STATE WATER RESOURCES CONTROL BOARD PUBLIC HEARING 1998 BAY-DELTA WATER RIGHTS HEARING HELD AT 901 P STREET SACRAMENTO, CALIFORNIA TUESDAY, JANUARY 26, 1999 9:00 A.M. Reported by: MARY GALLAGHER, CSR #10749 CAPITOL REPORTERS (916) 923-5447 1 APPEARANCES ---oOo--- 2 3 BOARD MEMBERS: 4 JAMES STUBCHAER, CO-HEARING OFFICER JOHN W. BROWN, CO-HEARING OFFICER 5 MARC DEL PIERO MARY JANE FORSTER 6 7 STAFF MEMBERS: 8 THOMAS HOWARD - Supervising Engineer VICTORIA A. WHITNEY - Senior Engineer 9 10 COUNSEL: 11 WILLIAM R. ATTWATER - Chief Counsel WALTER PETTIT - Executive Director 12 BARBARA LEIDIGH - Senior Staff Counsel 13 ---oOo--- 14 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 9251 1 REPRESENTATIVES 2 PRINCETON CODORA GLENN IRRIGATION DISTRICT, et al. 3 FROST, DRUP & ATLAS 4 134 West Sycamore STreet Willows, California 95988 5 BY: J. MARK ATLAS, ESQ. 6 JOINT WATER DISTRICTS: 7 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 8 Oroville, California 95965 BY: WILLIAM H. BABER, III, ESQ. 9 CALIFORNIA SPORTFISHING PROTECTION ALLIANCE: 10 ROBERT J. BAIOCCHI 11 P.O. Box 357 Quincy, California 95971 12 BELLA VISTA WATER DISTRICT: 13 BRUCE L. BELTON, ESQ. 14 2525 Park Marina Drive, Suite 102 Redding, California 96001 15 WESTLANDS WATER DISTRICT: 16 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 17 400 Capitol Mall, 27th Floor Sacramento, California 95814 18 BY: THOMAS W. BIRMINGHAM, ESQ. AMELIA MINABERRIGARAI, ESQ. 19 THE BAY INSTITUTE OF SAN FRANCISCO: 20 GRAY BOBKER 21 55 Shaver Street, Suite 330 San Rafael, California 94901 22 CITY OF ANTIOCH, et al.: 23 FREDERICK BOLD, JR., ESQ. 24 1201 California Street, Suite 1303 San Francisco, California 94109 25 CAPITOL REPORTERS (916) 923-5447 9252 1 REPRESENTATIVES 2 LEAGUE OF WOMEN VOTERS: 3 ROBERTA BORGONOVO 4 2480 Union Street San Francisco, California 94123 5 UNITED STATES DEPARTMENT OF THE INTERIOR: 6 OFFICE OF THE SOLICITOR 7 2800 Cottage Way, Roon E1712 Sacramento, California 95825 8 BY: ALF W. BRANDT, ESQ. 9 CALIFORNIA URBAN WATER AGENCIES: 10 BYRON M. BUCK 455 Capitol Mall, Suite 705 11 Sacramento, California 95814 12 RANCHO MURIETA COMMUNITY SERVICES DISTRICT: 13 MCDONOUGH, HOLLAND & ALLEN 555 Capitol Mall, 9th Floor 14 Sacramento, California 95814 BY: VIRGINIA A. CAHILL, ESQ. 15 CALIFORNIA DEPARTMENT OF FISH AND GAME: 16 OFFICE OF THE ATTORNEY GENERAL 17 1300 I Street, Suite 1101 Sacramento, California 95814 18 BY: MATTHEW CAMPBELL, ESQ. 19 NATURAL RESOURCES DEFENSE COUNCIL: 20 HAMILTON CANDEE, ESQ. 71 Stevenson Street 21 San Francisco, California 94105 22 ARVIN-EDISON WATER STORAGE DISTRICT, et al.: 23 DOOLEY HERR & WILLIAMS 3500 West Mineral King Avenue, Suite C 24 Visalia, California 93191 BY: DANIEL M. DOOLEY, ESQ. 25 CAPITOL REPORTERS (916) 923-5447 9253 1 REPRESENTATIVES 2 SACRAMENTO MUNICIPAL UTILITY DISTRICT: 3 LESLIE A. DUNSWORTH, ESQ. 4 6201 S Street Sacramento, California 95817 5 SOUTH SAN JOAQUIN IRRIGATION DISTRICT, et al.: 6 BRAY, GEIGER, RUDQUIST & NUSS 7 311 East Main Street, 4th Floor Stockton, California 95202 8 BY: STEVEN P. EMRICK, ESQ. 9 EAST BAY MUNICIPAL UTILITY DISTRICT: 10 EBMUD OFFICE OF GENERAL COUNSEL 375 Eleventh Street 11 Oakland, California 94623 BY: FRED ETHERIDGE, ESQ. 12 GOLDEN GATE AUDUBON SOCIETY: 13 ARTHUR FEINSTEIN 14 2530 San Pablo Avenue, Suite G Berkeley, California 94702 15 CONAWAY CONSERVANCY GROUP: 16 UREMOVIC & FELGER 17 P.O. Box 5654 Fresno, California 93755 18 BY: WARREN P. FELGER, ESQ. 19 THOMES CREEK WATER ASSOCIATION: 20 THOMES CREEK WATERSHED ASSOCIATION P.O. Box 2365 21 Flournoy, California 96029 BY: LOIS FLYNNE 22 COURT APPOINTED REPS OF WESTLANDS WD AREA 1, et al.: 23 LAW OFFICES OF SMILAND & KHACHIGIAN 24 601 West Fifth Street, Seventh Floor Los Angeles, California 90075 25 BY: CHRISTOPHER G. FOSTER, ESQ. CAPITOL REPORTERS (916) 923-5447 9254 1 REPRESENTATIVES 2 CITY AND COUNTY OF SAN FRANCISCO: 3 OFFICE OF THE CITY ATTORNEY 4 1390 Market Street, Sixth Floor San Francisco, California 94102 5 BY: DONN W. FURMAN, ESQ. 6 CAMP FAR WEST IRRIGATION DISTRICT, et al.: 7 DANIEL F. GALLERY, ESQ. 926 J Street, Suite 505 8 Sacramento, California 95814 9 BOSTON RANCH COMPANY, et al.: 10 J.B. BOSWELL COMPANY 101 West Walnut Street 11 Pasadena, California 91103 BY: EDWARD G. GIERMANN 12 SAN JOAQUIN RIVER GROUP AUTHORITY, et al.: 13 GRIFFIN, MASUDA & GODWIN 14 517 East Olive Street Turlock, California 95381 15 BY: ARTHUR F. GODWIN, ESQ. 16 NORTHERN CALIFORNIA WATER ASSOCIATION: 17 RICHARD GOLB 455 Capitol Mall, Suite 335 18 Sacramento, California 95814 19 PLACER COUNTY WATER AGENCY, et al.: 20 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 400 Capitol Mall, 27th Floor 21 Sacramento, California 95814 BY: JANET GOLDSMITH, ESQ. 22 ENVIRONMENTAL DEFENSE FUND: 23 THOMAS J. GRAFF, ESQ. 24 5655 College Avenue, Suite 304 Oakland, California 94618 25 CAPITOL REPORTERS (916) 923-5447 9255 1 REPRESENTATIVES 2 CALAVERAS COUNTY WATER DISTRICT: 3 SIMON GRANVILLE 4 P.O. Box 846 San Andreas, California 95249 5 CHOWCHILLA WATER DISTRICT, et al.: 6 GREEN, GREEN & RIGBY 7 P.O. Box 1019 Madera, California 93639 8 BY: DENSLOW GREEN, ESQ. 9 CALIFORNIA FARM BUREAU FEDERATION: 10 DAVID J. GUY, ESQ. 2300 River Plaza Drive 11 Sacramento, California 95833 12 SANTA CLARA VALLEY WATER DISTRICT: 13 MORRISON & FORESTER 755 Page Mill Road 14 Palo Alto, California 94303 BY: KEVIN T. HAROFF, ESQ. 15 CITY OF SHASTA LAKE: 16 ALAN N. HARVEY 17 P.O. Box 777 Shasta Lake, California 96019 18 COUNTY OF STANISLAUS: 19 MICHAEL G. HEATON, ESQ. 20 926 J Street Sacramento, California 95814 21 GORRILL LAND COMPANY: 22 GORRILL LAND COMPANY 23 P.O. Box 427 Durham, California 95938 24 BY: DON HEFFREN 25 CAPITOL REPORTERS (916) 923-5447 9256 1 REPRESENTATIVES 2 SOUTH DELTA WATER AGENCY: 3 JOHN HERRICK, ESQ. 4 3031 West March Lane, Suite 332 East Stockton, California 95267 5 COUNTY OF GLENN: 6 NORMAN Y. HERRING 7 525 West Sycamore Street Willows, California 95988 8 REGIONAL COUNCIL OF RURAL COUNTIES: 9 MICHAEL B. JACKSON 10 1020 Twelfth Street, Suite 400 Sacramento, California 95814 11 DEER CREEK WATERSHED CONSERVANCY: 12 JULIE KELLY 13 P.O. Box 307 Vina, California 96092 14 DELTA TRIBUTARY AGENCIES COMMITTEE: 15 MODESTO IRRIGATION DISTRICT 16 P.O. Box 4060 Modesto, California 95352 17 BY: BILL KETSCHER 18 SAVE THE SAN FRANCISCO BAY ASSOCIATION: 19 SAVE THE BAY 1736 Franklin Street 20 Oakland, California 94612 BY: CYNTHIA L. KOEHLER, ESQ. 21 BATTLE CREEK WATERSHED LANDOWNERS: 22 BATTLE CREEK WATERSHED CONSERVANCY 23 P.O. Box 606 Manton, California 96059 24 25 CAPITOL REPORTERS (916) 923-5447 9257 1 REPRESENTATIVES 2 BUTTE SINK WATERFOWL ASSOCIATION, et al.: 3 MARTHA H. LENNIHAN, ESQ. 4 455 Capitol Mall, Suite 300 Sacramento, California 95814 5 CITY OF YUBA CITY: 6 WILLIAM P. LEWIS 7 1201 Civic Center Drive Yuba City, California 95993 8 BROWNS VALLEY IRRIGTAION DISTRICT, et al.: 9 BARTKIEWICZ, KRONICK & SHANAHAN 10 1011 22nd Street, Suite 100 Sacramento, California 95816 11 BY: ALAN B. LILLY, ESQ. 12 CONTRA COSTA WATER DISTRICT: 13 BOLD, POLISNER, MADDOW, NELSON & JUDSON 500 Ygnacio Valley Road, Suite 325 14 Walnut Creek, California 94596 BY: ROBERT B. MADDOW, ESQ. 15 GRASSLAND WATER DISTRICT: 16 DON MARCIOCHI 17 22759 South Mercey Springs Road Los Banos, California 93635 18 SAN LUIS CANAL COMPANY: 19 FLANAGAN, MASON, ROBBINS & GNASS 20 3351 North M Street, Suite 100 Merced, California 95344 21 BY: MIICHAEL L. MASON, ESQ. 22 STONY CREEK BUSINESS AND LAND OWNERS COALITION: 23 R.W. MCCOMAS 4150 County Road K 24 Orland, California 95963 25 CAPITOL REPORTERS (916) 923-5447 9258 1 REPRESENTATIVES 2 TRI-DAM POWER AUTHORITY: 3 TUOLUMNE UTILITIES DISTRICT 4 P.O. Box 3728 Sonora, California 95730 5 BY: TIM MCCULLOUGH 6 DELANO-EARLIMART IRRIGATION DISTRICT, et al.: 7 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 8 Oroville, California 95965 BY: JEFFREY A. MEITH, ESQ. 9 HUMANE FARMING ASSOCIATION: 10 BRADLEY S. MILLER. 11 1550 California Street, Suite 6 San Francisco, California 94109 12 CORDUA IRRIGATION DISTRICT, et al.: 13 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 14 P.O. Box 1679 Oroville, California 95965 15 BY: PAUL R. MINASIAN, ESQ. 16 EL DORADO COUNTY WATER AGENCY: 17 DE CUIR & SOMACH 400 Capitol Mall, Suite 1900 18 Sacramento, California 95814 BY: DONALD B. MOONEY, ESQ. 19 GLENN COUNTY FARM BUREAU: 20 STEVE MORA 21 501 Walker Street Orland, California 95963 22 MODESTO IRRIGATION DISTRICT: 23 JOEL MOSKOWITZ 24 P.O. Box 4060 Modesto, California 95352 25 CAPITOL REPORTERS (916) 923-5447 9259 1 REPRESENTATIVES 2 PACIFIC GAS & ELECTRIC: 3 RICHARD H. MOSS, ESQ. 4 P.O. Box 7442 San Francisco, California 94120 5 CENTRAL DELTA WATER AGENCY, et al.: 6 NOMELLINI, GRILLI & MCDANIEL 7 P.O. Box 1461 Stockton, California 95201 8 BY: DANTE JOHN NOMELLINI, ESQ. and 9 DANTE JOHN NOMELLINI, JR., ESQ. 10 TULARE LAKE BASIN WATER STORAGE UNIT: 11 MICHAEL NORDSTROM 1100 Whitney Avenue 12 Corcoran, California 93212 13 AKIN RANCH, et al.: 14 DOWNEY, BRAND, SEYMOUR & ROHWER 555 Capitol Mall, 10th Floor 15 Sacramento, California 95814 BY: KEVIN M. O'BRIEN, ESQ. 16 OAKDALE IRRIGATION DISTRICT: 17 O'LAUGHLIN & PARIS 18 870 Manzanita Court, Suite B Chico, California 95926 19 BY: TIM O'LAUGHLIN, ESQ. 20 SIERRA CLUB: 21 JENNA OLSEN 85 Second Street, 2nd Floor 22 San Francisco, California 94105 23 YOLO COUNTY BOARD OF SUPERVISORS: 24 LYNNEL POLLOCK 625 Court Street 25 Woodland, California 95695 CAPITOL REPORTERS (916) 923-5447 9260 1 REPRESENTATIVES 2 PATRICK PORGENS & ASSOCIATES: 3 PATRICK PORGENS 4 P.O. Box 60940 Sacramento, California 95860 5 BROADVIEW WATER DISTRICT, et al.: 6 DIANE RATHMANN 7 P.O. Box 156 Dos Palos, California 93620 8 FRIENDS OF THE RIVER: 9 BETSY REIFSNIDER 10 128 J Street, 2nd Floor Sacramento, California 95814 11 MERCED IRRIGATION DISTRICT: 12 FLANAGAN, MASON, ROBBINS & GNASS 13 P.O. Box 2067 Merced, California 95344 14 BY: KENNETH M. ROBBINS, ESQ. 15 CENTRAL SAN JOAQUIN WATER CONSERVATION DISTRICT: 16 REID W. ROBERTS, ESQ. 311 East Main Street, Suite 202 17 Stockton, California 95202 18 METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA: 19 JAMES F. ROBERTS P.O. Box 54153 20 Los Angeles, California 90054 21 SACRAMENTO AREA WATER FORUM: 22 CITY OF SACRAMENTO 980 9th Street, 10th Floor 23 Sacramento, California 95814 BY: JOSEPH ROBINSON, ESQ. 24 25 CAPITOL REPORTERS (916) 923-5447 9261 1 REPRESENTATIVES 2 TUOLUMNE RIVER PRESERVATION TRUST: 3 NATURAL HERITAGE INSTITUTE 4 114 Sansome Street, Suite 1200 San Francisco, California 94194 5 BY: RICHARD ROOS-COLLINS, ESQ. 6 CALIFORNIA DEPARTMENT OF WATER RESOURCES: 7 DAVID A. SANDINO, ESQ. P.O. Box 942836 8 Sacramento, California 94236 9 FRIANT WATER USERS AUTHORITY: 10 GARY W. SAWYERS, ESQ. 575 East Alluvial, Suite 101 11 Fresno, California 93720 12 KERN COUNTY WATER AGENCY: 13 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 400 Captiol Mall, 27th Floor 14 Sacramento, California 95814 BY: CLIFFORD W. SCHULZ, ESQ. 15 SAN JOAQUIN RIVER EXCHANGE CONTRACTORS: 16 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 17 P.O. Box 1679 Oroville, California 95965 18 BY: MICHAEL V. SEXTON, ESQ. 19 SAN JOAQUIN COUNTY: 20 NEUMILLER & BEARDSLEE P.O. Box 20 21 Stockton, California 95203 BY: THOMAS J. SHEPHARD, SR., ESQ. 22 CITY OF STOCKTON: 23 DE CUIR & SOMACH 24 400 Capitol Mall, Suite 1900 Sacramento, California 95814 25 BY: PAUL S. SIMMONS, ESQ. CAPITOL REPORTERS (916) 923-5447 9262 1 REPRESENTATIVES 2 ORLAND UNIT WATER USERS' ASSOCIATION: 3 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 4 P.O. Box 1679 Oroville, California 95965 5 BY: M. ANTHONY SOARES, ESQ. 6 GLENN-COLUSA IRRIGATION DISTRICT: 7 DE CUIR & SOMACH 400 Capitol Mall, Suite 1900 8 Sacramento, California 95814 BY: STUART L. SOMACH, ESQ. 9 NORTH SAN JOAQUIN WATER CONSERVATION DISTRICT: 10 JAMES F. SORENSEN CONSULTING CIVIL ENGINEER, INC.: 11 209 South Locust Street Visalia, California 93279 12 BY: JAMES F. SORENSEN 13 PARADISE IRRIGATION DISTRICT: 14 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 15 Oroville, California 95965 BY: WILLIAM H. SPRUANCE, ESQ. 16 COUNTY OF COLUSA: 17 DONALD F. STANTON, ESQ. 18 1213 Market Street Colusa, California 95932 19 COUNTY OF TRINITY: 20 COUNTY OF TRINITY - NATURAL RESOURCES 21 P.O. Box 156 Hayfork, California 96041 22 BY: TOM STOKELY 23 CITY OF REDDING: 24 JEFFERY J. SWANSON, ESQ. 2515 Park Marina Drive, Suite 102 25 Redding, California 96001 CAPITOL REPORTERS (916) 923-5447 9263 1 REPRESENTATIVES 2 TULARE IRRIGATION DISTRICT: 3 TEHEMA COUNTY RESOURCE CONSERVATION DISTRICT 4 2 Sutter Street, Suite D Red Bluff, California 96080 5 BY: ERNEST E. WHITE 6 STATE WATER CONTRACTORS: 7 BEST BEST & KREIGER P.O. Box 1028 8 Riverside, California 92502 BY: CHARLES H. WILLARD 9 COUTNY OF TEHEMA, et al.: 10 COUNTY OF TEHEMA BOARD OF SUPERVISORS 11 P.O. Box 250 Red Bluff, California 96080 12 BY: CHARLES H. WILLARD 13 MOUNTAIN COUNTIES WATER RESOURCES ASSOCIATION: 14 CHRISTOPHER D. WILLIAMS P.O. Box 667 15 San Andreas, California 95249 16 JACKSON VALLEY IRRIGATION DISTRICT: 17 HENRY WILLY 6755 Lake Amador Drive 18 Ione, California 95640 19 SOLANO COUNTY WATER AGENCY, et al.: 20 HERUM, CRABTREE, DYER, ZOLEZZI & TERPSTRA 2291 West March Lane, S.B. 100 21 Stockton, California 95207 BY: JEANNE M. ZOLEZZI, ESQ. 22 23 ---oOo--- 24 25 CAPITOL REPORTERS (916) 923-5447 9264 1 I N D E X 2 ---oOo--- 3 4 PAGE 5 OPENING OF HEARING 9266 6 AFTERNOON SESSION 9365 7 END OF PROCEEDINGS 9467 8 CROSS-EXAMINATION OF CENTRAL DELTA WATER AGENCY: 9 THOMAS BIRMINGHAM 9269 10 TIM O'LAUGHLIN 9308 11 REDIRECT EXAMINATION OF CENTRAL DELTA WATER AGENCY: 12 DANTE JOHN NOMELLINI 9333 13 RECROSS-EXAMINATION OF CENTRAL DELTA WATER AGENCY: 14 THOMAS BIRMINGHAM 9336 15 OPENING STATEMENT BY SAVE THE SAN FRANCISCO BAY: 16 CYNTHIA KOEHLER 9348 17 DIRECT TESTIMONY OF SAVE THE SAN FRANCISCO BAY ASSOCIATION: 18 PANEL: 9375 19 ELIZABETH ANDREWS WILLIAM KEIR 20 SPRECK ROSEKRANS 21 CROSS-EXAMINATION OF SAVE THE SAN FRANCISCO BAY ASSOCIATION: 22 MICHAEL JACKSON 9427 23 24 ---oOo--- 25 CAPITOL REPORTERS (916) 923-5447 9265 1 TUESDAY, JANUARY 26, 1999, 9:00 A.M. 2 SACRAMENTO, CALIFORNIA 3 ---oOo--- 4 C.O. STUBCHAER: Good morning. Welcome back to the 5 continuation of the Bay-Delta Water Rights Hearing Phase 6 II-A. Before we resume the cross-examination of Mr. 7 Zuckerman, Mr. Birmingham, we'd like to have a discussion 8 of the timing and the order of proceeding. 9 THE AUDIENCE: Is your mic on? 10 C.O. STUBCHAER: It is on, but we had this problem 11 once before. We want to discuss the order of proceeding so 12 that we can see how the time is going for the various 13 witnesses. 14 And Ms. Koehler and Mr. Thomas, did you wish to 15 address the Board on the timing and the proceeding issues? 16 MS. KOEHLER: Thank you, Mr. Chairman. I'm Cynthia 17 Koehler with Save San Francisco Bay Association. As I 18 indicated to you last Wednesday, our three witnesses have 19 limited availability. I have produced them all today, 20 Betty Andrews, Bill Keir and Spreck Rosekrans. We are 21 hoping to put them all on today. 22 Their testimony is quite brief. I have a very 23 short opening statement. We don't anticipate we're going 24 to need more than half an hour for our entire opening case. 25 And because all my witnesses are not available the next CAPITOL REPORTERS (916) 923-5447 9266 1 couple of days, we were hoping to get them on and off today 2 if at all possible. 3 C.O. STUBCHAER: Just as a preliminary indication, 4 could we have a show of hands of those parties who think 5 they are going to want to cross-examine? 6 MR. O'LAUGHLIN: Save the Bay? 7 C.O. STUBCHAER: Yes. One, two, three. Okay. 8 And, Mr. Thomas. 9 MR. THOMAS: Good morning, Mr. Chairman. I'm Greg 10 Thomas appearing for the Natural Heritage Institute and the 11 Bay Institute of San Francisco. We were prepared, 12 actually, to present our case in chief today. But, 13 unfortunately, our sole technical witness, David Fullerton, 14 is incapacitated with a herniated disk. And he will not 15 be, physically, able to be here until, at the earliest, 16 probably the 9th of February. 17 So I am thinking that, perhaps, the best 18 arrangement would be for us to present our case as the last 19 party case in chief, assuming that's likely to come up 20 about the 9th of February. 21 C.O. STUBCHAER: All right. I'm sorry to hear of his 22 incapacity. That's no fun. Please give him our best. And 23 we'll hear from other parties and see how we can arrange 24 the schedule. 25 MR. THOMAS: Good. CAPITOL REPORTERS (916) 923-5447 9267 1 C.O. STUBCHAER: And, Mr. Birmingham, could you give 2 us an estimate of how much longer you believe that your 3 cross-examination of Mr. Zuckerman will take? 4 MR. BIRMINGHAM: Depends on the answers that 5 Mr. Zuckerman provides. So it could range anywhere from 20 6 minutes to an hour. 7 C.O. STUBCHAER: 20 minutes to an hour. All right. 8 That's not a commitment, we're just looking for an 9 estimate. 10 I think that works, Ms. Koehler, for getting your 11 witnesses on today. 12 Mr. O'Laughlin. 13 MR. O'LAUGHLIN: Well, just so we're clear, I still 14 have cross-examination of Central Delta Water Agency as 15 well. I don't know how long our cross-examination will 16 last. I seriously doubt if Save the Bay will get on and 17 get off today given the scope of the cross-examination I've 18 prepared for Save the Bay. My time estimate for Save the 19 Bay cross-examination runs anywhere from two to five hours. 20 C.O. STUBCHAER: Okay. Thank you, Mr. O'Laughlin. I 21 neglected to look at my schedule here for you. 22 Well, Mr. Birmingham, please, proceed with your 23 cross-examination. 24 MR. BIRMINGHAM: Thank you. 25 // CAPITOL REPORTERS (916) 923-5447 9268 1 ---oOo--- 2 CROSS-EXAMINATION OF THE CENTRAL DELTA WATER AGENCY 3 BY SAN LUIS AND DELTA-MENDOTA WATER AUTHORITY 4 BY THOMAS BIRMINGHAM 5 MR. BIRMINGHAM: Good morning, Mr. Zuckerman. 6 MR. ZUCKERMAN: Good morning. 7 MR. BIRMINGHAM: When we concluded last week we were 8 talking about a statement contained on Page 1 of Central 9 Delta Water Agency Exhibit 22. Do you have a copy of 10 Central Delta Water Agency's Exhibit 22 with you? 11 MR. ZUCKERMAN: Yes. 12 MR. BIRMINGHAM: In particular we were talking about 13 the statement on Page 1 and I'll quote, 14 (Reading): 15 "The burden for providing water to meet the 16 fishery flow and water quality requirements at 17 Vernalis is rightfully that of the exporters 18 from the Delta." 19 Do you recall those questions? 20 MR. ZUCKERMAN: I'm not sure what the question was. 21 I recall that testimony. 22 MR. BIRMINGHAM: You testified that your reference to 23 exporters was a reference to both the State Water Project 24 and the Central Valley Project? 25 MR. ZUCKERMAN: Yes. CAPITOL REPORTERS (916) 923-5447 9269 1 MR. BIRMINGHAM: And we, then, had a series of 2 questions and answers concerning the flow requirements 3 contained in the 1995 Water Quality Control Plan for the 4 Bay-Delta and San Joaquin River in particular. 5 Do you recall those questions and answers? 6 MR. ZUCKERMAN: Yes. 7 MR. BIRMINGHAM: And in response to my questions you 8 stated that it is Central Delta Water Agency's view that 9 with respect to the flow requirements for the San Joaquin 10 contained in the 1995 Water Quality Control Plan the State 11 Water Project is responsible for meeting those standards. 12 Do you recall that? 13 MR. ZUCKERMAN: I don't recall testifying exactly 14 that way, no. 15 MR. BIRMINGHAM: Well, is it Central Delta Water 16 Agency's view that the State Water Project is responsible 17 for meeting the flow requirements contained in the 1995 18 Water Quality Control Plan for the San Joaquin River? 19 MR. ZUCKERMAN: I think the nature of my testimony 20 was that because of the interrelationship of the two 21 projects, there's certain facilities in the State Project 22 that have an impact upon flow in the San Joaquin River 23 and that it's very difficult to extract the obligations of 24 one project from the other because of the close 25 interrelationship of their operations. CAPITOL REPORTERS (916) 923-5447 9270 1 MR. BIRMINGHAM: In fact, it was your testimony that 2 it's hard to distinguish the effects of the CVP from the 3 SWP on flows in the San Joaquin River; is that correct? 4 MR. ZUCKERMAN: That was a better summary of my 5 testimony than the one you tried to make a couple minutes 6 ago. 7 MR. BIRMINGHAM: Mr. Zuckerman, I'm handing to you a 8 diagram that's been marked for identification as Westlands' 9 Exhibit 106. 10 MR. ZUCKERMAN: All right. 11 MR. BIRMINGHAM: Now, in response to questions asked 12 of you last week you said that you've studied the history 13 of the Central Valley Project. You're nodding your head up 14 and down, is that an affirmative answer? 15 MR. ZUCKERMAN: I didn't realize it was a question. 16 That was my testimony, yes. 17 MR. BIRMINGHAM: And as part of your study of the 18 history of the Central Valley Project have you studied the 19 development of the State Water Project? 20 MR. ZUCKERMAN: To some degree, yes. I've actually 21 been involved in the history of it over the span of my 22 career. 23 MR. BIRMINGHAM: And as a result of your involvement 24 in the history of the State Water Project, you're familiar 25 with the facilities of the State Water Project? CAPITOL REPORTERS (916) 923-5447 9271 1 MR. ZUCKERMAN: Reasonably, I am, yes. 2 MR. BIRMINGHAM: And as part of your work related to 3 Bay-Delta matters you are familiar, generally, with 4 facilities that are operated by public agencies other than 5 the federal government and the State of California? 6 MR. ZUCKERMAN: Not to the same degree, no. For 7 instance, I read about places like Castaic Reservoir. And 8 to the extent I'm familiar with them is about what you see 9 when you drive by on Interstate 5. 10 MR. BIRMINGHAM: Well, turning your attention to 11 Westlands' Exhibit 106, on Westlands' Exhibit 106 there are 12 facilities that are identified in red; is that correct? 13 MR. ZUCKERMAN: Well, there's numbers that are 14 identified in red, yes. 15 MR. BIRMINGHAM: Well, now, let's look at the 16 upper -- 17 MR. ZUCKERMAN: I think I see what you mean. 18 MR. BIRMINGHAM: Well, let's examine the upper 19 right-hand corner of Exhibit 106 which is identified as 20 "Sacramento-San Joaquin Stream and Reservoir Systems" dated 21 November 1992. 22 And if we look at the diagram for the Feather 23 River there are a number of facilities that are identified 24 on the Feather River; is that correct? 25 MR. ZUCKERMAN: Yes. CAPITOL REPORTERS (916) 923-5447 9272 1 MR. BIRMINGHAM: And some of those facilities are 2 identified -- are colored red; is that correct? 3 MR. ZUCKERMAN: Well, I don't want to quibble with 4 you. There are some numbered boxes that are adjacent to 5 the descriptions of facilities. The numbers are in red, 6 the description of the facilities is not. 7 MR. BIRMINGHAM: For instance, Lake Oroville is 8 identified on the Feather River on Westlands' Water 9 District Exhibit 106; is that correct? 10 MR. ZUCKERMAN: Yes, I see it. 11 MR. BIRMINGHAM: And there is a box signifying the 12 location of Lake Oroville in Westlands' Water District 13 Exhibit 106? 14 MR. ZUCKERMAN: Well, as I say that box contains the 15 Figure 3.5, which I presume means 3.5 million acre-feet of 16 storage. And that's what it says. 17 MR. BIRMINGHAM: And you're aware, aren't you, that 18 the capacity of Lake Oroville is approximately 3.5 million 19 acre-feet of storage? 20 MR. ZUCKERMAN: Yes. 21 MR. BIRMINGHAM: Now, moving down the Feather River 22 to the Delta, there are some facilities that are colored 23 red or boxes or circles, using your term, colored red on 24 the left-hand side of Westlands' Water District 106 in the 25 middle; is that correct? CAPITOL REPORTERS (916) 923-5447 9273 1 MR. ZUCKERMAN: Okay. I didn't -- I don't think 2 that's anywhere near Westlands Water District, but I see 3 what you mean. 4 MR. BIRMINGHAM: I'm identifying this as Westlands' 5 Water District 106, Mr. Zuckerman. On Westlands' Water 6 District 106 in the middle of the document vertically -- 7 MR. ZUCKERMAN: Perhaps, I misunderstood your 8 question. I thought you were saying they were in the 9 vicinity of Westlands Irrigation District, or Water 10 District. I see what you're talking about, Clifton Court 11 Forebay, Bethany Forebay and Harvey Banks. 12 MR. BIRMINGHAM: Now, are you familiar with those 13 facilities? 14 MR. ZUCKERMAN: Yes. 15 MR. BIRMINGHAM: And are those facilities operated by 16 the State Water Project? 17 MR. ZUCKERMAN: Yes. 18 MR. BIRMINGHAM: And they're colored red on 19 Westlands' Water District 106? 20 MR. ZUCKERMAN: The boxes and circles are, yes. 21 MR. BIRMINGHAM: If you look at the legend on 22 Westlands' Water District 106 it indicates that the boxes 23 and circles colored red are State of California facilities; 24 is that correct, Mr. Zuckerman? 25 MR. ZUCKERMAN: Yes. CAPITOL REPORTERS (916) 923-5447 9274 1 MR. BIRMINGHAM: Now, you know that Clifton Court 2 Forebay, Harvey Banks Pumping Plant and Bethany Forebay are 3 operated by the State of California? 4 MR. ZUCKERMAN: Yes. 5 MR. BIRMINGHAM: Now, moving down the California 6 Aqueduct, as depicted on Westlands' Water District Exhibit 7 106, there is a box that is labeled "San Luis Reservoir." 8 MR. ZUCKERMAN: Yes. 9 MR. BIRMINGHAM: And that box is colored blue and 10 red? 11 MR. ZUCKERMAN: Yes. 12 MR. BIRMINGHAM: And San Luis Reservoir is a facility 13 which is operated jointly by the United States and the 14 State of California? 15 MR. ZUCKERMAN: It's a joint facility of the two 16 projects. 17 MR. BIRMINGHAM: And adjacent to San Luis Reservoir 18 on Westlands' Water District Exhibit 106 there is a 19 facility identified as O'Neill Forebay? 20 MR. ZUCKERMAN: Yes. 21 MR. BIRMINGHAM: And O'Neill Forebay as depicted on 22 Westlands' Water District Exhibit 106 is also colored blue 23 and red? 24 MR. ZUCKERMAN: Yes. 25 MR. BIRMINGHAM: And O'Neill Forebay is also a joint CAPITOL REPORTERS (916) 923-5447 9275 1 facility of the Central Valley Project and the State Water 2 Project? 3 MR. ZUCKERMAN: Correct. 4 MR. BIRMINGHAM: Now, looking at the San Joaquin 5 River as depicted on Westlands' Water District 106, are 6 there any facilities that are operated by the State Water 7 Project that would impair the flow of the San Joaquin River 8 above Vernalis? 9 MR. ZUCKERMAN: I'm not sure I can respond to the 10 word "impaired," but -- 11 MR. BIRMINGHAM: You don't understand the word 12 "impaired"? 13 MR. ZUCKERMAN: The gist of my testimony the other 14 day was that the operations of the State and the Federal 15 Project are so interrelated that they affect, or 16 potentially affect the flow in the portion of the San 17 Joaquin River below Mendota. And they definitely affect a 18 portion of the San Joaquin River, the Lower San Joaquin 19 River that occurs in the Delta itself. 20 So the word "impair" is one half of that sequence. 21 The other might be add to or improve, but they have the 22 potential for both impacts on the San Joaquin River. 23 MR. BIRMINGHAM: Mr. Zuckerman, on Pages 3 and 4 of 24 Central Delta Water Agency Exhibit 22, it states, 25 // CAPITOL REPORTERS (916) 923-5447 9276 1 (Reading): 2 The coordinated operations of the CVP and SWP 3 have led to the SWP pumping and wheeling of CVP 4 water, thereby, further aggravating the 5 problems." 6 Is that correct? 7 MR. ZUCKERMAN: I see it's going over to the next 8 page, yes. 9 MR. BIRMINGHAM: Now, the coordinated operations of 10 the CVP and SWP is carried out under the Coordinated 11 Operating Agreement; is that correct? 12 MR. ZUCKERMAN: Yes, in addition to some other 13 things. 14 MR. BIRMINGHAM: What are the other things? 15 MR. ZUCKERMAN: Well, when this Board made its 16 decision in '95 there was a further coordination of the 17 operation through projects, through a -- I don't know if 18 you call it formal or informal, delegation of some 19 responsibilities to Mr. Pettit. And the Coordinated 20 Operating Agreement -- I mean the operations -- CalFed Ops, 21 whatever the formal name of that committee is -- 22 MR. BIRMINGHAM: You're referring to Water Rights 23 Decision 95-6? 24 MR. ZUCKERMAN: Actually, not. To the formal water 25 rights decision that preceded this hearing. The one that CAPITOL REPORTERS (916) 923-5447 9277 1 was in, I believe, December of '94 or '95. 2 MR. NOMELLINI: I agree with Tom, 95-6. 3 MR. ZUCKERMAN: All right. I thought that was the 4 water rights decision. What's the Water Quality Control 5 Plan? 6 MR. NOMELLINI: 95-1 was the Water Quality Control 7 Plan. 8 MR. ZUCKERMAN: Okay. I was referring to the Water 9 Quality Control Plan. 10 MR. BIRMINGHAM: It's your understanding of the Water 11 Quality Control Plan that it provides for the coordinated 12 operation of the CVP and SWP? 13 MR. ZUCKERMAN: There's a number of conditions 14 attached to it that refers some authority either to the 15 Executive Officer, directly or through an operating 16 committee that was to be set up under the CalFed hospices 17 to manage -- to meet certain conditions of that plan. I 18 believe it's also true of 95-6, but I recall there were 19 specific provisions in the Water Quality Control Plan 20 roughly to that effect. 21 C.O. STUBCHAER: Excuse me. Can the people in the 22 back of the room hear all the answering? 23 C.O. BROWN: Pull the mic over a little closer, 24 Mr. Zuckerman. 25 C.O. STUBCHAER: Can you hear me? There's no CAPITOL REPORTERS (916) 923-5447 9278 1 response back there. 2 MR. BIRMINGHAM: Now, Mr. Zuckerman, when you're 3 referring to the problems, you're referring to problems on 4 the San Joaquin River; is that correct? And here I'm 5 referring to Page 4 where you had stated, 6 (Reading): 7 "Thereby further aggravating the problems." 8 MR. ZUCKERMAN: Yes. 9 MR. BIRMINGHAM: And the problems that you're 10 referring to are problems of flow and water quality in the 11 San Joaquin River? 12 MR. ZUCKERMAN: Yes. 13 MR. BIRMINGHAM: Are there any other problems that 14 you're referring to? 15 MR. ZUCKERMAN: Not that wouldn't be assumed within 16 that general description. 17 MR. BIRMINGHAM: Now, prior to the adoption of the 18 1995 Water Quality Control Plan, Order 95-6, can you tell 19 us how much water was wheeled by the State of California 20 for the CVP? 21 MR. ZUCKERMAN: Not with any degree of specificity. 22 I'm somewhat familiar with some of the agreements between 23 the two agencies that have some quantifications in them. 24 But I don't know -- I haven't reviewed the record to see 25 how much of that authority was actually exercised. CAPITOL REPORTERS (916) 923-5447 9279 1 MR. BIRMINGHAM: The water that was wheeled by the 2 State Water Project on behalf of the CVP prior to the 3 adoption of the 1995 Water Quality Control Plan, or Order 4 95-6, can you tell us where that water was used? 5 MR. ZUCKERMAN: Well, it's hard to tell because of 6 the way the projects are interrelated. But, for instance, 7 I'm sure you're familiar with the Coordinated Operating 8 Agreement between the two projects. And I have a copy of 9 it with me and I reviewed it recently. 10 And there is -- I just make a quick reference to 11 it, paragraph 10(b), -- excuse me, I think that's it, 12 anyway, there's a paragraph in the agreement that talks 13 about -- yeah, it's 10(b), 14 (Reading): 15 "To the extent that operational constraints are 16 imposed on the CVP," and so forth, "the State 17 will transport up to 195,000 acre-feet of CVP 18 water through the California Aqueduct no later 19 than April 30th of the following year by direct 20 diversion, or rediversion of stored Central 21 Valley Project water at times that the 22 diversions do not reduce State Water Project 23 yield." 24 So there is an instance where because of some 25 problems that the CVP is having, the State is authorized to CAPITOL REPORTERS (916) 923-5447 9280 1 put 195,000 acre-feet of water for the CVP into the San 2 Luis Reservoir or otherwise deliver it to the CVP. 3 MR. BIRMINGHAM: Isn't it -- 4 MR. ZUCKERMAN: What happens from that point is it 5 gets mixed up, presumably, in the forebay, at least, and 6 probably in the reservoir. And it becomes kind of an 7 accounting methodology I assume from that point forward to 8 try to keep track of where it went and what it was being 9 used for. So I don't -- I can't track that specifically 10 for you. 11 MR. BIRMINGHAM: Isn't it correct, Mr. Zuckerman, 12 that the wheeling that occurs under the Coordinated 13 Operating Agreement is wheeling of Central Valley Project 14 water to the Cross Valley Canal Contractors? 15 MR. ZUCKERMAN: Not to my knowledge. It may be part 16 of it. I don't know. 17 MR. BIRMINGHAM: So you don't know where the water 18 wheeled by the State of California on behalf of the CVP is 19 used? 20 MR. ZUCKERMAN: Well, the paragraph that I just 21 talked about doesn't make any reference to the Cross Valley 22 Project. So -- 23 MR. BIRMINGHAM: Mr. Zuckerman, going back to my 24 question, you don't know where water wheeled by the State 25 of California on behalf of the Central Valley Project has CAPITOL REPORTERS (916) 923-5447 9281 1 been used? 2 MR. ZUCKERMAN: Not specifically. 3 MR. BIRMINGHAM: So you don't know the extent to 4 which the joint operations of the CVP and SWP have, using 5 your words, aggravated the problems? 6 MR. ZUCKERMAN: I don't have specific knowledge of 7 it. What I'm trying to point out is that because certain 8 features of the State Water Project are used almost 9 interchangeably with those of the CVP and under agreements 10 and directions that are -- I made some reference to here, 11 it's impossible for me to conclude that the State Water 12 Project does not have an impact upon the flows and water 13 quality in the San Joaquin River from the Mendota pool 14 north. 