STATE WATER RESOURCES CONTROL BOARD PUBLIC HEARING 1998 BAY-DELTA WATER RIGHTS HEARING HELD AT 901 P STREET SACRAMENTO, CALIFORNIA TUESDAY, JANUARY 19, 1999 9:00 A.M. Reported by: MARY GALLAGHER, CSR #10749 CAPITOL REPORTERS (916) 923-5447 1 APPEARANCES ---oOo--- 2 3 BOARD MEMBERS: 4 JAMES STUBCHAER, CO-HEARING OFFICER JOHN W. BROWN, CO-HEARING OFFICER 5 MARC DEL PIERO MARY JANE FORSTER 6 7 STAFF MEMBERS: 8 THOMAS HOWARD - Supervising Engineer VICTORIA A. WHITNEY - Senior Engineer 9 10 COUNSEL: 11 WILLIAM R. ATTWATER - Chief Counsel WALTER PETTIT - Executive Director 12 BARBARA LEIDIGH - Senior Staff Counsel 13 ---oOo--- 14 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 8771 1 REPRESENTATIVES 2 PRINCETON CODORA GLENN IRRIGATION DISTRICT, et al. 3 FROST, DRUP & ATLAS 4 134 West Sycamore STreet Willows, California 95988 5 BY: J. MARK ATLAS, ESQ. 6 JOINT WATER DISTRICTS: 7 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 8 Oroville, California 95965 BY: WILLIAM H. BABER, III, ESQ. 9 CALIFORNIA SPORTFISHING PROTECTION ALLIANCE: 10 ROBERT J. BAIOCCHI 11 P.O. Box 357 Quincy, California 95971 12 BELLA VISTA WATER DISTRICT: 13 BRUCE L. BELTON, ESQ. 14 2525 Park Marina Drive, Suite 102 Redding, California 96001 15 WESTLANDS WATER DISTRICT: 16 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 17 400 Capitol Mall, 27th Floor Sacramento, California 95814 18 BY: THOMAS W. BIRMINGHAM, ESQ. AMELIA MINABERRIGARAI, ESQ. 19 THE BAY INSTITUTE OF SAN FRANCISCO: 20 GRAY BOBKER 21 55 Shaver Street, Suite 330 San Rafael, California 94901 22 CITY OF ANTIOCH, et al.: 23 FREDERICK BOLD, JR., ESQ. 24 1201 California Street, Suite 1303 San Francisco, California 94109 25 CAPITOL REPORTERS (916) 923-5447 8772 1 REPRESENTATIVES 2 LEAGUE OF WOMEN VOTERS: 3 ROBERTA BORGONOVO 4 2480 Union Street San Francisco, California 94123 5 UNITED STATES DEPARTMENT OF THE INTERIOR: 6 OFFICE OF THE SOLICITOR 7 2800 Cottage Way, Roon E1712 Sacramento, California 95825 8 BY: ALF W. BRANDT, ESQ. 9 CALIFORNIA URBAN WATER AGENCIES: 10 BYRON M. BUCK 455 Capitol Mall, Suite 705 11 Sacramento, California 95814 12 RANCHO MURIETA COMMUNITY SERVICES DISTRICT: 13 MCDONOUGH, HOLLAND & ALLEN 555 Capitol Mall, 9th Floor 14 Sacramento, California 95814 BY: VIRGINIA A. CAHILL, ESQ. 15 CALIFORNIA DEPARTMENT OF FISH AND GAME: 16 OFFICE OF THE ATTORNEY GENERAL 17 1300 I Street, Suite 1101 Sacramento, California 95814 18 BY: MATTHEW CAMPBELL, ESQ. 19 NATURAL RESOURCES DEFENSE COUNCIL: 20 HAMILTON CANDEE, ESQ. 71 Stevenson Street 21 San Francisco, California 94105 22 ARVIN-EDISON WATER STORAGE DISTRICT, et al.: 23 DOOLEY HERR & WILLIAMS 3500 West Mineral King Avenue, Suite C 24 Visalia, California 93191 BY: DANIEL M. DOOLEY, ESQ. 25 CAPITOL REPORTERS (916) 923-5447 8773 1 REPRESENTATIVES 2 SACRAMENTO MUNICIPAL UTILITY DISTRICT: 3 LESLIE A. DUNSWORTH, ESQ. 4 6201 S Street Sacramento, California 95817 5 SOUTH SAN JOAQUIN IRRIGATION DISTRICT, et al.: 6 BRAY, GEIGER, RUDQUIST & NUSS 7 311 East Main Street, 4th Floor Stockton, California 95202 8 BY: STEVEN P. EMRICK, ESQ. 9 EAST BAY MUNICIPAL UTILITY DISTRICT: 10 EBMUD OFFICE OF GENERAL COUNSEL 375 Eleventh Street 11 Oakland, California 94623 BY: FRED ETHERIDGE, ESQ. 12 GOLDEN GATE AUDUBON SOCIETY: 13 ARTHUR FEINSTEIN 14 2530 San Pablo Avenue, Suite G Berkeley, California 94702 15 CONAWAY CONSERVANCY GROUP: 16 UREMOVIC & FELGER 17 P.O. Box 5654 Fresno, California 93755 18 BY: WARREN P. FELGER, ESQ. 19 THOMES CREEK WATER ASSOCIATION: 20 THOMES CREEK WATERSHED ASSOCIATION P.O. Box 2365 21 Flournoy, California 96029 BY: LOIS FLYNNE 22 COURT APPOINTED REPS OF WESTLANDS WD AREA 1, et al.: 23 LAW OFFICES OF SMILAND & KHACHIGIAN 24 601 West Fifth Street, Seventh Floor Los Angeles, California 90075 25 BY: CHRISTOPHER G. FOSTER, ESQ. CAPITOL REPORTERS (916) 923-5447 8774 1 REPRESENTATIVES 2 CITY AND COUNTY OF SAN FRANCISCO: 3 OFFICE OF THE CITY ATTORNEY 4 1390 Market Street, Sixth Floor San Francisco, California 94102 5 BY: DONN W. FURMAN, ESQ. 6 CAMP FAR WEST IRRIGATION DISTRICT, et al.: 7 DANIEL F. GALLERY, ESQ. 926 J Street, Suite 505 8 Sacramento, California 95814 9 BOSTON RANCH COMPANY, et al.: 10 J.B. BOSWELL COMPANY 101 West Walnut Street 11 Pasadena, California 91103 BY: EDWARD G. GIERMANN 12 SAN JOAQUIN RIVER GROUP AUTHORITY, et al.: 13 GRIFFIN, MASUDA & GODWIN 14 517 East Olive Street Turlock, California 95381 15 BY: ARTHUR F. GODWIN, ESQ. 16 NORTHERN CALIFORNIA WATER ASSOCIATION: 17 RICHARD GOLB 455 Capitol Mall, Suite 335 18 Sacramento, California 95814 19 PLACER COUNTY WATER AGENCY, et al.: 20 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 400 Capitol Mall, 27th Floor 21 Sacramento, California 95814 BY: JANET GOLDSMITH, ESQ. 22 ENVIRONMENTAL DEFENSE FUND: 23 THOMAS J. GRAFF, ESQ. 24 5655 College Avenue, Suite 304 Oakland, California 94618 25 CAPITOL REPORTERS (916) 923-5447 8775 1 REPRESENTATIVES 2 CALAVERAS COUNTY WATER DISTRICT: 3 SIMON GRANVILLE 4 P.O. Box 846 San Andreas, California 95249 5 CHOWCHILLA WATER DISTRICT, et al.: 6 GREEN, GREEN & RIGBY 7 P.O. Box 1019 Madera, California 93639 8 BY: DENSLOW GREEN, ESQ. 9 CALIFORNIA FARM BUREAU FEDERATION: 10 DAVID J. GUY, ESQ. 2300 River Plaza Drive 11 Sacramento, California 95833 12 SANTA CLARA VALLEY WATER DISTRICT: 13 MORRISON & FORESTER 755 Page Mill Road 14 Palo Alto, California 94303 BY: KEVIN T. HAROFF, ESQ. 15 CITY OF SHASTA LAKE: 16 ALAN N. HARVEY 17 P.O. Box 777 Shasta Lake, California 96019 18 COUNTY OF STANISLAUS: 19 MICHAEL G. HEATON, ESQ. 20 926 J Street Sacramento, California 95814 21 GORRILL LAND COMPANY: 22 GORRILL LAND COMPANY 23 P.O. Box 427 Durham, California 95938 24 BY: DON HEFFREN 25 CAPITOL REPORTERS (916) 923-5447 8776 1 REPRESENTATIVES 2 SOUTH DELTA WATER AGENCY: 3 JOHN HERRICK, ESQ. 4 3031 West March Lane, Suite 332 East Stockton, California 95267 5 COUNTY OF GLENN: 6 NORMAN Y. HERRING 7 525 West Sycamore Street Willows, California 95988 8 REGIONAL COUNCIL OF RURAL COUNTIES: 9 MICHAEL B. JACKSON 10 1020 Twelfth Street, Suite 400 Sacramento, California 95814 11 DEER CREEK WATERSHED CONSERVANCY: 12 JULIE KELLY 13 P.O. Box 307 Vina, California 96092 14 DELTA TRIBUTARY AGENCIES COMMITTEE: 15 MODESTO IRRIGATION DISTRICT 16 P.O. Box 4060 Modesto, California 95352 17 BY: BILL KETSCHER 18 SAVE THE SAN FRANCISCO BAY ASSOCIATION: 19 SAVE THE BAY 1736 Franklin Street 20 Oakland, California 94612 BY: CYNTHIA L. KOEHLER, ESQ. 21 BATTLE CREEK WATERSHED LANDOWNERS: 22 BATTLE CREEK WATERSHED CONSERVANCY 23 P.O. Box 606 Manton, California 96059 24 25 CAPITOL REPORTERS (916) 923-5447 8777 1 REPRESENTATIVES 2 BUTTE SINK WATERFOWL ASSOCIATION, et al.: 3 MARTHA H. LENNIHAN, ESQ. 4 455 Capitol Mall, Suite 300 Sacramento, California 95814 5 CITY OF YUBA CITY: 6 WILLIAM P. LEWIS 7 1201 Civic Center Drive Yuba City, California 95993 8 BROWNS VALLEY IRRIGTAION DISTRICT, et al.: 9 BARTKIEWICZ, KRONICK & SHANAHAN 10 1011 22nd Street, Suite 100 Sacramento, California 95816 11 BY: ALAN B. LILLY, ESQ. 12 CONTRA COSTA WATER DISTRICT: 13 BOLD, POLISNER, MADDOW, NELSON & JUDSON 500 Ygnacio Valley Road, Suite 325 14 Walnut Creek, California 94596 BY: ROBERT B. MADDOW, ESQ. 15 GRASSLAND WATER DISTRICT: 16 DON MARCIOCHI 17 22759 South Mercey Springs Road Los Banos, California 93635 18 SAN LUIS CANAL COMPANY: 19 FLANAGAN, MASON, ROBBINS & GNASS 20 3351 North M Street, Suite 100 Merced, California 95344 21 BY: MIICHAEL L. MASON, ESQ. 22 STONY CREEK BUSINESS AND LAND OWNERS COALITION: 23 R.W. MCCOMAS 4150 County Road K 24 Orland, California 95963 25 CAPITOL REPORTERS (916) 923-5447 8778 1 REPRESENTATIVES 2 TRI-DAM POWER AUTHORITY: 3 TUOLUMNE UTILITIES DISTRICT 4 P.O. Box 3728 Sonora, California 95730 5 BY: TIM MCCULLOUGH 6 DELANO-EARLIMART IRRIGATION DISTRICT, et al.: 7 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 8 Oroville, California 95965 BY: JEFFREY A. MEITH, ESQ. 9 HUMANE FARMING ASSOCIATION: 10 BRADLEY S. MILLER. 11 1550 California Street, Suite 6 San Francisco, California 94109 12 CORDUA IRRIGATION DISTRICT, et al.: 13 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 14 P.O. Box 1679 Oroville, California 95965 15 BY: PAUL R. MINASIAN, ESQ. 16 EL DORADO COUNTY WATER AGENCY: 17 DE CUIR & SOMACH 400 Capitol Mall, Suite 1900 18 Sacramento, California 95814 BY: DONALD B. MOONEY, ESQ. 19 GLENN COUNTY FARM BUREAU: 20 STEVE MORA 21 501 Walker Street Orland, California 95963 22 MODESTO IRRIGATION DISTRICT: 23 JOEL MOSKOWITZ 24 P.O. Box 4060 Modesto, California 95352 25 CAPITOL REPORTERS (916) 923-5447 8779 1 REPRESENTATIVES 2 PACIFIC GAS & ELECTRIC: 3 RICHARD H. MOSS, ESQ. 4 P.O. Box 7442 San Francisco, California 94120 5 CENTRAL DELTA WATER AGENCY, et al.: 6 NOMELLINI, GRILLI & MCDANIEL 7 P.O. Box 1461 Stockton, California 95201 8 BY: DANTE JOHN NOMELLINI, ESQ. and 9 DANTE JOHN NOMELLINI, JR., ESQ. 10 TULARE LAKE BASIN WATER STORAGE UNIT: 11 MICHAEL NORDSTROM 1100 Whitney Avenue 12 Corcoran, California 93212 13 AKIN RANCH, et al.: 14 DOWNEY, BRAND, SEYMOUR & ROHWER 555 Capitol Mall, 10th Floor 15 Sacramento, California 95814 BY: KEVIN M. O'BRIEN, ESQ. 16 OAKDALE IRRIGATION DISTRICT: 17 O'LAUGHLIN & PARIS 18 870 Manzanita Court, Suite B Chico, California 95926 19 BY: TIM O'LAUGHLIN, ESQ. 20 SIERRA CLUB: 21 JENNA OLSEN 85 Second Street, 2nd Floor 22 San Francisco, California 94105 23 YOLO COUNTY BOARD OF SUPERVISORS: 24 LYNNEL POLLOCK 625 Court Street 25 Woodland, California 95695 CAPITOL REPORTERS (916) 923-5447 8780 1 REPRESENTATIVES 2 PATRICK PORGENS & ASSOCIATES: 3 PATRICK PORGENS 4 P.O. Box 60940 Sacramento, California 95860 5 BROADVIEW WATER DISTRICT, et al.: 6 DIANE RATHMANN 7 P.O. Box 156 Dos Palos, California 93620 8 FRIENDS OF THE RIVER: 9 BETSY REIFSNIDER 10 128 J Street, 2nd Floor Sacramento, California 95814 11 MERCED IRRIGATION DISTRICT: 12 FLANAGAN, MASON, ROBBINS & GNASS 13 P.O. Box 2067 Merced, California 95344 14 BY: KENNETH M. ROBBINS, ESQ. 15 CENTRAL SAN JOAQUIN WATER CONSERVATION DISTRICT: 16 REID W. ROBERTS, ESQ. 311 East Main Street, Suite 202 17 Stockton, California 95202 18 METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA: 19 JAMES F. ROBERTS P.O. Box 54153 20 Los Angeles, California 90054 21 SACRAMENTO AREA WATER FORUM: 22 CITY OF SACRAMENTO 980 9th Street, 10th Floor 23 Sacramento, California 95814 BY: JOSEPH ROBINSON, ESQ. 24 25 CAPITOL REPORTERS (916) 923-5447 8781 1 REPRESENTATIVES 2 TUOLUMNE RIVER PRESERVATION TRUST: 3 NATURAL HERITAGE INSTITUTE 4 114 Sansome Street, Suite 1200 San Francisco, California 94194 5 BY: RICHARD ROOS-COLLINS, ESQ. 6 CALIFORNIA DEPARTMENT OF WATER RESOURCES: 7 DAVID A. SANDINO, ESQ. P.O. Box 942836 8 Sacramento, California 94236 9 FRIANT WATER USERS AUTHORITY: 10 GARY W. SAWYERS, ESQ. 575 East Alluvial, Suite 101 11 Fresno, California 93720 12 KERN COUNTY WATER AGENCY: 13 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 400 Captiol Mall, 27th Floor 14 Sacramento, California 95814 BY: CLIFFORD W. SCHULZ, ESQ. 15 SAN JOAQUIN RIVER EXCHANGE CONTRACTORS: 16 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 17 P.O. Box 1679 Oroville, California 95965 18 BY: MICHAEL V. SEXTON, ESQ. 19 SAN JOAQUIN COUNTY: 20 NEUMILLER & BEARDSLEE P.O. Box 20 21 Stockton, California 95203 BY: THOMAS J. SHEPHARD, SR., ESQ. 22 CITY OF STOCKTON: 23 DE CUIR & SOMACH 24 400 Capitol Mall, Suite 1900 Sacramento, California 95814 25 BY: PAUL S. SIMMONS, ESQ. CAPITOL REPORTERS (916) 923-5447 8782 1 REPRESENTATIVES 2 ORLAND UNIT WATER USERS' ASSOCIATION: 3 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 4 P.O. Box 1679 Oroville, California 95965 5 BY: M. ANTHONY SOARES, ESQ. 6 GLENN-COLUSA IRRIGATION DISTRICT: 7 DE CUIR & SOMACH 400 Capitol Mall, Suite 1900 8 Sacramento, California 95814 BY: STUART L. SOMACH, ESQ. 9 NORTH SAN JOAQUIN WATER CONSERVATION DISTRICT: 10 JAMES F. SORENSEN CONSULTING CIVIL ENGINEER, INC.: 11 209 South Locust Street Visalia, California 93279 12 BY: JAMES F. SORENSEN 13 PARADISE IRRIGATION DISTRICT: 14 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 15 Oroville, California 95965 BY: WILLIAM H. SPRUANCE, ESQ. 16 COUNTY OF COLUSA: 17 DONALD F. STANTON, ESQ. 18 1213 Market Street Colusa, California 95932 19 COUNTY OF TRINITY: 20 COUNTY OF TRINITY - NATURAL RESOURCES 21 P.O. Box 156 Hayfork, California 96041 22 BY: TOM STOKELY 23 CITY OF REDDING: 24 JEFFERY J. SWANSON, ESQ. 2515 Park Marina Drive, Suite 102 25 Redding, California 96001 CAPITOL REPORTERS (916) 923-5447 8783 1 REPRESENTATIVES 2 TULARE IRRIGATION DISTRICT: 3 TEHEMA COUNTY RESOURCE CONSERVATION DISTRICT 4 2 Sutter Street, Suite D Red Bluff, California 96080 5 BY: ERNEST E. WHITE 6 STATE WATER CONTRACTORS: 7 BEST BEST & KREIGER P.O. Box 1028 8 Riverside, California 92502 BY: CHARLES H. WILLARD 9 COUTNY OF TEHEMA, et al.: 10 COUNTY OF TEHEMA BOARD OF SUPERVISORS 11 P.O. Box 250 Red Bluff, California 96080 12 BY: CHARLES H. WILLARD 13 MOUNTAIN COUNTIES WATER RESOURCES ASSOCIATION: 14 CHRISTOPHER D. WILLIAMS P.O. Box 667 15 San Andreas, California 95249 16 JACKSON VALLEY IRRIGATION DISTRICT: 17 HENRY WILLY 6755 Lake Amador Drive 18 Ione, California 95640 19 SOLANO COUNTY WATER AGENCY, et al.: 20 HERUM, CRABTREE, DYER, ZOLEZZI & TERPSTRA 2291 West March Lane, S.B. 100 21 Stockton, California 95207 BY: JEANNE M. ZOLEZZI, ESQ. 22 23 ---oOo--- 24 25 CAPITOL REPORTERS (916) 923-5447 8784 1 I N D E X 2 ---oOo--- 3 4 PAGE 5 OPENING OF HEARING 8786 6 AFTERNOON SESSION 8895 7 END OF PROCEEDINGS 9014 8 CROSS-EXAMINATION OF SOUTH DELTA WATER AGENCY: 9 TIM O'LAUGHLIN 8786 10 REDIRECT EXAMINATION OF SOUTH DELTA WATER AGENCY: 11 DR. GERALD ORLOB 8943 12 RECROSS-EXAMINATION OF SOUTH DELTA WATER AGENCY: 13 TIM O'LAUGHLIN 8955 14 15 ---oOo--- 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 8785 1 TUESDAY, JANUARY 19, 1999, 9:00 A.M. 2 SACRAMENTO, CALIFORNIA 3 ---oOo--- 4 C.O. STUBCHAER: Good morning. This is the 5 resumption of the Bay-Delta Water Rights Hearing, Phase 6 II-A. My mic is on. Can you hear me back there? 7 MR. NOMELLINI: No, not very well. 8 C.O. STUBCHAER: All right. 9 MR. NOMELLINI: Heard that. 10 C.O. STUBCHAER: Anyway, we are going to resume the 11 cross-examination of the South Delta Water Agency panel by 12 Mr. O'Laughlin. 13 Mr. O'Laughlin. 14 MR. O'LAUGHLIN: Thank you, Chairman Stubchaer. 15 ---oOo--- 16 CROSS-EXAMINATION OF SOUTH DELTA WATER AGENCY 17 BY SAN JOAQUIN RIVER GROUP AUTHORITY 18 BY TIM O'LAUGHLIN 19 MR. O'LAUGHLIN: Good morning, Mr. Hildebrand, 20 Dr. Orlob, Mr. Herrick. Where we left off last week was we 21 were asking some questions about the barriers being 22 installed prior to the April 15th pulse-flow period. 23 Would you mind, Mr. Herrick, putting on the 24 overhead again -- and this is South Delta Water Exhibit -- 25 MR. HERRICK: It would be 56. CAPITOL REPORTERS (916) 923-5447 8786 1 MR. O'LAUGHLIN: Thank you. We finished with the 2 time period prior to April 15th. Under your proposal, do 3 you propose to install the Head of Old River Barrier and 4 have it operational from April 15th to May 15th? 5 MR. HILDEBRAND: We assume that would be the case, 6 yes. Although, the results would be the same as long as 7 the three tidal barriers are operating. 8 MR. O'LAUGHLIN: And that gets to my question: Why 9 under your proposal are you going to install the Head of 10 Old River Barrier if the tidal barriers are doing what you 11 said they would be doing prior to the April 15th time 12 period? 13 MR. HILDEBRAND: Because the fish agencies want to 14 have the head of Old River barrier. It is true under some 15 situations, which occur largely later in the year when we 16 have very high diversions and the tidal excursion is not 17 very great, that you don't always capture enough water with 18 the tidal barriers to get us through the low-tide periods. 19 So even though over a period of a few days you 20 almost always would have an outflow from the Old River, 21 Middle River, Grantline channels into the San Joaquin, 22 which would act as a hydraulic barrier, there would be 23 periods when there might be some fish flowing in. But that 24 would probably only occur during this early period in the 25 event that we have low rainfall, heavy irrigation. CAPITOL REPORTERS (916) 923-5447 8787 1 MR. O'LAUGHLIN: Okay. So, then, let's say we're in 2 a below normal or dry year, the irrigators within South 3 Delta are pumping. So it might be a good idea at that time 4 to have the head of Old River barrier in from April 15th to 5 May 15th? 6 MR. HILDEBRAND: It might benefit the fishery and we 7 have no objection to that. 8 MR. O'LAUGHLIN: All right. Then, briefly, now we're 9 done with the pulse-flow period on or about May 15th. What 10 is in your program, then, that is going to provide the 11 protection for the salmon smolt outmigration after May 12 15th? 13 MR. HILDEBRAND: The use of the tidal barriers as I 14 just explained will, most of the time, will provide a 15 hydraulic barrier that keeps the downstream migrants from 16 going through lower channels over to the pumps. And keeps 17 them from the route down to Stockton. And the panel of 18 biologists indicated that this was a desirable thing. In 19 fact, Marty Kjelson even quantifies the benefits of 20 downstream flow at Stockton. 21 MR. O'LAUGHLIN: Okay. So, then, your understanding 22 of your proposal would be, then, that if we're not getting 23 flow into the old -- the head of Old River, then the fish 24 will stay with the flow and move downstream past the City 25 of Stockton? CAPITOL REPORTERS (916) 923-5447 8788 1 MR. HILDEBRAND: Well, down to Stockton at least, 2 yes. 3 MR. O'LAUGHLIN: Okay. We started on this subject 4 last week and we got a little sidetracked. And I said over 5 the weekend it would probably be a good idea if you and 6 Dr. Orlob would go back and look at South Delta Water 7 Agency Exhibit Number 12 in regards to the testimony that 8 you prepared for the hearings. 9 Have you had an opportunity to do that, 10 Mr. Hildebrand? 11 MR. HILDEBRAND: I did discuss it with JoAnne Kipps, 12 who actually did the modeling, discussed it with her over 13 the phone. She, like me, figured that there was such a 14 multitude of embedded assumptions in these models that it's 15 difficult for anybody to remember all of them without 16 having them in front of them. 17 In fact, one of the problems I think we have with 18 some of this modeling is that we look at the results and 19 aren't cognizant of all of the various influences that are 20 in those models. So there's a difference among the various 21 models involved here. 22 When you go to compare Mr. Steiner's modeling with 23 the two models that are involved in the SDWA 12, each of 24 those models has limitations, each of it has different 25 assumptions buried within them. None of the models can CAPITOL REPORTERS (916) 923-5447 8789 1 give an accurate prediction of the future for various 2 reasons. But they can do a pretty fair job of modeling the 3 difference between results, if you have one management 4 scenario versus another. And that's what we were trying to 5 do. 6 Now, in the case of the SDWA 12, we wanted to 7 examine the proposition that you could modify the flow 8 salinity objective at Vernalis by upstream management in 9 such a way as to permit a more efficient overall use of 10 water and a better control of salinity. 11 There's a model, SJRIO, that was developed by Les 12 Grover and the Regional Board, which we use for that 13 purpose. It's the only model at the present time, to my 14 knowledge, that can make that kind of analysis. Now, that 15 model in turn doesn't cover all of the hydrology of the 16 entire river system and the exports that result in the 17 drainage to the river system. So we had to use them in 18 combination. 19 Now, when we analyze the base -- made the base 20 case analysis, the DWR model, which is more like 21 Mr. Steiner's model and has a fixed flow salinity 22 relationship to Vernalis, indicated that our program would 23 not overdraft New Melones. The SJRIO Model, having a 24 little different input, thought there would be some 25 overdraft. CAPITOL REPORTERS (916) 923-5447 8790 1 But after a lot of discussion by the oversight 2 group of modelers it was decided that this modest 3 discrepancy wasn't important since we were going to look at 4 differences, and since the report enables us to look at the 5 difference rather than the absolute forecast. 6 MR. O'LAUGHLIN: Okay. Well, let me go to Dr. Orlob 7 first. 8 Dr. Orlob, did you have a chance to review the 9 SJRIO Model over the weekend? 10 DR. ORLOB: I looked at the document that was 11 submitted as Exhibit 12, I believe. 12 MR. O'LAUGHLIN: Okay. What part of SJRIO, Exhibit 13 Number 12, have you relied upon for your presentation to 14 the State Water Resources Control Board set forth in your 15 testimony? 16 DR. ORLOB: I haven't used this specific exhibit as a 17 part of my presentation. 18 MR. O'LAUGHLIN: So your involvement in testifying, 19 if at all, on the SJRIO would be your involvement from a 20 technical advisor on the technical committee to the SJRIO 21 Model; is that correct? 22 DR. ORLOB: That's correct. 23 MR. O'LAUGHLIN: Now, back to you, Mr. Hildebrand, 24 since we got that clarified with Dr. Orlob. Rather than 25 get real technical, what is it about the SJRIO Model in CAPITOL REPORTERS (916) 923-5447 8791 1 Exhibit Number 12 that you relied upon in coming forth with 2 your testimony in South Delta Water Agency Exhibit Number 3 51? What are you relying on in this document? 4 MR. HILDEBRAND: I'm relying on the output indicated 5 by the SDWA 12 report and the indications that that has as 6 to the potential for increased overall water use efficiency 7 by controlling the salinity flow relationship at Vernalis, 8 or upstream of Vernalis, as opposed to just assuming that 9 it could be conformed to a prearranged ratio. 10 MR. O'LAUGHLIN: Is there anything else that you 11 relied upon in the San Joaquin -- the SJRIO report, Exhibit 12 Number 12, in preparation for your testimony? 13 MR. HILDEBRAND: I'd have to -- 14 MR. O'LAUGHLIN: Take your time. 15 MR. HILDEBRAND: -- thumb through my testimony to see 16 whether there's something else. 17 MR. O'LAUGHLIN: Go ahead. 18 MR. HILDEBRAND: Well, on cursory review here I don't 19 recall that there was any use made of the SJRIO which 20 affected my testimony other than as it came out of this 21 report. 22 MR. O'LAUGHLIN: Now, in Exhibit Number 12 what 23 outputs should we look at as indicated by -- in the exhibit 24 to glean the information that you think we should gleam 25 from this report? CAPITOL REPORTERS (916) 923-5447 8792 1 MR. HILDEBRAND: Would you like to discuss Table 7 in 2 the report? 3 MR. O'LAUGHLIN: Yeah, if that's where we should 4 start. That would be a good place to start, yes. 5 MR. HILDEBRAND: This table, which as we noted 6 earlier, is not very reader friendly. If you compare the 7 base run numbers that are up in the upper left-hand part of 8 the table, with run number 16, which is the one we focused 9 on, that run assumes that there will be recirculation to 10 provide the supplemental fish flows. 11 And it also assumes that the drainers would be 12 able to withhold 50 percent of their drainage that they 13 would normally release to the river during the March 14 1st/April 15th period. And then release that during the 15 pulse flow along with the drainage that would, otherwise, 16 have occurred during that time. Now, if you look at the 17 upper left-hand one here, you'll see that -- 18 MR. O'LAUGHLIN: That the base run, Mr. Hildebrand? 19 MR. HILDEBRAND: Base run, yes. That the sum of the 20 releases required in a maximum year were 165,000 acre-feet. 21 Corresponding number in run 16 is 153,000 acre-feet. 22 Showing a savings of 12,000 acre-feet in releases for the 23 purpose of water quality. That, of course, is 24 superimposed, then, on the reduction in releases from the 25 San Joaquin River system as a whole, which was about CAPITOL REPORTERS (916) 923-5447 8793 1 110,000 -- 105,000 I think in that case. 2 As we discussed earlier, Dr. Orlob and I believe 3 that the estimate of the savings on water quality releases 4 are substantially underestimated. Dr. Orlob can expand on 5 this relative to monthly steps and so forth. But a large 6 part of it is because the SJRIO, combined with the other 7 one, were unable to analyze the salinity benefit that 8 arises from the use of the tidal barriers. 9 Those barriers reduce the salinity in the 10 Delta-Mendota Canal and that in turn reduces the salinity 11 over time that drains into the San Joaquin River from the 12 service area. Dr. Orlob did make an analysis some time 13 ago, which was presented to this Board about the affect of 14 the barriers in reducing the salinities in the 15 Delta-Mendota Canal, consequently, the salt load in that 16 canal. And it would be possible probably to iterate over 17 time that with the SJRIO to indicate that benefit, but the 18 benefit is not included in the report. 19 MR. O'LAUGHLIN: Now, one of the parts of the report 20 is tile and drainage -- tile drainage and wetland discharge 21 reoperation; is that correct? 22 MR. HILDEBRAND: That's right. 23 MR. O'LAUGHLIN: Now, even regardless of whether or 24 not we have recirculation, do you believe that tile 25 drainage and wetland discharge reoperation may have water CAPITOL REPORTERS (916) 923-5447 8794 1 savings benefits aside from using recirculation water? 2 MR. HILDEBRAND: I suppose theoretically, yes. But 3 the problem with that, as I explained earlier, is that if 4 you manipulate that in the manner we propose to take 5 advantage of the dilution and the pulse flow, you'll 6 increase the salinity and the selenium concentration in the 7 upper portion of the main stem of the river, just 8 downstream of the Merced or downstream of Salt and Mud 9 Sloughs, if you don't also recirculate. 10 Of course, we get a benefit on selenium during the 11 period when we're holding the drainage prior to April 15th, 12 but we'll be increasing the total salt load that goes into 13 the river from April 15th to May 15th. And if the dilution 14 of that salt load doesn't occur until we receive the FERC 15 flows from the Tuolumne and the water quality release flows 16 from Stanislaus, you have a severe detriment in that upper 17 reach of river during the pulse-flow period. 18 MR. O'LAUGHLIN: Well, one of the first things, 19 though, let's make sure we're clear about this. The SJRIO 20 does not look at the selenium, correct? 21 MR. HILDEBRAND: No. 22 MR. O'LAUGHLIN: Okay. So -- 23 MR. HILDEBRAND: However, they -- 24 C.O. STUBCHAER: Excuse me. Was that answer: No, 25 it's not correct, or it does not look at selenium? CAPITOL REPORTERS (916) 923-5447 8795 1 MR. HILDEBRAND: It did not address selenium 2 directly. However, the dilutions provided for salinity 3 would also apply to dilution of selenium. 4 MR. O'LAUGHLIN: Okay. Now, in run number four, 5 looking at run number four on Table Number 7, it's my 6 understanding if run number four is correct, this is where 7 the water is withheld until later in the year and then is 8 released in the May time period. Run number four down in 9 the corner, Alex. 10 MR. HILDEBRAND: Yes. However, in our proposal we're 11 not proposing to do things other than run number 16. 12 MR. O'LAUGHLIN: Okay. And -- 13 MR. HILDEBRAND: Run number 16 does not presume that 14 we'll alter the drainage off the wetlands, because that 15 would take some facilities which have not been built. And 16 that could be done. But since it hasn't been done and 17 since we don't know whether those agricultural drainers can 18 exercise a 100-percent control for the purpose of our 19 analysis, we just looked at the case where the agricultural 20 drainage is controlled to a 50-percent level. And we did 21 not assume the other. The chart does address results that 22 could be obtained if you did these other things, but we're 23 not alleging that they're necessarily possible. 24 MR. O'LAUGHLIN: Now, why are you proposing run 25 number 16 and not run number 5? And what is the difference CAPITOL REPORTERS (916) 923-5447 8796 1 between those two? 2 MR. HILDEBRAND: Run number 5 has recirculation, but 3 does not include the drainage control. 4 MR. O'LAUGHLIN: So if we're not going to have 5 drainage control, isn't that closer to what you just said 6 not imposing standards on discharges of tile drainage on 7 wetlands discharge? 8 MR. HILDEBRAND: No. We are proposing that you have 9 the partial control of ag drainage, but not included in 10 wetlands drainage control because it requires some 11 facilities, which could be built probably not very 12 expensive. But since they're not there at the present time 13 and we're urging that this proposal be put out for trial, 14 promptly, we don't want to include things that would 15 require any facilities in the initial proposal. Further 16 developments of this general concept are certainly possible 17 in various ways. 18 MR. O'LAUGHLIN: Now, we're going to get involved a 19 little bit in what was some of the way the modeling was set 20 up. 21 Is it your understanding that when the model was 22 set up that the modelers were given an add-water component 23 from Model 468 to add into the San Joaquin -- the SJRIO 24 Model as the amount of water that would need to be added? 25 MR. HILDEBRAND: Well, as I said a little bit ago, CAPITOL REPORTERS (916) 923-5447 8797 1 there's such a multitude of assumptions buried in these, I 2 can't say absolutely. My recollection is that 468 did not 3 include full compliance with the Vernalis salinity 4 standards. So we went to 469 which did. And the other 5 assumptions in 468 remain the same. 6 MR. O'LAUGHLIN: Okay. In regards to 469, though, do 7 you know if, in fact, when the modelers started out that 8 they were given a component of the additional water, the 9 add water that would be needed to meet the salinity 10 standards at Vernalis? 11 MR. HILDEBRAND: Could you repeat the question, 12 please? 13 MR. O'LAUGHLIN: Yes. From the Model 469, the DWRSIM 14 469, was an add-water table provided to the SJRIO modelers 15 so that they could ascertain how much water would be needed 16 to add to the system in order to meet the water quality 17 standards at Vernalis? 18 MR. HILDEBRAND: Well, as I explained, the base case 19 assumptions that went into 469, as I recall them, did 20 anticipate there was sufficient water available to meet the 21 salinity standard without overdrafting. 22 The SJRIO Model, because it has somewhat different 23 underlying assumptions as regards flow salinity, indicated 24 that it didn't 100 percent agree with that. But as I 25 explained, we did not feel that the discrepancy was such CAPITOL REPORTERS (916) 923-5447 8798 1 that it would interfere with an examination of the 2 differences in burden on New Melones that would arise from 3 managing the flow provision and the drainage release in 4 such a way as to increase the efficiency of the overall 5 system. 6 MR. O'LAUGHLIN: Okay. Let me try to get at this 7 another way. How was it set up to ascertain the amount of 8 water necessary for recirculation in any given year? How 9 did that number fall out? 10 MR. HILDEBRAND: Whatever it took to meet the 11 Vernalis flow standard. 12 MR. O'LAUGHLIN: And how did SJRIO do that? 13 MR. HILDEBRAND: That was done primarily with the DWR 14 Model. 15 MR. O'LAUGHLIN: Okay. So, then, the DWR Model would 16 figure out what the amount of water was needed to meet the 17 flow requirements at Vernalis at -- taken add water table 18 given to SJRIO and say, you need this amount of water for 19 recirculation in order to meet the standards; is that 20 correct? 21 MR. HILDEBRAND: Basically, I think that was it. And 22 then the SJRIO analyzed the affect of that on the burden on 23 New Melones to meet the salinity standard, but as I 24 indicated, was unable to iterate the benefit that arises 25 from the use of the tidal barriers. CAPITOL REPORTERS (916) 923-5447 8799 1 And I believe Dr. Orlob can explain better than I 2 can the problems that had to do with the monthly time step, 3 use of a monthly time step rather than realtime. 4 MR. O'LAUGHLIN: Now, in Table Number 5 there is a 5 breakdown of the average DMC recirculation contribution per 6 water year type. 7 Do you have that in front of you, Mr. Hildebrand? 8 MR. HILDEBRAND: I'm getting it. 9 MR. O'LAUGHLIN: Okay. 10 C.O. STUBCHAER: Excuse me. Are there any overheads 11 of these exhibits? 12 MR. HERRICK: I don't have any. 13 MR. O'LAUGHLIN: No. 14 C.O. STUBCHAER: All right. 15 MR. O'LAUGHLIN: Now, on Table Number 5 of the SJRIO, 16 why is it that averages were used? 17 MR. HILDEBRAND: You mean average for each year type? 18 MR. O'LAUGHLIN: Yeah. Why did you use average 19 numbers? I know, based on our past discussions, you have a 20 strong distaste for averages. Why was -- why were they 21 used here? 22 MR. HILDEBRAND: The modeling could provide this on a 23 much more specific basis. In other words, would give 24 inflows, but the table would be enormous if we did that. 25 And it was just use the averages for illustration. CAPITOL REPORTERS (916) 923-5447 8800 1 MR. O'LAUGHLIN: Okay. Well, so if I understand this 2 table correctly, in a wet year, let's take a wet year. 3 That's one of the lower years where we're making average 4 water available. It's -- we make 14,000 acre-feet 5 available in April on average, and then in May we'd make 6 22,000 acre-feet available on average. 7 MR. HILDEBRAND: Yes. 8 MR. O'LAUGHLIN: Okay. So, then, on average over the 9 time period -- I know it bumps up a little bit, there must 10 be a rounding question here or something, it comes out to 11 be about 37,000 acre-feet during that time period? 12 MR. HILDEBRAND: Yeah. Bear in mind that's for a wet 13 year and we don't need very much in a wet year. Sometimes 14 in a very wet year we don't need any. 15 MR. O'LAUGHLIN: Okay. So in very wet years we don't 16 need any, and in some wet years we need just a little; is 17 that correct? 18 MR. HILDEBRAND: That's right. 19 MR. O'LAUGHLIN: Okay. Now, in this example when we 20 use wet, above normal, normal, dry and critically dry for 21 the table, is that the 60/20/20 index? 22 MR. HILDEBRAND: Yes. And if you'll drop down and 23 look at the normal year, that's what -- you'll see that 24 that's the kind of a year that, on average, takes the 25 largest amount of supplementary flow. And the average CAPITOL REPORTERS (916) 923-5447 8801 1 supplementary flow is 105,000 acre-feet, which can be 2 provided from recirculation. 3 Some years it would be somewhat more than that and 4 some years a little less, but it's classified as a normal 5 year. That gives you the magnitude of the savings in 6 demand on the San Joaquin River system by supplying these 7 flows without drawing down the San Joaquin River system. 8 MR. O'LAUGHLIN: Okay. Now, looking at this, I want 9 to stick with the wet year a little bit. My understanding, 10 then, is that we would get a table from DWRSIM, DWRSIM 11 would say we need to have an additional 37,000 acre-feet of 12 water to meet the standards. And then what the 13 recirculation, the SJRIO would do, would be to run that 14 37,000 acre-feet through the system in order to meet the 15 standards. Is that correct? 16 MR. HILDEBRAND: Basically, I think that's correct. 17 I don't know the DWRSIM furnished a table. It probably 18 furnished an output which was more detailed than that. 19 C.O. BROWN: Mr. Chairman? 20 C.O. STUBCHAER: Mr. Brown. 21 C.O. BROWN: Clarify for me if that's 37,000 22 acre-feet of water that's recirculated, or if that's 37,000 23 acre-feet that's dedicated for the recirculation. 24 MR. HILDEBRAND: It's 37,000 that would be 25 recirculated and thereby substitute for releases out of the CAPITOL REPORTERS (916) 923-5447 8802 1 side tributaries. 2 C.O. BROWN: But the amount of water that would be 3 dedicated to the system to do that would be divided by 31 4 days? 5 MR. HILDEBRAND: That would give you an average over 6 that period. But the -- you're not dedicating any water 7 in the sense of consuming water, or taking away from 8 anybody, it's just reused water. 9 C.O. BROWN: I understand that. I'm trying to figure 10 out how much that you're pulling out of the San Luis 11 Reservoir to make this happen. 12 MR. HILDEBRAND: Oh, the amount to pull out of the 13 reservoir would only be, roughly, 10 percent of this, 14 because all that does is prime the system. And you return 15 it at the end of the recycle period. 16 C.O. BROWN: So you're talking about using 3- to 17 4,000 acre-feet of water, but recirculating it to where it 18 totals 37,000? 19 MR. HILDEBRAND: That's right. 20 C.O. BROWN: Thank you, Mr. O'Laughlin. 21 MR. O'LAUGHLIN: Yeah, actually it's an interesting 22 concept. 23 Really the 37,000, as if you had a meter at 24 Vernalis that was spinning and keeping track of the amount 25 of water coming back through that point for recirculation, CAPITOL REPORTERS (916) 923-5447 8803 1 correct? 2 MR. HILDEBRAND: Physically I don't think you could 3 put a meter there, because it would mix up a lot of flows. 4 But you can measure how much you dropped into the river 5 through the Newman Wasteway and you then recapture that 6 same amount. 7 C.O. STUBCHAER: It's the purple-colored water. 8 MR. HILDEBRAND: Yeah, purple-colored water. If you 9 pick up all the dye and recirculate it, you've got it. 10 MR. O'LAUGHLIN: Well, let's go to an example of how 11 this might work. Can you put this on, Mr. Herrick. 