                      CALIFORNIA REGIONAL WATER CONTROL BOARD         

                                 NORTH COAST REGION                   

                                     ---oOo---                        

              In the Matter of:                                       
                                                                      
              ADMINISTRATIVE CIVIL LIABILITY                          
              Complaint No. R1-2009-0095.                             
                                                                      
              ______________________________/                         
                                                                      
                                                                      
                                                                      
                                                                      
                                                                      
                                                                      
                                                                      
                                                                      
                                   Deposition of:                     
                                                                      
              
                                   MONA DOUGHERTY                     
              
                                                                      
                             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 MONA DOUGHERTY taken pursuant   

          2   to 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 10:22 a.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:  MONA DOUGHERTY                       Page No. 

          4            Examination by Ms. Zazzeron                 5  

          5            Examination by Mr. Hungerford              50  

          6                           ---oOo---                       

          7                                                           

          8   Nos.                                           Page No. 

          9    A     "Subpoena Duces Tecum to                     28  
                     Mona Dougherty."                                 
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          1                       MONA DOUGHERTY,                     

          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 morning.                                 

          8        A.   Good morning.                                 

          9        Q.   Please state your name and spell your last    

         10   name for the record.                                    

         11        A.   Mona Dougherty, D-o-u-g-h-e-r-t-y.            

         12        Q.   And Ms. Dougherty, have you ever had your     

         13   deposition taken before?                                

         14        A.   No.                                           

         15        Q.   Have you had a chance to go over some of the  

         16   procedures with your attorney?                          

         17        A.   I think.                                      

         18        Q.   Okay.  Well, let me give you the highlights.  

         19        A.   I'm not sure I went over what you're talking  

         20   about, so --                                            

         21        Q.   Of course.  It is very important, for the     

         22   sanity of our court reporter and to have a clear        

         23   record, that I wait until you're done answering my      

         24   question before I start talking again, and also that    

         25   you wait until I'm done asking the question before you  

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          1   start to speak.                                         

          2        A.   Yes.                                          

          3        Q.   You just said "yes" in a very clear voice.    

          4   It is important that we do answer audibly.  Nods of the 

          5   head and waving of the arms, as I'm prone to do, do not 

          6   show accurately on the record.  All right?              

          7        A.   Yes.                                          

          8        Q.   I ask that when I state a question, if you    

          9   don't understand it, please, by all means, ask me to    

         10   clarify or restate it.                                  

         11             We don't want you to guess as to what the     

         12   question really means, and then later on read the       

         13   transcript, and go, "She really wasn't asking that, she 

         14   was asking this."  Is that okay?                        

         15        A.   Yes.                                          

         16        Q.   Don't feel shy about asking for               

         17   clarification.                                          

         18             It is important that you do not guess or      

         19   speculate as to an answer, but we are entitled to your  

         20   best estimate.  And an example is that if I were to ask 

         21   you how much money is in my wallet, that would be a     

         22   complete guess on your part; but if I were to ask you   

         23   how much money was in your wallet, you could give me    

         24   likely your best estimate, you wouldn't know exactly.   

         25             So do you understand the distinction there?   

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          1        A.   Yes.                                          

          2        Q.   And then when this deposition is done in a    

          3   few weeks, or so, you will get a copy like in a booklet 

          4   form, and you will have a chance to read it.            

          5             You are certainly entitled to make            

          6   corrections typographically.  If you make substantive   

          7   corrections we are entitled to comment on that if it    

          8   goes to a hearing; do you understand?                   

          9        A.   Yes.                                          

         10        Q.   Finally, without getting into any detail, is  

         11   there any reason physiologically, pharmaceutically, or  

         12   physically that you cannot give accurate and true       

         13   testimony today?                                        

         14        A.   No.                                           

         15        Q.   All right.  You are currently employed by     

         16   the -- is it State Water Board or North Regional Water  

         17   Board?                                                  

         18        A.   North Regional Quality Control Board.         

         19        Q.   How long have you been so employed?           

         20        A.   This last July is ten years.  My first eight  

         21   months was at San Diego Regional Water Board.           

         22        Q.   What is your current title or classification? 

         23        A.   Water Resources Control Engineer.             

         24        Q.   Have you ever held any other title or         

         25   classification with the Water Board?                    

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          1        A.   No.                                           

          2        Q.   You have testified just a few minutes that    

          3   you have not testified in a deposition before.  Have    

          4   you ever testified at a hearing?                        

          5        A.   Yes.                                          

          6        Q.   Under oath?                                   

          7        A.   Yes.                                          

          8        Q.   How many times?                               

          9        A.   Many.  I'll try to estimate.  Fifteen in      

         10   front of our Board and in front of San Diego's Board,   

         11   maybe more.  Fifteen to twenty would be probably the    

         12   best.                                                   

         13        Q.   Well, you were testifying as to factual       

         14   occurrences that occurred during a project or something 

         15   like that?                                              

         16        A.   In some cases.  In others I was presenting a  

         17   permit or other action to our Board for adoption.       

         18        Q.   Okay.  Of the 15 times, how many times would  

         19   you say that you were testifying as a percipient        

         20   witness to an event?                                    

         21        A.   Clarify "percipient"?                         

         22        Q.   Something that you personally heard, saw,     

         23   read, wrote.                                            

         24        A.   So "wrote" is included.                       

         25             I would think I -- would think all of them,   

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          1   either a permit I wrote, an inspection I conducted,     

          2   documents I reviewed.  So I would say probably all of   

          3   them.                                                   

          4        Q.   And how many times have you testified with    

          5   respect to giving evidence about a violation -- alleged 

          6   violation?                                              

          7        A.   I believe two or three.                       

          8        Q.   Did any of those events involve the           

          9   Department of Transportation?                           

         10        A.   Yes.                                          

         11        Q.   How many of those?                            

         12        A.   One.                                          

         13        Q.   Which one is that?                            

         14        A.   The previous Confusion Hill ACL.              

         15        Q.   Okay.  We know that involved MCM, as well.    

         16   How about the other two times that you testified as to  

         17   a violation?  Did that involve MCM?                     

         18        A.   No.                                           

         19        Q.   Have you obtained any educational degrees?    

         20        A.   I have a Bachelor of Science in Environmental 

         21   Engineering.                                            

         22        Q.   Where did you get that?                       

         23        A.   Humboldt State University.                    

         24        Q.   What year did you graduate?                   

         25        A.   2000.                                         

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          1        Q.   Did you have any jobs after graduating but    

          2   before going to the Water Board?                        

          3        A.   I, for a short period of time, was actually   

          4   an intern with Caltrans at District One.  For a short   

          5   period after I graduated I had been employed there for  

          6   a while.  But that was my only job in between.          

          7        Q.   Was that in the environmental branch?         

          8        A.   Previously?  Not at that time.  At that time  

          9   I was in surveying, but I had worked in environmental.  

         10        Q.   Do you have any professional license?         

         11        A.   Yes.  I have an EIT license and a             

         12   professional engineers license.                         

         13        Q.   What is the engineering designation?          

         14        A.   Civil.                                        

         15        Q.   What was the first one you mentioned?         

         16        A.   EIT or FE.  Engineering training or -- I      

         17   don't know what "FE" stands for, but it is the          

         18   preliminary test that you take to -- so in order, at    

         19   some point in the future, you can take the PE.          

