STATE WATER RESOURCES CONTROL BOARD PUBLIC HEARING 1998 BAY-DELTA WATER RIGHTS HEARING HELD AT: BONDERSON BUILDING 901 P STREET SACRAMENTO, CALIFORNIA WEDNESDAY, JANUARY 27, 1999 9:00 A.M. Reported by: ESTHER F. WIATRE CSR NO. 1564 CAPITOL REPORTERS (916) 923-5447 1 APPEARANCES BOARD MEMBERS: 2 JAMES STUBCHAER, COHEARING OFFICER 3 JOHN W. BROWN, COHEARING OFFICER MARY JANE FORSTER 4 MARC DEL PIERO 5 STAFF MEMBERS: 6 WALTER PETTIT, EXECUTIVE DIRECTOR VICTORIA WHITNEY, CHIEF BAY-DELTA UNIT 7 THOMAS HOWARD, SUPERVISING ENGINEER 8 COUNSEL: 9 WILLIAM R. ATTWATER, CHIEF COUNSEL BARBARA LEIDIGH 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 PRINCETON CODORA GLENN IRRIGATION DISTRICT, et al.: 3 FROST, DRUP & ATLAS 134 West Sycamore Street 4 Willows, California 95988 BY: J. MARK ATLAS, ESQ. 5 JOINT WATER DISTRICTS: 6 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON: 7 P.O. BOX 1679 Oroville, California 95965 8 BY: WILLIAM H. BABER III, ESQ. 9 CALIFORNIA SPORTFISHING PROTECTION ALLIANCE: 10 ROBERT J. BAIOCCHI P.O. Box 357 11 Quincy, California 12 BELLA VISTA WATER DISTRICT: 13 BRUCE L. BELTON, ESQ. 2525 Park Marina Drive, Suite 102 14 Redding, California 96001 15 WESTLANDS WATER DISTRICT: 16 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 400 Capitol Mall, 27th Floor 17 Sacramento, California 95814 BY: THOMAS W. BIRMINGHAM, ESQ. 18 and AMELIA MINABERRIGARAI, ESQ. 19 THE BAY INSTITUTE OF SAN FRANCISCO: 20 GARY BOBKER 21 55 Shaver Street, Suite 330 San Rafael, California 94901 22 CITY OF ANTIOCH, et al.: 23 FREDERICK BOLD, JR., ESQ. 24 1201 California Street, Suite 1303 San Francisco, California 94109 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 LEAGUE OF WOMEN VOTERS: 3 ROBERTA BORGONOVO 2480 Union Street 4 San Francisco, California 94123 5 UNITED STATES DEPARTMENT OF THE INTERIOR: 6 OFFICE OF THE SOLICITOR 2800 Cottage Way, Room E1712 7 Sacramento, California 95825 BY: ALF W. BRANDT, ESQ. 8 CALIFORNIA URBAN WATER AGENCIES: 9 BYRON M. BUCK 10 455 Capitol Mall, Suite 705 Sacramento, California 95814 11 RANCHO MURIETA COMMUNITY SERVICES DISTRICT: 12 MCDONOUGH, HOLLAND & ALLEN 13 555 Capitol Mall, 9th Floor Sacramento, California 95814 14 BY: VIRGINIA A. CAHILL, ESQ. 15 CALIFORNIA DEPARTMENT OF FISH AND GAME: 16 OFFICE OF ATTORNEY GENERAL 1300 I Street, Suite 1101 17 Sacramento, California 95814 BY: MATTHEW CAMPBELL, ESQ. 18 NATURAL RESOURCES DEFENSE COUNCIL: 19 HAMILTON CANDEE, ESQ. 20 71 Stevenson Street San Francisco, California 94105 21 ARVIN-EDISON WATER STORAGE DISTRICT, et al.: 22 DOOLEY HERR & WILLIAMS 23 3500 West Mineral King Avenue, Suite C Visalia, California 93291 24 BY: DANIEL M. DOOLEY, ESQ. 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 SACRAMENTO MUNICIPAL UTILITY DISTRICT: 3 LESLIE A. DUNSWORTH, ESQ. 6201 S Street 4 Sacramento, California 95817 5 SOUTH SAN JOAQUIN IRRIGATION DISTRICT, et al.: 6 BRAY, GEIGER, RUDQUIST & NUSS 311 East Main Street, 4th Floor 7 Stockton, California 95202 BY: STEVEN P. EMRICK, ESQ. 8 EAST BAY MUNICIPAL UTILITY DISTRICT: 9 EBMUD OFFICE OF GENERAL COUNSEL 10 375 Eleventh Street Oakland, California 94623 11 BY: FRED S. ETHERIDGE, ESQ. 12 GOLDEN GATE AUDUBON SOCIETY: 13 ARTHUR FEINSTEIN 2530 San Pablo Avenue, Suite G 14 Berkeley, California 94702 15 CONAWAY CONSERVANCY GROUP: 16 UREMOVIC & FELGER P.O. Box 5654 17 Fresno, California 93755 BY: WARREN P. FELGER, ESQ. 18 THOMES CREEK WATER ASSOCIATION: 19 THOMES CREEK WATERSHED ASSOCIATION 20 P.O. Box 2365 Flournoy, California 96029 21 BY: LOIS FLYNNE 22 COURT APPOINTED REPS OF WESTLANDS WD AREA 1, et al.: 23 LAW OFFICES OF SMILAND & KHACHIGIAN 601 West Fifth Street, Seventh Floor 24 Los Angeles, California 90075 BY: CHRISTOPHER G. FOSTER, ESQ. 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 CITY AND COUNTY OF SAN FRANCISCO: 3 OFFICE OF THE CITY ATTORNEY 1390 Market Street, Sixth Floor 4 San Francisco, California 94102 BY: DONN W. FURMAN, ESQ. 5 CAMP FAR WEST IRRIGATION DISTRICT, et al.: 6 DANIEL F. GALLERY, ESQ. 7 926 J Street, Suite 505 Sacramento, California 95814 8 BOSTON RANCH COMPANY, et al.: 9 J.B. BOSWELL COMPANY 10 101 West Walnut Street Pasadena, California 91103 11 BY: EDWARD G. GIERMANN 12 SAN JOAQUIN RIVER GROUP AUTHORITY, et al.: 13 GRIFFTH, MASUDA & GODWIN 517 East Olive Street 14 Turlock, California 95381 BY: ARTHUR F. GODWIN, ESQ. 15 NORTHERN CALIFORNIA WATER ASSOCIATION: 16 RICHARD GOLB 17 455 Capitol Mall, Suite 335 Sacramento, California 95814 18 PLACER COUNTY WATER AGENCY, et al.: 19 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 20 400 Capitol Mall, 27th Floor Sacramento, California 95814 21 BY: JANET GOLDSMITH, ESQ. 22 ENVIRONMENTAL DEFENSE FUND: 23 DANIEL SUYEYASU, ESQ. and 24 THOMAS J. GRAFF, ESQ. 5655 College Avenue, Suite 304 25 Oakland, California 94618 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 CALAVERAS COUNTY WATER DISTRICT: 3 SIMON GRANVILLE P.O. Box 846 4 San Andreas, California 95249 5 CHOWCHILLA WATER DISTRICT, et al.: 6 GREEN, GREEN & RIGBY P.O. Box 1019 7 Madera, California 93639 BY: DENSLOW GREEN, ESQ. 8 CALIFORNIA FARM BUREAU FEDERATION: 9 DAVID J. GUY, ESQ. 10 2300 River Plaza Drive Sacramento, California 95833 11 SANTA CLARA VALLEY WATER DISTRICT: 12 MORRISON & FORESTER 13 755 Page Mill Road Palo Alto, California 94303 14 BY: KEVIN T. HAROFF, ESQ. 15 CITY OF SHASTA LAKE: 16 ALAN N. HARVEY P.O. Box 777 17 Shasta Lake, California 96019 18 COUNTY OF STANISLAUS: 19 MICHAEL G. HEATON, ESQ. 926 J Street 20 Sacramento, California 95814 21 GORRILL LAND COMPANY: 22 GORRILL LAND COMPANY P.O. Box 427 23 Durham, California 95938 BY: DON HEFFREN 24 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 SOUTH DELTA WATER AGENCY: 3 JOHN HERRICK, ESQ. 3031 West March Lane, Suite 332 East 4 Stockton, California 95267 5 COUNTY OF GLENN: 6 NORMAN Y. HERRING 525 West Sycamore Street 7 Willows, California 95988 8 REGIONAL COUNCIL OF RURAL COUNTIES: 9 MICHAEL B. JACKSON, ESQ. 1020 Twelfth Street, Suite 400 10 Sacramento, California 95814 11 DEER CREEK WATERSHED CONSERVANCY: 12 JULIE KELLY P.O. Box 307 13 Vina, California 96092 14 DELTA TRIBUTARY AGENCIES COMMITTEE: 15 MODESTO IRRIGATION DISTRICT P.O. Box 4060 16 Modesto, California 95352 BY: BILL KETSCHER 17 SAVE THE SAN FRANCISCO BAY ASSOCIATION: 18 SAVE THE BAY 19 1736 Franklin Street Oakland, California 94612 20 BY: CYNTHIA L. KOEHLER, ESQ. 21 BATTLE CREEK WATERSHED LANDOWNERS: 22 BATTLE CREEK WATERSHED CONSERVANCY P.O. Box 606 23 Manton, California 96059 24 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 BUTTE SINK WATERFOWL ASSOCIATION, et al.: 3 MARTHA H. LENNIHAN, ESQ. 455 Capitol Mall, Suite 300 4 Sacramento, California 95814 5 CITY OF YUBA CITY: 6 WILLIAM P. LEWIS 1201 Civic Center Drive 7 Yuba City 95993 8 BROWNS VALLEY IRRIGATION DISTRICT, et al.: 9 BARTKEWICZ, KRONICK & SHANAHAN 1011 22nd Street, Suite 100 10 Sacramento, California 95816 BY: ALAN B. LILLY, ESQ. 11 CONTRA COSTA WATER DISTRICT: 12 BOLD, POLISNER, MADDOW, NELSON & JUDSON 13 500 Ygnacio Valley Road, Suite 325 Walnut Creek, California 94596 14 BY: ROBERT B. MADDOW, ESQ. 15 GRASSLAND WATER DISTRICT: 16 DON MARCIOCHI 22759 South Mercey Springs Road 17 Los Banos, California 93635 18 SAN LUIS CANAL COMPANY: 19 FLANNIGAN, MASON, ROBBINS & GNASS 3351 North M Street, Suite 100 20 Merced, California 95344 BY: MICHAEL L. MASON, ESQ. 21 STONY CREEK BUSINESS AND LAND OWNERS COALITION: 22 R.W. MCCOMAS 23 4150 County Road K Orland, California 95963 24 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 TRI-DAM POWER AUTHORITY: 3 TUOLUMNE UTILITIES DISTRICT P.O. Box 3728 4 Sonora, California 95730 BY: TIM MCCULLOUGH 5 DELANO-EARLIMART IRRIGATION DISTRICT, et al.: 6 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 7 P.O. Box 1679 Oroville, California 95965 8 BY: JEFFREY A. MEITH, ESQ. 9 HUMANE FARMING ASSOCIATION: 10 BRADLEY S. MILLER 1550 California Street, Suite 6 11 San Francisco, California 94109 12 CORDUA IRRIGATION DISTRICT, et al.: 13 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 14 Oroville, California 95965 BY: PAUL R. MINASIAN, ESQ. 15 EL DORADO COUNTY WATER AGENCY: 16 DE CUIR & SOMACH 17 400 Capitol Mall, Suite 1900 Sacramento, California 95814 18 BY: DONALD B. MOONEY, ESQ. 19 GLENN COUNTY FARM BUREAU: 20 STEVE MORA 501 Walker Street 21 Orland, California 95963 22 MODESTO IRRIGATION DISTRICT: 23 JOEL MOSKOWITZ P.O. Box 4060 24 Modesto, California 95352 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 PACIFIC GAS & ELECTRIC: 3 RICHARD H. MOSS, ESQ. P.O. Box 7442 4 San Francisco, California 94120 5 CENTRAL DELTA WATER AGENCY, et al.: 6 NOMELLINI, GRILLI & MCDANIEL P.O. Box 1461 7 Stockton, California 95201 BY: DANTE JOHN NOMELLINI, ESQ. 8 and DANTE JOHN NOMELLINI, JR., ESQ. 9 TULARE LAKE BASIN WATER STORAGE UNIT: 10 MICHAEL NORDSTROM 11 1100 Whitney Avenue Corcoran, California 93212 12 AKIN RANCH, et al.: 13 DOWNEY, BRAND, SEYMOUR & ROHWER 14 555 Capitol Mall, 10th Floor Sacramento, California 95814 15 BY: KEVIN M. O'BRIEN, ESQ. 16 OAKDALE IRRIGATION DISTRICT: 17 O'LAUGHLIN & PARIS 870 Manzanita Court, Suite B 18 Chico, California 95926 BY: TIM O'LAUGHLIN, ESQ. 19 SIERRA CLUB: 20 JENNA OLSEN 21 85 Second Street, 2nd Floor San Francisco, California 94105 22 YOLO COUNTY BOARD OF SUPERVISORS: 23 LYNNEL POLLOCK 24 625 Court Street Woodland, California 95695 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 PATRICK PORGANS AND ASSOCIATES: 3 PATRICK PORGANS P.O. Box 60940 4 Sacramento, California 95860 5 BROADVIEW WATER DISTRICT, et al.: 6 DIANE RATHMANN 7 FRIENDS OF THE RIVER: 8 BETSY REIFSNIDER 128 J Street, 2nd Floor 9 Sacramento, California 95814 10 MERCED IRRIGATION DISTRICT: 11 FLANAGAN, MASON, ROBBINS & GNASS P.O. Box 2067 12 Merced, California 95344 BY: KENNETH M. ROBBINS, ESQ. 13 CENTRAL SAN JOAQUIN WATER CONSERVATION DISTRICT: 14 REID W. ROBERTS, ESQ. 15 311 East Main Street, Suite 202 Stockton, California 95202 16 METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA: 17 JAMES F. ROBERTS 18 P.O. Box 54153 Los Angeles, California 90054 19 SACRAMENTO AREA WATER FORUM: 20 CITY OF SACRAMENTO 21 980 9th Street, 10th Floor Sacramento, California 95814 22 BY: JOSEPH ROBINSON, ESQ. 23 24 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 TUOLUMNE RIVER PRESERVATION TRUST: 3 NATURAL HERITAGE INSTITUTE 114 Sansome Street, Suite 1200 4 San Francisco, California 94194 BY: RICHARD ROOS-COLLINS, ESQ. 5 CALIFORNIA DEPARTMENT OF WATER RESOURCES: 6 DAVID SANDINO, ESQ. 7 CATHY CROTHERS, ESQ. P.O. Box 942836 8 Sacramento, California 94236 9 FRIANT WATER USERS AUTHORITY: 10 GARY W. SAWYERS, ESQ. 575 East Alluvial, Suite 101 11 Fresno, California 93720 12 KERN COUNTY WATER AGENCY: 13 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 400 Capitol Mall, 27th Floor 14 Sacramento, California 95814 BY: CLIFFORD W. SCHULZ, ESQ. 15 SAN JOAQUIN RIVER EXCHANGE CONTRACTORS: 16 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON: 17 P.O. Box 1679 Oroville, California 95965 18 BY: MICHAEL V. SEXTON, ESQ. 19 SAN JOAQUIN COUNTY: 20 NEUMILLER & BEARDSLEE P.O. Box 20 21 Stockton, California 95203 BY: THOMAS J. SHEPHARD, SR., ESQ. 22 CITY OF STOCKTON: 23 DE CUIR & SOMACH 24 400 Capitol Mall, Suite 1900 Sacramento, California 95814 25 BY: PAUL S. SIMMONS, ESQ. CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 ORLAND UNIT WATER USERS' ASSOCIATION: 3 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 4 Oroville, California 95965 BY: M. ANTHONY SOARES, ESQ. 5 GLENN-COLUSA IRRIGATION DISTRICT: 6 DE CUIR & SOMACH 7 400 Capitol Mall, Suite 1900 Sacramento, California 95814 8 BY: STUART L. SOMACH, ESQ. 9 NORTH SAN JOAQUIN WATER CONSERVATION DISTRICT: 10 JAMES F. SORENSEN CONSULTING CIVIL ENGINEER, INC. 209 South Locust Street 11 Visalia, California 93279 BY: JAMES F. SORENSEN 12 PARADISE IRRIGATION DISTRICT: 13 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 14 P.O. Box 1679 Oroville, California 95695 15 BY: WILLIAM H. SPRUANCE, ESQ. 16 COUNTY OF COLUSA: 17 DONALD F. STANTON, ESQ. 1213 Market Street 18 Colusa, California 95932 19 COUNTY OF TRINITY: 20 COUNTY OF TRINITY - NATURAL RESOURCES P.O. Box 156 21 Hayfork, California 96041 BY: TOM STOKELY 22 CITY OF REDDING: 23 JEFFERY J. SWANSON, ESQ. 24 2515 Park Marina Drive, Suite 102 Redding, California 96001 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 TULARE IRRIGATION DISTRICT: 3 TEHAMA COUNTY RESOURCE CONSERVATION DISTRICT 2 Sutter Street, Suite D 4 Red Bluff, California 96080 BY: ERNEST E. WHITE 5 STATE WATER CONTRACTORS: 6 BEST BEST & KREIGER 7 P.O. Box 1028 Riverside, California 92502 8 BY: ERIC GARNER, ESQ. 9 COUNTY OF TEHAMA, et al.: 10 COUNTY OF TEHAMA BOARD OF SUPERVISORS: P.O. Box 250 11 Red Bluff, California 96080 BY: CHARLES H. WILLARD 12 MOUNTAIN COUNTIES WATER RESOURCES ASSOCIATION: 13 CHRISTOPHER D. WILLIAMS 14 P.O. Box 667 San Andreas, California 95249 15 JACKSON VALLEY IRRIGATION DISTRICT: 16 HENRY WILLY 17 6755 Lake Amador Drive Ione, California 95640 18 SOLANO COUNTY WATER AGENCY, et al.: 19 HERUM, CRABTREE, DYER, ZOLEZZI & TERPSTRA 20 2291 West March Lane, S.B.100 Stockton, California 95207 21 BY: JEANNE M. ZOLEZZI, ESQ. 22 ---oOo--- 23 24 25 CAPITOL REPORTERS (916) 923-5447 1 INDEX 2 PAGE 3 RESUMPTION OF HEARING 9508 4 POLICY STATEMENT: BY MR. BRANDT 9485 5 ASSEMBLYMAN MACHADO 9527 BY MS. ZOLEZZI 9534 6 BY MS. CAHILL 9542 7 SOUTH DELTA WATER AGENCY: 8 CONTINUED RECROSS-EXAMINATION: BY MR. BIRMINGHAM 9508 9 RECROSS-EXAMINATION: BY BOARD MEMBERS 9523 10 11 12 ---oOo--- 13 14 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 1 SACRAMENTO, CALIFORNIA 2 WEDNESDAY, JANUARY 27, 1999 3 ---oOo--- 4 C.O. STUBCHAER: Good morning. We will reconvene the 5 Bay-Delta hearing. 