STATE WATER RESOURCES CONTROL BOARD PUBLIC HEARING 1998 BAY-DELTA WATER RIGHTS HEARING HELD AT 901 P STREET SACRAMENTO, CALIFORNIA TUESDAY, FEBRUARY 16, 1999 9:00 A.M. Reported by: MARY GALLAGHER, CSR #10749 CAPITOL REPORTERS (916) 923-5447 1 APPEARANCES ---oOo--- 2 3 BOARD MEMBERS: 4 JAMES STUBCHAER, CO-HEARING OFFICER JOHN W. BROWN, CO-HEARING OFFICER 5 MARC DEL PIERO MARY JANE FORSTER 6 7 STAFF MEMBERS: 8 THOMAS HOWARD - Supervising Engineer VICTORIA A. WHITNEY - Senior Engineer 9 10 COUNSEL: 11 WILLIAM R. ATTWATER - Chief Counsel WALTER PETTIT - Executive Director 12 BARBARA LEIDIGH - Senior Staff Counsel 13 ---oOo--- 14 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 9964 1 REPRESENTATIVES 2 PRINCETON CODORA GLENN IRRIGATION DISTRICT, et al. 3 FROST, DRUP & ATLAS 4 134 West Sycamore STreet Willows, California 95988 5 BY: J. MARK ATLAS, ESQ. 6 JOINT WATER DISTRICTS: 7 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 8 Oroville, California 95965 BY: WILLIAM H. BABER, III, ESQ. 9 CALIFORNIA SPORTFISHING PROTECTION ALLIANCE: 10 ROBERT J. BAIOCCHI 11 P.O. Box 357 Quincy, California 95971 12 BELLA VISTA WATER DISTRICT: 13 BRUCE L. BELTON, ESQ. 14 2525 Park Marina Drive, Suite 102 Redding, California 96001 15 WESTLANDS WATER DISTRICT: 16 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 17 400 Capitol Mall, 27th Floor Sacramento, California 95814 18 BY: THOMAS W. BIRMINGHAM, ESQ. AMELIA MINABERRIGARAI, ESQ. 19 THE BAY INSTITUTE OF SAN FRANCISCO: 20 GRAY BOBKER 21 55 Shaver Street, Suite 330 San Rafael, California 94901 22 CITY OF ANTIOCH, et al.: 23 FREDERICK BOLD, JR., ESQ. 24 1201 California Street, Suite 1303 San Francisco, California 94109 25 CAPITOL REPORTERS (916) 923-5447 9965 1 REPRESENTATIVES 2 LEAGUE OF WOMEN VOTERS: 3 ROBERTA BORGONOVO 4 2480 Union Street San Francisco, California 94123 5 UNITED STATES DEPARTMENT OF THE INTERIOR: 6 OFFICE OF THE SOLICITOR 7 2800 Cottage Way, Roon E1712 Sacramento, California 95825 8 BY: ALF W. BRANDT, ESQ. 9 CALIFORNIA URBAN WATER AGENCIES: 10 BYRON M. BUCK 455 Capitol Mall, Suite 705 11 Sacramento, California 95814 12 RANCHO MURIETA COMMUNITY SERVICES DISTRICT: 13 MCDONOUGH, HOLLAND & ALLEN 555 Capitol Mall, 9th Floor 14 Sacramento, California 95814 BY: VIRGINIA A. CAHILL, ESQ. 15 CALIFORNIA DEPARTMENT OF FISH AND GAME: 16 OFFICE OF THE ATTORNEY GENERAL 17 1300 I Street, Suite 1101 Sacramento, California 95814 18 BY: MATTHEW CAMPBELL, ESQ. 19 NATURAL RESOURCES DEFENSE COUNCIL: 20 HAMILTON CANDEE, ESQ. 71 Stevenson Street 21 San Francisco, California 94105 22 ARVIN-EDISON WATER STORAGE DISTRICT, et al.: 23 DOOLEY HERR & WILLIAMS 3500 West Mineral King Avenue, Suite C 24 Visalia, California 93191 BY: DANIEL M. DOOLEY, ESQ. 25 CAPITOL REPORTERS (916) 923-5447 9966 1 REPRESENTATIVES 2 SACRAMENTO MUNICIPAL UTILITY DISTRICT: 3 LESLIE A. DUNSWORTH, ESQ. 4 6201 S Street Sacramento, California 95817 5 SOUTH SAN JOAQUIN IRRIGATION DISTRICT, et al.: 6 BRAY, GEIGER, RUDQUIST & NUSS 7 311 East Main Street, 4th Floor Stockton, California 95202 8 BY: STEVEN P. EMRICK, ESQ. 9 EAST BAY MUNICIPAL UTILITY DISTRICT: 10 EBMUD OFFICE OF GENERAL COUNSEL 375 Eleventh Street 11 Oakland, California 94623 BY: FRED ETHERIDGE, ESQ. 12 GOLDEN GATE AUDUBON SOCIETY: 13 ARTHUR FEINSTEIN 14 2530 San Pablo Avenue, Suite G Berkeley, California 94702 15 CONAWAY CONSERVANCY GROUP: 16 UREMOVIC & FELGER 17 P.O. Box 5654 Fresno, California 93755 18 BY: WARREN P. FELGER, ESQ. 19 THOMES CREEK WATER ASSOCIATION: 20 THOMES CREEK WATERSHED ASSOCIATION P.O. Box 2365 21 Flournoy, California 96029 BY: LOIS FLYNNE 22 COURT APPOINTED REPS OF WESTLANDS WD AREA 1, et al.: 23 LAW OFFICES OF SMILAND & KHACHIGIAN 24 601 West Fifth Street, Seventh Floor Los Angeles, California 90075 25 BY: CHRISTOPHER G. FOSTER, ESQ. CAPITOL REPORTERS (916) 923-5447 9967 1 REPRESENTATIVES 2 CITY AND COUNTY OF SAN FRANCISCO: 3 OFFICE OF THE CITY ATTORNEY 4 1390 Market Street, Sixth Floor San Francisco, California 94102 5 BY: DONN W. FURMAN, ESQ. 6 CAMP FAR WEST IRRIGATION DISTRICT, et al.: 7 DANIEL F. GALLERY, ESQ. 926 J Street, Suite 505 8 Sacramento, California 95814 9 BOSTON RANCH COMPANY, et al.: 10 J.B. BOSWELL COMPANY 101 West Walnut Street 11 Pasadena, California 91103 BY: EDWARD G. GIERMANN 12 SAN JOAQUIN RIVER GROUP AUTHORITY, et al.: 13 GRIFFIN, MASUDA & GODWIN 14 517 East Olive Street Turlock, California 95381 15 BY: ARTHUR F. GODWIN, ESQ. 16 NORTHERN CALIFORNIA WATER ASSOCIATION: 17 RICHARD GOLB 455 Capitol Mall, Suite 335 18 Sacramento, California 95814 19 PLACER COUNTY WATER AGENCY, et al.: 20 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 400 Capitol Mall, 27th Floor 21 Sacramento, California 95814 BY: JANET GOLDSMITH, ESQ. 22 ENVIRONMENTAL DEFENSE FUND: 23 THOMAS J. GRAFF, ESQ. 24 5655 College Avenue, Suite 304 Oakland, California 94618 25 CAPITOL REPORTERS (916) 923-5447 9968 1 REPRESENTATIVES 2 CALAVERAS COUNTY WATER DISTRICT: 3 SIMON GRANVILLE 4 P.O. Box 846 San Andreas, California 95249 5 CHOWCHILLA WATER DISTRICT, et al.: 6 GREEN, GREEN & RIGBY 7 P.O. Box 1019 Madera, California 93639 8 BY: DENSLOW GREEN, ESQ. 9 CALIFORNIA FARM BUREAU FEDERATION: 10 DAVID J. GUY, ESQ. 2300 River Plaza Drive 11 Sacramento, California 95833 12 SANTA CLARA VALLEY WATER DISTRICT: 13 MORRISON & FORESTER 755 Page Mill Road 14 Palo Alto, California 94303 BY: KEVIN T. HAROFF, ESQ. 15 CITY OF SHASTA LAKE: 16 ALAN N. HARVEY 17 P.O. Box 777 Shasta Lake, California 96019 18 COUNTY OF STANISLAUS: 19 MICHAEL G. HEATON, ESQ. 20 926 J Street Sacramento, California 95814 21 GORRILL LAND COMPANY: 22 GORRILL LAND COMPANY 23 P.O. Box 427 Durham, California 95938 24 BY: DON HEFFREN 25 CAPITOL REPORTERS (916) 923-5447 9969 1 REPRESENTATIVES 2 SOUTH DELTA WATER AGENCY: 3 JOHN HERRICK, ESQ. 4 3031 West March Lane, Suite 332 East Stockton, California 95267 5 COUNTY OF GLENN: 6 NORMAN Y. HERRING 7 525 West Sycamore Street Willows, California 95988 8 REGIONAL COUNCIL OF RURAL COUNTIES: 9 MICHAEL B. JACKSON 10 1020 Twelfth Street, Suite 400 Sacramento, California 95814 11 DEER CREEK WATERSHED CONSERVANCY: 12 JULIE KELLY 13 P.O. Box 307 Vina, California 96092 14 DELTA TRIBUTARY AGENCIES COMMITTEE: 15 MODESTO IRRIGATION DISTRICT 16 P.O. Box 4060 Modesto, California 95352 17 BY: BILL KETSCHER 18 SAVE THE SAN FRANCISCO BAY ASSOCIATION: 19 SAVE THE BAY 1736 Franklin Street 20 Oakland, California 94612 BY: CYNTHIA L. KOEHLER, ESQ. 21 BATTLE CREEK WATERSHED LANDOWNERS: 22 BATTLE CREEK WATERSHED CONSERVANCY 23 P.O. Box 606 Manton, California 96059 24 25 CAPITOL REPORTERS (916) 923-5447 9970 1 REPRESENTATIVES 2 BUTTE SINK WATERFOWL ASSOCIATION, et al.: 3 MARTHA H. LENNIHAN, ESQ. 4 455 Capitol Mall, Suite 300 Sacramento, California 95814 5 CITY OF YUBA CITY: 6 WILLIAM P. LEWIS 7 1201 Civic Center Drive Yuba City, California 95993 8 BROWNS VALLEY IRRIGTAION DISTRICT, et al.: 9 BARTKIEWICZ, KRONICK & SHANAHAN 10 1011 22nd Street, Suite 100 Sacramento, California 95816 11 BY: ALAN B. LILLY, ESQ. 12 CONTRA COSTA WATER DISTRICT: 13 BOLD, POLISNER, MADDOW, NELSON & JUDSON 500 Ygnacio Valley Road, Suite 325 14 Walnut Creek, California 94596 BY: ROBERT B. MADDOW, ESQ. 15 GRASSLAND WATER DISTRICT: 16 DON MARCIOCHI 17 22759 South Mercey Springs Road Los Banos, California 93635 18 SAN LUIS CANAL COMPANY: 19 FLANAGAN, MASON, ROBBINS & GNASS 20 3351 North M Street, Suite 100 Merced, California 95344 21 BY: MIICHAEL L. MASON, ESQ. 22 STONY CREEK BUSINESS AND LAND OWNERS COALITION: 23 R.W. MCCOMAS 4150 County Road K 24 Orland, California 95963 25 CAPITOL REPORTERS (916) 923-5447 9971 1 REPRESENTATIVES 2 TRI-DAM POWER AUTHORITY: 3 TUOLUMNE UTILITIES DISTRICT 4 P.O. Box 3728 Sonora, California 95730 5 BY: TIM MCCULLOUGH 6 DELANO-EARLIMART IRRIGATION DISTRICT, et al.: 7 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 8 Oroville, California 95965 BY: JEFFREY A. MEITH, ESQ. 9 HUMANE FARMING ASSOCIATION: 10 BRADLEY S. MILLER. 11 1550 California Street, Suite 6 San Francisco, California 94109 12 CORDUA IRRIGATION DISTRICT, et al.: 13 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 14 P.O. Box 1679 Oroville, California 95965 15 BY: PAUL R. MINASIAN, ESQ. 16 EL DORADO COUNTY WATER AGENCY: 17 DE CUIR & SOMACH 400 Capitol Mall, Suite 1900 18 Sacramento, California 95814 BY: DONALD B. MOONEY, ESQ. 19 GLENN COUNTY FARM BUREAU: 20 STEVE MORA 21 501 Walker Street Orland, California 95963 22 MODESTO IRRIGATION DISTRICT: 23 JOEL MOSKOWITZ 24 P.O. Box 4060 Modesto, California 95352 25 CAPITOL REPORTERS (916) 923-5447 9972 1 REPRESENTATIVES 2 PACIFIC GAS & ELECTRIC: 3 RICHARD H. MOSS, ESQ. 4 P.O. Box 7442 San Francisco, California 94120 5 CENTRAL DELTA WATER AGENCY, et al.: 6 NOMELLINI, GRILLI & MCDANIEL 7 P.O. Box 1461 Stockton, California 95201 8 BY: DANTE JOHN NOMELLINI, ESQ. and 9 DANTE JOHN NOMELLINI, JR., ESQ. 10 TULARE LAKE BASIN WATER STORAGE UNIT: 11 MICHAEL NORDSTROM 1100 Whitney Avenue 12 Corcoran, California 93212 13 AKIN RANCH, et al.: 14 DOWNEY, BRAND, SEYMOUR & ROHWER 555 Capitol Mall, 10th Floor 15 Sacramento, California 95814 BY: KEVIN M. O'BRIEN, ESQ. 16 OAKDALE IRRIGATION DISTRICT: 17 O'LAUGHLIN & PARIS 18 870 Manzanita Court, Suite B Chico, California 95926 19 BY: TIM O'LAUGHLIN, ESQ. 20 SIERRA CLUB: 21 JENNA OLSEN 85 Second Street, 2nd Floor 22 San Francisco, California 94105 23 YOLO COUNTY BOARD OF SUPERVISORS: 24 LYNNEL POLLOCK 625 Court Street 25 Woodland, California 95695 CAPITOL REPORTERS (916) 923-5447 9973 1 REPRESENTATIVES 2 PATRICK PORGENS & ASSOCIATES: 3 PATRICK PORGENS 4 P.O. Box 60940 Sacramento, California 95860 5 BROADVIEW WATER DISTRICT, et al.: 6 DIANE RATHMANN 7 P.O. Box 156 Dos Palos, California 93620 8 FRIENDS OF THE RIVER: 9 BETSY REIFSNIDER 10 128 J Street, 2nd Floor Sacramento, California 95814 11 MERCED IRRIGATION DISTRICT: 12 FLANAGAN, MASON, ROBBINS & GNASS 13 P.O. Box 2067 Merced, California 95344 14 BY: KENNETH M. ROBBINS, ESQ. 15 CENTRAL SAN JOAQUIN WATER CONSERVATION DISTRICT: 16 REID W. ROBERTS, ESQ. 311 East Main Street, Suite 202 17 Stockton, California 95202 18 METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA: 19 JAMES F. ROBERTS P.O. Box 54153 20 Los Angeles, California 90054 21 SACRAMENTO AREA WATER FORUM: 22 CITY OF SACRAMENTO 980 9th Street, 10th Floor 23 Sacramento, California 95814 BY: JOSEPH ROBINSON, ESQ. 24 25 CAPITOL REPORTERS (916) 923-5447 9974 1 REPRESENTATIVES 2 TUOLUMNE RIVER PRESERVATION TRUST: 3 NATURAL HERITAGE INSTITUTE 4 114 Sansome Street, Suite 1200 San Francisco, California 94194 5 BY: RICHARD ROOS-COLLINS, ESQ. 6 CALIFORNIA DEPARTMENT OF WATER RESOURCES: 7 DAVID A. SANDINO, ESQ. P.O. Box 942836 8 Sacramento, California 94236 9 FRIANT WATER USERS AUTHORITY: 10 GARY W. SAWYERS, ESQ. 575 East Alluvial, Suite 101 11 Fresno, California 93720 12 KERN COUNTY WATER AGENCY: 13 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 400 Captiol Mall, 27th Floor 14 Sacramento, California 95814 BY: CLIFFORD W. SCHULZ, ESQ. 15 SAN JOAQUIN RIVER EXCHANGE CONTRACTORS: 16 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 17 P.O. Box 1679 Oroville, California 95965 18 BY: MICHAEL V. SEXTON, ESQ. 19 SAN JOAQUIN COUNTY: 20 NEUMILLER & BEARDSLEE P.O. Box 20 21 Stockton, California 95203 BY: THOMAS J. SHEPHARD, SR., ESQ. 22 CITY OF STOCKTON: 23 DE CUIR & SOMACH 24 400 Capitol Mall, Suite 1900 Sacramento, California 95814 25 BY: PAUL S. SIMMONS, ESQ. CAPITOL REPORTERS (916) 923-5447 9975 1 REPRESENTATIVES 2 ORLAND UNIT WATER USERS' ASSOCIATION: 3 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 4 P.O. Box 1679 Oroville, California 95965 5 BY: M. ANTHONY SOARES, ESQ. 6 GLENN-COLUSA IRRIGATION DISTRICT: 7 DE CUIR & SOMACH 400 Capitol Mall, Suite 1900 8 Sacramento, California 95814 BY: STUART L. SOMACH, ESQ. 9 NORTH SAN JOAQUIN WATER CONSERVATION DISTRICT: 10 JAMES F. SORENSEN CONSULTING CIVIL ENGINEER, INC.: 11 209 South Locust Street Visalia, California 93279 12 BY: JAMES F. SORENSEN 13 PARADISE IRRIGATION DISTRICT: 14 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 15 Oroville, California 95965 BY: WILLIAM H. SPRUANCE, ESQ. 16 COUNTY OF COLUSA: 17 DONALD F. STANTON, ESQ. 18 1213 Market Street Colusa, California 95932 19 COUNTY OF TRINITY: 20 COUNTY OF TRINITY - NATURAL RESOURCES 21 P.O. Box 156 Hayfork, California 96041 22 BY: TOM STOKELY 23 CITY OF REDDING: 24 JEFFERY J. SWANSON, ESQ. 2515 Park Marina Drive, Suite 102 25 Redding, California 96001 CAPITOL REPORTERS (916) 923-5447 9976 1 REPRESENTATIVES 2 TULARE IRRIGATION DISTRICT: 3 TEHEMA COUNTY RESOURCE CONSERVATION DISTRICT 4 2 Sutter Street, Suite D Red Bluff, California 96080 5 BY: ERNEST E. WHITE 6 STATE WATER CONTRACTORS: 7 BEST BEST & KREIGER P.O. Box 1028 8 Riverside, California 92502 BY: CHARLES H. WILLARD 9 COUTNY OF TEHEMA, et al.: 10 COUNTY OF TEHEMA BOARD OF SUPERVISORS 11 P.O. Box 250 Red Bluff, California 96080 12 BY: CHARLES H. WILLARD 13 MOUNTAIN COUNTIES WATER RESOURCES ASSOCIATION: 14 CHRISTOPHER D. WILLIAMS P.O. Box 667 15 San Andreas, California 95249 16 JACKSON VALLEY IRRIGATION DISTRICT: 17 HENRY WILLY 6755 Lake Amador Drive 18 Ione, California 95640 19 SOLANO COUNTY WATER AGENCY, et al.: 20 HERUM, CRABTREE, DYER, ZOLEZZI & TERPSTRA 2291 West March Lane, S.B. 100 21 Stockton, California 95207 BY: JEANNE M. ZOLEZZI, ESQ. 22 23 ---oOo--- 24 25 CAPITOL REPORTERS (916) 923-5447 9977 1 I N D E X 2 ---oOo--- 3 4 PAGE 5 OPENING OF HEARING 9979 6 AFTERNOON SESSION 10066 7 END OF PROCEEDINGS 10170 8 REBUTTAL TESTIMONY OF THE DEPARTMENT OF THE INTERIOR: 9 JOHN RENNING 9987 10 CROSS-EXAMINATION OF THE DEPARTMENT OF THE INTERIOR: 11 JOHN HERRICK 10013 12 DANTE JOHN NOMELLINI 10071 BILL HASENCAMP 10113 13 ALAN LILLY 10119 MICHAEL JACKSON 10127 14 BY STAFF 10158 BY THE BOARD 10161 15 16 ---oOo--- 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 9978 1 TUESDAY, FEBRUARY 16, 1999, 9:00 A.M. 2 SACRAMENTO, CALIFORNIA 3 ---oOo--- 4 C.O. STUBCHAER: Good morning, we'll reconvene the 5 Bay-Delta Hearing. Today is scheduled for rebuttal 6 testimony for Phase II-A. And the order of rebuttal was 7 posted on the net, and first is the Regional Council of 8 Rural Counties by Michael Jackson and then followed by Save 9 San Francisco Bay Association Cynthia Koehler, and then the 10 Natural Heritage Institute has waived rebuttal. And 11 following that would be the South Delta Water Agency with 12 Mr. Herrick. And as we look around the room we don't see 13 the first two parties here. 14 So, Mr. Herrick, are you ready to put on your 15 rebuttal? 16 MR. HERRICK: As I said the prior week, we were 17 considering whether or not doing it and just holding a 18 space, and we've decided not to put on any rebuttal 19 witnesses. 20 C.O. STUBCHAER: Okay. Merced Irrigation District, 21 Mr. Robbins -- oh, there's Mr. Jackson. 22 Good morning, Mr. Jackson. 23 MR. JACKSON: Yes, Mr. Stubchaer. I apologize, but 24 I'm not going to have any rebuttal evidence. 25 C.O. STUBCHAER: All right. Thank you. Let's see, CAPITOL REPORTERS (916) 923-5447 9979 1 Mr. Robbins. 2 MR. GODWIN: Merced Irrigation District is going to 3 go with the San Joaquin River Group, so their testimony 4 will be part of our rebuttal testimony. 5 C.O. STUBCHAER: All right. 6 C.O. BROWN: Going down the list really quickly here, 7 Mr. Chairman. 8 C.O. STUBCHAER: Yes, we're really making progress. 9 Mr. Brown set this up really well while I was gone last 10 week. 11 The City of Stockton has no rebuttal. Central 12 Delta Parties have no rebuttal. Department of Water 13 Resources. 14 Mr. Sandino. 15 MR. SANDINO: We've decided we do not have a rebuttal 16 case either. 17 C.O. STUBCHAER: All right. Department of Fish and 18 Game, Mr. Campbell. 19 MR. CAMPBELL: No rebuttal. 20 C.O. STUBCHAER: Mr. Brandt, Department of Interior. 21 MR. BRANDT: Well, since we were like ninth or 22 something I thought we were not going to be called this 23 morning. We could put on -- we don't have all of our 24 witnesses here this morning. 25 We could put on Mr. Renning this morning. We're CAPITOL REPORTERS (916) 923-5447 9980 1 just finishing up -- Mr. Renning was going to go back this 2 morning and finish up and print out copies of his written 3 testimony so he could submit it as 103. But we could 4 probably put it on and do the best we can that way. 5 C.O. STUBCHAER: Let me just go down the rest of the 6 list and see how it looks. 7 MR. BRANDT: That would be fine. 8 C.O. STUBCHAER: San Joaquin River Group would be 9 next. 10 MR. GODWIN: We weren't expecting to go today either 11 so we don't have any witnesses here today. We have several 12 witnesses that are from out of town as well. 13 C.O. STUBCHAER: Westlands Water District. 14 MS. MINABERRIGARAI: We do have rebuttal, but our 15 witness is not here either. 16 C.O. STUBCHAER: When are they going to be here? 17 MS. MINABERRIGARAI: Mr. Boardman could probably come 18 tomorrow or Thursday. 19 C.O. STUBCHAER: Mister who? 20 MS. MINABERRIGARAI: Boardman, Tom Boardman. 21 C.O. STUBCHAER: Thursday is not a hearing date. 22 Stockton East? 23 C.O. BROWN: Not here. 24 C.O. STUBCHAER: No one is here. Exchange 25 Contractors. CAPITOL REPORTERS (916) 923-5447 9981 1 MR. MINASIAN: We're not ready. We may very well 2 pass, Mr. Stubchaer. 3 C.O. STUBCHAER: When will you know? 4 MR. MINASIAN: We'll know when we see the San Joaquin 5 River Agreement, we'll go forward. 6 C.O. STUBCHAER: Andy Hitchins. 7 MS. LEIDIGH: He's not here. 8 C.O. STUBCHAER: Mr. Hasencamp? 9 MR. HASENCAMP: No. 10 C.O. STUBCHAER: You're not ready? You would not be 11 ready today? 12 MR. HASENCAMP: No, we don't have any rebuttal. 13 C.O. STUBCHAER: You don't have any rebuttal? 14 MR. HASENCAMP: No. 15 C.O. STUBCHAER: All right. Mr. Brandt, how long 16 would it take you to get your other witnesses here? In 17 other words, if we adjourn now until after the usual 18 morning break or something like that, would that give you 19 time to have your witnesses here? 20 MR. BRANDT: Potentially -- we need to track one 21 down. One is in a meeting downtown somewhere, so we need 22 to track her down. 23 C.O. STUBCHAER: Would you prefer to wait, or would 24 you prefer to proceed with Mr. Renning? 25 MR. BRANDT: Let's proceed with Mr. Renning. CAPITOL REPORTERS (916) 923-5447 9982 1 MR. PETTIT: If he needs to make a phone call. 2 C.O. STUBCHAER: Yeah, if you need to make phone 3 calls, please take the time to do that. We have a phone in 4 the projection room back there. 5 And also the other parties that aren't ready 6 today, if you can get your witnesses here, we would 7 appreciate that. 8 So we'll take a brief recess for communications. 9 (Off the record from 9:10 a.m. to 9:19 a.m.) 10 C.O. STUBCHAER: Back on the record. 11 MR. BRANDT: Mr. Chairman, we will put on Mr. Renning 12 this morning. We will have a second witness, Peggy Manza, 13 who will be here a little bit later this morning as best 14 she can. We will, therefore, have -- Mr. Renning has some 15 written testimony that we are getting copied now that we 16 will be able to hopefully submit as Exhibit 103. 17 And we have two other witnesses, but Mr. Thabault 18 from the Fish and Wildlife Service is actually out of -- 19 has been out of the town and would not be back until the 20 23rd. So that was our plan that we would put him on on the 21 23rd. So he will be here on the 23rd. 22 And then the other witness is -- we have some 23 testimony on the nature of the San Joaquin River as far as 24 being a losing stream below Friant and above Merced. But 25 we are going to reserve our right to put that testimony on CAPITOL REPORTERS (916) 923-5447 9983 1 in Phase VIII. And so I believe there may be some other 2 comments by some other parties about that fact, but we will 3 put that testimony on in Phase VIII. 4 So we'll hold that for this rebuttal. So, 5 therefore, we'll have three witnesses. We will try to get 6 two on today. And I understand that Mr. Godwin has perhaps 7 one witness he may be able to put on today. 8 MR. GODWIN: Yes, this afternoon. 9 C.O. STUBCHAER: Who will that be? 10 MR. GODWIN: Mr. Arora from the Department of Water 11 Resources. 12 C.O. STUBCHAER: How about Mr. Howard? 13 MR. GODWIN: I'm not prepared for Mr. Howard, 14 Mr. O'Laughlin is. I have a call into Mr. O'Laughlin to 15 see if he's going to be here this afternoon. 16 C.O. STUBCHAER: All right. 17 MR. GODWIN: And then we have some -- several other 18 witnesses that are not available this week. 19 C.O. STUBCHAER: This week? 20 MR. GODWIN: This week, yes. We have some witnesses 21 that are not available this week, we might be able to get 22 some more for tomorrow, though. 23 C.O. STUBCHAER: Well, the reason I'm hesitating is 24 this rebuttal testimony has been noticed for some time. 25 And when a person's witnesses aren't ready it may be that CAPITOL REPORTERS (916) 923-5447 9984 1 they just waive the opportunity to put those witnesses on. 2 See how it goes. 3 But anybody else want to comment on the 4 availability of their witnesses and readiness to put on 5 rebuttal? 6 MS. MINABERRIGARAI: I have a call into Mr. Boardman 7 to see if we can get him here tomorrow. I'll find out 8 later this afternoon or later this morning. 9 C.O. STUBCHAER: All right. And Exchange Contractors 10 here yet? 11 MR. MINASIAN: Yes. 12 C.O. STUBCHAER: Yeah, there you are. 13 MR. BRANDT: Are you ready? 14 MR. MINASIAN: No, we're not ready. We're going to 15 make a decision based on the rebuttal testimony that comes 16 ahead of us, Mr. Stubchaer. 17 C.O. STUBCHAER: Just out of curiosity, what would 18 you have done if the luck of the draw put you ahead, or 19 first? 20 MR. MINASIAN: Very good question and we probably 21 would have anticipated what the testimony would have been 22 on recirculation and go ahead -- some of your time would 23 have been wasted, some of it would not have. 24 That is the problem with the procedure, but 25 there's nothing that you can do about that, I don't CAPITOL REPORTERS (916) 923-5447 9985 1 believe, Mr. Chairman. 2 C.O. STUBCHAER: Okay. Mr. Brandt, thank you for 3 your efforts and let's proceed. 4 MR. BRANDT: Okay. It will take just a minute. 5 C.O. STUBCHAER: All right. 6 MR. BRANDT: Mr. Wilcox is getting copies. 7 C.O. STUBCHAER: All right. 8 (Off the record from 9:23 a.m. to 9:35 a.m.) 9 C.O. STUBCHAER: Come back to order, on the record. 10 Mr. Brandt, before you begin I have something to 11 say to the group. First of all, Mr. Minasian, I don't 12 understand your statement that you want to wait and see 13 what happens with some other rebuttal testimony, because 14 the purpose of rebuttal testimony is to rebut the direct 15 testimony. Everybody knows it's not to rebut rebuttal. 16 And you should be able to say now whether or not you're 17 going to put on rebuttal testimony, in my opinion. 18 And to all the parties, the Board is somewhat 19 disturbed about the lack of readiness to proceed with 20 rebuttal. This date has been known for a long time, we set 21 rebuttal today, not last week, to respect the wishes of 22 people to have time to prepare. And the thought occurs to 23 me that when we call on a party to present their rebuttal 24 testimony and they're not ready, they may have waived their 25 right to give rebuttal. CAPITOL REPORTERS (916) 923-5447 9986 1 And, Mr. Brandt, we greatly appreciate your 2 willingness, even though you are far down on the list, to 3 be ready to proceed today. So, please, go ahead. 4 MR. BRANDT: Thank you, Mr. Chairman. Sorry for my 5 delay in getting copies, it wasn't my expectation to be on 6 the first thing this morning. 7 Mr. Chairman, we have Mr. Renning who has been 8 sworn in a prior phase. And he's going to discuss backstop 9 issues, which were raised and questions were raised as to 10 whether we could provide the backstop and the nature of the 11 backstop by both the South Delta parties, South Delta Water 12 Agency as well as some of the Save the Bay witnesses. And 13 so we will have Mr. Renning basically present his 14 testimony. I think we'll just have him put it on. I don't 15 think there's any questions. 16 C.O. STUBCHAER: Good morning, Mr. Renning. 17 MR. RENNING: Good morning. 18 ---oOo--- 19 REBUTTAL TESTIMONY OF THE DEPARTMENT OF THE INTERIOR 20 BY JOHN RENNING 21 MR. RENNING: First of all, I'd like to apologize for 22 the form that my written testimony is in. This is a draft 23 that I happen to have with me. And there are several 24 blanks in it that I will fill in during my testimony and 25 there are several other notes on it that -- for the CAPITOL REPORTERS (916) 923-5447 9987 1 purposes of our testimony today are meaningless. I had 2 also hoped to prepare a summary of this testimony, but I 3 haven't had that opportunity, so I'm in large part going to 4 read parts of my testimony. 5 As part of the San Joaquin River Agreement the 6 Department of Interior, Bureau of Reclamation and the 7 Department of Water Resources have offered to meet whatever 8 Bay-Delta requirements that would have been imposed on the 9 San Joaquin River parties consistent with the 1995 Water 10 Quality Control Plan for the Delta. 11 This commitment commonly referred to as "back 12 stopping the agreement" is contained in Article 10 of the 13 San Joaquin River Agreement. Testimony by Alex Hildebrand 14 on behalf of South Delta Water Agency raised questions 15 about the nature of Reclamation's offer to backstop the San 16 Joaquin River Agreement. 17 In addition, Dwight Russell of the Department 18 stated the Department's understanding of its backstop 19 responsibilities, but could not provide full information on 20 Reclamation's role in the so-called backstop. 21 This testimony will, therefore, provide more 22 details on the nature of Reclamation's backstop in addition 23 to testimony already provided by Lowell Ploss in Phase II 24 of these hearings. 25 The San Joaquin River Agreement Section 10.1.1 CAPITOL REPORTERS (916) 923-5447 9988 1 commits Reclamation to assume responsibility for the term 2 of this agreement for the San Joaquin River portion of the 3 1995 Water Quality Control Plan objectives that can 4 reasonably be met through flow objectives. 5 "This commitment will 'survive the termination of 6 the San Joaquin Agreement' for the shorter of two years or 7 until the State Board issues a final order implementing the 8 San Joaquin River portion of the 1995 Water Quality Control 9 Plan." 10 The San Joaquin River portion is a defined term 11 that includes both the flow and salinity standards at 12 Vernalis and the San Joaquin River basin's share of all 13 Delta outflow objectives. 14 In our view, the most reasonable method for 15 Reclamation to provide flow at Vernalis is use of the CVP's 16 New Melones supplies. New Melones is Reclamation's closest 17 supply to Vernalis and its permits are the only ones to 18 impose Vernalis water quality requirements. Indeed, 19 Congress included water quality as one of the purposes of 20 the New Melones Project. 21 One difficulty with relying upon New Melones is 22 that Reclamation ordinarily limits New Melones' releases to 23 1500 cfs. This limitation arises out of problems caused by 24 flows exceeding 1500 cfs to land adjacent to downstream 25 stretches of the Stanislaus. CAPITOL REPORTERS (916) 923-5447 9989 1 Since the passage of the Central Valley 2 Improvement Act in 1992 Reclamation has instituted a water 3 acquisition program to augment our supplies for water 4 quality and fishery purposes on the Stanislaus, the San 5 Joaquin and in the Delta. 6 Since the Accord was signed in 1994 the CVP and 7 SWP have met all Delta water quality standards except for 8 certain inconsequential exceedances. And these are 9 mentioned at the footnote at the bottom of Page 1. And I'm 10 sorry I've left those dates blank, because I was going to 11 do that this week. But those dates were mentioned in 12 Lowell Ploss's testimony in Phase I of this hearing and 13 each of those dates was for several days, and I think it's 14 fair to say those were inconsequential exceedances. 15 This is due, in part, to the wetter hydrologic 16 conditions, but also to our success at acquiring additional 17 water supplies. This water acquisition program has proven 18 to us that acquisitions like the ones proposed as part of 19 the San Joaquin Agreement can make a significant 20 contribution to Reclamation's success in providing fishery 21 flows and complying with water quality standards imposed by 22 the State Board. 23 Compliance with the 1995 Water Quality Control 24 Plan during pulse flows with the San Joaquin in effect, 25 Reclamation has committed to meeting at least the target CAPITOL REPORTERS (916) 923-5447 9990 1 flows set out in the San Joaquin River Agreement. The 2 target flows, in conjunction with reduced exports and the 3 other provisions of the San Joaquin River Agreement, can 4 provide equivalent implementation of the flow standards 5 established in the Water Quality Control Plan. 6 Implementing the flow standard and its intended 7 fishery purpose is more of an issue of biology in which I 8 have no expertise. Instead, Reclamation relies upon the 9 expertise of its sister agency, the Fish and Wildlife 10 Service, which already provided testimony on the San 11 Joaquin River Agreement's equivalent implementation of the 12 pulse flow objectives. 13 Compliance with the pulse flow objective depends 14 upon the contributions of the San Joaquin River Group's 15 members. We believe that coordinating the operations of 16 the three major tributaries to the San Joaquin River 17 provides the greatest likelihood of success in providing 18 the pulse flow needed at Vernalis. 19 Because the CVP does not operate all of the 20 significant tributaries to the San Joaquin, this 21 coordination allows more precise forecasting and operation 22 to ensure the necessary pulse flows arrive at Vernalis. 23 This was discussed in Phase II by John Burke of the Bureau. 24 Reclamation will provide the 1500 cfs inflow from New 25 Melones and rely on the other parties to make up the CAPITOL REPORTERS (916) 923-5447 9991 1 difference. 2 In addition, in certain circumstances Reclamation 3 will seek to acquire additional flows to provide flows 4 above the target flows. If, for example, the target flow 5 is only 2,000 cfs, then Reclamation will seek acquisition 6 of flows to achieve the 3200 cfs flow as provided in the 7 Water Quality Control Plan and the Biological Opinion. 8 In certain years where the San Joaquin Agreement 9 does not require the other parties to provide flows, 10 Reclamation will seek to provide the pulse flows required 11 by the Water Quality Control Plan and the Biological 12 Opinion as best we can from New Melones and water 13 acquisitions. 14 In very wet years we will do our best in concert 15 with the other San Joaquin River Agreement parties to 16 stabilize the pulse flows throughout the pulse flow period. 17 In that situation, it is generally not a problem to comply 18 with the Water Quality Control Plan's Vernalis pulse flow 19 requirements, because flood flows keep the flows high, 20 often out of control of the San Joaquin River Agreement 21 parties. 22 Compliance with the Water Quality Control Plan 23 after termination, Reclamation also provides another kind 24 of backstop when the San Joaquin River Agreement terminates 25 for one reason or another. In that event, Reclamation CAPITOL REPORTERS (916) 923-5447 9992 1 retains responsibility for the San Joaquin River portion of 2 the Water Quality Control Plan and joins with DWR in taking 3 responsibility for the San Joaquin's share of the Delta 4 outflow requirements for up to two years. 