         20        Q.   So in your current position with the Board    

         21   what are your day-to-day responsibilities?              

         22        A.   I work, primarily, on municipal stormwater.   

         23   So I work with all the Phase One and Phase Two          

         24   municipalities in our region, and I work on the         

         25   Caltrans municipal water permit.                        

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          1        Q.   Is that also known as the NPDES permit?       

          2        A.   Yes.                                          

          3        Q.   As part of your position with the Water       

          4   Board, are you required to attend training --           

          5   job-related training?                                   

          6        A.   I do.  I do attend training.  It hasn't been  

          7   made clear to me what trainings I'm required to attend  

          8   beyond I attend occasional training.                    

          9        Q.   Have you taught any classes at any time?      

         10        A.   I would say probably not a formal class.  I   

         11   have given like technical forums or presentations on    

         12   technical issues.                                       

         13        Q.   At what point in time did you first become    

         14   aware, in any form, of the Confusion Hill project?      

         15        A.   I'm not sure the first time I had heard about 

         16   it.  We had an application pending in our office for a  

         17   while that I was peripherally aware of.                 

         18             The first time I became aware and I started   

         19   playing a role was in November of 2006.                 

         20        Q.   Okay.  You referred to an application.  Is    

         21   that referring to the application for a Section 401     

         22   Certification?                                          

         23        A.   Yes.                                          

         24        Q.   So what happened in November of '06?          

         25        A.   Corinne Gray from the Department of Fish and  

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          1   Game contacted me that there were some violations       

          2   occurring at the Confusion Hill project.  And Dean      

          3   Prat, who had been working on the project previously,   

          4   was on vacation.                                        

          5             So Corinne asked if she could bring me some   

          6   photos, and I said "yes."  So she brought me some       

          7   photos, and I looked at them, and it seemed indicative  

          8   that there were some violations going on.               

          9        Q.   Corrine Gray, do you know the spelling of     

         10   that because you know that Maree is going to ask you.   

         11        A.   C-o-r-r-i-n-e, and I believe Gray is with an  

         12   "a," G-r-a-y.                                           

         13        Q.   At the time Ms. Gray contacted you in         

         14   November '06, what was your understanding as to her     

         15   position with the Department of Fish and Game?          

         16        A.   At that time she was working as a biologist   

         17   on stream bed alteration agreements, that kind of       

         18   thing.  So she was working as a biologist.  I'm not     

         19   sure if she took the photos.  She may have gotten them  

         20   from the biological monitor who was reporting to Fish   

         21   and Game.                                               

         22        Q.   What were the names, if you know, of the      

         23   Biological Monitors who were reporting to Fish and      

         24   Game?                                                   

         25        A.   I have heard their names, but I can't recall  

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          1   them right now.  I never met them.                      

          2        Q.   Were either of them named Bradford Norman or  

          3   Carl Page?                                              

          4        A.   Carl Page is, definitely, familiar.           

          5        Q.   Is it your understanding that Mr. Page was a  

          6   biological monitor working for Fish and Game?           

          7        A.   I believe that the requirement for his        

          8   employment may have come from NOAA, but I know that he  

          9   was submitting reports to Fish and Game.                

         10        Q.   How many times did you speak with Ms. Gray?   

         11        A.   I would say between three and five.           

         12        Q.   Were the three to five occasions all within   

         13   that same November 2006 time period?                    

         14        A.   I would say most likely between November      

         15   through the spring of 2007.                             

         16        Q.   In November of 2006, did Ms. Gray send you    

         17   any memos or anything in writing reflecting the alleged 

         18   violations she was referring to?                        

         19        A.   No.                                           

         20        Q.   In November of '06, approximately, how many   

         21   violations did Ms. Gray report?                         

         22        A.   She didn't give me a specific number.         

         23        Q.   Okay.                                         

         24        A.   She just showed me some photos and said that  

         25   there were some violations of the stream bed alteration 

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          1   agreement occurring, and she wanted to know whether we  

          2   were concerned about violations of the 401.             

          3        Q.   Did you meet with Ms. Gray in person?         

          4        A.   Yes.                                          

          5        Q.   On how many occasions?                        

          6        A.   For this project I would say, probably, just  

          7   once.                                                   

          8        Q.   All right.  Was that near the November '06    

          9   time period?                                            

         10        A.   Yes.                                          

         11        Q.   The incidents that Ms. Gray reported to you   

         12   were those ever encompassed by you or someone else from 

         13   the North Coast Regional Board in a Notice of           

         14   Violation?                                              

         15        A.   Yes.                                          

         16        Q.   Would that be the November 27th Notice of     

         17   Violation?                                              

         18        A.   I believe that's the date, yes.               

         19        Q.   Subsequent to the issuance of that -- we will 

         20   call it NOV, to make it short, did Ms. Gray             

         21   subsequently contact you about any other violations?    

         22        A.   I can't recall.  I don't think so.            

         23        Q.   What was the general substance of             

         24   conversations that you had with Ms. Gray after November 

         25   2006?                                                   

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          1        A.   She called several times to ask if our office 

          2   was going to take any action, so we discussed what our  

          3   office was considering.                                 

          4        Q.   Take action as in what?                       

          5        A.   Notice of Violation or some type of           

          6   inspection, something like that.                        

          7        Q.   What was your response to Ms. Gray?           

          8        A.   I -- I had cc'd her on the Notice of          

          9   Violation, so I told her that was in the mail.  And     

         10   then I said that -- I thought that I had referred the   

         11   inspection issue at that point back to Dean Prat who    

         12   was back from vacation, and I can't give any dates that 

         13   he inspected.                                           

         14        Q.   You estimated that you had communication with 

         15   Ms. Gray up until or through the spring of 2007.  What  

         16   was the substance of those conversations that reached   

         17   into 2007?                                              

         18        A.   I believe our last one, which I think was in  

         19   early 2007, was to tell me that she was being           

         20   transferred within Fish and Game and she would be       

         21   working on water rights issues and that Karen Maurer    

         22   will be my contact at that point.                       

         23        Q.   What was Karen Maurer's position?             

         24        A.   She is a warden with Fish and Game.  Retired  

         25   now.                                                    

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          1        Q.   Were you acquainted with Ms. Maurer           

          2   previously?                                             

          3        A.   I had worked with her on several projects     

          4   previously.                                             

          5        Q.   Did Warden Maurer contact you at any time     

          6   about alleged violations on Confusion Hill?             

          7        A.   Yes.                                          

          8        Q.   On how many occasions?                        

          9        A.   Perhaps, five.  I think five.                 

         10        Q.   Were these communications by e-mail, by       

         11   telephone, a mixture of both, or some other medium?     

         12        A.   I can't recall whether she e-mailed me.  She  

         13   did come to the office, I believe, once, maybe twice,   

         14   to drop off documents.  And then we had several phone   

         15   conversations.                                          

         16        Q.   When is the last time you communicated in any 

         17   form with Warden Maurer?                                

         18        A.   I don't remember the time.  I believe it      

         19   was -- it was not long before she was planning on       

         20   retiring because she did call me to tell me that she    

         21   would be retiring soon.                                 

         22        Q.   The documents that she brought over,          

         23   approximately, how many were there, if you know?        

         24        A.   Quite a few.  She brought over several CDs of 

         25   photos and a large stack of Engineering Diaries.        

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          1        Q.   From where did she procure those diaries?     

