHORITY 6 BY MR. SEXTON 7 MR. SEXTON: I'd just like to follow up with the 8 witness on the question that Mr. Minasian asked regarding 9 the ET of walnuts and cherries in your service area. 10 MS. HARRIGFELD: Once again, I would reassert the 11 objection that we didn't go into that on my redirect. 12 C.O. CAFFREY: Mr. Minasian. 13 MR. MINASIAN: I will do the same sort of grilling that 14 Mr. Nomellini did, which is on base the subject. The Board, 15 Mr. Stubchaer, asked the question. 16 MR. NOMELLINI: You will have to explain that to me. 17 MR. MINASIAN: The problem was that Ms. Harrigfeld is 18 correct; she didn't get into that. But Board Member 19 Stubchaer, I believe, asked the question about the 20 consumptive use versus the applied water use. 21 Normally when we are in a court of law, we are used to 22 being able to redirect after a judge's question. So my 23 problem was I thought that I should follow up on what Vice 24 Chairman Stubchaer had asked. So I believe it to be within 25 the scope of redirect as we understand it. CAPITOL REPORTERS (916) 923-5447 7212 1 C.O. CAFFREY: Ms. Leidigh, can you give us an opinion, 2 some guidance? I know we are not in a court of law, and 3 perhaps that is a blessing for all of us, maybe not. I 4 don't know. 5 MS. LEIDIGH: The fact that we are not, in fact, in a 6 court of law gives the Board a little more discretion than a 7 judge might have. So, my advice is that the Board has 8 discretion to disallow the question, if it wishes to, or to 9 hear it, if it wishes to. 10 C.O. CAFFREY: I don't want to -- with great respect 11 for Ms. Harrigfeld, I think if there -- I think there is 12 interest on the part of the Board Members to hear the answer. 13 MEMBER FORSTER: Yes. 14 C.O. CAFFREY: That doesn't mean we get to hear it. 15 I am going to -- 16 MEMBER DEL PIERO: Your decision, Mr. Chairman. 17 C.O. CAFFREY: With the hope of not deviating too much 18 from what we have been -- the procedures that we have been 19 following, I am going to allow the answer. 20 MEMBER DEL PIERO: We aren't going to get into pit 21 fruit? 22 C.O. CAFFREY: No. We are stopping with walnuts. 23 Go ahead. 24 MR. STEFFANI: You asked for the ET? 25 MR. SEXTON: Yes, I did. CAPITOL REPORTERS (916) 923-5447 7213 1 MR. STEFFANI: Someone else for applied? You want ET? 2 MR. SEXTON: I would like the ET. 3 MR. STEFFANI: ET for walnuts in our area are about 2.8 4 acre-feet per year. 5 MR. SEXTON: For cherries? 6 MR. STEFFANI: About the same. 7 MR. SEXTON: Your testimony in response to a question 8 by Vice Chair Stubchaer, Vice Chairman Stubchaer, was that 9 you applied approximately two times the ET in order to get 10 recharge benefits? 11 MR. STEFFANI: Where we are irrigating with surface 12 water, we encourage the flood irrigation. So in that case, 13 the applied water would be two times 2.8 or 5.6. 14 MR. SEXTON: 5.6 acre-feet an acre? 15 MR. STEFFANI: Yes. 16 MR. SEXTON: You mentioned in response to a question by 17 Ms. Harrigfeld concerning a drain that in the short run or 18 in the meantime, the short return would be before a drain 19 could be built, we needed to focus on other matters such as 20 source control. 21 Do you recall that answer? 22 MR. STEFFANI: Yes. 23 MR. SEXTON: Were you here when the testimony of Mr. 24 McGahan was given regarding the Grassland Bypass Project? 25 MR. STEFFANI: No. CAPITOL REPORTERS (916) 923-5447 7214 1 MR. SEXTON: Are you familiar with the project? 2 MR. STEFFANI: Somewhat. I am not specifically. 3 MR. SEXTON: Are you familiar with the activities that 4 the members of that project exercise regarding source 5 control of applied irrigation water? 6 MR. STEFFANI: No, I am not. 7 MR. SEXTON: Do you know what the applied irrigation 8 water is nominally for crops grown on the west side of the 9 Central Valley? 10 MR. STEFFANI: I don't. 11 MR. SEXTON: Do you have an idea of whether the ET is 12 more or less than that for walnuts -- let me rephrase that. 13 Do you have an opinion on whether the applied ET for 14 crops grown on the west side of the Central Valley would be 15 more or less than that the two times ET that is applied on 16 your service area? 17 MR. STEFFANI: I don't. But ET is fairly constant. 18 It's the applied rate that varies tremendously because of 19 effective percip and other variables. So, over on the west 20 side there is very little effective precipitation, so you 21 have to apply more than we would apply on the east side. 22 MR. SEXTON: My question is getting to your comment 23 regarding source control. And since you don't have any 24 knowledge of the bypass project, I guess I will leave it at 25 that. CAPITOL REPORTERS (916) 923-5447 7215 1 I was going to ask you questions like: What more could 2 be done on the west side? I will leave it at that. 3 Thank you. 4 C.O. CAFFREY: Thank you, Mr. Sexton. 5 Why don't we take our break and then we will come back 6 with questions from staff and the Board. 7 (Break taken.) 8 C.O. CAFFREY: We are back on the record. 9 We have recross yet from Mr. Howard and Ms. Leidigh, if 10 they wish to. 11 Any questions from Mr. Howard or Ms. Leidigh? 12 MR. HOWARD: No questions. 13 C.O. CAFFREY: Anything else from the Board Members? 14 MEMBER BROWN: I have one. 15 C.O. CAFFREY: Mr. Brown. 16 ---oOo--- 17 RECROSS-EXAMINATION OF STOCKTON EAST WATER DISTRICT 18 BY BOARD MEMBERS 19 MEMBER BROWN: Mr. Steffani, what was the year the 20 contract, the interim contract, was made with the Bureau? 21 MR. STEFFANI: 1983, December of '83. 22 MEMBER BROWN: Was Central part of those discussions at 23 that time, or did they make their contract prior? 24 MR. STEFFANI: They executed the contract on the very 25 same day. CAPITOL REPORTERS (916) 923-5447 7216 1 MEMBER BROWN: Was there a reason that you know that 2 Stockton East did not try for part of that 49,000 acre-feet 3 or firm contract, or how did that come about, the 4 difference? 5 MR. STEFFANI: It is my understanding that during the 6 Secretary's deliberations of the basin, that both Stockton 7 East and Central attempted to be included in the basin, 8 first, which would have given them permanent water. Then 9 when the basin was finally set, and the Bureau determined 10 that the 49 should go to Central, Stockton East accepted the 11 Bureau's argument that Central should get the 49,000 because 12 Central was not in as good a position as Stockton East to 13 eventually get water from the American River. 14 MEMBER BROWN: Are both districts, both out of the 15 basin? 16 MR. STEFFANI: Both districts are out of the so-called 17 New Melones Basin, yes, outside. 18 MEMBER BROWN: So your answer is that you did not 19 qualify, or press might be a better word, for the 49,000 20 because of expectations of American River water? 21 MR. STEFFANI: Yes. 22 MEMBER BROWN: Thank you. 23 C.O. CAFFREY: Thank you, Mr. Brown. 24 Anything else from Board Members? 25 I believe that takes us to the virtual completion of CAPITOL REPORTERS (916) 923-5447 7217 1 your case in chief, Ms. Harrigfeld. Let's see, before I do 2 that, since we have been taking up the cross-examination 3 exhibits kind of as we have gone, let me deal with that 4 first for cross and recross exhibits. 5 I think, Mr. Minasian, did you have exhibits? 6 MR. MINASIAN: I have two exhibits. Exhibit 2, which 7 are selected pages from the Final Environmental Report. 8 Volume I, and Exhibit 3, which are copies of the study, 9 Brown & Caldwell Study. 10 C.O. CAFFREY: Do you wish to offer those into the 11 record now? 12 MR. MINASIAN: I do. 13 C.O. CAFFREY: Is there any objection to receiving into 14 the record Mr. Minasian's cross-examination exhibits? 15 Seeing and hearing no objection, they are accepted into 16 the record. 17 Were there any other exhibits that I have looked? 18 Mr. Birmingham. 19 MR. BIRMINGHAM: I believe that I had marked for 20 identification a couple of exhibits, but they may have been 21 admitted during the conclusion of cross-examination. I 22 wonder if I could inquire of Mr. Howard? 23 C.O. CAFFREY: Sure, let's do that. 24 MR. HOWARD: All right. What do you want to inquire? 25 C.O. CAFFREY: They want to establish if we will put CAPITOL REPORTERS (916) 923-5447 7218 1 them in there. 2 MR. BIRMINGHAM: Whether I have introduced any exhibits 3 during cross-examination of Stockton East witnesses that I 4 have not yet moved. 5 MR. HOWARD: Let's see what Vicky may have done. 6 MR. BIRMINGHAM: May I look over your shoulder? 7 MR. HOWARD: Yes. 8 MR. BIRMINGHAM: The only exhibit, Westlands 95, the 9 settlement agreement between the Department of the Interior 10 and Westlands Water District, was previously admitted. 11 At this time, Mr. Chairman, I would like to move for 12 the admission of Department of Interior Exhibits 4-A through 13 4-I, which I used during my cross-examination of Mr. Ploss. 14 C.O. CAFFREY: All right, sir. 15 Does that synchronize with your records, Mr. Howard? 16 I guess those are already identified exhibits; they are 17 not in the record yet. 18 MR. JACKSON: I am going to object to that. 19 C.O. CAFFREY: Mr. Jackson. 20 MR. JACKSON: I am going to object to that on the 21 grounds that what it does, it allows the exhibits to go in 22 without cross-examination. If they were limited to solely 23 what was used in regard to the cross-examination, that might 24 make some sense, but there are all kinds of things in those 25 documents that haven't been subject to cross-examination. CAPITOL REPORTERS (916) 923-5447 7219 1 MR. BIRMINGHAM: Actually, Mr. Chairman -- 2 C.O. CAFFREY: Mr. Birmingham. 3 MR. BIRMINGHAM: -- on the 18th, when I was not here, 4 apparently Mr. Sexton, anticipating my motion, moved them 5 into the evidence, and they were admitted on the 18th. 6 MR. JACKSON: I must have been asleep that day. 7 C.O. CAFFREY: I doubt that, Mr. Jackson. 8 That at least takes care of the matter at the moment. 9 I am sure that you will have ample opportunities in later 10 phases to deal with the exhibits. 11 Does that mean, Mr. Birmingham, that we still have one 12 that is not dealt with? 13 MS. LEIDIGH: I think that is all. 14 C.O. CAFFREY: Let's wait until they confer. 15 Then were Mr. Birmingham's exhibits already in the 16 record in their entirety; is that what we are dealing with 17 here? 18 MR. BIRMINGHAM: Yes, they are. 19 C.O. CAFFREY: Thank you, sir. 20 Then let's go to the exhibits for the case in chief, if 21 there are any, Ms. Harrigfeld. 22 MS. HARRIGFELD: There are a number that have been 23 introduced. 24 Mr. Howard, do you have that page? We can walk through 25 that. CAPITOL REPORTERS (916) 923-5447 7220 1 Stockton East Water District Exhibit Number 5, 7, 7-A, 2 9, 9-A, 10, 11, 11-A, 12, 12-A, 12-B, 15, 16, 17, 18, 18-A, 3 19, 19-A, 19-B, 20, 20-A, 21, 21-A, 22, 27, 28, 29, 30, 31, 4 32, 33, 34, 35, 36, 37, 38 and 39. And Stockton East Water 5 District Exhibits 38 and 39 were two exhibits that I 6 redirected Mr. Ploss on, and we will be mailing a revised 7 exhibit list and those two exhibits to all the parties. 8 C.O. CAFFREY: Thank you. 9 I will get you in a second, Mr. Gallery. Hold your 10 thought. I just want to check with Mr. Howard, when he is 11 ready to see if we are synchronized on numbers? 12 MR. HOWARD: Those were all introduced exhibits. 13 C.O. CAFFREY: Thank you, Mr. Howard. 14 Mr. Gallery. 15 MR. GALLERY: Can Ms. Harrigfeld tell us which exhibits 16 she omitted, did not offer on the list? 17 MS. HARRIGFELD: Certainly: 8, 13, 14, 23, 24, 25 and 18 26. 19 MR. GALLERY: Thank you. 20 C.O. CAFFREY: Thank you, Mr. Gallery. 21 Based on that enumeration, the lengthy list of 22 exhibits, is there any objection from any of the parties to 23 receiving the exhibits into the record? 24 Seeing and hearing no objection, they are accepted into 25 the record. CAPITOL REPORTERS (916) 923-5447 7221 1 Thank you very much, Ms. Harrigfeld. 2 Thank you, Mr. Steffani. 3 That completes your case in chief. That completes the 4 cases in chief, first round for Phase V. I was thinking 5 that it might be a good idea to have a little discussion 6 right now. I know Mr. O'Laughlin is not here. He seemed to 7 be offering to take the lead on any discussion that might 8 occur among the parties as to how many rebuttal cases are 9 going to be offered and in what order they might be 10 offered. 11 Has there been any? Any spokesperson in the audience 12 that might speak to that issue? 13 Mr. Minasian. 14 MR. MINASIAN: Mr. Birmingham and Mr. Johnson are going 15 to put on testimony today. DWR, Mike Ford, will start first 16 thing on Tuesday morning. 17 They will be followed by, as I understand it, hopefully 18 not presumptively, Dr. Deverel and Mr. White, which will be 19 the Exchange Contractors rebuttal witnesses. 20 From that point on I believe Mr. Herrick and Mr. 21 Nomellini and other parties are trying to decide whether 22 they will have rebuttal, and Jim Turner, on behalf of the 23 Bureau, is also trying to decide. There may be somebody 24 else. 25 C.O. CAFFREY: Thank you, Mr. Minasian. CAPITOL REPORTERS (916) 923-5447 7222 1 Let me just see if that is agreeable to the parties 2 that are still determining the order they want to go in or 3 whether or not they are going to have a rebuttal case. 4 Mr. Herrick, sir? 5 MR. HERRICK: That is certainly okay with South Delta. 6 We will have three witnesses. The direct of those three 7 witnesses can't be more than an hour or two at the most. 8 But we are fairly flexible as to when. 9 C.O. CAFFREY: Thank you, sir. 10 Mr. Nomellini. 11 MR. NOMELLINI: Central Delta is going to coordinate 12 with Mr. Herrick. If South Delta's rebuttal case covers the 13 area we want to cover, then we will not present one 14 separately. We'll try to sort that out before we hold 15 things up in this process. 16 C.O. CAFFREY: I am sorry. Mr. Sexton and then Mr. 17 Godwin. 18 Mr. Sexton. 19 MR. SEXTON: I haven't yet decided whether I will put 20 Mr. McGahan on back for some rebuttal for San Luis 21 Delta-Mendota Water Authority, but I would like to reserve a 22 place in line if I choose to do so. 23 C.O. CAFFREY: Certainly we will do that. 24 Mr. Godwin. 25 MR. GODWIN: For the San Joaquin River Group, I just CAPITOL REPORTERS (916) 923-5447 7223 1 want to add that the San Joaquin River Group has already 2 submitted rebuttal testimony and requested that the Board 3 take judicial notice of the exhibits. Copies were mailed to 4 all the parties as well. So, we wouldn't be putting on an 5 actual witness. 6 C.O. CAFFREY: I'm sorry, I didn't hear the very last 7 thing you said. 8 MR. GODWIN: I said we wouldn't be putting on an actual 9 witness. 10 MS. LEIDIGH: Are you planning to make a motion at some 11 point during rebuttal? 12 MR. GODWIN: Yes. 13 MS. LEIDIGH: But you haven't done it yet? 14 MR. GODWIN: No. 15 C.O. CAFFREY: Thank you, Ms. Leidigh. 16 Mr. Turner. 17 MR. TURNER: With respect to the Department of the 18 Interior, at this stage we would be proposing to present 19 rebuttal testimony. The time frame is pretty much open. We 20 will work with the other parties. I understand next Tuesday 21 would not work. Probably any day thereafter would work fine 22 for us, and we will coordinate with the other parties. 23 C.O. CAFFREY: Thank you, Mr. Turner. 24 Mr. Campbell. 25 MR. CAMPBELL: Department of Fish and Game is still CAPITOL REPORTERS (916) 923-5447 7224 1 considering whether to put on rebuttal evidence. It is 2 unlikely it will do so, but we haven't made a determination. 3 It shall be made shortly. 4 C.O. CAFFREY: The reason I raise the question is 5 because if there is agreement among all the parties without 6 objection to some particular order for presentation of 7 rebuttal cases, that is perfectly agreeable with us. 8 So let me ask specifically if there is any objection 9 out there to at least the beginning order that Mr. Minasian 10 has described. 11 Seeing and hearing no objection, then thank you all 12 very much. 13 We will proceed with Mr. Birmingham's rebuttal case. 14 MS. HARRIGFELD: I have one point of clarification in 15 reviewing my exhibit list. 16 C.O. CAFFREY: Yes, sure. 17 MS. HARRIGFELD: Stockton East Water District Exhibit 18 Number 4 is the contract between United States and the 19 Bureau of Reclamation, and I would like that exhibit to be 20 admitted as well. 21 C.O. CAFFREY: In addition, that is one that you -- 22 so, it is Exhibit Number 4? 23 MS. HARRIGFELD: Exhibit Number 4. 24 C.O. CAFFREY: Let's check here for a moment and then 25 we'll -- CAPITOL REPORTERS (916) 923-5447 7225 1 MS. HARRIGFELD: We could have inaccurately referred to 2 it as Exhibit Number 7. I know Mr. Birmingham had several 3 questions on it. 4 MR. BIRMINGHAM: I did ask Mr. Steffani a number of 5 questions about the contract. I would move for its 6 admission. 7 C.O. CAFFREY: Thank you, sir. 8 Is there any objection to the accepting of Stockton 9 East's Exhibit Number 4 into the record? 10 Seeing and hearing no objection, it is accepted. 11 Thank you, Ms. Harrigfeld. 12 Thank you, Mr. Birmingham. 13 MR. BIRMINGHAM: Westlands Water District would like 14 to call William R. Johnston. 15 C.O. CAFFREY: Mr. Johnston I believe you have been 16 sworn in. 17 MR. JOHNSTON: I have. 18 C.O. CAFFREY: Is that correct? 19 MR. JOHNSTON: Yes, that is correct. 20 C.O. CAFFREY: Mr. Birmingham, if I may, if you will 21 indulge me for a moment, I would like to make a brief 22 reminder to everyone. 23 To the extent that it is possible for you, it helps the 24 Board Members in remembering the context of things, since we 25 have had such a long proceeding so far, that if you can give CAPITOL REPORTERS (916) 923-5447 7226 1 us a reference as to the area of questioning that you are 2 going into with your rebuttal. Obviously, rebuttal is wide 3 open to direct, cross, redirect and recross, the whole 4 spectrum. But if you can give us a reminder and the witness 5 where you are and what you are referencing with your 6 questions, it would help us, if that is possible. 7 Thank you, sir. 8 ---oOo--- 9 REBUTTAL TESTIMONY OF WESTLANDS WATER DISTRICT 10 DIRECT EXAMINATION OF WILLIAM R. JOHNSTON 11 BY MR. BIRMINGHAM 12 MR. BIRMINGHAM: Mr. Johnston, are you a professional 13 engineer? 14 MR. JOHNSTON: Yes, I am. 15 MR. BIRMINGHAM: In what field are you registered? 16 MR. JOHNSTON: Agricultural engineer. 17 MR. BIRMINGHAM: You have a Bachelor's of Science 18 degree in agricultural engineering? 19 MR. JOHNSTON: Yes, I do. 20 MR. BIRMINGHAM: You have a Master of Science degree in 21 irrigation sciences? 22 MR. JOHNSTON: That's correct. 23 MR. BIRMINGHAM: From where did you obtain your 24 Bachelor of Sciences degree? 25 MR. JOHNSTON: Oregon State University. CAPITOL REPORTERS (916) 923-5447 7227 1 MR. BIRMINGHAM: From where did you obtain your 2 Master's Degree? 3 MR. JOHNSTON: University of California at Davis. 4 MR. BIRMINGHAM: Mr. Johnston, Ms. Thomas is handing to 5 you a document that has previously been introduced into 6 evidence as Westlands Exhibit 5. 