STATE WATER RESOURCES CONTROL BOARD
PUBLIC HEARING
1998 BAY-DELTA WATER RIGHTS HEARING
HELD AT:
BONDERSON BUILDING
901 P STREET
SACRAMENTO, CALIFORNIA
WEDNESDAY, FEBRUARY 10, 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
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11
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13
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16
17
18
19
20
21
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23
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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
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CAPITOL REPORTERS (916) 923-5447
1 INDEX
PAGE
2 RESUMPTION OF HEARING 9927
3 NATURAL HERITAGE INSTITUTE:
4 OPENING STATEMENT:
BY MR. THOMAS 9927
5 DAVID K. FULLERTON
DIRECT EXAMINATION:
6 BY MR. THOMAS 9932
CROSS-EXAMINATION:
7 BY MR. NOMELLINI 9943
BY MR. HERRICK 9948
8
9
10 ---oOo---
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
CAPITOL REPORTERS (916) 923-5447
1 SACRAMENTO, CALIFORNIA
2 WEDNESDAY, FEBRUARY 10, 1999
3 ---oOo---
4 C.O. BROWN: Morning, ladies and gentlemen.
5 Mr. Stubchaer sends his regrets. Jim went home ill
6 yesterday and will not be with us today. Mary Jane and I
7 will be officiating today.
8 Mr. Thomas, you are up on direct.
9 Has your witness taken the oath?
10 MR. THOMAS: No, not yet. If that oath can be
11 administered at this time.
12 (Oath administered by C.O. Brown.)
13 C.O. BROWN: You have an opening statement?
14 ---oOo---
15 DIRECT EXAMINATION OF THE NATURAL HERITAGE INSTITUTE
16 BY MR. THOMAS
17 MR. THOMAS: Good morning, Mr. Brown and Ms. Forster
18 and State Board staff. I am, for the record, Greg A. Thomas
19 of the Natural Heritage Institute.
20 We are also presenting this testimony on behalf of the
21 Bay Institute of San Francisco. We do have a brief opening
22 statement, and then we would like to present testimony of
23 just one witness, Mr. Fullerton.
24 To make this morning more pleasant for our reporter, I
25 have a copy of the opening statement, which I can send down
CAPITOL REPORTERS (916) 923-5447 9927
1 to her.
2 The Natural Heritage Institute is pleased to present
3 today testimony and exhibits regarding the relationship
4 between the narrative objective in the Bay-Delta Water
5 Quality Control Plan and the eight implementation
6 alternatives evaluated in the Environmental Impact Report.
7 While this testimony is pertinent to Phase A, it applies
8 generally to all phases and to the ultimate decision on the
9 Board on a preferred EIR alternative and a final water
10 rights order.
11 We choose to present this testimony at this phase
12 because it is important, we believe, to keep our eyes on the
13 prize as we move through this proceeding.
14 The ultimate biological aiming point for the Bay-Delta
15 system is enshrined in similar terms in both state and
16 federal law. The federal policy is found in Section 3406
17 (b)(1) of the Central Valley Project Improvement Act. The
18 state version was established by the State Board itself as
19 the narrative standard in the Bay-Delta Water Quality
20 Control Plan. It reads as follows:
21 Water quality conditions shall be maintained,
22 together with other measures in the
23 watershed, sufficient to achieve a doubling
24 of natural production of chinook salmon from
25 the average production of 1968 to 1991,
CAPITOL REPORTERS (916) 923-5447 9928
1 consistent with provisions of the state and
2 federal law. (Reading.)
3 In sum, throughout this proceeding as the State Board
4 resolves issues and makes choices, it needs to stay on
5 course and advance as far as possible towards this goal of
6 doubling salmon production. To be sure, measures upstream
7 of this Bay-Delta planning unit and measures other than
8 flow-dependent ones may also be necessary to get there. But
9 improving conditions in the Delta will continue to be the
10 centerpiece of an effective basinwide strategy simply
11 because the salmon's upstream access is blocked by dams on
12 most tributaries.
13 Thus, whatever the State Board can do within the
14 confines of this proceeding to advance that goal of doubling
15 of salmon it must do and not defer. While it is always
16 tempting to leave the hard decisions for later, when the
17 information on this complex biohydrologic system may be more
18 conclusive, the current opportunity to advance this goal
19 must not be lost.
20 Triennial reviews in the Bay-Delta context can take
21 decades. Remember that the current standards, the D-1485
22 standards, were adopted 20 years ago and have remained in
23 place notwithstanding two decades of documented decline in
24 the estuary. So, let's do all we can while we can.
25 In thinking about how to implement this narrative
CAPITOL REPORTERS (916) 923-5447 9929
1 standards, two legal observations are relevant. We will
2 develop these points at greater length in our closing brief
3 for this water rights proceeding. First, courts, all the
4 way to the United States Supreme Court, give narrative
5 objectives the same legal force and effect as numeric
6 objectives. See, for instance, the Public Utility District
7 Number 1 of Jefferson County versus Washington Department of
8 Ecology, decision by the United States Supreme Court.
9 Second, the State Board is not bound by the priority
10 water rights system in allocating responsibility among the
11 water users for meeting water quality requirements in the
12 estuary. We believe this to be the correct reading of
13 United States versus State Water Resources Control Board,
14 the Racanelli decision. Thus, it has legal latitude to
15 choose among the eight alternatives in the Environmental
16 Impact Report for this proceeding.
17 That EIR assesses eight alternative ways of
18 implementing the flow-dependent Water Quality Control Plan
19 objectives. If the State Board ultimately finds that
20 Alternative 8, the VAMP or San Joaquin River Agreement, does
21 provide equivalent protection of environmental resources
22 compared to the Water Quality Control Plan, then all of the
23 alternatives, except Number 7, attempt to fully implement
24 the numeric objectives of the basin plan and are, therefore,
25 viable alternatives for consideration.
