STATE WATER RESOURCES CONTROL BOARD PUBLIC HEARING 1998 BAY-DELTA WATER RIGHTS HEARING HELD AT 901 P STREET SACRAMENTO, CALIFORNIA TUESDAY, FEBRUARY 23, 1999 9:00 A.M. Reported by: MARY GALLAGHER, CSR #10749 CAPITOL REPORTERS (916) 923-5447 1 APPEARANCES ---oOo--- 2 3 BOARD MEMBERS: 4 JAMES STUBCHAER, CO-HEARING OFFICER JOHN W. BROWN, CO-HEARING OFFICER 5 MARC DEL PIERO MARY JANE FORSTER 6 7 STAFF MEMBERS: 8 THOMAS HOWARD - Supervising Engineer VICTORIA A. WHITNEY - Senior Engineer 9 10 COUNSEL: 11 WILLIAM R. ATTWATER - Chief Counsel WALTER PETTIT - Executive Director 12 BARBARA LEIDIGH - Senior Staff Counsel 13 ---oOo--- 14 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 10382 1 REPRESENTATIVES 2 PRINCETON CODORA GLENN IRRIGATION DISTRICT, et al. 3 FROST, DRUP & ATLAS 4 134 West Sycamore STreet Willows, California 95988 5 BY: J. MARK ATLAS, ESQ. 6 JOINT WATER DISTRICTS: 7 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 8 Oroville, California 95965 BY: WILLIAM H. BABER, III, ESQ. 9 CALIFORNIA SPORTFISHING PROTECTION ALLIANCE: 10 ROBERT J. BAIOCCHI 11 P.O. Box 357 Quincy, California 95971 12 BELLA VISTA WATER DISTRICT: 13 BRUCE L. BELTON, ESQ. 14 2525 Park Marina Drive, Suite 102 Redding, California 96001 15 WESTLANDS WATER DISTRICT: 16 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 17 400 Capitol Mall, 27th Floor Sacramento, California 95814 18 BY: THOMAS W. BIRMINGHAM, ESQ. AMELIA MINABERRIGARAI, ESQ. 19 THE BAY INSTITUTE OF SAN FRANCISCO: 20 GRAY BOBKER 21 55 Shaver Street, Suite 330 San Rafael, California 94901 22 CITY OF ANTIOCH, et al.: 23 FREDERICK BOLD, JR., ESQ. 24 1201 California Street, Suite 1303 San Francisco, California 94109 25 CAPITOL REPORTERS (916) 923-5447 10383 1 REPRESENTATIVES 2 LEAGUE OF WOMEN VOTERS: 3 ROBERTA BORGONOVO 4 2480 Union Street San Francisco, California 94123 5 UNITED STATES DEPARTMENT OF THE INTERIOR: 6 OFFICE OF THE SOLICITOR 7 2800 Cottage Way, Roon E1712 Sacramento, California 95825 8 BY: ALF W. BRANDT, ESQ. 9 CALIFORNIA URBAN WATER AGENCIES: 10 BYRON M. BUCK 455 Capitol Mall, Suite 705 11 Sacramento, California 95814 12 RANCHO MURIETA COMMUNITY SERVICES DISTRICT: 13 MCDONOUGH, HOLLAND & ALLEN 555 Capitol Mall, 9th Floor 14 Sacramento, California 95814 BY: VIRGINIA A. CAHILL, ESQ. 15 CALIFORNIA DEPARTMENT OF FISH AND GAME: 16 OFFICE OF THE ATTORNEY GENERAL 17 1300 I Street, Suite 1101 Sacramento, California 95814 18 BY: MATTHEW CAMPBELL, ESQ. 19 NATURAL RESOURCES DEFENSE COUNCIL: 20 HAMILTON CANDEE, ESQ. 71 Stevenson Street 21 San Francisco, California 94105 22 ARVIN-EDISON WATER STORAGE DISTRICT, et al.: 23 DOOLEY HERR & WILLIAMS 3500 West Mineral King Avenue, Suite C 24 Visalia, California 93191 BY: DANIEL M. DOOLEY, ESQ. 25 CAPITOL REPORTERS (916) 923-5447 10384 1 REPRESENTATIVES 2 SACRAMENTO MUNICIPAL UTILITY DISTRICT: 3 LESLIE A. DUNSWORTH, ESQ. 4 6201 S Street Sacramento, California 95817 5 SOUTH SAN JOAQUIN IRRIGATION DISTRICT, et al.: 6 BRAY, GEIGER, RUDQUIST & NUSS 7 311 East Main Street, 4th Floor Stockton, California 95202 8 BY: STEVEN P. EMRICK, ESQ. 9 EAST BAY MUNICIPAL UTILITY DISTRICT: 10 EBMUD OFFICE OF GENERAL COUNSEL 375 Eleventh Street 11 Oakland, California 94623 BY: FRED ETHERIDGE, ESQ. 12 GOLDEN GATE AUDUBON SOCIETY: 13 ARTHUR FEINSTEIN 14 2530 San Pablo Avenue, Suite G Berkeley, California 94702 15 CONAWAY CONSERVANCY GROUP: 16 UREMOVIC & FELGER 17 P.O. Box 5654 Fresno, California 93755 18 BY: WARREN P. FELGER, ESQ. 19 THOMES CREEK WATER ASSOCIATION: 20 THOMES CREEK WATERSHED ASSOCIATION P.O. Box 2365 21 Flournoy, California 96029 BY: LOIS FLYNNE 22 COURT APPOINTED REPS OF WESTLANDS WD AREA 1, et al.: 23 LAW OFFICES OF SMILAND & KHACHIGIAN 24 601 West Fifth Street, Seventh Floor Los Angeles, California 90075 25 BY: CHRISTOPHER G. FOSTER, ESQ. CAPITOL REPORTERS (916) 923-5447 10385 1 REPRESENTATIVES 2 CITY AND COUNTY OF SAN FRANCISCO: 3 OFFICE OF THE CITY ATTORNEY 4 1390 Market Street, Sixth Floor San Francisco, California 94102 5 BY: DONN W. FURMAN, ESQ. 6 CAMP FAR WEST IRRIGATION DISTRICT, et al.: 7 DANIEL F. GALLERY, ESQ. 926 J Street, Suite 505 8 Sacramento, California 95814 9 BOSTON RANCH COMPANY, et al.: 10 J.B. BOSWELL COMPANY 101 West Walnut Street 11 Pasadena, California 91103 BY: EDWARD G. GIERMANN 12 SAN JOAQUIN RIVER GROUP AUTHORITY, et al.: 13 GRIFFIN, MASUDA & GODWIN 14 517 East Olive Street Turlock, California 95381 15 BY: ARTHUR F. GODWIN, ESQ. 16 NORTHERN CALIFORNIA WATER ASSOCIATION: 17 RICHARD GOLB 455 Capitol Mall, Suite 335 18 Sacramento, California 95814 19 PLACER COUNTY WATER AGENCY, et al.: 20 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 400 Capitol Mall, 27th Floor 21 Sacramento, California 95814 BY: JANET GOLDSMITH, ESQ. 22 ENVIRONMENTAL DEFENSE FUND: 23 THOMAS J. GRAFF, ESQ. 24 5655 College Avenue, Suite 304 Oakland, California 94618 25 CAPITOL REPORTERS (916) 923-5447 10386 1 REPRESENTATIVES 2 CALAVERAS COUNTY WATER DISTRICT: 3 SIMON GRANVILLE 4 P.O. Box 846 San Andreas, California 95249 5 CHOWCHILLA WATER DISTRICT, et al.: 6 GREEN, GREEN & RIGBY 7 P.O. Box 1019 Madera, California 93639 8 BY: DENSLOW GREEN, ESQ. 9 CALIFORNIA FARM BUREAU FEDERATION: 10 DAVID J. GUY, ESQ. 2300 River Plaza Drive 11 Sacramento, California 95833 12 SANTA CLARA VALLEY WATER DISTRICT: 13 MORRISON & FORESTER 755 Page Mill Road 14 Palo Alto, California 94303 BY: KEVIN T. HAROFF, ESQ. 15 CITY OF SHASTA LAKE: 16 ALAN N. HARVEY 17 P.O. Box 777 Shasta Lake, California 96019 18 COUNTY OF STANISLAUS: 19 MICHAEL G. HEATON, ESQ. 20 926 J Street Sacramento, California 95814 21 GORRILL LAND COMPANY: 22 GORRILL LAND COMPANY 23 P.O. Box 427 Durham, California 95938 24 BY: DON HEFFREN 25 CAPITOL REPORTERS (916) 923-5447 10387 1 REPRESENTATIVES 2 SOUTH DELTA WATER AGENCY: 3 JOHN HERRICK, ESQ. 4 3031 West March Lane, Suite 332 East Stockton, California 95267 5 COUNTY OF GLENN: 6 NORMAN Y. HERRING 7 525 West Sycamore Street Willows, California 95988 8 REGIONAL COUNCIL OF RURAL COUNTIES: 9 MICHAEL B. JACKSON 10 1020 Twelfth Street, Suite 400 Sacramento, California 95814 11 DEER CREEK WATERSHED CONSERVANCY: 12 JULIE KELLY 13 P.O. Box 307 Vina, California 96092 14 DELTA TRIBUTARY AGENCIES COMMITTEE: 15 MODESTO IRRIGATION DISTRICT 16 P.O. Box 4060 Modesto, California 95352 17 BY: BILL KETSCHER 18 SAVE THE SAN FRANCISCO BAY ASSOCIATION: 19 SAVE THE BAY 1736 Franklin Street 20 Oakland, California 94612 BY: CYNTHIA L. KOEHLER, ESQ. 21 BATTLE CREEK WATERSHED LANDOWNERS: 22 BATTLE CREEK WATERSHED CONSERVANCY 23 P.O. Box 606 Manton, California 96059 24 25 CAPITOL REPORTERS (916) 923-5447 10388 1 REPRESENTATIVES 2 BUTTE SINK WATERFOWL ASSOCIATION, et al.: 3 MARTHA H. LENNIHAN, ESQ. 4 455 Capitol Mall, Suite 300 Sacramento, California 95814 5 CITY OF YUBA CITY: 6 WILLIAM P. LEWIS 7 1201 Civic Center Drive Yuba City, California 95993 8 BROWNS VALLEY IRRIGTAION DISTRICT, et al.: 9 BARTKIEWICZ, KRONICK & SHANAHAN 10 1011 22nd Street, Suite 100 Sacramento, California 95816 11 BY: ALAN B. LILLY, ESQ. 12 CONTRA COSTA WATER DISTRICT: 13 BOLD, POLISNER, MADDOW, NELSON & JUDSON 500 Ygnacio Valley Road, Suite 325 14 Walnut Creek, California 94596 BY: ROBERT B. MADDOW, ESQ. 15 GRASSLAND WATER DISTRICT: 16 DON MARCIOCHI 17 22759 South Mercey Springs Road Los Banos, California 93635 18 SAN LUIS CANAL COMPANY: 19 FLANAGAN, MASON, ROBBINS & GNASS 20 3351 North M Street, Suite 100 Merced, California 95344 21 BY: MIICHAEL L. MASON, ESQ. 22 STONY CREEK BUSINESS AND LAND OWNERS COALITION: 23 R.W. MCCOMAS 4150 County Road K 24 Orland, California 95963 25 CAPITOL REPORTERS (916) 923-5447 10389 1 REPRESENTATIVES 2 TRI-DAM POWER AUTHORITY: 3 TUOLUMNE UTILITIES DISTRICT 4 P.O. Box 3728 Sonora, California 95730 5 BY: TIM MCCULLOUGH 6 DELANO-EARLIMART IRRIGATION DISTRICT, et al.: 7 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 8 Oroville, California 95965 BY: JEFFREY A. MEITH, ESQ. 9 HUMANE FARMING ASSOCIATION: 10 BRADLEY S. MILLER. 11 1550 California Street, Suite 6 San Francisco, California 94109 12 CORDUA IRRIGATION DISTRICT, et al.: 13 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 14 P.O. Box 1679 Oroville, California 95965 15 BY: PAUL R. MINASIAN, ESQ. 16 EL DORADO COUNTY WATER AGENCY: 17 DE CUIR & SOMACH 400 Capitol Mall, Suite 1900 18 Sacramento, California 95814 BY: DONALD B. MOONEY, ESQ. 19 GLENN COUNTY FARM BUREAU: 20 STEVE MORA 21 501 Walker Street Orland, California 95963 22 MODESTO IRRIGATION DISTRICT: 23 JOEL MOSKOWITZ 24 P.O. Box 4060 Modesto, California 95352 25 CAPITOL REPORTERS (916) 923-5447 10390 1 REPRESENTATIVES 2 PACIFIC GAS & ELECTRIC: 3 RICHARD H. MOSS, ESQ. 4 P.O. Box 7442 San Francisco, California 94120 5 CENTRAL DELTA WATER AGENCY, et al.: 6 NOMELLINI, GRILLI & MCDANIEL 7 P.O. Box 1461 Stockton, California 95201 8 BY: DANTE JOHN NOMELLINI, ESQ. and 9 DANTE JOHN NOMELLINI, JR., ESQ. 10 TULARE LAKE BASIN WATER STORAGE UNIT: 11 MICHAEL NORDSTROM 1100 Whitney Avenue 12 Corcoran, California 93212 13 AKIN RANCH, et al.: 14 DOWNEY, BRAND, SEYMOUR & ROHWER 555 Capitol Mall, 10th Floor 15 Sacramento, California 95814 BY: KEVIN M. O'BRIEN, ESQ. 16 OAKDALE IRRIGATION DISTRICT: 17 O'LAUGHLIN & PARIS 18 870 Manzanita Court, Suite B Chico, California 95926 19 BY: TIM O'LAUGHLIN, ESQ. 20 SIERRA CLUB: 21 JENNA OLSEN 85 Second Street, 2nd Floor 22 San Francisco, California 94105 23 YOLO COUNTY BOARD OF SUPERVISORS: 24 LYNNEL POLLOCK 625 Court Street 25 Woodland, California 95695 CAPITOL REPORTERS (916) 923-5447 10391 1 REPRESENTATIVES 2 PATRICK PORGENS & ASSOCIATES: 3 PATRICK PORGENS 4 P.O. Box 60940 Sacramento, California 95860 5 BROADVIEW WATER DISTRICT, et al.: 6 DIANE RATHMANN 7 P.O. Box 156 Dos Palos, California 93620 8 FRIENDS OF THE RIVER: 9 BETSY REIFSNIDER 10 128 J Street, 2nd Floor Sacramento, California 95814 11 MERCED IRRIGATION DISTRICT: 12 FLANAGAN, MASON, ROBBINS & GNASS 13 P.O. Box 2067 Merced, California 95344 14 BY: KENNETH M. ROBBINS, ESQ. 15 CENTRAL SAN JOAQUIN WATER CONSERVATION DISTRICT: 16 REID W. ROBERTS, ESQ. 311 East Main Street, Suite 202 17 Stockton, California 95202 18 METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA: 19 JAMES F. ROBERTS P.O. Box 54153 20 Los Angeles, California 90054 21 SACRAMENTO AREA WATER FORUM: 22 CITY OF SACRAMENTO 980 9th Street, 10th Floor 23 Sacramento, California 95814 BY: JOSEPH ROBINSON, ESQ. 24 25 CAPITOL REPORTERS (916) 923-5447 10392 1 REPRESENTATIVES 2 TUOLUMNE RIVER PRESERVATION TRUST: 3 NATURAL HERITAGE INSTITUTE 4 114 Sansome Street, Suite 1200 San Francisco, California 94194 5 BY: RICHARD ROOS-COLLINS, ESQ. 6 CALIFORNIA DEPARTMENT OF WATER RESOURCES: 7 DAVID A. SANDINO, ESQ. P.O. Box 942836 8 Sacramento, California 94236 9 FRIANT WATER USERS AUTHORITY: 10 GARY W. SAWYERS, ESQ. 575 East Alluvial, Suite 101 11 Fresno, California 93720 12 KERN COUNTY WATER AGENCY: 13 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 400 Captiol Mall, 27th Floor 14 Sacramento, California 95814 BY: CLIFFORD W. SCHULZ, ESQ. 15 SAN JOAQUIN RIVER EXCHANGE CONTRACTORS: 16 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 17 P.O. Box 1679 Oroville, California 95965 18 BY: MICHAEL V. SEXTON, ESQ. 19 SAN JOAQUIN COUNTY: 20 NEUMILLER & BEARDSLEE P.O. Box 20 21 Stockton, California 95203 BY: THOMAS J. SHEPHARD, SR., ESQ. 22 CITY OF STOCKTON: 23 DE CUIR & SOMACH 24 400 Capitol Mall, Suite 1900 Sacramento, California 95814 25 BY: PAUL S. SIMMONS, ESQ. CAPITOL REPORTERS (916) 923-5447 10393 1 REPRESENTATIVES 2 ORLAND UNIT WATER USERS' ASSOCIATION: 3 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 4 P.O. Box 1679 Oroville, California 95965 5 BY: M. ANTHONY SOARES, ESQ. 6 GLENN-COLUSA IRRIGATION DISTRICT: 7 DE CUIR & SOMACH 400 Capitol Mall, Suite 1900 8 Sacramento, California 95814 BY: STUART L. SOMACH, ESQ. 9 NORTH SAN JOAQUIN WATER CONSERVATION DISTRICT: 10 JAMES F. SORENSEN CONSULTING CIVIL ENGINEER, INC.: 11 209 South Locust Street Visalia, California 93279 12 BY: JAMES F. SORENSEN 13 PARADISE IRRIGATION DISTRICT: 14 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 15 Oroville, California 95965 BY: WILLIAM H. SPRUANCE, ESQ. 16 COUNTY OF COLUSA: 17 DONALD F. STANTON, ESQ. 18 1213 Market Street Colusa, California 95932 19 COUNTY OF TRINITY: 20 COUNTY OF TRINITY - NATURAL RESOURCES 21 P.O. Box 156 Hayfork, California 96041 22 BY: TOM STOKELY 23 CITY OF REDDING: 24 JEFFERY J. SWANSON, ESQ. 2515 Park Marina Drive, Suite 102 25 Redding, California 96001 CAPITOL REPORTERS (916) 923-5447 10394 1 REPRESENTATIVES 2 TULARE IRRIGATION DISTRICT: 3 TEHEMA COUNTY RESOURCE CONSERVATION DISTRICT 4 2 Sutter Street, Suite D Red Bluff, California 96080 5 BY: ERNEST E. WHITE 6 STATE WATER CONTRACTORS: 7 BEST BEST & KREIGER P.O. Box 1028 8 Riverside, California 92502 BY: CHARLES H. WILLARD 9 COUTNY OF TEHEMA, et al.: 10 COUNTY OF TEHEMA BOARD OF SUPERVISORS 11 P.O. Box 250 Red Bluff, California 96080 12 BY: CHARLES H. WILLARD 13 MOUNTAIN COUNTIES WATER RESOURCES ASSOCIATION: 14 CHRISTOPHER D. WILLIAMS P.O. Box 667 15 San Andreas, California 95249 16 JACKSON VALLEY IRRIGATION DISTRICT: 17 HENRY WILLY 6755 Lake Amador Drive 18 Ione, California 95640 19 SOLANO COUNTY WATER AGENCY, et al.: 20 HERUM, CRABTREE, DYER, ZOLEZZI & TERPSTRA 2291 West March Lane, S.B. 100 21 Stockton, California 95207 BY: JEANNE M. ZOLEZZI, ESQ. 22 23 ---oOo--- 24 25 CAPITOL REPORTERS (916) 923-5447 10395 1 I N D E X 2 ---oOo--- 3 4 PAGE 5 OPENING OF HEARING 10397 6 AFTERNOON SESSION 10503 7 END OF PROCEEDINGS 10626 8 REBUTTAL TESTIMONY OF THE DEPARTMENT OF THE INTERIOR: 9 PANEL: 10 MIKE THABAULT 10400 11 PEGGY MANZA 10600 12 CROSS-EXAMINATION OF THE DEPARTMENT OF THE INTERIOR: 13 JOHN HERRICK 10409 THOMAS BIRMINGHAM 10436 14 MICHAEL JACKSON 10471 TIM O'LAUGHLIN 10490 15 DANTE JOHN NOMELLINI 10515 ARTHUR GODWIN 10588 16 BY BOARD MEMBERS 10595 17 CROSS-EXAMINATION OF THE DEPARTMENT OF THE INTERIOR: (PEGGY MANZA): 18 JOHN HERRICK 10600 19 BY STAFF 10619 BY BOARD MEMBERS 10620 20 21 ---oOo--- 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 10396 1 TUESDAY, FEBRUARY 23, 1999, 9:00 A.M. 2 SACRAMENTO, CALIFORNIA 3 ---oOo--- 4 C.O. STUBCHAER: Good morning. We'll resume the 5 Bay-Delta Water Rights Hearing. I see Mr. O'Laughlin at 6 the podium. 7 Good morning. 8 MR. O'LAUGHLIN: If I may, Chairman Brown, I'd like 9 to address a scheduling issue -- Stubchaer. It's been a 10 long time since I've been here. Sorry about that. 11 On behalf of the San Joaquin River Group Authority 12 my understanding is that the Department of the Interior has 13 several witnesses to put on. My expectation is that San 14 Joaquin River Group will start its rebuttal case maybe 15 Wednesday afternoon, but certainly by Thursday. We expect 16 ours to be done on March 9th, the first hearing date in 17 March. 18 We have substantially reduced our rebuttal witness 19 list. I know some parties in here have heard that we had a 20 larger list, we've reduced that dramatically. So we would 21 expect to be done on March 9th. My understanding is that 22 the San Joaquin River Exchange Contractors do not have a 23 rebuttal case. So I would expect that on or about March 24 9th we will be done with the rebuttal cases for II-A. 25 C.O. STUBCHAER: Okay. Thank you. CAPITOL REPORTERS (916) 923-5447 10397 1 MR. SEXTON: Mr. Stubchaer, his statement on behalf 2 of the Exchange Contractors that is correct. We have 3 reserved a place and we have determined not to put on any 4 rebuttal witnesses. 5 C.O. STUBCHAER: Okay. Thank you, Mr. Sexton. 6 MR. HERRICK: Mr. Chairman? 7 C.O. STUBCHAER: Yes, Mr. Herrick. 8 MR. HERRICK: I'm not sure all the time, but some of 9 the time during these hearings when we finished a phase and 10 we didn't go into another phase without waiting until the 11 next hearing date. I just wonder if that's the plan now -- 12 Phase VI? 13 C.O. STUBCHAER: The order of appearances for Phase 14 VI was posted on the web as you know, but we have not yet 15 picked a date because we didn't know how the rebuttal was 16 going to go. And it makes sense to me to not start another 17 phase late in a day. But whether we do it on a subsequent 18 day or not, we have not yet decided. 19 MR. HERRICK: Thank you. 20 C.O. STUBCHAER: Staff have any comment? 21 MS. LEIDIGH: No. 22 C.O. STUBCHAER: Okay. Mr. Brandt, you have a 23 witness that you're going to put on this morning and then 24 bring back Ms. Manza for completion of cross this 25 afternoon? CAPITOL REPORTERS (916) 923-5447 10398 1 MR. BRANDT: Yes. Ms. Manza will return at 1:00 p.m. 2 this afternoon. 3 C.O. STUBCHAER: All right. Mr. Brandt, before we 4 get started, I do want to announce that we have scheduled 5 some additional days at the end of March and the first week 6 of April. And those days will be: Tuesday, March 30th; 7 Wednesday, March 31st; and Tuesday, Wednesday and Thursday 8 April 6th, 7th and 8th. 9 MR. BRANDT: Thank you. I appreciate the information 10 from the San Joaquin River Group. We'll need to start 11 planning our witnesses, because I think there's a variety 12 of issues on the witness timing. And we were planning for 13 Phase VI, just for your information, at this point we are 14 planning to have a rather large panel on behalf of DWR, DFG 15 and the Department of Interior. So we'll need to 16 coordinate and see how that works. Anyway, just for your 17 information and we'll -- 18 C.O. STUBCHAER: Try and work it out. 19 MR. BRANDT: -- get back to you just as soon as we 20 can if we have any scheduling problems. 21 C.O. STUBCHAER: Okay. 22 MR. BRANDT: Mr. Chairman, good morning. Alf Brandt 23 on behalf of the Department of the Interior. I have here 24 today Mike Thabault from the United States Fish and 25 Wildlife Service. He is going to be answering questions. CAPITOL REPORTERS (916) 923-5447 10399 1 We have not had time to prepare written testimony for this 2 witness, because we've just not had time in the last couple 3 of weeks. 4 And he will be rebutting -- the testimony that he 5 will be rebutting is Mr. Hildebrand's testimony as to the 6 biological effects of recirculation. His testimony will 7 focus just on recirculation and issues that arise out of 8 that. 9 C.O. STUBCHAER: Has Mr. Thabault taken the oath? I 10 don't remember. 11 MR. BRANDT: Yes, he has. He has taken the oath in 12 Phase III. 13 C.O. STUBCHAER: All right. Thank you. 14 Good morning, Mr. Thabault. 15 ---oOo--- 16 DIRECT TESTIMONY OF THE DEPARTMENT OF THE INTERIOR 17 OF MIKE THABAULT 18 BY ALF BRANDT 19 MR. BRANDT: Mr. Thabault, have you reviewed Alex 20 Hildebrand's written testimony regarding his proposal for 21 using recirculation of water to provide the required pulse 22 flows during April and May? I believe it's identified as 23 South Delta Water Agency Exhibit 51. 24 MR. THABAULT: Yes, I have. 25 MR. BRANDT: Do you understand that that CAPITOL REPORTERS (916) 923-5447 10400 1 recirculation proposal, in concept, proposes that water be 2 taken through the Delta pumping facilities and the Newman 3 Wasteway, the San Joaquin River to ultimately meet the flow 4 objectives at Vernalis; is that your understanding? 5 MR. THABAULT: Yes, conceptually I understand the 6 proposal. However, I've never seen any particular 7 specifics as to how it would be done. 8 MR. BRANDT: From a biological perspective, does it 9 make a difference whether the pulse flows come from 10 recirculation or from the San Joaquin tributaries? 11 MR. THABAULT: I believe it does make a difference 12 where the origin of the water comes from on a couple of 13 different fronts. First of all, the intent of the pulse 14 flow is to originate from the tributary streams for 15 purposes of juvenile salmon, they imprint on those waters. 16 Those waters -- those flows would assist in their 17 emigration out of those tributaries and down, subsequently, 18 to the Delta. 19 The recirculation water does not provide those 20 same chemical constituents, the subtleties of the water 21 that would assist in that queue. As the Service and 22 Interior testified earlier, in earlier phases, we also 23 believe it's important that once that water reaches the 24 Delta that it's important to have a mix of waters from 25 various tributaries that contribute to the Delta for Delta CAPITOL REPORTERS (916) 923-5447 10401 1 native fishes in terms how the estuary functions and the 2 behavioral queues and the constituents of those fish in the 3 water. 4 MR. BRANDT: Are you aware of Mr. Hildebrand's 5 suggestion that any additional flows that would be required 6 for the pulse flow, that would be required by the 7 Department of the Interior, should come from outside the 8 San Joaquin River basin? 9 MR. THABAULT: I am aware that he has proposed that. 10 I am, yet, unclear as to how that transfer from out of 11 basin, or the Exchange Contractors would actually operate, 12 how it would make it to the San Joaquin River and what its 13 origins would be. 14 MR. BRANDT: How would importing water from other 15 basins affect the Delta fish? 16 MR. THABAULT: Well, I believe for the purposes of 17 salmon that if you import water from out of basin that that 18 effects the juvenile behavioral queues, the imprinting that 19 may occur for those salmon. 20 We do have evidence in some tributaries within the 21 Central Valley of adult straying or decrease survival of 22 certain hatchery fish that originate from different basins 23 and have been planted in the San Joaquin River. So I 24 believe it does have an effect. To the extent of that 25 effect, I don't think we're entirely clear on it. CAPITOL REPORTERS (916) 923-5447 10402 1 MR. BRANDT: Okay. Now, can you tell me how would 2 Mr. Hildebrand's proposal for recirculation affect fish at 3 the Central Valley Project or the State Water Project at 4 the pumps in the -- 5 MR. THABAULT: Well, it might -- 6 MR. HILDEBRAND: Could you put the mic a little 7 closer so we can hear you? Sorry. 8 C.O. STUBCHAER: Yes. If you can't hear, anyone who 9 can't hear, please, get my attention. I wasn't looking 10 right then, but we'll try to make sure the volume is set 11 appropriately. 12 C.O. BROWN: Which one can't you hear? 13 C.O. STUBCHAER: Yeah. Can you hear Mr. Brandt? 14 MR. HILDEBRAND: You don't need to repeat it. I just 15 wanted to not strain my ear quite so much. 16 MR. BRANDT: Is it Mr. Thabault or is it me? 17 MR. HILDEBRAND: Both. 18 MR. NOMELLINI: Maybe the volume needs to be turned 19 up a little bit. 20 MS. WHITNEY: It hums if you turn it up too much. 21 C.O. STUBCHAER: Mr. Thabault, perhaps, if you can 22 put the microphone to your left so that when you look at 23 the questioner the microphone -- 24 MR. THABAULT: I'll try my best. 25 C.O. STUBCHAER: It might be helpful CAPITOL REPORTERS (916) 923-5447 10403 1 MR. BRANDT: Let's try this, again. I'll ask the 2 question again. How would Mr. Hildebrand's proposal for 3 recirculation affect fish at the Central Valley Project 4 and/or State Water Project pumps in the southern part of 5 the Delta? 