STATE WATER RESOURCES CONTROL BOARD PUBLIC HEARING IN THE MATTER OF EXTENSION OF ORDER WR 95-6 OR EQUIVALENT TEMPORARY COMPLIANCE WITH THE 1995 WATER QUALITY CONTROL PLAN FOR THE SAN FRANCISCO BAY/SACRAMENTO-SAN JOAQUIN DELTA ESTUARY HELD AT PAUL R. BONDERSON BUILDING 901 P STREET SACRAMENTO, CALIFORNIA TUESDAY, DECEMBER 3, 1998 9:00 A.M. Reported by: MARY GALLAGHER, CSR #10749 CAPITOL REPORTERS (916) 923-5447 1 APPEARANCES ---oOo--- 2 3 BOARD MEMBERS: 4 JOHN CAFFREY, HEARING OFFICER JAMES STUBCHAER, VICE-CHAIR 5 MARC DEL PIERO MARY JANE FORSTER 6 JOHN W. BROWN 7 STAFF MEMBERS: 8 THOMAS HOWARD - Supervising Engineer 9 MAUREEN MARCHE' - Administrative Assistant 10 COUNSEL: 11 WILLIAM R. ATTWATER - Chief Counsel WALTER PETTIT - Executive Director 12 BARBARA LEIDIGH - Senior Staff Counsel DALE CLAYPOOLE - Chief Deputy Director 13 14 15 ---oOo--- 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 2 1 REPRESENTATIVES 2 WESTLANDS WATER DISTRICT: 3 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 4 400 Capitol Mall, 27th Floor Sacramento, California 95814 5 BY: CLIFFORD W. SCHULZ, ESQ. AMELIA MINABERRIGARAI, ESQ. 6 UNITED STATES DEPARTMENT OF THE INTERIOR: 7 OFFICE OF THE SOLICITOR 8 2800 Cottage Way, Roon E1712 Sacramento, California 95825 9 BY: ALF W. BRANDT, ESQ. 10 RANCHO MURIETA COMMUNITY SERVICES DISTRICT: 11 MCDONOUGH, HOLLAND & ALLEN 555 Capitol Mall, 9th Floor 12 Sacramento, California 95814 BY: VIRGINIA A. CAHILL, ESQ. 13 CALIFORNIA DEPARTMENT OF FISH AND GAME: 14 OFFICE OF THE ATTORNEY GENERAL 15 1300 I Street, Suite 1101 Sacramento, California 95814 16 BY: MATTHEW CAMPBELL, ESQ. 17 CAMP FAR WEST IRRIGATION DISTRICT, et al.: 18 DANIEL F. GALLERY, ESQ. 926 J Street, Suite 505 19 Sacramento, California 95814 20 SOUTH DELTA WATER AGENCY: 21 JOHN HERRICK, ESQ. 3031 West March Lane, Suite 332 East 22 Stockton, California 95267 23 REGIONAL COUNCIL OF RURAL COUNTIES: 24 MICHAEL B. JACKSON 1020 Twelfth Street, Suite 400 25 Sacramento, California 95814 CAPITOL REPORTERS (916) 923-5447 3 1 REPRESENTATIVES 2 CONTRA COSTA WATER DISTRICT: 3 BOLD, POLISNER, MADDOW, NELSON & JUDSON 4 500 Ygnacio Valley Road, Suite 325 Walnut Creek, California 94596 5 BY: ROBERT B. MADDOW, ESQ. 6 CORDUA IRRIGATION DISTRICT, et al.: 7 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 8 Oroville, California 95965 BY: PAUL R. MINASIAN, ESQ. 9 SOUTH DELTA PARTIES: 10 NOMELLINI, GRILLI & MCDANIEL 11 P.O. Box 1461 Stockton, California 95201 12 BY: DANTE JOHN NOMELLINI, ESQ. and 13 DANTE JOHN NOMELLINI, JR., ESQ. 14 OAKDALE IRRIGATION DISTRICT: 15 O'LAUGHLIN & PARIS 870 Manzanita Court, Suite B 16 Chico, California 95926 BY: TIM O'LAUGHLIN, ESQ. 17 CALIFORNIA DEPARTMENT OF WATER RESOURCES: 18 DAVID A. SANDINO, ESQ. 19 P.O. Box 942836 Sacramento, California 94236 20 SAN JOAQUIN RIVER EXCHANGE CONTRACTORS: 21 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 22 P.O. Box 1679 Oroville, California 95965 23 BY: MICHAEL V. SEXTON, ESQ. 24 25 CAPITOL REPORTERS (916) 923-5447 4 1 REPRESENTATIVES 2 SAN JOAQUIN COUNTY: 3 NEUMILLER & BEARDSLEE P.O. Box 20 4 Stockton, California 95203 BY: THOMAS J. SHEPHARD, SR., ESQ. 5 STOCKTON EAST WATER DISTRICT: 6 HERUM, CRABTREE, DYER, ZOLEZZI & TERPSTRA 7 2291 W. March Lane, Suite B100 Stockton, California 95207 8 STATE WATER CONTRACTORS: 9 BEST BEST & KREIGER LLP 10 P.O. Box 1028 Riverside, California 92502 11 BY: ERIC GARNER, ESQ. 12 13 ---oOo--- 14 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 5 1 I N D E X 2 ---oOo--- 3 4 PAGE 5 OPENING OF HEARING 7 6 END OF PROCEEDINGS 65 7 PRESENTATIONS: 8 BY STAFF 10 9 STATEMENTS: 10 DANTE JOHN NOMELLINI 17 11 JOHN HERRICK 22 TIM O'LAUGHLIN 30 12 ROBERT MADDOW 37 ERIC GARNER 39 13 MATT CAMPBELL 40 ALF BRANDT 46 14 DAVID SANDINO 50 CLIFF SCHULZ 54 15 KARNA HARRIGFELD 54 DANIEL GALLERY 55 16 17 ---oOo--- 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 6 1 THURSDAY, DECEMBER 3, 1998, 9:00 A.M. 2 SACRAMENTO, CALIFORNIA 3 ---oOo--- 4 C.O. CAFFREY: Good morning and welcome. This is a 5 special meeting of the State Water Resources Control Board 6 to consider the adoption of an order pertaining to the 7 Bay-Delta. 8 My name is John Caffrey. I am the Chairman of the 9 Board. By way of introduction of the Board Members, to my 10 immediate left is Board Member Mary Jane Forster. 11 MEMBER FORSTER: Good morning. 12 C.O. CAFFREY: Usually sitting next to Ms. Forster is 13 Board Member Marc Del Piero, our attorney member. 14 Mr. Del Piero is, as we speak, the hearing officer in the 15 tri-annual review of the California Oceans Plan, which is 16 being conducted in Southern California, so he will not be 17 here today. 18 To my immediate right Board Vice-Chair James 19 Stubchaer. 20 VICE-CHAIR STUBCHAER: Good morning. 21 C.O. CAFFREY: And next to Mr. Stubchaer is Board 22 Member John Brown. 23 MEMBER BROWN: Good morning. 24 C.O. CAFFREY: This meeting is being transcribed by a 25 Court Reporter. Immediately in front of the dais at the CAPITOL REPORTERS (916) 923-5447 7 1 table is the Board's Administrative Assistant Maureen 2 Marche'. Around the table from Ms. Marche' is our Chief 3 Counsel Mr. Attwater, Bill Attwater. And next to 4 Mr. Attwater is our Executive Director Walt Pettit. And 5 around the table from Mr. Pettit is our Chief Deputy 6 Director Dale Claypoole. 7 At the back of the room is Erin Saenz who will be 8 recording the meeting so we will have an audio recording as 9 well as the transcriptions. And with regard to the typed 10 transcriptions, this record will be separate from the Delta 11 hearing record. This is a separate proceeding. If you 12 wish to have copies of today's transcript you can obtain 13 them by talking to the stenographer. 14 Remind all the audience, this is a meeting for the 15 Board to consider adopting an order pertaining to the 16 extension of the existing Order 95-6. The evidentiary 17 record on this matter is not the subject here today. We 18 will hear argument from you. We will not be taking 19 evidence into the record. 20 We will have a limit of ten minutes per 21 presentation. And all the cards that are marked "if 22 necessary" I will call on you at that time and, please, 23 feel free to take the ten minutes, or any portion thereof. 24 Mr. Stubchaer, our Vice-Chair will keep track of 25 the time. And when there is two minutes left for you in CAPITOL REPORTERS (916) 923-5447 8 1 your presentation, he will remind you by saying "two 2 minutes" into the microphone. 3 We also normally in all of our public meetings 4 have a public forum. Because of the importance and gravity 5 of this particular item that we are taking up today and 6 because of the fact that we have a Court Reporter present 7 for this particular proceeding, we will reverse the order 8 of today's agenda. And we will take up the public forum 9 immediately after we consider this item. And I do have a 10 card from Mr. Miller, I know that you are here, sir. And 11 we will get to you as quickly as we can. 12 With that, then, if there is anything else from 13 the Board Members that they wish to state at the moment, or 14 anything from Mr. Pettit or Mr. Attwater at this point, if 15 not I will ask our staff, Mr. Tom Howard to make a brief 16 presentation on the order that is before us this morning. 17 And before he does that I will also read the order 18 of the speaker cards in which we will call upon the 19 speakers. You don't have to sit down, Tom. This will take 20 a minute. 21 MR. HOWARD: That's okay. 22 C.O. CAFFREY: He's familiar with the group. It may 23 be a longer list than I think. We have Dante Nomellini, 24 John Herrick, Tim O'Laughlin, Robert Maddow, Eric Garner, 25 Matt Campbell. I've another one from Tim O'Laughlin. This CAPITOL REPORTERS (916) 923-5447 9 1 within two separate representations, sir? 2 MR. O'LAUGHLIN: Yes. 3 C.O. CAFFREY: I'll put your cards together. 4 Virginia Cahill, Alf Brandt, David Sandino and Karna 5 Harrigfeld. That is the order in which we will call the 6 names. 7 Good morning, Mr. Howard, please, proceed. 8 ---oOo--- 9 PRESENTATION BY STAFF 10 BY TOM HOWARD 11 MR. HOWARD: Good morning, Mr. Chairman, Board 12 Members. The item before you is proposed order extending 13 the effective period of Order Water Right 95-6 and it adds 14 a couple of new terms to the water rights to the State 15 Water Project and the Central Valley Project. As you're 16 aware, this issue was -- the discussion was the subject of 17 Phase I of the Bay-Delta Hearing. I think we had that 18 phase about five months ago. 19 Order 95-6 expires on December 31, 1998. The 20 order substituted certain objectives that were adopted in 21 the 1995 Bay-Delta Plan with corresponding objectives 22 required to be met under the water right permits under of 23 the State Water Project and the Central Valley Project. 24 Essentially, Order 95-6 temporarily made the State 25 Water Project and the Central Valley Project water rights CAPITOL REPORTERS (916) 923-5447 10 1 consistent with the projects' voluntary compliance with the 2 objectives in the 1995 Bay-Delta Plan. Such voluntary 3 compliance was committed to by the State Water Project and 4 the Central Valley Project in the 1994 Principles for 5 Agreement. 6 Essentially, the order is exactly the same as the 7 original 95-6 that the Board adopted back in 1995. There 8 are, however, two new conditions that have been included in 9 that order in order to protect agricultural diverters in 10 the Southern Delta. 11 One condition required the Department and the 12 Bureau to consult with the South Delta Water Agency and 13 prepare a response plan specifying actions that they would 14 take if there were water level problems that occurred 15 during makeup pumping. In the last couple years there have 16 been complaints from the South Delta Water Agency while the 17 Department was making up export reductions that were lost 18 by the Bureau of Reclamation due to combined use of points 19 of diversion. And we felt that rather than try to respond 20 after the fact to those, that a response plan should be put 21 together that would allow a faster response if any problems 22 occurred due to the use of combined points of diversion. 