STATE WATER RESOURCES CONTROL BOARD PUBLIC HEARING 1998 BAY-DELTA WATER RIGHTS HEARING HELD AT: BONDERSON BUILDING 901 P STREET SACRAMENTO, CALIFORNIA WEDNESDAY, JANUARY 13, 1999 9:00 A.M. Reported by: ESTHER F. WIATRE CSR NO. 1564 CAPITOL REPORTERS (916) 923-5447 1 APPEARANCES BOARD MEMBERS: 2 JAMES STUBCHAER, COHEARING OFFICER 3 JOHN W. BROWN, COHEARING OFFICER MARY JANE FORSTER 4 MARC DEL PIERO 5 STAFF MEMBERS: 6 WALTER PETTIT, EXECUTIVE DIRECTOR VICTORIA WHITNEY, CHIEF BAY-DELTA UNIT 7 THOMAS HOWARD, SUPERVISING ENGINEER 8 COUNSEL: 9 WILLIAM R. ATTWATER, CHIEF COUNSEL BARBARA LEIDIGH 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 PRINCETON CODORA GLENN IRRIGATION DISTRICT, et al.: 3 FROST, DRUP & ATLAS 134 West Sycamore Street 4 Willows, California 95988 BY: J. MARK ATLAS, ESQ. 5 JOINT WATER DISTRICTS: 6 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON: 7 P.O. BOX 1679 Oroville, California 95965 8 BY: WILLIAM H. BABER III, ESQ. 9 CALIFORNIA SPORTFISHING PROTECTION ALLIANCE: 10 ROBERT J. BAIOCCHI P.O. Box 357 11 Quincy, California 12 BELLA VISTA WATER DISTRICT: 13 BRUCE L. BELTON, ESQ. 2525 Park Marina Drive, Suite 102 14 Redding, California 96001 15 WESTLANDS WATER DISTRICT: 16 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 400 Capitol Mall, 27th Floor 17 Sacramento, California 95814 BY: THOMAS W. BIRMINGHAM, ESQ. 18 and AMELIA MINABERRIGARAI, ESQ. 19 THE BAY INSTITUTE OF SAN FRANCISCO: 20 GARY 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 1 REPRESENTATIVES 2 LEAGUE OF WOMEN VOTERS: 3 ROBERTA BORGONOVO 2480 Union Street 4 San Francisco, California 94123 5 UNITED STATES DEPARTMENT OF THE INTERIOR: 6 OFFICE OF THE SOLICITOR 2800 Cottage Way, Room E1712 7 Sacramento, California 95825 BY: ALF W. BRANDT, ESQ. 8 CALIFORNIA URBAN WATER AGENCIES: 9 BYRON M. BUCK 10 455 Capitol Mall, Suite 705 Sacramento, California 95814 11 RANCHO MURIETA COMMUNITY SERVICES DISTRICT: 12 MCDONOUGH, HOLLAND & ALLEN 13 555 Capitol Mall, 9th Floor Sacramento, California 95814 14 BY: VIRGINIA A. CAHILL, ESQ. 15 CALIFORNIA DEPARTMENT OF FISH AND GAME: 16 OFFICE OF ATTORNEY GENERAL 1300 I Street, Suite 1101 17 Sacramento, California 95814 BY: MATTHEW CAMPBELL, ESQ. 18 NATURAL RESOURCES DEFENSE COUNCIL: 19 HAMILTON CANDEE, ESQ. 20 71 Stevenson Street San Francisco, California 94105 21 ARVIN-EDISON WATER STORAGE DISTRICT, et al.: 22 DOOLEY HERR & WILLIAMS 23 3500 West Mineral King Avenue, Suite C Visalia, California 93291 24 BY: DANIEL M. DOOLEY, ESQ. 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 SACRAMENTO MUNICIPAL UTILITY DISTRICT: 3 LESLIE A. DUNSWORTH, ESQ. 6201 S Street 4 Sacramento, California 95817 5 SOUTH SAN JOAQUIN IRRIGATION DISTRICT, et al.: 6 BRAY, GEIGER, RUDQUIST & NUSS 311 East Main Street, 4th Floor 7 Stockton, California 95202 BY: STEVEN P. EMRICK, ESQ. 8 EAST BAY MUNICIPAL UTILITY DISTRICT: 9 EBMUD OFFICE OF GENERAL COUNSEL 10 375 Eleventh Street Oakland, California 94623 11 BY: FRED S. ETHERIDGE, ESQ. 12 GOLDEN GATE AUDUBON SOCIETY: 13 ARTHUR FEINSTEIN 2530 San Pablo Avenue, Suite G 14 Berkeley, California 94702 15 CONAWAY CONSERVANCY GROUP: 16 UREMOVIC & FELGER P.O. Box 5654 17 Fresno, California 93755 BY: WARREN P. FELGER, ESQ. 18 THOMES CREEK WATER ASSOCIATION: 19 THOMES CREEK WATERSHED ASSOCIATION 20 P.O. Box 2365 Flournoy, California 96029 21 BY: LOIS FLYNNE 22 COURT APPOINTED REPS OF WESTLANDS WD AREA 1, et al.: 23 LAW OFFICES OF SMILAND & KHACHIGIAN 601 West Fifth Street, Seventh Floor 24 Los Angeles, California 90075 BY: CHRISTOPHER G. FOSTER, ESQ. 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 CITY AND COUNTY OF SAN FRANCISCO: 3 OFFICE OF THE CITY ATTORNEY 1390 Market Street, Sixth Floor 4 San Francisco, California 94102 BY: DONN W. FURMAN, ESQ. 5 CAMP FAR WEST IRRIGATION DISTRICT, et al.: 6 DANIEL F. GALLERY, ESQ. 7 926 J Street, Suite 505 Sacramento, California 95814 8 BOSTON RANCH COMPANY, et al.: 9 J.B. BOSWELL COMPANY 10 101 West Walnut Street Pasadena, California 91103 11 BY: EDWARD G. GIERMANN 12 SAN JOAQUIN RIVER GROUP AUTHORITY, et al.: 13 GRIFFTH, MASUDA & GODWIN 517 East Olive Street 14 Turlock, California 95381 BY: ARTHUR F. GODWIN, ESQ. 15 NORTHERN CALIFORNIA WATER ASSOCIATION: 16 RICHARD GOLB 17 455 Capitol Mall, Suite 335 Sacramento, California 95814 18 PLACER COUNTY WATER AGENCY, et al.: 19 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 20 400 Capitol Mall, 27th Floor Sacramento, California 95814 21 BY: JANET GOLDSMITH, ESQ. 22 ENVIRONMENTAL DEFENSE FUND: 23 DANIEL SUYEYASU, ESQ. and 24 THOMAS J. GRAFF, ESQ. 5655 College Avenue, Suite 304 25 Oakland, California 94618 CAPITOL REPORTERS (916) 923-5447 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 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, ESQ. 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 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 95993 8 BROWNS VALLEY IRRIGATION DISTRICT, et al.: 9 BARTKEWICZ, 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 FLANNIGAN, MASON, ROBBINS & GNASS 3351 North M Street, Suite 100 20 Merced, California 95344 BY: MICHAEL 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 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 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 1 REPRESENTATIVES 2 PATRICK PORGANS AND ASSOCIATES: 3 PATRICK PORGANS P.O. Box 60940 4 Sacramento, California 95860 5 BROADVIEW WATER DISTRICT, et al.: 6 DIANE RATHMANN 7 FRIENDS OF THE RIVER: 8 BETSY REIFSNIDER 128 J Street, 2nd Floor 9 Sacramento, California 95814 10 MERCED IRRIGATION DISTRICT: 11 FLANAGAN, MASON, ROBBINS & GNASS P.O. Box 2067 12 Merced, California 95344 BY: KENNETH M. ROBBINS, ESQ. 13 CENTRAL SAN JOAQUIN WATER CONSERVATION DISTRICT: 14 REID W. ROBERTS, ESQ. 15 311 East Main Street, Suite 202 Stockton, California 95202 16 METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA: 17 JAMES F. ROBERTS 18 P.O. Box 54153 Los Angeles, California 90054 19 SACRAMENTO AREA WATER FORUM: 20 CITY OF SACRAMENTO 21 980 9th Street, 10th Floor Sacramento, California 95814 22 BY: JOSEPH ROBINSON, ESQ. 23 24 25 CAPITOL REPORTERS (916) 923-5447 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 SANDINO, ESQ. 7 CATHY CROTHERS, ESQ. P.O. Box 942836 8 Sacramento, California 94236 9 FRIANT WATER USERS AUTHORITY: 10 GARY W. SAWYERS, ESQ. 575 East Alluvial, Suite 101 11 Fresno, California 93720 12 KERN COUNTY WATER AGENCY: 13 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 400 Capitol Mall, 27th Floor 14 Sacramento, California 95814 BY: CLIFFORD W. SCHULZ, ESQ. 15 SAN JOAQUIN RIVER EXCHANGE CONTRACTORS: 16 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON: 17 P.O. Box 1679 Oroville, California 95965 18 BY: MICHAEL V. SEXTON, ESQ. 19 SAN JOAQUIN COUNTY: 20 NEUMILLER & BEARDSLEE P.O. Box 20 21 Stockton, California 95203 BY: THOMAS J. SHEPHARD, SR., ESQ. 22 CITY OF STOCKTON: 23 DE CUIR & SOMACH 24 400 Capitol Mall, Suite 1900 Sacramento, California 95814 25 BY: PAUL S. SIMMONS, ESQ. CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 ORLAND UNIT WATER USERS' ASSOCIATION: 3 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 4 Oroville, California 95965 BY: M. ANTHONY SOARES, ESQ. 5 GLENN-COLUSA IRRIGATION DISTRICT: 6 DE CUIR & SOMACH 7 400 Capitol Mall, Suite 1900 Sacramento, California 95814 8 BY: STUART L. SOMACH, ESQ. 9 NORTH SAN JOAQUIN WATER CONSERVATION DISTRICT: 10 JAMES F. SORENSEN CONSULTING CIVIL ENGINEER, INC. 209 South Locust Street 11 Visalia, California 93279 BY: JAMES F. SORENSEN 12 PARADISE IRRIGATION DISTRICT: 13 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 14 P.O. Box 1679 Oroville, California 95695 15 BY: WILLIAM H. SPRUANCE, ESQ. 16 COUNTY OF COLUSA: 17 DONALD F. STANTON, ESQ. 1213 Market Street 18 Colusa, California 95932 19 COUNTY OF TRINITY: 20 COUNTY OF TRINITY - NATURAL RESOURCES P.O. Box 156 21 Hayfork, California 96041 BY: TOM STOKELY 22 CITY OF REDDING: 23 JEFFERY J. SWANSON, ESQ. 24 2515 Park Marina Drive, Suite 102 Redding, California 96001 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 TULARE IRRIGATION DISTRICT: 3 TEHAMA COUNTY RESOURCE CONSERVATION DISTRICT 2 Sutter Street, Suite D 4 Red Bluff, California 96080 BY: ERNEST E. WHITE 5 STATE WATER CONTRACTORS: 6 BEST BEST & KREIGER 7 P.O. Box 1028 Riverside, California 92502 8 BY: ERIC GARNER, ESQ. 9 COUNTY OF TEHAMA, et al.: 10 COUNTY OF TEHAMA BOARD OF SUPERVISORS: P.O. Box 250 11 Red Bluff, California 96080 BY: CHARLES H. WILLARD 12 MOUNTAIN COUNTIES WATER RESOURCES ASSOCIATION: 13 CHRISTOPHER D. WILLIAMS 14 P.O. Box 667 San Andreas, California 95249 15 JACKSON VALLEY IRRIGATION DISTRICT: 16 HENRY WILLY 17 6755 Lake Amador Drive Ione, California 95640 18 SOLANO COUNTY WATER AGENCY, et al.: 19 HERUM, CRABTREE, DYER, ZOLEZZI & TERPSTRA 20 2291 West March Lane, S.B.100 Stockton, California 95207 21 BY: JEANNE M. ZOLEZZI, ESQ. 22 ---oOo--- 23 24 25 CAPITOL REPORTERS (916) 923-5447 1 INDEX 2 PAGE 3 RESUMPTION OF HEARING 8549 4 AFTERNOON SESSION 8684 5 SOUTH DELTA WATER AGENCY: ALEX HILDEBRAND 6 GERALD ORLOB CROSS-EXAMINATION: 7 BY MR. CAMPBELL 8549 BY MR. O'LAUGHLIN 8556 8 DEPARTMENT OF WATER RESOURCES: 9 POLICY STATEMENT BY MR. SANDINO 8684 10 DWIGHT RUSSELL DIRECTION EXAMINATION: 11 BY MR. SANDINO 8688 CROSS-EXAMINATION: 12 BY MR. NOMELLINI 8695 BY MR. HERRICK 8709 13 BY MR. BIRMINGHAM 8736 BY MR. HASENCAMP 8749 14 15 ---oOo--- 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 1 SACRAMENTO, CALIFORNIA 2 WEDNESDAY, January 13, 1999 3 ---oOo--- 4 C.O. STUBCHAER: Good morning, everyone. We will call 5 the hearing back to order. We are going to resume 6 cross-examination of the South Delta Water Agency panel. 7 Mr. Campbell, good morning. 8 ---oOo--- 9 CROSS-EXAMINATION OF SOUTH DELTA WATER AGENCY 10 BY THE DEPARTMENT OF FISH AND GAME 11 BY MR. CAMPBELL 12 MR. CAMPBELL: Good morning, Mr. Chairman. Matthew 13 Campbell of the Attorney General's Office on behalf of the 14 Department of Fish and Game. 15 My cross-examination will be brief. Primarily because 16 Mr. Brandt and Mr. Hildebrand covered most of the ground 17 yesterday. 18 Yesterday, Mr. Hildebrand, I believe you testified 19 that you are not a biologist, that you don't hold yourself 20 out as a biological expert; is that correct? 21 MR. HILDEBRAND: That's correct. 22 MR. CAMPBELL: Due to that view and South Delta Water 23 Agency, in your testimony you are relying on your 24 understanding, your interpretation, of what you said by the 25 panel of biologists in Phase II? CAPITOL REPORTERS (916) 923-5447 8549 1 MR. HILDEBRAND: That's correct. But I also explained 2 that some of the biological opinions that have been rendered 3 were based on the understanding of the biologists of the 4 hydrology. We think we are more expert than they are on 5 that. Their understanding is incorrect, and, therefore, 6 their biological opinion is incorrect insofar as based on 7 hydrology. 8 MR. CAMPBELL: Is it correct that South Delta Water 9 Agency has not conducted any independent biological analysis 10 of the San Joaquin River Agreement and the Vernalis Adaptive 11 Management Plan? 12 MR. HILDEBRAND: I acknowledged that yesterday. 13 MR. CAMPBELL: It is also correct that South Delta 14 Water Agency has not conducted any independent biological 15 analysis of the Comprehensive Water Management Plan that you 16 have proposed here in your testimony? 17 MR. HILDEBRAND: That's correct. 18 MR. CAMPBELL: According to your written testimony, 19 South Delta Water Agency Exhibit 51, with regard to your 20 proposed Comprehensive Water Management Plan, you contend 21 that smolts would be protected before and after the 31-day 22 pulse flow period; is that correct? 23 MR. HILDEBRAND: That is correct. Particularly, I am 24 making that contention as contrast with the San Joaquin 25 River Agreement which has a potential for decreasing the CAPITOL REPORTERS (916) 923-5447 8550 1 protection of the smolts before and after. 2 MR. CAMPBELL: In reading through your testimony, again 3 yesterday, I noticed that contention, but I didn't see the 4 explanation of how that would work. 5 MR. HILDEBRAND: As we have discussed, the source of 6 water for the pulse flow under the agreement would be, in 7 substantial part at least, a result from the shifting of 8 time of flow from summer to the pulse flow. Well, I 9 shouldn't say summer; from other times of the year into the 10 pulse flow. It could, therefore, reduce the flow available 11 for the smolt transport before and after the pulse flow. 12 MR. CAMPBELL: Is there any biological information that 13 supports your contention that smolts would be protected 14 before and after the 31-day pulse period under your 15 Comprehensive Water Management Plan? 16 MR. HILDEBRAND: The biologists, as I understand it, 17 have consistently taken the position that more flow is 18 better for smolts. So if you reduce the flow, the inference 19 would be less beneficial for smolts. Otherwise, why would 20 you be having a pulse flow at all, if there was no flow 21 dependence there? 22 MR. CAMPBELL: As I recall, you just testified that you 23 haven't conducted any independent biological analysis as to 24 whether these asserted biological benefits would, in fact, 25 be realized? CAPITOL REPORTERS (916) 923-5447 8551 1 MR. HILDEBRAND: I merely look at the logic, that if 2 they say the pulse flow -- increased flow during the pulse 3 is beneficial to smolts, then the decrease at some other 4 time must be detrimental to the smolts. 5 MR. CAMPBELL: No further questions. 6 C.O. STUBCHAER: Thank you, Mr. Campbell. 7 Mr. O'Laughlin. 8 MR. HERRICK: Mr. Chairman, before we begin, I would 9 just like to remind everybody that Mr. Hildebrand had to 10 leave today at noon. So, it is our anticipation that this 11 panel will go through noon and start again, I believe, next 12 -- Tuesday is our next day; is that correct? 13 C.O. STUBCHAER: Yes. I believe Tuesday is our next 14 day. 15 MS. LEIDIGH: It is. 16 MR. NOMELLINI: May I ask where we are going to go this 17 afternoon? 18 C.O. STUBCHAER: Well, I want to ask Mr. Godwin how 19 much cross-examination he thinks he will have of Mr. 20 Hildebrand. 21 MR. GODWIN: In an effort to speed things up a little 22 bit, I gave all my questions to Mr. O'Laughlin. He is going 23 to ask some of them, I think. 24 C.O. STUBCHAER: And, Mr. O'Laughlin, you estimated a 25 fairly lengthy period of time when you first began your CAPITOL REPORTERS (916) 923-5447 8552 1 cross-examination of Mr. Hildebrand. Do you have a current 2 estimate of how long you think your examination of Mr. 3 Hildebrand might take? 4 MR. O'LAUGHLIN: I clearly believe that the 5 cross-examination of Mr. Hildebrand and Mr. Orlob will take, 6 if allowed by the State Board, will take in excess of the 7 three hours this morning. 8 C.O. STUBCHAER: Could you direct your questions to Mr. 9 Hildebrand first or are they intermingled? 10 MR. O'LAUGHLIN: No. Actually what I have done, I 11 broke it out to the testimony of Mr. Hildebrand and then the 12 testimony of Mr. Orlob. So I could try to get as far as I 13 can with Alex today and see where we end up with that, and 14 then start on Mr. Orlob. 15 My questioning of Mr. Orlob will take significantly 16 less time than my cross-examination of Mr. Hildebrand. 17 C.O. STUBCHAER: Since Mr. Godwin has yielded his 18 questions to you, you are the last examiner, according to my 19 list. So, might you conclude Mr. Hildebrand by noon, 20 possibly? 21 MR. O'LAUGHLIN: That depends. I don't -- if I get yes 22 and no responses to my questions, we will clearly be done by 23 noon. But I have not heard a yes or no response from Mr. 24 Hildebrand in Phase I, II, V or in this phase. I will do 25 everything to -- I coordinated with every attorney on the CAPITOL REPORTERS (916) 923-5447 8553 1 San Joaquin River Group to try to coordinate the 2 cross-examination, try not to be redundant. I will do 3 everything possible to speed this process up. 4 But given the importance of what is being presented in 5 Mr. Hildebrand's presentation, I think it is worth the time 6 to go through it. Because this is -- if I understood the 7 testimony correctly so far, there is the San Joaquin River 8 Agreement that is being proposed. Some parties have 9 proposed Alternative 5 in this process. Then there is 10 recirculation. This document and the according exhibits are 11 a very important part of what we need to consider as we move 12 forward in making decisions on the San Joaquin River. And 13 considering that this is one of the alternatives for the San 14 Joaquin River that has not yet been explored, I think we 15 should spend some time with it. 16 I know I have told Mr. Hildebrand this. I don't want 17 to beat him up. I just want to understand. If he wants to 18 take breaks or take time, you know, we can do whatever we 19 need to do. But I think it is very important. This 20 recirculation concept has been around for quite some time 21 now, and I think it is time that we all fully understand 22 what it means and its impacts, how it is good and how it is 23 bad. In considering that we spent almost five days of 24 testimony on the San Joaquin River Agreement in Phase II, 25 this merits at least that much consideration during this CAPITOL REPORTERS (916) 923-5447 8554 1 time period. So, I will try to endeavor, Chairman, to go as 2 speedily as possible. 3 The other thing I would like to say this morning, I am 4 extremely sorry for the scheduling mix-up yesterday. I 5 misunderstood. I left to go back to my office to get Mr. 6 Orlob's testimony and cross-examination, and I did not know 7 that it was the Board's desire to have me here yesterday 8 afternoon to prepare my cross-examination. Otherwise I 9 would have been here. I apologize for that confusion. 10 C.O. STUBCHAER: I said at the close of the session 11 yesterday that I apologize for any confusion that my rulings 12 on the scheduling made, too. 13 Mr. Nomellini. 14 MR. NOMELLINI: If we stop with this panel at noon, are 15 we going to go to Central Delta or are we going to go to 16 DWR? I am just trying -- 17 C.O. STUBCHAER: I understand. 18 MR. NOMELLINI: -- to get lined up so I don't hold up 19 the process. 20 C.O. STUBCHAER: We actually are -- if we went back in 21 the normal order, we'd hear from Mr. Brandt and then we'd 22 hear from Department of Water Resources. 23 You had indicated that you want to follow South Delta, 24 and I am flexible. If you want to have a brief discussion. 25 I don't want to take away -- why don't we defer -- well, you CAPITOL REPORTERS (916) 923-5447 8555 1 have to line up a witness. 2 MR. NOMELLINI: Is DWR ready to go? 3 UNIDENTIFIED VOICE: They're ready. 4 MR. NOMELLINI: Maybe we can plan on DWR following 5 South Delta, and then we can decide whether I should have 6 Zuckerman come up. 7 C.O. STUBCHAER: Mr. Hildebrand, you have to leave 8 precisely at noon or a little after noon, or what? 9 MR. HILDEBRAND: I need to leave before 1:00. 10 C.O. STUBCHAER: We may go a little past noon. I have 11 a conference call at 12:30. Those are the limits. 12 All right, Mr. O'Laughlin, please proceed. 13 MR. O'LAUGHLIN: Thank you. 14 ---oOo--- 15 CROSS-EXAMINATION OF SOUTH DELTA WATER AGENCY 16 BY THE SAN JOAQUIN RIVER GROUP AUTHORITY 17 BY MR. O'LAUGHLIN 18 MR. O'LAUGHLIN: Morning, Mr. Hildebrand, Dr. Orlob. 19 How are you this morning? 20 DR. ORLOB: Good morning. Thank you. 21 MR. O'LAUGHLIN: Alex, Mr. Hildebrand, excuse me, my 22 questions will be directed to you this morning. I would 23 like to first start off this morning and talk about some of 24 the underlying principles that you had in mind when you came 25 up with your testimony. CAPITOL REPORTERS (916) 923-5447 8556 1 What is your view of how the State Water Resources 2 Control Board should go about making a decision on 3 implementing the 1995 Water Quality Control Plan in regards 4 to the Vernalis standard? Let me give you more to focus in 5 on that. 6 Do you believe that it should be done strictly on a 7 water right priority basis? Do you believe it should be 8 done on he who causes the harm should cause the solution? 9 Do you believe it should be this new theory we hear them 10 out, share the pain or equitable apportionment? What is 11 your view of that in drafting your testimony? 12 MR. HILDEBRAND: First, I think that the manner of 13 implementation should be based on a comprehensive solution 14 to the problems of both salinity and flow in the 15 overcommitted San Joaquin River system. I think that in 16 doing that you will have to look at reasonableness of use of 17 water and minimize the deficiency that we have, avoid 18 increasing that deficiency. You must confirm to the 19 priority of water rights and to the principle that those who 20 cause a problem should mitigate it. 21 As I indicated extensively, I think that problems in 22 the San Joaquin watershed are from a salinity point of view 23 almost entirely caused by the Bureau, and from a flow point 24 of view substantially caused by the Bureau, but not 25 entirely. CAPITOL REPORTERS (916) 923-5447 8557 1 MR. O'LAUGHLIN: Would it be safe to say that when you 2 were preparing your testimony and you were looking at this 3 plan, that one of the first places you wanted to start with 4 was those parties that are responsible for causing harm, 5 either to degradation for salinity or flow in the San 6 Joaquin River, should be the parties first responsible for 7 trying to mitigate for those impacts? 8 MR. HILDEBRAND: That's correct. But we should point 9 to a way of doing that that has the least burden on those 10 parties. 11 MR. O'LAUGHLIN: Let's take a hypothetical. Even if 12 there was the most senior water right holder on the San 13 Joaquin River, had a pre-1914 right, had it adjudicated, 14 everything was wonderful with that person, but yet they were 15 causing degradation to salinity of a substantial portion at 16 Vernalis, would you say that that party would then have to 17 mitigate for those harms even if their water right priority 18 was senior to everyone else's? 19 MR. HILDEBRAND: I think to start requiring the junior 20 party to mitigate his impact and then you move up the line 21 as necessary. 22 MR. O'LAUGHLIN: But let's say the junior party is not 23 causing any problem. The junior party is perfectly great. 24 They're not degrading the water. They're not unreasonably 25 using water. They're passing flows. They're doing CAPITOL REPORTERS (916) 923-5447 8558 1 everything perfectly right and not causing harm at 2 Vernalis. 3 Would you then say that senior water right holder has 4 to mitigate for those impacts? 5 MR. HILDEBRAND: If, after mitigating the impacts for 6 the other parties, there is still a problem, I don't know of 7 anybody on the system that doesn't cause some degradation. 8 So it's a question you move up the line as you have to. 9 MR. O'LAUGHLIN: So, then you really don't believe -- 10 then you don't believe that those who cause the harm should 11 mitigate the harm; you really believe in a water right 12 priority system, i.e., if there is a harm in the basin, we 13 should go from the most junior appropriator to the most 14 senior? 15 MR. HILDEBRAND: You start by mitigating the impact of 16 the most junior, and then if that is not adequate to meet 17 the requirements for downstream salinity, protection of 18 downstream riparian rights and public trust, then you have 19 to look to less senior people and see what their impacts 20 were. 21 MR. O'LAUGHLIN: Yours is kind of a hybrid. It's 22 mitigate your impacts on a basis of junior to senior. In my 23 hypothetical, then, if the junior -- if this junior 24 appropriator on the San Joaquin River in this hypothetical 25 world is not causing any impacts at Vernalis, then he gets CAPITOL REPORTERS (916) 923-5447 8559 1 to get a get-out-of-jail-free card and we go to the next 2 person and see what impacts they caused and see if they can 3 mitigate their own impact; is that correct? 4 Hypothetically. Don't get caught up in what you know 5 about the water right priority system and who has what 6 rights on the San Joaquin River, but strictly from a 7 hypothetical. The junior is not causing any problems. You 8 are not going to have him make up any mitigation or any 9 water at Vernalis; is that correct? 10 MR. HERRICK: If I may make an objection for incomplete 11 hypothetical. I think it is important to the answer to make 12 sure we are specifying what the harm is. If the harm is 13 decreased flow that a senior party is causing, that is 14 different than if somebody is polluting the stream. 15 MR. O'LAUGHLIN: In my hypothetical the junior is not 16 causing either a flow problem or quality problem. Is he 17 going to have to do anything for you at Vernalis to mitigate 18 for impacts caused by others? 19 MR. HILDEBRAND: Your hypothetical assumes that people 20 can use water without causing any impact on the salinity. 21 MR. O'LAUGHLIN: That's absolutely correct. So, you 22 assume that. Answer the question. 23 MR. HILDEBRAND: I don't think that can be done, so I 24 can't answer the question. 25 MR. O'LAUGHLIN: Here we go. I have been sitting here CAPITOL REPORTERS (916) 923-5447 8560 1 through the hearings. If Mr. Hildebrand is going to be 2 offered as a witness, he has to be responsive to the 3 questions. He may not like the questions, but he has to 4 respond to them. 5 It is one thing to say, "I don't like --" -- "I don't 6 understand the question." "Can you rephrase the question?" 7 But it is another thing to say, "I don't like that 8 question," and then not respond to it. We are going to be 9 here for a really long time. I know we want to give great 10 deference to Mr. Hildebrand. I am entitled to get responses 11 to my questions, and he is not being responsive. 12 C.O. STUBCHAER: Mr. Brown. 13 C.O. BROWN: I like the analogy, Mr. Chairman. I have 14 a great deal of respect for Mr. Hildebrand's knowledge and 15 fairness on these issues. I think the question is a fair 16 one. 17 Try to answer if you can, Mr. Hildebrand, to the best 18 of your ability. It is a good question. 19 C.O. STUBCHAER: I agree. 20 MR. HILDEBRAND: If this party, the senior party -- 21 MR. O'LAUGHLIN: Junior party, junior appropriator on 22 the San Joaquin River. 23 MR. HILDEBRAND: If this junior party is actually not 24 consuming any water, is not altering downstream flow, he's 25 not altering the salinity downstream, then, yeah, he isn't CAPITOL REPORTERS (916) 923-5447 8561 1 doing anything. He can't be held responsible. 2 MR. O'LAUGHLIN: So he is not responsible. We move up 3 the chain. As we move up the chain from the most junior to 4 the most senior water right holder, at some point in time we 5 will run across somebody who is causing a problem. 6 So let's run into hypothetical person X who has an 7 appropriative right on the San Joaquin River. They are 8 using a flow problem, i.e., not enough water reaching 9 Vernalis for the April/May pulse flow period. Okay? 10 What is your response? Does that person have to make 11 up his percentage of it, his full amount or bypass the 12 amount of water? What is his contribution? 13 MR. HILDEBRAND: You are talking about moving up in 14 order of priority? 15 MR. O'LAUGHLIN: Order of priority. We are half way up 16 now. 17 MR. HILDEBRAND: Whenever you get somebody who is 18 causing a problem, you have to mitigate it. 19 MR. O'LAUGHLIN: So, really, then, water right priority 20 doesn't mean anything in your scheme of things. It's let's 21 find out who is doing the harm, and once we find out who is 22 doing the harm, then we will have those persons mitigate for 23 their impacts? 24 MR. HILDEBRAND: That isn't what I said. What I said 25 was, you move up and you have to mitigate impacts in the CAPITOL REPORTERS (916) 923-5447 8562 1 sequence of the priority. So, if you come to somebody who 2 isn't causing a problem, you skip over him. The next one in 3 priority, if he is causing a problem, he has to mitigate 4 it. 5 MR. O'LAUGHLIN: That is your understanding of how the 6 Board should proceed in this hearing, is to go through the 7 list that they send out to all the parties on the San 8 Joaquin River and find you're diverting X amount of water 9 and by doing so you are, A, not contributing to the Vernalis 10 flow standard, B, not contributing to the water quality 11 standard at Vernalis, and, C, not contributing to Delta 12 outflow. And the board should go through each one of those 13 and find out what harm you are causing and how to mitigate 14 it? 15 MR. HILDEBRAND: Basically, I agree with that. 16 MR. O'LAUGHLIN: So, let's say the Board gets all done 17 with that. After that is done, let's say there is still not 18 enough water to meet the 1995 Water Quality Control Plan 19 plus flows at Vernalis during the April/May time period, 20 then what should the Board do? 21 MR. HILDEBRAND: That is the purpose of our 22 Comprehensive Plan, that you provide the water by an 23 increased multiple use, recycling of water, and thereby 24 achieve the purpose without taking water away from those 25 parties who aren't causing a problem. CAPITOL REPORTERS (916) 923-5447 8563 1 MR. O'LAUGHLIN: When you went through and did your 2 Comprehensive Plan, did you keep in mind this principle that 3 you went from the most junior appropriator on the San 4 Joaquin River and worked your way up to figure out who had 5 caused what problems for flow at Vernalis? 6 MR. HILDEBRAND: We extensively went into the question 7 of who caused the problem. 8 MR. O'LAUGHLIN: Of flow? 9 MR. HILDEBRAND: Flow and salinity. 10 MR. O'LAUGHLIN: I'll get to salinity. Let me ask the 11 question. 12 Then you went and looked at it from the junior 13 appropriator to the most senior appropriator, and you looked 14 at who was causing the water problem at Vernalis; is that 15 correct? 16 MR. HILDEBRAND: Yes. 17 MR. O'LAUGHLIN: Then, finally, did you do an analysis 18 of the most junior appropriator to the most senior 19 appropriator who was causing a problem on Delta outflow from 20 the San Joaquin River? 21 MR. HILDEBRAND: Outflow to the Bay? 22 MR. O'LAUGHLIN: Yes. That is part of the 1995 Water 23 Quality Control Plan, is the X2 standards for Delta outflow. 24 Did you look at that? 25 MR. HILDEBRAND: We didn't address the question of CAPITOL REPORTERS (916) 923-5447 8564 1 impact on the South Delta as it relates to the outflow. 2 MR. O'LAUGHLIN: Let me ask it a little bit 3 differently. I know you didn't look at it in relationship 4 to how it would affect South Delta. 5 Did you look at Delta outflow as part of your 6 Comprehensive Plan meeting the 1995 Water Quality Control 7 Plan? 8 MR. HILDEBRAND: Indirectly I would say we did, yes. 9 MR. O'LAUGHLIN: Where indirectly did you address Delta 10 outflow in your Comprehensive Plan? 11 MR. HILDEBRAND: The Delta outflow influences the 12 extent to which Bay water intrusion gets in and actually 13 gets into the South Delta and into the export system. 14 MR. O'LAUGHLIN: But what I am more specifically 15 looking at is, did you look at what the San Joaquin River 16 portion of the Delta outflow would be to meet the X2 17 standard as set forth in the 1995 Water Quality Control 18 Plan? That is a much more specific question. 19 MR. HILDEBRAND: I can't say we directly did that, no. 20 MR. O'LAUGHLIN: Can you tell me where indirectly you 21 did that? 22 MR. HILDEBRAND: We do not assume that the proposals we 23 are making would affect the amount of Delta outflow required 24 to maintain X2. 25 MR. O'LAUGHLIN: So, is it your understanding, then, it CAPITOL REPORTERS (916) 923-5447 8565 1 would be your statement to the Board, then, that the San 2 Joaquin River does not have any obligation for Delta 3 outflow? 4 MR. HILDEBRAND: In solving the problems in the San 5 Joaquin River system in the South Delta that we are 6 proposing we don't think they would alter the need to 7 provide Delta outflow to maintain X2. We did address the 8 fact that in the control plan the amount of flow required at 9 Vernalis is related to the X2 location. They are different 10 figures for Vernalis flow requirement in one case versus the 11 other. And our plan would not preclude continuing to make 12 that provision. 13 MR. O'LAUGHLIN: Are you familiar with the Delta 14 outflow component of the 1995 Water Quality Control Plan 15 contained in Table 2-3 of the Draft EIR/EIS? 16 MR. HILDEBRAND: I would have to look at the document. 17 MR. O'LAUGHLIN: Can you describe for me what the Delta 18 outflow is? 19 MR. HILDEBRAND: It is water that flows from the Delta 20 out into the Bay. 21 MR. O'LAUGHLIN: Minus exports; is that correct? 22 MR. HILDEBRAND: No. The outflow is what flows from 23 the Delta into the Bay. You already subtracted from the 24 inflow what the exports are. 25 MR. O'LAUGHLIN: That is your understanding of what the CAPITOL REPORTERS (916) 923-5447 8566 1 Delta outflow standard is contained in the 1995 Water 2 Quality Control Plan, is strictly the amount of water into 3 the Bay? 4 MR. HERRICK: Objection. That misstates -- the 5 original question was: What is your understanding of Delta 6 outflow, not what is your understanding of what Delta 7 outflow standard -- 8 MR. O'LAUGHLIN: No. I said referring to Table 2-3 in 9 the 1995 Water Quality Control Plan. I will go back and 10 rephrase it. 11 Can you explain to me what, in your opinion, the Delta 12 outflow standard is as set forth in the 1995 Water Quality 13 Control Plan? 14 MR. HILDEBRAND: Will you show me the control plan? 15 MR. O'LAUGHLIN: Sure. It's right here. 16 MR. HILDEBRAND: The control plan provides, as I said a 17 moment ago, that the amount of outflow that is required is 18 dependent on the year type, and by months. It's delineated 19 in this document. 20 MR. O'LAUGHLIN: Looking at that document, does the San 21 Joaquin River Basin have any contribution to Delta outflow? 22 MR. HILDEBRAND: Yes. In respect to the river flows, 23 as I have said, the control plan requires for a different 24 contribution from the San Joaquin depending on the year 25 type, again. CAPITOL REPORTERS (916) 923-5447 8567 1 MR. O'LAUGHLIN: So, after we get done with the 2 April/May pulse flow period. How does your plan include 3 Delta outflow and account for it? 4 MR. HILDEBRAND: Our plan would provide whatever flow 5 is required by the control plan, and control plan requires 6 these flows. 7 MR. O'LAUGHLIN: So this is what I am concerned about. 8 Delta outflow, how is recirculation contributing to Delta 9 outflow? 