CAPITOL REPORTERS (916) 923-5447 9930
1 In selecting an implementation program, NHI urges the
2 State Board to give the preference to alternatives that
3 contribute most to the achievement of the ultimate
4 biological aiming point for the estuary, namely the doubling
5 of natural salmon production as demanded by the narrative
6 objective.
7 Hence, our testimony today compares the flow conditions
8 that would result in the Bay-Delta tributaries under the
9 eight EIR alternatives with the tributary flow
10 recommendations included in the Anadromous Fish Restoration
11 Program's Working Paper on Restoration Needs: Habitat
12 Restoration Actions to Double Natural Production of
13 Anadromous Fish in the Central Valley of California, Volume
14 III, by the United States Fish and Wildlife Service.
15 In the case of the tributaries other than those
16 included in the San Joaquin River Agreement, that comparison
17 shows that Alternative Number 5, the equitable watershed
18 apportionment alternative, comes closest to implementing the
19 narrative objective.
20 In the case of San Joaquin tributaries, the superior
21 Delta export restrictions in the VAMP experiment may provide
22 salmon protections that are better than the EIR
23 alternatives, even though the San Joaquin River Agreement
24 Delta inflows are not as high as would occur under
25 Alternative 5.
CAPITOL REPORTERS (916) 923-5447 9931
1 Before turning to the testimony of David Fullerton, I
2 should say that other flow dependent and operational
3 measures in the Delta, other than the tributary flows, which
4 are the subject of today's testimony, have been identified
5 by the U.S. Fish and Wildlife Service as beneficial for
6 achieving the anadromous doubling goal. In later phases,
7 NHI may wish to present evidence on these measures and urge
8 their adoption in the water rights order. Prominent among
9 these is closure of the Delta cross-channel for more than 45
10 days during the fall and winter months to protect
11 up-migrating spring-run salmon and ramping of the Vernalis
12 springtime flows to protect fall-run salmon. We will leave
13 that testimony to another day.
14 Now that Mr. Fullerton has been sworn, let me ask you
15 to first state your name and employment for the record.
16 MR. FULLERTON: My name is David Fullerton. I am a
17 senior staff scientist for the Natural Heritage Institute.
18 MR. THOMAS: Calling your attention to NHI Exhibit
19 Number 1, which is captioned "David K. Fullerton, Senior
20 Staff Scientist, Natural Heritage Institute," is this a true
21 and accurate statement of your professional credentials and
22 experience?
23 MR. FULLERTON: Yes.
24 MR. THOMAS: Mr. Brown, for Mr. Fullerton's direct
25 testimony I am going to ask him to refer to the document
CAPITOL REPORTERS (916) 923-5447 9932
1 that is captioned, "Testimony of David K. Fullerton, Natural
2 Heritage Institute, Hearing Phase II-A." That document was
3 served on the Board and the parties on September 14th, but
4 it does not have an exhibit number appearing thereon. So
5 for the record, I would like to have that designated as NHI
6 Exhibit Number 4, and it will replace NHI Exhibit Number 2,
7 which was prepared for Phase IV, but deferred. We will not
8 enter Exhibit Number 2.
9 Mr. Fullerton, did you prepare NHI Exhibit Number 4 and
10 the graphs designated as NHI Exhibit Number 3?
11 MR. FULLERTON: Yes.
12 MR. THOMAS: Did you perform the analysis reflected in
13 those two exhibits?
14 MR. FULLERTON: Yes.
15 MR. THOMAS: Please explain the sources of the
16 information utilized in your analysis.
17 MR. FULLERTON: I used the State Water Resources
18 Control Board's Draft EIR for implementation of the 1995
19 Bay-Delta Water Quality Control Plan, Volume IV. And
20 indirectly I used data AFRP Working Paper on restoration.
21 MR. THOMAS: At this time I would like to ask you to
22 summarize your findings and conclusions from that analysis.
23 MR. FULLERTON: As I said, the data for my testimony
24 comes from the Draft EIR instrument from the State Water
25 Board, the revised chapter, which was published in May of
CAPITOL REPORTERS (916) 923-5447 9933
1 1998.
2 On these pages the State Board presents information on
3 how Alternatives 1 through 8 affect upstream flow levels in
4 various Central Valley rivers, in particular Table 6-30
5 through 6-39 compared to the ratio of model flows for the
6 tributaries, for these various tributaries and rivers, with
7 the AFRP recommendations at the same locations.
8 The goal of the flows recommended in the AFRP Working
9 Paper are similar to the mandates in the Water Quality
10 Control Plan narrative standard. However, they are not
11 identical. I want to make sure that there is no
12 misunderstanding on this point.
13 The State Board narrative standard refers only to
14 salmon. The AFRP flows refer to anadromous fish, so it is
15 broader, a broader definition that includes shad and green
16 sturgeon. That does affect the results somewhat. I will
17 discuss that as I get into the graphs.
18 What I have in Figures 1 through 8 are the ratio of
19 model flows to the recommended flows in the AFRP Working
20 Paper for the period of April through June; and I only put
21 it in for below normal, dry and critically dry years because
22 those are the years where the flows are most important and
23 those are the years where differences between alternatives
24 appear to be more significant.
25 So let me show you the graph, and I can explain a
CAPITOL REPORTERS (916) 923-5447 9934
1 little bit better what I am talking about. This is not a
2 rocket science here. I took the data from the EIR and put
3 it on graphs. That is the extent of my analysis. The rest
4 is interpretation.
