STATE WATER RESOURCES CONTROL BOARD PUBLIC HEARING 1998 BAY-DELTA WATER RIGHTS HEARING HELD AT: BONDERSON BUILDING 901 P STREET SACRAMENTO, CALIFORNIA WEDNESDAY, FEBRUARY 17, 1999 9:00 A.M. Reported by: ESTHER F. WIATRE CSR NO. 1564 CAPITOL REPORTERS (916) 923-5447 1 APPEARANCES BOARD MEMBERS: 2 JAMES STUBCHAER, COHEARING OFFICER 3 JOHN W. BROWN, COHEARING OFFICER MARY JANE FORSTER 4 MARC DEL PIERO 5 STAFF MEMBERS: 6 WALTER PETTIT, EXECUTIVE DIRECTOR VICTORIA WHITNEY, CHIEF BAY-DELTA UNIT 7 THOMAS HOWARD, SUPERVISING ENGINEER 8 COUNSEL: 9 WILLIAM R. ATTWATER, CHIEF COUNSEL BARBARA LEIDIGH 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 PRINCETON CODORA GLENN IRRIGATION DISTRICT, et al.: 3 FROST, DRUP & ATLAS 134 West Sycamore Street 4 Willows, California 95988 BY: J. MARK ATLAS, ESQ. 5 JOINT WATER DISTRICTS: 6 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON: 7 P.O. BOX 1679 Oroville, California 95965 8 BY: WILLIAM H. BABER III, ESQ. 9 CALIFORNIA SPORTFISHING PROTECTION ALLIANCE: 10 ROBERT J. BAIOCCHI P.O. Box 357 11 Quincy, California 12 BELLA VISTA WATER DISTRICT: 13 BRUCE L. BELTON, ESQ. 2525 Park Marina Drive, Suite 102 14 Redding, California 96001 15 WESTLANDS WATER DISTRICT: 16 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 400 Capitol Mall, 27th Floor 17 Sacramento, California 95814 BY: THOMAS W. BIRMINGHAM, ESQ. 18 and AMELIA MINABERRIGARAI, ESQ. 19 THE BAY INSTITUTE OF SAN FRANCISCO: 20 GARY BOBKER 21 55 Shaver Street, Suite 330 San Rafael, California 94901 22 CITY OF ANTIOCH, et al.: 23 FREDERICK BOLD, JR., ESQ. 24 1201 California Street, Suite 1303 San Francisco, California 94109 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 LEAGUE OF WOMEN VOTERS: 3 ROBERTA BORGONOVO 2480 Union Street 4 San Francisco, California 94123 5 UNITED STATES DEPARTMENT OF THE INTERIOR: 6 OFFICE OF THE SOLICITOR 2800 Cottage Way, Room E1712 7 Sacramento, California 95825 BY: ALF W. BRANDT, ESQ. 8 CALIFORNIA URBAN WATER AGENCIES: 9 BYRON M. BUCK 10 455 Capitol Mall, Suite 705 Sacramento, California 95814 11 RANCHO MURIETA COMMUNITY SERVICES DISTRICT: 12 MCDONOUGH, HOLLAND & ALLEN 13 555 Capitol Mall, 9th Floor Sacramento, California 95814 14 BY: VIRGINIA A. CAHILL, ESQ. 15 CALIFORNIA DEPARTMENT OF FISH AND GAME: 16 OFFICE OF ATTORNEY GENERAL 1300 I Street, Suite 1101 17 Sacramento, California 95814 BY: MATTHEW CAMPBELL, ESQ. 18 NATURAL RESOURCES DEFENSE COUNCIL: 19 HAMILTON CANDEE, ESQ. 20 71 Stevenson Street San Francisco, California 94105 21 ARVIN-EDISON WATER STORAGE DISTRICT, et al.: 22 DOOLEY HERR & WILLIAMS 23 3500 West Mineral King Avenue, Suite C Visalia, California 93291 24 BY: DANIEL M. DOOLEY, ESQ. 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 SACRAMENTO MUNICIPAL UTILITY DISTRICT: 3 LESLIE A. DUNSWORTH, ESQ. 6201 S Street 4 Sacramento, California 95817 5 SOUTH SAN JOAQUIN IRRIGATION DISTRICT, et al.: 6 BRAY, GEIGER, RUDQUIST & NUSS 311 East Main Street, 4th Floor 7 Stockton, California 95202 BY: STEVEN P. EMRICK, ESQ. 8 EAST BAY MUNICIPAL UTILITY DISTRICT: 9 EBMUD OFFICE OF GENERAL COUNSEL 10 375 Eleventh Street Oakland, California 94623 11 BY: FRED S. ETHERIDGE, ESQ. 12 GOLDEN GATE AUDUBON SOCIETY: 13 ARTHUR FEINSTEIN 2530 San Pablo Avenue, Suite G 14 Berkeley, California 94702 15 CONAWAY CONSERVANCY GROUP: 16 UREMOVIC & FELGER P.O. Box 5654 17 Fresno, California 93755 BY: WARREN P. FELGER, ESQ. 18 THOMES CREEK WATER ASSOCIATION: 19 THOMES CREEK WATERSHED ASSOCIATION 20 P.O. Box 2365 Flournoy, California 96029 21 BY: LOIS FLYNNE 22 COURT APPOINTED REPS OF WESTLANDS WD AREA 1, et al.: 23 LAW OFFICES OF SMILAND & KHACHIGIAN 601 West Fifth Street, Seventh Floor 24 Los Angeles, California 90075 BY: CHRISTOPHER G. FOSTER, ESQ. 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 CITY AND COUNTY OF SAN FRANCISCO: 3 OFFICE OF THE CITY ATTORNEY 1390 Market Street, Sixth Floor 4 San Francisco, California 94102 BY: DONN W. FURMAN, ESQ. 5 CAMP FAR WEST IRRIGATION DISTRICT, et al.: 6 DANIEL F. GALLERY, ESQ. 7 926 J Street, Suite 505 Sacramento, California 95814 8 BOSTON RANCH COMPANY, et al.: 9 J.B. BOSWELL COMPANY 10 101 West Walnut Street Pasadena, California 91103 11 BY: EDWARD G. GIERMANN 12 SAN JOAQUIN RIVER GROUP AUTHORITY, et al.: 13 GRIFFTH, MASUDA & GODWIN 517 East Olive Street 14 Turlock, California 95381 BY: ARTHUR F. GODWIN, ESQ. 15 NORTHERN CALIFORNIA WATER ASSOCIATION: 16 RICHARD GOLB 17 455 Capitol Mall, Suite 335 Sacramento, California 95814 18 PLACER COUNTY WATER AGENCY, et al.: 19 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 20 400 Capitol Mall, 27th Floor Sacramento, California 95814 21 BY: JANET GOLDSMITH, ESQ. 22 ENVIRONMENTAL DEFENSE FUND: 23 DANIEL SUYEYASU, ESQ. and 24 THOMAS J. GRAFF, ESQ. 5655 College Avenue, Suite 304 25 Oakland, California 94618 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 CALAVERAS COUNTY WATER DISTRICT: 3 SIMON GRANVILLE P.O. Box 846 4 San Andreas, California 95249 5 CHOWCHILLA WATER DISTRICT, et al.: 6 GREEN, GREEN & RIGBY P.O. Box 1019 7 Madera, California 93639 BY: DENSLOW GREEN, ESQ. 8 CALIFORNIA FARM BUREAU FEDERATION: 9 DAVID J. GUY, ESQ. 10 2300 River Plaza Drive Sacramento, California 95833 11 SANTA CLARA VALLEY WATER DISTRICT: 12 MORRISON & FORESTER 13 755 Page Mill Road Palo Alto, California 94303 14 BY: KEVIN T. HAROFF, ESQ. 15 CITY OF SHASTA LAKE: 16 ALAN N. HARVEY P.O. Box 777 17 Shasta Lake, California 96019 18 COUNTY OF STANISLAUS: 19 MICHAEL G. HEATON, ESQ. 926 J Street 20 Sacramento, California 95814 21 GORRILL LAND COMPANY: 22 GORRILL LAND COMPANY P.O. Box 427 23 Durham, California 95938 BY: DON HEFFREN 24 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 SOUTH DELTA WATER AGENCY: 3 JOHN HERRICK, ESQ. 3031 West March Lane, Suite 332 East 4 Stockton, California 95267 5 COUNTY OF GLENN: 6 NORMAN Y. HERRING 525 West Sycamore Street 7 Willows, California 95988 8 REGIONAL COUNCIL OF RURAL COUNTIES: 9 MICHAEL B. JACKSON, ESQ. 1020 Twelfth Street, Suite 400 10 Sacramento, California 95814 11 DEER CREEK WATERSHED CONSERVANCY: 12 JULIE KELLY P.O. Box 307 13 Vina, California 96092 14 DELTA TRIBUTARY AGENCIES COMMITTEE: 15 MODESTO IRRIGATION DISTRICT P.O. Box 4060 16 Modesto, California 95352 BY: BILL KETSCHER 17 SAVE THE SAN FRANCISCO BAY ASSOCIATION: 18 SAVE THE BAY 19 1736 Franklin Street Oakland, California 94612 20 BY: CYNTHIA L. KOEHLER, ESQ. 21 BATTLE CREEK WATERSHED LANDOWNERS: 22 BATTLE CREEK WATERSHED CONSERVANCY P.O. Box 606 23 Manton, California 96059 24 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 BUTTE SINK WATERFOWL ASSOCIATION, et al.: 3 MARTHA H. LENNIHAN, ESQ. 455 Capitol Mall, Suite 300 4 Sacramento, California 95814 5 CITY OF YUBA CITY: 6 WILLIAM P. LEWIS 1201 Civic Center Drive 7 Yuba City 95993 8 BROWNS VALLEY IRRIGATION DISTRICT, et al.: 9 BARTKEWICZ, KRONICK & SHANAHAN 1011 22nd Street, Suite 100 10 Sacramento, California 95816 BY: ALAN B. LILLY, ESQ. 11 CONTRA COSTA WATER DISTRICT: 12 BOLD, POLISNER, MADDOW, NELSON & JUDSON 13 500 Ygnacio Valley Road, Suite 325 Walnut Creek, California 94596 14 BY: ROBERT B. MADDOW, ESQ. 15 GRASSLAND WATER DISTRICT: 16 DON MARCIOCHI 22759 South Mercey Springs Road 17 Los Banos, California 93635 18 SAN LUIS CANAL COMPANY: 19 FLANNIGAN, MASON, ROBBINS & GNASS 3351 North M Street, Suite 100 20 Merced, California 95344 BY: MICHAEL L. MASON, ESQ. 21 STONY CREEK BUSINESS AND LAND OWNERS COALITION: 22 R.W. MCCOMAS 23 4150 County Road K Orland, California 95963 24 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 TRI-DAM POWER AUTHORITY: 3 TUOLUMNE UTILITIES DISTRICT P.O. Box 3728 4 Sonora, California 95730 BY: TIM MCCULLOUGH 5 DELANO-EARLIMART IRRIGATION DISTRICT, et al.: 6 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 7 P.O. Box 1679 Oroville, California 95965 8 BY: JEFFREY A. MEITH, ESQ. 9 HUMANE FARMING ASSOCIATION: 10 BRADLEY S. MILLER 1550 California Street, Suite 6 11 San Francisco, California 94109 12 CORDUA IRRIGATION DISTRICT, et al.: 13 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 14 Oroville, California 95965 BY: PAUL R. MINASIAN, ESQ. 15 EL DORADO COUNTY WATER AGENCY: 16 DE CUIR & SOMACH 17 400 Capitol Mall, Suite 1900 Sacramento, California 95814 18 BY: DONALD B. MOONEY, ESQ. 19 GLENN COUNTY FARM BUREAU: 20 STEVE MORA 501 Walker Street 21 Orland, California 95963 22 MODESTO IRRIGATION DISTRICT: 23 JOEL MOSKOWITZ P.O. Box 4060 24 Modesto, California 95352 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 PACIFIC GAS & ELECTRIC: 3 RICHARD H. MOSS, ESQ. P.O. Box 7442 4 San Francisco, California 94120 5 CENTRAL DELTA WATER AGENCY, et al.: 6 NOMELLINI, GRILLI & MCDANIEL P.O. Box 1461 7 Stockton, California 95201 BY: DANTE JOHN NOMELLINI, ESQ. 8 and DANTE JOHN NOMELLINI, JR., ESQ. 9 TULARE LAKE BASIN WATER STORAGE UNIT: 10 MICHAEL NORDSTROM 11 1100 Whitney Avenue Corcoran, California 93212 12 AKIN RANCH, et al.: 13 DOWNEY, BRAND, SEYMOUR & ROHWER 14 555 Capitol Mall, 10th Floor Sacramento, California 95814 15 BY: KEVIN M. O'BRIEN, ESQ. 16 OAKDALE IRRIGATION DISTRICT: 17 O'LAUGHLIN & PARIS 870 Manzanita Court, Suite B 18 Chico, California 95926 BY: TIM O'LAUGHLIN, ESQ. 19 SIERRA CLUB: 20 JENNA OLSEN 21 85 Second Street, 2nd Floor San Francisco, California 94105 22 YOLO COUNTY BOARD OF SUPERVISORS: 23 LYNNEL POLLOCK 24 625 Court Street Woodland, California 95695 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 PATRICK PORGANS AND ASSOCIATES: 3 PATRICK PORGANS P.O. Box 60940 4 Sacramento, California 95860 5 BROADVIEW WATER DISTRICT, et al.: 6 DIANE RATHMANN 7 FRIENDS OF THE RIVER: 8 BETSY REIFSNIDER 128 J Street, 2nd Floor 9 Sacramento, California 95814 10 MERCED IRRIGATION DISTRICT: 11 FLANAGAN, MASON, ROBBINS & GNASS P.O. Box 2067 12 Merced, California 95344 BY: KENNETH M. ROBBINS, ESQ. 13 CENTRAL SAN JOAQUIN WATER CONSERVATION DISTRICT: 14 REID W. ROBERTS, ESQ. 15 311 East Main Street, Suite 202 Stockton, California 95202 16 METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA: 17 JAMES F. ROBERTS 18 P.O. Box 54153 Los Angeles, California 90054 19 SACRAMENTO AREA WATER FORUM: 20 CITY OF SACRAMENTO 21 980 9th Street, 10th Floor Sacramento, California 95814 22 BY: JOSEPH ROBINSON, ESQ. 23 24 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 TUOLUMNE RIVER PRESERVATION TRUST: 3 NATURAL HERITAGE INSTITUTE 114 Sansome Street, Suite 1200 4 San Francisco, California 94194 BY: RICHARD ROOS-COLLINS, ESQ. 5 CALIFORNIA DEPARTMENT OF WATER RESOURCES: 6 DAVID SANDINO, ESQ. 7 CATHY CROTHERS, ESQ. P.O. Box 942836 8 Sacramento, California 94236 9 FRIANT WATER USERS AUTHORITY: 10 GARY W. SAWYERS, ESQ. 575 East Alluvial, Suite 101 11 Fresno, California 93720 12 KERN COUNTY WATER AGENCY: 13 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 400 Capitol Mall, 27th Floor 14 Sacramento, California 95814 BY: CLIFFORD W. SCHULZ, ESQ. 15 SAN JOAQUIN RIVER EXCHANGE CONTRACTORS: 16 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON: 17 P.O. Box 1679 Oroville, California 95965 18 BY: MICHAEL V. SEXTON, ESQ. 19 SAN JOAQUIN COUNTY: 20 NEUMILLER & BEARDSLEE P.O. Box 20 21 Stockton, California 95203 BY: THOMAS J. SHEPHARD, SR., ESQ. 22 CITY OF STOCKTON: 23 DE CUIR & SOMACH 24 400 Capitol Mall, Suite 1900 Sacramento, California 95814 25 BY: PAUL S. SIMMONS, ESQ. CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 ORLAND UNIT WATER USERS' ASSOCIATION: 3 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 4 Oroville, California 95965 BY: M. ANTHONY SOARES, ESQ. 5 GLENN-COLUSA IRRIGATION DISTRICT: 6 DE CUIR & SOMACH 7 400 Capitol Mall, Suite 1900 Sacramento, California 95814 8 BY: STUART L. SOMACH, ESQ. 9 NORTH SAN JOAQUIN WATER CONSERVATION DISTRICT: 10 JAMES F. SORENSEN CONSULTING CIVIL ENGINEER, INC. 209 South Locust Street 11 Visalia, California 93279 BY: JAMES F. SORENSEN 12 PARADISE IRRIGATION DISTRICT: 13 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 14 P.O. Box 1679 Oroville, California 95695 15 BY: WILLIAM H. SPRUANCE, ESQ. 16 COUNTY OF COLUSA: 17 DONALD F. STANTON, ESQ. 1213 Market Street 18 Colusa, California 95932 19 COUNTY OF TRINITY: 20 COUNTY OF TRINITY - NATURAL RESOURCES P.O. Box 156 21 Hayfork, California 96041 BY: TOM STOKELY 22 CITY OF REDDING: 23 JEFFERY J. SWANSON, ESQ. 24 2515 Park Marina Drive, Suite 102 Redding, California 96001 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 TULARE IRRIGATION DISTRICT: 3 TEHAMA COUNTY RESOURCE CONSERVATION DISTRICT 2 Sutter Street, Suite D 4 Red Bluff, California 96080 BY: ERNEST E. WHITE 5 STATE WATER CONTRACTORS: 6 BEST BEST & KREIGER 7 P.O. Box 1028 Riverside, California 92502 8 BY: ERIC GARNER, ESQ. 9 COUNTY OF TEHAMA, et al.: 10 COUNTY OF TEHAMA BOARD OF SUPERVISORS: P.O. Box 250 11 Red Bluff, California 96080 BY: CHARLES H. WILLARD 12 MOUNTAIN COUNTIES WATER RESOURCES ASSOCIATION: 13 CHRISTOPHER D. WILLIAMS 14 P.O. Box 667 San Andreas, California 95249 15 JACKSON VALLEY IRRIGATION DISTRICT: 16 HENRY WILLY 17 6755 Lake Amador Drive Ione, California 95640 18 SOLANO COUNTY WATER AGENCY, et al.: 19 HERUM, CRABTREE, DYER, ZOLEZZI & TERPSTRA 20 2291 West March Lane, S.B.100 Stockton, California 95207 21 BY: JEANNE M. ZOLEZZI, ESQ. 22 ---oOo--- 23 24 25 CAPITOL REPORTERS (916) 923-5447 1 INDEX 2 PAGE 3 RESUMPTION OF HEARING: 10188 4 AFTERNOON SESSION: 10285 5 6 REBUTTAL DIRECT EXAMINATION: 7 TOM BOARDMAN BY MR. BIRMINGHAM 10189 8 REBUTTAL CROSS-EXAMINATION: BY MR. NOMELLINI 10211 9 BY MR. HERRICK 10216 BY STAFF 10240 10 BY BOARD MEMBERS 10242 REDIRECT EXAMINATION: 11 BY MR. BIRMINGHAM 10251 RECROSS-EXAMINATION: 12 BY MR. HERRICK 10270 BY MR. O'LAUGHLIN 10285 13 BY MR. NOMELLINI 10289 BY BOARD MEMBERS 10295 14 REBUTTAL DIRECT EXAMINATION: 15 PEGGY MANZA 16 BY MR. BRANDT 10302 CROSS-EXAMINATION: 17 BY MR. BIRMINGHAM 10319 BY MR. NOMELLINI 10338 18 BY MR. HERRICK 10349 19 ---oOo--- 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 1 SACRAMENTO, CALIFORNIA 2 WEDNESDAY, FEBRUARY 17, 1999 3 ---oOo--- 4 C.O. STUBCHAER: Good morning. Call the meeting to 5 order. 6 Welcome to the continuation of the Bay-Delta Water 7 Rights hearing. According to my notes, we are going to 8 continue with the second DOI witness, and you were going to 9 talk about some possible alternative order, Mr. Godwin or 10 Mr. Brandt. 11 MR. GODWIN: Yes. We would like to -- actually, San 12 Luis Delta-Mendota Water Authority would like to go first 13 this morning. They have a scheduled conflict with their 14 witness. 15 C.O. STUBCHAER: Did you say Delta -- which water? 16 MR. GODWIN: San Luis Delta-Mendota. 17 Yes, Mr. Birmingham, or is it listed as -- 18 C.O. STUBCHAER: It is listed as Westlands, part of my 19 confusion. 20 MR. GODWIN: I'm sorry. I thought it was San Luis. 21 It's hard to tell sometime. 22 After the Westlands witness, then Interior has a 23 witness they would like to put, and then, time permitting, 24 River Group has a witness also. 25 C.O. STUBCHAER: Thank you, Mr. Godwin. CAPITOL REPORTERS (916) 923-5447 10188 1 Mr. Birmingham. 2 ---oOo--- 3 DIRECT EXAMINATION OF WESTLANDS WATER DISTRICT AND 4 SAN LUIS AND DELTA-MENDOTA WATER AUTHORITY REBUTTAL 5 BY MR. BIRMINGHAM 6 MR. BIRMINGHAM: Westlands Water District and San Luis 7 Delta-Mendota Authority would like to call in rebuttal Mr. 8 Tom Boardman. Mr. Boardman, I believe, previously has been 9 sworn. 10 C.O. STUBCHAER: Good morning, Mr. Boardman. 11 MR. BOARDMAN: Morning. 12 MR. BIRMINGHAM: Mr. Boardman, you have previously 13 testified in these proceedings? 14 MR. BOARDMAN: Yes. 15 MR. BIRMINGHAM: Would you briefly describe your 16 professional qualifications. 17 MR. BOARDMAN: I am a registered engineer, registered 18 civil engineer, working with the San Luis Delta-Mendota 19 Water Authority for the last two years. Been involved with 20 Bay-Delta modeling for the last eight years. 21 MR. BIRMINGHAM: Mr. Boardman, are you familiar with 22 the recirculation proposal being advocated by the South 23 Delta Water Agency? 24 MR. BOARDMAN: Yes. 25 MR. BIRMINGHAM: Have you attended meetings on behalf CAPITOL REPORTERS (916) 923-5447 10189 1 of San Luis Delta-Mendota Water Authority at which the 2 recirculation plan was the subject of discussion? 3 MR. BOARDMAN: That's correct. 4 MR. BIRMINGHAM: Over what period of time have you 5 attended meetings on behalf of the authority at which the 6 recirculation plan was the subject of discussion? 7 MR. BOARDMAN: I would say the meetings started back in 8 '96. 9 MR. BIRMINGHAM: Approximately how many meetings have 10 you attended at which the recirculation plan was being 11 discussed? 12 MR. BOARDMAN: I guess it would be about eight. 13 MR. BIRMINGHAM: You discussed the proposal with Mr. 14 Hildebrand? 15 MR. BOARDMAN: Yes. 16 MR. BIRMINGHAM: Have you reviewed the analysis of the 17 recirculation plan that is contained in the Environmental 18 Impact Report? 19 MR. BOARDMAN: Yes. 20 MR. BIRMINGHAM: Are you familiar with South Delta 21 Water Agency Exhibit 12, which is a document entitled "SJRIO 22 Studies of San Joaquin River Recirculation and Reoperation 23 of the Wetland Discharge and Tile Drainage, January 1998"? 24 MR. BOARDMAN: Yes, I am somewhat familiar with the 25 recirculation aspect of that. CAPITOL REPORTERS (916) 923-5447 10190 1 MR. BIRMINGHAM: Mr. Boardman, what is the position of 2 the San Luis Delta-Mendota Water Authority concerning the 3 recirculation plan advocated by South Delta Water Agency? 4 MR. BOARDMAN: The San Luis Delta-Mendota Water 5 Authority does not object to that recirculation plan so long 6 as there is not an impact to ag service allocation south of 7 the Delta. 8 MR. BIRMINGHAM: When you say "so long as there is not 9 an impact to ag service allocation south of the Delta," do 10 you mean that the recirculation plan is being implemented in 11 a way that results in no net loss to agricultural 12 contractors who rely on service from the DMC or the San Luis 13 Canal? 14 MR. BOARDMAN: That's correct. 15 MR. BIRMINGHAM: Mr. Boardman, do you have an opinion 16 concerning whether the recirculation plan can be implemented 17 in a manner that will not result in impacts on ag 18 contractors south of the Delta? 19 MR. BOARDMAN: The only way that could have a no-net 20 impact on exports would be that the plan would have to be 21 implemented and the recirculation would have to take the 22 place over and above the exports that would be normally 23 taking place under the existing restrictions, whether it be 24 the VAMP, Bay-Delta Accord or the Smelt Biological Opinion. 25 MR. BIRMINGHAM: I would like to explore that further, CAPITOL REPORTERS (916) 923-5447 10191 1 if we can. Generally, during the April 15th to May 15th 2 period, are exports from the Tracy Pumping Plant being 3 rediverted to storage from the San Luis Reservoir? 4 MR. BOARDMAN: Normally not. Basically, by April the 5 demands south of the Delta are high enough where Tracy 6 pumping capacity is struggling to keep up with the level of 7 demands. Oftentimes beginning in April we are seeing the 8 drawdown of San Luis for that year. Therefore, all exports 9 are going to meet the demand. 10 MR. BIRMINGHAM: Is it your understanding that the 11 recirculation plan being proposed by South Delta Water 12 Agency would be used to meet the pulse flow requirements in 13 the 1995 Water Quality Control Plan? 14 MR. BOARDMAN: That is correct. 15 MR. BIRMINGHAM: What is the period of the pulse flow 16 requirements contained in the 1995 Water Quality Control 17 Plan? 18 MR. BOARDMAN: April 15th through May 15th. 19 MR. BIRMINGHAM: Generally, Mr. Boardman, what are the 20 pumping or export restrictions imposed by the Water Quality 21 Control Plan for the period April 15th through May 15th? 22 MR. BOARDMAN: The Accord basically spells out that the 23 exports be limited to a minimum of 1,500 cfs or a maximum of 24 the three-day running average at Vernalis. 25 MR. BIRMINGHAM: Mr. Boardman, I am showing to you the CAPITOL REPORTERS (916) 923-5447 10192 1 1995 Water Quality Control Plan for the San Francisco 2 Bay/Sacramento-San Joaquin Estuary, in particular Page 19 3 from that plan. The restrictions which you just articulated 4 from the Bay-Delta Accord were incorporated into the plan; 5 is that correct? 6 MR. BOARDMAN: That's correct. 7 MR. BIRMINGHAM: In response to an earlier question you 8 mentioned pumping restrictions contained in the Delta Smelt 9 Biological Opinion. What are the pumping restrictions that 10 are contained in the Delta Smelt Biological Opinion. 11 MR. BOARDMAN: As I understand it, the biological 12 opinion limits exports, let me say, whatever exports are at, 13 the biological opinion requires that the Vernalis flow be 50 14 percent above that amount. Some of the operators interpret 15 that to be a two-to-one ratio. 16 MR. BIRMINGHAM: When you say "some of the operators," 17 do you mean operators of the Central Valley Project? 18 MR. BOARDMAN: That's correct. 19 C.O. BROWN: Mr. Chairman. 20 C.O. STUBCHAER: Mr. Brown. 21 C.O. BROWN: Could you clarify "two-to-one"? 22 MR. BOARDMAN: Two to one basically whatever the 23 exports -- whatever the projects are exporting, the Vernalis 24 flow would have to be twice that amount. 25 MR. BIRMINGHAM: If the combined exports are 1,500 cfs, CAPITOL REPORTERS (916) 923-5447 10193 1 then the flow at Vernalis would have to be 3,000 cfs? 2 MR. BOARDMAN: As I understand it, that is correct. 3 MR. BIRMINGHAM: You also mentioned in response to an 4 earlier answer, restrictions on exports that are proposed by 5 the Vernalis Adaptive Management Plan. What are the 6 restrictions on exports proposed by the Vernalis Adaptive 7 Management Plan, Mr. Boardman? 8 MR. BOARDMAN: Again, I am not a VAMP expert, but the 9 flows outlined in VAMP basically range export -- allowable 10 exports under VAMP range from 1,500 up to 3,000. And more 11 specifically, 1,500, 2250 or 3,000 cfs, and each one of 12 those particular export levels and the target Vernalis flow 13 would be at some range anywhere from 2,000 to 7,000 cfs. 14 MR. BIRMINGHAM: You are taking that information or 15 basing your answer from information contained on Page 8 of 16 the San Joaquin River Agreement which is attached to San 17 Joaquin River Group Authority Exhibit 2? 18 MR. BOARDMAN: That is correct. 19 MR. BIRMINGHAM: In response to my earlier question you 20 said that the only way the recirculation plan could be 21 implemented in a no-net loss manner would be if the pumping 22 for recirculation were above the limits imposed by -- limits 23 on exports imposed by the 1995 Water Quality Control Plan, 24 the biological opinions or the Vernalis Adaptive Management 25 Plan? CAPITOL REPORTERS (916) 923-5447 10194 1 MR. BOARDMAN: That's correct. 2 MR. BIRMINGHAM: Could you explain that further, 3 please, Mr. Boardman. 4 MR. BOARDMAN: The exports -- the projects try to 5 maximize their exports with whatever restrictions they are 6 working under. So, therefore, whatever those -- whatever 7 restriction you choose, whether it been VAMP, Smelt BO or 8 the Accord, we are going to be likely pumping at the 9 maximized amount allowable under that restriction. So, any 10 available excess capacity that might excess over and above 11 that base exporting, you might say, would be the available 12 capacity for recirculation. But again I stress it would 13 have to be an available excess capacity by the Tracy Pumping 14 Plant to have anything available for recirculation. 15 MR. BIRMINGHAM: When you say "excess capacity," what 16 do you mean? 17 MR. BOARDMAN: Capacity at Tracy Pumping Plant that is 18 not being used for the base exports. For example, during 19 April, Tracy export capacity is typically around 4,200 cfs. 20 If we are pumping 2,000 cfs, there might be 2,200 cfs of 21 available capacity. 22 C.O. BROWN: Mr. Chairman. 23 C.O. STUBCHAER: Mr. Brown. 24 C.O. BROWN: It would be helpful if you would, as you 25 are going through this analysis, if you would also include CAPITOL REPORTERS (916) 923-5447 10195 1 the considerations that were made at the time in addition to 2 the DMC or the California Aqueduct, state partial pumping or 3 what restrictions might be laid upon them similar as to the 4 DMC, recognizing that the DMC runs at capacity most of the 5 time. State doesn't always. I am sure your discussions 6 brought that in. It would be helpful if you would somehow 7 or another work that into your analysis here. 8 MR. BOARDMAN: Okay. 9 C.O. BROWN: Thank you, Mr. Chairman. 10 C.O. STUBCHAER: You're welcome. 11 MR. BIRMINGHAM: Mr. Boardman, is it your understanding 12 that the limitations on exports that we have been discussing 13 that are applied during the April 15th through May 15th 14 period are limitations on the combined exports from the 15 Delta? 16 MR. BOARDMAN: That is correct. 17 MR. BIRMINGHAM: By combined exports from the Delta 18 what do we mean? 19 MR. BOARDMAN: Combined exports would be Banks and 20 Tracy combined. 21 MR. BIRMINGHAM: Banks is the pumping plant for the 22 Central Valley Project? 23 MR. BOARDMAN: That is correct. 24 MR. BIRMINGHAM: What you do mean by the Banks pump? 25 MR. BOARDMAN: Banks Pumping Plant would be the CAPITOL REPORTERS (916) 923-5447 10196 1 state-run facility, pumping from South Delta. 2 MR. BIRMINGHAM: Let's make that a hypothetical, if we 3 can. Let's assume we are in a period during the April 15th 4 through May 15th period when flows at Vernalis are 2,000 5 cfs, base flows at Vernalis at 2,000 cfs. During this 6 period what would be the maximum export allowed by, combined 7 export, for Tracy and Banks? 8 MR. BOARDMAN: 2,000 cfs. 9 C.O. BROWN: I thought you said it was two-to-one? 10 MR. BOARDMAN: That is in the Smelt Biological Opinion. 11 This would be under the Bay-Delta Accord. 12 MR. BIRMINGHAM: During this period -- 13 C.O. STUBCHAER: Excuse me, Mr. Birmingham, Ms. 14 Forster has a question. 15 MEMBER FORSTER: How do you put those together? You 16 said -- how do you put the two-to-one and then the Accord, 17 how do you put them together in your mind to understand 18 them? 19 MR. BOARDMAN: As I understand it, we don't operate 20 under the Smelt Biological Opinion. That opinion came about 21 prior to the Bay-Delta Accord. When the Bay-Delta Accord 22 came into existence, that is what the projects operated to. 23 MEMBER FORSTER: Okay. Thank you. 24 MR. BIRMINGHAM: So, in this circumstance where the 25 maximum export is 2,000 cfs, under the limitations imposed CAPITOL REPORTERS (916) 923-5447 10197 1 by the 1995 Water Quality Control Plan, Mr. Boardman, what 2 would be available excess capacity for recirculation at 3 Banks or the Tracy Pumping Plant? 4 MR. BOARDMAN: Well, if we assume that the 2,000 cfs 5 was split 50/50 between the two pumping plants, each 6 pumping plant would be pumping a thousand cfs, that time of 7 year, Banks pumping capacity, excess pumping capacity, would 8 be somewhere around, say, 5,600 cfs. I am assuming 5,600 9 cfs is what they could pump. So, if they are already taking 10 up a thousand, there is available capacity at Banks of 5,600 11 cfs and at Tracy roughly 3,200 cfs excess capacity. 12 MR. BIRMINGHAM: How much of that excess capacity could 13 be used to recirculate water in a manner consistent with the 14 existing limitations imposed by the 1995 Water Quality 15 Control Plan? 16 MR. BOARDMAN: Could you repeat that question? 17 MR. BIRMINGHAM: Yes. You said that if Tracy is 18 pumping a thousand cfs and Banks is pumping a thousand cfs, 19 that excess capacity at Tracy would be 3,200 hundred cfs and 20 excess capacity at Banks would be 5,600 cfs. Is that right? 21 MR. BOARDMAN: That's correct. 22 MR. BIRMINGHAM: In a manner consistent with the 23 existing limitations -- let me ask another question. 24 You're talking about the physical capacity of those two 25 pumping plants; is that correct, Mr. Boardman? CAPITOL REPORTERS (916) 923-5447 10198 1 MR. BOARDMAN: That's correct. 2 MR. BIRMINGHAM: In a manner consistent with the 3 limitations imposed by the existing 1995 Water Quality 4 Control Plan, how much of that excess capacity could be used 5 for recirculation? 6 MR. BOARDMAN: For pumping 2,000 cfs and Vernalis flow 7 is running at 2,000, which we have maximized the restriction 8 allowed in the Bay-Delta Accord, there would be zero 9 capacity, zero additional capacity, available at either 10 plant for recirculation. 11 MR. BIRMINGHAM: You testified that during the April 12 15th through May 15th period generally the thousand cfs 13 which is being pumped at Tracy is being used to meet 14 existing demand along the DMC? 15 MR. BOARDMAN: That is correct. 16 MR. BIRMINGHAM: So if a portion of the thousand cfs 17 being pumped at Tracy was rediverted for recirculation for 18 the San Joaquin River, that would result in a reduction in 19 deliveries to the agricultural contractors along the DMC? 20 MR. BOARDMAN: That is correct. 21 MR. BIRMINGHAM: The only way that you could implement 22 the recirculation plan without reducing the deliveries to 23 contractors along the DMC would be by increasing the 24 permitted or permissible level of exports at Tracy? 25 MR. BOARDMAN: Correct. CAPITOL REPORTERS (916) 923-5447 10199 1 C.O. BROWN: Clarification, Mr. Chairman. 2 C.O. STUBCHAER: Mr. Brown. 3 C.O. BROWN: Is that the only way? 4 MR. BOARDMAN: The only way for pumping to take place? 5 C.O. BROWN: No. Ask the question again, Mr. 6 Birmingham. 7 C.O. STUBCHAER: And if I could chime in. If you 8 would add Banks to Tracy, that might address the situation. 9 MR. BIRMINGHAM: If we -- Mr. Boardman, if we are going 10 to use excess capacity in the hypothetical situation that we 11 are talking about where flow at Vernalis is 2,000 cfs and 12 pumping, the combined pumping at Banks and Tracy is 2,000 13 cfs, in a manner that will not result in reduced water 14 deliveries to contractors, it would be necessary to increase 15 the permissible level of exports above 2,000 cfs? 16 MR. BOARDMAN: That is correct. 17 MR. BIRMINGHAM: I think Mr. Brown's question is, is 18 there any other way in which you could implement the 19 recirculation plan in a manner that would not result in 20 reduced water deliveries to contractors? 21 C.O. BROWN: That is exactly right, Mr. Birmingham. 22 MR. BOARDMAN: Not to my knowledge. You've got -- if 23 you pump any more out the Tracy or Banks, you're going to 24 exceed the limitations put on by the Accord. If you pull 25 water out of San Luis and not pump that water, that water is CAPITOL REPORTERS (916) 923-5447 10200 1 coming out of storage, allocated storage that is set aside 2 to meet the allocation for the coming year. So unless there 3 is a source other than what I am thinking, there isn't a way 4 to implement recirculation without impacting water supply. 5 C.O. BROWN: Storage can be made up? 6 MR. BOARDMAN: If the storage can be made up prior to 7 the end of August -- and I am assuming when we are talking 8 about storage made up, it would have to be made up likely 9 through Banks Pumping Plant, that water would be CVP water 10 in the Delta. During the April and May period, CVP may be 11 making releases for flood control, whatever, at a time when 12 pumping capacity is available to make up that storage lost. 13 It may come at a time when Banks doesn't have the capacity 14 or CVP doesn't have the water to release upstream to pump. 15 C.O. BROWN: The key word is "may." 16 MR. BIRMINGHAM: Is it correct, Mr. Boardman, that in 17 response to Board Member Brown's questions that it may -- in 18 some circumstances it may be possible to make up those 19 releases from storage? 20 MR. BOARDMAN: That is a fair statement. 21 MR. BIRMINGHAM: Let's explore that a little further, 22 if we can. 23 Under Water Rights Decision 95-6, there are 24 circumstances in which reductions in exports can be made up 25 if the reduction in exports was implemented to benefit fish; CAPITOL REPORTERS (916) 923-5447 10201 1 is that correct? 