12 We've had this marked for identification purposes, 13 San Joaquin River Group Authority Exhibit Number 29. I'll 14 represent this is a document I received from JoAnne from 15 the California Regional Water Quality Control Board. 16 JoAnne Kipps, I believe. Yes, JoAnne Kipps. Lots of 17 numbers on this. 18 If you could push it up, Mr. Herrick, I want to 19 get to the year 1993. Okay. 1993, can you see that? I 20 know the numbers are a little difficult to read there. 21 Mr. Hildebrand, can you see the numbers? 22 MR. HILDEBRAND: I can see the numbers, but I can't 23 see the headings on the columns. 24 C.O. STUBCHAER: They're months. 25 MR. O'LAUGHLIN: They're months. CAPITOL REPORTERS (916) 923-5447 8804 1 C.O. STUBCHAER: Starting in October, Mr. Hildebrand. 2 MR. O'LAUGHLIN: Starting in October and going 3 through the water year. Do you have a copy -- 4 MR. HILDEBRAND: Let me look at that again. This is 5 the water needed to meet the 1995 Water Quality Standards 6 at Vernalis. "Standards," is that flow and salinity, or 7 salinity or flow? 8 MR. O'LAUGHLIN: Both. 9 MR. HILDEBRAND: Both, combined requirement. 10 MR. O'LAUGHLIN: I'll represent to you that this is 11 the add-water table that we've been talking about that DWR 12 provided to JoAnne Kipps in order to make the SJRIO run. 13 Now, I'd like to focus on 1993, and let's see how 14 recirculation would work in 1993. Now, is it your 15 understanding that 1993 was a wet year? 16 MR. HILDEBRAND: I don't remember. 17 MR. O'LAUGHLIN: Okay. So if I told you 1993 was a 18 wet year, why don't we go with that assumption, okay, and 19 we'll confirm it later about whether or not 1993 was a wet 20 year? 21 MR. HILDEBRAND: Okay. 22 MR. O'LAUGHLIN: Okay. Now, you said earlier that 23 wet years normally don't have much additional water that's 24 needed in order to meet the standards at Vernalis and 25 yet -- CAPITOL REPORTERS (916) 923-5447 8805 1 MR. HILDEBRAND: No. I said the salinity standard at 2 Vernalis. 3 MR. O'LAUGHLIN: Okay, the salinity standard at 4 Vernalis. And, yet, in 1993 we have 311,000 acre-feet of 5 water being made available. 6 MR. HILDEBRAND: For what purpose? 7 MR. O'LAUGHLIN: Well, my question to you is: Do you 8 know if that was broken down between flow and water 9 quality? 10 MR. HILDEBRAND: Must have been in order to make use 11 of it. 12 MR. O'LAUGHLIN: Okay. Well, let's see how your 13 recirculation plan would work in 1993. Under this table, 14 if we're to assume that this table is correct, and we were 15 looking at the March time period there would be 34,000 16 acre-feet of additional add water, that's needed in the 17 system in order to meet the standards at Vernalis. Under 18 your plan, where would that 34,000 acre-feet of water come 19 from? 20 MR. HILDEBRAND: The 34,000 required to meet it would 21 come out of New Melones. 22 MR. O'LAUGHLIN: Okay. So that first number is New 23 Melones. Now, we're into April -- 24 MR. HILDEBRAND: This is in the absence of 25 recirculation. You're talking about our base case? CAPITOL REPORTERS (916) 923-5447 8806 1 MR. O'LAUGHLIN: No. I'm talking about what you're 2 going to do if we have recirculation in place and 1993 3 happens again. Okay. So under your plan where would you 4 get the 34,000 acre-feet in March? 5 MR. HILDEBRAND: In March, we would be withholding 6 half of the agriculture drainage that would have occurred 7 under the base case. And, therefore, we wouldn't need that 8 much in March. 9 MR. O'LAUGHLIN: Well, this is the add water that's 10 needed under DWRSIM. So this was included within the study 11 run as water that was added to the system in order to meet 12 the SJRIO. 13 So, why don't you tell me where you would get the 14 34,000 acre-feet under your recirculation plan? 15 MR. HERRICK: I'd object to the form of the question. 16 We don't disbelieve Mr. O'Laughlin when he tells us where 17 this is from, but the information on this chart has not 18 been confirmed by the witness here. 19 C.O. STUBCHAER: Well -- 20 MR. O'LAUGHLIN: Excuse me. Let me get to it another 21 way. 22 C.O. STUCHAER: Go ahead. 23 MR. O'LAUGHLIN: This witness is relying upon SJRIO 24 number 12 as the basis for his opinions and conclusions 25 expressed in South Delta Water Agency Exhibit Number 51. CAPITOL REPORTERS (916) 923-5447 8807 1 MR. HILDEBRAND: In part. 2 MR. O'LAUGHLIN: In part, correct. Thank you. 3 Now -- and I realize there's some confusion about SJRIO 4 Number 12. And we've been working to try to get through 5 that on a very nontechnical basis. I haven't delved into 6 all the modeling that was done, or the assumptions, or the 7 parameters and the knowns and everything that goes into the 8 modeling. 9 But based on what Mr. Hildebrand has said here 10 this morning, that he believes that there's water savings 11 that are being made available, what I want to know, now 12 that we have an actual year and this was the actual 13 add-water table that was used by SJRIO, where those water 14 savings are going to come from on the San Joaquin River. 15 And that's all I'm getting at. I'm not getting at anything 16 else. 17 C.O. STUBCHAER: I think the objection could be 18 satisfied by saying: Assuming that this table is what you 19 said it is, where would the water come from? 20 MR. O'LAUGHLIN: And that's throughout my questioning 21 in regards to this table, I will bring Ms. Kipps back in to 22 confirm what this table is and what it was used for. 23 But based on his understanding of what was done 24 with the modeling I just want to know, now, that since he's 25 the proponent of the recirculation plan, where this CAPITOL REPORTERS (916) 923-5447 8808 1 additional water is going to come from. 2 C.O. STUBCHAER: Mr. Brown? 3 C.O. BROWN: I'd like a clarification question on 4 that table. The 165,000, what is it, in June? 5 MR. O'LAUGHLIN: No. 165,000 is in April. 6 C.O. STUBCHAER: April, it's April. 7 MR. O'LAUGHLIN: That's the pulse-flow period. 8 C.O. BROWN: April? 9 MR. O'LAUGHLIN: Yes. 10 C.O. BROWN: So there was 165,000 acre-feet of water 11 added in April? 12 MR. O'LAUGHLIN: Under DWRSIM 469, that is correct, 13 in order to meet the standards. 14 C.O. STUBCHAER: Mr. O'Laughlin, would you accept my 15 suggestion -- 16 MR. O'LAUGHLIN: I have no problem. 17 C.O. STUBCHAER: -- so that Mr. Hildebrand and 18 Dr. Orlob can answer the question? 19 MR. O'LAUGHLIN: Absolutely. I have no problem. 20 C.O. STUBCHAER: All right. 21 MR. O'LAUGHLIN: Assuming that this chart is what I 22 represented it to you to be, under your recirculation plan 23 where would you get 34,000 acre-feet of water in order to 24 meet the standards at Vernalis? 25 MR. HILDEBRAND: Where are you arriving at the CAPITOL REPORTERS (916) 923-5447 8809 1 conclusion that we would need 34,000 in that year? 2 MR. O'LAUGHLIN: I want you to assume that based on 3 the modeling that was done, Mr. Hildebrand, that this is 4 the add-water component as set forth in the description of 5 469 that's been included within the model in order to meet 6 the standards. 7 MR. HILDEBRAND: Didn't you acknowledge that this is 8 the add water to meet both flow and quality? 9 MR. O'LAUGHLIN: That is correct. 10 MR. HILDEBRAND: Whereas, the other figure you're 11 referring to is only for salinity. 12 MR. O'LAUGHLIN: But on this one -- 13 MR. HILDEBRAND: You can't compare apples and oranges 14 here. 15 MR. O'LAUGHLIN: So you're saying under Table Number 16 5, Table 5 is only to meet salinity under the SJRIO, and is 17 not to meet flow; is that correct? 18 MR. HILDEBRAND: Let me look back a page. 19 MR. O'LAUGHLIN: Sure. 20 MR. HERRICK: And by Table 5 we're referring to South 21 Delta 12. 22 MR. O'LAUGHLIN: Yeah. Thank you, Mr. Herrick. 23 MR. HILDEBRAND: Table 5 shows the amount of 24 recirculation which contributes to meeting the flow 25 requirement in that kind of a year. CAPITOL REPORTERS (916) 923-5447 8810 1 MR. O'LAUGHLIN: Okay. So Table Number 5 is flow? 2 MR. HILDEBRAND: That's supplementary flow, yes. 3 MR. O'LAUGHLIN: Okay. Well, let me go back and 4 represent to you that SJRA Exhibit 29, which we have on the 5 board, is to meet the flow standards at Vernalis. 6 MR. HILDEBRAND: And the quality standards. 7 MR. O'LAUGHLIN: No, not the standards. Not the 8 water quality. We'll leave water quality off. It's just 9 to meet the flow standards. Okay? 10 MR. HILDEBRAND: Okay. 11 MR. O'LAUGHLIN: Now, if it were to meet flow only, 12 my understanding of your recirculation is that your 13 recirculation will meet the standards under all years and 14 in all conditions, correct? 15 MR. HILDEBRAND: Correct. 16 MR. O'LAUGHLIN: Okay. So the first part of my 17 question is: Where are we going to get 34,000 acre-feet of 18 water to meet flow on the San Joaquin River? 19 MR. HILDEBRAND: Where are you getting this 34,000 20 figure? 21 MR. O'LAUGHLIN: It's right there under 1993 under 22 March. Right there in front of you, San Joaquin River 23 Group -- here, 1993, then go over. 24 C.O. STUBCHAER: Why don't you just lay your pen 25 there, Mr. Herrick? CAPITOL REPORTERS (916) 923-5447 8811 1 MR. O'LAUGHLIN: I've got a pointer. 2 MR. HILDEBRAND: Table 5 doesn't give a figure for 3 March. 4 MR. O'LAUGHLIN: No, I know. That's my first 5 question. I know Table 5 doesn't give a figure for March, 6 but the studies show that we're going to need additional 7 water in the San Joaquin River in order to meet the flow 8 standards. 9 So under your plan where are we going to get this 10 water in March? 11 MR. HILDEBRAND: Our plan, 34,000 must be needed 12 primarily in the base case for quality, because they don't 13 have a flow standard in March. 14 MR. O'LAUGHLIN: We could be here a while. Remember 15 this is referring to the 1995 Water Quality Control Plan, 16 San Joaquin River at Airport Bridge -- Airport Way Bridge, 17 excuse me. Vernalis has a standard starting in February. 18 Are you aware of that, Mr. Hildebrand? 19 MR. HILDEBRAND: I stand corrected. I realize there 20 is a standard. 21 MR. O'LAUGHLIN: Okay. So now we have a standard in 22 place. Where under your plan are we going to get 34,000 23 acre-feet of additional water? 24 MR. HILDEBRAND: You talking about the base case now, 25 or the recirculation? CAPITOL REPORTERS (916) 923-5447 8812 1 MR. O'LAUGHLIN: Your recirculation case. Yours -- 2 where is this 34,000 acre-feet of additional water going to 3 come from? 4 MR. HILDEBRAND: We did not stipulate where the flows 5 would come from in that pre-pulse flow season. 6 MR. O'LAUGHLIN: Okay. So as we sit here today, 7 then, we wouldn't know the answer. Do you have a 8 suggestion for the Board if they were to adopt your 9 recirculation plan as to where that 34,000 acre-feet should 10 come from? 11 MR. HILDEBRAND: It could be provided out of New 12 Melones with the savings in releases which are made 13 available at other times. 14 MR. O'LAUGHLIN: Okay. So that water would come from 15 New Melones. Now, let's look at April. I don't know which 16 way you would like to do this, Mr. Hildebrand, do you want 17 to assume that the entire April pulse flow period -- the 18 pulse flow period occurs entirely within April, or do you 19 want to add those two numbers together for April and May 20 and then divide by half and assume that it was split 21 equally between April 15th and May 15th? 22 MR. HILDEBRAND: We did it both ways. 23 MR. O'LAUGHLIN: Okay. Well, let's look at this 24 number, 165,000 acre-feet. Now, my understanding of your 25 recirculation proposal is that would be the actual amount CAPITOL REPORTERS (916) 923-5447 8813 1 of water that would be recirculated in April of 1993 if 2 your plan was adopted; is that correct? 3 MR. HILDEBRAND: Assuming the whole pulse flow is in 4 April, yes. 5 MR. O'LAUGHLIN: Okay. Now, have you ever figured 6 out what is -- on a csf rate, how much 165,000 acre-feet 7 for a 30-day pulse flow period comes out to be? 8 MR. HILDEBRAND: That's pretty simple arithmetic. 9 MR. O'LAUGHLIN: Can you do that for me, please? 10 MR. HILDEBRAND: Well, if you wanted to test my 11 ability in mental arithmetic, I suppose I could do it. 12 MR. O'LAUGHLIN: Thank you. 13 MR. HILDEBRAND: And 165 over 31 days, is that -- 14 MR. O'LAUGHLIN: 30 days. 15 MR. HILDEBRAND: 30 days. 16 MR. O'LAUGHLIN: The number is pretty big, isn't it? 17 MR. HILDEBRAND: Well, don't get excited. Where do 18 we cancel this thing out? 19 MR. HERRICK: Maybe that doesn't have one. 20 MR. HILDEBRAND: Here it is. Okay. 21 C.O. BROWN: Be interesting to see if your number 22 coincides with ours up here. 23 MR. HILDEBRAND: It's a little less than 1,000 csf, 24 907. 25 MR. O'LAUGHLIN: 907. Well, I don't even come close CAPITOL REPORTERS (916) 923-5447 8814 1 to that number. How do you arrive -- why don't you do the 2 calculation -- 3 MR. HILDEBRAND: Did you call for acre-feet or csf? 4 MR. O'LAUGHLIN: No. I'll call for csf. 5 MR. HILDEBRAND: Csf, okay. 6 MR. HERRICK: Just so that we're clear for the 7 record, why don't we ask Dr. Orlob and Mr. Hildebrand to 8 give us the calculation. And then we can see whether we're 9 pushing the right numbers. 10 Dr. Orlob, how would you -- would it be 1.98 11 times 30 equals 165,000? 12 DR. ORLOB: Let's do it this way. 13 MR. HERRICK: It's something times 1.98 times 30 days 14 equals 165,000? 15 DR. ORLOB: Right. I've got about 2300, something 16 like that. 17 MR. O'LAUGHLIN: 2300 csf? 18 DR. ORLOB: Yes. 19 MR. O'LAUGHLIN: Okay. All right. 20 DR. ORLOB: I just did that mentally. I didn't do it 21 on a calculator. 22 MR. O'LAUGHLIN: Okay. Well, that's way short under 23 my calculations. 24 DR. ORLOB: It's 165,000 divided by 2 divided again 25 by 31 days. CAPITOL REPORTERS (916) 923-5447 8815 1 MR. O'LAUGHLIN: 30. 2 DR. ORLOB: 30, okay. 3 MR. O'LAUGHLIN: Isn't it 1.91 -- 4 DR. ORLOB: Excuse me? 5 MR. O'LAUGHLIN: Isn't it 1.91? 6 DR. ORLOB: 1.9835. 7 MR. O'LAUGHLIN: Thank you. 8 MR. HERRICK: Isn't it a 31-day pulse flow? 9 MR. O'LAUGHLIN: Whatever. Put the number -- 10 MR. HERRICK: I'm just -- 11 MEMBER DEL PIERO: I'm having a good time here. 12 C.O. STUBCHAER: Let's go off the record until the 13 calculation is finished. 14 (Off the record.) 15 C.O. STUBCHAER: Okay. Back on the record. 16 MR. O'LAUGHLIN: What calculation did you come up 17 with? 18 MR. HILDEBRAND: 2688.172. 19 MR. O'LAUGHLIN: All right. 20 MR. HILDEBRAND: Let's be very precise here. 21 MR. O'LAUGHLIN: Okay, csf. All right. So, then, if 22 I understand that correctly, if we're having the 23 recirculation in operation, then we'd have to have 2600 -- 24 just call it 2700, approximately, acre-feet of water being 25 pumped out at the pumps and recirculated down the DMC, down CAPITOL REPORTERS (916) 923-5447 8816 1 the Newman Wasteway and back into the San Joaquin River; is 2 that correct? 3 MR. HILDEBRAND: In that extreme case, yes. 4 MR. O'LAUGHLIN: Okay. Now, what is the carrying 5 capacity of the Newman Wasteway? 6 MR. HILDEBRAND: I believe it's about 3,000. 7 MR. HERRICK: Could I just -- 8 C.O. STUBCHAER: Excuse me, Mr. O'Laughlin. 9 MR. HERRICK: Just for clarification, I don't mean to 10 object, are we all straight on whether or not this number 11 is the amount needed to have the flow at Vernalis during 12 the pulse flow for the pulse flow? 13 MR. O'LAUGHLIN: Right. That's what I gave him to 14 assume. 15 MR. HERRICK: Okay. 16 MR. O'LAUGHLIN: So this is a recirculation number. 17 MR. HILDEBRAND: And we're doing it as if the pulse 18 flow is all in April as compared to split between April and 19 May? 20 MR. O'LAUGHLIN: Absolutely. 21 MR. HILDEBRAND: That's the answer. 22 MR. O'LAUGHLIN: Yes. Now, what is the pulse flow 23 requirement in a wet year for Vernalis? How does the 24 number 7300 to 8600 sound? 25 MR. HILDEBRAND: That sounds right. CAPITOL REPORTERS (916) 923-5447 8817 1 MR. O'LAUGHLIN: Okay. Now, do we know whether or 2 not X2 would be in or out in 1993? Do you know? 3 MR. HILDEBRAND: I don't know. 4 MR. O'LAUGHLIN: Okay. But that would effect the 5 amount of water needed? 6 MR. HILDEBRAND: That would effect the amount, yes. 7 MR. O'LAUGHLIN: Okay. Now, do you know in 1993 what 8 the base flow was in the San Joaquin River at Vernalis? 9 Would that be the subtraction of the 8600 minus the 165, 10 roughly 2600 to get us to a base flow of about 5,000 csf? 11 MR. HILDEBRAND: That sounds right. 12 MR. O'LAUGHLIN: Okay. Now, under your plan are 13 exporters allowed to pump at a one-to-one ratio under the 14 1995 Water Quality Control Plan, or are they limited to 15 some other pumping limitation or requirement? 16 MR. HILDEBRAND: The control plan basically allows 17 one-to-one, except that the biological opinion alters that. 18 MR. O'LAUGHLIN: Okay. But under your plan what are 19 we going to tell the pumpers that they can do in 1993? Can 20 they pump under the 1995 Water Quality Control Plan on a 21 three-day average they can do 5,000 csf; is that correct? 22 MR. HILDEBRAND: As I explained last week, we assume 23 that the recirculation water would be superimposed on the 24 flows that would otherwise exist and that that would be 25 permitted to be the case. CAPITOL REPORTERS (916) 923-5447 8818 1 MR. O'LAUGHLIN: Okay. And, then, if there's a 2 biological opinion we just -- some people say cut the 3 number in half, so that would be about 2500 csf to pump? 4 MR. HILDEBRAND: I don't know just how that would pan 5 out with the current biological opinion, but as we 6 discussed the other day, the current biological opinion did 7 not actually address this kind of an operation. And it 8 presumably would be a new biological opinion. 9 MR. O'LAUGHLIN: Okay. What is the capacity of the 10 DMC in the canal? 11 MR. HILDEBRAND: I don't remember the capacity down 12 at the Newman end. At the upper end, obviously, they pump 13 about 4600 csf. 14 MR. O'LAUGHLIN: Okay. So if we were doing recirc 15 under this requirement at approximately 2700 csf, that 16 would leave the DMC about 1700 csf for supplies, correct? 17 MR. HILDEBRAND: And during the pulse flow that's 18 typically all they're allowed to pump. 19 MR. O'LAUGHLIN: Now, during 1993 coming off of six 20 years of the drought, you think this was any need by the 21 people within the DMC to try to move as much water south as 22 possible in 1993 to make supplies available either at San 23 Luis or to their contractors? 24 MR. HILDEBRAND: I suppose so, but we reviewed this 25 whole proposal with Dan Nelson and his people. And their CAPITOL REPORTERS (916) 923-5447 8819 1 opinion was this could be done without any loss to the 2 contractor, any net loss. 3 MR. O'LAUGHLIN: So, basically, if the recirculation 4 is in place and you're using 2700 csf of capacity in the 5 canal that may have otherwise been used to make water 6 supplies available at San Luis or to the contractors, your 7 understanding is that really doesn't cause an impact to the 8 CVP? 9 MR. HILDEBRAND: Not if they're not allowed to pump 10 more than 1500 anyway. 11 MR. O'LAUGHLIN: Where's the limitation that the CVP 12 is only allowed to pump 1500 csf? 13 MR. HILDEBRAND: I believe that's been the case in 14 recent years. The fish people have held them down to that 15 figure. In any event, if that didn't prevail, then they 16 might have to get a distinct wheel for them. 17 MR. O'LAUGHLIN: Okay. So then they'd have to go to 18 the DWR and ask DWR to increase its pumping in order to 19 make sure that they weren't shorted on supplies in a year 20 like 1993? 21 MR. HILDEBRAND: Well, the overall export would have 22 to be capable of providing the deliveries that would have 23 been made during the pulse flow plus the recirculation. 24 Now, whether that can all be done with the federal pumps, 25 or whether it might on extreme occasions require some CAPITOL REPORTERS (916) 923-5447 8820 1 pumping by the DWR, I don't -- I can't say. 2 MR. O'LAUGHLIN: Well, here's my problem with when 3 you start adding up the numbers: Let's say that the 1995 4 Water Quality Control Plan remains in force and effect, and 5 there's 8600 csf of water showing up at Vernalis, okay. 6 Call it recirc water, call it whatever you want, but 7 there's 8600 csf. 8 The federal contractors are entitled to take, A, 9 100 percent of a three-day running average even during the 10 pulse flow period; is that correct? 11 MR. HILDEBRAND: Federal contractors? 12 MR. O'LAUGHLIN: Yeah. The exporters. 13 MR. HILDEBRAND: Oh -- 14 MR. O'LAUGHLIN: 100 percent. 15 MR. HILDEBRAND: Yeah. 16 MR. O'LAUGHLIN: Or let's even go on to -- 17 MR. HILDEBRAND: But I'm going by the biological 18 opinion. 19 MR. O'LAUGHLIN: Right. Okay. So let's go to the 20 biological opinion. Let's cut it in half. They'd be able 21 to take 4300 csf; is that correct? 22 MR. HILDEBRAND: According to your scenario, yes. 23 MR. O'LAUGHLIN: Okay. So we've got 8600. We cut 24 it -- we're not following the control plan, we're going 25 with the Delta Smelt Biological Opinion. We're down to CAPITOL REPORTERS (916) 923-5447 8821 1 4300 csf. Okay. 2 If you have 4300 csf that the exporters are 3 entitled to take and you add on this additional 2700 4 recirculation, aren't we back to one-to-one? 5 MR. HILDEBRAND: Go back to my explanation, that the 6 assumption in our proposal is that the rules would be 7 changed, if necessary, to permit the recirculation pumping 8 to be superimposed on the flows that would otherwise take 9 place. 10 Now, if that is not permitted, then we indicate 11 the alternative is to get those flows by purchases from the 12 state and federal contractors, release the water they would 13 otherwise receive through the Newman waste way at the 14 river. 15 MR. O'LAUGHLIN: Okay. Well, let's move on, then. 16 We're done with the pulse flow period, the recirculation 17 plan's worked. We moved water all the way around through 18 the DMC down the San Joaquin River. San Luis has the same 19 amount of water it would have had. Now we come to May. 20 And in May we have approximately 85,000 acre-feet of water 21 that needs to be added to the San Joaquin River to meet the 22 flow requirements. 23 Where under your plan are you going to get 85,000 24 acre-feet of water on the San Joaquin River to meet that 25 flow requirement? CAPITOL REPORTERS (916) 923-5447 8822 1 MR. HILDEBRAND: Where do you get the 85,000 in the 2 scenario where we already had the pulse flow in April? 3 MR. O'LAUGHLIN: Now, we're into May. Look over to 4 the next one over, Alex -- Mr. Hildebrand, excuse me. Next 5 one over. Add water from DWRSIM was 85,000 acre-feet of 6 additional water that's needed to be made available in the 7 May time period. So under your plan, where do we get the 8 85,000 acre-feet? 9 MR. HILDEBRAND: You might have to buy it. 10 MR. O'LAUGHLIN: Okay. So is this where we go to the 11 west side CVP contractors and say, "We need 85,000 12 acre-feet of water would you, please, sell it to us?" 13 MR. HILDEBRAND: Could be. Otherwise, you could 14 release water from New Melones that you didn't have to 15 release in April, because the flow was provided from other 16 sources. 17 MR. O'LAUGHLIN: Okay. Well, under the SJRIO, since 18 the savings at New Melones was only on average of 2,000 19 acre-feet per year under the study, why are we going to -- 20 if we have a savings of 2,000 then take 83,000 acre-feet of 21 additional water out of New Melones? 22 MR. HILDEBRAND: The average savings over all years 23 doesn't really mean a whole lot. You have to look at the 24 savings in the years when we have a problem. 25 MR. O'LAUGHLIN: Okay. Do you know what the savings CAPITOL REPORTERS (916) 923-5447 8823 1 were at New Melones in 1993 by having recirculation as 2 opposed to not having recirculation? 3 MR. HILDEBRAND: I haven't calculated that. 4 MR. O'LAUGHLIN: Do you know if that falls out of the 5 SJRIO study? 6 MR. HILDEBRAND: I believe it would if we had the 7 pull out instead of the summaries in the report. 8 C.O. STUBCHAER: Well, Mr. O'Laughlin, Mr. Brown has 9 a question. 10 MR. O'LAUGHLIN: Okay. 11 C.O. BROWN: A clarification question, 12 Mr. O'Laughlin, before you get off of this chart. 13 I understand we're addressing what the cost of 14 this alternative is. I want to make sure I understand what 15 the benefits are before we leave. 16 Are you suggesting that the benefits to the 17 recirculation program in this scenario would be 165,000 18 acre-feet if you're able to discharge 25-, 2600 csf to 19 recirculate, is that the benefit? 20 MR. HILDEBRAND: If you provide the supplemental 21 water required to meet the flow standard at Vernalis with 22 water that does not come out of the San Joaquin River 23 system, then you save that much water in the system that's 24 available for other uses, including possibly such a thing 25 as we just discussed where instead of releasing it for one CAPITOL REPORTERS (916) 923-5447 8824 1 purpose at one time, it's available for another purpose at 2 a different time. 3 C.O. BROWN: So in 1993 the quantity of water that 4 potentially could be served, recognizing that you have the 5 biological opinion and the X2 that would subtract from 6 that, but the potential would be 165,000 acre-feet of 7 water? 8 MR. HILDEBRAND: Yes. 9 C.O. BROWN: Why couldn't you do the same thing to 10 some extent the following month? 11 MR. HILDEBRAND: Well, outside of the pulse flow 12 period you may not be able to pump this much extra without 13 a net loss to the contractors. Other than that, you could 14 do it. Sometimes you would be able to, sometimes you 15 wouldn't. 16 The current idea is that the flow would be ramped 17 up in this situation. So for part of the month you could 18 still recirculate. So you wouldn't have to provide all of 19 this in some other way, some of it would be recirculated. 20 C.O. BROWN: And in your example who would benefit 21 from that water? 22 MR. HILDEBRAND: The benefit would be that you then 23 have 165,000 acre-feet more water left in the tributaries 24 of the San Joaquin River system, which is then available 25 for other uses. CAPITOL REPORTERS (916) 923-5447 8825 1 C.O. BROWN: Okay. 2 MR. O'LAUGHLIN: Well, that leads right where I 3 wanted to go. The extra water that's going to be made 4 available into the tribs, if I understand this number 5 correctly -- you were here when we went through the 6 six-year drought; is that correct? 7 MR. HILDEBRAND: I certainly was. 8 MR. O'LAUGHLIN: Can we just all agree that when we 9 got done with 1992, reservoir storage on the Merced and the 10 Tuolumne and the Stanislaus was pretty low; is that 11 correct? 12 MR. HILDEBRAND: That is correct. 13 MR. O'LAUGHLIN: What are we going to tell these 14 people when they finally get a good wet year and they start 15 refilling their reservoirs, that the amount of reservoir 16 water that they're storing has to be released in June, July 17 and August? 18 MR. HILDEBRAND: I don't think we've said that. 19 MR. O'LAUGHLIN: Okay. So you don't want the water 20 to come from the Merced, or the Tuolumne, or the Stanislaus 21 to meet other requirements in June, July and August; is 22 that correct? 23 MR. HILDEBRAND: I think it should be available to 24 meet the requirements, yes. I don't think it's going to 25 get spilled and wasted. CAPITOL REPORTERS (916) 923-5447 8826 1 MR. O'LAUGHLIN: I'm not saying that it gets spilled 2 or wasted, but how are you in your plan balancing the needs 3 to refill reservoirs in storage with the needs in a year 4 like 1993 with downstream water quality in June, July and 5 August? How are you balancing that in your mind? 6 MR. HILDEBRAND: You would do it the same way you 7 would do it in the absence of recirculation, because we 8 haven't altered the amount of drawdown. 9 MR. O'LAUGHLIN: Okay. So what you're saying, 10 though, is -- let's say I'm sitting there and I'm on the 11 Tuolumne River and your recirculation plan has saved me 12 85,000 acre-feet of water. And I've got that up in storage 13 on June 1 and it's 1993. And my farmers are pretty happy 14 because the reservoirs have finally come up. 15 What do we -- do we get an order from the Board 16 saying you have to release the water that was saved by 17 recirculation to meet water quality later in the summer, or 18 are we going to say the Bureau can go to willing 19 sellers/willing buyers, what's the process here? 20 MR. HILDEBRAND: The process is that you don't get 21 any orders, but you still have that water. And if the 22 water is used within the boundaries of the districts in 23 accordance with their water rights, then when you use that 24 water you're going to get return flows. And those return 25 flows will help to meet the Vernalis salinity standards and CAPITOL REPORTERS (916) 923-5447 8827 1 any fish standards at other times of the year that may 2 arise and you, therefore, don't have to release so much 3 from New Melones. 4 MR. O'LAUGHLIN: I agree with that, but what happens 5 if we come into June, July, or August and it's 1993 and 6 water quality is not being met? And we know for a fact on 7 the Tuolumne River that they've got 85,000 acre-feet saved 8 out of this recirculation plan. 9 Do we just violate the standard at Vernalis, or do 10 we tell somebody they have to release water in order to 11 meet water quality? 12 MR. HILDEBRAND: I've consistently said that I don't 13 think that the Merced and the Tuolumne River tributaries 14 have any responsibility for diluting the salt load that 15 results from the CVP operation. That's an obligation of 16 the CVP. 17 However, if the water that is available is used 18 within the boundaries of the districts in a manner that is 19 beneficial to the districts, it will run in return flows 20 which will contribute to meeting that obligation even 21 though it's not mandated that they do so. 22 MR. O'LAUGHLIN: Okay. Well, let's assume this, 23 then: Let's say MID and TID were going to use 200,000 24 acre-feet that year. And even with this inflow, they were 25 going to use 200,000 acre-feet. So the amount of water CAPITOL REPORTERS (916) 923-5447 8828 1 that they apply within their districts remains absolutely 2 steady. 3 Is it perfectly okay under your plan that that 4 80,000 acre-feet just remain in storage as a safety 5 requirement for those two districts? 6 MR. HILDEBRAND: If they're only allowed to use the 7 stored water within their boundaries, it's sooner or later 8 going to come down because it's in the interests of the 9 district to use the water, whether they use it for power 10 release, or whether they use it for application to 11 agriculture. 12 Consequently, the point in time in which it would 13 come down and benefit downstream interests is -- depends 14 on how those districts operate. But that's the case in the 15 -- the circumstance in the base case. We haven't altered 16 that when we do not take water out of the tributaries to 17 meet the fish flow and we provide the fish flow in some 18 other manner. 19 MR. O'LAUGHLIN: Let's try this another way, if I 20 may. Do you mind? 21 C.O. STUBCHAER: No. Are you what? I mean, let you 22 finish your question. It's still 2 minutes of 9:00. 23 MR. NOMELLINI: The hearing hasn't started yet. 24 MR. O'LAUGHLIN: I looked back at that and I thought 25 we got that fixed. CAPITOL REPORTERS (916) 923-5447 8829 1 C.O. STUBCHAER: It's 10:04, so -- 2 MR. O'LAUGHLIN: Thank you. 3 C.O. STUBCHAER: Go ahead. 4 MR. O'LAUGHLIN: Let's assume this, let's assume that 5 the districts -- MID and TID would use 200,000 acre-feet. 6 They put that into their plan. 1993 comes around, it's a 7 wet year, they're still going to use 200,000. But now they 8 have an additional 80,000 acre-feet up in storage because 9 of this recirculation plan. Okay? 10 MR. HILDEBRAND: Well, I'm not sure that's possible 11 because -- I guess in one year you could because you're 12 allowed to carry over 200,000. But it depends on whether 13 you lost it from a spill or some other thing. 14 MR. O'LAUGHLIN: Okay. But -- so let's say 1993 15 happens, you're not telling the districts to release that 16 water later in the summer out of the reservoir from storage 17 to meet your needs, you're just saying use the water within 18 your districts and we'll eventually get it, correct? 19 MR. HILDEBRAND: That's right. 20 MR. O'LAUGHLIN: Okay. Now we've got this 80,000 21 acre-feet sitting in storage, big wet year comes around and 22 it spills, what benefit has that provided to water quality 23 or South Delta Water Agency? 24 MR. HILDEBRAND: The district elects to store water 25 that is likely to get spilled, that's their problem. CAPITOL REPORTERS (916) 923-5447 8830 1 MR. O'LAUGHLIN: So you don't care if it spills, 2 that's just part of this water that will eventually come 3 down and benefit South Delta Water Agency? 4 MR. HILDEBRAND: Spills occur very infrequently in 5 the New Melones. It's a very large reservoir. 6 MR. O'LAUGHLIN: No. I'm on the Tuolumne. 7 MR. HILDEBRAND: Oh, you're on the Tuolumne now? 8 MR. O'LAUGHLIN: Yeah. 9 MR. HILDEBRAND: Oh, okay. Even their spills are not 10 frequent. And when you have that much water they usually 11 let it out for power production. So they don't normally 12 hold it to the point where it's going to get spilled except 13 in an extreme year. 14 MR. O'LAUGHLIN: Going back to SJRIO very briefly 15 then, Exhibit Number 12. Do you have the -- is there a 16 chart that can be provided from Table Number 5 that shows 17 the actual amounts of water that are needed for 18 recirculation in any given year? 19 MR. HILDEBRAND: I would assume that's available in 20 the output that was not put in the tables. And, Jerry, 21 perhaps, you would know better than I. 22 DR. ORLOB: I think it is available, but I don't 23 think it's here. 24 MR. O'LAUGHLIN: Okay. 25 DR. ORLOB: We don't have a copy of it. CAPITOL REPORTERS (916) 923-5447 8831 1 MR. O'LAUGHLIN: And finally turning to tables -- 2 Table 9-A, this is additional water that's required from 3 New Melones in order to meet the salinity objectives under 4 the SJRIO plan; is that correct, Table 9-A of Exhibit 5 Number 12? 6 MR. HILDEBRAND: In the base case, yes. 7 MR. O'LAUGHLIN: Okay. Now, were these numbers ever 8 stuck back in the model and run with New Melones to see 9 what impacts this would have on end of month storage at New 10 Melones? 11 MR. HILDEBRAND: Well, as I explained earlier, in the 12 case of the DWR analysis, it did not overdraft New Melones. 13 In the case of the SJRIO it did involve some overdraft. 14 And we felt that that discrepancy was not serious, because 15 we're looking at differences here rather than absolute 16 figures, which are not accurately predictable under any of 17 these models. 18 MR. O'LAUGHLIN: Okay. Now, let's talk about New 19 Melones just a little bit in regards to the modeling and 20 we'll move off the SJRIO Exhibit Number 12. 21 My understanding is that when New Melones was 22 modeled it was modeled with 98,000 acre-feet for the fish 23 agreement; is that correct? 24 MR. HILDEBRAND: I believe it was modeled with what 25 amounts to the 1987 agreement between the Bureau and the CAPITOL REPORTERS (916) 923-5447 8832 1 Fish and Game Department. 2 MR. O'LAUGHLIN: Okay. Now, what modeling -- in the 3 modeling what amounts of supplies were made available to 4 CVP contractors from New Melones? 5 MR. HILDEBRAND: In the modeling, I'd have to check 6 this, but I believe that it did assume that there would be 7 full delivery of the contractual obligation to OID and 8 SSJID, which in our judgment, exceeds their underlying 9 water right, but that there was no water delivered to the 10 eastern county. 11 MR. O'LAUGHLIN: Okay. So Stockton East and Central 12 San Joaquin Water Conservation District under this modeling 13 would not receive anything? 14 MR. HILDEBRAND: I would have to go back and look at 15 those inputs to be certain of that, but that's my 16 recollection of it. 17 MR. O'LAUGHLIN: Okay. What about any allocation to 18 New Melones to meet the CVPIA AFRP flows? 19 MR. HILDEBRAND: None. 20 MR. O'LAUGHLIN: Do you think it would be worthwhile 21 for the Board, or the Board staff, to go back and compare 22 or contrast using -- trying to meet CVP contractor numbers, 23 trying to meet AFRP flows and seeing what happens at New 24 Melones Reservoir? 25 MR. HILDEBRAND: Well, it's my recollection that when CAPITOL REPORTERS (916) 923-5447 8833 1 these proceedings started the Board indicated that it was 2 not going to address, in these proceedings, the narrative 3 provisions in the CVP. 4 MR. O'LAUGHLIN: Okay. What -- would it be safe to 5 say, then, that the way that this modeling was done looking 6 at New Melones as an operational standpoint, that water 7 quality is a -- I'm going to use the word, it's the wrong 8 word -- I know we get mixed up, but I can't find a better 9 word, has a "priority" then at New Melones that its needs 10 get met before other needs are met from New Melones? 11 MR. HILDEBRAND: I guess what we're saying is you'd 12 have a priority over needs other than those that were 13 modeled in this analysis. After all, the whole purpose of 14 this proceeding is to decide how to implement the control 15 plan. And the control plan includes compliance with the 16 Vernalis standards. So if you don't meet that standard, 17 you aren't meeting the whole objective of the proceeding, 18 which is to implement the control plan. 19 MR. O'LAUGHLIN: Do you believe that the Board has to 20 weigh and balance the competing needs of water quality with 21 other beneficial uses of water within the basin? 