10 MR. HILDEBRAND: The recirculation of and by itself is 11 not. The recirculation preserves the water that otherwise 12 would be let out for pulse flow and makes it available to 13 meet these other flow requirements. 14 MR. O'LAUGHLIN: So if I understand you correctly, 15 then, now when this recirculation occurs on the San Joaquin 16 River, then water -- some amount of water is going to be 17 saved during the pulse flow period, correct? 18 MR. HILDEBRAND: That's correct. 19 MR. O'LAUGHLIN: It's going to be saved where? 20 MR. HILDEBRAND: It is saved in the river system as a 21 whole. Not taking the water out of the river system, 22 therefore, it is still available. 23 MR. O'LAUGHLIN: There is a lot of rivers that lead 24 into the San Joaquin River. So let's be more specific. 25 When your recirculation plan happens, where do you envision CAPITOL REPORTERS (916) 923-5447 8568 1 this water is going to be saved in the pulse flow period? 2 Name a tributary, name a reservoir. 3 MR. HILDEBRAND: Let's take, for example, the San 4 Joaquin River proposal. That stipulates a certain amount of 5 water to be let out from each tributary for provision of the 6 pulse flow. If you provide the pulse flow in some other 7 manner, that water is still available. 8 MR. O'LAUGHLIN: So under -- this is where I was 9 getting confused. 10 Can I have my book back? Thanks. 11 So, under the recirculation plan, then, let's say -- 12 now are you comparing that to the San Joaquin River 13 Agreement? Would you like those parties that were going to 14 make water very available under the San Joaquin River 15 Agreement, since we are going to save that water, are we 16 going to now be responsible for Delta outflow in June, July, 17 February and March? 18 MR. HILDEBRAND: If that water is not used for pulse 19 flow and if it is not used to be sold outside the river 20 system, it then will come down the river and it will tend to 21 come down in the summer. 22 MR. O'LAUGHLIN: But we are trying to get the Board 23 here to get an order, so that they have something concrete 24 upon which they can tell us what we are doing. I want to 25 get it clear from you as to who is going to be doing what CAPITOL REPORTERS (916) 923-5447 8569 1 once your recirculation plan gets implemented. 2 If I understand correctly, we have Delta outflow 3 requirement. So your recirculation plan saves water. Now, 4 are you going back to he who causes the harm causes the 5 solution? My understanding of your proposal was that the 6 CVP was the bad guys. 7 MR. HILDEBRAND: I said they were the bad guys so far 8 as selenium was concerned. So far as flow, they were partly 9 the bad guy. 10 MR. O'LAUGHLIN: You are looking at other parties now 11 to meet flow at Vernalis other than the CVP? 12 MR. HILDEBRAND: The flow at Vernalis will be more if 13 you don't use that water for pulse flow, because the -- 14 MR. O'LAUGHLIN: What if they consume that water, Mr. 15 Hildebrand? 16 MR. HILDEBRAND: They are free to consume all they can 17 consume for their purposes within their boundaries. But 18 they are not going to consume more water just because you do 19 or don't have comprehensive or -- recirculation. 20 Consequently, if you recirculate, they will consume the same 21 amount. They will not have let out water for pulse flow 22 and, consequently, there will be more water coming down at 23 the time. 24 MR. O'LAUGHLIN: The State Board has standards that 25 they have to meet. So what I want to know is under your CAPITOL REPORTERS (916) 923-5447 8570 1 plan -- let's say that water doesn't show up in June to meet 2 Delta outflow. It is just not there. These guys, they are 3 not releasing it, keeping it behind their reservoirs. 4 Are you going to tell the State Water Resources Control 5 Board that they should issue an order against the Merced, 6 the Tuolumne, Stanislaus Rivers to release that water to 7 meet Delta outflow? 8 MR. HILDEBRAND: All they have to do is to require -- 9 MR. O'LAUGHLIN: That is a yes or no answer -- that is 10 a yes or no question. 11 MR. HERRICK: I would object. We have gone through 12 this before. Mr. Hildebrand doesn't think yes or no is 13 appropriate; he is certainly able to answer as he feels 14 best. If the questioner doesn't like that answer, he can 15 try again in a different manner. 16 MR. O'LAUGHLIN: No. This is patently unfair to the 17 State Board, to the parties and to the process. I have been 18 in plenty of judicial proceedings and have cross-examined 19 plenty of witnesses. When I ask a yes or no question, I 20 have no problem getting a yes or no response with an 21 explanation afterwards. I have no problem with that. But I 22 don't want to hear a response that is not responsive and 23 doesn't answer the question. 24 And courts give great leniency to witnesses: "Yes, no. 25 If you want to explain your answer, go ahead." Or "I don't CAPITOL REPORTERS (916) 923-5447 8571 1 know" or "I can't respond to that question." But if this 2 continues, we are going to be here for a long, long time 3 with Mr. Hildebrand. These are not -- that was not a 4 difficult question. 5 C.O. STUBCHAER: Mr. Herrick. 6 MR. HERRICK: If I may. I mean, I am trying to be 7 polite here, but it is perfectly appropriate in judicial 8 proceedings for the witness to say, "I don't believe yes or 9 no is the right answer." I don't believe you can say 10 that. There is no requirement that the witness give the 11 answer that the questioner wants; that is simply not how it 12 works. 13 I understand that we are trying to make sure that we 14 can confuse the issue as much as we want. But Mr. 15 Hildebrand doesn't have to give the answer that he wants; 16 that is not the way it works. 17 C.O. STUBCHAER: It seems to me that depends on the 18 question, whether it can be answered yes or no. I was going 19 to say, "Yes or no with an explanation." 20 MR. O'LAUGHLIN: Absolutely. 21 C.O. STUBCHAER: It seems to me that the last question 22 could have a yes or no answer, and then you could 23 explain. And some of the questions may not fall in that 24 category. 25 Mr. Brown. CAPITOL REPORTERS (916) 923-5447 8572 1 C.O. BROWN: I concur with you, Mr. Chairman. These 2 are really good questions, Mr. Hildebrand. Your thoughts 3 and input to these, answers, are really important to us. 4 And when possible, if you can respond as requested, I think 5 that would be more helpful to me, anyway, than maybe some of 6 the other circuitous stuff. 7 MR. HILDEBRAND: I can answer that question yes or no, 8 providing I am allowed to explain the answer. 9 C.O. BROWN: Sure. 10 MR. O'LAUGHLIN: I have -- believe me, I have no 11 problem with yes or no responses and give the most fullest 12 explanation of that response would be extremely helpful. 13 But there is no reason to not answer the question. 14 C.O. STUBCHAER: The ruling is answer the question yes 15 or no with explanation. 16 MR. HILDEBRAND: Repeat the question. 17 MR. O'LAUGHLIN: Is that a test? 18 (Record read as requested.) 19 MR. O'LAUGHLIN: Under the 1995 Water Quality Control 20 Plan it has Delta outflow and then it has the river flows 21 from the San Joaquin River and San Joaquin River to meet 22 those flows in certain times, in certain years. Correct? 23 MR. HILDEBRAND: Correct. 24 MR. O'LAUGHLIN: Under your situation of recirculation, 25 what you are saying is water that is recirculated allows CAPITOL REPORTERS (916) 923-5447 8573 1 parties on the San Joaquin River who would have otherwise 2 had to meet pulse flow requirements to keep water in 3 storage, correct? 4 MR. HILDEBRAND: I didn't say it, enable them to keep 5 it in storage. I said enable them to retain that water for 6 other use. 7 MR. O'LAUGHLIN: Okay, retain water for other use. 8 Now, we come and we are looking at a period and it is 9 June. We are looking at the San Joaquin River and we have 10 to come up -- there is 7,300 cfs required in -- 11 MR. HILDEBRAND: Not in June. 12 MR. O'LAUGHLIN: Sorry about that. 13 There is 3,420 cfs required at Vernalis, and it's not 14 there. There is only 2,000 cfs at Vernalis. 15 MR. HILDEBRAND: Does that figure come off there? For 16 the month of June? 17 MR. O'LAUGHLIN: Comes right off that. For the month 18 of June. February to April 14th and May 16 through June. 19 This is a wet year. There is only 2,000 there and there 20 should be 3,400. 21 Under your plan for recirculation where are you going 22 to go on the river system to get Delta outflow? 23 MR. HILDEBRAND: First place I would go would be to the 24 junior party who had caused the reduction of flow in the 25 first place. CAPITOL REPORTERS (916) 923-5447 8574 1 MR. O'LAUGHLIN: This is what I was very interested in, 2 this. Who is the junior appropriator on the San Joaquin 3 River who has caused that reduction inflow? 4 MR. HILDEBRAND: There may be some more junior parties, 5 but for substantial amounts it is the Bureau. 6 MR. O'LAUGHLIN: The Bureau. That is a real big thing 7 on the San Joaquin River. Can you be more specific? 8 MR. HILDEBRAND: The diversion of 30 percent of the 9 flow in the river from Friant into the Tulare Basin. 10 MR. O'LAUGHLIN: Your view of the world, then, is for 11 Delta outflow, if there is a shortage on the San Joaquin 12 River, then the Board should say, "We need water," and they 13 should turn around and they should go to Friant and they 14 should say, "Start releasing enough water to get that extra 15 1,300 cfs down here at Vernalis"; is that correct? 16 MR. HILDEBRAND: To the extent that that is necessary. 17 However, if the Board also stipulates that the tributary 18 districts may not store more water than they need for their 19 own use within their own boundaries, then there will be more 20 water from that source. 21 MR. O'LAUGHLIN: Let's just stay on this. This is your 22 proposal. I want to get it clear what you are proposing to 23 the Board. We are down with the pulse flow. It is now June 24 1st. There is shortage. 25 So what you want the Board first to do is to go to the CAPITOL REPORTERS (916) 923-5447 8575 1 junior appropriator on the Friant and say, "Release 1,400 2 cfs to make up the difference at Delta outflow," correct? 3 MR. HILDEBRAND: Providing they have also required the 4 other appropriators not to appropriate more than they are 5 entitled to appropriate. 6 MR. O'LAUGHLIN: Well, let's just stick with Friant 7 for, first, a second. 8 In your analysis that you presented to the Board, have 9 you done any analysis as to the water cost to Friant to meet 10 Delta outflow on the San Joaquin River under your plan? 11 MR. HILDEBRAND: The water cost, you say? 12 MR. O'LAUGHLIN: How much water is it going to take to 13 go from Friant under my hypothetical? Let's say June, how 14 much water is going to have to be released from Friant to 15 get 1,400 cfs at Vernalis? 16 MR. HILDEBRAND: I didn't say released from Friant. 17 MR. O'LAUGHLIN: I thought you just said that the 18 junior appropriator -- 19 MR. HILDEBRAND: They are responsible for providing 20 water, but they don't necessarily have to release it from 21 Friant. 22 MR. O'LAUGHLIN: All right. So now we are not done. 23 The junior appropriator that caused the reduction at Friant 24 isn't responsible anymore. So now who is responsible? 25 MR. HILDEBRAND: I didn't say -- CAPITOL REPORTERS (916) 923-5447 8576 1 C.O. STUBCHAER: Only one. 2 MR. O'LAUGHLIN: Who is responsible? 3 C.O. STUBCHAER: Mr. Herrick. 4 MR. HERRICK: Perhaps we would also try to avoid the 5 argumentative nature of the questions. The issues are 6 easily brought out. 7 C.O. STUBCHAER: I think that is a point that Mr. 8 O'Laughlin could consider. 9 MR. O'LAUGHLIN: I will. 10 Okay. If the junior appropriator, Friant, isn't 11 responsible, then should I cross them off? Who are we going 12 to look at next to meet Delta outflow? 13 MR. HILDEBRAND: I've already said that I did not say 14 that they weren't responsible. I said that they could 15 provide it in some other way. They didn't necessarily have 16 to provide it by releasing it from Friant. 17 MR. O'LAUGHLIN: Would you be satisfied, then, if 18 Friant -- let's say we had a Delta outflow requirement on 19 Friant. The Board implemented an order that said, "Delta 20 outflow has to reached under this because we don't have 21 enough water. Friant, you are going to do it." Would you 22 think it would be -- Friant could then go to some other 23 party in the San Joaquin River Basin and say, "I would like 24 to make a deal with you. Can you release my water from your 25 tributary, and I'll pay you for it?" CAPITOL REPORTERS (916) 923-5447 8577 1 MR. HILDEBRAND: In the first place, I don't think the 2 obligation is on the Friant water users; it's on the 3 Bureau. The Bureau has other ways of supplying water into 4 the river, including the purchase of water from contractors, 5 wherever, and then releasing that water in the river as we 6 have discussed. It has the option of getting the State to 7 wheel water for them if they need excess water, and then 8 drop that into the river. Various ways in which the water 9 could be supplied. I don't think the Board needs to 10 stipulate just how they do it, just merely that they have 11 the responsibility to provide it. 12 MR. O'LAUGHLIN: So, now let's say in this world that 13 we're constructing for the Board, recirculation gets done 14 May 15th, and we still have a need for Delta outflow. So 15 you would tell the Board under your plan the first person 16 that should be responsible for meeting Delta outflow in the 17 San Joaquin River is the CVP? 18 MR. HILDEBRAND: That's right. 19 MR. O'LAUGHLIN: So, where in the documentation that 20 you provided the Board is the water cost or how much water 21 it would take for the CVP to make water available? 22 MR. HILDEBRAND: We have -- 23 MR. O'LAUGHLIN: Just Delta outflow. 24 MR. HILDEBRAND: Delta outflow? 25 MR. O'LAUGHLIN: Just Delta outflow, not looking at CAPITOL REPORTERS (916) 923-5447 8578 1 anything else. 2 MR. HILDEBRAND: We have only looked at the San Joaquin 3 share of Delta outflow. There is no reason for us to 4 analyze where the water comes from for the Sacramento system 5 for their share. 6 MR. O'LAUGHLIN: I went through all your materials 7 numerous times. Where in your testimony are the exhibits; 8 is there a number showing how much it would cost in the 9 amounts of water for the CVP to meet Delta outflow? 10 MR. HILDEBRAND: I don't know that we came up with that 11 specific number. We are quite cognizant of these figures. 12 You just pointed out -- we mentioned them in our testimony 13 as to the requirement for the amount of flow in the river. 14 The amount of restoration of flow that would be 15 required, for example, in the month of June by the CVP would 16 be a small figure compared to the amount they have taken 17 away. 18 MR. O'LAUGHLIN: I am trying to get my handle on 19 things. I am trying to understand this proposal. I am 20 stuck here. I'm looking at the CVP is going to make water 21 available at Vernalis for Delta outflow. If you don't have 22 it in your testimony or your exhibits, that is a perfectly 23 fine answer. I just need to know, has the South Delta Water 24 Agency quantified the amount of water to meet Delta 25 outflow? CAPITOL REPORTERS (916) 923-5447 8579 1 MR. HILDEBRAND: We have quantified it to the extent of 2 ascertaining that it is a relatively small number as 3 compared to the decrease in flow caused by CVP in the month 4 of June in your example. 5 MR. O'LAUGHLIN: Where is -- where did you come up with 6 this -- where is this quantification of this relatively 7 small number? 8 MR. HILDEBRAND: If you look at the numbers we have 9 submitted in the June 1980 report on the magnitude of the 10 reduction in flow and you look at the numbers that you have 11 just cited here and the flow required to meet the San 12 Joaquin River share of the outflow, you will find that there 13 is a -- it is not a major burden. 14 MR. O'LAUGHLIN: It is not a major burden? 15 MR. HILDEBRAND: Right. 16 MR. O'LAUGHLIN: Can I take one second? 17 C.O. STUBCHAER: Sure. 18 MR. O'LAUGHLIN: Let's talk about this relative impact 19 a little bit. Let's agree on some numbers, if we could to 20 start out. Let's look at critically dry years. Let's look 21 at critically dry years. I like critically dry years. 22 C.O. STUBCHAER: Please identify. 23 MR. O'LAUGHLIN: That is from the 1980 report, and I 24 believe that is South Delta Water Agency Exhibit Number 48, 25 and the page number is -- CAPITOL REPORTERS (916) 923-5447 8580 1 MR. HERRICK: It says 23 at the bottom. 2 MR. O'LAUGHLIN: Page 23. 3 Thank you. 4 Under the 1995 Water Quality Control Plan, the San 5 Joaquin River at Airport Way Bridge, i.e., at Vernalis, for 6 Delta outflow, we're looking in critically dry years of a 7 outflow of 1,710 to 1,140 cfs. 8 MR. HILDEBRAND: Don't see that on the -- 9 MR. O'LAUGHLIN: You don't see it there; it is in the 10 1995 Water Quality Control Plan. 11 C.O. BROWN: Give me the page, again. 12 MR. O'LAUGHLIN: For May 16th to June under the 1985 13 Water Quality Control Plan the number is 710 cfs to 1,140 14 cfs. 15 C.O. BROWN: That is what is required? 16 MR. O'LAUGHLIN: That is what is required for the San 17 Joaquin River portion of -- that is the flow rate that is 18 required. 19 C.O. BROWN: Into the Delta? 20 MR. O'LAUGHLIN: Yes. The river flow rate in a 21 critically dry year. 22 C.O. STUBCHAER: At Vernalis? 23 MR. O'LAUGHLIN: At Vernalis. 24 MR. O'LAUGHLIN: Mr. Hildebrand, looking at this 25 report, this was a report done by United States Bureau of CAPITOL REPORTERS (916) 923-5447 8581 1 Reclamation and South Delta Water Agency; is that correct? 2 MR. HILDEBRAND: That's correct. 3 MR. O'LAUGHLIN: Now, you went through a little bit of 4 this with Mr. Birmingham yesterday. I hope I don't get 5 redundant. Just to refresh your recollection, they did a 6 number of year classifications on the San Joaquin River; is 7 that correct? 8 MR. HILDEBRAND: Yes. 9 MR. O'LAUGHLIN: So if we were going to look at a 10 critically dry year, that would fall under the dry, which is 11 less than 3,500,000 acre-feet in a year, correct? 12 MR. HILDEBRAND: Yes. 13 C.O. BROWN: 710 to 1,140 was for a dry year? 14 MR. O'LAUGHLIN: No, critical. We are going critical. 15 Can you put it down to the bottom so we at least get 16 the page number real quick? 17 Thank you. 18 39, from South Delta Water Agency Exhibit 48. 19 Do you have Page 39, Mr. Hildebrand? You have that 20 report; is that correct? 21 MR. HILDEBRAND: Yes. 22 MR. O'LAUGHLIN: In this it says that during the 23 summary of impacts in dry years -- these are the dry years. 24 These aren't even critically dry years, just dry years, 25 Page 39. CAPITOL REPORTERS (916) 923-5447 8582 1 It says under Item B: 2 During the April/May period, the reduction in 3 flow attributable to the CVP range from 2,600 4 to 7,000 acre-feet. (Reading.) 5 2,600 to 7,000 acre-feet from the April to September 6 time period. Now, you have been in the water business a 7 long time. Let's just do -- April, May, June, July, August, 8 September? That is six months. So six months, 180 days. 9 Can you do a rough calculation of how much that would 10 be in cfs on a daily basis? 11 MR. HILDEBRAND: I don't think we need to do that 12 because the point you are making is that if the CVP restores 13 its depletion in that kind of a year, it will not meet these 14 flow requirements. But we have said that in that event you 15 then move up to the next party that is causing the 16 depletion. 17 MR. O'LAUGHLIN: I thought we were going to go with the 18 junior appropriator that has caused all the harm. I thought 19 it was Friant. 20 MR. HILDEBRAND: You start with the junior 21 appropriator, and to the extent he's caused the problem, he 22 mitigates it. If there is a further problem that isn't 23 covered by that degree of mitigation, you will have to move 24 up to the next party causing it. 25 MR. O'LAUGHLIN: Then, on a yearly basis if we were CAPITOL REPORTERS (916) 923-5447 8583 1 going to design an order for the Board, then, in looking at 2 this material it appears to me -- would it be a safe 3 statement to say that during critically dry periods or dry 4 year periods that Friant should be responsible for little or 5 no Delta outflow since it appears they have caused little or 6 no loss in reduction at Vernalis? 7 MR. HILDEBRAND: In that extreme situation the CVP or 8 the Friant water users are not responsible for more than a 9 small portion of it. 10 MR. O'LAUGHLIN: Which may be 2,600 to 7,000 11 acre-feet? 12 MR. HILDEBRAND: In that extreme situation. 13 MR. O'LAUGHLIN: Would you say, under your view of the 14 world, since they clearly are not making 2,600 to 7,000 15 acre-feet of water available during that time, that they 16 should release enough water from Friant to make sure that 17 2,600 to 7,000 acre-feet gets to Vernalis during that time 18 period? 19 MR. HILDEBRAND: I have not said that. 20 MR. O'LAUGHLIN: You are saying that they could get 21 that water from someplace else during that time period, 22 whether it is through CVP contractors releasing it in the 23 Newman Wasteway? 24 MR. HILDEBRAND: That is right. Other options. 25 MR. O'LAUGHLIN: So, no matter what, it just has to CAPITOL REPORTERS (916) 923-5447 8584 1 come from a CVP contractor? 2 MR. HILDEBRAND: No. I didn't say that. I said the 3 CVP should mitigate its own impact. Then if that doesn't 4 provide the flow that the Board wishes, then they have to go 5 after somebody else. 6 MR. O'LAUGHLIN: So now we are done with Friant during 7 critically dry years. Who do we go to next on the San 8 Joaquin River to make up for this loss of Delta outflow, in 9 your view of the world? 10 MR. HILDEBRAND: You would look then at the 11 appropriators of water in that river system in order of 12 their priority and see whether they can be allowed to 13 appropriate. 14 MR. O'LAUGHLIN: But see in order of priority, now you 15 are back to the priority system. If we went to the priority 16 system, we've already said the most junior guy appears not 17 to be causing any problem. 18 MR. HILDEBRAND: I didn't say that. He is causing -- 19 inadequate. If mitigating his contribution to the problem 20 is inadequate to solve it, therefore, you have to move on to 21 the other contributors to the problem. 22 MR. O'LAUGHLIN: In order of priority. What if the 23 next person is someone downstream at, let's say, at the 24 Tuolumne River. They are an appropriator. They are the 25 next most junior appropriator. CAPITOL REPORTERS (916) 923-5447 8585 1 Are you going to tell them, even though -- are they 2 just going to make just their contribution. If there is 3 this huge gap there, do they make up for the big gap or just 4 their contribution? 5 MR. HILDEBRAND: Just their contribution. 6 MR. O'LAUGHLIN: Where in the Board's process have you 7 found in any of the Draft EIR documents or anywhere else any 8 explanation of who is causing what harm? 9 MR. HILDEBRAND: I don't know just what you mean by 10 "exploration." The Board does have extensive information on 11 the magnitude of the diversion of each appropriator and the 12 priority of those appropriators. We already got some orders 13 of the Board that cause junior appropriators to have to stop 14 appropriating when the flow of the river is insufficient to 15 protect downstream rights and other requirements. 16 MR. O'LAUGHLIN: Well, let's get back to the CVP. In 17 the 1995 Water Quality Control Plan, under critically dry 18 years, it says 3,110 or 3,540 cfs should be the pulse flow. 19 Now, under your plan you said that since the Bureau is 20 responsible for all that is wrong in the world -- 21 MR. HERRICK: Objection. 22 MR. O'LAUGHLIN: Excuse me. I will strike that. That 23 is argumentative. 24 Under your view, the CVP is responsible for mitigating 25 its impacts and, therefore, it should do the recirculation, CAPITOL REPORTERS (916) 923-5447 8586 1 correct? 2 MR. HILDEBRAND: In most situations that is the case. 3 MR. O'LAUGHLIN: Under this situation, though, if we 4 are looking at this April to September time period, the 5 Board has a requirement here of 3,100 cfs to 3,500 cfs, and 6 yet we see on this chart that Friant, the construction of 7 Friant, doesn't seem to have impacted that pulse flow. So 8 are we not going to do recirculation in critically dry 9 years? 10 MR. HILDEBRAND: If you look at the overall picture of 11 the operation of the projects, the need for this quantity of 12 flow at Vernalis to contribute to X2 is associated with, as 13 we discussed earlier, the outflow is the inflow minus the 14 exports, and inside -- in Delta consumption. So if there is 15 not enough outflow available due to the exports, they are 16 affecting then the need for this Vernalis flow. And these 17 figures would presumably become altered if the exports were 18 limited. 19 MR. O'LAUGHLIN: I am sorry. I changed gears on you. 20 I didn't want -- we didn't get in sync. I am now talking 21 pulse flow, and you are talking Delta outflow. I want to 22 focus on the Water Quality Control Plan for the pulse flow 23 period. 24 The pulse flow says, now, in the San Joaquin River that 25 during April 15th to May 15th that in critically dry years CAPITOL REPORTERS (916) 923-5447 8587 1 there should be 3,110 or 3,540 cfs at Vernalis. 2 Now, how is it that when we look up there and see that 3 the impacts from Friant are about 2,600 to 7,000 acre-feet 4 over the time period from April to September, how is it that 5 you jive your recirculation plan in dry years that the CVP 6 is causing the problem with that? 7 MR. HILDEBRAND: The need for the recirculation is to 8 provide a certain amount of fish flow. And the question is 9 what is the most efficient, water efficient method of 10 providing that fish flow? Whether you make the CVP pay for 11 the recirculation is a somewhat separate question. It is a 12 method of providing the fish flow that is desired by the 13 Board at that time, and it is a way of doing it without 14 taking water away from somebody. 15 Now, if you want to allocate the cost of recirculation 16 some other way, that is a possibility. But it is the most 17 reasonable, water efficient way of providing flow. 18 MR. O'LAUGHLIN: So then, let me go back. I am trying 19 to understand how this proposal came about with your 20 underlying principles. Now we are not talking about who 21 caused the harm or priorities or anything. 22 If I can take that last statement to mean we should do 23 whatever is the most efficient way to make water available 24 with the least cost is what we should do? That is the 25 underlying principle now? CAPITOL REPORTERS (916) 923-5447 8588 1 MR. HILDEBRAND: When you started questioning me about 2 this, the principles here, I included the principle that we 3 must have a comprehensive plan for the most reasonable use 4 of water. These other things are consistent with that. 5 MR. O'LAUGHLIN: So well -- I don't understand it, 6 though. Because if somebody's caused harm, let's say 7 Oakdale Irrigation District is just dumping untreated sewage 8 and salt and selenium and everything in the river and it is 9 just degrading it to all get out. But you don't care about 10 that anymore. You care what is efficient now to resolve the 11 problem. 12 MR. HERRICK: Objection. That is clearly 13 argumentative. If he asks a question of what he believes, 14 that is fine. The modifiers put in the question are -- 15 C.O. BROWN: It is a good question. 16 MR. HILDEBRAND: He changed the subject to salinity, 17 water quality instead of flow. 18 MR. O'LAUGHLIN: It is very difficult, Mr. Hildebrand, 19 to stick with the subject with you. I am sorry; I am having 20 difficulty. I will try to keep up. 21 MR. HILDEBRAND: I am having difficulty, too, Tim. 22 MR. O'LAUGHLIN: I will try to keep up. Here is my 23 question. 24 When we started out, the Statement that I heard was 25 that he who causes the harm in an order of priority, we will CAPITOL REPORTERS (916) 923-5447 8589 1 go by priority, we start with the junior guy. If he is 2 causing a problem, then he should mitigate his harm, right? 3 And then we go to the next guy. If he was causing a 4 problem, he would mitigate his harm, right? 5 MR. HILDEBRAND: I qualified by, however, that we 6 should do it in a manner that is the most reasonable use of 7 water. Least impact on any party. 8 MR. O'LAUGHLIN: Let's take an example. 9 MR. BIRMINGHAM: Excuse me, could I ask that that be 10 marked. 11 MR. O'LAUGHLIN: What I am confused about is this: I 12 know Oakdale, so I am going to use Oakdale as an example. 13 Oakdale has a pre-1914 right on the Stanislaus River that's 14 been adjudicated. We also have appropriative rights and 15 they are fairly senior. 16 Now, what I am looking at is let's say Oakdale is 17 causing a salinity problem at Vernalis. Okay. We are the 18 cause of the salinity problem. But we are way down on this 19 list. There are other people ahead of us. Believe me. I 20 can get the list out and show it to you. Are we going to go 21 through all those other people first and then figure out 22 what Oakdale does? Or are we going to look at some other 23 plan that may be, well, gee, we can build a treatment plant 24 and let's treat that wastewater; that is the most reasonable 25 thing to do? What is the overlying principle? CAPITOL REPORTERS (916) 923-5447 8590 1 I know this is not a question; it is kind of a 2 statement. Hopefully, it will lead to a question. 3 What I am trying to understand here, Mr. Hildebrand, is 4 what is the overlying principle? If it is a principle of 5 reasonableness that we should all work collectively on what 6 is the most reasonable solution -- forget water right 7 priorities, forget everything else, let's get to a 8 reasonableness or is it water rights/degradation theory of 9 mitigating impacts? I am having a hard time. 10 MR. HILDEBRAND: I can see you are having a hard time. 11 Basically, in the overall what I said is that I think you 12 have to have a comprehensive solution that makes reasonable 13 use of water, minimizes the impact on any party and that, in 14 accomplishing that, you do take account of the priority 15 among the parties and those who need to mitigate their own 16 impacts. 17 I don't think it is a pure white or black thing. Often 18 it is not reasonable to just judge everything in a white or 19 black context. And your example of OID causing a salinity 20 problem, it is enormously hypothetical. They don't. 21 MR. O'LAUGHLIN: Right. 22 MR. HILDEBRAND: If we would stick to flow, rather than 23 salinity, then maybe we can discuss it in a more 24 understandable context. 25 MR. O'LAUGHLIN: Let's do that. So I know -- we will CAPITOL REPORTERS (916) 923-5447 8591 1 take a break here in a second. And I will try to regroup. 2 What I am trying to get at is that if we look at this, 3 why are we doing recirculation? Is it because it is 4 reasonable or because the CVP has caused impacts to flow at 5 Vernalis? 6 MR. HILDEBRAND: We do it because it is a reasonable 7 and efficient use of water and, to the extent that we have 8 to do it because of the impact of the CVP, then they are 9 reasonable for the cost of doing it. 10 MR. BIRMINGHAM: Objection. Move to strike. It is 11 nonresponsive. 12 MR. O'LAUGHLIN: I don't get that. 13 C.O. STUBCHAER: We are not going to strike it. You 14 can pursue the answer. Ask another question. 15 C.O. BROWN: Mr. Chairman. 16 C.O. STUBCHAER: Mr. Brown. 17 C.O. BROWN: I understood the question, and I 18 understood the response. I am interested in what the 19 confusion is. 20 MR. O'LAUGHLIN: Let me try to explore that. So, 21 should we look at resolving the problems in meeting the 1995 22 Water Quality Control Plan, should we first look at what is 23 reasonable? Would you view something reasonable first and 24 then we are done with reasonable, then go to other things, 25 such as priorities and mitigation of impacts? What is the CAPITOL REPORTERS (916) 923-5447 8592 1 overlying principle? 2 MR. HERRICK: I would just object to the form of the 3 question. This line of questioning keeps putting two 4 choices before the witness. Whereas, there may not be a 5 limit of two choices for the answer. So it is perfectly 6 appropriate to ask somebody if it is just reasonable, if it 7 is just something or is it that priority. But to say is it 8 or all these other things gives him an unfair possibility 9 of answers. 10 C.O. STUBCHAER: Well, go ahead. 11 MR. O'LAUGHLIN: Go ahead, Mr. Brown. 12 C.O. BROWN: Also, I visualize the two questions being 13 intermixed, as what is the best fix. And, then, that is, 14 kind of, one question, and then responsibility is another. 15 If they get tangle-footed up with one another then it 16 provides for a poor answer. 17 MR. O'LAUGHLIN: I think that is a much better way, and 18 if I may steal that question, I will pose that question. 19 So when you came up with your Comprehensive Plan, it 20 was, A, to get the best fix? 21 MR. HILDEBRAND: That's right. 22 MR. O'LAUGHLIN: And then now, the second thing that I 23 would ask, after you got the best fix, assigning who is 24 responsible for the best fix is based on what? 25 MR. HILDEBRAND: It's based, then, on the question of a CAPITOL REPORTERS (916) 923-5447 8593 1 water rights priority and mitigation of impacts by those 2 parties that cause them. 3 MR. O'LAUGHLIN: I am ready for a morning break if -- 4 C.O. STUBCHAER: It is a little early. 5 MR. O'LAUGHLIN: I can keep going. Don't worry. Not a 6 problem. 7 In the State Water Resources Control Board process to 8 date have you seen in any documentation by the Board an 9 analysis of what parties have caused what harms at 10 Vernalis? 11 MR. HILDEBRAND: Not directly. 12 MR. O'LAUGHLIN: So as we sit here today, to give you a 13 hypothetical, is there any analysis that you know of within 14 the State Board process of Oakdale Irrigation District's 15 lack or impact, excuse me, on flow at Vernalis in this 16 document? 17 MR. HILDEBRAND: I don't think directly, no. The Board 18 does know what the diversions are by Oakdale. And I think 19 in the course of testimony at various times there is at 20 least some degree available how much water is consumed and, 21 therefore, reduced and what reduction occurs and the 22 downstream availability of water. 