2 MR. BOARDMAN: That is correct. 3 MR. BIRMINGHAM: Presently the Department of the 4 Interior is implementing measures intended to improve 5 fisheries in the Delta and tributaries to the Delta; is that 6 correct? 7 MR. BOARDMAN: That's correct. 8 MR. BIRMINGHAM: Generally those measure are part of 9 what is known as the Anadromous Fish Recovery Program? 10 MR. BOARDMAN: Restoration. 11 MR. BIRMINGHAM: The AFRP, thank you. 12 In order to implement some of those AFRP measures, the 13 Department of the Interior plans on using capacity at 14 different times to make up lost water resulting from the 15 implementation of the AFRP; is that correct? 16 MR. BOARDMAN: That is correct. 17 MR. BIRMINGHAM: My question is this, Mr. Boardman: 18 How much flexibility is there within existing limitations to 19 operate the projects to make up reduced pumping? 20 MR. BOARDMAN: It's severely limited, I think, 21 primarily between April and August. Whatever comes out of 22 the reservoir or wherever an impact occurs, whether it be 23 through diverted pumping in April or May or diverted storage 24 for recirculation in April or May, in order for that not to 25 have an impact on that year's allocation for CVP, that water CAPITOL REPORTERS (916) 923-5447 10202 1 has to be made up, has to be replaced, prior to the end of 2 August. 3 So, basically, you are looking at what the 4 restrictions are in place under AFRP. When I am referring 5 to that, I am referring to ramping, the export ramping that 6 is required the latter half of May. That realistically you 7 get into June, July and August, are the only three months 8 when you can move water south of the Delta replacing any 9 kind of storage diversion. You have three months to replace 10 that water, and you're competing with capacity that the 11 State has earmarked for their supply, for their allocation, 12 and then you are also -- it's kind of a minefield -- you are 13 also having to comply with some of the existing requirements 14 in the Bay-Delta Accord, like June's 35 percent export 15 inflow ratio. 16 So, occasionally, or I should say a lot of times, is 17 limited to makeup of that water in June. So now you are 18 looking at July and August, maybe two months, with maybe 19 some hopes of making up that water in June. The window of 20 opportunity to make up any kind of storage diversion is 21 limited without -- in order to avoid an impact on 22 allocation. 23 C.O. BROWN: Clarification, Mr. Chairman. 24 C.O. STUBCHAER: Mr. Brown. 25 C.O. BROWN: You tell me that if you start out with a CAPITOL REPORTERS (916) 923-5447 10203 1 full reservoir, you have to make that up by August. 2 Did I hear you say that? 3 MR. BOARDMAN: That is correct. Because our water 4 supply with full reservoir and pumping, Tracy pumping, at 5 maximum, again focused on Tracy here, with Tracy Pumping 6 Plant pumping at maximum, assuming there is no restriction 7 for the EIR or anything else during the April through August 8 window, the best we can do is about 75 percent of our 9 allocation. Because of the restrictions with the Accord and 10 AFRP and so forth, that we are looking at, the only way we 11 can get above the 75 percent is if we do flood releases out 12 of Friant. Those flood releases come down the San Joaquin 13 and offset the exchange contractor's demand that exist in 14 the Mendota Pool. That is the only way we can get above a 15 75 percent supply. 16 C.O. STUBCHAER: Ms. Forster. 17 MEMBER FORSTER: Are those -- you say the opportunities 18 are in June, July and August. What are the months that are 19 most beneficial for recirculation? 20 MR. BOARDMAN: From the reports that I have read, South 21 Delta Water Agency, they are looking to supplement or 22 conserve water on the San Joaquin side and perform the 23 recirculation during the pulse flow period, April 15th 24 through May 15th. That 30-day period, to my knowledge, is 25 where their recirculation plan is focused. CAPITOL REPORTERS (916) 923-5447 10204 1 MR. BIRMINGHAM: In response to questions by Board 2 Member Brown you've indicated that if water is released from 3 storage at the San Luis Reservoir -- let me restate the 4 question. 5 If water is released from storage at San Luis Reservoir 6 in order to implement the recirculation plan, that release 7 would have to be made up during the months of June, July or 8 August? 9 MR. BOARDMAN: That is correct. 10 MR. BIRMINGHAM: Am I correct, Mr. Boardman, from your 11 earlier answers that the window of opportunity to make up 12 that water is being used to make up water foregone under 13 other environmental measures? 14 MR. BOARDMAN: That's correct. 15 MR. BIRMINGHAM: Those other environmental measures are 16 AFRP and -- 17 C.O. STUBCHAER: Audible response, please. 18 MR. BOARDMAN: That's correct. 19 MR. BIRMINGHAM: -- and reductions in exports that 20 result from take limits? 21 MR. BOARDMAN: Very possible. 22 MR. BIRMINGHAM: Are there other situations in which 23 the projects forego in anticipation of making up this water 24 during later parts of the year? 25 MR. BOARDMAN: None occur to me at this moment. CAPITOL REPORTERS (916) 923-5447 10205 1 MR. BIRMINGHAM: If we were to implement the 2 recirculation plan through releases of water from San Luis 3 Reservoir, that would be the third circumstance in which we 4 would have to use this narrow window of opportunity to make 5 up water? 6 MR. BOARDMAN: That's correct. 7 MR. BIRMINGHAM: Mr. Boardman, I would like to show to 8 you Table V-1 and V-2 from the Volume IV revised Chapters 5, 9 6 and 8 of the Draft Environmental Impact Report for 10 implementation of the 1995 Bay-Delta Water Quality Control 11 Plan. 12 MR. O'LAUGHLIN: Which ones were those again, Tom? 13 MR. BIRMINGHAM: V-1 and V-2. 14 Mr. Boardman, looking at Table V-1 under Alternative 6, 15 is it your understanding that Alternative 6 is the 16 recirculation plan? 17 MR. BOARDMAN: That's correct. 18 MR. BIRMINGHAM: In Table V-1 does the Draft 19 Environmental Impact Report anticipate that implementation 20 of Alternative 6 would result in reduced deliveries to 21 contractors along the Delta-Mendota Canal? 22 MR. BOARDMAN: Yes. 23 MR. BIRMINGHAM: What are those reduced deliveries? 24 MR. BOARDMAN: Says here other CVP and DMC ag 25 diversions, 25,000 reduction. CAPITOL REPORTERS (916) 923-5447 10206 1 MR. BIRMINGHAM: In Table V-1, does it indicate that 2 there would be reduced deliveries to the exchange 3 contractors resulting from implementation of the 4 recirculation plan? 5 MR. BOARDMAN: It does indicate that. 6 MR. BIRMINGHAM: What are those reduced deliveries? 7 MR. BOARDMAN: Exchange contractors' reduction is 8 21,000. 9 MR. BIRMINGHAM: Does Table V-1 show that there would 10 be reduced deliveries to contractors in the San Luis unit? 11 MR. BOARDMAN: Yes. That total is 55,000. 12 MR. BIRMINGHAM: I would like to focus for a moment, if 13 we can, Mr. Boardman, on the exchange contractors. 14 Are you familiar with how the Department of the 15 Interior allocates water to the exchange contractors? 16 MR. BOARDMAN: Yes. 17 MR. BIRMINGHAM: Is it correct that the exchange 18 contractors' contract provides for reduced deliveries to the 19 exchange contractors in very limited circumstances? 20 MR. BOARDMAN: That's correct. 21 MR. BIRMINGHAM: What are the circumstances in which 22 the Department of the Interior can limit or reduce 23 deliveries to the exchange contractors? 24 MR. BOARDMAN: The exchange contractors can incur a 25 maximum of 25 percent deficiency. That is triggered upon CAPITOL REPORTERS (916) 923-5447 10207 1 the Shasta inflow of less than 4.0 million. Whenever that 2 occurs, then their allocation is dropped to 75 percent 3 supply. That's only occurred in, I think, eight years out 4 of the last 70. 5 MR. BIRMINGHAM: In circumstances in which Shasta 6 inflow is greater than 4.1 million acre-feet, the Department 7 of the Interior is obligated to make a full allocation to 8 the exchange contractors? 9 MR. BOARDMAN: That's correct. 10 MR. BIRMINGHAM: So turning back to Table V-1 in the 11 Draft Environmental Impact Report revised chapters, when the 12 Draft EIR anticipates there would be reduced deliveries of 13 25,000 acre-feet to the exchange contractors, that reduction 14 in deliveries would be inconsistent with the Department of 15 the Interior's contractual obligation to the exchange 16 contractors; is that correct? 17 MR. BOARDMAN: That's correct. 18 MR. BIRMINGHAM: And the 21,000 acre-feet in reduced 19 deliveries anticipated to the exchange contractors would, in 20 fact, have to be allocated among DMC contractors and 21 contractors in the San Luis unit; is that correct? 22 MR. BOARDMAN: Yes. 23 MR. BIRMINGHAM: So, in fact, the deliveries to DMC 24 contractors and San Luis unit contractors would be greater 25 than 25,000 acre-feet and 55,000 acre-feet respectively; is CAPITOL REPORTERS (916) 923-5447 10208 1 that correct? 2 MR. BOARDMAN: That's correct. 3 MR. BIRMINGHAM: Mr. Boardman, do you have a copy of 4 South Delta Water Agency Exhibit 51, which is Mr. 5 Hildebrand's testimony for Phase II-A? 6 MR. BOARDMAN: What was the number on that again? 7 MR. BIRMINGHAM: 51. 8 I would ask you to turn to Page 9 of South Delta Water 9 Agency Exhibit 51. And near the top of South Delta Water 10 Agency Exhibit 51 there is statement that if the Bureau 11 cannot budget sufficient amounts for water quality, then the 12 Board should require automatic decreases in exports. 13 Do you see that statement, Mr. Boardman? 14 MR. BOARDMAN: Yes. 15 MR. BIRMINGHAM: I am going to ask you to assume that 16 there is no direct relationship between levels of exports 17 and water quality at Vernalis. In other words, if exports 18 at Vernalis are reduced, there would not be a corresponding 19 improvement at Vernalis? 20 C.O. STUBCHAER: Exports at Vernalis, Mr. Birmingham. 21 MR. BIRMINGHAM: Exports at -- let me restate the 22 question, or the assumption. 23 I am going to ask you to assume, Mr. Boardman, there is 24 no direct instantaneous relationship between the level of 25 exports from the Delta and water quality at Vernalis. In CAPITOL REPORTERS (916) 923-5447 10209 1 other words, if exports are reduced, there will not be a 2 simultaneous improvement in water quality at Vernalis. 3 Do you understand that assumption? 4 MR. BOARDMAN: Yes. 5 MR. BIRMINGHAM: If the Board were to require automatic 6 decreases in exports in circumstances where water quality 7 standards at Vernalis were not being met, do you have an 8 opinion as to whether or not that might result in the waste 9 of water? 10 MR. BOARDMAN: I would assume that it would be a waste 11 of water based on the assumption of the water quality or 12 lack of water quality relationship of exports. 13 MR. BIRMINGHAM: What is the basis of your answer? 14 MR. BOARDMAN: Well, if you assume that by reducing 15 exports you cannot improve water quality at Vernalis, and 16 you still go forward and reduce exports, then the projects 17 aren't able to pick up that amount of water and you increase 18 Delta outflow over and above what is maybe controlling at 19 the time and, therefore, you're foregoing exports, exports 20 that could be going to beneficial use out of the Delta 21 instead is going out to the ocean. 22 MR. BIRMINGHAM: I have no further questions. 23 C.O. STUBCHAER: Thank you, Mr. Birmingham. 24 Who wishes to cross-examine Mr. Boardman? 25 Mr. Herrick and Mr. Nomellini. CAPITOL REPORTERS (916) 923-5447 10210 1 Anyone else? 2 Mr. Nomellini is heads. It's heads. 3 C.O. STUBCHAER: Morning, Mr. Nomellini. 4 MR. NOMELLINI: I wish I was gambling for money. I 5 seem to win periodically at this toss. 6 C.O. STUBCHAER: It was George Washington who was up, 7 so you must be an honest attorney. 8 ---oOo--- 9 CROSS-EXAMINATION OF WESTLANDS WATER DISTRICT AND 10 SAN LUIS AND DELTA-MENDOTA WATER AUTHORITY REBUTTAL 11 BY CENTRAL DELTA PARTIES 12 BY MR. NOMELLINI 13 MR. NOMELLINI: Mr. Chairman, Members of the Board, 14 Dante John Nomellini for Central Delta Parties. 15 Mr. Boardman, starting with the last first, do you 16 believe that water right holders should comply with the 17 terms of their permits? 18 MR. BOARDMAN: Yes. 19 MR. BIRMINGHAM: Objection. Beyond the scope of 20 direct. 21 C.O. STUBCHAER: I am going to allow the question to 22 be answered. 23 MR. NOMELLINI: Do you also believe -- 24 UNIDENTIFIED VOICE: The answer came about the same 25 time as the objection. CAPITOL REPORTERS (916) 923-5447 10211 1 C.O. STUBCHAER: You mooted the objection. 2 MR. NOMELLINI: There was an answer. 3 C.O. STUBCHAER: I heard there was an answer. I didn't 4 hear it, but I was told there was an answer. 5 MR. NOMELLINI: It was yes. 6 Is that correct, Mr. Boardman? 7 MR. BOARDMAN: Yes. 8 MR. NOMELLINI: If a condition to a permit was not 9 complied with, then the permit to go forward with diversion 10 or action would then not be allowed, would it? 11 MR. O'LAUGHLIN: Objection. Calls for legal 12 conclusion, and beyond the scope of the rebuttal. 13 C.O. STUBCHAER: Let's say answer to the best of your 14 ability. If you don't know, say so. 15 MR. BOARDMAN: Sounds like it should be right. 16 MR. NOMELLINI: We're off to a good start. Let's go 17 back to the term "no-net loss." 18 Do you understand that the term "no-net loss" as not 19 being applied to sales of water between willing buyers and 20 willing sellers? 21 MR. BOARDMAN: Yes. 22 MR. NOMELLINI: So it is quite clear, when you use the 23 term "no-net loss" you are excepting from that category the 24 availability of water due to a purchase between a willing 25 buyer and a willing seller? CAPITOL REPORTERS (916) 923-5447 10212 1 MR. BOARDMAN: That's correct. 2 MR. NOMELLINI: In the examination by Mr. Birmingham, 3 he had you testify about water reductions to the exchange 4 contractors as reflected in the Draft EIR, Volume IV, 5 Alternative 6, Recirculation Analysis. 6 Do you recall those questions? 7 MR. BOARDMAN: Yes. 8 MR. NOMELLINI: Now, if the 21,000 acre-feet from the 9 exchange contractors was provided pursuant to a purchase 10 agreement between the willing seller and willing buyer, then 11 that wouldn't constitute a net loss as you have used the 12 term; is that correct? 13 MR. BOARDMAN: That's correct. 14 MR. NOMELLINI: Do you know whether or not the exchange 15 contractors have been willing to sell water? 16 MR. BOARDMAN: They have. 17 MR. NOMELLINI: In fact, they are one of the sellers of 18 water in the San Joaquin River Agreement, are they not? 19 MR. BOARDMAN: That's correct. 20 MR. NOMELLINI: Now, in terms of the pumping capacity 21 for recirculation, you testified at one point that the 22 export pumping limitations were related to the biological 23 opinion. I believe it was for Delta smelt; and at another 24 point you testified that the Delta Accord superseded the 25 biological opinion and would allow for export pumping at the CAPITOL REPORTERS (916) 923-5447 10213 1 level of flow in the San Joaquin River. 2 Do you recall that testimony? 3 MR. BOARDMAN: Yes, I do. 4 MR. NOMELLINI: As we operate the projects today, is it 5 your testimony that the export pumping could be at a rate 6 equal to the flow of the San Joaquin River at Vernalis 7 during the pulse flow period? 8 MR. BOARDMAN: Yes. 9 MR. NOMELLINI: Then it is your testimony that this 10 biological opinion, which would have reduced this to 11 one-half, is not applicable; is that your testimony? 12 MR. BOARDMAN: That's my understanding, yes. 13 MR. NOMELLINI: If the biological opinion was 14 applicable and the pumps, export pumps, were restricted to 15 pumping at one-half the flow at Vernalis, then there would 16 be room for increasing export assuming the fishery agencies 17 were in Accord to allow for recirculation. Would this be 18 correct? 19 MR. BOARDMAN: If that was the controlling standard, I 20 would agree with that. 21 MR. NOMELLINI: With regard to releases from San Luis 22 as part of a recirculation effort, you indicated that it 23 would be difficult in many cases to make up for that release 24 of water due to the restrictions on export pumping. Do you 25 have any estimate as to the amount of time, percentagewise, CAPITOL REPORTERS (916) 923-5447 10214 1 based on historical occurrences, that there would be 2 capacity to make up for releases from San Luis? 3 MR. BOARDMAN: I don't have a number. I would have to 4 look at the operation, long-term operation, to make that -- 5 MR. NOMELLINI: Could it be as high as 50 percent of 6 the time? 7 MR. BOARDMAN: I have to say it would be lower than 8 that. 9 MR. NOMELLINI: In any event, if we had a situation 10 where we wanted to provide flows in the San Joaquin River 11 upstream of Vernalis, a recirculation plan of some type 12 would be helpful, would it not? 13 MR. BIRMINGHAM: I object. This goes beyond the scope 14 of the direct. My understanding of the rules is that on 15 rebuttal the scope of cross is limited to the direct. Mr. 16 Nomellini is asking about the implementation of a 17 recirculation plan, which we did not talk about during my 18 direct examination of Mr. Boardman. My examination of him 19 was limited to the recirculation plan being advocated by 20 South Delta Water Agency, which is to meet pulse flows at 21 Vernalis during the April through May 15th period, which is 22 unrelated -- this question is unrelated to that 23 recirculation plan, and I think goes beyond the scope. 24 C.O. STUBCHAER: I think it is close enough to the 25 recirculation plan that was discussed during the direct CAPITOL REPORTERS (916) 923-5447 10215 1 rebuttal testimony. And please answer if you can. 2 MR. BOARDMAN: My personal opinion, I don't think it 3 would be -- without an impact to our water supply, we 4 wouldn't object to some type of recirculation. 5 MR. NOMELLINI: That is all I have. Thank you. 6 C.O. STUBCHAER: Thank you, Mr. Nomellini. 7 Mr. Herrick. 8 Morning. 9 ---oOo--- 10 CROSS-EXAMINATION OF WESTLANDS WATER DISTRICT AND 11 SAN LUIS AND DELTA-MENDOTA WATER AUTHORITY REBUTTAL 12 BY SOUTH DELTA WATER AGENCY 13 BY MR. HERRICK 14 MR. HERRICK: Morning. Excuse me while I get one more 15 set of books. 16 Good morning, Mr. Chairman, Board Members, John Herrick 17 for South Delta Water Agency. 18 Good morning, Mr. Boardman. 19 Mr. Birmingham asked you questions which dealt with 20 Tables V-1 and V-2 in the revised chapter of the DEIR. Do 21 you recall that? 22 MR. BOARDMAN: Yes. 23 MR. HERRICK: I believe as an introductory to those 24 questions he asked you if you were familiar with flow 25 Alternative Number 6 in the DEIR? CAPITOL REPORTERS (916) 923-5447 10216 1 MR. BOARDMAN: Yes. 2 MR. HERRICK: I believe he asked you whether or not 3 flow Alternative 6 was, according to your understanding, the 4 same as the proposal by Mr. Hildebrand made that's South 5 Delta Exhibit Number 51; is that correct? 6 MR. BOARDMAN: That is correct. 7 MR. HERRICK: Have you reviewed South Delta 51 which is 8 Mr. Hildebrand's testimony for Phase II-A? 9 MR. BOARDMAN: Yes. 10 MR. HERRICK: Have you reviewed any part of the DEIR 11 regarding Flow Alternative 6? 12 MR. BOARDMAN: To a lesser extent? 13 MR. HERRICK: Let me just quote to you from Page 11-32 14 of the Draft EIR. It says: 15 Flow Alternative 6 assigns responsibility for 16 meeting the Bay-Delta plan objectives solely 17 to the SWP and the CVP. Vernalis flow 18 objectives are the CVP's responsibility and 19 are met by releases from the Delta-Mendota 20 Canal through the Newman Wasteway into the 21 San Joaquin River. Water is also released 22 from the Newman Wasteway to meet the 23 estimated consumptive use requirements of the 24 South Delta Water Agency, as shown in Table 25 II-9. (Reading.) CAPITOL REPORTERS (916) 923-5447 10217 1 Would you like to see that? 2 MR. BOARDMAN: Reading out of -- 3 MR. HERRICK: Different chapter. 4 MR. BOARDMAN: Okay. 5 MR. HERRICK: Mr. Boardman, the DEIR earlier in the 6 document defines what the flow objectives are. And that 7 definition is: 8 For the purposes of the analysis of the 9 Draft EIR the flow -- (Reading.) 10 I am reading from Page II-16 of the DEIR. 11 For purposes of the analysis in the Draft 12 EIR, the flow objectives include: one, the 13 Delta outflow objectives; two, salinity 14 objectives in the Delta that occasionally 15 control Delta outflow; three, the flow 16 objectives in the Sacramento River at Rio 17 Vista; four, the flow objectives on the San 18 Joaquin River at Vernalis; and five, the 19 salinity objectives on the San Joaquin River 20 at Vernalis. (Reading.) 21 Mr. Boardman, it is your understanding that the 22 analysis -- is it your understanding that Alternative 6 is 23 the same recirculation proposal as Mr. Hildebrand's 24 contained in South Delta 51? 25 MR. BOARDMAN: My limited review on Alternative 6 is it CAPITOL REPORTERS (916) 923-5447 10218 1 is different than that. 2 MR. HERRICK: It is different in that Alternative 6 3 actually analyzes meeting the salinity standard at Vernalis 4 at other times of the year other than the pulse flow period? 5 MR. BOARDMAN: Yes. 6 MR. HERRICK: It also examines meeting South Delta 7 channel depletion requirements; doesn't it? 8 MR. BOARDMAN: To my knowledge, yes. 9 MR. HERRICK: And neither of those are part of the 10 proposal in South Delta 51, are they? 11 MR. BOARDMAN: That's correct. 12 MR. HERRICK: So, if we look at Tables V-1 and V-2, 13 which show decreases in water deliveries, that doesn't -- 14 that is not an analysis of South Delta 51, is it? 15 MR. BOARDMAN: That's correct. 16 MR. HERRICK: If you take out other obligations that 17 recirculation might be meeting, you would expect there to be 18 lessening of the decrease evidenced in Tables V-1 and V-2; 19 isn't that correct? 20 MR. BOARDMAN: That's correct. 21 MR. HERRICK: Let me just go backwards a little bit. 22 One of the questions asked of you by Mr. Birmingham dealt 23 with a provision proposed in South Delta 51 about decreasing 24 exports if water quality at Vernalis was not met. Do you 25 recall those questions? CAPITOL REPORTERS (916) 923-5447 10219 1 MR. BOARDMAN: Yes. 2 MR. HERRICK: I believe those questions dealt with 3 whether or not it would be a waste of water to let that 4 water flow down to the federal pumps; is that correct? 5 MR. BOARDMAN: That's correct. 6 MR. HERRICK: Are there any diverters, either upstream 7 or downstream of the federal pumps, that might be able to 8 use the water if the federal pumps don't take it? 9 MR. BOARDMAN: Yes. 10 MR. HERRICK: Would that use of that water be a waste 11 of water? 12 MR. BOARDMAN: No. 13 MR. HERRICK: Do you understand that the federal pumps 14 actually decrease water levels in the South Delta at certain 15 times? 16 MR. BOARDMAN: Yes. 17 MR. HERRICK: If that decrease of water were such that 18 it interfered with somebody exercising a riparian right, 19 would not the foregoing of exports help that person? 20 MR. BIRMINGHAM: Objection. Goes beyond the scope of 21 the direct. 22 C.O. STUBCHAER: I'll sustain. 23 MR. HERRICK: Mr. Boardman, do you think it would be a 24 waste of water if that water that the federal pumps didn't 25 pump contributed toward Delta outflow? CAPITOL REPORTERS (916) 923-5447 10220 1 MR. BOARDMAN: Over and above the minimum requirement, 2 yes. 3 MR. HERRICK: Is that because you believe anything 4 above the minimum is not beneficial, or are you perhaps 5 weighing the uses of that water between additional outflow 6 and somebody else's use? 7 MR. BOARDMAN: From a contractor's perspective, it 8 would be more beneficial to see it goes out to the Delta to 9 meet allocation. 10 MR. HERRICK: Do you know whether or not the fishery 11 interest might prefer a little extra outflow at certain 12 times? 13 MR. BOARDMAN: No doubt. 14 MR. HERRICK: So there would be other people that would 15 disagree whether or not that would be a waste of water? 16 MR. BOARDMAN: I would assume. 17 MR. HERRICK: Mr. Boardman, in the questions regarding 18 that proposed term that South Delta put forward in South 19 Delta 51, the hypothetical given to you assumed that there 20 was no connection between Delta exports and water quality at 21 Vernalis. Do you recall that? 22 MR. BOARDMAN: Yes. 23 MR. HERRICK: Mr. Boardman, if the exports and, thus, 24 the deliveries to federal contractors were decreased, would 25 that affect the amount of drainage reaching the San Joaquin CAPITOL REPORTERS (916) 923-5447 10221 1 River? 2 MR. BOARDMAN: I am not a drainage expert to accurately 3 answer that question. 4 MR. HERRICK: Generally speaking, you understand that a 5 portion of the water that is delivered to the west side of 6 the valley ends up as drainage in the San Joaquin River? 7 MR. BOARDMAN: To some extent. That is my layman's 8 opinion. 9 MR. HERRICK: Would you agree that many times that 10 drainage is of a high salinity? 11 MR. BOARDMAN: My understanding -- 12 MR. BIRMINGHAM: Object. Again, we are going beyond 13 the scope of direct examination. 14 MR. HERRICK: If I may comment, please. 15 C.O. STUBCHAER: Mr. Herrick. 16 MR. HERRICK: The basis of his answer to the 17 hypothetical included assumptions made in the 18 hypothetical. I think it is perfectly appropriate to show 19 that the assumptions in the hypothetical were incorrect. 20 MR. BIRMINGHAM: If Mr. Herrick wants to prove that the 21 assumptions in the hypothetical are incorrect, then he 22 certainly can call up a witness to do that. Mr. Boardman -- 23 the reason that I stated it as an assumption is because Mr. 24 Boardman is not an expert that is qualified to express an 25 opinion on this issue. CAPITOL REPORTERS (916) 923-5447 10222 1 Interestingly enough, Mr. Hildebrand agreed with the 2 assumption. But putting that aside, this witness is not 3 qualified to express an opinion on that issue. We stated it 4 as an assumption for that reason, and Mr. Herrick can call a 5 witness to try and rebut the assumption. 6 MR. HERRICK: If I may, Mr. Chairman. No, we can't 7 call a witness to rebut that assumption. As we said 8 yesterday, various entities supporting the San Joaquin 9 Agreement chose not to put on cases in chief. So everything 10 now is rebuttal. 11 It is hard to determine what is being rebutted here. 12 There are comments on the South Delta proposal. I don't 13 detect any evidentiary rebuttal of past evidence. I think 14 it is perfectly appropriate for me to establish because I 15 can't call another witness, try to establish whether or not 16 this witness can answer and establish the fallacies 17 contained in the assumptions. If he can't, that is what 18 happens. But I don't think it's wrong for me to try to 19 determine whether or not that those conclusions can be 20 made. 21 C.O. STUBCHAER: He's always stated that he is not an 22 expert in drainage, and you are kind of leading him along 23 with a certain series of questions regarding the drainage. 24 I am going to allow you to continue your line of 25 questioning, but also please recognize that the witness is CAPITOL REPORTERS (916) 923-5447 10223 1 not an expert, said he is not an expert in this area. And 2 if he can't answer, just go on. 3 MR. HERRICK: I appreciate that. Thank you, Mr. 4 Chairman. 5 Mr. Boardman, if a decrease in deliveries then resulted 6 in a decrease in poor quality drainage, would you expect 7 that to have an affect on the water quality downstream of 8 Vernalis? 9 MR. BOARDMAN: It's possible. 10 MR. HERRICK: Do you understand, again on that same 11 line of questioning about whether or not the water quality 12 at Vernalis is affected by exports, do you understand that 13 at some times of the year the export restrictions on the 14 state and federal pumps are based on a percentage of Delta 15 inflow? 16 MR. BOARDMAN: That's correct. 17 MR. HERRICK: That also includes flow from New Melones 18 Project; is that correct? 19 MR. BOARDMAN: Yes. 20 MR. HERRICK: If somebody decides to make water 21 releases for fish, as opposed to other purposes, this water 22 may affect the total amount of inflow into the Delta; is 23 that correct? 24 MR. BOARDMAN: That's correct. 25 MR. HERRICK: If the total amount of inflow into the CAPITOL REPORTERS (916) 923-5447 10224 1 Delta changes, that changes the amount of water that can be 2 exported, doesn't it? 3 MR. BOARDMAN: During certain times of the year. 4 MR. HERRICK: If that water released for fish could 5 have been instead released for water quality, would you then 6 agree that the inflow -- or, excuse me, that the exports can 7 be related to water quality at Vernalis? 8 MR. BOARDMAN: It is possible. 9 MR. HERRICK: Mr. Boardman, there were numerous 10 questions about what controls export limitations in the 11 Delta. I would like to explore your knowledge of that for 12 one moment. 13 You mentioned the Accord. And that is generally known 14 as the 1994 Delta Accord; is that correct? 15 MR. BOARDMAN: That's correct. 16 MR. HERRICK: I believe that was completed and agreed 17 to in December 1994; is that correct? 18 MR. BOARDMAN: Yes. 19 MR. HERRICK: That is, then, at least a few months 20 before the adoption of the 1995 Water Quality Control Plan; 21 is that correct? 22 MR. BOARDMAN: That's correct. 23 MR. HERRICK: I think you misspoke earlier. Would you 24 agree that the biological opinion for Delta smelt was redone 25 or issued sometime in '95? CAPITOL REPORTERS (916) 923-5447 10225 1 MR. BOARDMAN: Yes. 2 MR. HERRICK: That document itself has export 3 limitations in it based on Delta smelt, needed Delta smelt 4 protections? 5 MR. BOARDMAN: That's correct, yes. 6 MR. HERRICK: Limitations on exports are also contained 7 in the 1995 Water Quality Control Plan; is that correct? 8 MR. BOARDMAN: Yes. 9 MR. HERRICK: We have mentioned that the Delta Accord 10 itself has export limitations also; is that correct? 11 MR. BOARDMAN: Yes. 12 MR. HERRICK: Do you know whether or not any of those 13 export limitations are the same? By that I mean those three 14 documents we talked about: Biological Opinion for Delta 15 Smelt, 1995 Water Quality Control Plan and the Delta Accord. 16 Do you know whether any of those are the same? 17 MR. BOARDMAN: My experience has been focused primarily 18 in the 1995 Water Quality Control Plan. That is what I work 19 from, so I couldn't speak to any exact similarities, I 20 guess, between the three documents. Especially between the 21 Accord and the Water Quality Control Plan. They are kind of 22 one in the same as far as what I understand. 23 MR. HERRICK: But you would agree, wouldn't you, that 24 the export limitations contained in the 1995 Water Quality 25 Control Plan for the pulse flow period are a hundred percent CAPITOL REPORTERS (916) 923-5447 10226 1 of the San Joaquin River flow? 2 MR. BOARDMAN: That's correct. 3 MR. HERRICK: Do you know whether or not that export is 4 limited to the hundred percent of the San Joaquin River flow 5 or some flow in the Sacramento and a hundred percent of the 6 San Joaquin River flow? 7 MR. BIRMINGHAM: Ambiguous. 8 C.O. STUBCHAER: Could you clarify? 9 MR. HERRICK: Certainly. 10 C.O. STUBCHAER: Could you also point out where you 11 are -- are you referring to the plan in your question? 12 MR. HERRICK: Actually, no. I am asking for his 13 understanding. Let me back up, then. You understand that 14 the 1995 Water Quality Control Plan places an export 15 limitation of a hundred percent of the San Joaquin River 16 flow during the pulse flow period; is that correct? 17 MR. BOARDMAN: Yes. 18 MR. HERRICK: Is that total exports or a portion of the 19 exports allowed? 20 MR. BOARDMAN: That would be the total exports. 21 MR. HERRICK: Do you have any understanding of the 22 exports, the export limitations contained in the biological 23 opinion? 24 MR. BOARDMAN: Not as clear an understanding. 25 MR. HERRICK: I believe in answer to some of the CAPITOL REPORTERS (916) 923-5447 10227 1 questions by Mr. Birmingham you did talk about a two-to-one 2 ratio; is that correct? 