STATE WATER RESOURCES CONTROL BOARD PUBLIC HEARING 1998 BAY-DELTA WATER RIGHTS HEARING HELD AT 901 P STREET SACRAMENTO, CALIFORNIA TUESDAY, JANUARY 12, 1999 9:00 A.M. Reported by: MARY GALLAGHER, CSR #10749 CAPITOL REPORTERS (916) 923-5447 1 APPEARANCES ---oOo--- 2 3 BOARD MEMBERS: 4 JAMES STUBCHAER, CO-HEARING OFFICER JOHN W. BROWN, CO-HEARING OFFICER 5 MARC DEL PIERO MARY JANE FORSTER 6 7 STAFF MEMBERS: 8 THOMAS HOWARD - Supervising Engineer VICTORIA A. WHITNEY - Senior Engineer 9 10 COUNSEL: 11 WILLIAM R. ATTWATER - Chief Counsel WALTER PETTIT - Executive Director 12 BARBARA LEIDIGH - Senior Staff Counsel 13 ---oOo--- 14 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 8303 1 REPRESENTATIVES 2 PRINCETON CODORA GLENN IRRIGATION DISTRICT, et al. 3 FROST, DRUP & ATLAS 4 134 West Sycamore STreet Willows, California 95988 5 BY: J. MARK ATLAS, ESQ. 6 JOINT WATER DISTRICTS: 7 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 8 Oroville, California 95965 BY: WILLIAM H. BABER, III, ESQ. 9 CALIFORNIA SPORTFISHING PROTECTION ALLIANCE: 10 ROBERT J. BAIOCCHI 11 P.O. Box 357 Quincy, California 95971 12 BELLA VISTA WATER DISTRICT: 13 BRUCE L. BELTON, ESQ. 14 2525 Park Marina Drive, Suite 102 Redding, California 96001 15 WESTLANDS WATER DISTRICT: 16 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 17 400 Capitol Mall, 27th Floor Sacramento, California 95814 18 BY: THOMAS W. BIRMINGHAM, ESQ. AMELIA MINABERRIGARAI, ESQ. 19 THE BAY INSTITUTE OF SAN FRANCISCO: 20 GRAY BOBKER 21 55 Shaver Street, Suite 330 San Rafael, California 94901 22 CITY OF ANTIOCH, et al.: 23 FREDERICK BOLD, JR., ESQ. 24 1201 California Street, Suite 1303 San Francisco, California 94109 25 CAPITOL REPORTERS (916) 923-5447 8304 1 2 REPRESENTATIVES 3 LEAGUE OF WOMEN VOTERS: 4 ROBERTA BORGONOVO 2480 Union Street 5 San Francisco, California 94123 6 UNITED STATES DEPARTMENT OF THE INTERIOR: 7 OFFICE OF THE SOLICITOR 2800 Cottage Way, Roon E1712 8 Sacramento, California 95825 BY: ALF W. BRANDT, ESQ. 9 CALIFORNIA URBAN WATER AGENCIES: 10 BYRON M. BUCK 11 455 Capitol Mall, Suite 705 Sacramento, California 95814 12 RANCHO MURIETA COMMUNITY SERVICES DISTRICT: 13 MCDONOUGH, HOLLAND & ALLEN 14 555 Capitol Mall, 9th Floor Sacramento, California 95814 15 BY: VIRGINIA A. CAHILL, ESQ. 16 CALIFORNIA DEPARTMENT OF FISH AND GAME: 17 OFFICE OF THE ATTORNEY GENERAL 1300 I Street, Suite 1101 18 Sacramento, California 95814 BY: MATTHEW CAMPBELL, ESQ. 19 NATURAL RESOURCES DEFENSE COUNCIL: 20 HAMILTON CANDEE, ESQ. 21 71 Stevenson Street San Francisco, California 94105 22 ARVIN-EDISON WATER STORAGE DISTRICT, et al.: 23 DOOLEY HERR & WILLIAMS 24 3500 West Mineral King Avenue, Suite C Visalia, California 93191 25 BY: DANIEL M. DOOLEY, ESQ. CAPITOL REPORTERS (916) 923-5447 8305 1 2 REPRESENTATIVES 3 SACRAMENTO MUNICIPAL UTILITY DISTRICT: 4 LESLIE A. DUNSWORTH, ESQ. 6201 S Street 5 Sacramento, California 95817 6 SOUTH SAN JOAQUIN IRRIGATION DISTRICT, et al.: 7 BRAY, GEIGER, RUDQUIST & NUSS 311 East Main Street, 4th Floor 8 Stockton, California 95202 BY: STEVEN P. EMRICK, ESQ. 9 EAST BAY MUNICIPAL UTILITY DISTRICT: 10 EBMUD OFFICE OF GENERAL COUNSEL 11 375 Eleventh Street Oakland, California 94623 12 BY: FRED ETHERIDGE, ESQ. 13 GOLDEN GATE AUDUBON SOCIETY: 14 ARTHUR FEINSTEIN 2530 San Pablo Avenue, Suite G 15 Berkeley, California 94702 16 CONAWAY CONSERVANCY GROUP: 17 UREMOVIC & FELGER P.O. Box 5654 18 Fresno, California 93755 BY: WARREN P. FELGER, ESQ. 19 THOMES CREEK WATER ASSOCIATION: 20 THOMES CREEK WATERSHED ASSOCIATION 21 P.O. Box 2365 Flournoy, California 96029 22 BY: LOIS FLYNNE 23 COURT APPOINTED REPS OF WESTLANDS WD AREA 1, et al.: 24 LAW OFFICES OF SMILAND & KHACHIGIAN 601 West Fifth Street, Seventh Floor 25 Los Angeles, California 90075 CAPITOL REPORTERS (916) 923-5447 8306 1 BY: CHRISTOPHER G. FOSTER, ESQ. 2 REPRESENTATIVES 3 CITY AND COUNTY OF SAN FRANCISCO: 4 OFFICE OF THE CITY ATTORNEY 1390 Market Street, Sixth Floor 5 San Francisco, California 94102 BY: DONN W. FURMAN, ESQ. 6 CAMP FAR WEST IRRIGATION DISTRICT, et al.: 7 DANIEL F. GALLERY, ESQ. 8 926 J Street, Suite 505 Sacramento, California 95814 9 BOSTON RANCH COMPANY, et al.: 10 J.B. BOSWELL COMPANY 11 101 West Walnut Street Pasadena, California 91103 12 BY: EDWARD G. GIERMANN 13 SAN JOAQUIN RIVER GROUP AUTHORITY, et al.: 14 GRIFFIN, MASUDA & GODWIN 517 East Olive Street 15 Turlock, California 95381 BY: ARTHUR F. GODWIN, ESQ. 16 NORTHERN CALIFORNIA WATER ASSOCIATION: 17 RICHARD GOLB 18 455 Capitol Mall, Suite 335 Sacramento, California 95814 19 PLACER COUNTY WATER AGENCY, et al.: 20 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 21 400 Capitol Mall, 27th Floor Sacramento, California 95814 22 BY: JANET GOLDSMITH, ESQ. 23 ENVIRONMENTAL DEFENSE FUND: 24 THOMAS J. GRAFF, ESQ. 5655 College Avenue, Suite 304 25 Oakland, California 94618 CAPITOL REPORTERS (916) 923-5447 8307 1 REPRESENTATIVES 2 CALAVERAS COUNTY WATER DISTRICT: 3 SIMON GRANVILLE P.O. Box 846 4 San Andreas, California 95249 5 CHOWCHILLA WATER DISTRICT, et al.: 6 GREEN, GREEN & RIGBY P.O. Box 1019 7 Madera, California 93639 BY: DENSLOW GREEN, ESQ. 8 CALIFORNIA FARM BUREAU FEDERATION: 9 DAVID J. GUY, ESQ. 10 2300 River Plaza Drive Sacramento, California 95833 11 SANTA CLARA VALLEY WATER DISTRICT: 12 MORRISON & FORESTER 13 755 Page Mill Road Palo Alto, California 94303 14 BY: KEVIN T. HAROFF, ESQ. 15 CITY OF SHASTA LAKE: 16 ALAN N. HARVEY P.O. Box 777 17 Shasta Lake, California 96019 18 COUNTY OF STANISLAUS: 19 MICHAEL G. HEATON, ESQ. 926 J Street 20 Sacramento, California 95814 21 GORRILL LAND COMPANY: 22 GORRILL LAND COMPANY P.O. Box 427 23 Durham, California 95938 BY: DON HEFFREN 24 25 CAPITOL REPORTERS (916) 923-5447 8308 1 REPRESENTATIVES 2 SOUTH DELTA WATER AGENCY: 3 JOHN HERRICK, ESQ. 3031 West March Lane, Suite 332 East 4 Stockton, California 95267 5 COUNTY OF GLENN: 6 NORMAN Y. HERRING 525 West Sycamore Street 7 Willows, California 95988 8 REGIONAL COUNCIL OF RURAL COUNTIES: 9 MICHAEL B. JACKSON 1020 Twelfth Street, Suite 400 10 Sacramento, California 95814 11 DEER CREEK WATERSHED CONSERVANCY: 12 JULIE KELLY P.O. Box 307 13 Vina, California 96092 14 DELTA TRIBUTARY AGENCIES COMMITTEE: 15 MODESTO IRRIGATION DISTRICT P.O. Box 4060 16 Modesto, California 95352 BY: BILL KETSCHER 17 SAVE THE SAN FRANCISCO BAY ASSOCIATION: 18 SAVE THE BAY 19 1736 Franklin Street Oakland, California 94612 20 BY: CYNTHIA L. KOEHLER, ESQ. 21 BATTLE CREEK WATERSHED LANDOWNERS: 22 BATTLE CREEK WATERSHED CONSERVANCY P.O. Box 606 23 Manton, California 96059 24 25 CAPITOL REPORTERS (916) 923-5447 8309 1 REPRESENTATIVES 2 BUTTE SINK WATERFOWL ASSOCIATION, et al.: 3 MARTHA H. LENNIHAN, ESQ. 455 Capitol Mall, Suite 300 4 Sacramento, California 95814 5 CITY OF YUBA CITY: 6 WILLIAM P. LEWIS 1201 Civic Center Drive 7 Yuba City, California 95993 8 BROWNS VALLEY IRRIGTAION DISTRICT, et al.: 9 BARTKIEWICZ, KRONICK & SHANAHAN 1011 22nd Street, Suite 100 10 Sacramento, California 95816 BY: ALAN B. LILLY, ESQ. 11 CONTRA COSTA WATER DISTRICT: 12 BOLD, POLISNER, MADDOW, NELSON & JUDSON 13 500 Ygnacio Valley Road, Suite 325 Walnut Creek, California 94596 14 BY: ROBERT B. MADDOW, ESQ. 15 GRASSLAND WATER DISTRICT: 16 DON MARCIOCHI 22759 South Mercey Springs Road 17 Los Banos, California 93635 18 SAN LUIS CANAL COMPANY: 19 FLANAGAN, MASON, ROBBINS & GNASS 3351 North M Street, Suite 100 20 Merced, California 95344 BY: MIICHAEL L. MASON, ESQ. 21 STONY CREEK BUSINESS AND LAND OWNERS COALITION: 22 R.W. MCCOMAS 23 4150 County Road K Orland, California 95963 24 25 CAPITOL REPORTERS (916) 923-5447 8310 1 REPRESENTATIVES 2 TRI-DAM POWER AUTHORITY: 3 TUOLUMNE UTILITIES DISTRICT P.O. Box 3728 4 Sonora, California 95730 BY: TIM MCCULLOUGH 5 DELANO-EARLIMART IRRIGATION DISTRICT, et al.: 6 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 7 P.O. Box 1679 Oroville, California 95965 8 BY: JEFFREY A. MEITH, ESQ. 9 HUMANE FARMING ASSOCIATION: 10 BRADLEY S. MILLER. 1550 California Street, Suite 6 11 San Francisco, California 94109 12 CORDUA IRRIGATION DISTRICT, et al.: 13 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 14 Oroville, California 95965 BY: PAUL R. MINASIAN, ESQ. 15 EL DORADO COUNTY WATER AGENCY: 16 DE CUIR & SOMACH 17 400 Capitol Mall, Suite 1900 Sacramento, California 95814 18 BY: DONALD B. MOONEY, ESQ. 19 GLENN COUNTY FARM BUREAU: 20 STEVE MORA 501 Walker Street 21 Orland, California 95963 22 MODESTO IRRIGATION DISTRICT: 23 JOEL MOSKOWITZ P.O. Box 4060 24 Modesto, California 95352 25 CAPITOL REPORTERS (916) 923-5447 8311 1 REPRESENTATIVES 2 PACIFIC GAS & ELECTRIC: 3 RICHARD H. MOSS, ESQ. P.O. Box 7442 4 San Francisco, California 94120 5 CENTRAL DELTA WATER AGENCY, et al.: 6 NOMELLINI, GRILLI & MCDANIEL P.O. Box 1461 7 Stockton, California 95201 BY: DANTE JOHN NOMELLINI, ESQ. 8 and DANTE JOHN NOMELLINI, JR., ESQ. 9 TULARE LAKE BASIN WATER STORAGE UNIT: 10 MICHAEL NORDSTROM 11 1100 Whitney Avenue Corcoran, California 93212 12 AKIN RANCH, et al.: 13 DOWNEY, BRAND, SEYMOUR & ROHWER 14 555 Capitol Mall, 10th Floor Sacramento, California 95814 15 BY: KEVIN M. O'BRIEN, ESQ. 16 OAKDALE IRRIGATION DISTRICT: 17 O'LAUGHLIN & PARIS 870 Manzanita Court, Suite B 18 Chico, California 95926 BY: TIM O'LAUGHLIN, ESQ. 19 SIERRA CLUB: 20 JENNA OLSEN 21 85 Second Street, 2nd Floor San Francisco, California 94105 22 YOLO COUNTY BOARD OF SUPERVISORS: 23 LYNNEL POLLOCK 24 625 Court Street Woodland, California 95695 25 CAPITOL REPORTERS (916) 923-5447 8312 1 REPRESENTATIVES 2 PATRICK PORGENS & ASSOCIATES: 3 PATRICK PORGENS P.O. Box 60940 4 Sacramento, California 95860 5 BROADVIEW WATER DISTRICT, et al.: 6 DIANE RATHMANN P.O. Box 156 7 Dos Palos, California 93620 8 FRIENDS OF THE RIVER: 9 BETSY REIFSNIDER 128 J Street, 2nd Floor 10 Sacramento, California 95814 11 MERCED IRRIGATION DISTRICT: 12 FLANAGAN, MASON, ROBBINS & GNASS P.O. Box 2067 13 Merced, California 95344 BY: KENNETH M. ROBBINS, ESQ. 14 CENTRAL SAN JOAQUIN WATER CONSERVATION DISTRICT: 15 REID W. ROBERTS, ESQ. 16 311 East Main Street, Suite 202 Stockton, California 95202 17 METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA: 18 JAMES F. ROBERTS 19 P.O. Box 54153 Los Angeles, California 90054 20 SACRAMENTO AREA WATER FORUM: 21 CITY OF SACRAMENTO 22 980 9th Street, 10th Floor Sacramento, California 95814 23 BY: JOSEPH ROBINSON, ESQ. 24 25 CAPITOL REPORTERS (916) 923-5447 8313 1 REPRESENTATIVES 2 TUOLUMNE RIVER PRESERVATION TRUST: 3 NATURAL HERITAGE INSTITUTE 114 Sansome Street, Suite 1200 4 San Francisco, California 94194 BY: RICHARD ROOS-COLLINS, ESQ. 5 CALIFORNIA DEPARTMENT OF WATER RESOURCES: 6 DAVID A. SANDINO, ESQ. 7 P.O. Box 942836 Sacramento, California 94236 8 FRIANT WATER USERS AUTHORITY: 9 GARY W. SAWYERS, ESQ. 10 575 East Alluvial, Suite 101 Fresno, California 93720 11 KERN COUNTY WATER AGENCY: 12 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 13 400 Captiol Mall, 27th Floor Sacramento, California 95814 14 BY: CLIFFORD W. SCHULZ, ESQ. 15 SAN JOAQUIN RIVER EXCHANGE CONTRACTORS: 16 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 17 Oroville, California 95965 BY: MICHAEL V. SEXTON, ESQ. 18 SAN JOAQUIN COUNTY: 19 NEUMILLER & BEARDSLEE 20 P.O. Box 20 Stockton, California 95203 21 BY: THOMAS J. SHEPHARD, SR., ESQ. 22 CITY OF STOCKTON: 23 DE CUIR & SOMACH 400 Capitol Mall, Suite 1900 24 Sacramento, California 95814 BY: PAUL S. SIMMONS, ESQ. 25 REPRESENTATIVES CAPITOL REPORTERS (916) 923-5447 8314 1 ORLAND UNIT WATER USERS' ASSOCIATION: 2 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 3 P.O. Box 1679 Oroville, California 95965 4 BY: M. ANTHONY SOARES, ESQ. 5 GLENN-COLUSA IRRIGATION DISTRICT: 6 DE CUIR & SOMACH 400 Capitol Mall, Suite 1900 7 Sacramento, California 95814 BY: STUART L. SOMACH, ESQ. 8 NORTH SAN JOAQUIN WATER CONSERVATION DISTRICT: 9 JAMES F. SORENSEN CONSULTING CIVIL ENGINEER, INC.: 10 209 South Locust Street Visalia, California 93279 11 BY: JAMES F. SORENSEN 12 PARADISE IRRIGATION DISTRICT: 13 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 14 Oroville, California 95965 BY: WILLIAM H. SPRUANCE, ESQ. 15 COUNTY OF COLUSA: 16 DONALD F. STANTON, ESQ. 17 1213 Market Street Colusa, California 95932 18 COUNTY OF TRINITY: 19 COUNTY OF TRINITY - NATURAL RESOURCES 20 P.O. Box 156 Hayfork, California 96041 21 BY: TOM STOKELY 22 CITY OF REDDING: 23 JEFFERY J. SWANSON, ESQ. 2515 Park Marina Drive, Suite 102 24 Redding, California 96001 25 REPRESENTATIVES CAPITOL REPORTERS (916) 923-5447 8315 1 TULARE IRRIGATION DISTRICT: 2 TEHEMA COUNTY RESOURCE CONSERVATION DISTRICT 3 2 Sutter Street, Suite D Red Bluff, California 96080 4 BY: ERNEST E. WHITE 5 STATE WATER CONTRACTORS: 6 BEST BEST & KREIGER P.O. Box 1028 7 Riverside, California 92502 BY: CHARLES H. WILLARD 8 COUTNY OF TEHEMA, et al.: 9 COUNTY OF TEHEMA BOARD OF SUPERVISORS 10 P.O. Box 250 Red Bluff, California 96080 11 BY: CHARLES H. WILLARD 12 MOUNTAIN COUNTIES WATER RESOURCES ASSOCIATION: 13 CHRISTOPHER D. WILLIAMS P.O. Box 667 14 San Andreas, California 95249 15 JACKSON VALLEY IRRIGATION DISTRICT: 16 HENRY WILLY 6755 Lake Amador Drive 17 Ione, California 95640 18 SOLANO COUNTY WATER AGENCY, et al.: 19 HERUM, CRABTREE, DYER, ZOLEZZI & TERPSTRA 2291 West March Lane, S.B. 100 20 Stockton, California 95207 BY: JEANNE M. ZOLEZZI, ESQ. 21 22 ---oOo--- 23 24 25 CAPITOL REPORTERS (916) 923-5447 8316 1 I N D E X 2 ---oOo--- 3 4 PAGE 5 OPENING OF HEARING 8318 6 AFTERNOON SESSION 8427 7 END OF PROCEEDINGS 8531 8 CROSS-EXAMINATION OF SOUTH DELTA WATER AGENCY: 9 THOMAS BIRMINGHAM 8327 10 11 DIRECT EXAMINATION OF SOUTH DELTA WATER AGENCY: 12 GERALD T. ORLOB 8362 13 CROSS-EXAMINATION OF SOUTH DELTA WATER AGENCY: 14 THOMAS BIRMINGHAM 8378 MICHAEL JACKSON 8385 15 MICHAEL SEXTON 8407 VIRGINIA CAHILL 8455 16 ALF BRANDT 8462 17 ---oOo--- 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 8317 1 TUESDAY, JANUARY 12, 1999, 9:00 A.M. 2 SACRAMENTO, CALIFORNIA 3 ---oOo--- 4 C.O. STUBCHAER: Good morning. 5 MR. BIRMINGHAM: Good morning. 6 C.O. STUBCHAER: I'm glad somebody is listening. 7 I'll call the hearing to order. We're going to continue 8 with the cross-examination of Mr. Hildebrand by Mr. 9 Birmingham. And he will be followed by, in order, 10 Mr. O'Laughlin, Ms. Cahill, Mr. Jackson, Mr. Godwin, 11 Mr. Brandt and Mr. Campbell. 12 And if there's any redirect, after redirect and 13 recross, we will have the presentation of the Central Delta 14 Water Agency, or do you want to put on your other witness 15 next? 16 MR. HERRICK: We have a schedule in discussion. I'm 17 not sure there's an agreeable resolution here. My other 18 witness is here today. I originally wanted to put them on 19 as a panel. I talked to other counsel and suggested that 20 after Mr. Birmingham finishes with Mr. Hildebrand then I 21 put my other witness on and proceed as a panel. 22 Mr. O'Laughlin has a disagreement with that 23 proposal, but we're just trying to work this out whether or 24 not DWR will go on today, whether we have a gap. I'm just 25 kind of putting it out there. CAPITOL REPORTERS (916) 923-5447 8318 1 C.O. STUBCHAER: Yeah, Mr. O'Laughlin. 2 MR. O'LAUGHLIN: Thank you, Mr. -- Chairman 3 Stubchaer. I'm sorry, I keep going between Mister and 4 Chairman. 5 C.O. STUBCHAER: Either works. Even "Jim" is okay, 6 except it doesn't look good in the record. 7 MR. O'LAUGHLIN: Okay. Here's the dilemma; when we 8 left yesterday, my understanding was that we were going to 9 interpose Mr. Hildebrand, because DWR was absent. I would 10 like to get back to the original schedule, though, and get 11 back to DWR. There are certain reasons why I want DWR to 12 go in and make their presentation in this matter. 13 Also, DOI wants DWR to go before so that they can 14 make their opening statement which may be helpful. And 15 then at that point in time, we could come back and finish 16 Mr. Hildebrand and Mr. Orlob. But, otherwise, this 17 haphazard this -- we're jumping all over the place. I'm 18 not prepared to go to Mr. Orlob today. All my material for 19 Mr. Orlob is not in Sacramento, because my understanding 20 was we were going to do Mr. Hildebrand, he was not going to 21 be here this afternoon. 22 I figured that we'd finish the rest of the morning 23 with him and then go to DWR. So I'm not prepared to take 24 Mr. Orlob on today or tomorrow. The other thing is I would 25 like to finish Mr. Hildebrand before doing Mr. Orlob. I CAPITOL REPORTERS (916) 923-5447 8319 1 realize that Mr. Herrick wanted them as a panel, but you 2 know we're going to have a discontinuity between witnesses. 3 So for scheduling purposes I'd like to do Mr. Hildebrand 4 this morning, go back do DWR, get back on schedule. Do DWR 5 do DOI and then come back and finish up with Mr. 6 Hildebrand, Mr. Orlob and then start with, I think, Central 7 Delta Water Agency is next; is that correct, Mr. Nomellini? 8 C.O. STUBCHAER: Mr. Nomellini. 9 MR. NOMELLINI: Yeah. First of all, all this is 10 direct testimony. The written testimony has been 11 submitted. So we all should be prepared to handle all 12 these witnesses. The continuity of the presentation, of 13 course, for South Delta is to have their witnesses 14 together. Central Delta is supportive of the South Delta 15 case and we wanted to follow. 16 I have Mr. Zuckerman here. I got him yesterday; 17 fortunately, got him here today. I'd like to put him on 18 today, because he's not available tomorrow. So what Tim 19 had suggested is not particularly convenient for me and 20 Central Delta. And I would ask that we be able to follow 21 Hildebrand and put Zuckerman on today. 22 MR. O'LAUGHLIN: Well, I can say with little or no 23 doubt if the Chairman gives me the time I need for 24 Mr. Hildebrand, we will not be getting to Central Delta 25 Water Agency today anyway. That's just not going to CAPITOL REPORTERS (916) 923-5447 8320 1 happen. I have probably three to five hours with 2 Mr. Hildebrand alone. 3 MR. BRANDT: I have quite a bit, also. 4 C.O. STUBCHAER: Mr. Brandt. 5 MR. BRANDT: I also have quite a bit. 6 MR. O'LAUGHLIN: So Central Delta Water Agency, as 7 far as I can tell, probably won't go until next week at the 8 earliest. 9 C.O. STUBCHAER: Mr. Herrick, do you have any 10 comments? 11 MR. HERRICK: Yeah, I mean everybody is trying to 12 work this out. Mr. Hildebrand gave up a meeting this 13 afternoon so he could be here all day today, but has a 14 meeting tomorrow afternoon. So I'm just trying to think 15 out loud here. 16 If you want to finish with Mr. Hildebrand this 17 morning, I can ask my witness to come back another day, but 18 I would want to put them on a panel when we start up again 19 with my case. If you want to take DWR to get them out of 20 the way this afternoon or something, that's okay with me, 21 but when I have my witness back I did want a panel. 22 C.O. STUBCHAER: I'm not clear on what you just 23 stated. You want to finish the cross-examination of 24 Mr. Hildebrand before you go to Dr. Orlob, or just -- 25 MR. O'LAUGHLIN: Just do Mr. Hildebrand today until CAPITOL REPORTERS (916) 923-5447 8321 1 12:00, take our lunch. And then when they come back bring 2 them back as a panel. I'm assuming you want Mr. Orlob to 3 present his direct testimony at that time. And anybody who 4 questions thereafter would question them as a panel. 5 That's acceptable to me. 6 MR. HERRICK: That would be -- 7 MR. O'LAUGHLIN: My understanding is, just so we 8 understand, tomorrow Mr. Hildebrand wouldn't be here in the 9 afternoon. So we're only going to have three hours of 10 Hildebrand and Orlob if we come back with that and then we 11 can finish up the following Tuesday. Is that correct? 12 MR. HERRICK: Yeah. 13 C.O. STUBCHAER: Mr. Herrick, you were interrupted a 14 little bit; is that what you were going to say? 15 MR. HERRICK: Yeah, that's agreeable to me. I, you 16 know, am just trying to be flexible here. I would like my 17 witnesses as a panel when we can get to that, but obviously 18 people's schedules are difficult to coordinate. 19 C.O. STUBCHAER: Mr. Sandino, did you have any 20 comments regarding the Department's presentation, the 21 order? 22 MR. SANDINO: No, I don't really. Mr. Russell is not 23 here, but I'm sure he'll be here today. So whenever you 24 want us to go, we're prepared to go today or tomorrow. 25 C.O. STUBCHAER: Anyone else have any comments? CAPITOL REPORTERS (916) 923-5447 8322 1 Mr. Jackson. 2 MR. JACKSON: I'm not going to be here tomorrow 3 afternoon. I do want to cross-examine Mr. Hildebrand and 4 Mr. Orlob. Is there any possibility I could go behind 5 Mr. O'Laughlin? 6 MR. O'LAUGHLIN: I'd be very happy to give you my 7 place, Mr. Jackson, you could step right to the front of 8 line, because I'm going to have an extensive amount of 9 questioning. So if you'd like to take my place this 10 morning, I'd be more than happy to let you go up front. 11 C.O. STUBCHAER: And as long as the parties agree to 12 the change in order, that's fine with me. 13 MR. JACKSON: Now, is Mr. Orlob going to be here 14 today and tomorrow, is that the plan? 15 MR. HERRICK: In the morning. 16 MR. JACKSON: Only in the morning. 17 C.O. STUBCHAER: All right. 18 MR. JACKSON: Well, actually, I can go tomorrow 19 morning, that would be the best time for me. I could get 20 both of them out of way and get on with my business. I've 21 got about 45 minutes for the two of them. 22 C.O. STUBCHAER: Mr. Herrick -- excuse me, I didn't 23 see you leaving. 24 MR. HERRICK: Yes. 25 C.O. STUBCHAER: Would you go over once more when you CAPITOL REPORTERS (916) 923-5447 8323 1 would propose a transition from Mr. Hildebrand to the 2 panel? 3 MR. HERRICK: It's my understanding that we'll 4 continue cross-examination with Mr. Hildebrand through 5 today at noon. Then DWR would put its case on. Department 6 of Interior is going to make an opening statement, if we 7 get to that, whatever else may fill in the gap. Then 8 tomorrow morning I'll start with my panel and we'll get as 9 far as we can before noon. And maybe then somebody else 10 can put their case on in the afternoon and my witnesses 11 will come back the following week. 12 C.O. STUBCHAER: Ms. Leidigh, do you have any 13 comments? It seems awkward to me to submit the 14 cross-examination of Mr. Hildebrand, perhaps, in midstream 15 then go to a panel. But I understand the desirability of 16 having it as a panel. And the reason that we don't have a 17 panel is because we went faster than we expected to 18 yesterday. 19 MR. HERRICK: Certainly, Mr. Chairman. My preference 20 was to put Mr. Orlob on this morning. I'm just trying to 21 work with everybody, and that's my understanding of what's 22 been discussed. 23 C.O. STUBCHAER: All right. Go off the record for a 24 minute. 25 MR. JACKSON: Mr. Chairman, why don't we have CAPITOL REPORTERS (916) 923-5447 8324 1 Mr. Orlob go up there when Mr. Birmingham is finished, put 2 on the direct, some of us shorter people can do the -- can 3 do our examination of the panel and then we're out of your 4 way? 5 MR. O'LAUGHLIN: That's a very good idea. 6 C.O. STUBCHAER: That makes sense to me, but. 7 Mr. O'Laughlin, you said that you weren't prepared. 8 MR. O'LAUGHLIN: I'm not going to do either Orlob 9 or -- sorry, Mr. Hildebrand today. I'll do those -- I'll 10 do those either tomorrow -- at the earliest. 11 C.O. STUBCHAER: Okay. Mr. Sexton? 12 MR. SEXTON: Thank you, Mr. Chairman. The Exchange 13 Contractors did not desire to examine Mr. Hildebrand 14 yesterday, but we do desire to examine Mr. Orlob. 15 C.O. STUBCHAER: All right. 16 MR. SEXTON: So as an addition to the -- 17 C.O. STUBCHAER: All right. Let's do that. Let's 18 finish the cross-examination of Mr. Hildebrand by 19 Mr. Birmingham then we'll hear from Dr. Orlob and then 20 we'll have cross-examination thereafter as a panel. 21 MR. O'LAUGHLIN: Are we going to put DWR on today? 22 C.O. STUBCHAER: We'll just finish South Delta. 23 C.O. BROWN: And Mr. Sexton. 24 C.O. STUBCHAER: Yes. 25 MR. O'LAUGHLIN: Excuse me, Mr. Chairman, the problem CAPITOL REPORTERS (916) 923-5447 8325 1 is that while Mr. Nomellini is correct, we should be 2 prepared, my materials for Orlob are not in Sacramento. My 3 understanding was that we were going to finish 4 Mr. Hildebrand today, that we were going to do DWR this 5 afternoon. 6 I have no problem putting Orlob on, having Orlob 7 do direct, whoever can do his testimony, fine. I want to 8 get back on track so I want DWR back up and DOI to come up, 9 because there's certain things that have to get in as we 10 move forward. Then we can get back on track and we can 11 finish up Alex and Mr. Orlob tomorrow. 12 C.O. STUBCHAER: Can you get your materials delivered 13 this evening if your cross-examination of Dr. Orlob is 14 prompt? 15 MR. O'LAUGHLIN: Yes, absolutely. 16 MR. NOMELLINI: I'll loan you mine. 17 C.O. STUBCHAER: All right. Mr. Birmingham. 18 MR. BIRMINGHAM: May the record reflect, being 19 consistent with my New Year's resolution, I didn't pose one 20 objection yesterday, nor did I participate in this 21 discussion this morning. 22 MEMBER DEL PIERO: You're a decent guy, Tom. 23 // 24 // 25 // CAPITOL REPORTERS (916) 923-5447 8326 1 ---oOo--- 2 CROSS-EXAMINATION OF SOUTH DELTA WATER AGENCY 3 BY WESTLANDS WATER DISTRICT 4 BY THOMAS BIRMINGHAM 5 MR. BIRMINGHAM: Mr. Hildebrand, how are you this 6 morning? 7 MR. HILDEBRAND: Very well. I trust you're doing 8 well, also. 9 MR. BIRMINGHAM: Yes, I am. Mr. Hildebrand, when we 10 concluded yesterday afternoon we were discussing your 11 testimony on Page 9 of South Delta Water Agency Exhibit 51. 12 And in particular that portion of your testimony that 13 states, "If the Bureau cannot budget sufficient amounts of 14 water, amounts for water quality, then the Board should 15 require automatic decreases in exports. It is patently 16 unfair to allow the Bureau to continue exports for benefits 17 of the system when it chooses or fails to meet its permit 18 obligations and responsibilities of the system." 19 Do you recall that testimony? 20 MR. HILDEBRAND: Yes. 21 MR. BIRMINGHAM: And I believe we also had testimony 22 that there is not an instantaneous relationship between a 23 decrease in exports and water quality at Vernalis? 24 MR. HILDEBRAND: There's a very large time delay in 25 the system, yes, so it's not instantaneous even though it CAPITOL REPORTERS (916) 923-5447 8327 1 is direct. 2 MR. BIRMINGHAM: Okay. Now, I'm looking at the map 3 which is in the hearing room and the export pumps are 4 indicated on the map of the Statutory Delta at Clifton 5 Court Forebay for the State Pumps, and at Tracy pumping 6 plant for CVP pumps; is that correct? 7 MR. HILDEBRAND: Correct. 8 MR. BIRMINGHAM: And the point at which Vernalis 9 water quality is measured is on the San Joaquin River 10 immediately below the confluence of the Stanislaus with the 11 San Joaquin; is that correct? 12 MR. HILDEBRAND: That's correct. 13 MR. BIRMINGHAM: And so it's your testimony that it 14 takes some time between a change in export levels at Tracy 15 to have an affect on water quality at Vernalis? 16 MR. HILDEBRAND: That's correct. The problem of 17 buildup over a period of a number of years and then it 18 would likewise decline over a period of a number of years. 19 MR. BIRMINGHAM: And, in fact, in order for export 20 levels to have an affect on water quality at Vernalis, it's 21 going to involve water being exported to the service area 22 of the Central Valley Project on the west side of the San 23 Joaquin Valley and then the discharge of water, drain water 24 into the San Joaquin River that would then flow to 25 Vernalis; is that correct? CAPITOL REPORTERS (916) 923-5447 8328 1 MR. HILDEBRAND: That's correct. Bear in mind, that 2 part of a salt load that is exported down the Delta-Mendota 3 Canal is recycled water which was exported down to that 4 service area and then drained back into the river and then 5 flows back through Old River and Grant Line Canal and back 6 into the pumps and goes back down the merry-go-round. 7 MR. BIRMINGHAM: Now, when I asked you about this 8 yesterday, I believe you testified that your proposal is 9 that when the Bureau fails to meet the water quality 10 standards at Vernalis there would be an "automatic and 11 immediate decrease in the level of exports at the Tracy 12 pumping plant"? 13 MR. HILDEBRAND: Well, I'll give them some phase in 14 time, but that's the general gist of it. 15 MR. BIRMINGHAM: And that when the water quality 16 standards are thereafter met, the Bureau could ramp back up 17 to the otherwise permitted levels of export? 18 MR. HILDEBRAND: Providing they were committed to 19 meeting it at all times, it wasn't just a temporary thing. 20 You can't cut this thing off and on, as we just discussed 21 the time lag in the system. So if they need it one month 22 it doesn't mean you can go back up to full in the next 23 month or even from one year to the next. In a wet year we 24 do not have a problem. That doesn't mean, then, that in 25 the following dry year that they could go ahead and export. CAPITOL REPORTERS (916) 923-5447 8329 1 MR. BIRMINGHAM: So these are further clarifications 2 on the comprehensive plan that you've suggested to the 3 State Board? 4 MR. HILDEBRAND: I guess you could call them 5 complications or -- 6 MR. BIRMINGHAM: But the term I used -- 7 MR. HILDEBRAND: Just how they would go about 8 enforcing this would be up to the Board. I would assume 9 that if the Board would provide some kind of time delay, 10 would provide some measure of whether there was continuing 11 compliance versus only instantaneous compliance, that sort 12 of thing, but it's not my position to tell the Board just 13 how to do that. 14 MR. BIRMINGHAM: Now, I'd like to explore this a 15 little further with you, Mr. Hildebrand. Yesterday at the 16 end of my examination of you I asked a question about 17 Article 10, Section 2 and your lawyer interposed an 18 objection I guess it would have been that the question was 19 ambiguous because he said, "Which Article 10, Section 2?" 20 Are you aware of any Article 10, Section 2, Mr. Hildebrand? 21 MR. HILDEBRAND: I'm not aware -- I don't remember 22 those things by those nice legal numbers. 23 MR. BIRMINGHAM: Well, you're familiar with the 24 provisions of the California Constitution that states that 25 the waters of the State will be put to the greatest CAPITOL REPORTERS (916) 923-5447 8330 1 beneficial use possible? 2 MR. HILDEBRAND: In a reasonable manner, yes. 3 MR. BIRMINGHAM: Now -- 4 MR. HILDEBRAND: And part of our contention is that 5 it's not reasonable to provide the fish flows with waters 6 that have to be taken away from people when it is more 7 reasonable to circulate water and make multiple use of it 8 and thereby meet the purpose. 9 MR. BIRMINGHAM: Well, turning -- we'll get back to 10 that in a few moments, but turning specifically to your 11 knowledge to your proposal that there be an automatic 12 decrease in the export of water, that could actually result 13 in the waste of water, couldn't it, Mr. Hildebrand? 14 MR. HILDEBRAND: I don't see why. 15 MR. BIRMINGHAM: Well, let's see if we can explore a 16 scenario under which it might be waste. Let's assume, 17 hypothetically, that year one is a dry year and for a 18 period of time the Bureau of Reclamation, through releases 19 out of New Melones, can't maintain water quality standards 20 at Vernalis. Do you understand that assumption? 21 MR. HILDEBRAND: Well, you're saying that they can't. 22 It's questionable whether they can or they won't. 23 MR. BIRMINGHAM: Well, I'm asking you to assume that 24 they cannot. I believe you testified that the yield of New 25 Melones may be inadequate in some years to meet the water CAPITOL REPORTERS (916) 923-5447 8331 1 quality standards at Vernalis. 2 MR. HILDEBRAND: It depends on what other uses are 3 made of water, whether it's shifted over to fishery uses, 4 or whether it's used for delivery of contract water in 5 excess of the underlying water rights and issues of that 6 sort. 7 MR. BIRMINGHAM: But you would agree that in some 8 circumstances, Mr. Hildebrand, the Bureau of Reclamation 9 has inadequate water at New Melones to meet the water 10 quality standards at Vernalis? 11 MR. HILDEBRAND: That was the case during, I think it 12 was during, about 1991 or thereabouts where the water at 13 New Melones got down to something like 50 or 80,000 14 acre-feet. 15 MR. BIRMINGHAM: So in some circumstances it's fair 16 to assume that the Bureau is unable to meet the water 17 quality standards at Vernalis through releases at New 18 Melones? 19 MR. HILDEBRAND: Under very rare situations. 20 MR. BIRMINGHAM: All right. Well, I'm asking you to 21 assume for purposes of our discussion that the Bureau is 22 unable to meet the water quality standards at Vernalis. Is 23 that a fair assumption? 24 MR. HILDEBRAND: On rare occasions. 25 MR. BIRMINGHAM: Then I'm going to ask you to assume CAPITOL REPORTERS (916) 923-5447 8332 1 that as a result of the condition that you've proposed, 2 exports at Tracy have been reduced because the Bureau is 3 unable to meet water quality standards at Vernalis. That 4 is what you're proposing, isn't it? 5 MR. HILDEBRAND: I'm not proposing that this be done 6 on a single-year basis, but that it be done on a multi-year 7 basis. 8 MR. BIRMINGHAM: Well, Mr. Hildebrand, I'm having 9 trouble, I suspect the Board may be, too, in light of some 10 of the questions that were asked of you by Chairman 11 Stubchaer yesterday understanding this proposal. The 12 language that you use in your testimony is "automatic." 13 And yesterday when we were talking, I believe, you said 14 that "It would be an automatic instantaneous decrease." 15 Now, are you changing that proposal this morning? 16 MR. HILDEBRAND: I don't think I said it would be 17 instantaneous. 18 MR. BIRMINGHAM: Well, just so I understand it, would 19 you, please, explain in detail what you're proposing. 20 MR. HILDEBRAND: We are proposing that if the Bureau 21 does not choose to meet the water quality requirement, by 22 whatever means available to it, that they no longer be 23 permitted to make the exports which cause that problem in 24 the first place. 25 Now, just how that might be implemented I think CAPITOL REPORTERS (916) 923-5447 8333 1 would be up to the Board, whether they gave them some time 2 to comply, whether they have enough water in the dam to do 3 it in a given year depends on whether they put out a lot of 4 water out of the dam for other purposes in other years that 5 they didn't have to do, things of that sort. So you 6 can't -- I don't think we should try to sit here and tell 7 the Board exactly how they should implement that, but the 8 principle I think is clear. 9 MR. BIRMINGHAM: So let's go back to my hypothetical. 10 Now, you said that "If the Bureau does not choose to meet 11 water quality," which is different than what's stated in 12 your testimony, because in your testimony you say, "If the 13 Bureau cannot budget sufficient water -- " 14 MR. HILDEBRAND: Did I say cannot or does not? 15 MR. BIRMINGHAM: Cannot. You say "cannot." 16 MR. HILDEBRAND: Will you show me the paragraph? 17 MR. BIRMINGHAM: Yes. On Page 9 the first full 18 paragraph after the quote, midway through the paragraph it 19 says, "If the Bureau cannot budget sufficient amounts of 20 water for water quality." 