23 The additional term requires the Department and 24 the Bureau to work with South Delta Water Agency to develop 25 methods to better predict water level problems. The water CAPITOL REPORTERS (916) 923-5447 11 1 level problems that the South Delta Water Agency has been 2 having, you might recall we received some testimony that 3 there had been some silting up of the channels in the South 4 Delta. And, you know, that might be part of the problem 5 that they're having. 6 But in any event, it seems to be an ongoing 7 problem. And South Delta Water Agency has ascribed to the 8 problem to the -- at least in part to Order 95-6. And so 9 we feel that it's necessary to develop better methods to 10 understand what exactly is the problem and, hopefully, that 11 term will help to address that issue. 12 We received six comments to the Draft Order. I 13 believe that all six comments have been provided to the 14 Board. We received comments from: South Delta Water 15 Agency, from Central Delta Water Agency, from Stockton East 16 Water District, from the Department of Water Resources, 17 Westlands Water District and Tuolumne Utilities District. 18 After reading the comments, the staff has prepared 19 a proposed errata sheet. And there are copies of the 20 errata sheet over there on the table. And I'd like to 21 briefly run through the errata sheet and tell you what the 22 purpose of the changes are and what comments they were 23 responding to. 24 The first change is on Page 5 of the Draft Order. 25 This was a comment that was provided by Stockton East Water CAPITOL REPORTERS (916) 923-5447 12 1 District. They state that they, in fact, did not make this 2 argument and that the sentence basically is a claim that 3 operations under the order have resulted in violations of 4 certain Water Code Sections. Stockton East Water District 5 has informed us that they never made those claims, so we're 6 proposing to strike that sentence. 7 On the second page, I mean on the second errata 8 that's on Page 6, the last paragraph, this was, again, a 9 comment by Stockton East Water District. They note that 10 their contracts with the Bureau are, in fact, not 11 conditional. That they are contracts, valid contracts. 12 And that they felt the five years of history of deliveries 13 through the Goodwin Tunnel were not adequate to determine 14 whether or not water deliveries could be characterized as 15 "rare." 16 So we're proposing to strike the word 17 "conditional" and change "rarely received" to "they have 18 not received all the water that they request," which we 19 believe is a factual statement. 20 The third errata was responding to a comment by 21 South Delta Water Agency and by Westlands Water District. 22 We're proposing to basically strike the whole paragraph 23 that's at the bottom of Page 9 and top of Page 10. 24 There's been a great deal of discussion recently 25 regarding the legal issues associated with what constitutes CAPITOL REPORTERS (916) 923-5447 13 1 a legal user of water. Both Westlands Water District and 2 South Delta Water Agency don't feel that this is 3 necessarily the correct place to try to address that issue. 4 That it needs to be more properly briefed. After some 5 consideration we believe that it isn't necessary to include 6 the order to this particular discussion to support the 7 order as drafted. So we're proposing to strike that issue, 8 strike that paragraph. 9 The fourth comment is to add the word "some" at 10 the start of the first sentence, last paragraph, Page 10. 11 This was responding to a comment by Stockton East Water 12 District. They felt that not all the San Joaquin interests 13 had made these statements and that it would be more -- 14 well, our response to that is that that is true and noting 15 that it's only some of the San Joaquin interests that made 16 these kinds of statements would be appropriate. 17 And the fifth errata addresses the same issue, 18 again, by Stockton East Water District. The sixth item in 19 the errata was provided by Tuolumne Utilities District. 20 That is on Page 10 and 11. They feel they're in a 21 different contractual situation than Stockton East Water 22 District and the Central San Joaquin Water Conservation 23 District. 24 And they felt that that should be noted. And so 25 we have made the change that the language in this area, in CAPITOL REPORTERS (916) 923-5447 14 1 this section was really only meant to apply to those 2 districts and not necessarily all contractors in the 3 Stanislaus Basin. 4 And the next comment, number seven, it addresses 5 the same issue by Tuolumne Utilities District. By putting 6 the word "existing" and we are, therefore, referring to 7 Stockton East Water District and Central San Joaquin Water 8 Conservation District, because Tuolumne Utilities District 9 is not presently an existing contractor. 10 The eighth change is recommended by the Department 11 of Water Resources in the order as Drafted S-97 and S-35 12 were suppose to become effective stations in Suisun Marsh 13 starting in October of 1997. However, the Board has 14 granted them extensions of the compliance date. And we 15 hadn't noted that in the order. So that makes that 16 correction. And the ninth errata addresses the same issue 17 only in the body of the order itself. 18 Those are all the comments that I had. Does the 19 Board have any questions? 20 C.O. CAFFREY: Thank you very much, Mr. Howard. 21 We'll see if there are any questions from the Board 22 Members. Mr. Stubchaer? 23 VICE-CHAIR STUBCHAER: This is just a comment, 24 Mr. Howard. Under Number 3 you mentioned striking 25 paragraph 3.3.1, but you didn't specifically mention the CAPITOL REPORTERS (916) 923-5447 15 1 replacement language. 2 MR. HOWARD: Yes, I'm sorry. There was a claim of 3 injury. And so we addressed the claim of injury, because 4 we feel that first off, South Delta Water Agency is not 5 being injured since, in fact, the new objectives are being 6 put into the proposed order. 7 And in addition, we had testimony during the 8 Bay-Delta hearing that the Bureau has sufficient water in 9 New Melones Reservoir to ensure compliance with the South 10 Delta water quality objectives next year during the period 11 of the order. And so there didn't seem to be any injury to 12 South Delta. 13 And we, also, felt that there was no injury to the 14 Westlands Water District Area 1 landowners, because this 15 order -- the Bureau had already committed to voluntary 16 compliance. And if there were any cutbacks that would 17 occur, they'd be occurring as a result of the voluntary 18 compliance and the Endangered Species Act requirements and 19 not necessarily as a result of this order. So we felt that 20 the issue of injury was not necessarily valid in this case. 21 Any others? 22 C.O. CAFFREY: Any other questions from the Board 23 Members? All right. Thank you, Mr. Howard. 24 MR. HOWARD: Sure. 25 C.O. CAFFREY: We know you'll remain here if we need CAPITOL REPORTERS (916) 923-5447 16 1 any clarifications. We will now go to the cards. 2 Mr. Nomellini, good morning, sir. Good to see you 3 again. 4 MR. NOMELLINI: Good morning, Mr. Chairman, Members 5 of the Board. 6 C.O. CAFFREY: It's been such a long time. 7 ---oOo--- 8 STATEMENT BY CENTRAL DELTA PARTIES 9 BY DANTE JOHN NOMELLINI 10 MR. NOMELLINI: Yes, it has been a long time. Dante 11 John Nomellini for the Central Delta Parties, and that is 12 inclusive of Central Delta Water Agency. 13 As you know, our agency was not happy with Water 14 Rights Order 95-6. And, unfortunately, we are unhappy with 15 the proposed order that you have before you today. In our 16 view, 95-6 and the proposed order that you have today in 17 effect implemented the Delta Accord. And we had a lot of 18 concern about how the Delta Accord came about, or the 19 Principles Agreement. And we viewed that proceeding as 20 somewhat of a rubber stamp. 21 And I know that's a term that nobody likes to 22 hear, but that's the best way to represent our view of what 23 was happening. And the provisions in 95-6 that are 24 incorporated here that we have the most heartache about are 25 those related to the joint points of diversion and the CAPITOL REPORTERS (916) 923-5447 17 1 makeup pumping. 2 And we spent a lot of time talking about the 100 3 percent of San Joaquin River flow that could be diverted, 4 you know, and the Bureau would never be able -- the State 5 can't do it either, because they're restricted by 6 Biological Opinions, but they use that 100 percent in the 7 calculation of what there should be in makeup pumping. 8 And there's this definition of terms problem 9 related to, well, we're not increasing export. You know, 10 we've got a formula to keep it within the bounds. And our 11 view is that you are, in fact, allowing an increase in 12 exports. Because the projects would not be able to pump at 13 the same level as they would be under your proposed order, 14 because they wouldn't have their previous permit from you, 15 D-1485, and on top of that would meet the constraints of 16 the Endangered Species Act. 17 Let's take, for example, the Bureau, they get shut 18 down during the spring-pulse flow because of the Endangered 19 Species Act. Under your order they're allowed to do makeup 20 pumping for that. And as we see the numbers, this makeup 21 pumping provision for the upcoming year means the Bureau is 22 going to be able to run through the State facilities 23 approximately 270,000 acre-feet of water. Now, if they 24 were operating by themselves they'd have the Endangered 25 Species Act restriction on them and they wouldn't be able CAPITOL REPORTERS (916) 923-5447 18 1 to pump that additional 270,000 acre-feet. 2 Now, if everything was going along and the areas 3 of origin were fully taken care of, the San Joaquin River 4 was taken care of, the water level problem -- and I'd like 5 to thank the staff for recognizing the water level problem. 