3 MR. BOARDMAN: That's correct. 4 MR. HERRICK: I believe you said that some biologists 5 believe that it is a two-to-one ratio. Is there some 6 disagreement that you know about what exactly is the 7 limitation? 8 MR. BIRMINGHAM: Objection. Misstates his testimony. 9 MR. HERRICK: The witness can certainly correct it, 10 then. I am not trying to change his testimony. I am trying 11 to ask him what he believes. 12 C.O. STUBCHAER: Answer if you can. 13 MR. BOARDMAN: As I stated earlier, my understanding of 14 the biological opinion of the export restrictions contained 15 in the opinion were 50 percent -- the base flow and the 16 Vernalis flow would be -- calls for 50 percent more than 17 what the export rate is currently at, or during the pulse 18 flow period, if that answers your question. 19 MR. HERRICK: I am not sure I understand that. Is it 20 your understanding that the biological opinion requires 21 export -- the export rate to be one-half of the San Joaquin 22 River flow? 23 MR. BOARDMAN: Yes. 24 MR. HERRICK: But your understanding is that is not -- 25 that's a different limitation than in the '95 plan? CAPITOL REPORTERS (916) 923-5447 10228 1 MR. BOARDMAN: That's correct. 2 MR. HERRICK: One of the hypotheticals you talked about 3 dealt with a 2,000 cfs flow at Vernalis and whether or not 4 recirculation would be possible? Do you recall that 5 question? 6 MR. BOARDMAN: Yes. 7 MR. HERRICK: Now other export limitations pursuant to 8 the biological opinion are allowed, are they not? 9 I am sorry, let me back up. I believe the question 10 dealt what the export limitation would be if you had 2,000 11 cfs flow at Vernalis; is that correct? 12 MR. BOARDMAN: That's correct. 13 MR. HERRICK: You categorized that as a thousand cfs 14 export limitation? 15 MR. BOARDMAN: For each project, yes. 16 MR. HERRICK: You were answering for a hundred percent 17 export? 18 MR. BOARDMAN: That's right. 19 MR. HERRICK: What's your understanding of the export 20 limitation if the biological opinion were in place? 21 MR. BOARDMAN: My interpretation would be half of the 22 2,000 Vernalis. So between both projects, they would have 23 to split a hundred cfs. 24 MR. HERRICK: You are familiar with Mr. Hildebrand's 25 testimony in South Delta 51? CAPITOL REPORTERS (916) 923-5447 10229 1 MR. BOARDMAN: Yes. 2 MR. HERRICK: Did you review the portion in it where he 3 goes through the examination of the potential use of pumps 4 for recirculation still fitting within the biological 5 opinion limitations? 6 MR. BOARDMAN: Are you referring to the example on Page 7 4? 8 MR. HERRICK: Yes. 9 MR. BOARDMAN: Yes. 10 MR. HERRICK: Do you disagree with his analysis? 11 MR. BOARDMAN: The only thing that was confusing there 12 to me was the base export rate of 1,500 cfs and how he came 13 about a base export rate of 1,500 cfs. 14 MR. HERRICK: Are you familiar with the San Joaquin 15 River Agreement which is proposed for adoption by this 16 Board? 17 MR. BOARDMAN: Yes. 18 MR. HERRICK: Does not the San Joaquin River Agreement 19 attempt to institute the VAMP program? 20 MR. BOARDMAN: That's correct. 21 MR. HERRICK: In fact, on Page 4 of the appendix 22 attached to the San Joaquin River Agreement, and I apologize 23 for not knowing the number of that exhibit -- 24 MS. WHITNEY: Two. 25 MR. HERRICK: San Joaquin River Exhibit 2, Page 4 of CAPITOL REPORTERS (916) 923-5447 10230 1 the appendix attached to that, which is the VAMP agreement, 2 sets for an export limitation schedule. 3 Are you familiar with that? 4 MR. BOARDMAN: Yes. 5 MR. HERRICK: On that export limitation schedule there 6 are various export rates; is that correct? 7 MR. BOARDMAN: That's correct. 8 MR. HERRICK: Under three of the scenarios they have 9 1,500 cfs as an export limitation? 10 MR. BOARDMAN: Yes. 11 MR. HERRICK: Does that help you in your understanding 12 of Mr. Hildebrand's analysis on Page 4 of South Delta 51? 13 MR. BOARDMAN: Yes, if you assume that this example is 14 taking place under VAMP. 15 MR. HERRICK: Also on that same Page 4 of the appendix, 16 South Delta Exhibit 42, the 1,500 cfs limitation is proposed 17 for three different flows; is that correct? 18 MR. BOARDMAN: Yes. 19 MR. HERRICK: One of those is 7,000 cfs, isn't it? 20 MR. BOARDMAN: Yes. 21 MR. HERRICK: If we were going to examine whether or 22 not we weren't exceeding the two-to-one export ratio and you 23 had an existing export limitation of 1,500 cfs, wouldn't you 24 agree you have some more export capacity before you reached 25 that two-to-one ratio? CAPITOL REPORTERS (916) 923-5447 10231 1 MR. BOARDMAN: Yes. 2 MR. HERRICK: In those circumstances you would be able 3 to recirculate some water; is that correct? 4 MR. BOARDMAN: Yes. 5 MR. HERRICK: If you were recirculating water, would 6 you agree there would be no-net loss to the exporters if 7 that same base, 1,500 cfs, was being used for what it was 8 being used before? 9 MR. BOARDMAN: That's correct. 10 MR. HERRICK: Mr. Boardman, have you done an analysis 11 using the other potential restrictions in flows to see in 12 what other circumstances recirculation might be acceptable? 13 MR. BOARDMAN: No, I have not. 14 MR. HERRICK: Has anybody at the San Luis Authority 15 done that? 16 MR. BOARDMAN: Not specifically quantified what the 17 numbers might look like. We have looked at the number of 18 months that excess capacity existed at Tracy. Again, it was 19 focused on -- our analysis was focused on the federal 20 pumping plant and what available capacity existed during the 21 pulse flow period. We have gone that far with it. 22 MR. HERRICK: Just clearly for the record, then, you 23 would agree that under the scenario we just went through 24 that it appears that you can do recirculation without 25 interfering with the export amounts that would have been CAPITOL REPORTERS (916) 923-5447 10232 1 going to the contractors in the absence of the 2 recirculation? 3 MR. BOARDMAN: It is possible. 4 MR. HERRICK: It is possible to comply with the 5 biological opinion which requires a two-to-one inflow to 6 export ratios; is that correct? 7 MR. BOARDMAN: In this particular example it does. 8 MR. HERRICK: Mr. Boardman, you are familiar with Mr. 9 Hildebrand's testimony in South Delta 51; is that correct? 10 MR. BOARDMAN: That's correct. 11 MR. HERRICK: Did you note in there that Mr. Hildebrand 12 comments on the potential need for reevaluation of the 13 biological opinion? 14 MR. BOARDMAN: I don't recall specifically. 15 MR. HERRICK: Do you know whether that biological 16 opinion was based on prebarrier data or not? 17 MR. BOARDMAN: I can't comment on that. 18 MR. HERRICK: Mr. Boardman, are you -- would you agree 19 that the flow schedule set forth in the 1995 Water Quality 20 Control Plan for that pulse period are not specifically tied 21 to meeting a biological opinion for Delta smelt? 22 MR. BOARDMAN: I am not knowledgeable about that. 23 MR. HERRICK: Do you know whether or not those flows 24 are for salmon protection or not? 25 MR. BOARDMAN: They are for salmon, as I understand CAPITOL REPORTERS (916) 923-5447 10233 1 it. 2 MR. HERRICK: If the Board will just bear with me, I am 3 just going through my notes from the verbal testimony. I 4 apologize for the delays. 5 Mr. Boardman, if the Board is going to analyze the 6 potential effects of the recirculation program on entities 7 such as yours, or any other aspect, would you agree that 8 that analysis should also compare those potential effects 9 against the potential benefits of the recirculation program? 10 MR. BOARDMAN: Yes. 11 MR. HERRICK: Have you done any analysis that does that 12 comparison between potential adverse effects and potential 13 positive effects? 14 MR. BOARDMAN: No, I have not. 15 MR. HERRICK: Mr. Boardman, again going back to the 16 example given to you by Mr. Birmingham regarding the 2,000 17 cfs flow at Vernalis, do you know whether or not that 18 example, that flow, is equal to the minimum flow set forth 19 in the Water Quality Control Plan at any time? 20 MR. BOARDMAN: Minimum flow, as I understand it, was 21 1,500 hundred cfs combined. 22 MR. HERRICK: I am talking flow, not exports. 23 MR. BOARDMAN: Export. 24 MR. HERRICK: Let me show you Page II-5 from the Water 25 Quality Control Plan. I pointed out to you the pulse flow CAPITOL REPORTERS (916) 923-5447 10234 1 period on that page. Would you agree that the minimum flow 2 required by the plan appears to be approximately 3,100 cfs; 3 is this correct? 4 MR. BOARDMAN: That's correct. 5 MR. HERRICK: Are you familiar with the flows required 6 or sought in the VAMP program? 7 MR. BOARDMAN: Yes, from the table. 8 MR. HERRICK: Would you agree that those flows for VAMP 9 are, at a minimum, 3,200? 10 MR. BOARDMAN: Yes, appears so. 11 MR. HERRICK: As far as you know, what is being 12 proposed -- Strike that. 13 Mr. Boardman, some of your testimony dealt with the 14 ability to do makeup pumping to recover any potential loss 15 to exporters; is this correct? 16 MR. BOARDMAN: Yes. 17 MR. HERRICK: One of the questions dealt with 95-6, 18 which is an order of this Board or was superseded last 19 month. Are you familiar with this order to some degree? 20 MR. BOARDMAN: To some degree. 21 MR. HERRICK: Are you familiar enough to recall that 22 that order allows for makeup pumping under certain 23 circumstances? 24 MR. BOARDMAN: Yes. 25 MR. HERRICK: Are you aware that the Bureau has sought CAPITOL REPORTERS (916) 923-5447 10235 1 makeup pumping, I think, in most of the years since 1995? 2 MR. BOARDMAN: Yes. 3 MR. HERRICK: Do you have any -- do you have any 4 knowledge of what months the Bureau proposed doing makeup 5 pumping during the past three years? 6 MR. BOARDMAN: Not specifically. 7 MR. HERRICK: Are you aware of the Bureau's recent 8 request to do makeup pumping in this December and January? 9 MR. BOARDMAN: Yes. 10 MR. HERRICK: Is there a reason why you didn't include 11 those months as potential months to make up any lost export 12 water when you answered the question asked to you by Mr. 13 Birmingham? 14 MR. BOARDMAN: The assumption at that time was that if 15 we encountered an impact with because of the recirculation 16 which takes place in April, the assumption was that we would 17 be making up that impact after the fact rather than 18 prepumping in preparation for that recirculation. 19 MR. HERRICK: Do you know whether or not 95-6 limited 20 the makeup pumping to after the fact? 21 MR. BOARDMAN: To my knowledge, it doesn't? 22 MR. HERRICK: Do you know whether or not the order 23 that replaced it, 98-9 has that limitation of subsequent 24 pumping instead of prepumping? 25 MR. BOARDMAN: Not familiar with that one. CAPITOL REPORTERS (916) 923-5447 10236 1 MR. HERRICK: If I may just try to jog your memory, 2 would it jog your memory if I told you that 98-9, the 3 current makeup pumping, allows for makeup pumping one year 4 of either side of the loss? 5 MR. BOARDMAN: Okay. 6 MR. HERRICK: If that were the case, then the months in 7 which you could attempt to cure impact to exporters would be 8 expanded, would it not? 9 MR. BOARDMAN: Provided the reservoir had storage in 10 there to accommodate any kind of prepumping. 11 MR. HERRICK: By "the reservoir" you mean San Luis 12 Reservoir? 13 MR. BOARDMAN: San Luis Reservoir. 14 MR. HERRICK: If the federal portion was, for some 15 reason, full or approaching, we could also potentially look 16 at the state side of that reservoir; is that correct? 17 MR. BOARDMAN: Potentially. 18 MR. HERRICK: Mr. Boardman, are you aware of any year 19 in which the Bureau wanted to do makeup pumping, but was 20 unable to find months in which to accomplish that makeup 21 pumping? 22 MR. BOARDMAN: Yes. Right now they want to do makeup 23 pumping for some of the measures that are slated to be 24 implemented, the AFRP measures. 25 MR. HERRICK: When you say "right now," are you saying CAPITOL REPORTERS (916) 923-5447 10237 1 -- what is it that is preventing them from doing makeup 2 pumping right now, if you know? 3 MR. BOARDMAN: Available capacity after April. 4 MR. HERRICK: I misunderstood. Let me back up and 5 start over. 6 Are you -- I apologize. I didn't follow. 7 Are you aware of any times in the last three years when 8 the Bureau was seeking makeup pumping but could not find a 9 month in which they can do makeup pumping? 10 MR. BOARDMAN: Can't recall specific occurrences. They 11 may have been seeking makeup pumping during a particular 12 month and found they couldn't, and then accommodated or 13 performed that makeup pumping at some other month, but 14 possibly wasn't as beneficial to maintaining the 15 allocation. 16 MR. HERRICK: Are you aware of any decrease in amounts 17 of water provided to exporters in the last three years due 18 to the inability of the Bureau to accomplish makeup 19 pumping? 20 MR. BOARDMAN: Not in the last three years. Just 21 because of the wet conditions, I think we have had plenty of 22 water in the system. 23 MR. HERRICK: Excuse me if I am replowing ground 24 covered by the other cross-examiner. In the discussion 25 about affects on deliveries to exporters Mr. Birmingham CAPITOL REPORTERS (916) 923-5447 10238 1 asked you questions about the affect to the exchange 2 contractors; is that correct? 3 MR. BOARDMAN: That's correct. 4 MR. HERRICK: This year the exchange contractors are 5 selling 50,000 acre-feet; is that correct? 6 MR. BOARDMAN: I am not familiar with the exact number. 7 MR. HERRICK: Are you aware of any other sales the 8 exchange contractors have done, say, in recent history, in 9 the last three years? 10 MR. BOARDMAN: I am, but I just can't recall the 11 numbers. 12 MR. HERRICK: Finally, Mr. Boardman, would you agree 13 that Mr. Hildebrand's proposal contained in South Delta 51 14 regarding recirculation clearly states that the 15 recirculation pumping should be superimposed on existing 16 pumping limitations; is that correct? 17 MR. BOARDMAN: That's correct. 18 MR. HERRICK: I have no further questions. Thank you 19 very much. 20 C.O. STUBCHAER: Thank you, Mr. Herrick. 21 Mr. Birmingham, are you going to have redirect? I have 22 to go to staff and Board first, just for a point of 23 information. 24 MR. BIRMINGHAM: Yes. 25 C.O. STUBCHAER: Let's take our morning break now. CAPITOL REPORTERS (916) 923-5447 10239 1 (Break taken.) 2 C.O. STUBCHAER: Call the meeting back to order. 3 Questions by staff of Mr. Boardman. 4 Mr. Howard. 5 ---oOo--- 6 CROSS-EXAMINATION OF WESTLANDS WATER DISTRICT AND 7 SAN LUIS AND DELTA-MENDOTA WATER AUTHORITY REBUTTAL 8 BY STAFF 9 MR. HOWARD: Morning, Mr. Boardman. I would like to 10 ask you a couple questions responding to Mr. Herrick on 11 South Delta Water Agency Exhibit 51. 12 Do you have a copy of this exhibit? 13 MR. BOARDMAN: Yes, I do. 14 MR. HOWARD: On Page 4 Mr. Hildebrand had conducted a 15 calculation. The first question I would like to ask is: Do 16 you agree with the assertion, or rather am I right in that 17 you earlier had made the assertion that the Bureau always 18 operates to maximize exports? 19 MR. BOARDMAN: Yes. 20 MR. HOWARD: Under the calculation, it shows a base 21 flow of 5,000 at Vernalis, a Vernalis pulse flow objective 22 of 7,000 cfs and a base export rate of 1,500 cfs. If the 23 Bureau is always operating to maximize exports and if there 24 is a base flow of 5,000 cfs and if there is a biological 25 opinion with a two-to-one ratio of flows at Vernalis to CAPITOL REPORTERS (916) 923-5447 10240 1 exports, wouldn't the export rate that the Bureau would 2 choose to operate at be approximately 2,500 cfs? 3 MR. BOARDMAN: That's correct. 4 MR. HOWARD: Therefore, it would still need 2,000 cfs 5 in order to meet the Vernalis pulse flow objective at that 6 point; is that correct? 7 MR. BOARDMAN: Yes. 8 MR. HOWARD: If it chose to meet that pulse flow 9 objective through recirculation, it would have to export an 10 additional 2,000 cfs; is that correct? 11 MR. BOARDMAN: That's correct. 12 MR. HOWARD: That would mean that exports at that point 13 were 4,500 cfs and the Vernalis pulse flow objective is 14 7,000 cfs; is that correct? 15 MR. BOARDMAN: Yes. 16 MR. HOWARD: That would mean that we're not in 17 compliance with the biological opinion for the National 18 Marine Fisheries for the Delta smelt; is that correct? 19 MR. BOARDMAN: Yes. 20 MR. HOWARD: In order to maintain compliance with the 21 biological opinion, we would have to reduce the additional 22 exports at the export facility by a thousand cfs and instead 23 pull a thousand cfs out of San Luis Reservoir. Is that one 24 way to meet the -- 25 MR. BOARDMAN: That is one way. CAPITOL REPORTERS (916) 923-5447 10241 1 MR. HOWARD: If we were to pull a thousand cfs out of 2 San Luis Reservoir, would that impact, in your opinion, the 3 deliveries to the agricultural contractors? 4 MR. BOARDMAN: Likely impact. 5 MR. HOWARD: That is all. 6 Thank you. 7 C.O. STUBCHAER: Any other questions from staff? 8 MS. LEIDIGH: No. 9 C.O. STUBCHAER: Board Members. 10 C.O. BROWN: Yes, sir. 11 C.O. STUBCHAER: Mr. Brown. 12 ---oOo--- 13 CROSS-EXAMINATION OF WESTLANDS WATER DISTRICT AND 14 SAN LUIS AND DELTA-MENDOTA WATER AUTHORITY REBUTTAL 15 BY BOARD MEMBERS 16 C.O. BROWN: Pretty sure I understand what you mean by 17 no-net loss, Mr. Boardman, but I would like to get it on the 18 record, anyway. 19 That is that Alternative 3 has a cost to the 20 contractors, doesn't it, water cost? 21 MR. BOARDMAN: Alternative 3? 22 C.O. BROWN: Yes. 23 MR. BOARDMAN: I am not familiar exactly with what 24 Alternative 3 is. 25 C.O. BROWN: You have read Alternative 6, clearly it CAPITOL REPORTERS (916) 923-5447 10242 1 sounds like. Would be South Delta Exhibit 51 in the EIR? 2 MR. BOARDMAN: Alternative 6, I probably reviewed that 3 less than I have with South Delta's proposal for 4 recirculation. 5 C.O. BROWN: Have you read the other alternatives to 6 get a comparison of which alternatives might be best? 7 MR. BOARDMAN: Not to a large extent. 8 C.O. BROWN: So, you're just kind of giving testimony 9 here on Alternative 6 then, for the most part? 10 MR. BOARDMAN: Yes, primarily. And also the effects of 11 any recirculation as far as if that recirculation causes an 12 impact I am here to testify that -- or any recirculation 13 takes water away from, out of San Luis or takes water away 14 from, say, export pumping. I would be testifying that that 15 water would likely have an impact on allocation. 16 C.O. BROWN: But the other alternatives have an impact 17 -- are you talking about the increment of impact of 6 over 18 the other alternatives or any impact at all? 19 MR. BOARDMAN: When I was talking about the impacts of 20 6, I was referring to that table, Table V-1, and the impacts 21 that are listed in there and -- 22 C.O. BROWN: So, you are making reference to the Delta, 23 the increment of impact between the other alternatives or 24 any impact at all? I want to make sure I understand. You 25 don't like Alternative 6 unless there is no impacts to the CAPITOL REPORTERS (916) 923-5447 10243 1 San Luis water users? 2 MR. BOARDMAN: Probably would be a fair thing to say. 3 We don't object to any type of recirculation that may take 4 place so long as there is not an impact to our water 5 supply. And Table V-1 clearly slows that there would be an 6 impact to contractors. 7 C.O. BROWN: My point is the other alternatives also 8 show an impact, that is why I'm a little confused here. If 9 the other impacts show an impact, then the only way you 10 would be receptive to Alternative 6 if there was no impact 11 at all? 12 MR. BOARDMAN: I would say so. 13 C.O. BROWN: You read South Delta Number 51 and 14 understand the proposals by Mr. Hildebrand in that 15 testimony. In his testimony he is stating or recommending, 16 I forget which, that the State Board consider allowing 17 repumping of a quantity of water that would be diverted for 18 recirculation. As a for instance, if this was 1,500 or 19 2,000 cfs that was being diverted out of San Luis as he 20 suggested for recirculation, then the base requirement of 21 two-to-one for what was in the river would mean in effect, I 22 believe he stated, but that the State or Bureau would be 23 able to recirculate the 2,000 that was put in the river at 24 San Luis in addition to their base quantity of flow? 25 MR. BOARDMAN: That's correct. CAPITOL REPORTERS (916) 923-5447 10244 1 C.O. BROWN: If Mr. Howard some way was able to 2 convince Fish and Wildlife this was acceptable, then would 3 this Alternative 6 be acceptable to you? 4 MR. BOARDMAN: If the export rates stated in the 5 example here, 1,500 cfs was, in fact, what we would 6 otherwise pump without the recirculation project, I would 7 agree. 8 C.O. BROWN: That is all I have, Mr. Chairman. 9 C.O. STUBCHAER: Ms. Forster. 10 MEMBER FORSTER: When you first started to give some 11 answers to the cross, I wrote down a question, and I know 12 you answered it, but I want to propose it again. I wrote 13 down a question that says: Is it possible to do 14 recirculation some years and not others? And then when Mr. 15 Herrick came up, he gave a hypothetical where he explained 16 different amounts of water and said: Couldn't you 17 recirculate given this example? I am still -- my question 18 is the broad one. I wanted to go over it one more time. 19 In your opinion is it possible to do recirculation in 20 some years and not in others? And then, I guess, I would 21 like you to expand on it. How would you see it working? 22 And then the last part of it would be: Mr. Herrick said: 23 Has anybody analyzed the potential beneficial effects of 24 this? Just being a good neighbor would you see any 25 potential benefit effects of this? CAPITOL REPORTERS (916) 923-5447 10245 1 I want to go over it again. Is it possible in some 2 years? How would that look or play out? And what would be 3 the positive effects of it? 4 MR. BOARDMAN: It is possible in some years to do the 5 recirculation as South Delta has proposed here. In order 6 for that to happen the recirculation would have to take 7 place with excess pumping capacity, as I stated earlier, 8 over and above the export rate that the projects are 9 currently pumping at. That rate would be set at whatever 10 the maximum rate could be at under the Bay-Delta Accord or 11 the VAMP, whatever type of regulatory constraints you have 12 at that time. 13 The legal arguments as to operating under the VAMP 14 versus operating under the Accord is kind of somewhat vague 15 to me. I throw both of those out there every time I mention 16 that. It depends on if you are operating under VAMP; for 17 example, let's just use that 1,500 cfs is the maximum 18 export, let's say, in a particular year, let's say that the 19 Tracy Pumping Plant is half of that 1,500 allowable, 750 20 cfs, it has 3,000-plus excess pumping capacity left, 21 remaining, and so that could be utilized to accommodate the 22 recirculation during the pulse flow period. As well there 23 is some excess pumping capacity that would be available at 24 Banks as well, and that number is large as well. 25 Under that particular example, there is excess pumping CAPITOL REPORTERS (916) 923-5447 10246 1 capacity available. It is over and above what the projects 2 would be able to operate anyway. So it could be possible. 3 What it would take, I think, to allow that to happen is that 4 that the projects or the export pumping plants would have to 5 be allowed to pump over and above their 1,500 cfs. 6 For example, if there is 2,000 cfs recirculatory 7 capacity sought and pumping plants are pumping at a base of 8 1,500, then the regulatory bodies would have to allow the 9 export pumping plants to pump at the 1,500 plus the 2,000 10 cfs. 11 MEMBER FORSTER: Thank you. 12 C.O. STUBCHAER: Mr. Howard. 13 MR. HOWARD: I would like to follow up with a question 14 following up from Board Member Brown's question. 15 C.O. STUBCHAER: Tom, they can't hear you in the back. 16 MR. HOWARD: I would like to follow up with a follow-up 17 question from Mr. Brown's question. When you're saying that 18 your clients would not find acceptable any alternative that 19 decreases water deliveries to the agricultural contractors, 20 what are you using as the base for determining decreases? 21 MR. BOARDMAN: The base that we have been -- from my 22 perspective as a modeler, we are using the Bay-Delta Accord 23 plus CVPIA, some of the demand obligations brought on by 24 Central Valley Project Improvement Act. Primarily, the 25 Delta standards would -- the Bay-Delta Accord would be our CAPITOL REPORTERS (916) 923-5447 10247 1 base. 2 MR. HOWARD: Bay-Delta Accord in which the CVP and the 3 SWP are exclusively responsible for meeting the Accord 4 standards? 5 MR. BOARDMAN: As I understand it, yes. 6 MR. HOWARD: If you look at Table V-1, is it true that 7 the base case under Table V-1 -- do you have that table in 8 front of you? 9 MR. BOARDMAN: Yes. 10 MR. HOWARD: -- under which the delivery reductions 11 that you are citing here are under a base case of D-1485? 12 Actually, it doesn't say -- 13 MR. BOARDMAN: Okay. Was there a question? I missed 14 that. 15 MR. HOWARD: We have a couple alternatives or a number 16 of alternatives in the Bay-Delta EIR. One is Alternative 1 17 which is D-1485; and the second is Alternative 2 which is 18 the 1995 Bay-Delta Plan with the CVP and SWP exclusively 19 responsible. 20 Under the Table V-1, the delivery base case is our 21 Alternative 1. So were you comparing, in looking at Table 22 V-1 in looking at the export reductions listed there, were 23 you comparing those export reductions against our D-1485 24 base case? 25 MR. BOARDMAN: The export reductions you are talking CAPITOL REPORTERS (916) 923-5447 10248 1 about under Alternative 6 in here? 2 MR. HOWARD: Yes. 3 MR. BOARDMAN: I believe that the numbers stated there 4 in comparison to a 1485 -- I guess my review of this isn't 5 so much, especially for today, wasn't so much to do a 6 comparison of Alternative 2 and 6, and so forth. It was 7 more or less just the distribution and the assumption of 8 those impacts from Alternative 6 amongst the various 9 contractors. 10 But to be honest, my -- the time in which I reviewed 11 this document and the comparisons of each alternative has 12 been some time. I came prepared here to just more or less 13 discuss the, I guess the, distribution of the impacts 14 related to Alternative 6, which is the recirculation plan. 15 MR. HOWARD: Fundamentally, I was trying to ascertain 16 what is the base case under which you were making your 17 position clear that export reductions would be unacceptable. 18 As I understand it, and correct me if I am wrong, it is the 19 1995 Bay-Delta Plan? 20 MR. BOARDMAN: That is correct. 21 MR. HOWARD: Were the CVP and the SWP responsible for 22 meeting those objectives? 23 MR. BOARDMAN: Yes. 24 MR. HOWARD: Thank you. 25 C.O. STUBCHAER: Ms. Forster. CAPITOL REPORTERS (916) 923-5447 10249 1 MEMBER FORSTER: I forgot to ask you to finish the 2 question on potential positive effects. So now that I have 3 another chance at it, I guess what I am looking for is some 4 positiveness from your point of view of what recirculation 5 can do. And also in your opinion if you weren't harmed by 6 exports, would you see -- would you anticipate any harm in 7 water quality, in the quality of the water? Would 8 recirculation do any harm to your water quality? 9 MR. BOARDMAN: I think the -- 10 MEMBER FORSTER: Positive first. 11 MR. BOARDMAN: I think it's positive all around. I 12 think that the water quality impacts would be minimal as a 13 result of recirculation. I think provided the recirculation 14 was done with a no-net impact to water supply, I think there 15 could be some water quality improvements to South Delta 16 folks, primarily as I am discussing here. Six weeks' worth 17 of drainage prior to the pulse flow period be held back and 18 released during this pulse flow period to obtain a better 19 dilution of those drainages during that four-week period, 20 instead of having a drainage problem for ten weeks. With 21 the added flows of the recirculation, that it is possible to 22 get -- to compress that ten weeks' worth of drainage flows 23 into a four-week period and not increase the water quality 24 during that four-week period by any significant amount. 25 In that sense I think, and again, I am not a water CAPITOL REPORTERS (916) 923-5447 10250 1 quality expert. I would think, though, that the 2 recirculation could have some benefits as far as to 3 accommodate the drainage that would otherwise occur over a 4 longer period of time. 5 MEMBER FORSTER: I guess -- I appreciate that, thank 6 you. Is there any problem with water quality to your 7 customers? Is there any nexus between recirculation and any 8 water quality problems that you would suffer? 9 MR. BOARDMAN: To my knowledge, water quality from our 10 perspective hasn't been an issue. 11 MEMBER FORSTER: Thank you. 12 C.O. STUBCHAER: That concludes the cross-examination. 13 Mr. Birmingham, redirect. 14 ---oOo--- 15 REDIRECT EXAMINATION OF WESTLANDS WATER DISTRICT AND 16 SAN LUIS AND DELTA-MENDOTA WATER AUTHORITY REBUTTAL 17 BY MR. BIRMINGHAM 18 MR. BIRMINGHAM: Mr. Boardman, you were asked a 19 number of questions about your direct examination with 20 respect to Table V-1 from the revised chapters of the Draft 21 Environmental Impact Report. Do you recall those 22 questions? 23 MR. BOARDMAN: Yes. 24 MR. BIRMINGHAM: The basic purpose of your testimony 25 with respect to Table V-1 was that the exchange contractors CAPITOL REPORTERS (916) 923-5447 10251 1 don't take shortages as a result of limitations imposed on 2 exports; isn't that correct? 3 MR. BOARDMAN: That's correct. 4 MR. BIRMINGHAM: So you were not trying to compare 5 alternatives; it's just that the assumption in there, in 6 Table V-1, that some limitation on exports would result in a 7 reduction to the exchange contractors is an erroneous 8 assumption? 9 MR. BOARDMAN: That's correct. 10 MR. BIRMINGHAM: Ms. Forster asked you a question about 11 the potential benefits from the recirculation plan. Is it 12 your understanding that the principal purpose behind the 13 recirculation proposal is to increase the amount of water 14 that would be available for water users along the San 15 Joaquin River and in the South Delta for other times of the 16 year? 17 MR. BOARDMAN: That's correct. 18 MR. BIRMINGHAM: That would be a benefit to the South 19 Delta Water Agency water users? 20 MR. BOARDMAN: Yes. 21 MR. BIRMINGHAM: Mr. Nomellini asked you some questions 22 about the relationship between the -- let me restate this. 23 What is your understanding of what will happen in terms 24 of the application of the biological opinion if the 25 Bay-Delta Accord expires? CAPITOL REPORTERS (916) 923-5447 10252 1 MR. BOARDMAN: I would assume that we would fall back 2 to having to comply with the biological opinion. 3 MR. BIRMINGHAM: When you say the "biological opinion," 4 you are referring to the export restrictions imposed by the 5 biological opinion? 6 MR. BOARDMAN: That's correct. 7 MR. BIRMINGHAM: If the Bay-Delta Accord expires, there 8 would be a -- let me restate the question. 9 The Bay-Delta Accord replaced the restrictions imposed 10 in the earlier biological opinion for Delta smelt? 11 MR. BOARDMAN: That is correct. 12 MR. BIRMINGHAM: If the Bay-Delta Accord expires, then 13 limitations imposed by Fish and Wildlife Service in the 14 biological opinion would again become operative? 15 MR. BOARDMAN: As I understand it, yes. 16 MR. BIRMINGHAM: Are you familiar with the Vernalis 17 Adaptive Management Plan, Mr. Boardman? 18 MR. BOARDMAN: To some degree. 19 MR. BIRMINGHAM: What is your understanding of the 20 purpose behind the Vernalis Adaptive Management Plan 21 experiment? 