21 Isn't that what the testimony says? 22 MR. HILDEBRAND: You're right that's what it says, 23 but that was not the intent. It was the question of 24 whether they did not. 25 MR. BIRMINGHAM: So now you're suggesting that if CAPITOL REPORTERS (916) 923-5447 8334 1 they choose not to meet the water quality standards then it 2 would be appropriate to reduce exports? 3 MR. HILDEBRAND: Yes. 4 MR. BIRMINGHAM: So we could -- on South Delta Water 5 Agency Exhibit 51, Page 9, you would agree that we should 6 strike the word "cannot" after "Bureau" in the sentence 7 that says, "If the Bureau cannot," and insert the words 8 "chooses not to"? 9 MR. HILDEBRAND: Yeah, I think either might apply, 10 but when they cannot it's a question still whether that was 11 really a choice by using up the water in the dam in the 12 prior year for releases of other purposes. So there's -- 13 it's not entirely clear in a given situation whether they 14 could not have budgeted it, or whether they just did not 15 budget it. 16 MR. BIRMINGHAM: Well, let's go back to 1991. In 17 1991 you said that there was approximately 50,000 acre-feet 18 of water in storage in New Melones; is that correct? 19 MR. HILDEBRAND: I think on that order, yes. 20 MR. BIRMINGHAM: Now, you would agree with me, 21 wouldn't you, Mr. Hildebrand, that 1991 was a severe 22 drought year? 23 MR. HILDEBRAND: Oh, definitely. 24 MR. BIRMINGHAM: And it was a severe drought year 25 following a number of other severe years? CAPITOL REPORTERS (916) 923-5447 8335 1 MR. HILDEBRAND: That's right. 2 MR. BIRMINGHAM: So in 1991 the fact that the Bureau 3 had only 50,000 acre-feet of water in New Melones really 4 was not a matter of choice by the Bureau of Reclamation, it 5 was simply a matter of hydraulic reality, hydrology? 6 MR. HILDEBRAND: That is true if you look at the New 7 Melones in isolation. However, it was a matter of choice 8 by the Bureau that they didn't adopt other measures for 9 reducing the burden on New Melones to meet the water 10 quality. And, furthermore, under those situations when the 11 flow is very low it doesn't take very much water to be 12 budgeted for that purpose, or very much done to control 13 drainage. 14 The big burden on New Melones to maintain water 15 quality does not occur in these years of very low flow, it 16 occurs in years of below normal, for example, flow, 17 particularly if those years follow a dry year. 18 MR. BIRMINGHAM: Well, let's examine that statement, 19 Mr. Hildebrand, the statement you made after you responded 20 to my question and we'll go back to my line of questioning 21 in a few moments. 22 But you said that even in 1991 the Bureau could 23 have chosen some other means of meeting water quality 24 standards at Vernalis; is that correct? 25 MR. HILDEBRAND: Probably not instantaneously, but CAPITOL REPORTERS (916) 923-5447 8336 1 had they planned for it, yes. 2 MR. BIRMINGHAM: Now, yesterday in light of some of 3 the testimony I would have concluded that you think that 4 the Bureau of Reclamation should be required to operate the 5 Central Valley Project in a manner that is consistent with 6 the terms and conditions of its permits? 7 MR. HILDEBRAND: Yes. 8 MR. BIRMINGHAM: Now, Mr. Hildebrand, are you 9 familiar with the permits that the Bureau holds to redivert 10 or divert water at the Tracy pumping plant? 11 MR. HILDEBRAND: Not in detail, but in general. 12 MR. BIRMINGHAM: Are you familiar with the permits 13 that the Bureau holds to store water in San Luis Reservoir? 14 MR. HILDEBRAND: Not in detail. 15 MR. BIRMINGHAM: Well, are you aware, Mr. Hildebrand, 16 that the permits that the Bureau holds to divert water at 17 the Tracy pumping plant currently does not authorize the 18 use of that water to maintain water quality? 19 MR. HILDEBRAND: That may be true of those permits, 20 but in the overall picture of the permits for the Bureau 21 they do have the obligation to maintain quality at 22 Vernalis. And whether they choose to meet it in one way or 23 another is advocated by the permits. 24 MR. BIRMINGHAM: Well, in fact, isn't it correct, 25 Mr. Hildebrand, that in 1991 the only permits that were CAPITOL REPORTERS (916) 923-5447 8337 1 held by the Bureau of Reclamation that authorized the use 2 of appropriated water for water quality on the San Joaquin 3 River were the permits held to appropriate water at New 4 Melones? 5 MR. HILDEBRAND: No, I don't think that's right, 6 because all of these appropriated permits are subject to 7 the downstream water rights. And meeting water quality for 8 downstream parties is a part of that water right. 9 MR. BIRMINGHAM: Now, Mr. Hildebrand, maybe your 10 understanding of downstream is different than mine, but are 11 the South Delta water agencies downstream of the Tracy 12 pumping plant that take water at Tracy and send it south? 13 MR. HILDEBRAND: It's downstream of the return flows 14 from that supply, yes. 15 MR. BIRMINGHAM: But you would agree with me, 16 Mr. Hildebrand, that the South Delta Water Agency water 17 users are not downstream of the Tracy pumping plant? 18 MR. HILDEBRAND: As I say, they are downstream of the 19 return flows from that delivery. Therefore, that delivery 20 does affect the water rights of those parties in the South 21 Delta. 22 MR. BIRMINGHAM: Now, Mr. Hildebrand, in your written 23 testimony, South Delta Water Agency Exhibit 51, you 24 indicate that, "It may be necessary for the State Water 25 Resources Control Board to amend the Bureau's permits to CAPITOL REPORTERS (916) 923-5447 8338 1 appropriate water at Tracy and to store water in San Luis 2 to add water for water quality control as a permitted use 3 of that water." Isn't that correct? 4 MR. HILDEBRAND: It seems like a logical thing to do 5 for the reasons I just discussed. 6 MR. BIRMINGHAM: And the reason that you said that is 7 because the permits currently don't authorize the use of 8 water for those purposes? 9 MR. HILDEBRAND: Not because they don't authorize it, 10 because they don't require it. 11 MR. BIRMINGHAM: I'd like to go back to my 12 hypothetical, Mr. Hildebrand, and we're in 1991. And the 13 Bureau of Reclamation is unable to keep enough water in New 14 Melones Reservoir to maintain water quality standards at 15 Vernalis and under the proposal that you've made that the 16 State Water Resources Control Board will have ordered that 17 the Bureau reduce exports at Tracy. 18 Do you understand those assumptions? 19 MR. HILDEBRAND: I understand the assumption -- 20 MR. BIRMINGHAM: That's the answer to my question. 21 Thank you. 22 MR. HILDEBRAND: -- yes. 23 MR. BIRMINGHAM: Now, I'd like you also to assume 24 that the following year is a wet year. So 1992 will be a 25 wet year for purposes of our discussion. Do you understand CAPITOL REPORTERS (916) 923-5447 8339 1 that assumption? 2 MR. HILDEBRAND: Yes. 3 MR. BIRMINGHAM: So in 1992 meeting water quality 4 standards at Vernalis will not be a problem. 5 MR. HILDEBRAND: That doesn't necessarily follow. 6 MR. BIRMINGHAM: Well, let's assume 1992 is like 7 1998, there is absolutely no problem meeting water quality 8 standards in 1998; isn't that correct, Mr. Hildebrand? 9 MR. HILDEBRAND: In other words, you're talking about 10 a flood year not just a wet year. 11 MR. BIRMINGHAM: Okay. Let's assume it's a flood 12 year. 13 MR. HERRICK: If I may object for a moment to the 14 hypothetical. Are you saying that in 1991 is a dry year 15 but they know that '92 is going to be a wet year? I don't 16 understand that. 17 MR. BIRMINGHAM: I'm not saying that at all. 18 MR. HERRICK: Then, perhaps, you can clarify it, 19 please, in a polite manner. 20 MR. BIRMINGHAM: I don't think it requires 21 clarification, Mr. Stubchaer. I'm setting up some 22 assumptions that will be the basis of the question, and 23 quite frankly I don't think it requires clarification. 24 C.O. STUBCHAER: It's clear to me. 25 C.O. BROWN: It's clear to me, too. CAPITOL REPORTERS (916) 923-5447 8340 1 C.O. STUBCHAER: Continue. 2 MR. BIRMINGHAM: So 1991 is a dry year, which is 3 preceded by a number of years and the Bureau of Reclamation 4 has only 50,000 acre-feet of water in storage and cannot 5 meet water quality standards at Vernalis. And as a 6 result -- 7 MR. HILDEBRAND: Of course, the reason they don't 8 have enough water has to do how they managed it previously. 9 C.O. STUBCHAER: Mr. Hildebrand and Mr. Birmingham, 10 only one person can speak at time. I think Mr. Birmingham 11 was in the middle of speaking. 12 MR. HILDEBRAND: I'm sorry if I interrupted. 13 MR. BIRMINGHAM: Mr. Hildebrand, 1991 is a dry year 14 which followed a number of dry years and New Melones 15 Reservoir has only 50,000 acre-feet of water in storage and 16 as a result cannot meet water quality standards at 17 Vernalis. 18 Under the proposal that you have made, the State 19 Water Resources Control Board has ordered that in 1991 the 20 Bureau of Reclamation reduce exports at Tracy. And 1992 is 21 a year like 1998, extreme flood year, so meeting water 22 quality standards at Vernalis is not a problem. 23 Do you understand the assumptions? 24 MR. HILDEBRAND: I understand the assumptions. 25 MR. BIRMINGHAM: Now, isn't it correct, CAPITOL REPORTERS (916) 923-5447 8341 1 Mr. Hildebrand, that the amount of water that is going to 2 be available for contractors south of the Delta in 1992 3 will depend in part on the amount of water exported by the 4 Bureau of Reclamation in 1991? 5 MR. HILDEBRAND: Say that again, please. 6 MR. BIRMINGHAM: Yes. Isn't it correct, 7 Mr. Hildebrand, that the amount of water available to CVP 8 contractors south of the Delta in 1992 will depend in part 9 on the amount of water exported by the Bureau of 10 Reclamation at Tracy in 1991? 11 MR. HILDEBRAND: I don't think I follow that. 12 MR. BIRMINGHAM: Well, do you know that to be true or 13 not true? 14 MR. HILDEBRAND: You have to explain the logic of the 15 statement, the hypothesis you're making. 16 MR. BIRMINGHAM: Well, do you understand, 17 Mr. Hildebrand, how the Bureau of Reclamation allocates 18 water? 19 MR. HILDEBRAND: Not in detail. 20 MR. BIRMINGHAM: Do you understand the operations of 21 the Bureau of Reclamation in carrying water over in the San 22 Luis Reservoir to make water available for contractors in 23 subsequent years? 24 MR. HILDEBRAND: In general, yes. 25 MR. BIRMINGHAM: So if in 1991 the Bureau has been CAPITOL REPORTERS (916) 923-5447 8342 1 restricted in the amount of water that it can export, that 2 could affect allocations in 1992, isn't that correct, 3 Mr. Hildebrand? 4 MR. HILDEBRAND: I suppose it could, but I'm not sure 5 that it would be in a flood year. 6 MR. BIRMINGHAM: Well, if, in fact, Mr. Hildebrand, 7 it does, isn't the fact that exports were reduced in 1991 8 mean that water has been wasted because the reduced exports 9 in 1991 had no affect on water quality at Vernalis, but 10 because of the condition that has been imposed water users 11 in 1992 will be deprived of water? 12 MR. HILDEBRAND: Let's get back to the business of 13 what we're really talking about is a multi-year situation 14 here. The amount of water that's exported in any given 15 year carries with it this tonnage of salt which then leads 16 to the drainage into the river both in that current year 17 and subsequent years. And that creates a salinity problem. 18 So you can't correct the problem on an instantaneous basis 19 as we have discussed. It has to be corrected on a 20 multi-year basis. 21 And the Bureau has options to it which would 22 enable it to meet it on a consistent manner. If they do 23 not choose to do that, then, yes, there will be some 24 penalty involved in being required to, on a multi-year 25 basis, cut back. But when you have a complex thing like CAPITOL REPORTERS (916) 923-5447 8343 1 this that takes place over a period of years and which does 2 not respond instantaneously you have to address the 3 correction of a problem on a multi-year basis. And if the 4 Bureau does not choose to do it that way, then, yeah, there 5 will be some impacts. 6 MR. BIRMINGHAM: And, in fact, under the condition 7 that you've imposed one of the impacts could result in the 8 waste of water? 9 MR. HILDEBRAND: Well, it depends on your definition 10 of "waste." 11 MR. BIRMINGHAM: Well, what is your definition of 12 "waste," Mr. Hildebrand? 13 MR. HILDEBRAND: It's a question of whether the water 14 is beneficially used in the overall picture of the State. 15 MR. BIRMINGHAM: Well, let me ask you: Do you think 16 Westlands Water District beneficially uses water? 17 MR. HILDEBRAND: Sure. 18 MR. BIRMINGHAM: And under the scenario that we've 19 described in my hypothetical, isn't it correct that 20 Westlands Water District is one of the districts that would 21 have its water supply reduced because of the condition 22 imposed as a result of your suggestion? 23 MR. HILDEBRAND: Yeah, but you have to analyze -- 24 you'll get a deficit but perhaps somebody else gets a 25 benefit. We have to look at the overall picture. CAPITOL REPORTERS (916) 923-5447 8344 1 MR. BIRMINGHAM: Now, we've heard testimony ad 2 nauseam on this subject, Mr. Hildebrand, and I think 3 everyone now agrees that it's uncontested that Westlands 4 Water District does not discharge salts into the San 5 Joaquin River. You agree with that, don't you? 6 MR. HILDEBRAND: I agree with that. 7 MR. BIRMINGHAM: Now, I'd like to go back to your 8 testimony, specifically on Page 10. On Page 10 you say, 9 "To require some diverter on a tributary to the San Joaquin 10 to cut his diversion in order to meet the Vernalis salinity 11 objective is patently unfair and probably illegal." 12 And the reason that you say that is because it's 13 your view that the diverters on the tributaries to the San 14 Joaquin don't cause the salinity problem in the San 15 Joaquin? 16 MR. HILDEBRAND: That's right. 17 MR. BIRMINGHAM: Now, Westlands doesn't cause a 18 salinity problem in the San Joaquin, but you think it's 19 okay to take water away from Westlands? 20 MR. HILDEBRAND: Well, it might be reasonable for the 21 Board to decide only to limit the exports to those areas 22 that drain into the river. 23 MR. BIRMINGHAM: Well, let's talk about those areas 24 that drain into the river, Mr. Hildebrand. In order to do 25 that, the State Water Resources Control Board is going to CAPITOL REPORTERS (916) 923-5447 8345 1 have to become intimately involved in the way the Bureau of 2 Reclamation allocates water? 3 MR. HILDEBRAND: Well, if it can't do that then it 4 would have to do it on the overall instead. 5 MR. BIRMINGHAM: Focusing on the water users that 6 drain into the river, Mr. Hildebrand, under the scenario 7 that we described in 1991 and 1992, for hypothetical years, 8 in those years those water users will be deprived of water; 9 is that correct? 10 MR. HILDEBRAND: That's correct. 11 MR. BIRMINGHAM: And you would agree, wouldn't you, 12 Mr. Hildebrand, that water districts like Del Puerto Water 13 District use water beneficially? 14 MR. HILDEBRAND: Yes. 15 MR. BIRMINGHAM: And under your proposal you would 16 have deprived Del Puerto Water District of water? 17 MR. HILDEBRAND: Yes, but in the long term that 18 deprivation has to be weighed against the problems caused, 19 for example, to the South Delta Water Agency by the failure 20 to meet the water quality standard. 21 MR. BIRMINGHAM: And Panoche Water District, 22 Mr. Hildebrand, you would agree that Panoche Water District 23 has used water beneficially? 24 MR. HILDEBRAND: Those are good people and they use 25 water beneficially, yes. CAPITOL REPORTERS (916) 923-5447 8346 1 MR. BIRMINGHAM: And under the proposal that you're 2 suggesting, Del Puerto and Panoche will have been deprived 3 water under our hypothetical in both 1991 and 1992? 4 MR. HILDEBRAND: That's an unfortunate consequence of 5 the failure of the Bureau to take care of the water quality 6 problem. 7 MR. BIRMINGHAM: And so what you're suggesting is 8 that the State Water Resources Control Board punish 9 Westlands Water District, Del Puerto Water District and 10 Panoche Water District because the Bureau of Reclamation 11 has failed to construct a drain? 12 MR. HILDEBRAND: That isn't what would happen. If 13 the Bureau knew that this was going to be the result they 14 would get busy and solve the problem. 15 MR. BIRMINGHAM: Do you know that to be a fact, 16 Mr. Hildebrand? 17 MR. HILDEBRAND: Seems to me very logical to 18 anticipate that. 19 MR. BIRMINGHAM: Well, let's examine that. Are you 20 aware of forces in the state of California and the federal 21 government that would like nothing better than to see water 22 taken away from CVP contractors on the west side of the San 23 Joaquin Valley? 24 MR. HILDEBRAND: I don't think those forces are in 25 the Bureau of Reclamation. They take pretty good care of CAPITOL REPORTERS (916) 923-5447 8347 1 their customers. 2 MR. BIRMINGHAM: Are you aware of those forces in the 3 Department of Interior? 4 MR. HILDEBRAND: I'm aware that there are people in 5 the Department of Interior who appear not to think that 6 it's important to grow food, yes. 7 MR. BIRMINGHAM: So you don't know for a fact, 8 Mr. Hildebrand, that if the Bureau or the Department of the 9 Interior was aware that the consequence of your proposal 10 was going to be to take water away from these districts, to 11 punish these districts, that the Bureau would build a 12 drain? 13 MR. HILDEBRAND: I think it's a pretty good gamble to 14 assume that they would. 15 MR. BIRMINGHAM: Let me ask you this question, 16 Mr. Hildebrand, and your lawyer may object to this as 17 argumentative, but: Would you be willing to take the 18 gamble and share a supply of your water with Westlands 19 Water District, Del Puerto Water District and Panoche Water 20 District if the Bureau of Reclamation doesn't construct a 21 drain? 22 MR. HILDEBRAND: Say that again, please. 23 MR. BIRMINGHAM: Well, you're discussing it's a fair 24 gamble and what I'm asking you is: Are you willing to take 25 some of the risk associated with that gamble? CAPITOL REPORTERS (916) 923-5447 8348 1 MR. HILDEBRAND: I don't see why we should take the 2 risk, we're the ones being injured. 3 MR. BIRMINGHAM: I'd like to go back to the statement 4 on Page 10 of your testimony that I read a few moments ago, 5 it states, "To require some diverter on a tributary to the 6 San Joaquin to cut his diversion in order to meet the 7 Vernalis salinity objectives is patently unfair and 8 probably illegal." 9 And you said a few moments ago, Mr. Hildebrand, 10 that you make that statement because it's your view that 11 diverters on tributaries to the San Joaquin have not 12 contributed to the salinity problem in the San Joaquin 13 River? 14 MR. HILDEBRAND: That's right. 15 MR. BIRMINGHAM: Are you familiar with South Delta 16 Water Agency Exhibit Number 48? 17 MR. HILDEBRAND: I don't know by number, but if 18 you'll show it to me -- 19 MR. BIRMINGHAM: It's a report entitled "Effects of 20 the CVP Upon the Southern Delta Water Supply, 21 Sacramento/San Joaquin River Delta, California," dated June 22 1980, prepared -- 23 MR. HILDEBRAND: I'm very familiar with that. I was 24 one of the authors. 25 MR. BIRMINGHAM: Now, as I understand this report, CAPITOL REPORTERS (916) 923-5447 8349 1 South Delta Water Agency Exhibit 48, it's a report that 2 looks at the effects of the CVP on flows in the San Joaquin 3 River and water quality in the San Joaquin River. 4 Is that correct? Mr. Hildebrand? 5 MR. HILDEBRAND: That's correct. 6 MR. BIRMINGHAM: And in order to make that -- in 7 order to conduct the analysis, the authors of this report, 8 South Delta Water Agency Exhibit 48, prepared conditions 9 prior to the construction of the Central Valley Project 10 with the conditions that existed after construction of the 11 project? 12 MR. HILDEBRAND: That's right. 13 MR. BIRMINGHAM: And in analyzing the conditions that 14 existed prior to the construction of the CVP, and it's 15 important to clarify here, isn't it, Mr. Hildebrand, that 16 this report was prepared prior to the operation of New 17 Melones Reservoir? 18 MR. HILDEBRAND: That's right. 19 MR. BIRMINGHAM: And so this report doesn't consider 20 the impacts of New Melones Reservoir? 21 MR. HILDEBRAND: That's right. 22 MR. BIRMINGHAM: So in order to conduct the analysis 23 of conditions in the San Joaquin River prior to the 24 construction of the Central Valley Project, the authors of 25 this report analyzed the impacts on flows in the San CAPITOL REPORTERS (916) 923-5447 8350 1 Joaquin River by what is referred to in the report as 2 "upstream development"? 3 MR. HILDEBRAND: Yes. 4 MR. BIRMINGHAM: May I have a moment? Do you have a 5 copy of South Delta Water Agency Exhibit 48 with you, 6 Mr. Hildebrand? 7 MR. HILDEBRAND: I don't have it with me, no. 8 MR. BIRMINGHAM: We'll have to share my copy, then. 9 MR. GODWIN: Tom, I have a copy. 10 MR. HILDEBRAND: Better binding than they've got on 11 my copy. 12 MR. BIRMINGHAM: Do you have a copy of South Delta 13 Water Agency Exhibit 48 in front of you now, 14 Mr. Hildebrand? 15 MR. HILDEBRAND: Yes. 16 MR. BIRMINGHAM: I'd ask you to turn to the chart 17 which is not paginated, but which is immediately after Page 18 31 of the report. 19 MR. HILDEBRAND: Okay. 20 MR. BIRMINGHAM: And I'd ask you to find the year 21 1944. 22 C.O. BROWN: What page are you on? 23 C.O. STUBCHAER: Excuse me, Mr. Birmingham, we just 24 got our copy. Could you tell us which page you're on? 25 MR. BIRMINGHAM: We're looking at the chart which CAPITOL REPORTERS (916) 923-5447 8351 1 immediately follows Page 31. 2 C.O. STUBCHAER: Thank you. 3 MR. BIRMINGHAM: And it's a chart that is labeled 4 "San Joaquin River near Vernalis Annual Flow, pre-1944 and 5 post-1947." 6 Do you have that in front of you, Mr. Hildebrand? 7 MR. HILDEBRAND: Yes. 8 MR. BIRMINGHAM: Now, 1944 was a year prior to the 9 construction and operation of the CVP; is that correct? 10 MR. HILDEBRAND: Yes. 11 MR. BIRMINGHAM: And I believe 1944 is classified as 12 a below-normal year; is that correct? 13 MR. HILDEBRAND: I don't recall. 14 MR. BIRMINGHAM: Well, do you have Page 31 in front 15 of you, Mr. Hildebrand? 16 MR. HILDEBRAND: Yes. 17 MR. BIRMINGHAM: At Page 31 is table 5-1; is that 18 correct? 19 MR. HILDEBRAND: Yes. 20 MR. BIRMINGHAM: And that is the year's 21 classifications for the San Joaquin River? 22 MR. HILDEBRAND: Yes. 23 MR. BIRMINGHAM: And a below-normal year is a year in 24 which the unimpaired flow is between 3.5 and 5.6 million 25 acre-feet; is that correct, Mr. Hildebrand? CAPITOL REPORTERS (916) 923-5447 8352 1 MR. HILDEBRAND: Yes. 2 MR. BIRMINGHAM: In 1944 the unimpaired flow would 3 make 1944 a below-normal year; is that correct? 4 MR. HILDEBRAND: It's a little hard to read the 5 statistic here, but I would judge that it is, but only just 6 it's at the low end of the below-normal year. 7 MR. BIRMINGHAM: It appears that the unimpaired flow 8 in 1944, Mr. Hildebrand, was somewhere in the vicinity of 9 four million acre-feet; is that correct? 10 MR. HILDEBRAND: It looks about right. 11 MR. BIRMINGHAM: I'm sorry, I was not one of the 12 authors of the report, so you can't criticize me for making 13 this hard to read. 14 Now, I'd like to ask you to estimate what the 15 actual flow in the San Joaquin River was in 1944, 16 Mr. Hildebrand. 17 MR. HILDEBRAND: Well, that will be in the book here 18 somewhere. 19 MR. BIRMINGHAM: Well, looking at the table, or the 20 chart on page -- following Page 31, it appears that the 21 actual flow at Vernalis in 1944 was approximately a million 22 acre-feet. 23 MR. HILDEBRAND: Approximately, yeah. 24 MR. BIRMINGHAM: So does that mean, Mr. Hildebrand, 25 that other upstream diverters, and by "other" I mean CAPITOL REPORTERS (916) 923-5447 8353 1 upstream diverters other than the Central Valley Project, 2 other San Joaquin River or San Joaquin River tributary 3 diverters took about 3 million acre-feet out of the San 4 Joaquin River in 1944? 5 MR. HILDEBRAND: That's right. 6 MR. BIRMINGHAM: Now, let me ask you to assume 7 that -- let me ask the question differently, 8 Mr. Hildebrand. 9 Isn't it correct that in 1944 the in-basin 10 diverters who took three out of four million acre-feet of 11 water out of the river would have had an impact on water 12 quality at Vernalis? 13 MR. HILDEBRAND: No, because at that time we didn't 14 have any drainage from the west side coming into there -- 15 C.O. STUBCHAER: Continue? 16 MR. HILDEBRAND: Continue, okay. We did not have a 17 salinity problem in the river prior to the CVP, because the 18 drainage out of the west side diverters who caused this 19 depletion that you point to, were using high-quality water 20 so their return flows were still high quality. 21 And, consequently, there was never a salinity as 22 far as down as Mossdale of more than about 400 parts per 23 million, which is less than the current salinity standard. 24 MR. BIRMINGHAM: And your point -- excuse me. Were 25 you finished, Mr. Hildebrand? CAPITOL REPORTERS (916) 923-5447 8354 1 MR. HILDEBRAND: Okay. 2 MR. BIRMINGHAM: And your point is that the CVP is 3 entirely responsible for the water quality problem at 4 Vernalis? 5 MR. HILDEBRAND: Yes. 6 MR. BIRMINGHAM: Now, since 1944, Mr. Hildebrand, has 7 there been any development in the San Joaquin River? 8 MR. HILDEBRAND: Oh, yes. 9 MR. BIRMINGHAM: And has there been development in 10 the San Joaquin Valley? Have communities near the 11 community of Modesto grown? 12 MR. HILDEBRAND: Oh, yes. 13 MR. BIRMINGHAM: Do you know, Mr. Hildebrand, how 14 many PRTWs discharge into the San Joaquin River? 15 MR. HILDEBRAND: I don't know how many, but the 16 question is: What water is discharged into the river at 17 salinities above the salinity standard? And, perhaps, with 18 minor exceptions, see, the drainage on the west side does 19 not enter the river at salinities above the salinity 20 standard and, therefore, they don't require dilution to 21 meet the standards. They do increase the salinity somewhat 22 to what it would have been in the absence of those cities, 23 granted. But so far as compliance with the salinity 24 standard is concerned, they're not the cause of the 25 problem. CAPITOL REPORTERS (916) 923-5447 8355 1 MR. BIRMINGHAM: Now, is there any -- 2 MEMBER DEL PIERO: Excuse me. 3 C.O. STUBCHAER: Mr. Del Piero. 4 MEMBER DEL PIERO: Mr. Hildebrand, you said "west 5 side," but everything -- 6 MR. HILDEBRAND: I beg your pardon. 7 MEMBER DEL PIERO: Everything you stated meant you 8 indicated east side; is that correct? 9 MR. HILDEBRAND: Thank you for the correction. 10 MEMBER DEL PIERO: Okay. 11 MR. BIRMINGHAM: Now, Mr. Hildebrand, associated with 12 the urban development in the San Joaquin Valley, is there 13 any surface runoff that discharges into the San Joaquin 14 River? 15 MR. HILDEBRAND: I can't say for sure whether -- in 16 some cases it goes into ascendant ponds where it seeps to 17 the groundwater and eventually gets back to the river that 18 way. 19 MR. BIRMINGHAM: Do you know if there are any 20 communities that discharge their surface runoff directly 21 into the San Joaquin River? 22 MR. HILDEBRAND: Oh, I believe Ripon, for example, 23 does. 24 MR. BIRMINGHAM: And that's above the confluence of 25 the Stanislaus and San Joaquin River? CAPITOL REPORTERS (916) 923-5447 8356 1 MR. HILDEBRAND: Yes. 2 C.O. STUBCHAER: Mr. Birmingham -- 3 MR. BIRMINGHAM: I have approximately another 20 4 minutes. Mr. Hildebrand's answers tend to go beyond my 5 questions. I understand that the Board is going to permit 6 that, but because of that -- well, let me state first, I 7 based my estimate of time on an assumption that 8 Mr. Hildebrand will respond only to my question.. And when 9 he goes beyond my questions, it lengthens the -- 10 C.O. STUBCHAER: Yes. And we did stop the timer 11 during some of the lengthy responses, too. All right, 12 another 20 minutes. 13 MR. BIRMINGHAM: Thank you. But, Mr. Hildebrand, the 14 point is that you would agree that there have been 15 developments in the San Joaquin Valley since 1944 other 16 than the operation of the CVP which have impacted water 17 quality in the San Joaquin River? 18 MR. HILDEBRAND: I don't think those developments 19 have impacted it to a degree that would cause an exceedance 20 of the salinity standard -- 21 MR. BIRMINGHAM: Well -- 22 MR. HILDEBRAND: -- on the east side. 23 MR. BIRMINGHAM: Let's talk about one water user in 24 particular, City and County of San Francisco. Since 1944 25 has the City and County of San Francisco significantly CAPITOL REPORTERS (916) 923-5447 8357 1 increased the amount of water that it exports from 2 tributaries to the San Joaquin River? 3 MR. HILDEBRAND: Substantially, yes. Manyfold. 4 MR. BIRMINGHAM: Manyfold. And, in fact, that's a 5 point that's made by South Delta Water Agency Exhibit 48; 6 isn't that correct? 7 MR. HILDEBRAND: That's correct. 8 MR. BIRMINGHAM: And so let's, again, focusing on the 9 City and County of San Francisco when you say, "To require 10 some diverter on a tributary of San Joaquin to cut his 11 diversion in order to meet the Vernalis salinity objectives 12 is patently unfair," you would agree that that statement 13 may not apply to the City and County of San Francisco? 14 MR. HILDEBRAND: In making that statement I was 15 thinking of those that use the water within the basin. 16 MR. BIRMINGHAM: So you would exclude the City and 17 County of San Francisco from that statement? 18 MR. HILDEBRAND: Yes. Although, I'm still not sure 19 that that exclusion is needed in order to meet what I 20 previously stated, that I don't think the diversions on the 21 east side would of and by themselves cause a violation of 22 the standards -- 23 MR. BIRMINGHAM: Well -- 24 MR. HILDEBRAND: -- distinguished from flow 25 requirements. CAPITOL REPORTERS (916) 923-5447 8358 1 MR. BIRMINGHAM: And the water quality control plan 2 pertains to both; isn't that correct, Mr. Hildebrand? 3 MR. HILDEBRAND: Yes, but we're talking about 4 salinities so far. 5 MR. BIRMINGHAM: And if the City and County of San 6 Francisco hadn't by manyfold increased its exports from the 7 valley, that would be additional water in the San Joaquin 8 River to dilute those return flows that we've been talking 9 about? 10 MR. HILDEBRAND: Oh, yeah. There is a distinction 11 here between whether they have an obligation to dilute, or 12 whether they would dilute in the event that they were not 13 using the water for some other purpose. 14 MR. BIRMINGHAM: Okay. I'd like to take this 15 testimony back to the San Joaquin River Agreement. The 16 City and County of San Francisco is a party to the San 17 Joaquin River Agreement; isn't that correct, 18 Mr. Hildebrand? 19 MR. HILDEBRAND: That's my understanding. 20 MR. BIRMINGHAM: And, Mr. Hildebrand, do you think 21 it's inappropriate for the City and County of San Francisco 22 to try and meet whatever obligation it may have and 23 eliminate the risk of litigation by entering into an 24 agreement like the San Joaquin River Agreement? 25 MR. HILDEBRAND: Well, I suppose in their CAPITOL REPORTERS (916) 923-5447 8359 1 self-interest that may be an understandable thing for them 2 to do. 3 MR. BIRMINGHAM: Mr. Hildebrand, there's one other 4 series of questions I have for you about your written 5 testimony. On Page 10 of your written testimony -- I'm 6 sorry, Page 9 of your written testimony under the heading 7 "Maintaining Adequate Flow for Repairing the Public Trust 8 Needs," you state that "As we have shown, the operation of 9 the CVP prior to New Melones resulted in an average annual 10 decrease of flows at Vernalis at 553,000 acre-feet -- " 11 MR. HILDEBRAND: It should read "of which." I see 12 that there is a typo there. 13 MR. BIRMINGHAM: Okay. Now, that's an average; is 14 that correct, Mr. Hildebrand? 15 MR. HILDEBRAND: That's my recollection. 16 MR. BIRMINGHAM: If we look at Page 39 of South Delta 17 Water Agency Exhibit 48 -- 18 MR. HILDEBRAND: Which page was that, again? 19 MR. BIRMINGHAM: 39. It talks about summary of 20 impacts in dry years; is that correct? 21 MR. HILDEBRAND: Yes. 22 MR. BIRMINGHAM: And in a dry year the reduction in 23 flows resulting from operation of the CVP ranges from 24 93,000 to 133,000 acre-feet; is that correct, 25 Mr. Hildebrand? Page 39, Mr. Hildebrand. CAPITOL REPORTERS (916) 923-5447 8360 1 MR. HILDEBRAND: Yes, I'm just looking at it here. 2 Yes, that's correct. 3 MR. BIRMINGHAM: And so in a dry year the impacts of 4 the CVP are substantially less than the impacts stated in 5 your written testimony on Page 9? 6 MR. HILDEBRAND: Well, Page 9 referred to the average 7 and this refers to a dry year, yes. 8 MR. BIRMINGHAM: But the average would include 9 reductions in wet years? 10 MR. HILDEBRAND: That's right. 11 MR. BIRMINGHAM: And you've indicated that in wet 12 years there generally isn't a problem in meeting the water 13 quality standards at Vernalis? 14 MR. HILDEBRAND: That's right. 15 MR. BIRMINGHAM: I have no further questions. 16 C.O. STUBCHAER: Thank you, Mr. Birmingham. 17 Mr. Herrick, do you want to do the direct 18 testimony of Dr. Orlob at this time? 19 MR. HERRICK: Yes. If we could ask Dr. Orlob to 20 please come forward. Let me arrange my stuff here. 21 Dr. Orlob has not been sworn in. 22 C.O. STUBCHAER: All right. Good morning, Dr. Orlob. 23 DR. ORLOB: Good morning. 24 C.O. STUBCHAER: Before you sit down, please, raise 25 your right hand. Do you promise to tell the truth in this CAPITOL REPORTERS (916) 923-5447 8361 1 proceeding? 2 DR. ORLOB: I do. 3 C.O. STUBCHAER: Okay. You may be seated. 4 DR. ORLOB: Thank you. 5 MR. HERRICK: Mr. Chairman, just as an introduction, 6 Dr. Orlob's information which leads to his conclusions in 7 his testimony does also relate to Phase V. We didn't put 8 it in there. I don't want you to think that we were being 9 repetitive or avoiding the proper phase, but some of the 10 information is what he uses to reach his conclusions about 11 the effects of transfer sales. Just with that introduction 12 I'll ask Dr. Orlob to summarize his testimony. 13 C.O. STUBCHAER: Which is Exhibit 34-A of South Delta 14 Water Agency. 15 MR. HERRICK: 34-A. 16 ---oOo--- 17 DIRECT TESTIMONY OF SOUTH DELTA WATER AGENCY 18 BY DR. GERALD T. ORLOB 19 BY JOHN HERRICK 20 DR. ORLOB: Mr. Chairman, ladies and gentlemen of the 21 Board -- 22 MR. O'LAUGHLIN: We can't hear. 23 MS. LEIDIGH: Would you pick up the microphone. 24 DR. ORLOB: Would you like me to sit down? It's a 25 pleasure to appear before you again and to give testimony CAPITOL REPORTERS (916) 923-5447 8362 1 on behalf of the South Delta Water Agency. 2 I have been involved with the South Delta Water 3 Agency since 1974 and before that with the Old Delta Water 4 Agency. And throughout that period I've had the 5 opportunity to review the historic development of water, 6 surface water systems in the Central Valley, in particular, 7 in the San Joaquin Valley as well, examining the changes in 8 water quality and the impacts of water diversions in the 9 San Joaquin Valley on water quality as it affects the lands 10 of the South Delta Water Agency. 