5 You can see the top -- let me explain the various
6 axes. On the Y axis we have ratios, starting at .1 and goes
7 up to 1. If the ratio was one, then the AFRP flows for
8 April, May and June are being met at this location.
9 Along here are the various alternatives. Blue is the
10 below normal years. Pink are dry years, and the white are
11 your critical years. What you see is, when you compare
12 that, we expect to come out with different alternatives to
13 the AFRP flows, that Alternative 5 is superior on the
14 Feather River at Nicolaus. At the Yuba River at Marysville,
15 quite significantly higher, but it is lower at the American
16 River, at the H Street Bridge, and a number of the other
17 alternatives are approximately equivalent.
18 C.O. BROWN: Dave, those numbers are hard to see. You
19 might tell them on the Y axis what they are and where the
20 one is.
21 MR. FULLERTON: One is on the top here, so --
22 C.O. BROWN: Just a minute.
23 Mr. Johnston.
24 MR. JOHNSTON: Could Mr. Fullerton identify what graph
25 he is describing in the exhibit?
CAPITOL REPORTERS (916) 923-5447 9935
1 MR. FULLERTON: This top one is Figure 1 from the
2 testimony.
3 MR. THOMAS: From Exhibit 3.
4 MR. FULLERTON: This is Figure 2. The middle graph is
5 Figure 2, which is Yuba River at Marysville.
6 The bottom graphic here is Figure 3, which is the Lower
7 American River at H Street.
8 So, what you see is that in two cases, Alternative 5
9 appears to -- which is the -- I don't know what the
10 shorthand version of that is -- kind of fair share by
11 tributary approach. Appears to have better flows in two out
12 of three cases, but lower flows in the third case. In the
13 third case the American River, there are six other
14 alternatives that are also better.
15 One thing to note, this is a federally controlled
16 stream. You will see the same pattern emerging on the San
17 Joaquin side, as well.
18 C.O. BROWN: Pull that reflector back just a little
19 bit. You can turn the exhibit higher up on the screen. You
20 can see it better on the top.
21 MR. FULLERTON: Just to again make the correlation in
22 the testimony, on the upper left is the San Joaquin River at
23 Vernalis. This is the same chart, basically, with different
24 data.
25 On the upper right here is the Stanislaus River from
CAPITOL REPORTERS (916) 923-5447 9936
1 Goodwin Dam to the San Joaquin River. In the middle we have
2 the Tuolumne River from LaGrange Dam to the San Joaquin
3 River.
4 Figure 7, in the middle right, is the Merced from
5 Crocker Huffman Diversion to San Joaquin River.
6 On the bottom we have Figure 8, the San Joaquin River
7 at Stevinson.
8 We see some similar patterns emerging here.
9 Alternative 5 appears to be better on the San Joaquin River
10 at Vernalis compared to the AFRP standards. Appears to be
11 slightly superior for the Tuolumne River to Alternative 3.
12 Alternative 3 looks to be best for the Merced, with
13 Alternative 5 being the second best, and the others are
14 significantly below that.
15 Obviously, a fair share approach, which brings in water
16 from Friant Dam, is going to have the greatest chance of
17 reaching the AFRP on the San Joaquin main stem. Again, we
18 have Alternative 5 being not the best alternative. We are
19 really not even being close to being the best alternative,
20 really in only one case here, which is the Stanislaus, again
21 the federally controlled stream. I would guess that those
22 are because the Feds are paying more than their share on
23 these two rivers. So a fair share actually brings the
24 burdens elsewhere.
25 I want to address a little bit of how this would change
CAPITOL REPORTERS (916) 923-5447 9937
1 if instead of looking at all the anadromous species, which
2 the AFRP does, and looking just at salmon how these would
3 change. I did that analysis. It doesn't change things very
4 much. In some cases it looks better if you're just looking
5 at salmon, because the salmon standard is not always the
6 controlling standard. In some of these cases the fractions
7 are really low because the flow level requirements for the
8 AFRP are high because they are protecting shad or green
9 sturgeon. In some cases the graphs will shift upward.
10 On the San Joaquin side it doesn't really make any
11 difference. You are still not meeting the AFRP flows even
12 for salmon, so the same patterns exist here. It is that
13 just in some cases, in the case of the standard at Vernalis
14 and Stanislaus, these two, the fractions go higher. You are
15 doing better toward meeting the salmon AFRP recommendations
16 than you are toward the total AFRP recommendations.
17 If you did the same analysis on the Sacramento side,
18 what happens is that actually at the Feather, if you are
19 just looking at salmon, it looks as though the Feather
20 actually meets the AFRP standards for salmon, as far as I
21 could tell. This wasn't the correct control point to
22 actually look at that at Nicolaus. It should have been
23 further upstream. I can't remember the station now.
24 Yuba, the same pattern emerges where Alternative 5 is
25 the best for salmon. At the American River all the
CAPITOL REPORTERS (916) 923-5447 9938
1 alternatives now appear to meet the salmon AFRP flows. So
2 the one remaining hole in Sacramento is the Yuba River. It
3 appears, if we are just looking at salmon to do a direct
4 comparison with the narrative standard, in which case
5 Alternative 5 looks to be the best.
6 Based on the analysis then that was presented in the
7 State Water Board EIR, Alternative 5 comes the closest to
8 meet the AFRP Working Papers target flows. Alternative 5
9 also comes closest to meeting the State Board's own
10 narrative for salmon protection.
