STATE WATER RESOURCES CONTROL BOARD PUBLIC HEARING 1998 BAY-DELTA WATER RIGHTS HEARING HELD AT: BONDERSON BUILDING 901 P STREET SACRAMENTO, CALIFORNIA WEDNESDAY, JANUARY 20, 1999 9:00 A.M. Reported by: ESTHER F. WIATRE CSR NO. 1564 CAPITOL REPORTERS (916) 923-5447 1 APPEARANCES BOARD MEMBERS: 2 JAMES STUBCHAER, COHEARING OFFICER 3 JOHN W. BROWN, COHEARING OFFICER MARY JANE FORSTER 4 MARC DEL PIERO 5 STAFF MEMBERS: 6 WALTER PETTIT, EXECUTIVE DIRECTOR VICTORIA WHITNEY, CHIEF BAY-DELTA UNIT 7 THOMAS HOWARD, SUPERVISING ENGINEER 8 COUNSEL: 9 WILLIAM R. ATTWATER, CHIEF COUNSEL BARBARA LEIDIGH 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 PRINCETON CODORA GLENN IRRIGATION DISTRICT, et al.: 3 FROST, DRUP & ATLAS 134 West Sycamore Street 4 Willows, California 95988 BY: J. MARK ATLAS, ESQ. 5 JOINT WATER DISTRICTS: 6 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON: 7 P.O. BOX 1679 Oroville, California 95965 8 BY: WILLIAM H. BABER III, ESQ. 9 CALIFORNIA SPORTFISHING PROTECTION ALLIANCE: 10 ROBERT J. BAIOCCHI P.O. Box 357 11 Quincy, California 12 BELLA VISTA WATER DISTRICT: 13 BRUCE L. BELTON, ESQ. 2525 Park Marina Drive, Suite 102 14 Redding, California 96001 15 WESTLANDS WATER DISTRICT: 16 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 400 Capitol Mall, 27th Floor 17 Sacramento, California 95814 BY: THOMAS W. BIRMINGHAM, ESQ. 18 and AMELIA MINABERRIGARAI, ESQ. 19 THE BAY INSTITUTE OF SAN FRANCISCO: 20 GARY BOBKER 21 55 Shaver Street, Suite 330 San Rafael, California 94901 22 CITY OF ANTIOCH, et al.: 23 FREDERICK BOLD, JR., ESQ. 24 1201 California Street, Suite 1303 San Francisco, California 94109 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 LEAGUE OF WOMEN VOTERS: 3 ROBERTA BORGONOVO 2480 Union Street 4 San Francisco, California 94123 5 UNITED STATES DEPARTMENT OF THE INTERIOR: 6 OFFICE OF THE SOLICITOR 2800 Cottage Way, Room E1712 7 Sacramento, California 95825 BY: ALF W. BRANDT, ESQ. 8 CALIFORNIA URBAN WATER AGENCIES: 9 BYRON M. BUCK 10 455 Capitol Mall, Suite 705 Sacramento, California 95814 11 RANCHO MURIETA COMMUNITY SERVICES DISTRICT: 12 MCDONOUGH, HOLLAND & ALLEN 13 555 Capitol Mall, 9th Floor Sacramento, California 95814 14 BY: VIRGINIA A. CAHILL, ESQ. 15 CALIFORNIA DEPARTMENT OF FISH AND GAME: 16 OFFICE OF ATTORNEY GENERAL 1300 I Street, Suite 1101 17 Sacramento, California 95814 BY: MATTHEW CAMPBELL, ESQ. 18 NATURAL RESOURCES DEFENSE COUNCIL: 19 HAMILTON CANDEE, ESQ. 20 71 Stevenson Street San Francisco, California 94105 21 ARVIN-EDISON WATER STORAGE DISTRICT, et al.: 22 DOOLEY HERR & WILLIAMS 23 3500 West Mineral King Avenue, Suite C Visalia, California 93291 24 BY: DANIEL M. DOOLEY, ESQ. 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 SACRAMENTO MUNICIPAL UTILITY DISTRICT: 3 LESLIE A. DUNSWORTH, ESQ. 6201 S Street 4 Sacramento, California 95817 5 SOUTH SAN JOAQUIN IRRIGATION DISTRICT, et al.: 6 BRAY, GEIGER, RUDQUIST & NUSS 311 East Main Street, 4th Floor 7 Stockton, California 95202 BY: STEVEN P. EMRICK, ESQ. 8 EAST BAY MUNICIPAL UTILITY DISTRICT: 9 EBMUD OFFICE OF GENERAL COUNSEL 10 375 Eleventh Street Oakland, California 94623 11 BY: FRED S. ETHERIDGE, ESQ. 12 GOLDEN GATE AUDUBON SOCIETY: 13 ARTHUR FEINSTEIN 2530 San Pablo Avenue, Suite G 14 Berkeley, California 94702 15 CONAWAY CONSERVANCY GROUP: 16 UREMOVIC & FELGER P.O. Box 5654 17 Fresno, California 93755 BY: WARREN P. FELGER, ESQ. 18 THOMES CREEK WATER ASSOCIATION: 19 THOMES CREEK WATERSHED ASSOCIATION 20 P.O. Box 2365 Flournoy, California 96029 21 BY: LOIS FLYNNE 22 COURT APPOINTED REPS OF WESTLANDS WD AREA 1, et al.: 23 LAW OFFICES OF SMILAND & KHACHIGIAN 601 West Fifth Street, Seventh Floor 24 Los Angeles, California 90075 BY: CHRISTOPHER G. FOSTER, ESQ. 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 CITY AND COUNTY OF SAN FRANCISCO: 3 OFFICE OF THE CITY ATTORNEY 1390 Market Street, Sixth Floor 4 San Francisco, California 94102 BY: DONN W. FURMAN, ESQ. 5 CAMP FAR WEST IRRIGATION DISTRICT, et al.: 6 DANIEL F. GALLERY, ESQ. 7 926 J Street, Suite 505 Sacramento, California 95814 8 BOSTON RANCH COMPANY, et al.: 9 J.B. BOSWELL COMPANY 10 101 West Walnut Street Pasadena, California 91103 11 BY: EDWARD G. GIERMANN 12 SAN JOAQUIN RIVER GROUP AUTHORITY, et al.: 13 GRIFFTH, MASUDA & GODWIN 517 East Olive Street 14 Turlock, California 95381 BY: ARTHUR F. GODWIN, ESQ. 15 NORTHERN CALIFORNIA WATER ASSOCIATION: 16 RICHARD GOLB 17 455 Capitol Mall, Suite 335 Sacramento, California 95814 18 PLACER COUNTY WATER AGENCY, et al.: 19 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 20 400 Capitol Mall, 27th Floor Sacramento, California 95814 21 BY: JANET GOLDSMITH, ESQ. 22 ENVIRONMENTAL DEFENSE FUND: 23 DANIEL SUYEYASU, ESQ. and 24 THOMAS J. GRAFF, ESQ. 5655 College Avenue, Suite 304 25 Oakland, California 94618 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 CALAVERAS COUNTY WATER DISTRICT: 3 SIMON GRANVILLE P.O. Box 846 4 San Andreas, California 95249 5 CHOWCHILLA WATER DISTRICT, et al.: 6 GREEN, GREEN & RIGBY P.O. Box 1019 7 Madera, California 93639 BY: DENSLOW GREEN, ESQ. 8 CALIFORNIA FARM BUREAU FEDERATION: 9 DAVID J. GUY, ESQ. 10 2300 River Plaza Drive Sacramento, California 95833 11 SANTA CLARA VALLEY WATER DISTRICT: 12 MORRISON & FORESTER 13 755 Page Mill Road Palo Alto, California 94303 14 BY: KEVIN T. HAROFF, ESQ. 15 CITY OF SHASTA LAKE: 16 ALAN N. HARVEY P.O. Box 777 17 Shasta Lake, California 96019 18 COUNTY OF STANISLAUS: 19 MICHAEL G. HEATON, ESQ. 926 J Street 20 Sacramento, California 95814 21 GORRILL LAND COMPANY: 22 GORRILL LAND COMPANY P.O. Box 427 23 Durham, California 95938 BY: DON HEFFREN 24 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 SOUTH DELTA WATER AGENCY: 3 JOHN HERRICK, ESQ. 3031 West March Lane, Suite 332 East 4 Stockton, California 95267 5 COUNTY OF GLENN: 6 NORMAN Y. HERRING 525 West Sycamore Street 7 Willows, California 95988 8 REGIONAL COUNCIL OF RURAL COUNTIES: 9 MICHAEL B. JACKSON, ESQ. 1020 Twelfth Street, Suite 400 10 Sacramento, California 95814 11 DEER CREEK WATERSHED CONSERVANCY: 12 JULIE KELLY P.O. Box 307 13 Vina, California 96092 14 DELTA TRIBUTARY AGENCIES COMMITTEE: 15 MODESTO IRRIGATION DISTRICT P.O. Box 4060 16 Modesto, California 95352 BY: BILL KETSCHER 17 SAVE THE SAN FRANCISCO BAY ASSOCIATION: 18 SAVE THE BAY 19 1736 Franklin Street Oakland, California 94612 20 BY: CYNTHIA L. KOEHLER, ESQ. 21 BATTLE CREEK WATERSHED LANDOWNERS: 22 BATTLE CREEK WATERSHED CONSERVANCY P.O. Box 606 23 Manton, California 96059 24 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 BUTTE SINK WATERFOWL ASSOCIATION, et al.: 3 MARTHA H. LENNIHAN, ESQ. 455 Capitol Mall, Suite 300 4 Sacramento, California 95814 5 CITY OF YUBA CITY: 6 WILLIAM P. LEWIS 1201 Civic Center Drive 7 Yuba City 95993 8 BROWNS VALLEY IRRIGATION DISTRICT, et al.: 9 BARTKEWICZ, KRONICK & SHANAHAN 1011 22nd Street, Suite 100 10 Sacramento, California 95816 BY: ALAN B. LILLY, ESQ. 11 CONTRA COSTA WATER DISTRICT: 12 BOLD, POLISNER, MADDOW, NELSON & JUDSON 13 500 Ygnacio Valley Road, Suite 325 Walnut Creek, California 94596 14 BY: ROBERT B. MADDOW, ESQ. 15 GRASSLAND WATER DISTRICT: 16 DON MARCIOCHI 22759 South Mercey Springs Road 17 Los Banos, California 93635 18 SAN LUIS CANAL COMPANY: 19 FLANNIGAN, MASON, ROBBINS & GNASS 3351 North M Street, Suite 100 20 Merced, California 95344 BY: MICHAEL L. MASON, ESQ. 21 STONY CREEK BUSINESS AND LAND OWNERS COALITION: 22 R.W. MCCOMAS 23 4150 County Road K Orland, California 95963 24 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 TRI-DAM POWER AUTHORITY: 3 TUOLUMNE UTILITIES DISTRICT P.O. Box 3728 4 Sonora, California 95730 BY: TIM MCCULLOUGH 5 DELANO-EARLIMART IRRIGATION DISTRICT, et al.: 6 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 7 P.O. Box 1679 Oroville, California 95965 8 BY: JEFFREY A. MEITH, ESQ. 9 HUMANE FARMING ASSOCIATION: 10 BRADLEY S. MILLER 1550 California Street, Suite 6 11 San Francisco, California 94109 12 CORDUA IRRIGATION DISTRICT, et al.: 13 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 14 Oroville, California 95965 BY: PAUL R. MINASIAN, ESQ. 15 EL DORADO COUNTY WATER AGENCY: 16 DE CUIR & SOMACH 17 400 Capitol Mall, Suite 1900 Sacramento, California 95814 18 BY: DONALD B. MOONEY, ESQ. 19 GLENN COUNTY FARM BUREAU: 20 STEVE MORA 501 Walker Street 21 Orland, California 95963 22 MODESTO IRRIGATION DISTRICT: 23 JOEL MOSKOWITZ P.O. Box 4060 24 Modesto, California 95352 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 PACIFIC GAS & ELECTRIC: 3 RICHARD H. MOSS, ESQ. P.O. Box 7442 4 San Francisco, California 94120 5 CENTRAL DELTA WATER AGENCY, et al.: 6 NOMELLINI, GRILLI & MCDANIEL P.O. Box 1461 7 Stockton, California 95201 BY: DANTE JOHN NOMELLINI, ESQ. 8 and DANTE JOHN NOMELLINI, JR., ESQ. 9 TULARE LAKE BASIN WATER STORAGE UNIT: 10 MICHAEL NORDSTROM 11 1100 Whitney Avenue Corcoran, California 93212 12 AKIN RANCH, et al.: 13 DOWNEY, BRAND, SEYMOUR & ROHWER 14 555 Capitol Mall, 10th Floor Sacramento, California 95814 15 BY: KEVIN M. O'BRIEN, ESQ. 16 OAKDALE IRRIGATION DISTRICT: 17 O'LAUGHLIN & PARIS 870 Manzanita Court, Suite B 18 Chico, California 95926 BY: TIM O'LAUGHLIN, ESQ. 19 SIERRA CLUB: 20 JENNA OLSEN 21 85 Second Street, 2nd Floor San Francisco, California 94105 22 YOLO COUNTY BOARD OF SUPERVISORS: 23 LYNNEL POLLOCK 24 625 Court Street Woodland, California 95695 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 PATRICK PORGANS AND ASSOCIATES: 3 PATRICK PORGANS P.O. Box 60940 4 Sacramento, California 95860 5 BROADVIEW WATER DISTRICT, et al.: 6 DIANE RATHMANN 7 FRIENDS OF THE RIVER: 8 BETSY REIFSNIDER 128 J Street, 2nd Floor 9 Sacramento, California 95814 10 MERCED IRRIGATION DISTRICT: 11 FLANAGAN, MASON, ROBBINS & GNASS P.O. Box 2067 12 Merced, California 95344 BY: KENNETH M. ROBBINS, ESQ. 13 CENTRAL SAN JOAQUIN WATER CONSERVATION DISTRICT: 14 REID W. ROBERTS, ESQ. 15 311 East Main Street, Suite 202 Stockton, California 95202 16 METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA: 17 JAMES F. ROBERTS 18 P.O. Box 54153 Los Angeles, California 90054 19 SACRAMENTO AREA WATER FORUM: 20 CITY OF SACRAMENTO 21 980 9th Street, 10th Floor Sacramento, California 95814 22 BY: JOSEPH ROBINSON, ESQ. 23 24 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 TUOLUMNE RIVER PRESERVATION TRUST: 3 NATURAL HERITAGE INSTITUTE 114 Sansome Street, Suite 1200 4 San Francisco, California 94194 BY: RICHARD ROOS-COLLINS, ESQ. 5 CALIFORNIA DEPARTMENT OF WATER RESOURCES: 6 DAVID SANDINO, ESQ. 7 CATHY CROTHERS, ESQ. P.O. Box 942836 8 Sacramento, California 94236 9 FRIANT WATER USERS AUTHORITY: 10 GARY W. SAWYERS, ESQ. 575 East Alluvial, Suite 101 11 Fresno, California 93720 12 KERN COUNTY WATER AGENCY: 13 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 400 Capitol Mall, 27th Floor 14 Sacramento, California 95814 BY: CLIFFORD W. SCHULZ, ESQ. 15 SAN JOAQUIN RIVER EXCHANGE CONTRACTORS: 16 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON: 17 P.O. Box 1679 Oroville, California 95965 18 BY: MICHAEL V. SEXTON, ESQ. 19 SAN JOAQUIN COUNTY: 20 NEUMILLER & BEARDSLEE P.O. Box 20 21 Stockton, California 95203 BY: THOMAS J. SHEPHARD, SR., ESQ. 22 CITY OF STOCKTON: 23 DE CUIR & SOMACH 24 400 Capitol Mall, Suite 1900 Sacramento, California 95814 25 BY: PAUL S. SIMMONS, ESQ. CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 ORLAND UNIT WATER USERS' ASSOCIATION: 3 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 4 Oroville, California 95965 BY: M. ANTHONY SOARES, ESQ. 5 GLENN-COLUSA IRRIGATION DISTRICT: 6 DE CUIR & SOMACH 7 400 Capitol Mall, Suite 1900 Sacramento, California 95814 8 BY: STUART L. SOMACH, ESQ. 9 NORTH SAN JOAQUIN WATER CONSERVATION DISTRICT: 10 JAMES F. SORENSEN CONSULTING CIVIL ENGINEER, INC. 209 South Locust Street 11 Visalia, California 93279 BY: JAMES F. SORENSEN 12 PARADISE IRRIGATION DISTRICT: 13 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 14 P.O. Box 1679 Oroville, California 95695 15 BY: WILLIAM H. SPRUANCE, ESQ. 16 COUNTY OF COLUSA: 17 DONALD F. STANTON, ESQ. 1213 Market Street 18 Colusa, California 95932 19 COUNTY OF TRINITY: 20 COUNTY OF TRINITY - NATURAL RESOURCES P.O. Box 156 21 Hayfork, California 96041 BY: TOM STOKELY 22 CITY OF REDDING: 23 JEFFERY J. SWANSON, ESQ. 24 2515 Park Marina Drive, Suite 102 Redding, California 96001 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 TULARE IRRIGATION DISTRICT: 3 TEHAMA COUNTY RESOURCE CONSERVATION DISTRICT 2 Sutter Street, Suite D 4 Red Bluff, California 96080 BY: ERNEST E. WHITE 5 STATE WATER CONTRACTORS: 6 BEST BEST & KREIGER 7 P.O. Box 1028 Riverside, California 92502 8 BY: ERIC GARNER, ESQ. 9 COUNTY OF TEHAMA, et al.: 10 COUNTY OF TEHAMA BOARD OF SUPERVISORS: P.O. Box 250 11 Red Bluff, California 96080 BY: CHARLES H. WILLARD 12 MOUNTAIN COUNTIES WATER RESOURCES ASSOCIATION: 13 CHRISTOPHER D. WILLIAMS 14 P.O. Box 667 San Andreas, California 95249 15 JACKSON VALLEY IRRIGATION DISTRICT: 16 HENRY WILLY 17 6755 Lake Amador Drive Ione, California 95640 18 SOLANO COUNTY WATER AGENCY, et al.: 19 HERUM, CRABTREE, DYER, ZOLEZZI & TERPSTRA 20 2291 West March Lane, S.B.100 Stockton, California 95207 21 BY: JEANNE M. ZOLEZZI, ESQ. 22 ---oOo--- 23 24 25 CAPITOL REPORTERS (916) 923-5447 1 INDEX PAGE 2 RESUMPTION OF HEARING: 9032 AFTERNOON SESSION: 9143 3 POLICY STATEMENT: 4 TIMOTHY MCCULLOUGH 9032 5 SOUTH DELTA WATER AGENCY: CONTINUED CROSS-EXAMINATION: 6 BY MR. O'LAUGHLIN 9036 BY BOARD MEMBERS 9048 7 REDIRECT EXAMINATION: BY MR. HERRICK 9067 8 RECROSS-EXAMINATION: BY MR. CAMPBELL 9123 9 BY MR. O'LAUGHLIN 9129 BY BIRMINGHAM 9163 10 CENTRAL DELTA PARTIES: 11 POLICY STATEMENT: BY MR. NOMELLINI 9209 12 THOMAS ZUCKERMAN DIRECTION EXAMINATION: 13 BY MR. NOMELLINI 9219 CROSS-EXAMINATION 14 BY MR. CAMPBELL 9221 BY MR. BIRMINGHAM 9222 15 CENTRAL SAN JOAQUIN WATER CONSERVATION DISTRICT: 16 GRANT THOMPSON DIRECT EXAMINATION: 17 BY MR. ROBERTS 9247 18 19 ---oOo--- 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 1 SACRAMENTO, CALIFORNIA 2 JANUARY 20, 1999 3 ---oOo--- 4 C.O. STUBCHAER: Morning. Call the hearing back to 5 order. 6 Before we resume the cross-examination of Mr. 7 Hildebrand, I have an announcement, and one party will make 8 a brief statement. 9 Walt Pettit's mother died and the services are at 1:00 10 today. Mary Jane Forster will be representing the Board at 11 the services. 12 Mr. Gallery. 13 MR. GALLERY: Thank you, Mr. Chairman. 14 Tuolumne Utilities District has decided not to put its 15 testimony and evidence in in Phase II-A. Mr. McCullough 16 from Tuolumne Utilities District is here to make a brief 17 statement to that effect, if we can do that now. 18 C.O. STUBCHAER: Please do. 19 MR. MCCULLOUGH: Good morning. 20 C.O. STUBCHAER: Good morning. Please state your name 21 and address for the record. 22 MR. MCCULLOUGH: My name is Tim McCullough. I am the 23 general manager of Tuolumne Utilities District. To begin 24 with, I would like to thank you for this opportunity this 25 morning. I realize that you are squeezing space in to let CAPITOL REPORTERS (916) 923-5447 9032 1 us make a statement. It is greatly appreciated. 2 TUD wishes, subject to the Board's permission, to not 3 present its testimony and other evidence in Phase II-A, but 4 without prejudice to the right to present it at a later 5 time. TUD's proposed testimony is in support of its 6 position that is in Title 2A, water supply contract with the 7 Bureau of Reclamation from New Melones Reservoir. TUD is 8 particularly desirous of securing such a contract which will 9 supply water in all years. 10 We are now in negotiations with the Bureau of 11 Reclamation for such a contract. After extended discussions 12 with other parties about the appropriateness of presenting 13 this evidence as part of Phase II-A issues, we are agreeing 14 with them to not present the testimony and other evidence in 15 this phase without prejudice to present it at a later time, 16 such as Phase VIII or perhaps a future complaint or other 17 Board proceeding. 18 Our decision is based in part upon the assurances given 19 to TUD by members of the San Joaquin River Group to this 20 proceeding that they will provide support for our efforts to 21 obtain the desired contract with the Bureau. We understand 22 that other parties here will verify this understanding. 23 Thank you. 24 C.O. STUBCHAER: Thank you, Mr. McCullough. 25 Anyone else wish to address this issue? CAPITOL REPORTERS (916) 923-5447 9033 1 Mr. O'Laughlin. 2 MR. O'LAUGHLIN: Good morning. Actually, I am pleased 3 to step to the podium this morning and second this move by 4 the Tuolumne Utilities District. The San Joaquin River 5 Group Authority has been working with TUD and the United 6 States Bureau of Reclamation for the past eight months on 7 this matter, and hopefully we will get this matter resolved. 8 I would like to read a brief statement into the record, 9 which is the official position of the San Joaquin River 10 Group Authority. 11 We understand that TUD is in need of a water supply 12 contract from New Melones. The San Joaquin River Group 13 Authority intends to support TUD's efforts to obtain a water 14 supply contract with the United States Bureau of Reclamation 15 to satisfy Tuolumne Utilities District's needs. San Joaquin 16 River Group Authority has been working with TUD to assist it 17 in obtaining a water supply contract as expeditiously as 18 possible from the United States Bureau of Reclamation. We 19 will continue to work with TUD and the United States Bureau 20 of Reclamation to assist TUD in obtaining a water supply 21 contract. 22 Thank you very much. 23 C.O. STUBCHAER: Thank you, Mr. O'Laughlin. 24 Mr. Brandt. 25 MR. BRANDT: Mr. Chairman, the Bureau of Reclamation CAPITOL REPORTERS (916) 923-5447 9034 1 has committed to negotiate a contract with TUD and has begun 2 that process, and we expect to have an announcement in the 3 Federal Register within the next week or two announcing the 4 formal beginning of negotiation of contract as required by 5 our negotiation process. 6 We look forward to working with TUD, and we look 7 forward to trying to do our best to resolve the issues that 8 they raise as part of these negotiations. That is the 9 proper place for us to be resolving those issues. We want 10 to thank TUD for doing this at this time. It makes a lot of 11 sense, and go, TUD. 12 C.O. STUBCHAER: Thank you, all. Take some of the 13 burden off us. Appreciate it. 14 Anything else? 15 C.O. BROWN: Nice seeing you, Tim. 16 C.O. STUBCHAER: Mr. O'Laughlin, ready to resume 17 cross-examination? You want to sit down? 18 MR. O'LAUGHLIN: No, that's fine. Thank you very 19 much. Unfortunately the burden returns all too quickly 20 after the highlight of the morning, I believe. 21 C.O. BROWN: That is a bad sign. 22 C.O. STUBCHAER: He told us last night he was going to 23 have streamlined -- 24 MR. O'LAUGHLIN: I've been a very good boy over the 25 evening. I have streamlined. I'm going to unfortunately -- CAPITOL REPORTERS (916) 923-5447 9035 1 I told Mr. Hildebrand and I will tell the Board and the 2 people in the audience. It is cleanup time, so I am going 3 to be bouncing a little bit all over the place. It is not 4 going to be all in one area, trying to deal all with one 5 issue, if you bear with me. I believe it is no more than a 6 half hour, 45 minutes, and I should complete it this 7 morning. 8 ---oOo--- 9 CONTINUED CROSS-EXAMINATION OF SOUTH DELTA WATER AGENCY 10 BY SAN JOAQUIN RIVER GROUP AUTHORITY 11 BY MR. O'LAUGHLIN 12 MR. O'LAUGHLIN: Good morning once again, Alex. How 13 are you? 14 MR. HILDEBRAND: Very good, Tim. 15 MR. O'LAUGHLIN: Are you aware that the San Joaqin 16 River Group Authority testimony shows a decrease in the 17 exceedance of water quality objectives at Vernalis due to 18 the modeling done by Mr. Steiner? 19 MR. HILDEBRAND: It is a decrease as compared to a base 20 case, which assumes that the Vernalis salinity standard 21 would be violated. 22 MR. O'LAUGHLIN: Do you agree or disagree that the San 23 Joaquin River Agreement will not meet water quality 24 objectives in times when they otherwise would not be met, 25 such as in the October months? CAPITOL REPORTERS (916) 923-5447 9036 1 MR. HILDEBRAND: Would you state that again, please? 2 MR. O'LAUGHLIN: Sure. 3 Do you believe the San Joaquin River Agreement will 4 meet flow objectives -- water quality objectives at Vernalis 5 in months of October when they otherwise would be exceeded? 6 MR. HILDEBRAND: To the extent that there are fish 7 flows in October that can substitute for water quality flows 8 that is true, but those fish derive from shifting water from 9 other periods of time, and those other times make it worse. 10 MR. O'LAUGHLIN: Are you aware in the modeling that was 11 done for the San Joaquin River Agreement that the members 12 that provided the water indicated little or no summertime 13 change in operation as expected to occur when it was modeled 14 accordingly? 15 MR. HILDEBRAND: That was alleged in the modeling. 16 However, Mr. Steiner's model failed to do a couple things. 17 One was that it did not address the long-term consequence of 18 drawing down reservoir to supply fish flows. Whereas, at 19 some point in time, whether it is a drawdown reservoir or 20 whether it is a drawdown of groundwater, it has to be 21 replenished. At that time it be would be a detriment to 22 downstream flow as well. 23 MR. O'LAUGHLIN: Aren't you aware, though, in Mr. 24 Steiner's testimony in the graph that he presented in 25 regards to long-term consequences to reservoir operation CAPITOL REPORTERS (916) 923-5447 9037 1 that what actually happens is in above normal and wet years, 2 in March and in February, there is a refill that occurs in 3 those months under the modeling that was done? 4 MR. HILDEBRAND: The modeling did not address long-term 5 consequences of that refill. 6 MR. O'LAUGHLIN: Let's assume for the sake of this 7 discussion that Mr. Steiner's modeling shows that refill is 8 occurring within February and March of above normal and wet 9 years. What impact does that have to South Delta Water 10 Agency and its water users? 11 MR. HILDEBRAND: Except in those years when a refill is 12 provided by water that would otherwise be spilled for flood 13 control, it is taking water out of the system which 14 ultimately would come down in the absence of that 15 operation. 16 MR. O'LAUGHLIN: If it is in February, my 17 understanding, according to your testimony earlier, is in 18 above normal and wet years you are really not farming in 19 February. If you are, you are not really using much water. 20 So what is the impact to South Delta in February? 21 MR. HILDEBRAND: The question is whether it complies 22 with the Vernalis salinity standard in all months. And if 23 you -- we might not need it in that year, but we might need 24 it in the subsequent year which might be a drought year, for 25 all we now. CAPITOL REPORTERS (916) 923-5447 9038 1 MR. O'LAUGHLIN: If it was going to be flood control 2 release, if it was going to happen as flood waters, you 3 wouldn't have that water available to you in the following 4 years, anyway, would you? 5 MR. HILDEBRAND: We agree that when it is refiled with 6 flood water, doesn't damage us. 7 MR. O'LAUGHLIN: Let's say that it is now March and the 8 reservoirs are refilling because of these -- the ability to 9 make water available under the San Joaquin River Agreement. 10 What impact does that have to the South Delta in March? Is 11 that the same response? 12 MR. HILDEBRAND: Same response. If I may expand on 13 that. Let me explain. 14 MR. O'LAUGHLIN: Go right ahead. 15 MR. HILDEBRAND: Another problem we had with the model 16 which was discussed at the time that Mr. Steiner made his 17 presentation is that it is based on a forecasted flow 18 salinity ratio at Vernalis. Whereas, as we discussed the 19 other day, it is not, in fact, a predictable salinity ratio 20 because it varies with the amount of water taken out of the 21 tributary anytime and at what time it is taken out. It 22 varies with the drainage into the river from the 23 agricultural and wetland drainage from the west side and 24 other factors. 25 So that, as I explained, one of the reasons we had to, CAPITOL REPORTERS (916) 923-5447 9039 1 in order to make our analysis, switch to the SJRIO Model, 2 which doesn't make that assumption. 3 MR. O'LAUGHLIN: When the State Water Resources Control 4 Board did their Draft EIR, did they use the SJRIO Model to 5 understand the relationship between salinity and flow at 6 Vernalis, or did they use some other model? 7 MR. HILDEBRAND: They used DWR's model, which has the 8 same defect as Mr. Steiner's model. 9 MR. O'LAUGHLIN: Let's turn to Friant for just a 10 second. One of the places that you stated earlier you would 11 look for to get water would be the Friant unit; is that 12 correct? 13 MR. HILDEBRAND: The recipients of water from the 14 Friant unit, not the Friant Water Users Associate, or 15 whatever it is called. 16 MR. O'LAUGHLIN: Where would you take water from if you 17 took it from Friant or asked to buy water from Friant? 18 MR. HILDEBRAND: Some party who is entitled to water 19 from Friant who would sell that water and then by an 20 exchange could make it available for release to the river 21 from the DMC down Newman Wasteway. 22 MR. O'LAUGHLIN: Are you aware of in the Friant unit 23 the difference between Class I and Class II water? 24 MR. HILDEBRAND: Yes. 25 MR. O'LAUGHLIN: Are you aware that the Friant unit is CAPITOL REPORTERS (916) 923-5447 9040 1 overcommitted in regards to its water supply needs? 2 MR. HILDEBRAND: In terms of Class II water, yes. 3 MR. O'LAUGHLIN: If water supplies are already short in 4 the Friant unit and you're looking at selling water outside 5 of Friant unit, have you ascertained what impact that would 6 have on groundwater in the Friant unit? 7 MR. HILDEBRAND: Only in the same sense as if looked at 8 a similar problem in the event that water purchased on the 9 tributaries. 10 MR. O'LAUGHLIN: Let's go in the Friant unit. In 11 critically dry and dry years is Class II water normally 12 available in the Friant years? 13 MR. HILDEBRAND: Not in those years. 14 MR. O'LAUGHLIN: Those are the years we may need water 15 in order to do the recirculation; is that correct? 16 MR. HILDEBRAND: Yes. Well, not exclusively in those 17 years. It would be true in those years. 18 MR. O'LAUGHLIN: So we are going to find someone in the 19 Friant unit with a Class I water supply to sell a portion of 20 that supply and then wheel it with the State Water Project 21 contractors? 22 MR. HILDEBRAND: That is a feasible thing to do. 23 MR. O'LAUGHLIN: Have you tried to ascertain if any 24 potential party within the Friant unit would have water 25 available? CAPITOL REPORTERS (916) 923-5447 9041 1 MR. HILDEBRAND: No. As we discussed before, we 2 haven't done that any more than the CalFed and CVPIA have 3 done it in their plans to purchase water. 4 MR. O'LAUGHLIN: I notice that you put Arvin-Edison as 5 an example. Are you aware that Arvin-Edison is only a Class 6 II water supply transfer, if and when it would take place? 7 MR. HILDEBRAND: They cited that merely as an 8 indication that there are people willing to sell water. 9 Whether it was Class I water or Class II water in either 10 case, I think at some price people are going to be willing 11 to sell. 12 MR. O'LAUGHLIN: Are you proposing in your 13 recirculation plan that at any time the Friant unit would 14 release water down the San Joaquin River in order to get to 15 Vernalis? 16 MR. HILDEBRAND: No. 17 MR. O'LAUGHLIN: Why aren't you proposing that? 18 MR. HILDEBRAND: Because in order to have compatible 19 negotiations with the contracting parties, we pledge that we 20 would only recirculate in a manner that did take water away 21 from contractors. There would be no net loss either to them 22 or to us. So we've stuck to that commitment. Now, that 23 doesn't mean you couldn't do that, but we haven't proposed 24 that. 25 MR. O'LAUGHLIN: In the SJRIO Model what amount of CAPITOL REPORTERS (916) 923-5447 9042 1 water, if you know -- I will realize this is getting to an 2 assumption, and I thought -- I don't want to delve into the 3 model with great detail, but I do just have one question. 4 In regards to the SJRIO Model when the model was being 5 run, what was the assumption being used for New Melones 6 releases during the pulse flow? 7 MR. HILDEBRAND: As I recall, it was 1,500 cfs during 8 the pulse flow. 9 MR. O'LAUGHLIN: Have you looked at modeling that was 10 done for the San Joaquin River Agreement? 11 MR. HILDEBRAND: Yes. 12 MR. O'LAUGHLIN: Does the San Joaquin River Agreement 13 also have a flow limitation from New Melones during the 14 pulse flow of 1500 cfs? 15 MR. HILDEBRAND: That is my recollection. 16 MR. O'LAUGHLIN: If we compared the two models for the 17 pulse flow period, basically both our recirculation proposal 18 and the San Joaquin River Agreement would back up the same 19 amount of water into New Melones during the pulse flow 20 period; is that correct? 21 MR. HILDEBRAND: What do you mean by "backing up 22 water"? 23 MR. O'LAUGHLIN: In other words, if we have 1,500 cfs 24 limitation within the San Joaquin River Agreement, and your 25 recirculation has a 1,500 cfs limitation on it, then no CAPITOL REPORTERS (916) 923-5447 9043 1 model will exceed that. So the same amount of water being 2 released from New Melones would keep the same amount of 3 water in storage; is that correct? 4 MR. HILDEBRAND: I still don't understand what you 5 mean by interrelation to recirculation. But the amount of 6 water taken out of storage during the pulse flow for the 7 purpose of the pulse flow would be the same 1,500 cfs under 8 either plan. 9 MR. O'LAUGHLIN: Now the 2,000 acre-feet under the 10 SJRIO that is saved and may be available to the Bureau on an 11 average basis, is that in regards to the flow objective or 12 to the water quality objective at Vernalis? 13 MR. HILDEBRAND: That was merely the water quality 14 objective, and that was an average including all years. 15 Whereas, in the years, normal year, it was, I believe, 16 12,000. 17 MR. O'LAUGHLIN: When the United States Bureau of 18 Reclamation adopted the Interim Operation Plan, did you sue 19 the United States Bureau of Reclamation on the adoption of 20 the Interim Operation Plan? 21 MR. HILDEBRAND: Not at that time, no. 22 MR. O'LAUGHLIN: Have you brought a lawsuit since? 23 MR. HILDEBRAND: Not as yet. 24 MR. O'LAUGHLIN: Are you planning on bringing one? 25 MR. HILDEBRAND: That depends in part on the outcome of CAPITOL REPORTERS (916) 923-5447 9044 1 these hearings. 2 MR. O'LAUGHLIN: Have you -- you state on Page 8 of 3 your testimony that subsequent to the passage of CVPIA, 4 the Bureau changed its New Melones operation to emphasize 5 fishery flows. This adversely affects the ability to meet 6 water quality obligations as well as the area of origin 7 contractors of New Melones water. We believe this change in 8 emphasis formerly instituted through the interim operations 9 is a violation of the Bureau's New Melones permits. 10 Have you brought a complaint in front of State Water 11 Resources Control Board that the United States Bureau of 12 Reclamation has violated its permit conditions at New 13 Melones by adopting the Interim Operation Plan? 14 MR. HILDEBRAND: We have complained in the course of 15 these hearings. Mr. Lowell Ploss confirmed our 16 understanding of what they've done in these hearings. What 17 we do further depends on the outcome of the hearings. 18 MR. O'LAUGHLIN: Is it your belief, then, under the New 19 Melones permits that it prioritizes water quality before 20 other uses from New Melones? 21 MR. HILDEBRAND: A New Melones permit requires that 22 they maintain or meet the water quality standard at 23 Vernalis. It doesn't have any qualifications relative to 24 the use of water for other purposes. 25 MR. O'LAUGHLIN: Have you sued the United States Bureau CAPITOL REPORTERS (916) 923-5447 9045 1 of Reclamation for its interpretation and application of the 2 CVPIA to New Melones? 3 MR. HILDEBRAND: Again, same response. 4 MR. O'LAUGHLIN: You haven't? 5 MR. HILDEBRAND: No. We have not, as yet. 6 MR. O'LAUGHLIN: Now, I was -- 7 MR. HILDEBRAND: To amplify that. Of course, we have 8 our underlying suit which was brought way back in 1982, I 9 think it was, which has been tolled, but which does address 10 the impact of adverse impacts of the CVP upon our water 11 supply. So that we can revive that suit whenever we 12 choose. 13 MR. O'LAUGHLIN: Page 9 of your testimony, the last 14 paragraph before Comparison of Alternatives. It says here 15 that you're proposing an alternative method to adopt an 16 amended flow Alternative Number 5. 17 Can you tell me what you mean by that? 18 MR. HILDEBRAND: Can you show me on the page where it 19 refers to Number 5? 20 MR. O'LAUGHLIN: Alternative method. 21 MR. HILDEBRAND: This has to do with the heading which 22 refers to maintaining adequate flow for riparian and public 23 trust needs. This paragraph merely says what would happen 24 if the Board decided certain things. 25 MR. O'LAUGHLIN: So this is an if. You are not CAPITOL REPORTERS (916) 923-5447 9046 1 actually recommending Alternative 5? 2 MR. HILDEBRAND: No. We are just saying what would 3 happen if the Board -- 4 MR. O'LAUGHLIN: Can you amplify for me on Page 10, the 5 third paragraph, why you believe flow Alternative Number 2 6 is a bizarre proposition? 7 MR. HILDEBRAND: Let me read the paragraph. 8 MR. O'LAUGHLIN: Sure. 9 MR. HILDEBRAND: It's bizarre -- I can use some other 10 word, perhaps -- because New Melones isn't capable of doing 11 what's proposed in the Number 2. So it is an unrealistic 12 proposal as it was developed. We proposed modification of 13 it to avoid that complication. 14 In other words, if you adopted Number 2 as it was 15 written, it wouldn't work because the water wouldn't be 16 there to make it work. 17 MR. O'LAUGHLIN: On Page 11, the last paragraph, have 18 you talked to any biologists about this question: Would the 19 biologist feel better having 3,200 cfs flow in the river 20 with 3,200 cfs of export or would the biologist feel better 21 about having 2,000 cfs in the river and exports of a 22 thousand? 23 MR. HILDEBRAND: I don't think there has been any clear 24 response on that question from the biologists. Basic 25 underlying question was discussed somewhat in the hearings CAPITOL REPORTERS (916) 923-5447 9047 1 and elsewhere, but I don't think we've any clear response. 2 MR. O'LAUGHLIN: I have no further questions. 3 Thank you very much. 4 Thank you, Mr. Hildebrand. 5 MR. HILDEBRAND: Thank you, Mr. O'Laughlin. I'm 6 surprised you quit so early. 7 C.O. STUBCHAER: Now, Mr. Hildebrand, don't tempt him. 8 You both have great stamina, I must say. 9 Does staff have any questions of Mr. Hildebrand? 10 MS. LEIDIGH: No, I don't. 11 C.O. STUBCHAER: Mr. Brown. 12 C.O. BROWN: I have a few questions. 13 ---oOo--- 14 CROSS-EXAMINATION OF SOUTH DELTA WATER AGENCY 15 BY BOARD MEMBERS 16 C.O. BROWN: Mr. Hildebrand, have you checked with 17 Placer County Water Agency for any potential water sales? 18 MR. HILDEBRAND: What agency? 19 C.O. BROWN: Placer County Water Agency. 20 MR. HILDEBRAND: I am not sure I understand what you 21 mean, as to we could buy or whether they are selling water? 22 C.O. BROWN: To make up -- 23 MR. HILDEBRAND: Whether they would make it up? That 24 would be sort of self-defeating, Mr. Brown. Because as we 25 discussed the other day, the water that is in Spicer Dam was CAPITOL REPORTERS (916) 923-5447 9048 1 spill water. And if they sold it, they would be selling us 2 water that would otherwise come down anyway. So I don't see 3 it would solve the problem. 4 C.O. BROWN: This is Placer County. North of the Delta. 