22 MR. BOARDMAN: My understanding is that the purpose of 23 the plan is to establish some -- to establish a correlation 24 if one exists between exports and smolt survivability. 25 MR. BIRMINGHAM: So, your understanding of the purpose CAPITOL REPORTERS (916) 923-5447 10253 1 of VAMP is to determine, is to collect data to determine if 2 there is a relationship between export rates and salmon 3 smolt survival? 4 MR. BOARDMAN: That is correct. 5 MR. BIRMINGHAM: As part of the experiment design, the 6 Vernalis Adaptive Management Plan proposes some limitations 7 on exports? 8 MR. BOARDMAN: Yes. 9 MR. BIRMINGHAM: The limitations are related to the 10 amount of flow in the San Joaquin River at Vernalis? 11 MR. BOARDMAN: Yes. 12 MR. BIRMINGHAM: Let's talk hypothetically about a 13 situation in which, under the Vernalis Adaptive Management 14 Plan, the export rate is limited to 1,500 cfs. If the 15 export rate under the Vernalis Adaptive Management Plan is 16 limited to 1,500 cfs, is it your understanding that data 17 will be collected to determine the impact of that export 18 rate on salmon smolt survival? 19 MR. BOARDMAN: As I understand it, yes. 20 MR. BIRMINGHAM: Then those data will be compared to 21 other data collected when flows in the San Joaquin River are 22 different or export rates are different; is that correct? 23 MR. BOARDMAN: Yes. 24 MR. BIRMINGHAM: If, as part of a recirculation plan, 25 exports were increased from -- let me restate the question. CAPITOL REPORTERS (916) 923-5447 10254 1 If, as part of a recirculation plan, exports were 2 increased from 1,500 cfs to 2,500 cfs during the pulse flow 3 period, would that affect the ability of the biologists to 4 determine the relationship of flow to salmon smolt survival? 5 MR. BOARDMAN: I would assume it could. 6 C.O. BROWN: Clarification, Mr. Chairman. 7 C.O. STUBCHAER: Mr. Brown. 8 C.O. BROWN: Does that include the Delta barriers as 9 proposed in testimony in South Delta 51? Same answer? 10 MR. BOARDMAN: Yes. I would again assume so. 11 C.O. STUBCHAER: Ms. Forster. 12 MEMBER FORSTER: I am trying to understand something, 13 too. Are you asking your witness if the VAMP is in conflict 14 with recirculation? 15 MR. BIRMINGHAM: No. What I am asking the witness is 16 if recirculation would affect the veracity of the 17 experiment? 18 MEMBER FORSTER: Isn't that the VAMP? 19 MR. BIRMINGHAM: The experiment is VAMP, yes. And what 20 I am asking the witness, as part of the experiment, does the 21 protocol require particular exports when certain flows are 22 in place at Vernalis and if increasing the exports to 23 implement recirculation would affect the veracity of the 24 experiment. 25 Did you understand that those were my questions, Mr. CAPITOL REPORTERS (916) 923-5447 10255 1 Boardman? 2 MR. BOARDMAN: Yes, I did. 3 MEMBER FORSTER: Did he answer? 4 MR. BOARDMAN: Yes. The answer is yes. 5 MR. BIRMINGHAM: I would like to talk for a few minutes 6 about the concept of makeup pumping. The period that we are 7 talking about, Mr. Boardman, is the April 15th through May 8 15th period, when exports will be reduced; is that correct? 9 MR. BOARDMAN: That's correct. 10 MR. BIRMINGHAM: It is during that period of time that 11 there is a proposal to recirculate water through increased 12 exports at the Tracy Pumping Plant? 13 MR. BOARDMAN: Yes. 14 MR. BIRMINGHAM: Again, the purpose of the reduction in 15 exports during that period is to provide some benefit to 16 salmon smolts? 17 MR. BOARDMAN: If you assume VAMP is the standard being 18 implemented, yes. 19 MR. BIRMINGHAM: Generally, when the export pumps are 20 operating, and here I am referring to the state pumps and to 21 the federal pumps, when the export pumps are operating in 22 the April 15th to May 15th period, water that is being 23 exported, water is released from storage upstream? 24 MR. BOARDMAN: In some years, but normally it is excess 25 flows to the Delta which excess flow meaning flood control CAPITOL REPORTERS (916) 923-5447 10256 1 releases, uncontrolled flows that are occurring into the 2 Delta, as a result of precip that is uncaptured by the dams 3 flowing into the rivers and so forth. So, basically, excess 4 flow into the Delta is the normal source of that water in 5 this period. 6 MR. BIRMINGHAM: We can characterize that water as 7 unstored flows? 8 MR. BOARDMAN: Yes. 9 MR. BIRMINGHAM: Now, if we are going to take advantage 10 of excess capacity to make up for that reduction in pumping 11 during the April 15th through May 15th period, in the months 12 of June, July or August, is the water that is going to be 13 pumped in June, July or August typically unstored flow or 14 flows released from storage? 15 MR. BOARDMAN: Typically, as you get towards August, 16 the likelihood is that that water is stored flow as it 17 releases -- forced releases out of the upstream reservoirs 18 to meet Delta requirements or export demands. 19 MR. BIRMINGHAM: So, in other words, in order to make 20 up the pumping that was foregone during April and May, 21 increased flows may be released from Folsom Reservoir? 22 MR. BOARDMAN: Yes. 23 MR. BIRMINGHAM: Or Shasta Reservoir? 24 MR. BOARDMAN: Yes. 25 MR. BIRMINGHAM: Or Oroville? CAPITOL REPORTERS (916) 923-5447 10257 1 MR. BOARDMAN: Yes. Or Trinity. 2 MR. BIRMINGHAM: Are there limitations imposed on the 3 ability of the Department of the Interior to make increased 4 releases of storage, say, from Shasta Reservoir? 5 MR. BOARDMAN: I am sorry, I missed the question. 6 MR. BIRMINGHAM: Are there limitations -- are there any 7 limitations on the ability of the Department of the Interior 8 to make increased releases from Shasta Reservoir during the 9 period of August in order to make up pumping in the Delta? 10 MR. BOARDMAN: During some years when we have below 11 carryover situation, it may be temperature control that they 12 have to meet along the upper Sacramento. They may have to 13 keep so much in storage to accommodate the maintenance of 14 that temperature that would, therefore, restrict the ability 15 to releasing that water for purpose of export. 16 MR. BIRMINGHAM: I am going to ask you to assume that 17 increased releases are made from upstream storage at CVP 18 facilities in August of year X. Then in year Y, the 19 following year, those storage facilities do not fill. 20 Do you understand the assumption? 21 MR. BOARDMAN: Yes. 22 MR. BIRMINGHAM: If the release of water in August was 23 to make up pumping foregone in April and May, would the 24 foregone pumping in April and May have an affect on water 25 supplies in year Y? CAPITOL REPORTERS (916) 923-5447 10258 1 MR. BOARDMAN: Yes. 2 MR. BIRMINGHAM: Why is that? 3 MR. BOARDMAN: The releases from the upstream storage 4 to replace the impacts that were caused in, say, April/May 5 to replace those impacts with upstream releases later in the 6 summer, that creates a hole, so to speak, in the upstream 7 reservoirs such that the reservoirs do not have enough 8 inflow such that they go to flood control releases. It is 9 that much less water that the Bureau can call upon to move 10 south of the Delta to meet the following year's allocation. 11 MR. BIRMINGHAM: On the same subject of makeup pumping, 12 Mr. Herrick asked you a question about the ability to 13 conduct premakeup pumping. Do you recall that question? 14 MR. BOARDMAN: Yes. 15 MR. BIRMINGHAM: Let's assume hypothetically that the 16 Department of the Interior conducts premakeup pumping in May 17 and June -- excuse me, let me restate the question. 18 Let's assume that the Department of the Interior 19 conducts premakeup pumping in December and January, and the 20 San Luis Reservoir fills in mid March. Would the makeup 21 pumping that occurred in December and January be true makeup 22 pumping? 23 MR. BOARDMAN: The only way that makeup pumping in 24 December and January could be a value and, therefore, be 25 called makeup or, excuse me, prepumping, is if the reservoir CAPITOL REPORTERS (916) 923-5447 10259 1 is not projected to fill, and then this prepumping would 2 take place. If the reservoir -- without the prepumping, if 3 the reservoir is projected to fill, any amount of prepumping 4 simply accelerates the data; it doesn't put more water south 5 of the Delta. Therefore, prepumping does not have -- does 6 not carry a benefit. It just simply causes the reservoir to 7 fill earlier. 8 MR. BIRMINGHAM: Let's take this year as an example. 9 In this year is San Luis Reservoir anticipated to fill? 10 MR. BOARDMAN: Yes. 11 MR. BIRMINGHAM: When is it expected that San Luis 12 Reservoir will fill? 13 MR. BOARDMAN: CVP share we are projecting by the last 14 part of March. 15 MR. BIRMINGHAM: Were there any AFRP measures imposed 16 during the fall of 1998 that reduced exports from the Tracy 17 Pumping Plant? 18 MR. BOARDMAN: Yes, there was a Measure 8. 19 MR. BIRMINGHAM: Let's assume hypothetically in January 20 there was pumping to make up that reduction in exports. 21 Would that increased pumping be a benefit to contractors 22 south of the Delta? 23 MR. BOARDMAN: It would be a benefit only that insures 24 that we fill the reservoir this year. There was some 25 question as to whether or not the makeup for that measure CAPITOL REPORTERS (916) 923-5447 10260 1 would be beneficial. But it was something that we were so 2 close to the edge of filling or not filling that we sought 3 direct point of diversion for the amount of water that we 4 lost during the implementation during mid year. 5 MR. BIRMINGHAM: But if -- 6 C.O. STUBCHAER: Excuse me, Ms. Whitney. 7 MS. WHITNEY: Could you state for the record -- could 8 you identify what measure Measure 8 is. 9 MR. BOARDMAN: Measure 8 was the experiment that -- 10 such that exports were held to 2,000 cfs during December 1st 11 through December 15th and some release of fish was made at 12 that time, and exports, as I said, were limited to 2,000 13 cfs. 14 And the second half of that experiment, of Measure 8, 15 was January 1st through the 15th. 16 MS. WHITNEY: That is Measure 8 of the AFRP; is that 17 correct? 18 MR. BOARDMAN: Yes, that's correct. 19 MR. BIRMINGHAM: Let's assume, Mr. Boardman, that 20 without that increased pumping San Luis Reservoir would have 21 filled. Would this increased pumping have been a benefit to 22 exports south of the Delta? 23 MR. BOARDMAN: No. 24 MR. BIRMINGHAM: Why not? 25 MR. BOARDMAN: Because we would have filled absent that CAPITOL REPORTERS (916) 923-5447 10261 1 prepumping. So, again, as I said, it just simply 2 accelerates the fill date of San Luis. 3 MR. BIRMINGHAM: It doesn't increase the quantity of 4 water available for allocation south of the Delta? 5 MR. BOARDMAN: That's correct. 6 MR. BIRMINGHAM: Mr. Howard asked you some questions 7 about the base case from which you were doing your 8 analysis. Just out of curiosity, did implementation of the 9 Bay-Delta Accord cost agricultural contractors south of the 10 Delta any water? 11 MR. BOARDMAN: Yes. 12 MR. BIRMINGHAM: Do you have an idea of how much water 13 implementation of the Bay-Delta Accord cost agricultural 14 contractors south of the Delta? 15 MR. BOARDMAN: My estimate is that with the Bay-Delta 16 Accord and, I guess, I also mentioned the Central Valley 17 Project Improvement Act, which increased in deliveries to 18 refuges south of the Delta, our long-term allocation, 19 through this allocation was 65, 70 percent. 20 MEMBER FORSTER: Less? 21 MR. BOARDMAN: 65, 70 percent of our contractor 22 supply. 23 MR. BIRMINGHAM: So, implementation of the standards 24 contained in the Bay-Delta Accord and the increased refuges 25 supplies to refuges south of the Delta resulted in a 30 to CAPITOL REPORTERS (916) 923-5447 10262 1 35 percent reduction in supplies for agricultural 2 contractors south of the Delta? 3 MR. BOARDMAN: Possibly not quite that much, because 4 even under D-1485 we weren't seeing a hundred percent of our 5 contract allocation. I am guessing here that it was 6 somewhere around 90 percent of our contract, long-term 7 contract. 8 MR. BIRMINGHAM: So the reduction would be 20 to 25 9 percent? 10 MR. BOARDMAN: That is in the ballpark. 11 MR. BIRMINGHAM: Is it the feeling of the San Luis and 12 Delta-Mendota Water Authority that they have already given a 13 significant amount of water towards achieving environmental 14 restoration in the Delta? 15 MR. BOARDMAN: Yes. 16 MR. BIRMINGHAM: I would also like to ask you some 17 questions about the hypothetical that is described on Page 4 18 of San Luis Delta-Mendota Water Authority Exhibit 51. Mr. 19 Howard asked you some questions about this, as did Mr. 20 Herrick. 21 Do you have a copy of Page 4 in front of you, Mr. 22 Boardman? 23 MR. BOARDMAN: No, I don't. 24 MR. BIRMINGHAM: Page 4 of South Delta Exhibit 51. 25 MR. BOARDMAN: Yes, I do have that in front of me. CAPITOL REPORTERS (916) 923-5447 10263 1 MR. BIRMINGHAM: Mr. Hildebrand describes a situation 2 in which the base flow at Vernalis is 5,000 cfs. The pulse 3 flow objective is 7,000 cfs. Is that correct? 4 MR. BOARDMAN: Yes. 5 MR. BIRMINGHAM: Under the existing 1995 Water Quality 6 Control Plan, in those circumstances how much water could be 7 exported from the Delta by the two projects? 8 MR. BOARDMAN: Two projects would be able to export 100 9 percent of the base flow which is 5,000 cfs. 10 MR. BIRMINGHAM: If the two projects were exporting the 11 base flow of 5,000 cfs, would there be excess capacity for 12 recirculation? 13 MR. BOARDMAN: There would be some. 14 MR. BIRMINGHAM: How much would that be? 15 MR. BOARDMAN: Our share, CVP share of the base flow 16 was 2,500 cfs, typically our conveyance capacity at that 17 time would be 42, so you are looking at 1,700. 18 MR. BIRMINGHAM: In order to export this additional 19 1,700 cfs, it would require an amendment of the export 20 limits contained in the 1995 Water Quality Control Plan? 21 MR. BOARDMAN: As I understand it, that is correct. 22 MR. BIRMINGHAM: I would like to talk to you a little 23 bit about your understanding of the 1995 Water Quality 24 Control Plan, and in particular questions that were asked of 25 you by Mr. Herrick concerning outflow from the Delta. CAPITOL REPORTERS (916) 923-5447 10264 1 Mr. Herrick asked you a series of questions about 2 whether increased outflow from the Delta constituted waste, 3 and you said if it was over and above the outflow standard, 4 then in your view that would be waste. 5 Do you recall saying that? 6 MR. BOARDMAN: Yes. 7 MR. BIRMINGHAM: Then Mr. Herrick said, elicited from 8 you a response, that some people might not view increased 9 outflow as waste. Do you recall that? 10 MR. BOARDMAN: Yes. 11 MR. BIRMINGHAM: Now, Mr. Boardman, is it your 12 understanding that through the adoption of water quality 13 standards the State Water Resources Control Board adopts 14 standards that in its judgment will protect the beneficial 15 uses of water in the Delta? 16 MR. BOARDMAN: Yes. 17 MR. BIRMINGHAM: If the State Board has established a 18 particular outflow standard, that is the quantity of 19 outflow that the State Board has determined is required to 20 protect beneficial uses of the subject water? 21 MR. BOARDMAN: That's correct. 22 MR. BIRMINGHAM: If there is outflow that is in excess 23 of the standard, that is outflow which is in excess of the 24 what the State Board has determined to protect the 25 beneficial uses of the subject water? CAPITOL REPORTERS (916) 923-5447 10265 1 MR. BOARDMAN: Yes. 2 MR. BIRMINGHAM: Now, when you gave your opinion that 3 it would be wasteful to have outflow over and above the 4 outflow standard, were you basing your opinion on the fact 5 -- in part basing your opinion on the fact that the Board 6 through the adoption of the outflow standard determined that 7 that was what was required to protect the beneficial uses? 8 MR. BOARDMAN: Yes. 9 MR. BIRMINGHAM: You were asked a series of questions 10 by Mr. Herrick about historic makeup pumping by the Bureau. 11 Do you recall those questions? 12 MR. BOARDMAN: Yes. 13 MR. BIRMINGHAM: Over the course of the last three 14 years how would you characterize the efforts required on the 15 part of the Bureau of Reclamation to institute makeup 16 pumping? 17 MR. BOARDMAN: It is a great amount of effort. 18 MR. BIRMINGHAM: Could you explain this further. 19 MR. BOARDMAN: In order to do any type of makeup 20 pumping, as I described earlier, there is a small window of 21 time, three months or so, that we could feasibly move water 22 south of the Delta to make up impacts as a result of, say, 23 the recirculation. And you not only have to have the water 24 upstream to release, but you also have to have the Delta 25 conditions that are adequate to get that water through the CAPITOL REPORTERS (916) 923-5447 10266 1 Delta. As I mentioned, in June we have 35 percent export 2 inflow ratio. That is oftentimes a controlling factor in 3 moving water south of the Delta for makeup pumping, and in 4 July and August it is very typical to have all pumping 5 capacity already taken up by just meeting the existing 6 allocation of state and federal contractors. 7 MR. BIRMINGHAM: In order to conduct makeup pumping is 8 it also necessary to obtain the approval of federal or state 9 fish and wildlife agencies? 10 MR. BOARDMAN: Yes. 11 MR. BIRMINGHAM: Is that approval always forthcoming? 12 MR. BOARDMAN: Occasionally. 13 MR. BIRMINGHAM: Is it sometimes difficult to obtain 14 approval of either a state or a federal fish and wildlife 15 agency in order to conduct makeup pumping? 16 MR. BOARDMAN: Yes, it is. 17 MR. BIRMINGHAM: Are there any circumstances in the 18 last three years when it has been difficult to obtain the 19 approval of a state or federal fish and wildlife agency to 20 conduct makeup pumping? 21 MR. BOARDMAN: The year that stands out most in my mind 22 might be '97 when things were drier than what we have seen 23 in the last three or four years. In addition to fishery 24 agencies, there could be a water quality standard. And I 25 remember in '97 we sought relaxation of one of those water CAPITOL REPORTERS (916) 923-5447 10267 1 quality standards to move more water south of the Delta, and 2 I don't believe that happened. That was another group that 3 we had to deal with or jump through, I guess. 4 MR. BIRMINGHAM: So having the ability to conduct 5 makeup pumping under applicable regulations doesn't insure 6 that you will be able to conduct the makeup pumping 7 particularly in drier years? 8 MR. BOARDMAN: That's correct. 9 MR. BIRMINGHAM: Has the South Delta Water Agency ever 10 objected to Interior or the Department of Water Resources 11 conducting makeup pumping? 12 MR. BOARDMAN: Yes. 13 MR. BIRMINGHAM: In what circumstances has South Delta 14 Water Agency objected to makeup pumping? 15 MR. BOARDMAN: They are concerned for low water levels 16 caused as a result of the additional pumping that may take 17 place, which is basically the situation that we are in right 18 now. DWR is having to put together a mitigation plan to 19 assure there is no impact as a result of the joint point 20 diversion that we have been seeking. 21 MR. BIRMINGHAM: Absent the DWR's ability to develop a 22 mitigation plan, will the Bureau and the Department of Water 23 Resources be able to conduct makeup pumping? 24 MR. BOARDMAN: Yes. Not makeup -- well, it was 25 actually joint point diversion. I wouldn't call it makeup CAPITOL REPORTERS (916) 923-5447 10268 1 pumping in the sense of moving water. Let me back up. 2 It is specifically 17,000 feet and we were wanting to 3 move that water south of the Delta to insure that we would 4 fill the reservoir this year. 5 MR. BIRMINGHAM: When would that 17,000 acre-feet 6 otherwise have been exported from the Delta? 7 MR. BOARDMAN: It would have been water that we would 8 have pumped during the implementation of Measure 8 during 9 the December/January time. 10 MR. BIRMINGHAM: If the Department of Water Resources 11 is unable to develop a mitigation plan will 17,000 acre-feet 12 be exported from the Delta? 13 MR. BOARDMAN: No. 14 MR. BIRMINGHAM: I have no further questions. 15 C.O. STUBCHAER: Mr. Birmingham. 16 Any recross? 17 Mr. Nomellini and Mr. Herrick. 18 C.O. STUBCHAER: Mr. Herrick. 19 MR. HERRICK: No three-headed coins, three-sided. 20 C.O. STUBCHAER: I juggled it in my mind. You will be 21 followed by Mr. O'Laughlin and Mr. Nomellini. 22 MR. HERRICK: Thank you, Mr. Chairman. Sorry. 23 C.O. STUBCHAER: Nothing to be sorry for. 24 ---oOo--- 25 // CAPITOL REPORTERS (916) 923-5447 10269 1 // 2 RECROSS-EXAMINATION OF WESTLANDS WATER DISTRICT AND 3 SAN LUIS AND DELTA-MENDOTA WATER AUTHORITY REBUTTAL 4 BY SOUTH DELTA WATER AGENCY 5 BY MR. HERRICK 6 MR. HERRICK: Mr. Boardman, I am a little confused. 7 You said that if San Luis Reservoir is going to fill before 8 the April pulse flow, then makeup pumping doesn't do any 9 good? 10 MR. BOARDMAN: Yes. 11 MR. HERRICK: Why is the Bureau trying to seek makeup 12 pumping before April/May this year? 13 MR. BOARDMAN: It is an amount that will insure that we 14 fill the reservoir. It may be after the fact that we looked 15 back and said that we didn't need it. But it is something 16 that we wanted to accomplish. We could justify it because 17 it was related to the fishery action. We decided to pursue 18 it because we are so close in whether or not we fill the 19 reservoir. 20 MR. HERRICK: If the reservoir fills in spite of that, 21 that makeup pumping is not making anything up then? 22 MR. BOARDMAN: It's -- yes, you could say that. 23 MR. HERRICK: Of course, the precondition to the makeup 24 pumping not being worthwhile is that San Luis will fill; is 25 that correct? CAPITOL REPORTERS (916) 923-5447 10270 1 MR. BOARDMAN: Yes. 2 MR. HERRICK: If it is not going to fill that year, 3 then makeup pumping will provide a benefit? 4 MR. BOARDMAN: That's correct. 5 MR. HERRICK: Associated with that is the fact that the 6 state side may not fill if the federal side is; is that 7 correct? 8 MR. BOARDMAN: It is a possibility. 9 MR. HERRICK: In a circumstance like that, then, it 10 would be possible to somehow coordinate operations so there 11 is a benefit from using the state's half, even though the 12 federal half is full? 13 MR. BOARDMAN: If storage was available, yes. 14 MR. HERRICK: Wouldn't you agree that the only year 15 that makeup was not approved was '98 not '97? Does that jog 16 your memory? 17 MR. BOARDMAN: You may be right. I'm looking here at 18 the recent history on this. 19 MR. HERRICK: Have you reviewed the correspondence that 20 the Board received and sent regarding the request for makeup 21 pumping in the last three years? 22 MR. BOARDMAN: Repeat that question. 23 MR. HERRICK: Have you reviewed the correspondence to 24 and from the Board regarding the makeup pumping requests in 25 the last three year? CAPITOL REPORTERS (916) 923-5447 10271 1 MR. BOARDMAN: Intermittently. 2 MR. HERRICK: Did those include the South Delta Water 3 Agency comments? 4 MR. BOARDMAN: Yes. 5 MR. HERRICK: Are you familiar with South Delta Exhibit 6 26, that includes some of that correspondence? 7 MR. BOARDMAN: I don't have it. I didn't bring it 8 today. Not off the top of my head. 9 MR. HERRICK: Are you aware of any instance where the 10 South Delta's complaints resulted in denial of makeup 11 pumping? 12 MR. BOARDMAN: Again, my recollection is limited. So I 13 would have to say that I can't recall. 14 MR. HERRICK: You were talking about the process it 15 takes to get approval. 16 Do you know of any year where Fish and Wildlife Service 17 prevented the Bureau from doing makeup? 18 MR. BOARDMAN: I don't recall specifically. 19 MR. HERRICK: Do you recall of any year where the 20 Department of Fish and Game prevented the Bureau from 21 accomplishing any makeup pumping? 22 MR. BOARDMAN: I can't recall. 23 MR. HERRICK: Do you view the requirement to make 24 export -- do you view any requirement to ensure that export 25 pumping for makeup purposes does not harm South Delta as CAPITOL REPORTERS (916) 923-5447 10272 1 bad? 2 MR. BOARDMAN: Sorry, could you repeat that? 3 MR. HERRICK: That was horrible, wasn't it, and it was 4 the second try, too. 5 C.O. STUBCHAER: Close to lunch time. 6 MR. HERRICK: Yes. 7 In your redirect you discussed that the South Delta 8 Water Agency has objected to various pumping proposals in 9 the past three years; is that correct? 10 MR. BOARDMAN: That's correct. 11 MR. HERRICK: I will represent to you that 95-6 and 12 also the current 98-9 put some sort of requirement on makeup 13 pumping that it not injure other legal users of water. 14 MR. BOARDMAN: That is my understanding, yes. 15 MR. HERRICK: Are you against any such protection for 16 South Delta? 17 MR. BOARDMAN: No. 18 MR. HERRICK: You were asked on redirect about the 19 waste of water if it doesn't get exported by the federal 20 pumps. I would like to explore that just a bit. 21 You based your answers on redirect that the adoption of 22 standards by the Board equal the level of protection that is 23 acceptable. Is that generally true? 24 MR. BOARDMAN: That's correct. 25 MR. HERRICK: Would you agree that is the same case for CAPITOL REPORTERS (916) 923-5447 10273 1 a water quality standard for salinity? By that I mean, if 2 you actually were -- had a condition that was better than 3 the standard, do you think there would be no benefit for 4 that? 5 MR. BIRMINGHAM: I am going to object on the ground the 6 question is ambiguous. 7 C.O. STUBCHAER: Try the question again. 8 MR. HERRICK: Certainly. 9 You stated that adoption by the Board equals an 10 adequate protection of beneficial uses; is that correct? 11 MR. BIRMINGHAM: Objection. Misstates the testimony. 12 MR. HERRICK: I don't think that needs a comment. You 13 can rule on that. 14 C.O. STUBCHAER: I understand the question. I thought 15 it was pretty close to what the testimony was. 16 Can you answer the question? 17 MR. BOARDMAN: Yes. 18 MR. HERRICK: Does that hold true for all standards 19 that the Board is trying to adopt or implement through the 20 '95 plan? 21 MR. BOARDMAN: I think maybe with respect to water 22 quality that there would be some benefit and some exceedance 23 of that standard. 24 MR. HERRICK: If you improved on the standard, there 25 might be some benefit to the beneficial use? CAPITOL REPORTERS (916) 923-5447 10274 1 MR. BOARDMAN: That would be my interpretation. 2 MR. HERRICK: But you don't believe that is in the 3 realm of possibility for the Delta outflow standards? 4 MR. BOARDMAN: I believe that the Delta outflow 5 requirements were probably established with some historic 6 analysis as to what takes place as far as diversions, and 7 that standard reflects that diversion activity. 8 So, in meeting that standard you are, in fact, meeting 9 the diversion requirements associated with that. 10 MR. HERRICK: If, of course, the water was not exported 11 but was used by someone else in the area, that wouldn't be a 12 waste of water, would it? 13 MR. BOARDMAN: Not as I understand. 14 MR. HERRICK: Mr. Birmingham asked you a couple 15 questions about Mr. Hildebrand's hypothetical on Page 4 of 16 South Delta 51. Do you recall those questions? 17 MR. BOARDMAN: What was that, what part of South Delta 18 51? 19 MR. HERRICK: Page 4, Mr. Hildebrand's example of -- 20 MR. BOARDMAN: Oh, yeah. I am sorry, yes. 21 MR. HERRICK: In those questions you were talking about 22 the '95 plan limitation on exports of a hundred percent of 23 the San Joaquin River system; is that correct? 24 MR. BOARDMAN: Yes. 25 MR. HERRICK: That is not how the projects operate, is CAPITOL REPORTERS (916) 923-5447 10275 1 it? 2 MR. BOARDMAN: Not currently, no. 3 MR. HERRICK: They operate according to the biological 4 opinion limitations contained in the Delta Smelt Opinion; is 5 that correct? 6 MR. BOARDMAN: You look at the last few years that they 7 have been operating through VAMP. 8 MR. HERRICK: Do you know whether or not Vamp is 9 somehow in violation or contrary to the biological opinion? 10 MR. BOARDMAN: I couldn't answer that. 11 MR. HERRICK: In the chart I slowed you from the VAMP, 12 it had export limitations and flows. Do you recall that? 13 MR. BOARDMAN: Yes. 14 MR. HERRICK: One of those export limitations was 1,500 15 cfs. Do you recall that? 16 MR. BOARDMAN: Yes. 17 MR. HERRICK: Do you recall that that limitation was on 18 three different flows? 19 MR. BOARDMAN: That's correct. 20 MR. HERRICK: Do you recall one of those flows was 21 7,000 cfs? 22 MR. BOARDMAN: Yes. 23 MR. HERRICK: So, in at least that instance the VAMP 24 limitation is actually lower or within the biological 25 opinion limitation of two-to-one? CAPITOL REPORTERS (916) 923-5447 10276 1 MR. BOARDMAN: That's correct. 2 MR. HERRICK: If we are going to examine how operations 3 will occur, we should either look at VAMP, which has been 4 going on, or the biological opinion; is that correct? 5 MR. BOARDMAN: Maybe the -- well, yeah -- I would think 6 that maybe a legal argument could be made that we could 7 follow the Accord to some extent. I am not sure exactly how 8 that comes in. 9 MR. HERRICK: Of course, the 1995 Water Quality Control 10 Plan limitations of 100 percent are used to calculate the 11 makeup pumping of the Bureau, isn't it? 12 MR. BOARDMAN: Yes. 13 MR. HERRICK: Even though they wouldn't be able to pump 14 a hundred percent because of the biological opinion? 15 MR. BOARDMAN: Right. 16 MR. HERRICK: So, if we are going to analyze the 17 possibility of recirculation, we should look at the real 18 world of VAMP or the biological opinion. Would you agree 19 with that? 20 MR. BOARDMAN: Yes. 21 MR. HERRICK: Whether or not you do additional pumping 22 in order to accomplish recirculation, doesn't change what 23 the hundred percent would have been, does it? 24 MR. BOARDMAN: That's correct. 25 MR. HERRICK: Just to highlight, again, the questions CAPITOL REPORTERS (916) 923-5447 10277 1 regarding the window for makeup pumping. Of course, those 2 windows don't apply if the recirculation pumping during the 3 pulse flow is sufficient; is that correct? 4 MR. BOARDMAN: Yes. 5 MR. HERRICK: So, if you are recirculating during the 6 pulse flow and you are not interfering with what would have 7 been exported, and you are within the biological opinion, 8 you don't need to worry about what windows may exist for 9 makeup pumping; is that correct? 10 MR. BOARDMAN: That's correct. 11 MR. HERRICK: Of course, depending on whether San Luis 12 is going to fill in the winter, you may or may not be able 13 to do makeup pumping at other times in the window that you 14 discussed; is this correct? 15 MR. BOARDMAN: Repeat that question. 16 MR. HERRICK: The window of opportunity for makeup 17 pumping you discussed I believe was June, July or August? 18 MR. BOARDMAN: Right. 19 MR. HERRICK: So, of course if you need to do makeup 20 pumping to cure any adverse effects of recirculation and 21 there is a winter where San Luis is not filling, then that 22 problem of not being able to accomplish the makeup doesn't 23 exist; is that correct? 24 MR. BOARDMAN: It doesn't exist in that extent. But if 25 that impact -- if the water that you are doing the makeup CAPITOL REPORTERS (916) 923-5447 10278 1 from -- the makeup pumping that is occurring, if that is as 2 a result of something that decreased the allocation for 3 that year, that doesn't alleviate the impact the allocation 4 caused by the action that requires the makeup pumping to 5 that effect. Makes sense. 6 MR. HERRICK: I guess the bottom line is that we can 7 come up with scenarios where you can and we can come up with 8 scenarios where you can't. Would you agree with that? 9 MR. BOARDMAN: Yes. 10 MR. HERRICK: Now, some of the questions on redirect 11 dealt with the need to make upstream releases in order to 12 accomplish -- and help me on this -- was in order to 13 accomplish recirculation or makeup pumping? 14 MR. BOARDMAN: Makeup pumping. 