6 As we discussed yesterday, we expect Assemblyman 7 Machado to be here to make a policy statement, but I 8 understand he is not here yet. We still want to get going. 9 Mr. Brandt, are you ready to make your policy 10 statement? 11 MR. BRANDT: Sure. 12 C.O. STUBCHAER: Then, you're subject to interruptions. 13 We will make allowances for time and stuff like that. 14 Good morning, and finally welcome. 15 MR. BRANDT: Good morning. Thank you. 16 Alf Brandt for the United States Department of the 17 Interior. 18 Backstop. Buck stops here. We've heard a lot about it 19 the last days. It's made me conclude that it is something 20 that we need to deal with a little more. Even if people 21 aren't calling about the backstop, they are calling about 22 the role or responsibility of the Bureau and all those kinds 23 of things. 24 This phase is about the San Joaquin River Agreement, 25 the alternatives what would happen if we didn't do the San CAPITOL REPORTERS (916) 923-5447 9485 1 Joaquin River Agreement and there wasn't the backstop or an 2 order of us requiring us to take certain responsibilities, 3 independent of our agreement to backstop on the agreement? 4 So, really, we're going to be talking a little bit more 5 about backstop and about some of the other alternatives as 6 part of our rebuttal case. 7 It's really come to mind through a bunch of the 8 testimony the last few days. You are not going to hear us 9 respond to the lengthy legal arguments. We are not going to 10 put on witnesses about the lengthy legal arguments. You 11 will see that in our briefs. You are not going to hear us 12 put on witnesses about responding to the allegations of 13 violations of our permits unless the Board thinks that is 14 extremely relevant in this particular proceeding. We are 15 not going to responding specifically on those points. 16 At this point they are not complaints, and they are 17 just allegations. We think they are wrong, and we will deal 18 with that in our briefs. We are not going to have witnesses 19 on that. 20 You are not going to see us have witnesses on every 21 specific biological fact, and, no, this witness did not know 22 this fact. We are not going to be putting on a specific 23 witness to challenge all those facts, even though there are 24 many facts in the record that are not exactly accurate. 25 And, finally, you are not going to hear us put on a CAPITOL REPORTERS (916) 923-5447 9486 1 witness to respond to every innuendo about wether the Bureau 2 is responsible or whether there were devious assertions of 3 fact. We are not going to get into that, and we are not 4 going to waste this Board's time and challenge every single 5 piece that has been made over the last several weeks. 6 We are going to focus on what we think is the most 7 important piece of this phase, where the Board's attention 8 is and where we think it should be, which is to focus on the 9 alternatives of the agreement. I guess a piece here is one 10 is the backstop, how does that work, how does it work with 11 the San Joaquin River Agreement as on opposed to other 12 options. And, particularly, I think you will see us put on 13 several witnesses that talk about recirculation and why 14 there are problems with, why it is difficult and why it is 15 not as simple as it is made out to be. 16 Really, as far as the backstop and the meaning of 17 backstop, what does it really mean, we accept much of what 18 DWR put on for their testimony, as far as it went. As far 19 as it went, they were focused on outflow. They really 20 couldn't answer about how we would operate on Vernalis and 21 how we would operate on the San Joaquin. We probably need 22 to put on a witness to talk a little bit more in detail 23 about how that backstop really works on the San Joaquin 24 side. We do support much of what DWR has said. 25 We recognize that we just need to provide some more CAPITOL REPORTERS (916) 923-5447 9487 1 detail so you understand a little bit more detail about how 2 it works. I guess to give you some background just from the 3 policy statement perspective of where this all comes from -- 4 I guess Greg Thomas is here today. From my experience, 5 first time I heard "backstop" in the middle of the 6 negotiations of the San Joaquin River Agreement when Greg 7 Thomas came up to me and said, "You know, we really need the 8 Bureau to backstop," or I think he also used the word 9 "safety net," that kind of thing, to be the ones to make 10 sure the standards are taken care of. 11 It kind of reminded me at the time of -- and I think he 12 may have used some sports analogies. It reminded me of my 13 grade school backstop, the chain-link ones you end up taking 14 a lot of balls, and I was not very good, it ended up taking 15 a lot of pitches. I guess you could compare the U.S. Bureau 16 of Reclamation to some extent as kind of like that 17 chain-link backstop. 18 There are many small streams. We draw from many small 19 streams, from many large streams. We drew from many 20 different sources. We rely on, and to some extent, our 21 contractors are subject to our responsibilities. They may 22 be reduced, and they may suffer to some extent. They are 23 kind of like the links in that chain, chain-link backstop 24 whether it is the stream, whether it is the districts that 25 are having to reduce because we are having to backstop the CAPITOL REPORTERS (916) 923-5447 9488 1 standards. All those together, all holding together, that 2 provides that backstop. We are the ones that take the 3 pitches, take the foul balls. 4 Some ways I kind of think back the last few weeks and 5 some ways we have seen a lot of foul balls go our way the 6 last few weeks, and I think that is why it is appropriate to 7 call it a backstop. But we ultimately take responsibility. 8 You heard in Phase II Lowell Ploss get up and testify about 9 our responsibility. We did do our best at that point to 10 explain where we were on our backstop and what our 11 responsibility was. We were stepping up to the plate to 12 take responsibility for the standards. 13 What does that mean? And I heard some questions as 14 some have asked me outside of the hearings a little bit 15 about what does it exactly mean, how does it work in the 16 pulse flow period. Well, the pulse flow period, we are 17 taking responsibility, but in combination with everyone 18 else. We ultimately have the responsibility, but we want to 19 provide the flows at the amount set in the San Joaquin River 20 Agreement. I acknowledge that you cannot exactly compare 21 that because we are using existing flows, compare that to 22 the standards which use the year type. So you are right; 23 you can't exactly do it. 24 There may be years where we are way over the standards. 25 There may be years where we are under the standards. But we CAPITOL REPORTERS (916) 923-5447 9489 1 remain committed to in one case at least, particularly, I 2 want to just highlight that, when the existing flow sets the 3 target for VAMP flows at 2,000, we have committed in the 4 agreement and remain committed to try and buy that flow, to 5 put it up to the 3,200 so it is at least at the minimum 6 level for the standards. So, we are committed to try and do 7 that as best we can. 8 We can't do it all. Because of our restrictions of our 9 flows out of New Melones, we can't do it just relying on New 10 Melones. We can't do it with 1,500 cfs restriction that we 11 have on releases out of New Melones. So we can't do it 12 alone, and that is why we rely on drawing from other streams 13 and other sources. 14 You had heard some operators get up in Phase II as well 15 and discuss some of the how we do it, how we work with the 16 other operators on the other rivers to make sure that there 17 are exchanges or somehow we make sure that there is flow at 18 Vernalis to meet most of the standards. 19 In our view, it's -- during the pulse flow period it's 20 the way we've structured it is a reasonable combination. 21 And really it is -- we are doing our best under any 22 condition to try to backstop and make sure the standards are 23 met to the best extent possible. Granted, there may be 24 years where they are not exactly as the standards are, based 25 on whatever happens. We can't say exactly what is going to CAPITOL REPORTERS (916) 923-5447 9490 1 happen right now. We also recognize that the reductions in 2 exports are going to make a big difference in helping to 3 make sure that the intent of the pulse flow is met. There 4 is pulse flow through the Delta, not just pulse flow to the 5 Delta and then taken out by the pumps. That is a reasonable 6 combination of both those things together to make it work in 7 the pulse flow period. 8 Outside the pulse flow period we are committed to 9 continue to meet the standards, as the standards are. We 10 will do whatever we can. We need to buy some water -- we've 11 made some agreements in the San Joaquin River Agreement to 12 buy water from Oakdale, to buy water from Merced for the 13 October flows, to find ways to get water to make sure we 14 meet the standards as they are exactly in the standards 15 outside the pulse flow period. 16 Upon termination, what happens if the agreement blows 17 up? And a number of people have raised that concern. Ms. 18 Koehler did yesterday in her opening statement. Had some 19 concern about what happens if the agreement goes away. If 20 there is some problem with it. 21 We then step in and we continue do what we've been 22 doing for the last several years. We would be buying water. 23 We would be releasing as much as we can from New Melones to 24 provide for the pulse flow and provide the rest of the time 25 of year. But we would also be committed to buying some CAPITOL REPORTERS (916) 923-5447 9491 1 water and trying to get water. It just may not be certain. 2 But we have some confidence that we can do that. We've done 3 that in the last few years, been able to buy some water, and 4 we think we would be able to continue to buy the water on 5 the flow side, perhaps even from the same parties that are 6 part of this agreement. It may just become a separate 7 agreement, but we have confidence. We have a strong level 8 of confidence that we would be able to find our way through 9 it. Even as Mr. Hildebrand admitted, there are going to be 10 some years that the conditions in the San Joaquin River are 11 so dire and there is so little water in New Melones or any 12 other reservoir that we may not be able to meet the 13 conditions. That may happen. That is the nature of 14 hydrology, as I am sure you well know. 15 Then it comes to -- this whole phase is about why San 16 Joaquin River Agreement compared to everywhere else. We 17 have come to the -- we came to the conclusion that at some 18 point last year that this was the best way because it was a 19 cooperative effort, and it represented more than 90 percent 20 of the water rights upstream of Vernalis are represented by 21 the parties in the San Joaquin River Agreement. And it 22 allows us to provide that kind of precise management to make 23 sure that we get to those flows. By working together and 24 having this cooperative effort, we have a lot better ability 25 to, as a whole, all of us together, to make sure that those CAPITOL REPORTERS (916) 923-5447 9492 1 flows show up at Vernalis. 2 When you have that many parties and that broad a 3 spectrum of parties upstream of Vernalis participating, you 4 have a lot better idea and a lot better ability to make sure 5 that the flows show up at Vernalis. 