5 MR. HILDEBRAND: Beg pardon, I was thinking of 6 Calaveras County. Could you be a little more explicit on 7 how such a sale could be made to our benefit? 8 C.O. BROWN: No. I was asking. I don't know. 9 MR. HILDEBRAND: If more American River water came down 10 and supplied the deficit in the eastern part of San Joaquin 11 County, they would have less need of water out of New 12 Melones. That is a possible scenario. I don't see how we 13 would be involved in making any purchase from American 14 River. 15 C.O. BROWN: How about CVPIA water? You mentioned 16 something about that, the 800,000 acre-feet. 17 MR. HILDEBRAND: The CVPIA, quite aside from the 18 800,000, has a programmatic EIS, which proposes that they 19 would buy 200,000 acre-feet of water each out of Stanislaus, 20 Tuolumne and Merced. I can't conceive of how they could 21 possibly find that much water available to purchase. That 22 is the solution that they propose. 23 C.O. BROWN: Do you visualize the recirculation idea 24 that you have as meeting some of the requirements within the 25 CVPIA, whether that may be a plan? CAPITOL REPORTERS (916) 923-5447 9049 1 MR. HILDEBRAND: I think it would, yes. As we 2 discussed earlier, the potential for augmenting the 3 available water in the San Joaquin River system by 4 recirculation is not actually limited to the pulse flow 5 period. But it is the only period where we can clearly 6 foresee and predict how much could be managed in that 7 manner. Because other times it depends on amount of water 8 in San Luis Dam and other considerations, how much is being 9 delivered at a given time to either state or federal 10 contractors which affects the capability of wheeling. 11 There are a number of factors, but I think it is quite 12 clear there would be other times when it could be done still 13 on a no-net loss basis. As I said repeatedly, it could be 14 done on some other basis. We are pledged to promote only 15 the no-net loss approach. 16 C.O. BROWN: Have you or anyone from your organization 17 had any discussions with the Bureau of Reclamation people in 18 this regard? 19 MR. HILDEBRAND: Yes. 20 C.O. BROWN: What has been the result of those 21 discussions? 22 MR. HILDEBRAND: Well, the Bureau of Reclamation in the 23 meetings I have been party to has not precluded the option 24 of recirculation. It has indicated that they would not take 25 the lead in promoting it. Roger Patterson indicated that if CAPITOL REPORTERS (916) 923-5447 9050 1 it were an adopted proposal by the Board or some other 2 mechanism, that they would probably go along with it. And, 3 in fact, he indicated some willingness to put up the money 4 for the pumping involved and for any facilities that might 5 be installed in the grassland area to enable them to, also, 6 control their drainage. 7 So, it was more an unwillingness to take any lead in it 8 than it was in a unwillingness to adopt such a program that 9 was promoted by others. He has been very explicit with us 10 that he is not going to honor the channel depletion needs in 11 the South Delta unless this Board directs him to. He had 12 similar comments about some other aspects. 13 C.O. BROWN: As I understand it, that you are 14 suggesting that either the California Aqueduct or the DMC 15 could be used to wheel the water? 16 MR. HILDEBRAND: Eventually it has to be dropped from 17 the DMC into the river because the California Aqueduct can't 18 do that. So far as the pumping in the South Delta is 19 concerned, you can use either or both. In most situations 20 our review, along with Dan Nelson and Tom Borden, who is 21 working for him, indicated that most of the time it would 22 not be necessary for the state to wheel, so far as pulse 23 flow recirculation is concerned. But as we acknowledged in 24 some of the cross-examination yesterday, there are some 25 circumstances where that might be necessary. CAPITOL REPORTERS (916) 923-5447 9051 1 C.O. STUBCHAER: You indicated yesterday that Dan 2 Nelson was in support of the concept, anyway? 3 MR. HILDEBRAND: He indicated to me that quite clearly 4 and firmly that he supported the concept as long as it was 5 no-net loss, and that he would continue to support it. We 6 could count on his continuing support in that regard. 7 C.O. BROWN: If I understood your figures when they 8 were up on the board, I think the one example that Mr. 9 O'Laughlin gave in 1993 that the wheeled water would amount 10 to, for the month of April, 165,000 acre-feet. If you had 11 something like 2,500 cfs that was participating; is that 12 correct? 13 MR. HILDEBRAND: In that particular example I 14 acknowledged that it would be necessary for the state to 15 help with the wheeling, but that is not a frequent 16 situation. 17 C.O. BROWN: That may be the high end of the 18 consideration for this alternative? 19 MR. HILDEBRAND: Yes. 20 C.O. BROWN: May, indeed, exceed the capability of the 21 facility? 22 MR. HILDEBRAND: Actually, in our analyses in this 23 report, SDWA 12, it indicated that the years of greatest 24 demand for recirculation would be normal years. And on an 25 average in normal years we only need to recirculate 105,000, CAPITOL REPORTERS (916) 923-5447 9052 1 and that was doable. 2 C.O. BROWN: If I understand this right, that is 3 165,000 acre-feet or some lesser portion thereof that the 4 wheeling recirculation concept would be used first and 5 foremost to the extent possible; and whatever capacity was 6 available you'd use it, what capacity wasn't available would 7 have to be made up by water being purchased someplace? 8 MR. HILDEBRAND: That's correct. 9 C.O. BROWN: It might be a 165,000 acre-feet in that 10 example, or it could be 100,000 or 50,000 or whatever? 11 MR. HILDEBRAND: Yes. Similarly, the San Joaquin River 12 Agreement does not provide the full required flow in all 13 years. They just don't define how they would get their 14 rest; they said how we would get the rest. 15 C.O. BROWN: Instead of wasting water, I visualize that 16 saving water. 17 MR. HILDEBRAND: That's right. In an average, normal 18 year, it will save 105,000 acre-feet of water, according to 19 our analyses. 20 C.O. BROWN: Would the CVP contractors own that water, 21 if it was saved? I guess it is their -- 22 MR. HILDEBRAND: I am not sure who you would say owns 23 the water if it is being recirculated. You are not taking 24 it away from anybody. There would be no charge for the 25 water in the Delta if you are shipping water down someplace. CAPITOL REPORTERS (916) 923-5447 9053 1 C.O. BROWN: Excuse me. In lieu of you would have to 2 make that water up by direct diversions if you recirculate 3 it; is that correct? 4 MR. HILDEBRAND: You mean the supplemental over and 5 above what you could recirculate? 6 C.O. BROWN: If you weren't recirculating the water, 7 wouldn't you have to provide direct diversions and that 8 would be water lost; is that correct? 9 MR. HILDEBRAND: Yes, that is right. 10 C.O. BROWN: If you recirculate a portion thereof, 11 those are not direct diversions you have to make and in a 12 sense is water saved? 13 MR. HILDEBRAND: Whatever amount you can take care of 14 by recirculation saves the water that would otherwise have 15 to be -- 16 C.O. BROWN: The question I have to you, if you think 17 that the Bureau is primarily responsible for the water 18 quality considerations at Vernalis, and they come up with 19 this kind of program, that water would belong to them, the 20 saved water? 21 MR. HILDEBRAND: I think it is their obligation to 22 mitigate their impacts on both flow and salinity. But 23 whether they are going to do it -- I guess you can say they 24 are going to do it by recirculating their water. I suppose 25 that would be the appropriate way to look at it. CAPITOL REPORTERS (916) 923-5447 9054 1 C.O. BROWN: Do you know what the head differential is 2 between the pumping plants in the Delta and the San Luis 3 Reservoir? 4 MR. HILDEBRAND: Could you ask that again? 5 C.O. BROWN: Do you know what the head differential 6 is? Is it about 4- or 500 feet? 7 MR. HILDEBRAND: I don't think that it is that much. 8 It's substantial. 9 C.O. BROWN: The Bureau uses WAPA power? 10 MR. HILDEBRAND: That's right. 11 C.O. BROWN: Do you know how much that is? 12 MR. HILDEBRAND: I don't know. I have seen the 13 numbers, but I don't remember. 14 C.O. BROWN: It might be an idea to figure out what the 15 cost of the energy is just to have that. Do you have that 16 number anywhere? 17 MR. HILDEBRAND: I don't have the number. It is rather 18 readily obtainable. 19 C.O. BROWN: If the San Joaquin River Agreement folks 20 were to use -- let's back up. What is your definition of 21 real water? 22 MR. HILDEBRAND: It's real water, as brought out in 23 earlier discussion, if you consumed less, then the water you 24 don't consume is real water. However, who gets the benefit 25 of that real water depends on what you do with it, whether CAPITOL REPORTERS (916) 923-5447 9055 1 it comes down for fish or whether it comes down for you to 2 maintain the flow and salinity control at the downstream 3 water users. 4 C.O. BROWN: Excuse me, not what you do with it. What 5 is your definition of what it is? 6 MR. HILDEBRAND: It's real water if it actually makes 7 more wet water available in the overall river system for 8 parties other than the seller. 9 C.O. BROWN: If the San Joaquin River Agreement concept 10 was to come up in a sense with what you would consider real 11 water, could you support it? 12 MR. HILDEBRAND: If they were going to supply the water 13 that they are going to propose by reducing their consumptive 14 use and if the water made available by that reduction came 15 down on the same schedule and for the same purposes that it 16 would otherwise have come down, then yes. But if they 17 reduce the consumptive use and use that for pulse flow, then 18 we don't get return flows that we would otherwise have in 19 summers. There is a distinction whether the water us real 20 and whether it would maintain the benefit to the downstream 21 water users. 22 C.O. BROWN: I understand that. 23 If the alternative came up with that, you would 24 consider and classify that as real water, which would be an 25 increment over and above what is currently being used to CAPITOL REPORTERS (916) 923-5447 9056 1 meet their demands. The question is: Then, could you 2 support their alternative? 3 MR. HILDEBRAND: We could support an alternative that 4 did not affect the flow and salinity at Vernalis. 5 C.O. BROWN: Would real water from -- 6 MR. HILDEBRAND: If it was real water, yes. However, 7 I think from the Board's point of view you still have to 8 consider whether it is reasonable use of water as compared 9 to providing those flows and the water quality protection by 10 recirculation, which doesn't take water away from the 11 sellers. 12 C.O. BROWN: You're ahead of me. If there is room for 13 compromise or support with the real water, do you think that 14 there is, concurrent with that, an opportunity to use the 15 recirculating idea to the extent practical or possible in 16 conjunction with the San Joaquin people? 17 MR. HILDEBRAND: You could make some sort of compromise 18 between the two, yes. 19 C.O. BROWN: How would that work? 20 MR. HILDEBRAND: If they were committed to releasing 21 real water by reducing consumptive use, part of the water 22 could be supplied that way for the pulse flow and part could 23 be provided by recirculation. However, it was my 24 understanding when we attempted to discuss this with them 25 that they are unwilling to do anything like that. CAPITOL REPORTERS (916) 923-5447 9057 1 I could understand that because the directors of these 2 districts are beholden to their customers. And their 3 customers are not enthusiastic about changing cropping 4 patterns or fallowing land. I don't envision any likelihood 5 that the districts could agree to something that committed 6 them to reduction in consumptive use. If I am wrong about 7 that, yes, but I don't foresee it, and certainly no 8 indication in my discussions that they would consider it. 9 C.O. BROWN: Possibly new facilities providing 10 increased real water or reoperation of -- 11 MR. HILDEBRAND: If you increase yield, that is new 12 water, too. But there is no commitment in their program to 13 increase yield or any quantification of how much increase 14 yield you might get if you did things that they speak of 15 just generically. To what extent you might be able to make 16 better conjunctive use of water in the tributary basins, 17 that is a possibility, but it hasn't been quantified. 18 There is no commitment that they would actually do that. 19 But, yes, to the extent they could actually increase the 20 yields of the system, that would be okay. 21 C.O. BROWN: I think they come up with a plan to help 22 increase yield, and let me back up a minute. Do you really 23 think that they understood your concept of recirculation? 24 MR. HILDEBRAND: I think so because some of their 25 members were quite partial to it until they decided they CAPITOL REPORTERS (916) 923-5447 9058 1 wouldn't make any money that way. 2 C.O. BROWN: Do you think you really understood their 3 program -- 4 MR. HILDEBRAND: I think so. 5 C.O. BROWN: -- prior to this hearing? 6 MR. HILDEBRAND: I think so. 7 C.O. BROWN: Would you be willing to try to develop 8 some type of a working joint program that might be a 9 compromise between the two or others, other alternative? 10 MR. HILDEBRAND: We were willing to talk which they 11 broke off in negotiation. 12 C.O. BROWN: What about X2? Is that more of a public 13 trust issue or is that more of a specific issue to CVP 14 people or state contractors or is that more of a charge and 15 responsibility of the greater whole? 16 MR. HILDEBRAND: Well, the purpose of X2 is 17 environmental purpose, not a water supply purpose. Whether 18 the X2 would be maintained entirely by outflow from 19 Sacramento or whether the San Joaquin River contributed to 20 it, is a decision I don't think we would want to be involved 21 in particularly. 22 The Board in its plan does address the amount of water 23 that would come out of the San Joaquin to provide some share 24 of that X2, depending on the location of X2. We are not 25 opposed to that. Our plan can accommodate that. It is not CAPITOL REPORTERS (916) 923-5447 9059 1 addressed in the case of the San Joaquin River Agreement 2 proposal. 3 C.O. BROWN: You think that might be more of a public 4 trust issue? 5 MR. HILDEBRAND: Yes, I think so. 6 C.O. BROWN: How do you propose they could hold their 7 drainage from May to, say, April? 8 MR. HILDEBRAND: Well, I went down and I went all over 9 this with the drainers down there. There are about 90,000 10 acres of agricultural drainage that drain through Salt and 11 Mud Slough in the river. They took me around and showed me 12 the facilities they have that gave them substantial 13 capability to do that already. 14 There is a portion of that that has to do with exchange 15 contractors, which was not involved in the discussions I 16 had, but it is not a big percentage of it. Think maybe 17 20,000 acres or something of that sort. So I was assured by 18 Dennis Falacci, for example, that they had the capability to 19 do this in a significant degree already and that they could 20 augment that. Since it wasn't pinned down in our report 21 here, I indicated yesterday we focused on the runs which 22 only required a 50-percent control during a six-week 23 period. But appeared to me that they felt they could do 24 that. 25 In the case of grassland people, we also talked to CAPITOL REPORTERS (916) 923-5447 9060 1 them, but not as expensively. They, as I understood it, 2 have some willingness to do this, but they would have to 3 have some, what I would describe as, fairly modest facility 4 in order for them to be able to move water around within the 5 grasslands during the retention period. 6 They, I thought, committed to make some analysis of 7 this, but I don't believe they have done it. We did not 8 include the control of the wetland drainage in our current 9 proposal, even though that is a potential. It's also been 10 altered somewhat by the fact that now that they have some 11 rights to DMC water they have more capability of draining 12 some early and then replenishing it. Whereas, previously 13 they hold it all and dumped it all at one time during the 14 six-week period we are talking about. 15 C.O. BROWN: Do you think there is opportunity with 16 the recirculation concept to dispose of subsurface drainage 17 water? 18 MR. HILDEBRAND: Yes, providing we recirculate, we can 19 dispose of it. If we don't, we have this problem that you 20 damage the water quality in the reach of river from Salt and 21 Mud Slough down at least as far as the Tuolumne as we have 22 discussed. And this is the reason why we think, in 23 addressing the consequence of increased pumping involved to 24 recirculate, you need to look at the overall Comprehensive 25 Plan which may or may not involve some detriment from CAPITOL REPORTERS (916) 923-5447 9061 1 increased pumping, but it would be offset by the benefits 2 you get from improved water quality in the main stem of the 3 river and by the benefit of taking less water out of the San 4 Joaquin River system yield so that water then is available 5 for fish purposes as well as for other purposes. 6 So, if you address this, as I say, in looking at the 7 overall plan, rather than piecemeal it, we think it is 8 actually a plus for fishery, even though there is some 9 controversy about the affect of the increased pumping viewed 10 all by itself. Similarly, on this question of the 11 opposition that has been the case from the fish wildlife to 12 the barriers, it is my understanding that they are now 13 saying, "Well we don't like the barriers. We look at them 14 of and by themselves." But if it is viewed as part of an 15 overall program which would have offsetting benefits to what 16 they believe might be detriments, then they are more 17 amenable to that. 18 I can't speak for them in any detail, but that is my 19 understanding. There is a move a foot now to examine at 20 least in the CalFed program, for example, that instead of 21 taking in the water in Clifton Court, only on a higher tide 22 that then you would take it around the clock in order to 23 have a more uniform flow into the Clifton Court. That then 24 would enable you to put screens on the intake and avoid the 25 predation problem in Clifton Court. If they did that, we CAPITOL REPORTERS (916) 923-5447 9062 1 would absolutely have to have the barriers. On the other 2 hand, presumably there is a substantial fishery benefit to 3 this or they wouldn't be proposing it. 4 C.O. BROWN: My concern was with the salt. If there is 5 an opportunity here, in your mind, to help alleviate some 6 drainage problems in the valley through this concept; and 7 the question is you believe there is some opportunity here. 8 And I suspect an opportunity would be limited by the water 9 quality standards set at Vernalis? 10 MR. HILDEBRAND: Yes, it would. It is a significant 11 opportunity, but does not replace the need for a valley 12 drain. 13 C.O. BROWN: You think it would help alleviate some of 14 the hurt that is going on? 15 MR. HILDEBRAND: It would substantially reduce the 16 damage caused by that drainage in the San Joaquin River 17 system. 18 C.O. BROWN: Did you discuss this with Dan Nelson or 19 Dennis Falacci or any others? 20 MR. HILDEBRAND: Yes. 21 C.O. BROWN: What was their opinion? 22 MR. HILDEBRAND: It is my understanding that they were 23 quite amenable to the concept. 24 C.O. BROWN: Is there a problem with upslope drainage 25 and subsurface drainage in that area? CAPITOL REPORTERS (916) 923-5447 9063 1 MR. HILDEBRAND: Yes. The upslope problem exacerbates 2 the difficulty of their controlling the time of release into 3 the river without damage to the downstream parties. If you 4 spent the money to reorient some of those drainage, tile 5 drainage lines, so that they ran along the contours instead 6 of up and down, then, as analyzed by various -- 7 C.O. BROWN: That would be a lot of money? 8 MR. HILDEBRAND: That is expensive, yes. Some of those 9 are already aligned in such a manner that you can do this. 10 C.O. BROWN: So, there is some possibility existing 11 already? 12 MR. HILDEBRAND: That is correct. 13 C.O. BROWN: Let's talk a minute about the 1,500 14 acre-feet that Oakdale and South San Joaquin are 15 contemplating selling to Stockton East, I believe it was. 16 MR. HILDEBRAND: I think it is a variable amount up to 17 30,000, if I remember rightly. I don't know that that is 18 any completed negotiations, so I couldn't say. 19 C.O. BROWN: You were concerned with some of the 20 tailwater not making it back into the South Delta? 21 MR. HILDEBRAND: That's right. 22 C.O. BROWN: What do you think that water is going to 23 be used for in Stockton East? 24 MR. HERRICK: Member Brown, may I just ask for a 25 clarification? There were two different transactions CAPITOL REPORTERS (916) 923-5447 9064 1 discussed yesterday. One of them was the 15,000 Oakdale 2 would sell to the Bureau under the SJRA, and then separate 3 from that there were discussions about whether or not those 4 two districts might be making a sale to Stockton East. 5 C.O. BROWN: You are correct. I am interested in the 6 latter. 7 MR. HILDEBRAND: This eastern part of the county needs 8 water, no question about that. They have a serious 9 overdraft problem, and directly or indirectly this water 10 would be used to reduce that overdraft problem. 11 C.O. BROWN: Would that be a benefit to your 12 organization? 13 MR. HILDEBRAND: Wouldn't benefit us. It would be 14 detrimental to us because we lose the return flow from the 15 water. 16 C.O. BROWN: Do you pump any groundwater in your area? 17 MR. HILDEBRAND: Almost none. The groundwater in our 18 area is not much good. 19 C.O. BROWN: If they use it for irrigation, wouldn't 20 the same tailwater occur whether they used it in Stockton 21 East or Oakdale? 22 MR. HILDEBRAND: It would occur, but not to our 23 benefit. It would come in north of us. 24 C.O. BROWN: It doesn't drain back? 25 MR. HILDEBRAND: Doesn't drain back into our CAPITOL REPORTERS (916) 923-5447 9065 1 watershed. 2 C.O. BROWN: So it is not your watershed you are 3 concerned about? 4 MR. HILDEBRAND: That's right. 5 C.O. BROWN: Thank you, Mr. Chairman. That is all I 6 have. 7 C.O. STUBCHAER: Ms. Forster. 8 MEMBER FORSTER: Alex, Mr. Hildebrand, do I recall you 9 saying much earlier in your testimony that CalFed was -- 10 CalFed had looked at the recirculation, and it was being 11 considered as maybe a demonstration or pilot project? 12 MR. HILDEBRAND: The CalFed proposals are kind of 13 fluid, so it is a little hard to say any given moment what 14 they are proposing. However, they have given some 15 consideration to it. 16 MEMBER FORSTER: In listening to the questioning over 17 the past couple of days, it was hard to get an understanding 18 what the water costs were. I said that word yesterday. It 19 is my understanding that you said that that didn't matter in 20 the overall scheme of things. And I don't understand -- I 21 didn't understand that. I don't understand what you meant 22 when you said, "It didn't matter." 23 MR. HILDEBRAND: I'm sorry. I'm not adept at 24 explaining these things. To the extent that you meet the 25 flow requirements and water quality requirements in the San CAPITOL REPORTERS (916) 923-5447 9066 1 Joaquin River at Vernalis and upstream of Vernalis by 2 recirculation, there is no water cost. To the extent you 3 meet it some other way, there is a water cost. To whom the 4 cost -- to who incurs the cost depends on where you acquire 5 the water. 6 MEMBER FORSTER: Do you think -- my last question. Do 7 you think that this plan that you propose will in any way 8 harm the water quality of other people? 9 MR. HILDEBRAND: No. 10 MEMBER FORSTER: It won't harm people that take water 11 out of the Delta and put it in the state water, the 12 California Aqueduct or the CVP? 13 MR. HILDEBRAND: Our plan would significantly improve 14 the water quality of the federal deliveries. 15 C.O. STUBCHAER: Any more questions? 16 That concludes the cross-examination of Mr. Hildebrand. 17 Do you have any redirect, Mr. Herrick? 18 MR. HERRICK: Yes, I do, Mr. Chairman. 19 ---oOo--- 20 REDIRECT EXAMINATION OF SOUTH DELTA WATER AGENCY 21 BY MR. HERRICK 22 MR. HERRICK: Let me go backwards for today's 23 questions, and then I will get to the other questions. 24 Mr. Hildebrand, you have looked at this idea of 25 withholding the drainage from other areas down in the San CAPITOL REPORTERS (916) 923-5447 9067 1 Joaquin Valley; is that correct? 2 MR. HILDEBRAND: That's right. 3 MR. HERRICK: So you've got sort of a feel for the 4 quantity of this drainage we are talking about? 5 MR. HILDEBRAND: Yes. 6 MR. HERRICK: Do you have an opinion as to whether or 7 not all of that drainage would be diluted by the fishery 8 pulse flows required under the '95 plan? 9 MR. HILDEBRAND: None of it would be proposed -- would 10 be diluted until it gets down to or no significant amount 11 until it gets down to the perc flows in the Tuolumne, and it 12 wouldn't be fully diluted until it got down to Stanislaus. 13 Whereas, our proposal would provide that dilution 14 further upstream and avoid the serious detriment to water 15 quality in the upper reaches of the main stem. 16 MR. HERRICK: Is the volume of the pulse flow 17 sufficient to dilute the volume of the drainage? 18 MR. HILDEBRAND: It is sufficient to dilute a 19 substantial amount of it. To the extent that we are 20 proposing to do it in our recirculation scheme, yes, it 21 would do it. However, as I indicated earlier, we can't do 22 it to the degree that would enable the restitution of a salt 23 balance in the valley. That requires a valley drain. 24 MR. HERRICK: You mentioned that the delay in drainage 25 is a six-week delay; is that correct? CAPITOL REPORTERS (916) 923-5447 9068 1 MR. HILDEBRAND: That's what we were looking at. 2 MR. HERRICK: Just for clarity, when would that delay 3 take place? 4 MR. HILDEBRAND: From about the 1st of March to the 5 15th of April when the pulse started. That is a somewhat 6 arbitrary period of time. But if you look back historically 7 at the periods of time when we have had the heaviest drain 8 on New Melones to meet water quality, would have had it had 9 the standard been met, there are years when more than half 10 of the total demand on New Melones for water quality 11 occurred during that period. 12 MR. HERRICK: Mr. Hildebrand, Board Member Brown asked 13 you questions about X2 and potential responsibility for 14 that. Do you recall those questions? 15 MR. HILDEBRAND: Yes. 16 MR. HERRICK: One of the questions dealt with whether 17 or not it may be a public trust issue. Do you recall that? 18 MR. HILDEBRAND: Yes. 19 MR. HERRICK: Do you have an opinion as to whether or 20 not or what priority would be given to a public trust issue 21 or as to whether or not -- let me stop -- what priority a 22 public trust issue would be given? 23 MR. HILDEBRAND: As vis-a-vis, what other issue? 24 MR. HERRICK: In relation to satisfying other 25 objectives, say, in the Water Quality Control Plan. CAPITOL REPORTERS (916) 923-5447 9069 1 MR. HILDEBRAND: I am not aware of any clear legal 2 determination of priority between public trust and water 3 quality, for example. But I don't think that the Board's 4 plan calls for reducing compliance with water quality in 5 order to meet X2. 6 MR. HERRICK: Mr. Hildebrand, are you familiar with 7 Water Code Section 12202? 8 MR. HILDEBRAND: I think so. Let me check the number 9 here. 10 Yes, yes. 11 MR. HERRICK: Is it your understanding that that 12 statute puts obligations on the state and federal projects 13 for certain responsibilities? 14 MR. HILDEBRAND: Certainly does. 15 MR. HERRICK: Is one of those responsibilities the 16 salinity control in the Delta? 17 MR. HILDEBRAND: That's right. 18 MR. HERRICK: Do you have an opinion as to whether or 19 not the Board should take this statute in consideration when 20 deciding how or how to effectuate X2 under the plan? 21 MR. HILDEBRAND: It seems to me they would have to. 22 MR. HERRICK: Turning now to questions by Mr. 23 O'Laughlin today. He referred to the last paragraph on Page 24 11 of your testimony. Could you look at that real quickly. 25 MR. HILDEBRAND: Yes. CAPITOL REPORTERS (916) 923-5447 9070 1 MR. HERRICK: As you recall, he asked you whether or 2 not you consulted with any fishery agency about any 3 preference with 3,200 csf flow and recirculation of all that 4 amount versus a 2,000 csf flow and 1,500 export amount. 5 Do you recall that? 6 MR. HILDEBRAND: Yes. 7 MR. HERRICK: Of course, under your proposal, Mr. 8 Hildebrand, the 3,200 csf is not necessarily -- 9 MR. BIRMINGHAM: Can we have a stipulation that csf is 10 actually cfs? 11 C.O. STUBCHAER: If Mr. Herrick will agree. 12 MR. HERRICK: I apologize. 13 C.O. STUBCHAER: Do you agree? 14 MR. HERRICK: I agree. 15 MR. HILDEBRAND: Mr. Birmingham is awake. 16 MR. HERRICK: We would like to welcome Mr. Birmingham. 17 MR. HILDEBRAND: Pardon me, Mr. Birmingham. 18 MR. HERRICK: Mr. Hildebrand, would you agree that your 19 proposal does not necessitate that the 32 cfs is 20 recirculated? 21 UNIDENTIFIED VOICE: 32 or 3,200? 22 MR. HERRICK: 3,200 cfs is recirculated? 23 MR. HILDEBRAND: That's right. 24 MR. HERRICK: A portion of that may be recirculated 25 under our proposal? CAPITOL REPORTERS (916) 923-5447 9071 1 MR. HILDEBRAND: That's right. 2 MR. HERRICK: Of course, under your proposal if it is 3 not able to be recirculated, what is needed then; you have 4 other methods of providing that? 5 MR. HILDEBRAND: Backup methods, yes. 6 MR. HERRICK: You were also asked questions regarding 7 whether or not South Delta Water Agency has brought suit 8 regarding the Bureau's Interim Operation Plan. Do you 9 recall that? 10 MR. HILDEBRAND: Yes. 11 MR. HERRICK: Are you familiar with the existing 12 lawsuit brought by Stockton East Water District with other 13 plaintiffs against the Bureau? 14 MR. HILDEBRAND: I am aware of that. 15 MR. HERRICK: Are you aware that one of those issues 16 deals with the Bureau's operation of New Melones? 17 MR. HILDEBRAND: Yes. 18 MR. HERRICK: Is that one of the considerations your 19 agency took into account, whether or not to sue the Bureau? 20 MR. HILDEBRAND: Yes. 21 MR. HERRICK: Do you understand that that lawsuit also 22 involves the same issue raised in your testimony on Page 8, 23 that issue being the allegation that the change in 24 operations of New Melones may be a permit violation also? 25 MR. HILDEBRAND: Yes. CAPITOL REPORTERS (916) 923-5447 9072 1 MR. HERRICK: Mr. Hildebrand, do you recall the 2 questions regarding the availability of Friant water, either 3 Class II or perhaps other water from the Arvin-Edison 4 District? 5 MR. HILDEBRAND: Yes. 6 MR. HERRICK: Under your proposal, recirculation water 7 may be needed in any year type; is that correct? 8 MR. HILDEBRAND: That's right. 9 MR. HERRICK: So, hypothetically, if Arvin-Edison Class 10 II water were available in an above normal or wet year, that 11 might be available for recirculation; is that correct? 12 MR. HILDEBRAND: That's right. 13 MR. HERRICK: And the fact that it might not be 14 available in dry or below normal years does not preclude 15 purchases at a time when water is needed? 16 MR. HILDEBRAND: That's correct. 17 MR. HERRICK: Mr. Laughlin asked you questions about 18 your understanding of the assumptions made for the modeling 19 done as evidenced in South Delta Number 12; is that correct? 20 MR. HILDEBRAND: Yes. 21 MR. HERRICK: Could you explain, again -- let me start 22 over. 23 Mr. Hildebrand, is it your opinion that depending on 24 where water provided under the SJRA for fishery flows comes 25 from determines the effects of that provision of water? CAPITOL REPORTERS (916) 923-5447 9073 1 MR. HILDEBRAND: Yes. 2 MR. HERRICK: And your concern -- is it correct that 3 your concern is depending on where it comes from can affect 4 the ability of the Bureau to meet the salinity standard at 5 Vernalis; is that correct? 6 MR. HILDEBRAND: That is one of the concerns, yes. 7 MR. HERRICK: And that same line of questioning also 8 applies to when the water is provided; is that correct? 9 MR. HILDEBRAND: Very much so. 10 MR. HERRICK: Is it one of the points in your 11 testimony, that until you determine that, you do not know 12 what the effects of implementation are under that method? 13 MR. HILDEBRAND: That's right. 14 MR. HERRICK: Mr. Hildebrand, Mr. Birmingham asked you 15 questions regarding your belief as to whether or not South 16 Delta Water Agency members might be entitled to upstream 17 storage. Do you recall that? 18 MR. HILDEBRAND: Yes. 19 MR. HERRICK: Mr. Hildebrand, in the recent drought was 20 there a time that you know of that any upstream dam operator 21 passed through the natural flow at times when the South 22 Delta was receiving insufficient water to meet its needs? 23 MR. HILDEBRAND: I am not aware that was explicitly 24 done. 25 MR. HERRICK: Mr. Hildebrand, has any dam operator CAPITOL REPORTERS (916) 923-5447 9074 1 upstream made any effort to make sure that the natural flow 2 is passed through at times when amounts of water reaching 3 South Delta are insufficient for users in that area? 4 MR. HILDEBRAND: It is my understanding they give no 5 consideration to that. 6 MR. HERRICK: Would you include this principle we just 7 talked about as your belief as to whether or not downstream 8 users are entitled to upstream storage? 9 MR. HILDEBRAND: Yes. If they store some of that 10 water they should have let through, we have a right to it. 11 MR. HERRICK: Mr. Hildebrand, you are familiar with the 12 permit at New Melones under which the Bureau operates; is 13 that correct? 14 MR. HILDEBRAND: Yes. 15 MR. HERRICK: You are familiar with the permit 16 conditions for the New Melones' operations that require 17 water quality releases downstream? 18 MR. HILDEBRAND: Yes. 19 MR. HERRICK: Are you aware of any limitation on the 20 amount of water that the Bureau is required to provide in 21 order to meet that downstream water quality requirement? 22 MR. HILDEBRAND: There is none. 23 MR. HERRICK: Mr. Hildebrand, if the Bureau stores 24 water -- Mr. Hildebrand, if the Bureau does not meet the 25 water quality requirement downstream and yet is storing CAPITOL REPORTERS (916) 923-5447 9075 1 water in New Melones, is it your position that downstream 2 users might have a legal right to that stored water? 3 MR. HILDEBRAND: Yes. 4 MR. HERRICK: Are you generally familiar with the CEQA 5 and NEPA laws passed by the Federal government? 6 MR. HILDEBRAND: Generally. 7 MR. HERRICK: Mr. Hildebrand, is it your understanding 8 that those laws require an analysis of effects of projects 9 instituted by certain agencies or entities? 10 MR. HILDEBRAND: Yes. 11 MR. HERRICK: Is it your understanding as part of those 12 laws the intent of those statutes is to minimize or avoid 13 adverse environmental impacts? 14 MR. HILDEBRAND: Yes. 15 MR. HERRICK: As part of the application of those 16 statutes, it is common that there is mitigation done or 17 required in order to alleviate any such impacts? 18 MR. HILDEBRAND: Yes. 19 MR. HERRICK: Is it your opinion that those 20 requirements also may place on upstream stores the 21 obligation to make releases of stored water or to avoid 22 impacts that they have caused? 23 MR. HILDEBRAND: Yes. 24 MR. HERRICK: Mr. Hildebrand, we just -- earlier you 25 acknowledged that you are familiar with Section 12202 of the CAPITOL REPORTERS (916) 923-5447 9076 1 Water Code. Do you recall that? 2 MR. HILDEBRAND: Yes. 3 MR. HERRICK: Is it your understanding that that 4 section of the Water Code requires the state and federal 5 governments to provide an adequate water supply for the 6 users of water in the Sacramento-San Joaquin Delta? 