6 MR. THABAULT: Well, as I understand the proposal it 7 has a potential to maybe increase the entrainment issues 8 associated with exporting that water from the standpoint 9 that it's released from the San Joaquin River and could be 10 pumped a number of times, maybe twice, depending on how you 11 operate it. 12 So when you release water from the tributaries 13 entrainment is there, depending on the location of the 14 fish, their abundance. However, as we continue to pump the 15 same water twice you end up pumping fish water twice. So 16 that's -- I think the issue there is it may increase 17 entrainment issues, is may not depending on a particular 18 situation, abundance of fish and their distribution. 19 MR. BRANDT: Are there ways other than entrainment 20 that the proposed increased pumping would affect Delta 21 fish? 22 MR. THABAULT: Well, there are the hydrologic issues 23 associated with pumping in general, the indirect effects of 24 exports, how they affect the in Delta hydrodynamics, again, 25 associated with the location of fish, what their relative CAPITOL REPORTERS (916) 923-5447 10404 1 abundance is in relationship to the export facilities, what 2 the relative inflows are, et cetera. So there is a 3 potential for additional effects. 4 MR. BRANDT: So really it would depend on where the 5 fish are and a number of other factors? 6 MR. THABAULT: Precisely. 7 MR. BRANDT: Can you tell me from a biological 8 perspective what issues are related to -- I think 9 Mr. Hildebrand used the term "available capacity" at the 10 Central Valley -- CVP and the SWP pumps during the spring 11 pulse flow period? 12 MR. THABAULT: Well, again, it would probably depend 13 on how you define "capacity." Under the Biological Opinion 14 there's a relatively complex calculation depending on 15 inflows, what the exports are. 16 So there's a regulatory capacity which may or may 17 not be there, depending on the inflows. Physical capacity 18 is another thing. There may or may not be physical 19 capacity, again, depending on what the inflows -- most of 20 the inflows, unless they're well above 7 or 8,000 cfs 21 because of how the projects export, I would expect there is 22 probably physical capacity. 23 MR. BRANDT: Okay. But just from a biological 24 perspective, is there a issue related to what you call 25 "regulatory capacity"? CAPITOL REPORTERS (916) 923-5447 10405 1 MR. THABAULT: Yeah, what I would classify as 2 regulatory capacity, for lack of a better term. 3 MR. BRANDT: Can you tell me, are there biological 4 problems particular to the spring pulse flow that arise due 5 to the increased pumping other than what you've specified? 6 MR. THABAULT: Not relative to entrainment or flows 7 that I'm aware of. 8 MR. BRANDT: Okay. Are there any particular fish 9 that would be particularly affected by the increased 10 pumping during the spring pulse flow period? 11 MR. THABAULT: Well, I think that most of the fish 12 that the Service would be concerned about, or Interior 13 would be concerned about is the salmon species, the 14 steelhead species, certainly Delta smelt, Sacramento 15 splittail, long-fin, theseare all species that we would be 16 concerned with depending on where their location is and 17 what the condition is at the given time. 18 MR. BRANDT: Would recirculating the water through 19 the Newman Wasteway have any impact on fish related to 20 contaminants? 21 MR. THABAULT: There is a concern related to 22 contaminates associated with the Newman Wasteway. My 23 understanding is several years ago, 1994, I believe, there 24 was a study to evaluate the transfer to the China Island 25 unit of Fish and Game. CAPITOL REPORTERS (916) 923-5447 10406 1 And at that time there was detections of certain 2 pesticides, chlorides, et cetera, associated with that. 3 And so we would be concerned about contaminant issues, what 4 the source of the water is, where it was coming from, from 5 which particular drainage units, et cetera, in terms of 6 passing through the Newman Wasteway. 7 MR. BRANDT: Have you ever had a conversation with 8 Mr. Hildebrand regarding his recirculation concept? 9 MR. THABAULT: Yes, I have. 10 MR. BRANDT: Did you explain to him the problems that 11 you just explained to us here? 12 MR. THABAULT: Yes, we have. 13 MR. BRANDT: Did you object in any way or oppose the 14 recirculation project to proceed? 15 MR. THABAULT: Well, in one substantive meeting that 16 we had, we didn't oppose the project outright. We did 17 explain our concerns. At the time it was put into the 18 context of an experiment. We weren't particularly 19 interested in experimenting at that time with this 20 particular proposal. 21 We did think that it needed substantially more 22 evaluation and that if he wanted to go back and provide 23 more substantive material to show us what that evaluation 24 might mean, we pretty much left it at that. 25 But we did express very strong concerns about the CAPITOL REPORTERS (916) 923-5447 10407 1 recirculation proposal at the time, what it might have on 2 contaminants, what affect it might have on entrainment, et 3 cetera. So those are all issues that we did bring up. And 4 we, at the time, were not supportive of the proposal, but 5 we did leave it open to evaluation. 6 MR. BRANDT: Why didn't you just oppose the 7 recirculation outright? 8 MR. THABAULT: Well, it's a fairly rare occasion that 9 Fish and Wildlife Service actually opposes a project 10 outright. We never know what a particular proposal may 11 mean until the evaluation is done and modeling has been 12 done. 13 We look at the contaminants issues. So we do 14 leave the ability for project proponents to provide us with 15 the information. At the time we had the meeting with Alex 16 there was no substantive information on the table in terms 17 of how the project might be implemented. And so although 18 we raised some substantive concerns, we weren't really in a 19 position to say absolutely not at the time. 20 MR. BRANDT: Okay. Thank you. 21 Mr. Thabault is available for cross-examination. 22 C.O. STUBCHAER: Thank you, Mr. Brandt. Who wishes 23 to cross-examine Mr. Thabault? Mr. O'Laughlin, 24 Mr. Godwin, Mr. Birmingham. 25 C.O. BROWN: Nomellini, Herrick. CAPITOL REPORTERS (916) 923-5447 10408 1 C.O. STUBCHAER: Mr. Nomellini, Mr. Herrick, 2 Mr. Jackson. Anyone else who thinks they may want to 3 cross-examine? 4 C.O. BROWN: Did you get Mr. Birmingham? 5 C.O. STUBCHAER: Yes. 6 Ms. Forster, would you do the honor of shuffling 7 the cards. Okay. Here we go, the order will be 8 Mr. Herrick -- 9 MR. HERRICK: This seems rigged. 10 C.O. STUBCHAER: -- Mr. Birmingham, Mr. Jackson, 11 Mr. O'Laughlin, Mr. Nomellini and Mr. Godwin. 12 Good morning, Mr. Herrick. 13 ---oOo--- 14 CROSS-EXAMINATION OF THE DEPARTMENT OF THE INTERIOR 15 BY THE SOUTH DELTA WATER AGENCY 16 BY JOHN HERRICK 17 MR. HERRICK: Good morning, Mr. Chairman, Board 18 Members. John Herrick for the South Delta Water Agency. 19 Mr. Thabault -- excuse me, that's the way you 20 pronounce it, correct? 21 MR. THABAULT: Yes. 22 MR. HERRICK: I've read it too many times to mess it 23 up. You expressed your concerns about how the 24 recirculation proposal has now -- or needs more evaluation; 25 is that correct? CAPITOL REPORTERS (916) 923-5447 10409 1 MR. THABAULT: That's correct. 2 MR. HERRICK: Did you or your organization make any 3 comments to the DEIR regarding their evaluation regarding 4 the recirculation proposal? 5 MR. BIRMINGHAM: Objection. Assumes facts not in 6 evidence. 7 C.O. STUBCHAER: You want to lay a foundation? 8 MR. BIRMINGHAM: May I explain, Mr. Stubchaer? 9 C.O. STUBCHAER: Yes, you may. 10 MR. BIRMINGHAM: I believe Board Member Brown very 11 accurately pointed out last week during the cross-examine 12 of Mr. Boardman, that the recirculation proposal that is 13 set forth in South Delta Water Agency Exhibit 51 is not the 14 proposal that's set forth in the Draft EIR. They're two 15 separate proposals. 16 And so, actually, I think the basis of my 17 objection was not well founded. The question really is 18 ambiguous. Mr. Herrick needs to ask whether we're talking 19 about the recirculation proposal that's advanced by Mr. -- 20 by South Delta Water Agency or the proposal that's set 21 forth in the Draft EIR. 22 C.O. STUBCHAER: Mr. Herrick. 23 MR. HERRICK: Certainly, I can clarify that. I agree 24 with that point. 25 Mr. Thabault, were you present for the testimony CAPITOL REPORTERS (916) 923-5447 10410 1 and cross-examination of the San Luis Unit's witness, 2 Mr. Tom Boardman last week? 3 MR. THABAULT: No. 4 MR. HERRICK: Are you aware of any differences 5 between the recirculation proposal presented by Mr. Alex 6 Hildebrand in South Delta 51, any differences between that 7 and the recirculation proposal in the Draft EIR for these 8 proceedings? 9 MR. BRANDT: Objection. Assumes facts not in 10 evidence. It assumes that he's reviewed Alternative 6. 11 MR. HERRICK: All right. It's all right. 12 Mr. Thabault, are you aware that there's a DEIR 13 evaluating various alternatives to implement the 1995 Water 14 Quality Control Plan? 15 MR. THABAULT: Yes. 16 MR. HERRICK: Are you aware that one of those 17 alternatives, Alternative 6, involves some sort of 18 recirculation proposal? 19 MR. THABAULT: Yes. 20 MR. HERRICK: And you've testified that you reviewed 21 South Delta 51, the testimony of Alex Hildebrand for Phase 22 II-A? 23 MR. THABAULT: The written testimony, yes, not the 24 exhibits. 25 MR. HERRICK: Have you reviewed Alternative 6 CAPITOL REPORTERS (916) 923-5447 10411 1 contained in the DEIR? 2 MR. THABAULT: It's been a while, but, yes. 3 MR. HERRICK: All right. Are you aware of any 4 differences between the proposal in the DEIR and 5 Mr. Hildebrand's proposal in the South Delta 51? 6 MR. THABAULT: Conceptually, I'm not aware of any 7 differences. However, again, there were certain lacks of 8 specifics in both the DEIR and in the written testimony. 9 So in terms of specifics I couldn't say, but conceptually I 10 don't think there is a difference. 11 MR. HERRICK: Mr. Thabault, on behalf of the U.S. 12 Fish and Wildlife Service have you made any comments to the 13 Draft Environmental Impact Report regarding Alternative 6? 14 MR. THABAULT: I recall we wrote a comment letter on 15 the DEIR. I do not recall if we made specific comments in 16 that comment letter on Alternative 6 or not. 17 MR. HERRICK: Do you understand that by including 18 Alternative 6 in the DEIR the State Board may be 19 considering that as one of the methods of implementing the 20 1995 Water Quality Control Plan? 21 MR. THABAULT: More or less. 22 MR. HERRICK: And did your organization have any 23 concerns that the evaluation in the DEIR may not address 24 some of the concerns you've raised today? 25 MR. THABAULT: That may very well be the case. CAPITOL REPORTERS (916) 923-5447 10412 1 MR. HERRICK: Okay. Do you know if anybody else from 2 Fish and Wildlife Service has made comments regarding the 3 DEIR regarding the issues you made today? 4 MR. THABAULT: No. The Service wrote me a letter. 5 MR. HERRICK: Okay. And the to the best of your 6 recollection, it didn't include these issues? 7 MR. THABAULT: I said I do not recall whether it 8 contained any issues or not. 9 MR. HERRICK: Okay. Now, Mr. Thabault, are you 10 familiar with the San Joaquin River Agreement which is -- 11 are you familiar with the San Joaquin River Agreement? 12 MR. BRANDT: I think this is going beyond the scope. 13 If we're going to go down the San Joaquin River Agreement, 14 we're talking -- he is here on rebuttal regarding 15 recirculation, he's not talking about the San Joaquin River 16 Agreement. 17 C.O. STUBCHAER: The question was: Is he aware of 18 the San Joaquin River Agreement? I think I would allow 19 that to be answered. 20 MR. BRANDT: Fine. I just wanted that to be clear. 21 Thank you. 22 MR. THABAULT: Yes, I'm aware of the San Joaquin 23 River Agreement. 24 MR. HERRICK: Are you aware that one of the proposed 25 sources for pulse flow water will be from the Exchange CAPITOL REPORTERS (916) 923-5447 10413 1 Contractors? 2 MR. THABAULT: I do not recall the specific source of 3 water from the Exchange Contractors in the agreement. 4 MR. HERRICK: If the Exchange Contractors were to 5 supply pulse flows in some years, would you have your same 6 concerns regarding imprinting? 7 MR. THABAULT: Potentially, yes. 8 MR. HERRICK: Has the Fish and Wildlife Service made 9 any comments to the Draft EIR/EIS that the Bureau produced 10 regarding the San Joaquin River Agreement? 11 MR. THABAULT: I believe we prepared a response, but 12 I had no part in developing that response. So I'm not 13 aware of what's in it. 14 MR. HERRICK: Okay. Mr. Thabault, are you familiar 15 generally with the Central Valley Project's operations 16 south of the Delta? 17 MR. THABAULT: Could you be more specific? 18 MR. HERRICK: Well, just to lay a little foundation: 19 Are you aware that the CVP exports water from the Delta 20 through their Tracy pumping plant? 21 MR. THABAULT: Yes. 22 MR. HERRICK: And again we're generally speaking, it 23 goes down the DMC and either is delivered directly from 24 that, or other canals or is first put in San Luis; is that 25 correct? CAPITOL REPORTERS (916) 923-5447 10414 1 MR. THABAULT: That's correct. 2 MR. HERRICK: And a portion of that water is 3 delivered to what's referred to as the west side of the 4 valley; is that correct; would you agree with that? 5 MR. THABAULT: Yes. 6 MR. HERRICK: And some of those lands that are 7 irrigated with DMC water drain back into the San Joaquin 8 River; would you agree with that? 9 MR. THABAULT: I would agree with that. 10 MR. HERRICK: Do you have any concerns on behalf of 11 Fish and Wildlife Service that that drainage water may also 12 be affecting the imprinting of fish species in the San 13 Joaquin River? 14 MR. THABAULT: That may be a concern. I think we're 15 probably more concerned with the constituent elements that 16 are in the water from that drainage, that has been probably 17 the primary issue the Service has been concerned with. 18 MR. HERRICK: But that water that gets delivered to 19 the valley has the same source as any water in the 20 recirculation idea, wouldn't it? 21 MR. THABAULT: Yes. We've had strains of salmon in 22 Mud and Salt Slough in the past based on attraction flows. 23 MR. HERRICK: And are you aware that the Bureau 24 through -- well, let me back up. 25 Are you aware that at least since the adoption of CAPITOL REPORTERS (916) 923-5447 10415 1 the CVPIA additional waters are being delivered from the 2 DMC to the wetlands in the San Joaquin Valley? 3 MR. THABAULT: I'm not particularly aware of any 4 specific amounts of water whether there's been an increase 5 to wetlands deliveries or not. 6 MR. HERRICK: Since the adoption of the CVPIA? 7 MR. THABAULT: I'm aware of the refuge Category 2 8 supplies, but I don't know the amounts. I'm not familiar 9 with any of the refuge operations or water deliveries to 10 the refuges. 11 MR. HERRICK: Okay. But is it your understanding 12 that deliveries to the wetlands or the refuges has 13 increased since CVPIA's adoption? 14 MR. THABAULT: I have no direct knowledge of whether 15 those waters have been increased or not. 16 MR. HERRICK: Are you aware of whether or not the 17 Bureau is purchasing 50,000 acre-feet of water this year 18 for delivery to wetlands? 19 MR. THABAULT: I'm aware that Reclamation has 20 embarked on a water purchase program for a lot of things, 21 but I'm not aware of any specific amounts or from any 22 particular location. 23 MR. HERRICK: If the Bureau were purchasing water for 24 delivery to wetlands and that water source were the DMC, 25 would that raise concerns similar to the ones you raised CAPITOL REPORTERS (916) 923-5447 10416 1 here about imprinting the fish? 2 MR. THABAULT: Potentially could, yes. 3 MR. HERRICK: Mr. Thabault, is your concern regarding 4 imprinting, does that have to do with the fact that the 5 source of the water is the Delta, or that it's just a 6 different mix coming down the San Joaquin River than would 7 exist without the recirculation? 8 MR. THABAULT: Well, the Delta, once you export the 9 water, contains sources from many locations outside of the 10 San Joaquin basin. So I think the answer to your 11 question -- both questions is a qualified yes. 12 Yes, that it's coming from the Delta, because it 13 contains water that those fish wouldn't ordinarily be 14 exposed to at that particular point in time. And, two, 15 yes, there is somewhat of a different mix of the 16 constituents that may bear on the tributary sources to the 17 fish. 18 MR. HERRICK: Under the proposed San Joaquin River 19 Agreement we see that depending on the year type, different 20 amounts are supplied from different tributaries. Does that 21 have the same potential effect on imprinting that you're 22 concerned with here? 23 MR. THABAULT: I'm not quite sure we -- since the 24 sources of the water from the tributary associations 25 actually comes from the tributaries, that I have enough to CAPITOL REPORTERS (916) 923-5447 10417 1 answer that, per se. I mean -- 2 MR. HERRICK: Do you know whether the imprinting for 3 the smolts occurs while they're in the tributary, or are 4 they imprinted on their entire path down through the Delta? 5 MR. THABAULT: I believe that their imprinting 6 certainly begins, and a large component of that, begins in 7 the tributary, certainly, the entire system. 8 And as they move down the system and these 9 tributaries contribute to their migration paths that whole 10 constituent element until they reach the salinity zone and 11 go out to the ocean contributes to their ability to return 12 to the same location. 13 MR. HERRICK: Mr. Thabault, would you agree that the 14 state and federal export pumps result in -- I'll say -- 15 large amounts of Sacramento River water being pulled across 16 the Delta towards the pumps? 17 MR. THABAULT: In sometimes, yes. 18 MR. HERRICK: And do you have any feel for how much 19 tidal action occurs in the Delta? I mean, isn't it about a 20 couple 100,000 acre-feet of water, solutions in and out 21 everyday on the tidal cycle? 22 MR. THABAULT: It's my understanding. 23 MR. HERRICK: Do those sort of mixings of Sacramento 24 River water and tidal action, do those affect the 25 imprinting of fish that might be travelling down the San CAPITOL REPORTERS (916) 923-5447 10418 1 Joaquin River through the Delta out to the bay? 2 MR. THABAULT: Certainly, the farther the fish gets 3 down into the Delta the more and more influences are on 4 those fishes chemically. And, certainly, by that time the 5 imprinting -- the change in imprinting may change. 6 The tide certainly affects that. The amount of 7 salinity that comes into the Delta, the amount of the 8 development of fry stage and smolt stage will certainly 9 change as they move through the Delta. 10 MR. HERRICK: Have you done any analysis that 11 compares the potential impact that recirculation may have 12 on imprinting as compared to the other factors we've listed 13 on imprinting? 14 MR. THABAULT: I have not done a specific analysis, 15 no. 16 MR. HERRICK: Okay. Has anybody done that sort of 17 analysis to your knowledge? 18 MR. THABAULT: Not to my knowledge. 19 MR. HERRICK: Does the Fish and Wildlife Service 20 anticipate doing such an analysis? 21 MR. THABAULT: The Service specifically, I'm not 22 aware of any plans to do that. 23 MR. HERRICK: Were you present in these hearings 24 earlier, and I don't recall what phase it was, but I 25 believe some of the water from South San Joaquin Irrigation CAPITOL REPORTERS (916) 923-5447 10419 1 District-- or maybe it's Oakdale, I don't mean to misstate 2 this, actually goes down and ends up coming out the 3 Tuolumne River, did you hear that testimony? 4 MR. THABAULT: No, I did not. 5 MR. HERRICK: If that were occurring at some times, 6 would you expect that to affect the imprinting of 7 outmigrating smolts? By "that," I mean mixing the 8 tributary water. 9 MR. THABAULT: Yes, I would. 10 MR. HERRICK: Has Fish and Wildlife Service made any 11 comment to any environmental review process regarding this 12 imprinting issue in the last few years? 13 MR. THABAULT: I believe we have made some comments, 14 but I'm not specifically away of them. I didn't 15 participate in their development. 16 MR. HERRICK: Again, I'm just trying to jog your 17 memory here. You can't recall any specific comments 18 regarding that topic? 19 MR. THABAULT: Not to my knowledge. 20 MR. HERRICK: And I believe you stated that you or 21 the Service hasn't done any comparison of how imprinting 22 under South Delta 51 may be affected in relation to how 23 imprinting under the San Joaquin River plan may be 24 affecting fish? 25 MR. THABAULT: We just raised it as a concern. CAPITOL REPORTERS (916) 923-5447 10420 1 MR. HERRICK: Mr. Thabault, each year that a -- well, 2 assuming that each year is sort of different than the 3 previous one, each water year is different than the 4 previous one, don't we have different proportionate flows 5 from the tributaries coming down the San Joaquin River 6 during the pulse flow? 7 MR. THABAULT: Certainly, it's a highly variable 8 system. You would never expect the same thing to happen 9 twice. 10 MR. HERRICK: And do you know the amount of water 11 that may get into the San Joaquin River from contractors 12 who receive water from the DMC each year? 13 MR. THABAULT: You mean through return flows? 14 MR. HERRICK: Yes. 15 MR. THABAULT: I'm unaware of any specific amounts, 16 no. 17 MR. HERRICK: So you don't have any grasp of 18 quantity -- 19 MR. THABAULT: I'm aware of that. 20 MR. HERRICK: So you can't give us an estimate of 21 that quantity that would be coming as return flow to the 22 river each year from those contractors? 23 MR. THABAULT: No. 24 MR. HERRICK: And, similarly, can you give us an idea 25 of the quantity coming from wetlands that receive CAPITOL REPORTERS (916) 923-5447 10421 1 deliveries from the DMC each year? 2 MR. THABAULT: I have no knowledge of specific 3 quantities. 4 MR. HERRICK: Okay. Mr. Thabault, you said one of 5 your concerns deals with the effect -- the potential effect 6 of entrainment if the recirculation project were to 7 proceed; is that correct? 8 MR. THABAULT: Yes. 9 MR. HERRICK: And I believe you said that if you're 10 repumping the water once -- twice or more that that may 11 increase entrainment of the fish. Is that what you said, 12 generally? 13 MR. THABAULT: Generally, yes. 14 MR. HERRICK: Okay. And would it be fair to say that 15 your statement is: That may occur, you don't know whether 16 it will occur? 17 MR. THABAULT: That's correct. 18 MR. HERRICK: Okay. Now, we heard testimony in 19 various phases about dye-marker tests, smolt survivability 20 tests and coded-wire tag tests. Would you agree that once 21 the smolts reach the Delta they're not following flows 22 necessarily, they appear to be following other queues; is 23 that a fair statement? 24 MR. THABAULT: I would not totally discard flow, no. 25 MR. HERRICK: Okay. But it doesn't appear from those CAPITOL REPORTERS (916) 923-5447 10422 1 tests that they are solely travelling according to the flow 2 in the Delta; would you agree with that? 3 MR. THABAULT: I don't -- I'm having trouble 4 specifically recalling the results of the USGS dye studies 5 and their relationship to the salmons. 