7 Do you recognize Westlands Exhibit 5 as a copy of your 8 resume? 9 MR. JOHNSTON: Yes, I do. 10 MR. BIRMINGHAM: Mr. Johnston, how long have you been 11 working on irrigation and drainage problems on the west side 12 of the San Joaquin Valley? 13 MR. JOHNSTON: Almost 40 years. 14 MR. BIRMINGHAM: Would you briefly describe your 15 experience working on irrigation and drainage issues on the 16 west side of the San Joaquin Valley over the course of the 17 last 40 years. 18 MR. JOHNSTON: Yes. Between 1959 and 1964 I conducted 19 research for the University of California at Los Angeles on 20 the performance of subsurface drainage systems on the west 21 side of the San Joaquin Valley. Most of the systems that I 22 analyzed were in what is known now as the Grasslands Bypass 23 Project service area. 24 Then between 1965 and 1975, I worked for Westlands 25 Water District as their drainage engineer and supervisor of CAPITOL REPORTERS (916) 923-5447 7228 1 water management. During that time, I was involved with the 2 design, layout and construction activities for Westlands in 3 regard to their drainage collector system and the start of 4 the distribution of water within the district. 5 In 1975 and 1976, I served as the Director of San 6 Joaquin Valley Interagency Drainage Program, in which I 7 reported to the Chairman of this State Board, to the 8 Director of the Department of Water Resources and Regional 9 Director of the Bureau of Reclamation. That program was 10 designed to come up for a long-term solution for the saline 11 drainage water problem on the west side of the San Joaquin 12 Valley. 13 In 1976, I returned to Westlands Water District as 14 Assistant General Manager, where I was in charge of most of 15 the day-to-day operations of the district, including the 16 operation and maintenance of the distribution and drainage 17 system. I was directly involved in the decommissioning of 18 the drainage system in 1986. 19 Then, in 1987, I started my own consulting business; 20 and since that time, I have operated as an independent 21 consultant, mostly for Westlands Water District as Modesto 22 Irrigation District. But I have also consulted with other 23 organizations throughout the U.S. and the world. 24 MR. BIRMINGHAM: Is it correct that you retired as the 25 Assistant General Manager of Westlands Water District in CAPITOL REPORTERS (916) 923-5447 7229 1 1987? 2 MR. JOHNSTON: Yes. 3 MR. BIRMINGHAM: Mr. Chairman, I have a series of 4 exhibits. Unfortunately, when they were copied, they were 5 stapled together. They are Westlands Exhibits 28 through 6 88. And perhaps I can distribute now, and I have placed 20 7 copies on the table in front of Mr. Howard and I have 8 additional copies here for any member of the audience that 9 would like them. 10 C.O. CAFFREY: That is fine. 11 MR. HOWARD: What numbers were those again? 12 MR. BIRMINGHAM: 28 through 88. 13 C.O. CAFFREY: We will go off the record for just a 14 moment. 15 Go right ahead. 16 MR. BIRMINGHAM: Mr. Johnston, I would like to show to 17 you a document, a map that has been marked for 18 identification as Westlands Exhibit 28. 19 Do you recognize Westlands Exhibit 28 as a map of the 20 state of California? 21 MR. JOHNSTON: Yes, I do. 22 MR. BIRMINGHAM: On Westlands Exhibit 28 is the 23 approximate location and boundaries of Westlands Water 24 District depicted on the west side of the San Joaquin Valley? 25 MR. JOHNSTON: Yes, it is. CAPITOL REPORTERS (916) 923-5447 7230 1 MR. BIRMINGHAM: I ask you to refer to what has been 2 marked for identification as Westlands Exhibit 29. 3 Are you familiar with Westlands Exhibit 29? 4 MR. JOHNSTON: Yes, I am. 5 MR. BIRMINGHAM: What is Westlands Exhibit 29. 6 MR. JOHNSTON: Westlands Exhibit 29 is a map of the 7 Westlands Water District showing the boundaries of the 8 district in a dark black line and the location of the San 9 Luis Drain, the San Luis Canal, Interstate 5, numerous roads 10 within the district and a number of towns, both within and 11 adjacent to the district. 12 MR. BIRMINGHAM: Approximately how many acres are 13 within the boundaries of Westlands Water District? 14 MR. JOHNSTON: Approximately 600,000 acres. 15 MR. BIRMINGHAM: I would ask you to look at a map that 16 has been identified as Westlands Exhibit 30. Are you 17 familiar with Westlands Exhibit 30? 18 MR. JOHNSTON: Yes. 19 MR. BIRMINGHAM: What is depicted by Westlands Exhibit 20 30? 21 MR. JOHNSTON: Westlands Exhibit 30 is a map of the 22 northwestern eastern portion of the Westlands Water District 23 near the town of Mendota. The map specifically describes 24 the area in Westlands Water District that was formerly 25 served by the drainage collector system. The area served by CAPITOL REPORTERS (916) 923-5447 7231 1 the drainage collector system is shown as depicted by a 2 dashed line on the west side of the area. 3 The eastern boundary of the service area would be the 4 San Luis Drain, which is shown on this map with a dashed 5 dotted line. The areas that are cross-hatched on this map 6 are areas that were formerly served by on-farm drainage 7 systems within the Westlands Water District. 8 MR. BIRMINGHAM: In describing your qualifications, you 9 were directly involved in the decommissioning of the 10 collector drainage system within Westslands in 1986; is that 11 correct? 12 MR. JOHNSTON: That's correct. 13 MR. BIRMINGHAM: Prior to 1986 was a portion of the 14 Westlands service area served by a subsurface drainage 15 connector system? 16 MR. JOHNSTON: Yes. 17 MR. BIRMINGHAM: Is that the area that is depicted on 18 Westlands Exhibit 30? 19 MR. JOHNSTON: Yes, it is. 20 MR. BIRMINGHAM: I believe you testified that this is 21 an area in the northeast corner of Westlands Water District? 22 MR. JOHNSTON: Yes, approximately 42,000 acres in size. 23 MR. BIRMINGHAM: The area that was served by the 24 subsurface collector drainage system within Westlands, what 25 happens to the water collected by that system? CAPITOL REPORTERS (916) 923-5447 7232 1 MR. JOHNSTON: The water that was collected by the 2 drainage collector system from the groundwater in general 3 and from these on-farm drains flowed by gravity into the San 4 Luis Drain where it was conveyed north to the Kesterson 5 Reservoir. 6 MR. BIRMINGHAM: Was the San Luis Drain -- let me back 7 up for a moment and ask you another question. 8 During the course of this phase of the hearing, we have 9 heard numerous references to the San Luis Drain. Have you 10 been present in the hearing room when those references have 11 been made? 12 MR. JOHNSTON: Yes. 13 MR. BIRMINGHAM: Are you familiar with the San Luis 14 Drain? 15 MR. JOHNSTON: Yes, I am. 16 MR. BIRMINGHAM: What is the San Luis Drain? 17 MR. JOHNSTON: The San Luis Drain is a concrete channel 18 that extends from approximately five points in Fresno County 19 to Kesterson Reservoir in Merced County. It carried 20 drainage water exclusively from the Westlands Water District 21 area shown on Westlands Exhibit 30 to Kesterson Reservoir. 22 There were no other -- there was no other drainage water 23 that was put into the drain nor into Kesterson Reservoir. 24 MR. BIRMINGHAM: Do you know when the San Luis Drain 25 was constructed? CAPITOL REPORTERS (916) 923-5447 7233 1 MR. JOHNSTON: The drain was constructed between -- the 2 portion of the drain that was constructed was constructed 3 somewhere between 1983 and '87, I believe. 4 MR. BIRMINGHAM: You've said that the portion of the 5 drain that was constructed, why did you say "a portion of 6 the drain"? 7 MR. JOHNSTON: Because the drain was originally planned 8 to extend to the Delta, the Bay-Delta system, from 9 approximately Kettleman City on the south end of Westlands 10 Water District. And the southern portion of the drain and 11 the northern portion of the drain for Kesterson to the Delta 12 were never constructed. 13 MR. BIRMINGHAM: At some point was the San Luis Drain 14 closed. 15 MR. JOHNSTON: Yes, it was. 16 MR. BIRMINGHAM: Do you know why the San Luis Drain was 17 closed? 18 MR. JOHNSTON: Yes. 19 MR. BIRMINGHAM: Why was the San Luis Drain closed? 20 MR. JOHNSTON: The San Luis Drain was closed because 21 the State Water Resources Control Board ordered the Bureau 22 of Reclamation to either clean up or close Kesterson 23 Reservoir when the U.S. Fish and Wildlife Service determined 24 that the element selenium was causing bird birth problems 25 and deformed birds within the reservoir area. The Secretary CAPITOL REPORTERS (916) 923-5447 7234 1 of the Interior decided that it would be in the best 2 interest of the United States to close Kesterson Reservoir 3 because of possible violations of the Migratory Bird Treaty 4 Act. 5 MR. BIRMINGHAM: Did that occur in approximately 1985? 6 MR. JOHNSTON: Yes. 7 MR. BIRMINGHAM: As a result of the closure of the 8 drain, the San Luis Drain, did it become necessary for 9 Westlands Water District to terminate this discharge of 10 drain water from the collector drain system into the drain? 11 MR. JOHNSTON: Yes. 12 MR. BIRMINGHAM: When was the subsurface collector 13 drainage system within the area depicted on Westlands 14 Exhibit 30 closed? 15 MR. JOHNSTON: In 1986. 16 MR. BIRMINGHAM: Since the closure of the San Luis 17 Drain, have you been involved in any studies or analysis 18 concerning the feasibility of completing the drain? 19 MR. JOHNSTON: Yes. 20 MR. BIRMINGHAM: I would like to show to you a document 21 that has been previously introduced into evidence as 22 Westlands Exhibit 27, which is a statement of Westlands 23 Water District presented at the State Water Resources 24 Control Board's workshop relating to the application by the 25 United States Bureau of Reclamation for a discharge permit CAPITOL REPORTERS (916) 923-5447 7235 1 for the San Luis Drain dated April 4, 1996. 2 Were you involved in the preparation of Westlands Water 3 District Exhibit 27? 4 MR. JOHNSTON: Yes. 5 MR. BIRMINGHAM: What was the purpose for preparing 6 Westlands Water District 27? 7 MR. JOHNSTON: The original purpose for preparing this 8 document was to present information to the Federal Court on 9 drainage litigation; and the specific purpose of this report 10 was to report to the State Water Resources Control Board on 11 the feasibility of completing the drain. 12 MR. BIRMINGHAM: Do you have an opinion concerning the 13 feasibility of completing the San Luis Drain? 14 MR. JOHNSTON: Yes. 15 MR. BIRMINGHAM: What is your opinion? 16 MR. JOHNSTON: I believe that a drain -- that it is 17 feasible, both economically and in the engineering sense, to 18 complete such a drain. 19 MR. BIRMINGHAM: When you say that it is feasible both 20 in the economic and engineering sense to complete the drain, 21 I would like to explore that. 22 You indicated that, as originally designed, it was 23 anticipated that the drain would discharge into the Delta. 24 Is that correct? 25 MR. JOHNSTON: That's correct. CAPITOL REPORTERS (916) 923-5447 7236 1 MR. BIRMINGHAM: Are you generally familiar with the 2 regulations that exist concerning the discharge of waste 3 into the Delta? 4 MR. JOHNSTON: In general, yes. 5 MR. BIRMINGHAM: In fact, for a period of time you 6 served as Chairman of the Central Valley Regional Water 7 Quality Control Board; is that correct? 8 MR. JOHNSTON: Yes. 9 MR. BIRMINGHAM: In order to comply with existing 10 regulations to discharge drain water from Westlands Water 11 District into the Delta, would it be necessary to treat the 12 drain water? 13 MR. JOHNSTON: Yes, it would be necessary to reduce the 14 selenium concentration in the drainage effluent in order to 15 safely discharge it anywheres into the Delta or the Bay. 16 MR. BIRMINGHAM: In order to discharge the drain water 17 in a manner consistent with existing water quality 18 regulations, it would be necessary to treat that water; is 19 that correct? 20 MR. JOHNSTON: Yes, that's correct. 21 MR. BIRMINGHAM: Do you know of any work that has been 22 determined to determine the feasibility of treating the 23 water to reduce selenium concentrations so that it could be 24 discharged in a manner consistent with existing regulations? 25 MR. JOHNSTON: Yes. CAPITOL REPORTERS (916) 923-5447 7237 1 MR. BIRMINGHAM: What is that work? 2 MR. JOHNSTON: There are a number of things that have 3 gone on. What's described in this report -- 4 MR. BIRMINGHAM: When you say "this report," what are 5 you referring to? 6 MR. JOHNSTON: Westlands Exhibit 27. There is a 7 statement by Lawrence Owens of the -- consulting engineer, 8 professor at California State University at Fresno in which 9 he describes biological treatment of drainage water in which 10 the selenium content has been substantially reduced. 11 Dr. Owens worked with the EPOC/AG group that did 12 research for Westlands Water District on the same technique. 13 And Joan Macy at U.C. Davis also worked on the reduction of 14 selenium in drainage water, as well as a number of other 15 people. 16 MR. BIRMINGHAM: Based upon the work of which are 17 familiar, do you have an opinion concerning the feasibility 18 of treating drain water to reduce concentrations of selenium 19 to a point where it could be discharged in a manner 20 consistent with existing regulations? 21 MR. JOHNSTON: Yes. 22 MR. BIRMINGHAM: What is your opinion? 23 MR. JOHNSTON: I believe that the data that have been 24 collected show that the drainage water, the selenium content 25 of drainage water can be reduced to a point where, with CAPITOL REPORTERS (916) 923-5447 7238 1 dilution and dispersion, that it could be safely discharged 2 into the Delta somewhere between Pittsburg and Carquinez 3 Strait and diluted to meet the current water quality 4 standards that are established in the Bay. 5 MR. BIRMINGHAM: In response to my question you used 6 the terms "dilution and dispersion." What do you mean by 7 dispersion? 8 MR. JOHNSTON: I mean that the drainage water would 9 have to be dispersed into the channel in a manner in which 10 the water could be discharged safely so it would not exceed 11 the two part per billion standard set in the Bay water. 12 MR. BIRMINGHAM: Are you aware of any work that has 13 been done to determine whether it is feasible to disperse 14 water in the manner you just described? 15 MR. JOHNSTON: Yes. 16 MR. BIRMINGHAM: What is the work that you are familiar 17 with? 18 MR. JOHNSTON: There is a third part of the report in 19 Westlands Exhibit 27 that was prepared by a Dr. John List of 20 Flow Science in which he describes the initial dilution and 21 mixing of agricultural drainage water into the Sacramento 22 River near Carquinez Strait. 23 MR. BIRMINGHAM: Is it based in part on Dr. List's 24 analysis that you base your opinion that completion of the 25 drain is feasible? CAPITOL REPORTERS (916) 923-5447 7239 1 MR. JOHNSTON: Yes, it is. 2 MR. BIRMINGHAM: May I have a moment? 3 C.O. CAFFREY: Go right ahead. 4 MR. BIRMINGHAM: Mr. Johnston, during the course of the 5 Phase V proceedings we heard a number of references to the 6 term "drainage problem." Have you heard the use of that 7 term? 8 MR. JOHNSTON: Yes. 9 MR. BIRMINGHAM: What is a drainage problem? 10 MR. JOHNSTON: Well, in my opinion, the drainage 11 problem from an agricultural sense is the accumulation of 12 water in the root zone of the crops that are trying to be 13 grown upon the land as a result of applying irrigation 14 water. 15 MR. BIRMINGHAM: So, if I understand your response to 16 my question, in certain areas the application of irrigation 17 water can result in accumulation of water in the crop root 18 zone? 19 MR. JOHNSTON: That's correct. If the water is applied 20 at a rate faster than it can move vertically down through 21 the crop root zone, then it will accumulate in the crop root 22 zone. Or if there is am impervious layer below the crop 23 root zone that impedes the movement of the water downward. 24 MR. BIRMINGHAM: Generally, how is that drainage 25 problem dealt with from an agricultural engineering CAPITOL REPORTERS (916) 923-5447 7240 1 perspective? 2 MR. JOHNSTON: Horizontal drains are installed just 3 below the crop root zone to drain away the water that 4 accumulates in the root zone. 5 MR. BIRMINGHAM: Is that the kind of drainage system 6 that was installed in the area that is depicted in Westlands 7 Exhibit 30? 8 MR. JOHNSTON: Yes. 9 MR. BIRMINGHAM: Is drainage problem synonymous with 10 salinity in the San Joaquin River? 11 MR. JOHNSTON: No. 12 MR. BIRMINGHAM: Why not? 13 MR. JOHNSTON: They are related. But the saline water 14 problem of the San Joaquin River is related to the disposal 15 of drainage water, but it is specifically the drainage 16 problem that the farmer is dealing with. 17 MR. BIRMINGHAM: Have you heard suggestions that a 18 potential solution to the drainage problem in Westlands 19 Water District is the retirement of land? 20 MR. JOHNSTON: Yes. 21 MR. BIRMINGHAM: In your view is land retirement a 22 solution to the drainage problem in Westlands Water 23 District? 24 MR. JOHNSON: No. 25 MR. BIRMINGHAM: Why not? CAPITOL REPORTERS (916) 923-5447 7241 1 MR. JOHNSON: The drainage problem will continue to 2 exist whether you retire the land or leave it in 3 production. The basic goal of irrigating land is to produce 4 agricultural crops. 5 The drainage problem -- taking land out of production 6 would do the same thing as not solving the drainage problem; 7 that is, reduce crop production. 8 MR. BIRMINGHAM: If I understand your answer, the 9 drainage problem is a problem because the buildup of water 10 in the crop root zone will reduce the productivity of the 11 land? 12 MR. JOHNSTON: That's correct. 13 MR. BIRMINGHAM: By "productivity" we mean the ability 14 to grow crops on that land? 15 MR. JOHNSTON: Yes. 16 MR. BIRMINGHAM: If you are looking for a solution to 17 the drainage problem, you are looking for a solution that 18 will permit continued growth of crops on land? 19 MR. JOHNSTON: I think that is the goal, yes. 20 MR. BIRMINGHAM: Taking land out of production does not 21 solve the problem? 22 MR. JOHNSTON: Does not solve the drainage problem. 23 MR. BIRMINGHAM: Why not? Is it because -- 24 MR. JOHNSON: I just answered that question. 25 MR. BIRMINGHAM: Well, Mr. Johnston, rather than CAPITOL REPORTERS (916) 923-5447 7242 1 objecting to my question on the ground it is asked and 2 answered -- 3 C.O. CAFFREY: I wasn't going to say anything, Mr. 4 Birmingham. 5 MR. BIRMINGHAM: Is it because taking land out of 6 production leads to the same result as the drainage problem? 7 MR. JOHNSTON: Yes. 8 MR. BIRMINGHAM: In fact, the land is no longer able to 9 grow crops? 10 MR. JOHNSTON: Correct. 11 MR. BIRMINGHAM: Are you aware of the position asserted 12 by the County of Trinity in connection with -- 13 C.O. CAFFREY: I am sorry, Mr. Birmingham, to interrupt 14 your question, Ms. Forster wanted a clarification on the 15 last question. 