23 MR. HERRICK: Could I just for the record, 24 clarification. When you say "this document," do you mean 25 the Draft EIR? CAPITOL REPORTERS (916) 923-5447 8594 1 MR. O'LAUGHLIN: Draft EIR. 2 MR. HERRICK: Thank you. 3 MR. O'LAUGHLIN: So, if I was to understand who is 4 going to be responsible for the fix in the San Joaquin 5 River, then we would have to go back and do three things, 6 then. We would have to understand what each party's impact 7 on flow has been at Vernalis. Would be one component, 8 correct? 9 MR. HILDEBRAND: Yes. 10 MR. O'LAUGHLIN: The other component would be to 11 understand each party's impact on water quality at Vernalis, 12 correct? 13 MR. HILDEBRAND: Correct. 14 MR. O'LAUGHLIN: Then, since there is a third 15 component of Delta outflow, we would have to understand each 16 party's impact to Delta outflow; is that correct? 17 MR. HILDEBRAND: There is a -- I can't give you a yes 18 or no answer to that. Because the contribution to Delta 19 outflow is influenced not only by the affect of these 20 parties on the flow in the San Joaquin River, but also the 21 affect on Delta outflow of the exports. 22 MR. O'LAUGHLIN: I would agree with that. But we could 23 look at -- and I misphrase when I speak about this. We 24 could then look at what the flows on the San Joaquin River 25 are at other times other than the pulse flow to understand CAPITOL REPORTERS (916) 923-5447 8595 1 what that portion of that basin's contribution would be to 2 Delta outflow; is that correct? 3 MR. HILDEBRAND: Well, you don't know that it is going 4 to contribute Delta outflow until you know it is going to be 5 picked up and exported. 6 MR. O'LAUGHLIN: Now, in your proposal, which I have 7 read several times in your testimony one of the underlining 8 themes is that no one should have a bear minimum impact. Is 9 that a fair statement? 10 MR. HILDEBRAND: I think we should strive to solve the 11 problems in a no-net loss manner for all parties. That 12 isn't necessarily feasible, but that should be the first 13 goal. 14 MR. O'LAUGHLIN: Now, I want to get back to Delta 15 outflow again, and I will wrap up this segment and we'll 16 probably be at our break. 17 In regards to Delta outflow, in your testimony or in 18 any of the documents that you've submitted from 1 to 30, 19 from South Delta Water Agency exhibits, where is there an 20 analysis of how much water is needed in the San Joaquin 21 River, not during the pulse flow time, to meet the flow 22 obligations on the San Joaquin River? 23 MR. HILDEBRAND: I don't think we have quantified 24 that. We have indicated the measures that would contribute 25 to that. CAPITOL REPORTERS (916) 923-5447 8596 1 MR. O'LAUGHLIN: So there is no quantification of how 2 much it is, but you have looked at measures. So let's talk 3 about measures. 4 Since we don't know what the quantification is, what 5 are the measurements that we should tell the State Board 6 they should take in order to meet the flow requirements on 7 the San Joaquin River at times other than the April/May 8 pulse flow period? 9 MR. HILDEBRAND: We have indicated that, to the extent 10 that the flow is reduced below the requirements for the 11 riparian rights and end depletions in the South Delta, that 12 the parties are responsible for bypassing that flow. We 13 have also indicated that the upstream districts should not 14 be permitted to store water for purposes other than their 15 own use within their own boundaries, so that that water will 16 come down during those periods of time. 17 We have indicated that by recirculating water during 18 the pulse flow and not taking that water out of the river 19 system, that water then remains in the system and is 20 available other times. That is a rather substantial 21 figure. 22 MR. O'LAUGHLIN: What are we going to do here first, 23 though? I am sorry. I have two. I have storage and not 24 using it elsewhere. I have available water made up by the 25 pulse flow. What is the third one, Mr. Hildebrand? CAPITOL REPORTERS (916) 923-5447 8597 1 MR. HILDEBRAND: I've forgotten the order I gave them. 2 I am not sure I can repeat it. 3 C.O. STUBCHAER: Mr. O'Laughlin, Mr. Brown has a 4 question. 5 C.O. BROWN: Excuse me, Mr. O'Laughlin. I have a 6 question on the storage and Mr. Hildebrand's response. I 7 think they are important to note. 8 Are you talking about carryover storage that Oakdale 9 and South San Joaquin has in New Melones? I think a hundred 10 thousand acre-feet. 11 MR. HILDEBRAND: I was referring to any capture of 12 water by the districts used for purposes other than their 13 own use within their own boundaries. That is their 14 underlying water right. 15 If they capture water over and above that and sell it 16 for fish flow or export it out of the watershed, that is 17 water that ought to come down to the river. If the Board 18 doesn't permit them to do that, it will come down the river. 19 They have some flexibility as to when they let it come down, 20 but it will come down. 21 C.O. BROWN: I understand your position on that and 22 appreciate it. 23 The carryover storage that the Bureau and districts 24 negotiated, if South San Joaquin -- did you take a position 25 on that during the time of the negotiation? CAPITOL REPORTERS (916) 923-5447 8598 1 MR. HILDEBRAND: No. I didn't think that was 2 unreasonable. That is a matter -- if they want to use less 3 water -- well, insofar as it relates to their getting their 4 contractual amount rather than their water right amount, I 5 would take a position. 6 In principle, if they have a water right to certain 7 amount of water and they want to take less and carry it over 8 to another year, I see no problem in that. 9 C.O. BROWN: Thanks, Mr. O'Laughlin. 10 C.O. STUBCHAER: Ms. Forster. 11 MEMBER FORSTER: I was a little confused about what you 12 meant about storage, Alex, globally. I think about storage 13 that we do in some of these reservoirs for Southern 14 California. It seems when you are talking about storage you 15 are thinking of small reservoirs in a community; you are not 16 thinking about Oroville or Shasta. Are you? 17 MR. HILDEBRAND: No. But I am thinking about New 18 Melones and Don Pedro and Exchequer, particularly the later 19 two. Those are operated by the districts. They are owned 20 by the districts, but their storage rights are for the 21 purpose of storing water for their own use, not for the 22 purpose of storing water that would otherwise come down 23 river and be used by other parties. 24 C.O. STUBCHAER: All right there, Mr. O'Laughlin, 25 proceed. CAPITOL REPORTERS (916) 923-5447 8599 1 MR. O'LAUGHLIN: I found out what the other measure 2 was. Your first statement was -- Mr. Godwin keeps better 3 notes than I -- was that you make flows available to meet 4 riparian needs. Okay. 5 So here we are. We are after the pulse flow period. 6 We still have a requirement on the San Joaquin River to meet 7 flow. So, your statement -- can you explain to me how 8 meeting riparian needs -- is riparian needs and meeting flow 9 requirements at Vernalis the same? 10 MR. HILDEBRAND: Riparian needs are one of the flow 11 requirements at Vernalis, that the upstream diverters must 12 bypass the flow needed to meet those riparian rights. They 13 don't all do it. 14 MR. O'LAUGHLIN: That is the first thing. So, the 15 first thing that we should do is ensure that riparian water 16 natural flow is being bypassed in order to meet riparian 17 needs, correct? 18 MR. HILDEBRAND: That is one. 19 MR. O'LAUGHLIN: Have you ever brought an action 20 against any of the upstream tributaries who have reservoirs 21 for not releasing water sufficient to meet the riparian 22 needs at South Delta Water Agency? 23 MR. HILDEBRAND: Well, I think it is a component of the 24 action we took against the Bureau way back in 1982, I think 25 it was, which has been tolled, but it is still on the CAPITOL REPORTERS (916) 923-5447 8600 1 books. 2 MR. O'LAUGHLIN: Anything against either on the 3 Tuolumne or the Merced? 4 MR. HILDEBRAND: We did file suit, as we have discussed 5 before, for purchases of water and shifts of water on those 6 tributaries. But the damage, potential damage, to us in the 7 particular situation was rendered moot by the fact that we 8 ended up with a very wet year. 9 MR. O'LAUGHLIN: Have you ever come back in front of 10 the State Water Resources Control Board and filed a 11 complaint stating that someone on the Tuolumne or on the 12 Merced River was appropriating water in violation of their 13 permits and that you were suffering harm? 14 MR. HILDEBRAND: I think we did, but I am not sure 15 about that. I have to ask Mr. Herrick. 16 MR. O'LAUGHLIN: Now, storage. Are you saying that --I 17 just need to understand this. Let's say I am on the 18 Tuolumne River. I have New Don Pedro Reservoir sitting 19 there. And the State Water Resources Control Board comes to 20 you and says, "You have to release water for public trust 21 needs." Are you saying we can't release -- we shouldn't be 22 allowed to release stored water to meet public trust needs? 23 MR. HILDEBRAND: No. 24 MR. O'LAUGHLIN: You said don't store water that you 25 don't use within your district or you make available for CAPITOL REPORTERS (916) 923-5447 8601 1 fisheries. 2 MR. HILDEBRAND: Of course, I was not presuming that 3 you can't provide the FERC flows, for example. 4 MR. O'LAUGHLIN: They can provide FERC flows. I wonder 5 if the Board came in and said, "You have to meet flow 6 requirements in June." In your view of the world, then, 7 they shouldn't take that water out of storage to make that 8 available; they should only do what? If there is no 9 available direct diversion or bypass water available, should 10 the State Board be allowed to take it out of storage? 11 MR. HILDEBRAND: First thing you do is to look and see 12 the way to provide that flow without taking water away from 13 anybody, including the people on the Tuolumne. If you can't 14 do that, then, yes, they would have to turn to that. 15 MR. O'LAUGHLIN: You are not opposed to taking water 16 out of storage for fishery flows? 17 MR. HILDEBRAND: I am not prepared to address the 18 question of whether a fish flow has a priority over a 19 riparian right some other time, for example. I don't think 20 the law is clear on that. I would have to defer judgment to 21 the Board on that kind of a choice. 22 MR. O'LAUGHLIN: Maybe we can stop with this one 23 question. I have been wondering your input on this. Why, 24 if anything, is South Delta Water Agency -- not its agency. 25 I realize the agency has no water rights. But what are the CAPITOL REPORTERS (916) 923-5447 8602 1 members' obligations as riparian right holders to the public 2 trust? 3 MR. HILDEBRAND: In our discussions about the amount of 4 water needed in the South Delta, we have said that it must 5 take care of public trust and the riparian rights. 6 MR. O'LAUGHLIN: I know that. I understand that. Do 7 your landowners who divert water out of the Delta for or on 8 the San Joaquin River have any obligation to make water 9 available for public trust needs? What is your 10 contribution? 11 MR. HERRICK: I would just -- I guess it is an 12 objection that it calls for legal conclusion. Obviously, 13 Mr. Hildebrand can answer to the best of his knowledge, but 14 that is a legal issue. 15 C.O. STUBCHAER: It may be a legal issue, but I think 16 he can give his view. 17 MR. HERRICK: Certainly. 18 C.O. STUBCHAER: Please answer the question. 19 MR. HILDEBRAND: The water right holders in the South 20 Delta have no source of water of their own. It is not as if 21 they were diverting water from tributaries upstream. Unless 22 and until the public trust and riparian rights in the South 23 Delta are maintained by sources upstream, I don't see that 24 they have an obligation. 25 MR. O'LAUGHLIN: Let me ask you this, though. Let's CAPITOL REPORTERS (916) 923-5447 8603 1 say all your water requirements are being met. You have 2 plenty of water quantity, plenty of water quality at South 3 Delta, and South Delta is made whole on those fronts. But 4 the State Board decides in order to meet the narrative 5 standard for the doubling of anadromous fish, it's going to 6 need some more water. 7 Do you believe that riparians have the obligation or 8 responsibility to help meet that narrative standard by 9 keeping water in the stream or bypassing flow? 10 MR. HILDEBRAND: In terms of water right priority, 11 they'd be the last party you go to. 12 MR. O'LAUGHLIN: In your view of the world, let's say 13 it was reasonable at that point in time, that we are down in 14 the Delta, you're whole, all the water is there, is clear, 15 you are ready to divert, and the State Board says, "You know 16 what, it is April 30th. We would like you to bypass, if you 17 could, South Delta, 50 cfs of flow that you would otherwise 18 be entitled to." 19 Do you believe under the public trust that South Delta 20 Water Agency has an obligation to bypass that flow? 21 MR. HILDEBRAND: I can't understand how such a 22 situation could arise because the riparians -- in the first 23 place, it is a shared water right. In the second place, 24 it's superior to all the upstream water rights. Unless you 25 are going to have such a dry situation that you are going to CAPITOL REPORTERS (916) 923-5447 8604 1 say that the fish must get all the water and the rest of the 2 nation shut down, states shut down, I don't know how you 3 could arrive at such a situation. 4 MR. O'LAUGHLIN: If you may indulge me for one second, 5 I do know it's getting late. 6 MR. NOMELLINI: I will make an objection, just so the 7 same leeway on cross-examination is extended to me later. I 8 think this is beyond the scope of the direct. I think it is 9 interesting and ought to go in the record. These are the 10 same questions that I would like to pursue with all these 11 other witnesses, because they are important ones. 12 What we think about the -- we are going to argue them 13 legally. We know all these other guys are experts to some 14 extent on legal issues. But as to where the public trust 15 fits, who caused the damage, who is responsible for the flow 16 requirement at Vernalis because of the damage caused, that 17 is being addressed. I think these are all important to the 18 decision making. They are all tough questions. I don't 19 want to stop O'Laughlin, but I want to interpose my 20 objection so that the Board rules in favor of O'Laughlin as 21 a precedent to ruling in favor of me later on the same type 22 of cross-examination. 23 C.O. STUBCHAER: Mr. Nomellini, cross-examination has 24 never been restricted to the scope of direct. It is 25 redirect that is restricted. Cross-examination is quite CAPITOL REPORTERS (916) 923-5447 8605 1 broad. I think these questions are very relevant to the 2 issue at hand for this phase of the hearing. 3 MR. NOMELLINI: I agree. It wasn't your ruling that I 4 am responding to, but there are rulings in this proceeding 5 previously on my cross-examination that I think were 6 restrictive on the magnitude of the scope of the cross on 7 the direct case, and I think it should be broad. 8 C.O. STUBCHAER: Mr. Brandt. 9 MR. BRANDT: There is a distinction here to some extent 10 on these particular questions. Mr. Hildebrand represented 11 himself yesterday as an expert on the law, even though he is 12 not a lawyer. He has been working with it for so long. He 13 is one person that has testified that he considers himself 14 an expert. 15 C.O. STUBCHAER: My recollection is that he said he 16 knew a lot about it, but he didn't represent himself as an 17 expert on the law. 18 MR. HILDEBRAND: That's correct. 19 C.O. STUBCHAER: Mr. Campbell. 20 MR. CAMPBELL: I would like a clarification. Are we 21 talking about public trust in the Delta? 22 C.O. STUBCHAER: The question had to do with bypassing 23 flow from the people diverting into the South Delta islands, 24 as I understood it. 25 MR. CAMPBELL: I am correct in concluding that we are CAPITOL REPORTERS (916) 923-5447 8606 1 talking about public trust in the Delta? 2 C.O. STUBCHAER: And Mr. Hildebrand said he didn't see 3 how such a condition could arise, but he didn't answer the 4 question yet. 5 MR. NOMELLINI: There was a specific question. 6 MR. O'LAUGHLIN: There was. Don't worry, I'll 7 rephrase it. 8 MR. NOMELLINI: There was a specific question as to 9 bypass flows from the dam for public trust purposes in the 10 streams. 11 C.O. STUBCHAER: This was 50 cfs passed the South Delta 12 diversion point in the stream. 13 MR. NOMELLINI: The last one. 14 C.O. STUBCHAER: Yes. 15 MR. NOMELLINI: Earlier we did deal with questions -- 16 MR. O'LAUGHLIN: Don't worry about it. I'll get to the 17 dams in just a minute. Wait a second. 18 Are we clear? I didn't get a response. 19 C.O. STUBCHAER: I would like to hear the answer to the 20 question, even though Mr. Hildebrand believes -- doesn't see 21 how it could apply. 22 MR. O'LAUGHLIN: Right. 23 MR. HILDEBRAND: Theoretically, I suppose the answer is 24 yes. 25 MR. O'LAUGHLIN: Well, let's get a little more concrete. CAPITOL REPORTERS (916) 923-5447 8607 1 C.O. STUBCHAER: I thought you said you wanted to take 2 a break now? 3 MR. O'LAUGHLIN: One more. You told me I had to keep 4 going. I am ready whenever you are. 5 C.O. STUBCHAER: We are going to take a 12-minute 6 break. Before we do, I want to announce that, since Mr. 7 Hildebrand is available till 1:00 p.m., I will defer the 8 lunch break until 1:00 p.m., if necessary, to try to 9 conclude the examination of Mr. Hildebrand so he doesn't 10 have to come back, and Mr. Pettit will handle my conference 11 call for me. 12 MR. HILDEBRAND: Can you make that 12:50 instead of one? 13 C.O. STUBCHAER: Yes. Right. So, we will take a 14 ten-minute break instead of a 12-minute break. 15 (Break taken.) 16 C.O. STUBCHAER: Will the meeting please come back to 17 order. 18 Mr. O'Laughlin. 19 MR. O'LAUGHLIN: Thank you, Chairman Stubchaer. 20 Theoretically, you responded to that question. I 21 would like to go to something a little more concrete. 22 You were in the Delta in 1976 and '77 during that 23 drought, correct? 24 MR. HILDEBRAND: Correct. 25 MR. O'LAUGHLIN: Let's take a situation now that we are CAPITOL REPORTERS (916) 923-5447 8608 1 in 1976 or '77 and the Merced, the Tuolumne and the 2 Stanislaus Rivers are bypassing all the natural inflow 3 coming into them. All the upstream reservoirs are bypassing 4 the natural flow, and it is coming down to the South Delta. 5 We still can't meet these flows at Vernalis or we can't -- 6 let me rephrase that. 7 All the water is coming down, and the Board says that 8 is just not enough water for the narrative standard. We 9 need you, South Delta Water Agency, to bypass 50 cfs for 10 public trust. Your response is that that would be something 11 that South Delta Water Agency would do? 12 MR. HILDEBRAND: That isn't what I would say. I said 13 theoretically that could happen. Remind you, however, that 14 there are already in the law protections of the South Delta, 15 and the Delta, as a whole, in respect to public trust and 16 the use of the diverters within the Delta, vis-a-vis the 17 projects. It could be changed, but that is the way it is 18 now. 19 That is true that in that one specific occasion, and I 20 doubt that there were many others, that there just wouldn't 21 be enough water available to provide the flows in the 22 control plan. The control plan is subject to the vagaries 23 of nature, as to whether or not it can be accomplished in 24 extreme situations. 25 MR. O'LAUGHLIN: Let me get back to this question. I CAPITOL REPORTERS (916) 923-5447 8609 1 think it is interesting. Let's say South Delta has plenty 2 of water quality and plenty of flow and you're whole, but 3 there is not enough water for the fish. Are you saying you 4 don't have a responsibility for the fisheries or public 5 trust resources? 6 MR. HILDEBRAND: No. The existing law requires that 7 both be met. 8 MR. O'LAUGHLIN: South Delta members, the people who 9 have the water rights within South Delta, should do 10 something to contribute toward meeting those public trust 11 needs or resources? 12 MR. HILDEBRAND: I suppose after you shut the projects 13 down that could be the case. 14 MR. O'LAUGHLIN: Is it your view of the world, then, 15 that by South Delta Water Agency's landowners who divert 16 water could concentrate salts back into the river, have no 17 impacts at all on public trust resources? 18 MR. HILDEBRAND: I didn't say we had no impact. I said 19 that the existing law requires that both those diverters and 20 public trust must be made whole and that, as I understand 21 it, until you shut the projects down, that would have to be 22 the case. After you shut the projects down, if you still 23 have a conflict, then I don't know how that would be 24 adjudicated. 25 MR. O'LAUGHLIN: In this proceeding, what I am having CAPITOL REPORTERS (916) 923-5447 8610 1 difficulty understanding, first of all, South Delta Water 2 Agency doesn't have any water right; is that correct? 3 MR. HILDEBRAND: No, we hold no water right. We are 4 merely representing all of the people within our boundaries 5 who do have water rights. 6 MR. O'LAUGHLIN: What I am having difficulty 7 understanding is, basically, are any of those water right 8 holders on the list for the State Water Resources Control 9 Board proceedings? 10 MR. HILDEBRAND: Through us. 11 MR. O'LAUGHLIN: Through you? 12 MR. HILDEBRAND: Yes. 13 MR. O'LAUGHLIN: Where are they? What are their 14 names? 15 MR. HILDEBRAND: That is a long, long list. 16 MR. O'LAUGHLIN: So, what you are saying to me is that 17 even in this long, long list, they're at the very bottom and 18 should not make any water available; they have all their 19 water needs met first? 20 MR. HERRICK: I would object. That misstates the 21 testimony. I am not sure that it has been established that 22 where the entities, the people in the South Delta, may be 23 located on this list. 24 MR. O'LAUGHLIN: Let's take a riparian -- 25 C.O. BROWN: There is an objection. Did you object? CAPITOL REPORTERS (916) 923-5447 8611 1 MR. HERRICK: Yes. 2 C.O. BROWN: Mr. O'Laughlin. 3 MR. O'LAUGHLIN: I will rephrase the question. I will 4 withdraw that and rephrase the question. 5 Let's take a riparian in South Delta who has no 6 appropriative, just a riparian. So your view of the world 7 is, as you sit here, is that they should have no 8 responsibility even though they divert water from the Delta 9 and even though they may put some drainage water back into 10 the Delta? 11 MR. HILDEBRAND: The responsibility is on other parties 12 to see that the -- it is not necessary to impact that 13 riparian in order to protect the public trust. 14 MR. O'LAUGHLIN: What, in your view, is South Delta 15 Water Agency's responsibility for flow? 16 MR. HILDEBRAND: The agency doesn't have a 17 responsibility. We don't buy or sell or manage water. We 18 merely represent the many entities within the South Delta 19 who have the water rights that are predominantly, but not 20 exclusively, riparian. 21 MR. O'LAUGHLIN: I am sorry, I realize that. I will 22 rephrase the question. 23 What are your landowners' responsibilities for flow, if 24 any? 25 MR. HILDEBRAND: I don't know that we have any CAPITOL REPORTERS (916) 923-5447 8612 1 responsibility for flow. 2 MR. O'LAUGHLIN: No responsibility for flow. Does 3 South Delta have any responsibility for water quality within 4 the interior Delta? 5 MR. HILDEBRAND: The statutes require that the water 6 quality for our needs be met. 7 MR. O'LAUGHLIN: You have no responsibility for that 8 either? Excuse me, the landowners within South Delta Water 9 Agency have no responsibility for water quality, correct? 10 MR. HILDEBRAND: I believe that is right. 11 MR. O'LAUGHLIN: Does South Delta Water Agency have any 12 responsibility to make flow available to meet Delta outflow? 13 MR. HILDEBRAND: I don't think so. 14 C.O. BROWN: You said "agency." 15 MR. O'LAUGHLIN: I'm sorry. 16 Do the landowners within South Delta Water Agency have 17 any responsibility to meet Delta outflow? 18 MR. HILDEBRAND: Not under any foreseeable situation 19 that I envision. 20 MR. O'LAUGHLIN: In your view of the world -- 21 MR. HERRICK: Could I interrupt, make an objection? It 22 is typical to ask expert witnesses what their opinion might 23 be. I am not sure what the intent of this, "in your view of 24 the world" phrase is. 25 C.O. STUBCHAER: I agree. CAPITOL REPORTERS (916) 923-5447 8613 1 MR. O'LAUGHLIN: That is very good. 2 Thank you, Mr. Herrick. 3 Is it your opinion, Mr. Hildebrand, if the State Water 4 Resources Control Board were to follow the statutes that are 5 applicable to the Delta, that there would be no reason for 6 you to be testifying here today; is that correct? 7 MR. HILDEBRAND: No. I wouldn't say that. Because the 8 statutes that apply to the Delta don't control the inflow at 9 Vernalis or the salinity at Vernalis, specifically. The 10 control plan has established what the Board believes are our 11 rights on the salinity point of view. But those are 12 affected by actions elsewhere. 13 MR. O'LAUGHLIN: Let me ask you another question, Mr. 14 Hildebrand, about your -- if the State Water Resources 15 Control Board didn't pick your recirculation plan, but 16 picked some other means of meeting both the flow requirement 17 at Vernalis and the water quality requirement at Vernalis, 18 why would South Delta Water Agency care about that? 19 MR. HILDEBRAND: We are still involved with the quality 20 downstream. They need to restore recirculation in the 21 stagnant reaches, drawdown problems from the export pumps, 22 things of that sort. 23 MR. O'LAUGHLIN: I understand that. What I am getting 24 at is why is it that you have put together a recirculation 25 plan for the Board when, for all practical purposes, South CAPITOL REPORTERS (916) 923-5447 8614 1 Delta Water Agency really doesn't care where the water comes 2 from as long as the flow is there and the quality is there? 3 MR. HILDEBRAND: It's been clear to us that if you 4 don't do something such as we propose, the flow won't be 5 there and the quality won't be there. 6 MR. O'LAUGHLIN: Is South Delta Water Agency going to 7 contribute any money to help pay for the recirculation 8 plan? 9 MR. HILDEBRAND: I don't see any reason why we should. 10 It is a matter of protecting our interests. 11 MR. O'LAUGHLIN: So, you're going to propose it, 12 propose the recirculation plan, but somebody else will pay 13 for it? 14 MR. HILDEBRAND: It costs a lot less to do that than to 15 take care of the flow in some other way. 16 MR. O'LAUGHLIN: I think I have gone about as far as I 17 can with overriding principles. Let's get specific in 18 regards to the testimony you presented as South Delta Water 19 Agency Exhibit 51. 20 On the first page, the third paragraph, you say: 21 This proposal is generally Flow Alternative 22 Number 2. The USBR and DWR being responsible 23 for the 1995 plan obligations. (Reading.) 24 Now, in your proposal, so the Board is clear about this 25 when they write the order, do you envision the Department of CAPITOL REPORTERS (916) 923-5447 8615 1 Water Resources sharing in the recirculation? 2 MR. HILDEBRAND: The Department of Water Resources has 3 not caused the problem for us. However, they seem to be 4 collaborating with the Bureau in the management of water 5 with the pumping for each other party, and that sort of 6 thing. And in the San Joaquin River Agreement proposal, 7 they agreed to be part of the backstop for the inadequacies 8 that might occur under that plan. So they do seem to have 9 undertaken some responsibility there. 10 MR. O'LAUGHLIN: What I want to know, under your plan 11 -- we are not talking the San Joaquin River Agreement -- it 12 says right here that the U.S. and DWR being responsible. 13 What I want to know is, is the DWR under your proposal 14 responsible for recirculation during the April/May pulse 15 flow period? 16 MR. HILDEBRAND: We would anticipate they would 17 participate in the pumping at some times, perhaps, but it 18 isn't clearly necessary that they do that. 19 MR. O'LAUGHLIN: This is your plan. Don't hold back. 20 I want you to tell the Board very specifically who is going 21 to be doing what. 22 So, you said the DWR. Are they 50 percent responsible 23 for pumping? 25 percent responsible? What is the 24 percentage breakdown here? 25 MR. HILDEBRAND: I don't think they necessarily have to CAPITOL REPORTERS (916) 923-5447 8616 1 be responsible, but they seem to have undertaken some 2 element of responsibility in this joint point of diversion 3 business. And all of the analyses we made indicate that it 4 was going to be necessary for the State to wheel for the 5 Federals. In order to accomplish the recycling, it is an 6 option, and they would be involved in some degree, I 7 suppose, in priming the system out of San Luis although they 8 would be done by water that is Federal share water, 9 presumably. 10 MR. O'LAUGHLIN: Are we going to have DWR in or out? 11 When I submit a proposed order to the Board, if I like the 12 recirculation plan, do I have DWR in or out? 13 MR. HILDEBRAND: I think that is somewhat optional on 14 the part of these two projects. 15 MR. O'LAUGHLIN: You don't have any -- you don't care. 16 Do you care? 17 MR. HILDEBRAND: We don't care. 18 MR. O'LAUGHLIN: You don't really care who makes the 19 water available through recirculation; you just want it to 20 show up? 21 MR. HILDEBRAND: That's right. 22 MR. O'LAUGHLIN: It could be either the Bureau or DWR, 23 correct? 24 MR. HILDEBRAND: Correct. The actual release in it 25 has to come from the DMC. The state doesn't have release CAPITOL REPORTERS (916) 923-5447 8617 1 capability. So the Federal government is necessarily 2 involved, but the State optionally could assist, but they 3 don't need to. 4 MR. O'LAUGHLIN: Whose water are we going to take out 5 off of San Luis to prime the pump? Are we going to take 6 Federal water out or State water out? 7 MR. HILDEBRAND: I Would assume that the Federal share 8 of the water at San Luis would be used to prime the system, 9 but that is a trivial thing because it would be run for 31 10 days, rather small amount of water. 11 MR. O'LAUGHLIN: So, when we draft the order, we say 12 CVP makes up the priming of the water coming out of the San 13 Luis; is that correct? 14 MR. HILDEBRAND: I don't know that the Board needs to 15 stipulate exactly how that is done. 16 MR. O'LAUGHLIN: We'll just leave it open, Mr. 17 Hildebrand? 18 MR. HILDEBRAND: That is a possibility. 19 MR. O'LAUGHLIN: Now, getting back to your general 20 theme, we don't want to impact anybody. What happens on the 21 system if we take this priming water out and for some reason 22 we can't make up the pumping and get it back into San Luis? 23 Who should bear that cost, the CVP or the DWR? 24 MR. HILDEBRAND: I don't think the DWR would be 25 responsible for the loss unless they were involved in the CAPITOL REPORTERS (916) 923-5447 8618 1 recirculation itself. And the probability of not being able 2 to put it back in is extremely remote on the plan we 3 suggested. 4 MR. O'LAUGHLIN: I went back and I was just looking 5 over my notes here in regards to the principles here. DWR 6 doesn't have any diversion rights on the San Joaquin River 7 that you know of, do they? 8 MR. HILDEBRAND: No. 9 MR. O'LAUGHLIN: Do you believe -- is it your opinion, 10 excuse me, that the DWR has caused a salinity problem at 11 Vernalis? 12 MR. HILDEBRAND: No. 13 MR. O'LAUGHLIN: Have they caused a flow problem at 14 Vernalis? 15 MR. HILDEBRAND: No. 16 MR. O'LAUGHLIN: So, given your priority of the way we 17 were going to look at things, when I look at this proposal, 18 we should cross DWR off, shouldn't we? 19 MR. HILDEBRAND: They weren't crossed off with the San 20 Joaquin River Agreement. They were made part of the 21 backstop. So if they have agreed to be part of the 22 backstop, then they are involved. 23 MR. O'LAUGHLIN: Do you know under what conditions the 24 DWR was going to be the backstop for the San Joaquin River 25 Agreement, Mr. Hildebrand? CAPITOL REPORTERS (916) 923-5447 8619 1 MR. HILDEBRAND: I can't quote the agreement, but it is 2 in there. 3 MR. O'LAUGHLIN: Just a second. 4 Sorry. It is going to take me a second to find it. 5 Let's look at the first one. This is the San Joaquin 6 River Group Authority Exhibit Number 2, Page 13, Paragraph 7 10.1.2. It says: 8 In order to achieve the purpose of this 9 agreement, the Bureau has appropriated that 10 CDWR shall assume responsibility for the term 11 of this agreement for the San Joaquin River 12 Basin share of the Delta outflow objectives 13 of the 1995 Water Quality Control Plan. 14 (Reading.) 15 You see that? 16 MR. HILDEBRAND: I see that. 17 MR. O'LAUGHLIN: So DWR has signed on for Delta 18 outflow. Okay. Your recirculation plan doesn't include 19 Delta outflow; isn't that correct? 20 MR. HILDEBRAND: That's correct. 21 MR. O'LAUGHLIN: We don't need them for that. So let's 22 see if they are responsible for anything else. 23 MR. HILDEBRAND: Look at 10.1.3. It says: 24 The water required under this agreement 25 should be contributed by the SJRGA, its CAPITOL REPORTERS (916) 923-5447 8620 1 members, and the agencies comprising any 2 member of SJRGA, to assist the USBR and the 3 DWR in meeting the 1995 water quality 4 objectives. (Reading.) 5 Those objectives include the salinity standard and 6 standards at Vernalis. 7 MR. O'LAUGHLIN: That is correct. 8 So you believe by that paragraph, then, that DWR signed 9 up for the entire standards and objectives? 10 MR. HILDEBRAND: If I may be permitted to refer to 11 hearsay, I discussed with Mr. Potter, and he indicated that 12 was his understanding, that they were a party to the 13 backup. 14 MR. O'LAUGHLIN: Your understanding of the backstop is 15 that the backstop by DWR is applicable to the flow and 16 salinity requirement on the San Joaquin River? 17 MR. HILDEBRAND: It would include that, apparently. 18 MR. O'LAUGHLIN: Thank you. 19 Now let's get more specific in regards to pumping. Who 20 is going to pump the water for recirculation? Is it going 21 to be the Bureau or DWR? 22 MR. HILDEBRAND: The analyses we made were based on the 23 Bureau's pumping it, and it appeared that they had the 24 capacity to do so. However, it doesn't preclude this, 25 being assisted by the State. CAPITOL REPORTERS (916) 923-5447 8621 1 MR. O'LAUGHLIN: Under Flow Alternative Number 2 as -- 2 C.O. BROWN: Clarification, Mr. Chairman. 3 I didn't quite hear the answer. Would you please 4 repeat the answer. 