STATE WATER RESOURCES CONTROL BOARD PUBLIC HEARING 1998 BAY-DELTA WATER RIGHTS HEARING HELD AT: BONDERSON BUILDING 901 P STREET SACRAMENTO, CALIFORNIA THURSDAY, JANUARY 28, 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: 9567 4 SAVE THE SAN FRANCISCO BAY ASSOCIATION: WILLIAM KIER 5 ELIZABETH ANDREWS CROSS-EXAMINATION: 6 BY MR. BIRMINGHAM 9568 BY MR. O'LAUGHLIN 9606 7 8 AFTERNOON SESSION - WORKSHOP: 9662 9 GUEST SPEAKERS: ASSEMBLYMAN CARDOZA 9665 10 CONGRESSMAN CONDIT'S STATEMENT READ 9667 SENATOR MONTEITH 9670 11 SENATOR COSTA'S LETTER READ 9672 SENATOR POOCHIGIAN'S LETTER READ 9726 12 REPRESENTATIVES: 13 MR. LILLY 9675 MR. ALADJEM 9679 14 MR. NOMELLINI 9681 MR. MADDOW 9687 15 MR. SCHULZ 9694 MR. ETHERIDGE 9703 16 MR. HERRICK 9707 MR. O'LAUGHLIN 9713 17 MR. SUYEYASU 9721 MR. BRANDT 9727 18 MS. HARRIGFELD 9731 MR. SANDINO 9734 19 MR. JACKSON 9734 20 DISCUSSION 9749 21 22 ---oOo--- 23 24 25 CAPITOL REPORTERS (916) 923-5447 9566 1 SACRAMENTO, CALIFORNIA 2 JANUARY 28, 1999 3 ---oOo--- 4 C.O. STUBCHAER: Good morning. We reconvene the 5 Bay-Delta Water Rights hearing. Before we continue with the 6 cross-examination of this panel Mr. Aladjem, I think, wishes 7 to address us. 8 MR. ALADJEM: Good Morning, Mr. Stubchaer, Mr. Brown. 9 David Aladjem, Downey, Brand, Seymour & Rohwer, on behalf of 10 a number of Sacramento Valley water users. 11 I just want to clarify for the record, we have a number 12 of questions on cross-examination for the Save the Bay 13 witnesses. However, all of our questions really relate to 14 issues that we anticipate being taken up by the Board in 15 Phase VIII. We would like to reserve the ability to call 16 these witnesses back during Phase VIII if that becomes 17 germane. 18 C.O. STUBCHAER: It is my understanding that you can do 19 that. You may have to call them back as adverse witnesses, 20 and you possibly run the risk of not having your examination 21 on the record should the Board reach a phased -- I won't say 22 interim -- phased decision before Phase VIII. 23 MR. ALADJEM: Obviously, we understand, Mr. Stubchaer. 24 If, obviously, the issues we are concerned about are taken 25 care of in an order on Phases II through VII, that is CAPITOL REPORTERS (916) 923-5447 9567 1 something we are willing to deal with. 2 C.O. STUBCHAER: Very well. 3 MR. ALADJEM: Thank you, sir. 4 C.O. STUBCHAER: Mr. Birmingham. 5 MR. BIRMINGHAM: Good morning, Mr. Chairman. 6 Mr. O'Laughlin was next in order of cross-examination. 7 I've spoken with him. I have a meeting at 10:00 that I have 8 to go to, and my cross-examination should take less than an 9 hour. I wonder if I could replace Mr. O'Laughlin in the 10 order, and he would come after me? 11 C.O. STUBCHAER: Are there any objections? 12 Seeing none, please proceed, Mr. Birmingham. 13 Good morning to the panel and Ms. Koehler. 14 ---oOo--- 15 CROSS-EXAMINATION OF SAVE THE SAN FRANCISCO BAY ASSOCIATION 16 BY SAN LUIS AND DELTA MENDOTA WATER AUTHORITY AND 17 WESTLANDS WATER DISTRICT 18 BY MR. BIRMINGHAM 19 MR. BIRMINGHAM: Ms. Andrews, Mr. Kier, My name is Tom 20 Birmingham. I am an attorney that represents the San Luis 21 Delta-Mendota Water Authority and Westlands Water District. 22 The first questions that I have are addressed to Ms. 23 Andrews. In preparation of your testimony, you reviewed the 24 Draft Environmental Impact Report prepared by the Water 25 Board in connection with these proceedings? CAPITOL REPORTERS (916) 923-5447 9568 1 MS. ANDREWS: Yes, I did. 2 MR. BIRMINGHAM: Did you compare the alternatives for 3 implementing the 1995 Water Quality Control Plan that are 4 described in the Draft Environmental Impact Report? 5 MS. ANDREWS: Selected as bits of those alternatives, 6 yes. 7 MR. BIRMINGHAM: Then, based on a comparison of 8 alternatives, you concluded that Alternative 5 is the 9 alternative that comes closest to mimicking the unimpaired 10 hydrograph of streams that are tributary to the San Joaquin 11 River? 12 MS. ANDREWS: More or less. My testimony is that the 13 flows in Alternative 5 do the best job of providing 14 something like a reduced in magnitude, but somewhat natural 15 high flow event for an extended period of time. 16 MR. BIRMINGHAM: That conclusion is based upon your 17 review of the unimpaired hydrograph with streams tributary 18 to the San Joaquin River? 19 MS. ANDREWS: It is based on two facts. One is that 20 Alternative 5 is the only one of the alternatives that 21 actually requires flow down the upper San Joaquin and each 22 of the other tributary streams to Vernalis. And, secondly, 23 that that alternative is the one that comes closest to 24 meeting the working paper flow requirements. 25 I did not at the time I prepared my testimony CAPITOL REPORTERS (916) 923-5447 9569 1 specifically compare the flows that would be created by any 2 of the alternatives to the unimpaired conditions on each of 3 the individual streams, although that certainly is something 4 that would have been appropriate to do in the EIR. 5 MR. BIRMINGHAM: In the analysis that you performed, 6 you looked at how the flows under Alternative 5 compared 7 with flows in other alternatives would benefit the stream 8 system, and you characterized that by the upstream flow 9 requirements? 10 MS. ANDREWS: I compared the flows under the 11 alternatives to the 1995 Anadromous Fish Restoration Plan 12 Working Paper flow requirements. I know those flows, in 13 general, to be far less than the unimpaired flow condition 14 flows, and I did not take an additional step of specifically 15 comparing the unimpaired flow estimates to the alternative 16 flow estimates. 17 MR. BIRMINGHAM: But, Ms. Andrews, the basic point is 18 that your testimony focuses on the effects in the upstream 19 basin; is that correct? 20 MS. ANDREWS: That's generally true, although I did 21 observe in my testimony that the Draft Environmental Impact 22 Report noted that, in general, the condition of the aquatic 23 resources in the Bay/Delta improves as the hydrologic regime 24 moves toward unimpaired conditions. That certainly refers 25 to the entire Bay-Delta. CAPITOL REPORTERS (916) 923-5447 9570 1 In addition, its similar, specific finding with 2 Alternative 5 is found with regard to the Bay-Delta system 3 as a whole. I would have to look -- take a moment to look 4 in the Draft Environmental Impact Report if you want the 5 exact quote. 6 MR. BIRMINGHAM: But the primary focus of your 7 testimony is on the effects of different alternatives in the 8 streams that are tributary to the San Joaquin River as 9 opposed to the effects in the Delta? 10 MS. ANDREWS: Correct. 11 MR. BIRMINGHAM: And more specifically, your analysis 12 focused on how the different alternatives would affect the 13 channels of streams tributary to the San Joaquin River? 14 MS. ANDREWS: I would not characterize my testimony in 15 that way. The flow regime is critical to creating and 16 maintaining a certain channel shape, and that would be an 17 important aspect of a flow regime to look at it. It was not 18 something that was looked at in the Environmental Impact 19 Report nor is it something that I had an opportunity to look 20 into in the preparation of my testimony. 21 But, yes, the flow regime, and particularly the higher 22 flows that transport most of the sediments, are absolutely 23 critical to shaping both the microscale within the channel 24 and the shape of the channel and adjoining flood plains, as 25 well. CAPITOL REPORTERS (916) 923-5447 9571 1 MR. BIRMINGHAM: Other than the two general statements 2 that you just referred to a moment ago concerning the 3 impacts of Alternative 5 on the Bay-Delta, the analysis that 4 you performed and reported in your testimony, Save the Bay 5 Exhibit 1, doesn't include an analysis of the effects of all 6 of the different alternatives on the Delta? 7 MS. ANDREWS: That's correct. 8 MR. BIRMINGHAM: On Page 6 of Save the Bay Exhibit 1 9 you state: 10 Thus, Alternative 5 is far more likely to 11 benefit the ecosystems of the entire San 12 Joaquin Basin than the mechanistic effort to 13 simply add water as need -- (Reading.) 14 MS. ANDREWS: Should be as needed. 15 MR. BIRMINGHAM: -- at Vernalis without regard to 16 the source and route traveled to get there. 17 (Reading.) 18 Is that correct? 19 MS. ANDREWS: That's correct. 20 MR. BIRMINGHAM: That conclusion is based on the 21 effects of Alternative 5 on the geomorphologic processes of 22 the streams that are tributary to the San Joaquin River? 23 MS. ANDREWS: Not simply the geomorphic processes, but 24 the ecosystem functions which I described on Tuesday when 25 presenting my direct testimony. CAPITOL REPORTERS (916) 923-5447 9572 1 MR. BIRMINGHAM: Isn't it correct that those ecosystem 2 functions are dependent upon the geomorphologic processes? 3 MS. ANDREWS: Not entirely. For example, the nutrient 4 transferred when rivers flood outside of the channel onto 5 the flood plain is not specifically a geomorphic process. 6 It's strictly determined by the flow regime, as one 7 example. There are probably some others. 8 MR. BIRMINGHAM: On Page 1 of Save the Bay Exhibit 1 9 you state: 10 The issue before the Board in Phase II-A is 11 to identify the most appropriate alternative 12 for implementing the flow dependent 13 objectives in the San Joaquin River Basin 14 consistent with the a number of 15 considerations, including appropriate 16 protection of fish, wildlife and other public 17 trust uses. (Reading.) 18 Is that correct? 19 MS. ANDREWS: That's correct. 20 MR. BIRMINGHAM: In making that statement you have 21 mentioned one of the considerations that the -- one of the 22 factors that would be considered by the Board in selecting 23 the appropriate alternative, in particular protection of 24 public trust uses? 25 MS. ANDREWS: That's correct. CAPITOL REPORTERS (916) 923-5447 9573 1 MR. BIRMINGHAM: Your analysis didn't include the 2 effect of the different alternatives on other factors that 3 the Board would consider in selecting the appropriate 4 alternative for implementation of the 1995 Water Quality 5 Control Plan? 6 MS. ANDREWS: No, it did not. 7 MR. BIRMINGHAM: Your analysis did not consider the 8 effect of different alternatives for implementing the 1995 9 Water Quality Control Plan on the water supply of the water 10 users who rely on water appropriated from streams tributary 11 to the San Joaquin River? 12 MS. ANDREWS: No, it did not. 13 MR. BIRMINGHAM: Nor did your analysis consider the 14 effects of different alternatives on water supply of water 15 users who rely on exports from the Delta? 16 MS. ANDREWS: No, it did not. 17 MR. BIRMINGHAM: Mr. Kier, I have just a few questions 18 for you. 19 On Page 1 of your testimony, Save the Bay Exhibit 3, 20 you state that the Board has assumed, simply by implementing 21 the Vernalis standard, it will achieve the narrative 22 standard contained in the 1985 Water Quality Control Plan. 23 Is that correct? 24 MR. KIER: Yeah. Certainly implied. 25 MR. BIRMINGHAM: Well, under the first -- the paragraph CAPITOL REPORTERS (916) 923-5447 9574 1 that is labeled Number 1 on Page 1 of Save the Bay Exhibit 2 3: 3 The Board's assumption that it will achieve 4 the narrative standard calling for doubling 5 of chinook salmon in the San Joaquin Basin 6 simply by implementing the Vernalis standard 7 is infeasible. (Reading.) 8 MR. KIER: That's right. 9 MR. BIRMINGHAM: That statement implies that the Board 10 has made an assumption in the 1995 Water Quality Control 11 Plan that simply by implementing the Vernalis standard it 12 will achieve the narrative standard for the protection of 13 salmon? 14 MR. KIER: Correct. 15 MR. BIRMINGHAM: Mr. Kier, if I were to assume that you 16 based that statement on a review of 1995 Water Quality 17 Control Plan, would my assumption be correct? 18 MR. KIER: I reviewed the plan in part. 19 MR. BIRMINGHAM: You reviewed the plan or that portion 20 of the plan dealing with the narrative standard for 21 protection of salmon? 22 MR. KIER: I think it is more correct to say that I 23 reviewed the EIR and the alternatives that the Board had 24 under consideration in the EIR. 25 MR. BIRMINGHAM: Do you have a copy of the 1995 Water CAPITOL REPORTERS (916) 923-5447 9575 1 Quality Control Plan with you, Mr. Kier? 2 MR. KIER: Not with me. 3 MR. BIRMINGHAM: Mr. Kier, I am going to hand to you my 4 copy of the 1995 Water Quality Control Plan for the San 5 Francisco Bay, Sacramento-San Joaquin Delta Estuary, and I 6 am going to ask you to review Pages 28 to 29, in particular 7 the section dealing with the narrative objective for salmon 8 protection. 9 Please read that, and when you are finished reading 10 that, let me know. 11 MR. KIER: I have read the discussion about salmon. 12 MR. BIRMINGHAM: The narrative objective that you are 13 referring to on Page 1 of your testimony, Mr. Kier, is the 14 narrative objective for salmon protection; is that correct? 15 MR. KIER: That is correct. 16 MR. BIRMINGHAM: On Page 28, going onto 29, that is the 17 portion of 1995 Water Quality Control Plan that deals with 18 the narrative objective for salmon protection; is that 19 correct? 20 MR. KIER: That is correct. 21 MR. BIRMINGHAM: The first sentence of the narrative 22 objective for salmon protection or the discussion of the 23 narrative objective on Page 28 states: 24 It is uncertain whether implementation of the 25 numeric objectives in this plan alone will CAPITOL REPORTERS (916) 923-5447 9576 1 result in achieving the narrative objective 2 for salmon protection. (Reading.) 3 Did I read that accurately, Mr. Kier? 4 MR. KIER: Yes. You read it very well. 5 MR. BIRMINGHAM: It goes on to say: 6 Therefore, in addition to timely completion 7 of a water rights proceeding to implement 8 river flow and operational requirements which 9 will help protect salmon migration through 10 the Bay-Delta estuary, other measures may be 11 necessary to achieve the objective of 12 doubling the natural production of chinook 13 salmon from average 1967 to 1991 levels. 14 (Reading.) 15 Did I read that accurately, Mr. Kier? 16 MR. KIER: Yes. 17 MR. BIRMINGHAM: In light of what we've just read from 18 the 1995 Water Quality Control Plan on Pages 28 and 29, you 19 would agree with me, Mr. Kier, that your statement 20 concerning the assumptions made by the Board on Page 1 of 21 your testimony is wrong? 22 MR. KIER: Yes. I was a little harsh with the Board, I 23 have to admit. 24 MR. BIRMINGHAM: In fact, the Board hasn't made an 25 assumption that implementing the Vernalis standard by CAPITOL REPORTERS (916) 923-5447 9577 1 itself will achieve the narrative standard? 2 MS. KOEHLER: Objection. The statement that the 3 testimony has to do with the assumption in the Water Quality 4 Control Plan, I believe Mr. Kier already testified that he 5 also was referring to the Environmental Impact Report. 6 C.O. STUBCHAER: If you want to clarify the question, 7 Mr. Birmingham. 8 MR. BIRMINGHAM: Certainly. 9 Mr. Kier, as part of your work, have you ever been 10 involved in the preparation of a draft Environmental Impact 11 Report? 12 MR. KIER: I have. 13 MR. BIRMINGHAM: So you are familiar with the process 14 that is followed in developing an Environmental Impact 15 Report? 16 MR. KIER: Generally, yes. 17 MR. BIRMINGHAM: The process is that the staff of an 18 agency or consultants prepare a Environmental Impact Report 19 draft? 20 MR. KIER: Correct. 21 MR. BIRMINGHAM: Then that draft is submitted to the 22 agency for review by the agency's board? 23 MR. KIER: Sure. 24 MR. BIRMINGHAM: Until the agency's board has certified 25 the Environmental Impact Report, it really can't be CAPITOL REPORTERS (916) 923-5447 9578 1 characterized as a document approved by the agency? 2 MR. KIER: Okay. 3 MS. KOEHLER: Objection. Mr. Kier is not an attorney. 4 I am not sure how this goes to his expertise or his 5 testimony. 6 C.O. STUBCHAER: I think it is responsive to your 7 previous objection. And I think that he could ask if he 8 knows. Or I will say this for any of the witnesses: 9 If you don't know, you don't have to answer the 10 question. 11 MR. JACKSON: Mr. Chairman. 12 C.O. STUBCHAER: Mr. Jackson. 13 MR. JACKSON: Brings up a point. I would object to the 14 question on the grounds that it assumes that this EIR is not 15 evidence in this record. And I do believe that the EIR has 16 been presented as evidence by staff. Consequently, it is 17 different than it would be in a normal circumstance, even 18 though you have not certified the document. I think that is 19 one of the problems we have here. 20 MR. BIRMINGHAM: Mr. Jackson's observation that this is 21 a document that is in the record is correct. It is a staff 22 exhibit. This witness's testimony relates to the 23 assumptions of the Board. This is the Board. 24 Until the EIR is certified by the Board, it is not the 25 Board's document. And I think that we've established that CAPITOL REPORTERS (916) 923-5447 9579 1 and I'll move on. 2 C.O. STUBCHAER: I am going to permit the questioning 3 to proceed. That question can be answered if the witness 4 can answer it. 5 MR. BIRMINGHAM: Mr. Kier, it is your understanding, 6 isn't it, from your work in developing EIRs, that until a 7 final EIR is certified by a board of an agency that the 8 Board of the agency hasn't approved the document? 9 MR. KIER: It makes sense. 10 MR. BIRMINGHAM: And so, using your words, the 11 statement you've made about the Board's assumption on Page 1 12 of Save the Bay Exhibit 3 is a little harsh? 13 MR. KIER: I have already stipulated to that. 14 MR. BIRMINGHAM: Now, your testimony also refers to the 15 Vernalis Adaptive Management Plan? 16 MR. KIER: Correct. 17 MR. BIRMINGHAM: Have you reviewed the Vernalis 18 Adaptive Management Plan? 19 MR. KIER: Yeah. I think that is what I have reviewed. 20 I have a document that is a draft of it. 21 MR. BIRMINGHAM: Have you reviewed the San Joaquin 22 River Agreement which is in evidence, attached to San 23 Joaquin River Group Exhibit 2? 24 MR. KIER: You know, I am not -- I don't believe I 25 looked at the agreement. CAPITOL REPORTERS (916) 923-5447 9580 1 MS. KOEHLER: Mr. Birmingham, I have a copy of the San 2 Joaquin River Agreement. I am handing it to Mr. Kier to 3 refresh his memory as to whether he reviewed that document. 4 MR. BIRMINGHAM: Please take that moment, Mr. Kier, and 5 review that document which Ms. Koehler has just handed to 6 you and see if it refreshes your recollection as to whether 7 you've reviewed that agreement which is in evidence as part 8 of San Joaquin River Group Exhibit 2. 9 MR. KIER: Let me find the document that I reviewed. 10 I reviewed a document incorporated in the agreement -- 11 Mr. Birmingham, I reviewed a document called "Appendix 12 A, A Conceptual Framework for Protection and Experimental 13 Determination of Juvenile Chinook Salmon Survival Within the 14 Lower San Joaquin River in Response to River Flow and 15 SWP/CVP Exports," dated March 20, 1998. That is what I 16 reviewed. 17 MR. BIRMINGHAM: Mr. Kier, is it your understanding 18 that the proponents of the San Joaquin River Agreement and 19 Vernalis Adaptive Management Plan have asserted that 20 implementation of the agreement and the Vernalis Adaptive 21 Management Plan will, in and of itself, achieve the 22 narrative standards for salmon protection contained in the 23 1995 Water Quality Control Plan? 24 MS. KOEHLER: Objection. Mr. Kier's testimony contains 25 no references to what the proponents of the agreement do or CAPITOL REPORTERS (916) 923-5447 9581 1 do not assert. 2 C.O. STUBCHAER: Mr. O'Laughlin. 3 MR. O'LAUGHLIN: We're going to have a long day ahead 4 of us, and I know that counsel hasn't been here for Save the 5 Bay. But the rule has been from the beginning that the 6 scope of cross-examination is not limited to the direct. So 7 this is perfectly good, relevant testimony and inquire of 8 Mr. Kier in regards to what he does or doesn't know in 9 regards to the plan. So, if he doesn't know, he can answer 10 no, and we can move along. 11 C.O. STUBCHAER: Ms. Koehler. 12 MS. KOEHLER: My having been here notwithstanding, the 13 rules of how an evidentiary proceeding are what they are 14 and, in general, cross-examination is somewhat limited to 15 the direct. I am happy to -- it is not my intention to 16 prevent Mr. Kier from answering any questions that are 17 appropriate for him to answer. 18 This wasn't about the plan; this was about the intent 19 of the parties to the agreement. There is nothing even 20 remotely in his testimony going to what the parties to the 21 agreement are proposing with regard to the narrative 22 standards, so I think it is a very legitimate objection. 23 C.O. STUBCHAER: We have previously stated that -- we 24 have previously stated that the scope of cross-examination 25 in this proceeding is quite broad. It does not have to be CAPITOL REPORTERS (916) 923-5447 9582 1 limited to the scope of the direct, as opposed -- on 2 redirect it has to be limited to the scope of the redirect, 3 and on rebuttal it has to be limited to scope on rebuttal. 4 On the direct testimony we have been allowing broad 5 cross-examination as long as it is relevant. I think this 6 question is relevant. I think the way it is phrased it's 7 answerable, so please proceed. 8 MR. BIRMINGHAM: Do you recall the question, Mr. Kier? 9 MR. KIER: No. Would you repeat the question? 10 MR. BIRMINGHAM: Is it your understanding that the 11 proponents of the San Joaquin River Agreement and the 12 Vernalis Adaptive Management Plan assert that implementation 13 of the agreement and the plan in and of itself will achieve 14 the narrative standard for the protection of salmon 15 contained in the 1995 Water Quality Control Plan? 16 MR. KIER: No. 17 MS. KOEHLER: Mr. Stubchaer, I would just like my 18 objection noted for the record. 19 C.O. STUBCHAER: All objections are on the record. 20 MS. KOEHLER: I just wanted to -- could you advise me 21 as to the appropriate procedure. I don't want to interrupt 22 Mr. Birmingham. You have overruled my objection. I do want 23 to make a note in the record that we reserve the right to 24 raise this at some other time. 25 C.O. STUBCHAER: It is so noted. CAPITOL REPORTERS (916) 923-5447 9583 1 MR. BIRMINGHAM: Mr. Stubchaer, just so we don't have 2 this objection continuing, I believe, and I don't have 3 regulations of the Board here in front of me, but I believe 4 the Board's regulations concerning the conduct of 5 evidentiary hearings before the Board are very specific. 6 And those regulations allow cross-examination to go beyond 7 the scope of the direct examination, and the limit on the 8 scope of cross-examination is what is within the personal 9 knowledge of the witness and what is relevant to the 10 hearing. And the Board's regulations are very specific. 11 C.O. STUBCHAER: Ms. Koehler. 12 MS. KOEHLER: They may be very specific, but I don't 13 have them here. Therefore, I can't ascertain that for 14 myself right now. 15 All I am attempting to do is ensure in any future 16 proceeding that follows this one, if one does, that there is 17 absolutely no question about whether my organization and 18 anybody else, you know, has reserved the right to reopen 19 this issue at some future point. That is my only intention 20 in making this issue here. I just don't want it to be 21 argued later that this was resolved and that we waived any 22 future rights we might have. 23 MR. BIRMINGHAM: Excuse me. 24 C.O. STUBCHAER: I am going to ask Ms. Leidigh to 25 comment. But I also want to state that you have redirect CAPITOL REPORTERS (916) 923-5447 9584 1 and you have rebuttal, still to come. So your rights aren't 2 waived. 3 Ms. Leidigh, you care to comment? 4 MS. LEIDIGH: Yes. The rules that we follow in this 5 proceeding are based on the Administrative Procedure Act, 6 Government Code Section 11400 and following. These are not 7 the same as court rules. And, as a matter of fact, the 8 scope of cross-examination is not limited to the scope of 9 the direct examination, and it does include all relevant 10 information that the witness knows about, if the witness is 11 able to answer. It should be kept to what is relevant in 12 the current phase, but that is really the limit during the 13 cases in chief. 14 C.O. STUBCHAER: Thank you, Ms. Leidigh. 15 And your comments are in the record, Ms. Koehler, of 16 course. 17 Mr. Birmingham, please proceed. 18 MR. BIRMINGHAM: Mr. Kier, you've suggested in your 19 testimony that Alternative 5 is the better alternative from 20 the perspective of the fish? 21 MR. KIER: That's correct. 22 MR. BIRMINGHAM: Actually, this is a question I will 23 ask of both of you: Neither of you is advocating 24 Alternative 5 as the alternative that should be adopted by 25 the Water Board? CAPITOL REPORTERS (916) 923-5447 9585 1 MS. ANDREWS: My testimony is in regards to the stated 2 intention of the Vernalis flow objective and how that 3 intention relates to the implementation. But now I can 4 understand that the Board has a broader array of issues to 5 weigh in choosing the alternative. 6 MR. BIRMINGHAM: So your answer to my question is, yes, 7 you are not advocating the adoption of Alternative 5? 8 MS. ANDREWS: How many times do I have to restate my 9 testimony? It is just very awkward to have one's words 10 provided by someone else. 11 My testimony is that Alternative 5 of those considered 12 appears to be the best job of ecological enhancement. There 13 are other issues for the Board to consider. I understand 14 that. 15 MR. BIRMINGHAM: Let me just ask it as plain as I can: 16 Are you advocating the adoption of Alternative 5? 17 MS. ANDREWS: The question is unclear in terms of what 18 issues I personally should be weighing. The issues that I 19 might weigh might be different than the time issues that the 20 Board might weigh. 21 MR. BIRMINGHAM: I understand that. Let me restate the 22 question. Are you advocating the adoption of Alternative 5? 23 MS. KOEHLER: Objection. Asked and answered four times. 24 C.O. STUBCHAER: It's been asked. I am not sure if it 25 has been answered. CAPITOL REPORTERS (916) 923-5447 9586 1 MS. ANDREWS: Perhaps I may simply clarify. He is 2 asking whether I advocate the adoption of Alternative 5. I 3 do not -- I have not had an opportunity in the process of 4 preparing this nor am I expert in all the arenas that the 5 Board has to consider in looking at which alternative to 6 choose. I looked at all the alternatives in regard to a 7 very specific aspect of implementing the Water Quality 8 Control Plan. I looked no farther. I do not purport to 9 have considered all of the other aspects. 10 C.O. STUBCHAER: Fine, that is good. Thank you. 11 MR. BIRMINGHAM: Mr. Kier, asking the same question of 12 you: Are you advocating that the Board adopt Alternative 5 13 as the alternative for implementation of the 1995 Water 14 Quality Control Plan? 15 MR. KIER: That is not the principal purpose of my 16 testimony. The purpose of my testimony, Mr. Birmingham, is 17 to bring back to the Board's attention the existence of the 18 biological bottleneck in the Lower San Joaquin River near 19 Vernalis and the need for a level of flow to resolve that 20 problem before the Board can adequately address achieving 21 the narrative standard for the river. 22 So, my testimony is that Alternative 5 comes the 23 closest of the five alternatives to addressing that one 24 specific problem of temperature, stressful temperatures, 25 during the peak of the smolt out-migration period. CAPITOL REPORTERS (916) 923-5447 9587 1 MR. BIRMINGHAM: You just cut my examination of you 2 very short, Mr. Kier, thank you. 3 That takes me right to the point, the bottleneck you're 4 talking about is stated on Page 3 of Save the Bay Exhibit 3, 5 where you state: 6 In my opinion, the data clearly establishes 7 that flows at Vernalis must be maintained at 8 or above 5,000 cfs in order to keep water 9 temperatures below 68 degrees Fahrenheit. 10 (Reading.) 11 Is that correct? 12 MR. KIER: That is precisely what my testimony says. 13 MR. BIRMINGHAM: That is the bottleneck that you are 14 talking about; is that correct? 15 MR. KIER: That is correct. 16 MR. BIRMINGHAM: And it is a bottleneck that exists 17 during the period of smolt out-migration? 18 MR. KIER: That is correct. 19 MR. BIRMINGHAM: That is a period that can extend from 20 sometime in March through June? 21 MR. KIER: With the understanding that the temperatures 22 become most critical when the air becomes warm in April and 23 May and June. 24 MR. BIRMINGHAM: So the bottleneck that you are talking 25 about is in April, May and June when smolts are CAPITOL REPORTERS (916) 923-5447 9588 1 outmigrating? 2 MR. KIER: That is correct. 3 MR. BIRMINGHAM: Have you reviewed the 1995 Water 4 Quality Control Plan with respect to the flows that are 5 prescribed for Vernalis during the April, May and June 6 period? 7 MR. KIER: I reviewed the flows that are set out in the 8 EIR, and that is how I reached my conclusion that 9 Alternative 5 of the EIR came the closest to resolving the 10 bottleneck that I have described. 11 MR. BIRMINGHAM: I ask that you take a look at Page 19 12 of the 1995 Water Quality Control Plan. 13 MR. KIER: Okay. These are flows. 14 MR. BIRMINGHAM: In particular, Mr. Kier, I would ask 15 you to, in the middle of Page 19, look at the flows for the 16 San Joaquin River at Airport Way Bridge, Vernalis, on Page 17 19. 18 MR. KIER: Yes. 19 MR. BIRMINGHAM: Let's look at the flows that are 20 prescribed for different periods of the year and for 21 different water year types. Is it your understanding that 22 the designations in the third column from the right on Page 23 19, Table 3, designate water year types? 24 MR. KIER: Right. 25 MR. BIRMINGHAM: And let's look at the Vernalis flow CAPITOL REPORTERS (916) 923-5447 9589 1 during the April 15 through May 15 period for dry years. Is 2 it correct, Mr. Kier, that under the 1995 Water Quality 3 Control Plan for the April 15 through May 15 period in dry 4 years the prescribed flow is 4,020 for 4,880 cubic feet per 5 second? 6 MR. KIER: That is what it says here. 7 MR. BIRMINGHAM: For critical years, the prescribed 8 flow during the April 15 through May 15 period is 3,110 9 cubic feet per second or 3,540 cubic feet per second; is 10 that correct? 11 MR. KIER: That is what it says. 12 MR. BIRMINGHAM: Now let's look at the period from May 13 16 through June. In wet and above normal years the 14 prescribed flows for the San Joaquin River at Vernalis are 15 2,130 or 3,420 cubic feet per second; is that correct? 16 MR. KIER: That is what it says. 17 MR. BIRMINGHAM: For below normal and dry years the 18 prescribed flows for the May 16 through June period are 19 1,420 or 2,280 cubic feet per second; is that correct? 20 MR. KIER: I think you got a little confused there. 21 Why don't you take another cut at it? 22 MR. BIRMINGHAM: For below normal and dry years during 23 the M16 through June period, the prescribed flows are 1,420 24 or 2,280 cubic feet per second? 25 MR. KIER: Help me with this. Are you right in here? CAPITOL REPORTERS (916) 923-5447 9590 1 MR. BIRMINGHAM: Yes, I am, Mr. Kier. And those flows 2 are flows for the period from February 14 to -- excuse me. 3 Those flows are for the period February through April 14 and 4 then from May 16 through June; is that correct? 5 Let me ask you this question: I am going to ask you to 6 assume, Mr. Kier, that the flows in below normal and dry 7 years for the period from May 16 through June are 1,420 or 8 2,280 cubic feet per second. 9 MR. KIER: Pardon me. I think you are reading this 10 wrong. The 1,420 cubic feet per second to 2,280 cubic feet 11 per second is for below normal and dry years for the 12 February through April 14th period; isn't it? 13 MR. BIRMINGHAM: I am going to ask you to assume that 14 that also applies for the May 16 through June period, for 15 purposes of my question. 16 MR. KIER: What also applies? 17 MR. BIRMINGHAM: The flow of 1,420 or 2,280 for below 18 normal and dry years applies during the May 16 through June 19 period. I am just asking you to assume that, Mr. Kier. 20 MR. KIER: Okay. 21 MR. BIRMINGHAM: Can you make that assumption? 22 MR. KIER: Yeah, I can play this game. 23 MR. BIRMINGHAM: For critical years -- I am sorry. I'm 24 not sure I have gone through this now. For wet and above 25 normal years May 16 through June, it is 2,130 to 3,420 cubic CAPITOL REPORTERS (916) 923-5447 9591 1 feet per second. 2 Can you make that assumption? 3 MR. KIER: I am sorry, you've kind of lost me. 4 C.O. STUBCHAER: We take a moment, not off the record. 5 But we are exploring whether or not we can have 6 overheads made this quickly so we can put it on the screen 7 so everybody can see what is being referred to. 8 Do we have transparency material at the copier? 9 MS. WHITNEY: I don't know if there is transparencies 10 material back here. 11 C.O. STUBCHAER: Can you get it? 12 Time-out. 13 (Discussion held off the record.) 14 C.O. STUBCHAER: We are going to take a five-minute 15 break. This isn't the morning break. Stand in place, 16 whatever you like. 17 (Discussion held off the record.) 18 C.O. STUBCHAER: We are reconvened, coming back to 19 order, that is. 20 MR. BIRMINGHAM: Thank you. 21 Mr. Kier, we have placed on the overhead projector, or 22 the staff of the Board has been kind enough to place on the 23 overhead projector a copy from Table 3 of Page 19 of the 24 1995 Water Quality Control Plan. 25 I am going to ask that you follow me in my description CAPITOL REPORTERS (916) 923-5447 9592 1 of this, and I am going to ask you to make some assumptions. 2 Is that acceptable, Mr. Kier? 3 MR. KIER: Yeah. 4 MR. BIRMINGHAM: I am looking at a title in the 5 left-hand column on Table 3, Page 19. It says "river 6 flows"; is that correct? 7 MR. KIER: Sure enough. 8 MR. BIRMINGHAM: There is a description of the San 9 Joaquin River at Airport Way Bridge, Vernalis. Is that 10 correct? 