11 This fair share allocation or regulatory responsibility
12 reflected in Alternative 5 also best comports with
13 California law, we believe, on the proper allocation of
14 regulatory responsibility among water rights holders. And
15 NHI will be filing a legal brief on that issue.
16 We presented this analysis in order to assist the State
17 Board in selecting the EIR alternative that comes closest to
18 comprising a full implementation program for the Water
19 Quality Control Plan, including the narrative standard.
20 However, we do not contend that Alternative 5 should be
21 selected for the VAMP rivers instead of the San Joaquin
22 River Agreement, for which NHI participated in the
23 negotiations. That agreement, which is the EIR Alternative
24 8, would establish an experimental program to test the
25 biological responses to flow variations in the San Joaquin
CAPITOL REPORTERS (916) 923-5447 9939
1 River system, is designed to yield results that will better
2 characterize the flows needed to achieve the improvements in
3 salmon survival in this system that would satisfy the
4 narrative standard.
5 Also, the San Joaquin River Agreement contains
6 additional export restrictions that should compensate the
7 flow relative to the Water Quality Control Plan requirements
8 for other Delta tributaries. However, the EIR alternative
9 that best implements the narrative standard, which is
10 Alternative 5, should be considered the preferred
11 alternative in developing a water rights order to implement
12 the Water Quality Control Plan.
13 That concludes my testimony.
14 MR. THOMAS: Mr. Brown, that concludes NHI's direct
15 examination. Mr. Fullerton is available for
16 cross-examination.
17 C.O. BROWN: Let's see a show of hands of those who
18 want to cross.
19 Nomellini, Herrick.
20 MR. MINASIAN: Mr. Brown, can I ask a clarifying
21 question? There has been some testimony in regards to the
22 Sacramento and Feather. Do you want us to hold that back
23 for later phases?
24 C.O. BROWN: Mr. Minasian, that is fine. We will go
25 ahead and ask those.
CAPITOL REPORTERS (916) 923-5447 9940
1 MR. MINASIAN: Please withdraw my name.
2 MR. HITCHINGS: Mr. Brown, Andy Hitchings for Glenn
3 Colusa Irrigation District. To follow up on what Mr.
4 Minasian was pointing to, in the past when the testimony in
5 earlier phases touched on what is more appropriately a
6 subject of Phase 8, the parties have been provided the
7 opportunity to reserve their ability to cross-examine until
8 that phase. I want to clarify that is the procedure that
9 would be applied here.
10 C.O. BROWN: Do you have anything to add?
11 MS. LEIDIGH: Yes. I believe that that's been
12 something that is allowable at the option of the party
13 wanting to cross-examine. But it is not mandatory that they
14 wait to do it. And if they do wait to cross-examine a
15 witness, the Board's practice also is to require that the
16 party wanting to examine that witness call them as their own
17 witness.
18 C.O. BROWN: Do you understand that, Mr. Hitchings?
19 MR. HITCHINGS: I understand that. I think also in
20 the past the party presenting the testimony, if they were
21 contacted by the party that wanted to cross-examine, they
22 would make the witness available for cross-examination in
23 that later phase.
24 C.O. BROWN: That has been our practice here.
25 MS. LEIDIGH: I believe that has been the practice of
CAPITOL REPORTERS (916) 923-5447 9941
1 the Bureau of Reclamation. I don't know about the private
2 parties.
3 MR. HITCHINGS: I would suggest that it should be the
4 same procedure for the other parties, as well. I would
5 anticipate that NHI will be presenting this testimony in
6 VIII, anyway, since it is Phase VII.
7 MR. THOMAS: We'll certainly be glad to cooperate with
8 any approach that the Board Members prefer on this. We --
9 it was difficult to know when to present this testimony,
10 frankly, because it's pertinent to really all phases. And
11 so, you know, we chose to present it at this time. And all
12 this testimony is available at this time for
13 cross-examination. If parties prefer to examine some
14 elements of it later on, I am sure we can make Mr. Fullerton
15 available.
16 C.O. BROWN: You are going to have your choice, Mr.
17 Hitchings. Do you prefer to cross now?
18 MR. HITCHINGS: I think we would like to wait until
19 Phase VIII, do our cross-examination then.
20 C.O. BROWN: You do not have cross?
21 MR. HITCHINGS: Correct. You can take me off the list.
22 That reservation is for the Glenn Colusa Irrigation District
23 and the other Sacramento Valley users that we've been
24 cooperating with throughout this process.
25 C.O. BROWN: Anyone else wish to cross?
CAPITOL REPORTERS (916) 923-5447 9942
1 MR. MINASIAN: May I also join on behalf of all those
2 diverters that our office represents so that the record is
3 clear?
4 C.O. BROWN: You will hold your cross till then?
5 MR. MINASIAN: Yes.
6 C.O. BROWN: Mr. Nomellini, you are up.
7 ---oOo---
8 CROSS-EXAMINATION OF THE NATURAL HERITAGE INSTITUTE
9 BY CENTRAL DELTA PARTIES
10 BY MR. NOMELLINI
11 MR. NOMELLINI: Dante John Nomellini for Central Delta
12 Parties.
13 Mr. Fullerton, you explained that the AFRP objectives
14 and the narrative objective in the 1995 Water Quality
15 Control Plan are not the same. And you cited as examples
16 that the narrative objective in the plan deals with chinook
17 salmon and you mentioned that the AFRP deals with other
18 species such as shad and green sturgeon; is that correct?
19 MR. FULLERTON: Correct.
20 MR. NOMELLINI: Isn't it true that there are, in fact,
21 other species beyond shad and green sturgeon that are within
22 the scope of the AFRP?
23 MR. FULLERTON: I believe so.
24 MR. NOMELLINI: What might those be?
25 MR. FULLERTON: I believe that striped bass is
CAPITOL REPORTERS (916) 923-5447 9943
1 included. I am not sure beyond that.