6 And it's kind, from our view, it is an equitable 7 sharing of the burden. We are working together with all the 8 parties on those rivers and all the streams to make sure we 9 are working together to make those flows show up. 10 We looked at recirculation, and you will hear some 11 testimony that we will be putting on in rebuttal about 12 recirculation and what your conclusions have been. We 13 concluded for a number of reasons that it is not as reliable 14 or as workable. There are some issues with contaminants in 15 the Newman Wasteway. There are some issues with entrainment 16 of fish at the pumps and making sure the pumps get it down 17 there. 18 As Mr. Hildebrand proposed, that we would go and buy it 19 from exporters. Well, we have not seen a large amount of 20 water available that we can get over to the San Joaquin 21 River from the exporters, and so that is why we do think 22 that is as certain or as -- we are not as confident that 23 that one would work. So that is why you will hear about 24 some of the problems with rerecirculation when we get to the 25 rebuttal phase. CAPITOL REPORTERS (916) 923-5447 9493 1 We looked at proportional contributions, Alternative 5 2 in your EIR. The way that is framed in the EIR for the San 3 Joaquin and, actually, for the Sacramento as well, the 4 current modeling, perhaps, provides more flow than is 5 necessary. I think we've commented on that in the EIR 6 comments. So it's -- on the San Joaquin side we are focused 7 on the agreement, and we think it -- because of the 8 complications of the San Joaquin River, it does not make as 9 much sense from that perspective; it's likely to lead to 10 litigation, I think. We want to make sure that we are doing 11 something to meet these standards now, that we are doing the 12 best we can. 13 If we end up in litigation with all the parties on the 14 San Joaquin River, and presumably with the Board, we are not 15 going to -- we may not be able to buy any water to be able 16 to get that water to Vernalis for the pulse flow period, so 17 we may have more of a problem. That is why we think 18 cooperation is the best way. 19 You know, the last one is a project only it, I think 20 Mr. Hildebrand called it a bizarre proposition, Alternative 21 2. And, really, we can't do it alone. It takes cooperation 22 among all parties on the San Joaquin River to do it. We 23 could do an annual purchase. We could go through, as we 24 have gone the last few years, and do an annual purchase. 25 Depending on hydrology, there may be some years where we are CAPITOL REPORTERS (916) 923-5447 9494 1 not going to be able to purchase it. There may be those 2 middle years where we may not be able to purchase it. We 3 think that the 12 years in the San Joaquin River Agreement 4 provides for a lot more certainty over that period than 5 relying and hoping that someone shows up to sell us some 6 water year after year after year, whether it is from 7 exporters or from the other tributaries. 8 We just think that there is greater risk of failure 9 relying just on us and just on our ability to be able to 10 purchase water from someone. 11 So it ultimately comes down to your Board has a choice 12 here; it's kind of a unique challenge. You are trying to 13 balance the water rights and how that all fits together. In 14 a complicated system like the San Joaquin, that could be 15 quite a challenge. Then you have to balance it with water 16 quality. It's not exactly a common thing. The Board hasn't 17 done this a whole lot. 18 I can tell you when I wrote a law review article 12 19 years ago when I was in law school, about this very process, 20 I was excited by it. I think it is exciting to be on the 21 cusp of making a major decision. But I think in this first 22 cut the thing that is going to make this successful is very 23 likely going to be the fact that you have a broad consensus 24 in a watershed. It's going to be the ability to make sure 25 that you are able to implement it, make sure that we can CAPITOL REPORTERS (916) 923-5447 9495 1 actually get those flows, at least as provided in VAMP 2 during the pulse flow; and the rest of the time we can 3 provide what is necessary to meet the standards. 4 The important part that is sometimes missed out is that 5 Article VIII in the San Joaquin River Agreement, which 6 provides for a mechanism for us to buy additional water, if 7 there are other times that we need to have additional flow 8 whether it is October or during other times that there is a 9 flow required at Vernalis. 10 It's kind of a choice comes down to you could condition 11 our permits or you could condition a number of people's 12 permits with some combination, that you are all responsible. 13 You have to cut back during this period. We think it would 14 lead to a huge challenging time in Phase VIII, to say the 15 least, to try and work through all those issues that we 16 could then come up. 17 The other part of it, once we got out of Phase VIII, 18 assuming we got out of it at some point, it probably will 19 lead to litigation. In that meantime, we'd be struggling to 20 try and meet the standards, particularly the pulse flow 21 standards. We'd be struggling to try to do that during 22 those years as we litigate what happens. 23 The other option is, from our view, exception. The 24 broad consensus among the San Joaquin River parties that are 25 upstream of Vernalis. Let us use our backstop, and we are CAPITOL REPORTERS (916) 923-5447 9496 1 more confident that our backstop can be strong when we have 2 that cooperation from those other parties. That is what 3 makes this work. Let us use their water and our water 4 working together and manage very carefully to use the most 5 reasonable use of each drop of water to make sure it gets to 6 Vernalis and meets the standards, but doesn't demand a huge 7 amount more and allows people to use it in other ways. 8 The choice in some ways -- I guess, in some ways if I 9 go back to my analogy, it's kind of like -- you can have a 10 chain-link fence and not a full backstop, not the one with 11 the top where the foul balls fly up. You can have a 12 chain-link fence with, perhaps, some missing links. If we 13 did the recirculation, it would depend on us being able to 14 buy water in many years because there may be entrainment 15 issues. We'd have shut down being able to recirculate. So 16 we have to, perhaps, go out and find some water. There may 17 be some missing links in some years and in many years 18 perhaps. 19 It's always perhaps kind of like we'd be the catcher 20 running around trying to find some water, trying to get the 21 ball, trying to run around that chain-link fence for the 22 ones that flew over. It is a chain-link fence versus a 23 backstop, a backstop that has all the links linking 24 together, has the exporters accepting some lower exports, 25 has a number of parties providing water to make sure that CAPITOL REPORTERS (916) 923-5447 9497 1 the Vernalis pulse flow is there. It has us being able to 2 buy some water in other times to make sure that the 3 Standards in the rest of the time of the year are met. It 4 has each piece in place. It's an upper barrier. It is 5 full. Whatever the weather pitches out, we are going to be 6 able to be the one that backstops it and catches that ball 7 and catches whatever the weather can pitch out. 8 So, it comes down to from our view in some ways the 9 chain-link versus a full backstop that can make sure that 10 the standards, to the best of our ability, are met year 11 after year during the period of San Joaquin River Agreement. 12 So, we hope you will accept that backstop and be the one 13 that we can move forward with the next 12 years. 14 C.O. STUBCHAER: Thank you, Mr. Brandt. 15 Are you willing to take some questions on your policy 16 statement? 17 MR. BRANDT: I suppose. Although I can't -- 18 C.O. STUBCHAER: You have used the pronoun "we." It 19 sounds to me like the "we" in this case is the Bureau of 20 Reclamation and not the folks working on the Endangered 21 Species Act. 22 Does the Bureau have any policy statement regarding the 23 cooperation on the south channel barrier installations and 24 trying to work through the biological opinions? 25 MR. BRANDT: We continue to try to do that. That is a CAPITOL REPORTERS (916) 923-5447 9498 1 challenge, but it is one that -- frankly, that is one of the 2 pieces that we are trying to cooperate on even within 3 Interior. 4 As you may know, within CalFed there is an effort to 5 try and work through the South Delta issues, including the 6 barriers or some other piece, that, in combination, it can 7 work. While it is not being done here as part of this 8 process, we are continuing to work together to try and find 9 a way to balance those fishery issues that may be raised by 10 the barriers with a number of other things that are going on 11 with the pumps and other places in the Delta. We are trying 12 to work on that. That is another part of the cooperative 13 effort. 14 C.O. STUBCHAER: You stated you are going to rely in 15 the rebuttal period to answer some of these questions. Do 16 you intend to distribute some of your rebuttal testimony to 17 the other parties ahead of the presentation here? 18 MR. BRANDT: If we can get it all written, yes. We are 19 working on some of it, to have it in written form so we can 20 distribute it in writing. That is where we are up to the 21 minute. We are responding, actually, as we hear what is 22 being said. It is not quite ready. Hopefully, yes, we will 23 be able to provide that in writing. 24 C.O. STUBCHAER: If you can, of course, it makes it 25 more fair for the other parties. CAPITOL REPORTERS (916) 923-5447 9499 1 MR. BRANDT: I understand. 2 C.O. STUBCHAER: With regard to the San Joaquin River 3 Agreement, does the Department of the Interior view that as 4 a take it or leave it agreement? 5 MR. BRANDT: I think that if we -- in other words, you 6 would propose making some change? 7 C.O. STUBCHAER: I am not proposing anything because 8 my mind is wide open at this point. We haven't concluded 9 our evidence taking. It is just a question as to whether 10 it's accepted as it is or modified it would still be 11 acceptable to you. 12 MR. BRANDT: If we were to leave it or modify it 13 substantially, it would very likely be a leave it. It may 14 not be on our part, but it may be that the parties have to 15 go back and take a look at it. The agreement provides for a 16 -- that if the Board takes it in a different direction or 17 orders a number of things that are inconsistent with the 18 agreement, the parties then go back and try to rework it. 19 We would do our best to try to rework it. Let me tell you, 20 if there are substantial changes, the risk is that we lose 21 it. If we lose it, then we are facing a Phase VIII that I 22 would shutter to contemplate what Phase VIII would be like. 23 It would be a fight among all the parties in the San Joaquin 24 River Agreement. That is why, to a large extent, I have to 25 say it's for the most part a take it or leave it. If there CAPITOL REPORTERS (916) 923-5447 9500 1 are things that adjust that are consistent with it, then 2 that is something that we need to take back that the parties 3 would need to take a look at and see whether that can work. 4 5 I will leave it with that statement. 6 C.O. STUBCHAER: You will leave it. Okay. Thank you. 7 I don't know if we will take it any way. 8 MR. BRANDT: I certainly hope so. Remember, the full 9 backstop not the chain-link fence. Let's go with the 10 backstop. 11 C.O. STUBCHAER: Mr. Brown. 12 C.O. BROWN: Mr. Brandt, I appreciated your analogy. 13 I had hoped that you would cover some of the real hard 14 questions that have been asked during this hearing. And the 15 obvious one that's been asked time and time again, when you 16 do a backstop with water out of New Melones, what happens to 17 the Stockton East Water District? What happens to Central 18 San Joaquin and others that are looking for additional water 19 supplies out of New Melones, even though it is an increment 20 contract type basis? And it's appreciated the fact that the 21 Bureau is stepping forward and recognizing this 22 responsibility, but the question that has been posed to us 23 time and time again: When you do this, what is the cost to 24 others that also might be relying on quantities of water out 25 of New Melones when you take up this charge? CAPITOL REPORTERS (916) 923-5447 9501 1 Another hard question that has been asked is that, if 2 you are backstopping with water that the South Delta is 3 going to be receiving, anyway, and if that is the water that 4 you are reregulating and reusing as opposed to the other 5 terminology that was used time and time again, real water, 6 does this make a lot of sense? That is a hard question. I 7 didn't hear you address that. 8 The X2 issue was brought up. Is that something that is 9 a responsibility of the proponents of your agreement, or is 10 that more or less a regional concern? Or is that part of 11 the backstop? Or is it something that might be addressed on 12 a public trust issue, as a for instance? That issue has 13 been brought up time and time again. 