15 MR. BIRMINGHAM: I'm going to ask you a hypothetical 16 question, Mr. Zuckerman. Let's assume that the State Water 17 Project quits operation tomorrow. 18 MR. ZUCKERMAN: Well, can we stipulate? 19 MR. BIRMINGHAM: Let's assume that the State Water 20 Project stops its operation tomorrow. 21 MR. ZUCKERMAN: Yes. 22 MR. BIRMINGHAM: Would flows in the San Joaquin River 23 above Vernalis increase? 24 MR. ZUCKERMAN: Well, they might. I mean, I don't 25 know who would be operating San Luis Reservoir at that CAPITOL REPORTERS (916) 923-5447 9282 1 point, but it's entirely possible that releases would be 2 made from the San Luis Reservoir, which would include some 3 of the water that was stored there for the State that would 4 find its way into the San Joaquin River. 5 You give me a hypothetical question, I guess I 6 have to give you a hypothetical answer. 7 MR. BIRMINGHAM: Well, if in order to answer my 8 question you need to know who is operating San Luis 9 Reservoir and how its being operated, I think that those 10 are good criticisms of my question. 11 So let's assume for purposes of my hypothetical 12 that the San Luis Reservoir continues to be operated by the 13 Federal Government -- 14 MR. ZUCKERMAN: All right. 15 MR. BIRMINGHAM: -- by the Bureau of Reclamation. 16 And let's assume for purposes of our hypothetical, that San 17 Luis Reservoir continues to be operated as it historically 18 has been operated and that is to provide water to federal 19 contractors along the San Luis Canal; and to a smaller 20 degree, contractors on the lower half of the Delta-Mendota 21 Canal. 22 MR. ZUCKERMAN: I can't accept that entirely. 23 MR. BIRMINGHAM: I'm -- 24 MR. ZUCKERMAN: I think that the two projects help 25 each other out. And I think there is a high degree of CAPITOL REPORTERS (916) 923-5447 9283 1 cooperation and coordinated operation between them. And I 2 can't say that historically that the CVP facilities have 3 only been operated to serve water to the Westlands people. 4 They have an intertie with the Delta-Mendota 5 Canal. They have obligations to make deliveries at 6 Mendota, and I can't say that they don't -- that those 7 functions are always that clearly delineated. 8 MR. BIRMINGHAM: When you say, "They have obligations 9 to make deliveries at Mendota," who has obligations to make 10 deliveries at Mendota? 11 MR. ZUCKERMAN: The Bureau of Reclamation. 12 MR. BIRMINGHAM: And the Bureau of Reclamation's 13 obligation is to make deliveries at Mendota are to 14 deliveries on behalf of the San Joaquin River Exchange 15 Contractors; is that correct? 16 MR. ZUCKERMAN: Among other things. 17 MR. BIRMINGHAM: What are the other things? 18 MR. ZUCKERMAN: Well, I believe there are some public 19 trust responsibilities in the San Joaquin River that end up 20 with the Mendota Pool being operated to achieve some 21 certain flows in the San Joaquin River. 22 MR. BIRMINGHAM: Mr. Zuckerman, where have those 23 public trust responsibilities been determined? 24 MR. ZUCKERMAN: I'm not sure they have been fully 25 determined. CAPITOL REPORTERS (916) 923-5447 9284 1 MR. BIRMINGHAM: In fact, they have not been 2 determined, have they? 3 MR. ZUCKERMAN: This Board retains its jurisdiction 4 over those issues, over the CVP permits dating back to the 5 earliest Board Decision of D 9-90, I believe it was. 6 MR. BIRMINGHAM: But isn't it correct, Mr. Zuckerman, 7 that this Board has not imposed any public trust 8 requirements on the Bureau of Reclamation with respect to 9 water delivered by the Bureau to the Mendota Pool via the 10 Delta-Mendota Canal? 11 MR. ZUCKERMAN: Well, I don't think the Board 12 dictates what facilities they expect to be used. They have 13 set water quality standards at Vernalis and I think they 14 leave it up to the Bureau to decide how they provide the 15 flow. Whether they require it to go from the Mendota Pool 16 down or not, I don't think the Board has addressed itself 17 to that. But they have left that pretty much up to the 18 Bureau and coordinated its operations with the other people 19 that are influencing the San Joaquin River. 20 MR. BIRMINGHAM: Now, you said a few moments ago the 21 two projects help each other out? 22 MR. ZUCKERMAN: Yes. 23 MR. BIRMINGHAM: Going back to your testimony and 24 your assertion that operation of the State Water Project 25 wheeling of CVP water has further aggravated the problem, CAPITOL REPORTERS (916) 923-5447 9285 1 you cannot quantify to any degree the extent to which 2 wheeling water by the State Water Project, or the CVP has 3 aggravated the problems in the San Joaquin River, can you? 4 MR. ZUCKERMAN: No, I can't do that. That's beyond 5 my capabilities. 6 MR. BIRMINGHAM: On Page 2 of Central Delta Water 7 Agency Exhibit 22 you make reference to testimony of 8 fishery experts during Phase II of the proceedings; is that 9 correct, Mr. Zuckerman? 10 MR. ZUCKERMAN: Yes, at the top of the page. 11 MR. BIRMINGHAM: And you say that, "Although we have 12 not engaged fishery experts," now when you say "we," you're 13 referring to Central Delta Water Agency; is that correct? 14 MR. ZUCKERMAN: That's correct. 15 MR. BIRMINGHAM: So Central Delta Water Agency has 16 not engaged fishery experts to examine the San Joaquin 17 River Agreement or the Vernalis Adaptive Management Plan? 18 MR. ZUCKERMAN: That's correct. 19 MR. BIRMINGHAM: Now, you say at the end of the top 20 paragraph on Page 2 of Central Delta Water Agency Exhibit 21 22, 22 (Reading): 23 "It appears to us that the fishery data to be 24 derived from the VAMP could be obtained with 25 reduced releases of stored water." CAPITOL REPORTERS (916) 923-5447 9286 1 MR. ZUCKERMAN: That's correct. 2 MR. BIRMINGHAM: Now, a few moments ago in response 3 to my question about wheeling water and the extent to which 4 wheeling water has aggravated the problems, you said that 5 you couldn't quantify it because that was "beyond my 6 capabilities." 7 Do you remember saying that? 8 MR. ZUCKERMAN: Yes. 9 MR. BIRMINGHAM: Now, isn't it correct, 10 Mr. Zuckerman, that determining the amount of water that 11 needs to be released in order to conduct the experiment 12 described in the Vernalis Adaptive Management Plan is also 13 beyond your capability? 14 MR. ZUCKERMAN: Well, I have some help. While I'm 15 testifying here, though, I have the benefit of the record 16 in front of me, which I have reviewed. And I've reviewed 17 the testimony that was offered by -- I think it was offered 18 by Mr. O'Laughlin. 19 There was a panel of experts. I looked at their 20 direct testimony. I looked at their cross-examination and 21 I think that conclusion is a fair reading of that phase of 22 the proceeding. 23 MR. BIRMINGHAM: On Page 3 of Central Delta Water 24 Agency Exhibit 22, at the end of Paragraph 5 you make a 25 statement. CAPITOL REPORTERS (916) 923-5447 9287 1 (Reading): 2 "The magnitude of the pulse and export pumping 3 adjustment as well as the length of time would 4 be determined by the fishery experts." 5 Is that correct? 6 MR. ZUCKERMAN: Yes. 7 MR. BIRMINGHAM: Now, isn't it correct, 8 Mr. Zuckerman, that in developing the experiment described 9 by VAMP the magnitude of the pulse flow and the export 10 pumping adjustment was determined by fishery experts? 11 MR. ZUCKERMAN: You know, I have reviewed that 12 testimony and I don't know. I can't honestly say that 13 that's the way that that was determined. I would hope it 14 was. 15 MR. BIRMINGHAM: But with respect to developing a 16 monitoring plan to protect the Delta smelt, you would 17 suggest that the Board rely on determinations made by 18 fishery experts and not your determination? 19 MR. ZUCKERMAN: Yes. 20 MR. BIRMINGHAM: So if the Vernalis Adaptive 21 Management Plan and the magnitude of the pulse flow and the 22 export pumping adjustments called for by the Vernalis 23 Adaptive Management Plan were developed by fishery experts, 24 you would suggest that the Board should rely on their 25 opinions to a greater degree than it would rely on any CAPITOL REPORTERS (916) 923-5447 9288 1 opinion that you would express; isn't that right, 2 Mr. Zuckerman? 3 MR. ZUCKERMAN: Well, that's correct. What I was 4 testifying to is what -- I read carefully the testimony of 5 those people. And I'm saying, I think it's a fair 6 interpretation of the record that there is enough latitude 7 within the normal fluctuation of the flows that could be 8 expected to occur in that 12-year period, that they could 9 get a number of useful data points, particularly within the 10 range that they testified is where their data is lacking, 11 which is in the midrange of the historical flows in order 12 to be able to reach some valid statistical relationships 13 during that period. 14 I would, certainly, start out that way. And if 15 nature wasn't cooperating and we weren't getting enough 16 years with the proper amount of flows, then I would 17 consider going to some management of those flows. But I 18 wouldn't start off with the idea that you have to release 19 all this water out of the upstream reservoirs in the early 20 part of the experiment in order to create conditions, 21 because there are competing uses and needs for that water 22 that need to be respected. 23 MR. BIRMINGHAM: Now, Mr. Zuckerman, your 24 understanding of the purpose of the Vernalis Adaptive 25 Management Plan is stated in Paragraph 3 on Page 2 of CAPITOL REPORTERS (916) 923-5447 9289 1 Central Delta Water Agency Exhibit Number 22; isn't that 2 correct? 3 MR. ZUCKERMAN: Which paragraph? 4 MR. BIRMINGHAM: Paragraph 3 on Page 2. In the 5 middle of that paragraph it states, 6 (Reading): 7 "The apparent objective of VAMP is to develop 8 data over a 12-year period to better understand 9 the correlation of river flow and export pumping 10 to the San Joaquin River salmon smolt survival." 11 MR. ZUCKERMAN: Yes. 12 MR. BIRMINGHAM: That's your understanding of the 13 objective of the Vernalis Adaptive Management Plan? 14 MR. ZUCKERMAN: That's my testimony. 15 MR. BIRMINGHAM: Now, a few moments ago you testified 16 that you don't know how the magnitude of the pulse and the 17 export pumping adjustments were determined; isn't that 18 correct? 19 MR. ZUCKERMAN: I said I wasn't sure that that was 20 done entirely by fishery experts. I can expand on that. 21 I think there were water district managers and CVP people 22 and power contracts and a whole bunch of other things 23 involved in that. There ended up being an exchange of 24 money for water and so forth. 25 So I'm uncomfortable with the notion that the CAPITOL REPORTERS (916) 923-5447 9290 1 whole thing was dictated or decided strictly by fishery 2 experts. 3 MR. BIRMINGHAM: And your point is that there may be 4 other competing demands for the water and, therefore, in 5 developing the experiment some balancing should go on 6 between the need to develop data and other competing uses 7 for water? 8 MR. ZUCKERMAN: I think the experimentation could 9 probably take place effectively without unnecessarily 10 impacting competing users for water, particularly the ones 11 that appear to have senior water rights. 12 MR. BIRMINGHAM: Now, Mr. Zuckerman, you don't know 13 the extent to which a balancing occurred in the development 14 of the Vernalis Adaptive Management Plan, do you? 15 MR. ZUCKERMAN: Well, all I can do, since we weren't 16 involved in the negotiation or discussions of this, weren't 17 invited to be, I can only conclude from what the results of 18 it were and compare them to what other people's rights are. 19 MR. BIRMINGHAM: And so when the discussions were 20 going on between the water agencies, the tributaries to the 21 San Joaquin River and the Central Valley Project, the State 22 Water Project concerning the development of the experiment 23 in consultation with the fishery experts, you would 24 conclude that there was some balancing going on as well as 25 the payment of money? CAPITOL REPORTERS (916) 923-5447 9291 1 MR. ZUCKERMAN: Well, that's what I just said. I 2 don't think it was entirely dictated by the fishery 3 experts. We seem to have reached an agreement on that 4 point. 5 MR. BIRMINGHAM: Well, Mr. Zuckerman, what I'm trying 6 to understand is your apparent criticism of the Vernalis 7 Adaptive Management Plan, because on the one hand you say 8 that experiments need to be designed taking into account 9 balancing the competing needs for water, but you don't know 10 the degree to which that was done in the development of 11 this experiment? 12 MR. ZUCKERMAN: I clearly do not know the extent of 13 it. What I'm saying is that by looking at what the fishery 14 experts testified to in relationship to particularly the 15 VAMP, because they didn't even seem to be presented with 16 the San Joaquin River Agreement, it was -- that was 17 something that was done, as I can understand it, after 18 members of the panel that were presented here had done 19 their studies or whatever, so they really weren't making 20 any meaningful comments on the river agreement itself. 21 They were really addressing the VAMP studies, which were 22 subsequently changed. 23 But looking at their testimony, their 24 cross-examination and so forth, I think it's a fair reading 25 that most of the information that they're looking to, CAPITOL REPORTERS (916) 923-5447 9292 1 obtained experimentally, would be obtained without the 2 extent of releases from upstream storage that are dictated 3 by the San Joaquin River Agreement. 4 MR. BIRMINGHAM: Now, going back as to Page 2, 5 Paragraph 3 you state at the bottom of the page that, 6 (Reading): 7 "It's your view that the naturally occurring 8 variation in hydrology over a 12-year period 9 would provide sufficient data points to conduct 10 the analysis called for by VAMP." 11 MR. ZUCKERMAN: Correct. 12 MR. BIRMINGHAM: You don't know the degree to which 13 the people responsible for the development of VAMP looked 14 at historical hydrology; isn't that correct, 15 Mr. Zuckerman? 16 MR. ZUCKERMAN: Well, they made a point in their 17 cross-examination that most of them didn't look at 18 historical hydrology either. They were pretty much 19 relying, as I recall, on Mr. Herbold's discussions with the 20 hydrologists on that. 21 MR. BIRMINGHAM: Have you reviewed Mr. Steiner's 22 testimony? 23 MR. ZUCKERMAN: I believe I saw his printed 24 testimony. I haven't seen a copy of his cross-examination, 25 no. I was looking more at the cross-examination of the CAPITOL REPORTERS (916) 923-5447 9293 1 fishery people. 2 MR. BIRMINGHAM: Now, do you know Mr. Steiner? 3 MR. ZUCKERMAN: No. 4 MR. BIRMINGHAM: Is it your understanding that 5 Mr. Steiner is a hydrologist? 6 MR. ZUCKERMAN: You know, to be perfectly honest with 7 you, I don't know what his qualifications are. 8 MR. BIRMINGHAM: So -- 9 MR. ZUCKERMAN: And I haven't seen or heard his 10 testimony, or the cross-examination of it. So it's going 11 to be difficult to respond to questions about it. 12 MR. BIRMINGHAM: So you don't know the degree to 13 which Mr. Steiner participated in the development of the 14 Vernalis Adaptive Management Plan, or the degree to which 15 his analysis of historical hydrology was used in making a 16 determination as to whether or not the naturally occurring 17 variation would provide the data necessary to do the 18 analysis called for by VAMP? 19 MR. ZUCKERMAN: No, I don't. And unless he is a 20 fishery biologist, I wouldn't rely very heavily upon his 21 opinion about whether the naturally varying flows would 22 provide sufficient biological opportunities for 23 experimentation. I'm sorry, I really don't know very much 24 about Mr. Steiner. 25 MR. BIRMINGHAM: Now, on Page 3 you state under the CAPITOL REPORTERS (916) 923-5447 9294 1 conclusion, 2 (Reading): 3 "The problem of the San Joaquin River have been 4 primarily caused by the CVP." 5 MR. ZUCKERMAN: Yes. 6 MR. BIRMINGHAM: Now, earlier we established that the 7 problems that you're referring to are problems caused by a 8 reduction in flow and water quality degradation? 9 MR. ZUCKERMAN: Correct. 10 MR. BIRMINGHAM: Let's focus on flow for a moment, 11 Mr. Zuckerman. 12 MR. ZUCKERMAN: All right. 13 MR. BIRMINGHAM: On average, what percentage of the 14 unimpaired runoff in the San Joaquin watershed is impounded 15 and exported by the Central Valley Project? 16 MR. ZUCKERMAN: It varies quite a bit by month. I 17 don't have the chart in front of me now, but I've reviewed 18 it in the past. But in the months of August and September, 19 for instance, the unimpaired flow contributed to the San 20 Joaquin River system by the area above Friant is in the 30 21 to 40 percent area, as I recall and there would be a 22 significant additional contribution in the Stanislaus 23 River. But there's quite a variation depending on which 24 month you're talking about. 25 MR. BIRMINGHAM: Let's talk about the period April CAPITOL REPORTERS (916) 923-5447 9295 1 through September in dry years. 2 MR. ZUCKERMAN: Okay. But as I say, I don't have 3 that information in front of me now and I don't have a 4 photographic memory, so I can't remember what it is. 5 MR. BIRMINGHAM: Mr. Zuckerman, I'm showing to you a 6 document that is in evidence, South Delta Water Agency 7 Exhibit 48. And it's a document entitled "Affects of the 8 CVP Upon the Southern Delta Water Supply Sacramento-San 9 Joaquin River Delta, Sacramento, California," dated June 10 1980. 11 Are you familiar with this report? 12 MR. ZUCKERMAN: That wasn't what I had in mind when I 13 was referring to the month-to-month fluctuations that I'd 14 seen charted before, no. And I can't tell you offhand 15 whether I'm familiar with that document or not. 16 MR. BIRMINGHAM: Okay. On Page 39 of the document, 17 Mr. Zuckerman, -- may I have a moment, please? 18 C.O. STUBCHAER: Yes. 19 MR. BIRMINGHAM: Thank you. 20 Mr. Zuckerman, I'm handing to you a copy of South 21 Delta Water Agency Exhibit 48, which Mr. Herrick was kind 22 enough to loan me. And directing your attention to Page 39 23 of South Delta Water Agency Exhibit 48, near the top of the 24 page there's a section on Page 39 that is labeled, "Summary 25 of Impact, Dry Years," is that correct? CAPITOL REPORTERS (916) 923-5447 9296 1 MR. ZUCKERMAN: Yes. 2 MR. BIRMINGHAM: Now, turning to subpart B of that 3 section, on page 39 it states, 4 (Reading): 5 "During the April-September period the reduction 6 in flow attributable to the CVP ranged from 7 2,600 to 7,000 acre-feet, which is about 0.6 to 8 1.6 percent of the pre-1944 average dry year 9 April-September flow at Vernalis." 10 MR. ZUCKERMAN: Yeah. Let me point out, that isn't 11 what you asked me. You asked me what percentage of flow of 12 the San Joaquin River is controlled by CVP facilities. At 13 least, that's what I understood your question to have been. 14 My response was to that question. 15 The question of what impact the CVP may have had 16 on San Joaquin River flows is a different one, because this 17 presupposes that they've been operating in accordance with 18 the law to provide flows from those facilities, or from 19 other facilities to make up the flows that might otherwise 20 have been there. And it varies, as I say, a good deal from 21 month-to-month. So this doesn't give me much help on the 22 issue of month-to-month, which I raised. 23 MR. BIRMINGHAM: Well, Mr. Zuckerman, I'll represent 24 to you that South Delta Water Agency Exhibit 48 was 25 prepared comparing the -- to determine the impacts of the CAPITOL REPORTERS (916) 923-5447 9297 1 CVP prior to the operation of New Melones. And so the only 2 CVP facilities that are discussed in South Delta Water 3 Agency Exhibit 48 are the Friant Unit facilities. 4 Now, a few moments ago you made a statement that I 5 want to follow up on. You said that the law imposes 6 requirements on the CVP to make releases. 7 MR. ZUCKERMAN: Yes. 8 MR. BIRMINGHAM: Let's talk about Friant Dam. What 9 law has been determined to require the CVP to make releases 10 from Friant Dam? 11 MS. KOEHLER: I have an objection. Perhaps, a 12 clarification from the Board. My understanding of the 13 testimony in this proceeding is of an evidentiary nature. 14 And Mr. Birmingham has now asked a fairly specific question 15 asking for a legal conclusion. 16 So I'd like a -- I'd like some guidance from the 17 Board about the appropriateness of seeking legal opinions 18 in this proceeding, which is supposed to be the examination 19 of factual evidence. 20 C.O. STUBCHAER: Mr. Birmingham, could you relate 21 where in the testimony this question can be found? 22 MR. BIRMINGHAM: Yes, certainly. It relates to a 23 question that he just provided to me. And I know. 24 Ms. Koehler has not been in attendance of these hearings 25 often, but we have had this objection stated many times. CAPITOL REPORTERS (916) 923-5447 9298 1 And every time it has been stated it has been overruled. 2 Now, Mr. Zuckerman is an attorney. He no longer 3 practices, but he is an attorney. And if anyone is in a 4 position to state a legal conclusion it might be 5 Mr. Zuckerman, although, I wouldn't want to admit or 6 acknowledge that I would agree with him on any legal 7 conclusion he states. 8 But, moreover, his testimony, Central Delta Water 9 Agency Exhibit 22, is nothing but legal conclusions. The 10 whole testimony consists of legal conclusions. So if we'd 11 like to strike all of Mr. Zuckerman's testimony, I'd be 12 happy to withdraw this question. 13 MS. KOEHLER: I'm still going to ask for my -- for 14 the ruling for the reason notwithstanding my failure to 15 attend the hearing as faithfully as others have, I do think 16 that its useful to have clarification about the purpose of 17 cross-examination and the kind of evidence that's been 18 explored here. 19 To the extent that Mr. Zuckerman's testimony 20 involves even numerous legal conclusions, obviously, we all 21 have the opportunity to address those in our legal 22 briefing, but it's not going to be that the mode -- that 23 the vehicle of cross-examination is the appropriate place 24 for 25 Mr. Birmingham to address the legal conclusions in CAPITOL REPORTERS (916) 923-5447 9299 1 Mr. Zuckerman's testimony with which he disagrees. 2 C.O. STUBCHAER: Mr. O'Laughlin. 3 MR. O'LAUGHLIN: Well, since we've been doing this 4 basically the Chair has always issued a ruling that if the 5 witness feels comfortable responding to the question and 6 understands it, the witness may respond to the question. 7 Then if Mr. Zuckerman doesn't feel comfortable responding 8 to the question, then he can so state and we can move on. 9 MS. KOEHLER: Once again, the issue isn't what 10 Mr. Zuckerman views or is not comfortable with or even is 11 not qualified to do, that's not my objection. My objection 12 is the purpose of cross-examination and evidentiary 13 evidence in this hearing. 14 C.O. STUBCHAER: Okay. Time out. 15 (Off the record from 9:54 a.m. to 9:56 a.m.) 16 C.O. STUBCHAER: The ruling is that as I understood 17 the question it was: Where in the law does it require that 18 water be released? 19 Would you repeat the question? 20 MR. BIRMINGHAM: My question was under what law has 21 it been determined that the Bureau of Reclamation has been 22 required to release water from Friant? 23 The reason for the distinction, Mr. Stubchaer, is 24 I understand Mr. Zuckerman may claim that there's some law 25 that obligates the Bureau to release the water, I'm not CAPITOL REPORTERS (916) 923-5447 9300 1 asking him what his legal theory is. I'm asking him: 2 Under what law has the Court or this Board determined that 3 the Bureau is obligated to release water? 4 C.O. STUBCHAER: All right. I will allow that 5 question to be answered, because it is of a factual nature: 6 Where is this law stated? Where is this requirement 7 stated? 8 But we do not want it to evolve into an argument 9 or discussion of once the law is identified of what is 10 contained in the law. 11 So, please, proceed. 12 MR. ZUCKERMAN: My answer is essentially the same as 13 it was the last time you asked the question, that the 14 Bureau has an obligation as a condition of its permits of 15 operating the Central Valley Project, including the San 16 Luis Unit, to meet certain water quality conditions 17 downstream. And I believe that this Board has not dictated 18 how they should operate the projects to accomplish that. 19 As a matter of fact, sometimes they allow them not 20 to accomplish it and not be penalized, which is something 21 that we're critical of. But I am quite certain there are 22 some minor releases required at Friant to meet peculiar 23 cold-water fishery requirements in the portions of the San 24 Joaquin River below the dam that I think they're probably 25 relatively minor in nature and probably not terribly CAPITOL REPORTERS (916) 923-5447 9301 1 relevant to the point that you are interested in at this 2 point. 3 MR. BIRMINGHAM: So I want to make sure I understand 4 your testimony, Mr. Zuckerman, you raised a couple of 5 points here. 6 It's your understanding that the Bureau of 7 Reclamation has been ordered by some appropriate body to 8 make releases from Friant Dam for cold-water fishery 9 requirements below the dam? 10 MR. ZUCKERMAN: I suspect that that's the case. 11 MR. BIRMINGHAM: You suspect that that's the case. 12 Do you know if that's the case? Have you ever read any 13 order from any Court, or any agency which requires the 14 Bureau of Reclamation to make cold-water releases from 15 Friant Dam? 16 MR. ZUCKERMAN: I thought I had. But, you know, I've 17 read an awful lot of things in my career. And it's very 18 typical of the Eastern Valley streams that there are some 19 requirements to maintain the trout populations and so forth 20 in the creeks or stream beds below the dam. I believe I 21 have read that somewhere with regard to Friant, a minor 22 amount. 23 MR. BIRMINGHAM: You said that the permits that the 24 Bureau of Reclamation holds to appropriate water or to 25 divert water to San Luis Reservoir require the Bureau of CAPITOL REPORTERS (916) 923-5447 9302 1 Reclamation to meet water quality standards. 2 Was that your testimony? 3 MR. ZUCKERMAN: Yes. 4 MR. BIRMINGHAM: Have you reviewed the permits held 5 by the Bureau of Reclamation to divert water or appropriate 6 water to San Luis Reservoir? 7 MR. ZUCKERMAN: Well, let's put it this way: I've 8 reviewed the permits of the Bureau, in general. And I have 9 reviewed the proceedings of this Board. And I believe the 10 Board has been pretty diligent about retaining jurisdiction 11 in each of the times that they have dealt with these 12 permits to set water quality standards and to retain 13 jurisdiction to modify those standards and coordinate the 14 operations of the two projects accordingly as time goes on. 15 MR. BIRMINGHAM: Now, the answer that you provided to 16 me was not entirely responsive to the question that I've 17 asked. 18 I asked: Have you reviewed the permits held by 19 the Bureau of Reclamation under which the Bureau 20 appropriates water at San Luis Reservoir? 21 MR. ZUCKERMAN: Well, I gave you the best answer that 22 I can. I haven't -- I can't single out permits for a 23 specific project. I believe those were the permits that 24 were first before the Board, though, in the middle '70s. 25 And I'm quite sure that there was both retained CAPITOL REPORTERS (916) 923-5447 9303 1 jurisdiction and water quality standards imposed on the 2 operations of the project at that time. 3 MR. BIRMINGHAM: You're quite sure? 4 MR. ZUCKERMAN: I believe it was in Decision 12-75. 5 MR. BIRMINGHAM: And, again, the language that you've 6 used is "You're quite sure"? 7 MR. ZUCKERMAN: Yeah. You know, I don't know what 8 you're going to ask me when I come up here. I try to 9 prepare as best I can, but it's hard to, you know, go back 10 over the last 30-odd years and recall specifically every 11 detail of everything that's gone on. To the best of my 12 ability I'm answering you truthfully. 13 MR. BIRMINGHAM: Going back to South Delta Water 14 Agency Exhibit 48, Page 39, "Summary of Impacts," earlier I 15 asked you a question about Paragraph B. 16 Do you have any reason to dispute the conclusion 17 that is stated in Paragraph B on Page 39 of South Delta 18 Water Agency Exhibit 48? 19 MR. ZUCKERMAN: It's difficult for me to answer, 20 because I don't -- as I say, I don't -- I don't really know 21 that I've ever read this before. You're asking me to look 22 at one paragraph in here. It's not a subject that I've 23 made an exhaustive study of. 24 So I guess I can say that I don't have any reason 25 to dispute it. But, on the other hand, I would like to do CAPITOL REPORTERS (916) 923-5447 9304 1 a lot more reading and so forth before you ask me to 2 confirm the conclusion that's there. 3 MR. BIRMINGHAM: That's a fair answer, Mr. Zuckerman. 4 I'm almost concluded with my examination. 5 I'd like to go back to Page 4 of Central Delta 6 Water Agency 22. And it states that, 7 (Reading): 8 "The CVP and the SWP have the capability and 9 responsibility to address the problems of the 10 San Joaquin River." 11 It's at the top of Page 4, Mr. Zuckerman. 12 MR. ZUCKERMAN: Well, I'm sorry, I was looking at the 13 wrong page. Yes. 14 MR. BIRMINGHAM: Now, you've made in the sentence 15 that I've just read, we can break it down into a couple of 16 elements, first, the capability. You're talking about the 17 physical capability; is that correct? 18 MR. ZUCKERMAN: Yes. 19 MR. BIRMINGHAM: And responsibility, you're talking 20 about the legal responsibility? 21 MR. ZUCKERMAN: Yes. 22 MR. BIRMINGHAM: That's a legal conclusion? 23 MR. ZUCKERMAN: Yes. 24 MR. BIRMINGHAM: Now -- 25 MR. NOMELLINI: I would argue it's a fact. CAPITOL REPORTERS (916) 923-5447 9305 1 C.O. STUBCHAER: Was that an objection or testifying? 2 MR. BIRMINGHAM: It was an argument. 3 Now, let's -- Mr. Zuckerman, let's talk about the 4 SWP. And go back to the Westlands' Water District Exhibit 5 106. 6 MR. ZUCKERMAN: Are you through with this other one, 7 now? 8 MR. BIRMINGHAM: Yes, I am. Do you have a copy of 9 Westlands' Water District Exhibit 106 in front of you? 10 MR. ZUCKERMAN: Yes. 11 MR. BIRMINGHAM: Now, from what State Water Project 12 facilities can the State of California release water into 13 the San Joaquin River? 14 MR. ZUCKERMAN: I'm not sure that the State has that 15 capability operating by itself. But as I say, they have a 16 fully-integrated operational capability between the two 17 projects. And by getting water directly or indirectly into 18 the Delta-Mendota Canal water can be released at various 19 points from Mossdale on down to several wasteways and so 20 forth that would get water back -- did I say Mossdale, I 21 meant, Mendota, downstream to various wasteways and so 22 forth to get water into the San Joaquin River. 23 The other possibility is that water that is, 24 actually, delivered from the San Luis Canal, or the 25 California Aqueduct ends up getting back into the San CAPITOL REPORTERS (916) 923-5447 9306 1 Joaquin River indirectly through drainage and percolation 2 into adjoining lands that drain back into tributaries of 3 the San Joaquin River and so forth. 4 There are also instances in which during 5 particularly high flows, water from the -- what otherwise 6 would be considered the Tulare Lake Basin is getting back 7 into the San Joaquin River system through Fresno Slough and 8 places like that. So those are the theoretical 9 possibilities that to the best of my knowledge are 10 occurring to one degree or another in different types of 11 years. 12 MR. BIRMINGHAM: But, Mr. Zuckerman, you would agree, 13 wouldn't you, that there are no State Water Project 14 facilities from which it would be physically possible to 15 release water into the San Joaquin River? 16 MR. ZUCKERMAN: I'll stand by the answer I just gave 17 to that same question. 18 MR. BIRMINGHAM: I have no further questions. 19 C.O. STUBCHAER: Thank you, Mr. Birmingham. 20 Mr. O'Laughlin. Mr. O'Laughlin, do you have an 21 estimate of how long your examination of Mr. Zuckerman will 22 take? 23 MR. O'LAUGHLIN: At least an hour. 24 C.O. STUBCHAER: All right. 25 // CAPITOL REPORTERS (916) 923-5447 9307 1 ---oOo--- 2 CROSS-EXAMINATION OF CENTRAL DELTA WATER AGENCY 3 BY THE SAN JOAQUIN RIVER GROUP AUTHORITY 4 BY TIM O'LAUGHLIN 5 MR. O'LAUGHLIN: Good morning, Mr. Stubchaer, Board, 6 Staff, Mr. Zuckerman. 7 MR. ZUCKERMAN: Good morning. 8 MR. O'LAUGHLIN: How are you? 9 MR. ZUCKERMAN: Good. 10 MR. O'LAUGHLIN: On the first page of your testimony 11 you discuss the -- well, let me strike that. 12 I'm confused. What capacity are you testifying in 13 here today? Are you testifying as an expert witness? An 14 attorney as an expert? An engineer? A landowner within 15 Central Delta Water Agency? A Board Member? What is your 16 capacity? 17 MR. ZUCKERMAN: I am cocounsel for the Central Delta 18 Water Agency, have been since its inception. 19 MR. O'LAUGHLIN: Okay. So as I understand your 20 testimony today it's in regards to as cocounsel for Central 21 Delta Water Agency? 22 MR. ZUCKERMAN: That's why I'm here testifying, yes. 23 MR. O'LAUGHLIN: Now, did Central Delta Water 24 Agency's Board of Directors retain you to prepare this 25 testimony, Mr. Zuckerman? CAPITOL REPORTERS (916) 923-5447 9308 1 MR. ZUCKERMAN: Well, I don't have a retainer 2 agreement with the Central Delta Water Agency. I simply 3 act as their cocounsel on -- to do the things that they ask 4 me to do. 5 MR. O'LAUGHLIN: Okay. Well, let me rephrase the 6 question then: Did Central Delta Water Agency Board of 7 Directors ask you to prepare this testimony? 