15 MR. HERRICK: As I understand your answers, if somebody 16 has to make upstream releases, it decreases the water that 17 year or maybe a following year. There is less available for 18 users? 19 MR. BOARDMAN: That's correct. 20 MR. HERRICK: Are you familiar -- isn't that South 21 Delta's argument against the San Joaquin River Agreement? 22 MR. BOARDMAN: I guess if you -- are you referring then 23 to the releases that the San Joaquin folks are releasing 24 and, therefore, taking away fall or late summer flows? 25 MR. HERRICK: Correct. CAPITOL REPORTERS (916) 923-5447 10279 1 MR. BOARDMAN: I could understand South Delta's 2 argument. I don't know if there is a comparison there, 3 though. Because we -- that reduction in storage is 4 affecting our allocation. Whereas, it is -- as I 5 understand, it is not affecting South Delta Water Agency's 6 allocation, per se, just exacerbating the water quality 7 problem that exists. 8 MR. HERRICK: You would agree, then, that that problem 9 that we just discussed, it may not be that year or a 10 following year if flood waters don't replace that? 11 MR. BOARDMAN: That's true. 12 MR. HERRICK: Now, there isn't any portion of -- that's 13 argumentative. 14 Do you believe that any portion of Mr. Hildebrand's 15 proposal in South Delta 51 contemplates or seeks additional 16 upstream reservoir releases in order to accomplish 17 recirculation? 18 MR. BOARDMAN: Not that I was able to detect. 19 MR. HERRICK: Of course, if makeup pumping became 20 necessary in order to cure adverse effects of makeup 21 pumping, and you were able to do that in winter months, the 22 winter months are typically a time of excess Delta flows, 23 I'll say, that aren't releases from reservoir storage; is 24 that correct? 25 MR. BOARDMAN: That's correct. There is also limited CAPITOL REPORTERS (916) 923-5447 10280 1 pumping capacity during that time. 2 MR. HERRICK: So, certainly, again, we can come up with 3 scenarios where it works and scenarios where it doesn't work? 4 MR. BOARDMAN: That is true. 5 MR. HERRICK: Mr. Boardman, I don't mean to be 6 facetious, but you were asked some questions about the 7 validity about data points gained under VAMP if 8 recirculation occurs. Do you recall those? 9 MR. BOARDMAN: Yes. 10 MR. HERRICK: Again, I don't mean to be impolite or 11 anything, but you are not a biologist, are you? 12 MR. BOARDMAN: No. 13 MR. HERRICK: Would you consider yourself an expert on 14 the VAMP biology? 15 MR. BOARDMAN: No, I am not. 16 MR. HERRICK: Generally speaking, though, since you did 17 answer those questions, what the VAMP program seeks to do is 18 limit certain conditions and obtain data points in order to 19 make a conclusion? 20 MR. BOARDMAN: As I understand it. 21 MR. HERRICK: Do you have any understanding as to how 22 the ability to make conclusions would be affected if the 23 data gained, instead of being here, are here because of 24 recirculation? 25 MR. BOARDMAN: No, I do not. CAPITOL REPORTERS (916) 923-5447 10281 1 MR. HERRICK: And, of course, the data gathered for the 2 last three years is all high flows and a very small portion 3 of the potential effects that may be occurring depending of 4 flow changes? 5 MR. BOARDMAN: That's correct. 6 MR. HERRICK: As I lead into that, just for 7 clarification, if you will excuse me, you were asked some 8 questions about the biological opinion and expiration of the 9 Delta Accord. Let me see if you agree with this scenario of 10 the in-place regulatory restrictions. 11 There used to be a biological opinion for Delta smelt 12 prior to the 1984 Delta Accord; is that correct? 13 MR. BOARDMAN: I am not aware of that. 14 MR. HERRICK: Through the 1989 Delta Accord process, 15 various -- 16 MR. BIRMINGHAM: Excuse me, Mr. Herrick. You are 17 saying '89. Do you mean the 1994? 18 MR. HERRICK: I am sorry. Did I say "'84"? I mean 19 '94. 20 Thank you. 21 MR. BOARDMAN: I am a little bit more aware of that 22 one. 23 MR. HERRICK: That explains the answer, sorry. 24 Let me do it again. Are you aware of any biological 25 opinion for Delta smelt that predated the 1994 Delta Accord? CAPITOL REPORTERS (916) 923-5447 10282 1 MR. BOARDMAN: No, I am not. 2 MR. HERRICK: Through the 1994 Delta Accord process 3 various interests, regulatory agencies got together and 4 hammered out some sort of agreement for how to operate the 5 Delta; is that correct? 6 MR. BOARDMAN: That was my understanding. 7 MR. HERRICK: Then, because it was a new operation, 8 they then consulted with U.S. Fish and Wildlife Service and 9 asked them for a biological opinion; is that correct? 10 MR. BOARDMAN: Sounds right. 11 MR. HERRICK: The biological thing issued said: if you 12 operate as you proposed, we don't find that you will further 13 harm the endangered species; that correct? 14 MR. BOARDMAN: From a modeler's perspective, that is my 15 understanding. 16 MR. HERRICK: Again, I am not trying to test your legal 17 knowledge. So, if the Delta Accord evaporate,s, the, 18 biological opinion is still in existence, correct? 19 MR. BOARDMAN: As I understand it, yes. 20 MR. HERRICK: Maybe I didn't understand your answers. 21 Is there any affect on limitations for Delta exports if the 22 Delta Accord is no longer in force? 23 MR. BOARDMAN: Assuming that we have the Accord as our 24 base and the biological opinion is more restrictive during 25 the pulse flow period, then our exports would be reduced CAPITOL REPORTERS (916) 923-5447 10283 1 additionally because of the biological opinion coming into 2 control, I guess. 3 MR. HERRICK: It is your understanding that the Delta 4 Accord is prevailing at this time, not the biological 5 opinion? 6 MR. BOARDMAN: That is my understanding. That is the 7 way I treated the issue. 8 MR. HERRICK: Of course, if there is some new 9 operational plan that results from those hearings, somebody 10 probably will have to reconsult with the Fish and Wildlife 11 Service for a new biological opinion, correct? 12 MR. BOARDMAN: I assume it is possible. 13 MR. HERRICK: Nobody knows whether they would agree to 14 that or not; that is pure speculation? 15 MR. BOARDMAN: Yes. 16 MR. HERRICK: If the Board will give me one moment, I 17 believe I am done, but let me check. 18 This is all I have. 19 Thank you, Mr. Boardman. 20 Thank you, Mr. Chairman. 21 C.O. STUBCHAER: Mr. Herrick. 22 We will take our lunch break until 1:00 p.m. 23 (Luncheon break taken.) 24 ---oOo--- 25 CAPITOL REPORTERS (916) 923-5447 10284 1 AFTERNOON SESSION 2 ---oOo--- 3 C.O. STUBCHAER: Good afternoon. We will reconvene. 4 Mr. O'Laughlin. 5 ---oOo--- 6 RECROSS-EXAMINATION OF WESTLANDS WATER DISTRICT AND 7 SAN LUIS AND DELTA-MENDOTA WATER AUTHORITY REBUTTAL 8 BY SAN JOAQUIN RIVER GROUP AUTHORITY 9 BY MR. O'LAUGHLIN 10 MR. O'LAUGHLIN: Mr. Boardman, Tim O'Laughlin. I 11 represent the San Joaquin River Group Authority and the 12 member agencies therein. 13 I'm just going to focus on some minor areas real 14 quick. Number one, are you familiar as to whether or not 15 the San Joaquin River Agreement was a negotiated agreement? 16 MR. BOARDMAN: I believe it was. 17 MR. O'LAUGHLIN: The San Luis Delta-Mendota Water 18 Authority as well as the Westlands Water District 19 participated in those negotiations; is that correct? 20 MR. BOARDMAN: That's correct. 21 MR. O'LAUGHLIN: As part of the negotiations in 22 arriving at an agreement, certain parties gave up certain 23 things and got certain things; is that correct? 24 MR. BOARDMAN: That's correct. 25 MR. O'LAUGHLIN: Ms. Forster asked a very interesting CAPITOL REPORTERS (916) 923-5447 10285 1 question, I thought, whether or not the San Joaquin River 2 Agreement could be reconciled with the recirculation plan. 3 Do you have an opinion on that? 4 MR. BOARDMAN: Our opinion would be that we -- well, I 5 am not sure if I am answering your question. Could you 6 repeat the question? 7 MR. O'LAUGHLIN: Sure. 8 Do you have an opinion as to whether or not the 9 recirculation plan can be reconciled with the San Joaquin 10 River Agreement proposal with VAMP? 11 MR. BOARDMAN: I guess a reconciliation doesn't come to 12 mind at this point. 13 MR. O'LAUGHLIN: You are not a biologist, are you? 14 MR. BOARDMAN: No, I am not. 15 MR. O'LAUGHLIN: Do you know if any biologist has 16 agreed to a study plan which would include increasing 17 exports from the South Delta in order to have 18 recirculation? 19 MR. BOARDMAN: No. 20 MR. O'LAUGHLIN: Do you know if any biologist has 21 agreed that the recirculation on top of the base flows in 22 other export -- excuse me, on top of base exports would 23 provide equivalent protection to San Joaquin River fall-run 24 chinook salmon as provided for in the 1995 Water Quality 25 Control Plan? CAPITOL REPORTERS (916) 923-5447 10286 1 MR. BOARDMAN: None that I am aware of. 2 MR. O'LAUGHLIN: On Page 4 there was a question on Mr. 3 Hildebrand's testimony in regards to the export rate of 4 1,500 cfs. Do you know has any export contractor agreed 5 with South Delta Water Agency or any other agency to reduce 6 exports in order to make the recirculation plan work? 7 MR. BOARDMAN: Not that I am aware of. 8 MR. O'LAUGHLIN: Isn't it true that under the Bay-Delta 9 Accord that the Accord has no-net loss? 10 MR. BOARDMAN: That's true. 11 MR. O'LAUGHLIN: Does the Delta Smelt Biological 12 Opinion has the same requirement of no-net loss to the 13 exporters? 14 MR. BOARDMAN: None that I am aware of. 15 MR. O'LAUGHLIN: You were asked an interesting question 16 by Mr. Herrick about CVP facilities and how releases of 17 water from CVP facilities were similar to releases of water 18 from upstream tributaries under the San Joaquin River 19 Agreement. 20 Do you remember those questions? 21 MR. BOARDMAN: Yes, I do. 22 MR. HERRICK: Is it -- 23 C.O. STUBCHAER: I don't think recross can cross on the 24 recross. I think it is cross on redirect. 25 MR. O'LAUGHLIN: I am just going to clarify some CAPITOL REPORTERS (916) 923-5447 10287 1 questions that he asked. They go to the same underlying 2 redirect that was done by Mr. Birmingham. It is just a 3 theme on a question. 4 C.O. STUBCHAER: Mr. Herrick. 5 MR. HERRICK: I don't think that answers the 6 objection. There is a limitation on recross. 7 C.O. STUBCHAER: You are correct. Recross should be 8 limited to the redirect. 9 MR. O'LAUGHLIN: Okay. Let me ask it this way: Isn't 10 it true that under the San Joaquin River Agreement that 11 South Delta Water Agency does not have a storage entitlement 12 from the upstream tributaries on the Merced in the Tuolumne 13 Rivers? 14 MR. BOARDMAN: As I understand it, that's correct. 15 MR. O'LAUGHLIN: When you take water from upstream CVP 16 storage facilities, as a contractor you would look at that 17 as a contractual right under your agreement with the Bureau 18 to receive water from that facility; is that correct? 19 MR. BOARDMAN: That's correct. 20 MR. O'LAUGHLIN: Do you know if South Delta Water 21 Agency has a contractual right with any upstream tributary 22 on the San Joaquin River, other than the Stanislaus, to 23 receive water from those facilities? 24 MR. BOARDMAN: None that I am aware of. 25 MR. O'LAUGHLIN: No further questions. CAPITOL REPORTERS (916) 923-5447 10288 1 Thank you. 2 C.O. STUBCHAER: Thank you, Mr. O'Laughlin. 3 Mr. Nomellini. 4 ---oOo--- 5 RECROSS-EXAMINATION OF WESTLANDS WATER DISTRICT AND 6 SAN LUIS AND DELTA-MENDOTA WATER AUTHORITY REBUTTAL 7 BY CENTRAL DELTA PARTIES 8 BY MR. NOMELLINI 9 MR. NOMELLINI: Thank you, Mr. Chairman. 10 Dante John Nomellini for Central Delta Parties. 11 Mr. Boardman, are you aware that the 1995 Water Quality 12 Control Plan objective for Delta outflow provides minimum 13 monthly average flows? 14 MR. BOARDMAN: As I understand it, that's correct. 15 MR. NOMELLINI: You had indicated in your redirect 16 examination by Mr. Birmingham that that was the basis for 17 your conclusion that water, additional water, over and above 18 the objectives was not a beneficial use of water? 19 MR. BOARDMAN: Yes. 20 MR. NOMELLINI: Would you agree that if, in fact, those 21 objectives are minimum, that the objectives themselves do 22 not establish what the maximum amount would constitute a 23 beneficial use would be? 24 MR. BOARDMAN: Yes. 25 MR. NOMELLINI: Now, in your testimony on redirect you CAPITOL REPORTERS (916) 923-5447 10289 1 talked about the percentages of water available to your 2 employer or client. Were you talking about Westlands? 3 MR. BOARDMAN: San Luis Delta-Mendota Water Authority, 4 the ag water service contractor. 5 MR. NOMELLINI: You indicated that this was -- and 6 perhaps I don't understand your testimony yet. But you 7 indicated that there was a reduction of 20 to 25 percent. 8 Do you recall that? 9 MR. BOARDMAN: Yes, I do. 10 MR. NOMELLINI: What were you testifying to in terms of 11 the reduction from? 12 MR. BOARDMAN: Under a base condition, assuming D-1485 13 is in place. 14 MR. NOMELLINI: So with D-1485 in place it is your 15 testimony that the Delta Accord is causing or has caused a 16 reduction of 20 to 25 percent? 17 MR. BOARDMAN: That's correct. 18 MR. NOMELLINI: Have you taken into consideration the 19 impact of the biological opinions? 20 MR. BOARDMAN: That is assuming that the existing 21 biological opinions were incorporated into the Accord. 22 MR. NOMELLINI: So with the biological opinions 23 applicable through the Accord versus D-1485, there would be 24 a 20, 25 percent reduction in deliveries to the San Luis 25 Delta-Mendota Canal Authority partners? CAPITOL REPORTERS (916) 923-5447 10290 1 MR. BOARDMAN: To ag service contractors within the 2 authority. 3 MR. NOMELLINI: In your direct testimony you stated 4 that, and I think you were talking about the same parties, 5 that you would get 75 percent of the allocation and the only 6 way to get above that was with flood releases from Friant to 7 the Mendota Pool for release to the exchange contractors? 8 MR. BOARDMAN: That's correct. 9 MR. NOMELLINI: Do you recall that? 10 That 75 percent allocation that you talked about in 11 your direct, is that what your allocation would have been 12 under D-1485? 13 MR. BOARDMAN: No. 14 MR. NOMELLINI: What is that 75 percent allocation? 15 MR. BOARDMAN: That is the maximum amount of water that 16 could be allocated to the ag service contractors under the 17 Bay-Delta Accord. 18 MR. NOMELLINI: That is where we are today? 19 MR. BOARDMAN: Yes. I might add, that maximum amount 20 is the amount that they could allocate to the ag service 21 contractors without the help of any flood releases from 22 Friant. 23 MR. NOMELLINI: So that prior to the Delta Accord, 24 then, would have been D-1485 alone which would have 25 constituted a hundred percent of your allocation? CAPITOL REPORTERS (916) 923-5447 10291 1 MR. BOARDMAN: Under D-1485 by the time you factored in 2 the 75-year hydrology, you would be looking at 90 percent 3 supplied to ag service contractors under that standard. 4 MR. NOMELLINI: So 90 to 75 would be 15 percent rather 5 than 20 to 25 percent? 6 MR. BOARDMAN: No. It is the 90-percent average 7 allocation. That doesn't get into the distinction as to how 8 much of that allocation could occur with or without flood 9 releases. Under D-1485, ag service allocation long term 10 would be about 90 percent. Under the Bay-Delta Accord, that 11 same ag service allocation, long term, would be 65 to 70 12 percent. That is -- those are the numbers that you should 13 be comparing. When you talk about 75-percent supply, that 14 is only a mention of the allocation that would occur -- a 15 maximum allocation that would occur without any help of 16 Friant releases, kind of separate. 17 MR. NOMELLINI: Is that based on the present level of 18 the development of facilities? 19 MR. BOARDMAN: Yes, 1995 level of demand. 20 MR. NOMELLINI: In redirect there was a reference to 21 Table 6 of the Volume IV of the Draft Environmental Impact 22 Report. Do you have that with you? 23 MR. BOARDMAN: Table 6? 24 MR. NOMELLINI: Excuse me, Table V-1. 25 MR. BOARDMAN: Yes, right here. CAPITOL REPORTERS (916) 923-5447 10292 1 MR. NOMELLINI: On Page V-3. 2 If you look at Table V-1 and the category of other CVP 3 and DMC ag diversions, is that the category that most of 4 your people fall under? 5 MR. BOARDMAN: On the San Luis unit, which is probably 6 about -- of the ag service contract that exists, which is 7 roughly 1.8 million, about a little over -- I think it is 8 probably about 60 percent of that, 1.8 million contract 9 demand falls within the San Luis unit. And the remainder of 10 that ag service demand falls into the CVP, other CVP and DMC 11 ag. 12 MR. NOMELLINI: Let's take the San Luis unit. You 13 would agree, would you not, that Alternative 6, which is the 14 recirculation analyzed by the Board, and I understand the 15 testimony is clear that it is not exactly what the South 16 Delta has proposed, under Alternative 6 doesn't this Table 17 V-1 show that you do the best under Alternative 6 of all the 18 other alternatives? 19 MR. BIRMINGHAM: Objection. Goes beyond the scope of 20 redirect. 21 C.O. STUBCHAER: Can you refer to within the redirect? 22 MR. NOMELLINI: I thought you went back over this 23 table. 24 MR. BIRMINGHAM: My only question related to this table 25 was related to the fact that his earlier testimony about the CAPITOL REPORTERS (916) 923-5447 10293 1 table, was that the assumptions in the table about the 2 exchange contractors taking reductions is inconsistent with 3 the exchange contractors' contract. That was the only 4 question I asked about this table on redirect. 5 C.O. STUBCHAER: There was discussion, of course, on 6 direct. 7 MR. NOMELLINI: I thought he reopened this. I wanted 8 to lay a little foundation here on those two things to get 9 at the differences between what he was testifying to as his 10 basis for determination versus the base case in here. We 11 talked about the 75 percent. 12 MR. BIRMINGHAM: Those were questions asked of this 13 witness by Mr. Howard on his recross-examination. Those 14 were not questions that I raised on my redirect. 15 C.O. STUBCHAER: I think it was straight 16 cross-examination rather than recross. Yes, that is 17 correct. 18 MR. NOMELLINI: Is it close enough to call it? 19 C.O. STUBCHAER: Close enough not to allow the question 20 at this time. 21 MR. NOMELLINI: That is all I have. 22 C.O. STUBCHAER: Thank you, Mr. Nomellini. 23 Does staff have any recross-examination? 24 MR. HOWARD: No questions. 25 C.O. STUBCHAER: Board Members, limited to the scope of CAPITOL REPORTERS (916) 923-5447 10294 1 redirect? 2 Mr. Brown. 3 ---oOo--- 4 RECROSS-EXAMINATION OF WESTLANDS WATER DISTRICT AND 5 SAN LUIS AND DELTA-MENDOTA WATER AUTHORITY REBUTTAL 6 BY BOARD MEMBERS 7 C.O. BROWN: In your redirect you made a statement that 8 the increase in water available by recirculation would be 9 made available to the South Delta Water users? 10 MR. BOARDMAN: I am sorry, I am not understanding your 11 question. 12 C.O. BROWN: Well, maybe you can clear it up. Do you 13 meant that the water will be made available for them to use 14 to irrigate with or water would be made available for them 15 to raise the pumping water levels in the level in the Delta; 16 the quantity diverted would still be the same? 17 MR. BOARDMAN: During the recirculation? 18 C.O. BROWN: Yes. 19 MR. BOARDMAN: Yes. My assertion was that the base 20 export was and recirculation takes place on top of that, 21 that recirculated amount would not be going south to the 22 Delta, would be purely for the benefit of recirculation, 23 would not be picked up by exporters and delivered or stored 24 in San Luis. 25 C.O. BROWN: I probably misunderstood, then. You did CAPITOL REPORTERS (916) 923-5447 10295 1 not mean that that water that was put in there for 2 recirculation would be made available for use by the South 3 Delta water users? 4 MR. BOARDMAN: No. 5 C.O. BROWN: Mr. Hildebrand, right or wrongly, has been 6 credited throughout this hearing with being the father of 7 the recirculation idea. And you have read his testimony in 8 South Delta Exhibit 51, and you've read the Draft 9 Environmental Impact Report we have on the recirculating 10 alternative, also. 11 Have you noticed any major differences between what is 12 proposed in this report by our staff as what is proposed by 13 Mr. Hildebrand in his exhibit? 14 MR. BOARDMAN: I guess my extent of the review that I 15 have done on the two alternatives have been primarily 16 focused on South Delta's proposal. And I guess the key 17 points that I have, that were clear to me, is that this 18 version of the recirculation is superimposed on top of our 19 base exports. 20 So, as it appears in this proposal, that would not have 21 an impact on our exports so long as that recirculation 22 pumping takes place over and above those base exports. I am 23 not familiar enough with Alternative 6 to say the same, to 24 say that -- well, to make a comparison like that. I could 25 just only mention that South Delta's proposal does, in fact, CAPITOL REPORTERS (916) 923-5447 10296 1 is proposed to take place over and above the base exports 2 that he would normally be doing during the pulse flow 3 period. 4 C.O. BROWN: An example is in the record on this issue 5 is in recirculating 2,000 cfs. I think it was an example 6 given, which would be equivalent to 4,000 acre-feet a day, I 7 believe; is that correct? 8 MR. BIRMINGHAM: Excuse me, would the Board direct the 9 witness to answer audibly. 10 C.O. STUBCHAER: Yes. 11 MR. BOARDMAN: Yes, that is correct, 4,000 acre-feet a 12 day. 13 C.O. BROWN: That would be 4,000 acre-feet a day in the 14 example that was given. The idea behind it, of course, is 15 that you draw that either out of the system, the advance 16 system, or out of the San Luis Reservoir and would borrow it 17 for 30 days, or 40 days, whenever you needed it, minus the 18 evaporation and seepage and return it; is that correct? 19 MR. BOARDMAN: That's correct. 20 C.O. BROWN: Where does this makeup part come from that 21 you are talking about? Makeup what? 22 MR. BOARDMAN: The makeup water, I think where that is 23 coming about is on our base exports, if some amount of that 24 base export is diverted toward recirculation -- for example, 25 if we are pumping, just to throw a number around, 1,500 cfs CAPITOL REPORTERS (916) 923-5447 10297 1 and 500 of that 1,500 cfs goes toward recirculating, we are 2 going to be pumping a thousand acre-feet less a day, 500 cfs 3 comes out to a thousand acre-feet. We would be normally -- 4 Let's say we have no demand during that period, and 5 every part of that 1,500 cfs is going into storage, if we 6 have to give up any portion of that for recirculation, then 7 we are going to be putting -- we are going -- we are not 8 going to be putting into storage what we have given up for 9 recirculation during this period. So that is a storage 10 impact that we would have to make up and, therefore, have 11 makeup pumping for it. 12 C.O. BROWN: Maybe you can clear up for me. I 13 understand the proposal is to put that water back into 14 storage at the end of 30 days or 40 days. 15 MR. BOARDMAN: As it is proposed in this plan, if 16 superimposed on it, upon the normal exports, if we are 17 pumping that 1,500 and we can still pump that 1,500 cfs, and 18 then an additional, say, 1,500 is pumped in addition to 19 that, then there is no impact and there would not be a need 20 for any makeup pumping. 21 C.O. BROWN: Are you familiar that the program as 22 proposed, that if there is a conflict with the pumping 23 proposed in recirculation and a shortage would result, that 24 the proposal submitted in that exhibit, Exhibit 51, is to 25 purchase water to make up shortfalls? Are you familiar with CAPITOL REPORTERS (916) 923-5447 10298 1 that? Did you read this in the -- 2 MR. BOARDMAN: Yes. If that purchased water were the 3 case of replacing it, then I guess from whatever entity that 4 water was purchased from, that would come out of their share 5 of what they stored in San Luis, that feasibly could work. 6 C.O. BROWN: It seemed like in your testimony, and the 7 problem of having to make up the quantities of water from 8 storage that was lost is comparing with something other than 9 what is proposed? 10 MR. BOARDMAN: Well, and I am not real clear on how the 11 subject of makeup pumping came about, going through here in 12 my mind. If the recirculation is done over and above our 13 existing -- our otherwise -- excuse me. 14 If the recirculation is performed with excess pumping 15 capacity over and above what we would normally be pumping 16 under whatever set of restrictions for that period, then, 17 yes, there would not be an impact. 18 I think the makeup pumping came into discussion in the 19 event that there was a portion of our base export diverted 20 towards recirculation. Then we have an issue and then we 21 have a need to make up that lost amount of water. 22 C.O. BROWN: Is this what was proposed in that 23 exhibit? 24 MR. BOARDMAN: No. 25 C.O. BROWN: That is a different program? CAPITOL REPORTERS (916) 923-5447 10299 1 MR. BOARDMAN: To be honest, yeah. I don't know how we 2 got in to makeup pumping other than just to talk about that 3 if there was an impact, these would be the constraints that 4 we would have to deal with. 5 As South Delta has pitched it, yes, it is going to be 6 over and above the base exports. And as long as it is kept 7 or as long as it is performed in that nature, then we 8 wouldn't have a need for makeup pumping. 9 C.O. BROWN: This is all I have, Mr. Chairman. 10 Thank you. 11 C.O. STUBCHAER: Ms. Forster. 12 MEMBER FORSTER: I wanted to revisit one item, and that 13 was when you were asked about VAMP and recirculation and the 14 veracity of the experiment, that was kind of a tight 15 comment, not explained. And I would like you to explain 16 that a little bit more. I think Mr. Birmingham said to you 17 would -- you don't want me to rephrase the question? 18 C.O. STUBCHAER: I didn't say a thing. 19 MEMBER FORSTER: I thought I heard Mr. Birmingham ask 20 you a question or present a question on VAMP and 21 recirculation, and the question, as I remember it, went 22 something like: Would recirculation impact the, the word he 23 used, "veracity" of the experiment, and you said yes. And I 24 think it would be helpful to expand on that. 25 MR. BOARDMAN: I guess I reply by first stating I am CAPITOL REPORTERS (916) 923-5447 10300 1 not a biologist and I am assuming that in VAMP, if they laid 2 that out under this particular export, as you recall there 3 were three different export levels within VAMP and then four 4 different -- excuse me, flow levels at Vernalis, and a 5 combination of those seven numbers is what they are striving 6 to develop, some correlation, if one exists. 7 If there are three numbers in the experiment, three 8 different exports that they are striving to test, when we 9 start implementing recirculation over and above that, now we 10 start skewing from those three different numbers that they 11 are trying to use as a base of their analysis, we may end up 12 with six different export numbers, for example, that they 13 have to incorporate in and determine whether or not there 14 is a correlation there. And I guess, when you start 15 deviating from how the plan is set forth, you may complicate 16 it and make any kind of derivation on a correlation more 17 difficult. Again, that is for a biologist to figure out. 18 But it does complicate things if you start implementing a 19 higher number of combination of exports into the equation in 20 the experiment. 21 MEMBER FORSTER: Thank you. 22 C.O. STUBCHAER: That concludes the 23 recross-examination, Mr. Boardman. There are no exhibits. 24 So, thank you for your participation, Mr. Boardman. 25 MR. BOARDMAN: Thank you. CAPITOL REPORTERS (916) 923-5447 10301 1 C.O. BROWN: Thank you. 2 C.O. STUBCHAER: Mr. Brandt. 3 Good afternoon. 4 ---oOo--- 5 DIRECT EXAMINATION OF DEPARTMENT OF THE INTERIOR REBUTTAL 6 BY MR. BRANDT 7 MR. BRANDT: Good afternoon. Alf Brandt on behalf of 8 the Department of the Interior. 9 We have one witness who will be testifying on two 10 topics, and I just want to identify where that was in the 11 testimony that we are rebutting. 12 They are two distinct topics. One is testimony 13 regarding what is South Delta Water Agency Exhibit Number 14 12. She will be testifying about issues that arise out of 15 that, her review of that study, which is also known as the 16 San Joaquin River SJRIO. That is one topic. 17 The other topic she will be testifying about is to 18 rebut reference in several cases by Mr. Hildebrand that the 19 Interim Operations Plan guarantees a 40-percent violation of 20 the standards, 40 percent of the time. Just to clarify, she 21 will be testifying as to clarifying what that number is and 22 explain a little bit more. 23 Those are the two topics she will be testifying to. I 24 think she does need to be sworn. She has not been sworn. 25 (Oath administered by C.O. Stubchaer.) CAPITOL REPORTERS (916) 923-5447 10302 1 MR. BRANDT: Good afternoon, Ms. Manza. 2 Let me ask you, have you ever seen before what has now 3 become to be known as South Delta Water Agency Exhibit 12, 4 which is entitled, "SJRIO Studies of San Joaquin River 5 Recirculation and Reoperation of Wetland Discharge and Tile 6 Drainage"? 7 MS. MANZA: Yes, I have. 8 MR. BRANDT: Have you reviewed that study? 9 MS. MANZA: Yes, I have reviewed it. I was sitting in 10 on the study team and reviewed the document at the end of 11 the study. 12 MR. BRANDT: Has the Bureau -- you are with the Bureau 13 of Reclamation; is that correct? 14 MS. MANZA: Yes, that is correct. 15 MR. BRANDT: What is your position with the Bureau of 16 Reclamation? 17 MS. MANZA: I am a hydrologic engineer in the planning 18 division of the Mid Pacific region. 19 MR. BRANDT: How long have you worked for that 20 division? 21 MS. MANZA: I have worked for Reclamation for almost 14 22 years now. 23 MR. BRANDT: Has Reclamation ever done any sort of 24 study or review of the recirculation concept? 25 MS. MANZA: Yes, we have. Approximately four and a CAPITOL REPORTERS (916) 923-5447 10303 1 half years ago we did an initial feasibility study of the 2 recirculation concept. 3 MR. BRANDT: What was the general overall conclusions 4 of that study? 5 MS. MANZA: The conclusions were that there was some 6 potential there for benefit. However, there were impacts to 7 our contractors and there were many issues that were 8 identified during that study that we felt needed additional 9 investigation. 10 MR. BRANDT: Is that -- were those conclusions that you 11 just described, are those similar to what you concluded 12 after reviewing SDWA Number 12? 13 MS. MANZA: Yes. We still feel that SDWA 12 does 14 address one issue that we weren't able to address, which is 15 it did attempt to look at water quality in the San Joaquin 16 River, which we were not able to do because they did use the 17 SJRIO model. However, there were still several issues that 18 were not addressed by the study, and we still feel that 19 these need additional investigation. 20 MR. BRANDT: Can you please describe those issues that 21 arise out of SDWA 12. 22 MS. MANZA: Certainly. The first one is impact to CVP 23 contractors. SDWA 12, as has been stated before, assumed 24 that the pumping for recirculation was on top of the export 25 pumping. So, if that were not to be allowed, there would be CAPITOL REPORTERS (916) 923-5447 10304 1 impact to our contractors. And we feel that it is important 2 to analyze what the magnitude and scope of that impact is. 3 Also, is there sufficient carrying space in the 4 Delta-Mendota Canal. SDWA 12 assumed that there was 5 sufficient space and, if there wasn't, it was assumed that 6 the additional water would be wheeled through the 7 California Aqueduct. 