14 And as far as the recirculation goes, I think that Mr. 15 Hildebrand expressed himself quite clear in that there are 16 times when it won't work, in his opinion. There are times, 17 at least in his opinion and others, when it obviously would 18 work. There are times and circumstances that it makes 19 sense to recirculate it that the Delta doesn't need 20 additional quantities of water and to keep those waters in 21 your system where you could save those quantities of water, 22 would appear on the surface to be a real benefit to the 23 Bureau and to the CVP contractors. 24 And then the last statement, if any of this is true 25 that we are discussing here with you, it seems that you CAPITOL REPORTERS (916) 923-5447 9502 1 might be more interested in some type of a compromise or 2 working out agreements with the other alternatives instead 3 of a take it or leave it position that you may or may not 4 have. 5 Those are four or five concerns that I was hoping you 6 would address, and you missed them. 7 MR. BRANDT: Well, some of them I think we need to 8 leave to our witnesses. That's why I may have made 9 reference, but it really is going to rely on our witnesses. 10 Let me run through a couple of those or run through all of 11 them, and tell you where we are and what we will be doing. 12 Affects on other New Melones contractors: We see 13 that, to a large extent, as something that is both part of 14 our authorizing law for why New Melones is there. We have 15 to take care of water quality. That's one piece of it. The 16 other part that is where the permits -- that is where our 17 permits require us to take care of it from. 18 So, really, it is, from our sense, it is a condition on 19 our permits already that your Board has imposed on us, 20 previous Board has imposed on us. That is why we are 21 focused there and that is why that is our first priority. 22 We don't have any water to provide to central San Joaquin or 23 to Stockton East until we take care of the conditions on our 24 permits. That is the way D1422 framed it. 25 While it might be good for us to be able to do it, that CAPITOL REPORTERS (916) 923-5447 9503 1 is where our responsibility lies. It's at New Melones. We 2 can't provide any water for New Melones until we take care 3 of these other issues, these water quality and fish 4 requirements. Those kinds of things come first before we 5 have any project water for our project contractors. Yes, we 6 would have liked to have been where we were, where we 7 expected to be when New Melones was designed and developed, 8 to provide that level of water to our contractors. But the 9 drought and hydrology has turned out a little differently 10 than we anticipated. 11 I think you heard some of that testimony from Mr. 12 Ploss, and perhaps you will hear a little bit more. From 13 our perspective it's a responsibility that we have from the 14 federal law as well as from this Board, to take care of 15 water quality at Vernalis and at Ripon first, before we get 16 any water for our contractors. That is the answer on that. 17 On South Delta getting the water anyway, we don't see 18 that they would automatically be getting the water anyway 19 There are a number of questions about whether that is true. 20 You know, it depends on the hydrology. We don't think that 21 they have any right necessarily, as we disagree with Mr. 22 Hildebrand's perspective that he has some right to have 23 those releases or those -- that protection later in the 24 summer from the other reservoirs and from the other places. 25 We have a responsibility on our reservoir, but we don't see CAPITOL REPORTERS (916) 923-5447 9504 1 that it's a part that he would automatically get that. I 2 think that is a question that is not perfectly clear here, 3 that he would automatically get that water in any case. He 4 may or may not. They may be able to use it. They may use 5 it from storage for other purposes, and, really, that is not 6 -- that is something they probably need to answer and the 7 other tributary people need to answer. 8 As far as X2, yes, we are backstopping that. That is 9 part of the agreement. We consider that part of our 10 responsibility, and it's part of our responsibility and part 11 of the whole project's responsibility, not from the San 12 Joaquin side but from the Sacramento side. Yes, we have 13 taken that on and that is the part that we agree, for 14 instance, the way DWR cast our responsibilities. 15 As for recirculation, that I am going to leave to the 16 witnesses that will be providing rebuttal, why it, in many 17 cases, may not work. There may be an occasional year here 18 and there where recirculation may work. There are so many 19 issues related to fisheries, related to the way operations 20 actually work, and I am not the expert. I am not the 21 engineer who actually operates the projects. I'm not even 22 going to try to go in there and work. I'm not a biologist, 23 so I will not go there either. But our witnesses will be 24 providing more background on why it just doesn't, from our 25 view, doesn't work as well. CAPITOL REPORTERS (916) 923-5447 9505 1 The last piece on South Delta barriers -- 2 C.O. STUBCHAER: You addressed that. 3 MR. BRANDT: That is from your question. That is sort 4 of where we are on that. That is why we have looked at a 5 number of things. We have looked at recirculation. We have 6 looked at these kinds of things. That is where we came out. 7 The San Joaquin River Agreement is the best way to go, is 8 the way to most certainly provide the year after year 9 protection that is needed by the Delta. 10 C.O. STUBCHAER: Thank you, Mr. Brandt. 11 MR. BRANDT: Thank you. 12 C.O. STUBCHAER: Ms. Zolezzi, you have any word on your 13 policy speaker? 14 MS. ZOLEZZI: If I would be allowed, I'd loved to, but 15 I -- 16 C.O. STUBCHAER: I mean on Assemblyman Machado. 17 MS. ZOLEZZI: We have not. I don't know why he is not 18 here. 19 C.O. STUBCHAER: Are you ready to begin your case, 20 then? 21 MS. ZOLEZZI: We would really like to be able to go 22 after Assemblyman Machado. I know that is -- 23 C.O. STUBCHAER: We don't know when that is. 24 MS. ZOLEZZI: We can proceed with the remainder of 25 South Delta. We were prepared to go ahead, but when we CAPITOL REPORTERS (916) 923-5447 9506 1 found out Mr. Machado was coming, we, obviously, did some of 2 our policy statement to follow his. 3 C.O. STUBCHAER: How about the City of Stockton? 4 MS. CAHILL: We are in that same situation. It would 5 seem to me, if there were more cross-examination of Mr. 6 Hildebrand, and he is here, we can pick up and start that. 7 And when the Assemblyman arrives -- 8 MS. ZOLEZZI: We can make a phone call. 9 MS. CAHILL: -- you can take him. And we can either 10 follow him or follow the completion of the 11 cross-examination. 12 C.O. STUBCHAER: Mr. Birmingham, are you prepared to 13 resume your cross-examination? 14 And I would appreciate if you can find out the 15 schedule. If he is not going to come, we would wait 16 indefinitely. So, we are going to have to make a decision 17 relatively soon. 18 Mr. Hildebrand. 19 MR. HILDEBRAND: I seem to be the fill-in, whenever 20 there is nothing else to do, people cross-examine me. 21 C.O. STUBCHAER: Morning, again. Eat your Wheaties 22 this morning, Mr. Hildebrand? 23 MR. HILDEBRAND: I had breakfast, thank you. 24 ---oOo--- 25 // CAPITOL REPORTERS (916) 923-5447 9507 1 CONTINUED RECROSS-EXAMINATION OF SOUTH DELTA WATER AGENCY 2 BY SAN LUIS AND DELTA-MENDOTA WATER AUTHORITY AND 3 WESTLANDS WATER DISTRICT 4 BY MR. BIRMINGHAM 5 MR. BIRMINGHAM: Mr. Hildebrand, I have what I hope 6 would turn out to be a few questions. 7 It is correct, isn't it, Mr. Hildebrand, that there are 8 no salmon in the main stem of the San Joaquin River above 9 the confluence of the Merced River? 10 MR. HILDEBRAND: Only strays. 11 MR. BIRMINGHAM: And so, it would be correct, wouldn't 12 it, Mr. Hildebrand, that generally there -- let me rephrase 13 the question. 14 Are there smelts in the main stem of the San Joaquin 15 River at this time? 16 MR. HILDEBRAND: How far up are you talking about? 17 MR. BIRMINGHAM: Above the main stem of the Merced. 18 MR. HILDEBRAND: Not to my knowledge, no. 19 MR. BIRMINGHAM: It's correct, isn't it, Mr. 20 Hildebrand, that the pulse flow that has been proposed as 21 part of the Vernalis Adaptive Management Plan and as called 22 for by the 1995 Water Quality Control Plan, there is a pulse 23 flow for fish, not water quality? 24 MR. HILDEBRAND: That's right. We don't have a water 25 quality problem at the time when they are doing a pulse CAPITOL REPORTERS (916) 923-5447 9508 1 flow. 2 MR. BIRMINGHAM: If the tributaries don't make releases 3 to provide pulse flows, how would the smolts in tribs 4 outmigrate? 5 MR. HILDEBRAND: Are you talking about how they would 6 outmigrate during the pulse or are you talking about 7 throughout the entire downstream migration period? 8 MR. BIRMINGHAM: I am talking about during the pulse. 9 Let me ask the question differently. 10 Mr. Hildebrand, the pulse intended to assist the 11 outmigration of salmon smolts? 12 MR. HILDEBRAND: During that period of time, yes. 13 MR. BIRMINGHAM: And without the pulse flow how would 14 the smolts outmigrate? 15 MR. HILDEBRAND: Same way. 16 MR. BIRMINGHAM: And how is that? 17 MR. HILDEBRAND: By going down the stream. 18 MR. BIRMINGHAM: In Mr. Herrick's redirect examination 19 of you, he asked you some questions about litigation in 20 which South Delta Water Agency has been involved? 21 MR. HILDEBRAND: Yes. 22 MR. BIRMINGHAM: Is RC Farms in South Delta Water 23 Agency? 24 MR. HILDEBRAND: RC Farms, don't recognize that 25 designation at the moment. CAPITOL REPORTERS (916) 923-5447 9509 1 MR. BIRMINGHAM: So, you don't know whether it is in 2 South Delta Water Agency? 3 MR. HILDEBRAND: I don't recall. 4 MR. BIRMINGHAM: Mr. Herrick asked you, Mr. Hildebrand, 5 a series of questions about a case South Delta Water Agency 6 filed against the United States concerning water transfers 7 from Merced Irrigation District to the Department of the 8 Interior. 9 Do you recall those questions? 10 MR. HILDEBRAND: Yes, I do. 11 MR. BIRMINGHAM: During the response to a question you 12 indicated that one of the bases of that suit was South Delta 13 Water Agency's contention that the transfer was subject to 14 Section 3405 (i) of the Central Valley Project Improvement 15 Act? 16 MR. HILDEBRAND: Yes. 17 MR. BIRMINGHAM: You indicated in response to another 18 question that the Court held that the section did not apply 19 because, and I wrote these words down carefully, because the 20 government's attorneys made devious representations to the 21 Court. 22 Do you recall using the word "devious"? 23 MR. HILDEBRAND: I do. 24 MR. BIRMINGHAM: You used that with respect to the 25 representations that were made by the government's attorneys CAPITOL REPORTERS (916) 923-5447 9510 1 to the court? 2 MR. HILDEBRAND: That's right. I regret that I don't 3 have a transcript of what the government's -- Bureau's 4 attorneys said. You can then judge for yourself whether it 5 was devious. 6 MR. BIRMINGHAM: I would like to examine Section 3405 7 (i) of the Central Valley Project Improvement Act. 8 Do you have a copy of that with you, Mr. Hildebrand? 9 MR. HILDEBRAND: Yes. 10 MR. BIRMINGHAM: Section 3405 of the Central Valley 11 Project Improvement Act is a section that deals with water 12 transfers and improved water management and conservation; is 13 that correct, Mr. Hildebrand? 14 MR. HILDEBRAND: Say that again or the scope of what 15 you are talking about. Oh, Section 3405, yes. 16 MR. BIRMINGHAM: Section 3405 deals with water 17 transfers, improved water management and conservation; is 18 that correct? 19 MR. HILDEBRAND: That's right. 20 MR. BIRMINGHAM: In particular, Section 3405 (A)(1)(i) 21 deals with water that is the subject of transfers; is that 22 correct? 