7 MR. HILDEBRAND: Yes. 8 MR. HERRICK: Mr. Hildebrand, would you include that if 9 your belief as to why upstream stores of water may have 10 downstream obligations to South Delta users? 11 MR. HILDEBRAND: Yes. 12 MR. O'LAUGHLIN: Objection. Calls for a legal 13 conclusion. I think we went through this yesterday with Mr. 14 Herrick that Mr. Hildebrand was not going to testify as a 15 lawyer in the interpretation of statutes or other cases. So 16 he can't have it both ways. 17 C.O. STUBCHAER: I would say -- well, Mr. Herrick. 18 MR. HERRICK: I believe the discussion yesterday was 19 with regard to various lawsuits that South Delta had brought 20 or participated in. Throughout these proceedings, both Mr. 21 Hildebrand and other witnesses have discussed their 22 understanding of statutes with everybody's recognition that 23 that is not a legal conclusion, but opinion of the witness. 24 C.O. STUBCHAER: We discussed -- 25 MR. HERRICK: I am not asking to have it both ways. CAPITOL REPORTERS (916) 923-5447 9077 1 C.O. STUBCHAER: Mr. O'Laughlin. 2 MR. O'LAUGHLIN: Yesterday, when I was asking my 3 question about what his understanding of the lawsuit was, I 4 only wanted an understanding of what South Delta was 5 claiming as their legal rights or entitlements in the 6 lawsuit. 7 Mr. Hildebrand can't say that he understands some of 8 this but not all of it, and he gets to be treated as an 9 expert on California water law issues in regards to the 10 Delta Protection Act and then on his lawsuits he can claim 11 innocence that he doesn't know what they are suing on or 12 what legal theory. 13 C.O. STUBCHAER: Mr. Nomellini. 14 MR. NOMELLINI: I was out of the room when you made 15 your ruling on the specific lawsuit, but I was in the room 16 for extensive cross-examination by Mr. O'Laughlin that 17 involved asking Mr. Hildebrand what the rights were 18 pertaining to South Delta riparians as to this, that and the 19 other thing. I think this particular question is well 20 within the bounds of redirect, focusing in on that general 21 questioning by Mr. O'Laughlin. 22 C.O. STUBCHAER: Mr. O'Laughlin. 23 MR. O'LAUGHLIN: I would agree with Mr. Nomellini on 24 that. But if that is the case, I don't see why the 25 objection was sustained yesterday in regard to what Mr. CAPITOL REPORTERS (916) 923-5447 9078 1 Hildebrand understood his legal rights were when he brought 2 the lawsuits at either the Superior Court or the Federal 3 District Court. In fact, he's recently -- he just testified 4 here today, several minutes ago, about why they weren't 5 suing because what Stockton East was doing in Federal 6 District Court about the various allegations that were being 7 made by the Bureau. That is all I am saying. 8 I just think to be fair I should be allowed to inquire 9 regarding those lawsuits, why they are or are not 10 participating in those lawsuits. 11 C.O. STUBCHAER: We've established in previous rulings 12 that Mr. Hildebrand is not an expert on the legal matters, 13 but he is experienced and has worked with water law for a 14 long time and would allow him to answer the question to the 15 best of his ability. But also mention that the Board will 16 give weight to the fact that he is not an expert witness in 17 legal matters when considering his testimony. 18 MEMBER DEL PIERO: Mr. Chairman. 19 C.O. STUBCHAER: Mr. Del Piero. 20 MEMBER DEL PIERO: If you would be kind enough to ask 21 Mr. Herrick to reask the question. 22 C.O. STUBCHAER: Yes. Please reask the question, Mr. 23 Herrick. 24 MR. HERRICK: I hope it is the same question. 25 MEMBER DEL PIERO: Just want to keep them straight. I CAPITOL REPORTERS (916) 923-5447 9079 1 am not asking for you to change anything. I just want to 2 know what the question is. 3 MR. HERRICK: Mr. Hildebrand, as one of reasons that 4 you believed that upstream stores of water may have 5 obligations to downstream users, is one of those reasons the 6 obligation you understand to be contained in Section 12202 7 of the Water Code? 8 MR. HILDEBRAND: Yes. 9 MR. HERRICK: Are you familiar, Mr. Hildebrand -- 10 again, you are not a lawyer. You are familiar generally 11 with the principle known as the physical solution? 12 MR. HILDEBRAND: Yes. 13 MR. HERRICK: Is it your understanding that is just a 14 general term that describes accommodations that may be made 15 to the permits on upstream water users to take into account 16 the effects on downstream flows? 17 MR. HILDEBRAND: Yes. 18 MR. HERRICK: It is your understanding that the Board 19 has made previous rulings on that issue with regard to 20 fishery flows; is that correct? 21 MR. HILDEBRAND: Yes. 22 MR. HERRICK: Do you understand that some of those 23 previous rulings actually have required downstream releases 24 for fisheries in excess of what the natural flow would have 25 been in the absence of the dam? CAPITOL REPORTERS (916) 923-5447 9080 1 MR. HILDEBRAND: Yes. 2 MR. HERRICK: Is one of the reasons that you believe 3 upstream stores of water may have downstream obligations is 4 this same principle? 5 MR. HILDEBRAND: Yes. 6 MR. HERRICK: Mr. Hildebrand, Mr. Birmingham asked you 7 various questions about the effects of the permit 8 restrictions that you proposed and how or if that may 9 address compliance with the water quality standard. Do you 10 recall that? 11 MR. HILDEBRAND: Yes. 12 MR. HERRICK: Mr. Hildebrand, was the intent of the 13 proposals, those permit proposals, was it your intent that 14 the, I will call them, penalties that kick in would 15 immediately cure any problem that dealt with the compliance 16 with the water quality standard at Vernalis? 17 MR. HILDEBRAND: Would you repeat that? 18 MR. HERRICK: Was it your intent by making those permit 19 proposals that once they kicked in they would be immediate 20 correction of any water quality violation of Vernalis? 21 MR. HILDEBRAND: No. There would be a time delay. 22 MR. HERRICK: Was it your intent by making those 23 proposals to have the Board force the Bureau to readjust its 24 operations in order to provide for long-term solutions for 25 some of the problems? CAPITOL REPORTERS (916) 923-5447 9081 1 MR. HILDEBRAND: Yes. 2 MR. HERRICK: Mr. Hildebrand, Mr. Birmingham also asked 3 you questions with regard to restrictions that might be 4 placed on purchases. Do you recall those questions? 5 MR. HILDEBRAND: Yes. 6 MR. HERRICK: Those questions always dealt with the 7 difference between reductions in consumption versus the 8 reduction in tailwater. Do you recall that? 9 MR. HILDEBRAND: Yes. 10 MR. HERRICK: Mr. Hildebrand, are you familiar with 11 CVPIA, the federal law passed approximately in 1992? 12 MR. HILDEBRAND: Portions of it. 13 MR. HERRICK: Does that law contain restrictions on 14 certain transfers? 15 MR. HILDEBRAND: Definitely does. 16 MR. HERRICK: Is one of those restrictions that the 17 water transferred be subject to a requirement that it was -- 18 that it had been consumptively used or irretrievably lost? 19 MR. HILDEBRAND: That's right. 20 MR. HERRICK: Is that the sort of restriction on the 21 transfers that you propose as part of your plan? 22 MR. HILDEBRAND: Yes. 23 MR. HERRICK: There were also questions asked of you, 24 Mr. Hildebrand, regarding potential losses of water that was 25 recirculated. Do you recall that? CAPITOL REPORTERS (916) 923-5447 9082 1 MR. HILDEBRAND: Yes. 2 MR. HERRICK: Do you have any opinion as to the 3 magnitude or amount of any such losses that might occur due 4 to the recirculation proposal? 5 MR. HILDEBRAND: In our discussions with Dan Nelson and 6 others, we discussed that at some length. There are both 7 the subsurface accretions and other matters, water going to 8 groundwater and being reused that complicate the question. 9 But our conclusion was that it would be -- whether it was 10 plus or minus would be a relatively small figure. And that 11 if there were any detriment, the detriment could be made up 12 out of New Melones with a fraction of the water that would 13 be saved in the New Melones by the operation. 14 MR. HERRICK: Of course, Mr. Hildebrand, would you 15 agree it is possible that, as you just said, additional 16 evaporation, seepage, there actually may be some loss? 17 MR. HILDEBRAND: Possibly some. Indeterminate? 18 MR. HERRICK: Mr. Hildebrand, I've put South Delta 19 Exhibit 56 back on the overhead. Do you see the map of the 20 Delta? 21 MR. HILDEBRAND: Yes. 22 MR. HERRICK: Mr. Birmingham asked you certain 23 questions with regard to whether or not any users in the 24 South Delta were downstream of the federal pumps. Do you 25 recall those questions? CAPITOL REPORTERS (916) 923-5447 9083 1 MR. HILDEBRAND: Yes. 2 MR. HERRICK: Could you identify for the record where 3 the federal pumps are in relation to the South Delta 4 channels? 5 MR. HILDEBRAND: The federal pumps draw water from Old 6 River, very close to the west end of the Grant Line Canal. 7 MR. HERRICK: Mr. Hildebrand, what is the natural flow 8 of Grant Line Canal and Old River in that area, the 9 direction? 10 MR. HILDEBRAND: Toward the pumps. 11 MR. HERRICK: After it reach's the point where the 12 pumps take off, where does the natural flow go? 13 MR. HILDEBRAND: You mean in the absence of exports? 14 MR. HERRICK: Yes. 15 MR. HILDEBRAND: It would go north, then. 16 C.O. STUBCHAER: Mr. Herrick, could you point out the 17 pumping stations, there are two dots. For the benefit of 18 those who aren't familiar with it. 19 MR. HERRICK: Mr. Hildebrand, I am going to point to 20 the pumps. There is a little dot here showing the federal 21 pumps; is that correct? 22 MR. HILDEBRAND: That's correct. 23 MR. HERRICK: It is on a channel southwest of the 24 junction of Grant Line Canal and Old River? 25 MR. HILDEBRAND: Yes. CAPITOL REPORTERS (916) 923-5447 9084 1 MR. HERRICK: Mr. Hildebrand, if the pumps, the federal 2 pumps, shut down, the water that they normally take would 3 normally flow down Old River in the normal direction? 4 MR. HILDEBRAND: That's correct. 5 MR. HERRICK: Mr. Hildebrand, are there any South Delta 6 diverters downstream of that point where the water continues 7 to flow? 8 MR. HILDEBRAND: There are a few, yes. 9 MR. HERRICK: Are there any Central Delta diverters 10 downstream of that point? 11 MR. HILDEBRAND: Oh, yes, lots of them. 12 MR. HERRICK: So, if a permit condition that you 13 proposed resulted in a decrease in export pumping from the 14 federal pumps, would that water then be available for 15 downstream users to use? 16 MR. HILDEBRAND: Say that again, please. 17 MR. HERRICK: If the export pumps -- export pumping was 18 decreased due to one of your permit condition proposals, is 19 that water then flowing down the channels and available for 20 diversion by other users? 21 MR. HILDEBRAND: It is only going to flow on downstream 22 if the inflow from the San Joaquin system to that point is 23 less than the amount being pumped. 24 MR. HERRICK: Mr. Hildebrand, the questions that we're 25 referring to talked about whether or not a shutdown of those CAPITOL REPORTERS (916) 923-5447 9085 1 pumps would result in a waste of that water that would have 2 been exported. Do you recall those? 3 MR. HILDEBRAND: Oh, yes, I recall the question. I 4 know the water isn't going to be wasted; it doesn't 5 disappear. It is still in the system. 6 MR. HERRICK: And, of course, are there any downstream 7 benefits past the diverters in the South and Central Delta 8 that that water might cause? 9 MR. BIRMINGHAM: Objection. Ambiguous. 10 C.O. STUBCHAER: Rephrase the question. 11 MR. HERRICK: Certainly. 12 If that water is not used or available -- if that water 13 is not used by Delta diverters, are there other beneficial 14 uses that that water might be put to? 15 MR. HILDEBRAND: Yes. 16 C.O. STUBCHAER: That water being the water that flowed 17 northerly because it wasn't used? 18 MR. HERRICK: Yes. 19 C.O. STUBCHAER: In your question of export you were 20 pointing, referring, to the federal pumps. Did your 21 question really include all the state as well as the federal 22 pumps? 23 MR. HERRICK: Yes, just for ease of the discussion 24 rather than have compound or go through double the 25 questions, I was just referring to the federal. CAPITOL REPORTERS (916) 923-5447 9086 1 But, Mr. Hildebrand, that is the same principle 2 involved if we are stalking about the state pumps? 3 MR. HILDEBRAND: Same principle. 4 C.O. STUBCHAER: If the state pumps were pumping water 5 for the federal agency, as they sometimes do, then they in 6 effect would still be there? 7 MR. HERRICK: Would you agree with that statement, Mr. 8 Hildebrand? 9 MR. HILDEBRAND: Yes, except in so far as the state 10 would be taking a different point in the tide. 11 MR. HERRICK: Mr. Hildebrand, there were also 12 questions by Mr. Birmingham regarding the contribution to 13 the water quality problem caused by east side San Joaquin 14 River activity. Do you recall those questions? 15 MR. HILDEBRAND: Yes. 16 MR. HERRICK: Are you familiar with the sources of 17 salinity that eventually reach Vernalis? 18 MR. HILDEBRAND: Yes. 19 MR. HERRICK: Is one of those sources the natural 20 runoff from the east side tributaries? 21 MR. HILDEBRAND: Yes. The salt load that comes from 22 the east side is substantial, but it comes in along with 23 ample dilution so that it doesn't affect the compliance with 24 the Vernalis standard. 25 MR. HERRICK: Mr. Hildebrand, Mr. Brandt asked you a CAPITOL REPORTERS (916) 923-5447 9087 1 few questions about South Delta Number 12, which is the 2 SJRIO? 3 MR. HILDEBRAND: Yes. 4 MR. HERRICK: Without being repetitive, there were some 5 questions involved with Table 7. Do you recall that? 6 MR. HILDEBRAND: Yes. 7 MR. HERRICK: Mr. Hildebrand, Table 7 -- excuse me, 8 South Delta Number 12 also has text, not just a table; is 9 that correct? 10 MR. HILDEBRAND: Yes. 11 MR. HERRICK: As you understand, the text involved in 12 South Delta 12 explains the results of the modeling? 13 MR. HILDEBRAND: Yes. 14 MR. HERRICK: On Table 7 of that exhibit various model 15 runs are listed; is that correct? 16 MR. HILDEBRAND: That's right. 17 MR. HERRICK: Your proposal, which has been called the 18 Comprehensive Plan in your testimony, that doesn't deal 19 with all the runs that have been done; is that correct? 20 MR. HILDEBRAND: That's right. 21 MR. HERRICK: Is it your understanding that Table 7 22 gives you a base case against which to examine the various 23 runs that were done? 24 MR. HILDEBRAND: That's right. 25 MR. HERRICK: Mr. Hildebrand, which run, for clarity, CAPITOL REPORTERS (916) 923-5447 9088 1 then, is the one that you have considered when you developed 2 your Comprehensive Plan? 3 MR. HILDEBRAND: We focused on Number 16. 4 MR. HERRICK: Run Number 16 is on Table 7; is it not? 5 MR. HILDEBRAND: That's right. 6 MR. HERRICK: Mr. Hildebrand, using that run, Number 7 16, you are able to compare it with the base run, which is 8 also on Table 7? 9 MR. HILDEBRAND: That's right. As I explained, the 10 differences between the numbers on the base run and the 11 numbers on Run 16 are more significant than the total 12 magnitude of the numbers because none of these models are 13 precise and accurate in prediction. 14 MR. HERRICK: Mr. Hildebrand, do you believe that the 15 modeling done which resulted in South Delta Number 12 16 indicates there is a water savings by using recirculation? 17 MR. HILDEBRAND: Yes. In the case of a normal year, 18 the water savings is on the order of 105,000 acre-feet. 19 MR. HERRICK: Mr. Hildebrand, if the modeling 20 assumptions used to produce SJRIO were different than the 21 other model runs that have been used or referred to in these 22 proceedings, does that change your opinion as to whether or 23 not there would be savings? 24 MR. HILDEBRAND: Would you repeat that? 25 MR. HERRICK: Did the model assumptions that were used CAPITOL REPORTERS (916) 923-5447 9089 1 to produce SJRIO, are they the same model assumptions as in 2 the other models that have been referred to in these 3 proceedings? 4 MR. HILDEBRAND: No. For example, Mr. Steiner's and 5 also the DWR model have predetermined anticipations as to 6 the quality relationship at Vernalis, and those are actually 7 altered by the very proposals that are in the San Joaquin 8 River Agreement, for example. So that that model result 9 doesn't reflect the fact that they have not adopted the flow 10 salinity ratio to conform to the changes that are being 11 made. Whereas, the SJRIO does do that. 12 MR. HERRICK: Mr. Hildebrand, Mr. Brandt also asked you 13 some questions with regard to whether or not the Bureau was 14 in agreement with the barriers as being the best solution 15 for certain problems in the South Delta. Do you recall 16 that? 17 MR. HILDEBRAND: Will you say that again? 18 MR. HERRICK: Mr. Brandt asked you questions regarding 19 your statement that the Bureau wouldn't admit in public that 20 the barrier program was the best solution; is that correct? 21 MR. HILDEBRAND: That's correct, yes. 22 MR. HERRICK: Mr. Hildebrand, the barrier program 23 doesn't solve all the San Joaquin River or South Delta 24 problems, does it? 25 MR. HILDEBRAND: No. CAPITOL REPORTERS (916) 923-5447 9090 1 MR. HERRICK: What problems is that program meant to 2 address? 3 MR. HILDEBRAND: The barrier program addresses the 4 water level problem. It addresses the circulation problem, 5 the stagnant reach problem, which we have in the South Delta 6 in certain areas which makes it impossible to control water 7 quality. They reduce the salinity in the DMC, which in turn 8 then reduces the salt load that comes into the river. 9 MR. HERRICK: Mr. Hildebrand, this, I will just say, 10 barrier promise is as a result of a lawsuit that South Delta 11 filed in 1982; is that correct? 12 MR. HILDEBRAND: That's right. 13 MR. HERRICK: As a result of that lawsuit, DWR, USBR 14 and SDWA sat down and worked out a proposed resolution? 15 MR. HILDEBRAND: That's correct. 16 MR. HERRICK: That resolution was memorialized in a 17 document known as the Draft Contract; is that correct? 18 MR. HILDEBRAND: That's right. 19 MR. HERRICK: That Draft Contract does set forth an 20 outline for creating the barrier program? 21 MR. HILDEBRAND: Yes. 22 MR. HERRICK: Does that draft contract also anticipate 23 the parties continuing negotiations with regard to the other 24 issues of the suit? 25 MR. HILDEBRAND: That's right. CAPITOL REPORTERS (916) 923-5447 9091 1 MR. HERRICK: Were those other issues the amount and 2 quality of water coming down on the San Joaquin River? 3 MR. HILDEBRAND: That's right. 4 MR. HERRICK: Mr. Hildebrand, as part of that process 5 resulting from that lawsuit, do you meet regularly with 6 Bureau and DWR personnel? 7 MR. HILDEBRAND: Endlessly, for years. 8 MR. HERRICK: Mr. Hildebrand, do you have an 9 understanding as to whether or not the Bureau is in 10 agreement to sign this document? 11 MR. HILDEBRAND: The Bureau has never agreed to sign 12 it. It was years and years before they even -- before the 13 regional portion of the Bureau even asked the Washington 14 bosses to agree to it, and they have had no response, to my 15 knowledge, when they did finally make the request. 16 MR. HERRICK: Mr. Hildebrand, let me just back up on 17 that for a moment. Is it your understanding, then, that the 18 approval of that Draft Contract first goes through some sort 19 of local approval and then gets sent to Washington D.C. for 20 other approval? 21 MR. HILDEBRAND: That is my understanding. 22 MR. HERRICK: Is it your understanding that the local 23 level of the Bureau has approved that and sent it to 24 Washington, D.C.? 25 MR. HILDEBRAND: Yes. CAPITOL REPORTERS (916) 923-5447 9092 1 MR. HERRICK: Do you recall when that occurred? 2 MR. HILDEBRAND: I think about two years ago. 3 MR. HERRICK: Mr. Hildebrand, are negotiations 4 regarding the amount of water and the quality of water 5 coming down the San Joaquin, are those negotiations 6 continuing? 7 MR. HILDEBRAND: No. We were stonewalled. It become 8 futile to go on meeting. 9 C.O. STUBCHAER: Mr. Herrick, how much more time do you 10 require for your redirect? 11 MR. HERRICK: I probably have an hour. 12 C.O. STUBCHAER: Let's take our morning break. 13 (Break taken.) 14 C.O. STUBCHAER: Let's come back to order, please. 15 Mr. Herrick, you want to resume your redirect 16 examination? 17 MR. HERRICK: Thank you, Mr. Chairman. 18 Mr. Hildebrand, do you recall the questions that were 19 asked of you by Mr. O'Laughlin regarding what principles you 20 took into account in developing your Comprehensive Plan? 21 MR. HILDEBRAND: Yes. 22 MR. HERRICK: Do you recall that some of the principles 23 you listed were water rights, reasonableness doctrine, 24 perhaps mitigation of effects caused by some parties? 25 MR. HILDEBRAND: Yes. CAPITOL REPORTERS (916) 923-5447 9093 1 MR. HERRICK: Mr. Hildebrand, to your knowledge, has 2 the issue of whether or not public trust needs may supersede 3 a water right, has that been decided? 4 MR. HILDEBRAND: Not to my knowledge. 5 MR. HERRICK: In your Comprehensive Plan are you 6 suggesting how that question may be decided? 7 MR. HILDEBRAND: In the Comprehensive Plan I think that 8 the Comprehensive Plan is compatible with meeting both the 9 water rights and the public trust consumptive rights and, 10 therefore, the issue is avoided. 11 MR. HERRICK: Mr. Hildebrand, to examine this list of 12 principles that you applied, let's take a hypothetical. We 13 heard testimony in prior phases regarding the lack of water 14 in Old and Middle Rivers at some times? Do you recall 15 that? 16 MR. HILDEBRAND: Yes. 17 MR. HERRICK: Mr. Hildebrand, if there is a lack of 18 water, let's say if Old River and Middle River are dry, do 19 you believe there is surplus water in the Delta for export? 20 MR. HILDEBRAND: No. 21 MR. HERRICK: Mr. Hildebrand, if one possible method of 22 implementing the 1995 Water Quality Control Plan uses water 23 in one manner and second alternative has a multiple use of 24 that water, do you have an opinion on which is more 25 reasonable than the other? CAPITOL REPORTERS (916) 923-5447 9094 1 MR. HILDEBRAND: It seems to me that we should drive to 2 achieve all the desired -- meeting all the desired standards 3 and water rights with the least demand on the overall 4 system. So that it becomes unreasonable use of water if you 5 provide the flows in the manner that uses more water than is 6 necessary. 7 MR. HERRICK: Mr. Hildebrand, if some actions resulting 8 from the implementation of these alternatives cause harm to 9 senior water right holders, do you believe that those senior 10 water right holders should still be protected? 11 MR. HILDEBRAND: Yes. 12 MR. HERRICK: Mr. Hildebrand, you were also asked 13 questions about whether or not your Comprehensive Plan deals 14 with or dealt with the X2 standard. Do you recall that? 15 MR. HILDEBRAND: Yes. 16 MR. HERRICK: Do you recall that the San Joaquin River 17 Agreement provides therein that the state or federal 18 projects will take care of that probably out of the 19 Sacramento system? 20 MR. HILDEBRAND: I don't recall the exact wording in 21 the -- in that. However, the San Joaquin River Agreement 22 does not propose to comply with the difference in Vernalis 23 flow that the control plan calls for depending on the 24 location of X2. 25 MR. HERRICK: Is your understanding that the San CAPITOL REPORTERS (916) 923-5447 9095 1 Joaquin River Agreement does not make a specific 2 contribution toward X2 from the San Joaquin River system? 3 MR. HILDEBRAND: That's right. 4 MR. HERRICK: Is that the same with your Comprehensive 5 Plan, Mr. Hildebrand? 6 MR. HILDEBRAND: Our Comprehensive Plan can provide the 7 difference in San Joaquin flow that is proposed in the 8 control plan. 9 MR. HERRICK: Mr. Hildebrand, you were asked questions 10 regarding South Delta Water Agency Number 14, which is the 11 summary of reductions caused by the CVP. Do you recall 12 that? 13 MR. HILDEBRAND: I am sure I remember the document. 14 MR. HERRICK: Referring to the document out of the 1980 15 report which lists the reductions in flow on the San Joaquin 16 River. 17 MR. HILDEBRAND: Yes. 18 MR. HERRICK: Do you recall Mr. O'Laughlin asked you 19 about the effects of the CVP in a certain dry year type? Do 20 you recall that? 21 MR. HILDEBRAND: Yes. 22 MR. HERRICK: In your answers to his questions you 23 said that, of course, if the effect was this low amount that 24 was referenced, that should be the amount that the Bureau is 25 required to make up, not more than that. Do you recall CAPITOL REPORTERS (916) 923-5447 9096 1 that? 2 MR. HILDEBRAND: I recall that, yes. 3 MR. HERRICK: Mr. Hildebrand, do the federal export 4 pumps also affect the flow in the South Delta? 5 MR. HILDEBRAND: Yes, they do. 6 MR. HERRICK: Do they effect the water levels in the 7 South Delta? 8 MR. HILDEBRAND: Yes. 9 MR. HERRICK: So in a dry year would the amount of 10 mitigation that the Bureau might be responsible for, could 11 that be greater than just the reduction in flow that they 12 have caused? 13 MR. HILDEBRAND: Yes. Both as regards water levels and 14 as regards the affect on salinity. 15 MR. HERRICK: Mr. Hildebrand, you were also asked 16 questions whether or not you consulted with any fishery 17 agencies regarding biological opinions or endangered 18 species. Do you recall that? 19 MR. HILDEBRAND: Yes. 20 MR. HERRICK: Mr. Hildebrand, is it your understanding 21 that the biological opinion is a document issued by a 22 certain state or federal agency expressing its opinion that 23 if a project or an action is taken in a certain manner, it 24 will, therefore, not further threaten an endangered or 25 threatened species? CAPITOL REPORTERS (916) 923-5447 9097 1 MR. HILDEBRAND: Yes. 2 MR. HERRICK: It is your understanding that rather than 3 a requirement to operate that way, it is an approval to 4 operate in some manner? 5 MR. HILDEBRAND: That is my understanding. 6 MR. HERRICK: Mr. Hildebrand, you are familiar with the 7 San Joaquin River Agreement, are you not? 8 MR. HILDEBRAND: Yes. 9 MR. HERRICK: In that agreement there are certain flows 10 and export limitations set forth? 11 MR. HILDEBRAND: Yes. 12 MR. HERRICK: Mr. Hildebrand, are you familiar with the 13 biological opinion for the Delta smelt? 14 MR. HILDEBRAND: Yes. 15 MR. HERRICK: Mr. Hildebrand, in your opinion, are the 16 requirements for flow in the San Joaquin River Agreement the 17 same as the flows set forth in the biological opinion for 18 Delta smelt? 19 MR. HILDEBRAND: I don't think so. 20 MR. HERRICK: Mr. Hildebrand, are the export levels or 21 possibilities set forth in the San Joaquin River Agreement 22 the same as the export limitations contained in the 23 Biological Opinion? 24 MR. HILDEBRAND: I don't believe so. 25 MR. HERRICK: Mr. Hildebrand, in your opinion if the CAPITOL REPORTERS (916) 923-5447 9098 1 San Joaquin River Agreement is adopted by this Board, do you 2 believe that there will need to be reconsultation with 3 regard to the existing Biological Opinion? 4 MR. HILDEBRAND: I believe so. The Biological Opinion 5 is based on a particular operating scenario. If you change 6 that, then you need to reexamine it. 7 MR. HERRICK: Mr. Hildebrand, your Comprehensive Plan 8 discusses the possible need for reconsultation on the same 9 Biological Opinion; is that correct? 10 MR. HILDEBRAND: That's right. 11 MR. HERRICK: Of course, you can't predict what the 12 fishery agency will do on any reconsultation, can you? 13 MR. HILDEBRAND: No. Except insofar as I think that 14 it has been established that the existing biological 15 opinions were based on misunderstandings regarding 16 hydrology; and, presumably, a new opinion would correct 17 those misunderstandings. 18 MR. HERRICK: Your Comprehensive Plan includes more 19 than just recirculation, does it not? 20 MR. HILDEBRAND: Yes. 21 MR. HERRICK: I believe one of your -- part of your 22 testimony states that in the absence of compliance with the 23 biological opinion or changed biological opinion, other 24 actions can be taken; is that correct? 25 MR. HILDEBRAND: Yes. CAPITOL REPORTERS (916) 923-5447 9099 1 MR. HERRICK: So, Mr. Hildebrand, your Comprehensive 2 Plan is not dependent upon any change in the biological 3 Opinion of the Delta smelt, is it? 4 MR. HILDEBRAND: No. 5 MR. HERRICK: Mr. Hildebrand, excuse me for being 6 repetitive, but there still seems to be some confusion about 7 tidal barriers. Would you agree that when the three South 8 Delta tidal barriers are in place, that the flow coming down 9 the San Joaquin River is not directed toward the South 10 Delta, rather it goes downstream towards Stockton? 11 MR. HILDEBRAND: That's correct. 12 MR. HERRICK: That is the purpose of those barriers, is 13 it not? 14 MR. HILDEBRAND: Yes. 15 MR. HERRICK: Mr. Hildebrand, Mr. O'Laughlin asked you 16 questions with regards to SJRGA Number 29, and excuse me if 17 I am wrong, but that was Attachment 2 or A to that 18 document. Anyway, there was a chart showing water needed to 19 meet water quality requirements on the San Joaquin River. 20 Do you recall that? 21 MR. HILDEBRAND: I believe that those figures were to 22 meet both water quality and the fish flows. 23 MR. HERRICK: Just so there is no confusion, the fish 24 flows and the agricultural objectives measured at Vernalis, 25 those are both labeled water quality requirements in the '95 CAPITOL REPORTERS (916) 923-5447 9100 1 plan; is that correct? 2 MR. HILDEBRAND: Yes. 3 MR. HERRICK: It is your understanding that that chart 4 that was provided shows the additional amount of water 5 needed in order to comply with the '95 plan objectives; is 6 that correct? 7 MR. HILDEBRAND: It is my understanding that those 8 flows were the additional water to meet both of those 9 requirements, yes. 10 MR. HERRICK: That was the amount of flow needed 11 compared to some base case; is that correct? 12 MR. HILDEBRAND: Yes. I am not clear as to what the 13 base case was. 14 MR. HERRICK: That base case was discussed and 15 generally agreed upon by the people who developed and then 16 produced SJRIO, correct? 17 MR. HILDEBRAND: Yes. 18 MR. HERRICK: Mr. Hildebrand, that document did not 19 show the amount of water required to be recycled -- excuse 20 me, recirculated in order to provide your Comprehensive 21 Plan, did it? 22 MR. HILDEBRAND: No. 23 MR. HERRICK: I believe we had an amount of 24 approximately 34,000 acre-feet in March that was shown on 25 that chart. Do you recall that? CAPITOL REPORTERS (916) 923-5447 9101 1 MR. HILDEBRAND: Yes. 2 MR. HERRICK: Mr. Hildebrand, it is your understanding 3 that that is the amount of water that would be needed as 4 opposed to based on a base case in order to meet the water 5 quality requirements in March? 6 MR. HILDEBRAND: I think the 34,000 was the amount 7 needed both on the flow and the quality. 8 MR. HERRICK: Part of those flows -- one of those was 9 meeting the Vernalis standards? 10 MR. HILDEBRAND: Yes. 11 MR. HERRICK: By Vernalis we mean the salinity standard 12 measured at that point? 13 MR. HILDEBRAND: Yes. 14 MR. HERRICK: Mr. Hildebrand, your Comprehensive Plan 15 proposes to shift some of the initial springtime drainage in 16 the valley from March to April or May; is that correct? 17 MR. HILDEBRAND: Yes. Under our plan you would not 18 need that amount for water quality that is included in that 19 figure. 20 MR. HERRICK: The purpose of that shift of the drainage 21 is to take advantage of the dilution capabilities of the 22 spring fishery flow; is that correct? 23 MR. HILDEBRAND: Yes. 24 MR. HERRICK: If you did that, what happens to the need 25 for water quality dilution water in March? CAPITOL REPORTERS (916) 923-5447 9102 1 MR. HILDEBRAND: In March the requirement goes down. 2 MR. HERRICK: Mr. Hildebrand, did that SJRGA Number 29, 3 did that slow that effect that you are proposing? 4 MR. HILDEBRAND: I don't believe so. 5 MR. HERRICK: Mr. Hildebrand, if those drainage flows 6 are shifted into April or May, that shift in drainage also 7 goes towards compliance with the fishery flow for the pulse; 8 is that correct? 9 MR. HILDEBRAND: The volume would be added to the 10 available flow for fishery, yes. 11 MR. HERRICK: We don't want to overstate that -- 12 MR. HILDEBRAND: It is not a very big quantity. 13 MR. HERRICK: Given that shift of flows, that would 14 also affect the amount of water needed in April or May to 15 meet the pulse flow; is that correct? 16 MR. HILDEBRAND: That's right. 17 MR. HERRICK: Mr. Hildebrand, this discussion we just 18 had, that is explained in South Delta Number 12, which is 19 the SJRIO report, is it not? 20 MR. HILDEBRAND: That's right. 21 MR. HERRICK: That report doesn't say that you need to 22 recirculate in 1993 34,000 acre-feet of water in order to 23 meet any standard? 24 MR. HILDEBRAND: No. 25 MR. HERRICK: That is cleared up also -- barely cleared CAPITOL REPORTERS (916) 923-5447 9103 1 up also in Table 7 of that report; is that correct? 2 MR. HILDEBRAND: Yes. It is merely a difficult chart 3 to read, but it is there. 4 MR. HERRICK: If the Board will bear with me, some of 5 these questions I have gotten answered as we go along. 6 Mr. Hildebrand, you were asked a hypothetical with 7 regard to additional water being stored by TID in the event 8 the recirculation program is Initiated. Do you recall that? 9 MR. HILDEBRAND: Yes. 10 MR. HERRICK: Is that a valuable hypothetical in that 11 you believe that the recirculation plan could result in the 12 total amount of savings -- a total amount of savings 13 accruing to TID? 14 MR. HILDEBRAND: To explain, the total savings is the 15 amount that we would recirculate, which in a normal year, 16 typical normal year, would be about 105,000 acre-feet, plus 17 the 12,000 savings in New Melones released for water 18 quality. So if you provide that water in some other manner, 19 you are taking that much out of the system that is no longer 20 available for other purposes. 21 MR. HERRICK: Mr. Hildebrand, the savings resulting 22 from the recirculation can be a savings in various 23 reservoirs; is that correct? 24 MR. HILDEBRAND: Yes. Depends on where it would 25 otherwise be taken. CAPITOL REPORTERS (916) 923-5447 9104 1 MR. HERRICK: You were asked questions about how you 2 might ask the Board to require any particular reservoir to 3 make the releases of the savings. Do you recall those 4 questions? 5 MR. HILDEBRAND: Yes. 6 MR. HERRICK: Mr. Hildebrand, isn't it more correct 7 that the point you were making is that in the absence of the 8 purchases on the tributaries, those stores of water would 9 operate as before and flows would reflect historical 10 operations? 11 MR. HILDEBRAND: That's right. 12 MR. HERRICK: If those historical operations are 13 maintained, that allows people to predict whether or not the 14 water quality at Vernalis would be met; is that correct? 15 MR. HILDEBRAND: That's right. 16 MR. HERRICK: By allowing us to predict that, we would 17 guess as to how much water might be needed from New Melones 18 to satisfy the Bureau's requirements? 19 MR. HILDEBRAND: That's right. 20 MR. HERRICK: Mr. Hildebrand, you were asked some 21 questions about the channel depletion needs in the South 22 Delta. Do you recall that? 23 MR. HILDEBRAND: Yes. 24 MR. HERRICK: You were asked various questions trying 25 to differentiate between a riparian need and a channel CAPITOL REPORTERS (916) 923-5447 9105 1 depletion need; is that correct? 2 MR. HILDEBRAND: Yes. 3 MR. HERRICK: Mr. Hildebrand, does the operation of the 4 export pumps affect the ability of the riparians to divert 5 the water that would be in the channels in absence of the 6 export pumps? 