8 MR. ZUCKERMAN: I believe so. 9 MR. O'LAUGHLIN: Has the Central Delta Water Agency 10 Board of Directors, did they review and approve your 11 testimony prior to it being submitted to this Board? 12 MR. ZUCKERMAN: You know, I don't actually recall. 13 It's been several months since the testimony was prepared. 14 I'm reasonably certain it was distributed to them by the 15 manager of the agency. And there have been several 16 meetings in the interim where the progress of this hearing 17 has been discussed. But I don't -- I don't know whether an 18 official resolution was adopted, or I don't have a specific 19 recollection of the discussion of this particular 20 testimony. 21 Generally speaking, we report to them on a monthly 22 basis everything that's going on. And I'm sure our 23 activities here have been well covered with the Board. 24 MR. O'LAUGHLIN: In regards to the testimony that 25 you've prepared, can you tell me how much time you spent in CAPITOL REPORTERS (916) 923-5447 9309 1 preparing your testimony as set forth in Exhibit Number 22? 2 MR. ZUCKERMAN: I can't. 3 MR. O'LAUGHLIN: Okay. Did you, in preparing your 4 testimony for Exhibit Number 22, review the direct 5 testimony that was offered during Phase II? 6 MR. ZUCKERMAN: You know, in all fairness, I don't -- 7 I'm not sure I have a good appreciation of phases in this 8 hearing. I haven't been that close to it. And I don't 9 remember -- and in some cases it seems to me that phases 10 have been taken out of order. So I just don't know. 11 MR. O'LAUGHLIN: Have you reviewed any of the 12 transcripts that have been prepared in regards to this 13 hearing in preparation for your testimony today? 14 MR. ZUCKERMAN: Yes, I have. 15 MR. O'LAUGHLIN: Okay. Do you remember was there any 16 specific transcripts or witnesses that you were looking at? 17 MR. ZUCKERMAN: Yes. 18 MR. O'LAUGHLIN: And what were those? 19 MR. ZUCKERMAN: I've got it right here in front of 20 me. It's the hearing that was held on July 22nd, 1998, and 21 it goes, perhaps, into some further days. But the -- I 22 reviewed the testimony -- cross-examination, actually, of 23 your witnesses, I believe. 24 MR. O'LAUGHLIN: The fishery biologists? 25 MR. ZUCKERMAN: Well, the panel of biologists, yeah, CAPITOL REPORTERS (916) 923-5447 9310 1 that were cross-examined at that time by various parties. 2 It may have only been one day, but it went from about page 3 1000 to page 1263. It seems like a lot of pages for one 4 day, but it might have been. 5 MR. O'LAUGHLIN: On the first page of your testimony 6 am I to understand that it is the official position of 7 Central Delta Water Agency that they support alternative 8 number six, the recirculation plan? 9 MR. ZUCKERMAN: Well, there's a statement there that 10 speaks for itself. And let me quote it. It says, 11 (Reading): 12 "To the extent recirculation can reduce the 13 burden and is otherwise compatible to fishery 14 protection then it should be pursued. However, 15 the need and burden for a comprehensive solution 16 to the San Joaquin River problem should not be 17 dependent upon whether or not recirculation can 18 be implemented." 19 So, I mean, I don't know if I can improve on that, 20 but basically we're saying the obligation exists. And we 21 think circulation -- recirculation would be helpful. But 22 if it isn't, or if it can't be done, it doesn't relieve the 23 responsibility of the projects to address the problems of 24 the San Joaquin River. 25 MR. O'LAUGHLIN: Now, when you say, "address the CAPITOL REPORTERS (916) 923-5447 9311 1 problems in the San Joaquin River" in regards to that 2 statement, are you talking about fulfilling the 3 requirements of the 1995 Water Quality Control Plan, or are 4 you talking about something else? 5 MR. ZUCKERMAN: It's a mixture. I don't suppose it 6 comes as any secret that we don't think that the Board has, 7 up to this point, adequately addressed the problems of the 8 San Joaquin River. And, certainly, we're talking here, at 9 least, about the Water Quality Control Plan. 10 But in our heart of hearts, we believe that the 11 Board has a broader responsibility to try to overcome the 12 destructive forces that have been at work on the San 13 Joaquin River since -- since the '40s or '50s. 14 MR. O'LAUGHLIN: So that would go back, then -- if I 15 can spend a minute, then, that would go back to the 16 underlying premise that Central Delta Water Agency believes 17 that under the Board's authority for Porter-Cologne that it 18 should go back and review the standards and objectives for 19 the 1995 Water Quality Control Plan? 20 MR. ZUCKERMAN: It will. It does that every three 21 years. And -- so, yes. 22 MR. O'LAUGHLIN: Then, at that point in time I'm 23 assuming Central Delta Water Agency will inform the Board 24 of the changes that should be made in the standards and 25 objectives to more fully reach a comprehensive solution to CAPITOL REPORTERS (916) 923-5447 9312 1 the San Joaquin River problem; is that correct? 2 MR. ZUCKERMAN: That would be my recommendation, yes. 3 MR. O'LAUGHLIN: Do you believe, as you sit here 4 today, that the State Water Resources Control Board can 5 proceed forward with the implementation of the 1995 Water 6 Quality Control Plan without first holding a triennial 7 review at this time? 8 MR. ZUCKERMAN: I'm not sure. I just don't know. 9 MR. O'LAUGHLIN: What -- let's go to the second 10 paragraph. We had a discussion -- and I think you were 11 present on and off during last week -- what is your 12 definition of "real water"? 13 MR. ZUCKERMAN: Well, I mean all I can really do is 14 substitute, you know, a synonym. It's actual water. 15 MR. O'LAUGHLIN: So if under baseline conditions 16 water would not have been released from either the Tuolumne 17 or the Merced River to show up at Vernalis on April 15th 18 and, yet, under the San Joaquin River Agreement that water 19 now appears there on April 15th, you would find that to be 20 "real water"? 21 MR. ZUCKERMAN: Well, I think the context here is 22 that if you provide it on the 15th of April and then don't 23 provide it on the 16th of April, it may not be real water 24 within the context that we are recommending. 25 MR. O'LAUGHLIN: Okay. Well, that helps me a little CAPITOL REPORTERS (916) 923-5447 9313 1 bit. What context are you recommending real water? 2 MR. ZUCKERMAN: We would like to see the flow of the 3 river increased over what would otherwise be the case. And 4 it's hard to look at it at any particular moment and reach 5 that conclusion. You have to look at it over the whole 6 season where the flows are important. 7 MR. O'LAUGHLIN: Now, you say flows increased over 8 what would have been the case, is this a year-round 9 standard that you're looking for, or is this a monthly 10 standard? What are you looking for? 11 MR. ZUCKERMAN: Well, the emphasis of the Central 12 Delta Water Agency is upon the quality of the water at 13 times when it is important for uses within our agency for 14 agriculture, to support recreational activities, to support 15 the municipal and industrial diversions that take place in 16 that area and to support environmental needs. And some of 17 these have particular seasons that are important and others 18 tend to be year-round. 19 MR. O'LAUGHLIN: So how would we go about measuring 20 what the flow would need to be increased over the baseline 21 in order to meet those objectives? 22 MR. ZUCKERMAN: Well, one of the ways to do it is to 23 look, for instance, to see what amount of water is 24 necessary to meet the water quality standards at Vernalis 25 during the time period where they are presently imposed. CAPITOL REPORTERS (916) 923-5447 9314 1 And to make sure that there's enough flow in the river so 2 that there are no violations of that standard. 3 I want to just hasten to add in connection with 4 what I said earlier, that when we get to the triennial 5 review thing, we will, again -- the Central Delta Water 6 Agency accepts the recommendations of myself and I believe 7 Mr. Nomellini, will be asking the Board to look at those 8 standards and make sure that they fully meet the needs of 9 agriculture in the Southern and Central Delta portions, 10 which we do not believe they do. 11 MR. O'LAUGHLIN: Okay. Let's focus on the pulse flow 12 period of the 1995 Water Quality Control Plan. If the San 13 Joaquin River Agreement makes the flows available to meet 14 the 1995 Water Quality Control Plan standards, what 15 objection does Central Delta Water Agency have to that? 16 MR. ZUCKERMAN: Insofar as it goes, we have none. 17 The problem we have is that if the Bureau elects a method 18 of doing that which makes it difficult or impossible for 19 them to meet the other standards that they are -- 20 obligations that they have, then we don't think that should 21 be blessed. 22 And although the Board standards don't talk 23 specifically how to do it up to this point, the VAMP and 24 the San Joaquin River Agreement adopt a methodology of 25 meeting those standards which, in our opinion, would be CAPITOL REPORTERS (916) 923-5447 9315 1 incorrect. 2 MR. O'LAUGHLIN: Okay. And why would they be 3 incorrect, Mr. Zuckerman? 4 MR. ZUCKERMAN: Essentially, because they assume 5 contribution from the New Melones Reservoir. That, under 6 certain conditions, makes it infeasible or impossible for 7 the Bureau to meet other water obligations, water quality 8 obligations and contractual deliveries downstream. 9 MR. O'LAUGHLIN: So are you talking about that the -- 10 what the San Joaquin River Agreement calls for from the 11 United States Bureau of Reclamation to release from New 12 Melones during the pulse flow period makes it difficult to 13 meet the other standards and objectives? 14 MR. ZUCKERMAN: Yes, I believe so. 15 C.O. STUBCHAER: Mr. O'Laughlin, is this a good time 16 for the morning break? 17 MR. O'LAUGHLIN: Whenever you would like, 18 Chairman Stubchaer. 19 C.O. STUBCHAER: Okay. Let's take a 12-minute break. 20 (Recess taken from 10:25 a.m. to 10:37 a.m.) 21 C.O. STUBCHAER: Okay. Let's reconvene. 22 Mr. O'Laughlin. 23 MR. O'LAUGHLIN: Thank you, Chairman Stubchaer. 24 Focusing back on the San Joaquin River Agreement, 25 I want to give you just a very brief hypothetical. If on CAPITOL REPORTERS (916) 923-5447 9316 1 the San Joaquin River in the April/May pulse flow period 2 time sufficient water would not be available at Vernalis 3 and the Tuolumne and the Merced Rivers decide to release 4 water in that time period that otherwise would not have 5 been released, would you call that real water? 6 C.O. BROWN: Can I have a clarification on that 7 question, Mr. Chairman? 8 C.O. STUBCHAER: Mr. Brown. 9 C.O. BROWN: You said, "that would not otherwise be 10 released," do you mean otherwise would not be released -- 11 MR. O'LAUGHLIN: During the April/May pulse flow 12 period. 13 C.O. BROWN: Well, would it be released at some other 14 time? 15 MR. O'LAUGHLIN: It may or may not, but it would not 16 be released during the April/May pulse flow time period. 17 MR. ZUCKERMAN: My pausing was for the same reasons 18 that you're asking that question, because if the water 19 needed to come down the river, which I presume it would 20 since there is very little other place for it to go, I 21 don't think it adds flow to the river looking at it over 22 the seasonal aspect. 23 So in the context that I've used the term, I would 24 not consider that to be real water. It's real water during 25 the pulse flow, but it's minus real water after the pulse CAPITOL REPORTERS (916) 923-5447 9317 1 flow. 2 MR. O'LAUGHLIN: Are you aware -- have you had an 3 opportunity to review the State Water Resources Control 4 Board Draft EIR? 5 MR. ZUCKERMAN: Yes, but it's been a while. 6 MR. O'LAUGHLIN: Okay. If you can't answer the 7 questions, that's perfectly acceptable. Just tell us you 8 can't. 9 What is the Board's -- the State Water Resources 10 Control Board's Draft EIR analysis of real water? 11 MR. ZUCKERMAN: Oh, I don't remember. 12 MR. O'LAUGHLIN: When Mr. Nomellini made his opening 13 statement in regards to Central Delta Water Agency not 14 understanding where the San Joaquin River Agreement water 15 would come from, do you know what Mr. Nomellini was talking 16 about? 17 MR. ZUCKERMAN: Maybe you'll get a chance to 18 cross-examine him. I don't know specifically what he was 19 talking about at that point. 20 MR. O'LAUGHLIN: Do you understand, Mr. Zuckerman, 21 under the San Joaquin River Agreement where the water 22 would -- from what districts the water would be made 23 available in order to meet the flows? 24 MR. ZUCKERMAN: Under the San Joaquin River 25 Agreement? CAPITOL REPORTERS (916) 923-5447 9318 1 MR. O'LAUGHLIN: Yes. 2 MR. ZUCKERMAN: Yeah. The districts, per se, would 3 be the ones that are -- have water rights on the Merced and 4 the Tuolumne Rivers and to some degree the ones that have 5 rights on the Stanislaus River. 6 MR. O'LAUGHLIN: And they would release water, or 7 make water available during the April/May time period in 8 order to meet the VAMP target flows; is that correct? 9 THE COURT REPORTER: I didn't hear the end. I'm 10 sorry. "In order to -- 11 MR. O'LAUGHLIN: To meet the VAMP target flows, 12 excuse me. I know the door is opening and closing and it's 13 kind of hard. I'll try to speak up. Sorry about that. 14 THE COURT REPORTER: Thank you. 15 MR. ZUCKERMAN: They might. If there was additional 16 water required and it wasn't all coming from the Bureau's 17 project at New Melones. 18 MR. O'LAUGHLIN: On the -- I'm sorry. Did I cut you 19 off, Mr. Zuckerman? I didn't mean that. 20 MR. ZUCKERMAN: Well, the New Melones releases I 21 don't think, in effect, are being made by any of the 22 districts. I think there's only a couple of districts that 23 have contracts on the Stanislaus River. And I don't think 24 they're participating in those releases. So I think my 25 answer is correct. CAPITOL REPORTERS (916) 923-5447 9319 1 MR. O'LAUGHLIN: Okay. On the first page, why is it 2 Central Delta Water Agency's opinion that an effort for 3 water purchases should be redirected to other areas? 4 MR. ZUCKERMAN: Well, if it isn't entirely clear in 5 that statement and it wasn't clear from Mr. Nomellini's 6 opening statement, let me just try to answer briefly, if I 7 may. 8 The big problem, as far as we're concerned, is the 9 impact of making those releases from the tributaries on 10 which the Bureau doesn't operate directly, impacts to third 11 parties. And since we're trying to address problems that 12 are, at least in our view and I believe other people's 13 view, created and compounded by the Bureau's operations, 14 the obvious solution to curing those problems is to acquire 15 the water from people who are taking deliveries from the 16 project itself, the CVP and/or the State Water Project, or 17 people from outside the basin who are willing to contribute 18 water to that process. 19 MR. O'LAUGHLIN: All right. Now, under the 20 alternatives that have been proposed in the State Water 21 Resources Control Board Draft EIR, alternative number two 22 would take water solely from New Melones; is that correct? 23 MR. ZUCKERMAN: My -- I have an incomplete 24 recollection of that. I thought that was the one where 25 the -- simply the projects would be responsible for meeting CAPITOL REPORTERS (916) 923-5447 9320 1 the standards. And I don't recall one that says that the 2 water would only come from New Melones, but I'll stand 3 corrected if I'm wrong on that. 4 MR. O'LAUGHLIN: Okay. Let's focus on the other ones 5 then, alternatives three, four and alternatives five all 6 have flow requirements for water right holders on the 7 Stanislaus, Tuolumne and Merced Rivers; is that correct? 8 MR. ZUCKERMAN: Honestly, I don't remember the 9 distinctions between the various alternatives, but I'm 10 willing to accept that, unless somebody jumps up and says 11 it's wrong. 12 MR. O'LAUGHLIN: The parties that are participating 13 in the San Joaquin River Agreement making water available 14 as senior water right holders on the tributaries, do you 15 believe that they have the right to make water available at 16 times of the year when it otherwise wouldn't be made 17 available? 18 MR. ZUCKERMAN: Well, if they do it correctly they 19 can. If it's water that they are otherwise entitled to use 20 and do what's necessary to resolve any third-party impacts, 21 I presume they would be authorized to do that. 22 MR. O'LAUGHLIN: On the second page of your 23 testimony, the first sentence, you say, 24 (Reading): 25 "There is little or no correlation between CAPITOL REPORTERS (916) 923-5447 9321 1 fishery flow at Vernalis and survival of San 2 Joaquin River salmon smolt." 3 So do you disagree with the testimony of 4 Ms. Brandis from the U.S. Fish and Wildlife Service in that 5 regard? 6 MR. ZUCKERMAN: I don't believe that she testified 7 that there was a relationship between Vernalis flows and 8 San Joaquin River smolt survival. The impact of her 9 testimony was that she found some correlations between flow 10 at Stockton, I think what she referred to as "real 11 survival," I believe that was the term, of smolts, but she 12 didn't tie it directly to the Vernalis flows. 13 MR. O'LAUGHLIN: You say in the next sentence -- and 14 I know Mr. Birmingham went over this with you briefly, I 15 have a different tact on it -- you said, 16 (Reading): 17 "That fishery data could be obtained from the 18 VAMP -- could be obtained with reduced releases 19 of stored water." 20 What do you mean by that? 21 MR. ZUCKERMAN: Well, as I understand the biological 22 testimony and the various prescriptions that U.S. Fish and 23 Wildlife has been pursuing on the San Joaquin River for the 24 last several years, they're looking at different 25 relationships between flow in the San Joaquin River at CAPITOL REPORTERS (916) 923-5447 9322 1 Vernalis and export pumping levels. 2 And, you know, the Water Quality Control Plan, 3 essentially, has an one-to-one limitation. Prescriptions 4 that they've been imposing have been at higher ratios of 5 San Joaquin River flow to export. So they have some data 6 points, but because of the types of years that have 7 occurred more recently, they tend to be concentrated either 8 in the very high end of the flow ranges or the low end. 9 And what we're saying is that in all likelihood, 10 nature will provide us, over this 12-year period, with a 11 range of conditions that will allow us to use the naturally 12 occurring flows in the river with some fluctuation, export 13 rates so that we can begin to collect enough data points in 14 the midrange to be able to reach some reasonable 15 conclusions. 16 MR. O'LAUGHLIN: So if I understand that correctly, 17 then, basically what we would try to do is what the natural 18 flow is in the river during the -- let's take the April/May 19 pulse flow time, then devise an export limitation that 20 would hopefully give us some relationship statistically 21 between exports and flows without releasing additional 22 stored water? 23 MR. ZUCKERMAN: That would be the emphasis, yes, to 24 try to minimize the amount of water that needs to be 25 released from the other tributaries -- CAPITOL REPORTERS (916) 923-5447 9323 1 MR. O'LAUGHLIN: Okay. Now, you're going to have 2 to -- 3 MR. ZUCKERMAN: -- and from the Stanislaus. 4 MR. O'LAUGHLIN: Sorry about that. Now, help me 5 reconcile that statement with your statement earlier that 6 what you would like to see is flow increased over what 7 would have been the case. 8 MR. ZUCKERMAN: I'm sorry. Where is the -- 9 MR. O'LAUGHLIN: No, you gave that orally in your 10 testimony. What you said was you would be looking for a 11 flow increase over what would have been the case. 12 MR. NOMELLINI: I would like to object to that. I 13 think the testimony was with regard to the definition of 14 "real water." It's just a little out of context. I don't 15 want to belabor it, but I think that's where the confusion 16 is. 17 C.O. STUBCHAER: I think that's right. 18 Mr. O'Laughlin, can you try another question? 19 MR. O'LAUGHLIN: Well, if we're looking for natural 20 flow, or flow that would occur without any reoperations by 21 any of the upstream tributaries, what I'm understanding you 22 now to say is that that's acceptable to Central Delta Water 23 Agency? 24 MR. ZUCKERMAN: What I'm saying is that I think that 25 the type of experimentation that the fishery biologists are CAPITOL REPORTERS (916) 923-5447 9324 1 interested in conducting during this 12-year period could 2 largely be accomplished on -- I think, maybe the word 3 "natural flows," but I think the base flow is the term 4 that's being used. 5 You might have to make some adjustments in the 6 export rates to achieve the ratios that you're looking for, 7 but, by-and-large, we think that you'd probably get a full 8 range of experiences under that experiment that would allow 9 you to achieve the purposes of the study. 10 Now, obviously, nobody wants to see the San 11 Joaquin River go down to 0 or go down to 2,000, or whatever 12 the lower side of the thing is. In those kinds of 13 situations I think you would have to take other measures to 14 ensure that there was a healthy condition in the Lower San 15 Joaquin River. 16 MR. O'LAUGHLIN: Let me, then, understand your 17 testimony a little bit. Let's say that under the 1995 18 Water Quality Control Plan it calls for flows of 7,000 csf 19 during the pulse flow period at Vernalis. And under 20 naturally occurring conditions with no reoperations by any 21 of the reservoir operators, the pulse flow period comes 22 around and we have 4,000 csf at Vernalis. 23 Your statement would be, then, that we should then 24 take that 4,000 put an export component to it and run the 25 experiment without releasing additional stored water? CAPITOL REPORTERS (916) 923-5447 9325 1 MR. ZUCKERMAN: Well, what I'm saying is you might 2 not automatically go to a two-step process at that point 3 where you're trying to get the flow up to 9,000, or 8600, 4 or whatever it is. But you might look at the situation and 5 say this is the year when we could take a look at 5,000 on 6 a different kind of ratio of San Joaquin River flows to 7 exports and not just sort of mindlessly dump all our water 8 into the San Joaquin River. 9 I think the testimony pointed out that they would 10 like to see some statistical relationship at the lower end 11 of the flow range. I think that's as important as finding 12 out what goes on at midrange and in the upper range. 13 MR. O'LAUGHLIN: On Page 3 of your testimony you ask 14 that the annually adjusted export pumping rates correlate 15 with target flows. 16 Can you tell me what you mean by "correlate"? 17 MR. ZUCKERMAN: Well, my understanding, which 18 admittedly is not perfect, but of the experiment that 19 biologists are interested in operating is -- as I mentioned 20 a few minutes ago, has to do with the ratio between the 21 flow in the river at Vernalis and the export pumping rates, 22 instantaneous relationships were over a period of a month. 23 And there's two ways to affect that ratio. One, 24 is to vary the flows in the San Joaquin River. The other 25 is to vary the export pumping rates. So you can do it on CAPITOL REPORTERS (916) 923-5447 9326 1 either end or both ends of that ratio. 2 What we're suggesting here is that if you're 3 trying to do a two-to-one ratio and your flow in the San 4 Joaquin River is 5,000 csf, you could achieve the 5 two-to-one ratio by holding your export rates at 2500 csf. 6 That's specifically what we're talking about. 7 MR. O'LAUGHLIN: In paragraph number 5 on Page 3, is 8 it my understanding that you're going to leave the 9 magnitude of the pulse in export pumping adjustments up to 10 fishery experts, do you mean resource agencies? 11 MR. ZUCKERMAN: Well, bear in mind what we're talking 12 about there specifically is the problem with the Delta 13 smelt, not the pulse flows on the river system. So you may 14 be mixing up two concepts. 15 MR. O'LAUGHLIN: Okay. So would you see in regards 16 to the Delta smelt that if there is a time when Delta smelt 17 are showing up at the pumps that it may be necessary to 18 have a pulse flow on the San Joaquin River and reduce 19 export pumping at the same time? 20 MR. ZUCKERMAN: Well, it might be, but it's not 21 limited to the San Joaquin River. Depending upon where the 22 bulk of the smelt population is located, you can oftentimes 23 affect that significantly by flows from the Sacramento 24 River, particularly, if you use the Delta cross channel as 25 a mechanism for diverting water farther into the Central CAPITOL REPORTERS (916) 923-5447 9327 1 Delta, or if the smelt are more on the main stem of the 2 Sacramento, closing the cross channel and trying to move 3 the smelt farther downstream. 4 So I think there are more tools that the operators 5 have at that point to deal with Delta smelt populations 6 than just pulse flows on the San Joaquin River. 7 MR. O'LAUGHLIN: In regards to paragraph number 6 on 8 Page 3, are you aware that the San Joaquin River Agreement 9 calls for an operable Head of Old River Barrier? 10 MR. ZUCKERMAN: Yes. 11 MR. O'LAUGHLIN: And are you aware that while no 12 design or specifications have been set to that, that the 13 San Joaquin River Agreement contemplates that a full range 14 of alternatives would be evaluated for an operable Head of 15 Old River Barrier? 16 MR. ZUCKERMAN: Well, I have to admit that I wasn't 17 aware that they had included fish needs in that deal. If 18 they have, I'm pleased, I think that's something that 19 should be looked at. 20 MR. O'LAUGHLIN: Okay. Maybe I can rephrase it 21 another way. Are you aware that the agreement has not 22 excluded any alternatives that may be used at the Head of 23 Old River Barrier? 24 MR. ZUCKERMAN: Well, no. But I mean look at it the 25 other way, the Water Quality Control Plan doesn't exclude CAPITOL REPORTERS (916) 923-5447 9328 1 the use of a barrier at the Head of Old River either, it 2 just doesn't require it. It talked about studying it. So 3 there's a lot -- what is, you know -- there's a logical 4 problem between what's excluded and what's required, but 5 there's a gap in there somewhere. 6 MR. O'LAUGHLIN: By your testimony on Page 3, 7 Paragraph 6, am I to take it that Central Delta Water 8 Agency supports the installation of a Head of Old River 9 Barrier? 10 MR. ZUCKERMAN: We have consistently supported that 11 as long as it's operated in conjunction with other 12 facilities to make sure that the water available within the 13 channels of the South Delta, and to some degree the Central 14 Delta, continues to be of sufficient quality and level so 15 that the diverters in those areas are not harmed by the 16 operations of the Head of Old River Barrier. 17 MR. O'LAUGHLIN: Are you aware, Mr. Zuckerman, of any 18 impacts from the installation of the Head of Old River 19 Barrier on either water quality or on water levels within 20 Central Delta Water Agency? 21 MR. ZUCKERMAN: Yes, I am. As a matter of fact, I'm 22 looking at Mr. Howard now, but sometimes my time sequence 23 memory is not so great. But after one of the Board's -- I 24 think it was the Draft of their EIS came out, maybe just 25 prior to that, we raised some questions about what the CAPITOL REPORTERS (916) 923-5447 9329 1 impacts of the Head of Old River Barrier would be on water 2 quality in the main stem of the San Joaquin River below the 3 barrier and, particularly, down into the eastern portions 4 of the Central Delta. 5 And the Board did conduct, or ask the Department 6 of Water Resources to conduct some studies at that time 7 which indicated that there was an impact upon water quality 8 in the area of the San Joaquin River at Acker Island -- 9 Turner Cut. 10 MR. NOMELLINI: Close. 11 MR. ZUCKERMAN: And points upstream of there towards 12 the City of Stockton up the river. 13 MR. O'LAUGHLIN: Realizing your time sequence can be 14 off, can you help point me in the direction of whether or 15 not that document is part of the State Water Resources 16 Control Board Draft EIR for this proceeding, or was that 17 for some other proceeding? 18 MR. ZUCKERMAN: Memory doesn't work quite that 19 precisely, I'm sorry. 20 MR. O'LAUGHLIN: Thank you very much, Mr. Zuckerman. 21 MR. ZUCKERMAN: Thank you. 22 MR. O'LAUGHLIN: I'm done. 23 C.O. STUBCHAER: Mr. O'Laughlin, thank you. 24 Staff have questions for Mr. Zuckerman? 25 MS. LEIDIGH: No questions. CAPITOL REPORTERS (916) 923-5447 9330 1 C.O. STUBCHAER: No questions. Board Members? 2 C.O. BROWN: I have a question. 3 C.O. STUBCHAER: Mr. Brown. 4 C.O. BROWN: Mr. Zuckerman, you're talking about real 5 water and your definition of it. The San Joaquin River 6 Agreement, if their contributions toward water quality were 7 made with real water as you perceive it, would you support 8 their proposal? 9 MR. ZUCKERMAN: The basic objection that we have is 10 that we think that it's taking water that is necessary to 11 provide a downstream quantity and quality situation later 12 in the year, particularly during the irrigation season. 13 And if -- that is our principal problem with it. 14 We think that there are downstream people who largely have 15 superior water rights who are going to be suffering poorer 16 water quality than they actually need as a result of the 17 agreement. 18 C.O. BROWN: Okay. Perhaps, you didn't quite 19 understand the question. 20 MR. ZUCKERMAN: Apparently I didn't. 21 C.O. BROWN: The question was: If they were to 22 obtain a source of water that would be -- as a for 23 instance, some problem with some land, which obviously 24 would be water that's not consumptively used then and I'm 25 not advocating that and don't misunderstand me, but that's CAPITOL REPORTERS (916) 923-5447 9331 1 probably an obvious example of water that could be made 2 available in addition to maybe reservoir reoperations, or 3 several other things that could be done, if those kinds of 4 waters were made available through their agreement to 5 achieve the purposes in mind, could you then support their 6 proposal? 7 MR. ZUCKERMAN: That would alleviate our major 8 problem with it. We have a little bit of heartache with 9 the idea that this may not be the most beneficial use of 10 the water supply of the San Joaquin Valley given, you know, 11 various demands on it. But, yes, that would alleviate our 12 biggest problem with the agreement. 13 C.O. BROWN: Thank you, Mr. Zuckerman. 14 Thank you, Mr. Chairman. 15 C.O. STUBCHAER: Okay. Any questions? 16 MEMBER DEL PIERO: No. 17 C.O. STUBCHAER: All right. 18 MEMBER DEL PIERO: Thanks. 19 C.O. STUBCHAER: All right. That concludes the 20 cross-examination of this panel. 21 Do you have any redirect, Mr. Nomellini? 22 MR. NOMELLINI: I have some very brief redirect, 23 Mr. Chairman. 24 C.O. STUBCHAER: All right. Excuse me, I was looking 25 up at the podium and you're sitting down. Sorry, please, CAPITOL REPORTERS (916) 923-5447 9332 1 go ahead. 2 ---oOo--- 3 REDIRECT EXAMINATION OF THE CENTRAL DELTA WATER AGENCY 4 BY DANTE JOHN NOMELLINI 5 MR. NOMELLINI: Mr. Zuckerman, in answers to 6 questions from Mr. Birmingham you made reference to the 7 Racanelli Decision. Were you making reference to United 8 States versus State Water Resources Control Board cited as 9 182, Cal.App. 3d, Page 82? 10 MR. ZUCKERMAN: Yes, I was. 11 MR. NOMELLINI: And up on the screen I have a display 12 that we have marked Central Delta Water Agency 24, which I 13 put out in the mail yesterday, Mr. Chairman. And I handed 14 copies out this morning as well, which contains portions of 15 Pages 128 and 129. 16 Could you point out, Mr. Zuckerman, whether or not 17 any of the language on Central Delta Water Agency 24 is 18 language that you were referring to in your answer to 19 Mr. Birmingham? 20 MR. ZUCKERMAN: Yes, it was. In particular when I 21 made the statement that I thought these were settled law, I 22 went back and looked at the Racanelli Decision and 23 extracted some quotations from it that I thought would be 24 helpful to the Board in understanding my opinion at point 25 both as to the salinity control obligation and the CAPITOL REPORTERS (916) 923-5447 9333 1 discussions about the interrelated operations aspects of 2 the two projects. 3 MR. NOMELLINI: So is it your testimony that in your 4 opinion both the CVP and the State Water Project have the 5 legal obligation to provide salinity control in the Delta? 6 MR. ZUCKERMAN: Yes, it is. 7 MR. NOMELLINI: One last one. My skills at working 8 this machine have rusted. 9 C.O. STUBCHAER: Once you turn the knob you don't 10 move the -- 11 MR. NOMELLINI: I'm not sure we're going to get the 12 value out on that part of the screen. 13 Mr. Zuckerman, also in response to 14 Mr. Birmingham's question you cited the Ivanhoe versus 15 McCracken case. Was your reference to 357, U.S. 275? 16 MR. ZUCKERMAN: Yes. 17 MR. NOMELLINI: And Central Delta Water Agency 18 Exhibit 25 contains the excerpts from that case to which 19 you were making reference; is that correct? 20 MR. ZUCKERMAN: Yes, it is. And I just want to say 21 one other thing rather briefly about it. He had put up on 22 this same screen a copy of Section 12202 of the Water Code 23 and was asking me about whether it imposed a salinity 24 obligation. And I was trying to answer that question, it 25 would have been helpful to have 12201 sitting on the screen CAPITOL REPORTERS (916) 923-5447 9334 1 at the same time, because there is a more direct reference 2 to Section 11460 of the Water Code in 12201, which makes it 3 clear that it is an obligation of the Central Valley 4 Project where it may only be included in a dependent phase, 5 or a parenthetical phase in 12202. 