                      CALIFORNIA REGIONAL WATER CONTROL BOARD         

                                 NORTH COAST REGION                   

                                     ---oOo---                        

              In the Matter of:                                       
                                                                      
              ADMINISTRATIVE CIVIL LIABILITY                          
              Complaint No. R1-2009-0095.                             
                                                                      
              ______________________________/                         
                                                                      
                                                                      
                                                                      
                                                                      
                                                                      
                                                                      
                                                                      
                                                                      
                                   Deposition of:                     
                                                                      
              
                                     DEAN PRAT                        
              
                                                                      
                             Monday, December 20, 2010                
                                                                      
                                                                      
                                                                      
                                                                      
                                                                      
                                                                      
                                                                      
                                                                      
                                                                      
              Reported by:                                            
              MAREE N. ARMSTRONG                                      
              CSR #11284                                              
                                                                      
                                                                      
                                                                      
                                                                      
                                                                      
                             COASTAL REPORTING SERVICES               
                           Certified Shorthand Reporters              
                           131-A Stony Circle, Suite 500              
                               Santa Rosa, CA  95401                  
                                   (707) 573-9766                     
                                                                      
                                                                      
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          1             Deposition of DEAN PRAT, taken pursuant to    

          2   agreement at the North Coast Regional Water Quality     

          3   Control Board, 5550 Skylane Boulevard, Suite A, in the  

          4   City of Santa Rosa, County of Sonoma, State of          

          5   California, on Monday, the 20th day of December, 2010,  

          6   commencing at the hour of 1:14 p.m., thereof, before    

          7   MAREE N. ARMSTRONG, CSR No. 11284, a California         

          8   Certified Shorthand Reporter.                           

          9                                                           

         10                    A P P E A R A N C E S                  

         11                                                           

         12   FOR THE CALIFORNIA REGIONAL WATER QUALITY CONTROL       
              BOARD, NORTH COAST REGION:                              
         13                                                           
                         STATE WATER RESOURCES CONTROL BOARD          
         14              1001 I Street, 16th Floor                    
                         Sacramento, California  95814                
         15              (916) 341-6847                               
                                                                      
         16              BY:  Julie E. Macedo                         
                              Attorney at Law                         
         17                                                           
                                                                      
         18   FOR THE STATE OF CALIFORNIA, DEPARTMENT OF              
              TRANSPORTATION:                                         
         19                                                           
                        STATE OF CALIFORNIA                           
         20               DEPARTMENT OF TRANSPORTATION                
                        Legal Division                                
         21             595 Market Street, Suite 1700                 
                        San Francisco, California  94105              
         22             (415) 904-5700                                
                                                                      
         23             By:  Ardine Zazzeron                          
                             Deputy Attorney                          
         24                       and                                 
                             Douglas c. Jensen                        
         25                  Attorney at Law                          
                                                                      
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          1   APPEARANCES (cont'd)                                    
                                                                      
          2                                                           
                                                                      
          3   FOR MCM CONSTRUCTION, INC.:                             
                                                                      
          4              DIEPENBROCK HARRISON                         
                         Attorneys at Law                             
          5              A Professional Corporation                   
                         400 Capitol Mall, Suite 1800                 
          6              Sacramento, California  95814                
                         (916) 492-5050                               
          7                                                           
                         BY:  Sean K. Hungerford                      
          8                   Attorney at Law                         
                                                                      
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          1                          I N D E X                        

          2                                                           

          3   WITNESS:  DEAN PRAT                            Page No. 

          4            Examination by Ms. Zazzeron            5,  71  

          5            Examination by Mr. Hungerford              49  

          6                                                           

          7                           ---oOo---                       

          8                                                           

          9   Nos.                                           Page No. 

         10    A     "Subpoena Duces Tecum to                     19  
                     Dean Prat."                                      
         11                                                           
               B     Issuance of Clean Water Act Section          20  
         12          401 Certification, dated February 16,            
                     2006.                                            
         13                                                           
                                                                      
         14                                                           
                                                                      
         15                                                           
                                                                      
         16                                                           
                                                                      
         17                                                           
                                                                      
         18                                                           
                                                                      
         19                                                           
                                                                      
         20                                                           
                                                                      
         21                                                           
                                                                      
         22                                                           
                                                                      
         23                                                           
                                                                      
         24                                                           
                                                                      
         25                                                           

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          1                          DEAN PRAT,                       

          2   having been duly sworn or affirmed by the certified     

          3   shorthand reporter in all respects as required by law,  

          4   proceedings were had as hereinafter set forth:          

          5                         EXAMINATION                       

          6   BY MS. ZAZZERON:                                        

          7        Q.   Good afternoon.  Please state your name for   

          8   the record and spell your last name.                    

          9        A.   Dean Prat, P-r-a-t.                           

         10        Q.   Have you ever had your deposition taken       

         11   before?                                                 

         12        A.   Yes.                                          

         13        Q.   On how many occasions?                        

         14        A.   At least twice.                               

         15        Q.   Were those depositions taken in your          

         16   professional capacity?                                  

         17        A.   Yes.                                          

         18        Q.   As an employee of the Board?                  

         19        A.   Yes.                                          

         20        Q.   What were the circumstances surrounding the   

         21   cases, or whatever they were, regarding your            

         22   deposition?                                             

         23        A.   I don't recall exactly.  Cleanups.  I worked  

         24   in our site mitigation unit, so it had to do with a     

         25   cleanup case.  But I worked on many, I couldn't tell    

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          1   you which ones.  It has been more than ten years.       

          2        Q.   What is your current title or classification  

          3   with the Board?                                         

          4        A.   Engineering Geologist.                        

          5        Q.   How long have you been employed by the Water  

          6   Board?                                                  

          7        A.   About 18 years.                               

          8        Q.   Have you always been in the North Coast       

          9   Region?                                                 

         10        A.   No.  I worked for about three years at        

         11   Region 7, which is the Colorado River Basin Region.     

         12        Q.   What years were those?                        

         13        A.   Approximately, '93 to '96.                    

         14        Q.   And were you an engineering geologist with    

         15   Region 7, as well?                                      

         16        A.   Yes.                                          

         17        Q.   I'm going to go over a couple of the          

         18   guidelines for depositions, even though you have been   

         19   deposed.  Just a refresher.                             

         20             I would ask that you wait until I'm           

         21   completely done with asking your question before you    

         22   begin your answer.  Likewise, I will wait for your      

         23   answer before asking my next question.  That is not     

         24   only to make a clear record, but to stop Maree from     

         25   beating us up.                                          

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          1             And, as you know, you have just been sworn to 

          2   tell the truth; so you understand that?                 

          3        A.   Yes.                                          

          4        Q.   I ask that you not guess or speculate as to   

          5   the questions I'm asking when you give your answers.    

          6   We are entitled, though, to your best estimate.         

          7             An example I gave earlier to the previous     

          8   witness, the difference between a guess and a best      

          9   estimate would be, if I were to ask you how much money  

         10   is in my wallet, that would be a guess for you.  If I   

         11   asked you how much money was in yours, you probably,    

         12   would be able to give me your best estimate.            

         13             So it doesn't have to be precise, but we      

         14   don't want you to speculate.                            

         15             After the deposition is done in a few weeks   

         16   time you will get a copy of it in a booklet form, and   

         17   you will have a chance to read through it.  And you are 

         18   entitled to make any corrections.  If you make a        

         19   substantive change like changing a "yes" to a "no," we  

         20   may be able to comment on that at the hearing.  Do you  

         21   understand that?                                        

         22        A.   Yes.                                          

         23        Q.   I ask that you respond audibly with a "yes"   

         24   or "no."  Shakes of the head do not come across on the  

         25   written record.                                         

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          1        A.   Okay.                                         

          2        Q.   And last, is there any medical or physical    

          3   reason that you cannot give true and accurate testimony 

          4   today?                                                  

          5        A.   No.                                           

          6        Q.   All right.  Did you receive any educational   

          7   degrees?                                                

          8        A.   Yes.                                          

          9        Q.   What are they?                                

         10        A.   Bachelor's Degree in Geology.                 

         11        Q.   From which institution?                       

         12        A.   California State University, Sacramento.      

         13        Q.   What year did you graduate?                   

         14        A.   '92.                                          

         15        Q.   Did you work in any other geology-related     

         16   jobs before going to Region 7?                          

         17        A.   Internship for the Department of Toxic        

         18   Substance Control.                                      

         19        Q.   In Sacramento?                                

         20        A.   Correct.                                      

         21        Q.   What did you do for DTSC?                     

         22        A.   I assisted with groundwater modeling.  That   

         23   was pretty much the main role, in a nonpaid, weekly     

         24   internship, so --                                       

         25        Q.   Do you hold any professional licenses?        

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          1        A.   Registered geologist.                         

          2        Q.   Has your title or classification ever been    

          3   any different with the Board?                           

          4        A.   For a time they referred to us as an          

          5   associate engineering geologist after we passed a       

          6   promotional exam, and then later they did away with the 

          7   "associate" and developed a range level within the      

          8   engineering geologist classification.                   

          9        Q.   Okay.                                         

         10        A.   So I was associate engineering geologist for  

         11   some time.                                              

         12        Q.   What range level are you at present?          

         13        A.   "D."                                          

         14        Q.   Is it the highest range?                      

         15        A.   Yes.                                          

         16        Q.   How would you describe your day-to-day job    

         17   duties and functions?                                   

         18        A.   Currently?                                    

         19        Q.   Currently, yes.                               

         20        A.   Primarily, review correspondence and          

         21   applications related to Water Quality Certification and 

         22   work with applicants towards achieving a complete       

         23   application, writing public notices for projects, and   

         24   ultimately, I write Water Quality Certifications when   

         25   they have been through all the application phases.      

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          1        Q.   Are there other individuals in your office    

          2   here that have similar functions?                       

          3        A.   Yes.                                          

          4        Q.   Is there a geographical manner of dividing up 

          5   who gets which application?                             

          6        A.   Yes.  In general, for non-Caltrans projects,  

          7   I do the northern portion of our region, which is, for  

          8   the most part, the Eel River Watershed Boundary to the  

          9   Oregon border.  And then I deal with some of the        

         10   projects outside of the Eel River along the coast south 

         11   to, approximately, Fort Bragg.                          

         12        Q.   Okay.  And what about Caltrans projects?      

         13        A.   I no longer do any Caltrans projects with the 

         14   exception of an emergency project that occurred         

         15   recently.  When our Caltrans 401 staff was out of the   

         16   office, I handled that.                                 