6 MR. HERRICK: Okay. But we do know that large 7 amounts of water flow in and out of the Delta twice each 8 day on the tidal cycle; is that correct? 9 MR. THABAULT: Certainly. 10 MR. HERRICK: And the smolts that aren't eaten by 11 predators, they don't stay in the tidal areas, they 12 eventually make their way out; is that correct? 13 MR. THABAULT: They're looking to leave, yes. 14 MR. HERRICK: So sometimes they're going downstream 15 as the tide goes out and sometimes they're going against 16 the flow if the tide is coming in; would that be correct? 17 MR. THABAULT: True. Yes. 18 MR. HERRICK: Now, if the recirculation idea as put 19 forth in South Delta 51 is instituted, do you agree that 20 that anticipates the installation of the Head of Old River 21 Barrier; is that correct? 22 MR. THABAULT: My understanding is the proposal does 23 assume the Head of Old River Barrier is in, yes. 24 MR. HERRICK: And the if the Head of Old River 25 Barrier isn't in, the other three tidal barriers may be in; CAPITOL REPORTERS (916) 923-5447 10423 1 is that correct? 2 MR. THABAULT: My understanding of the South Delta's 3 proposal is, yes, the barriers would be in. 4 MR. HERRICK: And if either of the three tidal, or 5 the Head of Old River Barrier is installed, then, the 6 outmigrating salmon smolts would be redirected towards the 7 Central Delta; is that correct? 8 MR. THABAULT: With the Head of Old River Barrier 9 that may be the case. I have not seen any data necessarily 10 to support the other three barriers do the same thing. 11 MR. HERRICK: Okay. And if the fish are being 12 redirected, flows are also being redirected towards the 13 Central Delta; is that correct? 14 MR. THABAULT: The San Joaquin River flows would stay 15 in the main stem, yes. 16 MR. HERRICK: So the draw of water from the pumps -- 17 excuse me, the draw of water to the export pumps in that 18 instance is from the Central Delta; is that correct? 19 MR. THABAULT: That's correct. 20 MR. HERRICK: And once the outmigrating smolts reach 21 the Central Delta would you expect them to be in the same 22 disbursement as if they were going across the southern 23 Delta? 24 MR. THABAULT: There's been no real good data to show 25 what their disbursement is once they hit all those channels CAPITOL REPORTERS (916) 923-5447 10424 1 as they move through the Delta. So I don't have the facts 2 to say that. 3 MR. HERRICK: But that's the intent of the Head of 4 Old River Barrier, isn't it, to redirect them away from the 5 pumps? 6 MR. THABAULT: That's the intent. 7 MR. HERRICK: Have you done an analysis of the effect 8 on smolt survivability if the smolts are redirected to the 9 Central Delta as opposed to if they're allowed to go 10 through the South Delta channels? 11 MR. THABAULT: I have not done that analysis. 12 MR. HERRICK: Part of your testimony mentioned the 13 Biological Opinion for the Delta smelt I believe. And you 14 talked about the complex calculation to determine the 15 pumping capacity. Is it fair to say it's approximately a 2 16 to 1 ratio of inflow to export? 17 MR. THABAULT: Not really. The calculation is based 18 on what the standard at Vernalis is versus what the flow at 19 Vernalis actually is. So the only time it's really 2 to 1 20 is when the exact flow at Vernalis is exactly what the 21 standard calls for. The ratio then changes depending on 22 the actual flow. 23 MR. HERRICK: Okay. And, thank you, we've had a lot 24 of testimony and everybody has generally stated it as 2 to 25 1, but is it greater than 2 to 1 if the standard -- if the CAPITOL REPORTERS (916) 923-5447 10425 1 flow is not at the standard? 2 MR. THABAULT: It can be greater than 2 to 1. 3 MR. HERRICK: And did you participate in the 4 development of the Biological Opinion for Delta smelt? 5 MR. THABAULT: Yes, I did. 6 MR. HERRICK: And by that I'm referring to, I guess, 7 the 1995 one; is that correct? 8 MR. THABAULT: Yes, I did. 9 MR. HERRICK: And did that analysis include data 10 gathered with Head of Old River Barrier installed? 11 MR. THABAULT: No. That opinion did not evaluate the 12 barrier, because the barrier had its own Section 7 13 consultation and was evaluated several times. 14 MR. HERRICK: So the export limitations placed on the 15 state and federal pumps pursuant to the Biological Opinion 16 didn't take into consideration the effects of the Head of 17 Old River Barrier being installed during the pulse flow; is 18 that correct? 19 MR. THABAULT: Not specifically. 20 MR. HERRICK: So if the Board institutes a new -- if 21 the Board institutes a method of implementing the Bay-Delta 22 Plan, would you expect there to be reconsultation of the 23 Biological Opinion? 24 MR. THABAULT: Yes. 25 MR. HERRICK: And would that reconsultation take into CAPITOL REPORTERS (916) 923-5447 10426 1 consideration that the Head of Old River Barrier would be 2 installed during that pulse flow period? 3 MR. THABAULT: If that was part of the proposal, we 4 would certainly have to consider that during the 5 reinitiation, yes. 6 MR. HERRICK: And since I think we agreed earlier 7 that the purpose of the Head of Old River Barrier is to 8 direct the salmon smolts away from the pumps, would that 9 come into play in a reevaluation of the limitations on 10 exports? 11 MR. THABAULT: Since our Section 7 doesn't deal with 12 salmon, it only dealt with smelt and Sacramento splittail, 13 it would be the responsibility of NMFS to evaluate the 14 affect of the barrier on the salmon. 15 MR. HERRICK: That's right, sorry. I believe the 16 questions by your counsel asked you whether or not -- well, 17 let me start over. 18 Would you agree that it appears that there are 19 times when recirculation can occur within the current terms 20 of the Biological Opinion for Delta smelt? 21 MR. THABAULT: There may, in fact, be times that it 22 could fit, but without doing an evaluation I couldn't tell 23 you how often or to what extent. 24 MR. HERRICK: Has the Fish and Wildlife Service done 25 such an evaluation? CAPITOL REPORTERS (916) 923-5447 10427 1 MR. THABAULT: We have not been asked to do such an 2 evaluation, no. 3 MR. HERRICK: Does Fish and Wildlife Service expect 4 to do such an evaluation? 5 MR. THABAULT: The way Section 7 works is if 6 Reclamation, through the consultation it's with, decides to 7 adopt this proposal, they can request reinitiation 8 consultation on this proposal and Reclamation would be 9 responsible for doing the evaluation, presenting us the 10 material for which we would then evaluate their evaluation 11 and make a determination as to how the proposal would 12 proceed. 13 MR. HERRICK: Has Reclamation asked you to do an 14 evaluation of the San Joaquin River Agreement? 15 MR. BRANDT: I think we're going beyond the scope 16 here. We're -- 17 C.O. STUBCHAER: I think it's relevant though to the 18 rebuttal testimony. 19 MR. HERRICK: Thank you. 20 C.O. STUBCHAER: I'll allow the question to be 21 answered. 22 MR. THABAULT: We've received a letter from 23 Reclamation asking our concurrence with the San Joaquin 24 River Agreement is -- for the period of the agreement falls 25 within the Biological Opinion. CAPITOL REPORTERS (916) 923-5447 10428 1 MR. HERRICK: And what was your answer to that? 2 MR. THABAULT: We have not officially responded to 3 that letter yet. 4 MR. HERRICK: As part of that -- as part of your 5 preparation to respond to that, are you going to review the 6 San Joaquin River Agreement to see if pulse flows are 7 provided from the Exchange Contractors? 8 MR. BRANDT: I think we're -- this is going farther 9 and farther into it. I mean we're not here to -- he is not 10 testifying about what the evaluation of the San Joaquin 11 River Agreement is or how it fits in here. He's here on 12 recirculation. 13 C.O. STUBCHAER: As you know, Mr. Brandt, your 14 rebuttal testimony came to the recirculation proposal. It 15 was not in writing, parties did not have an opportunity to 16 go over it in advance. And I think it's a fair question, 17 frankly, because it's relevant to the general topic of the 18 concerns about the recirculation proposal and what's being 19 done about it. 20 So, please, proceed. 21 MR. THABAULT: I would have to say our evaluation 22 would have to look at the proposal as presented to us and 23 make that evaluation, yes. 24 MR. HERRICK: But currently the Fish and Wildlife 25 Service has not done any relative comparison of, say, CAPITOL REPORTERS (916) 923-5447 10429 1 benefits and harm between the various proposals contained 2 in the DEIR? 3 MR. THABAULT: No. 4 MR. HERRICK: Same question: Or with the proposal 5 contained in South Delta 51? 6 MR. THABAULT: Go back to that first question, 7 because I'm not sure I answered that one. 8 MR. HERRICK: Has Fish and Wildlife Service done a 9 comparison between the relative benefits and harms that may 10 occur pursuant to the various proposed methods of 11 implementing the 1995 Water Quality Control Plan? 12 MR. THABAULT: All of the alternatives? 13 MR. HERRICK: Yes. 14 MR. THABAULT: To the extent that we responded in our 15 comment letter on the DEIR, yes. 16 MR. HERRICK: Okay. You raised concerns about the 17 use of the Newman Wasteway. Did you participate in any 18 evaluation of the Newman Wasteway's capability of handling 19 recirculation flows? 20 MR. THABAULT: I have not personally participated in 21 that evaluation, no. 22 MR. HERRICK: Okay. And I believe you said one of 23 your concerns were contaminants that may be there; is that 24 correct? 25 MR. THABAULT: Yes. CAPITOL REPORTERS (916) 923-5447 10430 1 MR. HERRICK: Did you do an investigation to see 2 whether or not the level of contaminants varies according 3 to the season in the year? 4 MR. THABAULT: I have not personally conducted such 5 an evaluation, no. 6 MR. HERRICK: Do you know if that's been done? 7 MR. THABAULT: I'm unaware of a specific, no. 8 MR. HERRICK: Do you know what's happening to the 9 contaminants that may be in the Newman Wasteway in the 10 absence of any other -- of any use of that for 11 recirculation? 12 MR. THABAULT: No. 13 MR. HERRICK: Do you know whether the Newman Wasteway 14 flows into the San Joaquin River -- excuse me. 15 Do you know whether or not -- do you know what the 16 source of the contaminants in the Newman Wasteway may be? 17 MR. THABAULT: My understanding is it's mostly 18 pesticides that are applied to crops down there. 19 MR. HERRICK: Do you understand, then, that it's the 20 Newman Wasteway contaminants that are the result of 21 drainage into the Newman Wasteway? 22 MR. THABAULT: Presumably, that would be one source, 23 yes. 24 MR. HERRICK: And do you know what happens to that 25 drainage once it enters the wasteway? CAPITOL REPORTERS (916) 923-5447 10431 1 MR. THABAULT: I'm a little vague when it comes to 2 the plumbing down there. 3 MR. HERRICK: Again, I'm just trying to jog your 4 memory, you might have run across this: Do you know 5 whether or not that flows directly into the San Joaquin 6 River, ever? 7 MR. THABAULT: Again, I'm a little fuzzy on the 8 plumbing. 9 MR. HERRICK: Okay. Do you know of any regulatory 10 action that's been taken to limit or correct any 11 contaminant issue in the Newman Wasteway? 12 MR. THABAULT: Not to my knowledge, no. 13 MR. HERRICK: Do you know whether or not the levels 14 of contaminants vary depending on local farming activities? 15 MR. THABAULT: Specifically, no. I mean I assume 16 they would, but -- 17 MR. HERRICK: If the Board will just bear with me, I 18 think I'm nearing the end here. 19 Are you aware of any relative comparison between 20 those same contaminants as they exist in the San Joaquin 21 River and as they may exist in the Newman Wasteway? 22 MR. THABAULT: I'm personally unaware of such a 23 comparison. 24 MR. HERRICK: So do you have any knowledge as to 25 whether or not the levels or concentrations of those CAPITOL REPORTERS (916) 923-5447 10432 1 contaminants are greater in one or the other? 2 MR. THABAULT: I have no specific knowledge of that. 3 MR. HERRICK: Okay. Are you aware of any information 4 that compares the level of contaminants in the Newman 5 Wasteway with those that may exist in Salt or Mud Slough? 6 MR. THABAULT: I'm unaware of a specific comparison 7 between those two locations. 8 MR. HERRICK: Would you agree that if you put 9 recirculation flows through the Newman Wasteway that might 10 provide dilution of contaminants that may exist in that 11 waterway? 12 MR. THABAULT: Delusion for Mud and Salt Sloughs? 13 MR. HERRICK: Yes. 14 MR. THABAULT: Potentially. 15 MR. HERRICK: Would you agree that use of the -- 16 would you agree that institution of the recirculation 17 proposal would decrease the salinity in the San Joaquin 18 River upstream of the San Joaquin River's confluence with 19 the Stanislaus River? 20 MR. O'LAUGHLIN: Objection. Outside the scope of the 21 rebuttal testimony. 22 C.O. STUBCHAER: That is probably -- Mr. Herrick, you 23 have a comment? 24 MR. HERRICK: I'll just say that I think it follows 25 from the line of questioning. He's talking about potential CAPITOL REPORTERS (916) 923-5447 10433 1 effects by using the recirculation program. And I want to 2 see if he's examined those same potential effects, the 3 positive potential effects that may result from that same 4 usage. 5 C.O. STUBCHAER: Mr. Godwin? 6 MR. GODWIN: I would also object. Assumes facts not 7 in evidence. Mr. Herrick is stating that the recirculation 8 proposal would reduce the salinities in the San Joaquin 9 River. He hasn't laid any foundation for that yet. 10 C.O. STUBCHAER: Mr. Herrick, I think I'll sustain 11 the objection to this one. 12 MR. GODWIN: He could pose it as a hypothetical if he 13 wants. 14 MR. HERRICK: Mr. Thabault, have you done any 15 analysis of potential benefits from a recirculation 16 proposal as compared to potential adverse effects? 17 MR. THABAULT: We have not done a specific analysis 18 of any benefits, no. 19 MR. HERRICK: Okay. Have you done any analysis of 20 which method of implementing the 1995 Water Quality Control 21 Plan may best protect the outmigrating salmon smolts that 22 occur outside of the pulse flow period? 23 MR. THABAULT: The Service provided substantial 24 evidence or testimony in Phase IV as to how we believe 25 implementation of the program should go forward -- Phase CAPITOL REPORTERS (916) 923-5447 10434 1 II, excuse me. 2 MR. HERRICK: Okay. To your knowledge did that 3 testimony deal with the smolts outmigrating outside of the 4 30-day pulse period? 5 MR. THABAULT: Dr. Kjelson provided that testimony, I 6 wasn't here present during that testimony so I'm not quite 7 sure exactly how far he went beyond the pulse flow period 8 in his testimony. 9 MR. HERRICK: Do you have concerns regarding the 10 imprinting of those smolts that migrate outside the 30-day 11 pulse period? 12 MR. THABAULT: Could potentially have concerns upon 13 imprinting whenever smolts are present in the system. 14 MR. HERRICK: Have you done any analysis regarding 15 the possible benefits to steelhead trout that may result 16 from recirculation? 17 MR. THABAULT: I'm unaware of any specific study 18 concerning steelhead in this proposal. 19 MR. HERRICK: Again, I apologize to the Board for 20 being kind of slow here. I know there's a good joke there 21 somewhere. 22 Mr. Thabault, have you analyzed the relative 23 benefits that may accrue to fish other than salmonids under 24 the recirculation program contained in South Delta 51? 25 MR. THABAULT: No. CAPITOL REPORTERS (916) 923-5447 10435 1 MR. HERRICK: Have you done that analysis for the San 2 Joaquin River Agreement? 3 MR. THABAULT: Not specifically, yet, no. 4 MR. HERRICK: That's all I have. Thank you very 5 much. 6 I appreciate the Board's -- 7 C.O. STUBCHAER: Thank you, Mr. Herrick. 8 Mr. Birmingham, good morning. 9 ---oOo--- 10 CROSS-EXAMINATION OF THE DEPARTMENT OF THE INTERIOR 11 BY WESTLANDS WATER DISTRICT AND SAN LUIS DELTA-MENDOTA 12 WATER AUTHORITY 13 BY THOMAS BIRMINGHAM 14 MR. BIRMINGHAM: Good morning. Mr. Thabault, my name 15 is Tom Birmingham. And I'm an attorney that represents 16 Westlands Water District and the San Luis and Delta-Mendota 17 Water Authority. 18 I want to make sure, Mr. Thabault, that I 19 understand the essence of your testimony. You are not 20 appearing today to voice objection to the recirculation 21 plan? 22 MR. THABAULT: That's correct. 23 MR. BIRMINGHAM: You have identified a number of 24 concerns that the Fish and Wildlife Service has with the 25 recirculation plan proposed in South Delta Water Agency CAPITOL REPORTERS (916) 923-5447 10436 1 Exhibit 51? 2 MR. THABAULT: That is correct. And I believe it 3 would be premature to implement such a plan until an 4 evaluation is done. 5 MR. BIRMINGHAM: And that's the basic point of your 6 testimony, that until an evaluation of the concerns raised 7 by Fish and Wildlife Service has been conducted, you think 8 it would be premature to make a decision concerning the 9 implementation of that proposal? 10 MR. THABAULT: That would be correct. 11 MR. BIRMINGHAM: Now, in response to a question asked 12 of you by Mr. Brandt, you testified that Fish and Wildlife 13 Service is concerned about the effects of the recirculation 14 plan upon a number of species? 15 MR. THABAULT: That would be correct, yes. 16 MR. BIRMINGHAM: I believe your testimony was that 17 the species of concern are winter-run salmon, Delta smelt, 18 and Sacramento splittail? 19 MR. THABAULT: I was not specific to a particular 20 race of salmon, I believe I just stated "salmon." 21 MR. BIRMINGHAM: Now, is it correct that the reason 22 that Fish and Wildlife Service is concerned with salmon 23 smelt and Sacramento splittail is because these are species 24 that have been listed, or are considered for listing under 25 the Endangered Species Act? CAPITOL REPORTERS (916) 923-5447 10437 1 MR. THABAULT: Certainly that's a predominant factor, 2 yes. 3 MR. BIRMINGHAM: I'd like to ask you some specific 4 questions about the Sacramento splittail. The Sacramento 5 splittail is the subject of a proposed final rule for a 6 listing; is that correct? 7 MR. THABAULT: That is not correct. 8 MR. BIRMINGHAM: Isn't it correct that on February 8, 9 1999, there was a notice published in the Federal Register 10 proposing a listing of the Sacramento splittail as a 11 threatened species? 12 MR. THABAULT: That was a final decision not a 13 proposal to list. 14 MR. BIRMINGHAM: Thank you for the correction. So on 15 February 8, 1999, the Service issued a final rule listing 16 the Sacramento splittail as a threatened species? 17 MR. THABAULT: That is correct. 18 MR. BIRMINGHAM: Now, were you involved, 19 Mr. Thabault, in the preparation of the Federal Register 20 notice that contained the Service's final rule on listing 21 of the Sacramento splittail as threatened? 22 MR. BRANDT: This is starting to get beyond the scope 23 here. 24 C.O. STUBCHAER: Yeah, Mr. Birmingham, can you point 25 out where in the rebuttal there's reference to the final CAPITOL REPORTERS (916) 923-5447 10438 1 listing of the splittail? 2 MR. BIRMINGHAM: Well, there was no reference to the 3 final rule on the listing. But Mr. Thabault did state that 4 the Sacramento splittail is a species of concern. And in 5 response to my earlier question he said that the 6 predominant factor in his statement, or the predominant 7 reason why it's a species of concern is because it is a 8 species that is proposed or has been listed under the 9 Endangered Species Act. 10 If he is testifying that Fish and Wildlife Service 11 has a concern about these species and the affects of the 12 recirculation plan on the species, I think I have a right 13 to cross-examine as to the validity of that concern. And 14 that's the purpose of my question is to examine him on 15 whether or not the concern about this particular species 16 is, in fact, legitimate. 17 C.O. STUBCHAER: Mr. Brandt. 18 MR. BRANDT: I will leave it to the Board for 19 decision. 20 C.O. STUBCHAER: I'll allow the question to be 21 answered. 22 MR. THABAULT: Could you repeat the question, 23 Mr. Birmingham? 24 MR. BIRMINGHAM: Sure. Were you involved in the 25 preparation of the Federal Register notice that contained CAPITOL REPORTERS (916) 923-5447 10439 1 the Service's final rule listing the species as threatened? 2 MR. THABAULT: Yes, I was. 3 MR. BIRMINGHAM: And, in fact, you were identified as 4 the principal author of the notice in the Federal Register 5 listing the Sacramento splittail as a threatened species? 6 MR. THABAULT: That is correct. 7 MR. BIRMINGHAM: Now, are you familiar, Mr. Thabault, 8 with the definition of a threaten species in the Endangered 9 Species Act? 10 MR. THABAULT: Yes. 11 MR. BIRMINGHAM: Isn't it correct that the Endangered 12 Species Act lists the definition, or contains the 13 definition for threatened species as any species which is 14 likely to become an endangered species within the 15 foreseeable future throughout all or a significant portion 16 of its range? 17 MR. THABAULT: Sounds correct. 18 MR. BIRMINGHAM: Now, in determining whether or not a 19 species is threatened, the act contains a number of 20 criteria; is that correct? 21 MR. THABAULT: That is correct. 22 MR. BIRMINGHAM: And the criteria as to whether or 23 not a species should be listed as threatened is the present 24 or threatened destruction, modification, or curtailment of 25 the species' habitat or range? CAPITOL REPORTERS (916) 923-5447 10440 1 MR. THABAULT: That's one factor, yes. 2 MR. BIRMINGHAM: And another factor is the overuse 3 for commercial, recreational, scientific or educational 4 purposes? 5 MR. THABAULT: That's another factor, yes. 6 MR. BIRMINGHAM: And a third factor in determining 7 whether or not to list a species as threatened is disease 8 or predation? 9 MR. THABAULT: Correct. 10 MR. BIRMINGHAM: And a fourth factor in deciding 11 whether or not to list a species as threatened is the 12 inadequacy of existing regulatory mechanisms to protect the 13 species? 14 MR. THABAULT: That is correct. 15 MR. BIRMINGHAM: And then the fifth factor in 16 deciding whether or not to list a species as threatened is 17 other natural or man-made factors affecting the species' 18 continued existence? 19 MR. THABAULT: That is correct. 20 MR. BIRMINGHAM: Now, turning specifically to the 21 Service's final rule listing the splittail as threatened, 22 you determined that the first, the fourth and the fifth 23 factors supported the listing; is that correct? 24 MR. THABAULT: The first, fourth and the fifth? 25 MR. BIRMINGHAM: Yes. Let me ask the question CAPITOL REPORTERS (916) 923-5447 10441 1 differently. You determined that the splittail's 2 population has declined by approximately 62 percent since 3 1984; is that correct? 4 MR. THABAULT: To the best of my recollection, yes. 5 MR. BIRMINGHAM: And you determined that the 6 splittail's historic range has been substantially reduced 7 in recent times? 8 MR. THABAULT: Center of its range, yes. 9 MR. BIRMINGHAM: And you determined that the current 10 regulatory mechanisms are insufficient to protect the 11 species? 12 MR. THABAULT: That is correct. 13 MR. BIRMINGHAM: And, finally, the Service concluded 14 that future operations of yet to be constructed Delta water 15 projects will further degrade water flow and quality, 16 thereby, adversely impacting splittail and its habitat? 