STATE WATER RESOURCES CONTROL BOARD PUBLIC HEARING 1998 BAY-DELTA WATER RIGHTS HEARING HELD AT THE BONDERSON BUILDING 901 P STREET SACRAMENTO, CALIFORNIA WEDNESDAY, DECEMBER 16, 1998 9:00 A.M. Reported by: MARY GALLAGHER, CSR #10749 CAPITOL REPORTERS (916) 923-5447 1 APPEARANCES ---oOo--- 2 3 BOARD MEMBERS: 4 JOHN CAFFREY, CO-HEARING OFFICER JAMES STUBCHAER, CO-HEARING OFFICER 5 MARC DEL PIERO MARY JANE FORSTER 6 JOHN W. BROWN 7 STAFF MEMBERS: 8 THOMAS HOWARD - Supervising Engineer 9 VICTORIA A. WHITNEY - Senior Engineer 10 COUNSEL: 11 WILLIAM R. ATTWATER - Chief Counsel 12 WALTER PETTIT - Executive Director BARBARA LEIDIGH - Senior Staff Counsel 13 14 ---oOo--- 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 7998 1 REPRESENTATIVES 2 PRINCETON CODORA GLENN IRRIGATION DISTRICT, et al. 3 FROST, DRUP & ATLAS 4 134 West Sycamore STreet Willows, California 95988 5 BY: J. MARK ATLAS, ESQ. 6 JOINT WATER DISTRICTS: 7 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 8 Oroville, California 95965 BY: WILLIAM H. BABER, III, ESQ. 9 CALIFORNIA SPORTFISHING PROTECTION ALLIANCE: 10 ROBERT J. BAIOCCHI 11 P.O. Box 357 Quincy, California 95971 12 BELLA VISTA WATER DISTRICT: 13 BRUCE L. BELTON, ESQ. 14 2525 Park Marina Drive, Suite 102 Redding, California 96001 15 WESTLANDS WATER DISTRICT: 16 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 17 400 Capitol Mall, 27th Floor Sacramento, California 95814 18 BY: THOMAS W. BIRMINGHAM, ESQ. AMELIA MINABERRIGARAI, ESQ. 19 THE BAY INSTITUTE OF SAN FRANCISCO: 20 GRAY 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 7999 1 REPRESENTATIVES 2 LEAGUE OF WOMEN VOTERS: 3 ROBERTA BORGONOVO 4 2480 Union Street San Francisco, California 94123 5 UNITED STATES DEPARTMENT OF THE INTERIOR: 6 OFFICE OF THE SOLICITOR 7 2800 Cottage Way, Roon E1712 Sacramento, California 95825 8 BY: ALF W. BRANDT, ESQ. 9 CALIFORNIA URBAN WATER AGENCIES: 10 BYRON M. BUCK 455 Capitol Mall, Suite 705 11 Sacramento, California 95814 12 RANCHO MURIETA COMMUNITY SERVICES DISTRICT: 13 MCDONOUGH, HOLLAND & ALLEN 555 Capitol Mall, 9th Floor 14 Sacramento, California 95814 BY: VIRGINIA A. CAHILL, ESQ. 15 CALIFORNIA DEPARTMENT OF FISH AND GAME: 16 OFFICE OF THE ATTORNEY GENERAL 17 1300 I Street, Suite 1101 Sacramento, California 95814 18 BY: MATTHEW CAMPBELL, ESQ. 19 NATURAL RESOURCES DEFENSE COUNCIL: 20 HAMILTON CANDEE, ESQ. 71 Stevenson Street 21 San Francisco, California 94105 22 ARVIN-EDISON WATER STORAGE DISTRICT, et al.: 23 DOOLEY HERR & WILLIAMS 3500 West Mineral King Avenue, Suite C 24 Visalia, California 93191 BY: DANIEL M. DOOLEY, ESQ. 25 CAPITOL REPORTERS (916) 923-5447 8000 1 REPRESENTATIVES 2 SACRAMENTO MUNICIPAL UTILITY DISTRICT: 3 LESLIE A. DUNSWORTH, ESQ. 4 6201 S Street Sacramento, California 95817 5 SOUTH SAN JOAQUIN IRRIGATION DISTRICT, et al.: 6 BRAY, GEIGER, RUDQUIST & NUSS 7 311 East Main Street, 4th Floor Stockton, California 95202 8 BY: STEVEN P. EMRICK, ESQ. 9 EAST BAY MUNICIPAL UTILITY DISTRICT: 10 EBMUD OFFICE OF GENERAL COUNSEL 375 Eleventh Street 11 Oakland, California 94623 BY: FRED ETHERIDGE, ESQ. 12 GOLDEN GATE AUDUBON SOCIETY: 13 ARTHUR FEINSTEIN 14 2530 San Pablo Avenue, Suite G Berkeley, California 94702 15 CONAWAY CONSERVANCY GROUP: 16 UREMOVIC & FELGER 17 P.O. Box 5654 Fresno, California 93755 18 BY: WARREN P. FELGER, ESQ. 19 THOMES CREEK WATER ASSOCIATION: 20 THOMES CREEK WATERSHED ASSOCIATION P.O. Box 2365 21 Flournoy, California 96029 BY: LOIS FLYNNE 22 COURT APPOINTED REPS OF WESTLANDS WD AREA 1, et al.: 23 LAW OFFICES OF SMILAND & KHACHIGIAN 24 601 West Fifth Street, Seventh Floor Los Angeles, California 90075 25 BY: CHRISTOPHER G. FOSTER, ESQ. CAPITOL REPORTERS (916) 923-5447 8001 1 REPRESENTATIVES 2 CITY AND COUNTY OF SAN FRANCISCO: 3 OFFICE OF THE CITY ATTORNEY 4 1390 Market Street, Sixth Floor San Francisco, California 94102 5 BY: DONN W. FURMAN, ESQ. 6 CAMP FAR WEST IRRIGATION DISTRICT, et al.: 7 DANIEL F. GALLERY, ESQ. 926 J Street, Suite 505 8 Sacramento, California 95814 9 BOSTON RANCH COMPANY, et al.: 10 J.B. BOSWELL COMPANY 101 West Walnut Street 11 Pasadena, California 91103 BY: EDWARD G. GIERMANN 12 SAN JOAQUIN RIVER GROUP AUTHORITY, et al.: 13 GRIFFIN, MASUDA & GODWIN 14 517 East Olive Street Turlock, California 95381 15 BY: ARTHUR F. GODWIN, ESQ. 16 NORTHERN CALIFORNIA WATER ASSOCIATION: 17 RICHARD GOLB 455 Capitol Mall, Suite 335 18 Sacramento, California 95814 19 PLACER COUNTY WATER AGENCY, et al.: 20 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 400 Capitol Mall, 27th Floor 21 Sacramento, California 95814 BY: JANET GOLDSMITH, ESQ. 22 ENVIRONMENTAL DEFENSE FUND: 23 THOMAS J. GRAFF, ESQ. 24 5655 College Avenue, Suite 304 Oakland, California 94618 25 CAPITOL REPORTERS (916) 923-5447 8002 1 REPRESENTATIVES 2 CALAVERAS COUNTY WATER DISTRICT: 3 SIMON GRANVILLE 4 P.O. Box 846 San Andreas, California 95249 5 CHOWCHILLA WATER DISTRICT, et al.: 6 GREEN, GREEN & RIGBY 7 P.O. Box 1019 Madera, California 93639 8 BY: DENSLOW GREEN, ESQ. 9 CALIFORNIA FARM BUREAU FEDERATION: 10 DAVID J. GUY, ESQ. 2300 River Plaza Drive 11 Sacramento, California 95833 12 SANTA CLARA VALLEY WATER DISTRICT: 13 MORRISON & FORESTER 755 Page Mill Road 14 Palo Alto, California 94303 BY: KEVIN T. HAROFF, ESQ. 15 CITY OF SHASTA LAKE: 16 ALAN N. HARVEY 17 P.O. Box 777 Shasta Lake, California 96019 18 COUNTY OF STANISLAUS: 19 MICHAEL G. HEATON, ESQ. 20 926 J Street Sacramento, California 95814 21 GORRILL LAND COMPANY: 22 GORRILL LAND COMPANY 23 P.O. Box 427 Durham, California 95938 24 BY: DON HEFFREN 25 CAPITOL REPORTERS (916) 923-5447 8003 1 REPRESENTATIVES 2 SOUTH DELTA WATER AGENCY: 3 JOHN HERRICK, ESQ. 4 3031 West March Lane, Suite 332 East Stockton, California 95267 5 COUNTY OF GLENN: 6 NORMAN Y. HERRING 7 525 West Sycamore Street Willows, California 95988 8 REGIONAL COUNCIL OF RURAL COUNTIES: 9 MICHAEL B. JACKSON 10 1020 Twelfth Street, Suite 400 Sacramento, California 95814 11 DEER CREEK WATERSHED CONSERVANCY: 12 JULIE KELLY 13 P.O. Box 307 Vina, California 96092 14 DELTA TRIBUTARY AGENCIES COMMITTEE: 15 MODESTO IRRIGATION DISTRICT 16 P.O. Box 4060 Modesto, California 95352 17 BY: BILL KETSCHER 18 SAVE THE SAN FRANCISCO BAY ASSOCIATION: 19 SAVE THE BAY 1736 Franklin Street 20 Oakland, California 94612 BY: CYNTHIA L. KOEHLER, ESQ. 21 BATTLE CREEK WATERSHED LANDOWNERS: 22 BATTLE CREEK WATERSHED CONSERVANCY 23 P.O. Box 606 Manton, California 96059 24 25 CAPITOL REPORTERS (916) 923-5447 8004 1 REPRESENTATIVES 2 BUTTE SINK WATERFOWL ASSOCIATION, et al.: 3 MARTHA H. LENNIHAN, ESQ. 4 455 Capitol Mall, Suite 300 Sacramento, California 95814 5 CITY OF YUBA CITY: 6 WILLIAM P. LEWIS 7 1201 Civic Center Drive Yuba City, California 95993 8 BROWNS VALLEY IRRIGTAION DISTRICT, et al.: 9 BARTKIEWICZ, KRONICK & SHANAHAN 10 1011 22nd Street, Suite 100 Sacramento, California 95816 11 BY: ALAN B. LILLY, ESQ. 12 CONTRA COSTA WATER DISTRICT: 13 BOLD, POLISNER, MADDOW, NELSON & JUDSON 500 Ygnacio Valley Road, Suite 325 14 Walnut Creek, California 94596 BY: ROBERT B. MADDOW, ESQ. 15 GRASSLAND WATER DISTRICT: 16 DON MARCIOCHI 17 22759 South Mercey Springs Road Los Banos, California 93635 18 SAN LUIS CANAL COMPANY: 19 FLANAGAN, MASON, ROBBINS & GNASS 20 3351 North M Street, Suite 100 Merced, California 95344 21 BY: MIICHAEL L. MASON, ESQ. 22 STONY CREEK BUSINESS AND LAND OWNERS COALITION: 23 R.W. MCCOMAS 4150 County Road K 24 Orland, California 95963 25 CAPITOL REPORTERS (916) 923-5447 8005 1 REPRESENTATIVES 2 TRI-DAM POWER AUTHORITY: 3 TUOLUMNE UTILITIES DISTRICT 4 P.O. Box 3728 Sonora, California 95730 5 BY: TIM MCCULLOUGH 6 DELANO-EARLIMART IRRIGATION DISTRICT, et al.: 7 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 8 Oroville, California 95965 BY: JEFFREY A. MEITH, ESQ. 9 HUMANE FARMING ASSOCIATION: 10 BRADLEY S. MILLER. 11 1550 California Street, Suite 6 San Francisco, California 94109 12 CORDUA IRRIGATION DISTRICT, et al.: 13 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 14 P.O. Box 1679 Oroville, California 95965 15 BY: PAUL R. MINASIAN, ESQ. 16 EL DORADO COUNTY WATER AGENCY: 17 DE CUIR & SOMACH 400 Capitol Mall, Suite 1900 18 Sacramento, California 95814 BY: DONALD B. MOONEY, ESQ. 19 GLENN COUNTY FARM BUREAU: 20 STEVE MORA 21 501 Walker Street Orland, California 95963 22 MODESTO IRRIGATION DISTRICT: 23 JOEL MOSKOWITZ 24 P.O. Box 4060 Modesto, California 95352 25 CAPITOL REPORTERS (916) 923-5447 8006 1 REPRESENTATIVES 2 PACIFIC GAS & ELECTRIC: 3 RICHARD H. MOSS, ESQ. 4 P.O. Box 7442 San Francisco, California 94120 5 CENTRAL DELTA WATER AGENCY, et al.: 6 NOMELLINI, GRILLI & MCDANIEL 7 P.O. Box 1461 Stockton, California 95201 8 BY: DANTE JOHN NOMELLINI, ESQ. and 9 DANTE JOHN NOMELLINI, JR., ESQ. 10 TULARE LAKE BASIN WATER STORAGE UNIT: 11 MICHAEL NORDSTROM 1100 Whitney Avenue 12 Corcoran, California 93212 13 AKIN RANCH, et al.: 14 DOWNEY, BRAND, SEYMOUR & ROHWER 555 Capitol Mall, 10th Floor 15 Sacramento, California 95814 BY: KEVIN M. O'BRIEN, ESQ. 16 OAKDALE IRRIGATION DISTRICT: 17 O'LAUGHLIN & PARIS 18 870 Manzanita Court, Suite B Chico, California 95926 19 BY: TIM O'LAUGHLIN, ESQ. 20 SIERRA CLUB: 21 JENNA OLSEN 85 Second Street, 2nd Floor 22 San Francisco, California 94105 23 YOLO COUNTY BOARD OF SUPERVISORS: 24 LYNNEL POLLOCK 625 Court Street 25 Woodland, California 95695 CAPITOL REPORTERS (916) 923-5447 8007 1 REPRESENTATIVES 2 PATRICK PORGENS & ASSOCIATES: 3 PATRICK PORGENS 4 P.O. Box 60940 Sacramento, California 95860 5 BROADVIEW WATER DISTRICT, et al.: 6 DIANE RATHMANN 7 P.O. Box 156 Dos Palos, California 93620 8 FRIENDS OF THE RIVER: 9 BETSY REIFSNIDER 10 128 J Street, 2nd Floor Sacramento, California 95814 11 MERCED IRRIGATION DISTRICT: 12 FLANAGAN, MASON, ROBBINS & GNASS 13 P.O. Box 2067 Merced, California 95344 14 BY: KENNETH M. ROBBINS, ESQ. 15 CENTRAL SAN JOAQUIN WATER CONSERVATION DISTRICT: 16 REID W. ROBERTS, ESQ. 311 East Main Street, Suite 202 17 Stockton, California 95202 18 METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA: 19 JAMES F. ROBERTS P.O. Box 54153 20 Los Angeles, California 90054 21 SACRAMENTO AREA WATER FORUM: 22 CITY OF SACRAMENTO 980 9th Street, 10th Floor 23 Sacramento, California 95814 BY: JOSEPH ROBINSON, ESQ. 24 25 CAPITOL REPORTERS (916) 923-5447 8008 1 REPRESENTATIVES 2 TUOLUMNE RIVER PRESERVATION TRUST: 3 NATURAL HERITAGE INSTITUTE 4 114 Sansome Street, Suite 1200 San Francisco, California 94194 5 BY: RICHARD ROOS-COLLINS, ESQ. 6 CALIFORNIA DEPARTMENT OF WATER RESOURCES: 7 DAVID A. SANDINO, ESQ. P.O. Box 942836 8 Sacramento, California 94236 9 FRIANT WATER USERS AUTHORITY: 10 GARY W. SAWYERS, ESQ. 575 East Alluvial, Suite 101 11 Fresno, California 93720 12 KERN COUNTY WATER AGENCY: 13 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 400 Captiol Mall, 27th Floor 14 Sacramento, California 95814 BY: CLIFFORD W. SCHULZ, ESQ. 15 SAN JOAQUIN RIVER EXCHANGE CONTRACTORS: 16 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 17 P.O. Box 1679 Oroville, California 95965 18 BY: MICHAEL V. SEXTON, ESQ. 19 SAN JOAQUIN COUNTY: 20 NEUMILLER & BEARDSLEE P.O. Box 20 21 Stockton, California 95203 