16 Go ahead, Ms. Forster. 17 MEMBER FORSTER: It isn't as obvious as you might 18 think, to me, what you just explained, the difference 19 between taking land out of production, crop reduction and 20 how it helps or hurts ag drainage. 21 Could you explain a little bit more. 22 MR. JOHNSTON: What I'm saying is that the existence of 23 the drainage problem and having a high water table in a 24 crop root zone causes a reduction in crop yield or the land 25 to be nonproductive. Taking land out of production is the CAPITOL REPORTERS (916) 923-5447 7243 1 same -- causes the end result, and that is no production. 2 So, if we want to solve the drainage problem, we have 3 to eliminate the water table from the crop root zone or 4 manage it so that the crops have enough available soil to 5 grow and produce. We have to eliminate the water. Taking 6 land out of production gives you the same result as having a 7 drainage problem. 8 In the case of the west side of the San Joaquin Valley, 9 we have, in addition to that, salty water in the root zone; 10 and the disposal of the salty drainage water is not the 11 drainage acknowledged problem, but it is related. 12 MR. BIRMINGHAM: I want to make sure I understand this 13 properly, Mr. Johnston. 14 The drainage problem is as water is applied to the 15 surface of the ground for purposes of irrigation, it 16 percolates below the surface of the ground? 17 MR. JOHNSTON: Yes. It infiltrates the soil. 18 MR. BIRMINGHAM: If that water cannot percolate far 19 enough below the surface of the ground, water accumulates in 20 what you referred to as the crop root zone? 21 MR. JOHNSTON: Yes, the crop zone soil becomes 22 saturated. 23 C.O. CAFFREY: Excuse me, again, Mr. Birmingham, again 24 breaking your train of thought. Mr. Brown has a question. 25 MEMBER BROWN: Having worked with Ms. Forster six years CAPITOL REPORTERS (916) 923-5447 7244 1 now, I think I understand her question, and it is a good 2 one. And the answer, I understand the answer. The answer 3 was from the agricultural point of view that you gave, land 4 is out of production either way? 5 MR. JOHNSTON: That's right. 6 MEMBER BROWN: That is the answer from agronomic and 7 income contribution to the State of California. Ms. Forster 8 is concerned, or her question centered, if I may, Ms. 9 Forster, the aspects of the drainage water from those lands 10 and the impact that taking the lands out of production has 11 upon the reduction, and there is some reduction, I suspect 12 is the question, if you took it out of production, then 13 obviously there is some loss of drain water or tile water. 14 And you might explain that impact. 15 MEMBER FORSTER: He's become my interpreter. 16 MR. JOHNSTON: I am going to answer the question in 17 terms of what happens in Westlands Water District. If you 18 take land out of production in Westlands Water District, at 19 this point in time it would do nothing in regard to the 20 production of drainage water because the drains have all 21 been taken out of commission, and they're not producing 22 drainage water -- 23 MEMBER BROWN: That is the answer. 24 MR. JOHNSTON: -- that leaves the boundary of the 25 district. CAPITOL REPORTERS (916) 923-5447 7245 1 MEMBER BROWN: It was important for you to say that and 2 not me. 3 C.O. CAFFREY: Thank you for clarification, lady and 4 gentleman. 5 Please proceed, Mr. Birmingham. 6 MR. BIRMINGHAM: Mr. Johnston, are you familiar with 7 the position that has been taken by the county of Trinity in 8 regards to the use of imported surface water within 9 Westlands Water District? 10 MR. JOHNSTON: Yes. 11 MR. BIRMINGHAM: What is your understanding of the 12 position of the county of Trinity -- let me restate the 13 question. 14 What is your understanding concerning the position of 15 the County of Trinity in regard to use of imported surface 16 water within Westlands Water District? 17 MR. JOHNSTON: I believe that Trinity County believes 18 that the application of imported surface water in Westlands 19 Water District, particularly to soils containing selenium, 20 is an unreasonable use of the water. In other words, it is 21 not beneficial use of the water. 22 MR. BIRMINGHAM: Is it your understanding that Trinity 23 County has asserted that the use of imported surface water 24 on land containing high concentrations of selenium is waste 25 and unreasonable use of water? CAPITOL REPORTERS (916) 923-5447 7246 1 MR. JOHNSTON: Yes. 2 MR. BIRMINGHAM: I take it from your experience that 3 you are familiar with the use of imported surface water to 4 irrigate lands within Westlands Water District? 5 MR. JOHNSTON: Yes, I am. 6 MR. BIRMINGHAM: After the closure of the subsurface 7 collector drainage system in the area depicted on Westlands 8 Exhibit 30, did Westlands Water District initiate any kind 9 of monitoring program? 10 MR. JOHNSTON: Yes, they did. 11 MR. BIRMINGHAM: Would you please describe briefly the 12 kinds of monitoring that were initiated by Westlands Water 13 District after closure of the subsurface collector drainage 14 system in the area depicted on Westlands Exhibit 30. 15 MR. JOHNSTON: Westlands was concerned about the impact 16 of closing the drains and discontinuing drainage service to 17 that area, so they did several things. First, they 18 intensified the long-term groundwater monitoring program 19 that had been carried on by both the Bureau and district for 20 years. They installed monitoring wells around each of the 21 drain plugs that were installed to close the drainage system 22 to see if there were any immediate local effects on the 23 groundwater. They more closely monitored the application of 24 irrigation water, and they developed a soil monitoring 25 program for the areas within the 42,000-acre area. CAPITOL REPORTERS (916) 923-5447 7247 1 MR. BIRMINGHAM: Did you participate in the design, 2 development and supervision of the monitoring program? 3 MR. JOHNSTON: Yes. 4 MR. BIRMINGHAM: Were you involved in the design, 5 development and supervision of the soils monitoring program 6 you just described? 7 MR. JOHNSTON: Yes. 8 MR. BIRMINGHAM: Would you describe in greater detail 9 the soils monitoring program initiated by Westlands Water 10 District after closure of the subsurface collector drainage 11 system depicted on Westlands Exhibit 30. 12 MR. JOHNSTON: In general, during the fall of several 13 years after the drainage system was closed, Westlands 14 contracted with a certified laboratory to collect soil 15 samples and conduct laboratory analysis on the salinity of 16 the soil. Soil samples were collected from each 40-acre 17 parcel to be monitored. Samples were collected from a 18 minimum of four sites in each 40-acre parcel. And they were 19 collected in one-foot increments to a depth of four feet. 20 Samples were collected in 1987, 1988, 1989, 1991 and 21 1995 to estimate the potential agricultural productivity of 22 the soils where the drainage was formerly provided. 23 MR. BIRMINGHAM: In conducting the soils monitoring 24 program -- let me ask the question differently. 25 If I understand your testimony, the purpose of CAPITOL REPORTERS (916) 923-5447 7248 1 conducting the soils monitoring program was to determine 2 whether closure of the drain would affect agricultural 3 productivity on the lands previously served by the drain? 4 MR. JOHNSTON: That's correct. 5 MR. BIRMINGHAM: Were there particular constituents 6 that the soil monitoring program focused on? 7 MR. JOHNSTON: Yes. Basically, it was the electrical 8 conductivity or the salinity of the soil extract and the 9 boron content in the soils, things that would impact crop 10 growth. 11 MR. BIRMINGHAM: If I understand your testimony, data 12 were collected from 40-acre blocks of land? 13 MR. JOHNSTON: Yes. 14 MR. BIRMINGHAM: How were the data collected from those 15 40-acre blocks of land analyzed? 16 MR. JOHNSTON: The samples that were collected from 17 each 40-acre parcel and each depth were mixed together by 18 the laboratory that was contracted by Westlands, and these 19 40-acre blocks, one-foot depth samples were then thoroughly 20 mixed. A soil extract was collected from the soil samples, 21 and the extract was analyzed for salinity and boron. 22 The data were combined for the various farms to determine if 23 there was a change in salinity over time. 24 MR. BIRMINGHAM: Change in salinity and boron? 25 MR. JOHNSTON: And boron, yes. CAPITOL REPORTERS (916) 923-5447 7249 1 MR. BIRMINGHAM: Why did you focus on salinity and 2 boron? 3 MR. JOHNSTON: Because those are the factors we could 4 estimate charges in crop production, potential. 5 MR. BIRMINGHAM: Is it correct that you focused on 6 salinity and boron because those are two constituents which 7 can impair agricultural productivity? 8 MR. JOHNSTON: Yes. 9 MR. BIRMINGHAM: Mr. Johnston, I would like to show to 10 you a chart that is entitled "Projected Yield of Selected 11 Crops," which has been marked for identification as 12 Westlands Exhibit 31. 13 Did you prepare Westlands Exhibit 31? 14 MR. JOHNSTON: I supervised the development of this 15 table. 16 MR. BIRMINGHAM: Would you please explain to the Board 17 what information is contained in Westlands Exhibit 31. 18 MR. JOHNSTON: Westlands Exhibit 31, entitled 19 "Projected Yield of Selected Crops," is a summary of the 20 salinity impact on selected crops, a very simplified 21 version, where it shows in the left-hand column the ECe, 22 electrical conductivity of the soil extract in deciSiemens 23 per meter. 24 If the measured quantity is three or below, then we 25 anticipate that there will be no salinity problem in that CAPITOL REPORTERS (916) 923-5447 7250 1 soil impacting crop growth. If the ECe would be between 2 three and six, we would expect slight to moderate salinity 3 problems. Between six and ten, we would expect severe 4 salinity problems. If the EC of the extract is more than 5 ten, then we expect extreme salinity problems. 6 The data are based on the United Nations Food and 7 Agriculture Organization publication by Robert Ayers and 8 Dennis Westcot, entitled "Water Quality for Agriculture." 9 MR. BIRMINGHAM: Your reference to United Nations Food 10 and Agriculture Organization publication means that it was 11 from that publication that you took the information used in 12 preparing Westlands Water District 31? 13 MR. JOHNSTON: Yes. 14 MR. BIRMINGHAM: I would like to show to you a document 15 that is labeled "Estimated Impact of Yield on Selected 16 Crops," identified as Westlands Exhibit 32. 17 Were you involved in the preparation of Westlands 18 Exhibit 32? 19 MR. JOHNSTON: Yes. 20 MR. BIRMINGHAM: Would you please explain what is 21 contained in Westlands Exhibit 32. 22 MR. JOHNSTON: Westlands Exhibit 32 shows a formula 23 that can be used to estimate the percentage of yield of the 24 crop for any reported soil electrical conductivity of the 25 soil extract. In the formula there are several terms. CAPITOL REPORTERS (916) 923-5447 7251 1 The term "a" shows the crop tolerance to salinity in 2 deciSiemens per meter, where "a" is the highest salinity 3 concentration for which the yield of the crop potential is 4 100 percent. The "b" term in the equation is the percent 5 yield loss or the slope per unit increase in the electrical 6 conductivity of the extract above the tolerance threshold 7 shown in term "a." 8 Then ECe, or the electrical conductivity of the 9 extract, is the measured average soil salinity determined 10 and recorded by the laboratory analysis in deciSiemens per 11 meter. You can take this formula and calculate potential 12 crop production for different soils from which you measured 13 the extract, the Electrical Conductivity of the extract. 14 MR. BIRMINGHAM: In conducting the monitoring program 15 that you referred to, the soils monitoring program, in 16 trying to determine impact of changing salinity 17 concentrations on crop yields, did you use the formula that 18 is described in Westlands Exhibit 32? 19 MR. JOHNSTON: Yes. 20 MR. BIRMINGHAM: I would like to show to you a document 21 that has been marked as Westlands Exhibit 32. 22 Were you involved in the preparation of Westlands 33? 23 MR. JOHNSTON: Yes. 24 MR. BIRMINGHAM: Please describe for the Board what is 25 contained in Westlands Exhibit 33. CAPITOL REPORTERS (916) 923-5447 7252 1 MR. JOHNSTON: Westlands Exhibit 33 is a table that 2 shows the values that would be used in the equation shown in 3 Westlands 32 for five crops that are grown in Westlands 4 Water District: almonds, alfalfa, tomatoes, sugar beets, 5 cotton. 6 MR. BIRMINGHAM: So, the tolerance that would be used 7 in the formula contained in Westlands 32 is the value that 8 you would insert in the formula? 9 MR. JOHNSTON: Yes. If you were -- for example, for 10 almonds the a term would be 1.5 and the b term would be 11 18.9, which you would insert in the formula along with the 12 measured electrical conductivity of the soil extract to 13 determine the potential yield for almonds. 14 MR. BIRMINGHAM: How did you develop the information 15 contained in Westlands Exhibit 33? 16 MR. JOHNSTON: These data are from FAO 29, a 17 publication referenced on Westlands Exhibit 31. 18 MR. BIRMINGHAM: I would like to show you a table 19 entitled, "A Hypothetical Estimate of the Percentage of 20 Maximum Crop Yield for the Average Root Zone Salinity of the 21 Soils in Westlands Water District," marked for 22 identification as Westlands Exhibit 34. 23 Were you involved in preparation of Westlands Exhibit 24 34? 25 MR. JOHNSTON: Yes. CAPITOL REPORTERS (916) 923-5447 7253 1 MR. BIRMINGHAM: What is the information that is 2 contained in Westlands Exhibit 34? 3 MR. JOHNSTON: The information contained in the 4 exhibit, Westlands 34, is the five crops that I mentioned 5 previously, almonds, alfalfa, tomatoes, sugar beets and 6 cotton, and the potential yield that one would expect from 7 those crops for an EC of the soil extract of 1, 2, 4, 8 and 8 12. 9 MR. BIRMINGHAM: It states that these are hypothetical 10 estimates; is that correct? 11 MR. JOHNSTON: Yes. 12 MR. BIRMINGHAM: So, in other words, the information 13 that is depicted on Westlands 34 is information which is 14 based upon hypothetical data as opposed to data actually 15 collected as part of a monitoring program? 16 MR. JOHNSTON: It is for selected EC extract, soil 17 extract EC, of 1, 2, 4, 8 and 12. We selected those numbers 18 just to build the table, and then used the values in 19 Westlands Exhibit 33 in the formula in Westlands Exhibit 32 20 to come up with the yield values shown on Westlands 34. 21 MR. BIRMINGHAM: If we can use alfalfa as an example, 22 if the soil has an ECe in deciSiemens per meter of 1, you 23 would expect there would be no impact on crop yield; is that 24 correct? 25 MR. JOHNSTON: That's correct. CAPITOL REPORTERS (916) 923-5447 7254 1 MR. BIRMINGHAM: The same thing would be true if the 2 concentration of salinity in the soils expressed in 3 deciSiemens per meter was 2? 4 MR. JOHNSTON: That's correct. 5 MR. BIRMINGHAM: With respect to alfalfa, if the 6 concentrations of salinity in the soil expressed in 7 deciSiemens per meter was 4, what would be the impact on 8 alfalfa crops yield? 9 MR. JOHNSTON: You would expect an 86 percent crop 10 yield or a reduction of 14 percent. 11 MR. BIRMINGHAM: If the salinity concentration 12 expressed in deciSiemens per meter were 8, what would be the 13 impact on crop yield for alfalfa? 14 MR. JOHNSTON: We would expect a 57 percent potential 15 crop yield. 16 MR. BIRMINGHAM: If the concentration were 12, you 17 would expect a 29 percent crop yield? 18 MR. JOHNSTON: Potential, yes. 19 MR. BIRMINGHAM: For alfalfa? 20 MR. JOHNSTON: Yes. 21 MR. BIRMINGHAM: Can we take it from information 22 contained in Westlands 34 that different crops have 23 different salinity tolerances? 24 MR. JOHNSTON: Yes. 25 MR. BIRMINGHAM: I would like you to look at what has CAPITOL REPORTERS (916) 923-5447 7255 1 been marked for identification as Westlands Exhibit 35, 2 which is a graph entitled, "The Hypothetical Impact of an 3 Average Root Zone Soil Salinity on the Yield of Each 4 Selected Crop." 5 Were you involved in the preparation of Westlands 6 Exhibit 35? 7 MR. JOHNSTON: Yes. 8 MR. BIRMINGHAM: Would you describe for us what is 9 contained in Westlands Exhibit 35? 10 MEMBER DEL PIERO: Please. 11 C.O. CAFFREY: I have to say that Mr. Del Piero 12 remarked that our engineering members are getting goose 13 bumps over this. That is really neat. 14 MR. BIRMINGHAM: And I keep hearing snoring out here. 15 MEMBER BROWN: Heads nodding off. 16 MR. NOMELLINI: Got calls from the bottom line. 17 MR. BIRMINGHAM: We've got 88 to go. 18 C.O. CAFFREY: On that note, perhaps, it might be just 19 as well to break for lunch and come back. 20 MEMBER FORSTER: Break for lunch. 21 C.O. CAFFREY: Do you want to make a point at this 22 stage? 23 MR. BIRMINGHAM: I have a couple more questions, and 24 then maybe it would be -- let me ask him a few questions 25 about, hypothetically what is shown and then, when we come CAPITOL REPORTERS (916) 923-5447 7256 1 back from lunch, we can get into that actual data. 2 Would that be appropriate? 3 C.O. CAFFREY: Sure. Go ahead. 4 MR. BIRMINGHAM: Let me see if I can speed this along. 5 MR. JOHNSTON: I never did answer the question about 6 what this is. 7 MR. BIRMINGHAM: Let me see if I can ask the question. 8 Is Westlands Exhibit 35 a three-dimensional depiction 9 of the data contained in Westlands Exhibit 34? 10 MR. JOHNSTON: Yes, it is. 11 MR. BIRMINGHAM: It is simply another way of depicting 12 the information that is contained in Westlands 34; is that 13 correct? 14 MR. JOHNSTON: Yes. 15 MR. BIRMINGHAM: This would be an appropriate time to 16 break. 17 C.O. CAFFREY: Thank you, Mr. Birmingham. 18 We'll come back at 1:15. 19 (Luncheon break.) 20 ---oOo--- 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 7257 1 AFTERNOON SESSION 2 ---oOo--- 3 C.O. CAFFREY: Good afternoon. 4 We are back, and we will continue with Mr. Birmingham's 5 presentation of his rebuttal case with Mr. Johnston. 6 MR. BIRMINGHAM: Mr. Johnston, immediately before the 7 lunch recess we were talking about Westlands Exhibit 35 for 8 identification, and I believe you testified that Westlands 9 Water District Exhibit 35 depicts graphically in three 10 dimensions the hypothetical data shown in Westlands Water 11 District Exhibit 34; is that correct? 12 MR. JOHNSTON: Yes, it is. 13 MR. BIRMINGHAM: During the course of the proceedings 14 in Phase V, there has been some discussion about soil 15 leaching or leaching fractions. Do you recall hearing 16 testimony about soil leaching or leaching fractions? 17 MR. JOHNSTON: Yes. 18 MR. BIRMINGHAM: Mr. Johnston, what is a leaching 19 fraction? 20 MR. JOHNSTON: The leaching fraction, as it pertains to 21 irrigation and soils, is a percentage of the applied water 22 that moves through the crop root zone. 23 MR. BIRMINGHAM: Why is leaching important in 24 agricultural production? 