2 MR. NOMELLINI: How about steelhead?
3 MR. FULLERTON: I believe it is, yeah.
4 MR. NOMELLINI: Do you consider steelhead to be salmon?
5 MR. FULLERTON: That is outside my expertise.
6 MR. NOMELLINI: When you talk about salmon, you are not
7 talking about steelhead?
8 MR. FULLERTON: I'm merely talking about what I see
9 published in the documents. I am not a biologist.
10 MR. NOMELLINI: In your consideration of your
11 recommendations of the various alternatives, did you take
12 into consideration the impacts on steelhead in evaluating
13 the flow recommendations for the San Joaquin River
14 tributaries?
15 MR. FULLERTON: No. I merely compared the model flows
16 to the AFRP recommendations. So, to the extent that those
17 would include consideration of steelhead then, indirectly, I
18 would have done so. But I merely took the published data
19 from the State Board EIR and put it on a graph.
20 MR. NOMELLINI: Does NHI have any concern for the
21 restoration of steelhead on the San Joaquin River system?
22 MR. FULLERTON: I would say yes.
23 MR. NOMELLINI: Do you have any plans to evaluate the
24 impact of the various alternatives on steelhead for the San
25 Joaquin River system?
CAPITOL REPORTERS (916) 923-5447 9944
1 MR. FULLERTON: No, we haven't planned that.
2 MR. NOMELLINI: In your negotiations related to the San
3 Joaquin River Agreement, did you take into consideration the
4 impact of that agreement on steelhead?
5 MR. FULLERTON: Not specifically, no.
6 MR. NOMELLINI: Now, you indicated that Alternative 5
7 comes the closest to meeting the AFRP flow requirements on
8 all but the Stanislaus River system; is that correct?
9 MR. FULLERTON: If you are looking on the San Joaquin
10 side. The American also.
11 MR. NOMELLINI: Focusing on the San Joaquin side, then,
12 it would be the superior alternative in terms of coming
13 closest to the AFRP flows, except for the Stanislaus?
14 MR. FULLERTON: It appears to be equivalent or slightly
15 inferior to Alternative 3 for the Merced.
16 MR. NOMELLINI: Then I believe I heard you correctly,
17 your testimony reflects you go from that to support of
18 Alternative 8 on the San Joaquin River system, which is the
19 San Joaquin River Agreement alternative because, in part, it
20 has, in your view, a superior restriction on export pumping;
21 is that correct?
22 MR. FULLERTON: I am not a biologist, and I don't know
23 that Alternative 8 is superior. I think it is plausible
24 that it provides equivalent protection, but that is
25 something that the State Board has to make a finding on.
CAPITOL REPORTERS (916) 923-5447 9945
1 And if they don't find that it does provide equivalent
2 protection to the Water Quality Control Plan, then I
3 wouldn't want them to implement it.
4 We are guided by other biologists whom we respect who
5 believe that the compensation provided by reduced exports is
6 significant and makes up for lower flows.
7 MR. NOMELLINI: Isn't it true that in your testimony
8 you're recommending to the Board Alternative 8 for the San
9 Joaquin River system?
10 MR. FULLERTON: With the proviso that the State Board
11 must find that it is biologically equivalent. We don't make
12 that assertion ourselves.
13 MR. NOMELLINI: You don't find it hard to impeach the
14 opening statement of your attorney, I guess. Strike that.
15 That's argument.
16 Let's focus in on this export restrictions. It is your
17 belief that if Alternative 5 was instituted that there would
18 be no restriction on export pumping beyond the restrictions
19 in the 1995 Water Quality Control Plan?
20 MR. FULLERTON: Yes.
21 MR. NOMELLINI: So you believe that the biological
22 opinion on Delta smelt, which restricts export pumping to
23 roughly one-half of the San Joaquin River flow during the
24 pulse period, would not be applicable, except if Alternative
25 8 were chosen?
CAPITOL REPORTERS (916) 923-5447 9946
1 MR. FULLERTON: No. I think, now that you say it, you
2 are correct. At least initially I think the biological
3 opinion that would exist would continue in place.
4 MR. NOMELLINI: If we were to make a fair comparison
5 among the alternatives presented in the Draft EIR of the
6 Board, we would have to add to Alternative 5 a reasonable
7 restriction on export pumping related to the biological
8 opinion, would we not?
9 MR. FULLERTON: For as long as that biological opinion
10 remains in place, which is up to other agencies.
11 MR. NOMELLINI: It may even depend on the number of
12 smelt that are produced in the system, would it not?
13 MR. FULLERTON: Yes.
14 MR. NOMELLINI: Is it your understanding that
15 Alternative 8 would not restore flows in the San Joaquin
16 River upstream of --
17 MR. FULLERTON: Main stem?
18 MR. NOMELLINI: Of Merced?
19 MR. FULLERTON: Correct, it would not.
20 MR. NOMELLINI: Even with that comparison, you would
21 still opt in favor of a San Joaquin River Agreement provided
22 it was found to be biologically sound by the Board?
23 MR. FULLERTON: If I felt that the Board was prepared
24 to rewater the San Joaquin River pursuant to Alternative 5,
25 I would prefer that.
CAPITOL REPORTERS (916) 923-5447 9947
1 MR. NOMELLINI: How about rewatering the San Joaquin
2 River upstream of the Merced to the Mendota Pool rather than
3 all the way to Friant, would you still find that to be a
4 preferable alternative to Alternative 8?
5 MR. FULLERTON: I don't feel like I'm qualified to
6 answer that.