5 Our past water acquisition efforts give us 6 confidence that we would be able to acquire water from 7 other parties if termination of the the other San Joaquin 8 River Agreement conditions occur. 9 In effect, our responsibility for both the flow 10 objectives and certain export limitations remain in place 11 and we intend to pursue compliance to the best of our 12 ability for those two years. 13 Greater certainty of compliance with the 1995 14 Water Quality Control Plan outside of the pulse flow year, 15 Reclamation retains responsibility for the San Joaquin 16 River Agreement portion for the 1995 Water Quality Control 17 Plan at all other times of the year when the San Joaquin 18 River Agreement is in effect. 19 Our modeling indicates that our additional 20 purchases of water contained in the San Joaquin River 21 Agreement will allow us to comply with those non pulse flow 22 requirements in most years except during an extended 23 drought. 24 Indeed, the San Joaquin River Agreement purchases 25 from Oakdale and Merced provide a great deal more certainty CAPITOL REPORTERS (916) 923-5447 9993 1 than current conditions where we rely upon purchasing water 2 for an individual year. Such annual purchases are subject 3 to the fluctuations in hydrology that may lead to little or 4 no water being available 5 Effect on non-parties, Reclamation will meet its 6 backstop commitment in such a way as to not to impose any 7 further responsibility upon any water right holders not 8 party to this agreement. We have studied the scope of our 9 commitment and how it may affect other parties on both the 10 San Joaquin above Vernalis and in the other river systems. 11 We recognize that there are a small number of 12 water right holders above Vernalis that are not parties to 13 the San Joaquin River Agreement, but nevertheless will 14 receive the protection from Reclamation's backstop. 15 As to the Sacramento River, we have distinguished 16 between the backstop effects of the Vernalis objectives and 17 the outflow requirements. Because the Sacramento River has 18 little or no effect on Vernalis flows or water quality, we 19 have not identified any effect on the San Joaquin River 20 system water right holders from our Vernalis backstop. 21 As to our backstop of the outflow requirements, 22 however, we have identified possible scenarios that could 23 require us to increase our contribution from the Sacramento 24 River system in order to make up for any reductions in the 25 San Joaquin River contributions to outflow requirements. CAPITOL REPORTERS (916) 923-5447 9994 1 The CVP can and the SWP would make up any San 2 Joaquin River reductions from our own supplies consistent 3 with the Coordinated Operating Agreement. A fuller 4 explanation of our investigation may help the Board 5 understand how we will ensure other Sacramento River water 6 right holders do not suffer. In investigating 7 Reclamation's commitment, it is necessary to assume, quote, 8 "what alternative the State Board would have in place of 9 the San Joaquin River Agreement." 10 We have assumed that this would be Alternative 3. 11 And as I noted, please disregard these notes on my 12 testimony. This alternative, which incorporates a modified 13 Term 91, allocates responsibility for the Bay-Delta 14 requirements based on priority. It involved a 15 computational process that determines when the projects are 16 releasing stored water to meet in-basin demands including 17 the Bay-Delta requirements. 18 The requirements imposed upon the San Joaquin 19 River parties in Alternative 3 are taken from run 506 and 20 from Appendix 3 of the Draft EIR. Both of these -- run 21 506 is available for everyone to look at on DWR's web page. 22 And, of course, Appendix 3 is the State Board's document, 23 which I presume everyone has a copy of. 24 These calculations involve the following 25 quantities and I've described them here. These are CAPITOL REPORTERS (916) 923-5447 9995 1 basically the flow requirements to meet the San Joaquin 2 Agreement -- to meet the Delta outflow requirements at the 3 Tuolumne and the Merced and the water that's generated from 4 the San Joaquin River direct diversion curtailments. 5 And these were compared against Alternative 8 for 6 the flows at the points below Don Pedro and McClure on the 7 Tuolumne and the Merced. 8 The sum of these values, or the in-basin 9 obligation of the San Joaquin basin proposed by Alternative 10 3 but not met because of the San Joaquin River being in 11 place, or as I referred to it here as "IO SJRA" is given by 12 the following equation. And my testimony covers that 13 equation. And I won't repeat it here. 14 This computation is summarized in DOI Exhibit -- 15 and here's another blank, and what that is are the first 16 six pages that are attached to my written testimony. And 17 for the purposes of this hearing this will be Exhibit 103A. 18 C.O. STUBCHAER: Mr. Renning, those are all marked, 19 IO-VAMP.WK4? 20 MR. RENNING: Yes, at the bottom, and there's a page 21 number and there's a description of what each of these 22 quantities are at the top. And then Page 6 is the equation 23 that's on Page 4 of my testimony that sums up the in-basin 24 obligation of the San Joaquin Agreement. And -- well, 25 it's shown there on Page 6. CAPITOL REPORTERS (916) 923-5447 9996 1 This Exhibit 103A contains each of the components 2 and the results of the equation. The long-term annual 3 average of the in-basin obligation of the San Joaquin 4 Agreement is 98,000 acre-feet and ranges from 279,000 5 acre-feet to a negative 36,000 acre-feet. 6 The Bay-Delta part of this obligation will be met 7 or backstopped by the projects through the operation of the 8 CVP and SWP. The Vernalis part of this obligation will be 9 met to the extent possible with the operation of the CVP 10 and by water purchases. 11 In meeting this commitment it must be done in such 12 a way as to not to increase the responsibility of any 13 parties that are not covered by the San Joaquin River 14 Agreement and would be done as described below. 15 The water rights or parties that might be effected 16 were examined by the State Board in Alternative 3 and are 17 listed in tables, Roman Numeral 2-5 and Roman Numeral 2-6 18 of the Draft EIR. Table 2-5 contains all the water rights 19 in the San Joaquin Valley, Table 2-6 contains water rights 20 on the San Joaquin River above Vernalis. 21 Chapter four of the Draft EIR covers the water 22 priority analyses of Alternatives 3 and 4. The Delta 23 calculation for Alternative 3 is described on Page 4015. I 24 will not go through the entire explanation of the 25 calculation, but will focus on the part of the calculation CAPITOL REPORTERS (916) 923-5447 9997 1 that is relevant to the backstop issue. 2 The important equations are listed here on Page 4 3 of my testimony. The first one, the supplemental water, 4 that is the water that is released by the projects to meet 5 Delta requirements as given by this equation and it equals 6 the storage releases minus the quantity of the exports 7 minus the in-basin obligations. 8 Rearranging that into the form that's shown in 9 equation two, we have set the storage releases minus the 10 quantity of the export obligations minus the in-basin 11 obligations equal to the direct diversions plus the storage 12 curtailments that would be imposed by modified Term 91. 13 The next part of my testimony more specifically 14 defines each one of those quantities. When Term 91 is in 15 effect the meaning of equation two is that unless the 16 equation is balanced, water right holders will be diverting 17 water that is going to meet Bay-Delta requirements. 18 Equation two will be balanced at a priority level 19 through an iterative process. Use of this equation is 20 appropriate if all water right holders are included in the 21 process. Priority level for a cutoff of diversion is 22 determined by going through the list of rights until the 23 equation balances. 24 In the Draft EIR this process was done by 25 segregating the rights into eight groups, that is "n" is 1 CAPITOL REPORTERS (916) 923-5447 9998 1 through 8. Curtailments are imposed by group. If the 2 curtailment brings the equation out of balance in favor of 3 the projects, the last group is not curtailed. 4 If all water right holders are not included in the 5 process, as will occur if Alternative 8 of the San Joaquin 6 River Agreement is adopted, and the projects meet the 7 responsibility that those San Joaquin River right holders 8 would otherwise have under Alternative 3, then equation two 9 would have a higher storage release component, that is more 10 water will be released from project storage to meet the 11 Delta requirement because less flow will be coming from the 12 San Joaquin. And when it is brought into balance, it will 13 impose greater curtailments, that is, an earlier level n on 14 water right holders. 15 In effect, other water right holders would have 16 the San Joaquin River Group water right holders' 17 responsibility imposed upon them. This, of course, is not 18 the intended result of the San Joaquin River Agreement. 19 Therefore, a correction factor must be included in the 20 equation to ensure that other water right holders are not 21 effected. The revised equation would be the following -- 22 and I think everyone has it and I won't read it. 23 And it describes -- and it includes, this is a 24 correction here, the correction factor or IO SJRA is the 25 difference between Alternative 3 responsibility, required CAPITOL REPORTERS (916) 923-5447 9999 1 reservoir releases or diversion curtailments and the 2 operations under Alternative 8 of the San Joaquin River 3 Agreement as described earlier -- pardon me, or the San 4 Joaquin River Agreement as described earlier, pardon me. 5 Inclusion of this factor will make the balance of 6 equation II-A, i.e., the priority level n, the same as that 7 of equation two, thereby imposing Bay-Delta responsibility 8 on the same level or priority of water right holders as 9 Alternative 3 would have imposed if the San Joaquin River 10 Agreement was not in place and the San Joaquin parties were 11 operating in compliance with Alternative 3. 12 We have developed several examples of how this 13 would work. These examples are based upon alternative -- 14 on the Alternative 3 allocation of supplemental water for 15 Delta outflow on Pages A3-60 through A3-72 of the Draft EIR 16 and are shown in DOI Exhibit -- I guess this will be 103B. 17 And these are the last four of the pages that are attached 18 to my written testimony. These examples covered four 19 months in three years and show the following -- the title 20 priority group cutoff should have been at the top of the 21 last page. 22 What this shows is that in the four months that 23 are shown here, that is June 1923, June 1925, July 1942 and 24 August 1942, that the priority levels shown would have been 25 what Alternative 3 would have been -- how that would have CAPITOL REPORTERS (916) 923-5447 10000 1 been imposed by Alternative 3. 2 If the San Joaquin River Agreement were in place 3 and there was not a correction made to the term -- 4 modified Term 91 process, then that same procedure would 5 have resulted in the priority level cutoffs that are shown 6 in the second column. And you'll see that each one of 7 those is a much higher priority level cutoff. But if we do 8 impose the correction, and that's shown in column three, 9 that that brings it back to exactly what Alternative 3 10 would have imposed. 11 MEMBER FORSTER: Can I ask a question? 12 C.O. STUBCHAER: Sure. Mr. Renning, Ms. Forster has 13 a question. 14 MEMBER FORSTER: This is a little hard to understand. 15 Do you have something that shows us how many priority 16 numbers you have and who they are? I don't know what this 17 means. 18 MR. RENNING: Well -- 19 MEMBER DEL PIERO: Without the Draft Environmental 20 Impact Report in front of you, no one is going to know what 21 it means. 22 MR. RENNING: Yes. 23 MEMBER FORSTER: Okay. 24 MR. RENNING: That's right. As I said, these are all 25 covered -- CAPITOL REPORTERS (916) 923-5447 10001 1 MEMBER FORSTER: In our -- 2 MR. RENNING: -- in the Draft EIR in Tables 2-5 and 3 2-6. 4 MEMBER DEL PIERO: No one is going to be able to 5 explain that unless you have the document in front of you. 6 MEMBER FORSTER: Okay. 7 MR. RENNING: And those tables, there's about four or 8 five pages of information on those. 9 MEMBER FORSTER: I already know that. 10 MR. RENNING: Each contains each one of the water 11 rights that this State Board is looking at in this hearing. 12 The first priority levels are the most junior, the second 13 priority levels are a little bit more senior and they go 14 through to the earliest priority levels. 15 MEMBER FORSTER: I remember, thank you. 16 MR. RENNING: And, of course, the second table is 17 just for the San Joaquin River. First table covers the 18 entire Central Valley including the San Joaquin. 19 I have overheads of Exhibit 103B which I think 20 will explain some of these things, but I'll finish up my 21 written statement here. 22 These years were chosen because they show -- 23 these particular years, the ones that I've shown here in my 24 written testimony and in Exhibit 103B, were shown because 25 they show a change in the middle range to the priority CAPITOL REPORTERS (916) 923-5447 10002 1 groups. The IO SJRA in Exhibits 103A and 103B can be 2 compared, they are identical, but they were computed with 3 slightly different data. 4 The fact that they are identical shows the 5 Alternative 3 -- the Alternative 3 study and the 6 Alternative 8 study can be compared directly. 7 And I'd also like to add that as a result of the 8 implementation of the San Joaquin Agreement, the 9 implementation of the San Joaquin Agreement will not result 10 in the need for Sacramento River basin water users to 11 reduce diversions or otherwise provide any more water to 12 meet the San Joaquin River basin's share of the 1995 Water 13 Quality Control Plan Delta outflow objectives. 14 And that concludes my testimony -- my rebuttal 15 testimony. 16 C.O. STUBCHAER: Thank you, Mr. Renning. Very 17 complete. Were you going to show the overheads? 18 MR. RENNING: I'll show one here as an example here. 19 There may be questions that come up. 20 C.O. STUBCHAER: All right. 21 MR. RENNING: The example that I've shown here is for 22 June 1925, this is out of Exhibit 103B. And this shows 23 that from Alternative 3 the supplemental water 24 requirements, that is the water that the CVP and the SWP 25 had to release, that was greater than their exports and CAPITOL REPORTERS (916) 923-5447 10003 1 greater than their in-basin demands was 353,000 acre-feet. 2 That -- in a sense, that could be viewed as our cost of 3 having to meet the Bay-Delta requirements. 4 MEMBER DEL PIERO: Excuse me? 5 C.O. STUBCHAER: Mr. Del Piero. 6 MEMBER DEL PIERO: What do you calculate your demands 7 at? 8 MR. RENNING: All of this comes out of the study that 9 was done for the Draft EIR for Alternative 3 and it 10 contains -- 11 MEMBER DEL PIERO: So that demand was based on what, 12 Mr. Howard? 13 MR. HOWARD: 1995 level of demand from a DWRSIM 14 Depletion Study. 15 MEMBER DEL PIERO: Okay. So that's not an actual 16 number, that's based on a modeling; is that correct? 17 MR. HOWARD: Yes, but when we compare numbers like 18 this with actual supplemental water releases that have been 19 historically calculated using real hydrology they're in the 20 same range. 21 MEMBER DEL PIERO: How close? 22 MR. HOWARD: The same. 23 MEMBER DEL PIERO: Okay. 24 MS. LEIDIGH: I'd like to point out that Mr. Howard 25 has not been sworn. CAPITOL REPORTERS (916) 923-5447 10004 1 MR. HOWARD: Well, not yet. 2 MS. LEIDIGH: I'm sorry, yeah, not yet. 3 MEMBER DEL PIERO: Thanks. 4 C.O. STUBCHAER: So that's hearsay, Mr. Del Piero, 5 just to answer your question. 6 MR. RENNING: Okay. That's the commitment that the 7 projects are having to meet. As we go through each one of 8 the priority groups, and they're shown down here at the 9 bottom, one, two, three, four up to priority Group A, these 10 are the quantities that are being released -- or that 11 would have been released by -- 12 C.O. STUBCHAER: Mr. Renning -- 13 MR. RENNING: Pardon me. I'm sorry, go ahead. 14 C.O. STUBCHAER: I was just going to ask that when 15 you say "these" and you circle with a pointer, you say 16 "line 2A from storage," or something like that for the 17 written record. 18 MR. RENNING: Okay. Lines 2A and 3A are the 19 quantities that the San Joaquin River parties are diverting 20 to storage, or making direct diversions at the time that 21 that Term 91 more or less would be in effect. 22 C.O. STUBCHAER: Mr. Renning, I'm sorry for the 23 interruptions up here, but point of clarification, Line 1A 24 it says "SW, Stored Water" is that the water that the 25 projects would have to release from storage to meet their CAPITOL REPORTERS (916) 923-5447 10005 1 outflow requirements that was above, I think as you stated, 2 the demands and the depletions? 3 MR. RENNING: Yes, that's right. 4 C.O. STUBCHAER: Okay. 5 MEMBER DEL PIERO: Does that water exist? 6 MR. RENNING: Yes, it does. 7 MEMBER DEL PIERO: And what's it translate out to? 8 MR. RENNING: In this particular month it would be 9 350,000 acre-feet. 10 C.O. STUBCHAER: Staff like to ask a question at this 11 point in time? 12 MS. WHITNEY: "SW," doesn't that mean supplemental 13 water as opposed to stored water? 14 MEMBER DEL PIERO: That's what I thought, that water 15 would have to be purchased. 16 MR. RENNING: No. 17 MS. WHITNEY: And the 2A from storage, is that water 18 being used from storage from other than the projects? 19 MEMBER DEL PIERO: Forgive me for not understanding, 20 but -- 21 C.O. STUBCHAER: We will get the answer. 22 MR. RENNING: Okay. If you go to my written 23 testimony and look at equation one, okay, what equation one 24 says is that supplemental project water is the storage 25 releases, that is the water that the projects are releasing CAPITOL REPORTERS (916) 923-5447 10006 1 from storage or importing into the Central Valley. That 2 quantity minus our exports plus -- 3 MR. HOWARD: At this point, could I ask a question, 4 Mr. Renning; isn't it correct that that should be a plus 5 before the IO term? 6 MR. RENNING: Yes, I just noticed that. 7 MR. HOWARD: Okay. 8 MR. RENNING: That should be a plus, plus whatever 9 our in-basin obligations are. Now, our in-basin 10 obligations are the demands that we meet in the Sacramento 11 Valley. 12 Now, when that quantity supplemental water is 13 positive that means that we are releasing more water than 14 we're needed -- than we need to meet our demands, our 15 consumptive demands, our water deliveries. Therefore, that 16 water is water that's going to meet our outflow 17 requirements in the Delta, our Delta requirement. 18 And the concept is that that is a requirement that 19 should not necessarily be imposed completely upon us. In 20 the present Term 91 that the State Board has that they 21 impose upon all new water rights that are permitted in the 22 Central Valley, it says that whenever Term 91 is in 23 operation, i.e., whenever there's supplemental project 24 water existing, that those diverters have to stop diverting 25 because, in essence, they're taking water that we're CAPITOL REPORTERS (916) 923-5447 10007 1 releasing for Delta outflow from our storage. 2 C.O. BROWN: Mr. Chairman? 3 C.O. STUBCHAER: Mr. Brown. 4 C.O. BROWN: Maybe Mr. Del Piero's confusion is 5 similar to mine. "SW" has two meanings that I've heard you 6 speak of and I'm just wondering which one it is. Is it 7 stored water or supplemental water? 8 MEMBER DEL PIERO: It's both at this point. I just 9 figured it out, there's no way of breaking out the number 10 of what's stored as opposed to what they're proposing to 11 purchase; is that correct? 12 MR. RENNING: No. This has nothing to do with 13 purchase. 14 MEMBER DEL PIERO: Nothing at all? 15 MR. RENNING: We're not proposing to purchase any 16 water to meet our Delta outflow requirements. We're only 17 proposing to purchase water to meet the Vernalis -- the 18 requirements that are unique to Vernalis, it's the water 19 quality or the flow requirements at Vernalis. 20 C.O. STUBCHAER: Okay. Mr. Renning, thank you. Why 21 don't you proceed with the -- 22 C.O. BROWN: I have a question. 23 C.O. STUBCHAER: What about Mr. Brown's question: 24 Does "SW" have two meanings? That was answered by Board 25 Members, but not by you yet. CAPITOL REPORTERS (916) 923-5447 10008 1 MR. RENNING: I don't think so. It means what I say 2 it means in my testimony. 3 MEMBER DEL PIERO: Okay. 4 C.O. STUBCHAER: Which is, stored or supplemental? 5 MR. RENNING: Supplemental water. Sorry. Lines 2A 6 and 3A are the quantities that are diverted to storage by 7 San Joaquin River parties during the time that this figure 8 is positive and the quantities that are diverted by San 9 Joaquin River direct diverters. 10 Going through and -- let's see, as you can tell, 11 I had hoped to practice this before I did it today. 12 C.O. STUBCHAER: You're doing fine. 13 MR. RENNING: There's a column of explanation, it's 14 the last page here, and I'm referring to that right now. 15 MEMBER DEL PIERO: From your testimony? 16 C.O. STUBCHAER: The very last page? 17 MR. RENNING: Yes. The important point is to look at 18 Line 7A. This is the water that's generated. And here we 19 take the quantity 2A, 3A, 5A and 6A, and that's shown 20 there, that is compared against the project obligation. 21 In this case, the project obligation for the 22 supplemental water -- pardon me, 7A is compared against 23 1A, supplemental project water is compared against the 24 water generated by those quantities. And when those are 25 compared the project obligation still comes out to be a CAPITOL REPORTERS (916) 923-5447 10009 1 positive quantity. That means that if water right holders 2 at this level -- 3 C.O. STUBCHAER: That's line 9A. 4 MR. RENNING: 9A, at cutoff group one, are cut off 5 then only -- there would be about 190,000 acre-feet of 6 water generated. And that would still not be enough to 7 make the equation come into balance. 8 Therefore, we go to priority level two. And going 9 through those numbers as shown in Line 8A, the figure is 10 54,000 acre-feet, it's still not enough. Going to priority 11 group three, 8A is now 45,000, still not enough. Go to 12 priority group four and now Line 8A comes out to be a 13 negative value. 14 So, therefore, in this case Alternative 3 would 15 impose a cutoff on priority level three. And the concept 16 there is that if priority level four were cut off the 17 projects would actually be benefiting or taking advantage 18 of those water right holders, and that's not what the 19 concept behind Alternative 3 is. 20 Now, you go to the second part of this example 21 and this shows what will happen with the San Joaquin 22 Agreement but no backstop. And here you'll see that the 23 project obligation is now Line 11B. And if you'll go 24 through it you'll see that at the various priority levels 25 Line 11B is positive until you reach priority group seven, CAPITOL REPORTERS (916) 923-5447 10010 1 it finally becomes negative at priority group eight. 2 Therefore, if the Alternative 3 plus the San 3 Joaquin Agreement of no backstop were in place, that would 4 impose cutoffs, curtailments of diversion on all water 5 right holders up to priority level seven. And when you 6 compare that with Alternative 3, you'll see that four more 7 priority groups have had curtailments imposed upon them. 8 And that, of course, is not what we intend to do 9 with the San Joaquin River Agreement. Now, at the bottom, 10 the third part of this exhibit, Line 10C is the San Joaquin 11 River Agreement correction. And you'll see what that 12 correction is for each one of the priority groups. 13 And you'll see that in Line 12C when that is taken 14 into account, and it's described in the column near 15 explanation for Exhibit 103B, that the project obligation 16 is exactly the same as for Alternative 3. Yeah, Line 12C 17 and Line 8A are exactly the same. So that means that this 18 process will not impose any further responsibility on 19 anyone other than would have been imposed by Alternative 3 20 in the first place. 21 C.O. STUBCHAER: That was a very enlightening 22 explanation, thank you. 23 C.O. BROWN: Good job. 24 C.O. STUBCHAER: Let's see, it's about time for our 25 morning break, what do you think about that? CAPITOL REPORTERS (916) 923-5447 10011 1 MR. BRANDT: That would be fine. 2 C.O. STUBCHAER: And then would you want to proceed 3 with cross-examination of Mr. Renning, or do you want to 4 track down another party to cross-examine? 5 MR. BRANDT: I think we would like to proceed with 6 cross-examination of Mr. Renning and then we'll go from 7 there. 8 C.O. STUBCHAER: All right. 9 MR. BRANDT: Because each witness is a very different 10 piece and it doesn't make sense to put them on as a panel. 11 C.O. STUBCHAER: All right. 12 MR. BRANDT: They're very different. 13 C.O. STUBCHAER: Okay. 14 MR. BRANDT: Can I get a sense of who's doing cross? 15 C.O. STUBCHAER: All right. Who wishes to 16 cross-examine? Okay. 17 Ms. Whitney, we'll call off the names: Alan 18 Lilly, Mr. Hasencamp, Mr. Nomellini, Mr. Herrick, 19 Mr. Jackson. Anyone else? Okay. Take our break. 20 (Recess taken from 10:21 a.m. to 10:35 a.m.) 21 C.O. STUBCHAER: Come back to order. The order of 22 cross-examination will be: Mr. Herrick, Mr. Nomellini and 23 Mr. Hasencamp, Mr. Lilly and Mr. Jackson. 24 Mr. Herrick, good morning. 25 MR. HERRICK: Good morning, Mr. Chairman, Board CAPITOL REPORTERS (916) 923-5447 10012 1 Members. Thank you very much. John Herrick for South 2 Delta Water Agency. 3 ---oOo--- 4 CROSS-EXAMINATION OF THE DEPARTMENT OF THE INTERIOR 5 BY THE SOUTH DELTA WATER AGENCY 6 BY JOHN HERRICK 7 MR. HERRICK: Good morning, Mr. Renning. In your 8 testimony you quoted parts of the San Joaquin River 9 Agreement and I believe you were reading from portions of 10 Section 10 of that agreement which deals with the backstop. 11 Is that correct? 12 MR. RENNING: Yes, that's correct. 13 MR. HERRICK: And as I read it and as I believe you 14 quoted it, 15 (Reading): 16 "In order to achieve the purposes of this 17 agreement the USBR shall assume responsibility 18 for the term of this agreement for the San 19 Joaquin River portion of the 1995 Water Quality 20 Control Plan objectives that can reasonably be 21 met through flow measures." 22 Is that correct? 23 MR. RENNING: Yes. 24 MR. HERRICK: And what does the Bureau mean by "can 25 reasonably be met"? CAPITOL REPORTERS (916) 923-5447 10013 1 MR. RENNING: My testimony and the testimony of other 2 Bureau witnesses, as discussed, how we will operate certain 3 features of the CVP to meet the Water Quality Control Plan. 4 And in that operation what we plan to do there is -- there 5 is -- 6 C.O. STUBCHAER: Mr. Renning, please move the mic 7 over to your left side. 8 MR. RENNING: I'm sorry. 9 C.O. STUBCHAER: Okay. 10 MR. RENNING: And in those planned operations that we 11 have there is a noting that we will not be able to meet all 12 of the standards all of the time, but we will do what we 13 feel is our best effort and is a reasonable effort to meet 14 the standards. 15 MR. HERRICK: Well, is the beginning point for what 16 can be reasonable or what cannot be reasonable the 17 beginning point of the Interim Operations Plan at New 18 Melones? 19 MR. RENNING: Yes. 20 MR. HERRICK: So anything different than that plan is 21 by definition unreasonable to the Bureau? 22 MR. RENNING: No, I'm not saying that. I'm saying we 23 believe the New Melones Interim Operation Plan is a 24 reasonable operation. 25 MR. HERRICK: Okay. What percentage of fishery flow CAPITOL REPORTERS (916) 923-5447 10014 1 violations occur if the Interim Operations Plan is adopted 2 or continued? 3 MR. RENNING: I don't know that figure. 4 MR. HERRICK: But you do recall from prior testimony 5 that the violations of the water quality standard are 6 somewhere around 40 percent; is that correct? 7 MR. RENNING: Yes. 8 MR. HERRICK: Do you have any information that can 9 help this Board to decide whether or not the fishery 10 violations are somewhere in the same category? 11 MR. RENNING: I'm sorry, but I simply don't know 12 these figures and I can't testify to those. 13 MR. HERRICK: Has the Bureau decided to try to meet 14 fishery flows and not meet water quality flows? 15 MR. RENNING: I am not able to testify as to how 16 certain things were done in developing the New Melones 17 Interim Operations Plan. I simply don't have that 18 knowledge. 19 MR. HERRICK: Is the Bureau treating those 20 obligations the same, those obligations being the fishery 21 flows at Vernalis and the water quality objective for 22 agricultural uses at Vernalis? 23 MR. RENNING: I'm not sure that I can give you a 24 direct answer to your question, Mr. Herrick. The New 25 Melones Interim Operation Plan was developed through a CAPITOL REPORTERS (916) 923-5447 10015 1 process that examined all of the demands being placed upon 2 the project. 3 And the Bureau felt that the plan that we came up 4 with was a reasonable way to meet all of those objectives, 5 noting as I said before, that at times some of the 6 objectives would not be met. 7 MR. HERRICK: Well, the agricultural water quality 8 objective at Vernalis, it is a responsibility of the New 9 Melones Project, is it not? 10 MR. RENNING: Yes. 11 MR. GODWIN: Excuse me, I'm going to object to this 12 line of questioning. It's going outside the scope of 13 Mr. Renning's rebuttal testimony, which was very limited to 14 showing how the backstop would be calculated and what the 15 backstop means. He's not here to testify about water 16 quality or anything else, or the Interim Operation Plan for 17 that matter. 18 C.O. STUBCHAER: Mr. Herrick. 19 MR. HERRICK: Well, Mr. Renning, not at great length, 20 but went at length to describe what the backstop meant and 21 he said that they will try to met the Water Quality Control 22 Plan under that -- the objectives that may be reasonably 23 met. 24 I think it's perfectly appropriate to explore what 25 he means by "reasonably meet those objectives." We're CAPITOL REPORTERS (916) 923-5447 10016 1 trying to decide whether or not in this rebuttal whether 2 the Bureau is giving us information on the backstop that 3 wasn't previously given. 4 C.O. STUBCHAER: Ms. Leidigh, what are our guidelines 5 on rebuttal, on the scope of rebuttal testimony, 6 cross-examination of rebuttal testimony? 7 MS. LEIDIGH: Cross-examination is limited to the 8 scope of the direct examination on rebuttal. Now, it's a 9 question of fact whether or not the questions that the 10 examiner proposes to ask are within the scope of the direct 11 examination on rebuttal or not. 12 So I think the Hearing Officer will have to decide 13 as a matter of fact, whether or not these do fall within 14 it. I think it can be judged narrowly. 15 C.O. STUBCHAER: Mr. Herrick, could you point out in 16 Mr. Renning's direct testimony, which fortunately we have 17 all in writing so it doesn't rely on memory, what your 18 question is based on? 19 MR. HERRICK: I can certainly attempt to do that, if 20 you can give me one moment, please. 21 C.O. STUBCHAER: Sure. 22 MR. HERRICK: I was writing my questions based on his 23 verbal testimony, because I had not received this yet. 24 C.O. STUBCHAER: Sure. 25 MR. HERRICK: In the second paragraph of his CAPITOL REPORTERS (916) 923-5447 10017 1 testimony he says the SJRA section permits Reclamation to 2 assume responsibilities for the terms of this agreement. 