25 MR. JOHNSTON: Leaching is important to agricultural CAPITOL REPORTERS (916) 923-5447 7258 1 production in that all irrigation water contains some amount 2 of salt. And the soils contain, generally, some kind of 3 salt, some amount of salt. And it is important that you 4 maintain a salt balance in the soil so that the salt doesn't 5 accumulate in the crop root zone and deter or decrease crop 6 production. 7 The leaching that must take place is that sufficient to 8 maintain salt balance in the crop root zone. 9 MR. BIRMINGHAM: So, if I understand your testimony, 10 leaching controls the extent to which salts accumulate in 11 the soil of the crop root zone? 12 MR. JOHNSTON: That's correct. 13 MR. BIRMINGHAM: If the leaching fraction is too low, 14 then salts will accumulate? 15 MR. JOHNSTON: Correct. 16 MR. BIRMINGHAM: If the leaching fraction is too high, 17 salts will be lower than necessary to maintain maximum crop 18 yield? 19 MR. JOHNSTON: That generally is not a problem. If you 20 have too high a leaching fraction, you are basically wasting 21 water or contributing to the drainage problem in the case 22 where you have a high water table. 23 MR. BIRMINGHAM: I ask you to look at what has been 24 marked as Westlands Water District 36, which is entitled 25 "The Leaching Fraction." CAPITOL REPORTERS (916) 923-5447 7259 1 Were you involved in the preparation of Westlands 2 Exhibit 36? 3 MR. JOHNSTON: Yes. 4 MR. BIRMINGHAM: What is depicted by Westlands Exhibit 5 36? 6 MR. JOHNSTON: Westlands Exhibit 36 is a table that 7 shows varying leaching fractions on the left with 8 interpretation of what those leaching fractions may mean in 9 terms of whether or not the leaching fraction is low, 10 moderate, high or very high. 11 MR. BIRMINGHAM: So, in other words, if you have a 12 leaching fraction of 1 to 5 percent, then that would be a 13 very low leaching fraction and probably would mean that too 14 little water was being applied or that there was no leaching 15 of the salts taking place? 16 MR. JOHNSTON: That's correct. 17 MR. BIRMINGHAM: Conversely, if you had a leaching 18 fraction in excess of 40 percent, you would have a very 19 inefficient use of water? 20 MR. JOHNSTON: That's correct. 21 MR. BIRMINGHAM: I would like you to refer to 22 Westlands Water District 37 for identification, which is 23 entitled "Soil EC at Apparent Leaching Fraction." 24 Were you involved in the preparation of Westlands Water 25 District Exhibit 37? CAPITOL REPORTERS (916) 923-5447 7260 1 MR. JOHNSTON: Yes. 2 MR. BIRMINGHAM: What is Westlands Water District 3 Exhibit 37? 4 MR. JOHNSTON: This is a table that depicts the 5 approximate soil EC at different leaching fractions for 6 different soil depths. On the left you see a column labeled 7 "Soil Depth" in feet, and you have the first, second, third 8 and fourth foot of soil, and across the top there are 9 varying leaching fractions. And for each leaching fraction 10 in each foot there is a soil EC that is depicted for each 11 value. 12 MR. BIRMINGHAM: So, if I understand your description 13 of Westlands Exhibit 37 -- let's take, for example, a 14 leaching fraction of 5 percent. At two feet with a leaching 15 -- soil depth of two feet with a leaching fraction of 5 16 percent, you expect a soil EC at approximately .9? 17 MR. JOHNSTON: That's correct. 18 MR. BIRMINGHAM: From where did you obtain the data 19 that you used in preparation of Westlands Water District 37? 20 MR. JOHNSTON: These data also come from the FAO 21 publication 29. 22 MR. BIRMINGHAM: When you say the "FAO publication 29," 23 you are referring to the Report of the United Nations Food 24 and Agriculture Organization by Robert Ayers and Dennis 25 Westcot? CAPITOL REPORTERS (916) 923-5447 7261 1 MR. JOHNSTON: Yes. 2 MR. BIRMINGHAM: I would like you to refer to Westlands 3 Water District 38 for identification. Were you involved in 4 the preparation of Westlands Water District 35? 5 MR. JOHNSTON: Yes. 6 MR. BIRMINGHAM: What is Westlands Water District 38? 7 MR. JOHNSTON: This is a depiction of the values shown 8 on Westlands Exhibit 37 for leaching fractions of 1, 5, 10, 9 20 and 40 percent. These curves are useful to determine 10 the approximate leaching fraction from actual data that were 11 collected in the monitoring program we described. 12 MR. BIRMINGHAM: Am I correct that the information 13 depicted in Westlands Exhibit 38 are theoretical, apparent 14 leaching fractions? 15 MR. JOHNSTON: Yes. What is important is the slope of 16 the line for the different percentages of leaching 17 fractions. 18 MR. BIRMINGHAM: Do I take it that the actual measured 19 soil salinity for each soil sample collected in Westlands 20 can be compared to the curves depicted on Westlands Exhibit 21 38? 22 MR. JOHNSTON: Yes. 23 MR. BIRMINGHAM: What would be the purpose of that 24 comparison? 25 MR. JOHNSTON: To determine an estimate of the leaching CAPITOL REPORTERS (916) 923-5447 7262 1 fraction that was actually taking place over a given period 2 of time. 3 MR. BIRMINGHAM: I believe in response to an earlier 4 question that I have asked, that you testified in addition 5 to examining the potential effects of salinity 6 concentrations you looked at boron? 7 MR. JOHNSTON: That's correct. 8 MR. BIRMINGHAM: I would like you to look at Westlands 9 Water District 39. Would you please -- 10 First, were you involved in the preparation of 11 Westlands Exhibit 39? 12 MR. JOHNSTON: Yes. 13 MR. BIRMINGHAM: What is depicted by the table 14 identified or labeled "Boron Affect Crop Yield" in Westlands 15 Exhibit 39? 16 MR. JOHNSTON: Westlands Exhibit 39 is a simplified 17 explanation of the impact boron -- the accumulation boron 18 would have on crops that are grown on the west side. For 19 example, in the left side of the table lists the quantity of 20 boron in milligrams per liter that would be found in the 21 soil extract. And if you have less than half a part or half 22 a milligram per liter, you would expect no problems, even 23 with the most sensitive crops. 24 Whereas, when you get up above 1 milligram per liter of 25 boron, you would begin to see a problem. And above two you CAPITOL REPORTERS (916) 923-5447 7263 1 would have potential problems for many crops. And as the 2 boron level increases, you would then have increasing 3 problems on crop growth. 4 MR. BIRMINGHAM: When you say "increasing problems with 5 crop growth," you mean you would have a greater impact on 6 crop yield? 7 MR. JOHNSTON: Correct. 8 MR. BIRMINGHAM: There is an asterisk on Westlands 9 Exhibit 39, and next to the asterisk it states from "FAO 10 29." Does that mean you obtained the data depicted on 11 Westlands 39 from the United Nations Food and Agriculture 12 Organization publication by Ayers and Westcot? 13 MR. JOHNSTON: Yes, it does. 14 MR. BIRMINGHAM: Would you please look at the document 15 marked as Westlands Exhibit 40. 16 C.O. CAFFREY: Mr. Jackson. 17 MR. JACKSON: Yes, Mr. Caffrey, I have followed this 18 for a while. I have not -- I do not remember, and I may be 19 wrong. I was out for a couple of hours in the last six 20 months. But it does not seem to me that there was any case 21 in chief that talked about crop yields. And so, I don't 22 know what we are rebutting here. 23 C.O. CAFFREY: Thank you. 24 Mr. Birmingham, you wish to offer your justification, 25 so to speak? CAPITOL REPORTERS (916) 923-5447 7264 1 MR. BIRMINGHAM: Well, in fact, it is Mr. Jackson's 2 client, Trinity County, that has asserted that the use of 3 water in Westlands Water District constitutes waste and 4 unreasonable use. That assertion was made without any 5 explanation or any evidence. 6 In fact, we know that the people who appeared from 7 Trinity County don't know anything about what goes on in 8 Westlands Water District. They testified as to that. As a 9 result, we have that stipulation. But still, the assertion 10 has been made. 11 I will make an offer of proof that any knowledgeable 12 engineer here would agree that before you make some 13 determination or allegation with respect to what constitutes 14 waste and unreasonable use, you first want to determine what 15 impacts are occurring. And in terms of crop production and 16 whether or not the use of water for irrigation in Westlands 17 Water District is wasteful and unreasonable, you want to 18 determine what is going on. 19 And the information that we are providing relates to 20 the impacts of applying irrigation water to land in 21 Westlands Water District previously served by a drain since 22 closure of the drain. I think it goes directly to rebut the 23 allegation, although, albeit unsupported, the allegation 24 that has been made that the use of water in Westlands 25 constitutes waste and unreasonable use. CAPITOL REPORTERS (916) 923-5447 7265 1 MR. JACKSON: Now I am relatively clear that this is 2 all irrelevant. The waste and unreasonable argument is 3 based upon the use of irrigation water that returns as a 4 water quality problem to the San Joaquin River, which is the 5 subject of Phase V. Clearly, there is no indication that 6 the use of water that does not cause salinity, selenium or 7 boron problems was never part of our case in chief for 8 Trinity County. 9 So, now I clearly do not understand why we are talking 10 about the so-called problem for the growth since that was 11 never part of the testimony. 12 C.O. CAFFREY: Thank you. 13 Mr. Brown, did you have something? I am sure Mr. 14 Birmingham wants to respond again. Mr. Brown, you want to 15 go first? 16 MEMBER BROWN: Perhaps a suggestion might short stop 17 some of it. If they would, the opposing side, that Mr. 18 Birmingham would concede that the irrigation efficient and 19 application rates are not in question, that perhaps could 20 shorten some of the questions here. 21 MR. BIRMINGHAM: If Mr. Jackson by his statements is 22 suggesting that the allegation concerning the application of 23 water in Westlands Water District is being withdrawn by 24 Trinity County, then we can sit down and go home. Because I 25 think that the evidence to date has been that the CAPITOL REPORTERS (916) 923-5447 7266 1 application of water in Westlands Water District, 2 notwithstanding all the questions that Mr. Nomellini has 3 asked and notwithstanding the questions Mr. Jackson has 4 asked of people who are knowledgeable, the evidence has been 5 that the application of water in Westlands Water District 6 does not result in increased salinity in the San Joaquin 7 River. 8 If Mr. Jackson is prepared to say that Trinity County 9 will stipulate to that, we will sit down; we will go home. 10 MR. JACKSON: Absolutely not. 11 MR. NOMELLINI: I sure won't. 12 MR. JACKSON: It was a nice try. 13 The linkage is that this evidence has not talked at all 14 so far. And as far as I can tell, may never talk, from 15 looking at the exhibits, about problems caused by irrigation 16 off-site. This is simply a testimony in regard to problems 17 caused on-site and, I guess, in terms of crop yield. That 18 certainly was not part of Trinity County's case or any other 19 case. 20 Clearly, the farmers in Westlands may have problems 21 unrelated to the San Joaquin River. But, clearly, this is 22 not rebutting any of the allegations about problems caused 23 to the water quality in the San Joaquin River and at 24 Vernalis, which is the subject of this phase. 25 MR. BIRMINGHAM: To the absolute contrary, Mr. CAPITOL REPORTERS (916) 923-5447 7267 1 Chairman. I don't want to make this personal, but I am 2 ultimately going to ask Mr. Johnson to express an opinion on 3 the ultimate question raised by Mr. Jackson's clients. And 4 unlike some of the witnesses who have appeared, I am trying 5 to lay an absolute clear path from beginning to end to serve 6 as the basis of this expert's opinion. 7 I don't think there is anyone in this room who would 8 dispute Mr. Johnston is more knowledgeable on the subject of 9 drainage then virtually anybody else in the state of 10 California, particularly drainage on the west side of the 11 San Joaquin Valley. 12 I am going to ask him to express an opinion, and I want 13 to make it very clear to the Board and I want the evidence 14 to make it very clear to the Board and the ultimate 15 arbitrator of this question what the basis of his opinion 16 is; and this information goes to the basis of his opinion. 17 Or I will make that offer of proof, that it will be to the 18 basis of his opinion. 19 C.O. CAFFREY: Thank you, Mr. Birmingham. 20 I have a couple other attorneys to hear from. We are 21 going to Mr. Nomellini and then to Mr. Minasian. 22 Mr. Nomellini. 23 MR. NOMELLINI: I wasn't going to join the debate until 24 I was invited by name. First of all, I want it clear on the 25 record that I think the evidence is contrary to what Mr. CAPITOL REPORTERS (916) 923-5447 7268 1 Birmingham is representing, and that this salinity is moving 2 downslope and hurts groundwater above the Corcoran clay and 3 ends up in the river in the form of accretions. I think 4 there is more to be learned from about the amount from a 5 particular area, and whatever, and I was hoping this 6 rebuttal testimony would head in that direction, since I 7 think the case has already been made that there is a certain 8 amount of that going on. 9 MR. BIRMINGHAM: Maybe Mr. Nomellini can refer us to 10 where in the record that evidence exists. 11 C.O. CAFFREY: What I really -- I want to make it clear 12 that I don't want to argue the evidentiary question. I want 13 to argue the concept of whether this is appropriate 14 testimony or not. 15 I would ask all of the attorneys, and this is not 16 against you, Mr. Nomellini, I would ask you all not to take 17 these statements as an opportunity to make statements of 18 argument to the point of becoming testimony. 19 MR. NOMELLINI: Okay. I think you are right, and I 20 apologize for it. The reason I am doing it is because I am 21 responding to what Mr. Birmingham did. He did exactly 22 that. Therefore, I have said enough. 23 C.O. CAFFREY: That is why I didn't limit you, Mr. 24 Nomellini. Thank you, sir. 25 Mr. Minasian. I think Mr. Herrick had his hand up. CAPITOL REPORTERS (916) 923-5447 7269 1 Mr. Minasian. 2 MR. MINASIAN: Could I harken all of us back to the 3 testimony of Mr. McGahan and the testimony of Mr. Hildebrand 4 with regard to the mechanics of trying to manage water, 5 manage crop production, manage the groundwater basin. I 6 believe Mr. Johnston's testimony is all relevant in regard 7 to that, and it is microscopic in a way. But it basically 8 gives us a view of what is going on under the ground. 9 Whereas, up to now we have had testimony in regard to the 10 acts that take place on the surface. 11 C.O. CAFFREY: Thank you, sir. 12 Mr. Herrick. 13 MR. HERRICK: If Westlands had wanted to give evidence 14 in Phase V that it was not a part of the problem of drainage 15 into the San Joaquin River, they were more than welcome to. 16 At this point, from the attorney's own lips, he said the 17 evidence to date shows that Westlands doesn't affect that. 18 So there is nothing to rebut. This seems to me to be 19 rebuttal of the evidence presented by Trinity County, which 20 was agreed to be removed from the record. I don't know what 21 we are rebutting here. 22 The ultimate question of drainage into the river is 23 something that counsel has already said the evidence doesn't 24 support. 25 C.O. CAFFREY: Would you like to close, Mr. Birmingham, CAPITOL REPORTERS (916) 923-5447 7270 1 with anything? 2 MR. BIRMINGHAM: Yes, although I am not sure it will be 3 a closure. 4 C.O. CAFFREY: Maybe I should say, "Would you like to 5 have the last word," since you are the next to the last 6 word, since you are the one that is sustaining, so to speak, 7 the onslaught of objections. Go ahead. 8 MR. BIRMINGHAM: This is a very important question. I 9 think that from the manner in which we cross-examined 10 Trinity County, it was; I hope it was apparent to the Board 11 that this is a very, very important issue. The allegation 12 still is made, that the use of water in Westlands Water 13 District constitute waste and unreasonable use. That is 14 both a legal question and engineering question. 15 And in order for me to make an argument, based upon the 16 law, to rebut the allegation that has been made or the claim 17 that has been made, it is necessary for me to have certain 18 evidence in the record, engineering evidence which can then 19 be used to support the legal argument that I will make. 20 Again, if Mr. Nomellini or Mr. Jackson want to withdraw 21 the allegation -- 22 C.O. CAFFREY: I think they have been clear on that. 23 MR. BIRMINGHAM: They are not willing to do that. Then 24 I think that we have an absolute right to put into the 25 record the evidence that we will use to support our legal CAPITOL REPORTERS (916) 923-5447 7271 1 argument. 2 C.O. CAFFREY: Thank you, sir. 3 Before we go off the record for a time-out for a little 4 deliberation with Ms. Leidigh, I just want to say I am 5 getting the impression from the commentary and from 6 objections being made from the audience, that there is an 7 impression that rebuttal has to be limited to direct 8 evidence. It's -- rebuttal can include, correct me if I am 9 wrong, Ms. Leidigh, it encompasses cross, redirect and 10 recross. 11 MS. LEIDIGH: Yes, it does. 12 C.O. CAFFREY: I don't know that that pertains to Mr. 13 Birmingham's situation, but that is a question I am going to 14 raise when we are conferencing here. 15 Let's go off the record. We will be back in a 16 moment. 17 (Discussion held off the record.) 18 C.O. CAFFREY: We are back on the record. 19 Here is the ruling. After conference and some 20 discussion of structure of record and what is in it, we are 21 going to allow this line of questioning. 22 A personal request of Mr. Birmingham: dispatch is 23 really appreciated. We know you have a lot of exhibits and 24 a ways to go. 25 Please continue, sir. CAPITOL REPORTERS (916) 923-5447 7272 1 MR. BIRMINGHAM: I will try and speed it up, 2 Mr. Chairman. 3 C.O. CAFFREY: Thank you, sir. 4 MR. BIRMINGHAM: Mr. Johnston, I believe we were 5 talking about Westlands Exhibit 40. Could you please 6 explain to the -- let me ask a question in an effort to 7 speed things along. 8 You have a package of documents in front of you, some 9 of which we have talked about. Westlands Exhibit 28 through 10 Westlands Exhibit 88; is that correct, Mr. Johnston? 11 MR. JOHNSTON: Yes. 12 MR. BIRMINGHAM: Were you responsible for supervising 13 the preparation of each of the exhibits in the package that 14 has been identified as Westlands Exhibit 28 through 88? 15 MR. JOHNSTON: Yes, I was. 16 MR. BIRMINGHAM: Would you please tell the Board what 17 is depicted by Westlands Exhibit 40. 