11 MR. KIER: That is correct. 12 MR. BIRMINGHAM: Then there is an objective that is 13 described as flow rate; is that correct? 14 MR. KIER: That is correct. 15 MR. BIRMINGHAM: And then the description in units is 16 minimum monthly average flow rate in cubic feet per second; 17 is that right? 18 MR. KIER: That is correct. 19 MR. BIRMINGHAM: Now, there is a description of water 20 year types in the third column from the right; is that 21 correct? 22 MR. KIER: That is correct. 23 MR. BIRMINGHAM: Is it your understanding that wet or 24 "W" signifies wet, "AN" signifies above normal, "BN" 25 signifies below normal, "D" signifies dry, and "C" signifies CAPITOL REPORTERS (916) 923-5447 9593 1 critical water year types? 2 MR. KIER: Okay. 3 MR. BIRMINGHAM: Now, for the period from February 4 through April 14 and for the period May 16 through June, 5 there are flows that are prescribed for San Joaquin River at 6 Vernalis, and those flows are contained in the right-hand 7 column; is that right? 8 MR. KIER: That's correct. 9 MR. BIRMINGHAM: And let's examine the flows for above 10 normal years -- excuse me, wet and above normal years for 11 the period May 16 through June. Those flows are 2,130 or 12 3,240 cubic feet per second; is that correct? 13 MEMBER DEL PIERO: 3,000 -- 14 MR. BIRMINGHAM: 3,420 cubic feet per second; is that 15 correct? 16 MR. KIER: That is what the table says. 17 MR. BIRMINGHAM: And below that for below normal and 18 dry years is 4,120 -- I am sorry, 1,420 or 2,280 cubic feet 19 per second for the period May 16 through June; is that 20 correct, Mr. Kier? 21 MR. KIER: That is what it appears to be. 22 MR. BIRMINGHAM: For critical years, May 16 through 23 June, the prescribed flow rate at Vernalis is 710 or 1,140 24 cubic feet per second; is that correct? 25 MR. KIER: That is correct. CAPITOL REPORTERS (916) 923-5447 9594 1 MR. BIRMINGHAM: Let's examine the pulse flow period 2 for below normal, dry and critical years. Is it your 3 understanding, Mr. Kier, that the pulse flow is April 15 4 through May 15? 5 MR. KIER: Yes. 6 MR. BIRMINGHAM: And for dry years, the prescribed flow 7 during the April 15 through May 15 period is 4,020 or 4,880 8 cubic feet per second? 9 MR. KIER: That is correct. 10 MR. BIRMINGHAM: For critical years, during the pulse 11 flow period, April 15 through May 15, the prescribed flows 12 are 3,110 or 3,450 cubic feet per second? 13 C.O. STUBCHAER: 540. 14 MR. BIRMINGHAM: I have to decide which one I am going 15 to read. It is 3,540 cubic feet per second; is that 16 correct, Mr. Kier? 17 MR. KIER: Yeah. I am just -- these are different 18 numbers than I recall that the EIR said. 19 MR. BIRMINGHAM: We are right now looking at the 1995 20 Water Quality Control Plan, aren't we, Mr. Kier? 21 MR. KIER: That's correct. 22 MR. BIRMINGHAM: We are talking about implementing the 23 flows contained in the 1995 Water Quality Control Plan; 24 isn't that correct? 25 MR. KIER: Yes. I'm addressing the plan and the flow CAPITOL REPORTERS (916) 923-5447 9595 1 needs in my testimony. 2 MR. BIRMINGHAM: Now, Mr. Kier, the bottleneck that you 3 described is for the period when smolts are outmigrating? 4 MR. KIER: That is correct. 5 MR. BIRMINGHAM: Isn't it correct, Mr. Kier, what your 6 testimony really is saying is that the flows prescribed in 7 the 1995 Water Quality Control Plan that we have just gone 8 over in your testimony are, in your opinion, inadequate to 9 protect outmigrating smolts from stress caused by water 10 temperature? 11 MR. KIER: It is my testimony, yes. 12 MR. BIRMINGHAM: I have no further questions. 13 C.O. STUBCHAER: Thank you, Mr. Birmingham. 14 Mr. O'Laughlin. 15 MR. O'LAUGHLIN: Mr. Stubchaer, I made this motion the 16 other day. I'm going to renew it, based on the answer just 17 given by Mr. Kier. 18 My understanding of this hearing is that the hearing 19 notice was set out to implement the 1995 Water Quality 20 Control Plan. What Mr. Kier is testifying about is that the 21 1995 Water Quality Control Plan is inadequate. 22 Now, that testimony, if it was presented, should have 23 been presented in the 1995 hearing on the Water Quality 24 Control Plan and addressed there. We should not go back and 25 have testimony admitted like this on regards to whether or CAPITOL REPORTERS (916) 923-5447 9596 1 not the standards at Vernalis are proper. That will open up 2 a wide variety of inquiry as to the narrative standard, the 3 flow standards, temperature, whether or not the salinity 4 standard is correct. 5 To this period in time we have had no testimony that I 6 am aware of that has gone and sought to challenge the 7 standards that have been implemented under Porter-Cologne. 8 So, Mr. Kier's testimony is not about implementing the 9 standards. His statement in his testimony up until about 10 Page 3 and a half is specifically that the standards are 11 inadequate. I think that testimony should be stricken as 12 irrelevant and outside the hearing scope. 13 C.O. STUBCHAER: Ms. Koehler. 14 MS. KOEHLER: In response to what it was the other day, 15 Mr. O'Laughlin overlooked that the narrative standard is 16 part of the 1995 Water Quality Control Plan, and to 17 establish that I can recite from the Water Quality Control 18 Plan as well as Mr. Birmingham. If you will permit me, I 19 will very slowly read the standard, which provides as 20 follows: 21 Water quality condition shall be maintained, 22 together with other measures in the 23 watershed, sufficient to achieve a doubling 24 of the natural production of chinook salmon. 25 (Reading.) CAPITOL REPORTERS (916) 923-5447 9597 1 Et cetera, et cetera. This is a standard, it is in the 2 Water Quality Control Plan. This is a hearing to implement 3 the standards in the Water Quality Control Plan. 4 Mr. Kier's testimony is not about the efficacy of 5 the Vernalis standard. It is about whether meeting its 6 Vernalis standard will also meet the narrative standards. 7 His testimony is completely within the four corners of this 8 hearing. It is completely relevant. In fact, it is some of 9 the most relevant testimony we've had in this hearing since 10 very little of it has dealt with the narrative standard, 11 which, of course, is a standard in the Water Quality Control 12 Plan that must be implemented. 13 C.O. STUBCHAER: Mr. Nomellini. 14 MR. NOMELLINI: The criticism that we have put forth of 15 the San Joaquin River Agreement in part, which I think is in 16 this Phase II-A, was that it sought a modification of the 17 1995 Water Quality Control Plan in terms of the VAMP flow 18 requirements. And I think that the record is clear that it 19 would produce lesser flow than what the 1995 Water Quality 20 Control Plan was. And I have so filed a motion with you to 21 do the triennial review to focus in, in part, on the San 22 Joaquin River Vernalis flow requirements. 23 Now, I think the testimony is relevant to whether or 24 not the San Joaquin River Agreement meets the claim of the 25 proponents that it will meet the fish doubling CAPITOL REPORTERS (916) 923-5447 9598 1 requirement. I think this testimony that even the Water 2 Quality Control Plan numbers, and we have to recognize that 3 the narrative doesn't have numbers, that the numbers 4 themselves in the plan will not fulfill the requirements. 5 So, I see this testimony as very relevant and should 6 not be stricken, and, therefore, I oppose the motion by Mr. 7 O'Laughlin that it be stricken. 8 C.O. STUBCHAER: Mr. Jackson. 9 MR. JACKSON: I would like to join with what Mr. 10 Nomellini said. The narrative standard, whether we like it 11 or not, will be dealt with in the triennial review, which is 12 overdue right now. And but -- until then, in the course of 13 this hearing, we need to deal with it and not just sweep it 14 under the rug. 15 This data is relevant. These numbers have never been 16 enough in and of themselves. Nobody ever assumed they would 17 be, and that is clear from the hearing notice. 18 C.O. STUBCHAER: Mr. O'Laughlin. 19 MR. O'LAUGHLIN: I would like to address that, then. I 20 am somewhat perplexed about the scope of the hearing, then. 21 Because if we are to go back then and try to reestablish the 22 standards, or what the standards will be, for the Bay-Delta, 23 then the implementation part of this process will stop. 24 Then we have to go back, or are we going to open up the 1995 25 Water Quality Control Plan again and have testimony about CAPITOL REPORTERS (916) 923-5447 9599 1 whether or not these flows are adequate? 2 I mean, the essence of the testimony -- the bear 3 essence of the testimony is that these flows in and of 4 themselves are inadequate to meet the narrative standard, 5 and, therefore, the flows should be increased. 6 We have gone past that hurdle. Because if we are going 7 to change now, then my comment would be is that the State 8 Water Resources Control Board Draft EIR has not addressed 9 that open-ended, wide range of unfeathered analysis of the 10 amount of flows necessary to meet the, quote-unquote, 11 narrative standard. If that is the case, then these numbers 12 are meaningless. 13 C.O. STUBCHAER: Mr. Jackson. 14 MR. JACKSON: I would like to agree with Mr. O'Laughlin 15 that the environmental document is clearly inadequate. 16 MR. O'LAUGHLIN: I didn't say that. 17 MR. JACKSON: The narrative standard is part of the 18 Water Quality Control Plan. The document, as I have 19 repeated at every stage that we have talked about this 20 document, is a CEQA violation in that it does not consider 21 the narrative standard. 22 C.O. STUBCHAER: Mr. O'Laughlin, I have a question for 23 Mr. Kier. 24 Mr. Kier, on Page 3 of your testimony, the last 25 sentence of the first full paragraph, where you say: CAPITOL REPORTERS (916) 923-5447 9600 1 In my opinion the data thoroughly establishes 2 that flows at Vernalis must be maintained at 3 or above 5,000 cfs in order to keep water 4 temperatures below the 68 degrees Fahrenheit. 5 (Reading.) 6 What time period does that sentence refer to? 7 MR. KIER: It concerns the month of May, for the most 8 part. But as the Department of Fish and Game has testified, 9 the downstream migration period extends through June. And 10 so, I am saying that a flow regime, Mr. Chairman, that 11 targets on only the mid-April to mid-May period is 12 inadequate to ensure that juvenile salmon production in the 13 basin can be moved safely out of the San Joaquin River and 14 safely into the Bay-Delta system. 15 That is the thrust of my testimony. 16 C.O. STUBCHAER: I could see that reading this sentence 17 by itself, stand alone, it could be considered year-round. 18 If you relate it to the 5,000 cubic feet per second in the 19 preceding sentence, which talks about the month of May, it 20 puts a limit on it. That is why I asked the question. It 21 then -- 22 Please go ahead. 23 MR. KIER: I was simply trying to capture the essence 24 of the testimony presented by the Department of Fish and 25 Game in 1987, in which they point out that the month of May CAPITOL REPORTERS (916) 923-5447 9601 1 is critical to out, downstream migration of juvenile salmon, 2 and that it was during the month of May that the Department 3 of Fish and Game found water temperatures frequently 4 exceeding the 68 degrees stress level. 5 C.O. STUBCHAER: I would like somehow to have Footnote 6 18 read and -- 7 MS. WHITNEY: It is right here. 8 C.O. STUBCHAER: I know this is already in the record, 9 but I would like to get this in the record. I guess I can 10 ask you to read it, Mr. Kier, Footnote 18. 11 MR. KIER: Footnote 18: 12 This time period may be varied, based upon 13 real-time monitoring. One pulse or two 14 separate pulses of combined duration equal to 15 the single pulse should be scheduled to 16 coincide with fish migration in San Joaquin 17 River tributaries and the Delta. The time 18 period for this 31-day flow requirement will 19 be determined by the operations group 20 established under the framework agreement. 21 (Reading.) 22 C.O. STUBCHAER: Does this indicate to you, then, that 23 the pulse flow that we looked at in the previous overhead is 24 not limited strictly to the April 15 to May 15 time period? 25 MR. KIER: Certainly, that's the thrust of Footnote 18. CAPITOL REPORTERS (916) 923-5447 9602 1 I guess, as I considered it, talking -- we are talking about 2 allocating water here, and it's not clear to me that the 3 amount of water that might be available to address 4 outmigration of juvenile salmon in the river could be 5 expanded substantially to accomplish that purpose; that is, 6 that Footnote 18 really suggests experimenting within a set 7 amount of water with pulses that could occur earlier than 8 April 15 to later than May 15. 9 C.O. STUBCHAER: It just occurs to the Chair that there 10 is not as big a difference between parties here as is being 11 discussed. I shouldn't reach conclusions, I know, and I 12 haven't reached conclusions but I am just observing that the 13 amount of water in most year types, during the pulse flow 14 period, address the time of the year that you are addressing 15 is adequate to meet your recommendation. 16 Ms. Koehler. 17 MS. KOEHLER: I am just wondering, Mr. Chairman, if you 18 are going to be ruling on Mr. O'Laughlin's motion? I would 19 like a brief moment to speak before you do. 20 C.O. STUBCHAER: I am going to be ruling on the motion, 21 but I'm laying a foundation for my ruling, trying to 22 anyhow. 23 Ms. Forster. 24 MEMBER FORSTER: I am going to talk to the record. 25 I think the hearing notice does state the narrative CAPITOL REPORTERS (916) 923-5447 9603 1 standard, and I do think it's appropriate to bring in 2 evidence to help lay some issues on how we come to the 3 narrative standard. And so I don't think we should strike 4 it. 5 C.O. STUBCHAER: I didn't hear any motion to strike, 6 anyway. 7 MEMBER FORSTER: Didn't you ask to remove it? 8 MR. O'LAUGHLIN: Oh, yeah. I moved to strike his 9 testimony. 10 C.O. STUBCHAER: My ruling was going to be that, for 11 the reasons I have stated, the testimony can remain in the 12 record. I don't view it as challenging the Water Quality 13 Control Plan. I view it as part of the implementation. I 14 can relate it to the San Joaquin River Agreement. 15 MS. KOEHLER: Thank you, Mr. Chairman. 16 C.O. STUBCHAER: You're welcome. 17 Now, Mr. O'Laughlin, are you ready to proceed with your 18 cross-examination? 19 MR. O'LAUGHLIN: Yes. 20 There are two procedural issues I would like to bring 21 up at this time before we go much further. I realize at 22 1:00 we have several legislators coming in to speak, we 23 won't get some time to address procedural issues this 24 afternoon. And rather than start my cross-examination right 25 away, I would like to take those up. CAPITOL REPORTERS (916) 923-5447 9604 1 One is a motion has been filed by Central Delta Water 2 Agency in regards to these proceedings. Is the Board's 3 intention to develop a hearing schedule in regards to that 4 motion? 5 MEMBER DEL PIERO: I just got it five minutes ago. 6 C.O. STUBCHAER: I have not read it. 7 MR. O'LAUGHLIN: The next one is -- 8 MEMBER DEL PIERO: Have you seen it? 9 C.O. BROWN: I haven't received it. 10 MEMBER DEL PIERO: I am through with the first two 11 pages and the cover sheet. Question is premature. 12 MR. O'LAUGHLIN: The next one is that a motion for 13 reconsideration was filed by -- I don't want to leave any 14 party out, but I will say just Central Delta, South Delta. 15 MR. NOMELLINI: We filed that. 16 MR. O'LAUGHLIN: Is the Board going to set a briefing 17 schedule for that? 18 C.O. STUBCHAER: Ms. Leidigh. 19 MS. LEIDIGH: Normally, the Board does not set 20 briefing schedules on motions for or petitions for 21 reconsideration, and we have been following our normal 22 process. We are preparing an order responding to that. If 23 the parties want to have input in the Board's order, then 24 they should file briefs at their earliest convenience. 25 MR. O'LAUGHLIN: Thank you. CAPITOL REPORTERS (916) 923-5447 9605 1 MS. LEIDIGH: With respect to the other motion, I might 2 just comment that our process in the past in this hearing 3 has been to give the parties 15 days after receiving a 4 written motion to file any responses they want, before the 5 Board responds to the motion, and the response is normally 6 in writing. 7 MR. O'LAUGHLIN: That is my understanding. 8 ---oOo--- 9 CROSS-EXAMINATION OF SAVE THE SAN FRANCISCO BAY ASSOCIATION 10 BY SAN JOAQUIN RIVER GROUP AUTHORITY 11 BY MR. O'LAUGHLIN 12 MR. O'LAUGHLIN: Ms. Andrews, I am Timothy O'Laughlin. 13 I represent the San Joaquin River Group Authority and its 14 member agencies. I would like to start out: 15 Are you a member of Save the Bay? 16 MS. ANDREWS: No, I am not. 17 MR. O'LAUGHLIN: Were you hired by Save the Bay to 18 prepare your testimony? 19 MS. ANDREWS: Let's see. I was asked by Save the Bay 20 to prepare the testimony. I believe we do have a contract 21 at this point. I've not received payment for it. 22 MR. O'LAUGHLIN: In regards to the preparation of your 23 testimony, how many hours do you think you spent in 24 preparing your testimony? 25 MS. KOEHLER: Objection. Relevance. CAPITOL REPORTERS (916) 923-5447 9606 1 MR. O'LAUGHLIN: Mr. Chairman, we are going to be going 2 through this all day. My scope of cross-examination is 3 going to way far and wide, and it is relevant. I think the 4 question of how much time Ms. Andrews spent preparing is 5 clearly relevant to the question of her inquiry into the 6 breadth and depth of the issues that are before the Board. 7 C.O. STUBCHAER: Objection is overruled. 8 MS. ANDREWS: I believe the preparation of the 9 testimony was on the order of 30 hours. 10 MR. O'LAUGHLIN: Did that include the time spent 11 reviewing the Draft EIR for the State Water Resources 12 Control Board process? 13 MS. ANDREWS: It did, although I did have some exposure 14 to the document previous. 15 MR. O'LAUGHLIN: What other documents did you review in 16 preparation for your testimony as set forth in Exhibit 17 Number 2? 18 MS. ANDREWS: I looked also at the documents that were 19 referenced in my exhibit. Should I read each of those to 20 you? 21 MR. O'LAUGHLIN: If you would like, yes. 22 MS. ANDREWS: I certainly looked at From the Sierra to 23 the Sea, which is referenced. I also looked at a paper 24 entitled "A Method for Assessing Hydrologic Alteration 25 Within Ecosystems." CAPITOL REPORTERS (916) 923-5447 9607 1 And I looked at a document entitled "Analysis of 2 Physical Processes and Riparian habitat potential on the San 3 Joaquin River --" excuse me, "Riparian habitat potential of 4 the San Joaquin River, Friant Dam to the Merced River." 5 I believe that was -- and I looked at some other 6 documents that had been submitted to this hearing. The only 7 one that was referenced here and the only one that comes to 8 mind immediately was -- excuse me, there is a typo here; 9 should be EDF Exhibit 15, which was submitted by Spreck 10 Rosecrans or prepared by Sprec Rosecrans, "Alternative 11 Criteria to Provide Target Flows for the Vernalis Adaptive 12 Management Plan Experiment." 13 I also had an opportunity to read and review the San 14 Joaquin River Agreement, including Appendices A and B. 15 MR. O'LAUGHLIN: Based on your Curriculum Vitae, you 16 are not a fishery biologist; is that correct? 17 MS. ANDREWS: That's correct. 18 MR. O'LAUGHLIN: Are you an economist? 19 MS. ANDREWS: No, I am not, nor have I ever purported 20 to be. 21 MR. O'LAUGHLIN: Would you say that your expertise, 22 based on your background, is in modeling of river systems? 23 MS. ANDREWS: That is one of my areas of expertise. 24 MR. O'LAUGHLIN: What modeling have you done on river 25 systems and what models have you used? CAPITOL REPORTERS (916) 923-5447 9608 1 MS. ANDREWS: Far afield. I have used the usual state 2 of engineering programs such as HEC-1, HEC-2, HECRAS. I 3 have overseen the work of others using such models as 4 MIKE-11. We use also a variety of approaches to modeling 5 river systems which have been computerized. I have also 6 overseen some HEC-6 work, a variety of different modeling 7 techniques. And I have used as well PROSIM, which is 8 Reclamation's model. I have an opportunity to work a little 9 bit with DWRSIM, limited extent there. And while I was at 10 Department of Water Resources, I worked with a program at 11 that point called KERNSIM or Network Flow. 12 MR. O'LAUGHLIN: What modeling work have you done with 13 DWRSIM? 14 MS. ANDREWS: As I said, my modeling work there has 15 been quite limited. We used it for an analysis of 16 maintaining water on rice fields in the Sacramento Valley. 17 MR. O'LAUGHLIN: In regards to PROSIM, what have you 18 used the PROSIM model for? 19 MS. ANDREWS: I had an opportunity to work with 20 Reclamation, Fish and Wildlife Service. The modeling 21 operations of the Central Valley Project for purpose of 22 establishing a base condition and operation of the system 23 under expected future conditions. 24 MR. O'LAUGHLIN: Is that set forth in your selected 25 project experience in your Curriculum Vitae where you CAPITOL REPORTERS (916) 923-5447 9609 1 mention the Central Valley Project Improvement Act planning 2 and accounting? 3 MS. ANDREWS: Yes. That describes it at one point in 4 the process. I am not quite sure what the date on the 5 resume is. I am not sure how complete the description is. 6 MR. O'LAUGHLIN: It says: 7 Provide technical assistance and modeling 8 support to both the technical and policy 9 arenas with respect to long-term 10 implementation of this legislation to 11 redirect additional water to the benefit of 12 fish and wildlife. (Reading.) 13 MS. ANDREWS: That is a general enough description to 14 apply for most of the work. 15 C.O. STUBCHAER: Mr. O'Laughlin, are you going to go 16 through all the modeling in her CV on this, because I don't 17 see the relevance of that? 18 MEMBER DEL PIERO: Neither do I, Mr. Hearing Officer. 19 MR. O'LAUGHLIN: I am going to go through specific 20 modeling that she has done and specific work that she has 21 done to establish the foundation for her recommendations in 22 regards to the San Joaquin River. 23 MS. KOEHLER: Mr. Chairman, she hasn't based a single 24 statement in this document based on modeling. We haven't 25 submitted any modeling that she's done as far as this CAPITOL REPORTERS (916) 923-5447 9610 1 testimony. 2 MR. O'LAUGHLIN: If we will all stipulate to that fact, 3 then I will move on. 4 MEMBER DEL PIERO: No, no, no. You have to explain 5 and justify your course of questioning in terms of this 6 issue. I have been sitting here very patiently trying to 7 figure out where you are going with this. So, if you can 8 explain to me what the relevance is -- Mr. Chairman, I 9 apologize. 10 I am very interested in finding out what it is that is 11 in her Curriculum Vitae that has some bearing on the issue, 12 beyond whether or not you are questioning whether or not she 13 is an expert. 14 MR. O'LAUGHLIN: I am not questioning whether or not 15 she is an expert. I am questioning the underlying basis 16 that she brings with her experience and background for the 17 opinions that she has rendered in regards to the San Joaquin 18 River Basin. 19 And I think it is very appropriate to identify what she 20 has and hasn't done in the past, based on her work 21 experience, that she brings to the table in regards to the 22 expertise in regards to making statements about the 23 geomorphologic process in the San Joaquin River Basin. This 24 isn't going to last much longer; I only have a few questions. 25 C.O. STUBCHAER: Please limit the questions to relevant CAPITOL REPORTERS (916) 923-5447 9611 1 aspects of the witness' qualifications and testimony. 2 MR. O'LAUGHLIN: Have you done any -- in your 3 Curriculum Vitae, have you done any specific work on the 4 Merced River as a tributary to the San Joaquin River? 5 MS. ANDREWS: No, I have not. 6 MR. O'LAUGHLIN: Have you done any work on the Tuolumne 7 River in regards to its -- whether hydraulic or 8 geomorphologic in the San Joaquin River Basin? 9 MS. ANDREWS: No, I have not. 10 MR. O'LAUGHLIN: Have you done any work in the 11 Stanislaus River Basin in the regards to the geomorphologic 12 processes? 13 MS. ANDREWS: No, I have not. 14 MR. O'LAUGHLIN: Would that be the same for the Upper 15 San Joaquin River Basin? 16 MS. ANDREWS: Yes, that would be correct. 17 MR. O'LAUGHLIN: Can you please describe for me the 18 largest project that you have done on a river system that 19 would call for the natural replication of a natural 20 hydrograph for the reestablishment of geomorphologic 21 processes for that system? 22 MS. ANDREWS: I don't know to what extent the Board and 23 members of the audience are familiar with the field of 24 fluvial geomorphology. It is a field that has been fairly 25 academic until probably the last ten years ago or so. And CAPITOL REPORTERS (916) 923-5447 9612 1 what has happened in the last ten years is that there has 2 been a point where those who are experienced in that field 3 have begun to actually apply the knowledge that they have 4 obtained in the academic arena to real systems. 5 And so the extent of collective expertise, not just my 6 own, in terms of establishing flow regimes that are 7 appropriate to maintain channel systems and create both the 8 hydraulic and geomorphologic processes that are attended are 9 very young. It is an infant science. 10 The largest project that I have been involved in that 11 looked at the relationship of flows, geomorphology and 12 ecosystems was one that we did a couple of years ago on the 13 Cosumnes River Basin for the Nature Conservancy, in which we 14 looked at approximately 35 miles of river channels with a 15 focused looked at about 17 and half miles of river channel, 16 and looked at the nature of the flooding regime that might 17 be appropriate to meet the dual goals of a flood plan 18 ecosystem restoration together with the flood management on 19 that river system. 20 MEMBER DEL PIERO: Mr. Chairman. 21 C.O. STUBCHAER: Mr. Del Piero. 22 MEMBER DEL PIERO: The Board Members might recall we 23 made a major grant, a grant based on that study, the 24 acquisition of those areas around the Cosumnes River. I am 25 sorry -- a loan for the acquisition of those riparian CAPITOL REPORTERS (916) 923-5447 9613 1 systems based on that study. 2 MR. O'LAUGHLIN: Have you done a field reconnaissance 3 survey of the San Joaquin River and its tributaries in 4 regards to making your recommendations in your testimony 5 today? 6 MS. ANDREWS: I have made one site visit along an 7 extended portion of the San Joaquin. It was not 8 specifically for this testimony. 9 Would it perhaps speed things up if I told you what I 10 did to prepare my testimony? Or would you prefer to keep 11 asking questions that I could answer no to? 12 MR. O'LAUGHLIN: Unfortunately, the process is that I 13 get to ask the questions and you get to respond to the 14 questions. 15 On Page 3 of your testimony, earlier in your testimony 16 you identified that the second item, "The systemwide role of 17 hydrologic processes in shaping channel, in performing 18 ecosystems functions such as food support," is more 19 pertinent question that we should be looking at in this 20 hearing phase; is that correct? 21 MS. ANDREWS: That's correct. 22 MR. O'LAUGHLIN: On Page 4 of your testimony, first, it 23 is an incomplete paragraph up at the top, what hydrologic 24 data have you reviewed about the impoundment and diversions 25 of the stream flows on the San Joaquin River? CAPITOL REPORTERS (916) 923-5447 9614 1 MS. ANDREWS: I have a graphic with me today that shows 2 the relationship of impoundment on the San Joaquin over 3 time, which I would be happy to share with the audience, if 4 you would like. 5 MR. O'LAUGHLIN: That is fine, yes, if you could point 6 that up. 7 MS. ANDREWS: Unfortunately, I did not make overheads. 8 MS. WHITNEY: Do you want one? 9 MS. ANDREWS: I understand you have seen something very 10 similar by Dr. Orlob. 11 C.O. STUBCHAER: I think it is already in the record 12 with an overhead. 13 MS. ANDREWS: If someone knows what number it is. That 14 I do not know. 15 MS. WHITNEY: This one is different. 16 MS. ANDREWS: It is one we prepared at our office. I 17 am sure it differs somewhat from Dr. Orlob's. The data is 18 not the same. 19 C.O. STUBCHAER: While the copy is being made, why 20 don't we take our morning break now, 12 minutes. 21 (Break taken.) 22 C.O. STUBCHAER: Let's come back to order, please. 23 Ready, Mr. O'Laughlin? 24 MR. O'LAUGHLIN: Yes. I am going to switch gears here 25 a second. Hopefully, my expectation is Ms. Andrews is going CAPITOL REPORTERS (916) 923-5447 9615 1 to take a little bit longer, so I am going to try to get Mr. 2 Kier done today. 3 MS. KOEHLER: Do you want to finish with this? 4 MR. O'LAUGHLIN: No. We will get back to it. I have 5 it noted. Thank you. We will get back to that testimony. 6 On the first page, Mr. Brimingham spent some time with 7 you, Mr. Kier, on Item Number 1, under Page 1. 8 Do you have an opinion as to whether or not flow alone 9 can double chinook salmon fish populations? 10 MR. KIER: I don't have an opinion on that. 11 MR. O'LAUGHLIN: You say under Item Number 2: 12 Alt 5 is the most likely to make the 13 improvement in environmental conditions. 14 (Reading.) 15 Can you cite to what evidence you are looking at in 16 support of that opinion, Mr. Kier? 17 MR. KIER: Sure. My testimony, again, is narrowly 18 directed to the temperature problem that exists in the lower 19 river at Vernalis during most years. And I was looking at 20 the alternatives from the standpoint of whether they 21 provided enough flow to resolve that temperature problem 22 during the outmigration, smolt outmigration period. 23 MR. O'LAUGHLIN: But what evidence do you have that in 24 regards to Alternative 5 that the temperature conditions are 25 going to be met under your proposal more often than not in CAPITOL REPORTERS (916) 923-5447 9616 1 the May time period? 2 MR. KIER: It's a -- are you with me? 3 MR. O'LAUGHLIN: Go ahead. Don't worry. 4 C.O. STUBCHAER: We are the ones who count, Mr. Kier. 5 MEMBER DEL PIERO: I was waiting for that. 6 MR. KIER: Again, the Department of Fish and Game 7 testimony that was provided in an earlier Bay-Delta hearing 8 made it clear that when flows at Vernalis are less than 9 5,000 cubic feet per second, during May and in some years 10 even in April, second half of April, that temperatures rise 11 to temperature levels that stress young salmon. 12 And so I was looking at Alternative 5 -- that is, I 13 determined that Alternative 5 came the closest to resolving 14 that temperature problem. 15 MR. O'LAUGHLIN: In preparation for your testimony, did 16 you review State Water Resources Control Board staff Exhibit 17 7B, the Water Quality Control Plan for Salinity 91-15 WR, 18 May 1991? 19 MR. KIER: Frankly, I don't recall. I've got boxes 20 full of Water Resources Control Board documents, but I don't 21 recall reviewing that specific document in the preparation 22 of this testimony. 23 MR. O'LAUGHLIN: I would like to refer you to, in that 24 document on Page 1-13, it states: 25 Controllable water quality factors are those CAPITOL REPORTERS (916) 923-5447 9617 1 actions, conditions or circumstances 2 resulting from human activities that may 3 influence the quality of the water of the 4 state that are subject to the authority of 5 the State Board or the Regional Board and 6 that may be reasonably controlled. Based on 7 the record in these proceedings, controlling 8 temperature in the Delta, utilizing reservoir 9 releases, does not appear to be reasonable 10 due to the distance of the Delta downstream 11 of the reservoirs and uncontrollable factors 12 such as ambient air temperature, water 13 temperatures in the reservoir releases, et 14 cetera. For these reasons the State Board 15 considers reservoir releases to control water 16 temperature in the Delta a waste of water. 17 (Reading.) 18 Are you aware of that decision, Mr. Kier, prior to 19 considering your testimony here today? 20 MR. KIER: No. And I don't think it would have changed 21 my testimony had I been aware of it. 22 MR. O'LAUGHLIN: So, then your opinion would be it is 23 not a waste of water to try to send water down the 24 tributaries in the main stem of the San Joaquin River to 25 control temperature at Vernalis in the May time period? CAPITOL REPORTERS (916) 923-5447 9618 1 MR. KIER: Mine is a biological testimony, not a legal 2 testimony. 3 MR. O'LAUGHLIN: Can you describe that for me other 4 than in looking at the California Department of Fish and 5 Game? I think it was Exhibit 15 which was attached to Save 6 the Bay testimony. What other evidence did you rely on for 7 the fact that under Alternative 5 salmon smolt outmigrating 8 would be better than any other alternative? 9 MR. KIER: The other documents that I looked at 10 included the Bureau of Reclamation, Fish and Wildlife 11 Service's Anadromous Fish Restoration Program Working Paper, 12 Volume Number III, which addresses flow requirements for 13 doubling salmon in various Central Valley streams. 14 MR. O'LAUGHLIN: Anything else, Mr. Kier? 15 MR. KIER: Yes. I looked at a number, that is, to 16 arrive at that specific conclusion. 17 MR. O'LAUGHLIN: In regards to Item Number 2, you said, 18 "The greatest improvement to environmental conditions." 19 What baseline are you using to base your quantitative 20 differential in coming up with greatest improvement? 21 MR. KIER: I was really referring to salmon, salmon 22 doubling there. 23 MR. O'LAUGHLIN: What baseline are you using to say 24 that there would be a greatest improvement for salmon 25 doubling in Alt 5 as opposed to what baseline? CAPITOL REPORTERS (916) 923-5447 9619 1 MR. KIER: Again, my testimony concerned the biological 2 bottleneck that the Department of Fish and Game has brought 3 to the Board's attention. And Alternative 5 appeared to be 4 that alternative which came the closest to addressing that 5 temperature problem. 