         17        Q.   Who is currently handling 401s?               

         18        A.   Jeremiah Puget.                               

         19        Q.   Were your job duties any different in the     

         20   fall of 2006?                                           

         21        A.   Yes.                                          

         22        Q.   How so?                                       

         23        A.   My job duties included 401 Certification      

         24   projects within Caltrans.                               

         25        Q.   And that would have been true for the year    

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          1   before that?                                            

          2        A.   Yes.                                          

          3        Q.   Was there a reason why Mr. Puget is now doing 

          4   the Caltrans 401s, and you're not?                      

          5        A.   Yes.  There are probably several reasons.     

          6        Q.   Okay.  Do any of them have to do with the     

          7   Confusion Hill Bypass Project?                          

          8        A.   To some degree I think so.                    

          9             I guess one of the underlying things was      

         10   workload for myself and my counterpart, that the        

         11   workload of 401s, including the Caltrans, was too much  

         12   for two people.  It is probably too much for three      

         13   people, if I could add that.                            

         14        Q.   Do you attend training as part of your        

         15   professional development at the Board?                  

         16        A.   I do.                                         

         17        Q.   How many training types of events do you      

         18   attend, let's say, on an annual basis?                  

         19        A.   I get training in a lot of different forms,   

         20   so I couldn't be specific unless I was specific about   

         21   the types of trainings because we probably attend       

         22   trainings, probably, monthly for different types of     

         23   things.                                                 

         24             We do trainings at regular meetings with our  

         25   State Board Program Manager.  So in that context,       

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          1   probably, four a year.                                  

          2        Q.   Okay.  Have you ever taught a class of any    

          3   kind?                                                   

          4        A.   No.                                           

          5        Q.   At what point in time did you become aware of 

          6   the state's Confusion Hill Bypass Project?              

          7        A.   I would be guessing what year that I became   

          8   aware of it.                                            

          9        Q.   Well, let me ask you this.  In your role as a 

         10   Caltrans 401 application reviewer, do you recall when   

         11   you received or you became aware that the state was     

         12   going ahead with the Bypass Project?                    

         13        A.   Well, sometime before we worked on the        

         14   application I had meetings with Caltrans about the      

         15   project coming, the environmental process, the          

         16   decommissioning of the old -- or the currently old      

         17   section prior to ever receiving an application.  I      

         18   couldn't tell you if that was in '03, '04, or '05.  I'm 

         19   not recalling when exactly we started talking about     

         20   planning in our pre-project planning.                   

         21        Q.   What was the purpose of those pre-project     

         22   meetings?  Did it vary or --                            

         23        A.   Yeah, they varied.  Whatever Caltrans purpose 

         24   was at the time for getting to the next stage, whether  

         25   that was choosing an alignment, or specifics of the     

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          1   bridge designs, or how the road was going to be         

          2   decommissioned.  There were different projects over     

          3   different periods.  I don't know exactly when they all  

          4   happened.                                               

          5        Q.   What was your role at these meetings?         

          6        A.   To represent the Regional Water Board and to  

          7   provide information or answer questions about the       

          8   process if they were to come up.                        

          9        Q.   When the Department of Transportation         

         10   submitted its application you were assigned to it       

         11   immediately?                                            

         12        A.   Yes.  That's to the best that I know.         

         13        Q.   At the time you received this application,    

         14   did you already know which alignment had been chosen?   

         15        A.   I believe so.                                 

         16        Q.   Were you already familiar with the proposed   

         17   design of the bridge -- bridges?                        

         18        A.   Somewhat, in general.  Probably, I wasn't     

         19   specifically aware until I actually looked through the  

         20   application to see the design, you know.  But I know I  

         21   had been involved in some discussions and               

         22   presentations.                                          

         23        Q.   Had you ever worked on a construction project 

         24   where MCM had been involved?                            

         25        A.   Yes.                                          

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          1        Q.   Which project was that?                       

          2        A.   Van Duzen River Bridge, Southbound 101.       

          3        Q.   So the application came in.  Please walk me   

          4   through the steps that you, as a reviewer, went through 

          5   to review the application?                              

          6        A.   I could only tell you what a typical          

          7   application review is.                                  

          8        Q.   That's fine.                                  

          9        A.   I have probably worked on a hundred projects  

         10   since this project.  Each one is a little different.    

         11   But in a typical sense we would make sure it is         

         12   complete from a standpoint of the Code of Regulations,  

         13   List of Contents of a Complete Application.             

         14             We would look at the proposed areas of impact 

         15   and the fee that was -- the corresponding fee that      

         16   would be for what the area of impact was being proposed 

         17   on the project.  It was also part of a complete         

         18   application.                                            

         19             I would have informed Caltrans of any         

         20   proposed activities that couldn't be -- that wouldn't   

         21   be permissible and asked to either have those revised   

         22   or to inform Caltrans that they would be receiving them 

         23   from now, a condition that would prohibit something     

         24   that they were, you know, asking to do.                 

         25             Whereas, we attempt to -- to approve the      

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          1   proposal with, you know, in general, lacking -- you     

          2   know, minimizing the number of specific prohibitions    

          3   that we have to spell out versus being able to say the  

          4   activity is approved as you proposed.                   

          5             So we kind of went through some of those      

          6   things.  Once everything was complete and orderly, we   

          7   would write a public notice and, following the public   

          8   notice, issued the Cert.                                

          9        Q.   Do you ever physically look at the proposed   

         10   project site?                                           

         11        A.   Yes.                                          

         12        Q.   Did you do that in this case?                 

         13        A.   Yes.                                          

         14        Q.   How many times did you go out there in the    

         15   course of your application review?                      

         16        A.   Well, I don't know if I did in the course of  

         17   my application review because I've been to the site and 

         18   it is visible from the highway, so --                   

         19        Q.   Was anyone accompanying you?                  

         20        A.   I don't recall.                               

         21        Q.   Did you go out there more than once?          

         22        A.   Before?                                       

         23        Q.   During the application review.                

         24        A.   I don't recall.  I don't recall.              

         25        Q.   When you were reviewing applications do you   

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          1   typically have reference materials that you refer to?   

          2        A.   Yeah.                                         

          3        Q.   Such as?                                      

          4        A.   Such as the content of -- the List of         

          5   Contents of the Complete Application, Basin Plan,       

          6   Porter-Cologne.                                         

          7        Q.   Do you ever refer to any BMP manuals, or is   

          8   that a little bit too early in the process for that?    

          9        A.   I hadn't for this.  I don't believe I had for 

         10   this, yeah.                                             

         11        Q.   When you do refer to BMPs manuals, which ones 

         12   do you look at?                                         

         13        A.   Generally, they are provided as part of an    

         14   application if they're a reference.                     

         15             In our application we ask for description of  

         16   BMPs, so sometimes there's reference material that is   

         17   just included.                                          

         18             Maybe you could ask me the question again, if 

         19   that's not sufficient.                                  

         20        Q.   It's okay.  The department has its own        

         21   stormwater management plan, correct -- you're aware of  

         22   that?                                                   

         23        A.   Stormwater Pollution Prevention Plan?         

         24        Q.   Well, there's that one, too, yes.  That's the 

         25   one that you mentioned that is known as SWPPP --        

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          1   S-W-P-P-P, correct?                                     

          2        A.   Um-hmm.                                       

          3        Q.   Yes?                                          

          4        A.   Yes.                                          

          5        Q.   Did you review the SWPPP for this job?        

          6        A.   Not in its entirety.  I think we requested it 

          7   along the way or -- I think there's a condition of the  

          8   Cert. that required it to be submitted before the       

          9   project started.                                        

         10        Q.   Okay.                                         

         11        A.   Yeah.  And I looked at it at that point, I'm  

         12   sure, because it came into my possession.  But how far  

         13   I looked at it, I don't recall.                         

         14        Q.   Does the Board have any reference materials   

         15   that it looks to to help evaluate SWPPPs including      

         16   BMPs -- the BMP components?                             

         17        A.   Yes.                                          

         18        Q.   What are the titles of those?                 

         19        A.   I don't -- I couldn't give you those.         

         20        Q.   Okay.  Do you know, are they published by the 

         21   Board?                                                  

         22        A.   I'm sure there are some reference materials   

         23   for stormwater published by our Board.  Our Board does  

         24   trainings and things like that on stormwater, but it is 

         25   quite a large program.                                  

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          1        Q.   You initially reviewed the Department's       

          2   application.  What was your response?                   

          3        A.   I think our initial response to the           

          4   application was incomplete.                             

          5        Q.   In what aspect, or aspects, was it            

          6   incomplete?                                             

          7        A.   I don't recall, specifically.                 

          8        Q.   Did you advise the Department of its          

          9   incompleteness?                                         

         10        A.   I believe there is a letter to that effect,   

         11   yeah.                                                   

         12        Q.   Was the application, thereafter,              

         13   re-submitted?                                           

         14        A.   Yes.                                          

         15        Q.   And then what occurred?                       

         16        A.   Probably, a public notice followed by a       

         17   Certification.                                          

         18        Q.   Was there an amendment to the Certification   

         19   at some point?                                          

         20        A.   Yeah.  I believe there's at least one         

         21   amendment.                                              

         22        Q.   How did the amendment change the originally   

         23   issued application?                                     

         24        A.   Language regarding operation of equipment was 

         25   changed from a strict operation of equipment in         

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          1   waters, I believe -- was modified to remove the strict  

          2   prohibition of operation.                               

          3             And, I think, submittal of the Stormwater     

          4   Pollution Prevention Plan was delayed -- allowed to be  

          5   delayed so that staging could occur.                    

          6        Q.   How was the timing of the SWPPP affected by   

          7   staging?                                                

          8        A.   I believe that Caltrans made a fair argument  

          9   that -- that we should allow certain activities to      

         10   occur, such as staging of equipment and materials,      

         11   prior to them being able to produce the Stormwater      

         12   Pollution Prevention Plan for our review, which we      

         13   asked for prior to disturbing the ground.               

         14             MS. ZAZZERON:  All right.  A little           

         15   housekeeping here.  We will have Exhibit A to           

         16   Mr. Prat's deposition marked.  That's the subpoena to   

         17   Dean Prat.                                              

         18                       (Whereupon, Exhibit A was marked    

         19                       for identification.)                

         20   BY MS. ZAZZERON:                                        

         21        Q.   Mr. Prat have you seen Exhibit A?             

         22        A.   Before now?                                   

         23        Q.   Yes.                                          

         24        A.   I don't recall seeing that.                   

         25        Q.   Did you bring any documents responsive to the 

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          1   Subpoena?                                               

          2        A.   No.                                           

          3        Q.   Did you bring some documents here with you    

          4   today at all?                                           

          5        A.   No.                                           

          6             MS. ZAZZERON:  We will have this marked as    

          7   Exhibit B.  This is the Issuance of Clean Water Act     

          8   Section 401 Certification, dated February 16, 2006.     

          9                       (Whereupon, Exhibit B was marked    

         10                       for identification.)                