18 MR. JOHNSTON: Westlands Exhibit 40 is another formula 19 which can be used to estimate the impact of boron on the 20 yield of selected crops. It is a formula similar to the one 21 showing the -- estimating the crop yield from the electrical 22 conductivity of the soil extract. In this case it is the 23 boron content of the soil extract. Where, in this formula, 24 the "a" and "b" terms are the same as in the other formula 25 and the "Y" is the estimate of the percent yield of the crop CAPITOL REPORTERS (916) 923-5447 7273 1 at the report of the soil, boron extract, or boron in 2 milligram per liter. And the term "b so b" is the average 3 soil born in the four-foot depth of the soil sample. 4 MR. BIRMINGHAM: In analyzing the data collected as 5 part of the Westlands soils monitoring program, did you use 6 the formula described in Westlands Exhibit 40 to determine 7 the impact of boron concentrations on crop yields? 8 MR. JOHNSTON: Yes. 9 MR. BIRMINGHAM: Westlands Exhibit 41, Mr. Johnston, 10 would you please explain for the Board what is described in 11 Westlands Exhibit 41. 12 MR. JOHNSTON: Westlands Exhibit 41 shows the predicted 13 yield in percent of normal or the crop tolerance to boron 14 for selected crops. These data are from the U.S. Salinity 15 Laboratory located in Riverside, California, and adopted 16 from data presented in a chapter entitled "Crop Yields as 17 affected by Salinity in Agricultural Drainage," in American 18 Society of Agronomy that is in press at this present time. 19 It hasn't been published, but the data are available. 20 It slows the crop and tolerance levels for boron in the 21 left-hand column. It shows the "b" term in terms of the 22 slope of the curve for boron concentrations of 1, 2, 4, 6 23 and 10 milligrams per liter, with the yield shown in the 24 body of the table, the projected yield. 25 MR. BIRMINGHAM: We had an exhibit for salinity similar CAPITOL REPORTERS (916) 923-5447 7274 1 to Exhibit 41; is that correct, Mr. Johnston? 2 MR. JOHNSTON: Yes, we did. 3 MR. BIRMINGHAM: Is it correct that the data contained 4 in Exhibit 41 are hypothetical data which you selected for 5 purposes of illustration as opposed to actual data 6 collected? 7 MR. JOHNSTON: The tolerance levels across the top of 8 the table, the 1, 2, 4, 6 and 10, are selected. But the 9 data in the body of the table, showing the crop yield, are 10 calculated with the formula shown on Westlands Exhibit 40 11 and the slope term "b" shown in the second column on this 12 table. 13 MR. BIRMINGHAM: If we look at the crop and tolerance 14 column on the left, taking zucchini squash as an example, if 15 you have a boron concentration of six milligrams per liter 16 in soil, that would reduce the estimated or expected crop 17 yield to 83 percent? 18 MR. JOHNSTON: That is correct, reducing 17 percent 19 from the maximum. 20 MR. BIRMINGHAM: Westlands Water District Exhibit 42, 21 Mr. Johnston, is Westlands Water District 42 a 22 three-dimensional depiction of the information depicted in 23 Westlands Water District Exhibit 41? 24 MR. JOHNSTON: Yes. For six selected crops. 25 MR. BIRMINGHAM: These six selected crops are cotton, CAPITOL REPORTERS (916) 923-5447 7275 1 tomato, beet, wheat, cow peas and snap peas? 2 MR. JOHNSTON: Snap beans. 3 MR. BIRMINGHAM: Excuse me, snap beans. 4 MR. JOHNSTON: That's correct. 5 MR. BIRMINGHAM: Are those crops selected because those 6 are crops grown in Westlands Water District? 7 MR. JOHNSTON: Yes. I am not sure about snap beans. 8 It was selected to give you a range of tolerances and 9 impacts. 10 MR. BIRMINGHAM: I would like to go now, Mr. Johnston, 11 to Westlands Water District Exhibit 43. 12 C.O. CAFFREY: Excuse me, Mr. Birmingham. Ms. Forster 13 has a question. 14 MEMBER FORSTER: May I ask a question on crops. Since 15 you have had so much experience over the years in Westlands. 16 Have they looked at other crops that are more tolerant, that 17 don't have the kind of problems that you're laying out here 18 from issues that you are laying out, you look at it, you 19 think, "Well, why don't they grow crops that are better 20 suited?" Or are these the crops that do well there and are 21 more in demand, and they are just the best thing that the 22 farmers want to grow? 23 I am sure you have been asked that many times. But 24 this is of interest to me, why these crops in that area and 25 what research was done on alternative crops that might help CAPITOL REPORTERS (916) 923-5447 7276 1 out in the big picture of drainage in the area. 2 MR. JOHNSTON: There are probably close to a hundred 3 different crops grown in Westlands Water District. And what 4 an individual farmer grows, of course, is what he thinks he 5 can do best with in terms of making a profit. 6 As you can see from these tables, there are crops that 7 can be grown on these soils without any impact yield. There 8 are crops that you could grow here or try to grow here that 9 would be severely impacted with the salinity and boron 10 levels we are talking about. 11 These are -- so far these graphs that we have shown are 12 for illustrative purposes, to show how you can determine the 13 productivity or the expected productivity of a given crop. 14 So, I am not indicating that any particular farmer is 15 growing any particular crop here. I am just showing these 16 crops, there are crops that can be grown without impact. 17 There are crops that they can try to grow that would be 18 severely impacted. 19 You asked several questions there about -- 20 MEMBER FORSTER: Was it compounded? 21 MR. JOHNSTON: Yes. What research has been done? 22 There has been a lot of research done to determine what 23 better crops might be produced so the farmers could make a 24 profit. I think I have covered what you have asked. 25 MR. BIRMINGHAM: Let me follow up, if I may, Mr. CAPITOL REPORTERS (916) 923-5447 7277 1 Johnston. 2 Is it your experience that, generally, farmers in 3 Westlands select the crops that they will grow based upon a 4 variety of factors? 5 MR. JOHNSTON: Yes. 6 MR. BIRMINGHAM: Within the area of Westlands that has 7 a drainage problem as you have described it, is the 8 existence of that drainage problem one of the factors 9 considered by farmers in selecting the crops that they will 10 grow? 11 MR. JOHNSTON: Yes, it certainly is. 12 MR. BIRMINGHAM: Generally, in areas where there is a 13 drainage problem, do farmers select crops that are more 14 tolerant to salinity and boron that might be present in the 15 soil because of the drainage problem? 16 MR. JOHNSTON: Yes. 17 MEMBER FORSTER: That is what I was asking. 18 MR. BIRMINGHAM: Now, we have been talking about 19 hypothetical information thus far or general information 20 collected from scientific publications; is that correct, Mr. 21 Johnston? 22 MR. JOHNSTON: Yes, it is. 23 MR. BIRMINGHAM: I would like to turn to some actual 24 data that pertain to the lands within Westlands. In 25 particular, I would like to talk to Farm 1 as it is CAPITOL REPORTERS (916) 923-5447 7278 1 described or depicted on Westlands Water District Exhibits 2 43 through 47. 3 Could you please take a few moments, absent an 4 objection because I am going to ask a question that calls 5 for a narrative, could you please take a few moments and 6 describe for us the information pertaining to Farm Number 1 7 that is contained in Westlands Water District 43 through 47. 8 MR. JOHNSTON: Yes. Westlands Exhibit 43 shows the 9 results of the -- I should say all five of those exhibits, 10 43 through 47, show the results of the soil monitoring 11 program that was undertaken by Westlands following the 12 closure of the drain. 13 MR. BIRMINGHAM: For this particular farm? 14 MR. JOHNSTON: For this particular farm, yes. 15 And Exhibit 43 shows the salinity trend in a table and 16 graphically shows the electrical conductivity of the soil 17 extract in deciSiemens per meter in the five years that 18 soils were sampled. You can see a slight trend upward 19 through 1991, which was during a drought period of limited 20 water supply, and a recovery in 1995, despite the fact that 21 no drainage was provided. 22 This is an average of all of the 40-acre samples, 23 results of the 40-acre samples over 1920 acres. 24 Exhibit 44 is a graphical depiction of the crop yield 25 as affected by salinity for crops that might be grown on CAPITOL REPORTERS (916) 923-5447 7279 1 this soil. 2 And Exhibit 44 shows that for these soils this farm 3 could grow cotton and beets with no impact on the crop 4 yield? It could grow alfalfa and tomatoes with a slight 5 impact of less than 10 percent. If this farmer tried to 6 grow almonds, there would be a substantial impact on crop 7 yield. 8 Exhibit 45 shows the leaching fraction curves that were 9 developed from the salinity results, and it shows a rather 10 uniform leaching fraction of somewhere between 5 and 10 11 percent, based on the slope of the curve, not necessarily 12 the location on the graph. The slope is what is important. 13 And the other thing that is important is that you can 14 see that in 1995, after the drought was over, there was a 15 shift in the leaching fraction to a little less saline 16 condition. 17 Exhibit 46 is the boron trend for the same years and 18 same soil samples. 19 MR. BIRMINGHAM: Exhibit 46 is a table and a chart 20 showing the boron trends? 21 MR. JOHNSTON: Yes. 22 MR. BIRMINGHAM: Go on with your explanation, please, 23 Mr. Johnston. 24 MR. JOHNSTON: The graph at the top of the page, bar 25 graph, is a plot of the data shown at the bottom of the CAPITOL REPORTERS (916) 923-5447 7280 1 page. 2 Finally, Exhibit 47 shows a three-dimensional graph of 3 the impact of boron on the soil samples for the same six 4 selected crops in which boron was analyzed. And you can see 5 from that that cotton, tomato, beets and cow peas could be 6 grown with no impact from the boron concentrations and wheat 7 a slight impact, and beans a little greater impact from the 8 boron. 9 MR. BIRMINGHAM: Just to make sure that we understand 10 this information properly, Mr. Johnston, I would like to go 11 back and ask a few follow-up questions. 12 Look at Westlands Water District 44, which is for Farm 13 Number 1, crop yield as affected by salinity. 14 You are not stating through this information that 15 tomatoes were actually grown on this farm during the period 16 sampled, are you? 17 MR. JOHNSTON: No. I am not stating that any 18 particular crop was grown on any of these farms. 19 MR. BIRMINGHAM: Instead, what you are doing is 20 collecting data concerning salinity concentrations and doing 21 an analysis to determine what those salinity concentrations, 22 what affect those salinity concentrations would have on 23 different crops? 24 MR. JOHNSTON: That's correct. 25 MR. BIRMINGHAM: It is this kind of information that CAPITOL REPORTERS (916) 923-5447 7281 1 could be used by a farmer in Westlands to determine what 2 crop he or she might want to grow? 3 MR. JOHNSTON: That's correct. 4 MR. BIRMINGHAM: So, the person operating on Farm 5 Number 1 wanted to grow a crop that would not be affected by 6 the salinity concentrations in his soil, he could look at 7 this information and conclude that he or she could grow 8 tomatoes, beets or cotton with little impairment resulting 9 from the lack of drainage? 10 MR. JOHNSTON: That's correct. Assuming good farm 11 management in all cases. 12 MEMBER FORSTER: Can I ask a follow-up question? 13 C.O. CAFFREY: Ms. Forster. 14 MEMBER FORSTER: In the scenarios that you have 15 proposed, the farm -- had that been available to your 16 farmer, does he also put into his decision tree what his 17 drainage and impact off of his lands is? Do they consider 18 that? Do they say to themselves, "Well, I can grow cotton, 19 but the drainage will be X and I am steward and I am 20 concerned about impairment that may put, impairment 21 someplace else"? Do they look at the big picture of 22 contributions to the ag drainage problem? Or is it 23 production only? 24 MR. JOHNSTON: I think that there are a lot of things 25 that must go through the mind of the farmer when he makes CAPITOL REPORTERS (916) 923-5447 7282 1 such a decision. In the case of the lands that we are 2 talking about here, they do not have any drainage available 3 other than the natural drainage that occurs. So, they have 4 to be very careful in their management of their water 5 supply. 6 MEMBER FORSTER: Because they will be affected 7 personally by that? 8 MR. JOHNSTON: That's correct. They will contribute to 9 their own problem before they contribute to anyone else's. 10 MEMBER FORSTER: That is a very important point. 11 MR. BIRMINGHAM: Mr. Johnston, I would like you to look 12 at Westlands Exhibit 47. Again, Westlands Water District 47 13 does not depict crops actually grown on Farm Number 1 14 during the period identified in the exhibit; is that correct? 15 MR. JOHNSTON: They may depict crops that were grown, 16 but that is not the purpose of this graph. 17 MR. BIRMINGHAM: Again, the information that is 18 contained in Exhibit 47 would tell a farmer operating on 19 Farm Number 1 that he or she could grow cotton, tomatoes, 20 beets and cow peas with little anticipated affect from boron 21 in the soil if proper management practices were implemented? 22 MR. JOHNSTON: Correct. 23 MR. BIRMINGHAM: I would like to deal with Westlands 24 Water District Exhibits 48 through Exhibit 82. 25 Are Exhibits 48 through 82 graphs and charts depicting CAPITOL REPORTERS (916) 923-5447 7283 1 the same kinds of information for farms other than Farm 2 Number 1? Let me restate the question. 3 Are Exhibits 48 through 82 charts and graphs with the 4 same information for other farms as the information depicted 5 in exhibits 44 through 47 for Farm Number 1? 6 MR. JOHNSTON: Yes. They are data shown for seven 7 additional farms, showing exactly the same information 8 presented to Farm 1. 9 MR. BIRMINGHAM: And the effects of salinity, leaching 10 and boron on these other farms depicted in 48 through 82 are 11 different than the effects for Farm Number 1 as depicted in 12 47 through 48. Is that correct, Mr. Johnston? 13 MR. JOHNSTON: Yes. There are different impacts on 14 those farms based on the data collected from the soils for 15 those farms. 16 MR. BIRMINGHAM: I would like to ask you to look at 17 Westlands Water District 83. Actually, I am going to 18 shorten this up. I am going to ask you about Westlands 19 Water District Exhibits 83 through 88. Westlands Water 20 District Exhibits 83 through 88, are those exhibits which 21 are similar to Exhibits 47 through 48 -- I am sorry. Let me 22 restate the question. 23 Are Exhibits 83 through 88 charts and graphs which are 24 similar to Exhibits 42 through 47 but which contain data 25 based on averages from the eight farms represented by each CAPITOL REPORTERS (916) 923-5447 7284 1 of these exhibits? 2 MR. JOHNSTON: Yes. 3 MR. BIRMINGHAM: Now, Mr. Johnston, I am handing to you 4 Figure 4 from State Water Resources Control Board Staff 5 Exhibit 147. Are you familiar with Figure 4 from State 6 Water Resources Control Board Staff Exhibit 147? 7 MR. JOHNSTON: Yes. 8 MR. BIRMINGHAM: Would you please tell us what is 9 depicted by Figure 4 of State Water Resources Control Board 10 Staff Exhibit 147. 11 MR. JOHNSTON: Figure 4 shows a cross-section of the 12 geological, hydrological cross-section of the San Joaquin 13 Basin from the town of Mendota southwesterly to Interstate 5 14 across the Panoche Fan. 15 The top black line represents the ground surface in 16 that cross-section. 17 The blue line, labeled "Water Table," shows the surface 18 of the perched water table that exists in that area. Above 19 the cross-section it shows the general depth of the perched 20 water table in two sections, zero to five-foot section, 21 generally, from Mendota southwesterly several miles, and 22 then a 5- to 20-foot depth. The depth being the difference 23 in the elevation between the black line and the blue lines. 24 The cross-section also shows the Corcoran clay, which 25 is a gray thick zone, through the cross-section. It shows CAPITOL REPORTERS (916) 923-5447 7285 1 different sediments above and below the Corcoran clay. 2 Sierra Nevada sediments shown in dark blue and coast range 3 alluvium in light blue. In the coast range alluvium there 4 are several clay layers that are not shown on this map, 5 generally four or five at varying depth. Then below the 6 Corcoran clay is what is called the confined aquifer, which 7 is the water that is generally used for groundwater supply 8 in this area. 9 The perched water table. Labeled "Water table" on this 10 cross-section is generally of poor quality, and this is the 11 water that would be collected in subsurface drains. 12 Below that water table there is some unsaturated soil. 13 And sitting on top of the Corcoran clay would be another 14 body of water that would be somewhat poorer quality than the 15 confined aquifer below the Corcoran clay, but a better 16 quality than the perched water table. 17 MR. BIRMINGHAM: I would like to go back, if we may, 18 for a moment, Mr. Johnston, to Westlands Exhibit Number 29, 19 which, I believe, you testified is a map of the district? 20 MR. JOHNSTON: Yes. 21 MR. BIRMINGHAM: Using Westlands Water District 29, 22 would it be possible to describe, generally, the location of 23 the cross-section which is depicted in Figure 4 of State 24 Water Resources Control Board Staff Exhibit 147? 25 MR. JOHNSTON: Yes. CAPITOL REPORTERS (916) 923-5447 7286 1 MR. BIRMINGHAM: Would you please, using Westlands 2 Water District Exhibit 29, describe the location of the 3 cross-section that is depicted in Figure 4 from State Water 4 Resources Control Board Staff Exhibit 147. 5 MR. JOHNSTON: The cross-section shown in Figure 4 of 6 Staff Exhibit 147 would be approximately from the town of 7 Mendota, shown on the top of the map, southwesterly across 8 the San Luis Canal to Interstate 5, roughly along the 9 alignment of Panoche Road, which is labeled on the map, 10 Exhibit 29. 11 MR. BIRMINGHAM: A portion of the cross-section, then, 12 is in an area that was previously served by the subsurface 13 collector drainage system which discharged into San Luis 14 Drain? 15 MR. JOHNSTON: That's correct. 16 MR. BIRMINGHAM: Ms. Minaberrigarai, could you please 17 put up Figure 4. 18 This morning I inadvertently referred to Ms. 19 Minaberrigarai as Ms. Thomas, and I was admonished during 20 the lunch hour that that was wrong, and I apologize. Let 21 the record reflect Ms. Minaberrigarai is now appearing on 22 behalf of Westlands. 23 C.O. CAFFREY: We will note that in the record. 24 Thank you, sir. 25 Mr. Stubchaer is looking over Esther's shoulder to see CAPITOL REPORTERS (916) 923-5447 7287 1 if she can spell it. 2 MR. BIRMINGHAM: Mr. Johnston, going back to Figure 4 3 from State Water Resources Control Board Staff Exhibit 147, 4 there is, as you have described it, a depiction of the 5 perched water table represented by a blue curve on Figure 4; 6 is that correct? 