6 And I made a statement about, "Well, it must have 7 been in the minds of the drafters at that time." And 8 looking at the language of the McCracken case, which came 9 down from the U.S. Supreme Court in 1958, which was the 10 year before the Delta Protection Act was enacted by the 11 Legislature and where the U.S. Supreme Court at that time 12 had discussed the salinity control and coordinated 13 operations of the two projects in the language that you'll 14 see on the screen there I think that it makes it even 15 clearer what the legislative history of the Delta 16 Protection Act must have been at that time. 17 I thought it might be helpful to collect this 18 information and get it in front of you, so you don't have 19 to wade through the reports and legislative history. 20 MR. NOMELLINI: That's all I have on redirect, 21 Mr. Chairman. 22 C.O. STUBCHAER: Thank you. Who wishes to 23 recross-examine Mr. Zuckerman? Mr. Birmingham. No one 24 else. 25 Please, proceed, Mr. Birmingham. CAPITOL REPORTERS (916) 923-5447 9335 1 ---oOo--- 2 RECROSS-EXAMINATION OF THE CENTRAL DELTA WATER AGENCY 3 BY SAN LUIS DELTA-MENDOTA WATER AGENCIES 4 BY THOMAS BIRMINGHAM 5 MR. BIRMINGHAM: Mr. Zuckerman, did I understand your 6 testimony to be that Section 12201 of the Water Code 7 imposes an obligation on the Bureau of Reclamation to 8 maintain water quality standards in the Bay-Delta? 9 MR. ZUCKERMAN: What it makes very clear is that 10 Sections 11460 and 11463 are obligations of the projects. 11 MR. BIRMINGHAM: Well, let's look at Water Code 12 Section 12201, which is Central Delta Water Agency Exhibit 13 27. Is that correct? 14 MR. ZUCKERMAN: Yes. 15 MR. BIRMINGHAM: It says that the legislature finds 16 that the -- 17 MR. ZUCKERMAN: I can read it. 18 MR. BIRMINGHAM: Let me read it, if I may. Okay, it 19 states that, 20 (Reading): 21 "The Legislature finds that the maintenance of 22 an adequate water supply in the Delta sufficient 23 to maintain and expand agricultural industry, 24 urban and recreational development in the Delta 25 as set forth in Section 12220, Chapter 2 of this CAPITOL REPORTERS (916) 923-5447 9336 1 part, and to provide a common source of 2 freshwater for export areas of water deficiency 3 is necessary to the peace, health, safety and 4 welfare of the people of the state." 5 Is that correct? 6 MR. ZUCKERMAN: Yes, that's -- so far. 7 MR. BIRMINGHAM: Now, where in the words that I have 8 read thus far from 12201 is there a reference to the 9 Central Valley Project, or any other federally operated 10 reclamation project? 11 MR. ZUCKERMAN: In the words that you've read so far, 12 there are none. 13 MR. BIRMINGHAM: And then it goes on to say, 14 (Reading): 15 "Except that such delivery of such water will be 16 subject to the provisions of Section 10505 and 17 Section 11460 to 11463 inclusive of this code." 18 Is that correct? 19 MR. ZUCKERMAN: Yes. 20 MR. BIRMINGHAM: Now, that means that the delivery of 21 water to the Delta is subject to the provisions of 11460 22 and 11463 of the Water Code; isn't that correct? 23 MR. ZUCKERMAN: That's part of it. 24 MR. BIRMINGHAM: And the delivery of water to export 25 areas are subject to 11460 to 11463? CAPITOL REPORTERS (916) 923-5447 9337 1 MR. ZUCKERMAN: Correct. 2 MR. BIRMINGHAM: Now, isn't it correct -- first let 3 me ask this question, Mr. Zuckerman. In the part that I 4 have just read, where is there a reference to the Federal 5 Central Valley Project? 6 MR. ZUCKERMAN: This is no direct reference in that 7 language. 8 MR. BIRMINGHAM: Okay. Now, you're familiar, 9 generally, with rules of statutory construction, aren't 10 you, Mr. Zuckerman? 11 MR. ZUCKERMAN: Yes. 12 MR. BIRMINGHAM: And one of the rules of statutory 13 construction is generally the specific control over the 14 general; is that correct? 15 MR. ZUCKERMAN: Yes. 16 MS. KOEHLER: I'm sorry. I understand you want to 17 give him a lot of leeway. 18 C.O. STUBCHAER: Yes. 19 MS. KOEHLER: But at this point we are now having a 20 lawyer cross-examining another lawyer of the rules of 21 statutory construction. And I feel we are beyond, I don't 22 know, the scope of an evidentiary hearing in this case. 23 I appreciate Mr. Birmingham's concern about the 24 witness's interpretation of the statutory provision. And 25 I -- in all fairness as I was asked to do by another CAPITOL REPORTERS (916) 923-5447 9338 1 counsel I probably should have objected to the recross, but 2 I do feel that we are having lawyers testify about what 3 statutes mean before this Board. And that has got to be 4 beyond the scope of a factual evidentiary hearing. 5 C.O. STUBCHAER: Mr. Birmingham. 6 MR. BIRMINGHAM: I have to say quite candidly, 7 Mr. Chairman, that I quite agree with Ms. Koehler. And you 8 may recall that very early on in these hearings I voiced an 9 identical objection to questions that were asked and 10 conclusions that were being expressed. Ms. Koehler is 11 correct that we are now having a debate about what these 12 statutes mean, that is a legal question. 13 The reason that I'm asking these questions is 14 because Mr. Zuckerman has stated something as though it is 15 fact, it is not fact. It is his interpretation of these 16 statutes. And if permitted to question him, I think I 17 could show that there is potentially other interpretations 18 of the statute that he may not agree with but that a 19 reasonable judge could reach. 20 C.O. STUBCHAER: Ms. Koehler. 21 MS. KOEHLER: I have no doubt that Mr. Birmingham is 22 correct, but I submit that is not the appropriate subject 23 of cross-examination in an evidentiary hearing. This is an 24 evidentiary hearing and I believe that those arguments are 25 best made by Mr. Birmingham, Mr. Zuckerman and CAPITOL REPORTERS (916) 923-5447 9339 1 Mr. Nomellini in their briefs. 2 C.O. STUBCHAER: I'm going to sustain the objection. 3 I think that the redirect was all right, because 4 Mr. Zuckerman was asked earlier, "What documents were you 5 relying on? What laws were you relying on?" Now he's 6 shown the laws. But the content of the laws I think can be 7 covered in your briefs both on the part of Central Delta 8 and Westlands. 9 Ms. Forster. 10 MEMBER FORSTER: Well, you've already sustained it. 11 I was just going to say from one Board Member's perspective 12 once we got down this road and we're putting everything 13 together in an understanding, I appreciate all the 14 conversation about these statutes, because I'm trying to 15 understand how they fit in. 16 And so I think it's difficult to go down the road 17 and get three fourths of the way down and then stop. Maybe 18 we shouldn't have even started down the road, but I think 19 this is very informative. But you have sustained it and I 20 understand and I'll look forward to it in the briefs. 21 C.O. STUBCHAER: That's my comment. We will finish, 22 we will go a hundred percent down the road in the briefs 23 and those may be read. 24 MR. BIRMINGHAM: Now, Mr. Zuckerman, Central Delta 25 Water Agency Exhibit 24 is a paragraph from the Racanelli CAPITOL REPORTERS (916) 923-5447 9340 1 Decision; is that correct? 2 MR. ZUCKERMAN: Yes. 3 MR. BIRMINGHAM: How many pages in the Official 4 California Reporter, which is -- how many pages is the 5 Racanelli Decision? 6 MR. ZUCKERMAN: Oh, it's at least 80 pages as I 7 recall. 8 MR. BIRMINGHAM: And you'd agree that there are many 9 other paragraphs in the Racanelli Decision from which 10 bright water lawyers could extract quotes to support their 11 position? 12 MR. ZUCKERMAN: Yeah. I don't think any of them 13 would contradict this one, though. 14 MR. JACKSON: Assumes facts not in evidence. 15 MEMBER DEL PIERO: Is that "the bright water 16 lawyers"? 17 MR. BIRMINGHAM: I didn't say that there were any in 18 this room. 19 MEMBER DEL PIERO: Oh, okay. 20 MR. BIRMINGHAM: I have no further questions. 21 C.O. STUBCHAER: Thank you, Mr. Birmingham. 22 Staff? 23 MS. LEIDIGH: No. 24 MR. HOWARD: No. 25 THE COURT: Board Members? CAPITOL REPORTERS (916) 923-5447 9341 1 C.O. BROWN: Ms. Forster. 2 C.O. STUBCHAER: Oh, you have a question, 3 Mr. Birmingham -- I'm sorry, Ms. Forster. 4 MEMBER FORSTER: I'm sorry, Mr. Birmingham. 5 MR. BIRMINGHAM: I would demand an apology. 6 C.O. STUBCHAER: I apologize. 7 MEMBER FORSTER: I wrote down one of the statements 8 that you made about two hours ago, Mr. Zuckerman, and I'm 9 trying to now put it back into the context of what the 10 discussion was. And I'm not sure I can do it, so I'm just 11 going to read it out and see if you can remember it, 12 because I wanted you to expand on this a little bit more. 13 I think we were talking about the Bureau and 14 releases on the San Joaquin River and the VAMP. And you 15 said something that I probably haven't got verbatim but it 16 went like this: 17 "Most of the info they need to obtain could be 18 done without the extent of releases from the upstream 19 reservoirs." 20 Do you remember talking about that? 21 MR. ZUCKERMAN: (Witness nods.) 22 MEMBER FORSTER: Can you just enlighten me a little 23 bit more by what you mean by that? 24 MR. ZUCKERMAN: Yeah. The -- as I understand both 25 what I observed myself and what I've read in the CAPITOL REPORTERS (916) 923-5447 9342 1 transcripts, since 1995 we've had a series of fairly 2 unusual water years. We've had some very wet years and a 3 dry year, dry winter. 4 And the experimentation that Fish and Wildlife, 5 Fish and Game have been conducting has been hampered 6 somewhat by those conditions. They've had extreme flood 7 situations and low water years. And what they're lacking 8 to connect the dots, so to speak, of their experimentation 9 is more experience in the middle range of flows. 10 I believe that, at least for starters, that nature 11 is likely to give us some variation more in the middle of 12 the range of normal so that we have an opportunity to get 13 some of those experiences under our belt. And before we 14 start trying to create conditions that would require a lot 15 of reservoir releases, we ought to wait a little bit and 16 see if nature is going to provide that range of experience 17 to us so that we don't need to -- I hate to use the word 18 "waste" in front of this Board -- but release a lot of 19 water upstream that would turn out in the long run that we 20 didn't need to do and, thereby, deprive people that rely 21 upon those flows downstream the opportunity to use them and 22 benefit from them. 23 Does that help? 24 MEMBER FORSTER: Thank you. Yeah. I remember that. 25 Thank you. CAPITOL REPORTERS (916) 923-5447 9343 1 C.O. STUBCHAER: Okay. Exhibits? 2 MR. NOMELLINI: I'd move the exhibits of Central 3 Delta Water Agency into evidence. We've added the -- just 4 excerpts from the cases and the statutes. 5 MR. O'LAUGHLIN: Are you going to mail those? 6 MR. NOMELLINI: I've already mailed them. I think 7 for the reference of the record, they should be admitted 8 although they, perhaps, are just simply judicially -- 9 MS. WHITNEY: Those are Exhibits Central Delta 24, 10 25, 26 and 27? 11 MR. NOMELLINI: Correct. 12 C.O. STUBCHAER: Any objections? Ms. Leidigh. 13 MS. LEIDIGH: Yeah, excuse me. Didn't you also have 14 some other exhibits that Mr. Zuckerman was testifying to? 15 C.O. BROWN: You've got to turn it on, Barbara. 16 MS. LEIDIGH: I'm sorry. Didn't you also have some 17 other exhibits, like Exhibit 22? 18 MR. NOMELLINI: Yeah, his testimony -- Exhibit 22 19 would be his testimony. 20 MS. LEIDIGH: Okay. And you're offering that? 21 MR. NOMELLINI: Yes. 22 MS. LEIDIGH: Anything else that you're offering? 23 MR. NOMELLINI: I think that's it for now. 24 MS. LEIDIGH: Okay. 25 C.O. STUBCHAER: Ms. Whitney, does that jive with CAPITOL REPORTERS (916) 923-5447 9344 1 your numbers? 2 MS. WHITNEY: 22 does. Central Delta Water Agency 3 also offered -- or introduced Number 15 on July 1st and 4 that one has never been accepted. I don't remember what 5 the circumstances were. 6 MR. NOMELLINI: Number 16? 7 MS. WHITNEY: Number 15. 8 MR. NOMELLINI: 15, I didn't put any testimony in in 9 this phase relative to that letter. So I would hold that 10 for introduction later. I thought I followed through on 11 that with Mr. Pettit at the time of his testimony. 12 MS. WHITNEY: We checked the transcripts. 13 MR. NOMELLINI: If you want to put it in, put it in. 14 I would like it in. If there's any objection to it, we can 15 deal with it later. 16 MS. WHITNEY: Is there any problem to putting it in 17 now? 18 C.O. STUBCHAER: Mr. O'Laughlin? 19 MR. O'LAUGHLIN: Can I ask staff now what is Central 20 Delta Water Agency Exhibit 23? 21 MS. WHITNEY: 23 is an agreement between California 22 Department of Fish and Game and the United States 23 Department of the Interior, Bureau of Reclamation regarding 24 interim instream flows and fishery studies in the 25 Stanislaus River below New Melones Reservoir. And that was CAPITOL REPORTERS (916) 923-5447 9345 1 accepted in November. 2 MR. O'LAUGHLIN: Okay. I have no objection to the 3 admittance of 22 and Exhibits 24 through 27. 4 MR. NOMELLINI: How about 15? 5 C.O. STUBCHAER: What about 15? 6 MR. O'LAUGHLIN: I don't have any problem with 15. 7 C.O. STUBCHAER: All right. Seeing no objections, 8 the exhibits are accepted. 9 Thank you, Mr. Zuckerman. 10 MR. NOMELLINI: Thank you, Mr. Chairman. 11 MR. ZUCKERMAN: Thank you. I hope I've been of some 12 assistance. 13 C.O. STUBCHAER: All right. Mr. Birmingham? 14 MR. BIRMINGHAM: I would move for the admission of 15 Westlands Exhibit 106 which is the Sacramento-San Joaquin 16 Stream and Reservoir Systems, dated November 1992. 17 C.O. STUBCHAER: And that was prepared by DWR, was 18 it? 19 MR. BIRMINGHAM: It is a DWR public document, yes, 20 Mr. Stubchaer. 21 C.O. STUBCHAER: All right. Thank you. Any 22 objections? Seeing none that is accepted. 23 Ms. Koehler? 24 MS. KOEHLER: Thank you, Mr. Chairman. I'm happy to 25 put my panel on now if you'd like. What we'd -- I think in CAPITOL REPORTERS (916) 923-5447 9346 1 the interest of time I'm just going to present Ms. Andrews, 2 Mr. Keir and Mr. Rosekrans all at once. Do you want me to 3 go ahead and proceed now, or do you want to take an early 4 lunch? 5 C.O. STUBCHAER: Will they all be here at once? 6 MS. KOEHLER: They're all here now and they will all 7 be here after lunch. So -- 8 C.O. STUBCHAER: Well, let's start now. 9 MS. KOEHLER: Okay. 10 C.O. STUBCHAER: We have 20 minutes for the direct, 11 which will lead us to a logical lunch break. 12 MS. KOEHLER: We're going to begin with a brief 13 opening statement while my witnesses are getting settled so 14 we can use every moment here -- 15 C.O. STUBCHAER: Sure. 16 MS. KOEHLER: -- efficiently. 17 C.O. STUBCHAER: Have all you witnesses, ladies and 18 gentlemen, taken the oath? 19 MR. KEIR: I've not been sworn, Jim. 20 C.O. STUBCHAER: All right. Please, stand raise your 21 right hand. Do you promise to tell the truth in this 22 proceeding? 23 MS. ANDREWS: I do. 24 MR. KEIR: I do. 25 MR. ROSEKRANS: I do. CAPITOL REPORTERS (916) 923-5447 9347 1 C.O. STUBCHAER: All right. Please, be seated. 2 ---oOo--- 3 OPENING STATEMENT BY SAVE THE SAN FRANCISCO BAY ASSOCIATION 4 BY CYNTHIA KOEHLER 5 MS. KOEHLER: Save the Bay is here today neither to 6 support nor to oppose the San Joaquin River Agreement, but 7 to advocate that the Board craft a solution that is most 8 likely to lead to the comprehensive protection of public 9 trust resources of the Bay-Delta Estuary, which is how this 10 Board correctly formulated its goals in its own Draft 11 Environmental Impact Report. 12 Overall, it is clear that the San Joaquin River 13 Agreement will not achieve this objective within the San 14 Joaquin River Basin. Clearly, whichever alternative is 15 adopted by the Board, further and on going action by this 16 body will be required to ensure compliance with the 17 standards established by the 1995 Water Quality Control 18 Plan. 19 We do believe, however, that there is potential 20 merit in the Vernalis Adaptive Management Program, which is 21 Appendix A to the San Joaquin River Agreement. Our 22 hesitation in endorsing the VAMP program stems from certain 23 defects in the package in which it has been brought to you, 24 namely, the San Joaquin River Agreement, which have the 25 potential to undermine the efficacy of the VAMP study. CAPITOL REPORTERS (916) 923-5447 9348 1 These defects can be easily remedied by this Board. 2 With this in mind, Save the Bay has four points to 3 make in regard to the Board's action in this phase, Phase 4 II-A. First, the evidence before the Board demonstrates 5 that none of the alternatives in the Draft Environmental 6 Impact Report, including the San Joaquin River Agreement, 7 will meet the narrative standard to double salmon in the 8 Bay-Delta watershed. 9 That standard, as you recall, provides that water 10 quality conditions shall be maintained together with other 11 measures in the watershed sufficient to achieve a doubling 12 of the natural production of chinook salmon from the 13 average production of 1967 to 1991, consistent with the 14 provisions of state and federal law. 15 C.O. STUBCHAER: Would you like her to slow down a 16 little? 17 THE COURT REPORTER: Yes. 18 C.O. STUBCHAER: Could you slow down a little bit for 19 the Court Reporter? 20 MS. KOEHLER: I'm sorry. 21 THE COURT REPORTER: Thank you. 22 C.O. STUBCHAER: You have a copy of the written 23 statement you can give to the Court Reporter afterwards? 24 MS. KOEHLER: I will do better. I'm sorry. 25 C.O. STUBCHAER: All right. CAPITOL REPORTERS (916) 923-5447 9349 1 MS. KOEHLER: There is no question that this is a 2 "flow dependent objective" within the meaning given to that 3 term in this hearing. And there appears to be no serious 4 question that attainment of the Vernalis standard alone -- 5 if it is attained -- is not a surrogate for the narrative 6 standard. 7 The most significant piece of scientific work 8 developed today on the biological requirements of meeting a 9 doubling standard for salmon in the San Joaquin Basin is 10 the working paper on the Restoration Needs, Habitat 11 Restoration Actions to Double Natural Production of 12 Anadromous Fish in the Central Valley, dated May 9th, 1995. 13 That paper will be referred to by these witnesses as "the 14 working paper." 15 As we will discuss today, the San Joaquin River 16 Agreement flows are far below those in the working paper 17 and even those may be too conservative from the perspective 18 of actually obtaining a doubling standard. Our 19 recommendation is that as part of any order that this Board 20 issues in this proceeding that it commit to a rigorous 21 process to develop a plan to satisfy the narrative standard 22 including an ambitious schedule of implementation. 23 We further recommend that such plan be closely 24 coordinated with federal efforts to finalize and implement 25 the Anadromous Fish Restoration Plan, which is required by CAPITOL REPORTERS (916) 923-5447 9350 1 the Central Valley Project Improvement Act, and that 2 contains a similar salmon doubling goal. 3 Further, we recommend that the order commit the 4 Board to workshops, at least, annually to monitor 5 development of such a plan and progress toward attaining 6 the narrative standard and to enable the Board to exercise 7 its reserved jurisdiction as appropriate and to craft 8 supplemental orders as necessary to ensure that this flow 9 dependent objective is achieved in a time certain. 10 We know that there are other methods that are 11 being undertaken to help salmon in the San Joaquin Basin. 12 And we are as hopeful as are the other parties in these 13 proceedings that such efforts will be successful. But hope 14 and even confidence are not sufficient here. The only way 15 to ensure that the narrative standard is actually met is by 16 identifying some comprehensive and complete way, the steps 17 necessary to get there and then to ensure that those steps 18 are taken. 19 To those who say we do not know enough, we 20 certainly agree. That is all the more reason to begin 21 aggressively and to use the information we have to the best 22 advantage. It is not enough to rely on the CalFed process 23 which has adopted a general ecosystem restoration 24 objective, but does not focus on a narrative standard in 25 the Water Quality Control Plan, which remains the CAPITOL REPORTERS (916) 923-5447 9351 1 responsibility of this Board. 2 Second, as other parties have stated before you, a 3 major concern of Save the Bay with the San Joaquin River 4 Agreement is the use of limited public dollars for 5 ecosystem restoration being used to pay for flows, the 6 flows required to meet the water quality standards. 7 To the extent that such payment is appropriate at 8 all, it cannot be made at the expense of ecosystem 9 restoration efforts. Therefore, we recommend that if this 10 Board does adopt some version of the San Joaquin River 11 Agreement that it condition its order on use of federal and 12 state money from sources other than those available for 13 ecosystem restoration efforts. 14 Third, we continue to be concerned about the 15 workability of the San Joaquin River Agreement and the 16 limited availability of any backstop in the event that the 17 agreement does fall apart. As proposed to the Board, the 18 San Joaquin River Agreement would allow any party to the 19 agreement to terminate the agreement if they object to the 20 annual operations plan for any reason. 21 In our view, this would be an extraordinary and 22 probably legally impermissible term for the Board to 23 include in a water right order intended to protect public 24 trust values and ensure reasonable use of water. 25 There is no standard at all in the agreement for CAPITOL REPORTERS (916) 923-5447 9352 1 the condition under which a party could decide that the 2 operation plans for any one year are unacceptable to it 3 and, thus, end the agreement and terminate the VAMP 4 experiment. 5 The parties would then be back in front of the 6 Board for another two years or more wrangling over a new 7 order. This is all the more critical since the agreement 8 provides for a limited backstop to meet the water quality 9 standards if this termination provision is invoked. 10 The value of the VAMP experiment, we have heard 11 over and over again, is that it would provide an equivalent 12 level of protection to the water quality plan and the 13 public with 12 crucial years of data. If that is, indeed, 14 the case the parties should be willing to submit to the 15 operation plan that comes out of the program for the 16 duration of the period at issue. 17 The provision allowing any party to terminate the 18 agreement for any reason that they are unsatisfied about 19 the operations plan clearly puts far too much risk on the 20 public trust resources of the Bay-Delta Estuary and leaves 21 too much to the self-interest of the signatories to the 22 agreement. 23 We recommend that if the Board adopts the San 24 Joaquin River Agreement in some form, that it eliminate 25 this particular provision of the agreement. At the very CAPITOL REPORTERS (916) 923-5447 9353 1 least the Board should craft a rigorous -- a stringent set 2 of standards governing when a party's dissatisfaction with 3 the annual operations plan is sufficient to warrant 4 termination. 5 Finally, the San Joaquin River Agreement employees 6 a very unusual and largely subjective way of triggering the 7 target flows. This will be the subject of Ms. Andrews 8 testimony. The VAMP experiment is only of value to the 9 aquatic resources of this estuary and this Board if it 10 works as advertised to you. 11 We can perceive of no reason why this Board should 12 not adopt an objective measure for determining which target 13 flows are appropriate at which time. We recommend, first, 14 that the Board, therefore, adopt an objective forecast 15 mechanism like the 60/20/20 index. 16 Short of that, we recommend that this Board 17 address this issue institutionally and provide balance and 18 objectivity among those making the decision on the 19 operation plan -- on the annual operation plan. 20 As proposed to the Board, the determination of the 21 existing flow trigger will be made by the signatories to 22 the agreement only, largely the self-interested parties. 23 We recommend that the Board revamp this technical body to 24 be a balanced representation of interests including those 25 who represent the public trust resources of the system. CAPITOL REPORTERS (916) 923-5447 9354 1 That concludes my opening statement and I'm happy to turn 2 to our witnesses. 3 C.O. STUBCHAER: Mary, do you have the names of the 4 witness? 5 THE COURT REPORTER: No. 6 C.O. STUBCHAER: Will the witnesses please state 7 their name and affiliation address for the Reporter. 8 MS. ANDREWS: Elizabeth S. Andrews with Phillip and 9 Williams Associates, Limited. 10 THE COURT REPORTER: Could you spell that, please. 11 MS. ANDREWS: Which word, all -- 12 THE COURT REPORTER: Last name. 13 MS. ANDREWS: Andrews, A-N-D-R-E-W-S. 14 THE COURT REPORTER: Thank you. 15 MR. ROSEKRANS: Spreck Rosekrans of the Environmental 16 Defense Fund. My first name is, S-P-R-E-C-K, my last name 17 is, R-O-S-E-K-R-A-N-S. 18 MR. KEIR: William Keir, K-E-I-R, Keir and 19 Associates. 20 MS. KOEHLER: I think we're going to begin with your 21 testimony, Betty. You have stated your name previously, so 22 let me ask you: Is EDF Exhibit 1 a true and correct copy 23 of your resume? 24 MS. ANDREWS: I don't have EDF Exhibit 1, so I 25 can't -- CAPITOL REPORTERS (916) 923-5447 9355 1 MS. KOEHLER: Okay. Will you go ahead and summarize 2 your credentials for us, then? 3 MS. ANDREWS: Certainly. Greeting, Chairman and 4 Members of the Board. My name is Elizabeth Andrews. And 5 I'm a principal with the consulting firm of Phillip 6 Williams and Associates, Limited, in Marin County, 7 California. 8 I'm a register professional engineer in the State 9 of California. And I have brought experience in the field 10 of water resources management, including engineering and 11 environmental hydrology, hydraulics and water systems 12 management. I'm certified Masters of Science degree in 13 Civil Engineering from the University of California at 14 Davis. 15 And I do understand that a copy of my resume has 16 been previously provided to the Board, I simply don't know 17 how it was identified. 18 MS. KOEHLER: We'll clear that up. Betty, did you 19 prepare the testimony that has been submitted as Save the 20 Bay Exhibit 1? 21 MS. ANDREWS: Assuming that the numbering is correct, 22 yes. I apologize. I simply don't have a copy of things 23 with the numbering on them. 24 MS. KOEHLER: Okay. And in preparing your testimony 25 did you rely in part on reports entitled "From the Sierra CAPITOL REPORTERS (916) 923-5447 9356 1 to the Sea, the Ecological History of the San Francisco Bay 2 Delta Watershed"? 3 MS. ANDREWS: Yes, I did. 4 MS. KOEHLER: And did you have a role in the 5 preparation of this publication? 6 MS. ANDREWS: Myself personally, no. 7 MS. KOEHLER: Could you please summarize your 8 testimony? 9 MS. ANDREWS: Certainly. The issue that I addressed 10 in my testimony was the relationship of the implementation 11 strategies for the San Joaquin River flow objective and 12 their affect on fish, wildlife and other public trust uses. 13 I will initially address the flow alternatives 14 exclusive of the San Joaquin River Agreement and, then, I 15 will discuss issues specifically related to the agreement. 16 When I was first asked to review the flow 17 alternatives with regard to the San Joaquin River flow 18 objective, I read through the descriptions provided in the 19 Draft Environmental Impact Report. And I found myself a 20 bit puzzled as to the purpose of that flow objective, since 21 the only commonality of the alternatives that I found was 22 that they were generally able to meet the specific numeric 23 flow objective at Vernalis. 24 And it was really clear to me that to evaluate the 25 merit of the alternatives in terms of meeting the CAPITOL REPORTERS (916) 923-5447 9357 1 objectives of the plan overall, it was important to 2 understand the underlying intention of that numeric 3 objective for flow at Vernalis. 4 After all, the flow objective is not an end in and 5 of itself. The intent of the flow objective really has to 6 be the basis for evaluating the relative merit of the 7 alternative methods of meeting it. 8 After some searching in the Draft Environmental 9 Impact Report I found this description of the key goal in 10 implementing the 1995 Water Quality Control Plan. I quote, 11 (Reading): 12 "To provide comprehensive multispecies 13 protection for the public trust resources of the 14 Bay/Delta Estuary." 15 A further elaboration of this goal with respect to 16 the San Joaquin River is provided in the text of the final 17 Water Quality Control Plan itself. Again, quoting, 18 (Reading): 19 "San Joaquin River flow objectives are included 20 to provide attraction and transport flows and 21 suitable habitat for various life stages of 22 aquatic organisms including Delta smelt and 23 chinook salmon." 24 I urge the Board to recall your specific purpose 25 and intention in assigning a San Joaquin River flow CAPITOL REPORTERS (916) 923-5447 9358 1 objective as you evaluate the appropriate method of 2 implementing that objective. Let that intention guide your 3 decision. The flow objective is not an end in and of 4 itself, but a proxy for very broad ecological enhancement 5 goals for the waterways of the San Joaquin Basin and the 6 Delta system to which it is intrinsically linked. 7 I'm going to talk for just a couple of minutes 8 about the key role that a river flows regime, or hydrograph 9 plays in ecological function. There are five major aspects 10 of flow that are of key ecological importance. 11 The magnitude of monthly flows, the magnitude and 12 duration of annual extreme water conditions, the timing of 13 annual extreme water conditions, the rate and frequency of 14 water condition changes and the frequency and duration of 15 high and low pulses. The Vernalis flow objective appears 16 to be intended to partially or fully address several of 17 these ecological aspects of a flow hydrograph. 18 Some of the -- 19 MR. BIRMINGHAM: Pardon me. 20 C.O. STUBCHAER: Mr. Birmingham. 21 MR. BIRMINGHAM: I wonder if the witness could be 22 asked to summarize the written testimony that was submitted 23 as Save the Bay Exhibit 1. The testimony that's being 24 provided is related to what is in the document, but it 25 actually goes beyond the scope of the written submission. CAPITOL REPORTERS (916) 923-5447 9359 1 C.O. STUBCHAER: Ms. Koehler. 2 MS. KOEHLER: I'm not sure I agree. The question to 3 Betty was that she summarize the exhibit that was submitted 4 as Save the Bay Exhibit 1. I believe that is what she is 5 doing. 6 MS. ANDREWS: I am providing, perhaps, a bit more 7 detail to flush out the material that was provided in my 8 written testimony. 9 MR. O'LAUGHLIN: Well, that's -- 10 C.O. STUBCHAER: Just a minute. Just a minute. 11 Were you finished? 12 MS. ANDREWS: Yes, I was. Thank you. 13 C.O. STUBCHAER: Mr. O'Laughlin? 14 MR. O'LAUGHLIN: Thank you, Mr. Chairman. That's the 15 very problem with the testimony is if she wanted to flush 16 that out in her testimony, we should have seen it in the 17 document. The last five things that she's talked about in 18 regards to flow and its impacts on a river system are 19 nowhere mentioned in her testimony in Save the Bay Exhibit 20 Number 1. So she has gone beyond the scope of the 21 testimony and should be limited to a summary of her written 22 testimony. 23 C.O. STUBCHAER: Okay. Yes. 24 MR. GODWIN: I was going to say what Mr. O'Laughlin 25 just said. CAPITOL REPORTERS (916) 923-5447 9360 1 C.O. STUBCHAER: Okay. Thank you. I'll state, 2 again, and we have stated before: The purpose of the oral 3 testimony is to summarize the written testimony. One 4 should not go beyond the scope of the written testimony. 5 And we've had this problem earlier in the 6 proceeding, you may not have been here. And so, please, 7 confine the testimony to within the scope of the written 8 submittals which have been distributed to the parties. 9 Mr. Nomellini? 10 MR. NOMELLINI: You used the term "scope." We argued 11 this before and it's the scope, not necessarily every exact 12 word in the testimony, that we seek to define the boundary. 13 And it seems to me that explanatory statements related to 14 the subject matter that's clearly defined in the testimony 15 would be appropriate. 16 Is that what the Chair is ruling? 17 C.O. STUBCHAER: The ruling is that one should not 18 amplify on the written testimony, because it's unfair to 19 the other parties, it does not enable them to prepare 20 cross-examination in advance. 21 MS. KOEHLER: And, Mr. Chairman? 22 C.O. STUBCHAER: Yes. 23 MS. KOEHLER: I certainly concur on that. There was 24 no intention on our part and I know on Ms. Andrews' part to 25 amplify unfairly beyond the testimony. We -- I believe she CAPITOL REPORTERS (916) 923-5447 9361 1 was attempting to simply summarize what was there -- 2 C.O. STUBCHAER: And then also -- 3 MS. KOEHLER: -- in a useful way. 4 C.O. STUBCHAER: And also I didn't mention when you 5 started, but it's in the notice of proceeding, I know you 6 know that there's 20 minutes allocated for the direct 7 testimony. 