         11             MS. ZAZZERON:  Off the record.                

         12                 (Discussion off the record.)              

         13   BY MS. ZAZZERON:                                        

         14        Q.   Mr. Prat, could you take a look at Exhibit B  

         15   and tell me if it appears to be a complete copy of the  

         16   401 Certification?                                      

         17             And my question also -- or my request also    

         18   includes the last two pages which appear to be the      

         19   amended portions.                                       

         20        A.   Yes.  Although, it appears to be missing one  

         21   amendment that I thought happened.                      

         22        Q.   Which amendment are you referring to that you 

         23   believe happened?                                       

         24        A.   I believe there was an amendment to allow     

         25   water drafting.                                         

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          1        Q.   Okay.  Mr. Prat, did you author this          

          2   February 16, 2006 Certification?                        

          3        A.   Yes.                                          

          4        Q.   Did you also author the April 18, 2006        

          5   amendment?  And that amendment is two additional        

          6   conditions, No. 4 and 13.                               

          7        A.   Yes.                                          

          8        Q.   Did anyone assist you in writing these        

          9   portions of the permit?                                 

         10        A.   Not substantially.                            

         11             MS. ZAZZERON:  All right.  Turning to the top 

         12   of page 3 of the Permit and Certification, can you read 

         13   that first sentence there, please.  Just to yourself,   

         14   you don't have to read it out loud.                     

         15                 (Witness examines document.)              

         16             MS. ZAZZERON:  And then the second sentence,  

         17   too.  It starts with, "The area of anticipated."        

         18                 (Witness examines document.)              

         19   BY MS. ZAZZERON:                                        

         20        Q.   The "temporary impacts" referenced in that    

         21   first sentence, what were they?                         

         22        A.   My recollection is they were primarily for    

         23   temporary access to the peninsula area between the two  

         24   bridges from either end of the highway.                 

         25        Q.   What did that contemplate constructing?  Some 

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          1   sort of temporary road or --                            

          2        A.   Roads.  And in the case of the north bridge,  

          3   a temporary work platform and possibly access road on   

          4   the south end crossing -- crossing the stream.          

          5        Q.   On the ground was the contractor going to     

          6   construct roads -- temporary roads; is that your        

          7   understanding?                                          

          8        A.   Yeah.  Well, I don't know if roads is the     

          9   right -- temporary roads, I guess, yeah.  "Temporary"   

         10   is the emphasis, yeah, or bridges or trestles.          

         11        Q.   When you said platform over the water were    

         12   you referring to a trestle?                             

         13        A.   I'm not seeing that in the two sentences      

         14   here.                                                   

         15        Q.   I thought that was my recollection of your    

         16   testimony.  I may have misstated it, but I believe you  

         17   referenced a platform.  Do you recall stating something 

         18   about a platform over water?                            

         19        A.   Just now?                                     

         20        Q.   A couple of answers ago.                      

         21        A.   As part of the area of temporary impacts that 

         22   would have been included.                               

         23        Q.   Okay.  So a trestle was included?             

         24        A.   Yeah.  Trestle could be one of the -- one of  

         25   the issues, one of the aspects of the temporary impact. 

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          1        Q.   The second sentence there, "the anticipated   

          2   temporary impacts" reference, are those the same        

          3   temporary impacts mentioned in the previous sentence?   

          4        A.   Yeah, they are referencing the same.  Yeah.   

          5   Here it says access road and temporary bridge placement 

          6   and removal.                                            

          7        Q.   Was a temporary bridge ever placed during the 

          8   project?                                                

          9        A.   Yes.                                          

         10        Q.   Where was that?                               

         11        A.   The north end.                                

         12        Q.   What were the actual impacts that were        

         13   allowed of a temporary nature -- the things you already 

         14   mentioned, the temporary bridge, the access points, the 

         15   trestle.  Anything else?                                

         16        A.   Not that I can think of.                      

         17        Q.   Those are considered impacts?                 

         18        A.   Yes.                                          

         19        Q.   And why is that?                              

         20        A.   Because they disturb the stream or bed or     

         21   bank.                                                   

         22        Q.   What were the permanent impacts that were     

         23   referenced in this paragraph in the first sentence?     

         24        A.   I believe the only permanent impacts from the 

         25   project was to be a single pier from the south bridge   

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          1   located in the water or below ordinary high water.      

          2        Q.   What was your understanding as to how the,    

          3   let's say, the trestle was going to be placed?  Let me  

          4   strike that.                                            

          5             What was your understanding of what work was  

          6   entailed in placing the trestle?                        

          7        A.   I don't recall what my understanding was at   

          8   the time when they built the trestle.  Obviously, I was 

          9   aware that they would be putting some type of           

         10   foundation for it and building a framework to put a     

         11   deck on top, but the details of that I don't generally  

         12   concern myself with in my review.                       

         13        Q.   Okay.  Would your answer be the same with     

         14   respect to the access points on the temporary bridge?   

         15        A.   I was -- I was, I think, referring to the     

         16   trestle as a temporary bridge.                          

         17        Q.   Okay.  All right.  So "temporary bridge" and  

         18   "platform" and "trestle" are synonymous?                

         19        A.   Yes.                                          

         20        Q.   Okay.  Would it be fair to say that, insofar  

         21   as the Certification anticipates the temporary impacts  

         22   that we talked about, that it also allows the work to   

         23   be done to place those temporary impacts?               

         24        A.   Sorry, you lost me.                           

         25        Q.   Okay.  The Certification allows the temporary 

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          1   impacts, correct?                                       

          2        A.   Yes.                                          

          3        Q.   The ones that we talked about?                

          4        A.   Yes.                                          

          5        Q.   Does it also allow the work to be done to     

          6   place them?                                             

          7        A.   Yes.                                          

          8        Q.   Within the limits circumscribed in the rest   

          9   of the Certification; is that correct?                  

         10        A.   Yes.  And I would add the information         

         11   contained within the Application for Certification,     

         12   which contains a lot of the detail.                     

         13        Q.   At the time the Application was submitted was 

         14   it anticipated that there would be several river        

         15   crossings in conjunction with building the bridges?     

         16        A.   I do recall that there was discussions about  

         17   river crossings, and I believe that there was -- the    

         18   limits on that was mostly prescribed by either Fish and 

         19   Game or NOAA Fisheries as to the number of crossings    

         20   that they would allow, and so forth.                    

         21        Q.   The river crossings were included within      

         22   Application; is that correct?                           

         23        A.   Potentially, yeah.  I don't recall            

         24   specifically.  It is pretty typical that they would     

         25   describe those.                                         

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          1             But if you're referring to a piece of         

          2   equipment being driven across a gravel bar and through  

          3   the water as a crossing, it doesn't involve a dredge    

          4   and fill activity, so it is less of an issue for my     

          5   scrutiny and my purview.                                

          6        Q.   Did you ever visit the site when construction 

          7   was underway?                                           

          8        A.   Yes.                                          

          9        Q.   On how many occasions?                        

         10        A.   I don't have a count memory.                  

         11        Q.   Would it have been more than five?            

         12        A.   I believe I was there more than five times.   

         13        Q.   More than ten?                                

         14        A.   I'm not sure.                                 

         15        Q.   So something more than five, but you're not   

         16   sure if it was more than 10; is that accurate to say?   

         17        A.   Like I said, it is visible from the highway.  

         18   I made many trips past there.  It didn't always         

         19   register as a site inspection for purposes of, maybe,   

         20   your count.  It is too many times to -- for me to       

         21   remember --                                             

         22        Q.   Okay.                                         

         23        A.   -- on that level of an inspection.            

         24        Q.   With respect to what you would consider to be 

         25   an inspection, just so I'm clear, you're saying it was  

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          1   more than five, but you're not sure if it was less than 

          2   ten?                                                    

          3        A.   I would have to count my memos, and I assume  

          4   that is reflected in the file, the exact number, by how 

          5   many memos are in there.                                

          6        Q.   Did you author a Notice of Violation for the  

          7   project?                                                

          8        A.   Yes.                                          

          9        Q.   Was that in October of 2006?                  

         10        A.   Yes.                                          

         11        Q.   Was that NOV the result of an inspection that 

         12   you made at the site?                                   

         13        A.   Yes.                                          

         14        Q.   Would that have been your first inspection,   

         15   if you can recall?                                      

         16        A.   I think it was the first inspection after     

         17   activities had begun rolling.                           

         18        Q.   What prompted, if anything, that first        

         19   inspection?                                             

         20        A.   I don't know if anything prompted it other    

         21   than the work -- my job.                                

         22        Q.   Did you personally, or the Board, that you    

         23   know of, ever receive any complaints about this project 

         24   from an outside entity or person?                       

         25        A.   Outside of our office?                        

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          1        Q.   Correct.                                      

          2        A.   Yes.                                          

          3        Q.   And how many different complaints?            

          4        A.   Again, I can't recall a number.  I would be   

          5   guessing.                                               

          6        Q.   Were any of them from other public entities?  

          7        A.   Yes.                                          

          8        Q.   Which public entity?                          

          9        A.   I recall getting complaints from Caltrans     

         10   staff.                                                  

         11        Q.   Okay.  Any others?                            

         12        A.   Fish and Game.  I don't recall -- you're      

         13   waiting.                                                

         14        Q.   I didn't want to break your train of thought  

         15   there.                                                  

         16             How many different Caltrans staff relayed     

         17   complaints about the project to you?                    

         18        A.   I'm bad with numbers.  I'm recounting these   

         19   things as they go.  Sorry, I don't know how many.       

         20        Q.   These complaints, in what mode were they      

         21   delivered -- telephone, in person?                      

         22        A.   Probably in person, by telephone, and by      

         23   e-mail.                                                 

         24        Q.   Okay.  Was it more than one person that       

         25   complained?                                             

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          1        A.   Yes.                                          

          2        Q.   More than five?                               

          3        A.   I don't think more than five.                 

          4        Q.   Was there one or more of these individuals    

          5   that complained more than one time about the project?   

          6        A.   Yes.                                          

          7        Q.   What names of the people do you recall being  

          8   from Caltrans that complained?                          

          9        A.   Walt Dragaloski, Sebastian Cohen.  I don't    

         10   recall, specifically, any others.                       

         11        Q.   Mr. Dragaloski sent e-mails to the Board; is  

         12   that correct?                                           

         13        A.   Yes.                                          

         14        Q.   Were there any complaints from Mr. Dragaloski 

         15   that were not reflected in e-mails or memos that he     

         16   sent?  In other words, were there verbal complaints     

         17   that, as far as you know, were not put in writing?      