7 MR. JOHNSTON: Yes. 8 MR. BIRMINGHAM: Now, we previously heard testimony, in 9 fact, I think you provided testimony in an earlier phase of 10 this proceeding, concerning a groundwater divide; is that 11 correct? 12 MR. JOHNSTON: Yes. 13 MR. BIRMINGHAM: The groundwater divide, is it depicted 14 on Figure 4 of State Water Resources Control Board Staff 15 Exhibit 147? 16 MR. JOHNSTON: It is not depicted or labeled on Figure 17 4, but it is shown and it would be the point at which the 18 blue line depicting the perched water table is at the 19 highest elevation. On the left side of the cross-section 20 there is a scale that shows sea level and feet above or 21 below sea level up to 600 feet. If you drew a level line 22 across the page to the highest point in elevationwise in the 23 water table, that would be the location of the divide. 24 MR. BIRMINGHAM: As depicted on Figure 4 of State Water 25 Resources Control Board Staff Exhibit 147, there is a CAPITOL REPORTERS (916) 923-5447 7288 1 point, which I am now pointing to on the curve, above the 2 word, above the letters "u" and "v" in the word "alluvium" 3 in which it appears that the groundwater on one side of the 4 letters slopes to the west and on the other side slopes to 5 the west. Is that correct. Mr. Johnston? 6 MR. JOHNSTON: Yes. 7 MR. BIRMINGHAM: Is that the approximate location in 8 this cross-section of the groundwater divide which we have 9 heard reference to? 10 MR. JOHNSTON: Yes, it is. 11 MR. BIRMINGHAM: Now, calling your attention, Mr. 12 Johnston, to the area to the west of the groundwater divide, 13 does this area have a drainage problem? 14 MR. JOHNSTON: As we have defined it, no. 15 MR. BIRMINGHAM: Would you please explain why not. 16 MR. JOHNSTON: Because the water table is substantially 17 below the crop root zone, and the water that's applied in 18 that area moves vertically down and does not saturate the 19 crop root zone. 20 MR. BIRMINGHAM: I am pointing to an area to the east 21 of the groundwater divide, as we have identified it, on 22 Figure 4 off State Water Resources Control Board Staff 23 Exhibit 147 near the location of the town of Mendota. Is 24 that an area which has a drainage problem as we have defined 25 it? CAPITOL REPORTERS (916) 923-5447 7289 1 MR. JOHNSTON: Yes. 2 MR. BIRMINGHAM: Can you please explain why. 3 MR. JOHNSTON: Because the water table is perched near 4 the ground surface as labeled in this Figure 4 as less than 5 five feet, somewhere between zero and five feet. When 6 irrigation water is applied too rapidly or too much water is 7 applied, the water table will build up into the crop root 8 zone causing the drainage problem. 9 MR. BIRMINGHAM: Mr. Johnston, do you recall during the 10 presentation of evidence by the County of Trinity references 11 to maps showing selenium concentrations within areas of 12 Westlands Water District? 13 MR. JOHNSTON: Yes. 14 MR. BIRMINGHAM: You may recall Mr. Stubchaer 15 identified one particular area as "radioactive red"? 16 MR. JOHNSTON: I recall the use of that term. 17 MR. BIRMINGHAM: In terms of where this cross-section 18 depicted by Figure 4 on State Water Resources Control Board 19 Staff Exhibit 147, where is the area of Westlands Water 20 District that was depicted as radioactive red? 21 MR. JOHNSTON: Within this cross-section it would be to 22 the west of the area generally between the San Luis Canal 23 and Interstate 5. 24 So, let me restate that. 25 It would be, generally, in the area between the San CAPITOL REPORTERS (916) 923-5447 7290 1 Luis Canal and Interstate 5 with a little bit being on the 2 downslope side of the San Luis Canal, but not in the area 3 shown below on the 5 to 20 feet of depiction there. Mostly 4 on upslope side of Westlands Water District. 5 MR. BIRMINGHAM: Let me ask you, Mr. Johnston: from a 6 hydrologic perspective is there any way that groundwater 7 resulting from the application of irrigation water on the 8 west side of the groundwater divide could make it flowing 9 laterally to the San Joaquin River? 10 MR. JOHNSTON: You've asked that, is there any way. 11 "Any way" is a very broad term. In general, the water west 12 of the divide is flowing to the west, which is away from the 13 San Joaquin River. 14 Would it ever get there? It would be a very, very long 15 time. It may be hundreds of years. But there are many 16 factors that would influence whether or not it would get 17 there. In general, the answer is no. 18 C.O. STUBCHAER: Mr. Chairman. 19 C.O. CAFFREY: Mr. Stubchaer. 20 C.O. STUBCHAER: I feel compelled to ask a question. 21 Is the water table depicted on the staff exhibit at a 22 specific point in time, a snapshot of a particular time or 23 an average over a period of time? Is it as a result of dry 24 years? Wet years, if you know? 25 MR. JOHNSTON: I would have to say it is probably taken CAPITOL REPORTERS (916) 923-5447 7291 1 over an average of time. It's adopted from USGS data from 2 Belitz and DWR data. 3 So, it is probably not a point in time, but an average 4 over a period of time. It is a depiction, not a precise 5 measurement. And I question whether or not the water table 6 actually slopes back up on the west end as shown on this 7 map. I think it probably just drops off. 8 MR. BIRMINGHAM: Let me ask you this -- 9 C.O. STUBCHAER: Excuse me. 10 Do you know if that depression in the water table west 11 of the San Luis Canal has ever been filled so that it had a 12 positive slope to the northeast? 13 MR. JOHNSTON: I am not sure what you are asking. 14 C.O. STUBCHAER: Is the water table on the left side of 15 the image ever been high enough that it sloped to the 16 northeast instead of having a depression? 17 MR. JOHNSTON: The divide line can shift back and forth 18 with wet years and heavier irrigations or dry years. So, 19 the divide may not always be exactly in that location. It 20 can go up and down. 21 What is crucial in terms of lateral flow is the slope 22 on the water table. And the slope on the water table has 23 been stable for the last 40 years. So the rate of lateral 24 movement is very, very minimal because it is so flat. And 25 the divide could move up slope or downslope a little bit CAPITOL REPORTERS (916) 923-5447 7292 1 with time. I think the water table probably slopes off like 2 that. I don't know if it goes back up. 3 C.O. STUBCHAER: Thanks. 4 MR. BIRMINGHAM: Mr. Johnston, Mr. Stubchaer has just 5 asked you a question that leads me to ask: Do you think, 6 other than your view that the water table probably does not 7 slow back up towards the west, do you think what is 8 contained in Figure 4 is an accurate depiction of the 9 current condition of groundwater in the area depicted by 10 Figure 4 of Staff Exhibit 147? 11 MR. JOHNSTON: I think what is shown on that 12 cross-section is accurate, yes. It's not much detail, but 13 what is shown is as accurate as you can get on that 14 cross-section. 15 MR. BIRMINGHAM: This is a generalized cross-section? 16 MR. JOHNSTON: Yes. 17 MR. BIRMINGHAM: The general information that is 18 contained in the cross-section, notwithstanding that it is 19 based on data collected in 1988 or 1987, it depicts the 20 current conditions? 21 MR. JOHNSTON: Yes. 22 MR. BIRMINGHAM: In generalized terms? 23 MR. JOHNSTON: Yes. 24 C.O. CAFFREY: Mr. Birmingham, would this be an 25 opportune time to take a break? CAPITOL REPORTERS (916) 923-5447 7293 1 MR. BIRMINGHAM: This would be an opportune time to 2 take a break. 3 C.O. CAFFREY: Let's do that and come back in about 4 twelve minutes. 5 (Break taken.) 6 C.O. CAFFREY: We are back and Mr. Birmingham is in 7 his rebuttal case. 8 MR. BIRMINGHAM: Mr. Johnston, I handed to you a 9 combination map, cross-section labeled generalized 10 hydrogeology of Central Panoche Fan, which I am going to 11 ask, then, to be marked Westlands next in order, which I 12 believe would be Westlands Exhibit 96. 13 Is that correct, Mr. Howard? 14 MR. HOWARD: Yes, that is correct. 15 MR. BIRMINGHAM: Mr. Johnston, have you previously seen 16 Westlands Water District 96? 17 MR. JOHNSTON: Yes. 18 MR. BIRMINGHAM: Would you please briefly describe what 19 is depicted on Westlands Exhibit 96. 20 MR. JOHNSTON: Westlands Exhibit 96 is a 21 three-dimensional cross-section through a portion of the 22 west side of the San Joaquin Valley, approximately on the 23 same alignment as Figure 4 of Staff Exhibit 147. 24 The city of Mendota is at the bottom of the 25 cross-section, about in the center, adjacent to the yellow CAPITOL REPORTERS (916) 923-5447 7294 1 area labeled "Westlands Water District." The cross-section 2 extends further east than Figure 4 of Staff Exhibit 147, 3 from the west of the city of Mendota is approximately in the 4 same alignment and the same cross-section. 5 You discussed the location of the groundwater divide. 6 That is shown on this exhibit, Westlands 96, as a dotted 7 line from the point of cross-section north around the 8 northern boundary of the Westlands Water District. The 9 exhibit, Westlands 96, also shows the potentiometric 10 contours, which are lines of equal elevation of water 11 surface in feet above mean sea level. These lines indicate 12 the surface of the perched groundwater table, and the slope 13 of lines would indicate the direction of lateral movement, 14 if there was any lateral movement at all. 15 Also shown on this cross-section are small red arrows 16 which depict the direction of groundwater movement. I 17 should point out that the substantial difference in scale 18 between the horizontal and vertical scales on this 19 cross-section, the horizontal scale is approximately one 20 inch for two miles. But the vertical scale is about one 21 inch for 500 feet. So, there is a substantial difference in 22 the scale shown on this map between vertical and horizontal. 23 Now, the small red arrows depict the direction of 24 groundwater movement, and as I said, if there is movement -- 25 and the important thing to note is the vertical movement of CAPITOL REPORTERS (916) 923-5447 7295 1 groundwater under the irrigated area within Westlands Water 2 District. 3 The Corcoran clay formation is also shown on this 4 cross-section, but the other clay strata above the Corcoran 5 clay are not shown. 6 MR. BIRMINGHAM: Does Westlands Exhibit 96 depict the 7 level of the water table as part of the cross-section? 8 MR. JOHNSTON: Yes. 9 MR. BIRMINGHAM: How is that represented on Westlands 10 Water District 96? 11 MR. JOHNSTON: It is represented as a black line with 12 two small triangles pointed to the water table. 13 MR. BIRMINGHAM: Now, I believe you testified that the 14 cross-section, which is depicted on Westlands Water District 15 96, is approximately the same location as the cross-section 16 depicted in Figure 4 of State Water Resources Control Board 17 Staff Exhibit 147? 18 MR. JOHNSTON: That's correct. 19 MR. BIRMINGHAM: Does the lateral movement of 20 groundwater depend upon the slope of the water table? 21 MR. JOHNSTON: Yes. The slope of the water table 22 causes the head differences which cause the flow to move. 23 The permeability of the soil through which the water is 24 moving also is a major factor in how fast and how much water 25 will be moved. CAPITOL REPORTERS (916) 923-5447 7296 1 MR. BIRMINGHAM: I know you've been attending virtually 2 all of these hearings. Were you present on the day that an 3 engineer from the Regional Water Quality Control Board 4 testified about the slope of the groundwater table near the 5 San Joaquin River? 6 MR. JOHNSTON: I was here that day. 7 MR. BIRMINGHAM: I believe, of course the record will 8 speak for itself, but I believe that engineer testified to 9 the effect that the slope of the groundwater table near the 10 San Joaquin River is nearly flat? 11 MR. JOHNSTON: That is correct. I believe that this 12 cross-section shows that. 13 MR. BIRMINGHAM: Well, that takes me to my question. 14 This cross-section indicates that there is little slope to 15 the groundwater table near the eastern boundary of Westlands 16 Water District? 17 MR. JOHNSTON: Yes. 18 MR. BIRMINGHAM: And how would that affect the movement 19 of groundwater, the lateral movement of groundwater, near 20 the eastern boundary of Westlands Water District? 21 MR. JOHNSTON: The flatness of the water table means 22 that there is less head to drive the water laterally, and 23 that is why the arrows are mostly vertical in this case. 24 What is not shown on here is the tightness of the soils 25 that are in the area below the 42,000-acre area in Westlands CAPITOL REPORTERS (916) 923-5447 7297 1 that was formerly provided drainage. This is an area with 2 very heavy clay soils and the water movement, both laterally 3 and vertically, is very slow. 4 MR. BIRMINGHAM: Are those dense soils one of the 5 factors that contributes to the drainage problem as we have 6 described it? 7 MR. JOHNSTON: Yes. 8 MR. BIRMINGHAM: And that is because the dense soils 9 impair the downward movement of groundwater? 10 MR. JOHNSTON: They impair the movement in all 11 directions. 12 MR. BIRMINGHAM: Prior to the afternoon recess, in 13 response to a question I asked and followed up by, I 14 believe, Mr. Stubchaer, you testified that in some 15 circumstances water on the western side of the groundwater 16 divide could potentially move to the San Joaquin River. 17 Do you recall that? 18 MR. JOHNSTON: Yes. 19 MR. BIRMINGHAM: I believe you testified that it could 20 be hundreds of years? 21 MR. JOHNSTON: Yes. 22 MR. BIRMINGHAM: Could you give us a more precise 23 estimate of how long it would take the water from the west 24 side of the groundwater divide to move in an easterly 25 direction towards the San Joaquin River? CAPITOL REPORTERS (916) 923-5447 7298 1 MR. JOHNSTON: I looked at a United States Geological 2 Survey report entitled "Groundwater Flow in Soluble Water to 3 the Drain Laterals, Western San Joaquin Valley, Number Two 4 Quantitative Hydrologic Assessment." This is a publication 5 that was written by John Fio and Steve Deverel, dated 1990. 6 In that publication they have calculated, simulated 7 groundwater flow paths to drain lines. And in their 8 calculations in sand they calculate that it will take 9 approximately 340 years to go a mile in a 10- to 20-foot 10 depth of strata. 11 We are talking here, in this case, the divide is 12 somewhere between eight to ten miles from the San Joaquin 13 River. So, it would be more than a thousand years for a 14 particle of water to get from west of the divide to the San 15 Joaquin River. 16 MR. BIRMINGHAM: That assumes that the slope of the 17 groundwater table in that area changes to a point where the 18 water will move in a easterly direction? 19 MR. JOHNSTON: That's correct. Also, in their 20 calculations they were using more coarse sand, more coarse 21 materials than the soils that exist in this area. 22 MR. BIRMINGHAM: May I have a moment? 23 Mr. Johnston, has very kindly reminded me that I wanted 24 to ask me a question about another subject related to 25 Westlands Water District Exhibit 96. CAPITOL REPORTERS (916) 923-5447 7299 1 Mr. Johnston, you have indicated in Westlands Water 2 District Exhibit 96 that there are potentiometric contour 3 lines, which are lines of equal elevation of potentiometric 4 surface in feet above mean sea level of the groundwater 5 table; is that correct? 6 MR. JOHNSTON: Yes. 7 MR. BIRMINGHAM: In the area of the groundwater divide 8 the potentio -- the elevation of the groundwater is 9 approximately 225 feet above sea level; is that correct? 10 MR. JOHNSTON: Yes. 11 MR. BIRMINGHAM: As we move in a easterly direction, 12 there are contour lines that show that there is a -- that 13 the surface of the groundwater decreases, the elevation of 14 the surface of the groundwater decreases to a point well 15 east of the San Joaquin River to 80 feet above sea level; is 16 that correct? 17 MR. JOHNSTON: Yes, that is correct. 18 MR. BIRMINGHAM: Can you explain to us what is depicted 19 by the concentric contour lines on the east side of the area 20 depicted in Westlands Water District Exhibit 96. 21 MR. JOHNSTON: The 80, 90 and 100 foot contours there 22 represent a groundwater depression that is caused by pumping 23 of groundwater for agricultural crops in an area where there 24 is no surface water supply available. 25 MR. BIRMINGHAM: Does that contribute to the movement CAPITOL REPORTERS (916) 923-5447 7300 1 of groundwater on the east side of the San Joaquin River? 2 MR. JOHNSTON: Yes, it would. As the pumping 3 depression gets deeper, it would increase the gradient and 4 cause a more rapid movement of groundwater into that 5 depressed area. 6 MR. BIRMINGHAM: Mr. Johnston, I am handing to you, and 7 I have distributed to the Board and now distributing to the 8 parties, a map which has been marked for identification as 9 Westlands next in order, 97. 10 Do you have a copy of Westlands Exhibit 97 in front of 11 you? 12 MR. JOHNSTON: Yes, I do. 13 MR. BIRMINGHAM: Are you familiar with the exhibit, 97? 14 MR. JOHNSTON: Yes. 15 MR. BIRMINGHAM: Can you please explain to the Board 16 what is depicted in Westlands Exhibit 97. 17 MR. JOHNSTON: Westlands Exhibit 97 is labeled 18 "Location Map of Various Irrigation Water Districts in 19 Relation to Westlands Water District." It shows several 20 things besides the location of different water districts. 21 It shows the boundary of the Westlands Water District. It 22 shows the location of the 42,000-acre area of Westlands that 23 was formerly drained by the drainage collector system. And 24 in that area it also depicts the location of the collector 25 drains and the on-farm drains that were in the area. It CAPITOL REPORTERS (916) 923-5447 7301 1 shows the groundwater divide as a thick black line with red, 2 and it shows a number of red arrows, which indicate the 3 approximate direction of groundwater movement if groundwater 4 was moving, based on the gradient, on the water table. 5 The red arrows do not represent the speed nor the 6 quantity of water that would move, but merely the direction 7 the groundwater might move. 8 MR. BIRMINGHAM: Now, you said the direction of the 9 groundwater might move if it was moving laterally; is that 10 correct? 11 MR. JOHNSTON: That's correct. 12 MR. BIRMINGHAM: Is the reason you said, "If it was 13 moving laterally," because, generally, the water, 14 groundwater, in the area depicted in Westlands Water 15 District Exhibit 97 moves vertically as opposed to 16 laterally? 17 MR. JOHNSTON: In general, the gradient is downward 18 more than lateral, yes. That is due to the soil being very 19 heavy here and at least the surface soil, top 20 feet of the 20 soil. 21 MR. BIRMINGHAM: I believe in other phases of this 22 hearing you have been asked this question before, but I will 23 ask it again. 