8 Ms. Forster. 9 MEMBER FORSTER: Well -- 10 C.O. STUBCHAER: The clock is stopped while we're 11 having this discussion. 12 MS. KOEHLER: Thank you. 13 MEMBER FORSTER: I have a recommendation. I have 14 gone through her testimony. Some of the things she's 15 saying I do understand how she's trying to consolidate it. 16 Maybe we could just start over the 20 minutes and 17 she could try to go more directly to this so that she isn't 18 penalized. I know you're trying to make it easier for us. 19 MS. ANDREWS: Correct. Thank you. 20 MEMBER FORSTER: But I think what the Chairman is 21 saying is that when the people cross you, they like to have 22 it exactly in front of them so that they're directly 23 relating to what you said. And you're giving a fine 24 summary, but it makes it hard for them. 25 So maybe the thing that the Chairman wants you to CAPITOL REPORTERS (916) 923-5447 9362 1 do is go back to right what you have on the page. Does 2 that -- 3 MS. KOEHLER: We definitely will not be looking at 4 the 20 minutes if you just -- 5 C.O. STUBCHAER: Well, no. We do not want the 6 written testimony read into the record. And if you are 7 truly summarizing, not going beyond the scope, that's fine. 8 MS. KOEHLER: Thank you. 9 C.O. STUBCHAER: But I gather there was some 10 amplification. 11 Mr. Birmingham. 12 MR. BIRMINGHAM: In fact, that was my concern, 13 Mr. Stubchaer. The witness has indicated that she was 14 providing detail to what was in the written submission. 15 What I'm asking for is that she summarize what was in 16 writing and if there are other details that she thinks need 17 to be made, I'm sure she'll have that opportunity during 18 the cross-examination or the redirect. 19 C.O. STUBCHAER: Ms. Koehler, Ms. Forster made a 20 suggestion. Would you like to take the lunch break now and 21 then go over -- 22 MS. KOEHLER: That would be great. 23 C.O. STUBCHAER: -- and then start over? 24 MS. KOEHLER: That would be great. 25 C.O. STUBCHAER: Okay. That's what we will do. CAPITOL REPORTERS (916) 923-5447 9363 1 We'll take a lunch break until about 1:00. 2 (Luncheon recess.) 3 ---oOo--- 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 9364 1 TUESDAY, JANUARY 26, 1999, 1:00 P.M. 2 SACRAMENTO, CALIFORNIA 3 ---oOo--- 4 C.O. STUBCHAER: Good afternoon. We'll reconvene. 5 Ms. Koehler, good afternoon. 6 MS. KOEHLER: Good afternoon. Thank you. 7 MR. BIRMINGHAM: Mr. Stubchaer, before we get 8 started, may I raise a procedural point? 9 C.O. STUBCHAER: Please, go ahead. 10 MR. BIRMINGHAM: This morning when Mr. Rosekrans 11 prepared and sat down at the table I was a little bit taken 12 back, because I had not received any written testimony for 13 Mr. Rosekrans during this -- for this phase of the 14 proceeding. 15 During the lunch recess I went back to my office 16 and looked through my material and I was unable to discover 17 any. I now asked Ms. Koehler if there was written 18 testimony submitted by Mr. Rosekrans and she's informed me 19 that there isn't. 20 MS. KOEHLER: That's not exactly correct. I informed 21 you that our Exhibit 7 was prepared by Mr. Rosekrans -- 22 C.O. STUBCHAER: We can't hear, Ms. Koehler. 23 MS. KOEHLER: What I told Mr. Birmingham is that Save 24 the Bay 7 was prepared by Mr. Rosekrans. And he's here 25 strictly to authenticate that exhibit so that it may be CAPITOL REPORTERS (916) 923-5447 9365 1 entered into evidence. 2 C.O. STUBCHAER: Mr. Birmingham. 3 MR. BIRMINGHAM: Again, my understanding of the 4 procedure that is followed is that exhibits need to be 5 referenced in written testimony. And that the purpose for 6 that is to allow the parties to prepare to cross-examine on 7 the testimony and the other evidence. 8 It as much as there is no written testimony on 9 which to base Mr. Rosekrans' exhibits, I think that his 10 providing that testimony now in oral form puts the parties 11 at a disadvantage and we would object. 12 C.O. STUBCHAER: Ms. Koehler. 13 MS. KOEHLER: Mr. Rosekrans is not providing 14 testimony. He's authenticating an exhibit. As I read the 15 hearing notice we are entitled to present exhibits as long 16 as we can authenticate them and we can do that. We believe 17 the exhibits are -- the underlining points of the exhibits 18 are referenced in both Ms. Andrews' and Mr. Keir's 19 testimony. And we believe that the graphs speak for 20 themselves and that's why we didn't present any written 21 testimony. 22 It's not my understanding that we need to present 23 written -- like I said, the graphs are written. They're 24 there, the data is there. And we have produced 25 Mr. Rosekrans today so he can authenticate that they were CAPITOL REPORTERS (916) 923-5447 9366 1 produced and provide the Board with the source of the data 2 therein. The graphs, as far as I understand it are 3 perfectly appropriate as exhibits within the hearing rules. 4 C.O. STUBCHAER: Mr. Birmingham, did you receive the 5 graphs ahead of time? 6 MR. BIRMINGHAM: I received the graphs, but the 7 graphs are marked as exhibits. There is no reference in 8 the written testimony of the other witnesses to these 9 exhibits. And so there was -- in the material that was 10 circulated to the parties prior to the hearing, there was 11 nothing to indicate that Mr. Rosekrans would appear and 12 offer testimony to authenticate the exhibits. 13 C.O. STUBCHAER: The exhibits, we have a note saying, 14 "Prepared by Spreck Rosekrans, EDF" on them. 15 MR. BIRMINGHAM: But there is no indication that 16 these exhibits are referred to in the other testimony 17 and -- 18 MS. KOEHLER: I have to disagree with that. The 19 testimony in both the case of Ms. Andrews and Mr. Keir 20 refers to points that are made in those exhibits. I'm 21 aware of no hearing rule that requires us to expressly 22 connect the dots in the way that Mr. Birmingham is 23 suggesting. 24 We were under a very tight deadline in September. 25 We did our best to get this information before the Board CAPITOL REPORTERS (916) 923-5447 9367 1 and the parties in a timely manner. Mr. Rosekrans is not 2 going to testify as to the meaning, or the content of those 3 exhibits in any way. He's here, as I said several times, 4 simply to authenticate them so that they can be submitted 5 into evidence. And, perhaps, if we were allowed to proceed 6 rather than arguing about this now, Mr. Birmingham may be 7 satisfied by the presentation we have to make. 8 C.O. STUBCHAER: Mr. O'Laughlin. 9 MR. O'LAUGHLIN: May I be heard on this point? I 10 have gone through the testimony of the two witnesses, 11 Ms. Andrews and Mr. Keir, in fact, Mr. Birmingham, as is 12 typical, beat me to the punch. 13 There is nothing within either witnesses' 14 testimony that refers to Exhibit Number 7. Exhibit Number 15 7 stands alone. There is nothing to be drawn from Exhibit 16 Number 7 based on the testimony of either witness nor do 17 they refer to it, rely on it, or anything else. 18 So I would like that -- I was going to move to 19 exclude Exhibit Number 7. And I would move to exclude the 20 testimony of anything of Mr. Rosekrans' since he did not 21 prepare a written summary of the testimony that he 22 presented which was required under the rules. Every other 23 witness here has presented a written summary of any 24 testimony that has been presented. 25 C.O. STUBCHAER: Ms. Koehler, do you intend to have CAPITOL REPORTERS (916) 923-5447 9368 1 Mr. Rosekrans testify other than to authenticate the 2 exhibits? 3 MS. KOEHLER: No. I intend -- Mr. Rosekrans is here 4 strictly to authenticate those exhibits. Any number of 5 parties in this case have presented exhibits that have not 6 been the subject of specific testimony. And that's what 7 we've done here. 8 We produced Mr. Rosekrans as a courtesy since, you 9 know, these graphs were only identified as being produced 10 by him. He's not presenting testimony about those 11 exhibits. And I must disagree with the representations 12 that have been made that there's no reference to the 13 content of these graphs in the testimony. 14 To the contrary, both Mr. Keir and Ms. Andrews 15 refer several times to the comparative AFRP flows to VAMP 16 flows and that is what Mr. Rosekrans has prepared for this 17 Board. 18 C.O. STUBCHAER: All right. Let's go ahead and hear 19 the testimony. When it comes time to accept the exhibits, 20 it will be an appropriate time to -- 21 MR. O'LAUGHLIN: Well, Mr. Chairman, if I may, I 22 disagree with that because that is not giving us the 23 opportunity to prepare and cross-examine Mr. Rosekrans and 24 it goes against the very notice that was sent out by this 25 Board. CAPITOL REPORTERS (916) 923-5447 9369 1 MS. KOEHLER: They've had -- 2 MR. O'LAUGHLIN: Wait. Wait, don't interrupt, 3 please. 4 The problem is this: If he's offering -- he can't 5 say that I'm offering Exhibit Number 7 for authentication 6 only, because then in and of itself Exhibit Number 7 7 becomes evidence. So he is saying Exhibit Number 7 stands 8 for this. And in so doing, he is testifying through that 9 document. 10 And not only that, and I'm sure Mr. Birmingham 11 will pick up on this point, the whole point of submitting 12 written testimony ahead of time was to give the parties an 13 opportunity to fully prepare and prepare for 14 cross-examination of the witnesses. There has been no 15 other witness that has been presented at this hearing, as 16 long as I've been here, that has come in solely to 17 authenticate a document and not testify. 18 MR. BIRMINGHAM: Mr. Stubchaer, I'd like to refer to 19 the notice of this hearing and the procedures that are 20 described in enclosure one. It says, 21 (Reading): 22 "The following procedural requirements will 23 apply and will be strictly enforced, and will be 24 strictly enforced for purposes of the above 25 mentioned hearing, the Bay-Delta Water Rights CAPITOL REPORTERS (916) 923-5447 9370 1 Hearing. 2 Number 3, Written Testimony. Each party 3 proposing to present testimony on factual or 4 other evidentiary matters at the hearing shall, 5 "shall" submit testimony in writing. 6 Each piece of written testimony is and shall be 7 treated as an exhibit, (see item four below )and 8 must be submitted with the other exhibits. Oral 9 testimony that goes beyond the scope of the 10 written testimony may be excluded." 11 Now, in this situation Mr. Rosekrans will have to 12 offer testimony even if it's merely to authenticate the 13 exhibits. He's going to have to tell us that he prepared 14 them. That's testimony. He'll have to tell us from where 15 the data came that he used to prepare them. That's 16 testimony. It is evidence. 17 And this notice is -- we all were operating under 18 the same deadlines that Ms. Koehler was operating under. 19 And I appreciate the difficulty sometimes in presenting the 20 written testimony, but the notice is unambiguous and it 21 says that these are the procedures that are to be followed. 22 MS. KOEHLER: We agree with Mr. Birmingham's 23 elucidation of the notice. And we agree that the rules are 24 stated there very clear. It's also the case that we have 25 complied with those. These graphs were presented as an CAPITOL REPORTERS (916) 923-5447 9371 1 exhibit, they were presented with the rest of these 2 exhibits. 3 These parties have had notice of these exhibits 4 since September. They were noticed that Spreck prepared 5 the exhibits. They were noticed where the data came from 6 because that's on the exhibits. There is simply no lack of 7 notice here. And if there's any problem with 8 cross-examination it is not for lack of notice. 9 C.O. STUBCHAER: All right. Mr. Jackson? 10 MR. JACKSON: Yes, sir, on the narrow question of 11 whether or not the exhibits support the testimony, I would 12 point out that Pages 2 through the first part of 5 -- 13 C.O. STUBCHAER: Which -- 14 MR. JACKSON: -- of Elizabeth Andrews' testimony are 15 comparing unimpaired flows with changes that humans have 16 caused in the drainage, which is exactly what these graphs 17 are. And I don't see any problem with the exhibits. 18 C.O. STUBCHAER: Thank you, Mr. Jackson. 19 We're going to go off the record. We'll have a 20 consultation, we'll be back briefly. 21 (Off the record from 1:11 p.m. to 1:15 p.m.) 22 C.O. STUBCHAER: Back on the record. I'm going to 23 permit the testimony to proceed. The authentication of the 24 exhibits and Exhibit 7 may be allowed. The graphs were 25 distributed. They're all graphs. They were distributed to CAPITOL REPORTERS (916) 923-5447 9372 1 the parties. The author is identified on there. And I 2 don't think that our rules require a narrative to accompany 3 the exhibits, though it may be unusual, it may be just the 4 first time that it has happened. 5 But at the conclusion of the direct testimony the 6 parties will have an opportunity to object. They will have 7 an opportunity to cross-examine. I don't think there will 8 be any direct testimony on the graphs other than their 9 authentication. 10 MR. BIRMINGHAM: Mr. Stubchaer, may I ask for an 11 instruction? I understand and respect the Chair's ruling 12 on my objection, but so that we don't get into this 13 problem, may I ask for an instruction that the only 14 testimony that is going to come from Mr. Rosekrans 15 concerning Exhibit 7 will relate specifically to 16 information on the documents? 17 For instance, Ms. Koehler has stated that Exhibit 18 7 states where the data on which they were based comes 19 from. My review of Exhibit 7 indicates that it doesn't 20 indicate where the data comes from. So if she asks him, 21 "Mr. Rosekrans, where did you obtain the data on which you 22 base these exhibits, these graphs?" that would go beyond 23 the scope of what was submitted in writing. And I will 24 anticipate that question and ask for an instruction that it 25 not be permitted. CAPITOL REPORTERS (916) 923-5447 9373 1 C.O. STUBCHAER: You may object when Ms. Koehler asks 2 the witness to authenticate his exhibits. 3 MS. KOEHLER: Thank you, Mr. Chairman. 4 C.O. STUBCHAER: Excuse me, just a moment. 5 Ms. Koehler, do you intend to ask Mr. Rosekrans 6 anything more than did he prepare the graphs? 7 MS. KOEHLER: I was going to ask him to further 8 identify -- I disagree with Mr. Birmingham's 9 characterization of the exhibits. I think they do identify 10 the source of the data, but we thought it would be -- 11 MR. KEIR: Appropriate. 12 MS. KOEHLER: -- appropriate -- thank you -- to 13 provide specific references to data sources to the extent 14 they were not clear to the Board. So I was intending to 15 ask Mr. Rosekrans to identify with specificity the sources 16 that he used, as I said, are all identified in the margins 17 of the graphs for purposes of the record. 18 C.O. STUBCHAER: If they were on the written graphs, 19 I think that would be permissible. But if they were not, 20 that would be beyond the scope. 21 MS. KOEHLER: Okay. 22 C.O. STUBCHAER: And I want to repeat, again, the 23 parties can object to the acceptance of these exhibits upon 24 the conclusion of cross-examination. They may also 25 cross-examine, if they so choose, Mr. Rosekrans during the CAPITOL REPORTERS (916) 923-5447 9374 1 appropriate time period. 2 Please, proceed. 3 ---oOo--- 4 DIRECT TESTIMONY OF SAVE THE SAN FRANCISCO BAY ASSOCIATION 5 BY PANEL 6 BY CYNTHIA KOEHLER 7 MS. KOEHLER: Thank you, Mr. Chairman. To 8 accommodate Mr. Keir who must be absent from the hearing 9 room briefly this afternoon instead of beginning with 10 Ms. Andrews' testimony I'm going to ask Mr. Keir to 11 summarize his testimony and then he will be absent briefly, 12 but then he will be available for cross-examination shortly 13 after 2 o'clock this afternoon is my understanding. 14 MR. KEIR: That's correct. 15 C.O. STUBCHAER: Good afternoon, Mr. Keir. Proceed. 16 MR. KEIR: Thank you. 17 MS. KOEHLER: And I believe, Bill, you've been 18 previously sworn; is that right? 19 MR. KEIR: This morning. 20 MS. KOEHLER: Mr. Keir, is Save the Bay Exhibit 4 a 21 true and correct copy of your resume? 22 MR. KEIR: Yes, it is. 23 MS. KOEHLER: Can you very briefly summarize your 24 qualifications for us. 25 MR. KEIR: I'm a registered fishery scientist and I CAPITOL REPORTERS (916) 923-5447 9375 1 specialize in salmon watershed and salmon population 2 restoration. 3 MS. KOEHLER: Thank you. Did you prepare the 4 testimony that has been submitted to the Board as Save the 5 Bay Exhibit Number 3? 6 MR. KEIR: I did. 7 MS. KOEHLER: And in preparing your testimony did you 8 rely in part on Save the Bay Exhibit Number 5, a document 9 San Joaquin -- entitled "The Status of San Joaquin 10 Drainage, Chinook Salmon Stocks, Habitat Conditions and 11 Natural Production Factors," a document previously 12 submitted to this Board in connection with prior Bay-Delta 13 Water Rights hearings and dated July 1987? 14 MR. KEIR: I did. 15 MS. KOEHLER: Could you, please, summarize your 16 testimony, Mr. Keir. 17 MR. KEIR: Okay. It won't take very long. My 18 testimony really reaches back to Fish and Game Exhibit 19 Number 15 and brings back to this Board's attention a 20 couple of important biological considerations as they look 21 for ways of providing the flows necessary to double salmon 22 population in the San Joaquin River Basin. 23 And those two considerations are simply this: 24 That the chinook salmon in the Central Valley streams 25 outmigrate over a very long period beginning in January. CAPITOL REPORTERS (916) 923-5447 9376 1 In the case of the San Joaquin River, extending through 2 June rather than that very brief period of time that we 3 have tried to concoct water operations for the purpose of 4 assisting salmon outmigration typically from mid April 5 until mid May. So I simply, again, want to make clear and 6 the evidence is clear that salmon begin to outmigrate in 7 January as fry. And they continue their migrations through 8 June as smolts. 9 The second biological consideration I wanted to 10 recall for you from that earlier Fish and Game exhibit is 11 that flows at Vernalis in most months of May are so low 12 that temperatures rise to levels that are stressful for 13 juvenile salmon. And if a great deal of the salmon are 14 outmigrating from San Joaquin River tributaries in the main 15 stem, San Joaquin River past Vernalis during May and 16 temperatures are adverse there, they are going to be in a 17 state of shock and they are going to be subject to various 18 mortality factors in addition to the shock itself. 19 So if the purpose -- the Board's purpose is to 20 find fall relationships that will obtain its narrative 21 standard with doubling salmon in the San Joaquin River, 22 they're going to have to pay very close attention to flow 23 levels in the lower river during those critical spring 24 periods. 25 And I have looked at the five alternative flow CAPITOL REPORTERS (916) 923-5447 9377 1 scenarios that the Board reviewed after its draft 1995 2 Water Quality Control Plan and it is my opinion, my 3 professional opinion that only alternative five comes close 4 to providing the flow temperature relationships necessary 5 to juvenile salmon survival and -- growth and survival. 6 And that the VAMP, the Vernalis Adaptive 7 Management Program, as a stand alone program, does not come 8 close to providing the flows necessary for successful smolt 9 emigration. And that really is the gist of my testimony. 10 I would simply sum by saying that the -- that 11 alternative five in that it comes very close to the 1995 12 working paper flow level, that comes the closest is one 13 that I would prefer where I asked to set a flow that could 14 restore salmon production to the San Joaquin basin. 15 And I just want to note that since the U.S. Fish 16 and Wildlife Service has released its 1995 working papers, 17 there's been a lot of confusion about the quality of those 18 flow recommendations. And, in fact, those represented best 19 science then and they represent as far as I know the best 20 science now. So, again, the VAMP doesn't cut it by itself. 21 Alternative five is the closest thing I know to flows that 22 would restore salmon in the San Joaquin River Basin. And 23 that is my testimony. 24 C.O. STUBCHAER: Thank you. 25 MS. KOEHLER: Thank you, Mr. Keir. We will turn now CAPITOL REPORTERS (916) 923-5447 9378 1 to Ms. Andrews. The Board had asked us to begin again with 2 Ms. Andrews. Do you need me to run through my initial 3 series of questions with her, or just ask her to summarize 4 her testimony, would that be sufficient? 5 C.O. STUBCHAER: Yes, that would be sufficient. 6 MS. KOEHLER: Okay. Ms. Andrews. 7 MS. ANDREWS: Thank you. Let me know if the mic is 8 not picking me up well. Once again, the issue addressed in 9 my testimony, which I'm summarizing at this point today, is 10 the relationship of the implementation strategies for the 11 San Joaquin River flow objective and their effect on fish 12 wildlife and other public trust uses. 13 I will initially address the flow alternatives 14 exclusive of the San Joaquin River Agreement and then I 15 will discuss some issues specifically related to the 16 agreement. As I pointed out earlier, in looking at the 17 ability of the different alternatives to meet the intention 18 of the San Joaquin River flow objective it's important to 19 understand the underlying intention of the Board in setting 20 that numeric objective. 21 And there are two quotes which I will reread, one 22 from the Draft Environmental Impact Report, which explains 23 that a key goal in implementing the 1995 Water Quality 24 Control Plan was to provide comprehensive multispecies 25 protection for the public trust resources of the Bay/Delta CAPITOL REPORTERS (916) 923-5447 9379 1 estuary. The final Water Quality Control Plan provides 2 further elaboration of this goal with respect to the San 3 Joaquin River itself -- 4 MR. BIRMINGHAM: Objection. 5 C.O. STUBCHAER: Mr. Birmingham. 6 MR. BIRMINGHAM: Again, we're going beyond the scope 7 of the written testimony. 8 MS. KOEHLER: Mr. Chairman, I believe this is a 9 direct quote from Ms. Andrews' testimony. 10 MS. ANDREWS: Mr. Birmingham is correct, it is not. 11 MS. KOEHLER: Oh, I'm sorry. I'm sorry. 12 C.O. STUBCHAER: Could you point out which testimony 13 is beyond the scope? 14 MR. BIRMINGHAM: She's about to read a quote from the 15 1995 Water Quality Control Plan. She read it earlier this 16 morning. It is not the -- the quotation is not referred to 17 in her written testimony, Save the Bay Exhibit 1. And, 18 again, my understanding is that she's going to summarize 19 what is written in Save the Bay Exhibit 1. 20 C.O. STUBCHAER: Yes. The purpose of your oral 21 testimony is to summarize your written testimony. I 22 recognize that the Water Quality Control Plan is in the 23 record. And as we had much discussion about it, but the 24 direct testimony is supposed to be confined to the written 25 testimony previously submitted. CAPITOL REPORTERS (916) 923-5447 9380 1 MS. ANDREWS: Thank you. I will do my best to stick 2 to that. 3 Hydrographs on rivers or their flow regime play a 4 number of different roles in terms of serving ecosystem 5 function. And I have summarized those in my testimony as, 6 one, hydrologic need of the full range of species in the 7 ecosystem food web. Secondly, the system-wide role of 8 hydrologic processes in shaping channel form in performing 9 ecosystem function such as food web support. And, three, 10 the full range of temporal variability and hydrologic 11 regimes. 12 It's really that second aspect of the hydrograph 13 that I think is pertinent to the question of how the 14 Vernalis flow objective is implemented. Hydrologic 15 processes throughout the San Joaquin River Basin drive the 16 shaping of the channel form. They create the shape of the 17 channel itself. They create the instream habitat. They 18 create the flood planes adjoining to it. And they also 19 create the ecosystems which adjoin that river channel. 20 Secondly, and this one is less well recognized but 21 very important to ecosystem processes, those channel flows 22 support the movement of material and nutrients throughout 23 the entire drainage system. So what you have when you're 24 looking at a flood condition in a river basin is a whole 25 system of channels all functioning in the same time frame CAPITOL REPORTERS (916) 923-5447 9381 1 to create that pulse of material through the system. 2 Now, on the San Joaquin we have done a very good 3 job of changing and modifying that system. In the course 4 of our history on the San Joaquin basin we have diverted 5 and regulated an enormous amount of that river's flow 6 radically changing the shape of the annual hydrograph on 7 that river and that's really changed the interaction 8 between the river system and the flow hydrograph. 9 And I know that in terms of trying to create a 10 certain level of ecological enhancement on the San Joaquin 11 basin we cannot recreate what existed pre-development, 12 because there's a certain amount of demand that we have 13 placed on that river that's inescapable. But in order to 14 create some level of ecological enhancement, we need to 15 look at what the key aspects of the flow regime on that 16 river are and try to recreate those. 17 And I believe that the Vernalis flow objective is 18 an attempt to basically simulate a fairly small scale flood 19 event in the San Joaquin basin and thereby provide some of 20 those ecosystem benefits that are attributed to that sort 21 of assisting flood event. 22 Our goal, therefore, in looking at alternatives to 23 meet the Vernalis flow objective should not be what 24 alternative shall we choose that will create a certain 25 amount of flow at Vernalis, but what method of reaching CAPITOL REPORTERS (916) 923-5447 9382 1 that objective will really create the level of ecosystem 2 enhancement throughout the basin that we seek as our 3 underlying intention for this numeric objective. 4 For example, many of the alternatives considered 5 by this Board would rely very heavily on one or two 6 tributary streams to the San Joaquin. So you might have a 7 condition in which you meet the numeric objective at 8 Vernalis, but if you are supplying all of that flow by 9 releases from New Melones then you're really only sending a 10 flood pulse down the Stanislaus River affecting the San 11 Joaquin River downstream of Vernalis and having no benefit 12 to any portion of the San Joaquin basin upstream of that 13 point. 14 If the goal truly is to develop the kind of broad 15 scale ecological enhancement in the San Joaquin basin, we 16 need to look at the whole system and how can we make the 17 whole system operate in a way to sustain these critical 18 ecosystem functions. 19 Alternative five of those alternatives considered 20 is the only one of the alternatives that would really call 21 for contributions from each of the contributing watersheds 22 to meet the numeric objective at Vernalis. Alternative 23 five, therefore, comes in a -- out of the alternatives 24 considered, comes the closest to sort of recreating what 25 might be sort of a muted small flood on the San Joaquin CAPITOL REPORTERS (916) 923-5447 9383 1 River Basin. 2 Alternative five has an advantage as well. If we 3 look at it strictly from the measures that were used in the 4 EIR, Draft EIR to evaluate how well they would benefit 5 fisheries, the Draft Environmental Impact Report compared 6 the expected flows under the alternatives to the 1995 7 Anadromous Fish Restoration Plan working paper and it found 8 that alternative five overall did the best job of reaching 9 towards those standards. 10 I must point out that even alternative five in 11 years that were dryer than wet years had a shortfall of at 12 least 50 percent of meeting those working papers goals. 13 It, certainly, does not go the whole way but it does do a 14 better job of it than the other alternatives that were 15 presented. I'm going to speak now briefly about the 16 Vernalis Adaptive Management Program and the San Joaquin 17 River Agreement in which it's contained and described. 18 First of all, the agreement has a characteristic 19 which is shared by several of the other alternatives in 20 terms of its approach to treating the rivers basically as 21 canal systems. Looking to meet a certain numeric objective 22 at Vernalis the question is not what rivers would 23 ecologically benefit from having a given amount of flow to 24 help meet that objective, but what rivers we have water 25 available on? Okay. How we're going to use those to meet CAPITOL REPORTERS (916) 923-5447 9384 1 the San Joaquin River objective. 2 It is not clear that the method of choosing what 3 tributaries that flow is delivered down, nor the amount of 4 water that is delivered down each of those tributaries has 5 any relationship to ecological enhancement goals on the 6 tributaries. 7 Secondly, in reviewing the proposal in the 8 agreement for establishing the target flows, I found myself 9 quite disturbed by the use of a trigger that was based on a 10 forecast of, quote, "existing flow conditions" that was 11 established by the hydrology group of the San Joaquin 12 Technical Committee. 13 It's my experience that whenever there is a 14 measure subjectivity in developing a forecast, there's a 15 tendency, whether consciously or subconsciously, of the 16 forecaster to account for the fact that the future they 17 know will happen will be there. It's very difficult to say 18 what you would have done in a circumstance when you know 19 perfectly well that what you would have done is irrelevant. 20 But what will happen is going to be influenced by 21 the target flow that's established under the experiment of 22 VAMP. And I suggest that it would be to the advantage of 23 all the parties that a less subjective measure, a less 24 subjective trigger is used to establish the target flows 25 than a forecast of existing flows. CAPITOL REPORTERS (916) 923-5447 9385 1 One of the triggers that has been suggested by 2 other -- others in this proceeding is use of the San 3 Joaquin River Index, the 60/20/20 index which was developed 4 by DWR and not under the direct control of the interested 5 parties. That might be one approach, there may be others. 6 But I do suggest that it would be very desirable to 7 eliminate as much subjectivity as possible in establishing 8 the target flows under VAMP. That's the conclusion of my 9 testimony. Thank you. 10 C.O. STUBCHAER: Thank you. 11 MS. KOEHLER: Mr. Rosekrans -- do you need 12 Mr. Rosekrans to state his name again for the record? 13 C.O. STUBCHAER: I'm sorry, I couldn't hear you. 14 MS. KOEHLER: Do you need Mr. Rosekrans to state his 15 name again for the record? 16 C.O. STUBCHAER: No. 17 MS. KOEHLER: Mr. Rosekrans, is EDF a correct copy of 18 your resume? 19 MR. ROSEKRANS: Yes. 20 MS. KOEHLER: And could you briefly summarize your 21 qualifications. 22 MR. ROSEKRANS: I've worked in -- 23 MR. BIRMINGHAM: Excuse me. Pardon me. 24 C.O. STUBCHAER: Mr. Birmingham. 25 MR. BIRMINGHAM: Again, I'm going to voice the same CAPITOL REPORTERS (916) 923-5447 9386 1 objection that I voiced earlier. The document that is now 2 the subject of examination, through which Ms. Koehler is 3 going to elicit testimony, is a document that was not 4 submitted to the State Board by the party calling the 5 witness. 6 There is no way we would have notice -- we would 7 have had notice that we should be prepared today because 8 Ms. Koehler was going to call Mr. Rosekrans to be prepared 9 to cross-examine on this document. This is an EDF exhibit. 10 It's in evidence as a result of Phase II. But she is now 11 trying to elicit testimony which under the Board's notice 12 was supposed to have been submitted in writing and I just 13 raise the same objection -- 14 MS. KOEHLER: Mr. Chairman, if I may speak to this. 15 There's some confusion here. I simply asked Mr. Rosekrans 16 about his resume, which was submitted as an EDF exhibit 17 and, therefore, it's appropriate for him to summarize his 18 qualifications, that's before the Board. 19 As far as notice of Mr. Rosekrans appearing as a 20 Save the Bay witness, first Mr. Rosekrans is not our 21 witness. He's appropriately called by Save the Bay as a 22 witness -- 23 THE COURT REPORTER: Slow down. 24 MS. KOEHLER: -- regardless of his affiliation with 25 the Environmental Defense Fund. Number two, Mr. Birmingham CAPITOL REPORTERS (916) 923-5447 9387 1 and all the other parties have had notice that 2 Mr. Rosekrans prepared Save the Bay Exhibit 7, not EDF 3 Exhibit 7. Save the Bay Exhibit 7, which is the subject of 4 the cross-examination that -- I'm sorry, the direct 5 examination that I'm attempting to get to. 6 EDF Exhibit 8, I'm not sure if that is the source 7 of the confusion here is an exhibit that EDF submitted I 8 believe a year ago, which is Mr. Rosekrans' resume. I was 9 simply asking him to identify that for purposes of the 10 record. 11 C.O. STUBCHAER: I don't have the resume. 12 C.O. BROWN: I don't have it either. 13 C.O. STUBCHAER: Mr. Godwin, do you have it? 14 MR. BIRMINGHAM: Mr. Stubchaer, my understanding of 15 the Hear Officer's earlier ruling was that Ms. Koehler was 16 going to be permitted to ask this witness questions to 17 authenticate, questions that relate to things within the 18 four corners of the document, questions to authenticate 19 Save the Bay Exhibit 7. 20 MS. KOEHLER: I will be happy to do that if -- 21 C.O. STUBCHAER: And it seems to me that if 22 Mr. Rosekrans' qualifications are already in the record, 23 they don't need to be gone into again. 