6 MR. O'LAUGHLIN: Do you have an opinion as to the 7 impacts of the CVP and SWP exports from the Delta on salmon 8 smolt survival as they move through the Delta? 9 MR. KIER: Nothing specific that I can offer at this 10 time. 11 MR. O'LAUGHLIN: Do you have -- have you reviewed the 12 State Water Resources Control Board EIR/EIS in preparation 13 for your testimony? 14 MS. KOEHLER: Objection. Vague. Which EIR/EIS? 15 MR.O'LAUGHLIN: State Water Resources Control Board 16 Draft EIR. 17 MR. KIER: The staff draft? 18 MR. O'LAUGHLIN: Yes. 19 MR. KIER: Sure did. 20 MR. O'LAUGHLIN: Did you rely on any of the information 21 contained within the State Water Resources Control Board 22 Draft EIR for your opinion that Alt 5 is likely to make the 23 greatest improvement in environmental conditions? 24 MR. KIER: Pretty sure I did. That is that there are 25 flow schedules in the EIR. CAPITOL REPORTERS (916) 923-5447 9620 1 MR. O'LAUGHLIN: Other than flow schedules, is there 2 anything else that you relied in the State Water Resources 3 Control Board Draft EIR/EIS for your opinion? 4 MR. KIER: No. I was looking specifically for that 5 alternative which would provide enough flow to resolve that 6 temperature problem. 7 MR. O'LAUGHLIN: I will represent to you, Mr. Kier, 8 that this is Figure 6-21 from the State Water Resources 9 Control Board Draft EIR. The first graph is San Joaquin 10 River Fall-Run Chinook Salmon Smolt Survival Index with the 11 Head of Old River Barrier in. 12 Can you explain to me what is the difference in your 13 mind between Alternative Number 5 and Alternative Number 8 14 if there is a .01 differentiation in salmon smolt survival 15 index? 16 MR. KIER: No, I can't. 17 MR. O'LAUGHLIN: Do you have any comments to make on 18 the State Water Resources Control Board salmon smolt 19 survival index for the modeling that was done there, too? 20 MR. KIER: No. 21 MR. O'LAUGHLIN: Do you disagree with this chart? 22 MR. KIER: I don't know whether I agree with it or 23 disagree with it. I haven't studied it. I take it this is 24 an Old River Barrier discussion. 25 MR. O'LAUGHLIN: Can you describe for me under CAPITOL REPORTERS (916) 923-5447 9621 1 Paragraph Number 2, either quantitatively or qualitatively, 2 what is the difference between Alternative Number 5 and 3 Alternative Number 8 in improving salmon smolt survivals 4 through the San Joaquin River Bay-Delta? 5 MR. KIER: Not without revisiting the text. 6 MR. O'LAUGHLIN: Mr. Kier, have you reviewed the San 7 Joaquin River Agreement and the Vernalis Adaptive Management 8 Plan in preparation for your testimony here today? 9 MR. KIER: I think I testified earlier today that I 10 reviewed Appendix A, which I take it is part of the 11 agreement. 12 MR. O'LAUGHLIN: You say in here on Item Number 2: 13 The VAMP alternative is the least likely to 14 achieve doubling as a stand-alone experiment. 15 (Reading.) 16 Did you compare the VAMP alternative to Alternative 17 Number 2, Mr. Kier? 18 MR. KIER: I don't recall, specifically, that 19 comparison. 20 MR. O'LAUGHLIN: Can you tell me whether or not, when 21 you made this statement, whether you were comparing the 22 VAMP alternative to Alternative Number 5 or to all the 23 alternatives contained in the State Water Resources Control 24 Board Draft EIR? 25 MR. KIER: I believe the latter. CAPITOL REPORTERS (916) 923-5447 9622 1 MR. O'LAUGHLIN: So that would include you compared it 2 to Alt 4? 3 MR. KIER: Yes. As I recall, the VAMP agreement 4 provided a low-flow situation. 5 MR. O'LAUGHLIN: What alternative -- what is your 6 understanding of Alternative Number 4, Mr. Kier? 7 MR. KIER: I'm sorry, I'm going to have to go back and 8 look at the alternatives again. 9 MR. KIER: Could you restate the question? 10 MR. O'LAUGHLIN: Can you give me what your 11 understanding is of Alternative Number 4? 12 MR. KIER: I can read it to you. 13 MR.O'LAUGHLIN: Is the definition of Alternative Number 14 4 contained within the State Water Resources Control Board 15 Draft EIR, the definition that you relied on. Mr. Kier? 16 MR. KIER: Again, I reviewed the EIR. 17 MR. O'LAUGHLIN: In regards to that, did you do any 18 comparison between Alternative Number 4 and Alternative 19 Number 8 in regards to impacts on salmon smolt survivals 20 through the San Joaquin River Bay-Delta? 21 MR. KIER: Again, I was looking specifically at this 22 temperature problem at Vernalis. 23 MR. O'LAUGHLIN: What is your other -- do you have any 24 understanding of what other actions are associated with the 25 San Joaquin River Agreement and the Vernalis Adaptive CAPITOL REPORTERS (916) 923-5447 9623 1 Management Plan other than flow related? 2 MR. KIER: Again, I didn't review the agreement in its 3 entirety. I reviewed attachment A, the VAMP experiment. 4 MR. O'LAUGHLIN: Do you have any opinion as you sit 5 here today as to whether or not the installation of an 6 operable Head of Old River Barrier would be beneficial to 7 salmon smolt survival in the San Joaquin Bay-Delta? 8 MR. KIER: It is my general impression that its purpose 9 in part is to facilitate salmon, successful salmon migration 10 through that part of the Delta. My testimony, again, was 11 looking at another problem. 12 MR. O'LAUGHLIN: You compared and have stated that 13 Alternative 5 is superior to the VAMP alternative; is that 14 correct? 15 MR. KIER: From the standpoint of the problem my 16 testimony addresses. 17 MR. O'LAUGHLIN: Maybe we can cut this really short, 18 then. Are you saying that your testimony is strictly 19 limited to comparing Alternative Number 5 -- let me go back 20 -- comparing Alternative Number 5 and Alternative Number 8 21 in relationship solely to temperature during the May 22 outmigration period and nothing else? 23 MR. KIER: No. My testimony compares -- my testimony 24 concerns the need for flows adequate to resolve the 25 temperature problem in the Lower San Joaquin River in order CAPITOL REPORTERS (916) 923-5447 9624 1 to achieve the narrative standard and compares the EIR's 2 alternatives in terms of that flow requirement necessary to 3 resolve that temperature problem. That is what my testimony 4 concerns. 5 MR. O'LAUGHLIN: When you look at it, you don't have 6 any other criticism of the San Joaquin River Agreement other 7 than the fact that the flows set forth in that do not meet 8 with your opinion in regards to what is needed for a 9 flow-temperature relationship at Vernalis; is that correct? 10 MR. KIER: That is correct. 11 MR. O'LAUGHLIN: So, before we get to Page 3, then, the 12 essence of that testimony is very succinctly stated, that in 13 your opinion the data clearly establishes that flows at 14 Vernalis must be maintained at 5,000 cfs in order to keep 15 water temperatures below 68 degrees Fahrenheit? 16 MR. KIER: That is correct. There is discussion of the 17 problem on Page 4-2 of the EIR. 18 MR. O'LAUGHLIN: What problem is that? 19 MR. KIER: That survival is very poor above the 20 temperature approximately 68 degrees Fahrenheit, regardless 21 of other conditions, and I am reading from the staff Draft 22 EIR. 23 MR. O'LAUGHLIN: Now, if I understand your testimony 24 correctly, you're not concerned so much about the flow at 25 Vernalis as the temperature; is that correct? CAPITOL REPORTERS (916) 923-5447 9625 1 MR. KIER: I'm bringing back to the Board's attention 2 the fact that temperatures related to flow at Vernalis. 3 MR. O'LAUGHLIN: But in its very essence you don't care 4 about temperature; you don't care about flow from the 5 standpoint if the flow was 1,500 cfs at Vernalis and the 6 temperature was 68 degrees Fahrenheit and below, that would 7 be okay with you? 8 MR. KIER: Could you restate the conditions again? 9 MR. O'LAUGHLIN: Sure. In other words, if the flow at 10 Vernalis is 1,500 cfs and the temperatures are 68 degrees 11 Fahrenheit or below, you are not concerned about the flow 12 aspect; you are concerned about the temperature aspect? 13 MR. KIER: Well, not strictly. Remember, I testified 14 that juvenile salmon leave the home streams and move through 15 the lower river to the Delta over a six-month period, from 16 January through June. The movement of juvenile salmon 17 depends on a number of factors, flow being one of them. 18 And so, I don't have an opinion, quite frankly, on 19 whether 1,500 cubic feet per second during March or April 20 would, you know, would be a disaster as far as juvenile 21 salmon outmigration. It seems terribly low to me, however, 22 in terms of what we saw the day before yesterday about the 23 normal flow, the unimpaired flow of the system. 24 MR. O'LAUGHLIN: Are you aware of any other actions 25 taking place within the San Joaquin River Basin to double CAPITOL REPORTERS (916) 923-5447 9626 1 the anadromous fish populations? 2 MR. KIER: Yeah. Generally, there are a number of 3 other activities that the Department of Fish and Game has 4 been involved in in setting flow regimes for the tributary 5 streams. I know there is an effort underway to identify 6 opportunities for restoring riparian vegetation. I have 7 general knowledge of those other activities. 8 MR. O'LAUGHLIN: On Page 2 of your testimony, Item 9 Number 4 -- excuse me, Item Number 3. What flow levels did 10 you look at in the working paper on restoration needs to 11 more closely approximate the flows that would be required? 12 MR. KIER: The working paper sets out recommended flows 13 for the San Joaquin River at Vernalis. And so, part of my 14 preparation, my testimony, involved comparing the flows in 15 Volume III of the working papers to those alternatives set 16 out in the Draft EIR. 17 MR. O'LAUGHLIN: When you did that comparison, did you 18 compare the working paper flows in regards to the needs to 19 double salmonid populations? Or did you do it when you 20 looked at the AFRP Working Paper for all anadromous fish 21 populations? 22 MR. KIER: I was focused on salmon. 23 MR. O'LAUGHLIN: Salmon? 24 MR. KIER: Yes. And -- pardon me. 25 And it is my understanding that I did that because it CAPITOL REPORTERS (916) 923-5447 9627 1 is my understanding that the Board has established as a 2 narrative objective for the San Joaquin River doubling of 3 chinook salmon. 4 MR. O'LAUGHLIN: In other words, we don't want to be 5 comparing apples and oranges when we are looking at the 6 working paper in the narrative. We want to be looking at 7 flows for salmonids and flows in the 1995 Water Quality 8 Control Plan to try to implement the doubling of chinook 9 salmon; is that correct? 10 MR. KIER: That sounds right. 11 MR. O'LAUGHLIN: When you did that analysis, did you 12 look at the work that the State Water Resources Control 13 Board had done in their Draft EIR in regards to comparing 14 the working paper flows with the different alternatives? 15 MR. KIER: It's a thick EIR. 16 MR. O'LAUGHLIN: This is the San Joaquin River flows at 17 Vernalis, total flow downstream; this is from the appendices 18 to the State Water Resources Control Board Draft EIR. 19 MEMBER FORSTER: The page? 20 MR. O'LAUGHLIN: Page number, it's, A-2 102. 21 Are you ready, Mr. Kier? 22 MR. KIER: Yes -- do the question again. I think I 23 have an answer for you. 24 MR. O'LAUGHLIN: Basically, I put A-2 102 up on the 25 overhead projector. CAPITOL REPORTERS (916) 923-5447 9628 1 Did you use this analysis when you were comparing 2 Alternative Number 5 to the working paper flows? 3 MR. KIER: Yeah. But I had something else that I was 4 using at the time. That was a chart prepared by Mr. 5 Rosecrans. 6 MR. O'LAUGHLIN: What number is that chart, Mr. Kier? 7 MS. KOEHLER: Mr. Chairman, if I may, that is Save the 8 Bay Exhibit 7. The copy Mr. Kier has is not marked. 9 MR. O'LAUGHLIN: Mr. Kier, what is your understanding 10 of AFRP Working Paper flows that were used for that 11 analysis? 12 MS. KOEHLER: Objection. Vague. AFRP Working Paper 13 flows for the? 14 MR. O'LAUGHLIN: The analysis that he is relying upon. 15 What AFRP Working Paper flows? 16 MS. KOEHLER: Repeat the objection. The AFRP flows 17 are from the AFRP Working Paper. 18 C.O. STUBCHAER: First of all, this is Exhibit 7. 19 There are many pages to Exhibit 7. We need to identify 20 which page of Exhibit 7 we are referring to. 21 MR. KIER: Mr. Chairman, at this point I am working off 22 of a chart called, "Projected Flows and Flow 23 Recommendations, San Joaquin River at Vernalis Pulse Flow 24 Period (May pulse sim)." 25 C.O. STUBCHAER: That is the last sheet in the stapled CAPITOL REPORTERS (916) 923-5447 9629 1 Exhibit 7? 2 MR. KIER: Yeah. 3 C.O. STUBCHAER: There is reference there to AFRP 4 Working Paper, and I presume that is what the question 5 pertains to. 6 MR. O'LAUGHLIN: Yes. 7 It says salmon only, do you see that, under the heading? 8 MR. KIER: Yes, I do. 9 MR. O'LAUGHLIN: Is it your understanding that when 10 those flows were put on the chart they did not include the 11 American shad flows or white and green sturgeon flows under 12 the AFRP flows; is that correct? 13 MR. KIER: That is correct. 14 MR. O'LAUGHLIN: Do you have an understanding of 15 whether or not the AFRP Working Paper flows for salmon are 16 met in more years and more months under Alternative 5 than 17 the other alternatives? 18 MR. KIER: It is my recollection that Alternative 5 19 comes the closest to the AFRP Working Paper flows. 20 MR. O'LAUGHLIN: Actually, if you look at the chart 21 that is up on the -- I don't know if you can see that. I am 22 going to take that down. That is way too difficult to 23 read. Even if you back it up, it gets distorted. 24 C.O. BROWN: Thank you. 25 MR. O'LAUGHLIN: You get blurry eyed. CAPITOL REPORTERS (916) 923-5447 9630 1 MR. KIER: Which page? 2 MR. O'LAUGHLIN: A-2 102. 3 MR. KIER: Okay. 4 MR. O'LAUGHLIN: Is it your understanding under the 5 AFRP flows in the analysis done by the State Water Resources 6 Control Board that the shortfall in meeting the working 7 paper flows occurs generally in the months of April, May and 8 June under all conditions? Is that correct? 9 MR. KIER: I believe that is correct. 10 MR. O'LAUGHLIN: Do you know if the State Water 11 Resources Control Board did its appendices whether or not it 12 used the salmon criteria for AFRP Working Paper flows or 13 whether it used the highest recommended flows? 14 MR. KIER: I do not. 15 MR. O'LAUGHLIN: Did you do a comparison or an analysis 16 of whether or not, if you took the AFRP Working Paper flows 17 for salmon and put them into the analysis done by the State 18 Water Resources Control Board, whether or not they would be 19 met in the April, May and June time period? 20 MR. KIER: Say that again, please. 21 MR. O'LAUGHLIN: Do you know whether or not if you took 22 only the salmon AFRP Working Paper flow recommendations and 23 put them into the analysis done by the State Water Resources 24 Control Board, that the flow requirements, the AFRP Working 25 Paper requirements, excuse me, would be met in the April, CAPITOL REPORTERS (916) 923-5447 9631 1 May and June time period? 2 MS. KOEHLER: Objection. Vague and ambiguous and 3 unintelligible. I don't know if anybody knows what put into 4 the State Water Board flows means. 5 C.O. STUBCHAER: Mr. O'Laughlin, I think the question 6 could be clarified. I had a question, you did not specify 7 year type, if you were talking about a specific year 8 type. I don't know. Could you -- 9 MR. O'LAUGHLIN: Yes, I will. Thank you, Chairman 10 Stubchaer. 11 Let's take for example -- I am looking at this is CP682 12 San Joaquin River at Vernalis flow downstream. It says in 13 here -- I will just look at the Stanislaus -- 14 MR. KIER: Wait a minute. I don't have it. Okay. 15 MR. O'LAUGHLIN: Well, looking at the graph here, what 16 it does, the first location they have is Stanislaus River 17 from Goodwin Dam to the San Joaquin River confluence. If 18 you look in the wet year type in April, it has a flow of 19 1,500 cfs. 20 Do you see that, wet year April? 21 MR. KIER: 1,500 cfs. 22 MR. O'LAUGHLIN: 1,500 cfs for salmonids. 23 MR. KIER: For Stanislaus River. 24 MR. O'LAUGHLIN: For the Stanislaus River. 25 MR. KIER: Okay. What is that? CAPITOL REPORTERS (916) 923-5447 9632 1 MS. ANDREWS: Want to confirm we are on the right page. 2 MR. O'LAUGHLIN: Why don't you describe for me what 3 information you looked at, Mr. Kier, in the Draft EIR to 4 support your working paper flows? 5 MS. KOEHLER: Objection. Mr. Kier doesn't have working 6 paper flows. The question was: Tell me what information 7 you looked at to support your working paper flows. He has 8 not put forward any working paper flows. The flows are in 9 the working paper. He relied on those. 10 MR. O'LAUGHLIN: Just briefly, Chairman Stubchaer, if I 11 may. 12 C.O. STUBCHAER: Mr. O'Laughlin. 13 MR. O'LAUGHLIN: I am just trying to understand, he's 14 coming to his testimony, and saying he is relying on working 15 paper flows. And what I am trying to understand, I will 16 just ask it very simple: What working paper flows did you 17 reply upon? 18 MR. KIER: The flows at Vernalis. And the Board's own 19 document states at Page 6-50: 20 For the San Joaquin River at Vernalis 21 Alternative 5 flows stand as being the 22 closest to recommended flows in all year 23 times. (Reading.) 24 MR. O'LAUGHLIN: My understanding is you have no 25 understanding as you sit here today what the State Water CAPITOL REPORTERS (916) 923-5447 9633 1 Resources Control Board staff relied upon in setting forth 2 that chart which is Table 6-37? 3 MS. ANDREWS: Table is -- 4 MR. KIER: The table is on the preceding page. It's 5 6-35. 6 MR. O'LAUGHLIN: Let me ask it a different way. 7 Do you know when the State Water Resources Control 8 Board staff did the Draft EIR in regards to Table 6-35, if 9 they used only the salmonid projections for the working 10 paper or whether they used the highest recommending flow 11 within any given month? 12 MR. KIER: I do not. I do not know whether they 13 included considerations other than the salmon requirements 14 in the AFRP. 15 MR. O'LAUGHLIN: Do you know whether or not the San 16 Joaquin River Agreement changes the February, March, May or 17 June flow requirements for the 1995 the Water Quality 18 Control Plan? 19 MR. KIER: Just trying to figure out how that 20 experiment effects -- no, I don't. 21 MR. O'LAUGHLIN: Do you know within the San Joaquin 22 River Agreement that there is an ability to adapt to the 23 outmigration of salmon smolts to maximize the pulse flow to 24 fish outmigration? 25 MS. KOEHLER: Objection. This witness has testified CAPITOL REPORTERS (916) 923-5447 9634 1 several times that he viewed the VAMP experiment in 2 Plaintiff's A, but not the text to the San Joaquin Agreement 3 itself. 4 C.O. STUBCHAER: I think the question was did he know. 5 MR. O'LAUGHLIN: Did he know. 6 C.O. STUBCHAER: He can answer if he knows or not. 7 MR. KIER: Say it again, please. 8 MR. O'LAUGHLIN: Do you know whether or not the San 9 Joaquin River Agreement has the ability to adapt the pulse 10 flow to meet the salmon smolt outmigration? 11 MR. KIER: The Chairman recalled for us Footnote Number 12 18 that makes clear that the time frame in which pulse flows 13 can be provided to aid juvenile salmon outmigration can be 14 extended beyond the strict 30-day period, mid April to mid 15 May. And my response at that time was to point out that if 16 the purpose is to allocate water, that it will probably be 17 allocating an amount of water to aid juvenile salmon 18 outmigration. So recalling that outmigration occurs over a 19 six-month period, there may well not be enough water to 20 accomplish aiding outmigration at all times. 21 MR. O'LAUGHLIN: Let's assume there is a limited 22 supply of water available. Do you believe it is a good idea 23 for water managers and biologists to try to cooperate to 24 maximize the flow outmigration correlation to get the 25 biggest bang for the buck? CAPITOL REPORTERS (916) 923-5447 9635 1 MR. KIER: Well, cooperation is a good thing. But 2 having enough water to address the needs of salmon 3 restoration, in my view, is also a good thing. So, I assume 4 what we are doing here is trying to identify an amount of 5 water sufficient to accomplish the Board's narrative 6 objective, narrative standard. 7 MR. O'LAUGHLIN: Well, do you know under Alternative 5 8 if there is a mechanism in place whereby on the San Joaquin 9 River the fishery biologists and the people who hold the 10 water rights can get together and figure out a plan in order 11 to maximize the limited water resource for the benefit of 12 outmigrating smolt salmons? 13 MR. KIER: You are referring to the VAMP? 14 MR. O'LAUGHLIN: No. I am returning to Alternative 15 Number 5. 16 MR. KIER: I wasn't specifically aware of that. 17 MR. O'LAUGHLIN: Isn't Alternative Number 5 a fairly 18 rigid water allocation assessment for the San Joaquin River? 19 MR. KIER: I don't know how it affects water 20 allocation in the San Joaquin. 21 MR. O'LAUGHLIN: Do you know, as you sit here today, 22 under Alternative Number 5 who would be making the 23 determination as to when the pulse flow should occur on the 24 San Joaquin River if there was to be an adaptation from the 25 31-day April/May time period? CAPITOL REPORTERS (916) 923-5447 9636 1 MR. KIER: The footnote referred to an operating 2 group. 3 MR. O'LAUGHLIN: What studies other than the California 4 Department of Fish and Game Report have you relied upon for 5 your analysis of the relationship between temperature and 6 flow at Vernalis? 7 MR. KIER: I know of no other studies that attempted to 8 relate flow and temperature at Vernalis other than the ones 9 submitted by the Department of Fish and Game, 1987. 10 MR. O'LAUGHLIN: Have you reviewed Baker, Speed & 11 Ligon, "The Influence of Temperature on the Survival of 12 Chinook Salmon Smolts Migrating through the Sacramento-San 13 Joaquin River Delta of California, December 3rd, 1993"? 14 MR. KOEHLER: Mr. O'Laughlin, if you would show what 15 you are referring to to Mr. Kier; that might help him 16 ascertain whether he has -- 17 C.O. STUBCHAER: Ms. Koehler, will you please use the 18 mike. 19 MS. KOEHLER: Sorry. 20 C.O. STUBCHAER: And direct the questions to the Chair 21 for sake of procedure, please. 22 MS. KOEHLER: I apologize. My suggestion, Mr. 23 Chairman, is if Mr. O'Laughlin is going to refer to a 24 document, that it would aid Mr. Kier in ascertaining whether 25 he had reviewed that document if he can show it to Mr. Kier. CAPITOL REPORTERS (916) 923-5447 9637 1 Mr. Kier is now looking through his notebook to see if he 2 has that. It would aid him in ascertaining if he has, in 3 fact, seen that document. 4 C.O. STUBCHAER: If Mr. O'Laughlin has that document. 5 Do you have the document handy, Mr. O'Laughlin? 6 MR. O'LAUGHLIN: No. Actually, Mr. Kier has it right 7 in his notebook. 8 C.O. STUBCHAER: Mr. Jackson. 9 MR. JACKSON: I have a different form of objection. 10 Mr. Kier's testified as an expert witness and under the 11 Evidence Code, and I believe under the Board's own 12 regulations, a witness is not -- is required to rely on what 13 they reviewed to give an expert opinion. You cannot go 14 through a series of other textbooks to determine whether or 15 not the witness reviewed all possible data anywhere in the 16 public record in order to impeach their opinion. And so I 17 would argue that that question is unallowable under the 18 Evidence Code. 19 C.O. STUBCHAER: Any other comments? 20 Time-out a minute. 21 (Discussion held off the record.) 22 C.O. STUBCHAER: Come back to order. Back on the 23 record. 24 Mr. Jackson, I understand the nature of your 25 objection. We recognize there are thousands of books on a CAPITOL REPORTERS (916) 923-5447 9638 1 particular subject. No one is going to ever read all of 2 them, but I am going to allow the question, whether the 3 witness has looked at a specific book. That is a question 4 of fact. But it doesn't impeach him as an expert witness, 5 the fact that he may not have. 6 Please answer the question if you can. 7 MR. KIER: It might be well to restate the question. 8 MR. O'LAUGHLIN: I just asked if you had looked at the 9 Baker, Speed & Ligon temperature study. 10 MR. KIER: I have. It looks like it is from several 11 years ago, Exhibit Number WRINT MID TID 32. I think that is 12 from five or so years ago. 13 MR. O'LAUGHLIN: What other information, other than -- 14 you looked at that abstract. Have you looked at any other 15 reports or journals other than the 1987 Fish and Game report 16 to support your opinion and conclusion on temperature and 17 flow? 18 MR. KIER: Look, I am a consulting fishery biologist. 19 And temperature is a very important consideration in setting 20 flows. We have just completed an exhaustive study of flow 21 and temperature relationships on Battle Creek, and so I have 22 been up to my armpits in information about flow temperature 23 relationship and temperature requirements of salmon and 24 salmon restoration. That is what I do for a living. 25 MR. O'LAUGHLIN: I understand that. What I want to CAPITOL REPORTERS (916) 923-5447 9639 1 get at more specifically is what specific information, other 2 than the Fish and Game report, are you relying on for your 3 relationships of flow and temperature at Vernalis? 4 MR. KIER: I have already testified that I know of no 5 other studies relating flow and temperature other than that 6 prepared by the Department of Fish and Game and submitted to 7 the Board in 1987. 8 MR. O'LAUGHLIN: With that statement, would it be safe 9 to say that you did not review Mr. Marty Kjelson's work in 10 preparation for Phase II, Exhibit, I believe it is, F or G 11 in his temperature analysis at Vernalis for the last 20 12 years? 13 MR. KIER: My recollection for the Fish and Wildlife 14 Service work was that they were releasing fish and 15 recovering them as far west in the Delta as Chipps Island, 16 so there would have been a number of factors that Kjelson's 17 work would have to take into consideration. 18 MR. O'LAUGHLIN: Specifically, though, under Department 19 of Interior Phase II testimony, Exhibit 2-F, a temperature 20 summary at Mossdale, 1984 through 1997, have you -- did you 21 review that, Mr. Kier? 22 MR. KIER: Did not. 23 MR. O'LAUGHLIN: That information takes off from the 24 Fish and Game information and provides more current 25 information in regards to temperatures. Do you know that? CAPITOL REPORTERS (916) 923-5447 9640 1 MR. KIER: If that is what it is, that is what it is. 2 MR. O'LAUGHLIN: In regards to the California 3 Department of Fish and Game exhibit that you've put a Save 4 the Bay Exhibit Number 5, can you tell me when I am looking 5 at Page Number 26 of that report -- 6 MR. KIER: Yes. 7 MR. O'LAUGHLIN: -- what type of temperatures are 8 those? Are they minimums? Maximums? Means? Averages? 9 What are those? 10 MR. KIER: Those are average temperatures, as I 11 recall. 12 MR. O'LAUGHLIN: Average temperatures based on daily 13 average temperatures or temperatures based on a monthly 14 model? 15 MR. KIER: The exhibit explains how the Department of 16 Fish and Game arrived at those temperatures. 17 MR. O'LAUGHLIN: Well -- 18 MR. KIER: It seems to me that the temperatures were 19 reported in different ways at different times over the 20 20-year span. And the Department explained how they 21 adjusted those differences. That's in the exhibit. 22 MR. O'LAUGHLIN: That is in the exhibit under Page 23 Number 25. It says: 24 Mean monthly temperatures for the period 1964 25 to 1969 were used as published. (Reading.) CAPITOL REPORTERS (916) 923-5447 9641 1 And then it says: 2 The midpoint, the median, was used when 3 maximum-minimum temperature ranges were 4 provided 1974 through 1984. (Reading.) 5 Do you see that? 6 MR. KIER: Yes. 7 MR. O'LAUGHLIN: Now, do know if those temperatures 8 that were used for a day were a daily average temperature? 9 Or were those maximums or minimums for that day? 10 MR. KIER: Say that again. 11 MR. O'LAUGHLIN: Sure. My understanding is that 12 temperature data that was arrived was the temperature data 13 that was used in this exhibit. Was it the maximum 14 temperature for the day? The average temperature for the 15 day? Or the median temperature or the minimum temperature 16 which was then used in this chart? 17 MR. KIER: Well, the exhibit says that mean monthly 18 temperatures for the period 1964 to 1969 were used as 19 published. That means published, I assume, by the United 20 States Geological Survey. And that the midpoint or median 21 was used when maximum and minimum temperatures -- 22 mini-maximum temperature ranges were provided for the period 23 1974 to 1984. 24 MR. O'LAUGHLIN: What I am trying to ascertain is how 25 were the mean monthly temperatures arrived at. There is a CAPITOL REPORTERS (916) 923-5447 9642 1 methodology for doing that. Do you know what the 2 methodology was to arrive at this report? 3 MR. KIER: You are referring to those temperatures that 4 were published? 5 MR. O'LAUGHLIN: 1964 -- 6 C.O. STUBCHAER: Please, one at a time. 7 MR. O'LAUGHLIN: Sorry about that, Chairman Stubchaer. 8 MR. KIER: You're referring to the 1964 through 1969 9 temperatures that were indicated here as published, 10 presumably, by the USGS? 11 MR. O'LAUGHLIN: Right. I want to know if you 12 understand the methodology by which they came up with the 13 mean monthly temperature. 14 MR. KIER: You know, I don't know how the USGS would 15 have determined mean monthly temperatures for that period 16 for that station. 17 MR. O'LAUGHLIN: Let's move on to the next point. It 18 says: 19 The midpoint, the median, was used when 20 maximum-minimum temperature ranges were 21 provided, 1974 through 1984. (Reading.) 22 Can you explain to me the methodology that was used to 23 arrive at the median? 24 MR. KIER: Presumably, it is what it says it is. 25 MR. O'LAUGHLIN: Did they use the maximum temperature CAPITOL REPORTERS (916) 923-5447 9643 1 range for a day or the minimum temperature range for a day? 2 MR. KIER: It says they used the midpoint of the 3 maximum-minimum range. 4 MR. O'LAUGHLIN: Was that on a daily basis? A weekly 5 basis or a monthly basis? 6 MR. KIER: I presume it was on a daily basis. 7 MR. O'LAUGHLIN: So, on a daily basis they plotted the 8 median for the day and then arrived at a median for the 9 month? 10 MR. KIER: That is my understanding. 11 MR. O'LAUGHLIN: Now, I am assuming you agree with the 12 finding on Page 25 that the California Department of Fish 13 and Game found no correlation between stream flow and water 14 temperatures in March and April? 15 MR. KIER: That is what it says. 16 MR. O'LAUGHLIN: Do you agree with that opinion? 17 MR. KIER: It is their work. I assume they know their 18 work. 19 MR. O'LAUGHLIN: No. My question is more specific. 20 As you sit here today as an expert witness, do you 21 agree with the opinion expressed in this report that Fish 22 and Game found no correlation between stream flow and water 23 temperature in March and April? 24 MS. KOEHLER: Objection. That is a mischaracterization 25 of his statement. It is not an opinion. It is a statement CAPITOL REPORTERS (916) 923-5447 9644 1 of fact characterizing the data in the report. It is not an 2 opinion of the -- 3 C.O. STUBCHAER: Let's talk to me and please use the 4 mike, but I do happen to agree with you. That I was 5 wondering, it seemed to me like a statement of fact, not an 6 opinion. 7 Please rephrase the question. 8 MR. O'LAUGHLIN: Let me rephrase it. 9 Do you agree with the fact expressed in the report by 10 the California Department of Fish and Game that they found 11 no correlation between stream flow and water temperature in 12 March or April? 13 MR. KIER: I have no reason to disagree with that 14 statement. 15 MR. O'LAUGHLIN: Did you ever plot the ambient air 16 temperatures for Stockton in relationship to flow at 17 Vernalis? 18 MR. KIER: No. Let me just make it clear, that I have 19 made no independent investigation. I am relying upon 20 published material of others here in developing my 21 testimony. 22 MR. O'LAUGHLIN: Well, would it be safe to say that if 23 I called a witness from the California Department of Fish 24 and Game to testify that in their opinion there was no 25 relationship between flow and temperature at Vernalis at CAPITOL REPORTERS (916) 923-5447 9645 1 5,000 cfs, would you agree with that? 2 MS. KOEHLER: Objection. That is not what this says. 3 This states there is no correlation. That is distinct from 4 Mr. O'Laughlin's attempt to recharacterize this. 5 MR. O'LAUGHLIN: I am not talking about that. What I 6 am talking about is in response to my question. He says he 7 is relying upon the work of others. 8 So, what I want to know is that if I call a witness 9 from the California Department of Fish and Game, which 10 specifically says there is no correlation between flow at 11 Vernalis and temperature in the month of May at 5,000 cfs, 12 would you agree with the opinion? 13 C.O. STUBCHAER: I am going to sustain the objection. 14 You can try it another way, but that is speculation. 15 MEMBER DEL PIERO: It was sustained. Reask the 16 question. 17 MR. O'LAUGHLIN: Oh, it was sustained. Okay. 18 Did you have an understanding, based on the California 19 Department of Fish and Game's work, as to the percentage of 20 fish that usually outmigrate from the San Joaquin River 21 Basin prior to May 1st, percentagewise? 22 MR. KIER: You know, I think that this exhibit that the 23 Department submitted to the Board discusses that. And the 24 thrust of this information is that May is the peak of smolt 25 migration through that lower Vernalis reach, and that is why CAPITOL REPORTERS (916) 923-5447 9646 1 the Department was concerned. 