11 During this period, it has become apparent to me 12 up to the present time that we have reached a situation in 13 the San Joaquin Valley where, in effect, we have 14 overdeveloped the surface water supply. That is to say we 15 have reached at least the limit of the capabilities of the 16 surface water systems in the San Joaquin Valley to meet the 17 requirements for water quality maintenance and flow 18 maintenance downstream. 19 And, in particular, this overdevelopment, as I 20 characterize it, impacts directly the capability of the 21 projects to satisfy the flow and water quality requirements 22 at Vernalis and below Vernalis for the -- in the interest 23 of the South Delta Water Agency. 24 Further allocation, in my opinion, in both space 25 and time of the available water resources will be adverse CAPITOL REPORTERS (916) 923-5447 8363 1 to the interests of the South Delta Water Agency in 2 attaining its goals for productive agriculture requiring 3 water of a sufficient quantity to maintain flow through the 4 Delta, through the lands of the South Delta Water Agency 5 and to maintain quality that's acceptable for agriculture 6 in that region. 7 I'd like to illustrate, in general, the basis for 8 this assertion on the part of the South Delta Water Agency 9 that the water supply is at a point of overdevelopment or 10 near that point. And that further development, or 11 reallocation of water either within the basin in time, or 12 exported from the basin will be adverse to the interests of 13 the water agency. 14 I can illustrate that to start with by a little 15 historic summary of changes that have taken place in the 16 San Joaquin basin over its historic period from about 1900 17 to the present date. 18 The Exhibit 1 -- it's not Exhibit 1, Figure 1 in 19 the Delta Water Agency Exhibit 34-A illustrates the change 20 in storage on this axis that has occurred as a result of 21 development of projects within the San Joaquin basin. And 22 the changes that have been rather dominant are 23 characteristically strong in the early period from about 24 1920 to about 1940 when projects were developed on the 25 principal tributaries. CAPITOL REPORTERS (916) 923-5447 8364 1 MS. LEIDIGH: Excuse me. 2 C.O. STUBCHAER: Ms. Leidigh. 3 MS. LEIDIGH: Dr. Orlob, this exhibit seems to be 4 South Delta Exhibit Number 1 that you're looking at here. 5 There's nothing attached to your written testimony, which 6 is Exhibit 34-A. 7 MR. HERRICK: Yes. 8 MS. LEIDIGH: So I think for the record we need to 9 clarify that. 10 MR. HERRICK: Yes. For the record, the overheads 11 that Dr. Orlob will be showing are South Delta Exhibits 1 12 through 9, I believe. We originally had them as figures to 13 his testimony. I made separate exhibits for -- 14 DR. ORLOB: It was my written testimony that was 15 34-A, is that the way it is? 16 MR. HERRICK: Yes. 17 DR. ORLOB: Yes, these exhibits have different 18 numbers. I'm sorry for that. But notable changes have 19 taken place, of course, during this early period, but 20 subsequently in the period from about 1940 to 1960 when the 21 Central Valley Project went on line there was a continued 22 increase in storage. And then subsequent to about 1965 or 23 so, New Exchequer, New Don Pedro and New Melones Reservoirs 24 came on line providing additional surface water storage to 25 meet whatever requirements for beneficial water use there CAPITOL REPORTERS (916) 923-5447 8365 1 were within the basin. 2 At the present time, we have reached an order of 3 about 8 million acre-feet capacity, surface water storage 4 capacity within the system. Perhaps, it's a little greater 5 than that if you consider some of the changes that have 6 taken place more recently. 7 This development is also characterized by an 8 increase in the total water diverted to irrigation in the 9 valley. And this is a representation of the total 10 diversions in acre-feet of the principal water users in the 11 four sub-basins: Stanislaus, Tuolumne, Merced and in the 12 upper San Joaquin. 13 So one sees from 1900 a gradual increase in the 14 amount of surface water diverted to agricultural use. 15 This, of course, is not the total amount of consumptive use 16 within the basin, or I should say application to 17 irrigation, but represents a substantial part of it. And 18 you would note in particular periods when the surface water 19 allocation was much less than the general trend of change 20 over that period of time. 21 Notably in the drought periods in the 1930s and 22 1960, '61, and in the drought of '76/'77 there were great 23 deficiencies in the availability of the projects -- or the 24 capability of the projects to supply water for agriculture. 25 This has some rather significant consequences in terms of CAPITOL REPORTERS (916) 923-5447 8366 1 the water users within the basin and has resulted, as you 2 may see in this next illustration, in the agriculturalist 3 turning to groundwater to supplement their supply. 4 Now, there's a natural agricultural activity to 5 not depend solely on a single source, but rather to have 6 multiple sources available for meeting your demands in 7 agriculture. In this case, both the groundwater and 8 surface water supplies were tapped for -- to satisfy the 9 requirements. But it's notable, again, that in the drought 10 periods 1961, 1931, '72, '77 that there were additional 11 diversions from groundwater. So agriculturists not able to 12 meet the supply from surface water sources turn to 13 groundwater. 14 This becomes especially important to us -- 15 C.O. STUBCHAER: Excuse me a minute, Doctor. 16 Please, identify this exhibit and the previous 17 exhibit, Mr. Herrick. 18 DR. ORLOB: This is Figure 3 in our presentation. 19 MR. HERRICK: This is South Delta 3 and the previous 20 one was South Delta 2. 21 C.O. STUBCHAER: Right. You just need to mention as 22 they go on the screen. 23 DR. ORLOB: One notes, also, similar in the case of 24 surface water supplies that there's a gradual trend upward 25 in the use of groundwater during this historic period. I'm CAPITOL REPORTERS (916) 923-5447 8367 1 sorry, I don't have more recent data, but the trend is 2 still somewhat that as illustrated in this example. 3 May I have the next, please? 4 MR. HERRICK: This is South Delta Agency Number 4. 5 DR. ORLOB: One of the consequences -- 6 C.O. STUBCHAER: Excuse me. A question from 7 Mr. Brown, Doctor. 8 DR. ORLOB: Yes, sir. 9 C.O. BROWN: Back up the overhead if you would, 10 please, Mr. Herrick. You said the groundwater extractions 11 in 1977 to about two and a half million acre-feet? 12 DR. ORLOB: In 1977, that order, yes. 13 C.O. BROWN: How big an area does that cover? 14 DR. ORLOB: Well, these are essentially the four east 15 side basins that were included within the depletion study 16 area designations for that east side area by the Department 17 of Water Resources in their water use studies. 18 C.O. BROWN: This is all east of what, the San 19 Joaquin? 20 DR. ORLOB: East of the San Joaquin River. So it's 21 that portion east of the river down to the river. 22 C.O. BROWN: Does that include the Friant system, or 23 down to the -- 24 DR. ORLOB: No. 25 C.O. BROWN: -- the head works of the San Joaquin? CAPITOL REPORTERS (916) 923-5447 8368 1 So it picks up at Exchequer, or someplace? 2 DR. ORLOB: But it includes all of those areas down 3 to the San Joaquin River as it moves down from Friant into 4 the valley floor and then moves northward. 5 C.O. BROWN: Okay. So this is everything, 6 essentially, east of the San Joaquin River not all the way 7 up the Friant? 8 DR. ORLOB: Yes. 9 C.O. BROWN: Okay. Thank you. 10 DR. ORLOB: There is a little geographic problem 11 here, because some of these designations for depletion 12 study areas do not coincide exactly with drainage problems. 13 So this is roughly the area that we're concerned with. 14 C.O. BROWN: Thank you, Mr. Chairman. 15 MR. HERRICK: Back to South Delta Number 4. 16 DR. ORLOB: This is Figure 4. It shows some 17 interesting information that is relevant to our position 18 that there has been a decrease in the quality and the 19 increase in the salt load that has derived from this valley 20 area to -- and becomes tributary to the Delta approximately 21 at Vernalis. 22 If we take the annual flow, or by month-by-month, 23 and the corresponding qualities we can estimate the salt 24 load in tons per year that would be delivered to Vernalis. 25 This figure shows the variation in these quantities CAPITOL REPORTERS (916) 923-5447 8369 1 throughout the historic period from about 1930 to the 2 present, up to 1996. Actually, I have some data for 1997 3 and '98 which would complete this figure, bring it 4 up-to-date. 5 What is important here is that over this period 6 there has been a substantial change in the overall salt 7 load that is delivered to Vernalis between the period of 8 the inception of the Central Valley Project and the 9 subsequent time period, to the present. 10 And has resulted -- can be determined by 11 estimating the average salt load from 1930 to about 1950. 12 And the CVP went on line, which is in the order of about 13 750,000 tons per year. If we take the period from 1950 14 forward to approximately the present date they average very 15 close to a million tons, or say on the order of 950,000 16 tons per year. 17 So there's been a 25- to 30-percent increase in 18 the total tonnage of salts delivered from the basin at 19 Vernalis as a result of whatever has happened within the 20 system with the break point at approximately the level of 21 the CVP inception. 22 C.O. BROWN: Question, Mr. Chairman. 23 C.O. STUBCHAER: Mr. Brown. 24 C.O. BROWN: Do you have the chart coming up that 25 shows the concentration of those loadings, though? CAPITOL REPORTERS (916) 923-5447 8370 1 DR. ORLOB: I do have those, but I didn't put them in 2 the form of the concentrations that correspond to these 3 values. 4 C.O. BROWN: Okay. You kind of need both, don't you? 5 DR. ORLOB: Pardon? 6 C.O. BROWN: You kind of need both in order to figure 7 out what's happened? 8 DR. ORLOB: Of course, I needed to have both in order 9 to determine the salt load. I have the data that 10 corresponds to the corresponding periods. I didn't want to 11 include everything in here. 12 C.O. BROWN: Okay. 13 DR. ORLOB: But I can provide that. There is some 14 interesting history there, because early on, that is in the 15 period -- the early period there were qualities at Vernalis 16 that were rather good, that were favorable to agriculture. 17 There were changes that took place in the period shortly 18 after the inception of the CVP in which there were no 19 facilities deliberately actuated for the purpose of 20 maintaining quality up until New Melones came on line. 21 When New Melones came on line those larger 22 fluctuations in quality diminished because of the 23 capability of New Melones to deliver additional water for 24 quality control at Vernalis. So one looks at the record 25 post-New Melones, we find that for the most part qualities CAPITOL REPORTERS (916) 923-5447 8371 1 have been maintained within the target objectives in the 2 order of about 500 milligrams per liter. So it's 3 interesting, but it's a little hard to compare that 4 directly to this in terms to just concentrations. 5 C.O. BROWN: Thank you. 6 DR. ORLOB: And, of course, associated with that is a 7 change in the flow that would be associated with this 8 period. 9 Now, as I have suggested -- 10 MR. HERRICK: Pardon me. This is South Delta 11 Number 5. 12 DR. ORLOB: Okay. As I've suggested, there is an 13 increase -- there has been an increasing dependence upon 14 groundwater during this period, particularly during drought 15 years when there's insufficient surface water in storage to 16 meet surface water requirements for irrigation, and this 17 has resulted in increased pumpage. 18 This illustration shows the distribution of wells 19 that are used for supplying water to irrigation on the 20 surface in the San Joaquin Valley between the river itself 21 and the proximate location of the California Aqueduct. And 22 one can see the rather intense utilization of the 23 groundwater implicit in the density of these observations 24 in the reach on the western side of the San Joaquin and, 25 perhaps, significant variation in the eastern side, but not CAPITOL REPORTERS (916) 923-5447 8372 1 near so dense a population of wells. These data were taken 2 for -- from well logs documented by the Department of Water 3 Resources. 4 MR. HERRICK: Here's South Delta Number 6. 5 DR. ORLOB: This illustration shows approximately the 6 average quality of groundwater in this same area. And one 7 notes that west -- I should say east of the San Joaquin 8 that water quality is generally rather good. These 9 contours show the electrical conductivity, the EC in 10 micromhos per centimeter from about 250 to maybe in the 11 order of 500 or so on the east side, but ranging up to over 12 2,000 in some localities on the west side between the river 13 and the route of the aqueduct. 14 This is the water that then would be diverted from 15 groundwater in a dry year are representative of that 16 quality in a dry year in order to meet the requirements 17 that are not satisfied by surface water diversions. 18 MR. HERRICK: Here's South Delta Number 7. 19 DR. ORLOB: This is just an illustration of the 20 system on the Stanislaus to indicate points of diversion. 21 For example, for CVP export, Stockton East, this is just 22 following the schematic of the Central Valley Project 23 system -- well, including the Department of Water Resources 24 facilities as well. 25 It might be informative in -- as illustrated in CAPITOL REPORTERS (916) 923-5447 8373 1 this next exhibit to follow the changes in quality in the 2 river near Vernalis, the San Joaquin River near Vernalis in 3 terms of mean TDS salt load and monthly runoff over a 4 period that includes, you might say, drought years in the 5 early '90s, in particular in the period of 1992 to '94, and 6 one can see the significant relationship between changes in 7 quality and the runoff. 8 And, of course, in the more recent years where we 9 had high runoff where the quality has been much more 10 favorable, but there were periods in which we had quality 11 at Vernalis exceeding target values for maintenance of 12 water at the quality levels acceptable to agriculture. 13 C.O. STUBCHAER: It was Figure 8? 14 MR. HERRICK: South Delta Number 8 on the overhead 15 right now. 16 C.O. STUBCHAER: Could you move it slightly to your 17 left to give us a glimpse of the vertical axis. 18 DR. ORLOB: The vertical axis, this is a thousand 19 tons of salt, or runoff in thousand acre-feet, or total 20 dissolved solids in milligrams per liter all in the same 21 scale. 22 C.O. STUBCHAER: Thank you. 23 MR. HERRICK: This is South Delta Number 9. 24 DR. ORLOB: To illustrate some possible consequences 25 of exportation of water to other locations within the CAPITOL REPORTERS (916) 923-5447 8374 1 system or reallocation in time, I did a simple water 2 balance study with the assumption that under some 3 contractual relationships there might be allocated outside 4 of the Stanislaus basin as much as 50,000 acre-feet in a 5 year. 6 And I distributed this in accordance with the 7 normal pattern of irrigation of the South San Joaquin and 8 Oakdale Irrigation Districts so that I simply in this 9 assumption subtracted the 50,000 acre-feet, distributed a 10 portion to the irrigation usage, month-by-month of those 11 agencies, and assumed that it was not available within the 12 basin. 13 The result of that, of course, would be a 14 depletion of the residual flow that would acreek to the 15 river, to the Stanislaus River, and then finally ends up at 16 the San Joaquin and be provided for mixing at that point 17 and dilute -- and possibly dilute the quality of salts 18 coming down the San Joaquin. And the result of that shows 19 that in those cases, particularly the drought years in 20 which this water would not be available to the lower 21 portion of the Stanislaus, there would be at Vernalis a 22 substantial increase in the total dissolved salts. 23 So the result of -- the indication of this 24 analysis is that any exportation that would deplete the 25 available residual water in the Stanislaus River below the CAPITOL REPORTERS (916) 923-5447 8375 1 diversion point for the Oakdale or the South San Joaquin 2 Irrigation Districts would be detrimental to the quality of 3 the San Joaquin River at Vernalis. 4 So the final conclusion is that with these 5 expectations of reallocation of water, either within the 6 basin or outside of the basin there would be some 7 substantial changes that would be detrimental to the 8 interest of the South Delta Water Agency. 9 My general conclusion from this analysis is that 10 any reallocation of water in the Stanislaus basin that 11 diminishes the flow to the Stanislaus River below Goodwin 12 Dam during the critical irrigation season made in 13 September, or reduces the flexibility of the New Melones 14 Project to control water quality, is detrimental to the 15 interests of the South Delta Water Agency. This position 16 is consistent with my earlier investigations of this topic 17 and my testimony presented previously to the State Water 18 Resources Control Board. 19 South Delta Water Agency believes that the San 20 Joaquin basin's water resources are already overdeveloped 21 to a degree that threatens the ability of existing projects 22 to control the water quality in the main stem of the San 23 Joaquin River especially in the lower reach and at 24 Vernalis. 25 Any reallocation of existing resources that would CAPITOL REPORTERS (916) 923-5447 8376 1 diminish flows at Vernalis below the net channel depletion 2 requirements of the agency, or would increase the salt load 3 and salinity of the flow above the target set to assure 4 productive agriculture, is contrary to the interests of the 5 agency. Water quality control measures need to be devised 6 that will ensure the integrity of Delta agriculture. 7 Thank you. 8 MR. HERRICK: As a final part here, which I forgot to 9 do at the beginning, Dr. Orlob, would you confirm that 10 South Delta Exhibit 10 is your statement of qualifications. 11 DR. ORLOB: Yes, it is. 12 MR. HERRICK: That concludes the direct from 13 Mr. Orlob. We're ready, again, to continue on the 14 cross-examination. 15 C.O. STUBCHAER: All right. We will do the 16 cross-examination of this panel. Let me give the order of 17 cross-examination, it's revised from previously. 18 First will be Mr. Jackson, as I understand, 19 because of the swap he made. Then Ms. Cahill, Mr. Sexton, 20 Mr. Birmingham can cross-examine Dr. Orlob's portion, 21 Mr. O'Laughlin presumably that's tomorrow morning, 22 Mr. Godwin, Mr. Brandt and Mr. Campbell. 23 Mr. Birmingham. 24 MR. BIRMINGHAM: I hate to throw another complication 25 into it and violate my New Year's resolution, but I have to CAPITOL REPORTERS (916) 923-5447 8377 1 leave today at noon for a meeting in Marysville this 2 afternoon. I wonder if I could cross-examine Dr. Orlob 3 tomorrow morning. 4 C.O. STUBCHAER: Tomorrow morning or right now. I 5 was just trying to -- 6 MR. JACKSON: I can do it this afternoon. 7 C.O. STUBCHAER: Okay. I was trying to give you a 8 little break, but if you want to -- 9 C.O. BROWN: After the break. 10 C.O. STUBCHAER: After the break. All right. 11 12-minute break. 12 (Recess taken from 10:29 a.m. to 10:44 a.m.) 13 C.O. STUBCHAER: Call the hearing back to order. 14 Mr. Birmingham, you were going to cross-examine Dr. Orlob 15 only, I take it? 16 MR. BIRMINGHAM: Yes. 17 C.O. STUBCHAER: Okay. How many seconds will you 18 need? 19 DR. ORLOB: Microseconds. 20 C.O. STUBCHAER: Nano. 21 ---oOo--- 22 CROSS-EXAMINATION OF SOUTH DELTA WATER AGENCY 23 BY WESTLANDS WATER DISTRICT 24 BY THOMAS BIRMINGHAM 25 MR. BIRMINGHAM: Dr. Orlob, my name is Tom CAPITOL REPORTERS (916) 923-5447 8378 1 Birmingham. I'm an attorney that represents the San Luis 2 and Delta-Mendota Water Authority and Westlands Water 3 District. And I have just a few questions for you. First, 4 with respect to Figure 1, which I believe is South Delta 5 Water Agency Exhibit 1. 6 MR. HERRICK: Correct. 7 MR. BIRMINGHAM: You have depicted on Exhibit 1 the 8 date on which the project of the San Luis River basin came 9 on line; that is correct? 10 DR. ORLOB: I think that's correct as far as the 11 indication of time there. 12 MR. BIRMINGHAM: Now, Figure 1 does not depict the 13 relative reduction in unimpaired -- or in flows in the San 14 Joaquin River attributable to each one of these projects, 15 does it? 16 DR. ORLOB: No, it doesn't. 17 MR. BIRMINGHAM: I'd like to turn to Figure 6, which 18 I presume is South Delta Water Agency Exhibit 6; is that 19 correct, Mr. Herrick? 20 MR. HERRICK: Correct. 21 MR. BIRMINGHAM: Again, Dr. Orlob, can you tell us 22 what is depicted on Figure 6? 23 DR. ORLOB: This figure shows the approximate 24 distribution of water quality for groundwaters within the 25 region over which the pumping wells have been distributed CAPITOL REPORTERS (916) 923-5447 8379 1 between the California Aqueduct and the highlands on the 2 east side of the valley. 3 MR. BIRMINGHAM: And you testified that as depicted 4 on Figure 6, generally groundwater to the west of the San 5 Joaquin River is of poorer quality than groundwater to the 6 east? 7 DR. ORLOB: That's what the figure shows. 8 MR. BIRMINGHAM: And Figure 5 of South Delta Water 9 Agency Exhibit 5 shows the location of groundwater wells in 10 an area of the San Joaquin Valley? 11 DR. ORLOB: Yes, that's true. 12 MR. BIRMINGHAM: Now, Dr. Orlob, you would agree, 13 won't you, that if imparted surface water is not available 14 to water users on the west side of the San Joaquin, those 15 water users would rely more on groundwater? 16 DR. ORLOB: I think that's what they do. 17 MR. BIRMINGHAM: And the imported surface water that 18 is received by water users on the west side of the San 19 Joaquin Valley is of better water quality than the 20 groundwater as depicted on South Delta Water Agency Exhibit 21 6? 22 DR. ORLOB: That's true. 23 MR. BIRMINGHAM: So if surface water imports -- let 24 me restate the question. 25 If surface water is no longer available to water CAPITOL REPORTERS (916) 923-5447 8380 1 users on the west side of the San Joaquin Valley as a 2 result of South Delta Water Agency's proposal that I 3 discussed a few moments ago with Mr. Hildebrand, that it 4 would result in more reliance on poorer quality 5 groundwater? 6 DR. ORLOB: Unless there's other alternative sources, 7 which I presume is not available. 8 MR. BIRMINGHAM: And that would result in the 9 discharge of poorer quality tailwater and tile water into 10 the San Joaquin River? 11 DR. ORLOB: Yes, it would if those tailwaters go 12 directly to the river. 13 MR. BIRMINGHAM: Well, we heard testimony that 14 tailwater and tile water from the -- from some of the areas 15 depicted on Figures 5 and 6 discharge into the San Joaquin 16 River. Are you aware of that? 17 DR. ORLOB: I'm aware that groundwaters and some 18 drainage water that is, perhaps, collected by tiles are 19 discharged to the San Joaquin River in that region. 20 MR. BIRMINGHAM: And so if water users rely more 21 heavily on poorer quality of groundwater, that would result 22 in a discharge of poorer quality groundwater into the San 23 Joaquin River? 24 DR. ORLOB: Less the reduction of quality of the 25 applied water will result in the corresponding change in CAPITOL REPORTERS (916) 923-5447 8381 1 the drainage water. 2 MR. BIRMINGHAM: Okay. Now, I'd like to ask you 3 about some questions about Figure 4. Figure 4, which is 4 South Delta Water Agency Exhibit 4; is that correct? 5 MR. HERRICK: Yes. 6 MR. BIRMINGHAM: Okay. Now, I believe you testified, 7 Dr. Orlob, that Figure 4 depicts the annual salt load in 8 the San Joaquin River measured at Vernalis? 9 DR. ORLOB: That is correct. 10 MR. BIRMINGHAM: I'd like to ask you about a couple 11 of the years that are depicted on Figure 4 and in 12 particular years that are prior to the operation of the 13 Central Valley Project. 14 Now, is it your understanding that 1940 was a year 15 prior to the construction of the Central Valley Project? 16 DR. ORLOB: That's correct, as I understand it. 17 MR. BIRMINGHAM: And what was the total salt load at 18 Vernalis in 1940? 19 DR. ORLOB: Well, let's see, looking in this case it 20 could have been on the order of about 1900 tons per year. 21 C.O. BROWN: 19 -- 22 MR. HILDEBRAND: Times a thousand. 23 DR. ORLOB: Times a thousand, that's a thousand tons. 24 MR. BIRMINGHAM: Let's compare that to a number of 25 years after the CVP went on line. For instance, 1972, what CAPITOL REPORTERS (916) 923-5447 8382 1 was the total salt load in the San Joaquin River in 1972? 2 DR. ORLOB: 600,000. 3 MR. BIRMINGHAM: So the salt load on the San Joaquin 4 River measured at Vernalis in 1940 prior to the operation 5 of the Central Valley Project was several times greater 6 than the salt load in 1972 after the operation of the 7 Central Valley Project? 8 DR. ORLOB: If we compare those two years there's 9 obviously a difference. 10 MR. BIRMINGHAM: And it's -- the salt load is smaller 11 in 1972? 12 DR. ORLOB: That's what they indicate. 13 MR. BIRMINGHAM: Now, it's correct, isn't it, that 14 load may not tell the whole story you also need, in terms 15 of water quality, you need to talk about concentrations? 16 DR. ORLOB: That's correct and also the flow 17 associated with that. 18 MR. BIRMINGHAM: So the year 1940 where there was a 19 relatively high salt load at Vernalis might be explained by 20 high flows? 21 DR. ORLOB: Not necessarily. High flows sometimes 22 give you a different picture, but that would be one 23 explanation. 24 MR. BIRMINGHAM: Well, in fact, 1940 was not a year 25 in which there were unusually high flows in the San Joaquin CAPITOL REPORTERS (916) 923-5447 8383 1 River; isn't that right, Dr. Orlob? 2 DR. ORLOB: I don't have that information in front of 3 me, but I accept your statement. 4 MR. BIRMINGHAM: So you would agree with me, 5 Dr. Orlob, that there are many years prior to the 6 construction of the Central Valley Project in which the 7 salt load measured at Vernalis was, in fact, greater than 8 the salt load measured at Vernalis after the construction 9 and operation of the Central Valley Project? 10 DR. ORLOB: Well, I think that you will find that 11 that is true in -- generally, in those first two decades, 12 that are salt loads that are occasionally higher than the 13 average, or even the lowest values in subsequent years. 14 There are differences, but since these are 15 dependent upon hydrology and the hydrology is quite 16 variable from year to year, it is a little difficult to 17 compare one year against the year -- 18 C.O. STUBCHAER: Excuse me, Dr. Orlob, could you move 19 the mic over in front of you so you can speak into it, 20 please. 21 DR. ORLOB: This mic here? 22 C.O. STUBCHAER: Yeah, when you look at 23 Mr. Birmingham the mic gets away from you. 24 MR. BIRMINGHAM: I am through. I've completed my 25 examination. CAPITOL REPORTERS (916) 923-5447 8384 1 C.O. STUBCHAER: Thank you, Mr. Birmingham. 2 Mr. Jackson. 3 ---oOo--- 4 CROSS-EXAMINATION OF SOUTH DELTA WATER AGENCY 5 BY THE REGIONAL COUNCIL OF RURAL COUNTIES 6 BY MICHAEL JACKSON 7 MR. JACKSON: Dr. Orlob, Mr. Hildebrand, my name is 8 Mike Jackson. I'm an attorney for Regional Council of 9 Rural Counties. Mr. Herrick, could you put up South Delta 10 Number 1, please. 11 Dr. Orlob, I believe that your testimony was that 12 based upon your review of the situation in the San Joaquin 13 Valley you have come to the conclusion that the system, 14 essentially, has an overcapacity of uses in it? 15 DR. ORLOB: Well, I believe storage capability within 16 the system exceeds the capacity of the system as to deliver 17 water. And we've reached a point where that water has been 18 allocated to use almost in its entirety. Perhaps, in some 19 years we have demands that far exceed the capability of the 20 project to deliver water. 21 MR. JACKSON: What kind of water years, in your 22 opinion, does the total demand exceed the total capacity? 23 DR. ORLOB: Generally, in drought years, below-normal 24 years, years like 1976 and '77, for example. 25 MR. JACKSON: So that would be below normal water CAPITOL REPORTERS (916) 923-5447 8385 1 years? 2 DR. ORLOB: Below normal or dry and critical. 3 MR. JACKSON: Dry and critical. 4 DR. ORLOB: '77 was a critical. 5 MR. JACKSON: All right. Now, I think that on South 6 Delta Number 1 you've grafted, essentially, the storage in 7 the San Joaquin basin; is that correct? 8 DR. ORLOB: That's correct. 9 MR. JACKSON: Now, you show a total of 8 million 10 acre-feet in storage for the cumulative capacity storage 11 capacity of the basin? 12 DR. ORLOB: That's right. 13 MR. JACKSON: There's more than that diverted, 14 however, is there not? Aren't there a lot of direct 15 diversions? 16 DR. ORLOB: I haven't accounted for all the direct 17 diversions, but there are quite a few of those along the 18 course of the east side streams. 19 MR. JACKSON: Do you know how much they would add to 20 the 8 million number? 21 DR. ORLOB: No, I don't. 22 MR. HILDEBRAND: May I? 23 MR. JACKSON: Yes, Mr. Hildebrand. 24 MR. HILDEBRAND: May I answer your question? 25 MR. JACKSON: Certainly. CAPITOL REPORTERS (916) 923-5447 8386 1 MR. HILDEBRAND: You seem to imply that storage is 2 added to diversion of quantity, but shouldn't you be 3 comparing the yield of these systems to the direct 4 diversions? 5 MR. JACKSON: Probably should, but in terms of the 6 storage I'm looking at, for instance, Millerton Lake, the 7 Central Valley Project, there is a small increment of 8 storage on this chart? 9 DR. ORLOB: Right. 10 MR. JACKSON: However, the diversions are much higher 11 than that, are they not? 12 DR. ORLOB: They are much higher. 13 MR. JACKSON: Do you know what the yield of that 14 project is? 15 DR. ORLOB: In terms of firm delivery from Millerton 16 Lake? 17 MR. JACKSON: Yes. 18 DR. ORLOB: I'm not sure what the exact number is, 19 but it's probably on the order of let's say 3 quarter 20 million acre-feet. 21 MR. JACKSON: Okay. 22 DR. ORLOB: Most of it goes to Tulare Lake basin. 23 MR. JACKSON: Most of it is an out of -- 24 DR. ORLOB: Extra basin transfer. 25 MR. JACKSON: An extra basin transfer? CAPITOL REPORTERS (916) 923-5447 8387 1 DR. ORLOB: Yeah. 2 MR. JACKSON: Are there extra basin transfers which 3 take place in the San Joaquin of this storage? 4 DR. ORLOB: Yes. Hetch-Hetchy, for example, a 5 diversion to San Francisco is an extra basin transfer 6 included. 7 MR. JACKSON: Are there other extra basin transfers 8 that you're aware of within the San Joaquin basins? 9 DR. ORLOB: Well, those are the only very significant 10 ones that I can recall, so I would say the answer is 11 probably not. 12 MR. JACKSON: All right. Now, have you reviewed how 13 often under the present circumstance New Melones Reservoir 14 is unable to meet the Vernalis water quality standards in 15 the months between May and September? 16 DR. ORLOB: I reviewed the recent history of storage 17 in New Melones, which, of course, coincides with its 18 capability to deliver water to satisfy the diversions, 19 diversion requirements from the system. For example, in 20 '92, '91/'92 the reservoir was down at relatively low 21 levels than would be -- under certain circumstances be 22 unable to meet its obligation to diverters. 23 MR. JACKSON: Have you reviewed any of the records 24 having to do with exceedances of the Water Quality Control 25 Plan? CAPITOL REPORTERS (916) 923-5447 8388 1 DR. ORLOB: Exceedances in what sense? 2 MR. JACKSON: In the sense in which the EC was over 3 the limit, or which the TDS was over the limit? 4 DR. ORLOB: Well, I have looked at those cases where 5 there was the inability of the project, or whatever 6 management scheme was being applied to meet the targets of 7 EC and flow at Vernalis. 8 MR. JACKSON: You have looked at those? 9 DR. ORLOB: Yes, I have. 10 MR. JACKSON: And there have been violation? 11 DR. ORLOB: There have. 12 MR. JACKSON: What kind of water years do they occur 13 in? 14 DR. ORLOB: Generally, very dry years. 15 MR. JACKSON: Dr. Orlob, you indicate that you 16 believe that a decrease in the consumptive use of water may 17 very well result in increases in the concentration of 18 salinity at Vernalis. Is that true? 19 DR. ORLOB: Well, a decrease in consumptive use in a 20 particular water would, essentially, mean that there would 21 be in the drainage water a higher quality of drainage 22 water. 23 MR. JACKSON: So I said it backwards, right? 24 DR. ORLOB: Well -- 25 MR. JACKSON: A decrease in consumptive use would CAPITOL REPORTERS (916) 923-5447 8389 1 result in -- 2 DR. ORLOB: In a -- well, not an increase, but more 3 favorable drainage water. 4 MR. JACKSON: All right. An increase in consumptive 5 use or agricultural efficiency could result in a decrease 6 in water quality in the return water; is that correct? 7 DR. ORLOB: Meaning an increase in total salts, yes. 8 C.O. BROWN: Question, Jim. 9 C.O. STUBCHAER: Yeah, Mr. Brown, I had the same 10 question. 11 C.O. BROWN: Okay. 12 C.O. STUBCHAER: About efficiency. 13 C.O. BROWN: You may want to ask that question again. 14 I don't think you meant to say what you said, Dr. Orlob. 15 Ask it again. 16 C.O. STUBCHAER: Could I -- yeah. You asked about 17 increase in agricultural efficiency and an increase in 18 consumptive use as one question. 19 MR. JACKSON: Then I withdraw that. 20 C.O. STUBCHAER: Yeah. 21 MR. JACKSON: Increase in agriculture in efficiency 22 can result in an increase in the concentration of salts in 23 the return water? 24 DR. ORLOB: That's correct. 25 MR. JACKSON: All right. So conservation in an CAPITOL REPORTERS (916) 923-5447 8390 1 agricultural sense can result in increased salinity in the 2 receiving waters? 3 DR. ORLOB: It depends to some extent on the 4 available dilution water, but that's in terms of the return 5 flow, and to the extent the return flow dominates the total 6 flow then that would be true. 7 MR. JACKSON: And in a situation in which, 8 essentially, the concentrations of the water at Vernalis 9 are a problem now in low-flow periods? 10 DR. ORLOB: Yeah. 11 MR. JACKSON: And the system has to your 12 understanding no additional yield to apply without taking 13 it from somebody in these low-flow years? 14 DR. ORLOB: That's true. 15 MR. JACKSON: So we've, essentially, reached a 16 zero-sum game, in order of meeting the Vernalis standard in 17 drought years? 18 DR. ORLOB: In drought years if there's not 19 sufficient water to mitigate the increase in salinity 20 within the river, then I would say that's true. 21 MR. JACKSON: Is it fair, then, to say that in below 22 normal years, dry and critically dry years on the San 23 Joaquin system, in order to meet the salinity standards of 24 the Water Quality Control Plan someone is going to have to 25 take a cut in their available water supply, in your CAPITOL REPORTERS (916) 923-5447 8391 1 opinion? 2 DR. ORLOB: Either that or allocate water of higher 3 quality from other sources through the San Joaquin River. 