17 MR. THABAULT: I had trouble following that whole 18 quote, Mr. Birmingham. I can only take so many words at 19 one time. 20 MR. BIRMINGHAM: Let me see if I can ask the question 21 again. In making the decision to list the species the 22 Service determined that future operations of yet to be 23 constructed Delta water projects would further degrade flow 24 in the Delta? 25 MR. THABAULT: That is correct. CAPITOL REPORTERS (916) 923-5447 10442 1 MR. BIRMINGHAM: And those yet to be constructed 2 projects would further degrade water quality in the Delta? 3 MR. THABAULT: That is correct. 4 MR. BIRMINGHAM: And you determined that the 5 degradation of water flow and water quality would adversely 6 impact splittail and the splittail's habitat? 7 MR. THABAULT: That would be correct, yes. 8 MR. BIRMINGHAM: May I have a moment? 9 C.O. STUBCHAER: Yes. 10 MR. BIRMINGHAM: Now, Mr. Thabault, I'd like to take 11 a few moments and examine the data on which the Service 12 relied in reaching the conclusions that we've just 13 outlined. 14 Now, isn't it correct, Mr. Thabault, that the 15 Endangered Species Act requires that decisions to list be 16 based upon the best scientific and commercially available 17 data? 18 MR. THABAULT: That is correct. 19 MR. BIRMINGHAM: Now, in making the decision to list 20 the Sacramento splittail, isn't it correct that the Service 21 excluded data on abundance of the species collected in 22 1995? 23 MR. THABAULT: No, we did not. 24 MR. BIRMINGHAM: I'd like to show to you, 25 Mr. Thabault, a statement contained in the Federal Register CAPITOL REPORTERS (916) 923-5447 10443 1 and specifically I'm referring to Volume 64 of the Federal 2 Register at 5965. And I've highlighted a statement 3 contained in the first full paragraph of the Federal 4 Register on page 5965, Volume 64. And I'd ask you to read 5 the highlighted statement into the record. 6 MR. THABAULT: It says, 7 (Reading): 8 "We believe the high abundance indices in 1995 9 are an artifact of a highly unusual hydrologic 10 conditions that occur. Therefore, we also 11 calculated all of the percent declines as stated 12 above without the '95 abundance indices in the 13 analysis." 14 MR. BIRMINGHAM: Thank you. Now, could you explain 15 for me, please, why you determined that the high abundance 16 indices in 1995 are an artifact of the highly unusual 17 hydrologic conditions that occurred? 18 MR. THABAULT: 1995 was an exceptionally wet year 19 which tended to co-occur at precisely the right time with 20 the splittail spawning. And it inundated spawning habitat 21 that had not been available for almost a decade. And we 22 had unusually high, or exceptionally high productivity for 23 the species in that period of time. 24 I would also like to clarify that the analysis 25 that you had me quote from was only one analysis. We also CAPITOL REPORTERS (916) 923-5447 10444 1 conducted an analysis with that index, this is with the 2 1995 index. 3 MR. BIRMINGHAM: Well, let's examine the conclusion 4 that 1995 was an artifact of a highly unusual hydrologic 5 condition. And you're familiar with the data collected in 6 the abundance of the Sacramento splittail in 1998; is that 7 correct, Mr. Thabault? 8 MR. THABAULT: I have not seen the specific abundance 9 index numbers for 1998 this year. 10 MR. BIRMINGHAM: Well, isn't it correct, that the 11 preliminary abundance data shows that the Sacramento 12 splittail were more abundant in 1998 than they were in 13 1995? 14 MR. THABAULT: That may very well be. Again, I have 15 not seen the specific abundance indexes for 1998 yet. 16 MR. BIRMINGHAM: May I have a moment? 17 C.O. STUBCHAER: Yes. 18 MR. BIRMINGHAM: Mr. Thabault, are you aware that the 19 State Water Contractors provided to the Fish and Wildlife 20 Service the abundance indices for splittail based on data 21 collected in 1998 prior to the listing? 22 MR. THABAULT: I am aware we received a letter from 23 somebody, but I'm not quite sure exactly who it was. I 24 have not seen the letter nor am I aware of the index. 25 MR. BIRMINGHAM: So prior to the listing you received CAPITOL REPORTERS (916) 923-5447 10445 1 a letter from someone, but you didn't consider that letter 2 in connection with the listing? 3 MR. BRANDT: Objection. Misstates his testimony. He 4 did not -- you're using "you" as opposed to Fish and 5 Wildlife Service versus Mr. Thabault personally. 6 C.O. STUBCHAER: Please, restate it. 7 MR. BIRMINGHAM: Did the Service consider the data 8 that accompanied the letter you referred to a few moments 9 ago in its decision to list? 10 MR. THABAULT: To the best of my knowledge the 11 decision was made with all the available information we had 12 available. 13 MR. BIRMINGHAM: And, again, you were the principal 14 author of the decision to list? 15 MR. THABAULT: Yes. 16 MR. BIRMINGHAM: Now, Mr. Thabault, isn't it correct 17 that based on data collected in 1995 -- I'm going to ask 18 you to assume that the 1995 data is not the product of, or 19 an artifact of highly unusual hydrologic conditions. 20 And if the 1995 data were included in the 21 analysis, isn't it correct, that the abundance and the 22 distribution of splittail would be at or near record high 23 levels? 24 MR. BRANDT: I'm going to object at this point. It's 25 now been about ten minutes. You know, it's starting to CAPITOL REPORTERS (916) 923-5447 10446 1 sound like we're trying the splittail decision here. And I 2 don't see how this has a relevance, first of all, to this 3 phase based on one comment. 4 And, secondly, is I think it's starting to go 5 beyond the scope of his making a comment about a concern -- 6 now we're going into everything about the decision and the 7 basis for the decision. 8 If Mr. Birmingham would like to try this case 9 about whether this should be listed or shouldn't be listed, 10 then there are appropriate forums for that to happen. I 11 don't think that's in Phase II-A of the State Water 12 Resources Control Board Bay-Delta Water Rights Hearing. 13 C.O. STUBCHAER: Mr. Birmingham, can you tie this to 14 the rebuttal testimony with recirculation? 15 MR. BIRMINGHAM: Absolutely. Again, he has based his 16 statement, a statement elicited by his counsel, that the 17 splittail is a species of concern on the decision to list. 18 And, again, I think we have a right to determine 19 whether or not the concern that the Service has with 20 respect to this particular species is a legitimate concern. 21 C.O. STUBCHAER: Time out a minute. 22 (Off the record from 10:15 a.m. to 10:19 a.m.) 23 C.O. STUBCHAER: Mr. Birmingham, the information 24 you're eliciting is interesting, but it's difficult to see 25 a tie to the rebuttal testimony on recirculation. So I'm CAPITOL REPORTERS (916) 923-5447 10447 1 going to request that you narrow your questions and relate 2 them to the rebuttal testimony on recirculation, please. 3 MR. BIRMINGHAM: Mr. Thabault, you testified in 4 response to a question by Mr. Brandt that the Service is 5 concerned with the effects of recirculation on the 6 Sacramento splittail? 7 MR. THABAULT: Potential effects, yes. 8 MR. BIRMINGHAM: And the reason for that concern 9 is -- the reason that you have listed the Sacramento 10 splittail as a species of concern in analyzing the 11 potential effects of the recirculation plan is because you 12 have concluded that there is an overall reduction in the 13 abundance of splittail even in wet years? 14 MR. THABAULT: That is correct. 15 MR. BIRMINGHAM: And in reaching that conclusion that 16 there's an overall abundance in splittail even in wet 17 years, you compared the abundance in 1993 with the 18 abundance in 1978? 19 MR. THABAULT: I'd have to look at the ruling 20 specifically to see that. 21 MR. BRANDT: I'd just note for the record that the 22 witness has not had the rule that Mr. Birmingham has been 23 citing to and quoting from before him. It's just been 24 handed to him now. 25 C.O. BROWN: Pull the mic in front of you. CAPITOL REPORTERS (916) 923-5447 10448 1 C.O. STUBCHAER: Is that an objection or a comment? 2 MR. BRANDT: That was just a note for the record. 3 C.O. STUBCHAER: Your comment is on the record. 4 MR. THABAULT: The comment, or the paragraph, 5 Mr. Birmingham, is referring to we didn't specific -- the 6 way you phrased the question is not correct. We did do an 7 analysis of abundance in the wet years from 1978 to 1993 8 during the original proposal period. And we did compare 9 1993 abundance to all wet years in that period and it did 10 show a decline in wet years, yes. 11 MR. BIRMINGHAM: 1993 was a wet year? 12 MR. THABAULT: I believe so, yes. 13 MR. BIRMINGHAM: And the statement that I've just 14 shown you from the Federal Register says that abundance in 15 1993 was less than three percent of what it was in 1978? 16 MR. BRANDT: Okay. You know I think I'll offer this: 17 I'd move to strike any reference in Mr. Thabault's 18 testimony to splittail at this point, because I think it 19 would be equally true to something else. 20 If we can move to strike then that would get rid 21 of this. And we would not be able to be trying the 22 splittail listing in this hearing. 23 MR. BIRMINGHAM: Mr. Stubchaer -- 24 MR. O'LAUGHLIN: Wait, you can't do that. 25 C.O. STUBCHAER: Just a moment. CAPITOL REPORTERS (916) 923-5447 10449 1 MR. O'LAUGHLIN: I'm sorry. Excuse me. 2 C.O. STUBCHAER: Just a moment. Mr. Birmingham. 3 MR. BIRMINGHAM: I appreciate Mr. Brandt's offer and 4 I don't mean to attributable to him any improper motive, 5 but it's not permissible for a party to offer evidence in 6 direct examination only to decide that maybe that wasn't a 7 good idea because of the information, the testimony that's 8 elicited on cross-examination. 9 I have tied this question specifically to the 10 recirculation proposal as directed by the Chair and I think 11 I'm entitled to follow up. 12 C.O. STUBCHAER: Mr. Nomellini. 13 MR. NOMELLINI: Yeah, I think it would be 14 inappropriate to strike it since it's been offered by the 15 Department of Interior and presented. But even if they did 16 succeed in having the testimony stricken, I think we're 17 entitled, in cross-examination, to pursue the splittail 18 thing to determine whether or not this witness is credible 19 on coming forward and raising the concerns with regard to 20 the recirculation. And the splittail was clearly one of 21 the bases for his concerns. 22 So I think we should be able to pursue it 23 regardless of what is done. And I think it would be 24 totally inappropriate to strike it or to allow it to be 25 withdrawn. CAPITOL REPORTERS (916) 923-5447 10450 1 C.O. STUBCHAER: Mr. O'Laughlin. 2 MR. O'LAUGHLIN: Well, I'm only going to address the 3 issue of striking the testimony. Mr. Thabault has 4 testified under oath to the best of his ability and 5 truthfully I believe that an issue of concern for U.S. Fish 6 and Wildlife is splittail. Even though his counsel may not 7 like the questions that Mr. Birmingham is asking, that 8 doesn't mean that the questioning can't go forward and the 9 testimony should be stricken. 10 Also, I'm concerned procedurally, we've already 11 gotten ourself into a little bit of quagmire in regards to 12 the Trinity County redaction and striking episode. And I 13 would not like to go through that again. So I think the 14 testimony should stay in the record and then it's up to the 15 Hearing Officer to decide the scope and extent of the 16 cross-examination, but it should not be stricken. 17 C.O. STUBCHAER: Well, we're not going to strike the 18 testimony. But I am going to ask Mr. Birmingham to more 19 closely tie this to the recirculation questions. I was 20 losing track of the tie, frankly, to your last question 21 about the '93 wet year and the abundance in '93. 22 MR. BIRMINGHAM: Well, I think if we go back, 23 Mr. Stubchaer, I specifically tied a question about the 24 reduction -- it's the overall concern that there is a 25 reduction of abundance in wet years to the concern they CAPITOL REPORTERS (916) 923-5447 10451 1 have, "they" being the Service, with the Sacramento 2 splittail and the effects of recirculation on the 3 Sacramento splittail. 4 C.O. STUBCHAER: And I missed the tie between the 5 recirculation and the abundance in the wet year, I guess, 6 if there was a tie. 7 MR. BIRMINGHAM: I believe that there was. And we 8 can go back and I'll ask the same question, again, or we 9 can go back and ask the Reporter to read back the question 10 and the answer. Which would you prefer? 11 C.O. STUBCHAER: Can you do that? 12 THE COURT REPORTER: Yes, but it will take me a 13 minute. 14 C.O. STUBCHAER: All right. We'll have the 15 question -- 16 MR. BIRMINGHAM: Would now be an appropriate time to 17 take the morning break while we look for that question and 18 answer? 19 C.O. STUBCHAER: Yes, it would be. Thank you, 20 Mr. Birmingham. We'll take our morning break now. 21 (Recess taken from 10:19 a.m. to 10:39 a.m.) 22 C.O. STUBCHAER: Back on the record. Mary, would 23 you, please, read the previous question and answer. 24 THE COURT REPORTER: Yes. 25 C.O. STUBCHAER: You want to give her the mic, CAPITOL REPORTERS (916) 923-5447 10452 1 please? 2 ---oOo--- 3 (Whereupon the question and answer were 4 read back by the Reporter.) 5 C.O. STUBCHAER: Yes, a tie was created, 6 Mr. Birmingham. The follow-on questioning I still expect 7 to remain focused more toward the recirculation alternative 8 and the effects in the listing decision. 9 MR. NOMELLINI: You won, Tom, go ahead. 10 MR. BIRMINGHAM: May I ask that the last question be 11 reread, the question that was pending when Mr. Brandt made 12 the objection? 13 C.O. STUBCHAER: We need to give the Court Reporter a 14 minute to get up to speed anyway so off the record for a 15 moment. 16 ---oOo--- 17 (Whereupon the question was read back by the Reporter.) 18 ---oOo--- 19 C.O. STUBCHAER: Back on the record. 20 MR. BIRMINGHAM: Mr. Thabault, prior to the morning 21 recess you stated that among the reasons that the Service 22 is concerned with the effects of the -- the potential 23 effects of the recirculation plan on splittail is because 24 there has been a decline in the abundance of splittail even 25 in wet years. CAPITOL REPORTERS (916) 923-5447 10453 1 MR. THABAULT: That's correct. 2 MR. BIRMINGHAM: Now, in fact, the Federal Register 3 notice of final rule listing the splittail as threatened 4 states, 5 (Reading): 6 "We believe wet years provide essential habitat 7 for splittail and allow populations to rebound 8 from dry years. Successful reproduction in 9 splittail is often highly correlated with wet 10 years. Large pulses of young fish were observed 11 in wet years 1982, '83, '86 and '95." 12 In 1995, one of the wettest years in recent 13 history, an increase in all indices was reported 14 as 1986, which was another wet year following a 15 dry year. 16 However, the young of the year taken per unit 17 effort ran, for example, either the number of 18 fish per net that is towed, or number of fish 19 per volume of water sampled has actually 20 declined in wet years steadily from a high of 21 12.3 in 1978 to 0.3 in 1995." 22 Is that correct? 23 MR. BRANDT: Could I ask the witness be provided a 24 copy of the rules since he does not have them in front of 25 him? CAPITOL REPORTERS (916) 923-5447 10454 1 C.O. STUBCHAER: Yes. 2 MR. BRANDT: This is going to take forever if we have 3 to keep passing back a copy of this rule. 4 MR. BIRMINGHAM: Well, as the Chair observed this 5 morning, we did not have an advanced copy of the written 6 testimony prior to Mr. Thabault appearing this morning. 7 I did not expect to be cross-examining him on 8 Sacramento splittail, because I did not expect him to 9 mention that as a species of concern. Had I anticipated 10 it, I certainly would have had a copy of it. 11 C.O. STUBCHAER: And regarding my comment, 12 Mr. Birmingham, there's no requirement that the rebuttal 13 testimony be distributed in writing, but Mr. Brandt spoiled 14 us, I think, with the first witness by so doing. 15 MR. BRANDT: And just so the record is clear, of 16 course, I would not never want to attribute any motives to 17 Mr. Birmingham, but it is rather interesting how much -- 18 how well prepared he is. And also for the record -- 19 MR. O'LAUGHLIN: That's -- 20 C.O. STUBCHAER: Wait, please. 21 MR. BRANDT: For the record, someone from DWR has 22 just handed Mr. Thabault an extra copy of the rule. 23 MR. THABAULT: It is the rule, yes. 24 MR. BIRMINGHAM: And a few moments ago, Mr. Thabault, 25 did I accurately read from the Federal Register notice, CAPITOL REPORTERS (916) 923-5447 10455 1 from the bottom of Page 5964 to the top of Page 5965? 2 MR. THABAULT: It appears that you accurately read 3 it, yes, that's correct. 4 MR. BIRMINGHAM: Now, in reaching the conclusion that 5 the young of the year taken per unit effort has actually 6 declined in wet years, you compared the abundance in 1978 7 with the abundance in 1993? 8 MR. THABAULT: What we did was we did a statistical 9 analysis which compared the abundance in 1993 to all wet 10 years. The .3 percent, I do believe, is reflective of a 11 comparison through 1978 which we've classified as 12 pre-decline. 13 MR. BIRMINGHAM: I would ask you to look at Page 5967 14 of the Federal Register notice. 15 MR. THABAULT: Okay. 16 MR. BIRMINGHAM: At the bottom of the right-hand 17 column on Page 5967 it states, does it not, 18 (Reading): 19 "Abundance in 1993 was less than 3 percent 20 of what it was in 1978"? 21 MR. THABAULT: That is correct. 22 MR. BIRMINGHAM: Now, 1978 was a wet year following 23 how many dry years? 24 MR. THABAULT: I believe that would be '76 and '77, 25 two years. CAPITOL REPORTERS (916) 923-5447 10456 1 MR. BIRMINGHAM: And 1993 was a wet year following 2 how many dry years? 3 MR. BRANDT: I object. Beyond the scope of the 4 rebuttal testimony, because I don't see -- I don't think he 5 made any comment about dry years versus wet years, whether 6 dry years were following wet years. So I don't see that 7 this is tied into the precise scope of the rebuttal 8 testimony. 9 MR. BIRMINGHAM: He testified a few moments ago that 10 the reason that they're concerned about the effects of the 11 recirculation plan on splittail is based in part on the 12 conclusion that abundance of splittail has declined even in 13 wet years. Now, I have an absolute right to cross-examine 14 him on the validity of that conclusion. 15 MR. BRANDT: But that is -- that is the scope of the 16 rebuttal's cross, not the scope of the rebuttal's direct. 17 And so the scope in the rebuttal's direct did not include 18 that. 19 Also, can I add for the record that I have an 20 objection based on relevance as to this phase, but I will 21 continue to have that objection. 22 MR. BIRMINGHAM: Mr. Stubchaer? 23 C.O. STUBCHAER: Mr. Birmingham. 24 MR. BIRMINGHAM: When he said in response to a 25 question posed by Mr. Brandt, counsel for the Department of CAPITOL REPORTERS (916) 923-5447 10457 1 the Interior, "We have a concern about the Sacramento 2 splittail and the effect of the recirculation plan on the 3 Sacramento splittail," that opened the door. 4 I will acknowledge, I will be the first to 5 acknowledge that I am going into this in minute detail, but 6 we have a right to cross-examine this witness on the 7 legitimacy of the concern that he expressed in connection 8 with his response to Mr. Brandt's question. 9 C.O. STUBCHAER: Mr. Brandt. 10 MR. BRANDT: I would just add that the fact that the 11 splittail has been listed is a fact that is already in the 12 record. It's outside the scope of anything that this Board 13 would be deciding on and it is a -- whether the listing was 14 correct or whether they had enough information and all 15 those kinds of things, is far beyond the scope of what this 16 Board would have within its decision making, within its 17 decision particularly for this phase. 18 So I would emphasize, it's not just outside the 19 scope of rebuttal, it's also outside the scope of relevance 20 to this phase to go to this level of detail as to the basis 21 for a final listing decision that has already occurred. 22 C.O. STUBCHAER: Mr. Birmingham. 23 MR. BIRMINGHAM: In response to an earlier question, 24 and I wrote this down because I could foresee that this 25 might become an issue, Mr. Thabault testified that the CAPITOL REPORTERS (916) 923-5447 10458 1 predominant factor behind the Service's concern about the 2 effects of recirculation on the splittail was because the 3 splittail has been listed as a threatened species by the 4 Service. 5 Now, again, I think that this is absolutely tied 6 to, or within the scope of the direct examination by 7 Mr. Brandt on rebuttal. 8 C.O. STUBCHAER: I'll tell you my viewpoint, I agree 9 that the question of the splittail was opened up in the 10 rebuttal testimony. What I think is missing, kind of, is 11 the link between the recirculation and the dry and wet year 12 abundance. 13 And another thing, the question just comes to my 14 mind, you may get there, there have been no questions about 15 entrapment, or taking by the pumps as opposed to the effect 16 of the wet and dry years. And I'm looking forward to such 17 questions, but I'm going to permit you to -- anyway, 18 Mr. Birmingham, I do think that you're going into minute 19 detail on the reason for the listing and the wet year 20 versus dry year abundance. And I would like to see that 21 more closely tied to the rebuttal testimony and -- well, go 22 ahead, your comment. 23 MR. BIRMINGHAM: Well, I thought that we did that 24 during the recess when we went back and looked at the 25 specific question and answer. CAPITOL REPORTERS (916) 923-5447 10459 1 C.O. STUBCHAER: Yeah, but since then we've been on a 2 tangent, in my opinion. 3 MR. BIRMINGHAM: Well, Mr. Stubchaer, I certainly am 4 going to follow the direction of the Board. We, in 5 connection with this examination, are going to go down many 6 tangents because there are many factors that went into the 7 Service's decision to list. 8 And if you're telling me that you think that the 9 Board doesn't need this detail, then I will sit down. But 10 it is a tangent, I agree, but it is an important basis of 11 the concern that was expressed by the Service. 12 C.O. STUBCHAER: What you just said about going on 13 the decision to list, that's what we have observed. And it 14 is of interest to the Board; however, the question is: Is 15 it within the scope of rebuttal? 16 MR. BIRMINGHAM: And I think that it is. I think 17 that it is because he said "the predominant factor, the 18 predominant factor -- 19 MR. THABAULT: That is not correct. 20 C.O. STUBCHAER: Just a moment. You will have your 21 opportunity. 22 MR. BIRMINGHAM: The predominant factor about their 23 concern. And we can ask the Reporter to search for the 24 term "predominant factor." We can find it very quickly. 25 That is about the effects of recirculation is because the CAPITOL REPORTERS (916) 923-5447 10460 1 species has been listed. 2 And if there's any question about that, 3 Mr. Stubchaer, I would ask that the Reporter to go back and 4 search for that term, because I'm very confident that the 5 testimony will support the argument that I'm making. 