6 I think that's a positive. And they ought to be commended 7 for that. 8 But if we had everything in place, we would not 9 have an objection to greater exports of surplus water. We 10 would not have one. But that isn't where we are today. We 11 didn't know before, at the time we were unhappy with 95-6, 12 that the Bureau was exporting water in violation of its 13 place of use restrictions on its permits. And we put 14 testimony in in Phase I before you. And with our estimate 15 that approximately 189,000 acre-feet are being exported 16 outside the place of use. 17 So we look at this concession that you're giving 18 the Bureau with these joint pumps of the 270,000, 19 approximately 189,000 of that is for an illegal diversion. 20 Now, what's the harm of that? We think you have a positive 21 duty to enforce the terms of your permit without 22 complaints. Now, the staff has told us, well, you can file 23 a complaint. We probably will file these complaints, but 24 we think you guys have an affirmative duty to enforce the 25 terms. CAPITOL REPORTERS (916) 923-5447 19 1 And why reward the Bureau without addressing that 2 in this way through these temporary orders? This temporary 3 order we started out with 95-6, if you extend it with the 4 proposed order it's almost going to be four years. So 5 we're not dealing with just a temporary thing. The 6 precedents that are set by these orders get carried 7 through. 8 I would also question the separate record. I 9 don't know what that means that this is a separate record, 10 you know, from the other hearing, but I guess I'll learn 11 that later on when we argue about it. 12 C.O. CAFFREY: Well, we may argue about it in the 13 future, Mr. Nomellini, but let me say that it is a part of 14 the general record, it is not a part of the evidentiary 15 record is my point. You may take exception with that as to 16 that's what that means. 17 MR. NOMELLINI: Okay. I just didn't know what that 18 meant if, in fact, we're unhappy from a legal standpoint 19 with this particular order we have to order up a record, 20 and I didn't understand it. 21 C.O. CAFFREY: Of course. 22 MR. NOMELLINI: It's separate from that. 23 C.O. CAFFREY: It's certainly part of the general 24 record and the transcript is available to you. 25 MR. NOMELLINI: Sort it out later. CAPITOL REPORTERS (916) 923-5447 20 1 C.O. CAFFREY: Yes, sir. 2 MR. NOMELLINI: In any event, we're disappointed that 3 the same order will put us in the same position pretty much 4 that we were in on 95-6. We note for the Board that the 5 Bureau has asked for additional concessions with regard to 6 the joint point operation. I just noticed it this morning 7 when I was going through some of my mail, it's dated 8 November 20th, but it didn't get to my office until 9 November 30th. 10 And I don't know whether you're going to hold a 11 separate hearing on that, but my request to you would be to 12 delete conditions 5B and 5A from this order if you're 13 intending to go forward with it at this time; and that you 14 hold a hearing on that request of the Bureau that they 15 submitted to you on November 20th and deal with the issue 16 of the joint points after we've been able to get into the 17 detail of those additional changes. Otherwise, they're 18 just going to fall right into this thing. And we're not 19 comfortable with it. 20 So thank you very much. 21 C.O. CAFFREY: Thank you very much, Mr. Nomellini, 22 for your comments. We appreciate them. 23 Mr. Herrick, sir, good morning. 24 // 25 // CAPITOL REPORTERS (916) 923-5447 21 1 ---oOo--- 2 STATEMENT BY SOUTH DELTA WATER AGENCY 3 BY JOHN HERRICK 4 MR. HERRICK: Good morning, Mr. Chairman, Board 5 Members. John Herrick for the South Delta Water Agency. 6 After receiving our comments I'm sure the Board and staff 7 said, "What's wrong with these people?" But I want to 8 start off by complimenting the Board and staff for the 9 recognition of the problem of the South Delta and the 10 provision drafted to try to address that. 11 Unfortunately, we don't think that's quite enough. 12 But I want to make sure it's not burning a bridge, because 13 of the effort made that we're not trying to shoot ourselves 14 in our collective feet, I guess. 15 C.O. CAFFREY: You do not burn any bridges here, 16 Mr. Herrick. The one thing we have to offer is fairness 17 and our undying attempt to be fair. So, please, tell us 18 what's on your mind. We welcome it. 19 MR. HERRICK: I appreciate that. We fall off of some 20 bridges once in a while. One of the biggest concerns is 21 the precedent set here. And that's basically a legal 22 argument. I don't pretend to know what the eventual ruling 23 would be, but I think we're presented with a very strange 24 choice which is: 25 Any finding of fact, or of law in the testimony -- CAPITOL REPORTERS (916) 923-5447 22 1 temporary order since it's part of the overall proceedings 2 may work to our disadvantage. And the reason for that is 3 if the temporary order, or the extension of WR 95-6 isn't 4 an appealable order, a final order, failure to appeal that 5 if you disagree with it may prejudice us later if the final 6 selection of the water right hearings is something we 7 disagree with. 8 I think that's a very serious concern to us. And 9 the way around that is based on the testimony today. The 10 Bureau said they would continue to operate to voluntarily 11 meet the 1995 Water Quality Control Plan objectives if the 12 order wasn't granted. In fact, the Bureau didn't put on a 13 case in chief for 95-6 extension. 14 They didn't come before you and say, "This is how 15 we're attempting to meet the standards, the objectives." 16 They didn't tell you whether there were affects of the way 17 they were doing it. We know how they're doing it. They 18 didn't put that case on. They didn't tell you anything 19 with regard to the harm that we allege occurred from the 20 joint point of diversions, the makeup pumping. 21 Now, we went through that process. The existing 22 order says you can do that if there's no harm to any other 23 legal users. We went through that process. And the third 24 year the State Board said "sorry." But the other two years 25 it was allowed over our objections. And you heard the CAPITOL REPORTERS (916) 923-5447 23 1 testimony, the Bureau represented in the hearings that they 2 did no evaluation as to whether or not the joint point 3 would affect South Delta diversions. That's what they 4 said, "no evaluation." 5 Now, it's hard to put faith in any tweaking of 6 that process if the Bureau hasn't done that evaluation, 7 didn't do that evaluation. We have before us as, 8 Mr. Nomellini just mentioned, a proposal for joint point 9 diversions, again. And the proposal by the Bureau talks 10 about how, or who they talked to, what they're doing. It 11 doesn't explain the causes of the prior alleged harm. It 12 doesn't try to predict when that harm would occur again so 13 they can avoid it. So they've done nothing different. 14 Although it's a good effort to say consult with 15 the South Delta and come up with a response plan, here's 16 the problem with that: What happens if the Bureau consults 17 with us and says, "That's general harm to you due to 18 general pumping, that's not makeup harm to you. That's 19 compliance with the rule"? 20 What if there's a disagreement to the response, or 21 the actions to be taken? There isn't any method that 22 assures proper performance. And you leave your Executive 23 Director with a difficult decision if DWR and USBR come 24 before you and say, "We've consulted with the South Delta, 25 we think they're wrong because there's a siltation problem, CAPITOL REPORTERS (916) 923-5447 24 1 it doesn't have anything to do with pumping, so please 2 allow us to pump an extra 250,000 acre-feet this year," or 3 whatever it's going to be. 4 Again, we appreciate the effort, but I don't think 5 that protects us. And I think the evidence of that is that 6 the proposal currently before you by the USBR doesn't make 7 any mention of the past problems, having figured out why 8 they happened, having predicted why they won't happen in 9 the future. There's none of that. 10 The only difference between the Bureau continuing 11 to voluntarily meet the objectives and an extension of 12 WR 95-6 is the joint point of diversion. That's the only 13 difference. They told you they're still going to operate 14 under the Interim Operations Plan for New Melones. They 15 told you they're still going to abide by the ESA 16 requirement. The only differences is: Can they makeup the 17 water? That's it. 18 So the issue before you is: Do you want to allow 19 the Bureau to recover what it claims are lost exports due 20 to fishery actions? Well, as Mr. Nomellini touched upon, 21 if the Endangered Species Act requires the Bureau to 22 decrease its exports during certain months, certain times, 23 then by definition that water is not surplus to the Delta. 24 It's needed in the Delta. 25 So how can you makeup your inability to export CAPITOL REPORTERS (916) 923-5447 25 1 water that wasn't surplus? Now, that may be some sort of a 2 triple negative there, but I think the point is clear. 3 That's not lost water because they aren't allowed under 4 some other law to do it. 5 Well, one of the big points we tried to make in 6 Phase I was the Interim Operations Plan. And it is true 7 that just about everybody believes that there's sufficient 8 water in New Melones to meet water quality requirements 9 this year. But our complaint in Phase I was the method 10 that the Bureau is operating New Melones. 11 And, again, we're put in a very difficult position 12 if the Board allows, or extends WR 95-6 in light of the 13 evidence that the budgeting under the Interim Operations 14 Plan will continue and that budgeting is insufficient are 15 we faced with a problem in the future? 16 In other words, I'm sure that our, shall we say, 17 our opposition in any potential hearing in the future will 18 say, well, the Board considered the budgeting of 19 insufficient water when they extended that order and you 20 didn't appeal that order. They acknowledge that there's 21 insufficient water in the system, so you now can't complain 22 that there's now a violation. That will occur. 23 Which leads us to the first point we try to make 24 in every phase: The Bureau has not made any sort of offer 25 about joining in any lawsuit that may arise. There's still CAPITOL REPORTERS (916) 923-5447 26 1 that issue of their sovereign immunity. 