4 MR. JACKSON: Do you know any sources that could 5 allocate water to the San Joaquin River? 6 DR. ORLOB: Well, the only sources I am aware of 7 outside of New Melones itself is Stanislaus drainage. 8 There are other tributary streams, Tuolumne and the Merced. 9 MR. JACKSON: And the San Joaquin? 10 DR. ORLOB: And the San Joaquin itself to the extent 11 it's not already committed. 12 MR. JACKSON: Thank you, sir. 13 Mr. Hildebrand, calling your attention to your 14 testimony beginning at Page 9, you've indicated that, "The 15 operation of the CVP," this is in maintaining adequate flow 16 for riparian public trust needs, "that the operation of the 17 CVP resulted in an average annual decrease of flows at 18 Vernalis of 553,000 acre-feet," and I'll stop there. 19 What caused -- how did the CVP cause that decrease 20 in flows? 21 MR. HILDEBRAND: Primarily by the diversions from 22 Friant into the Tulare basin, which is water that 23 previously came down the river. 24 MR. JACKSON: Has anyone else contributed to the 25 decrease of flows that are included in the 553,000 CAPITOL REPORTERS (916) 923-5447 8392 1 acre-feet that you mention in this part of your testimony? 2 MR. HILDEBRAND: No, that was just the portion that 3 was due to the CVP. It does not purport to be the total 4 decrease. 5 MR. JACKSON: Has there been additional decrease? 6 MR. HILDEBRAND: Yes. We mentioned the Hetch-Hetchy, 7 the increase there -- I'm not sure of these numbers in my 8 recollection, but I think that pre-CVP they were diverting 9 something in the order of 50,000 acre-feet a year. And I 10 believe they're up to more like 350, 400,000 now. And 11 that, of course, is taken away from the flow in the river 12 down through the Delta. 13 MR. JACKSON: Now, calling your attention to your 14 testimony that begins at the bottom of Page 9, called 15 "Comparison of Alternatives," I'd like to ask you a few 16 questions about that testimony as it goes on to Page 10, 17 11, 12 and 13. 18 You have developed a flow alternative to compare 19 to the eight alternatives that the Board has in their EIR; 20 is that correct? 21 MR. HILDEBRAND: That's correct. 22 MR. JACKSON: Did you review the Board's EIR in order 23 to make the comparison? 24 MR. HILDEBRAND: Yes. 25 MR. JACKSON: In your review of the Board's EIR, did CAPITOL REPORTERS (916) 923-5447 8393 1 you find a range of alternatives that you believed was 2 complete in terms of ways of satisfying the Water Quality 3 Control Plan? 4 MR. HILDEBRAND: No. 5 MR. JACKSON: Why not, sir? 6 MR. HILDEBRAND: Well, in my testimony I didn't take 7 them one by one, but I indicated the provisions that would 8 be necessary to make them complete and indicated that each 9 of them failed in one or more of those methods in making it 10 complete. 11 MR. JACKSON: All right. Let's go through them. 12 Flow alternative number one is the no-project scenario; is 13 that correct? 14 MR. HILDEBRAND: Yes. 15 MR. JACKSON: What did you find that was incomplete 16 about that alternative in terms of meeting the standards of 17 the Water Quality Control Plan? 18 MR. HILDEBRAND: The -- in the current situation, 19 which is the base case, we do have violations of the 20 salinity standard at Vernalis. We do have times when the 21 flow at Vernalis is inadequate to meet the downstream 22 riparian and public trust rights. 23 We do not have the fish flows that are required to 24 meet the flow requirements as distinguished from salinity 25 requirements. It would not meet either the VAMP flows or CAPITOL REPORTERS (916) 923-5447 8394 1 the Water Quality Control Plan flows. 2 MR. JACKSON: Now, in your testimony on Page 10 you 3 indicate that your examination of flow alternative one, 4 that the Vernalis water quality objectives will not be met 5 in 40 percent of year types. 6 How did you determine that number, sir? 7 MR. HILDEBRAND: That 40 percent number is the number 8 that the Bureau came up within its own modeling as to the 9 consequence of proceeding with their Interim Operations 10 Plan at Vernalis, and that is even in the event that they 11 did not make water purchases, which are also proposed. 12 And the magnitude of the resulting lack of 13 compliance of the Vernalis standard were shown, also, in 14 the figures given by Dan Steiner which demonstrated that 15 the deficiencies under that plan which incorporated the San 16 Joaquin River plan which also incorporates both purchases 17 and the interim Bureau plan would result in violations of 18 the standard far beyond what we have had in the past, both 19 in frequency and in magnitude. 20 MR. JACKSON: Would that violation far beyond what 21 we've had in the past affect the water users in the South 22 Delta Water Agency? 23 MR. HILDEBRAND: Oh, absolutely. 24 MR. JACKSON: How? 25 MR. HILDEBRAND: It would mean that we would have a CAPITOL REPORTERS (916) 923-5447 8395 1 worsening of our salinity problems significantly from what 2 it has been. It would mean that we would have an increase 3 in the current deficiency, occasional deficiency of flow at 4 Vernalis to meet in the summertime the riparian and public 5 trust needs of the South Delta. 6 MR. JACKSON: What effect does increased salinity 7 have on an agricultural operation in the South Delta? 8 MR. HILDEBRAND: We presented a great deal of 9 testimony on that subject to the Board in a prior hearing. 10 I forget the date of it, not recently, although some of it 11 has been resubmitted. And we had a lot of information 12 including the information from the United Nations FAO 13 figures, research work on the relationship between crop 14 yields and salinity of applied water for different crops. 15 We showed that with the crops we have and with the 16 permeabilities we had, which affects our ability to leach 17 over applied water, that the effect on the crop yields was 18 very significant. How significant depends on how far you 19 exceed the salinity standard. 20 MR. JACKSON: Were -- 21 MR. HILDEBRAND: Even at the salinity standard we 22 indicate that -- the testimony indicated that there would 23 be some loss. Salinity standard was not adequate to return 24 the water quality to what it was pre-CVP. And as we've 25 discussed before, for example, this information that CAPITOL REPORTERS (916) 923-5447 8396 1 Dr. Orlob presented on water salt loads didn't address the 2 difference between salt loads that entered during high 3 flows at low salinities and salt loads that enter at 4 salinities above the salinity standard from drainage from 5 the west side. 6 MR. JACKSON: Were you present during the testimony 7 of the agricultural experts for Westlands Water District in 8 the earlier parts of this hearing? 9 MR. HILDEBRAND: I believe I was, but I'd have to be 10 refreshed a little bit on just what the general tenor of 11 their testimony was. 12 MR. JACKSON: Is it true that as the salinity goes up 13 the ability to grow certain crops decreases? 14 MR. HILDEBRAND: Oh, very much so. And -- 15 MR. SEXTON: Objection, Mr. Chairman. 16 C.O. STUBCHAER: Mr. Sexton? 17 MR. SEXTON: Mr. Chairman, I've been sitting here 18 listening to this and I was hoping that Mr. Jackson would 19 get off the subject, or Mr. Hildebrand would get off the 20 subject. This was Phase V testimony. 21 We presented, or South Delta presented 22 Mr. Hildebrand in Phase V. He had an opportunity to 23 present his direct testimony. He was cross-examined. We 24 put on rebuttal testimony to address those issues. And now 25 what's happening is he's having, yet, another bite of the CAPITOL REPORTERS (916) 923-5447 8397 1 apple to confuse the record and bring in information which 2 is absolutely contrary to rebuttal testimony that was 3 submitted by some experts with superior qualifications that 4 had done work in the San Joaquin Valley. And I object to 5 it, sir. 6 C.O. STUBCHAER: Mr. Jackson, I'm going to say 7 something and then I'll hear from you, of course. 8 MR. JACKSON: Sure. 9 C.O. STUBCHAER: The same thought was occurring to 10 me. We are back in items that were covered in Phase V, and 11 I was just looking at the key issues for this phase of the 12 hearing, Phase II-A. And I was trying to understand the 13 relevance of your questions to the issues at hand. 14 MR. JACKSON: I'd be glad to tell you what the 15 relevance is. The relevance is that we've established that 16 alternative one, the present operation, would cause 17 substantial salinity violations, which is a public trust 18 violation. 19 In order to show the balancing necessary for the 20 bare public trust violation, I have to show that there 21 would be impacts to certain parties. And that's what I'm 22 trying to do. 23 C.O. STUBCHAER: The impacts of increased salinity on 24 the agricultural operations in the South Delta was covered 25 at some length, I believe, in a previous phase. CAPITOL REPORTERS (916) 923-5447 8398 1 MR. JACKSON: Yes, sir, but it was not connected to 2 the reason that one of the alternatives would not be 3 appropriate because it violates the public trust. 4 C.O. STUBCHAER: It seems to me that you could refer 5 to that previous testimony in preparing your closing 6 arguments, or closing statement, and that you could elicit 7 information, perhaps, having to do with the impact of the 8 San Joaquin River Agreement, or in the absence of the San 9 Joaquin River on the water quality without getting into 10 impacts in the decrease of quality. 11 MR. JACKSON: If you say so, sir. 12 C.O. STUBCHAER: I think it would help streamline the 13 process and help me to be in the position to grant you the 14 additional time that you require. 15 MR. JACKSON: All right. Mr. Hildebrand, calling 16 your attention to flow alternative two, you indicate that 17 on Page 1 of your testimony in the third paragraph that you 18 designed your comprehensive plan with flow alternative two 19 as the base for the plan; is that right? 20 MR. HILDEBRAND: I guess you could say it's a 21 combination of two and six. 22 MR. JACKSON: All right. Where you say on the first 23 page that, "This proposal has generally flow alternative 24 two, USBR and DWR being responsible for the '95 Plan 25 obligations," in what ways is it consistent, is your CAPITOL REPORTERS (916) 923-5447 8399 1 comprehensive plan consistent with flow alternative two? 2 MR. HILDEBRAND: In that we do put the burden on the 3 two projects to correct the impacts of those projects which 4 are predominantly by USBR rather than DWR. 5 MR. JACKSON: Do you basically think that that is the 6 appropriate thing to do, that the USBR and DWR be 7 responsible for the plan objectives? 8 MR. HILDEBRAND: I think it's generally accepted that 9 the -- a party that causes a problem should mitigate that 10 problem. They're the primary, almost total cause of the 11 problems we're having. 12 MR. JACKSON: To your knowledge and within your range 13 of involvement in Delta activities have they in the past 14 been responsible for meeting Bay-Delta obligations? 15 MR. HILDEBRAND: Well, on occasion. For example, the 16 Patterson District sued the Bureau soon after the CVP went 17 into operation for degrading their water quality. And 18 there was a settlement of that suit which provided the 19 Patterson District with a block of free water to offset 20 that and also the privilege of buying additional water at a 21 favorable price. 22 MR. JACKSON: Who is presently responsible for 23 meeting the 1995 Plan objectives? 24 MR. HILDEBRAND: Let's separate salinity from flow. 25 MR. JACKSON: All right. Who is responsible for CAPITOL REPORTERS (916) 923-5447 8400 1 flow? 2 MR. HILDEBRAND: In the case of flow for the purpose 3 of this proceeding is for the Board to determine who is 4 responsible for that flow, but it would appear to me that 5 to the extent that lack of adequate flow is caused by the 6 Central Valley Project, it is their obligation to correct 7 that to the degree that's necessary. 8 In the case of salinity it appears to me the 9 burden is almost entirely on the CVP and, there, again, as 10 far as meeting the present salinity standard, which is 11 still above what we would have in the absence of the CVP, I 12 see no reason why they shouldn't be totally responsible. 13 MR. JACKSON: Then what is, in your opinion, 14 defective about flow alternative number two? Why don't you 15 think that's the right way to go -- let me withdraw the 16 question. 17 Why do you, then, not believe that flow 18 alternative number two is the right way to go? 19 MR. HILDEBRAND: Well, as I recall it, and it's been 20 some time since I've been over the DEIS, I don't think that 21 the alternative two as it was modeled by the State Board 22 and for the State Board staff did, indeed, provide the 23 flows of the salinity control that we're discussing. 24 MR. JACKSON: If it did provide the flows that were 25 required and was modeled to provide those flows, would you, CAPITOL REPORTERS (916) 923-5447 8401 1 then, support alternative two? 2 MR. HILDEBRAND: Probably. 3 MR. JACKSON: Calling your attention to flow 4 alternative three, did you evaluate flow alternative three 5 in your comparison between that alternative and the others? 6 MR. HILDEBRAND: Seems to me the problem with 7 alternative three is that it places the burden for 8 correcting, for example, the salinity caused by CVP on 9 parties that didn't cause the salinity problem. And it 10 doesn't seem proper to me. 11 MR. JACKSON: Did you compare alternative four, flow 12 alternative four with the other alternatives? 13 MR. HILDEBRAND: Well, alternative four gets into 14 this business of whether the diversions from Friant are in 15 basin or out of basin and that sort of thing, and it didn't 16 appear to me to actually put the burden on the Bureau for 17 correcting the impact caused by the Bureau's operations. 18 MR. JACKSON: Are you familiar with the hydrology of 19 the San Joaquin River? 20 MR. HILDEBRAND: Yes. 21 MR. JACKSON: Are you familiar with the watershed of 22 the San Joaquin River? 23 MR. HILDEBRAND: Yes. 24 MR. JACKSON: Is the place of use in the Friant and 25 Kern Canal in the San Joaquin River watershed or not? CAPITOL REPORTERS (916) 923-5447 8402 1 MR. HILDEBRAND: It is not. 2 MR. JACKSON: Is the place of use of the San 3 Francisco facilities on the Tuolumne River inside the 4 watershed of the San Joaquin River or not? 5 MR. HILDEBRAND: It is not. 6 MR. JACKSON: Calling your attention to flow 7 alternative five, did you compare flow alternative five 8 with the other alternatives in the State Board EIR? 9 MR. HILDEBRAND: Again, in the case of alternative 10 five you're putting the burden on tributary water right 11 holders for correcting a salinity and flow problem which 12 was caused by the CVP. 13 MR. JACKSON: In your review of flow alternative 14 five, does it include flows over and above that indicated 15 as necessary to meet the salinity requirement? 16 MR. HILDEBRAND: Would you say that, again, please? 17 MR. JACKSON: Yes. In your review of flow 18 alternative five, were you able to determine that flow 19 alternative five provides flows in excess of the amount 20 necessary to meet the salinity standard at Vernalis? 21 MR. HILDEBRAND: Are you talking about meeting the 22 salinity standard, or salinity and flow standard? 23 MR. JACKSON: I was talking about meeting the 24 salinity standard first. 25 MR. HILDEBRAND: Well, there again, I don't think CAPITOL REPORTERS (916) 923-5447 8403 1 it's an obligation of the tributary water right holders to 2 meet the salinity standard. 3 MR. JACKSON: Were you able to determine whether or 4 not even if the obligation were placed upon them that flow 5 alternative five supplies more water than would be 6 necessary to meet the salinity standard? 7 MR. HILDEBRAND: I don't think I made that specific 8 analysis. 9 MR. JACKSON: All right. Did you review flow 10 alternative six in the State Board's EIR? 11 MR. HILDEBRAND: Yes. 12 MR. JACKSON: Did you find it to be an accurate 13 reflection of the recirculation idea proposed by the South 14 Delta Water Agency? 15 MR. HILDEBRAND: It's a little different in that it 16 seemed to us that it's possible to hook up a comprehensive 17 plan to correct all these problems in a manner that honors 18 all the water rights concerned and does not take water away 19 from either the tributary people or the contractors. And 20 the recirculation plan proposed by the staff does not meet 21 that test. 22 MR. JACKSON: Did you have an opportunity to take a 23 look at flow alternative seven? 24 MR. HILDEBRAND: Yes, but I think that one has been 25 superseded, because I believe that the Letter of Agreement CAPITOL REPORTERS (916) 923-5447 8404 1 referred to there has been superseded. 2 MR. JACKSON: All right. Now, calling your attention 3 to flow alternative eight, which is the San Joaquin River 4 Group Authority's alternative, did you have an opportunity 5 to review that alternative and compare it to the other 6 alternatives in the State Board EIR? 7 MR. HILDEBRAND: Yes, I did. And that's more 8 specifically covered in my written report than was the case 9 of comparison with these other alternatives. 10 MR. JACKSON: And why is that, sir? 11 MR. HILDEBRAND: Because it seemed to be the main 12 subject of this proceeding to determine whether or not that 13 was an alternative that was both acceptable and made a 14 reasonable use of water and did not cause downstream 15 damage. 16 MR. JACKSON: In your review of the State Board's 17 alternatives and your comparison of those alternatives with 18 flow alternative number eight, does the San Joaquin River 19 Agreement meet the water quality -- the flow requirements 20 of the water quality standards of the water quality plan at 21 all times of the year? 22 MR. HILDEBRAND: Definitely not. 23 MR. JACKSON: Are the flows in alternative eight the 24 lowest of all of the flows in the alternative proposed? 25 MR. HILDEBRAND: I believe that's right. I'd have to CAPITOL REPORTERS (916) 923-5447 8405 1 think about that a little bit. I assume you're talking 2 about flows in the years where the minimum flow is 3 provided. 4 MR. JACKSON: Yes. There are -- there are -- there's 5 a 3200 csf flow -- 6 MR. HILDEBRAND: But the agreement doesn't always 7 provide that. 8 MR. JACKSON: So in some years there would be lower 9 flows than 3200 feet if the San Joaquin River Agreement was 10 accepted? 11 MR. HILDEBRAND: That's right. 12 MR. JACKSON: If those low flows happened during the 13 time of May to September, would that have affects on the 14 farmers within the South Delta Water Agency? 15 MR. HILDEBRAND: Yes. The affect of the San Joaquin 16 River plan is to shift water releases from those -- that 17 period of time when we have the greatest need for both 18 quality and quantity and use that water then to meet the 19 pulse flow. 20 MR. JACKSON: Thank you very much. No further 21 questions. 22 C.O. STUBCHAER: Thank you, Mr. Jackson. 23 Ms. Cahill. 24 MS. CAHILL: Hearing Officer Stubchaer, in the 25 original shuffling of the cards I was to follow CAPITOL REPORTERS (916) 923-5447 8406 1 Mr. O'Laughlin. If I still could, I think my questions 2 would be very short. If I could still go after him, I 3 think that would ultimately save people time. 4 C.O. STUBCHAER: I just swapped Mr. O'Laughlin and 5 Mr. Jackson. I didn't do the whole stack. 6 Mr. Sexton, are you prepared to cross-examine? 7 MR. SEXTON: Yes, Mr. Chairman. 8 MS. CAHILL: Thank you. 9 C.O. STUBCHAER: Good morning. 10 MR. SEXTON: Good morning, Mr. Chairman. 11 Mr. Chairman, my questions will be directed only at 12 Dr. Orlob. 13 ---oOo--- 14 CROSS-EXAMINATION OF THE SOUTH DELTA WATER AGENCY 15 BY THE SAN JOAQUIN RIVER EXCHANGE CONTRACTORS 16 BY MICHAEL V. SEXTON 17 MR. SEXTON: Dr. Orlob, good morning. My name is 18 Michael Sexton and I represent the Exchange Contractors. 19 DR. ORLOB: Yes, sir. 20 MR. SEXTON: Dr. Orlob, in reading your resume it 21 appears that most of your experience with respect to 22 modeling centers is on lakes and coastal waters rather than 23 the river; is that correct? 24 DR. ORLOB: Well, I think in recent times it's been 25 more allocated to rivers and the systems, reservoirs and CAPITOL REPORTERS (916) 923-5447 8407 1 river systems. Prior to, oh, let's say five or six years 2 ago it was largely focused on estuarian systems of which 3 you know the San Joaquin Delta is one. So it's a 4 combination of both. I don't think there's any particular 5 focus, but at the present time it's different than my 6 experience over the full period. 7 MR. SEXTON: Could you summarize, let's say, in the 8 last five or six years the work that you've done relating 9 to modeling of river systems, specifically the San Joaquin 10 River or its tributaries? 11 DR. ORLOB: I have examined -- or I have developed a 12 salt balance model for the San Joaquin system which was 13 primarily a thesis project of one of my graduate students 14 of about four years ago, we applied it preliminarily. We 15 have not continued to develop that particular model. 16 We have -- I have in similar context worked with 17 that class of problems on the Sacramento River system and 18 its tributaries, but not tributaries of the San Joaquin 19 system. 20 MR. SEXTON: The data that you used to compute your 21 salt balance model for the San Joaquin River system, could 22 you explain the data that you used? 23 DR. ORLOB: Yeah. I have access under arrangement 24 with the U.S. Bureau of Reclamation to monthly reports of 25 both flows and qualities to TDS and EC that have been CAPITOL REPORTERS (916) 923-5447 8408 1 submitted to me. And I have a collection of those dating 2 back to the, oh, I guess the mid '70s on a monthly basis. 3 And those are for stations such as Vernalis, Victoria 4 Canal, Rio Vista and so on throughout the Delta. So I have 5 that body of data in my own files. 6 MR. SEXTON: Okay. Was any of the data you used 7 drawn from the work that was done by the San Joaquin 8 Drainage Program? 9 DR. ORLOB: Not so far as I'm personally aware. I'm 10 familiar with that program, but I haven't tapped into the 11 database for that program. 12 MR. SEXTON: Correct me if I'm wrong, sir, my 13 understanding is the San Joaquin Drainage Program work is 14 probably the most up-to-date work on salt modeling, salt 15 balance issues related to the San Joaquin River; is that 16 not correct? 17 DR. ORLOB: It would certainly be among the most 18 prominent efforts. 19 MR. SEXTON: But you didn't use that data? 20 DR. ORLOB: I haven't used any specific data from 21 that project. I was at one time associated with a task 22 force or task group that contributed to the development of 23 the early stage of the report that came out of that 24 program. 25 MR. SEXTON: Dr. Orlob, the introductory paragraph of CAPITOL REPORTERS (916) 923-5447 8409 1 your testimony, South Delta 34 -- and I apologize. I'm 2 going to be referring to South Delta 34, I didn't receive 3 34-A, what I understand is, perhaps, they're very similar. 4 So if, John, if I stray off between 34 and 34-A, please, 5 correct me, but I'm referring now to 34. And there's an 6 introductory paragraph entitled "General Concerns." 7 DR. ORLOB: Yes. 8 MR. SEXTON: It appears that your concern with 9 respect to South Delta's water quality -- excuse me, let me 10 rephrase that. 11 It appears that what you are concerned about is 12 South Delta's water supply not Delta is water quality; is 13 that correct? 14 DR. ORLOB: Well, I'm concerned with water supply 15 that is available to the South Delta at Vernalis, for 16 example, but also the quality of that water as its 17 delivered to that point influenced by anything that would 18 take place upstream. So both quality and quantity are 19 issues. 20 MR. SEXTON: But you haven't specifically looked at 21 water quality issues downstream of South Delta's diversion 22 points in the Delta, have you? 23 DR. ORLOB: Downstream of South Delta's diversion 24 points -- 25 MR. SEXTON: Yeah. CAPITOL REPORTERS (916) 923-5447 8410 1 DR. ORLOB: -- which, of course, are the lands of the 2 South Delta Water Agency? 3 MR. SEXTON: Yes. 4 DR. ORLOB: I have in other context, but not 5 specifically with respect to this particular proceeding. 6 MR. SEXTON: So in preparation of your testimony that 7 you're delivering now on Phase II-A you weren't asked to 8 look at water quality issues relating to South Delta's use 9 of water? 10 DR. ORLOB: I'm not quite sure what you're asking in 11 terms of issues. I have, let's say, continually over the 12 period of my association with the South Delta Water Agency, 13 looked at problems of water quality and quantity within the 14 Delta, within the water agency itself. It's not -- I did 15 not include those assignments, specifically, in preparation 16 of this particular testimony. 17 MR. SEXTON: And, in fact, the only assignment you 18 were given in preparation of this particular testimony was 19 to evaluate the potential impacts on water quality and 20 flows at Vernalis? 21 DR. ORLOB: I would say that's a fair statement. 22 MR. SEXTON: What work did you actually do in 23 preparing your testimony for this phase of the proceeding? 24 DR. ORLOB: I reviewed, as I already indicated, the 25 historic situation as far as flows and qualities are CAPITOL REPORTERS (916) 923-5447 8411 1 concerned for the river at Vernalis. I examined the both 2 daily and monthly variations in quality flow at Vernalis 3 over the period, I think primarily the period from about 4 '87 to '96 that included a drought period. I think that's 5 the sum of what the data was that I actually looked at. 6 MR. SEXTON: John, could you put up South Delta 2, 7 please? 8 Dr. Orlob, when I look at South Delta 2, the 9 Exchange Contractors' diversions don't appear to be shown. 10 Is there a reason for that? 11 DR. ORLOB: I'm sorry, what was your question again? 12 MR. SEXTON: I don't see anything that seems to take 13 into account the Exchange Contractors' diversions. 14 DR. ORLOB: These are only diversions directly from 15 the river systems to supply these irrigation districts as 16 reported in the U.S. Geological Survey data summaries for 17 historic diversions to these irrigation districts. 18 MR. SEXTON: The districts you have included, it 19 appears, diversions on the Madera Canal and the Friant Kern 20 Canal out of the Friant system? 21 DR. ORLOB: I included those as a part of diversions 22 from the site of water sources. 23 MR. SEXTON: You're aware that up to until 1951 the 24 Exchange Contractors were receiving their diversions of 25 water directly off the San Joaquin River? CAPITOL REPORTERS (916) 923-5447 8412 1 DR. ORLOB: Until 1951, is that what you said? 2 MR. SEXTON: That's correct. 3 DR. ORLOB: That's correct. 4 MR. SEXTON: But you don't have their flows indicated 5 on this data anywhere? 6 DR. ORLOB: No, I don't. 7 MR. SEXTON: And you're familiar that since the 8 Exchange Contractors have received water through the 9 Delta-Mendota Canal since approximately 1951 there were 10 years when they take substantial quantities of water 11 directly off the San Joaquin River? 12 DR. ORLOB: I assume that that's true. I do have a 13 record of the history of diversions through the 14 Delta-Mendota Canal to the service areas of the DMC over a 15 comparable period like this one. I have used that 16 previously in assessing the importation of water quantity 17 and quality associated with it over that entire -- 18 C.O. STUBCHAER: Mr. Orlob -- Dr. Orlob? 19 DR. ORLOB: Yes, sir. 20 C.O. STUBCHAER: The parties in the back can't hear. 21 DR. ORLOB: I'm sorry. I was a little too far back. 22 MR. SEXTON: Is there a specific reason, sir, for the 23 preparation of South Delta 2 that the Exchange Contractors' 24 diversions were not included? 25 DR. ORLOB: No, there was no specific intent. I just CAPITOL REPORTERS (916) 923-5447 8413 1 merely wanted to show the historic trend of diversions 2 within the basin of these specific entities. 3 MR. SEXTON: In South Delta 34, under Roman II, which 4 indicates -- that's the paragraphs entitled "Specific 5 Concerns," at the end of subparagraph one you have a 6 sentence that says, "Accordingly, irrigated areas expanded 7 diversions increased, see Figure 2, consumptive use by 8 crops increased and in response to the season pattern of 9 regulated flows, tailwaters convey residual salt loads 10 downstream in the irrigation season." 11 Do you see that, sir? 12 DR. ORLOB: Yes. 13 MR. SEXTON: Well, it's not unusual, is it, for 14 agricultural use to result in salt loads being conveyed in 15 either agricultural drain water, or tailwater leaving an 16 irrigation system, is it? 17 DR. ORLOB: No, it's not. It's a normal process. 18 MR. SEXTON: And, in fact, the same process occurs 19 within South Delta? 20 DR. ORLOB: There are return flows, drainage flows as 21 well as diversions from the South Delta, areas from the 22 South Delta lands. 23 MR. SEXTON: What is the approximate quality of the 24 water that is diverted by South Delta? 25 DR. ORLOB: It varies depending on the location CAPITOL REPORTERS (916) 923-5447 8414 1 within the lands of the South Delta. Some -- on some 2 occasions it can be as low as 100 milligrams per liter. On 3 the west side of the Old River, excuse me, that is 4 conveying water toward the export pumps, the northern 5 limits may be of the same general quality, but in the lower 6 areas near Vernalis it would be a quality similar to that 7 entering the system at that point. 8 MR. SEXTON: Which would be approximately 500 9 milligrams per liter? 10 DR. ORLOB: Well, that's the target intended for the 11 operation of that order. 12 MR. SEXTON: And the discharge of water when it 13 leaves South Delta system after irrigation is approximately 14 four times the salt of the receiving waters; isn't that 15 correct? 16 DR. ORLOB: That depends on the efficiency of 17 irrigation that's being applied at that particular 18 location. It could be depending on how efficient the 19 irrigation is; if it's at 80 percent, that would be a 20 number that would be approximately correct. 21 MR. SEXTON: Okay. And 80 percent is a relatively 22 accurate number for South Delta's irrigation; isn't that 23 right? 24 DR. ORLOB: I assume it is. I'm not quite sure that 25 we have information that would say exactly what it is, but CAPITOL REPORTERS (916) 923-5447 8415 1 it should be good irrigation practice would be in that 2 order. 3 MR. SEXTON: Okay. So if South Delta's irrigation 4 practice is approximately 80-percent efficiency and it 5 would be approximately 500 TDS water once it passes 6 Vernalis, then the discharge from South Delta's system 7 normally would be approximately 2,000 TDS; am I right? 8 DR. ORLOB: It could on some locations. 9 MR. SEXTON: Dr. Orlob -- 10 C.O. BROWN: Question, Mr. Chairman. 11 C.O. STUBCHAER: Excuse me, Mr. Sexton. 12 MR. SEXTON: Yes. 13 C.O. STUBCHAER: Question from Mr. Brown. 14 C.O. BROWN: Is there subsurface drainage in the 15 South Delta? 16 DR. ORLOB: I think there are in some locations, but 17 I'm not familiar with the physical system as well as, 18 perhaps, Mr. Hildebrand. 19 MR. HILDEBRAND: There are some, Mr. Brown, not 20 extensive in acreage, but there's some in the New Jerusalem 21 District. And there's a few walnut orchards down in the 22 Union Island, Roberts Island area. It's not an extensive 23 situation but it does exist. I would have to disagree a 24 little bit with my colleague, Dr. Orlob, about this 25 80-percent efficiency. I don't think they even manage to CAPITOL REPORTERS (916) 923-5447 8416 1 do that very consistently in Westlands Water District -- 2 MR. SEXTON: Mr. Chairman, I object. I wasn't posing 3 any questions to Mr. Hildebrand. As I stated in my 4 objection, Mr. Hildebrand had the opportunity to testify 5 during Phase V on this subject. 6 C.O. STUBCHAER: All right. 7 C.O. BROWN: Mr. Chairman, the extent of my question 8 is without extensive subsurface irrigation and just with 9 tailwater drainage. I want to ask the question, again: 10 Do you still expect the drain water to be up in 11 the neighborhood of 2,000 parts per million? It seems 12 awfully high. 13 DR. ORLOB: Well, that was on the presumption that 14 we're using water, applied water at 500 milligrams per 15 liter and using -- using 80-percent irrigation efficiency, 16 that would be applicable to a few locations in the southern 17 portion of the South Delta. But as you go farther north it 18 would be much less simply because the water quality is less 19 and depending on the irrigation efficiency it could be -- 20 it could be that the drainage water would be substantially 21 better quality. 22 I found, for example, in reviewing information on 23 water application and drainage that the average of 60 24 percent might be appropriate in some locations. But I 25 think I was being charitable to the agriculture as far as CAPITOL REPORTERS (916) 923-5447 8417 1 that they could operate it at 80-percent efficiency which 2 is usually thought to be desirable. 3 C.O. BROWN: Is the subsurface drainage fairly 4 permeable, or is it tight subsoil? 5 DR. ORLOB: Well, it's a wide variety of soil types 6 in the system, but it is usually types so that they can 7 maintain spud ditches and drainage facilities and not the 8 inside of levees and then pump those on occasion into the 9 receiving waters adjacent to the land being irrigated. 10 C.O. BROWN: Did you take into consideration leaching 11 factors and salts down past the root zone for the total of 12 those salts? 13 DR. ORLOB: Well, of course, in a close system those 14 salts ultimately get into the drainage ditches and are 15 exported from the drained area. We have studies of 16 drainage efficiency and penetrating leaching factors within 17 the Delta, have done a bit of observation for the salinity 18 profiles and the soil profiles. 19 C.O. BROWN: Thank you, Mr. Chairman. 20 C.O. STUBCHAER: Mr. Sexton, I have a comment, that 21 is, that it occurs to me that the same objection that you 22 used against Mr. Jackson could be used against you in 23 reopening this issue of discharge of drainage water from 24 the -- I was going to say pollers, that's the term, from 25 the islands, the leveed islands. CAPITOL REPORTERS (916) 923-5447 8418 1 MR. SEXTON: I did think about that when I made the 2 objection, Mr. Chairman. The objection was focused only on 3 the testimony delivered by Mr. Hildebrand. 4 You may recall that during Phase V I tried to 5 bring in some testimony relating to testimony that had been 6 rendered by Dr. Orlob in a deposition. And I was told that 7 I couldn't do so, because Dr. Orlob was not present during 8 Phase V, and I would have the opportunity to question him 9 on this subject when he actually delivered that testimony. 10 C.O. STUBCHAER: Okay. Proceed. 11 MR. SEXTON: Thank you, Mr. Chairman. 12 MR. JACKSON: For the record, Mr. Stubchaer -- 13 C.O. STUBCHAER: Mr. Jackson. 14 MR. JACKSON: Since Dr. Orlob was not here during 15 Phase V and that is the excuse that we're now using to 16 cross-examine him, there is no difference in the two 17 rulings, the two situations. I do not believe that he 18 should be able to ask these questions. 19 C.O. STUBCHAER: All right. Mr. O'Laughlin. 