22 MR. HILDEBRAND: It does in setting its control plan. 23 But now we're talking about how we implement the control 24 plan. 25 MR. O'LAUGHLIN: Okay. So what you're saying, then, CAPITOL REPORTERS (916) 923-5447 8834 1 is that the control plan has to be implemented 100 percent 2 in all times and under all conditions? 3 MR. HILDEBRAND: No. I believe we've acknowledged 4 that there will be times in extreme situations where it is 5 physically impossible to meet any or all of the control 6 plan figures, meeting X2, or meeting of the Vernalis 7 standard or something else, or the fishery commitments. 8 If you get into an extreme situation where the 9 reservoirs are all drawn down, as you mentioned a few 10 minutes ago, then it becomes physically impossible to meet 11 all those. And in that kind of a year, what happens is 12 that the Board's petitioned to -- unless it's handled by a 13 negotiation, the Board is petitioned to resolve the 14 question of: What do you do about the shortage? 15 MR. O'LAUGHLIN: Okay. If you want we can take a 16 break here and then I'm going to move off of Exhibit Number 17 12 and move on to another subject, if you would like, or I 18 can start the other subject. It's up to you. 19 C.O. STUBCHAER: Well, let's go on a little longer. 20 MR. O'LAUGHLIN: Okay. Not a problem. 21 Turning back to your testimony exhibit -- South 22 Delta Water Agency Exhibit Number 51, Page 2, item number 23 5, when you talk about channel depletion, are you talking 24 about a quantity of water, or a quality of water? 25 MR. HILDEBRAND: Both. CAPITOL REPORTERS (916) 923-5447 8835 1 MR. O'LAUGHLIN: Okay. Now, one of the things, are 2 you talking about maintaining certain water levels as -- 3 within the South Delta as well in regards to channel 4 depletion? 5 MR. HILDEBRAND: That's a little different than 6 channel depletion. We have stipulated that you have to 7 have the barriers in order not to have the water level 8 problem. It's inappropriate to permit exports that draw 9 down water levels below those which permit us to function. 10 And, therefore, we have to have the barriers when 11 the exports are taking place at any time that they would 12 otherwise prevent us from diverting by drawing down water 13 levels. Now, the plan assumes that we would have the 14 barriers functioning as needed, whenever we have to have it 15 to protect us against that drawdown. 16 So the overall plan takes care of that with the 17 barriers. If you did not have barriers, then you would 18 have to take care of it, in part, by preventing the exports 19 from taking place at those times when the drawdown would 20 otherwise prevent us from being able to divert. 21 MR. O'LAUGHLIN: Okay. Are you -- where can you 22 point me to in the law that a riparian right is entitled to 23 a certain water level in order to take its water supply? 24 MR. HILDEBRAND: I didn't say that the water level 25 problem was a part of the riparian right. CAPITOL REPORTERS (916) 923-5447 8836 1 MR. O'LAUGHLIN: Okay. What is that right? 2 MR. HILDEBRAND: The riparian right is the right to 3 the unimpaired flow of the river system, which is superior 4 to other rights on the river system. It's a joint right 5 among the riparians. It's not a right by each riparian. 6 And in the case of the South Delta, a vast majority of our 7 diversions are riparian. 8 In order to supply those riparian rights you also 9 have to have enough inflow to meet the public trust losses 10 in the system, which are the evaporation from the channels 11 and the consumptive use of water by vegetation along the 12 channels. That sort of thing. 13 So in order to protect the riparian rights you 14 have to have a sufficient inflow to take care of both the 15 public trust consumptive needs and the riparian needs. 16 MR. O'LAUGHLIN: Well, I'm confused about this, 17 though. In regards to water levels, are you saying as a 18 riparian in the South Delta Water Agency that you're 19 entitled to a certain water surface elevation in order to 20 divert water from the water system? Just riparians. 21 MR. HILDEBRAND: I just explained that the water 22 level right is a different right from the riparian right. 23 MR. O'LAUGHLIN: All right. 24 MR. HILDEBRAND: As I understand it, it's the right 25 to -- CAPITOL REPORTERS (916) 923-5447 8837 1 MR. O'LAUGHLIN: Can we stop? You've answered the 2 question. Don't worry, I'll follow up. That was a good 3 answer. That's fine. 4 Now, let's go to what is it about what right do 5 you believe entitles a certain surface water elevation 6 within the South Delta? 7 MR. HERRICK: Just for the record, my objection would 8 be Mr. Hildebrand is not an attorney. There are legal 9 issues involved. He's certainly able to answer on his 10 opinion, but I want the record to show that this is 11 necessarily a legal argument or legal provision. 12 C.O. STUBCHAER: The record will show that. And I 13 agree that Mr. Hildebrand can give his opinion. 14 MR. HERRICK: Thank you. 15 MR. HILDEBRAND: A right to a water level is a right 16 against the CVP and the State Water Project that they 17 should not operate in a manner that damages our ability to 18 divert the water to which we're entitled under our riparian 19 rights. 20 MR. O'LAUGHLIN: Okay. 21 MR. HILDEBRAND: They must mitigate their impact on 22 the water level as needed. 23 MR. O'LAUGHLIN: Well, what about when the barriers 24 are in and the people within the South Delta start 25 extracting water from behind the barriers in order to meet CAPITOL REPORTERS (916) 923-5447 8838 1 their consumptive needs, do they draw down the water levels 2 behind the barriers? 3 MR. HILDEBRAND: They're drawing it down during the 4 period of the ebb tide, while they're operating on the 5 water that was trapped during the rising high tide. And 6 thereby they're isolated from the drawdown during the low 7 tide that is caused by the exporters. 8 MR. O'LAUGHLIN: Okay. But where -- let's say we're 9 in that time period, the water gets trapped behind the 10 barriers where it's supposed to be, South Delta Water 11 Agency is pumping and the water drops. 12 What are we going to tell the Board, here is the 13 amount of water that's needed to maintain a water surface 14 elevation in the South Delta Water Agency in order to meet 15 those public trust needs when you're drawing down water? 16 MR. HILDEBRAND: If you look at the 1991 agreement 17 among the Bureau, DWR and SDWA, it quantifies the amount of 18 water that it takes to get us through from one tide to the 19 next in various months. 20 MR. O'LAUGHLIN: I know it quantifies that, in fact, 21 that's in Exhibit Number 19 is your depletion amount. 22 But what I'm saying is: What are we going to tell 23 the Board, here is the amount of water surface elevation 24 that we should maintain within the South Delta in order to 25 meet public trust needs? CAPITOL REPORTERS (916) 923-5447 8839 1 MR. HILDEBRAND: Seems to me the Board merely would 2 dictate that the -- our ability to divert must not be 3 damaged by drawdown to the export pumps. 4 Now, we are currently in negotiation, or 5 collaboration I would almost call it in this case, among 6 the DWR, the Bureau and the South Delta Water Agency to 7 establish a system for forecasting when, in the absence of 8 the barriers, we may be unable to divert because of the 9 drawdown and then to determine the measures that would be 10 necessary to avoid that damage to us. 11 MR. O'LAUGHLIN: Well, let me -- 12 C.O. STUBCHAER: Mr. O'Laughlin, Mr. Del Piero has a 13 question. 14 MEMBER DEL PIERO: I'm sorry. I feel like I'm 15 standing in a doorway, you're in one room and 16 Mr. Hildebrand is in another room. 17 MR. O'LAUGHLIN: You're absolutely correct. 18 MEMBER DEL PIERO: You're asking a question and he's 19 giving you an answer to a different question. And then you 20 follow up with another question and he's giving you a 21 different answer. 22 I need some clarification. First of all, your 23 last question was: What do we tell this Board about what 24 level is necessary in order to protect the public trust 25 resources? CAPITOL REPORTERS (916) 923-5447 8840 1 MR. O'LAUGHLIN: Tied to a water surface elevation 2 within the South Delta. 3 MEMBER DEL PIERO: And I guess the question I have in 4 regards to that is: Where is the water level in the public 5 trust doctrine? I mean, we talk about flows all the time, 6 we don't talk about water levels. 7 So I'm interested in knowing, if I'm hearing you 8 correctly, if that's really the question you're asking. 9 And then if that's the case, I don't think Mr. Hildebrand 10 responded to the question if, in fact, you're asking that 11 question about the levels as opposed to flows. 12 MR. O'LAUGHLIN: Right. And that's -- I'm -- 13 MEMBER DEL PIERO: So could you clarify for me and 14 then maybe Mr. Hildebrand could clarify for me and then 15 maybe we can all get in one room as opposed to standing in 16 the doorway? 17 MR. O'LAUGHLIN: I'm in entire agreement. 18 C.O. STUBCHAER: And with that, then -- now is a 19 good time for the break. 12 minutes. 20 (Recess taken from 10:23 a.m. to 10:37 a.m.) 21 C.O. STUBCHAER: Reconvene the hearing. 22 Mr. O'Laughlin. 23 MR. O'LAUGHLIN: Let's use Mr. Del Piero's segue and 24 see if we can get in the same room. Is it your 25 understanding that water levels need to be maintained in CAPITOL REPORTERS (916) 923-5447 8841 1 the South Delta in order to meet public trust requirements? 2 MR. HILDEBRAND: On a legal point of view, I don't 3 know that I can answer that. But from the practical point 4 of view, seems to me that the water levels in the South 5 Delta have to be maintained for several reasons. And one 6 of them is that the Delta Protection Statutes state that 7 the projects must not impair the availability and the 8 quality of the water in the Delta. 9 Now, the availability includes the water level 10 problem. And you don't maintain the level if you don't 11 have enough water supply to take care of the public trust 12 consumptive uses as well as the local diversions as we 13 discussed a little earlier. 14 And, thirdly, there's the principle that if the 15 projects damage the water supply that would otherwise be 16 available to the riparians, they've got to mitigate that 17 damage. And so I don't know just how you put these things 18 together legally, but it seems to me that there's a clear 19 requirement that the South Delta be protected from drawdown 20 of the projects to the point where we can't divert. 21 MR. O'LAUGHLIN: Well, maybe you can help me. 22 Explain to me -- do you have that map still, Mr. Herrick? 23 Let's look at Old River. And, here, I'll let you 24 use the pointer, Mr. Hildebrand. We put the overhead up 25 again. CAPITOL REPORTERS (916) 923-5447 8842 1 What is that, South Delta Water Agency 56? 2 MR. HERRICK: 56. 3 MR. O'LAUGHLIN: Thanks. Looking at the Old River, 4 now when the barrier is in, where is the barrier on Old 5 River again? Not the head of Old River, but down below. 6 MR. HILDEBRAND: Here. 7 MR. O'LAUGHLIN: Okay. So it's right almost at the 8 Grantline Canal? 9 MR. HILDEBRAND: That's right. 10 MR. O'LAUGHLIN: Okay. Now, if the pumps are 11 operating and the barrier and the gate is closed, what 12 affect does that have on the hydraulics behind the barrier, 13 I mean upstream of the barrier? 14 MR. HILDEBRAND: During the rising tide the water 15 flows into that canal. 16 MR. O'LAUGHLIN: Okay. 17 MR. HILDEBRAND: And then when the tide starts to 18 ebb, the tide gate closes. It traps that high tide level 19 of water in that canal. 20 MR. O'LAUGHLIN: Okay. So now we have water trapped 21 behind the barrier on Old River. And so there's a back 22 watering effect on Old River. That water is now impounded? 23 MR. HILDEBRAND: That's right. 24 MR. O'LAUGHLIN: Okay. Now, granted, we know that 25 they may leak and stuff and we may get some water out. CAPITOL REPORTERS (916) 923-5447 8843 1 What happens, though, if the pumps are still operating to 2 affect the hydraulics to behind that pump -- behind the 3 barrier, does water get drawn around through Stockton and 4 up and over and back to the pumps and out of Old River? 5 MR. HILDEBRAND: Well, as we discussed last week, our 6 proposal involves three barriers not one. And the 7 hydraulics of the system require all three to accomplish 8 what we're talking about. 9 MR. O'LAUGHLIN: Okay. So let's say there's all 10 three in there. What I'm trying to understand is the pumps 11 are operating, how are the pumps impacting the hydraulics 12 behind the tidal barriers when the tidal barriers are 13 closed? 14 MR. HILDEBRAND: They don't affect it during the 15 period that the tidal barriers are closed and that's -- 16 MR. O'LAUGHLIN: Okay. Great. 17 C.O. STUBCHAER: Excuse me. Mr. O'Laughlin, you did 18 not allow him to finish. 19 MR. O'LAUGHLIN: Okay. Go ahead and finish, 20 Mr. Hildebrand. 21 MR. HILDEBRAND: That's why the barriers protect us 22 from -- isolate us from drawdown of the export pumps and 23 thereby eliminate this problem of the affect of the exports 24 on the water levels. 25 MR. O'LAUGHLIN: Okay. So now we're clear that at CAPITOL REPORTERS (916) 923-5447 8844 1 least with the barriers closed and water impounded behind 2 them, that the pumps don't have an impact on the hydraulics 3 behind the barrier, correct? 4 MR. HILDEBRAND: During that period, no. 5 MR. O'LAUGHLIN: During that time period, right. 6 During the time period when the barriers are closed. Now, 7 people within South Delta Water Agency, landowners along 8 Old River start pumping water out of the Old River with the 9 barriers closed. Is that a normal practice? 10 MR. HILDEBRAND: Yes. 11 MR. O'LAUGHLIN: Okay. So they're using the water 12 consumptively as they're entitled to use it for their 13 riparian needs, right? 14 MR. HILDEBRAND: That's right. 15 MR. O'LAUGHLIN: All right. Now, let's say that the 16 water behind where the barriers are gets drawdown three 17 feet while the people within South Delta are taking water. 18 Okay? 19 MR. HILDEBRAND: You're talking about the upstream 20 side of the barriers? 21 MR. O'LAUGHLIN: Upstream side of the barriers. 22 Okay. So that there's a drawdown -- 23 MR. HILDEBRAND: I don't know if three feet is a 24 realistic number, but let's go ahead. 25 C.O. STUBCHAER: Let me just clarify that. Upstream CAPITOL REPORTERS (916) 923-5447 8845 1 of the lower barrier, downstream of the upper barrier. 2 MR. O'LAUGHLIN: Well, there's no upper barrier in at 3 this place. 4 C.O. STUBCHAER: I'm sorry. 5 MR. O'LAUGHLIN: No upper barrier, no head of Old 6 River in. So there's a drawdown that's occurring because 7 people are using water, whether it's one foot or two feet. 8 MR. HILDEBRAND: That's true, but there's also a 9 drawdown to the extent that the barrier captures more water 10 than we need to divert. And that excess water then flows 11 all the way out through and into the San Joaquin River. 12 MR. O'LAUGHLIN: Okay. So there's a net, water flows 13 back around and water goes back into the San Joaquin River. 14 But let's say the tidal barriers are closed and water is 15 being drawn down during that time period by people within 16 South Delta to meet their consumptive needs. 17 What are we going to tell the Board, to set a 18 water surface elevation in order to protect public trust? 19 Do we set it at zero, or do we set it at plus 2 feet above 20 mean sea level? What's the number we should be shooting 21 for? 22 MR. HILDEBRAND: We haven't suggested that the Board 23 set any standard on water elevations when the barriers are 24 installed. 25 MR. O'LAUGHLIN: So you don't want any water surface CAPITOL REPORTERS (916) 923-5447 8846 1 elevation when the barriers are installed, only when the 2 barriers are not installed? 3 MR. HILDEBRAND: We don't have a problem of water 4 levels when the barriers are installed. 5 MR. O'LAUGHLIN: Because that keeps the water up high 6 enough in order for you to divert; is that correct? 7 MR. HILDEBRAND: That's correct, providing we have 8 all three barriers. 9 MR. O'LAUGHLIN: What -- has South Delta Water Agency 10 looked at the impact that sedimentation has caused in its 11 ability to meet its depletion numbers? 12 MR. HILDEBRAND: Yes. 13 MR. O'LAUGHLIN: Okay. 14 MR. HILDEBRAND: The water level numbers, you mean? 15 MR. O'LAUGHLIN: The water level numbers. 16 MR. HILDEBRAND: Yes. 17 MR. O'LAUGHLIN: Okay. What impact has sedimentation 18 in the South Delta had on the ability to meet water surface 19 elevations? 20 MR. HILDEBRAND: In the absence of that agridation 21 that's been ongoing and has been aggravated in the last 22 couple 30-what years, we could tolerate a certain amount of 23 drawdown by the export pumps before it began to hurt us. 24 The agridation has diminished the extent to which we can 25 tolerate a drawdown. CAPITOL REPORTERS (916) 923-5447 8847 1 MR. O'LAUGHLIN: Now, what happens if -- and focusing 2 on the Old River, again, if you install the barrier it acts 3 as a mini reservoir; is that correct? It retains water 4 behind it for use by the people along the channel, correct? 5 MR. HILDEBRAND: I suppose you could call it a mini 6 reservoir, yes. 7 MR. O'LAUGHLIN: Okay. Now, what happens to the 8 availability within that reservoir to hold water if the 9 sediment is increasing in that channel? 10 MR. HILDEBRAND: Well, that's what I just explained, 11 that as you -- as the channels get shallower from 12 agridation, we have reduced ability to tolerate a drawdown 13 before it gets below the level at which we can divert. And 14 it's only the water above that level that's useful to us in 15 providing our diversions. 16 MR. O'LAUGHLIN: Now, my understanding of South Delta 17 Water Agency is that there is no coordination among the 18 landowners within the South Delta on taking diversions out 19 of the system; is that correct? 20 MR. HILDEBRAND: That is true, just as it is true all 21 up and down these river systems, riparian diverters don't 22 have to coordinate. 23 MR. O'LAUGHLIN: Have you looked at any analysis as 24 to figure out once you get water trapped behind the 25 barriers as to the amount of capacity to pump is in CAPITOL REPORTERS (916) 923-5447 8848 1 relationship to the channel capacity? 2 MR. HILDEBRAND: Will you repeat that, please? 3 MR. O'LAUGHLIN: Sure. When you get behind a tidal 4 barrier, have you looked at the ability, the pumping 5 capacity of the people to divert water versus the capacity 6 of the channel to hold water? 7 MR. HILDEBRAND: Well, their collective diversion 8 can't exceed the amount of water that's available to them 9 without drawing down the water level, that's true. 10 MR. O'LAUGHLIN: Okay. But we've heard testimony 11 earlier in these proceedings about various farmers within 12 South Delta Water Agency who went out at various times in 13 the year and found that even with the barriers in that they 14 didn't have any water within their canals or channels. 15 Do you remember that testimony? 16 MR. HILDEBRAND: I don't recall any testimony that 17 that occurred when all three tidal barriers were 18 functioning. 19 MR. O'LAUGHLIN: So if all three tidal barriers were 20 functioning, your understanding is that even with the 21 sedimentation and agridation that's occurring within the 22 South Delta there would still be plenty of water available 23 for South Delta Water Agency to meet its needs? 24 MR. HILDEBRAND: Currently, but as the agridation 25 continues, if the present water depth isn't maintained that CAPITOL REPORTERS (916) 923-5447 8849 1 will cease to be the case. 2 MR. O'LAUGHLIN: Do you know if South Delta Water 3 Agency has done any work to ascertain what the capacity of 4 any of the channels are to hold water? 5 MR. HILDEBRAND: Well, that's pretty well covered in 6 the modeling that's been done on the barriers. The amount 7 of water we capture, the amount of drawdown you get with a 8 given flow in a given channel, that sort of thing. 9 MR. O'LAUGHLIN: Is everyone within South Delta Water 10 Agency a riparian? 11 MR. HILDEBRAND: No, not everyone. We explained 12 before what the exceptions were to that. 13 MR. O'LAUGHLIN: Okay. And there's CVP contractors 14 within South Delta Water Agency; is that correct? 15 MR. HILDEBRAND: Yes, sir. That's correct. 16 MR. O'LAUGHLIN: Okay. Can you point on the chart, 17 if you can, to where your farm is for me, Mr. Hildebrand? 18 MR. HILDEBRAND: It's about in there. 19 MR. O'LAUGHLIN: Okay. So you're on about the San 20 Joaquin River below Vernalis, correct? 21 MR. HILDEBRAND: Correct. 22 UNIDENTIFIED MAN: Upstream. 23 MR. O'LAUGHLIN: Upstream, thank you. 24 MR. HILDEBRAND: Vernalis is upstream of me. 25 MR. O'LAUGHLIN: Yeah, Vernalis is upstream of you CAPITOL REPORTERS (916) 923-5447 8850 1 and you're downstream of Vernalis. 2 MR. HERRICK: Yeah. 3 MR. O'LAUGHLIN: Thank you. Have you ever not had 4 water available at your farm in order to meet your water 5 needs? 6 MR. HILDEBRAND: 1977. 7 MR. O'LAUGHLIN: During the 1986 through '92 drought 8 did you have water available? 9 MR. HILDEBRAND: Yes. 10 MR. O'LAUGHLIN: Have you ever had -- looked at your 11 farming operation and ascertained what, if any, impacts 12 salinity has had on your farming operation, either from a 13 practice standpoint or from a monetary standpoint? 14 MR. HILDEBRAND: Yes. 15 MR. O'LAUGHLIN: Okay. And what has been your 16 analysis? 17 MR. HILDEBRAND: If you look at South Delta as a 18 whole, we have about 80 different soil types with a range 19 of 100-fold in their permeability. Now, within individual 20 fields, including mine, we have not that whole range, but a 21 significant range. 22 Consequently, if we have salinity such that we -- 23 and a combination of water salinity and leach capability 24 due to low permeability, that permits us -- does not 25 permit us to keep the soil salinity below the threshold CAPITOL REPORTERS (916) 923-5447 8851 1 level for a given crop, we then experience a yield loss. 2 Furthermore, for those of us in my situation, in 3 order to keep the salt that is in our diverted water, which 4 comes from up the river, in order to keep that salt out of 5 root zone we have to overirrigate. The amount of excess 6 water that is applied varies according to the variability 7 within the field. So we leach that out of the root zone, 8 but it's still down below. 9 Now, the river comes up, in a typical flood 10 situation, to where the water level is now above the field 11 instead of below the field, you then get a reverse flow 12 where the seepage comes through underneath and wells up 13 through the ground. It brings that salt load back up into 14 the root zone. And you can't flush that out in a hurry, 15 because the interstices in the soils are such that a 16 flushing water doesn't run down through all the 17 interstices. It takes quite a while to leach it out. 18 So in a year following that situation you see a 19 very clear pattern of loss of yield, which is the same as 20 the difference in permeability of the soils. 21 MR. O'LAUGHLIN: Okay. Well, can you try to 22 quantify, if possible, monetarily what type of impact it's 23 going to have on you on a year-to-year basis. Does it vary 24 from year to year? 25 MR. HILDEBRAND: Oh, yeah. It varies if we don't get CAPITOL REPORTERS (916) 923-5447 8852 1 reverse flow, and if we have full compliance of the 2 Vernalis standard now, we get a little bit of a loss even 3 at that level, but not a whole lot. 4 We submitted extensive testimony before this Board 5 in previous hearings. And I believe those were put into 6 the hearing record for this record of the salinity losses 7 for the -- or the crop losses that are estimated to occur 8 in the South Delta. 9 MR. O'LAUGHLIN: One second, please. Let's look at 10 1987 through '92. Your understanding is that in most of 11 those years water quality wasn't being met at Vernalis; is 12 that correct, in the summer months? 13 MR. HILDEBRAND: I don't recall a percentage of time 14 it wasn't met, but there were certainly times when it was 15 violated to a significant degree. 16 MR. O'LAUGHLIN: Okay. And you farmed during that 17 time period; is that correct? 18 MR. HILDEBRAND: Oh, yes. 19 MR. O'LAUGHLIN: Could you quantify for us during the 20 drought period what your impacts were with farming 21 operations due to salinity not being met at Vernalis? 22 MR. HILDEBRAND: I haven't calculated for that 23 period. 24 MR. O'LAUGHLIN: Well, what I'm getting at is I'm 25 trying to balance here in my head. We're looking at these CAPITOL REPORTERS (916) 923-5447 8853 1 costs. And recirculation has a cost associated with it, 2 which is this increased pumping, moving water down the DMC, 3 maybe taking some water out of San Luis from storage, 4 putting the water back into the river, have you done any 5 analysis of trying to balance that with the increment of 6 impact caused to South Delta Water Agency due to increased 7 salinity at Vernalis? 8 MR. HILDEBRAND: We haven't done that explicitly, I 9 suppose it could be done. But if you're going to start 10 looking at costs and losses, you'd have to recognize that 11 recirculation costs a lot less than buying a comparable 12 amount of water, the flow. And you'd have to consider in 13 the case of crop losses, whose fault it is that's causing 14 the loss. 15 Is there any particular reason, for example, why I 16 should entertain a crop loss from salinity rather than have 17 the CVP mitigate its impact on the salinity? It seems to 18 me that that's not a proper balancing. 19 MR. O'LAUGHLIN: Dr. Orlob, would you agree that 20 South Delta Water Agency received benefits from having New 21 Melones in place during the drought and that it would 22 receive water into late summer months of those years that 23 it otherwise would not receive? 24 DR. ORLOB: Well, to the extent that the releases out 25 of New Melones would improve the water quality at Vernalis CAPITOL REPORTERS (916) 923-5447 8854 1 and bring it within the target standard, I would say they 2 would receive a benefit. 3 MR. O'LAUGHLIN: Okay. Well, referring to South 4 Delta Water Agency Exhibit Number 19, and we've been 5 through this exercise before, based on that summary it 6 says, 7 (Reading): 8 "Reduction in flow due to CVP was 6,500 9 acre-feet during dry years from April to 10 September." 11 Isn't it true that New Melones' release in excess 12 of 6,500 acre-feet to the Stanislaus and then to the San 13 Joaquin River during the time period 1986 through 1992? 14 DR. ORLOB: In excess of 6,000, you say? 15 MR. O'LAUGHLIN: 6,500 acre-feet. 16 C.O. STUBCHAER: Per year or a total? 17 MR. O'LAUGHLIN: Per year from the time period April 18 through September. 19 DR. ORLOB: I don't think I have access to that 20 record, although I think that such a record does exist. 21 I'm not sure what the exact numbers are. 22 MR. O'LAUGHLIN: All right. Mr. Hildebrand, during 23 the 1986 through '92 drought, how many acres of land were 24 fallowed within South Delta Water Agency due to an 25 insufficient supply of water being available to farm? CAPITOL REPORTERS (916) 923-5447 8855 1 MR. HILDEBRAND: I can't give a direct answer to 2 that. However, perhaps, not in that period but certainly 3 in the earlier drought period, we had a lot of photographs 4 of crop damage including some complete loss of crops. I 5 don't think there were a lot of places where they didn't 6 try to grow a crop, but in some places it was totally 7 unsuccessful. And we had the agricultural experts out to 8 examine it and concur that there was, indeed, a salt damage 9 problem -- 10 MR. O'LAUGHLIN: I want to focus -- no, not salt 11 damage. I want to focus strictly on the availability of 12 water within South Delta Water Agency that was insufficient 13 so that people fallowed land from 1986 through 1992. 14 MR. HILDEBRAND: I have no figures on how many people 15 gave up and didn't even try. 16 MR. O'LAUGHLIN: Okay. Now, is it your understanding 17 that the salinity problem within South Delta Water Agency 18 is getting worse, or is it getting better? 19 MR. HILDEBRAND: The salinity problem started to 20 develop after the CVP went into operation. It built up, 21 oh, for a decade or two. It comes somewhere near reaching 22 an equilibrium, although perhaps not totally so. As you 23 indicated in the earlier question, the impact has been 24 partially mitigated by releases from New Melones, but only 25 partially. And so I don't class that as a benefit. I CAPITOL REPORTERS (916) 923-5447 8856 1 class it as a partial mitigation. 2 MR. O'LAUGHLIN: No. But what I want to know, your 3 own farm within South Delta Water Agency, okay, is there a 4 buildup in salinity within your soils that is reaching such 5 a point that you will not be able to farm that property? 6 MR. HILDEBRAND: I don't think we have a continuing 7 buildup of salt load within the South Delta as they have 8 down in the CVP service area, because in the wet years we 9 get it leached out. So it accumulates during seasons when 10 the salinity is high and the flows are very low, but we're 11 able to purge it again. The salt load that I had three 12 years ago are pretty well leached out now. 13 MR. O'LAUGHLIN: Okay. All right. So we don't have 14 a problem with maintaining salts within the soils within 15 South Delta Water Agency -- 16 MR. HILDEBRAND: Over time. 17 MR. O'LAUGHLIN: Over time, okay. So what is it 18 about this salt problem that -- is it getting better or 19 worse? I mean, are we going back? Are things getting 20 worse in South Delta? Are salt problems causing more 21 impacts to the farms, or are things improving incrementally 22 to the farmers? 23 MR. HERRICK: I just object. I think it's a compound 24 question and insufficient information. 25 MR. O'LAUGHLIN: Okay. CAPITOL REPORTERS (916) 923-5447 8857 1 MR. HERRICK: We have to define salt, whether it's 2 salt coming down the river, or salt buildup, or both, or -- 3 C.O. STUBCHAER: And I'm also wondering about the 4 relevancy to this phase of the hearing. Much of what 5 you've asked has been very relevant, but now you seem to be 6 drifting back to the affect of salt on the individual farm. 7 MR. O'LAUGHLIN: Well, unfortunately, I think that's 8 true. As you know within Phase V I took a pass on all 9 these questions within Phase V. I tried to keep it out of 10 that phase entirely. 11 This is going to be an extremely, believe me, 12 narrow scope of inquiry that won't last much longer, but it 13 goes to the amount of water being made available to meet 14 those salinities and flow from the standpoint of what are 15 the benefits of recirculation vis-a-vis versus cost of 16 recirculation. So I'll keep it pretty limited. 17 C.O. STUBCHAER: All right, then. 18 MR. O'LAUGHLIN: And I agree with Mr. Herrick's 19 objections. So if you don't mind, I'll just rephrase the 20 question? 21 C.O. STUBCHAER: All right. 22 MR. O'LAUGHLIN: Thank you. Mr. Hildebrand, have you 23 ever -- did you ever prepare testimony for the State Water 24 Resources Control Board back in 1977? 25 MR. HILDEBRAND: Yes. CAPITOL REPORTERS (916) 923-5447 8858 1 MR. O'LAUGHLIN: Okay. I have in front of me South 2 Delta Water Agency Exhibit 041 from the State Water 3 Resources Control Board Bay-Delta Hearings, Application 4 56-26. 5 Can you take a look at this testimony, 6 Mr. Hildebrand? 7 MEMBER DEL PIERO: Mr. Chairman? 8 C.O. STUBCHAER: Mr. Del Piero. 9 MR. HILDEBRAND: What specifically do you want me to 10 look at? 11 MR. O'LAUGHLIN: Mr. Del Piero is going to talk right 12 now. 13 MEMBER DEL PIERO: The documents that you presented 14 to Mr. Hildebrand, just so I understand, is this document 15 testimony from 1977? 16 MR. O'LAUGHLIN: 1977 reintroduced as Exhibit 41 in 17 this proceeding. 18 MEMBER DEL PIERO: Fine. Thank you. 19 MR. O'LAUGHLIN: On Page 4 of the testimony, and this 20 is what I'm driving at, it says there's two types of 21 damages that are listed: Damages to crops and damages to 22 lands. And it says, 23 (Reading): 24 "Both types of damage are now occurring in the 25 southern Delta and will continue at an CAPITOL REPORTERS (916) 923-5447 8859 1 increasing rate unless the water problem in the 2 southern Delta is solved in the very near 3 future." 4 So what I want to know right now is, we're 21 5 years later from the date that this testimony was submitted 6 to the Board, are we making progress, or are we going back 7 in regards to meeting the needs of South Delta Water Agency 8 in regards to salinity? 9 MR. HILDEBRAND: I think we're continuing to get 10 worse except insofar as the water quality releases from New 11 Melones partially mitigate the impact of the salt load that 12 comes down from upstream. 13 MR. O'LAUGHLIN: Okay. What I'm having difficulty 14 understanding -- and this is going to sound somewhat 15 argumentative but I don't mean to be, because we've been 16 down this road before. 17 If things are getting so bad in South Delta Water 18 Agency in regards to salinity and its impact on farms and 19 on crops, where's the evidence? Where are the numbers 20 showing the devastation to farmers within South Delta Water 21 Agency due to these impacts? 22 MR. HILDEBRAND: We submitted a lot of evidence on 23 that as it related to the '76/'77 drought. We haven't 24 repeated the same kind of analysis for a later drought, 25 although we could do so. The reason that it is still an CAPITOL REPORTERS (916) 923-5447 8860 1 ongoing problem is that as the water consumption upstream 2 of us continues to increase, we continue to decrease the 3 flow that is available to maintain water quality. To the 4 extent that New Melones does not meet the Vernalis 5 standard, we have an ongoing problem. 6 And the proposal submitted by the San Joaquin 7 River Group proposes to increase the violations of the 8 Vernalis standard under their proposal as compared to what 9 it has been in recent years. 10 MR. O'LAUGHLIN: Okay. But let me go back to this. 11 Then if I wanted to look for evidence in regards to on-farm 12 impact, I would go back to '76/'77. And then what you just 13 said now is that it's even worse than '76 and '77 because 14 water quality is being degraded even more? 15 MR. HILDEBRAND: That's not quite what I said. 16 MR. O'LAUGHLIN: Well, with some mitigating impacts 17 from New Melones. 18 MR. HILDEBRAND: What happened is it was steadily 19 getting worse. 20 MR. O'LAUGHLIN: Okay. 21 MR. HILDEBRAND: And then New Melones came along and 22 partially mitigated the damage up to that point. And now 23 it is proposing to get worse again under the San Joaquin 24 River Group Authority proposal. 25 MR. O'LAUGHLIN: Okay. So if things are going to get CAPITOL REPORTERS (916) 923-5447 8861 1 worse under this proposal, have you -- are you going to 2 try to quantify how it's going to get worse? What is South 3 Delta Water Agency going to do to mitigate the impacts from 4 salinity on on-farm practices? 5 MR. HILDEBRAND: We've done a lot of work over many 6 years with the Bureau, particularly with DWR, to develop 7 the program with the barriers. And that program will keep 8 the San Joaquin River salt load and the high salinity, the 9 excess of salinity at Vernalis out of the Old River, Middle 10 River, Grantline channels so that it will correct the 11 problem in that area. 12 So far as the main channel from Vernalis down to 13 Stockton, almost to Stockton, within our boundaries we 14 still have this problem that if the Vernalis salinity 15 standard is not maintained, we will again incur the kind of 16 damage that has been depicted in the past. And that is why 17 we are adamantly opposed to a proposal such as the San 18 Joaquin River Group proposal which proposes to increase, 19 again, the violations of the Vernalis salinity standard. 20 MR. O'LAUGHLIN: Well, real quickly: Does salinity 21 -- does salinity get better as it moves downstream on the 22 San Joaquin and moves in a westerly direction through Old 23 River and so forth, or does it get worse? 24 MR. HILDEBRAND: Well, as we discussed last week, 25 whatever water supply is in the channel we have to divert CAPITOL REPORTERS (916) 923-5447 8862 1 to irrigate our crops. And the salt load that's in that 2 diversion is applied to the crop, crop utilizes, consumes a 3 good part of the water and the salt goes back in the 4 channel. 5 So in terms of salinity it does degrade as it's 6 used. In terms of salt load, we're not adding any 7 significant salt load. So we avoid this whole problem in 8 the case of the channels I just mentioned, which are a 9 large part of our total South Delta area, by just keeping 10 that salt load out of the channels from which we divert and 11 then we don't have a problem. 12 In the case of the main stem, we do have to have a 13 sufficient salinity at Vernalis to maintain water quality 14 throughout the system. And that's why we get -- in 15 addition to the Vernalis salinity standard, we have to 16 worry about the standard at the Old Grant Bridge location. 17 You have to have a quality at Vernalis somewhat in excess 18 of the Grant Bridge standard in order to meet the Grant 19 Bridge standard. 20 MR. O'LAUGHLIN: Okay. So is that a long way of 21 saying that as water moves down the San Joaquin River it 22 moves in a westerly direction, that the water quality is 23 degraded? 