         18        A.   Not that I'm aware of.                        

         19        Q.   Mr. Cohen, did he send you e-mails?           

         20        A.   Yes.                                          

         21        Q.   Were there complaints that he had that you    

         22   are aware of that were not confirmed in writing?        

         23        A.   It is possible that we had on-site            

         24   discussions about many different details of the site    

         25   that could be construed as complaints that we didn't -- 

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          1   I don't know.  And it is possible that they weren't     

          2   ever put down the writing.                              

          3             So there's none that I'm aware of, but I      

          4   think that is possible that that could have happened    

          5   on-site.                                                

          6        Q.   Okay.  Were some of what you have referred to 

          7   as complaints from Mr. Dragaloski and Mr. Cohen the     

          8   equivalent of reporting the violation?                  

          9        A.   Yes.                                          

         10        Q.   Did you have direct contact from anyone from  

         11   Fish and Game?                                          

         12        A.   Yes.                                          

         13        Q.   Who from Fish and Game?                       

         14        A.   I know Karen Maurer, for sure, and possibly   

         15   someone before then, but I can't recall the names.      

         16        Q.   What were the nature of Warden Maurer's       

         17   communications to you?                                  

         18        A.   She requested copies of my photos and, to     

         19   some degree, I think, chastised me for not being        

         20   aggressive enough in respect to stormwater problems.    

         21        Q.   What was your response to her in the latter   

         22   regard?                                                 

         23        A.   We are trying, and it is not my particular    

         24   area of purview on the project, but she could speak to  

         25   others -- other managers.                               

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          1             I didn't work in the stormwater unit or       

          2   division, so I thought it was appropriate to have her   

          3   speak to somebody else.                                 

          4        Q.   Who from the Board had, I would say, primary  

          5   responsibility for inspecting the Confusion Hill        

          6   project site?                                           

          7        A.   Me.                                           

          8        Q.   And is that true for the life of the project? 

          9        A.   No.                                           

         10        Q.   So that changed at some point?                

         11        A.   In my mind.                                   

         12        Q.   Did someone else become primarily             

         13   responsible?                                            

         14        A.   I believe Jeremiah Puget was hired towards    

         15   the end and took over responsibility for all of the     

         16   Caltrans projects.  So that primary might be -- there   

         17   might not have been a primary.                          

         18        Q.   Okay.                                         

         19        A.   Maybe there was a transition period to        

         20   someone who would be the primary.  I really don't       

         21   recall those specifics.                                 

         22        Q.   Would you say you were the main person        

         23   responsible for inspecting the Confusion Hill site from 

         24   its beginning in mid 2006 until, let's say, mid 2007?   

         25   Would that be accurate to say?                          

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          1        A.   Yes.                                          

          2        Q.   Did Fish and Game ever institute any          

          3   enforcement proceedings with respect to the Confusion   

          4   Hill project?                                           

          5        A.   I'm not aware of --                           

          6        Q.   Do you know why they did not?                 

          7        A.   No.                                           

          8        Q.   Other than Warden Maurer, did you ever        

          9   communicate with anyone at Fish and Game about the      

         10   project?                                                

         11        A.   Yeah.  I recall in the -- it is likely that I 

         12   worked with Fish and Game -- you know, non-warden staff 

         13   at Fish and Game during the Application permitting      

         14   time, I just don't recall names.                        

         15        Q.   When you performed your inspection that led   

         16   to the 2006 violation, I believe you indicated you took 

         17   photos; is that correct?                                

         18        A.   Yes.                                          

         19        Q.   Did you take photos on any of your other      

         20   inspections?                                            

         21        A.   Yes.                                          

         22        Q.   Did you take photos upon every inspection?    

         23        A.   It is likely.  I don't know, for sure.        

         24        Q.   Okay.  Did you ever have any contact with any 

         25   Biological Monitors that were assigned to the project?  

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          1        A.   No.                                           

          2        Q.   Are you acquainted in any manner with either  

          3   Carl Page or Bradford Norman?                           

          4        A.   I know the name, Carl Page.  I understand he  

          5   was the Biological Monitor.  I had an occasion to meet  

          6   Carl well before the project started.  That was my      

          7   contact, that was it.                                   

          8        Q.   But you did not speak to Mr. Page either      

          9   before, during or after with respect to this project;   

         10   is that correct?                                        

         11        A.   No.                                           

         12        Q.   That is correct, though?  The statement is    

         13   correct, yes?  Sorry.  That wasn't probably the best    

         14   wording.  You did not --                                

         15        A.   I did not speak to Carl Page during the       

         16   project.                                                

         17        Q.   Or at any time during the project?            

         18        A.   Correct.                                      

         19        Q.   And the same for Bradford Norman?             

         20        A.   I hadn't heard of Bradford Norman until you   

         21   said his name today.                                    

         22        Q.   Did you have any role in the drafting of the  

         23   ACL in this case?                                       

         24        A.   No.                                           

         25        Q.   All right.                                    

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          1        A.   I would say, no, absolutely, but I guess --   

          2   if you want to dissect the word, I always have a role,  

          3   I guess, but -- for example, the NOV is part of it, I   

          4   understand.  I mean, I could not absolutely not have a  

          5   role, but I didn't put any words to the paper if that's 

          6   specifically what you're asking.                        

          7        Q.   Did you have any review responsibilities for  

          8   the ACL itself?                                         

          9        A.   No.                                           

         10        Q.   Have you talked to either Mr. Leland or       

         11   Mr. Grady or Ms. Dougherty about their deposition       

         12   testimony?                                              

         13        A.   No.                                           

         14        Q.   Have you --                                   

         15        A.   I take that back.  Yes.                       

         16        Q.   Which one, or all three?                      

         17        A.   Mr. Grady.                                    

         18        Q.   What did you discuss with respect to          

         19   Mr. Grady's testimony?                                  

         20        A.   Nothing specific about the testimony, just    

         21   how it is, and how long it is, and how it feels, and -- 

         22        Q.   Did you see any of the transcripts?           

         23        A.   No.                                           

         24        Q.   Okay.  That would be either Mr. Grady's or    

         25   Mr. Leland's?                                           

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          1        A.   No.                                           

          2             MS. ZAZZERON:  Okay.  Turning to the permit,  

          3   page 6.  That would be Condition 9.  If you could       

          4   review that to yourself, that would be great.           

          5                 (Witness examines document.)              

          6   BY MS. ZAZZERON:                                        

          7        Q.   What definition of waters of the state apply  

          8   to this section?                                        

          9        A.   I'm aware of one definition.  Did you ask me  

         10   which definition?                                       

         11        Q.   Yes.                                          

         12        A.   Any surface waters or groundwaters.           

         13        Q.   Okay.  And the phrase, "where it may be       

         14   washed by rainfall," does that refer to, for lack of a  

         15   better term, an absolute, or is it really dependent on  

         16   the likelihood of rain?  In other words, when you       

         17   drafted this, the term, "where it may be washed by      

         18   rainfall," does that mean whether or not rain is        

         19   predicted or even likely?                               

         20        A.   Yes.                                          

         21        Q.   In other words, if something was left other   

         22   than the area considered waters of the state -- not in  

         23   the water but, say, in the gravel bar -- would you      

         24   consider waters of the state?                           

         25        A.   Yes.                                          

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          1        Q.   If it was left there and rain was not         

          2   predicted for two weeks, so it would be a violation     

          3   under Section 9 if it were debris, soil, silt,          

          4   et cetera?                                              

          5        A.   Yes.                                          

          6        Q.   How about if it were left, again              

          7   hypothetically, in a gravel bar and then picked up      

          8   within five minutes, is that a still a violation?       

          9        A.   I could argue that it is a violation.         

         10        Q.   Is it a violation under Section 9?            

         11        A.   Yes.                                          

         12        Q.   And then the phrase, more towards the         

         13   middle -- "other than that authorized by this permit."  

         14   What is encompassed with respect to being authorized by 

         15   this permit?                                            

         16        A.   I believe that statement caveats that we are  

         17   authorizing the things we discussed earlier, such as    

         18   temporary concrete piers for trestle, and so forth.     

         19   But it is not suggesting that some of the things in the 

         20   list are authorized by the permit, if that's the        

         21   question.                                               

         22             Maybe you could ask me the question again.    

         23        Q.   All right.  Well, then, with respect to       

         24   Section 9, what is it saying as being authorized by     

         25   this permit specific to Condition 9 there?              

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          1        A.   Section 9 is not saying that anything is      

          2   authorized by this permit.                              

          3        Q.   All right.  So what is it referring to beyond 

          4   Section 9?  What is authorized by the permit that is    

          5   being referenced here?                                  

          6        A.   I think -- I don't think it is referencing    

          7   anything there that's authorized by the permit.         

          8        Q.   Are you saying it has no meaning?             

          9        A.   No, I'm not saying it has no meaning.         

         10        Q.   What is it meaning?                           

         11        A.   Number 9 means that you cannot deposit these  

         12   things where it could get into the water.               

         13        Q.   What is the word "other," what is that        

         14   referring to?                                           

         15        A.   That the things that I just mentioned, like   

         16   the concrete footings, are allowed to be placed where   

         17   we authorized them that is described in the project     

         18   description.                                            

         19        Q.   Those temporary impacts that we discussed     

         20   earlier, are they composed of any of the items listed   

         21   here in 9 -- debris, soil, silt, et cetera?             

         22        A.   Soil, earthen material, that I can come up    

         23   with, yeah.                                             

         24        Q.   All right.                                    

         25        A.   So for, like, a temporary road, typically --  

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          1   allowed to maybe, you know, push some of the gravel bar 

          2   to a surface that would allow you to cross, or          

          3   something like that, but -- is that what you're asking? 

          4        Q.   Are you familiar with the term "isolated      

          5   Pool B"?                                                

          6        A.   Yes.                                          

          7        Q.   Where on the project was it located?          

          8        A.   The northern end.                             

          9        Q.   Did you, personally, observe isolated Pool B? 

         10        A.   Yes.                                          

         11        Q.   Did your 2006 NOV contain any reference to    

         12   what is known as "iso Pool B"?                          

         13        A.   Yes.  I don't believe that name -- it was     

         14   given that name at that time.                           

         15        Q.   If I were to use that terminology, do you     

         16   understand what I mean, or would you prefer that I      

         17   refer to it in some other way?                          

         18        A.   No.  I just -- clarifying that, I don't think 

         19   my memo says isolated Pool B.                           