2 I would say that any offer to allow them to export 3 water should be conditioned upon them subjecting themselves 4 to the jurisdiction of the California court. Let's say we 5 feel that we have to challenge this order and the Bureau 6 doesn't decide to join that proceeding, we're back where we 7 were three years ago. And as, you know, we believe we got 8 a raw deal on that. 9 I think it's important to note the permits, the 10 conditions of the permits that the Bureau is currently 11 violating, the delivery of water outside the place of use 12 are before for the extension of WR 95-6. Does that 13 prejudice anybody if you do not take that into 14 consideration that when you allowed a change of that permit 15 at the same time you knew through the Bureau's own 16 admission that they're delivering water outside the place 17 of the use of those permits, does that prejudice us in the 18 future? Probably. 19 I really do appreciate the removal of references 20 to Section 1702. Again, that would put us in the position 21 of: Do we need to challenge this now because this is a 22 final order? 23 VICE-CHAIR STUBCHAER: Two minutes. 24 MR. HERRICK: Thank you, I'm almost done. I 25 appreciate that. Again, I want to state that our comments, CAPITOL REPORTERS (916) 923-5447 27 1 the written comments were sort of a grab bag of complaints. 2 And I don't want the impression to be that nothing that the 3 Board does can ever satisfy us, but these are very serious 4 issues. The Bureau is not attempting to solve South 5 Delta's problems. 6 The testimony was that during the time that its 7 negotiating with the South Delta regarding the settlement 8 of the 1982 lawsuit, during that time the Bureau adopted 9 the Interim Operation Plan which limits the amount of water 10 that they're going to release for downstreams and at the 11 same time, then, entered into the San Joaquin River 12 Agreement which locks that in for 12 years. 13 And I would submit precludes the Bureau then from 14 making any sort of offer with regard to the other part of 15 the 1980's lawsuit which deals with the quantity and 16 quality of water coming down the San Joaquin River. The 17 barrier program is suppose to address that. That's a very 18 serious issue. 19 And if that's good faith efforts on the part of 20 the Bureau to solve the problems in the South Delta and the 21 San Joaquin River, I do not see that. Now, the other side 22 is going to stand up and tell you, oh, the Interim 23 Operation Plan they're going to redo that, that's not an 24 issue, that's just until they do a long-term plan. 25 Well, I don't think anybody in this room believes CAPITOL REPORTERS (916) 923-5447 28 1 that the fishery agencies are going to want less water. 2 And so the only possibility for the long-term operation 3 plan is less water for water quality. I appreciate the 4 opportunity, my time is up. Thank you very much. 5 C.O. CAFFREY: Thank you, Mr. Herrick. I was going 6 to make a statement after all had spoken, but I think I 7 will say something now. 8 First of all, Mr. Herrick, we never -- I don't 9 know if you used the term "sour grapes," or something like 10 that. But we never view anybody who comes here before the 11 Board and defends their clients so well as you do and so 12 well as do all the other attorneys, we know that's your job 13 and you do it well. 14 Unfortunately, the Board is in a situation of 15 hearing different arguments on all sides of the issues and 16 we have to figure out as best we can based on the 17 evidentiary record the fairest thing that we can come up 18 with. This, if we adopt it today, is an interim order. 19 And I just want to remind everybody that, obviously, you 20 will do what you wish to do. 21 But the fact remains, that we have a proceeding 22 underway as you all know and as you are eloquently 23 participating in, that the sooner that completes and the 24 sooner the Board can write an order, whether it be phased 25 or otherwise and we have yet to decide that, but the sooner CAPITOL REPORTERS (916) 923-5447 29 1 the Board can complete that, the sooner there will be 2 something that will replace this. 3 And so the only reason that I say that is I'm not 4 going to give anybody advice. That's not what this is. 5 But I want it on the record that it's up to all of you to 6 decide how to best spend your best efforts. But the Board 7 is doing this today because the Board feels an obligation 8 to at least vote on whether or not the Delta should 9 continue to be protected in the best way that we can 10 protect it with the tools that we have at the moment. 11 So I say that, to you, sir, with great respect and 12 to everybody that we're trying to do our best and we 13 appreciate your comments, Mr. Herrick. 14 Mr. O'Laughlin. 15 ---oOo--- 16 STATEMENT BY SAN JOAQUIN RIVER GROUP AUTHORITY 17 BY TIM O'LAUGHLIN 18 MR. O'LAUGHLIN: Good morning, Chairman Caffrey, 19 Board Members and staff. First I'd like to say that I'm 20 representing the San Joaquin River Group Authority here 21 this morning. 22 The San Joaquin River Group Authority is made up 23 of Modesto Irrigation District, Turlock Irrigation 24 District, Oakdale Irrigation District, South San Joaquin 25 Irrigation District, Merced Irrigation District, the City CAPITOL REPORTERS (916) 923-5447 30 1 and County of San Francisco, Friant Water Users Association 2 and their member entities as well as the San Joaquin River 3 Exchange Contractors and their member entities. 4 We were working and we were hoping to get you 5 written comments on November 30th, but as you know 6 coordinated with that many parties with Thanksgiving and 7 the upcoming ACWA conference makes it difficult. So we do 8 have a written prepared statement. I'll read it into the 9 record rather than supply it in a written format. 10 C.O. CAFFREY: And I assume, Mr. O'Laughlin, excuse 11 me for interrupting you, that you will make a separate 12 statement for Oakdale? 13 MR. O'LAUGHLIN: I will be making a separate 14 statement on behalf of Oakdale Irrigation District and 15 South San Joaquin Irrigation District who I represent in an 16 individual capacity. 17 C.O. CAFFREY: Thank you, sir. Please, proceed. 18 MR. O'LAUGHLIN: Thank you. The San Joaquin River 19 Group Authority urges the Board to adopt the draft order 20 with the errata without changes. Adopting the Draft Order 21 without change and with the errata will have clear benefits 22 but no detriment. 23 The Bay-Delta Water Rights Hearing is designed to 24 implement the flow-depend objectives of the 1995 Water 25 Quality Control Plan. Maintaining the status quo by CAPITOL REPORTERS (916) 923-5447 31 1 extending Water Right Order 95-06 will allow the Board and 2 parties to concentrate on the Bay-Delta hearings and on the 3 CalFed process rather than adjusting to changes in the 4 water rights of the Central Valley Project and the State 5 Water Project through the year 1999. 6 Extending Water Right Order 95-06 will have no 7 detriment. As the Draft Order states on Page 13 and as 8 Mr. Howard just informed the Board the Bureau of 9 Reclamation will be able to meet all of its water quality 10 responsibilities, Stanislaus River instream-flow needs and 11 CVP contractual commitments from New Melones through the 12 water year 1999. 13 And this is due, as we heard in the testimony of 14 Lowell Ploss, to a large amount of runoff that was received 15 in 1997 and 1998 and the carryover storage in New Melones. 16 And if things keep going the way they are this year, I 17 don't think we'll have to worry about much again. Ever 18 since the Accord has been adopted it seems amazing that it 19 just seems to keep raining and raining and raining. You 20 should have done it a lot earlier. 21 The San Joaquin River Agreement does not object to 22 the additional conditions placed on the Bureau and the 23 Department concerning water levels in the South Delta given 24 the hydrologic conditions that are forecasted for 1999. 25 We also agree with the proposed errata number CAPITOL REPORTERS (916) 923-5447 32 1 three in regards to Water Code Section 1702. This is an 2 extremely important issue. We understand the importance of 3 this issue. We believe that if the State Board wishes to 4 address who is a, quote, unquote, legal user of water then 5 we suggest that the Board schedule a briefing and hearing 6 on this matter in the context of the larger Bay-Delta 7 Hearing and not as an extension of Water Right Order 95-06. 8 So we see that that would be coming up in the near 9 future. Because of the clear advantages of the Draft Order 10 and the lack of any impacts to any water users from its 11 adoption, the San Joaquin River Group Authority urges the 12 Board to adopt the Draft Order with the errata. And we 13 thank you for your consideration of this matter. 14 C.O. CAFFREY: Thank you, Mr. O'Laughlin. 15 MR. O'LAUGHLIN: Okay. Now, I'm going to switch 16 hats, if you don't mind very briefly. 17 C.O. CAFFREY: Please do. 18 MR. O'LAUGHLIN: Thank you. Two things Oakdale 19 Irrigation District and San Joaquin Irrigation District 20 wish to respond to independently and separate from the San 21 Joaquin River Group Authority were written -- received by 22 the Board. 23 One is written comments from Tuolumne Utilities 24 District in regards to the Draft Order extending Water 25 Right Order 95-06. We strongly disagree with the CAPITOL REPORTERS (916) 923-5447 33 1 assertions in their written memorandum that their contract 2 is before any other user of water, or any instream uses on 3 the Stanislaus River. 4 Our position will be and you'll probably hear more 5 about this in Phase II-A, that the only rights that TUD has 6 are rights derivative from the United States Bureau of 7 Reclamation. So they do not have rights superior to the 8 United States Bureau of Reclamation. And any water that is 9 available is a derivative from the United States Bureau of 10 Reclamation. 11 We will have much discussion about that in the 12 context of Phase II-A. I don't believe their assertions in 13 their document in regards to the extension of 95-06 is 14 applicable as to whether or not they get a contract in the 15 long-term due to the extension of 95-06 for a one-year 16 period. 