          2        A.   I believe she went to the Caltrans field      

          3   office for Confusion Hill and asked for them and        

          4   received them there.                                    

          5        Q.   Okay.                                         

          6        A.   Can I add something to a previous answer?     

          7        Q.   Sure.                                         

          8        A.   I believe my last discussion with her was in  

          9   2007 because I -- I met with Kyle Hiatt in 2008 on the  

         10   project.  He had taken over for her at that point.      

         11        Q.   Confusion Hill?                               

         12        A.   Um-hmm.                                       

         13        Q.   Yes?                                          

         14        A.   Um-hmm.                                       

         15        Q.   That was a "yes"?                             

         16        A.   Yes, sorry.                                   

         17        Q.   That's okay.  Did Lieutenant Hiatt ever       

         18   contact the Water Board to report any violations at     

         19   Confusion Hill?                                         

         20        A.   I don't recall whether he mentioned specific  

         21   violations, but he did contact me and asked if I wanted 

         22   to do a joint inspection with him.                      

         23        Q.   And what was the upshot of that?              

         24        A.   We -- we went to an unannounced inspection    

         25   on -- I believe it was the first week of January 2008.  

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          1        Q.   Were any violations noted at that time?       

          2        A.   There were a few BMP maintenance violations.  

          3   Not -- not to the same extent as the violations that we 

          4   had information from in 2006 and 2007.                  

          5        Q.   All right.  Did the 2008 inspection result in 

          6   any e-mails or NOVs?                                    

          7        A.   No.                                           

          8        Q.   Were your observations communicated to        

          9   someone from either Caltrans or MCM while you were      

         10   on-site?                                                

         11        A.   Sebastian Cohen was with us the entire time,  

         12   so I think I did make a couple of comments to him about 

         13   areas that needed maintenance.                          

         14        Q.   To your knowledge, were the violations that   

         15   you noted corrected?                                    

         16        A.   He sent me follow-up photos and an e-mail     

         17   saying that they had been.                              

         18        Q.   You indicated, and correct me if I'm wrong,   

         19   you were peripherally aware of the 401 application      

         20   having come in for Confusion Hill; is that correct?     

         21        A.   Yes.                                          

         22        Q.   Did you work on any aspect of the application 

         23   or the issuance of the Certification in any more than a 

         24   peripheral manner?                                      

         25        A.   No.                                           

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          1        Q.   Prior to November of 2006 had you read the    

          2   permit that was issued?                                 

          3        A.   No.                                           

          4        Q.   At what point in time did you first review    

          5   the permit?                                             

          6        A.   I believe it was directly following when I    

          7   received the photos from Corrine Gray, so probably a    

          8   week after that in November 2006.                       

          9        Q.   To your knowledge, who from the Board had     

         10   direct involvement with the application and the         

         11   issuance of the Certification?                          

         12        A.   Dean Prat.                                    

         13        Q.   Anyone else that you know of?                 

         14        A.   It would have been reviewed by his            

         15   supervising senior, who I believe was Diana Henrouille, 

         16   in our office.  Clerical staff would have helped        

         17   prepare it, and it would have been signed by our        

         18   executive officer, or someone who had signing authority 

         19   for her if she wasn't in that day.                      

         20        Q.   Other than Ms. Gray and Warden Maurer, did    

         21   you speak or have any other type of communication with  

         22   anyone from the Department Fish and Game regarding      

         23   Confusion Hill?                                         

         24             MS. MACEDO:  And Lieutenant Hiatt.            

         25             MS. ZAZZERON:  I'm sorry, and Lieutenant      

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          1   Hiatt.                                                  

          2             THE WITNESS:  No.                             

          3   BY MS. ZAZZERON:                                        

          4        Q.   Other than communications with the Department 

          5   of Fish and Game personnel just mentioned, did you,     

          6   yourself, have any communications with any other        

          7   outside public entities about Confusion Hill?           

          8        A.   For this time frame?                          

          9        Q.   Let's just start with at any time.            

         10        A.   For a previous -- for a previous period, I    

         11   believe it was the City of Garberville, called me       

         12   because they had to shut off their drinking water       

         13   intakes because of a lot of turbid water, and they were 

         14   concerned that it was coming from the Confusion Hill    

         15   Road before the project began.                          

         16        Q.   Did you follow up on that?                    

         17        A.   Yes.  We actually issued a 13267 order        

         18   because we found from photos taken by the traffic or -- 

         19   road watching cameras that a slide had occurred and     

         20   side casting was happening.                             

         21        Q.   And "side casting" is?                        

         22        A.   Side casting is taking some type of heavy     

         23   equipment scraper, something like that, and in this     

         24   instance it is -- side casting is basically pushing     

         25   materials over the side.  In this case the scraper was  

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          1   pushing slide materials into the river.                 

          2        Q.   And, approximately, when was that?            

          3        A.   I can't remember.  We do have -- I could find 

          4   the information out, but I can't remember.              

          5        Q.   Your recollection, though, is that this       

          6   incident occurred prior to the commencement or prior to 

          7   the issuance of the 401 Certification for the Bypass    

          8   Project?                                                

          9        A.   I believe so because I wrote it, so I think   

         10   it would be probably in 2004 or 2005, somewhere in      

         11   there.                                                  

         12        Q.   And that was directed to the Department of    

         13   Transportation?                                         

         14        A.   Yes.                                          

         15        Q.   Any other public entities that you            

         16   communicated with?  And let's narrow it down to the     

         17   Confusion Hill Bypass Project itself.                   

         18        A.   I can't remember communicating with any other 

         19   agencies.                                               

         20        Q.   How many times other than the one you         

         21   mentioned with Lieutenant Hiatt did you personally go   

         22   to the project site?                                    

         23        A.   That was my only inspection where -- that I   

         24   went to the project site.                               

         25             A few other times, when I had been passing    

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          1   through, I had stopped on the road and looked.  But     

          2   that was the first time -- I mean, that was the only    

          3   time that I went to the project site.                   

          4        Q.   Those times when you were driving by and took 

          5   a look, did any violations result from that that you    

          6   wrote up?                                               

          7        A.   No.  It wasn't -- I didn't have a good        

          8   vantage point, so I was trying to see what was          

          9   happening, but I didn't always see what was happening   

         10   very well.                                              

         11        Q.   Now, in terms of the Board's practices with   

         12   respect to projects, are there regular inspections that 

         13   are conducted of ongoing projects?                      

         14        A.   As resources allow.  We don't have unlimited  

         15   amount of resources to do inspections so -- as          

         16   resources allow we do.                                  

         17             The primary inspector for this project was    

         18   Dean Prat.                                              

         19        Q.   All right.  Have you, in the course of your   

         20   employment, been primary inspector for any job sites?   

         21        A.   Yes.  I used to write Caltrans 401s and other 

         22   401s up until several years ago, and then -- I used to  

         23   have a lot of waste water treatment plants, and now I   

         24   do municipal stormwater inspections.                    

         25        Q.   Does the Board have any either written or     

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          1   informal guidelines as to how to decide, given the      

          2   limited resources, when to go to a particular job site? 

          3        A.   Construction?                                 

          4        Q.   Construction, yes.                            

          5        A.   We have -- we have commitments that we have   

          6   to meet for the construction stormwater permit.  I      

          7   don't generally do those inspections, although, I have  

          8   in the past.                                            

          9             When it comes to 401 inspections, we don't    

         10   have any assigned resources to do that, so we don't     

         11   have any commitments, and it is on an as needed basis.  