24 Does Westlands Water District discharge drain water 25 into the San Joaquin River? CAPITOL REPORTERS (916) 923-5447 7302 1 MR. JOHNSTON: No. 2 MR. BIRMINGHAM: Does Westlands Water District 3 discharge drain water anywhere outside of its boundaries? 4 MR. JOHNSTON: No. 5 MR. BIRMINGHAM: Could you explain why? 6 C.O. CAFFREY: Mr. Brown has a question. Excuse 7 me, Mr. Birmingham. 8 MEMBER BROWN: Drain water, are you talking about tile 9 water only or tile and tail? 10 MR. BIRMINGHAM: That is a very good point, Mr. Brown, 11 thank you. 12 Mr. Johnston, let's focus first on tile water. Does 13 Westlands Water District discharge any tile water outside of 14 its boundaries? 15 MR. JOHNSTON: I use the term "subsurface drainage 16 water" instead of tile water. 17 MR. BIRMINGHAM: Mr. Brown, who is a Member of the 18 Board, wants to use tile water; that is what we will use. 19 C.O. CAFFREY: From now on it is tile water. 20 MR. BIRMINGHAM: May I interject, I was once examining 21 an expert witness -- 22 C.O. CAFFREY: Off the record? 23 MR. BIRMINGHAM: On the record or off the record, 24 doesn't make any difference. 25 I was examining an expert witness in front of a CAPITOL REPORTERS (916) 923-5447 7303 1 judge. And the judge, as Board Member Brown just did of Mr. 2 Johnson, asked a question of the expert. And the expert got 3 a very serious look on his face and said, "Your Honor, this 4 is very complicated and I will try to explain it to you. I 5 am not sure you will be able to understand it." 6 C.O. CAFFREY: That was his last appearance as an 7 expert witness. 8 MR. BIRMINGHAM: For me. 9 Take that to heart, Mr. Johnston. 10 C.O. CAFFREY: An indirect instruction to the witness, 11 himself. 12 MR. BIRMINGHAM: Let's talk about the tile water. 13 MR. JOHNSTON: There is no tile water or subsurface 14 drainage water escaping Westlands Water District, to my 15 knowledge, because all of the drains have been plugged and 16 taken out of commission. 17 MR. BIRMINGHAM: When you say "to your knowledge," Mr. 18 Johnston, you are very familiar with the use of water and 19 what is going on in Westlands Water District? 20 MR. JOHNSTON: That's correct. 21 MR. BIRMINGHAM: Let's talk about tailwater. What is 22 your understanding of the term "tailwater"? 23 MR. JOHNSTON: My understanding of what tailwater is? 24 MR. BIRMINGHAM: When we say tile water, you understand 25 that term to be subsurface drainage; is that correct? CAPITOL REPORTERS (916) 923-5447 7304 1 MR. JOHNSTON: Yes. 2 MR. BIRMINGHAM: When you use the term "tailwater," 3 what do you understand that to mean? 4 MR. JOHNSTON: That is surface runoff from applied 5 irrigation water. 6 MR. BIRMINGHAM: To your knowledge, does Westlands 7 Water District discharge surface runoff? 8 MR. JOHNSTON: Westlands Water District has a policy 9 and has always had a policy that every farmer must control 10 his own tailwater on his own ranch. So, the policy is that 11 no tailwater escapes from farm to farm, let alone outside 12 the boundaries of the district. 13 MEMBER BROWN: Thank you. 14 MR. BIRMINGHAM: Thank you, Mr. Brown. 15 C.O. CAFFREY: Ms. Forster. 16 MEMBER FORSTER: If there is no tile water or 17 subsurface drainage happening because the drains have been 18 plugged, where does it go? What happens? 19 MR. JOHNSTON: Down. By careful water management they 20 have been able to control the water levels within the -- so 21 that they can continue to farm. They maintain the water 22 levels below the crop root zone to the extent that they can, 23 by continuing to irrigate. When they irrigate, the water 24 table raises. But it gradually seeps downward again. 25 The problem is salt buildup. And without being able to CAPITOL REPORTERS (916) 923-5447 7305 1 leach properly. And if you will examine some of those 2 graphs, the exhibits that I presented, you can see that in 3 some of the farms there is a salt buildup and there is an 4 impact on the crops that they are trying to grow. 5 C.O. CAFFREY: Mr. Brown. 6 MEMBER BROWN: Follow-up to Ms. Forster's question. 7 Has Westlands, kind of like Panoche and Broadview, been 8 converting their water application systems over from furrow 9 flood irrigation to sprinkler irrigation to improve the 10 irrigation efficiency and what would normally occur with 11 overapplication to furrow application? 12 MR. JOHNSTON: I would say in Westlands there has been 13 a substantial conversion of at least preirrigations from 14 furrow irrigation to sprinkler irrigation to reduce the 15 applied water during preirrigation. But Westlands, I think 16 you know, has a very short water supply in terms of its 17 surface water supply. They average less than two and a half 18 acre-feet per acre supply when most of the crops use two and 19 a half to three acre-feet. So, trying to continue with or 20 improve irrigation efficiencies is not basically the reason 21 for changing irrigation techniques. It is to get better 22 field distribution and to improve the irrigation efficiency 23 during the preirrigation. 24 MEMBER BROWN: That was the question. 25 MR. BIRMINGHAM: Is it correct, Mr. Johnston, that CAPITOL REPORTERS (916) 923-5447 7306 1 Westlands, even before plugging the drains, had a 2 conservation program? 3 MR. JOHNSTON: Yes. Westlands started back in as early 4 as 1980 in providing irrigation management information to 5 all of its growers through a weekly mailout of crop water 6 use guides and consumptive use predictions. 7 MR. BIRMINGHAM: Do you know the approximate irrigation 8 efficiency within Westlands Water District? 9 MR. JOHNSTON: Well, there is no single number for 10 irrigation efficiency within Westlands. You can come up 11 with a number but it wouldn't mean anything. It is close to 12 100 percent because the water supply is inadequate to meet 13 the crop consumptive use. But individual irrigations -- 14 MR. BIRMINGHAM: Mr. Johnston, probably the only thing 15 worse than telling the judge that he is stupid is telling 16 the lawyer that he is stupid. 17 MR. JACKSON: However, you are more likely to be 18 right. Hypothetically, of course. 19 C.O. CAFFREY: We have been here a long time, haven't 20 we? 21 Mr. Brown, you had something, sir. 22 MEMBER BROWN: I believe the crop reduction, 100 23 percent of crop reduction, similar to the soil salinity 24 relies upon the quantity of water that you apply towards the 25 consumptive use. If you apply less than the optimum CAPITOL REPORTERS (916) 923-5447 7307 1 consumptive use, you would have less in optimum crop 2 reduction; is that correct? 3 MR. JOHNSTON: Yes. 4 MEMBER BROWN: Where do you get your other water to 5 meet your 100 percent requirement, so you have optimum crop 6 reduction? 7 MR. JOHNSTON: Some of the farmers have groundwater 8 wells. They would pump their groundwater wells. However, 9 groundwater is more saline than the surface water. So when 10 they mix -- 11 MEMBER BROWN: The application rate of 2.1, which is in 12 the contract I believe, the difference between the surface 13 application rate and the crop requirement plus irrigation 14 efficiency is made by groundwater and tailwater; is that 15 correct? 16 MEMBER BROWN: Well, yes. Each farmer would reuse 17 their own tailwater. But some of the farmers do not have 18 access to groundwater. Therefore, if their water supply is 19 reduced, they have to reduce acreage. 20 MR. BIRMINGHAM: Mr. Johnston, has Westlands 21 historically had a program designed to acquire supplemental 22 water supplies on an annual basis? 23 MR. JOHNSTON: Yes. 24 MR. BIRMINGHAM: How would you characterize the efforts 25 of Westlands to obtain supplement water supplies on an CAPITOL REPORTERS (916) 923-5447 7308 1 annual basis? 2 MR. JOHNSTON: I don't think I can characterize that 3 accurately because most of the water acquisition programs 4 have been developed since I left Westlands. 5 MR. BIRMINGHAM: Are you generally aware that Westlands 6 has an aggressive program of acquiring supplemental water 7 supplies? 8 MR. JOHNSTON: Yes. 9 MR. BIRMINGHAM: Mr. Johnston, so that Mr. Jackson 10 doesn't feel like we've forgotten why we are here, I would 11 like to go back and ask you a few follow-up questions 12 concerning your view about the use of water in Westlands 13 Water District. 14 C.O. CAFFREY: Excuse me. 15 C.O. STUBCHAER: Mr. Birmingham, are you leaving this 16 exhibit now? 17 MR. BIRMINGHAM: Apparently not. 18 C.O. STUBCHAER: Were you intending to leave the 19 exhibit? 20 MR. BIRMINGHAM: Yes. 21 C.O. STUBCHAER: I have a question on this exhibit. 22 Due west of the city of Mendota is a loop in the 23 California Aqueduct, kind of lower right-hand portion of 24 that exhibit, and it shows water, the direction of 25 horizontal motion of groundwater toward a central point, and CAPITOL REPORTERS (916) 923-5447 7309 1 a depression just above the word "California" and the word 2 "Panoche Water District." Do you see that, Mr. Johnston? 3 MR. JOHNSTON: Yes. 4 C.O. STUBCHAER: If water is flowing from all 5 directions toward -- to a point in the depression in the 6 groundwater table, where does that water go? Is it pumped 7 out? Does it go through deep percolation through the 8 Corcoran clay or what? 9 MR. JOHNSTON: You are making an assumption that there 10 is water, in fact, moving in that direction? 11 C.O. STUBCHAER: Yes, I am. 12 MR. JOHNSTON: From the -- will you put up Figure 4. 13 The slope on the water table, the point you are looking 14 at is here on the groundwater divide where it makes that 15 loop; is that correct? 16 C.O. STUBCHAER: It is from the groundwater divide 17 toward the word "California." 18 MR. JOHNSTON: At that point the water table is 19 probably ten feet below the ground surface, and it slopes 20 rapidly off to the west. And so the water is going 21 vertically down through the soil. 22 C.O. STUBCHAER: And then where? When it reaches the 23 bottom of the soil where does it go? 24 MR. JOHNSTON: It is piling up here in the coast range 25 alluvium. CAPITOL REPORTERS (916) 923-5447 7310 1 C.O. STUBCHAER: If you keep water in a bowl long 2 enough, isn't the bowl going to fill? 3 MR. JOHNSTON: It could fill up if we don't ever do 4 anything else. Eventually it might fill up. It is going to 5 be a while. There is a lot of space out there on the 6 ground. 7 Now, they are pumping, and there are hundreds and 8 hundreds of wells going through the Corcoran clay. So, the 9 water is being moved up and there are a lot of wells that 10 are perforated both above and below the Corcoran clay. So 11 there is a movement between aquifers. When the heads reduce 12 below the Corcoran, there is downward movement. So you get 13 an exchange of water from above and below the Corcoran. And 14 as you get out here to I-5, those landowners don't have any 15 wells because there is no water down there. 16 C.O. STUBCHAER: That answers the question, like a 17 leaky aquitard. Thanks. 18 C.O. CAFFREY: Ms. Forster, you have a question? 19 MEMBER FORSTER: Mr. Stubchaer tried to help me 20 understand this. When you see the California Aqueduct on 21 your map, does that mean drainage -- are there any outlets 22 into the California Aqueduct where drainage might go? 23 MR. JOHNSTON: Are you asking me if there are drains 24 that drain into the aqueduct? No, there are not. There are 25 a few surface inlets for west side streams further south CAPITOL REPORTERS (916) 923-5447 7311 1 than shown on this map. But there are no drains that I am 2 aware of that are discharged into the aqueduct. 3 Since the Metropolitan Water District uses this for 4 drinking water, they wouldn't look favorable on that. 5 MEMBER FORSTER: Is it your understanding that some 6 places along he aqueduct there is drainage into the 7 aqueduct, maybe not from your area but from other areas? 8 MR. JOHNSTON: There are surface drains. When the west 9 side streams flood and the operators of the aqueduct think 10 that the water ponded behind the aqueduct is going to 11 overtop the embankment, they will open those outlets and let 12 surface water into the aqueduct. But those openings are 13 further south than the area depicted on this map, on 14 Westlands 97. 15 C.O. STUBCHAER: Runoff? 16 MR. JOHNSTON: Storm runoff, correct. 17 C.O. CAFFREY: Thank you, Mr. Birmingham. Please 18 continue, sir. 19 MR. BIRMINGHAM: Based upon the review of the data 20 that we have gone over here this afternoon, Mr. Johnston, 21 and when I say the data that we have reviewed here this 22 afternoon, I am talking about the data that are contained in 23 Westlands Water District Exhibits 31 through 88 and 24 information contained on Westlands Water District Exhibits 25 96 and 97, based upon your review of those data, have you CAPITOL REPORTERS (916) 923-5447 7312 1 formed an opinion regarding the continued productivity of 2 agricultural lands within Westlands Water District which 3 were previously served by the subsurface collector drain 4 system? 5 MR. JOHNSTON: Yes. 6 MR. BIRMINGHAM: What is your opinion? 7 MR. JOHNSTON: I think with careful water management 8 that most of this land can be very productive for the 9 growing of certain crops for some time into the future. 10 MR. BIRMINGHAM: Do you have an opinion as to whether 11 the use of water, imported surface water to irrigate lands 12 within Westlands Water District, constitutes waste and 13 unreasonable use? 14 MR. JOHNSTON: Yes. 15 MR. BIRMINGHAM: What is your opinion? 16 MR. JOHNSTON: I think imported water in Westlands 17 Water District is a beneficial use because you can grow very 18 -- the land is very productive with that water, and without 19 the water it's not productive. 20 MR. BIRMINGHAM: Is there anything else upon which you 21 base your opinion that the use of water in Westlands Water 22 District does not constitute waste and unreasonable use? 23 MR. JOHNSTON: The fact that the district has a very 24 efficient distribution system. The farmers are efficient, 25 and that they produce crops with a minimum waste of water, CAPITOL REPORTERS (916) 923-5447 7313 1 is part of the reason I am concluding that. 2 MR. BIRMINGHAM: As part of the basis of your opinion, 3 do you consider the fact that Westlands Water District does 4 not discharge drain water, either tile drain or tailwater, 5 outside of its boundaries? 6 MR. JOHNSTON: Yes. 7 MR. BIRMINGHAM: How does that affect your opinion? 8 MR. JOHNSTON: That is another factor that would make 9 it reasonable that the use of water in Westlands Water 10 District is a beneficial use of that water. 11 MR. BIRMINGHAM: If the Central Valley Project supply 12 of water were terminated to the lands in Westlands Water 13 District, do you have any idea of the potential impact? 14 MR. JOHNSTON: I think the potential impact, it would 15 be severe. Only available water supply would be groundwater 16 supply that is substantially poorer quality than surface 17 water, and that would impact the productivity of the land. 18 And if the farmers started to pump groundwater at the rates 19 that they pumped water before, the surface water supply was 20 available, subsidence would again take place and there would 21 be an insufficient supply to irrigate all of the lands that 22 currently are in production. 23 MR. BIRMINGHAM: Will taking lands out of production 24 in Westlands Water District solve the drainage problem on 25 those lands? CAPITOL REPORTERS (916) 923-5447 7314 1 MR. JOHNSTON: No. 2 MR. BIRMINGHAM: Will taking lands out of production 3 affect the levels of salinity in the San Joaquin River? 4 MR. JOHNSTON: No. 5 MR. BIRMINGHAM: Why not? 6 MR. JOHNSTON: Because the water from that Westlands 7 Water District doesn't get to the San Joaquin River. 8 MR. BIRMINGHAM: I have no further questions. 9 C.O. CAFFREY: Thank you very much, Mr. Birmingham. 10 By a showing of hands, which of the parties wish to 11 cross-examine Mr. Johnston? 12 Mr. Stubchaer is going to assist me. Mr. Jackson, Mr. 13 Nomellini, Mr. Herrick, Mr. Sexton, Mr. Minasian, Ms. 14 Cahill. 15 We have Mr. Jackson, Mr. Herrick, Mr. Sexton, Mr. 16 Minasian, Ms. Cahill, Ms. Harrigfeld. 17 MR. BIRMINGHAM: No, Mr. Johnston, it is perfectly okay 18 to tell the following lawyers that they are stupid. 19 C.O. CAFFREY: I didn't hear that. 20 MR. JOHNSTON: That's okay. 21 MR. JACKSON: He just told him to tell the truth. 22 C.O. CAFFREY: All right. It's been a long day. 23 Okay. I just got it. Mr. Stubchaer just told me the 24 line I missed. 25 Thank you. CAPITOL REPORTERS (916) 923-5447 7315 1 Let's start with Mr. Jackson. 2 We are going to adjourn at 4:00 today. So, not that 3 that is -- just for everybody's general knowledge. That 4 puts no limit on Mr. Jackson, by the way. He may need more 5 time than that. We will come back when we next -- actually, 6 we will be back next week for the continuation of the 7 hearing because tomorrow is a special meeting on the Delta 8 to consider the adoption of the extension of 95-6. 9 Good afternoon, Mr. Jackson, sir. 10 MR. JACKSON: Good afternoon, Mr. Chairman. 11 ---oOo--- 12 CROSS-EXAMINATION OF 13 REBUTTAL TESTIMONY OF WESTLANDS WATER DISTRICT 14 BY REGIONAL COUNCIL OF RURAL COUNTIES 15 BY MR. JACKSON 16 MR. JACKSON: Would you mind putting up this particular 17 document. 18 Mr. Johnston, you were a member of the Central Valley 19 Regional Water Quality Control Board at one point? 20 MR. JOHNSTON: That's correct. 21 MR. JACKSON: How long were you there? 22 MR. JOHNSTON: Six years. 23 MR. JACKSON: During that six years, was the salinity 24 level of the San Joaquin River a topic that you spent time 25 with at the Board? CAPITOL REPORTERS (916) 923-5447 7316 1 MR. JOHNSTON: No. 2 MR. JACKSON: In the time that you were -- when were 3 you at the Board, sir, Regional Board? 4 MR. JOHNSTON: If I can look at my resume, I can give 5 you my exact dates. 6 1969 to 1975. 7 MR. JACKSON: In those years, that was before the 8 Kesterson situation? 9 MR. JOHNSTON: Yes. 10 MR. JACKSON: When did you first become aware of the 11 deformed birds at Kesterson? 12 MR. JOHNSTON: It was about 1983. 13 MR. JACKSON: Had there been any indication prior to 14 that time that there was a problem with the salinity levels 15 in the San Luis Drain? 16 MR. JOHNSTON: With the salinity levels in the San Luis 17 Drain? 18 MR. JACKSON: Yes. 19 MR. JOHNSTON: The salinity levels in the San Luis 20 Drain were always anticipated to be high because the only 21 water conveyed in the drain was subsurface drainage water 22 from Westlands, and that is what we anticipated having, was 23 high saline drainage water. 24 MR. JACKSON: Now, the drain at that point had a 25 terminus at Kesterson? CAPITOL REPORTERS (916) 923-5447 7317 1 MR. JOHNSTON: That's correct. Excuse me, you are 2 talking about which period? 3 MR. JACKSON: 1983. 4 MR. JOHNSTON: Okay. 5 MR. JACKSON: And it was exclusively to carry Westlands 6 drainage; is that right? 7 MR. JOHNSTON: Westlands subsurface drainage water, 8 correct. 