7 MR. HILDEBRAND: Yes. The drawdowns sometimes make it 8 so we cannot divert. 9 MR. HERRICK: Is that drawdown both upstream -- is that 10 drawdown upstream of the point where the federal pumps exist? 11 MR. HILDEBRAND: The drawdown modeling in the test data 12 both show that the affect of that drawdown reduces the water 13 levels all the way up to Vernalis and throughout almost all 14 of the South Delta channels. 15 MR. HERRICK: Based on your answer, then, does that 16 include areas both upstream and downstream of the point 17 where the federal pumps are located? 18 MR. HILDEBRAND: Yes. 19 MR. HERRICK: You believe that the operation of the 20 federal pumps affects riparian diverters in the South Delta? 21 MR. HILDEBRAND: Yes. 22 MR. HERRICK: Mr. Hildebrand, you were asked whether or 23 not you could quantify a public trust need as separate from 24 a riparian need. Do you recall that? 25 MR. HILDEBRAND: Yes. CAPITOL REPORTERS (916) 923-5447 9106 1 MR. HERRICK: Mr. Hildebrand, have you done any 2 calculations to determine what a public trust need may be 3 for the South Delta? 4 MR. HILDEBRAND: In a way, yes. We have determined how 5 much total depletion of water occurs in those channels, 6 including both the consumptive use by crops and the 7 consumptive use by the public trust uses. And some 8 consumptive use, for example, by the City of Tracy which 9 follows laws and things of that sort. 10 MR. HERRICK: Mr. Hildebrand, it is possible, there are 11 times when the riparians, diverters, in the South Delta 12 don't need water from any particular channel? 13 MR. HILDEBRAND: It has to come from the channel where 14 the diversion facility is located. 15 MR. HERRICK: The question I am asking, at some times 16 there may not be riparian diversions; is that correct? 17 MR. HILDEBRAND: Yes. Although the irrigation goes on 18 pretty much all around. It is extremely variable in 19 amount. As I mentioned before, a particular example is that 20 the asparagus farmers, whom there are quite a few in the 21 South Delta, typically recharge their entire root zone, 22 which is a deep root zone, in December and early January. 23 MR. HERRICK: Mr. Hildebrand, let's take a 24 hypothetical, that at one of the times when Old River or 25 Middle River is dry that at some short time or some brief CAPITOL REPORTERS (916) 923-5447 9107 1 moment there is no riparian need at that moment. Let's 2 start with that as a hypothetical. 3 Do you believe there is a public trust need for water 4 in those channels even in the absence of a riparian 5 diversion? 6 MR. HILDEBRAND: I think there would be, yes. We have 7 riparian vegetation, and that consumes water. And if you 8 have the channel dry, you don't meet that public trust 9 need. 10 MR. HERRICK: Is your Comprehensive Plan proposing any 11 amount or levels in order to meet public trust needs? 12 MR. HILDEBRAND: Our plan would require whatever is 13 required. 14 MR. HERRICK: You were also asked questions about 15 whether or not the South Delta diverters are causing harm to 16 public trust needs in the South Delta. Do you recall that? 17 MR. HILDEBRAND: Yes. 18 MR. HERRICK: Mr. Hildebrand, you have been a Director 19 of South Delta Water Agency since its inception; is that 20 right? 21 MR. HILDEBRAND: That's right. 22 MR. HERRICK: Approximately how many years has that 23 been? 24 MR. HILDEBRAND: I think it was in the late '70s. 25 MR. HERRICK: A while? CAPITOL REPORTERS (916) 923-5447 9108 1 MR. HILDEBRAND: A while. 2 MR. HERRICK: During that time, Mr. Hildebrand, has 3 anybody made a complaint to the South Delta Water Agency 4 that the constituent riparian diverters are harming public 5 trust uses? 6 MR. HILDEBRAND: No. 7 MR. HERRICK: During that same time, has South Delta 8 riparian diverters claimed that they are being harmed by the 9 Federal Project? 10 MR. HILDEBRAND: Yes. 11 MR. HERRICK: Mr. Hildebrand, you were are also asked 12 questions with regard to the barrier operations. Does the 13 South Delta Water Agency have a position on whether or not 14 the barriers should be operated at certain times or all the 15 year or not all year? Can you clarify that, please? 16 MR. HILDEBRAND: We need to operate the three tidal 17 barriers throughout the year, except when high flows 18 preclude their operation. 19 MR. HERRICK: Do the existing permits for those 20 barriers allow operations as needed? 21 MR. HILDEBRAND: No. 22 MR. HERRICK: Mr. Hildebrand, you were asked questions 23 with regard to the effects of siltation in the South Delta. 24 Do you recall that? 25 MR. HILDEBRAND: Yes. CAPITOL REPORTERS (916) 923-5447 9109 1 MR. HERRICK: One of those questions discussed whether 2 or not West Side Irrigation District had complained of that 3 issue. 4 MR. HILDEBRAND: I don't recall whether it was that 5 explicit, but, yes, we have been questioned about that. 6 MR. HERRICK: Mr. Hildebrand, you were present when Mr. 7 Alvarez gave testimony on Phase V on behalf of South Delta? 8 MR. HILDEBRAND: Yes. 9 MR. HERRICK: Do recall him specifying, I think it was 10 last year, water level problems late in the year? 11 MR. HILDEBRAND: Yes. 12 MR. HERRICK: That was at a time -- was that at a time 13 when any of the barriers were installed? 14 MR. HILDEBRAND: They were not all three installed. 15 MR. HERRICK: So there are water level problems that 16 occur outside the time the barriers are in operation; is 17 that correct? 18 MR. HILDEBRAND: That's right. 19 MR. HERRICK: Mr. Hildebrand, you were asked questions 20 about whether or not you analyzed the harm to South Delta 21 diverters due to water quality violations as compared to the 22 effects of the implementation of your Comprehensive Plan. 23 Do you recall that? 24 MR. HILDEBRAND: Yes. 25 MR. HERRICK: Mr. Hildebrand, are you generally CAPITOL REPORTERS (916) 923-5447 9110 1 familiar with the Notice of the Hearings, the notice for 2 these hearings? 3 MR. HILDEBRAND: I have read them all; it's been quite 4 a while. These hearings didn't just start. 5 MR. HERRICK: Mr. Hildebrand, would you agree that the 6 1995 Water Quality Control Plan, although it did make a 7 change to the salinity standard, did not generally change 8 the requirements? 9 MR. HILDEBRAND: The -- a lower standard from April 10 through August and a higher standard in the winter than 11 previously occurred. The total water demand to meet those 12 has not altered significantly. 13 MR. HERRICK: The purpose of these hearings is to 14 implement that '95 plan; is that correct? 15 MR. HILDEBRAND: Yes. 16 MR. HERRICK: The purpose of these hearings is not to 17 determine what level of protection is needed for beneficial 18 uses? 19 MR. HILDEBRAND: No. That was done in the previous 20 hearing. 21 MR. HERRICK: In fact, the agricultural standard 22 originally was a result of hearings some time ago; is that 23 correct? 24 MR. HILDEBRAND: That's right. 25 MR. HERRICK: So, Mr. Hildebrand, is it your CAPITOL REPORTERS (916) 923-5447 9111 1 understanding that none of the phases of this proceeding was 2 intended to quantify any harm to South Delta due to water 3 quality violations? 4 MR. HILDEBRAND: No. That was done at the time the 5 standards were established. 6 MR. HERRICK: Mr. Hildebrand, is it your opinion that a 7 violation of those standards is, then, necessarily harm to 8 Delta users? 9 MR. HILDEBRAND: It definitely is. We felt we were 10 only going to get marginal protection out of those 11 standards. 12 MR. HERRICK: The '95 plan did make significant changes 13 for flows required for fishery purposes; is that correct? 14 MR. HILDEBRAND: That's right. 15 MR. HERRICK: Isn't it the intent of your testimony to 16 point out that, if you increase the flows for fisheries, 17 there can be corresponding impacts in the ability to meet 18 other water quality objectives; is that correct? 19 MR. HILDEBRAND: Yes, water quality and quantity. 20 MR. HERRICK: Mr. Hildebrand, that is one of your 21 comments with regard to SJRA, is it not? 22 MR. HILDEBRAND: That's right. 23 MR. HERRICK: Is it your opinion that by not specifying 24 when and how the water is to be provided for the pulse flow 25 under SJRA, there can and probably will be adverse effects CAPITOL REPORTERS (916) 923-5447 9112 1 of the ability to meet the water quality standard at 2 Vernalis? 3 MR. HILDEBRAND: That's right. We testified earlier 4 that we feel if you are going to establish flow requirements 5 at one time of the year, you have to establish them on a 6 year-round basis or you merely get a shift from one time of 7 the year to another. 8 MR. HERRICK: Mr. Hildebrand, do you recall questions 9 regarding channel depletion needs of the South Delta? 10 MR. HILDEBRAND: Yes. 11 MR. HERRICK: There was a question as to how SDWA 22, 12 which is the letter setting forth those, a question 13 regarding how that was developed? 14 MR. HILDEBRAND: Yes. 15 MR. HERRICK: Mr. Hildebrand, earlier on we talked 16 about the process that developed from the SDWA's lawsuit 17 against the Bureau beginning in 1992? 18 MR. HILDEBRAND: 1982. 19 MR. HERRICK: 1982, thank you. 20 One of the parties, defendants, was DWR, not just the 21 Bureau, correct? 22 MR. HILDEBRAND: That's right. 23 MR. HERRICK: Mr. Hildebrand, the Draft Contract which 24 purports to settle that lawsuit includes various appendices 25 setting forth modeling and other investigations done by the CAPITOL REPORTERS (916) 923-5447 9113 1 parties; is that correct? 2 MR. HILDEBRAND: That's correct. 3 MR. HERRICK: In those appendices is it calculated what 4 those channel depletions for the South Delta are? 5 MR. HILDEBRAND: The appendices focus on the July 6 situation since that was the most severe requirement on the 7 water capture requirement for the barriers. However, as was 8 indicated in earlier testimony, we have figures that have 9 been agreed to constantly being in use by DWR and the Bureau 10 as to the total depletion in the Delta by months or all 11 months, and we just use those ratios, then, to alter the 12 July figures to other months. 13 MR. HERRICK: When South Delta -- when South Delta 22 14 was originally produced, were you involved in that? 15 MR. HILDEBRAND: Which was 22, now? 16 MR. HERRICK: The cover letter and the listing by 17 months of the channel depletion needs of the South Delta. 18 MR. HILDEBRAND: The part you referred to that came out 19 of the lawsuit? 20 MR. HERRICK: Yes. 21 MR. HILDEBRAND: Yes. 22 MR. HERRICK: Mr. Hildebrand, is it your understanding 23 that those channel depletion amounts, before they were 24 submitted to the Board, were run by representatives of DWR 25 and the Bureau? CAPITOL REPORTERS (916) 923-5447 9114 1 MR. HILDEBRAND: They were agreed to by the three 2 parties. 3 MR. HERRICK: Mr. Hildebrand, you are familiar with -- 4 we discussed earlier the CVPIA, the federal legislation? 5 MR. HILDEBRAND: Yes. Relevant parts of it, not every 6 paragraph. 7 MR. HERRICK: I don't mean to test your memory on it. 8 Mr. Hildebrand, is it understanding that CVPIA requires 9 that the CVP be operated to meet all obligations under state 10 and federal law as well as all decisions of the Water 11 Resources Control Board establishing conditions under 12 applicable licenses and permits? 13 MR. HILDEBRAND: That's correct. 14 MR. HERRICK: We said earlier that you have a general 15 knowledge of Water Code Section 12202; is that correct? 16 MR. HILDEBRAND: Yes. 17 MR. HERRICK: We also said earlier you have a general 18 knowledge of the Bureau permits for New Melones? 19 MR. HILDEBRAND: Yes. 20 MR. HERRICK: Is that the basis of your belief that -- 21 let me start over. 22 Do you believe that those requirements exist -- do you 23 believe that the requirements that are CVPIA exist 24 notwithstanding any plan of implementation of the '95 Water 25 Quality Control Plan? CAPITOL REPORTERS (916) 923-5447 9115 1 MR. HILDEBRAND: Yes. 2 MR. HERRICK: And do you believe that the obligations 3 contained in the New Melones permits exist, notwithstanding 4 any implementation plan of the 1995 Water Quality Control 5 Plan? 6 MR. HILDEBRAND: Yes. 7 MR. HERRICK: So, Mr. Hildebrand, when you made your 8 analysis of the Comprehensive Plan which you set forth, did 9 you take into consideration whether or not there might be 10 some extra cost to the Bureau to comply with state or 11 federal law? 12 MR. HILDEBRAND: No. It seems to me that is an 13 obligation regardless of cost. We did endeavor to show a 14 way of doing it at least cost. 15 MR. HERRICK: Mr. Hildebrand, there was extensive 16 questioning yesterday of you by Mr. O'Laughlin regarding the 17 specifics of a particular year type and needs for 18 recirculation and possible compliance with the Biological 19 Opinion. Do you remember that? 20 MR. HILDEBRAND: Yes. 21 MR. HERRICK: Mr. Hildebrand, is it part of your 22 Comprehensive Plan that all water necessary to meet fishery 23 flows be provided by recirculation? 24 MR. HILDEBRAND: No. We think it should be done to the 25 extent possible with no-net loss to the parties and that, if CAPITOL REPORTERS (916) 923-5447 9116 1 it is possible to do the entire amount in that manner, you 2 then turn to purchases from contractors. 3 MR. HERRICK: Mr. Hildebrand, you did say yesterday 4 that you believe it is appropriate, if not necessary, for 5 there to be reconsultation on the biological opinions no 6 matter what alternative is adopted? 7 MR. HILDEBRAND: Yes. 8 MR. HERRICK: I just want to clarify that the amount of 9 water needed to meet the fishery pulse flow cannot be met by 10 recirculation: are you suggesting then that the flow not be 11 provided? 12 MR. HILDEBRAND: No. We suggest under those 13 circumstances you then have to purchase water. 14 MR. HERRICK: Would you agree that the possibilities, 15 then, are you could work out an amount of water that can be 16 provided through recirculation; is that one possibility? 17 MR. HILDEBRAND: Yes. 18 MR. HERRICK: Another possibility is that there would 19 be reconsultation of the biological opinion changed such 20 that more water may be available through recirculation? 21 MR. HILDEBRAND: Yes. 22 MR. HERRICK: Or one possibility is some water is 23 provided by recirculation and some water is provided some 24 other way? 25 MR. HILDEBRAND: That's right. Our plan has that kind CAPITOL REPORTERS (916) 923-5447 9117 1 of flexibility. 2 MR. HERRICK: Whether or not you need some or all of 3 the water for the fishery pulse flow, you might have to 4 require, get, or purchase water from the -- other than from 5 the tributaries to the San Joaquin River? 6 MR. HILDEBRAND: At some times that would be 7 necessary. 8 MR. HERRICK: The third possibility that you set forth 9 was the water -- a source of water would be that water that 10 has been delivered outside the Bureau's export permits; is 11 that correct? 12 MR. HILDEBRAND: Yes. 13 MR. HERRICK: Of course, you've also tried to be fair 14 about this and expressed a preference for having it done; is 15 that correct? 16 MR. HILDEBRAND: A preference for having it done in the 17 plan that imposes the least burden on any party. 18 MR. HERRICK: In fact, that is why you have as a goal 19 of this program no-net loss to exporters; is that correct? 20 MR. HILDEBRAND: That's right. 21 MR. HERRICK: I want to clarify one issue that was 22 discussed very briefly yesterday. Is it your understanding 23 that the operation of the South Delta tidal barriers is for 24 mitigating the effects of the export pumps? 25 MR. HILDEBRAND: That is the principal purpose of it, CAPITOL REPORTERS (916) 923-5447 9118 1 but it does have other benefits. 2 MR. HERRICK: Of course, it is possible that depending 3 on biological opinions or other -- new species being listed 4 or something else, it is possible that there will be further 5 restrictions placed on export pumping? 6 MR. HILDEBRAND: That is possible. 7 MR. HERRICK: That is possible in any implementation 8 plan of the water quality -- 9 MR. HILDEBRAND: That's right. 10 MR. HERRICK: We heard earlier that you propose that 11 the tidal barriers be linked to export pumping operations; 12 is that correct? 13 MR. HILDEBRAND: Yes. Since the exporters have an 14 obligation not to damage us, if they don't install the 15 barriers, they then have to restrict their pumping in order 16 to avoid hurting us. 17 MR. HERRICK: So, Mr. Hildebrand, it is possible that 18 some sort of restriction on pumping occurs, which causes 19 them to have less export capability than they would under 20 the implementation of the Water Quality Control Plan? 21 MR. HILDEBRAND: Yes. 22 MR. HERRICK: In that event would you still want those 23 tidal barriers to be operating if pumping was decreased? 24 MR. HILDEBRAND: If it -- unless it is decreased to a 25 point where the reduction in water level is within what we CAPITOL REPORTERS (916) 923-5447 9119 1 can tolerate, yes. But even then you forego the other 2 benefits of barriers if you don't put them in. 3 MR. HERRICK: Mr. Hildebrand, do you believe it is 4 appropriate for the barrier operations to be shut down or 5 impaired in order -- during the time when export pumping is 6 ramping up? 7 MR. HILDEBRAND: No. That was done once and that was 8 an intolerable act. 9 MR. HERRICK: Mr. Hildebrand, that decision was made 10 somewhere under the auspices of the ops group, was it not? 11 MR. HILDEBRAND: Yes. 12 MR. HERRICK: We haven't been able to determine quite 13 how that was decided? 14 MR. HILDEBRAND: Well, I think we know in general how 15 that was done and, hopefully, that won't happen again. 16 MR. HERRICK: Mr. Hildebrand, is it an important part 17 of your Comprehensive Plan that restrictions on the Bureau's 18 permits be in place so this sort of interruption of barrier 19 operation does not occur in the future? 20 MR. HILDEBRAND: That's right. 21 MR. HERRICK: Mr. Hildebrand, do any of the other 22 alternatives, including the SRJA, make that sort of 23 protection? 24 MR. HILDEBRAND: No. I should add to what I said a 25 moment ago, that one of the other benefits of the tidal CAPITOL REPORTERS (916) 923-5447 9120 1 barriers operating outside the pulse flow period is the 2 point I made before that we need to protect the smolts that 3 come down before and after the pulse flow, which, according 4 to biologists, there are about 35 percent of the total, and 5 they will provide substantial protection for those smolts. 6 Whereas, any plan that does not provide that protection is 7 going to lose quite a few smolts. 8 MR. HERRICK: Mr. Hildebrand, you were also asked 9 whether or not South Delta opposed the provision of pulse 10 flow water through groundwater pumping or reuse of 11 tailwater. 12 Do you recall that? 13 MR. HILDEBRAND: Yes. 14 MR. HERRICK: Could you explain to the Board, once 15 again, what the South Delta position on that is. 16 MR. HILDEBRAND: If you supply the pulse flow by 17 pumping groundwater or drawing down the reservoir, then at 18 some point in time that drawdown of either the reservoir or 19 the groundwater table has to be replenished. Unless it gets 20 replenished because of a spill, which you can't forecast at 21 the time that you are drawing it down, it will at some point 22 in time decrease flow available in the river system at other 23 times outside of the pulse. 24 MR. HERRICK: So, Mr. Hildebrand, you are taking sort 25 of a global view of available water in the San Joaquin CAPITOL REPORTERS (916) 923-5447 9121 1 watershed; is that correct? 2 MR. HILDEBRAND: Yes. I believe it is important that 3 we all do that in order to make the most reasonable use of 4 water and to resolve the problems of the least impact on any 5 party. 6 MR. HERRICK: I have no further questions. 7 Thank you, Mr. Chairman. 8 C.O. STUBCHAER: Mr. Herrick. 9 Who wishes to have a recross-examination? 10 Brandt, Birmingham, O'Laughlin. 11 C.O. BROWN: Brandt, Birmingham, O'Laughlin. 12 Anyone else? 13 C.O. STUBCHAER: The order is Mr. O'Laughlin. 14 MR. CAMPBELL: Mr. Chairman, can I add my name to the 15 list. 16 C.O. STUBCHAER: The order will be Mr. Campbell, Mr. 17 O'Laughlin, Mr. Birmingham and Mr. Brandt. And just for our 18 information we would like to have an estimate of how much 19 time, an estimate of how much time the cross-examination 20 will take. 21 Mr. Campbell. 22 MR. CAMPBELL: Five minutes. 23 C.O. STUBCHAER: Mr. O'Laughlin. 24 Just an estimate. We are not holding you to it. 25 MR. O'LAUGHLIN: You are not going to hold me to it. CAPITOL REPORTERS (916) 923-5447 9122 1 An hour to an hour and a half. 2 C.O. STUBCHAER: Mr. Birmingham. 3 MR. BIRMINGHAM: An hour. 4 C.O. STUBCHAER: Mr. Brandt. 5 MR. BRANDT: Fairly short, ten minutes. 6 C.O. STUBCHAER: Proceed, Mr. Campbell. 7 ---oOo--- 8 RECROSS-EXAMINATION OF SOUTH DELTA WATER AGENCY 9 BY DEPARTMENT OF FISH AND GAME 10 BY MR. CAMPBELL 11 MR. CAMPBELL: Mr. Hildebrand, I am going to ask you a 12 few questions in response to Mr. Herrick's questions to you 13 about public trust issues in the Delta. 14 He asked you a question about whether public trust 15 needs supersede water rights, and he also asked you whether 16 you are familiar with the Board's hearing notices for this 17 proceeding; is that correct? 18 MR. HILDEBRAND: That's correct. 19 MR. CAMPBELL: Are you aware that the Supplement to 20 Revised Notice of Public Hearing issued by the Board for 21 Phase II-A states that, and I will briefly paraphrase, that 22 the Public Trust Doctrine establishes, and I will quote, 23 "constraints on the exercise of water rights in California"? 24 Are you familiar with that? 25 MR. HILDEBRAND: Yes. CAPITOL REPORTERS (916) 923-5447 9123 1 MR. CAMPBELL: Do you agree with that statement? 2 MR. HILDEBRAND: It is my understanding that there can 3 be a constraint as occurred in the Mono Lake situation, for 4 example, but that it is not a clear priority. It's a matter 5 -- you have to balance the two. 6 MR. CAMPBELL: Excuse me, I didn't catch the last part 7 of the answer. 8 MR. HILDEBRAND: I believe that the ruling is that you 9 have to balance the two. It is not a priority between the 10 two. 11 MR. CAMPBELL: So then, you would agree with me that an 12 entity cannot obtain a vested, paramount or inviolable right 13 to use water in a manner harmful to state fisheries' 14 resources? 15 MR. HILDEBRAND: It is my understanding that at the 16 discretion of the Board or the courts there has to be some 17 balancing, yes. 18 MR. CAMPBELL: What does the Public Trust Doctrine 19 mean, in your opinion? 20 MR. HILDEBRAND: I am not in a position to define it in 21 detail. It includes the general subjects of preserving the 22 ecology. 23 MR. CAMPBELL: Do you know how long the Public Trust 24 Doctrine has existed in jurisprudence? 25 MR. HILDEBRAND: I don't know how long. It's my CAPITOL REPORTERS (916) 923-5447 9124 1 understanding that perhaps the first time that it really 2 came into play was in the Mono Lake determination. 3 MR. CAMPBELL: So you don't know whether or not it had 4 legal antecedents before that case that go back several 5 hundreds of years or thousands of years? 6 MR. HILDEBRAND: Very possibly, but I don't know. 7 MR. CAMPBELL: In preparation for your testimony, did 8 you read California Court of Appeals decision entitled 9 United States versus State Water Resources Control Board? 10 The citation is 1986, 182 Cal App, 3rd, 82, also known as 11 the Racanelli decision? 12 MR. HILDEBRAND: I am aware of the Racanelli decision. 13 MR. CAMPBELL: Can you recite your understanding of 14 what Judge Racanelli said about the Public Trust Doctrine in 15 that case in the water law context? 16 MR. HILDEBRAND: It's been a long time since I read it, 17 but I can't give you a reliable answer, but general. There 18 had to be balancing. 19 MR. CAMPBELL: Do you recall a portion of that decision 20 in which the Court stated, in summary: "The Board's 21 evaluation process was not only a valid exercise of its 22 reserve jurisdiction, but also in retrospect a proper 23 exercise of its public trust authority as confirmed by our 24 high court. The State has an affirmative duty to take the 25 public trust into account in the planning and allocation of CAPITOL REPORTERS (916) 923-5447 9125 1 water resources and to protect public trust uses whenever 2 feasible"? 3 MR. HILDEBRAND: I am aware that sort of language is in 4 there. I couldn't quote it for you from memory. But, 5 again, that says the Board must take it into account. It 6 doesn't say it has a priority. It gets back to balancing. 7 MR. CAMPBELL: Have you read the California Supreme 8 Court decision National Audubon Society versus Superior 9 Court in 1983, and it is at 33, Cal 3rd, 419? 10 MR. HILDEBRAND: I don't recognize that. 11 MR. CAMPBELL: So you don't know whether that decision 12 has any bearing or not on this Board's proceeding? 13 MR. HILDEBRAND: I don't remember whether I had read 14 the decision. I doubt it. 15 MR. CAMPBELL: Are you aware that in the Racanelli 16 decision that the Court referred to public trust needs as 17 nonconsumptive needs? 18 MR. HILDEBRAND: Not sure about that. If public trust 19 needs are both consumptive and nonconsumptive, I don't 20 remember if they distinguished between the two. 21 MR. CAMPBELL: How are they nonconsumptive? 22 MR. HILDEBRAND: In-stream flow, for example, is not 23 consumptive. Whereas, riparian vegetation is consumptive. 24 MR. CAMPBELL: I have no further questions. 25 C.O. STUBCHAER: Thank you, Mr. Campbell. CAPITOL REPORTERS (916) 923-5447 9126 1 Mr. O'Laughlin. 2 MR. CAMPBELL: Thank you. 3 C.O. STUBCHAER: Mr. O'Laughlin. 4 MR. O'LAUGHLIN: Chairman Stubchaer, if we could, since 5 mine is going to take much longer than the remaining half 6 hour, Mr. Brandt has only a few questions, maybe it would be 7 better off if we get him done before lunch, and I can come 8 back after lunch. 9 MR. BRANDT: Your choice. I'm ready; he's ready. 10 C.O. STUBCHAER: If you volunteer and offer to do it, 11 I will allow it. But otherwise -- 12 MR. O'LAUGHLIN: He is volunteering. He'd been more 13 than happy to do it. 14 MR. BRANDT: I have no questions. 15 C.O. STUBCHAER: All right. Mr. O'Laughlin. 16 No rest for the weary. 17 MR. BIRMINGHAM: Mr. Chairman, given the hour and the 18 fact that Mr. Herrick opened up a broad range of subjects on 19 his redirect, I wonder if it would be appropriate for us to 20 take a recess now so we can come back early from lunch. I 21 know that I will use the lunch hour to try and refine the 22 questions that I will ask of Mr. Hildebrand on recross. And 23 it might actually expedite the process if Mr. O'Laughlin 24 would be given the same opportunity. I don't know. 25 C.O. STUBCHAER: Mr. Nomellini. CAPITOL REPORTERS (916) 923-5447 9127 1 MR. NOMELLINI: I think that's a bad idea. O'Laughlin 2 is ready to go. He's right there. If Mr. Birmingham wants 3 to take the time to prepare, he can go out in the hallway 4 over here and brush up in-between. If we start screwing up 5 the schedule, then we are going to have hunger pangs about 6 midafternoon. We have to adjust for break and have to go 7 home early for dinner. 8 MR. O'LAUGHLIN: Did you have Mr. Zuckerman on I-5 9 again? Poor guy. 10 C.O. STUBCHAER: If you keep up these objections, we 11 are going to get to the lunch hour. 12 C.O. STUBCHAER: Mr. Herrick. 13 MR. HERRICK: Mr. Chairman, without being 14 uncooperative, we would all like more time for redirect or 15 recross. But the point is, if one party gets to do that, 16 that puts other parties at a disadvantage who were not able 17 to do that before or after that point. 18 C.O. STUBCHAER: In my opinion, and in my ruling, the 19 telling point is that if we take an early lunch, we have a 20 very long afternoon. And so we start running out of steam 21 at about 3:30, 4:00. 22 So, we are going to proceed with the 23 recross-examination until noon. 24 Mr. O'Laughlin. 25 ---oOo--- CAPITOL REPORTERS (916) 923-5447 9128 1 RECROSS-EXAMINATION OF SOUTH DELTA WATER AGENCY 2 BY SAN JOAQUIN RIVER GROUP AUTHORITY 3 BY MR. O'LAUGHLIN 4 MR. O'LAUGHLIN: Thank you, Chairman Stubchaer. 5 I want to go back to this question about -- I will try 6 to tie this back to the redirect every time. I don't know 7 if I'll do that. I realize the Board wishes that to be 8 done. I will try to keep the questions within the ballpark. 9 I don't know if I will do it every time. 10 In regard to questions from Mr. Herrick, you were 11 talking about the San Joaquin River Agreement and the 12 effects of when that water would be made available and where 13 it would be made available and where it would come from. I 14 want to talk about this real water concept. 15 Do you see -- you reviewed the State Water Resources 16 Control Board EIR? 17 MR. HILDEBRAND: Yes. 18 MR. O'LAUGHLIN: Anywhere within the State Water 19 Resources Control Board Draft EIR do they make a 20 quantification of -- strike that. 21 Do they define real water within the State Water 22 Resources Control Board Draft EIR? 23 MR. HILDEBRAND: I don't believe so. 24 MR. O'LAUGHLIN: Does the State Water Resources Control 25 Board Draft EIR quantify the amount of real, quote-unquote, CAPITOL REPORTERS (916) 923-5447 9129 1 real water that needs to be made available in order to meet 2 the San Joaquin River standards at Vernalis? Real water. 3 MR. HILDEBRAND: I don't recall that they did. 4 MR. O'LAUGHLIN: Now, in the San Joaquin -- in the 5 State Water Resources Control Board Draft EIR is there any 6 quantification within the Draft EIR as to whether or not the 7 water made available at Vernalis would come from reoperation 8 of reservoirs? 9 MR. HILDEBRAND: I think the Board did not address 10 that. And that's been one of our criticisms, that we don't 11 think you can establish a lower requirement at one time of 12 the year without establishing for other times of the year 13 because if you don't do the latter, people just shift the 14 water from one time to another. 15 MR. O'LAUGHLIN: Does the State Water Resources Control 16 Board Draft EIR, to the best of your knowledge, address how 17 much water would be made available to meet the standard at 18 Vernalis due to recirculation of tailwater? 19 MR. HILDEBRAND: I don't believe they quantified that. 20 MR. O'LAUGHLIN: It is true, however, though, that 21 within the State Water Resources Control Board Draft EIR 22 that they did try to quantify the amount of groundwater that 23 would be pumped to make up for any water made available for 24 the Vernalis standards; is that correct? 25 MR. HILDEBRAND: I believe that is right. They did not CAPITOL REPORTERS (916) 923-5447 9130 1 address where the refill of the groundwater would come 2 from. 3 MR. O'LAUGHLIN: Did the State Water Resources Control 4 Board Draft EIR address how much land would need to be 5 fallowed within the basin in order to meet any of the 6 alternatives as described in the State Water Resources 7 Control Board Draft EIR? 8 MR. HILDEBRAND: I don't recall that they did. 9 MR. O'LAUGHLIN: This is tied into this, but goes back 10 to some questions that Board Member Brown asked, as well. 11 I want to go back looking about real water and water 12 being made available at Vernalis. Would it be a safe 13 statement to say that the State Water Resources Control 14 Board Draft EIR is not concerned where the water comes from, 15 how the water comes from, but only that the water shows up 16 at Vernalis in order to meet the flow and salinity 17 standards? 18 MR. HILDEBRAND: I believe that is the problem with 19 these alternatives is it doesn't address where it would come 20 from and the consequence to downstream parties and the 21 public trust of different options for providing that flow. 22 MR. O'LAUGHLIN: One of the things that you have a 23 problem with the San Joaquin River Agreement is where that 24 water comes from and how it comes from. Do you disagree 25 with the testimony of Dan Steiner where he stated that some CAPITOL REPORTERS (916) 923-5447 9131 1 of the water that would be made available at Vernalis for 2 the spring pulse flow for the San Joaquin River Agreement 3 would come from reoperation of the reservoirs? 4 MR. HILDEBRAND: I recall that he did that. 5 MR. O'LAUGHLIN: So we know that reop water may be some 6 of the water that is available. That water will show up at 7 Vernalis; it will be a flow? 8 MR. HILDEBRAND: It will be a flow, but it is taken 9 from some other time unless it is refilled with a spill. 10 MR. O'LAUGHLIN: So then, South Delta Water 11 Agency's problem with that analysis is that if it is taken 12 from one time period, we should look at the impacts that may 13 occur due to refilling those reservoirs at some other time? 14 MR. HILDEBRAND: That's right, and that was not 15 analyzed. 16 MR. O'LAUGHLIN: That was not analyzed. 17 One of the questions that Board Member Brown asked was 18 in regards to 15,000 acre-feet from OID. If OID makes 19 15,000 acre-feet of water available at Vernalis during 20 April/May pulse flow, they decide that based on that they 21 need to fallow 4,000 acres of corn in Oakdale. 22 Now, my understanding is that South Delta Water Agency 23 would be against such a program because that 4,000 acre-feet 24 would have received water during the summer months, which 25 would have been led to tailwater; is that correct? CAPITOL REPORTERS (916) 923-5447 9132 1 MR. HILDEBRAND: If the contribution to the pulse flow 2 was quantitatively the same as the savings in water by 3 fallowing, and if the water that was made available by that 4 lack of diversion to meet that crop requirement in the 5 summer, was water that was left in the river, came down, 6 then, yes, it would be okay. Depends on how the thing was 7 managed. 8 MR. O'LAUGHLIN: You're mistaking what I am getting 9 at. What I am saying is Oakdale looks at the 15,000 10 acre-feet. They go out to the farmer, Farmer Jones, and 11 they say, "Farmer Jones, we want you to fallow this 4,000 12 acres. Because if you fallow this 4,000 acres, we know that 13 is going to save us 15,000 acre-feet, and in exchange for 14 that we will give you this money." 15 Anyway, they do that, and the 15,000 acre-feet from 16 Oakdale all goes down the April/May pulse flow period, that 17 31-day period. 18 Then Farmer Jones doesn't farm his land. It's totally 19 fallowed, no groundwater, no recirculation water. It is 20 high and dry. 21 Now my understanding is South Delta Water Agency is 22 against such a thing because that farm would have been using 23 water in the summertime which would have then had return 24 flows to the Stanislaus River, correct? 25 MR. HILDEBRAND: If the water that is put down is water CAPITOL REPORTERS (916) 923-5447 9133 1 that is saved by fallowing -- 2 MR. O'LAUGHLIN: We agree with that. 3 MR. HILDEBRAND: -- and the water which would have come 4 down as excess application and which would then have 5 generated return flow, then still comes down in the 6 summertime, then we're okay. 7 MR. O'LAUGHLIN: But that assumes, then, if Oakdale 8 makes this water available, 15,000 acre-feet for the pulse 9 flow, and let's just use some number, 66 percent -- we used 10 that water application number before. That means 5,000 11 acre-feet of water has to be made available sometime during 12 the summer period from Oakdale in order to mitigate the 13 impacts to South Delta Water Agency? 14 MR. HILDEBRAND: That's correct. 15 MR. O'LAUGHLIN: So, you're really not in favor of 16 consumptive waters to meet pulse flow unless it's 17 consumptive water to meet pulse flow plus mitigating the 18 impacts at Vernalis due to the nonreturn flows showing up 19 from fallowed land? 20 MR. HILDEBRAND: Well, I wouldn't put it that way. If 21 you fallow enough water to reduce the consumptive use by 22 15,000, reduce it by 15000, and that comes down, provides 23 pulse flow, that's okay. But if you then -- had you not 24 done that, you would have applied in this example 3,000, 25 right, had you not fallowed the ground. CAPITOL REPORTERS (916) 923-5447 9134 1 MR. O'LAUGHLIN: 15,000 acre-feet would have been 2 applied on this 4,000 acre-feet of ground? 