3 Then he goes on to flow measures. And the last sentence of 4 that says, 5 (Reading): 6 "The San Joaquin River portion is defined as 7 that includes both flow and salinity standards 8 at Vernalis." 9 So I would say questions about how their backstop 10 actually meets the flow and salinity standards are 11 perfectly appropriate. 12 C.O. STUBCHAER: Mr. Godwin. 13 MR. GODWIN: That portion only deals with what is 14 contained in the San Joaquin River Agreement. If you look 15 at the rest of the testimony it has to do with meeting the 16 pulse flow standards. 17 Look on the next page, "Compliance with 1995 Water 18 Quality Control Plan during the Pulse Flow." And all these 19 calculations are all based on State Board documents and 20 State Board calculations, which I assume met water quality 21 in addition to the flow standards. 22 MR. HERRICK: Well, Mr. Chairman, if I may address 23 that? 24 C.O. STUBCHAER: Yes, Mr. Herrick. 25 MR. HERRICK: That's just almost testimony by the CAPITOL REPORTERS (916) 923-5447 10018 1 counsel. It doesn't matter that the statement is a small 2 part of his testimony, I still get to explore it, I would 3 think. 4 C.O. STUBCHAER: Mr. Nomellini? 5 MR. NOMELLINI: I think the testimony by the maker of 6 the motion here is inappropriate, but it's absolutely clear 7 that our cross-examination on this rebuttal testimony 8 should be able to pursue what this backstop means in terms 9 of both water quality and the fish flow requirement. 10 That's what the testimony was about. If we're not allowed 11 some flexibility to cross-examining on this, we're going to 12 have a very short cross-examination when I get there. I 13 think it's very clear. 14 MR. BRANDT: Is that an offer? 15 C.O. STUBCHAER: Yeah, is it a promise? 16 MEMBER DEL PIERO: We're taking up a collection up 17 here. 18 C.O. STUBCHAER: Time-out a minute. 19 (Off the record from 10:45 a.m. to 10:47 a.m.) 20 C.O. STUBCHAER: We're going to allow the witness to 21 answer the questions to the best of his ability, and please 22 try to keep your questions within the scope of rebuttal. 23 MR. HERRICK: Certainly, Mr. Chairman. 24 Mr. Renning, let me rephrase the last question as 25 best I can remember it. CAPITOL REPORTERS (916) 923-5447 10019 1 Is it your understanding that the agricultural 2 objective for water quality at Vernalis is a requirement of 3 the New Melones Project? 4 MR. RENNING: Yes. 5 MR. HERRICK: And do you have an understanding about 6 whether or not the fishery requirement for flows at 7 Vernalis is an obligation of the New Melones Project? 8 MR. RENNING: There is a fishery requirement that is 9 imposed by our water rights, and the Central Valley 10 Improvement Act also imposes fishery requirements upon the 11 project. 12 MR. HERRICK: The fishery requirement on the water 13 right, are you referring to, what is it, the 1987 agreement 14 with DFG? 15 MR. RENNING: Yes, I believe that is the one. 16 MR. HERRICK: And that is specific to the New Melones 17 permits or operation of the project; is that correct? 18 MR. RENNING: Yes. 19 MR. HERRICK: Does the CVPIA direct the -- to your 20 knowledge, does the CVPIA directed the Bureau to make 21 releases from Vernalis for New Melones? 22 MR. RENNING: I'm sorry, would you say that again? 23 MR. HERRICK: Does the CVPIA direct the Bureau to 24 make specific releases from New Melones for Delta purposes? 25 MR. RENNING: I'm not sure of the exact language in CAPITOL REPORTERS (916) 923-5447 10020 1 the CVPIA. I simply note that it does through -- through 2 the Fish and Wildlife Service does impose, or can impose 3 fishery release requirements upon -- on various features 4 of the CVP including New Melones. 5 MR. HERRICK: Mr. Renning, I understood some -- 6 C.O. STUBCHAER: We're trying to turn up the other 7 mic. 8 MR. HERRICK: I thought the plate in my head was 9 going off. 10 Mr. Renning, I understood your testimony to state 11 that -- 12 MEMBER DEL PIERO: Somewhere around the back of the 13 room, Mr. Herrick. 14 MR. HERRICK: Mr. Renning, I understood some of your 15 testimony to be that notwithstanding the San Joaquin River 16 Agreement flows, the Bureau would seek to provide 17 additional flows; is that correct? 18 MR. RENNING: Yes. We through the Water Acquisition 19 Program would seek to meet whatever requirements we have on 20 the San Joaquin. 21 MR. HERRICK: And by that I took it to mean that if 22 the existing flow or the target flow does not come up to 23 the VAMP flow amounts, the Bureau would be trying to 24 provide that additional water? 25 MR. RENNING: Yes. CAPITOL REPORTERS (916) 923-5447 10021 1 MR. HERRICK: Now, that is a commitment by the Bureau 2 to attempt to do that? 3 MR. RENNING: Yes. 4 MR. HERRICK: And I'm -- again, I'm not trying to 5 part words here, but that's your interpretation of the 6 obligations or statements in the San Joaquin River 7 Agreement; is that correct? 8 MR. RENNING: Yes, as I understand it. 9 MR. HERRICK: Okay. Now, Mr. Renning, I think we 10 would all agree that the State Board staff through the DEIR 11 and then Mr. Steiner, on behalf of the San Joaquin River 12 Group, have analyzed the effects of the San Joaquin River 13 Agreement to one degree or another; would you agree with 14 that? 15 MR. RENNING: Yes. 16 MR. HERRICK: I don't find in any of that analysis an 17 analysis of additional purchases, or additional releases. 18 Is that your understanding, too? 19 MR. RENNING: I'm not completely familiar with all of 20 those studies. It's my understanding, though, that water 21 purchases are not included in those studies. 22 MR. HERRICK: So on what basis do you think the Board 23 can make a decision to adopt a program that hasn't analyzed 24 all the potential effects? 25 MR. RENNING: I'm not sure the Board has all this CAPITOL REPORTERS (916) 923-5447 10022 1 testimony in evidence before them. That's up to them to 2 check. 3 MR. HERRICK: Regardless of what the State Board does 4 through this process, is the Bureau going to proceed with 5 additional purchases on the other tributaries to the San 6 Joaquin River in order to provide the AFRP flows? 7 MR. RENNING: Yes, we have a program to do that. I 8 don't know the details of the extent of the program or what 9 exactly the objectives are, but that program is out there 10 and is operating. 11 MR. HERRICK: And aren't those flows generally 12 greater than the flows that are required under the 1995 13 Water Quality Control Plan? 14 MR. EMRICK: I would object to the question. He 15 needs to specify what flows he's talking about, what river, 16 whether it's the San Joaquin or its tributaries. 17 C.O. STUBCHAER: Can you rephrase the question. 18 MR. HERRICK: Certainly. 19 Mr. Renning, is it your understanding of the AFRP 20 program that it seeks to provide flows on the various 21 tributaries to the San Joaquin River? 22 MR. RENNING: I know that it seeks to provide 23 different flows than exist now on the various tributaries, 24 but I do not know to what degree it intends to meet certain 25 flows. CAPITOL REPORTERS (916) 923-5447 10023 1 MR. HERRICK: And those existing flows that you 2 reference, would those roughly correlate to the existing 3 flows that the San Joaquin River Agreement is basing its 4 calculations on? 5 MR. RENNING: Yes, as far as I know. 6 MR. HERRICK: So regardless of what the State Board 7 does through these hearings, the existing flow under the 8 CVPIA's AFRP would be different than what the existing 9 flows which are contained in the SJRA are? 10 MR. RENNING: I don't quite follow that. I think 11 that those are two different programs. And that to some 12 degree they interact, but they can act independently as 13 well. 14 MR. HERRICK: Okay. But your testimony today is to 15 clarify, to some degree, what backstopping the San Joaquin 16 River Agreement means, correct? 17 MR. RENNING: Yes. 18 MR. HERRICK: And we know from Mr. Steiner's 19 testimony that the San Joaquin River Group Authority has 20 done some modeling which shows year type -- over the past 21 73 years -- year type, existing flow, flow target; do you 22 recall that? 23 MR. RENNING: Yes. 24 MR. HERRICK: Now, what you're backstopping, as I 25 understand from the previous question, what you're CAPITOL REPORTERS (916) 923-5447 10024 1 backstopping is if the existing flow or the target flow 2 isn't sufficient, you're backstopping the 1995 Water 3 Quality Control Plan; is that correct? 4 MR. RENNING: Yes. 5 MR. HERRICK: So in order to determine what you're 6 actually backstopping we need to check what those existing 7 flows or target flows would be. Would you agree with that? 8 MR. RENNING: Yes. 9 MR. HERRICK: Well, if the CVPIA, which the Bureau is 10 seeking to implement, is going to some degree provide 11 different existing flows, increase the flows in the 12 tributaries, don't we need to examine that in order to 13 determine what your backstop is? 14 MR. RENNING: I'm not sure we know on a voluntary 15 basis what we, Interior, are going to do by the way of 16 water purchases for AFRP. I think that that is a matter 17 that is determined on a year-by-year basis and may change 18 as conditions with the fisheries change. And that at this 19 point in time it would be difficult to propose or include a 20 long-term operation that assumes anything like that. 21 MR. HERRICK: I understand that, but do you 22 understand that this process is trying to examine the 23 effects of any proposed action that's taken by the Board 24 here? 25 MR. RENNING: Yes. CAPITOL REPORTERS (916) 923-5447 10025 1 MR. HERRICK: So if the Bureau is trying to change 2 the existing flow through the AFRP Program, don't we need 3 to know that before we can analyze the effects here? 4 MR. RENNING: Well, we would certainly like to know 5 as much as we could about everything, but I think that we 6 don't necessarily have all of the time frames of how these 7 programs are going to work such that everything could be 8 integrated and examined at this point in time. 9 MR. HERRICK: Do you know whether or not the 10 environmental review for the CVPIA is examining the 11 alternatives for this process as part of its base case 12 analysis? 13 MR. RENNING: I don't know enough about the 14 programmatic EIS for CVPIA to present any testimony. 15 MR. HERRICK: Okay. Let me clarify what the backstop 16 would be in a particular year. Again, I'm reading from 17 Daniel Steiner's testimony, which is San Joaquin River 18 Group Exhibit 11. I'm on page 14 of his. 19 I don't mean to trick you on it, I just want to 20 clarify what it is you're backstopping. And let me preface 21 it by saying: The agreement does provide for some 22 relaxation in some years of the supplemental flow 23 requirement; do you agree with that? 24 MR. RENNING: Yes. 25 MR. HERRICK: Okay. Let's just take 1990 and that's CAPITOL REPORTERS (916) 923-5447 10026 1 a critical year. And Mr. Steiner's testimony shows under 2 Line 7 -- or column 7 that the existing flow would be 1711 3 cfs. And then the flow target is 2,000 cfs. Let me just 4 show you the two so I'm not tricking you there. 5 MR. RENNING: Okay. 6 MR. HERRICK: I said page 14 of Mr. Steiner's 7 testimony which is correct, but it's also Table 1 in his 8 testimony. 9 Now, the Water Quality Control Plan in a critical 10 year is 3110 or 3540 cfs. Now, what is the Bureau trying 11 to -- what flow is the Bureau trying to get at Vernalis 12 under its backstop if the existing flow is 1700, target 13 flow is 2,000, but the Water Quality Control Plan is 3100 14 or more, what is the Bureau trying to do? 15 MR. RENNING: I'm sorry, but I'm simply not familiar 16 enough with the San Joaquin Agreement and the backstop of 17 the Vernalis portion of the San Joaquin Agreement to 18 comment upon that. My testimony focused primarily on the 19 backstop as it relates to the rest of the valley and the 20 water right holders in the rest of the valley. 21 MR. HERRICK: I appreciate that answer, and again I'm 22 just trying to explore that with you. Your testimony did 23 state that the Bureau is assuming during the term of the 24 San Joaquin River Agreement, those portions of the San 25 Joaquin River -- those portions of the 1995 Water Quality CAPITOL REPORTERS (916) 923-5447 10027 1 Control Plan for the San Joaquin River. 2 Do you, then, not know in a year like 1990 whether 3 the Bureau would be trying to purchase enough water to meet 4 the flow objective of the San Joaquin River Agreement, or 5 the Water Quality Control Plan objective? 6 MR. RENNING: I included an example in my testimony, 7 it's on Page 2 of my testimony, where the target flow was 8 2,000 cfs. We would, Reclamation, would seek to acquire 9 enough water to meet the 3200 cfs flow. 10 MR. HERRICK: Okay. I appreciate that. In my 11 example the target flow would not be met by the San Joaquin 12 River Agreement, because of the relaxation standard. 13 Are you then trying to buy not only the extra 1300 14 cfs -- provide, but also the 300 cfs which the existing 15 flow is below the target? 16 MR. RENNING: Well, let me qualify my answer: I 17 don't know all of the details of how exactly the San 18 Joaquin River Agreement is intended to work, but 19 Reclamation's backstop, our commitment is to meet those 20 higher flows if we can acquire that water. 21 MR. HERRICK: Okay. 22 MR. RENNING: And I'm sorry, but I'm not giving you a 23 precise enough answer to answer your question, but -- 24 MR. HERRICK: That's fine. I believe in your 25 testimony you said that there are a couple of methods of CAPITOL REPORTERS (916) 923-5447 10028 1 providing that additional flow which you seek in those 2 cases. And those are either purchases on the Stanislaus 3 River or purchases on other tributaries to the San Joaquin 4 River; is that correct? 5 MR. RENNING: Yes. 6 MR. HERRICK: Now, is it your recollection that the 7 -- and this is the foundation for the next couple 8 questions, but it's my understanding that the modeling done 9 for the San Joaquin River Agreement assumes as the starting 10 point the Interim Operations Plan? 11 MR. RENNING: Yes, that's right. 12 MR. HERRICK: And the Interim Operation Plan attempts 13 to provide certain flows for other purposes, fishery 14 purposes; is that correct? 15 MR. RENNING: Yes, that's right. 16 MR. HERRICK: And the flow down the Stanislaus has a 17 limitation -- excuse me, let me start over. 18 The releases from New Melones down the Stanislaus 19 have a limitation of 1500 cfs, correct? 20 MR. RENNING: Yes. 21 MR. HERRICK: Generally. 22 MR. RENNING: That's an operational limitation that 23 we have. 24 MR. HERRICK: In those instances then when the Bureau 25 is already releasing 1500 cfs down the Stanislaus, then CAPITOL REPORTERS (916) 923-5447 10029 1 there is no opportunity to purchase water on the Stanislaus 2 in order to meet the target flow or the water quality 3 control flow; is that correct, because you can't release 4 more water? 5 MR. RENNING: Yes, that would be correct. 6 MR. HERRICK: So that's not a possibility for the 7 backstop in certain events? 8 MR. RENNING: That's right. 9 MR. HERRICK: Now, another possibility is purchases 10 on other tributaries; is that right? 11 MR. RENNING: Yes. 12 MR. HERRICK: And would you agree that the work done 13 by Staff on the DEIR as well as Mr. Steiner's analysis have 14 taken into account what the effects of meeting the water 15 quality standard on Vernalis are in certain circumstances 16 which would include purchases on the tributaries? 17 MR. RENNING: I don't -- I haven't looked at 18 everything, every study in the Draft EIR, and I can't 19 really answer that question, because I don't know. 20 MR. HERRICK: Okay. And maybe that question wasn't 21 quite correct. The alternatives for implementing the 1995 22 Water Quality Control Plan contain different possibilities 23 which include potentially different flows on different 24 tributaries; is that correct? 25 MR. RENNING: It certainly could, but I just don't CAPITOL REPORTERS (916) 923-5447 10030 1 know the details of those studies. 2 MR. HERRICK: And I don't want you to answer on the 3 details if you don't know, but I'm trying to lay the 4 foundation once again. 5 Some of the alternatives are according to water 6 right priorities and that may change flows upstream of the 7 tributaries, would you agree with that? 8 MR. RENNING: Yes. 9 MR. HERRICK: And one of the alternatives is per 10 tributary, that might change flows on those different 11 tributaries; is that correct? 12 MR. RENNING: Yes. 13 MR. HERRICK: Okay. Now, in the analysis of those by 14 the State Board staff in the DEIR, depending on where the 15 water comes from allows them to calculate under their 16 models how that effects meeting the water quality standard 17 at Vernalis; is that correct? 18 MR. RENNING: Yes, that's right. 19 MR. HERRICK: So if you're going to do purchases to 20 backstop the flow requirements at Vernalis, won't it be 21 necessary to analyze where those purchases come from? 22 MR. RENNING: Yes. 23 MR. HERRICK: Has the Bureau done those analyses? 24 MR. RENNING: We have not -- we have not done a 25 comprehensive long-term analysis of this program. Each CAPITOL REPORTERS (916) 923-5447 10031 1 year that we have implemented the program we have done 2 analyses that address that particular year's program. 3 MR. HERRICK: Well, let's take a hypothetical. Let's 4 go back to year 1990 under Mr. Steiner's analysis and he 5 shows approximately 1700 cfs at Vernalis. 6 And I understand your testimony to be that the 7 Bureau, then, is trying to meet that 3200 flow as stated in 8 the Water Quality Control Plan; is that correct? 9 MR. RENNING: Yes. 10 MR. HERRICK: Now, in a critical year where there's 11 1700 cfs flowing at Vernalis, again, one of the 12 possibilities is then, let's take the Merced River, perhaps 13 the Bureau as it has proposed in the past might pay Merced 14 to make power releases that would have occurred later in 15 the year occur during the pulse flow. Is that one of the 16 possibilities? 17 MR. RENNING: Yes, that is a possibility. 18 MR. HERRICK: Now, if it's a power release change, as 19 I just hypothesized, that would mean that there's less 20 water flowing down the Merced River in that later time; is 21 that correct? 22 MR. RENNING: Yes, that could be a result of that 23 purchase. 24 MR. HERRICK: So if the Bureau makes a purchase like 25 that to increase the flows during the pulse flow it may CAPITOL REPORTERS (916) 923-5447 10032 1 hinder its ability to meet water quality later in the year; 2 is that correct? 3 MR. RENNING: Yes, it could. I use the word 4 "purchase" and I don't think purchase is the right word. 5 "Acquisition" is the right word. 6 MR. HERRICK: Okay. Because besides purchasing 7 somebody's stored water there are agreements to have 8 somebody bypass the flow, not trap it, there are different 9 ways to categorize those sort of transactions, correct? 10 MR. RENNING: Yes. 11 MR. HERRICK: And by my questions I meant to include 12 all of those possibilities. 13 MR. RENNING: Yes. 14 MR. HERRICK: So if any of your answer is different 15 -- to any of those questions is different because of that, 16 please clarify that. 17 MR. RENNING: I will. 18 MR. HERRICK: So I give one hypothetical where an 19 attempt to backstop the agreement may potentially 20 exacerbate the ability of the Bureau to backstop another 21 part of the agreement, the water quality; is that correct? 22 MR. RENNING: Yes, that could happen. 23 MR. HERRICK: And, again, has the Bureau done any 24 analysis to present to this Board to show those effects 25 from those possibilities? CAPITOL REPORTERS (916) 923-5447 10033 1 MR. RENNING: No, we have not done any analysis 2 that's part of this process that's going on right now. 3 MR. HERRICK: And the Bureau hasn't ruled out any 4 such acquisition like I just discussed, has it? 5 MR. RENNING: We have not ruled out anything. 6 MR. HERRICK: And, in fact, in order to provide the 7 AFRP flows the Bureau is looking into those sorts of 8 acquisitions; is that correct? 9 MR. RENNING: I believe we are, yes. 10 MR. HERRICK: Now, you referenced in your testimony 11 that the Bureau had already been doing some purchases under 12 CVPIA under the Interim Water Acquisition Program; is that 13 correct? 14 MR. RENNING: Yes. 15 MR. HERRICK: In fact, being an interim program, is 16 that program still going on, are purchases still being made 17 under that or some other portion of the CVPIA? 18 MR. RENNING: I don't know. I simply know that we 19 have that program going on. And the exact title and the 20 exact basis for the purchases that we've made, I'm not 21 familiar with. 22 MR. HERRICK: Were you familiar with any of the 23 purchases that did occur under the Interim Water 24 Acquisition Program? 25 MR. RENNING: As I stated, yes, I'm familiar with CAPITOL REPORTERS (916) 923-5447 10034 1 some of the purchases that have been made in the past 2 several years. 3 MR. HERRICK: And do you recall that one of those was 4 from Merced? 5 MR. RENNING: Yes. 6 MR. HERRICK: And do you recall the environmental 7 analysis done by the Bureau for that purchase? 8 MR. RENNING: Yes, I know that we did an 9 environmental analysis for them. 10 MR. HERRICK: And would you agree that the 11 environmental analysis did accept the possibility that 12 there could be an effect on the Bureau's ability to meet 13 the water quality standard at Vernalis in certain 14 circumstances? 15 MR. RENNING: Yes, I believe that that was discussed 16 in that analysis. 17 MR. HERRICK: And, of course, because we've had three 18 or more wet years in a row now that did not occur; is that 19 correct? 20 MR. RENNING: Yes, that's right. 21 MR. HERRICK: And let's say if we had critical years 22 instead of wet years, then there might have been an adverse 23 effect on the ability of the Bureau to meet the water 24 quality standard at Vernalis; is that correct? 25 MR. RENNING: Yes, that's right. But I think that if CAPITOL REPORTERS (916) 923-5447 10035 1 there had been critical years instead of what occurred, 2 that our water purchase program might have been different 3 than what did occur. And it's probably difficult to say 4 what we might have done under certain circumstances. 5 MR. HERRICK: If the Board will bear with me, I was 6 writing questions based on his verbal answers. And, again, 7 I would like to find it in his written part that I'm going 8 to talk about, so if you'll give me a couple minutes, I'd 9 appreciate that. 10 C.O. STUBCHAER: Okay. 11 MR. HERRICK: I found it. 12 Mr. Renning, at the bottom of Page 2 of your 13 testimony you briefly state that, 14 (Reading): 15 "In effect, our responsibility for both the flow 16 objectives and certain exports limitations 17 remain in place and we intend to pursue 18 compliance to the best of our ability for those 19 two years." 20 Now, that's under the section where you're talking 21 about termination of the agreement, but the Bureau 22 maintaining the obligation for two years thereafter; is 23 that correct? 24 MR. RENNING: Yes. 25 MR. HERRICK: Now, I was just unclear as I was CAPITOL REPORTERS (916) 923-5447 10036 1 listening to your verbal testimony, are you saying that the 2 export limitations contained in the San Joaquin River 3 Agreement will be undertaken by the Bureau for that 4 two-year period after cancellation of the agreement? 5 MR. RENNING: This is one part of the agreement that 6 I'm not completely familiar with. And I would just have to 7 say the agreement speaks for itself. 8 MR. HERRICK: Okay. And I don't mean to badger you 9 on this, I'm just confused. There are export limitations 10 outside, or different from the San Joaquin River Agreement, 11 and that's what I'm asking you: 12 Whether or not the obligation post-termination 13 agreement for two years includes the San Joaquin River 14 export limitations, or does it include the normal export 15 limitations that exist in the absence of the agreement? 16 If you know. 17 MR. RENNING: I'm sorry, I don't know details about 18 it. 19 MR. HERRICK: In the absence of the San Joaquin River 20 Agreement, as far as we know, the biological opinions that 21 govern the Bureau's export operations would continue? 22 MR. RENNING: Yes. 23 MR. HERRICK: It's always possible those may change 24 in the future, but as of now they're in existence; is that 25 correct? CAPITOL REPORTERS (916) 923-5447 10037 1 MR. RENNING: Yes. 2 MR. HERRICK: In the event -- well, let me back up. 3 I think we agreed earlier that notwithstanding the 4 Board's actions here today, or here through this process 5 the Bureau intends to continue with the Interim Operation 6 Plan for New Melones; is that correct? 7 MR. RENNING: Yes. 8 MR. HERRICK: Now, that's assuming that the Board 9 doesn't make permit changes that force change to that; is 10 that correct? 11 MR. RENNING: That's right. 12 MR. HERRICK: All right. And we also stated earlier 13 that according to the Bureau's analyses, water quality 14 violations will occur in approximately 40 percent of the 15 year types under the Interim Operation Plan; is that 16 correct? 17 MR. RENNING: Yes, that's right. 18 MR. HERRICK: Now, if the San Joaquin River Agreement 19 is terminated and the Bureau undertakes the 20 responsibilities -- the responsibility for meeting the 21 objectives in the 1995 Water Quality Control Plan, where 22 does the Bureau intend to get water to meet the 1995 Water 23 Quality Control Plan objectives? 24 MR. RENNING: I would presume that we still have the 25 opportunity to enter into agreements with parties on the CAPITOL REPORTERS (916) 923-5447 10038 1 San Joaquin River. 2 MR. HERRICK: So the activities of the Bureau post 3 San Joaquin River Agreement termination are the same as the 4 backstop during the agreement, that is to try to find 5 sufficient water? 6 MR. RENNING: If the San Joaquin Agreement is 7 terminated, the -- I'm certain that that would cause a 8 reassessment of our operation plans and everyone else's 9 operation plans on the San Joaquin River. And it's not 10 possible for me to say exactly what we would do under those 11 circumstances. We would have to face that as it occurred. 12 MR. HERRICK: So the Bureau doesn't have any 13 contingency plan for meeting those objectives if the 14 agreement is terminated? 15 MR. RENNING: We don't have a firm cast-in-concrete 16 contingency plan. We have various options that are open to 17 us. And some or all of those options might be pursued. 18 MR. HERRICK: Would those options include different 19 operation of New Melones? 20 MR. RENNING: It certainly could. 21 MR. HERRICK: Now, Mr. Renning, again I apologize for 22 maybe perhaps having missed something during your verbal 23 testimony, I understand the Bureau's backstopping the pulse 24 flow objective. Is the Bureau backstopping the other 25 requirements -- the requirements other than the pulse flow CAPITOL REPORTERS (916) 923-5447 10039 1 contained in the 1995 Water Quality Control Plan? 2 MR. RENNING: The Delta outflow requirements, yes. 3 MR. HERRICK: And as I read the Water Quality Control 4 Plan there are other river flow requirements under the plan 5 separate from the pulse flow requirement, is that -- do 6 you recall that? 7 MR. RENNING: I'm not sure exactly what you're 8 referring to. 9 MR. HERRICK: Let me give you Page 19 of the Water 10 Quality Control Plan, 1995 Water Quality Control Plan. And 11 I believe under river flows, besides the pulse period there 12 are other flow requirements? 13 MR. BRANDT: On the San Joaquin River? 14 MR. HERRICK: Yes, on the San Joaquin River. 15 MR. RENNING: Yes. 16 MR. HERRICK: During the operation of the San Joaquin 17 River Agreement is the Bureau backstopping those other 18 flows, too? 19 MR. RENNING: Yes, we are. 20 MR. HERRICK: Okay. And is the Bureau backstopping 21 those other flows in the event -- for two years in the 22 event of the termination of the San Joaquin River 23 Agreement? 24 MR. RENNING: Yes, we are. 25 MR. HERRICK: And as with the backstop during a pulse CAPITOL REPORTERS (916) 923-5447 10040 1 flow would it be correct to say the Bureau doesn't have any 2 contingency plan for meeting those other obligations 3 outside of the pulse flow? 4 MR. RENNING: As I said before, we don't have a firm 5 cast-in-concrete contingency plan, but we know that there 6 are various options that could be pursued. 7 MR. HERRICK: A portion of your testimony talks about 8 the effects on other parties and the Bureau's -- I don't 9 want to misstate that -- the Bureau's attempt to make sure 10 those are limited or do not occur; would that be correct to 11 say? 12 MR. RENNING: Yes. 13 MR. HERRICK: Now, I noticed in your oral testimony 14 you talked about not harming any water right holders -- 15 let me use the language, "imposing a further responsibility 16 on any water right holders," I believe you said, "upstream 17 of Vernalis." 18 Is that correct? 19 MR. RENNING: I think so. 20 MR. HERRICK: Okay. 21 MR. RENNING: Where exactly are you referring to? 22 MR. HERRICK: I'm on Page 3 in that paragraph 23 entitled "Effect on non-parties." And, again, I was not 24 quoting it. But I take it that all the sentences together 25 in that paragraph to mean that you've looked at the effect CAPITOL REPORTERS (916) 923-5447 10041 1 on water right holders upstream of Vernalis? 2 That's my interpretation. Please, correct me if 3 I'm misinterpreting it. 4 MR. RENNING: I'm sorry, I'm still not certain what 5 you're referring to. 6 MR. HERRICK: In that paragraph you state that, 7 (Reading): 8 "Reclamation will meet its 'backstop' commitment 9 in such a way as to not impose any further 10 responsibility upon any water right holders not 11 a party to this agreement." 12 Now, that doesn't limit it to any area of water 13 right holders, but the following sentences are, 14 (Reading): 15 "We have studied the scope of our commitment and 16 how it may affect other parties both on the 17 San Joaquin above Vernalis and in other river 18 systems." 19 Is it correct then that you're -- your backstop is 20 seeking to not impose any further responsibilities on water 21 right holders upstream of Vernalis? 22 MR. RENNING: Yes, that's right. And what we meant 23 by that is in the context of what we're saying here is that 24 the -- there are parties on the San Joaquin River that are 25 not parties to the San Joaquin Agreement. CAPITOL REPORTERS (916) 923-5447 10042 1 But the San Joaquin River Agreement more or less 2 covers them. And our backstop to the agreement will also 3 cover whatever responsibilities they might have had if the 4 San Joaquin Agreement was not in place. 5 MR. HERRICK: What about the water right holders 6 downstream of Vernalis? 7 MR. RENNING: They would be -- 8 MR. BRANDT: Objection. Vague. "Downstream of 9 Vernalis" for the things that are upstream? Objection. 10 Vague. I don't understand what he's asking. 11 C.O. BROWN: I understand it. 12 C.O. STUBCHAER: But you can make, "On the San 13 Joaquin River." 14 MR. HERRICK: I will certainly restate it. I didn't 15 mean to be vague. 16 I took your previous answer that the Bureau has 17 done an analysis to make sure that there aren't any 18 additional obligations on water right holders upstream of 19 Vernalis. Is that correct? 20 MR. BRANDT: Objection. Vague. For which standard 21 are we talking about? Are we talking about the Vernalis 22 standard? I just want to make sure we're clear. 23 MR. HERRICK: All right. Let me start again. 