         20        Q.   Got you.                                      

         21        A.   Or NOV, sorry.                                

         22        Q.   How did you refer to it there?                

         23        A.   I don't recall.                               

         24        Q.   Sedimentation basin or --                     

         25        A.   That sounds right.                            

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          1        Q.   What was or were the violations associated    

          2   with that basin in your NOV?                            

          3        A.   It was used for waste water disposal.  I      

          4   think, specifically, there is a prohibition on any      

          5   concrete contact water from going into an underlying    

          6   basin.  There is a turbidity discharge.                 

          7             It is likely there was a failure to monitor   

          8   the turbidity discharge.  I don't know if that was      

          9   included in there.                                      

         10        Q.   Was there any issue with the location of the  

         11   basin, or was that with respect to another basin?       

         12        A.   The basin was closer than the minimum         

         13   distance that Caltrans proposed to use a basin for that 

         14   use in a Permit Application; so, yeah, it was closer    

         15   than 100 feet.                                          

         16        Q.   Okay.  Is there some regulation or some data  

         17   that drove that 100 foot number?                        

         18        A.   Not that I was using, unless the applicant    

         19   had data to show that that was -- they would be able to 

         20   comply using that distance.  I don't have any -- I      

         21   wasn't using any data.                                  

         22        Q.   Does the Board or did the Board have some     

         23   sort of mandate that sedimentation basins must be       

         24   located 100 feet from -- was it the active channel?     

         25        A.   No.                                           

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          1        Q.   As an engineering geologist can you think of  

          2   any reason why, everything else being in compliance,    

          3   that 100 feet is preferable to, let's say, 80 feet?     

          4        A.   Many variables.  The applicant proposed the   

          5   100 feet.  I would be guessing as to the reasons they   

          6   proposed the 100 feet.  But that could include the      

          7   ability to comply, a reduction in risks that they might 

          8   be taking, a reduction in monitoring that might be      

          9   required if there is a discharge.  The farther away the 

         10   lower the potential for that to result in a discharge   

         11   back to the river.                                      

         12             And so the 100 feet was just taken from the   

         13   Application and approved.                               

         14        Q.   Do you have actual knowledge that the         

         15   department considered all of those things that you just 

         16   mentioned when it proposed 100 feet?                    

         17        A.   No.                                           

         18        Q.   During the Application process was the 100    

         19   feet ever discussed by you and the department?          

         20        A.   Yes.  Was it included in the public notice -- 

         21   is that a discussion?                                   

         22        Q.   Was it included in the public notice?         

         23        A.   I assume it was.  It has been a long time.    

         24        Q.   Has the Board, to your knowledge, ever        

         25   approved the use of a sedimentation basin that is less  

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          1   than a 100 feet from a live stream channel?             

          2        A.   It is likely.                                 

          3        Q.   How would that 100 feet be measured?  From    

          4   what point to what point?                               

          5        A.   From the shortest distance between the edge   

          6   of the water and the edge of the basin.                 

          7        Q.   In a general sense are sedimentation basins   

          8   considered BMPs?                                        

          9        A.   Did you say "in a general sense"?             

         10        Q.   Yes.                                          

         11        A.   Yes.                                          

         12        Q.   Was the sedimentation basin that we have been 

         13   discussing at Confusion Hill a BMP?                     

         14        A.   I would say -- my understanding is that it    

         15   was a natural depression in the gravel bar, and it was  

         16   used as a BMP.                                          

         17        Q.   Okay.  Would it have been physically feasible 

         18   to place that sedimentation basin 100 feet from the     

         19   edge of the river?                                      

         20        A.   Yes.                                          

         21        Q.   Would that spot 100 feet from the edge of the 

         22   river have been on the gravel bar?                      

         23        A.   I don't believe so.                           

         24        Q.   Would it have been within the waters of the   

         25   state if you measure 100 feet from the edge of the      

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          1   river to where the sedimentation basin could have gone  

          2   100 feet away?  Is that still waters of the state?      

          3        A.   The sediment basin there's a steep wall on    

          4   the landward side of the basin, so I don't believe      

          5   there was a location that -- that -- legitimate,        

          6   feasible location on the same gravel bar that could     

          7   have put it 100 feet away.                              

          8        Q.   Maybe I misunderstood.  Was it your           

          9   testimony, or is it your testimony that a sedimentation 

         10   could have been placed 100 feet away from the edge of   

         11   the river?                                              

         12        A.   Yes.                                          

         13        Q.   And the area that you're thinking of would    

         14   have been outside the waters of the state?              

         15        A.   The sediment basin could have been located    

         16   outside waters of the state.                            

         17        Q.   That's your testimony?                        

         18        A.   Yes.  To make it 100 feet?                    

         19        Q.   Yes.  So your answer is "yes"?                

         20        A.   I'm not sure what I'm answering now.  Maybe   

         21   if I say it this way.                                   

         22             The isolated Pool B was on a gravel bar, and  

         23   there may not have been a location on that same gravel  

         24   bar that -- where the basin could have been relocated   

         25   to that would have put it 100 feet away -- or more      

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          1   away, yeah.                                             

          2        Q.   Okay.  Aside from -- go ahead.                

          3        A.   Let me finish.  Based on that, the use of     

          4   that gravel bar for a sediment basin, it wouldn't have  

          5   been feasible.  It was not a -- you couldn't comply     

          6   with the condition using that gravel bar for            

          7   dewatering.                                             

          8        Q.   Because it was less than 100 feet away, is    

          9   that what you mean, or because it was on the gravel     

         10   bar?                                                    

         11        A.   Because there was no place within the gravel  

         12   bar to locate a basin at least 100 feet away.           

         13        Q.   Could the basin have been located outside of  

         14   the gravel bar --                                       

         15        A.   Yes.                                          

         16        Q.   -- and still have served its purpose?         

         17        A.   Yes.                                          

         18        Q.   And, again, I'm sorry to belabor the point,   

         19   but just so I'm clear.  It is your testimony that it    

         20   would have been physically feasible to locate the       

         21   sedimentation basin 100 feet or more away, but it would 

         22   not have been in the gravel bar; is that correct?       

         23        A.   Not that specific gravel bar.                 

         24        Q.   We talked about the Department's Application, 

         25   and there was an indication that the sedimentation      

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          1   basin would be placed more than 100 feet from the       

          2   active channel, correct?                                

          3        A.   Yes.                                          

          4        Q.   As proposed, was the sedimentation basin to   

          5   be located within waters of the state?                  

          6        A.   I don't believe there was a specific location 

          7   mapped for the sedimentation basin.                     

          8        Q.   Based on your knowledge of the site, would it 

          9   have been feasible to locate the sedimentation basin    

         10   more than 100 feet away from the live channel?  Yes,    

         11   that's my question.                                     

         12        A.   That's the same question that I just          

         13   answered.  Yes, you could put a sedimentation basin at  

         14   least 100 feet away from an active channel.             

         15        Q.   And where you placed it, would it be within   

         16   or without the waters of the state -- the 100 feet?     

         17        A.   Either.                                       

         18             MS. ZAZZERON:  Okay.  Let's take a few        

         19   minutes -- a ten-minute break.                          

         20                          (Recess.)                        

         21   BY MS. ZAZZERON:                                        

         22        Q.   After the 2006 NOV issued what happened with  

         23   the sedimentation basin?                                

         24        A.   I have no idea.                               

         25        Q.   You don't know if it was moved?               

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          1        A.   No.                                           

          2        Q.   Did it continue to be used at the 70 foot     

          3   mark?                                                   

          4        A.   I do not recall.                              

          5        Q.   Do you have any actual knowledge that fish    

          6   died as a result of the project activities?             

          7        A.   No.                                           

          8        Q.   Do you have actual knowledge that any habitat 

          9   was permanently damaged as a result of the project      

         10   activities?                                             

         11        A.   No.                                           

         12        Q.   Do you have any actual knowledge that         

         13   beneficial uses of the river were permanently harmed as 

         14   a result of the project?                                

         15        A.   No.                                           

         16        Q.   Are you familiar with the festival, Reggae    

         17   Rising?                                                 

         18        A.   Yes.                                          

         19        Q.   Have you ever attended?                       

         20        A.   No.                                           

         21        Q.   Have you ever been involved in any permitting 

         22   for that activity or, excuse me, that event?            

         23        A.   Yes.                                          

         24        Q.   In what capacity?                             

         25        A.   401 Certification.                            

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          1        Q.   Okay.  Has the Board ever issued any other    

          2   permits or allowances for that festival other than for  

          3   a 401 Certification?                                    

          4        A.   Our office worked with them with respect to   

          5   waste water disposal.  I don't know what the outcome of 

          6   that was, if we have waste discharge requirements.  I   

          7   don't know.                                             

          8        Q.   How many 401 certifications have you been     

          9   involved with for the festival?                         

         10        A.   I think just one for Reggae Rising.           

         11        Q.   Is that because they have only applied for    

         12   one, or they may have applied for more than one, but    

         13   you have only worked on one yourself?                   

         14        A.   The event had a different name some years     

         15   ago.                                                    

         16        Q.   Is that "Reggae on the River"?                

         17        A.   Yes.                                          

         18        Q.   Did Reggae on the River acquire permits from  

         19   the Water Board?                                        

         20        A.   Yes.                                          

         21        Q.   What type?                                    

         22        A.   Water Quality Certification is the only one   

         23   that I'm aware of.                                      

         24        Q.   Was there one Certification for Reggae Rising 

         25   and one for Reggae on the River, or did they obtain     

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          1   Certifications each year?                               

          2        A.   My recollection is that Reggae on the River   

          3   obtained Certification prior to me working in that      

          4   capacity here.  I think I worked on one Certification   

          5   for Reggae on the River and the transfer, or the shift  

          6   in name, occurred and Reggae Rising had to come in and  

          7   obtain permits for their temporary crossings.           

          8        Q.   Were there temporary impacts then allowed in  

          9   these 401 Certifications for the festival?              

         10        A.   Yes.                                          

         11        Q.   Are they spelled out in the 401?              

         12        A.   Yes.                                          

         13        Q.   Do they allow swimming in the river?          

         14        A.   It doesn't address swimming.                  

         15        Q.   Would swimming in the river constitute a      

         16   violation?                                              

         17        A.   No.                                           

         18        Q.   Why not?                                      

         19        A.   It is not prohibited by the Certification --  

         20   a beneficial use of the river.                          

         21        Q.   Are there turbidity prohibitions in that 401  

         22   Certification?                                          

         23        A.   To the extent that the prohibition from the   

         24   Basin Plan is -- not a prohibition, it is a water       

         25   quality objective -- in our Basin Plan is reiterated as 

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          1   the Cert requires compliance with the Basin Plan.       