         12             If we get a Complaint, if we are concerned    

         13   that the project is complicated, it may need to be      

         14   inspected more often, so we kind of make judgment calls 

         15   based on that.                                          

         16        Q.   Okay.  Did Warden Maurer ever indicate to you 

         17   that she had had personal or -- I should say personal   

         18   or professional conflicts with MCM?                     

         19        A.   She didn't specify MCM directly.  She didn't  

         20   specify any particular person or entity directly.       

         21             She did tell me that she was having a hard    

         22   time getting compliance on the project and that she was 

         23   frustrated with the response to her inspections.        

         24        Q.   Did the Department of Fish and Game ever      

         25   institute any enforcement proceedings with respect to   

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          1   Confusion Hill as far as you know?                      

          2        A.   I'm not sure.  I believe they may have done a 

          3   report that was submitted to the Mendocino County       

          4   D.A.'s office, but I haven't seen it.  I don't have     

          5   direct knowledge of that.                               

          6        Q.   Have you talked to David Leland or Kason      

          7   Grady with respect to their depositions?                

          8        A.   I know that they occurred.  They told me they 

          9   were happy it was over.                                 

         10        Q.   Did you see either of their transcripts?      

         11        A.   No, I did not.                                

         12        Q.   Did either of those gentlemen tell you        

         13   anything substantive about the depositions, let's say,  

         14   and of the questions that were asked, for instance?     

         15        A.   None of the questions that were asked.  I'm   

         16   trying to remember.                                     

         17             I believe -- Kason, I believe, mentioned      

         18   something to me.  I'm trying to remember what it was.   

         19   Not specifically about questions.  He said that at one  

         20   point he felt like he was being asked the questions     

         21   over and over again.                                    

         22             I know he made a comment to me, but I can't   

         23   remember.  It wasn't -- it didn't seem important or     

         24   substantive, but he did make a comment to me, but I     

         25   can't remember what it is.                              

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          1        Q.   Okay.  Nothing like it was just as much fun   

          2   as going to Disneyland?                                 

          3        A.   No.                                           

          4        Q.   What role, if any, did you have in the        

          5   drafting of the ACL?                                    

          6        A.   Some of the work I had done in the previous   

          7   ACL was incorporated into this ACL that we are talking  

          8   about today.                                            

          9             I talked to Kason quite a bit about the       

         10   stormwater permit, and I reviewed the ACL.  He asked me 

         11   questions about things.  He wanted my opinion on what   

         12   he should include in the ACL.                           

         13             I have had -- I've been to many meetings with 

         14   Caltrans staff -- with Caltrans and MCM staff to        

         15   discuss the ACL.  I prepared the Notice of Violation    

         16   and the 13267 order that required the Biological        

         17   Monitoring Reports to be submitted to us.  So I believe 

         18   that's my only involvement.                             

         19        Q.   One of the first things you said in response  

         20   to my previous question was that some of the work you   

         21   had done on the previous Confusion Hill ACL was         

         22   incorporated into the current one.  What did you mean   

         23   by that?                                                

         24        A.   Well, in the section -- the 13385 section for 

         25   factors that we review in assessing penalty amounts,    

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          1   some of that work that I had done previously -- I can   

          2   think, specifically, about the total maximum daily load 

          3   for the Eel River, the endangered species work.  I      

          4   believe Kason added on, but included a lot of           

          5   information that I prepared on the prior history of     

          6   violations.  I think that's the extent of it.           

          7        Q.   Let me ask you, slightly off topic, but with  

          8   respect to prior history of violations, does the Board  

          9   have any guidelines or practice as to how far back it   

         10   will reach to incorporate or reference prior violations 

         11   in an ACL?                                              

         12        A.    Our formal guidelines on preparing           

         13   enforcement is the State Board Enforcement Policy.  It  

         14   has been awhile since I read the whole thing.  I don't  

         15   know if there's anything else in there about that.      

         16             I guess, informally, we don't like to go back 

         17   much longer than, I would say -- I have never seen us   

         18   take action on something longer than five to ten years  

         19   after it occurred.                                      

         20        Q.   Okay.  I don't know if I was clear, but I     

         21   meant not taking action, the period of time in which    

         22   the Board can take action, but the period of time in    

         23   which the Board can reference prior violation.          

         24        A.   I'm sorry.                                    

         25        Q.   That's all right.  It was probably my         

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          1   question.                                               

          2        A.   I haven't -- I haven't seen or heard any      

          3   guidance that I can remember on that issue.             

          4        Q.   To your knowledge, was Kason Grady the        

          5   primary individual from the Board that worked on the    

          6   ACL?                                                    

          7        A.   Yes.  He actually took it over from me.  I    

          8   had received the Engineering Diaries and then didn't    

          9   have time to finish the enforcement, so I then passed   

         10   it on to him.                                           

         11        Q.   Had you commenced any part of the ACL at the  

         12   time that it got transferred to Kason Grady?            

         13        A.   No.                                           

         14        Q.   When you said you reviewed the ACL did you    

         15   also -- was that encompassed in your response, review   

         16   of the appendices, that detailed the numerous charges?  

         17        A.   Yes.  I believe I reviewed them early on.  I  

         18   haven't reviewed recently the one included in the ACL   

         19   that went out, but I reviewed several earlier versions. 

         20        Q.   Have you ever spoken to Carl Page?            

         21        A.   No.                                           

         22        Q.   How about Bradford Norman?                    

         23        A.   No.                                           

         24             MS. ZAZZERON:  All right.  Just a couple of   

         25   housekeeping matters.  I would like to have the         

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          1   Subpoena Duces Tecum to Mona Dougherty marked as        

          2   Exhibit A to this transcript.                           

          3                       (Whereupon, Exhibit A was marked    

          4                       for identification.)                

          5   BY MS. ZAZZERON:                                        

          6        Q.   Ms. Dougherty, had you seen Exhibit A prior   

          7   to today?                                               

          8        A.   No.                                           

          9        Q.   Do you have a copy of the Complaint with you? 

         10        A.   Yes.                                          

         11        Q.   So referring to the Complaint, which I have a 

         12   clean copy -- maybe we can attach it later, but we are  

         13   referring to Administrative Civil Liability Complaint   

         14   No. R1-2009-0095.  If you can turn to page 5, paragraph 

         15   14 there.                                               

         16             Did you have input into any portion of        

         17   paragraph 14?                                           

         18        A.   Yes.  I believe that most of that was taken   

         19   from the previous ACL that I had written.               

         20        Q.   Turning to page 6, and that will be           

         21   (B) Nonstormwater Discharge Prohibitions.  Are you      

         22   aware of any allegation that the Department or MCM      

         23   improperly discharged stormwaters?                      

         24        A.   Improperly discharged stormwater?             

         25        Q.   Yes.  Okay.  That was the next one.  Let's    

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          1   ask about the stormwater first.                         

          2        A.   Are you -- do you mean stormwater rain only   

          3   or with pollutants?                                     