2 And I don't recall specifically percentages by time 3 periods. It may be discussed in here. It's been a while 4 since I have gone through the entire exhibit. 5 MR. O'LAUGHLIN: Can you point to me within the exhibit 6 where you find that there is a statement by Fish and Game as 7 to the percentage of fish that have outmigrated? 8 MR. KIER: Let's just take a minute. It's not that big 9 a document. 10 MR. O'LAUGHLIN: Sure. 11 MR. KIER: You have an example given as Tuolumne River. 12 MR. O'LAUGHLIN: What page is that? 13 MR. KIER: On Page 17 you can see the outmigration 14 period plotted for the Tuolumne River, which would be 15 earlier than for the Vernalis reach. 16 MR. O'LAUGHLIN: It plots that based on a percentage of 17 the total chinook. Looking at that chart, can you tell me 18 after what percentage of fish have outmigrated from the 19 Tuolumne River for 1983, '84 and '85 by the time period 20 April 30th? Isn't it in excess of 80 percent of the fish? 21 MR. KIER: For the Tuolumne River, yes, it is. 22 MR. O'LAUGHLIN: Would you have any basis to believe 23 that the Merced or Stanislaus River outmigrate periods would 24 be any different? 25 MR. KIER: I think about the same. CAPITOL REPORTERS (916) 923-5447 9647 1 MR. O'LAUGHLIN: On or about April 30th of any given 2 year, realizing it changes form year to year, 80 percent of 3 the salmon smolts have outmigrated, ballpark? 4 MR. KIER: From the tributary streams. 5 MR. O'LAUGHLIN: Now, do you have any information 6 within this document which talks about outmigration at 7 Vernalis? 8 MR. KIER: I seem to recall that discussion, but I have 9 looked at a number of documents, including the Department's 10 lengthy comments on the Draft EIR, and I believe that 11 outmigration timing is discussed in that 40 some-odd page 12 document. 13 MR. O'LAUGHLIN: Here is the question that I am trying 14 to get at, and I am having difficulty understanding this: If 15 most of the fish in the San Joaquin River Basin have 16 outmigrated or a large percentage have outmigrated by May 17 15th, what is the benefit of pouring more water down the 18 San Joaquin River to lower temperatures at Vernalis? 19 MR. KIER: I think that your statement is not correct. 20 The charts that we just looked at showed that in those 21 years, '83, '-4, '-5, whatever they were, that the 22 Department sampled fish in the Tuolumne River. They found 23 that most of the fish were out of the Tuolumne River for 24 those years by May. But, that doesn't speak to the length 25 of time that it would take to get out of the Lower San CAPITOL REPORTERS (916) 923-5447 9648 1 Joaquin River in the Delta. 2 MR. O'LAUGHLIN: Do you know the travel time from the 3 Tuolumne River through Vernalis? 4 C.O. STUBCHAER: From what river? 5 MR. O'LAUGHLIN: Tuolumne River. From the Tuolumne 6 River to Vernalis travel time for salmon smolts 7 outmigrating. 8 MR. KIER: No. But in responding to your earlier 9 question, on Page 23 of the Department of Fish and Game's 10 submittal, 1987 submittal, Ms. Andrews has brought to my 11 attention that it is stated that the San Joaquin origin 12 chinook salmon smolts are dispersed throughout the 13 tributaries and lower river by mid February and, generally, 14 immigrate to the Delta during the period March 15 through at 15 least the first week of June. 16 So, if you have -- if your objective is to double the 17 production of chinook salmon in the San Joaquin River Basin, 18 and if, as the Department has reported to the Board, when 19 flows fall below 5,000 cubic feet per second at Vernalis 20 during May, temperatures rise to stressful levels. And if, 21 as the Department reports, fish are migrating through at 22 least the first week of June -- and I believe in their 23 submittal to Victoria Whitney of April 1st, 1998, they say 24 that the Department now knows that fish migrate even further 25 into -- virtually through June. CAPITOL REPORTERS (916) 923-5447 9649 1 Then, one would be concerned with flow temperature 2 relationships or temperature conditions, rather, at Vernalis 3 during May, which I think answers your question. 4 MR. O'LAUGHLIN: Let me ask it another way. Would you 5 be recommending to this Board if that there were no salmon 6 smolts outmigrating from May 15th to June 15th to increase 7 the flow above 5,000 cfs in the San Joaquin River? 8 MR. KIER: Would I be recommending to the Board if 9 there were no -- 10 MR. O'LAUGHLIN: No salmon smolts outmigrating. 11 MR. KIER: Outmigrating during what period? 12 MR. O'LAUGHLIN: May 15 to June 1st, would you then 13 still ask the Board to increase the flows to 5,000 cfs or 14 above? 15 MR. KIER: My temperature testimony addressed the needs 16 of chinook salmon smolt outmigrating in the lower river 17 based upon the development of Fish and Game's information 18 about when fish were there. 19 As far as jiggering that time around, I don't see any 20 purpose in discussing hypotheticals when you have 21 department's information to deal with. 22 MR. O'LAUGHLIN: Would it be safe to say, then, that 23 under your testimony the State Water Resources Control Board 24 should have at its disposal in order to implement an order 25 an unfeathered amount of water in order to meet the CAPITOL REPORTERS (916) 923-5447 9650 1 requirement for the narrative standard? 2 MR. KIER: Well, I think if the Board has established a 3 policy of doubling chinook salmon in the basin, then they 4 should address those concerns that we have documented that 5 bear on the ability to double salmon production in the 6 basin. And the temperature problem at Vernalis is something 7 that has to be addressed. That is the entire purpose of my 8 testimony. 9 MR. O'LAUGHLIN: Have you done any analysis to look at 10 the amount of water that will be needed on an average annual 11 basis in order to meet your requirements and compare that to 12 the impacts of the upstream tributaries? 13 MR. KIER: No, I didn't do that in preparing my 14 testimony. 15 MR. O'LAUGHLIN: I know you say Alternative Number 5 is 16 a superior alternative. Did you look at the impacts of 17 Alternative Number 5 on the Friant unit? 18 MR. KIER: No. 19 MR. O'LAUGHLIN: Do you have a belief or an opinion as 20 you sit here today from what tributary this water should 21 come from in order to decrease the water temperature at 22 Vernalis? 23 MR. KIER: Do not. 24 MR. O'LAUGHLIN: Does it make any difference in your 25 analysis from what tributary the water comes from in order CAPITOL REPORTERS (916) 923-5447 9651 1 to lower temperature at Vernalis? 2 MR. KIER: Well, from the standpoint of doubling salmon 3 production, the basin higher up in the system the water 4 comes from, the better it would be for salmon production. 5 MR. O'LAUGHLIN: So, on the San Joaquin River Basin, 6 given that statement, where should the water come from in 7 order to meet that requirement? 8 MR. KIER: Ideally from all potential sources. 9 MR. O'LAUGHLIN: What is your understanding of the 10 farthest one up on the San Joaquin River that is going to 11 help meet this temperature requirement at Vernalis? 12 MR. KIER: I think that the Department has secured a 13 condition and the FERC agreement on one of the tributaries 14 that specifically speaks to the need to provide water in the 15 lower river at, I think it is, the Tuolumne. 16 MR. O'LAUGHLIN: Well, let me ask you a question. 17 Under your analysis, have you done an analysis as to whether 18 or not it is better to release Stanislaus River water since 19 it is much closer to Vernalis in order to meet temperature 20 requirements? Or is it better to go all the way back to 21 Millerton Lake and release water from Friant in order to 22 meet the temperature requirement? 23 MR. KIER: I haven't looked at that, any independent 24 analysis. 25 MR. O'LAUGHLIN: Do you know whether or not in CAPITOL REPORTERS (916) 923-5447 9652 1 releasing water from Millerton Lake from the Friant unit in 2 order to meet your flow objectives that it can be done in 3 order to meet the temperature requirements that you are 4 looking at? 5 MS. KOEHLER: Objection. Mr. O'Laughlin has 6 incorrectly characterized Mr. Kier's having his own flow 7 objective. 8 MR. O'LAUGHLIN: I'm sorry. I'll take that back, I 9 will rephrase the question. I didn't mean that, Mr. Kier. 10 I am sorry about. 11 Under your opinion, do you know whether, if you went 12 back to Millerton Lake and released an amount of water to 13 get 5,000 cfs at Vernalis, if that release from Friant 14 would, in fact, meet your temperature objective at Vernalis? 15 MR. KIER: Are you suggesting in this question that 16 entire amount comes from Millerton Lake? 17 MR. O'LAUGHLIN: Absolutely. What I want you to 18 envision is that you take as much water as you want from 19 Friant, any release that you want from Friant in order to 20 get 5,000 cfs at Vernalis because that is what you want, 21 correct? 22 MR KIER: I assume that the 5,000 would come from each 23 of the tributaries and perhaps the upper river as well. 24 MR. O'LAUGHLIN: Upper San Joaquin River? 25 MR. KIER: Yeah, up above. CAPITOL REPORTERS (916) 923-5447 9653 1 MR. O'LAUGHLIN: I just want to go to a hypothetical, a 2 real easy one. Assume no contribution by any of the 3 tributaries. You have complete discretion to go to Friant 4 and get as much water as you want and send it down the main 5 stem of the San Joaquin River in order to get your 5,000 cfs 6 requirement at Vernalis in May. Do you know if that water 7 that arrives at there would meet your temperature 8 requirement? 9 MR. KIER: I have trouble imagining the river without 10 any contributions whatsoever from the tributary streams. 11 But as far as imagining the river without any contribution 12 from any of the tributary streams, I don't know. 13 MR. O'LAUGHLIN: We are almost done. 14 In regards to your analysis, have you done any review 15 of looking at differences in increments of flow, 500 cfs or 16 a thousand, from the different tributaries in order to meet 17 the flow requirement at Vernalis? 18 MR. KIER: No. I -- again, my testimony was drawn, for 19 the most part, from the Department of Fish and Game's 20 concern about temperature flow relationship at Vernalis. 21 MR. O'LAUGHLIN: Real quickly. On Page 3, the first 22 line says: 23 While the design of the Vernalis Adaptive 24 Management Program is thoughtful and the 25 experiment may well yield some interesting CAPITOL REPORTERS (916) 923-5447 9654 1 data, it falls far short of a means to 2 achieve the salmon doubling goal on some of 3 the same grounds that the Vernalis standard 4 itself fails. (Reading.) 5 Do you see that? 6 MR. KIER: Yes. 7 MR. O'LAUGHLIN: This gets us back to the point very 8 briefly that the flows are not sufficient within the 1995 9 Water Quality Control Plan to double salmon. And if the San 10 Joaquin River Agreement meets the flow standards, the 11 numeric standards, it, too, will fail in meeting the 12 narrative objective? 13 MR. KIER: Yes. That is what is stated. 14 MR. O'LAUGHLIN: Do you know if the Vernalis Adaptive 15 Management Plan calls for willing seller purchases during 16 the pulse flows during other times of the year to meet AFRP 17 flows? 18 MR. KIER: I don't know what the arrangements are for 19 acquiring water for the experiment, no. 20 MR. O'LAUGHLIN: Do you have an opinion as to whether 21 or not it is a good idea to reduce exports during the 22 outmigration of salmon smolts to the San Joaquin River 23 Bay-Delta? 24 MR. KIER: Certainly. That is being done now to 25 accommodate salmon outmigration. CAPITOL REPORTERS (916) 923-5447 9655 1 MR. O'LAUGHLIN: Do you believe that it may be better 2 to even reduce exports further during the outmigration 3 period, or do you agree that Delta Smelt Biological Opinion 4 in regards to exports adequately addresses needs to protect 5 salmon smolts? 6 MR. KIER: I don't have those opinions on export 7 issues. 8 MR. O'LAUGHLIN: One second. If you'd give me a second 9 to review my notes, Mr. Chairman, I believe I will be done 10 with Mr. Kier this morning. 11 C.O. STUBCHAER: Yes. 12 MR. O'LAUGHLIN: I have no further questions for Mr. 13 Kier at this time. 14 C.O. STUBCHAER: Would you want to use the nine minutes 15 before lunch to resume examination of Ms. Andrews or would 16 you prefer a lunch break? 17 MR. O'LAUGHLIN: I would prefer a lunch break, because 18 at the workshop I will probably be standing up for a little 19 bit of time again. So if you don't mind, I wouldn't mind 20 collecting my thoughts in preparation for the workshop this 21 afternoon, if that is agreeable to the Chairman. 22 C.O. STUBCHAER: We are going to take a lunch break, 23 but before we do we understand there will be some 24 legislators to give us policy statements, legislators or 25 their representatives. CAPITOL REPORTERS (916) 923-5447 9656 1 I have a letter from Senator Costa already. I would 2 like to have a show of hands of people who expect to have 3 legislators make policy statements. 4 MR. O'LAUGHLIN: I think we are going to have either -- 5 between legislators or the legislative staff people, I think 6 we have four. It may be five. 7 C.O. STUBCHAER: Four or five? 8 MR. O'LAUGHLIN: Yes. 9 C.O. STUBCHAER: And then we plan to meet from one to 10 four, of course. And we want to reserve some time at the 11 end of the workshop for discussion because sometimes 12 discussion back and forth generates good ideas, rather than 13 just one-way communication. So, probably take the time 14 remaining after we hear the policy statements and divvy it 15 up among the number of parties who intend to make statements 16 during the workshops. 17 I would like to have a showing of hands or of those 18 parties who intend to make statements during the workshop. 19 MR. GOODWIN: I want to mention, there are some parties 20 that are coming at one to make statements and they're not 21 here. 22 C.O. STUBCHAER: We have a lot of parties. 23 MR. NOMELLINI: Mr. Jackson indicated that he would be 24 absent at the beginning of the workshop, but was going to 25 return and would like to make a comment if it was CAPITOL REPORTERS (916) 923-5447 9657 1 permissible at the time he returned. 2 C.O. STUBCHAER: Let's just take a couple of minutes 3 and identify the parties who are here, so Ms. Whitney can 4 pull your cards. We will get the rest after lunch. 5 And Mr. Brown. 6 Mr. Hasencamp, Mr. Sandino, Mr. Aladjem, Mr. 7 O'Laughlin, Mr. Brandt, Mr. Nomellini, Mr. Herrick. 8 MR. ROBERTS: Probably Cliff Schulz from State 9 Contractors. 10 C.O. STUBCHAER: I remember your first name but -- 11 MR. ROBERTS: Roberts. 12 C.O. STUBCHAER: Roberts from Metropolitan. 13 UNIDENTIFIED VOICE: Mr. Etheridge from East Bay MUD 14 will probably make a short statement. 15 C.O. STUBCHAER: All right. Etheridge, Koehler. 16 Who did you mention would do it for state contractors? 17 MR. ROBERTS: Cliff Schulz. 18 MR. NOMELLINI: You have Mr. Jackson on the list? 19 C.O. STUBCHAER: Jackson. Probably Mr. Birmingham. 20 MS. MINNIBARAGARI: No, I don't think so. 21 C.O. STUBCHAER: How many is that, Mr. Brown? 22 I am going to ask Mr. Brown to read the names, and 23 anyone whose name isn't called who wants to be on the list, 24 please raise your hand again. 25 C.O. BROWN: Hasencamp, Sandio, Aladjem, O'Laughlin, CAPITOL REPORTERS (916) 923-5447 9658 1 Brandt, Nomellini, Herrick, Schulz, Roberts, Etheridge, 2 Koehler, Jackson. 3 MR. ROBERTS: Metropolitan won't do one individually. 4 Roberts will not be on there. 5 C.O. BROWN: Can we take them off the list once we put 6 them on? 7 C.O. STUBCHAER: We will give double credit. 8 C.O. BROWN: That is 11, Mr. Chairman. 9 C.O. STUBCHAER: So, if we have three hours, that is 10 180 minutes. Fifteen minutes each. 11 MEMBER DEL PIERO: Man, you are good. 12 C.O. STUBCHAER: That may be wrong. 13 MR. O'LAUGHLIN: That would be 120 minutes. 14 C.O. STUBCHAER: I added an extra hour. I am wrong. 15 Okay, that gives us some idea. We'll go through this list 16 after lunch. 17 Ms. Koehler, I didn't recognize you earlier. 18 MS. KOEHLER: If we are ready to move on to scheduling 19 for this hearing. I understand that the next date is the 20 9th of February. I understand Mr. O'Laughlin is finished 21 with Mr. Kier. And for purposes of my scheduling Mr. Kier's 22 time and Ms. Andrews, I would assume that we are -- 23 C.O. STUBCHAER: Mr. Nomellini has not cross-examined 24 yet. 25 MS. KOEHLER: I understand that. There were other CAPITOL REPORTERS (916) 923-5447 9659 1 parties, too, I think. Were there? 2 C.O. STUBCHAER: No. We had only four parties, plus 3 the staff and Board. And the only party who hasn't been 4 called is Mr. Nomellini. And perhaps we can ask Mr. 5 Nomellini if he has questions for Mr. Kier. 6 MR. NOMELLINI: I did have some. If it creates a 7 hardship, I can discuss it with Ms. Koehler. 8 MS. KOEHLER: I am just trying to figure out if I 9 should have Ms. Andrews here first thing, I guess, Tuesday, 10 the 10th. 11 MS. LEIDIGH: The 9th. 12 C.O. STUBCHAER: I would say, yes. We have NHI. We 13 don't know if their witness is going to be recovered enough 14 to be here or yet. If you wanted to check with -- 15 MS. KOEHLER: I will check with Mr. Thomas. I will do 16 that. I just want to make sure we would be expected here 17 first thing. I am assuming I will need to produce Mr. Kier, 18 not only for Mr. Nomellini but also for staff and the Board 19 questions, and there will be some redirect. 20 C.O. STUBCHAER: Yes, for your own redirect. 21 Mr. O'Laughlin. 22 MR. O'LAUGHLIN: Looking at the hearing schedule and 23 given that we may finish on the 9th, hopefully, if Mr. 24 Fullerton is feeling better, I assume by the 10th, we are 25 going to address some time today the rebuttal testimony CAPITOL REPORTERS (916) 923-5447 9660 1 rather than bringing that up on the 9th or 10th because -- 2 we are going to approach it? How many parties have rebuttal 3 cases, and the order of rebuttal? If we go to the 10th and 4 then decide that, that is going to leave a very short time 5 for the party who is up first for rebuttal testimony the 6 following week. 7 C.O. STUBCHAER: We will consider that matter during 8 the lunch break and make an announcement this afternoon. We 9 don't want to take time away from the workshop, but I 10 understand your request. 11 We will break for lunch. Reconvene at 1:00 p.m. 12 sharp. 13 (Luncheon break taken.) 14 ---oOo--- 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 9661 1 AFTERNOON SESSION 2 WORKSHOP 3 ---oOo--- 4 C.O. STUBCHAER: Good afternoon. We will convene the 5 workshop regarding the Bay-Delta proceedings. 6 Just a moment, Mr. Robbins. Before we proceed with the 7 policy statements, I want to make an announcement having to 8 do with the hearing itself. 9 There was discussion this morning regarding rebuttal, 10 timing of rebuttal testimony. We have decided that there 11 will be no testimony before Tuesday, February 16th. We may 12 have to give up one scheduled day of hearings, but that will 13 give the parties at least a week to prepare the rebuttal. 14 The order of rebuttal will be by the random process 15 that we have been using for cross-examination in this 16 proceeding. With that we are going to proceed to the 17 workshop. We are going to read an opening statement. 18 This is the time and place for the workshop on the 19 potential process for issuing phased orders during the 20 Bay-Delta water rights hearing. This workshop is being held 21 in accordance with the Notice of Public Workshop, dated 22 January 14th, 1999. 23 I am Jim Stubchaer. With me today are my fellow Board 24 Members: John Brown, who is Co-Hearing Officer; Mary Jane 25 Forster; Marc Del Piero; and our Executive Director, Walt CAPITOL REPORTERS (916) 923-5447 9662 1 Pettit. 2 Assisting the Board at the staff table are Barbara 3 Leidigh, Senior Staff Counsel; Victoria Whitney, Supervising 4 Engineer; and Tom Howard, Assistant Division Chief, Division 5 Water Rights. 6 The purpose of this workshop to afford the parties an 7 opportunity to present their views on whether and how and 8 under what circumstances the Board should adopt an interim 9 order or orders before the conclusion of the Bay-Delta Water 10 Rights Hearing. 11 The issues listed in the notice of this workshop are as 12 follows: 13 One, should the Board adopt a decision or decisions 14 before the conclusion of the Bay-Delta Water Rights Hearings 15 to resolve substantive issues heard in earlier phases of the 16 hearing? 17 Two, can the Board legally adopt a decision on some 18 phases of the hearing before all phases of the hearing have 19 been completed? What legal requirements must be satisfied 20 before the Board adopts a decision? 21 Three, if the Board adopts a decision before the 22 conclusion of the hearing, will the decision be subjected to 23 judicial review immediately in accordance with Water Code 24 Section 1126? 25 Regarding the order of proceeding: In this workshop we CAPITOL REPORTERS (916) 923-5447 9663 1 will establish an order for the presentation of comments by 2 the parties and set appropriate time limits on the 3 presentations so we can finish the workshop within the 4 amount of time allotted. 5 There will be no cross-examination and rebuttal during 6 this workshop. The Board Members and staff may ask 7 clarifying questions at any time. We will use a timer to 8 keep track of time. As usual, the timer will be stopped 9 during interruptions. 10 The parties will be allowed to file briefs after the 11 workshop. Parties should provide the Board with 20 copies 12 of their briefs. Briefs on the workshop issues must be 13 received by the Division of Water Rights before 5:00 p.m. on 14 March 1st. Hand delivered copies should be delivered to the 15 division's mail room on the third floor and not to the guard 16 desk in our lobby. 17 The Court Reporter is preparing a transcript of the 18 workshop. Parties wishing to have copies of the transcript 19 should make their own arrangements with the Court Reporter. 20 A copy of the transcript will be posted on the Bay-Delta web 21 site no sooner than 60 days after the Board receives the 22 transcript from the Court Reporter. The staff can give you 23 the web page address if you need it. 24 At this time, I would like a show of hands of persons 25 who did not identify themselves this morning as wishing to CAPITOL REPORTERS (916) 923-5447 9664 1 present comments today on workshop issues. 2 Ms. Harrigfeld, Mr. Suyeyasu and Etheridge. 3 Somebody spoke up for you this morning, Mr. Etheridge. 4 If you are not sure if you want to comment, please 5 raise your hand so we can allocate time for you. 6 Anyone else? 7 Okay. 8 At this time we will hear policy statements, and then 9 we will announce the order of presentations of the 10 comments. 11 Mr. Robbins. 12 MR. ROBBINS: Good afternoon, Ken Robbins for Merced 13 Irrigation District and the San Joaquin River Group 14 Authority. We have several elected officials with us this 15 afternoon. We are going to depart slightly from protocol. 16 Assemblyman Dennis Cardoza needs to make a statement 17 and has a meeting at the Capitol and needs to get to it. 18 C.O. STUBCHAER: Good afternoon, Mr. Assemblyman, 19 welcome. 20 ASSEMBLYMAN CARDOZA: Thank you. It is my pleasure to 21 be here today, Chairman Stubchaer and fellow Members of the 22 Board. Thank you for the opportunity to speak. 23 My name is Dennis Cardoza, as you've heard, and I am a 24 member of THE California State Assembly, representing the 25 26th District. That District includes the communities of CAPITOL REPORTERS (916) 923-5447 9665 1 Merced, Stanislaus and San Joaquin Counties and many of my 2 hard working farmers and ordinary people, all Californians, 3 who rely on this state's complex water system for the water 4 to irrigate their fields, their businesses and serve their 5 homes. And they rely on the Board to make sure that their 6 water systems in California work. 7 Now, I know the Board is going to do their best to make 8 sure that our system does work, and one big way through 9 this process is the ongoing Bay-Delta hearings. 10 As this Board knows, its actions are not one, but one 11 part of many and many efforts that are designed to end the 12 seemingly endless water wars in our state. The 1994 Delta 13 Accord represents an unprecedented cooperative effort among 14 government agencies and water users and environmental 15 interests to put away the guns and bullets and put away 16 lawsuits and injunctions and to work together to improve the 17 Bay-Delta system. It was a pledge to stop attacking each 18 other and instead attack the problems, which so greatly face 19 our state. 20 Many members of the water community on all sides took 21 that message to heart and worked in that spirit of 22 cooperation to sit down together and see what they could do 23 to achieve by talking to each other rather than to judges. 24 You have the results of some of those decisions before 25 you now in the form of settlement agreements, such as the CAPITOL REPORTERS (916) 923-5447 9666 1 San Joaquin River Agreement. I urge this Board to give 2 those agreements the fullest consideration possible. 3 I also urge this Board to find the means to look at 4 these settlements and to vote on them before you require the 5 parties to break out their legal arguments again. 6 Settlements can benefit everyone, particularly the public 7 resources that will be caught in the cross-fire if this 8 Board requires water agencies to be shooting again with 9 their legal bullets. 10 Thank you very much. That will conclude my brief 11 statement. If you don't mind, Congressman Condit had 12 intended to be here today, and he's asked me to read his 13 statement into the record. Without objection, I'll go 14 forward. 15 C.O. STUBCHAER: Please do. 16 ASSEMBLYMAN CARDOZA (Reading Congressman Condit's 17 statement): This is his statement. I will mention that his 18 name is Gary Condit, and he represents the 18th 19 Congressional District in California, which includes a large 20 portion of the Northern San Joaquin Valley: 21 As you know, the issues before you are more 22 than contentious. They drive the very heart 23 of how California will allocate resources 24 during the 21st Century as the state's growth 25 is anticipated to sky rocket. You've been CAPITOL REPORTERS (916) 923-5447 9667 1 wrestling for some time with the issue of how 2 best to maintain and preserve the 3 Sacramento-San Joaquin River Estuary Delta, 4 which we refer to as the Delta. For too long 5 one portion of the state has been pitied 6 against the other as water users and interest 7 groups have jockeyed for position on this 8 very contentious issue. Presented before you 9 in these proceedings are imaginative and 10 ground breaking agreements, designed to 11 relieve the parties of litigation expenses 12 and at the same time make contributions 13 towards healing the Delta, as well as 14 attempting to come to some scientific 15 certainty with respect to what has caused the 16 problems in the Delta. One of those 17 agreements is the San Joaquin River 18 Agreement. This historic agreement between 19 water holders, the federal and state projects 20 and their constituencies has received some 21 support from the environmental community and 22 endorsement from the federal and state water 23 authorities relative to its proposed 24 solutions for flows, export parameters to be 25 used in the Delta and for investigating CAPITOL REPORTERS (916) 923-5447 9668 1 fishery impacts and flows and exports. The 2 entire reason for phasing these proceedings 3 was to have the opportunity to hear evidence 4 and investigate the agreements that the 5 parties have themselves negotiated in an 6 atmosphere that will allow these alliances to 7 forthrightly explain the agreements without 8 having to attack one another in the 9 traditional style of California's water 10 wars. California's best hope for resolving 11 the Delta issues in the near term rest with 12 the adoption of the San Joaquin River 13 Agreement for the San Joaquin River flows in 14 the proceeding. But unless you adopt the 15 agreement before you proceed to Phase VIII, 16 which, as we all know, is the water wars that 17 we all hope to avoid, you will not have an 18 opportunity to gauge its effectiveness as the 19 members of this alliance will be forced by 20 your procedures to begin evidentiary attacks 21 upon each other which would seriously 22 threaten, if not eliminate, the agreement 23 itself. I would urge you to adopt the San 24 Joaquin River Agreement at the end of our 25 proceedings before you and before we begin CAPITOL REPORTERS (916) 923-5447 9669 1 Phase VIII. It is the only thing that really 2 makes sense. 3 Sincerely, Gary A. Condit. (Reading.) 4 C.O. STUBCHAER: Thank you, Mr. Cardoza. 5 Any questions of the Assemblyman? 6 Thank you for your appearance. You are welcome 7 anytime. 8 ASSEMBLYMAN CARDOZA: Thank you. 9 MR. ROBBINS: Senator Dick Monteith is also here to 10 make a presentation. 11 C.O. STUBCHAER: Good afternoon, and welcome to you, 12 Senator. 13 SENATOR MONTEITH: Thank you very much. Representing 14 the 12th Senate District, which includes portions of San 15 Joaquin County, all of Stanislaus County, all of Merced 16 County, 80 percent of Madera County, part of Fresno County, 17 all of Mariposa and Tuolumne. So there is a slight vested 18 interest. 19 Good afternoon, Chairman and Members of the Board. I 20 wish to thank you for the opportunity to appear before you 21 today. 22 I came to you before to express my support for the San 23 Joaquin River Agreement. And let me assure you that I 24 continue to believe this is a fair and an even-handed 25 approach to the Bay-Delta issue. But I am here today CAPITOL REPORTERS (916) 923-5447 9670 1 specifically to encourage you to issue an order accepting 2 the San Joaquin River Agreement before beginning Phase VIII. 3 I know that you are already aware when it comes to the 4 issue of water rights all elements are there to start the 5 water war you have been working so hard to avoid. That is 6 why I believe that you risk losing the agreement entirely if 7 you enter Phase VIII before adopting the agreement. 8 You should have enough information to make a decision 9 by the end of Phase VII. I know it will be a tough 10 decision. But I encourage you to adopt the agreement before 11 Phase VIII. 12 Thank you very much. 13 C.O. STUBCHAER: Thank you, Senator. 14 Any questions of the senator? 15 SENATOR MONTEITH: Thank you kindly. 16 C.O. STUBCHAER: You're welcome. 17 MR. ROBBINS: Carol Mapes from Senator Poochigian's 18 office will be with us later. Unfortunately, she has been 19 held up. I will alert the Chair when she comes into the 20 hearing room. 21 I also have a letter addressed to the Chair from 22 Senator Costa which he desired to be read into the record, 23 if I can deliver it to the Chair. 24 C.O. STUBCHAER: Please. You want me to read it into 25 record, or do you want to read it? CAPITOL REPORTERS (916) 923-5447 9671 1 MR. ROBBINS: However the Chair wishes. 2 C.O. STUBCHAER: Rather than me testify, I will let you 3 do it. 4 MR. ROBBINS: This letter is addressed to Mr. 5 Stubchaer and Members of the Board: 6 I write today to again express my strong 7 support for the San Joaquin River 8 Agreement and to urge you to adopt the 9 agreement as the means by which water users 10 in the San Joaquin River Basin satisfy their 11 flow-related obligations under the Board's 12 1995 Water Quality Control Plan. I also urge 13 you to issue an order adopting the San 14 Joaquin River Agreement before proceeding to 15 Phase VIII of your pending water rights 16 proceeding. As the Board is well aware, the 17 San Joaquin River Agreement represents an 18 extraordinary accomplishment, bringing 19 together an unprecedented coalition of water 20 interests from throughout the state. As I 21 told the Board when I appeared before you 22 last summer to support the river agreement, 23 the consensus approach of the river agreement 24 should be supported and encouraged. The 25 Board now has a unique opportunity to do just CAPITOL REPORTERS (916) 923-5447 9672 1 that by approving the agreement at the 2 conclusion of Phase II-A. Unfortunately, 3 failing to adopt the river agreement before 4 pitting the parties to the agreement against 5 each other in the fully contested Phase VIII 6 will jeopardize both the river agreement 7 itself and the cooperative spirit it embodies 8 to the detriment of all. It is, therefore, 9 important that the Board proceed with the 10 adoption and implementation of the San 11 Joaquin River Agreement before Phase VIII is 12 noticed or undertaken. To be sure, that the 13 San Joaquin River Agreement does not address 14 all the issues in the Delta. No one document 15 or program can do all of that. And the 16 agreement was never intended to be a 17 comprehensive solution to the myriad of 18 complex problems confronting the Delta. 19 However, the San Joaquin River Agreement 20 takes us an enormous step forward and will 21 serve as the platform from which further 22 actions can proceed. The river agreement 23 facilitates CalFed, implementation of the 24 Central Valley Project Improvement Act and a 25 host of other initiatives, when taken CAPITOL REPORTERS (916) 923-5447 9673 1 together, offer us the greatest hope of 2 addressing the Delta in a comprehensive and 3 fair way to help ensure a safe and reliable 4 water supply for the entire state. I am 5 aware of the concerns expressed by some about 6 the San Joaquin River Agreement. The 7 agreement, however, is not the end. It is 8 one step. Just as it will form the basis for 9 other Delta related improvement activities, 10 it can and should be the basis for moving 11 forward to address these other concerns. 12 Even the critics of the San Joaquin River 13 Agreement acknowledge that the agreement does 14 not harm them. It simply does not address 15 all of the issues they would like resolved. 