24 MR. HILDEBRAND: I don't know that it's westerly when 25 it goes from Vernalis to Stockton. CAPITOL REPORTERS (916) 923-5447 8863 1 MR. O'LAUGHLIN: What about Vernalis towards the Old 2 River? 3 MR. HILDEBRAND: Well, I just explained that, yes. 4 If it gets into Old River it gets further degraded, but we 5 avoid that problem if you put in the barriers so that you 6 don't let that salt get into that channel. 7 MR. O'LAUGHLIN: So would you have the Head of Old 8 River Barrier operating from April through September? 9 MR. HILDEBRAND: No, because that would dewater us 10 too much. But if we would operate the three tidal 11 barriers, we keep the San Joaquin River salt loads flushed 12 out of those channels. 13 MR. O'LAUGHLIN: Well, I'm confused about that, 14 though. Water is coming down the San Joaquin River and it 15 comes into the Old River -- 16 MR. HILDEBRAND: It doesn't come in if the barriers 17 are there. 18 MR. O'LAUGHLIN: So no water comes into Old River 19 even when the water surface elevation drops below the San 20 Joaquin River, or the tidal gates open and water is flowing 21 out, the water doesn't come down the Old River? 22 MR. HILDEBRAND: The tide gates don't open when the 23 water is flowing out. They only open when the water is 24 flowing in. 25 MR. O'LAUGHLIN: Okay. So the water is flowing in. CAPITOL REPORTERS (916) 923-5447 8864 1 So -- oh, this gets back to your belief that there's a 2 hydraulic barrier at the head of Old River? 3 MR. HILDEBRAND: Correct. 4 MR. O'LAUGHLIN: All right. Now, have you gone to 5 any hydraulics person and asked them to set forth some 6 theory as to how this hydraulic barrier works? I've never 7 heard of this before. 8 MR. HILDEBRAND: Well, I don't know how you could 9 avoid hearing about it. And I regard myself as somewhat of 10 a hydraulic expert and we have modeled this and discussed 11 it at great length over a number of years with the DWR, and 12 to a certain extent with the Bureau. And we're all in 13 agreement that this is the way that it works. 14 And we have actual test data because we put in 15 temporary barriers that are not as efficient as the 16 permanent barriers would be, but they do a pretty good job. 17 MR. O'LAUGHLIN: Dr. Orlob, in regards to South Delta 18 Water Agency Number 2, did you come up with the channel 19 depletion numbers for South Delta? 20 DR. ORLOB: Yes, I did some years back on the request 21 of the Bureau of Reclamation and the Department of Water 22 Resources, we arrived at a set of numbers. 23 MR. O'LAUGHLIN: Okay. Isn't it true, in fact, that 24 you arrived at an agreement in regards to one month in 25 channel depletion numbers and then extrapolated that number CAPITOL REPORTERS (916) 923-5447 8865 1 out over the other remaining 11 months? 2 DR. ORLOB: I don't think that was the way it was 3 originally done. We used the Bureau of Reclamation and DWR 4 agreement on consumptive use within the entire Delta and 5 prorated the allocation of that consumptive use to -- or 6 channel depletion, if you will, to the South Delta in 7 accordance with a month-by-month variation that was being 8 used by the DWR and USBR by agreement. 9 MR. O'LAUGHLIN: Dr. Orlob, do you remember preparing 10 testimony before the State Water Resources Control Board in 11 June of 1992? 12 DR. ORLOB: I recall it, yes. 13 MR. O'LAUGHLIN: South Delta Water Agency Exhibit 14 Number -- 15 DR. ORLOB: I don't have the specifics in front of 16 me, though. 17 MR. O'LAUGHLIN: South Delta Water Agency Exhibit 18 Number 4. 19 DR. ORLOB: I assume I'm the author of it. 20 MR. O'LAUGHLIN: Okay. Can you explain to me why 21 under that document on Page 3, the water supply 22 alternatives, you set forth the channel depletion numbers 23 for South Delta Water Agency and those numbers are 24 different than the numbers that are shown in Exhibit Number 25 22? CAPITOL REPORTERS (916) 923-5447 8866 1 DR. ORLOB: I don't have those in front of me, so I 2 can't really tell you why they may be different. 3 MEMBER DEL PIERO: For the record, you might want to 4 point out what's going on. 5 MR. O'LAUGHLIN: Yes. Basically I've given to 6 Dr. Orlob South Delta Water Agency Exhibit Number 4 from 7 the 1992 hearing. The numbers within those are set forth 8 as channel depletion numbers for South Delta Water Agency. 9 And I'm asking him to compare and contrast those with the 10 numbers set forth in South Delta Water Agency Exhibit 11 Number 22 so we get the right channel depletion numbers. 12 DR. ORLOB: Do you have the other exhibit that you're 13 referring to? 14 MR. O'LAUGHLIN: Yes, I do. 15 DR. ORLOB: I'd like to see those. 16 MR. O'LAUGHLIN: Sure. 17 DR. ORLOB: I'm afraid I don't have the -- I can't 18 compare these numbers here. They're different units, for 19 one thing. 20 MR. O'LAUGHLIN: Well, they're either in csf or 21 acre-feet? 22 DR. ORLOB: Right. 23 MR. O'LAUGHLIN: You can convert from csf to 24 acre-feet, can't you, Dr. Orlob? 25 DR. ORLOB: I think so. CAPITOL REPORTERS (916) 923-5447 8867 1 C.O. STUBCHAER: Mr. O'Laughlin, should we like to go 2 off the record for him to compare these? 3 MR. O'LAUGHLIN: If Dr. Orlob would like to, that's 4 fine with me, if that's acceptable to the Chair and the 5 Board. 6 C.O. STUBCHAER: Okay. We're off the record. 7 (Off the record from 11:16 a.m. to 11:20 a.m.) 8 C.O. STUBCHAER: All right. Now, we're back on the 9 record. 10 MR. O'LAUGHLIN: Sorry about that, Chairman 11 Stubchaer. 12 Dr. Orlob, looking at those two exhibits there is 13 differences in the numbers for depletions by month; is that 14 correct? 15 DR. ORLOB: That is correct. 16 MR. O'LAUGHLIN: Okay. Can you tell us as you sit 17 here today what numbers are the numbers that truly set 18 forth channel depletion within South Delta Water Agency? 19 DR. ORLOB: First of all, I might point out that the 20 numbers are not very different between these two exhibits. 21 I calculated for July, for example, in the one exhibit it 22 says the first 1400 cubic feet per second in July, and my 23 estimate for July is about 1300 cubic feet per second with 24 the exhibit that's attributed to me. So I don't think 25 there's a great deal of difference. CAPITOL REPORTERS (916) 923-5447 8868 1 The distribution of these numbers are more or less 2 in accord with my understanding of the net consumption in 3 proportion of the net consumptive estimated by the Bureau 4 and the Department of Water Resources for the entire Delta. 5 Of course, these values vary from year to year depending on 6 climatic conditions and water needs. 7 MR. O'LAUGHLIN: Right. But what I need to know from 8 you is: Which one of those more accurately depicts channel 9 depletion in the South Delta Water Agency? Is it South 10 Delta Water Agency Exhibit Number 22, or is it your 11 previous testimony from 1992? 12 DR. ORLOB: Well, since both are attributed to me, 13 I'll just elect to take the most recent one as probably the 14 most up-to-date, although there's some variation in those 15 from time to time. 16 MR. O'LAUGHLIN: Okay. How is it that you revised 17 your channel depletions from 1992 to this letter that we 18 see in 1997? 19 DR. ORLOB: I don't recall actually making this 20 revision. I'm not sure how this second set of numbers was 21 developed. But they're not substantially different, so I 22 don't see that there's a point to be made. 23 MR. O'LAUGHLIN: If salinity is getting worse in the 24 South Delta and more water is needed to be applied in order 25 to leach the salts out, wouldn't you expect the numbers CAPITOL REPORTERS (916) 923-5447 8869 1 that are shown in South Delta Water Agency Exhibit Number 2 22 to go up from the 1992 estimate and not down? 3 DR. ORLOB: No. I don't think they were intended to 4 represent a change in the requirements with regard to 5 salinity control. These were net channel depletion 6 requirements, what amount of water required to meet the 7 channel depletion is the difference between water applied 8 and return flows in the Delta in order to sustain 9 agriculture at a steady rate over -- during a period. 10 MR. O'LAUGHLIN: So actually -- let's take a 11 situation. If things are getting worse from 1992 through 12 1997 due to water quality and more water is needed to be 13 applied for leaching and, yet, that shows up as return flow 14 into the San Joaquin River, that would not show up in your 15 net channel depletion number; is that correct, because the 16 same amount of water is being consumptively used? 17 DR. ORLOB: These numbers reflect the consumptive use 18 requirement in the changes of the South Delta. 19 MR. O'LAUGHLIN: Okay. So if they applied more water 20 to leach out, let's say they were using 3 acre-feet and now 21 they're using 3.5 acre-feet because they have to leach out 22 the salts, we wouldn't see that in your net channel 23 depletion? 24 DR. ORLOB: I don't think these reflect change over 25 time in the amount of requirements, water requirements for CAPITOL REPORTERS (916) 923-5447 8870 1 Delta agriculture. 2 MR. O'LAUGHLIN: Dr. Orlob, do you have any 3 understanding as to whether or not the United States Bureau 4 of Reclamation has agreed to these channel depletion 5 numbers? 6 DR. ORLOB: My recollection is -- 7 MR. HERRICK: If I may? 8 MR. O'LAUGHLIN: I said "Dr. Orlob." 9 MR. HERRICK: I agree, but we're talking about two 10 different numbers. And, perhaps, you can clarify which 11 ones -- 12 MR. O'LAUGHLIN: From July 15th, 1997, South Delta 13 Water Agency Exhibit Number 22. 14 C.O. STUBCHAER: And, please, direct your comments to 15 the Chair. 16 DR. ORLOB: My recollection is that these numbers 17 were derived originally from estimates agreed upon between 18 the Department of Water Resources and the Bureau of 19 Reclamation concerning net channel depletion in the entire 20 Delta. They were prorated to the South Delta in a 21 proportion of about 25 percent of that -- those quantities 22 that were applied to the entire Delta and distributed 23 monthly in accordance with the estimates provided by both 24 the Bureau and the Department. 25 There is an agreement, a written agreement between CAPITOL REPORTERS (916) 923-5447 8871 1 the two to use those values. They're still being used, as 2 a matter of fact, in the monthly reports of the Delta 3 export quantities, or net Delta outflow. 4 MR. O'LAUGHLIN: Mr. Hildebrand, back to you. On 5 Page 2 of your document number -- item Number 7 you say, 6 (Reading): 7 "Minimize both the dollar and water cost to 8 providing the desired Vernalis April/May pulse 9 water." 10 You previously testified that you've got no 11 monetary analysis of what it would do to your recirculation 12 program; is that correct? 13 MR. HILDEBRAND: That's correct. We indicated only 14 the direction of the difference rather than the absolute 15 magnitude. 16 MR. O'LAUGHLIN: Okay. And your belief is without 17 doing an analysis, your belief is that it would cost less 18 money to do this alternative than to do other alternatives; 19 is that correct? 20 MR. HILDEBRAND: Less to do -- yes. 21 MR. O'LAUGHLIN: Okay. 22 MR. HILDEBRAND: Well, when you say "other 23 alternatives," that's a little all-inclusive. But less 24 than the San Joaquin River proposal, for example, also less 25 than buying water from contractors. CAPITOL REPORTERS (916) 923-5447 8872 1 MR. O'LAUGHLIN: Now, did you do an economic analysis 2 of comparing your recirculation concept with what is 3 Alternative Number 2 that is in front of State Water 4 Resources Control Board? 5 MR. HILDEBRAND: We did not try to analyze the 6 difference in dollar and water costs between our modified 7 proposal and the State Board's proposal 2, no. 8 MR. O'LAUGHLIN: Now, comparing your proposal to the 9 San Joaquin River Agreement, there's a dollar cost on the 10 San Joaquin River Agreement of four million dollars per 11 year, correct? 12 MR. HILDEBRAND: That's my understanding. 13 MR. O'LAUGHLIN: Okay. Now, what have you done 14 within your intellectual process to determine that your 15 proposal would cost less than four million dollars per 16 year? 17 MR. HILDEBRAND: I'm not certain I'll remember the 18 numbers as I analyze them, but I think in order of 19 magnitude I will. If you take the San Joaquin River 20 Group's estimate of the total water demand over a period of 21 years and look at the total cost, or payment to the San 22 Joaquin River Group over a number of years, then the price 23 per acre-foot of water actually supplied, if I'm not 24 mistaken, was something on the order of a hundred dollars 25 per acre-foot, but I could be wrong on that. CAPITOL REPORTERS (916) 923-5447 8873 1 Whereas, although the amount that is charged to 2 recirculate water per acre-foot, although it varies 3 according to who's getting the water and who's doing what, 4 is very much less than that. 5 MR. O'LAUGHLIN: Well, let's -- do you know what the 6 cost is to actually pump water out of the Delta and put it 7 into the DMC, what the actual cost for pumping is per 8 acre-foot? 9 MR. HILDEBRAND: I haven't been able to get a fixed 10 number on that, because it gets involved in whether that 11 includes all the overhead costs, or whether they charge 12 incremental costs, and whether they're doing it for 13 themselves, or whether they're doing it for somebody else. 14 So I haven't been able to get a number of what they would 15 actually charge to recirculate. But none of the numbers 16 that I've seen would be even close to the cost of buying 17 the water. 18 MR. O'LAUGHLIN: Okay. So let's go through the next 19 one, though. What about the capital costs associated with 20 using the DMC canal, the pumping facility in San Luis 21 Reservoir, did you factor that into the per acre-foot 22 analysis? 23 MR. HILDEBRAND: That's why I say I can't get a fixed 24 number, because sometimes they talk about incremental costs 25 and sometimes they talk about distributing the capital CAPITOL REPORTERS (916) 923-5447 8874 1 costs. And what they actually would do in the case of 2 recirculation hasn't been established. But even if they 3 put the capital cost in it's still less expensive to buy 4 water. 5 MR. O'LAUGHLIN: But your plan has a component to buy 6 water; is that correct? 7 MR. HILDEBRAND: As a backup, yes. 8 MR. O'LAUGHLIN: As we sit here today, though, 9 without providing anything to the Board, you have no 10 numbers except the belief that yours costs less than $100 11 per acre-foot; is that correct? 12 MR. HILDEBRAND: Well, that's right, but it's a 13 little like saying: Do you not know how much you would 14 save by buying a Chevrolet instead of a Cadillac, because 15 you haven't gone to the various dealers and found out what 16 kind of deal you could get. 17 MR. O'LAUGHLIN: So basically as we sit here today 18 you want the Board to believe you because you have an 19 expertise in this area about CVP charges? 20 MR. HILDEBRAND: I just ask them to consider what's 21 logical. 22 MR. O'LAUGHLIN: All right. Well, let's talk about 23 purchases of water. We put up on the board today 1993, 24 34,000 acre-feet of water. How much do you think water 25 would cost to purchase under our program from CVP CAPITOL REPORTERS (916) 923-5447 8875 1 contractors from the DMC? 2 MR. HILDEBRAND: I have no basis for assuming it 3 would cost more or less to buy from CVP contractors as 4 compared to buying it from the San Joaquin River Group. 5 MR. O'LAUGHLIN: Okay. So if any water is purchased 6 under your program you believe you could get it for about a 7 hundred dollars an acre-foot? 8 MR. HILDEBRAND: I don't know. But if we had to buy 9 some we wouldn't be buying a the whole ball of wax anyway. 10 So it's only a backup, it would not be the major component 11 of the water supply. So if you look at the combined 12 purchase and the recirculation cost it's my conviction it 13 would be less, but I can't give you a number. 14 MR. O'LAUGHLIN: Would you -- if you bought water 15 under your plan, would you include within it from CVP 16 contractors the amount of payment necessary to cover the 17 CVPIA charges? 18 MR. HILDEBRAND: I haven't considered that question, 19 but it would seem to me not logical to charge that, because 20 we're not going to consume the water. 21 MR. O'LAUGHLIN: Okay. 22 MR. HILDEBRAND: It's going to run around. 23 MR. O'LAUGHLIN: I wonder if water is actually 24 purchased in order to meet a pulse flow requirement, or a 25 flow requirement and it's not recirculated, would you CAPITOL REPORTERS (916) 923-5447 8876 1 envision paying a CVPIA charge under that scenario? 2 MR. HILDEBRAND: Probably not because you're 3 mitigating an impact of the CVP. And I don't know why you 4 would charge their customers for mitigating what the CVP is 5 responsible for mitigating. 6 MR. O'LAUGHLIN: That's the next question I wanted to 7 go into. Who's going to come up with the money to pay for 8 these aspects of your program? 9 MR. HILDEBRAND: Could well be the same people who 10 are going to come up with your 48 million dollars. 11 MR. O'LAUGHLIN: But what I'm asking for is we have 12 an agreement, the San Joaquin River Group has an agreement 13 with certain agencies to pay them money to take certain 14 actions. 15 Is it your proposal to the State Board that they 16 direct the parties to take the action and, therefore, defer 17 the cost, or are you going to look for supplemental money 18 elsewhere to help implement this program? 19 MR. HILDEBRAND: I don't see why the same monies 20 can't be used, and I don't think that the Board is 21 dictating the source of money in the case of San Joaquin 22 River Agreement. 23 MR. O'LAUGHLIN: No, I know they're not. But what 24 I'm getting at is we're sitting here in front of the Board, 25 and in order to make your program work, are you going to CAPITOL REPORTERS (916) 923-5447 8877 1 tell the Board to take actions and tell CVP to pump 2 whatever it takes to do recirculation and then the cost is 3 just borne by whoever is enforced to take the action, or 4 are you going to look for supplemental money, or ask the 5 Board that other parties should make monetary contributions 6 to help offset the impacts? 7 MR. HILDEBRAND: It's not my understanding that it's 8 up to the Board to decide how to pay for these things. 9 MR. O'LAUGHLIN: So in your situation, then, if the 10 CVP has to pump water, recirculate it around and there's 11 charges due to pumping, the DMC, San Luis -- is Jeanne 12 going crazy back there in the corner? 13 MEMBER DEL PIERO: Yeah. She got a new toy and she 14 forgot how to shut it off. 15 MR. O'LAUGHLIN: I wasn't going to be cruel, but 16 whenever you're done, Jeanne. 17 MR. HERRICK: I think an appropriate apology from the 18 relevant counsel would be appropriate. 19 MEMBER DEL PIERO: Mr. Brown, would you be kind 20 enough to go over there and help her turn it off? 21 MR. O'LAUGHLIN: Did you unplug it? Okay. Good. I 22 thought the bells were ringing in my head. 23 MEMBER DEL PIERO: They were. 24 MR. O'LAUGHLIN: Okay. 25 MEMBER DEL PIERO: You didn't indicate anything was CAPITOL REPORTERS (916) 923-5447 8878 1 wrong. 2 MR. O'LAUGHLIN: Okay. So then if I understand your 3 response, if the Board orders recirculation, if the State 4 Water Resource Control Board orders recirculation and the 5 CVP has to pump 2500 csf through its system and back around 6 for a 31-day pulse flow period, then your understanding is 7 that is a cost that will be borne by the CVP? 8 MR. HILDEBRAND: I don't think the State Board 9 requires that payment be made by some source of funds. 10 They merely say how the control plan must be implemented. 11 And it's up to the people who then have to provide that 12 implementation to come up with a means to do it. 13 MR. O'LAUGHLIN: Okay. Number 8 on Page 2 it says, 14 (Reading): 15 "Avoid water acquisitions that impact water 16 users downstream of the sellers." 17 And I got confused here, 18 (Reading): 19 "And/or export water users other than water 20 sellers." 21 It's kind of an awkward sentence. Can you explain 22 what you meant by that sentence, Mr. Hildebrand? 23 MR. HILDEBRAND: Well, let's take the two different 24 things there. 25 MR. O'LAUGHLIN: Okay. CAPITOL REPORTERS (916) 923-5447 8879 1 MR. HILDEBRAND: Our plan avoids acquiring water from 2 sellers on the tributaries, for example, that then at some 3 point in time impacts the Vernalis -- availability and 4 quality of water at Vernalis for other legal users of 5 water. 6 In the case of acquiring water from contractors, I 7 would assume that if there's any cost to the district, 8 let's say, a given member of a district were to sell water, 9 he would have to pay his share out of his water acquisition 10 cost or any overhead cost to the district. So there 11 wouldn't be any impact on people other than the party that 12 actually sold water. 13 MR. O'LAUGHLIN: Now, getting to the first part of 14 that statement, it's a long-standing position of South 15 Delta Water Agency that upstream tributaries cannot make 16 water available at other times in the year when South Delta 17 believes they should have gotten that water in the 18 summertime; is that correct? 19 MR. HILDEBRAND: I wouldn't put it that way. 20 MR. O'LAUGHLIN: Okay. You can rephrase it. Why 21 don't you make a statement as to what you think your 22 position is, vis-a-vis, upstream tributaries making water 23 available for the pulse flow period and its impacts on the 24 South Delta Water Agency? 25 MR. HILDEBRAND: Okay. If the upstream entities make CAPITOL REPORTERS (916) 923-5447 8880 1 available water for the pulse flow period by drawing down 2 their reservoirs, then at some point in time, they have to 3 refill that, or if they overdraft some groundwater, local 4 groundwater at some point in time they have to refill that. 5 And whenever that occurs the downstream flow will be 6 impaired. And the logical times expected to occur will be 7 during the summer months. 8 MR. O'LAUGHLIN: Well, I've always wanted to know 9 how are downstream rights impaired if you have instream 10 flow requirements from -- on the Merced, the Tuolumne and 11 the Stanislaus that are being met in the summer months 12 anyway? Are you saying those are being violated while the 13 reservoirs are being refilled? 14 MR. HILDEBRAND: Those instream flow requirements are 15 not developed with any eye to providing the channel 16 depletion rights in the South Delta, only the flows 17 required on the tributaries. 18 MR. O'LAUGHLIN: Okay. Now, let's say the Board, the 19 State Water Resources Control Board adopted alternative 20 number three and ordered the Tuolumne and Merced Rivers to 21 release 100,000 acre-feet of water in April to meet the 22 pulse flow. 23 You have that in your mind? 24 MR. HILDEBRAND: I'm just refreshing my mind on which 25 is alternative three. That's providing the pulse flow by CAPITOL REPORTERS (916) 923-5447 8881 1 reducing the water right priorities of people on the 2 tributaries; is that right? 3 MR. O'LAUGHLIN: Right. So let's say in this 4 situation, it's a hypothetical, that given the Board 5 implements this alternative number three and under 6 alternative number three the Merced and the Tuolumne Rivers 7 release an additional 100,000 acre-feet of water to meet 8 the pulse flow requirements. 9 Do you have that in your mind? 10 MR. HILDEBRAND: Yes. 11 MR. O'LAUGHLIN: Okay. Now, are you telling the 12 Board that by allowing or implementing the 1995 Water 13 Quality Control Plan to meet the April pulse flow period 14 that they should then turn around with alternative three 15 and tell the upstream tributaries to also release 16 additional water in June, July and August? 17 MR. HILDEBRAND: We're saying that we don't think the 18 Board should select number three, because if they did not 19 do that they will hurt us in the summer; and if they do do 20 it, they're taking rights away from the superior water 21 right holders. We don't think they should do either one. 22 MR. O'LAUGHLIN: In fact, you've raised in numerous 23 forums this question about whether or not South Delta Water 24 Agency's entitlement is to water in other times of the year 25 based on storage and diversions; is that correct? CAPITOL REPORTERS (916) 923-5447 8882 1 MR. HILDEBRAND: Yes. 2 MR. O'LAUGHLIN: And, in fact, on the Calaveras Water 3 District North Fork Stanislaus River in Order 97-05 South 4 Delta -- on Page Number 15 states, 5 (Reading): 6 "South Delta Water Agency raised issues whether 7 the proposed changes would, one, change the 8 pattern of water flows entering the 9 Sacramento/San Joaquin Delta, thereby, reducing 10 the quantity and quality of the irrigation water 11 in the Delta." 12 Is that correct? 13 MR. HILDEBRAND: That's correct. In that case if I 14 remember it correctly, the original diversion right was for 15 power generation. And when you store water and release it 16 for power generation it typically is released for power in 17 a period when it does not hurt us, in fact, helps us. 18 If, on the other hand, they're allowed to divert 19 it out of the watershed or consume it, then they do, in 20 fact, affect us. And we were objecting to a change in the 21 permit to permit them to do those latter things. 22 MR. O'LAUGHLIN: In fact, at Page Number 26 of that 23 order it states, 24 (Reading): 25 "This means that South Delta Water Agency is CAPITOL REPORTERS (916) 923-5447 8883 1 claiming injury because Calaveras County Water 2 District, ceasing to abandon a quantity of water 3 that CCWD otherwise would release from New 4 Spicer in the fall." 5 In other words, South Delta Water Agency is 6 arguing that it can require a junior appropriator who 7 stored water during the earlier season to abandon that 8 water for its benefit in a later season. Does that fairly 9 well sum up your argument, Mr. Hildebrand? 10 MR. HILDEBRAND: The water in Spicer Dam -- Spicer 11 Dam was not filled with spill water. Spicer Dam was filled 12 with water that would otherwise have come dwon the river. 13 It does not normally become filled with spill water, 14 because it's already full when you get a wet year like 15 that, at least, mostly full. 16 So that if you start consuming water outside the 17 watershed from Spicer Dam and you're not replenishing that 18 water supply with water that would otherwise be spilled, 19 you're depleting the downstream flow. Now, if that 20 depletion is put at the expense of the other people like 21 South San Joaquin Irrigation District, then that's one 22 thing. But if it's done at the expense of the riparian 23 water depletion rights on the main stem, it doesn't seem to 24 us to be the proper thing. 25 MR. O'LAUGHLIN: Well, you've kept saying that time CAPITOL REPORTERS (916) 923-5447 8884 1 and time again, it's not a proper thing. Is it a question 2 that no one is listening to you, or is it a question that 3 maybe you should give that argument up because you're 4 wrong? 5 MR. HILDEBRAND: I don't think we're wrong. 6 MR. O'LAUGHLIN: Okay. Well, the State Water 7 Resources Control Board then in its opinion under 97-05 8 goes on to say the following, 9 (Reading): 10 "A downstream water right holder cannot require 11 that the owner of an upstream reservoir release 12 water appropriated during another season." 13 And that cites to Lynnbloom (phonetic). And as 14 the Court explained, 15 (Reading): 16 "The downstream water right holder can only 17 demand that the reservoir operator bypass part 18 of water during the season when water is present 19 in the stream and is being diverted. Further, 20 an appropriator such as CCWD that has abandoned 21 water in the past, causing an artificial flow of 22 water, may cease to abandon water as it 23 increases its water use." 24 Furthermore, under 5.2.6, Page 28, it says, 25 (Reading): CAPITOL REPORTERS (916) 923-5447 8885 1 "The riparian rights of South Delta Water 2 Agency's members are not a basis for demanding 3 water from CCWD that is appropriated earlier in 4 the year. Riparian rights only attach to the 5 natural flow of the stream. Riparian rights 6 do not attach to water that someone has stored 7 from an earlier season and released, or that 8 someone has brought in from another watershed." 9 And finally in conclusion, on Page 29 of this 10 opinion, it states, 11 (Reading): 12 "In the absence of a right on the part of South 13 Delta Water Agency members to acquire Calaveras 14 County Water District to abandon water 15 previously stored in New Spicer, South Delta 16 Water Agency members cannot be injured within 17 the meaning of Water Code Section 1702." 18 So did you ever appeal the decision by the State 19 Water Resources Control Board in regards to Order 97-06, or 20 97-05, Mr. Hildebrand? 21 MR. HILDEBRAND: I don't remember whether we asked 22 for reconsideration. And I think that, with all due 23 respect, the conclusion was based in part on a failure to 24 understand that the water that was used to fill Spicer and 25 that is used to refill it is largely water that was taken CAPITOL REPORTERS (916) 923-5447 8886 1 away from downstream parties at the time that that 2 occurred. So permitting them to do that does, indeed, 3 damage us. 4 MR. O'LAUGHLIN: Okay. In fact, you subsequently 5 sued, the South Delta Water Agency and Mr. Hildebrand as an 6 individual, sued the State Water Resources Control Board 7 and its Board Members asking for declaratory relief in 8 regards to Water Code Section 1702; is that correct, in the 9 injury section thereof? 10 MR. HILDEBRAND: I believe that's right, although I 11 have trouble keeping all these legal things straight, so I 12 would defer to Mr. Herrick. 13 MR. O'LAUGHLIN: Okay. But in that decision by the 14 Court, 15 (Reading): 16 "Judgment denying complaint for declaratory 17 relief in the Superior Court for the County of 18 Sacramento, May 5th, 1998, it is ordered that 19 the Plaintiff's complaint for declaratory relief 20 regarding interpretation of the statute is 21 denied for lack of rightness on the grounds that 22 Plaintiffs have failed to show that the 23 Defendants alleged construction of Section 1702, 24 et al., of the Water Code has concretely 25 penalized the Plaintiffs in any way." CAPITOL REPORTERS (916) 923-5447 8887 1 Why -- why if you're injured so badly couldn't 2 you make a point to the Court that the Board was wrong and 3 South Delta Water Agency was being injured? 4 MR. HERRICK: Objection. Not only does it call for a 5 legal conclusion, but it's misstating the basis on which 6 the Court made the decision. Obviously, you don't want me 7 to testify. 8 MR. O'LAUGHLIN: No. 9 MR. HERRICK: Obviously there are other things 10 involved about which damages were the subject of the review 11 of the Courts, speculative or past. But that requires a 12 legal conclusion, not just a party's position on what they 13 think might have happened. 14 MR. O'LAUGHLIN: Well, if I may address that point, 15 Chairman Stubchaer? 16 C.O. STUBCHAER: Yes. 17 MR. O'LAUGHLIN: Leaving aside the point of whether 18 or not Mr. Hildebrand is an expert, but he's testified 19 about every legal theory that I know of in the State of 20 California that's applicable to water rights, and we've let 21 him testify in that vein. And, in fact, he's even said as 22 much that he's an expert in this area. 23 Secondly, I want to know what damages that they've 24 allegedly suffered due to this Board's interpretation of 25 Water Code Section 1702. And if they suffered damages, why CAPITOL REPORTERS (916) 923-5447 8888 1 could they not bring those in front of the court and show 2 them? I think that's a perfectly legitimate question. 3 C.O. STUBCHAER: Hang on just a minute. 4 MR. HERRICK: Mr. Chairman, may I address that? 5 C.O. STUBCHAER: Mr. Herrick. 6 MR. HERRICK: I don't think it's a legitimate 7 question. You're asking what happened in this case 8 legally. Now, of course, Mr. Hildebrand may have a 9 recollection of what went on, but what happened in the case 10 has to do with various legal arguments, what damages were 11 alleged at what time. 12 It's an issue that's not susceptible to an answer 13 by Mr. Hildebrand. I'm not trying to avoid the answer, but 14 you will get a response from the witness that doesn't give 15 what happened at the hearing. The attorneys were at the 16 hearing, not the witness. 17 C.O. STUBCHAER: Mr. O'Laughlin, why don't you divide 18 the question in two parts? And let's take each part on its 19 own. 20 MR. O'LAUGHLIN: Okay. You allege -- South Delta 21 Water Agency alleged injury under Water Code Section 1702; 22 is that correct? 23 MR. HILDEBRAND: Let me get back to be sure I know 24 which case you're talking about. 25 MR. O'LAUGHLIN: Calaveras County Water District. CAPITOL REPORTERS (916) 923-5447 8889 1 MR. HILDEBRAND: Okay, the alleged potential injury, 2 yes. 3 MR. O'LAUGHLIN: Okay. So under the code before any 4 permits could be issued, or any changes in places of use or 5 diversion, if there is an injury to a legal user of water 6 then that person is entitled to some -- come in front of 7 the Board and protest and hopefully get some mitigation for 8 the impacts that are being caused to the legal user? 9 MR. HILDEBRAND: That's correct. 10 MR. O'LAUGHLIN: Okay. So first off, the Board says 11 that there's no injury to South Delta Water Agency in its 12 order and denies South Delta's complaint on all legal and 13 factual bases; is that correct? 14 MR. HERRICK: Objection. That misstates the 15 statement. The Board ruled that the South Delta were not 16 legal users of water. They did not rule whether or not 17 there was any injury. 18 C.O. STUBCHAER: Okay. 19 MR. O'LAUGHLIN: Well, if -- 20 C.O. STUBCHAER: Mr. O'Laughlin. 21 MR. O'LAUGHLIN: Well, let me ask this, 22 Mr. Hildebrand: Is South Delta Water Agency a legal user 23 of water? 24 MR. HILDEBRAND: Certainly. 25 MR. O'LAUGHLIN: Okay. What water rights does South CAPITOL REPORTERS (916) 923-5447 8890 1 Delta Water Agency have? 2 MR. HILDEBRAND: As we discussed before, the Agency 3 itself does not have the water rights. We act on behalf of 4 our landowners who do hold the water rights. 5 MR. O'LAUGHLIN: That is correct. Could you point 6 out to me where in 97-05 or 97-06 it says your basis for 7 not getting relief is that you're not a legal user of 8 water, rather than you're not legally entitled to the 9 relief that you seek? 10 MR. HERRICK: I would object. That's argumentative. 11 Mr. O'Laughlin just read the part where the Board's order 12 said, "Cannot claim injury as legal users of water." 13 C.O. STUBCHAER: And that's in the order? 14 MR. HERRICK: Yes. 15 MR. O'LAUGHLIN: It says, 16 (Reading): 17 "South Delta Water Agency's members cannot be 18 injured within the meaning of Water Code Section 19 1702, the CCWD's water use reduces the amount of 20 abandoned water at SDWA can appropriate outside 21 the CCWD's diversion of season." 22 It doesn't say anything about legal user of water. 23 C.O. STUBCHAER: So what's the question? 24 MR. O'LAUGHLIN: So my question to Mr. Hildebrand is, 25 getting back to his complaint for relief in front of the CAPITOL REPORTERS (916) 923-5447 8891 1 Superior Court: 2 What were your damages that you were claiming in 3 front of the Superior Court? 4 MR. HERRICK: Objection. We just went from the 5 Calaveras County's -- the order of the Calaveras County 6 petition to a claim for declaratory relief which is not 7 based on specific past injury. 8 MR. O'LAUGHLIN: Well, rather than have Mr. Herrick 9 testify, South Delta Water Agency went to court and claimed 10 that it was being injured due to the application of Water 11 Code Section 1702. And this is a very important point. 12 We have to get it clear here as to whether or not 13 their claim is a claim of right, or is it a, i.e., legal 14 interpretation, or is it a factual question, i.e., water is 15 being misappropriated and is not showing up to where they 16 think it is? 17 And what I want to do by this line of 18 cross-examination, in fact, I've got four other judgments 19 here, is to go through with Mr. Hildebrand that Section 20 1702 is not applicable to South Delta Water Agency, because 21 his claim doesn't fit within the legal definition, i.e., a 22 riparian is only entitled to the unimpaired flow of the 23 stream in correspondence to other riparians. 24 Two, if an upstream appropriator is appropriating 25 water and then changes its appropriation practices so as CAPITOL REPORTERS (916) 923-5447 8892 1 water does not show up in the channel, they're entitled to 2 do that under the law. And no matter how much 3 Mr. Hildebrand doesn't like it, that's the law. 4 Now, that's a different case than whether or not 5 he's actually being injured, i.e., practically or 6 physically water is not showing up at his station, or his 7 place to divert. And I want to get those things cleared up 8 in this cross-examination. 9 C.O. STUBCHAER: Before we go off the record, 10 Mr. Herrick, do you have a response? 11 MR. HERRICK: I would like to ask what that colloquy 12 was about. Is Mr. O'Laughlin testifying as to the legal 13 issues, or the factual issues? The issue here is whether 14 or not the question was confused. 15 My objection has been to the confusion of a -- the 16 Calaveras County application resulted -- excuse me for not 17 remembering the number of the order, and a declaratory 18 relief action that was brought in State Court. Mr. 19 O'Laughlin's preferences for what the Board should rule to 20 South Delta's position are irrelevant to whether or not 21 those questions were confused. 