17 The second one that I would like to address is the 18 comments by South Delta Water Agency. And Mr. Herrick 19 already warned you that I was going to say this, he's 20 clairvoyant on this point, because he's probably heard me 21 say it so many times. The Oakdale and South San Joaquin 22 Irrigation Districts take exception to the last part of the 23 comments made by South Delta Water Agency in regards to 24 water quality. And I'll state what our objection is. 25 Since the San Joaquin River Agreement incorporates CAPITOL REPORTERS (916) 923-5447 34 1 the New Melones Interim Operations Plan adopting the 2 proposed order is tantamount to the approval of the San 3 Joaquin River Agreement before Phase II-A and VIII has been 4 heard, we strongly disagree with that assertion. 5 As you heard in the testimony that was submitted 6 without rebuttal by any party in both Phases I, II, I think 7 it was IV and in V, the Interim Operations Plan is a 8 planning document that has been inserted into the San 9 Joaquin River Agreement as a baseline in order to allow the 10 parties to identify what water needs to be made available 11 from the entities who are going to make water available 12 pursuant to the agreement. 13 As Mr. Lowell Ploss testified to there is nothing 14 within the document, within the San Joaquin River 15 Agreement, in fact, it specifically states that it's 16 subject to a long-term operation plan. So this assertion 17 that by adopting 95-06 you're adopting the San Joaquin 18 River Agreement and you're foreclosing a hearing on II-A 19 and VIII is incorrect. 20 We will have a hearing in Phase II-A about the San 21 Joaquin River Agreement. It's a 12-year agreement. It's 22 not a one-year agreement. As I understand this order 23 before the Board this is an extension of 95-06 for an 24 additional year. We are looking at a long-term plan of how 25 water is going to be made available in the San Joaquin CAPITOL REPORTERS (916) 923-5447 35 1 River. 2 As part of that, the Interim Operation Plan fits 3 in as a planning document. Nothing forecloses a long-term 4 operation plan on the Stanislaus River. And speaking on 5 behalf of Oakdale Irrigation District and South San Joaquin 6 Irrigation District, we're working diligently with other 7 parties as you heard Mr. Steffani testify to, as you heard 8 Mr. Ploss testify to to get a long-term operation plan that 9 works for the parties on the Stanislaus River, the San 10 Joaquin River and the Bay-Delta. 11 Nothing that the Board will do here in this 12 proceeding by the adoption of the San Joaquin River 13 Agreement, by the adoption of 95-06 will foreclose that 14 process. That process will continue. And it is our hope 15 that in that process we will be able through gathering of 16 evidence such as the temperature model that we talked 17 about, the conjunctive-use model and through negotiations, 18 granted they're not always easy and take time, but to 19 figure out a way to meet the needs of the Stanislaus, those 20 people within the basin and those people downstream on the 21 San Joaquin River and Bay-Delta. 22 So we take strong exception to that statement. 23 We, both Oakdale and South San Joaquin Irrigation District 24 urge the Board to adopt 95-06. And we will continue to 25 work toward a long-term plan. And nothing that this Board CAPITOL REPORTERS (916) 923-5447 36 1 will do either now or through Phase II-A will foreclose 2 those districts from working toward a long-term plan on New 3 Melones. 4 Thank you very much, Mr. Chairman. Thank you 5 Board Members and staff. 6 C.O. CAFFREY: Thank you very much, Mr. O'Laughlin, 7 for your comments. We appreciate them. 8 Mr. Maddow, you marked your card "if necessary." 9 Did you wish to speak, sir? 10 MR. MADDOW: Very briefly, Mr. Chairman. 11 C.O. CAFFREY: Always glad to hear from you, 12 Mr. Maddow. 13 MR. MADDOW: Thank you, sir. 14 ---oOo--- 15 STATEMENT BY CONTRA COSTA WATER DISTRICT 16 BY ROBERT MADDOW 17 MR. MADDOW: Mr. Chairman, Members of the Board, I'm 18 Robert Maddow appearing for the Contra Costa Water 19 District. Just two very brief comments. First, we 20 appreciate the provision in the errata sheet removing the 21 issue on Water Code Section 1702, which we concur with 22 several of the other speakers and commenters with the 23 potential disruption in what is basically a continuation of 24 an interim order. And I don't think that kind of 25 disruption would have been very helpful to any of us at CAPITOL REPORTERS (916) 923-5447 37 1 this point. It's a serious issue and does need resolution 2 just not on this order. 3 Secondly, we are a bit concerned, we addressed 4 this in our statement at the conclusion of Phase I to some 5 degree. We are now taking what we all thought of as an 6 interim order and extending it for still another interim 7 period. And, although, we understand the Board's 8 intentions to complete the entire Bay-Delta process prior 9 to the end of 1999, we are a little bit concerned that 10 there's a lot left to be done. 11 We're not exactly sure where we're going to be by 12 six months, or eight months, or ten months from now, but we 13 would almost, without too much difficulty, envision being 14 back here again. Interim orders do serve an useful 15 process, but they have their limitations. 16 95-6 was not perfect. You have improved it with a 17 couple of the provisions that are added here. We 18 particularly note the efforts with regard to some of the 19 South Delta Water Agency problems in that regard. But in 20 improving it, you provided for some work that's suppose to 21 be concluded in December of 1999. 22 And if it should turn out that we're back here 23 again in late 1999 for some other kind of interim action, 24 I'm not quite sure exactly how the timing is going to be 25 held, how that's going to come together. So I think it's CAPITOL REPORTERS (916) 923-5447 38 1 incumbent on the parties and your staff and on the Board to 2 keep this every-moving target in mind. 3 Frankly, Contra Costa supported the extension of 4 95-6 and continues in that support. We do appreciate the 5 comments made by the six entities that did make comments 6 and the work by your staff in response to those. We 7 encourage the Board to go forward to adopt the order with 8 the errata changes that were described by Mr. Howard. 9 Thank you. 10 C.O. CAFFREY: Thank you, Mr. Maddow. I just feel 11 compelled to say: A little pessimism is always a healthy 12 thing. Nevertheless, we on the Board who tend sometimes to 13 be optimistic would like to look at this, interim, though 14 it may be short in the eyes of some, we like to think of 15 it, perhaps, as an incentive. But we do appreciate the 16 wisdom of your comments, sir. Thank you. 17 Mr. Garner. Good morning, sir, welcome. 18 ---oOo--- 19 STATEMENT BY STATE WATER CONTRACTORS 20 BY ERIC GARNER 21 MR. GARNER: Good morning, Chairman Caffrey, Members 22 of the Board, Eric Garner on behalf of the State Water 23 Contractors. The Contractors support the proposed order 24 extending Water Rights Order 95-6. We applaud the staff's 25 effort to put in good language to deal with water levels in CAPITOL REPORTERS (916) 923-5447 39 1 the South Delta. 2 The Contractors did, frankly, have some concerns 3 about the Draft Order, specifically, the Water Code Section 4 1702 language as well as other items that were submitted in 5 the written comments by the Department of Water Resources. 6 However, happily all of those have been addressed 7 in the errata sheet. And so the Contractors strongly 8 support the order in its present form with the errata sheet 9 and urge the Board to adopt it. 10 C.O. CAFFREY: Thank you very much, Mr. Garner. We 11 appreciate your comments. 12 Mr. Campbell. Good morning, sir. Welcome to you. 13 ---oOo--- 14 STATEMENT BY THE DEPARTMENT OF FISH AND GAME 15 BY MATTHEW CAMPBELL 16 MR. CAMPBELL: Good morning, Mr. Chairman and Members 17 of the Board. Matthew Campbell from the Attorney General's 18 Office on behalf of the Department of Fish and Game. The 19 Department of Fish and Game supports the extension of Order 20 95-6 and will not go into the reasons for that, but I'm 21 here today to take exception to the comments in the letter 22 submitted by the Tuolumne Utilities District regarding the 23 extension of Order 95-6. 24 Particularly, the Tuolumne Utilities District is 25 advancing a position that I believe that this Board and the CAPITOL REPORTERS (916) 923-5447 40 1 state and federal courts for years has rejected. And I'd 2 like to take this opportunity to remind the Board, to 3 provide the Board with a thumbnail stretch of some legal 4 principles that render the position of the Tuolumne 5 Utilities District completely groundless and meritless. 6 It is a fundamental principle of western water law 7 that one may not divert water from a source without first 8 acquiring a water right. It's Water Code Sections 102 and 9 1052. A water right is the right to use the water to 10 divert it from its natural course. United_States_versus_ ______ ______ ______ 11 State_Water_Resources_Control_Board, known as the Racanelli _____ _____ _________ _______ _____ _________ 12 Decision, 182 Cal.App. 3d 82, Page 100, 1986. 13 Accordingly, Water Code Section 102 provides that 14 all water within the state is the property of the people of 15 the state, but the right to use the water may be acquired 16 by appropriation in the manner provided by law. 17 That is also quoted in National_Audubon_Society_ ________ _______ _______ 18 versus_Superior_Court, 33 Cal. 3d 419, 441, 1983. It is ______ ________ _____ 19 also settled law that all property is subject to the 20 state's police power to regulate the use and the enjoyment 21 of the property for the public benefit. That comes from 22 Penn_Central_Transportation_Company_versus_City_of_New_York ____ _______ ______________ _______ ______ ____ __ ___ ____ 23 438, U.S. 104, Pages 124 through 125, 1978. There are some 24 other case, too. 25 California's police power includes the authority CAPITOL REPORTERS (916) 923-5447 41 1 to regulate the use and enjoyment of water rights for the 2 public benefit. The Forni Decision, 54 Cal.App. 3d at 753, _____ 3 Gin_S._Chow, 217 California 701 through 703. And most ___ __ ____ 4 importantly, no water rights are inviolable; all water 5 rights are subject to government regulation. Again, that's 6 from the Racanelli Decision, United_States_v._State_Water_ _________ ______ ______ __ _____ _____ 7 Resources_Control_Board, 182 Cal.App. 3d at 106. _________ _______ ______ 8 The nature of the public interest served by the 9 State Board is reflected throughout California statutory 10 scheme for water rights. For example, nonconsumptive or 11 instream uses are expressly included in the category of 12 beneficial uses to be protected in the public interest. 