16 By adopting the San Joaquin River Agreement 17 the Board will clear the way to move forward 18 in a constructive way to further and still 19 broader consensus on other Delta issues. The 20 San Joaquin River Agreement offers water and 21 cooperation to the Delta. I hope you will 22 join me and a great many of my colleagues in 23 the Legislature in supporting the San Joaquin 24 River Agreement and all that it represents. I 25 look forward to working with the Board and CAPITOL REPORTERS (916) 923-5447 9674 1 the San Joaquin River Agreement proponents to 2 ensure the success of the San Joaquin River 3 Agreement. (Reading.) 4 Signed, Sincerely, Jim Costa, Chairman. 5 C.O. STUBCHAER: Thank you for reading the letter into 6 the record, Mr. Robbins. 7 MR. ROBBINS: I will alert the Chair as soon as we 8 have any further representation. 9 Thank you, sir. 10 C.O. STUBCHAER: Thank you. 11 We have 13 requests to speak in this workshop. 12 Are there any additional requests from parties who did 13 not identify themselves previously? 14 MR. LILLY: Mr. Stubchaer, Alan Lilly. I just got here 15 and I would like to be added to the list. I will file out a 16 blue card. Sorry for being late. 17 C.O. STUBCHAER: You don't need to fill out a blue 18 card. We already have them. 19 C.O. STUBCHAER: The order of presentation -- first of 20 all, we are going to have ten minutes per presenter, and 21 then that will save about half an hour at the end for 22 discussion. 23 And so the first presenter will be Mr. Lilly, and he 24 will -- you don't need to blush. We have to get set up. 25 MR. LILLY: I have already run out my ten minutes? CAPITOL REPORTERS (916) 923-5447 9675 1 C.O. STUBCHAER: No. We are setting up. 2 The order will be Mr. Lilly, Ms. Koehler, Mr. O'Brien 3 or Aladjem, Mr. Nomellini, Mr. Maddow/Hasencamp, Mr. Schulz, 4 Mr. Etheridge, Mr. Herrick, Mr. O'Laughlin, Mr. Suyeyasu, 5 Mr. Brandt, Mr. Jackson, Ms. Zolezzi and Mr. Sandino. 6 Please proceed, Mr. Lilly. Good afternoon. 7 MR. LILLY: Thank you, Mr. Stubchaer. 8 For the record my name is Alan Lilly from Bartkiewicz, 9 Kronick & Shanahan in Sacramento, and I am appearing here on 10 behalf of the Yolo County Flood Control and Water 11 Conservation District whom I represented during Phase IV of 12 these proceedings several months ago. 13 As you know, I have also filled appearances and will be 14 appearing in later phases for other clients, but so far Yolo 15 is the only entity that I appeared for. These comments are 16 officially on behalf of Yolo. 17 We recommend that the Board follow the following 18 sequence for its procedures here, and I am sure many of the 19 other speakers will go into much more detail than I will. 20 Very simply, we recommend that the Board first complete 21 its hearing on Phases II-A, VI and VII. 22 Second, complete and certify an adequate final 23 Environmental Impact Report following the prior draft. And 24 I know the issue has come up as to whether or not a 25 preferred alternative should be listed, and, if so, does CAPITOL REPORTERS (916) 923-5447 9676 1 that indicate a prejudging of the Board's decision-making 2 process. Frankly, it is permissible and totally appropriate 3 under CEQA to have a final EIR without any preferred 4 alternative. And that obviously is the procedure that 5 should be followed here, so there would be no indication of 6 a predetermination for any Phase VIII hearing issues. 7 After the final EIR is certified, we recommend that the 8 Board adopt a decision on the issues that were raised in 9 Phases II through VII, with our understanding being that the 10 Board's order from late last year already has covered Phase 11 I. Frankly, the major purpose for having the phased hearing 12 process was so issues could be resolved and decided, and so 13 that the big water right hearing that is set for Phase VIII 14 could be narrowed, hopefully, narrowed in terms of issues 15 and also narrowed in terms of parties. That advantage, that 16 efficiency, both for the Board, for the staff and for all 17 the parties involved, will largely be lost if there is no 18 decision on Phases II through VII before Phase VIII starts. 19 After that decision has been issued, then the logical 20 follow-up to the process would be for the Board to issue its 21 notice for Phase VIII, and, obviously, there might be, and 22 hopefully would be, some narrowing of the issues from those 23 that were previously listed for Phase VIII, based on the 24 Board's decision for Phases I through VII. The, of course, 25 the final step in the process, which will be a long step, CAPITOL REPORTERS (916) 923-5447 9677 1 but hopefully will be shortened by this, would be to hold 2 the hearing and issue a decision on Phase VIII. 3 I know that the Board Members and staff have previously 4 expressed concerns about CEQA, which, obviously, this Board 5 must fully comply with, and this procedure would allow the 6 Board to have full compliance with CEQA without, as I 7 mentioned before, prejudicing or prejudging any of the Phase 8 VIII issues. 9 I just want to mention, and I don't know whether today 10 is the appropriate time, but if it is not, Mr. Stubchaer can 11 certainly let me know, we did receive Mr. Nomellini's motion 12 a few days ago, which, I think, addresses some of the same 13 issues for decision-making process. 14 Should I not respond to that? 15 C.O. STUBCHAER: Time-out. 16 (Discussion held off the record.) 17 C.O. STUBCHAER: Let's defer that. 18 MR. LILLY: Mr. O'Laughlin just informed me that 19 you've had a briefing schedule, and I only had a ten-second 20 comment, but I will save it for the briefing. 21 So, with that, I will close, and just say again: we 22 advocate very strongly, as many parties did, that the Board 23 hold the phased hearing process. And the Board followed up 24 on that request. I think, frankly, it has been a much more 25 efficient way of proceeding, instead of having a CAPITOL REPORTERS (916) 923-5447 9678 1 free-for-all on all the issues that are before the Board. 2 The logical extension for that efficiency to go forward is 3 to have a phased decision-making process on the phases that 4 have already been held. 5 With that I will be glad to answer any questions. 6 C.O. STUBCHAER: Thank you, Mr. Lilly. 7 Any questions for Mr. Lilly? 8 Thank you, again. 9 MR. LILLY: Thank you. 10 C.O. STUBCHAER: Ms. Koehler. While we are waiting, I 11 want to say I recognize that it will be Ms. Harrigfeld and 12 not Ms. Zolezzi. 13 Is Ms. Koehler here? 14 Mr. Aladjem. I don't know if it is a long A or a short 15 A. I am sorry if I mispronounced it. 16 MR. ALADJEM: I don't know whether it is a long A or a 17 short A, Mr. Stubchaer. It's Aladjem. 18 C.O. STUBCHAER: That is a short A. 19 MR. ALADJEM: For the record, David Aladjem, Downey, 20 Brand, Seymour & Rohwer, Sacramento. On behalf of a number 21 of Sacramento Valley water users and a number of water users 22 in the North Delta Water Agency, which you recall was the 23 subject of a settlement agreement entered into and described 24 to the Board in Phase IV. 25 I am also pleased this afternoon to be able to speak on CAPITOL REPORTERS (916) 923-5447 9679 1 behalf of two of my colleagues, Ms. Goldsmith and her 2 clients and Mr. Hitchings and his clients. 3 Water users in the Sacramento Valley and in the North 4 Delta urge the Board very strongly to adopt the phased 5 decision-making process that has been outlined both by the 6 San Joaquin River Agreement and just now by Mr. Lilly. The 7 whole process the Board has been engaged upon is designed to 8 winnow the issues down so that when and if we ever get to 9 Phase VIII the issues are narrowly defined and will require 10 the least amount of this Board's resources and parties' 11 resources. 12 Without going into great detail, because I understand 13 that will be happening later this afternoon, I would like to 14 underscore three points. First of all, nothing in CEQA, 15 nothing in the Water Code or any other governing regulations 16 that we are aware of precludes this Board from engaging in a 17 phased-decision-making process. 18 Second of all, since the adoption of the Water Quality 19 Control Plan in 1995, this Board has very strongly and 20 appropriately urged the parties to engage in settlement 21 negotiations and bring completed settlements to the Board 22 for approval. Requiring parties like North Delta Water 23 Agency, like the San Joaquin River Group's signatories to go 24 through a Phase VIII hearing, the ultimate war of all 25 against all in the water arena, after reaching those CAPITOL REPORTERS (916) 923-5447 9680 1 settlements, would undermine the Board's very strong and 2 consistent policy and, in our view, would be a mistake. 3 Lastly, by engaging in phased-decision-making, as I 4 said earlier, this Board will reduce the scope and burden of 5 Phase VIII on all parties and not least of all on yourselves 6 and your staff. We believe it is the appropriate decision, 7 and we hope that you will consider these comments. 8 Be glad to take any comments, questions. 9 C.O. STUBCHAER: Questions at this time? 10 Thank you, Mr. Aladjem. 11 MR. ALADJEM: Thank you. 12 C.O. STUBCHAER: Mr. Nomellini. 13 MR. NOMELLINI: Mr. Chairman, Members of the Board, 14 Dante John Nomellini on behalf of Central Delta Parties. 15 I know I will be the least controversial speaker in 16 this group. First of all, we strongly oppose piecemeal 17 approval of water rights settlement agreements. And there 18 is a distinction in our mind between water rights settlement 19 agreements and decisions that could bring us closer to a 20 solution. And I have kind of broken my comments down in 21 phases. 22 First of all, with regard to Phases II and IV, those 23 seek water rights settlement agreements. And the question 24 that I see is whether or not the underlying beneficial 25 objectives that may be contained, particularly in how we CAPITOL REPORTERS (916) 923-5447 9681 1 deal with the San Joaquin River, cannot be achieved unless 2 there is a water rights settlement agreement. 3 And our problem with a water rights settlement 4 agreement at this time and your approval of that is that we 5 really don't think you've defined the scope of the pie that 6 needs to be allocated. We haven't seen the analysis that we 7 think is sufficient to establish a proper environmental 8 document to embrace that total picture, and we also think it 9 is grossly unfair to begin letting people out of this thing 10 when we don't like the way you approach the subject to begin 11 with. We had suggested that we should take the state and 12 federal obligations, a cause and effect relationship, and 13 make them mitigate for what they caused as damage. Define 14 the salinity proposal obligation in the Delta. Define what 15 the responsibilities are in the Delta Protection Act, and 16 then what is left we can look elsewhere. You haven't done 17 that. It wasn't the structure from the beginning, and my 18 motion addresses trying to redirect some of that. 19 Now, let's take the San Joaquin River Agreement and 20 let's see whether or not it is necessary to go ahead and 21 settle water rights at this phase. And I am not urging that 22 we immediately jump into Phase VIII. Everyone wants to stay 23 away from Phase VIII. We have no great favor towards 24 getting into Phase VIII. 25 Now, if we take the San Joaquin River Agreement, what CAPITOL REPORTERS (916) 923-5447 9682 1 is it? It is a VAMP test to gain information about fish. 2 And there is water that is necessary to do that. It is 3 clear from the record that if the agreement didn't go 4 forward the Bureau would do their backstop thing, which has 5 holes in it bigger than I am, but they will do their 6 backstop. Get the water wherever to try and do it. 7 We think the testimony indicates, first of all, the San 8 Joaquin River Agreement people want to change the Water 9 Quality Control Plan fishery flows. They want to change 10 that. And we think in order to change that you have to go 11 back and revisit the plan. So what we suggested is that 12 there not be a water rights settlement decision at this 13 phase, but rather the triennial review is due on this plan. 14 We think that you should revisit the Water Quality Control 15 Plan in three particular areas. 16 One would be the San Joaquin River fishery flow 17 requirements. And we think what the evidence indicates is 18 that we need a test, and we should restructure that test. 19 Central Delta testimony has indicated that we think it ought 20 to be restructured so we work with the natural flow, and we 21 need more evidence to make that decision. But we think we 22 should work with the natural flow, avoid the need to release 23 from storage as much as possible. Make sure we have 24 sufficient smolts to do the test, and then if there is some 25 minimum requirements. We think you can refashion that in CAPITOL REPORTERS (916) 923-5447 9683 1 terms of a revisit to the 1995 Water Quality Control Plan, 2 which we think you are required to do. The triennial review 3 is due. So, we think it is legally mandated that you 4 revisit it. 5 We think we can address the problem that the San 6 Joaquin River Agreement tries to address in that fashion. 7 You can refashion that water quality requirement as an 8 experiment, and that could take care of what we are going to 9 do. We want to gain more information before you make more 10 final decisions, anyway. 11 Now, Suisun Marsh: There are two water quality stations 12 that the petitioners want to eliminate. To us, the right 13 way to do that would be to go back to the plan, revisit it, 14 hear the evidence. Justifies it; eliminate those 15 two. There is no water rights settlement involved in that. 16 The third area is what are you going to do with the 17 narrative standard in the 1995 Water Quality Control Plan? 18 We see a serious legal problem associated with implementing 19 the plan without the narrative standard. How do you 20 implement the narrative standard? I don't know because I 21 don't know what the water flow is. I don't know what the 22 water quality is. I don't know what the water temperature 23 is. So I think there are some good uses of our time. And I 24 think the phased approach has been beneficial in focusing 25 the discussions, and I think in the workshop that we started CAPITOL REPORTERS (916) 923-5447 9684 1 out with I made it clear that we thought the phased-decision 2 making on water rights settlement was prohibitive. We 3 didn't have an objection to the phased-approach to get at 4 the evidence. 5 Now, Phase V, San Joaquin River. We would urge that 6 decisions be made on the San Joaquin River, but not in the 7 nature of water rights settlement. We think we need a 8 standard upstream of the Merced to define the objective for 9 the water quality. And we would ask this Board to direct 10 the state and federal government to come up with a 11 comprehensive plan to address restoration of the San Joaquin 12 River. That's the nature of the order we think should come 13 out of the Board on an interim basis. That would help us 14 focus what we all know is necessary. There is more to the 15 San Joaquin River problem than fishery flow. There is a 16 water quality problem associated with it. The question is 17 how far up and down the river the public trust needs to be 18 protected. So, we would urge decision making in that 19 regard. 20 We think, also, that we can go forward with the Phases 21 VI and VII. But, again, we don't think that the water 22 rights settlements and the water rights allocation should be 23 any part of an interim decision. We think you have to 24 embrace the full scope of the evidence, the full scope of 25 the problem before you get to that. CAPITOL REPORTERS (916) 923-5447 9685 1 So, that is it in a nutshell and the only other thing I 2 would, and I put in my motion, is that, if we want to take 3 us from where we are now and you don't want to revisit what 4 the damage is that is caused by the projects or what the 5 salinity control obligation is and that kind of stuff, we 6 think it would be more meaningful to try and define instream 7 flow requirements on each of the major tributaries. Because 8 that is going to set an amount of water that is going to be 9 coming into this system that leaves in the Delta decision 10 making. But without determining that, when you approve a 11 water rights settlement agreement, you may preclude your 12 options on the individual tributaries. So we think that 13 that is meaningful, and we know you have evidentiary 14 hearings on a couple of streams already and haven't rendered 15 a decision. We can do that. 16 The last point, and I am going to sit down, is that 17 prior to Phase VIII, whenever you guys decide you want to 18 put us in that room, it would be extremely beneficial to 19 have some of these legal issues determined and flushed out: 20 The meaning of the Watershed Protection Act. Can the 21 Bureau ignore people in the watershed at the Stanislaus so 22 that they can favor exporters, other projects? Is there an 23 obligation for them to allocate water to the areas of origin 24 before they allocate it to the contractors? What is 25 salinity control in the Delta? Somebody disputed it the CAPITOL REPORTERS (916) 923-5447 9686 1 other day. I think the law is clear, but we ought to have 2 your voice on it. What is the requirement of the San 3 Joaquin River Act? Are these big changes that come before 4 you, in effect, things or applications that should be 5 treated as new applications within the policy framework of 6 the San Joaquin River Protection Act or are they just 7 automatically treated as minor amendments to old permits? 8 If we have to go forward and we can get these legal 9 issues determined by you, we can go to court and get a 10 determination so that when you do roll your sleeves up and 11 start throwing things around, at least the rules of the game 12 are defined to do it. And we are going to spend a lot of 13 money and time going through, if we ever go through a Phase 14 VIII, not knowing what the law is going to be and what it 15 comes down to the end. 16 Thank you very much. 17 C.O. STUBCHAER: Thank you, Mr. Nomellini. 18 Mr. Maddow. 19 Afternoon. 20 MR. MADDOW: Good afternoon, Chairman Stubchaer, 21 Members of the Board. I am Robert Maddow appearing on 22 behalf of Contra Costa Water District. 23 I do have a written statement, which I will give 20 24 copies of to Ms. Whitney, and, if I can impose upon Mr. 25 Schulz and Mr. Brandt, I will hand some of these out to CAPITOL REPORTERS (916) 923-5447 9687 1 people in the audience who might be interested. I do not 2 intend to read that whole statement. I don't believe my 3 voice will hold out. I would like to make just a couple 4 summary comments. 5 In the first place, from the standpoint of the conduct 6 of this workshop, this is one of the times when, from my 7 perspective and the perspective of the water district, it 8 would have been useful for us to have had a staff 9 presentation prior to the time you heard from the parties. 10 Because I for one and the water district as one party would 11 like to know how your staff view some of these same issues. 12 We recognize that that might not be precisely consistent 13 with the practice you have been following with workshops in 14 some of these matters, but this particular time I think we 15 could have benefited by hearing from your staff. 16 The statement I have just submitted, in essence, 17 includes a qualified yes answer to the questions to Issues 1 18 and 3, and a qualified yes to the first part of Issue Number 19 2. And as I say, I am not going to cover the entire thing 20 and repeat it all. I would like to make a couple of 21 comments by way of summary. 22 There are some decisions that Contra Costa Water 23 District thinks that you can make prior to the conclusion of 24 the hearing, prior to the time we get to Phase VIII. There 25 are some others where you may not be able to make the CAPITOL REPORTERS (916) 923-5447 9688 1 decision, and there are some that may be -- where you may 2 have to make a decision in a qualified or conditional 3 manner. 4 We endorse the comments of Mr. Lilly and others who 5 have expressed what we have been hearing from the beginning 6 about the benefits of phasing. Perhaps some issues can be 7 taken off the table. Perhaps some parties will be able to 8 determine they need not participate in Phase VIII. 9 We believe that there are a number of decisions you 10 have made already that really in a sense constitute interim 11 or phased-decisions. You made one in a sense in Phase I. 12 We all knew that was different than Phases II through VII, 13 but it was, in fact, a sort of interim or preliminary 14 decision made on a phased-basis. In a sense you made one at 15 the end of Phase II when you started Phase II-A when you 16 said there would be a Phase II-A. And we thought that that 17 was an appropriate decision to have made at that stage. 18 The critical issue that we were interested in in Phase 19 II was whether the operations of the parties jointly 20 proposing the San Joaquin River Agreement would provide an 21 equivalent level of protection for the Bay-Delta beneficial 22 uses as we have seen in the Vernalis objectives from 1995 23 Water Quality Control Plan. We thought at the conclusion of 24 Phase II that the Board made an interim decision. In a 25 sense we see that as a phased or interim decision. CAPITOL REPORTERS (916) 923-5447 9689 1 Phase II-A and Phases III and IV go to what we have 2 been calling the settlement agreements. II-A is little 3 different than the agreements you have seen in III and IV, 4 in that II-A is a temporary decision, if you will, if you 5 should make it, an agreement that has a 12-year life. But 6 we think you can make a decision at the end of II-A that 7 would, in fact, give some certainty to the parties for that 8 period of time that that agreement will be effective. We 9 think in order to make that decision that you have to 10 conclude that the proponents of the San Joaquin River 11 Agreement will provide all flow necessary to meet the 12 Bay-Delta responsibilities. And when I say "all the flow," 13 I mean the flow that would come from the local agencies that 14 are participants in that agreement and the backstop flows 15 that would come from Central Valley Project and State Water 16 Project. 17 In other words, to the extent that the Board would have 18 gotten to the end of the unphased hearing, selected a flow 19 alternative, assigned responsibilities to the proponents of 20 the San Joaquin River Agreement, in effect, what we are 21 saying is at the end of Phase II-A you have to say that kind 22 of allocation of responsibility occurs through the adoption 23 of the decision at the end of Phase II-A, and for the 24 duration of Phase II-A we would all have certainty that that 25 slice of the Bay-Delta objectives would be met by virtue of CAPITOL REPORTERS (916) 923-5447 9690 1 the II-A decision. 2 We think that you can do that. We think that the 3 evidence is going to permit you to make that kind of 4 decision. It is going to take some hard work by the Board 5 to fashion that type of decision, but we think it is 6 possible and we think that is one of the advantages of 7 phasing. 8 In Phases III and IV we think the same kind of criteria 9 need to applied. As we indicated during those phases, our 10 concern is that the settlement agreement which would at 11 least potentially relieve a party of further Bay-Delta 12 obligations can only be approved if it is fully backstopped. 13 In other words, if the parties who are proposing the 14 agreement are not going to provide that full slice of 15 allocated responsibilities that they would otherwise get, 16 there needs to be somebody who is going to provide it. 17 We saw that there is somebody who is willing to step up 18 to the mark in the full backstop provisions of the San 19 Joaquin River Agreement; we're not sure that is true of all 20 the agreements in Phases III and IV. We think that Phase V 21 is also a tricky one. But we believe that it may be 22 possible to make an early decision in Phase V if the Board 23 can conclude that the full range of responsibilities for 24 dealing with dissolved oxygen and salinity in the Southern 25 Delta are identified and fully analyzed and allocated to CAPITOL REPORTERS (916) 923-5447 9691 1 appropriate parties as a result of the evidence received in 2 the process conducted throughout Phase V. 3 There are a number of environmental documents that have 4 been presented. They provide a sufficient CEQA basis for 5 action. We think that you may be able to decide at least 6 some portions of the allocations of responsibility for DO 7 and salinity through Phase V, and, therefore, we believe 8 that there is at least a possibility that an interim 9 decision can also be made there. 10 There may be some, I guess I would call them, spatial 11 in the sense of locational or temporal in the sense of the 12 timing of releases and discharges that may give you some 13 opportunities to make decisions that would affect some of 14 the parties who might be affected by the Phase V issues. 15 Might be able to make a partial interim decision if you 16 conclude that you can't cover all of the issues, all of the 17 beneficial uses that are at issue in Phase V. 18 Phases VI and VII we agree I think with what I heard 19 Mr. Nomellini say a moment ago. Those really began as 20 separate issues from the Bay-Delta proceeding, and were 21 consolidated with it. They have separate environmental 22 documentation. We think they could be the subject of 23 separate and phased decisions, and we're saying that without 24 having heard the evidence in those proceedings. But we 25 think that they are well set up for at least the potential CAPITOL REPORTERS (916) 923-5447 9692 1 of an interim or phased decision. 2 Finally, we are concerned about Section 1126 of the 3 Water Code which was raised in one of your issues. The 4 reason for attempting -- one of the reasons why we were 5 attempting to use a phased approach was to give some 6 finality to some people so that they might not have to 7 participate in Phase VIII or to resolve some issues with a 8 sufficient degree of finality so that those issues wouldn't 9 have to be dealt with in Phase VIII. 10 We think that there is a risk that that degree of 11 finality is enough to trigger the possibility of judicial 12 review under Water Code Section 1126. We haven't fully 13 briefed the issue. I understand you are going to allow 14 briefs to be submitted by March 1st. I suspect you are 15 going to be hearing a lot about that. 16 One possibility, I suppose, is that if such litigation 17 should be started in regard to any of the phased or interim 18 decisions that you might be making, perhaps there could be 19 some way to stay some proceedings until we have, in fact, 20 reached the end of the process so that we don't find 21 ourselves chasing down a litigation alley while we are still 22 trying to proceed with the balance of the proceeding. I 23 think that is an appropriate issue for the briefs, and I 24 appreciate the fact that you have called for that. 25 That concludes my statement. I would be happy to take CAPITOL REPORTERS (916) 923-5447 9693 1 any questions. 2 C.O. STUBCHAER: Thank you, Mr. Maddow. 3 Any questions for Mr. Maddow? 4 MR. MADDOW: Thank you, Mr. Stubchaer. 5 C.O. STUBCHAER: Did Ms. Koehler arrive yet? 6 Mr. Schulz it is. Afternoon. 7 MR. SCHULZ: Afternoon, Mr. Stubchaer, Members of the 8 Board. I am Cliff Schulz. I am appearing here today on 9 behalf of the State Water Contractors. There are written 10 copies of my statement, a couple on this front table and 11 more outside for those who haven't gotten a copy yet. 12 State Water Contractors represents 27 public agencies 13 that receive water supplies from the State Water Project. I 14 will be responding to the three issues contained in your 15 hearing notice. 16 Issue one, concerning whether you should issue phased 17 decisions: The contractors' short answer to this question 18 for two primary reasons is yes. First, we believe that such 19 an approach may actually shorten the time needed to complete 20 all phases of the hearing. 21 But second, more importantly, we believe such approach 22 makes good policy sense as it will protect the settlement 23 process, which is critical to the San Joaquin River 24 Agreement and other settlement proposals that are now before 25 you. CAPITOL REPORTERS (916) 923-5447 9694 1 We recommend that the evidentiary hearings continue and 2 until all testimony on Phases II through VII is completed. 3 At that point the Board should establish a briefing 4 scheduled. We would recommend simultaneous opening and 5 closing briefs, and the parties would brief all issues 6 related to those six phases. You will note that we are 7 recommending that the State Board issue a decision or 8 decisions on all completed phases at that time. While the 9 State Board could limit its decision to Phases II and IV, 10 the ones most directly related to what will happen in Phase 11 VIII, it seems to us more efficient to deal with all the 12 completed phases at one time. 13 While the parties are preparing their briefs, and 14 because State Board staff won't have to attend these 15 hearings, they could complete the necessary work on the 16 Draft EIR so it could be certified as final before the Board 17 issues a decision on Phases II through VII. 18 I will deal in more depth with the legal matter related 19 to CEQA in response to issue two. With the final EIR 20 certified, the State Board will then be able to issue a 21 decision or decisions on the various phases. And at the 22 time that the decisions are entered, notices to Phase VIII 23 could also be issued and the final stage of the hearings 24 would commence. 25 As an aside, we believe that at least one workshop CAPITOL REPORTERS (916) 923-5447 9695 1 should proceed noticing commencement of Phase VIII, and 2 careful attention to the structure of that phase will be 3 needed to avoid a free-for-all. 4 The State Water Contractors believe there are several 5 important reasons why a process just described should be 6 followed. The key impetus behind the intense effort that 7 lead to the San Joaquin River Agreement was the desire to 8 avoid a bitter adjudicatory battle over the San Joaquin 9 River water users' obligations to contribute to outflow 10 Delta obligations. 11 If Phase VIII is begun before a Phase II decision is 12 issued, that opportunity could be lost and with it the 13 settlement agreement. In addition, discreet issues, such as 14 joint point Suisun Marsh standards deserves prompt 15 attention. Joint point is important in the CalFed process 16 and clarification of marsh obligations is definitely due. 17 The State Contractors do not believe that any measurable 18 delay would result if the State Board follows the process I 19 just described. 20 If San Joaquin River issues are included in Phase VIII, 21 that phase will be lengthened substantially. Certainly, it 22 could take a month or more of direct and cross and rebuttal 23 to hear all the testimony by the San Joaquin Group members 24 themselves, much less all the other parties. Testimony 25 which would not be needed if -- to be considered if the CAPITOL REPORTERS (916) 923-5447 9696 1 settlement agreements were approved. The State Water 2 Contractors, therefore, cannot see a significant downside to 3 our suggested process and urge the Board to proceed as 4 proposed in this statement. 5 Issue Number 2 involves the legal machinations that you 6 would have to go through. The State Board has broad 7 authority to hold hearings and investigations, and we've 8 searched the statute, your regulations, and really can't 9 find anything in either direction on this. We think it's 10 fairly clear that you do have the ability to issue a series 11 of decisions out of this hearing, rather than just a single 12 decision. And, thus, we believe that the only legal 13 question requiring in-depth consideration is how to comply 14 with CEQA. 15 The State Water Contractors recognizes the State Board 16 must complete and certify a final EIR before it can approve 17 a decision or decisions on Phases II through VII. That is 18 why we propose that while all the parties are filing their 19 closing briefs, the State Board staff complete the responses 20 to comments on the Draft EIR. We recognize that the FEIR 21 will also contain information that is only relevant to the 22 Phase VIII hearing. That is consistent with both CEQA 23 statute and its guidelines. 24 The guidelines define the term "project" as follows: 25 The term "project" refers to an activity which is being CAPITOL REPORTERS (916) 923-5447 9697 1 approved and which may be subject to several discretionary 2 approvals by governmental agencies. The term "project" does 3 not mean each separate governmental approval. This language 4 contemplates that a decision-making body may take several 5 discretionary actions as part of an overall project. 6 Before taking the first of those actions, however, the 7 decision maker must complete an EIR. It follows, therefore, 8 the decision maker may also rely on the earlier certified 9 FEIR to support subsequent discretionary approvals that are 10 part of the same project. The CEQA guidelines also provides 11 for the contingency that new environmental information 12 relevant to Phase VIII decision may surface after the Final 13 EIR is certified. Sections 15162, 163 and 164 provide the 14 mechanisms to supplement an FEIR after certification. These 15 processes would be available to the State Board if needed, 16 the same as in any other CEQA situation. 