22 MR. O'LAUGHLIN: Could I have briefly one short 23 response? 24 C.O. STUBCHAER: Yes. 25 MR. O'LAUGHLIN: All I want to get clear on the CAPITOL REPORTERS (916) 923-5447 8893 1 record is the position that South Delta Water Agency taking 2 that it is harmed, is that a position that is, that is 3 supported factually, i.e., enough water is not showing up, 4 salinity has gotten bad, we can't irrigate, or is the 5 question a legal question that I'm entitled to this water 6 coming down the stream system, therefore, that water must 7 be there when I want it to be there? 8 That's the two differences that I want to set up 9 by this cross-examination. 10 C.O. STUBCHAER: Okay. We're going to take that 11 objection under advisement. We'll take a lunch break right 12 now and we'll reconvene at 1:00 p.m. 13 (Luncheon recess.) 14 ---oOo--- 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 8894 1 TUESDAY, JANUARY 19, 1999, 1:00 P.M. 2 SACRAMENTO, CALIFORNIA 3 ---oOo--- 4 C.O. STUBCHAER: Good afternoon. We will come back 5 to order. And pursuant to your request, Mr. Nomellini, we 6 will have a discussion of the order of proceedings. 7 Please, go ahead. 8 MR. NOMELLINI: All right. As I understand from 9 Mr. O'Laughlin, he was kind to yield the podium, that he 10 will not be finished prior to 3:00. And if that's the 11 case, I spoke to Mr. Herrick and Mr. Herrick has redirect, 12 but he would like to get Dr. Orlob completed today, if 13 possible. 14 So we talked about the possibility that South 15 Delta could complete Dr. Orlob's redirect and recross 16 today, possibly, optimistically. Dr. Orlob is not 17 available tomorrow. 18 My problem with Tom Zuckerman is, if at all 19 possible, we'd like him to attend the levees and channels 20 meetings from 9:00 to 12:00 tomorrow. So our tentative 21 discussion -- and I did not talk to every party here and I 22 don't want to represent that -- I want to open the subject 23 up. The discussion I had with a couple of people was the 24 possibility that the redirect and recross of Alex could go 25 tomorrow morning. CAPITOL REPORTERS (916) 923-5447 8895 1 Mr. Brandt, if it's convenient for him he has his 2 opening statement he wants to make. Then I think Reed 3 Roberts has a witness he wants to put on in the afternoon 4 as well. But I think we may very well use up the morning 5 such that I could let Zuckerman go to that meeting, bring 6 him in the afternoon then Reed Roberts' witness would be 7 available in the afternoon, too. We'd take up probably a 8 good part of the afternoon. 9 MR. HERRICK: Ms. Cahill has her opening statement. 10 MR. NOMELLINI: Virginia wants to do a statement in 11 the morning, right? 12 MR. HERRICK: I think so. 13 MR. NOMELLINI: Brief statement, I think ten minutes, 14 something like that. 15 C.O. STUBCHAER: Any comments? 16 MR. NOMELLINI: Gallery had a some questions. Is 17 Virginia here? You wanted to do an opening statement in 18 the morning? 19 MS. CAHILL: Yes, that would be fine. I'm unable to 20 be here in the afternoon tomorrow. 21 C.O. STUBCHAER: Mr. Gallery, did you wish to make a 22 comment? 23 MR. GALLERY: Yes, Mr. Chairman. My concern would be 24 whether I should to try to have Mr. McCullough here 25 tomorrow for Tuolumne Utilities District. I think our case CAPITOL REPORTERS (916) 923-5447 8896 1 would take some time and it looks like we might just get 2 the first part of it tomorrow. And the question is would I 3 take the chance of not having him come tomorrow and waiting 4 until next week, that would be my concern. 5 C.O. STUBCHAER: So is Mr. Brandt here? Anyone 6 representing the Bureau? 7 MR. RENNINGS: Yes. 8 C.O. STUBCHAER: Do you know how long his statement 9 will be? 10 MR. RENNINGS: His statement would be very short. 11 MR. NOMELLINI: I asked him that question and he said 12 about five minutes, but you know how lawyers are. 13 C.O. BROWN: That's all he wants to do is opening 14 statement? 15 C.O. STUBCHAER: Yes. 16 MR. ROBERTS: Mr. Chairman, excuse me? 17 C.O. STUBCHAER: Yes. 18 MR. ROBERTS: Reed Roberts for Central San Joaquin. 19 We are after the Central Delta. Our presentation would 20 probably take about 15 minutes not counting 21 cross-examination. I am not available tomorrow morning, 22 but would be available tomorrow afternoon with my witness. 23 C.O. STUBCHAER: All right. Staff have any comments? 24 MS. LEIDIGH: No. 25 C.O. STUBCHAER: It seems to me that Mr. Gallery's CAPITOL REPORTERS (916) 923-5447 8897 1 request is reasonable, probably won't have time for your 2 case tomorrow afternoon. And then as I understand it, we 3 would have the recross and redirect of Dr. Orlob this 4 afternoon, after the conclusion of the cross-examination of 5 the panel. 6 MR. NOMELLINI: If possible. 7 C.O. STUBCHAER: And then defer redirect and recross 8 of Mr. Hildebrand until tomorrow morning, is that it? 9 MR. NOMELLINI: If that's agreeable to the parties. 10 C.O. STUBCHAER: You know I always think it's 11 somewhat inefficient to do it in two parts rather than one 12 part, but given the situation if we can accomplish -- 13 Mr. O'Laughlin? 14 MR. O'LAUGHLIN: Well, what I was planning on doing 15 this afternoon it kind of fits in with this. If the Board 16 doesn't mind what I'd like to do is ask Mr. Orlob all the 17 questions that I have for him, finish -- sorry, Dr. Orlob, 18 and finish Dr. Orlob. 19 And then I can wait until tomorrow to finish my 20 cross-examination of Mr. Hildebrand if we have to go that 21 far. And then Mr. Herrick can do redirect. That will take 22 up most of the morning anyway. We can finish Dr. Orlob 23 today I'm pretty sure, I have about an hour of questions 24 for him -- not even, maybe. 25 C.O. STUBCHAER: So you're suggesting finish your CAPITOL REPORTERS (916) 923-5447 8898 1 cross-examination of Dr. Orlob only? 2 MR. O'LAUGHLIN: Right. 3 C.O. STUBCHAER: Then we go to redirect from 4 Dr. Orlob? 5 MR. O'LAUGHLIN: Yes. Redirect, recross for 6 Dr. Orlob, then Dr. Orlob would be finished. And then -- I 7 know you don't like hearing this, Alex, but bringing 8 Mr. Hildebrand back tomorrow morning. I'll finish my 9 cross-examination of Mr. Hildebrand. 10 Mr. Herrick can do his redirect, recross. That 11 will probably take us up through the noon hour with other 12 parties asking other questions based on the redirect. And 13 then if we need to we can start Central Delta Water Agency 14 in the afternoon. 15 C.O. STUBCHAER: Mr. Herrick, does this proposed 16 procedure give you adequate time to prepare your redirect? 17 MR. HERRICK: Yes. Dr. Orlob's redirect will be 18 very, very brief. 19 C.O. STUBCHAER: All right. Mr. Brown. 20 C.O. BROWN: If that's going to take us up until 21 noon, how do we get to Ms. Cahill? 22 MS. CAHILL: I'd be happy to wait until next week. I 23 can do it if you get to me, if you don't get to me I can do 24 it the following week. It looks like you have the 25 afternoon full in any case. CAPITOL REPORTERS (916) 923-5447 8899 1 MR. O'LAUGHLIN: Or you can do it today in the 2 afternoon. 3 C.O. STUBCHAER: We'll see how the time goes. All 4 right, seeing no objection we'll follow the procedure just 5 discussed. 6 MR. GALLERY: So then, Mr. Chairman, I'm free to tell 7 Mr. McCullough next week, be ready next week? 8 C.O. STUBCHAER: Yes. That's correct. Next week we 9 meet on the 26th, 27th and 28th. 10 C.O. BROWN: What about Mr. Zuckerman? 11 C.O. STUBCHAER: He's in the afternoon, tomorrow 12 afternoon. 13 C.O. BROWN: Tom Zuckerman tomorrow afternoon? 14 C.O. STUBCHAER: Yeah. 15 MR. O'LAUGHLIN: And the 28th is half day, right, 16 because in the afternoon we are doing a workshop? 17 C.O. STUBCHAER: That's correct. 18 C.O. BROWN: And Mr. Brandt will be doing his opening 19 statement? 20 C.O. STUBCHAER: Yes. Now, we have an objection 21 pending that we're going to rule on, if you're ready. 22 MR. O'LAUGHLIN: Yes. 23 C.O. STUBCHAER: We're going to partially sustain 24 Mr. Herrick's objection. Mr. Hildebrand should not be 25 required to answer questions about the Court and Board CAPITOL REPORTERS (916) 923-5447 8900 1 decisions or the law involved in them. 2 But Mr. O'Laughlin will be allowed to ask 3 Mr. Hildebrand factual questions about what he considers 4 actual physical injury to water users in the Southern 5 Delta, and should not ask questions on what constitutes 6 legal injury to other water users resulting from changes in 7 water rights. 8 And, Mr. O'Laughlin, you can ask the Board to take 9 official notice of the various State Board and Court 10 decisions. These are officially noticeable decisions and 11 orders and do not require a witness to bring them into the 12 record. And after Phase II-A is completed, you both can 13 file briefs addressing the issues involved in the decisions 14 and orders. The briefs should include sections that focus 15 on the application of the decisions and orders to the 16 issues raised in this phase of the hearing. 17 MR. O'LAUGHLIN: Thank you very much, Mr. Chairman. 18 C.O. STUBCHAER: You may proceed. 19 MR. O'LAUGHLIN: Dr. Orlob, I'm referring to South 20 Delta Water Agency 34-A, which is your revised testimony 21 for these proceedings. On the first page it says on the 22 bottom of the first paragraph, 23 (Reading): 24 "South Delta Water Agency believes that any 25 action taken to transfer water outside the CAPITOL REPORTERS (916) 923-5447 8901 1 basin," I'm going to skip the rest for right 2 now, "will increase the frequency and severity 3 of the violations of water quality of flow 4 objectives already in place." 5 What are you referring to about water being 6 transferred outside the basin? 7 DR. ORLOB: I had specific reference to an agreement, 8 or tentative agreement between the Bureau of Reclamation 9 and the Stockton East Water District to start with as a 10 possible recipient of water from New Melones or the 11 Stanislaus drainage. 12 MR. O'LAUGHLIN: Okay. So if I understand that 13 testimony correctly then, then South Delta Water Agency is 14 opposed to Stockton East Water District getting a supply of 15 water out of New Melones? 16 DR. ORLOB: Well, I wouldn't say it in quite those 17 terms. I think that we believe that such an arrangement 18 without some method of compensation would be detrimental to 19 the interest of the South Delta Water Agency. 20 MR. O'LAUGHLIN: Okay. Why don't you explain to us 21 what compensation South Delta Water Agency would be looking 22 for from either the Bureau, or Stockton East if Stockton 23 East was to get a supply of water from New Melones. 24 DR. ORLOB: I'm not sure what would be an appropriate 25 accommodation, some consideration in the operation of New CAPITOL REPORTERS (916) 923-5447 8902 1 Melones, I presume, to the downstream water targets. 2 MR. O'LAUGHLIN: Okay. Are you -- in this sentence 3 are you concerned with any other transfers of water outside 4 of the basin? 5 DR. ORLOB: Well, I would say in the general sense we 6 are concerned with transfers that would go outside of the 7 basin, because we believe the basin has reached the level 8 of development which doesn't tolerate any extra basin 9 transfers beyond what is already legally in place. 10 MR. O'LAUGHLIN: When you refer to the basin in that 11 sentence, are you referring to the San Joaquin River basin, 12 or are you referring specifically to the Stanislaus River 13 basin? 14 DR. ORLOB: Well, both. In a broader sense the San 15 Joaquin River basin, because that's the basin that is 16 tributary to Vernalis and that is, of course, the lands 17 that -- the South Delta Water Agency, but also specifically 18 the New Melones and the Stanislaus River basin. 19 MR. O'LAUGHLIN: Okay. What -- what water transfers 20 are you aware of in the last five years that have taken 21 place in the San Joaquin River basin that has taken water 22 outside of the San Joaquin River basin? 23 DR. ORLOB: I'm not aware of any specific ones that 24 have actually been implemented. 25 MR. O'LAUGHLIN: The other part of that sentence is CAPITOL REPORTERS (916) 923-5447 8903 1 that, 2 (Reading): 3 "South Delta Water Agency believes that any 4 actions taken to reallocate present resources 5 geographically will increase the frequency and 6 severity of violations." 7 Can you tell me what you mean by that? 8 DR. ORLOB: Well, if the natural water course is -- 9 water from the natural water course is diverted to another 10 location within the basin, this changes the local water 11 balance and could affect water quality in those areas that 12 drain from that basin. 13 MR. O'LAUGHLIN: Have you done any analysis about 14 what waters are presently being reallocated geographically 15 that may impact water quality at Vernalis? 16 DR. ORLOB: Well, other than those that are already 17 in place in terms of the Central Valley Project, for 18 example, water being allocated to use within the San 19 Joaquin basin. This is a historic reallocation of water of 20 the San Joaquin. 21 MR. O'LAUGHLIN: Okay. So by that sentence then am I 22 to understand that what you're concerned about there is 23 that the Friant unit is allocating water that previously 24 went down the San Joaquin River? 25 DR. ORLOB: That's an example of an extra basin CAPITOL REPORTERS (916) 923-5447 8904 1 transfer. 2 MR. O'LAUGHLIN: Well, no. I'm interested in ones 3 that reallocate present resources geographically. It seems 4 to me that there's a present -- there's a resource that's 5 presently being used geographically and you're concerned if 6 that is used someplace else geographically. 7 DR. ORLOB: That's correct. 8 MR. O'LAUGHLIN: Okay. Now, would that statement 9 also hold true if the State Water Resources Control Board 10 adopted the implementation of the 1995 Water Quality 11 Control Plan, that statement that the allocation of present 12 resources geographically may be shifted? 13 DR. ORLOB: I'm not aware of any specifics in that 14 proposal that would call for reallocation geographically. 15 MR. O'LAUGHLIN: Okay. How much time have you spent 16 reviewing the 1995 Water Quality Control Plan? 17 DR. ORLOB: Not very much, roughly a few hours. 18 MR. O'LAUGHLIN: Okay. How much time did you spend 19 reviewing the State Water Resources Control Board's Draft 20 EIR? 21 DR. ORLOB: I haven't spent much time reviewing that. 22 MR. O'LAUGHLIN: About an hour or two? 23 DR. ORLOB: I would say that's reasonable. 24 MR. O'LAUGHLIN: How much time did you spend 25 reviewing the supplement to the State Water Resources CAPITOL REPORTERS (916) 923-5447 8905 1 Control Board Draft EIR? 2 DR. ORLOB: About the same. 3 MR. O'LAUGHLIN: Have you reviewed any of the other 4 testimony that's been presented by any of the other parties 5 to this proceeding prior to your testimony? 6 DR. ORLOB: Only the testimony of Mr. Steiner. 7 MR. O'LAUGHLIN: Your expertise is in modeling; is 8 that correct? 9 DR. ORLOB: In modeling with surface water systems, 10 that is one area that I've had some experience with. 11 MR. O'LAUGHLIN: Have you done any modeling for South 12 Delta Water Agency in preparation for your testimony here 13 today? 14 DR. ORLOB: I did a water balance study for the 15 Stanislaus basin with respect to waters allocated from New 16 Melones into the lower portion of the basin. 17 MR. O'LAUGHLIN: That was specifically for the 18 Stanislaus River; is that correct? 19 DR. ORLOB: That's correct. 20 MR. O'LAUGHLIN: And that's South Delta Water Agency 21 Exhibit Number 9? 22 DR. ORLOB: I think so. 23 MR. O'LAUGHLIN: You have that in front of you? You 24 have Exhibit 9? 25 DR. ORLOB: I have 8 but not 9. CAPITOL REPORTERS (916) 923-5447 8906 1 MR. O'LAUGHLIN: That's okay. Is that Exhibit 9? 2 Okay. Great. Let's go, then, to the second page of your 3 testimony and go through some of your exhibits, Figure 4 Number 1. Thank you, Mr. Herrick. This is South Delta 5 Water Agency Exhibit Number 1. 6 Over in the right-hand corner it says "GTO 389." 7 Do you see that? 8 DR. ORLOB: I do. 9 MR. O'LAUGHLIN: Okay. Does "GTO" stand for you, 10 Dr. Orlob? 11 DR. ORLOB: Those are my initials. 12 MR. O'LAUGHLIN: Okay. So we can -- based on this 13 document it was prepared on or about March of '89; is that 14 correct? 15 DR. ORLOB: That's correct. 16 MR. O'LAUGHLIN: Now, is the gist of this that with 17 all these dams going in, the San Joaquin River and its 18 tributaries are overcommitted? 19 DR. ORLOB: This illustrates the development of 20 storage capacity within the San Joaquin drainage, which I 21 believe is indicative of the level of commitment to water 22 in storage. And I believe that closely approximates the 23 total capacity of the system. 24 MR. O'LAUGHLIN: Well, it says here on the highlight 25 on Page 1 of your exhibit, CAPITOL REPORTERS (916) 923-5447 8907 1 (Reading): 2 "Historic development of water resources in the 3 San Joaquin River basin has resulted in over 4 exploitation of the limited available surface 5 water resource, that they resulted in diminution 6 of net outflow at Vernalis." 7 Do you see that? 8 DR. ORLOB: I'm not sure which figure you're 9 referring to there. 10 MR. O'LAUGHLIN: First page of your exhibit. 11 DR. ORLOB: First page. 12 MR. O'LAUGHLIN: South Delta Water Agency Exhibit 13 34-A. 14 DR. ORLOB: Yes. All right. 15 MR. O'LAUGHLIN: Okay. Well, let's look at this 16 chart. Do you need a pointer? Here, I have a pointer for 17 you, Dr. Orlob. 18 DR. ORLOB: Okay. 19 MR. O'LAUGHLIN: Okay. Why don't you point on this 20 chart to the project that caused the overexploitation of 21 the limited resources in the San Joaquin River? 22 DR. ORLOB: Well, this is a history of development of 23 water storage within the San Joaquin basin. So one can't 24 say that there's any specific example. It's a cumulative 25 affect of developments within the basin that provide for CAPITOL REPORTERS (916) 923-5447 8908 1 storage -- 2 MR. O'LAUGHLIN: Okay -- 3 DR. ORLOB: -- a portion of the water that would be 4 basin yield. 5 MR. O'LAUGHLIN: So, well, if it's cumulative there 6 must be a point in time where the cumulative impact becomes 7 an overexploitation. So when does the cumulative impact 8 become an overexploitation in this chart? Is it when New 9 Exchequer is built? 10 DR. ORLOB: Well, I think that it's probably reached 11 that point about 1980 or thereabouts. 12 MR. O'LAUGHLIN: Okay. So only after New Melones is 13 built do we have overexploitation of the resource? 14 DR. ORLOB: I would say if New Melones came on-line 15 about 1978, I think that is right. 16 MR. O'LAUGHLIN: Right. 17 DR. ORLOB: And that would be about the time. 18 MR. O'LAUGHLIN: Okay. So up until that time we've 19 not overexploited the resource, but when New Melones comes 20 on we go over the edge? 21 DR. ORLOB: I wouldn't put it all on New Melones, but 22 I think that's -- 23 MR. O'LAUGHLIN: Okay. One -- 24 DR. ORLOB: In time it's appropriate. 25 MR. O'LAUGHLIN: Okay. One of the underlying CAPITOL REPORTERS (916) 923-5447 8909 1 assumptions of this is that on Page 2 you state, 2 (Reading): 3 "Accordingly irrigated areas expanded and 4 diversions for irrigation increased." 5 How is it -- what is your understanding that when 6 New Melones was built how many more irrigable acres of land 7 was added in the San Joaquin River for agricultural 8 purposes based on the supply of water from New Melones? 9 DR. ORLOB: I'm not aware that there was any 10 substantial increase in area under irrigation in the 11 Stanislaus drainage as a result of New Melones coming 12 on-line. It's the total effect that I was referring to 13 within the San Joaquin basin which indicates that water 14 diverted to agriculture has steadily increased over time 15 until the recent times. 16 MR. O'LAUGHLIN: Yeah. But isn't it true, Dr. Orlob, 17 on Page 2 of your testimony you state that a major 18 underlying premise for that belief is with the storage 19 projects coming on-line it says, 20 (Reading): 21 "Accordingly, irrigated acres expanded." 22 So what I want to know is: How did the irrigated 23 acres expand from New Melones based on storage? 24 DR. ORLOB: I don't contend that New Melones, per se, 25 increased the storage. CAPITOL REPORTERS (916) 923-5447 8910 1 MR. O'LAUGHLIN: Okay. 2 DR. ORLOB: The irrigated acre within the Stanislaus 3 basin, that was pretty well established by the previous 4 allocations to -- well, diversions made to agriculture 5 within the Stanislaus basin. 6 MR. O'LAUGHLIN: Okay. So let's go to New Don Pedro. 7 New Don Pedro, I don't know, it looks like it comes on-line 8 in 1970. How many more acres of irrigated land were added 9 due to the completion of New Don Pedro? 10 DR. ORLOB: I'm not sure what the actual acreage 11 would be, but these projects were brought on-line for the 12 purpose of making available water largely to agriculturists 13 as well as development of hydropower. I think hydropower 14 was secondary at the outset and became primary in the 15 longer run. 16 MR. O'LAUGHLIN: Yeah. But what I want to know is, 17 specifically, your underlying assumption for these 18 statements is that the irrigated acreage expanded. So if I 19 went through each one of these for New Don Pedro, for 20 Cherry Valley, for Millerton Lake, your statement is you 21 don't know how many irrigated acres were brought on-line 22 strictly due to storage at these new facilities; is that 23 correct? 24 DR. ORLOB: No, I don't know specifically. I do know 25 that the amount of water diverted to irrigation districts CAPITOL REPORTERS (916) 923-5447 8911 1 within the San Joaquin basin increased in accordance more 2 or less with the development of storage capability to make 3 possible those deliveries over the entire period -- 4 history of development in the San Joaquin basin. 5 MR. O'LAUGHLIN: Okay. So as we sit here today in 6 front of the Board we don't know how many acres were added 7 due to the storage; is that correct? 8 DR. ORLOB: No, I do not know specifically. 9 MR. O'LAUGHLIN: Okay. So the next one you say is, 10 "Consumptive use by crops increased". What information do 11 you have that by adding these storage facilities 12 consumptive use by crops increased? 13 DR. ORLOB: If there was an increase in diversion to 14 agriculture over this period and that water is to be used 15 for growing crops, then I presume that there would be an 16 increase in the consumptive use associated with the 17 increased diversion to agriculture, assuming, of course, 18 the efficiency of agricultural water use was more or less 19 constant throughout that period. 20 MR. O'LAUGHLIN: Isn't it true that the real effect 21 of storage projects, Dr. Orlob, is to take water that 22 otherwise would go to the Bay in wet periods of time and 23 hold it over for storage for irrigation purposes in dry 24 years when that water would not be made available? 25 DR. ORLOB: Certainly, that's one of the important CAPITOL REPORTERS (916) 923-5447 8912 1 uses. 2 MR. O'LAUGHLIN: And, in fact, we saw that in the 3 1992 through '96 drought; is that correct? 4 DR. ORLOB: I believe that's correct. 5 MR. O'LAUGHLIN: Okay. So the irrigated acreage may 6 not have increased, the consumptive use by crops may not 7 have increased, but what may have happened is the 8 reallocation of water resources from a wintertime to a 9 storage to be used in dry periods; is that correct? 10 DR. ORLOB: That's correct. 11 MR. O'LAUGHLIN: Let's see, if you could, 12 Mr. Herrick, please, South Delta Water Agency Exhibit 13 Number 2 on the screen, please. 14 Now, one of your factual underpinnings for your 15 belief of the overcommitment of the resource in the San 16 Joaquin River in the buildup is due to Figure Number 2; is 17 that correct? 18 DR. ORLOB: This is illustrative of that buildup over 19 time. 20 MR. O'LAUGHLIN: All right. Now, where did you get 21 the numbers, the diversion numbers for the districts 22 located in the center of the exhibit: South San Joaquin, 23 Oakdale, Turlock, Modesto, Merced, Madera and Friant? 24 DR. ORLOB: This came from U.S. Geological records of 25 diversions to each irrigation district as reported in U.S. CAPITOL REPORTERS (916) 923-5447 8913 1 Geological Survey water supply papers. 2 MR. O'LAUGHLIN: Okay. Now, as far as looking at 3 this this only deals with the basins -- four basins. And 4 there appears to be a major basin missing. And that's what 5 I would call the San Joaquin basin west of the Stanislaus 6 River -- I mean west of the San Joaquin River; is that 7 correct? 8 DR. ORLOB: That's not included in these numbers. 9 MR. O'LAUGHLIN: Does this number include any of the 10 riparian users along the river? 11 DR. ORLOB: The lesser diversions, the small 12 diversions made along the river made by riparian users are 13 not included in these numbers. 14 MR. O'LAUGHLIN: Well, let's take South Delta Water 15 Agency. Their water use is around 300,000 acre-feet a 16 year, approximately, isn't it? 17 DR. ORLOB: I would guess that's a reasonable number. 18 MR. O'LAUGHLIN: Ballpark. When did they start 19 diverting? 20 DR. ORLOB: Well, they've been diverting water as 21 long as there's been water in their South Delta channels. 22 So it's been a long time in the case of riparians that 23 developed in that area. 24 MR. O'LAUGHLIN: So when it says, "A better example 25 for the San Joaquin River system," we should add 300,000 CAPITOL REPORTERS (916) 923-5447 8914 1 acre-feet on this chart for South Delta Water Agency, 2 shouldn't we? 3 DR. ORLOB: These are diversions that were within the 4 hydrologic unit that I would refer to as the San Joaquin 5 basin that's tributary to Vernalis. 6 MR. O'LAUGHLIN: Right. 7 DR. ORLOB: So below Vernalis is -- the South Delta 8 Water Agency was not included for that reason, it's outside 9 of the basin. You might say that these represent 10 diversions upstream of Vernalis. 11 MR. O'LAUGHLIN: So your understanding then is that 12 South Delta Water Agency is outside the San Joaquin River 13 basin? 14 DR. ORLOB: No, it's not outside the basin entirely. 15 It is outside of the basin defined by -- well, let's say, 16 downstream of Vernalis. 17 MR. O'LAUGHLIN: Well, what is the purpose of this 18 chart? What are you trying to show in Figure Number 2? 19 DR. ORLOB: Progressive development of water diverted 20 to agricultural use within the basin -- 21 MR. O'LAUGHLIN: So south -- 22 DR. ORLOB: -- upstream of Vernalis. 23 MR. O'LAUGHLIN: So there's a qualifier. So it's 24 upstream of Vernalis? 25 DR. ORLOB: Clearly. CAPITOL REPORTERS (916) 923-5447 8915 1 MR. O'LAUGHLIN: Water development in the basin? 2 DR. ORLOB: Clearly. Yes. 3 MR. O'LAUGHLIN: Okay. Where on that chart is the 4 San Joaquin River Exchange Contractors? 5 DR. ORLOB: They're not included on this figure, west 6 side -- I should say east side of the valley diversions. 7 MR. O'LAUGHLIN: Well, aren't they upstream of 8 Vernalis? 9 DR. ORLOB: Yes. 10 MR. O'LAUGHLIN: And don't they take water from the 11 San Joaquin River? 12 DR. ORLOB: They do. 13 MR. O'LAUGHLIN: Okay. So why don't we have them on 14 the chart? 15 DR. ORLOB: They could be included. I haven't any 16 particular reason for excluding them. 17 MR. O'LAUGHLIN: Well, let me do something here. I 18 kind of took a stab at it. This is my layman's attempt at 19 this, but one of the things is that if the San Joaquin 20 River Exchange Contractors presently have a contract for 21 854,000 acre-feet of water from the United States Bureau of 22 Reclamation, or thereabouts, and that is the believed 23 consumptive use of the San Joaquin River Exchange 24 Contractors prior to the Exchange being entered into, 25 so when you add up that number the line really starts to CAPITOL REPORTERS (916) 923-5447 8916 1 flatten out a little bit, doesn't it? 2 C.O. STUBCHAER: Would you identify that line in this 3 exhibit? 4 MR. O'LAUGHLIN: Sure. It's Figure Number 2 and you 5 know I might want to mark this. I'll mark this as San 6 Joaquin River Group Authority Number 30, next in order. 7 There is a line -- 8 MR. NOMELLINI: I'd like to cross-examine 9 Mr. O'Laughlin now that he's testified to these values. 10 MR. O'LAUGHLIN: Yeah, sure. 11 Okay. So I roughly tried to pencil in the San 12 Joaquin River Exchange Contractors into -- into the chart. 13 So the diversions begin to flatten out; is that correct? 14 DR. ORLOB: I need a clarification of your chart. 15 I'm presuming that what you've done is add an increment 16 that is associated with the Exchange Contractors -- 17 MR. O'LAUGHLIN: That is correct. 18 DR. ORLOB: -- to the historic record for these 19 other four diversions? 20 MR. O'LAUGHLIN: That is correct. 21 DR. ORLOB: Okay. 22 MR. O'LAUGHLIN: Now, another thing I'd like to point 23 out -- 24 C.O. STUBCHAER: Mr. O'Laughlin. 25 MR. O'LAUGHLIN: Yes. CAPITOL REPORTERS (916) 923-5447 8917 1 C.O. STUBCHAER: Mr. Nomellini did raise an 2 interesting point. 3 MR. O'LAUGHLIN: Okay. 4 C.O. STUBCHAER: How was this chart established and 5 who's the person who can testify to it? 6 MR. O'LAUGHLIN: I'm just letting the witness assume 7 that. I put this on the chart to represent the Exchange 8 Contractors. So he doesn't have to -- there's no facts in 9 front of him. 10 MEMBER DEL PIERO: It's a hypothetical? 11 MR. O'LAUGHLIN: It's a hypothetical. Just assume 12 that this is the number. If this is correct -- 13 MR. NOMELLINI: Well, then I would ask -- 14 C.O. STUBCHAER: Just a moment. Mr. Nomellini. 15 MR. NOMELLINI: I would ask that Mr. O'Laughlin's 16 statement of the 854,000 acre-feet be stricken from the 17 record, or they be noted that it's not a fact but part of a 18 hypothetical that assumes the 854,000. 19 C.O. STUBCHAER: We will note that it is part of a 20 hypothetical and the Board will give consideration of that 21 fact in weighing the -- I can't even call it testimony, 22 the statements that were made. 23 MR. O'LAUGHLIN: Thank you very much, Chairman 24 Stubchaer. 25 So the water diverted to irrigation begins to CAPITOL REPORTERS (916) 923-5447 8918 1 flatten out much more earlier in this scenario than it does 2 under your presentation? 3 DR. ORLOB: If we include the Exchange Contractors' 4 diversions then that's the apparent result. 5 MR. O'LAUGHLIN: Okay. Now, I want to focus in on 6 the time period of 1918 to 1934 on this chart. Do you know 7 what water conditions were like in 1918 to 1934? 8 DR. ORLOB: By "water conditions" you mean what? 9 MR. O'LAUGHLIN: The hydrologic years. Were they 10 wet? Were they dry? Was it a below-normal year? Was it 11 an average year? 12 DR. ORLOB: I think the record is available. I don't 13 have it right in my mind at the moment. 14 MR. O'LAUGHLIN: Were most of the projects between 15 1918 and 1934 relying on direct diversions or storage 16 rights? 17 DR. ORLOB: Well, I think a little of both. I'm not 18 absolutely certain how they were apportioned. But the 19 direct diversions and -- I think probably the west side of 20 the valley was largely direct diversions from the river. 21 There were some direct diversions on the east side of the 22 valley. 23 MR. O'LAUGHLIN: If 1918 through 1934 were below 24 normal and dry and critically dry years for the most part, 25 that would express the amount of water being diverted CAPITOL REPORTERS (916) 923-5447 8919 1 within these four sub basins; is that correct? 2 DR. ORLOB: It probably would have, yes. 3 MR. O'LAUGHLIN: Did you do any comparison when you 4 did Exhibit Number 2 comparing the availability of water 5 supply to the amount actually diverted? 6 DR. ORLOB: No, I did not. 7 MR. O'LAUGHLIN: Okay. Can you point me to some 8 agricultural document, or report which shows that the 9 irrigated acreage from Friant to Stockton in the San 10 Joaquin Valley increased from 1952 to the present; and then 11 by how much? 12 DR. ORLOB: No, I can't. I don't have any specific 13 -- I think that information is available in records, but I 14 don't have those stated. 15 MR. O'LAUGHLIN: Are you aware that the districts on 16 the west side of the valley do pump groundwater to 17 supplement their supplies? 18 DR. ORLOB: Yes, I'm aware of that. 19 MR. O'LAUGHLIN: Are you aware of that on the east 20 side as well? 21 DR. ORLOB: Yes, I am. 22 MR. O'LAUGHLIN: Have you done any quantification in 23 regards to the amount of groundwater being pumped by either 24 Oakdale, Modesto, TID, SSJID, or Merced? 25 DR. ORLOB: With regard to the specifics of each of CAPITOL REPORTERS (916) 923-5447 8920 1 those I would say I haven't, but I have looked at the 2 record of groundwater pumpage for the so-called depletion 3 study areas that the Department of Water Resources has 4 defined for both the west and east side of the valley. 5 MR. O'LAUGHLIN: One of the things that I was looking 6 at on this chart, it appears that on the east side of the 7 valley the EC's range from 250 to 1,000 -- 8 DR. ORLOB: Excuse me, what are you referring to? 9 MR. O'LAUGHLIN: I'm referring to Exhibit Number 6. 10 DR. ORLOB: Exhibit Number 6? 11 MR. O'LAUGHLIN: Yeah. Referring to the EC's on the 12 east side. 13 DR. ORLOB: Yes. 14 MR. O'LAUGHLIN: Now, one of the things that confuses 15 me is in the front of your paper on your opening statement 16 you're opposed to Stockton East getting water, but then I 17 look over here and we've got Exhibits Number 5 and 6, we've 18 got all these wells that are on the east side in and around 19 Stockton pumping groundwater that appears to have a fairly 20 bad, or higher EC than the surface water, between 500 and 21 400. Why would we want to do that? 22 MR. HERRICK: I would just object to that as 23 misstating the testimony. I believe Dr. Orlob said a sale 24 to Stockton East should take into consideration downstream 25 effects, not that he or South Delta was opposed to such a CAPITOL REPORTERS (916) 923-5447 8921 1 transfer. 2 MR. O'LAUGHLIN: Okay. Why do we not -- why is it 3 that we don't want to try to get the water to Stockton East 4 if we have all these groundwater wells there and they're 5 pumping this fairly poor groundwater? 6 DR. ORLOB: Excuse me. I'm not sure exactly what 7 area you're referring to that is -- 8 MR. O'LAUGHLIN: That is Stockton East -- 9 DR. ORLOB: Poor groundwater? 10 MR. O'LAUGHLIN: Yeah, 500 EC. 11 DR. ORLOB: 500 EC is not bad groundwater. That's 12 rather good groundwater actually. 13 MR. O'LAUGHLIN: Okay. So that's okay for them to 14 pump all that groundwater? 15 DR. ORLOB: I wouldn't say "all that groundwater." 16 They can supplement their surface water supply when they 17 need to with groundwater, which they apparently have done. 18 MR. O'LAUGHLIN: Well, if they have a cone of 19 depression, how are they going to supplement it if the 20 groundwater table keeps falling? 21 DR. ORLOB: Well, that's not necessarily a conclusion 22 that when they pump the groundwater table keeps falling. 23 They pump when they need water. Those groundwaters are 24 recharged naturally from the higher mountain areas. 25 MR. O'LAUGHLIN: Do you know if there is a CAPITOL REPORTERS (916) 923-5447 8922 1 groundwater overdraft in Eastern San Joaquin County? 2 DR. ORLOB: There has been evidence of there being a 3 groundwater overdraft in and around Stockton. 4 MR. O'LAUGHLIN: On -- I don't know what page it is, 5 it's Item Number 6 from your exhibit, 6 (Reading): 7 "Burden of controlling water quality at Vernalis 8 has been shifted downstream to the New Melones 9 Project which in dry or critically dry years may 10 not be able to release sufficient high quality 11 water from storage to reduce self-concentrations 12 at Vernalis to required levels." 13 DR. ORLOB: Yes. 14 MR. O'LAUGHLIN: Okay. Would you agree that New 15 Melones Project during the drought of 1986 through 1992 16 from the April to September period released more water than 17 would have been there without the project? 18 DR. ORLOB: I'm not sure whether it would have 19 released more than would have been there without the 20 project. It did release significant amounts of water. 21 MR. O'LAUGHLIN: April through September, though. 22 DR. ORLOB: As far as I'm aware that's a correct 23 statement. I don't have the monthly pattern of releases. 24 MR. O'LAUGHLIN: I'd like you to took at Figure 25 Number 8 if you could, please. CAPITOL REPORTERS (916) 923-5447 8923 1 DR. ORLOB: Yes. 2 MR. O'LAUGHLIN: I asked Mr. Hildebrand previously if 3 looking at the -- if it was his understanding that salinity 4 was getting better or worst at Vernalis, can you tell me 5 looking at this chart if the direction of the trend is in 6 lower EC's or higher EC's at Vernalis? 7 DR. ORLOB: In this particular period of about six 8 years or so, the total dissolved solids, which is measure 9 proportional to electrical conductivity, varied from year 10 to year and declined gradually over the first four years or 11 so, then dropped in '92, I think -- excuse me, I'm not 12 sure. Near the end of this period during a heavy runoff 13 period, '94, I guess it was. And then climbed back up 14 again. 15 MR. O'LAUGHLIN: But the overall trend in looking at 16 the chart the higher the highs -- the higher highs are 17 somewhat lower later in the period than they are in the 18 beginning? 19 DR. ORLOB: That's correct, in this period. 20 MR. O'LAUGHLIN: And the lower parts are lower later 21 in the period than they are in the beginning? 22 DR. ORLOB: That is right. 23 MR. O'LAUGHLIN: On the next page, Page Number 7, you 24 address what you've stated in the beginning of your report 25 about the temporary effects of moving water around from one CAPITOL REPORTERS (916) 923-5447 8924 1 time period to another. You see those? 