13 The State Board must often consider the amount of 14 water required for recreation and preservation and 15 enhancement of fish and wildlife resources. Water Code 16 Sections 1243, 1243.5. 17 The title to property in the fish residing within 18 California waters are vested in the State of California and 19 held in trust for its citizens. People_v._Truckee_Lumber_ ______ __ _______ ______ 20 Company, 116 Cal. 397, 399. That decision was in 1897. _______ 21 People_versus_Harbor_Hut_Restaurant, 147 Cal.App. 3d, 1151, ______ ______ ______ ___ __________ 22 at Page 1054, 1983. 23 People_versus_Glenn_Colusa_Irrigation_District, ______ ______ _____ ______ __________ ________ 24 127 Cal.App. at Page 36. And that's in 1932. Accordingly, 25 California can protect its fishery resources both through CAPITOL REPORTERS (916) 923-5447 42 1 its power to protect its property rights and through its 2 police power to protect the public interest. 3 The California Supreme Court has stated, and this 4 is a quote, 5 (Reading): 6 "The fish within our waters constitute the most 7 important constituent of that species of 8 property commonly designated as wild game, the 9 general right and ownership of which is in the 10 people of the state. 11 As in England, it was in the king; and the right 12 and power to protect and preserve such property 13 for the common use and benefit is one of the 14 recognized prerogatives of the sovereign, coming 15 to us from the common law, and preserved and 16 expressly provided for by the statutes of this 17 and every other state of the Union." 18 Just a couple of other legal principles. Again, 19 as stated in the Racanelli Decision, and I will quote, _________ 20 (Reading): 21 "More recently National_Audubon_Society_versus ________ _______ _______ ______ 22 Superior_Court, the California Supreme Court ________ _____ 23 underscored a further significant limitation on 24 water rights, the Public Trust Doctrine. The 25 Court there held that the state's navigable CAPITOL REPORTERS (916) 923-5447 43 1 waters are subject to a public trust and that 2 the state as trustee has a duty to preserve this 3 trust property from harmful diversions by water 4 right holders. Thus, the Court determined that 5 no one has a vested right to use water in a 6 manner harmful to the state's waters." 7 I've just addressed State of California legal 8 principles -- some, a thumbnail stretch of State of 9 California legal principles that are directly contrary to 10 the assertions made in the Tahoe Utility District comment 11 letter requesting certain changes -- 12 C.O. CAFFREY: You meant Tuolumne. 13 MR. CAMPBELL: I'm sorry. Tuolumne Utilities 14 District comment letter, thank you. 15 MEMBER BROWN: He's just seeing if we were paying 16 attention. 17 C.O. CAFFREY: Mr. Brown got it before I did. I 18 appreciate that. He's on the ball. 19 MR. CAMPBELL: The Tuolumne Utilities District also 20 contends that it is exempt from certain federal laws. I 21 would expect that the Federal Government will address those 22 issues, but I'd like to touch upon it briefly. 23 Some instruction on those issues can be obtained 24 from Natural_Resources_Defense_Council_versus_Houston, 146 _______ _________ _______ _______ ______ _______ 25 F.3d, 1118. It's a recent Federal Court decision. And in CAPITOL REPORTERS (916) 923-5447 44 1 that a decision is cited. It's O'Neill_versus_United_ _______ ______ ______ 2 States, 50 F.3d 677, 676, Ninth Circuit, 1985, noting that ______ 3 an agency can deliver less than a contractually agreed upon 4 water in order to comply with subsequently enacted federal 5 law. 6 And as stated in this Natural_Resources_Defense_ _______ _________ _______ 7 Council_versus_Houston decision it concluded that, _______ ______ _______ 8 therefore, even if the original contracts guaranteed the 9 nonfederal defendants a right to a similar share of 10 available water in the renewal contracts, the Bureau had 11 discretion to alter other key terms to the contract and the 12 Bureau may be able to reduce the amount of water available 13 for sale in order to comply with the Endangered Species 14 Act. 15 This is by no means a complete recitation of the 16 law applicable to the Tuolumne Utility District, or any 17 other entity who seeks to use water within the State of 18 California, but just a thumbnail sketch that I wanted to 19 provide to the Board as the basis for the Department of 20 Fish and Game's strong objections to the assertions in 21 Tuolumne Utilities District's letter. 22 One other point regarding that comment letter, it 23 was the Department's understanding that the purpose of this 24 hearing today was not to introduce new evidence. And in 25 Tuolumne Utilities District -- Tuolumne Utilities District CAPITOL REPORTERS (916) 923-5447 45 1 comment letter they sought to introduce evidence that is 2 not, yet, before the Board and is not part of the record 3 and the Department takes exception to that as well. 4 C.O. CAFFREY: Well, let me just say for the record, 5 Mr. Campbell, that technically this is not a hearing. It's 6 a voting meeting. There is a technical and legal 7 difference. And this Board will not consider anything 8 that's not evidence under the strictest definition. We 9 appreciate your comments. They're in the record and I 10 presume that that completes -- 11 MR. CAMPBELL: Yes, thank you. 12 C.O. CAFFREY: Thank you very much, sir. 13 Ms. Cahill, did you wish to make a comment? 14 MS. CAHILL: No, I've decided it's not necessary. 15 Thank you. 16 C.O. CAFFREY: Thank you very much, thank you for 17 being here. 18 Mr. Brandt. Good morning, sir. 19 ---oOo--- 20 STATEMENT BY UNITED STATES DEPARTMENT OF THE INTERIOR 21 BY ALF BRANDT 22 MR. BRANDT: Good morning. Alf Brandt for the United 23 States Department of Interior. I just have a few, couple 24 of clarifications because generally the United States 25 Department of Superior -- the United States Department of CAPITOL REPORTERS (916) 923-5447 46 1 the Interior -- 2 C.O. CAFFREY: At least from your point. 3 MR. BRANDT: Okay. United States Department of 4 Interior, generally, supports the order as proposed and 5 with the errata sheet, with the proposed changes in the 6 errata sheet. So, generally, we are supportive and we want 7 you to go forward as you would with all deliberate speed. 8 Just a couple of clarifications. 9 One is I'd like to clarify a statement that was 10 made on Page 13 of the order. Where it says that, 11 (Reading): 12 "For 1999, however, the USBR has guaranteed that 13 it will meet the Vernalis salinity objective 14 because it has a high water storage level in New 15 Melones Reservoir that will carry over to 1999." 16 Our only comment with that is that our testimony 17 by Mr. Ploss was that we expect to, we see no reason why we 18 wouldn't, our projections show that we will meet the 19 standard throughout the year, our concern is just with the 20 word "guaranteed." 21 To the extent that you can guarantee it with all 22 the changes in hydrologic conditions, who knows what could 23 happen? We cannot guarantee absolutely that we are going 24 to be able to meet it, but all our projections show that 25 with the water in New Melones we should have no problem CAPITOL REPORTERS (916) 923-5447 47 1 this year. 2 C.O. CAFFREY: I don't have a dictionary with me, but 3 do you have a --. 4 MEMBER FORSTER: How about "stated"? 5 MR. BRANDT: We stated that we would, that would be 6 fine. 7 C.O. CAFFREY: Is there any way to make the change, 8 Mr. Howard? 9 MR. HOWARD: Yes, I suggest we just change the word 10 "guaranteed" to "projected." 11 C.O. CAFFREY: Projected, that would work. 12 MR. HOWARD: Thank you. 13 MR. BRANDT: That's fine. 14 C.O. CAFFREY: If there is a motion later, you can 15 remind us, Mr. Howard, of that one particular change from 16 the errata and the order. All right. Go ahead. 17 MR. BRANDT: Okay. Now, couple of other things. 18 These are actually in response to a couple of comments -- 19 that's the end of the clarifications from the order. Just 20 in response to a couple of comments that have been made 21 both in writing and here today. 22 First of all, as to Tuolumne Utility District, I 23 think I will, just for the most part, join in some of the 24 comments that have been made by the Department of Fish and 25 Game, Oakdale and South San Joaquin along those lines, we CAPITOL REPORTERS (916) 923-5447 48 1 do disagree. 2 Tuolumne Utilities District appears to suggest 3 that they have some senior right to our project water. 4 We're not talking about their right to go and appropriate 5 water and take it out of the stream and reduce our rights, 6 they're talking about some senior right to our project 7 water and for us to dictate, or for this Board, or for them 8 to be able to dictate how we give them water, or what 9 project water they would get and we disagree with that. 10 They are not a right holder in the technical 11 terms of water rights. They do have a contract with us and 12 we will abide by that contract. And we are at this point 13 negotiating with them. And some of these things I think in 14 some ways were, perhaps, just a set up for the negotiation, 15 preparing for the negotiation. They told us these same 16 things before. We heard them before. And it's just 17 basically putting them on the record here as we prepare for 18 negotiation. 19 The last comment I'll make is with regard to the 20 South Delta Water Agency. You will not be surprised to 21 learn that we object to the allegations that we acted in 22 bad faith and we're going to continue to act in bad faith. 