BY: THOMAS J. SHEPHARD, SR., ESQ. 22 CITY OF STOCKTON: 23 DE CUIR & SOMACH 24 400 Capitol Mall, Suite 1900 Sacramento, California 95814 25 BY: PAUL S. SIMMONS, ESQ. CAPITOL REPORTERS (916) 923-5447 8009 1 REPRESENTATIVES 2 ORLAND UNIT WATER USERS' ASSOCIATION: 3 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 4 P.O. Box 1679 Oroville, California 95965 5 BY: M. ANTHONY SOARES, ESQ. 6 GLENN-COLUSA IRRIGATION DISTRICT: 7 DE CUIR & SOMACH 400 Capitol Mall, Suite 1900 8 Sacramento, California 95814 BY: STUART L. SOMACH, ESQ. 9 NORTH SAN JOAQUIN WATER CONSERVATION DISTRICT: 10 JAMES F. SORENSEN CONSULTING CIVIL ENGINEER, INC.: 11 209 South Locust Street Visalia, California 93279 12 BY: JAMES F. SORENSEN 13 PARADISE IRRIGATION DISTRICT: 14 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 15 Oroville, California 95965 BY: WILLIAM H. SPRUANCE, ESQ. 16 COUNTY OF COLUSA: 17 DONALD F. STANTON, ESQ. 18 1213 Market Street Colusa, California 95932 19 COUNTY OF TRINITY: 20 COUNTY OF TRINITY - NATURAL RESOURCES 21 P.O. Box 156 Hayfork, California 96041 22 BY: TOM STOKELY 23 CITY OF REDDING: 24 JEFFERY J. SWANSON, ESQ. 2515 Park Marina Drive, Suite 102 25 Redding, California 96001 CAPITOL REPORTERS (916) 923-5447 8010 1 REPRESENTATIVES 2 TULARE IRRIGATION DISTRICT: 3 TEHEMA COUNTY RESOURCE CONSERVATION DISTRICT 4 2 Sutter Street, Suite D Red Bluff, California 96080 5 BY: ERNEST E. WHITE 6 STATE WATER CONTRACTORS: 7 BEST BEST & KREIGER P.O. Box 1028 8 Riverside, California 92502 BY: CHARLES H. WILLARD 9 COUTNY OF TEHEMA, et al.: 10 COUNTY OF TEHEMA BOARD OF SUPERVISORS 11 P.O. Box 250 Red Bluff, California 96080 12 BY: CHARLES H. WILLARD 13 MOUNTAIN COUNTIES WATER RESOURCES ASSOCIATION: 14 CHRISTOPHER D. WILLIAMS P.O. Box 667 15 San Andreas, California 95249 16 JACKSON VALLEY IRRIGATION DISTRICT: 17 HENRY WILLY 6755 Lake Amador Drive 18 Ione, California 95640 19 SOLANO COUNTY WATER AGENCY, et al.: 20 HERUM, CRABTREE, DYER, ZOLEZZI & TERPSTRA 2291 West March Lane, S.B. 100 21 Stockton, California 95207 BY: JEANNE M. ZOLEZZI, ESQ. 22 23 ---oOo--- 24 25 CAPITOL REPORTERS (916) 923-5447 8011 1 I N D E X 2 ---oOo--- 3 4 PAGE 5 OPENING OF HEARING 8013 6 END OF PROCEEDINGS 8074 7 CROSS-EXAMINATION OF THE EXCHANGE CONTRACTORS: 8 THOMAS BIRMINGHAM 8013 9 MICHAEL JACKSON 8035 10 REBUTTAL TESTIMONY OF SOUTH DELTA WATER AGENCY: 11 JOHN HERRICK 8048 12 CROSS-EXAMINATION OF SOUTH DELTA WATER AGENCY: 13 BY THE BOARD 8053 14 ---oOo--- 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 8012 1 WEDNESDAY, DECEMBER 16, 1998, 9:00 A.M. 2 SACRAMENTO, CALIFORNIA 3 ---oOo--- 4 C.O. CAFFREY: All right, we are on the record. Good 5 morning to all. We are hopefully at the day where we will 6 complete Phase V of the Bay-Delta Hearing process. And 7 Mr. Birmingham was cross-examining Mr. Deverel. 8 Good morning, gentlemen. 9 DR. DEVEREL: Good morning. 10 MR. BIRMINGHAM: Good morning. 11 ---oOo--- 12 CROSS-EXAMINATION OF THE EXCHANGE CONTRACTORS 13 BY WESTLANDS WATER DISTRICT 14 BY THOMAS BIRMINGHAM 15 MR. BIRMINGHAM: Dr. Deverel, when we concluded your 16 cross-examination yesterday I was asking you questions 17 about Westlands Water District's Exhibit 103, which you 18 testified is a cross-section prepared as a result of USGS 19 studies that depicts the 1952 to 1984 groundwater table in 20 a cross-section that is marked P6 on the west to M1 on the 21 east. Is that correct? 22 DR. DEVEREL: That's right. 23 MR. BIRMINGHAM: And I believe you stated that you 24 couldn't recall the exact location that the cross-section 25 depicted on Westlands Water District's Exhibit 103? CAPITOL REPORTERS (916) 923-5447 8013 1 DR. DEVEREL: Actually, I could not recall the exact 2 location of M1. I know the other locations of the other 3 ones, but M1. 4 MR. BIRMINGHAM: I am handing to you a document, or a 5 map which I will mark next in order. It would be Westlands 6 Water District's Exhibit 104. And I have additional copies 7 for members of the audience and for Members of the Board. 8 And I will put a copy of Westlands Water District's 104 on 9 the overhead. 10 Dr. Deverel, are you familiar with Westlands Water 11 District's 104? 12 DR. DEVEREL: Yes, I am. 13 MR. BIRMINGHAM: What is Westlands Water District's 14 104? 15 DR. DEVEREL: This is a map that I prepared 16 illustrating the location of different cross-sections that 17 we've been speaking about. 18 MR. BIRMINGHAM: There is a cross-section that is 19 marked F1 on Westlands Water District's Exhibit 104; is 20 that correct? 21 DR. DEVEREL: That's right. 22 MR. BIRMINGHAM: What is represented by cross-section 23 F1? 24 DR. DEVEREL: This is a cross-section that extends 25 from Panoche Road at I-5 to the approximate location -- to CAPITOL REPORTERS (916) 923-5447 8014 1 the location of the field that we've been discussing in 2 Broadview Water District. The F1 is, actually, a well 3 cluster located near the groundwater divide along this 4 cross-section. 5 MR. BIRMINGHAM: And that is the cross-section which 6 has been marked for identification as Exchange Contractors' 7 Exhibit 5A? 8 DR. DEVEREL: I believe so. 9 MR. BIRMINGHAM: The cross-section on Westlands Water 10 District's 104 that has two dots labeled P5 and P3, can 11 you, please, tell the Board what is represented by that 12 cross-section? 13 DR. DEVEREL: This is the second cross-section that 14 we discussed yesterday. It also extends from Panoche Road 15 at I-5, but extends across the valley to Mendota. There is 16 a site called P1 here at Mendota. And then there are 17 various well clusters along this cross-section. P6 is at 18 Panoche Road at I-5. And P1 is at the edge of the 19 cross-section near Mendota. 20 MR. BIRMINGHAM: Now, on Westlands Water District's 21 104, P6 and P1 are not represented; is that correct? 22 DR. DEVEREL: Not on this map. 23 MR. BIRMINGHAM: I'm showing to you Westlands Water 24 District's Exhibit 102. Westlands Water District's 102 is 25 the cross-section which is depicted by the P5 P3 CAPITOL REPORTERS (916) 923-5447 8015 1 cross-section on Westlands Water District's 104; is that 2 correct? 3 DR. DEVEREL: That's right. 4 MR. BIRMINGHAM: The cross-section on Westlands Water 5 District's 104, which is identified as M3, can you, please, 6 explain to the Board what is represented by that 7 cross-section? 8 DR. DEVEREL: This delineates the third cross-section 9 that we talked about that extends also from Panoche Road at 10 I-5 to a site west of Tranquility about here called M1. 11 There are a number of cluster sites along this 12 cross-section, also. M3 being one of them. M1 at the end 13 of the cross-section being another. 14 MR. BIRMINGHAM: Now, M1 is not represented on 15 Westlands Water District's 104; is that correct? 16 DR. DEVEREL: No. That's right. 17 MR. BIRMINGHAM: I'm showing you Westlands Water 18 District's Exhibit 103. Westlands Water District's 103 is 19 a cross-section which is depicted on Westlands Water 20 District's 104 as the M3 cross-section; is that correct? 21 DR. DEVEREL: That's right. 22 MR. BIRMINGHAM: To put the location of these 23 cross-sections in a more easily understood form, I am 24 placing on the overhead Exchange Contractors' Exhibit 4G. 25 Dr. Deverel, the overhead of Exchange CAPITOL REPORTERS (916) 923-5447 8016 1 Contractors's Exhibit 4G, which has been placed on the 2 overhead projector, has three lines drawn on it; is that 3 correct? 4 DR. DEVEREL: That's right. 5 MR. BIRMINGHAM: One line is identified as P6 F1 FYR; 6 is that correct? 7 DR. DEVEREL: That's right. 8 MR. BIRMINGHAM: What does that line represent? 9 DR. DEVEREL: This is the same line that was shown on 10 that previous map that extends from Panoche Road at 11 approximately I-5 to the field in Broadview Water District 12 that we discussed earlier in Section 35. This is the F1 13 site that is at the approximate location of the 14 groundwater divide, actually, just west of the groundwater 15 divide. 16 MR. BIRMINGHAM: And when you say the "previous map," 17 you're referring to Westlands Water District's 104? 18 DR. DEVEREL: That's right. 19 MR. BIRMINGHAM: Did you place the line marked P6 F1 20 on the overhead Exchange Contractors' Exhibit 4G? 21 DR. DEVEREL: Yes, I did. 22 MR. BIRMINGHAM: There is another line that has been 23 drawn on Exchange Contractors' Exhibit 4G and that is a 24 line that's identified as P6 P1; is that correct? 25 DR. DEVEREL: That's right. CAPITOL REPORTERS (916) 923-5447 8017 1 MR. BIRMINGHAM: What is represented by that line? 2 DR. DEVEREL: That is the cross-section that was also 3 delineated in the previous map that extends from about 4 Panoche Road at I-5 to Mendota. The P6 well cluster is at 5 the head of the alluvial fan. And the P1 well cluster is 6 at Mendota. 7 MR. BIRMINGHAM: And when you say the "previous map," 8 again, you're referring to Westlands' 104? 9 DR. DEVEREL: Yes, Westlands' 104. 10 MR. BIRMINGHAM: P6 P1 line on Exchange Contractors' 11 4G is the cross-section represented by Westlands Water 12 District's 102? 13 DR. DEVEREL: That's right. 14 MR. BIRMINGHAM: Then finally on Exchange 15 Contractors' Exhibit 4G there is a line which has been 16 drawn P6 M1. Is that the cross-section which appears as 17 the M3 cross-section on Westlands Water District's Exhibit 18 104? 19 DR. DEVEREL: Yes, it is. 20 MR. BIRMINGHAM: And that's the cross-section that 21 has also been marked for identification as Westlands Water 22 District's 103? 23 DR. DEVEREL: That's right. 24 MR. MINASIAN: Mr. Birmingham, for the record why 25 don't I mark this 4G.1 and serve it on everybody? CAPITOL REPORTERS (916) 923-5447 8018 1 MR. BIRMINGHAM: That would be appreciated, 2 Mr. Minasian. 3 C.O. CAFFREY: Thank you, Mr. Minasian. 4 MR. BIRMINGHAM: When Mr. Minasian refers to "this," 5 I think he's referring to the exhibit in which Dr. Deverel 6 has drawn lines which we just described on Exchange 7 Contractors' Exhibit 4G. 8 C.O. CAFFREY: Correct. 9 MR. BIRMINGHAM: Dr. Deverel, I want to make sure 10 that I understand the purpose of your testimony before the 11 State Water Resources Control Board. And I'd like to ask 12 you a number of questions related to the cross-examination 13 of you by Mr. Nomellini. 14 Now, Mr. Nomellini asked you a question to which I 15 objected and the question was as follows: 16 (Reading): 17 "Now, given that we are going to take all the 18 water away from Westlands Water District based 19 on this experiment, are there other experiments 20 that you think we ought to conduct before we 21 reach this conclusion?" 22 Do you recall Mr. Nomellini asking you that 23 question? 24 DR. DEVEREL: Yes, I do. 25 MR. BIRMINGHAM: Now, you did not respond to the CAPITOL REPORTERS (916) 923-5447 8019 1 question, because I objected. And after some discussion 2 the very learned Hearing Officer sustained the objection. 3 MR. MINASIAN: Objection. Fawning. 4 MR. NOMELLINI: Say "yes." 5 MEMBER BROWN: See how that's done, Mr. Nomellini? 