2 C.O. STUBCHAER: It's really paragraph seven, not 3 page. 4 MR. O'LAUGHLIN: Yes, paragraph seven. Thank you 5 very much. 6 DR. ORLOB: Right. 7 MR. O'LAUGHLIN: Am I to understand by this that your 8 opinion is water within the San Joaquin River basin should 9 not be used to make pulse flows, because it has an impact 10 on the agricultural users later in the summer? 11 DR. ORLOB: Well, in this case if it were -- if it 12 was moved from a period that would normally be critical 13 from a point of view of water quality downstream, let's say 14 of the Stanislaus and the San Joaquin River, if it was 15 moved to another point in time when that summer period 16 might be critical, then, of course, it could be adverse to 17 the maintenance of adequate water quality during the 18 summertime period, which would be critical from the point 19 of view of agriculture. 20 MR. O'LAUGHLIN: Okay. Have you reviewed flow 21 alternative -- I mean alternative number two of the State 22 Water Resources Control Board Draft EIR to see what the end 23 of month storage is for New Melones based on that 24 alternative? 25 DR. ORLOB: No, I haven't reviewed it. I don't CAPITOL REPORTERS (916) 923-5447 8925 1 recall it specifically. 2 MR. O'LAUGHLIN: In this paragraph are you asserting 3 anything in regards to the San Joaquin River Agreement 4 making water available during the pulse flow and how that 5 would impact South Delta Water Agency? 6 DR. ORLOB: Only indirectly. I think that I would 7 like to say that I think that pulse flows are in themselves 8 valuable operational conditions. But they're not 9 necessarily -- if they're at the expense of water needed at 10 other -- water of adequate quality needed at other times, 11 then, of course, one has to either modify the operation of 12 the project, or find some way to cope with that depletion 13 that would occur in critical times of irrigation. 14 MR. O'LAUGHLIN: It says here on the last sentence of 15 that first paragraph under item number seven, 16 (Reading): 17 "Moreover, such allocations have the potential 18 to preclude adequate water quality control 19 releases later in the irrigation season in 20 situations where releases from storage are 21 limited." 22 Do you see that? 23 DR. ORLOB: Yes, I do. 24 MR. O'LAUGHLIN: Okay. So if water is held back 25 under the recirculation plan then we need an order from the CAPITOL REPORTERS (916) 923-5447 8926 1 Board to say that it has to be released later in the summer 2 to meet water quality needs, don't we? 3 DR. ORLOB: I think there has to be a provision if 4 water is to be reallocated in time within the basin to 5 provide for those periods when the quantity and quality of 6 the flows are critical during the agricultural season. 7 MR. O'LAUGHLIN: Okay. The next paragraph, now, when 8 you did South Delta -- you want to put exhibit -- 9 Mr. Herrick, can you please put Exhibit Number 9 up, 10 please? 11 South Delta Water Agency Exhibit Number 9, was 12 that prepared by you, Mr. Orlob -- Dr. Orlob? 13 DR. ORLOB: Yes, it was. 14 MR. O'LAUGHLIN: Now, you didn't do the preparation 15 of this exhibit for the Bay-Delta hearings, did you? 16 DR. ORLOB: No. 17 MR. O'LAUGHLIN: This was in regards to a proposed 18 transfer; is that correct? 19 DR. ORLOB: That's right. 20 MR. O'LAUGHLIN: And that's the proposed transfer 21 from whom to whom? 22 DR. ORLOB: My understanding was it was to be 23 transferred from -- by the Bureau of Reclamation from New 24 Melones to out-of-basin users. 25 MR. O'LAUGHLIN: Okay. So this chart doesn't reflect CAPITOL REPORTERS (916) 923-5447 8927 1 anything about the San Joaquin River Agreement then; is 2 that correct? 3 DR. ORLOB: Not specifically. It's intended to be 4 illustrative. 5 MR. O'LAUGHLIN: What is it illustrative of in your 6 opinion? 7 DR. ORLOB: Of the consequence to water quality 8 within the flow of the Stanislaus during a period in which 9 water up to an amount of 50,000 acre-feet per year might be 10 reallocated outside the basin. 11 MR. O'LAUGHLIN: Now, in fact, the transfer that you 12 did this on wasn't between the Bureau and Stockton East, it 13 was between Oakdale and the South San Joaquin Irrigation 14 District and Stockton East; is that correct? 15 DR. ORLOB: I presumed that the water would be taken 16 from the diversions that would otherwise be allocated to 17 the Stockton East -- not Stockton East, but South San 18 Joaquin Water District and the Oakland Irrigation District. 19 C.O. BROWN: Oakdale? 20 DR. ORLOB: Yeah, Oakdale. I'm sorry. 21 MR. O'LAUGHLIN: That's okay. And when you did this 22 chart you took the 50,000 allocation and shoved it all into 23 the summer months; is that correct? 24 DR. ORLOB: I distributed it in the summer months 25 during which irrigation diversions would normally be made CAPITOL REPORTERS (916) 923-5447 8928 1 to the irrigation districts and distributed a proportion to 2 the amounts used monthly in those districts. 3 MR. O'LAUGHLIN: Thank you. In fact, you didn't -- 4 the 50,000 acre-feet isn't correct, is it, Oakdale and 5 South San Joaquin are actually transferring 30,000 6 acre-feet to Stockton East; is that correct? 7 DR. ORLOB: I understand they're negotiating an 8 agreement whereby they may, in certain years, divert 30,000 9 depending on the storage in New Melones. 10 MR. O'LAUGHLIN: In fact, when you did this exhibit 11 you were contacted by Oakdale and South San Joaquin with 12 corrections to this exhibit; is that correct? 13 DR. ORLOB: Not specifically that I know of. I 14 didn't have any contact with them. 15 MR. O'LAUGHLIN: Did you do any follow-up work to 16 accurately depict the transfer that would take place 17 between Stockton East and Oakdale and South San Joaquin 18 Irrigation District other than this Figure Number 9? 19 DR. ORLOB: Yes. I reexamined a proposed program of 20 diversion that was an alternative to this, the one that I 21 used in this example. And that one involved allocating 22 30,000 acre-feet in years in which the storage of the New 23 Melones was above the critical level -- 24 MR. O'LAUGHLIN: Okay. 25 DR. ORLOB: -- or a certain level. CAPITOL REPORTERS (916) 923-5447 8929 1 MR. O'LAUGHLIN: And, in fact, you were given a 2 distribution pattern for when that water would be made 3 available; is that correct? 4 DR. ORLOB: In accordance with the storage in New 5 Melones, yes. 6 MR. O'LAUGHLIN: And in compliance with when Stockton 7 East wanted to take deliveries, in what months; is that 8 correct? 9 DR. ORLOB: I don't recall the details insofar as 10 month by month patterns are concerned, but that is 11 reasonable. 12 MR. O'LAUGHLIN: In this chart, Figure Number 9 13 assumes that even if the Bureau, or Oakdale, or South San 14 Joaquin makes water available outside the basin, that the 15 New Melones will not try to meet water quality at Vernalis; 16 is that correct? 17 DR. ORLOB: I didn't assume that New Melones would in 18 this case. New Melones, in order to meet the quality at 19 Vernalis, would have to release additional water out of 20 storage since this is water that was not otherwise 21 allocated to the irrigation districts by New Melones. 22 MR. O'LAUGHLIN: And on Figure Number 9 you assumed a 23 consumptive use rate of one-to-one in regards to the water 24 that was being transferred; is that correct? 25 DR. ORLOB: In effect I did that, yes. CAPITOL REPORTERS (916) 923-5447 8930 1 MR. O'LAUGHLIN: And that's not realistic, is it? 2 DR. ORLOB: Well, consumptive uses varies up to about 3 80 percent depending on irrigation efficiency and the 4 residual -- the tailwater goes back to the river. 5 MR. O'LAUGHLIN: Okay. Dr. Orlob -- 6 C.O. BROWN: Mr. Chairman? 7 C.O. STUBCHAER: Mr. Brown. 8 C.O. BROWN: Question on the last statement. You 9 commingled irrigation efficiency and consumptive use. 10 Consumptive use, does it change with irrigation efficiency 11 or does that remain the same with the applied water change? 12 DR. ORLOB: Well, consumptive use -- irrigation 13 efficiency is a determining factor in consumptive use. So 14 if one has an irrigation efficiency of 50 percent then 15 consumptive use is 50 percent. If the irrigation 16 efficiency is 20 percent, then 80 percent of the total 17 water delivery is used consumptively. 18 C.O. BROWN: Just a question, Mr. Chairman: But the 19 consumptive use of the plant doesn't change, right? 20 DR. ORLOB: No. 21 C.O. BROWN: Okay. 22 DR. ORLOB: Ordinarily, it doesn't. There's some 23 seasonal variations in some cases of some crops, but 24 ordinarily it's constant. 25 C.O. BROWN: I understand now. CAPITOL REPORTERS (916) 923-5447 8931 1 MR. O'LAUGHLIN: Well, in fact, when the 50,000 2 acre-feet was transferred, you assumed that the 50,000 3 acre-foot, if it remained within the Oakdale Irrigation 4 District and South San Joaquin Irrigation District, would 5 have shown up at Vernalis; is that correct? 6 DR. ORLOB: That's correct. 7 MR. O'LAUGHLIN: Okay. So if they'd actually applied 8 the 50,000 acre-feet to their crops and had a consumptive 9 use of about 80 percent you would have only seen 20 percent 10 of the 50,000 at Vernalis; is that correct? 11 DR. ORLOB: Of course, that's true on that basis. It 12 would be expected, however, if the consumptive -- total 13 consumptive use requirement of the crop within the 14 irrigated area hadn't changed, then a fixed amount of water 15 would be allocated to consumptive use. Anything applied in 16 excess of that which, of course, would reduce irrigation 17 efficiency would appear as runoff or tailwater. 18 MR. O'LAUGHLIN: And you used one to one in your -- 19 DR. ORLOB: For the preliminary analysis I used one 20 to one. 21 MR. O'LAUGHLIN: Okay. I put up on the Board Figure 22 Number 1. And if you can identify it, maybe I'll mark it 23 as an exhibit. Does this refresh your recollection as to 24 any subsequent work that you did in regards to that 25 transfer, Dr. Orlob? CAPITOL REPORTERS (916) 923-5447 8932 1 DR. ORLOB: Yes. This is a similar analysis based on 2 a proposed -- the modification in the original assumption 3 that 50,000 acre-feet would be transferred. In this 4 case -- and this was an interim proposal in which years of 5 sufficiency of storage in New Melones it would be possible 6 to transfer -- or it might be contracted to transfer 7 30,000 acre-feet. And in the cases when the storage in the 8 reservoirs are at lower levels there would be lesser 9 amounts transferable. 10 MR. O'LAUGHLIN: Is there any reason why you didn't 11 present this chart to the State Water Resources Control 12 Board as part of your testimony as opposed to the 50,000 13 acre-foot chart that really doesn't bear on anything that's 14 happening on the Stanislaus River? 15 DR. ORLOB: Well, the 50,000 acre-foot example was 16 based on initial discusses and my understanding of the 17 areas that were, let's say, the possibilities that were 18 being explored at the time. There's no reason why this 19 exhibit shouldn't also be included. It just wasn't for any 20 particular purpose withheld. 21 C.O. STUBCHAER: Mr. O'Laughlin. 22 MR. O'LAUGHLIN: Why don't I have it marked. 23 C.O. STUBCHAER: Could you identify which publication 24 this Figure 1 is from, I missed that? 25 MR. O'LAUGHLIN: I'll get it. First, let's mark it CAPITOL REPORTERS (916) 923-5447 8933 1 for San Joaquin River Group Authority Exhibit 31. 2 Mr. -- Dr. Orlob, I'm sorry, Dr. Orlob, I keep 3 doing that. I don't mean any disrespect by that. 4 Dr. Orlob has identify it as his work. 5 Can you tell us for whom you prepared this 6 document, San Joaquin River Group Authority Exhibit 31? 7 DR. ORLOB: I did it for the South Delta Water 8 Agency. It's reported in an internal memorandum. 9 MR. O'LAUGHLIN: Thank you. Let's get to the next 10 page of your analysis, it's the supplemental analysis that 11 you did. Do you see that? 12 DR. ORLOB: Yes, I do. 13 MR. O'LAUGHLIN: All right. Why don't -- in the 14 first sentence of that it says, 15 (Reading): 16 "As I understand the proposal outlined in the 17 testimony of Mr. Steiner, the Bureau could 18 purchase 15,000 acre-feet of water from Oakdale 19 Irrigation District that then could be credited 20 to OID's obligations under the San Joaquin River 21 Agreement/VAMP." 22 Do you see that? 23 DR. ORLOB: Yes, I do. 24 MR. O'LAUGHLIN: Okay. What do you mean by "credited 25 to OID's obligations under the San Joaquin River CAPITOL REPORTERS (916) 923-5447 8934 1 Agreement/VAMP"? 2 DR. ORLOB: Well, it was my understanding that this 3 water could be held in storage as a credit to Oakdale and 4 South San Joaquin in the event that they required that 5 quantity of water at a subsequent date. 6 MR. O'LAUGHLIN: Well, have you reviewed the San 7 Joaquin River Agreement? 8 DR. ORLOB: I did review it at the time, yes. 9 MR. O'LAUGHLIN: Did you review Mr. VanCamp's 10 testimony? 11 DR. ORLOB: I don't think so. 12 MR. O'LAUGHLIN: Okay. San Joaquin River Group 13 Exhibit Number 9, to refresh your recollection, it has 14 under the division agreement an explanation of the division 15 agreement that -- and I'll focus only on OID, that OID will 16 make up to a maximum of 11,000 acre-feet available for the 17 San Joaquin River Agreement. 18 Now, do you know where that water is going to come 19 from? 20 DR. ORLOB: I presume it would come out of their 21 entitlement to diversions from New Melones. 22 MR. O'LAUGHLIN: Okay. And how does it actually end 23 up at Vernalis? 24 DR. ORLOB: If OID was taking that water it would 25 come back to the river downstream. If not, it would pass CAPITOL REPORTERS (916) 923-5447 8935 1 through the river by the normal course from New Melones and 2 the facilities downstream of New Melones. 3 MR. O'LAUGHLIN: Would it be safe to say, Dr. Orlob, 4 that you don't know what amount of water OID is going to 5 make available under this agreement? 6 DR. ORLOB: No, I don't. 7 MR. O'LAUGHLIN: And you don't know where they're 8 going to make it available; is that correct? 9 DR. ORLOB: I didn't have information about that at 10 the time. 11 MR. O'LAUGHLIN: So what is there within this 12 testimony here that we should understand that if you don't 13 know the amounts of water being made available from OID, or 14 where the water is going to be made available from OID, or 15 how the water is going to be made available by OID that we 16 can use this testimony at all through your supplemental 17 analysis? 18 DR. ORLOB: Only to emphasize the need to examine the 19 effect of reallocating this water in time and space under 20 such agreements. I think that the effect is one of 21 considerable interest to the users both in the basin and 22 downstream. 23 MR. O'LAUGHLIN: Okay. But how do you do that if you 24 don't know where the water is going, how it's going, or 25 when it's going? CAPITOL REPORTERS (916) 923-5447 8936 1 DR. ORLOB: I agree with you that you should know 2 those amounts. I didn't intend that this be an example to 3 illustrate the kind of analysis that would have to be 4 performed. 5 MR. O'LAUGHLIN: Okay. So if I can rephrase that 6 then. What you mean by supplemental analysis for the Board 7 to take home is that if the San Joaquin River Agreement is 8 going to go forward these are some of the things that we 9 should look at? 10 DR. ORLOB: Exactly. 11 MR. O'LAUGHLIN: Okay. So other than that I can 12 disregard the rest of this testimony under "Supplemental 13 Analysis"? 14 DR. ORLOB: Well, if you wish. I guess that's your 15 prerogative. 16 MR. O'LAUGHLIN: Okay. Do you know if the 15,000 17 acre-feet of water that Oakdale is going to sell to the 18 Bureau under 8.5 of the San Joaquin River Agreement where 19 that water will be put? 20 DR. ORLOB: Not specifically, no. 21 MR. O'LAUGHLIN: Just a couple more questions, I'm 22 almost done, Dr. Orlob. Okay. On the bottom page there of 23 the supplemental analysis you have an analysis of, 24 (Reading): 25 "If the 15,000 acre-feet were retained by OID CAPITOL REPORTERS (916) 923-5447 8937 1 and used," and in that you come up with an 2 irrigation efficiency for Oakdale of 60 3 percent. 4 And then you say that, 5 (Reading): 6 "40 percent of the water, i.e., 6,000 acre-feet 7 would become drainage flow. Thus, the 8 inescapable conclusion for this alternative 9 would be that removing 15,000 acre-feet from OID 10 diversions and allocating it elsewhere would be 11 detrimental to water quality in the San Joaquin 12 River below Vernalis." 13 Do you see that? 14 DR. ORLOB: Yes. 15 MR. O'LAUGHLIN: Okay. Are you assuming by that 16 analysis that all of that water would appear at Vernalis in 17 one month? 18 DR. ORLOB: Not necessarily in one month. I mean it 19 certainly depends upon how it was allocated in accordance 20 within the agreement. 21 MR. O'LAUGHLIN: Well, I wonder if the 15,000 22 acre-feet in -- historically had been used in Oakdale 23 Irrigation District from the time period from March 1st 24 through October 1st. 25 DR. ORLOB: Right. CAPITOL REPORTERS (916) 923-5447 8938 1 MR. O'LAUGHLIN: The normal irrigation season? 2 DR. ORLOB: That's correct. 3 MR. O'LAUGHLIN: Okay. So we could take those months 4 and divide it into the 15,000 acre-feet? 5 DR. ORLOB: That could be possible. 6 MR. O'LAUGHLIN: Okay. Well, what I'm getting at 7 though is you seem to put it all in one month where 6,000 8 acre-feet is not returning to the river, but that's 9 assuming that all 15,000 acre-feet would have been used in 10 that month and the return flow would have occurred in that 11 month; is that correct? 12 DR. ORLOB: Well, I wouldn't assume that it would 13 occur in one month, or would be allocated in one month. It 14 could be distributed in accordance with need. 15 MR. O'LAUGHLIN: Okay. Well, let's take 7,000 16 acre-feet and divide it by 8 months of irrigation. What 17 number do you come up with as far as acre-feet? 18 DR. ORLOB: 7,000 acre-feet divided by -- 19 MR. O'LAUGHLIN: No. 6,000. 20 DR. ORLOB: 6,000. 21 MR. O'LAUGHLIN: Divided by 8. 22 DR. ORLOB: Okay. That's about 750 acre-feet. 23 MR. O'LAUGHLIN: 750 acre-feet per month? 24 DR. ORLOB: Right. 25 MR. O'LAUGHLIN: Okay. Now, if we wanted to we could CAPITOL REPORTERS (916) 923-5447 8939 1 divide that by 30 days, correct? 2 DR. ORLOB: Right. 3 MR. O'LAUGHLIN: Okay. So where does that get us? 4 DR. ORLOB: About -- 5 MR. O'LAUGHLIN: About 25 csf? 6 C.O. BROWN: 25 acre-feet. 7 MR. O'LAUGHLIN: 25 acre-feet sound about right? 8 DR. ORLOB: Yes. 9 MR. O'LAUGHLIN: Okay. Then we get down to csf. So 10 now if we have 25 acre-feet in a day, how many csf do we 11 have in a day? 12 DR. ORLOB: That's about 50. 13 MR. O'LAUGHLIN: 50 csf -- 14 DR. ORLOB: Excuse me. Divided by -- 15 THE COURT REPORTER: We're getting both of you at the 16 same time. 17 DR. ORLOB: I'm sorry. We're down to -- 18 MR. O'LAUGHLIN: 25 acre-feet a day. 19 DR. ORLOB: 25 acre-feet a day. 20 MR. O'LAUGHLIN: And I want to know the csf. 21 DR. ORLOB: It's half of that. 22 MR. O'LAUGHLIN: Half of that. So let's call it 13 23 csf. 24 DR. ORLOB: Something like that. 25 MR. O'LAUGHLIN: Okay. Now, tell me, what's the CAPITOL REPORTERS (916) 923-5447 8940 1 unimpaired flow in the San Joaquin River at Vernalis in 2 May? 3 DR. ORLOB: The unimpaired flow? 4 MR. O'LAUGHLIN: Yeah, the unimpaired flow. 5 DR. ORLOB: Well, I really don't have a good idea of 6 what the unimpaired flow is at Vernalis. Actually, that's 7 a figure that represents the entire undeveloped 8 contribution upstream of Vernalis. So I don't know what 9 the number is. 10 MR. O'LAUGHLIN: Okay. Well, let me rephrase it 11 another way. 12 DR. ORLOB: Okay. 13 MR. O'LAUGHLIN: Based on historic hydrologic 14 conditions over the last ten years, what is the average 15 flow at Vernalis in the month of May? 16 DR. ORLOB: Well, I would guess it would be on the 17 order of may be a few hundred second feet. I'm not sure. 18 MR. O'LAUGHLIN: So you're thinking there's about 200 19 csf that shows up on average at Vernalis over the last 10 20 years in the month of May? 21 DR. ORLOB: No. The actual flow at Vernalis -- 22 MR. O'LAUGHLIN: Yeah. The actual flow at Vernalis 23 in the month of May for the last ten years on average. 24 DR. ORLOB: I suspect it would be on the order of 25 between 500 and 700 cubic feet per second. CAPITOL REPORTERS (916) 923-5447 8941 1 MR. O'LAUGHLIN: Okay. So if we looked at the impact 2 of making this water available, this 15,000 acre-feet, it 3 would be 13 csf over your 500 to 700 csf? 4 DR. ORLOB: It would. 5 MR. O'LAUGHLIN: And then if I went and found the 6 actual numbers for what the Vernalis flow was for the last 7 10 years and I told you that number was more in the 8 magnitude of 3 or 4,000 csf, what effect does 13 csf have 9 at Vernalis, Dr. Orlob? 10 DR. ORLOB: Not very much. It does have an effect 11 though, it's a positive effect. 12 MR. O'LAUGHLIN: Thank you. I have no further 13 questions for Dr. Orlob. 14 C.O. STUBCHAER: Thank you, Mr. O'Laughlin. We'll 15 now proceed with the redirect of Dr. Orlob. 16 MR. O'LAUGHLIN: Just a second, I'll get all my 17 stuff. 18 MR. HERRICK: That's all right. 19 MEMBER DEL PIERO: How are you, Mr. Herrick? At 20 ease. 21 MR. HERRICK: I'll just do it from here, because I 22 believe I'll use a couple of overheads, if I may. 23 C.O. STUBCHAER: Excuse me. If you can't hear in the 24 back, please, raise your hand or get my attention and we'll 25 ask that the microphone be used. CAPITOL REPORTERS (916) 923-5447 8942 1 ---oOo--- 2 REDIRECT EXAMINATION OF SOUTH DELTA WATER AGENCY 3 OF DR. GERALD ORLOB 4 BY JOHN HERRICK 5 MR. HERRICK: I'll strap on my announcer voice. 6 MR. NOMELLINI: It's all right as long as he's 7 pointed in this direction. 8 C.O. STUBCHAER: All right. Proceed. 9 MR. HERRICK: Dr. Orlob, there were some questions 10 from Mr. Sexton regarding the possible contribution of salt 11 or salt load to the South Delta Water Agency. Do you 12 remember those questions, generally? 13 DR. ORLOB: I do. 14 MR. HERRICK: In your opinion do the South Delta 15 Water Agency dischargers and diverters add any appreciable 16 salt load to the channels of the South Delta? 17 DR. ORLOB: Not other than the salt load that is 18 associated with the diversions made from the channels to 19 irrigate their lands. 20 MR. HERRICK: Dr. Orlob, would you agree that it is 21 possible that some sort of application of things on fields 22 may have some effect on the salt going back in the river? 23 DR. ORLOB: If you put salt on those fields, of 24 course it would, but we're only putting water at the 25 quality that's found in the channels adjacent to the CAPITOL REPORTERS (916) 923-5447 8943 1 fields. 2 MR. HERRICK: But -- I'm sorry. Any potential 3 additional salt load, in your opinion, would that be 4 minimal? 5 DR. ORLOB: I think it would be in a well-established 6 irrigation system represented in the South Delta Water 7 Agency. 8 MR. HERRICK: Mr. Sexton also asked you questions 9 about the ag practices of diverters upstream which included 10 decreases -- increases in pumping, groundwater pumping; 11 reuse of tailwater, things like that. Do you recall those 12 questions, generally? 13 DR. ORLOB: Generally, yes. 14 MR. HERRICK: And, again, I'm asking you for general 15 statements not necessarily the specific, but would you 16 agree that it is possible in some instances that a decrease 17 in load, salt load entering the river might have a 18 corresponding concentration increase at the time that the 19 decreases -- excuse me, at the time the discharges occur? 20 DR. ORLOB: Decreasing the load return to the river? 21 MR. HERRICK: If the load is decreased, is it 22 possible to have a corresponding increase in concentration? 23 DR. ORLOB: Well, it depends on how much -- how much 24 water is returned from the time that you readmit those 25 salts to the system. CAPITOL REPORTERS (916) 923-5447 8944 1 MR. HERRICK: And if you were trying to, then, 2 evaluate the impacts on the San Joaquin River you would 3 have to examine just what concentration was going into the 4 river; is that correct? 5 DR. ORLOB: You would have to have information on the 6 concentration and the rate of flow and the corresponding 7 values for the river itself. 8 MR. HERRICK: And if you were just looking at a 9 decrease in load, would you believe that would give you 10 enough information to evaluate the effects on the San 11 Joaquin River? 12 DR. ORLOB: I don't think so. I think you have to 13 have additional information. 14 MR. HERRICK: And, of course, the information you 15 need to evaluate that. Those would be those very issues we 16 had in our first question which was: Amount of groundwater 17 pumping, reuse of tailwater, control of drainage, those 18 sort of things would need to be looked at? 19 DR. ORLOB: That's right. 20 MR. HERRICK: Dr. Orlob, was it the purpose of your 21 testimony here today in South Delta Exhibit 34-A to raise 22 the issues associated with the impacts resulting from 23 transfers or shifts of flows? 24 DR. ORLOB: Shifts -- well, reallocation of the 25 water resources within the basin to other locations and to CAPITOL REPORTERS (916) 923-5447 8945 1 other points in time. 2 MR. HERRICK: And, Dr. Orlob, you understand the 3 purpose of these proceedings is to determine how the '95 4 Water Quality Control Plan might be implemented? 5 DR. ORLOB: That's correct. 6 MR. HERRICK: And do you recall that the '95 Water 7 Quality Control Plan instituted new objectives that have to 8 do with fisheries? 9 DR. ORLOB: Yes, I do. 10 MR. HERRICK: And is it your understanding that those 11 new objectives now include specific flows to be measured at 12 Vernalis? 13 DR. ORLOB: That's correct. 14 MR. HERRICK: And is it also your understanding that 15 the agricultural objectives in the Water Quality Control 16 Plan remain as before, which is a standard that deals with 17 a salinity measured at Vernalis? 18 DR. ORLOB: That's correct. 19 MR. HERRICK: Again, I don't mean to misled you. 20 There's been a slight change of the 500 TDS to .7 or 1.0 21 EC. 22 DR. ORLOB: It's about 480 milligrams per liter. 23 MR. HERRICK: Now, in your opinion, Dr. Orlob, if you 24 institute measures which provide flows for Fish and 25 Wildlife purposes, does that have an effect on the ability CAPITOL REPORTERS (916) 923-5447 8946 1 to meet the water quality objectives? 2 DR. ORLOB: Depends on when those flows are allocated 3 and what the condition of the river is at the time they're 4 allocated. 5 MR. HERRICK: And, indeed, isn't that the purpose of 6 your testimony to set forth the issues that are involved in 7 that calculation which include the reallocation of flows 8 which at one time may impact the ability to meet an 9 objective at another time? 10 DR. ORLOB: That is correct. 11 MR. HERRICK: On Exhibit Number -- excuse me, on 12 South Delta Number 8, I'll get out of way here in just a 13 second, one of the questions by Mr. Orlob suggested that 14 there is a trend evidenced by this figure. Do you recall 15 that? 16 DR. ORLOB: Excuse me, you mean by Mr. O'Laughlin? 17 MR. HERRICK: Yes. I'm sorry. 18 DR. ORLOB: I don't ask the questions, huh? 19 MEMBER DEL PIERO: They all look alike. 20 DR. ORLOB: Yes, I recall that. 21 MR. HERRICK: Now, you would agree that this graph 22 starts in October of '89 and goes through April of '97; is 23 that correct? 24 DR. ORLOB: That's correct. 25 MR. HERRICK: And the first few years of that graph CAPITOL REPORTERS (916) 923-5447 8947 1 include the time period of the worst drought on history; is 2 that correct? 3 DR. ORLOB: I'm not sure it was the worst, but it 4 certainly was one of the closest to the worst. 5 MR. HERRICK: And in the last few years we've had a 6 number of wet years in a row, correct? 7 DR. ORLOB: That's correct. 8 MR. HERRICK: Now, in light of the fact that we've 9 have wet years after a drought, would you expect that any 10 sort of mean or average or trend that one might draw from 11 this chart would show a decrease overall of the TDS at 12 Vernalis? 13 DR. ORLOB: I don't think it's a representative 14 sample, necessarily, of the record but it has actually been 15 experienced. It's interesting because it does show the 16 relationship between TDS and flow and the salt load, but 17 otherwise I think it's only illustrative and it should not 18 be over-interpreted. 19 MR. HERRICK: That's my next question: Do you 20 believe this indicates any sort of trend other than this 21 eight-year period? 22 DR. ORLOB: It's an interesting experience, but it's 23 not altogether conclusive without a longer record. 24 MR. HERRICK: Dr. Orlob, I now have South Delta 25 Number 2, which is taken from your testimony. Do you CAPITOL REPORTERS (916) 923-5447 8948 1 recognize that? 2 DR. ORLOB: Yes, I do. 3 MR. HERRICK: And I believe one of the questions 4 asked of you by Mr. O'Laughlin asked whether or not -- or 5 why the flows used -- excuse me, the amounts of water used 6 by the South Delta Water Agency are not included on this. 7 Do you recall that? 8 DR. ORLOB: Yes, I do. 9 MR. HERRICK: Dr. Orlob, is it your understanding 10 that the requirements of flow in the San Joaquin River 11 contained in the 1995 Water Quality Control Plan are 12 measured at Vernalis? Is that correct? 13 DR. ORLOB: That's my understanding. 14 MR. HERRICK: And they don't take into consideration 15 downstream of Vernalis with regard to the San Joaquin River 16 flow? 17 DR. ORLOB: Not explicitly. 18 MR. HERRICK: Dr. Orlob, I'm now putting up South 19 Delta Number 9, which is also part of your testimony. Do 20 you recognize that? 21 DR. ORLOB: Yes, I do. 22 MR. HERRICK: And Mr. O'Laughlin showed you a similar 23 but different graph indicating the results if you used 24 changed assumptions with regard to a transfer. 25 DR. ORLOB: That's correct. CAPITOL REPORTERS (916) 923-5447 8949 1 MR. HERRICK: Was it your purpose in presenting this 2 graph to specifically predict what will happen under any 3 certain circumstance? 4 DR. ORLOB: Well, of course, this represents a set of 5 assumptions concerning the amounts of water diverted, when 6 they're diverted and how they're reallocated back to the 7 Stanislaus River and they affect the quality at Vernalis in 8 the San Joaquin River. 9 MR. HERRICK: Dr. Orlob, is it your understanding 10 that there currently are proposals for transfers of water 11 on the tributaries of the San Joaquin River? 12 DR. ORLOB: I understand there are some negotiations 13 underway to make such transfers. 14 MR. HERRICK: And are you familiar with whether or 15 not the San Joaquin River Agreement describes the potential 16 of purchases on those tributaries by the U.S. Bureau of 17 Reclamation? 18 DR. ORLOB: I understand that they do. 19 MR. HERRICK: And are you generally aware that the 20 CVPIA legislation allows for other purchases of water on 21 the tributaries of the San Joaquin River system? 22 DR. ORLOB: I understand that. 23 MR. HERRICK: And, Dr. Orlob, is it your testimony 24 that South Delta Number 9 is illustrative of the effects of 25 a transfer of 50,000 acre-feet? CAPITOL REPORTERS (916) 923-5447 8950 1 DR. ORLOB: That's what it's intended to be, 2 illustrative. 3 MR. HERRICK: And, Dr. Orlob, is it your opinion that 4 the State Board, in determining a method it might use to 5 adopt -- to implement the 1995 Water Quality Control Plan, 6 it should take into consideration purchases such as the one 7 illustrated by this figure? 8 DR. ORLOB: Yes, I would hope that they would take 9 into consideration some of the consequences that might 10 result from such transfers. 11 MR. HERRICK: And, Dr. Orlob, generally speaking 12 transfers on other tributaries to the San Joaquin River may 13 have a -- also may have an effect on the ability to meet 14 downstream standards? 15 DR. ORLOB: They may have if they are significant in 16 quantity and occur at the appropriate times. 17 MR. HERRICK: And, Dr. Orlob, if the State Board 18 implements a method -- excuse me, adopts a method of 19 implementing the 1995 Water Quality Control Plan, would you 20 assume that their modeling that supports that decision will 21 be based on assumptions of existing flow at various times? 22 DR. ORLOB: I would expect that it would be based on 23 some assumptions about, let's say, hypothetical flows that 24 would exist at times of major primary concern for water 25 quality. I don't think we can presume that it would apply CAPITOL REPORTERS (916) 923-5447 8951 1 to any particular set of conditions. 2 MR. HERRICK: Dr. Orlob, would you expect that any 3 transfer of water on tributaries to the San Joaquin River 4 system may have an effect on the amount of water available 5 at Vernalis for dilution of salts? 6 DR. ORLOB: Yes, I would to the extent that it 7 involves consumptive use of water. 8 MR. HERRICK: And, of course, even if that decrease 9 is just a few csf that could be important in times when the 10 Vernalis standard is at risk, could it not? 11 DR. ORLOB: I believe so. 12 MR. HERRICK: Dr. Orlob, do you recall the final line 13 of questioning that Mr. O'Laughlin presented to you 14 regarding the supplemental analysis of your testimony? 15 DR. ORLOB: I do. 16 MR. HERRICK: And in that testimony you evaluated the 17 potential impact of the reallocation of 15,000 acre-feet of 18 water that previously was allocated to OID; is that 19 correct? 20 DR. ORLOB: That's correct. 21 MR. HERRICK: And the assumptions you used in your 22 analysis here, were those the same assumptions you took 23 from the testimony of Mr. Steiner when you reviewed that? 24 DR. ORLOB: To the best of my ability, yes. 25 MR. HERRICK: Now, Dr. Orlob, of course, the CAPITOL REPORTERS (916) 923-5447 8952 1 reallocation of 15,000 acre-feet according to your analysis 2 shows that potentially you're trading a return flow of 3 6,000 acre-feet for an increased allocation in future years 4 of approximately 600 acre-feet -- excuse me, approximately 5 -- well, let me throw it on to your back. Sorry. 6 DR. ORLOB: We were retaining 15,000 acre-feet in New 7 Melones storage for redistribution. And the result of that 8 may be that there would be -- if it was allocated to 9 irrigation usage with an appropriate irrigation efficiency 10 there would be a smaller number that would actually result 11 as tailwater and be delivered to the system. Something 12 like 600 -- or 6,000 acre-feet. 13 MR. HERRICK: And that was based on the budgeting of 14 water in New Melones pursuant to the Interim Operations 15 Plan; is that correct? 16 DR. ORLOB: I believe so. 17 MR. HERRICK: And is it the purpose of your analysis, 18 then, to point out that regardless of the month that the 19 newly budgeted water quality water is released, the overall 20 effect is the decrease of approximately 6,000 acre-feet in 21 the system; is that correct? 22 DR. ORLOB: That would be appropriate. 23 MR. HERRICK: Of course, it is possible to manipulate 24 the release of a small amount of additional allocation so 25 as to minimize effects due to that transfer; is that true? CAPITOL REPORTERS (916) 923-5447 8953 1 DR. ORLOB: Depending on when that water is made 2 available to the system it would then affect the quality 3 downstream. 4 MR. HERRICK: And, of course, if we take a 5 hypothetical, the worst case scenario, in drought years 6 that would be much more difficult to accomplish; wouldn't 7 it? 8 DR. ORLOB: I believe so. 9 MR. HERRICK: That is all the redirect that I have of 10 Dr. Orlob. 11 C.O. STUBCHAER: Thank you, Mr. Herrick. Who wishes 12 to recross Dr. Orlob on the redirect testimony that he just 13 gave? Mr. O'Laughlin. Anyone else besides possible staff 14 and Board? Seeing none, we'll now take our afternoon 15 break, 12-minute break. 16 (Recess taken from 2:20 p.m. to 2:32 p.m.) 17 C.O. STUBCHAER: We'll reconvene. And before you 18 start your recross-examination, I want to make an 19 announcement that Mr. Del Piero and others have correctly 20 pointed out to me that I did not allow the staff and Board 21 to cross-examine Dr. Orlob before the redirect. So when it 22 gets to the staff and Board they may ask questions on the 23 total scope of Dr. Orlob's testimony. 24 MEMBER DEL PIERO: Mr. Brown, you still dock him a 25 day's pay. CAPITOL REPORTERS (916) 923-5447 8954 1 C.O. STUBCHAER: Mr. O'Laughlin, please, proceed with 2 your recross-examination. 3 ---oOo--- 4 RECROSS-EXAMINATION OF SOUTH DELTA WATER AGENCY 5 BY SAN JOAQUIN RIVER GROUP AUTHORITY 6 BY TIM O'LAUGHLIN 7 MR. O'LAUGHLIN: I'm going to focus in on -- not 8 specifically on Exhibit Number 9, but the redirect that was 9 done in regards to your supplemental analysis. 10 What is your understanding of how this 15,000 11 acre-feet of water is going to leave the basin? 12 DR. ORLOB: Well, I suppose that it would be 13 available as water to be contracted for by extra basin 14 users such as Stockton East, for example, perhaps. I'm not 15 sure who they would be, but the water would be available 16 for that purpose. 17 MR. O'LAUGHLIN: So you're using the assumption that 18 the 15,000 acre-feet that OID would make available to the 19 United States Bureau of Reclamation would then, in fact, go 20 to Stockton East Water District; is that correct? 21 DR. ORLOB: Or some similar extra basin user. 22 MR. O'LAUGHLIN: Okay. What other extra basin user 23 are you aware of that the Bureau would make that water 24 available to? 25 DR. ORLOB: I'm not aware of any, other than the one CAPITOL REPORTERS (916) 923-5447 8955 1 that I mentioned. There may be others. I don't know who's 2 been discussing this with the Bureau. 