6 C.O. STUBCHAER: Do you believe that probing into the 7 decision to list splittail as threatened is within the 8 scope of rebuttal? 9 MR. BIRMINGHAM: I think that it became within the 10 scope of the rebuttal when he said that the splittail is 11 one of the species that they are concerned about in terms 12 of the impacts of the recirculation plan. 13 C.O. STUBCHAER: Mr. Brandt. 14 MR. BRANDT: I would just emphasis, it's also a 15 relevance question here as well to this level of detail. 16 Relevant to -- we've got to keep in mind what the decision 17 of this Board is about. 18 Is it about evaluating whether the Service made a 19 proper decision about listing the splittail, or is it about 20 how do we best implement the Water Quality Control Plan? 21 So I emphasize that it's not just about the scope 22 of rebuttal, which I think is a valid objection, but I also 23 think it's about the scope of the relevance to this Board's 24 decision. 25 MR. CAMPBELL: I would -- CAPITOL REPORTERS (916) 923-5447 10461 1 C.O. STUBCHAER: Mr. Campbell. 2 MR. CAMPBELL: I would join in the objection in 3 regard to relevance. I think the listing decision is a 4 regulation that the Board, that in its determination in 5 these proceedings, does not have any jurisdiction over one 6 way or the other whether it was a wise regulation or not, 7 as Mr. Birmingham is trying to get to. So I would also 8 object on the basis of relevance. 9 C.O. STUBCHAER: Mr. Nomellini. 10 MR. NOMELLINI: I think it is relevant to delve into 11 the reasoning and the concerns of the listing as they 12 relate to the impacts of recirculation. And I think the 13 tie has been made here. 14 I agree that if it's a matter of no interest to 15 the Board to pursue it, then, it's certainly within the 16 Chair's authority to limit the scope of cross-examination 17 within some reason, but I think it's clearly relevant. 18 C.O. STUBCHAER: Mr. Birmingham. 19 MR. BIRMINGHAM: Mr. Stubchaer, I also think that it 20 is very relevant, but I will be the first to acknowledge 21 that the Chair has the discretion to exclude it. 22 Going back to my basis of an earlier objection I 23 made on the shortness of life, one of the very learned 24 counsel in the room pointed out that, in fact, there is a 25 regulation that grants the Chair discretion to exclude CAPITOL REPORTERS (916) 923-5447 10462 1 evidence on the grounds that its probative value is 2 substantially outweighed by the probability that it's 3 admission will necessitate undue consumption of time. 4 I think that's the only basis that exists for the 5 Chair to say that this is not going to be admitted. It, 6 certainly, is relevant. It is within the scope. 7 C.O. STUBCHAER: You know, speaking of time, we've 8 spent so much time discussing this objection it probably 9 would have been quicker to answer the question, but -- 10 MR. BRANDT: I would suggest otherwise, but -- 11 C.O. STUBCHAER: Off the record a moment. 12 (Off the record from 10:57 a.m. to 10:59 a.m.) 13 C.O. STUBCHAER: Mr. Birmingham -- 14 MR. BIRMINGHAM: Yes. 15 C.O. STUBCHAER: -- and, Mr. Brandt, we're going to 16 permit the line of questioning to continue. But, again, 17 I'm going to admonish you to keep it narrow and try to tie 18 it back to the rebuttal testimony. 19 MR. BIRMINGHAM: Do you recall the question, 20 Mr. Thabault? 21 MR. THABAULT: Not after that exchange, I'm sorry. 22 MR. BIRMINGHAM: I believe that you testified that 23 1978 was a wet year following two dry years, 1976 and 1977. 24 MR. THABAULT: As I recall, yes. 25 MR. BIRMINGHAM: And my next question was: 1993 was CAPITOL REPORTERS (916) 923-5447 10463 1 a wet year following how many dry years? 2 MR. THABAULT: I believe there were six years, dry 3 years preceding 1993. 4 MR. BIRMINGHAM: Now, what is the typical life 5 expectancy of a Sacramento splittail? 6 MR. THABAULT: I believe it's approximately seven to 7 ten years. 8 MR. BIRMINGHAM: So you would agree, wouldn't you, 9 Mr. Thabault, that comparing data from a wet year following 10 two dry years on abundance of splittail with data on 11 abundance in a wet year following six or seven dry years is 12 questionable? 13 MR. THABAULT: I do not think that that's 14 appropriate. I should say, the analysis we did I think was 15 exactly appropriate, is what I want to say, in that it was 16 one methodology using one survey using one statistical 17 analysis amongst many analyses to try and get the answer to 18 our decision making. 19 MR. BIRMINGHAM: Now, has the Department of Fish and 20 Game taken a position concerning the listing of the 21 Sacramento splittail and whether or not it should be a 22 species of concern with respect to the recirculation plan 23 on the species? 24 MR. THABAULT: I am unaware of a formal Fish and Game 25 position relating to splittail and the recirculation CAPITOL REPORTERS (916) 923-5447 10464 1 proposal at this time. 2 MR. BIRMINGHAM: Isn't it correct that the California 3 Department of Fish and Game conducted an analysis under the 4 State's Endangered Species Act concerning the need to list 5 the Sacramento splittail? 6 MR. THABAULT: I am unaware if they made a specific 7 analysis under CESA, the California Endangered Species Act, 8 to list the splittail. 9 MR. BIRMINGHAM: Has the Department of Fish and Game 10 submitted comments to the Fish and Wildlife Service in 11 connection with the proposed listing under the Federal 12 Endangered Species Act? 13 MR. THABAULT: I don't recall if we got comments 14 specifically from Fish and Game formally during the comment 15 period. We did receive comments from the Resources Agency 16 relative to the ruling. 17 MR. BIRMINGHAM: And what was the position of the 18 Resources Agency? 19 MR. THABAULT: The position of the Resources Agency 20 at that time was that they believed that listing of the 21 splittail was not warranted and requested us to reconsider 22 our decision at the proposed rule stage. 23 MR. BIRMINGHAM: And in connection with that request, 24 the Department of Resources submitted data showing that 25 from 1995, 1996 and preliminary data from 1998 there was an CAPITOL REPORTERS (916) 923-5447 10465 1 increase in the abundance of Sacramento splittail compared 2 to historical records? 3 MR. THABAULT: I do not recall the Resources Agency 4 providing specific comments during the comment period which 5 included 1998 data. 6 MR. BIRMINGHAM: Mr. Thabault, what is meant by a 7 "fall mid-water trawl"? 8 MR. THABAULT: The fall mid-water trawl is a type of 9 sampling gear that's used in approximately the September 10 through December time period to sample for fish. 11 MR. BIRMINGHAM: And what is a "bay mid-water trawl"? 12 MR. THABAULT: The bay mid-water trawl is a similar 13 gear type, but it is more focused down in San Pablo Bay and 14 areas west of the confluence. 15 MR. BIRMINGHAM: Now, in making its decision to list 16 the Sacramento splittail and thereby causing concern within 17 the Service about the effects of the recirculation plan, 18 did the Service compare salvage data? 19 MR. THABAULT: Could you be more specific? 20 MR. BIRMINGHAM: Well, is it correct that Sacramento 21 splittail are sometimes entrained at pumps operated by the 22 State Water Project? 23 MR. THABAULT: That is correct. 24 MR. BIRMINGHAM: And they're sometimes entrained by 25 pumps operated at Tracy by the Central Valley Project? CAPITOL REPORTERS (916) 923-5447 10466 1 MR. THABAULT: That is correct. 2 MR. BIRMINGHAM: Now, analyzing whether or not the 3 species should be listed as threatened, did the Service 4 analyze salvaged data collected at the Central Valley 5 Project pumps, or the State Water Project pumps? 6 MR. THABAULT: We did evaluate salvaged data, yes. 7 MR. BIRMINGHAM: And you collected data on salvage 8 for the young of the year; is that correct? 9 MR. THABAULT: Yes, I believe that is correct. 10 MR. BIRMINGHAM: And you analyzed data from 1979 11 through 1997? 12 MR. THABAULT: I believe we analyzed data for the 13 years we had available, yes. 14 MR. BIRMINGHAM: And when you analyzed salvaged data 15 for the young of the year for the period 1979 through 1997; 16 isn't it correct, that it shows that there's an increase in 17 the abundance of young of the year of Sacramento splittail? 18 MR. THABAULT: Without going back to the specifics of 19 the analysis I'm going to have trouble. I'm not sure of 20 that one. 21 MR. BIRMINGHAM: And with respect to salvaged data 22 collected at the Banks pumping plant, that's the pumping 23 plant operated by the State Water Project; is that correct? 24 MR. THABAULT: To the best of my knowledge, yeah. 25 MR. BIRMINGHAM: Now, when you look at the salvage CAPITOL REPORTERS (916) 923-5447 10467 1 data collected at the State Water Project for the period 2 1979 through 1997; isn't is correct, that those data show 3 an increase in abundance of young of the year? 4 MR. THABAULT: Again, without going back to the 5 specific analysis that we conducted, I'm having trouble 6 pulling that one out. 7 MR. BIRMINGHAM: Now, with respect to all life stages 8 of the Sacramento splittail, in conducting the analysis 9 that led to the listing and, thereby, the concerns that the 10 Service has on the recirc -- of the recirculation plan's 11 potential effects on the species, you analyzed data 12 collected by the fall mid-water trawl for the period 1967 13 through 1997? 14 MR. THABAULT: That is correct. 15 MR. BIRMINGHAM: Now, isn't it correct that those 16 data for the periods 1967 through 1997 show that, 17 generally, there is an increase in abundance of all life 18 stages of Sacramento splittail from the period 1967 through 19 1997? 20 MR. THABAULT: That is not necessarily my 21 recollection. Again, without the specific numbers in front 22 of me I would have -- I would need the values. 23 MR. BIRMINGHAM: Now, earlier you testified that the 24 Service was of the view that the high abundance indices in 25 1995 were an artifact of highly unusual hydrologic CAPITOL REPORTERS (916) 923-5447 10468 1 conditions. 2 MR. THABAULT: That is what is stated in the rule, 3 yes. 4 MR. BIRMINGHAM: And the rule accurately states the 5 conclusion of the Service? 6 MR. THABAULT: That is correct. 7 MR. BIRMINGHAM: Now, if the 1998 data showed that 8 there was a greater abundance of splittail than in 1995, 9 would you have reached the same conclusion that the 1995 10 data were an artifact of highly unusual hydrologic 11 conditions? 12 MR. THABAULT: '95 or 98? 13 MR. BIRMINGHAM: '95. 14 MR. THABAULT: '95. 15 MR. BIRMINGHAM: Let me ask the question again. 16 MR. THABAULT: Yeah. Since you were talking about 17 two sets, I was confused. 18 MR. BIRMINGHAM: You reached a conclusion about 1995 19 and 1995 is an artifact? 20 MR. THABAULT: That is correct. 21 MR. BIRMINGHAM: All right. 1998 was a wet year? 22 MR. THABAULT: Correct. 23 MR. BIRMINGHAM: And I'm asking you to assume that 24 the 1998 data showed that there was a greater abundance of 25 Sacramento splittail than existed in 1995. CAPITOL REPORTERS (916) 923-5447 10469 1 MR. THABAULT: That is your position, yes. Again, I 2 have not seen the data. 3 MR. BIRMINGHAM: I'm asking you to assume that for 4 purposes of my question. 5 MR. THABAULT: Very well. 6 MR. BIRMINGHAM: If there were a greater abundance of 7 splittail in 1998 than in 1995, would you still conclude 8 that the abundance indices in 1995 were an artifact of 9 highly unusual hydrologic conditions? 10 MR. THABAULT: We would have to look at the specific 11 hydrologic conditions and go back and take a look at that, 12 yes. 13 MR. BIRMINGHAM: Now, the hydrologic conditions that 14 existed in 1995 that resulted in what you've termed an 15 "artifact" was the flooding of spawning habitat during the 16 spawning period? 17 MR. THABAULT: That is my opinion, yes. 18 MR. BIRMINGHAM: But that same flooding occurred in 19 1997, did it not, Mr. Thabault? 20 MR. THABAULT: The same flooding occurred, but it was 21 a different timing, I believe. 22 MR. BIRMINGHAM: The same flooding occurred in 1998? 23 MR. THABAULT: Again, I would assume so because of 24 the water year type. 25 MR. BIRMINGHAM: And so although the conditions that CAPITOL REPORTERS (916) 923-5447 10470 1 existed in 1995 may not have occurred for a decade prior to 2 1995, but the fact that the same conditions occurred in 3 1998 suggests that the 1995 data were not an artifact of 4 highly unusual hydrologic conditions? 5 MR. THABAULT: Without conducting the analysis I 6 would not say that. 7 MR. BIRMINGHAM: But the Service did not -- or in 8 drafting the notice that's contained in the Federal 9 Register you did not rely on the 1998 data? 10 MR. THABAULT: We used all the data we had available 11 in the office and within the Service to make a decision. 12 Fish and Wildlife Service makes a decision at the 13 Washington level. 14 MR. BIRMINGHAM: I have no further questions. 15 C.O. STUBCHAER: Okay. 16 Mr. Jackson, good morning. 17 ---oOo--- 18 CROSS-EXAMINATION OF THE DEPARTMENT OF THE INTERIOR 19 BY THE REGIONAL COUNCIL OF RURAL COUNTIES 20 BY MICHAEL JACKSON 21 MR. JACKSON: Good morning. Michael Jackson 22 appearing on behalf of the Regional Council of Rural 23 Counties. 24 Mr. Thabault, your testimony on rebuttal is 25 directed towards the recirculation alternative in South CAPITOL REPORTERS (916) 923-5447 10471 1 Delta Water Agency Number 51; is that correct? 2 MR. THABAULT: That is correct. 3 MR. JACKSON: How does that, in your opinion, differ 4 from the recirculation element described as Alternative 6 5 in the Board's DEIR? 6 MR. THABAULT: As I stated previously, I believe in 7 concept they are roughly similar, but I have not seen the 8 specifics in terms of origin of water, or the 9 implementation plan for South Delta Water Agency Exhibit 10 51, so I do not know if there's any specific differences. 11 MR. JACKSON: All right. In answering these 12 questions, what else would -- or in making this evaluation, 13 what else in terms of specifics do you think you would 14 need? 15 MR. THABAULT: We would certainly want to compare the 16 hydrologic modeling analysis that the Board has done in 17 relationship to the DEIR and look at a similar analysis to 18 the South Delta Water Agency's exhibit, evaluate how 19 they're assuming the water would enter the main stem of the 20 San Joaquin River, what its origin was, what the 21 probability of obtaining that water is, the export regimes 22 that would be associated with that, the timing, the 23 different water -- by water year types. Those are pretty 24 much the standard things that we look at when we evaluate 25 these kinds of action. CAPITOL REPORTERS (916) 923-5447 10472 1 MR. JACKSON: When you reviewed the Board's DEIR for 2 Alternative 6, did you find those specifics in that 3 alternative? 4 MR. THABAULT: Again, as I stated previously, I do 5 not know exactly how we commented on Alternative 6 in our 6 comment letter on the DEIR. Presumably, we look at the 7 factors that were available in the EIR to help us formulate 8 our comments. 9 MR. JACKSON: Now, you indicated that -- let's look 10 at the recirculation alternative alone, and I guess this 11 would be the recirculation element as proposed in South 12 Delta Water Agency Number 51. 13 Is it fair to say that you've come up with 14 questions in regard to five areas, essentially? I believe 15 you said: The distribution of flows, entrainment, 16 hydrologic effects, available capacity and contaminants as 17 regarding the Newman Wasteway. 18 MR. THABAULT: Available capacity isn't necessarily a 19 concern of the Service. It's a concern of a lot of other 20 people, but not necessarily of us. 21 MR. JACKSON: All right. But have we covered, 22 essentially, the questions that you have in regard to the 23 recirculation alternative? 24 MR. THABAULT: Essentially, yes. 25 MR. JACKSON: Okay. Let's deal with those CAPITOL REPORTERS (916) 923-5447 10473 1 specifically. You indicate the tributary flows, in your 2 opinion, would be better because the water from the 3 individual tributaries would help with imprinting; is that 4 one of these? 5 MR. THABAULT: Certainly one aspect, yes. 6 MR. JACKSON: All right. Now, when you take a look 7 at the recirculation element, are you only looking at the 8 pulse flow period, or are you looking at the year-round 9 situation in regard to imprinting? 10 MR. THABAULT: Well, for the purposes of this 11 discussion I believe the recirculation proposal is solely 12 targeted towards the pulse flow period. So I guess I would 13 have to confine my comments to the pulse flow period, not 14 that the concern doesn't exist outside the pulse flow 15 period. 16 MR. JACKSON: Okay. Now, basically the concern is 17 that all of the water, or a substantial portion of the 18 water coming from the Newman Wasteway might interfere with 19 the olfactory queues, the imprinting and cause straying of 20 salmonids during the pulse flow period; is that correct? 21 MR. THABAULT: Not so much the straying during the 22 pulse flow period, but behavioral queues would affect 23 adults as coming back. 24 MR. JACKSON: All right. So the straying is not 25 something that you would expect during the pulse flow CAPITOL REPORTERS (916) 923-5447 10474 1 period? 2 MR. THABAULT: That is correct. 3 MR. JACKSON: When would you expect that? 4 MR. THABAULT: I would expect straying to occur 5 roughly three years later when the adults of those 6 juveniles that may have been affected by that flow return 7 to the river. 8 MR. JACKSON: All right. 9 MR. THABAULT: Roughly in the fall period. 10 MR. JACKSON: All right. So for straying what would 11 be important is the mixture of the water during the fall 12 period, not during the pulse flow period? 13 MR. THABAULT: Well, it would be both. They imprint 14 on the water as juveniles and they detect that water when 15 they come back as adults. So the mixture would apply in 16 both periods. 17 MR. JACKSON: All right. Now, this is a problem that 18 would happen, in your opinion, from water being released 19 down the Newman Wasteway; is that correct, is that where 20 we're worried about the confused old factory queues and the 21 imprinting problem? 22 MR. THABAULT: Under this specific proposal I believe 23 there's also -- part of it has to do with Mud and Salt 24 Slough and releases there as well, if I read the testimony 25 correctly. So I think it would apply to both locations. CAPITOL REPORTERS (916) 923-5447 10475 1 MR. JACKSON: Okay. Now, in terms of the 2 alternatives that are being suggested, in general, this 3 particular problem is not specific to the recirculation 4 problem, is it? 5 MR. THABAULT: To varying degrees probably not. 6 MR. JACKSON: All right. And, in fact, the 7 substantial reliance on the Stanislaus River carries to 8 meet water quality in periods outside the pulse flow have 9 the potential for causing the same problem; doesn't it? 10 MR. THABAULT: To some extent possible, yes. 11 MR. JACKSON: And that's because the fish in the 12 other tributaries would be receiving less of a queue 13 because of the predominance of the Stanislaus water, 14 correct? 15 MR. THABAULT: Generically, that would be, yes. 16 MR. JACKSON: And do you know whether that would be 17 more of a problem than the recirculation might cause 18 because it's for a longer period of time, in more months 19 and because its of a greater magnitude? 20 MR. O'LAUGHLIN: Objection. That assumes facts not 21 in evidence that the Stanislaus River actually contributes 22 more water than any other tributary. 23 C.O. STUBCHAER: Mr. Jackson. 24 MR. JACKSON: These phases are connected, but we all 25 know that the Stanislaus River is carrying the great CAPITOL REPORTERS (916) 923-5447 10476 1 majority of the flow required to meet the standards at 2 Vernalis in months other than the pulse flow. 3 C.O. STUBCHAER: You're supposed to tie it to the 4 rebuttal testimony. 5 MR. JACKSON: I am trying to determine whether or not 6 this imprinting and old factory queue problem would be 7 worse for recirculation over the year period than the other 8 alternatives. 9 C.O. STUBCHAER: Mr. O'Laughlin. 10 MR. O'LAUGHLIN: Well, I have no problem with him 11 tying it back to the rebuttal testimony. My concern though 12 is that he's assuming facts not in evidence. I've been 13 here everyday of the hearing, except for one, and there has 14 been no hydrologic testimony presented that the Stanislaus 15 River produces a disproportionate amount of water in order 16 to meet the water -- to meet flow at Vernalis. 17 And he hasn't pinned it down into any specific 18 time period either. In fact, if I heard the testimony 19 during Phase V, I would say that most of the water coming 20 down at Vernalis in the late summertime is not coming from 21 the Stanislaus River, but is coming from the west side 22 drainage. 23 MR. JACKSON: It's clear from the testimony that 24 there's substantially less water coming out of the San 25 Joaquin at Friant than there is out of the New Melones. CAPITOL REPORTERS (916) 923-5447 10477 1 It's also clear from taking a look at the AFRP flows that 2 there's much less water coming out of the Tuolumne, the 3 Merced, the Fresno than there is out of the Stanislaus in 4 terms of percentage. 5 MR. O'LAUGHLIN: Well, I know he wants to believe 6 that, but he can't cite to anything in the record to 7 support that. In fact, I would specifically disagree with 8 that, that with the testimony by Mr. Steiner. I would say 9 that in the later summer more water comes out of the 10 Tuolumne than the Stanislaus under the new FERC flows. And 11 if we're going to talk about Friant, why are we talking 12 about Friant since there aren't any fish flows at the 13 Merced River anyway? 14 C.O. STUBCHAER: Mr. Jackson, were you referring to a 15 specific time of year, I don't remember? 16 MR. JACKSON: I was referring to the fall at this 17 point. 18 C.O. STUBCHAER: Yeah, I think there is a point in 19 the fall that there is no evidence about the Stanislaus 20 being predominant. So -- 21 MR. JACKSON: All right. Then, I'll refer to the 22 summer. 23 C.O. STUBCHAER: All right, or the pulse flow. Why 24 don't you lay the foundation for the period you want to 25 talk about? CAPITOL REPORTERS (916) 923-5447 10478 1 MR. JACKSON: All right. 2 I would like to talk about the year-round period 3 in general first and then go to the pulse flow. Is there 4 anything about Alternative 6, the recirculation element, 5 that causes problems for the species that you are concerned 6 with outside of the pulse flow period? 7 MR. THABAULT: Did you say any of the alternatives or 8 Alternative 6 specifically? 9 MR. JACKSON: Alternative 6 specifically. 10 MR. THABAULT: Again, if my understanding of 11 Alternative 6 is correct, it more or less applies to the 12 pulse flow period. So, therefore, specific to the pulse 13 flow period and Alternative 6's concerns revolve mostly 14 around the spring. 15 MR. JACKSON: All right. 16 MR. THABAULT: There is an indirect result in the 17 fall, potentially of that. 18 MR. JACKSON: And what is that effect? 19 MR. THABAULT: That would potentially be the effect 20 of straying of adult salmon. 