24 MS. KOEHLER: That's fine. I was simply asking for a 25 matter of the record, like with all the other witnesses, to CAPITOL REPORTERS (916) 923-5447 9388 1 summarize their qualifications. I'm happy to pass on that 2 question. 3 C.O. STUBCHAER: Perhaps, you could ask him if his 4 qualifications are as testified to in Phase II or something 5 like that, I don't know. 6 MS. KOEHLER: I'm a little confused. I'm unaware of 7 any such rule that precludes a witness from summarizing 8 their qualifications when their qualifications are an 9 appropriate exhibit. 10 C.O. STUBCHAER: Normally they go along with the rest 11 of the testimony. The Board receives them together with -- 12 all the parties receive them. 13 Ms. Leidigh. 14 MS. LEIDIGH: I just wanted to voice the opinion that 15 given Mr. Rosekrans' qualifications are already in the 16 record in an exhibit that was offered and accepted earlier 17 in the record, I don't see any need to go through his 18 qualifications -- 19 C.O. STUBCHAER: All right. 20 MS. LEIDIGH: -- at this point. 21 MS. KOEHLER: I'm -- 22 C.O. STUBCHAER: That was my thought also. 23 MS. KOEHLER: Thank you. I'm happy to accept that 24 advice. 25 C.O. STUBCHAER: Time-out. CAPITOL REPORTERS (916) 923-5447 9389 1 (Off the record from 1:42 p.m. to 1:43 p.m.) 2 C.O. STUBCHAER: The Board recognizes that his 3 qualifications are in the record. 4 MS. KOEHLER: Thank you, Mr. Chairman. 5 Mr. Rosekrans, did you prepare the -- 6 MR. GODWIN: Mr. Stubchaer, if I may have a word, 7 please? 8 C.O. STUBCHAER: Mr. Godwin. 9 MR. GODWIN: I just wanted to make clear for the 10 record that the exhibit identification index submitted by 11 Save the Bay, nowhere on there does it say, "Testimony of 12 Spreck Rosekrans," and nowhere does it say that EDF is 13 going to be relied on for his qualifications. 14 C.O. STUBCHAER: Your objection is noted. 15 Please, proceed. 16 MS. KOEHLER: Mr. Rosekrans, did you prepare the 17 tables that constitute Save the Bay Exhibit 7? 18 MR. ROSEKRANS: I would call them graphs and I did 19 prepare them. 20 MS. KOEHLER: Thank you. Can you explain very 21 briefly the data sources that are identified on those 22 graphs that you employed in preparing them? And -- let's 23 just leave it at that. 24 MR. ROSEKRANS: Yes, I can. Shall I put one on the 25 overhead projector so we can all look at the same thing? CAPITOL REPORTERS (916) 923-5447 9390 1 C.O. STUBCHAER: If you have transparencies, that 2 would be fine. Perhaps, if you slide the projector back 3 toward the stenographer you would get a larger picture and 4 tilt the mirror down. 5 MR. ROSEKRANS: I used to be a high school teacher 6 and I used these things, but it was a while ago. What I 7 would like to do is show two overheads, because there are 8 six graphs that are sort of two different types and briefly 9 explain what the data sources are and what information is 10 presented on the graphs. 11 The graph before you which I believe is -- I have 12 labeled Save the Bay 7C refers to -- has an outflow 13 comparison for both the San Joaquin, and for comparison 14 purposes, the Sacramento basins and each of those has 15 estimated flows by month on both an unimpaired basis and a 16 projected basis. 17 MS. KOEHLER: Mr. Rosekrans, I want to make sure 18 you're answering my question which was to identify the 19 sources and remember that the scope of your testimony is 20 only authenticating these documents. 21 MR. ROSEKRANS: Okay. I wasn't trying to go beyond. 22 MS. KOEHLER: Just a friendly reminder from your 23 lawyer. 24 MR. ROSEKRANS: Okay. I'm getting to that. This 25 graph before us, 7C, summarizes these flows for dry years CAPITOL REPORTERS (916) 923-5447 9391 1 and is not meant to say that the requirements currently in 2 place are regulated by dry years, but just to give us a 3 sense of what happens in dry years. 4 C.O. STUBCHAER: Please, don't talk about what the 5 requirements are or anything like that, just -- 6 MR. ROSEKRANS: Excuse me. Okay. I'm sorry. All 7 right. The unimpaired flows which we see in the hydrograph 8 at the top, and we can't quite see the hydrograph at the 9 bottom for the Sacramento basin, is data that I received 10 from the Department of Water Resources and is summarized in 11 this case for dry years. And on the other four graphs, or 12 in the other three graphs A, B and D -- 13 C.O. STUBCHAER: Go ahead. 14 MR. ROSEKRANS: -- refer to above normal, below 15 normal and critical years. The flows on the San Joaquin 16 chart that say "VAMP" refer to the flows that were 17 projected under a May pulse and were provided to me some 18 time ago by Mr. Steiner. 19 C.O. STUBCHAER: Okay. 20 MR. ROSEKRANS: The unimpaired flows for the 21 Sacramento basin, again, come from the Department of Water 22 Resources. The projected flows under current conditions, 23 or something resembling current conditions because there 24 are disputes about current regulatory conditions, comes 25 from -- CAPITOL REPORTERS (916) 923-5447 9392 1 MR. O'LAUGHLIN: Objection. 2 MR. ROSEKRANS: I'm sorry, I'm trying to be clear 3 about where the data comes from and what it represents. 4 Okay. All right. 5 C.O. STUBCHAER: The objection is sustained. 6 MR. ROSEKRANS: All right. Comes from DWRSIM Study 7 549 New. 8 MS. KOEHLER: Thank you. And then you've got two 9 other sets of graphs that we showed. Very briefly, I think 10 putting one of those up would be sufficient. 11 MR. ROSEKRANS: Save the Bay Charts 7E and F show a 12 variety of -- 13 MS. KOEHLER: Spreck, I'm sorry. I'm going to 14 interrupt you just briefly. I just want to make sure that 15 the record indicates clearly the title of this chart, it's 16 "Projected Flows and Flow Recommendations, San Joaquin 17 River at Vernalis Pulse Flow Period." 18 MR. ROSEKRANS: Thank you, yes. This is the -- 19 assuming that the pulse flow period occurs in May and 20 compares a variety of projected flows and flow 21 recommendations for the San Joaquin River at Vernalis. The 22 bar on the left in the dark black is the flows from the 23 AFRP working paper. The dark gray and medium gray bars 24 refer to the upper and lower bounds for the Water Quality 25 Control Plan. CAPITOL REPORTERS (916) 923-5447 9393 1 The light gray refers to the flow that we would 2 see at Vernalis in these year types in accordance with the 3 VAMP proposal. And the white bar is what we would get 4 absent the VAMP proposal. It says "no implementation" and 5 what I meant by that was no implementation of the -- 6 MR. BIRMINGHAM: Objection. 7 MR. O'LAUGHLIN: Objection. 8 C.O. STUBCHAER: Sustained. 9 MR. ROSEKRANS: Okay. 10 MS. KOEHLER: I'm going to ask Spreck if he can 11 identify the data source on this chart so that it's clear 12 for the record. 13 MR. ROSEKRANS: I'm sorry. Those also came from the 14 spreadsheet provided to me by Mr. Steiner of work that he 15 did in connection with the VAMP proposal for the San 16 Joaquin River Agreement. 17 C.O. STUBCHAER: Okay. Thank you, Mr. Rosekrans. 18 MS. KOEHLER: That concludes our direct presentation, 19 Mr. Chairman. 20 C.O. STUBCHAER: Are you ready for cross-examination? 21 MS. KOEHLER: Oh, yeah. 22 MR. O'LAUGHLIN: Mr. Stubchaer? 23 C.O. STUBCHAER: Mr. O'Laughlin. 24 MR. O'LAUGHLIN: I'd like to renew my objection to 25 strike the testimony and exhibits of Mr. Rosekrans and/or CAPITOL REPORTERS (916) 923-5447 9394 1 ask for delay to prepare for cross-examination of 2 Mr. Rosekrans. He just said in his statement that the data 3 presented, which we can find nowhere on here, that it says 4 DWRSIM Run 549 New, that's not shown on these graphs 5 anywhere. 6 MS. KOEHLER: Wait. Wait. Wait. 7 MR. BIRMINGHAM: Yes, it is. 8 MS. KOEHLER: Yes, it is. 9 MR. O'LAUGHLIN: They show up -- they don't show up 10 in any of the State Water Resources Control Board exhibits 11 or any other documents that have been presented to the 12 Board. And the one on the bottom it says "1995 Water 13 Quality Control Plan DWRSIM Study 549," but you don't know 14 if that study is the same as the DWR study for unimpaired 15 flow. So it's impossible to tell from this document what 16 the data sources are, or what we should have been looking 17 at in preparation for his cross-examination. 18 MS. KOEHLER: Mr. Chairman -- 19 MR. BIRMINGHAM: Mr. Chairman, I'll join in the 20 objection, although I was able to glean from the document 21 where it says "DWRSIM Study 549 New," Mr. Rosekrans in 22 response to Ms. Koehler's questions said that some of the 23 data that appears on 7C or D or E, they're not marked, some 24 of it comes from Dan Steiner. 25 Now I've looked very carefully at the documents. CAPITOL REPORTERS (916) 923-5447 9395 1 I can't find any reference to Mr. Steiner in any of the 2 charts or graphs that are marked as Save the Bay Exhibit 7. 3 And so I would either join in Mr. O'Laughlin's request to 4 defer the cross-examination of Mr. Rosekrans, or ask that 5 Mr. Rosekrans' statements concerning Mr. Steiner be 6 stricken. 7 C.O. STUBCHAER: Ms. Koehler. 8 MS. KOEHLER: Thank you, Mr. Chairman. These 9 graphs -- I think we need to separate out what the 10 objections are here. Earlier we heard the objection was 11 this wasn't submitted as part of a narrative. And I think 12 you ruled, and I believe correctly, that the Board's rules 13 don't require a narrative. 14 So let's move on to the real issue here which is 15 that we are now being told that notwithstanding that these 16 graphs have been in the record since September that there's 17 not enough notice that Mr. Rosekrans prepared these and 18 what these data sources are. 19 Each of these graphs has the data -- has the 20 applicable data points identified by a source. On the very 21 first chart on the very first page, which Mr. Rosekrans has 22 now labeled A, it says "unimpaired DWR." He has now 23 testified that that is raw data that came from the 24 Department of Water Resources. If further explanation is 25 needed of what that is and where it came from, that is the CAPITOL REPORTERS (916) 923-5447 9396 1 purpose of cross-examination. 2 I can conceive of no reason why the parties would 3 be unable until today to identify that as a question that 4 they would like to ask: Who prepared these charts? 5 Similarly, I don't believe it's required under 6 this Board's rules that Mr. Rosekrans write in a narrative 7 form or on these graphs that the VAMPVERN.WK4 data came 8 from Mr. Dan Steiner. He provided that as a further piece 9 of evidence to this Board so that you understood. 10 We felt that these technical identifications of 11 these model runs were certainly appropriate to give the 12 parties notice about where the data came from. And the 13 point of producing Mr. Rosekrans today was to provide 14 additional information about the source of that data. But 15 it is absolutely clear on the face of these documents where 16 these data points came from and the specific model runs. 17 As for the concern that DWRSIM Study 549 New is 18 not specific enough, I again protest that the parties have 19 had months and months of opportunity to address this issue, 20 or to prepare their cross-examination on it. This is an 21 extremely common term for a study that is used in 22 connection with various model runs conducted by the State 23 Board and the Department of Water Resources. 24 That is the entire point of cross-examination. If 25 there were questions about these sources of data that is CAPITOL REPORTERS (916) 923-5447 9397 1 what today is for and that is why we produced 2 Mr. Rosekrans. Since the parties have had these documents 3 since September I perceive of no reason other than -- I can 4 understand of no reason why additional time to prepare 5 cross-examination regarding the source of the data would be 6 required. 7 C.O. STUBCHAER: Mr. Birmingham. 8 MR. BIRMINGHAM: There is a couple of responses but 9 Ms. Koehler just made the point, Mr. Stubchaer. She said 10 that Mr. Rosekrans' reference to Mr. Steiner is evidence 11 and she used the term "new evidence." 12 MS. KOEHLER: It's not new evidence. 13 MR. BIRMINGHAM: I will ask the Reporter to go back 14 and read what she said because she said it was new evidence 15 to explain where it came from. And that's the point. The 16 notice that was sent by the Board is very explicit, written 17 testimony is supposed to be submitted. What Mr. Rosekrans 18 is going to say on direct examination is supposed to be 19 submitted in writing. Here, for whatever reason, it 20 wasn't. 21 Now, Ms. Koehler is absolutely right we have had 22 this document since last fall, but we have had literally 23 hundreds of documents. Now, we had no idea because 24 Mr. Rosekrans didn't submit written testimony, we had no 25 idea that he was going to appear here today. There are CAPITOL REPORTERS (916) 923-5447 9398 1 many documents that are submitted and marked for 2 identification by parties that say they were prepared by 3 people unrelated to the party. 4 For instance, today I used Westlands' Water 5 District Exhibit 106, that was a document prepared by the 6 Department of Water Resources. If I had sent that out last 7 week and called a witness today and suddenly that witness 8 started talking about -- and no one had notice that I was 9 going to call the witness today, and started talking about 10 that exhibit that would put the parties at a distinct 11 disadvantage. 12 The whole purpose of submitting written testimony 13 is so that the parties will know who is going to be called 14 and can prepare cross-examination. Ms. Koehler did not 15 tell us that these exhibits were going to be produced on 16 this day for examination. 17 MS. KOEHLER: I must strongly object. 18 C.O. STUBCHAER: Mr. O'Laughlin. 19 MR. O'LAUGHLIN: My concern is -- I'm going to go a 20 little bit more globally, if I may. I realize as 21 Mr. Rosekrans put -- the breath of this testimony is not 22 that great. They're some simple charts here and we 23 probably could work our way through that. Here's my 24 concern though, it's much more global. I'd be very 25 concerned if we went forward on this premise, because if I CAPITOL REPORTERS (916) 923-5447 9399 1 had Mr. Steiner prepare a model run and submit just the 2 model and the runs with no testimony and just authenticate 3 it, what have we done? 4 I mean is that the process that we want to have as 5 we move forward in the State Board hearings? So I'm not 6 concerned so much about this isolated incident. What I'm 7 concerned about is that if the parties are going to submit 8 testimony, we should be given notice of what that testimony 9 is and an opportunity to look at it and review it. 10 I could have done in Phase II, remember Steiner 11 had -- Dan Steiner had an extensive computer model. We 12 submitted all of that on disk. We also submitted an 13 extensive review of that in a written format summarizing 14 what the model results were. What would we have done if we 15 just submitted a modeling result and ad him come in and 16 authenticate it? Are we really moving the process forward? 17 All I'm asking for today is that if the Board 18 decides to move forward that we be given a chance, now that 19 we know that Mr. Rosekrans is going to testify and does 20 want to testify about Exhibit Number 7, that we be given a 21 chance to let -- if he's going to testify that we be 22 allowed to call him back at a later date and cross-examine 23 him. That's all I'm asking for. So if he wants to get 24 everything into the record, that's fine. 25 MEMBER DEL PIERO: Mr. Chairman. CAPITOL REPORTERS (916) 923-5447 9400 1 C.O. STUBCHAER: Mr. Del Piero. 2 MEMBER DEL PIERO: And you'll forgive me, 3 Mr. Chairman, for having an appointment that ran a little 4 late during the -- I came in I think after this discussion 5 began. 6 Could you, please, advise me, Mr. Rosekrans, from 7 what I'm able to glean from this conversation has been 8 directed by the Chair to identify these exhibits and the 9 sources of information from which he created them; is that 10 correct? 11 C.O. STUBCHAER: No. Ms. Koehler said he was here to 12 authenticate the exhibits only because there's no written 13 testimony, no narrative testimony. 14 MEMBER DEL PIERO: And they were prepared by him? 15 C.O. STUBCHAER: He says that they were prepared by 16 him. I can't testify to that. 17 MEMBER DEL PIERO: Okay. But he's here for 18 authentication purposes only? 19 C.O. STUBCHAER: Yes. 20 MEMBER DEL PIERO: What cross-examination is there to 21 be done with him? 22 C.O. STUBCHAER: Well, that's up to the parties. I 23 have some questions -- 24 C.O. BROWN: That's not the objection. 25 MR. O'LAUGHLIN: May I respond to that, if I may? CAPITOL REPORTERS (916) 923-5447 9401 1 That's an excellent question by -- 2 MEMBER DEL PIERO: But you're asking for -- 3 C.O. STUBCHAER: Mr. Del Piero, let Mr. O'Laughlin 4 finish. 5 MR. O'LAUGHLIN: No, I understand it. It's an 6 excellent question if the party is not going -- if they 7 would stipulate that they would not move Exhibit Number 7 8 into evidence, then I would have nothing to cross-examine 9 on because strictly all that Mr. Rosekrans has testified to 10 is that he's authenticated the document. He's 11 authenticated that he made that document. 12 Now, however, my assumption is that Save the Bay 13 wants to admit that testimony into evidence as an 14 evidentiary fact. And if that's the case, then I need to 15 go in and cross-examine about the basis and underlying 16 assumptions that went into that, what it shows, so forth 17 and so on. 18 There's two distinct things going on here. 19 Authentication just means that the document was done and it 20 exists. Evidence goes to what is in the document and what 21 is being proposed. If they want to offer it as evidence I 22 would just like a chance to cross-examine. If they're just 23 going to authenticate it today and not submit it into 24 evidence -- 25 MEMBER DEL PIERO: Mr. Chairman, you'll forgive me CAPITOL REPORTERS (916) 923-5447 9402 1 for having come in in the middle of this, it was unclear to 2 me as to what the nature of your ruling had previously 3 been. Now I understand what's going on. Again, I 4 apologize for being late. 5 C.O. STUBCHAER: Before we hear from the parties, I 6 have a question of our staff. 7 Do we have DWRSIM Study 549 New? 8 MS. LEIDIGH: No. We checked that and we do not have 9 that. It is a study on the AFRP run that was done for 10 somebody else. 11 C.O. STUBCHAER: Does the term "VAMPVERN Worksheet" 12 or "WK4" mean anything to us? 13 MS. LEIDIGH: No. 14 C.O. STUBCHAER: Ms. Koehler, did you expect the 15 parties receiving this evidence to inquire before the 16 testimony of what these terms mean? 17 MS. KOEHLER: It is -- I'm sorry. I'm not sure I 18 understand your question. 19 C.O. STUBCHAER: Well, you said that the parties have 20 had these exhibits for weeks or months and that they should 21 have -- any questions they had clarified or prepared for 22 cross-examination. And since these terms are unknown to 23 our staff or to me, did you expect the parties to ask for 24 clarification of what these runs, or worksheets were before 25 today so they could prepare their cross-examination? CAPITOL REPORTERS (916) 923-5447 9403 1 MS. KOEHLER: We did expect that, Mr. Chairman, 2 because these studies -- as Mr. Rosekrans indicated, some 3 of these studies came from the other parties themselves. 4 So we fully anticipated that these terms were familiar to 5 them. The San Joaquin River Group and their consultants 6 are, of course, a part of this hearing so we felt we had 7 given full notice about what the sources of these data were 8 here. 9 I do feel the need to point out, also, 10 Mr. Chairman, this is written testimony. I mean I do feel 11 that it's very important that we separate out what issues 12 we're talking about here. The question about whether we 13 are required to submit a full narrative is a very distinct 14 one from the notice issues that the parties are talking 15 about. This is written testimony within the rules of this 16 proceeding. 17 As far as notice, I'm very confused by 18 Mr. Birmingham's objection, because we submitted Save the 19 Bay 7 with our Phase II-A exhibits. What other notice were 20 we required to give that we would be presenting this 21 evidence on this day? 22 C.O. STUBCHAER: Would you suggest that the Board 23 accept these drafts perhaps on their face without knowing 24 the background, without nothing the VAMPVERN.WK4, without 25 knowing the DWRSIM Study 549 and having that in the record? CAPITOL REPORTERS (916) 923-5447 9404 1 MS. KOEHLER: I would think that it would certainly 2 be appropriate for the Board, the staff and the parties to 3 question Mr. Rosekrans extensively as they wish on these 4 data. Unlike the example Mr. O'Laughlin gave, we did not 5 generate these models. Mr. Rosekrans as he has indicated 6 here simply used data developed by the Department of Water 7 Resources and by the parties themselves to generate these 8 comparisons. 9 This is not original data that we are presenting 10 to the Board. If it were we would have presented it in a 11 different form. This is simply providing information that 12 comes out of these other studies. So it did not -- I don't 13 know that under the rules we are required to submit to the 14 Board as our own evidence these model runs. If that's 15 required we can, certainly, attempt to arrange that. 16 C.O. STUBCHAER: Well, I would just have to say given 17 what I know now if these exhibits are accepted into 18 evidence without further substantiation, the weight that we 19 would give to these exhibits would have to be fairly low I 20 think, because we don't have the background material on 21 which they're based. 22 MS. KOEHLER: Well, as I said, Mr. Chairman, if you 23 would like Save the Bay to somehow procure the models that 24 have been developed by DWR and the parties -- the other 25 parties in this proceeding to further document these graphs CAPITOL REPORTERS (916) 923-5447 9405 1 we can -- you know, we can attempt to do that. 2 C.O. STUBCHAER: It's kind of too late for the 3 purpose of the cross-examination now. 4 Ms. Leidigh, did you wish to say anything? 5 MS. LEIDIGH: Well, I will. I think I certainly 6 agree with you that the weight of this evidence would 7 probably be very light given its content and lack of 8 explanation of it in any kind of narrative form. 9 And if it is not cross-examined on and that 10 information is not brought out, then the information simply 11 is not going to be there. And the weight of the evidence 12 even if it is in the record is going to be very low. 13 MS. KOEHLER: May I ask a question, Mr. Chairman? 14 C.O. STUBCHAER: Yes. 15 MS. KOEHLER: Thank you. There have been any number 16 of graphic presentations like this and I -- you know 17 perhaps because our attendance has been a little limited, 18 it has not been my understanding that every witness who has 19 presented graphic evidence has been required to present the 20 raw data underneath that evidence in any sort of model runs 21 or in any other form to the Board. So I'm a little 22 confused about the standard here. 23 MR. BIRMINGHAM: Mr. Chairman? 24 C.O. STUBCHAER: Excuse me, we're -- we have some 25 other folks to be heard from. We'll make the rounds. CAPITOL REPORTERS (916) 923-5447 9406 1 Mr. Nomellini. 2 MR. NOMELLINI: Yes, I'm prepared to do some 3 cross-examination on these exhibits, because they have been 4 in our hands for some time. I think that a party that goes 5 forward to present evidence of this type runs the risk if 6 limited testimony is submitted that their exhibits may not 7 be admitted over the objection of another party after the 8 cross-examination is complete, or that they would be given 9 very little weight. 10 I don't feel prejudiced by what's going on here. 11 I think it's a little unique, we haven't run into it 12 before. However, if those who are here feel that they 13 needed another opportunity to cross-examine, I would have 14 no objection to that based on my previous presentations to 15 the Board that I believe in a broad opportunity to 16 cross-examine, but I am prepared to go forward today and I 17 would expect to seek some answers to some of these 18 questions to satisfy myself as to the weight of these 19 particular exhibits. 20 So I think we can solve the problem by going 21 forward today, letting those of us who have cross today who 22 have not claimed prejudice go forward. And then those who 23 think they need more time, I think, another way to solve it 24 is say, "We'll give you a little more time." You guys come 25 back, let Mr. Birmingham and, I don't know, O'Laughlin CAPITOL REPORTERS (916) 923-5447 9407 1 prepare a bit. 2 C.O. STUBCHAER: Thank you, Mr. Nomellini. 3 Mr. Jackson. 4 MR. JACKSON: Yes. I certainly will bring out a 5 number of things involved in these graphs on 6 cross-examination and am prepared to do so today. But more 7 than that, Phase II-A is a continuation of Phase II. And 8 all of the evidence that is in Phase II, I'm sure we would 9 all agree, is relevant to Phase II-A. 10 This is nothing more than a depiction of what 11 Mr. Steiner testified to that in dry and critically dry 12 years the VAMP pulse flow is lower than the water quality 13 standard every time. That's, on its face, absolutely 14 consistent with the testimony that we had for the two 15 months we did Phase II. 16 My interest in cross-examining on these documents 17 is to take the pictorial representation of what Mr. Steiner 18 testified to and ask Mr. Keir, the fishery's biologist, 19 what that means for the fish. And to ask Ms. Andrews what 20 it means in terms of the food web and the hydrology. So it 21 seems to me that the weight should be determined after we 22 finish cross-examination. 23 MR. BIRMINGHAM: Mr. Chairman? 24 C.O. STUBCHAER: Mr. Birmingham. 25 MR. BIRMINGHAM: Ms. Koehler a few moments ago again CAPITOL REPORTERS (916) 923-5447 9408 1 raised this and said, "This is written testimony." And by 2 "this" she meant Save the Bay Exhibit 7. And that also 3 helps make my point. This is trial by ambush. 4 If we look at the exhibit list that was submitted 5 we can look at Exhibit 1 and it says the testimony of 6 Elizabeth Andrews. Exhibit 2 from the Sierra to the Sea 7 the Ecological History of the San Francisco Bay Delta 8 Watershed. Exhibit 3 the testimony of William Keir. 9 Exhibit 4 is another exhibit identified. Exhibit 5 is 10 another exhibit identified. Exhibit 6 is another exhibit 11 identified. 12 Then we get to Exhibit 7, if this had been listed 13 on the exhibit list as the testimony of Spreck Rosekrans, 14 then Ms. Koehler would be right. We would have had notice 15 that he was going to appear to testify as to these 16 documents, but that's not how it's identified. 17 It's simply identified as outflow comparison 18 graphs. It doesn't say that it's testimony. It doesn't 19 say that Mr. Rosekrans is going to be here to testify to 20 it. I suppose under Ms. Koehler's theory the authors of 21 the California Department of Fish and Game study that's 22 Exhibit 5 could be here to testify as to that. That is the 23 logical extension with the argument that she's making. 24 I like Mr. O'Laughlin don't have a lot of 25 questions on these graphs, but if we -- we're going to be CAPITOL REPORTERS (916) 923-5447 9409 1 here for a long time. And if we're going to start 2 referring to stuff like this, Exhibit 7, as testimony and 3 not list the witness who is going to appear to testify as 4 to it on the exhibit list, then we're going to have lots of 5 discussions like this. 6 MS. KOEHLER: Mr. Chairman, I do feel the need to 7 respond to that. 8 C.O. STUBCHAER: Ms. Koehler. 9 MS. KOEHLER: Obviously, there's no intention to try 10 anybody here by ambush. To the extent that Mr. Birmingham 11 is unsatisfied with our identification of this exhibit, we 12 are certainly contrite about that. The reason I think that 13 my administrative assistant listed it that way is because 14 that was the title on the document. 15 Mr. Rosekrans' name was on this document, this 16 document has been in the record. If the extent of this 17 objection is that we did not put Mr. Rosekrans' name on the 18 document list, you know I find that to be a very slim read 19 on which to exclude all of this evidence. 20 C.O. STUBCHAER: Well, we're not ruling on the 21 evidence yet. And it may be that -- a solution to this 22 dilemma would be to bring Mr. Rosekrans back next week for 23 cross-examination. 24 Mr. Godwin. 25 MR. GODWIN: A couple things, I mean one is her CAPITOL REPORTERS (916) 923-5447 9410 1 administrative assistant may have put that together but 2 she's the one that signed the letter and sent it out to all 3 the parties -- 4 MS. KOEHLER: I'll apologize again then. 5 MR. GODWIN: -- it was her responsibility. 6 Secondly, if the testimony itself is going to be given 7 little weight, then I suggest that the Board also give the 8 cross-examination equal weight as well. 9 C.O. STUBCHAER: We cannot determine the weight until 10 the cross-examination is concluded, of course, as I said 11 earlier. 12 MR. GODWIN: Right. 13 C.O. STUBCHAER: Ms. Forster. You said you wanted to 14 say something. 15 MEMBER FORSTER: Yes. Yes. I wanted to ask both the 16 Controller and the Chairman what would be wrong with -- I 17 understand everybody's objection. His name should have 18 been under that and you understand that. 19 MS. KOEHLER: I certainly do. 20 MEMBER FORSTER: And I'm sure that it was just an 21 oversight and I have a lot of empathy for you, because this 22 is a tough arena in here. 23 I just don't know why it isn't possible, we have 24 adjusted schedules for everybody else, why can't we just 25 bring him back with it stated the way everybody is used to CAPITOL REPORTERS (916) 923-5447 9411 1 this being stated. If they want some description of it, 2 have them bring some description. Is there anything in our 3 rules and our time frames that would disallow this 4 accommodation? 5 C.O. STUBCHAER: Are you asking Ms. Koehler? 6 MEMBER FORSTER: No, not you. I'm sorry. You. 7 C.O. STUBCHAER: That is the suggestion that I made 8 as it may be a way out. The one thing that is a bit unfair 9 is instead of having several weeks to go over it, they have 10 a few days. 11 MEMBER FORSTER: But they said it wasn't that big of 12 a deal. 13 C.O. STUBCHAER: I know. 14 Mr. Del Piero. 15 MEMBER DEL PIERO: Having been an aficionado of 16 cowboy movies for an extended period of time, I have to 17 tell you that this is the longest ambush that I've heard 18 of. Six months is a long time to bump somebody off from 19 behind the rack. 20 It seems to me, Mr. Chairman, that -- I appreciate 21 the objections raised by counsel. I also appreciate the 22 fact that that name is not on the list, however, it was on 23 the document. The document accompanied -- the document and 24 all the evidentiary exhibits accompanied the list. The 25 list is not evidence. The document is the evidence. CAPITOL REPORTERS (916) 923-5447 9412 1 Notice is to advise the parties as to what the 2 proposed evidentiary exhibits are. The evidentiary 3 exhibits are what they are on their face. His name having 4 been on its face, I think that we are arguing about how 5 many angels dance on the head of a pin at this point. 6 I would recommend, Mr. Chairman, that you render a 7 decision as to the appropriateness or inappropriateness of 8 going forward on this matter, but Black Bart didn't show up 9 here today, Mr. Chairman, and whether or not the witness's 10 name is on a cover sheet is not determinative as to whether 11 or not it's appropriative for this evidence to be 12 incorporated into the record. 13 C.O. STUBCHAER: Of course, as we stated we won't 14 rule on the admissibility of the evidence until the 15 conclusion of cross-examination. My inclination is to 16 proceed with the cross-examination. If the parties need 17 Mr. Rosekrans to come back next week to conclude the 18 cross-examination, we'll arrange for that. 19 MS. KOEHLER: I believe we can arrange that. 20 C.O. STUBCHAER: All right. 21 MR. O'LAUGHLIN: But we're not here next week. 22 C.O. STUBCHAER: All right. February 9th. 23 MR. O'LAUGHLIN: Thank you. 24 C.O. STUBCHAER: And 10th. 25 MR. NOMELLINI: There you go. CAPITOL REPORTERS (916) 923-5447 9413 1 C.O. STUBCHAER: Sorry. And so with that, who wishes 2 to cross-examine this panel? Let's see, where's 3 Ms. Whitney with the cards? Mr. O'Laughlin, Mr. Nomellini, 4 and who else? Mr. Birmingham and Mr. Jackson. That's just 5 four. 6 MS. KOEHLER: Mr. Chairman? 7 C.O. STUBCHAER: Yes. 8 MS. KOEHLER: If I could make a request, as I 9 indicated earlier, I believe Mr. Keir is due back any 10 moment. So if it's possible to proceed with those parties 11 who wish to cross-examine Ms. Andrews -- I mean I'm sure 12 many may want to cross-examine both, but to the extent that 13 we can begin with cross-examination of those who intend to 14 only cross-examine her that would probably be the most 15 efficient. 16 C.O. STUBCHAER: I'll tell you what we're going to 17 do, we're going to take our 12-minute afternoon break now. 18 We're in recess. 19 (Recess taken from 2:16 p.m. to 2:32 p.m.) 20 C.O. STUBCHAER: We're going to reconvene. 21 Mr. O'Laughlin? 22 MR. O'LAUGHLIN: Yes, Mr. Stubchaer, I know that it's 23 been the practice since you've been the Chairman to take 24 cards and shuffle them with regards to cross-examination. 25 I've had an opportunity to talk with Mr. Nomellini and CAPITOL REPORTERS (916) 923-5447 9414 1 Mr. Jackson. They're prepared to go forward today to 2 cross-examine all three witnesses including Mr. Rosekrans. 