9 MR. JACKSON: You have indicated that you do not 10 believe there is a problem with drainage water leaving 11 Westlands at the present time; is that correct? 12 MR. JOHNSTON: I said that I do not believe that there 13 is any drainage water leaving Westlands. 14 MR. JACKSON: I believe you indicated that the farmers 15 in Westlands could farm their land for, I think you said, a 16 substantial period of time in the future? 17 MR. JOHNSTON: Yes. 18 MR. JACKSON: Without problems? 19 MR. JOHNSTON: Providing they have a water supply. 20 MR. JACKSON: Therefore, could I then come to the 21 conclusion that there is no need for the drain? 22 MR. JOHNSTON: No. You couldn't come to that 23 conclusion. 24 MR. JACKSON: Why is there a need for the drain if 25 there is no drainage water leaving Westlands? CAPITOL REPORTERS (916) 923-5447 7318 1 MR. JOHNSTON: Because the soils will eventually become 2 salty enough that there will be very limited crops that 3 could be grown there. This is a long-term problem. But 4 drainage needs to be provided so that these soils can be -- 5 so the maximum production could be obtained from these soils 6 and that there could be more flexibility as to the types of 7 crops that could be grown. 8 MR. JACKSON: So the building of the drain would do no 9 good for anybody -- would do no benefit to anyone else in 10 California except the farmers in Westlands? 11 MR. JOHNSTON: No, that is not true. 12 MR. JACKSON: How would it benefit the rest of 13 California? 14 MR. JOHNSTON: Because other areas with a drainage 15 problem would be able to use the drain if it is constructed 16 and made available by the Bureau of Reclamation. 17 Add one other thing, and that is that the Bureau -- the 18 drain as authorized now is authorized for use by the San 19 Luis unit of the CVP, which includes Westlands, Panoche and 20 San Luis Water District. The Bureau could also contract to 21 allow others to use the drain. 22 MR. JACKSON: It was never the intention at the time 23 that the drain was authorized that others, besides 24 Westlands, use it, was there? 25 MR. JOHNSTON: There was a lot of discussion from time CAPITOL REPORTERS (916) 923-5447 7319 1 to time about the State building the drain and allowing 2 areas outside of Central Valley Project service area to use 3 the drain, yes. 4 MR. JACKSON: But there was no authorization in the 5 legislation for others to use the drain, was there? 6 MR. BIRMINGHAM: Objection, contrary to the 7 evidence. I believe that the San Luis Act has been 8 introduced, Section IV of the San Luis Act authorizes use of 9 San Luis Drain by entities outside of the San Luis unit. 10 MR. JACKSON: I was asking him if he knows. 11 C.O. CAFFREY: He was trying to establish that very 12 fact, was he not, or did I misunderstand? 13 MR. JACKSON: I was asking him what the fact was. 14 MR. BIRMINGHAM: I'm objecting because the existing 15 evidence -- it misstates the evidence. The evidence is that 16 in 1960, when Congress authorized the San Luis unit, as part 17 of the authorization act, Section V, it authorized the 18 Bureau to construct the drain with capacities sufficient 19 enough to allow entities other than the San Luis unit to use 20 the San Luis Drain. 21 MR. JACKSON: If Mr. Birmingham would like to testify, 22 I'd like to cross-examine him. 23 MR. BIRMINGHAM: The San Luis Act is already in 24 evidence, and Mr. Jackson's question misstates the 25 evidence. CAPITOL REPORTERS (916) 923-5447 7320 1 C.O. CAFFREY: I don't think I understand how it does, 2 but maybe I need to listen to the question again. Mr. 3 Jackson, if you want to ask the question again so I could 4 hear it or do you want to -- I will allow Mr. Johnston to 5 answer if -- 6 MR. JACKSON: If he can, I would like an answer. 7 C.O. CAFFREY: Can you answer the question, Mr. 8 Johnston, although it has been answered. 9 MR. JOHNSTON: I would like him to state it again. 10 C.O. CAFFREY: All right. 11 MR. JACKSON: Did the authorization for the San Luis 12 Drain authorize other parties to discharge to the drain? 13 MR. JOHNSTON: I believe the act authorized the Bureau 14 to contract with others outside of the CVP service area. 15 MR. JACKSON: That was left to the Bureau's choice? 16 MR. JOHNSTON: I believe so. 17 MR. JACKSON: Were any other parties, to your 18 knowledge, named in the authorization? 19 MR. JOHNSTON: I don't recall. 20 MR. JACKSON: Calling your attention to the exhibit on 21 the screen, and there is not a number so -- 22 MR. JOHNSTON: It was Westlands 97. 23 MR. JACKSON: There are a number of red arrows on that 24 exhibit. 25 MR. JOHNSTON: Yes. CAPITOL REPORTERS (916) 923-5447 7321 1 MR. JACKSON: Did you put those red arrows there? 2 MR. JOHNSTON: I helped. I don't know if I drew them. 3 MR. JACKSON: Now, they agree all pointed, or the 4 majority of them, north of the town of Mendota are pointed 5 east, are they not? 6 MR. JOHNSTON: No. There is a north arrow on the map, 7 which is shown on the right side of the map. So the arrows, 8 basically, are pointed in all directions from north. 9 MR. JACKSON: Let's start, then, at the left side of 10 the exhibit. What direction are the red arrows pointed? 11 MR. JOHNSTON: They are pointed east, roughly. 12 MR. JACKSON: Follow that until you find the first one 13 that is not pointed east. 14 MR. JOHNSTON: You go down approximately to the 15 Merced/Fresno County line and they then shift to a northerly 16 direction and a southerly direction, depending on which side 17 of the groundwater divide you are on. 18 MR. JACKSON: So we don't get in contest here, would it 19 be fair to say that beyond the Merced County line the 20 majority of them to the east of the groundwater divide, that 21 you have placed in a darker color, point to the northeast? 22 MR. JOHNSTON: The ones west of the Broadview Water 23 District point north. And as you move easterly along the 24 groundwater divide, those on the north side of the divide 25 shift to an easterly direction. CAPITOL REPORTERS (916) 923-5447 7322 1 By the time you get to the northern boundary of 2 Westlands Water District, they are pointed easterly. 3 MR. JACKSON: You have identified on that particular 4 exhibit a number of other water districts, have you not? 5 MR. JOHNSTON: Yes. 6 MR. JACKSON: Is it fair to say that, according to the 7 arrows, that the Central California Irrigation District, the 8 groundwater moves toward the San Joaquin River? 9 MR. JOHNSTON: If you recall, I said that those arrows 10 represent the direction of groundwater movement, not 11 necessarily quantity or rate. 12 MR. JACKSON: I understand that. But direction is 13 toward the San Joaquin River in the Central California 14 Irrigation District? 15 MR. JOHNSTON: The San Joaquin River is shown also on 16 the map, and it traverses along the eastern edge of the 17 Central California Irrigation District, the San Luis Canal 18 Company and then goes on north through the San Joaquin 19 Valley. The arrows generally point toward the river, but 20 that is about all I think you can say about the rate. Or 21 you can't say anything about the rate or amount of movement, 22 just the direction. 23 MR. JACKSON: The direction is toward the river? 24 MR. JOHNSTON: Correct. 25 MR. JACKSON: That is true for the Grasslands Water CAPITOL REPORTERS (916) 923-5447 7323 1 District? 2 MR. JOHNSTON: What is true about that? 3 MR. JACKSON: That the direction of the flow of the 4 groundwater is toward the San Joaquin River? 5 MR. JOHNSTON: Yes. 6 MR. JACKSON: That is true for the Turner Island 7 Irrigation District? 8 MR. JOHNSTON: I would not want to make any judgment 9 about the Turner Island District. 10 MR. JACKSON: It is true for the San Luis Canal Company? 11 MR. JOHNSTON: Yes. 12 MR. JACKSON: It is true for the San Luis Water 13 District? 14 MR. JOHNSTON: Yes. 15 MR. JACKSON: True for the Pacheco Water District? 16 MR. JOHNSTON: Yes. 17 MR. JACKSON: True for the Eaglefield Water District? 18 MR. JOHNSTON: Yes. 19 MR. JACKSON: The Oro Loma Water District? 20 MR. JOHNSTON: Yes. 21 MR. JACKSON: The Mercy Springs Water District? 22 MR. JOHNSTON: Yes. 23 MR. JACKSON: The San Luis Water District? 24 MR. JOHNSTON: Yes. 25 MR. JACKSON: The Panoche Water District? CAPITOL REPORTERS (916) 923-5447 7324 1 MR. JOHNSTON: Yes. 2 MR. JACKSON: The Broadview Water District? 3 MR. JOHNSTON: Yes. 4 MR. JACKSON: The Firebaugh Canal Water District? 5 MR. JOHNSTON: Yes. 6 MR. JACKSON: And the Central California Water 7 District? 8 MR. JOHNSTON: Yes. 9 MR. JACKSON: I think I had them once before. 10 MR. JOHNSTON: Yes. 11 MR. JACKSON: Those are, in general, north of the 12 Westlands Water District, are they not? 13 MR. JOHNSTON: Yes. 14 MR. JACKSON: Have you, yourself, done any studies as 15 to -- any evaluation as to the rate in which the water moves 16 in the Central California Irrigation District? 17 MR. JOHNSTON: No. 18 MR. JACKSON: Of any of the other districts that I 19 mentioned with the exception of Westlands? 20 MR. JOHNSTON: No. 21 MR. JACKSON: Do you know what the groundwater 22 cross-sections would be in those districts? 23 MR. JOHNSTON: I would say that in the area on this 24 map, Westlands Exhibit 97, that the arrows are generally 25 perpendicular to the contours, the groundwater contours. CAPITOL REPORTERS (916) 923-5447 7325 1 So, where there are no arrows on this map, I wouldn't want 2 to make a judgment of direction. But what you asked me 3 about this was did the arrows generally point towards the 4 river, and, yes, they generally point towards the river. 5 MR. JACKSON: That is consistent. Could I have -- 6 MR. JOHNSTON: This is 96. 7 MR. JACKSON: -- 96? 8 The groundwater divide that you show makes sort of a 9 westerly turn at the northern boundary of Westlands Water 10 District? 11 MR. JOHNSTON: That is correct. 12 MR. JACKSON: So, on this map, judging from -- on 96, 13 the Panoche Water District, the Broadview Water District, 14 42,000 acres of the Westlands Water District, the Firebaugh 15 Canal Water District and the Central California Irrigation 16 District all drain towards the river? 17 MR. JOHNSTON: Only a portion of the 42,000-acre area 18 in Westlands because the gradient is east in this 19 42,000-acre area. And the river turns west right about the 20 city of Mendota. 21 MR. JACKSON: So that I understand this, you have a 22 series of dots on your explanation table on Exhibit 96 where 23 you now have your red pointer, what do those dots signify? 24 MR. JOHNSTON: They signify the location of groundwater 25 divide. CAPITOL REPORTERS (916) 923-5447 7326 1 MR. JACKSON: So, what is to the right of the dots on 2 Exhibit 96 would flow toward the river? 3 MR. JOHNSTON: That's correct. 4 MR. JACKSON: That includes all of the lime-green 5 Westlands area with the exception of the tiny corner at the 6 top. Correct? 7 MR. JOHNSTON: Well, I would say the southern half of 8 that area doesn't flow towards the river. The northern half 9 from about where the words "drainage area" are located. 10 North of that location points toward the river, and the 11 southern area of the lime-green flow east and would miss the 12 river. 13 MR. JACKSON: Now let's talk about that part. 14 The part that is to the right side of the groundwater 15 divide line on Exhibit 26, that is reflected in lime-green 16 as Westlands Water District -- 17 MR. JOHNSTON: 96. 18 MR. JACKSON: 96, excuse me. 19 That is reflected in Westlands Water District 20 423,000-acre drainage area, does not flow to the San Joaquin 21 River, the southern portion of that? 22 MR. JOHNSTON: We've been discussing only the direction 23 of any flow that might occur up till now. Are you now 24 asking me if there is any water escaping or flowing in that 25 direction, across that boundary? CAPITOL REPORTERS (916) 923-5447 7327 1 MR. JACKSON: Yes, sir, that is -- we'll start there. 2 MR. JOHNSTON: The calculations that we have made show 3 that probably a total of 12 to 15 acre-feet per year may 4 flow laterally in the top 20 to 25 feet of soil of ground, 5 at the most, in that area. 6 MR. JACKSON: Calling your attention to that area, that 7 area is in the San Joaquin River Basin, is it not? 8 MR. JOHNSTON: Yes. 9 MR. JACKSON: Are there parts of the Westlands Water 10 District that are not in the San Joaquin Basin? 11 MR. JOHNSTON: The -- in the designation of the San 12 Joaquin versus Tulare Lake Basin, the Department of Water 13 Resources has separated the San Joaquin and the Tulare Basin 14 along the northern boundary of Westlands Water District. 15 Based on their -- the DWR designation, everything in 16 Westlands is in the Tulare Lake Basin. 17 MR. JACKSON: But your research, your experience shows 18 that a certain portion of it, I think that we have talked 19 about in the northern portion of Westlands, does flow toward 20 the San Joaquin River underground? 21 MR. JOHNSTON: The direction of the gradient is towards 22 the river for a small area of the district. 23 MR. JACKSON: Now, let's go to this -- this is Figure 4 24 from the State Board Exhibit Number 147, was it? 25 MR. JOHNSTON: That's correct. CAPITOL REPORTERS (916) 923-5447 7328 1 MR. JACKSON: What is Exhibit 147? 2 MR. JOHNSTON: It's the so-called Rainbow Report. 3 MR. JACKSON: Are you familiar with the Rainbow Report? 4 MR. JOHNSTON: Somewhat. 5 MR. JACKSON: Have you had occasion to read the Rainbow 6 Report as part of your preparation for your testimony 7 today? 8 MR. JOHNSTON: No. 9 MR. JACKSON: Have you ever read the Rainbow Report? 10 MR. JOHNSTON: Yes. 11 MR. JACKSON: Do you generally agree with its 12 conclusions? 13 MR. JOHNSTON: No. 14 MR. JACKSON: In what way did you disagree with the 15 Rainbow Report? 16 MR. BIRMINGHAM: I will interpose an objection. If Mr. 17 Jackson is going to ask Mr. Johnston in what ways he draws 18 his conclusions from the Rainbow Report, perhaps if he could 19 provide Mr. Johnston with a copy of the report so Mr. 20 Johnston can refresh his recollections as to the conclusions 21 reached by the report. Otherwise the answer Mr. Johnston 22 provides would be of no probative value. 23 C.O. CAFFREY: Mr. Johnston has testified that he has 24 some familiarity with it, but that he has read it. But 25 from that I concluded that it's perhaps been a while since CAPITOL REPORTERS (916) 923-5447 7329 1 he read it, and I don't know that he absolutely has to have 2 a copy in front of him. 3 Does anybody have a copy? 4 MR. MINASIAN: Yes. 5 MR. JACKSON: The other, Mr. Caffrey, by doing the 6 rebuttal the way we do in these phased sessions, there was 7 no way to prepare for cross-examination prior to the 8 testimony because we didn't know what the man was going to 9 say. Basically, the questions of the groundwater divide 10 arose on direct today. And no one had any advance notice of 11 the conversation about the groundwater divide. So if you 12 will bear with me, I will probably do a better job next 13 week, but we will get to that. 14 C.O. CAFFREY: Since there is only five minutes left, 15 maybe in view of the objection, although where we are going 16 today, if we are going to continue today, I would keep, 17 using your terms, Mr. Jackson, I would bear with you and 18 allow you to do your best with both of you working with the 19 report as best as he could recollect and as best as you can 20 ask questions. 21 However, since it is five minutes to four, that is 22 close enough for government work. We will just adjourn nor, 23 and not before we hear from Mr. Birmingham. We will adjourn 24 momentarily so you can be better prepared. 25 MR. BIRMINGHAM: By my objection, I did not mean Mr. CAPITOL REPORTERS (916) 923-5447 7330 1 Jackson should not be permitted to ask questions about the 2 conclusions in the Rainbow Report. My objection went to the 3 probative value of his answer without having the document in 4 front of him to specifically identify conclusions. We would 5 have a very general answer which would be of little value to 6 the Board in reaching any kind of decision on it. 7 C.O. CAFFREY: I understood that, Mr. Birmingham. 8 Through the goodness and kindness of Mr. Minasian, we 9 do now have a copy, and we can be more probative next time 10 we meet. So tomorrow we will be here for consideration of 11 adoption of the draft order that is before us as the 12 extension of 95-6. We will be here at 9:00 for the Board 13 meeting. There is no hearing tomorrow. We will -- 14 When is the first hearing, Monday or Tuesday? 15 I believe it is Tuesday. 16 MR. MINASIAN: Just in order so that we all understand, 17 we go on with Mr. Johnson, and DWR would like to put on Mike 18 Ford. How would you like to do that? You want to put him 19 on first and go on with Johnson? 20 C.O. CAFFREY: We have quite a bit of cross-examination 21 yet on this witness. So, I am not going to speculate as to 22 when we are going to get to the next rebuttal case. It 23 could be -- it will be DWR. 24 MR. MINASIAN: What we will do, I'll work with Mr. 25 Sandino. My people will hold back, and we will finish Mr. CAPITOL REPORTERS (916) 923-5447 7331 1 Johnston. Mr. Sandino has indicated he wants to get Mr. 2 Ford on because of a, I think, vacation schedule or absence. 3 We will work that out. 4 C.O. CAFFREY: Thank you, Mr. Minasian. 5 MR. JACKSON: I have no objection to Mr. Ford going 6 first. He can get his -- 7 C.O. CAFFREY: Are you proposing Mr. Ford go the very 8 next time we meet? 9 MR. MINASIAN: I know they have scheduling problems. 10 C.O. CAFFREY: I apologize, Mr. Jackson. I did not 11 realize it. I thought -- 12 MR. JACKSON: Any way we want to do it is fine with 13 me. 14 C.O. CAFFREY: Thank you, sir. 15 We will take up with DWR, I guess, when we get back and 16 continue with this later. 17 Anything else before we adjourn until Tuesday? 18 MR. NOMELLINI: The decision was to finish with Mr. 19 Johnston, then take DWR. 20 C.O. CAFFREY: I'm sorry, say again. 21 MR. NOMELLINI: I thought the conclusion was we were 22 going to finish with Mr. Johnston and then go to DWR. 23 MR. SANDINO: We would like to go Tuesday or Wednesday. 24 That is our concern. We are not available Thursday. 25 C.O. CAFFREY: Thank you, Mr. Nomellini. CAPITOL REPORTERS (916) 923-5447 7332 1 Let's continue with Mr. Johnston, see if we can get 2 finished. 3 Does that make sense? 4 Let's do that and then, if we can't get finished on 5 Tuesday, then we will go over to Mr. Sandino's witness. 6 For those attending tomorrow's meeting, we will see you 7 then. Otherwise, we will see you Tuesday at 9:00 a.m. 8 Thank you very much. 9 (Hearing adjourned at 4:00 p.m.) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 7333 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 7157 through 14 7333 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 9th day of December 1998. 19 20 21 22 23 ______________________________ ESTHER F. WIATRE 24 CSR NO. 1564 25 CAPITOL REPORTERS (916) 923-5447 7334