17 The State Contractors have no doubt that the State 18 Board has full substantive power to adopt a decision or 19 decisions on Phases II through VII before beginning Phase 20 VIII, and the CEQA includes the needed procedural mechanisms 21 to do so. Therefore, we urge the Board to proceed in the 22 manner outlined above to ensure that important settlement 23 agreements are not lost in the dust of a possible bitter 24 Phase VIII. 25 The third issue relating to Water Code Section 1126, CAPITOL REPORTERS (916) 923-5447 9698 1 the State Water Contractors are not aware of any mechanism 2 other than agreement of all parties to toll the time limits 3 for challenging a State Board order relating to Phases II 4 through VII or for challenging the FEIR under CEQA. Indeed, 5 even if a petition for reconsideration of the underlying 6 decision does not toll the CEQA statute of limitations. 7 If lawsuits are filed, the parties could stipulate to a 8 stay of the legal proceeding until Phase VIII is completed. 9 But such stipulation is by no means a certainty. We, 10 nonetheless, believe that the Board should proceed as we 11 have suggested. Litigation on the various phases of the 12 hearings appears inevitable. The timing of those lawsuits, 13 in our opinion, should not be allowed to impact the issuance 14 of a decision or decisions prior to Phase VIII, if issuance 15 of such a decision is otherwise appropriate. 16 For the reasons stated above, we believe that such 17 issuance of decisions prior to Phase VIII is appropriate. 18 We appreciate the State Board's consideration of our 19 suggestions, and would be happy to answer any questions. 20 And as a final item, Mr. Birmingham has authorized me to 21 state that the Westlands Water District and the San Luis 22 Delta-Mendota Water Authority join in these comments. 23 C.O. STUBCHAER: Thank you, Mr. Schulz. 24 Any questions? 25 Mr. Del Piero. CAPITOL REPORTERS (916) 923-5447 9699 1 MEMBER DEL PIERO: Mr. Schulz, thank you for appearing 2 today and for characterizing the CEQA dilemma that the Board 3 faces. The question I have for you deals with the 4 requirement for the CEQA guidelines. The CEQA guidelines 5 indicate that in the event a project is characterized as a 6 programmatic environmental impact report, the guidelines 7 mandate the maximum possible review of potential 8 alternatives for decision and quotes the earliest possible 9 time. That is the exact language out of the guidelines. 10 Can you explain to me what the thoughts of the 11 contractors has been in terms of dealing with the very 12 potential, very real possibility, I guess, of Phase VIII? I 13 think you at least touched on it by your tacit 14 acknowledgement that the Environmental Impact Report might 15 not be complete as to dealing with the water rights issue 16 that would be addressed as part of Phase VIII. What is your 17 client's recommendation as to how our Board avoids what may, 18 in fact, be a fatal flaw in terms of that process, given 19 what you have recommended we do? 20 MR. SCHULZ: I think implicit in an EIR that is 21 somewhat programmatic in nature, there is always the chance 22 and the guidelines recognize there is a chance, that a 23 supplemental document, another tiered document, would be 24 necessary to carry out an action after the programmatic is 25 finalized and certified. I think as long as you carry out, CAPITOL REPORTERS (916) 923-5447 9700 1 do your best efforts to recognize and analyze the 2 alternatives at the time that you issue the first of the 3 EIRs and as long as you do, in fact, prepare a supplemental 4 that turns out that you haven't gotten anything after the 5 testimony is through, that you're okay under CEQA. Because 6 if that weren't the case, you could never have a 7 programmatic EIR that wasn't subject to challenge if you 8 found out later that in order to carry out one element of 9 the actual program you needed to do a second tier EIR. 10 MEMBER DEL PIERO: I understand that point. My concern 11 is the potential identification -- in the event this process 12 goes forward pursuant to the recommendation of your clients, 13 then, in fact, your response may be a fair characterization 14 of what ultimately happens. Alternatively, however, the 15 Board is obligated to evaluate all the alternatives as part 16 of the CEQA process. 17 Alternatively, if we don't follow the advice of your 18 staff, pardon me, of your client, and the Board were to 19 ultimately end up going to Phase VIII, how do you resolve 20 the potential conflict problem that then exists as 21 inadequacy of the Environmental Impact Report if the 22 potential modifications to the water rights that are 23 possible in Phase VIII were not properly addressed? 24 MR SCHULZ: I think that if they were addressed 25 adequately through the original EIR and any supplement CAPITOL REPORTERS (916) 923-5447 9701 1 document, you would be okay. 2 MEMBER DEL PIERO: That supplement document would be 3 probably produced when? Prior to or after decision on 4 Phases I through VII? 5 MR. SCHULZ: After decision on Phases I through VII, 6 but before a decision on Phase VIII. 7 MEMBER DEL PIERO: Can you explain to me how this Board 8 can properly say that it has evaluated all the alternatives 9 if it waits until after it has rendered a decision to 10 evaluate the alternatives? 11 MR. SCHULZ: But it will not have rendered a decision 12 on Phase VIII at the time. It would have to certify -- we 13 are assuming that new information comes up in Phase VIII 14 that would make the alternatives discussed in the originally 15 certified FEIR not adequate for a Phase VIII decision. 16 MEMBER DEL PIERO: That has happened in all seven of 17 the phases. So, that is why I am asking that question. 18 C.O. STUBCHAER: Could I suggest that Mr. Schulz -- 19 MR. SCHULZ: Will be happy to address this in a written 20 brief. 21 MEMBER DEL PIERO: That is fine. 22 C.O. STUBCHAER: So we can proceed. 23 MEMBER DEL PIERO: Sure. 24 C.O. STUBCHAER: Good question. 25 Thank you, Mr. Schulz. CAPITOL REPORTERS (916) 923-5447 9702 1 Mr. Etheridge. 2 MR. ETHERIDGE: Good afternoon, Mr. Stubchaer and 3 Board. For the record I am Fred Etheridge from the East Bay 4 Municipal Utility District, EBMUD for short. 5 The district supports the State Board's making 6 determinations on the various settlements that have been 7 presented to you in Phases I through VII. Prior to the 8 initiation of Phase VIII, the Board should first certify its 9 Final EIR and then proceed to making its determination on 10 those various settlements that have been presented to you in 11 Phases I through VII. 12 That is what we believe the State Board should do. Let 13 me tell you a little bit as to why we think that should be 14 done. Earlier in this proceeding the workshops the State 15 Board held prior to the issue of a hearing notice, the State 16 Board encouraged parties to settle. In a subsequent hearing 17 notice the Board acted consistently with that approach and 18 phased the hearings so it could hear settlements in the 19 early phases of the hearing, putting off until, what I call, 20 the catchall Phase VIII, all parties who either did not 21 reach settlement or whose settlements were not approved 22 previously by the Board. 23 EBMUD took that encouragement to heart and entered into 24 settlement negotiations, and you saw it in Phase IV of this 25 proceeding, and 11 detailed exhibits through seven expert CAPITOL REPORTERS (916) 923-5447 9703 1 witnesses in support of EBMUD's settlement. If the Board 2 were to defer or put off deciding on the settlements in 3 Phases I through VII until after or during Phase VIII, then 4 all the settling parties, those who put the time, resources 5 and effort into reaching settlements in the first place 6 wouldn't know the results of their settlements, so they 7 would have to decide whether they should also participate in 8 Phase VIII. So there would be a sense of duplication of 9 resources and may have viewed their -- wasted some of their 10 resources they put in to Phases II, III, IV, V, VI and VII 11 in the first place. 12 California civil courts have a process for this 13 situation. It is called a motion to confirm good-faith 14 settlement. When you have a complex litigation with 15 multiple defendants and multiple plaintiffs, if some of the 16 defendants reach settlement, they can, before trial, go to 17 the trial court before the trial judge and have their 18 settlement approved. And that is essentially a parallel 19 analogy of what we are asking here, is that all the settling 20 parties, not just East Bay, all the settling parties in 21 Phases I through VII have an opportunity for this Board to 22 hear and pass upon those settlements prior to the trial. By 23 trial I mean Phase VIII in this hearing. 24 So, in conclusion, we do support the State Board making 25 its determination on the various settlements. The State CAPITOL REPORTERS (916) 923-5447 9704 1 Board first needs to certify its Final EIR and then make 2 those determinations on the settlements, and that the State 3 Board determinations on the settlements should occur prior 4 to any deadline for submission of evidence in Phase VIII so 5 that all the parties in the numerous settlements that have 6 been presented to you will know where they stand and what 7 they need to do in Phase VIII, whether they need to 8 participate and how they need to prepare. 9 That ends my prepared remarks. I wanted to perhaps 10 stray a bit which is also dangerous. But these are just 11 observations on settlement. 12 It seems to me that it is always easier to tear apart a 13 settlement than it is to negotiate one in the first place. 14 I think that is true of settlement agreements, other types 15 of agreements, governmental programs. It always seems to be 16 easier to attack, to throw stones and to try to take 17 something down than it is to act proactively and put 18 together in the first place. I think this proceeding. 19 Given the number of parties, you have over 200 parties to 20 this proceeding, given the vast variety of interest in this 21 proceeding, it is very easy for a settlement to attract 22 opposition. In fact, I think it would almost be the rule 23 rather than exception, just given the complexity of the 24 hearing. So, I think when you do look at settlements, 25 whenever you decide to do so, the question should not be CAPITOL REPORTERS (916) 923-5447 9705 1 whether a given settlement is perfect or whether it has any 2 opposition. But rather it should be whether the given 3 settlement is reasonable. Is it reasonable for the parties 4 and the river system in question? 5 That is all I have. Any questions? 6 C.O. STUBCHAER: Thank you, Mr. Etheridge. 7 Questions? 8 Ms. Leidigh. 9 MS. LEIDIGH: I have a question. Perhaps you would 10 like to brief this when you file a brief, if you decide to 11 file a brief. 12 You talked about a procedure in court for confirming 13 good-faith settlements. 14 MR. ETHERIDGE: Right. 15 MS. LEIDIGH: In those cases my impression is that all 16 of the parties who have an interest in the issue are part of 17 the settlement agreement. In this case it does not appear 18 to me that that is the situation. And I would like to hear 19 more about your theory on this. 20 MR. ETHERIDGE: We can certainly address that in the 21 brief. But I have taken part in several motions to confirm 22 good faith settlement in California trial court where there 23 is multiple defendants, suppose 15 defendants. Three 24 defendants reach a settlement. Those three defendants go 25 before the trial court and argue why their settlement is CAPITOL REPORTERS (916) 923-5447 9706 1 appropriate and the reason it should be accepted by the 2 court, why they should, therefore, be dismissed from the 3 case. 4 The other defendants can oppose that, which is 5 essentially what you are getting, you heard argument 6 about, and the trial court makes a decision. 7 MS. LEIDIGH: There is another little wrinkle here, and 8 that is a settlement procedure in the Administrative 9 Procedures Act. Could you address that as well? 10 MR. ETHERIDGE: Sure, be happy to, in our briefs. 11 C.O. STUBCHAER: Thank you for raising that issue, Mr. 12 Etheridge. 13 Mr. Herrick. Afternoon. 14 MR. HERRICK: Thank you, Mr. Chairman, Board Members. 15 John Herrick for South Delta Water Agency. 16 We would like to join in the comments of Central 17 Delta, and hopefully I won't take anywhere near my time up. 18 I will try to brief. 19 The first question is: Should you adopt a decision 20 before the conclusion of the hearings? That depends on what 21 phase you are talking about, in our opinion. Phase V dealt 22 with the San Joaquin River salinity issue and interior Delta 23 standards. The record is complete on that, and we believe 24 you can act on those matters. We've already expressed how 25 you should act. But you have a record that shows what you CAPITOL REPORTERS (916) 923-5447 9707 1 know the problem is and you know how to address the problem. 2 You know who is responsible for the problem, and you know 3 what the Regional Board is not going to do. So we think 4 that is perfectly appropriate. 5 The more important question is whether or not you 6 should make rules on settlement agreements, including the 7 San Joaquin River Agreement. 8 We obviously strongly believe no. The San Joaquin 9 River Agreement is a 120-year insulation of some of the 10 parties from further responsibility downstream. However, 11 there has been no presentation as to how that responsibility 12 is backstopped or guaranteed. We don't believe you can 13 legally adopt an implementation plan for the Water Quality 14 Control Plan that won't meet the Water Quality Control Plan 15 objectives. There is no purpose in adopting it if you are 16 not going to meet the objectives. 17 A good example of this is what happens if the narrative 18 standard, which you are going to address later, requires 19 flows? You've already exempted certain parties from that in 20 the 12-year period. 21 That leads to the second question, whether it is legal 22 or not to do such a thing. We also believe the answer to 23 that is no. This gets to the piecemeal decision process 24 that would be used for IV, II and II-A. 25 I think we should all remember what phases we have gone CAPITOL REPORTERS (916) 923-5447 9708 1 through. The Board decided to have phases II, II-A and 2 possibly VIII, and it stated that in those phases it will 3 hear some, and then some more and maybe some more 4 evidentiary evidence on those topics of those hearings. And 5 what that translates into is you have heard evidence 6 examining one alternative, the San Joaquin River Agreement 7 in II, and then you heard some evidence examining the San 8 Joaquin River Agreement in comparison to the other 9 alternatives. And you don't know whether you are going to 10 hear evidence examining the other alternatives amongst 11 themselves. 12 In our opinion, then, that leaves you with an 13 incomplete evidentiary record and a failure to comply to 14 CEQA's mandates. 15 Beyond that point, we believe that it is important to 16 note that the proponents of the agreement didn't put on a 17 case in II-A, which is supposed to compare it to other 18 alternatives. This isn't a trial. There isn't necessarily 19 a burden on the proponents to meet some standard. But the 20 failure to present that evidence leaves this phase 21 incomplete, I believe, as a record to reply on. 22 We have heard all the parties talk about the fact that 23 there is a consensus and the Board encouraged the parties to 24 act and to reach agreements. We also have heard that one of 25 these alternatives doesn't harm other people. We know that CAPITOL REPORTERS (916) 923-5447 9709 1 is not true. It certainly harms the South Delta Water 2 Agency. There is no doubt about that. The thrust of the 3 testimony in four phases showed that. You might -- people 4 might disagree that that was conclusive or not, but you 5 can't say that there is no issue there, or that it's been 6 decided against us. 7 I am happy that counsel asked this question about the 8 settlement. There is something missing from this 9 calculation. When you have a settlement agreement, you 10 settle with the plaintiff. Now there isn't a plaintiff in 11 these proceedings, but who is being harmed if the standards 12 of the Water Quality Control Plan aren't met? The South 13 Delta Water Agency. Now there is also a fishery component. 14 I don't mean to make light of that, but I don't represent 15 fish. 16 If you don't have a settlement with the person that is 17 harmed by the action, it is not a settlement. So I don't 18 know how you can say that the Board should reward this 19 consensus building among the parties who are not harmed or 20 don't rely on the standard. Two defendants want to get out, 21 and they say, "We agree amongst each other that we are not 22 going to do anything to help the standard, please let us 23 out." That's beyond us. 24 We do believe that the record now shows that rather 25 than continue with the format that you are in, you need a CAPITOL REPORTERS (916) 923-5447 9710 1 triennial review. Unfortunately, the parties who should be 2 presenting evidence on the fishery needs and flows, flows to 3 protect those needs and what should be done, haven't 4 presented anything. The evidence to date shows that the 5 standards in the plan are, to put it mildly, suspect. 6 Rather than a large flow of water at Vernalis, the 7 evidence shows you need a head of Old River Barrier. So 8 what are we trying to settle here? 9 Secondly, I also believe that the Board needs to give 10 us a position. I know that is a very difficult request, and 11 I know it is not easy to do. I think it would be beneficial 12 to this process if the Board would explain to the parties 13 why we don't start with the idea of assigning responsibility 14 for the harm that has been caused. It seems to me before 15 you would anticipate anything, excluding entities, limiting 16 entities' liabilities, the first thing you would do is say, 17 "If we need a water quality standard for fish, what is 18 causing the need for that?" Once you've done that, you may 19 have solved the problem. If you force those parties to 20 mitigate that harm, you may not need to threaten other 21 people's water rights. I don't mean that maliciously. The 22 hearing here puts water rights at risk. 23 That is what Central Delta was getting to. There is a 24 whole bunch of things that are required, we believe, under 25 the law which, if addressed, make this contentious CAPITOL REPORTERS (916) 923-5447 9711 1 possibility of Phase VIII moot. So we believe that is the 2 way to go. 3 Finally, I would just like to say that I hope it makes 4 an impression on the Board that today, as well as every day 5 in the hearings, you hear everybody upstream of the Delta 6 and everybody downstream of the Delta telling you that 7 they've got this all figured out. And you hear the Delta 8 interest saying, "Help." And I believe you should take that 9 into consideration when you decide whether or not you are 10 going to make a piecemeal decision that will isolate most of 11 the parties responsible for causing the harm in the Delta 12 from having to cure that problem. 13 Thank you very much. I appreciate it. 14 C.O. STUBCHAER: Thank you, Mr. Herrick. 15 Mr. Herrick, Ms. Forster has a question. 16 MEMBER FORSTER: Mr. Herrick, yesterday in listening to 17 Assemblyman Machado, I was under the impression, right or 18 wrong, that there was going to be some renegotiation on the 19 river agreement. I heard those words. I've asked Esther to 20 get me a copy of that, and I wanted to know if you were 21 aware of it, and what you think that meant. 22 First, I have to ask counsel if that's an appropriate 23 question. Can I ask that question? 24 C.O. BROWN: It's an MOU. 25 C.O. STUBCHAER: I don't think it is a subject of this CAPITOL REPORTERS (916) 923-5447 9712 1 workshop. I agree that we didn't know that information. 2 MEMBER DEL PIERO: Mr. Chairman. 3 C.O. STUBCHAER: Mr. Del Piero. 4 MEMBER DEL PIERO: It probably is okay for her to ask 5 whether or not he knows if there are ongoing negotiations 6 taking place. It is inappropriate for her to ask the 7 substance of those negotiations, but it wouldn't hurt to 8 find out whether or not Mr. Short and Mr. Hildebrand are 9 talking to each other. 10 MEMBER FORSTER: No names. 11 C.O. STUBCHAER: Do you know the answer to Ms. 12 Forster's question? 13 MR. HERRICK: There has been one meeting with Mr. 14 Machado who was present, and in that meeting it was 15 discussed whether or not the parties can or will talk, and 16 the general answer is yes. Some of the parties had 17 conditions prior to their proceeding with those discussions. 18 Those conditions dealing with whether or not they had 19 protections. 20 C.O. STUBCHAER: I don't want to get any more because 21 it's evidence, but thank you for that information. 22 Any other questions? 23 Mr. O'Laughlin. 24 MR. O'LAUGHLIN: Chairman Stubchaer, Board Members. 25 Tim O'Laughlin representing the San Joaquin River Group CAPITOL REPORTERS (916) 923-5447 9713 1 Authority and the member units of the San Joaquin River 2 Group Authority. 3 As you probably realize, we have an extreme interest in 4 the question that you have in front of you, since the San 5 Joaquin River Agreement is an agreement that we would like 6 to see effectuated before moving to Phase VIII. 7 In regards to the questions that you have asked, I am 8 going to hit those very briefly. I think the other parties 9 who have spoken before me have addressed those. We have 10 already provided this Board back in April at the workshop an 11 extensive briefing document on CEQA. We have a supplemental 12 briefing document on CEQA that we will be providing this 13 Board after the workshop, in regards to some questions that 14 play a rise in regards to the going from phase orders and 15 implementation of CEQA. 16 The first issue is probably a no-brainer for us. 17 Should the State Water Resources Control Board issue phase 18 orders, and the answer is an unequivocally yes. We started 19 this process nearly three years ago when you issued your 20 1995 Water Quality Control Plan, have spent hundreds, if not 21 thousands, of hours and millions of dollars getting to this 22 place in time, trying to resolve the issue of the San 23 Joaquin River. What you have in front of you is an 24 unprecedented agreement, encompassing the entire San Joaquin 25 River Basin and all the parties, except for a small little CAPITOL REPORTERS (916) 923-5447 9714 1 portion, and I will acknowledge it, down in South Delta and 2 Central Delta Water Agency. But every other agency and 3 every other water right holder is covered on the San Joaquin 4 River by this settlement. 5 That is a historical agreement and should not be taken 6 lightly. We believe that only through phasing of the 7 orders can you effectuate the settlement agreement. The 8 reason why is very simple: If we go to Phase VIII without an 9 adoption of an order on the San Joaquin River Agreement, I 10 believe, that there is no way that we can keep that 11 coalition together and at the same time proceed through an 12 adversarial hearing on Alternatives 2 through 8. 13 The reason why is the vested interest of the parties in 14 order to protect their water rights would be too great in 15 order to keep that agreement together, such as Alternative 16 Number 5 where the impacts on the flow requirements of all 17 the various parties to the tributaries. You have Friant 18 unit in regards to Alternatives 3 and 4. You have a CVP 19 impact on New Melones if you go to Alternative 2. 20 If we get to that point, this whole settlement process 21 will break down, and then it would be up to the Board to 22 determine the water right allocations to implement the 1995 23 Water Quality Control Plan. We also believe that in going 24 forward in a phased process, if you would look at it that 25 way, the entire San Joaquin River and Basin would be out of CAPITOL REPORTERS (916) 923-5447 9715 1 your Phase VIII. There would be no other parties coming in 2 and contesting in Phase VIII on San Joaquin River issues. 3 That would substantially narrow the focus and extent of the 4 hearings as you proceed forward in Phase VIII. 5 The next question you asked in your workshop notice was 6 legal requirement for phased orders. We believe there are 7 two -- there is substantive requirements and that the State 8 Water Resources Control Board regulations permit any 9 suitable process. You've already started that process. You 10 started that process back in last June of 1998 when you 11 decided to go to a phased hearing process. In so doing, you 12 have now already gone and issued an order in regards to the 13 first phase. We see no difference in proceeding forward in 14 Phase II through VII in adopting further orders. 15 Of course, we recognize that CEQA has to be complied 16 with. But you must remember that CEQA projects can have 17 more than one discretionary approval when you proceed 18 forward. We see the procedural requirements, other than the 19 State Water Resources Control Board process in regards to 20 the EIR is that the EIR must be completed and certified 21 prior to any orders being issued. I don't think there is 22 any disagreement in this room on that point. 23 Now, the problem that arises is that after the EIR is 24 completed and certified, is the issue that Board Member Del 25 Piero raised in regards to what happens after a CEQA CAPITOL REPORTERS (916) 923-5447 9716 1 document is completed and certified? Orders are issued on 2 that document, and then you would go into Phase VIII and 3 hear supplemental testimony or evidence that may be 4 substantial -- and that is the test -- substantial in 5 nature, which would make you then want to revisit your CEQA 6 document. 7 The CEQA is very clear that you could issue a 8 supplemental EIR to the process prior to adopting orders in 9 Phase VIII and take in consideration of any substantial 10 evidence that you have heard that may change your initial 11 EIR document. We believe that once the EIR is adopted that 12 the State Water Control Board pursuant to the rules and 13 regulations of the Board and the Water Code can adopt orders 14 in the normal fashion that it does pursuant to its regular 15 procedures. 16 Our review of the question in regards to Water Code 17 1126 is judicial review. Any orders would be immediately 18 subject to judicial review that implemented Phases II 19 through VII. If a decision not to adopt an order, decision 20 not to adopt one of the settlement agreements, would not be 21 subject to additional review; it is not final. That would 22 probably have to wait until after Phase VIII. 23 Our proposal to proceed forward is complete and 24 certify an EIR as quickly as possible. You can do that at 25 any time. You don't need to wait until the end of Phase VI CAPITOL REPORTERS (916) 923-5447 9717 1 or VII. Continue and complete Phases II-A, VI and VII, get 2 those completed. We would then suggest, and put it out more 3 extensively in our written comments -- I provided 20 copies 4 to the Board. There is an additional 40 copies on the table 5 if parties want it -- a motion procedure whereby the Board 6 can then take up hearing motions in regards to the adoption 7 of orders in regards to specific settlement agreements. 8 After the State Water Resources Control Board has heard 9 those motions and drafted the orders, then they would then 10 renotice Phase VIII, hopefully with a more focused and 11 narrow scope, and are to proceed to Phase VIII. 12 We have provided along with our document our briefing 13 paper today what we would see as an example of a Phase II 14 order for adopting the San Joaquin River Agreement, has been 15 included in the package as well. 16 There is just several issues I would like to address 17 that have come up, both today and tomorrow, yesterday and 18 today and from where we go from here. We believe that the 19 San Joaquin River Agreement needs to be implemented as soon 20 as possible. It's now been almost four years in the 21 making. We need to get this component in place, this built 22 off the 1994 Bay-Delta Accord. After this agreement is in 23 place, we then believe that other actions need to be done in 24 the San Joaquin River Basin and in the Bay-Delta. But using 25 this as a platform we can then begin to address those CAPITOL REPORTERS (916) 923-5447 9718 1 issues. We look forward to working with other parties 2 within the San Joaquin River Basin and in the Bay-Delta to 3 address those various issues and start a dialogue to get 4 those problems resolved. 5 The other issue that I would like to address very 6 briefly is if we stop the process now and go through a 7 process that Mr. Nomellini has described, there will be no 8 implementation of the Bay-Delta standards in the near term. 9 Those standards will have to wait a great long time in order 10 to go through the process that Mr. Nomellini has described. 11 If we start a triennial review now, we will be here for 12 several more years working on a triennial review prior to 13 implementing the standards. I think it was well-recognized 14 by the Board in moving forward after the framework agreement 15 that we need to get the standards in place and implement 16 them, and then come back at a later date and do a triennial 17 review. 18 Those are my comments for the workshop, Chairman 19 Stubchaer. 20 C.O. STUBCHAER: Thank you, Mr. O'Laughlin. 21 Mr. Del Piero. 22 MEMBER DEL PIERO: Mr. Chairman, I have a request, and 23 it is not of Mr. O'Laughlin, but of all counsel. It will be 24 appropriate for them to respond in terms of briefing on this 25 issue. CAPITOL REPORTERS (916) 923-5447 9719 1 In 1978 this Board rendered a decision on the Delta. 2 Ultimately it became the subject of a hearing that was 3 resulted in the Racanelli decision. One of the criticisms 4 of this Board's process in that decision was that the Board 5 was too narrow in its consideration of the Delta and the 6 consequences of impacts of tributaries to the Delta, and 7 that this Board should have been broader in terms of its 8 considerations of those issues. 9 I would like all of the parties to address whether or 10 not the exclusion of the San Joaquin River is part of this 11 overall process prior to initiation of Phase VIII, would, in 12 fact, put us back in the same situation that the 1978 Board 13 found itself in in terms of attempting to properly 14 characterize the Delta prior to its decision. 15 C.O. BROWN: You said San Joaquin River. You meant the 16 San Joaquin River Agreement? 17 MEMBER DEL PIERO: The proposal, one of the proposals 18 -- one of the issues raised, I believe by Mr. O'Laughlin, 19 but there was one of the other speakers additionally 20 suggested that prior to Phase VIII we would benefit by 21 having the entirety of the San Joaquin River watershed 22 excluded from that process. The thought crossed my mind 23 that is sort of what happened in '78. That is what led to 24 the Racanelli decision where Judge Racanelli indicated that 25 this Board had erred, based on attempting to too closely CAPITOL REPORTERS (916) 923-5447 9720 1 confine the area of the Delta. It was subjecting to its 2 consideration. It doesn't need a response. I would like 3 everybody to brief on that issue. 4 C.O. STUBCHAER: You have all heard Mr. Del Piero's 5 suggestion, and you can point out differences between this 6 present situation and the 1978 situation, that would be 7 appropriate. 8 MR. O'LAUGHLIN: Any other questions from the Board or 9 the Chairman? 10 Thank you very much. 11 C.O. STUBCHAER: You're welcome. 12 Mr. Suyeyasu. 13 Good afternoon. 14 MR. SUYEYASU: Good afternoon, Mr. Chairman and Members 15 of the Board. Dan Suyeyasu for the Environmental Defense 16 Fund. 17 My comments today will in part answer Mr. Del Piero's 18 questions there. As you know, the Environmental Defense 19 Fund has from the beginning remained opposed to any type of 20 phased decision making by this Board. When the idea was 21 originally proposed, we didn't have any objections, per se, 22 to the phased reception of evidence. We didn't think that 23 necessarily should lead to phased decision making. We 24 actually thought that the phased reception of evidence might 25 help to clarify the issues as they were presented to the CAPITOL REPORTERS (916) 923-5447 9721 1 Board. 2 I would not let that earlier decision to phased 3 reception of evidence in any way dictate how you move from 4 this point forward. We are opposed to phase decision making 5 in large part because we realize that all of the parties to 6 the hearings are tied together by the various objectives in 7 the Water Quality Control Plan. 8 The parties to the San Joaquin River Agreement have 9 sought to get an interim order releasing them of, 10 essentially, all further liability in these hearings. The 11 agreement itself says they want to be released for the San 12 Joaquin portion of the Water Quality Control Plan. It is a 13 little unclear what that means, but it does appear to refer 14 to the Delta outflow obligation. 15 It is hard to imagine how this Board can enter an 16 interim decision, releasing everyone on the San Joaquin 17 River of obligations for the Delta outflow standard without 18 having received evidence on the Delta outflow standard from 19 the Sacramento River or any other tributaries to the Delta. 20 It is also hard to imagine how if an interim decision is 21 reached and that is taken to court how we can challenge that 22 decision as being inadequate in fulfilling the Delta outflow 23 standard when your decision in no way purports to do that, 24 but at the same time parties who could supply water to the 25 Delta outflow standard are being let out the door by that CAPITOL REPORTERS (916) 923-5447 9722 1 decision. 