23 We continue to try to resolve those issues as they come up. 24 We've done it several times this year even in cases where 25 there were questions about siltation of the channels that CAPITOL REPORTERS (916) 923-5447 49 1 they raised, or the channels where they had problems. 2 We continue to reduce pumping. We will continue 3 to do that and we will continue to that in the year ahead. 4 And we will continue to work with them and abide by your 5 order to work with them to develop a response plan in 6 anticipation beforehand to do the best we can to resolve 7 the problems before they occur. So we will continue to act 8 in good faith to try to do that as best we can. 9 Couple of other things that I just need to state 10 for the record, we have not and we do not waive our 11 sovereign immunity at this time. So that's clear. 12 And the Interim Operations Plan, I'll join in the 13 comments by Oakdale as well, that it's not locked in by 14 your adoption of this order. We are continuing to 15 negotiate and work on a new plan, on a long-term plan that 16 resolves the many challenging demands on New Melones water. 17 And with that, I will just say, good luck. And with all 18 deliberate speed, let's go forward. 19 C.O. CAFFREY: All right. Thank you very much, 20 Mr. Brandt. 21 Mr. Sandino. Good morning, sir. 22 ---oOo--- 23 STATEMENT BY THE DEPARTMENT OF WATER RESOURCES 24 BY DAVID SANDINO 25 MR. SANDINO: Good morning, Chairman Caffrey, Members CAPITOL REPORTERS (916) 923-5447 50 1 of the Board, Staff, David Sandino on behalf of the 2 Department of Water Resources. The Department supports the 3 extension of Water Rights Order 95-6 as proposed in the 4 Board's Draft Order and the errata. 5 As Mr. Howard noted, we submitted written 6 suggestions to the Board relating to compliance dates for 7 two western stations in Suisun Marsh. We appreciate staff 8 including them as part of the errata sheet. 9 As we understand the proposed Draft Order, it 10 would maintain requirements specified in Water Rights Order 11 95-6 until December 31st, 1999, or the end of the Bay-Delta 12 hearings, whatever comes first with two modifications of 13 terms specified in the current order. 14 The first modification requires the Department and 15 the Bureau of Reclamation to submit a review of the Suisun 16 Marsh water quality standards and implementation dates to 17 the Board by June 1st, 1999. 18 As we testified during Phase III of the hearings 19 DWR is working on this requirement with other interested 20 parties through the Suisun ecological work group, which 21 includes the Bureau, the Department of Fish and Game, the 22 United States Fish and Wildlife Service and the Suisun 23 Resource Conservation District. We believe we are making 24 progress and that we'll be able to submit a report to the 25 Board by the June 1st deadline. CAPITOL REPORTERS (916) 923-5447 51 1 The second modification of note requires the 2 Department and the Bureau, depending on which party is 3 intending to use joint point for fish protections, to 4 submit a response plan to the Board to show that water 5 levels in the South Delta are not reduced to an inadequate 6 level for local agricultural diversions. 7 The order also proposes that DWR and the Bureau 8 work with South Delta Water Agency to better predict the 9 affects of the State Water Project and the Central Valley 10 Project pumping on water levels in the South Delta and to 11 report the results of this work to the Board by 12 December 31st, 1999. 13 Current Water Right Order 95-6 requires that 14 shifts in exports for fishery purposes not adversely affect 15 any legal user of water. And we believe this section 16 protects South Delta water users. As we testified during 17 Phase I and Phase V, DWR has already been working with the 18 Bureau and South Delta Water Agency informally to identify 19 impacts of project operations to water levels in the South 20 Delta due to pumping. 21 We would continue to do so absent the requirements 22 in the proposed Draft Order. However, we do not object to 23 the more formalized process proposed in the order. We 24 believe that it is important that the final order adopted 25 by this Board limit the response plan to impacts to water CAPITOL REPORTERS (916) 923-5447 52 1 levels insofar as they are under the control of the two 2 projects as is currently proposed in the Draft Order. 3 Consistent with our testimony in Phase V, in 4 addition to the affects of project operations, water levels 5 in the South Delta are affected by a variety of factors 6 outside of the project's control. 7 Also, we believe that the Draft Order extending 8 95-6 with its recognition of water level concerns is 9 consistent with our testimony that the permanent barriers 10 as part of the Interim South Delta Program is needed to 11 help address water levels in the South Delta. 12 In conclusion, the Department supports the Board 13 adopting the proposed water rights order extension of 95-6 14 with the errata sheet as an interim order to maintain 15 certain regulatory requirements during the Bay-Delta 16 hearings, which we remain hopeful will be completed before 17 the expiration date of the order at the end of 1999. That 18 concludes the my statement. 19 C.O. CAFFREY: Thank you, Mr. Sandino, we share in 20 your hopes. We appreciate your comments. Thank you. 21 Mr. Schulz, do you wish to make a comment, sir? 22 MR. SCHULZ: Yes. 23 C.O. CAFFREY: Good morning, sir, and welcome. 24 // 25 // CAPITOL REPORTERS (916) 923-5447 53 1 ---oOo--- 2 STATEMENT BY WESTLANDS WATER DISTRICT 3 BY CLIFF SCHULZ 4 MR. SCHULZ: Good morning, Mr. Chairman and Members 5 of the Board. Cliff Shulz appearing this morning for 6 Westlands Water District. Tom Birmingham is making a 7 presentation down at ACWA today. 8 Westlands only written comment on the proposed 9 order was with respect to Water Code Section 1702. With 10 the modifications made in the errata sheet Westlands fully 11 supports the order and urges the Board to adopt it. 12 C.O. CAFFREY: Thank you very much, sir, for taking 13 the time to be here. 14 Ms. Harrigfeld. Good morning and welcome. 15 ---oOo--- 16 STATEMENT BY STOCKTON EAST WATER DISTRICT 17 BY KARNA HARRIGFELD 18 MS. HARRIGFELD: Good morning, Chairman, Members of 19 the Board. My name is Karna Harrigfeld appearing today on 20 behalf of Stockton East Water District. I'd like to thank 21 the Board's staff for taking consideration of our comments 22 and I appreciate all the changes in the errata. 23 I have only one comment and that relates to 24 Section 3.3.2 which is the watershed preferences and place 25 of use limitations. I just want our objection in the CAPITOL REPORTERS (916) 923-5447 54 1 record to the legal conclusions contained in that section. 2 Those conclusions were not briefed. And we don't believe 3 that they are necessary in order to grant the extension of 4 Water Rights 95-6. So with that, thank you. 5 C.O. CAFFREY: Thank you very much, Ms. Harrigfeld, 6 appreciate your comments. That does complete all the 7 cards. 8 Mr. Gallery, I thought you might wish to -- 9 Mr. Gallery had submitted a card and after reading the 10 errata sheet had withdrawn it, but I was going to offer you 11 the opportunity, Mr. Gallery, and here you are. 12 ---oOo--- 13 STATEMENT BY TUOLUMNE UTILITIES DISTRICT 14 BY DANIEL F. GALLERY 15 MR. GALLERY: Thank you. Well, I just want to 16 respond briefly to a couple of the comments that have been 17 made about Tuolumne Utilities District's comments which 18 have been made to the Draft Order. 19 I don't believe that there's really a problem 20 here. All we want the draft -- we did not want the Draft 21 Order to preclude the position that we're taking in the 22 case in which we would meet the issues that were discussed 23 by Mr. O'Laughlin and Mr. Campbell in Phase II-A. 24 So as we saw the language in the Draft Order it 25 was, perhaps, ruling against the issues that TUD intends to CAPITOL REPORTERS (916) 923-5447 55 1 raise when we get to Phase II-A. And so the language that 2 the staff proposed would just merely have deleted the 3 language so as to make it clear that TUD's position could 4 still be raised when we get to II-A. And that's all the 5 errata does I think with respect to that. And it leaves 6 these issues open that Mr. Campbell wants to argue and 7 Mr. O'Laughlin wants to argue. 8 And I think that they're overstating our position 9 in their comments. Basically, TUD's position is simply 10 this: That in 1972, when the decision on New Melones was 11 adopted the plan was at that time that the fish releases 12 would be about 98,000 acre-feet; water quality releases 13 would be about 70,000 acre-feet; and there would still be 14 about 180,000 acre-feet to market, to contract. 15 And what's happened in the intervening years is 16 that the fish releases were first stepped up to 302,000. 17 And now with CVPIA they've gone on up to 400 and some 18 thousand and, in fact, 70,000 acre-feet for water quality 19 isn't doing the job at all, so more Melones is needed for 20 water quality. 21 And our position is that when the Board put in the 22 requirement that fish releases be made in the Bureau permit 23 and put in the requirement that water quality releases be 24 made in the permit, they also put in the permit that the 25 Bureau should honor its contract with TUD. CAPITOL REPORTERS (916) 923-5447 56 1 And what we're really saying here is that: Did 2 the Board intend that these requirements for water quality 3 for fish would go up so high that they would eliminate the 4 condition that we get water under our contract with the 5 Bureau? 6 We don't think the Bureau intended that. And we 7 really want the Board to reexamine that. What the Bureau 8 is saying is, well, these other two conditions of the 9 permit take precedence over the obligation to provide water 10 to TUD. And we want the Board to look at whether that 11 priority was intended or should be. 12 Furthermore, the decision had a requirement that 13 no water should be used outside the county of origin if 14 it's needed within the county if required for its 15 development. And the reuse of the water for fish 16 downstream in the Stanislaus and the use of the water 17 downstream for fish and water quality, they are both 18 outside the county of origin. 