21 MR. JACKSON: Okay. Now, calling your attention to 22 the pulse flow period, is it your assumption in regard to 23 your concerns that the diversion of the water that ends up 24 in the Newman Wasteway will happen during the pulse flow 25 period? CAPITOL REPORTERS (916) 923-5447 10479 1 MR. THABAULT: Again, since it's just a concept, I do 2 not know exactly specifically when they would propose to 3 put the water into the Newman Wasteway. My understanding 4 is that it could happen either prior to or potentially 5 during the pulse flow period. 6 MR. JACKSON: Okay. Does it make a difference in 7 your analysis when the water is diverted -- let me back up. 8 Does it make a difference in the comparison 9 whether the water is diverted during the pulse flow period 10 or prior to the pulse flow period in terms of your 11 concerns? 12 MR. THABAULT: The concerns are certainly different 13 between those two periods. 14 MR. JACKSON: All right. Would you explain what the 15 concern is about diversions during the pulse flow period? 16 MR. O'LAUGHLIN: Objection. Vague and ambiguous, 17 "diversions." I don't know where he's talking about. Are 18 we talking about from -- 19 MR. JACKSON: At the pumps in the Delta. 20 C.O. STUBCHAER: The pumps. 21 MR. O'LAUGHLIN: What pumps? There's about 400 or 22 500 pumps in the Delta. 23 MR. JACKSON: At the State Water Project pumps and at 24 the Central Valley -- at Clifton Court Forebay and at the 25 federal pumps at Tracy. CAPITOL REPORTERS (916) 923-5447 10480 1 MR. THABAULT: The pulse flow is, by design, to 2 overlap with the bulk of the outmigration of juvenile 3 salmon. It was also designed through the Biological 4 Opinion to overlap with the predominant spawning time 5 period for Delta smelt. And so, therefore, increased 6 exports during that pulse flow period raises concerns of 7 entrainment of the pulse flow and could potentially 8 minimize the benefits of the pulse flow. 9 MR. JACKSON: Are there worries about entrainment at 10 those -- at the state and federal pumps on the species of 11 concern at times other than the pulse flow? 12 MR. THABAULT: Certainly significant levels of 13 entrainment at any time are of concern to the Service. 14 MR. JACKSON: Okay. Is there anything distinctive 15 about the withdraw of water through the state and federal 16 pumps during the pulse flow period that are not present at 17 other times water is diverted through those pumps? 18 MR. THABAULT: I mean nothing distinctive, 19 necessarily, comes to mind other than the overlap that I've 20 already discussed. 21 MR. JACKSON: All right. Now, you talked also about 22 the hydrological effects in the Delta from the 23 recirculation alternative. What hydrologic effects are you 24 talking about? 25 MR. THABAULT: Well, I believe I discussed hydrologic CAPITOL REPORTERS (916) 923-5447 10481 1 effects in general. Our concern when you export water, 2 depending on the inflows, depending on the other hydrologic 3 conditions that are there, the abundance in distribution of 4 fish, the location of those fish, all relate to how flows 5 move around in the central and southern Delta, what their 6 potential effect on entrainment at the state and federal 7 projects are in relation to how certain other indirect 8 effects such as exposure to other diversions in the Delta 9 may occur as a result of those hydrologic changes. 10 MR. JACKSON: In regard to the hydrological effects 11 of the recirculation alternative and, at this point, on 12 splittail only, what hydrologic effects would you expect 13 from additional water diversions at the state and federal 14 pumps on the splittail during the pulse flow period? 15 C.O. STUBCHAER: Mr. Jackson, regarding your 16 question, are you talking about the additional water being 17 pumped for the recirculation alternative specifically? 18 MR. JACKSON: Yes. 19 MR. THABAULT: Without a specific proposal in front 20 of me to evaluate just exactly how much water is being 21 contributed to the Delta as a result of recirculation and 22 the amount of that water being exported, it would be very 23 difficult for me to give you an opinion on what the 24 incremental difference on entrainment of splittail would be 25 as a result of that. CAPITOL REPORTERS (916) 923-5447 10482 1 MR. JACKSON: Did you in the course of your review of 2 the Board's Draft Environmental Impact Report find such an 3 analysis in the Board's document? 4 MR. THABAULT: I recall a discussion of entrainment 5 in general in the DEIR. I do not recall specifically if 6 there was a quantitative analysis that the Board had done 7 relative to entrainment of any species for any particular 8 alternative. 9 MR. JACKSON: Do you believe that that would be 10 necessary before you as the Fish and Wildlife's expert on 11 splittail could make a conclusion -- could come to a 12 conclusion about the various alternatives? 13 MR. THABAULT: I do recall the comment we provided to 14 the Board was that a more specific analysis of entrainment 15 and the period of operation of the export facilities' 16 relation to when the fish might most probably be in the 17 Delta would be an appropriate analysis to do. 18 MR. JACKSON: During the pulse flow period, where, in 19 general, are the splittail in relation to the export pumps? 20 MR. THABAULT: Splittail have a fairly broad 21 distribution when it comes to spawning. They can be 22 differentially distributed either on the Sacramento or the 23 San Joaquin River. They can be equally distributed, there 24 can be a higher abundance on one side of the system versus 25 the other. CAPITOL REPORTERS (916) 923-5447 10483 1 Depending on certain conditions during the pulse 2 flow period we would be anticipating the early to middle 3 arrival of juvenile splittail into the Delta would be 4 passing through to their rearing grounds either in the 5 Delta or out at Suisun Bay. 6 MR. JACKSON: So the rearing grounds are downstream 7 of the pumps, correct? 8 MR. THABAULT: Predominantly, yes. 9 MR. JACKSON: And the spawning grounds are 10 hydrologically above the pumps? 11 MR. THABAULT: Typically the spawning is in the main 12 stems or the tributaries of the major streams in the 13 Central Valley. 14 MR. JACKSON: And that includes the San Joaquin? 15 MR. THABAULT: That is correct. 16 MR. JACKSON: Where are the Delta smelt during the 17 pulse flow and during the time that the recirculation 18 alternative would be diverting water from the state and 19 federal pumps? 20 MR. THABAULT: Again, the Delta smelt are very 21 diverse in their abundance in the Delta geographically 22 depending on any one of the conditions that may send them 23 into a particular location. We've had spawning at 24 Vernalis, or below Vernalis on the main stem, San Joaquin. 25 Typically a major spawning ground for Delta smelt CAPITOL REPORTERS (916) 923-5447 10484 1 has been the north Delta, Cache Slough, Lindsey Slough 2 area. We've had spawning on the east side streams, the 3 lower east side streams within the Delta. 4 Typically during the pulse flow period we have 5 adults which are just finishing their spawning and we have, 6 hopefully, large numbers of juveniles that are in the 7 system and are starting their rearing and their emigration 8 out to Suisun Bay for their summer rearing. 9 MR. JACKSON: All right. Now, you've indicated that 10 the U.S. Fish and Wildlife Service is not responsible for 11 the salmonid; is that correct? 12 MR. THABAULT: Under the Federal Endangered Species 13 Act, that is correct. They are a trust resource that we do 14 have concerns with. 15 MR. JACKSON: All right. Has there been any 16 consultation, to your knowledge, between your agency and 17 the National Marine Fishery Service in regards to the 18 effects of the recirculation alternative on salmon and 19 steelhead? 20 MR. THABAULT: I have not had specific discussions 21 with National Marine Fishery Service on this issue. There 22 may have been discussions, but I'm unaware of them. 23 MR. JACKSON: During the pulse flow period would it 24 be likely that there would be smolts, salmon smolts or 25 young of the year steelhead in the neighborhood of the CAPITOL REPORTERS (916) 923-5447 10485 1 state and federal diversion facilities in the Delta? 2 MR. THABAULT: During the pulse flow period? 3 MR. JACKSON: Yes. 4 MR. THABAULT: For salmon, that is correct. I'd have 5 to go back and double check my steelhead life history. I'm 6 not sure if yearlings would be in the vicinity at this 7 particular time or not. 8 MR. JACKSON: All right. Did you do any analysis 9 comparing the situation with the recirculation proposal in 10 regard to salmon and steelhead with that of any of the 11 other alternatives? 12 MR. THABAULT: I do not believe the Service nor 13 myself have provided a specific analysis of the 14 alternatives against Alternative 6 for salmon and 15 steelhead. 16 MR. JACKSON: So basically your concern about salmon 17 and steelhead is simply increased diversion at any time 18 from the state and federal pumps? 19 MR. THABAULT: I don't think that's exactly what I 20 said. I believe the Service is concerned with entrainment 21 of fish when they're vulnerable. Certainly for juvenile 22 salmon, fall-run specifically off the San Joaquin River, 23 the pulse flow is by design to overlap with the peak of the 24 outmigration of salmon. So diversion certainly during the 25 pulse flow period raises the level of concern for salmon CAPITOL REPORTERS (916) 923-5447 10486 1 for the San Joaquin River specifically. 2 MR. JACKSON: Has there been any analysis done by the 3 U.S. Fish and Wildlife Service as to the degree of harm 4 caused to salmon and steelhead by diversions during the 5 pulse flow period? 6 MR. THABAULT: We have not done a specific 7 quantitative analysis to that issue. 8 MR. JACKSON: All right. In regard to contaminants 9 from the Newman Wasteway, has the U.S. Fish and Wildlife 10 Service determined that the contaminants from the wasteway 11 are a problem for any species of concern? 12 MR. THABAULT: We have not determined that they are a 13 problem. What we have determined is they may be a problem. 14 MR. JACKSON: In your analysis in which you've 15 determined that these contaminants may be a problem, have 16 you assumed that without the recirculation alternative 17 being approved that the contaminants that you've identified 18 in the Newman Wasteway do not reach the San Joaquin River? 19 MR. THABAULT: I don't think we've gone so far to 20 make that assumption, no. 21 MR. JACKSON: Do you know whether or not the removal 22 of contaminants, if it happens during the operation of the 23 recirculation alternative would result in more damage or 24 less damage from contaminants in the San Joaquin River over 25 a year's cycle? CAPITOL REPORTERS (916) 923-5447 10487 1 MR. THABAULT: Could you specify "removal of 2 contaminants"? I'm a little bit confused by that. 3 MR. JACKSON: Well, I guess what you're worried about 4 is the water coming from the Newman Wasteway in the 5 recirculation alternative will bring these contaminants 6 with it. 7 MR. THABAULT: That is one potential mechanism, yes. 8 MR. JACKSON: Do you know whether or not these 9 contaminants enter the San Joaquin anyway whether we do the 10 recirculation or not? 11 MR. THABAULT: Again, as I stated earlier, I'm not 12 entirely clear on the hydrologic connections to the Newman 13 Wasteway down there and I really do not have an opinion on 14 that right now. 15 MR. JACKSON: All right. Basically, have you done 16 any comparison of the expected entrainment in the state and 17 federal pumps from any of the alternatives except the 18 recirculation alternative? 19 MR. THABAULT: We have not done a specific 20 quantitative analysis of entrainment of any of the 21 alternatives at this time. 22 MR. JACKSON: Do you agree or disagree with the State 23 Board's EIR in its comparison of the level of entrainments 24 between the alternatives? 25 MR. THABAULT: I do not recall specifically what the CAPITOL REPORTERS (916) 923-5447 10488 1 quantitative analysis of the Board has done in their DEIR, 2 so I can't answer that. 3 MR. JACKSON: Did you or anyone at the Fish and 4 Wildlife Service compare the hydrologic effects resulting 5 from water flow patterns and export patterns from each 6 alternatives -- each of the alternatives including the 7 recirculation? 8 MR. THABAULT: I do not believe we did a specific 9 analysis. I do believe we generically raised concerns 10 about Central Delta hydrodynamics. 11 MR. JACKSON: And you have no reason to believe that 12 recirculation would be better or worse than the other 13 alternatives in regard to Delta hydrodynamics? 14 MR. THABAULT: Not without a specific analysis. 15 MR. JACKSON: Did you review the State Board's Draft 16 Environmental Impact Report to determine whether or not 17 that analysis was present in that draft? 18 MR. THABAULT: I personally did not make that review, 19 no. 20 MR. JACKSON: Did you compare the -- did you compare 21 either the available physical capacity for water exports 22 from the state and federal pumps for the various 23 alternatives, or did you compare the regulatory capacity 24 for the different alternatives? 25 MR. THABAULT: I don't believe we made that specific CAPITOL REPORTERS (916) 923-5447 10489 1 comparison. The Board made some assumptions as to what 2 capacity would be with certain physical features in place. 3 So, therefore, we evaluated whatever the Board had presumed 4 the capacity could be under a given alternative. 5 MR. JACKSON: Do you as you sit here today have any 6 dispute with the Board's analysis of the physical and 7 regulatory capacity for the pumps during the -- using the 8 various alternatives? 9 MR. THABAULT: I believe the Department of the 10 Interior raised some concerns about modeling assumptions in 11 our response to the Board, but I do not know of any 12 specific conflict that we have with our analysis right now. 13 MR. JACKSON: Thank you. No further questions. 14 C.O. STUBCHAER: Thank you, Mr. Jackson. 15 Mr. O'Laughlin. 16 ---oOo--- 17 CROSS-EXAMINATION OF THE DEPARTMENT OF THE INTERIOR 18 BY THE SAN JOAQUIN RIVER GROUP AUTHORITY 19 BY TIM O'LAUGHLIN 20 MR. O'LAUGHLIN: Good morning, Mr. Thabault. My name 21 is Tim O'Laughlin and I represent the San Joaquin River 22 Group Authority and its member agencies. 23 A couple of follow-up questions in regards to your 24 testimony. How much time did you spend reviewing South 25 Delta Water Agency Exhibit 51 in preparation for your CAPITOL REPORTERS (916) 923-5447 10490 1 testimony? 2 MR. THABAULT: Off and on between when I received the 3 testimony probably a couple hours. 4 MR. O'LAUGHLIN: Okay. Did you ever review the 5 testimony by Mr. Hildebrand in front of the State Water 6 Resources Control Board for Phase II-A in preparation for 7 your testimony here today? 8 MR. THABAULT: Did I review the testimony in 9 preparation for today? 10 MR. O'LAUGHLIN: Yeah, Mr. Hildebrand's. 11 MR. THABAULT: Yes, his written testimony? 12 MR. O'LAUGHLIN: No. I mean his oral testimony. 13 MR. THABAULT: No, I did not review any of the 14 transcript material, no. 15 MR. O'LAUGHLIN: Now, what was the scope and extent 16 of your review of the State Water Resources Control Board 17 Draft EIR Alternative Number 6 in preparation for your 18 testimony here today? 19 MR. THABAULT: I did not review the DEIR for under 20 Alternative 6 at all in preparation for today's testimony. 21 MR. O'LAUGHLIN: I want to explore with you -- why 22 don't you explain to me what your understanding is of the 23 comprehensive recirculation plan presented in South Delta 24 Water Agency Exhibit 51 which is the basis of your 25 testimony, your understanding of the plan. CAPITOL REPORTERS (916) 923-5447 10491 1 MR. THABAULT: My understanding of the plan is that 2 rather than providing flows from the tributaries for the 3 purpose of the pulse flow period, that flows would be 4 controlled from the dischargers in the San Joaquin Valley 5 for release into the Newman Wasteway and into Mud and Salt 6 Sloughs to provide the additional components to the 7 Vernalis pulse flow period. 8 That the barriers would be in place. And that 9 there would be provisions to repump or reexport the water 10 that was released through the recirculation for either 11 addition re-release in recirculation of timing permits or 12 to go back into -- delivered to other additional beneficial 13 uses. 14 MR. O'LAUGHLIN: Okay. Well, let's focus first on 15 this concept of where the water comes from. Is it your 16 understanding that this is drainage water from Salt and Mud 17 Sloughs that would be a component of the recirculation 18 plan? 19 MR. THABAULT: Run that by me one more time. 20 MR. O'LAUGHLIN: Sure. Is it your understanding that 21 it's drainage water being held on the west side that is 22 part of the component of the recirculation plan presented 23 in South Delta Water Agency Exhibit 51? 24 MR. THABAULT: I believe there was a mention of 25 control of releases of drainage water into Mud and Salt CAPITOL REPORTERS (916) 923-5447 10492 1 Slough concurrent with release of Newman Wasteway water to 2 control contaminant loads of Mud and Salt Slough. 3 MR. O'LAUGHLIN: Okay. 4 MR. THABAULT: It was unclear as to whether that 5 water was actually to contribute to the flow at Vernalis or 6 not. 7 MR. O'LAUGHLIN: All right. So then, now, where's 8 your understanding of the water that's coming down the 9 Newman Wasteway is coming from? Do you understand where 10 that water is coming from? 11 MR. THABAULT: I do not understand exactly how that 12 water is going to come into the Newman Wasteway and what 13 its proposed route is. 14 MR. O'LAUGHLIN: All right. Now, you said that you 15 also understood that there would be barriers in place under 16 the proposed recirculation plan for South Delta Water 17 Agency Exhibit 51; is that correct? 18 MR. THABAULT: That is correct. 19 MR. O'LAUGHLIN: Okay. What barriers are you 20 specifically talking about? 21 MR. THABAULT: I am specifically referring to the 22 barrier at the Head of Old River, which is in place to 23 assist in juvenile salmon migration. And the three, what 24 we refer to as the agricultural barriers on Tracy, at Old 25 River at Tracy, on Middle River and on Grantline Canal. CAPITOL REPORTERS (916) 923-5447 10493 1 MR. O'LAUGHLIN: Okay. Now, is it your understanding 2 that under South Delta Water Agency Exhibit 51 the proposal 3 that the -- all four of those barriers would be in during 4 the 31-day pulse flow period? 5 MR. THABAULT: That is my understanding, yes. 6 MR. O'LAUGHLIN: Okay. Now, do you have any 7 understanding in South Delta Water Agency's proposal of 8 a -- the three tidal barriers being in for 30 days prior to 9 the pulse flow and for 30 days after the pulse flow without 10 the Head of Old River Barrier in? 11 MR. THABAULT: If I recall the testimony, the 12 proposal was to install the barrier sometime in April. I 13 don't recall specifically if there was a 30 day pre- and 14 post-operation of those. 15 MR. O'LAUGHLIN: Okay. Just a second, I have to find 16 my note on this. On Page 7 of South Delta Water Agency 17 Exhibit 51 it says, "the tidal barriers," which I'm 18 assuming are -- they use "tidal barriers," and U.S. Fish 19 and Wildlife Service uses "ag barriers," but I think we're 20 talking about the same thing. It says under Section B, 21 (Reading): 22 "Create a hydraulic barrier to keep downstream 23 smolt migrants from being drawn to the export 24 pumps before and after the 31-day pulse." 25 Do you see that? CAPITOL REPORTERS (916) 923-5447 10494 1 MR. THABAULT: I do see that. 2 MR. O'LAUGHLIN: Okay. When you prepared your 3 testimony and were talking earlier about the effects on the 4 fish, did you take into account having these tidal barriers 5 in 31 days ahead of the pulse flow and -- or for a time 6 before the pulse flow and for a time after the pulse flow 7 without the Head of Old River Barrier? 8 MR. THABAULT: Not specifically, I wasn't necessarily 9 considering that. 10 MR. O'LAUGHLIN: Would you -- do you have an 11 understanding as to what is meant in South Delta Water 12 Agency Exhibit 51, Page 7, Number B under tidal barriers, 13 "hydraulic barriers for downstream smolt migrants"? 14 MR. THABAULT: Yes, I do understand what they're 15 talking about. 16 MR. O'LAUGHLIN: Okay. What are they talking about? 17 MR. THABAULT: There is a concept that the three 18 agricultural barriers, by their operation, can effect -- 19 can effectively create a hydrologic block in Old River to 20 basically provide for juvenile salmon remaining in the main 21 stem of the San Joaquin River and, in effect, serving some 22 proportion of the function that the Head of Old River 23 Barrier may, in fact, provide. 24 MR. O'LAUGHLIN: Do you know if there's been any 25 study of that theory? CAPITOL REPORTERS (916) 923-5447 10495 1 MR. THABAULT: I believe there's been some modeling 2 analysis on that, but I don't recall the specifics of it. 3 MR. O'LAUGHLIN: Does U.S. Fish and Wildlife have an 4 opinion as to whether or not a tidal barrier at the head -- 5 I mean a tidal barrier at Old River at Tracy would, in 6 fact, keep salmon smolts from moving down the San Joaquin 7 River into Old River? 8 MR. THABAULT: I don't know if the Service has it -- 9 has a position on it. My personal opinion is biologically 10 it probably does not serve as good a function as a full 11 barrier might for salmon. 12 MR. O'LAUGHLIN: A full barrier at the Head of Old 13 River? 14 MR. THABAULT: At the Head of Old River. 15 MR. O'LAUGHLIN: Now, in talking with -- is 16 entrainment a function of the amount of water pumped at the 17 export facilities? 18 MR. THABAULT: That is not the sole factor. 19 MR. O'LAUGHLIN: It is one of the factors? 20 MR. THABAULT: It is a factor, yes. 21 MR. O'LAUGHLIN: And whether or not fish are present 22 is another factor I would assume? 23 MR. THABAULT: Certainly. 24 MR. O'LAUGHLIN: Now, when you looked at South Delta 25 Water Agency Exhibit 51 on Page 4, Mr. Hildebrand had a CAPITOL REPORTERS (916) 923-5447 10496 1 pumping regime that he thought made sense and that was 2 workable under the Delta Smelt Biological Opinion. 3 Can you tell me whether or not the example given 4 there would meet the requirements of the Delta Smelt 5 Biological Opinion? 6 MR. THABAULT: Starting from? 7 MR. O'LAUGHLIN: I think it's the third paragraph, 8 the third full paragraph and the fourth full paragraph. 9 MR. THABAULT: With some assumptions in that it could 10 be correct, yes. 11 MR. O'LAUGHLIN: Okay. Now, if we were to change 12 these numbers and have it so that what was actually 13 happening if there was a base flow of 3,000 in the river 14 and there was an export rate of 1500 in the river, and we 15 needed to get to a flow requirement of 5,000 at Vernalis 16 for the pulse flow, would you say that that would meet the 17 Delta Smelt Biological Opinion? 18 In other words, you'd be pumping 1500 cfs of 19 export plus you would be recirculating an additional 3500 20 cfs in order to get to the 5,000. 21 MR. HERRICK: Objection -- 22 MR. O'LAUGHLIN: 2,000, I'm sorry. You'd be 23 recirculating an additional 2,000 cfs in order to get to 24 the 5,000. 