8 We would like to look at the capacity and make sure 9 that the volumes are there and that the ability to wheel, if 10 needed, is also there. 11 Another issue is about the water quality. Because 12 recirculation hasn't been done, we don't know what the 13 affect on water quality of running it through the Delta, 14 down the DMC, back through the San Joaquin and around and 15 around is going to be. We don't know if the water quality 16 will stay constant at the level off the DMC water. If it 17 will be improved or if it will be degraded. We simply don't 18 know. That is something that needs to be looked at. 19 And SDWA 12 did assume that the Delta barriers were in 20 place. If those were not to be in place, then the 21 probability is higher that there would be some change to the 22 water quality, quite possibly a degradation of water 23 quality. 24 Now this one is probably a more minor critique of the 25 study. SDWA 12 assumed that the deliveries to the refuges CAPITOL REPORTERS (916) 923-5447 10305 1 were at what we call the firm level form, which is a higher 2 level of refuge delivery than to store. Therefore, the 3 return flows off -- they're seasonal wetlands, and that 4 water has to be drained. It comes down in a fairly large 5 slug. There is a higher volume of return flow because we 6 are applying more water. 7 They assumed that -- it was assumed in SDWA 12 that 8 because there is more water being applied, the quality of 9 that return flow water is significant. In fact, they 10 improved it by 50 percent. 11 Now, we have had a study done for Reclamation. That is 12 the Water Quality Master Balance Model for the San Joaquin 13 Basin Action Plan. And it indicated that there would only 14 be an improvement of about 8 percent in water quality. What 15 this means is that the quality of the water coming down the 16 San Joaquin River in SDWA 12 is much better than what we 17 think it might actually have been if this large quantity of 18 water hadn't been assigned a much better water quality in 19 the modeling. 20 Now, we also have a concern about priming the system. 21 That requires back flowing the DMC. When we do that, that 22 reduces our ability to provide water to our contractors 23 during that priming period. Also, SDWA 12 did not look at 24 whether or not there was pumping ability to repay San Luis, 25 both pumping ability and water supply to repay San Luis at CAPITOL REPORTERS (916) 923-5447 10306 1 the end of the recirculation period. 2 Again, it was assumed that the pumping occurs on top of 3 any existing and that the restrictions are not there, and so 4 it was just assuming that, of course, we can repay it. 5 We believe that the amount of water to prime the 6 system is probably relatively small, but we still just want 7 to look at our ability. Can we always repay it? How 8 frequently can it be repaid? It is just an impact that we 9 need to look at. 10 Another item that Reclamation has identified is what is 11 the affect on Newman Wasteway. That's the wasteway that 12 they are talking about. SDWA talks about running the water 13 through. Newman Wasteway has been used in recent years to 14 transport some flows, but they have been periodic and low 15 flows. If we are going to use it to transport the volume of 16 flow that would be required under the recirculation, those 17 are high flows over a more extended period of time. We feel 18 that we need to look at the wasteway and see if that flow 19 volume and velocity causes any potential for scour, bridge 20 scour. Would that need to be reinforced? Is there any 21 flooding potential near the wasteway outlet? We don't -- 22 you don't want to flood out all the farmland right there. 23 Are there any structural modifications that might be 24 needed? Such as does it need to be dredged to remove silt 25 or vegetation? Is there any other remedial work that needs CAPITOL REPORTERS (916) 923-5447 10307 1 to be done to insure that it can handle the volumes of flows 2 safely for an extended period of time? There may be no 3 problem, but we want to look at it. 4 The last issue that has been raised at many meetings 5 that I have attended is a fishery issue; and that is salmon 6 smolt imprinting. Apparently, they are concerned that the 7 water might not smell right for the salmon smolt. I am not 8 a fishery biologist. I don't know very much about it, and I 9 just know that it is an issue that has been raised numerous 10 times by the fishery biologist. So it is something that 11 Reclamation feels that we need to investigate this also. 12 MR. BRANDT: Thank you, Ms. Manza. 13 I have passed out and given the Board an exhibit that 14 is in effect her written testimony. And I've identified it 15 as DOI Exhibit 104. We will, of course, send these out 16 after we get done here. 17 C.O. STUBCHAER: Did you distribute copies to the 18 parties here? 19 MR. BRANDT: Yes, I think we did. We need to. 20 The next package I am going to identity -- this was 21 done rather quickly, so we did not have to identify it on 22 here. 23 I will identify it for the record as the two documents 24 I am about to pass out. One is text and the other one is a 25 table. They are both Exhibit 105, DOI Exhibit 105. The CAPITOL REPORTERS (916) 923-5447 10308 1 table will be 105-A. 2 C.O. STUBCHAER: Wait just a moment, Mr. Brandt, until 3 we get our copies. 4 Please, proceed. 5 MR. BRANDT: Thank you, Mr. Chairman. 6 Ms. Manza, were you at the hearings when Mr. Alex 7 Hildebrand testified? 8 MS. MANZA: Yes, I was for a good portion of his 9 testimony. 10 MR. BRANDT: Did you hear him refer to approximately 11 40-percent violation of the water quality standards that 12 would be caused by the Interim Operations Plan? 13 MS. MANZA: Yes, I did. 14 MR. HERRICK: Objection. That misstates the testimony. 15 Mr. Hildebrand's statement is that in 40 percent of the 16 years there would be a violation. 17 Are we trying to rebut something that wasn't stated? 18 MR. BRANDT: I think we will clarify that. The record 19 speaks for itself. 20 MR. HERRICK: We went through that yesterday. It is 40 21 percent of the years, not water quality violations. I am 22 not sure what we are rebutting. 23 C.O. STUBCHAER: Wait just a moment, Mr. O'Laughlin. 24 Wait. Mr. Brandt. 25 MR. BRANDT: We are merely clarifying what that means CAPITOL REPORTERS (916) 923-5447 10309 1 and what that number is. We are rebutting just so that it 2 is clear for the record, what that number is. And you are 3 right, I did raise an objection yesterday. It was a 4 statement of exactly what that meant and how that meant. 5 That is why I wanted to make sure that the record is clear. 6 MR. HERRICK: Mr. Chairman, the Bureau is putting on 7 direct case testimony. This is an explanation of what their 8 modeling was. This isn't rebutting anything by anybody. 9 This is explaining their position on what that violation 10 modeling shows. That is direct case testimony. 11 C.O. STUBCHAER: Mr. O'Laughlin. 12 MR. O'LAUGHLIN: I know Mr. Herrick, doesn't like it. 13 Just because he doesn't like it, doesn't mean it isn't 14 proper. This testimony was put in by Mr. Hildebrand. It 15 has been talked about by Central Delta Water Agency in their 16 opening brief and their policy statements the same done by 17 South Delta Water Agency. It's been an issue in Phase II-A 18 from the beginning. And the issue is with the San Joaquin 19 River Agreement and the Interim Operation Plan in place, 20 what are the violations of the Water Quality Control Plan at 21 Vernalis. 22 The assertion of the South Delta Water Agency and 23 Central Delta Agency parties is that it is 41 percent of 24 time. What the Bureau's testimony is trying to do by 25 putting it in is to clarify what is meant by 41 percent of CAPITOL REPORTERS (916) 923-5447 10310 1 the time and to show that it is really not 41 percent of the 2 time. That when you look at time, time has different time 3 elements. That is what is being pointed out by this 4 testimony. 5 C.O. STUBCHAER: Mr. Herrick. 6 MR. HERRICK: I don't believe I made any comments about 7 what I prefer to be heard, so I won't address that. The 8 bare bones of this is that this is direct case testimony 9 that was hidden from the direct case, I believe so we 10 couldn't prepare for it, and put it in as rebuttal. 11 Mr. Dan Steiner and numerous witnesses, including Mr. 12 Hildebrand, have gone through the issue of what the 13 40-percent violation means, including Mr. Lowell Ploss and 14 that there is at least one violation in the year, in that 15 year. There isn't anything to rebut unless they are 16 disputing that. What they are trying to do is to clarify or 17 explain things. They are not trying to rebut anything, and 18 that is not proper for a rebuttal case. 19 C.O. STUBCHAER: Mr. Brandt. 20 MR. BRANDT: I would suggest that Mr. Hildebrand was 21 not always that careful to make sure he said in 40 percent 22 of year types. There were times that he would just shoot 23 out 40 percent of the time we are going to have violations. 24 That is not -- I have not been able to review the entire 25 several days of testimony to identify specifically which CAPITOL REPORTERS (916) 923-5447 10311 1 time. But it was not always that precise. 2 Sometimes he said -- for instance, on Page 10 of his 3 testimony, Exhibit 51, he says 40 percent of the year types, 4 which may suggest that is 40 percent of that whole year. It 5 may not be -- it is not exactly as Mr. Herrick did. We just 6 want to make sure it is clear for the record. 7 C.O. STUBCHAER: Yesterday, Mr. Herrick, you were 8 talking about 40 percent of the years and year types, and 9 the terms were somewhat interchanged, as I recall. I think 10 I will permit the questioning to proceed. 11 MR. BRANDT: Thank you, Mr. Chairman. 12 You did answer, yes, that you had heard Mr. Hildebrand 13 refer to a 40-percent violation? 14 MS. MANZA: Yes, I did. 15 MR. BRANDT: Is that number a number that Reclamation 16 has used? 17 MS. MANZA: Reclamation does not present our results in 18 -- has not in the past presented our results in the terms of 19 here is the percentage of times that the standard shall not 20 be fully met. The way the modeling results have been 21 presented is in X number of years there will be at least one 22 violation. 23 MR. BRANDT: Could you please explain and clarify what 24 exactly Reclamation's conclusions were on the amount of 25 violations based on the New Melones Interim Operations CAPITOL REPORTERS (916) 923-5447 10312 1 Plan. 2 MS. MANZA: Yeah. There are two ways to look at this. 3 The traditional way of looking at modeling results is to 4 group them by water year, where the water year begins in 5 October and ends in the following September. And when you 6 do that for the Interim Operations Plan, you will see that 7 there are violations in 37 out of 71 years, which is 8 actually 52.1 percent of the years. 9 However, the New Melones Interim Operations Plan 10 modeling was not done based on year type. We -- Reclamation 11 developed what we call year categories, where what was left 12 out was the end of February storage in the New Melones 13 Reservoir plus the forecasted inflow for the remainder of 14 the year. Then the modeling determined the allocations 15 based on that, not based on year type. 16 So, when you -- when we look at the results, we want to 17 group the results based on March through February because 18 that is what the allocations were based on. So when you 19 group it by this year category, arranging the data from 20 March to the following February, you would see that there is 21 -- the standard is exceeded in 30 years or 42.3 percent of 22 the time, which is approximately the number that Mr. 23 Hildebrand has been stating. Let me rephrase that. Not 43 24 percent of the time, 42.3 percent of the years, not of the 25 time. CAPITOL REPORTERS (916) 923-5447 10313 1 Now this is an important distinction to look at based 2 on contract year. Because if you look at it on the water 3 year, what we saw was wrapping around of -- in wet years you 4 would see that there is violations in October, November. 5 But the preceding year was dry. Well, those allocations had 6 been made in the dry year. They really were part of a dry 7 year as far as that analysis was concerned. But this is 8 just based on years. 9 And when you look at the data, you see that there is 10 great stretches of time when there are no violations. So, I 11 went in and looked at it on a monthly basis. On a monthly 12 basis the Interim Operations Plan violates the standards 10 13 percent of the time. We also looked at it, because that -- 14 you might say, "Well, that is a little misleading. A lot of 15 the time when you are not violating it is in the winter when 16 nobody cares because it is not irrigation season. So I 17 broke the data down to irrigation months, which is April 18 through August, which the Vernalis standard is .7 EC, and 19 the September through March period when the standard is 1 20 EC. 21 When you do that, during the irrigation season we have 22 violations in 15.8 percent of the months, and in the 23 nonirrigation season we have violations in 6.4 percent of 24 the months. Those numbers, I think, are a more realistic 25 way to look at the frequency of violation. What it CAPITOL REPORTERS (916) 923-5447 10314 1 indicates is that there are many years in which there is 2 only one month or maybe two that have a violation. It is 3 not the entire season, and yet we say, "Well, we had a 4 violation that year." So the entire year is counted as a 5 bad year. So it is just a slightly more defined method of 6 looking at the numbers. 7 MR. BRANDT: Can you also explain to us the variation 8 in the amount of violation and what you found as far as the 9 amount of violation of TDS standards. 10 MS. MANZA: If you look at just how badly was the 11 standard violated, we looked at 0 to 100 TDS. We looked at 12 it in 100 TDS increments. From 0 to 100 was 46 of the 13 months. Out of the 88 months that were in violation, 46 of 14 those months, half of them, were a hundred or less 15 TDS. That is 5.4 percent. 16 Then from 100 to 200 TDS, there were 17 months, or 2 17 percent. From 200 to 300 TDS, there were 22 months that 18 were in violation. That is 2.6 percent. And the number of 19 months that were in violation by more than 300 TDS was three 20 months, which is .4 percent. 21 MR. BRANDT: Can you tell us whether -- 22 C.O. STUBCHAER: Mr. Brandt, just for the record, will 23 you reference the exhibit that the witness was referencing? 24 MR. BRANDT: Sure. The witness is speaking off of, 25 although it is not precisely it, but speaking off of DOI CAPITOL REPORTERS (916) 923-5447 10315 1 Exhibit 105. 2 C.O. STUBCHAER: The table just cited was? 3 MR. BRANDT: The table that we were just about to go 4 to. So, 105-A is the table that should be attached to 105. 5 C.O. STUBCHAER: Ms. Forster. 6 MEMBER FORSTER: I don't see what you just said. This 7 doesn't have the same wording. 8 MR. BRANDT: It is not precisely the same wording. 9 The findings are here, and you will find the numbers that 10 she just discussed, which is the part that is the text, 11 which is 105. 12 Can you tell us, Ms. Manza, if the -- have you looked 13 at the San Joaquin River Agreement or reviewed the San 14 Joaquin River Agreement to determine its affect on the 15 amount of or the likelihood of violations by Reclamation of 16 the water quality standards? 17 MS. MANZA: Yes. I reviewed the -- 18 C.O. STUBCHAER: Mr. Herrick. 19 MR. HERRICK: Perhaps we can mention this to some 20 testimony that is being rebutted. 21 MR. BRANDT: Yes. The testimony that is being rebutted 22 on this case was the -- there were a couple of times that 23 Mr. Hildebrand in cross-examination made an offhand comment 24 about, "Well, the San Joaquin River Agreement is going to 25 take more water, make it -- take more water. Make it more CAPITOL REPORTERS (916) 923-5447 10316 1 likely that during the summer there is going to be a greater 2 number of violations." 3 That is why we are rebutting his testimony. 4 C.O. STUBCHAER: Proceed. 5 MS. MANZA: I reviewed the study that is the SJRA study 6 with pulse flow all in May, and I looked at the frequency of 7 violation of water quality standards at Vernalis in that 8 study. 9 MR. BRANDT: Is it more likely or less likely that 10 there will be violations of water quality standards if the 11 San Joaquin River Agreement is implemented? 12 MS. MANZA: Reclamation's ability to meet the water 13 quality standards at Vernalis was improved under the SJRA 14 main plan. We had exceedances in a fewer number of years. 15 MR. BRANDT: Is the Exhibit 105-A the results of your 16 -- reflect the results of your -- the information that you 17 have? 18 MS. MANZA: Yes, it does. 19 MR. BRANDT: Can you tell us the number of months 20 under the San Joaquin River Agreement that the Vernalis 21 standard was exceeded and by the amount that it was 22 exceeded? 23 MS. MANZA: Yes. Under the SJRA plan, the Vernalis 24 standard was exceeded in 68 months, which is equivalent to 8 25 percent of the total months in the study. And when you look CAPITOL REPORTERS (916) 923-5447 10317 1 at the amount of TDS by which the standard is exceeded, 2 again looking in increments of 100 TDS, from 0 to 100 it was 3 exceeded by in 30 months. 4 The exceedances in the range of 100 to 200 TDS occurred 5 in 12 months. Exceedances between 200 and 300 TDS occurred 6 in 25 months. And exceedances over 300 TDS occurred in one 7 month. 8 C.O. STUBCHAER: Is that data displayed on one of those 9 sheets below 105-A? If so, could you tell which one. 10 MR. BRANDT: It is 105, the second page of 105. 11 C.O. STUBCHAER: I thought you referred to 105-A. 12 MR. BRANDT: That is the detail. 13 MS. MANZA: If you want to look at that based on 14 irrigation and nonirrigation season, the way we did for the 15 interim plan. 16 During the irrigation season, there is violations in 50 17 months which is 14.1 percent. And during the nonirrigation 18 season, there is violations in 18 months, which is 3.6 19 percent of the time. 20 MR. BRANDT: That concludes the testimony. We are 21 ready for cross. 22 C.O. STUBCHAER: Who wishes to cross-examine this 23 witness? 24 Mr. Nomellini, Mr. Herrick, Mr. O'Laughlin, Mr. 25 Birmingham. CAPITOL REPORTERS (916) 923-5447 10318 1 Let's do the cards. 2 The order of cross-examination of Bureau of Reclamation 3 will be Mr. Birmingham, Mr. Nomellini, Mr. O'Laughlin, Mr. 4 Herrick. 5 Mr. Birmingham. 6 ---oOo-- 7 CROSS-EXAMINATION OF DEPARTMENT OF THE INTERIOR REBUTTAL 8 BY SAN LUIS DELTA-MENDOTA WATER AUTHORITY AND 9 WESTLANDS WATER DISTRICT 10 BY MR. BIRMINGHAM 11 MR. BIRMINGHAM: Good afternoon, Ms. Manza. My name is 12 Tom Birmingham. I am the attorney that represents the San 13 Luis Delta-Mendota Water Authority and Westlands Water 14 District. 15 I would like to ask you a question or series of 16 questions about Department of the Interior Exhibit 104. 17 Department of the Interior Exhibit 104 is a statement of 18 issues that the Bureau of Reclamation has identified with 19 respect to the recirculation proposal? 20 MS. MANZA: Yes, that is correct. 21 MR. BIRMINGHAM: I believe that you said these were 22 issues that you identified as a result of a feasibility 23 study that was conducted in 1996? 24 MS. MANZA: 1995, November 1995. 25 MR. BIRMINGHAM: You said that South Delta Water Agency CAPITOL REPORTERS (916) 923-5447 10319 1 Exhibit 12 addressed one of the issues that you had 2 previously identified, but several of the issues identified 3 in DOI Exhibit 104 were not addressed by South Delta Water 4 Agency Exhibit 12? 5 MS. MANZA: This is correct. 6 MR. BIRMINGHAM: Ms. Manza, could you explain why the 7 Department of the Interior didn't go forward with the 8 additional studies to address some of the issues that you 9 have outlined in Exhibit 104? 10 MS. MANZA: The Department of the Interior has written 11 a detailed study plan for looking at all of these issues. A 12 new start was written for it. I do not know where it is in 13 the budget process right now. But we did write a detailed 14 study plan and did request funding to do the work. I do not 15 know what the status is. 16 MR. BIRMINGHAM: So this is not the situation where you 17 identified issues and decided not to go forward with any 18 analysis. You identified issues, requested funds to conduct 19 further analyses and have not been granted those funds? 20 MS. MANZA: As of this date, I have not heard of any 21 funds being granted. 22 MR. BIRMINGHAM: Now, the last issue that is identified 23 on Department of the Interior Exhibit 104 involves salmon 24 smolt imprinting. I believe you testified that you are not 25 a fisheries biologist? CAPITOL REPORTERS (916) 923-5447 10320 1 MS. MANZA: No, I am not. I am a hydrology engineer. 2 MR. BIRMINGHAM: You said this was an issue that had 3 been identified during meetings during which the 4 recirculation proposal was discussed? 5 MS. MANZA: Yes, that is correct. 6 MR. BIRMINGHAM: The people who identified this as a 7 potential issue, were they fishery biologists? 8 MS. MANZA: Yes, they were. 9 MR. BIRMINGHAM: From which agencies? 10 MS. MANZA: The Fish and Wildlife Service and private 11 consultants, fishery biologists working as private 12 consultants. 13 MR. BIRMINGHAM: Do you know for whom those private 14 consultants were working? 15 MS. MANZA: I don't remember. 16 MR. BIRMINGHAM: One of the issues that you have 17 identified is sufficient space in the Delta-Mendota Canal, 18 and the Department of the Interior Exhibit 104 states that 19 South Delta Water Agency Exhibit 12 assumes that if there is 20 insufficient capacity in the DMC then the California 21 Aqueduct would be used to wheel water to CVP contractors. 22 Why is this issue of capacity in the DMC an issue? 23 MS. MANZA: Well, if the recirculation were to require, 24 for example, 3,000 cfs of water and there was no 3,000 cfs 25 empty in the DMC to put that water into and there was also CAPITOL REPORTERS (916) 923-5447 10321 1 not sufficient space in the California Aqueduct, then you 2 cannot recirculate that much water without inducing a 3 shortage to our contractors. 4 MR. BIRMINGHAM: What is the capacity of the DMC? 5 MS. MANZA: It varies along its length. 6 MR. BIRMINGHAM: At its minimum capacity or that 7 portion where its capacity is at its minimum, do you know 8 what the capacity is? 9 MS. MANZA: That would be at Mendota Pool, and, no, I 10 don't. The capacity that we have considered limiting is the 11 capacity of the DMC near Newman Wasteway because that is 12 where we would be letting the water out at. And I believe 13 the capacity at that area is in the order of 3,300 cfs. Not 14 exactly. But in that order of magnitude. 15 MR. BIRMINGHAM: Generally, what is the demand for 16 agricultural contracts on the DMC during the April/May 17 period? 18 MS. MANZA: I don't know. 19 MR. BIRMINGHAM: Now, one of the issues that you 20 identified was would the quality of water being circulated 21 change over the duration of the recirculation period. 22 Could you explain further what you mean by that? 23 MS. MANZA: Certainly. Basically, we are not -- 24 Reclamation is not saying that we believe that the water 25 quality will change, either get better or get worse. We are CAPITOL REPORTERS (916) 923-5447 10322 1 saying that it is something that needs to be considered. 2 Quality of the water in the DMC is of a lesser quality than 3 that that comes from the tributaries to the San Joaquin 4 River. So, because this water does, in part, serve as 5 dilution for the high salt load return flows that come into 6 the San Joaquin River, there is a question if you put water 7 at 400 TDS down the Newman Wasteway, run it into the San 8 Joaquin River, dilute it to 455 TDS at Vernalis, then run it 9 back around through the DMC. Now the DMC is at 455, you 10 release that back into the Newman Wasteway, down the San 11 Joaquin River. Does that have an impact? Does it increase 12 our need to make water quality releases from New Melones? 13 What happens? 14 We don't know. It could be that -- we just don't know 15 what happens. We are saying it is something that needs to 16 be looked at. It needs to be modeled. 17 MR. BIRMINGHAM: Part of the recirculation proposal 18 that is studied in South Delta Water Agency Exhibit 12 would 19 be to reoperate the tile drainage systems in areas on the 20 west side of the San Joaquin Valley to hold drain water in 21 storage until it can be released during the pulse flow 22 period. 23 Is that your understanding? 24 MS. MANZA: That is my understanding. They looked at 25 the various combinations of withholding no tile water, 50 CAPITOL REPORTERS (916) 923-5447 10323 1 percent of tile water, 100 percent of the tile water. 2 MR. HERRICK: Mr. Chairman. 3 C.O. STUBCHAER: Mr. Herrick. 4 MR. HERRICK: Could he point to somewhere in the direct 5 examination where we talked about withholding drainage? I 6 thought that was the limitation on rebuttal cases. 7 C.O. STUBCHAER: Mr. Birmingham. 8 MR. BIRMINGHAM: Her direct examination, her direct 9 testimony, talks about the potential impacts of the 10 recirculation plan on water quality, and I am following up 11 on that testimony. 12 MR. BRANDT: It is bullet point four. 13 C.O. STUBCHAER: Storage of the saline and tile 14 drainage water. 15 MR. BIRMINGHAM: She does refer to South Delta Water 16 Agency Exhibit 12 and the assumptions that are made in South 17 Delta Water Agency Exhibit 12. And South Delta Water Agency 18 Exhibit 12 talks about holding tile drainage water as part 19 of the recirculation plan. In fact, the title of the 20 document is "and Reoperation of Wetland Discharge and Tile 21 Drainage." 22 C.O. STUBCHAER: I see the reference. 23 MR. HERRICK: That is true, but her direct testimony 24 following on the bullet had nothing to do with the 25 withholding of drainage. CAPITOL REPORTERS (916) 923-5447 10324 1 C.O. STUBCHAER: Mr. O'Laughlin. 2 My tentative ruling is going to be to permit the 3 question and the answer. 4 All right. Please proceed. That is my ruling. 5 MS. MANZA: Could you repeat the question? 6 MR. BIRMINGHAM: I will repeat the question. Actually, 7 I don't think I got to the question. 8 Are water quality issues that the Bureau has identified 9 related to the proposal that drain water would be released 10 during the pulse flow period? 11 MS. MANZA: The water quality issues that we have 12 identified are not singularly related to that. However, the 13 fact that they are proposing to withhold the tile drainage 14 or at least a portion thereof and release it during the 15 pulse flow period does get back to what I said about the 16 dilution capacity of the DMC water versus the fresher water 17 from the tributaries. 18 MR. BIRMINGHAM: I believe in your direct examination 19 you talked about potential effects of the use of the Newman 20 Wasteway? 21 MS. MANZA: Yes. 22 MR. BIRMINGHAM: What is the Newman Wasteway? 23 MS. MANZA: The Newman Wasteway is, in nontechnical 24 terms, it is a little canal that runs from the Delta-Mendota 25 Canal to the San Joaquin River. Although I don't work in CAPITOL REPORTERS (916) 923-5447 10325 1 the construction division, my understanding of the purpose 2 of the wasteway is that they are there so that in case of an 3 emergency the DMC could be quickly evacuated so it could be 4 worked on, and the wasteway goes to a convenient drainage 5 location which is the San Joaquin River. 6 MR. BIRMINGHAM: Was the Newman Wasteway designed to 7 carry -- let me ask a couple of foundational questions. 8 In order to convey the water required for the 9 recirculation, approximately what would the flows in the 10 Newman Wasteway be? 11 MS. MANZA: I do not remember the recirculation 12 quantities exactly from SDWA 12. They did vary. I believe 13 there were occasions when the flows were on the order of 14 magnitude of 2,000 cfs. In other years they could be 15 smaller. 16 MR. BIRMINGHAM: Was the Newman Wasteway designed to 17 carry flows of 2,000 cfs for a period of up to 30 days? 18 MS. MANZA: Again, I do not work in the design 19 division. I have not seen the design specifications for the 20 Newman Wasteway, neither has anybody else who was involved 21 in doing the recirculation study and developing the study 22 plan. That is exactly why we identified this as an issue 23 that we need to research and see if it was designed to carry 24 that kind of flow for that period of time or if there were 25 modifications that would need to be made to it to make it CAPITOL REPORTERS (916) 923-5447 10326 1 safe. 2 MR. BIRMINGHAM: What you are saying is presently the 3 Department of the Interior does not know if, in fact, the 4 Newman Wasteway could be used to convey up to 2,000 cfs for 5 a 30-day period? 6 MS. MANZA: That's correct. 7 MR. BIRMINGHAM: Is it correct that conveyance 8 facilities or the design of conveyance facilities will 9 depend on the function which they are intended to serve? 10 MS. MANZA: Yes. 11 MR. BIRMINGHAM: So a conveyance facility that is 12 designed to evacuate the DMC in an emergency, may not be 13 designed in a way that would permit the facility to convey 14 up to 2,000 cfs for an extended period? 15 MS. MANZA: Again, not being a design engineer, I am 16 just giving you my opinion. But, yes, I would assume that 17 we would not engineer it to the same standards as we would a 18 long-term conveyance facility. 19 MR. BIRMINGHAM: I would like to ask you some 20 questions about Department of the Interior Exhibits 105 and 21 105-A. First, let's go to 105-A. There are two sets of 22 tables in 105-A; is that correct, Ms. Manza? 23 MS. MANZA: That's correct. 24 MR. BIRMINGHAM: The first set of tables, if you look 25 at Page 1 of the 105-A, the period runs from March through CAPITOL REPORTERS (916) 923-5447 10327 1 February; is that correct? 2 MS. MANZA: Can I see a stapled copy, please? 3 The stapling didn't come out in the exact order they 4 were supposed to be put together in. My apologies. 5 MR. BIRMINGHAM: That's all right. 6 Could you please tell us the order in which these pages 7 are supposed to appear? 8 MS. MANZA: Well, the way I thought I had them 9 arranged, standing over the copier, was that the first page 10 would read, "Amount of TDS by Which Vernalis Standard is 11 Exceeded by the Interim Operations Plan, Water Year 12 Summary." 13 MR. BIRMINGHAM: That would be Page 1? 14 MS. MANZA: Yes. 15 MR. BIRMINGHAM: What would be Page 2? 16 MS. MANZA: The same title, but by Contract Year 17 Summary. 18 MR. BIRMINGHAM: Page 3? 19 MS. MANZA: Amount of TDS by which the Vernalis 20 Standard is Exceeded by the SJRA May Plan, Water Year 21 Summary. 22 MR. BIRMINGHAM: Page 4. 23 MS. MANZA: Would be the same title, but Contractor 24 Summary. They were supposed to be in a logical order. 25 MR. BIRMINGHAM: So the reason that what you have just CAPITOL REPORTERS (916) 923-5447 10328 1 identified as Page 4 runs from March through February is 2 because that relates to the contract year? 3 MS. MANZA: Yes. That is based on the same order in 4 which the modeling occurred. 5 MR. BIRMINGHAM: Page 3 is a table which summarizes the 6 amount of TDS by which the Vernalis standard is exceeded by 7 SJRA May plan during a water year? 8 MS. MANZA: Yes. Same data, simply arranged to reflect 9 water year, not contract year. 10 MR. BIRMINGHAM: Could you explain why it is important 11 to depict the data in both ways? 12 MS. MANZA: I don't know that it is truly necessary to 13 depict it in both ways. If I had to choose one, I would 14 choose it by contract year summary. However, because most 15 of the parties involved in water analysis typically look at 16 year types and water years, I went ahead and put the data in 17 both formats so that people who are used to looking at 18 things in the water year format would have it. 19 I felt that it was important to display them in the 20 contract year manner because that is the methodology that 21 this particular model used to compute the releases for the 22 water quality. 