5 MR. HILDEBRAND: Our analysis was based on the 6 assumption that the Federal pumps would, indeed, have the 7 capacity to pump by themselves; it would not be necessary to 8 have the wheeling by the State. However, we don't preclude 9 the State assisting in that pumping. It could arise, for 10 example, in that the -- in absence of the barriers, we have 11 a very severe drawdown problem that was at its worst during 12 low tide. One of the things that has been discussed, if the 13 State wheeled for the Feds and did not pump through the low 14 tide, it would enable the exporters to continue exporting at 15 a higher rate without damaging us. 16 Under that kind of situation, perhaps, if that applied, 17 during the pulse flow period maybe the State would wheel. 18 So we don't preclude it, but it doesn't appear to be 19 required. 20 C.O. BROWN: Clarification, Mr. Chairman. 21 C.O. STUBCHAER: Go ahead. 22 C.O. BROWN: Does that mean that the recirculation 23 concept or alternative, in your mind, could take place 24 either by wheeling through the DMC or the California 25 Aqueduct? CAPITOL REPORTERS (916) 923-5447 8622 1 MR. HILDEBRAND: The state could wheel the water down 2 to where it could be dropped into the DMC and from there 3 into the river, yes. 4 C.O. BROWN: Thank you. Thank you, Mr. O'Laughlin. 5 MEMBER FORSTER: Would you say that again? You said 6 pumping could be wheeled by the State. You talked about not 7 pumping during the low tide. And then you wouldn't be 8 harmed. You mean the Bureau not pumping during the low 9 tide? 10 MR. HILDEBRAND: That's right. During a period of -- 11 they can't turn it off and on on a tidal basis, but during a 12 period of very low tides if the Federal government slowed 13 down or stopped their pumping, the State could wheel that 14 water for them. Because the State can take it into Clifton 15 Court without taking it in during the low tide. 16 Consequently, they don't drawdown the low tide level to the 17 extent that the Fed pumps do. 18 They do draw down the high tide level very severely. 19 As far as low tides is concerned, they don't normally take 20 it into Clifton Court during low tide, and, consequently, 21 don't exacerbate that drawdown during the low tide. 22 MEMBER FORSTER: Is that what they do now, Mr. 23 Hildebrand? Do they try to do that now? 24 MR. HILDEBRAND: For the most part, the State does not 25 take the water into Clifton Court during low tide. CAPITOL REPORTERS (916) 923-5447 8623 1 MEMBER FORSTER: Is that to help you? 2 MR. HILDEBRAND: It does help us. That is not their 3 only motive, however. 4 MEMBER FORSTER: Thanks. 5 MR. O'LAUGHLIN: Getting back to this paragraph. Now, 6 when you chose generally Flow Alternative Number 2, getting 7 back to our principles, was that based on the priority or 8 the harm or the combination or the people who could fix it? 9 MR. HILDEBRAND: Just on the description that the 10 Number 2 that was given by the State Board staff, and Number 11 6 is also involved. 12 MR. O'LAUGHLIN: Now, there is some problems with Flow 13 Alternative Number 2, and you've identified those on Page, I 14 believe it is, Number 10 of your testimony, Mr. Hildebrand. 15 MR. HILDEBRAND: We have proposed a modification of 16 that in order to take care of that problem. 17 MR. O'LAUGHLIN: Just stay on Page Number 1. You 18 reviewed the Draft EIR that State Water Resources Control 19 Board has prepared for this hearing? 20 MR. HILDEBRAND: I did, but I confess it has been a 21 little while, so I won't remember it all. 22 MR. O'LAUGHLIN: On Page 6-16, Figure 6-14, it is 23 salinity for the San Joaquin River at Airport Bridge in the 24 months, simulated values for the period. 25 Have you reviewed that figure before, Mr. Hildebrand? CAPITOL REPORTERS (916) 923-5447 8624 1 MR. HILDEBRAND: I would have to look at it to refresh 2 my memory. 3 MR. HERRICK: Figure 6-16. 4 MR. O'LAUGHLIN: 6-14 on Page 16. 5 I will show it to you, Mr. Hildebrand. Sorry about 6 that. 7 Looking at that figure, Mr. Hildebrand, under 8 Alternative Number 2, are the salinity requirements met at 9 Airport Way in June, July or August? 10 MR. HILDEBRAND: Not entirely, no. 11 MR. O'LAUGHLIN: So, under the 1995 Water Quality 12 Control Plan, salinity under Alternative Number 2 does not 13 meet it in June, July or August according to the Draft EIR? 14 MR. HILDEBRAND: According to that draft. 15 MR. O'LAUGHLIN: Now, under Alternative Number 2, do 16 we run -- what happens at -- let me step back for a second. 17 Earlier in this hearing I believe I heard you say that 18 the salinity standard from April 1st to October 31st should 19 be extended; is that correct? 20 MR. HILDEBRAND: Yes. The Board in adopting the 21 salinity standard, the new salinity standard, did not accede 22 to our belief that the summer value of that salinity should 23 be extended to include March and September. Because -- 24 primarily because of the orchard crops that are irrigated at 25 those times which are salt sensitive, which they based their CAPITOL REPORTERS (916) 923-5447 8625 1 analysis entirely on row crops and didn't take into account 2 the impact on orchard crops. 3 MR. O'LAUGHLIN: Under Alternative Number 2, is there 4 an impact to carryover storage at New Melones Reservoir? 5 C.O. BROWN: Is there a what? 6 MR. O'LAUGHLIN: Is there an impact to carryover 7 storage at New Melones Reservoir under Alternative number 8 2? 9 MR. HILDEBRAND: I don't remember. 10 MR. O'LAUGHLIN: I would like to refer you to Table 11 Number V-6. It shows a -- under the alternative it shows a 12 carryover storage deficit at the end of September for the 13 '73 year period to be 305,000 acre-feet and then a critical 14 period 593,000 acre-feet. Are you aware of those numbers? 15 MR. HILDEBRAND: I don't remember the specific numbers, 16 but I am aware of the general intention. In analyzing any 17 of these modeling results, you have to know what the inputs 18 were. And at times the modeling was done with imaginary 19 water and various assumptions as to the degree of compliance 20 with the Vernalis standard, things of that sort. 21 So I wouldn't want to draw any great conclusions from 22 any one of the graphs or figures without analyzing what 23 inputs were used. 24 MR. O'LAUGHLIN: Dr. Orlob, who is sitting next to you, 25 is a well-known modeler; is that correct? CAPITOL REPORTERS (916) 923-5447 8626 1 MR. HILDEBRAND: He certainly is. 2 MR. O'LAUGHLIN: In your estimation, one of the best in 3 the State; is that correct? 4 MR. HILDEBRAND: Yes. 5 MR. O'LAUGHLIN: Has South Delta Water Agency asked Dr. 6 Orlob to review the modeling that was done for the Draft EIR 7 for the State Water Resources Control Board? 8 MR. HILDEBRAND: We don't have endless funds and time. 9 We don't have time to do everything we would like to do. 10 MR. O'LAUGHLIN: Now a couple quick things. Rather 11 than focusing in on the modeling, is it your understanding 12 that if the State Water Resources Control Board was to 13 choose Alternative Number 2 and impose all of these 14 requirements on New Melones Reservoir, what would happen at 15 New Melones Reservoir? 16 MR. HERRICK: Could I object to the question as 17 unclear? Impose all these requirements, you are talking 18 about the things specified in the DEIR or in the plans 19 submitted by SDWA or both? 20 MR. O'LAUGHLIN: I will be more specific. 21 Thank you, Mr. Herrick. 22 If the State Water Resources Control Board in 23 implementing the 1995 Water Quality Control Plan standards 24 for Vernalis adopts Alternative Number 2, what happens at 25 New Melones? CAPITOL REPORTERS (916) 923-5447 8627 1 MR. HILDEBRAND: I believe New Melones would run out of 2 water. 3 MR. O'LAUGHLIN: That wouldn't be good for water 4 quality, would it? 5 MR. HILDEBRAND: No. That is why we have not advocated 6 Number 2 without modification. 7 MR. O'LAUGHLIN: I just want to make clear as we go 8 through the presentation, we want Alternative Number 2, but 9 with modifications? 10 MR. HILDEBRAND: Correct. 11 MR. O'LAUGHLIN: If I am to understand your proposal 12 now, as we are sitting here on Page 1, once the 13 recirculation goes by and we meet the April 15th to May 15th 14 pulse flow, then the first place we should look, given 15 Alternative Number 2, is to New Melones Reservoir; is that 16 correct? 17 MR. HILDEBRAND: That is correct. But we will have 18 more water available in New Melones because of the 19 recirculation. 20 MR. O'LAUGHLIN: But I just want to get this clear, 21 because this is an extremely important point to me, since my 22 clients, one of my clients, is on the Stanislaus River. 23 My other clients are giving me bad looks behind me. I 24 can feel it. 25 Don't worry. CAPITOL REPORTERS (916) 923-5447 8628 1 What I want to know then, once the recirculation goes 2 by and if any additional water is needed by the 1995 Water 3 Quality Control Plan to meet standards at Vernalis, it is 4 going to come out of New Melones first? 5 MR. HILDEBRAND: Yes. Except the demand, the need for 6 that water will have been reduced both by the recirculation 7 itself and by the fact that we are assuming that you would 8 not be releasing water out of the other tributaries for the 9 pulse flow. And, therefore, you would have more flow coming 10 down the river from the other tributaries, not for the 11 purpose of maintaining quality, but they would contribute 12 vitally to that end. 13 MR. O'LAUGHLIN: But whether that happens by their good 14 nature or whether it happens because it physically happens, 15 you are not going to require an order from the Board to make 16 those other parties step up to the plate first. You want 17 New Melones first; is that correct? 18 MR. HILDEBRAND: That is correct. 19 MR. O'LAUGHLIN: So New Melones is first. 20 Now, in looking at the Draft EIR/EIS in the modeling 21 that was done, have you done modeling to understand how much 22 water will be saved at New Melones Reservoir due to the 23 recirculation? 24 MR. HILDEBRAND: Yes. 25 MR. O'LAUGHLIN: Where is that in your testimony? CAPITOL REPORTERS (916) 923-5447 8629 1 MR. HILDEBRAND: It is in the DWR's report, SDWA 12. I 2 was asked about this yesterday, and I had to refresh my 3 memory last night because the key table in here is not a 4 reader-friendly table. 5 MR. O'LAUGHLIN: What table are you looking at? 6 MR. HILDEBRAND: Table Number 7. It is not a 7 reader-friendly table. I was concerned about this at the 8 time this report was put out, but the figures are 9 there. And if you read the text, you can figure out what 10 they mean. If you want, I can discuss that table. 11 MR. O'LAUGHLIN: Well, no. I know where it is now. 12 Why don't we pass that for right now. I am interested in 13 that. We will get back to that point. We are going to 14 spend a little bit of time on Exhibit 12, because I find the 15 tables confusing as well as the text. 16 MR. HILDEBRAND: They are not reader friendly. 17 C.O. STUBCHAER: We have agreement. 18 MR. HERRICK: Still may be the case. 19 MR. O'LAUGHLIN: Now, in your view of Alternative 20 Number 2, we go to New Melones first. Do we then go -- 21 let's say New Melones is running really low on water, and it 22 doesn't have enough water to meet the water quality 23 standards. 24 Do we then go to Friant? 25 MR. HILDEBRAND: I think the responsibility would be CAPITOL REPORTERS (916) 923-5447 8630 1 with the Bureau. But the water could be provided by the 2 Bureau through other sources and not taken away from Friant 3 water users. 4 MR. O'LAUGHLIN: If there is a shortfall, Bureau makes 5 it up. That is clearly going to take water from the CVP, 6 correct? 7 MR. HILDEBRAND: Yes. 8 MR. O'LAUGHLIN: Whether or not -- I am not a CVP 9 person. Whether or not that would actually impact the CVP 10 contractor would be between the CVP contractor and the 11 Bureau, correct? 12 MR. HILDEBRAND: Yes. However, we believe it can be 13 done in ways that do not take water from water users. 14 MR. O'LAUGHLIN: Not on the recirculation. This is 15 water that is just going to go out to the Bay. So, let's 16 say New Melones has to release all this water and they have 17 to do that and their contractors don't -- if they don't get 18 a supply, that is between, in your view, the contractors and 19 the Bureau, right? 20 MR. HILDEBRAND: That's right. But they can strive to 21 do it in a way which causes minimum impact. We would agree 22 with that. 23 MR. O'LAUGHLIN: All right. 24 On the fourth paragraph, it says the Bureau and state 25 impacts on fishery are clearly evidenced by the large number CAPITOL REPORTERS (916) 923-5447 8631 1 of fish entrained and killed at the pumps. See that? 2 MR. HILDEBRAND: I see that. 3 MR. O'LAUGHLIN: So, is it your opinion that by the 4 Bureau and DWR pumping water at the pumps that they are 5 having a deleterious effect on the fish in the Delta? 6 MR. HILDEBRAND: Yes. But whether it is a dominant 7 effect, we don't know. The effect, for example, of the 8 mitten crabs was very substantial. So there are a lot of 9 other causes. Exotic species are a major cause. It 10 definitely is an effect. We don't know whether it is a 11 dominant effect. 12 MR. O'LAUGHLIN: So, do you have an opinion as to 13 whether or not pumping entrains fish and kills them? 14 MR. HILDEBRAND: It does. But the question is whether 15 it is a dominant cause with the decline in fisheries. 16 MR. HERRICK: Just to make sure that the question is 17 clear, that question dealt with export pumping or -- 18 MR. O'LAUGHLIN: Yes. Export. This is all export, 19 DWR and USBR. 20 MR. O'LAUGHLIN: Under your proposal you will be 21 pumping additional water during the 30-day pulse flow period 22 in order to recirculate water; is that correct? 23 MR. HILDEBRAND: That's right. 24 MR. O'LAUGHLIN: If the pumps are entraining fish and 25 killing them, why in your proposal do you want to pump more CAPITOL REPORTERS (916) 923-5447 8632 1 water? 2 MR. HILDEBRAND: The question of whether increasing the 3 pump rate would increase the loss of fish is controversial. 4 Going back to the discussion we had yesterday, it was my 5 understanding of the testimony of the biological people that 6 there was -- perhaps all but one of them thought that there 7 was a correlation between the flow of the San Joaquin River 8 reaching the -- getting down to Stockton on the effect on 9 the loss of salmon smolts. 10 There was not any such indication that they had any 11 conviction that the rate of pumping made that much 12 difference, if there was any dominant factor. In fact, the 13 whole purpose of the VAMP experiments was to find out 14 whether the rate of export pumping really makes any 15 difference in the overall picture. 16 MR. O'LAUGHLIN: Wouldn't it be a better statement to 17 say that the VAMP program is to look at a combination of 18 increased flows, the installation of Head of Old River 19 Barrier and actually the reduction in export pumping? 20 MR. HILDEBRAND: I think it was to determine the 21 influence of, they want to make tests, for example, with 22 1,500 cfs export versus 3,000, see if there is a 23 difference. And so I don't think that the experiment 24 prejudges the outcome. 25 MR. O'LAUGHLIN: Have you -- and I am sorry I was not CAPITOL REPORTERS (916) 923-5447 8633 1 here this [verbatim] afternoon. If I start getting 2 redundant, let me know and I will move on. 3 So, have you talked to anyone at U.S. Fish and Wildlife 4 or National Marines Fisheries or the California Department 5 of Fish and Game that wants to see one-to-one pumping at the 6 export pumps during the April to May pulse flow period? 7 MR. HILDEBRAND: I can't say that they have said they 8 want to have one-to-one. But it is a control plan to permit 9 that. And I don't think there is testimony that clearly 10 indicates that it is necessary to avoid it. 11 MR. O'LAUGHLIN: I am going to run through some things 12 really quickly. 13 Have you run this proposal by U.S. Fish and Wildlife 14 Service in regards to their Delta Smelt Biological Opinion 15 to see if it meets the Delta Smelt BO? 16 MR. HILDEBRAND: Well, as we discussed yesterday, I did 17 discuss it one time. I was accused of introducing hearsay 18 that Mike Thabault discussed it with me and Roger Guinee. 19 And at that time, which was some little time ago now, it was 20 my understanding that Mike neither endorsed nor precluded 21 this possibility. 22 And we also explained in our testimony that a good 23 deal of recirculation can be done within the range of their 24 biological opinion, which would seem to imply that it ought 25 to be acceptable. CAPITOL REPORTERS (916) 923-5447 8634 1 MR. O'LAUGHLIN: Now that fall-run may be listed, have 2 you talked to anyone at NMFS in regard to your proposal and 3 proposed recirculation and export pumping? 4 MR. HILDEBRAND: I haven't talked to NMFS since that 5 threat was made, and it hasn't happened yet. So it was 6 somewhat hypothetical to talk about it. 7 MR. O'LAUGHLIN: I'm sorry, what threat? 8 MR. HILDEBRAND: The threat of the listing of 9 fall-run. 10 MR. O'LAUGHLIN: Probably more of a reality than a 11 threat. 12 You don't have a consultation or conference -- and I 13 don't use those in the technical terms. I just mean you 14 haven't discussed with NMFS yet what your recirculation plan 15 looks like in light of their potential to list fall-run? 16 MR. HILDEBRAND: No. Not with NMFS. 17 MR. O'LAUGHLIN: Have you consulted with U.S. Fish and 18 Wildlife or Fish and Game in regards to the impacts of your 19 proposal on splittail? 20 MR. HILDEBRAND: I don't think on splittail, but on 21 salmon. 22 MR. O'LAUGHLIN: What about on steelhead? 23 MR. HILDEBRAND: I had some discussion of that. And it 24 was my understanding that at this point in time they are not 25 prepared to say whether the considerations for protection of CAPITOL REPORTERS (916) 923-5447 8635 1 steelhead will or won't introduce new requirements over 2 those required for salmon. 3 MR. O'LAUGHLIN: In fact, we are waiting for a 4 biological opinion on that? 5 MR. HILDEBRAND: That's right. 6 MR. O'LAUGHLIN: What about spring-run? Have you 7 talked to Fish and Game on spring-run and the impact of your 8 recirculation program on spring-run? 9 MR. HILDEBRAND: To the best of my knowledge, there is 10 no spring-run in the San Joaquin River. 11 MR. O'LAUGHLIN: The spring-run pass through the Delta? 12 MR. HILDEBRAND: Yes. But our proposal here does not 13 draw Sacramento water across to the pumps, and, 14 consequently, shouldn't affect the Sacramento run. 15 MR. O'LAUGHLIN: That is an interesting statement that 16 you made right there. I am going to go off the biological 17 stuff for just a minute. 18 Have you run any in-Delta modeling to ensure that 19 you're not drawing more water across the Delta to the pumps 20 by increasing the rate of export during the April/May pulse 21 flow period? 22 MR. HILDEBRAND: I don't know that we have done 23 modeling, although we could easily do that. But just the 24 logic of the thing is that the reason the water flows across 25 from the Sacramento River to the pumps is because of a CAPITOL REPORTERS (916) 923-5447 8636 1 drawdown which creates a gradient. Now, if you are 2 supplying those pumps with water that comes from the south 3 rather than from the north, you don't create that drawdown 4 and hence wouldn't draw them across. 5 MR. O'LAUGHLIN: Is it a money factor, again, why South 6 Delta Water Agency hasn't done any modeling or asked DWR to 7 do some modeling about what its proposal would really look 8 like and its effects on in-Delta velocities and so forth? 9 MR. HILDEBRAND: DWR has done a lot of modeling on that 10 general subject. And we have been overseers, you might say, 11 of that work. And I think it's been enough done to pretty 12 well establish what I said. 13 MR. O'LAUGHLIN: What about -- the last one I have on 14 my list, and there may be more, but I am not aware of them. 15 Winter-run. 16 MR. HILDEBRAND: Again, the winter-run is not in the 17 San Joaquin River system. So it is as long as you don't 18 draw across from Sacramento, you shouldn't affect them. 19 MR. O'LAUGHLIN: Given the existing biological 20 opinions, and maybe some upcoming biological opinions, what 21 leads you to believe that the regulatory agencies are going 22 to want to see more pumping at the export pumps during the 23 April to May 15th pulse flow period? 24 MR. HERRICK: I will object to the question. The 25 testimony has not been that the agency wants that, but CAPITOL REPORTERS (916) 923-5447 8637 1 whether or not they will consider that. 2 MR. O'LAUGHLIN: My specific word, and I spent some 3 time on this, I said "allow." 4 MR. HILDEBRAND: I thought you said "want." 5 MR. O'LAUGHLIN: Let me go back and rephrase the 6 question. I wrote it down here. I wanted to make sure that 7 I got the -- 8 MR. HILDEBRAND: Can't read your own writing, then? 9 MR. O'LAUGHLIN: It's getting bad, Alex. 10 Given the existing biological opinions and maybe some 11 upcoming biological opinions in the status of endangered 12 species, what leads you to believe that regulatory agencies 13 will allow more pumping during the April/May pulse flow 14 period? 15 MR. HILDEBRAND: We discussed this at some length 16 yesterday. We feel that the Comprehensive Plan has benefits 17 for fishery as well as possible detriments. If you look at 18 the overall benefit to fishery of this plan versus something 19 else, that it appears that there would be a net benefit for 20 fishery, and that, therefore, they might revise their 21 opinion as compared to the opinions they render when they 22 are looking at only one component itself. 23 In fact, again, I have to resort to hearsay. I am told 24 that, although the Fish and Wildlife through Mr. Vandenberg 25 took exception to the barriers, they have indicated that CAPITOL REPORTERS (916) 923-5447 8638 1 that was because they are viewing them in isolation. And if 2 it was viewed as part of the overall plan that has some 3 benefits to fishery, they might have a different view. 4 MR. O'LAUGHLIN: Let's get to implementation. 5 C.O. STUBCHAER: Mr. O'Laughlin, Ms. Forster has a 6 question. 7 MEMBER FORSTER: Alex, can you direct me to anything in 8 the exhibits that gives a good explanation of the net 9 benefit to fisheries? Is that discussed and developed in -- 10 MR. HILDEBRAND: We didn't go into it extensively in 11 the interest of brevity. But in my testimony here, and I'll 12 try to find the page reference, we got into the business of 13 the effect of the plan on improving the water quality and 14 flow in the rather critical portion of the San Joaquin main 15 stem downstream of the Merced River. And that we believe is 16 a rather significant benefit of our plan. The magnitude of 17 the benefit is indicated in this report, DWR report, in that 18 it addresses the effect of the plan on the water quality and 19 flow at Crows Landing and not just at Vernalis. The benefit 20 at Crows Landing is very substantial in terms of both 21 salinity and flow of the Comprehensive Plan. 22 So it would be up to the biologist to say what 23 magnitude of benefit would accrue to the fishery, but we 24 believe it would be substantial. 25 MR. O'LAUGHLIN: Just to help you a little bit, on Page CAPITOL REPORTERS (916) 923-5447 8639 1 3 under Affects of Recirculation, going on to Page 4, Mr. 2 Hildebrand, is where you set forth the biology behind your 3 recirculation plan; is that correct? 4 MR. HILDEBRAND: Yes. 5 MEMBER FORSTER: I read it. Thanks. 6 C.O. STUBCHAER: Mr. Brown has a question, also. 7 C.O. BROWN: You were absent yesterday afternoon, Mr. 8 O'Laughlin, but Mr. Hildebrand gave, if I recall this 9 correct, an example of a test that you participated in, 10 impingement of count of fish, something about supporting one 11 fool herring, which was quite interesting. 12 Would you repeat that. 13 MR. HILDEBRAND: That had to with the question 14 regarding the screening of the diversion intakes in the 15 South Delta. We did have tests that were made by the Fish 16 and Game Department with the assistance of the Department of 17 Water Resources in my district and another district down to 18 Fabian Tract. The two provided a relatively representative 19 cross-section. And in screening the entire discharge of 20 these diversion pumps, the pumps being submerged turbine 21 pumps which vibrate a little bit, scare the fish away, we 22 did not entrain enough fish over a period of days to feed 23 one great blue heron. And I know endangered species; there 24 were a few striped bass. Other than that, there were mostly 25 what you'd call trash fish. CAPITOL REPORTERS (916) 923-5447 8640 1 MR. O'LAUGHLIN: Those are native fish in California. 2 MR. HILDEBRAND: Some of those are introduced species. 3 MR. O'LAUGHLIN: I was just kidding. That was 4 directed to somebody in the audience who knows who he is. 5 We've been through this discussion. I am sorry. 6 Let's talk about implementation. In your understanding 7 of your proposal, where are you in the process of trying to 8 get the regulatory approval by U.S. Fish and Wildlife, 9 California Department of Fish and Game or the National 10 Marine Fisheries to implement your program? 11 MR. HILDEBRAND: Can't very well start that permit 12 process for the program till it has approval from the State 13 Board. 14 MR. O'LAUGHLIN: If I understand that response, you 15 haven't started the process to get regulatory approval to 16 put into place your recirculation program? 17 MR. HILDEBRAND: No. 18 MR. O'LAUGHLIN: So now, you've been around these 19 agencies long enough, let's say the State Water Resources 20 Control Board decides on April 15th of this year to adopt 21 your recirculation program. How long do you think it is 22 going to take you to get approvals by U.S. Fish and 23 Wildlife, Fish and Game and NMFS to implement your 24 recirculation program? 25 MR. HILDEBRAND: I would be hopeful that we could CAPITOL REPORTERS (916) 923-5447 8641 1 rather promptly get a permit to do it on an experimental 2 basis, test basis. By the time that was done, we could get 3 more permit approvals. No physical facility to be built or 4 anything of that sort. 5 MR. O'LAUGHLIN: So, by the following April you would 6 hope to be up and running with your proposal; is that 7 correct? 8 MR. HILDEBRAND: For trial basis, yes. 9 MR. O'LAUGHLIN: Would you see those as one-year 10 biological opinions that would come out by these regulatory 11 agencies to allow you to do it on a trial basis? 12 MR. HILDEBRAND: Something of that nature. I just 13 don't know what avenues they have for doing these things, 14 making progress rather than delay. 15 MR. O'LAUGHLIN: Why do you want it on a trial basis? 16 Why are we doing this on a trial basis? 17 MR. HILDEBRAND: It's easier to get a permit promptly 18 if it is for a trial than if it is for a permanent thing, 19 if you're seeking a permanent subject to the success of 20 trial. 21 MR. O'LAUGHLIN: Is your program that you are offering 22 to the State Board -- let's say your program doesn't do what 23 you think it is going to do five years out and you're a man 24 of science and you come back. This just didn't do what I 25 thought it was going to do. Right? CAPITOL REPORTERS (916) 923-5447 8642 1 MR. HILDEBRAND: That would be true of any of these 2 alternatives. 3 MR. O'LAUGHLIN: We come back and reevaluate them, 4 correct? 5 MR. HILDEBRAND: Sure. 6 MR. O'LAUGHLIN: You don't see this as the solution to 7 the San Joaquin River; is that correct? 8 MR. HILDEBRAND: I think the long-term solution has got 9 to include raising Friant and it's got to include a valley 10 drain. 11 MR. O'LAUGHLIN: On Page 1, Item Number 1, why -- you 12 said on the first page there that you would provide the 13 31-day pulse flow period never below 3,200 cfs. 14 Why are you proposing the VAMP flows instead of 15 implementing the 1995 Water Quality Control Plan? 16 MR. HILDEBRAND: If you read the rest, we said our plan 17 could provide either the VAMP flows or the Water Quality 18 Control Plan flows. We are not taking a position on which 19 it should be. We explicitly make that point. 20 MR. O'LAUGHLIN: If the Board adopts it and goes 21 forward with your plan, if the Board wanted to implement the 22 1995 Water Quality Control Plan standards and objectives 23 rather than the VAMP flows, then that would be okay under 24 our plan? 25 MR. HILDEBRAND: That's fine, yes. We take no position CAPITOL REPORTERS (916) 923-5447 8643 1 on that. 2 MR. O'LAUGHLIN: On the next one you say, Number 2, 3 that you will meet the Vernalis standard, salinity standard, 4 at all times and in all years? 5 MR. HILDEBRAND: Yes. 6 MR. O'LAUGHLIN: I understood this with the 7 recirculation plan for the 31-day pulse flow period that 8 that would meet water quality? 9 MR. HILDEBRAND: We don't have any problem during pulse 10 flow. 11 MR. O'LAUGHLIN: So where -- if we are going to meet 12 Vernalis salinity standards at all times and in all years, 13 and let's say there is a deficit in meeting that, do we go 14 back up here where you stated before that we should first 15 look at New Melones if we were running short on water 16 quality? 17 MR. HILDEBRAND: I am not sure I understand the 18 question. If the water required to meet the Vernalis 19 standard, and will come from several sources, and we discuss 20 at some length the potential as to where those sources could 21 be. The first place, if you do the recirculation, you then 22 do not release water out of New Melones or other tributaries 23 for the purpose of the Vernalis flow and consequently that 24 water is still in the system. 25 Secondly, if we run short of sufficient water to meet CAPITOL REPORTERS (916) 923-5447 8644 1 the standards, we say the next step is to buy water from 2 outside the San Joaquin River system to augment the system 3 rather than to take water and to shift it from one time of 4 the year to another. 5 So, between saving water, between the reduction in 6 requirement for dilution that results from the recirculation 7 and the control of time of entry of the drainage salts and 8 you combine these various savings in water and sources of 9 water, then you can take care of it at all times. 10 MR. O'LAUGHLIN: I want to be more specific, though. 11 Is that outside the 31-day pulse flow period? We are 12 looking; it is July. Vernalis is at 750 EC. The standard 13 is being violated. Who do we go to first to make sure that 14 that water quality gets in compliance? 15 MR. HILDEBRAND: New Melones. 16 MR. O'LAUGHLIN: So, we go to New Melones first. 17 After New Melones, if the CVP doesn't have enough water at 18 New Melones, where do we go next? 19 MR. HILDEBRAND: Our proposal is that the CVP must 20 budget whatever water is necessary to meet it on a 21 year-round basis. If they don't budget enough in New 22 Melones, they have to have a plan for how else they will do 23 it. 24 MR. O'LAUGHLIN: If your understanding -- if your 25 proposal goes forward, then you would like to see that the CAPITOL REPORTERS (916) 923-5447 8645 1 water at New Melones is first dedicated in priority to water 2 quality? 3 MR. HILDEBRAND: I wouldn't put it that way. Because 4 we are saying that the Bureau must have a plan that it 5 submits to the Board to show that it is making provision for 6 meeting that standard. And to the extent they can meet it 7 by budgeting water in New Melones, fine. If they don't have 8 enough water, they have to go to other measures. It should 9 be part of their plan complying with the provision. 10 MR. O'LAUGHLIN: We just went through the 1997 and 1998 11 drought, and New Melones almost ran dry. Isn't it your 12 opinion that there is not enough water in New Melones to 13 meet all of its competing needs? 14 MR. HILDEBRAND: I conceded that on rare occasions, 15 like '77, and there are darn few of those, that it might not 16 be possible to meet the standard. We might have to do as we 17 did in that year, I believe we discussed somewhat yesterday, 18 of getting the parties together and agreeing on how to share 19 the shortage. 20 MR. O'LAUGHLIN: If the Board's going to draft an order 21 on the Stanislaus when we went through the 1987 through '92 22 drought, there just wasn't enough water for everyone. Is 23 that correct? 24 MR. HILDEBRAND: It's true that there may be rare 25 occasions when the standard established by the Board cannot CAPITOL REPORTERS (916) 923-5447 8646 1 be met, whether it be this standard or another standard, due 2 to extremes in the weather. 3 MR. O'LAUGHLIN: But your program says that you are 4 going to meet -- what I am confused about. I understand 5 that. But your program says that you are going to meet the 6 salinity standards under all conditions. We know New 7 Melones doesn't have a enough water to meet the salinity 8 standard under all conditions; isn't that correct? 9 MR. HILDEBRAND: Yes. I suppose it should have been 10 slightly qualified to say under all conditions when possible 11 to do that, but not restricted solely to doing it with 12 releases from New Melones. 13 MR. O'LAUGHLIN: Now, we are in the 1986 through 1992 14 drought. New Melones is down to 50,000 acre-feet, can't get 15 water out. Things are really bad there. Should we then 16 turn to Friant and ask them to release water? Should we go 17 to the CVP contractors on the DMC and tell them to release 18 water into the DMC? Or should we go and buy water from CVP 19 contractors and tell them to release it into the river? 20 MR. HILDEBRAND: I think the optimum methods of 21 accomplishing it would be a matter of determination under 22 the circumstances at the time. But under those conditions, 23 the export rates are way down. It would be feasible to 24 wheel water and do circulation. At other times of the year 25 it would be possible to buy water from any of the export CAPITOL REPORTERS (916) 923-5447 8647 1 contractors for release into the river instead of delivery 2 to those contractors. So there are a number of options. 3 I don't -- just as we didn't decide during that drought 4 that you would do some one thing; we had practically monthly 5 meetings, and figured out what was the most efficient way to 6 manage available water among the parties with sharing the 7 problem. 8 MR. O'LAUGHLIN: How much, in your opinion, based on 9 going through the 1987 through '92 drought, how much do you 10 think it would cost to go to a CVP contractor on the DMC and 11 buy water during the drought period? What do you think the 12 price per acre-foot would be? 13 MR. HILDEBRAND: I don't know. I think it is an 14 obligation to meet that salinity standard whatever the 15 price. That is some price it can be done. It isn't a 16 question of there should be -- you only abide by the 17 standard when it doesn't cost you any money. 