20 MR. O'LAUGHLIN: Thank you. Just so it's clear, the 21 San Joaquin River Group is going to do extensive 22 cross-examination of both -- 23 MR. NOMELLINI: Can't hear you. 24 MR. O'LAUGHLIN: I'm sorry, Mr. Nomellini. We're 25 going to do extensive cross-examination of South Delta CAPITOL REPORTERS (916) 923-5447 8419 1 Water Agency, both Mr. Hildebrand and Dr. Orlob on the 2 question of water use and impacts on the South Delta Water 3 Agency, specifically in relation to water quality. 4 Our assertion is that they're saying they're going 5 to be damaged by the San Joaquin River Agreement and by 6 other things and we want to explore the extent and measure 7 the scope of that damage by use of our alternative. So we 8 will be looking to establish baseline criteria and facts 9 from which to come from. 10 So I didn't participate in Phase V in the little 11 dance you guys had going on the west side about salinity 12 and selenium, but we're clearly going to be involved with 13 the South Delta Water Agency. So I would not like my 14 testimony -- cross-examination limited in any way, shape, 15 or form to Mr. Orlob in that regard. 16 C.O. STUBCHAER: I recognize that it's difficult to 17 draw the distinction between phases, but I think 18 Mr. Jackson has a point. 19 Mr. Sexton is going to be allowed to pursue this 20 line of questioning. We should allow Mr. Jackson to come 21 back up and change the ruling on your objection to his 22 questioning. 23 MR. SEXTON: If the Chair does that, and obviously 24 that's something within your purview, the result will be as 25 I mentioned during my objection, that Mr. Hildebrand will CAPITOL REPORTERS (916) 923-5447 8420 1 likely continue to render testimony much along the same 2 lines as he did during Phase V. 3 And the result will be that we will then be 4 compelled to put on rebuttal testimony as we did in Phase 5 V, and I'm afraid it will be extensive, once again, to 6 clarify the record, because our hydrologists certainly did 7 not agree with the testimony that Mr. Hildebrand renders on 8 many of these subjects. 9 So, unfortunately, it's very difficult when you're 10 in a later phase and the Board starts to hear, once again, 11 the same sort of old testimony that has been rehashed 12 before, and whether it's accurate or not, I'm not 13 absolutely sure, but I will certainly want to put on 14 rebuttal testimony to clarify the record on that item. 15 C.O. STUBCHAER: I could apply the same line of 16 reasoning to the soil scientists who testified as to the 17 drainage from the islands as it compared with Dr. Orlob who 18 I think you've established is not a soil scientist and 19 we'll have to be consistent, I think, if we do. 20 Mr. Jackson, did you want to say something? 21 MR. JACKSON: All I wanted to say is that basically I 22 can ask if you're going to change the ruling, I can do this 23 when everybody is through with all of their own 24 examination. I don't have to interrupt Mr. Sexton's. But 25 I would prefer to do that sometime late today, I still CAPITOL REPORTERS (916) 923-5447 8421 1 have -- or tomorrow morning I still have to be out of 2 here -- 3 MR. O'LAUGHLIN: They wouldn't be here this 4 afternoon. 5 MR. JACKSON: They would not be here. 6 MR. O'LAUGHLIN: We're doing DWR and DOI this 7 afternoon. 8 C.O. STUBCHAER: Any other comments before we go off 9 the record for a moment? Okay, off the record. 10 (Off the record from 11:54 a.m. to 11:55 a.m.) 11 C.O. STUBCHAER: Okay. Back on the record. 12 Mr. Sexton, we'll see how the line of questioning 13 goes from here on and then I'll make a further ruling on 14 whether or not Mr. Jackson should requestion. 15 MR. SEXTON: Thank you, Mr. Chairman. 16 C.O. STUBCHAER: And you've heard the discussion, 17 Mr. Sexton, so you know what our spirit of our intentions 18 is. 19 MR. SEXTON: Dr. Orlob, do you remember having your 20 deposition taken on June the 16th? It was taken in 21 Stockton, Mr. O'Laughlin did the questioning. 22 DR. ORLOB: Yes, I remember. 23 MR. SEXTON: I'd like to read from your deposition 24 transcript starting on Page 35. Question, this is Page 35 25 starting on Line 15, CAPITOL REPORTERS (916) 923-5447 8422 1 (Reading): 2 "Question, Well, looking at South Delta Water 3 Agency Exhibit Number 22, I added up the total 4 numbers and it's -- ballpark, around 400,000 5 acre-feet of total use for South Delta Water 6 Agency. If that is the number, ballpark, of 7 water applied in South Delta Water Agency, how 8 much is your estimation of return flow back to 9 the system or drainage? 10 "Answer, Well, again, I would have to -- let's 11 see, 120,000 acres in consumptive use on the 12 average could be the order of 2 and a half 3 13 acre-feet per acre. If you take 100 times 2 14 and a half you have, what, 300,000. 15 "Question, Right. 16 "Answer, And the difference between the total 17 amount and the 300,000 would essentially be 18 water that would be returned as drainage if it 19 were not used in some way, roughly speaking. 20 Irrigation efficiency for, you know, good 21 agriculture with adequate drainage is probably 22 -- should be in the range of, say, 75 percent or 23 something like that, could be higher but 24 probably not as low as 50 percent. 25 "Question, so somewhere between 50 and 75 CAPITOL REPORTERS (916) 923-5447 8423 1 percent, in the ballpark? 2 "Answer, Good drainage lands do much better than 3 that." 4 Then, Mr. Herrick, 5 (Reading): 6 "You want me to offer some clarification or jog 7 his memory?" 8 Mr. O'Laughlin, "Sure, if you want to, go 9 ahead." 10 Mr. Herrick's comment, beginning Page 36, Line 19, 11 (Reading): 12 "I believe those channel depletion amounts are 13 in the inflow required with the barriers so 14 that there's enough for use and also that 15 includes water level, I believe. In other 16 words, you could come up with a number which is 17 just what the crops need, but you couldn't pull 18 it out -- you couldn't pull it out of the canal. 19 So my recollection is that's part of the -- that 20 was derived from the calculations for the 21 barrier program. And that has those other 22 things in it. It's not just they're consuming 23 that much, but you have a certain flow with the 24 barriers in order to have a certain level of 25 water." CAPITOL REPORTERS (916) 923-5447 8424 1 Mr. O'Laughlin, 2 (Reading): 3 "What is the quality of the surface drain water 4 that goes back to the system? 5 "Answer, Well, again, that depends on the 6 irrigation efficiency, but if you had an 7 irrigation efficiency of 75 percent with 8 one-quarter of the water being returned but 9 carrying all of the salts, you have a 10 multiplication of about four times over the 11 applied water. 12 "And if the applied water quality is 500 TDS, 13 which would be a target, let's say, for Vernalis 14 the irrigation drainage return water could be 15 2,000, roughly speaking. 16 "Question, Has South Delta Water Agency, to your 17 knowledge, done any study of its drain water 18 back to the system for water quality purposes? 19 "Answer, You mean internally within" -- 20 Then it trials off. 21 "Question, Yes. 22 "Answer, As far as I'm aware, no, only in the 23 broad general sense." 24 And that takes the transcript up to Page 37, Line 25 22. CAPITOL REPORTERS (916) 923-5447 8425 1 C.O. STUBCHAER: Is that a good spot to break for 2 lunch? 3 MR. SEXTON: Yes, it is, Mr. Chairman. 4 C.O. STUBCHAER: Okay. We'll reconvene at 1:00 p.m. 5 (Luncheon recess.) 6 ---oOo--- 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 8426 1 TUESDAY, JANUARY 12, 1999, 1:00 P.M. 2 SACRAMENTO, CALIFORNIA 3 ---oOo--- 4 C.O. STUBCHAER: Good afternoon. Come back to order. 5 Mr. Herrick, you have -- 6 MR. HERRICK: I just want to make sure we're all on 7 the same track, so I don't dismiss a witness too early. If 8 we go directly to DWR I'm not sure that we'll fill up the 9 rest of the day. And then there's the question of what we 10 do the rest of the day. 11 Does the Board want to continue with Mr. Sexton's 12 cross-examination, and when that's done I can dismiss 13 Dr. Orlob? And I think DWR's case then brings us to 14 approximately the end of the day. 15 C.O. STUBCHAER: I understood DWR to say it didn't 16 matter to them when I asked Mr. Sandino this morning, and 17 my intention was to continue the cross-examination of this 18 panel, which unless there are objections -- 19 MR. HERRICK: No. 20 C.O. STUBCHAER: -- we will do. Okay, Mr. Sexton. 21 MR. SEXTON: Thank you, Mr. Chairman. 22 Dr. Orlob, before the break we were talking to you 23 about some deposition testimony relating to salt discharges 24 to the river. Do you recall that? 25 DR. ORLOB: Yes, I do. CAPITOL REPORTERS (916) 923-5447 8427 1 MR. SEXTON: And in that testimony as I read it you 2 had testified that South Delta's water quality -- excuse 3 me, the South Delta irrigation efficiency was expected to 4 be somewhere in the neighborhood of 75 percent? 5 DR. ORLOB: That's correct. 6 MR. SEXTON: And you testified that all things 7 remaining equal, the discharge of approximately 500 TDS 8 receiving water would result in the 2,000 TDS discharge at 9 the end of your system? 10 DR. ORLOB: At that level of efficiency. 11 MR. SEXTON: At that level of irrigation efficiency, 12 correct. 13 C.O. STUBCHAER: Mary, can you hear? 14 THE REPORTER: No, it's very hard. 15 C.O. STUBCHAER: We can't hear your response, 16 Dr. Orlob. 17 DR. ORLOB: I'm sorry. 18 C.O. STUBCHAER: And when the Court Reporter can't 19 hear it, she can't record it. 20 DR. ORLOB: Okay. My answer is at that level of 21 irrigation efficiency that would be correct. 22 MR. SEXTON: Okay. Now, in your testimony you state 23 that pumping has increased over time in the San Joaquin 24 Valley? 25 DR. ORLOB: Apparently so. CAPITOL REPORTERS (916) 923-5447 8428 1 MR. SEXTON: And you testified further that this 2 additional pumping has contributed increased salt loading 3 to the San Joaquin River? 4 DR. ORLOB: I believe that would be reasonable to 5 make that conclusion. 6 MR. SEXTON: Could you put up South Delta 1, please, 7 John -- wrong exhibit. I'm sorry. South Delta 5. 8 You're aware that the Exchange Contractors began 9 taking water from the Delta-Mendota Canal in approximately 10 1951, correct? 11 DR. ORLOB: That's correct. 12 MR. SEXTON: And you're aware that in about the 13 mid-1960s the San Luis Unit of the Central Valley Project 14 commenced taking surface water from the CVP? 15 DR. ORLOB: I believe that's correct. 16 MR. SEXTON: And one of the features of the San Luis 17 Unit is the San Luis Reservoir? 18 DR. ORLOB: That's correct. 19 MR. SEXTON: Prior to 19 -- let's say for the sake of 20 argument, 1967, prior to approximately 1967 there was still 21 some irrigation for agricultural purposes that went on in 22 what is now the Westlands Water District; isn't that true? 23 DR. ORLOB: I think so. 24 MR. SEXTON: And that irrigation was not dependent on 25 surface water? CAPITOL REPORTERS (916) 923-5447 8429 1 DR. ORLOB: I don't believe -- I think the principal 2 source was groundwater, but I'm not sure. 3 MR. SEXTON: Now, in 1967 Westlands entered into a 4 contract with the Bureau of Reclamation for a supply of 5 surface water. 6 DR. ORLOB: Yes. 7 MR. SEXTON: And there was some other CVP contractors 8 that are also within the San Luis Unit; isn't that correct? 9 DR. ORLOB: I assume so, I don't know specifically. 10 MR. SEXTON: Well, if I said that Panoche Water 11 District, Westlands Water District, San Luis Water District 12 were all San Luis Unit contractors, does that sound about 13 right to you? 14 DR. ORLOB: Sounds okay. 15 MR. SEXTON: Now, these contractors also used 16 groundwater prior to the time that the surface water was 17 introduced and the San Luis Reservoir was constructed, 18 correct? 19 DR. ORLOB: I assume so. 20 MR. SEXTON: And your testimony is the groundwater 21 quality is not as good as surface water quality -- 22 DR. ORLOB: Generally -- 23 MR. SEXTON: -- at least in these areas? 24 DR. ORLOB: Generally, that's true. 25 MR. SEXTON: So isn't it true, then, that when CAPITOL REPORTERS (916) 923-5447 8430 1 surface water was introduced into the San Luis Unit service 2 area in about 1967 that there was actually a reduction in 3 groundwater use rather than an increase in groundwater use? 4 DR. ORLOB: I don't have evidence of just what 5 transpired at that particular place. It would be assumed 6 that if you were -- you were replacing groundwater as a 7 source of supply with surface water that would be true. 8 MR. SEXTON: Do you have any evidence to indicate -- 9 well, let me ask it this way: 10 What evidence do you have that bears out your 11 statement in your testimony that groundwater has increased 12 over this period of time, including up through the present 13 time? 14 DR. ORLOB: Groundwater usage? 15 MR. SEXTON: Yes. 16 DR. ORLOB: Only the historic record that, an example 17 of which I included in my presentation, which shows a 18 steady increase in the usage of groundwater in those 19 depletion study areas. 20 MR. SEXTON: You said that you had some dealings with 21 the San Joaquin Drainage Program during your work? 22 DR. ORLOB: I served on a subcommittee dealing with 23 some of the aspects of that program that concerned salt 24 balance and modeling and systems' analysis. 25 MR. SEXTON: Well, isn't it true that the San Joaquin CAPITOL REPORTERS (916) 923-5447 8431 1 Valley Drainage Program concluded that increased pumping of 2 groundwater over the levels which existed since the 3 introduction of CVP surface water would, actually, benefit 4 salt discharges -- salt loads within the San Joaquin River? 5 DR. ORLOB: I'm not aware of that conclusion, but 6 it's possible, I presume. 7 MR. SEXTON: Do you have any information that you 8 have done, in other words, any work that you have done that 9 would contradict that statement? 10 DR. ORLOB: No. 11 MR. SEXTON: Looking at South Delta Exhibit 5, you 12 have a lot of wells depicted with the little plus signs, 13 most of which -- the largest concentration of which is on 14 the west side of the river. Correct? 15 DR. ORLOB: Correct. 16 MR. SEXTON: If I were to tell you that most of those 17 wells were constructed in the 1940s and are not being used, 18 do you have any evidence to the contrary, not being used 19 now, excuse me? 20 DR. ORLOB: Well, I don't have a current record of 21 their use. I had a record, I derived this from a report 22 which summarized the existing wells, wells that existed for 23 some period of time over a rise of about 20 years in the 24 1960s, '70s and '80s. 25 MR. SEXTON: But you didn't look at the data that was CAPITOL REPORTERS (916) 923-5447 8432 1 in the San Joaquin Valley Drainage Report? 2 DR. ORLOB: No. 3 MR. SEXTON: When you refer to tailwater and return 4 flow I'm assuming that you mean both surface runoff and 5 subsurface drainage water; is that right? 6 DR. ORLOB: That's correct. 7 MR. SEXTON: Are tailwater and return flows the same? 8 DR. ORLOB: To the extent that they both occur on the 9 surface, I would say that they are. In some cases, of 10 course, return flows may pass through the groundwater and 11 reach the channel, in which case they're not the same. 12 MR. SEXTON: Okay. You're familiar with -- let me 13 rephrase that. 14 Dr. Orlob, if it is true that groundwater pumping 15 actually decreases the volume of drain flow -- and by 16 "drain flow" now I'm talking about flow to tile drains from 17 agricultural areas -- if groundwater pumping actually 18 decreases the volume of drain flow, wouldn't it also affect 19 the salt load into the San Joaquin River and, therefore, 20 your conclusions? 21 DR. ORLOB: I'm not sure I follow your argument that 22 decreasing -- or I'll say increasing pumpage would decrease 23 the drain flow. 24 MR. SEXTON: Okay. Did you have an opportunity to 25 either hear or review the testimony of Dr. Steve Deveral CAPITOL REPORTERS (916) 923-5447 8433 1 and Chris White where it was delivered in Phase V? 2 DR. ORLOB: No, I did not. 3 MR. SEXTON: Do you know who Dr. Deveral is? 4 DR. ORLOB: No, I don't. 5 MR. SEXTON: In order to support your conclusion that 6 pumping contributes to degradation of the San Joaquin 7 River, isn't it necessary that the salt loads be calculated 8 for different levels of pumping? 9 DR. ORLOB: I don't think I declare that pumping, per 10 se, increases the salt load. A delivery of groundwater of 11 inferior quality to surface application would make a 12 contribution to increased quality of the drainage flow. 13 MR. SEXTON: Wouldn't that be dependent on whether 14 tailwater runs off the service area and into the San 15 Joaquin River? 16 DR. ORLOB: Yes, it has to be. We're concerned about 17 the quality of drainage to the Sacramento -- San Joaquin 18 River, yes. 19 MR. SEXTON: If it is true that groundwater pumping 20 decreases the flow of water in the groundwater flow system 21 to tile drains and thereby reduces the flow of agricultural 22 drainage water to the rivers of the State, then have you 23 done any balance to determine whether your hypothesis that 24 increased pumping for application degrades the quality in 25 the San Joaquin River? CAPITOL REPORTERS (916) 923-5447 8434 1 DR. ORLOB: Only to the extent that water delivered 2 from the groundwater is an inferior quality to surface 3 drainage and tailwater would increase the contribution of 4 salts from a specific irrigated area to the river. 5 MR. SEXTON: Okay. Are you familiar with the 6 location of the Firebaugh Canal Water District? 7 DR. ORLOB: I've been there, but I couldn't pin it 8 down. 9 MR. SEXTON: Firebaugh is one of the districts within 10 the Exchange Contractors service area. Firebaugh is also a 11 member of the Grassland Bypass Project. Are you familiar 12 with that? 13 DR. ORLOB: Just in general terms, yes. 14 MR. SEXTON: Did you review any of the data of the 15 testimony submitted by Joe McGahan on behalf of the 16 Grassland Bypass Project and specifically his conclusions 17 that over the years the Bypass Project has been in 18 existence there's actually been a reduction in salt 19 discharges to the San Joaquin River? 20 DR. ORLOB: I haven't seen those data. 21 MR. SEXTON: Okay. And you haven't seen this data 22 either that concludes that there's been a reduction in 23 selenium discharges to the San Joaquin River from this same 24 area? 25 DR. ORLOB: No, I haven't. CAPITOL REPORTERS (916) 923-5447 8435 1 MR. SEXTON: Steve Deveral testified that pumping of 2 groundwater in the Western San Joaquin Valley would lead to 3 decreased salt loading. Do you disagree with that 4 statement? 5 DR. ORLOB: Well, it depends where that water is 6 delivered and in what water course we're calculating. You 7 know one delivers water from an inferior reservoir, in the 8 case of groundwater, to the surface water system it would 9 degrade that because the quality of the groundwater is so 10 inferior to that of the surface water, the receiving water. 11 MR. SEXTON: So as I understand your testimony, you 12 are adamant in your testimony, then, that the pumping of 13 groundwater will lead to increased salt loading from 14 tailwater returns into the San Joaquin River? 15 DR. ORLOB: I think that is a correct statement. 16 MR. SEXTON: Okay. And you are, also, just as 17 adamant that groundwater pumping will not reduce flow from 18 the groundwater flow system to tile drains in the Grassland 19 Bypass Project service area, for example? 20 DR. ORLOB: Pumping of the groundwater, of course, 21 would lower the water table lower. And to the extent that 22 the excretion to the drains is affected by the head of the 23 element of the drain from the water table, then it would be 24 true that you would reduce the amount of drainage water 25 into the tile drainage system. CAPITOL REPORTERS (916) 923-5447 8436 1 So that is possible that you can pump down the 2 groundwater table, reduce the lateral flow into the drain, 3 or into the intercepting channels. 4 MR. SEXTON: Okay. So as I understand your testimony 5 then, it is not in all circumstances that groundwater 6 pumping for agricultural application will result in 7 increased salt loads to the river? 8 DR. ORLOB: It's my general observation that shifting 9 the burden of water supply from high-quality surface water 10 to a low-quality groundwater would result in degradation of 11 the surface water quality in the main channels of the San 12 Joaquin River. I think that's clear and I would support 13 that in a general case. 14 There are specific cases where if you lower the 15 groundwater table you reduce the lateral drain. But you 16 can't get away from the fact that there is this salt being 17 added to the subsurface system and at some point you have 18 to remove that salt, remove it either by pumping, tile 19 drainage, or lateral flow to other surface water channels. 20 MR. SEXTON: But you would agree as a general concept 21 the pumping of groundwater will reduce groundwater levels 22 and, therefore, will result in additional storage of tile 23 drainage in the groundwater flow system? 24 DR. ORLOB: Well, it would result in an increased 25 temporary storage of, say, a water in a groundwater CAPITOL REPORTERS (916) 923-5447 8437 1 structure above -- let's say, above some reference level. 2 You could accumulate some salt in the soil profile, or the 3 subsurface profile temporarily, at least. 4 MR. SEXTON: Okay. And, again, you don't have any 5 data that would indicate -- excuse me. 6 You don't have any data that would contradict the 7 USGS data of groundwater flow modeling which says that -- 8 that it shows that when pumping was done on the west side 9 it actually decreased flow to tile drains? 10 DR. ORLOB: I don't have any specific data that would 11 contradict that conclusion from whatever source it comes 12 from. 13 MR. SEXTON: In your testimony, South Delta 34 at 14 Page 3 under Subparagraph 3, you have a statement that, 15 (Reading): 16 "Expansion of irrigated agriculture with 17 development of marginally productive saline 18 lands increase consumptive use of water." 19 What lands are you referring to that, in your 20 view, are marginally productive? 21 DR. ORLOB: Well, I would assume lands that are -- 22 let's say, have previously not been applied to agriculture, 23 I would think that those would be typical of some of the 24 lands along the west side of the valley having accumulated 25 residual salts over historic times water applies to those CAPITOL REPORTERS (916) 923-5447 8438 1 soils has been experienced during the initial development 2 of the California Aqueduct, for example, and I think also 3 in the San Luis Delta-Mendota Canal. Those lands would add 4 salt initially to the system if water were applied to it. 5 MR. SEXTON: I understand that testimony, but what is 6 the basis for your testimony that these "lands are 7 marginally productive"? 8 DR. ORLOB: Well, I would think that's a general 9 conclusion from the history of lands on the west side, 10 which were not brought into full production until there had 11 been sufficient time to leach the salts from the soils. 12 And I would say that those might be classified as lands 13 that probably are not as productive as others elsewhere in 14 the system that don't have the burden of salts. 15 MR. SEXTON: Are you familiar with the crops grown in 16 the Panoche Water District? 17 DR. ORLOB: No, I'm not. 18 MR. SEXTON: Are you familiar with the crops grown in 19 the Broadview Water District? 20 DR. ORLOB: No, not specifically. I know cotton and 21 some grain crops are grown in those areas, but I'm not 22 sure. 23 MR. SEXTON: How about in the San Luis Water 24 District? 25 DR. ORLOB: No. CAPITOL REPORTERS (916) 923-5447 8439 1 MR. SEXTON: How about in either of the Exchange 2 Contractors, the four-member unit of the Exchange 3 Contractors? 4 DR. ORLOB: No, I'm not. 5 MR. SEXTON: Are you familiar with the crops grown in 6 the Westlands Water District? 7 DR. ORLOB: Not specifically, no. 8 MR. SEXTON: In your view, is growing cantaloupe; in 9 other words, cantaloupe is that a marginally productive 10 crop as far as you're concerned? 11 DR. ORLOB: I really don't know what the requirements 12 are for cantaloupe. 13 MR. SEXTON: You testified in connection with South 14 Delta 4 that salt load at Vernalis is probably right now 15 between 750,000 and 900,000 tons of salt per year; is that 16 correct? 17 DR. ORLOB: The average of the period, the first two 18 decades in this record, about 750,000 tons per year. And 19 it's increased since 1950, so that in the recent -- let's 20 say, most recent two decades it would be of the order of 21 900 to a thousand -- a thousand tons per year. 22 MR. SEXTON: Isn't it true that South Delta Water 23 Agency's drainage results in additional salt loading in the 24 neighborhood of about 140,000 tons of salt per year? 25 DR. ORLOB: Loading into what water source? CAPITOL REPORTERS (916) 923-5447 8440 1 MR. SEXTON: Loading to its discharge points. 2 DR. ORLOB: The South Delta Water Agency extracts 3 water from the channels adjacent to its lands and returns 4 the drainage, the same salts back to the adjacent water 5 course. 6 MR. SEXTON: Did you already testify also that South 7 Delta contributed about four times the salt of its 8 receiving waters? 9 DR. ORLOB: That's concentration of the salts we 10 believe are returned based on the quality of the applied 11 water. It's not tonnage, of course. 12 MR. SEXTON: So is it your testimony that South Delta 13 does not contribute 140,000 tons of salt a year at its 14 return points? 15 DR. ORLOB: I'm not aware of the exact number, or how 16 you would obtain that number other than sum of the total 17 return flow and multiplying it by some factor. As I 18 indicated earlier, that the concentrations would vary 19 widely depending upon the source of water over the lands of 20 the South Delta Water Agency, which range in quality from 21 something on the order of maybe 150 milligrams per liter up 22 to -- hopefully, not any greater than 500. 23 So, of course, the diversion at the diversion 24 points of water from the channels would be multiplied by 25 some factor, concentration factor depending upon the CAPITOL REPORTERS (916) 923-5447 8441 1 efficiency of irrigation but the returning of the same 2 salts back to the system from where they came. 3 MR. SEXTON: Plus the salts that are returning to the 4 system from your service area, from lands within your 5 service area as a result of irrigation? 6 DR. ORLOB: Those are the salts that we're talking 7 about. Those salts originate with the water applied for 8 irrigation and are returned back to the same source. 9 MR. SEXTON: Are you testifying that South Delta's 10 agricultural practices result in absolutely zero-additive 11 salt to the Delta? 12 DR. ORLOB: I think the net result of agriculture in 13 the lands of the South Delta Water Agency is not to add any 14 salts to the system, any total salt burden. 15 MR. SEXTON: Do you have any data that supports the 16 conclusion that South Delta's agricultural practices does 17 not add increased salt to the Delta? 18 DR. ORLOB: I think there are data available. I have 19 not done that extensively for the whole of the lands of the 20 South Delta, but I think that can be rather 21 well-demonstrated from data collected by the Department of 22 Water Resources and others on the quality of not only the 23 Delta water channels, but also the quality of the return 24 drainages. 25 MR. SEXTON: Okay. So once again, if Dr. Deveral CAPITOL REPORTERS (916) 923-5447 8442 1 testified during Phase V that there is a discharge of some 2 salts as a result of South Delta agriculture, you would 3 disagree with that? 4 MR. HERRICK: I would just object. That misstates 5 the testimony. Dr. Deveral's testimony dealt with Central 6 Delta and upstream of the South Delta. And he said that 7 South Delta needed further investigation. That was not the 8 testimony. 9 C.O. STUBCHAER: I'll sustain the objection. 10 MR. SEXTON: Mr. Chairman, I think, without being 11 argumentative, I think Dr. Deveral's testimony was that 12 indications were that South Delta did, in fact, discharge 13 salts as a result of irrigation practices. The data was 14 not that conclusive, however, it did need further 15 examination. 16 C.O. STUBCHAER: During the discussion there's 17 obviously been some -- I don't want to use the word 18 "confusion," but I will because I can't think of a better 19 word, between concentration and mass load. 20 And some of your questions dealt with 21 concentrations and the answers dealt with mass loadings, so 22 as long as we're consistent there. As I recall, the 23 testimony of Phase V was that there was no addition of mass 24 load, but the concentration went up with the irrigation 25 efficiency, as a function of the irrigation efficiency. CAPITOL REPORTERS (916) 923-5447 8443 1 MR. SEXTON: That's my recollection, also. 2 C.O. STUBCHAER: All right. 3 C.O. BROWN: Mr. Chairman? 4 C.O. STUBCHAER: Mr. Brown. 5 C.O. BROWN: I'm also having some confusion here if 6 the question and answer relates to applied water either 7 through the soil profile, or even running across the 8 surface of the land in gaining up this tailwater where the 9 former ending up as tile or subsurface water, if the 10 question is: 11 Do either of these actions cause an increment in 12 the salinity of the applied water? Is that your question? 13 MR. SEXTON: Much better stated than I did, but, yes. 14 MR. HILDEBRAND: May I ask for clarification of a 15 question? 16 C.O. BROWN: Well, he's asking the question, I'm just 17 trying to get clarification myself, if I may. 18 MR. SEXTON: I think I could state the question as 19 Member Brown presented it is a correct question. Can you 20 answer that question? 21 MR. HILDEBRAND: I don't think -- 22 MR. SEXTON: I was asking Dr. Orlob. 23 DR. ORLOB: I don't believe that the practice of 24 irrigation which diverts water from a Delta channel onto 25 lands within the Delta island and results in a return of CAPITOL REPORTERS (916) 923-5447 8444 1 drainage water to the same system results in any additional 2 mass load of salts to that source. 3 C.O. BROWN: Not quite the question. 4 DR. ORLOB: Then I have to have the question 5 rephrased, again, because I'm not quite clear what the 6 question was. 7 C.O. STUBCHAER: Why don't you ask Mr. Sexton -- 8 C.O. BROWN: I would rather have you ask it, 9 Mr. Sexton. You could read it back if you want to. 10 MR. SEXTON: Could you read back Mr. Brown's 11 question, please? 12 (Whereupon the question was read back by the Reporter.) 13 MR. SEXTON: Can you answer that question, Dr. Orlob? 14 DR. ORLOB: Return of drainage water of higher 15 quality or, let's say, higher salinity than was originally 16 applied and when returned to the original water source 17 would return that amount of salts, that is the total -- 18 same salt load, but would be applied to, let's say, a flow 19 or quantity of water that had been diminished by the amount 20 of water used consumptively between the source and the 21 return flow. So the answer is that it could increase 22 locally the quality of the salinity of the receiving water. 23 MR. SEXTON: South Delta doesn't have any tile 24 drains; is that correct? 25 DR. ORLOB: Very few, I think. CAPITOL REPORTERS (916) 923-5447 8445 1 MR. SEXTON: Other than those that Mr. Hildebrand 2 testified to in the New Jerusalem area? 3 DR. ORLOB: I think that's correct. 4 MR. SEXTON: Have you done any examination to 5 determine what impacts, if any, South Delta's irrigation 6 practices have to additional salt flowing in the 7 groundwater flow system to those tile drains? 8 DR. ORLOB: I haven't done anything specifically with 9 that. 10 MR. SEXTON: When South Delta discharges its 11 tailwater back to the system, some of that water is picked 12 up by the Delta pumps at Tracy; isn't that correct? 13 DR. ORLOB: Some of the water from the Delta finds 14 its way into the Tracy pumping plant, yes. 15 MR. SEXTON: And if that water is of a higher salt 16 concentration than the water that was applied -- well, let 17 me ask it this way: 18 Is that water a higher concentration of salts than 19 the water that was applied at South Delta? 20 DR. ORLOB: Sometimes it may be, but it depends on 21 what location in the Delta we're referring to. 22 MR. SEXTON: Well, we're referring to the Tracy 23 pumps. 24 DR. ORLOB: Well, at the Tracy pumps typically, for 25 example, under normal operation total dissolved solids CAPITOL REPORTERS (916) 923-5447 8446 1 range, let's say, from 200 to 300 maybe at the time of 2 diversion. That's substantially lower than the quality of 3 water that enters at Vernalis. It might be more related to 4 the average quality of waters throughout the land of the 5 southern Delta, not just the South Delta. 6 MR. SEXTON: Is the water that's discharged by the 7 South Delta but ultimately picked up by the Delta pumps at 8 Tracy, is the salt load in that water greater than the salt 9 load of the water that South Delta received? 10 DR. ORLOB: I don't believe so. 11 MR. HERRICK: I would have to object to that question 12 in that in order to compare loads you'd have to compare the 13 quantities of the water that the South Delta diverts and 14 then what's exported. I don't think you can make that -- 15 C.O. STUBCHAER: I think the question could be asked 16 by way of concentration instead of load. 17 MR. SEXTON: Well, I think we already asked that 18 question, Mr. Stubchaer, and he testified. I'll move on. 19 Have you ever been asked by South Delta to 20 ascertain impacts of its own agricultural drainage on water 21 quality within its system? 22 DR. ORLOB: Only indirectly in the sense that I have 23 on occasion done salt balance studies with models of the 24 Delta system and have determined that distribution of the 25 salinity within the Delta channels under certain sets of CAPITOL REPORTERS (916) 923-5447 8447 1 operations criteria. 2 MR. SEXTON: Have you submitted any of your modeling 3 results as part of your testimony? 4 DR. ORLOB: No, I haven't. 5 MR. SEXTON: Do you intend to? 6 DR. ORLOB: I haven't any plans to do that at the 7 moment. 8 MR. SEXTON: Is the model that you constructed 9 similar to the models that are used by other hydrologists 10 to determine salt loads? 11 DR. ORLOB: They're very similar to those being used 12 now by the Department of Water Resources, for example. 13 Also, my modeling group at the University of California at 14 Davis, we applied the models both for hydrodynamics and 15 water quality to the Delta system. 16 MR. SEXTON: Were your assumptions the same as those 17 used by DWR? 18 DR. ORLOB: I believe they are. 19 MR. SEXTON: Is there a reason why you used a new 20 model rather than using DWR's model? 21 DR. ORLOB: Well, DWR's model, certain versions of it 22 particularly in hydrodynamics are not suitable for some of 23 the objectives that the modeling group and the DWR has for 24 modeling. So they called on the University of California 25 at Davis to give them some additional help with the CAPITOL REPORTERS (916) 923-5447 8448 1 modeling, particularly in the South Delta area around 2 Clifton Court. 