          2        Q.   How about turbidity monitoring requirements?  

          3        A.   I don't believe there's a turbidity           

          4   monitoring requirement in that Cert.                    

          5        Q.   Is the pitching of tents within the waters of 

          6   the state allowed?                                      

          7        A.   Yes.                                          

          8        Q.   Who was the applicant or permittee under      

          9   Reggae Rising?                                          

         10        A.   Other than Reggae Rising, I'm not going to    

         11   recall the name.                                        

         12        Q.   If the Board were to, say, receive a public   

         13   request for a permit regarding Reggae Rising/Reggae on  

         14   the River, that would be description enough to know     

         15   what the person was talking about?                      

         16        A.   Yeah.  I think so, yeah.                      

         17        Q.   All right.  To your knowledge, have there     

         18   ever been any enforcement proceedings resulting from    

         19   either Reggae on the River or Reggae Rising?            

         20        A.   I'm not aware of any.                         

         21        Q.   And just one more on that.  Would swimming in 

         22   the river with sunscreen on one's body be a violation?  

         23        A.   No.                                           

         24        Q.   Why is that?                                  

         25        A.   It is not likely that the Water Board is      

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          1   going to have evidence of a discharge of some sunscreen 

          2   off some person's body.                                 

          3             So I guess I could say that it could be a     

          4   violation that we are not likely to detect.             

          5        Q.   Would dozens of people being in the water     

          6   with sunscreen be a concern?                            

          7        A.   I think it is a concern to some people.       

          8        Q.   Okay.  Approximately, how many people attend  

          9   these festivals?                                        

         10        A.   I don't know approximately.                   

         11        Q.   Is it specified in the Application, if you    

         12   recall, one way or the other?                           

         13        A.   (Witness shakes head.)                        

         14        Q.   You don't recall?                             

         15        A.   I don't recall.                               

         16             MS. ZAZZERON:  All right.  Mr. HungerFord, do 

         17   you have any questions?                                 

         18             MR. HUNGERFORD:  Are you done, Ms. Zazzeron?  

         19             MS. ZAZZERON:  Well, I might be, but I will   

         20   review my notes.  If you have questions in the          

         21   meantime --                                             

         22             MR. HUNGERFORD:  Sure.  I have a couple of    

         23   questions.  I have a couple of quick follow-ups.        

         24                         EXAMINATION                       

         25             MR. HUNGERFORD:  Mr. Prat, I have a couple of 

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          1   follow-ups on Reggae on the River and Reggae Rising.    

          2   BY MR. HUNGERFORD:                                      

          3        Q.   Are those two different events, or are they   

          4   the same event but with a couple of different           

          5   incarnations?                                           

          6        A.   I don't think I can give you a complete       

          7   answer to that because it is something that changes all 

          8   the time and it is not something that I care to follow. 

          9   But, historically, it started out with Reggae on the    

         10   River, and where it was located on the river, Reggae    

         11   Rising relocated to that site.                          

         12             But I have heard rumors that Reggae on the    

         13   River has happened at other locations, or they are      

         14   pursuing other locations.  I don't know when, or where, 

         15   or how many times.                                      

         16        Q.   But you have written a 401 Certification for  

         17   one of those events at least on one occasion, right?    

         18        A.   The activity that required a 401              

         19   Certification, a 404 permit, is installation of         

         20   temporary bridges.  And those certifications are good   

         21   for typically a period of five years.                   

         22        Q.   Do you remember how many bridges?             

         23        A.   Most recently two crossings.  I think it      

         24   consisted of three bridges.                             

         25        Q.   To be clear, this is the Eel River upstream   

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          1   of the Confusion Hill area?                             

          2        A.   It would be South Fork Eel River.             

          3        Q.   So would this be upstream of where the        

          4   project site is, or is this a different stream system   

          5   entirely?                                               

          6        A.   Same.  Yeah, upstream.  I'm trying to think.  

          7   I'm trying to figure out the geography in my mind.      

          8   I'll think to myself.                                   

          9        Q.   That's okay.  You don't need to, we can       

         10   figure that out.                                        

         11             You indicated that you don't know how many    

         12   people attend this event, at least the year that you    

         13   wrote the 401 Certification; is that right?             

         14        A.   I do not know how many people attended that   

         15   year.                                                   

         16        Q.   What is your understanding of the event,      

         17   generally?  Are there lots of people in the river,      

         18   itself, listening to reggae, is that the nature of      

         19   event?                                                  

         20        A.   I think the nature of the event is to listen  

         21   to reggae music, and I believe a lot of people are      

         22   using the river during the event.                       

         23        Q.   There's a TMDL for turbidity; is that right?  

         24        A.   Sediment.                                     

         25        Q.   Sediment.  Would that apply in the area of    

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          1   the Reggae on the River event?                          

          2        A.   Yes.                                          

          3        Q.   It would be expected, to me at least, that    

          4   this event, this activity would create a fair amount of 

          5   sedimentation turbidity from people standing and        

          6   walking in the river.  Do you think that's a fair       

          7   statement based on your knowledge of the Eel River?     

          8        A.   I would expect turbidity, but I don't believe 

          9   they are introducing sediment into the river within the 

         10   scope of the TMDL.                                      

         11        Q.   So the TMDL would apply to sediment           

         12   introduced into the river from outside of the river     

         13   itself as opposed to sediment within the river          

         14   disturbed?                                              

         15        A.   Anthropogenic sources of sediment, like       

         16   logging and roads.                                      

         17        Q.   Sediments that came from the source caused by 

         18   human activity outside of the Eel River itself; is that 

         19   right?                                                  

         20        A.   To a large degree, yeah.                      

         21        Q.   So people who were walking around the river   

         22   stirring up sediments within the river bottom, that     

         23   wouldn't violate the TMDL for sediment, although, it    

         24   might for turbidity?                                    

         25        A.   That's fair.                                  

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          1        Q.   The Basin Plan has a standard for turbidity,  

          2   if I recall right, of 20 percent; is that right?        

          3        A.   Twenty percent above naturally occurring      

          4   background?                                             

          5        Q.   That's right.                                 

          6        A.   Yeah.                                         

          7        Q.   Is it permissible to permit an activity like  

          8   the Reggae on the River consistent with the Basin Plan  

          9   when 20 percent above background is virtually certain   

         10   to take place?                                          

         11        A.   I don't think that there's a relationship to  

         12   the fishing and swimming and the Basin Plan and the     

         13   event.  We don't regulate people fishing and swimming   

         14   at the Water Board, so whether or not they are doing it 

         15   as part of this event or -- I don't have any experience 

         16   of ever writing any requirements to anybody fishing or  

         17   swimming.                                               

         18        Q.   So people who are fishing or swimming, or     

         19   other recreational activities in the river, creating    

         20   turbidity as a natural consequence, that wouldn't be    

         21   covered by the Basin Plan?                              

         22        A.   I don't think that that is necessarily the    

         23   case.  We are just not regulating it.                   

         24        Q.   A few minutes ago we talked about isolated    

         25   Pool B.  I have a couple of questions about that.       

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          1             If I understood your testimony right, you     

          2   said that there's nothing special about the 100-foot    

          3   distance that was included in the Application here.     

          4   That was what Caltrans included in the Application and  

          5   the Board approved it; is that right?                   

          6        A.   Yes.                                          

          7        Q.   And you, also, mention that the Regional      

          8   Board, in all likelihood, have approved shorter         

          9   distances than 100 feet in other situations?            

         10        A.   Yes.                                          

         11        Q.   Knowing that there's nothing special about    

         12   the 100 foot distance here, and also knowing that the   

         13   Board has probably accepted less than 100 feet in other 

         14   situations, if, back at the time of the Application,    

         15   Caltrans would have said:  "The furthest we could put   

         16   away a basin within the gravel bar in the work area is  

         17   70 feet," would there be any reason, from your          

         18   standpoint, to disapprove that request?                 

         19        A.   No.                                           

         20        Q.   You mentioned that you visited the project    

         21   site a couple of times before actually writing the      

         22   permit; is that right?                                  

         23        A.   I think I stated that you could see the       

         24   project site from the highway, and I drive the highway  

         25   a lot.                                                  

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          1        Q.   So you're generally familiar with the project 

          2   site?                                                   

          3        A.   Yes.                                          

          4        Q.   Did you ever actually get out on the ground   

          5   prior to writing the permit and walk around and look at 

          6   the area?                                               

          7        A.   No.                                           

          8        Q.   When Caltrans' Application mentioned the      

          9   100-foot sedimentation basin setback, would it,         

         10   typically, have been your practice to visit the project 

         11   site and determine whether or not 100 foot standard is  

         12   feasible or possible?                                   

         13        A.   The requirements -- the distance in the       

         14   requirements aren't the only variables, so the          

         15   requirements, themselves, capture protection of water   

         16   quality whether or not it is at 70 or 100 or 10.  And   

         17   the variables would include things like the rate of     

         18   disposal.                                               

         19             So using a basin 10 feet away for a small     

         20   volume of water could achieve the same result.          

         21        Q.   As a matter of practice in writing 401        

         22   Certifications, do you perform any investigation of the 

         23   project site to determine whether or not certain        

         24   features, certain BMPs, are possible prior to writing   

         25   that Certification?                                     

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          1        A.   Would you say that again?                     

          2        Q.   Sure.  As part of your own practice in        

          3   writing 401 Certifications do you ever visit, you know, 

          4   project sites to determine whether or not proposed      

          5   BMPs are possible within the area covered by the        

          6   project?                                                

          7        A.   Yes.                                          

          8        Q.   Is this something that you did on this        

          9   occasion for this project, Confusion Hill?              

         10        A.   Not with respect to the basin.                

         11        Q.   With respect to anything else?                

         12        A.   I think in the context of concrete washout we 

         13   had discussions that -- I don't know.  At least to get  

         14   into your question a little bit --                      

         15        Q.   Well, I'll stop you there because I'm aware   

         16   of the concrete washouts, that that was a discussion    

         17   between you and Caltrans prior to you writing the       

         18   permit.                                                 

         19        A.   And during.  What I was actually more         

         20   specifically getting to is iterations of BMPs while we  

         21   were on the project.  So I was consulted, I guess, you  

         22   could say.                                              

         23        Q.   Okay.  The question that I had was, you're    

         24   facing an Application for a 401 Certification and it    

         25   identifies a number of BMPs that, to some extent, may   

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          1   rely upon the actual facts on the ground, whether or    

          2   not topography or the terrain allows for a specific     

          3   BMP.                                                    

          4             Do you have a practice of visiting the        

          5   project site before writing a permit to determine       

          6   whether or not certain proposals or feasible or even    

          7   possible?                                               

          8        A.   Not in general.  Not in general.              

          9        Q.   And for this particular project did you visit 

         10   it, the project site, prior to writing the              

         11   Certification, other than just a drive-by, to determine 

         12   whether or not proposals made for BMPs were possible?   