3 And I was wondering if the Chairman would mind if 4 those two parties proceeded and then that would allow 5 Mr. Birmingham and I a chance maybe to prepare our 6 cross-examination for Mr. Rosekrans should he be coming 7 back Thursday or early next week. 8 C.O. STUBCHAER: Before we answer that question, we 9 have a procedural matter this has to do with the notice of 10 intent to appear. And Ms. Leidigh, or other staff members 11 would you, please, tell us what the situation is? 12 MS. LEIDIGH: Yes. During the break the staff went 13 and found the notice of intent to appear that was submitted 14 by Save San Francisco Bay Association on January 20th, 15 1998. And it has a list of witnesses who were proposed to 16 testify for Save San Francisco Bay Association and that 17 list is fairly long, but it does not include Spreck 18 Rosekrans. 19 C.O. STUBCHAER: Ms. Koehler. 20 MS. KOEHLER: Thank you, Mr. Chairman. Yes, like 21 Ms. Leidigh I rechecked and my error in speaking earlier 22 was because my colleagues and I at the Environmental 23 Defense Fund and Natural Resources had prepared a joint 24 list. And I'm afraid that's what I had referred to when I 25 said CAPITOL REPORTERS (916) 923-5447 9415 1 that Mr. Rosekrans was on our list. So I apologize for 2 misspeaking, it was unintentionally meant. 3 C.O. STUBCHAER: So he's not noticed to appear here 4 today? 5 MS. KOEHLER: Well, he was noticed to appear in the 6 proceedings on the Environmental Defense Fund's list. And 7 as we've discussed at length, he was noticed here today to 8 the extent that he was clearly identified on the face of 9 the exhibit, but other than that he was not. 10 C.O. STUBCHAER: Ms. Leidigh, what legal significance 11 does that have to the Board? 12 MS. LEIDIGH: Well, I think the problem is that he's 13 EDF's witness. And EDF did not indicate that it was going 14 to present witnesses during Phase II-A. 15 C.O. STUBCHAER: Is it appropriate for Mr. Rosekrans' 16 testimony to be heard today, Ms. Leidigh? 17 MS. LEIDIGH: My initial view of this -- and 18 obviously you know Ms. Koehler is going to have some 19 arguments and discussion -- is that, no, it would not be 20 appropriate given that he was not on the notice of intent 21 to appear as a witness for Save San Francisco Bay 22 Association. And the party that did list him did not 23 indicate that they were going to present any witnesses 24 during this phase. 25 MS. KOEHLER: Mr. Chairman, not to belabor this, but CAPITOL REPORTERS (916) 923-5447 9416 1 I do feel that this is a bit of a technicality. 2 Mr. Rosekrans is not only noticed by EDF at the same time 3 that he would have been noticed by Save the Bay, we were 4 talking about a witness list that was submitted last 5 January not for Phase II-A, but for the parties generally. 6 So to the extent that the list of witnesses is to give 7 general notice of who the parties intend to call, the 8 parties had exactly the same notice whether Mr. Rosekrans 9 was listed in January of 1998 for Save the Bay or for EDF, 10 number one. 11 Number two, Mr. Rosekrans was noticed by EDF and I 12 believe did testify, although, Spreck, please correct me if 13 I'm -- please make sure I'm right about this, in Phase II 14 on behalf of the Environmental Defense Fund; is that right? 15 MR. ROSEKRANS: That's correct. 16 MS. KOEHLER: Phase II-A is, of course, an extension 17 of Phase II. And I believe, you know, the prejudice to 18 Save the Bay and to the Environmental Defense Fund of 19 excluding Mr. Rosekrans' testimony in light of the fact as 20 we discussed that he was listed on the face of the 21 evidence -- of the document that is at issue since 22 September and the parties have had notice thereof since 23 September, and his qualifications have been in the record 24 since last January and he testified in Phase II, I believe 25 the prejudice to the other parties of our neglecting to CAPITOL REPORTERS (916) 923-5447 9417 1 include Mr. Rosekrans on our witness list last January 2 significantly lacks in the prejudice to Save the Bay 3 excluding the testimony at this point. 4 C.O. STUBCHAER: Mr. Nomellini. 5 MR. NOMELLINI: I think this is a lot to do about 6 nothing. And I think that we have -- the witness has put 7 some testimony in the record. We buy these transcripts at 8 $300 a day. We have an opportunity to make use of our 9 time, this evidence seems to be of some relevance. It 10 doesn't seem to be too surprising to me it looks like some 11 of the same evidence that we had before. 12 I would see it most productive for us to go 13 forward with this, eliminating the prejudice by allowing 14 those who feel prejudiced to have additional opportunity to 15 prepare, because I think we will see this evidence in a 16 subsequent phase of this proceeding. In any event, we've 17 been building -- I've never been a great fan of the 18 phasing, I view the whole record before us as being the 19 total record from a given point. 20 So I would urge that we go forward. Some of us 21 have some cross-examination of this witness, we can make 22 use of the time. And those who feel prejudiced, give them 23 an additional shot at this thing. And I don't think 24 there's any harm from it. I view it as a technicality and 25 a small one. CAPITOL REPORTERS (916) 923-5447 9418 1 C.O. STUBCHAER: Mr. Jackson. 2 MR. JACKSON: Yes, sir. I do believe it is a 3 technicality, but I have a solution that is well within the 4 prior history of this hearing. We've had more evidence 5 come in on rebuttal with no notice to anybody about who's 6 appearing at any time. 7 So it just seems to me that if we want to be 8 hypertechnical, we could have all of this evidence come in 9 on rebuttal and any other evidence Save the Bay would like 10 to bring in from any other number of experts. It seems to 11 me that that would start immediately after the finish of 12 the direct and all they need to do is notify you right now 13 that they'll be here for rebuttal. 14 C.O. STUBCHAER: Mr. Birmingham. 15 MR. BIRMINGHAM: Mr. Chairman, I'm confident that 16 this remark is going to draw snickers from Mr. Nomellini 17 and Mr. Jackson, but I would be the first to admit that in 18 some situations I tend to be a little bit anal. 19 C.O. STUBCHAER: A little -- 20 MR. BIRMINGHAM: A little bit anal. 21 UNIDENTIFIED LADY: Is that in the record? 22 MR. BIRMINGHAM: The Board has established rules to 23 avoid the very situation in which we find ourselves here 24 this afternoon. The Board's notice was very clear. It 25 says that, CAPITOL REPORTERS (916) 923-5447 9419 1 (Reading): 2 "Each party intending to participate must submit 3 to the State Water Resources Control Board and 4 each of the other parties the name of each 5 witness who will testify in such party's behalf 6 together with certain other information." 7 And the reason that the Board has that rule is so 8 that when the parties appear at a hearing, particularly one 9 like this that is long and drawn out, they will know what 10 to expect, what to prepare for and then the hearing can go 11 forward in an orderly manner. 12 The fact that Mr. Rosekrans' name happened to be 13 on the exhibits is no indication that he's going to be 14 called as a witness to testify as to those documents. And 15 if we're going to maintain any order in this hearing, 16 again, because of the long and drawn out nature of it and 17 the complicated issues that we're dealing with, it's more 18 important that we adhere to the rules. 19 I would at this time move to strike Mr. Rosekrans' 20 testimony and move -- although they haven't been admitted 21 yet -- I will object to the admission of Exhibit 7 on the 22 ground that it lacks foundation and there isn't any 23 evidence in the record that would lay that foundation. 24 C.O. STUBCHAER: Mr. O'Laughlin? 25 MR. O'LAUGHLIN: Could I make one point, I realize CAPITOL REPORTERS (916) 923-5447 9420 1 when we're going through this process that on the notice of 2 intent to appear we've been trying to give -- when that was 3 done, my understanding was the purpose of that was to give 4 other parties a chance to ascertain who you may be calling 5 in your case in chief and you were to proceed forward. 6 Realizing that on rebuttal you may have to call other 7 people that you never intended to call from other cases to 8 rebut certain testimony because you didn't know what the 9 testimony would be, we understood that. 10 My only concern here is that if Mr. Rosekrans is 11 going to testify, I disagree with Mr. Jackson, he can't 12 come back in rebuttal because the problem with coming back 13 in rebuttal is the scope of the examination is limited to 14 the direct so then we're not given a chance to proceed on a 15 wide variety of issues to deal with Mr. Rosekrans and his 16 testimony. 17 So what I'm trying to do here is all I'm saying is 18 I think the notice of intent is not a technicality, it's an 19 important point that we need follow. I think submittal of 20 written testimony is important as we proceed forward that 21 the parties be given an opportunity to do that. And I made 22 the original motion to strike the testimony, I'd be 23 perfectly happy if Mr. Rosekrans would, say, temporarily 24 withdraw that testimony, bring him back at a later date 25 with the testimony and submit it at a later date. CAPITOL REPORTERS (916) 923-5447 9421 1 C.O. STUBCHAER: What's your idea of a later date? 2 MR. O'LAUGHLIN: I'm sorry, I'm assuming it would not 3 take Mr. Rosekrans long to make a written summary. They 4 could have that out and we could have Mr. Rosekrans back 5 probably the first hearing date in February. 6 MR. JACKSON: I'll agree to that. 7 MR. NOMELLINI: How about June 1st? 8 C.O. STUBCHAER: Okay. 9 MS. KOEHLER: Mr. Chairman, let me see if I can do 10 something to move this along, because I feel the need to at 11 least make the point in the record that the only purpose of 12 the graphs provided by Mr. Rosekrans was to illustrate the 13 testimony provided by Ms. Andrews and Mr. Keir. It's not 14 separate. It doesn't stand on its own. It's completely 15 and totally illustrative of the points made in their direct 16 testimony. 17 It was for the benefit of the Board and perhaps, 18 unbelievably, for the benefit of the other parties to 19 provide some graphic illustration of these points. It was 20 intended, in other words, to be helpful. Obviously, we've 21 now spent three hours in a very unhelpful manner. So I 22 would like to move this dialogue along in a way that is 23 perhaps more productive. 24 C.O. STUBCHAER: Ms. Koehler. 25 MS. KOEHLER: Yes. CAPITOL REPORTERS (916) 923-5447 9422 1 C.O. STUBCHAER: The way we are going to move along 2 is I was prepared to grant Mr. Birmingham's motion, 3 frankly, but I will accept Mr. O'Laughlin's suggestion with 4 the generous support of my fellow Board Members here that 5 the testimony be withdrawn for today and that Mr. Rosekrans 6 prepare a narrative describing his graphs and bring it 7 back -- distribute it to the parties and bring it back. 8 MEMBER DEL PIERO: Distribute it before. 9 C.O. STUBCHAER: Distribute it before. I'm trying to 10 give them enough time, fortunately next week is a by week. 11 So could it be distributed by a week from tomorrow, the 12 10th -- the 3rd, does that give you enough time? 13 MS. KOEHLER: I want to make sure I understand. You 14 want it distributed by February 3rd? 15 C.O. STUBCHAER: As a starting date, we're talking a 16 date. That would give you enough time to prepare and it 17 would also give the other parties several days to review 18 and prepare their examination. 19 MR. ROSEKRANS: That's no problem. There are -- some 20 of the sources are these DWRSIM studies, the unimpaired 21 flows and the spreadsheet VAMPVERN. And I just -- I would 22 like to be able to reference that appropriately and I'm -- 23 and if somebody in this room could give me guidance so I 24 could do that -- 25 C.O. STUBCHAER: Well, I'll try. CAPITOL REPORTERS (916) 923-5447 9423 1 MR. ROSEKRANS: -- to please the Board. 2 C.O. STUBCHAER: It seems to me that DWRSIM is a 3 well-known model. The input parameters use the variables, 4 a list of those would probably be sufficient to describe 5 the DWRSIM Model. 6 The spreadsheet model I'm not familiar with. And 7 we heard earlier that's not already in the record, but if 8 it's a spreadsheet it could be supplied by e-mail or 9 floppy, or something like that. How large is it, the VERN? 10 MR. ROSEKRANS: It's medium sized. 11 C.O. STUBCHAER: How many megabytes? 12 MR. ROSEKRANS: I'm guessing less than a megabyte. 13 C.O. STUBCHAER: Okay. That's fine. All right. 14 Mr. Jackson. 15 MR. JACKSON: I'd just like to point out that the 16 model probably won't be necessary. Mr. Steiner testified 17 in regard to the model on behalf of the San Joaquin River 18 Group, we didn't put the model into evidence then. So I 19 wouldn't think that Mr. Rosekrans would have to put their 20 model into evidence. 21 C.O. STUBCHAER: Our staff says it was in. 22 MR. JACKSON: It's now in? 23 C.O. STUBCHAER: I don't think it's that much trouble 24 to list it. 25 MR. ROSEKRANS: No, it's not. I just want to do it CAPITOL REPORTERS (916) 923-5447 9424 1 right. 2 C.O. STUBCHAER: All right. So that will be the 3 ruling. 4 MS. KOEHLER: Thank you, Mr. Chairman. 5 C.O. STUBCHAER: And so the cross-examination of 6 Mr. Keir and -- 7 MS. ANDREWS: Ms. Andrews. 8 C.O. STUBCHAER: -- Ms. Andrews will proceed now. 9 When we previously asked for parties wishing to 10 cross-examine -- and I'll repeat as we did at the beginning 11 of this year's hearings, if there's anyone who thinks they 12 may want to cross-examine, identify yourselves now so you 13 can get a spot in the order. Otherwise -- Mr. Jackson, we 14 already have you. Mr. Nomellini, we already have you. And 15 we had a question on the order. 16 MR. NOMELLINI: Well, my agreement to change the 17 order was based on the problem with Spreck Rosekrans. And, 18 therefore, my willingness to avoid the shuffle is no longer 19 there. So Mr. O'Laughlin and Mr. Birmingham could risk the 20 draw. 21 C.O. STUBCHAER: The cards have been shuffled by 22 Ms. Forster and I have them in my hand. 23 Mr. Jackson. 24 MR. JACKSON: I was just going to point out that now 25 in order to ask the questions that I was planning to ask of CAPITOL REPORTERS (916) 923-5447 9425 1 these two witnesses, I needed those graphs and so I'm not 2 ready to cross-examine anybody until the 9th. 3 MS. KOEHLER: Can I ask a point of clarification, 4 Mr. Chairman? 5 C.O. STUBCHAER: Yes. 6 MS. KOEHLER: Is it -- is Mr. Jackson right in his 7 surmise that with the withdrawal of Mr. Rosekrans' 8 testimony he can't even ask these witnesses questions about 9 those graphs? They have been in evidence -- I mean they 10 have been submitted since September and as I say they were 11 submitted for the purpose of illustrating the testimony of 12 these parties. 13 C.O. STUBCHAER: Well, let me throw that to the 14 objecting parties. Is there any objection to cross-examine 15 with the graphs in Exhibit 7? 16 MR. O'LAUGHLIN: None by me. 17 MR. BIRMINGHAM: No. 18 C.O. STUBCHAER: You may go. The order of 19 cross-examination will be Mr. Jackson, Mr. O'Laughlin, 20 Mr. Nomellini and Mr. Birmingham. 21 MR. JACKSON: And the graphs are in for purposes of 22 cross-examination? 23 C.O. STUBCHAER: For the purpose of 24 cross-examination. 25 MR. O'LAUGHLIN: Well, they're -- CAPITOL REPORTERS (916) 923-5447 9426 1 MR. BIRMINGHAM: Point of clarification, they're not 2 in the record. 3 MR. O'LAUGHLIN: They're not in the record. 4 C.O. STUBCHAER: That's right. They are not in the 5 record. They are available for the purpose of 6 cross-examination. 7 MR. NOMELLINI: They're going to have to be part of 8 the record, or we wouldn't know what the questions are. 9 C.O. STUBCHAER: All right. 10 MR. NOMELLINI: Can we mark them? 11 C.O. STUBCHAER: All right, they are identified 12 already. The issue is: Have they been accepted into the 13 record? They have not been accepted, but they are 14 identified. And even if they're not accepted, they will be 15 available for reference on the cross-examination. 16 MR. O'LAUGHLIN: Absolutely. 17 C.O. STUBCHAER: Mr. Jackson. 18 ---oOo--- 19 CROSS-EXAMINATION OF SAVE SAN FRANCISCO BAY ASSOCIATION 20 BY THE REGIONAL COUNCIL OF RURAL COUNTIES 21 BY MICHAEL JACKSON 22 MR. JACKSON: Ms. Andrews, calling your attention to 23 your direct testimony, on Page 1 of your written testimony 24 you indicate that your testimony was prepared to address 25 the relationship of flow regimes to the protection of fish, CAPITOL REPORTERS (916) 923-5447 9427 1 wildlife and other public trust uses. 2 What public trust uses besides fish and wildlife 3 does your testimony consider? 4 MS. ANDREWS: I was including that term as a 5 catchall. Unfortunately, fish and wildlife does not always 6 include such things like aquatic invertebrates, other 7 creatures which are dependent on flow regimes but may not 8 be thought of as fish or wildlife. Certainly, there are 9 other public trust uses as well which may or may not have 10 been part of the Board's consideration in using that 11 terminology. But my intention was simply to cast a broader 12 net in describing the aquatic ecosystem and the inhabitants 13 thereof. 14 MR. JACKSON: Are the things that you consider in 15 public trust, do they include biotic composition and 16 structure and function of aquatic and wetland species? 17 MS. ANDREWS: Let me clarify that I'm not an attorney 18 and I know that public trust is a very weighty term. Let 19 me simply say that my understanding of "public trust" would 20 certainly include those components. 21 MR. JACKSON: All right. Now, in regard to the items 22 that you considered, you indicate that the ecosystem types 23 that you considered are extremely sensitive to hydrologic 24 alteration; is that correct? 25 MS. ANDREWS: Yes, that's correct. CAPITOL REPORTERS (916) 923-5447 9428 1 MR. JACKSON: And why is that the case? 2 MS. ANDREWS: Well, there are a lot of ecologic 3 factors which are influenced by flow regime. Some of those 4 are habitat availability for aquatic organisms, soil 5 moisture availability for plants, the availability of food 6 cover and water supply for terrestrial animals, water 7 temperature, oxygen levels, the availability of flood plane 8 habitats for both aquatic and terrestrial organisms, 9 nutrient and organic material exchanges between river and 10 flood plane, the creation of sites for plant colonization 11 and the structuring of river channel morphology or shape 12 and physical habitat conditions all of those are driven by 13 flow regime. 14 MR. JACKSON: Now, when you first got this detail to 15 take a look at the particular alternatives that the State 16 Board was considering for meeting the water quality 17 standards in the Bay-Delta, did you review the Draft 18 Environmental Impact Report? 19 MS. ANDREWS: Yes, I did. 20 MR. JACKSON: Did you find any such discussion of 21 hydrologic processes as they affect, for instance, aquatic 22 ecosystems? 23 MS. ANDREWS: I believe there was some discussion of 24 the affect on riparian lands, but certainly not of that 25 broader review of the affect on aquatic ecosystems, no, I CAPITOL REPORTERS (916) 923-5447 9429 1 don't recall that. 2 MR. JACKSON: Could the failure of such a broad 3 review, in your opinion, cause the Board to choose the 4 wrong alternative? 5 MS. ANDREWS: As I understand it the Board is really 6 in a position of having to weigh a number of different 7 competing objectives in choosing the appropriate 8 alternative. And to the extent that they are not given a 9 full description of the impact of a chosen alternative on 10 the ecological conditions, they would not have full 11 information on which to base their decision. 12 MR. JACKSON: In your review of the EIR did you find 13 any discussion of the role of hydrologic processes in 14 ecosystem functions such as food web support or nutrient 15 cycling? 16 MS. ANDREWS: Not that I recall. 17 MR. JACKSON: Now, each of these alternatives suggest 18 a way to meet the water quality standards, do they not? 19 MS. ANDREWS: Yes. 20 MR. JACKSON: And each of them relies on a different 21 set of water delivery systems, different flows and 22 different export capacities; is that right? 23 MS. ANDREWS: That's my understanding. 24 MR. JACKSON: Did you find in the EIR any balancing 25 of those particular things in terms of within the CAPITOL REPORTERS (916) 923-5447 9430 1 alternatives? For instance, did the alternative specify 2 where the water would come from, down which tributary? 3 MS. ANDREWS: I believe that in every case it did. 4 MR. JACKSON: And is there a difference in terms of 5 ecosystem effects of where the water comes from? 6 MS. ANDREWS: Absolutely. The flow of water down one 7 channel is very different from a different flow of water 8 down several channels. So certainly the decision made in 9 each alternative as to how water would be delivered to 10 Vernalis would have an enormous effect on the benefits that 11 would be felt in the ecosystem. 12 MR. JACKSON: And what -- you've described the effect 13 as "enormous." Which parts of the ecosystem would be 14 affected depending on whether or not the water was released 15 down an individual tributary? 16 MS. ANDREWS: The list I provided earlier describes 17 some of the factors, ecosystem functions that are affected 18 by a sustained high flow on a seasonal basis. So that 19 those were the ones that I felt were the most relevant, in 20 particular, the flood pulse at Vernalis, very small flow 21 pulse. 22 MR. JACKSON: Now, calling your attention to the -- 23 for instance, the evaluation of alternative two, which is 24 an alternative that essentially makes the Bureau and the 25 State Water Project responsible for meeting the water CAPITOL REPORTERS (916) 923-5447 9431 1 quality standards, I presume it doesn't make a difference 2 ecologically who is responsible? 3 MS. ANDREWS: No, certainly not. And I know in the 4 Draft EIR there were assumptions made given that 5 responsibility how the water would then be delivered, but 6 there are probably other means by which that could have 7 happened as well still with the responsibility lying with 8 those two parties. 9 MR. JACKSON: But it could -- could it make a 10 difference ecologically dependent on whether or not the 11 diversion capacity was greater under one alternative than 12 another? 13 MR. BIRMINGHAM: Objection. Ambiguous. 14 MR. JACKSON: Well, let's step back. I'll assume 15 that it's ambiguous and ask it again. 16 Alternative two of the State Board's alternative 17 has the lowest exports of all of the alternatives, much 18 lower than, for instance, alternative five. 19 When you compared these alternatives in terms of 20 ecological health, did you take into consideration that 21 alternative two would entrain less fish than alternative 22 five at the pumps? 23 MR. BIRMINGHAM: Objection. Compound. 24 MR. JACKSON: I don't believe it is. 25 C.O. STUBCHAER: I think it's answerable as asked. CAPITOL REPORTERS (916) 923-5447 9432 1 MS. ANDREWS: No. My testimony was oriented towards 2 looking at the effects in the upstream basin. 3 MR. JACKSON: So your testimony and your comparison 4 of alternatives did not consider anything downstream of 5 Vernalis; is that correct? 6 MS. ANDREWS: It did not specifically and it 7 certainly did not specifically look at the effect of 8 export. 9 MR. JACKSON: All right. Did it also -- did you also 10 determine since the flow -- let me back up. 11 The flow schedule in alternative two from the San 12 Joaquin is much less than that of alternative five; is that 13 correct? 14 MS. ANDREWS: I'm not sure what you mean by "the flow 15 schedule." 16 MR. JACKSON: Okay. The amount of water down the San 17 Joaquin River is much less in alternative two than it is in 18 alternative five, correct? 19 MS. ANDREWS: At what location? I -- 20 MR. JACKSON: Let's say at Vernalis. 21 MS. ANDREWS: What I looked at in comparing the 22 alternatives was a general conceptual framework of the kind 23 of operation that would provide broad-scale ecological 24 enhancement and the relative fit of the alternatives within 25 that framework. CAPITOL REPORTERS (916) 923-5447 9433 1 So I looked, generally, at the level of the 2 working paper flows that were supplied under each of the 3 alternatives, but I did not otherwise compare the specific 4 flow delivery patterns between the alternatives. 5 MR. JACKSON: All right. So if alternative five 6 calls for 500,000 acre-feet of water to be released from 7 Friant and alternative two called for no water to be 8 released from Friant, you did not consider that in regard 9 to your evaluation that alternative five was preferable? 10 MS. ANDREWS: I did in that alternative five called 11 for contributions from all of the tributaries in the upper 12 San Joaquin. As you've just described for alternative two, 13 the upper San Joaquin would not benefit under alternative 14 two in terms of enhanced flows. 15 So you would be affecting a smaller geographic 16 scope of the San Joaquin Basin if that flow enhancement 17 were not occurring on one of the upstream parts of the 18 basin. 19 MR. JACKSON: All right. So did you consider whether 20 or not the amount of flow that would result on the San 21 Joaquin from the Friant facility in alternative five was an 22 appropriate flow for ecological reasons? 23 MS. ANDREWS: I did not look at the quantitative 24 amounts of flow on individual streams, as I said, other 25 than to look at their ability to attain part of the CAPITOL REPORTERS (916) 923-5447 9434 1 alternative working -- excuse me, the '95 working paper 2 flows. 3 MR. JACKSON: So basically what you did is to assume 4 that the working paper flows were the appropriate 5 environmental solution to problems on the San Joaquin? 6 MS. ANDREWS: As I said in my direct testimony, 7 unless there's evidence to the contrary I believe that the 8 appropriate model to look towards for creating broad scale 9 environmental enhancement on the San Joaquin Basin is 10 recreating key portions of a natural hydrograph. 11 I discussed that at some length and then looked as 12 a second component of my examination of the alternatives as 13 to the comparative ability of the alternatives to meet the 14 working paper flow objectives. 15 MR. JACKSON: So, essentially, the way you evaluate 16 them, the closer the flow is to the working paper flow on 17 each tributary in the San Joaquin the greater the ability 18 to restore the San Joaquin environment? 19 MS. ANDREWS: As I just said that was half of how I 20 looked at evaluating the alternatives. 21 MR. JACKSON: Would you explain the other half to me 22 since I may be slightly slow? 23 MS. ANDREWS: The first proposal that I made was a 24 conceptual framework for ecologic enhancement on the San 25 Joaquin River Basin. And that is that we recreate some CAPITOL REPORTERS (916) 923-5447 9435 1 portion of the natural hydrograph, the key aspects of a 2 natural hydrograph on a broad a scale as possible to create 3 the biggest ecologic enhancement that we could within the 4 basin. 5 And so on the face of it, certainly excluding an 6 entire section of the basin from that enhancement would 7 suggest that that alternative was perhaps less desirable 8 and had less potential for ecologic enhancement. 9 MR. JACKSON: And in your opinion would result in 10 greater impacts on the public trust at least of the 11 excluded drainage? 12 MS. ANDREWS: Impact implies an action. I'm not sure 13 which action you're applying. 14 MR. JACKSON: Let's say the omission of water on any 15 one of the streams might result, in your opinion, in a 16 lesser protection of the public trust? 17 MS. ANDREWS: It is my testimony that providing flows 18 on river channels at a level which recreates key ecosystem 19 functions provides a greater level of ecological 20 enhancement. So to the extent that such flows would be 21 excluded from a portion of the San Joaquin basin, that 22 would indicate a reduction in the potential enhancement of 23 those public trust values. 24 MR. JACKSON: Well, calling your attention to your 25 testimony on Page 4 in the fourth paragraph you indicate CAPITOL REPORTERS (916) 923-5447 9436 1 that, 2 (Reading): 3 "We have modified channels, diminished 4 hydrographs and these are not the original 5 rivers." 6 Correct? 7 MS. ANDREWS: Correct. 8 MR. JACKSON: Now, are you saying that, then, if we 9 accepted that we were not going all the way back to the 10 original rivers, that the best environmental scheme would 11 be to have a diminished average on each of the rivers that 12 sort of mimic the natural hydrology? 13 MS. ANDREWS: Ideally you would want to conduct the 14 type of research that could establish what flows were 15 necessary to drive key ecologic functions. I don't believe 16 that research has been done on most of the rivers in this 17 basin. 18 Without that evidence, the simplest conclusion I 19 think we can reach is that you would want to recreate some 20 sort of quasi natural, reduce natural flood hydrograph on 21 all of the waterways flowing into the San Joaquin at 22 Vernalis. 23 MR. JACKSON: Is it fair to assume that if we did 24 that with some diminished amount of water, as compared to 25 unimpaired flow, that this environment can be improved? CAPITOL REPORTERS (916) 923-5447 9437 1 MS. ANDREWS: I would hope that improvement of the 2 environment is, in fact, the goal of this proceeding with 3 regard to implementing the Vernalis flow objective. That 4 was a stated intent. 5 MR. JACKSON: So if you move from 5 percent of the 6 flow compared to unimpaired flow to 15 percent you would 7 expect that that would be an improvement in environmental 8 quality? 9 MS. ANDREWS: It certainly represents a potential 10 improvement. Now, in any given river system, depending on 11 the conditions in the river channel and how they've changed 12 over time you may find a certain percentage of an 13 unimpaired condition gave you much greater ecological 14 benefit than others. 15 And it is possible that providing a modest 16 enhancement on all the streams gives you less overall 17 benefit than if you concentrated the enhancement on a 18 smaller subset of the tributaries in the upper San Joaquin, 19 but I have seen no evidence to indicate that such an 20 evaluation has been done that would lead us to that 21 conclusion. 22 MR. JACKSON: Now, when you reviewed the 23 environmental document did you find such an evaluation in 24 the environmental document? 25 MS. ANDREWS: No, I did not. CAPITOL REPORTERS (916) 923-5447 9438 1 MR. JACKSON: Did you look for it? 2 MS. ANDREWS: Yes, I did. 3 MR. JACKSON: Would you have expected it to be there? 4 MS. ANDREWS: Yes, I would have. 5 MR. JACKSON: A part of your testimony has been in 6 regard to geomorphology, has it not? 7 MS. ANDREWS: Yes, it has. 8 MR. JACKSON: Is that a particular area of expertise 9 of Phillips and Associates? 10 MS. ANDREWS: Yes, it is. 11 MR. JACKSON: Did you find any discussion in the EIR 12 dealing with the changes in geomorphology caused by the 13 diminishment of the unimpaired hydrograph? 14 MS. ANDREWS: Not that I recall. 15 MR. JACKSON: Would it be important to evaluate the 16 changes caused by the diminished hydrograph from the 17 various storage projects in order to determine existing 18 conditions? 19 MS. ANDREWS: I would think for the purpose of trying 20 to create ecologic enhancement it would be very important 21 to understand the role that river system geomorphology 22 played in that and the extent to which the proposed flow 23 regime might be something that could create and sustain a 24 given environment. 25 We may have remnant conditions on some of these CAPITOL REPORTERS (916) 923-5447 9439 1 rivers that will disappear with the expected change in 2 flows that is proposed in this document, or that are simply 3 the result of all of the storage and diversion projects on 4 them. 5 C.O. STUBCHAER: Mr. Birmingham? 6 MR. BIRMINGHAM: I'm going to raise an objection as 7 to the scope of the examination on the grounds of 8 relevance. When we started this phase of the hearing the 9 Hearing Officer indicated that the Board would like to try 10 and narrow the scope of examination, in particularly 11 cross-examination, more closely tailored to the issues that 12 are the subject of the noticed hearing. 13 This testimony is certainly very enlightening and 14 would be relevant if we were talking about the appropriate 15 flow regime on one of the tributary streams, but that's not 16 the purpose of this hearing. And so I raise the objection 17 for that purpose. 18 C.O. STUBCHAER: Mr. Jackson. 19 MR. JACKSON: Yes, Mr. Stubchaer, I'm taking these 20 questions directly out of the testimony. I'm using exactly 21 the same words that are in the testimony. And all I'm 22 asking for is for the testimony to be explained to me on 23 cross-examination in a way that I can understand it and 24 that's the purpose of cross-examination. 25 C.O. STUBCHAER: I recognize that you are following CAPITOL REPORTERS (916) 923-5447 9440 1 the testimony, I also understand Mr. Birmingham's objection 2 regarding the unimpaired hydrographs on the geomorphology 3 on the San Joaquin River, which basically goes way back and 4 has nothing to do, that I see, with the San Joaquin River 5 Agreement and whether -- the opposition to the San Joaquin 6 River Agreement, but you are within the bounds of the 7 direct testimony, so, please, proceed. 8 Mr. Nomellini. 