3 MR. SEXTON: Does some of the water that's discharged 4 by South Delta after its irrigation practices get picked up 5 by the pumps and moved down the Delta-Mendota Canal for 6 delivery to the districts on the west side? 7 DR. ORLOB: I suppose that some of the salts have 8 that origin, yeah. 9 MR. SEXTON: And is it your testimony that some of 10 that water has a higher salt load than the water that would 11 otherwise be if it were not for South Delta's irrigation? 12 DR. ORLOB: Some of the water that is pumped south 13 through the Delta-Mendota Canal has an incrementally larger 14 concentration than would otherwise be supplied -- or 15 applied to Delta lands. Is that -- maybe I don't have 16 quite the phrasing for your question. 17 MR. SEXTON: Well, I was asking the question in terms 18 of load. 19 DR. ORLOB: In terms of load? 20 MR. SEXTON: Yes. 21 DR. ORLOB: Well, the load that is delivered to the 22 Delta-Mendota Canal through the Tracy pumping plant would 23 be derived from flow times the quality of the water at the 24 intake to the pumping plant. That quality is determined by 25 all of the sources that contribute or subtract salt from CAPITOL REPORTERS (916) 923-5447 8449 1 the system throughout the Delta including the interface 2 from the western Delta and tributary streams. 3 MR. SEXTON: Do you agree with Mr. Hildebrand's 4 recirculation proposal? 5 DR. ORLOB: I think it's a novel idea that should be 6 explored further and it shows promise for improving the 7 management of the system in order to reduce the quality -- 8 reduce the salinity at Vernalis. 9 MR. SEXTON: How would you suggest, if the Board were 10 to go that route, how would you suggest that the Board deal 11 with fears that recirculating the water would increase the 12 salt loads and ultimately exacerbate water quality in the 13 San Joaquin River? 14 DR. ORLOB: Well, as I understand it now, I don't see 15 where that would increase the salt load unless that water 16 was applied to sources of salt that are not already 17 existing in the system. So I don't think it's adding any 18 salt to the system. It's recirculating water and the 19 intended salt load. 20 MR. SEXTON: Okay. Is your answer the same if the 21 question is: Does the recirculating proposal result in any 22 increased salt concentration to the San Joaquin River? 23 DR. ORLOB: I would expect that it would modify the 24 concentrations from what they would be normally by virtue 25 of adding, let's say, some water probably superior quality CAPITOL REPORTERS (916) 923-5447 8450 1 at the point of diversion from the Delta to the water that, 2 otherwise, would be draining back into the San Joaquin 3 River channel. 4 The objective, of course, would be to reduce the 5 salinity of the water -- the quality at Vernalis typically 6 by providing additional water in excess of whatever 7 agricultural demands there are to provide dilution affect 8 on other sources of salt on the San Joaquin system. 9 MR. SEXTON: Dr. Orlob, wouldn't you agree that the 10 preferable scenario rather than dealing with recirculation 11 and dealing with cutting down on water pumped at the DMC -- 12 excuse me, pumped at the Tracy pumping plant into the DMC, 13 that the preferable scenario would be to remove drainage 14 from agricultural operations by means of an out-of-valley 15 drain? 16 DR. ORLOB: I think that -- of course, that has been 17 a longtime objective of those that have been concerned with 18 drainage of the San Joaquin Valley. I think it's -- 19 everybody that I know of would favor exporting the salt as 20 the most efficient way -- exporting the drainage is the 21 most efficient way of removing salt from the system. 22 Otherwise, the salt is merely recirculated and 23 redistributed. Unfortunately, its main impact occurs at a 24 time of maximum sensitivity to irrigation, and if we could 25 remove the salt in the system in some way, practical, then CAPITOL REPORTERS (916) 923-5447 8451 1 it would be desirable, a desirable solution. 2 MR. SEXTON: Do you know of any solution other than 3 an out-of-valley drain that could be a permanent solution 4 to the west side regional drainage problems? 5 DR. ORLOB: I know there have been quite a number of 6 special studies undertaken to try to separate the salts 7 from the drainage, reduce the salts to the drainage flows, 8 but I don't know of any that have actually been successful. 9 I think the most promise is in the management of the system 10 both from the point of view of quantity of the flow and the 11 quality of the flow in order to minimize impacts at 12 sensitive locations. 13 MR. SEXTON: One of the witnesses testified in Phase 14 V that it would be preferable to allow the Regional Board 15 to adopt standards which would permit realtime management 16 of agricultural drainage flows and San Joaquin River flows 17 from the west side. Would you agree with that? 18 DR. ORLOB: I think that's a good approach. I think 19 that there's merit in approaching it that way. 20 MR. SEXTON: In your view, how is realtime management 21 of agricultural drainage and San Joaquin River flows, how 22 is that helpful? 23 DR. ORLOB: Well, I presume what would be intended 24 would be to reduce flows -- let's say, diminish the salt 25 loads that would be imposed on this system at certain CAPITOL REPORTERS (916) 923-5447 8452 1 points in time by reallocating them at other points in time 2 where, with the additional flow that may result in periods 3 of high water, result in dilution and lesser impact by 4 virtue of reduced concentration on water use, beneficial 5 water use. 6 MR. SEXTON: Thanks, Dr. Orlob. That's all I have, 7 Mr. Chairman. 8 C.O. STUBCHAER: Thank you, Mr. Sexton. Well, next 9 on the list is Mr. O'Laughlin. We're going more quickly 10 than we thought we might go. Is he here or is he gone? 11 MR. GODWIN: No, he thought he was going to be on 12 tomorrow morning. So I think he worked it out with South 13 Delta. 14 C.O. STUBCHAER: I'm sorry? 15 MR. GODWIN: Excuse me. Mr. O'Laughlin I think 16 worked it out with South Delta where he would be 17 cross-examining them tomorrow morning. 18 C.O. STUBCHAER: Mr. Herrick, what are the time 19 limitations, if any, of your panel this afternoon and 20 tomorrow? 21 MR. HERRICK: The panel could stay today. It's my 22 understanding that at this point, because Mr. O'Laughlin's 23 questions would be solely for Mr. Hildebrand, that it was 24 better for DWR to put their case on. Then I believe DOI 25 was going to give their opening statement and then we would CAPITOL REPORTERS (916) 923-5447 8453 1 pick up with Mr. Hildebrand in the morning. 2 However, my panel is here, but Mr. O'Laughlin in 3 his scheduling believed that he would be ready tomorrow 4 morning and that would be the schedule. 5 C.O. STUBCHAER: Did you state that his questions 6 were solely of Mr. Hildebrand? 7 MR. HERRICK: He said his first, at least, three 8 hours would be of Mr. Hildebrand. And Mr. Hildebrand can 9 be here tomorrow morning through noon. 10 C.O. STUBCHAER: So if we can finish with Dr. Orlob 11 this afternoon he wouldn't need to return; is that right? 12 MR. HERRICK: Mr. O'Laughlin's initial questions, 13 which he said three to five hours, were for Mr. Hildebrand. 14 I do believe he does have questions for Mr. Orlob. 15 C.O. STUBCHAER: All right. 16 MR. GODWIN: Yes, he does. When he said the three to 17 five hours for Mr. Hildebrand, he wasn't expecting 18 Mr. Orlob to be here. 19 C.O. STUBCHAER: Ms. Cahill? 20 MS. CAHILL: Mr. Stubchaer, I could go ahead now, I 21 probably wouldn't have any more than ten minutes. 22 C.O. STUBCHAER: All right. Mr. Johnston? 23 MR. JOHNSTON: Mr. Godwin took care of my comment. 24 C.O. STUBCHAER: All right. Ms. Cahill. 25 I would say, again, Dr. Orlob, if you could CAPITOL REPORTERS (916) 923-5447 8454 1 perhaps get the microphone closer to your mouth while 2 you're speaking, sometimes you're rather soft-spoken. 3 DR. ORLOB: I'm sorry. Normally I carry well. 4 C.O. STUBCHAER: Maybe we should turn up the mic, if 5 possible, but anyway, please proceed, Ms. Cahill. 6 ---oOo--- 7 CROSS-EXAMINATION OF SOUTH DELTA WATER AGENCY 8 BY THE CITY OF STOCKTON 9 BY VIRGINIA CAHILL 10 MS. CAHILL: Thank you, good afternoon. 11 Mr. Hildebrand, I have only probably two very 12 short questions for you. Number one: Is the City of 13 Stockton located partially within the legally defined 14 Delta? 15 MR. HILDEBRAND: Yes. 16 MS. CAHILL: And do you know how much of the City is 17 within the Delta; is it approximately half of the current 18 area within the city limits? 19 MR. HILDEBRAND: I don't know what it is today in 20 view of the expansion of the City, but I think it used to 21 be about half. 22 MS. CAHILL: And it's a substantial percentage? 23 MR. HILDEBRAND: Substantial, yes. 24 MS. CAHILL: Thank you. I have no further questions 25 for you. CAPITOL REPORTERS (916) 923-5447 8455 1 Dr. Orlob, I have only a few for you. If you 2 would turn to your testimony, Exhibit 34-A, on page -- not 3 page, I don't see page numbers, but in Paragraph 6 you make 4 a statement -- I'm sorry, it's the next page. It's the 5 page that has Paragraph 7, or the heading 7, last paragraph 6 on that page. And you say, 7 (Reading): 8 "If the proposed increased diversions are made 9 by reducing allocations to OID and SSJID and are 10 not replaced by corresponding releases from 11 storage to quality control in the lower river, 12 the result will be -- will likely be greatly 13 elevated salinity in the San Joaquin River as it 14 enters the South Delta Water Agency." 15 What proposed increased diversions are you talking 16 about here? 17 DR. ORLOB: I understand that there are negotiations 18 between the Bureau and the irrigation districts for freeing 19 up some of the water entitlement that those irrigation 20 districts have so that it can be made available to other 21 contractors, for example, Stockton East or some such -- 22 MS. CAHILL: Okay. When you testified, my hearing 23 was not very good and I couldn't tell whether you said that 24 you were assuming 50,000 acre-feet, 5 zero, or 15,000 25 acre-feet? CAPITOL REPORTERS (916) 923-5447 8456 1 DR. ORLOB: I assumed 50 in the preliminary analysis. 2 MS. CAHILL: Okay. To your knowledge, there is 3 nothing in the San Joaquin River Agreement that proposes a 4 50,000 acre-foot a year increased diversion? 5 DR. ORLOB: As far as I know there isn't. This was a 6 number that was banging about early in the discussions, but 7 I've since seen modifications of proposed agreements 8 between the Bureau and Stockton East, for example, that 9 suggests smaller quantities. 10 MS. CAHILL: And if the quantities were smaller the 11 affects that you show would be smaller? 12 DR. ORLOB: Of course. 13 MS. CAHILL: In any case, there are not necessarily 14 impacts in all years? 15 DR. ORLOB: Not necessarily. 16 MS. CAHILL: And there are not necessarily even 17 impacts in all months and years where there may be some 18 impacts? 19 DR. ORLOB: That's right, some months are more 20 vulnerable, let's say, compared to others. 21 MS. CAHILL: Okay. To the extent you have figures 22 shown on Figure 9, those numbers are not, in fact, 23 reflective of what is currently in the San Joaquin River 24 Agreement? 25 DR. ORLOB: No, that's a hypothetical situation. But CAPITOL REPORTERS (916) 923-5447 8457 1 the numbers that indicate the actual quantity -- or actual 2 quality, I should say, in that figure are from actual data. 3 The modified result of changing the, say, allocation of 4 water through either exporting it out of the basin, those 5 are numbers that I calculated by mass balance computations 6 based on the actual values that were present in the river 7 at the time. So, for example -- 8 MS. CAHILL: The baseline was calculated, then? 9 DR. ORLOB: The baseline is calculated. 10 MS. CAHILL: And the changes were based on a 50,000 11 acre-foot a year assumption? 12 DR. ORLOB: In that case, yes. 13 MS. CAHILL: Thank you. 14 C.O. STUBCHAER: Thank you, Ms. Cahill. 15 Mr. Godwin. 16 MR. GODWIN: I was expecting to go later, but -- can 17 we do DWR today? 18 C.O. STUBCHAER: Mr. Brandt. 19 MR. BRANDT: I was similarly expecting to go later. 20 C.O. STUBCHAER: Boy, oh, boy. I wonder why we 21 distributed all these exhibits in advance to give people a 22 chance to prepare, but, Mr. Campbell, are you prepared? 23 MR. CAMPBELL: I am prepared, but based on what I 24 heard this morning I was under the assumption that the 25 Board was going to proceed with DWR's case in chief this CAPITOL REPORTERS (916) 923-5447 8458 1 afternoon. So some of the people who may want to hear my 2 very brief cross-examination are not -- are no longer 3 present in the hearing. 4 MEMBER DEL PIERO: You know, it must be wonderful to 5 be loved so much, David. 6 C.O. STUBCHAER: All right. 7 MEMBER DEL PIERO: You might want to ask Mr. Sandino 8 if he's prepared to go forward since everybody is 9 volunteering him. 10 C.O. STUBCHAER: Yeah. Mr. Sandino, are you prepared 11 to put on the case of the Department of Water Resources? 12 MR. SANDINO: Yes. 13 C.O. STUBCHAER: All right. Mr. Herrick, we'll do 14 that and -- 15 C.O. BROWN: Are you going to ask if the staff has 16 any questions? 17 C.O. STUBCHAER: The Board and staff will be after 18 all the parties cross-examine as customary. 19 MR. HERRICK: Mr. Chairman? 20 C.O. STUBCHAER: Yes. 21 MR. HERRICK: Unless the Board wanted to ask 22 questions now, then, if I understand it, I will dismiss 23 Dr. Orlob although he will be -- 24 C.O. STUBCHAER: He will be back tomorrow. 25 MR. HERRICK: -- at a future date. Mr. O'Laughlin CAPITOL REPORTERS (916) 923-5447 8459 1 says that he will take all of Alex -- just questions of 2 Alex tomorrow morning, if Mr. Orlob doesn't want to show up 3 tomorrow. 4 C.O. STUBCHAER: Mr. O'Laughlin is assuming that 5 we're going to give him four or five hours and we may not. 6 It's difficult for me to see how the relevancy with regard 7 to this phase is going to go on that long. So I think the 8 witnesses better be -- 9 MR. HERRICK: I just want to make sure we're on the 10 same track, then. I will have the witnesses show up 11 tomorrow morning. 12 MEMBER DEL PIERO: Mr. Chairman, if I might, 13 Mr. Chairman, while you're talking to Mr. Brown, I think 14 the Chairman is on track. And I think everybody better 15 start paying attention. That is just an observation that 16 doesn't necessitate a comment. 17 C.O. STUBCHAER: Off the record for a moment. 18 (Off the record from 1:54 p.m. to 1:55 p.m.) 19 C.O. STUBCHAER: Back on the record. 20 MR. NOMELLINI: Mr. Chairman? 21 C.O. STUBCHAER: Mr. Nomellini. 22 MR. NOMELLINI: I'd like to object to this delay of 23 cross-examination by the parties that didn't raise that 24 issue earlier. Mr. O'Laughlin said he left his notes at 25 home and had an inability to carry out a cross-examination, CAPITOL REPORTERS (916) 923-5447 8460 1 because he was without those notes. None of these other 2 parties have put forth such an excuse. 3 It seems to me that's forcing us to a fairly 4 inefficient use of our time in this hearing. So I'd like 5 to interpose an objection to the rest of these guys backing 6 off on their cross-examination. 7 C.O. STUBCHAER: Mr. Godwin. 8 MR. GODWIN: Well, with all due respect to 9 Mr. Nomellini, we agreed on a schedule this morning and 10 yesterday afternoon and now all of a sudden things have 11 changed again. So you know we're just trying to follow 12 what the schedule was. We made plans according to what the 13 schedule was and now things have been changed around again. 14 C.O. STUBCHAER: Mr. Brown. 15 C.O. BROWN: I support Mr. Nomellini on this. I 16 think it's important that not only the witnesses be 17 prepared, but also the attorneys who are presenting a case 18 in cross-examination. And we want to use your time and our 19 time as effectively and efficiently as possible. And you 20 may be called ahead of time a little bit, or you may have 21 to be delayed a little bit, but I would suggest you have 22 the information in hand, you should read it and be prepared 23 when you come here. And the schedule will change from time 24 to time and I suggest that you be ready to address those 25 changes. That is my suggestion, Mr. Chairman. CAPITOL REPORTERS (916) 923-5447 8461 1 C.O. STUBCHAER: I agree with you, Mr. Brown, and if 2 it weren't for the willingness of one party to swap place 3 with Mr. O'Laughlin today, we would have proceeded as 4 scheduled. 5 Mr. Brandt. 6 MR. BRANDT: If you wish, I am prepared, I can go 7 forward if that is necessary. 8 C.O. STUBCHAER: Mr. Campbell? 9 MR. CAMPBELL: Likewise. 10 C.O. STUBCHAER: All right. We will -- Mr. Sandino, 11 you may stand at ease. And we will go ahead with the 12 cross-examination, first will be Mr. Brandt. 13 Good afternoon, Mr. Brandt, 14 MR. BRANDT: Thank you, Mr. Chairman. 15 C.O. STUBCHAER: Either/or. 16 ---oOo--- 17 CROSS-EXAMINATION OF SOUTH DELTA WATER AGENCY 18 BY THE DEPARTMENT OF THE INTERIOR 19 BY ALF BRANDT 20 MR. BRANDT: Okay. Just I had prepared and I had all 21 my things organized for another thing that you were going 22 to do, the opening statement afterwards, and that's why 23 it's taking me just a moment here to reorganize. 24 Dr. Orlob, I have just a couple of questions for 25 you, and then most of my questions are for Mr. Hildebrand. CAPITOL REPORTERS (916) 923-5447 8462 1 As I understand it, you've testified that since CVP started 2 operations the salt loads have increased about 25 percent; 3 is that correct? 4 DR. ORLOB: That's roughly correct. 5 MR. BRANDT: Can you tell me how much -- before CVP, 6 how much there was a satisfaction of the current standards 7 as they are today under pre-season peak conditions? Was 8 there ever a time that the standards that exist today were 9 violated, do you know? 10 DR. ORLOB: Yes, I believe there were some occasions 11 when the quality was less than what the present standards 12 would require, in particular those very dry years. But in 13 general the quality during that -- those first two decades 14 before the CVP went into operation was quite superior to 15 what it was in the succeeding years. 16 MR. BRANDT: Do you have any estimate how many times 17 the standards were violated in the pre-CVP days? 18 DR. ORLOB: I don't know offhand, but I could 19 determine that. 20 MR. HERRICK: Just for clarification of the record, 21 I'm not sure there was a standard before pre-CVP, but I 22 understand the question to mean whether or not it reached 23 that level. 24 DR. ORLOB: Right. 25 MR. BRANDT: Thank you. CAPITOL REPORTERS (916) 923-5447 8463 1 MR. HILDEBRAND: If you wish, I think I can answer 2 the question. 3 MR. BRANDT: Go ahead, Mr. Alex Hildebrand. 4 MR. HILDEBRAND: I believe that the only time the 5 salinity in the South Delta channels exceeded the present 6 salinity standard was only in the northern portion of the 7 South Delta during September of 1930 something? 8 DR. ORLOB: '31. 9 MR. HILDEBRAND: '31. 10 DR. ORLOB: '31 or '44. 11 MR. HILDEBRAND: I think maybe '34, but anyway, in 12 the early '30s. One time one month after most of the crops 13 had been irrigated and it was -- that was due to 14 encroachment of saltwater from the Bay, which did not get 15 up as far as Grant Line and there could be another part 16 also. 17 MR. BRANDT: And Vernalis standards, do you have any 18 idea, either of you? 19 MR. HILDEBRAND: Let's see, the Vernalis quality was 20 better than 400 as far as I'm aware at all times. 21 MR. BRANDT: What do you base that on? Do you have 22 any reports? 23 MR. HILDEBRAND: Yes. There is some old data based 24 on grab samples, they didn't have continuous samples in 25 those days. And the grab samples that I have seen, none of CAPITOL REPORTERS (916) 923-5447 8464 1 them went above 400. 2 MR. BRANDT: And I just want to clarify one piece of 3 your testimony, Dr. Orlob. You mention in your testimony 4 that your general conclusion from this analysis that any 5 reallocation of water in the Stanislaus basin that 6 diminishes the flow to the Stanislaus River below Goodwin 7 Dam, et cetera, et cetera, "is detrimental to the interests 8 of the South Delta Water Agency." 9 Two questions, one is: When you say "interests," 10 are you referring to in general, or are you referring to 11 their rights? 12 DR. ORLOB: Well, I would say specifically to their 13 rights to have water of an acceptable quality in accordance 14 with the agreed-upon targets of sufficient quantity to 15 ensure flow through the Delta. 16 MR. BRANDT: Okay. So you're referring to their 17 quality, but are you making a comment in that conclusion as 18 to whether their rights are being affected? 19 DR. ORLOB: No, I'm not. 20 MR. BRANDT: And, secondly, I want to clarify that 21 that is detrimental to the rights of the South Delta Water 22 Agency not the South Delta in general, correct? 23 DR. ORLOB: I work for the agency and my focus was on 24 my agency's entitlements. 25 MR. BRANDT: So you're not making any comments as to CAPITOL REPORTERS (916) 923-5447 8465 1 compliance with standards that are for fish flows or 2 anything along these lines? 3 DR. ORLOB: No, I'm not. 4 MR. BRANDT: That's all I have for you, Dr. Orlob. 5 Mr. Hildebrand, let me take you first to your 6 comments on the recirculation scheme. 7 MR. HERRICK: Could we -- circulation plan instead of 8 "scheme"? Scheme sounds a little pejorative. 9 C.O. STUBCHAER: You could make the request of 10 Mr. Brandt. 11 MR. HERRICK: Mr. Brandt, could you refer to it as 12 the recirculation plan? 13 MR. BRANDT: I can refer to it as the 14 recirculation -- the alleged recirculation plan. I first 15 want to understand just how much pumping is going to be 16 required to satisfy the recirculation plan during the 17 pulse-flow period, how much water is going to need to be 18 pumped? 19 MR. HILDEBRAND: As indicated in SDWA 12, I think it 20 is the modeling, it was done by DWR if my recollection is 21 correct, the amount that would be recirculated varies in 22 the range of 0 to about 110,000 acre-feet during that 23 pulse-flow period. 24 MR. BRANDT: Okay. When you say the amount that's 25 going to be recirculated, is that an amount that keeps CAPITOL REPORTERS (916) 923-5447 8466 1 going around and therefore it may be 400, because it -- 2 MR. HILDEBRAND: No, that's the net. 3 MR. BRANDT: Wait. 4 C.O. STUBCHAER: Just a moment please, 5 Mr. Hildebrand. Finish your question. 6 MR. BRANDT: Okay. Is that the total additional 7 pumping, export pumping that's going to be required? 8 MR. HILDEBRAND: Yes. 9 C.O. STUBCHAER: Now, Mr. Brown has a question, 10 Mr. Brandt. 11 C.O. BROWN: Clarification question, Mr. Brandt, I 12 want to make sure I understand this, is that there is a 13 difference between pumping and water that is temporarily 14 dedicated to the recycling effort. 15 As I understood from your testimony yesterday if 16 you're looking at increasing the capacity in the San 17 Joaquin by 2,000 csf, as an example, that equivocated to 18 4,000 acre-feet a day. And if at two or three days to 19 prime the system, we're talking 8 to 12,000 acre-feet to 20 primer. Now, that's a different figure as to how long you 21 would have to keep pumping that 8 or 12,000 acre-feet. 22 Is your question how much is it to prime this 23 system, or how much pumping is required to keep your 24 recirculation in effect for the period of the desired time? 25 MR. BRANDT: My question was: How much pumping was CAPITOL REPORTERS (916) 923-5447 8467 1 required? 2 MR. HILDEBRAND: A pumping that -- that would be 3 required in that case would be a figure of, in Mr. Brown's 4 example, 2,000 csf, or 4,000 a day for 31 days. However, 5 the pumping would be displaced in time a little bit because 6 of the time delay. And the time delay would be 7 accommodated by borrowing roughly 10 percent of that amount 8 of water out of San Luis at the beginning of the period and 9 returning it at the end of the period. But the amount of 10 extra pumping you did would be whatever the amount 11 circulated would be. 12 Now, 2,000 csf is a little more than the maximum 13 that we actually showed in our example. I think we only 14 came up with about 110,000 of total recirculated water, 15 total extra pumping in the maximum case that was modeled. 16 MR. BRANDT: You went from 2,000 csf to 110,000 17 acre-feet? 18 MR. HILDEBRAND: Yeah. Well, 110,000 acre-feet 19 divided by 31 days will give you that many per day. 20 MR. BRANDT: Would give you the 2,000 csf? 21 MR. HILDEBRAND: Well, it doesn't come out to 2,000. 22 Mr. Brown has suggested just an illustrative figure here. 23 And I'm merely pointing out that that figure is a little 24 outside of the range that we modeled. It would work out 25 that same way, but we didn't anticipate that we would need CAPITOL REPORTERS (916) 923-5447 8468 1 quite that much. 2 C.O. STUBCHAER: Mr. Brown? 3 C.O. BROWN: If it would help, I just estimated 4 around 1500 csf. 5 MR. HILDEBRAND: Roughly, yes. 6 MR. BRANDT: Thank you. Now, this amount at the end 7 you said would be the amount that was taken for priming at 8 the beginning would ultimately be replaced back into San 9 Luis at the end; is that correct? 10 MR. HILDEBRAND: That's right. 11 MR. BRANDT: Isn't that the time that the CVP would 12 be increasing pumping in any case, so wouldn't that 13 additional -- 14 MR. HILDEBRAND: No, 15 MR. BRANDT: Can I finish my question? 16 MR. HILDEBRAND: I'm sorry. I thought you were 17 finished. 18 MR. BRANDT: My question is: That would be on top of 19 the additional increase that the Bureau would be doing at 20 the end of the pulse-flow period, would that be violating 21 any standards? 22 MR. HILDEBRAND: No. You would be returning the 23 water into San Luis during the last three days of the pulse 24 period so you would not be extending the period of 25 increased pumping. CAPITOL REPORTERS (916) 923-5447 8469 1 MR. BRANDT: Do you have any idea of what the affect 2 of the increased pumping from what the San Joaquin River 3 Agreement proposes, 1500 on certain cases, 3,000, do you 4 have any idea what the increased pumping affect would be on 5 fisheries? 6 MR. HILDEBRAND: Well, I discussed that in my 7 testimony that that's a question for the fish agencies to 8 decide, but for the most part you can do the recirculation 9 within the framework of their present biological opinion. 10 But on the other hand, that biological opinion was 11 developed on the basis that it did not involve this kind of 12 an operation. 13 It involved increased pumping across -- that would 14 come across from the Sacramento River system. So this 15 would be less intrusive than what they were addressing when 16 they made the biological opinions. So we're assuming that 17 there would be a new biological opinion which would 18 presumably be somewhat less restrictive. And in any event 19 we are -- our comprehensive plan says what you would do if 20 we can't recirculate the total amount. 21 MR. BRANDT: Does the South Delta Water Agency take 22 any of the water that comes through the -- through 23 Vernalis, does it appropriate it or its members appropriate 24 water -- 25 MR. HILDEBRAND: First let me just clarify, the CAPITOL REPORTERS (916) 923-5447 8470 1 agency does not pump any water. The agency merely 2 represents the landowners who have appropriative and 3 riparian -- primarily riparian rights and so, no. We're 4 just representing, yes, they do pump the water that comes 5 down past Vernalis and we have a right to do so. 6 In fact, this Board in the past has taken the 7 position that our riparian rights are appurtenant to San 8 Joaquin River flows not to flow from the Sacramento system. 9 So that's -- I think that answers your question. 10 MR. BRANDT: How do you come to the conclusion that 11 the increased pumping, or the pumping at whatever level 12 during the pulse-flow period required for recirculation 13 would not draw any water from the Sacramento River? 14 MR. HILDEBRAND: As compared to the base flow and the 15 base condition, let's say your base condition involves 1500 16 csf for export and then we just superimpose on that this 17 recirculation so that you're taking water that comes down 18 river and pumping it back down the DMC where it came from. 19 Consequently you're not sucking any water across the 20 Sacramento River system. 21 MR. BRANDT: And are you assuming in this 22 recirculation that there would be no barrier at the head of 23 Old River? 24 MR. HILDEBRAND: No. Our comprehensive plan doesn't 25 speak whether or not you have a fish barrier, but it does CAPITOL REPORTERS (916) 923-5447 8471 1 speak to having the three tidal barriers which then prevent 2 the salt load that comes down the San Joaquin River from 3 recycling right back over to the federal pumps. And 4 instead adjusts it on down to the Central Delta where it is 5 greatly disbursed by the tidal flows which are much greater 6 than the river flow. 7 MR. BRANDT: But you don't have any studies that 8 would show us definitively that there would be no 9 Sacramento water drawn across and that we're drawing waters 10 from the Central Delta, there's no possibility that 11 Sacramento River water wouldn't be drawn across the Delta 12 to the pumps? 13 MR. HILDEBRAND: Well, if all the water is being 14 pumped is available without drawing it across, why would 15 you draw it across? It's only drawn across if the 16 drawdown -- if the pumps have to draw down water elevation 17 to such a degree that Sacramento River comes across. And 18 it wouldn't be draws down further if the water is being 19 supplied from the San Joaquin system. 20 And in regards to the affect of the salinity, 21 Dr. Orlob did do modeling which showed that the -- if you 22 have the three tidal barriers functioning, very little of 23 this salt load in the San Joaquin River gets back to the 24 federal pumps. Whereas without it, substantially without 25 it, if it does go back to the federal pumps gets reexported CAPITOL REPORTERS (916) 923-5447 8472 1 down out of the valley. 2 So it's part of the scheme, it's a comprehensive 3 scheme. It includes the recirculation. It includes the 4 tidal barriers and it includes the regulation of the time 5 of release of the salt load drainage waters during the 6 period of March 1st to April 15th. 7 And in order to regulate that drainage without 8 damaging the upstream water quality and you reach below the 9 Merced, you have to recirculate. If you don't recirculate 10 you can't do that regulation without damaging the salinity 11 in flow in that reach of river. So it's an overall plan. 12 MR. BRANDT: I understand it's an overall plan. So 13 you have no studies, though, that -- you haven't taken an 14 example and studied what happens when exports are at 1500 15 and then go up a certain amount for the additional 16 recirculation? You've done no studies -- 17 MR. HILDEBRAND: I don't think we've done specific to 18 that but the modeling that we've done would lend itself to 19 analyzing that. And I'm competent the answer would come 20 out as the same. It's just a matter of mass balance. 21 MR. BRANDT: But you don't know of any increased 22 pumping that would be required for recirculation? You 23 don't know what would happen to smelt, for instance, 24 correct? 25 MR. HILDEBRAND: I'm not an expert on smelt fish, no. CAPITOL REPORTERS (916) 923-5447 8473 1 But as I say if you look back at the biological opinion 2 which was based on a presumption which would bring the 3 Sacramento River flows you can still do a lot of 4 recirculation within that, perhaps, not the total amount. 5 MR. BRANDT: Mr. Hildebrand, what kind of expert are 6 you? 7 MR. HILDEBRAND: Well, I'll let you judge that for 8 yourself. 9 MR. BRANDT: What is your expertise? 10 MR. HILDEBRAND: My expertise, well, you want to go 11 back to the history of my experience? 12 MR. BRANDT: Let me be more specific: Do you have 13 any biological expertise? 14 MR. HILDEBRAND: I have not claimed to have any 15 biological expertise. 16 MR. BRANDT: Do you have any engineering expertise? 17 MR. HILDEBRAND: I do. I have extensive experience 18 in engineering in various fields. I was Assistant Chief 19 Engineer at the Richmond Finery at one time. 20 MR. BRANDT: I'm sorry, the Richmond -- 21 MR. HILDEBRAND: Richmond Finery, what's now Chevron. 22 I was director of oil field research for that company, but 23 we had lots of mechanical and subsurface flow problems to 24 look at. And I'm a farmer. I've had considerable 25 experience for over 40 years now as a farmer. CAPITOL REPORTERS (916) 923-5447 8474 1 MR. BRANDT: Okay. So you're an expert on the 2 farming side and an expert on the engineering side? 3 MR. HILDEBRAND: I claim to be, yes. 4 MR. BRANDT: There are a lot of comments in your 5 testimony about the law. Do you consider yourself an 6 expert on the California Water Law? 7 MR. HILDEBRAND: That's a matter of definition of 8 expert. I guess I've been exposed to it for so long that I 9 have some understanding of it, but I refer to our attorney 10 for questions that go beyond my expertise. 11 MR. BRANDT: You state in your testimony that the -- 12 and I'll quote the testimony clearly stated that 13 (Reading): 14 "The Department of Fish and Game and Fish and 15 Wildlife Service believe that there is no 16 discernible relationship between flows at 17 Vernalis and smolt survival rate." 18 Do you recall that testimony? 19 MR. HILDEBRAND: That's my understanding that they 20 had a panel here of about a half dozen of them, Mrs. Brandt 21 was the only one who suggested through some rather indirect 22 evidence that there might be a correlation, the rest of 23 them declined to indicate there was. On the other hand, 24 this results in a benefit to fishery of a slow down past 25 Stockton and the San Joaquin River and it was the other way CAPITOL REPORTERS (916) 923-5447 8475 1 around. There was only one of them that didn't think that 2 was valuable. 3 MR. BRANDT: But did one of the witnesses -- can you 4 tell me which witness clearly stated that there is no 5 discernible relationship between flows at Vernalis and 6 smolt survivability? 7 MR. HILDEBRAND: Well, since I don't recall exact 8 wording, I suppose there's some argument as to whether it 9 was clear. Certainly, that was the gist of the testimony. 10 MR. BRANDT: And so it was "the gist." It wasn't an 11 absolute statement, "There is no discernible relationship 12 between the flows at Vernalis and the smolt 13 survivability" -- 14 MR. HILDEBRAND: I don't recall -- 15 MR. BRANDT: I just need to finish 16 C.O. STUBCHAER: Yes. Mr. Hildebrand -- 17 MR. HILDEBRAND: I'm sorry. I have to keep watching 18 his mouth so I know when he's quit talking. 19 C.O. STUBCHAER: When he pauses -- 20 MR. BRANDT: Let's try that again to get the record 21 clear. So you do not recall a witness saying that there, 22 in clear terms, quote 23 (Reading): 24 "There is currently no discernible relationship 25 between flows at Vernalis and smolt CAPITOL REPORTERS (916) 923-5447 8476 1 survivability," closed quote. 2 MR. HERRICK: If I may, Mr. Chairman, the record says 3 what it says. I don't think we need to test 4 Mr. Hildebrand's recollection of specific statements four 5 or five months ago. I will provide, if you like tomorrow 6 morning, the transcript part that has it and people can 7 quote it if they want or not. 8 C.O. STUBCHAER: Mr. Brandt. 