3 MR. HILDEBRAND: You didn't save 15,000 acre-feet by 4 fallowing. You save the amount -- reduction in consumptive 5 use by fallowing. 6 MR. O'LAUGHLIN: Any way you want to play it. 7 MR. HILDEBRAND: The consumptive use, if you are going 8 to reduce the consumptive use by 15,000, had that land not 9 been fallowed you would have diverted onto that land 22 and 10 a half thousand in the summer. And so we would still have 11 gotten the seven and a half thousand acre-feet coming down 12 in the summer. 13 Now, if you fallow the ground, you let down the savings 14 caused by fallowing of 15,000 and use that for the pulse 15 flow, you still have to then release that applied water that 16 would have been released in the summertime of seven and a 17 half thousand in order to make us whole. 18 MR. O'LAUGHLIN: The deal to make South Delta Water 19 Agency whole, just so I understand it, and your problem with 20 the San Joaquin River Agreement is that by allowing people 21 to reop their reservoirs, conserve water, fallow land or 22 recirculate water, you believe you don't get the water when 23 you need it? 24 MR. HILDEBRAND: We don't get the return flows we would 25 have gotten at the time that they would have helped us. Of CAPITOL REPORTERS (916) 923-5447 9135 1 course, this is a very hypothetical thing because there is 2 no plan in the San Joaquin River Agreement to fallow land 3 and provide water. 4 MR. O'LAUGHLIN: Is there within the San Joaquin River 5 Agreement -- 6 C.O. BROWN: Excuse me. Mr. Chairman. 7 C.O. STUBCHAER: Mr. Brown. 8 C.O. BROWN: Point of clarification, too. You may 9 recall when we were talking about this issue that the 10 irrigation efficiency in those losses are divided up with 11 evaporation, tailwater and groundwater and percolation. So 12 not all of the losses and efficiency you have suggested from 13 the testimony that I heard yesterday would be attributable 14 towards or to tailwater. So you have to -- the water that 15 you are -- 16 MR. HILDEBRAND: There would be some difference in the 17 evaporative loss. As far as going to groundwater, that, 18 again, has to be replaced at some point in time. The only 19 water that disappears is what's either used for 20 evapotranspiration by the plant or any loss by evaporation 21 in the application of the water. 22 C.O. BROWN: I was trying to clear up in my own mind 23 what was the effect as you are suggesting upon the South 24 Delta. The direct effect, as I understand from prior 25 testimony, would be the water that would have eventually CAPITOL REPORTERS (916) 923-5447 9136 1 made its way into the drainage channels via the tailwater? 2 MR. HILDEBRAND: Yes. It may go in and out of 3 groundwater in the process. 4 MR. O'LAUGHLIN: Let's look at Oakdale for just a 5 moment. Isn't it true that the water that leaves Oakdale 6 goes to South San Joaquin Irrigation District, and it is 7 used in irrigation within South San Joaquin Irrigation 8 District? 9 MR. HILDEBRAND: Talking about return flow? 10 MR. O'LAUGHLIN: Tailwater, return flow, whatever. 11 MR. HILDEBRAND: I suppose it may. Of course, it may 12 also be used by riparians in the Stanislaus. 13 MR. O'LAUGHLIN: Correct. Isn't it also true that some 14 of the water that leaves OID is picked by Central San 15 Joaquin Water Conservation District and used by their 16 farmers for irrigation? 17 MR. HILDEBRAND: I am not sure what Central San Joaquin 18 Irrigation District -- somehow that doesn't ring a bell with 19 me. 20 MR. O'LAUGHLIN: Do you know if some of the water that 21 leaves OID and makes its way into Modesto Irrigation 22 District is used by Modesto Irrigation District for 23 irrigation within its boundaries? 24 MR. HILDEBRAND: Oh, yes. And then their tailwater 25 goes down the Tuolumne and gets into the -- reaches Vernalis CAPITOL REPORTERS (916) 923-5447 9137 1 by that route. 2 MR. O'LAUGHLIN: As we sit here today, we probably 3 don't have a very good handle about what the net amount of 4 return that would actually show up at Vernalis would be from 5 not applying an acre-foot of water within OID; is that 6 correct? 7 MR. HILDEBRAND: These last questions of yours have to 8 do with whether it's really a 66 percent or something else. 9 Some of it gets reused before it becomes tailwater into the 10 river. Then that affects the overall efficiency of use. 11 So it isn't just the efficiency of use of the first 12 applicator; it's the overall efficiency of use in the 13 basins. 14 MR. O'LAUGHLIN: I want to focus on some questions Mr. 15 Herrick asked you in regards to X2 and priority of use. One 16 of the -- what is your understanding of Delta outflow? What 17 is your understanding of what that is? 18 MR. HILDEBRAND: It's the outflow of water from -- net 19 outflow of water from the Delta to the Bay. 20 MR. O'LAUGHLIN: When you say "net outflow," that means 21 if the exporters are pumping it is the amount of water 22 flowing into the Delta minus exports equals Delta outflow? 23 MR. HILDEBRAND: It's inflow minus exports and minus 24 both -- well, all the channel diversions and depletion flows 25 in the Delta. Which include both consumptive, public trust CAPITOL REPORTERS (916) 923-5447 9138 1 depletions and depletions used for agriculture and by the 2 cities. 3 MR. O'LAUGHLIN: Let's take two situations. One is the 4 San Joaquin River Agreement where water is actually going to 5 be released from tributaries, down the tribs and into the 6 San Joaquin River and then to the Bay. Juxtapose that to 7 your recirculation theory in looking at Delta outflow. 8 If the pumping is increased under recirculation so that 9 it's 3,500 -- let's say there was a one-to-one 10 correspondence between pumping and San Joaquin River flows, 11 what then happens to the CVP and SWP as far as making 12 additional releases from the Feather River, the American 13 River or Sacramento River to make up for the X2 increased 14 pumping? 15 MR. HILDEBRAND: Recirculating water doesn't effect 16 that. 17 MR. O'LAUGHLIN: Your theory would be that the amount 18 of water coming in equals the amount of watering going out. 19 Therefore, there is no net import to X2? 20 MR. HILDEBRAND: That's right. 21 MR. O'LAUGHLIN: If the San Joaquin River Agreement -- 22 we have the tributaries plus the exchange contractors making 23 water available in the Delta at a time when it would 24 otherwise not be there. What is the net effect to the CVP 25 and SWP as far as making additional releases from reservoirs CAPITOL REPORTERS (916) 923-5447 9139 1 to meeting Delta outflow? 2 MR. HILDEBRAND: If you supply that flow during the 3 pulse flow by measures that reduce the flow some other time 4 of the year, and you look at them on an annual basis, it 5 isn't clear that it would alter that obligation. 6 MR. O'LAUGHLIN: Alter the obligation of whom? 7 MR. HILDEBRAND: Feather River and what have you that 8 you just mentioned. 9 MR. O'LAUGHLIN: In regards to some questions by Mr. 10 Herrick you stated that at times there had been insufficient 11 water for South Delta. I thought we discussed yesterday 12 that South Delta had never had insufficient water, but may 13 have insufficient water quality. Did I mishear that 14 yesterday? 15 MR. HILDEBRAND: You didn't hear that correctly. There 16 are times when places in our channels essentially go dry, 17 and we can't divert. 18 MR. O'LAUGHLIN: Now, are you attributing that to 19 upstream reservoirs not bypassing the amount of water that 20 you would be entitled to under our riparian right? 21 MR. HILDEBRAND: It's a combination of that and the 22 drawdown of the export pumps. 23 MR. O'LAUGHLIN: Can you point me to any evidence in 24 the record slowing that the upstream reservoirs are storing 25 water that otherwise would have been made available for CAPITOL REPORTERS (916) 923-5447 9140 1 riparian use? 2 MR. HILDEBRAND: There are times when we have had 3 insufficient inflow at Vernalis to meet our channel 4 depletion in the South Delta, and yet the upstream operators 5 were not, to the best of our knowledge, bypassing any 6 inflow. 7 MR. O'LAUGHLIN: Well, what operators are you talking 8 about in that regards, Mr. Hildebrand? 9 MR. HILDEBRAND: The operators of Exchequer, the 10 operators of Don Pedro, the operators of New Melones. 11 MR. O'LAUGHLIN: Did you ever bring a complaint against 12 any of those districts for their operations of their 13 reservoirs that they were violating your water rights? 14 MR. HILDEBRAND: I don't know that we brought a 15 complaint exactly on that basis, no. 16 MR. O'LAUGHLIN: Have you brought any complaint to the 17 State Water Resources Control Board that any of the 18 districts that operate New Don Pedro or New Exchequer were 19 operating in violation of their permit or licensed 20 conditions? 21 MR. HILDEBRAND: We have contended in this and other 22 hearings that they were not being operated in cognizance of 23 the obligation of the tributaries collectively to meet the 24 channel depletion in the South Delta. 25 MR. O'LAUGHLIN: What, in your mind -- let's take a CAPITOL REPORTERS (916) 923-5447 9141 1 hypothetical. 2 C.O. STUBCHAER: How about a hypothetical lunch break? 3 MR. O'LAUGHLIN: I was just getting started. Oh, no, 4 my train of thought is gone. 5 C.O. STUBCHAER: Write it down before you forget it. 6 We will come back at 1:00. 7 (Luncheon break taken.) 8 ---oOo--- 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 9142 1 AFTERNOON SESSION 2 ---oOo--- 3 C.O. STUBCHAER: Good afternoon. Reconvene. 4 Mr. O'Laughlin. 5 MR. O'LAUGHLIN: Thank you, Chairman Stubchaer. 6 Mr. Hildebrand, I would like to get clear on the 7 question of storing riparian water when it otherwise should 8 have been made available to South Delta. 9 Are we talking about a situation wherein -- let's 10 assume hypothetically that the unimpaired flow at Vernalis 11 should be a thousand cfs. That water is not there, and we 12 know on an upstream tributary that they're storing 200 cfs 13 of inflow in the reservoir. 14 Are you saying in that situation that the upstream 15 reservoir should bypass the 200 cfs in order to ensure that 16 the 1000 cfs is at Vernalis? 17 MR. HILDEBRAND: Basically, yes. 18 MR. O'LAUGHLIN: What about a situation where on the 19 upstream reservoir there is no unimpaired flow coming in and 20 the reservoir has stored water? Are you then saying that 21 water that was stored earlier in the year should now be 22 released to meet downstream riparian rights? 23 MR. HILDEBRAND: The riparian right is a right to 24 unimpaired flow. The question of a right to stored water 25 again is a question of whether if stored more water than is CAPITOL REPORTERS (916) 923-5447 9143 1 needed for their own use. In that case they stored in 2 excess of the storage right because the storage right is 3 based on a right to store the water needed by the district 4 for use within its own boundaries. 5 MR. O'LAUGHLIN: I understand that. 6 What district upstream, in your opinion, has stored 7 water in violation of either its licenses or permits on any 8 of the tributaries? 9 MR. HILDEBRAND: There have been times when the inflow 10 at Vernalis was less than sufficient to meet the channel 11 depletion in the South Delta, and yet the upstream parties 12 were not bypassing unimpaired flow. 13 MR. O'LAUGHLIN: But let's take the situation -- I 14 understood that. By your last response what I understood it 15 to mean is that, technically, if a district upstream stores 16 water in one year -- let's say they store 500,000 acre-feet 17 of water, and they could only use 250,000 that year. Are 18 you saying that in the following year, then, since they 19 didn't use all that water, that they would have a 20 requirement to release water downstream if there weren't 21 sufficient flows for riparians? 22 MR. HILDEBRAND: They have a requirement not to release 23 that water for purposes of use outside of the district. And 24 so at whatever point they might release it for some other 25 purpose, they are releasing water that was stored in excess CAPITOL REPORTERS (916) 923-5447 9144 1 of their needs which, therefore, should have come down at 2 some point in time. 3 MR. O'LAUGHLIN: Are you aware of any situation where 4 any upstream operator has done that? 5 MR. HILDEBRAND: Yes, I believe so. I can't cite you a 6 specific case in point at the moment, but I think it's 7 correct to say that they have stored water and then released 8 it for other purposes at least in a situation where at the 9 time they release for another purpose was made it was not 10 known whether it would be needed to meet the channel 11 depletions in the South Delta. 12 MR. O'LAUGHLIN: When you say that the channel 13 depletions are being met, have you ever looked at -- has 14 South Delta Water Agency ever tried to model to assure that 15 your unimpaired flow would have been there absent these 16 reservoirs in order to meet your channel depletion? 17 MR. HILDEBRAND: There clearly have been times where 18 the flow at Vernalis was insufficient to meet our channel 19 depletion, and yet the unimpaired flow was not bypassed. 20 MR. O'LAUGHLIN: Do you have any records that you can 21 point us to in that regard? 22 MR. HILDEBRAND: Not here at the moment. I think we 23 could get such a record. 24 MR. O'LAUGHLIN: Would it be your assertion, then, that 25 during the drought of '86 to '92, that even if the CAPITOL REPORTERS (916) 923-5447 9145 1 unimpaired flow was lower than your channel depletion 2 numbers in July and August, that the amount of water showing 3 up at Vernalis was below your channel depletion numbers, 4 your assumption is that riparian water would have been made 5 available to meet your channel depletion numbers; is that 6 correct? 7 MR. HILDEBRAND: It might not have been adequate to 8 meet it, but we are entitled to whatever was available. 9 MR. O'LAUGHLIN: What is your opinion of your water 10 right versus the pre-1914 water rights on the tributaries? 11 MR. HILDEBRAND: Riparian rights are superior to the 12 pre-1914 rights. 13 MR. O'LAUGHLIN: Even adjudicated pre-1914 water 14 rights? 15 MR. HILDEBRAND: As far as I know. 16 MR. O'LAUGHLIN: Another one, you talked briefly about 17 CEQA and NEPA in some responses to questions by Mr. Herrick 18 in regards to mitigating impacts. Is it true that South 19 Delta Water Agency sued the United States Bureau of 20 Reclamation on a NEPA violation with regard to a water 21 transfer by Merced to the Bureau and by OID and SSJID to the 22 Bureau? 23 MR. HILDEBRAND: Yes. 24 MR. O'LAUGHLIN: Did that Court find that, in fact, 25 you, South Delta Water Agency users, had, in fact, been CAPITOL REPORTERS (916) 923-5447 9146 1 impacted by the transfer? 2 MR. HILDEBRAND: There were two things involved. One 3 was declaratory relief and the other was the general 4 question. In the case of declaratory relief, the Court 5 didn't act until a long time after the suit was filed. And 6 by that time the subject had become moot because of the wet 7 weather. And the judge felt since we hadn't had damage that 8 there was no need to rule in our favor. 9 MR. O'LAUGHLIN: Did you make an arrangement with 10 Central Delta Water Agency that you would file a lawsuit 11 against the Bureau in Federal Court under the NEPA and that 12 Central Delta Water Agency would file a suit in State Court 13 against OID and SSJID on the same transfer for violation of 14 CEQA? 15 MR. HILDEBRAND: The problem we had was that the 16 position was being taken that, in the law or in the courts, 17 that if the action were against the federal government and 18 the state didn't agree to be a part to the action, that then 19 the Court would not rule on it. 20 The reverse was also true, that if the action was 21 against the state and the federal government didn't choose 22 to be subjected to the thing, then it was thrown out on the 23 basis the feds didn't cooperate. The consequence of that is 24 that there was no legal recourse to an action in which both 25 parties were involved. There was some legislation later to CAPITOL REPORTERS (916) 923-5447 9147 1 attempt to at least partially correct that problem. 2 MR. O'LAUGHLIN: Mr. Hildebrand, isn't it true that -- 3 C.O. STUBCHAER: I didn't get the answer to the 4 question. 5 MR. O'LAUGHLIN: There was no answer to the question, 6 so I am going to try to clarify it. 7 Mr. Hildebrand, the response that you just gave is in 8 response to a State Water Resources Control Board order upon 9 which various parties filed a lawsuit against the State 10 Water Resources Control Board and not about the question 11 that I asked in regards to Central Delta Water Agency filing 12 a CEQA lawsuit against OID and SSJID in Superior Court; is 13 that correct? 14 MR. HILDEBRAND: I believe that is correct. 15 MR. O'LAUGHLIN: Now let's focus in on the Central 16 Delta Water Agency's lawsuit against OID and SSJID for the 17 transfer of water to the United States Bureau of Reclamation 18 in order to help implement the CVPIA. 19 Did that Court make any finding as far as you know that 20 Central Delta Water Agency landowners had been impacted due 21 to that transfer? 22 MR. HERRICK: Mr. Chairman, I would just like to object 23 as beyond the scope. There were questions on CEQA and NEPA, 24 but I think any specific lawsuits that we had a ruling on 25 yesterday goes beyond that and would be contrary to your CAPITOL REPORTERS (916) 923-5447 9148 1 ruling yesterday. 2 C.O. STUBCHAER: The ruling was that Mr. Hildebrand 3 could answer factual questions, not legal questions. 4 MR. O'LAUGHLIN: This is a factual question. I just 5 wanted to know if the Court found whether or not there was 6 an injury to the Central Delta Water Agency's landowners due 7 to that transfer. 8 MR. HERRICK: I appreciate that, but that is why I 9 objected, beyond the scope, also. 10 MR. O'LAUGHLIN: On the redirect, Mr. Chairman, the 11 questions were asked by Mr. Herrick about whether or not how 12 CEQA should be applied and NEPA should be applied to address 13 adverse environmental impacts on the releases of stored 14 water to mitigate impacts. 15 My question is going -- we have two examples now, the 16 Merced transfer and OID and SSJID transfer to the Bureau to 17 help meet CVPIA pulse flows in which two courts have 18 specifically found that there is no injury. One on the 19 federal side and one on the -- 20 MR. HERRICK: Objection. He is testifying to what 21 happened. 22 C.O. STUBCHAER: Let me make my ruling. 23 MR. O'LAUGHLIN: Okay. 24 C.O. STUBCHAER: I am going to permit the answer on the 25 factual questions to the extent the witness has the CAPITOL REPORTERS (916) 923-5447 9149 1 knowledge. Regarding the scope, Mr. Herrick, we started 2 keeping track of the scope up here. After two pages we just 3 couldn't. 4 C.O. BROWN: Quit. 5 C.O. STUBCHAER: We just quit because it was so broad. 6 It seemed to us it was pretty wide open. 7 Please proceed, Mr. O'Laughlin. 8 MR. O'LAUGHLIN: Mr. Hildebrand, back to the question. 9 Do you know if the Superior Court in the County of San 10 Joaquin issued an order finding that Central Delta Water 11 Agency landowners would, in fact, be impacted due to the 12 transfer from OID and SSJID to the United States Bureau of 13 Reclamation? 14 MR. HILDEBRAND: The problem I am having here is that 15 I'm cognizant of the issues that were raised, but the action 16 of the Court, as I understood it, was rather complicated as 17 to what the findings were versus the question of were we 18 actually injured, weren't we actually injured in this 19 instance versus any prejudice to a future suit in the event 20 new circumstances arose, things of that sort. 21 I don't feel that I'm sufficiently conversant with the 22 detail of these judgments. Which were made amongst judges 23 and lawyers, to which I wasn't a party to the testimony 24 given, there was no cross-examination of contentions made 25 by, for example, the Bureau's attorney; and so I think that CAPITOL REPORTERS (916) 923-5447 9150 1 goes into more legal detail than I should attempt to 2 cover. I do not -- have never claimed to be an expert on 3 legal matters. I do have some knowledge of it. 4 When I have an understanding of some aspect of it, I am 5 willing to say what I understood and what I didn't 6 understand. But in this case I think that the rulings and 7 the basis for the rulings was rather complex, and I am not 8 aware that any of these judgments preclude similar suits in 9 the future. 10 C.O. STUBCHAER: Mr. O'Laughlin, as we said yesterday, 11 the rulings and the Court orders say what they say, and they 12 can be cited in your briefs. 13 MR. O'LAUGHLIN: Not a problem. 14 Next one, Mr. Herrick brought up the involvement of the 15 CVPIA and the restriction of transfers in regards to the 16 CVPIA. 17 Do you know whether or not South Delta Water Agency 18 sued the United States Bureau of Reclamation on the basis of 19 the Merced transfer, the OID transfer and the SSJID transfer 20 to the Bureau asserting that those transfers were not in 21 conformance to the CVPIA? 22 MR. HILDEBRAND: I believe we did. I would have to go 23 back and check. 24 MR. O'LAUGHLIN: Do you know what the basis of 25 bringing that action was, Mr. Hildebrand? CAPITOL REPORTERS (916) 923-5447 9151 1 MR. HILDEBRAND: The clause in the Title 34, which was 2 discussed this morning and yesterday. 3 MR. O'LAUGHLIN: What is that? 4 MR. HILDEBRAND: As to the provision that the water 5 subject to any transfer undertaken pursuant to this 6 subsection shall be limited to water that would have been 7 consumptively used or irretrievably lost to beneficial use 8 during the year or years of the transfer. 9 MR. O'LAUGHLIN: Do you know how the Court ruled on 10 your, South Delta Water Agency's, assertion on the fact that 11 the CVPIA was being violated in regards to that section? 12 MR. HILDEBRAND: It is my recollection that the 13 Bureau's attorney alleged some rather devious ideas as to 14 why this didn't apply to this purchase. And I have no basis 15 for believing that contention was correct. 16 MR. BIRMINGHAM: May I ask that this be marked? 17 MR. O'LAUGHLIN: In regards to those devious assertions 18 by the United States Bureau of Reclamation's attorneys, do 19 you whether or not the Court, in fact, adopted those 20 interpretations? 21 MR. HILDEBRAND: Again, I can only give my 22 recollection, and it's largely secondhand because, as I say, 23 this happened among lawyers and a judge. I was not 24 present. 25 MR. O'LAUGHLIN: Were you a party to that lawsuit, Mr. CAPITOL REPORTERS (916) 923-5447 9152 1 Hildebrand? 2 MR. HILDEBRAND: I was a party to the lawsuit, but the 3 lawsuit was not determined with testimony and witnesses and 4 cross-examination. It was determined on the basis of 5 allegations among the attorneys, and the judge's opinion 6 that we had not really demonstrated that we were hurt, which 7 we were not because of a wet year, and, that, therefore, 8 this would have to go some other occasion. 9 C.O. STUBCHAER: Mr. O'Laughlin, we are getting into 10 territory of the objection of yesterday. 11 MR. O'LAUGHLIN: Don't worry, I'm going on. 12 C.O. STUBCHAER: I am not. 13 MR. O'LAUGHLIN: What -- within South Delta Water 14 Agency are there landowners on the east side of the San 15 Joaquin River who drain into the San Joaquin River within 16 South Delta Water Agency? 17 MR. HILDEBRAND: Yes. 18 MR. O'LAUGHLIN: New Jerusalem is one that comes to 19 mind; is that correct? 20 MR. HILDEBRAND: That is the west side. 21 MR. O'LAUGHLIN: I mean the west side, excuse me. I 22 wrote down in my notes wrong. Excuse me. 23 Are there agencies in South Delta Water Agency on the 24 west side of the San Joaquin River who drain into the San 25 Joaquin River or Delta? CAPITOL REPORTERS (916) 923-5447 9153 1 MR. HILDEBRAND: Yes. And those are the Banta Carbona 2 District, West Side Irrigation District use canal water in 3 addition to the water they divert from the river. In the 4 case of Banta Carbona, they originally diverted all their 5 water from the river. Then what happened was when the CVP 6 started up the river killing their orchards and so they were 7 forced to buy water from the Bureau out of the DMC to blend 8 with the river water in order to get it down to a 9 nondamaging salinity. So, they were coerced thereby into 10 paying for water and an expensive system to blend it, and 11 consequently the drainage from that area, insofar as it gets 12 into the river, which it does in the case of New Jerusalem, 13 is return flow which is partly from river water but partly 14 also from DMC water. 15 MR. O'LAUGHLIN: How many acres are located within 16 Banta Carbona, if you remember? 17 MR. HILDEBRAND: I believe they serve something on the 18 order of 18,000 acres, but they are not all within the 19 boundaries of the district. 20 MR. O'LAUGHLIN: What about the West Side Irrigation 21 District? 22 MR. HILDEBRAND: West Side Irrigation District is not 23 that large. I have in my mind it may be 7,000 acres, but I 24 am not sure about that. They divert entirely out of the Old 25 River, except that they also get some water that they CAPITOL REPORTERS (916) 923-5447 9154 1 purchase from the DMC. 2 MR. O'LAUGHLIN: Are there any other districts located 3 within South Delta Water Agency on the west side of the San 4 Joaquin River that drain back to the river? 5 MR. HILDEBRAND: There are diverters from the river who 6 are not receiving Delta-Mendota water, yes. That is true 7 throughout the South Delta. 8 MR. O'LAUGHLIN: How many acres are located basically 9 west of the San Joaquin River and south of Old River within 10 South Delta Water Agency? 11 MR. HILDEBRAND: I don't think I can give you a number 12 for that. 13 MR. O'LAUGHLIN: Why, if you have been stonewalled by 14 the Bureau in regards to their reaching agreement with South 15 Delta Water Agency on your channel depletions need, have you 16 not reactivated your lawsuit and brought it to a conclusion? 17 MR. HILDEBRAND: They didn't stonewall on the depletion 18 needs. They stonewalled us on doing anything about the flow 19 and salinity at Vernalis. 20 MR. O'LAUGHLIN: I thought you said that Mr. Patterson 21 had said that he would not be agreeable to the depletion 22 amounts as stated by South Delta Water Agency? 23 MR. HILDEBRAND: No. He said he would not honor the 24 need to cover the riparian rights with Vernalis flow. 25 MR. O'LAUGHLIN: Thank you for the distinction. CAPITOL REPORTERS (916) 923-5447 9155 1 In regards to the Delta Smelt Biological Opinion, you 2 were asked some questions by Mr. Herrick about 3 reconsultation and so forth. Do you know what, if any, 4 consultation has taken place in regards to the San Joaquin 5 River agreement and the Delta Smelt Biological Opinion? 6 MR. HILDEBRAND: I don't know what the San Joaquin 7 River people may have done in that regard. 8 MR. O'LAUGHLIN: Would you change -- does it change 9 your opinion at all of the San Joaquin River Agreement if 10 the Delta Smelt Biological Opinion has been reconsulted and 11 no changes and conditions or mitigation are required? 12 MR. HILDEBRAND: I don't think it would, not without 13 knowing whether the biological opinion had been revised to 14 direct the misunderstandings of hydrology. 15 MR. O'LAUGHLIN: Mr. Herrick asked you some questions 16 in regards to siltation and pumping capacity. Do you 17 remember those questions? 18 MR. HILDEBRAND: Yes. 19 MR. O'LAUGHLIN: You are familiar with the 1980 report 20 that was done between the Bureau and South Delta Water 21 Agency? 22 MR. HILDEBRAND: I was one of the authors of that 23 report. 24 MR. O'LAUGHLIN: What number is that again, Mr. 25 Herrick? You have it as an exhibit. CAPITOL REPORTERS (916) 923-5447 9156 1 South Delta Water Agency Exhibit Number 48. 2 In fact, Mr. Herrick asked you some questions about 3 Middle River and Old River in the vicinity of Victoria 4 Canal, and I would like to read a passage from Page 175 of 5 that report. It says: 6 The channel has aggraded since the 1933 7 survey from an average maximum bottom 8 elevation of six feet below LWD to an average 9 maximum bottom elevation of four feet below 10 LWD. About 55 percent of the reach, that 11 immediately north of the Old River, has 12 aggraded in an average of .5 feet since 13 1933-34. The most restrictive section is now 14 about .5 feet below LWD as compared to the 15 previous one foot below LWD. (Reading.) 16 Then I want you to focus on the next sentence. It 17 says: 18 The channel conveyance capacity is quite low 19 and is often quite less than the agricultural 20 diversion rate. (Reading.) 21 Do you see that? 22 MR. HILDEBRAND: Yes. 23 MR. O'LAUGHLIN: Your testimony has been that the 24 sedimentation and agridation has gotten worse since 1980; is 25 that correct? CAPITOL REPORTERS (916) 923-5447 9157 1 MR. HILDEBRAND: In some places. 2 MR. O'LAUGHLIN: Has it gotten worse in Middle and Old 3 River? 4 MR. HERRICK: You mean the areas discussed in this 5 quote? 6 MR. O'LAUGHLIN: Yes. Middle River and Old River to 7 Victoria Canal. 8 MR. HILDEBRAND: I can't give a generalized answer to 9 that. DWR and the Corps have recently made new surveys to 10 find out where the shallow spots are now that might be 11 selectively dredged and how they correspond to the low spots 12 that existed at the time of this thing. I do not know. I 13 can't give a generalized answer. 14 MR. O'LAUGHLIN: Do you disagree with the statement 15 that the channel conveyance capacity is quite low and often 16 less than the agricultural diversion rate? 17 MR. HILDEBRAND: I think the statement relates to the 18 channel capacity with the operation of the projects and not 19 channel capacity in absence of the projects. 20 MR. O'LAUGHLIN: Where does it say that in there, that 21 it says it is operation of the channel with the exports as 22 opposed to not with the exports? 23 MR. HILDEBRAND: It does not say this on this page you 24 are referring to, but that is my recollection. 25 MR. O'LAUGHLIN: Let's turn -- on 174 there is another CAPITOL REPORTERS (916) 923-5447 9158 1 section where we talk about the San Joaquin River at 2 Vernalis to Mossdale Bridge. It says: 3 The bottom elevation increased from .5 to 9.5 4 feet with an average increase of about 4 5 feet. This agridation raised the bottom 6 elevation about 45 percent of this reach to 7 an elevation of 1.5 to 3.5 feet above LWD. 8 (Reading.) 9 C.O. STUBCHAER: Could you repeat the channel you are 10 referring to. 11 MR. O'LAUGHLIN: Sure. The San Joaquin River, Vernalis 12 to Mossdale Bridge. 13 C.O. BROWN: .45 feet, what are you talking about? 14 Above sea level? Below sea level? 15 MR. O'LAUGHLIN: That is just an average increase of 16 four feet of agridation. 17 C.O. BROWN: Of silt? 18 MR. O'LAUGHLIN: Yes. The bottom comes up. The next 19 sentence says: 20 This agridation raised the bottom elevation 21 about 45 percent of this reach to an 22 elevation of 1.5 to 3.5 feet above LWD. 23 Whereas, it was 2 to 7 feet below LWD in 24 1933. (Reading.) 25 C.O. STUBCHAER: Thank you. CAPITOL REPORTERS (916) 923-5447 9159 1 MR. O'LAUGHLIN: Mr. Hildebrand, if this sedimentation 2 problem is ongoing within the South Delta Water Agency, how 3 is it that we are ever going to get enough water down in the 4 South Delta Water Agency area to maintain water surface 5 elevations in order for you to have enough capacity in those 6 channels to pump if this agridation problem continues to 7 occur? 8 MR. HILDEBRAND: It's been our experience so far that 9 when you have a sufficient flow at Vernalis to meet the 10 South Delta channel depletions, you do have enough water 11 depth in that reach so that you can divert water. 12 MR. O'LAUGHLIN: Is it your testimony, then, that this 13 agridation that is occurring in the South Delta has had no 14 impact whatever on the ability of South Delta Water Agency 15 landowners to divert water from their channels? 16 MR. HILDEBRAND: It has had a substantial affect in 17 reducing our ability to tolerate a drawdown from export 18 pumps and/or a reduction in the flow at Vernalis. When we 19 have very low flows at Vernalis, we don't have enough water 20 depth in those portions that where the bottom elevation is 21 above low, low tide. 22 Now, you go all the way back to the pre-CVP days when 23 we had more water depth, for example, at my place which is 24 in the reach we are now discussing, we had water at low tide 25 even if there was a very low flow because the bottom CAPITOL REPORTERS (916) 923-5447 9160 1 elevation was below, low, low tide. Whereas, now, if we 2 have a very low flow, the bottom elevation is above low, low 3 tide, and, therefore, we have to rely on the depth we get 4 due to the flow in the stream rather than due to the tidal 5 elevation. 6 MR. O'LAUGHLIN: Going back, Mr. Herrick asked some 7 questions about water savings, where that water would go. 8 In San Joaquin River Group Authority Exhibit 29 isn't it 9 correct that there are approximately 24 years in which more 10 than 105,000 acre-feet of water would need to be made 11 available in order to meet the flow on the San Joaquin 12 River? 13 MR. HILDEBRAND: Flow and quality. 14 MR. O'LAUGHLIN: You can say "flow and quality." I am 15 going to say "flow." 16 MR. HILDEBRAND: I believe the heading refers both to 17 flow and quality. 18 MR. O'LAUGHLIN: No. It says, "Additional water needed 19 to meet 1995 Water Quality Control Plan Delta standards at 20 Vernalis." 21 MR. HILDEBRAND: Delta standards at Vernalis include 22 both flow and quality. 23 MR. O'LAUGHLIN: Leaving aside whatever it is to mean, 24 have you looked at the occurrences when the amount of water 25 would exceed 105,000 acre-feet in order to meet the CAPITOL REPORTERS (916) 923-5447 9161 1 requirements at Vernalis? 2 MR. HILDEBRAND: If we looked at the output in the 3 modeling that was done in SDWA 12, we indicate an average 4 amount for a given year type. But there is obviously a 5 fairly substantial fluctuation around that average. 6 MR. O'LAUGHLIN: Isn't it true, Mr. Hildebrand, in 7 regards to your shifting of water from tile drainage or from 8 the wetlands, that no matter what alternative the Board 9 adopts, if that proves to be a component that can save water 10 and meet water quality needs, that that be married to any 11 alternative that the State Board has; is that correct? 12 MR. HILDEBRAND: No. I don't think that is true. 13 Because if you manage the drainage inflow to the river 14 without augmenting the flow in the river downstream of Salt 15 and Mud Sloughs, you end up exacerbating the salinity 16 problem in that reach, as well as the selenium problem. 17 MR. O'LAUGHLIN: Thank you. 18 I have no further questions. 19 C.O. STUBCHAER: Mr. O'Laughlin. 20 Mr. Birmingham. 21 Afternoon. 22 MR. BIRMINGHAM: Thank you. 23 MR. NOMELLINI: May I ask of Mr. Birmingham if he 24 anticipates an hour still? 25 MR. BIRMINGHAM: Well, it would depend, Mr. Chairman, CAPITOL REPORTERS (916) 923-5447 9162 1 on -- 2 MR. NOMELLINI: Roughly, we have Mr. Zuckerman. I can 3 retrieve him. Just so we don't lose any time. 4 C.O. STUBCHAER: He was in the middle of an answer. 5 MR. BIRMINGHAM: I would anticipate probably an hour. 6 MR. NOMELLINI: Thanks. Sorry. 7 ---oOo--- 8 RECROSS-EXAMINATION OF SOUTH DELTA WATER AGENCY 9 BY SAN LUIS AND DELTA-MENDOTA WATER AUTHORITY AND 10 WESTLANDS WATER DISTRICT 11 BY MR. BIRMINGHAM 12 MR. BIRMINGHAM: Mr. Hildebrand, I have to confess 13 that I am confused by your Comprehensive Plan. I understood 14 from responses to questions asked of you by Mr. O'Laughlin 15 this morning on cross-examination that the Comprehensive 16 Plan that you are suggesting, proposing, and the 17 recirculation element of the Comprehensive Plan is being 18 proposed only if it is on a no-net loss basis? 