3 MR. O'LAUGHLIN: Well, let's look at South Delta 4 Exhibit Number 50. Do you have that in front of you, 5 Dr. Orlob? 6 DR. ORLOB: No, I don't think so. 7 MR. HERRICK: Which is 50? 8 MR. O'LAUGHLIN: That's the analysis of adding a 9 15,000 acre-foot purchase from OID into New Melones 10 storage. 11 MR. HERRICK: Give me a second and I'll find it. 12 MR. O'LAUGHLIN: Sure. 13 Dr. Orlob, while Mr. Herrick is looking for that 14 exhibit why don't I move on. Are you aware of the fact 15 that OID will make 11,000 acre-feet available to meet the 16 Vernalis Adaptive Management Plan flows at Vernalis? 17 DR. ORLOB: I'm not specifically familiar with that 18 agreement. 19 MR. O'LAUGHLIN: Okay. If that water was being made 20 available at Vernalis, would you have any objection to 21 that? 22 DR. ORLOB: If it was being made available through -- 23 MR. O'LAUGHLIN: At Vernalis. 24 DR. ORLOB: No, I wouldn't. 25 MR. O'LAUGHLIN: Okay. CAPITOL REPORTERS (916) 923-5447 8956 1 DR. ORLOB: It depends, of course, on when it would 2 be allocated. 3 MR. O'LAUGHLIN: The April/May pulse flow period. 4 DR. ORLOB: Well, that probably would be beneficial 5 from the point of view of fish. And I suppose that that 6 may be a reason why they might allocate it. If it were -- 7 were a matter of putting that water where it would do the 8 most good from the point of view of water quality it would 9 be better to have that in the low flow periods, in the 10 summer months. 11 MR. O'LAUGHLIN: Is South Delta Water Agency willing 12 to pay any of the tributaries to make water quality 13 available in the later summer months? 14 DR. ORLOB: I can't answer that. I don't know. 15 MR. O'LAUGHLIN: Has South Delta Water Agency ever 16 had discussions with anyone on either the Merced, the 17 Tuolumne, or the Stanislaus River about purchasing water 18 for water quality in the summer months? 19 DR. ORLOB: As far as I know, I have no knowledge of 20 that. 21 MR. O'LAUGHLIN: Would that make good economic sense 22 from the standpoint that if South Delta Water Agency 23 farmers were incurring about a million dollars in crop 24 damage due to salinity to go out and buy 10 or 15,000 25 acre-feet of water to help meet their requirements if that CAPITOL REPORTERS (916) 923-5447 8957 1 amount was less than a million dollars an acre-foot -- I 2 mean a million dollars in a year? 3 DR. ORLOB: I'm not an economist. In order to answer 4 your question -- 5 MEMBER DEL PIERO: That first question was easier to 6 answer. 7 MR. O'LAUGHLIN: The first one was pretty easy. But 8 what I'm getting at is this: If South Delta Water Agency 9 is being damaged by these high EC levels in the summer 10 months, isn't there some type of economic tradeoff or 11 analysis that could be done where they would go and try to 12 look if water supplies were available in the late summer 13 months to help offset or mitigate those damages? 14 DR. ORLOB: I think it would be an interesting 15 exercise in water management to do that, if it takes into 16 account the economics of the available water and the 17 resources being protected. 18 MR. O'LAUGHLIN: All right. Now, going back to this 19 exhibit that you had here that you were redirected on, I 20 went back and you did do an analysis. And I think this is 21 what Mr. Herrick was getting at in South Delta Water Agency 22 Exhibit Number 50, comparing the amounts of water that 23 would have been available if the water had gone into 24 storage. 25 Do you see that? CAPITOL REPORTERS (916) 923-5447 8958 1 DR. ORLOB: Yes, I do. 2 MR. O'LAUGHLIN: Okay. Now, let's take, for example, 3 15,000 acre-feet going into storage at New Melones, you 4 came up with a number that additional water quality flow 5 would be 6,000 acre-feet under the Interim Operation Plan; 6 is that correct -- 600 acre-feet, excuse me, under the 7 Interim Operation Plan? It's getting late in the day. 8 DR. ORLOB: I think that's approximately correct. 9 MR. O'LAUGHLIN: Okay. Now, did you do the same 10 analysis to figure out how much water the CVP contractors 11 would get, that would leave the basin under the Interim 12 Operation Plan, if 15,000 acre-feet was left in storage? 13 DR. ORLOB: No, I didn't. And, incidentally, I 14 didn't prepare this exhibit. 15 MR. O'LAUGHLIN: Okay. Who did prepare this exhibit, 16 if you know? 17 DR. ORLOB: I think probably John did. Didn't you? 18 MR. HERRICK: Alex -- 19 DR. ORLOB: Or Alex. 20 MR. HERRICK: Alex. 21 DR. ORLOB: I would support it, I mean the analysis 22 is pretty straightforward. It simply indicates that the 23 amount of water put in storage would be relatively a small 24 fraction of the total. 25 MR. O'LAUGHLIN: Okay. What happens in a year like CAPITOL REPORTERS (916) 923-5447 8959 1 1998 where it's a really wet year and OID had not used all 2 of its 300,000 acre-feet and had left 15,000 acre-feet up 3 in storage? You got that in your mind? 4 DR. ORLOB: Yeah. 5 MR. O'LAUGHLIN: Okay. What is the impact or 6 difference between that scenario and the scenario that you 7 depicted here? 8 DR. ORLOB: If there's a -- if it's an extremely wet 9 year and there's a lot of water in storage we might end up 10 having to spill some of it. I'm not sure exactly what the 11 situation would be. It would be -- I believe this 12 represents the upper end of that storage spectrum. 13 MR. O'LAUGHLIN: Now, in looking through the analysis 14 that you did I went back and pulled out some records for 15 May. And the historical flow in csf ranges anywhere from 16 1,000, at a minimum, all the way up to 20,000 csf. 17 Okay. What impact would doing this type of 18 reallocation of water have on salinity at Vernalis in May 19 given those types of flow numbers? 20 DR. ORLOB: Probably not very much. I think May is 21 not the particularly critical year (sic) for the South 22 Delta Water Agency from the point of view of available flow 23 for quality. We're a little bit more sensitive about July 24 and August and September, for example. 25 C.O. BROWN: Mr. Chairman? CAPITOL REPORTERS (916) 923-5447 8960 1 C.O. STUBCHAER: Mr. Brown. 2 C.O. BROWN: I'm getting a little lost here. Sorry, 3 Mr. O'Laughlin. 4 MR. O'LAUGHLIN: Not a problem. 5 C.O. BROWN: I apologize. Explain to me what you've 6 done here and what the 80,000 acre-feet -- where did you 7 get that figure? 8 C.O. STUBCHAER: If you know. 9 MR. HILDEBRAND: Should I answer that? 10 C.O. BROWN: Well, whoever. 11 MR. HILDEBRAND: Dr. Orlob didn't make the chart. 12 John and I collaborated on it. In years like '98 or '97 13 where you have a whole lot of spill, of course, all this is 14 out the window and those years aren't the problem. 15 But in most years if you leave more water in the 16 dam because you didn't use it downstream, then by the 17 Interim Operations Plan of the Bureau that water gets 18 reallocated. And their formula for reallocating it would 19 then only send down 600 acre-feet more water then we 20 otherwise would have had for water quality. 21 Whereas if it's used to apply to the agricultural 22 use within the boundaries of either of the districts, the 23 return flow is going to be more on the order that's 24 indicated there. So from a water quality point of view, 25 you take a big wrap as long as the Bureau does that kind of CAPITOL REPORTERS (916) 923-5447 8961 1 allocation. It relates back to this particular Interim 2 Operating Plan that we have such a problem with. 3 MR. O'LAUGHLIN: Yeah, but that's all -- 4 C.O. STUBCHAER: Mr. O'Laughlin, since Dr. Orlob did 5 not do this calculation, I'm having difficulty tying it to 6 the redirect. 7 MR. O'LAUGHLIN: Well, basically though in the 8 redirect -- I didn't know that Dr. Orlob did not do this 9 document until I just asked him the question. 10 Mr. Herrick's questions were the difference 11 between putting 15,000 acre-feet back into storage versus 12 putting 15,000 acre-feet of applied water within OID. I 13 knew they had this exhibit. Mr. Herrick was looking for 14 it. I was just wondering if Dr. Orlob had done the 15 exhibit. Now that he's not done the exhibit, I don't have 16 any other questions at this point. 17 C.O. STUBCHAER: All right. 18 MR. O'LAUGHLIN: I will get to those in the 19 cross-examination of Mr. Hildebrand. 20 C.O. STUBCHAER: All right. 21 MR. O'LAUGHLIN: Is your understanding -- what is 22 your understanding of in what year types the 15,000 23 acre-feet of water would be made available to the United 24 States Bureau of Reclamation? 25 DR. ORLOB: Well, I'm not sure what the agreement, or CAPITOL REPORTERS (916) 923-5447 8962 1 what the discussions that might lead up to an agreement 2 have considered, but I would suppose that it would be more 3 valuable from the point of view of those interested in the 4 quality of water at Vernalis to have that 15,000 acre-feet 5 available in dry and critical years. 6 MR. O'LAUGHLIN: Well, the 15,000 acre-feet isn't 7 being made available to South Delta Water Agency, it's 8 being made available to Oakdale; is that correct? 9 DR. ORLOB: As I understand it, yes, as you put it. 10 MR. O'LAUGHLIN: So you're not telling Oakdale how it 11 should use its water, are you? 12 DR. ORLOB: No. I might suggest they use it that 13 way. 14 MR. O'LAUGHLIN: The other thing is in a critically 15 dry period, from 1986 through 1992, if 15,000 acre-feet was 16 put back into storage by Oakdale in every year, do you know 17 what the end of month storages would look like for New 18 Melones as to what happened historically? 19 DR. ORLOB: Well, they wouldn't, in terms of the 20 total amounts of water in storage, it probably would not 21 make a large difference. 22 MR. O'LAUGHLIN: Did you review Mr. Steiner's 23 testimony in that regard as to the end of month storage at 24 New Melones with and without the San Joaquin River 25 Agreement? CAPITOL REPORTERS (916) 923-5447 8963 1 DR. ORLOB: I think I did look at that. I don't 2 recall the numbers. 3 MR. O'LAUGHLIN: Thank you very much, Dr. Orlob. 4 DR. ORLOB: Thank you. 5 C.O. STUBCHAER: Thank you, Mr. O'Laughlin. 6 Does the staff have any questions of Dr. Orlob 7 either on the direct or the redirect? 8 MR. HOWARD: No questions. 9 MS. LEIDIGH: No questions. 10 C.O. STUBCHAER: Does the Board? 11 MEMBER DEL PIERO: I have none, Mr. Chairman. 12 C.O. STUBCHAER: All right. Thank you. Then that 13 concludes the examination of Dr. Orlob as I understand it. 14 Would you like him excused for the time being? I 15 don't know if I can excuse, I guess everybody is subject to 16 recall later. 17 MR. HERRICK: Yes. Dr. Orlob would certainly be 18 available in the future. If necessary, we could coordinate 19 that. But I would ask that he be excused today. 20 C.O. STUBCHAER: All right. With no objection, you 21 are excused and thank you for your appearance. 22 DR. ORLOB: Thank you very much, Mr. Chairman and 23 Members of the Board. 24 C.O. STUBCHAER: All right. We'll now return to the 25 cross-examination of Mr. Hildebrand by Mr. O'Laughlin. CAPITOL REPORTERS (916) 923-5447 8964 1 ---oOo--- 2 FURTHER CROSS-EXAMINATION OF SOUTH DELTA WATER AGENCY 3 OF ALEX HILDEBRAND 4 BY SAN JOAQUIN RIVER GROUP AUTHORITY 5 BY TIM O'LAUGHLIN 6 MR. O'LAUGHLIN: Okay. Mr. Hildebrand, my 7 understanding based on your testimony just a little bit ago 8 was that you came up with this graph; is that correct? 9 MR. HILDEBRAND: That's correct. 10 MR. O'LAUGHLIN: Okay. Can you walk me through this 11 graph and explain to me the methodology by which you came 12 up with these numbers? 13 MR. HILDEBRAND: It's very simple. 14 MR. O'LAUGHLIN: Okay. 15 MS. LEIDIGH: Excuse me. Before we get -- 16 MR. O'LAUGHLIN: I'm sorry. South Delta Water Agency 17 Exhibit Number 50. 18 MS. LEIDIGH: Thank you. 19 MR. HILDEBRAND: If the district chooses to leave 20 this water in storage instead of using it -- let's take 21 first, if it uses it by applying it to agricultural use 22 within the boundaries of the district, then you will get a 23 return flow, which for illustrative purposes we will assume 24 is a third of the 15,000 or 5,000 that will reach the river 25 in various ways. CAPITOL REPORTERS (916) 923-5447 8965 1 C.O. BROWN: Mr. Chairman? 2 C.O. STUBCHAER: Mr. Brown. 3 C.O. BROWN: Point of clarification, you're assuming 4 in this case 66.6 percent irrigation efficiency? 5 MR. HILDEBRAND: Yeah. We're not saying that 6 necessarily is realistic, we're just saying "for instance." 7 C.O. BROWN: I understand, but a portion of that 8 would go to the groundwater and a portion would go to the 9 surface run off, right? 10 MR. HILDEBRAND: That's right, it reaches the river 11 in different ways. A lot of the people within the district 12 have orchards that irrigate out of groundwater. If you 13 don't keep replenishing that by this kind of irrigation 14 then they'll switch back to surface water. They have a 15 right to the surface water. 16 Furthermore, in the case of OID part of the water 17 actually gets back to the river via the Tuolumne basin, and 18 part gets back to the river by -- in the Stanislaus basin. 19 And of that part some are subsurface secretions, some are 20 spills by landowners, a little is spilled by the district 21 itself, some goes down and enters a drain that's just north 22 of the boundary of District 2075 and then is taken by a 23 district drain from there down, put into Walthal Slough and 24 that in turn runs into the river. 25 So there's various routes that it can take. The CAPITOL REPORTERS (916) 923-5447 8966 1 water doesn't disappear. As long as it all isn't consumed 2 by the crops, it ultimately gets back to the river. 3 C.O. BROWN: I understand that. But the point I want 4 to make, for clarification Mr. Chairman, that's if you have 5 that kind of irrigation efficiency, that's reasonable 6 irrigation efficiency. 7 But the waters that are lost due to nonconsumptive 8 use would be into the tailwater and then water that percs 9 down past the root zone. So not all that 5,000 acre-feet 10 would be water that you would see in surface runoff is the 11 question I guess I have. 12 MR. HILDEBRAND: You don't see it all in an immediate 13 time frame, but it doesn't disappear. It's still in the 14 watershed and it ultimately gets to the river at some point 15 in time. 16 C.O. BROWN: Right. 17 MR. HILDEBRAND: Now, then, if instead of doing that 18 they leave the 15,000 in storage, carry it over, their 19 arrangement with the Bureau permits them to carry over up 20 to 2,000 acre-feet, I believe. But if they left it in 21 storage then what happens is the Bureau allocates the water 22 to various uses based on the total amount that's in storage 23 and the inflow that's anticipated. 24 C.O. BROWN: There's where I'm getting lost. Is that 25 if they're going to sell it to Stockton East Water District CAPITOL REPORTERS (916) 923-5447 8967 1 or whoever, then the water is out of storage? It seems 2 like you're making a greater capacity available in New 3 Melones if you take that water out and use it, where is -- 4 I'm confused here. 5 MR. HILDEBRAND: Well, I think actually in the San 6 Joaquin River Agreement proposal, the proposal is to let it 7 down for fish flow, not to send it to Stockton East. 8 C.O. BROWN: I'm confused, Mr. Chairman. I'm sorry. 9 C.O. STUBCHAER: Well, we'll continue and see if it 10 becomes more understandable. 11 C.O. BROWN: Of course, it's not the first time I've 12 been confused. 13 MR. HILDEBRAND: Sorry. I better explain it. 14 MR. O'LAUGHLIN: No, you're doing fine. Let me just 15 read into the record maybe under -- this is San Joaquin 16 River Group Authority Exhibit Number 2, Paragraph 8.5. 17 (Reading): 18 "Oakdale Irrigation District should sell 15,000 19 acre-feet of water to the United States Bureau 20 of Reclamation in every year of this agreement. 21 This water will be made available at New Melones 22 during any month of the year as required by the 23 Bureau, and may be used for any authorized 24 purpose of the New Melones Project." 25 So that's the 15,000 acre-feet of water that we're CAPITOL REPORTERS (916) 923-5447 8968 1 talking about. 2 C.O. BROWN: The question I have is that it appears 3 that if you take that water out and utilize it, you're 4 depleting New Melones by that quantity, thereby, increasing 5 available storage for increased potential yield as opposed 6 to what we're showing up here (indicating). Am I wrong? 7 MR. HILDEBRAND: It is true that if you leave it in 8 storage it, to some degree, increases the risk of losing it 9 by spill. 10 C.O. BROWN: Right. 11 MR. HILDEBRAND: So we haven't addressed that 12 possibility in this, you could plow that into it. But the 13 frequency of spill, over period of decades, is very 14 infrequent. So the amount that you put at risk that will 15 spill it is real and meticulous. We should put that in 16 here. Nevertheless, it is a rather small figure compared 17 to the difference between 5,000 and 600. 18 And when the Bureau allocates the water that's 19 available in the reservoir and inflow to the reservoir in a 20 current year, they use a formula by their Interim Operating 21 Plan which would only increase the allocation for water 22 quality by 600. 23 And you can -- those figures are down at the 24 bottom of the table here (indicating). The column of 25 "Vernalis Water Quality" shows how much is increased in the CAPITOL REPORTERS (916) 923-5447 8969 1 availability of water for the water quality if you increase 2 the amount in the dam. 3 C.O. BROWN: Thank you, Mr. O'Laughlin, 4 Mr. Chairman. 5 MR. O'LAUGHLIN: Okay. So can you explain to me how 6 you got the 80,000 over 2 million and how that equals X 7 over 2.015 million acre-feet? 8 MR. HILDEBRAND: Yes. If you look at the Vernalis 9 water quality column down below here you see the 80,000 10 amount. In that kind of year -- we're using this as 11 illustrative, in that kind of a year they would release 12 80,000. Now, if we have another 15,000 in the reservoir 13 their allocation scheme would only allocate 600 of that 14 15,000 for an increase in water quality release. 15 MR. O'LAUGHLIN: But the two million is not only 16 storage but it's inflow as well, isn't it? 17 MR. HILDEBRAND: That's right. I should have said 18 storage plus inflow. That's considered to be the water 19 that's -- the total water available for allocation in a 20 given year is the storage carry over plus the inflow. 21 MR. O'LAUGHLIN: Okay. So it comes out to an 22 additional 600 acre-feet of water quality; is that correct? 23 MR. HILDEBRAND: Yes, that's right. 24 MR. O'LAUGHLIN: Okay. Now, under the scenario where 25 less -- let's take the difference between the two. In CAPITOL REPORTERS (916) 923-5447 8970 1 that one 5,000 acre-feet would have shown up at Vernalis 2 under your example. And in this case only 600 is showing 3 up. So there's a difference of about 4600 acre-feet; is 4 that correct? 5 MR. HILDEBRAND: Yes. 6 MR. O'LAUGHLIN: Okay. Is there anything that you 7 know of within the San Joaquin River Agreement that 8 prohibits the Bureau from releasing that water for water 9 quality? 10 MR. HILDEBRAND: The thing we're illustrating here is 11 what would happen under their interim plan. And that 12 interim plan is incorporated in the river agreement. 13 MR. O'LAUGHLIN: Let me read back to you then, once 14 again, from the San Joaquin River Group Authority Exhibit 15 Number 2, Paragraph 8.5 it says, 16 (Reading): 17 "Oakdale Irrigation District shall sell 15,000 18 acre-feet of water to the Bureau in every year 19 of this agreement. The water will be made 20 available at New Melones during any month of the 21 year as required by the Bureau and may be used 22 for any authorized purpose of the New Melones 23 Project." 24 Did you hear that? 25 MR. HILDEBRAND: I heard that, but the purchases CAPITOL REPORTERS (916) 923-5447 8971 1 they're making in the proposal that's in the plan is to use 2 it for fish flow. 3 MR. O'LAUGHLIN: Okay. Where is there within the San 4 Joaquin River Agreement any statement by the Bureau of 5 Reclamation that that water shall only be used for fish 6 flows? 7 MR. HILDEBRAND: It -- 8 MR. O'LAUGHLIN: The 15,000 acre-feet? 9 MR. HILDEBRAND: It's not so stated, but if you look 10 at the interim plan and see what they plan to use the water 11 for, that's where you'll find it. 12 MR. O'LAUGHLIN: But the Bureau hasn't committed to 13 anyone that they're only going to follow the Interim 14 Operations Plan during the 12-year period, have they? 15 MR. HILDEBRAND: They have not indicated any intent 16 to do otherwise. 17 MR. O'LAUGHLIN: Well, were you present when 18 Mr. Ploss testified and he stated that, in fact, the Bureau 19 was working on trying to implement a long-term plan during 20 this time period? 21 MR. HILDEBRAND: I've been a party to meetings where 22 they're trying to come up with a long-term plan and 23 there's, essentially, no progress that has been made on it. 24 MR. O'LAUGHLIN: Well -- but the Bureau is working 25 towards trying to get a long-term plan that may, in fact, CAPITOL REPORTERS (916) 923-5447 8972 1 deviate from the Interim Operations Plan; isn't that 2 correct? 3 MR. HILDEBRAND: Well, it might, but we have to go by 4 what they're saying they're going to do now. 5 MR. O'LAUGHLIN: Is there anything in what they say 6 now wherein they will foreclose the possibility of making 7 additional water quality available at Vernalis if there is, 8 in fact, water quality violations? 9 MR. HILDEBRAND: Their own analysis of their Interim 10 Plan indicates that they will violate it more frequently 11 and more substantively than they have in the past. And 12 then Steiner's modeling makes that same assumption. And we 13 went over in great detail here before the Board the 14 frequency and magnitude of the violations that would occur 15 under the San Joaquin River plan which incorporates that 16 Bureau plan. 17 MR. O'LAUGHLIN: In fact, the San Joaquin River 18 Agreement says that -- and this is Exhibit Number 2, Page 19 6, Paragraph 5.1 -- "Contingent upon New Melones 20 Operations" it says, 21 (Reading): 22 "The parties acknowledge, however, that the 23 current operation plan of New Melones Reservoir 24 will be superseded by the long-term plan of 25 operation currently being developed through the CAPITOL REPORTERS (916) 923-5447 8973 1 New Melones stakeholders process which may 2 differ from the USBR Interim Plan of Operation." 3 MR. HILDEBRAND: Well, I agree it says that, but 4 there's no provision for accomplishing any change that 5 would be favorable to us. All the analyses that have been 6 made lately have been on the assumption that they're going 7 to follow the interim plan. Even the analyses that are 8 being made for CalFed along the flows in the river 9 incorporate the river agreement, which also includes that 10 Interim Plan. 11 MR. O'LAUGHLIN: Okay. Since I've been here for the 12 last two days with you, Mr. Hildebrand, what is it that 13 South Delta Water Agency is going to bring to the table to 14 help resolve the problems in the San Joaquin River? Are 15 they going to bring money? Are they going to bring water? 16 What is it that South Delta Water Agency is contributing to 17 the process to help solve the problems in the South Delta 18 or the San Joaquin River? 19 MR. HERRICK: I would just object to that as being 20 argumentative. It clearly is, Mr. Chairman. 21 C.O. STUBCHAER: Thank you, Mr. Herrick. 22 Mr. O'Laughlin. 23 MR. O'LAUGHLIN: I don't think it's argumentative 24 because we're comparing two plans. One is the San Joaquin 25 River Agreement where parties have gone out and gotten CAPITOL REPORTERS (916) 923-5447 8974 1 consensus, given up certain things and gotten certain 2 things in order to try to implement the 1995 Water Quality 3 Control Plan. So I'm wondering under his plan what, if 4 anything, is the South Delta is going to contribute to the 5 solution. 6 C.O. STUBCHAER: Why don't you ask him the question 7 in that manner: What, if anything, are they going to 8 contribute? 9 Mr. Herrick. 10 MR. HERRICK: That's the reason it's argumentative. 11 It presupposes that riparian diverters in the South Delta 12 are supposed to offer something to cure the problems that 13 have been caused by somebody else. But this is argument 14 for attorneys to make, that's not a question for 15 Mr. Hildebrand. 16 C.O. STUBCHAER: Mr. Del Piero. 17 MEMBER DEL PIERO: Mr. Chairman, meaning no 18 disrespect to counsel, but this is a slippery slope. One, 19 it assumes that South Delta was invited to participate. If 20 they weren't invited to participate, the first question 21 that comes to mind is: Why were they not invited to 22 participate? 23 And the second thing is the issue raised by 24 Mr. Herrick. The question is whether or not the riparians 25 have any obligation to bring anything to the table, because CAPITOL REPORTERS (916) 923-5447 8975 1 at least currently the way the water law is in this state 2 is it's the obligation on the part of junior appropriators 3 to bear the burden of reduction. 4 So it just seems to me no factual information of 5 value to the Board will be generated from answering this 6 question. But we'll hear some very interesting argument I 7 have no doubt. 8 C.O. STUBCHAER: And I'm going to call on you, 9 Mr. Nomellini, in a minute. 10 To a certain extent this question was asked and 11 answered regarding the flow by the diversion pumps in the 12 South Delta and what responsibility did the South Delta 13 Water Agency have and its diverters have for public trust 14 issues. 15 But, Mr. Nomellini. 16 MR. NOMELLINI: Yeah. I want to object to the 17 portion of Mr. O'Laughlin's statement in the question that 18 alleges that the San Joaquin River Agreement meets the 1995 19 Water Quality Control Plan. It meets a modified fishery 20 flow, or purports to meet a modified fishery flow which we 21 had extensive evidence to show is not the 1995 Water 22 Quality Control Plan. There's been no argument even 23 presented that it meets the Vernalis Water Quality Control 24 Plan portion of it. 25 MEMBER DEL PIERO: Mr. Chairman, this is exactly what CAPITOL REPORTERS (916) 923-5447 8976 1 I was concerned about. 2 C.O. STUBCHAER: Mr. Nomellini, that's testimony and 3 Mr. O'Laughlin's question was not testimony. 4 And, Mr. Brandt. 5 MR. BRANDT: I would just add that the Bureau through 6 the San Joaquin River Agreement has made the commitment 7 that it will continue to take the responsible for meeting 8 the Vernalis standards including salinity. And so I would 9 disagree with that. That's why I would like an answer to 10 this question. If it's no, it's no. 11 MEMBER DEL PIERO: I guess, Mr. Chairman, this just 12 strikes me -- it seems to me if the Bureau was really 13 interested in knowing the answer to this question they 14 would have asked South Delta about two years ago. 15 C.O. STUBCHAER: Well, thank you for that, 16 Mr. Del Piero. 17 Mr. Brown. 18 C.O. BROWN: I have a great deal of respect for the 19 person asking the question and the person answering the 20 question. I personally recognize with Mr. Del Piero that 21 it may be a slippery slope, but I also recognize the 22 ability of the parties involved. And if there is an answer 23 to the question, Mr. Chairman, I would like to hear it, 24 even if the answer is what Mr. Del Piero suggested as to 25 the riparian. So I would like to hear the answer, CAPITOL REPORTERS (916) 923-5447 8977 1 Mr. Chairman. 2 C.O. STUBCHAER: Thank you, Mr. Brown. I was going 3 to ask that you rephrase the question. And let's make it 4 less argumentative to the extent it was argumentative 5 before, but I would like to hear the answer, also. 6 MR. O'LAUGHLIN: Well, I think Board Member Del Piero 7 has a good suggestion and I'll try to break it down into 8 two subcategories. 9 Did South Delta Water Agency participate in any of 10 the San Joaquin River Group Authority's member entities in 11 trying to resolve their differences in order to become part 12 of the San Joaquin River Agreement? 13 MR. HILDEBRAND: I can go back over that, as we have 14 before, that the San Joaquin River Group did not wish to 15 discuss their proposal with us until they had it all 16 developed. They did invite me to meet with them. I think 17 I met with them three times. 18 But since I could not agree to this violation of 19 the Vernalis standard and could not agree that it was 20 better to take water out of the tributaries than to 21 recirculate, or to get water from outside the river system, 22 I was told explicitly that they no longer wished to 23 negotiate with us. And that, in fact, as I have said 24 before, I was told specifically that the River Group was at 25 war with the South Delta Water Agency. That's the long and CAPITOL REPORTERS (916) 923-5447 8978 1 short of it. 2 Now, this question of what have we done, we just 3 talked here at great length about submitting a proposal, 4 comprehensive plan which would make it possible to take 5 care of us, meet our needs in a manner that is water 6 efficient and will not require these things that would 7 damage us. Now I'm told by the Bureau orally, I heard it I 8 think once before, that they are now planning to abide by 9 the Vernalis standard at all times. I have seen nothing in 10 writing to indicate that that is the case. And the whole 11 plan is predicated on not doing that. 12 All of the testimony that was submitted by the 13 River Group indicated they would not do that. I have no 14 reason to believe that they will do it. They have not 15 complied in the past, why should I assume they're going to 16 comply in the future? 17 MEMBER DEL PIERO: Mr. Chairman? 18 C.O. STUBCHAER: Mr. Del Piero. 19 MEMBER DEL PIERO: As I pointed out, sir, this is a 20 very interesting argument, but factually it contributes 21 nothing to our evidentiary record. 22 C.O. STUBCHAER: It's also been asked and answered 23 completely before. All right. The next -- Mr. Brown? 24 C.O. BROWN: Mr. Chairman, it appears that there was 25 differences and difficulties in these two main groups CAPITOL REPORTERS (916) 923-5447 8979 1 getting together previously with some of their concerns and 2 ideas. And that's probably very unfortunate, it may have 3 made for a better product. 4 But, perhaps, this may not be the best forum, but 5 at least it's a forum where I think both sides, or all 6 sides are learning a little bit more about the concerns and 7 interests of others. And to that extent it may be 8 beneficial to the process. Therefore, I would suggest that 9 we cut as much slack as we can, still maintaining a proper 10 decorum in our activities here. But while I hope that we 11 can proceed in a friendly progressive manner, I have to 12 tell all of you this type of exchange has been very 13 beneficial as far as I'm concerned. And we recognize the 14 vast amount of effort that's gone into this by the parties 15 involved. And it is appreciated. 16 So, perhaps, the Chairman might be more lenient if 17 we can continue in this vein and still keep it a positive 18 thing that we're doing. And as far as I'm concerned, to 19 date it has been very positive. Maybe this can serve as a 20 forum to help iron out some of the differences. 21 C.O. STUBCHAER: Thank you, Mr. Brown. 22 With regard to the other question that you had 23 asked, I think it had to do with: What, if anything, South 24 Delta Water Agency was doing to help address the problems, 25 was that part -- or a rephrasal of your question? CAPITOL REPORTERS (916) 923-5447 8980 1 MR. O'LAUGHLIN: No. I only asked him one question 2 in regards to meetings with the San Joaquin River Group 3 Authority trying to get together with this. I never asked 4 the second part of that question. 5 C.O. STUBCHAER: I meant earlier. 6 MR. O'LAUGHLIN: Yes, earlier I asked that question. 7 C.O. STUBCHAER: All right. Just to save the asked 8 and answered part of it, I'll tell you what I recollect. 9 There was discussion in support of the barriers to help 10 address the problems within the South Delta channels, as 11 one part of the answer. And, perhaps, if you wanted to 12 explore others, not putting it in the past tense but, "What 13 do they propose to do?" in a nonargumentative fashion. 14 MR. O'LAUGHLIN: Okay. Other than the barriers, what 15 is South Delta proposed to do? 16 MR. HILDEBRAND: We have proposed a recirculation 17 alternative, the control of the time of drainage on the 18 west side, both of those things reduce the burden on New 19 Melones and the need for providing water out of the Merced 20 and Tuolumne. 21 MR. O'LAUGHLIN: Okay. So is South Delta Water 22 Agency going to pay for the tidal barriers that are going 23 to be installed in the South Delta? 24 MR. HILDEBRAND: In the case of the tidal barriers, 25 we have an agreement with the DWR and the Bureau that if CAPITOL REPORTERS (916) 923-5447 8981 1 and when they have the operable permanent barriers in 2 place, we will put up $200,000 a year toward the 3 maintenance. However, it does not call for us to pay any 4 of the capitol costs, or any costs in excess of $200,000 a 5 year because it is basically a matter of them mitigating 6 their impacts on us. 7 MR. O'LAUGHLIN: Okay. 8 MR. HILDEBRAND: If we just put up the $200,000, it's 9 just sort of earnest money. 10 MR. O'LAUGHLIN: Okay. Now in regards to the 11 recirculation that you just testified to, my understanding 12 is that South Delta Water Agency will put up no money and 13 no water in regards to the recirculation proposal that you 14 made; is that correct? 15 MR. HILDEBRAND: That's right. Nobody puts up any 16 water. As far as the money is concerned, we assume that it 17 can be derived from the same source that was going to give 18 you the 48 million. 19 MR. O'LAUGHLIN: Do you have any agreement from the 20 United States Bureau of Reclamation, or U.S. Fish and 21 Wildlife as to the agreement to pay money to implement your 22 recirculation plan? 23 MR. HILDEBRAND: Nope. 24 MR. O'LAUGHLIN: What don't you understand about this 25 sentence in regards to the San Joaquin River Agreement, CAPITOL REPORTERS (916) 923-5447 8982 1 Mr. Hildebrand -- 2 MR. HERRICK: Objection. Argumentative. 3 MR. O'LAUGHLIN: I haven't asked the question yet. 4 MR. HERRICK: Well, Mr. Chairman, if it starts out 5 with, "What don't you understand about this," it's 6 argumentative. 7 C.O. STUBCHAER: Yes. Please, rephrase the question, 8 Mr. O'Laughlin. 9 MR. O'LAUGHLIN: Let me read this sentence to you, 10 Mr. Hildebrand. 11 (Reading): 12 "In order to achieve the purpose of this 13 agreement, the USBR shall assume 14 responsibility for the term of this agreement 15 with the San Joaquin River portion of 1995 Water 16 Quality Control Plan objectives that can 17 reasonably be met through flow and measures." 18 Now, why is it that you assume that the Bureau is 19 going to violate the salinity standard at Vernalis with 20 that statement in the agreement? 21 MR. HILDEBRAND: The agreement is ambivalent. It 22 says that at one place, and at another place it says 23 they're going to operate by the interim agreement. In all 24 the analyses that you had Dan Steiner make, they also 25 assume that. So I see no reason not to assume that they'll CAPITOL REPORTERS (916) 923-5447 8983 1 behave more as they have in the past than as they indicate 2 they might in the future. 3 MR. O'LAUGHLIN: Well -- 4 MR. HILDEBRAND: Another problem we have with that, 5 let me amplify that response, is that the whole analysis 6 presented by the River Group compares the consequence of 7 implementing the San Joaquin River Plan with what would 8 happen if you did not do that and still had the interim 9 plan. It doesn't compare it to a plan that would 10 completely comply with the Vernalis salinity standard. 11 MR. O'LAUGHLIN: On Page Number 4 of your exhibit you 12 make a statement, 13 (Reading): 14 "The increased pumping will not draw Sacramento 15 water across the Delta as additional water is 16 coming from the San Joaquin River, with the San 17 Joaquin." 18 Have you done any modeling to support that 19 statement? 20 MR. HILDEBRAND: DWR has done extensive modeling of 21 the hydrology of the Delta with different inflows and 22 different exports and so forth. And, furthermore, it's a 23 rather simple matter. 24 Suppose you have a swimming pool and you bring 25 water into the swimming pool at one end and take it back CAPITOL REPORTERS (916) 923-5447 8984 1 out at the same end, you're not drawing any water from the 2 other end of the pool. And that's what we have here in the 3 case of the Delta. You're not going to draw water from the 4 Sacramento River by virtue of running some water into the 5 South Delta and taking it back out of the South Delta. 6 MR. O'LAUGHLIN: Okay. On that same page, on Page 4 7 you go through an analysis where you believe that your 8 recirculation plan can meet the Delta Smelt Biological 9 Opinion. Do you have that in front of you, Mr. Hildebrand, 10 Page 4, bottom of the page? 11 MR. HILDEBRAND: Okay. Sorry, I had the wrong one. 12 Okay. 13 MR. O'LAUGHLIN: Now, the purpose of this testimony 14 on this page appears to be that the Delta Smelt Biological 15 Opinion requiring, what you believe, a 2 to 1 ratio of 16 export to San Joaquin River flows can be met; is that 17 correct? 