          4        Q.   Let's see.  How about either one?             

          5        A.   Well, they had permit coverage to discharge   

          6   rain only.                                              

          7             With pollutants there are various permits     

          8   that they would be operating at that point.  They would 

          9   be looking at their stormwater permit as well as the    

         10   401.  And the 401 is more restrictive in a couple of    

         11   areas.                                                  

         12             But the stormwater permit requires that       

         13   stormwater -- that pollutants be removed to the maximum 

         14   extent practicable using -- for most of the pollutants  

         15   that we are talking about, using best conventional      

         16   technology.                                             

         17        Q.   So you're referring to stormwater that has    

         18   pollutants within it?                                   

         19        A.   Um-hmm.                                       

         20        Q.   Is that a "yes"?                              

         21        A.   Yes, sorry.                                   

         22        Q.   To your knowledge, were stormwaters with      

         23   pollutants mixed in improperly discharged --            

         24        A.   Yes.                                          

         25        Q.   -- in this case?                              

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          1        A.   Yes.                                          

          2        Q.   How about nonstormwater discharges?  Is there 

          3   any allegation with respect to nonstormwater improperly 

          4   discharged into a stormwater conveyance system?         

          5        A.   I am not sure about the conveyance system,    

          6   but the construction dewatering activities that         

          7   happened and the concrete wastes that happened and      

          8   perhaps some of the -- some of the fueling violations   

          9   were violations of the stormwater permit, as well.      

         10        Q.   Okay.  To your knowledge, did -- I'm not sure 

         11   I understood the answer to the question.                

         12        A.   That -- I got a little lost.                  

         13        Q.   That's okay.                                  

         14        A.   Did those occur, is that what you're asking?  

         15        Q.   No.  The question is, to your knowledge, is   

         16   there any specific allegations that nonstormwaters were 

         17   improperly discharged into a stormwater conveyance      

         18   system?                                                 

         19        A.   I would say "yes."                            

         20             Now, this is a tricky question because the -- 

         21   I was thinking at first that the pipe going over the    

         22   river would be part of the conveyance system, perhaps,  

         23   but that was designed not to carry stormwater but to    

         24   carry nonstormwater.  So I'm not sure.                  

         25             There may be a stormwater conveyance on the   

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          1   site that I'm not aware of.  I'm not -- I don't have as 

          2   good a site knowledge as some other people do.          

          3        Q.   With respect to large (B) here on page 6, do  

          4   you have knowledge, based on your understanding of what 

          5   you reviewed in this case, that Caltrans did not        

          6   prohibit nonstormwater discharges into its stormwater   

          7   conveyance system?                                      

          8        A.   I'm not sure.  Well, actually I take that     

          9   back.  I do remember one discharge, nonstormwater, that 

         10   went to a road, and a road and roadside ditches are     

         11   part of the stormwater conveyance systems, so yes.      

         12        Q.   It is your understanding that that water did  

         13   enter a drain inlet or water conveyance system?         

         14        A.   It was discharged to the road, which is part  

         15   of the stormwater conveyance system.                    

         16        Q.   Let's see.  Right above big (B) there's       

         17   paragraph 7, and the term "surface waters" is used      

         18   there, and it is used in other portions of the ACL; is  

         19   that correct?                                           

         20        A.   Yes.                                          

         21        Q.   Is "surface waters" defined in the            

         22   Porter-Cologne Act, to your knowledge?                  

         23        A.   I believe it is not.                          

         24        Q.   How about the NPDES permit?                   

         25        A.   I believe there's an appendix that has        

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          1   definitions.  I'm not sure.  It may be there.           

          2        Q.   In Section 401 Certifications is the term     

          3   "surface waters" defined typically?                     

          4        A.   Typically, it is not, but it is defined in    

          5   our Basin Plan.                                         

          6        Q.   It is defined in the Basin Plan?              

          7        A.   Yes.                                          

          8        Q.   What is the definition, if you're familiar    

          9   with it to testify?                                     

         10        A.   Yes.  Rivers, streams, wetlands.              

         11        Q.   Would that include the bottom of, let's say,  

         12   a riverbed?                                             

         13        A.   Yes.                                          

         14        Q.   So it is rivers, streams, and --              

         15        A.   Wetlands.                                     

         16        Q.   -- wetlands.                                  

         17        A.   That's for inland surface water.  And then on 

         18   the coast you have the ocean.                           

         19        Q.   Okay.  Paragraph 16, which is on page 8, did  

         20   you have any input into that section of the ACL?        

         21        A.   Let me see.  No.  This was taken directly     

         22   from our Basin Plan, so it is pretty much standard      

         23   language.                                               

         24        Q.   Are you familiar with the Basin Plan?         

         25        A.   Occasionally, yes.                            

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          1        Q.  Based on your knowledge of the project and the 

          2   records that you have seen, have you seen any           

          3   indication that any fish were, actually, killed as a    

          4   result of this project?                                 

          5        A.   There was a photo of a dead fish.  It was     

          6   unclear how the fish had died, so I have no direct      

          7   knowledge that project activities resulted in any dead  

          8   fish.                                                   

          9        Q.   The photo of that fish, did that come from    

         10   the Biological Monitoring Report?                       

         11        A.   I believe so.                                 

         12        Q.   Do you have any knowledge that any wildlife   

         13   were killed as a result of this project?                

         14        A.   I don't have any knowledge, no.               

         15        Q.   Do you have any knowledge about any actual    

         16   harm to plant life that resulted from the project?      

         17        A.   Harm or -- well, damage to either wildlife or 

         18   plants could be -- would be inferred by the activity    

         19   that took place in that the TMDL discusses the          

         20   deleterious effects of sediment discharges on fish and  

         21   endangered species for the Eel River.                   

         22             And then there's also -- there's also a lot   

         23   of studies that have been done about the sediment --    

         24   sediment discharge affecting.  I'm not sure about       

         25   plants, although unwanted mucin-type of plant growth,   

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          1   algae, that type of thing, are often linked with excess 

          2   sediment discharges.                                    

          3        Q.   Have you seen any reports or any other        

          4   documentation, photographs, verbal communications, that 

          5   reflect that one or more plants, actually, was harmed   

          6   as a result of project activities?                      

          7        A.   Well, there was a considerable amount of      

          8   logging that was done, so I have seen reports about     

          9   that.                                                   

         10        Q.   Logging in connection with the Confusion Hill 

         11   Bypass Project?                                         

         12        A.   Yes.                                          

         13        Q.   Were there permits for that?                  

         14        A.   I believe that the planned vegetation removal 

         15   was -- I believe that it was accurately described in    

         16   the application, but I'm not sure.  So then the 401 --  

         17   if it was accurately described in the application, the  

         18   401 would have authorized it.                           

         19             I did have a lot of concerns about the timing 

         20   of vegetation removal leading to sediment discharges    

         21   that would not have occurred if the vegetation removal  

         22   had been planned more carefully.                        

         23        Q.   All right.  Are you aware of any actual       

         24   damage to habitat?  And I don't mean presumed damage.   

         25   Actual knowledge that habitat was --                    

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          1        A.   When we look at a photo with sediment         

          2   discharge that is actual damage to a habitat.  There's  

          3   endangered species in the South Fork Eel River, and     

          4   sediment greatly reduces their ability both to breathe  

          5   and feed and move through the habitat.  So that is      

          6   actual damage to the habitat.                           

          7        Q.   Were you just referring to photographs?       

          8        A.   Yes.                                          

          9        Q.   Do you have those with you?                   

         10        A.   No.  They are part of the file, though.       

         11             Also, their ability to reproduce.             

         12        Q.   Were there any studies done after the project 

         13   was over to survey the wildlife habitat?                