23 MR. BIRMINGHAM: Is it correct that a condition of the 24 permit held by the Bureau of Reclamation for operation of 25 the New Melones Reservoir requires the release of water to CAPITOL REPORTERS (916) 923-5447 10329 1 meet water quality standards at Vernalis? 2 MS. MANZA: Yes, our permit does require that. 3 MR. BIRMINGHAM: Would you explain to the Board why in 4 some years the Department of the Interior fails to meet that 5 requirement? 6 MS. MANZA: As has been stated in previous testimony, 7 there is simply -- in some years there simply is not enough 8 water in New Melones to meet all of the obligations that are 9 currently placed upon it. 10 MR. BIRMINGHAM: Do those tend to be years in which 11 there is simply not enough water in New Melones to meet the 12 demands placed on it? Do those tend to be drier years? 13 MS. MANZA: Yes. They tend to be below normal, dry and 14 critical years. 15 MR. BIRMINGHAM: So, the failure to meet water quality 16 standards at Vernalis is not the result of an intentional 17 decision to ignore the permit terms and conditions? 18 MS. MANZA: I do not work in the operations office. 19 However, my understanding is that, no, it is not a 20 deliberate decision. 21 MR. BIRMINGHAM: It results from just the lack of water? 22 MS. MANZA: Again, I don't work in the operations 23 office. I can't speak to -- 24 MR. BIRMINGHAM: If you don't -- 25 MS. MANZA: -- what they have to do on a daily basis. CAPITOL REPORTERS (916) 923-5447 10330 1 MR. BIRMINGHAM: If you don't know the answer to one of 2 my questions, the Chair would be the first to tell you that 3 that is simply the best answer to give, "I don't know." 4 Going back to the Interim Operations Plan for New 5 Melones, how was that developed? 6 MR. BRANDT: That, at this point, may be going beyond 7 this witness' -- both this witness' rebuttal and -- 8 MR. HERRICK: I will join in that objection. 9 C.O. STUBCHAER: I concur, finally. Sustained. 10 MR. BRANDT: The last two questions have been on the 11 borderline. 12 MR. BIRMINGHAM: Well, Ms. Manza, the results that are 13 contained in Department of the Interior 105, are the results 14 from the operation of a model? 15 MS. MANZA: Yes, they are. 16 MR. BIRMINGHAM: What model is that? 17 MS. MANZA: It is a spreadsheet model called STANMOD. 18 MR. BIRMINGHAM: In preparing Exhibit 105 you compared 19 the number of years in which you would expect to violate the 20 Vernalis standard under the interim plan and the years in 21 which you would expect to violate the standard under the San 22 Joaquin River Agreement? 23 MS. MANZA: That is correct. 24 MR. BIRMINGHAM: Is it correct that the San Joaquin 25 River Agreement provides for an operation of New Melones CAPITOL REPORTERS (916) 923-5447 10331 1 Reservoir in a manner consistent with the Interim Operations 2 Plan? 3 MR. BRANDT: I am going to object on that one, too. 4 Beyond the scope of her direct testimony. 5 C.O. STUBCHAER: Mr. Birmingham. 6 MR. BIRMINGHAM: I hate to disagree with Mr. Brandt 7 because we have been getting along so famously here. But 8 her direct testimony talks about a comparison between the 9 Interim Operations Plan and the San Joaquin River 10 Agreement. And I certainly have a right to cross-examine 11 the witness on her understanding of what is required by the 12 San Joaquin River Agreement. 13 C.O. STUBCHAER: Mr. Brandt. 14 MR. BRANDT: If it is to the extent of her 15 understanding of and, therefore, how it applies to this, 16 that probably falls within it. But if it is what the 17 agreement provides, I don't know that she has had an 18 opportunity to review the agreement. 19 C.O. STUBCHAER: It would have to be the former, her 20 understanding of it. That -- you may answer to the best of 21 your understanding, Ms. Manza. Please proceed. 22 MS. MANZA: Rephrase the question, please. 23 MR. BIRMINGHAM: What is your understanding of how the 24 San Joaquin River Agreement deals with the Interim 25 Operations Plan for New Melones? CAPITOL REPORTERS (916) 923-5447 10332 1 MS. MANZA: The Interim Operations Plan for New Melones 2 was used as the base operations for the San Joaquin River 3 Agreement. 4 C.O. STUBCHAER: Ms. Manza, could you pull the 5 microphone just a little closer? You are doing very well, 6 just bend it down. 7 MR. BIRMINGHAM: Now, when you say that the Interim 8 Operations Plan was the base operations of New Melones under 9 the San Joaquin River Agreement -- did I understand that 10 correctly? 11 MS. MANZA: Yes. 12 MR. BIRMINGHAM: Can you explain, then, how the San 13 Joaquin River Agreement or implementation of the agreement 14 would improve on that base case? In other words, what I am 15 trying to understand, Ms. Manza, is the logic of the model 16 result. If I understand it, the San Joaquin River Agreement 17 reduces the number of years in which there would be 18 violations of water quality standards at Vernalis; is that 19 correct? 20 MS. MANZA: Yes, it does. 21 MR. BIRMINGHAM: Can you explain how that is 22 accomplished by implementation of the San Joaquin River 23 Agreement as modeled by STANMOD? 24 MS. MANZA: I can't give you the specific mechanism. 25 There are additional flows that are coming down the river, CAPITOL REPORTERS (916) 923-5447 10333 1 the San Joaquin River, during the pulse flow period. Those 2 flows do provide dilution capacity in the river. While we 3 are not releasing additional water to meet above and beyond 4 the interim plan to meet the standards, there may be times 5 when we are not having to release as much water for water 6 quality purposes which leaves that water in the reservoir to 7 use later on in the year. 8 Also, part of the SJRA study involves additional flows 9 from the Merced River in October which removed some of the 10 water quality violations that were occurring in the month of 11 October. 12 MR. BIRMINGHAM: The water that would be coming down 13 the Merced River in the month of October is water that the 14 Department of the Interior would purchase from water users 15 on the Merced River. 16 MS. MANZA: Is it my understanding that that is a water 17 acquisition, yes. 18 MR. BIRMINGHAM: If I understand your answer, because 19 releases are made under the San Joaquin River Agreement that 20 otherwise would be made from New Melones, water is being 21 maintained in New Melones storage that can be used for 22 subsequent releases to maintain water quality at Vernalis? 23 MS. MANZA: Actually, I did not phrase it exactly like 24 that. What I said was the water quality in the San Joaquin 25 River, there may have been occasions in April and May when CAPITOL REPORTERS (916) 923-5447 10334 1 previously we were releasing poor water quality, not for 2 flow standards but for water quality, which are now not 3 needed under the SJRA because of the additional flows from 4 the tributaries. 5 MR. BIRMINGHAM: Let's talk about the flow standards 6 for a moment. Under the Bureau's existing operation, where 7 would water to achieve the flow standards come from? 8 MS. MANZA: The water quality or the flow? 9 MR. BIRMINGHAM: The flow. 10 MS. MANZA: To the best of our ability, they would come 11 from New Melones. 12 MR. BIRMINGHAM: Isn't it correct if water is made 13 available to meet the flow standards from water users on 14 other tributaries, that would permit the Bureau to maintain 15 additional water in storage at New Melones? 16 MS. MANZA: My understanding of the development of the 17 SJRA was that the quantity of water that we were providing 18 towards the flow standards under the interim plan would 19 still be provided under the SJRA and the SJRA was put on top 20 of that. That was not put into place to relieve us of our 21 obligations from New Melones. 22 MR. BIRMINGHAM: Thank you. 23 I am somewhat confused by Department of the Interior 24 Exhibit 105. On Page 1 there is a table under Paragraph C 25 and Page 2 there is a table under Paragraph C. What is the CAPITOL REPORTERS (916) 923-5447 10335 1 difference between the data represented in those two tables? 2 MS. MANZA: The table on Page 1 represents the number 3 of months in which violations would be in a given range 4 under the interim plan. The table on Page 2 reflects the 5 number of months where violations would be within a given 6 range for the SJRA May plan. 7 MR. BIRMINGHAM: The comparison, then, is at the end of 8 the second page, is based upon the information contained in 9 the tables on Page 1 under Paragraph C and on Page 2 under 10 Paragraph C. 11 MS. MANZA: Are you referring to a table at the bottom 12 where I have irrigation and nonirrigation? 13 MR. BIRMINGHAM: What I am referring to -- yes. I am 14 referring to the results of a comparison reported at the end 15 of Page 2, and I am asking: Is that comparison based upon 16 the information contained in the tables on Paragraph C on 17 Page 1 and Paragraph C on Page 2? 18 MS. MANZA: No. This data -- the breaking it out by 19 irrigation and nonirrigation season came from looking at the 20 tables and adding up the months of violation during the 21 appropriate months and divided by the total number of 22 months. 23 This table does not -- the two tables on Page 1 and 24 Page 2 reflect the size of the exceedance, if you will, just 25 how badly is the standard being exceeded. The table at the CAPITOL REPORTERS (916) 923-5447 10336 1 bottom is simply to reflect -- if you say, we are exceeding 2 it in 10 percent of the months, somebody might say that is 3 misleading because really it is always 16 percent during the 4 irrigation season. That is much worse than ten. We wanted 5 to present it in an open and honest format. 6 MR. BIRMINGHAM: When you say the "months of 7 violation," how many days of violation occur within a month 8 to result in a month of violations? 9 MS. MANZA: Our models are run on a monthly basis. 10 They are not daily models. It is monthly average. 11 MR. BIRMINGHAM: So, within any month there maybe 30 12 days of violation or there could be a few days of a 13 violation where the degree of violation greatly exceeds 300 14 TDS? 15 MS. MANZA: Yes, that could be true. 16 MR. BIRMINGHAM: You'll have to forgive me, but I 17 didn't understand, as apparently Mr. Herrick didn't, the 18 point of your comparison. You've said that there are -- 19 there was a reference to violations in 41 percent of the 20 years. 21 Is this correct? 22 MS. MANZA: I have heard in Mr. Hildebrand's testimony 23 that he stated that the interim plan violates water quality 24 in 41 percent of the years, yes. 25 MR. BIRMINGHAM: Could you please for my benefit CAPITOL REPORTERS (916) 923-5447 10337 1 explain again what your analysis shows? 2 MS. MANZA: Our analysis shows that when you look at 3 the interim plan results on a contract year, we are 4 violating water quality in 30 years, which is 42.3 percent 5 of the study period, which is really close to Mr. 6 Hildebrand's 41 percent. 7 We simply feel that looking at it -- Reclamation feels 8 that when you look at it strictly based on number of years, 9 that is somewhat misleading and makes it sound worse than 10 what it really is. 11 MR. BIRMINGHAM: How should we look at it? 12 MS. MANZA: I would propose you look at it based on the 13 number of months, like I have displayed in Exhibit 105. 14 MR. BIRMINGHAM: When you look at it in terms of number 15 of months that is reflected in the comparison of results 16 contained at the end of Page 2? 17 MS. MANZA: That is correct. 18 MR. BIRMINGHAM: I have no further questions. 19 C.O. STUBCHAER: Let's take our afternoon break. 20 (Break taken.) 21 C.O. STUBCHAER: Let's come back to order. 22 Mr. Nomellini. 23 ---oOo-- 24 CROSS-EXAMINATION OF DEPARTMENT OF THE INTERIOR REBUTTAL 25 BY CENTRAL DELTA PARTIES CAPITOL REPORTERS (916) 923-5447 10338 1 BY MR. NOMELLINI 2 MR. NOMELLINI: Mr. Chairman, Members of the Board, 3 Dante John Nomellini for Central Delta Parties. 4 I have just a couple questions on DOI 105, Paragraph A, 5 you indicate that the calculation for violations in given 6 years would be 52.1 percent; is that correct? 7 MS. MANZA: As stated, when you are looking at water 8 years, when the data is ranged based on water years, there 9 are violations of at least one month during the year in 37 10 years out of the 71-year period of record, which is 52.1 11 percent. 12 MR. NOMELLINI: Alex Hildebrand was wrong when he said 13 41 percent. He should have said 52.1 percent; is that your 14 testimony? 15 MS. MANZA: No, it is not. My testimony is that when 16 you look at the number of years during which the water 17 quality is violated by the Interim Operations Plan, when you 18 look at it based on a contract year, which is how the 19 allocations are modeled, there are violations in 42.3 20 percent of the years, and that is very similar to the number 21 which Mr. Hildebrand has been quoting. 22 MR. NOMELLINI: Then, if we go to water years, Alex was 23 wrong. He should have said 52.1 percent. If we go to 24 contract years, Alex was wrong. He should have said 42.3 25 percent instead of 41 percent? CAPITOL REPORTERS (916) 923-5447 10339 1 MR. BIRMINGHAM: Objection. Compound. 2 MR. O'LAUGHLIN: Objection. Argumentative. 3 C.O. STUBCHAER: Sustained. 4 MR. NOMELLINI: In your analysis, reflected in DOI 5 105-A, you make a comparison of the San Joaquin River 6 Agreement to the Interim Operations Plan; is that correct? 7 MS. MANZA: Actually, Exhibit 105-A is the tables, the 8 data tables that were used to derive the analysis in Exhibit 9 105. 10 MR. NOMELLINI: In the tables there is comparison of 11 the San Joaquin River Agreement impacts on TDS versus the 12 Interim Operations Plan impact on TDS; is that correct? 13 MS. MANZA: No, that is not correct. These tables do 14 not make a comparison. These tables are the results of a 15 study. They are not comparison tables. 16 MR. NOMELLINI: So you used those independent tables in 17 which to make the comparison that is reflected in DOI 105? 18 MS. MANZA: That is correct. 19 MR. NOMELLINI: Now, in the tables, DOI 105-A, 20 particularly with regard to the Interim Operations Plan 21 tables, is it assumed that the only way that water quality 22 standards could be maintained at Vernalis by the Bureau of 23 Reclamation is with water from New Melones? 24 MS. MANZA: The Interim Operation Plan only provides 25 water for water quality at Vernalis from New Melones. CAPITOL REPORTERS (916) 923-5447 10340 1 MR. NOMELLINI: And is it correct that the tables 2 reflected in DOI 105-A that address the Interim Operations 3 Plan are based on that assumption, that only New Melones 4 water is available to the Bureau to meet the Vernalis water 5 quality objectives? 6 MS. MANZA: The data contained in the tables, in 7 Exhibit 105-A, is regarding the Interim Operations Plan's 8 direct output from the study that was used as the basis for 9 the Interim Operation Plan. That plan only looks at 10 allocation of New Melones water. 11 MR. NOMELLINI: Does the CVP have any other physical 12 capability of providing water to meet the Vernalis water 13 quality standards other than New Melones? 14 MR. BRANDT: Objection. I think that is outside the 15 scope of this testimony. What other supplies? She's 16 testified on the study, what it does. If it's related 17 somehow to the study, that is one thing, but this is outside 18 the study. 19 C.O. STUBCHAER: I thought that was a little bit 20 discussed, about purchased water, acquisition water. Was 21 that on cross? 22 MR. BRANDT: Was that -- 23 C.O. BROWN: That was in cross, Mr. Chairman. 24 MR. NOMELLINI: Well -- 25 C.O. STUBCHAER: Mr. Nomellini. CAPITOL REPORTERS (916) 923-5447 10341 1 MR. NOMELLINI: It goes to the basis of studies that 2 she is using in her comparisons, and whether or not those 3 assumptions are valid for the purposes of showing that there 4 is a difference in those two operations. 5 C.O. STUBCHAER: Mr. Birmingham. 6 MR. BIRMINGHAM: She's already stated that the studies 7 are based upon analysis of the Interim Operations Plan. The 8 Interim Operations Plan deals only with the operation of New 9 Melones. Mr. Nomellini may be trying to make some point, 10 but she's testified as to the basis of those studies. 11 C.O. STUBCHAER: Your answers have been clear on that 12 point. I just -- well, Mr. Herrick. 13 MR. HERRICK: I understand that she did make a 14 comparison between the Interim Operation Plan and the San 15 Joaquin River Group. If you can't explore the basis of the 16 information she used to make a comparison, it is very 17 difficult to try and analyze the testimony. 18 C.O. STUBCHAER: I will allow the question to be 19 answered. 20 MS. MANZA: Would you please restate the question. 21 MR. NOMELLINI: Does the CVP have any physical 22 capability other than use of New Melones water to meet the 23 water quality standards at Vernalis? 24 MS. MANZA: There are, theoretically, two potential 25 other ways, both of which we -- Reclamation reservations and CAPITOL REPORTERS (916) 923-5447 10342 1 concerns about that would need to be looked at. One of 2 those possible alternatives is the recirculation through the 3 Newman Wasteway. 4 MR. NOMELLINI: And the other? 5 MS. MANZA: Would be releases from Friant Dam. 6 MR. NOMELLINI: Isn't there a third? 7 MR. BIRMINGHAM: Objection. Argumentative. 8 MR. NOMELLINI: Wouldn't a third alternative be 9 supplementing the interim operations with water purchases? 10 MR. BIRMINGHAM: I am going to object to the question 11 on the grounds it is argumentative. 12 C.O. STUBCHAER: I would say, Mr. Nomellini, you are 13 talking about physical conditions, not fiscal conditions 14 when you asked your initial question. 15 MR. NOMELLINI: Right. And physical conditions would 16 be if we bought water from the Merced to supplement the 17 Interim Operations Plan from the New Melones. We would then 18 have water coming down the Merced River in those facilities 19 that provided it. 20 C.O. STUBCHAER: You were talking about CVP physical 21 facilities, as I recall. 22 MR. NOMELLINI: Does the CVP have any physical 23 capabilities -- I happened to have written this question 24 down -- other than use of New Melones to meet the water 25 quality standards at Vernalis? CAPITOL REPORTERS (916) 923-5447 10343 1 C.O. STUBCHAER: I am not being argumentative with you, 2 I am sorry. But the release from the Merced and the 3 Tuolumne are not CVP facilities, so I think this is being 4 very technical. 5 Why don't you delete the records to the CVP physical 6 facilities, and you can get the answer you want? 7 MR. NOMELLINI: Okay. 8 C.O. STUBCHAER: Mr. O'Laughlin. 9 MR. O'LAUGHLIN: If I may, I am a little slow on the 10 uptake, having been gone yesterday. What connection does 11 this have to do with her testimony or anything else, 12 whether there is physical facilities in the valley has 13 nothing to do with the studies that were done, the linkup or 14 her testimony about water quality at Vernalis? And unless 15 we are going to get to that sometime shortly I would like 16 to have all these questions stricken and move on. 17 C.O. STUBCHAER: Well I think the questions having to 18 do with water quality at Vernalis related to the 19 recirculation plan, they are all relative, so please 20 proceed. 21 MR. NOMELLINI: Would it be possible for the CVP to 22 meet Vernalis water quality standards by supplementing the 23 interim operation of New Melones with water purchases? 24 MS. MANZA: I do not work in the water purchase area. 25 I understand that we have water acquisition program under CAPITOL REPORTERS (916) 923-5447 10344 1 CVPIA. My understanding that that is acquisition for 2 fishery flow. I do not know if we have a similar program to 3 acquire water for water quality purposes. I would assume as 4 Chairman pointed out, that is a fiscal condition and I do 5 not know anything about Reclamation's fiscal ability and 6 entitlements or legal abilities to do that. 7 MR. NOMELLINI: Let's take away the fiscal aspects, and 8 let's focus in on an assumption that the Bureau purchased 9 water from other sources to supplement interim operations of 10 New Melones to meet fish flow requirements. Would that help 11 the Bureau improve its ability to meet Vernalis water 12 quality objectives? 13 MR. O'LAUGHLIN: Objection. Vague and ambiguous as to 14 fish flows and timing of the year and year types. 15 MR. BRANDT: Can I also understand -- I also object as 16 beyond the scope of her direct testimony. I am 17 understanding you tie that somehow? 18 MR. NOMELLINI: Yes. 19 C.O. STUBCHAER: Please refine the question. 20 MR. NOMELLINI: Let me explain where I am trying to go 21 here. A comparison has been made between the San Joaquin 22 River Agreement operations under certain conditions and 23 interim operations of New Melones with regard to the impact 24 on the salinity at Vernalis. 25 The comparison shows that with the San Joaquin River CAPITOL REPORTERS (916) 923-5447 10345 1 Agreement there is some improvement over the Interim 2 Operations Plan results. I would like under 3 cross-examination to pursue the alternatives that were not 4 included in the comparison that I think reflect a bias on 5 the part of the Department of the Interior towards the San 6 Joaquin River Agreement and that they didn't analyze these 7 other alternatives. 8 C.O. STUBCHAER: Mr. O'Laughlin. 9 MR. O'LAUGHLIN: I renew my objection again. All this 10 should be stricken. If Mr. Nomellini wants to do that, I 11 think that is perfectly good grounds for Central Delta Water 12 Agency to come back and put in rebuttal testimony. That's 13 clearly outside the scope of her testimony and what she has 14 testified to. 15 That is like asking why didn't you look at this one, why 16 didn't you look at that, this and this and this. There is a 17 million things we can ask her that she didn't look at. That 18 is not the point of coming back on cross-examination and 19 rebuttal. 20 MR. NOMELLINI: That is exactly the point of 21 cross-examination. 22 C.O. STUBCHAER: Time-out a minute. 23 (Discussion held off the record.) 24 C.O. STUBCHAER: Mr. Nomellini, hate to interrupt your 25 side conversation. We are getting close to the edge of the CAPITOL REPORTERS (916) 923-5447 10346 1 rebuttal testimony. I will allow you to ask the witness if 2 she looked at water purchases or considered water purchases, 3 and then please don't take it much farther on the 4 alternatives. You have already gotten into the other fiscal 5 parts. 6 MR. NOMELLINI: Did you consider the possibility of the 7 CVP supplementing the Interim Operations Plan and New 8 Melones with water purchases for the purpose of meeting 9 either the fishery flows or the water quality requirements 10 at Vernalis? 11 MR. BRANDT: Objection. Vague as to -- are we talking 12 in the study or are we -- 13 MR. NOMELLINI: In the study. 14 MS. MANZA: Fishery flows where? On the Stanislaus 15 River or at Vernalis? 16 MR. NOMELLINI: At Vernalis. 17 MS. MANZA: This study does not look at water 18 purchases. The Interim Operations Plan simply looks at 19 allocations from New Melones Reservoir. 20 MR. NOMELLINI: With regard to the analysis of the 21 impacts of the San Joaquin River Agreement, which are 22 reflected in DOI 105-A, did you make any assumptions as to 23 the source of the water provided by the San Joaquin River 24 Agreement? 25 MS. MANZA: The San Joaquin River Agreement specifies CAPITOL REPORTERS (916) 923-5447 10347 1 that the water will come -- certainly quantities will come 2 from certain tributaries. So, yes, that was assumed. 3 MR. NOMELLINI: Other than allocation to a particular 4 tributary, did you make any assumptions as to the source of 5 water? 6 MS. MANZA: No, we do not. 7 MR. NOMELLINI: Is it possible that water from a 8 particular tributary could come from flows that would have 9 gone down the tributary at a different time of the year? 10 MS. MANZA: As performed, the study assumes that 11 contract deliveries will continue to be made as they were in 12 the base case. And so there was no change in delivery 13 patterns. 14 C.O. BROWN: Mr. Nomellini. 15 C.O. STUBCHAER: Mr. Brown. 16 C.O. BROWN: The Chairman was -- missed that question. 17 If I could ask you to ask it again. 18 C.O. STUBCHAER: Or we can have the answer read back. 19 Is it still on the screen? 20 (Record read as requested.) 21 MR. NOMELLINI: If I was argumentative, I would say it 22 is nonresponsive. 23 C.O. STUBCHAER: You are not arguing? 24 MR. NOMELLINI: Never am. 25 C.O. STUBCHAER: Thank you. CAPITOL REPORTERS (916) 923-5447 10348 1 MR. O'LAUGHLIN: What was the question? 2 MR. NOMELLINI: Did the study with regard to the impact 3 of the San Joaquin River Agreement on Vernalis water quality 4 take into consideration the potential for changing flows 5 down a particular tributary from summer to the spring pulse 6 flow period? 7 MS. MANZA: The study did not do that. 8 MR. NOMELLINI: Thank you. 9 C.O. STUBCHAER: Thank you, Mr. Nomellini. 10 Mr. O'Laughlin. 11 MR. O'LAUGHLIN: One second, Mr. Chairman. 12 No questions. 13 C.O. STUBCHAER: Mr. Herrick. 14 ---oOo--- 15 CROSS-EXAMINATION OF DEPARTMENT OF THE INTERIOR REBUTTAL 16 BY SOUTH DELTA WATER AGENCY 17 BY MR. HERRICK 18 MR. HERRICK: Thank you, Mr. Chairman, Board Members. 19 Ms. Manza, you stated that the Bureau did sort of an 20 initial study four and a half years ago on the recirculation 21 proposal; is that correct? 22 MS. MANZA: That is correct. 23 MR. HERRICK: Since this time has any further work by 24 the Bureau been done on this proposal? 25 MS. MANZA: Since then we have written a detailed study CAPITOL REPORTERS (916) 923-5447 10349 1 plan, outlining what we feel needs to be looked at in order 2 to thoroughly assess both the benefits and any potential 3 negative consequences of recirculation. 4 MR. HERRICK: Ms. Manza, is there some reason why you 5 haven't presented the Board with the detailed study plan? 6 MR. BRANDT: The study plan or the study? 7 MR. HERRICK: The study plan she just referred to. 8 MS. MANZA: I wasn't asked to. 9 MR. HERRICK: In the last four and a half years has the 10 Bureau done any projects to which recirculation could have 11 been an alternative? 12 MS. MANZA: I am sorry, could you repeat the question? 13 MR. HERRICK: Since that study, initial study four and 14 a half years ago, has the Bureau been involved with or gone 15 through any projects that could have used recirculation as 16 an alternative? 17 MS. MANZA: I am not sure I understand what you mean by 18 that. 19 MR. HERRICK: Has the Bureau done any purchases of 20 water in order to meet fishery flows in the San Joaquin 21 River system in the last four and a half years? 22 MR. O'LAUGHLIN: I am going to object. This is truly 23 outside the scope of the rebuttal testimony that was offered 24 by Mr. Brandt. What the linkup is between purchases of 25 water over the last four years has nothing to do with CAPITOL REPORTERS (916) 923-5447 10350 1 anything that Ms. Manza testified about in her direct. 2 C.O. STUBCHAER: I see the link as being tied to an 3 alternative to the recirculation plan, and so I do see a 4 connection. I think it may be tenuous in its connect to the 5 scope of the rebuttal testimony. 6 Mr. Herrick, do you wish to comment? 7 MR. HERRICK: If you are going to allow me to pursue 8 it, I don't think it will take long. If you want my comment, 9 then I -- 10 C.O. STUBCHAER: Please give your comment. 11 MR. HERRICK: Ms. Manza testified that they initiated a 12 study four and a half years ago. Then testified that other 13 than this outline of issues, they haven't done any further 14 work because no money has been budgeted for that. I think 15 it is valuable to explore the question as to why in the 16 numerous environmental studies that they've done in those 17 four and a half years that they could have used 18 recirculation as an alternative and they have not gone 19 forward with that. I don't think that is a budgeting 20 issue. 21 MR. O'LAUGHLIN: That is a question -- what he is 22 asking is a question about why you didn't look at 23 recirculation in EIRs and EISes that were done for water 24 purchases four or five years ago. What that has to do with 25 implementing the 1995 Water Quality Control Plan beats me. CAPITOL REPORTERS (916) 923-5447 10351 1 What it has to do with her direct testimony is irrelevant. 2 There is no linkup between that and water quality at 3 Vernalis. 4 C.O. STUBCHAER: Mr. Herrick. 5 MR. HERRICK: Her direct testimony was they haven't 6 done any further studies because money hasn't been budgeted 7 for that. I would say that that is a questionable 8 conclusion if they needed to analyze this as a alternative 9 in the numerous projects they've done in the last few years. 10 That is a valid point. 11 C.O. STUBCHAER: Mr. Birmingham. 12 MR. BIRMINGHAM: In fact, Mr. Chairman, her testimony 13 concerning why they haven't done further studies was in 14 response to my cross-examination of her. I will raise Mr. 15 Herrick's earlier objection from earlier today. He can't 16 cross on my cross, and I will object to it on this basis. 17 C.O. STUBCHAER: Mr. Herrick. 18 MR. HERRICK: The problem with this is I will just ask 19 the same questions that Mr. Birmingham asked. And if she 20 answers the same way, then I will proceed. That doesn't fit 21 here. 22 C.O. STUBCHAER: I am inclined to be lenient in this 23 matter because of the fact that it is rebuttal testimony. 24 We didn't have time to prepare. I will allow the questions 25 to be answered, but please base the questions on the direct CAPITOL REPORTERS (916) 923-5447 10352 1 testimony, not cross-examination. 2 MR. HERRICK: Thank you, Mr. Chairman. 3 Ms. Manza, do you need the question repeated? 4 MS. MANZA: Yes, please. 5 MR. HERRICK: In the last four and a half years since 6 the initial study by the Bureau, has the Bureau made any 7 purchases of water on the San Joaquin River system in order 8 to meet fishery flows or to help fishery flows? 9 C.O. STUBCHAER: If she knows. 10 MR. HERRICK: Certainly. 11 MS. MANZA: I believe that we have made some purchases 12 from Oakdale Irrigation District and perhaps South San 13 Joaquin Irrigation District to meet instream flows on the 14 Stanislaus River. 15 MR. HERRICK: Was further analysis done of the 16 possibility of recirculation to substitute for those 17 purchases done? 18 MS. MANZA: No, it was not. 19 MR. HERRICK: Was that done because of budgetary 20 constraints? 21 MS. MANZA: I am not a management person at 22 Reclamation. I cannot speak as to why management did or did 23 not consider recirculation as an alternative to water 24 acquisition. 25 MR. HERRICK: Ms. Manza, you are familiar with the CAPITOL REPORTERS (916) 923-5447 10353 1 proposal in South Delta Water Agency Exhibit Number 51, are 2 you not? 3 MS. MANZA: I have not read SDWA 51. 4 MR. HERRICK: Didn't you participate in the discussions 5 and review of modeling results that resulted in that 6 document? 7 MS. MANZA: I -- 8 MR. O'LAUGHLIN: Objection. He is referring to SDWA 51 9 and the modeling results were SDWA 12. 10 MR. HERRICK: I am sorry. 11 I apologize for that. I am talking about SDWA 12, 12 which is the SJRIO study, so let me ask that question 13 again. 14 You participated in the discussions and review of 15 modeling results that eventually resulted in this study, 16 didn't you? 17 MS. MANZA: Yes, I did. 18 MR. HERRICK: During those discussions, did the parties 19 attempt to reasonably work out resolutions to questions 20 about the effectiveness of what the modeling would show? 21 MS. MANZA: What do you mean by resolving questions 22 about effectiveness of modeling? 