19 MR. HILDEBRAND: We have only promoted the idea of 20 doing it on no-net loss basis because our overall objective 21 is to achieve the flow and quality at Vernalis without any 22 net loss to any party, whether it be contractors or 23 ourselves. 24 MR. BIRMINGHAM: If I understand the proposal that 25 you're making, if the recirculation plan cannot be CAPITOL REPORTERS (916) 923-5447 9163 1 implemented in a way that results in no-net loss to 2 contractors, you would not advocate implementation of the 3 recirculation plan? 4 MR. HILDEBRAND: To the extent that it can't be done, 5 yes. 6 C.O. STUBCHAER: Mr. Birmingham, no-net loss is not 7 defined what the loss is. Of course, I presume we are 8 talking about water. It could be money, so perhaps clarify. 9 MR. HILDEBRAND: We meant it to be water, including 10 the question of water quality. 11 MR. BIRMINGHAM: Without regard to what Mr. Herrick is 12 pointing out to you now, Mr. Hildebrand, maybe I can ask the 13 reporter to read back the answer to my last question and -- 14 I'm sorry, my last question and your answer. I want to make 15 sure the record is clear on this point. 16 (Record read as requested.) 17 MR. BIRMINGHAM: So, Mr. Hildebrand, to the extent that 18 the recirculation plan can be implemented in a way that 19 doesn't result in a loss of water to contractors, you would 20 advocate implementing it? 21 MR. HILDEBRAND: Correct. 22 MR. BIRMINGHAM: But to the extent implementation of 23 the recirculation plan would result in a loss to 24 contractors, you would not advocate implementing it? 25 MR. HILDEBRAND: In that case we would advocate the CAPITOL REPORTERS (916) 923-5447 9164 1 deficiency, whatever it might be, would be made up by 2 purchases from contractors. 3 MR. BIRMINGHAM: So the answer to my question is yes? 4 MR. HILDEBRAND: Yes. 5 MR. BIRMINGHAM: Perhaps Mr. Herrick is confused as 6 well. Because in some places in your written testimony, and 7 I think in the place that he just pointed out to you in your 8 written testimony, you say you will strive to do it on a 9 no-net loss basis? 10 MR. HERRICK: Without delaying the proceedings, there 11 is no reason to put in things like "I think Mr. Herrick is 12 confused." There is no purpose for that, except being 13 snide. 14 MR. BIRMINGHAM: Well, perhaps, Mr. Hildebrand, you can 15 tell me what it is in the document that Mr. Herrick just 16 pointed out to you, what it says? 17 MR. HILDEBRAND: It is true that that sentence refers 18 to striving for no-net loss. However, our commitment and 19 our dealings with Dan Nelson's organization and others on 20 this issue has been that South Delta Water Agency would 21 stick to the no-net loss basis as regards their interest. 22 MR. BIRMINGHAM: So the thing Mr. Herrick pointed out 23 to you in your testimony, South Delta Water Agency Exhibit 24 Number -- 25 MR. HERRICK: 51. CAPITOL REPORTERS (916) 923-5447 9165 1 MR. BIRMINGHAM: -- 51, is a statement that South Delta 2 would strive to implement or we should strive to implement 3 it on a no-net loss basis? 4 MR. HILDEBRAND: I think what I meant there was to the 5 extent that it could be done on a no-net loss basis, that is 6 what we would do. 7 MR. BIRMINGHAM: Look at your testimony on Page 5. It 8 states: 9 Such a borrowing method could strive for a 10 no-net loss goal as contained in the current 11 joint point operations under Water Rights 12 95-6. (Reading.) 13 Did I accurately read that? 14 MR. HILDEBRAND: Let me see where we are talking about 15 now. 16 MR. BIRMINGHAM: Let me read it again. 17 MR. HILDEBRAND: I see it. 18 MR. BIRMINGHAM: Where I just pointed out in your 19 testimony, "Such a borrowing method could strive for a 20 no-net loss goal as contained in the current joint 21 operations under WR 95-6." 22 That is what it says? 23 MR. HILDEBRAND: WR 96-5 proposes that joint point will 24 be used so that you can reduce the exports at one time and 25 make it up at another without a net loss to the contractor. CAPITOL REPORTERS (916) 923-5447 9166 1 MR. BIRMINGHAM: A net loss of what? 2 MR. HILDEBRAND: A net loss of water. 3 MR. BIRMINGHAM: And I accurately read the statement 4 in your testimony? 5 MR. HILDEBRAND: Yes. I hope my oral testimony has 6 explained it. 7 MR. BIRMINGHAM: Your oral testimony has clarified it. 8 In fact, based upon the clarification, it is correct, isn't 9 it, that you would modify the sentence contained on Page 5 10 of South Delta Water Agency Exhibit 51 to say that "such 11 borrowing should only occur on a no-net loss basis"? 12 MR. HILDEBRAND: We are only proposing that it occur on 13 a no-net loss basis. 14 MR. BIRMINGHAM: In response to a question asked of you 15 by Mr. Herrick, you referred to conversations that you have 16 had with Dan Nelson and others concerning the proposed 17 recirculation plan? 18 MR. HILDEBRAND: Yes. 19 MR. BIRMINGHAM: I believe you have indicated that Mr. 20 Nelson -- Mr. Nelson is the Executive Director of San Luis 21 and Delta-Mendota Water Authority? 22 MR. HILDEBRAND: That's right. 23 MR. BIRMINGHAM: I believe you've indicated that Mr. 24 Nelson is supportive of the recirculation proposal? 25 MR. HILDEBRAND: Providing it's on a no-net loss CAPITOL REPORTERS (916) 923-5447 9167 1 basis. 2 MR. BIRMINGHAM: It is your understanding, Mr. Herrick, 3 that the -- 4 C.O. STUBCHAER: Mr. Herrick? 5 MR. BIRMINGHAM: Excuse me, Mr. Hildebrand. It is 6 your understanding, Mr. Hildebrand, that the San Luis and 7 Delta-Mendota Water Authority would be opposed to a 8 recirculation plan if it would cost its members water supply? 9 MR. HILDEBRAND: That is my understanding. 10 C.O. BROWN: Clarification, Mr. Chairman. 11 C.O. STUBCHAER: Mr. Brown. 12 C.O. BROWN: You have recognized several times in the 13 past there will be a slight cost, possibly in an increment 14 of evaporation of a small amount and a small amount of 15 seepage that might not be recovered from the dedicated 16 quantity to recirculate. I presume that there is some cost, 17 water cost, associated with it, although probably minute? 18 MR. HILDEBRAND: This was discussed among those of us 19 who developed this, which included others besides Dan 20 Nelson. We recognize there was some uncertainty here. As I 21 mentioned earlier, I think, our conclusion was that if there 22 was a loss it would be a small percentage, and that we would 23 propose that any such loss would be made up by using some of 24 the savings in New Melones' requirement for fish and quality 25 flows to redress that loss. So that there wouldn't at the CAPITOL REPORTERS (916) 923-5447 9168 1 end be no-net loss and still be a savings to New Melones 2 that might be slightly reduced. 3 C.O. BROWN: Thank you, Mr. Birmingham. 4 MR. BIRMINGHAM: Mr. Hildebrand, that was my next 5 question. In response to questions asked of you by Mr. 6 Herrick, I believe this morning you indicated that if there 7 were a slight loss, the water would be made up through 8 releases of saved water in New Melones Reservoir. 9 MR. HILDEBRAND: That is our proposal. 10 MR. BIRMINGHAM: That would actually require 11 modification of the permits held by the Bureau of 12 Reclamation concerning its operation of New Melones; isn't 13 that correct? 14 MR. HILDEBRAND: I don't know that it required change 15 in the permits. It would require the Bureau agreeing to do 16 that. 17 MR. BIRMINGHAM: Isn't it correct that the permits held 18 by Bureau currently restrict the use of water in New Melones 19 Reservoir to San Joaquin and Stanislaus Counties and other 20 in-basin counties? 21 MR. HILDEBRAND: Vernalis is in San Joaquin County. 22 MR. BIRMINGHAM: To make up the no-net loss or to make 23 up water to prevent lost water released from New Melones 24 would have to be diverted at Banks or Tracy Pumping Plant 25 for -- CAPITOL REPORTERS (916) 923-5447 9169 1 MR. HILDEBRAND: No, no. If you don't do this, you'll 2 have a burden on New Melones for both fish flows and water 3 quality floats at Vernalis. Now, if you do do this, you may 4 have to use a little bit of that saving to make up any loss 5 should it occur. 6 So, seems to me, that is entirely within the 7 discretionary ability of the Bureau to make such a deal. 8 They come out way ahead on the deal. 9 MR. BIRMINGHAM: Do you have a grease pencil which I 10 can use to draw a diagram on the Board? 11 MR. NOMELLINI: It would be better to draw it on a 12 piece of paper so we can have it in the record. 13 C.O. STUBCHAER: Off the record. 14 (Discussion held off the record.) 15 C.O. STUBCHAER: Back on the record. 16 MR. BIRMINGHAM: May I ask, what is Westlands Water 17 District next in order? 18 MR. NOMELLINI: Did you mail this out ahead of time to 19 all the parties? 20 MS. WHITNEY: 105. 21 MR. BIRMINGHAM: Mr. Hildebrand, I am writing on a 22 piece of Mylar, Westlands Water District 105, and I will 23 have it copied and circulated to all the parties if it is 24 useful. 25 Mr. Hildebrand, I have to apologize because I am not CAPITOL REPORTERS (916) 923-5447 9170 1 an artist. 2 MR. HILDEBRAND: I can understand that, because neither 3 am I. 4 MR. BIRMINGHAM: I am going to draw a reservoir in the 5 upper right-hand corner of the Mylar sheet, marked for 6 identification as Water District 105, and I am going to 7 identify that as New Melones, designate New Melones 8 Reservoir. 9 Is that acceptable? 10 MR. HILDEBRAND: Yes. 11 MR. BIRMINGHAM: As I understand it, the San Joaquin 12 River flows out of New Melones Reservoir -- Stanislaus 13 River, thank you. That is why they are called questions. 14 The Stanislaus River flows out of New Melones Reservoir 15 and then flows into the San Joaquin River. 16 I will indicate the Stanislaus River with the 17 abbreviation "STAN," and the San Joaquin River with the 18 abbreviation "SJ" on Westlands Water District Exhibit 105. 19 MR. HILDEBRAND: Are you going to put the rest of the 20 San Joaquin River, the upstream part on it? 21 MR. BIRMINGHAM: Of course, this is not to scale. And 22 I've indicated with a horizontal line across the San Joaquin 23 River an area that we will refer to as the Mendota Pool. 24 Now, it is your understanding, isn't it, Mr. 25 Hildebrand, that the Mendota Pool is the terminus of the CAPITOL REPORTERS (916) 923-5447 9171 1 Delta-Mendota Canal? 2 MR. HILDEBRAND: Correct. 3 MR. BIRMINGHAM: Now I have drawn on Westlands Water 4 District 105 another line that ends at the Mendota Pool, and 5 in the middle of Westlands Water District Exhibit 105 I have 6 written the word "Tracy." The word Tracy will represent the 7 pumping plant. 8 Is that all right? 9 MR. HILDEBRAND: Okay. 10 MR. BIRMINGHAM: I am going to ask you to step up to 11 Westlands Water District 105 -- I understand that this is 12 basically a schematic. Could you please draw on Westlands 13 Water District 105 the approximate location of the Newman 14 Wasteway, which we will draw in green. 15 MR. HILDEBRAND: It would assist in doing that if you 16 would put the Merced River on there. 17 MR. BIRMINGHAM: I will ask you to put the Merced River 18 on there and label it, because your knowledge of this is 19 much better than mine. 20 MR. HILDEBRAND: My artistry is not better. 21 MR. BIRMINGHAM: Why don't you draw the Merced River in 22 blue and the location of the Newman Wasteway in green on 23 Westlands Water District 105. I will then label them after 24 you have drawn them. 25 MS. WHITNEY: Mr. Stubchaer, are those permanent pens? CAPITOL REPORTERS (916) 923-5447 9172 1 Are they going to rub off? 2 MR. HERRICK: They can be photocopied. 3 MS. WHITNEY: It will not be in color, so it doesn't 4 matter what color you use. 5 MEMBER DEL PIERO: Mr. Chairman, when this hearing is 6 over, I would like the original, please, so that I can 7 secure it for a framing and appropriate display. 8 MS. WHITNEY: Part of the record. 9 MEMBER DEL PIERO: Anything properly crafted by Tom 10 Birmingham, my friend here with the pen, I want -- it needs 11 to be posted somewhere prominently. 12 MR. BIRMINGHAM: You have drawn the Merced River on 13 Westlands 105? 14 MR. HILDEBRAND: The Newman Wasteway comes in 15 approximately here. 16 MR. BIRMINGHAM: I will label each of those. 17 Mr. Hildebrand, I have written the word "Merced" above 18 where you have written the location of the Merced River and 19 "Newman" above where you have indicated the location of the 20 Newman Wasteway; is that correct? 21 MR. HILDEBRAND: Yes. 22 MR. BIRMINGHAM: If I understand the recirculation 23 program, you're proposing that water will be pumped at Tracy 24 or in some circumstances the Banks Pumping Plant? 25 MR. HILDEBRAND: Yes. CAPITOL REPORTERS (916) 923-5447 9173 1 MR. BIRMINGHAM: Which is not shown on Westlands Water 2 District 105? 3 MR. HILDEBRAND: That's right. 4 MR. BIRMINGHAM: Water will be pumped at Tracy and 5 generally conveyed down the Delta-Mendota Canal, which I 6 have labeled "DMC" on Westlands 105, and then released into 7 the Newman Wasteway where the water would then flow back to 8 the San Joaquin River and north in the San Joaquin River; is 9 that correct? 10 MR. HILDEBRAND: Correct. 11 MR. BIRMINGHAM: Now, because of channels in the Delta, 12 which I will just draw generally, I will label "Delta 13 Channel," that pumping and release into the Newman Wasteway 14 to flow down the San Joaquin River would result in what you 15 have termed recirculation? 16 MR. HILDEBRAND: Correct. 17 MR. BIRMINGHAM: Now the permits that the Bureau 18 currently holds for New Melones prohibit the use of water 19 outside of specified counties; isn't that correct? 20 MR. HILDEBRAND: That's correct, except insofar as it 21 requires them to use water to maintain the Vernalis 22 standard. 23 MR. BIRMINGHAM: Under the no-net loss provisions that 24 we have been talking about that you have described as part 25 of the recirculation plan, you've said that any minimal CAPITOL REPORTERS (916) 923-5447 9174 1 loss, resulting from percolation or evaporation, would be 2 made up with water from New Melones Reservoir? 3 MR. HILDEBRAND: That is the proposal. 4 MR. BIRMINGHAM: That percolation or accretion or 5 evaporation would occur between the Tracy Pumping Plant and 6 the point at which it would reenter the Tracy Pumping Plant 7 after being circulated; isn't that correct? 8 MR. HILDEBRAND: Yes. As you mentioned, this is out of 9 scale. The vast majority of that is upstream of the 10 Stanislaus. 11 MR. BIRMINGHAM: In terms of the water that is going to 12 be released from New Melones to make up water lost during 13 the recirculation, that water would be released from New 14 Melones, flow down the Stanislaus River and into the San 15 Joaquin River; is that correct? 16 MR. HILDEBRAND: That's correct. 17 MR. BIRMINGHAM: Then that water would flow through the 18 Delta channels; is that correct? 19 MR. HILDEBRAND: That is correct. 20 MR. BIRMINGHAM: That water would be pumped to Tracy? 21 MR. HILDEBRAND: That's right. 22 MR. BIRMINGHAM: That water could be pumped to Tracy 23 for conveyance to contractors along the DMC? 24 MR. HILDEBRAND: As far as recirculating, it just goes 25 around a merry-go-round, but if it is mingled with other CAPITOL REPORTERS (916) 923-5447 9175 1 water, yes. 2 MR. BIRMINGHAM: Because this water from New Melones is 3 being released to make up water lost in the recirculation, 4 you would expect that that water would be conveyed to water 5 users along the DMC; isn't that correct? 6 MR. HILDEBRAND: Not really, because this release that 7 we are talking about is basically still released for water 8 quality. It is a matter of our having a scheme so they 9 don't have to release as much water for water quality. Any 10 water that is released for water quality can be recovered 11 and exported. There is nothing to prevent that. 12 MR. BIRMINGHAM: You just made a very important point, 13 Mr. Hildebrand. I want to make sure I understand the point 14 you made. Water released for water quality can be picked up 15 at the export pumps? 16 MR. HILDEBRAND: There is nothing that I am aware of in 17 the permit for New Melones that addresses the question of 18 whether the exports may pick up water that flows past 19 Vernalis. 20 MR. BIRMINGHAM: If water is released from New Melones 21 Reservoir for water quality control purposes at Vernalis, 22 after it has achieved, met that purpose, water quality at 23 Vernalis, it can be picked up at the export pumps and there 24 isn't anything in the permits or California water law that 25 prohibits that? CAPITOL REPORTERS (916) 923-5447 9176 1 MR. HILDEBRAND: As far as I know, that is right, 2 except, don't forget, there are some water quality 3 provisions downstream of Vernalis that also have to be met. 4 MR. BIRMINGHAM: Can you consult with Mr. Nomellini on 5 that point? 6 MR. HILDEBRAND: Consult with him? 7 MR. BIRMINGHAM: Let me withdraw that. 8 The water that is going to be released from New Melones 9 Reservoir to make up the water loss through recirculation 10 could be used for any project purpose; isn't that right, Mr. 11 Hildebrand? 12 MR. HILDEBRAND: As I stated, I am not aware that the 13 permits for New Melones include that. There may be other 14 reasons to preclude it, but not the permits for New 15 Melones. 16 MR. BIRMINGHAM: In response to a question by Mr. 17 Herrick you made reference to the fact that your 18 recirculation plan would result in a 12,000 acre-foot 19 savings of released water from New Melones for water quality? 20 MR. HILDEBRAND: In an average, normal year. And I 21 have also explained earlier that we believe that figure is 22 substantially low because of the inability of the models to 23 iterate the consequence of the barriers in reducing the 24 salinity in the Delta-Mendota Canal, which is water that 25 your client receives. CAPITOL REPORTERS (916) 923-5447 9177 1 MR. BIRMINGHAM: When you say my client receives water 2 from the Delta-Mendota Canal, which client are you referring 3 to, Mr. Hildebrand? 4 MR. HILDEBRAND: I beg your pardon. I guess you 5 represent the state contractors. 6 MR. BIRMINGHAM: No. I represent Westlands Water 7 District. 8 MR. HILDEBRAND: So you do receive water from the 9 Delta-Mendota Canal. And if the barriers are in place, it 10 would reduce the salinity of the water delivered to your 11 client. 12 MR. BIRMINGHAM: How much water does Westlands Water 13 District get under its full contract supply, Mr. 14 Hildebrand? 15 MR. HILDEBRAND: I don't remember that, but are you 16 suggesting that you don't, your client does not get any 17 water from the Delta-Mendota Canal? 18 MR. BIRMINGHAM: Are you familiar with the San Luis 19 Unit, Mr. Hildebrand? 20 MR. HILDEBRAND: In general. 21 MR. BIRMINGHAM: The San Luis unit is comprised of 22 joint use facilities? 23 MR. HILDEBRAND: Yes. 24 MR. BIRMINGHAM: And that the San Luis Unit has a 25 component referred to as the San Luis Canal or the CAPITOL REPORTERS (916) 923-5447 9178 1 California Aqueduct? 2 MR. HILDEBRAND: Yes. 3 MR. BIRMINGHAM: Is that different than the 4 Delta-Mendota Canal? 5 MR. HILDEBRAND: Yes. I believe the water that gets 6 that far south is commingled water. 7 MR. BIRMINGHAM: So, you are not suggesting that 8 Westlands Water District takes deliveries off the 9 Delta-Mendota Canal? 10 MR. HILDEBRAND: Not directly. 11 MR. BIRMINGHAM: Westlands Water District receives 12 water from the San Luis Canal, California aqueduct; is that 13 correct? 14 MR. HILDEBRAND: That is my understanding. 15 MR. BIRMINGHAM: Getting back to the 12,000 acre-feet 16 savings released from New Melones for water quality. I want 17 to make sure I understand your testimony, Mr. Hildebrand. 18 That's the amount of water that would be saved in an average 19 year? 20 MR. HILDEBRAND: An average, normal year. 21 MR. BIRMINGHAM: Under your recirculation proposal, 22 how much water on average would be saved in terms of water 23 released from New Melones for water quality? 24 MR. HILDEBRAND: 12,000 in an average, normal year, 25 except as I pointed out that figure is low, probably CAPITOL REPORTERS (916) 923-5447 9179 1 substantially low. 2 MR. BIRMINGHAM: We have many years that are not 3 average, normal years; is that correct? 4 MR. HILDEBRAND: There is fluctuation around that 5 figure, yes. 6 MR. BIRMINGHAM: On average, I am not talking about 7 average normal years. On average? 8 MR. HILDEBRAND: Of all years? 9 MR. BIRMINGHAM: Including all years, how much water 10 will be saved in New Melones as a result of your 11 recirculation plan? 12 MR. HILDEBRAND: I believe the figure -- I would have 13 to look back at the diagram. I think it was 3,000 acre-feet 14 without the correction for the reduction in salinity in the 15 Delta-Mendota Canal. 16 MR. BIRMINGHAM: Would you look at Page 9 of South 17 Delta Water Agency Exhibit 12? South Delta Water Agency 18 Exhibit 12, in the middle of the last paragraph, it states: 19 This modeling study demonstrated DMC 20 recirculation during the spring pulse 21 flow period results in slightly approved 22 water quality conditions at Vernalis and 23 consequently less release is required from 24 New Melones for meeting Vernalis salinity 25 objectives an average of 2,000 acre-feet CAPITOL REPORTERS (916) 923-5447 9180 1 less annually. (Reading.) 2 Is that correct, Mr. Hildebrand? 3 MR. HILDEBRAND: That is correct. But I point out that 4 the overall average is not extremely meaningful because 5 there are many wet years when there is no release. So the 6 real question is how much is saved in the years when the 7 water quality burden on New Melones is substantial. 8 MR. BIRMINGHAM: On average it would save 2,000 9 acre-feet of water in New Melones Reservoir? 10 MR. HILDEBRAND: Prior to making the correction I 11 mentioned. 12 MR. BIRMINGHAM: Board Member Forster asked you a 13 question about water quality impacts from the recirculation 14 plan. I am uncomfortable asking this on recross-examination 15 because Mr. Herrick asked you questions concerning the same 16 subject. But I believe in response to the question asked of 17 you by Board Member Forster you stated in pretty unequivocal 18 terms that your recirculation plan is not going to degrade 19 water quality? 20 MR. HILDEBRAND: The recirculation plan will enhance 21 water quality substantially in the reach from the Newman 22 Wasteway downstream from there. 23 MR. BIRMINGHAM: Isn't it correct, Mr. Hildebrand, that 24 in some circumstances the recirculation plan that you are 25 proposing will actually result in the degradation of water CAPITOL REPORTERS (916) 923-5447 9181 1 quality at Vernalis? 2 MR. HILDEBRAND: It may be points in time when it 3 would, yes, but within the Vernalis salinity standard. In 4 other words, you may come closer to the standard during the 5 pulse than you otherwise would, but you wouldn't exceed the 6 standard. 7 MR. BIRMINGHAM: The reason that there is degradation 8 of water quality at Vernalis is because under your 9 recirculation plan drain water is being held and released at 10 the time of the pulse flow? 11 MR. HILDEBRAND: That is correct. We will only do that 12 to the extent that it does not exceed the Vernalis standard 13 during pulse. 14 MR. BIRMINGHAM: I understood your testimony in 15 response to questions asked of you by Mr. Herrick that the 16 tile drainage would be withheld until April or May under 17 your recirculation? 18 MR. HILDEBRAND: Until the pulse flow started. 19 MR. BIRMINGHAM: Did I understand from your testimony, 20 in response to questions asked of you by Mr. Herrick, that 21 you based your analysis of the recirculation plan on SJRIO 22 Run 16? 23 MR. HILDEBRAND: Yes. 24 MR. BIRMINGHAM: On page -- Table 3 of South Delta 25 Water Agency Exhibit 12. Do you have a copy of that in CAPITOL REPORTERS (916) 923-5447 9182 1 front of you, Mr. Hildebrand? 2 MR. HILDEBRAND: Yes. 3 MR. BIRMINGHAM: Is there a description of Run 16 on 4 Table 3 of South Delta Water Agency Exhibit 12? 5 MR. HILDEBRAND: Yes. 6 MR. BIRMINGHAM: The description of Run 16 states: 7 Run 1 with 50 percent tile drainage withheld 8 in March and April and released in May only 9 in years of DMC recirculation. (Reading.) 10 MR. HILDEBRAND: If there is a year when we can't 11 recirculate for some reason, then we would not make that 12 drainage management because of the fact that it would, in 13 fact, then increase the salinity in that reach of river 14 below Newman Wasteway. We feel that if you're going to 15 manage the release of the drainage water in a manner to take 16 advantage of the dilution that is available during the 17 pulse, that dilution has to be available in the upper reach 18 and not merely when it gets down to the lower end. 19 MR. BIRMINGHAM: Again, in response to a question asked 20 of you by Mr. Herrick, you said water users within the South 21 Delta Water Agency are entitled to some water level. 22 Do you recall saying that? 23 MR. HILDEBRAND: I don't know that I used those exact 24 words, but an adequate water level so that we can divert. 25 MR. BIRMINGHAM: Mr. Hildebrand, do you believe that CAPITOL REPORTERS (916) 923-5447 9183 1 water users within the South Delta Water Agency have some 2 obligation to maintain the channels from which you divert 3 water to ensure that you have a level that will allow you to 4 divert? 5 MR. HILDEBRAND: In the event that agridation reached 6 the point where we could not divert, even in the absence of 7 exports, so then if we didn't do anything about it, we'd be 8 out of luck. That's true. 9 But to the extent that we can divert in the absence of 10 exports, then it doesn't seem to be our problem to create 11 the margin there that enables the export projects to draw 12 down the water level. 13 MR. BIRMINGHAM: Mr. O'Laughlin touched on this on his 14 recross-examination of you, but I would like to follow up a 15 little bit. That is with respect to South Delta Water 16 Agency Exhibit 48. 17 MR. HILDEBRAND: What is that? 18 MR. BIRMINGHAM: South Delta Water Agency Exhibit 48, 19 Mr. Hildebrand, is the 1980 report that you referred to so 20 often. 21 MR. HILDEBRAND: 48 or 58? Okay. All right. 22 MR. BIRMINGHAM: Do you have a copy of South Delta 23 Water Agency Exhibit 48? 24 MR. HILDEBRAND: Yes. 25 MR. BIRMINGHAM: I will ask you to turn to Pages 174 CAPITOL REPORTERS (916) 923-5447 9184 1 and 175. 2 MR. HILDEBRAND: Same pages. 3 MR. BIRMINGHAM: Now, in response to a question asked 4 of you by Mr. O'Laughlin, you said you understood the 5 discussion of changes in the capacity of channels from which 6 South Delta Water Agency diverts water to be a comparison 7 between pre-CVP and post-CVP conditions. 8 Do you recall that, Mr. Hildebrand? 9 MR. HILDEBRAND: Yes. I indicated that this was done 10 many years ago, and I can't remember the entire content of 11 180-some pages. But the whole purpose of this document was 12 to report on the effects of the CVP within the southern 13 Delta water supply. So, that is what we are examining 14 throughout the document. I assume we were when we wrote 15 this portion of it. 16 MR. BIRMINGHAM: On Pages 174 and 175 it's talking 17 about channel depth and cross sections within stretches of 18 South Delta channels; is that correct? 19 MR. HILDEBRAND: As they existed at that time, yes. 20 MR. BIRMINGHAM: Well, actually if we look at Page 174, 21 it states: 22 Changes in channel geometry were assessed by 23 comparison of surveys made in 1913 and 1965 24 by the Corps of Engineers and in 1933-34 by 25 the United States Coast Guard and Geodetic CAPITOL REPORTERS (916) 923-5447 9185 1 Survey and at various times during the period 2 1957 through 1976 by the Department of Water 3 Resources. (Reading.) 4 MR. HILDEBRAND: Yes. 5 MR. BIRMINGHAM: We have talked about this issue 6 before, Mr. Hildebrand, in cross-examination of you in 7 earlier phases of this hearing, and unfortunately I don't 8 have a transcript with me, but I recall asking you a 9 question related to the impact that the CVP has had on the 10 sedimentation of channels in the Delta. And I believe at 11 the time you agreed with me that the agridation of channels 12 in the Delta has not been exacerbated by the operation of 13 the CVP; isn't that correct? 14 MR. HILDEBRAND: This document doesn't state that the 15 agridation is caused by the CVP. It merely addresses the 16 consequences of the agridation on our ability to tolerate 17 the CVP. 18 MR. BIRMINGHAM: To the extent that the agridation of 19 channels in the Delta has interfered with your ability to 20 divert water from South Delta channels, that has nothing to 21 do with the CVP? 22 MR. HILDEBRAND: Let me go back over what I said a few 23 moments ago. To the extent that we could still divert 24 satisfactorily in the absence of the drawdown of the 25 project, which includes predominantly, actually, the CVP at CAPITOL REPORTERS (916) 923-5447 9186 1 least at low tides, to the extent that we can still have 2 enough water depth to divert in the absence of that pumping, 3 then it is the CVP's drawdown that creates the problem even 4 though the CVP didn't cause the agridation. 5 Now, if it reached a point where we could not divert 6 even when you shut down the projects, then the burden might 7 shift to us although it isn't quite clear who is 8 responsible for maintaining those channels. 9 MR. BIRMINGHAM: You touched a couple subjects I would 10 like to explore further, but I want to separate the 11 discussion if I can. In talking about the effects of the 12 CVP on the agridation of channels, in fact, isn't it 13 correct, Mr. Hildebrand, that one of the effects of a 14 reservoir, particularly a large reservoir, is that the 15 reservoir will impede the flow of sediment? 16 MR. HILDEBRAND: That is true, but there is a lot of 17 consequences. 18 MR. BIRMINGHAM: So reservoirs operated by the CVP or 19 the State Water Project may have actually prevented some 20 agridation within channels of the South Delta? 21 MR. HILDEBRAND: I don't think that follows. Because 22 what's happened is that the result of these dams is to 23 reduce the flow and all through the summers and through dry 24 years to very low levels, which then results in the growth 25 of brush in the channel itself. Then, when you get a high CAPITOL REPORTERS (916) 923-5447 9187 1 flow, it can't flow through freely because of the impediment 2 of that brush. That tends to push the velocity out against 3 the banks and cuts the banks down and actually creates an 4 agridation problem. 5 So, we are not alleging that the CVP has either 6 exacerbated or diminished the agridation. There are both 7 things that work, and I don't know how they balance out. It 8 comes back to the point that, although even if you assume 9 that the CVP had no responsibility for causing the 10 agridation, the agridation, nevertheless, is impeding the 11 ability of the CVP to export. 12 Therefore, it would be in the interest of the CVP to 13 help avoid that limitation caused by the agridation, and we 14 do indeed currently have some ongoing discussions among DWR 15 and the Bureau and South Delta on going in and doing some 16 spot dredging to see that the amount of drawdown that we can 17 tolerate will not continue to diminish. 18 MR. BIRMINGHAM: When you talk about South Delta Water 19 Agency Exhibit 48 in the past, you have indicated that this 20 is a joint report between the Bureau and South Delta Water 21 Agency. 22 MR. HILDEBRAND: Yes, that's right. The DWR was sort 23 of observers in it. We were primary. 24 MR. BIRMINGHAM: This is, this being South Delta Water 25 Agency Exhibit 48, is a report that was prepared in part by CAPITOL REPORTERS (916) 923-5447 9188 1 South Delta Water Agency. The conclusions that are in it 2 are the conclusions of the South Delta Water Agency? 3 MR. HILDEBRAND: No. There were joint conclusions of 4 the South Delta Water Agency and the Bureau. It is a joint 5 report. Everything that is in it was agreed to by both 6 parties. 7 MR. BIRMINGHAM: So the South Delta Water Agency, when 8 it puts its name on South Delta Water Agency Exhibit 48, 9 agreed with the conclusion that the channel conveyance 10 capacity is quite low and often less than the agricultural 11 diversion rate? 12 MR. HILDEBRAND: Yes. The thing that is not clear in 13 my recollection is as to whether that referred to being 14 inadequate in the absence of the pumping or with the 15 pumping. I would assume in view of the whole purpose of the 16 report that we are talking about it being inadequate in the 17 presence of the CVP. 18 MR. BIRMINGHAM: Looking at the top paragraph on Page 19 175, it talks about the depth of channel; is that correct? 20 MR. HILDEBRAND: That's right. 21 MR. BIRMINGHAM: And it states: 22 About 55 percent of the reach -- (Reading.) 23 And here we are talking about Middle River, Old River 24 to Victoria Canal; is that correct? 25 MR. HILDEBRAND: Let's see. 55 percent of the reach, CAPITOL REPORTERS (916) 923-5447 9189 1 that immediately north of Old River, that is what, I 2 suppose, it means, has aggraded to an average of .5 -- has 3 aggraded an average of a half a foot since '33-34, yes. 4 MR. BIRMINGHAM: That agridation you have indicated is 5 not a result of CVP. That agridation would have occurred 6 even in the absence of the CVP? 7 MR. HILDEBRAND: Probably. 8 MR. BIRMINGHAM: Then it says: 9 The most restrictive section is now .5 feet 10 or foot below LWD as compared to the previous 11 one foot below LWD. (Reading.) 12 MR. HILDEBRAND: That's right. 13 MR. BIRMINGHAM: Then it states that: 14 The channel capacity is quite low and often 15 less than the agricultural diversion rate. 16 (Reading.) 17 MR. HILDEBRAND: I think the wording there is a little 18 confusing. Because the amount of water that the channel can 19 convey depends on the depth of the channel, not the 20 elevation of the bottom. And it is at low tide when the 21 depth becomes inadequate. And when the federal pumps draw 22 down the low tide, it further exacerbates that problem. 23 MR. BIRMINGHAM: When you published South Delta Water 24 Agency Exhibit 48, you agreed with the statement that the 25 channel conveyance capacity is quite low and often less than CAPITOL REPORTERS (916) 923-5447 9190 1 the agricultural diversion rate? 2 MR. HILDEBRAND: I was a party to the document, and 3 that is what it says. But it does not clearly indicate that 4 this wasn't addressing the situation with the federal pumps 5 operating. 6 MR. BIRMINGHAM: I would like to go back to the 7 recirculation plan and ask you the basis for some of the 8 statement that you have made, Mr. Hildebrand. 9 In response to questions asked of you by Mr. Herrick, 10 you referred to Water Code Section 12202. Do you recall 11 that? 12 MR. HILDEBRAND: Yes. 13 MR. BIRMINGHAM: You referred to permits held by the 14 Bureau of Reclamation to operate New Melones Reservoir? 15 MR. HILDEBRAND: Yes. 16 MR. BIRMINGHAM: Now, is it correct that the basis for 17 your contention that the Bureau of Reclamation is obligated 18 to maintain water quality standards in the Delta is Water 19 Code Section 12202 and the permits that it holds for New 20 Melones Reservoir? 21 MR. HILDEBRAND: That is right. 22 MR. BIRMINGHAM: Do you have a copy of Section 12202 23 with you, Mr. Hildebrand? 24 MR. HILDEBRAND: Yes. 25 MR. BIRMINGHAM: I have placed on the overhead CAPITOL REPORTERS (916) 923-5447 9191 1 projector a paragraph, and I would like you to take a moment 2 to read the paragraph. When you are finished, would you 3 please let me know. 4 C.O. STUBCHAER: Mr. Birmingham, while the paragraph is 5 being read, it is probably a good time for our afternoon 6 break. We will take a 12-minute break. 7 (Break taken.) 8 C.O. STUBCHAER: We will reconvene. 