23 MR. HILDEBRAND: Yes. But you have to -- you can't 24 look at (i) in isolation from what comes ahead of it. 25 MR. BIRMINGHAM: I would agree, Mr. Hildebrand. In CAPITOL REPORTERS (916) 923-5447 9511 1 fact, (i) says: 2 The water subject to any transfer undertaken 3 pursuant to this subsection shall be limited 4 to water that would have been consumptively 5 used or irretrievably lost to beneficial use 6 during the year or years of the transfer. 7 (Reading.) 8 MR. HILDEBRAND: That's right. 9 MR. BIRMINGHAM: And it was South Delta Water Agency's 10 contention that this section of the law was violated by the 11 transfer of water from Merced Irrigation District to the 12 government? 13 MR. HILDEBRAND: That is right. 14 MR. BIRMINGHAM: Now, a few moments ago you indicated 15 that you can't look at Subsection (i) in isolation; you have 16 to look at what comes before it; is that correct? 17 MR. HILDEBRAND: Yes. 18 MR. BIRMINGHAM: What comes before it is, among other 19 things, Section 3405 (A)(1); isn't that correct? 20 MR. HILDEBRAND: Yes. But let's start all the way up 21 on the front here at (A). It applies to all individuals or 22 districts who receive Central Valley Project water under 23 water service or repayment contracts, water rights 24 settlement contracts or exchange contracts entered into 25 prior or after the date, et cetera. CAPITOL REPORTERS (916) 923-5447 9512 1 MR. HERRICK: Mr. Chairman, I don't want the record to 2 reflect things that aren't correct. May I confer with my 3 client for one minute? He may have misspoken. 4 C.O. STUBCHAER: Yes, you may. 5 MS. ZOLEZZI: Mr. Chairman, I would take this 6 opportunity, Assemblyman Machado is on his way. He's 7 walking over here. 8 C.O. STUBCHAER: Thank you. 9 Mr. Birmingham, we will interrupt your 10 recross-examination when he arrives. 11 C.O. BROWN: With your permission. 12 MR. HILDEBRAND: May I correct what I said a moment 13 ago? I had in my mind I was thinking about the case against 14 transfers -- purchases from OID and SJID, rather than Merced 15 that you asked me about. 16 MR. BIRMINGHAM: I appreciate that clarification. 17 So, it was South Delta Water Agency's contention that 18 the transfer from Oakdale and South San Joaquin Irrigation 19 District to the Department of the Interior violated 3405 20 (A)(1)(i)? 21 MR. HILDEBRAND: That's correct. 22 MR. BIRMINGHAM: Now let's take a moment, if we can, 23 and just so the record is straight, Mr. Hildebrand, the 24 arguments of the United States that you considered devious 25 were arguments about the applicability of that section to CAPITOL REPORTERS (916) 923-5447 9513 1 the transfer we just identified? 2 MR. HILDEBRAND: That and other matters. 3 MR. BIRMINGHAM: Let's look at Subsection 3405 (A)(1). 4 Mr. Hildebrand, Subsection 3405 (a)(1) is entitled 5 "Conditions of transfers"; is that correct? 6 MR. HILDEBRAND: Yes. 7 MR. BIRMINGHAM: Subpart (i) is one of conditions of 8 transfers that is outlined in 3405 (A)(1)? 9 MR. HILDEBRAND: Yes. 10 MR. BIRMINGHAM: 3405 (A)(1) starts out with the words 11 "All transfers to Central Valley Project water authorized by 12 this subsection"; is that correct? 13 MR. HILDEBRAND: Yes. 14 MR. BIRMINGHAM: Now, we covered this before, Mr. 15 Hildebrand, but the water which Oakdale Irrigation District 16 and South San Joaquin Irrigation District transferred is not 17 Central Valley Project water, is it? 18 MR. HILDEBRAND: Let's go back here. If you will look 19 at Section 3403, Definitions, which has to be observed in 20 considering the meanings of subsequent sections, and Item 21 (f). You see that, Item (f)? 22 MR. BIRMINGHAM: Yes, I do. 23 MR. HILDEBRAND: That says that: 24 The term Central Valley Project water means 25 all water that is developed, diverted, stored CAPITOL REPORTERS (916) 923-5447 9514 1 or delivered by the Secretary in accordance 2 with the statutes authorizing Central Valley 3 Project in accordance with terms and 4 conditions of the water rights acquired 5 pursuant to California law. (Reading.) 6 Now, the lawyer contended that the water that was used 7 by OID and SJID was just a pass-through, that it was not 8 stored, was not delivered. I find that rather strange. 9 MR. BIRMINGHAM: But isn't it correct, Mr. Hildebrand, 10 that the water that is appropriated by Oakdale Irrigation 11 District and South San Joaquin Irrigation District is not 12 water that is developed or stored in CVP facilities? 13 MR. HILDEBRAND: No. I don't agree with that. 14 MR. BIRMINGHAM: Yesterday, Mr. Hildebrand, during the 15 cross-examination of Mr. Zuckerman, we introduced Westlands 16 Water District Exhibit 106. 17 Have you ever seen Westlands Water District 106? 18 MR. HILDEBRAND: Well, I am not sure that I have ever 19 seen it before or not. 20 MR. BIRMINGHAM: Are you familiar enough with the San 21 Joaquin River system to confirm that the facilities operated 22 by Oakdale and South San Joaquin Irrigation District are not 23 designated as Central Valley Project facilities on Westlands 24 Water District 106? 25 MR. HILDEBRAND: I don't know whether it is Designated CAPITOL REPORTERS (916) 923-5447 9515 1 that way on this chart or not. Certainly, the facilities 2 that were previously owned by those districts were 3 superseded and displaced by the New Melones Reservoir. And 4 the delivery water in those districts is no longer delivered 5 by them through their own facility. It's delivered by a 6 facility owned and operated by the Bureau, and it is stored 7 therein and delivered on an as-needed basis. 8 MR. BIRMINGHAM: Mr. Hildebrand, during your redirect 9 examination by Mr. Herrick, and this is a comment, I think, 10 that Mr. Brown picked up on this morning. You've indicated 11 that you don't know the effects of the Comprehensive Plan 12 you have proposed, and those effects won't be determined 13 until the plan is implemented; is that correct? 14 MR. HILDEBRAND: Well, I think that depends on our 15 definition of knowing the effects. That is a matter of 16 degree. It's not a white or black thing. 17 MR. BIRMINGHAM: During your response to questions 18 asked of you by Mr. Herrick on cross-examination, did you 19 say that you don't know the effects of the plan and that the 20 effects of the plan won't be determined until it is 21 implemented? 22 MR. HILDEBRAND: I don't recall whether I stated it 23 just that way. But the fact is that we've analyzed it 24 pretty thoroughly. There are some things, some biological 25 considerations, that are subject to determination by trial CAPITOL REPORTERS (916) 923-5447 9516 1 perhaps and subject to having new biological opinions that 2 are not based on faulty hydrology, things of that sort. 3 Although there have been trivial issues brought up, 4 whether there might be some contamination in the Newman 5 Wasteway that would get swept out by those releases, 6 although those would be kind of amazing in that there have 7 been releases before that. I don't know why there'd be more 8 contamination in the wasteway than in the river itself. 9 There have been different arguments presented that 10 don't make sense to me, but they all have to be addressed 11 and resolved. 12 MR. BIRMINGHAM: During your redirect examination by 13 Mr. Herrick, you indicated that you believed that South 14 Delta Water Agency members are entitled to a particular 15 level of water? 16 MR. HILDEBRAND: In the South Delta channels you are 17 talking about now, I assume? 18 MR. BIRMINGHAM: Yes. 19 Was that what you intended by your answer, Mr. 20 Hildebrand? 21 MR. HILDEBRAND: Will you repeat the question? 22 MR. BIRMINGHAM: Yes. In response to a question asked 23 of you by Mr. Herrick, you indicated that South Delta Water 24 Agency members are entitled to a particular water level? 25 MR. HILDEBRAND: I don't think you characterized my CAPITOL REPORTERS (916) 923-5447 9517 1 response on that correctly. What I said was that we were 2 entitled to protection from the drawdown of the export pumps 3 to water depths that would make it impossible to divert, or 4 in the absence of that export pumping, we would have enough 5 water. 6 MR. BIRMINGHAM: You also talked about the fact that 7 California water law sometimes requires that water users use 8 physical solutions to enhance the amount of water that is 9 available for use? 10 MR. HILDEBRAND: I don't recall on what context we were 11 discussing it. California water law does say that on 12 Sherman Island, for example, it is permissible to provide an 13 overland supply in lieu of their diversions from the 14 channels. But to generalize on that, you would have some 15 limitations. 16 MR. BIRMINGHAM: But you recognize that in some 17 circumstances the use of physical solutions are appropriate 18 in order to increase the amount of water that would be 19 available? For beneficial use. 20 MR. HILDEBRAND: That is the whole purpose of the tidal 21 barriers in the South Delta. 22 MR. BIRMINGHAM: One physical solution that would be 23 available to deal with water levels in South Delta channels 24 and the drawdown effect of export pumps would be dredging; 25 is that correct, Mr. Hildebrand? CAPITOL REPORTERS (916) 923-5447 9518 1 MR. HILDEBRAND: That is correct. It doesn't solve 2 some of the other problems. It could solve that problem. 3 But if you attempt to solve the level problem solely by that 4 method, you have to do an enormous amount of dredging. 5 MR. BIRMINGHAM: You also stated in response to a 6 question asked of you on redirect by Mr. Herrick that South 7 Delta Water Agency members are entitled, under certain 8 circumstances, I am paraphrasing your testimony, Mr. 9 Hildebrand, but in certain circumstances are entitled to 10 upstream storage? 11 MR. HILDEBRAND: Yes. 12 MR. BIRMINGHAM: And that upstream diverters are 13 obligated to pass-through to South Delta Water Agency water 14 users the -- 15 MR. HILDEBRAND: The unimpaired flow. 16 MR. BIRMINGHAM: -- the unimpaired flow. Thank you. 17 Now, has South Delta Water Agency ever gone to any 18 upstream diverter other than Bureau of Reclamation and 19 requested that they pass-through unimpaired flow? 20 MR. HILDEBRAND: The State Board, as I recall it, has 21 at times low water availability, which drained all 22 appropriators from diverting unimpaired flow. Sent out an 23 announcement to that effect. 24 MR. BIRMINGHAM: Has South Delta Water Agency ever gone 25 to upstream diverters and stated to them, "We are not CAPITOL REPORTERS (916) 923-5447 9519 1 receiving sufficient water, please pass-through the 2 unimpaired flow"? 3 MR. HILDEBRAND: I don't think we have done it 4 specifically to a specific case, but we have made this issue 5 before the State Board. And the State Board has on occasion 6 issued announcements that all appropriators must, indeed, 7 stop storing. 8 MR. BIRMINGHAM: Now, absent that announcement or 9 absent South Delta Water Agency notifying upstream 10 diverters, the upstream diverter would not be in a position 11 to know that South Delta Water Agency members are receiving 12 sufficient flows? 13 MR. HILDEBRAND: They could find that out. Nobody 14 knocks them over the head and points it out to them. But 15 they certainly have available to them the information about 16 the flow at Vernalis. The flow of Vernalis has been as low 17 as a hundred cfs. It's pretty obvious that that is not a 18 pass-through. 19 MR. BIRMINGHAM: So, if I understand it, you are 20 suggesting that it is the obligation of the upstream 21 diverter to inquire about South Delta Water Agency member 22 water supplies as opposed to waiting for South Delta to say 23 that they are not receiving adequate water? 24 MR. HILDEBRAND: Just how it should be policed, I am 25 not prepared to say. It doesn't seem to me that we have to CAPITOL REPORTERS (916) 923-5447 9520 1 wait until we are hurt in order to cause something like that 2 to be done. 3 MR. BIRMINGHAM: You were also asked a number of 4 questions by Mr. Herrick about your understanding of 5 biological opinions? 6 MR. HILDEBRAND: Yes. 7 MR. BIRMINGHAM: And you observed that it is your view 8 that the Comprehensive Plan can be implemented without 9 reconsultation under the biological opinions? 10 MR. HILDEBRAND: I indicate that there should be a new 11 biological opinion, but that the recirculation could be done 12 to a substantial degree within the scope of the existing 13 biological opinion. 14 MR. BIRMINGHAM: But, in order to implement the 15 recirculation plan, as you've described it, you would 16 acknowledge that reconsultation would have to be initiated? 17 MR. HILDEBRAND: I wouldn't say it would have to be. 18 I'd say it should be. 19 MR. BIRMINGHAM: Again, I think we have talked about 20 this, Mr. Hildebrand. The biological opinion for protection 21 of Delta smelt and the biological opinion for the protection 22 of winter-run chinook salmon imposes restrictions on 23 exports; is that correct? 