25 MR. THABAULT: And pumping remains at? CAPITOL REPORTERS (916) 923-5447 10497 1 MR. O'LAUGHLIN: Pumping is 3500 at the pumps now and 2 you have 5,000 cfs in the San Joaquin River. 3 MR. THABAULT: No, I do not believe that would be 4 consistent with the Biological Opinion, if I do the math in 5 my head. 6 MR. O'LAUGHLIN: Okay. What would happen under a 7 scenario where in order -- if you had an export rate plus a 8 recirculation rate where the recirculation rate and the 9 export rate equaled the flow in the San Joaquin River 10 during the pulse flow, would that meet the Delta Smelt 11 Biological Opinion? 12 MR. THABAULT: You're going to have to run that by me 13 again, Mr. O'Laughlin. 14 MR. O'LAUGHLIN: Sure, not a problem. What I'm 15 asking about is if you add the export rate, let's say it's 16 1500 cfs, and you add the recirculation rate, and let's 17 call that 3,000, in order to -- and the flow in the San 18 Joaquin River is 4500, so we have a 1, to 1 ratio, would 19 that meet the Delta Smelt Biological Opinion? 20 MR. THABAULT: A 1 to 1 export to flow at Vernalis? 21 MR. O'LAUGHLIN: Yes. 22 MR. THABAULT: No. 23 MR. O'LAUGHLIN: Now, has anyone at the South Delta 24 Water Agency contacted you in regards to initiating a 25 consultation on the recirculation plan? CAPITOL REPORTERS (916) 923-5447 10498 1 MR. THABAULT: No. 2 MR. O'LAUGHLIN: How long since -- you do work with 3 the Endangered Species Act; is that correct? 4 MR. THABAULT: I do indeed. 5 MR. O'LAUGHLIN: Okay. Now, what is your official 6 title at the U.S. Fish and Wildlife Service? 7 MR. THABAULT: I'm the deputy assistant field 8 supervisor for endangered species, environmental 9 contaminants. 10 MR. O'LAUGHLIN: So do you report directly to 11 Mr. Wayne White. 12 MR. THABAULT: My direct supervisor is Kay Goude, the 13 assistant field supervisor. 14 MR. O'LAUGHLIN: All right. Now, given your 15 expertise and background, if the State Water Resources 16 Control Board in April were to adopt the recirculation 17 proposal, how long would it take for your consultation to 18 occur under the Endangered Species Act for the Delta smelt? 19 MR. THABAULT: That would depend on a number of 20 factors. Number one would be the amount and extent and 21 adequacy of the information that was provided to us at the 22 time of the reinitiation. 23 Provided all that information was sufficient for 24 us to conduct an analysis, the law allows us 135 days to 25 complete the consultation and write a Biological Opinion on CAPITOL REPORTERS (916) 923-5447 10499 1 the reinitiation. 2 MR. O'LAUGHLIN: Okay. Based on your testimony here 3 today, I'm assuming that you don't have enough information 4 in which to perform that task based on the numerous 5 concerns that you've raised here today; is that correct? 6 MR. THABAULT: At this time, that is correct. 7 MR. O'LAUGHLIN: Are you aware of how much water 8 the -- excuse me, let me rephrase that. 9 Are you aware of the maximum amount of 10 contribution that the San Joaquin River Exchange 11 Contractors would be making to the pulse flow in any given 12 year under the San Joaquin River Agreement? 13 MR. THABAULT: I am. 14 MR. O'LAUGHLIN: Okay. And what is that amount? 15 MR. THABAULT: I believe it's 110,000 acre-feet. 16 MR. O'LAUGHLIN: No, under the San Joaquin River 17 Agreement. 18 MR. THABAULT: Maybe I'm confusing my agreements. 19 MR. O'LAUGHLIN: Okay. Sure. The Exchange -- 20 MR. THABAULT: Oh, the Exchange Contractors. 21 MR. O'LAUGHLIN: The Exchange Contractors. 22 MR. THABAULT: I am not aware of the specific 23 allocation within the agreement, only the total. 24 MR. O'LAUGHLIN: They got a little concerned back 25 there. CAPITOL REPORTERS (916) 923-5447 10500 1 MR. THABAULT: Sorry, Mr. Jackson. 2 MR. O'LAUGHLIN: I thought you were going to let me 3 off the hook, that would have been good. Okay. 4 MR. THABAULT: I apologize. 5 MR. O'LAUGHLIN: Okay. So it's a 110,000 -- you 6 don't know what their specific contribution is? 7 MR. THABAULT: I do not know what the specific 8 allocation within that 110,000 acre-feet is, no. 9 MR. O'LAUGHLIN: Okay. If I told you that their 10 maximum contribution was 5,000 acre-feet in any given year, 11 what opinion, if any, could you render about that amount of 12 the water's impacts on imprinting for outmigrating salmon 13 smolts in the San Joaquin River basin given the total 14 amount of flow being delivered at Vernalis? 15 MR. THABAULT: I probably would not give you an 16 opinion right now without looking at that a little bit 17 closer. 18 MR. O'LAUGHLIN: Okay. When -- does U.S. Fish and 19 Wildlife -- if water is released from Newman Wasteway, 20 that's above the -- I always get confused about whether 21 it's above or below. 22 C.O. STUBCHAER: Mr. O'Laughlin, how much more 23 cross-examination do you think you're going to have? 24 MR. NOMELLINI: How much more testimony are you going 25 to have? CAPITOL REPORTERS (916) 923-5447 10501 1 MR. O'LAUGHLIN: Mr. Nomellini. 2 I'm probably going to go for another 15 or 20 3 minutes. 4 C.O. STUBCHAER: Is this a good time to break, then, 5 for lunch? 6 MR. O'LAUGHLIN: Anytime you would like. It's kind 7 of a hodgepodge of questions, so there's really no -- 8 C.O. STUBCHAER: All right. Let's take our lunch 9 break now. We'll reconvene at 1:00 p.m. 10 (Luncheon recess.) 11 ---oOo--- 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 10502 1 TUESDAY, FEBRUARY 23, 1999, 1:00 P.M. 2 SACRAMENTO, CALIFORNIA 3 ---oOo--- 4 C.O. STUBCHAER: Call the hearing back to order. I 5 have a question for Mr. Brandt and then we'll get to you, 6 Mr. O'Laughlin. 7 Did you want to put Ms. Manza on now, or do you 8 want to finish the cross-examination of Mr. Thabault? 9 MR. BRANDT: I'd hoped to get Mr. Thabault done 10 today. So I actually just told Peggy Manza she could go 11 and have lunch. 12 C.O. STUBCHAER: Okay. 13 MR. BRANDT: She came straight down here from her 14 doctor's appointment and not had lunch, so I told her to go 15 have lunch. 16 C.O. STUBCHAER: Very well. 17 MR. BRANDT: Let's try to get this done. 18 C.O. STUBCHAER: Okay. Mr. O'Laughlin -- well, 19 Mr. Godwin. 20 MR. GODWIN: Well, I'm with him, so -- 21 MR. O'LAUGHLIN: It's the same thing. 22 C.O. STUBCHAER: But Mr. O'Laughlin is up to continue 23 his cross. 24 MR. O'LAUGHLIN: No. I'm up to do scheduling. 25 C.O. STUBCHAER: Oh, scheduling, okay. CAPITOL REPORTERS (916) 923-5447 10503 1 MR. O'LAUGHLIN: At the end of the morning session I 2 briefly spoke with you, Mr. Chairman, about a scheduling 3 problem we're running into. We have five witnesses -- no, 4 four witnesses, three of them are together in a panel. 5 They will be Sushil Arora, JoAnne Kipps and Mr. Grober. 6 It only makes sense to put that testimony in if 7 Sushil Arora testifies first about the basis of the 8 modeling runs that DWR did that they supplied to the SJRIO 9 Modeling group. Sushil is not available until Thursday. 10 Is that correct? 11 MR. GODWIN: Uh-huh. 12 MR. O'LAUGHLIN: We could put that panel on on 13 Thursday. Mr. Hanson would be our other witness. He is 14 not available on either Wednesday or Thursday. We were 15 planning on calling him on March 9th. That's why I said 16 earlier this morning that we'd finish our case on March 17 9th. So the problem that we're facing is that tomorrow may 18 be an open day. 19 C.O. STUBCHAER: Well, let's see -- 20 MR. BIRMINGHAM: I could move to reopen my 21 cross-examination of Mr. Thabault. 22 C.O. STUBCHAER: Motion denied. 23 MR. BRANDT: You can move anything that you want. 24 C.O. STUBCHAER: Let's see, there were some parties 25 that didn't identify themselves as having rebuttal or not CAPITOL REPORTERS (916) 923-5447 10504 1 having rebuttal. Are there any parties present in the room 2 who wish to put on rebuttal who have yet to put it on? 3 Does Stockton East wish to put on a rebuttal case? 4 MS. HARRIGFELD: No, we don't. 5 C.O. STUBCHAER: Okay. 6 MS. HARRIGFELD: Not at this point. 7 C.O. STUBCHAER: Okay. So that leaves -- let's 8 see -- 9 C.O. BROWN: Who's left? 10 C.O. STUBCHAER: Did Central San Joaquin decline 11 rebuttal? 12 MR. O'LAUGHLIN: What? 13 C.O. STUBCHAER: I wonder if Central San Joaquin 14 declined rebuttal. 15 MR. O'LAUGHLIN: Yes. 16 C.O. BROWN: Let's get a show of hands -- 17 C.O. STUBCHAER: Well, that's what I was asking for, 18 but we don't have any hands. Anyone else want to put on 19 rebuttal, please, identify yourselves. Seeing none, so 20 that leaves the San Joaquin River Group, I guess. 21 Do you have anyone else, staff? 22 MS. LEIDIGH: No, I don't think there's anybody else 23 on the list. The only thing that I could suggest if these 24 witnesses are not available, would be to mix up the phases 25 by starting on Phase VI, but I'm not sure that's -- I don't CAPITOL REPORTERS (916) 923-5447 10505 1 know whether the Board wants to do that or not. 2 C.O. STUBCHAER: Well, we hate to let days go by as 3 empty, because time is precious. 4 MR. O'LAUGHLIN: I realize that. 5 C.O. STUBCHAER: But what Ms. Leidigh suggests is a 6 possibility, but it's something I hoped we could avoid, 7 starting Phase VI before we finish the rebuttal of II-A. 8 Is there any possibility that Mr. Hanson could be 9 here one of the two days? You said he's putting on a 10 seminar or something like that on Thursday? 11 MR. O'LAUGHLIN: Here's my problem with Mr. Hanson 12 and we'll have to coordinate on this: We were working with 13 the State Water Project Contractors. I never issued a 14 subpoena for Mr. Hanson. So technically I don't have the 15 ability to force Mr. Hanson to be here. I'm sure he would 16 be cooperative, but it's not like the other witnesses where 17 I have an actual subpoena out on them. And if they have 18 problems with scheduling I can tell them I have a subpoena 19 and you're supposed to be here. 20 So -- and I realize Chuck told me -- excuse me. 21 Mr. Hanson has told me that he's very busy and he's giving 22 at least two presentations at Asilomar. So I would have to 23 check back with him. He told me specifically he could not 24 be here Wednesday and Thursday. 25 MR. GARNER: And he told me the same thing. I was CAPITOL REPORTERS (916) 923-5447 10506 1 glad to make him available at any time that we can. 2 Unfortunately, this is the annual IED conference at 3 Asilomar, yesterday, today and tomorrow. And he is a 4 presenter, there really is no way he can -- 5 C.O. STUBCHAER: Presenter on both days? 6 MR. GARNER: Yes. If you like, I can go page him and 7 see if there might be a time he's available tomorrow, if he 8 can drive up here. I can see what I can do, but I 9 understood that he was presenting on both days. 10 C.O. STUBCHAER: Yeah, see if you can contact him and 11 see if we can work him in preferably tomorrow, I guess, 12 because you're panel three on Thursday. 13 MR. O'LAUGHLIN: Okay. We will endeavor to do so. 14 C.O. STUBCHAER: And, Mr. Godwin, did you have 15 anything in addition? 16 MR. GODWIN: Well, I thought DWR was going to be here 17 after lunch, but we're having the same problem with 18 Mr. Arora, he's giving a presentation tomorrow afternoon, 19 so he's not available tomorrow afternoon either. 20 Again, we have a similar situation with the State 21 Water Contractors that he's not our witness, he's a DWR 22 employee. Although we have subpoenaed him, we'd hate to 23 have to pull him out of conference. 24 C.O. STUBCHAER: Okay. Mr. Brandt, would Department 25 of the Interior be ready to go with Phase VI if we have a CAPITOL REPORTERS (916) 923-5447 10507 1 blank day? 2 MR. BRANDT: It's actually all four of us and 3 probably not, because we'd have the same -- a lot of our 4 witnesses would be down there. Tomorrow? We might be able 5 to go with actually Phase VII and get Phase VII over with, 6 potentially. 7 C.O. STUBCHAER: That got somebody's attention. 8 Mr. Birmingham. 9 MR. BIRMINGHAM: There are a lot of parties that have 10 provided notices of intent to appear in Phase VII. And I 11 think that they have been expecting that Phase VII would 12 commence sometime in March or April at the earliest, given 13 the schedule and the notices that the Board has provided. 14 I don't think it would be physically possible for 15 us to call all of the parties and tell them to be here 16 tomorrow for the commencement of Phase VII. 17 C.O. STUBCHAER: Is there any party ready to begin 18 Phase VI tomorrow? Department of Interior, Water 19 Resources, Fish and Game? 20 MR. BRANDT: We're all together. 21 MR. CAMPBELL: We're putting on a panel presentation. 22 MR. BRANDT: It's a large panel. 23 C.O. STUBCHAER: Delta-Mendota Water Authority, 24 Westlands, Trinity County, EDF, Tri-Valley, Kern, Tulare, 25 Pixley? CAPITOL REPORTERS (916) 923-5447 10508 1 Well, I guess Mr. Buck is out trying to reach 2 Mr. Hanson regarding tomorrow. 3 Mr. Nomellini. 4 MR. NOMELLINI: Why can't we split a panel? 5 C.O. STUBCHAER: What regard would that assist? 6 MR. NOMELLINI: Well, not all the people on the 7 various panels, if I heard this dialogue, are unavailable. 8 They're just some of the people that they wanted to call as 9 a panel. 10 C.O. BROWN: That's a good idea. 11 C.O. STUBCHAER: There were three people on one panel 12 for Department of Interior, then Mr. Hanson separate. 13 MR. NOMELLINI: It's just a suggestion in case it 14 hadn't been considered, but -- 15 MR. BRANDT: No, I understand. But for us, for the 16 Department of the Interior, all of our members, John 17 Renning -- only member would be one member who has -- no, 18 everyone is going -- all four of our witnesses for Phase VI 19 are going to Asilomar. Three of them have presentations, 20 four of them are going. So Fish and Game -- 21 MR. CAMPBELL: I understand my witness is 22 unavailable, too. May I ask the Chair, was Mr. Nomellini 23 referring to -- 24 C.O. STUBCHAER: Yes. 25 MR. CAMPBELL: -- Phase VI, or was it the Phase II-A CAPITOL REPORTERS (916) 923-5447 10509 1 panel by the River Group? 2 C.O. STUBCHAER: I have the same question. Were you 3 referring to Phase II-A rebuttal, or Phase VI direct? 4 MR. NOMELLINI: I was referring to any one of these 5 situations where we can proceed tomorrow. 6 C.O. STUBCHAER: We do want to keep it moving. The 7 cleanest thing would be to finish II-A rebuttal and then 8 move on to Phase VI. But if that's not possible, we may 9 have to start Phase VI. 10 Well, why don't we proceed with the 11 cross-examination of Mr. Thabault and then see what 12 Mr. Buck brings back regarding Mr. Hanson. 13 Mr. O'Laughlin. 14 MR. O'LAUGHLIN: Thank you, Chairman. 15 MR. BRANDT: Mr. Garner, actually. 16 C.O. STUBCHAER: What? 17 MR. BRANDT: Mr. Garner is State Water Contractors. 18 C.O. STUBCHAER: Oh, Garner, I'm sorry. Thank you 19 for the correction. 20 MR. O'LAUGHLIN: This morning, Mr. Thabault, in 21 regards to some questions about consultation you 22 responded -- let me rephrase that. 23 In regard to the San Joaquin River Agreement, 24 has there been any consultation in regards to endangered 25 species? CAPITOL REPORTERS (916) 923-5447 10510 1 MR. THABAULT: We do have a letter from Reclamation 2 requesting our concurrence that the San Joaquin Agreement 3 fits within the Biological Opinion. 4 MR. O'LAUGHLIN: That was the testimony. Thank you 5 very much for stating it so succinctly. Do you have that 6 letter present with you today? 7 MR. THABAULT: I do. 8 MR. O'LAUGHLIN: Okay. 9 MR. BRANDT: You have the wrong -- 10 MR. O'LAUGHLIN: Okay. So let me ask you: You 11 handed me this pile of letters, is this the letter that you 12 are referring to in regards to the request from the United 13 States Bureau of Reclamation? 14 MR. THABAULT: The letter I gave to you is one 15 actually addressed to Mr. Lecky with the National Marine 16 Fishery Service, must have had a clerical error in terms of 17 the one they wrote to us. 18 MR. O'LAUGHLIN: Okay. Then, let me ask you this: 19 In regards to the letter that I have in hand, then what is 20 the letter to Mr. Lecky about? 21 MR. THABAULT: This is Endangered Species -- meeting 22 the flow objectives for the San Joaquin River Agreement 23 1999 to 2010, Endangered Species Act compliance. 24 MR. NOMELLINI: Is this -- 25 C.O. STUBCHAER: Excuse me. Mr. Nomellini. CAPITOL REPORTERS (916) 923-5447 10511 1 MR. NOMELLINI: I would like to have the document 2 referenced in hand with a little more description. We're 3 not going to know what it is from the transcript. And I 4 think these things ought to be marked and put into the 5 record, unless they're part of a general publication. 6 The Federal Register references that 7 Mr. Birmingham made, he had him read them into the record 8 and they're readily available, but I don't know if these 9 letters are. 10 MR. O'LAUGHLIN: Well, I don't disagree with what 11 Mr. Nomellini says, Chairman Stubchaer. And I will get 12 around, once I've identified it, I will mark it and then 13 move it into evidence. 14 As I'm -- you know, I didn't know what they have. 15 I'm asking questions, I'm getting responses. So we'll get 16 around to marking it and handing out copies. 17 C.O. STUBCHAER: And when will you get around to 18 that? 19 MR. O'LAUGHLIN: Sooner rather than later. 20 C.O. STUBCHAER: Okay. 21 MR. O'LAUGHLIN: Hopefully very soon. 22 C.O. STUBCHAER: Okay. 23 MR. O'LAUGHLIN: Is this letter to Mr. Lecky from 24 Mr. Ploss the same letter that Mr. Ploss sent to U.S. Fish 25 and Wildlife Service in regards to consultation? CAPITOL REPORTERS (916) 923-5447 10512 1 MR. THABAULT: It's slightly different. 2 MR. O'LAUGHLIN: Okay. 3 MR. NOMELLINI: Could you at least refer to the date 4 of the letter when you say "this letter." 5 Mr. Chairman, if you could ask him to do that? 6 C.O. STUBCHAER: Yes, I think that's appropriate, 7 Mr. Nomellini. 8 For purposes of identification, Mr. O'Laughlin, 9 so -- 10 MR. O'LAUGHLIN: Yeah. 11 C.O. STUBCHAER: Yes. 12 MR. O'LAUGHLIN: On this February 8th, 1990, letter 13 to Mr. Lecky, is U.S. Fish and Wildlife Service responding 14 to this letter in any shape or form? 15 MR. THABAULT: No, we received a letter of our own. 16 MR. O'LAUGHLIN: Okay. Did you -- have you 17 personally responded to that letter, Mr. Thabault? 18 MR. THABAULT: The Service has not responded to the 19 letter from Reclamation at this time. 20 MR. O'LAUGHLIN: Now, is Reclamation in the process 21 of responding to the letter from the United States Bureau 22 of Reclamation asking for consultation under the Endangered 23 Species Act (sic)? 24 MR. THABAULT: We are in the process of responding to 25 that letter, yes. CAPITOL REPORTERS (916) 923-5447 10513 1 MR. O'LAUGHLIN: Is that response -- if you were to 2 describe a continuum of responding, is it: Are you just 3 starting out in your response, or are you almost done in 4 responding to the letter? 5 MR. THABAULT: We'll be responding very shortly to 6 that letter. 7 MR. O'LAUGHLIN: Okay. In regards to the 8 recirculation, has U.S. Fish and Wildlife Service looked at 9 any of the opinions that they've issued for the Interim 10 South Delta Barrier's Program in arriving at any opinions 11 and conclusions that you've expressed here today in regards 12 to the operation of the tidal barriers? 13 MR. THABAULT: We haven't looked at the Interim South 14 Delta Draft Opinion, per se. We understand that the Head 15 of Old River Barrier is part of the agreement. It does 16 have a consultation through 2000 and will probably need to 17 be reconsulted on at the time the permit is up. 18 MR. O'LAUGHLIN: Okay. I have one question, I'm 19 curious, when you did the splittail and you talked about in 20 the 1995, did you also throw out 1983, since that was a -- 21 probably the largest hydrologic year on record? 22 MR. THABAULT: In that particular analysis it was 23 referred to, we did not discard 1983. 24 MR. O'LAUGHLIN: And is there a reason why you did or 25 didn't? CAPITOL REPORTERS (916) 923-5447 10514 1 MR. THABAULT: We had included 1983 in both analyses. 2 We -- since we had the 1995 data, we wanted to determine if 3 either have the data in or having the data out would change 4 the results of the analysis from what we had done at the 5 original proposed stage, and the result was that it did not 6 substantially change the determination of the analysis. 7 MR. O'LAUGHLIN: Having the 1983 data in or out? 8 MR. THABAULT: Having the 1995 data in or out. 9 MR. O'LAUGHLIN: What about having the 1983 data in 10 or out? 11 MR. THABAULT: Since we didn't do that analysis I 12 couldn't tell you whether or not that would change the 13 analysis or not. 14 MR. O'LAUGHLIN: Thank you, Mr. Thabault, I 15 appreciate the time. 16 Thank you, Board Members. 17 C.O. STUBCHAER: Mr. O'Laughlin. 18 Mr. Nomellini. 19 ---oOo--- 20 CROSS-EXAMINATION OF THE DEPARTMENT OF THE INTERIOR 21 BY THE CENTRAL DELTA PARTIES 22 BY DANTE JOHN NOMELLINI 23 MR. NOMELLINI: Dante John Nomellini for Central 24 Delta Parties. 25 I thought I'd start out with the Biological CAPITOL REPORTERS (916) 923-5447 10515 1 Opinion on splittail then go to the Biological Opinion of 2 steelhead and then go to the Biological Opinion on the 3 Delta smelt, but I decided against it. 4 All right. As I gather from your testimony, 5 Mr. Thabault, that the point that you're trying to make 6 today is that it's premature to implement the recirculation 7 plan as outlined by the South Delta Water Agency, because 8 there are a number of concerns that need to be evaluated. 9 Is that correct? 10 MR. THABAULT: That is correct. 11 MR. NOMELLINI: Does this mean that the U.S. Fish and 12 Wildlife Service does not support the recirculation 13 proposal as put forth by the South Delta Water Agency? 14 MR. THABAULT: The Service has not taken an official 15 position on the proposal yet. 16 MR. NOMELLINI: All right. That means U.S. Fish and 17 Wildlife Service does not at this time oppose such a 18 proposal; is that correct? 19 MR. THABAULT: We have not officially opposed the 20 proposal at this time, that is correct. 21 MR. NOMELLINI: Now, in your rebuttal testimony I 22 believe you said that it was a rare occasion for the U.S. 23 Fish and Wildlife Service to support or oppose a particular 24 project. Do you recall that testimony? 25 MR. THABAULT: I believe I said it's a rare occasion CAPITOL REPORTERS (916) 923-5447 10516 1 that we flat-out tell somebody, no, yes. 2 MR. NOMELLINI: How rare is it that you tell somebody 3 that you support their proposal? 4 MR. THABAULT: I have no opinion as to how often we 5 have done that. 6 MR. NOMELLINI: All right. With regard to the 7 recirculation proposal, you stated a number of concerns. I 8 think Mr. Jackson indicated there were five, I think I 9 broke it down into three. The first one you mentioned was 10 imprinting, I believe it was of salmon smolt. 11 Do you recall that testimony? 12 MR. THABAULT: That is one issue, yes. 13 MR. NOMELLINI: All right. With regard to the 14 imprinting of salmon smolt, what is the Service's concern 15 with regard to the recirculation proposal put forth by the 16 South Delta Water Agency? 17 MR. THABAULT: The concern is that via the 18 recirculation proposal a disproportionate amount of water 19 that does not originate from the natal streams would be 20 used to move juvenile salmon out of the San Joaquin basin 21 and, thereby, could disrupt their homing instinct when they 22 come back as adults. 