24 Mr. Renning, I understand your first paragraph 25 under "Effect on non-parties" to be a brief discussion on CAPITOL REPORTERS (916) 923-5447 10043 1 whether or not the Bureau's backstopping of the 1995 Water 2 Quality Control Plan objectives might impose some 3 additional burden on other water right holders; is that 4 correct? 5 MR. RENNING: Yes. 6 MR. HERRICK: And I understand your written testimony 7 to say that your analysis of this dealt with those water 8 right holders upstream of the Vernalis on the San Joaquin 9 or its tributaries; is that correct? 10 MR. RENNING: No. My analysis covers the water 11 rights that are addressed in Alternative 3 -- the Board's 12 Alternative 3. And to the extent that the San Joaquin 13 Agreement is in place it covers all the water right holders 14 above Vernalis. 15 The assumption is in Alternative 8, San Joaquin 16 River Agreement alternative, that those flows are now going 17 to be what the system is going to need at Vernalis. And 18 any requirements that would have been imposed by one of the 19 other alternatives on some San Joaquin River right holder 20 is not going to be imposed, because the San Joaquin River 21 is going to be imposed. 22 All of the other right holders in the Central 23 Valley to the extent that our backstop of the San Joaquin 24 Agreement imposes greater responsibility on them, we are 25 proposing that there be this process by which a correction CAPITOL REPORTERS (916) 923-5447 10044 1 to whatever our requirements are, whatever the results of 2 our operations to meet the Delta standards would be would 3 not impose any further responsibility upon those other 4 parties. 5 MR. HERRICK: Do those other parties include the 6 water users in the Delta? 7 MR. RENNING: In a sense they do. But the studies 8 that the Board has done in Alternative 3, which we looked 9 at here, the Delta right holders are assumed to be of a 10 senior enough priority that they're not effected. 11 MR. HERRICK: Did your analysis determine whether or 12 not under some circumstances those senior water right 13 holders that you refer to in the Delta are not receiving a 14 sufficient amount of water to satisfy those senior right 15 holders? 16 MR. RENNING: The studies assumed that the Delta 17 standards were met. 18 MR. HERRICK: Okay. Let me interrupt you for a 19 second. The standards are different than water rights, 20 correct? There are flow standards for fish. There are 21 flow standards -- excuse me, there are standards for water 22 quality, which are not put in terms of flow but of EC or 23 TDS, previously. I just want to clarify that. 24 In your analysis were you looking at making sure 25 that implementation of the standards doesn't harm any other CAPITOL REPORTERS (916) 923-5447 10045 1 water right holder, or were you looking to see whether or 2 not any other water right holder would have to meet the 3 standard? 4 MR. RENNING: We did not and the Board's studies did 5 not look at specific water rights, whether they were met or 6 not met. I haven't looked at all of the studies that 7 they've done. There may have been some of the alternatives 8 that they examined that may have done that, but I am simply 9 not sure on that question. 10 MR. HERRICK: So then the Bureau has done no analysis 11 to determine whether or not implementation of the San 12 Joaquin River Agreement, including the Bureau's backstop, 13 can adversely affect South Delta riparian's ability to 14 exercise their water rights? 15 MR. RENNING: No, we have not looked at that. 16 MR. HERRICK: Okay. Let's move over to water 17 quality. Has the Bureau done any analysis to determine 18 whether or not implementation of the San Joaquin River 19 Agreement, with the Bureau's backstop included in that, 20 affects the Bureau's ability to meet the Vernalis water 21 quality objective for agricultural use? 22 MR. RENNING: We know that our commitment to the 23 backstop, which includes the New Melones Interim Operation 24 Plan, will under certain circumstances not meet the 25 Vernalis water quality requirement. CAPITOL REPORTERS (916) 923-5447 10046 1 MR. HERRICK: Okay. Now, in order to meet the 2 fishery flow requirements the Bureau has said here today 3 and previously that it's going to try to make purchases in 4 order to meet that portion of the 1995 Water Quality 5 Control Plan, that's what they're going to attempt to do; 6 is that correct? 7 MR. RENNING: Yes. 8 MR. HERRICK: What is the Bureau going to attempt to 9 do to meet the water quality objective at Vernalis for 10 agricultural use under the Water Quality Control Plan? 11 MR. RENNING: I'm not sure what we would do under 12 those circumstances. 13 MR. HERRICK: Is the Bureau proposing to purchase 14 water for that purpose? 15 MR. RENNING: We believe that the plan that we have, 16 the New Melones Interim Operation Plan, addresses the 17 meeting of the various requirements that we have that exist 18 on the San Joaquin River in a reasonable way. There may be 19 circumstances under which the standards are not met and 20 that there are not any reasonable alternatives open to meet 21 those standards. 22 MR. HERRICK: But the reasonable alternatives for 23 meeting those standards includes attempts at acquisitions 24 of water for fishery flows, but do not include acquisitions 25 of water for water quality; is that correct? CAPITOL REPORTERS (916) 923-5447 10047 1 MR. RENNING: I don't know. 2 MR. HERRICK: Okay. 3 MR. RENNING: I don't know what decisions that we 4 have made regarding purchases for water quality. To a 5 great degree, the availability of water is dependent upon 6 conditions, i.e., whether people will sell water to us, and 7 the circumstances under which there may be water quality 8 problems may also be the kind of years in which there is 9 not water available for purchase. 10 MR. HERRICK: Wouldn't that be true for purchases 11 needed for fishery flows? 12 MR. RENNING: Yes, that would hold for fishery 13 purposes, too. 14 MR. HERRICK: So would it be fair to say that your 15 backstop for the 1995 Water Quality Control Plan includes a 16 commitment to attempt to make purchases for fishery 17 obligations, but no actions other than the Interim 18 Operation Plan of New Melones for water quality 19 requirements? 20 MR. RENNING: Like I said before, there are certain 21 aspects of the San Joaquin River Agreement that I am not 22 familiar with and I simply don't know what would happen 23 under certain circumstances. 24 MR. HERRICK: And, again, Mr. Renning, I apologize 25 for, you know, trying to hammer this point home, but it's CAPITOL REPORTERS (916) 923-5447 10048 1 certainly important to the South Delta Water Agency. 2 You're involved with these very matters for the 3 Bureau, aren't you, these very matters of what's necessary 4 to meet the various flows, export limitations, all the 5 things that are involved in the San Joaquin portion of the 6 Water Quality Control Plan? 7 MR. RENNING: I'm one of a number of people that are 8 involved in this. 9 MR. HERRICK: Yes, there are certainly a large number 10 of people the Bureau is involved with. Are you aware of 11 any programs by the Bureau of Reclamation to help it meet 12 its water quality objective at Vernalis for agricultural 13 use? 14 MR. RENNING: We are involved with users on the west 15 side in scheduling the release of certain flows in the 16 springtime that are, in part, designed to aid water quality 17 at Vernalis. 18 MR. HERRICK: Has the Bureau begun any program that 19 we can refer to that seeks to accomplish that other than 20 discussions, I mean? 21 C.O. STUBCHAER: Mr. Renning, again, could you put 22 the microphone over to that -- 23 MR. RENNING: I'm sorry. 24 C.O. STUBCHAER: It's all right. 25 MR. RENNING: I think that that particular program is CAPITOL REPORTERS (916) 923-5447 10049 1 in place right now. I don't know the details of it, but I 2 understand that it is in place. 3 MR. HERRICK: Now, if the -- again, getting back to 4 your effect on non-parties, would it be fair to say that 5 the water quality objectives for agricultural use at 6 Vernalis is intended to protect certain water right 7 holders? 8 MR. RENNING: I think it's intended to protect 9 agricultural uses in the South Delta. 10 MR. HERRICK: Correct. And that's what I was getting 11 at. The reason there's an agricultural standard or 12 objective is because the Board on some previous date 13 determined that agriculture downstream of the measuring 14 point needed a certain quality of water; is that correct? 15 MR. RENNING: Yes. 16 MR. HERRICK: Now, if the San Joaquin River Agreement 17 with your backstop does not result in compliance with the 18 Vernalis water quality objective for agricultural use, 19 wouldn't you agree, then, that it is adversely affecting 20 those water right holders who depend on that agricultural 21 objective? 22 MR. RENNING: There is certainly an impact that is 23 occurring, but I think the question needs to be looked at 24 in the context of all of the other requirements that are 25 being met and how those other requirements would be CAPITOL REPORTERS (916) 923-5447 10050 1 affected if the system was operated solely to meet the 2 Vernalis water quality standard. 3 MR. HERRICK: Well, does that presuppose -- your 4 answer to that, does that presuppose, then, that your 5 proposal, the San Joaquin River Agreement, is going to meet 6 a whole bunch of objectives but not the water quality 7 objective for agricultural use? 8 MR. RENNING: No. We intend to meet the various 9 standards to the extent that we can in a reasonable way 10 that looks at the big picture of meeting all of those 11 standards. There may be circumstances in years in which 12 everyone suffers some impact. And there may be other years 13 which everyone has their standard met, has their 14 requirement met. But we believe that our plan is one that 15 is reasonable in the sense that all of the requirements are 16 met in such a way that that is reasonable -- 17 MR. HERRICK: Are there -- 18 MR. RENNING: -- given the circumstances that we have 19 in those particular years. 20 MR. HERRICK: Are there instances when the water 21 quality objective at Vernalis for agricultural use is not 22 being met, but fishery flows are being met? 23 MR. RENNING: I specifically don't know. I'd have to 24 look at the studies. 25 MR. HERRICK: If that were the case would the Bureau CAPITOL REPORTERS (916) 923-5447 10051 1 be willing to readjust its operations so those two 2 obligations share any burden imposed by the year type? 3 MR. RENNING: Well, I think that our plan has already 4 gone through that sort of adjustment or give-and-take. And 5 I don't think that -- in particular circumstances we would 6 -- we would go back on that plan. You know, we've stated 7 what our plan is and we've told the rest of the world what 8 it is and where it is. 9 MR. HERRICK: Well, hasn't the Bureau and everybody 10 upstream of Vernalis said that the San Joaquin River 11 Agreement's provisions are equivalent or comparable to the 12 1995 Water Quality Control Plan for fishery pulse flows? 13 MR. RENNING: Yes, there was testimony to that 14 earlier in this hearing. 15 MR. HERRICK: But it's certainly not comparable to 16 the 1995 Water Quality Control Plan objective for 17 agricultural use at Vernalis, is it, since it has 40 18 percent violations? 19 MR. RENNING: Well -- 20 MR. BRANDT: Objection. Assumes facts not in 21 evidence. 22 C.O. STUBCHAER: Objection, what? 23 MR. BRANDT: Objection. Assumes facts not in 24 evidence. It assumes 40 percent. 25 MR. JACKSON: Those facts are in evidence. They were CAPITOL REPORTERS (916) 923-5447 10052 1 testified to -- 2 MR. HERRICK: They were testified to half an hour ago 3 by this witness. 4 C.O. STUBCHAER: All right. You may answer the 5 question. 6 MR. BRANDT: You need to clarify? 7 MR. RENNING: I don't want to be argumentative with 8 you, but I think that you also have to look at what would 9 happen if the San Joaquin Agreement were not in place and 10 how the system were operated. 11 And I would certainly think that the system's 12 ability to meet the water quality standard at Vernalis 13 would not be significantly different. And you would have 14 the same degree of noncompliance with the standard. 15 MR. HERRICK: Could you tell us what you base that 16 upon? And let me preface that question by saying I believe 17 that there was prior testimony presented by the South Delta 18 Water Agency that said just the contrary, that historic 19 violations are nowhere near the 40 percent modeled by the 20 Bureau. 21 Do you have any information that supports what you 22 just said, that it's the same sort of violation? 23 MR. RENNING: My statement is simply based upon my 24 understanding of the various studies that have been done. 25 And that the degree of compliance with the -- that the CAPITOL REPORTERS (916) 923-5447 10053 1 degree of compliance, or the degree of meeting all of the 2 various requirements that exist on the system, would be 3 very much the same whether the San Joaquin River Agreement 4 were in place or not. 5 MR. HERRICK: Isn't that, shall I say, "mucked up a 6 little bit" by the fact that you're analyzing new fishery 7 standards but generally the same water quality standard for 8 agricultural use? 9 MR. RENNING: That might well be. 10 MR. HERRICK: In your -- 11 MR. RENNING: I want to make sure that my statements 12 aren't misinterpreted here. The Bureau believes that the 13 San Joaquin Agreement is a reasonable way to approach the 14 question of meeting the Water Quality Control Plan 15 standards at Vernalis. We think that it offers a number of 16 advantages or -- it's better in a number of respects than 17 other alternatives that have been proposed. And our 18 testimony in Phase II goes to that. 19 MR. HERRICK: But would you agree with the prior 20 testimony given in these proceedings that in the 21 development of the San Joaquin River Agreement certain 22 interests were excluded from those discussions? 23 MR. RENNING: I'm not in a position to characterize 24 how various parties were or were not included in this. 25 That's simply beyond the scope of my knowledge. CAPITOL REPORTERS (916) 923-5447 10054 1 MR. HERRICK: In determining what's a reasonable 2 method of meeting the 1995 Water Quality Control Plan, does 3 the Bureau believe it can consult with fewer than all of 4 the interested parties on the San Joaquin River? 5 MR. RENNING: I'm speaking particularly of the New 6 Melones Interim Operation Plan. And I think that the 7 parties that were -- that attended those various meetings 8 covered the complete spectrum of the water that's 9 developed. 10 MR. HERRICK: Okay. But I thought our discussion 11 earlier established that the backstopping purchases 12 contemplated, or acquisitions contemplated, by the Bureau 13 may adversely affect its ability to meet the water quality 14 standard at Vernalis? 15 MR. RENNING: Well, they certainly may adversely 16 affect our ability to meet the standards, but I think the 17 question is: As to what degree do they affect our ability 18 to meet the standards? 19 There's a -- you know, there's a big difference 20 between a hundred point TDS change and a 500 point TDS 21 change. And that has to be taken into account when you 22 look at what the affect of these various plans are. And 23 that is what we do in the various operations, the various 24 acquisition programs that we have undertaken in the last 25 several years. CAPITOL REPORTERS (916) 923-5447 10055 1 MR. HERRICK: Do you mean a hundred point change 2 versus a 500 point change, or a hundred point increase over 3 the standard as opposed to a 500 point increase over the 4 standard? 5 MR. RENNING: I may have slipped on a banana peel 6 here and brought up points that I -- brought up values 7 that I can't fully support. I used them merely as examples 8 and I can't speak to those particulars. 9 MR. HERRICK: Mr. Renning, you talked about, again, 10 the effects on non-parties. And I believe in our 11 hypothetical earlier we discussed potential effects from 12 water acquisitions by the Bureau in its backstop efforts. 13 Do you recall that? 14 MR. RENNING: Yes. 15 MR. HERRICK: Now, if certain hypothetical methods of 16 acquiring water decreased flows at other times of the year, 17 could that not have an affect on riparians upstream of 18 Vernalis? 19 MR. RENNING: Presumably it could, but I'm not aware 20 of any significant riparian diverters upstream of Vernalis. 21 MR. HERRICK: Well, aren't there a couple of 22 districts immediately upstream of Vernalis that have both 23 contract water, groundwater and riparian diversion? 24 MR. RENNING: Yes, there may be. 25 MR. HERRICK: Has the Bureau done any analysis of how CAPITOL REPORTERS (916) 923-5447 10056 1 its backstopping may affect them in a dry or critical year? 2 MR. RENNING: No, we haven't done any. 3 MR. HERRICK: In your testimony you discussed 4 comparing the backstop in the absence of the San Joaquin 5 River Agreement. This was sort of general, but I wrote 6 down here you stated: What would the alternative be in the 7 absence of the San Joaquin Agreement? 8 You chose Alternative 3. Why did you choose 9 Alternative 3 instead of any of the other alternatives? 10 MR. RENNING: We chose Alternative 3 -- first of 11 all, this was done as an example, it was not done with any 12 presupposition of what the Board might adopt, but we do 13 feel that Alternative 3 is the logical one to which a 14 comparison should be made. 15 MR. HERRICK: I don't understand that. And, again, 16 you know, that may be your opinion. I'm just trying to 17 explore that. 18 Why is Alternative 3 a logical one? 19 MR. RENNING: Well, Alternative 2, that has complete 20 responsibility on the projects. And it doesn't make any 21 sense to compare it to that. 22 MR. HERRICK: Why not? 23 MR. RENNING: Because we have complete responsibility 24 under that circumstance. 25 MR. HERRICK: You know, I don't understand the point CAPITOL REPORTERS (916) 923-5447 10057 1 that the conclusion makes. 2 MR. RENNING: There's nothing to backstop it. 3 MR. HERRICK: No. We're talking about implementing 4 the 1995 Water Quality Control Plan. And you're comparing 5 the San Joaquin River Agreement with certain flows out of 6 New Melones and certain potential flows out of the other 7 areas and your backstop against, and that's what the 8 question is: Why did you choose Alternative 3 instead of 9 any of the other alternatives? 10 MR. RENNING: Well, Alternative 3 is one of the 11 alternatives that imposes the responsibility on other water 12 right holders, Alternative 2 does not. 13 MR. HERRICK: Okay. Are you making a difference 14 between -- are you trying to say you were examining the 15 effect on other water right holders as opposed to examining 16 the difference between one alternative amongst other 17 alternatives? 18 MR. RENNING: I don't understand your question. 19 MR. HERRICK: Are you familiar with -- well, 20 Alternative 2 puts the burden on the Bureau and DWR; is 21 that correct? 22 MR. RENNING: Yes. 23 MR. HERRICK: Are you familiar with the permit 24 changes that have been suggested by the South Delta Water 25 Agency if Alternative 2 were implemented? CAPITOL REPORTERS (916) 923-5447 10058 1 MR. RENNING: I -- I -- no, I'm not. 2 MR. HERRICK: In your analysis on -- I guess it's 3 the last -- I'm not sure -- last five pages of your 4 testimony, there's an overhead of one of those pages? 5 MR. RENNING: Yes. 6 MR. HERRICK: You examined 1923, '25 and '42; is that 7 correct? 8 MR. RENNING: Yes. 9 MR. HERRICK: And, again, going from Mr. Steiner's 10 document I see those years as being: '23 is an above year; 11 25 is a below normal year; and '42 is a wet year; is that 12 correct? 13 MR. RENNING: I presume those classifications are 14 right. 15 MR. HERRICK: The general year of classifications 16 include critical and dry, also. Is there a reason why you 17 didn't analyze those years? 18 MR. RENNING: The years that I picked out, or the 19 months that I picked out were ones in which the priority 20 cutoff occurred in the middle of the priority group. 21 The priority cutoffs tended to be such that every 22 one was cut off. And to show the difference between the 23 backstop if every one was already cut off doesn't really 24 show anything. So I picked particular months that had an 25 intermediate cutoff and that the effect of having the CAPITOL REPORTERS (916) 923-5447 10059 1 backstop or not having the backstop was apparent. 2 MR. HERRICK: Now, if you'll pardon my ignorance in 3 Term 91 law, do the categories of people who would be cut 4 off, are those categories of people who are junior to the 5 export permits, or does it include both junior and senior? 6 MR. RENNING: Well, Term 91 as it exists now covers 7 only very junior water rights with priorities of, I 8 believe, 1965 or greater. 9 MR. HERRICK: And your analysis is only including 10 those Term 91 divisions of water right holders? 11 MR. RENNING: No. It includes the divisions that 12 were included in the Board's analysis of Alternative 3. 13 And I'm sorry I don't have that with me, but if you look 14 through that table you'll see where the various priority 15 cutoffs are at. Some of them involve a fairly significant 16 range of years, other priority groups involve a relatively 17 small range of years. 18 MR. HERRICK: And in your analysis, and I'll just 19 pick the one you have up there, 1925 for June, is the 20 cutoff -- do you know if the cutoff point -- you're 21 highlighting here the cutoff points, do they include people 22 who are senior to the Bureau, like the Bureau's export 23 permit? 24 MR. RENNING: I'd have to look at that chart, but I 25 believe that priority group three is junior to the Bureau's CAPITOL REPORTERS (916) 923-5447 10060 1 export rights. 2 MR. HERRICK: And, again, I'm just tying to figure 3 this out: Is four, do you know is four -- what point do 4 we reach? 5 MR. RENNING: I can't remember. I believe it's 6 either four or five. 7 MR. HERRICK: Okay. 8 MR. RENNING: You'd have to check it with the Draft 9 EIR. 10 MR. HERRICK: What I'm trying to understand is: Does 11 your analysis show that under the San Joaquin River 12 Agreement with some backstop, that some senior water right 13 holders will still have to kick in something? 14 MR. RENNING: Under certain circumstances they might. 15 MR. HERRICK: Okay. And, again, this gets into the 16 legal field and I just want to get your understanding on a 17 legal conclusion. What would be the basis for requiring a 18 senior water right holder to provide water if the San 19 Joaquin River Agreement is in place and the Bureau is 20 backstopping it? 21 MR. RENNING: I'm sorry? 22 MR. HERRICK: I think you said that at some point 23 here senior right holders are included in the priorities; 24 is that correct? 25 MR. RENNING: Yes, priority eight. CAPITOL REPORTERS (916) 923-5447 10061 1 MR. HERRICK: Okay. Now, I'm trying to find out why 2 the Bureau would suggest that senior water right holders 3 might have to kick in some water if the San Joaquin River 4 Agreement with the Bureau's backstopping was in place. 5 MR. RENNING: We're not intending -- to the extent 6 that they would have to curtail diversions under 7 Alternative 3, that means that if they diverted water they 8 would be diverting water that we were releasing from 9 storage to meet the Delta standard. And that is a 10 circumstance that we believe that such water right holders 11 should be curtailed from diverting, because they're taking 12 water away from the project. 13 MR. HERRICK: Okay. And I apologize because I'm 14 having trouble understanding this, so bear with me as I try 15 to phrase the questions a little better. 16 In your analysis you're comparing the San Joaquin 17 River Agreement with and without a backstop to Alternative 18 3, correct? 19 MR. RENNING: Yes. 20 MR. HERRICK: And the final chart shows the effects 21 of the San Joaquin River Agreement with the backstop; is 22 that correct? 23 MR. RENNING: Yes. 24 MR. HERRICK: And then you can compare that with 25 Alternative 3 itself? CAPITOL REPORTERS (916) 923-5447 10062 1 MR. RENNING: Yes. 2 MR. HERRICK: Okay. Is your chart that deals with 3 the San Joaquin River Agreement with the backstop telling 4 us that at some times you reach a cutoff point where other 5 people are supplying water to meet the standards? 6 MR. RENNING: Yes, just as they would under 7 Alternative 3. 8 MR. HERRICK: Okay. And so some of those people who 9 might have to supply water under certain circumstances 10 you're acknowledging may be water right holders who are 11 senior to the Bureau's export project; is that correct? 12 MR. RENNING: Yes, they could be. 13 MR. HERRICK: If the San Joaquin River Agreement is 14 to meet the San Joaquin River portion of the 1995 Water 15 Quality Control Plan with your backstop, why does a senior 16 water right holder to the Bureau have to supply water? 17 MR. RENNING: Like I said before, they would be -- 18 they would be, quote, "supplying water or curtailing their 19 diversions," because if they otherwise diverted they would 20 be releasing water -- pardon me, they would be diverting 21 water that the Bureau and the Department of Water Resources 22 were releasing from storage to meet the Delta standards. 23 And the assumption in Alternative 3 is that such right 24 holders do not have a right to divert that water. 25 MR. HERRICK: So the implementation of the San CAPITOL REPORTERS (916) 923-5447 10063 1 Joaquin River Agreement still places a burden on water 2 right holders senior to the Bureau? 3 MR. BRANDT: Objection. Vague as to which watershed 4 we're talking about. I think that's what the confusion is 5 here. Is it Sacramento versus San Joaquin? 6 C.O. STUBCHAER: Yeah, please, ask the question over. 7 MR. HERRICK: Sure. Does the San Joaquin -- does 8 adoption of the San Joaquin River Agreement then place the 9 burden on water right holders in the San Joaquin River 10 watershed to also meet Delta outflow? 11 MR. RENNING: No. 12 MR. HERRICK: All right. So the group you're 13 referring to is on the Sacramento River; is that correct? 14 MR. RENNING: Yes. 15 MR. HERRICK: Okay. Do any of the -- has the Bureau 16 done an investigation as to whether or not any of those 17 senior water right holders -- let me start over, I lost my 18 verb. 19 Has the Bureau done any analysis to determine 20 whether or not any of those senior water right holders on 21 the San Joaquin River system may or are entitled to area of 22 origin or watershed protection priority? 23 MR. RENNING: If I were to answer your question it 24 would -- it would require me to make some assumptions 25 regarding the area of origin statutes and I don't believe CAPITOL REPORTERS (916) 923-5447 10064 1 that I'm in a position to make such an interpretation 2 that's relevant to this hearing. 3 MR. HERRICK: I appreciate that. Do you know whether 4 or not the Bureau has a position on that issue, 5 understanding that it's -- you know, you're not 6 responsible for that? 7 MR. RENNING: Yes, we do have a position. 8 MR. HERRICK: Excuse me, while I'm looking for one 9 portion here. 10 Mr. Chairman, I'm almost done but I'm trying to 11 find some stuff. This might be a nice time to take the 12 break. My continued cross will not be long after the lunch 13 break. 14 C.O. STUBCHAER: All right. We'll take the lunch 15 break now and return at 1:00 p.m. 16 (Luncheon recess.) 17 ---oOo--- 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 10065 1 TUESDAY, FEBRUARY 16, 1999, 1:03 P.M. 2 SACRAMENTO, CALIFORNIA 3 ---oOo--- 4 C.O. STUBCHAER: Resume the hearing and the 5 cross-examination of Mr. Renning by Mr. Herrick. 6 MR. HERRICK: Thank you, Mr. Chairman, Board Members. 7 I just have a few more questions. 8 Mr. Renning, with regards to your testimony on 9 potential effects on third parties, I have a question 10 regarding the language of the San Joaquin River Agreement. 11 It says under Section 12.1 that the SJRGA, and I'm sort of 12 paraphrasing here, will not have any obligation under the 13 1995 Water Quality Control Plan to mitigate the impacts on 14 water quality resulting solely from any reduction of flows 15 in the San Joaquin River or its tributaries. 16 Does part of the Bureau's backstopping include any 17 potential mitigation necessary for diminished flows? 18 MR. RENNING: I'm simply not -- I simply don't know 19 enough about that part of the agreement to give you any 20 testimony on it. 21 MR. HERRICK: That's fine. And I'm not trying to 22 test your knowledge of the agreement, but do you have any 23 understanding with regard to the backstop obligations 24 whether or not those include mitigation of any decrease in 25 flows that cause impacts to water quality? CAPITOL REPORTERS (916) 923-5447 10066 1 MR. RENNING: Well, to the extent that they can meet 2 the standard through these other means that we've talked 3 about, yes, we will attempt to do that. 4 MR. HERRICK: Okay. When we were -- now, the basis 5 for the backstop, the starting point for the backstop is 6 the Interim Operation Plan on New Melones; is that correct? 7 MR. RENNING: Yes. 8 MR. HERRICK: And I don't mean to be repetitive if it 9 seems that way, but does the backstop add an additional 10 burden to New Melones above and beyond the Interim 11 Operation Plan? 12 MR. RENNING: Conceivably it could, but I think that 13 the -- you know, to say it in these terms, the Interim 14 Operation Plan is probably how the New Melones will be 15 operated pretty much irrespective of whether the agreement 16 is in place or not. 17 MR. HERRICK: Okay. Has the Bureau done any analysis 18 to determine whether or not water acquisitions pursuant to 19 the backstopping will exacerbate that number of 40 percent 20 of violations in 40 percent of year types that we've talked 21 about? 22 MR. RENNING: 40 percent of -- 23 C.O. STUBCHAER: 40 percent year types or year? 24 MR. HERRICK: 40 percent of the years examined had 25 water quality violations, that's correct. Thank you. CAPITOL REPORTERS (916) 923-5447 10067 1 MR. BRANDT: Just for the record, we actually have 2 another witness, Peggy Manza is going to be up right after 3 Mr. Renning to discuss that 40 percent and clarify what 4 this constant reference is to -- and clarify -- I mean 5 it's not exactly as it has been represented. So I think it 6 would be more appropriate to have that question asked of 7 Ms. Manza. 8 MR. HERRICK: That's fine. 9 And just a final line of questions, Mr. Renning, 10 would it be correct to say that the meeting of the 1995 11 Water Quality Control Plan pursuant to the San Joaquin 12 River Agreement is to transfer the decision on meeting it 13 to the Bureau based on their what's reasonable or not 14 criteria? 15 MR. RENNING: I don't think I would place it in those 16 terms. I think that the Bureau's, being part of the San 17 Joaquin Agreement, states that we will do particular things 18 and those things are spelled out. And I think that the 19 effects of those things are spelled out. I don't think 20 that we are going to exercise any independent judgment as 21 to whether we or -- collectively we will meet or will not 22 meet the standards. 23 MR. HERRICK: Well, didn't we earlier discuss what 24 the Bureau might or might not do? And aren't those things, 25 that same sort of judgment call in the future? And let me CAPITOL REPORTERS (916) 923-5447 10068 1 just do a hypothetical: 2 We have a year when we don't have enough to meet 3 the standard and there is water but it's at a price that is 4 unacceptable, the Bureau would decide whether or not that 5 is reasonable, wouldn't that be true? 6 MR. RENNING: Hypothetically, that's how we might 7 approach it, yes. 8 MR. HERRICK: And if we are in one of the years when 9 water quality objective for agricultural use is not going 10 to be met, again, it's the Bureau's decision based on its 11 definition of reasonable whether it will do other actions 12 or some actions to cure that; is that correct? 