24 MR. HILDEBRAND: That's correct. But I pointed out 25 within those faulty restrictions which did not -- were not CAPITOL REPORTERS (916) 923-5447 9521 1 based on correct hydrology. Even within those, it is still 2 possible to do a lot of recirculation. 3 MR. BIRMINGHAM: Still possible to do a lot of 4 recirculation, but it is not possible to do as much 5 recirculation as you would support? 6 MR. HILDEBRAND: I would support whatever amount could 7 be done under a more valid biological opinion. But we also 8 submitted the backup, that to whatever extent was decided 9 that we can't recirculate, you then buy water on the west 10 side rather than on the east side. Because when you buy it 11 on the east side, you inevitably reduce the flow at some 12 other point in time. 13 MR. BIRMINGHAM: My last question. I just want to make 14 sure that the record on this is clear. Actually, two 15 questions. 16 Your understanding of the San Luis Delta-Mendota Water 17 Authority support for your recirculation plan is that that 18 support is conditioned on the plan being implemented in a 19 no-net loss fashion? 20 MR. HILDEBRAND: To review that again. We developed 21 the concept of our overall Comprehensive Plan, which 22 includes recirculation in collaboration and in a series of 23 meetings which included Dan Nelson, included some 24 representatives from the east side tributaries and included 25 representation from Friant water users and from the exchange CAPITOL REPORTERS (916) 923-5447 9522 1 contractors. And in order to make this thing palatable for 2 all parties, South Delta pledged that we would urge a 3 Comprehensive Plan which was a no-net loss for all parties: 4 the contractors, the tributaries and the South Delta. And I 5 was assured emphatically by Mr. Nelson that as long as we 6 adhered to that basis he was and would continue to be 7 supportive of recirculation. 8 MR. BIRMINGHAM: It's still South Delta Water Agency's 9 position that recirculation should be implemented only to 10 the extent that it doesn't result in water reductions to 11 water users? 12 MR. HILDEBRAND: We consistently held to that view. We 13 don't think it is necessary to go beyond. 14 MR. BIRMINGHAM: I have no further questions. 15 C.O. STUBCHAER: Thank you, Mr. Birmingham. 16 Do staff have any recross-examination or questioning of 17 Mr. Hildebrand? 18 MR. HOWARD: No. 19 MS. LEIDIGH: No. 20 C.O. STUBCHAER: Board Members? 21 Mr. Brown. 22 ---oOo--- 23 RECROSS-EXAMINATION OF SOUTH DELTA WATER AGENCY 24 BY BOARD MEMBERS 25 C.O. BROWN: Water rights have been discussed as to the CAPITOL REPORTERS (916) 923-5447 9523 1 tailwater drainage and so forth into South Delta, and it's 2 been brought forth several times as to who may or may not 3 own that water right and you're entitled to which, I 4 suspect, is a question that may need to be answered some 5 day. 6 Do you think that this Board in our division should 7 include a bigger picture that would address the issue that 8 making sure that all waters within the state or within this 9 region are beneficially used? Or do you think it should be 10 more over a narrow focus as just to the right of water may 11 or may not pass-through South Delta? 12 MR. HILDEBRAND: I think in the final analysis you have 13 to look at rights, but you should start out by seeing how 14 can we make the most reasonable use of water in achieving 15 the maximum benefit for this overcommitted system. And if 16 there is a way to meet, fully meet, except for the rare, 17 extreme situations, to meet the Vernalis standard, standards 18 both for quality and for flow, and to do it so without 19 taking water away from the contractors, without taking it 20 away from the tributary people, without depriving the South 21 Delta of Delta inflow we need, then that is the way to do, 22 because that is the most reasonable use of water, and that 23 is the underlying premises in our Comprehensive Plan. Now, 24 once you come to that Comprehensive Plan for doing things, 25 and it appears to us that water rights cease to be a big CAPITOL REPORTERS (916) 923-5447 9524 1 problem because you are not depriving anybody. 2 C.O. BROWN: Thank you. 3 C.O. STUBCHAER: Any other questions? 4 Okay. Exhibits. 5 MR. HERRCIK: Thank you, Mr. Chairman. We do have a 6 number of exhibits to offer, and excuse me if I get some of 7 them wrong. I'll go slowly here. South Delta 1 through 9 8 were introduced through Mr. Orlob; 10 are the qualifications 9 of Mr. Orlob. I believe 11 and 12 are already accepted, and 10 so is 13. 11 Number 27 was the original testimony of Alex Hildebrand 12 for Phase II. And then when we made Phase II-A, we gave 13 part of that but didn't have that accepted into evidence 14 yet, that testimony. I believe we have already had 28, 15 qualifications of Alex Hildebrand. 34A is the amended 16 testimony of Dr. Orlob. And 51 is the Phase II-A testimony 17 of Mr. Hildebrand. 18 And so I would offer those exhibits into evidence. 19 MS. WHITNEY: Do you want 34 offered into evidence? 20 MR. HERRICK: 34, we will just remove that and not 21 offer. I don't know how to handle that, other than we are 22 not going to offer that. It was corrected through 34A. 23 C.O. STUBCHAER: Any other numbering questions? 24 Any objections to receipt of these exhibits? 25 MR. CAMPBELL: I would like to note one objection for CAPITOL REPORTERS (916) 923-5447 9525 1 the record, to a small portion of South Delta Water Agency 2 Exhibit 51. Page 4 in that testimony references 3 conversations with DF&G and U.S. Wildlife Service 4 personnel. That objection is on the ground of hearsay, and 5 we have been through this before. I am just noting that 6 objection for the record. 7 C.O. STUBCHAER: Thank you, Mr. Campbell. Your 8 objection is noted. 9 Any other objections? 10 Seeing none, the exhibits are accepted. 11 Thank you very much for your participation and your 12 endurance, Mr. Hildebrand. 13 MR. HERRICK: Thank you, Mr. Chairman. We can now 14 close Phase Hildebrand. 15 MEMBER FORSTER: Sounds like Alex needs to go home and 16 rest. 17 C.O. STUBCHAER: Mr. Machado, sir, good morning. 18 ASSEMBLYMAN MACHADO: Good morning. 19 MR. BIRMINGHAM: Excuse me, Mr. Chairman. Before we 20 move off of this, could we move for the introduction of 21 Westlands Exhibit 105, which is the recirculation schematic? 22 C.O. STUBCHAER: Yes. Any objection to the receipt of 23 -- if there are objections, we will take them up after the 24 break. 25 MR. O'LAUGHLIN: I will take mine up after. CAPITOL REPORTERS (916) 923-5447 9526 1 C.O. STUBCHAER: Let's just rule on that after the 2 break, Mr. Birmingham. 3 Please, Mr. Machado. 4 As you know, we're in the Bay-Delta Water Rights 5 proceeding in Phase II-A, which deals with water rights on 6 the San Joaquin River, and this phase especially deals with 7 the proposed San Joaquin River Agreement. 8 ASSEMBLYMAN MACHADO: Yes. I am aware of that, Mr. 9 Chairman. It's a fairly uncomplicated, simple subject as it 10 relates to me. 11 I want to thank you for the opportunity to come here 12 today before you to give you a policy statement. This 13 decision that you are facing is of great importance with 14 respect to the Vernalis Adaptive Management Plan. The Board 15 must decide how to regulate the San Joaquin River flows to 16 meet the 1995 Water Quality Control Plan. You have choices 17 whether to ratify and implement one of the currently 18 proposed plans or reject them all outright and allocate the 19 contribution to flows to the tributary to the San Joaquin 20 yourselves. 21 Your decision, I think, is of historical significance 22 because it will be one of the first actions taken that 23 either meets the CalFed objective to bring all participants 24 together, or it fails to do so and then undermines the goal 25 of CalFed. CAPITOL REPORTERS (916) 923-5447 9527 1 I am here today because of my concern about what the 2 San Joaquin River Group Authority and San Joaquin River 3 Agreement proposes to do. More importantly, I am here today 4 because what, in the words of the agreement's own sponsors, 5 that the agreement does not do. I am also concerned that 6 the agreement proposes to spend taxpayers' dollars without 7 adequate accountability. 8 The river agreement proposes to increase flows over 9 what is required by the standards of the San Joaquin River 10 during the months of April through May and October, over a 11 period of 12 years. The purpose, to evaluate flows, export 12 pumping, salmon smolt survival relationships and determine 13 what actions would enhance survival of fall-run chinook 14 salmon smolts should be taken. In exchange for contribution 15 of flows up to 110,000 acre-feet is to be provided by the 16 authority, and they are to be paid $4,000,000 in exchange on 17 an annual basis: 3,000,000 from the CVP account, 1,000,000 18 from the State Department of Water Resources. 19 On Page 4 of the summary report for the meeting the 20 flow objectives of the San Joaquin River, it states that one 21 of the agreements of the objective is to provide 22 environmental benefits in the Lower San Joaquin River Delta 23 at a level of protection equivalent to the San Joaquin River 24 portion of the 1995 Water Quality Control Plan for the 25 period of the agreement. CAPITOL REPORTERS (916) 923-5447 9528 1 Yet, on the following page, Page 5, the summary states 2 that it is not the purpose of the agreement to meet the 3 standards of the Water Quality Control Plan. The model 4 presented in the agreement shows no significant benefits to 5 the South Delta, Central Delta or the dissolved oxygen 6 problem at the City of Stockton. In fact, Mr. Falch [phon], 7 representing the Friant Water Users Association, last week 8 stated in my office that neither water quality nor the 9 dissolved oxygen problem would be helped by the proposed 10 agreement. Not only will the agreement not improve water 11 quality, but, also, in water short years it will serve to 12 exacerbate the problem in the South Delta and increase the 13 dissolved oxygen problem at Stockton, because flows normally 14 released in the mid and late summers will have been expended 15 earlier to make the April/May flows. 16 It has been stated before the Board that the State is 17 committed to ensuring the Delta outflow standards are met -- 18 that comes from the backstop statement -- and responsibility 19 for water quality along the San Joaquin River is the 20 Bureau's. The real problem is the river is overcommitted; 21 and in the course of this agreement, no action is being 22 proposed to affect the sources of the problem related to 23 water quality that occur throughout the river, upstream from 24 Vernalis. 25 What the agreement proposes is a stopgap measure of CAPITOL REPORTERS (916) 923-5447 9529 1 questionable results with over 48,000,000 of taxpayers 2 dollars to be spent over the next 12 years. The payment is 3 supposed to be for conservation measures that will be 4 developed to conserve water so that already committed water 5 is not used for pulse flows. But there are no plans 6 presented in the agreement for developing conserved water, 7 and the payments, as a result, could be mistaken as payments 8 for foregone opportunity costs for releasing water other 9 than ideal hydroelectric generation principals. 10 There is no program proposed as a part of the agreement 11 that would demonstrate the feasibility of conservation 12 efforts. There is no provision to account for the use of 13 the payments or any provision to measure the outcomes of 14 dollars expended for conservation measures. Rather, it 15 appears to be just more water subsidies at taxpayers' 16 expense. 17 The agreement does provide for fish control structure 18 at the Head of Old River, but does not implement the interim 19 Delta provisions, including agricultural barriers at Grant 20 Line Canal, Middle River and Old River. These measures 21 would provide water levels for agricultural uses in parts of 22 the South Delta, potentially improve water quality from the 23 tidal flows of the Sacramento River into the Central and 24 South Delta and improve flows of San Joaquin River that has 25 potential to mitigate the dissolved oxygen problem. CAPITOL REPORTERS (916) 923-5447 9530 1 I realize there are other agencies involved in terms of 2 the establishment of those issues. But, again, if you 3 looked in the framework of CalFed, it is to bring into 4 coordination the variety of agencies that would all get 5 better together. 