6 MR. NOMELLINI: Yes. 7 MR. BIRMINGHAM: But, Dr. Deverel, you are not 8 proposing as a result of any experiment that you've 9 conducted that water should be taken away from Westlands 10 Water District, are you? 11 DR. DEVEREL: No, I'm not. 12 MR. BIRMINGHAM: In fact, you're not suggesting based 13 upon any experiment that water should be taken away from 14 any water user? 15 DR. DEVEREL: No, I'm not. 16 MR. BIRMINGHAM: In response to a question by 17 Mr. Nomellini about additional experiments that might be 18 conducted, you stated that from a scientific prospective 19 more data are always a good idea. 20 DR. DEVEREL: That's right. 21 MR. BIRMINGHAM: And you would not propose that the 22 Board base any decision on a single experiment conducted 23 over a three-year period in a single 27-acre field? 24 DR. DEVEREL: No, I would not. 25 MR. BIRMINGHAM: Now, Dr. Deverel, am I correct that CAPITOL REPORTERS (916) 923-5447 8020 1 the basic point of your testimony does not relate to the 2 downslope movement of groundwater? 3 DR. DEVEREL: Maybe you could define what you mean by 4 "basic point." You made a number of points -- or I tried 5 to make a number of points in my testimony, perhaps, you 6 could specify more what you mean. 7 MR. BIRMINGHAM: Well, in your testimony you talk 8 about the need for drainage? 9 DR. DEVEREL: That's right. 10 MR. BIRMINGHAM: And you talk about the need for 11 drainage on the west side of the San Joaquin Valley? 12 DR. DEVEREL: Uh-huh. 13 MR. BIRMINGHAM: Yes? 14 DR. DEVEREL: Yes, I do. Sorry. 15 MR. BIRMINGHAM: And you've indicated, I think this 16 is consistent with the testimony of Mr. White, but you've 17 indicated that the need for drainage is a regional issue? 18 DR. DEVEREL: That's correct. 19 MR. BIRMINGHAM: And that in areas within, say, CCID, 20 or Broadview that the need for drainage results from a 21 number of things, but among the things is the pressure 22 created by the buildup of a water table? 23 DR. DEVEREL: Yes. The need for drainage is created 24 by pressures as the result of increasing water levels as 25 one moves upslope from drained areas. CAPITOL REPORTERS (916) 923-5447 8021 1 MR. BIRMINGHAM: I've placed on the overhead 2 Westlands Water District's 107. 3 MR. MINASIAN: 97. 4 MR. BIRMINGHAM: Excuse me, 97. Thank you very much. 5 Now, when we talk about upslope areas, and you mentioned 6 this very briefly yesterday, Dr. Deverel, but when we talk 7 about upslope areas we're talking about areas that are 8 upgradient from which there is a water table that applies 9 pressure, or through water can move downgradient; is that 10 correct? 11 DR. DEVEREL: That's basically true. 12 MR. BIRMINGHAM: And so if I point to an area, Camp 13 13 on Westlands' 97 -- maybe it would be easier if I used 14 Exchange Contractors' Exhibit 4G.1. Now, Camp 13 is 15 basically at the bottom of the groundwater gradient; is 16 that right, Dr. Deverel? 17 DR. DEVEREL: In terms of drained areas, yes, it is. 18 There are other areas that are further downgradient past 19 Camp 13, but generally there are no drainage systems there. 20 The water table drops off as you go east. 21 MR. BIRMINGHAM: And upgradient of Camp 13 is the 22 Firebaugh Canal Water District? 23 DR. DEVEREL: That's right. 24 MR. BIRMINGHAM: And so the application of irrigation 25 water in Firebaugh Canal Water District creates pressure CAPITOL REPORTERS (916) 923-5447 8022 1 which adds to the need for drainage in Camp 13 of Central 2 California Irrigation District? 3 DR. DEVEREL: That's true. 4 MR. BIRMINGHAM: And upslope of Firebaugh Canal Water 5 District there are areas of Panoche Water District, 6 Broadview Water District and Westlands Water District? 7 DR. DEVEREL: That's right. 8 MR. BIRMINGHAM: And the application of irrigation 9 water in Panoche Water District, Broadview Water District 10 and Westlands Water District can create pressure giving 11 rise to the need for additional drainage in Firebaugh Canal 12 Water District? 13 DR. DEVEREL: That's true. 14 MR. BIRMINGHAM: And upslope of Broadview Water 15 District there are areas of Westlands Water District? 16 DR. DEVEREL: Yes, that's true. 17 MR. BIRMINGHAM: And, now, to be more specific, the 18 areas within Westlands Water District that are upslope of 19 Broadview Water District, are those areas that are east of 20 the groundwater divide? 21 DR. DEVEREL: That is true. 22 MR. BIRMINGHAM: And you testified earlier that the 23 groundwater divide on the cross-section marked P6 F1 on 24 Exchange Contractors' Exhibit 4G.1 is a little bit to the 25 east of the area marked F1; is that correct? CAPITOL REPORTERS (916) 923-5447 8023 1 DR. DEVEREL: That was true when the groundwater 2 divide was mapped in 1984, yes. 3 MR. BIRMINGHAM: So it would be those areas that are 4 to the east or northeast of F1 that are upslope of -- let 5 me restate the question. 6 It would be those areas in Westlands that are to 7 the east or northeast of the point F1 that are upslope of 8 Broadview Water District? 9 DR. DEVEREL: In general, that's true. I'm not sure 10 about the position of the groundwater divide today, but 11 that's the approximate location of the groundwater divide. 12 It could be shifted to the west a little bit. 13 MR. BIRMINGHAM: And it would have shifted to the 14 west a little bit as a result of the application of 15 additional irrigation water? 16 DR. DEVEREL: That's right. The water levels have 17 continued to rise and that would shift the groundwater 18 divide to the west, in general. 19 MR. BIRMINGHAM: And it's the pressure that is 20 created by the buildup of the water table which in part 21 gives rise to the need for drainage within Camp 13, 22 Firebaugh Canal Water District, Broadview Water District 23 and Westlands Water District? 24 DR. DEVEREL: That's right. 25 MR. BIRMINGHAM: Now, if I understand the point of CAPITOL REPORTERS (916) 923-5447 8024 1 your testimony, it's that -- well, maybe I could ask you a 2 question: 3 With respect to the development or the buildup of 4 the groundwater table and the resulting additional need for 5 drainage, what is the point of your testimony? 6 DR. DEVEREL: Briefly, the point of my testimony is 7 that as time goes on the water table will continue to build 8 up in Western San Joaquin Valley, and in particular, this 9 area that's delineated on this map. 10 This rise in the water table and increase in 11 pressures will cause an increased need for drainage in an 12 increased area that's subject to a shallow water table, 13 water table that's within 6 or 7 feet of land surface 14 creating not only additional pressures on existing drainage 15 systems, but increasing need for drainage to alleviate 16 salinity problems that are associated with the high water 17 table. 18 MR. BIRMINGHAM: And, again, to protect areas in Camp 19 13 you're not proposing that water be taken away from 20 Firebaugh Canal Water District? 21 DR. DEVEREL: No, I'm not. 22 MR. BIRMINGHAM: Or that land should be retired in 23 Firebaugh Canal Water District? 24 DR. DEVEREL: No, I'm not proposing any land 25 retirement scheme. CAPITOL REPORTERS (916) 923-5447 8025 1 MR. BIRMINGHAM: And so the same thing would be true 2 with respect to the impacts of irrigation in Broadview 3 Water District on Firebaugh Canal Water District, you're 4 not proposing to take water away from Broadview Water 5 District? 6 DR. DEVEREL: No. 7 MR. BIRMINGHAM: Or to retire land in Broadview Water 8 District? 9 DR. DEVEREL: No. I'm really trying to say that if 10 we are going to implement that as a management strategy we 11 need to do so based on the regional hydrologic issue, which 12 I've tried to delineate in my testimony. 13 MR. BIRMINGHAM: Paul, do you have 5R? 14 MR. MINASIAN: Sure. I'll put it up for you. 15 MR. BIRMINGHAM: Dr. Deverel, Mr. Minasian has just 16 placed on the overhead projector Exchange Contractors' 17 Exhibit 5R. Again, briefly, could you, please, describe 18 for us what is depicted by Exchange Contractors' Exhibit 19 5R? 20 DR. DEVEREL: This shows the change in water levels 21 in wells at two sites on the field that we've pointed to on 22 the previous map on Exchange Contractors' Exhibit 5G-1. 23 MR. BIRMINGHAM: And that's the field that is in that 24 portion of Section 35 as depicted on Exchange Contractors' 25 Exhibit 4G? CAPITOL REPORTERS (916) 923-5447 8026 1 DR. DEVEREL: That's right 4G-1 I believe it is, 2 Section 35 in Broadview Water District. 3 MR. BIRMINGHAM: And, again, what does the graphs on 4 5R tell us? 5 DR. DEVEREL: They show the change in water levels 6 that occurred in a field that we studied over approximately 7 a three-year period. And it basically shows the influence 8 of regional hydraulic pressures on the field, on the 9 groundwater in the field as a result of when the field 10 wasn't irrigated. So one can follow the changes in water 11 levels. 12 This is an irrigated period. This is, actually, 13 an individual irrigation. The water table drops after the 14 irrigation season in September and October. And then 15 during this non-irrigated period, when the field was not 16 irrigated, water levels rose during this period, during the 17 pre-irrigation period as well as during the summer 18 irrigation period. 19 MR. BIRMINGHAM: And I believe you testified in 20 response to questions by Mr. Minasian that it is your 21 opinion that the rise in the groundwater table that is 22 depicted on the bottom graph of Exhibit 5R for the 23 non-irrigated period resulted from the pressure created by 24 upslope water tables; is that correct? 25 DR. DEVEREL: That's true. CAPITOL REPORTERS (916) 923-5447 8027 1 MR. BIRMINGHAM: Now, in response to a question by 2 Mr. Minasian you stated that the influence of the upslope 3 water pressure, using your words, "decays exponentially as 4 we move away from the source." 5 Do you recall stating that to Mr. Minasian? 6 DR. DEVEREL: That is true. 7 MR. BIRMINGHAM: Can you, please, tell us what you 8 meant by "decays exponentially as we move away from the 9 source"? 10 DR. DEVEREL: In general, it's a hydraulic principle 11 of groundwater that the affects of pressure are most 12 clearly seen, if you will, at those locations that are 13 closest to the area of a change in pressure. 14 In other words, if you pump a well, for example, 15 there's a drawdown that occurs that's exponential to the 16 location of the drawdown. So very close to the well you'd 17 see a very strong affect, but as you move away from the 18 well exponentially proportional to distance the pressure 19 decreases, or the pressure affect decreases. 20 MR. BIRMINGHAM: So I take it from your answer that 21 the affect which is depicted for the non-irrigated period 22 on Exhibit 5R is a result of activities or influences on 23 nearby adjacent fields? 24 DR. DEVEREL: That would be true that most of the 25 affect that we see here is probably the result of adjacent CAPITOL REPORTERS (916) 923-5447 8028 1 areas. I'm unprepared to say exactly how far that 2 influence extends, but I would say, you know, adjacent 3 fields probably. 4 MR. BIRMINGHAM: But you'd agree with me that the 5 influence that is depicted for the specific field 6 identified, or which the experiments was conducted is not a 7 result of water pressure within Westlands Water District? 