13 MR. RENNING: Well, I suppose to a certain degree 14 that's true. But that judgment -- or how we would 15 exercise that judgment is already built into the New 16 Melones Interim Operation Agreement and to the San Joaquin 17 River Agreement. And I think that that spells out how we 18 more or less intend to operate in those particular years. 19 MR. HERRICK: But it doesn't spell out what you will 20 do in the instances where you've pursued and finalized 21 water acquisitions for fisheries and that exacerbates 22 violations -- or creates violations for water quality, 23 does it? 24 MR. RENNING: It may not. 25 MR. HERRICK: Has the Bureau done any analysis to CAPITOL REPORTERS (916) 923-5447 10069 1 determine whether or not or what percentage its contributed 2 to causing the problems that led to the water quality plan 3 being implemented, or being adopted? 4 MR. RENNING: Well, I think we're getting into an 5 extremely large subject here that I don't think that was 6 the topic of my testimony. 7 MR. HERRICK: Okay. 8 MR. BRANDT: Good. 9 MR. HERRICK: That's fine. I'm not trying to -- 10 that's a perfectly legitimate answer. 11 MR. RENNING: There's certainly many different 12 reasons and the Bureau is certainly part of what some of 13 the problems are in the San Joaquin River. 14 MR. HERRICK: Finally, with regard to your analysis 15 of Alternative 3 to the San Joaquin River Agreement with 16 the backstop, is it then -- should we then conclude -- 17 well, let me back up. 18 That analysis examined whether or not parties may 19 have to forego diversions in order to meet Delta flow 20 requirements; is that correct? 21 MR. RENNING: Yes. 22 MR. HERRICK: The supplemental water was to meet 23 Delta requirements, correct? 24 MR. RENNING: Yes. 25 MR. HERRICK: Were those more than -- more than CAPITOL REPORTERS (916) 923-5447 10070 1 outflow requirements? Did they include other requirements 2 than outflow? 3 MR. RENNING: No. 4 MR. HERRICK: Okay. Has the Bureau then concluded 5 that in order to provide Delta outflow it's not reasonable 6 to decrease export pumping? 7 MR. RENNING: The -- it is an option, but the -- in 8 these studies -- I'd have to go back and look at 9 Alternative 3, but I believe that in the years in which -- 10 you know, particularly critically dry years that the 11 outflow requirements are such that export reductions would 12 not meet all of the outflow requirements and that the 13 option of meeting the outflow requirements through our 14 storage releases is one that meets more of the various uses 15 that are attempted to be met in the various sites. 16 MR. HERRICK: I have no further questions. Thank you 17 very much. 18 C.O. STUBCHAER: Thank you. 19 Mr. Nomellini. 20 ---oOo--- 21 CROSS-EXAMINATION OF THE DEPARTMENT OF THE INTERIOR 22 BY THE CENTRAL DELTA PARTIES 23 BY DANTE JOHN NOMELLINI 24 MR. NOMELLINI: Mr. Chairman, Members of the Board, 25 Dante John Nomellini for the Central Delta Parties. CAPITOL REPORTERS (916) 923-5447 10071 1 Mr. Renning, what is your present position with 2 the Bureau of Reclamation? 3 MR. RENNING: I'm a hydraulic engineer in the Central 4 Valley Operations Office. 5 MR. NOMELLINI: Do you have any special expertise 6 with regard to water right matters in which the Bureau is 7 involved? 8 MR. RENNING: I've worked in water rights and 9 hydrology for the past 25 years, about. 10 C.O. STUBCHAER: I didn't hear. 11 MR. RENNING: I'm sorry. I've worked in the field of 12 water rights and hydrology for the past 25 years. 13 MR. NOMELLINI: And did you participate in the 14 negotiation of the San Joaquin River Agreement? 15 MR. RENNING: No, I did not. 16 MR. NOMELLINI: Now, in developing your testimony, 17 which is an attempt to provide more details on the nature 18 of Reclamation's backstop, did you make any attempt to 19 ascertain what the intent was of the Bureau participants in 20 the negotiation of the San Joaquin River Agreement? 21 MR. RENNING: I don't quite understand your question. 22 MR. NOMELLINI: Could you tell us how you arrived at 23 your understanding of what the meaning is of the language 24 in the San Joaquin River Agreement pertaining to the 25 Reclamation's backstop? CAPITOL REPORTERS (916) 923-5447 10072 1 MR. RENNING: I didn't inquire of anyone of what that 2 meaning was. I think the statement has a plain meaning. 3 MR. NOMELLINI: Now, with regard to the statement in 4 your testimony that you quote in the second paragraph, 5 talks about meeting the 1995 Water Quality Control Plan 6 objectives that can reasonably be met through flow 7 measures. Do you see that in your testimony? 8 MR. RENNING: Yes. 9 MR. NOMELLINI: Now, does that include the narrative 10 standards -- or the narrative standard for the doubling of 11 salmon? 12 MR. RENNING: I don't think that anyone knows what 13 the narrative standard for the doubling of salmon actually 14 means in terms of flow quantities. I think that's kind of 15 an unknown quantity at this point in time. That remains to 16 be seen in the future what that will turn out to be. 17 MR. NOMELLINI: All right. If there is a flow 18 requirement associated with meeting the 1995 Water Quality 19 Control Plan objective for the doubling of chinook salmon, 20 is such a requirement, to the extent that it would come 21 from the San Joaquin River, covered by the Reclamation 22 backstop in the San Joaquin River Agreement? 23 MR. RENNING: I don't think -- 24 MR. NOMELLINI: You're supposed to ignore your 25 attorney shaking his head now. CAPITOL REPORTERS (916) 923-5447 10073 1 MR. RENNING: I don't think that it is. I think that 2 if the standards change that there's going to be a 3 reexamination of each party's commitment. 4 MR. NOMELLINI: All right. So, then, your 5 understanding based on a plain reading of this agreement 6 and no other instruction from anybody in the Bureau, or 7 other information is that a flow objective related to the 8 narrative standard would be outside the scope of this 9 commitment for the Reclamation's backstop in the San 10 Joaquin River Agreement? 11 MR. RENNING: Well, what I'm saying is that if at 12 some point in the future there is some flow standard that's 13 developed associated with the doubling goal and that is, 14 you know, a significant requirement upon one of the parties 15 to the San Joaquin Agreement that could affect that party's 16 position on whether to continue with the San Joaquin 17 Agreement. 18 MR. NOMELLINI: All right. With regard to instream 19 flow requirements, let's take for example on the Tuolumne, 20 if such a requirement was imposed and that the release of 21 water by those on the Tuolumne resulted in a lessening of 22 the burden for outflow that the Bureau would otherwise 23 have, would there be a responsibility of the Bureau under 24 your interpretation of the San Joaquin River Agreement to 25 make up for that water? CAPITOL REPORTERS (916) 923-5447 10074 1 MR. RENNING: I don't quite understand your 2 hypothetical here. The way your hypothetical sounds it 3 sounds as though there is going to be a requirement imposed 4 upon one of the San Joaquin River Agreement parties to make 5 releases over and above what they would be making now; is 6 that correct? 7 MR. NOMELLINI: Correct. 8 MR. RENNING: If that happened that would, I suppose, 9 in one sense that would be an aid to the Bureau. That 10 would be water coming out of the San Joaquin side that we 11 would not have to be making up from the CVP. 12 MR. NOMELLINI: Okay. 13 MR. RENNING: But if that happened, that might change 14 the other parties' position in the San Joaquin Agreement. 15 MR. NOMELLINI: It may give rise as a basis for a 16 request to terminate the agreement, is that what you're 17 testifying to? 18 MR. RENNING: That could possibly happen. 19 MR. NOMELLINI: All right. Now in terms of the 20 language that says "can reasonably be met through flow 21 measures," is the reasonably be met, as you understand it, 22 limited to purchases -- to obtaining water through 23 purchases from willing sellers? 24 MR. RENNING: Or through the operation of the New 25 Melones Unit. CAPITOL REPORTERS (916) 923-5447 10075 1 MR. NOMELLINI: All right. And then it would not be 2 reasonable to reduce deliveries to the export contractors 3 in order to put water into the San Joaquin River to meet 4 the pulse flow requirement, is that your testimony? 5 MR. RENNING: By this I presume you're talking about 6 the recirculation alternative? 7 MR. NOMELLINI: No. I mean that could be one, but in 8 any circumstance is it your testimony that it would be 9 unreasonable to reduce deliveries to the CVP contractors 10 who receive water exported from the Delta in order to use 11 that water to meet the pulse flow requirement in the San 12 Joaquin River? 13 MR. BRANDT: Objection. Incomplete hypothetical. 14 C.O. STUBCHAER: Could you make it complete? 15 C.O. BROWN: I understand. 16 MR. NOMELLINI: Give me a hint. 17 MR. RENNING: I simply don't see how reducing our 18 exports is going to increase flow at Vernalis. If you can 19 explain that to me maybe I could answer your question. 20 MR. NOMELLINI: Okay. I wasn't suggesting you reduce 21 exports, I was suggesting you reduce deliveries to the 22 contractors who receive the exported water. And instead 23 release that water into the San Joaquin River to meet the 24 pulse flow requirement. 25 MR. RENNING: That's the recirculation. CAPITOL REPORTERS (916) 923-5447 10076 1 MR. NOMELLINI: Okay. Let's redefine that as 2 recirculation. I didn't say you could pump it again and 3 then recirculate it, but let's assume that's recirculating. 4 Is that unreasonable under your reading of the measures 5 that could be taken for the Bureau to backstop the 6 responsibilities under the San Joaquin River Agreement? 7 MR. RENNING: We have certain problems with the 8 recirculation concept in that we don't think that its 9 feasibility has been shown yet. It is something that 10 warrants further study, but at this point in time the 11 Bureau does not believe that recirculation is reasonable. 12 MR. NOMELLINI: Okay. And that is in any form, is 13 that your testimony? 14 MR. RENNING: Well, it's -- it's a concept. There 15 have been some studies done. There are some problems with 16 those studies. And at least at this point in time we don't 17 think that the concept has been shown to be feasible. 18 MR. NOMELLINI: Okay. Let's take the word 19 "recirculation" out of the equation. Let's talk about 20 making a release from San Luis into the Mendota pool for 21 the purposes of running water down the San Joaquin River to 22 meet the pulse flow requirement. 23 Is that unreasonable in terms of a measure that 24 could be taken to meet the backstop obligation of the San 25 Joaquin River Agreement? CAPITOL REPORTERS (916) 923-5447 10077 1 MR. RENNING: Well, since you've presented a very 2 specific proposal there are some specific problems, I 3 think, with that. We're talking about making releases on a 4 point very high up on the San Joaquin River. There are 5 portions of that part of the San Joaquin River that exhibit 6 losses, and whether such releases might make it to Vernalis 7 is an important question that needs to be addressed. 8 MR. NOMELLINI: Have you concluded that such an 9 example would be unreasonable? 10 MR. RENNING: Well, I'm not going to give you an 11 unequivocal "yes" or "no" on that, but I think that 12 Reclamation's position is that concept of recirculation, or 13 of making releases from San Luis Reservoir, has problems 14 with it that have to be resolved, first have to be studied 15 and then resolved before such a proposal could go forth. 16 MR. NOMELLINI: Okay. It's true, is it not, that you 17 testified just a while ago that the recirculation was 18 determined by you to be unreasonable; is that correct? 19 MR. RENNING: Well, it's a concept that we have 20 identified particular problems with. Those problems have 21 not been answered yet. And that at this point in time we 22 certainly cannot say that it is reasonable. So I guess you 23 would have to conclude at this point in time that we're 24 saying that it is unreasonable. 25 MR. NOMELLINI: All right. Let's take the same CAPITOL REPORTERS (916) 923-5447 10078 1 testimony or same aspect of the question of releases from 2 San Luis to the Mendota pool, you indicated in your 3 testimony, did you not, that it has not yet been studied? 4 MR. RENNING: That's right. 5 MR. NOMELLINI: All right. Now, with regard to that 6 proposal, San Luis to the Mendota pool, is it your 7 testimony that you would have to conclude, then, that it is 8 unreasonable? 9 MR. RENNING: Well, you're -- the terms that you're 10 using here are more or less giving me only two options. 11 And I'm a little bit uncomfortable with making such 12 absolute conclusions at this point in time without having 13 all of these studies done. 14 I think we have some sense of what the problems 15 are and that some of these problems, at least at this point 16 in time, are things that might prove to be insurmountable. 17 And until we go forward with further studies, I'm simply 18 giving you an opinion of some of these things right now. 19 And I certainly don't think that they're necessarily what 20 would be found after all the studies are completed. 21 MR. NOMELLINI: All right. So you would admit, would 22 you not, that a plain reading of the San Joaquin River 23 Agreement does not in any way preclude the backstop of the 24 Bureau being met with water from recirculation? 25 MR. RENNING: That is certainly something that could CAPITOL REPORTERS (916) 923-5447 10079 1 possibly happen. 2 MR. NOMELLINI: All right. And in the same vein, 3 there's nothing from a plain reading of the San Joaquin 4 River Agreement that would preclude the Bureau's backstop 5 being met with releases of water from San Luis to the 6 Mendota pool; is that correct? 7 MR. RENNING: That is certainly something that could 8 possibly be. 9 MR. NOMELLINI: Now, is the Bureau -- has the Bureau 10 developed a plan for meeting the backstop requirements of 11 the San Joaquin River Agreement in the event water 12 purchases from willing sellers could not be made? 13 MR. RENNING: No, we haven't addressed that. 14 MR. NOMELLINI: Okay. 15 MR. RENNING: If I could elaborate, I think that that 16 is an issue that would come up in a specific year that the 17 San Joaquin River Agreement is in place and that 18 circumstances under which water might not be available 19 would probably also be circumstances under which there are 20 adverse water conditions. And that how we address -- how 21 we collectively address water operations in a such year is 22 something everyone is going to have to sit down and do at 23 that time. 24 MR. NOMELLINI: Is it your testimony, then, that to 25 your knowledge the Bureau has not evaluated the possibility CAPITOL REPORTERS (916) 923-5447 10080 1 of the San Joaquin River Agreement not being executed? 2 MR. RENNING: We -- we have -- we have stated that 3 we intend to operate the New Melones Project according to 4 the New Melones Interim Operation Plan. If the San Joaquin 5 Agreement did not come into effect, that would -- first of 6 all, if it did not come into effect it would mean that the 7 Board would have to take some actions as to how they intend 8 to implement the Water Quality Control Plan for the San 9 Joaquin River. 10 And how we and all the rest of the people in the 11 San Joaquin River react is going to be dependent upon what 12 the Board decides. 13 MR. NOMELLINI: Let's assume that it's Alternative 2. 14 MR. RENNING: If it were Alternative 2 then -- here 15 I'm talking in hypothetical, that we would -- we would 16 operate New Melones according to the Interim Operation 17 Agreement. And associated with that there would be a 18 certain degree of noncompliance with the standards and that 19 would be what would happen. 20 MR. NOMELLINI: Is there any reason why under that 21 hypothetical the Bureau would not consider releasing water 22 from San Luis that would otherwise be delivered to its 23 water contractors and using that water to meet the legal 24 requirements of the 1995 Water Quality Control Plan? 25 MR. RENNING: You're right, that could be another CAPITOL REPORTERS (916) 923-5447 10081 1 option, but we would have to investigate that and determine 2 whether or not that would be feasible. 3 MR. NOMELLINI: Feasible -- when you use the term 4 "feasible," in what sense are you using the term? What 5 factors would you consider to determine whether or not that 6 particular alternative would be feasible under the 7 hypothetical of Alternative 2 and the need for water beyond 8 New Melones to meet the 1995 Water Quality Control Plan 9 objective? 10 MR. RENNING: Well, you'd have to determine whether 11 this plan actually accomplished the purposes for which it 12 was being done, i.e., to what degree is it going to help 13 with the standard? Whether it's going to have any other 14 impacts, perhaps to the environment, perhaps to the 15 fishery, whether they need to be considered and whether in 16 an economic sense the plan is something that is feasible. 17 MR. NOMELLINI: All right. It is clear, is it not, 18 that New Melones alone does not provide the Bureau with the 19 capability of meeting both the pulse flow requirements for 20 fish and the Vernalis water quality requirements? 21 MR. RENNING: New Melones alone cannot meet all of 22 the requirements, fully meet all of the requirements that 23 that project has. 24 MR. NOMELLINI: All right. Now, with regard to New 25 Melones, you testified about the Interim Operation Plan. CAPITOL REPORTERS (916) 923-5447 10082 1 Is it true that the Interim Operation Plan places a first 2 priority for meeting fishery requirements over the Water 3 Quality Control Plan water quality requirements? 4 MR. RENNING: I -- 5 MR. CAMPBELL: Excuse me. 6 C.O. STUBCHAER: Mr. Campbell. 7 MR. CAMPBELL: Mr. Stubchaer, I'd like to object to 8 this line of questioning on the grounds that it's outside 9 the scope of this witness' rebuttal testimony. 10 C.O. STUBCHAER: Could you point out where in the 11 rebuttal testimony there's reference to the fisheries? 12 MR. NOMELLINI: Third paragraph talks about New 13 Melones is Reclamation's closest supply to Vernalis and its 14 permits are the only ones to impose Vernalis water quality 15 requirements. We've talked about the pulse flow -- this 16 testimony talks about the pulse flow requirements. 17 And what I wanted to do is focus in on this 18 language, since New Melones has the one -- the imposition 19 of the water quality requirement, whether they're treating 20 fishery versus water quality responsibilities with any 21 priority. I think it's within the framework; I can't find 22 the language that talks about the fishery but it's in here, 23 too. 24 C.O. STUBCHAER: And then on the next page it talks 25 about -- CAPITOL REPORTERS (916) 923-5447 10083 1 MR. NOMELLINI: Fourth paragraph. 2 C.O. STUBCHAER: -- the fishery purposes and 3 biologist and "I have no expertise on it," that's quoting 4 from -- 5 MR. NOMELLINI: Well, again, with regard to the 6 expertise it's whether or not he knows, you know. But over 7 on the second page in the fourth paragraph it talks about, 8 (Reading): 9 "Reclamation will seek to provide the pulse 10 flows required by the 1995 Water Quality Control 11 Plan and the 1995 Biological Opinion as best we 12 can for New Melones and water acquisitions." 13 Those two set the framework. 14 C.O. STUBCHAER: Why don't you try your question 15 again. 16 MR. NOMELLINI: Again? 17 C.O. STUBCHAER: I've forgotten what it was and then 18 we'll rule. 19 MR. NOMELLINI: All right. In the Bureau's use of 20 New Melones to meet the Vernalis water quality requirements 21 and to meet the pulse flows required by the 1995 Water 22 Quality Control Plan and the 1995 Biological Opinion, are 23 any priorities established? 24 C.O. STUBCHAER: You may answer. 25 MR. RENNING: In the New Melones Interim Operation CAPITOL REPORTERS (916) 923-5447 10084 1 Plan, which was testified to by Lowell Ploss here in an 2 earlier phase of this hearing, we presented a diagram that 3 showed how the various priorities of New Melones would be 4 ett. I don't have that in front of me. And that diagram 5 and Mr. Ploss's testimony speak to that. 6 MR. NOMELLINI: Okay. Are you saying you don't have 7 any understanding of what the priority is? 8 MR. RENNING: I don't have that in my head now. If I 9 looked at that diagram, or if anyone looked at that diagram 10 the priorities would be clear. 11 MR. NOMELLINI: If I told you that the first priority 12 was meeting the fish requirement, would you agree that that 13 was the case? 14 MR. RENNING: Actually, I think the first priority 15 was meeting the water quality standard. 16 MR. NOMELLINI: Okay. And if I told you the second 17 priority was meeting the fish requirements, would you agree 18 with that? 19 MR. RENNING: I think that's right. 20 C.O. STUBCHAER: Mr. Campbell. 21 MR. CAMPBELL: I object on another ground that the 22 witness has suggested, and that's that this line of 23 questioning is cumulative and I believe it's ground that's 24 been covered in I believe several days of examination of 25 Lowell Ploss, and I don't think we need to go over it CAPITOL REPORTERS (916) 923-5447 10085 1 again. 2 C.O. STUBCHAER: Mr. Brandt. 3 MR. BRANDT: Three different phases. 4 C.O. STUBCHAER: Do you join the objection? 5 MR. BRANDT: I would join the objection. 6 C.O. STUBCHAER: I'll sustain the objection. 7 MR. NOMELLINI: Will I get the last word? 8 C.O. STUBCHAER: No, not this time. 9 MR. NOMELLINI: No? 10 C.O. STUBCHAER: I got the last word. 11 MR. NOMELLINI: Note my objection to the objection 12 and to the ruling. 13 All right. On the last paragraph on Page 1 of 14 your testimony you refer to, 15 (Reading): 16 "Reclamation has instituted a water acquisition 17 program to augment our supplies for water 18 quality and fishery purposes on the Stanislaus, 19 the San Joaquin and in the Delta." 20 Do you see that? 21 MR. RENNING: Yes. 22 MR. NOMELLINI: Has the Bureau made any attempt to 23 purchase water from the Westlands' Water District that 24 would otherwise be made available by the settlement 25 agreement which retires certain portions of the lands down CAPITOL REPORTERS (916) 923-5447 10086 1 in area one? 2 MR. RENNING: Not to my knowledge. 3 MR. NOMELLINI: Is there any reason that you can give 4 us as to why that block of water would not be potentially 5 available for acquisition? 6 MR. RENNING: Well, I think the easy question -- or 7 easy answer to that question is that Westlands intends to 8 use that water in other places in the district. 9 MR. NOMELLINI: Do you know that for a fact? 10 MR. RENNING: I -- 11 MR. BRANDT: Objection. Beyond the scope of his 12 backstop (sic). What Westlands does is not really part of 13 this backstop. 14 C.O. STUBCHAER: I find that hard to relate to the 15 rebuttal testimony, Mr. Nomellini. 16 Mr. Herrick. 17 MR. NOMELLINI: Well, the -- 18 MR. HERRICK: I would just like to briefly address 19 the issue on that and the prior objection. This was a 20 phased hearing and it was difficult sometimes to decide 21 what was appropriate and what was rebuttal and what was 22 not. But we heard from the -- counsel for the Bureau, 23 counsel for San Joaquin River Agreement and other attorneys 24 for that group, I'll say, over and over again in all of the 25 phases, objections to questions along these same lines. CAPITOL REPORTERS (916) 923-5447 10087 1 And the answer was, "We're going to go over all of 2 this in Phase II-A." Once, again, they're going to have a 3 chance to do this. So that affected the line of 4 questioning. And then we come to the Phase II-A and those 5 parties don't put on a case in chief. 6 And so we as the people opposing that agreement 7 are faced with a situation where we're trying to 8 cross-examine witnesses on a very select group of topics 9 that they have -- excuse the expression -- manipulated to 10 be before the Board rather than putting on a case in chief 11 in which everybody would have preparation and wider scope. 12 So I think in our cross-examination of witnesses 13 from the Bureau and San Joaquin River Agreement we should 14 take heed of the fact that they failed to put on cases in 15 chief and where that has left the cross-examiners. Thank 16 you. 17 C.O. STUBCHAER: Mr. Herrick, I understand your 18 point. The question I have is where it's been pointed out 19 that prior testimony has answered a certain question on the 20 priority of use of water, and that's clear on the record, 21 why should it be then necessary to reexamine that on the 22 rebuttal testimony? 23 This is for Mr. Herrick, if you have a response. 24 MR. HERRICK: I don't. I understand your point and 25 it's hard to draw the line here, but I think in allowing or CAPITOL REPORTERS (916) 923-5447 10088 1 deciding upon cross-examination the Board should take note 2 of the fact of how we've ended up here with only rebuttal 3 testimony. 4 C.O. STUBCHAER: And I think that's a good point. 5 Mr. Nomellini. 6 MR. NOMELLINI: Yeah, I'd like to add to the argument 7 on that point. I think that allowing us to cross-examine 8 individual witnesses, even though the questions may have 9 been asked in other segments of the hearing, provides us 10 with the opportunity to impeach the other testimony and 11 impeach the testimony of this witness. 12 That's why I asked that my objection be noted on 13 the record on your previous ruling. I think it's unduly 14 restrictive in denying us the opportunity to develop at 15 different stages the inconsistencies of the testimony and 16 also to probe the testimony of this particular witness. 17 On the particular question I had with regard to 18 water acquisition, I don't know that we have to go that 19 far. And I would call your attention to the top of Page 2 20 and this witness' testimony that says, 21 (Reading): 22 "This water acquisition program has proven to us 23 that acquisitions like the ones proposed as 24 part of the San Joaquin River Agreement can make 25 a significant contribution of Reclamation's CAPITOL REPORTERS (916) 923-5447 10089 1 success in providing fishery flows and complying 2 with water quality standards imposed by State 3 Water Quality Control Board." 4 And I would submit that questioning with regards 5 to the availability of water from New Melones is perfectly 6 relevant within the scope of this testimony. And either 7 this witness knows something about it or he doesn't, and I 8 should be allowed to proceed with that. 9 C.O. STUBCHAER: With regard to your previous 10 question, where the witness has said that this was 11 testified to by Mr. Ploss previously, he doesn't personally 12 have the knowledge or he doesn't remember, that basically 13 sounds to me kind of like an asked and answer and why are 14 we pursuing this? How are you going to impeach someone who 15 says they don't remember, when it's already in the record? 16 So if there's a line to be drawn -- 17 MR. NOMELLINI: Yeah, I would agree with that. If 18 the witness doesn't remember or doesn't have anything to 19 add, that's fine. But the objection wasn't based on that, 20 I agree with you. I think as it turns out there's probably 21 not a lot worth pursuing there, but the objection was based 22 on it being asked previously and replowing the same ground 23 with the same witness. And it's on that point that I do 24 not agree with the Chair's ruling. 25 C.O. STUBCHAER: And that's your privilege. CAPITOL REPORTERS (916) 923-5447 10090 1 MR. NOMELLINI: I understand that, sir. 2 C.O. STUBCHAER: Hold on just a second. What 3 question do we now have pending? I've lost track. 4 MR. NOMELLINI: I was asking the question about 5 whether or not the Bureau has considered purchasing the 6 block of water from Westlands Water District that would be 7 available in the event the settlement agreement resulted in 8 retirement of lands in area one. 9 MR. BRANDT: And we answered that. 10 C.O. STUBCHAER: All right. 11 MR. BRANDT: So that was not the problem. 12 MR. NOMELLINI: Then the question came behind that. 13 MR. BRANDT: No. The objection was to the next 14 question which was: Do you know what Westlands wants to 15 do? That's where I have the problem. 16 MR. NOMELLINI: Do you know what the question is? 17 C.O. STUBCHAER: Yeah -- 18 MR. NOMELLINI: Let's claw that ground a little bit 19 more to the extent I remember. He added to the answer that 20 Westlands needed the water, was going to use the water 21 within its own boundaries. And then I followed it up with 22 -- 23 MR. RENNING: I think -- 24 MR. NOMELLINI: -- do you know what it was? So it 25 was in response to the follow-up of the answer that I asked CAPITOL REPORTERS (916) 923-5447 10091 1 the next question. 2 C.O. STUBCHAER: And I think that it is going a bit 3 far afield, but do you know the answer to the question? 4 MR. RENNING: Well, I think my answer was I think -- 5 I presume that Westlands is going to use that within other 6 areas within the district. I certainly don't know that for 7 a fact, but that's what I've been led to believe by lots of 8 discussions by lots of people about their water supply. 9 C.O. STUBCHAER: Mr. Emrick. 10 MR. EMRICK: Mr. Chairman, Mr. Herrick objected to 11 the comment of Mr. Brandt's objection on the ground that 12 the scope of rebuttal should not be limited to the rebuttal 13 testimony itself. 14 In light of your response, I was wondering if you 15 might clarify the basis of your ruling, whether it was on 16 the basis that Mr. Nomellini's question was within the 17 scope, or whether or not you are, in fact, changing the 18 Chair's earlier ruling on the scope of the cross being 19 related to rebuttal. 20 C.O. STUBCHAER: I don't think I was changing the 21 earlier ruling. 22 MR. EMRICK: Thank you. I just thought it would be 23 helpful for all of us to prepare our case. 24 C.O. STUBCHAER: The question is, of course, where 25 the line is drawn. And when we look in the written CAPITOL REPORTERS (916) 923-5447 10092 1 testimony and you can find some reference to the 2 acquisition program, the water acquisition program and what 3 level of detail do we go to, and that's where we're trying 4 to draw the line, I think. 5 MR. EMRICK: Thank you. It just helps from that 6 standpoint. 7 C.O. STUBCHAER: Okay. 8 MR. NOMELLINI: All right. Thank you. Back to the 9 top of Page 2 of your testimony and this particular 10 language that we've been working with that reads, 11 (Reading): 12 "This water acquisition program has proven to us 13 that acquisitions like the ones proposed as part 14 of the San Joaquin River Agreement can make a 15 significant contribution to Reclamation's 16 success in providing fishery flows and complying 17 with water quality standards imposed by the 18 State Water Quality Control Board, State Board." 19 See that language? 20 MR. RENNING: Yes, I do. There is a mistake in my 21 language; that, of course, should be the State Water 22 Resources Control Board. 23 MR. NOMELLINI: Okay. With that correction, are 24 there water purchases like the ones proposed as part of the 25 San Joaquin River Agreement that you're aware of that are CAPITOL REPORTERS (916) 923-5447 10093 1 outside of the Stanislaus, Tuolumne or Merced River basins? 