9 You have changed, Mr. Birmingham. 10 MR. O'LAUGHLIN: Yes, sir. He's gotten better 11 looking. 12 MR. BIRMINGHAM: I object. 13 MR. O'LAUGHLIN: I have a scheduling inquiry. My 14 understanding is that next week we have Tuesday and 15 Wednesday and then a half day on Thursday. And I think -- 16 there may be a point in time next week where we actually do 17 get finished with direct cases, based on my understanding of 18 what direct cases have to be made. 19 Is it the Board's desire to start rebuttal cases next 20 week? My inquiry would be that that would pose some 21 difficulty because the transcripts will not be completed for 22 the first part of the direct phase upon which we can site to 23 the testimony in evidence that was put in that is being 24 rebutted. 25 And the other thing is I don't think there will be a CAPITOL REPORTERS (916) 923-5447 9192 1 great deal of time left over, even if the direct cases are 2 completed, in order to start rebuttal cases. So I would 3 just like to ask if the Board would be inclined to start 4 rebuttal cases, on the first hearing date that is scheduled 5 in February to give us some planning. Maybe at the end of 6 next week we can figure out who has rebuttal cases, and the 7 order upon which those rebuttal cases will occur so we can 8 then start coordinating scheduling. 9 My understanding, an update for the Board, is the City 10 of Stockton will not be presenting a direct case in Phase 11 II-A, but will be making a policy statement. My 12 understanding is that Stockton East, also, will not be 13 presenting a direct case in Phase II-A, but will be 14 presenting a policy statement as well. And then TUD this 15 morning we found out will not be presenting a direct case. 16 So, basically, that will leave us with, I believe, NHI 17 and Save the Bay, plus the testimony that we hopefully will 18 hear today from Central Delta Water Agency and Central San 19 Joaquin Water Conservation District, neither one of which 20 appears to take too long. 21 C.O. STUBCHAER: You haven't mentioned the City of 22 Stockton. 23 MR. O'LAUGHLIN: The City of Stockton will be making a 24 policy statement and will not be making a case in Phase 25 II-A. I think if the Chair and Board is inclined, what CAPITOL REPORTERS (916) 923-5447 9193 1 would be helpful, maybe if we set the rebuttal cases to 2 start for the first hearing day in February. At the close 3 of direct next week we can figure out who has rebuttal cases 4 and set up a schedule for getting those rebuttal cases in. 5 C.O. STUBCHAER: Mr. Del Piero. 6 MEMBER DEL PIERO: Mr. Chairman, just a point for your 7 consideration. I think you're aware of, you may not be, 8 both Mr. Brown and I have hearings that are going to be 9 scheduling for the first couple of weeks in February. 10 C.O. BROWN: Right. 11 MEMBER DEL PIERO: I have a hearing that may last a 12 couple of days. I just want you to be aware of the fact you 13 might be in here by yourself on a couple of those days 14 because there are conflicting hearings. 15 C.O. STUBCHAER: The first week of February is clean as 16 far as Bay-Delta is concerned. The first hearing day is the 17 9th. 18 And Ms. Koeller. 19 MS. KOELLER: Cynthia Koeller, K-o-e-l-l-e-r, with save 20 San Francisco Bay Association. 21 I also just wanted to deal with a few quick scheduling 22 issues, Mr. Chairman. We are anticipating, for the 23 convenience of the Board, Save the Bay and NHI are talking 24 about doing a joint panel for a few of our witnesses. We 25 haven't completely worked it out because Greg Thomas is out CAPITOL REPORTERS (916) 923-5447 9194 1 of the country. Our proposal is on Monday morning to begin 2 with the panel consisting of David Fullerton -- 3 C.O. STUBCHAER: Tuesday. 4 MS. KOELLER: I'm sorry, Tuesday morning, the 26th. 5 David Fullerton and Bill Rosekrans, who have also been in 6 testimony on similar subjects. When they are finished we 7 will bring Betty Andrews. 8 What I would like to do, because my witnesses are not 9 available at all on Wednesday, and so I know there are some 10 things that may or may not get finished with today, but I 11 would like to know if it's possible to scheduling them to 12 come because it's a ways from the Bay area. And rather than 13 have them sit here all day and not be able to testify, I 14 would like to give them some certainty if that is feasible. 15 C.O. STUBCHAER: Let's hear from Central Delta on their 16 time requirement estimates. 17 MR. NOMELLINI: We are going to need about 20 minutes 18 for the opening statement, 15 minutes for the direct, 19 probably whatever the cross is. I have no idea. We 20 definitely want to either get on today or Tuesday because 21 Mr. Zuckerman is not available on Wednesday. 22 C.O. STUBCHAER: Miss Cahill. 23 MS. KOELLER: Ms. Cahill indicated that she would only 24 be doing an opening statement. She anticipated 10 or 15 25 minutes. CAPITOL REPORTERS (916) 923-5447 9195 1 C.O. STUBCHAER: She also wanted to do that on 2 Tuesday. We still have to get Mr. Brandt's opening 3 statement. 4 MR. BRANDT: I am flexible, whenever you like. 5 MR. NOMELLINI: Central San Joaquin. 6 MR. ROBERTS: We have about 10 or 15 minutes at the 7 most exclusive of cross-examination. 8 C.O. STUBCHAER: What are your time constraints? 9 MR. ROBERTS: We are here now. We can be back Tuesday 10 morning. 11 C.O. STUBCHAER: How about Wednesday? 12 MR. ROBERTS: That may pose a problem. We can see. 13 C.O. STUBCHAER: Anyone else want to be heard? 14 MR. BIRMINGHAM: Mr. Stubchaer. 15 C.O. STUBCHAER: Mr. Birmingham. 16 MR. BIRMINGHAM: I suspect that my continued 17 recross-examination of Mr. Hildebrand would consume the rest 18 of the afternoon. I've spoken to Mr. Hildebrand, Mr. 19 Herrick and Mr. Nomellini about the potential of suspending 20 the cross-examination after I finished this very short line 21 of questions concerning the overhead, put Mr. Zuckerman on 22 this afternoon, so he doesn't have to come up again, and 23 then resume with Mr. Hildebrand next week. 24 We talked about Tuesday, but in light of Ms. Koeller's 25 request, it may, in fact, be Wednesday. CAPITOL REPORTERS (916) 923-5447 9196 1 C.O. STUBCHAER: Mr. Herrick, is that acceptable to 2 you? 3 MR. HERRICK: Mr. Hildebrand checked his schedule, and 4 that will be acceptable. I will check on that Wednesday. 5 MR. ROBERTS: Mr. Chairman, if you do that, could 6 Central San Joaquin, since we are here and ready to go 7 today, could we be heard today? 8 C.O. STUBCHAER: We will sure try. 9 Okay, Ms. Koeller. We will try to accommodate you. 10 We'll see how it goes the rest of today, and also Ms. 11 Cahill. 12 MS. KOELLER: As I understand, it sounds like there are 13 going to be a few things Tuesday morning, I should have my 14 witnesses here late morning, would be about right for them. 15 C.O. STUBCHAER: It could be you might go first thing 16 Tuesday morning. Other folks would go after you. 17 MS. KOELLER: I am hoping if there is substantial 18 cross-examination we could finish up, if need to, on 19 Thursday instead of Wednesday to accommodate my witnesses if 20 that is okay. 21 C.O. STUBCHAER: We have half a day Thursday. 22 MS. KOELLER: I am hopeful, very hopeful we can do it 23 all on Tuesday. I just wanted to give notice that I can't 24 have them Wednesday. 25 Thank you very much. CAPITOL REPORTERS (916) 923-5447 9197 1 C.O. STUBCHAER: Mr. Birmingham, just cross on this and 2 further on -- 3 MR. BIRMINGHAM: At the conclusion of Ms. Koeller's 4 case. Mr. Nomellini can go this afternoon. 5 C.O. STUBCHAER: And Mr. Roberts. 6 MR. BIRMINGHAM: Mr. Hildebrand, prior to the afternoon 7 recess, I asked you to review a paragraph I have placed on 8 the overhead. Did you have a chance to do that during the 9 recess? 10 MR. HILDEBRAND: Yes, and I have it in front of me 11 here. 12 MR. BIRMINGHAM: The paragraph I have put up is Water 13 Code Section 12202; is that correct? 14 MR. HILDEBRAND: That's right. 15 MR. BIRMINGHAM: As I understand it, it's based on this 16 Water Code section and the permits that the Bureau holds for 17 New Melones on which you base your contention that the 18 Bureau of Reclamation is obligated to meet the water quality 19 standards at Vernalis? 20 MR. HILDEBRAND: There may be other reasons, but those 21 are principal reasons. 22 MR. BIRMINGHAM: I don't want to make this an English 23 lesson, Mr. Hildebrand. When you were in school studying 24 English, did you spend time diagramming sentences? 25 MR. HILDEBRAND: Not very much. CAPITOL REPORTERS (916) 923-5447 9198 1 C.O. STUBCHAER: He was an engineer. 2 MEMBER DEL PIERO: I am glad you said that. 3 MR. BIRMINGHAM: May I have the grease pens? 4 C.O. STUBCHAER: They are nongrease. 5 MR. BIRMINGHAM: Nontoxic. 6 MR. NOMELLINI: Why don't we give it a test like the 7 end of this. 8 MR. BIRMINGHAM: Mr. Hildebrand, looking at Water Code 9 Section 12202, the only reference made to the United States 10 Federal Central Valley Project is in the first sentence? 11 MR. HILDEBRAND: That is correct, but that sentence 12 sucks them in on the rest of it. 13 MR. BIRMINGHAM: Let's look at that sentence. The 14 first sentence says: 15 Among the functions to be provided by the 16 State Water Resources Development System in 17 coordination with the activities of the 18 United States in providing salinity control 19 for the Delta through operation of the 20 Federal Central Valley Project, shall be the 21 provision of the salinity control and 22 adequate water supply for users of water in 23 the Sacramento-San Joaquin Delta. 24 (Reading.) 25 MR. HILDEBRAND: Yes. CAPITOL REPORTERS (916) 923-5447 9199 1 MR. BIRMINGHAM: Now, the phrase making reference to 2 the Federal Central Valley Project is a subordinate clause; 3 is that correct? 4 MR. HILDEBRAND: You going to give me an English lesson 5 now? 6 MR. BIRMINGHAM: What I would like to do, Mr. 7 Hildebrand, this is an important question, because I 8 understand this is the section on which you're basing your 9 contention concerning the obligations of the United 10 States. I will tell you, Mr. Hildebrand, that when I read 11 this section of the Water Code, I, as a lawyer, read it as 12 not imposing any obligation on the United States. You 13 apparently disagree with that? 14 MR. HILDEBRAND: My understanding with discussion with 15 other lawyers than yourself that it does place that 16 obligation. Now, I am not -- I don't know the definitions 17 of is and things like that. So I don't know for sure how 18 some judge might decide to interpret this, but it certainly 19 has been interpreted by other lawyers to indicate joint 20 responsibility of the projects. 21 MR. BIRMINGHAM: It's been interpreted by other lawyers 22 as imposing a joint responsibility; is that what you said? 23 MR. HILDEBRAND: That is my understanding. 24 MR. BIRMINGHAM: Which lawyers have you spoken with 25 that you base that understanding, that statement? CAPITOL REPORTERS (916) 923-5447 9200 1 MR. HILDEBRAND: I have talked to many lawyers, 2 including Mr. Herrick, Mr. Nomellini, earlier lawyers for 3 the South Delta Water Agency over the years. 4 MR. BIRMINGHAM: Let's read the first sentence again. 5 It says: 6 Among the functions to be provided by the 7 State Water Resources Development System. 8 (Reading.) 9 So the subject of this sentence is functions; isn't 10 that correct? 11 MR. HILDEBRAND: Yes. 12 MR. BIRMINGHAM: The verb in this sentence is to be; 13 isn't that correct, the function to be provided? 14 MR. HILDEBRAND: Yes. 15 MR. BIRMINGHAM: So, this sentence is talking about the 16 functions of the State Water Resources Development System? 17 MR. HILDEBRAND: Yes. 18 MR. BIRMINGHAM: If we strike the subordinate clause, 19 "in coordination with the activities of the United States in 20 providing salinity control through the operation of the 21 Central Valley Project," the operative meaning of that 22 sentence stays the same, doesn't it? 23 MR. HILDEBRAND: As regards the State Water Resources 24 Development System it remains the same. 25 MR. BIRMINGHAM: What this sentence says is among the CAPITOL REPORTERS (916) 923-5447 9201 1 functions to be provided by the State Water Resources 2 Development System shall be the provision of salinity 3 control and an adequate water supply for the users of water 4 in the Sacramento-San Joaquin Delta? 5 MR. HILDEBRAND: Yes. 6 MR. BIRMINGHAM: Now, where in the sentence are there 7 words that create an independent obligation on the part of 8 the United States to operate the Federal Central Valley 9 Project to meet salinity control and water supply 10 requirements of the Delta? 11 MR. HILDEBRAND: Well, if you will reinstate what you 12 crossed out, it seems to me that says that the State Water 13 Resources Development System must provide the salinity 14 control in coordination with the federal project, and there 15 are other provisions in law that say the federal project 16 must abide by state law. 17 MR. BIRMINGHAM: We will cover this point next week 18 because this could expand the amount of time that we would 19 take. 20 Generally, you referring to Section VIII of the 21 Reclamation Act of 1902? 22 MR. HILDEBRAND: I don't remember all the numbers. 23 MR. BIRMINGHAM: We will go into detail next week, Mr. 24 Hildebrand. I want to go back to this section of the Water 25 Code. CAPITOL REPORTERS (916) 923-5447 9202 1 This subordinate clause which I crossed out modifies 2 the subject of this sentence; isn't that correct, and the 3 subject of the sentence is functions? 4 MR. HILDEBRAND: It modifies it by saying it is joint 5 responsibility. Now, I never pretended to be a lawyer and 6 if you are going to make a legal argument here that it 7 disputable among lawyers, then I don't think I should be 8 responsible for that. I merely told you my understanding 9 that has been the case over the years of the significance of 10 this statement. And if you have a different one, I would 11 assume that would go in your legal brief. 12 MR. BIRMINGHAM: But, again, Mr. Hildebrand, looking at 13 the words of this sentence, even putting back in the words 14 that I crossed out, this sentence does not impose any 15 obligation on the federal CVP; it merely states that the 16 State Water Resources Development System will coordinate its 17 efforts to provide water for salinity control and water 18 supply with the efforts of the United States; isn't that 19 correct? 20 MR. HILDEBRAND: I would suggest that if that is your 21 interpretation, you put that in your legal brief and our 22 lawyers put in our legal brief the reasons why we think that 23 it is a joint responsibility, looking not only at 12202, but 24 at the provisions in the CVP Act that make it subordinate to 25 state. CAPITOL REPORTERS (916) 923-5447 9203 1 MR. BIRMINGHAM: Are there other provisions of state 2 law on which you base your contentions concerning the 3 Bureau's obligations to meet water quality objectives in the 4 Delta? 5 MR. HILDEBRAND: Well, I never pretended to have all 6 these various laws in my mind. But it is my understanding 7 that there are clear provisions that the CVP must operate in 8 a manner that complies with all state obligations, and that 9 there are provisions in state law that make it clear that it 10 is an obligation of the projects to do what is said there. 11 MR. BIRMINGHAM: Excuse me, Mr. Hildebrand. In 12 response to my question you referred to projects. My 13 question related to the Federal Central Valley Project. 14 Is there a distinction in the law between the 15 obligation of the projects -- let me restate the question. 16 Is there a distinction in the law between the 17 obligations of the State Water Project and the Federal 18 Central Valley Project? 19 MR. HILDEBRAND: I repeat, it is my understanding that 20 the CVP legislation makes the CVP, requires the CVP to abide 21 by the dictates of the state, and that the state requires 22 that this protection be provided. Now I don't want to go 23 further than that. I don't have all these laws and these 24 numbers in my mind. Seems to me appropriate subject to 25 debate in the legal briefs and not for you and I to try to CAPITOL REPORTERS (916) 923-5447 9204 1 settle here. 2 MR. BIRMINGHAM: Mr. Hildebrand, I am not trying to be 3 argumentative or unfair to you. But in response to a 4 question asked of you by your lawyer, Mr. Herrick, he 5 specifically asked you a question about Water Code Section 6 12202. And so I'm just trying to follow up on Mr. Herrick's 7 questions where he specifically asked you about this 8 section. 9 In light of your comments, I would take it that the 10 Water Board should not rely on your understanding of the law 11 as it pertains to the operation of the state and federal 12 projects? 13 MR. HILDEBRAND: I wouldn't expect the Board to. I 14 merely was asked for my understanding of this statute, and I 15 have given it. 16 C.O. STUBCHAER: Mr. Brandt. 17 MR. BRANDT: Perhaps we should move to strike all his 18 testimony about the law on this statute, if he doesn't do 19 that. I will leave that up -- I will just raise that. But 20 since he just admitted he really doesn't know all this stuff, 21 maybe it should -- 22 C.O. STUBCHAER: We have said previously and he just 23 restated that he is not expert on legal matters. He 24 obviously knows a lot about it, so he answered some 25 questions, and his own attorney did not object. So we will CAPITOL REPORTERS (916) 923-5447 9205 1 leave it in. 2 MR. BRANDT: Okay. 3 C.O. STUBCHAER: Mr. Birmingham, does that conclude 4 your recross for today? 5 MR. BIRMINGHAM: Yes, for today. 6 C.O. STUBCHAER: I did not comment on your motion, Mr. 7 O'Laughlin, about the rebuttal starting on February 9th. 8 You've forgotten, too. 9 Anyway, I am not going to rule on that. It looks to 10 me, though, just looking at the schedule ahead, that that 11 may just happen in the flow of events. But we will defer 12 saying when the rebuttal is due till next week. 13 You look puzzled. You have a comment? 14 MR. O'LAUGHLIN: My only concern would be -- I don't 15 disagree with the Chair that that may happen, but I 16 certainly don't want to show up on Thursday morning next 17 week and have the Chair and the Board expecting rebuttal 18 testimony to start. That is my concern. 19 It is not that it would start on that first date in 20 February. I don't want to show up that Thursday and hands 21 are raised and the Board wants to start rebuttal cases. We 22 are sitting like we were previously with some other 23 testimony and nobody is ready to go. 24 C.O. STUBCHAER: Ms. Leidigh. 25 MS. LEIDIGH: I'd just like to point out that there may CAPITOL REPORTERS (916) 923-5447 9206 1 be some parties who were ready. I suspect that Mr. 2 O'Laughlin is probably not the only attorney, so we can see 3 who is ready at that time, if indeed we were needing to 4 start rebuttal at that time. But, as I think Mr. Stubchaer 5 pointed out, we may not start rebuttal at that point. I 6 think we will have some time before Thursday morning, 7 certainly Wednesday we would know. 8 Normally, the Board has started rebuttal immediately 9 after the cases in chief are finished in its hearings. So 10 in the normal course of events would be to start it 11 immediately. 12 C.O. STUBCHAER: That is correct. But looking ahead we 13 have half a day on Thursday, and Wednesday and Tuesday. It 14 looks like we are going to be pretty close to the end. I 15 will say this: we will ask -- if we finish the direct and 16 cross, so forth, before noon Thursday, we will ask if 17 anybody is ready to begin rebuttal. If not, we will wait 18 until the 9th of February. 19 MR. O'LAUGHLIN: Can I ask one more clarifying 20 question? Sorry to keep popping up. What is going to be 21 the methodology by which the Board proceeds forward with 22 rebuttal cases in Phase II-A? What is the methodology by 23 which the Board will proceed forward with rebuttal cases in 24 II-A? Is there going to be a rising of hands and a random 25 drawing? Is it going to be assigned in reverse order? How CAPITOL REPORTERS (916) 923-5447 9207 1 is the Board proceeding forward with rebuttal cases? 2 C.O. STUBCHAER: The order of proceeding with rebuttal 3 cases? 4 MR. O'LAUGHLIN: Yes. 5 C.O. STUBCHAER: I would think that would be in the 6 same order as the direct. But, Ms. Leidigh. 7 MS. LEIDIGH: It is really up to the Board, and I think 8 the Board has some flexibility there. It could take it in 9 the same order as direct. That is the most logical. But it 10 doesn't have to be the only way. 11 MR. O'LAUGHLIN: Because in Phase V it was on a showing 12 of hands, and it was not tied to the direct cases upon which 13 the rebuttal cases were made. I just need to have some 14 understanding because if some other methodology, I have to 15 be prepared and ready to go, line up my witnesses because I 16 am the first one coming out of the shoot. I think we should 17 have some understanding before we leave about what the order 18 of the rebuttal cases would be so that we know who is going 19 to be on first base when we start. 20 C.O. STUBCHAER: Just throw a question out to the 21 group. What do the parties think about going in the order 22 of case in chief versus a random order by drawing the cards? 23 MR. NOMELLINI: Case in chief; O'Laughlin is always 24 ready. He ought to go first. 25 C.O. STUBCHAER: I don't want an opinion on somebody CAPITOL REPORTERS (916) 923-5447 9208 1 else. I just want to hear what your preference is. 2 MR. NOMELLINI: Case in chief order. 3 MR. BRANDT: Random. 4 MR. O'LAUGHLIN: Random. 5 UNIDENTIFIED VOICE: Random. 6 UNIDENTIFIED VOICE: Random. 7 UNIDENTIFIED VOICE: Random. 8 MEMBER DEL PIERO: They all answered, "Whatever the 9 Chair wants." 10 C.O. STUBCHAER: Sorry to put you in that difficult 11 position. 12 We will go -- next week we will draw the cards in a 13 random order and assign the order for rebuttal. 14 Now let's go on to Central Delta. 15 Mr. Nomellini, at last. 16 MEMBER DEL PIERO: Actually, it is Mr. Zuckerman. 17 C.O. STUBCHAER: Mr. Zuckerman, have you taken the 18 oath? 19 MR. ZUCKERMAN: Yes. It's been a terrible burden these 20 last several months. 21 C.O. STUBCHAER: It didn't expire. 22 ---oOo--- 23 DIRECT EXAMINATION OF CENTRAL DELTA PARTIES 24 BY MR. NOMELLINI 25 MR. NOMELLINI: Dante John Nomellini for Central Delta CAPITOL REPORTERS (916) 923-5447 9209 1 Parties, and as indicated Mr. Zuckerman has been sworn. I 2 have an opening statement I would like to make, Mr. 3 Chairman. 4 C.O. STUBCHAER: Proceed. 5 MR. NOMELLINI: First of all, the Central Delta Parties 6 have indicated their concern in opposition to piecemeal 7 settlement or approval of piecemeal settlement agreements as 8 related to the allocation of the burdens for meeting the 9 1995 Water Quality Control Plan. 10 As we have explained before, the basis of that concern 11 is that we don't think it is has been clearly described as 12 to what the bounds are of all the particular settlement 13 agreements and what the burden is that is going to be 14 allocated, so that a fair decision can be made with regard 15 to such a burden. And we have not seen a revised 16 environmental document that we feel embraces the scope of 17 the entire proceeding. 18 There is also the additional question as to whether or 19 not the narrative standard for the fish doubling is included 20 in this general allocation, and, if it is, we don't even 21 know how you characterize that in terms of flow or water 22 quality, and certainly we do not know how that relates to 23 the various tributaries. We intend to file some motions to 24 focus that. We haven't done it before, and I will not dwell 25 on that. CAPITOL REPORTERS (916) 923-5447 9210 1 We continue with our objection to the piecemeal 2 settlement. And as we understand the San Joaquin River 3 Agreement, the request is that you let these parties out of 4 the proceedings with no further obligation, the obligation 5 to be backstopped by the Bureau and the state. 6 You've probably gathered by now a pretty good feeling 7 of how we view the record of the state and federal agencies 8 in fulfilling their obligations. We have no faith in 9 that. I used the word "cheat" before, and I found a better 10 word after listening to the dialogue on TV. "Fudge" is the 11 word I am going to use. I think these people are fudging. 12 So we think that what should be done in this phase, and 13 we recognize this is a broad subject and there should be -- 14 there could be evaluation of a San Joaquin River Agreement 15 as modified, in our view, as representing a water transfer. 16 Now, the San Joaquin River needs a comprehensive plan. 17 We can't deal just with fish flows. We have to deal with 18 fish flows and water quality. And I would think we would 19 want to deal with even a broader reach of the San Joaquin 20 River than just the area between Vernalis and the Delta. 21 Your Phase V hearing has addressed the rest of the river. 22 And it seems to us that if you take just a segment of 23 this and you try to wrap it up, that you're not taking into 24 full consideration the various impacts on all the other 25 things you might want to do or have to do with regard to the CAPITOL REPORTERS (916) 923-5447 9211 1 San Joaquin River. So at the end of our testimony we 2 requested that you request the state and the Bureau to come 3 up with a comprehensive plan for the San Joaquin River that 4 would address the fish flows, the water quality, and, we 5 think, at least the stretch of the river up to Mendota. 6 So we don't get into the troubled position of trying to 7 push the elephant up the hill, which I think Alex is doing. 8 And as you will hear, we support Alex's effort as being a 9 very reasonable one. The South Delta effort in terms of 10 recirculation as an opportunity, if it can be integrated, 11 and we don't know what the fishery call is on it, but if it 12 can be integrated, it certainly makes sense that it would 13 reduce the burdens. 14 From our view, if we can't reduce the burdens, the 15 burden falls on the export contractors. And it falls 16 particularly on, of course, the State Water Project and the 17 federal, more appropriately, the federal. Because the 18 state has been volunteering to coordinate their operations, 19 wheel water for the feds, we think they have become joint 20 venturers or partners in this overall endeavor, and they 21 have a responsibility because they have added to the water 22 deliveries which, we think, in many ways cause a problem in 23 the San Joaquin River. 24 If -- there is money being thrown around. I guess it 25 is nobody's money because it is the taxpayers' money, not CAPITOL REPORTERS (916) 923-5447 9212 1 the project money. We are not comfortable. We, the Central 2 Delta Parties, are not comfortable with the expenditure of 3 public dollars, even though it is not our absolute 4 responsibility to police the public expenditure. We are not 5 comfortable with the way in which the money is being 6 expended and committed under this agreement without 7 identification of the sources of water and, clearly, the 8 amounts of water to be put forth. 9 Now, if money is available, we think it would be 10 appropriate that the money be used to purchase water from 11 the exporters, not the tributaries. Money purchased from 12 the exporters, not the tributaries. If, in fact, there is 13 no purchase, then the water should be withdrawn from the 14 project because only surplus water is to be exported the way 15 we see the Delta Protection Act. We view, of course, the 16 Delta Protection Act as putting salinity responsibility on 17 the Bureau and the state. 18 So, we are not against trying to work something out 19 with the least pain. But as a matter of our position, we 20 think the responsibility could very well fall on the export 21 contractors without any payment being associated with it. 22 We are not unwilling to sit back and even keep our mouth 23 shut and forget about some of these other concerns if it can 24 all be worked out. But we don't view that obligation as 25 necessarily one where you have to buy the water. CAPITOL REPORTERS (916) 923-5447 9213 1 Now, as we see what the Bureau is doing with their 2 operation of New Melones and their purchases from the 3 tributaries, we see them carrying out the Delta Accord and 4 what we call the dirty deal part of the Delta Accord. And 5 that is that they would get the water from the watersheds 6 while preserving a no-net loss to the export contractors. 7 In our view, that is flipping the Delta Protection Act right 8 -- it's just reversing it. That's the way we see it. 9 We see that what happens in that case, water users 10 within the watersheds of origin and the areas immediately 11 adjacent thereto, which we think Stockton East and Central 12 San Joaquin clearly fall in that category, the clearest 13 example in our mind, but they end up getting short of their 14 needs while we are maintaining a no-net loss for San Luis 15 Delta-Mendota Canal Authority, Westlands and the export 16 contractors. And we think that is directly contrary to what 17 the purpose and intent of the Watershed Act, Watershed 18 Protection Act, which was not directly or indirectly 19 deprived, I am going to use, areas of origin of all of their 20 needs. First priority is to have all their needs be met. 21 We see that as a reverse. 22 Now, going back to the San Joaquin River Agreement, the 23 San Joaquin River Agreement in itself seems to address only 24 the pulse flow for fish and only the October attraction flow 25 for fish. In our view, it ignores the other fishery needs CAPITOL REPORTERS (916) 923-5447 9214 1 during the balance of the year and, of course, what the flow 2 needs are in various tributaries. Because there is no 3 distinction as to where the water could come from the 4 various tributaries as to whether the water is needed in the 5 Merced or Tuolumne or the Stanislaus. And we heard the 6 presentations where Mr. O'Laughlin says we are telling you 7 the water is going to be there and that is all you have to 8 know. That isn't enough to take care of the fishery, in our 9 view. 10 The water quality I addressed. And, of course, the 11 need in the areas of origin are another of our concerns. 12 This San Joaquin River Agreement is a 12-year 13 agreement. And we think that that 12-year period is making 14 a major commitment on what we are going to do on the San 15 Joaquin that would interfere with solutions that we think 16 are necessary, and we would expect that the San Joaquin 17 River problem upstream of Vernalis cannot be ignored for 18 another 12 years. We think you are going to have to address 19 that. This has to play a part. 20 Now, if you look at this thing in kind of a rough way, 21 the export water or even the recirculation water is ideal 22 for providing a pulse flow for fish because water quality 23 isn't an absolute concern, and the water from the 24 tributaries, which we think would otherwise come down in the 25 summer or in it is real water, new water, maybe it should be CAPITOL REPORTERS (916) 923-5447 9215 1 purchased for summertime water quality control because the 2 east side tributary water is of much better quality, and we 3 can get more value for everybody. Not only control and 4 quality in the river for South Delta and Central Delta, but 5 even for the exporters by using that better quality water 6 for the dilution purposes. 7 So we see an opportunity here to kind of merge these 8 things together. The problem we see is that unless we have 9 real water, there wouldn't be any justification for paying 10 the east side tributaries $48,000,000 for just letting water 11 come down that would otherwise come down. We think it's 12 essential to this process and fairness to the people that 13 worked on the San Joaquin River Agreement to carefully 14 evaluate the source of water, but they haven't told us, and 15 they won't tell us. They haven't told you what they think 16 the source of water is actually going to be for each one of 17 their releases. 18 The structure of the agreement is not conducive to that 19 kind of analysis because it is written as a guarantee. We 20 don't know what that difference is going to be. So, it 21 makes it hard to give it a fair evaluation even for -- 22 especially for us. And looking at it, we suffer, of course, 23 from this paranoia of seeing all the wrong things being 24 done. 25 Now, we also were surprised to find that the testimony CAPITOL REPORTERS (916) 923-5447 9216 1 in support of the particular flows that are required for the 2 pulse flow is to be derived really -- the good -- the facts 3 are to be derived from this test, and what we have is an 4 experiment. And you heard us before at the end of Phase II 5 talking about the need for triennial review to revisit the 6 fish flow requirement, the pulse flow requirements. Now, in 7 our view if we can conduct an experiment and we have to get 8 more information, and we come before you and say, "We 9 supported experimentation. We don't think -- we don't 10 understand enough about the fishery. I think it is clear 11 that even the fish people need further information. We are 12 embarking on an experiment." 13 If we can conduct this experiment by fitting the 14 natural occurring flow, making sure like Fish and Game says 15 we have the smolts to do the test, but this year maybe it is 16 going to be wet. So we fit the wet. We need cooperation 17 with regard to the exporters to curtail the export to make 18 that test work. We get a point on the chart. Next year is 19 dry. We fit what we are going to have in terms of water, 20 make minor adjustments, and not release great amounts of 21 water to do this test. Then our conflict is reduced. Of 22 course, that takes away the 48,000,000 -- the justification 23 for $48,000,000 to go to east side tributaries, which we 24 think is a problem. But we can do this testing. Maybe it 25 will take us 14 years instead of 12 years. Maybe we will CAPITOL REPORTERS (916) 923-5447 9217 1 get the information that we need in the 12-year period 2 without putting additional water. 3 Now, the San Joaquin River Agreement in our view 4 aggravates what we call a wasteful use of water or an 5 unreasonable use of water. They have some kind of arbitrary 6 doubling thing where, if the natural flow falls in a certain 7 category, they are going to double the amount of releases. 8 We think that approach is wrong. We suspect that the reason 9 that they have agreed to double it is because they are 10 justifying earning the $48,000,000. We don't know of any 11 basic reason why you would create a double situation for the 12 experiment. 13 So, we would ask that -- and I think it is good that 14 the Board has said to all of us, "Maybe you guys can talk a 15 little more and maybe you can do that." 16 We don't like the deal making that's gone on. We think 17 part of the problem we are in is due to the fact we had a 18 deal in the Delta Accord. We think you adopted the 1995 19 Water Quality Control Plan based on the Delta Accord, and, 20 therefore, the scientific basis to support these things is 21 not there. We think that ought to be legitimately 22 revisited. Maybe the fish people would be cooperative. The 23 fish people have all told us this is an experiment. They 24 have told us that. There is a certain amount of momentum 25 that goes with every one of these agreements. The Delta CAPITOL REPORTERS (916) 923-5447 9218 1 Accord, geez, we don't want to upset the Delta Accord 2 because there are benefits to having people agree. 3 The fish people said, "Look, we are not sure we are 4 going get all these adjustments and everything if we don't 5 have agreement," and there is value to that. There is value 6 to it. When the agreement and the momentum behind it 7 carries the day, we think that is wrong and we think we have 8 to revisit it. 9 Maybe I can ask Mr. Zuckerman his qualifications. 