9 MR. NOMELLINI: On the question of the relevance, it 10 seems to me that the San Joaquin River Agreement has a 11 major shortcoming which we've eluted to that it has not 12 specified from where the water will be obtained. 13 There are three tributaries involved in the San 14 Joaquin River Agreement: The Stanislaus, the Merced and 15 the Tuolumne. And I think this testimony and the relevance 16 of the geomorphology, which I don't fully understand, but 17 as I gleaned it is that it is important to have a 18 proportionate flow in each one of these tributaries -- 19 C.O. STUBCHAER: Well, you're testifying. 20 MR. NOMELLINI: Therefore, I think it is relevant. 21 C.O. STUBCHAER: This specific question had to do 22 with the unimpaired flow hydrograph and the effects of the 23 reservoirs, not the -- so I think as far as Phase II-A is 24 concerned, I don't think it is very relevant. But it is 25 within the scope of the direct, so I'm going to permit the CAPITOL REPORTERS (916) 923-5447 9441 1 question. 2 MR. JACKSON: Well, the next question is: Whether or 3 not the changes that have happened by the building of the 4 facilities have changed the ability of the stream to move 5 material and to move nutrients in the San Joaquin system? 6 MR. O'LAUGHLIN: Objection. That's a statement not a 7 question. 8 C.O. STUBCHAER: I can't hear you. 9 MR. O'LAUGHLIN: Objection. That's a statement not a 10 question. 11 MR. JACKSON: Well, there was a question at the end 12 of it. 13 C.O. STUBCHAER: There was a question. 14 Please, answer it. 15 MS. KOEHLER: Do you understand the question? 16 MS. ANDREWS: I believe so. Certainly, the 17 construction of dams along a waterway block to a certain 18 extent the movement particularly of sediments in a river 19 channel and thereby affect the geomorphology of the stream 20 downstream. 21 Certainly, the construction of levees affects the 22 exchange of nutrients between the river and the flood 23 plane. So, yes, certainly there will have been changes due 24 to constructions by humans along the waterways in terms of 25 how material moves through the system. It doesn't diminish CAPITOL REPORTERS (916) 923-5447 9442 1 the importance of that movement however. 2 MR. JACKSON: What factors did you consider in making 3 your comparison of the alternatives in the State Board's 4 Draft EIR that enable you to come to the conclusion that 5 alternative five was the appropriate way, the most 6 appropriate way to meet the Water Quality Control Board 7 standards? 8 MS. ANDREWS: The two things that I looked at were 9 how well an alternative really attempted to replicate 10 something of a natural flow condition in the San Joaquin 11 River at Vernalis and throughout the basin. And, secondly, 12 how well the alternatives met the flows that were 13 identified in the 1995 working paper document. 14 MR. JACKSON: All right. Now, in your consideration 15 of the working paper document did you spend any time with 16 the concept of X2? 17 MS. ANDREWS: No, I did not. 18 MR. JACKSON: Do you know what X2 is? 19 MS. ANDREWS: Yes, I do. 20 MR. JACKSON: Do you know whether or not the flows, 21 the magnitude of the flows suggested in the working paper 22 would place X2 outside of Suisun Bay most of the time and 23 into San Francisco Bay? 24 MS. ANDREWS: That was not part of what I looked at 25 in preparing the testimony. CAPITOL REPORTERS (916) 923-5447 9443 1 MR. JACKSON: So you don't have any idea of what the 2 magnitude of alternative five flows would do to the 3 location of X2? 4 MS. ANDREWS: That's correct. 5 MR. JACKSON: In your consideration of alternative 6 five as your chosen alternative for meeting the water 7 quality control standards, did you take into account the 8 fact that it resulted in the highest water supply of any of 9 the alternatives to the export community? 10 MS. ANDREWS: You mean water supply impact? 11 MR. JACKSON: No. It actually results in way more 12 water for them -- 13 MS. ANDREWS: No, I did not -- 14 MR. JACKSON: -- than any of the others. 15 MS. ANDREWS: No, I did not look at that. 16 MR. JACKSON: Okay. Now, calling your attention to 17 the graph on the board you've talked about -- this is, I 18 guess, out of Exhibit 7 prepared by Spreck Rosekrans from 19 EDF for Save San Francisco Bay Association. And it is the 20 first of the graphs in that exhibit. 21 Calling your attention to the natural hydrograph 22 that you've talked about, looking at the San Joaquin River 23 graph and the Sacramento River graph, which of the two of 24 them is the most like what you believe ought to happen? 25 MS. ANDREWS: Well, the two graphs that are shown are CAPITOL REPORTERS (916) 923-5447 9444 1 similar in that each have a peak at a certain point in the 2 year. On the upper graph, which shows the San Joaquin, 3 that peak is approximately in May. In the Sacramento it 4 appears to be in March. 5 On the Sacramento you can see that there is still 6 a flood peak that comes through the system at approximately 7 the same time that even approaches the approximate, I 8 assume this is the 30-day mean average for the month. 9 On the San Joaquin, the peak flow for the spring 10 period is very much suppressed. You get just a tiny blip 11 in the vicinity of the month of May. I would say that the 12 Sacramento graph on the bottom shows a closer similarity to 13 the predevelopment flood hydrograph that would have existed 14 predevelopment and would have created the conditions of the 15 species on the river have evolved in response to. 16 MR. JACKSON: Would you expect then that the 17 Sacramento River would have more natural conditions than 18 the San Joaquin from looking at those graphs? 19 MS. ANDREWS: On the basis of the hydrograph alone I 20 would expect it to retain more of the kind of ecosystem 21 functions that I identified as being driven by flow, the 22 flow regime. 23 MR. JACKSON: Thank you. 24 C.O. STUBCHAER: While Mr. Jackson is changing the 25 chart, you said "flood hydrograph." I thought these were CAPITOL REPORTERS (916) 923-5447 9445 1 flow hydrographs. I thought a flood was a single high 2 event and you said 30-day averages so -- 3 MS. ANDREWS: The terminology is a bit inexact. Some 4 people might call it "flow," some people might call that a 5 flooding. A spring high flow condition is certainly 6 sometimes referred to as a spring flood event that lasts 7 for 30 or 60 days. 8 C.O. STUBCHAER: And then a minor correction point, 9 you referred to the Sacramento River in the upper graph 10 previously when you said, May, it would peak in May. I 11 think you meant San Joaquin. 12 MS. ANDREWS: Yes. Thank you. 13 MR. JACKSON: Now, calling your attention to the 14 graph that is on the wall, it's from Exhibit 7 prepared by 15 Spreck Rosekrans of EDF for Save San Francisco Bay. This 16 is a dry year and the upper graph shows San Joaquin River 17 Basin outflow unimpaired and then shows the VAMP May pulse. 18 On the bottom of the graph is the Sacramento Basin 19 outflow for dry years and the 1995 Water Quality Control 20 Plan DWRSIM Study 549 New. Can you make a comparison, in 21 terms of the hydrograph as it exists today, which of the 22 two rivers seems to be the more likely unimpaired 23 hydrograph? 24 MR. BIRMINGHAM: Objection. 25 C.O. STUBCHAER: State the basis. CAPITOL REPORTERS (916) 923-5447 9446 1 MR. BIRMINGHAM: It is that Mr. Jackson's question 2 assumes facts that are not in evidence. He asked a similar 3 question a few moments ago and the response of the witness 4 indicated that the witness isn't sure what is in these 5 graphs. I thought that she, perhaps, would explain to us 6 what is in the graphs. 7 Now Mr. Jackson is asking another question, based 8 upon the response of the witness to the earlier question I 9 don't think that this witness can tell us what these graphs 10 depict. Mr. Jackson doesn't know what they depict. And so 11 I'm going to object on the grounds that the question 12 assumes facts not in evidence. 13 C.O. STUBCHAER: Mr. Jackson, perhaps, you can make a 14 hypothetical at this point and then if the graphs are 15 later -- 16 MR. BIRMINGHAM: Perhaps, Mr. Stubchaer -- 17 C.O. STUBCHAER: Excuse me for a moment. 18 MR. JACKSON: Have you ever seen these graphs before, 19 Ms. Andrews? 20 MS. ANDREWS: Yes, I have. 21 MR. JACKSON: Have you compared the -- have you 22 looked at the comparison between the outflow on the San 23 Joaquin and the Sacramento basin both in unimpaired flows 24 and as they are today? 25 MS. ANDREWS: Yes. And I certainly say that I'm not CAPITOL REPORTERS (916) 923-5447 9447 1 familiar with all 12 of the data points on each line for 2 each river for each of the flow conditions depicted. And 3 if that makes it seem as though I'm not familiar with the 4 graphs, I'm sorry, that's just my brain. I have to 5 actually look at them. 6 MR. BIRMINGHAM: But, Mr. Stubchaer, I think the 7 problem that we have -- and maybe I don't know what these 8 graphs are -- but on the graphs there is an unimpaired flow 9 and then there is a curve that represents a model run. 10 That's what it appears as from these graphs. 11 The witness seems to be saying that -- if this is 12 her testimony then I guess it's her testimony -- but the 13 witness seems to be saying that the curve is represented by 14 something other than the unimpaired flow, is a calculated 15 flow in these basins. And I don't think that there's been 16 any evidence to that effect. 17 MS. KOEHLER: Mr. Chairman? 18 C.O. STUBCHAER: Ms. Koehler. 19 MS. KOEHLER: Thank you. I think some of the 20 difficulty here has to do with our not being able to 21 present these charts. If I can suggest that maybe 22 that Mr. Jackson has just gotten a little ahead of himself 23 and maybe we just need to walk through these graphs, 24 because my understanding is that Ms. Andrews is quite 25 familiar with the data in these graphs and can elucidate. CAPITOL REPORTERS (916) 923-5447 9448 1 And rather than have the other attorneys for the 2 other parties try to do her testimony for her, I think it 3 would make sense to more clearly identify the data on these 4 charts and then we can go to the conclusions that 5 Mr. Jackson is trying to get. 6 MR. JACKSON: One of the problems is, of course, 7 after Mr. Rosekrans testifies on the 9th, I would be able 8 to do this with this witness. I asked -- I mean -- 9 C.O. STUBCHAER: Yeah, it seems to me, if I could 10 make a suggestion, I don't know if it's appropriate or not, 11 but you have the unimpaired flow in the San Joaquin and 12 then the VAMP May pulse flow in the San Joaquin, so you can 13 say: 14 Assuming that that is the flow that would exist in 15 a dry year under the VAMP proposal, which is high, or 16 something like that. And then the hypothetical would be -- 17 would be made a nonhypothetical when Mr. Rosekrans 18 testifies later. 19 Does that work? I guess not. 20 MR. JACKSON: Let me try one and we'll see if we're 21 on the same table. 22 Ms. Andrews, you testified that in your opinion 23 it's important that some level of comparability in terms of 24 peak flows be consistent to unimpaired flows; is that 25 correct? CAPITOL REPORTERS (916) 923-5447 9449 1 MS. ANDREWS: It's my testimony that there are 2 certain aspects of the flow regime that drive key ecosystem 3 functions. We probably can't replicate the magnitude of 4 predevelopment flow conditions on any of the rivers in this 5 system, but it's important to make an assessment of what 6 ecosystem functions we will want to enhance and what flows 7 will be required to do that. 8 MR. JACKSON: Calling your attention to the flow 9 that -- the graph from Exhibit 7 and the flow on the San 10 Joaquin River Basin in dry years, is the elevation of the 11 flow under VAMP May pulse from VAMPVERN.WK4 from 2,000 csf 12 to 4,000 csf capable of doing what was done by nature with 13 a 15,000 csf flow? 14 MS. ANDREWS: I haven't looked at any information 15 that would allow me to make that detailed of finding. 16 MR. JACKSON: All right. Mr. Keir, I believe that 17 you testified in your testimony that you are here to talk 18 about temperature; is that correct? 19 MR. KEIR: That is correct. 20 MR. JACKSON: And I believe you indicated that in 21 doing so among the things that you are relying on is Save 22 the Bay's Exhibit Number 5 the "Status of San Joaquin 23 Drainage, Chinook Salmon Stocks, Habitat Conditions and 24 Natural Production Factors," of July 1987 prepared for the 25 State Water Resources Control Board, Bay-Delta Hearing CAPITOL REPORTERS (916) 923-5447 9450 1 process in September of 1987 by the California Department 2 of Fish and Game. 3 Is that correct? 4 MR. KEIR: That is correct. 5 MR. JACKSON: Calling your attention to your 6 testimony, on Page 3 of your testimony in the last sentence 7 of the second paragraph you state that, in your opinion, 8 (Reading): 9 "The data clearly establishes that flows at 10 Vernalis must be maintained at or above 5,000 11 csf in order to keep water temperatures below 68 12 degrees Fahrenheit." 13 Is that correct? 14 MR. KEIR: That is correct. 15 MR. JACKSON: Why is it important, sir, to keep water 16 temperatures below 68 degrees Fahrenheit? 17 MR. KEIR: Because as the Department of Fish and 18 Game's exhibit makes clear this is the temperature, 68 19 degrees, at which juvenile salmon become stressed by the 20 temperature. We call this thermal stress. 21 MR. JACKSON: What effect does thermal stress have on 22 juvenile salmon? 23 MR. KEIR: It can lead to any number of loss of 24 vitality, or -- I'll stop at that, loss of vitality. It 25 can then lead to not being able to forage properly to not CAPITOL REPORTERS (916) 923-5447 9451 1 being able to avoid predators properly and, therefore, 2 their mortality. So that temperature stress can take a 3 very heavy toll on the juvenile salmon trying to get out of 4 a river system such as the San Joaquin. 5 MR. JACKSON: Now, calling your attention to Exhibit 6 7 the outflow comparison that is on the screen at the 7 present time and taking a look at the San Joaquin River 8 Basin outflow for May, what is the modeled csf in a dry 9 year? 10 MR. KEIR: I'm sorry, Mr. Jackson. Are you referring 11 to the lower line? 12 MR. JACKSON: No, the upper -- yeah, the lower line 13 on the upper graph. 14 MR. KEIR: This shows that flows do not rise above 15 4,000 cubic-feet per second, which is significantly lower 16 than the 5,000 foot minimum, 5,000 cubic-foot per second 17 minimum recommended by the Department of Fish and Game. 18 MR. JACKSON: Would that 20-percent deviation from 19 the minimum number be likely to cause chronic temperature 20 stress on salmon immigrating through that area? 21 MR. KEIR: In the month of May I certainly would 22 expect it to. And June, I might add. 23 MR. JACKSON: Mr. Keir, calling your attention to the 24 outflow comparison from Exhibit 7 of Save the Bay's 25 testimony from the San Joaquin River, calling your CAPITOL REPORTERS (916) 923-5447 9452 1 attention to the month of May in a critical year, what is 2 the csf which the model shows would be present? 3 MR. KEIR: Something on the order of 2,000 cubic-feet 4 per second at the most. 5 MR. JACKSON: And what would be, in your opinion, the 6 effects of the 2,000 csf on temperature -- of temperature 7 on immigrating salmon smolts? 8 MR. KEIR: In my opinion immigrating juvenile salmon 9 would be severely stressed and that survival would be very 10 poor in such a year. 11 MR. JACKSON: Now, calling your attention to the 12 modeling, there are other months on the chart, are there 13 not? 14 MR. KEIR: Certainly. 15 MR. JACKSON: And 2,000 seems to be in a critical 16 year on the San Joaquin River Basin outflow according to 17 the VAMPVERN run to be the maximum, does it not? 18 MR. KEIR: Looks that way from here. 19 MR. JACKSON: Now, you've indicated that salmon fry 20 are in the river, in the San Joaquin River in months other 21 than May? 22 MR. KEIR: That's right. My testimony was that 23 juvenile salmon leave their home streams and move into the 24 San Joaquin as early as January. And that the outmigration 25 period of juvenile salmon extends through June. CAPITOL REPORTERS (916) 923-5447 9453 1 MR. JACKSON: Now, would the temperature stress from 2 low flows be the same in June as it is in May? 3 MR. KEIR: No. I would expect that temperatures 4 would be higher in June and stress would be greater in June 5 than in May. 6 MR. JACKSON: Would there be appreciable differences 7 in the temperature between April and May? 8 MR. KEIR: Some, some. The Department's exhibit, as 9 you'll see when you look at it, suggests that the 10 relationship between flow and temperature was strongest in 11 May, but that there was a fairly strong relationship in 12 April. And I would assume that in a year like this 13 critically dry one shown up here that you would have 14 mortalities beginning in April. 15 C.O. STUBCHAER: Mr. O'Laughlin. 16 MR. O'LAUGHLIN: Mr. Stubchaer, I'd like to object to 17 this testimony. Basically what Mr. Keir is doing is 18 testifying about a temperature as an objective and as far 19 as I know under the 1995 Water Quality Control Plan there 20 is no temperature objective at Vernalis. 21 Secondly, the other thing I would like to point 22 out is that Mr. Keir's testimony, based on what Mr. Jackson 23 has elucidated from Keir, sets the minimum flow of 5,000 24 csf. Now, my understanding is the 1995 Water Quality 25 Control Plan doesn't have such a standard or objective at CAPITOL REPORTERS (916) 923-5447 9454 1 Vernalis. 2 All of this testimony may be extremely relevant in 3 a tri annual review or under the Porter-Cologne Act, but 4 certainly it isn't relevant if we are looking at 5 implementing the standards for the 1995 Water Quality 6 Control Plan, because he's already testified that those 7 standards aren't applicable. 8 C.O. STUBCHAER: Ms. Koehler. 9 MS. KOEHLER: Thank you, Mr. Chairman. Mr. Keir has 10 offered this testimony with regard to temperature not only 11 in relation to the best way to meet the Vernalis standard 12 which is very much the subject of this hearing, but also to 13 make the point that meeting the Vernalis standard will not 14 be sufficient to meet the narrative standard, which is also 15 part of the 1995 Water Quality Control Plan. 16 Nobody is here testifying that there is a 17 temperature requirement, but the narrative standard is an 18 expressed part of the plan and it is appropriate to discuss 19 here in this proceeding when we're looking at the 20 alternatives to the San Joaquin River Agreement, the 21 efficacy of that agreement and the alternatives to meet the 22 narrative standard and that is what Mr. Keir is doing and 23 his testimony is, therefore, relevant. 24 C.O. STUBCHAER: Mr. O'Laughlin. 25 MR. O'LAUGHLIN: Well, briefly again, then, if CAPITOL REPORTERS (916) 923-5447 9455 1 Mr. Keir is testifying that the 1995 Water Quality Control 2 Plan doesn't meet the narrative standard, I'd ask that that 3 all be stricken, too, because that's irrelevant because 4 that also goes to the underlying Porter-Cologne. 5 My assumption is that the 1995 Water Quality 6 Control Plan was adopted to implement the -- as the 7 narrative standard. So if his testimony is that by its 8 very nature the 1995 Water Quality Control Plan does not 9 meet the narrative standard, that's perfectly acceptable in 10 the Porter-Cologne hearing, but it's not acceptable here. 11 MS. KOEHLER: That's not what I said and that's not 12 what Mr. Keir's testimony said. The narrative standard is 13 part of the 1995 Water Quality Control Plan. 14 The issue that we are addressing in this 15 proceeding, which deals with the San Joaquin River 16 Agreement and other alternatives to meet the Vernalis 17 standard is whether that agreement and those other 18 alternatives are surrogates for and will in themselves -- 19 and whether compliance with those will in themselves comply 20 with the narrative standard which is part of the 1995 Water 21 Quality Control Plan. 22 C.O. STUBCHAER: I think the questioning is relevant. 23 And, Mr. O'Laughlin, and others you can have -- when you 24 get your chance to cross-examine or rebut, you may dispute 25 the statements. CAPITOL REPORTERS (916) 923-5447 9456 1 MR. KEIR: Thank you. 2 C.O. STUBCHAER: Mr. Jackson, continue. 3 MR. JACKSON: Mr. Keir, why is water temperature of 4 over 68 degrees Fahrenheit harmful to fish? 5 MR. O'LAUGHLIN: Mr. Chairman, that's been asked and 6 answered. 7 C.O. STUBCHAER: Yeah. Sustained. 8 MR. JACKSON: All right. I'll step on to the next 9 one. Assuming now that the temperature in the San Joaquin 10 River at Vernalis is above 68 degrees Fahrenheit, what 11 would be the effect on fry and smolts reaching water of 12 that temperature? 13 MR. KEIR: I think I've answered that question, too, 14 Mr. Jackson, that they would be less able to fend off 15 predators, less able to forage successfully, less tolerant 16 of disease organisms that we might be seeing from 17 wastewater treatment plants or whatever. 18 MR. JACKSON: Will the immigrating fish go through 19 water temperatures above 68 degrees Fahrenheit? 20 MR. KEIR: Yes, they can make it through, but they 21 are impaired as a result of passing through that kind of 22 water. 23 MR. JACKSON: All right. Thank you. I have no 24 further questions. 25 C.O. STUBCHAER: Thank you, Mr. Jackson. CAPITOL REPORTERS (916) 923-5447 9457 1 Mr. O'Laughlin. 2 MR. O'LAUGHLIN: Mr. Stubchaer, if I might, can we 3 get a brief discussion about what the schedule is going to 4 be from here on in? Rather than start my -- I have 5 probably a minimum of two or three hours with these 6 witnesses, excluding Mr. Rosekrans, and maybe upwards to 7 four or five, if the Chair would allow. 8 Since this is the first proposal to have 9 alternative five, I'd like to know -- my understanding is 10 that these witnesses cannot come back tomorrow and we've 11 scheduled some other witnesses. So I'd like to maybe go 12 and have a scheduling conference and then I'll be ready 13 first thing tomorrow morning for the next witness. I'm not 14 going to finish these two today. 15 MS. KOEHLER: Point of clarification? 16 C.O. STUBCHAER: Ms. Koehler. 17 MS. KOEHLER: Mr. Chairman, I don't believe either 18 witness has said -- and perhaps this is the matter of 19 confusion -- that they are advocating that this Board adopt 20 alternative five. They have testified quite clearly in 21 their written and direct today that that is the alternative 22 that would have the best opportunity of establishing this 23 Board's broader restoration goals of meeting the narrative 24 standard. 25 But I don't want Mr. O'Laughlin to misunderstand, CAPITOL REPORTERS (916) 923-5447 9458 1 the import of their testimony and as I indicated in Save 2 the Bay's opening statement, we have made other 3 recommendations with regard to the San Joaquin River 4 Agreement. So -- just so we're all clear about -- 5 C.O. STUBCHAER: While you're standing, would you 6 repeat the availability of your witnesses, please. 7 MS. KOEHLER: We're not available tomorrow. I 8 believe we can be here Thursday. I was hoping to avoid 9 that because -- since we are coming from the Bay Area, it's 10 a considerable effort and Thursday is only a half day, I'm 11 a little reluctant to produce them because I will almost 12 certainly have to produce them again. So if it is 13 convenient, we would prefer to do this all on one day. 14 C.O. STUBCHAER: Are you going to be here for the 15 workshop Thursday afternoon? 16 MS. KOEHLER: If I can be. 17 C.O. STUBCHAER: All right. Going to staff, could 18 you refresh my recollection on what commitments we made for 19 parties to testify tomorrow? We were going to do that with 20 Central San Joaquin, but they were taken care of last time. 21 Do we have any others that we've given a date 22 certain? 23 MS. LEIDIGH: Alex Hildebrand still needs to finish 24 being cross-examined. 25 C.O. STUBCHAER: And we have Mr. Brandt's policy CAPITOL REPORTERS (916) 923-5447 9459 1 statement. I don't know if we're ever going to do that. 2 He's the most patient person I know. 3 Anything else? 4 MEMBER DEL PIERO: He's gotten the Chair broken in. 5 MR. O'LAUGHLIN: Mr. Stubchaer, I believe we have 6 City of Stockton still left to go, depending on what they 7 want to do. And Stockton East Water District, depending on 8 what they want to do. And that's my understanding of the 9 scope of who would be available tomorrow. 10 C.O. STUBCHAER: Now, tomorrow morning Assemblyman 11 Machado is going to be here tomorrow at 9:00 o'clock to 12 make a policy statement. And Stockton East has asked to 13 follow Assemblyman Machado's presentation. So without 14 objection we'll take that order tomorrow. 15 Mr. O'Laughlin, are you going to object? 16 MR. O'LAUGHLIN: Oh, no, not for an assemblyman, I'd 17 get in trouble. Is NHI going to present testimony? 18 UNIDENTIFIED MAN: Yes, we will be presenting 19 testimony. 20 MR. O'LAUGHLIN: That's the only one left out there. 21 So I think tomorrow is probably going to be a short day. 22 MR. NOMELLINI: We're got five hours left of 23 Hildebrand. 24 MR. O'LAUGHLIN: Oh, I'm done with Mr. Hildebrand. 25 MEMBER DEL PIERO: Who is left to cross-examine CAPITOL REPORTERS (916) 923-5447 9460 1 Mr. Hildebrand? 2 MR. O'LAUGHLIN: Mr. Birmingham is the only one left 3 to cross-examine Mr. Hildebrand. 4 MEMBER DEL PIERO: Mr. Chairman? 5 C.O. STUBCHAER: Mr. Del Piero. 6 MEMBER DEL PIERO: You mind if I inquire of 7 Mr. Birmingham of how long he anticipates taking with 8 Mr. Hildebrand? 9 C.O. STUBCHAER: I don't mind at all. 10 MEMBER DEL PIERO: How long do you intend to take 11 with Mr. Hildebrand, sir? You take this long to tell your 12 wife what you want for Christmas? 13 MR. BIRMINGHAM: I got what I wanted for Christmas. 14 MR. KEIR: Spit it up, you may get what you want. 15 MR. BIRMINGHAM: At the risk of incurring the wrath 16 of the Hearing Officer, I am almost tempted to say that I 17 would not finish my cross-examination of Mr. Hildebrand. 18 To be real candid, the Board has heard virtually all of 19 this before, I think it would be a waste of time to hear it 20 again. 21 C.O. STUBCHAER: To hear what again? 22 MR. BIRMINGHAM: To hear Mr. Hildebrand and I go over 23 the same ground again and again and again. So unless 24 Mr. Hildebrand -- there's only one series of questions that 25 I was going to ask Mr. Hildebrand on my cross-examination, CAPITOL REPORTERS (916) 923-5447 9461 1 that was his interpretation of the water transfer 2 provisions of the CVPIA, which he testified to and his 3 comment about the egregious conduct of the attorneys for 4 the United States, but I'm not sure how relevant that is. 5 MEMBER DEL PIERO: How long? 6 MR. BIRMINGHAM: Well, that could take three or four 7 hours. 8 MEMBER DEL PIERO: Yeah. 9 MR. BIRMINGHAM: No, I think I have less than an hour 10 if I cover everything that I intended to cover. 11 C.O. STUBCHAER: And we're not taking this as a 12 stipulation, we're just trying to find out for planning 13 purposes. 14 MR. BIRMINGHAM: But what I'm suggesting, 15 Mr. Stubchaer, is if the time can be spent more productive 16 doing other things, I would just withdraw from any further 17 cross-examination. 18 C.O. STUBCHAER: All right. 19 MEMBER DEL PIERO: It may be a light day tomorrow. 20 C.O. STUBCHAER: Well, do we ask Mr. Hildebrand to be 21 here tomorrow, or will you be here in any event, 22 Mr. Hildebrand? It's so fascinating you can't stand to be 23 away. 24 MR. HILDEBRAND: It isn't my favorite occupation, 25 but, yes, I can be here tomorrow. But I was thinking it CAPITOL REPORTERS (916) 923-5447 9462 1 would be after lunch if you get around to me. 2 C.O. STUBCHAER: Yes. 3 MR. BIRMINGHAM: Then if Mr. Hildebrand is going to 4 be here, I will conclude my cross-examination and it will 5 take less than a hour. 6 C.O. STUBCHAER: Very good. 7 MR. HERRICK: Mr. Chairman, I'm sorry. Who would be 8 in the morning if not Mr. Hildebrand? 9 C.O. STUBCHAER: It would be Assemblyman Machado, 10 Stockton East and I don't know how much cross-examination 11 will follow from that. As you know we cannot predict that. 12 MR. HERRICK: Thank you. 13 C.O. STUBCHAER: Then we had the City of Stockton. 14 Is the City of Stockton representative -- 15 MR. O'LAUGHLIN: They're outside. 16 MS. WHITNEY: She's here. 17 MEMBER DEL PIERO: Could somebody ask them to come in 18 for a moment? 19 MR. NOMELLINI: My understanding was they had opening 20 statements, but no presentation of evidence. Shouldn't 21 take more than 20 minutes 22 C.O. STUBCHAER: Well, then they can state that, but 23 I didn't have that noted. 24 MR. NOMELLINI: Okay, I may be wrong. Every time I 25 question your memory, I'm wrong. CAPITOL REPORTERS (916) 923-5447 9463 1 C.O. STUBCHAER: Not every time. 2 MR. BIRMINGHAM: Mr. Del Piero, there's one thing I 3 need to also clarify. Although I got what I wanted for 4 Christmas, it won't arrive until August 27th. 5 MEMBER DEL PIERO: Well, I know what that package is. 6 C.O. STUBCHAER: A new Mercedes from Germany? 7 MEMBER DEL PIERO: No, no. A new baby. That's a 8 good present. 9 C.O. STUBCHAER: So, then, Ms. Koehler, your panel 10 would be back here then Thursday morning. 11 MS. KOEHLER: Okay. We -- we certainly can 12 accommodate that. My expectation though it sounds like we 13 will also have to be back on the 9th since it sounds like 14 we have four hours of cross-examination from Mr. O'Laughlin 15 alone. 16 C.O. STUBCHAER: Well, Mr. O'Laughlin? 17 MR. O'LAUGHLIN: I understand and I have empathy for 18 the witnesses and for Save the Bay. However, we have a 19 hearing scheduled to go with and we have been trying to the 20 best of our abilities to pack as many minutes as possible 21 into the hearing days that we do have. 22 I think it's very important that even though we 23 got kind of a little crack tomorrow afternoon, that we 24 proceed right forward on Thursday with Save the Bay, finish 25 them up when they come back on February 9th, as we have CAPITOL REPORTERS (916) 923-5447 9464 1 done with every other witness and then proceed forward with 2 NHI and then rebuttal testimony. 3 Because, otherwise, what is going to happen is 4 we'll have a afternoon free tomorrow afternoon and we're 5 going to have a morning free on Thursday morning. I also 6 have a question that I need to work out in regards to the 7 workshop on Thursday afternoon. 8 C.O. STUBCHAER: All right. What's your question 9 with regard to the workshop? 10 MR. O'LAUGHLIN: My understanding is that we are 11 allowed to present discussion and policy in regards to 12 phasing the workshop. We are planning on having four to 13 five legislators here on Thursday at 1:00 to give their 14 views on phasing to orders. 15 I was wondering if the Chair would provide us with 16 a prerogative that if those legislators do appear that they 17 would be allowed to give their speeches before the other 18 parties do? 19 C.O. STUBCHAER: That's almost a standing courtesy 20 that the Board allows to legislators and other 21 constitutional officers. 22 MR. O'LAUGHLIN: Thank you. 23 C.O. STUBCHAER: But that probably assures that we 24 won't finish the workshop on Thursday afternoon. Has 25 everyone received the notice of the workshop, the workshop CAPITOL REPORTERS (916) 923-5447 9465 1 to discuss the phasing of the hearing? 2 THE AUDIENCE: Yes. 3 C.O. STUBCHAER: Good. And it's on the web also for 4 those of you who have not seen it. 5 MS. KOEHLER: Mr. Chairman? 6 C.O. STUBCHAER: Ms. Koehler. 7 MS. KOEHLER: I'm sorry. If you're expecting the 8 workshop to take more than the afternoon, perhaps, you 9 would like to devote all of Thursday to it? 10 C.O. STUBCHAER: No, it's noticed. 11 MS. KOEHLER: Just checking. 12 MR. O'LAUGHLIN: Nice try. 13 C.O. STUBCHAER: No. As you know we try to 14 accommodate the parties, but sometimes we just have to -- 15 MS. KOEHLER: I understand. 16 C.O. STUBCHAER: And, Ms. Cahill, regarding the City 17 of Stockton? 18 MS. CAHILL: Yes. I'm assuming if Assemblyman 19 Machado goes first tomorrow, then it would be the 20 Department of the Interior -- 21 C.O. STUBCHAER: Stockton East follows them. 22 MS. CAHILL: Okay. And we would follow Stockton 23 East? 24 C.O. STUBCHAER: Yes. 25 MS. CAHILL: That would be fine. CAPITOL REPORTERS (916) 923-5447 9466 1 C.O. STUBCHAER: You would be prepared tomorrow? 2 MS. CAHILL: Yes. 3 C.O. STUBCHAER: Very good. 4 MR. NOMELLINI: Are you going to put evidence on, or 5 just an opening statement? 6 MS. CAHILL: I'm not expecting to put on witnesses. 7 C.O. STUBCHAER: Okay. You were right. 8 MR. BRANDT: We're going to be done half day. 9 MEMBER DEL PIERO: Gee, what a novel idea. 10 C.O. STUBCHAER: Okay. Any other things to discuss 11 here before we adjourn for the day? Seeing none, we're 12 adjourned until 9:00 tomorrow. 13 (The proceedings concluded at 3:51 p.m.) 14 ---oOo--- 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 9467 1 REPORTER'S_CERTIFICATE __________ ___________ 2 3 STATE OF CALIFORNIA ) ) ss. 4 COUNTY OF SACRAMENTO ) 5 I, MARY R. GALLAGHER, certify that I was the 6 Official Court Reporter for the proceedings named herein, 7 and that as such reporter I reported in verbatim shorthand 8 writing those proceedings; that I thereafter caused my 9 shorthand writing to be reduced to typewriting, and the 10 pages numbered 9265 through 9467 herein constitute a 11 complete, true and correct record of the proceedings. 12 IN WITNESS WHEREOF, I have subscribed this 13 certificate at Sacramento, California, on this 14th day of 14 February, 1999. 15 16 ________________________________ MARY R. GALLAGHER, CSR #10749 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 9468