8 DR. DEVEREL: Not directly, probably, no, given that 9 this is downslope of Broadview Water District. 10 MR. BIRMINGHAM: Now, again, going back to Exchange 11 Contractors' Exhibit 4G.1, if a similar experiment were to 12 be conducted in a field near the boundary of Westlands 13 Water District and Broadview Water District and you 14 obtained similar results, then, you would say that that was 15 a result -- that the increase in water table was a result 16 of activities upslope within Westlands Water District? 17 DR. DEVEREL: I would say that. 18 MR. BIRMINGHAM: But when you say the influence 19 decreases exponentially, you mean that activities two miles 20 away would have significantly less impacts than activities 21 a mile away? 22 DR. DEVEREL: That's true for that individual field. 23 I think one has to add that there is a general regional 24 affect. In other words, there's a propagation of pressure 25 that extends all the way up to the groundwater divide. One CAPITOL REPORTERS (916) 923-5447 8029 1 field is influencing the next field, et cetera, and there 2 is a propagation of regional affects. 3 MR. BIRMINGHAM: So, again, what is going on in Camp 4 13 of CCID may be influenced by things occurring in Panoche 5 as well as in Firebaugh? 6 DR. DEVEREL: That is true. 7 MR. BIRMINGHAM: But the impacts of the activities 8 within Firebaugh Canal Water District on Camp 13 are 9 greater than the impacts of the activities in Panoche Water 10 District? 11 DR. DEVEREL: I would say that the direct affect that 12 one would observe in a field in Camp 13, in other words, 13 the changes in water levels such as we observed in the 14 field that we studied, would be more the result of 15 activities in Firebaugh Canal Water District. However, 16 those general affects are propagated throughout the system. 17 MR. BIRMINGHAM: And when you say "propagated 18 throughout the system" you mean on all those lands that are 19 upslope of the field, the hypothetical field we are talking 20 about in Camp 13? 21 DR. DEVEREL: That's right. 22 MR. BIRMINGHAM: And we're using the word "upslope" 23 as we defined it yesterday and earlier this morning? 24 DR. DEVEREL: That's right. 25 MR. BIRMINGHAM: Going back to Mr. Nomellini's CAPITOL REPORTERS (916) 923-5447 8030 1 cross-examination of you, Mr. Nomellini asked you the 2 following question, and to put it in context I will have to 3 read to you a series of questions and answers. 4 (Reading): 5 "Let's assume," Mr. Nomellini, "Let's assume 6 that we take the hypothesis and want to 7 implement some management with regard to this 8 hypothesis. I had erroneously concluded, I 9 think, that your testimony led to the management 10 burden falling on the low-land farmer or the 11 irrigator. And what I am hoping for is for 12 clarification by asking you to go to Exhibit 4G 13 and show us, since you've done studies in this 14 area, the aerial extent, if you can, in which 15 management of applied water would affect the 16 water in the hypothesis." 17 There was then an exchange between me, 18 Mr. Nomellini, and the Hearing Officer. And then 19 Mr. Nomellini asked you the following question: 20 (Reading): 21 "With regards to that definition and that 22 question, can you show us on 4G what areas would 23 fall into the aerial extent of management 24 opportunities?" 25 And you responded: CAPITOL REPORTERS (916) 923-5447 8031 1 (Reading): 2 "To define, let me define two areas. There is a 3 general definition of areas that are subject, or 4 have drainage systems on this map, and that 5 includes approximately 26 percent of Firebaugh 6 Canal Water District. It is my understanding 7 that most of Broadview Water District has a 8 drainage system. Part of Panoche Water District 9 has drainage systems. Camp 13 has some drainage 10 systems. 20 percent of Camp 13 has drainage 11 systems. So that would represent areas where 12 there are drainage systems. So areas upslope of 13 those areas principally in these areas here, 14 pointing out Panoche Water District and parts of 15 Westlands Water District are areas -- are part 16 of the same region whereby there are potentials 17 for -- or there are upslope pressure on 18 downslope drainage systems and also contribute 19 to the need for drainage in downslope areas. 20 Thus, also representing part of the region that 21 would be possibly manageable in terms of trying 22 to reduce drain flows in downsloped areas." 23 Do you recall being asked those questions and 24 providing those answers? 25 DR. DEVEREL: Yes, I recall that. CAPITOL REPORTERS (916) 923-5447 8032 1 MR. BIRMINGHAM: Now, again, not withstanding 2 Mr. Nomellini's valiant efforts to try to get you to 3 propose specific management activities, you are not 4 proposing management activities here today? 5 DR. DEVEREL: No, I am not, nor was I then. 6 MR. BIRMINGHAM: May I have one moment? That 7 concludes my cross-examination of Dr. Deverel. 8 C.O. CAFFREY: I'm sorry, you say you're completed? 9 MR. BIRMINGHAM: I'm done. 10 C.O. CAFFREY: You're done. Well, we need some 11 filler, you took me by surprise. I say that with the 12 greatest respect, Mr. Birmingham. Thank you so much. 13 Well, I believe that concludes, then, your 14 rebuttal case, Mr. Minasian. Is that right, sir? 15 MR. MINASIAN: Yes. There will be brief redirect, 16 Mr. Caffrey. I made a pledge to -- 17 C.O. CAFFREY: Let me see if we have questions from 18 the staff. 19 MS. LEIDIGH: No. 20 MR. HOWARD: No. 21 C.O. CAFFREY: I think we may have done that already, 22 I'm not sure. Anything from the Board? 23 MEMBER BROWN: None. 24 C.O. CAFFREY: All right. You want to go ahead with 25 your redirect? CAPITOL REPORTERS (916) 923-5447 8033 1 MR. MINASIAN: Yes. I made a pledge to Mr. Jackson 2 to open the subject of the well diagrams and profiles for 3 him. If Mr. Herrick and Mr. Nomellini would like to ask 4 questions, I will redirect to the extent of opening that so 5 Mr. Deverel can answer their questions. 6 MR. NOMELLINI: I am not Mr. Jackson. I made no such 7 request and I'm not making one now. 8 MR. MINASIAN: Mr. Herrick, are you interested? 9 MEMBER FORSTER: Mr. Jackson is in the cafeteria. 10 C.O. CAFFREY: That's his problem. Thank you, 11 Mr. Sexton. Mr. Sexton is going to see if he wants to -- 12 MR. BIRMINGHAM: Perhaps, rather than having 13 Mr. Minasian redirect this witness, Mr. Jackson could just 14 be afforded an opportunity, given that we are about to 15 close this phase of the proceedings, to reopen his 16 cross-examination of this witness, that might save us some 17 time. 18 C.O. CAFFREY: Yeah, we could do that. 19 MR. BIRMINGHAM: And I was -- 20 C.O. CAFFREY: He was not here to sign up when we did 21 and that's a good suggestion, Mr. Birmingham. We can just 22 handle it that way. 23 Mr. Jackson? 24 MR. JACKSON: Yes, sir. 25 C.O. CAFFREY: We're about to close Phase V. And we CAPITOL REPORTERS (916) 923-5447 8034 1 thought about allowing you to ask questions about the 2 exhibits that were brought forward by Mr. Birmingham 3 yesterday by offering redirect from Mr. Minasian. But then 4 we were just having some discussion and it was suggested by 5 Mr. Birmingham that we could just probably add you to the 6 list of cross-examiners at this point and you could just 7 question Mr. Deverel if that works for you, sir. 8 MR. JACKSON: Thank you, sir. 9 C.O. CAFFREY: Why don't you go ahead, then. Not to 10 stifle you, but recognizing that -- 11 MR. JACKSON: We'll be very fast. 12 C.O. CAFFREY: -- dispatch is a good thing since 13 we're trying to finish today. 14 MR. JACKSON: Yes. 15 C.O. CAFFREY: And less I sound like we're completely 16 finished after this, we still have to hear from one more 17 witness from Mr. Herrick. 18 ---oOo--- 19 CROSS-EXAMINATION OF THE EXCHANGE CONTRACTORS 20 BY REGIONAL COUNCIL OF RURAL COUNTIES 21 BY MICHAEL JACKSON 22 MR. JACKSON: Mr. Deverel, calling your attention to 23 I believe this is Westlands' 100, you testified yesterday 24 that water moves through the sand and the clay loam at a 25 very slow rate; is that correct? CAPITOL REPORTERS (916) 923-5447 8035 1 DR. DEVEREL: That's correct. 2 MR. JACKSON: And I believe you calculated as a 3 result of some of the questions of Mr. Birmingham that it 4 might take as long as 200 years for the water to move from 5 the area of the monitoring well that you were discussing to 6 the San Joaquin River? 7 DR. DEVEREL: No. I believe the question was in 8 relation to a 3-mile stretch extending from Westlands Water 9 District to the location of this field. I think we 10 estimated at that point it was 200 years to move about 3 11 miles. 12 MR. JACKSON: All right. In that circumstance, when 13 the water moves -- when a particle of water moves the 3 14 miles, does it displace other water and have a tendency to 15 move it? 16 DR. DEVEREL: Yes. Yes, there's a general movement 17 along the flow path. 18 MR. JACKSON: And that causes the water closest to 19 the river to be pressured toward the river, correct? 20 DR. DEVEREL: I think that I'll answer the question 21 in terms of pressure towards the river. The data indicates 22 that there is not groundwater moving towards the river in 23 this location. What you say is true, that groundwater 24 moves along the flow path and thus water is being moved in 25 a general stream along the flow path towards drainage CAPITOL REPORTERS (916) 923-5447 8036 1 systems. 2 MR. JACKSON: In this particular area is there 3 water -- is there salinity entering the river? 4 DR. DEVEREL: From groundwater? 5 MR. JACKSON: Yes. 6 DR. DEVEREL: The data does not indicate that there 7 is groundwater moving towards this river in this area. 8 MR. JACKSON: Then for this area there would be no 9 need for a valley drain; is that correct? 10 DR. DEVEREL: No, that's not true. The way I 11 answered your question was the groundwater does not move 12 toward the river. Groundwater moves toward drainage 13 systems which in turn discharge into the river, so that's 14 the way groundwater ends up in the river. 15 MR. JACKSON: The groundwater is, then, entering the 16 river? 17 DR. DEVEREL: Yes, through drainage systems, yes. 18 MR. JACKSON: And whose drainage systems are they? 19 DR. DEVEREL: The individual drain systems, my 20 understanding is they belong to the growers in which lands 21 they are installed. 22 MR. JACKSON: And in the case of the San Joaquin 23 River is that the folks who are closest to the river? 24 DR. DEVEREL: If you define closest to the river as 25 we've discussed in relation to Exchange Contractors' CAPITOL REPORTERS (916) 923-5447 8037 1 Exhibit 4G, that's true. You probably should define "close 2 to the river." 3 MR. JACKSON: Well, there is land that is riparian to 4 the river, correct? 5 DR. DEVEREL: Yes. 6 MR. JACKSON: And from the drainage systems on that 7 land there is salinity entering the river? 8 DR. DEVEREL: That is true. 9 MR. JACKSON: Is it solely the responsibility of 10 those drainers that salinity is entering the river, in your 11 opinion? 