18 MR. O'LAUGHLIN: So, then under your -- you would allow 19 the Bureau the discretion under this order that is going to 20 come out to go ahead and buy water. So, let's say they 21 can't buy water from contractors; nobody wants to give it 22 up. They want to plant crops. Then the next scenario would 23 be that we would go to Friant and get water, right? 24 MR. HILDEBRAND: I have included Friant in the 25 potential for buying water, except that they wouldn't have CAPITOL REPORTERS (916) 923-5447 8648 1 to release directly out of Friant. They could do it by an 2 exchange. 3 MR. O'LAUGHLIN: Have you talked to anybody in the 4 Friant unit about buying water during drought periods? 5 MR. HILDEBRAND: No. But the Bureau is planning to buy 6 water from tributaries at the present time without having 7 discussed with those people whether they are going to do it 8 in a drought period. 9 MR. O'LAUGHLIN: What water is Friant buying from 10 tributaries? 11 MR. HILDEBRAND: I didn't say Friant; I said the 12 Bureau. 13 MR. O'LAUGHLIN: Let's stick to the Friant thing. Are 14 you aware of any member units within the Friant water users 15 selling water outside their service area? 16 MR. HILDEBRAND: Yes, I believe so. 17 MR. O'LAUGHLIN: Which one is that? 18 MR. HILDEBRAND: I don't know all the details. There 19 are -- I think we even had some examples in our testimony of 20 people who have been selling water. The Arvin-Edison people 21 have made sales to Metropolitan Water District. There have 22 been other sales to indicate there is a market there. At 23 some price you can get water. 24 MR. O'LAUGHLIN: Let's talk about Arvin-Edison a little 25 bit. Has that sale actually been consummated? CAPITOL REPORTERS (916) 923-5447 8649 1 MR. HILDEBRAND: I don't know. 2 MR. O'LAUGHLIN: You're assuming that -- that document 3 assumes that the Arvin-Edison sale has gone through and 4 Metropolitan is buying water; is that correct? 5 MR. HILDEBRAND: I am not assuming that specific sale. 6 After all, the CVPIA proposed purchases assumed they are 7 going to be able to buy enormous quantities of water. I 8 think 600,000 acre-feet on three tributaries. So, that plan 9 hasn't been thrown out because it is infeasible although I 10 think it is. 11 MR. O'LAUGHLIN: I am just -- 12 MR. HILDEBRAND: CalFed is assuming that they are going 13 to get water for fishery by buying it, by water acquisition. 14 They made no assessment who they would buy it from or what 15 price they would have to pay for it. 16 MR. O'LAUGHLIN: What I am getting at is, where in the 17 Friant are you aware of that the Friant has actually made a 18 sale outside of its service area? 19 MR. HILDEBRAND: I am not familiar with the detail. 20 All I know there has been serious consideration of various 21 things that indicates some willingness to sell water. 22 MR. O'LAUGHLIN: Let's talk about Arvin-Edison. Are 23 you aware that the document that you have in front of the 24 Board is no longer on the table? 25 MR. HILDEBRAND: You mean the sale has been cancelled? CAPITOL REPORTERS (916) 923-5447 8650 1 MR. O'LAUGHLIN: It's been revised. 2 MR. HILDEBRAND: No. That is not on the point. The 3 point is there are people who are willing to sell water. 4 MR. O'LAUGHLIN: In Arvin-Edison, are they going to 5 make Class I water or Class II water available? 6 MR. HILDEBRAND: I don't know. 7 MR. O'LAUGHLIN: If I told you it was only Class II 8 water that was going to be made available in an in lieu 9 recharge program, what good would that do the South Delta 10 Water Agency for water quality in a dry year? 11 MR. HILDEBRAND: You insist on focusing on a specific 12 party and a specific sale. All we are doing is pointing out 13 that there are people willing to sell water at some price. 14 That, therefore, you can't preclude that as a way of meeting 15 our needs. 16 MR. O'LAUGHLIN: What I am getting at, Mr. Hildebrand, 17 is this: Where are you familiar within the CVP that someone 18 during the 1987 through '92 drought was going to sell water 19 from CVP outside their service area? 20 MR. HILDEBRAND: I don't have any specifics on that. 21 Neither do these other agencies who propose to buy water 22 have specifics. 23 MR. O'LAUGHLIN: Your proposal, though, is to try to 24 meet the 1995 Water Quality Control Plan, correct? 25 MR. HILDEBRAND: Correct. CAPITOL REPORTERS (916) 923-5447 8651 1 MR. O'LAUGHLIN: In order to meet the plan, don't we 2 have to be somewhat assured that water is going to made 3 available to get and meet the standards? 4 MR. HILDEBRAND: It comes back to the point that if we 5 do indeed on rare occasions come into situations where it is 6 impossible to meet this or any other water quality standard, 7 it isn't going to get met. It's physically impossible. 8 MR. O'LAUGHLIN: But are you -- you agree that the 9 State Water Resources Control Board has standards for 10 critically dry years on the San Joaquin River? 11 MR. HILDEBRAND: Yes. It doesn't mean that in a year 12 like '77 they necessarily be feasible. 13 MR. O'LAUGHLIN: What is your threshold or criteria for 14 determining what is feasible? 15 MR. HILDEBRAND: Whether there is physically water 16 available to do the job at some price. 17 MR. O'LAUGHLIN: Let's say that there is clearly water 18 at San Luis Reservoir, sitting there there is about 500,000 19 acre-feet. And we know to meet the Water Quality Control 20 Plan standards at Vernalis that it is going to take about a 21 hundred acre-feet out of San Luis. The water is there, 22 though; we know it is. So, A, are we going to -- is the 23 State Board going to issue an order and say, "Release the 24 water," or is it, "Gee, we'd really like you to negotiate a 25 sale, and if you can do it, that would be great. If you CAPITOL REPORTERS (916) 923-5447 8652 1 can't, that is okay, too"? 2 MR. HILDEBRAND: That is the reverse of the way the 3 Board would go about it. 4 MR. O'LAUGHLIN: Okay. 5 MR. HILDEBRAND: In order to be relieved of the 6 obligation of meeting the standard, they -- Bureau would 7 have to go to the Board and get permission to violate the 8 standard, and that would be up to them, the Board, then to 9 decide whether it is really infeasible or whether just 10 inconvenient. 11 MR. O'LAUGHLIN: Getting back to the hypothetical, 12 though. We have 500,000 acre-feet in San Luis. We need a 13 hundred thousand acre-feet to meet the plan at Vernalis. 14 Are you saying that the Bureau has to pay any price to get 15 that water and release it? And if they don't, then they are 16 going to get an order and told to release it? 17 MR. HILDEBRAND: I am saying that the Bureau could 18 petition the Board for relief from the obligation of meeting 19 the standard. And the Board's decision whether or not to 20 grant that relief, they would consider feasibility as being 21 met, such as water out of the San Luis that belongs to the 22 Bureau. 23 MR. O'LAUGHLIN: The last things, to kind of bring this 24 around then, also your understanding is that by making this 25 pulse flow water available will back water up in the CAPITOL REPORTERS (916) 923-5447 8653 1 storages into these reservoirs and into New Melones, 2 correct? The add water you talked about, the additional 3 water? 4 MR. HILDEBRAND: Whether it backs it up to storage or 5 not depends on what is done with storage. If you don't take 6 the water out of the tributaries for the pulse flow, it is 7 then available for these other purposes, and the other 8 purposes to which it is likely to be met and utilized, 9 whether it be power release or whether it be agricultural, 10 supply, going to involve increasing the flow in the summer 11 in the river. 12 MR. O'LAUGHLIN: Earlier you mentioned the State Water 13 Resources Control Board staff did the modeling for the Draft 14 EIR that, and I use your term because I wrote it down. In 15 the modeling there was, quote-unquote, imaginary water. 16 What are you talking about there? 17 MR. HILDEBRAND: That term has been used by the 18 modelers. Talked to them at DWR, that they have sometimes 19 done modeling without defining where the water would come 20 from. And knowing full well that they want to be able to be 21 unimpaired flow or depleted flow, probably is not going to 22 be sufficient. 23 MR. O'LAUGHLIN: Is it your understanding that, in 24 fact, for one of the modeling runs that was done, 25 Alternative Number 3, that is exactly what the Board did? CAPITOL REPORTERS (916) 923-5447 8654 1 MR. HILDEBRAND: I don't remember specifically which 2 model assumptions were used in which cases, but I have been 3 over this with the modelers at times as to what assumptions 4 they were making in doing this test. On modeling for this 5 recycling thing we had to modify a model they had been using 6 for some of these analyses because it did, in fact, involve 7 either presumed violations of the standards or imaginary 8 water. 9 MR. O'LAUGHLIN: Let's talk about that. When you turn 10 to SJRIO, I would like to spend a little bit of time on 11 Exhibit 12 and how it ties into this add water. 12 C.O. STUBCHAER: Mr. O'Laughlin, we have a little less 13 than an hour, Mr. Hildebrand's time. I haven't run the 14 clock on you because what you have been doing is relevant. 15 Could you describe for the Board how you intend to make 16 best use of the remaining time or the way, if you think it 17 is going to go over to another day? The way I see it, we 18 haven't gone much past Page 1 and a half on the exhibit. We 19 are on 51. 20 MR. O'LAUGHLIN: Unfortunately, yes. I realize 21 that. I want to go through the San Joaquin -- the SJRIO 22 model in some detail, since that is the model that was used 23 for the factual underpinnings of the recirculation proposal. 24 It is important for us to understand the model, the 25 assumptions that went into the model and what are the CAPITOL REPORTERS (916) 923-5447 8655 1 outputs from the model. I don't know -- as Mr. Hildebrand 2 says, it is a fairly difficult model to decipher and read. 3 So that is going to take probably an hour or more to do 4 that. There is cleanup questions in regards to the rest of 5 Mr. Hildebrand's testimony. I would say that there is -- I 6 am clearly not going to get done within the hour with Mr. 7 Hildebrand. 8 C.O. STUBCHAER: Is Mr. Hildebrand the proper witness 9 to discuss the model? 10 MR. O'LAUGHLIN: We can ask him that question. 11 My understanding, Alex, is that you worked on the 12 modeling and the methodology for the San Joaquin River -- 13 SJRIO. 14 MR. HILDEBRAND: The modeling was actually done by DWR 15 personnel. There was an oversight group which included a 16 modeler from the Bureau, a modeler representing Dan Nelson's 17 organization, a modeler from the Contra Costa Water 18 District, and I think I am skipping somebody, and then Dr. 19 Orlob and myself. 20 MR. O'LAUGHLIN: Would it -- would you, with Dr. Orlob 21 next to you, feel comfortable in responding to questions in 22 regards to SJRIO? 23 MR. HILDEBRAND: Yes. 24 MR. O'LAUGHLIN: We are going to have to bring him 25 back, I am sorry to say that. If he has to go, I still have CAPITOL REPORTERS (916) 923-5447 8656 1 time with him. I think there is no sense trying to get an 2 extra hour in. I think if he came back -- what is our next 3 hearing day? Are you available next Tuesday? 4 MR. HILDEBRAND: I am available next Tuesday. 5 MR. O'LAUGHLIN: Are you available, Dr. Orlob? 6 DR. ORLOB: Yes. 7 MR. O'LAUGHLIN: I will be done by Tuesday. 8 C.O. STUBCHAER: Do you have any questions for Dr. 9 Orlob alone? 10 MR. O'LAUGHLIN: I am prepared to go with Dr. Orlob if 11 you want. I have no problem with that. 12 C.O. STUBCHAER: Available this afternoon, Dr. Orlob? 13 DR. ORLOB: I hadn't planned on it, but I can stick 14 around. Or if he wants to start now. 15 MR. O'LAUGHLIN: I don't want to -- there is no sense 16 killing ourselves. It is going to take some time. Why 17 don't we take our lunch break, come back. If Dr. Orlob 18 wants to start this afternoon, that is fine. 19 I can guarantee you that by next Tuesday I will be 20 finished with both Mr. Hildebrand and Dr. Orlob. 21 C.O. STUBCHAER: By next Tuesday? 22 MR. O'LAUGHLIN: Yes. 23 C.O. STUBCHAER: We don't convene till -- 24 MR. O'LAUGHLIN: I will be finished by 4:30 p.m. next 25 Tuesday. CAPITOL REPORTERS (916) 923-5447 8657 1 MR. HERRICK: Four. 2 MR. O'LAUGHLIN: Did they change the time? 3 MR. HILDEBRAND: If I may make a point here. I think 4 that in the examination of this report, talking about SDWA 5 12, that it would be desirable that Dr. Orlob and I both be 6 present since we were both involved. But neither of us -- 7 there is a large overlap. 8 MR. O'LAUGHLIN: I understood that, Mr. Hildebrand, 9 based on my discussions with you two. I want you both here 10 so that if you can't answer a question, that Dr. Orlob could 11 or you could conference discuss and try to explain what is 12 going on in that document. 13 C.O. STUBCHAER: Mr. O'Laughlin -- 14 MR. HILDEBRAND: My point there is not to go ahead with 15 Dr. Orlob this afternoon; put the whole thing off to Tuesday. 16 MR. O'LAUGHLIN: I have a lot of questions for Dr. 17 Orlob besides SJRIO. I could start those or we could come 18 back on Tuesday. I can finish both Mr. Hildebrand and Dr. 19 Orlob on Tuesday. 20 DR. ORLOB: I was expecting to be here on Tuesday for 21 that. 22 C.O. STUBCHAER: You said no point in killing 23 ourselves, but there is another saying, "No pain, no gain," 24 so let's go ahead. 25 MR. O'LAUGHLIN: Do what? CAPITOL REPORTERS (916) 923-5447 8658 1 C.O. STUBCHAER: Just continue with the panel till 2 about a quarter of one. 3 MR. O'LAUGHLIN: That is fine with me. 4 South Delta Water Agency Exhibit Number 12, Page Number 5 2. Now, on the third paragraph, do you have a copy with 6 you, Mr. Hildebrand and Dr. Orlob? 7 MR. HILDEBRAND: Yes. 8 DR. ORLOB: We have one to share. 9 MR. O'LAUGHLIN: It says: 10 The base case hydrology for the major east 11 side tributaries was based upon DWRSIM 12 Operation 468. A modification of DWRSIM 13 study performed to evaluate State Water 14 Resources Control Board Alternative Number 3, 15 Study 1. (Reading.) 16 See that? 17 MR. HILDEBRAND: Yes. 18 MR. O'LAUGHLIN: My understanding when we started out 19 here today that your proposal was generally based on flow 20 Alternative Number 2. So why was the modeling that was done 21 based on flow Alternative Number 3? 22 MR. HILDEBRAND: The problem was that the modeling that 23 had been done under this study, 468A, did indeed have some 24 of these assumptions in it that were unacceptable, as to 25 whether you would violate the standard. You had imaginary CAPITOL REPORTERS (916) 923-5447 8659 1 water or something; I don't remember specifically. It was 2 unacceptable as base case for what we wanted to do. 3 C.O. STUBCHAER: Mr. Nomellini. 4 MR. NOMELLINI: Just a second. I've got Mr. Zuckerman 5 on standby. It takes about an hour to get here. And in 6 view of this schedule, I just wanted to share my pain with 7 everybody as to whether to march him up here or not. I 8 expect that after we get to quarter to one we are going to 9 take a lunch break. Gets us to a quarter to two. 10 C.O. STUBCHAER: To shorten you, I would say no. 11 MR. NOMELLINI: Very good. I will bring him Tuesday. 12 C.O. STUBCHAER: Check on Tuesday. 13 MR. NOMELLINI: Six hours on Tuesday. I don't need to 14 bring him Tuesday. I will have him on standby. 15 C.O. STUBCHAER: Mr. Herrick. 16 MR. HERRICK: Excuse me for beating a dead horse. That 17 does mean that Dr. Orlob will leave when we break for lunch, 18 and he will not be back this afternoon? 19 C.O. STUBCHAER: Yes. Keep the panel intact. 20 Mr. O'Laughlin, you want to stand up again. 21 MR. O'LAUGHLIN: I know. 22 C.O. STUBCHAER: You have a bad back? 23 MR. O'LAUGHLIN: No. I have a bad leg. 24 C.O. STUBCHAER: You want to sit? 25 MR. O'LAUGHLIN: No. I will lean on the lectern. Poor CAPITOL REPORTERS (916) 923-5447 8660 1 posture, but it is better than the pain. 2 Let me ask that question of you, Dr. Orlob. What is 3 your understanding of why DWRSIM 468A was chosen instead of 4 the model run that was done for Alternative Number 2? 5 DR. ORLOB: As I recall, it was because the modeling 6 group had become very familiar with that particular run and 7 had the experience and were up and running with it, with the 8 model, and it was most convenient for them to use that as 9 the base for their simulation. 10 MR. O'LAUGHLIN: When it says "base case hydrology," 11 can you explain to me what is meant by that, Dr. Orlob? 12 DR. ORLOB: Well, I think that is -- this model run is 13 in what is called a Monte Carlo mode. It considers 14 characteristic runoff values for the basin based on 15 statistical analysis of the historic experience. And they 16 have set up an example that they refer to in hydrologic 17 terms as "a base case." So they can use that then to 18 compare any other modification in the system that would 19 appeal to special interest. 20 MR. O'LAUGHLIN: I just want to make sure we have an 21 understanding of what base case means. Base case to me 22 means the underlying assumptions and facts upon which we 23 will then do other tweaking to the model to tease out what 24 effects certain changes would have? 25 DR. ORLOB: That would be my interpretation; that is, a CAPITOL REPORTERS (916) 923-5447 8661 1 case against which you would make comparative analysis so 2 you can determine incrementally what might be the affect of 3 a particular alternative case than the base case. 4 MR. HILDEBRAND: If I could augment that. 5 MR. O'LAUGHLIN: Sure. You know what, I should just -- 6 excuse me for interrupting. At any time either one of you 7 -- if I ask a question and you would like to augment the 8 question in regard to this model, please feel free to do so. 9 I don't want to cut anybody off. 10 MR. HILDEBRAND: The base case assumes the FERC flows 11 in Tuolumne, the David Grunsky flows in the Merced. It 12 assumes a maximum of 1500 cfs release out of New Melones. 13 It assumes that the New Melones -- that the Vernalis 14 standard will be met at all times, and in the base case 15 assumes that that water would have to come out of New 16 Melones. 17 When we get to the chart, then, you will see that the 18 comparison arrived at is the amount of water it takes out of 19 New Melones to provide that compliance and without 20 recirculation or purchases and versus the situation where we 21 do recirculate. We do manage the drainage out of the 22 drainage area and then shows how much that would reduce the 23 burden on New Melones to provide -- to meet the Vernalis 24 standard. So we end up with a comparison then, what this 25 does dot burden on New Melones to meet that standard. CAPITOL REPORTERS (916) 923-5447 8662 1 MR. O'LAUGHLIN: One of the things I wanted to ask in 2 regards to the water, you said David Grunsky for the Merced 3 River. Did that also include the FERC flows on the Merced 4 River? 5 MR. HILDEBRAND: I think we -- I don't recall whether 6 at the time they were referred to as FERC flows. But 7 whatever the flow regime that required releases on the 8 Merced were at that time is what was used. 9 MR. O'LAUGHLIN: When you did this modeling run under 10 468, was this specifically only during the 31-day pulse flow 11 period from April 15th to May 15th? 12 MR. HILDEBRAND: No. But I would clarify that we used 13 468, but modified in the way I just described. 14 MR. O'LAUGHLIN: You had FERC flows, David Grunsky on 15 the Merced, 1500 cfs limitation on water coming out of New 16 Melones and water quality is met all times, and that water 17 initially would come from New Melones? 18 MR. HILDEBRAND: That's right. 19 C.O. STUBCHAER: Ms. Whitney. 20 MS. WHITNEY: I would like to clarify something. You 21 just stated you used 468, you modified it, but your written 22 testimony says you used 469. 23 MR. HILDEBRAND: That is the modification, yes. 24 MS. WHITNEY: So it is 469 rather than 468. 25 MR. HILDEBRAND: It was really 469 we used rather than CAPITOL REPORTERS (916) 923-5447 8663 1 468 because 468 did not conform to what I just described. 2 MS. WHITNEY: Thank you. 3 C.O. STUBCHAER: Thank you, Ms. Whitney. 4 MR. O'LAUGHLIN: Now, so rather than using 468A you 5 ultimately come up with using 469, the model? 6 MR. HILDEBRAND: Yes. 7 MR. O'LAUGHLIN: Do you know if 469, the model run 469, 8 DWRSIM -- let me go back. 9 Does DWRSIM Study 469 have imaginary water in it, Mr. 10 Hildebrand? 11 MR. HILDEBRAND: I think I answered that question. 469 12 does assume that the Vernalis standard will be met. It 13 indicates how much water would have to be released for that 14 purpose out of New Melones. I would assume, without 15 recalling directly and maybe Jerry would recall, that this 16 would indeed overburden New Melones, unless you cut back on 17 other things. We did not assume that you would provide all 18 the fish releases that were proposed for New Melones. And I 19 think we did include the fish releases acquired for the '87 20 Fish and Game agreement, did we not, Jerry? 21 DR. ORLOB: I am not sure, Alex. 22 MR. HILDEBRAND: It did not include any releases above 23 that. I am sure of that. Whether it went that high or 24 whether it included the original 98, I regret to say I don't 25 recall at this time. CAPITOL REPORTERS (916) 923-5447 8664 1 MR. O'LAUGHLIN: In regards to 469, my understanding is 2 that the standards are met in all times. And then what the 3 modelers did was just assume that some water would come from 4 upstream of the confluence of the Stanislaus and San Joaquin 5 River; is that correct? 6 MR. HILDEBRAND: In this case I think the base case 7 assumes that there would be enough water at New Melones. 8 MR. O'LAUGHLIN: Do you know if there was enough water 9 in New Melones under the base case? 10 MR. HILDEBRAND: That I am not sure of. It depends on 11 what fishery assumption was in there, and I just don't 12 remember what that was. 13 MR. O'LAUGHLIN: If either you or Dr. Orlob does not 14 know, should we contact somebody from DWR who did the Model 15 469 run and figure that one out? 16 MR. HILDEBRAND: Francis Chung would know the answer. 17 DR. ORLOB: That would be appropriate. 18 (Reporter changes paper.) 19 C.O. STUBCHAER: We are ready, Mr. O'Laughlin. 20 MR. HILDEBRAND: If I could just comment. 21 MR. O'LAUGHLIN: Sure. 22 MR. HILDEBRAND: Since our object was to look at the 23 differences, whether or not one fish flow or another was 24 incorporated there, it is not a vital issue although it is a 25 proper question. CAPITOL REPORTERS (916) 923-5447 8665 1 MR. O'LAUGHLIN: Let me see if I can refresh your 2 recollection. My understanding of DWRSIM Study 469 is that 3 if New Melones can't meet the requirements at Vernalis, that 4 the water comes out of New Don Pedro and Exchequer; is that 5 correct? Does that refresh your recollection? 6 MR. HILDEBRAND: That isn't what I recall. I think it 7 either assumed imaginary water in New Melones or upstream, 8 but I don't remember for sure. 9 MR. O'LAUGHLIN: Under the baseline -- let's get some 10 facts straight, so if we have to call a DWR modeler. 11 Now if 469 is the baseline and water is coming out of 12 New Don Pedro and Exchequer, that goes against what we 13 talked about in your proposal where the water should be made 14 available from New Melones; isn't that correct? 15 MR. HILDEBRAND: We assume New Melones only provides 16 the water in addition to what was provided under the FERC 17 flows, and so that the obligatory flows that already 18 existed. 19 MR. O'LAUGHLIN: I will shortcut this. In your paper 20 you don't want to see a water right holder against either 21 New Don Pedro and Exchequer to meet flows at Vernalis; is 22 that correct? 23 MR. HILDEBRAND: That's right. We are merely taking 24 advantage of those flows that are already required; that's 25 right. CAPITOL REPORTERS (916) 923-5447 8666 1 MR. O'LAUGHLIN: What happens in your -- if we come 2 back here, though, and find out that under your 469 study 3 that was done, that extra water was coming out of New Don 4 Pedro and Exchequer? Should we shift that on to New Melones 5 or some other CVP alternative that was discussed? 6 MR. HILDEBRAND: I would have to think about that, but 7 I don't think that is the case. 8 MR. O'LAUGHLIN: All right. 9 In the modeling that was done you said that you set the 10 available capacity below Goodwin Dam at 1,500 cfs; is that 11 correct? 12 MR. HILDEBRAND: That's right. 13 MR. O'LAUGHLIN: Why under 468A they didn't have a flow 14 limitation of 1,500 cfs below Goodwin Dam; is that correct? 15 MR. HILDEBRAND: I believe that is the case. 16 C.O. STUBCHAER: Mr. O'Laughlin, would you rather ask 17 the question of a DWR modeler? 18 MR. O'LAUGHLIN: Nope. Thank you very much, no, sorry. 19 Thank you for the offer. 20 MR. HERRICK: Reconsider that? 21 MR. O'LAUGHLIN: Running low on energy. I need another 22 coke. 23 Now in this 1,500 cfs at New Melones, when 469 is run, 24 does it assume that 1,500 cfs is coming out of New Melones 25 during the pulse flow period to meet the 1995 Water Quality CAPITOL REPORTERS (916) 923-5447 8667 1 Control Plan from April 15th to May 15th? 2 MR. HILDEBRAND: That's my recollection. 3 MR. O'LAUGHLIN: How is, then, that under your 4 recirculation proposal puts more water in New Melones during 5 the April/May pulse flow period than the San Joaquin 6 Agreement when they both operate with the 1,500 cfs flow 7 limitation? 8 MR. HILDEBRAND: I am not sure that we have agreed that 9 it did put more in. 10 MR. O'LAUGHLIN: What I am asking is that you say in 11 here, in your testimony, that your alternative is superior 12 because by -- let me find the page. 13 By doing this plan, the plan will decrease 14 the need for New Melones releases to meet the 15 Vernalis standard. (Reading.) 16 Page 4. 17 This makes more water available for other 18 uses including fishery flows. (Reading.) 19 MR. HILDEBRAND: Didn't relate to the pulse flow, 20 though. 21 MR. O'LAUGHLIN: Let me rephrase the question. If the 22 San Joaquin River Agreement calls for a 1,500 cfs flow 23 limitation at Goodwin and the recirculation proposal calls 24 for 1,500 cfs limitation at Goodwin, they are identical, 25 correct? CAPITOL REPORTERS (916) 923-5447 8668 1 MR. HILDEBRAND: That's correct, during the pulse flow. 2 MR. O'LAUGHLIN: During the pulse flow? 3 MR. HILDEBRAND: Yes. 4 MR. O'LAUGHLIN: Thank you. 5 Do you know under Study 469 what the difference between 6 the flows under 469 coming out of New Melones Reservoir are 7 as compared to the Interim Operations Plan for New Melones? 8 MR. HILDEBRAND: We do model the amount of water 9 required to come out of New Melones during the rest of the 10 year to meet water quality. 11 MR. O'LAUGHLIN: I am sorry, Alex, let me go back. I 12 want to focus in on the pulse flow period. 13 Under 469, did they model the Interim Operation Plan or 14 did they model trying to maximize the amount of water out of 15 New Melones to meet the 31-day pulse flow period? 16 MR. HILDEBRAND: As far as I know, the interim plan 17 also has that 1,500 limitation during the pulse flow. It 18 would be the same. 19 MR. O'LAUGHLIN: They are the same, but what I am 20 asking: in critically dry years under the New Melones 21 Interim Operation Plan when storage and inflow is low, the 22 Interim Operations Plan has less release for fisheries, 23 correct? 24 MR. HILDEBRAND: Yes. 25 MR. O'LAUGHLIN: So, what I am saying is if the Interim CAPITOL REPORTERS (916) 923-5447 8669 1 Operations Plan decreases the amount of flow during the 2 pulse flow period below 1,500 cfs, do you know if that is 3 the same or different in how Study 469 would handle flows 4 coming out of New Melones during the pulse flow. Do you 5 have an opinion on that, Dr. Orlob? 6 DR. ORLOB: No, I don't. I think I have to confess not 7 being fully prepared to discuss this. Since this modeling 8 was actually done by the Department, it certainly would be 9 appropriate to have the Department describe it in more 10 explicit detail than either -- certainly myself and perhaps 11 Alex are prepared to describe for you. That would produce a 12 better foundation for the kind of questions you are 13 asking. I haven't reviewed this document in preparation for 14 testimony here, and I certainly would have liked to be able 15 to do that to be able to be more responsive to your 16 question. 17 MR. O'LAUGHLIN: I am perfectly willing to do that 18 with the understanding that South Delta Water Agency 19 understands that if I do call a DWR witness and pass on 20 asking any more questions in regards to the SJRIO, that we 21 can assume that DWR is the expert in the field in regards to 22 how this model is put together. 23 DR. ORLOB: They are. 24 MR. O'LAUGHLIN: If you stipulate to that, I would be 25 happy to do that and call DWR modelers to answer all my CAPITOL REPORTERS (916) 923-5447 8670 1 questions. 2 Are you willing to do that, Mr. Hildebrand? 3 MR. HERRICK: If I may, I don't know if any stipulation 4 is necessary or recommended. If you'd like to call DWR 5 because the answers that the panel gives on the document 6 that SDWA has introduced are insufficient, that is fine. 7 MR. O'LAUGHLIN: No, because I don't want to get 8 sideways here. I am not going to get caught in the cross 9 fire where I call DWR people back in and then have Alex come 10 back in as a rebuttal witness and start taking on what DWR 11 did or didn't say. 12 If Alex is the person who is drawing his opinions and 13 conclusions from this document, I am entitled to know what 14 that is based on. If he wants to defer as to what this 15 report is about, I would be happy to do that. If his 16 opinions and conclusions are based on this report and his 17 understanding of what it means, then I need to go through it 18 with him. 19 MR. HERRICK: There is no argument. Feel free to go 20 through it with Alex. 21 MR. O'LAUGHLIN: I don't have a problem with that. I 22 have just heard from Dr. Orlob that he is clearly not ready 23 to talk about it. 24 Are you ready to talk about this report today, Alex? 25 MR. HILDEBRAND: I am willing to talk about it. I CAPITOL REPORTERS (916) 923-5447 8671 1 merely have to acknowledge that it has been some time since 2 this happened, and my memory isn't so good that I can 3 remember all the input details that I knew at that time. I 4 suspect that if you call somebody from DWR, they will have 5 to refresh their memory, too. 6 MR. HERRICK: I think Dr. Orlob's comment related to 7 the fact that the testimony he presented here didn't 8 reference the study. I happen to agree with that. 9 He happened to be involved in it, certainly, but that wasn't 10 why he was put here. But he certainly is available to 11 answer questions. 12 C.O. BROWN: Mr. Chairman, it would be helpful to me if 13 these gentlemen would address their questions, concerns, to 14 the Chair. 15 MR. HERRICK: I apologize. 16 MR. O'LAUGHLIN: Apologize. 17 MR. ORLOB: May I offer a suggestion? I would like to 18 discuss this with Alex and decide exactly what we should -- 19 how we should respond to the questions that are being posed. 20 I think it requires some background that we don't have 21 available to us or not fresh in our minds. 22 C.O. STUBCHAER: Why don't we take a seven-minute 23 stand-in-place break. 24 (Break taken.) 25 C.O. STUBCHAER: Come back to order. CAPITOL REPORTERS (916) 923-5447 8672 1 Back on the record. 2 MR. O'LAUGHLIN: I talked to counsel and the two 3 witnesses. I am going to skip the SJRIO for right now. 4 They will have a chance to look over it over the weekend. 5 If I have some follow-up questions on Tuesday, I will come 6 back Tuesday on that subject area, hopefully expedite it at 7 that time, and I will move to another subject area right 8 now. If we need to call further witnesses from DWR, we can 9 do that in the rebuttal phase. 10 C.O. STUBCHAER: Sounds like a good plan. 11 MR. O'LAUGHLIN: Mr. Hildebrand, let's go back into 12 your testimony. On Page 1, Item 3, there was some general 13 discussions this morning, and maybe you explained this in 14 greater detail yesterday. 15 Provides substantial protection for 16 downstream salmon smolt migration throughout 17 the migration period and not just the 31 18 days. (Reading.) 19 Now, the next clause says: 20 35 percent of the migration was alleged in 21 expert testimony before the State Water 22 Resources Control Board to occur before and 23 after the 31-day pulse flow. (Reading.) 24 Is it your understanding, then, by that statement that 25 65 percent of the salmon smolt out-migration occurs within CAPITOL REPORTERS (916) 923-5447 8673 1 the 31-day period? 2 MR. HILDEBRAND: That was the testimony of Dr. Thabault 3 and Loudermilk at that time. 4 MR. O'LAUGHLIN: Would it refresh your recollection at 5 all to say by the end of the 31-day pulse flow period 65 6 percent of the out-migration had occurred? 7 MR. HILDEBRAND: I don't think that is what they said. 8 MR. O'LAUGHLIN: Okay. 9 Now, how on this other 35 percent that doesn't occur 10 within the 31-day pulse flow period, let's look prior to 11 April 15th. How is it your plan will protect salmon smolt 12 out-migration on the San Joaquin River and its tributaries 13 prior to April 15th? 14 MR. HILDEBRAND: By having the three tidal barriers 15 operating at all times you cause those salmon smolts to 16 migrate either early or late, to go on down to the Central 17 Delta. And there is substantial evidence that, including 18 that provided by that panel, that this is beneficial to 19 fishery to cause them to go on down to the Stockton ship 20 channel and not go cross over to the pumps. 21 MR. O'LAUGHLIN: Under your proposal, then, we have to 22 have -- when you say "tidal barriers," are you including all 23 of the Head of Old River Barrier and all interior Delta 24 barriers? 25 MR. HILDEBRAND: I am including the three tidal CAPITOL REPORTERS (916) 923-5447 8674 1 barriers, not Head of Old River Barrier, which is not 2 allowed to be operated throughout the rest of this period of 3 time. 4 MR. O'LAUGHLIN: So, no Head of Old River Barrier in, 5 just the tidal barriers in. And we operate them during this 6 time period in what fashion? 7 MR. HILDEBRAND: We operate them such that they provide 8 a hydraulic barrier and cause nearly all the flow of salmon 9 in the river to go down to Stockton instead of having it 10 scoot through Old River and Grant Line and go right back 11 into the Federal pumps, the smolts. 