7 MR. NOMELLINI: Okay.
8 Thank you. That is all I have, Mr. Chairman.
9 C.O. BROWN: Thank you, Mr. Nomellini.
10 Mr. Herrick.
11 ---oOo---
12 CROSS-EXAMINATION OF THE NATURAL HERITAGE INSTITUTE
13 BY SOUTH DELTA WATER AGENCY
14 BY MR. HERRICK
15 MR. HERRICK: Mr. Chairman, John Herrick for the South
16 Delta Water Agency.
17 Mr. Fullerton, I notice in your testimony you state
18 that the San Joaquin River Agreement included a commitment
19 by the federal government to purchase additional water in
20 order to meet the VAMP target flows.
21 Are you familiar with the San Joaquin River Agreement?
22 MR. FULLERTON: Reasonably, yes.
23 MR. HERRICK: I don't have an extra copy. That
24 document, as I read it, does talk about the ability or the
25 ability of the Bureau to buy extra water, but I don't see
CAPITOL REPORTERS (916) 923-5447 9948
1 any obligation to by extra water. I am excluding the two
2 separate purchases that are listed from Merced and
3 Oakdale.
4 Do you read that differently than I do?
5 MR. FULLERTON: As I read the document, and I am not a
6 lawyer either, the federal government is effectively
7 assuring that the standard will be met to the best of its
8 ability. And to the extent that the water provided by the
9 tributaries agencies is inadequate to meet the targets
10 called for in the standard, I believe the federal government
11 has committed to make best-faith efforts to buy additional
12 water to meet the targets.
13 MR. HERRICK: We heard testimony from the fishery panel
14 provided by San Joaquin River Group Authority with regard to
15 preferences as to having water at the low end of the flow
16 schedule as opposed to the high end of the flow schedule.
17 Did you hear that testimony?
18 MR. FULLERTON: No, I did not.
19 MR. HERRICK: Are you familiar with the San Joaquin
20 River Agreement's provision that provides for a relaxation
21 of the commitment to provide flows depending on previous and
22 current year types?
23 MR. FULLERTON: Yes. The scoring system, if you get
24 below five points or something, yeah.
25 MR. HERRICK: Does NHI have a position on the ability
CAPITOL REPORTERS (916) 923-5447 9949
1 of the parties to the agreement to escape responsibility for
2 meeting those flows depending on the year type?
3 MR. FULLERTON: Maybe Greg could answer that better
4 than I could.
5 C.O. BROWN: Should we swear Mr. Thomas in?
6 MR. THOMAS: It strikes me that this is beyond the
7 scope of direct testimony, is it not? I don't understand
8 the pertinence of the question.
9 MR. HERRICK: It is my understanding that
10 cross-examination is not limited to the direct testimony in
11 cases in chief.
12 C.O. BROWN: That's correct, Mr. Thomas. We have
13 allowed broad discretion in cross here.
14 Ask the question again and let's see how it comes up.
15 MR. HERRICK: Let me rephrase it.
16 As Mr. Nomellini was asking you, NHI generally supports
17 the San Joaquin River Agreement if the Board finds that it
18 is equivalent to the Water Quality Control Plan; is that
19 correct?
20 MR. THOMAS: That is --
21 MR. O'LAUGHLIN: I object.
22 C.O. BROWN: Mr. Thomas.
23 MR. O'LAUGHLIN: I would like to object. Mr. Thomas
24 has not been called as a witness and can't testify. So I
25 would like that response stricken from the record.
CAPITOL REPORTERS (916) 923-5447 9950
1 MR. HERRICK: I was asking Mr. Fullerton. There is no
2 question for Mr. Thomas or an answer.
3 C.O. BROWN: Mr. Herrick, ask the question again to Mr.
4 Fullerton.
5 MR. HERRICK: Is my understanding from your direct and
6 from the cross we just had that NHI supports the San Joaquin
7 River Agreement for the San Joaquin River portion of the
8 Water Quality Control Plan if the Board finds that that is
9 an equivalent protection under the Water Quality Control
10 Plan; is that correct?
11 MR. FULLERTON: We haven't made a final decision to
12 sign the document yet. In general, we negotiated in good
13 faith and in general we are supportive of it. We haven't
14 made a final decision on whether we are going to sign the
15 document.
16 MR. HERRICK: Are you assuming that the Bureau will buy
17 some additional amount of water sufficient to meet the VAMP
18 flows in those years when the obligation is relaxed pursuant
19 to the water year types?
20 MR. FULLERTON: No.
21 MR. HERRICK: Can you explain to me why you might
22 prefer Alternative 8, then, if other alternatives do provide
23 the water at the low end of the flow schedule?
24 MR. FULLERTON: Well, taken as a whole, as we view it,
25 there are two factors in play. One is flow levels coming
CAPITOL REPORTERS (916) 923-5447 9951
1 down the tributaries. The other is export levels which
2 entrain fish when they reach the Delta.
3 Looking at all the factors in total, rather than
4 individual pieces, it appears that there is offset being
5 provided by Alternative 8, because it does have lower export
6 standards. In an individual year it may perform better or
7 less well, than other alternatives. Taken as a whole, it
8 appears, you know -- not being a biologist, it appears it is
9 in the same ballpark.
10 MR. HERRICK: I take it by that, then, you are assuming
11 that the export limitations contained in the San Joaquin
12 River Agreement are, I use the word, "superior" to the
13 current export limitation in the biological opinion for
14 Delta smelt?
15 MR. FULLERTON: I am not convinced that the current
16 export standards in the biological opinion are going to
17 continue for the next 12 years. This puts this into a
18 standard, rather than into a biological opinion. So, I
19 don't know if it's markedly superior to what is already in
20 the biological opinion. But it now takes the form of a
21 standard promulgated by the State Board, if it is endorsed
22 here.