6 It is recognized in the process of this that parts of 7 the South Delta, Airport Way South, would be negatively 8 impacted because of reduced summer flows. This further 9 emphasizes the need to add to the net flows of the San 10 Joaquin River and commence a plan to manage the salt load of 11 the river upstream from Vernalis. This agreement addresses 12 neither of these problems. 13 I mention that the decision of this issue would impact 14 the credibility of CalFed. Current discussions of the Phase 15 II report concern VAMP and programs to improve water quality 16 in the San Joaquin River and throughout the Delta, 17 facilitate ecosystem restoration, address the dissolved 18 oxygen problem at Stockton and deal with other quality and 19 water reliability issues for exporters and contractors. 20 If the proposed agreement is to be approved without 21 corrections to address the shortfalls that I have outlined, 22 what credibility is there for other proposed programs 23 dealing with the Delta and dealing with water quality and 24 water reliability issues? What confidence will there be in 25 the CalFed process if agencies will not begin now to CAPITOL REPORTERS (916) 923-5447 9531 1 coordinate their actions? 2 Collectively, we must improve the Delta and 3 California's waterways, particularly the San Joaquin River 4 upstream from Vernalis, for the sake of the environment, 5 for the public and the exporters, and do that instead of 6 adhering to the same old ways and spending more taxpayers' 7 money without discernible public benefit. 8 Absent a plan that involves all parties impacted by the 9 operation of the river, a plan that collectively addresses 10 the problem not only of the salmon, but also deals with the 11 problem of dissolved oxygen at Stockton and water quality 12 throughout the river, I believe that the river agreement 13 before you is woefully inadequate. 14 Although the San Joaquin River Agreement represents 15 several years of work and countless hours of meetings 16 amongst the parties to the agreement, the agreement does not 17 represent consensus among all the parties of the river. Yet 18 I am encouraged that with the knowledge we have today of the 19 need for a comprehensive solution in the Delta and 20 associated waterways as proposed by CalFed, parties to the 21 San Joaquin River Agreement have indicated a willingness to 22 reopen discussion of the river agreement. And it is 23 recognized that without the inclusion of the concerns and 24 solutions for the South and Central Delta and the dissolved 25 oxygen problem at Stockton, then there will not be support CAPITOL REPORTERS (916) 923-5447 9532 1 for the appropriations necessary to implement the 2 agreement. 3 Therefore, in order to allow an attempt to revisit the 4 river agreement and address the concerns cited, I urge you 5 to consider to hold the San Joaquin River Agreement in 6 abeyance until such time that a plan is proposed that is 7 consistent with the objectives of CalFed and is accountable 8 to the taxpayers. 9 Furthermore, to facilitate focus on the resolution of 10 the issues, I urge the Board to also hold in abeyance 11 consideration of allocation of the river for a period 12 necessary to renegotiate the river agreement. 13 We can proceed, but without an appropriation, 14 resolution of the river defaults to the Board. We can 15 proceed, but without consensus, resolution of the river 16 defaults to the Board. This decision can become a historic 17 benchmark in coming to terms with managing limited water 18 resources for agricultural, the environment and respecting 19 water rights while at the same time improving water 20 quality. 21 By holding in abeyance the river agreement and 22 allocation of the river, I believe we all have the 23 opportunity for solutions and not litigation. Absent that, 24 I think we will have a continuing basis of hearings for many 25 years to come as to what the solution would be. CAPITOL REPORTERS (916) 923-5447 9533 1 Thank you for the opportunity to be here today, and am 2 able to answer any questions that you might have. 3 C.O. STUBCHAER: Thank you very much for your 4 statement. 5 Are there any questions of Mr. Machado? 6 C.O. BROWN: We appreciate your input. Thank you for 7 coming over. 8 ASSEMBLYMAN MACHADO: Thank you very much. 9 C.O. STUBCHAER: All right. The next order of business 10 will be the direct case of the Stockton East Water District. 11 MR. BIRMINGHAM: I again would move for the admission 12 of Westlands Water District exhibits. 13 C.O. STUBCHAER: Just a minute, please. 14 Ordinarily this is the time when we take our morning 15 break. 16 Mr. Machado, would you like to hear the presentation of 17 Stockton East Water District? 18 ASSEMBLYMAN MACHADO: As they are my constituents, I 19 would like to. 20 C.O. STUBCHAER: We will proceed with that. We will 21 defer action on the exhibits. 22 Good morning, Ms. Zolezzi. 23 MS. ZOLEZZI: Good morning. Thank you. 24 For the record, Jeannie Zolezzi, representing the 25 Stockton East Water District. And it's a pleasure this CAPITOL REPORTERS (916) 923-5447 9534 1 morning for Stockton East Water District to make its opening 2 statement following our local Legislator, Mike Machado. We 3 appreciate his hands-on involvement that he has taken on the 4 San Joaquin River and look forward to continued dialogue 5 with him on this issue. 6 As you well know as Board Members, the Stockton East 7 Water District is critically concerned with operations of 8 the New Melones Project. As you also know, releases from 9 that reservoir downstream for purposes other than CVP 10 contractors directly reduced the quantity of water available 11 to CVP contractors, which Stockton East Water District is 12 one. The District was not included in the San Joaquin River 13 Agreement negotiations, as we have stated again and again. 14 It was a surprise to us when the parties to that 15 agreement came to us and told us that the Interim Operation 16 Plan that we had agreed to for a two-year period on New 17 Melones would now be in place for 12 years. We know that 18 the releases currently made for fishery purposes from New 19 Melones Reservoir are far in excess of what is needed for 20 the Stanislaus River fishery. In fact, testimony given 21 during Phase 5 of these hearings finally acknowledged and 22 put into the record that there is no scientific support for 23 the current flow regime. 24 Stockton East Water District is committed to pursuing a 25 long-term plan for operation of New Melones Reservoir that CAPITOL REPORTERS (916) 923-5447 9535 1 includes fish flows that are based upon scientific evidence 2 of what the Stanislaus River fishery needs. The result, in 3 our opinion and based upon the facts that your fishery 4 experts have put together, would be significantly reduced 5 fish flows and significantly increased deliveries to CVP 6 contractors. 7 However, we also must acknowledge the benefits that can 8 be provided by the San Joaquin River Agreement and the VAMP 9 studies that it puts in place. It's important that the VAMP 10 studies be undertaken because the scientific information to 11 be produced from those studies is sorely needed on the San 12 Joaquin River. And the San Joaquin River Agreement does 13 provide a mechanism for undertaking those studies while 14 maintaining the status quo for the next 12 years. 15 We also must recognize that the San Joaquin River 16 Agreement was amended at our request to recognize that a 17 long-term plan for New Melones is being negotiated. In 18 Section 5.4, the agreement acknowledges that a long-term 19 plan of operation may differ from current operation of New 20 Melones Reservoir. We also acknowledge, as Assemblyman 21 Machado did today, that the San Joaquin River Agreement does 22 not address the serious water quality problems in the San 23 Joaquin River. We also noted that in Phase 5. 24 We would not put upon the San Joaquin River Agreement 25 to do that. We are looking to this Board to do that, unless CAPITOL REPORTERS (916) 923-5447 9536 1 it is rolled into a broader San Joaquin River Agreement 2 process. As you know, we believe that that issue must be 3 resolved. 4 For 25 years the agencies on the San Joaquin River have 5 looked to this Board and the Regional Board to solve that 6 problem to no avail. And so as he asked you in Phase 5, 7 address that problem in these proceedings, and this is the 8 opportunity to solve the water quality problem, to set forth 9 how it will be solved and in a timely manner. 10 Because of the importance of the studies and because 11 the agreement accommodates our desire to continue to work on 12 a New Melones long-term operations plan that could address 13 the needs of the San Joaquin County interest for more water 14 supplies and more water quality flows, the Stockton East 15 Water District Board has agreed to conditionally support the 16 San Joaquin River Agreement before this Board. But our 17 support is conditioned. 18 First, upon the assumption that no changes will be made 19 by this Board to the water right permits held by the United 20 States for the New Melones Project. No permit amendments 21 are needed, in our opinion. None have been requested by the 22 San Joaquin River Group or the United States, and we would 23 vigorously oppose any such amendments. 24 Second, our support is conditioned upon successful 25 completion of a Memorandum of understanding currently being CAPITOL REPORTERS (916) 923-5447 9537 1 negotiated between Stockton East Water District, the City of 2 Stockton and some of the members to the San Joaquin River 3 Agreement. This memorandum is intended to recognize the 4 importance of water agencies in the San Joaquin River system 5 providing support to one another for their mutual 6 goals. And part of this support will include support for 7 San Joaquin County interest in meeting their goals through 8 the Legislature and through the CalFed process. 9 We would also support the concept set forth by 10 Assemblyman Machado this morning. It is, obviously, our 11 goal in our ongoing negotiations with certain members of the 12 San Joaquin River Group to work jointly with those parties 13 to accomplish our mutual goals. And we agree that this 14 process could be addressed more directly through 15 renegotiation of the San Joaquin River Agreement, and we 16 would fully participate in and support such a process. 17 We would support the concept set forth this morning of 18 renegotiation provided that all the parties are fully 19 protected during those negotiations. 20 In conclusion, if this Board determines to proceed with 21 the San Joaquin River Agreement, the Stockton East Water 22 District would conditionally support that adoption as a 23 voluntary settlement among the parties to temporarily 24 implement the San Joaquin River flow component of the Water 25 Quality Control Plan, provided there are no amendments to CAPITOL REPORTERS (916) 923-5447 9538 1 the New Melones permits. 2 We would also support reopening those negotiations to 3 include all parties in order to reach a comprehensive 4 agreement. We stand ready to work cooperatively with the 5 parties to the San Joaquin River Agreement to address the 6 difficult issues facing the Stockton East Water District, 7 the City of Stockton and San Joaquin County. 8 We welcome the assistance of the members of the San 9 Joaquin River Group and of Assembly Member Machado toward 10 that end. 11 Thank you very much. 12 C.O. STUBCHAER: Thank you, Ms. Zolezzi, for your 13 opening statement, I understand you have no evidence to 14 present in this phase. 15 MS. ZOLEZZI: That is correct. We will have a closing 16 brief, but we have no witnesses. 17 C.O. STUBCHAER: Thank you. 18 C.O. BROWN: Question, Mr. Chairman. 19 C.O. STUBCHAER: Mr. Brown. 20 C.O. BROWN: Clarification question, Ms. Zolezzi. 21 Your MOU was with City of Stockton, Stockton East Water 22 District, Central San Joaquin and who else? 23 MS. ZOLEZZI: It is currently being negotiated with the 24 Friant Water Users Authority and Exchange Contractors 25 Authority. And the intent of that is, once those parties CAPITOL REPORTERS (916) 923-5447 9539 1 have agreed to the memorandum, which is now in draft final 2 form and will be going to Friant Board and Stockton East 3 Board in the next two weeks, is to bring that MOU to the 4 broader San Joaquin River Agreement parties and, hopefully, 5 encourage additional parties to sign on and provide mutual 6 assistance to the goals that we are pursuing through CalFed 7 and the Legislature. 8 C.O. BROWN: This is the City, Stockton East, Central 9 San Joaquin -- 10 MS. ZOLEZZI: Central San Joaquin is currently not a 11 party, although they could be in an expanded effort. 