19 And it seems to us that the county of origin 20 statutes says that our needs should not be defeated by the 21 use of that water outside the county if we need it in the 22 county. So those are our arguments that we want to make to 23 you in Phase II-A. 24 And so we agree that we don't want this order to 25 rule that way, now, that we're not expecting or asking the CAPITOL REPORTERS (916) 923-5447 57 1 order do that. We simply want those issues to be left to 2 be decided by the Board later. And I think the staff's 3 changes in the errata sheet simply do that. 4 Thank you. 5 C.O. CAFFREY: Thank you, Mr. Gallery. We appreciate 6 your comments as well. That completes the cards that we 7 have. 8 Mr. Howard just left the room. I was going to ask 9 him if he had any comments. Ms. Leidigh? It was a very -- 10 Mr. Pettit, did you have anything, sir? 11 MR. PETTIT: I think Ms. Leidigh is going to address 12 it in view of Mr. Howard's departure a moment ago. 13 C.O. CAFFREY: All right. Thank you. 14 Good morning, Ms. Leidigh, you were in the same 15 traffic jam that I was. 16 MS. LEIDIGH: I may have been farther out in the 17 traffic jam since I came in from the hills. 18 C.O. CAFFREY: That's probably so. 19 MS. LEIDIGH: The first point that I wanted to make 20 is that we are not necessarily assured that the same 21 commitments that the Department and Bureau have would 22 continue if this order were not adopted. The Endangered 23 Species Act provisions could be subject to reconsultation 24 in that situation. I don't know whether they would do that 25 or not, but there is that potential there. And then CAPITOL REPORTERS (916) 923-5447 58 1 Mr. Nomellini has said that it wouldn't make any 2 difference. I wanted to point out that it could. 3 The letter that Mr. Nomellini referred to about 4 request for joint point has already been approved. That 5 request has already been approved by the Executive 6 Director. It could be subject to petitions to 7 reconsideration, or request for review if the parties wish 8 to do that. 9 C.O. CAFFREY: I'm sorry. Mr. O'Laughlin, a point of 10 clarification? 11 MR. O'LAUGHLIN: Could you repeat that, Barbara, 12 because no one here has received any notification that 13 Mr. Pettit has adopted that. 14 MS. LEIDIGH: Okay. Mr. Redding was just clarifying. 15 There were two letters, we approved the first one not the 16 second one. 17 MR. BRANDT: Second one is the one that you got. 18 MR. NOMELLINI: Could you tell us which two letters? 19 MR. HERRICK: Where's the other one? 20 MR. O'LAUGHLIN: Where's the other one? I just got 21 one. 22 VICE-CHAIR STUBCHAER: There's too many people 23 talking at once. 24 C.O. CAFFREY: Let's have one at a time. This is a 25 transcribed record. So, please, stand if you want to be CAPITOL REPORTERS (916) 923-5447 59 1 heard, or raise your hand. 2 Mr. Nomellini. 3 MR. NOMELLINI: John Nomellini for Central Delta 4 Parties. We would ask the Chair to ask the speaker to tell 5 us which two letters are being referred to so we can be 6 aware of whether or not we've received any -- 7 MS. LEIDIGH: I'm trying to do that. 8 C.O. CAFFREY: If this information was necessary in 9 the first place, excuse me, could you clarify for us, 10 Ms. Leidigh, what the two letters are and what the exact 11 status is? 12 MS. LEIDIGH: The Department and the Bureau had asked 13 for some makeup pumping approval in advance of reductions 14 in spring. And one of those requests has been approved. I 15 think, perhaps, Mr. -- okay. 16 Mr. Pettit, did you want to address this in more 17 detail? 18 MR. PETTIT: Just briefly. I think it was, what's 19 today Thursday? 20 C.O. CAFFREY: Today is Thursday, December 3rd. 21 MR. PETTIT: Must have been late Monday night when we 22 approved the first of those requests which allowed some 23 pumping by the Department and for the Bureau to do two 24 things: 25 The fishery agencies wanted to run another fish CAPITOL REPORTERS (916) 923-5447 60 1 test. And the Bureau also has to shut down the 2 Delta-Mendota Canal for a while for maintenance. And so 3 they coordinated those two operations and that's the first 4 of the requests and that's the only one that's been 5 approved. I might add that while we're happy to explain 6 what's going on, this really isn't relevant to this 7 particular order. And it was an action taken under the 8 existing order. 9 C.O. CAFFREY: That's what I was going to say. 10 MR. PETTIT: Thank you. 11 MS. LEIDIGH: I just meant that as a clarification of 12 a point that had been made because there was an attempt to 13 link that to this order. I think that's all that I really 14 needed to address. Unless you have some other questions, I 15 think we've covered virtually everything -- 16 C.O. CAFFREY: Thank you, Ms. Leidigh. 17 MS. LEIDIGH: -- in the errata. 18 C.O. CAFFREY: Mr. O'Laughlin? 19 MR. O'LAUGHLIN: I wrote on my notes, I know about 20 one letter now. What was the second letter that was 21 referred to? 22 MS. LEIDIGH: There was only one letter. It had two 23 requests. 24 MR. O'LAUGHLIN: Okay. 25 MR. REDDING: November 16th and November -- CAPITOL REPORTERS (916) 923-5447 61 1 C.O. CAFFREY: There is a second letter? 2 MS. LEIDIGH: Apparently, there is, I'm sorry. I'm 3 sorry, I thought it was all in one letter. 4 C.O. CAFFREY: All right. Mr. Pettit, can you 5 comment on the second letter? 6 MR. PETTIT: I know there were two requests. I don't 7 recall specifically, other than Mr. Brandt says there's two 8 letters, I'm sure there's two letters. The reason I wanted 9 to be specific is to what has been approved. And what has 10 been approved is just the one provision that I alluded to 11 earlier. 12 C.O. CAFFREY: Yeah, we get lots of requests. 13 MR. PETTIT: It sounds like this is just getting more 14 confused. 15 C.O. CAFFREY: A request is just that, a request. 16 Thank you, Mr. Pettit. 17 Mr. Attwater? 18 MR. ATTWATER: I'd like Ms. Leidigh to clarify one 19 thing. 20 Barbara, if the Board adopts this order today it 21 takes effect immediately and not at the end of the month, 22 correct? 23 MS. LEIDIGH: It will take effect immediately, that 24 is correct. 25 MR. ATTWATER: All right. CAPITOL REPORTERS (916) 923-5447 62 1 C.O. CAFFREY: All right. Thank you, sir. Thank 2 you, Ms. Leidigh. Let me ask Mr. Howard: 3 Did you have anything you wanted to add? You were 4 here for the entirety. 5 MR. HOWARD: No, unless you have any questions I'd be 6 happy. 7 C.O. CAFFREY: Thank you. Thank you, Ms. Leidigh. 8 The matter is now before the Board for a vote. Is 9 there any need for discussion before we get to that? 10 Mr. Nomellini rises. Mr. Nomellini. 11 MR. NOMELLINI: Yes, at sometime before we leave the 12 room, could somebody tell us what the two letter requests 13 are? 14 C.O. CAFFREY: If you're interested in that you can 15 talk to Mr. Pettit or something after we complete the item. 16 Would that be satisfactory? 17 MR. NOMELLINI: Thank you. 18 C.O. CAFFREY: The staff will provide anybody that 19 wants to know what the information actually is. 20 MR. HOWARD: We have copies of both letters. And if 21 anybody wants to come upstairs we'll make copies for them. 22 C.O. CAFFREY: Thank you. Everybody hear that? 23 Mr. Howard will provide copies of the letters if you just 24 see him after the proceedings. Thank you. Thank you, 25 Mr. Howard. CAPITOL REPORTERS (916) 923-5447 63 1 The matter is now before the Board. We can have a 2 discussion now, we can have a motion and a second and a 3 discussion, or a motion a second and no discussion. 4 What is the desire of the Board? 5 Mr. Brown. 6 MEMBER BROWN: Mr. Chairman, I move adoption of the 7 order with the change that was requested on Page 13 where 8 we changed "guaranteed" to "projected" in the first 9 paragraph. 10 C.O. CAFFREY: I believe that is correct, sir. 11 MEMBER BROWN: And the errata sheet. 12 C.O. CAFFREY: All right. Thank you for the motion. 13 VICE-CHAIR STUBCHAER: Seconded. 14 THE COURT: It's seconded by Mr. Stubchaer. The 15 motion is that we adopt the order with the errata sheet and 16 the change of the word "guaranteed as projected" as 17 described earlier in the record. 18 Ms. Marche', will you please call the role? 19 MS. MARCHE': Mr. Brown? 20 MEMBER BROWN: I. 21 MS. MARCHE': Mr. Stubchaer? 22 VICE-CHAIR STUBCHAER: I. 23 MS. MARCHE': Ms. Forster? 24 MEMBER FORSTER: I. 25 MS. MARCHE': Mr. Caffrey? CAPITOL REPORTERS (916) 923-5447 64 1 C.O. CAFFREY: I. The order is adopted. Do we have 2 a number at this juncture, Ms. Marche', or is that 3 something else to be decided? It will be 98-something. 4 Anybody know? 5 MS. MARCHE': Something. 6 C.O. CAFFREY: Anybody know? 7 MS. MARCHE': I didn't look. Maybe I shouldn't say. 8 I think it's 98-09. 9 C.O. CAFFREY: Maybe we shouldn't say. We'll have it 10 shortly. It's effective now. It's 98-whatever. Thank 11 you, all. I'm going to close this item. The meeting is 12 not yet adjourned. We do have a public forum item that 13 Mr. Miller has been waiting for. 14 We'd like to take about a three-minute break so 15 that those that are not going to stay can clear the room, 16 so Mr. Miller can have the full attention of the Board. 17 Thank you. 18 (The proceedings concluded at 10:28 a.m.) 19 ---oOo--- 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 65 1 REPORTER'S_CERTIFICATE __________ ___________ 2 3 STATE OF CALIFORNIA ) ) ss. 4 COUNTY OF SACRAMENTO ) 5 I, MARY R. GALLAGHER, certify that I was the 6 Official Court Reporter for the proceedings named herein, 7 and that as such reporter I reported in verbatim shorthand 8 writing those proceedings; that I thereafter caused my 9 shorthand writing to be reduced to typewriting, and the 10 pages numbered 7 through 65 herein constitute a complete, 11 true and correct record of the proceedings. 12 IN WITNESS WHEREOF, I have subscribed this 13 certificate at Sacramento, California, on this 6th day of 14 December, 1998. 15 16 ________________________________ MARY R. GALLAGHER, CSR #10749 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 66