2 MR. RENNING: There have been some relatively minor 3 purchases from the Exchange Contractors. 4 MR. NOMELLINI: All right. Are there any others that 5 you know of that are being considered or evaluated? 6 MR. RENNING: Not any others that I'm aware of. 7 MR. NOMELLINI: All right. Let's focus in on the San 8 Joaquin River Exchange Contractors; that purchase from the 9 Exchange Contractors is part of the San Joaquin River 10 Agreement; is it not? 11 MR. RENNING: No -- well, here what we're referring 12 to are purchases that have been made in the last several 13 years. And we're referring to the fact that these programs 14 of purchases have accomplished what they've set out to do. 15 And that based upon that we would expect that such 16 purchases in the future would also accomplish what they're 17 set out to do in the context of the San Joaquin River 18 Agreement. 19 MR. NOMELLINI: Okay. Again, referring to the top of 20 Page 2 and referring to historical purchases from the San 21 Joaquin River Exchange Contractors, how did those purchases 22 provide the fishery flows? 23 MR. RENNING: I can't speak to exactly what they were 24 all intended to do, but they were -- some were undertaken 25 to provide for particular flows on the Merced River, some CAPITOL REPORTERS (916) 923-5447 10094 1 to provide particular flows on the Stanislaus River and 2 some to provide particular flows in the San Joaquin River 3 itself. And I don't have the details on those. 4 MR. NOMELLINI: Okay. And it's your testimony that 5 you don't know whether or not the purchase from San Joaquin 6 River Exchange Contractors was for the purpose of providing 7 flow in the San Joaquin River itself, is that your 8 testimony? 9 MR. RENNING: No, it was to provide flow -- 10 MR. NOMELLINI: Okay. 11 MR. RENNING: -- in the San Joaquin River. 12 MR. NOMELLINI: And physically how did that provide 13 the water into the river? 14 MR. RENNING: I can't remember the details, but I 15 know there were -- there was several 1,000 acre-feet of 16 water purchased and -- some sort of acquisition. And if 17 memory serves me right, I think it was -- I believe that 18 the water acquired was released down the Newman Wasteway. 19 MR. NOMELLINI: All right. It is true, is it not, 20 that the San Joaquin River Agreement provides for purchase 21 of water from the San Joaquin River Exchange Contractors? 22 MR. RENNING: Yes, I believe it does. 23 MR. NOMELLINI: All right. Do you know if that water 24 is for the purpose of providing a pulse flow? 25 MR. RENNING: I don't know if that purpose is CAPITOL REPORTERS (916) 923-5447 10095 1 specified in the agreement or not. 2 MR. NOMELLINI: All right. Do you know how 3 physically the water is to be provided? 4 MR. RENNING: I don't think that there's any details 5 about that in the agreement. 6 MR. NOMELLINI: Do you know whether or not the water 7 to be provided is drainage water? 8 MR. RENNING: I don't know. 9 MR. NOMELLINI: All right. On Page 2, the second 10 paragraph you say, 11 (Reading): 12 "Reclamation is committed to meeting, at least, 13 the target flows set out in the San Joaquin 14 River Agreement." 15 You see that language? 16 MR. RENNING: Yes. 17 MR. NOMELLINI: Do you know whether or not 18 Reclamation is committed to meeting the 1995 Water Quality 19 Control Plan? 20 MR. RENNING: We're committed to do that to the 21 extent that we can. There may be circumstances that we 22 can't meet it. 23 MR. NOMELLINI: Okay. And what circumstances would 24 you envision that would preclude the Bureau from meeting 25 the 1995 Water Quality Control Plan objectives? CAPITOL REPORTERS (916) 923-5447 10096 1 MR. RENNING: That the water year conditions would be 2 such that we would not be able to commit that quantity of 3 water from New Melones and that there would not be willing 4 sellers for those quantities of water from other places on 5 the San Joaquin. 6 MR. NOMELLINI: All right. And would those be 7 circumstances under which there would be no deliveries to 8 CVP contractors served by the export pumps from the Delta? 9 MR. RENNING: No. We would -- we will always make 10 some level of deliveries to the contractors on the west 11 side. 12 MR. NOMELLINI: And when you say, "always make some 13 deliveries to contractors on the west side," which 14 contractors are you referring to, in the "always make 15 deliveries to some contractors on the west side"? 16 MR. RENNING: Well, what I'm saying is I cannot 17 envision any circumstances under which export deliveries 18 would be zero. It would have to be a terribly, terribly 19 dry year for such circumstances. And we make deliveries to 20 a number of different types of contractors. We have water 21 service contractors, water right exchange contractors and 22 M&I contractors. And they would all fall under the various 23 deficiencies provisions that we have. 24 MR. NOMELLINI: So if the Bureau had the choice of 25 meeting the 1995 Water Quality Control Plan objectives or CAPITOL REPORTERS (916) 923-5447 10097 1 reducing exports to zero, is it your testimony that the 2 Bureau would not meet the 1995 Water Quality Control Plan 3 objectives? 4 MR. RENNING: I don't agree with the basis of your 5 question. I don't think that reducing our export to zero 6 would in any way help to achieve meeting the standards at 7 Vernalis. 8 MR. NOMELLINI: Okay. Let's make it a hypothetical. 9 Hypothetically, the Bureau is faced with meeting the 1995 10 Water Quality Control Plan objectives or reducing the 11 exports to zero, is it your testimony that the Bureau would 12 not meet the 1995 Water Quality Control Plan objectives? 13 MR. BRANDT: Objection. Incomplete hypothetical. 14 C.O. STUBCHAER: Yeah, I don't understand how that 15 hypothetical could physically happen. 16 MR. NOMELLINI: Well, that is a problem. 17 Let's assume the law says that the Bureau could 18 only export surplus water. And let's assume that the law 19 says that all the water users in the area of origins have 20 first priority over exports. So there's not enough water 21 to go to -- for both purposes, the Water Quality Control 22 Plan objectives, and let's talk about a fish flow in the 23 San Joaquin River versus the exports. 24 And let's assume in this hypothetical that it is 25 possible for the fish flow to be reduced by eliminating the CAPITOL REPORTERS (916) 923-5447 10098 1 adverse impact of export pumping. 2 C.O. STUBCHAER: Mr. Nomellini, in your hypothetical 3 are you talking about all export pumping or only the export 4 pumping of San Joaquin River contribution to the pumps? 5 MR. NOMELLINI: I'm talking about all export pumping 6 on the part of the Bureau. 7 C.O. STUBCHAER: Even though some water may be coming 8 from the Sacramento? 9 MR. NOMELLINI: Correct. 10 C.O. STUBCHAER: And has no influence on Vernalis? 11 MR. NOMELLINI: Right. 12 C.O. STUBCHAER: It has no influence on Vernalis? 13 MR. NOMELLINI: That's correct. And my first 14 question related to the 1995 Water Quality Control Plan 15 objectives in general. And it was the principle that I 16 wanted to establish, if I could, of the Bureau's decision 17 making between deliveries to exports and meeting the 1995 18 Water Quality Control Plan. 19 C.O. STUBCHAER: If Mr. Renning understands the 20 question, he may answer. I still think it could be viewed 21 as an incomplete hypothetical. 22 MR. RENNING: Well, I would simply have to say I just 23 don't agree with the conditions that you've set out in your 24 hypothetical. I don't -- I don't think that those 25 conditions could physically exist and it's -- it's -- you CAPITOL REPORTERS (916) 923-5447 10099 1 know, highly, highly speculative to work off of that basis. 2 I'm not sure that adds anything to it. 3 MR. NOMELLINI: It doesn't, but I'll leave it alone. 4 Paragraph 2 on Page 2 there's a statement; the last 5 sentence reads, 6 (Reading): 7 "Instead, Reclamation relies on the expertise of 8 its sister agency, the Fish and Wildlife 9 Service, which has already provided testimony on 10 the San Joaquin River Agreement's equivalent 11 implementation of the pulse flow objectives." 12 You see that in your testimony? 13 MR. RENNING: Yes. 14 MR. NOMELLINI: What part do the biological opinions 15 of the National Marine Fishery Service play in 16 Reclamation's reliance and determination pertaining to the 17 San Joaquin River Agreement? 18 MR. RENNING: I don't believe that any of the 19 biological opinions that have been developed by the 20 National Marine Fishery Service relate to any of our 21 operational requirements on the San Joaquin River. Some of 22 them do relate to our operations of the projects' export 23 operations, but not to operations on the San Joaquin River. 24 MR. NOMELLINI: Do you know whether or not a formal 25 consultation has been instituted by the Bureau of CAPITOL REPORTERS (916) 923-5447 10100 1 Reclamation with the National Marine Fishery Service with 2 regard to steelhead? 3 MR. RENNING: I believe that -- I believe that one 4 has, yes, but -- don't hold me to it. I'm not sure. 5 MR. NOMELLINI: Do you know whether or not the Bureau 6 of Reclamation has instituted a formal consultation with 7 the National Marine Fishery Service with regard to Delta 8 smelt? 9 MR. RENNING: No. The National Marine Fishery 10 Service has nothing to do with the Delta smelt. 11 MR. NOMELLINI: Okay. You're right. Good answer. 12 All right. With regard to Paragraph 3, the first 13 sentence, it says, 14 (Reading): 15 "Compliance with the pulse flow objective 16 depends on the contributions of the San Joaquin 17 River Group's members." 18 Do you see that in your testimony? 19 MR. RENNING: Yes. 20 MR. NOMELLINI: Is it your testimony that without the 21 San Joaquin River Group's members' contributions that it is 22 physically impossible for the Bureau to comply with the 23 pulse flow objective in the 1995 Water Quality Control 24 Plan? 25 MR. RENNING: In the absence of the San Joaquin CAPITOL REPORTERS (916) 923-5447 10101 1 Agreement, as I've stated before, New Melones would be 2 operated according to the Interim Operation Plan. That 3 operation coupled with the operations of the other parties 4 on the San Joaquin will meet the various requirements a 5 certain percentage of the time. With the San Joaquin 6 Agreement these parties will help -- will modify their 7 operations to help meet the fishery objectives more often. 8 MR. NOMELLINI: All right. Going back to my 9 question, and I want to emphasize your testimony with 10 regard to the physical impossibility of the CVP to meet the 11 pulse flow objective without contributions of the San 12 Joaquin River Group's members. 13 And I want to ask you if it's your testimony that 14 it is physically impossible for the CVP to meet that pulse 15 flow objective without the contribution from the San 16 Joaquin River Group's members? 17 MR. RENNING: Under the circumstances that we have 18 said that we will operate the CVP on the San Joaquin River, 19 i.e., New Melones Reservoir, there will be a certain 20 percentage of time that the pulse flows will be met. 21 With the San Joaquin Agreement it will be a higher 22 percentage of time that they will be met. 23 If you're talking about absolute 100 percent, I 24 don't think that we're going to meet the objective in 25 either case absolutely 100 percent. CAPITOL REPORTERS (916) 923-5447 10102 1 MR. NOMELLINI: Are you testifying that it is 2 physically impossible for the CVP to meet the pulse flow 3 objective without the contributions from the San Joaquin 4 River Agreement, or are you saying that it's a policy 5 determination? 6 MR. RENNING: Well, we're kind of getting into the 7 realm of hypothetical again. But, conceivably, there could 8 be an operation plan developed that would meet one and only 9 one of the various objectives that are out there for the 10 San Joaquin River and it could meet it 100 percent of the 11 time, but that might mean that the rest of the objectives 12 are not met at all. 13 MR. NOMELLINI: Is your testimony based in any way on 14 an objective that there will be no net loss to the 15 contractors receiving water exported from the Delta? 16 MR. RENNING: No, I don't think that that -- I don't 17 think that that objective came into play in the development 18 of the San Joaquin Agreement. That's an objective of the 19 '94 Accord. 20 MR. NOMELLINI: Is it your testimony that it does not 21 apply when implementing the San Joaquin River Agreement? 22 MR. RENNING: I don't think that it's -- I don't 23 think that it's relevant to the San Joaquin Agreement. 24 It's not something that was part of the agreement. 25 MR. NOMELLINI: Is it your testimony that the level CAPITOL REPORTERS (916) 923-5447 10103 1 of exports is not relevant to the San Joaquin River 2 Agreement? 3 MR. RENNING: There are certain standards that 4 address export levels and they are a part of the studies 5 that are associated with examining the San Joaquin 6 Agreement, but to my knowledge the San Joaquin Agreement 7 does not address exports. I'm not that completely familiar 8 with the San Joaquin Agreement, but I think that's the 9 situation. 10 MR. NOMELLINI: Now, in the fourth paragraph on Page 11 2 in your testimony there's language that says, 12 (Reading): 13 "Then Reclamation will seek to provide the pulse 14 flows required by the 1995 Water Quality Control 15 Plan and the 1995 Biological Opinion as best we 16 can from New Melones and water acquisitions." 17 You see that? 18 MR. RENNING: Yes. 19 MR. NOMELLINI: What does the 1995 Biological Opinion 20 address in terms of species? 21 MR. RENNING: The reference there is to the Delta 22 smelt opinion, I believe. 23 MR. NOMELLINI: And the "as best we can" language, 24 you see that? 25 MR. RENNING: Yes. CAPITOL REPORTERS (916) 923-5447 10104 1 MR. NOMELLINI: In your plain reading of that 2 language what other words could you use to describe that? 3 What level of effort is required "as best we can"? 4 MR. RENNING: Well, we will examine the hydrologic 5 circumstances that exist at that point in time and operate 6 accordingly. 7 MR. NOMELLINI: Does that mean that the pulse flow 8 and the 1995 Biological Opinion are going to be treated as 9 a first priority objective? 10 MR. RENNING: I can't say that they would be a first 11 priority. I think we would be looking at all of the 12 factors, all of the requirements that we have to meet in 13 the projects' operation. 14 MR. NOMELLINI: All right. And when you say "as best 15 we can," you're talking about the Bureau is going to make 16 that determination? 17 MR. RENNING: Well, we don't have the ability to 18 dictate the operations of anyone else. 19 MR. NOMELLINI: Okay. But with regard to the CVP are 20 you going to dictate, you the Bureau, going to dictate the 21 operation? 22 MR. RENNING: Well, we develop the operations for the 23 CVP. To a certain degree those operations have to be 24 renewed by the Fish and Wildlife Service in the context of 25 the ESA and by National Marine Fishery Service and also in CAPITOL REPORTERS (916) 923-5447 10105 1 context of the ESA. 2 MR. NOMELLINI: All right. "As best we can from New 3 Melones and water acquisitions," is it your testimony that 4 if you can't do it with New Melones and you can't do it 5 with water acquisitions, that you're not going to do it, 6 you the Bureau? 7 MR. RENNING: Under those circumstances we might 8 conclude that we cannot meet the standard. 9 MR. NOMELLINI: I didn't say cannot. I'm asking you 10 whether or not you would not? 11 MR. RENNING: Under those circumstances we would 12 conclude that in our operations we would not meet the 13 standards that year. 14 MR. NOMELLINI: Later on in your testimony, I think 15 on Page 3, in the middle of the page you talk about, 16 (Reading): 17 "CVP and the SWP would make up any San Joaquin 18 River reductions from our own supplies 19 consistent with the Coordinated Operations 20 Agreement." 21 And then you testified that you made a comparison 22 to Alternative 3. And is it your testimony that with 23 regard to Alternative 3 that the backstop would be provided 24 to make sure that the Sacramento River users aren't any 25 worse off than they would have been under an Alternative 3? CAPITOL REPORTERS (916) 923-5447 10106 1 MR. RENNING: That's one way of saying it, yes. 2 MR. NOMELLINI: Does this mean that the Bureau is 3 willing to let the needs within the Sacramento basin go 4 unmet? 5 MR. RENNING: I don't understand your question. 6 MR. NOMELLINI: All right. Let's assume Alternative 7 3 takes water away from users in the Sacramento River. 8 Okay. You would agree that that's an assumption for 9 Alternative 3, would you not? 10 MR. RENNING: Well, it's something that could happen. 11 MR. NOMELLINI: You have your overhead? 12 MR. RENNING: Yes. 13 MR. NOMELLINI: Would you turn it on, please. All 14 right. Focusing on -- and I don't remember the exhibit 15 number, I'm sorry, is it 103D? 16 MR. BRANDT: B as in Boy. 17 MR. NOMELLINI: Oh, B. All right. And looking at 18 June 25th -- 19 MR. BRANDT: June 1925. 20 MR. NOMELLINI: Excuse me, June 1925 and Line 8A, 21 "Project Obligation," do you see that? 22 MR. RENNING: Yes. 23 MR. NOMELLINI: Now, it was your testimony, was it 24 not, that that reflects the degree to which Sacramento 25 Valley water right holders would have to yield water; is CAPITOL REPORTERS (916) 923-5447 10107 1 that correct? 2 MR. RENNING: Yes. 3 MR. NOMELLINI: So in the first column there's 81,000 4 acre-feet; is that correct? 5 MR. RENNING: I'm not sure if you're interpreting 6 that right. 7 MR. NOMELLINI: All right. Could you explain that to 8 me, 8A? 9 MR. RENNING: Well, the computation shows that if you 10 curtailed the right holders in group one that that would 11 generate 272,000 acre-feet. 12 MR. NOMELLINI: Okay. 13 MR. RENNING: And there would still be a remaining 14 project obligation of 81,000 acre-feet. 15 MR. NOMELLINI: All right. So Line 7A, water 16 generated would be the quantity of water taken away from 17 Sacramento basin water users. Is that correct? 18 MR. RENNING: Yes, but I'd like to, also, explain 19 that that could also be water that such users would pay for 20 under a contract to the projects. 21 MR. NOMELLINI: Okay. Now, let's focus in on that. 22 If the water users paid the Bureau for the Line 7A quantity 23 of water, pursuant to a contract, where would the Bureau 24 get the water to meet its backstop commitment? 25 MR. RENNING: Well, the -- we have a responsibility CAPITOL REPORTERS (916) 923-5447 10108 1 in the sense that we have control of the system to meet 2 whatever the Delta requirements are. And the backstopping 3 of the agreement simply means that to the extent that 4 somebody else continues to divert when they shouldn't 5 divert that simply increases whatever the releases we have 6 to make to meet that Delta requirement. We meet the Delta 7 requirement. 8 MR. NOMELLINI: Okay. So the contract -- let's take 9 a water user in the Sacramento Valley. That contract would 10 be just a typical water service contract, is that what 11 you're contemplating? 12 MR. RENNING: No. This would be a water rights 13 settlement contract. We have quite a number of contractors 14 that are water right settlement contractors already 15 existing in the Sacramento River. 16 MR. NOMELLINI: Okay. And would this contract be 17 with water right holders who have senior water rights 18 already? 19 MR. RENNING: Some of our water right settlement 20 contractors have rights that are senior to the Bureau and 21 some have rights that are junior to the Bureau. 22 MR. NOMELLINI: All right. This 272,000 acre-feet 23 then, is it your testimony that that would be water only 24 from water users that have water right settlement contracts 25 with the Bureau? CAPITOL REPORTERS (916) 923-5447 10109 1 MR. RENNING: Not necessarily. I think if you look 2 through the group one in the Draft EIR you'll find that 3 some of those parties are people that have settlement 4 contracts and some are not. 5 MR. NOMELLINI: Okay. So if a water user in the 6 Sacramento Valley gives up water because the Board picks 7 Alternative 3, then that water user can say to the Bureau, 8 "I want to keep my water and I'll pay you for it." Is that 9 what you're testifying to? 10 MR. RENNING: Yes, that could happen. 11 MR. NOMELLINI: And if all the water users in Line 7A 12 elected to keep the water and pay the Bureau, then you're 13 saying the Bureau would not have any difficulty finding the 14 water to meet the obligation, because they have the 15 obligation anyway, is that what you're saying? 16 MR. RENNING: Well, in the operation of the project, 17 if we know that we have these various people under 18 contract, we know that that's a demand that we have to meet 19 and that when we plan our operations in a particular year 20 that becomes part of the equation of how we determine what 21 other supplies we would meet and that could to some degree 22 affect how much water we export. 23 MR. NOMELLINI: So the shortage could come out of 24 exports from the Delta, is that what your testimony is? 25 MR. RENNING: It's not necessarily going to come out CAPITOL REPORTERS (916) 923-5447 10110 1 of exports from the Delta, but it's simply a factor that 2 has to be considered in how we determine our obligations. 3 MR. NOMELLINI: Okay. Has the Bureau in evaluating 4 its ability to meet the backstop requirements of the San 5 Joaquin River Agreement considered Watershed Protection Act 6 filings by water users along the tributaries to the San 7 Joaquin River? 8 MR. RENNING: I don't -- we haven't made such 9 considerations and I'm not sure how we would account for 10 that in this analysis. 11 MR. NOMELLINI: Okay. Are you aware that the 12 Stockton East Water District has made such a filing on the 13 Stanislaus River? 14 MR. RENNING: I'm -- I am aware that Stockton East 15 has filed an application with the State Board, yes. 16 MR. NOMELLINI: Okay. But you don't know the detail 17 of it, is that your testimony? 18 MR. RENNING: Well, I'm not sure what relevance that 19 has to this hearing. 20 MR. NOMELLINI: That's what happens when you get the 21 lawyer to answer the question instead of the witness, but 22 anyway -- 23 C.O. STUBCHAER: Well, this time he didn't. I'll 24 agree this time. 25 MR. BRANDT: All I did was go, "It's up to you." CAPITOL REPORTERS (916) 923-5447 10111 1 C.O. STUBCHAER: The previous time he shook his head 2 and you were right. He was coaching. 3 How much more do you have, Mr. Nomellini? 4 MR. NOMELLINI: I'm through. 5 C.O. STUBCHAER: You're through, what timing. We'll 6 take our afternoon break now. 7 (Recess taken from 2:27 p.m. to 2:40 p.m.) 8 C.O. STUBCHAER: Please, come back to order. 9 Mr. Hasencamp, ready to cross-examine? 10 MR. BRANDT: Could I just also ask -- Mr. Renning 11 has a couple of corrections that he thinks he just wants to 12 make clear on the record. 13 C.O. STUBCHAER: Sure. 14 MR. BRANDT: I just wanted to make it clear on the 15 record. 16 MR. RENNING: The first one was reference to the 17 "State Water Quality Board," that, of course, should be the 18 State Water Resources Control Board on Page 2. On Page 4 19 the equation one, that should be a plus before the IO 20 instead of N value. And then on Page 4 of Exhibit 103D the 21 first part of that reference is August 1942, and the second 22 and third part reference July, those references should also 23 be August. 24 C.O. STUBCHAER: Okay. 25 MR. RENNING: And then on the column near CAPITOL REPORTERS (916) 923-5447 10112 1 explanation, the explanation for Line 7A should have Line 2 5A taken out. 3 C.O. STUBCHAER: So the "plus 5A" should be deleted? 4 MR. RENNING: Yes. 5 C.O. STUBCHAER: The word "plus"? 6 MR. RENNING: Yes. 7 C.O. STUBCHAER: All right. Those corrections are 8 noted for the record. 9 Mr. Hasencamp, good afternoon. 10 ---oOo--- 11 CROSS-EXAMINATION OF THE DEPARTMENT OF THE INTERIOR 12 BY CONTRA COSTA WATER DISTRICT 13 BY BILL HASENCAMP 14 MR. HASENCAMP: Good afternoon, Mr. Chairman and 15 Members of the Board, Bill Hasencamp, Contra Costa Water 16 District. 17 Do I need to spell my name for you, or do you have 18 that? 19 THE COURT REPORTER: No. 20 MR. HASENCAMP: Good afternoon, Mr. Renning. You've 21 done a good job showing how complicated that backstop issue 22 can be. On Page 3 of your testimony on the fourth 23 paragraph the first sentence says, 24 (Reading): 25 "A fuller explanation of our investigation may CAPITOL REPORTERS (916) 923-5447 10113 1 help the Board understand how we will ensure the 2 other Sacramento water right holders do not 3 suffer." 4 Do you see that statement? 5 MR. RENNING: Yes. 6 MR. HASENCAMP: Are you also offering the same 7 protection to other water right holders on the Lower San 8 Joaquin River below Vernalis or in the Delta? 9 MR. RENNING: To the extent that Alternative 3 with 10 the San Joaquin River Agreement would have otherwise 11 imposed some responsibility on them, that would also 12 happen, yes. 13 MR. HASENCAMP: So it's not limited, then, just to 14 the Sacramento River, the analysis that you've done? 15 MR. RENNING: No. 16 MR. HASENCAMP: Okay. Thank you. On Page 6 of the 17 first set of tables, I'm not sure what the exhibit number 18 is, but the heading is "IO-VAMP." 19 MR. BRANDT: 103A. 20 MR. HASENCAMP: 103A, okay. Do you have that in 21 front of you? 22 MR. RENNING: Yes. 23 MR. HASENCAMP: Now, is it my understanding that this 24 is the amount of backstop that would be required from the 25 two projects compared with Alternative 3 versus the San CAPITOL REPORTERS (916) 923-5447 10114 1 Joaquin River Agreement? 2 MR. RENNING: Yes. Page 6 of Exhibit 103A summarizes 3 on an annual basis what the backstop would be. 4 MR. HASENCAMP: So this is the amount of water that 5 the state and federal projects would have to release to 6 Delta outflow in addition to their obligations under 7 Alternative 3 in the Draft EIR; is that correct? 8 MR. RENNING: Yes. 9 MR. HASENCAMP: And the long-term average seems to be 10 98,000 acre-feet? 11 MR. RENNING: Yes. 12 MR. HASENCAMP: And it ranges from minus 36,000 to 13 279,000 acre-feet; is that correct? 14 MR. RENNING: Yes. 15 MR. HASENCAMP: And I'm looking at the drought that 16 we had recently. I believe the drought was from 1987 17 through 1992, is that your recollection? 18 MR. RENNING: Yes. 19 MR. HASENCAMP: And looking at those numbers it 20 appears that the average backstop during the drought is 21 about 150,000 acre-feet; is that true? 22 MR. RENNING: That looks about right, yes. 23 MR. HASENCAMP: And under the Coordinated Operations 24 Agreement, is it true that about 75 percent of the 25 obligation would fall to the Bureau of Reclamation? CAPITOL REPORTERS (916) 923-5447 10115 1 MR. RENNING: Yes. Under the existing Coordinated 2 Operating Agreement the in-basin obligations under these 3 circumstances would be split 75/25. 4 MR. HASENCAMP: So that would be roughly 112,000 5 acre-feet for the Bureau of Reclamation of the 150? 6 MR. RENNING: That sounds about right. 7 MR. HASENCAMP: Has the Bureau determined how it 8 would provide that water? 9 MR. RENNING: Well, the water would be -- would be 10 -- it would come from the project reservoirs under the 11 operational scenarios that would exist at the time that 12 this would be in effect. 13 MR. HASENCAMP: Well, there would likely be impacts 14 to Bureau contractors of having to backstop the San Joaquin 15 River Agreement? 16 MR. RENNING: Yes, there could be. 17 MR. HASENCAMP: And of the 112,000 acre-feet, was the 18 backstop in critical years, it could potentially be a 19 significant reduction in deliveries to the CVP during 20 critical years? 21 MR. RENNING: Yes, I suppose that it could be. 22 MR. HASENCAMP: But you haven't determined which 23 contractors that would affect, the reduction in deliveries 24 would affect? 25 MR. RENNING: No. We haven't made a specific CAPITOL REPORTERS (916) 923-5447 10116 1 determination, but I would expect that that would be any 2 shortages that would be caused by backstopping the San 3 Joaquin River Agreement would be allocated according to the 4 deficiency criteria that's in place for all of the CVP 5 contractors. 6 MR. HASENCAMP: So there could be shortages on both 7 ag and urban contractors? 8 MR. RENNING: Yes, there could be. 9 MR. HASENCAMP: And there could be on both north of 10 the Delta and south of the Delta contractors? 11 MR. RENNING: Yes, there could be. 12 MR. HASENCAMP: Now, did some CVP contractors sign a 13 statement of support for the San Joaquin River Agreement? 14 MR. RENNING: Yes, there were statements of support 15 by some San Joaquin -- or some San Joaquin Valley 16 contractors, yes. 17 MR. HASENCAMP: And other contractors didn't sign any 18 statements of support? 19 MR. RENNING: I don't think that all of the 20 contractors signed the statement of support, yes, that's 21 right, yes. 22 MR. HASENCAMP: Well, could any reduction in CVP 23 supply that results from the San Joaquin River Agreement be 24 limited to those contractors that signed statements of 25 support for the San Joaquin River Agreement? CAPITOL REPORTERS (916) 923-5447 10117 1 MR. RENNING: Well, I presume that that could be 2 done, but we have not made any determination that it would 3 be done any other way than through the existing deficiency 4 criteria. 5 MR. HASENCAMP: So a contractor that did not support 6 the agreement or was in effect a nonsettling party could be 7 impacted by the agreement? 8 MR. RENNING: That could potentially happen, yes. 9 MR. HASENCAMP: And you could do an analysis similar 10 to what you've done here to protect the Term 91 water right 11 holders to Bureau contractors that wish to either support 12 or decline to support the agreement? 13 MR. RENNING: That could be done, but let me simply 14 say that what Reclamation ultimately does here will be a 15 policy determination by our management. And at this point 16 in time I'm not sure exactly what that might be. 17 MR. HASENCAMP: And will the contractors have input 18 to that decision? 19 MR. RENNING: They certainly do. They have input to 20 almost all the decisions that we make. 21 MR. HASENCAMP: I have no further questions. 22 C.O. STUBCHAER: Thank you, Mr. Hasencamp. 23 Mr. Lilly. 24 MR. LILLY: Good afternoon, Mr. Stubchaer and Members 25 of the Board. CAPITOL REPORTERS (916) 923-5447 10118 1 C.O. STUBCHAER: Good afternoon. 2 ---oOo--- 3 CROSS-EXAMINATION OF THE DEPARTMENT OF THE INTERIOR 4 BY SACRAMENTO VALLEY WATER DISTRICTS 5 BY ALAN LILLY 6 MR. LILLY: My name is Alan Lilly of Barkiewicz, 7 Kronick and Shanahan in Sacramento and I'm representing 8 several different water districts in the Sacramento Valley. 9 Good afternoon, Mr. Renning. I have some 10 follow-up questions. First of all, just following up on 11 the question Mr. Hasencamp -- or line of questioning from 12 Mr. Hasencamp, is it fair to say that the impacts to the 13 yield of the Central Valley Project would be greater under 14 Flow Alternative 2 than under Flow Alternative 3? 15 MR. RENNING: Yes, I believe that they would. 16 MR. LILLY: Because basically under Flow Alternative 17 2 there's no other water right holders besides the state 18 and federal projects who would have any Bay-Delta 19 responsibility; is that correct? 20 MR. RENNING: That's right. 21 MR. LILLY: So while it may be true that the San 22 Joaquin River Agreement has some impact on CVP contractors' 23 supplies compared to Flow Alternative 3, the impact to the 24 San Joaquin River Agreement on those contractors' supplies 25 would not be as great as the impacts would be under Flow CAPITOL REPORTERS (916) 923-5447 10119 1 Alternative 2; is that correct? 