9 MR. BRANDT: It's necessary for me to get -- this is 10 a part of his conclusions and his things. And in order for 11 me to understand his ultimate conclusions, which come down 12 a little later, I need to make sure I understand what he's 13 talking about. 14 MR. HERRICK: I understand. 15 MR. BRANDT: If you can find somewhere in the record 16 where someone stated it in those kind of clear terms and 17 said there was no relationship, I'll welcome that 18 identification. But that's why I'm asking Mr. Hildebrand 19 to identify specifically "There is no discernible 20 difference," by Fish and Game or Fish and Wildlife. 21 C.O. STUBCHAER: Mr. Campbell. 22 MR. CAMPBELL: Mr. Hildebrand has made his 23 understandings of that portion of the record a specific 24 part of his written testimony. Therefore, I think that it 25 is fair game for Mr. Brandt to test him on his knowledge CAPITOL REPORTERS (916) 923-5447 8477 1 regarding those assertions. 2 C.O. STUBCHAER: Mr. Herrick. 3 MR. HERRICK: Yeah. We're not hiding the ball here. 4 Mr. Nomellini handed me transcript Page 1151. And I 5 believe Mr. Hildebrand's testimony describes how that panel 6 did that. And if I may read from it 7 (Reading): 8 "Number 2, Dr. Morhardt from the data on Figure 9 3.1.7 there is no correlation between the San 10 Joaquin at Vernalis and smolt survival." 11 MR. BRANDT: Can I just note, that's exactly my 12 point, that was Dr. Morhardt who is not with the Fish and 13 Wildlife Service, or the Department of Fish and Game. And 14 no one from those departments made that comment. That's 15 why I'm trying to understand whether he can reach that kind 16 of thing, reach the kind of conclusions that he does two 17 paragraphs down. 18 MR. HERRICK: If -- 19 MR. BRANDT: And that's why I'm asking these kinds of 20 questions. 21 C.O. STUBCHAER: Mr. Herrick. 22 MR. HERRICK: If somebody wants to suggest that it's 23 wrong, that's fine. But it's not appropriate to ask 24 Mr. Hildebrand what day, what person, what line said 25 something. His testimony sets forth his belief. CAPITOL REPORTERS (916) 923-5447 8478 1 And we've shown one of the panel members to do 2 that. We all have access to the transcripts. There's no 3 point in doing that unless you want to later put on 4 evidence, say, I'm sorry, DFG and Fish and Wildlife didn't 5 say that, that's fine. 6 C.O. STUBCHAER: On cross-examination I think it is 7 fair to question the testimony of the witness. If it's not 8 a question, one might assume that it is taken because it 9 hasn't been questioned. And I know it's difficult to go 10 back and remember who said what on a specific date, but I 11 do think it's fair to ask questions regarding the basis of 12 the witness' testimony. 13 Mr. Brandt, you may proceed. 14 MR. BRANDT: Thank you. So other than what your 15 attorney just identified, you cannot identify at this time 16 anybody from the Fish and Wildlife Service, or the 17 Department of Fish and Game who said terms something like, 18 and I'm quoting your statement 19 (Reading): 20 "There is currently no discernible relationship 21 between flows at Vernalis and smolt 22 survivability," closed quote? 23 MR. HILDEBRAND: My memory isn't good enough to quote 24 some other person exactly what they said, but I was 25 certainly left with the impression that there was no one on CAPITOL REPORTERS (916) 923-5447 8479 1 the panel other than Mrs. Brandt who made any indication 2 that there was such knowledge. 3 MR. BRANDT: By the way, just for the record, can we 4 clarify that's Ms. Brandis? 5 C.O. STUBCHAER: I was wondering. 6 MR. BRANDT: No relationship. 7 C.O. STUBCHAER: And, Mr. Herrick, I'd like to make a 8 comment. You, of course, on rebuttal can bring in or point 9 out the evidence that you want considered on this point. 10 If you can produce or point out where in the record these 11 statements are made, that would be fine either in rebuttal 12 or in your closing argument. 13 MR. HERRICK: I appreciate that, Mr. Chairman. This 14 counsel, no offense to him, and previous counsels have 15 asked the panel questions about prior testimony and said, 16 "Well, they didn't say that; isn't that true," and that's 17 to me unproductive. Either side if they want to make a 18 point can show what is and isn't in the record rather than 19 testing somebody's knowledge. 20 C.O. STUBCHAER: But when somebody testifies to 21 something, it opens it up to inquiries. 22 MR. HERRICK: Certainly. We have no problem. 23 C.O. STUBCHAER: Right. Mr. Nomellini. 24 MR. NOMELLINI: I think it's appropriate questioning, 25 but I think somebody has to put the transcript in front of CAPITOL REPORTERS (916) 923-5447 8480 1 Mr. Hildebrand in all fairness in order to ask him about 2 that. We don't have the -- 3 C.O. STUBCHAER: All Mr. Hildebrand can do is to 4 answer to the best of his ability. If he doesn't know or 5 can't remember, he can so state. 6 Mr. Campbell? 7 MR. CAMPBELL: I'd also like to point out in response 8 to Mr. Herrick's comment that Mr. Hildebrand, I believe, 9 had an opportunity to review the transcripts when he 10 formulated his written testimony. So given that 11 opportunity he could have, at the time of putting together 12 his written testimony, edited it appropriately to reflect 13 what is or is not in the transcript. And whether he did 14 that or not is, I think, again, subject to Mr. Brandt's 15 cross-examination. 16 C.O. STUBCHAER: Mr. Del Piero. 17 MEMBER DEL PIERO: Mr. Chairman, I think we need to 18 proceed with the questioning. We'll dock Mr. Hildebrand a 19 day's pay for not putting the footnote down, but it's 2:20 20 and I'd like to get some more testimony on the record 21 before the day is over. And then all of you guys can 22 review it, bring it in tomorrow and beat up another 23 witness. 24 C.O. STUBCHAER: Okay. Please, proceed, Mr. Brandt. 25 MR. BRANDT: So, Mr. Hildebrand, if you cannot CAPITOL REPORTERS (916) 923-5447 8481 1 identify anybody from what you call the "fishery agencies" 2 who have -- who do not believe there's any correlation, do 3 you still conclude that it's unreasonable use of water to 4 require higher flows? I think you described the standards 5 as higher flows, but I'm pointing to Page 3 of your 6 testimony. You still consider it an unreasonable use of 7 water to require the higher flows? 8 MR. HILDEBRAND: I don't think that I'm going to -- 9 not being a biologist, I don't think I can answer that 10 question. 11 MR. BRANDT: Okay. So you really have no basis to 12 make that comment that it's an unreasonable use of -- 13 MR. HILDEBRAND: I'm merely relying on my 14 understanding of what was said by the panel. 15 MR. BRANDT: Okay. This is another question. Let me 16 finish my question. 17 MR. HILDEBRAND: I'm sorry. I forgot to keep my eye 18 on your mouth. 19 MR. BRANDT: I could talk very quickly but then the 20 Reporter would have difficulty and that's why -- 21 MR. HILDEBRAND: I apologize. I apologize. Sir, go 22 ahead. 23 MR. BRANDT: Okay. Thank you. So, Mr. Hildebrand, 24 you have no basis then to come to the conclusion stated on 25 Page 3 of your testimony that it is an unreasonable use of CAPITOL REPORTERS (916) 923-5447 8482 1 water to require the higher flows? 2 MR. HILDEBRAND: I'm basing that opinion solely on my 3 understanding of what the majority opinion was on the 4 panel. 5 MR. BRANDT: Okay. You also come to the 6 conclusion -- let me just find it here -- on Page 7 of your 7 testimony that mixing part of the drainage with the pulse 8 flow should benefit smelt. 9 MR. HERRICK: What page is that, I'm sorry? 10 MR. BRANDT: Page 7. Can you tell me how you reached 11 that conclusion? 12 MR. HILDEBRAND: All I'm doing there is quoting what 13 the biological opinion said. Look at the previous 14 sentence. 15 MR. BRANDT: So is it your conclusion then that it's 16 the pulse flow helps dilute the drainage; is that your 17 conclusion? 18 MR. HILDEBRAND: Pulse flow, instead, substantially 19 improve the salinity and flow and selenium concentration in 20 the reach of river that's under discussion here. 21 MR. BRANDT: So it's the pulse flow that's helping, 22 not the mixing in of the drainage; is that correct? 23 MR. HILDEBRAND: It's providing the pulse flow at 24 that point. If you provide the pulse flow further 25 downstream, you don't accomplish this. That's the point CAPITOL REPORTERS (916) 923-5447 8483 1 I'm making, that you do not get this benefit by releasing 2 water out of the New Melones, for example, to provide the 3 pulse flow. If you're going to provide this benefit, you 4 have to release the water either out of Merced River or out 5 of DMC, and the Merced doesn't have enough water. 6 MR. BRANDT: Does the drainage help the smelt at all? 7 MR. HILDEBRAND: I think that the statement I quote 8 from the biological opinion would indicate that it's the 9 opinion of those who wrote that biological opinion that 10 those smelt would be better off if they had improvement in 11 that reach of river which would be accomplished by the 12 recirculation. 13 MR. BRANDT: Okay. So you're not reaching any 14 independent biological opinion -- 15 MR. HILDEBRAND: I'm not a biologist. I do not 16 profess to be a biologist. I'm merely indicating the 17 logical conclusion one reaches from what they have said. 18 MR. BRANDT: Let's move on to your proposal that the 19 Bureau of Reclamation purchase water to put into the San 20 Joaquin River. From who are you proposing that we purchase 21 this water? 22 MR. HILDEBRAND: You can purchase it from almost any 23 contractor who's willing to forego his water delivery and 24 allow you, instead, to deliver it into the river. You 25 could -- it could even be purchased from SWP contractor, CAPITOL REPORTERS (916) 923-5447 8484 1 and we leave that water in San Luis instead of taking 2 delivery on it. From San Luis you can get it into the 3 river. 4 MR. BRANDT: Can you specifically identify any party 5 that is an exporter that has told you that they would be 6 willing to sell environmental water to the projects for 7 placing in the San Joaquin River? 8 MR. HILDEBRAND: Well, I don't know we should have to 9 be that explicit when CalFed isn't that explicit. The San 10 Joaquin River Agreement isn't that explicit. There's a 11 presumption here that if you pay enough for it, somebody is 12 going to be willing to sell it. All through CalFed they 13 say, well, if we need more water, we'll just buy it, 14 period. They don't say who they'll buy it from. 15 MR. BRANDT: Well, CalFed is not here to testify, and 16 so that's why I'm trying to understanding -- I'm trying to 17 understand what your proposal is and how it would actually 18 work, how the Bureau actually steps up, who we go talk to 19 to go get this water. 20 MR. HILDEBRAND: Well, you can make it known that the 21 Bureau wants to buy a certain amount of water from contract 22 water recipients so that they would forego that water and 23 it would then be delivered into the river. And if you put 24 out such a notice, I would expect you to get some takers 25 providing the price is right. CAPITOL REPORTERS (916) 923-5447 8485 1 MR. BRANDT: But you can't identify anybody that you 2 know of specifically that's prepared at this time to 3 sell -- exporters that are prepared to sell water to place 4 in the San Joaquin River, correct? 5 MR. HERRICK: You mean other than the sales we 6 mentioned in the back of Alex's testimony, other than those 7 sellers? 8 MR. BRANDT: That's not an objection. 9 MR. HILDEBRAND: We have -- 10 MR. BRANDT: I mean -- go ahead. 11 MR. HILDEBRAND: We have submitted evidence that 12 people are willing to sell water. Whether those particular 13 people would be the ones from whom you would buy the water, 14 who's to say? But there's ample evidence that there are 15 people willing to sell water if the price is right. 16 MR. BRANDT: Who are those parties willing to sell 17 the water to? 18 MR. HILDEBRAND: Well, I think Arvin Edison, for 19 example, is going to sell water to MWD. But if they're 20 willing to sell it to them, why wouldn't they be willing to 21 sell it to the Bureau? 22 MR. BRANDT: Well, we'll let someone else answer 23 that. But you don't know if Arvin Edison is prepared to 24 sell water to the Bureau or the State Water Project for 25 placement in the San Joaquin River, correct? CAPITOL REPORTERS (916) 923-5447 8486 1 MR. HILDEBRAND: I merely identify them as an example 2 of people who are willing to sell water, and I have no 3 basis for assuming that they're willing to sell it to 4 Metropolitan and not to you. 5 MR. BRANDT: How do we know which parties are not 6 going -- strike that. 7 How do we know which parties we should approach 8 that would not harm South Delta's water interests? 9 MR. HILDEBRAND: Any party that is not taking water 10 upstream from us. You could purchase water from any such 11 party and it would not damage us. 12 MR. BRANDT: So it basically has to come from outside 13 the San Joaquin River basin? 14 MR. HILDEBRAND: That's what I was testifying to 15 earlier today. 16 MR. BRANDT: So if I understand correctly then, 17 exporting to the San Joaquin River basin is a good thing; 18 is that correct? 19 MR. HILDEBRAND: Bringing additional water into the 20 overcommitted system is a good thing, yes, from the 21 standpoint of the interest of the subjects that were 22 examined. 23 MR. BRANDT: Have you studied what exporting to the 24 San Joaquin River system does to those other river -- water 25 systems that are losing water? CAPITOL REPORTERS (916) 923-5447 8487 1 MR. HILDEBRAND: Well, it's generally understood that 2 if you buy, say, some water from somebody from the Panoche 3 District, that part of that income derived from that sale 4 has to be given to the district in order to carry their 5 part of the overhead cost of the district. 6 MR. BRANDT: What about environmental affects on 7 groundwater or anything else, do you know what those would 8 be in those other water basins? 9 MR. HILDEBRAND: I see no reason to assume that that 10 would even be as much as the consequence of buying water in 11 the tributary. 12 MR. BRANDT: But you haven't studied what those 13 effects are going to be on those other basins, correct? 14 MR. HILDEBRAND: No, but the Bureau goes out and buys 15 water in the tributaries and it doesn't come to us to tell 16 you who to buy it from, you manage to find people that 17 would sell it. 18 MR. BRANDT: So the answer is, no, you haven't 19 studied the other basins? 20 MR. HILDEBRAND: No, we don't pretend to know. 21 MR. BRANDT: Let's move on to your proposal to put 22 drainage restrictions on CVP's permits. Now, on Page 12 -- 23 let's start with a couple introductory questions. On Page 24 12 you state, 25 (Reading): CAPITOL REPORTERS (916) 923-5447 8488 1 "The San Joaquin River Agreement guarantees that 2 the water quality objectives would be violated." 3 Do you see that, where that is? 4 MR. HILDEBRAND: I'm aware of the statement. 5 MR. BRANDT: But you state that your comprehensive 6 plan guarantees that the water quality obligations will be 7 met; is that correct? 8 MR. HILDEBRAND: Yes. 9 MR. BRANDT: And is that in every year? 10 MR. HILDEBRAND: I think it could be met in every 11 year, yes. 12 MR. BRANDT: And how is that accomplished? Is it 13 accomplished primarily by the recirculation, is that how 14 the compliance with the standards is achieved? 15 MR. HILDEBRAND: It's a combination of that and the 16 fact that the use of the three tidal barriers at all times, 17 when we don't have flood flows, would reduce the export of 18 the salt going down the Delta-Mendota Canal, decrease the 19 salinity in that canal, thereby reduce the drainage salt 20 load into the river, and thereby decrease the amount of 21 dilution water required to meet water quality. 22 MR. BRANDT: Okay. So then that sounds like it's more 23 the controls on the drainage than the recirculation is 24 what's helping -- allowing the standards to be, as you say, 25 "guaranteed," correct? CAPITOL REPORTERS (916) 923-5447 8489 1 MR. HILDEBRAND: Well, depends on what you mean by 2 control on the drainage. There are two aspects to that. 3 One is you reduce the quantity of salt load that enters the 4 river by drainage from the west side. By reducing the salt 5 load, that's imported into the service area there because 6 of the use of the three tidal barriers. 7 But, then, in addition to that, we make it 8 possible to regulate the time of release of that drainage 9 without damaging the reach of river from the Merced on down 10 by providing enough flow and dilution water out of the DMC 11 so that you can manage that drainage without damaging that 12 reach of river, the water quality in that reach of the 13 river during the pulse flow. 14 MR. BRANDT: How does recirculation help meet 15 compliance with the standards? 16 MR. HILDEBRAND: The problem we have now is that we 17 have this drainage coming into the river, large quantities 18 of it particularly during the period that we identified 19 here, March 1st to April 15th or thereabouts, because of a 20 combination of two things. 21 One is the drainage of the water that's been held 22 on the wetlands during the winter and concentrated is then 23 dropped into the river. And, secondly, the preirrigation 24 of the districts like Panoche, for example, localizes the 25 drainage water and brings it into the river at a higher CAPITOL REPORTERS (916) 923-5447 8490 1 rate at that time. Consequently, we have particularly high 2 demand for water quality release to offset that high 3 salinity drainage during that period of time. 4 MR. BRANDT: And this is which period? 5 MR. HILDEBRAND: Roughly March 1st to April 15th. 6 Now, if you regulate the drainage so that it 7 doesn't come in the river during that period and then let 8 it in during the pulse flow in the subsequent 31 days, and 9 if it comes into the river upstream of the dilution water 10 it creates the pulse flow, then you damage that reach of 11 the river. 12 Now, if on the other hand, you provide the pulse 13 flow with water out of the DMC, which is considerably 14 better quality than the salinity standard, you're diluting 15 that water considerably both by volume and by salinity, and 16 consequently you greatly improve the water quality 17 conditions in that reach of river and also reduce the 18 residence time for any Friant smolts that are coming out 19 during that period. 20 So it should be of considerable benefit both to 21 the fishery in that region and also to those people who 22 divert out of river like Patterson District, West 23 Stanislaus Irrigation District, numerous riparian diverters 24 in that reach who now take a terrible beating. Because to 25 the extent that the Bureau is alleviating its -- mitigating CAPITOL REPORTERS (916) 923-5447 8491 1 its impact on salinity in the river, it doesn't do it until 2 it gets further down the river. The FERC flows out of the 3 Tuolumne don't come in until you get further down the 4 river. 5 So we have a serious water quality problem and low 6 flow problem in that reach of river. You can correct it 7 with recirculation. And if you correct it that way, you 8 then have the option to further improve the situation by 9 controlling the time of entry of that drainage water. 10 MR. BRANDT: Okay. You just told me quite a bit 11 about controlling drainage and how important that is. 12 MR. HILDEBRAND: Yes. 13 MR. BRANDT: Is the DMC water, is it -- it's not a 14 better quality than, for instance, from New Melones or any 15 of the other east side tributaries, correct? 16 MR. HILDEBRAND: No, it's not as good, but it's 17 better than the salinity standard, and it comes in at a 18 much more beneficial point. 19 MR. BRANDT: Okay. Well, you know, I've been trying 20 to find out what recirculation does, and I guess I haven't 21 heard that. So let me draw your attention to Table 7 -- 22 C.O. STUBCHAER: Mr. Brandt, would this be a good 23 time to take our afternoon break? 24 MR. BRANDT: That would be fine. 25 C.O. STUBCHAER: And just before we take the break CAPITOL REPORTERS (916) 923-5447 8492 1 Mr. Del Piero has a question or comment. 2 MEMBER DEL PIERO: I have a question. 3 C.O. STUBCHAER: Okay. 4 MEMBER DEL PIERO: And I guess the question is of 5 Mr. Hildebrand, but it would probably be better put to 6 Mr. Brandt. 7 Mr. Hildebrand, have you ever heard of a district 8 called Mercy Springs? 9 MR. HILDEBRAND: Yes. 10 MEMBER DEL PIERO: Are you aware of the fact that 11 Mercy Springs has been attempting to sell 20,000 acre-feet 12 of CVP to anybody who will take for the better part of five 13 years? 14 MR. HILDEBRAND: Now that you remind me of it, I have 15 heard it. 16 MEMBER DEL PIERO: And the reason I'm asking you the 17 question is because I think the first time I heard about it 18 was from you. We had a conversation about people looking 19 to sell water. Has that water been sold, do you know? 20 MR. HILDEBRAND: I don't know. 21 MEMBER DEL PIERO: Thank you. 22 C.O. STUBCHAER: Thank you, Mr. Del Piero. And, 23 Mr. Herrick, I want to go back to the comment I made 24 about -- I talked about rebuttal. Redirect would probably 25 be the more appropriate place. And it looks like you may CAPITOL REPORTERS (916) 923-5447 8493 1 have time to gather whatever information you need for 2 whatever redirect you may want. With that, we'll take a 3 12-minute break. 4 (Recess taken from 2:56 p.m. to 3:10 p.m.) 5 C.O. STUBCHAER: Come back to order, please. 6 Mr. Brandt, ready to resume your cross-examination? 7 MR. BRANDT: Yes. Thank you, Mr. Chairman. 8 Mr. Hildebrand, your comprehensive plan guarantees 9 the water quality obligations would be met; is that 10 correct? 11 MR. HILDEBRAND: That's right. 12 MR. BRANDT: It guarantees it -- is there one part of 13 it that guarantees that it will be met? 14 MR. HILDEBRAND: No. As I explained, it's the 15 composite of the use of tidal barriers, the recirculation 16 and the control of the drainage -- time of drainage release 17 that is made possible by the recirculation. 18 MR. BRANDT: Let me draw your attention to Table 7 in 19 your Exhibit 12. 20 MR. HILDEBRAND: Okay. Do you know what page that 21 table is on? 22 MR. BRANDT: Isn't it true that the recirculation 23 part of the comprehensive plan really has no effect on 24 salinity? 25 MR. HILDEBRAND: No, that's not true. Two reasons: CAPITOL REPORTERS (916) 923-5447 8494 1 First place, this table only analyzes the effect, I 2 believe -- let me look at this thing -- on the water 3 quality at Vernalis, whereas I have just been talking about 4 the water quality upstream, upstream of the Merced. 5 The other thing is as I explained when we 6 submitted this, this exhibit, the models that we used to do 7 this were incapable of iterating the consequence of the 8 tidal barriers. The tidal barriers over time will, as 9 we've explained, reduce the salt load delivered to the west 10 side service area. The west side service area drains that 11 into the river, and that in turn would dilute the salt load 12 that needs to be diluted downstream. So the benefit is 13 more than indicated in this document for that reason. 14 MR. BRANDT: So we talked about tidal barriers, we 15 talked about drainage controls. But it states in 7 that, 16 "Despite the addition of DMC recirculation in run five, the 17 results are no different than the base run." So there 18 is -- so the question is: So there really is no effect 19 from the recirculation in isolation? 20 MR. HILDEBRAND: In isolation, and without iterating 21 over time, and without considering the salinity upstream as 22 distinguished from the salinity at Vernalis, which is the 23 subject of this table. 24 MR. BRANDT: Well, if you guarantee that the 25 standards are always going to be met in every year -- and CAPITOL REPORTERS (916) 923-5447 8495 1 is that in every year in all months on every day? 2 MR. HILDEBRAND: Essentially. 3 MR. BRANDT: Then can you explain to me why it is 4 that even with recirculation and controlling drainage that 5 this table still shows exceedances of the standards? 6 MR. HILDEBRAND: I'm not saying that you would need 7 it in all years without any releases from New Melones. I'm 8 saying that you would reduce the amount of the releases 9 required and thereby make it more feasible to budget that 10 amount of water to see that it is met at all times as 11 required by the control plan. 12 MR. BRANDT: But the base run in this document is 13 based on releases from New Melones; isn't that correct? 14 MR. HILDEBRAND: Yes. 15 MR. BRANDT: But even with reduction -- with releases 16 from New Melones and the wetland discharge operation and 17 the recirculation, there still are exceedances according to 18 this table, correct? 19 MR. HILDEBRAND: Well, let me refresh my memory. I 20 guess, with what's on this table. Maybe since you're 21 asking the question you could show me where on the table 22 that says what you say. I don't think this table addresses 23 exceedance of the salinity standard. It addresses the 24 amount of water that it would take to achieve the salinity 25 standard. CAPITOL REPORTERS (916) 923-5447 8496 1 MR. BRANDT: And what are the exceedances in this 2 table? 3 MR. BRANDT: It states on the table that -- well, I'm 4 not going to argue. The table states what it states. 5 Let's move on -- 6 MR. HILDEBRAND: Well, this table discusses the 7 maximum -- the total amount of New Melones water required 8 to meet the Vernalis salinity objectives and percentage of 9 months in which the Vernalis objectives is exceeded in the 10 73-year study period. 11 MR. BRANDT: So we'll leave it with that. I do 12 notice that, generally, this table shows that the tile 13 drainage makes a significant impact. Isn't it possible 14 that drainage controls could be adopted as part of just 15 about any plan that's being considered by the State Board? 16 MR. HILDEBRAND: No, for the reason I mentioned, that 17 if you control the time of drainage and don't provide a 18 dilution water upstream of the Merced, you then have this 19 rather severe consequence to the water quality in that 20 reach of river from the Merced down, at least to where the 21 FERC flows come in from the Tuolumne and sometimes as far 22 down as the releases from New Melones. 23 MR. BRANDT: Are we trying to figure out in this 24 hearing how to meet the standards outside, or upstream from 25 Vernalis? CAPITOL REPORTERS (916) 923-5447 8497 1 MR. HILDEBRAND: I think we're trying to see how you 2 benefit the fishery, for one thing. And if you -- one of 3 the advantages of our program is that it addresses the 35 4 percent of the downstream migrant smolts that don't come 5 down during the period of the pulse flow. We're trying to 6 take care of them throughout the 90-days, approximate, 7 downstream migration period. 8 Now, to the extent that those smolts and fry come 9 out of the Merced River, which has some rather good 10 spawning beds, you've got to get them down the river. So 11 if you're going to protect the fishery you have to consider 12 that you don't lose them in that reach of river. And it 13 seems relevant, then, to if you're going to seek any 14 specific amount of recovery of the salmon population that 15 you don't lose a lot of them in that reach of the river. 16 So it seems to me that it is relevant. 17 MR. BRANDT: Are you aware of the Bureau's efforts 18 and actions in the last few years to create ramping flows 19 and plans for ramping flows in years ahead on each side of 20 the pulse-flow period? 21 MR. HILDEBRAND: I'm aware that there is discussion 22 of ramping periods. We have some problems with those in 23 relation to ramping, for example, between May 15th and the 24 1st of June when we're not allowed to operate our barriers 25 during that period. But to the degree that you ramp, you CAPITOL REPORTERS (916) 923-5447 8498 1 somewhat reduce the problem I'm speaking of, but you don't 2 eliminate it. 3 MR. BRANDT: Yesterday you mentioned that drainage 4 restrictions will lower the selenium concentrations; is 5 that correct? 6 MR. HILDEBRAND: The drainage restrictions -- no. 7 What I said is you have with -- the drainage does bring in 8 selenium at concentrations which, not being a biologist, I 9 can't say how much damage they do, but they're up in the 10 range of selenium concentrations which have been stated by 11 biologists to cause damage. And if you recirculate, you 12 alleviate that problem. 13 MR. BRANDT: Does it affect the actual total load of 14 selenium in the river, the drainage controls that you 15 propose? 16 MR. HILDEBRAND: No. The load will be the same 17 anyway, but I see no relevance to that. The thing that 18 damages the fish isn't the load. It's the concentration of 19 that load. 20 MR. BRANDT: But you're not a biologist expert, 21 correct? 22 MR. HILDEBRAND: No, I'm not. 23 MR. BRANDT: Okay. 24 MR. HILDEBRAND: But I'm relying on what the 25 biologists testify as it regards the selenium CAPITOL REPORTERS (916) 923-5447 8499 1 concentrations, that they are damaging to fry, for example. 2 MR. BRANDT: Are you aware of any independent 3 biological analysis of the San Joaquin River by South Delta 4 Water Agency? 5 MR. HILDEBRAND: Say that, again, please. 6 MR. BRANDT: Are you aware of any independent 7 biological studies of the San Joaquin River water quality 8 by South Delta Water Agency or any of its consultants? 9 MR. HILDEBRAND: No, we have not done that. We've 10 relied on testimony of biologists, information available in 11 the literature on this. 12 MR. BRANDT: So you've done -- South Delta has done 13 no other study of the -- 14 MR. HILDEBRAND: We make no pretense of being 15 biological experts or having employed experts. 16 MR. BRANDT: I appreciate that, but let me just 17 clarify and ask one last question to make sure we're clear. 18 So South Delta Water Agency has done no independent 19 biological study of the Delta either, correct? 20 MR. HILDEBRAND: That's correct. We've relied on 21 what we learn by listening to the testimony of those who 22 are biologists. 23 MR. BRANDT: In your testimony you mentioned that 24 there's no cost estimate of the comprehensive plan. Why 25 were you unable to prepare a cost estimate? CAPITOL REPORTERS (916) 923-5447 8500 1 MR. HILDEBRAND: Well, it wouldn't be very difficult 2 to make a cost assessment of the recirculation plan, except 3 that we don't know what charge would be made by the project 4 for pumping the recirculation. However, we've discussed 5 this with project people and ascertained that the cost 6 would be far less than buying a similar amount of water. 7 So we don't have numbers, but we can be assured that it 8 would be less expensive. 9 Now, so far as the control of the drainage out of 10 the 90,000 acres or so plus the wetlands that drain into 11 the river, we've also discussed this with them. I was 12 assured in talking with Dennis Flaushey (phonetic), for 13 example, of Panoche District that they have considerable 14 capability in this regard already. So what additional cost 15 might be involved, I wouldn't know. I wouldn't presume to 16 come up with a number. I'd rather have them come up with 17 it. 18 As far as the wetlands are concerned, we asked 19 them to make an estimate, and we understood that they 20 agreed to, but they have not, as far as I know, done so. 21 MR. BRANDT: And you have no cost estimate of the 22 purchasing of the water from the exporters; correct? 23 MR. HILDEBRAND: No. 24 C.O. STUBCHAER: Just a comment. The question was: 25 You have no estimate, and the answer was, no. In hearing CAPITOL REPORTERS (916) 923-5447 8501 1 that type of question -- 2 MR. BRANDT: Let me redo the question again and we'll 3 make it a little cleaner. 4 You have no cost estimate for the purchasing of 5 water that you propose in the comprehensive plan, correct? 6 MR. HILDEBRAND: We have not estimated that cost. 7 MR. BRANDT: That's what I want, okay. On Page 3 you 8 make the reference that your proposal requires the use of 9 available export pump capacity. How do you define 10 "available export pump capacity"? 11 MR. HILDEBRAND: We met extensively with Dan Nelson's 12 people and Dan Nelson himself about the availability of 13 water -- of pump capacity during the period that we propose 14 that the recirculation take place. And it was their 15 judgment after analyzing it that it was, indeed, available 16 during that period. We restricted our proposal to 17 recirculation during that period so as not to get into 18 periods where it would be more problematical. 19 MR. BRANDT: Okay. And available pump capacity does 20 not, then, take into account possible effects of smelt 21 being near the pumps or other biological factors, correct? 22 MR. HILDEBRAND: No. We're talking about the 23 mechanical and hydrological. 24 MR. BRANDT: You mention in your testimony that 25 there's no guarantee that the flows, the 3200 flow CAPITOL REPORTERS (916) 923-5447 8502 1 requirement would be met. Do you recall that testimony? 2 MR. HILDEBRAND: Yes. 3 MR. BRANDT: Are you aware of the biological opinion 4 requiring that level of flows? 5 MR. HILDEBRAND: The 3200 was the proposal for the 6 VAMP experiment. And the river -- San Joaquin River 7 Agreement does not meet that at all times. In some years 8 it would only provide 1900 and, in fact, I think they even 9 have it out on that. So they don't guarantee to meet the 10 VAMP flow proposal. 11 MR. BRANDT: Let's go back to my question: Are you 12 aware of the biological opinion requiring a level of 3200? 13 MR. HILDEBRAND: I don't think we've indicated that 14 there was a biological opinion that required 3200, but it 15 was the testimony of the people who proposed the VAMP flow 16 that that was what they wanted. 17 MR. BRANDT: Is there some suggestion that the Bureau 18 of Reclamation would not comply with biological opinions 19 contained in the San Joaquin River Agreement? 20 MR. HILDEBRAND: Well, since the Bureau of 21 Reclamation doesn't comply consistently with the Vernalis 22 standard, we wouldn't necessarily assume that they would 23 necessarily comply with any other requirements. 24 MR. BRANDT: Is there anything in the San Joaquin 25 River Agreement that suggests that the Bureau of CAPITOL REPORTERS (916) 923-5447 8503 1 Reclamation is not going to comply with the biological 2 opinion? 3 MR. HILDEBRAND: Indirectly, yes, because the San 4 Joaquin River Agreement proposes explicitly to adopt an 5 operation of the Bureau which would not meet the Vernalis 6 standard frequently and substantially. And if they don't 7 consider that that's important, then why would we assume 8 that they would comply with other departments? 9 MR. BRANDT: Are you aware of the provision in the 10 San Joaquin River Agreement that states that the -- in 11 those years that the target flow would be less than 3200 12 that the Bureau will endeavor to acquire water that would 13 allow it to meet that standard? 14 MR. HILDEBRAND: Lowell Ploss testified they had no 15 plan, or examination, or capability of providing the backup 16 that's proposed in the plan. 17 MR. BRANDT: Are you aware of the provision in the 18 San Joaquin River Agreement providing that the Bureau will 19 try to acquire water to meet the 3200 minimum level? 