         13        A.   No.                                           

         14        Q.   You described your review of the Draft        

         15   Administrative Civil Liability Complaint as being       

         16   fairly limited; is that right?                          

         17        A.   Yes.                                          

         18        Q.   Did you ever review any draft versions of the 

         19   ACL Complaint?                                          

         20        A.   I think I did.  I don't know for sure.        

         21        Q.   Would it have been typical and customary for  

         22   you to have to review a Complaint like that and give    

         23   your sign-off?                                          

         24        A.   No.                                           

         25        Q.   Your statement that you might have done that, 

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          1   is that just conjecture on your part, or do you         

          2   actually have a recollection of reviewing this          

          3   particular Complaint before it went out?                

          4        A.   What I recall is staff asking me for things   

          5   to support the Complaint, you know, pictures and memos, 

          6   and maybe asked me questions about that.  But as far as 

          7   the actual document in a draft form, if somebody gave   

          8   that to me, it is not my practice to -- I'm not in a    

          9   role here that provides any kind of approval of that    

         10   document.  So it would be not part of my time well      

         11   spent on my job.                                        

         12        Q.   Who would have been primarily responsible for 

         13   reviewing that document?                                

         14        A.   The supervisor for the enforcement unit.      

         15        Q.   At that time that person would have been --   

         16   David Leland, perhaps?                                  

         17        A.   No, I don't believe he is the supervisor of   

         18   our enforcement unit.  Diana Henrouille is the current  

         19   supervisor.                                             

         20             A lot of things have changed in our           

         21   organization and whose responsibilities are, over the   

         22   time.  I don't -- I can't compare the timelines to see  

         23   when those changes happened.                            

         24        Q.   Sure.  You're not the only one at that point  

         25   in time who was writing 401 Certifications; is that     

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          1   right?  There was another person back, you know, in the 

          2   2006 time frame?                                        

          3        A.   Yes.                                          

          4        Q.   Who would that person or persons have been?   

          5        A.   Either Andrew Jensen or Steven Bargsten.      

          6        Q.   To your knowledge, would either of them have  

          7   been asked to review the Confusion Hill ACL Complaint   

          8   before it went out?                                     

          9        A.   No.                                           

         10        Q.   You also mentioned you took a number of       

         11   photographs of the site during your visits during the   

         12   construction process?                                   

         13        A.   Yes.                                          

         14        Q.   You might know that the Regional Board has    

         15   provided us, collectively, with a large number of       

         16   photographs, most or all of which have been, you know,  

         17   identified as taken by Biological Monitors.             

         18             Do you know if any of the photographs that    

         19   you took made their way into the Complaint?  I'm sorry, 

         20   made their way into the batches of photographs given to 

         21   different parties?                                      

         22        A.   Yes.                                          

         23        Q.   All of them?                                  

         24        A.   Yes.                                          

         25        Q.   How do we identify which ones were taken by   

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          1   you versus others?                                      

          2        A.   I was told that the photos I provided were    

          3   put on a disk that has my name on it.                   

          4        Q.   I also want to ask you a couple of questions  

          5   about your site visits during the construction process, 

          6   and I was a little bit unclear about that.              

          7             I know that there were times when you did a   

          8   drive-by and checked out the site from the road, but    

          9   then there were also occasions when you actually got    

         10   out in the project area and walked around and           

         11   inspected, right?                                       

         12        A.   (Witness nods head.)                          

         13        Q.   Were you able to estimate how many times you, 

         14   actually, got out and inspected and walked around the   

         15   site during the construction process?                   

         16        A.   Are you asking me to estimate how many times  

         17   I was at the site?                                      

         18        Q.   Exactly.                                      

         19        A.   Five.                                         

         20        Q.   Let me back up.  Would you have prepared any  

         21   inspection reports or memoranda or other documents      

         22   recording the observations you made during those        

         23   visits?                                                 

         24        A.   Yes.                                          

         25        Q.   What type of document would that have been?   

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          1        A.   Inspection memo.                              

          2        Q.   Is that a form memorandum the Regional Board  

          3   maintains, or is it a form that you fill out?  It is    

          4   called an inspection memo?                              

          5        A.   It is just text from my observations that     

          6   might reference things such as pictures.  It is not a   

          7   form, per se.  It may or may not be on our letterhead,  

          8   but the subject is typically "Inspection Memo," and the 

          9   name of the facility, or the site or the project.       

         10        Q.   Are these memoranda something that you're     

         11   required to prepare by the Regional Board, or is this   

         12   your own practice?                                      

         13        A.   It is highly encouraged that we document our  

         14   inspections in memos.                                   

         15        Q.   So it is a little bit of both, it sounds      

         16   like, is the answer?                                    

         17        A.   There's a request that we do that.  To be     

         18   honest, it is not always feasible.                      

         19        Q.   Sure.                                         

         20        A.   For example, a drive-by that I don't see      

         21   anything is not likely to get written up as a memo that 

         22   I drove by and didn't seen anything; whereas, getting   

         23   out on the ground, taking photos, it is likely I'm      

         24   going to write up the nature of the photos, the nature  

         25   of anything I saw -- good, bad or indifferent.          

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          1        Q.   Let me ask this.  Did you prepare inspection  

          2   memos for each of those five or so visits that you made 

          3   at the Confusion Hill site?                             

          4        A.   Yes.                                          

          5        Q.   Do you know if they have been produced to the 

          6   parties in this matter?                                 

          7        A.   I know to the extent the memos that I wrote   

          8   were put into the file.  So if you have a copy of the   

          9   file they would be provided.                            

         10        Q.   Do you have a copy of the 401 Certification   

         11   in front of you?                                        

         12        A.   I do.                                         

         13             MR. HUNGERFORD:  I want to ask you a couple   

         14   of questions about that.  If you go to Condition 7 and  

         15   take a look at that real quick.                         

         16                 (Witness examines document.)              

         17   BY MR. HUNGERFORD:                                      

         18        Q.   Okay.  The last phrase of that condition      

         19   references surface waters.  As intended by this         

         20   condition, what does "surface waters" mean?             

         21        A.   The flowing portion of the river.             

         22        Q.   So where water, actually, is present?         

         23        A.   I guess I would clarify that, for turbidity   

         24   control, you're speaking of flowing water, and for      

         25   sediment it is the stream channel.                      

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          1        Q.   For turbidity it would mean the flowing       

          2   water?                                                  

          3        A.   I guess for both it would be the flowing      

          4   water for sediment because the turbidity, obviously,    

          5   wouldn't be something that you would see on dry land.   

          6        Q.   So just to be clear, you know, for the        

          7   purposes of this condition, "surface waters" means      

          8   flowing water for sediment and turbidity control?       

          9        A.   Yes.                                          

         10        Q.   Now, going down to Condition 9, the very last 

         11   phrase of that condition is "waters of the state."      

         12   Just to make sure that we have all of the terminology   

         13   correct, you have mentioned that that refers to both    

         14   surface waters and groundwaters, correct?               

         15        A.   Yes.                                          

         16        Q.   And then further down, just to use            

         17   Condition 13 as an example, you have referenced "waters 

         18   of the United States."  What is your understanding of   

         19   that phrase?                                            

         20        A.   Waters of the United States is a smaller area 

         21   or subset of waters of the state that would only        

         22   include the area below ordinary high water.             

         23        Q.   And the ordinary highwater mark, that's not   

         24   always the same thing as the 100-year floodplain, is    

         25   it?                                                     

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          1        A.   They are usually not the same.                

          2             MR. HUNGERFORD:  All right.  If you look at   

          3   Condition 10 on the Certification.  Just take a quick   

          4   moment to look at that, and I'll ask you a question.    

          5   I'm sorry, I meant Condition 11.                        

          6                 (Witness examines document.)              

          7   BY MR. HUNGERFORD:                                      

          8        Q.   Okay.  The first sentence references a work   

          9   area, right?  Does that include the gravel bar where    

         10   people were putting up trestles and doing various       

         11   activities?                                             

         12        A.   Yeah -- yes.                                  

         13        Q.   Now, the first sentence, also, refers to      

         14   "excess material or debris," and in the second sentence 

         15   it refers to "rubbish."  What is your understanding of  

         16   the difference between "excess material or debris" and  

         17   "rubbish"?                                              

         18        A.   I would have to say they are synonymous here. 

         19        Q.   Okay.  Now, obviously, you're aware that,     

         20   having visited the site during the construction         

         21   process, that various, you know, items were placed in   

         22   and around the river or gravel bar -- pieces of wood,   

         23   plates of metal, that sort of thing; is that right?     

         24        A.   I didn't get a question out of that.          

         25        Q.   Yes, that was bad wording.                    

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          1             Is it fair to state that during your          

          2   observations of the project site during the             

          3   construction process you witnessed pieces of wood,      

          4   pieces of metal, other various items in and around the  

          5   gravel bar?                                             

          6        A.   Yes.                                          

          7        Q.   I'm assuming it would be your understanding   

          8   that all of those things, at some point, would be       

          9   picked up, and that certainly would be the expectation  

         10   of the 401 Certification; is that your understanding?   

         11        A.   That is my expectation.                       

         12        Q.   So the fact that a piece of wood may be       

         13   placed on the gravel bar temporarily prior to being     

         14   cleaned up, would that be a violation of Certification? 

         15        A.   Yes.                                          

         16        Q.   What part of the Certification would that     

         17   violate?                                                

         18        A.   It could be 9.                                

         19        Q.   I'm interested then in your understanding of  

         20   how you harmonize Condition 9 which would basically     

         21   prohibit something as minor as a notepad from being put 

         22   on the river bank, you know, with Condition 11, which   

         23   contemplates that there will be various items placed on 

         24   the gravel bar and provided they are eventually cleaned 

         25   up as part of normal cleanup practices.                 

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          1        A.   Okay.  Item 11 or Condition 11 is, when       

          2   operations are completed, you move everything that's    

          3   not permanent at least 150 feet away from the highwater 

          4   mark; whereas, No. 9 says you can't place anything      

          5   where it can be washed by rainfall into waters of the   

          6   state.                                                  

          7             Is that what you're --                        

          8        Q.   Let's use this notepad as an example.  If     

          9   you're in the construction process, and this is placed  

         10   on the gravel bar, is that a violation of Condition 9?  