12 DR. DEVEREL: No, it is not my opinion that it is 13 theirs. 14 MR. JACKSON: Whose responsibility is it in your 15 opinion? 16 DR. DEVEREL: As I've stated I think it's a regional 17 hydrologic issue and hydrologic problem and it's the 18 responsibility of the entire region to develop a management 19 strategy to attempt to address the drainage issue. 20 MR. JACKSON: Is there an increase in drainage caused 21 by additional deliveries of water and applications on 22 upgradient lands? 23 DR. DEVEREL: I'm confused by your question. You're 24 asking if there is an affect on downstream -- downslope 25 areas as a result of additional water delivered to upslope CAPITOL REPORTERS (916) 923-5447 8038 1 areas? 2 MR. JACKSON: When water is delivered to upslope 3 areas does it have an affect on downslope landowners? 4 DR. DEVEREL: When water is applied in upslope areas 5 it does have pressure affects on downslope areas. 6 MR. JACKSON: Are those pressure affects decreasing 7 over time? 8 DR. DEVEREL: No, they're not. 9 MR. JACKSON: Are they increasing over time? 10 DR. DEVEREL: They appear to be increasing over time. 11 MR. JACKSON: Is there any way that the downslope 12 drainers can -- excuse me, let me withdraw that. 13 In the absence of a drain, is there any way that 14 the downslope drainers can control the water that is 15 entering the river given that water is being applied 16 upslope? 17 MR. BIRMINGHAM: I'm going to object to the question 18 on the grounds that it's cumulative. Mr. Nomellini went 19 into this very subject in great detail. I recognize that 20 Mr. Jackson was not here at the time, but there were 21 significant questions asked of this witness by 22 Mr. Nomellini on this very subject. 23 MR. JACKSON: Mr. Caffrey, there certainly were 24 significant questions answered. The rebuttal was an 25 attempt to sort of knock the edges off that testimony. And CAPITOL REPORTERS (916) 923-5447 8039 1 I simply want to put them back on it. 2 MR. BIRMINGHAM: Well, my cross-examination of this 3 witness was not rebuttal. It was a cross-examination, but 4 the record stands for itself. If there are edges on the 5 responses that Mr. Nomellini got from this witness, they're 6 in the record. 7 And given our efforts to resolve this today and 8 given the fact that Mr. Jackson has been given special 9 leave to reopen cross-examination, I would request that he 10 restrict his cross-examination to the documents that I 11 presented, the exhibits I presented yesterday, which were 12 the basis of his concern that he was being deprived of his 13 due process rights. 14 C.O. CAFFREY: Just a moment, please. I think that 15 Mr. Birmingham makes a very reasonable request, because 16 Mr. Jackson will have the opportunity to bring up anything 17 that he wants within the very, very broad scope of this 18 phase. And any rebuttal argument -- well, we're past 19 rebuttal, but he could actually present a rebuttal case. 20 We're not actually past rebuttal. If Mr. Jackson were to 21 insist to make a rebuttal case, then we would hear it 22 today. 23 But I think that the point that Mr. Birmingham 24 makes is a good one, that we need to limit this to these 25 particular documents and the narrower scope that we have CAPITOL REPORTERS (916) 923-5447 8040 1 discussed here many times with regard to rebuttal. 2 Please, proceed along those lines, Mr. Jackson. 3 And I will allow you to make a rebuttal case, if you wish 4 to. 5 MR. JACKSON: Mr. Deverel, calling your attention to, 6 I believe this is Westlands' 102, calling your attention to 7 the area just to the right of P4 on Exhibit 102, that is 8 the area we've been talking about as the groundwater 9 divide; is that correct? 10 DR. DEVEREL: That's right, at that location. 11 MR. JACKSON: Does all of the water that is applied 12 to the right of the highest area to the right of P4, is 13 that upgradient of the river? 14 DR. DEVEREL: You're referring to this area here to 15 the right of P4? 16 MR. JACKSON: Yes, sir, right above the 64.5 on 17 Exhibit 102. 18 DR. DEVEREL: Yes. In general, the water applied 19 here is upgradient to the river. 20 MR. JACKSON: Does water applied there increase 21 pressure downgradient to the river? 22 DR. DEVEREL: Increase pressure down -- 23 MR. JACKSON: Increase pressure on the groundwater 24 table forcing it in the direction of the river? 25 DR. DEVEREL: I would put it that this groundwater CAPITOL REPORTERS (916) 923-5447 8041 1 table, because of its slope has pressure associated with it 2 that is propagated along this slope down to areas that I'm 3 pointing to here near P1. There are no drainage systems in 4 this area. 5 MR. JACKSON: And so the water would move, then, 6 through the soil as subsurface flow? 7 DR. DEVEREL: That's right. 8 MR. JACKSON: Do you know the rate at which that 9 water is moving? 10 DR. DEVEREL: Approximately the same rate that I 11 discussed in previous testimony. At the rate for a 12 particle to move a mile it ranges from about 25 years to 13 about 125 years. 14 MR. JACKSON: So if we stopped irrigating that area, 15 it would take 100 to 125 years for the salinity that is 16 already in that perched water table to move into the river? 17 DR. DEVEREL: The water does not move into the river 18 in this particular process. 19 MR. JACKSON: Where does it go? 20 DR. DEVEREL: It generally moves downslope. Water 21 moves slowly. In this direction there is water that moves 22 into the Siarian Sands (phonetic) here across and 23 underneath the river to the eastern part of the valley. 24 MR. BIRMINGHAM: May the record reflect that when 25 Dr. Deverel said "here through the Siarian Sands" he was CAPITOL REPORTERS (916) 923-5447 8042 1 referring to a point on the cross-section approximately 2 halfway between points P3 and P1 on the curve indicating 3 the boundary of the Sierra-Nevada sediments. 4 C.O. CAFFREY: Dr. Deverel, do you agree with that 5 description where you pointed? 6 DR. DEVEREL: I do. 7 C.O. CAFFREY: The record will so recognize that 8 description. 9 MR. JACKSON: Now, calling you attention to the area 10 to the left of P4 which is entitled "The 1984 Water Table," 11 do you know where the 1997 water table is? 12 DR. DEVEREL: It generally has the same shape of this 13 water table. Its risen -- the data that I've seen 14 indicates that it's risen about 10 to 15 feet. 15 MR. JACKSON: Have you calculated how long it will 16 take to fill up that decline so that there is a gradient 17 that is in the direction of the river? 18 DR. DEVEREL: I have not made that calculation. 19 MR. JACKSON: It is true that the application of 20 water to the west of the groundwater divide may at some 21 point eliminate the groundwater divide and create a 22 gradient to the east, will it not? 23 DR. DEVEREL: That's possible. 24 MR. JACKSON: But you do not know how long that would 25 take? CAPITOL REPORTERS (916) 923-5447 8043 1 DR. DEVEREL: I do not know how long that will take. 2 MR. JACKSON: Thank you. No further questions. 3 C.O. CAFFREY: Thank you very much, Mr. Jackson. All 4 right. I believe that -- did you wish to -- 5 MR. MINASIAN: Move my exhibits. 6 C.O. CAFFREY: -- redirect based on that last bit of 7 questions? 8 MR. MINASIAN: No, thank you. 9 C.O. CAFFREY: You want to move your exhibits in? 10 MR. MINASIAN: Yes, please. 11 C.O. CAFFREY: We also did have some 12 cross-examination exhibits. Perhaps, we should take that 13 up first so we get that all straight. 14 Mr. Birmingham, I believe you had exhibits for 15 both Mr. White and Mr. Deverel; is that correct, sir? 16 MR. BIRMINGHAM: Yes, I believe that I moved that in 17 my -- 18 C.O. CAFFREY: Did we accept those already? 19 MS. LEIDIGH: Yes, we did. 20 MR. BIRMINGHAM: At this time I would move for the 21 admission of Westlands Water District's 100 through 104. 22 C.O. CAFFREY: All right. Those were for 23 Dr. Deverel. Is there any objection to receiving those 24 exhibits into the record? Seeing and hearing no objection, 25 they are accepted. Thank you, Mr. Birmingham. CAPITOL REPORTERS (916) 923-5447 8044 1 And now to Mr. Minasian. 2 MR. MINASIAN: We would move 5A, which is the 3 testimony of Mr. Deverel; 5B, which is the drawing showing 4 the difference between the 1952 and 1984 water table in the 5 area of the Broadview experiment plot; 5C, the profile from 6 the Rainbow Report; 5D, the bare-soil evaporation 7 progression charts from 1972 to 1989; 5E, which is the 8 bare-soil evaporation chart projecting from 1990 to 2040; 9 5F, the flow and loads charts regarding the Grasslands 10 area; 5G, the South Delta-Central Delta Island charts 11 showing loads from various islands in various time periods; 12 5H, the Patterson, California, load chart; 5I, the typical 13 tile drainage system diagram; 5J, K and I, which are a 14 series of bullet points regarding influences in drain 15 loads; 5M, a flow diagram showing the flows on the 27-acre 16 field in Broadview in the period 1987, 1989 both irrigated 17 and un-irrigated conditions; 5M, the USGS load versus flow 18 in regard to the Broadview plot for 1987, 1989. 19 5-O, the estimated salt loads for the South Delta 20 area; 5P, the typical drainage return system for a Delta 21 island; 5Q, the Bouldin Island groundwater flow quality; 22 5R, hydraulic affects of upgradient irrigation in the 23 Broadview area; and 4G.1, which is the trans-sec located on 24 4G. 25 C.O. CAFFREY: All right. Mr. Howard, does that CAPITOL REPORTERS (916) 923-5447 8045 1 agree with your records? 2 MR. HOWARD: Yes. 3 C.O. CAFFREY: All right. Thank you, sir. 4 MR. PETTIT: Mr. Chairman? 5 C.O. CAFFREY: Yes, Mr. Pettit. 6 MR. PETTIT: At one point I think Mr. Minasian 7 mentioned J, K and I, and I think he meant J, K and L 8 because he had already mentioned I before. 9 MR. MINASIAN: Thank you, Walt, that's correct. 10 C.O. CAFFREY: Thank you, Mr. Pettit. All right. Is 11 there any objection to accepting into the record the 12 exhibits as described by Mr. Minasian? Seeing and hearing 13 no objection, those exhibits are accepted into the 14 evidentiary record. 15 Thank you very much, Mr. Minasian. Thank you, 16 Dr. Deverel. That completes the rebuttal case. 17 MR. NOMELLINI: May I ask a question? 18 C.O. CAFFREY: Yes, Mr. Nomellini. 19 MR. NOMELLINI: Are Westlands' 95, 96, 97 and 98 20 omitted? 21 C.O. CAFFREY: Were those the ones that we accepted 22 yesterday? We'll double-check. 23 MR. NOMELLINI: If they're not, I would move those 24 into the record. I used those in the cross-examination. 25 C.O. CAFFREY: All right. Thank you, sir. CAPITOL REPORTERS (916) 923-5447 8046 1 MR. BIRMINGHAM: They were admitted on December 9th. 2 C.O. CAFFREY: They were admitted on the 9th. 3 MR. NOMELLINI: Thank you. 4 C.O. CAFFREY: Thank you, Mr. Birmingham. Thank you, 5 Mr. Nomellini. 6 MR. NOMELLINI: Thank you. 7 C.O. CAFFREY: I believe now that that takes us to 8 Mr. Herrick and the completion of Mr. Herrick's rebuttal 9 case. 10 Good morning, Mr. Herrick, and I believe you have 11 a new witness for us that we have not seen before. 