23 MR. HERRICK: Is it your understanding that adoption of
24 the San Joaquin Agreement changes the export limitations in
25 the Water Quality Control Plan?
CAPITOL REPORTERS (916) 923-5447 9952
1 MR. FULLERTON: If that's a legal question, I am not
2 qualified to answer that.
3 MR. HERRICK: The only reason I asked that is that you
4 said if they adopted, then it becomes the standard, not the
5 biological opinion.
6 MR. FULLERTON: Perhaps I misspoke. To the extent that
7 it becomes binding for 12 years, then that is 12 years of
8 protection that we can reasonably rely on.
9 MR. HERRICK: Do you have any concerns that other
10 provisions of the San Joaquin River Agreement could
11 interrupt or interfere with those export limitations?
12 MR. FULLERTON: Could you be more specific?
13 MR. HERRICK: I don't want to get into it, but are you
14 familiar with the San Joaquin River Agreement's portion
15 which allows parties to object to that year's export plan?
16 MR. FULLERTON: Yes.
17 MR. HERRICK: Does that concern you if you are relying
18 on the export limitations as one of the reasons for
19 endorsing that?
20 MR. FULLERTON: It does concern me, which is one of the
21 reasons we have tried to insist that the State Board
22 immediately go in to reinitiate the water rights proceeding
23 if that happened.
24 MR. HERRICK: Does NHI have any position regarding the
25 balancing of competing water quality interests?
CAPITOL REPORTERS (916) 923-5447 9953
1 MR. FULLERTON: Not specifically, no, I wouldn't say.
2 MR. HERRICK: Let's say there is there is a finite
3 amount of water in some reservoir and in some stream, and
4 there is a fishery obligation and a water quality
5 obligation, by water quality I mean agricultural water
6 quality standard, does NHI have a position as to which one
7 of those should prevail or get more or be preferred?
8 MR. FULLERTON: I wouldn't say we have a black and
9 white position. We are an environmental organization. In
10 general, we are going to have a bias toward fish. I
11 wouldn't say that we have a hard line that we draw
12 uniformly.
13 MR. HERRICK: Are you familiar with the modeling
14 results that have been done by the San Joaquin River Group's
15 consultants regarding the effects of the implementation of
16 their agreement?
17 MR. FULLERTON: I would say, no, not really.
18 MR. HERRICK: Have you heard, according to the modeling
19 done by the Bureau for their -- let me back up.
20 Do you understand that the Bureau's Interim Operation
21 Plan is part of the San Joaquin River Agreement operations?
22 MR. FULLERTON: Yes.
23 MR. HERRICK: Are you familiar with the Bureau's
24 modeling results that show that under the San Joaquin River
25 Agreement approximately 40 percent of the year types there
CAPITOL REPORTERS (916) 923-5447 9954
1 would be water quality violations at Vernalis?
2 MR. FULLERTON: I've heard -- I am not familiar with
3 it. I've heard things to that effect.
4 MR. HERRICK: Does NHI believe that it's acceptable to
5 implement a Water Quality Control Plan that is anticipated
6 to have 40 percent violations of one of the standards?
7 MR. FULLERTON: It is not something we discussed
8 internally.
9 MR. HERRICK: Under your -- I am going to read to you a
10 portion of the San Joaquin River Agreement. This is under
11 Section 12.1. And it says, I'm omitting the first few
12 clauses of that:
13 The San Joaquin River Group Authority,
14 neither will they have an obligation under
15 the 1995 Water Quality Control Plan to
16 mitigate the impacts on water quality
17 resulting from any reduction in flows in the
18 San Joaquin River or its tributaries.
19 (Reading.)
20 Have you seen that portion of the document?
21 MR. FULLERTON: Yes, I think I have.
22 MR. HERRICK: Let's just do a hypothetical. Let's say
23 that implementation of the San Joaquin River Agreement does
24 result in water quality impacts due to reductions in flows.
25 That is the hypothetical.
CAPITOL REPORTERS (916) 923-5447 9955
1 Does NHI agree with that provision of the agreement
2 that excludes those people from -- those parties from
3 mitigating those consequences?
4 MR. FULLERTON: I don't know. I think our position has
5 been that the law must be obeyed. To the extent these are
6 impacts that are legally improper, then people have
7 recourse.
8 MR. HERRICK: I understand we are touching upon a legal
9 area, and I don't mean to test you on your legal knowledge.
10 But would you endorse an agreement that results in the
11 shifting of those mitigation obligations to parties that
12 didn't cause them?
13 MR. FULLERTON: I think people should obey the law. To
14 the extent that the water quality changes are against the
15 law, then they shouldn't be allowed.
16 MR. HERRICK: Excuse me for jumping back. We talked
17 about either the obligation or the possibility that the
18 Bureau might buy additional water supplies during the
19 operation of the San Joaquin River Agreement. Do you recall
20 that?
21 MR. FULLERTON: Yes.
22 MR. HERRICK: Do you accept the assumption that
23 additional purchases for release during the pulse flow
24 period may -- I say may not -- well, may cause decreases in
25 flows during other times of the year?
CAPITOL REPORTERS (916) 923-5447 9956
1 MR. FULLERTON: It is possible.
2 MR. HERRICK: Do you believe those impacts should be
3 analyzed before the program is adopted?
4 MR. FULLERTON: Before the purchase is made, I would
5 say.
6 MR. HERRICK: How about in these proceedings where the
7 State Board is considering adopting that, and there are
8 proposed additional purchases, do you believe that the State
9 Board should adopt this before those additional purchases
10 are analyzed?