         11        A.   I think it is a violation of Condition 9.  If 

         12   you're asking me if I'm going to write it up in a memo  

         13   as a violation of Condition 9, probably not.            

         14        Q.   Fair enough.  What would Condition 11         

         15   require?  That this notepad be removed at some point in 

         16   time at the end of construction?                        

         17        A.   Yes.                                          

         18        Q.   If you turn to Condition 19, please.  That is 

         19   discussing turbidity measurements, correct?             

         20        A.   Turbidity monitoring.                         

         21        Q.   Turbidity monitoring.  So in the second       

         22   paragraph of Condition 19 there is the requirement that 

         23   measurements be collected upstream within 50 feet of    

         24   project activities and downstream within 100 feet of    

         25   the source of turbidity; is that right?                 

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          1        A.   Yes.                                          

          2        Q.   What is the source of the 50/100 foot         

          3   measurements?  Where do those measurements come from?   

          4        A.   From me.                                      

          5        Q.   Is that just based on your own experience     

          6   for -- I don't want to put words in your mouth, but you 

          7   came up with the numbers.  What was the basis for       

          8   them?                                                   

          9        A.   Fifty feet would likely provide a             

         10   background -- natural background conditions as it -- it 

         11   is not likely that water in the South Fork would move   

         12   50 feet upstream to effect that.                        

         13             And within 100 feet -- at the time of writing 

         14   this, 100 feet was most likely the farthest downstream  

         15   distance that would be approved for this type of        

         16   monitoring.  So I attempted to make this distance as    

         17   long as possible recognizing that there was going to be 

         18   some turbidity and --                                   

         19             Take the swimmer, for example.  You might     

         20   find turbidity within a couple of feet downstream and   

         21   be able to say that's 20 percent above background;      

         22   whereas, in a construction project, if you put the      

         23   monitoring point 2 feet downstream of the backhoe you   

         24   would always be violating; whereas -- this says if      

         25   you're violating 100 feet then you need to change your  

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          1   practices to make it less than 100 feet, which is more  

          2   practical, I think, than an absolute point of -- point  

          3   of downstream exceedance requirement.                   

          4        Q.   So, again, recalling the Basin Plan, just     

          5   uses a simple 20 percent above background, it doesn't   

          6   actually put any guardrails around it such as a certain 

          7   distance upstream and downstream?                       

          8        A.   It just says except for allowables on         

          9   dilution within a permit.                               

         10        Q.   If I'm understanding right then, this is your 

         11   take on, you know, what's a practical way of measuring  

         12   whether or not you have achieved compliance with the    

         13   Basin Plan; is that fair to state?                      

         14        A.   I think it would be more fair to state it     

         15   that that is the practical distance that we would take  

         16   an action for turbidity violation --                    

         17        Q.   Okay.                                         

         18        A.   -- or turbidity exceedance, I should say.     

         19             Whereas, if turbidity is exceeded within 100  

         20   feet it is a violation of the Basin Plan that this is   

         21   contemplating we are not going to or we are probably    

         22   not going to make a big deal of it other than improving 

         23   BMPs.                                                   

         24        Q.   So absent this provision, you know, if you    

         25   were less than 100 feet downstream from the source and  

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          1   that 20 percent level was breached, then it would       

          2   probably be an actionable violation.  But in this case, 

          3   you know, the permit kind of makes that allowance that  

          4   there wouldn't be enforcement within 100 feet?          

          5        A.   I'm not saying that it gives that allowance.  

          6   That's -- as a staff person, when I can inspect and     

          7   make recommendations on enforcement cases, that would   

          8   be the way that I would handle that type of situation.  

          9        Q.   Okay.                                         

         10        A.   I would -- I would just add that it is --     

         11   incorporated into our decision making on that, is the   

         12   use of the BMPs to begin with.                          

         13             In other words, if very ample, robust BMPs    

         14   are in place, and there's a discharge that causes       

         15   turbidity 50 feet downstream or 100 feet downstream,    

         16   we -- we may not view that the same as if the turbidity 

         17   is 100 feet downstream and there's no BMPs in place.    

         18        Q.   And, finally, you mentioned at the early part 

         19   of your deposition that there was a changeover in       

         20   responsibilities from yourself for the Caltrans         

         21   permitting, and then there was another person that came 

         22   on.  I forget that person's name.  But there was a      

         23   changeover, correct?                                    

         24        A.   Yes.                                          

         25        Q.   And that took place, I believe, after spring  

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          1   of 2007?                                                

          2        A.   Yes.                                          

          3        Q.   And what was the reason for the change?       

          4        A.   We hired a new staff person to deal solely    

          5   with Caltrans projects as they relate to Water Quality  

          6   Certification.                                          

          7        Q.   And you mentioned that -- you really          

          8   suggested that that was too much of a workload for one  

          9   person to handle?                                       

         10        A.   Yes.                                          

         11        Q.   Who was it that made that hiring decision?    

         12        A.   I think Caltrans had a big role in the hiring 

         13   decision since they are paying for the person to be     

         14   hired.  Do you not understand that?                     

         15        Q.   Pardon?                                       

         16        A.   Did you not understand that persons being     

         17   hired as a Caltrans liaison through a contract from     

         18   Caltrans --                                             

         19        Q.   I don't work for Caltrans, so I don't have a  

         20   complete understanding --                               

         21        A.   Okay.  I'm sorry.                             

         22        Q.   That's okay.                                  

         23        A.   Yeah.  I don't know how much --               

         24        Q.   So as I take it, Caltrans supports, in whole  

         25   or in part, this person's position; is that right?      

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          1        A.   Yes.                                          

          2        Q.   And who is that person now?                   

          3        A.   Jeremiah Puget.                               

          4        Q.   Is Jeremiah Puget someone hired by Caltrans,  

          5   specifically, or hired by the Regional Board?           

          6        A.   Hired by the Association of Bay Area          

          7   Governments under contract for Caltrans to work for the 

          8   Water Board.                                            

          9        Q.   And that position didn't exist prior to       

         10   Jeremiah Puget --                                       

         11        A.   That's correct.                               

         12             MR. HUNGERFORD:  I don't have any other       

         13   questions.  Thank you.                                  

         14                     FURTHER EXAMINATION                   

         15             MS. ZAZZERON:  Let's revisit Condition 11.    

         16   BY MS. ZAZZERON:                                        

         17        Q.   The phrase "when operations are completed,"   

         18   does that refer to operations on a daily basis or some  

         19   other temporal reference?                               

         20        A.   It could be argued that it means on a daily   

         21   basis.                                                  

         22        Q.   When you wrote it, what was your intent?      

         23        A.   I didn't write that condition.  I just picked 

         24   it out of standard conditions and included it because   

         25   I'm required to include a lot of standard conditions in 

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          1   the Certifications.  I didn't author this original --   

          2   language originally.                                    

          3        Q.   What was your understanding of that phrase    

          4   when you included it?                                   

          5        A.   That we are not allowing construction         

          6   projects to throw waste into the stream, or near the    

          7   stream, or where it can fall into the stream, or can be 

          8   left behind when they leave.                            

          9        Q.   Again, leave for the day, leave --            

         10        A.   It could be if it was egregious and we felt   

         11   like the operation was complete.  I mean, you know,     

         12   projects go on intermittently for many years sometimes. 

         13   In certain cases "operations are complete" could mean   

         14   for the winter, for the week, for the project.          

         15        Q.   So you would agree that this phrase could be  

         16   read in different ways?                                 

         17        A.   It could.                                     

         18        Q.   Okay.  Compared to the size and scope of      

         19   other projects that you reviewed for 401                

         20   Certifications, and in this time period of 2005-2006,   

         21   is the Confusion Hill project, would you say, on the    

         22   large side?                                             

         23        A.   Yes, on the large side.                       

         24        Q.   Okay.  Were there any, within the, let's say, 

         25   three years before, three years after Certification,    

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          1   were there any projects that you would consider bigger  

          2   in terms of size and scope?                             

          3        A.   I was involved in the Willits Bypass Project  

          4   for many years.  That's a larger project.               

          5        Q.   Okay.                                         

          6        A.   I didn't -- I didn't stay with the project    

          7   through Certification, so just to clarify that part,    

          8   but --                                                  

          9        Q.   Okay.  With respect to water that has been in 

         10   contact with cement or concrete, has the Water Board    

         11   ever okayed contact waters use for dust control?        

         12        A.   It is possible, but I don't know specifics -- 

         13   a specific case.                                        

         14             MS. ZAZZERON:  All right.  I think that's all 

         15   I have.                                                 

         16             MR. HUNGERFORD:  No more.                     

         17             MS. MACEDO:  Off the record.                  

         18                (Whereupon, the deposition was             

         19                   Concluded at 3:33 p.m.)                 

         20                                                           

         21                                                           

         22                                                           

         23                                                           

         24                                                           

         25                                                           

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          1                    CERTIFICATE OF WITNESS                 

          2           I, DEAN PRAT, hereby declare under oath that I  

          3   have read the foregoing testimony recorded on pages 5   

          4   to 73, inclusive, and that the same is a true and       

          5   correct transcript of my said testimony, except as I    

          6   have corrected any answer in ink, initialed such        

          7   correction, and stated on the margin my reason for      

          8   making same.                                            

          9                                                           

         10                                                           

         11                                                           

         12                              ____________________________ 

         13                              DEAN PRAT                    

         14                                                           

         15                                                           

         16   DATE: ____________________                              

         17                                                           

         18                                                           

         19                                                           

         20                                                           

         21                                                           

         22                                                           

         23                                                           

         24                                                           

         25                                                           

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          1                    REPORTER'S CERTIFICATE                 

          2            I, MAREE N. ARMSTRONG, a duly qualified        

          3   certified shorthand reporter for the state of           

          4   California, do hereby certify that the witness in the   

          5   foregoing deposition named, to wit:  DEAN PRAT, was by  

          6   me duly sworn to testify to the truth, the whole truth  

          7   and nothing but the truth in the within-entitled cause; 

          8   that said deposition was taken at the time and place    

          9   therein stated in my presence; that the testimony of    

         10   said witness was recorded by me stenographically, and   

         11   was at my direction thereafter transcribed into         

         12   typewriting.                                            

         13            I further certify that I am not a relative or  

         14   employee or attorney or counsel of any of the parties,  

         15   nor am I a relative or employee of such attorney or     

         16   counsel, nor am I financially interested in the within  

         17   action.                                                 

         18            In witness whereof, I have hereunto set my     

         19   hand this 5th day of January, 2011.                     

         20                                                           

         21                            ______________________________ 

         22                            MAREE N. ARMSTRONG, CSR #11284 

         23                                                           

         24                                                           

         25                                                           

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