12 MR. HERRICK: Yes, that has not been sworn in. 13 C.O. CAFFREY: After you introduce him, I will swear 14 him in, Mr. Herrick. 15 MR. HERRICK: Thank you, Mr. Chairman, Board Members, 16 John Herrick for the South Delta Water Agency. I have a 17 witness now. I'm calling Mr. Jack Alvarez and he has not 18 been sworn, as I said. 19 C.O. CAFFREY: Thank you. Welcome, Mr. Alvarez. 20 Please, stand and raise your right hand. Do you promise to 21 tell the truth in these proceedings? 22 MR. ALVAREZ: Yes, I do. 23 C.O. CAFFREY: Thank you, sir. Please, be seated. 24 MR. HERRICK: Mr. Chairman, this will be brief. I 25 anticipate it's a small matter but I think one that needs CAPITOL REPORTERS (916) 923-5447 8047 1 to be corrected. This is rebuttal to statements made by 2 DWR's witness and a representative of Bureau of Reclamation 3 during Stockton East Water District's case in chief. 4 C.O. CAFFREY: All right, sir. Please, proceed. 5 ---oOo--- 6 REBUTTAL EXAMINATION BY SOUTH DELTA WATER AGENCY 7 OF JACK ALVAREZ 8 BY JOHN HERRICK 9 MR. HERRICK: Mr. Alvarez, would you spell your name 10 just so the Court Reporter has it correctly and, please, 11 speak into the mic so everybody can hear. 12 MR. ALVAREZ: Yes, it's Jack Alvarez, A-L-V-A-R-E-Z. 13 MR. HERRICK: Mr. Alvarez, do you work for Westside 14 Irrigation District? 15 MR. ALVAREZ: Yes. I'm president of Westside 16 Irrigation District. 17 MR. HERRICK: And could you briefly give a 18 description of where that district is located. 19 MR. ALVAREZ: Westside Irrigation District consists 20 of approximately 7,000 to 7500 acres and in Tracy, 21 California. Our pump house is approximately one mile south 22 of Old River on Wickman Road. 23 MR. HERRICK: And as president of Westside Irrigation 24 District what are your duties? 25 MR. ALVAREZ: My duties are to conduct meetings, CAPITOL REPORTERS (916) 923-5447 8048 1 oversee everyday activities. I'm in contact on a daily 2 basis with the secretary and the irrigation foreman. 3 MR. HERRICK: Mr. Alvarez, where does Westside 4 Irrigation District get its water? 5 MR. ALVAREZ: The primary source is off of Old River. 6 MR. HERRICK: And you mentioned briefly in an earlier 7 statement that the -- off of Old River you had a channel to 8 your pumps. Can you describe where that channel is 9 located? 10 MR. ALVAREZ: The channel is directly off of Old 11 River approximately one mile of intake, private intake 12 leading to our pump houses south of the Old River. 13 MR. HERRICK: And so the pumps for the District 14 aren't on Old River, they're at the end of this one-mile 15 channel at the end of Old River? 16 MR. ALVAREZ: Correct. 17 MR. HERRICK: Has Westside Irrigation District 18 experienced any pumping problems due to low water levels 19 this year? 20 MR. ALVAREZ: Yes. 21 MR. HERRICK: And can you give us an approximate time 22 frame as to when these difficulties were experienced? 23 MR. ALVAREZ: As you all know it was a late season in 24 starting this year and we experienced problems right off 25 the get-go, May 1st on. CAPITOL REPORTERS (916) 923-5447 8049 1 MR. HERRICK: And when you say "on" through the 2 entire season, or did the problem stop at some point? 3 MR. ALVAREZ: Through the entire season. 4 MR. HERRICK: Okay. In your channel leading from Old 5 River to your pumps do you experience any siltation 6 problems? 7 MR. ALVAREZ: Yes. We have siltation problems. And 8 on a yearly annual basis we dredge out our intake. 9 MR. HERRICK: And did you do that dredging this year? 10 MR. ALVAREZ: Yes. 11 MR. HERRICK: And did you dredge so that the bottom 12 of the channel was at the level that it is typically every 13 year for your irrigation purposes? 14 MR. ALVAREZ: Yes, we did. 15 MR. HERRICK: Do you know what the flow at Vernalis 16 was from May onwards during this time period? 17 MR. ALVAREZ: All I was ever told is it's always high 18 flows. 19 MR. HERRICK: When you started experiencing problems 20 did you do any sort of an investigation? 21 MR. ALVAREZ: Yes. We physically looked at the river 22 low water levels and we physically looked at the pump 23 house. 24 MR. HERRICK: And did you find any siltation problems 25 preventing water from flowing into your channel or anything CAPITOL REPORTERS (916) 923-5447 8050 1 like that? 2 MR. ALVAREZ: Nothing in our intake. 3 MR. HERRICK: Was there any siltation in Old River 4 that was preventing water from flowing directly into your 5 channel? 6 MR. ALVAREZ: I would say Old River is highly 7 siltated. 8 MR. HERRICK: But was there any sand or anything 9 blocking your intake? 10 MR. ALVAREZ: No. 11 MR. HERRICK: When you experienced these problems did 12 you inform any other parties? 13 MR. ALVAREZ: Yes. Our consult Jeannie Zolezzi was 14 notified and she would then pass it along to the South 15 Delta Water Agency. 16 MR. HERRICK: Did you notify the State or Federal 17 Projects? 18 MR. ALVAREZ: I have on occasions talked to them 19 personally, but that was in prior years. I let our 20 attorney handle it from there on out. 21 MR. HERRICK: Did anybody from the Bureau of 22 Reclamation come out to investigate this problem? 23 MR. ALVAREZ: In July two employees of the Bureau of 24 Reclamation -- State Water Resources Board, excuse me, came 25 out and they physically went in our intake with a boat. CAPITOL REPORTERS (916) 923-5447 8051 1 MR. HERRICK: Did they find that your intake needed 2 to be dredged? 3 MR. ALVAREZ: The only report I got back from them, 4 they had met with our irrigation foreman. And they just 5 came to the conclusion towards the end of the day with 6 their discussion with him that there was a need for them to 7 get out before they got stuck in the boat. 8 MR. HERRICK: Do you know whether or not the South 9 Delta temporary barriers were installed this year? 10 MR. ALVAREZ: No, they were not installed. 11 MR. HERRICK: And you've been president of the 12 district in the years that they were installed? 13 MR. ALVAREZ: Yes. 14 MR. HERRICK: And do those barriers help the water 15 level problems you experience sometimes? 16 MR. ALVAREZ: Yes. 17 MR. HERRICK: That's all I have. 18 C.O. CAFFREY: All right. Thank you very much, 19 Mr. Herrick. Thank you, Mr. Alvarez. We'll go off the 20 record for just a moment. 21 (Off the record from 10:05 a.m. to 10:06 a.m.) 22 C.O. CAFFREY: By a showing of the hands do any of 23 the parties in the audience wish to cross-examine 24 Mr. Alvarez? All right. 25 Mr. Sexton, you wish to cross-examine? CAPITOL REPORTERS (916) 923-5447 8052 1 MR. SEXTON: Mr. Chairman, I don't wish to 2 cross-examine Mr. Alvarez, but I'd like the opportunity to 3 read some testimony in the record in rebuttal to some 4 matters that were stated by a South Delta witness 5 yesterday. 6 C.O. CAFFREY: All right. Is it in any way connected 7 to Mr. Alvarez's appearance here? 8 MR. SEXTON: No, it isn't. 9 C.O. CAFFREY: So we can go ahead and dismiss him 10 first? 11 MR. SEXTON: Yes. 12 C.O. CAFFREY: Do you have any exhibits to offer with 13 relation to the -- 14 C.O. STUBCHAER: What about the staff and Board? 15 C.O. CAFFREY: I'm sorry. Staff? 16 MS. LEIDIGH: No. 17 MEMBER FORSTER: I do. 18 C.O. CAFFREY: All right. Go ahead. 19 ---oOo--- 20 CROSS-EXAMINATION OF SOUTH DELTA WATER AGENCY 21 BY THE BOARD 22 MEMBER FORSTER: Mr. Alvarez, all right, I don't want 23 to give my opinion. The barriers weren't installed this 24 year. Is it your understanding that they weren't installed 25 because of the high river flows? CAPITOL REPORTERS (916) 923-5447 8053 1 MR. ALVAREZ: Yes, that's my interpretation. 2 MEMBER FORSTER: Wouldn't you expect that your area, 3 if there were high river flows, would have gotten water, 4 too? 5 MR. ALVAREZ: You would think that, but it's not 6 necessarily the case in our situation. 7 MEMBER FORSTER: Why do you think that that didn't 8 happen? 9 MR. ALVAREZ: Oh, I would say due to Old River -- 10 siltation in Old River and due to excessive pumping. 11 MEMBER FORSTER: Thanks. 12 C.O. CAFFREY: Thank you, Ms. Forster. 13 Mr. Stubchaer? 14 C.O. STUBCHAER: Just a question of clarification, 15 Mr. Alvarez. I believe you stated that someone from the 16 State Water Resources Control Board came out with someone 17 from the Bureau and looked at your inlet or your pump 18 station. Was that this Board or was that the Department of 19 Resources? 20 MR. ALVAREZ: To my knowledge Department of 21 Resources. 22 C.O. STUBCHAER: Okay. Thank you. 23 C.O. CAFFREY: Thank you for that clarification. 24 Despite the impressions of some, there's a big difference. 25 MR. NOMELLINI: That's debatable. CAPITOL REPORTERS (916) 923-5447 8054 1 C.O. CAFFREY: Thank you, Mr. Nomellini. I was 2 waiting for your comment such as it is. 3 All right. Did you have any exhibits at all in 4 relation to -- 5 MR. HERRICK: I have no exhibits. I put South 6 Delta -- I forget what number this is, just in case we 7 wanted to refer to it, but I have no exhibits at this time. 8 C.O. CAFFREY: All right. Thank you, sir. We should 9 probably hear from Mr. Sexton before we close out this 10 rebuttal case; is that correct, Ms. Leidigh? 11 MS. LEIDIGH: Yes. 12 C.O. CAFFREY: Mr. Sexton, please, sir. 13 We can excuse Mr. Alvarez I believe, I'm sorry, 14 Mr. Herrick. 15 MR. HERRICK: Yes, I would like to excuse 16 Mr. Alvarez if we can. Are we going to discuss what 17 Mr. Sexton is attempting to do? An attorney reading 18 something into the record I don't think is quite 19 appropriate. And not knowing what it is, it doesn't allow 20 cross-examination or rebuttal or anything. So I'm not sure 21 what the purpose or standard would be for doing this. 22 C.O. CAFFREY: I'm not completely clear myself. 23 We're going to ask Mr. Sexton to explain. 24 Thank you, Mr. Alvarez. 25 MR. ALVAREZ: Thank you. CAPITOL REPORTERS (916) 923-5447 8055 1 C.O. CAFFREY: We're going to ask Mr. Sexton to 2 describe, procedurally, what he's doing, first of all. 3 Mr. Sexton. 4 MR. SEXTON: Thank you, Mr. Chairman. Procedurally, 5 what I'm doing is I would like to read some very small 6 extracts of the deposition testimony of Gerald T. Orlob, 7 who I will represent is a consultant to South Delta Water 8 Agency. 9 The deposition was taken in the matter of this 10 proceeding pursuant to subpoena issued by this Board. It 11 was taken on June 16th, 1998. And it goes directly to the 12 testimony that was delivered by Mr. Hildebrand yesterday. 13 C.O. CAFFREY: All right. Thank you, Mr. Sexton. I 14 have a technical question before I hear any objections: Is 15 there a necessity to read any portion of the deposition 16 into the record, or can we just consider accepting the 17 deposition in its entirety into the record, Ms. Leidigh? 18 MS. LEIDIGH: You could consider accepting the 19 deposition itself into the record. 20 C.O. CAFFREY: And then instead of -- 21 MS. LEIDIGH: I don't know that it's been placed into 22 the record yet. 23 C.O. CAFFREY: And instead of going into, if we were 24 to allow Mr. Sexton to read this into the record and then 25 instead of going into cross-examination, the alternative of CAPITOL REPORTERS (916) 923-5447 8056 1 just submitting it as an exhibit it could be dealt with by 2 the other parties in their closing arguments, correct? 