         14        A.   Not to my knowledge.  I'm not sure.  That may 

         15   have been a part of either NOAA or DFG's requirements.  

         16        Q.   So you're not aware of any studies that       

         17   compared habitat before the project commenced to        

         18   afterwards; is that correct?                            

         19        A.   Correct.                                      

         20        Q.   To your knowledge, at any time during the     

         21   project, was there any discharge of any substance or    

         22   material in quantities deleterious to fish?             

         23        A.   Yes.                                          

         24        Q.   Describe those?                               

         25        A.   Well, we have -- we have notices of           

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          1   discharge, photographs, discussions in the Biological   

          2   Monitor Reports and the Engineering Diaries.  And as I  

          3   mentioned before, discharges of sediments, discharges   

          4   of dewatering that may have sediment or may have been   

          5   in contact with wet concrete as well as concrete waste, 

          6   those are all deleterious to fish.                      

          7        Q.   What are the quantities that are deleterious  

          8   of the various substances?                              

          9        A.   I can't list a number off the top of my head. 

         10   It is very small amounts and discharges of any of these 

         11   substances were prohibited by the permit.               

         12        Q.   How about do you have knowledge about placing 

         13   or disposal of any substances or materials that could   

         14   be deleterious to fish?                                 

         15        A.   By "placing" do you mean placing in the       

         16   active channel or placing where it may be discharged    

         17   through other activities or rainfall into the active    

         18   channel of waters of the state?                         

         19        Q.   Locations where the materials could pass into 

         20   any stream or water course in the basin.                

         21        A.   There was information discussed in the        

         22   Biological Monitoring Reports and in the Engineering    

         23   Diaries where that was the case, yes.                   

         24        Q.   Paragraph 16 of the ACL, again, it is page 8, 

         25   down on numbers (1) and (3), those cite two portions of 

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          1   the Basin Plan, I take it?                              

          2        A.   Yes.                                          

          3        Q.   What si the difference between the two of     

          4   those in terms of the deleteriousness that is           

          5   mentioned?                                              

          6        A.   Let me read them.                             

          7             So the "difference"?  Do you mean the         

          8   difference in the activities?  They are both prohibited 

          9   under the Basin Plan, but what the difference in the    

         10   activities would be?                                    

         11        Q.   Well, no.  What is the difference between     

         12   paragraph one's usage of the phrase, "in quantities     

         13   deleterious to fish"; and then the second paragraph --  

         14   the paragraph 3, which is the one right below it, "in   

         15   quantities which could be deleterious"?                 

         16        A.   I'm not sure.  I don't know if a difference   

         17   is meant there, if that is a typo.  I'm not sure about  

         18   that extra word.                                        

         19        Q.   Turning to page 9, under "Turbidity."         

         20        A.   Uh-huh, yes.                                  

         21        Q.   There was no evidence in the Confusion Hill   

         22   project that the 20 percent threshold was exceeded; is  

         23   that correct?                                           

         24        A.   I haven't looked through the monitoring data. 

         25   I believe that there may be some that shows that.       

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          1             When some of these discharges were happening, 

          2   though, if you can see a change in turbidity, it is     

          3   going to be greater than 20 percent.  Just when water   

          4   is this clear, it is.                                   

          5             One of the issues with why we don't know      

          6   enough about the turbidity discharges is that the       

          7   turbidity monitoring was not completed as it should     

          8   have been, violating the 401.                           

          9        Q.   Were there any pH tests done during the       

         10   course of the project?                                  

         11        A.   I'm not sure.                                 

         12        Q.   Do you have specific knowledge that the pH    

         13   standard identified on page 9 was violated?             

         14        A.   I don't have knowledge of it being violated,  

         15   no.  I don't know if it was monitored, though, so I     

         16   don't think we can say it wasn't, but I don't have any  

         17   knowledge of that.                                      

         18        Q.   Are surface waters ever defined with relation 

         19   to bankful channels?                                    

         20        A.   Do you mean within the regulatory documents   

         21   that we typically use or other agencies use because     

         22   there may be definitions in the Fish and Game Code that 

         23   I'm not familiar with.                                  

         24        Q.   No.  I'm referring to documents that the      

         25   Board authors.                                          

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          1        A.   That -- that phrase is not used in the        

          2   description of surface waters that I have seen.         

          3   However, the -- any limitation to less than bankful --  

          4   bankful -- the entire bed, bank and channel, there's no 

          5   limitation saying that that entire bed, bank and        

          6   channel are not.  So when you would see river or        

          7   stream, a reasonable person would conclude that that    

          8   meant bed, bank and channel -- the entire bankful       

          9   portion of the surface water.                           

         10             I'm sorry, I don't know if this is not        

         11   allowed, but can I take a break?                        

         12             MS. ZAZZERON:  Absolutely.                    

         13                          (Recess.)                        

         14   BY MS. ZAZZERON:                                        

         15        Q.   Based on your answer, is it accurate to say   

         16   that you agree that surface waters can be defined with  

         17   relation to the term "bankful channel"?  Did I say that 

         18   right?  Surface discharge, bankful channel?             

         19        A.   I would normally equate surface waters with   

         20   surface waters of the state, which can be broader than  

         21   what could be considered bankful channels by some       

         22   observers.                                              

         23        Q.   What is your definition of "surface waters of 

         24   the state"?                                             

         25        A.   Well, waters of the state are defined in      

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          1   Porter-Cologne as any surface or groundwaters within    

          2   the boundary of the state.  So I would consider surface 

          3   waters to be any waters of the state that are not       

          4   groundwaters.                                           

          5        Q.   How would you define "groundwater"?           

          6        A.   Water that is found, under almost all         

          7   occasions, underground except in some limited           

          8   situations where groundwater can surface for a brief    

          9   period of time in the year.  Then I would call it       

         10   surface and groundwater.                                

         11        Q.   With the exception of groundwater that is     

         12   also surface water, would groundwater be visible to the 

         13   naked eye?                                              

         14        A.   Generally not without some type of drilling   

         15   excavation, some earth altering activities.  Although,  

         16   recent court decisions have found that --               

         17             MS. MACEDO:  You're getting legal.  Stop.     

         18             THE WITNESS:  I'll stop.                      

         19   BY MS. ZAZZERON:                                        

         20        Q.   When I refer to "Isolated Pool B," do you     

         21   know what I'm referring to?                             

         22        A.   Yes.                                          

         23        Q.   Where was that located in relation to the     

         24   project as a whole?                                     

         25        A.   I'm not sure where it was located.  I know it 

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          1   was located within the gravel bar.                      

          2        Q.   Are you aware that one of the Board's charges 

          3   involves Isolated Pool B and its location as being less 

          4   than 100 feet from the live stream channel; is that     

          5   familiar to you?                                        

          6        A.   Yes.                                          

          7        Q.   That location from a live stream channel,     

          8   where would that measurement be taken?  So you're       

          9   talking about 100 feet from which point to which point? 

         10        A.   Um-hmm.  I was not involved in the            

         11   development of this as a presumed Best Management       

         12   Practice to avoid turbidity discharges in the river.    

         13             Since I wasn't involved in any of the         

         14   meetings or discussions of this issue, I would imagine  

         15   that it would be measured from the edge of the live     

         16   channel to the -- you know, 100 feet back to that bank  

         17   and then the other -- the other edge of the live        

         18   channel 100 feet back on that bank.                     