12 MR. O'LAUGHLIN: Now, prior to April 15th, explain to 13 me -- you heard Dr. List testimony where he opined that the 14 majority of the water when it reaches the split at Old River 15 and the San Joaquin River goes down Old River. Do you 16 remember that testimony? 17 MR. HILDEBRAND: That is right. When the exports are 18 more than the flow of the river, it practically all goes 19 that way. 20 MR. O'LAUGHLIN: We don't have to agree on a specific 21 number, but most of the water or majority? 22 MR. HILDEBRAND: Yes. 23 MR. O'LAUGHLIN: So we are on March 15th. Water is 24 coming down the river. The Head of Old River Barrier is not 25 installed. How is it any salmon smolt are going with the CAPITOL REPORTERS (916) 923-5447 8675 1 flow or swimming -- and we've seen from the previous 2 testimony that a lot of the smolts go into Old River -- how 3 is that a tidal barrier protects those fish once they go 4 into Old River? 5 MR. HILDEBRAND: The tidal barrier blocks the flow into 6 Old River during ebb tide, and it lets it come into Old 7 River from the west side during the rising tide and actually 8 causes a net flow most of the time on out from the vicinity 9 of the intake of Federal pumps into the San Joaquin River 10 where it flows down to Stockton. It stops the reverse flow 11 that otherwise occurs from Stockton up to Old River, which 12 can bring fish from the Central Delta up and put them 13 through the pump. 14 MR. O'LAUGHLIN: I am confused about this. Let's say 15 there is 4,000 cfs coming down the San Joaquin River. Dr. 16 List testified that about 3,000 of that would go down the 17 Old River, correct? 18 MR. HILDEBRAND: That depends on what the export rate 19 is at that time. 20 MR. O'LAUGHLIN: Regardless of the export rate, Dr. 21 List testified that a majority of water would go down the 22 Old River. 23 MR. HILDEBRAND: A majority will, but whether it will 24 be 3,000 or 4,000 depends on whether you are exporting more 25 than the 4,000 flow. If you are, you are going to get a CAPITOL REPORTERS (916) 923-5447 8676 1 reverse flow in the San Joaquin, and all of the water coming 2 down the San Joaquin will go through there. 3 MR. O'LAUGHLIN: Leaving aside that. Let's just say a 4 majority of the water would go down Old River, and now we 5 have a tidal barrier. Where is the tidal barrier on Old 6 River? 7 MR. HILDEBRAND: The tidal barrier on Old River is a 8 short distance upstream of the intake of the Federal 9 pumps. There is another tidal barrier on Grant Line and a 10 third one on Middle River. 11 MR. O'LAUGHLIN: Do you have a pointer, Mr. Hildebrand? 12 Or I have one. 13 Can you point -- Mr. Herrick has been kind enough to 14 put a graph up on the board depicting the South Delta. 15 Can you point to me where the barrier, the tidal 16 barrier, would be for -- the tidal barrier -- 17 MR. HILDEBRAND: Three. 18 MR. O'LAUGHLIN: I am only concerned about the one on 19 Old River. 20 MR. HERRICK: Just for the record, that is SDWA 56. 21 MR. O'LAUGHLIN: Thank you. 22 MR. HERRICK: The map. 23 MR. HILDEBRAND: Putting any one of them in doesn't do 24 the job. You have to have all three. The one on Old River 25 would be right in here. The one on Grant Line will be CAPITOL REPORTERS (916) 923-5447 8677 1 here, and Middle River is up here. And the three of them 2 together prevent the San Joaquin River flow from coming down 3 here and going in this way and going back to the pumps or 4 instead they go back this way. 5 MR. O'LAUGHLIN: It is very difficult for the record 6 and the Court Reporter when you just say "here" and "there" 7 and "everywhere." 8 MR. HILDEBRAND: I agree. It does. 9 MR. O'LAUGHLIN: It doesn't describe specifically. 10 If I can see the pointer for just a second, I will ask 11 some specific questions. 12 If I understand correctly, then, you would put a 13 barrier in on Old River, a tidal barrier, somewhere near 14 Clifton Court Forebay, correct? 15 MR. HILDEBRAND: It's nearer to the Federal intake. 16 MR. O'LAUGHLIN: It is right here. 17 C.O. STUBCHAER: I have to say, I know we have -- 18 MR. O'LAUGHLIN: I'm sorry, it's getting late. 19 C.O. STUBCHAER: We have an exhibit in the record that 20 shows the tidal barriers. I don't remember the numbers. 21 MR. O'LAUGHLIN: That is fine. I will clean it up. I 22 have done this before. 23 Mr. Hildebrand, how far is it from the confluence of 24 the San Joaquin River and the Head of Old River Barrier to 25 where the tidal barrier is? CAPITOL REPORTERS (916) 923-5447 8678 1 MR. HILDEBRAND: Oh, a number of miles. I couldn't say 2 the specific exactly. 3 MR. O'LAUGHLIN: Under the hypothetical that I had, 4 it's March 15th there is 4,000 cfs coming down the river. 5 And just assume that 3,000 goes down Old River. Now within 6 the 3,000 cfs there is some salmon smolt that are trying to 7 migrate out. 8 Do you have that? 9 MR. HILDEBRAND: I have your hypothetical. 10 MR. O'LAUGHLIN: Now, how is that the tidal barrier at 11 Old River protects those salmon smolts? 12 MR. HILDEBRAND: I explained that you have to have all 13 three of the tidal barriers to protect them. One doesn't do 14 it. 15 MR. O'LAUGHLIN: What happens to those fish behind Old 16 River if -- my understanding of a tidal barrier is that 17 water is supposed to come in on the tide, and you trap it 18 behind it when the tide starts to ebb; is that correct? 19 MR. HILDEBRAND: That's correct. 20 MR. O'LAUGHLIN: So, in order for those fish that get 21 in Old River during the March 15th time period to get past 22 that tidal barrier, they would have to swim against the flow 23 of water coming through the tidal barrier? 24 MR. HILDEBRAND: Yes. There will be a flow over toward 25 the San Joaquin caused by the tidal barrier, and this CAPITOL REPORTERS (916) 923-5447 8679 1 creates a hydraulic barrier so the fish won't enter Old 2 River. 3 MR. O'LAUGHLIN: They don't enter -- are you saying 4 they don't enter Old River at all or that when they enter 5 Old River they get flushed back out toward the San Joaquin 6 River? 7 MR. HILDEBRAND: To a large degree, they don't enter at 8 all. If a few of them did, they would get flushed back 9 out. 10 MR. O'LAUGHLIN: Where can you point to in any of the 11 records in front of us that -- excuse me. 12 Where can you point to anywhere in the records in the 13 State Water Resources Control Board that installation of a 14 barrier, a tidal barrier, on Old River would foreclose 15 salmon smolts from entering Old River at the confluence of 16 the San Joaquin River? 17 MR. HILDEBRAND: We never said that a single barrier 18 would do it. I repeat, you have to have all three. 19 MR. O'LAUGHLIN: How is it that the other barriers -- 20 the next one is Grant Line; is that correct? 21 MR. HILDEBRAND: That's right. 22 MR. O'LAUGHLIN: How is that the barrier on Grant Line 23 keeps salmon smolts from entering Old River? 24 MR. HILDEBRAND: The three barriers together trap 25 enough water so that it creates a hydraulic barrier and no CAPITOL REPORTERS (916) 923-5447 8680 1 water from the San Joaquin then can flow into those 2 channels. And consequently, the fish don't flow into those 3 channels either. And particularly during that early season, 4 when our local diversion rates are low, you will almost 5 always have a net flow actually out into the main channel 6 from the Middle River, Old River and Grant Line, so that 7 you're even augmenting the flow going down the San Joaquin. 8 MR. O'LAUGHLIN: If I understand this correctly, then, 9 at the tidal barrier at Old River and the tidal barrier on 10 Grant Line, that basically you would create a pool behind 11 that to not allow any water or velocity to be moving in a 12 west to easterly direction? 13 MR. HILDEBRAND: That's right. But, again, you only 14 mentioned two barriers, and I repeat, I said three. 15 MR. HERRICK: Could I ask clarification. I think that 16 your statement said the barriers prevent west to east. 17 MR. O'LAUGHLIN: East to west. Thank you very much. 18 Let's get that clarified. 19 So the barriers, in your opinion, would create a 20 reservoir behind them, and in creating that reservoir behind 21 them, they would stop the flow of water from an east to 22 westerly direction in the South Delta? 23 MR. HILDEBRAND: That's correct. You must understand 24 this is a reservoir, a tidal reservoir. It is not like a 25 dam. CAPITOL REPORTERS (916) 923-5447 8681 1 MR. O'LAUGHLIN: Right. 2 Now, what happens, though -- does this work prior to 3 April 15th if the people within South Delta are diverting 4 water out of these channels? 5 MR. HILDEBRAND: The tidal barriers will trap 6 considerably more water than is diverted by the local 7 diversions. 8 MR. O'LAUGHLIN: But will we have a flow? Let's say 9 the tidal barriers trap water, but it is a drier year. 10 South Delta pumping earlier, taking water out. Are we still 11 going to have a barrier back in Old River, a hydraulic 12 barrier, or are we going to start seeing some flow from the 13 east to the west? 14 MR. HILDEBRAND: At that time of the year I think we 15 would always have a flow from the west to the east. But if 16 you get into July, June, July, early August, there would be 17 times when the amount of water we trap will not totally 18 supply the local diversions. So you would have a temporary, 19 modest level of inflow. Then they would flush back out 20 other times. 21 MR. O'LAUGHLIN: Is one of your -- if I could, we will 22 have to end right here because Mr. Hildebrand said he had to 23 leave. 24 With this no velocity or flow going in a direction, the 25 underlying assumption is that the fish are going to stay CAPITOL REPORTERS (916) 923-5447 8682 1 with the velocity or flow of water rather than going to the 2 pool? 3 MR. HILDEBRAND: It is our understanding that the 4 salmon experts indicate that the fish do indeed at that 5 stage flow largely with the flow, where you don't have a big 6 reverse tide taking place to confuse the issue. 7 MR. O'LAUGHLIN: This is as good as any place to stop, 8 Chairman Stubchaer, if you would like. 9 C.O. STUBCHAER: Thank you. 10 So this panel will return on Tuesday, the 19th, at 9:00 11 in the morning, and after lunch we will hear from DWR. 12 I would like to have a show of hands on who wants an 13 hour's lunch break versus who wants a 45-minute lunch break. 14 Who wants an hour, please raise your hand. 15 Who is in favor of 45 minutes? 16 The hour has it. 17 (Luncheon break.) 18 ---oOo--- 19 an't cross-examine. 3 MEMBER FORSTER: What does it mean if Mr. Brandt wasn't 4 ready? 5 MR. BRANDT: I am ready. I just -- 6 C.O. STUBCHAER: Doesn't have any. He has had his 7 chance. 8 MR. NOMELLINI: He is gone; he is out. 9 C.O. STUBCHAER: Yeah. He is a nice guy. 10 MR. NOMELLINI: He is a good man. 11 MR. BRANDT: Every time you say that -- 12 MR. NOMELLINI: Especially when he is waiving. 13 C.O. STUBCHAER: Okay, Mr. Nomellini. 14 ---oOo--- 15 CROSS-EXAMINATION OF THE DEPARTMENT OF WATER RESOURCES 16 BY CENTRAL DELTA PARTIES 17 BY MR. NOMELLINI 18 MR. NOMELLINI: For the record, Mr. Chairman, Members 19 of the Board, Dante John Nomellini for the Central Delta 20 parties. 21 Mr. Sandino, Mr. Russell. 22 Mr. Russell, I would like to try and get exactly clear 23 in the record what the Department's commitment is to the 24 backstop. And I understood from the opening statement that 25 it was kind of a joint backstopping with the Bureau and very CAPITOL REPORTERS (916) 923-5447 8695 1 broad, and then I understood from your testimony it may be 2 more narrow. 3 With regard to meeting the needs in the 1995 Water 4 Quality Control Plan, your testimony spoke to the need for 5 Delta outflow. And is it true that the Department is 6 willing to backstop whatever the requirement happens to be 7 for water from the San Joaquin River for the purpose of 8 Delta outflow? 9 MR. RUSSELL: Yes, with an explanation. The 10 explanation is that we would split between the Central 11 Valley Project and the State Water Project as appropriate 12 under the Coordinated Operations Agreement that portion that 13 would be required from the San Joaquin River. 14 MR. NOMELLINI: If water for Delta outflow was required 15 by the Board to come from the San Joaquin River, how would 16 the Department provide such water? 17 MR. RUSSELL: With respect to Delta outflow, we would 18 provide presumably releases from storage from Oroville, if 19 it were required to have that particular part of the outflow 20 requirement met. 21 MR. NOMELLINI: Perhaps you didn't hear my question. 22 If the Board required that the San Joaquin River 23 contribution to Delta outflow had to come from the San 24 Joaquin River, how would the Department provide its share of 25 that water? CAPITOL REPORTERS (916) 923-5447 8696 1 MR. RUSSELL: If it was explicitly from the San Joaquin 2 River, it is possible that the Department could exchange 3 water with the CVP, and they would provide that portion and 4 we would make it up to them through our joint use facility. 5 MR. NOMELLINI: How would you contemplate that that 6 water would get into the San Joaquin River? 7 MR. RUSSELL: I don't have an opinion on that. 8 MR. NOMELLINI: You made no study? 9 MR. RUSSELL: That's correct. 10 MR. NOMELLINI: You know anybody in the Department of 11 Water Resources that has made an analysis of the feasibility 12 of providing such water to the San Joaquin River by way of 13 this exchange that you talk about? 14 MR. RUSSELL: I do not. 15 MR. NOMELLINI: Is it true that the Department did not 16 make any analysis of how they would provide such water in 17 the event it was so required to come from the San Joaquin? 18 MR. RUSSELL: That is yes with an explanation. 19 MR. NOMELLINI: Go ahead. 20 MR. RUSSELL: Our understanding is that the water for 21 outflow is not associated with a particular source that the 22 outflow is water that needs to go by Chips Island, for 23 instance, that is independent of the source at that time. 24 Should the Board take future action that identifies 25 apportional shares from the different watersheds, that is a CAPITOL REPORTERS (916) 923-5447 8697 1 different story. 2 MR. NOMELLINI: So the assumption of the Department of 3 Water Resources in agreeing to backstop the Delta outflow 4 portion allocated to the San Joaquin River is that it could 5 be made up from flow from the Sacramento River? 6 MR. RUSSELL: That is our current position, yes. 7 MR. NOMELLINI: Do you know whether or not the 8 Department of Water Resources would attempt to qualify its 9 backstop with regard to Delta outflow if it knew that it had 10 to get the water from the San Joaquin River? 11 MR. RUSSELL: Would you repeat the question? 12 MR. NOMELLINI: Would the Department of Water Resources 13 qualify its commitment to backstop Delta outflow if it knew 14 that the San Joaquin River share of Delta outflow had to 15 come from the San Joaquin River? 16 MR. RUSSELL: I am going to ask for a little help. 17 What do you mean by "qualify"? 18 MR. NOMELLINI: Would you agree that the backstop is, 19 in effect, a guarantee? 20 MR. RUSSELL: Yes. 21 MR. NOMELLINI: Would you agree that a guarantee is 22 made based on certain assumptions? 23 MR. RUSSELL: Do you have a for instance? 24 MR. NOMELLINI: For instance, the assumption you stated 25 that the water for Delta outflow could be supplied from the CAPITOL REPORTERS (916) 923-5447 8698 1 Sacramento source? 2 MR. RUSSELL: In which case, yes. 3 MR. NOMELLINI: If that assumption was not correct, and 4 the water had to be provided from the San Joaquin River, 5 would the Department view that as a change such that they 6 would qualify or back away from their guarantee of their 7 share of the Delta outflow? 8 MR. RUSSELL: I don't know that at this time. I think 9 it would deserve some study. 10 MR. NOMELLINI: Let's take another element of the 11 backstop and let's focus on the Vernalis flow requirement. 12 Would you agree that the term "Vernalis flow requirement" is 13 the fish flow requirement? 14 MR. RUSSELL: No. 15 MR. NOMELLINI: Okay. 16 MR. RUSSELL: Let me qualify. In the Water Quality 17 Control Plan it may only be under the fish and wildlife 18 characterization. 19 Yes, I would consider it a fish and wildlife beneficial 20 use. 21 MR. NOMELLINI: All I am trying to do is make sure we 22 are using terms that we both understand. 23 With regard to the -- we have established one element 24 of the 1995 Water Quality Control Plan as the Delta outflow 25 element; is that correct? CAPITOL REPORTERS (916) 923-5447 8699 1 MR. RUSSELL: That's correct. 2 MR. NOMELLINI: We talked about that backstop to that 3 element, did we not? 4 MR. RUSSELL: That's correct. 5 MR. NOMELLINI: There is another element associated 6 with the San Joaquin River agreement, and that is a fish 7 flow requirement at Vernalis; is that correct? 8 MR. RUSSELL: That is my understanding, yes. 9 MR. NOMELLINI: Now, what is the Department of Water 10 Resources' guarantee or backstop with regard to the San 11 Joaquin River fish flow requirement? 12 MR. RUSSELL: We have none. 13 MR. NOMELLINI: And you had indicated in your testimony 14 that Bureau is going to make such a guarantee? 15 MR. RUSSELL: That is as it is spelled out in the San 16 Joaquin River Agreement, yes. 17 MR. NOMELLINI: Do you know how the Bureau intends to 18 meet its backstop obligation for San Joaquin River fish 19 flow? 20 MR. RUSSELL: No. 21 MR. NOMELLINI: Do you know whether or not the Bureau 22 has made a study as to how they would meet such a backstop 23 requirement for the fish flow? 24 MR. RUSSELL: I have not seen a study of that nature. 25 MR. NOMELLINI: Have you looked at the environmental CAPITOL REPORTERS (916) 923-5447 8700 1 document prepared by the Bureau with regard to the San 2 Joaquin River Agreement? 3 MR. RUSSELL: No, I have not. 4 MR. NOMELLINI: In your testimony you indicated that 5 impacts to Delta users should be addressed through the NEPA 6 and CEQA process? 7 MR. RUSSELL: That's correct. 8 MR. NOMELLINI: And how would you contemplate that such 9 impacts be addressed through the NEPA and CEQA process? 10 MR. RUSSELL: I can give you a for instance. The 11 opportunity to install South Delta barriers to offset water 12 level, potential water level, impacts, if any, would be a 13 measure. 14 MR. NOMELLINI: With regard to the other element in 15 the 1995 Water Quality Control Plan related to the San 16 Joaquin River, you had indicated there is a water quality 17 requirement at Vernalis; is that correct? 18 MR. RUSSELL: Yes, I have read that. 19 MR. NOMELLINI: With regard to the water quality 20 requirement at Vernalis, is the Department of Water 21 Resources backstopping any part of the obligation to 22 maintain water quality at the Vernalis? 23 MR. RUSSELL: No. 24 MR. NOMELLINI: Is the Bureau of Reclamation 25 backstopping the water quality requirement at Vernalis? CAPITOL REPORTERS (916) 923-5447 8701 1 MR. RUSSELL: I read in the San Joaquin River Agreement 2 that they are. 3 MR. NOMELLINI: Do you know how they intend to meet 4 this backstop obligation for water quality on the San 5 Joaquin River? 6 MR. RUSSELL: No. 7 MR. NOMELLINI: Now, if, in fact, the San Joaquin River 8 Agreement leaves unmet the water quality standards at 9 Vernalis, would the tidal barriers that you talked about 10 with regard to the NEPA/CEQA process in any way help meet 11 the water quality in the Vernalis? 12 MR. RUSSELL: Not that I know of. 13 MR. NOMELLINI: Does the Department of Water Resources 14 recognize a responsibility with regard to San Joaquin River 15 water quality? 16 MR. RUSSELL: No. 17 MR. NOMELLINI: Does the Department of Water Resources 18 recognize any responsibility with regard to flow in the San 19 Joaquin River? 20 MR. RUSSELL: No. 21 MR. NOMELLINI: Does the Department of Water Resources 22 transport water for the Bureau of Reclamation for delivery 23 to areas on the west side of the San Joaquin valley? 24 MR. RUSSELL: We wheel water for the Bureau; that is 25 correct. CAPITOL REPORTERS (916) 923-5447 8702 1 MR. NOMELLINI: Do you know where the water which you 2 wheel goes for the Bureau? 3 MR. RUSSELL: This is a difficult question because the 4 water gets often commingled in the San Luis Reservoir. I am 5 not sure where the molecules actually end up. 6 MR. NOMELLINI: Is it possible that any of the 7 molecules end up on lands on the west side of the San 8 Joaquin Valley? 9 MR. RUSSELL: Yes, it is possible. 10 MR. NOMELLINI: Is it possible that such molecules 11 could, in fact, combine with salt molecules and enter the 12 San Joaquin River? 13 MR. RUSSELL: It's possible. 14 MR. NOMELLINI: How much water on an annual average 15 does the Department wheel for the Bureau? 16 MR. RUSSELL: I can relate to the studies that went 17 into the Board's Draft Environmental Impact Report, and 18 nominally we are wheeling 125,000 acre-feet, cross valley 19 count, and other locations. 20 MR. NOMELLINI: They average about 128,000 acre-feet a 21 year? 22 MR. RUSSELL: Yes. I don't know if that is an average. 23 I think that is a maximum limit. I don't recall what the 24 average is. 25 MR. NOMELLINI: Do you know if any of the water CAPITOL REPORTERS (916) 923-5447 8703 1 molecules wheeled by the Department of Water Resources ends 2 up being served outside the permitted place of use of the 3 general permit? 4 MR. RUSSELL: I don't know. 5 MR. NOMELLINI: But it is possible, correct? 6 MR. RUSSELL: Yes, it is possible. 7 MR. NOMELLINI: Do you know whether or not the Bureau 8 would have to forego the export of the water that is wheeled 9 by the State Department of Water Resources were it not for 10 the actual wheeling by the Department? 11 Did I confuse you? 12 MR. RUSSELL: Restate the question. 13 MR. NOMELLINI: If the Department did not wheel the 14 water for the Bureau, let's assume it is 128,000 acre-feet 15 per annum on average, would the Bureau lose 128,000 16 acre-feet per annum on average? 17 MR. RUSSELL: I don't know what you mean by "lose." 18 They wouldn't deliver to contractors? 19 MR. NOMELLINI: Would they lose the export of 128,000? 20 MR. RUSSELL: Conceivably, yes. I am not sure that 21 they would. They would make their own determinations as to 22 where the water goes. 23 MR. NOMELLINI: There is an agreement between the 24 Department of Water Resources and the Bureau of Reclamation 25 for coordinated operation; is there not? CAPITOL REPORTERS (916) 923-5447 8704 1 MR. RUSSELL: That's correct. 2 MR. NOMELLINI: Is this wheeling done pursuant to that 3 coordinated operations agreement? 4 MR. RUSSELL: I believe there are separate agreements 5 with respect to wheeling. 6 MR. NOMELLINI: I asked you whether or not the 7 Department of Water Resources recognized any responsibility 8 for water quality or flow in the San Joaquin River, and you 9 answered that it did not; is that correct? 10 MR. RUSSELL: That is still true. 11 MR. NOMELLINI: Does the Department of Water Resources 12 recognize that it has any public trust responsibility with 13 regard to the San Joaquin River? 14 MR. RUSSELL: The public trust issues, I think, are 15 still being determined, so we don't have a position on that 16 at this time. 17 MR. NOMELLINI: So, you don't know whether or not the 18 Department would recognize the public trust responsibility 19 in the San Joaquin River; is that correct? 20 MR. RUSSELL: That's correct. 21 MR. NOMELLINI: Now going back to the 1995 Water 22 Quality Control Plan, we talked about outflow. We talked 23 about the San Joaquin River fish flow requirement. We 24 talked about the Vernalis water quality requirement. 25 Are you aware of the narrative standard for fish in the CAPITOL REPORTERS (916) 923-5447 8705 1 1995 Water Quality Control Plan? 2 MR. RUSSELL: Yes, I've read that. 3 MR. NOMELLINI: Does the Department of Water Resources 4 backstop include any guarantee by the Department for meeting 5 the narrative standard? 6 MR. RUSSELL: I don't believe we are backstopping the 7 narrative standard in the San Joaquin River upstream of 8 Vernalis. 9 MR. NOMELLINI: So downstream of the Vernalis there is 10 a question in your mind as to whether or not you are 11 backstopping the narrative standard? 12 MR. RUSSELL: I believe we are not at this time. 13 MR. NOMELLINI: Do you know whether or not the Bureau 14 is backstopping the obligation on the part of, I think you 15 categorized it as, settling and nonsettling San Joaquin 16 River parties? 17 MR. RUSSELL: It's my impression they are, but I would 18 encourage you to ask them directly. 19 MR. NOMELLINI: You don't know whether they are or not, 20 but you think they might be? 21 MR. RUSSELL: It is written in the San Joaquin River 22 Agreement that they would. At this time I think only the 23 letter of support has been signed. The actual agreement has 24 not been signed, so there is still some opportunities to 25 have a new position. CAPITOL REPORTERS (916) 923-5447 8706 1 MR. NOMELLINI: So if the agreement was signed as it 2 presently stands, it is your understanding that the Bureau 3 is backstopping what the San Joaquin River obligation is to 4 the narrative standard in the 1995 Water Quality Control 5 Plan? 6 MR. SANDINO: I am going to object. I think that was 7 asked and answered three questions ago. 8 C.O. STUBCHAER: I think it was. 9 MR. NOMELLINI: It was? I will read the transcript. 10 Does the Department of Water Resources intend to 11 contribute any part of the $48,000,000 that is required to 12 be paid to the San Joaquin River Agreement parties? 13 MR. RUSSELL: It is my understanding it is $4,000,000, 14 and of that 4,000,000 we were going to pay 1,000,000. 15 MR. NOMELLINI: Is it your understanding that the 16 Department is agreeing to pay that 1,000,000? 17 MR. RUSSELL: Yes, at this time. 18 MR. NOMELLINI: It's for a 12-year period? 19 MR. RUSSELL: That's correct. 20 MR. NOMELLINI: Where is the Department going to get 21 the money to make their payment? 22 MR. RUSSELL: I would like to refer to the San Joaquin 23 River Agreement, please. My version of the San Joaquin 24 River Agreement is that which I downloaded from the website, 25 and it is entitled "The Final Cleanup Version, March 19th, CAPITOL REPORTERS (916) 923-5447 8707 1 1998." I am on Page 7. 2 MR. NOMELLINI: Is that an exhibit? 3 MR. RUSSELL: I believe it is the San Joaquin River 4 Agreement Exhibit Number 2. 5 MR. GODWIN: That is correct. 6 MR. RUSSELL: Under Section 6 or Paragraph 6, 7 Obligations of DOI and the California Resource Agency 8 parties, 6.1, under "Payment": 9 Annual payment of $4,000,000; $3,000,000 from 10 the USBR to be paid from CVPIA restoration 11 funds or other sources as available and 12 $1,000,000 from the California Department of 13 Water Resources as part of its CVPIA cost 14 share or from other available sources, not 15 including funds derived from the State Water 16 Project contractor payments, escalated 17 annually, each January, to reflect the 18 CPI/IPU index shall be made by USBR to the 19 San Joaquin River Group Authority so long as 20 the SJRGA and its members perform under the 21 terms of this agreement. (Reading.) 22 Did that answer your question? 23 MR. NOMELLINI: I think so. Let me ask a couple 24 follow-up questions on that. 25 Is it true that the water project contractors, as such, CAPITOL REPORTERS (916) 923-5447 8708 1 will not be making such payment? 2 MR. RUSSELL: That is my understanding. 3 MR. NOMELLINI: Is it also true that it is the general 4 fund, basically, the State that is providing the money for 5 the DWR payment? 6 MR. RUSSELL: I don't know where the money exactly is 7 coming from. I don't know the answer to your question. 8 MR. NOMELLINI: What benefit does the general public 9 get in the payment of the $12,000,000 by the Department of 10 Water Resources? 11 MR. RUSSELL: I don't know. 12 MR. NOMELLINI: That is all I have. 13 Thank you. 14 C.O. STUBCHAER: Thank you, Mr. Nomellini. 15 Mr. Herrick, hello again. 16 ---oOo--- 17 CROSS-EXAMINATION OF THE DEPARTMENT OF WATER RESOURCES 18 BY SOUTH DELTA WATER AGENCY 19 BY MR. HERRICK 20 MR. HERRICK: Thank you, Mr. Chairman, Board Members. 21 John Herrick for the South Delta Water Agency. 22 Afternoon, Mr. Russell, how are you? 23 MR. RUSSELL: I am well. I hope you are. 24 MR. HERRICK: Thank you. 25 Mr. Nomellini obviously covered some of the areas I was CAPITOL REPORTERS (916) 923-5447 8709 1 going to. I hope this will be semi-brief. 2 I heard you say that the Department supports the San 3 Joaquin River Agreement and the VAMP project; is that 4 correct? 5 MR. RUSSELL: That's correct. 6 MR. HERRICK: Is it your understanding that the minimum 7 flows under the San Joaquin River Agreement are potentially 8 different than the minimum flows under the VAMP agreement? 9 MR. RUSSELL: Would you say that again, please? 10 MR. HERRICK: Is it your understanding that the minimum 11 flows under the San Joaquin River Agreement are different 12 than the minimum flows under the VAMP agreement? 13 MR. RUSSELL: Yes, I heard testimony to that effect. 14 MR. HERRICK: Does the Department have any position on 15 whether or not that difference affects fisheries? 16 MR. RUSSELL: I don't think we have an opinion on that 17 at this point. 18 MR. HERRICK: Does the Department have its own 19 biologists that advise it on matters such as this? 20 MR. RUSSELL: Yes, we do. 21 MR. HERRICK: Do you know whether there has been such a 22 consultation or advisement on this matter? 23 MR. RUSSELL: I have not spoken with them directly. I 24 don't know. 25 MR. HERRICK: Is it the Department's position by CAPITOL REPORTERS (916) 923-5447 8710 1 supporting the San Joaquin River Agreement that the flows in 2 the San Joaquin River Agreement provide, I will use the 3 word, adequate protection to fisheries? 4 MR. RUSSELL: It is my understanding that the flows 5 plus the other actions result in equivalent protection. 6 MR. HERRICK: What would those other actions be, 7 generally? 8 MR. RUSSELL: Presumably a barrier at Head of Old 9 River, controlled export rates. Potentially interior South 10 Delta barriers might protect fisheries in some respect. The 11 concept of flushing the salmon smolt down toward Stockton. 12 I think all these measures contribute to the equivalency. 13 MR. HERRICK: In the absence of the San Joaquin River 14 Agreement is it your understanding that the Head of Old 15 River Barrier would continue to be installed? 16 MR. RUSSELL: Depending on flow conditions, yes. 17 MR. HERRICK: Of course, those flow conditions also 18 determine whether or not it would be installed under the San 19 Joaquin River Agreement; is that true? 20 MR. RUSSELL: It is my understanding. 21 MR. HERRICK: Is it your understanding that current 22 biological opinions limit exports during the pulse flow to 23 the proposed limitations in the San Joaquin River Agreement? 24 MR. RUSSELL: That is my understanding. 25 MR. HERRICK: So, those protections that you mentioned CAPITOL REPORTERS (916) 923-5447 8711 1 are in existence with or without the San Joaquin River 2 Agreement? 3 MR. RUSSELL: Those specific ones would be. 4 MR. HERRICK: Back to the pulse flow amount. I am not 5 trying to test your knowledge on those specific amounts. Is 6 it the Department's opinion that the flows provided under 7 the San Joaquin River Agreement are as we discussed in 8 earlier phases comparable to the 1995 Water Quality Control 9 Plan for fish? 10 MR. RUSSELL: Again, the concept is taking all the 11 factors into consideration, yes. 12 MR. HERRICK: Now, is it the Department's opinion that 13 the flows being provided for the water quality which is -- 14 let me start over. 15 Is it the Department's opinion that the agricultural 16 objective under the 1995 plan is also being adequately 17 protected under the San Joaquin River Agreement? 18 MR. RUSSELL: I think it is recognized that the -- from 19 the modeling studies that there will be times, perhaps, when 20 the salinity objective would not be achieved at Vernalis. 21 MR. HERRICK: I am trying to make a comparison here. 22 The Department believes that the flows and other actions for 23 fish are adequate for the fishery objective; is that 24 correct? 25 MR. RUSSELL: Yes, I believe that is true. CAPITOL REPORTERS (916) 923-5447 8712 1 MR. HERRICK: I want to know whether or not the 2 Department believes the flows or other actions are adequate 3 for water protection at Vernalis? 4 MR. RUSSELL: I don't -- 5 MR. SANDINO: Do you understand the question? 6 MR. RUSSELL: I think I do, but I don't think I know 7 the answer. 8 MR. SANDINO: Maybe you could explain adequate, what 9 you mean by that. 10 MR. HERRICK: Let me start over again. 11 I believe you agreed that the flows provided by the San 12 Joaquin River Agreement are different than the VAMP flows; 13 is that correct? 14 MR. RUSSELL: That's correct. 15 MR. HERRICK: Under certain circumstances they are less 16 than the Vamp flows; is that correct? 17 MR. RUSSELL: Yes. 18 MR. HERRICK: The VAMP flows as well as the San Joaquin 19 River Agreement flows are both less than the flows specified 20 in the 1995 Water Quality Control Plan, correct? 21 MR. RUSSELL: I don't know. I have seen the 22 difference, but as we sit here today I don't know where they 23 separate. I know that there is a single step and a double 24 step in the VAMP program and/or the San Joaquin River 25 Agreement, and there is a flow -- year-type-specific flows CAPITOL REPORTERS (916) 923-5447 8713 1 in the Water Quality Control Plan. I understand there are 2 some differences, but I don't have the table of comparisons 3 in front of me. I have not developed one. 4 MR. HERRICK: I don't want you to say something you are 5 not comfortable with. 6 Were you present for Phase II? 7 MR. RUSSELL: I was. 8 MR. HERRICK: Would it be correct to say that the 9 thrust of that phase was to determine whether or not -- 10 whether the issues put forth in that phase was to determine 11 whether or not the San Joaquin River flows were comparable 12 to the 1995 Water Quality Control Plan flows? 13 MR. RUSSELL: I recall that testimony. 14 MR. HERRICK: I am trying to determine whether DWR 15 believes that the San Joaquin River flows, then, in its 16 opinion are either comparable or adequate or good enough to 17 protect the fisheries even though they may be different than 18 the 1995 Water Quality Control Plan. 19 MR. RUSSELL: I believe we felt they were adequate, 20 yes. 21 MR. HERRICK: I want to move on, based on that opinion 22 to the same comparison with water quality at Vernalis, the 23 agricultural objective. I believe you said that the 24 modeling indicates that unless other actions may be taken, 25 the modeling indicates that the flows provided under the CAPITOL REPORTERS (916) 923-5447 8714 1 San Joaquin River Agreement do not always meet the water 2 quality flows needed at Vernalis? 