3 MS. LEIDIGH: That's true. 4 C.O. CAFFREY: And Mr. Stubchaer -- 5 C.O. STUBCHAER: Were the other parties present at 6 the deposition? 7 MS. LEIDIGH: I don't know. 8 MR. NOMELLINI: No. 9 MR. SEXTON: The deposition was noticed pursuant to 10 this proceeding. There were only a few parties who 11 actually showed up at the deposition. There was the 12 attorney for South Delta and the attorney for the San 13 Joaquin River Group Authority at the time. 14 C.O. STUBCHAER: Was -- 15 C.O. CAFFREY: Go ahead, Mr. Stubchaer. 16 C.O. STUBCHAER: For my information, was 17 cross-examination allowed at the deposition? 18 MR. SEXTON: Yes. 19 C.O. STUBCHAER: And was there cross-examination at 20 the deposition? 21 MR. SEXTON: Well, there was examination by the 22 attorney for the San Joaquin River Group Authority and 23 there was some examination that was done by Mr. Herrick 24 during the deposition. 25 C.O. STUBCHAER: Okay. CAPITOL REPORTERS (916) 923-5447 8057 1 C.O. CAFFREY: All right. Thank you. First I'm 2 going to hear from Mr. Nomellini, I think he stood first. 3 Then I'm going to hear from Ms. Zolezzi and then I'll hear 4 from Mr. Godwin and then I'll go to Mr. Herrick. 5 Mr. Nomellini. 6 MR. NOMELLINI: I'd like to formally object 7 procedurally to this approach of getting this document into 8 the record. It could have been used in cross-examination. 9 I think it was in part used in one of the questions of 10 Mr. Hildebrand. 11 I was not at that deposition. And I don't know 12 that there is a basis for submittal of a document of this 13 type into the record absent bringing forward a witness who 14 we could examine with regard to this document. And a 15 procedure that will allow us to keep this phase of the 16 hearing open until we've had a chance to review that and 17 focus in on whatever testimony is coming in with regard to 18 that. 19 So I would object to this method. If the Board is 20 inclined to take it in, then, I would ask that the phase -- 21 over my objection, that the phase be continued in an open 22 state so that, you could set a deadline on it, the rest of 23 us could review it and see whether or not we want to 24 present any evidence with regard to it, or bring Dr. Orlob, 25 or whatever to quiz him on. CAPITOL REPORTERS (916) 923-5447 8058 1 C.O. CAFFREY: All right. So you're asking for 2 something different than an extension, say, of a closing 3 statement? 4 MR. NOMELLINI: First request is that it not be 5 taken. 6 C.O. CAFFREY: Got that. 7 MR. NOMELLINI: Second is that if it is taken over 8 the objection that this phase be kept open with a 9 reasonable period of time for all of us who did not 10 participate in the deposition as well as those that did to 11 review it and decide whether or not we want to bring forth 12 a witness with regard to it, or to subpoena Dr. Orlob with 13 regard to the deposition. 14 C.O. CAFFREY: All right. Thank you, Mr. Nomellini. 15 Mr. Stubchaer. 16 C.O. STUBCHAER: Question: Is this rebuttal to 17 rebuttal? You mentioned the testimony yesterday. That was 18 all rebuttal; is that right? 19 MR. SEXTON: Yes, Mr. Stubchaer. 20 C.O. STUBCHAER: Rebuttal to rebuttal. 21 MR. SEXTON: What I'm asking here is we have 22 deposition testimony sworn pursuant to these proceedings. 23 And I would like to read a portion of the testimony and ask 24 this Board to take judicial notice of that testimony taken 25 pursuant to these proceedings. CAPITOL REPORTERS (916) 923-5447 8059 1 C.O. CAFFREY: All right. Thank you. Let's hear 2 from Ms. Zolezzi and then Mr. Godwin. 3 Ms. Zolezzi. 4 MS. ZOLEZZI: I would just join in Mr. Nomellini's 5 objection and also his recommended solution. I think the 6 important thing to point out here is the Board has a rule 7 that every other party has followed. We all had written 8 testimony submitted into evidence that has been sworn to. 9 However, we are also required to produce that witness to 10 testify to that evidence and allow other parties to 11 cross-examine. 12 There is no reason why one party should be allowed 13 simply to read testimony in and no one is allowed to 14 cross-examine. The fact that there was an opportunity to 15 cross-examine at the deposition is irrelevant. 16 I had no idea that my only chance to cross-examine 17 that witness was going to be at the deposition and that I 18 wouldn't have an opportunity at the actual Board hearing. 19 It simply should not be allowed. 20 C.O. CAFFREY: Thank you, Ms. Zolezzi. 21 Mr. Godwin and then Mr. Birmingham. 22 MR. GODWIN: No. 23 C.O. CAFFREY: Thank you, sir. Mr. Birmingham. 24 MR. BIRMINGHAM: I don't know what Mr. Sexton is 25 attempting to do, but I suspect I can guess. Yesterday he CAPITOL REPORTERS (916) 923-5447 8060 1 asked Dr. Hildebrand a question, a hypothetical question, 2 and asked Dr. Hildebrand to assume that Dr. Orlob had given 3 some testimony. And Dr. Hildebrand said he would not 4 accept the hypothetical. 5 So I don't think that Mr. Sexton is offering this 6 testimony for the truth of what's stated in the testimony, 7 but rather it's an effort to lay a foundation for the 8 hypothetical. Whether it's -- whether what Dr. Orlob said 9 is true or is not true is not relevant to the question that 10 Mr. Sexton asked of Dr. Hildebrand yesterday. 11 C.O. CAFFREY: Is that a fair characterization of 12 what you're trying to do, Mr. Sexton, although I know 13 you're very capable of speaking for yourself? 14 MR. SEXTON: It's partly true, but I also would ask 15 the Board to take judicial notice of the testimony for the 16 truth of the matter stated therein since it was testimony 17 taken under oath, pursuant to deposition, properly noticed 18 in connection with these proceedings. 19 C.O. CAFFREY: All right. Thank you, sir. 20 Mr. Herrick, Mr. Nomellini is standing. Do you 21 want to go to him first, or do you want to get the last 22 word? 23 MR. HERRICK: I'll go for the last word. 24 C.O. CAFFREY: Mr. Nomellini -- I'm sorry. I'm 25 sorry. Before we get to Mr. Nomellini, Mr. Brown. CAPITOL REPORTERS (916) 923-5447 8061 1 MEMBER BROWN: I'm sure the reason was given earlier, 2 but I don't recall it: Why was that testimony not given 3 here? 4 MR. SEXTON: Not given during this proceeding? 5 MEMBER BROWN: Yes. 6 MR. SEXTON: Apparently because South Delta chose not 7 to call that witness. I thought they were going to do so, 8 but they chose not to, so. Apparently they plan on 9 bringing him on in another phase. There has been testimony 10 delivered by Mr. Orlob in connection with these 11 proceedings, but it hasn't been used in this phase. The 12 deposition testimony has not been submitted, though. 13 C.O. CAFFREY: I guess, if I could follow on 14 Mr. Brown's question: Was this gentleman, Dr. Orlob, not 15 available for you to bring on as a witness for a rebuttal 16 case, is that why you're presenting this deposition? 17 MR. SEXTON: To be honest, Mr. Chairman, I haven't 18 checked to see if Dr. Orlob is available. My purpose was 19 just to read the deposition testimony into the record and 20 ask the Board to take judicial notice of it. 21 C.O. CAFFREY: In what connection was the deposition 22 taken in the first place? 23 MR. SEXTON: It was in connection with these 24 proceedings. It was to lay -- it was to obtain discovery 25 prior to the commencement of various phases to the CAPITOL REPORTERS (916) 923-5447 8062 1 proceedings. 2 C.O. CAFFREY: Does that mean that there was a 3 presumption that he could not appear then, or was not 4 available throughout the course of the proceeding? 5 MR. SEXTON: No, that's not my understanding. 6 C.O. CAFFREY: All right. Somebody else before we go 7 to Mr. Nomellini? Mr. Stubchaer. 8 C.O. STUBCHAER: Was the deposition scheduled by your 9 agency, or by the South Delta Water Agency? I'm not clear 10 on this. 11 MR. HERRICK: It was scheduled by the San Joaquin 12 River Group Authority. 13 C.O. STUBCHAER: Okay. Thank you. 14 MR. HERRICK: Mr. O'Laughlin noticed it, I believe. 15 MR. GODWIN: Yes. And also present was a 16 representative of the San Joaquin River Exchange 17 Contractors. 18 C.O. CAFFREY: Let me ask another question: Who was 19 noticed for the deposition? Were all the parties in the 20 Delta noticed for the deposition? They were not. 21 MR. HERRICK: I'm sorry, I was shaking my head. I 22 don't believe they were, but I don't want to represent that 23 as absolute truth. 24 C.O. CAFFREY: Mr. Godwin, do you know the answer to 25 that question? CAPITOL REPORTERS (916) 923-5447 8063 1 MR. GODWIN: Yes. And that's why I was going to 2 speak earlier. Arthur Godwin for the San Joaquin River 3 Group. The deposition was not noticed to all the parties. 4 This proceeding had not started yet. The proceeding had 5 been noticed, but the actual hearings hadn't started until 6 July 1st of this year. 7 C.O. CAFFREY: Do you know if Mr. Nomellini and 8 Ms. Zolezzi were noticed for the deposition? 9 MR. GODWIN: I don't believe so, no. 10 C.O. CAFFREY: All right. Thank you, sir. 11 Mr. Nomellini. 12 MR. NOMELLINI: I think I was noticed for the 13 deposition, or knew about it. But I would like to address 14 Mr. Birmingham's point. If this is related to the 15 cross-examination, it should have been brought up as a part 16 of the cross-examination of Mr. Hildebrand yesterday. 17 If it's the introduction of new evidence as part 18 of a rebuttal case, Mr. Sexton could have subpoenaed 19 Dr. Orlob, or asked him -- or put him on for the rebuttal 20 testimony on behalf of his client which he's not done. 21 If you want to give him the opportunity to do 22 that, that would satisfy me. We just extend this time, let 23 Sexton bring Orlob in here, put him on the stand, quiz him, 24 we can cross-examine him. And that solves my problem. 25 C.O. CAFFREY: All right. Thank you, Mr. Nomellini. CAPITOL REPORTERS (916) 923-5447 8064 1 Mr. Herrick, did you have something, sir? 2 MR. HERRICK: Yes. I'll try to be brief. Mr. Orlob 3 was originally scheduled to be in Phase II by our agency, 4 but Phase II was turned into Phase II and II-A so his 5 testimony was delayed until II-A. There's no hide the ball 6 here. But I think it's important to note that even though 7 sometimes our rules are fuzzy here, this isn't the way to 8 do it. 9 If you want to put on a rebuttal case, you put on 10 a rebuttal case. If you want to cross-examine a witness 11 with some document, or other testimony, you have to 12 cross-examine the witness with that. And then I have an 13 opportunity to redirect on that cross. 14 Dr. Orlob will be here for Phase II-A, whether or 15 not that affects anybody's closing arguments for this 16 phase, you know, unfortunately, that's too bad. But I 17 don't think any attorney has the opportunity to at the end 18 of a phase read something into the record to support their 19 case. That's not the way it works. That's not fair to 20 most of the parties, including South Delta. 21 MR. SEXTON: Well, the -- 22 C.O. CAFFREY: All right. Thank you, Mr. Herrick. 