12 C.O. BROWN: And the Exchange Contractors and Friant? 13 MS. ZOLEZZI: And Friant, yes. 14 C.O. STUBCHAER: Ms. Forster. 15 MEMBER FORSTER: Jeannie, on this issue of 16 renegotiating the San Joaquin River Agreement, will we hear 17 something about that tomorrow in our afternoon workshop? 18 How will we get information whether this is valid? Or how 19 are we going to get the appropriate information on what this 20 means as we are still in this phase and then talking about 21 things tomorrow? 22 MS. ZOLEZZI: I think that is going to have to come 23 from the river agreement parties and this Board. I think 24 what is needed by those parties, and I cannot speak for 25 them, as we have seen in these phases, is the protection. CAPITOL REPORTERS (916) 923-5447 9540 1 That while there is opportunity to renegotiate, there are no 2 flow requirements imposed on any party, that we all have a 3 chance to go to the table and renegotiate a settlement 4 without the pressures, and that is a difficult decision, I 5 think, for this Board to provide that protection. 6 MEMBER FORSTER: I have one more question. 7 As we have been meeting here, have you been at the 8 table? Has there been meetings going on where you have been 9 communicating and being felt that you are being included 10 instead of excluded? 11 MS. ZOLEZZI: Yes, with a qualification. The 12 difficulty is the timing. The San Joaquin River Agreement 13 is in existence. Our understanding, and it is understood, 14 is that it took a long time to get that agreement in place. 15 They are moving forward with that agreement, and it is too 16 late except for some process like was introduced today to 17 start over. 18 Consequently, we believe given that set of facts, we 19 have been now included. We have been in very good 20 negotiations with Friant and with the exchange contractors. 21 We are excited about the possibility of what that agreement 22 provides. We have been discussing these items with the 23 broader parties to the agreement, and we hope that they will 24 become party to this MOU. 25 So, within the context that we are given today, yes, we CAPITOL REPORTERS (916) 923-5447 9541 1 are being included, and we are moving forward on an MOU. 2 That is very different than being included from the 3 beginning, but we are doing the best we can with what we 4 have today. If there is another way to do it that protects 5 all the parties and allows us to go back and be included, we 6 are supportive of that, as well. 7 MEMBER FORSTER: Where do you see this fitting into our 8 process? We have been becoming aware of what is being 9 accomplished out there. 10 MS. ZOLEZZI: I think you're going to have to ask the 11 river group people that question. We would be supportive. 12 But, obviously, not being a party to that agreement, we 13 can't push that forward. We can support it, and we will. 14 C.O. STUBCHAER: Thank you, Ms. Zolezzi. 15 Next will be the opening statement of the City of 16 Stockton, Ms. Cahill. 17 Good morning. 18 MS. CAHILL: Good morning, Chairman Stubchaer and 19 Members of the Board and Assemblyman Machado. Virginia 20 Cahill giving the opening statement on behalf of the City of 21 Stockton in Phase II-A. 22 You have just heard Assemblyman Machado speak about the 23 need for a comprehensive solution to the San Joaquin River 24 water supply and water quality problems, including dissolved 25 oxygen near the City of Stockton. The City recognizes CAPITOL REPORTERS (916) 923-5447 9542 1 dissolved oxygen and the other water quality issues as 2 important issues and has presented testimony on those 3 matters to the Board in Phase V. 4 A comprehensive solution is ultimately in the City's 5 interest. The City needs fresh water for urban uses and 6 recharge of the overdrafted aquifers of the eastern part of 7 San Joaquin County, and we need higher dissolved oxygen 8 levels in the San Joaquin River at certain times of the 9 year. 10 It is true that the San Joaquin River Agreement 11 addresses largely the pulse flows for fish in the river, and 12 it was not designed to address all the water quality 13 problems. Assemblyman Machado has proposed a new approach, 14 and the parties and the Board will undoubtedly give that 15 serious consideration. 16 Of the alternatives currently before the Board and 17 analyzed in the Draft EIR, the City believes that the San 18 Joaquin River Agreement is the most viable. As the City has 19 done on other matters, we encourage and support every effort 20 to gain more scientific information regarding the Delta and 21 its tributaries to permit informed program decisions later 22 on. 23 The City, thus, supports the concept of the Vernalis 24 Adaptive Management Plan. The City believes it is necessary 25 to collect data in order to make an informed decision on the CAPITOL REPORTERS (916) 923-5447 9543 1 level of pulse flows at Vernalis and export limitations 2 needed to protect the fishery resources of the San Joaquin 3 River. 4 If the flows at Vernalis are set too low, the fish may 5 be harmed. If they are set too high, water users would be 6 be deprived of water needed for other beneficial uses. 7 There's several considerations that are important to 8 the City. First, the San Joaquin River Agreement is for a 9 limited duration. As I understand it, at the end of the 10 12-year term, which may now only be 11 years by the time it 11 is signed, the agreement will terminate. The VAMP data will 12 be analyzed and the State Board will revisit the question of 13 responsibility for water quality plan flows, which may 14 themselves have changed by then due to subsequent and future 15 triennial reviews. 16 Secondly, the agreement provides, as Ms. Zolezzi noted, 17 that the Inter New Melones Operation Plan, which was assumed 18 in the agreement may be changed if the Stanislaus River 19 stakeholders are able to arrive at a new long-term New 20 Melones operation plan. In the May 6th revised hearing 21 notice, key issue Number 5 asked with respect to negotiated 22 agreements whether the Board should make changes in terms of 23 the parties' water rights. We do not believe that it would 24 be appropriate to make changes in the New Melones permits to 25 incorporate the provisions of the San Joaquin River CAPITOL REPORTERS (916) 923-5447 9544 1 Agreement. The long-term management plan for New Melones is 2 not yet complete. The final Vernalis pulse flows, which are 3 to be determined after the VAMP experiment, are not yet 4 known. 5 We believe that a simple water rights order of the 6 Board accepting the agreement for the 12-year period would 7 be sufficient, particularly given that the parties have 8 contractually obligated themselves to live up to that 9 agreement. It is certainly true that the agreement does not 10 address all the water quality issues. Specifically, we note 11 that the Paragraph 12.1 of the agreement points out that the 12 San Joaquin River Agreement shall not affect the 13 responsibility of the San Joaquin River Group Authority 14 members to mitigate impacts on water quality resulting from 15 discharges of waste into the San Joaquin River or its 16 tributaries. 17 Those responsibilities were, however, addressed during 18 Phase V of these hearings. And if there is to be a 19 comprehensive solution, it would either need to take the 20 form addressed by Assemblyman Machado, or it would need to 21 be a combination of the San Joaquin River Agreement and 22 additional water quality measures that the Board would end 23 up with as a result of Phase V. 24 Finally, it is important to the City to note that 25 nothing in the San Joaquin River Agreement -- I am sorry, CAPITOL REPORTERS (916) 923-5447 9545 1 let me start over. 2 It is important for the City that nothing in the San 3 Joaquin River Agreement preclude the Board from considering 4 and acting upon the City's own water rights application, 5 Number 30531, during the 12-year duration of the agreement. 6 We believe that once the San Joaquin River Agreement is in 7 place, if it is accepted by this Board, it will not prevent 8 the Board from normal processing of application 30531. 9 During Phase II last summer, Mr. Robbins testifying on 10 behalf of the proponents to the agreement, agreed that 11 nothing in the agreement would preclude the Board from 12 processing the City's water rights application. 13 We would ask the proponents of the agreement to agree 14 on the record that if this Board adopts the San Joaquin 15 River Agreement, that the City of Stockton will be given the 16 opportunity to sign the agreement as an additional party if 17 it chooses to do so. The proponents of the agreement have 18 stressed that this is a consensus agreement. If so, there 19 should be no objection to permitting the City to become a 20 party to the agreement so long as it is willing to accept 21 the responsibilities that the agreement imposes on all 22 parties. 23 The City, which receives surface water from Stockton 24 East Water District, will certainly be affected by the 25 agreement. We have been told in informally by CAPITOL REPORTERS (916) 923-5447 9546 1 representatives of current parties that there should be no 2 problem with our signing. We ask them to formally affirm on 3 the record prior to the end of this phase that the City will 4 be permitted to become a party if the Board approves the 5 agreement and the City chooses to become a party. 6 We will not today be presenting any witnesses in our 7 case in chief. However, I would like to move for admission 8 of two of our exhibits which were previously submitted on 9 June 15th, and then later we indicated that our Phase II 10 exhibits were the same as Phase II exhibits [verbatim]. 11 Stockton Exhibit 3 is a map of the City, showing the 12 boundary of the Delta as defined in Water Code Section 13 12200. It would be judicially noticeable under Evidence 14 Code Section 552 (H) as a fact or proposition not reasonably 15 subject to dispute. 16 We would also move for admission of Stockton Exhibit 9, 17 which was offered by reference, which is a copy of the 18 City's water rights application. It is located in the 19 Board's file for application 30531, and the Board can take 20 judicial or administrative notice of its own files. 21 C.O. STUBCHAER: Ms. Whitney, does that numbering jive 22 with yours? 23 MS. WHITNEY: Yes, it does. 24 C.O. STUBCHAER: Any objection to receipt of these 25 exhibits into the record? CAPITOL REPORTERS (916) 923-5447 9547 1 Seeing none, they are accepted. 2 MS. CAHILL: Thank you. 3 C.O. STUBCHAER: Thank you very much, Ms. Cahill. 4 Now, Mr. Birmingham, and Mr. O'Laughlin, the exhibits. 5 MR. BIRMINGHAM: I move admission of Westlands 105. 6 C.O. STUBCHAER: Any objections? 7 Receipt of Exhibit 105. 8 Seeing none, it is accepted. 9 Was 106 accepted previously? 10 MS. LEIDIGH: Yes, yesterday. 11 C.O. STUBCHAER: Mr. O'Laughlin. 12 MR. O'LAUGHLIN: I move for admittance of San Joaquin 13 River Group Authority 29, 30 and 31 with the understanding 14 that I will, of course, mail those exhibits out to all the 15 parties this week with a revised exhibit list. 16 C.O. STUBCHAER: Any objections? 17 MS. WHITNEY: We have received one copy. We also need 18 additional copies. 19 MR. O'LAUGHLIN: That will all be done this week. 20 C.O. STUBCHAER: Seeing no objections, it is accepted. 21 According to my schedule, we have no further business 22 to conduct today. We have the National Heritage Institute 23 and the cross-examination of Save San Francisco Bay 24 Association resuming tomorrow and the workshop tomorrow 25 afternoon. CAPITOL REPORTERS (916) 923-5447 9548 1 Is there any disagreement with my understanding? 2 That being the case, we are adjourned until 9:00 a.m. 3 tomorrow. 4 (Hearing adjourned at 10:40 a.m.) 5 ---oOo--- 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 9549 1 REPORTER'S CERTIFICATE 2 3 4 STATE OF CALIFORNIA ) ) ss. 5 COUNTY OF SACRAMENTO ) 6 7 8 I, ESTHER F. WIATRE, certify that I was the 9 official Court Reporter for the proceedings named herein, 10 and that as such reporter, I reported in verbatim shorthand 11 writing those proceedings; 12 That I thereafter caused my shorthand writing to be 13 reduced to typewriting, and the pages numbered 9508 through 14 9549 herein constitute a complete, true and correct record 15 of the proceedings. 16 17 IN WITNESS WHEREOF, I have subscribed this certificate 18 at Sacramento, California, on this 13th day of February 19 1999. 20 21 22 23 24 ______________________________ ESTHER F. WIATRE 25 CSR NO. 1564 CAPITOL REPORTERS (916) 923-5447 9550