2 I don't know if I am unclear in the position that we 3 are to put in because what essentially the San Joaquin River 4 Authority has tried to do is they have agreed, all of them, 5 to meet one part of the Water Quality Control Plan, the 6 Vernalis objective. We do not believe that they are 7 actually meeting that, but that is what they purportedly 8 agree to do. Yet, they are trying to be released from 9 liability for all of the objectives in the Water Quality 10 Control Plan, and those are much broader than just the 11 Vernalis standard, and they have the ability to influence 12 the implementation of those objectives, not least of which 13 is the narrative objective for the doubling of salmon. 14 C.O. STUBCHAER: Mr. Suyeyasu, I am sorry to interrupt 15 you. I don't believe you have been here during much of 16 Phase II-A, and we have heard testimony about the so-called 17 backstop for the Delta outflow standard from the projects. 18 Just so you are aware of that as part of the participation 19 in the San Joaquin River Agreement. 20 MR. SUYEYASU: Okay. 21 C.O. STUBCHAER: Please proceed. 22 MR. SUYEYASU: We simply do not believe that the Board 23 can enter a decision releasing any party from liability 24 unless that decision also concludes that the parties being 25 released will meet the objectives for which they are being CAPITOL REPORTERS (916) 923-5447 9723 1 released. 2 Now, an analogy was made to a civil trial in which some 3 parties to a large litigation are released from the trial by 4 a settlement. That analogy simply is not appropriate here. 5 When that happens, the plaintiff in the suit might release, 6 you know, parties A, B and C for $50,000 of a total of a 7 hundred thousand dollar claim. And the plaintiff is going 8 to continue his claim against parties D, E and F. The court 9 might let those settling parties out, and they will have no 10 further liability. 11 If for some reason the plaintiff cannot recover the 12 balance of his money from parties D, E and F, that is simply 13 the plaintiff's problem. If he loses the suit, he cannot 14 say to the judge, "Judge, I didn't get all my money. Can 15 you bring parties A, B and C back into this court room?" 16 They are out; they are released. That is the plaintiff's 17 problem. But you, in essence, are the plaintiffs here on 18 behalf of the fish. You do not have the option of settling 19 for less than full implementation of the Water Quality 20 Control Plan. That is simply not something that you can 21 do. 22 So until you are confident, until you are sure that the 23 entire plan will be implemented, a release of liability 24 should not occur. 25 Now, I certainly understand the desire of some parties CAPITOL REPORTERS (916) 923-5447 9724 1 to not be here for Phase VIII, that long, drawn out 2 struggle. But if you do an interim decision at this point, 3 you may find yourself at the end of Phase VIII wishing that 4 you had some of those parties back in here in order to issue 5 a fair decision distributing some -- to allot responsibility 6 for some of the objectives other than the Vernalis 7 standard. 8 You will not be able to bring those parties back into 9 this hearing, however, without risking some type of taking 10 suit from those parties whom you let go earlier. Likewise, 11 the parties who are left in the suit might have some sort of 12 due process thing against you if you then allot them with 13 responsibility that properly belongs on the parties who have 14 already left. You will be stuck. 15 And what will happen is that the fish will suffer 16 because the fish do not have those protections. Eventually, 17 it will work its way through the court and our entire 18 hearing will have to start again is what I fear. That in 19 the end will be much more expensive and much more time 20 consuming than simply going through Phase VIII, the long, 21 laborious process, but doing it right the first time. 22 Thank you. 23 C.O. STUBCHAER: Thank you, Mr. Suyeyasu. 24 I think we have time for an afternoon break. We will 25 give Esther a break. Let's take a 12-minute break now. CAPITOL REPORTERS (916) 923-5447 9725 1 (Break taken.) 2 C.O. STUBCHAER: Please come back to order. 3 Mr. Robbins. 4 MR. ROBBINS: Mr. Chairman, Carolyn Mapes, who is 5 representing Senator Poochigian, is here to make a statement 6 on the Senator's behalf. 7 C.O. STUBCHAER: Please come up, Ms. Mapes. 8 Good afternoon, welcome. 9 MS. MAPES: Thank you, Chairman and Members. I am 10 going to read into the record Senator Poochigian's letter, 11 supporting the agreement: 12 Water quality, supply and reliability are of 13 critical importance to the region I 14 represent. As a result, I have been closely 15 following the Board's proceeding to implement 16 the 1995 Water Quality Control Plan and am 17 pleased to express my strong support for the 18 San Joaquin River Agreement. The negotiated 19 agreement involves wide, diverse ranging 20 interests from throughout the San Joaquin 21 River watershed. These participants are to 22 be commended for ensuring that the process 23 has been inclusive, cooperative and focused 24 on problem solving. Virtual consensus had 25 been a very significant achievement. Failure CAPITOL REPORTERS (916) 923-5447 9726 1 to proceed could result not only in the loss 2 of an opportunity to solve the problem, but 3 could result in protracted proceedings which 4 could not only be unproductive but 5 adversarial. Let me commend all the parties 6 involved for the dedicated efforts to reach 7 this agreement. It is an example of how 8 difficult public policy problems can be 9 successfully addressed when all parties set 10 aside parochial interests and work towards a 11 common goal. The San Joaquin River Agreement 12 is good for California, good for the region 13 and good for the environment. I offer my 14 wholehearted support for the agreement and 15 urge the Board to adopt and implement its 16 provisions as soon as possible. 17 Sincerely, Chuck. (Reading.) 18 C.O. STUBCHAER: Thank you very much. 19 MS. MAPES: Thanks for your time. 20 C.O. STUBCHAER: Please give our regards to the 21 Senator. 22 MS. MAPES: I will do that, thanks. 23 C.O. STUBCHAER: Mr. Brandt. 24 MR. BRANDT: Good afternoon. Alf Brandt for the United 25 States Department of the Interior. CAPITOL REPORTERS (916) 923-5447 9727 1 Keep my comments fairly short because I think a number 2 of other people have made the comments and explained the 3 position rather well of why it is important for us to move 4 toward phased orders in order to encourage settlement and 5 shorten this process and get this process done as quickly 6 as possible to ensure the Delta continues to receive 7 protection it needs. 8 Our original intent, when we first wrote a letter to 9 this Board back in December of 1997 proposing phasing, our 10 intent was to focus the issues because we saw a huge number 11 of issues. And, particularly from our perspective, could 12 understand because we are on most of the tributaries and we 13 play a significant role both in the San Joaquin and the 14 Sacramento side. We saw a huge number of issues that were 15 out there. We thought that, even though at that point we 16 had not completed the negotiations of the San Joaquin River 17 Agreement, we thought that going to a phasing and dealing 18 with the settlement in pieces made a lot of sense, to be 19 able to get us to a point where at the last phase we would 20 have much more focused issues and much more on point 21 evidence and testimony. 22 That is why we encouraged it. We thought it would 23 shorten the process. We anticipated that this would be a 24 long process. We thought it would shorten the process and 25 encouraged the settlements to come to fruition as quickly as CAPITOL REPORTERS (916) 923-5447 9728 1 possible. 2 We've consistently been supportive of making a decision 3 before Phase VIII. We have urged it for the San Joaquin 4 River Agreement. Of course, we would not advocate anything 5 that would not comply with the law. We have made 6 suggestions along the way that we find some way to do it, 7 and we think there are ways. I will not make any more 8 comments on the legal side at this point. I think I will 9 just rely on the comments of the San Joaquin River Agreement 10 as well as some of the comments of the State Water 11 Contractors, the Sacramento River parties and others as 12 well. I am not going into that right here. 13 In fact, even the agreements that we have opposed in 14 these hearings, we would encourage you to make a decision so 15 we know at least where we go with it in Phase VIII, what we 16 do with those agreements, and how we approach what is being 17 proposed there in Phase VIII. 18 We are concerned that if you add on more processes as 19 some have proposed, whether it is a triennial review or 20 doing more analysis and getting everything done beforehand, 21 setting flows, setting minimum flows on all the 22 tributaries, those kinds of requirements are just going to 23 lengthen this process. We remain committed. The Department 24 of the Interior remains committed that the Delta continues 25 to need protection. And, yes, we are going to be there. CAPITOL REPORTERS (916) 923-5447 9729 1 But it needs protection for more than just us. That is why 2 we think that if you put in more process, whether it is 3 setting minimum flows or doing a triennial review, we're 4 going to be here for another several years and the Delta is 5 not going to get better. We may very well still be there 6 and still be required to be there and be doing the best we 7 can to meet the standards. 8 But if we don't get this resolved, if we don't move 9 forward, the Delta is not going to make that improvement, 10 make the steps ahead. We are just going to continue to be 11 in this process, in this room, and the Delta out there is 12 not going to move very far. 13 So, where do we go from here? We would join in a 14 number of other parties who said let's finish Phase VI and 15 Phase VII. I just want to point out, by the way, Phase VII, 16 the consolidated place of use, which is perhaps one of our 17 -- we are the primary party there, most interested in that. 18 Has a separate EIR. So it really is kind of a separate 19 piece here that could be done separately and just move 20 forward on. But to finish Phase VI and VII, complete the 21 EIR, and move toward making decisions so we can focus the 22 issues and make sure the Delta is able to get timely, not 23 just protection, but timely protection. Get it now. Get it 24 soon. Get it with improvement within the next few years. 25 That is why we encourage you to move forward on phased CAPITOL REPORTERS (916) 923-5447 9730 1 orders. 2 Thank you. 3 C.O. STUBCHAER: Thank you, Mr. Brandt. 4 No baseball analogies today? 5 Mr. Jackson. 6 MEMBER DEL PIERO: He was going to be late this 7 afternoon, if you recall. 8 C.O. STUBCHAER: Ms. Harrigfeld. 9 Good afternoon. 10 MS. HARRIGFELD: Good afternoon, Chairman, Members of 11 the Board. My name is Karna Harrigfeld, and I am appearing 12 this afternoon on behalf of Solano County Water Agency. 13 We have given the State Board staff 20 copies of our 14 brief and have distributed a few for the members of the 15 audience. 16 As you know, Solano County Water Agency is a party that 17 has proposed a settlement agreement to this State Board and 18 requested approval of that settlement agreement as an 19 interim decision. The State Board has asked for comments on 20 three questions, and I will briefly address those three 21 questions. 22 The first question, should the State Board adopt a 23 decision before the conclusion of the Bay-Delta hearings to 24 resolve substantive issues? The simple answer to that, we 25 believe, is yes. The hearing is a burdensome process. The CAPITOL REPORTERS (916) 923-5447 9731 1 State Board has nearly completed five phases, five of the 2 eight phases, and has taken nearly seven months. 3 It goes without saying that the financial -- that there 4 is a substantial financial burden on the parties to these 5 hearings. The intention of the phased approach was that 6 parties could budget their resources and participate only in 7 those phases where their water rights may be affected. 8 Similarly, the hope was that certain issues could be 9 resolved and disposed of so that the scope of any final 10 phase of the hearing could be reduced or eliminated. 11 It should be the goal of the State Board to eliminate a 12 Phase VIII, if possible. Short of that, the State Board 13 should attempt to reduce the number of parties and issues to 14 be included in that phase. Therefore, wherever possible, 15 the State Board should adopt decisions before the conclusion 16 of the hearings to resolve substantive issues heard in 17 earlier phases. 18 As to the second question: Can the State Board legally 19 adopt a decision on some phases before all phases have been 20 completed? We believe the State Board can legally adopt a 21 decision on some phases of the hearing before other phases 22 have been completed. Obviously, the State Board must make 23 certain findings before adopting a decision on a particular 24 phase or on a particular agreement. The purpose of those 25 findings would be to ensure that no legal user of water CAPITOL REPORTERS (916) 923-5447 9732 1 would be injured, which should be the basis of any 2 determination by the State Board to adopt other phased 3 decisions. Such a conclusion would require a determination 4 to be made by the State Board that the phased decision can 5 be adopted without a corresponding, unacceptable increase in 6 burdens to parties involved in other phases of the 7 proceeding. 8 We believe a good example of this is the Putah Creek 9 stipulation proposed by Solano County Water Agency and the 10 Department of Water Resources. It has been established 11 through factual evidence that approval of this stipulation 12 would not unacceptably increase the burden of any other 13 party to the Bay-Delta proceedings. 14 The third issue that you have asked us to address is: 15 If the State Board adopts a decision before the conclusion 16 of the hearing, should that conclusion be subject to 17 judicial review? 18 It would not seem to be legally required that the 19 decision be subject to judicial review immediately pursuant 20 to Water Code Section 1126. It would probably have a legal 21 right to seek review of the entire decision after a final 22 decision of the State Board is made. However, practically, 23 it would be wise for the State Board to make any interim 24 decision subject to Water Code 1126. 25 As mentioned, the purpose of adopting an interim CAPITOL REPORTERS (916) 923-5447 9733 1 decision is to eliminate the burden on parties to 2 participate in Phase VIII of the hearings. If parties are 3 not allowed to challenge an interim decision of the State 4 Board, they will not know if they will be legally excluded 5 from or included in that final phase, and maybe to 6 participate anyway in order to fully protect their rates. 7 If interim orders are adopted, parties should be 8 allowed to seek judicial review pursuant to 1126, and the 9 State Board should not begin Phase VIII until such review is 10 final. 11 Thank you. 12 C.O. STUBCHAER: Thank you, Ms. Harrigfeld. 13 Any questions for Ms. Harrigfeld? 14 Mr. Sandino. 15 Excuse me a minute, Mr. Sandino. 16 Good afternoon, Mr. Sandino. Please proceed. 17 MR. SANDINO: Good afternoon, Chairman Stubchaer, 18 Board Members and staff. I am David Sandino on behalf of 19 the Department of Water Resources. 20 The Department of Water Resources appreciates the 21 Board giving us an opportunity to present our views about 22 the Board issuing orders addressing some of the earlier 23 phases before the Board starts Phase VIII. Before we 24 specifically address the three questions posed in the 25 January 14th notice for this workshop, we believe it would CAPITOL REPORTERS (916) 923-5447 9734 1 be helpful to review how we have arrived at this point of 2 discussing the merits of the Board entering an order before 3 the completion of all the phases. 4 At the workshop held last April the Department and 5 others supported a phased approach to these hearings on the 6 basis that such an approach would better focus the testimony 7 presented before the Board and would assist in the effort to 8 reach a comprehensive settlement for the Sacramento and San 9 Joaquin basis, thus avoiding the need for a protracted 10 water rights hearing in Phase VIII. 11 Ultimately, the Board adopted a phase approach last 12 May, and we believe now, in hindsight, that the Board was 13 correct in that approach. Although the phased hearing 14 approach based on subject matter adopted by the Board has 15 not been without complications, these complications would 16 have been magnified, we believe, if a less structured 17 approach had occurred. 18 Because of the phase structure, the hearing has been 19 more user friendly for the parties. As a result of the 20 phasing, certain parties have chosen not to participate in 21 some of the phases because they believe that a particular 22 phase was not germane to their interest. If phasing had not 23 occurred, we would certainly have had many more parties 24 participating in all the testimony out of fear that they 25 might miss something of importance to them. We also believe CAPITOL REPORTERS (916) 923-5447 9735 1 that the structure provided through the phasing has 2 benefited the parties' preparations for the hearings. The 3 ability to focus on a particular subject for each phase has 4 been helpful to the Department and perhaps to some of the 5 other parties as well because this has helped us to 6 structure our testimony by subject and, hopefully, present 7 it in a manner that is understandable to the Board and the 8 other parties. 9 In terms of the goal of achieving settlement, the 10 Board's phasing has also achieved a positive result. There 11 have been five settlements proposed to the Board for 12 consideration. All of which the Department of Water 13 Resources has participated in some capacity: the Putah 14 Creek, the Cache Creek stipulation, the North Delta Water 15 Agency settlement, East Bay MUD settlement and the San 16 Joaquin River Agreement. 17 We have also offered proposals, in essence, that 18 function as settlements for South Delta and for the Suisun 19 Marsh. We believe the proposed settlement for the San 20 Joaquin River by itself has justified phasing of the 21 hearings. It is plain to even the most casual observer of 22 these hearings that the testimony presented during Phases 23 II-A, II and V, involving on the San Joaquin River, is 24 remarkably complex and the parties with interest in this 25 river system have presented scores of testimony in CAPITOL REPORTERS (916) 923-5447 9736 1 cross-examination in support of their position. 2 We perhaps have only skimmed the surface of the full 3 depth of the complexity of the San Joaquin River, which we 4 would ultimately be facing in Phase VIII if the San Joaquin 5 River Agreement were not approved before the start of that 6 phase. 7 Given the depth of competing interests, a settlement 8 would appear to be the best vehicle to achieve a solution 9 with the broadest amount of consensus and with the best 10 chances of being implemented. We believe that the San 11 Joaquin River Agreement is a reasonable settlement for the 12 San Joaquin River. We have, as we've stated previously at 13 these hearings, supported its adoption. 14 As one of the inducements to settle, we stated last 15 April, and still believe, that the parties that have 16 achieved settlement acceptable to the Board should not have 17 the burden of participating in Phase VIII. The Department 18 also recognizes that if the Board accepts a settlement 19 before the start of Phase VIII, impacts from the settlement 20 should not be redirected to other parties within the 21 Sacramento-San Joaquin Basin. In other words nonsettling 22 parties should not be put in a different position in terms 23 of their ultimate obligations to meeting Delta objectives as 24 a result of the Board approving a settlement. 25 One way that impacts could be redirected is that if CAPITOL REPORTERS (916) 923-5447 9737 1 during Phase VIII the Board allocates obligation to a 2 nonsettling party that would have been an obligation of a 3 settling party, absent the Board's approval of settlement, 4 to avoid the redirection of impacts and facilitate the 5 Board accepting certain settlements before the start of 6 Phase VIII, the Department and the Bureau have offered to 7 backstop the San Joaquin River share of the Delta outflow 8 requirement and the Bureau's offered to provide a backstop 9 for the Vernalis objective. The Department has always 10 offered to backstop a fair share of the East Bay MUD 11 settlement. 12 Although our motives were sincere and our efforts time 13 consuming, our settlement negotiations on the San Joaquin 14 River have not been as successful as our efforts on the San 15 Joaquin River -- I'm sorry, I said that improperly. 16 Our settlement negotiations on the Sacramento River 17 have not been as successful as the efforts on the San 18 Joaquin River. The issues on the Sacramento River are as 19 complex, perhaps even more so, than those on the San 20 Joaquin. However, we have proposed settlements to the Board 21 for Cache Creek and Putah Creek. We have also resolved most 22 of the issues relating to the Yuba River and the 23 negotiations are still ongoing for this settlement. 24 I would like to now turn to the first of the Board's 25 questions presented in its notice. Namely, should the Board CAPITOL REPORTERS (916) 923-5447 9738 1 adopt a decision before the conclusion of the hearings? 2 Consistent with our earlier remarks, we believe it is 3 important that the Board adopt an order for settlement that 4 we have supported before Phase VIII starts. The benefits 5 associated with accepting the settlement and issuing an 6 order before the start of Phase VIII are substantial, in our 7 view. This approach would permit parties that have settled 8 to avoid having to spend considerable time and money during 9 Phase VIII and to have to present evidence, including 10 evidence against other parties that are signatory to the 11 settlement. 12 In the case of the San Joaquin River Agreement, the 13 number of parties that would avoid the need to participate 14 in Phase VIII on San Joaquin River are large. We note that 15 there are about 25 parties that have signed a statement of 16 support for the agreement. And this number underestimates 17 the scope of the settlement because it proposes to apply to 18 the entire San Joaquin River watershed upstream of 19 Vernalis. We note that there are approximately 50 water 20 rights holders upstream of Vernalis that are listed on Page 21 2-6 of the Board's Draft EIR as major water rights holders. 22 The phase approach would also permit a more focused and 23 less time-consuming participation in Phase VIII for 24 remaining parties. And perhaps, most importantly, the phase 25 approach would permit earlier implementation of the benefits CAPITOL REPORTERS (916) 923-5447 9739 1 of the settlement and meeting the Delta objectives and 2 improving the Delta environment, particularly those benefits 3 provided by the San Joaquin River Agreement for the 4 implementation of the VAMP experiment. 5 In terms of specific reasons for accepting the 6 settlement, others have spoken in more detail about the 7 specific reasons for the Board issuing orders for the San 8 Joaquin River Agreement and East Bay MUD before the start of 9 Phase VIII. So I will concentrate my remaining remarks on 10 other settlements, the North Delta Water Agency, Putah Creek 11 and Cache Creek Settlements. 12 None of these three settlements were opposed, and they 13 are substantially less complicated, in our view, than the 14 other two mentioned. First, the settlement with the North 15 Delta Water Agency. In this settlement, the Department 16 agrees to satisfy any obligation imposed on the North Delta 17 Water Agency to meet Delta objectives as a result of this 18 hearing. We believe the North Delta Water Agency settlement 19 is reflective of the 1981 contract with North Delta Water 20 Agency, in which the Department agreed to provide water of a 21 certain specified quality to the agency. 22 The Board accepting this settlement would simply be 23 recognizing the existing 20-year contractual relationship 24 between North Delta Water Agency and the Department. This 25 settlement does not impact other parties and would obviate CAPITOL REPORTERS (916) 923-5447 9740 1 the need of North Delta Water Agency to participate in Phase 2 VIII. 3 The settlement between the Department and Solano County 4 Water Agency and the department in Yolo County Flood Control 5 and Water Conservation District are similar to each other. 6 Both simply recognize the hydrological circumstance 7 involving Putah Creek and Cache Creek. Because of the 8 limited unimpaired flow, because of the limited unimpaired 9 flow of these creeks into the Delta during the period in 10 which the Delta is in balance, the Department believes it is 11 reasonable for the Board to accept the settlement and 12 thereby permitting the agencies and the district not to have 13 to participate in Phase VIII. 14 Although not technically a water rights settlement, the 15 Department will also ask the Board to consider adopting an 16 order for the Suisun Marsh, recognizing Amendment 3 to the 17 preservation agreement as fulfilling the Department's 18 obligation to the marsh objectives in the manner explained 19 in detail in our closing brief for Phase III. We recognize 20 that if the Board desires to adopt the order, it would not 21 have the benefit of reducing the number of parties to the 22 proceeding as would the settlements. However, we believe 23 the issues in the marsh are unique, that the proposed 24 Amendment 3 deals with implementing the objectives in the 25 marsh in a thoughtful and prudent manner. CAPITOL REPORTERS (916) 923-5447 9741 1 If the Board does not elect to include the Marsh in a 2 phase order, we appreciate the Board noting in Water Rights 3 Order 98-9 that we may continue to seek extensions for 4 compliance with the objectives in the two western marsh 5 stations S-97 and S-35. 6 C.O. STUBCHAER: How much do you have left? 7 MR. SANDINO: I have about five minutes. 8 C.O. STUBCHAER: Out of fairness, I will give you a 9 minute to summarize, and then you can submit it in writing. 10 MR. SANDINO: Thank you. 11 Rather than reading the prepared text, I will 12 summarize what we have left. 13 Just in general, in terms of Question Number 2: The 14 Department agrees with the analysis provided earlier, legal 15 analysis provided earlier by Yolo County Flood Control Water 16 Conservation District, the State Water Contractors and the 17 San Joaquin River Group about the CEQA issues. 18 We believe that it is possible for the Board to comply 19 with CEQA, and to do so would require the Board to issue a 20 certified EIR, issue orders before the start of Phase VIII. 21 Start Phase VIII, and make any modifications to its CEQA 22 document, if necessary, after Phase VIII. 23 Some of the earlier speakers alluded to how that may 24 occur. The Board could, if necessary, issue a supplement 25 EIR depending on what evidence was presented in Phase VIII. CAPITOL REPORTERS (916) 923-5447 9742 1 And as an alternative, if the evidence didn't require that 2 much of change, an addendum could be prepared as well. We 3 also analyzed, briefly, Question Number 3, the Board's 4 authority under Water Code or requirements under Water Code 5 1126. We believe that it would be possible to review -- to 6 seek court review from an order issued before Phase VIII. 7 We recognize that this is of some concern to the 8 Board. We also believe that given all the positive benefits 9 of issuing such an order that this is something that the 10 Board should seriously consider doing. 11 C.O. STUBCHAER: Thank you, Mr. Sandino. We recognized 12 that you covered more issues than any other party, I think, 13 in your statement. We appreciate receiving it and your 14 summary. 15 Any questions of Mr. Sandino? 16 MR. SANDINO: Thank you. 17 C.O. KOEHLER: Ms. Koehler told me she will file a 18 written brief, but she is not going to testify today. 19 And, Mr. Jackson, your name was called earlier when you 20 weren't here. Do you still wish to make a statement? 21 (Reporter changes paper.) 22 MR. JACKSON: Yes, Mr. Stubchaer. 23 I would encourage you not to accept the opportunity to 24 decide this case prior to the finishing of Phase VIII, and 25 the reasons can be divided into three parts. The first part CAPITOL REPORTERS (916) 923-5447 9743 1 is under CEQA in order to deal with a project, and this is 2 one project, you are required not to bifurcate the project 3 into little pieces. Essentially, that is what you would be 4 doing by deciding each of the phases prior to the Phase VIII 5 portion of the case. 6 Basically, I don't need to quote the law to you. Your 7 folks know that well, and that will be in the brief. But I 8 would like to point out some effects that it would have on 9 any continuing part of this case. 10 First, the Sacramento and San Joaquin Rivers are one 11 piece. This is the Sacramento-San Joaquin-San Francisco Bay 12 Delta. This is a watershed that covers a large portion of 13 California, and these decisions are going to determine the 14 economic future of various regions of California. 15 All the parties who have talked to you have one thing 16 in common. They believe that your decision is going to be 17 critical to them, both now and in the future. Look at what 18 would happen if you did approve some settlements. And some 19 of the settlements maybe should be approved at the end of 20 the whole case. But let's say that you approved some now. 21 Would people be able to get out of the hearing? Well, I 22 don't think so. Because those of us who are left in the 23 hearing are going to be trying to prove that we are not 24 responsible, that those people who settled were 25 responsible. And so, if they're not here, it is going to be CAPITOL REPORTERS (916) 923-5447 9744 1 real easy to do. There is not going to be any 2 counterevidence. There is not going to be any 3 cross-examination. If you settle the San Joaquin side, I 4 can certainly envision folks coming in from the Sacramento 5 side saying, "Excuse me, the problem is at the pumps in the 6 South Delta. The problem is in the flows from the 7 facilities in the San Joaquin." And all of those people -- 8 some of those people have junior water rights to us in the 9 Sacramento Valley. 10 There is not going to be any evidence contradicting 11 that. And, essentially, how are you going to make findings 12 on the Sacramento side of the watershed without reopening 13 the settlements that you just made on the San Joaquin side 14 of the watershed? So, in terms of balancing either the 15 public trust of the two plain drainages that come or the 16 respective water rights of the folks on the San Joaquin side 17 and the folks on the Sacramento side, you would be operating 18 on a record that was completely one-sided. Because, 19 theoretically, after you approve the settlements, all these 20 settling parties will go home. 21 I don't think that is likely to happen. They are going 22 to have to be eternally vigilant as the rest of us finish 23 the case. 24 The second set of problems that I see is that the 25 environmental effects in the Delta, which was sort of the CAPITOL REPORTERS (916) 923-5447 9745 1 purpose of the water quality plan and all of this 2 information, are caused by activities on both sides of the 3 Delta. And we have only heard half the problems. We have 4 only heard half the solutions. But the idea that parties 5 can now leave, certainly not, I am sure, DWR and the Bureau, 6 because they have facilities on the Sacramento side much in 7 excess of what they have on the San Joaquin side. They will 8 still be here. The exporters, clearly, who get most of the 9 water from the Sacramento side, they'll still be here. But 10 what we will have done is we will not be integrating the 11 water rights and the environment and the effects on the 12 people of California in the hearing. 13 Now that's why CEQA doesn't allow the bifurcation of 14 the projects. I guess you can approve -- I guess you can 15 rewrite a CEQA document to only be dealing with only half of 16 the water shed. And then approve it and then do the 17 settlement and then delay Phase VIII and the Sacramento side 18 until you've done an environmental document for that 19 side. And then you can hear the evidence on the Sacramento 20 side and you could, as I just heard suggested by DWR, then 21 do another environmental document. 22 It doesn't do anybody any good to precommit without 23 hearing all of the evidence. So it seems to me that for 24 both CEQA reasons, water rights reasons and environmental 25 reasons, you ought to hear all of the evidence before you CAPITOL REPORTERS (916) 923-5447 9746 1 make decisions that can affect each other. 2 Now, to step back from that for a moment, there is then 3 the question of what authority you are exercising under 4 Article X, Section 2, Waste and Unreasonable Use, and under 5 the public trust. But it would be impossible, at least in 6 my opinion and, I think, based upon the evidence that has 7 come in, to consider public trust issues in the Bay and the 8 Delta having previously committed to a solution that is only 9 half of the problem; actually in terms of water into the 10 Delta, probably 20 percent of the problem. 