         19        Q.   So the edge of the live channel is that       

         20   where, let's say, the river water is touching earth at  

         21   that point where those two are meeting; is that         

         22   correct?                                                

         23        A.   Yeah.  The live channel is where -- is where  

         24   the current flow of the river is at that period of      

         25   time.                                                   

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          1        Q.   Okay.  So that point may not be the same in   

          2   the middle of July as it is in, let's say, November; is 

          3   that correct?                                           

          4        A.   Correct.                                      

          5        Q.   Is the gravel bar considered waters of the    

          6   state?                                                  

          7        A.   Yes.                                          

          8        Q.   Where was the isolated Pool B located, if you 

          9   know, in relation to the live stream channel?           

         10        A.   I'm not sure.  From the things that I have    

         11   read, it was about 70 feet.                             

         12        Q.   The point 30 feet away from where it really   

         13   was located, do you have knowledge, one way or another, 

         14   is that location also in the gravel bar, the 100 foot   

         15   distance?                                               

         16        A.   I'm not sure.                                 

         17        Q.   Do you have knowledge or an opinion one way   

         18   or another whether isolated Pool B was a BMP?  Too many 

         19   letters here.                                           

         20        A.   I think that it may have worked as a Best     

         21   Management Practice if it had -- I'm sorry, isolated    

         22   Pool B.  I was actually thinking about -- no, not for   

         23   isolated Pool B.  For a dewatering basin that was set   

         24   back a good amount and was accepting the right type of  

         25   discharged water, potentially, it could be a Best       

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          1   Management Practice.                                    

          2        Q.   To your knowledge was there such a dewatering 

          3   basin at the Confusion Hill project?                    

          4        A.   I don't believe that any of the dewatering    

          5   basins that were used would be termed Best Management   

          6   Practices.                                              

          7        Q.   My question was, were there dewatering basins 

          8   used at all at the Confusion Hill site?                 

          9        A.   I believe so.                                 

         10        Q.   What do you base your statement that none of  

         11   the dewatering basins were BMPs?  What do you base that 

         12   on?                                                     

         13        A.   Well, a Best Management Practice would work,  

         14   and we wouldn't be seeing the turbidity movement from   

         15   using the dewatering basins if they had been a Best     

         16   Management Practice.                                    

         17        Q.   Is the goal of Best Management Practices to   

         18   completely eliminate discharges?                        

         19        A.   The goal is to eliminate discharges of        

         20   pollutants.                                             

         21        Q.   Is the goal, generally, also to reduce?       

         22        A.   Yes, to the maximum extent practicable.       

         23        Q.   To your knowledge has the Water Board ever    

         24   allowed sedimentation basins to be within 100 feet of a 

         25   live stream channel?                                    

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          1        A.   I don't know.                                 

          2        Q.   Is that 100 foot distance, if you know, a     

          3   measurement derived from Water Board guidelines?        

          4        A.   No.  It was a proposal made by Caltrans that  

          5   they thought that would be protective of water quality  

          6   if it was 100 feet back.                                

          7             We agreed, although, even if it had been 100  

          8   feet back and we were seeing these turbidity            

          9   discharges, we -- if we were informed of them, as we    

         10   should be, we would have made Caltrans improve the BMPs 

         11   because it wasn't operating as a Best Management        

         12   Practice.                                               

         13             Even if it was operating the same way 100     

         14   feet back, that wouldn't be adequate, and then we would 

         15   then say, "This was the proposal that we agreed to, but 

         16   if it was found not to be working, would make further   

         17   requirements."                                          

         18        Q.   The turbidity discharges that you're          

         19   referring to, those were to the live stream channel, I  

         20   believe?                                                

         21        A.   I believe so, yes, from the photos that I've  

         22   seen.                                                   

         23        Q.   Is it your understanding that those           

         24   discharges would not have occurred if isolated Pool B   

         25   was located further away than 70 feet?                  

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          1        A.   I'm not sure if they would have occurred      

          2   either way.  They were not allowable, so if they had    

          3   occurred, if the pool had been placed, as it should     

          4   have been, 100 feet back, we still would have said that 

          5   is not adequate.  You have to either slow the flow, use 

          6   filter fabric.                                          

          7             We would have -- we would have required       

          8   additional requirements to make sure that what was      

          9   occurring, the turbidity discharges, would no longer be 

         10   occurring.                                              

         11        Q.   You earlier testified that you were not sure  

         12   where isolated Pool B was located in relation to the    

         13   project as a whole.  However, do you have knowledge as  

         14   to whether locating isolated Pool B 100 feet from the   

         15   live channel was physically feasible?                   

         16        A.   I don't know.  However, it was proposed.  If  

         17   it wasn't feasible, then that was providing us with     

         18   false information in the application which is not       

         19   legal.                                                  

         20        Q.   You testified earlier that, during the course 

         21   of the project, nonstormwater may have been, or was,    

         22   conveyed by a roadway into a storm conveyance system;   

         23   is that correct?                                        

         24        A.   Yes.                                          

         25        Q.   Was that roadway paved or not paved?          

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          1        A.   I don't know.  I know that there was an       

          2   unpaved road on the site and there were paved portions  

          3   of the road on the site as well.                        

          4        Q.   Isn't it true that roads can be stormwater    

          5   conveyance systems if they are paved?                   

          6        A.   Yes.                                          

          7        Q.   Can they ever be such conveyance systems if   

          8   they are not paved?                                     

          9        A.   This is a difficult answer because it comes   

         10   down to what is regulated and what isn't as a point     

         11   source or a nonpoint source.  So sometimes it can be -- 

         12   a stormwater conveyance physically that people can      

         13   observe, but it might not be regulated as a stormwater  

         14   conveyance system.                                      

         15             Sorry if that's confusing.                    

         16        Q.   So which is it with respect to the road that  

         17   you referred to earlier at Confusion Hill?              

         18        A.   The Caltrans stormwater permit requires -- I  

         19   mean, identifies regulated stormwater from their        

         20   facilities, from their roadways, from their             

         21   rights-of-way.  So I believe, in that case, it would be 

         22   a part of the stormwater conveyance system for          

         23   Caltrans.                                               

         24        Q.   Has the Board ever allowed water that has     

         25   been in contact -- the phrase "contact water," do you   

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          1   understand what I mean by that?                         

          2        A.   Yes.  Are you talking about concrete or       

          3   cement concrete?                                        

          4        Q.   Yes.  Has the Board ever, not just in the     

          5   context of Confusion Hill but the North Coast Board     

          6   that you're familiar with, ever allowed the use of      

          7   contact water for dust control?                         

          8        A.   Yes.                                          

          9        Q.   Why is that?                                  

         10             MS. MACEDO:  Objection.  Calls for            

         11   speculation.  You can answer.                           

         12             MS. ZAZZERON:  You can still answer if you    

         13   could.                                                  

         14             THE WITNESS:  Yes.  Why did we allow it, or   

         15   why did -- why is it protective of water quality?       

         16   BY MS. ZAZZERON:                                        

         17        Q.   Has it been allowed in, let's say, areas that 

         18   you would consider waters of the state?                 