20 MR. HILDEBRAND: I am aware there's such a statement 21 in there, but it doesn't say where they would acquire it 22 and how they would acquire it in a manner that would not 23 cause damage to the downstream parties, and they've given 24 no indication that they would buy it from outside the river 25 watershed. CAPITOL REPORTERS (916) 923-5447 8504 1 MR. BRANDT: Does the South Delta Water Agency's 2 modeling in any way show how many years the situation would 3 be -- would have -- the target flow would be at 2,000? 4 MR. HILDEBRAND: That was provided by the San Joaquin 5 River Group in their own analyses. 6 MR. BRANDT: In the 73-year period -- or 73 -- 7 70-plus year period, do you recall how many years that the 8 existing flow would be below 2,000? 9 MR. HILDEBRAND: I don't recall, but I think there 10 were quite a few of them when it would be below 3200. 11 MR. BRANDT: I understand that. So -- that's not my 12 question. The existing flow, which is what sets the 13 targets, at what -- do you recall how many years the 14 existing flow goes below 2,000? 15 MR. HILDEBRAND: I don't recall. 16 MR. BRANDT: How is it that the comprehensive plan 17 can guarantee that 3200 -- the 3200 csf flow? 18 MR. HILDEBRAND: Just a matter of how much we 19 recirculate. 20 MR. BRANDT: Does it depend in any way on the amount 21 of New Melones contribution in the addition? 22 MR. HILDEBRAND: Whether or not you would have to 23 recirculate would be influenced by that, but there's 24 nothing in the physical capability of recirculation which 25 would preclude doing it to whether you have to. CAPITOL REPORTERS (916) 923-5447 8505 1 MR. BRANDT: If smelt are near the pumps and, 2 therefore, you cannot recirculate it. You have to go back 3 to a fallback in your proposal, which is, I believe, 4 purchases -- 5 MR. HILDEBRAND: Yeah. 6 MR. BRANDT: -- what's the plan for how we would get 7 the water to meet the 3200, involves the guarantee, the 8 guarantee in your proposal? 9 MR. HILDEBRAND: I think basically do it the same 10 manner that if you're buying water in the river system you 11 would buy it out of the river system on the basis that 12 certain conditions exist that you then buy the water. 13 MR. BRANDT: So there's really no difference between 14 the two. One is purchasing water, the other one is 15 purchasing water in that situation where recirculation is 16 not possible, correct? 17 MR. HILDEBRAND: There's no difference in terms of 18 the feasibility of making the purchases, but there is a 19 very great difference in the consequence in the river 20 system of whether you buy it from inside or outside the 21 river system. 22 MR. BRANDT: Mr. Hildebrand, were you involved in the 23 development of the New Melones Interim Plan of Operations? 24 MR. HILDEBRAND: Well, I was asked that question 25 before, and the answer is that I was present at most of the CAPITOL REPORTERS (916) 923-5447 8506 1 meetings, but I didn't agree with what they did. Never 2 did. 3 MR. BRANDT: Did you participate in a stakeholder 4 process during the drought before the Interim Plan of 5 Operations went into effect? 6 MR. HILDEBRAND: Yes. 7 MR. BRANDT: Did you participate in deciding how best 8 to use the available water in New Melones for the many 9 purposes that it has? 10 MR. HILDEBRAND: Yes. We had a very good system. At 11 that time there wasn't enough water to meet any of the 12 proposed needs, whether it be for fish or for water 13 quality. We were faced with a situation where we didn't 14 have recirculation; we didn't have any other system set up 15 for getting water into the system. So on the short-range 16 basis we just had to sit down and agree how we shared the 17 shortage. We did it amicably and I think we did it very 18 well. 19 MR. BRANDT: Now, you allege that the Interim 20 Operations Plan on Page 8 is a violation of Paragraph 27 of 21 the Bureau's New Melones' permits. Do you recall that 22 testimony? 23 MR. HILDEBRAND: Yes. 24 MR. BRANDT: Can you tell me, has there been a 25 determination as provided in that paragraph that you quote, CAPITOL REPORTERS (916) 923-5447 8507 1 has there been a determination by the State Water Resources 2 Control Board that any change in the project is 3 substantial? 4 MR. HERRICK: If I may, let me find that for him so 5 he can look at that provision. Excuse me, my delay for one 6 moment. 7 MR. BRANDT: Isn't this his testimony? 8 MR. HERRICK: It doesn't quote the -- 9 MR. BRANDT: It does. 10 MR. HERRICK: I'm sorry, does it? 11 MR. HILDEBRAND: Now, what was your question? 12 MR. BRANDT: My question was: Has the State Water 13 Resources Control Board made a determination that any 14 change in the New Melones Project is substantial? 15 MR. HILDEBRAND: I'm not aware that they have. But I 16 think we're now faced with that situation that the Bureau 17 is proposing a substantial change and, therefore, it would 18 be appropriate at this time for the Board to require that 19 this be done. 20 MR. BRANDT: Have you filed a complaint alleging that 21 there was a substantial change? 22 MR. HILDEBRAND: We're more or less awaiting the 23 outcome of this hearing before we take further action. 24 MR. BRANDT: You're not aware of any specific 25 proposal that the Bureau is seeking the Board's CAPITOL REPORTERS (916) 923-5447 8508 1 determination of a substantial change, correct? 2 MR. HILDEBRAND: Well, indirectly. They're sort of 3 doing it when they ask the Board to approve an operation, 4 an interim plan, and it's in the San Joaquin River 5 Agreement which would, indeed, cause such a substantial 6 change. So in making that proposal, they are, in effect, 7 asking the Board to approve such a substantial change. 8 MR. BRANDT: And you're alleging that any change in 9 the operations would be a change in the project; is that 10 correct? 11 MR. HILDEBRAND: I'm not sure I know what you mean by 12 "any change in the operation." 13 MR. BRANDT: If New Melones' operations are changed 14 in some way, does that constitute a change in the project 15 as this permit's paragraph provides? 16 MR. HILDEBRAND: If it's changed in a way that 17 violates the control plan, it would seem to me, yes, that 18 is a change. 19 MR. BRANDT: By proposing recirculation, what is it 20 that you would propose that the New Melones water be used 21 -- how would you propose how New Melones water would be 22 used? 23 MR. HILDEBRAND: The New Melones water yield is 24 greatly overcommitted at the present time, and by 25 recirculating you'll reduce the extent of that CAPITOL REPORTERS (916) 923-5447 8509 1 overcommitment. You won't thereby make a lot of water 2 available for something else. You just reduce the 3 overcommitment. 4 MR. BRANDT: And as I understand it, you object to 5 the Bureau using water for fish flows as one of its top 6 priorities of the New Melones; is that correct? 7 MR. HILDEBRAND: We don't think that the Bureau has 8 any authority to give precedence to fish flows over water 9 quality flows as proposed by Mr. Ploss. 10 MR. BRANDT: Are you aware of the new provisions in 11 the Bureau's permits requiring that fish flows be provided? 12 MR. HILDEBRAND: The original permit provided 65,000 13 acre-feet in critical years, and 98,000 in other years. 14 They later made, in '87, an agreement with Fish and Game to 15 substantially increase those numbers and never said where 16 the water would come from. 17 I'm not opposed to flows for fish. It's a 18 question of whether they're available and whether they take 19 precedence over the downstream water rights and over the 20 meeting of the water quality standards. 21 MR. BRANDT: Could you tell me, in dry years, how 22 would you propose that New Melones water be used or 23 prioritized? 24 MR. HILDEBRAND: I think they have to maintain the 25 water quality at all times, and they have to adopt whatever CAPITOL REPORTERS (916) 923-5447 8510 1 measures are necessary to reduce the burden on New Melones 2 so that could be done while meeting other obligations of 3 New Melones. 4 MR. BRANDT: So water quality would take first 5 priority among all the uses of New Melones water? 6 MR. HILDEBRAND: The permit conditions under which 7 the Board operates -- the Bureau operates doesn't make any 8 exceptions to meeting the water quality. 9 MR. BRANDT: Does it make any exception for providing 10 the minimum 98,000 acre-feet for fish? 11 MR. HILDEBRAND: No, but it couldn't do both of those 12 if it doesn't release other waters for other purposes. 13 MR. BRANDT: But as it stands now there's no 14 exception for fish flows either? 15 MR. HILDEBRAND: That's right, not for those levels 16 of fish flows. 17 C.O. STUBCHAER: Mr. Brandt, how much more time do 18 you think you'll need? 19 MR. BRANDT: I'm going to probably need the rest of 20 this day. 21 C.O. STUBCHAER: Okay. 22 MR. BRANDT: Maybe less. Depends on the answers as 23 well. 24 C.O. STUBCHAER: Proceed. 25 MR. BRANDT: Thank you. CAPITOL REPORTERS (916) 923-5447 8511 1 MR. HERRICK: Mr. Chairman, without further 2 interrupting, if there's no further questions for 3 Dr. Orlob, maybe he could just go for today. He's coming 4 back. 5 MR. BRANDT: That's fine. 6 C.O. STUBCHAER: All right. Dr. Orlob, you're 7 excused. Thank you for your appearance. 8 MR. HILDEBRAND: Gives you an extra half hour. 9 MR. BRANDT: Mr. Hildebrand, would you propose any 10 difference in the way the Bureau provides or releases water 11 for the senior right holders at New Melones? 12 MR. HILDEBRAND: You have to define what you mean by 13 that. The contracts which the Bureau gave to the O.I.D. 14 and SSID were for bodies of water in excess of what they 15 need to use for their own purposes within their own 16 boundaries. 17 We do not think that it would be appropriate to 18 change their underlying water rights, but we don't see that 19 the difference between that and the contractual right is a 20 right above these other needs. 21 MR. BRANDT: So then you would propose that we, 22 particularly in dry years, reduce the amount provided to 23 the senior right holders? 24 MR. HILDEBRAND: When there's insufficient water to 25 take care of other obligations, yes. CAPITOL REPORTERS (916) 923-5447 8512 1 MR. BRANDT: Have you done any study on the needs of 2 the senior right holders, the water needs of the senior 3 water rights holders? 4 MR. HILDEBRAND: I'm not sure I know what you mean by 5 that. We obtained from the Bureau the amount of water 6 that's actually been delivered to those two districts, and 7 it is typically less than the contractual right. And if we 8 went all the way back to their underlying right is the 9 amount that they diverted for their use within their 10 boundaries prior to 1914. 11 Now, how available those numbers are, I don't 12 know, but that would be the basis on which you would say 13 that their underlying right must be honored. And a 14 contractual right in excess of that seems to me to have no 15 more credence than the contractual right to send water to 16 Stockton East. 17 MR. BRANDT: Do you consider Stockton East within the 18 watershed of the Stanislaus River? 19 MR. HILDEBRAND: Well, the area of origin refers not 20 only to those within the watershed but also those that are 21 immediately adjacent thereto and can be conveniently served 22 thereby. So I think they have to be included within the 23 area of origin. 24 MR. BRANDT: I didn't ask you about area of origin. 25 Do you consider Stockton East within the watershed of the CAPITOL REPORTERS (916) 923-5447 8513 1 Stanislaus River? 2 MR. HILDEBRAND: Not within the watershed, no. 3 MR. BRANDT: During the drought in the early '90s, do 4 you recall -- do you recall the amounts that were provided 5 to each of the uses of New Melones water including the 6 senior right holders, releases for fish, releases for water 7 quality, do you recall approximately those amounts? 8 MR. HILDEBRAND: I don't think it was the same each 9 year. But in round numbers what it amounted to was that it 10 did provide, I think, the full 98,000 rather than the 11 65,000 for fishery. I'm almost certain about that 12 recollection. 13 It did take care of the water quality sufficient 14 to avoid substantial increases in salinity above 500 parts 15 per million. It did meet the obligations to the two 16 districts which are limited to the -- as a maximum to the 17 inflow available in a given year. I think that was just 18 about it. 19 MR. BRANDT: Okay. So there were no deliveries to 20 CVP contractors during that -- 21 MR. HILDEBRAND: No. No. 22 MR. BRANDT: Okay. 23 MR. HILDEBRAND: And there was no deliveries for 24 fishery over and above the 98,000. 25 MR. BRANDT: Did you propose during those early '90s CAPITOL REPORTERS (916) 923-5447 8514 1 another way to allocate water for releases in New Melones? 2 MR. HILDEBRAND: I am not sure I know what you mean 3 about that. Are you talking about proposing it during that 4 drought situation, or long term, or what? 5 MR. BRANDT: During the drought situation, as part of 6 stakeholder meeting that I think you testified you were 7 part of. 8 MR. HILDEBRAND: No, we were faced with a situation 9 that resulted from prior actions and combined with the 10 drought situation, and we just went almost month-by-month 11 deciding what to do. 12 MR. BRANDT: So you accepted it as a reasonable 13 allocation of limited water resources? 14 MR. HILDEBRAND: Yes. We were able to reach an 15 amicable reasoning on that, but at that time going along 16 arbitrarily to sign a release for water for some other 17 purpose over and above those figures. 18 MR. BRANDT: You've referenced several times this 19 figure of the San Joaquin River Agreement would provide for 20 violations in 40 percent -- 40 percent of the time; is that 21 correct? 22 MR. HILDEBRAND: 40 percent of the water years. 23 MR. BRANDT: Okay. Now, are you suggesting that that 24 would be a violation throughout that -- each of those water 25 years, 40 percent of the entire water years? CAPITOL REPORTERS (916) 923-5447 8515 1 MR. HILDEBRAND: Not throughout the water years. 2 However, if you look at Dan Steiner's analyses, it was both 3 frequent and substantial. 4 MR. BRANDT: Okay. Are you aware of how many days -- 5 how many years that the violations would have been less 6 than three months? 7 MR. HILDEBRAND: Well, I can't tell you that from 8 memory. You should first pull out the years that are very 9 wet years when we don't have any salinity problem anyway 10 and look at the extent to which they're violating in the 11 other years. And if you do that, as I say, it's both 12 frequent and substantial, but I don't know the numbers. 13 That testimony is all in the record. 14 MR. BRANDT: So just within the dry years you're 15 suggesting that it's, as you say, frequent and substantial? 16 MR. HILDEBRAND: It's not just dry years. In fact, 17 the greatest violations tend to occur in below-normal 18 years, greatest violations in terms of inadequacy of 19 dilution water. 20 MR. BRANDT: Are you aware of how many years during 21 the study period that the violations would occur in two 22 months? 23 MR. HILDEBRAND: It's all in the record. I wouldn't 24 try to do it from memory. If you go back to the testimony 25 that he gave at the time that Steiner's testimony was CAPITOL REPORTERS (916) 923-5447 8516 1 inserted and our cross-examination of that and our own 2 testimony, then -- I guess this was Page 2 -- you'll find 3 all those numbers in there. 4 MR. BRANDT: So your conclusion is based on 5 Steiner's, Mr. Steiner's testimony? 6 MR. HILDEBRAND: No, based on the Bureau's analyses 7 and Steiner's analyses and on our appraisal of those 8 analyses. 9 MR. BRANDT: What is the Bureau's analysis? Do you 10 recall when that was done? 11 MR. HILDEBRAND: I don't know if I can recall a 12 precise date, but we submitted the Bureau's material in our 13 testimony. And it was within the last couple of years. 14 And it was submitted to the stakeholders' group, Stanislaus 15 stakeholders' group, and then we introduced that in 16 testimony before the Board. 17 MR. BRANDT: Is that the one page that you gave us 18 that you took out of the larger report? 19 MR. HILDEBRAND: Yeah. 20 MR. HERRICK: Actually, it's two pages, if I may, and 21 it's the same stuff contained on the Bureau's witness 22 Lowell Ploss's 2-A testimony, that apparently is not going 23 to be provided. 24 MR. BRANDT: Actually, it's already in the record. 25 MR. HERRICK: Okay. CAPITOL REPORTERS (916) 923-5447 8517 1 MR. BRANDT: Let's go to the barriers. I want to 2 understand a couple comments that you make. First of all, 3 you state that, 4 (Reading): 5 "DWR, USBR choose not to admit in public the 6 barriers are the best and only practical method 7 of mitigating the adverse effects of the export 8 pumps on the South Delta." 9 Do you recall that? 10 MR. HILDEBRAND: Yeah. 11 MR. BRANDT: I want to make sure that I understand 12 that. When you say, "Best and only practical method of 13 mitigating the adverse effects of the export pumps on the 14 South Delta," do you mean on the South Delta Water Agency 15 and its constituents? 16 MR. HILDEBRAND: The channels, 75 miles of channel 17 within the South Delta Water Agency's property. 18 MR. BRANDT: So this is not talking in any way of 19 impacts on fisheries? 20 MR. HILDEBRAND: No. 21 MR. BRANDT: Okay. So you haven't made any 22 conclusions as to what the barriers would do to the 23 fisheries, correct? 24 MR. HILDEBRAND: We don't -- again, we're not 25 biologists. We don't pretend to be. But we have CAPITOL REPORTERS (916) 923-5447 8518 1 determined that if you don't have the barriers, there's 2 certain consequences which appear to us based on what these 3 fish people say fish need would be detrimental also to the 4 fishery. 5 But so far as maintaining the water levels, the 6 water circulation that's needed in order to control 7 salinity and to provide the reasonable salinity for our 8 people, we and the DWR and the Bureau, after years and 9 years of study, were unable to come up with any other 10 solution. Whether the barriers were detrimental to the 11 fishery or not is arguable. 12 If you'll recall the testimony of Mr. Vandenberg 13 in support of their reluctance about the barriers, he was 14 unable to really substantiate any of their objections. And 15 I've been informed since then that although the Fish and 16 Wildlife has objected to the barriers of and by themselves, 17 that they are open to the thought that if the barriers are 18 merely part of an overall plan that also have benefits to 19 the fishery, they might not object to it. Now, that's 20 hearsay, so I guess you don't want to talk about it. 21 MR. BRANDT: Wasn't that in Mr. Vandenberg's 22 testimony, though? 23 MR. HILDEBRAND: I don't recall whether he made that 24 latter statement himself, but it's my understanding that 25 that's hearsay. I guess I have to apologize for giving a CAPITOL REPORTERS (916) 923-5447 8519 1 hearsay answer to a question requesting hearsay. 2 MR. BRANDT: At this point I'm just trying to 3 understand what your understanding is, so that's fine. So 4 your conclusion that it's the best and only practical 5 method really ignores any effects on fisheries, correct? 6 MR. HILDEBRAND: I wouldn't want to say it ignores 7 it. It's the best from our point of view, and we have seen 8 no testimony that is convincing to indicate that it is bad 9 for fishery. 10 MR. BRANDT: Are you proposing that the Board require 11 tidal barriers? 12 MR. HILDEBRAND: I'm uncertain as to just what 13 authority the Board has to require a physical facility like 14 that. But they, certainly, would have as much right to do 15 that as to require a fish barrier at the head of Old River. 16 And they could make requirements that could only be met by 17 having the barriers. So I assume there are ways to do it, 18 but I don't know. 19 MR. BRANDT: But you acknowledge that any such 20 requirement would be subject and contingent upon approvals 21 by the fish agency, the Corps of Engineers and Fish and 22 Game, correct? 23 MR. HILDEBRAND: Oh, that's right. 24 MR. BRANDT: Is that an easy thing to do, to get 25 those approvals? CAPITOL REPORTERS (916) 923-5447 8520 1 MR. HILDEBRAND: Pardon me? 2 MR. BRANDT: Is that an easy thing to do, to get 3 those approvals? 4 MR. HILDEBRAND: Oh, by no means. I think we would 5 have the permits if it were not for Fish and Wildlife. 6 MR. BRANDT: Let me understand your position on your 7 constituents' rights to divert water in relationship to the 8 tidal barriers. Do those rights exist, from your point of 9 view, regardless of the condition of the -- or the 10 condition -- condition of the method, or the condition of 11 the diversion structure? 12 MR. HERRICK: If I may object. I think you need to 13 be a little more specific about "those rights." South 14 Delta diverters may have all sorts of rights including 15 riparian, pre-1914 and permitted rights. 16 C.O. STUBCHAER: Yes. Could you restate the 17 question. 18 MR. BRANDT: Yes. Let me lead up to it. 19 Mr. Hildebrand, is it your position that your 20 constituents have some rights, water rights that are -- 21 that basically would require the tidal barriers in order 22 for the projects to continue pumping? 23 MR. HILDEBRAND: I think our rights require that the 24 projects mitigate impacts on us that impede our ability to 25 divert in certain times, or which causes us to have CAPITOL REPORTERS (916) 923-5447 8521 1 salinity problems. 2 MR. BRANDT: Do the projects have a duty to mitigate 3 impacts caused by the condition of an individual right 4 holder's diversion structure? 5 MR. HILDEBRAND: You mean does one diverter in the 6 South Delta have a right against another diverter? 7 MR. BRANDT: No. Does a diverter in the South Delta 8 have a right against the projects to require the projects 9 to mitigate for pumping -- sorry -- to mitigate for 10 problems that that right holder has due to its own 11 diversion structure? 12 MR. HILDEBRAND: Well, I'm not aware that that 13 situation exists. In the absence -- when you shut down all 14 the exports, we don't have a problem. 15 MR. BRANDT: Okay. Let me ask you again: If a 16 diversion structure -- if silt in a -- strike that. 17 If the diversion channel has silted up preventing 18 diversion by a South Delta right holder, does the -- do the 19 projects have some duty in your view to mitigate for that 20 problem with the diversion structure? 21 MR. HILDEBRAND: If we could not divert even though 22 the projects were totally shut down, unless they had no 23 responsibility for the agridation, then, no, the project 24 wouldn't have responsibility. But if our ability to divert 25 has been diminished -- let me put it another way. CAPITOL REPORTERS (916) 923-5447 8522 1 If our ability to tolerate the drawdown by the 2 export pumps has been diminished because of agridation, the 3 projects still have to shut down if we could divert in the 4 absence of the project. So it's in the interest of the 5 project to be willing to maintain adequate depth so that we 6 can divert, in other words, provide more margin between the 7 ability to export versus our ability to divert. 8 And what's happened in the last couple of years 9 with these high flows is we have had agridation which has 10 diminished the amount of draw -- export pump drawdown that 11 we can tolerate and still divert. So we've had discussions 12 outside of this framework to -- with the Bureau as recently 13 as yesterday and the DWR to examine the local places that 14 have had the most serious agridation. 15 And we've talked with the Corps about getting 16 permits to go in and do some maintenance dredging in those 17 spots where we get the most bang for our buck to remove 18 them. And the benefit from that would be largely that the 19 exports then don't have to shut down as often to avoid from 20 hurting us. 21 MR. BRANDT: But you've never obtained those permits 22 to do that kind of dredging, have you? 23 MR. HILDEBRAND: We haven't obtained them, but we 24 have had discussions both with the Corps in Sacramento and 25 the Corps people from San Francisco recently. And they've CAPITOL REPORTERS (916) 923-5447 8523 1 encouraged us to believe that unless we have trouble with 2 Fish and Wildlife, that we could probably do this. 3 MR. BRANDT: Have the -- have any of the constituents 4 to South Delta or South Delta Agency, the Water Agency 5 itself considered consolidating diversion points possibly? 6 MR. HILDEBRAND: It's not a very practical thing to 7 do. Of course, we do have some consolidation in areas 8 within the district. But we have -- our diverters are 9 scattered over 75 miles of channel. There's dozens and 10 dozens of them. I would distribute the water among those 11 people other than through the channels since it's not a 12 very practical thing to do. 13 There's been some talk about wanting to put in a 14 peripheral canal and have us take water out of the canal, 15 but most of these people would be upstream of the canal so 16 water wouldn't just flow to them. So it's not a very 17 practical thing. Those people who have advocated that have 18 never come up with an example how it could be done. 19 Of course, we do have consolidation, for example, 20 within the Carbona District, within my reclamation 21 district, in the west side Irrigation District, but it's a 22 matter of local areas if we divert from the water closely 23 adjacent to places and feed it into a piping system and 24 that sort of thing. 25 MR. BRANDT: Are you aware of anyone in the South CAPITOL REPORTERS (916) 923-5447 8524 1 Delta Water Agency who has allowed a fishery agency to use 2 their diversion structure for its effects on fisheries? 3 MR. HILDEBRAND: Yes, we have. In my district, in 4 the district down on the Fabian Tract with the assistance 5 of DWR, Fish and Game came in and screened the entire 6 output of our diversion pumps to see what fish were in them 7 and we didn't catch any endangered species. We didn't 8 catch any salmon. The number of fish that were entrained 9 would have hardly have supported it. 10 What appears to happen is that in the South Delta 11 most of the pumps, not quite all of them, but most of them 12 are submerged turban pumps. Those turban pumps vibrate and 13 apparently the fish evade that vibration before they get 14 drawn to where the velocity would flow toward the pump is 15 more than the fish can handle. So we get very few fish. 16 They're small fish. 17 And as I say, the effort that was made over -- not 18 just for a day or two, but over a period of weeks, there 19 were no Delta smelt, there were no San Joaquin salmon, very 20 few fish. 21 MR. BRANDT: So this was just one occasion over a 22 several week period, correct? 23 MR. HILDEBRAND: In each case, yes. 24 MR. BRANDT: "In each case," how many cases? 25 MR. HILDEBRAND: Those two. In my district and then CAPITOL REPORTERS (916) 923-5447 8525 1 down on the Fabian Tract, rather, two representative 2 locations. 3 MR. BRANDT: On Page 9 you suggest that reducing 4 exports will, quote, "Force the Bureau to take action on 5 the valley salt problem caused by the CVP." 6 Do you recall that testimony? 7 MR. HILDEBRAND: Yes. 8 MR. BRANDT: I know Mr. Birmingham examined you a 9 little bit on this. 10 MR. HILDEBRAND: Oh, he did, yeah. 11 MR. BRANDT: My question for you is: Can you tell 12 me, does the Bureau have the authority to have the -- the 13 authority and appropriation to be able to fix what you 14 allege to be the valley salt problem caused by the CVP? 15 MR. HILDEBRAND: Would you restate that? 16 MR. BRANDT: Does the Bureau have the authority and 17 the appropriation to provide -- to take action on the 18 valley salt problem caused by the CVP? 19 MR. HILDEBRAND: My understanding is that the Bureau 20 has the responsibility to mitigate its impact. I don't 21 know what authority it needs to do that. 22 MR. BRANDT: Has Congress ever appropriated the money 23 to review -- rebuild the drain? 24 MR. HILDEBRAND: Congress was obligated by the 25 initial authorization of the CVP to build a drain. It CAPITOL REPORTERS (916) 923-5447 8526 1 levied surcharges on its contractors for years and years to 2 help pay for the drain, then they never built it. And the 3 legislation explicitly stated they weren't to deliver water 4 until they built the drain. 5 MR. BRANDT: Are you aware of litigation regarding 6 the drain -- 7 MR. HILDEBRAND: I understand that there's some -- 8 C.O. STUBCHAER: Mr. Hildebrand. 9 MR. BRANDT: Let me just finish my question. 10 MR. HILDEBRAND: Oh, I'm sorry again. 11 MR. BRANDT: Are you aware of litigation regarding 12 the drain by those who oppose the building of the drain? 13 MR. HILDEBRAND: I don't think I was aware of 14 litigation by those opposing building it. I had heard 15 there was litigation by those supporting it. 16 MR. BRANDT: Okay. Are you aware of anyone who has 17 ever disputed that the CVP is the cause of the San Joaquin 18 River salinity problem? 19 MR. HILDEBRAND: Well, the Bureau was denying it up 20 until the assistant Secretary of Interior insisted on 21 writing the June 1980 report. 22 MR. BRANDT: Are you aware of anybody else who would 23 dispute whether the CVP is the sole cause of the San 24 Joaquin salinity problem? 25 MR. HILDEBRAND: I don't know of any specific case, CAPITOL REPORTERS (916) 923-5447 8527 1 but you can always find somebody. 2 MR. BRANDT: If I may have just a moment. 3 Can you explain to me, Mr. Hildebrand, why it is 4 that you allege that the culverts in a fish barrier at the 5 head of Old River would help the smelt? 6 MR. HILDEBRAND: Assuming that the fish barrier is 7 going to be installed, if you don't provide means of 8 letting water through the fish barrier in some controlled 9 manner, you then have to yank it out when the flow gets too 10 high. So the fish that -- I would consider it being more 11 the salmon rather than the smelt -- would lose that benefit 12 if you have to take the barrier out because you can't 13 tolerate the magnitude of the flow. 14 And if you have the fish barrier in, you have to 15 have the downstream barriers to keep the fish barrier from 16 dewatering the downstream barriers. In the downstream 17 channels, if we have zero flow stagnant reaches in those 18 channels, that's how we get the fish, as well as it's not 19 tolerable for us. And so what we need is to be able to 20 have a coordinated operation of operable barriers in all 21 four locations. And if you have that operability, you can 22 do much better by, at times, letting some water through the 23 barrier rather than -- the fish barrier rather than taking 24 it out. 25 MR. BRANDT: Can you explain your statement, "When CAPITOL REPORTERS (916) 923-5447 8528 1 there is a smelt problem like this," and you refer to the 2 culverts, "we could help avoid the smelt take problems by 3 decreasing the amount of water flowing from the Central 4 Delta"? 5 MR. HILDEBRAND: Yes. It's alleged that the smelt 6 may be influenced adversely by the flow of water to the 7 Central Delta towards the pumps, that it is caused by 8 having the base barrier or other three barriers 9 functioning. Now if you can let some water -- part of the 10 flow of the river go down part of the Central Delta but 11 also let part of it come down through the Old River, 12 Grantline Canal, then you reduce the extent which you've 13 increased the flow toward the pumps. 14 MR. BRANDT: And this is not based on your expertise 15 and your understanding: This is based on someone else has 16 told you this? 17 MR. HILDEBRAND: You mean my expertise regarding the 18 hydrology or -- 19 MR. BRANDT: Biology. 20 MR. HILDEBRAND: Biology, no, I don't claim to be a 21 biologist. I go by what people tell me. 22 MR. BRANDT: But doesn't this definitely sound like a 23 biological opinion? 24 MR. HILDEBRAND: We've got a lot of trouble with the 25 biologists in the difference of understanding what the CAPITOL REPORTERS (916) 923-5447 8529 1 hydrology is. And the reasons they sometimes give us for 2 not doing something, because they have a different concept 3 of the hydrology than we have. We think we're more expert 4 on what the hydrology is than they are. And so if they 5 give us the reason for their position is based on hydrology 6 and we think their opinion of hydrology is incorrect, then 7 we think we're right and they're wrong. 8 MR. BRANDT: Let me go back to my question: Did 9 someone tell you this, tell you that this conclusion is 10 correct, that is a fishery biologist? 11 MR. HILDEBRAND: What specific conclusion are you 12 talking about? 13 MR. BRANDT: "When there is a smelt problem like 14 this, we could avoid smelt take problems by decreasing the 15 amount of water flowing from the Central Delta," is that 16 your own conclusion, or did some fishery biologist tell you 17 that? 18 MR. HILDEBRAND: Fishery biologists have maintained 19 that position that they believe that the flow of water from 20 the Central Delta towards the pumps was adverse to smelt. 21 When we reduce that flow, we let more water go down Old 22 River. 23 Now, as we indicated in our testimony they seem to 24 overlook the fact that if you don't have these barriers at 25 all, you then have a reverse flow in the San Joaquin River CAPITOL REPORTERS (916) 923-5447 8530 1 which also can bring smelt from the Central Delta up around 2 through that part of the pumps. 3 So you have to look at the difference here between 4 the movement of the smelt one way or the other way. They 5 believe, perhaps rightly, to the extent this is a problem, 6 it's a greater problem that more smelt would be drawn 7 towards the pumps directly from the Central Delta and then 8 would be drawn toward the pumps through the reverse flows 9 and then down the San Joaquin River, but that's a matter of 10 opinion. I don't know of any testimony or evidence to 11 corroborate it. 12 I think these lawyers should be provided with a 13 chair so they don't have to stand up so long. 14 C.O. STUBCHAER: How about an electric chair? 15 Mr. Brandt, does that conclude -- 16 MR. BRANDT: That does complete my cross-examination. 17 Thank you. 18 C.O. STUBCHAER: Good timing. Thank you. 19 Before we adjourn, I want to apologize to everyone 20 for any confusion that my ruling on the schedules may have 21 had. And I want to thank the parties who were ready to 22 step up to the plate this afternoon and continue the 23 cross-examination. And with that, we will adjourn until 24 9:00 a.m. tomorrow. 25 (The proceedings concluded at 3:51 p.m.) CAPITOL REPORTERS (916) 923-5447 8531 1 REPORTER'S_CERTIFICATE __________ ___________ 2 3 STATE OF CALIFORNIA ) ) ss. 4 COUNTY OF SACRAMENTO ) 5 I, MARY R. GALLAGHER, certify that I was the 6 Official Court Reporter for the proceedings named herein, 7 and that as such reporter I reported in verbatim shorthand 8 writing those proceedings; that I thereafter caused my 9 shorthand writing to be reduced to typewriting, and the 10 pages numbered 8118 through 8331 herein constitute a 11 complete, true and correct record of the proceedings. 12 IN WITNESS WHEREOF, I have subscribed this 13 certificate at Sacramento, California, on this 24th day of 14 January, 1999. 15 16 ________________________________ MARY R. GALLAGHER, CSR #10749 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 8532