3 MR. RUSSELL: That is my recollection, yes. I do not 4 do the modeling studies. 5 MR. HERRICK: Is it the Department's, then, conclusion 6 that operations under the San Joaquin River Agreement 7 adequately address fishery concerns, but do they adequately 8 address water quality concerns? 9 MR. RUSSELL: I believe it is recognized it wouldn't 10 meet the water quality objectives in the Water Quality 11 Control Plan; that's correct. 12 MR. HERRICK: Is there a reason why the Department 13 reaches that conclusion, which is this is good -- the 14 program provides sufficient amount and actions for fisheries 15 but does not provide such amount or actions for water 16 quality? 17 MR. RUSSELL: I don't have a firm answer. While I 18 recognize that the San Joaquin River Agreement is a 19 settlement agreement, so that there was a, from the 20 Department's point of view, there is more water entering the 21 system than might otherwise, or that there would be water 22 from the sources other than the State Water Project, 23 self-storage advantage, to go forward with the settlement. 24 So with respect to water quality at Vernalis, all I can say 25 is that I recognize from the testimony that has been CAPITOL REPORTERS (916) 923-5447 8715 1 presented that it may not meet the water quality objectives 2 of the Water Quality Control Plan in all years. 3 MR. HERRICK: Is that acceptable to the Department of 4 Water Resources that the Board adopt a program that does not 5 meet the water quality objectives in all years? 6 MR. RUSSELL: I think at this time, yes. 7 MR. HERRICK: You discussed settlement. Who are 8 talking about settling? And the second question, what are 9 they settling? 10 MR. RUSSELL: The settlement that we have spoke to is 11 the San Joaquin River Agreement, which has an appendix, the 12 Vernalis Adaptive Management Program, to study the flow and 13 the fishery responses and other issues that we talked about. 14 And parties that are settling are identified, have been 15 identified by the San Joaquin River Group, and the 16 Department of Water Resources is one of those parties that 17 signed a letter of support, and we are waiting for the 18 environmental document to be completed. 19 MR. HERRICK: Do you know what interests or entities 20 enjoy the benefit of the Vernalis water quality standard? 21 MR. RUSSELL: It is my recollection that people 22 downstream of the location, Airport Way, would be those that 23 would have an assured water quality coming into the southern 24 end of the Delta, flowing northward. 25 MR. HERRICK: Were those parties part of the CAPITOL REPORTERS (916) 923-5447 8716 1 negotiations for the San Joaquin River Agreement? 2 MR. RUSSELL: I don't know. I was not part of the 3 negotiation. I was not part of that negotiation. I was not 4 present. 5 MR. HERRICK: Do you know whether or not the Department 6 -- that is all right. 7 I noticed from your testimony, and whether you are 8 quoting or almost quoting the San Joaquin River Agreement, 9 you talk about VAMP recognizing that the South Delta flow 10 controllers may be necessary to mitigate the impacts on 11 agricultural users caused by the Head of Old River Barrier. 12 Do you recall that? 13 MR. RUSSELL: Yes, I do. 14 MR. HERRICK: Can I ask why you use the word "may"? 15 MR. RUSSELL: There are times in the flow history for 16 the San Joaquin watershed there is sufficient water comes 17 down there, and it may not be necessary to put barriers in 18 the South Delta channels, either through the pulse flow 19 period or other periods. 20 MR. HERRICK: I want for the moment limit that to the 21 existence of Head of Old River Barrier, which is part of 22 your sentence here that I read. 23 Is there -- it's on Page 1 of your testimony in 24 Paragraph 2, just about the middle of the page. 25 MR. RUSSELL: It's my recollection, as an operational CAPITOL REPORTERS (916) 923-5447 8717 1 constraint, that if the flow approaches 7,000 cubic feet per 2 second in the San Joaquin River, that it would be difficult 3 to install the Old River Head Barrier, at least the rock 4 barrier that has been put in in recent years. 5 Does that answer your question? 6 MR. HERRICK: No. Let me rephrase. 7 Is there any doubt on the part of the Department of 8 Water Resources that installation of the Head of Old River 9 Barrier affects the amount of water needed downstream of 10 that barrier? 11 MR. RUSSELL: None that I am aware of. It does affect 12 the water downstream. Absent the barrier, there would be 13 split going down Old River. So installation of the barrier 14 then would shunt more water toward Stockton, more go down 15 the San Joaquin. 16 MR. HERRICK: With the barrier, generally, can you say 17 or would you say there is less water downstream when the 18 barrier is in existence, the Head of Old River Barrier? 19 MR. RUSSELL: Less water downstream of -- 20 MR. HERRICK: The Head of Old River Barrier. Does the 21 barrier prevent water from going beyond it? 22 MR. RUSSELL: Not on the San Joaquin, only on Old River. 23 MR. HERRICK: I don't think I said San Joaquin, but 24 what I am asking you is -- 25 C.O. STUBCHAER: But it wasn't clear; you didn't CAPITOL REPORTERS (916) 923-5447 8718 1 specify which channel. That is the source of the 2 confusion. 3 MR. HERRICK: I'm sorry. When I say downstream of Head 4 of Old River Barrier, that is downstream on Middle River, 5 isn't it, and Old River? 6 MR. RUSSELL: The barrier goes in Old River. So 7 downstream of that would be going westward, towards Middle 8 River, then splits and the water can go down Grant Line and 9 over Salmon Slough and down over Old River, that direction. 10 MR. HERRICK: My question is: When the Head of Old 11 River Barrier is installed, doesn't that affect the amount 12 of the water downstream of barrier? 13 MR. RUSSELL: Yes, it does. That is the intention of 14 putting the barrier in. 15 MR. HERRICK: The effect is less water downstream? 16 MR. RUSSELL: That's correct. 17 MR. HERRICK: Sometimes that results in lower water 18 levels than if the barrier were not there? 19 MR. RUSSELL: That is also potentially correct. 20 MR. HERRICK: Would you agree that we have seen in some 21 years that that has adversely affected the ability of 22 agricultural diverters? 23 MR. RUSSELL: I have heard testimony to that effect. 24 MR. HERRICK: Do you recall the testimony that showed 25 pictures when portions of Old River and Middle River were CAPITOL REPORTERS (916) 923-5447 8719 1 almost dry? 2 MR. RUSSELL: I do not recall seeing those pictures. 3 MR. HERRICK: I am just trying to clarify the 4 Department of Water Resources doesn't have any doubt that 5 under certain circumstances the Head of Old River Barrier 6 adversely affects diverters downstream of the barrier? 7 MR. RUSSELL: I think there would be circumstances 8 where that would be true, yes. 9 MR. HERRICK: I am just trying to find out why you 10 support something that says it "may" be necessary to 11 mitigate the impacts on those people instead of "shall" or 12 "will" or "must." 13 MR. RUSSELL: Further on in my testimony we talk about 14 the mitigation and should be done through the CEQA/NEPA 15 process. If there is other means to effect the mitigation, 16 I don't know what they are as I sit here, there may be other 17 means through that process. Then maybe the Old River Head 18 barrier would be needed to mitigate or not. 19 MR. HERRICK: But to accomplish what you just said, 20 wouldn't it have to say something like "shall mitigate the 21 effects whether it is the tidal barriers or not"? 22 MR. SANDINO: I think you might be confusing this a 23 little bit. I think part of the testimony you are quoting 24 is testimony relating to the agreement itself, rather than 25 what DWR has testified to in the past to the barriers. CAPITOL REPORTERS (916) 923-5447 8720 1 Where are you quoting from? From the testimony, 2 start here. 3 MR. HERRICK: Right. 4 MR. SANDINO: It is talking about the agreement 5 itself. 6 MR. RUSSELL: The agreement language was worked out 7 before I had any input. Actually, I have no input into the 8 agreement language itself. I would have to take it at face 9 value. Why they put that in there, I am unaware of why they 10 put may in or shall or whatever. 11 Does that help? 12 MR. HERRICK: Well, it doesn't change the agreement. 13 But DWR is part of the Interim South Delta Program; is it 14 not? 15 MR. RUSSELL: That's correct. 16 MR. HERRICK: Through that program they have examined 17 what methods of addressing the water quantity and level 18 problems in the South Delta? 19 MR. RUSSELL: Yes, we have. 20 MR. HERRICK: The parties to that include, not only the 21 DWR, but the South Delta Water Agency? 22 MR. RUSSELL: That's correct. 23 MR. HERRICK: And the other party is the Bureau of 24 Reclamation? 25 MR. RUSSELL: That's correct. CAPITOL REPORTERS (916) 923-5447 8721 1 MR. HERRICK: Pursuant to those discussions, they have 2 developed a draft agreement to set forth the resolution of 3 those issues? 4 MR. RUSSELL: That's correct. 5 MR. HERRICK: That agreement includes, among other 6 things, the installation and operation of tidal barriers? 7 MR. RUSSELL: That's correct. 8 MR. HERRICK: It is my understanding that DWR is ready 9 to sign the agreement? 10 MR. RUSSELL: Best of my knowledge, we are. 11 MR. HERRICK: Do you know what the status of that 12 agreement is with the Bureau? 13 MR. RUSSELL: I do not. 14 MR. HERRICK: Again, I am just trying to make it clear 15 on the record, is it DWR's opinion that the South Delta 16 tidal barriers are necessary or an option or something else? 17 MR. RUSSELL: We believe they are necessary. 18 MR. HERRICK: So, if there was a program that proceeded 19 with the Head of Old River Barrier but without the tidal 20 barriers, would DWR oppose that? 21 MR. RUSSELL: I believe our viewpoint at this point, 22 that if you installed the Old River Head Barrier, that you 23 would need interior ag barriers as mitigation for the Old 24 River Head Barrier. 25 MR. HERRICK: Mr. Russell, I believe you said in answer CAPITOL REPORTERS (916) 923-5447 8722 1 to a question by Mr. Nomellini that you hadn't reviewed the 2 draft environmental document submitted by the Bureau for the 3 San Joaquin River Agreement? 4 MR. RUSSELL: That's correct. 5 MR. HERRICK: Given that, I still want to ask you: Do 6 you know whether or not the analysis in that agreement 7 addresses the effects of the San Joaquin River Agreement on 8 the channel depletion needs of the South Delta? 9 MR. RUSSELL: I have no knowledge of that. 10 MR. HERRICK: Is it possible that -- is it possible 11 that one of the effects of the San Joaquin River Agreement 12 is a decrease in the amount of water available to satisfy 13 channel depletion needs in the South Delta? 14 MR. RUSSELL: I suspect it is possible. I have no 15 knowledge. 16 MR. HERRICK: I am not trying to pin you down whether 17 it is likely or unlikely something that could occur if you 18 change flows upstream. 19 MR. RUSSELL: I think of the South Delta channels as 20 being primarily tidal driven, so the water levels are 21 fundamentally a result of the tidal action and only in cases 22 of high runoff would you see water levels higher in the 23 South Delta channels as a function of the flood flows. Most 24 of the water levels that you see are a direct result of the 25 tidal action and multiple activities. CAPITOL REPORTERS (916) 923-5447 8723 1 MR. HERRICK: If the tidal action and local activities 2 decrease those channel levels to a low point, the amount of 3 water available for diversion becomes directly proportional 4 -- directly related to the amount coming down the 5 Sacramento, correct? 6 MR. RUSSELL: I don't agree with that. 7 MR. HERRICK: Would be the source of water in Old River 8 without the barriers and the normal pumping operations? 9 MR. RUSSELL: Normal pumping operation, we have the 10 Delta filling and draining to the tidal cycle. And, so, 11 again, as I mentioned a minute ago, the water in the Delta 12 is primarily a result of the water levels, are primarily 13 result of the tidal influxes. 14 MR. HERRICK: Are there any null zones or stagnant 15 reaches -- do any null zones or stagnant reaches occur as a 16 result of export operations? 17 MR. RUSSELL: As a result of export operations? I would 18 think probably not null zones as a result of exclusively 19 export operations. I would expect that the null zones occur 20 as a result of local channel depletions and returns that 21 tidal barriers result. 22 MR. HERRICK: Are you familiar with the data produced 23 in South Delta, DWR and USBR's negotiations that led to that 24 draft contract referred to earlier? 25 MR. RUSSELL: To some degree, yes. In my earlier work CAPITOL REPORTERS (916) 923-5447 8724 1 with the Department of Water Resources I was the chair for 2 the Technical Advisory Committee for the South Delta 3 studies. 4 MR. HERRICK: Is it your conclusion that the tidal 5 barriers are not meant to address null zones created by the 6 operation of the export -- 7 MR. RUSSELL: I think they do. Yes, they do. 8 C.O. STUBCHAER: Mr. Herrick, how much more do you 9 have? 10 MR. HERRICK: Does that mean you want to take a break? 11 C.O. STUBCHAER: A break. 12 MR. HERRICK: I probably have 15 minutes. 13 C.O. STUBCHAER: Let's take a ten-minute break, short 14 break. We are doing it now because the coffee shop closes 15 real soon. 16 Mr. Birmingham. 17 MR. BIRMINGHAM: Mr. Stubchaer, I was not present when 18 Mr. Russell concluded his direct examination. I wonder if I 19 could be added somewhere randomly in the remaining 20 cross-examiners? 21 C.O. STUBCHAER: You can be next. 22 (Break taken.) 23 C.O. STUBCHAER: Let's reconvene. 24 Okay, Mr. Herrick. 25 MR. HERRICK: Thank you, Mr. Chairman. CAPITOL REPORTERS (916) 923-5447 8725 1 Mr. Russell, I want -- I am not clear from the San 2 Joaquin River Agreement about a couple of things about the 3 backstop. I am not going to belabor it because it has 4 already been covered. But it is my understanding that 5 because of the backstop, or maybe not because of the 6 backstop, offered by the Bureau and the DWR that the San 7 Joaquin River Group Authority parties there are then 8 insulated from further responsibility from what is being 9 backstopped; is that correct? 10 MR. RUSSELL: That is a little vague. Can I ask you to 11 be a little more definitive on your question? 12 MR. HERRICK: Let me start in a different direction. 13 The agreement provides that providing target flows is the 14 sole obligation of the San Joaquin River Group Authority 15 members; is that correct? 16 MR. RUSSELL: That is my understanding, yes. 17 MR. HERRICK: Is the sole obligation of the those flows 18 put in the definition of the San Joaquin River portion? 19 MR. RUSSELL: Yes. 20 MR. HERRICK: The definition of the San Joaquin River 21 portion does not include the narrative standard to double 22 the anadromous fish populations, as I read the agreement; is 23 that correct? 24 MR. RUSSELL: Could you refer me to the agreement? 25 MR. HERRICK: 3.4. CAPITOL REPORTERS (916) 923-5447 8726 1 MR. RUSSELL: I am reading from the San Joaquin River 2 Agreement on Page 5 under Section 3.4. It states: 3 The San Joaquin portion, segments of the 1995 4 Water Quality Control Plan relating to flow 5 at Vernalis, specifically river flows of the 6 San Joaquin River, Airport Way, Vernalis, 7 Page 19; San Joaquin River salinity, Page 18; 8 southern Delta, San Joaquin River Airport 9 Bridge, Vernalis; and four, the San Joaquin 10 River Basin share of all Delta outflow 11 objectives. (Reading.) 12 MR. HERRICK: Is it DWR's understanding, based on that 13 definition, that if additional flow measures were required 14 in the future to meet the doubling standard, that the San 15 Joaquin River Group Authority parties are not insulated from 16 that? 17 MR. RUSSELL: I think that is a correct statement. 18 MR. HERRICK: Are you familiar with the Water Code 19 Division that is entitled the Delta Protection Act? 20 MR. RUSSELL: Let me say no. 21 MR. HERRICK: Are you generally aware of the Delta 22 Protection Act? 23 MR. RUSSELL: I am generally aware of it. 24 MR. HERRICK: Would you agree that one of the statutes 25 thereunder requires the State and the federal projects to CAPITOL REPORTERS (916) 923-5447 8727 1 meet certain salinity intrusion obligations? 2 MR. BRANDT: Objection. Calls for a legal conclusion. 3 C.O. STUBCHAER: The question was, is he aware of it. 4 I think he can answer it. 5 MR. RUSSELL: I have not read the statute, so I am 6 going to say I am not aware of it, explicitly. 7 MR. HERRICK: If you are not aware of it, I won't go 8 any farther except to ask: Is DWR undertaking any actions 9 that you are aware of to comply with its obligation under 10 the Delta Protection Act? 11 MR. RUSSELL: I am not aware of anything that has been 12 called out explicitly to do that activity, other than what I 13 might say is normal operations where we abide by the laws of 14 the State of California and federal laws and ESA and those 15 kinds of things. We conduct our business in a lawful way. 16 MR. HERRICK: Let me just ask you a follow-up to that. 17 I don't want to stay on the subject if you are not too 18 familiar with it. 19 Do you recall whether or not one of the obligations 20 under the Delta Protection Act is to ensure that the 21 beneficial users within the Delta are supplied with their 22 full amount of water? 23 MR. RUSSELL: Again, I haven't read it, so I don't 24 know. 25 MR. HERRICK: Mr. Nomellini did ask you questions about CAPITOL REPORTERS (916) 923-5447 8728 1 the backstopping. Let me just ask a couple further ones. 2 I read Section 10.1.1 to say that the Bureau is 3 assuming responsibility for the San Joaquin River portion of 4 the 1995 Water Quality Control Plan objectives that can 5 reasonably be met through flow measures. Do you see where 6 it says that in the first sentence of 10.1.1? 7 MR. RUSSELL: Yes, I see that. 8 MR. HERRICK: What is the Department of Water 9 Resources' understanding of the terms "reasonably be met"? 10 MR. RUSSELL: Probably important to understand that the 11 settlement agreement was intended to speak to the fisheries' 12 flow issue, primarily. And as far as the Department's 13 position, reasonably met, that is available water supply. 14 MR. HERRICK: That sentence talks about the San Joaquin 15 River portion. I believe that is defined to include the 16 water quality objective at Vernalis. 17 Would you agree with that? 18 MR. RUSSELL: From what you just said. 19 MR. HERRICK: I want to go back to the same question. 20 What is the Department's understanding with regard to those 21 terms "reasonably to be met"? 22 MR. RUSSELL: I believe every reasonable effort to 23 operate their projects so they can meet the salinity 24 objectives, given the hydrology they have to work with it. 25 MR. HERRICK: Is the Department's position then that CAPITOL REPORTERS (916) 923-5447 8729 1 the interim -- are you familiar with the Interim Operation 2 Plan of New Melones that the Bureau has adopted? 3 MR. RUSSELL: I have not read that. 4 MR. HERRICK: Do you understand they have adopted an 5 Interim Operation Plan? 6 MR. RUSSELL: I heard testimony to that, yes. 7 MR. HERRICK: You understand that operation is one of 8 the underlying assumptions for the San Joaquin River 9 Agreement? 10 MR. RUSSELL: I believe that is true, yes. 11 MR. HERRICK: Has the Department examined other 12 potential operations of New Melones? 13 MR. RUSSELL: I have not. 14 MR. HERRICK: Do you know whether or not there are 15 other reasonable operations of New Melones which may enable 16 the water quality standard to be met more often than is 17 anticipated by the current modeling for that plan? 18 MR. RUSSELL: This is a hypothetical case, of course, 19 and so from here I can say that if you tell me that water 20 quality was the only objective of operating the CVP system 21 in the San Joaquin, perhaps they can do that, given they had 22 enough water to do it. 23 MR. HERRICK: I think we established in my earlier 24 questions that the Department believes the operations under 25 the San Joaquin River Agreement are adequate for fisheries, CAPITOL REPORTERS (916) 923-5447 8730 1 but may not be adequate for water quality; is that correct? 2 MR. RUSSELL: That is potentially true, yes. 3 MR. HERRICK: We don't necessarily have to speculate on 4 the method of operation operating New Melones that favors 5 water quality. How about one that treats shortages for 6 water quality and for fisheries the same? 7 MR. RUSSELL: Again, this would be an operational 8 decision up to the Bureau. From the Department's point of 9 view, I believe we defer to the Bureau to operate their 10 projects as they see fit. From our position it is part of 11 the San Joaquin River Agreement. We'd expect them to do it 12 the best they can. 13 MR. HERRICK: The Department believes at this time by 14 endorsing the San Joaquin River Agreement that the current 15 operations are reasonable? 16 MR. SANDINO: Is that a question? That wasn't his 17 testimony. 18 MR. RUSSELL: I would say I don't know because I really 19 don't know how we are interpreting that specific provision. 20 As I sit here today, I really don't know that answer. 21 MR. HERRICK: The Department has done no investigation 22 on its own whether or not the Interim Operation Plan is 23 reasonable? 24 MR. RUSSELL: I can't say that we haven't. I am 25 unaware of it, though, an explicit study that investigated CAPITOL REPORTERS (916) 923-5447 8731 1 that. It is my understanding that we have staff that attend 2 meetings associated with those activities. Again, I am not 3 directly involved in that. 4 MR. HERRICK: Without being overly picky, I apologize, 5 Section 10.1.2, it does state: 6 As appropriate, DWR shall assume certain 7 responsibilities. (Reading.) 8 I was wondering why the agreement would say 9 "appropriate" rather than specify, as you did, how it would 10 be divided up under the operating agreement? 11 MR. RUSSELL: I don't know the answer. 12 MR. HERRICK: When you were talking about satisfying 13 Delta outflow requirements pursuant to the operating 14 agreement, were you talking about dividing up the San 15 Joaquin River share or dividing up the total outflow share? 16 MR. RUSSELL: I don't know that we've actually come to 17 a decision exactly how it is going to be done. If we can 18 use today's method as a reasonable way, we take the 19 requirement and we apportion 75 percent to the CVP system 20 and 25 percent to the State Water Project as per the 21 coordinated operations agreement. 22 MR. HERRICK: I don't just understand how that works. 23 If you don't mind, let's say under the San Joaquin River 24 Agreement it is determined that the Delta outflow won't be 25 met in some immediate future time. So you are going through CAPITOL REPORTERS (916) 923-5447 8732 1 this process to determine what should be done. 2 MR. RUSSELL: My reflection is we will meet the outflow 3 requirements. In so doing, we would determine what was 4 required to our best calculation on that, and I would expect 5 the project operators -- I am not a project operator -- 6 would confer and then they would make a decision on how to 7 split the releases. There may be some tradeoffs on releases 8 where we may provide a little bit more now for some water 9 that is being released from Shasta, and it takes a long time 10 to get down to the Delta. It may be some near realtime 11 operation decision or there may be more of a planning type 12 of decision where you may get a month allocation or expected 13 month allocation. 14 MR. HERRICK: We are in position, hypothetically, under 15 the San Joaquin River Agreement's operation where you are 16 forecasting what needs to be done in the future and not that 17 you are violating. I am trying to get a question. 18 MR. RUSSELL: Go ahead. 19 MR. HERRICK: The forecast shows that a share of the 20 San Joaquin River is being provided, but that some, which 21 would normally be attributed to -- a share of the Sacramento 22 River is being provided, San Joaquin River isn't. I just 23 want to make sure that DWR's backstop is going to provide 24 some of the San Joaquin River share or do you say we've 25 already met our share for the Sacramento River? CAPITOL REPORTERS (916) 923-5447 8733 1 MR. RUSSELL: We would provide the appropriate amount 2 of water that would backstop the San Joaquin River 3 watershed's contribution to Delta outflow. 4 MR. HERRICK: If I may just look at my notes real 5 quickly without delaying too much, Mr. Chairman. 6 Mr. Russell, does the water quality at Vernalis affect 7 the water quality at your export pumps? 8 MR. RUSSELL: I would expect to some degree there is a 9 leakage of the water quality. I don't know that it's been 10 dominant water quality consideration for export pumping. It 11 is my recollection that in doing model studies of the Delta 12 and various export rates for the State Water Project and the 13 Central Valley Project, most of the water satisfies the 14 intake into Clifton Court from Old and Middle River. So to 15 the extent the San Joaquin River from some period back in 16 time, let's say ten days normally, or something, would have 17 worked its way down to the point where it would now turn 18 southward along Old and Middle River and flow toward the 19 pumps. So after that has been blended by the cross-Delta 20 flow and whatever flow as entering the Delta from Suisun Bay 21 area and is commingled and that water arrives at the intake 22 to Clifton Court in the Central Valley Project pumping plant 23 at Tracy, so to some degree, but it would be very difficult 24 for me to tell if it is a 5 percent or 50 percent 25 influence. CAPITOL REPORTERS (916) 923-5447 8734 1 MR. HERRICK: Did the Department consider, in 2 considering whether to endorse the San Joaquin River 3 Agreement, did the Department examine whether or not the 4 quality of water at its intake at Clifton Court Forebay 5 would be affected? 6 MR. RUSSELL: I don't know of an explicit analysis 7 along those lines that occurred. 8 MR. HERRICK: The San Joaquin River Agreement doesn't 9 take any position on the interior Delta standards, which are 10 proposed. Did the Department of Water Resources take that 11 into consideration in its endorsement of the San Joaquin 12 River Agreement? 13 MR. RUSSELL: It is my recollection we discussed this 14 during Phase V of the current proceedings and in that we 15 felt that the installation of the interior barriers in the 16 South Delta channels would help with that concern. 17 MR. HERRICK: Again, because the San Joaquin River 18 Agreement says that that may happen, not necessarily happen, 19 the tidal barriers being installed, what is the Department's 20 position if they are not installed on the interior Delta 21 standards? 22 MR. RUSSELL: Our position has to be to try to get them 23 installed. So we will do whatever we can to go forward with 24 that project. 25 MR. HERRICK: I don't have any further questions. CAPITOL REPORTERS (916) 923-5447 8735 1 Thank you. 2 C.O. STUBCHAER: Thank you, Mr. Herrick. 3 Mr. Birmingham. 4 ---oOo--- 5 CROSS-EXAMINATION OF THE DEPARTMENT OF WATER RESOURCES 6 BY WESTLANDS WATER DISTRICT AND 7 SAN LUIS DELTA-MENDOTA WATER AUTHORITY 8 BY MR. BIRMINGHAM 9 MR. BIRMINGHAM: Mr. Russell, I am Tom Birmingham. I 10 am an attorney that represents Westlands Water District and 11 San Luis Delta-Mendota Water Authority in these proceedings, 12 and I have a few questions for you. 13 First, with respect to your written testimony -- 14 C.O. STUBCHAER: Mr. Birmingham, they can't hear you in 15 the back of the room. Maybe your voice is worn out from 16 yesterday. I don't know. 17 MR. BIRMINGHAM: It's more likely that I don't have 18 anything worth hearing. 19 Mr. Russell, in Department of Water Resources Exhibit 20 39, is that your written testimony for Phase II-A? 21 MR. RUSSELL: Yes, it is. 22 MR. BIRMINGHAM: Generally, that describes your 23 understanding of the San Joaquin River Agreement? 24 MR. RUSSELL: That's correct. 25 MR. BIRMINGHAM: In particular the backstop provisions CAPITOL REPORTERS (916) 923-5447 8736 1 of the San Joaquin River Agreement? 2 MR. RUSSELL: Yes. In the testimony we cited specific 3 language in the San Joaquin River Agreement that discussed 4 the backstop provisions. 5 MR. BIRMINGHAM: Mr. Russell, the San Joaquin River 6 Agreement calls for the implementation of the Vernalis 7 Adaptive Management Plan? 8 MR. RUSSELL: That's correct. 9 MR. BIRMINGHAM: The Vernalis Adaptive Management Plan 10 is intended to achieve three primary objectives? 11 MR. RUSSELL: Okay. I would say, yes. You are going 12 to share those with me? 13 C.O. STUBCHAER: Raised eyebrows don't register on the 14 record. 15 MR. BIRMINGHAM: Do you have a copy of the San Joaquin 16 River Agreement with you? 17 MR. RUSSELL: I have a copy of the San Joaquin River 18 Agreement as well as the appendices. 19 MR. BIRMINGHAM: I would ask you to look at Page 3 of 20 the San Joaquin River Agreement, which is attached to San 21 Joaquin River Group Authority Exhibit 2. 22 MR. RUSSELL: I have that in front of me. 23 MR. BIRMINGHAM: Is it correct that it states that the 24 San Joaquin River Agreement is intended to achieve three 25 primary objectives? CAPITOL REPORTERS (916) 923-5447 8737 1 MR. RUSSELL: Yes, it says that. 2 MR. BIRMINGHAM: One of the objectives is to implement 3 protective measures for fall-run salmon within the framework 4 of a carefully designed management and study program; is 5 that correct? 6 MR. RUSSELL: That's correct. 7 MR. BIRMINGHAM: Another objective is to Gather 8 scientific information on the relative effects of flow in 9 the Lower San Joaquin River, Central Valley Project and 10 State Water Project export pumping rates and operation of a 11 fish barrier at the Head of Old River on the survival and 12 passage of the salmon smolts through the Delta? 13 MR. RUSSELL: Yes, that is what it says. 14 MR. BIRMINGHAM: A third primary objective is to 15 provide environmental benefits in the Lower San Joaquin 16 River and Delta during the April/May period? 17 MR. RUSSELL: Were you including that as a list of 18 items that were written in the -- 19 MR. BIRMINGHAM: I am asking you if that is your 20 understanding of the objectives? 21 MR. RUSSELL: That is my understanding of the 22 objective, but I don't see that written as you read it. 23 MR. BIRMINGHAM: On Page 3 of the San Joaquin River 24 Agreement, under Paragraph 2.5.3, it states: 25 As one of the primary objectives to provide CAPITOL REPORTERS (916) 923-5447 8738 1 environmental benefits in the Lower San 2 Joaquin River and Delta at a level of 3 protection equivalent to the San Joaquin 4 River portion of the 1995 Water Quality 5 Control Plan for the duration of this 6 agreement. (Reading.) 7 MR. RUSSELL: That's correct. Later on Page 2.7 it 8 speaks to the April/May period. I was trying to follow 9 along with where you were. 10 MR. BIRMINGHAM: My questions don't necessarily follow 11 the words of the agreement, Mr. Russell. If it confuses 12 you, I apologize. 13 As I understand the San Joaquin River Agreement, it 14 provides that members of the San Joaquin River Group 15 Authority with water rights on the San Joaquin River or 16 tributaries to the San Joaquin River will provide up to 17 110,000 acre-feet of water per year during the term of the 18 San Joaquin River Agreement as necessary to meet the target 19 flows during the April/May pulse flow period? 20 MR. RUSSELL: That's correct; that is my 21 understanding. 22 MR. BIRMINGHAM: Mr. Russell, do you believe that there 23 is benefit to the public in conducting experiments to 24 determine the impact of the Department of Water Resources's 25 Delta pumps on fish within the Delta? CAPITOL REPORTERS (916) 923-5447 8739 1 MR. RUSSELL: I believe there is considerable 2 uncertainty at this time, and that would go a long way to 3 resolve the uncertainty. That would be in the public 4 interest. 5 MR. BIRMINGHAM: In particular with respect to 6 determining the impacts of DWR's pumping facilities in the 7 Delta on fall-run salmon, there would be a benefit to the 8 public; is that correct? 9 MR. RUSSELL: That's correct. 10 MR. BIRMINGHAM: Under the San Joaquin River Agreement 11 the Department of Water Resources is going to pay a million 12 dollars per year to obtain up to 110,000 acre-feet per year 13 to conduct an experiment to determine the effects of the 14 State Water Project pumps on salmon smolt survival? 15 MR. RUSSELL: To the extent we are paying the 1,000,000 16 and the flows will come down there, but it is not like we 17 are paying 1,000,000 for 110,000 acre-feet of water. We are 18 only partly paying for that 110,000. 19 MR. BIRMINGHAM: Going back to your testimony, the San 20 Joaquin River Group -- excuse me. The Department of Water 21 Resources Exhibit 39, on Page 2, you're talking about the 22 protections provided by the backstop; is that correct? 23 MR. RUSSELL: Yes, that is the intent. 24 MR. BIRMINGHAM: There is a sentence in the middle 25 paragraph at the end of the paragraph that states "this," CAPITOL REPORTERS (916) 923-5447 8740 1 and when you refer to "this," you are referring to the 2 backstop; is that correct? 3 MR. RUSSELL: That's correct. 4 MR. BIRMINGHAM: Thank you. 5 This also protects the nonsettling parties who as a 6 result of the backstop will not be required to bear any flow 7 responsibilities that would have been assigned to the 8 settling parties absent the settlement? 9 MR. RUSSELL: That's correct. 10 MR. BIRMINGHAM: When you refer to the nonsettling 11 parties, you are referring to nonsettling parties within the 12 San Joaquin River Basin? 13 MR. RUSSELL: That's correct. 14 MR. BIRMINGHAM: You are not referring to nonsettling 15 parties in the Sacramento River Basin? 16 MR. RUSSELL: That's correct. 17 MR. BIRMINGHAM: There has been testimony here this 18 afternoon concerning the flows that are provided under the 19 San Joaquin River Agreement compared to the flows required 20 by the 1995 Water Quality Control Plan. 21 MR. RUSSELL: I recall. 