2 MR. RENNING: I believe that's right. I think if you 3 look at the Draft EIR those impacts are spelled out in the 4 Draft EIR. I can't remember, but the numbers are right in 5 there. 6 MR. LILLY: Okay. Now, just going forward to Page 3 7 of your testimony and specifically the third paragraph, I 8 just want to read the second sentence, because I think you 9 may have misspoken in your direct examination. The second 10 sentence of that paragraph says, 11 (Reading): 12 "Because Sacramento River water has little or no 13 effect on Vernalis flows or water quality, we 14 have not identified any effect on Sacramento 15 River system water right holders from our 16 Vernalis backstop." 17 That sentence is accurate as written here; is that 18 correct? 19 MR. RENNING: Yes, that's right. 20 MR. LILLY: Okay. I'm not sure, I don't have the 21 transcript, I think you may have inadvertently said effect 22 on San Joaquin system when you gave your testimony. And I 23 want to confirm this as written here is correct, though? 24 MR. RENNING: Yes. 25 MR. LILLY: Now, just following up on the concept in CAPITOL REPORTERS (916) 923-5447 10120 1 that paragraph, then, I just want to make sure I've got the 2 conclusion correct. Is it fair to say that implementation 3 of the San Joaquin River Agreement, therefore, would not 4 result in the need for Sacramento River water users to 5 reduce their diversions, or otherwise provide any more 6 water to meet the San Joaquin basin share of the 1995 Water 7 Quality Control Plan? 8 MR. RENNING: That's right, if the procedure involved 9 in modified Term 91 is modified as I have spelled out in my 10 testimony. 11 MR. LILLY: Okay. In other words, the purpose of 12 backstop is to avoid any impact on the Sac Valley water 13 users from the implementation of the San Joaquin River 14 Agreement? 15 MR. RENNING: No. The purpose of backstop is not 16 that. The purpose -- well, I'm sorry. The modification 17 to the Term 91 computation and the backstop are essentially 18 the same thing. 19 MR. LILLY: Okay. 20 MR. RENNING: It's just a different way of saying it. 21 MR. LILLY: Maybe a better way of saying it is: As a 22 result of the implementation of the backstop is that there 23 would be no net effect of the San Joaquin River Agreement 24 on the Sac Valley water users? 25 MR. RENNING: Yes. That's right. CAPITOL REPORTERS (916) 923-5447 10121 1 MR. LILLY: All right. I think my clarification -- 2 I appreciate your clarification, that made it clearer to 3 me, too. 4 Just following up on that, then, I just want to 5 make sure I understand, on the very last page of your 6 testimony as I understand it the point of this table here 7 is to show that with the San Joaquin River Agreement and 8 the backstop the priority groups that would be curtailed in 9 any given month for Bay-Delta obligations end up being the 10 same as they are in the full Alternative 3; is that 11 correct? 12 MR. RENNING: Yes, that's right. 13 MR. LILLY: Okay. Now, if you can go forward to your 14 Exhibit 103B and this is the page -- the second page which 15 is the overhead that's up on the projector right now. As I 16 understand it, if you go down to row 10C, which says "SJRA 17 Correction," you go across there to the column where -- 18 you go from left to right until you get to the last column 19 where the entry in row 12C is a positive number; is that 20 correct? 21 MR. RENNING: Yes, that's right. 22 MR. LILLY: And then the entry for that column in row 23 10C, which in this case is 211, that, in essence, is the 24 amount of the backstop that would be provided in that month 25 under this modeling scenario? CAPITOL REPORTERS (916) 923-5447 10122 1 MR. RENNING: Yes, that's right. 2 MR. LILLY: Okay. And then if you go back to Exhibit 3 103A, Page 6, if I now look at 1925 in June I see a 211. 4 Is that basically the same number -- is that also the 5 backstop number that's shown there? 6 MR. RENNING: Yes, that's right. That's what I meant 7 by the last paragraph of my testimony that shows that 8 Exhibit 103A and 103B can be compared and they come up with 9 the same answer. 10 MR. LILLY: Okay. Basically, the comparison you make 11 is between that row 10C in the proper column and then this 12 Page 6 of Exhibit 103A? 13 MR. RENNING: That's right. 14 MR. LILLY: Okay. I don't go through it for the 15 other examples, but I assume a similar process could be 16 done? 17 MR. RENNING: Yes. 18 MR. LILLY: Now, at the bottom of Page 6 of Exhibit 19 103A you show that there is an average of 98,000 acre-feet 20 per year; is that correct? 21 MR. RENNING: Yes. 22 MR. LILLY: So that, in essence, is the average 23 amount of the backstop that would be provided under this 24 modeling scenario; is that correct? 25 MR. RENNING: That's right. CAPITOL REPORTERS (916) 923-5447 10123 1 MR. LILLY: Is another way to say that same thing 2 that the -- on average for this modeling scenario the San 3 Joaquin Valley water right holders, besides the Bureau, 4 would have to provide 98,000 acre-feet per year less water 5 under the San Joaquin River Agreement than they would under 6 Flow Alternative 3? 7 MR. RENNING: Yes, that's right. 8 MR. LILLY: Now, I think you briefly testified either 9 this morning or earlier this afternoon about Flow 10 Alternative 5. And is it your understanding that under 11 Flow Alternative 5, in essence, rather than taking the 12 modified Term 91 approach there would be a certain minimum 13 flow requirement specified in each of the various different 14 tributaries in the Central Valley? 15 MR. RENNING: I can't remember testifying about 16 Alternative 5, but your characterization of Alternative 5 17 is right. 18 MR. LILLY: Okay. So I realize the details of how 19 the backstop would be applied would obviously have to be 20 different because you would no longer have the modified 21 Term 91 approach, but could the basic concept of a backstop 22 be applied if the San Joaquin River Agreement were approved 23 and then the Board were to adopt Flow Alternative 5 outside 24 of the San Joaquin Valley? 25 MR. RENNING: I'm not quite sure, because Flow CAPITOL REPORTERS (916) 923-5447 10124 1 Alternative 5 imposes particular responsibilities on each 2 one of the tributaries to the Delta. And if the San 3 Joaquin River Agreement were in place instead of Flow 4 Alternative 5 for the San Joaquin River, that would simply 5 mean that there was less water coming down the San Joaquin 6 than would otherwise be and that under certain 7 circumstances the Delta outflow requirements may not be 8 met. 9 And if the assumption is still that the projects, 10 collectively the CVP and the SWP, must still meet the 11 standards, then that would simply be a burden that is 12 imposed upon us. If somehow it were determined that burden 13 was going to be shared by other water right holders, then 14 there would have to be some sort of way of allocating that 15 to the other water right holders. 16 MR. LILLY: Okay. But what I'm wondering is to carry 17 out the backstop could you not calculate -- I think it 18 would be a similar process to what you've done here, could 19 you not calculate the amount of flow that would be required 20 in the Merced and the Tuolumne and the various San Joaquin 21 tributaries under Flow Alternative 5 and then compare that 22 with the amount of water that is yielded by the San Joaquin 23 River Agreement, basically the difference could become the 24 state and federal project backstop obligation? 25 MR. RENNING: Yes, that could be done. CAPITOL REPORTERS (916) 923-5447 10125 1 MR. LILLY: Okay. 2 MR. RENNING: But I think that the concept of 3 backstop doesn't necessarily come into play here, because 4 the -- I'm sorry, I'm getting confused. 5 Yes, we would be backstopping the agreement under 6 that circumstance. But also under that circumstance, i.e., 7 Alternative 5, the responsibility may not be imposed upon 8 anyone else. 9 MR. LILLY: And basically, I guess that would depend 10 on whether or not there was a Delta outflow obligation in 11 addition to the obligations on each of the different 12 tributaries? 13 MR. RENNING: That's right. 14 MR. LILLY: So then that's basically just a question 15 of how the Board would ultimately implement Flow 16 Alternative 5 under that circumstance? 17 MR. RENNING: Yes. 18 MR. LILLY: Thank you. I have no further questions. 19 C.O. STUBCHAER: Thank you, Mr. Lilly. 20 Mr. Jackson. Good afternoon. 21 // 22 // 23 // 24 // 25 // CAPITOL REPORTERS (916) 923-5447 10126 1 ---oOo--- 2 CROSS-EXAMINATION OF THE DEPARTMENT OF THE INTERIOR 3 BY THE REGIONAL COUNCIL OF RURAL COUNTIES 4 BY MICHAEL JACKSON 5 MR. JACKSON: Michael Jackson for the Regional 6 Council of Rural Counties. 7 Mr. Renning, Reclamation has assumed for the 8 purposes of your testimony that the Board will choose 9 Alternative 3 in their final decision in regard to the 10 Bay-Delta; is that correct? 11 MR. RENNING: No. No. We have -- we have assumed 12 Alternative 3 as the alternative to compare the San Joaquin 13 Agreement against. We are not necessarily presuming that 14 the Board is going to pick one or the other of the 15 alternatives. But Alternative 3, because of the 16 assumptions that are in it, is the logical one to which the 17 San Joaquin Agreement should be compared. 18 MR. JACKSON: Would the San Joaquin Agreement work if 19 Alternative 2 was chosen? 20 MR. RENNING: Sure. 21 MR. JACKSON: All right. And it would work if 22 Alternative 5 were chosen? 23 MR. RENNING: Yes, it would, but the -- if the Board 24 were to -- well, here we get into trying to guess what the 25 Board would do and what their legal assumptions would do, CAPITOL REPORTERS (916) 923-5447 10127 1 but it would -- I don't know. Well -- 2 MR. JACKSON: Well -- 3 MR. RENNING: I'm getting into speculation. 4 MR. JACKSON: Let me step back, then. Let's not 5 guess what the Board will do in the future. Which 6 alternative represents the existing legal and permit 7 situation for the Bay-Delta? 8 MR. RENNING: Alternative 2. 9 MR. JACKSON: All right. And from your knowledge 10 Alternative 2 has been the way it's been since the 11 beginning of the projects? 12 MR. RENNING: No. It's been that way since 1995. 13 MR. JACKSON: Excuse me, but didn't D-1485 -- 14 MR. RENNING: That's Alternative 1. 15 MR. JACKSON: That's Alternative 1. So Alternative 2 16 is then to take the same legal standard and apply it to the 17 new water quality permits? 18 MR. RENNING: Yes. 19 MR. JACKSON: That the Bureau and DWR are responsible 20 as they have been since the building of the projects? 21 MR. RENNING: Yes. 22 MR. JACKSON: Okay. And there's nothing about 23 Alternative 2 that would make it impossible to do the San 24 Joaquin River Agreement as far as you know? 25 MR. RENNING: No. CAPITOL REPORTERS (916) 923-5447 10128 1 MR. JACKSON: Okay. Now, so for the purposes of this 2 testimony you've assumed a change in the responsibility; is 3 that correct, that the responsibility now can be shared by 4 the Bureau and DWR with other parties? 5 MR. RENNING: That was the assumption that was made 6 in Alternative 3 by the State Board. 7 MR. JACKSON: And in picking Alternative 3 to compare 8 it to, you made the assumption that that was the, as you 9 put it, the appropriate alternative to consider with the 10 San Joaquin River Agreement? 11 MR. RENNING: Well, it was the appropriate 12 alternative to look at if you were making a determination 13 that the Bureau's backstop, the Bureau and the Department's 14 backstop of the San Joaquin Agreement was not going to 15 effect any other party. 16 If you made that comparison against Alternative 2 17 it wouldn't make any sense, because no other party has any 18 responsibility. 19 MR. JACKSON: Absolutely. Every other party is in 20 better shape with Alternative 2 except the Bureau and DWR, 21 right? 22 MR. BRANDT: Argumentative. 23 MR. JACKSON: Well, I mean -- 24 MR. RENNING: Well, that's one way of putting it, 25 yes. CAPITOL REPORTERS (916) 923-5447 10129 1 MR. JACKSON: Okay. Now, you've also made -- 2 MR. RENNING: I should say that to the extent that 3 other parties have responsibility, many of those parties 4 have existing contracts with the Bureau or with the 5 Department and that those contracts would be part of how 6 their responsibility was met. 7 MR. JACKSON: We'll get to those contracts. But it 8 is fair to say that other than people who contract with the 9 Bureau or DWR, everyone else would be better off in terms 10 of certainty in their water rights leaving it at 11 Alternative 2, the way it is today, correct? 12 MR. RENNING: I think that would happen only if the 13 State Board made an absolutely clear determination that the 14 rest of the parties in the exercise of their water rights 15 did not have any responsibility and could continue to 16 divert to the detriment of the two projects. 17 MR. JACKSON: Now, let's talk about that a little -- 18 well, I'll get back to that. That's a lot of fun and I 19 will get there. I may go back to where I was. 20 Calling your attention to the exhibit that's on 21 the screen which I believe is Interior 103 -- 22 C.O. STUBCHAER: B. 23 MR. JACKSON: G. 24 MR. RENNING: B. 25 C.O. STUBCHAER: B. CAPITOL REPORTERS (916) 923-5447 10130 1 MR. RENNING: B as in boy. 2 MR. JACKSON: B as in boy. Now, the first set of 3 columns, there are three sets of columns, one on top of the 4 other. The first set of columns assumes Alternative 3, 5 does it not? 6 MR. RENNING: That's right. 7 MR. JACKSON: On the Sacramento River and on the San 8 Joaquin River side? 9 MR. RENNING: That's right. 10 MR. JACKSON: Okay. Now, in Line 8A it says "Project 11 Obligation." So if we just did a straight Alternative 3, 12 does Line 8A reflect the obligation of the Bureau of 13 Reclamation and the Department of Water Resources? 14 MR. RENNING: The figure under -- well, or above 15 cutoff group three if you read across on Line 9A would 16 describe what our project obligation is, 45,000 acre-feet. 17 MR. JACKSON: All right. Now, what is the first 18 column where it says 81,000 acre-feet? 19 MR. RENNING: That is the project obligation if only 20 the water right diverters in priority group one were 21 curtailed. 22 MR. JACKSON: All right. Now, the Bureau is on each 23 of these priority lists, are they not? 24 MR. RENNING: I believe that we were on a number of 25 the priority groups. I can't remember exactly where we fit CAPITOL REPORTERS (916) 923-5447 10131 1 into it all. 2 MR. JACKSON: Would it refresh your recollection to 3 tell you that you've mostly got -- that in some of yours 4 New Melones is on cutoff group one and Friant has a 5 substantial part of its storage in cutoff group four where 6 you would find Shasta, Friant and others? 7 MR. RENNING: I would have to look at the listing. I 8 simply don't have that in my mind. 9 MR. JACKSON: All right. For purposes of the record 10 it would be found at Page 2-24, Table 2-5, "Major Central 11 Valley Water Rights by Priority Group." For the date of 12 7/30/27 it lists: Calaveras County Water District; Jackson 13 Valley Irrigation District; Oakdale I.D. and South San 14 Joaquin; U.S. Bureau of Reclamation, Jenkinson Lake; 15 Georgetown Divide Public Utility District; U.S. Bureau of 16 Reclamation, Friant; Yuba County Water Agency; Cal 17 Department of Water Resources, Oroville; and U.S. Bureau of 18 Reclamation, Shasta. 19 Does that sound about right, date 7/30/27? 20 MR. RENNING: Yes. 21 MR. JACKSON: All right. Now, as we go into the 22 second table that you have here with Alternative 3 23 Sacramento plus SJRA, no backstop, the only difference 24 between these two tables is that the SJRA has been 25 substituted for the Alternative 3's share of the San CAPITOL REPORTERS (916) 923-5447 10132 1 Joaquin parties, correct? 2 MR. RENNING: The second part of this exhibit shows 3 how the priority group cutoff would take place if the San 4 Joaquin River portion of it were taken out, so to speak. 5 MR. JACKSON: This would assume that the San Joaquin 6 would make no contribution, so this is half of Alternative 7 3? 8 MR. RENNING: Yes, that's right -- well, I wouldn't 9 necessarily put it that way. It shows what the effect 10 would be if the San Joaquin River direct diversions and 11 diversions to storage were taken out of the computation. 12 MR. JACKSON: All right. And so the project, if that 13 was the case, then in Line 11B on the second table of 103B, 14 which shows a project obligation of 284 -- I guess that's 15 1,000 acre-feet? 16 MR. RENNING: Yes. 17 MR. JACKSON: Essentially, why does the project 18 obligation go up from 203,000 from the first table? 19 MR. RENNING: That's because here on Line 3B this is 20 the storage that is taking place on the San Joaquin River 21 under priority group one. And this is the direct diversion 22 that has taken place on the San Joaquin River from priority 23 group one. And the difference between these values should 24 be -- the sum of these values should be the difference 25 between this value and this value. CAPITOL REPORTERS (916) 923-5447 10133 1 C.O. STUBCHAER: Would you, please, line numbers on 2 that last. 3 MS. LEIDIGH: Yes. 4 C.O. STUBCHAER: The numbers. 5 MR. BRANDT: 3B -- 6 MR. RENNING: 3B and 8B. 7 MR. BRANDT: Add it together. 8 MR. RENNING: Those added together are the difference 9 between -- 10 MR. JACKSON: 11B and 8A? 11 MR. RENNING: Yes. 12 MR. JACKSON: All right. 13 MR. RENNING: It's about 203,000 acre-feet, yes. 14 MR. JACKSON: So for the second table if the San 15 Joaquin -- if you did Alternative 3 on the Sacramento side 16 and Alternative 2 on the San Joaquin River side, the 17 projects' obligation would go up by almost 203,000 18 acre-feet? 19 MR. RENNING: That's right. 20 MR. JACKSON: All right. So the backstop that you're 21 talking about now -- hang on a second. 22 MR. BRANDT: I'll get it. 23 MR. JACKSON: Thank you. So by adding the backstop 24 to Alternative 3, the project declines in its obligation by 25 203,000 acre-feet of water? CAPITOL REPORTERS (916) 923-5447 10134 1 MR. RENNING: No. What it shows is that unless there 2 is a correction made to the determination of who gets -- 3 of what water right holders are cut off, that there would 4 be a cutoff that goes all the way down to priority seven. 5 MR. JACKSON: Which would, in effect, include all of 6 your facilities? 7 MR. RENNING: Well, I don't think that that's 8 relevant, because we are already releasing water from 9 storage. We're releasing -- in this example we're 10 releasing 253,000 acre-feet of water from storage or 11 imports to meet the Delta requirement. We are not storing 12 water in June of 1925. 13 MR. JACKSON: And what this adding of the backstop 14 does is it allows you to store more water? 15 MR. RENNING: No, it doesn't. 16 MR. JACKSON: Then why is the project obligation so 17 much less with the backstop than it is without the 18 backstop? 19 MR. RENNING: I'm sorry, yes, if you don't make that 20 correction and if those parties, indeed, not divert. I 21 would point out, and this is something that we were talking 22 about out in the hallway, that most of the people in the 23 Sacramento Valley are already under contract to the Bureau 24 or to the state. 25 MR. JACKSON: Well, let's talk about that. Many of CAPITOL REPORTERS (916) 923-5447 10135 1 them in the Sacramento Valley are under contract under 2 settlement contractors' contracts, right? 3 MR. RENNING: Yes. 4 MR. JACKSON: Where they had original water rights 5 well prior to the building of the projects? 6 MR. RENNING: Some of them have water rights that are 7 senior to the Bureau's water rights and are senior to the 8 construction of the CVP, but some of those water right 9 holders are also junior to the Bureau's rights and junior 10 to the construction of the CVP. 11 MR. JACKSON: And just for the record, the Bureau's 12 position is that there is no difference between the 13 settlement contractors that had rights senior to the CVP 14 and those who have contract rights subsequent to the CVP? 15 MR. RENNING: No. Their water right settlement 16 contract reflects their priority of right and what their 17 deficiency and right would be. A right holder with a very 18 senior right has a very small deficiency right. And a 19 junior right holder has a larger deficiency right. And 20 they pay for the difference accordingly. 21 MR. JACKSON: So it's a matter of payment, not a 22 matter of whether or not they would be curtailed? 23 MR. RENNING: For people who have contracts, yes. 24 MR. JACKSON: Now, I'd like to call your attention, 25 again, to the date of 7/30/27, priority group four which CAPITOL REPORTERS (916) 923-5447 10136 1 includes -- it's on Page 2-24, which includes Shasta, 2 Oroville, Friant and then some small upstream irrigation 3 districts. 4 In a circumstance in Alternative 3 with the San 5 Joaquin River Agreement and your backstop, in circumstances 6 in which you reach priority group four, and that would be 7 evidently since this is a below normal year and we almost 8 reach priority group four in this year of 1925, I would 9 assume that is every dry and critically dry year. When you 10 reach priority group four do you and DWR cease diversions 11 under Alternative 3? 12 MR. RENNING: We continue to divert under our rights; 13 however, we are not diverting to storage under those 14 circumstances. 15 MR. JACKSON: So you pass through all the water? 16 MR. RENNING: We pass through water to meet the 17 requirements that the projects have which include prior 18 rights. 19 MR. JACKSON: Now, in the same group of folks 20 there's, for instance, the Jackson Valley Irrigation 21 District which would be required to cease to divert, where 22 would it get its water during this period of time? 23 MR. RENNING: They would rely upon their storage. 24 MR. JACKSON: And if they -- if their diversion was 25 in this case a direct diversion, where would they get their CAPITOL REPORTERS (916) 923-5447 10137 1 water? 2 MR. RENNING: I'm not familiar with Jackson Valley 3 Irrigation District, but a direct diverter that does not 4 have a contract with us, if Alternative 3 were imposed, 5 would have to curtail diversions. 6 MR. BRANDT: Can I also for the record add that the 7 witness does not have in front of him the table that you 8 continually refer to. So -- 9 MR. JACKSON: Could we change that? I'm sorry. I 10 assumed that when he did Alternative 3 he took a look at 11 the table. 12 MR. BRANDT: He did, but he does not have it at this 13 point. Memorizing five pages of tables is rather 14 challenging. 15 MR. JACKSON: Page 324 starting from the bottom it's 16 the -- 17 MR. BRANDT: 324 or 224? 18 MR. JACKSON: 224, starting from the bottom, the 19 bottom being Shasta, next being Oroville and it's up about 20 seven. 21 MR. RENNING: Yes. I'm sorry, what's your question? 22 MR. JACKSON: Well, the question was, you know: Is 23 the Bureau going to sell them water? 24 C.O. STUBCHAER: Them? 25 MR. JACKSON: Jackson Valley Irrigation District. CAPITOL REPORTERS (916) 923-5447 10138 1 MR. RENNING: I'm not sure what the Bureau would do. 2 There is the possibility that the projects could offer 3 water right settlement contractors (sic) to parties in the 4 valley. 5 MR. JACKSON: Well, let's go farther up the table in 6 priority group three, because clearly they're going to be 7 cut off for most of the summer. And take a look at the 8 group 1935 water right, the Gray Eagle Land and Water 9 Company, you see those two listings? 10 MR. BRANDT: I think I'm getting to the point now -- 11 are we still on the backstop? 12 MR. JACKSON: Yeah, we are. 13 MR. BRANDT: I'm trying to understand this. 14 MR. JACKSON: I'm trying to find out how these people 15 are going to be backstopped. These are circumstances where 16 we are above the facilities, people have zero groundwater 17 and these are people's homes' water supply. 18 C.O. STUBCHAER: Mr. Brandt, go ahead. 19 MR. BRANDT: I think that's -- I think we're talking 20 about two different topics here. These are -- some of 21 them -- it depends on whether you're talking about San 22 Joaquin or whether you're talking about Sacramento River. 23 You know, San Joaquin are -- have one effect and 24 they would not suffer that. I mean I think Jackson County, 25 I believe, is San Joaquin above Vernalis. CAPITOL REPORTERS (916) 923-5447 10139 1 MR. JACKSON: Actually, it's Mokelumne River, the 2 same kind of question that was just being asked before. 3 MR. BRANDT: Okay. 4 MR. JACKSON: And Gray Eagle Land and Water Company 5 is in the Sierra. 6 C.O. STUBCHAER: Feather? 7 MR. JACKSON: Yeah. 8 MR. RENNING: I think you may be misunderstanding 9 what my testimony has been today. We are backstopping the 10 Delta requirement that the San Joaquin River water right 11 holders would have in the absence of the San Joaquin River 12 Agreement. We're also backstopping what their requirement 13 would be for the Vernalis standards. 14 MR. JACKSON: And -- 15 MR. RENNING: Please, let me finish. And that in 16 making that backstop we are proposing that this 17 modification be made to the -- if the Board should adopt 18 Alternative 3, that this modification be made to the 19 alternative so that responsibility -- the fact that we're 20 making that backstop -- is not imposed on any other water 21 right holders. 22 MR. JACKSON: Well, you are -- 23 MR. RENNING: Now, if Alternative 3 imposes a 24 restriction on somebody that doesn't have a contract with 25 the Bureau or the State, that's the way it is. CAPITOL REPORTERS (916) 923-5447 10140 1 MR. JACKSON: That's the way it is? 2 MR. RENNING: Yes. 3 MR. JACKSON: The United States Government's position 4 is that if someone does not have a contract with the Bureau 5 or the State, that the United States Government's position 6 is that they're just out of luck? 7 MR. RENNING: No, that's what the Board is saying. 8 MR. JACKSON: Well, the Board hasn't said anything 9 yet. 10 MR. RENNING: That's what the Board would be saying 11 with Alternative 3. 12 MR. JACKSON: I understand that. Do you have any 13 idea of how the Bureau, if Alternative 3 was selected with 14 or without the San Joaquin River Agreement and with or 15 without the backstop, how people who live at the top of the 16 Sierra with no groundwater and no access to state or 17 federal facilities would get water? 18 MR. BRANDT: Objection. Beyond the scope of 19 rebuttal. 20 C.O. STUBCHAER: I think that is beyond the scope, 21 Mr. Jackson. You're talking about somebody, as you said, 22 up above state or federal project facilities and the 23 Sacramento watershed not effected by the Vernalis flow -- 24 MR. JACKSON: Mr. Stubchaer, if I could. There is no 25 phase which deals with these people and, yet, they're about CAPITOL REPORTERS (916) 923-5447 10141 1 to be cut off before you folks hear any information on 2 anyone on the Sacramento side and anyone above these 3 projects. 4 C.O. STUBCHAER: Time-out a minute. 5 (Off the record from 3:27 p.m. to 3:30 p.m.) 6 C.O. STUBCHAER: Mr. Jackson? 7 MR. JACKSON: Yes. 8 C.O. STUBCHAER: We understand your concern for the 9 mountain counties and what happens with water shortage, but 10 we're having a difficult time understanding the tie between 11 the backstop that's being discussed and the concern for the 12 -- 13 MR. JACKSON: Certainly. 14 C.O. STUBCHAER: -- Gray Eagle folks. And, for 15 instance, we understand that the exercise that's on the 16 screen is to demonstrate that the effect on the Sacramento 17 side is the same with the backstop and the San Joaquin 18 River Agreement as it would be under Alternative 3 without 19 the backstop. And Alternative 3 has not been selected by 20 anyone for any purpose other than study. It's certainly an 21 alternative in the EIR. 22 We, as the Board, we don't know if it's going to 23 be selected or not, but anyway, can you demonstrate the tie 24 between -- or tell us about the tie -- 25 MR. JACKSON: Sure. CAPITOL REPORTERS (916) 923-5447 10142 1 C.O. STUBCHAER: -- between the two? 2 MR. JACKSON: I may have misunderstood some of the 3 earlier testimony, but it seemed to me that the testimony 4 was clear that there is Sacramento Valley water which is 5 being used to meet X2 to make up for the lack of water 6 coming from the San Joaquin River Agreement. 7 That incremental amount of water is going to 8 require a different cutoff under each and every river 9 system, under each and every year classification and is 10 likely to impact folks upstream that nobody here has even 11 heard of it. 12 C.O. STUBCHAER: Why don't you ask that question of 13 the witness and see if that's the case. 14 MR. JACKSON: Yes, sir. 15 Mr. Renning, what is the amount of water that the 16 Sacramento River and the east side tributaries will be 17 required to contribute to X2 in addition to what they would 18 contribute if you did Alternative 3 on the San Joaquin 19 side? 20 MR. RENNING: There's none. 21 MR. JACKSON: There is no difference in the amount of 22 water? 23 MR. RENNING: That's right. 24 MR. JACKSON: Okay. 25 MR. RENNING: I don't mean to be cute or CAPITOL REPORTERS (916) 923-5447 10143 1 argumentative here, but the whole purpose of this exhibit 2 is to show that backstopping the agreement with the 3 correction that we suggest here results in no difference in 4 the priority level of the cutoff that Alternative 3 would 5 have. 6 MR. JACKSON: If you did Alternative 3 on the 7 Sacramento side and the San Joaquin River Agreement with no 8 backstop, what would be the difference in the amount of 9 water that would be required from the Sacramento side? 10 MR. RENNING: It would be the amount of the 11 contribution that the San Joaquin Agreement parties would 12 otherwise be making. 13 MR. JACKSON: And so that would be in the 14 neighborhood of? 15 MR. RENNING: In this case 211,000 acre-feet. 16 MR. JACKSON: Okay. Now, where does your backstop 17 come from in the event that -- or in the event that 18 Alternative 3 were imposed upon the San Joaquin River side, 19 you're indicating that there would be no less water coming 20 from the Sacramento side? 21 MR. RENNING: I'm sorry, I don't understand the 22 question. 23 MR. JACKSON: Assume Alternative 3 on the San Joaquin 24 River side. 25 MR. RENNING: Okay. CAPITOL REPORTERS (916) 923-5447 10144 1 MR. JACKSON: With Alternative 3 on the San Joaquin 2 River side, would there be more or less water required on 3 the Sacramento side? 4 MR. RENNING: Well, if you're assuming that 5 Alternative 3 is in place there is a certain quantity of 6 water coming from the Sacramento side and a certain 7 quantity of water coming from the San Joaquin side. Okay. 8 Now, if you presumed that the San Joaquin River 9 Agreement is in place and is being backstopped by the 10 projects, that means that there's less water coming down 11 the San Joaquin -- 12 MR. JACKSON: Right. 13 MR. RENNING: -- and more water coming down the 14 Sacramento. 15 MR. JACKSON: Where does that water come from on the 16 Sacramento side? 17 MR. RENNING: That water comes from the projects. 18 MR. JACKSON: And how does -- who then loses water? 19 MR. RENNING: Parties that would, quote, "lose water" 20 under this scenario would be those parties in which the 21 Alternative 3 or the modified Term 91 process would impose 22 a curtailment upon them. They would either have to cease 23 diversions or to make some sort of arrangements with the 24 projects. 25 MR. JACKSON: And those are the people listed in CAPITOL REPORTERS (916) 923-5447 10145 1 priority groups one, two and three under this scenario, 2 correct? 