18 MR. HILDEBRAND: I said it could be met a good deal 19 of the time, not all the time. But you could usually -- 20 most of the time you could provide part of the water by 21 recirculation and sometimes all of it. 22 MR. O'LAUGHLIN: Okay. Well, what happens in years 23 in which we have flow requirements on the San Joaquin River 24 of, let's take 4600 csf flow requirement which is for a 25 below-normal year. There is 2,000 csf in the river and we CAPITOL REPORTERS (916) 923-5447 8985 1 need an additional 2600 csf. 2 The exporters are allowed to divert on a 2 to 1 3 ratio so they can get 2,000 -- 1,000 plus your 2600 that 4 would exceed the 2 to 1; is that correct? 5 MR. HILDEBRAND: I thought we went through these same 6 numbers this morning. The response I gave was that to 7 whatever extent you are not permitted to recirculate, you'd 8 have to purchase the water. You recirculate whatever the 9 biological opinion permitted. 10 But I also pointed out that the biological opinion 11 was based on a situation in which you did not have this 12 recirculation. And, therefore, the quantities involved 13 would, indeed, pull water across from Sacramento. 14 Consequently, I reiterate, that we assume that 15 there would be a revision of the biological opinion. 16 Depending on what that revision said it would influence the 17 amount that we could recirculate. 18 It seemed to us probable that they would find that 19 the recirculation is more compatible with the fishery than 20 the case where you pump the same amount of water without 21 the recirculation. 22 MR. O'LAUGHLIN: Well, in order for that to be clear 23 about this, let's take that year where we have 4600 csf, is 24 the requirement at Vernalis in a below-normal year for the 25 April/May pulse flow period. You have that? CAPITOL REPORTERS (916) 923-5447 8986 1 MR. HILDEBRAND: I heard what you said. 2 MR. O'LAUGHLIN: Okay, so we have that. Now, we have 3 that, we have 2,000 csf that's occurring in the river on 4 April 15th. Okay. It's just releases from the 5 tributaries, there's some drainage coming back in, but we 6 have 2,000 at Vernalis. 7 MR. HILDEBRAND: Yeah, and we're all going to do it 8 in April as we went through this morning -- 9 MR. O'LAUGHLIN: Right. 10 MR. HILDEBRAND: -- which is a little bit prejudicial 11 to the situation as compared to doing it later, but be that 12 as it may. 13 MR. O'LAUGHLIN: Whatever one, whether it's April/May 14 or May altogether. So we have a difference of 2600 csf 15 which is going to have to be recirculated, correct? 16 MR. HILDEBRAND: If it's done entirely on 17 recirculation, yes. 18 MR. O'LAUGHLIN: Okay. Now, what I wanted to try to 19 understand is if we recirculate that water, I've got that 20 in my mind, under your scenario with this what would the 21 exporters be allowed to export for consumption during this 22 time period? 23 MR. HILDEBRAND: The same that they would have 24 exported for consumption in the absence of the 25 recirculation. CAPITOL REPORTERS (916) 923-5447 8987 1 MR. O'LAUGHLIN: Okay. So if we went back in time, 2 in the absence of recirculation are you assuming that the 3 Water Quality Control Plan is being met, or not being met? 4 MR. HILDEBRAND: Is being met. 5 MR. O'LAUGHLIN: Okay. So under that scenario then 6 the 4600 would have been there and then at a 2 to 1 ratio 7 they would have been entitled to take 2300 csf? 8 MR. HILDEBRAND: I guess I misunderstood you. 9 MR. O'LAUGHLIN: Okay. 10 MR. HILDEBRAND: In the absence of the recirculation, 11 we're assuming if that's the base case, which does not meet 12 it, the question is: What is the most water efficient way 13 to meet it? 14 MR. O'LAUGHLIN: Okay. I'm trying to get the numbers 15 clear so I can try to get a handle on what are the impacts 16 south of the Delta, if anything, and what amount of water 17 we need. 18 Under your scenario, let's go back again. Now, we 19 have 4600 is in the requirement, 2,000 is in the river, we 20 need 2600 for recirculation. Now, what -- under that 21 scenario you said that the exporters would get what they 22 would have gotten under the Delta Smelt Biological Opinion. 23 Is that half of 4600? Is that half of 2,000 csf? What do 24 the exporters get under your scenario? 25 MR. HILDEBRAND: Our proposal is that the exporters CAPITOL REPORTERS (916) 923-5447 8988 1 would receive whatever they would have received in the 2 absence of recirculation. We just superimpose the 3 recirculation on whatever else would happen. 4 MR. O'LAUGHLIN: Okay. So let's assume then that -- 5 under the hypothetical then that what would have occurred 6 there without recirculation was 2,000 csf. Remember, that 7 was our base flow in the river. Okay. So under your 8 scenario, then, they would have received 1,000 csf for 9 consumptive uses? 10 MR. HILDEBRAND: Go over those figures, again. 11 MR. O'LAUGHLIN: Yeah. What I'm trying to drive at 12 here and we're having difficulty is -- what I want to know 13 is what is the CVP entitled to export? Just give me a 14 number that they're entitled to export under this scenario. 15 MR. HILDEBRAND: It doesn't matter. As I repeat, it 16 would export for -- export use whatever they would have 17 exported otherwise. And that's not a fixed number. That 18 varies with situations. 19 MR. O'LAUGHLIN: I know. But I gave you an example. 20 There is 4600 that needs to be met at Vernalis. You have 21 2,000 flowing in the river. We established recirculation 22 of 2600, so that's done and gone. I'm in total agreement 23 with you. Now I want to know what additional amount of 24 water can they pump at the DMC under this hypothetical with 25 your recirculation proposal? CAPITOL REPORTERS (916) 923-5447 8989 1 MR. HILDEBRAND: The additional pumping is 2 distinguished from additional export, for export use would 3 be the same as the release from the Newman Wasteway, if 4 it's 2600, it's 2600. 5 MR. O'LAUGHLIN: Okay. So then they don't get to 6 pump any water on the CVP for consumptive purposes? 7 MR. HILDEBRAND: Under that particular scenario, 8 which I think is rather extreme, you would have to get some 9 wheeling done for them. 10 C.O. BROWN: Mr. Chairman? 11 MR. O'LAUGHLIN: I'm confused. 12 C.O. STUBCHAER: Mr. Brown. 13 C.O. BROWN: I think that confused Mr. Hildebrand a 14 little bit. That's not what he said on three different 15 occasions. 16 MR. O'LAUGHLIN: I don't disagree with that. I'm now 17 totally confused as to where we are. 18 MR. HILDEBRAND: Okay. What did I say that confused 19 you all? 20 C.O. BROWN: Mr. Chairman? 21 MEMBER DEL PIERO: Mr. Chairman, I have a response. 22 C.O. STUBCHAER: Excuse me, Mr. Del Piero, Mr. Brown 23 was -- 24 MEMBER DEL PIERO: Pardon me. 25 C.O. BROWN: I understood that the 2600 would be in CAPITOL REPORTERS (916) 923-5447 8990 1 addition to what they would normally be able to divert. 2 MR. HILDEBRAND: That's right. 3 C.O. BROWN: I've heard that three times now. 4 MR. HILDEBRAND: Yes. 5 C.O. BROWN: Now, the question is, as I understand it 6 is: How much would they normally be able to divert? 7 MR. HILDEBRAND: That's right. 8 C.O. BROWN: That figure is dynamic depending upon 9 biological opinions and so forth, but I would presume that 10 you would have an upper limit of 2,000 csf, because of the 11 capacity in the DMC being 4600. 12 MR. HILDEBRAND: No. But our proposal doesn't 13 restrict the pumping for recirculation to the pumping 14 capacity of the federal pumps, even though that would 15 normally be the case. So under some circumstances they 16 might have to get the state pumps to wheel some of the 17 water for them. 18 C.O. BROWN: That needs to be said. All right. 19 MR. HILDEBRAND: I'm sorry I didn't make that clear. 20 MR. O'LAUGHLIN: Okay. Now -- 21 C.O. STUBCHAER: Mr. Del Piero, was your question 22 taken care of? 23 MEMBER DEL PIERO: I had a sense that's where he was 24 going. 25 C.O. STUBCHAER: All right. CAPITOL REPORTERS (916) 923-5447 8991 1 MR. O'LAUGHLIN: Okay. The state is going to make up 2 some pumping. Now the question I have and I've written it 3 down in quotes, "normally be able to divert." 4 So now under the example -- I realize that every 5 year this changes given how much water is in the river and 6 everything else, but under the real limited example I gave 7 you, what would the CVP normally be able to divert for 8 export? 9 C.O. STUBCHAER: Excuse me. The CVP -- 10 MR. O'LAUGHLIN: CVP -- exporters. The exporters, 11 excuse me. 12 C.O. STUBCHAER: Okay. 13 MR. HILDEBRAND: Whatever they would have exported in 14 the absence of the recirculation. 15 MR. O'LAUGHLIN: Okay. So in the absence of the 16 recirculation I want you to give me a number now. With 17 this hypothetical what would, in your mind, have been the 18 number in csf that the CVP and SWP would have been entitled 19 to export without the recirculation? 20 MR. HERRICK: If I may just for clarification. I 21 believe the hypo needs some more specifics. What is in 22 effect in the absence of recirculation? Is the biological 23 opinion controlling that? Is it pre-biological opinion? 24 The analysis of the Board under the 1995 Water 25 Quality Control Plan made certain assumptions which various CAPITOL REPORTERS (916) 923-5447 8992 1 parties disagree with. I mean you have to have a baseline 2 in order to determine that flow amount. 3 MR. O'LAUGHLIN: I would agree, if I may address the 4 Chairman directly. 5 C.O. STUBCHAER: Yes. 6 MR. O'LAUGHLIN: I agree with the comments by 7 Mr. Herrick, but since I didn't draft this testimony I 8 don't know where he started from that analysis. So what 9 I'm trying to get from Mr. Hildebrand is what was the 10 methodology by which he came up with what they would 11 normally be able to divert. I don't know if they're Delta 12 Smelt Biological Opinion, the 1995 Water Quality Control 13 Plan, OCAP, whatever, I don't know. I need him to tell me. 14 C.O. STUBCHAER: Mr. Hildebrand, could you, please, 15 answer the question to the best of your ability? 16 MR. HILDEBRAND: As Mr. Brown says this is a dynamic 17 figure. It wasn't necessary for us to determine what that 18 figure was in any given year so long as the stipulation is 19 that whatever that number is we have to recirculate the 20 balance. 21 MR. O'LAUGHLIN: But doesn't that have a huge impact, 22 maybe potentially, on the exporters from the amount of 23 water that otherwise would have been available for export 24 which is no longer available under your recirculation plan? 25 MR. HILDEBRAND: We're not going to take away any CAPITOL REPORTERS (916) 923-5447 8993 1 water that was otherwise available. They export exactly 2 what they would have in the absence of the recirculation. 3 And then we superimpose that pumping on that export. 4 Whatever it may be, it doesn't matter. 5 C.O. STUBCHAER: Excuse me. Does this assume that 6 the Corps of Engineers' permits that the pumps are in 7 effect, or that the recirculation -- 8 MR. HILDEBRAND: The presumption that we made was 9 that the recirculation would be permitted to be 10 superimposed on whatever base operation would otherwise 11 have occurred. And if it takes some change to the Corps 12 giving us, if it takes some change by the biological 13 opinion, that might be necessary. If neither of those are 14 forthcoming, then you have to buy the water instead. 15 MEMBER DEL PIERO: I think we're trying to grab 16 butter that's been sitting on the counter for an hour. 17 C.O. STUBCHAER: In Minnesota? 18 MEMBER DEL PIERO: You squeeze it through your 19 fingers and never get ahold of it. 20 MR. O'LAUGHLIN: Well, wait. I know we're having 21 difficulty here, I know it's late in the day, but this is 22 an important point to try to understand the impacts that 23 may or may not occur either to the exporters or other 24 people, and whether or not it's viable as an alternative 25 that there is capacity to move this water south and around. CAPITOL REPORTERS (916) 923-5447 8994 1 MEMBER DEL PIERO: Mr. Chairman? 2 C.O. STUBCHAER: Mr. Del Piero. 3 MEMBER DEL PIERO: Mr. O'Laughlin, I really 4 appreciate where you are. The problem is in terms of 5 getting an answer from Mr. Hildebrand that's going to have 6 some substantive meaning to this Board in terms of his 7 belief as to the capacity that exists, all of the factors 8 affecting that capacity have to be incorporated into your 9 question. 10 And I understand that you're trying to get there, 11 but it's 3:30 and it may well be tomorrow before you arrive 12 at the point where all those factors are properly 13 incorporated into your so-called hypothetical. 14 C.O. STUBCHAER: Mr. Brown. 15 MEMBER DEL PIERO: I mean when the Chairman starts 16 saying, you know, are the pumps assumed in this 17 hypothetical, you know that all of the factors are not 18 present to get an answer out of Mr. Hildebrand that is 19 going to be of any particular value. 20 MR. O'LAUGHLIN: Well, maybe I can approach this on a 21 different basis. 22 C.O. STUBCHAER: Excuse me, just a second, 23 Mr. O'Laughlin. 24 Mr. Brown. 25 C.O. BROWN: I think I understand what's being said CAPITOL REPORTERS (916) 923-5447 8995 1 very well here. And just to make sure I'll ask a 2 clarifying question here. 3 I understand that the diverters who will be able 4 to divert whatever quantity that they would have been able 5 to divert and the variable then goes to the recirculation 6 quantity. 7 MR. HILDEBRAND: That's correct. 8 C.O. BROWN: It may be zero. It may be 2,000 csf, or 9 half that. But the diverters would continue to divert a 10 like quantity under whatever scenario that they're required 11 to use. And then if there's capacity left over in the DMC 12 or the California Aqueduct, then that capacity would be 13 utilized by the recirculation program. 14 MR. HILDEBRAND: That is correct. 15 C.O. BROWN: Is that correct? 16 MR. HILDEBRAND: That is correct. 17 MEMBER DEL PIERO: Mr. Chairman? 18 C.O. STUBCHAER: Mr. Del Piero. 19 MEMBER DEL PIERO: Mr. Brown, you articulated it 20 perfectly except that's not what Mr. O'Laughlin is asking. 21 C.O. BROWN: I understand. 22 MEMBER DEL PIERO: That's the problem. Okay. The 23 concept of how it works, I think particularly now after you 24 outlined it and everybody has got a handle on it, but 25 that's not what he's getting to. CAPITOL REPORTERS (916) 923-5447 8996 1 And what he's getting to is -- and it may well be 2 that's where you want to go in terms of dealing with each 3 particular factor that has an impact on the storage and the 4 carrying capacity of the system, but if that is it, then we 5 just sort of need to adjust ourselves in our chairs and get 6 ready. 7 C.O. STUBCHAER: Ms. Forster. 8 MEMBER FORSTER: Alex, is it your opinion that what 9 Mr. O'Laughlin is trying to get at is the water cost in 10 your scenario? We can understand that. All right, first 11 I'll let you answer the question. 12 MR. HILDEBRAND: I assume he wants to know whether 13 this scenario would have an impact on other water users. I 14 don't see that it would. Therefore, I can't quantify it 15 because I don't think there would be any. 16 MR. O'LAUGHLIN: All right. And that brings us to 17 the nubilous issue, if you don't mind if I can maybe make a 18 prefatory statement before going in? 19 C.O. STUBCHAER: All right. 20 MR. O'LAUGHLIN: I think we can get to this. All I'm 21 trying to get at is I understand recirculation moves 22 through system and that's accounted for. But what I'm 23 trying to understand is under this hypothetical that I gave 24 you would the CVP and SWP be diverting 4600 csf, which is 25 the one-to-one under the three day, under the 1995 Water CAPITOL REPORTERS (916) 923-5447 8997 1 Quality Control Plan, or is it 2300, which is half that 2 amount which is the Delta Smelt Biological Opinion, or is 3 it half of the amount of the base flow that was in the 4 river to start with, which is the 2,000 csf? 5 That -- where should we go in what direction to 6 understand that? Because it makes a big difference if 7 we're at 4600 csf and they're exporting that and then we 8 put on top of that an additional 2600, we're now at 6900 9 csf of export, which is a little bit higher than the 1995 10 Water Quality Control Plan. 11 MR. HILDEBRAND: Higher at what point? 12 MR. O'LAUGHLIN: Well, in the 1995 Water Quality 13 Control Plan it states that in a below-normal year the 14 amount is roughly 4600 csf. And that on a three-day 15 running average -- 16 MR. HILDEBRAND: At Vernalis? 17 MR. O'LAUGHLIN: Yes, at Vernalis. And that on a 18 three-day running average the SWP and CVP are entitled to 19 take a one-to-one ratio in regards to that flow. 20 MR. HILDEBRAND: Well, under the present biological 21 opinion they wouldn't be allowed to take 4600. 22 MR. O'LAUGHLIN: Okay. Great. So we're not going to 23 let them take 4600. Now, are we down to the 2300, because 24 the 1995 Water Quality Control Plan calls for 23 -- calls 25 for 4600. So that water would have been there. And now CAPITOL REPORTERS (916) 923-5447 8998 1 we're going to cut that in half to meet the Delta Smelt 2 Biological Opinion? 3 MR. HILDEBRAND: If the biological opinion is not 4 changed? 5 MR. O'LAUGHLIN: Right. 6 MR. HILDEBRAND: Then, yes, that would be the case. 7 MR. O'LAUGHLIN: Okay. So then under my 8 hypothetical, then, what would have happened under this 9 scenario is that the CVP and SWP could export 2300 csf of 10 water thus keeping themselves whole under the Delta Smelt 11 Biological Opinion, right? 12 MR. HILDEBRAND: Yes. 13 MR. O'LAUGHLIN: Okay. And then the only add water 14 is on 2600 csf to get the recirculation? 15 MR. HILDEBRAND: Correct. 16 MR. O'LAUGHLIN: And then all we've done is just 17 incrementally violated the 1995 Water Quality Control Plan 18 because we're exporting 4900 csf instead of 4600 csf? 19 MR. HILDEBRAND: Well, that doesn't matter. We're 20 pumping more, we're not exporting more. There's no net 21 increase in the export, we're just pumping more. We're 22 seeing the water twice. 23 MR. O'LAUGHLIN: Right. But do you believe -- and 24 help me in looking at the 1995 Water Quality Control Plan, 25 does the plan make any difference between water being CAPITOL REPORTERS (916) 923-5447 8999 1 pumped versus consumptive water, or does it just say water 2 pumped at the exports? 3 MR. HILDEBRAND: I've said all along that the 4 presumption in this plan is that whatever changes needed to 5 be made to permit the recirculation to be superimposed on 6 the base case would, indeed, be allowed. 7 MR. O'LAUGHLIN: Okay. So if I understand correctly, 8 one of the differences between your plan and the San 9 Joaquin River Agreement Plan is that the San Joaquin River 10 Agreement reduces flows during the pulse flow time period 11 and your plan may, in fact, increase exports above the 12 one-to-one ratio during the 30-day pulse flow period? 13 MR. HILDEBRAND: When you say it reduces flows, you 14 mean reduces pumping? 15 MR. O'LAUGHLIN: Reduces export pumping. 16 MR. HILDEBRAND: That's true. But the question is: 17 What difference does it make? 18 MR. O'LAUGHLIN: Okay. Now, can you explain to me 19 why, as you're sitting here in front of the Board, you're 20 adamantly opposed to Vernalis salinity standards being 21 violated, because they're contained in the 1995 Water 22 Quality Control Plan and should be fully implemented, why 23 is it that the Board now make an exception for your 24 recirculation plan to increase export pumping above the 25 one-to-one ratio called for in the plan? CAPITOL REPORTERS (916) 923-5447 9000 1 MR. HILDEBRAND: Well, if you consider that those are 2 equivalent things, I suppose you could object. But the 3 pumping restriction was related to net exports. And those 4 net exports bring fish -- suck fish across from the 5 Sacramento River. 6 So if you're recirculating, the reason for that 7 limitation on the export pumping -- on the rate of pumping 8 no longer exists. So it would seem reasonable to 9 reconsider that; whereas, the damage to the system of 10 violating the Vernalis standard, salinity standard is very 11 real. 12 MR. O'LAUGHLIN: And the fishery one, in your 13 opinion, is not a real one? 14 MR. HILDEBRAND: I said the basis for the biological 15 opinion, which lead to this restraint on export pumping 16 rates rather than exports, is no longer applicable if you 17 are recirculating rather than doing the other. 18 The case has not been made in any clear manner 19 that the increase pumping, if it's only for recirculation, 20 would cause the same kind of damage as increased pumping 21 under the biological opinion, which brings the Sacramento 22 River across. 23 MR. O'LAUGHLIN: Okay. On Page 5, the first 24 paragraph you say on the last sentence, 25 (Reading): CAPITOL REPORTERS (916) 923-5447 9001 1 "Export pumping cannot and does not take 2 priority over endangered or threatened species 3 or over superior water rights." 4 Is this what we talked about earlier where you 5 meant at sometime and someplace it may be that the exports 6 have to take a cut and that's their burden? 7 MR. HILDEBRAND: Which? 8 MR. O'LAUGHLIN: Sure. Page 5, first paragraph -- 9 MR. HILDEBRAND: First paragraph. 10 MR. O'LAUGHLIN: -- last sentence, 11 (Reading): 12 "Export pumping cannot, does not take priority 13 over endangered or threaten species or over 14 superior water rights." 15 MR. HILDEBRAND: Let's take the threaten species 16 first. Nothing we do takes priority as far as I know over 17 the protection of endangered species. So that's just I 18 think a statement of fact. That would apply whether it's 19 your proposal, or our proposal, or something else. 20 So far as the water rights are concerned, we do 21 not think that export pumping to achieve a rate of export 22 takes priority over the question of protection of the water 23 rights, the riparian rights, the water quality rights. We 24 think those are superior rights to the rights of the 25 Bureau. CAPITOL REPORTERS (916) 923-5447 9002 1 MR. O'LAUGHLIN: Okay. Now getting to this 2 Endangered Species Act, this is an important point. We 3 just went through this example a little bit ago, is it your 4 understanding that the Delta Smelt Biological Opinion 5 roughly limits exports from the Delta to a two to one ratio 6 of San Joaquin River flow to exports? 7 MR. HILDEBRAND: Yes, but I explained -- 8 MR. O'LAUGHLIN: Okay. Wait, that's fine. Let me 9 just ask one follow-up question then. 10 So with that explanation in mind, what I don't 11 understand is do you read into the Delta Smelt Biological 12 Opinion a difference between net export for consumption 13 versus exports in general? 14 MR. HILDEBRAND: Export for recirculation has a 15 different affect on the hydrology of the Delta than net 16 export. And as we discussed the other day, a problem we've 17 been having with these biological opinions is that in some 18 instances the biological opinions although they're made by 19 biological experts, is based on their understanding of 20 hydrology which differs from our understanding, DWR's 21 understanding of those same hydraulics. 22 So to the extent that the biological opinion is 23 based on a faulty understanding of hydraulics, it is a 24 faulty biological opinion. And in this instance the 25 hydraulics will be different depending on whether the CAPITOL REPORTERS (916) 923-5447 9003 1 pumping is for net export, or whether it is for 2 recirculation. Therefore, it seems to us perfectly logical 3 to assume that there would have to be a reassessment of 4 that biological opinion. 5 MR. O'LAUGHLIN: Okay. Well, that's the point I was 6 driving at here. What has South Delta Water Agency done to 7 get U.S. Fish and Wildlife to reassess its Delta Smelt 8 Biological Opinion in order to implement this program? 9 MR. HILDEBRAND: Were you here when we cross-examined 10 Matt Vandenberg on his biological opinion for Delta smelt? 11 MR. O'LAUGHLIN: I'll answer the question: Yes, I 12 was. I don't think I'm telling a lie when I say that. 13 Go ahead. 14 MR. HILDEBRAND: Okay. I think that illustrates our 15 problem of biological opinions and our feeling there's a 16 need for reassessment of those biological opinions that are 17 based on a misunderstanding of hydraulics. 18 MR. O'LAUGHLIN: Okay. Now, I understand that and I 19 was here that day, but what have you specifically done with 20 U.S. Fish and Wildlife Service to get them to change their 21 understanding of the hydrology in the Delta so they can 22 change their Delta Smelt Biological Opinion? 23 MR. HILDEBRAND: Hopefully that cross-examination 24 might have triggered something. And I have earlier had 25 some conversations as I said the other day with Mike CAPITOL REPORTERS (916) 923-5447 9004 1 Thabault and Roger Guinee specifically about recirculation. 2 And somebody else objected when I said something like that 3 that it was hearsay, so if you consider that hearsay you 4 can throw it out. 5 But it was my understanding at that time that Mike 6 did most of the speaking for them was skeptical of 7 recirculation, but did not rule it out. He was willing to 8 examine it further. 9 MR. O'LAUGHLIN: Okay. On Page 5, the third 10 paragraph you have a no net loss goal. Do you see that? 11 MR. HILDEBRAND: Yeah. 12 MR. O'LAUGHLIN: That's a goal and not a requirement, 13 correct? 14 MR. HILDEBRAND: It is a goal rather than a 15 requirement, but it is sort of a commitment on the part of 16 the South Delta Water Agency that in promoting the 17 recirculation and drainage management we are not going to 18 advocate a no net loss for the contractors. 19 MR. HERRICK: Excuse me, Alex. I think you said a 20 double negative there. 21 MR. HILDEBRAND: Is that a double negative? 22 MR. HERRICK: Again, please. 23 MR. O'LAUGHLIN: Is it no net loss or -- 24 MR. HILDEBRAND: We will not advocate that there be a 25 net loss for the contractors. CAPITOL REPORTERS (916) 923-5447 9005 1 MR. O'LAUGHLIN: Okay. 2 MR. HILDEBRAND: Now, we feel that by using this 3 backup provision of purchases from contractors that we can 4 do that with our plan and stick to it. 5 MR. O'LAUGHLIN: Okay. Are you aware of in the San 6 Joaquin River Agreement where there is an agreement made 7 that there will be no net loss in the agreement? 8 MR. HILDEBRAND: Because of the agreement, yes. 9 MR. O'LAUGHLIN: Okay. And, in fact, there is an 10 operation plan that has to be implemented every year to 11 ensure that there's no net loss; is that correct? 12 MR. HILDEBRAND: I believe that's right. 13 MR. O'LAUGHLIN: Okay. 14 MR. HILDEBRAND: It's been some time since I've read 15 the agreement. 16 MR. O'LAUGHLIN: Do you have any plans under your 17 recirculation plan for an operation plan to be agreed upon 18 every year so that there is no net loss? 19 MR. HILDEBRAND: It is our understanding with our 20 negotiations with Dan Nelson and others who are involved in 21 this, that you would anticipate that it would be set up in 22 such a way that we would assure there was no net loss. But 23 it was also understood that there are other circumstances 24 other than during the pulse flow where it may be possible 25 to recirculate, but you can't predict them and plan them CAPITOL REPORTERS (916) 923-5447 9006 1 way in advance, you'd have to analyze as you went along. 2 MR. O'LAUGHLIN: Is it your understanding under the 3 San Joaquin River Agreement that export levels are kept at 4 certain levels throughout the month in which the pulse flow 5 is going to be met? 6 MR. HILDEBRAND: Say that again, please. 7 MR. O'LAUGHLIN: Yeah. What is your understanding of 8 the San Joaquin River Agreement in regards to the amount of 9 exports set forth in the plan? 10 MR. HILDEBRAND: I don't recall exactly what the 11 provisions were. 12 MR. O'LAUGHLIN: Has Mr. Dan Nelson from San Luis and 13 Delta-Mendota Water Authority concurred in your 14 recirculation plan? 15 MR. HILDEBRAND: He has assured me in the past that 16 he is supportive of it and that I can rely on that support. 17 MR. O'LAUGHLIN: On Page 5 you state under 18 "Benefits," 19 (Reading): 20 "This method can be used in conjunction with the 21 other methods in order to determine the most 22 efficient and beneficial method of providing 23 fishery flows and holding exports at certain 24 levels." 25 Does your plan have holding exports at certain CAPITOL REPORTERS (916) 923-5447 9007 1 levels during the pulse flow time period? 2 MR. HILDEBRAND: Whatever levels they choose to 3 establish that we can abide by them. 4 MR. O'LAUGHLIN: Okay. One difference between your 5 plan and the San Joaquin River Agreement -- in fact, you 6 actually have the page open -- is the San Joaquin River 7 Agreement sets forth specifically what the exports will be 8 in a given year given the flow conditions that are going to 9 be attained on the San Joaquin River at Vernalis; is that 10 correct? 11 MR. HILDEBRAND: There is a qualification to that. 12 Underneath that little table it says, 13 (Reading): 14 "For circumstances where the limits in this 15 paragraph do not apply, the USBR and CDWR will 16 operate their respective pumping plants in 17 compliance with any applicable provisions of 18 then existing water quality control plans, then 19 existing biological opinions, the 1994 Bay-Delta 20 Accord and any other requirements in effect." 21 So these are sort of illustrative you might say. 22 MR. O'LAUGHLIN: So your understanding is that those 23 export flows given for those target flows are illustrative? 24 MR. HILDEBRAND: I'd have to read more of this to be 25 sure, but I believe that these were associated with the CAPITOL REPORTERS (916) 923-5447 9008 1 planning for the VAMP test, which was to determine whether 2 the export pumping rates really made a difference or 3 whether they didn't. 4 And we don't oppose the VAMP. If the Board wishes 5 to adopt the VAMP flows in lieu of the control plan flows, 6 our plan can do that, too. In fact, we wouldn't have to go 7 down to figures below 3200 as the river agreement does in 8 some kind of years. So the VAMP test could go forward, 9 actually, somewhat better under our scenario. 10 MR. O'LAUGHLIN: Okay. And realizing, however, that 11 exports may change dramatically with your -- 12 MR. HILDEBRAND: Pumping rates, not net exports but 13 pumping rates being changed, yes. 14 MR. O'LAUGHLIN: Page 5, "Purchases from Exports." 15 Do you have any purchases lined up from any exporters or 16 potential sellers? 17 MR. HILDEBRAND: No, and we went over that the other 18 day -- 19 MR. O'LAUGHLIN: Okay. 20 MR. HILDEBRAD: -- that we haven't lined up any. 21 Just as the CVPIA proposes to buy a lot of water and they 22 haven't lined them up and neither has the CalFed, they 23 propose to buy a lot of water and they haven't lined it up. 24 It's just a presumption here that at some price you can get 25 the water. CAPITOL REPORTERS (916) 923-5447 9009 1 MR. O'LAUGHLIN: Okay. 2 MR. HILDEBRAND: And that is questionable under some 3 circumstances. 4 MR. O'LAUGHLIN: Okay. And what circumstances would 5 that be questionable? 6 MR. HILDEBRAND: Well, if you assume that the 7 purchases must stay within the no injury rule, which some 8 of them currently don't, but if they did, there would be a 9 limited amount of water available. 10 MR. O'LAUGHLIN: What -- how would you make 11 purchases -- how would your plan to purchase water work 12 under the Monterey Agreement to purchase water from -- 13 MR. HILDEBRAND: I'm not familiar with the Monterey 14 Agreement. 15 MR. O'LAUGHLIN: Under your proposal, who would 16 purchase the water? 17 MR. HILDEBRAND: I would assume the Bureau would 18 purchase it, because they're the ones that need to mitigate 19 their impact. 20 MR. O'LAUGHLIN: Okay. Just a second, Alex. 21 Do you have any objection to people making water 22 available for meeting the 1995 Water Quality Control Plan 23 and then pumping groundwater to make up for that loss of 24 water? 25 MR. HILDEBRAND: It's difficult to see where the CAPITOL REPORTERS (916) 923-5447 9010 1 groundwater pumping could come from without it impacting 2 summer flows at some later time when you have to replenish 3 that groundwater. 4 MR. O'LAUGHLIN: Page 8 under "Meeting the Vernalis 5 Water Quality Standard," am I to assume by that first 6 sentence, Mr. Hildebrand, 7 (Reading): 8 "We believe that any plan that assumes that the 9 Vernalis standard will not be met is 10 unacceptable, if not illegal." 11 That's rhetoric and not actually your opinion? 12 MR. HILDEBRAND: That's my opinion. 13 MR. O'LAUGHLIN: Okay. What are you aware of that if 14 the standards are not fully implemented makes it illegal 15 for the Board to adopt a plan? 16 MR. HERRICK: Objection. I'm not sure that the 17 statement refers to the Board action being illegal. 18 Perhaps, we can clarify that with another question. 19 MR. O'LAUGHLIN: What I'm getting at here is he says, 20 (Reading): 21 "We believe that any plan that assumes 22 that the Vernalis standard will not be met is 23 unacceptable, if not illegal." 24 Okay. My assumption in reading that is that if 25 the Board adopts a plan that does not fully implement the CAPITOL REPORTERS (916) 923-5447 9011 1 1995 Water Quality Control Plan, your opinion is: That's 2 illegal? 3 MR. HILDEBRAND: I am not a lawyer, but I think it is 4 illegal. 5 MR. O'LAUGHLIN: Okay. 6 MR. HILDEBRAND: And it's hard for me to understand 7 how the Board could adopt a plan, to implement a control 8 plan and then, in effect, revise the plan. It could be 9 done in a triennial review I suppose, but I don't see how 10 the Board can adopt a plan for implementation of a control 11 plan and then not require that the control plan be met. 12 C.O. STUBCHAER: Mr. Hildebrand, would that statement 13 apply in all years, even the '77 year, or -- 14 MR. HILDEBRAND: As I explained earlier there will be 15 years where none -- when it's not met because there isn't 16 enough water in the system. 17 C.O. STUBCHAER: Yes. 18 MR. HILDEBRAND: Then the Board is going to have to 19 grant relaxation, it has done that in the past. But in all 20 years when it can be met it would seem to me that the Board 21 must see that it's met. And I certainly agree there are 22 some years when the Board does have to grant relaxation 23 because the thing becomes physically impossible. 24 C.O. STUBCHAER: You don't have to agree with me, 25 that was a question not a statement. CAPITOL REPORTERS (916) 923-5447 9012 1 Okay. Go ahead, Mr. O'Laughlin. 2 MR. O'LAUGHLIN: Thank you. Let's take alternative 3 number two, for example. It's your understanding in trying 4 to meet the 1995 Water Quality Control Plan under 5 alternative number two that New Melones basically goes dry; 6 is that correct? 7 MR. HILDEBRAND: I'd have to -- I have trouble 8 remembering just exactly what's in each of these 9 alternatives, but -- 10 MR. O'LAUGHLIN: Alt 2 is New Melones all alone. 11 MR. HILDEBRAND: Well, I don't know that it would 12 have to go dry. Since it's the responsibility of the 13 districts they could buy water on the west side to provide 14 the flow, they could cut back on the delivery to their 15 people and use that water to provide flow out of the DMC. 16 There are things they could do, but they're not things that 17 I think are necessary to do. We're trying to look for 18 things that meet all the requirements with the least pain 19 for all the parties. 20 MR. O'LAUGHLIN: Okay. What I'm getting at though is 21 that alternative two doesn't seem to fully implement the 22 1995 Water Quality Control Plan because New Melones goes 23 dry. 24 So would it be your opinion that -- and it 25 doesn't meet the water quality standards either. Would it CAPITOL REPORTERS (916) 923-5447 9013 1 be your opinion that if the Board adopt alternative number 2 two on the San Joaquin River that that would be illegal? 3 MR. HILDEBRAND: I'm not sure the Board condones 4 implementing alternative two in a manner that makes the New 5 Melones go dry. I don't think that alternative precluded 6 the kind of things I just mentioned, but I would have to 7 reread the description of the alternative to be sure of 8 that. 9 MR. O'LAUGHLIN: If I may make a request of the 10 Chair, were you planning to go to 4:30 or 4:00 today? 11 C.O. STUBCHAER: 4:00. 12 MR. O'LAUGHLIN: If I could have time over the 13 evening I could probably come in and greatly shorten the 14 amount of time that I would need to finish Mr. Hildebrand 15 tomorrow morning by going through my notes and 16 consolidating my questions rather than spending my time 17 doing that up here right now. 18 C.O. STUBCHAER: All right. I'm ready to adjourn 19 until 9:00 tomorrow. Anyone object? Okay. We're 20 adjourned until 9:00 a.m. tomorrow. 21 C.O. BROWN: Good call. 22 (The proceedings concluded at 3:54 p.m.) 23 ---oOo--- 24 25 CAPITOL REPORTERS (916) 923-5447 9014 1 REPORTER'S_CERTIFICATE __________ ___________ 2 3 STATE OF CALIFORNIA ) ) ss. 4 COUNTY OF SACRAMENTO ) 5 I, MARY R. GALLAGHER, certify that I was the 6 Official Court Reporter for the proceedings named herein, 7 and that as such reporter I reported in verbatim shorthand 8 writing those proceedings; that I thereafter caused my 9 shorthand writing to be reduced to typewriting, and the 10 pages numbered 8786 through 9014 herein constitute a 11 complete, true and correct record of the proceedings. 12 IN WITNESS WHEREOF, I have subscribed this 13 certificate at Sacramento, California, on this 4th day of 14 February, 1999. 15 16 ________________________________ MARY R. GALLAGHER, CSR #10749 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 9015