22 MR. BIRMINGHAM: The flows contained in the Vernalis 23 Adaptive Management Plan are different than the flows that 24 are required by the 1995 Water Quality Control Plan? 25 MR. RUSSELL: Yes. CAPITOL REPORTERS (916) 923-5447 8741 1 MR. BIRMINGHAM: Is it correct, Mr. Russell, that the 2 Department of Water Resources has endorsed the Vernalis 3 Adaptive Management Plan and San Joaquin River Agreement 4 because it has concluded that the flows provided under the 5 Vernalis Adaptive Management Plan will provide a level of 6 protection equivalent to the flows required by the 1995 7 Water Quality Control Plan during the April/May pulse flow 8 period? 9 MR. RUSSELL: In combination with other actions that 10 are being proposed under the VAMP; that is correct. 11 MR. BIRMINGHAM: There has been some testimony 12 concerning the relationship between the Vernalis Adaptive 13 Management Plan and narrative standard. 14 MR. RUSSELL: Yes. I recall. 15 MR. BIRMINGHAM: The narrative standard that you are 16 referring to, would you please describe that standard for 17 us? 18 MR. RUSSELL: I will be reading from Page 18 of the 19 1995 Water Quality Control Plan for salmon protection, and 20 under the water year heading "Time Period" it states: 21 Water quality conditions shall be maintained 22 together with other measures in the watershed 23 sufficient to achieve a doubling of natural 24 production of chinook salmon from the average 25 production of 1967 through 1991, consistent CAPITOL REPORTERS (916) 923-5447 8742 1 with the provisions of state and federal 2 law. (Reading.) 3 MR. BIRMINGHAM: I would like to go back to Paragraph 4 2.5.1 in the San Joaquin River Agreement which is on Page 3 5 of the attachments to San Joaquin River Agreement Authority 6 Exhibit 2. 7 MR. RUSSELL: I am there. 8 MR. BIRMINGHAM: Is it correct that the parties 9 anticipated -- the parties to the San Joaquin River 10 Agreement anticipated that implementation of the agreement 11 in conjunction with other non VAMP measures would achieve a 12 doubling of natural salmon production? 13 MR. RUSSELL: I will read from the Page 3, Paragraph 14 2.5.1. 15 Implement protective measures for San Joaquin 16 River fall-run chinook salmon within the 17 framework of carefully designed management 18 study program, which is designed to achieve 19 in conjunction with other non VAMP measures a 20 doubling of natural salmon production by 21 improving smolt survival through the Delta. 22 However, the parties recognize that future 23 salmon production cannot be guaranteed. 24 (Reading.) 25 So, in light of that, I would say that is one of their CAPITOL REPORTERS (916) 923-5447 8743 1 objectives. 2 MR. BIRMINGHAM: When the San Joaquin River Agreement 3 on Page 3 refers to a doubling of the natural production of 4 salmon, it's making that reference because that is the 5 narrative standard contained in the 1995 Water Quality 6 Control Plan? 7 MR. RUSSELL: I suspect that is true, but I've also 8 heard that the doubling is part of the CVPIA program. 9 MR. BIRMINGHAM: So it is related to both the 1995 10 Water Quality Control Plan narrative standard for salmon and 11 the fish doubling program under the Anadromous Fish Recovery 12 Plan of the CVPIA? 13 MR. RUSSELL: That is my understanding, yes. 14 MR. BIRMINGHAM: I believe that you have testified that 15 in some circumstances the flows provided for in the San 16 Joaquin River Agreement and the Vernalis Adaptive Management 17 Plan would be lower than the flows required by the 1995 18 Water Quality Control Plan? 19 MR. RUSSELL: I don't know if I said -- yes, that's 20 true, I did say that. 21 MR. BIRMINGHAM: Isn't it correct, Mr. Russell, that 22 only in limited circumstances will the flows anticipated by 23 the San Joaquin River Agreement be lower than the flows 24 required by the 1995 Water Quality Control Plan? 25 MR. RUSSELL: That is true, and I believe the year type CAPITOL REPORTERS (916) 923-5447 8744 1 in critically dry years. 2 MR. BIRMINGHAM: Again, the Department of Water 3 Resources is of the view that the flows required by the San 4 Joaquin River Agreement will provide equivalent protections 5 to flows required by the 1995 Water Quality Control Plan 6 because the San Joaquin River Agreement includes 7 installation of the Head of Old River Barrier and a 8 reduction in exports? 9 MR. RUSSELL: That is correct. 10 MR. BIRMINGHAM: There was testimony concerning the use 11 of Department of Water Resources' export facilities to wheel 12 water on behalf of the Bureau of Reclamation? 13 mr. RUSSELL: I recall. 14 MR. BIRMINGHAM: I believe you testified that the 15 Department of Water Resources wheels up to 128,000 acre-feet 16 of water on behalf of the Bureau for the cross-valley 17 contractors? 18 MR. RUSSELL: Cross-Valley Canal Contractors; that's 19 correct. 20 MR. BIRMINGHAM: Is it correct that the Cross-Valley 21 Canal Contractors are located in the Tulare Lake Basin? 22 MR. RUSSELL: Yes. 23 MR. BIRMINGHAM: Isn't it correct that the water that 24 is wheeled on behalf of the Bureau of Reclamation for the 25 Cross-Valley Canal Contractors is actually delivered through CAPITOL REPORTERS (916) 923-5447 8745 1 exchange to Arvin-Edison Water District? 2 MR. RUSSELL: Yes, that is my understanding. 3 MR. BIRMINGHAM: Arvin-Edison Water District is in Kern 4 County? 5 MR. RUSSELL: That is also true, yes. 6 MR. BIRMINGHAM: There are no flows to Arvin-Edison 7 Water District that make their way into the San Joaquin 8 River? 9 MR. RUSSELL: None that I am aware of. 10 MR. BIRMINGHAM: May I have a moment? 11 C.O. STUBCHAER: Yes. 12 Off the record. 13 MR. BIRMINGHAM: Mr. Russell, one final series of 14 questions. 15 MR. RUSSELL: Before you go on, may I have a 16 clarification on the 128,000? 17 MR. BIRMINGHAM: Certainly. 18 MR. RUSSELL: The 128,000, that is a modeling number 19 that we have used as a target for delivery. The actual 20 delivery would depend on the hydrology. 21 MR. BIRMINGHAM: Thank you for that clarification. 22 MEMBER FORSTER: Can you say that again? 23 MR. RUSSELL: During the development of the modeling in 24 support of the Draft Environmental Impact Report, as one of 25 the modeling assumptions, we put target level deliveries CAPITOL REPORTERS (916) 923-5447 8746 1 for different locations. One of those target level 2 deliveries was 128,000 acre-feet annually to the 3 Cross-Valley Canal to which we just spoke. Those are target 4 levels, and depending on the availability of water, we may 5 or may not be able to deliver the full amount. It is a 6 target level, and in the Board's Environmental Impact Report 7 there are values that are less than that 128,000. 8 MR. BIRMINGHAM: But the critical point is, regardless 9 of the amount of water you wheel on behalf of the Bureau of 10 Reclamation for delivery to Arvin-Edison Water Storage 11 District to exchange with the Cross-Valley Canal 12 Contractors, that water is delivered to the Tulare Lake 13 Basin and does not make its way back into the San Joaquin 14 River? 15 MR. RUSSELL: That's correct. That is my 16 understanding. 17 MR. BIRMINGHAM: One final series of questions 18 concerning the backstop obligation you have described in 19 testimony, Mr. Russell, Department of Water Resources 20 Exhibit 39. On Page 3, in the paragraph in the middle of 21 the page it states, first paragraph: 22 10.1.1 of the agreement provides that the 23 Bureau of Reclamation shall assume the 24 responsibility for the San Joaquin River 25 portion of the 1995 Water Quality Control CAPITOL REPORTERS (916) 923-5447 8747 1 Plan objectives that can reasonably be met 2 through flow measures for the term of the 3 agreement. (Reading.) 4 MR. RUSSELL: That's correct. 5 MR. BIRMINGHAM: The sentence which I just read refers 6 to objectives that can be reasonably met through flow 7 measures? 8 MR. RUSSELL: That's correct. 9 MR. BIRMINGHAM: That is a -- that is different than 10 flow objectives? 11 MR. RUSSELL: That is also correct. 12 MR. BIRMINGHAM: In other words, if a salinity 13 objective can be met through flow measures reasonably, then 14 the Bureau of Reclamation has agreed to backstop the 15 obligation of the settling parties and nonsettling parties 16 to meet that salinity objective? 17 MR. RUSSELL: As it results from a flow, yes. That is 18 my understanding. 19 MR. BIRMINGHAM: There has been discussion of the 20 inability of the Bureau of Reclamation to meet the salinity 21 standard with water from New Melones in all circumstances? 22 MR. RUSSELL: I recall, yes. 23 MR. BIRMINGHAM: Isn't it correct that that is a result 24 of hydrology; is that correct? 25 MR. RUSSELL: Mostly hydrology, yes. CAPITOL REPORTERS (916) 923-5447 8748 1 MR. BIRMINGHAM: And other demands on water from New 2 Melones Reservoir? 3 MR. RUSSELL: Yes. 4 MR. BIRMINGHAM: Isn't it correct, Mr. Russell, that 5 the San Joaquin River Agreement contemplates that the Bureau 6 of Reclamation will buy from other parties to the San 7 Joaquin River Agreement additional water which would be used 8 to meet the salinity standard at Vernalis? 9 MR. RUSSELL: I heard that, yes. That is true. I 10 haven't recalled reading it, but I do remember testimony to 11 that effect. 12 MR. BIRMINGHAM: I have no further questions. 13 C.O. STUBCHAER: Okay, Mr. Birmingham. 14 Ms. Cahill. 15 MS. CAHILL: I don't have any questions after all. 16 C.O. STUBCHAER: Mr. Hasencamp. 17 ---oOo--- 18 CROSS-EXAMINATION OF THE DEPARTMENT OF WATER RESOURCES 19 BY CONTRA COSTA WATER DISTRICT 20 BY MR. HASENCAMP 21 MR. HASENCAMP: Good afternoon. Unfortunately, Mr. 22 Maddow couldn't be here today, so you are stuck with me for 23 this afternoon. A few questions. 24 For these few questions I revoke my previous 25 affirmation of -- the affirmation of the oath. CAPITOL REPORTERS (916) 923-5447 8749 1 MEMBER FORSTER: The what? 2 MR. HASENCAMP: I revoke my previous affirmation of 3 oath. 4 C.O. STUBCHAER: He is not a witness. He is not under 5 oath. He is a pseudo lawyer. 6 MEMBER FORSTER: I thought you were going to tell us 7 you went to law school. 8 MR. HASENCAMP: Good afternoon, Mr. Russell. I would 9 like to ask you a couple questions on the infamous backstop. 10 MR. RUSSELL: Good afternoon. 11 MR. HASENCAMP: Under the San Joaquin River Agreement, 12 is it your understanding that the San Joaquin River Group 13 would be completely relieved of any Delta outflow obligation 14 and that theoretical quantity of water would be assigned to 15 the State and federal projects? 16 MR. RUSSELL: I understand that they are going to 17 provide 110,000 acre-feet annually, and some of that water 18 would be going to go to outflow. They would be backstopping 19 issues, speaks to that water in addition to that which would 20 be assigned -- would be backstopped by the Central Valley 21 Project and State Water Project. 22 MR. HASENCAMP: That flow that you spoke of that the 23 San Joaquin River Group is providing, is that during the 24 pulse flow period only? 25 MR. RUSSELL: My understanding from reading the San CAPITOL REPORTERS (916) 923-5447 8750 1 Joaquin River Agreement, there was also water in October. 2 MR. HASENCAMP: That would be April, May and then 3 October? 4 MR. RUSSELL: Yes. 5 MR. HASENCAMP: In June, July, August if there was any 6 obligation for the San Joaquin River Group then the State 7 and federal project would take up a hundred percent of that 8 obligation? 9 MR. RUSSELL: That is correct, the outflow portion. 10 MR. HASENCAMP: Has any work been done to quantify 11 that, quote, backstop obligation? 12 MR. RUSSELL: We have the results from the modeling 13 work, and the Board has reported those in their Draft 14 Environmental Impact Record in the appendices. So, yes, 15 there is considerable work that discusses that. 16 MR. HASENCAMP: That was done assuming that Alternative 17 2 in the Draft EIR was adopted with the VAMP agreement in 18 addition to Alternative 2; is that correct? 19 MR. RUSSELL: Let me see if I can help you with that a 20 little bit. The current Alternative 1 is D-1485. 21 Alternative 2 is the Central Valley Project/State Water 22 Project meeting all of the requirements of the Delta 23 obligations of the Water Quality Control Plan. 24 Alternative 3 would be a revised term '91 with Friant 25 being in basin to Alternative 4, modify term '91 with Friant CAPITOL REPORTERS (916) 923-5447 8751 1 as out basin user. 2 Is this the direction you are going? 3 MR. HASENCAMP: My question was: How would you 4 describe the alternative in the Draft EIR that analyzes the 5 San Joaquin River Agreement? 6 MR. RUSSELL: Alternative 8. 7 MR. HASENCAMP: What assumptions were made for the rest 8 of the water users outside the San Joaquin River? 9 MR. RUSSELL: Well, as with the other alternatives, 10 with Alternative 2, for instance, the projects, the CVP and 11 State Water Projects, would be responsible for meeting all 12 of the Water Quality Control Plan objectives. 13 MR. HASENCAMP: There has been no analysis done that 14 say if the State Board chose Alternative 3, but then chose 15 the San Joaquin River Agreement for the San Joaquin River 16 portion of Alternative 3, how much water is required to 17 backstop that agreement? 18 MR. RUSSELL: I believe those numbers can be teased out 19 of the appendix. To the extent that maybe -- I don't know 20 the actual numbers specifically. So I would say that that 21 would be something we would do. 22 Now, it is important to understand also that what we 23 are talking about is a comparative analysis, given historic 24 hydrology but does not necessarily speak to the hydrology 25 that is going to come in the future. If you make a CAPITOL REPORTERS (916) 923-5447 8752 1 statement now, that is only hypothetical as to what might 2 happen in real future operations after the Board has 3 provided a decision. 4 MR. HASENCAMP: Well, let's talk about that a little 5 bit in the real word of operations. Let's assume that the 6 San Joaquin River Agreement has been adopted, and it is year 7 2000, and there is a -- it comes time for the Department of 8 Water Resources to backstop the San Joaquin River 9 Agreement. Each year is that quantity of water going to 10 have to be determined how much of that backstop is needed to 11 implement the agreement? 12 MR. RUSSELL: That is the necessity of not knowing 13 future hydrology. Yes, you are right. 14 MR. HASENCAMP: The plan is then each year there is 15 going to be a certain block of water that is labeled the 16 backstop for the San Joaquin River Agreement, and that could 17 be more or less, of course, depending on the hydrology; is 18 that the case? 19 MR. RUSSELL: I don't know that it would be that 20 explicit. At that time we may have a situation where the 21 plan for the VAMP is in and available by the beginning of 22 April, say. And that the -- that amount of water that is 23 necessary would be determined from there. And then as we go 24 into June, July and August, as you suggested, we would 25 determine what the outflow requirements were and from that CAPITOL REPORTERS (916) 923-5447 8753 1 we would apportion that amount along the Central Valley 2 Project, the State Water Project of the San Joaquin River 3 watershed portion or necessary contribution according to the 4 COA. 5 MR. HASENCAMP: The amount of water would be released 6 from the State and federal projects even after they are 7 releasing water from storage? 8 MR, RUSSELL: Potentially true, yes. Currently we are 9 meeting all the obligations. So this is definitely an 10 improvement. 11 MR. HASENCAMP: Let's assume in a certain case that the 12 backstop quantity in a given year is 100,000 acre-feet. You 13 stated previously that if it were a dry year that water 14 would likely come from increased releases from Oroville and 15 Shasta? 16 MR. RUSSELL: Presumably, yes. No other incidental 17 inflow into the Delta that would be assigned to outflow. 18 MR. HASENCAMP: In dry years a likely or -- strike that 19 -- a possible implication of the San Joaquin River Agreement 20 is that Shasta and Oroville are at lower levels than they 21 would have been absent the agreement? 22 MR. RUSSELL: Well, what I am going to suggest is if it 23 was left to the projects under flow Alternative 2, they 24 would likely be at higher levels because we would have been 25 able to take advantage of 110,000 acre-feet that would not CAPITOL REPORTERS (916) 923-5447 8754 1 necessarily have been made available otherwise. 2 MR. HASENCAMP: Let's assume that the Board doesn't 3 adopt Alternative 2, but adopts Alternative 3, except it 4 also adopts the San Joaquin River Agreement. 5 MR. RUSSELL: If I can say it back to make sure I 6 understand. They are going to adopt the San Joaquin River 7 Agreement for the San Joaquin watershed. They are going to 8 apply Alternative 3 to the rest of the Central Valley. 9 MR. HASENCAMP: That's right, the water right priority 10 alternative. 11 MR. RUSSELL: From that case we would have 12 contributions associated with the modified term '91, as I 13 understand it, and the projects would continue to make Delta 14 protections until we are in a balanced condition. After in 15 a balanced condition, there would be an apportionment to the 16 other water right holders for their share. 17 MR. HASENCAMP: Wouldn't the State and federal projects 18 have to continue releasing water to make up for the backstop 19 for the San Joaquin River Agreement beyond what they 20 otherwise would have done? 21 MR. RUSSELL: That is correct. At that point we 22 would. That is the intent. 23 MR. HASENCAMP: You stated that the San Joaquin River 24 Agreement protects nonsettling parties who, as a result of 25 the backstop, will not be required to bear any flow CAPITOL REPORTERS (916) 923-5447 8755 1 responsibility that would have been assigned to settling 2 parties absent the settlement? 3 MR. RUSSELL: That's correct. 4 MR. HASENCAMP: In your discussion with Mr. Birmingham 5 a few moments ago you said the intent of that statement was 6 for the San Joaquin River parties and not the Sacramento 7 River parties? 8 MR. RUSSELL: In this specific discussion it is for the 9 San Joaquin River watershed. It doesn't mean we wouldn't 10 provide backstopping to other settlements that we should 11 enter into prior to Phase VIII. 12 MR. HASENCAMP: But assuming that there aren't 13 settlements for the Sacramento River, then are you saying 14 that they might be affected by the San Joaquin River 15 Agreement? 16 MR. RUSSELL: No, I don't expect anyone to be 17 affected. The projects -- certainly the State Water Project 18 and their contractors have agreed, have endorsed this 19 settlement. They believe it is to their advantage to do 20 so. 21 MR. HASENCAMP: You said Oroville and Shasta might be 22 lower levels in a dry year because of the San Joaquin River 23 Agreement compared to Alternative 3? 24 MR. RUSSELL: I didn't say that. I said with the San 25 Joaquin River Agreement we have an additional 110,000 CAPITOL REPORTERS (916) 923-5447 8756 1 acre-feet of water that would enter the Delta during the 2 course of the pulse flow period and so forth. Absent that, 3 say, Alternative 2 we would not have had that additional 4 water. So, wherever that water came from, we would have 5 additional water levels in the project reservoirs as a 6 result of having this other contribution. So, our water 7 levels would shrink. 8 MR. HASENCAMP: My hypothetical is that the Board 9 adopts Alternative 3 with the San Joaquin River Agreement. 10 MR. RUSSELL: I understand what you are saying. 11 MR HASENCAMP: In that hypothetical, if the San Joaquin 12 River Agreement does not provide the theoretical Delta 13 outflow obligation, is it true that the State and federal 14 projects would assume that Delta outflow obligation? 15 MR. RUSSELL: Yes. 16 MR. HASENCAMP: If they had this additional obligation, 17 isn't it true that Shasta and Oroville would likely be lower 18 in dry years because of additional releases? 19 MR. RUSSELL: Lower than what? 20 MR. HASENCAMP: Lower than they would have under 21 Alternative 3 without the San Joaquin River Agreement? 22 MR. RUSSELL: That is correct, they wouldn't. 23 MR. HASENCAMP: If this dry summer is followed by a wet 24 fall and the storage is lower in Oroville, with the San 25 Joaquin River Agreement in place compared to Alternative 3, CAPITOL REPORTERS (916) 923-5447 8757 1 than the releases from Oroville under that scenario would be 2 less because Oroville would be refilling that additional 3 drawdown; is that correct? 4 MR. RUSSELL: You are making a presumption that we 5 would fill to spill, a level that we would have to discharge 6 water for flood reservation; is that what you are suggesting? 7 MR. HASENCAMP: No. I am suggesting refill now in -- 8 MR. RUSSELL: How would that change the releases? 9 MR. HASENCAMP: Because in the -- I am supposed to ask 10 the questions. 11 UNIDENTIFIED VOICE: I like his better, though. 12 MR. RUSSELL: I was trying to clarify your question. I 13 should let you do it. 14 MR. HASENCAMP: If case one, which is no San Joaquin 15 Agreement, Oroville is at a higher level than case two, 16 which is a Alternative 3 with the San Joaquin River 17 Agreement, in case one Oroville would reach flood control 18 levels sooner and, therefore, have to release additional 19 flow earlier in the year; isn't that true? 20 MR. RUSSELL: If we encroached on the flood control 21 space, we would make releases to get back to good control. 22 MR. HASENCAMP: In this scenario, if additional 23 releases are being made, is it likely that the Delta would 24 be in balanced conditions for a shorter period of time than 25 if less releases were being made? CAPITOL REPORTERS (916) 923-5447 8758 1 MR. RUSSELL: If I can take your same assumption and 2 that we are in flood condition, likely we were in excess 3 condition that would extend well into the year. It would be 4 an issue. 5 MR. HASENCAMP: This is not a flood condition as much 6 as a refill condition after a dry year. 7 MR. RUSSELL: If we are spilling water, we are 8 potentially in a flood condition. Otherwise we would store 9 the water. 10 MR. HASENCAMP: Eventually, though, the storage you 11 would want to refill Oroville and you would have to make 12 less releases during certain times of the year if Oroville 13 were lower? 14 MR. RUSSELL: I think I am getting confused with what 15 we are trying to do here. Would you help me a little bit, 16 please? 17 C.O. STUBCHAER: I am having a little trouble. You 18 said this was a wet year following a dry year; is that 19 right? 20 MR. HASENCAMP: A wet fall following a dry summer. 21 C.O. STUBCHAER: I think I understood Mr. Russell's 22 answer, but I am not sure the follow-up question I 23 understand. 24 MR. HASENCAMP: Well, the question is that if Oroville 25 and Shasta were at lower levels than they would be because CAPITOL REPORTERS (916) 923-5447 8759 1 of the San Joaquin River Agreement, then less releases would 2 be made while the storage is recovering back to the previous 3 level. If an additional 100,000 acre-feet had to be 4 released from Oroville to support the San Joaquin River 5 Agreement, wouldn't that 100,000 acre-feet be made up and 6 tried to recover storage later in the year? 7 MR. RUSSELL: Let me help you a little bit this way 8 because we are dealing with numbers, be a little more 9 careful with the numbers we are using. 10 You suggested there would be a requirement for 11 an additional hundred thousand acre-feet due to the 12 backstopping of the San Joaquin River obligation to Delta 13 outflow. Of that hundred thousand acre-feet, because of the 14 COA, the State Water Project would only be responsible for 15 25 percent, or 25,000 acre-feet. 16 So now we're talking 25,000 acre-feet of change in 17 storage in Oroville. Oroville water levels are potentially 18 lower by 25,000 acre-feet. Now we have a very wet, as you 19 suggested, fall. Oroville fills and spills. Now there is 20 water being evacuated from Oroville storage to get to the 21 flood control envelope, and you are suggesting that the 22 Delta would be in balanced condition? I don't think so. 23 MR. HASENCAMP: I guess the term "very wet" is not a 24 very good term. But wouldn't you agree that if less water 25 was being released from a reservoir into the Delta that the CAPITOL REPORTERS (916) 923-5447 8760 1 Delta inflow would tend to be lower than it would 2 otherwise? 3 MR. RUSSELL: I believe we release the same amount of 4 water because we use Oroville as a buffer to fill and 5 accommodate the inflow and we make the necessary releases 6 for Delta protections and hopefully meet our obligations 7 under the contract. I don't see there would be any 8 different inflow. 9 MR. HASENCAMP: You meet the necessary minimum flows, 10 but if you had additional water that was encroached on flood 11 control you would release that in addition to your minimum 12 needs? 13 MR. RUSSELL: That's correct; we would be spilling to 14 get within the flood control envelope, in which case we are 15 in a flood event. 16 MR. HASENCAMP: But if storage was lower and you could 17 store that water, you would try to keep the minimum Delta 18 outflow going for as long as you possibly could, until you 19 had surplus water; isn't that true? 20 MR. RUSSELL: That's -- I believe that would be true. 21 However, you have to understand that if we are filling our 22 reservoir from the Feather River, to that extent there is 23 going to be considerable incidental water coming into the 24 Delta and we would be in excess condition. Just the way it 25 works. We don't have that isolated where we just have a CAPITOL REPORTERS (916) 923-5447 8761 1 storm over the Feather River. 2 MR. HASENCAMP: You couldn't envision a scenario where 3 Oroville was lower in a particular case, but the Delta would 4 not be in balanced condition for a longer period of time 5 while Oroville is refilling? 6 MR. RUSSELL: It may be in balance a longer period of 7 time. It would be as a result of -- okay. Let's back 8 away. We fill Oroville. And that is because there is a lot 9 of runoff; water is going into Oroville. It also rains in 10 other areas, so we are getting additional water into the 11 Delta. At that point it's problematic. I don't know 12 whether we would be in balanced condition longer or not. We 13 may not. It may be that we are in excess condition earlier 14 because of that hydrology. It doesn't follow directly. 15 It's part of all the other features that go into Delta 16 inflow. 17 MR. HASENCAMP: Let's assume I had asked my questions 18 better, and let's assume that there was a scenario when the 19 Delta would be in balanced conditions longer because of the 20 San Joaquin River Agreement. You might not agree with that 21 assumption, but let's just make that assumption. 22 MR. RUSSELL: I'll go along with you. 23 MR. HASENCAMP: In that hypothetical is it possible 24 that term '91 water right holders could be affected by the 25 San Joaquin River Agreement because the Delta were in CAPITOL REPORTERS (916) 923-5447 8762 1 balanced condition for a longer period of time? 2 MR. RUSSELL: I suppose if you crafted the hypothetical 3 to such an extent that you could almost force them to be 4 affected under those circumstances. However, that is not 5 the way we operate. 6 MR. HASENCAMP: I have no further questions. 7 Thank you. 8 C.O. STUBCHAER: Thank you, Mr. Hasencamp. 9 Mr. Jackson show up? 10 I guess not. 11 MR. HERRICK: I just feel I need to say something on 12 Mr. Jackson's behalf. He would probably ask you if 13 Mr. Russell were available later if he can -- I know he did 14 want to ask questions. I should put that out there. 15 C.O. STUBCHAER: Thank you for passing that message 16 on. 17 Do we have any redirect, Mr. Sandino? 18 MR. SANDINO: One second. 19 No, we don't. 20 C.O. STUBCHAER: Exhibits? 21 MR. SANDINO: We would like to offer into the record 22 DWR Exhibit 39, which is the testimony of Dwight Russell for 23 Phase II-A. 24 Dwight pointed out that maybe the staff might have some 25 questions. CAPITOL REPORTERS (916) 923-5447 8763 1 C.O. STUBCHAER: I am sorry. 2 MR. SANDINO: He loves to answer questions. 3 C.O. STUBCHAER: My error. 4 Ms. Whitney. 5 MS. WHITNEY: My questions have already been answered. 6 Thank you. 7 C.O. STUBCHAER: Ms. Leidigh. 8 MS. LEIDIGH: I don't have any. 9 C.O. STUBCHAER: Ms. Forster. 10 MEMBER FORSTER: I have a question for Mr. Russell. I 11 am going to try to frame it on your testimony on Page 3 12 where you talk about -- it's the second paragraph. You said 13 the first paragraph, 10.1.1, of the agreement provides that 14 the Bureau assume the responsibility for the San Joaquin 15 River portion of the 1995 Water Quality Control Plan 16 objectives that can be reasonably met through flow 17 measures. Then when Mr. -- I am going to refer to the San 18 Joaquin River Agreement, sort of parallel, and see if I 19 understand something. 20 When Mr. Birmingham questioned you on the three primary 21 objectives of the San Joaquin River Agreement and he read 22 that 2.5.3 provides environmental benefits in the lower San 23 Joaquin River and Delta at a level of protection equivalent 24 to the 1995 Water Quality Control Plan, are we talking about 25 the same thing? CAPITOL REPORTERS (916) 923-5447 8764 1 MR. RUSSELL: Yes, I am. 2 MEMBER FORSTER: Am I to assume that it is your opinion 3 that the flows that are in the San Joaquin River Agreement 4 and the VAMP will help take care of the water quality 5 objectives for the South Delta that have been a part of 6 other phases that we have been listening to? 7 MR. RUSSELL: Yes. That is my understanding. 8 MEMBER FORSTER: You were here this morning when Mr. 9 Hildebrand was talking about who he thinks is responsible. 10 MR. RUSSELL: That's correct. 11 MEMBER FORSTER: The issue that he has been talking 12 about. So, that sort of agrees with what Alex said that the 13 Bureau -- he thinks the Bureau should take care of water 14 quality objectives? 15 MR. RUSSELL: I believe they are very closely linked; 16 that's correct. This implies that the San Joaquin River 17 Agreement will go forward, and through that mechanism there 18 will be water made available, either through purchase or 19 through the 110,000 acre-feet from the parties to the 20 agreement. So there will be water, yes; that's correct. 21 MEMBER FORSTER: An observation on my part in 22 listening. There is so much attention to fish, rightly so. 23 I am just hoping that the same attention in the agreement 24 has been given to the water quality problems that have been 25 stated over and over and over during these hearings, that CAPITOL REPORTERS (916) 923-5447 8765 1 there is a nexus that people felt with the flows for fish, 2 that this was going to also resolve some of the water 3 quality problems. And that is what these words say. I just 4 -- the other day we were trying to figure out real water 5 versus paper water. I am hoping that there is real water 6 quality improvements versus just afterthought for that goes 7 along with fish flows. 8 MR. RUSSELL: I understand your comment. My response 9 to that that is somewhat in your hands as to how you feel 10 that it would be necessary to do the balance. That is my 11 impression, anyhow. You are becoming aware of this, and it 12 is very important and probably the intention of the hearing 13 in the first place. 14 C.O. STUBCHAER: I hope we do the right thing. 15 MR. RUSSELL: Thank you. 16 I agree with you; that is correct. 17 MEMBER FORSTER: Probably up to me to figure out if all 18 the timing fits with improvement in water quality, the 19 timing to improve fish, and I will figure that out. 20 MR. RUSSELL: If I may add some additional 21 information. If you recall during Phase V of our testimony 22 of our proceedings, we spent a considerable amount of time 23 in meeting with water quality issues for South Delta and we 24 thought that the installation and operation of the 25 agricultural barriers would go a long ways to help resolving CAPITOL REPORTERS (916) 923-5447 8766 1 that. We would like to reinforce that at this time. 2 MEMBER FORSTER: I would also like to ask -- I remember 3 that. I remember Mr. Ford, it was. 4 MR. RUSSELL: That is correct. 5 MEMBER FORSTER: In the back -- I was trying to figure 6 out when the first cross-examiner started. If it was 7 physically possible for DWR to backstop the Bureau by 8 somehow putting -- sending flows someplace and having it get 9 into the river, and so what you do is you exchange, but you 10 don't have any physical pipelines or canals to do it? 11 MR. RUSSELL: That's correct. My understanding is with 12 Alex Hildebrand's concept of recirculation, the water would 13 be pumped from the Tracy Pumping Plant and released into the 14 Newman Wasteway. From there it would go to the San Joaquin 15 River, and from there it would flow towards Vernalis. 16 The State Water Project's perspective, that presumably 17 we can do that is water that would have otherwise gone to 18 their CVP contractors we would deliver, that was pumped from 19 the Delta, would be the San Luis and then through the joint 20 use facility provide that water to their contractors. So, 21 it would be an exchange kind of thing, only way we can 22 actually help them. There may be other ways, but that is 23 what occurs to me, occurred to me during the 24 cross-examination. 25 MEMBER FORSTER: Thank you. CAPITOL REPORTERS (916) 923-5447 8767 1 MR. RUSSELL: You're welcome. 2 C.O. STUBCHAER: Now exhibits. 3 MR. SANDINO: We would like to offer into the record 4 DWR Exhibit 39, the testimony of Dwight Russell, Phase 5 II-A. 6 C.O. STUBCHAER: Any objections? 7 Seeing none, it is accepted into the record. 8 Any comments or questions before we adjourn? 9 Seeing none, we will adjourn until 9:00 a.m., Tuesday, 10 January 19th. 11 ---oOo--- 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 8768 1 REPORTER'S CERTIFICATE 2 3 4 STATE OF CALIFORNIA ) ) ss. 5 COUNTY OF SACRAMENTO ) 6 7 8 I, ESTHER F. WIATRE, certify that I was the 9 official Court Reporter for the proceedings named herein, 10 and that as such reporter, I reported in verbatim shorthand 11 writing those proceedings; 12 That I thereafter caused my shorthand writing to be 13 reduced to typewriting, and the pages numbered 8549 through 14 8768 herein constitute a complete, true and correct record 15 of the proceedings. 16 17 IN WITNESS WHEREOF, I have subscribed this certificate 18 at Sacramento, California, on this 25th day of January 1999. 19 20 21 22 23 ______________________________ ESTHER F. WIATRE 24 CSR NO. 1564 25