3 MR. RENNING: That's right, but we are not proposing 4 that that be done. We are proposing that there be a 5 correction to the determination of who becomes curtailed 6 such that those parties are not curtailed. That only those 7 parties that would be curtailed under Alternative 3 in the 8 absence of San Joaquin Agreement would still remain the 9 only parties who would be curtailed with the San Joaquin 10 River Agreement in place. 11 MR. JACKSON: Well, my problem is, I guess, that once 12 you assume that there's going to be less water coming down 13 the San Joaquin and that you're going to make that up in 14 the backstop off the Sacramento, it's got to come from 15 somebody, doesn't it? 16 MR. RENNING: In this case it would come from the 17 projects. 18 MR. JACKSON: And then the Sacramento River project 19 contractors would be the ones to make it up? 20 MR. RENNING: No. 21 MR. JACKSON: Well, then how does it get made up? 22 MR. RENNING: It comes out of the project operations. 23 At the end of the year the storage in project reservoirs 24 would probably be somewhat less. 25 C.O. STUBCHAER: So, Mr. Renning, would eventually in CAPITOL REPORTERS (916) 923-5447 10146 1 a series of dry years then somebody's project entitlements 2 be reduced? 3 MR. RENNING: That could happen, yes. 4 MR. JACKSON: And, Mr. Renning, would the carryover 5 storage for winter-run salmon be reduced? 6 MR. RENNING: No, it probably wouldn't because that 7 would be a requirement that would be a first priority 8 requirement on the operations of the project. 9 MR. JACKSON: Now, in considering whether or not to 10 backstop the San Joaquin River Agreement from the 11 Sacramento side, did you take into account the probability 12 of less water from the Trinity system? 13 MR. RENNING: I'm not sure what the assumptions were 14 made in the studies, but it was a consistent assumption in 15 all of the alternatives that were looked at. 16 MR. JACKSON: You don't know how much it was assumed 17 you were going to lose? 18 MR. RENNING: No. What -- no. The Trinity 19 operations is -- or the requirements for flows on the 20 Trinity River were consistent throughout all of the 21 studies. 22 MR. JACKSON: And will not change the amount of water 23 that you have available for the backstop? 24 MR. RENNING: In the context of these studies, no. 25 MR. JACKSON: But in the real world is there a CAPITOL REPORTERS (916) 923-5447 10147 1 potential that more water flowing down the Trinity will 2 decrease the amount of water that you have available in the 3 Sacramento River for your backstop of the San Joaquin River 4 Agreement? 5 MR. RENNING: Yes, it will reduce our capability to 6 meet all of the other requirements that we have to meet. 7 MR. JACKSON: Now, did you also in your consideration 8 of the backstop of the San Joaquin River Agreement from the 9 Sacramento side take into account the PROSIM error -- 10 MR. RENNING: No, that's -- I'm sorry. 11 MR. JACKSON: -- in dry and critically dry years -- 12 MR. RENNING: No. 13 MR. JACKSON: -- that the Bureau recently 14 discovered? 15 MR. RENNING: No. That error is not at all relevant 16 to these studies, because the PROSIM model was not used in 17 any of these studies. 18 MR. JACKSON: Outside of the studies in the real 19 world you're probably going to have less flow in the 20 Sacramento River than you had originally expected to have, 21 correct? 22 MR. RENNING: I'm not sure what you mean by "studies 23 in the real world." 24 MR. JACKSON: Well, your PROSIM model had an 25 assumption of a certain exchange between groundwater and CAPITOL REPORTERS (916) 923-5447 10148 1 surface water on the Sacramento River, did it not? 2 MR. RENNING: I am somewhat aware of what some of the 3 problems were in PROSIM modeling. But let me just say that 4 in the context of these hearings that really has no 5 relevance, because PROSIM modeling was not used in these 6 hearings for any of the studies involved in these hearings. 7 MR. JACKSON: But in order to meet the flow standards 8 -- I mean the model is to reflect the real world, correct? 9 MR. RENNING: Yes. 10 MR. JACKSON: And the assumptions that you were 11 making was a real world connection between groundwater and 12 surface water? 13 MR. RENNING: That's right. But the PROSIM model was 14 not used in any of the studies involved here before the 15 State Board. 16 MR. JACKSON: And so the model that you did use 17 accurately reflected the exchange between the groundwater 18 and the surface water on the Sacramento River? 19 MR. RENNING: It's my understanding that the DWRSIM 20 model that was used in these studies does not have that 21 error in it. 22 MR. JACKSON: Okay. Now, calling your attention to 23 your written testimony on Page 3, you indicate that, 24 (Reading): 25 "Reclamation will meet its backstop commitment CAPITOL REPORTERS (916) 923-5447 10149 1 in such a way as to not impose any further 2 responsibility upon any water right holders not 3 party to this agreement." 4 Who are the water rights holders that are 5 protected by this backstop commitment? 6 MR. RENNING: These are water right holders on the 7 -- well, above Vernalis on the San Joaquin River. 8 MR. JACKSON: This statement is not true in regards 9 to water right holders, for instance, on the Mokelumne 10 system? 11 MR. RENNING: Well, no, they're not covered by the 12 San Joaquin Agreement. 13 MR. JACKSON: All right. So the non-parties that 14 you're talking about here are only upstream of Vernalis? 15 Non-parties on the Sacramento side, we've been through 16 that, could be effected by the backstop agreement? 17 MR. RENNING: I'm sorry. I'm getting a bit confused 18 here. What we are saying here is that we are not -- by 19 our backstopping the San Joaquin Agreement, we intend not 20 to impose any greater commitment for meeting the Bay-Delta 21 standards upon any of the parties that are not a party to 22 this agreement. That would mean any of the other water 23 right holders in the Central Valley. 24 MR. JACKSON: So the commitment, then, is also to 25 your Sacramento Valley contractors? CAPITOL REPORTERS (916) 923-5447 10150 1 MR. RENNING: Yes. That by our backstopping the 2 agreement we are not going to effect them. 3 MR. JACKSON: Okay. And it is also a commitment to 4 folks who are not contractors of the Bureau on the 5 Sacramento side and on the east side? 6 MR. RENNING: That's right. 7 MR. JACKSON: Okay. Now, calling your attention to 8 the second paragraph on the same page in the "Effect on 9 Non-parties," it's actually the third paragraph on the 10 page, you indicate, 11 (Reading): 12 "As to our backstop of the outflow requirements, 13 however, we've identified possible scenarios 14 that would require us to increase our 15 contribution from the Sacramento River system in 16 order to make up for any reductions in the San 17 Joaquin River contributions to outflow 18 requirements." 19 What scenarios have you identified? 20 MR. RENNING: Those are the scenarios that are 21 covered in Exhibits 103A and 103B. 22 MR. JACKSON: What water year classifications would 23 these scenarios exist during? 24 MR. RENNING: They cover all of the years. If you'll 25 -- well, they cover all of the years that are in the study. CAPITOL REPORTERS (916) 923-5447 10151 1 MR. JACKSON: All right. And the study is wet, above 2 normal and below normal years? 3 MR. RENNING: And dry and critically dry years, all 4 five year types. 5 MR. JACKSON: Which years in this study were 6 critically dry? 7 MR. RENNING: I would have to look at a table, but I 8 know that 1924 is a critically dry year, 1931 is a 9 critically dry year, 1976 and 1977 are critically dry 10 years. 11 MR. JACKSON: All right. So the study included more 12 years than are present in this data? 13 MR. RENNING: No, I'm looking at Exhibit 103A. 14 MR. JACKSON: I see, okay. 15 MR. RENNING: That includes all of the years 1922 16 through 1994. Exhibit 103B simply shows certain examples 17 of certain ones -- pardon me, examples of certain ones. 18 MR. JACKSON: Okay. And so the numbers in the total 19 then for the years 1922 through 1994, reflect what? 20 MR. RENNING: They reflect what the cost of the San 21 Joaquin River Agreement backstop would be to the projects. 22 MR. JACKSON: Okay. So the cost of the project in 23 1931 would be 144,000 acre-feet? 24 C.O. STUBCHAER: Which page? 25 MR. RENNING: I believe that's 184,000. CAPITOL REPORTERS (916) 923-5447 10152 1 C.O. STUBCHAER: Are you looking at Page 6, 2 Mr. Jackson? 3 MR. JACKSON: I think so. It's Alternative 3. 4 MR. BRANDT: Yes, we are. 5 C.O. STUBCHAER: I know, I was wondering because if 6 that's the same number -- 7 MR. JACKSON: Yeah, I'll go to 6, I was on 3. 8 MR. BRANDT: Thank you. 9 MR. JACKSON: 1931 would be 184? 10 MR. RENNING: Yes, that's right. 11 MR. JACKSON: Now, in a year like 1931 you would take 12 184,000 acre-feet on the monthly schedule and you would put 13 it into the Delta and you would put it into the Delta from 14 your Sacramento reservoirs, Sacramento Valley reservoirs? 15 MR. RENNING: That's right. 16 MR. JACKSON: And that would go all the way -- that 17 would not be picked up either by your contractors or 18 anybody else until it was outflow? 19 MR. RENNING: Well, these studies presume that our 20 contractors are diverting water that they would otherwise 21 be diverting. 22 MR. JACKSON: All right. So in other words, this 23 water would reach Suisun Bay, not go to the pumps? 24 MR. RENNING: That's right. Well, let me clarify 25 that, this would be part of the Delta inflow that goes to CAPITOL REPORTERS (916) 923-5447 10153 1 meet all of the requirements that we're meeting with Delta 2 inflow which include Delta outflow and the export 3 requirements and in Delta requirements. 4 Now, it's impossible for us to say that this 5 acre-foot of water is going for this purpose, because they 6 become mixed since they go through the system. 7 MR. JACKSON: But this 184,000 acre-feet in 1931 8 would be taken away from some contractor of yours in the 9 Sacramento Valley? 10 MR. RENNING: That's a possibility, yes. 11 MR. JACKSON: And it might result then in an export 12 contractor getting more water? 13 MR. RENNING: No. I think it would result -- I 14 think the potential is probably greater that it would 15 result in an export contractor receiving less water, 16 because there would be a lower allocation to that, to the 17 export uses. 18 MR. JACKSON: Why would there be a lower allocation 19 to an export user when you were releasing water from 20 upstream, just water that they didn't get because it was 21 X2? 22 MR. RENNING: No. It would be because the projects 23 now have a greater demand placed upon them, because we are 24 backstopping the San Joaquin Agreement. And we -- and in 25 the allocation of the water from the projects under that CAPITOL REPORTERS (916) 923-5447 10154 1 circumstance we may impose a greater deficiency on one or 2 another of our contractors, or in some of the uses that we 3 meet from the projects. 4 MR. JACKSON: But there would be no way to tell that 5 except in an operating scenario? 6 MR. RENNING: That's right. 7 MR. JACKSON: You couldn't predict it? 8 MR. RENNING: We can't predict it with any degree of 9 certainty with this information. What we would have to do 10 would be to run another operation study that included 11 explicitly the backstop for the San Joaquin Agreement and 12 the San Joaquin Agreement. 13 MR. JACKSON: And you have not yet done that? 14 MR. RENNING: No, that has not been done. 15 MR. JACKSON: Okay. Now, lastly, you've assumed for 16 the purposes of this particular discussion that the State 17 Board is going to modify Term 91; is that correct? 18 MR. RENNING: Well -- I'm searching for the right 19 words here. We would certainly hope that if the State 20 Board does ultimately adopt Alternative 3 with the San 21 Joaquin Agreement, that they would make the correction to 22 the modified Term 91 process that we have suggested. 23 MR. JACKSON: Will the backstop work without Term 91 24 being modified? 25 MR. RENNING: Well, the backstop will work but unless CAPITOL REPORTERS (916) 923-5447 10155 1 you modify Term 91 you're going to impose potential 2 curtailments upon parties that the agreement is not 3 intended to have any responsibility imposed upon. 4 MR. JACKSON: So one of the requirements, then, for 5 the San Joaquin River Agreement being successful -- by that 6 I mean everybody stays in it -- is that the Board has to 7 modify Term 91 or, in your opinion, the San Joaquin River 8 Agreement will fall apart? 9 MR. RENNING: Well -- 10 C.O. STUBCHAER: What was that, only assuming that 11 Alternative 3 is selected? I mean that's a very broad 12 question. 13 MR. JACKSON: Assuming that Alternative 3 is selected 14 -- 15 C.O. STUBCHAER: Yeah. 16 MR. JACKSON: -- then there's a further assumption 17 that Term 91 would be applied to everybody. 18 C.O. STUBCHAER: That first assumption wasn't in the 19 first question. 20 MR. JACKSON: Assuming that Alternative 3 was 21 selected, then would the backstop work if Term 91 were not 22 modified? 23 MR. RENNING: Well, we're getting into hypothetical 24 areas here, but -- 25 MR. JACKSON: Yes. CAPITOL REPORTERS (916) 923-5447 10156 1 MR. RENNING: -- if that occurred and if Alternative 2 3 and the San Joaquin River Agreement were adopted and 3 there wasn't a modification made to Term 91, then I think 4 there would be a number of parties that would have some 5 problems with that and would petition for reconsideration 6 of the Board's decision under that circumstance. 7 MR. JACKSON: Well, there's going to be people doing 8 that anyway, I mean somebody is going to petition. 9 MR. RENNING: Well, not on this specific issue 10 because the intent of the San Joaquin Agreement is that 11 there not be any responsibility imposed upon any other 12 parties. 13 MR. JACKSON: Well, now, wait a minute. Doesn't Term 14 91 -- doesn't a modified Term 91 impose obligations on 15 other parties that don't have them today? 16 MR. RENNING: That's right. But listen to what I 17 said, "as a result of the San Joaquin Agreement." 18 MR. JACKSON: So part of the reason as you see it for 19 the San Joaquin Agreement is to allow Term 91 to be 20 modified without effecting the parties in the San Joaquin 21 River Agreement? 22 MR. RENNING: No. No. No. You're misunderstanding 23 what I'm saying. 24 MR. JACKSON: All right. Would you explain it to me 25 again? CAPITOL REPORTERS (916) 923-5447 10157 1 MR. RENNING: In the San Joaquin Agreement it is the 2 intent of the parties to the San Joaquin Agreement that 3 whatever responsibility that comes out of the San Joaquin 4 River Agreement only be imposed, i.e., the backstop, only 5 be imposed upon the projects, the CVP and the SWP and on no 6 one else. 7 In going through an analysis of this we have had 8 to use -- we've had to compare that to one of the examples 9 in which there is responsibility imposed upon other 10 parties. That's Alternative 3. That's what I meant by 11 saying: It doesn't make any sense to compare this to 12 Alternative 2, because we're the only people that have 13 responsibility under Alternative 2. 14 MR. JACKSON: But under Alternative 3, the only 15 people who would not be subject to the modified Term 91 16 would be the San Joaquin River Agreement parties? 17 MR. RENNING: That's right. 18 MR. JACKSON: Thank you. 19 C.O. STUBCHAER: Staff have questions of Mr. Renning? 20 ---oOo--- 21 CROSS-EXAMINATION OF THE DEPARTMENT OF THE INTERIOR 22 BY STAFF 23 MR. HOWARD: I have just a couple of quick questions 24 dealing with some material written in your Exhibit 103. 25 The first page, third paragraph, the last two sentences of CAPITOL REPORTERS (916) 923-5447 10158 1 that paragraph say, 2 (Reading): 3 One difficulty with relying on New Melones is 4 that Reclamation ordinarily limits New Melones 5 releases to 1500 cfs. This limitation arises 6 out of problems caused by flows exceeding 1500 7 Cfs to land adjacent to downstream stretches of 8 the Stanislaus." 9 Could you briefly explain the problems you're 10 referring to? 11 MR. RENNING: This flow limitation comes out of a 12 lawsuit that was filed by various parties on the Lower San 13 Joaquin River in the early 1980s when Reclamation was in 14 the process of attempting to comply with conditions that 15 were in our permits at that time that prohibited us from 16 storing above certain levels in New Melones Reservoir. 17 In order to meet those reservoir levels we were 18 having to make flow releases substantially in excess of 19 1500 cfs down the lower Stanislaus. Those flows caused 20 certain problems to agricultural operations and to some of 21 the levees that are on the lower Stanislaus. 22 And in that those flows were not required for 23 flood control purposes, these parties went to the Court and 24 said, "Look, tell the Bureau to stop making these releases 25 because they really don't need to because there is not a CAPITOL REPORTERS (916) 923-5447 10159 1 flood." 2 The Court told the Bureau to go back and study the 3 matter and come up with an operation plan that had a limit 4 at which there would not be damaging flows to these parties 5 on the lower Stanislaus River. We did that and our plan 6 showed that -- and these studies that were associated with 7 that plan showed that that limit was 1500 cfs. 8 And we have operated to that limit from that time 9 during the times that we are not in flood control 10 operations. Of course, when we are in flood control 11 operations we do make releases that are substantially 12 greater than that. 13 MR. HOWARD: But what specifically is the problem 14 that's caused at flows above of 1500 cfs? 15 MR. RENNING: The problem is at certain times of the 16 year the higher flows cause water logging in the lands that 17 are adjacent to the river and this causes damages to the 18 tree crops that are grown on those lands. 19 MR. HOWARD: And do you know how many acres are 20 effected by this water logging problem? 21 MR. RENNING: No, I do not. 22 MR. HOWARD: Okay. Thank you. 23 C.O. STUBCHAER: Anyone else on the staff? 24 Mr. Brown? 25 MS. LEIDIGH: I -- CAPITOL REPORTERS (916) 923-5447 10160 1 C.O. STUBCHAER: Excuse me, did I miss you, 2 Ms. Leidigh? 3 MS. LEIDIGH: I was just thinking about that last 4 question that Mr. Howard asked, he asked you: How many 5 acres? One further question is: 6 Has the Bureau of Reclamation ever taken any steps 7 to acquire the land that would be flooded to find a way to 8 keep it from causing damage, a way to keep the flows in 9 excess of 1500 cfs from causing damage in that area? 10 MR. RENNING: Not that I'm aware of. 11 MS. LEIDIGH: Okay. Thank you. 12 C.O. STUBCHAER: Mr. Brown. 13 ---oOo--- 14 CROSS-EXAMINATION OF THE DEPARTMENT OF THE INTERIOR 15 BY THE BOARD 16 C.O. BROWN: In your discussion with I think 17 Mr. Nomellini or Mr. Herrick, you mentioned that the 18 recirculation program would cause -- I think the term was 19 "unreasonable problems." 20 What are the problems? 21 MR. RENNING: I would also note that in my testimony 22 I kind of clarified what I meant by reasonable and 23 unreasonable. I was uncomfortable with those black and 24 white connotations that those terms have. 25 We do know that there are problems associated with CAPITOL REPORTERS (916) 923-5447 10161 1 making releases from the export canals to the San Joaquin 2 River. 3 C.O. BROWN: Design problems, mechanical problems, is 4 that what you mean? 5 MR. RENNING: There are problems with putting water 6 down the wasteways. The wasteways are not necessarily 7 designed to take long sustained flows such as are being 8 proposed. There are some water quality problems associated 9 with the wasteways that we don't have a good handle on. 10 We don't know whether the recirculation scheme in 11 and of itself will actually provide the benefits, or the 12 results that it is intended to provide. There are some 13 potential environmental problems associated with it, with 14 the fisheries, that we don't know exactly what those are 15 and those need to be investigated. And there are energy 16 costs and potential water supply costs that are associated 17 with the recirculation alternative that have not yet been 18 fully examined. 19 C.O. BROWN: Okay. Are you familiar with the 20 groundwater in the San Joaquin County area being mined and 21 the demands within the general area exceeding supplies in 22 your analysis? 23 MR. RENNING: From the testimony here at these 24 hearings I've learned about it, yes. 25 C.O. BROWN: Assuming that the water that is being CAPITOL REPORTERS (916) 923-5447 10162 1 used in that general area of Oakdale and South San Joaquin 2 and where you intend to acquire water from backstopping, 3 that the water is being efficiently used right now to 4 irrigate crops or for domestic purposes and there's going 5 to be additional water to come out of that area to meet 6 water quality standards, where's that water coming from? 7 Who's going to lose water? 8 Is it going to be from land that goes fallowed, or 9 how are you going to make up the water shortfall if, 10 indeed, the water is currently being used efficiently today 11 and is needed, but you intend to divert water out of this 12 region to meet water quality standards in the Delta, who in 13 a sense pays for that water? 14 MR. RENNING: I'm not in a position to describe the 15 operations that Oakdale and South San Joaquin Irrigation 16 Districts would undertake to make this water available. 17 The situation that we have with those districts is that we 18 have a water right settlement agreement with them that has 19 certain quantities of water in it and that the availability 20 of water is tied to that agreement. 21 C.O. BROWN: You worked on water transfers before, 22 haven't you? 23 MR. RENNING: Yes. 24 C.O. BROWN: The Bureau of Reclamation generally has 25 a wheeling charge if you have private parties that's CAPITOL REPORTERS (916) 923-5447 10163 1 involved, particularly if it goes through the Delta? 2 MR. RENNING: Yes, there is a water cost that is 3 associated with moving water across the Delta. 4 C.O. BROWN: And if private parties are making this 5 buy/sell arrangement, the Bureau imposes a surcharge on the 6 transfers? 7 MR. RENNING: The Bureau and the Department of Water 8 Resources impose that charge. 9 C.O. BROWN: I also believe that the Bureau -- this 10 is the question: Is the Bureau still considering deep 11 percolation of an area and such a transfer that the buyer 12 also has to provide a quantity of water equal to what the 13 deep percolation would have been had the water not been 14 transferred? 15 MR. RENNING: It's the Bureau's policy regarding 16 water transfers that such transfers be supported by changes 17 in consumptive use, or from storage that would not 18 otherwise be released and --or changes that result in the 19 reduction of water that goes to irrecoverable losses. 20 C.O. BROWN: So there's two losses that the Bureau 21 concerns itself with primarily, I would suggest that this 22 is true, that would be the wheeling and the deep 23 percolation losses between buyers and sellers that they 24 have to compensate in the sale of water to adjust the 25 quantities of water that's being wheeled plus the amount CAPITOL REPORTERS (916) 923-5447 10164 1 needed for deep percolation and wheeling. 2 MR. RENNING: I don't believe that we impose any kind 3 of requirements upon deep percolation. We simply require 4 that the water be made available by changes in consumptive 5 use and that there may be some other requirements that are 6 imposed by other parties on transfers of water from 7 particular areas regarding groundwater. 8 C.O. BROWN: With this water purchased, then, that 9 you're making from Oakdale and others and the wheeling of 10 it through the Delta, are you providing any compensation 11 for the people who had been using this water before in a 12 similar manner as what you're imposing on others by their 13 buy/sell arrangement? 14 MR. RENNING: That's a question that we've been 15 wrestling with in our analysis of these transfers. And I'm 16 -- I'm sorry, Mr. Brown, but I just can't give you a good 17 answer to that question. 18 C.O. BROWN: Okay. Where will the dollars come to 19 buy this water for wheeling -- or for meeting water 20 quality standards, is that coming out of the CVPIA? 21 MR. RENNING: It's my understanding that CVPIA water 22 -- or CVPIA monies will be used to purchase water to meet 23 the fishery flows. 24 C.O. BROWN: Is there any distinction made between 25 water that is purchased that has actually reduced the CAPITOL REPORTERS (916) 923-5447 10165 1 consumptive use requirement as opposed to water that's 2 purchased through just re-regulation? 3 MR. RENNING: Yes, there are. The parties making 4 such water available make it available for different 5 prices. And generally re-regulation comes at a lower price 6 than reductions in consumptive use. 7 C.O. BROWN: Thank you, Mr. Chairman. Thank you, 8 Mr. Renning. 9 C.O. STUBCHAER: Ms. Forster, you had a question? 10 MEMBER FORSTER: Yes. I'm going to go back to some 11 cross-examination earlier this morning when someone asked 12 you how you correlate these different flows that are 13 required on the water users like the AFRP and what the 14 Water Quality Control Plan says. 15 And it was my understanding that you said you 16 can't merely correlate because you're going to have to 17 decide these things on a year-by-year basis. 18 Is it true that there is no global look at what 19 all these impacts are and how they all fit in together, 20 there is no correlation, or somebody used the word 21 "cumulative analysis" of what it means? 22 MR. RENNING: I think that what I was saying in that 23 testimony was that it is difficult for us or any other 24 party at this point in time to say exactly what we would do 25 under certain circumstances that might exist in the future. CAPITOL REPORTERS (916) 923-5447 10166 1 We can make certain assumptions, certain estimates 2 of how things would happen as was done in the way that 3 Alternative 8 was done, but that is not necessarily the 4 complete picture of how our project and other projects 5 would be operated in a particular year. 6 MEMBER FORSTER: And later on when the Delta 7 representatives were asking you questions, did you make a 8 statement when asked: What was your number one priority, 9 that water quality was your number one priority? 10 MR. RENNING: I think what I was responding to was 11 that in testimony that Lowell Ploss presented on the New 12 Melones Interim Operation Agreement that there is a 13 priority of how we will meet particular uses and particular 14 releases from New Melones Reservoir. 15 And the very first priority that is on that chart 16 is for the water quality at Ripon, which is a dissolved 17 oxygen standard in the lower Stanislaus River. 18 MEMBER FORSTER: In your opinion, do you think that 19 this San Joaquin River Agreement in Phase II and II-A gives 20 a lot more weight to fish flows than it does to water 21 quality issues related to agricultural water quality issues 22 for the downstream users? I might have made that too 23 broad. 24 It is interesting to try to determine how much 25 significance the water quality issues for agriculture use CAPITOL REPORTERS (916) 923-5447 10167 1 downstream, down near Vernalis, how much significance is 2 that given when all the parties are looking at how to meet 3 fishery flows? It doesn't seem equal to me. And I wanted 4 to know your opinion of: Do you think it's given equal 5 weight or isn't it and why do you think that is? 6 MR. RENNING: Well, that's a pretty broad question. 7 MEMBER FORSTER: I think very broadly. 8 MR. RENNING: I would have to answer it in this way: 9 Just like we believe that the New Melones Interim Operation 10 Plan reasonably meets all of the various uses and 11 requirements that we have on the Stanislaus River that the 12 San Joaquin River Agreement meets all of the requirements 13 that exists on the San Joaquin River in a reasonable way. 14 MEMBER FORSTER: Then my last question, which is even 15 harder to focus on, but I just want to know your opinion: 16 How hard or how easy is it going to be to keep the San 17 Joaquin River Agreement intact? 18 I'm just curious, you seem to have really had a 19 lot of work that you personally have done on this. What 20 kind of assurances or certainty can the Board have that we 21 haven't spent all of this time and public dollars trying to 22 resolve the issues of the San Joaquin River? How hard or 23 how easy is this agreement going to be? I know the tenets 24 of it, we've gone over it, I've listened to it, but in 25 reality? CAPITOL REPORTERS (916) 923-5447 10168 1 MR. RENNING: Well, I think it comes down to the 2 various parties that feel that they're going to be affected 3 by this agreement and how much they feel that they're going 4 to be affected and whether they believe that that's enough 5 for them to raise legal challenges to the agreement. 6 C.O. STUBCHAER: Ms. Forster, you can also ask that 7 of the San Joaquin River Group. 8 MEMBER FORSTER: Okay. All right. That's all I 9 have. 10 C.O. STUBCHAER: That concludes the 11 cross-examination. 12 Are you going to have redirect? It's not going to 13 be today. 14 MR. BRANDT: I understand so let me just -- get a 15 moment here. 16 I have no redirect. I would just like to clarify 17 we will prepare a clean copy of this with 18 fill-in-the-blanks with 103A and B and all those kinds of 19 things and mark "A" and "B" on the attachments and send it 20 out to all the parties. 21 C.O. STUBCHAER: And we'll rule on accepting that 22 later. 23 MR. BRANDT: Right, but in that version. 24 C.O. STUBCHAER: And we do appreciate, again, your 25 willingness to go today and also appreciate the fact that CAPITOL REPORTERS (916) 923-5447 10169 1 you did have written testimony, even though there were only 2 a few typos really. 3 MR. BRANDT: Right. 4 C.O. STUBCHAER: So thank you. 5 And let's see regarding tomorrow, Mr. Godwin, will 6 your witnesses be ready tomorrow? 7 MR. BRANDT: We have one more. So we can be here 8 tomorrow. 9 C.O. STUBCHAER: You have another one tomorrow? 10 MR. BRANDT: Yes. 11 C.O. STUBCHAER: Let's just spend a couple more 12 minutes and discuss the orders of proceeding. 13 Please, Mr. Godwin. 14 MR. GODWIN: We will have witnesses available 15 tomorrow and I understand San Luis Delta-Mendota Water 16 Authority will also have witnesses available tomorrow. I 17 thought I would talk to the other parties after the hearing 18 so we could find out who's going up first and so forth. 19 C.O. STUBCHAER: Very good. Anything else from 20 staff? Okay, we're adjourned until 9:00 a.m. tomorrow 21 morning. 22 (The proceedings concluded at 4:19 p.m.) 23 ---oOo--- 24 25 CAPITOL REPORTERS (916) 923-5447 10170 1 REPORTER'S_CERTIFICATE __________ ___________ 2 3 STATE OF CALIFORNIA ) ) ss. 4 COUNTY OF SACRAMENTO ) 5 I, MARY R. GALLAGHER, certify that I was the 6 Official Court Reporter for the proceedings named herein, 7 and that as such reporter I reported in verbatim shorthand 8 writing those proceedings; that I thereafter caused my 9 shorthand writing to be reduced to typewriting, and the 10 pages numbered 9978 through 10170 herein constitute a 11 complete, true and correct record of the proceedings. 12 IN WITNESS WHEREOF, I have subscribed this 13 certificate at Sacramento, California, on this 27th day of 14 February, 1999. 15 16 ________________________________ MARY R. GALLAGHER, CSR #10749 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 10171