11 There are those of us who are on the Sacramento side 12 and in the Sierra who believe that the result of this 13 particular decision could be that you will allow settlements 14 that have happened so far, you will commit to solve the 15 environmental problems, and you will do that with the only 16 remaining water which will be on the Sacramento upstream 17 side. Some of the big irrigation districts on the 18 Sacramento side may make a deal. They may be gone, too. 19 Leaving those of us who have individual wells, who have area 20 or origin water rights, who have a future, we hope, 21 economically and socially and environmentally left here as 22 the people of last resort. 23 That is not the 50 year history of California. When 24 these projects were built within our counties, we were 25 assured that they wouldn't drain us of water. We were CAPITOL REPORTERS (916) 923-5447 9747 1 assured that they would be responsible for their own 2 environmental effects. Letting them out of the case 3 prematurely, no matter how convenient that might be, puts us 4 in a position where we are gravely harmed, not only in the 5 remainder of this case but for the next 50 to 75 years. 6 Please don't do that. Do this as one case, as one 7 people of the State of California. And we ask you to 8 continue with the hearing until either everyone has settled 9 and we have an agreement or until we are finished taking all 10 of the evidence so that you can make decisions that fit 11 together. 12 Thank you very much. 13 C.O. STUBCHAER: Thank you, Mr. Jackson. 14 Any questions for Mr. Jackson? 15 Mr. Jackson, I just have an observation here. You said 16 the water users would have to be eternally vigilant. It 17 occurs to me they would have to be attornelly [phon] 18 vigilant. 19 You got it? 20 MR. JACKSON: Yes, sir. I think you are probably 21 right. 22 C.O. STUBCHAER: That concludes the statements from 23 people who have requested to make statements today. We have 24 some time now for comments and maybe even an exchange if 25 anyone wishes to build upon what other people might say. CAPITOL REPORTERS (916) 923-5447 9748 1 Does anyone wish to make a comment, having heard what 2 the other parties have said? 3 Mr. Nomellini, I think you stood up first and then Mr. 4 Robbins. 5 MR. NOMELLINI: I would just like to say that Michael 6 Jackson said it well, that I can't see how we can get to a 7 Phase VIII where any of the principal water right holders 8 are going to stay out. I can't believe that they would be 9 comforted by having the backstop people, the Bureau of 10 Reclamation and the Department of Water Resources, as being 11 the ones in there to defend their particular water right 12 priority. 13 Of course, I think that approach towards the Phase VIII 14 is wrong. I think what we are really looking at is 15 responsibilities in the Delta that fall upon the Bureau and 16 the state by law, and that legal issues, if they were 17 defined and thrashed out, would settle that part of it. 18 That doesn't solve all of the ecological problems in the 19 whole watershed, and I think we are going to have to deal 20 with each tributary. But I can't see that we have gained 21 much in these settlement agreements that couldn't be 22 achieved by looking at the Bureau and the state water 23 projects acquiring water from different sources through 24 water transfers. 25 The San Joaquin River Agreement -- CAPITOL REPORTERS (916) 923-5447 9749 1 C.O. STUBCHAER: No, Mr. Nomellini, I wanted to confine 2 this discussion to the procedure and not to method. 3 And, also, this may not be possible because all the 4 parties have stated their positions very well. Anyone who 5 has a suggestion for some in-between or middle ground that 6 could help the Board and help the parties, still be fair to 7 the parties, I am sure we would all like to hear those, 8 too. 9 Mr. Robbins. 10 MR. ROBBINS: I am not sure I am the person to help 11 you with middle ground. 12 MEMBER DEL PIERO: You are only allowed up here with 13 happy news. 14 MR. ROBBINS: I thought I would address a couple of 15 the comments I've heard spoken to earlier, particularly some 16 questions by Board Members. 17 First, we heard yesterday from Assemblyman Machado a 18 suggestion that we put this whole thing on hold, and we not 19 implement, and we get an opportunity to try to renegotiate 20 the San Joaquin River Agreement or the other agreements in a 21 way that has more components plugged into it, if you will. 22 I can't tell you how long and how difficult a process 23 it was to get here, where we are today. And I will talk a 24 little bit more about what I think we can do to bring that 25 process further along. CAPITOL REPORTERS (916) 923-5447 9750 1 But we all know that the reason that we are really 2 here, frankly, is because when EPA issued their potential 3 standards for implementing federal view of what the Delta 4 should look like, nobody liked that idea. And the Accord 5 resulted and the standards were met and promises are being 6 made at least on get going on implementation. Additionally, 7 we have NMFS sitting outside of this process with the 8 potential listing of fall-run salmon that could be disaster 9 for everybody. Also have fish and wildlife issues to deal 10 with on the biological opinions for smelt. 11 Doing nothing, putting this project on hold at this 12 point just isn't realistic. This matter -- these planets 13 are lined up right now. Over the cross of the next few 14 months you are going to have an opportunity to say up or 15 down on this process. And then, depending on what that 16 decision is, we will all go to combat stations or we will do 17 some additional negotiations in order to try to broaden the 18 scope. 19 I certainly appreciate Assemblyman Machado's suggestion 20 that some additional units might be brought in to supplement 21 the river agreement, particularly negotiations concerning 22 issues having to do with water supply in San Joaquin County. 23 One of the great ironies in California water law is that the 24 place where all the water in California crosses seems to 25 have one of the most difficult and contentious water CAPITOL REPORTERS (916) 923-5447 9751 1 problems. And we have all struggled with that issue in 2 trying to come to some resolution of this issue. And we are 3 pledged to go forward with that issue, but we cannot do 4 nothing now. We must implement the river agreement now. 5 Holding this is coalition together through a contested water 6 right phase, where we all must defend ourselves because of 7 procedural quirks that are set before us relative to the 8 water law, would make that problematic at best. 9 Let me just address a couple of issues that were 10 raised. How is it that we've gotten so confused, I think, 11 about CEQA in this issue? It seems to me that the Board's 12 staff have done a remarkably good job. I say that at the 13 risk of having in Phase VIII to critique their job at a 14 later date. See if I can put my tongue that far out in the 15 cheek to say that. I think they've done a very good job at 16 bracketing the problem. 17 MEMBER DEL PIERO: Pay attention, Vickie. 18 MR. ROBBINS: We are looking at alternatives that range 19 from no action all the way to Alternative 5, which has huge 20 amounts of water impacts on a share-the-pain basis. It 21 seems to me that when you get to the end of Phase VII, you 22 should know everything you will need to know about the San 23 Joaquin River in issuing an order implementing the San 24 Joaquin River agreement or some other alternative for the 25 San Joaquin River side reserved for Phase VIII. It's that CAPITOL REPORTERS (916) 923-5447 9752 1 simple. The idea that we can go to Phase VIII and discover 2 some issue that would change the way that the EIR or the 3 material that the EIR has to cover is present. 4 But what you know now is what is important in terms of 5 certifying that EIR. Is it reasonably prudent to do so? I 6 would suggest to you that it is in light of alternatives 7 that are known at this point. You can certify that EIR, 8 issue an order, subject it to the legal review. That would 9 be good for everybody, certainly for the Board. We'd at 10 least know where we all stand in that issue. Move forward 11 in Phase VII knowing that we have a good EIR or we don't, 12 and conclude these proceedings. It seems to me rather 13 obvious. 14 Finally, I don't think that this process takes us out 15 from underneath the mandates of Racanelli. In fact, we 16 wouldn't be dismissing the San Joaquin River at all. 17 Frankly, I think the San Joaquin River Agreement is a pretty 18 substantive contribution and would clearly satisfy the 19 requirements that it be taken into account. 20 Thank you. 21 C.O. STUBCHAER: Mr. Robbins, Ms. Forster has a 22 question. 23 MEMBER FORSTER: I think you were trying to address in 24 some of your comments a question that I asked about opening 25 up the San Joaquin River Agreement. And my interest in CAPITOL REPORTERS (916) 923-5447 9753 1 asking that question was a lot narrower than what I was 2 hearing you say. 3 What I thought I heard yesterday was not to put the 4 process aside. What I thought I heard yesterday was a 5 little window of opportunity for one of the hardest parts of 6 the phases we've heard so far on water quality and impacts 7 of parties that feel hurt from water quality issues that 8 stem from the San Joaquin River, evidence that has been 9 going on. So, it isn't unnatural at the eleventh hour for 10 parties to say, "Is there an opportunity for one more shot 11 to bring a little peace to this whole contentious issue that 12 we have been listening to?" 13 So my -- and then when Ms. Zolezzi got up and talked 14 about the MOU, there wasn't enough information to understand 15 what that is. That is all that was, is there an opportunity 16 out there that we only got -- I call it teasers, very 17 untechnical -- to get a teaser of something that might be 18 out there that we might have a benefit of knowing about that 19 a few words to not give us the benefit. That's very narrow, 20 big issue. That is what I was asking. 21 MEMBER DEL PIERO: Was that a question? 22 MEMBER FORSTER: I was explaining myself. I was 23 explaining myself and trying to get a little better 24 understanding of what that all meant yesterday. And I still 25 understand it. CAPITOL REPORTERS (916) 923-5447 9754 1 C.O. STUBCHAER: Mr. Del Piero. 2 MR. ROBBINS: We are getting wonderful input here, and 3 I will relay it. 4 MEMBER DEL PIERO: Mr. Chairman, I have a comment to 5 make. It is -- I am not asking a question at this point. 6 C.O. STUBCHAER: On this subject? 7 MEMBER DEL PIERO: It is tangentially related to this 8 subject. I mean, was that a question that expected an 9 answer on? 10 MEMBER FORSTER: I guess my question, I still -- my 11 question is: What did that mean yesterday? 12 MR. ROBBINS: Let me see if I can't try to be a little 13 more specific. You had several teasers, as it were, 14 throughout this hearing process. And some of those we are 15 going to try to get to you as we continue with rebuttal 16 evidence and other phases. But what -- I am not sure what 17 yesterday meant. It was Assemblyman Machado's view of the 18 world, that we need to stop this process. 19 And, frankly, I heard him say in such a way that, 20 particularly with the goal he had in mind of reopening and 21 renegotiating the agreement. Would go on for years. That 22 was the reason I just didn't think it would work. 23 Secondly, the San Joaquin River Agreement is as much a 24 political statement as it is a legal statement. And I say 25 that only in the sense that we try to deal with the issue on CAPITOL REPORTERS (916) 923-5447 9755 1 a nonfault basis. We try to come to some consensus. And 2 every phrase in that agreement was written and rewritten and 3 massaged. The nuances of the language frightened everybody 4 because we all had hundreds of issues to deal with. 5 So the idea of rewriting a San Joaquin River Agreement 6 is just beyond comprehension. The notion that the parties 7 that are settling under the San Joaquin River Agreement, if 8 it is implemented, can do some additional things, can 9 negotiate, can try, if you will, to accommodate other 10 parties' position within the context of what we agreed to, 11 we are willing to try. Policy people have suggested that we 12 are willing to try to do that. 13 But we cannot renegotiate the agreement at this hour 14 and have realistic expectations of having an agreement. So, 15 99 percent of a pie, we think, is good enough to go to 16 implementation and worry about the other issues as we can. 17 C.O. STUBCHAER: Does that answer your question, Ms. 18 Forster? 19 Fine. Thank you. 20 Mr. Jackson was next. 21 MR. JACKSON: You asked for suggestion in regard to 22 common ground, middle ground? 23 C.O. STUBCHAER: If it exists. 24 MR. JACKSON: Let me explain to you what might help me 25 to decide what to recommend to my clients to do at the end CAPITOL REPORTERS (916) 923-5447 9756 1 of this case because we don't know yet what we are going to 2 do at the end of this case. 3 There has been a tremendous amount of evidence on all 4 sides in regard to the San Joaquin River. I think that is 5 very valuable evidence. I think in some ways I've been 6 surprised by some of it. Some of Mr. Birmingham's 7 information was a lot better than I thought his information 8 was. And his position may be stronger than I thought his 9 position was. 10 MR. BIRMINGHAM: This is all being recorded. 11 MR. JACKSON: I am trying to find some middle ground 12 here. 13 The problem that I have in determining what I ought to 14 think about Mr. Birmingham's case is that I don't know what 15 is going on yet in this record on the Sacramento side. I 16 know that the Bureau from the Trinity County folks is going 17 to take some amount of water out of the Sacramento system to 18 use on the Trinity. 19 I have reason to believe from the United States Fish 20 and Wildlife testimony that that is going to have some 21 effect on winter-run salmon on the Sacramento River. I 22 don't know what yet. 23 I know that there has been some sort of change in the 24 PROSIM modeling on the Sacramento side in regard to the 25 connection of groundwater and surface water, and I've heard CAPITOL REPORTERS (916) 923-5447 9757 1 numbers from 500 to 800,000 on the Sacramento side that will 2 have some affect in the Delta. 3 I know that there are some settlements being worked out 4 in the Sacramento side. I don't know what they are or what 5 effect they would have. 6 I know that there is some indication that the Bureau 7 and DWR are going to backstop the Sacramento side, whatever 8 that word means. I know that there are -- to read the 9 environmental document, areas on the Sacramento side when 10 the flows are already as high as this working paper for the 11 anadromous fish would recommend. I don't know if there are 12 areas in which there are not enough flows. 13 So I guess what I would suggest is this: Before we go 14 into pointing at each other, there ought to be some sort of 15 hearing in a Section VII-A that deals with the underlying 16 facts on the Sacramento side and how they might affect any 17 potential evidence that you heard on the San Joaquin side. 18 We don't need to come in here and do a water rights case 19 yet. We may never have to do it. But we certainly need to 20 know what the facts are on the other side of the Bay-Delta 21 before we tie ourselves to an approval. 22 And so I would suggest a VII-A of mostly from the 23 Bureau and DWR to let us know what the situation is. 24 C.O. STUBCHAER: Maybe that is VIII minus. 25 MR. JACKSON: VIII minus; I'm for that. CAPITOL REPORTERS (916) 923-5447 9758 1 C.O. STUBCHAER: Mr. Brandt and then Mr. O'Laughlin. 2 MR. BRANDT: I have just a quick, another perspective 3 stepping out to keep in mind, is that while this is a very 4 important piece of the puzzle of helping to fix the Delta, 5 it is one piece. There are other pieces. We are over in 6 CalFed, as well, doing other kinds of things. We are 7 trying to deal with even the barriers issue. We are trying 8 to figure out how to deal with fish and how to overcome the 9 problems that barriers may cause for fish in other kinds of 10 ways. This is one piece. 11 That is part of the reason why we think it is important 12 to move forward with this piece, so that there is continued 13 -- what is it we can constantly say, CalFed -- continuous 14 improvement I think is the expression we use. It's this is 15 one piece that needs to go forward, but we are also doing 16 other things other places to deal with some of these issues. 17 When you ask about renegotiation, no, there is not 18 renegotiation in the San Joaquin River Agreement. But there 19 are a whole lot of renegotiations about a whole lot of these 20 issues that are indirectly or directly in these hearings. 21 We are trying to deal with those things at a lot of 22 different locations on a lot of different pieces. So I 23 don't know whether that helps, but it is just something to 24 keep in mind trying to figure out a way to go forward. This 25 is one piece, but we will keep working on the other pieces CAPITOL REPORTERS (916) 923-5447 9759 1 to try and deal with and help fix the Delta in the long 2 run. 3 C.O. STUBCHAER: Thank you. 4 Mr. O'Laughlin, you were up previous. 5 Mr. Del Piero. 6 MEMBER DEL PIERO: Mr. Brandt, you don't have to answer 7 me now. But a question that would, I think, help the Board 8 understand the position of the Department of the Interior 9 would be to know what the status is of the water that is 10 supposedly to be made available on the San Joaquin side as a 11 result of Congress' decision in regard to CVPIA. You don't 12 have to answer me now. It would be appropriate, I think, 13 sir, if you forwarded that information to us as part of your 14 briefing. 15 MR. BRANDT: Can I understand, when you say the 16 "CVPIA," there are many sections of CVPIA. 17 MEMBER DEL PIERO: 803 (B). 18 MR. BRANDT: (B)(2), and your question is related to 19 the (B)(2), what are we planning to do or -- 20 MEMBER DEL PIERO: I want to understand that from a 21 standpoint of your backstop: What that is, what has been 22 represented as part of the agreement as opposed to what is 23 now, in fact, available as opposed to what you are making 24 available to Grasslands, as opposed to what you are making 25 available for flow at Vernalis. CAPITOL REPORTERS (916) 923-5447 9760 1 MR. BRANDT: Okay. 2 C.O. STUBCHAER: Mr. Del Piero, the reason I hesitated 3 there -- 4 MEMBER DEL PIERO: That is part of the briefing. 5 C.O. STUBCHAER: I understand. 6 MEMBER DEL PIERO: I am not asking him to be submitting 7 evidence. 8 C.O. STUBCHAER: It is not evidence. 9 MEMBER DEL PIERO: To be addressed. 10 C.O. STUBCHAER: I understand. As long as that is 11 clear. 12 Mr. O'Laughlin. 13 MR. O'LAUGHLIN: I will yield to Mr. Birmingham. 14 C.O. STUBCHAER: Point of fairness, Mr. Herrick. 15 MR. HERRICK: I apologize. 16 C.O. STUBCHAER: Please go ahead. 17 MR. HERRICK: I apologize for being a spoiler. My time 18 of duty here is not as long as other people. My perspective 19 is wrong. 20 It is not a reason to adopt an order to choose a course 21 of action here based on convenience. The parties who, shall 22 we say, group together and forced South Delta to fight 23 everybody are telling you they don't want to have to fight 24 everybody. 25 Now, why do the South Delta riparians have to fight the CAPITOL REPORTERS (916) 923-5447 9761 1 world in order to protect those rights. They're riparian 2 rights. That doesn't solve the problem here. We think the 3 problem is solved by applying existing law and existing 4 permits. If you determine what the Delta Protection Act 5 requires first, if you determine who caused harm first, if 6 you force somebody whose got a permit obligation to do 7 something to show you how they are going to do that, you 8 don't need any water from anybody else. 9 If you prejudge it by taking one piece out as they're 10 telling you, let's solve this one piece, you automatically 11 prejudged or predetermined the alternatives for the rest of 12 the pieces, and this one piece does not deal with Vernalis 13 water quality salinity standard. Doesn't deal with that. 14 You take that out of the picture, how are you going to meet 15 that? You're not going to meet it. We saw that you're not 16 going to meet it. 17 If you apply existing law first through this process, 18 that's what it's for, how much water does the Bureau have to 19 do to meet the various obligations, you come up with this 20 minuscule amount of water that you may need, we believe. 21 Again, it is not convenience that the other party didn't 22 have to fight everybody. We had to do that. Look at the 23 number of attorneys and the size of the law firms and the 24 money spent in trying to show you that the South Delta 25 doesn't need any protection. Those were the parties who CAPITOL REPORTERS (916) 923-5447 9762 1 refused to talk to us. Now they are telling us, "Yeah, 2 couple people are out there. We will sure talk to them 3 afterwards." What kind of deal is that? It's beyond me -- 4 excuse me for interjecting an opinion, it is inconceivable 5 that convenience prevails over water rights. 6 I don't want to spend all their money either. I don't 7 want to spend all of South Delta's money, which we are 8 doing, our limited budget. I don't want to fight the world. 9 But if we applied the existing law and make the, excuse the 10 expression, Bureau of Reclamation mitigate what they have 11 done to us, goes away. 12 C.O. STUBCHAER: Mr. Herrick, thank you. 13 Mr. Birmingham. 14 MR. BIRMINGHAM: I think what Mr. Herrick has just 15 done is made an argument as to why the Board should not 16 accept the San Joaquin River Agreement, and it is my 17 understanding that that is not the purpose of this workshop. 18 C.O. STUBCHAER: I agree. It is not closing arguments 19 we are trying to look for. 20 MR. BIRMINGHAM: So, I won't take an opportunity to 21 respond to Mr. Herrick's comments, that were the basis of 22 really a form of an argument, but I would like to respond to 23 a couple things that he said during his earlier presentation 24 to the Board. And they are somewhat consistent with 25 comments made by Mr. Suyeyasu about the fact that in these CAPITOL REPORTERS (916) 923-5447 9763 1 proceedings there is no plaintiff and what the Water Board 2 is being asked to do is to accept settlements among 3 defendants. And I think there is a different perspective. 4 From the perspective of a federal contractor who 5 relies on exports by the Bureau of Reclamation, the 6 plaintiff in this action or the two plaintiffs in this 7 action are the Bureau of Reclamation and the State Water 8 Project. The reason for that is historically the Water 9 Board has looked to the two projects to comply with and 10 implement the water quality standards for the 11 Bay-Delta. And the purpose of this hearing is to determine, 12 applying existing law and existing permit terms, are there 13 other water users who should be responsible, who should 14 assume part of the responsibility for implementing the 1995 15 Water Quality Control Plan. 16 If the Board determines that they are not, then the 17 Bureau and State Water Project will continue to be 18 responsible. But the settlement that is part of the San 19 Joaquin River Agreement is the parties to that agreement 20 have said to themselves and among themselves, rather than 21 taking risks that the Water Board will impose most a 22 decision that we don't like, that may take more water away 23 from us than we want to give up, we will agree to do certain 24 things. And so long as that agreement and the adoption of 25 that agreement by the Water Board doesn't impose greater CAPITOL REPORTERS (916) 923-5447 9764 1 obligations on other water users, the acceptance of the 2 agreement by this Board is very similar to the acceptance of 3 a settlement agreement by a court in a systemwide 4 adjudication. 5 C.O. STUBCHAER: Now you are making closing argument to 6 accept the agreement. 7 MR. BIRMINGHAM: I will try to refrain from doing that, 8 but I want to point out that there is a plaintiff and there 9 is a group of defendants. Mr. Jackson has said that we need 10 to conduct an VIII minus phase to find out what is going on 11 in the Sacramento River. 12 From our perspective, we don't think that that would 13 be necessary in order to go forward with phased decision 14 making because the Bureau and the State have said if 15 ultimately the obligation of the San Joaquin River is 16 greater than what we anticipated it would be for these 17 parties, we will accept it. We will accept that obligation, 18 so the other parties should not be hurt and will not be hurt 19 if the Board goes forward with that kind of phased approach. 20 C.O. STUBCHAER: Thank you, Mr. Birmingham. 21 I want to thank the parties for comments. I am not 22 sure how much assistance they have been to the Board. We 23 will certainly consider them and proceed with our process. 24 And I want to remind everyone that the briefs are due no 25 later than 5:00 p.m., Monday, March 1st. CAPITOL REPORTERS (916) 923-5447 9765 1 Before we adjourn, I want to go back to rebuttal for 2 Phase II-A that we discussed right at 1:00 p.m. Some of you 3 might not have been here yet. 4 I announced that we will not begin the rebuttal or hear 5 the rebuttal testimony before Tuesday, February 16th. There 6 was discussion this morning, concerned about maybe not 7 finishing. We know we won't finish the examination and the 8 direct on Phase II-A until February 9th and possibly 9 February 10th. Regardless of when we finish on those days, 10 we won't begin rebuttal until the 16th. And we intend to 11 use the random process that we have been using in the order 12 of rebuttal. 13 So I will leave it to the group. Would you like to go 14 through that identification of rebuttal testimony today, who 15 is going to put on a rebuttal case and get your order of 16 proceeding? Or do you want to wait until the 9th? 17 MR. O'LAUGHLIN: I would prefer to do that now, 18 Chairman Stubchaer. 19 C.O. STUBCHAER: Anyone else? 20 MR. NOMELLINI: I'd like to wait until the completion 21 of the cases in chief. 22 MR. CAMPBELL: I'd also like to wait until completion 23 of the cases in chief. 24 C.O. STUBCHAER: Mr. Birmingham. 25 MR. BIRMINGHAM: I think the parties ought to know now CAPITOL REPORTERS (916) 923-5447 9766 1 whether or not they are going to be putting on rebuttal 2 evidence, and, if they are, when they're expected to do it. 3 I would prefer to make that decision. 4 C.O. STUBCHAER: I would observe that everyone has had 5 the direct testimony of all the parties and should be able 6 to have been preparing rebuttal testimony already. I know 7 they haven't had the benefit of the complete 8 cross-examination, but I guess no one is prejudiced by 9 waiting till the 9th or 10th to assign the order. You can 10 begin working on your rebuttal then, so we will wait until 11 then to -- 12 Mr. O'Laughlin. 13 MR. O'LAUGHLIN: I would kindly disagree. The problem 14 is going to be if we wait until the 10th to determine an 15 order, and you're the first one up, and you have witnesses 16 that you have to call or get subpoenas issued for, or 17 whatever, you are going to have to make arrangements in 18 very short time to rearrange those persons' schedules to get 19 them here within a five-day period. 20 It doesn't prejudice anybody. I would be very willing 21 to work with the other parties, that if they don't like the 22 order of the proceedings, we can work around that. I'd 23 clearly like to know if I am going to be up number one. 24 C.O. STUBCHAER: Mr. Jackson. 25 MR. JACKSON: I certainly wouldn't mind going number CAPITOL REPORTERS (916) 923-5447 9767 1 one. I would like to make it clear that I would like the 2 Board to instruct the Board staff who prepared the EIR to be 3 present the first day if I am the first witness because that 4 is who I intend to put on. 5 C.O. STUBCHAER: Rethinking what I just stated, I guess 6 it doesn't hurt to determine the order of rebuttal because 7 no one is prejudiced by that. You won't be putting on your 8 rebuttal until you hear all the examination. If it is a 9 question of whether you are going to present rebuttal at 10 all, just reserve your space in the line. 11 Is that all right, Mr. Nomellini? 12 MR. NOMELLINI: That is fine with me. 13 C.O. STUBCHAER: Let's go through the exercise. 14 MR. WHITNEY: I believe some of the parties are not 15 here this afternoon. Some of the parties for phase -- 16 C.O. STUBCHAER: If some of the parties are not here 17 and we suspect they are going to want to put on rebuttal, we 18 will give them a spot, and if not, we will add them later 19 without prejudice. 20 We are just taking names now. 21 Mr. O'Laughlin, Mr. Campbell. 22 MR. CAMPBELL: Provisionally. 23 C.O. STUBCHAER: Mr. Birmingham, Mr. Sandino. 24 I going slowly to give him a chance. 25 Mr. Jackson, Mr. Nomellini, Mr. Herrick. CAPITOL REPORTERS (916) 923-5447 9768 1 MR. HERRICK: Just to reserve a spot. Thank you. 2 C.O. STUBCHAER: Mr. Brandt, Mr. Robbins, Mr. Sexton. 3 Anyone else? 4 Let's put Ms. Koehler on the list. 5 Ms. Harrigfeld, do you think Ms. Zolezzi would want to 6 put on rebuttal? Do you want to reserve a spot on the list? 7 MS. HARRIGFELD: Sure. 8 C.O. STUBCHAER: For Stockton East. 9 Ms. Cahill. 10 MS. CAHILL: I don't think, but let me reserve a 11 place. 12 C.O. STUBCHAER: Zolezzi and Cahill. 13 MS. WHITNEY: What about Greg Thomas? 14 C.O. STUBCHAER: Greg Thomas from NHI. 15 C.O. BROWN: What about Dan Gallery? 16 C.O. STUBCHAER: No. He's out. He got everything 17 accepted. 18 Off the record for a moment. 19 (Discussion held off the record.) 20 C.O. STUBCHAER: Back on the record. 21 Mr. Jackson was clairvoyant, I must say. 22 MR. JACKSON: The federal government has been after me 23 my whole life. 24 C.O. STUBCHAER: First is Mr. Jackson. 25 Second is Cynthia Koehler. CAPITOL REPORTERS (916) 923-5447 9769 1 Third is Greg Thomas. 2 John Herrick. 3 C.O. BROWN: Herrick is fourth. 4 C.O. STUBCHAER: Robbins, Kenneth Robbins. 5 C.O. BROWN: Is five. 6 C.O. STUBCHAER: Virginia Cahill. 7 C.O. BROWN: Cahill is six. 8 C.O. STUBCHAER: Dante John Nomellini. 9 C.O. BROWN: Seven. 10 C.O. STUBCHAER: David Sandino. 11 C.O. BROWN: Sandino is eight. 12 C.O. STUBCHAER: Matthew Campbell. 13 C.O. BROWN: Ninth. 14 C.O. STUBCHAER: Alf Brandt. 15 C.O. BROWN: Tenth. 16 C.O. STUBCHAER: Tim O'Laughlin. 17 C.O. BROWN: Eleventh. 18 C.O. STUBCHAER: Thomas Birmingham. 19 C.O. BROWN: Twelfth. 20 C.O. BROWN: Jean Zolezzi. 21 C.O. BROWN: Thirteenth. 22 C.O. STUBCHAER: Michael Sexton. 23 C.O. BROWN: Fourteenth. 24 C.O. STUBCHAER: If there is nothing further to come 25 before this Board today -- wait, wait. CAPITOL REPORTERS (916) 923-5447 9770 1 MR. JACKSON: There is one thing. The EIR in this 2 process is an extremely important document in the comparison 3 of alternatives. Would you direct -- I think -- Tom, were 4 you the person who was in charge of preparation? 5 MR. HOWARD: Yes. 6 MR. JACKSON: Would you direct Tom to be present on 7 the 16th for examination? 8 C.O. STUBCHAER: Please be present if you are able. 9 MS. LEIDIGH: I would like to comment just briefly. 10 Mr. O'Laughlin has already acquired a subpoena to have Mr. 11 Howard testify. And our process that we've required other 12 parties to do, if they want staff to testify, is we require 13 them to get a subpoena. 14 MR. JACKSON: I understand that is the case, but that 15 it is just a complete waste of time to do that. I mean, you 16 have jurisdiction over your own staff. 17 C.O. STUBCHAER: There are reasons why we do that. 18 MR. JACKSON: All right. 19 C.O. STUBCHAER: Do we have the form for the 20 subpoena, Ms. Leidigh? 21 MS. LEIDIGH: I have forms, yes. 22 C.O. STUBCHAER: We are going to -- 23 Mr. Maddow. 24 MR. MADDOW: One very brief question, Mr. Chairman. I 25 just wondered at some point the Board or the staff is going CAPITOL REPORTERS (916) 923-5447 9771 1 to give us an indication of how we are going to come to 2 closure on the issues that were the subject of today's 3 workshop? 4 C.O. STUBCHAER: I said we are taking those under 5 advisement. We will consider them. Of course, we have to 6 make some sort of decision as to how we are going to 7 proceed. 8 MEMBER DEL PIERO: Mr. Chairman. 9 C.O. STUBCHAER: Mr. Del Piero. 10 MEMBER DEL PIERO: In regards to Mr. Howard's 11 popularity, are there others that anticipate examining him? 12 MR. NOMELLINI: If you bring him, we might have a few 13 questions at the hearing. 14 MEMBER DEL PIERO: I want to know how many subpoenas 15 are going to hammered, laid on Mr. Howard's shoulder prior 16 to. If there are going to be more than Mr. Jackson and Mr. 17 O'Laughlin -- 18 MR. O'LAUGHLIN: If I could. We have a subpoena out 19 for Mr. Howard. I will work with Mr. Jackson in making sure 20 that Mr. Howard is available for testimony and coordinating 21 that testimony with the other parties, so we don't unduly 22 tie up Mr. Howard's time bringing him back on various 23 separate occasions for rebuttal testimony. 24 MEMBER DEL PIERO: That is not the concern I had. I 25 think the concern I had, the duplication of the number of CAPITOL REPORTERS (916) 923-5447 9772 1 subpoenas for the same individual who we know is going to be 2 here anyway. 3 C.O. STUBCHAER: Mr. Del Piero, I understand there are 4 legal reasons why we have to have these individual 5 subpoenas. 6 Anyway, if there is nothing else, we are adjourned 7 until 9:00 a.m., Tuesday, February 9th. 8 (Hearing adjourned at 4:00 p.m.) 9 ---oOo--- 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 9773 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 9567 through 14 9773 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 19th day of February 19 1999. 20 21 22 23 24 ______________________________ ESTHER F. WIATRE 25 CSR NO. 1564 CAPITOL REPORTERS (916) 923-5447 9774