         19        A.   No.  I believe that it may have, after        

         20   filtration and treatment, been used for dust control    

         21   outside of waters of the state under some               

         22   circumstances, yes.                                     

         23        Q.   But not within waters of the state?           

         24        A.   No, not to my knowledge.                      

         25        Q.   And why is that, if you know?                 

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          1        A.   It would be a discharge of waste to waters of 

          2   the state, and we try to -- even if we permit a limited 

          3   discharge of waste to waters of the state in a permit,  

          4   we try to limit the waste discharged.  And I think that 

          5   that, generally, would be an unnecessary waste to       

          6   discharge.                                              

          7        Q.   Are you familiar with the festival Reggae     

          8   Rising?                                                 

          9        A.   Yes.                                          

         10        Q.   Have you ever attended?                       

         11        A.   No.                                           

         12        Q.   Does the Board issue permits for that event?  

         13        A.   We do.                                        

         14        Q.   What type of permit or permits?               

         15        A.   Waste discharge requirements.  And I haven't  

         16   worked on it, so I'm not sure what wastes are           

         17   permitted.                                              

         18        Q.   Who from the Board has worked with respect to 

         19   that festival on waste discharge requirements?          

         20        A.   Brianna Dresher, who, until recently, was an  

         21   intern in our office; Lisa Bernard, who is in my unit,  

         22   works on NPDES permits and other types of waste         

         23   discharge requirements; and John Short, who is a senior 

         24   engineer.                                               

         25        Q.   Any other Water Board permits that you're     

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          1   aware of with respect to the festival?                  

          2        A.   Not that I'm aware of.                        

          3        Q.   And to your knowledge is the waste discharge  

          4   requirement issued every year, or is it sort of a       

          5   standing thing that covers all the festivals?           

          6        A.   I'm not sure.  There's -- recently we heard   

          7   that there are several festivals, and we are not sure   

          8   how to permit them because we don't know how many there 

          9   are going to be and where they are going to be.         

         10             To my understanding, we issued waste          

         11   discharge requirements several years in a row, and I'm  

         12   not sure if -- how many festivals were covered in each  

         13   permit issuance.                                        

         14        Q.   Who is the permittee for the Reggae Rising?   

         15        A.   I don't know.                                 

         16        Q.   Have there ever been any enforcement          

         17   proceedings as a result of the Reggae Rising festival?  

         18        A.   I believe so, but I'm not sure.               

         19        Q.   Is it your understanding that --              

         20        A.   Can I add something to my answer?  I just     

         21   remembered something.                                   

         22        Q.   Sure.                                         

         23        A.   I believe one year we actually didn't give    

         24   them a permit at all because of some concerns that we   

         25   had.  So I don't know -- I don't know if that would be  

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          1   enforcement of a permit.  That would be more like       

          2   withholding a permit because of water quality issues    

          3   not being resolved.                                     

          4        Q.   What year was that that the permit was        

          5   withheld, if you know?                                  

          6        A.   Within the last five years.                   

          7        Q.   Were you the drafter of the November 27th,    

          8   2006 NOV?                                               

          9        A.   Yes, I was.                                   

         10        Q.   Did you include all violations that you were  

         11   contemplating putting in there?                         

         12        A.   From the information we received it wasn't    

         13   clear how many violations were occurring, so I did the  

         14   best job I could to include what I thought were         

         15   violations.                                             

         16             To remedy the fact that we had such limited   

         17   information I also did a 13267 order which required a   

         18   submittal of a lot of documents because we were         

         19   concerned that we did not have enough information.      

         20        Q.   All right.  Okay.  Well, I'm going to go over 

         21   my notes, but I'm going punt to Mr. Hungerford for now. 

         22             MR. HUNGERFORD:  And I don't have that many   

         23   questions, but I'll ask you a few.                      

         24                         EXAMINATION                       

         25             MR. HUNGERFORD:  My name is Sean Hungerford,  

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          1   and I represent MCM.  I just have a couple of           

          2   follow-ups to the testimony that you have already       

          3   given.                                                  

          4   BY MR. HUNGERFORD:                                      

          5        Q.   Earlier on you said that you had a meeting    

          6   with the Department of Fish and Game, and they provided 

          7   you, or showed you, a number of photographs; is that    

          8   right?                                                  

          9        A.   Yes.                                          

         10        Q.   Did they, actually, give you photographs or   

         11   just show them to you?                                  

         12        A.   They gave them.                               

         13        Q.   This was Corrine at this point?               

         14        A.   Yes.                                          

         15        Q.   Do you know if those photographs are in the   

         16   large group of photographs that have been produced in   

         17   connection with this ACL Complaint?                     

         18        A.   Yes.  In fact, they are attached to the       

         19   Notice of Violation that I wrote.                       

         20        Q.   And so all of the photographs that you were   

         21   provided by Fish and Game are attached to that?         

         22        A.   I believe so.  It has been awhile, but I      

         23   think so.                                               

         24        Q.   Okay.  You described an inspection, an        

         25   unannounced inspection in January of 1998, correct?     

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          1        A.   2008?                                         

          2        Q.   Sorry, 2008.  Was that the only inspection    

          3   that you made of the Confusion Hill project?            

          4        A.   Yes.                                          

          5        Q.   You, also, explained that you attended        

          6   meetings with Caltrans and MCM discussing the ACL.  You 

          7   were talking about the prior ACL, correct?              

          8        A.   Actually, I meant the ACL that we are         

          9   discussing today.                                       

         10        Q.   Well, let me ask that in a little more        

         11   detail.                                                 

         12             When did these meetings take place with       

         13   Caltrans and MCM where you discussed this ACL?          

         14        A.   I can't remember if there was one or two with 

         15   Caltrans and MCM.  I think there may have been two.     

         16   Cris Carrigan may have been our attorney for one, and   

         17   then I think, for the second one, I think Cris and      

         18   Julie were there.                                       

         19             I can't remember the dates.  And I believe    

         20   you were there, too, Sean, and Ardine.                  

         21        Q.   So you're talking about the meetings that we  

         22   had that I was present at?                              

         23        A.   Yes.                                          

         24             MR. HUNGERFORD: Okay.  Thank you.  I have no  

         25   further questions.                                      

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          1             MS. ZAZZERON:  Okay.  I'm just going to       

          2   review Exhibit A for a moment.                          

          3             All right.  I think that's it.  Thank you.    

          4   Off the record.                                         

          5                (Whereupon, the deposition was             

          6                   concluded at 12:05 p.m.)                

          7                                                           

          8                                                           

          9                                                           

         10                                                           

         11                                                           

         12                                                           

         13                                                           

         14                                                           

         15                                                           

         16                                                           

         17                                                           

         18                                                           

         19                                                           

         20                                                           

         21                                                           

         22                                                           

         23                                                           

         24                                                           

         25                                                           

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          1                    CERTIFICATE OF WITNESS                 

          2           I, MONA DOUGHERTY, hereby declare under oath    

          3   that I have read the foregoing testimony recorded on    

          4   pages 5 to 53, inclusive, and that the same is a true   

          5   and correct transcript of my said testimony, except as  

          6   I 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                              MONA DOUGHERTY               

         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:  MONA DOUGHERTY,    

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

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

          8   cause; that said deposition was taken at the time and   

          9   place therein stated in my presence; that the testimony 

         10   of said witness was recorded by me stenographically,    

         11   and 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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