23 MR. HERRICK: During the development of the document, 24 weren't there discussions about what assumptions should be 25 made or, perhaps, changes to models or things like that so CAPITOL REPORTERS (916) 923-5447 10354 1 the results would -- the parties could have confidence in 2 the results? 3 MS. MANZA: There were, of course, discussions as to 4 what the assumptions should be. There was not general 5 agreement in all cases on the assumptions. However, it was 6 decided that because it is a comparative analysis that some 7 parties could live without the assumptions being exactly 8 what they wanted them to be. 9 MR. HERRICK: Could you identify any assumptions that 10 were used for the study that you disagreed with? 11 MS. MANZA: For one, that the operation of New Melones 12 was not based on the Interim Operation Plan. It was based 13 on fishery flows ranging from 98,000 acre-feet to 302,000 14 acre-feet, not the AFRP flows that we were trying to target 15 in the Interim Operations Plan. 16 MR. HERRICK: If the results had included the Interim 17 Operation Plan, do you have an opinion as to whether or not 18 the conclusions of the study would be different? 19 MR. BIRMINGHAM: Again, the study is South Delta Water 20 Agency Exhibit 12? 21 MR. HERRICK: Correct. 22 MS. MANZA: The results would necessarily be different 23 because the instream flow requirement for AFRP is generally 24 higher than the 1987 -- I always get this confused -- the 25 1987 fishery agreement whereby we released between 98 to CAPITOL REPORTERS (916) 923-5447 10355 1 302,000 acre-feet. So, generally, there is more water under 2 the Interim Operation Plan. There is more water coming down 3 the stream. The AFRPs do include a pulse flow, if you would 4 call it that, during the springtime, the April/May period. 5 So there would be a larger volume of water coming down to 6 already help meet the standards at Vernalis which would 7 somewhat reduce the need for recirculation quantities. 8 It also reduces the amount of water in the reservoir 9 available for releases later on in the year. 10 MR. HERRICK: If South Delta Number 12 had used the 11 Interim Operation Plan, there would have been more water 12 flowing downstream during the pulse flow for fisheries; is 13 that one of the things you said? 14 MS. MANZA: Without actually doing it, I cannot say for 15 sure. But based on my experience, that would be the result 16 that I would expect. 17 MR. HERRICK: If there were more water coming down 18 during the pulse flow from New Melones, there would be less 19 water for the rest of the year for water quality purposes; 20 is that correct? 21 MS. MANZA: That would generally be true. 22 MR. HERRICK: So, the result of this study would show a 23 different potential improvement on water quality, not the 24 one that is shown; is that correct? 25 MR. BIRMINGHAM: May I inquire, is Mr. Herrick trying CAPITOL REPORTERS (916) 923-5447 10356 1 to attack the reliability of one of his own exhibits? 2 C.O. STUBCHAER: Who is that a question to? 3 MR. O'LAUGHLIN: Is that a question or statement? 4 MR. BIRMINGHAM: I guess I will object on the grounds 5 of relevance. Under rules, certain rules that would apply 6 in court, I am not sure Mr. Herrick would be allowed to ask 7 these questions. He is trying to impeach his own evidence. 8 C.O. STUBCHAER: I have a different impression, Mr. 9 Herrick. The questions are kind of not as focused as they 10 might be. We are not getting anyplace. 11 MR. HERRICK: Notwithstanding everybody's enjoyment, 12 Mr. Chairman. The witness -- I am trying to go through the 13 assumptions or, excuse me, the modeling assumptions that she 14 disagreed with and examine how that might result in her 15 changing her opinion. 16 I think the point is, which I haven't been able to get 17 to yet, is that -- this is an offer of proof, I guess -- 18 that South Delta 12 shows an effect and improvement and 19 whether or not it is an improvement way over here or here or 20 here, it shows an improvement. And that is eventually the 21 question I am trying to get to with this witness. 22 I don't think that impeaches Alex Hildebrand. 23 C.O. STUBCHAER: See if we can get to that in a sharp 24 manner. 25 MR. HERRICK: No problem. CAPITOL REPORTERS (916) 923-5447 10357 1 Excuse me? 2 MR. O'LAUGHLIN: Ask if South Delta Water Agency is an 3 improvement. 4 C.O. STUBCHAER: Mr. O'Laughlin, was that comment on 5 the record? 6 THE COURT REPORTER: Yes. 7 MR. HERRICK: Ms. Manza, is it your understanding the 8 results of South Delta 12 show an improvement in water 9 quality in a direction as opposed to absolute numbers that 10 should be relied upon? 11 MS. MANZA: SDWA 12 showed a slight improvement in 12 Reclamation's ability to meet water quality. 13 MR. HERRICK: If the underlying amounts of water coming 14 down New Melones were changed, do you believe that would 15 change the fact that it showed a slight improvement? 16 MS. MANZA: There would be, obviously, a different 17 change because the recirculation quantities would be 18 different. I am unable to estimate what that change would 19 be or what direction it would go in. 20 MR. HERRICK: You stated that one of your concerns 21 that needs further investigation is what is the impact on 22 CVP contractors. What portion of the South Delta Number 12 23 talks about doing recirculation if there are impacts to 24 export contractors? 25 MS. MANZA: SDWA 12 had in it an assumption that there CAPITOL REPORTERS (916) 923-5447 10358 1 would be no net loss to contractors, so it does not discuss 2 what would happen if there was an impact to contractors. It 3 was not analyzed. 4 MR. HERRICK: So your concern, as stated in DOI 104, is 5 if it were implemented and did have an impact, you would 6 like to know what the impacts are; is that correct? 7 MS. MANZA: That's correct. Reclamation would like to 8 know the scope and magnitude of the impacts to the 9 contractors. 10 MR. HERRICK: Your second bullet point is: Is there 11 sufficient space in the Delta-Mendota Canal? Is there some 12 reason why you didn't find out the exact carrying capacity 13 of the Delta-Mendota Canal for our presentation today? 14 MS. MANZA: As I stated earlier, the capacity of the 15 DMC varies from the Delta to Mendota Pool. It starts out 16 very large and gradually reduces its capacity. It's at its 17 minimum at Mendota Pool. I do not know what that minimum 18 is. I felt that the relevant number was what is the 19 capacity of the DMC at the Newman Wasteway. 20 MR. HERRICK: I understand this. 21 Is there some reason why you didn't ask an operator or 22 somebody who would know and have that information available 23 for your testimony? 24 MS. MANZA: I didn't feel that I needed to have that 25 number for today. I wasn't aware I would need it. CAPITOL REPORTERS (916) 923-5447 10359 1 MR. HERRICK: Your next bullet deals with: Would the 2 quality of water being recirculated be changed over the 3 duration of the entire recirculation period? Are you aware 4 of the Interim South Delta Program going on right now? 5 MS. MANZA: Are you referring to the barriers program? 6 MR. HERRICK: Yes. ISDP. 7 MS. MANZA: I am aware there is a program. 8 MR. HERRICK: You participated in the development of 9 South Delta 12; is that correct? 10 MS. MANZA: I sat in on the work groups who had 11 discussions about the modeling and who reviewed the 12 modeling. I did not perform any of the modeling. 13 MR. HERRICK: Of course, in both those, I will say, 14 processes I just mentioned, ISDP and development of the 15 study, those issues of modeling water quality is done, isn't 16 it? 17 MR. BIRMINGHAM: Objection. Ambiguous. 18 C.O. STUBCHAER: I think I understand the question, but 19 does the witness understand the question or do you want it 20 made clear? 21 MS. MANZA: The witness does not understand and was 22 going to ask what he meant by water quality issues? 23 C.O. STUBCHAER: Try again, please, Mr. Herrick. 24 MR. HERRICK: On Page 7 of South Delta 12 it talks 25 about the results and the second paragraph from the bottom CAPITOL REPORTERS (916) 923-5447 10360 1 specifies the water quality at Vernalis, according to the 2 modeling, and also the water quality at Crows Landing. 3 Do you see that? 4 MS. MANZA: Just give me a second. 5 MR. HERRICK: Second paragraph from the bottom. 6 MS. MANZA: Yes. I see the paragraph. 7 MR. HERRICK: Were there any assumptions that were used 8 in the modeling that resulted in South Delta 12 that you 9 disagreed with that would relate to these findings? 10 MS. MANZA: As stated in my testimony, Exhibit 104, and 11 I wouldn't use the word "disagreed with," per se, because 12 assumptions do need to be made in studies. You can't always 13 look at all aspects of everything. But it was a concern 14 then and remains a concern that there was an assumption that 15 the quality of water would not be changed as it is 16 circulated through the Delta. We, Reclamation simply feels 17 that that is an issue that needs more study, if that is 18 really true. 19 MR. HERRICK: Did the other parties that were involved 20 in producing South Delta 12 disagree with that issue when 21 you brought it up in the development of this? 22 MS. MANZA: There were some parties who felt that water 23 quality would actually be improved by recirculation because 24 of the affect of the barriers. Having the barriers in place 25 was a predicated assumption in this study. CAPITOL REPORTERS (916) 923-5447 10361 1 MR. HERRICK: Did you disagree with that? 2 MS. MANZA: I do not know enough about the effect of 3 the barriers to either agree or disagree with that 4 statement. Recirculation has not been done yet, so we do 5 not know for sure what the effect would be with or without 6 the barriers in place. 7 MR. HERRICK: Doesn't the Interim South Delta Program 8 examine those changes in water quality resulting from the 9 existence of the various barriers in that program? 10 MS. MANZA: I am not aware of what sampling or studies 11 are being done as a result of the Interim South Delta 12 Program. However, they cannot be studying the effects of 13 the recirculation on the water quality because we are not 14 doing recirculation. 15 MR. HERRICK: Do you know whether or not the studies 16 done for the ISDP measure the changes of the water that 17 reaches the pumps, whether it goes directly to South Delta 18 or is routed around through the Central Delta? 19 MS. MANZA: I don't know what studies they are doing. 20 MR. HERRICK: Wouldn't a study such as that be part of 21 the investigation as to whether or not the recirculation on 22 water quality remain the same or change? 23 MS. MANZA: A study such as that would certainly be one 24 part of it. The second part of it would be testing the 25 water quality as it comes back into Vernalis once it has CAPITOL REPORTERS (916) 923-5447 10362 1 been recirculated. 2 MR. HERRICK: Your fourth bullet says: Would higher 3 deliveries to refuges reduce TDS as much as SDWA 12 4 estimates? You state below that heading that it then 5 assumes in the report a TDS reduction of 50 percent in 6 return flow quality due to higher deliveries. 7 Isn't it true that what it assumes is a 50-percent 8 reduction in the drainage of that extra water, not all of 9 the drainage? 10 MS. MANZA: Are you saying that it is assuming only 50 11 percent of the water will return instead of the 100 percent 12 of the prior return flows? 13 MR. HERRICK: No. Reduction in TDS. Isn't the 14 50-percent reduction that you referenced in your bullet 15 number four, doesn't that refer to that 50-percent reduction 16 in TDS of the drainage water from the wetlands? 17 MS. MANZA: Let me see if I understand your question 18 correctly. 19 Are you asking me is the 50-percent TDS reduction 20 strictly limited to the return flows from the refuge 21 delivery? 22 MR. HERRICK: Correct. 23 MS. MANZA: Yes. 24 MR. HERRICK: Your fifth bullet talks about: Would 25 Reclamation be able to replace the water needed to prime the CAPITOL REPORTERS (916) 923-5447 10363 1 system? 2 Didn't the discussions -- did the discussions that led 3 to the development of South Delta 12, didn't it include 4 investigations of this issue? 5 MS. MANZA: No, it did not, again it was assumed that 6 it would be possible because the pumping was on top of any 7 current export restrictions. 8 MR. HERRICK: You next state under this bullet: Also, 9 SDWA 12 did not analyze Reclamation's ability to repay San 10 Luis at the end of the recirculation period. 11 Is it your testimony that South Delta 12 doesn't 12 include sufficient amount of days of recirculation in order 13 to return that same water back to San Luis? 14 MS. MANZA: I'm sorry, I must be confused. I thought 15 that your first question was asking did we analyze the 16 potential to repay San Luis. 17 Isn't that what you just asked me? 18 MR. HERRICK: The prior question was priming the 19 system. 20 MS. MANZA: I am sorry, I may have misstated my answer, 21 then. Could you go back to that question? 22 MR. HERRICK: The first question, or the original 23 question was: Wasn't the issue of interruptions in DMC flow 24 in order to prime the system, wasn't that discussed in the 25 process that led to SDWA 12? CAPITOL REPORTERS (916) 923-5447 10364 1 MS. MANZA: I do not remember any discussions about 2 impacts to contractors during the period in which the DMC 3 would be back flowed to prime the Newman Wasteway. 4 MR. HERRICK: The next question was: You expressed a 5 concern that SDWA 12 didn't analyze Reclamation's ability to 6 repay San Luis at the end of the recirculation period. 7 MS. MANZA: Yes. That is the question I answered the 8 first time; is that they did not look at that. It was 9 assumed that it could be repaid because the export pumping 10 was not restricted. It would simply be that we were 11 pumping beyond our export restrictions. 12 MR. HERRICK: Are you questioning then whether or not 13 there is sufficient additional export capacity for the few 14 days after the 31-day pulse flow it would take to reprime 15 the system? 16 MS. MANZA: Both capacity and quantity. 17 MR. HERRICK: The quantity is the same amount of water 18 that was put through before; isn't it? 19 MS. MANZA: That's correct. 20 MR. HERRICK: So unless somebody intercepts that water, 21 the quantity is available, wouldn't it be, absent 22 evaporation? 23 MS. MANZA: Absent evaporation and other losses, there 24 would be that quantity of water in the Delta, yes. It 25 should be there, but we need to make sure. CAPITOL REPORTERS (916) 923-5447 10365 1 MR. HERRICK: We referenced under AFRP that there is a 2 ramping up of pumping after that 31-day period, so we know 3 there is unused pumping capacity at that time, don't we? 4 MR. BRANDT: At which time? Objection. Vague. 5 MR. HERRICK: The time immediately after the 31-day 6 pulse flow. 7 MS. MANZA: I do not know what the level of export 8 pumping, allowable export pumping is as compared to the 9 contractors' demands at that time, so I cannot state whether 10 or not, categorically, there is pumping available. 11 MR. HERRICK: But you did state that you knew there was 12 a ramping up of that low pulse flow pumping after the pulse 13 flow period; is that correct? 14 MS. MANZA: No, it is not. Actually, I didn't state 15 that. 16 MR. HERRICK: Are you aware of a ramping up period in 17 export pumping that follows a pulse flow period? 18 MS. MANZA: No, I have not been aware of that. I don't 19 deal a lot with Delta pumping. 20 MR. HERRICK: Let's assume that there is a ramping up 21 going from the low export restrictions during the pulse flow 22 up to whatever the export restriction is after the pulse 23 flow. If there is a ramping up, would you agree that there 24 is pumping capacity available to refill San Luis Reservoir 25 with the primed water? CAPITOL REPORTERS (916) 923-5447 10366 1 MS. MANZA: Again, I do not know what those export 2 limitations are, even though they are being ramped up as 3 compared to the contract demands on the DMC at that time. I 4 cannot categorically say that there is pumping capacity 5 available to prime San Luis. That is why we considered it 6 an issue, simply something to look at. 7 We are not saying it is prohibitive. We simply need to 8 check it out. Those are items that have not yet been 9 analyzed. 10 MR. HERRICK: The sixth bullet on your DOI Number 104 11 talks about the Newman Wasteway has been used in the last 12 few years for periodic low flows. I am not quoting. 13 What are those uses in the last few years as best you 14 know? 15 MS. MANZA: There was, I believe it was about two years 16 ago, a small water purchase made from the exchange 17 contractors that was run through the Newman Wasteway. My 18 understanding is that it was relatively low flow for a short 19 duration. But I am aware that that did happen. I don't 20 know the exact volume of flow. I was simply made aware that 21 it was happening. 22 Also, I understand that there are some very small flows 23 that do occur in the Newman Wasteway on occasion. 24 MR. HERRICK: Who made the purchase that you referred 25 to in the first part of your answers? Was that a Bureau CAPITOL REPORTERS (916) 923-5447 10367 1 purchase of water? 2 MS. MANZA: I am not sure. I believe it was a Bureau 3 acquisition of water. 4 MR. HERRICK: Is there some reason why you didn't find 5 out what the amount and duration of that flow was before 6 your testimony today? 7 MS. MANZA: It simply didn't occur to me to look for 8 that information. 9 MR. HERRICK: So, we really don't know if at least that 10 flow is substantially different than the flows proposed by 11 SDWA 12, do we? 12 MS. MANZA: My understanding is that it was a 13 relatively low flow, while SDWA 12 on occasion calls for 14 some rather large volumes of recirculation. But because I 15 do not know the exact flow number, I cannot answer that 16 question for you. 17 MR. HERRICK: Weren't the flows for SDWA 12 referred to 18 by you as either from 90 cfs to 2,000 cfs? 19 MS. MANZA: That would sound about right. 20 MR. HERRICK: Is 90 in the same category of low flows 21 which you referred to on these other matters? 22 MS. MANZA: I would certainly consider 90 cfs to be a 23 low flow. 24 MR. HERRICK: It would be fairly easy for us to 25 determine what these prior flows were and compare them to CAPITOL REPORTERS (916) 923-5447 10368 1 the proposal in SDWA 12, wouldn't it? 2 MS. MANZA: I would think that should be possible. 3 SDWA 12, also, our concern is to make sure that the 4 structure can safely carry flows for extended periods of 5 time. That is the second part of the concern. 6 MR. HERRICK: Did you state that you believe the Newman 7 Wasteway was built as an outlet to transfer the DMC flows in 8 times of need or flood or something? I didn't quite catch 9 that. 10 MS. MANZA: What I said was it is my understanding that 11 the wasteways are designed to be able to quickly evacuate 12 the DMC in case of emergency or in case of need of repair, 13 which would basically be an emergency. 14 MR. HERRICK: So, would you assume that the wasteways 15 have somewhere near the capacity of the canal that they are 16 supposed to evacuate on short notice? 17 MS. MANZA: Yes. The wasteways are supposed to have 18 approximately the same carrying capacity as the DMC does at 19 the point at which they are located. 20 MR. HERRICK: If you believe that the wasteway is 21 designed to take somewhere near the same flow that is in the 22 DMC, would you make any assumption then as to whether or not 23 it was designed to handle that flow? 24 MS. MANZA: As stated earlier, there may -- and I say 25 may because I am not a design engineer and I have not seen CAPITOL REPORTERS (916) 923-5447 10369 1 the design specifications for the Newman Wasteway. But I 2 believe that there may be a difference in design of a 3 structure when its intended use is for very periodic flow, 4 even though it may be high flow, but of extremely short 5 duration, as compared to prolonged high flows through the 6 structure. 7 MR. HERRICK: The Bureau's study four and a half years 8 ago didn't compare the design capability of that Newman 9 Wasteway? 10 MS. MANZA: No. We do not. That is why at the time 11 it was highlighted as something that did need to be looked 12 into to make sure that this was a viable alternative. 13 MR. HERRICK: Didn't the Bureau build the Newman 14 Wasteway? 15 MS. MANZA: I believe so. 16 MR. HERRICK: Wouldn't the Bureau then have all that 17 information about capacity design specifics? 18 MS. MANZA: Yes, it should. That is why we saying we 19 needed to be a able to spend the time to look at it and 20 answer that question. 21 MR. HERRICK: In preparation for your testimony today 22 did you ask anybody about those issues to see if there was 23 an easy answer? 24 MS. MANZA: No, I did not. 25 MR. HERRICK: Let's talk about the potential need for CAPITOL REPORTERS (916) 923-5447 10370 1 structural modifications. I understood you to say that that 2 included whether or not you needed to do dredging or 3 cleaning out of the structures; is that correct? 4 MS. MANZA: Yes, that is correct. 5 MR. HERRICK: In order for the wasteway to perform its 6 normal function, wouldn't it have to be periodically cleaned 7 out in order to make sure it can carry the same amount of 8 water as originally designed? 9 MS. MANZA: That is actually a maintenance function, 10 and I am not familiar with what our maintenance routines 11 are. 12 MR. HERRICK: Did you ask anybody whether the structure 13 needed periodic maintenance in preparation for your 14 testimony today? 15 MS. MANZA: No, I did not. 16 MR. HERRICK: Did you ask anybody whether or not such 17 maintenance has been occurring in preparation for your 18 testimony today? 19 MS. MANZA: I did not. Those are questions we'd ask 20 and get answers to under our detailed study proposal. 21 MR. HERRICK: Who might we call at the Bureau to get 22 that answer? 23 MS. MANZA: I haven't the foggiest. I really don't. 24 400 is the -- I don't know. I would start high. 25 MR. O'LAUGHLIN: Start high and aim low. CAPITOL REPORTERS (916) 923-5447 10371 1 MS. MANZA: They will delegate you to the appropriate 2 person. 3 MR. HERRICK: We've gone through that with the Bureau. 4 Thank you. 5 Your last bullet talks about the affect of the Newman 6 Wasteway on fishery resources. And I believe you stated 7 that there were various questions raised in the forums 8 leading to South Delta 12 that presented those questions; is 9 that correct? 10 MS. MANZA: There has been one main issue that I have 11 heard raised. 12 MR. HERRICK: You said that issue was imprinting; is 13 that correct? 14 MS. MANZA: Yes, salmon smolt imprinting. 15 MR. HERRICK: Do you know whether that issue about 16 salmon smolt imprinting was also raised with regard to 17 increases of flows to the wetlands that are referenced in 18 the report? 19 MS. MANZA: No, I don't know if it was raised with 20 regard to that. 21 MR. HERRICK: Has that been -- has that issue been 22 raised with regard to changing the upstream flows on the 23 various upstream tributaries? 24 MS. MANZA: That would basically be the SJRA Agreement. 25 I have not attended any meetings where there were fishery CAPITOL REPORTERS (916) 923-5447 10372 1 biologists present and the SJRA was being discussed to know 2 whether or not they raised that issue. 3 MR. HERRICK: Is the Bureau interested, as you're 4 interested here, in knowing those potential imprinting 5 impacts caused by additional deliveries to the wetlands? 6 MR. BRANDT: This is going outside the scope. She has 7 already testified that she is not involved in that. 8 C.O. STUBCHAER: Sustained. 9 MR. HERRICK: Just a final one on the first part of 10 your testimony, Ms. Manza. 11 Would it jog your recollection if I said that the 12 capacity of The Newman Wasteway is somewhere around 4,300 13 cfs? Have you seen that number before? 14 MS. MANZA: My understanding is that the capacity of 15 the Newman Wasteway is approximately 3,300 cfs, the design 16 capacity. 17 MR. HERRICK: I would like to ask the same question 18 that somebody else asked you with regard to the Interim 19 Operation Plan of New Melones. That question was: Does 20 the Bureau meet the water quality standard as measured at 21 Vernalis in every year type, in every year? 22 MR. BRANDT: Objection. 23 MR. O'LAUGHLIN: Asked and answered. He already 24 admitted the question has been asked and answered. 25 C.O. STUBCHAER: Mr. Herrick, I think the -- CAPITOL REPORTERS (916) 923-5447 10373 1 MR. HERRICK: I understand that, but I want to follow 2 up on the answer. 3 C.O. STUBCHAER: That has been asked and answered. 4 MR. HERRICK: I am trying to get her back on the same 5 track we were earlier so I can ask follow-up questions. 6 I'll go to the follow-up question. 7 C.O. STUBCHAER: Okay. 8 MR. HERRICK: Your analysis of the frequency of water 9 quality violations covers the 1922 through 1992 period; is 10 that correct? 11 MS. MANZA: That's correct. 12 MR. HERRICK: I believe -- would you agree that the 13 violations tend to be in the drier years, not in the wet and 14 above normal years? 15 MS. MANZA: Yes. 16 MR. HERRICK: I believe you said that earlier. Are you 17 familiar with Mr. Dan Steiner's testimony that has been 18 given earlier in these proceedings? 19 MS. MANZA: I did not attend the hearings. I did not 20 hear him, and I have not reviewed his testimony. 21 MR. HERRICK: Did you use any of his analyses regarding 22 the effects of the San Joaquin River Agreement in producing 23 your charts that you made, your tables? 24 MR. BIRMINGHAM: By your charts you mean? 25 MR. HERRICK: DOI 105-A. CAPITOL REPORTERS (916) 923-5447 10374 1 MS. MANZA: The runs that were used were SJRA pulse 2 flow in the May run. That is the same run that Mr. Steiner 3 used in his analysis. 4 MR. HERRICK: What I am trying to say is, did you rerun 5 it after putting in input or did you use the results that 6 came out of it? 7 MS. MANZA: I used the results thereof. 8 MR. HERRICK: If the water quality violations, the 9 number of years of water quality violations, is somewhere 10 around 42 percent, 41 percent, whatever that is, that 11 includes the years when there is typically no problem for 12 water quality? That includes the wet or above normal years? 13 MS. MANZA: Are you speaking of under interim 14 operations or SJRA? 15 MR. HERRICK: Interim operations. 16 MS. MANZA: Yes, that is percentage of the total years. 17 MR. HERRICK: If we thought that that might be 18 misleading, the only time that there are really problems are 19 below dry and critical years, wouldn't the percentage of 20 violations increase if we removed the wet and above normal 21 years? 22 MS. MANZA: Certainly. 23 MR. HERRICK: Again, just using Mr. Steiner's testimony 24 on Page 14 of his, I will just make this a hypothetical. I 25 won't test your knowledge of reading his chart. I count 18 CAPITOL REPORTERS (916) 923-5447 10375 1 wet years and 14 above normal years. So, if we took 32 2 years out of your calculation, wouldn't the times when there 3 is a violation be much, much greater than 42 percent? 4 MS. MANZA: I believe you just jumped from interim plan 5 to SJRA. 6 MR. HERRICK: No. 7 MS. MANZA: But you said based on Dan Steiner's 8 testimony. 9 MR. HERRICK: I believe he examines both, doesn't he? 10 MS. MANZA: Are you referring to his base case? 11 MR. HERRICK: I am referring to his references of what 12 the year type was. I am not referring to his numbers. 13 MR. BIRMINGHAM: I think Mr. Herrick can ask the Board 14 to take official notice of the fact that if you reduce the 15 number of years that are contained in the denominator, that 16 affects the percentage. 17 MR. BRANDT: I will stipulate to that. 18 C.O. STUBCHAER: Also, you can cite that in your 19 closing arguments. 20 MR. HERRICK: Does that mean we were getting close to 21 making a point? 22 MR. BIRMINGHAM: I am reminded of an objection that an 23 old curmudgeon lawyer has that I am going to start making. 24 It is an objection based on shortness of life. 25 MR. NOMELLINI: I object to the objection. CAPITOL REPORTERS (916) 923-5447 10376 1 C.O. STUBCHAER: That assumes that -- never mind. 2 Mr. Herrick, how are you doing? 3 MR. HERRICK: How am I doing in response to comments 4 from the audience? 5 I may be able to finish. 6 C.O. STUBCHAER: It is not just you. We have the 7 staff, and then we have the Board Members and others. I was 8 just -- we will see. 9 MR. HERRICK: I could easily go another half an hour, 10 if you want to take a break. 11 C.O. STUBCHAER: If we go to four, does that mean that 12 you won't go another half hour? Is that a stipulation? 13 MR. HERRICK: No. 14 MR. BRANDT: We start to have witness problems. We 15 have another witness following this that is only available 16 next Tuesday. 17 MR. O'LAUGHLIN: Maybe available on Wednesday, but we 18 don't know. 19 MR. BRANDT: At this point he's only available next 20 Tuesday. 21 C.O. STUBCHAER: You don't know if you are going to 22 have redirect or not. 23 MR. BRANDT: No, I will not have any redirect. We 24 potentially can get this done if we get yours done in the 25 next ten minutes. If we can stay a bit later, we may be CAPITOL REPORTERS (916) 923-5447 10377 1 able to get this done today. 2 C.O. STUBCHAER: Mr. Herrick, I will ask again. What 3 time are you willing to stipulate to finish your 4 cross-examination of this witness? 5 MR. HERRICK: This is very difficult. This is 6 cross-examination of testimony that we've never seen until a 7 little while ago. All I can say is I can easily have 8 another half an hour of questions. 9 C.O. STUBCHAER: Mr. Brandt, can Ms. Manza return on 10 the next hearing date? 11 MR. BRANDT: We are not sure. We will need to check. 12 Presumably she can come back that afternoon. We have Mike 13 Thabault, as well. 14 My concern in some ways is that we may take a full day, 15 and I would like to get him done that day, if we could. I 16 will leave that to you if we can get that done. That would 17 be helpful. 18 C.O. STUBCHAER: Mr. Herrick. 19 MR. HERRICK: I could certainly, again with preparation 20 going on after we go home, I could certainly make sure that 21 I finish her very, very briefly or as brief as possible 22 Tuesday afternoon, if that helps. 23 C.O. STUBCHAER: Then we just have the staff and Board 24 Members, so it ought to go pretty quickly. I don't want to 25 go much later today because we have a Board meeting CAPITOL REPORTERS (916) 923-5447 10378 1 tomorrow, and some of the Board members haven't had an 2 opportunity to go over the board agendas yet. We have 3 voting. 4 C.O. BROWN: 4:00 briefing. 5 C.O. STUBCHAER: That cinches it. We will adjourn for 6 the day and then resume Tuesday, 9:00 o'clock, with the 7 understanding that Ms. Manza will try to be here right after 8 lunch. Put her on immediately right after lunch, if 9 something else is going on, finish the cross-examination. 10 Do the exhibits then. 11 MR. BRANDT: We will try to do our best. 12 MR. HERRICK: Thank you, Mr. Chairman. 13 (Hearing adjourned at 3:55 p.m.) 14 ---oOo--- 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 10379 1 REPORTER'S CERTIFICATE 2 3 4 STATE OF CALIFORNIA ) ) ss. 5 COUNTY OF SACRAMENTO ) 6 7 8 I, ESTHER F. WIATRE, certify that I was the 9 official Court Reporter for the proceedings named herein, 10 and that as such reporter, I reported in verbatim shorthand 11 writing those proceedings; 12 That I thereafter caused my shorthand writing to be 13 reduced to typewriting, and the pages numbered 10187 through 14 10379 herein constitute a complete, true and correct record 15 of the proceedings. 16 17 IN WITNESS WHEREOF, I have subscribed this certificate 18 at Sacramento, California, on this 27th day of February 19 1999. 20 21 22 23 24 ______________________________ ESTHER F. WIATRE 25 CSR NO. 1564 CAPITOL REPORTERS (916) 923-5447 10380