10 C.O. STUBCHAER: Please. 11 MR. NOMELLINI: Mr. Zuckerman, I assume your 12 qualifications remain the same, except that you are older 13 now? 14 MR. ZUCKERMAN: Yes. Even older. 15 MEMBER DEL PIERO: That qualifies you for what 16 additional? 17 MR. NOMELLINI: He is an expert now. 18 Could you please briefly summarize your testimony? I 19 realize my opening statement covered some of the ground. 20 MR. ZUCKERMAN: It is -- my testimony was submitted 21 quite some time ago in the form of Central Delta Water 22 Agency Exhibit Number 22. I trust everybody has a copy of 23 it, so I won't -- although it is only three pages long, I 24 won't read it. 25 Basically, that testimony confirms many of the things CAPITOL REPORTERS (916) 923-5447 9219 1 that Mr. Nomellini just got finished stating: that we have 2 reviewed the Comprehensive Plan submitted by Alex Hildebrand 3 and South Delta Water Agency find it to be a reasonable 4 approach to solving the egregious problems of the San 5 Joaquin River as it affects everything downstream from the 6 head of the river itself and into the Delta. And we find 7 our review of the history and law of situation, that burden 8 of repairing that river really should rest primarily and in 9 the first instance upon the two projects that their 10 operations have so severely impacted it. 11 The solutions to this problem really are best 12 accomplished by adding water back into the river, not just 13 taking water that is already coming there and reallocating 14 it to different times of the year. We think that is well 15 within the purview of this Board to make those findings and 16 make those orders. 17 We set forth on the second page of my exhibit and onto 18 the third page six distinct steps that we would urge the 19 Board to take in that regard. And I think that summarizes 20 the testimony, and I would be happy to try to answer any 21 questions which anybody may thoroughly direct to me. 22 Thank you. 23 C.O. STUBCHAER: Thank you, Mr. Zuckerman for your very 24 quick and concise summary of your testimony. 25 Who wishes to cross-examine Mr. Zuckerman? CAPITOL REPORTERS (916) 923-5447 9220 1 Mr. Campbell, Mr. O'Laughlin, Mr. Birmingham. 2 Anyone else? 3 MR. NOMELLINI: Are we going to let him draw again? 4 C.O. STUBCHAER: We are shuffling. It only takes a 5 minute. 6 Here is the order: Mr. Campbell, Mr. Birmingham and 7 Mr. O'Laughlin. 8 Good afternoon again, Mr. Campbell. 9 ---oOo--- 10 CROSS-EXAMINATION OF CENTRAL DELTA WATER PARTIES 11 BY DEPARTMENT OF FISH AND GAME 12 BY MR. CAMPBELL 13 MR. CAMPBELL: Good afternoon, Mr. Zuckerman. I will 14 be very brief. 15 I just want to ask you about a comment on Page 2 of 16 your written testimony, first paragraph, top of the page, 17 it states -- I just want you to confirm this is still your 18 testimony. 19 Although we have not engaged fishery experts 20 to assist us, it appears from the evidence 21 produced in Phase II there is no correlation 22 between fishery flow at Vernalis and survival 23 of San Joaquin River salmon smolt. 24 (Reading.) 25 MR. ZUCKERMAN: Yes. I might add that the stack of CAPITOL REPORTERS (916) 923-5447 9221 1 papers in front of me is the testimony of the various 2 fishery experts and the cross-examination and so forth. I 3 reviewed that a couple times prior to my appearance here 4 today, and I believe that is a fair reading of the testimony 5 and cross-examination. 6 MR. CAMPBELL: In your testimony today, then, you are 7 relying exclusively on the testimony of the fishery experts 8 in Phase II, and you have, as you say, not engaged fishery 9 experts of your own to assist you in that process? 10 MR. ZUCKERMAN: Not at this time. 11 MR. CAMPBELL: No further questions. 12 Thank you. 13 C.O. STUBCHAER: Mr. Birmingham. 14 ---oOo--- 15 CROSS-EXAMINATION OF CENTRAL DELTA WATER PARTIES 16 BY SAN LUIS AND DELTA-MENDOTA WATER AUTHORITY AND 17 WESTLANDS WATER DISTRICT 18 BY MR. BIRMINGHAM 19 MR. BIRMINGHAM: Mr. Zuckerman, we have not met 20 before. My name is Tom Birmingham. I am a lawyer for 21 Westlands Water District and the San Luis and Delta-Mendota 22 Water Authority. 23 MR. ZUCKERMAN: Yes. 24 MR. BIRMINGHAM: I have some questions regarding your 25 testimony, Central Delta Water Exhibit 22. CAPITOL REPORTERS (916) 923-5447 9222 1 As I recall, you're, by training, a lawyer? 2 MR. ZUCKERMAN: That's correct. 3 MR. BIRMINGHAM: You are not by training an engineer? 4 MR. ZUCKERMAN: I am not. 5 MR. BIRMINGHAM: You are not by training a biologist? 6 MR. ZUCKERMAN: I am not. 7 MR. BIRMINGHAM: You are not by training a scientist? 8 MR. ZUCKERMAN: I am not. 9 MR. BIRMINGHAM: Do you have any experience developing 10 scientific experiments? 11 MR. ZUCKERMAN: Yes. 12 MR. BIRMINGHAM: Would you describe that experience for 13 us, please. 14 MR. ZUCKERMAN: Well, Central Delta Water Agency, you 15 should understand, is not the Metropolitan Water District of 16 Southern California in size. And over the years the agency 17 has participated in a number of experiments related to the 18 accumulation of salts in the soil, the study of fish screen 19 mechanisms and so forth. And it's more or less have been 20 left to Mr. Nomellini and myself to help design those 21 experiments and see to it that they are carried out in 22 coordination with the cooperative agencies that we have done 23 those experiments with. 24 In that regard I have certainly participated in setting 25 up scientific experiments. In my other business activities CAPITOL REPORTERS (916) 923-5447 9223 1 I have engaged in a number of similar types of activity. I 2 am not educated as a scientist of any nature, but I have 3 been involved in this process for particularly long enough 4 and heard enough about the subject, read enough about the 5 subject, that I sort of feel like an osmotic scientist, if 6 you will. 7 C.O. STUBCHAER: I tried that with math, and it didn't 8 work. 9 MR. ZUCKERMAN: I am somewhat familiar with the jargon 10 and certainly have been exposed to a lot of learning, 11 perhaps more in that area than it took to qualify me as a 12 lawyer in school. 13 MR. BIRMINGHAM: You're familiar with the jargon? 14 MR. ZUCKERMAN: Yes. 15 MR. BIRMINGHAM: What is the Wilcox & Rank Sum Test? 16 MR. ZUCKERMAN: I don't know. 17 MR. BIRMINGHAM: What is a T test. 18 MR. ZUCKERMAN: I don't know. 19 MR. NOMELLINI: I will object to this unless Birmingham 20 promises after the hearing to tell us what those are. 21 C.O. STUBCHAER: After the hearing, okay. Not part of 22 the hearing. 23 MEMBER DEL PIERO: I want to know what engineer prepped 24 you. They didn't teach that in any kind of environment or 25 water law class. CAPITOL REPORTERS (916) 923-5447 9224 1 C.O. STUBCHAER: The same questions he asked of Trinity. 2 MR. BIRMINGHAM: They are different, I think. I could 3 be wrong. 4 You have in your testimony, Central Delta Agency 5 Exhibit 22, a proposed number of scientific experiments; is 6 that correct? 7 MR. ZUCKERMAN: It isn't very long. Why don't you tell 8 me which part of it that you are specifically talking 9 about. 10 MR. BIRMINGHAM: Paragraph 6 on Page 3. 11 MR. ZUCKERMAN: Okay. Yes. 12 MR. BIRMINGHAM: You would agree with me, Mr. 13 Zuckerman, in designing an experiment to determine the 14 effects of barriers and rivers on fish, you would want to 15 consult with a biologist? 16 MR. ZUCKERMAN: Yeah. I am not sure that the impacts 17 of my testimony here is that Central Delta Water Agency is 18 proposing to conduct this experiment. It just occurs to us 19 that it may be possible to have cake and eat it too in the 20 case of Old River by, instead of having a solid barrier at 21 the Head of Old River, to have some kind of structure there 22 that would allow some of the San Joaquin River flow to pass 23 through the structure without the fish. Perhaps there would 24 be a win-win situation created. 25 MR. BIRMINGHAM: Let's go through your testimony in CAPITOL REPORTERS (916) 923-5447 9225 1 some kind of organized fashion. First, you say: 2 That Central Delta Water Agency supports the 3 South Delta Water Agency Comprehensive Plan 4 as submitted by Alex Hildebrand. (Reading.) 5 MR. ZUCKERMAN: Yes, sir. 6 MR. BIRMINGHAM: Which elements of the Comprehensive 7 Plan do you support, Mr. Zuckerman? 8 MR. ZUCKERMAN: What I can tell you is that in 9 preparation for my appearance here I read the testimony of 10 Alex Hildebrand, which was presented in advance as South 11 Delta Water Agency Number 51. And in general, we supported 12 all of the proposals that had been made there. 13 MR. BIRMINGHAM: Is it your understanding of the plan 14 that it has essentially three elements in terms of obtaining 15 water for purposes of the plan? 16 MR. ZUCKERMAN: Well, I can think of a way of 17 categorizing it into three, yes. 18 MR. BIRMINGHAM: It involves a recirculation element? 19 MR. ZUCKERMAN: Yes. 20 MR. BIRMINGHAM: It involves purchasing water from 21 contractors? 22 MR. ZUCKERMAN: Yes. 23 MR. BIRMINGHAM: And it involves using water which has 24 historically been delivered to areas outside the existing 25 place of use as described in the Burrows permits? CAPITOL REPORTERS (916) 923-5447 9226 1 MR. ZUCKERMAN: Yes. 2 MR. BIRMINGHAM: Have you done any kind of independent 3 analysis to determine how much water would have been 4 recirculated under the plan? 5 MR. ZUCKERMAN: I have done no independent analysis of 6 it, no, and I wouldn't feel qualified to do that 7 personally. 8 MR. BIRMINGHAM: Do you support Mr. Hildebrand's 9 clarification of the Comprehensive Plan that it should be -- 10 the recirculation element should be implemented only on a 11 no-net loss basis? By "no-net loss" I am referring to loss 12 of water to contractors. 13 MR. ZUCKERMAN: I wasn't aware that he had made that 14 clarification of it. I wasn't aware it was in what I read. 15 I probably would not support that. 16 MR. BIRMINGHAM: If I told you today in examination Mr. 17 Hildebrand said that he would advocate the recirculation 18 element only if it could be done on a no-net loss basis, you 19 would not support that? 20 MR. ZUCKERMAN: Not on a flat statement like that, 21 no. I believe there is a basic obligation to repair the 22 damage that has been done in the San Joaquin River by the 23 projects. I wouldn't condition the obligation to redress 24 that on a no-net loss basis. 25 MR. BIRMINGHAM: The next line in your testimony says CAPITOL REPORTERS (916) 923-5447 9227 1 that: 2 The South Delta Water Agency would like to 3 emphasize that exports of water from the 4 Delta are pursuant to Water Code Sections 5 12202, et seq. and 11460, et seq., limited to 6 water which is surplus to the needs of the 7 Delta and other areas of origin. 8 (Reading.) 9 MR. ZUCKERMAN: You said the "South Delta Water 10 Agency"; that wouldn't have been my testimony. 11 MR. BIRMINGHAM: Excuse me, I beg your pardon. The 12 Central Delta Water Agency. Let me restate the question. 13 The next line of your testimony, Central Delta Water Agency 14 Exhibit 22 states that: 15 The Central Delta Water Agency would like to 16 emphasize that exports of water from the 17 Delta are pursuant to Water Code Sections 18 12202, et seq. and 11460, et seq., limited to 19 water which is surplus to the needs of the 20 Delta and other areas have origin. 21 (Reading.) 22 MR. ZUCKERMAN: Yes. 23 MR. BIRMINGHAM: You would agree with me, Mr. 24 Zuckerman, that that statement is a legal contention? 25 MR. ZUCKERMAN: Yes. CAPITOL REPORTERS (916) 923-5447 9228 1 MR. BIRMINGHAM: And you have not quoted any provision 2 of the Water Code; you have paraphrased provisions of the 3 Water Code? 4 MR. ZUCKERMAN: That's correct. That is my 5 understanding of the meaning of the sections that are 6 mentioned there. 7 MR. BIRMINGHAM: Mr. Zuckerman, I have put on the 8 overhead a paragraph that I will represent to you is Water 9 Code Section 12202. 10 Are you familiar with Water Code Section 12202? 11 MR. ZUCKERMAN: Yes, I am. 12 MR. BIRMINGHAM: Were you present earlier today when I 13 examined Mr. Hildebrand on this section? 14 MR. ZUCKERMAN: Yes. 15 MR. BIRMINGHAM: You would agree with me, would you 16 not, that Water Code Section 12202 does not impose any 17 independent obligation on the United States to operate the 18 Federal Central Valley Project to meet the salinity control 19 and supply water to users in the Delta? 20 MR. ZUCKERMAN: I think what it fairly does is it 21 recognizes that there is an independent obligation of the 22 Central Valley Project to do that. I didn't participate in 23 the drafting of that statute, but I would assume that the 24 people that drafted it were well aware of the existing state 25 of the law at that time and didn't feel it was necessary to CAPITOL REPORTERS (916) 923-5447 9229 1 restate the obvious. 2 MR. BIRMINGHAM: Then the answer to my question is that 3 you would agree with me that Water Code Section 12202 does 4 not impose an independent obligation on the Bureau of 5 Reclamation? 6 MR. ZUCKERMAN: I think it implicitly recognizes that 7 there is an obligation. And I wouldn't agree with your 8 characterization. This may be splitting hairs, but, you 9 know, quite frankly I think this in the nature of an 10 argument. When we get around to briefing the subject, I 11 think we can state our different views on it. 12 MR. BIRMINGHAM: In response -- 13 MR. ZUCKERMAN: You will have a tough time getting me 14 to change my mind under cross-examination. 15 MR. BIRMINGHAM: Mr. Zuckerman, in response to my 16 question you said that the drafters of this section 17 recognized that there is an independent obligation on the 18 part of the United States with respect to meeting salinity 19 control and providing water in the Delta -- 20 MR. ZUCKERMAN: Yes. 21 MR. BIRMINGHAM: -- is that correct? 22 My question pertains to the affect of this particular 23 section. This section, Mr. Zuckerman, applies to the 24 functions of the State Water Resources Development System; 25 isn't that correct? CAPITOL REPORTERS (916) 923-5447 9230 1 MR. ZUCKERMAN: That is its direct subject of the 2 sentence, first sentence of the section. 3 MR. BIRMINGHAM: The subject of the first sentence of 4 the section is the functions of the State Water Resources 5 Development System? 6 MR. ZUCKERMAN: Yes. 7 MR. BIRMINGHAM: The affect of the clause in 8 coordination with activities of the United States suggests 9 that in the operation of the State Water Resources 10 Development System the operators of that system coordinated 11 their effort to meet salinity control and provide water to 12 water users in the Delta with the efforts of the United 13 States? 14 MR. ZUCKERMAN: My interpretation of this section is 15 that it recognizes that each of the projects has an 16 independent obligation to do that, and that they should 17 cooperate amongst themselves in carrying out that 18 independent function. 19 MR. BIRMINGHAM: So, if we want to define the source of 20 the United States' independent obligation to do that, we 21 would have to look to some other provision of law? 22 MR. ZUCKERMAN: It certainly exists in other provisions 23 of law. 24 MR. BIRMINGHAM: But this section of the Water Code 25 does not impose that independent obligation on the United CAPITOL REPORTERS (916) 923-5447 9231 1 States? 2 MR. ZUCKERMAN: I wouldn't agree with that. 3 MR. BIRMINGHAM: What other provisions of law, Mr. 4 Zuckerman, imposes an obligation on the Bureau of 5 Reclamation to meet water quality standards in the Delta? 6 MR. ZUCKERMAN: Well, there are a couple court cases 7 that come to mind. One decided even before I started 8 practicing law. The Ivanhoe versus McCracken case is the 9 title of it. And one in which I participated, which is 10 referred to as the Racanelli decision, which was the review 11 of this Board's hearing in these proceedings, and I believe 12 decision 1379 or 1485. I don't recall which one. 13 In addition, there are statutory provisions which I 14 think have a bearing on it. I have had the opportunity over 15 the years to review the legislative history of the Central 16 Valley Project Act in some detail. And that record was 17 presented in both of those cases, as I recall, and the 18 conclusion of the judge in those cases was that it did 19 impose federal law, imposed independent obligation on the 20 Bureau when read in conjunction with Section VIII of the 21 Reclamation Act of 1902. There are various other state 22 statutes that have some bearing on the issue. We can go on 23 and on. But I think this is something that's been settled, 24 settled law, and debating it in this context is a little 25 ridiculous. CAPITOL REPORTERS (916) 923-5447 9232 1 MR. BIRMINGHAM: Well, Mr. Zuckerman, maybe you can 2 specifically identify the other state statutes to which you 3 just referred? 4 MR. ZUCKERMAN: Well, I think Section 11460 has a lot 5 to do with it. I don't have 10505, et seq., clearly in mind 6 right now; I would want to review those sections as well. 7 The other provisions of the Delta Protection Act. There are 8 statutes dealing specifically with the San Joaquin River 9 which I would want to go back and look at, and probably some 10 other case law that escapes my memory at the moment. 11 MR. BIRMINGHAM: Your point is that debating it here in 12 the form of testimony and cross-examination is not 13 particularly productive? 14 MR. ZUCKERMAN: I think it is settled law. And the 15 purpose of quoting it in my testimony was not to argue, but 16 is to take note of the fact that it is settled law. 17 MR. BIRMINGHAM: Your testimony states on Page 1, 18 Central Delta Water agency Exhibit 22: 19 The burden of providing water to meet the 20 fishery flow and water quality requirements 21 at Vernalis is rightfully that of the 22 exporters from the Delta. (Reading.) 23 MR. ZUCKERMAN: That is my opinion. 24 MR. BIRMINGHAM: That is what we lawyers would call an 25 ultimate conclusion; is that correct? CAPITOL REPORTERS (916) 923-5447 9233 1 MR. ZUCKERMAN: I was never quite sure what the 2 distinction between ultimate conclusions and, what is the 3 other one, ultimate material facts, whatever it was. 4 MR. BIRMINGHAM: That is the ultimate conclusion that 5 you would like this Water Board to reach, isn't that right, 6 that the burden of providing water to meet fishery flow? 7 MR. ZUCKERMAN: Yes. 8 MR. BIRMINGHAM: And water quality requirements at 9 Vernalis is the obligation of the exporters? 10 MR. ZUCKERMAN: I believe that is also settled law. 11 MR. BIRMINGHAM: You would agree with me, Mr. 12 Zuckerman, that not everyone would agree with your 13 conclusion that that is settled law? 14 MR. ZUCKERMAN: Well, do I still beat my wife, also? 15 MEMBER DEL PIERO: A lot more interesting question. 16 MR. ZUCKERMAN: Whatever you believe is in your 17 domain. 18 MR. BIRMINGHAM: Mr. Zuckerman, you said that you 19 believe that that is settled law. There are knowledgeable 20 water lawyers whom you respect that don't necessarily agree 21 that that is settled law? 22 MR. ZUCKERMAN: I am not sure I agree with that. 23 UNIDENTIFIED VOICE: Use the microphone. 24 MR. ZUCKERMAN: I am not sure I would agree with that. 25 MR. BIRMINGHAM: You say that the burden of providing CAPITOL REPORTERS (916) 923-5447 9234 1 water to meet fishery flow, the water quality requirements 2 at Vernalis is rightfully that of the exporters? 3 MR. ZUCKERMAN: That is correct. 4 MR. BIRMINGHAM: Let's break it down in terms of 5 fishery flows. Now, when we were talking about fishery 6 flows in this context, we are talking about fishery flows on 7 the San Joaquin River? 8 MR. ZUCKERMAN: Okay. 9 MR. BIRMINGHAM: I am asking you the question. Is that 10 what you were referring to? 11 MR. ZUCKERMAN: Yes. 12 MR. BIRMINGHAM: Are you referring to fishery flows in 13 any other tributary to the Delta? 14 MR. ZUCKERMAN: The reason I'm hesitating is that the 15 San Joaquin River splits into a number of channels as it 16 enters the Delta, and there is a number of tributaries to it 17 on the way down. My reference to it was in the larger sense 18 of the whole system. 19 MR. BIRMINGHAM: When you say "the whole system," are 20 you referring to the San Joaquin system? 21 MR. ZUCKERMAN: Yes. 22 MR. BIRMINGHAM: Why is it your view that the 23 obligation to meet fishery flows in the San Joaquin River is 24 an obligation that is rightfully the exporters? 25 MR. ZUCKERMAN: Well, you know, I didn't study science CAPITOL REPORTERS (916) 923-5447 9235 1 in college. I did study history. At one point I even 2 reviewed the history of the Central Valley Project as I 3 think I indicated earlier. In the scheme of the Central 4 Valley Project, just to refresh everybody's recollection, 5 was to dam the San Joaquin River at Friant and divert a 6 large percentage of its flow into an area which was not the 7 watershed of the San Joaquin River, largely to the south. 8 In order to meet the obligations or water rights of the 9 people who were accustomed to taking water below Friant Dam, 10 a dam or two was constructed on the Sacramento River, a 11 pumping facility, a cross-channel canal was constructed that 12 delivered water from the Sacramento River system essentially 13 to the Mendota Pool. So that water that had been otherwise 14 diverted from the San Joaquin River could be replaced to 15 meet the needs of the lower part of the San Joaquin River. 16 Now I think that is a fundamental, historical fact 17 relating to the Bureau of Reclamation that needs to be kept 18 in mind here. That would be the beginning of that response 19 to that question. 20 MR. BIRMINGHAM: We will explore this a little further, 21 Mr. Zuckerman. 22 C.O. STUBCHAER: Mr. Birmingham, just for planning 23 purposes, how long do you think your examination of Mr. 24 Zuckerman will take? 25 MR. BIRMINGHAM: I anticipated that it was going to CAPITOL REPORTERS (916) 923-5447 9236 1 take ten minutes, but it is going to take significantly 2 longer. 3 C.O. STUBCHAER: Mr. O'Laughlin, how long do you think 4 your examination of Mr. Zuckerman will take? 5 MR. O'LAUGHLIN: About 15 minutes to a half hour. 6 C.O. STUBCHAER: Thank you. 7 Proceed. 8 MEMBER DEL PIERO: Qualify that; he said "maybe." 9 MR. BIRMINGHAM: Mr. Zuckerman, your testimony on Page 10 1 of Central Delta Water Agency Exhibit 22 makes reference 11 to the exporters; is that correct? 12 MR. ZUCKERMAN: Yes. 13 MR. BIRMINGHAM: By exporters you mean the Central 14 Valley Project and State Water Project? 15 MR. ZUCKERMAN: That's correct. 16 MR. BIRMINGHAM: The State Water Project is a project 17 operated by the State of California? 18 MR. ZUCKERMAN: Largely. It's -- the whole subject 19 gets a little confused by the coordinated Operating 20 agreements and the fiscal interties between the two projects 21 that occurred over the last couple of decades. 22 MR. BIRMINGHAM: Mr. Zuckerman, you would agree with me 23 that the State Water Project has not diminished flows on the 24 San Joaquin River? 25 MR. ZUCKERMAN: I couldn't agree with that. CAPITOL REPORTERS (916) 923-5447 9237 1 MR. BIRMINGHAM: Mr. Zuckerman, perhaps you can 2 identify for me where along the San Joaquin River or any of 3 its tributaries the State Water Project takes some action 4 which modifies the flows in the San Joaquin River or its 5 tributaries. 6 MR. ZUCKERMAN: Because of coordinated operations of 7 the two projects and the way they account for the water 8 usage, it's hard to distinguish between what one project is 9 doing from what the other is doing in terms of their impact 10 on the river. Certainly, the Bureau is a much larger factor 11 because they actually have and operate two dams on tributary 12 streams. But the joint use facility at San Luis and the 13 intertie between the two canals and so forth makes the whole 14 subject extremely complex. 15 MR. BIRMINGHAM: Let's go back to my question, Mr. 16 Zuckerman. Does the State Water Project at any point 17 operate a facility which somehow impairs flow on the San 18 Joaquin River or its tributaries? 19 MR. ZUCKERMAN: Well, it doesn't have on-stream 20 reservoirs or dams in the San Joaquin system. They do 21 participate in the operations of San Luis Dam, Clifton 22 Court Forebay and to some degree the decisions which canal 23 or which pumping facility is going to be used to deliver 24 water to those and in the decisions that are made as to how 25 much water is delivered to Mendota and otherwise finds its CAPITOL REPORTERS (916) 923-5447 9238 1 way into the San Joaquin River. 2 I don't have the specifics of this. I am just familiar 3 with the fact that the two projects coordinate their 4 operations and to some extent jointly affect the lower part 5 of the San Joaquin River. 6 MR. NOMELLINI: I've been quiet. I've been assuming 7 that when you're talking about the San Joaquin River, Mr. 8 Birmingham, you are talking about the San Joaquin River 9 upstream of Vernalis. The San Joaquin River, you know, 10 extends well into the Delta. 11 MR. BIRMINGHAM: I'm aware of that. Thank you for the 12 clarification. Yes, we are talking about San Joaquin River 13 upstream of Vernalis. 14 MR. NOMELLINI: Okay. 15 MR. BIRMINGHAM: We can talk about the San Joaquin 16 River upstream of the City of Stockton. 17 MR. ZUCKERMAN: I presume that we don't need to talk 18 about the part of it downstream from the City of Stockton, 19 that we would all agree that the State Project has a major 20 impact upon those sections of the river. 21 MR. BIRMINGHAM: The Water Quality Control Plan that we 22 are talking about implementing in terms of its flows on the 23 San Joaquin River, those flows are measured at Vernalis; is 24 that correct, Mr. Zuckerman? 25 MR. ZUCKERMAN: I am going to ask you to restate the CAPITOL REPORTERS (916) 923-5447 9239 1 question; I missed the first part of it. 2 MR. BIRMINGHAM: We are here talking about 3 implementation of the 1995 Water Quality Control Plan? 4 MR. ZUCKERMAN: Actually, I understood what we are 5 here talking about at this phase is the San Joaquin River 6 Agreement as well. 7 MR. BIRMINGHAM: The flow standards that are contained 8 in the 1995 Water Quality Control Plan for the San Francisco 9 Bay, Sacramento-San Joaquin Delta Estuary 95-1 WR, May 1995, 10 for the San Joaquin River are measured at Vernalis; is that 11 correct? 12 MR. ZUCKERMAN: Among other locations. 13 MR. BIRMINGHAM: The other location is the Airport Way 14 Bridge? 15 MR. ZUCKERMAN: Well, and indirectly at San Andreas 16 Landing, Jersey Point and some other places within the 17 Delta. 18 MR. BIRMINGHAM: I am handing you the 1995 Water 19 Quality Control Plan, Mr. Zuckerman. I am referring to Page 20 19, Table 3. It refers to river flows; is that correct? 21 MR. ZUCKERMAN: Yes. 22 MR. BIRMINGHAM: The flows for the San Joaquin River 23 are measured at Airport Way Bridge and Vernalis; is that 24 correct? 25 MR. ZUCKERMAN: Yes, but I would stand by the other CAPITOL REPORTERS (916) 923-5447 9240 1 answer because we are all familiar with the fact that flow 2 and water quality are interconnected in the Delta. Once you 3 get down into the Delta, the traditional measurement of flow 4 has been in terms of water quality. So there is a -- even 5 though that section of the order itself talks about river 6 flows, there is another section that talks about water 7 quality measuring stations downstream of the Delta, which 8 are affected by flow. 9 That was the point of my -- I am not trying to be 10 evasive; that was the point of my answer. 11 MR. BIRMINGHAM: In terms of the amount of water that 12 reaches Vernalis, does the State Water Project operate any 13 facility that affects the amount of flow reaching Vernalis? 14 MR. ZUCKERMAN: Yes. 15 MR. BIRMINGHAM: What facility is that? 16 MR. ZUCKERMAN: Well, it's the Banks Pumping Plant, the 17 California Aqueduct, the O'Neal Forebay and San Luis 18 Reservoir. 19 C.O. STUBCHAER: Mr. Birmingham, before you continue 20 on, I want to discuss the order of the proceedings a 21 moment. 22 We said at the beginning of this hearing and in the 23 hearing notice that we were going to go nine to five on most 24 days. It's obvious that the cross-examination of Mr. 25 Zuckerman isn't going to be completed by four. CAPITOL REPORTERS (916) 923-5447 9241 1 Would it be possible to continue after four today if 2 the parties desire and no one objects, but if anyone objects 3 we will not go past four. 4 Mr. Herrick. 5 MR. HERRICK: I would comment there is a CalFed 6 workshop today at 6:30. 7 MEMBER DEL PIERO: We have a dinner to go to at 6:00. 8 MR. HERRICK: It should be at the convenience of the 9 witness, but I would like to bring that to your attention. 10 MEMBER DEL PIERO: I think that is why the Chair was 11 suggesting we go on, but only to about a quarter to six. 12 MR. O'LAUGHLIN: I don't -- 13 C.O. BROWN: If necessary. 14 MR. O'LAUGHLIN: Given the extent of Mr. Zuckerman's 15 testimony in areas that we are going into right now, I 16 originally thought it was going to take 15 minutes to 30 17 minutes to complete Mr. Zuckerman. I don't believe, based 18 on the responses to questions that Mr. Birmingham is 19 receiving, that my cross-examination will be completed in 20 such time. It is probably going to be fairly more extensive 21 than that. I can't promise you that if you go past four, 22 that given the time constraints, that we would finish Mr. 23 Zuckerman today. I just don't believe that is going to 24 happen. 25 C.O. STUBCHAER: Mr. Nomellini. CAPITOL REPORTERS (916) 923-5447 9242 1 MR. NOMELLINI: I would rather come back on Tuesday 2 than stay late because we do have that CalFed workshop in 3 Lodi tonight. 4 C.O. STUBCHAER: In Lodi? 5 MR. NOMELLINI: In Lodi. 6 C.O. STUBCHAER: We thought it was here. 7 MR. NOMELLINI: No, it is down there. So I would -- in 8 order to have time to eat, although I may look like I don't 9 need to eat, and get to the meeting, it would be better -- 10 we are going to have to spend some time, anyway. 11 C.O. STUBCHAER: That makes the decision clear, then. 12 We will adjourn until Tuesday. 13 Mr. Birmingham, wait a minute. I am sorry, one more 14 question that you have to get in today? 15 MR. BIRMINGHAM: No, no more questions that I have to 16 get in today. 17 C.O. STUBCHAER: Can you come back Tuesday, Mr. 18 Zuckerman? 19 MR. ZUCKERMAN: I can, but I can't be here on 20 Wednesday. 21 MEMBER DEL PIERO: We have to allocate enough time for 22 Ms. Koeller, who also has a problem on Wednesday. 23 MR. ZUCKERMAN: I can't be here Thursday, either. I 24 am leaving the state Wednesday morning at 9:00. 25 C.O. STUBCHAER: I understand. CAPITOL REPORTERS (916) 923-5447 9243 1 MR. ROBERTS: Mr. Chairman, Central San Joaquin, we are 2 to follow Central Delta Water. We can be here Tuesday 3 morning, also. I know you had indicated that the National 4 Heritage Institute was going on Tuesday. 5 C.O. STUBCHAER: You can or cannot? 6 MR. ROBERTS: We can be here Tuesday morning. 7 C.O. STUBCHAER: We will try and accommodate. You 8 can't be here Wednesday? 9 MR. ROBERTS: We would be here Tuesday. I would like 10 to know what you are going to do. 11 C.O. STUBCHAER: Would you like a time certain so you 12 don't have to be here Tuesday; is that it? 13 MR. ROBERTS: Either way. We can be here Tuesday 14 morning or Wednesday morning. 15 C.O. STUBCHAER: The problem is we can't guarantee that 16 you would get on Tuesday. 17 MR. ROBERTS: I understand. 18 C.O. STUBCHAER: If you would prefer to, in effect, 19 have a time certain Wednesday morning, I would be willing to 20 give you that courtesy, if you are here. 21 MR. ROBERTS: That is agreeable with my witness. We'll 22 see you Wednesday morning. 23 MR. CAMPBELL: Mr. Chairman. 24 C.O. STUBCHAER: Mr. Campbell. 25 MR. CAMPBELL: It may not be possible to give them a CAPITOL REPORTERS (916) 923-5447 9244 1 time certain on Wednesday if Save the Bay starts on Tuesday 2 and continues through Wednesday, unless it is your wish to 3 break up the -- 4 MR. BRANDT: Save the Bay can't be here on Wednesday. 5 C.O. STUBCHAER: Right. Most everybody wants Tuesday. 6 See you Wednesday -- 7 MR. BIRMINGHAM: Excuse me, Mr. Stubchaer. 8 C.O. STUBCHAER: Mr. Birmingham. 9 MR. BIRMINGHAM: I wonder if rather than making Central 10 San Joaquin come back, the testimony which has been 11 submitted is very brief. I wonder if the parties that are 12 present who generally are the parties that would like to 13 cross-examine could simply stipulate to the admission of the 14 written testimony without cross-examination. 15 C.O. STUBCHAER: Well, no one has to cross-examine. I 16 have a list of people who want to cross-examine. It's only 17 Mr. O'Laughlin remaining. If you both waive your 18 cross-examination -- oh, you said Central San Joaquin. 19 MR. BIRMINGHAM: Central San Joaquin does not have to 20 come back. 21 MEMBER FORSTER: I thought you were talking about him. 22 C.O. STUBCHAER: When he said Central, I tuned out the 23 rest. 24 Go ahead. 25 MR. ROBERTS: That is fine with my witness. We have CAPITOL REPORTERS (916) 923-5447 9245 1 two exhibits to introduce. If there is a stipulation, we 2 would ask they be introduced with no objection. Then I can 3 submit, in effect, the policy statement later on, if 4 necessary. 5 MR. BIRMINGHAM: As I understand it, the only two 6 exhibits are the testimony and the Central San Joaquin 7 Contract? 8 MR. ROBERTS: That's correct. 9 C.O. STUBCHAER: Is there anyone who wishes to 10 cross-examine Central San Joaquin Water Conservation 11 District? 12 Are there any objections to stipulating that their 13 exhibits will be accepted? 14 Staff, Ms. Leidigh. 15 MS. LEIDIGH: Just a sort of procedural point. Perhaps 16 Mr. Roberts ought to have his witness at least testify that 17 the testimony is true and correct, so that it is not 18 hearsay. 19 MR. BIRMINGHAM: He signed it under penalty of perjury. 20 MR. ROBERTS: It will just take a minute if he can be 21 sworn in, please. 22 (C.O. Stubchaer administers the oath.) 23 ---oOo--- 24 // 25 // CAPITOL REPORTERS (916) 923-5447 9246 1 DIRECT EVIDENCE OF 2 CENTRAL SAN JOAQUIN WATER CONSERVATION DISTRICT 3 BY MR. ROBERTS 4 MR. ROBERTS: For the record, my name is Reed 5 Roberts. I am counsel for the Central San Joaquin Water 6 Conservation District. Present with me today Grant 7 Thompson, the past president of the Board of Directors. 8 Mr. Thompson, you have been sworn in by the Chair. 9 First of all, I would refer to Exhibit 1 which we 10 previously submitted to the Board. You have read that 11 document, have you not? 12 MR. THOMPSON: Yes. 13 MR. ROBERTS: The contents contained in there are true 14 and correct, are they not? 15 MR. THOMPSON: That's right. 16 MR. ROBERTS: That document was signed by you back in 17 May, May 29th of 1998, and there are no changes to the 18 document; is that correct? 19 MR. THOMPSON: That is correct. 20 MR. ROBERTS: In addition we have submitted Exhibit 21 Number 2, which is a photocopy of our contract with the 22 United States for water service out of New Melones. 23 You have read and reviewed a copy of that agreement; 24 is that correct? 25 MR. THOMPSON: Yes. CAPITOL REPORTERS (916) 923-5447 9247 1 MR. ROBERTS: It appears to be a true and correct copy 2 of that agreement? 3 MR. THOMPSON: Yes. 4 MR. ROBERTS: I would submit the matter and ask that 5 Exhibits 1 and 2 be submitted into evidence. 6 C.O. STUBCHAER: I will ask again, we already asked 7 this. Are there any objections to the acceptance of these 8 exhibits? 9 Seeing none, they are accepted. 10 MR. ROBERTS: Thank you. 11 C.O. STUBCHAER: Thank you, Mr. Roberts. 12 Thank you, Mr. Thompson. 13 And, Mr. Birmingham, thank you for your streamlined 14 suggestion. 15 We are adjourned -- anything before we adjourn? 16 We are adjourned until 9:00 a.m., Tuesday the 26th. 17 (