23 Mr. Sexton, do you want to make a final remark 24 before we do a little consulting up here? 25 MR. SEXTON: Thank you, Mr. Chairman. The issue is a CAPITOL REPORTERS (916) 923-5447 8065 1 very limited one. And it has more to do with Phase V than 2 it has to do with Phase II. It is an issue directly 3 related to salinity and the release of salts as a result of 4 South Delta's Irrigation practice, it goes to the question 5 that was posed to Mr. Hildebrand yesterday. So it has 6 nothing to do with Phase II directly. It has a lot to do 7 with Phase V. 8 C.O. CAFFREY: All right. Thank you, sir. We're 9 going to go off the record for a moment and I'm going to 10 ask Ms. Leidigh to join the Board Members. 11 (Off the record from 10:21 a.m. to 10:24 a.m.) 12 C.O. CAFFREY: We're back on the record and here's 13 the ruling: With great respect to Mr. Sexton I'm going to 14 turn down his request. We don't want to take these 15 proceedings to rebuttal of rebuttal of rebuttal. And we 16 also listen with great sensitivity to the concerns 17 expressed with regard to due process and the ability to 18 cross-examine. 19 And so, respectfully, I'm turning down your offer, 20 Mr. Sexton. If it bears some relativity that you can 21 demonstrate to the Board with regard to Phase II-A, or any 22 other phase in the future, I know that Mr. Stubchaer will 23 be happy to allow you to bring the information forward into 24 the record. 25 Thank you, sir. CAPITOL REPORTERS (916) 923-5447 8066 1 MR. SEXTON: Mr. Caffrey, may I ask: Is that going 2 to be a condition now to my questioning Dr. Orlob on this 3 issue if I subpoena him for a later phase? In other words, 4 if it has relativity to that phase rather than relativity 5 to Phase V? 6 I don't want to keep Phase V open, but if I'm not 7 going to be able to bring this testimony in, then I have no 8 choice but to keep Phase V open, or at least a request to 9 the Chair to keep it open. 10 C.O. CAFFREY: I think in defining this entire phase 11 concept, the lines between or among the phases is not all 12 that clear. And I see from my peripheral vision I see the 13 nods from our new Hearing Officer that he will be very much 14 inclined to allow you the flexibility you need to present 15 this witness later. 16 MR. SEXTON: Thank you, Mr. Chairman. 17 C.O. CAFFREY: Thank you. 18 MR. SEXTON: I have no reason to request that Phase V 19 be kept open. I'll bring it in at a later time. 20 C.O. CAFFREY: All right. Thank you, sir. 21 Mr. Birmingham. 22 MR. BIRMINGHAM: Mr. Chairman, it appears that we're 23 about to conclude Phase V. There's one issue that remains 24 open and that's Trinity County. Shortly after Trinity 25 County's witnesses appeared I provided to them some marked CAPITOL REPORTERS (916) 923-5447 8067 1 up transcripts. They are going to give them back to me, 2 I'm told by Mr. Jackson, this Friday. 3 So what I would request is that we not keep the 4 record open for Phase V, but that the parties understand 5 that they will be receiving revised testimony from Trinity 6 County pursuant to the stipulation that we earlier entered 7 on the record. 8 C.O. CAFFREY: Is that agreeable to all the parties? 9 Everybody understand that? Well, we actually won't close 10 the record on Phase V today, because we're going to have 11 some discussion here about when we're going to get closing 12 arguments, but -- 13 MS. LEIDIGH: But I think the evidentiary record 14 would be closed for receiving evidence is concerned 15 except -- 16 C.O. CAFFREY: Expect for the closing statements. 17 MS. LEIDIGH: Well, closing statements are not 18 evidence. 19 C.O. CAFFREY: All right. 20 MS. LEIDIGH: Except for the transcript which, of 21 course, becomes part of the record. But since there will 22 be some changes in it, I would suggest that the record be 23 held open to receive -- 24 C.O. CAFFREY: For just the receipt of those 25 documents. CAPITOL REPORTERS (916) 923-5447 8068 1 MS. LEIDIGH: -- those documents. 2 MR. JACKSON: Fine. 3 C.O. CAFFREY: Thank you, Mr. Jackson. Thank you, 4 Mr. Birmingham. 5 MR. BIRMINGHAM: There's also been some discussion 6 about having the closing briefs for Phase V due 7 approximately 60 days after the date of receipt of the 8 final transcript for this phase. 9 C.O. CAFFREY: That's, certainly, agreeable to me. 10 Is that agreeable to all the parties? 11 MR. NOMELLINI: I stepped out to get Mr. Jackson, but 12 are you going to keep the Phase V record open for Trinity? 13 MR. JACKSON: Until we -- 14 C.O. CAFFREY: Just for that. 15 MR. NOMELLINI: Okay. And then we're going to want 16 to know whatever your deal was before we start briefing to 17 know what evidence we're dealing with, right? 18 MR. BIRMINGHAM: Yes. 19 MR. NOMELLINI: So we should have that in hand plus 20 the transcript when we set our time for our briefing. 21 MR. BIRMINGHAM: Maybe we could just establish that 22 we will resolve this issue prior to the end of the year. 23 And then maybe what we could do is establish the last 24 working day in February is the date on which the closing 25 briefs would be due? CAPITOL REPORTERS (916) 923-5447 8069 1 C.O. CAFFREY: Is that agreeable to everyone, 2 whatever the last working day in February is? And 3 Ms. Leidigh could possibly put that out in a brief memo to 4 all -- 5 MS. LEIDIGH: Right. 6 C.O. CAFFREY: -- just verifying that. 7 MS. CAHILL: I think we -- 8 C.O. CAFFREY: Ms. Cahill. 9 MS. CAHILL: We do want to have some concept that we 10 have the transcript in hand -- 11 C.O. CAFFREY: Yes. 12 MS. CAHILL: -- at this time prior to whatever date 13 is set. Originally, Mr. Birmingham was setting a certain 14 number of days after the transcripts went out; perhaps, 15 that is a better approach. 16 MEMBER BROWN: That's what he said. 17 MR. JACKSON: There were two things, then. 18 C.O. CAFFREY: Yeah. Why don't we do this: Why 19 don't we agree in principle that approximately 60 days 20 after the transcripts are received, whenever that is, that 21 will be the date for final submission of closing arguments. 22 But the other factor which is still a little bit 23 of an unknown is the modified exhibits that have to be 24 received with regard to Trinity. And we will have 25 Ms. Leidigh take a look at that. Make sure depending on CAPITOL REPORTERS (916) 923-5447 8070 1 the receipt of that information when that 60-day clock 2 really ought to start. 3 We'll make sure that we factor in the receipt of 4 those documents so there's ample time for everybody if 5 you'll bear with us. And if we happen to put out a date 6 that doesn't work for any of you, let us know right away. 7 Is that agreeable to everyone? 8 MR. JACKSON: Agreeable. 9 C.O. CAFFREY: Okay. 10 MR. BIRMINGHAM: Finally, Mr. Chairman -- 11 C.O. CAFFREY: Yes, sir. 12 MR. BIRMINGHAM: -- before we depart this morning 13 there is one additional thing that I would like to bring 14 before the Board. 15 C.O. CAFFREY: Yes, sir. 16 MR. BIRMINGHAM: It's a matter that's unrelated to 17 the Bay-Delta Water Rights Hearing. And, therefore, I'm 18 going to direct this request to the new Hearing Officer: 19 Therefore, I request that the record on Phase V 20 with the exceptions that we talked about be closed and 21 allow the Reporter to start a new transcript captioned, "In 22 re: The Retirement of John Caffrey." 23 C.O. STUBCHAER: Request granted. 24 (Further proceedings were reported but not 25 transcribed, in re: The Retirement of John Caffrey.) CAPITOL REPORTERS (916) 923-5447 8071 1 C.O. STUBCHAER: Mr. Godwin. 2 MR. GODWIN: Before we digress too much, I still have 3 some Phase V matters to take care of. Sorry to spoil the 4 party. Arthur Godwin for the San Joaquin River Group. 5 C.O. STUBCHAER: Back to you. 6 MR. GODWIN: At this time I'd like to request that 7 the State Board take official notice of three documents 8 that were submitted to the State Board staff and served on 9 all parties by a letter to Ms. Barbara Leidigh dated 10 November 2nd, 1998. 11 C.O. CAFFREY: Ms. Leidigh is -- 12 MR. GODWIN: San Joaquin River Group. 13 MS. LEIDIGH: I do have a copy of it. I believe that 14 the Board Members have been all given copies of this, but 15 it's been quite some time. It's a letter from Tim 16 O'Laughlin, and you can go ahead and explain the details. 17 MR. GODWIN: Okay. Yeah, it was a letter from Tim 18 O'Laughlin to Barbara Leidigh and a copy was served on all 19 parties. There were three documents that we were 20 requesting the State Board take official notice of. And 21 the first document was a judgment denying the complaint for 22 declaratory relief in the action of South Delta Water 23 Agency and Alex Hildebrand versus State Water Resources 24 Control Board. 25 Second document was an order in the case of South CAPITOL REPORTERS (916) 923-5447 8072 1 Delta Water Agency versus the United States Department of 2 Interior, U.S. Bureau of Reclamation. 3 The third document was an order after hearing on 4 petition for writ of mandate in the action of Central South 5 Delta Water Agency versus Oakdale Irrigation District and 6 South San Joaquin Irrigation District. 7 C.O. CAFFREY: Is there any objection to giving 8 official notice to any of the documents as iterated by 9 Mr. Godwin? No objection. We will give due notice, 10 Mr. Godwin. 11 MR. GODWIN: Thank you, sir. 12 MR. HOWARD: Now, do those -- I'm sorry. 13 C.O. CAFFREY: I'm sorry, Mr. Howard. 14 MR. HOWARD: Do these receive official designations? 15 MS. LEIDIGH: Yes, they should have exhibit numbers. 16 MR. HOWARD: These are then exhibits, San Joaquin 17 River Group Authority 25, 26 and 27. 18 C.O. CAFFREY: Did everybody hear those numbers? 25 19 26 and 27. 20 All right. Thank you, Mr. Howard. 21 MR. GODWIN: May I ask also that those be accepted 22 into the record? 23 C.O. CAFFREY: Any objection to accepting them into 24 the record? Seeing and hearing no objection, they're 25 accepted into the record. CAPITOL REPORTERS (916) 923-5447 8073 1 MR. GODWIN: Thank you, Mr. Chairman. 2 C.O. CAFFREY: Thank you very much. Oh, my God, 3 what's going on here? 4 Mr. Sexton then Mr. Nomellini. 5 MR. NOMELLINI: I want to get off the Phase V record 6 and get back on your record. 7 C.O. CAFFREY: Let me do that officially. Is there 8 anything else in Phase V? All right, Phase V we have our 9 closing statement date to be delivered soon by Ms. Leidigh. 10 And we are, except for that, closed in Phase V, but the 11 record I think is still open for other matters, if 12 Mr. Stubchaer wants the gavel back. 13 C.O. STUBCHAER: I don't need the gavel, I just need 14 a fork. 15 (End of Phase V proceedings.) 16 (The proceedings concluded at 10:52 a.m.) 17 ---oOo--- 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 8074 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 7813 through 7874 herein constitute a 11 complete, true and correct record of the proceedings. 12 IN WITNESS WHEREOF, I have subscribed this 13 certificate at Sacramento, California, on this 19th day of 14 December, 1998. 15 16 ________________________________ MARY R. GALLAGHER, CSR #10749 17 18 19 20 21 22 23 24 25