11 MR. FULLERTON: I don't know. It is a good question.
12 I have to think about that more.
13 MR. HERRICK: On your tables, or your graphs, you're
14 comparing the various flows under the various alternative
15 against AFRP flows; is that correct?
16 MR. FULLERTON: Correct.
17 MR. HERRICK: Excuse my lack of familiarity with the
18 AFRP Working Paper, are the amounts you are comparing pulse
19 flow amounts or year-round amounts?
20 MR. FULLERTON: These are average flows for the months
21 April, May, June. So, I am just following methodology that
22 was used by the Board in its EIR. They took April, May,
23 June, summed up what the model flows were and summed up what
24 the AFRP recommendations were for those months and compared
25 them in a ratio.
CAPITOL REPORTERS (916) 923-5447 9957
1 MR. HERRICK: Do the AFRP flows for the Stanislaus
2 River, do they exceed 1500 cfs at any time?
3 MR. FULLERTON: I don't know. I could find out.
4 Yes, it looks like for the Stanislaus from Goodwin to
5 the confluence in April and May and June for some of the
6 wetter, below normal up through wet years it does exceed
7 1500.
8 MR. HERRICK: Is it your understanding that the various
9 alternatives considered by the Board limit flows to 1500 cfs
10 on the Stanislaus?
11 MR. FULLERTON: I don't know.
12 MR. HERRICK: Does NHI suggest that a longer than
13 30-day pulse flow should be adopted?
14 MR. FULLERTON: You mean the April/May pulse flow?
15 MR. HERRICK: Yes.
16 MR. FULLERTON: Not as part of these proceedings, no.
17 MR. HERRICK: Maybe I missing something. What I am
18 getting at, if you are comparing an average of April, May,
19 and June flows to the alternatives, are we comparing more
20 than a 30-day flow against a 30-day flow? Is that what we
21 are comparing on these graphs?
22 MR. FULLERTON: It all kind of gets averaged out. So,
23 you would be picking up a pulse, but you would also be
24 picking up other flows before and after the pulse flow
25 period.
CAPITOL REPORTERS (916) 923-5447 9958
1 MR. HERRICK: Is your understanding that
2 notwithstanding the Board's adoption of the Water Quality
3 Control Plan that the Bureau will attempt to implement the
4 AFRP flows anyway?
5 MR. FULLERTON: I believe -- well, I don't know. I
6 assume that is part of the CVPIA requirements, but I don't
7 actually know that.
8 MR. HERRICK: That is all I have.
9 Thank you, Mr. Chairman.
10 C.O. BROWN: Thank you, Mr. Herrick.
11 Mr. Thomas, do you have redirect?
12 MR. THOMAS: No, no redirect, Mr. Brown.
13 C.O. BROWN: Staff.
14 MR. HOWARD: No.
15 MS. LEIDIGH: No.
16 C.O. BROWN: Would you like to offer your exhibits into
17 evidence?
18 MR. THOMAS: Yes. At this time we would like to offer
19 into the record NHI exhibits Number 1, Number 2 -- I am
20 sorry, not Number 2. Number 1, Number 3 and Number 4.
21 MS. WHITNEY: That is right.
22 C.O. BROWN: Any objections to the offering of those
23 exhibits?
24 Seeing none, they are so accepted.
25 Thank you, Mr. Thomas.
CAPITOL REPORTERS (916) 923-5447 9959
1 Thank you, Mr. Fullerton, very much.
2 That then concludes our morning session. We have
3 rebuttal that starts on the 16th at 9:00 a.m. I will run
4 down the list for your reminder if you are not sure where
5 you are on the rebuttal.
6 I have the Regional Council of Rural Counties, Mr.
7 Jackson up first.
8 And then Save the Bay Association, Ms. Koehler.
9 Natural Heritage Institute, Mr. Thomas.
10 South Delta Water Agency, Mr. Herrick.
11 Merced Irrigation District.
12 City of Stockton.
13 Central Delta parties.
14 Department of Water Resources.
15 Department of Fish and Game.
16 U.S. Department of the Interior.
17 San Joaquin River Group Authority.
18 Westlands Water District.
19 Stockton East Water District.
20 And San Joaquin River Exchange Contractors Water
21 Authority.
22 Did I miss anyone?
23 Does anyone not wish to participate in the rebuttal?
24 MR. THOMAS: Mr. Brown, I can say for NHI that we will
25 not be presenting rebuttal testimony.
CAPITOL REPORTERS (916) 923-5447 9960
1 C.O. BROWN: Anyone else?
2 MR. NOMELLINI: Central Delta Water Parties will not be
3 presenting.
4 C.O. BROWN: No rebuttal for Mr. Roberts.
5 MR. NOMELLINI: For Nomellini, Central Delta Parties.
6 C.O. BROWN: Mr. Nomellini.
7 You weren't speaking for Mr. Roberts?
8 MR. NOMELLINI: No.
9 MR. HERRICK: South Delta's rebuttal will be very
10 small, if any. Anybody who is after me shouldn't plan on
11 mine taking very long.
12 C.O. BROWN: We've heard that before, Mr. Herrick.
13 MR. HERRICK: Thanks, I think.
14 MR. ROBINSON: Eric Robinson for the City of Stockton.
15 We will not be presenting any rebuttal.
16 C.O. BROWN: If there is no further business, we stand
17 adjourned.
18 (Hearing adjourned at 10:05 a.m.)
19 ---oOo---
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CAPITOL REPORTERS (916) 923-5447 9961
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 9927 through
14 9961 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 21st day of February
19 1999.
20
21
22
23
24 ______________________________
ESTHER F. WIATRE
25 CSR NO. 1564
CAPITOL REPORTERS (916) 923-5447 9962