23 MR. NOMELLINI: All right. And in terms of water 24 sources, what water sources would fall in that category of 25 concern? CAPITOL REPORTERS (916) 923-5447 10517 1 MR. THABAULT: The sources of recirculation water? 2 MR. NOMELLINI: Yes. 3 MR. THABAULT: Well, as I understand the concept that 4 water would be as a result of diversion from the export 5 facilities, state and federal export facilities which is a 6 combination of Sacramento River water, certain bay waters 7 and certain east side stream waters that would be 8 commingled in the DMC, or the California Aqueduct, and 9 would then be discharged into the main stem of the San 10 Joaquin. 11 MR. NOMELLINI: So your concern would be that more 12 Sacramento River water would be in the San Joaquin River 13 portion through which the salmon smolts would travel? 14 MR. THABAULT: As one component of the water that was 15 exported, yes. 16 MR. NOMELLINI: Okay. Now that we've focused on the 17 Sacramento River, do you know what portion of the water in 18 the San Joaquin River through which the salmon smolts, San 19 Joaquin salmon smolts travel that is made up of Sacramento 20 River water without recirculation? 21 MR. THABAULT: I couldn't give you a value right now, 22 no. 23 MR. NOMELLINI: All right. Do you know whether or 24 not there's been any evaluation of what the Sacramento 25 River component of the flow in the San Joaquin River would CAPITOL REPORTERS (916) 923-5447 10518 1 be in a year with implementation of the San Joaquin River 2 Agreement? 3 MR. THABAULT: I don't think there's been a specific 4 analysis done. 5 MR. NOMELLINI: Has the U.S. Fish and Wildlife 6 Service taken the position that evaluation of the 7 imprinting impact of the flows expected under the San 8 Joaquin River Agreement should be analyzed prior to a 9 decision on the San Joaquin River Agreement? 10 MR. THABAULT: I don't think we've come to that 11 conclusion. 12 MR. NOMELLINI: Do you know whether or not the U.S. 13 Fish and Wildlife Service has taken a position in support 14 or opposition to the San Joaquin River Agreement? 15 MR. THABAULT: The Service participated in the 16 development of that agreement and signed or initialed a 17 letter supporting that agreement. 18 MR. NOMELLINI: And, in fact, they did so on 19 March 6th, 1998; is that correct? 20 MR. THABAULT: I'm not sure of the exact date. 21 MR. NOMELLINI: All right. Let me show you San 22 Joaquin River Group Authority Exhibit Number 2 and look at 23 Page 3. 24 MR. THABAULT: Yep. It appears that the Service 25 signed the letter on March 6th, 1998. CAPITOL REPORTERS (916) 923-5447 10519 1 MR. NOMELLINI: All right. Is it characteristic of 2 the Fish and Wildlife Service that they would sign a 3 statement of support for an agreement for which the 4 analysis of the impact on imprinting has not been 5 performed? 6 MR. THABAULT: The Service tries to work with 7 agencies and individuals all the time and will sign 8 agreements contingent upon subsequent evaluation and 9 performance of an alternative. 10 MR. NOMELLINI: So if the South Delta Water Agency 11 came to the U.S. Fish and Wildlife Service and asked for 12 their support of the recirculation alternative, is it your 13 testimony that the Fish and Wildlife Service would consider 14 execution of an agreement in support subject to subsequent 15 analysis of the impacts? 16 MR. THABAULT: Theoretically, it's possible, yes. 17 MR. NOMELLINI: Now, with regard to the concern for 18 Sacramento River water being a greater component of San 19 Joaquin River flow with regard to recirculation, are you 20 aware that the 1995 Water Quality Control Plan requires 21 that the Delta cross channel gates be closed from February 22 through May 20th? 23 MR. THABAULT: As well as the winter-run Biological 24 Opinion by National Marine Fishery Service, yes. 25 MR. NOMELLINI: All right. Now, if we were to be CAPITOL REPORTERS (916) 923-5447 10520 1 concerned about a greater proportion of the Sacramento 2 River being a part of the San Joaquin River flow, then, is 3 it your testimony that that greater component would have to 4 come out of storage such as San Luis? 5 MR. THABAULT: I didn't track that entire question, 6 Mr. Nomellini. 7 MR. NOMELLINI: Okay. Let's assume for hypothetical 8 purposes that the cross channel gate is closed and we are 9 considering a recirculation proposal which would take water 10 from the Delta, run it down the Delta-Mendota Canal, 11 discharge it into the Newman Wasteway into the San Joaquin 12 River. 13 All right, with that hypothetical would you expect 14 there to be a greater proportion of Sacramento River water 15 in the San Joaquin River than without such a recirculation 16 operation? 17 MR. THABAULT: Without looking at a set of modeling 18 results such as what DWR uses to evaluate that, I couldn't 19 tell you. 20 MR. NOMELLINI: All right. Would you agree with the 21 cross channel gates closed and pumps operating that a 22 greater proportion of the water being exported by the state 23 and federal pumps would be San Joaquin River water? 24 MR. THABAULT: There's a lot of variables that go 25 into that, Mr. Nomellini, based on total inflow what the CAPITOL REPORTERS (916) 923-5447 10521 1 level of pumping you're talking about is; without some 2 information to assist me in answering that, I couldn't do 3 it. 4 MR. NOMELLINI: All right. Then you haven't 5 concluded, then, that the recirculation proposal by South 6 Delta Water Agency would, in fact, result in a greater 7 proportion of Sacramento River water being in the San 8 Joaquin River at Vernalis? 9 MR. THABAULT: What we concluded is that it is an 10 issue that needs to be evaluated appropriately to make a 11 conclusion. 12 MR. NOMELLINI: Okay. Now, this imprinting potential 13 problem is with regard to salmon; is it not? 14 MR. THABAULT: And possibly steelhead. 15 MR. NOMELLINI: Are steelhead salmon? 16 MR. THABAULT: Steelhead are considered an anadromous 17 fish related to salmon. 18 MR. NOMELLINI: Are they salmonids? 19 MR. THABAULT: Salmonids, yes. 20 MR. NOMELLINI: Salmonids. All right. And this 21 imprintation that takes does place, it take place when the 22 salmon are in egg form? 23 MR. THABAULT: Imprinting is a continual. It may 24 start while they're in egg form, it certainly starts when 25 they come out of the yolk sac and then are fry in the CAPITOL REPORTERS (916) 923-5447 10522 1 river. And it continues as they move down the tributary, 2 it continues as they move down the main stem and it 3 continues all the way until they're in the marine 4 environment. 5 MR. NOMELLINI: All right. With regard to imprinting 6 salmon smolts, is there a degree of imprintation or 7 imprinting that takes place at a greater level at each one 8 of these stages, if you know? 9 MR. THABAULT: I would probably say that imprinting 10 is probably more important in the tributaries, the further 11 out into the estuary they get the more commingled, various 12 constituent elements become, so the emphasis on their natal 13 stream becomes less. 14 MR. NOMELLINI: All right. And you would agree, 15 would you not, that under pre-project conditions -- I mean 16 pre-CVP and SWP, that salmon smolt in the Stanislaus, for 17 example, would encounter water from numerous other 18 tributaries once that smolt reach that San Joaquin River? 19 MR. THABAULT: To varying degrees that would be 20 correct, yes. 21 MR. NOMELLINI: And under pre-project conditions 22 those other waters would be waters of the -- and that's for 23 the same example would be waters of the Tuolumne; would 24 they not? 25 MR. THABAULT: Correct. CAPITOL REPORTERS (916) 923-5447 10523 1 MR. NOMELLINI: Merced? 2 MR. THABAULT: Correct. 3 MR. NOMELLINI: Chowchilla? 4 MR. THABAULT: If it's running. 5 MR. NOMELLINI: Bear Creek? 6 MR. THABAULT: Certainly. 7 MR. NOMELLINI: All right. And, of course, the main 8 stem of the San Joaquin, right? 9 MR. THABAULT: To the extent that there are inflows 10 in the upper San Joaquin, yes. 11 MR. NOMELLINI: All right. And, then, since the 12 projects -- since the CVP has been operating, you would 13 agree, would you not, that Sacramento River of some degree 14 has been imported into the west side of the San Joaquin 15 Valley? 16 MR. THABAULT: I would agree with that. 17 MR. NOMELLINI: And you would agree that some of that 18 Sacramento River water has found its way into the San 19 Joaquin River either as accretions or irrigation return 20 flows, or drainage from tile drains? 21 MR. THABAULT: There's a probability of that, yes. 22 MR. NOMELLINI: So the fish as we find them today in 23 the San Joaquin River, I'm talking about salmon smolt, are 24 encountering an imprinting problem -- I don't want to say 25 "problem," are encountering imprinting to some extent with CAPITOL REPORTERS (916) 923-5447 10524 1 water from the Sacramento River? 2 MR. THABAULT: That may very well be the case, yes. 3 MR. NOMELLINI: Has the U.S. Fish and Wildlife 4 Service analyzed the impact with regard to imprinting with 5 Stanislaus River water being released into the Tuolumne 6 pursuant to the San Joaquin River Agreement? 7 MR. O'LAUGHLIN: Objection. Assumes facts not in 8 evidence. Misstates any prior testimony as well, unless 9 he's making it a hypothetical. 10 C.O. STUBCHAER: Mr. Nomellini. 11 MR. NOMELLINI: I think the facts are clear, but for 12 the purpose of moving forward in a timely fashion I'll make 13 it a hypothetical. 14 C.O. STUBCHAER: All right. 15 MR. NOMELLINI: Let's assume that the San Joaquin 16 River Agreement provides that water that would otherwise 17 flow down the Stanislaus will be, through some mechanism, 18 released into the Tuolumne. Would there, under such a 19 hypothetical, be a potential problem with imprinting of 20 salmon smolt or fry in the Tuolumne? 21 MR. THABAULT: The possibility exists, yes. 22 MR. NOMELLINI: All right. Now, with regard to 23 steelhead, would there be a similar problem with imprinting 24 under that hypothetical, steelhead in the Tuolumne? 25 MR. THABAULT: Possibility exists in that case, yes. CAPITOL REPORTERS (916) 923-5447 10525 1 MR. NOMELLINI: And do you know if any analysis has 2 been made by your service of such a potential impact? 3 MR. THABAULT: I'm unaware of a specific analysis. 4 MR. NOMELLINI: All right. Do you know of such an 5 analysis by anyone of such a potential impact? 6 MR. THABAULT: I'm unaware of any specific analysis 7 from anyone. 8 MR. NOMELLINI: All right. Let's assume for 9 hypothetical purposes that the San Joaquin River Agreement 10 contemplates purchases of as much as 11,000 acre-feet in a 11 year from the San Joaquin River Exchange Contractors. And 12 under such a hypothetical, do you see any concern with 13 regard to imprinting salmon or steelhead by way of the 14 purchase and release of such flow or quantity of water to 15 the San Joaquin River? 16 MR. THABAULT: Based on my prior testimony I would 17 say the possibility exists. 18 MR. NOMELLINI: All right. Even not based on your 19 prior testimony, but based on your expertise you would 20 conclude that such a possibility exists; would you not? 21 MR. THABAULT: The possibility may exist. 22 MR. NOMELLINI: You're not unhappy with your prior 23 testimony, are you? 24 MR. THABAULT: Nope. 25 MR. NOMELLINI: Do you know whether or not any agency CAPITOL REPORTERS (916) 923-5447 10526 1 has studied the problem associated with imprinting salmon 2 and steelhead by way of flows of water coming from the San 3 Joaquin River Exchange Contractors? 4 MR. THABAULT: I'm unaware of a specific study to 5 evaluate that. 6 MR. NOMELLINI: All right. Second category that I 7 marked down was entrainment. And I listed, and I believe 8 you testified, if I'm wrong tell me, that you talked about 9 salmon, steelhead, Sacramento splittail, long fin, I think 10 those are smelt, and Delta smelt. 11 Am I correct that the Service has concern with 12 regard to entrainment under the recirculation proposal with 13 regard to each of those species that I mentioned? 14 MR. THABAULT: I believe my testimony was to those 15 species in general. I didn't really specify whether it was 16 for entrainment or not. 17 MR. NOMELLINI: Okay. Is there an imprint problem 18 associated with -- well, first of all, did I list all the 19 species correctly: Salmon, steelhead, Sacramento 20 splittail, long-fin smelt and Delta smelt? 21 MR. THABAULT: I believe that encompasses the list I 22 discussed, yes. 23 MR. NOMELLINI: Other than for salmon and steelhead 24 is there an imprinting problem associated with any of the 25 other species? CAPITOL REPORTERS (916) 923-5447 10527 1 MR. THABAULT: I don't think we have any information 2 regarding the smelt species as to what causes them to go 3 where they do. I don't believe we have any information 4 necessarily on splittail either. 5 MR. NOMELLINI: And when you referenced salmon, were 6 you covering winter-run salmon as well as spring-run salmon 7 and fall-run salmon and late fall-run salmon? 8 MR. THABAULT: Yes. 9 MR. NOMELLINI: Did I leave any out? 10 MR. THABAULT: I think you got them all. 11 MR. NOMELLINI: Okay. With regard to entrainment, of 12 the species that we talked about does the Service have 13 concern with regard to a particular number of these species 14 being entrained under the recirculation proposal, or is it 15 with regard to all of these species? 16 MR. THABAULT: We haven't particularly come up with 17 any particular threshold value for entrainment that we're 18 concerned about, no. 19 MR. NOMELLINI: All right. Are you concerned about 20 each of these species being entrained in the SWP and CVP 21 export pumps under the recirculation proposal by South 22 Delta Water Agency? 23 MR. THABAULT: I believe what we're concerned about 24 is the combination of effects that the proposal may have, 25 not just entrainment. CAPITOL REPORTERS (916) 923-5447 10528 1 MR. NOMELLINI: All right. Are there any of these 2 species that you wouldn't be concerned with entrainment 3 related to the South Delta Water Agency recirculation 4 proposal? 5 MR. THABAULT: There are no species on that list that 6 I would discard right now that we're not concerned with. 7 MR. NOMELLINI: Okay. With regard to entrainment? 8 MR. THABAULT: With regard to entrainment. 9 MR. NOMELLINI: Now, when you talk about the overall 10 impact, you had indicated in your direct testimony that 11 your concern was during the pulse flow. Do you agree with 12 that characterization of your testimony? 13 MR. THABAULT: When I evaluated South Delta Water 14 Agency's written testimony I was focused more or less on 15 the pulse flow period, that is correct. 16 MR. NOMELLINI: You would agree, would you not, that 17 any analysis upon which one would judge the South Delta 18 recirculation proposal versus San Joaquin River Agreement 19 or any other proposal should focus on a longer period than 20 the 30-day pulse flow? 21 MR. THABAULT: I would agree that any analysis must 22 consider all the relevant factors, yes. 23 MR. NOMELLINI: Okay. And you would agree that a 24 longer period than the 30-day pulse is an appropriate 25 period to analyze, would you not? CAPITOL REPORTERS (916) 923-5447 10529 1 MR. THABAULT: In the context of the proposal if 2 there are direct and indirect effects outside the pulse 3 flow period we would have to evaluate those, yes. 4 MR. NOMELLINI: Did the Fish and Wildlife Service, to 5 your knowledge, analyze the impact of the San Joaquin River 6 Agreement on summertime flows in the Stanislaus, Tuolumne 7 and Merced? 8 MR. THABAULT: We haven't evaluated the summertime 9 flows to the best of my knowledge. 10 MR. NOMELLINI: Are summertime flows important to the 11 preservation and enhancement of steelhead? 12 MR. THABAULT: You'd have to be more specific as to 13 where. 14 MR. NOMELLINI: In the Stanislaus, Tuolumne and 15 Merced. 16 MR. O'LAUGHLIN: Objection. Assumes facts not in 17 evidence. There's been no evidence presented that there 18 are steelhead in either the Stanislaus, Tuolumne or Merced. 19 MR. NOMELLINI: No. No. No, not true at all. 20 C.O. STUBCHAER: Mr. Nomellini, without testifying 21 you care to respond to the -- 22 MR. NOMELLINI: Well, he's testifying. There is in 23 the record the ruling -- and I put it in, I forget what my 24 exhibit number was -- the ruling by the National Marine 25 Fishery Service on the steelhead enlisting them as CAPITOL REPORTERS (916) 923-5447 10530 1 threatened. Clearly indicating in there, and I think we 2 put it in through the testimony as well, that the 3 Stanislaus and Merced and Tuolumne have steelhead and their 4 part of the ESU, which is a -- 5 C.O. BROWN: I remember. 6 MR. NOMELLINI: -- Ecologically Significant Unit. 7 MR. O'LAUGHLIN: Well, I would agree they are part of 8 the ESU, but that document did not specifically find 9 steelhead in either the Merced or the Tuolumne River. And 10 it said that there were indications of steelhead in the 11 Stanislaus River. So there is no evidence in the record 12 that there are steelhead specifically within those river 13 systems. 14 C.O. STUBCHAER: Mr. Herrick. 15 MR. HERRICK: The document Central Delta put in 16 speaks for itself. But my recollection of the reading it 17 clearly says that populations are believed to exist in 18 those three tributaries and in the main stem. 19 C.O. STUBCHAER: Could we address this, 20 Mr. Nomellini, by making it a hypothetical assuming that 21 they exist? 22 MR. O'LAUGHLIN: It's not only that, but one other 23 objection for the record is the fact that they put that 24 document into the record, but the document is a hearsay 25 document. No one has testified to that document. He's CAPITOL REPORTERS (916) 923-5447 10531 1 asked questions about that document, but no one has 2 testified as to the findings in the steelhead listing. So 3 it's hearsay. 4 C.O. STUBCHAER: Mr. Nomellini. 5 MR. NOMELLINI: First, I think it's clear and I think 6 Mr. O'Laughlin has admitted that this document is admitted 7 into evidence. The weight to be given, I think, is a 8 question, but its content is certainly there as part of a 9 public record which is evidence as to the truth of the 10 matter stated in the document. And it clearly says, 11 quote -- quote, before I make it a hypothetical -- 12 C.O. STUBCHAER: Before you what? 13 MR. NOMELLINI: Before I make the question a 14 hypothetical, I'd like to find the language in here that 15 clearly stated the basis that they had. 16 C.O. BROWN: Do you want to go off the record for a 17 minute? 18 MR. NOMELLINI: Can I take a break -- 19 C.O. STUBCHAER: We'll be off the record. 20 MR. NOMELLINI: Yeah, just for a second, I want to 21 get my copy of the exhibit. 22 C.O. STUBCHAER: Sure. 23 (Off the record from 1:49 p.m. to 1:52 p.m.) 24 C.O. STUBCHAER: Please, come back to order. 25 MR. NOMELLINI: All right. CAPITOL REPORTERS (916) 923-5447 10532 1 C.O. STUBCHAER: Mr. Nomellini. 2 MR. NOMELLINI: With regard -- I'm sorry for the 3 delay -- Central Delta Water Agency 28, it's Federal 4 Register Page Number 13353, and I'm going to read the 5 portion that I think is relevant here. 6 (Reading): 7 "Recent observations resulting from monitoring 8 efforts for chinook salmon documents steelhead 9 juveniles and/or adults in the Lower San Joaquin 10 River, the Stanislaus River, the Tuolumne River 11 and the Merced River. 12 These steelhead seem to represent natural 13 production since hatchery releases in recent 14 years have only been made into the Mokelumne 15 River," period. 16 That was the language I was thinking of in the 17 final rule represented by Central Delta Water Agency 28. 18 C.O. STUBCHAER: And the status of that document, I 19 think you said it's a public document, but it may not have 20 been testified to; is that correct? 21 MR. NOMELLINI: Well, I had testimony in there with 22 one of the witnesses who was here who was familiar with it 23 and acknowledged the existence of it. I don't think the 24 person was the one that did the study. And there was no 25 objection to the introduction into evidence. CAPITOL REPORTERS (916) 923-5447 10533 1 C.O. STUBCHAER: So as you said it's -- and as always 2 the case -- the weight that the Board decides to give to it 3 is up to us. 4 MR. NOMELLINI: Right. But it's not a fact not in 5 evidence, is all I'm trying to make. 6 C.O. STUBCHAER: All right. 7 MR. NOMELLINI: It may not be the weightiest fact, if 8 you want to have these people come and testify directly, 9 perhaps, you could give it more weight, but it is a fact in 10 evidence. 11 C.O. STUBCHAER: Not as rebuttal in Phase II-A, I 12 don't think I want them to come and testify. 13 MR. BIRMINGHAM: I appreciate the opportunity. 14 C.O. STUBCHAER: Mr. Nomellini, before we get back to 15 the question, let's get an update on the scheduling issue, 16 if that's all right. 17 Mr. Garner. 18 MR. GARNER: Dr. Hanson was able to rearrange his 19 scheduling tomorrow so he will be here tomorrow morning at 20 9:00 o'clock. 21 C.O. STUBCHAER: So he'll be here at 9:00 a.m. 22 MR. GARNER: Yes. 23 C.O. STUBCHAER: Thank you, Mr. Garner, we really 24 appreciate that. And then the panel will be here on 25 Thursday, so that should enable us to complete the rebuttal CAPITOL REPORTERS (916) 923-5447 10534 1 on Thursday and then start Phase VI on March 9th. 2 MR. BIRMINGHAM: And could we have a reaffirmation of 3 the order of Phase VI, it's going to be Department of 4 Interior with DWR Fish and Game and then Westlands and the 5 Authority? 6 C.O. STUBCHAER: I'll read you what I got off the web 7 site myself, so it's subject to correction by staff, but 8 it's the: Department of Interior, Department of Water 9 Resources, Department of Fish and Game, San Luis and 10 Delta-Mendota Water Authority, Westlands Water District, 11 Environmental Defense Fund, County of Trinity and the 12 Tri-Valley, Kern, Tulare, Pixley I.D.'s, et al. 13 Does that check, Ms. Whitney? 14 MS. WHITNEY: Yep. 15 C.O. STUBCHAER: Okay. Now, two people rose. Is 16 this an objection? 17 MR. O'LAUGHLIN: No. 18 C.O. STUBCHAER: Mr. O'Laughlin. 19 MR. O'LAUGHLIN: One clarification. We were 20 expecting to have policy statements for Phase II-A. We had 21 scheduled those policy statements for March 9th. So we may 22 have to have those policy statements read on March 9th. 23 We have scheduled four or five policy people. 24 Their schedules, truly, can't be changed. And it was hard 25 enough to get some of them here on the 9th. So they will CAPITOL REPORTERS (916) 923-5447 10535 1 take all of probably 20 or 30 minutes on the 9th. 2 C.O. STUBCHAER: All right. I forget, who's making 3 these policy statements? 4 MR. O'LAUGHLIN: My understanding is Mr. Short, 5 Mr. Tim Quinn, Mr. James Lecky, Mr. Spears and Mr. Kirk 6 Rogers. And I don't know if those particular persons from 7 those particular agencies are going to make those 8 statements, but if it's not them it's going to be the 9 assistants or acting regional directors or assistant 10 managers. I don't know yet. 11 C.O. STUBCHAER: We'll get back to you. Is that -- 12 is your question that's pending or -- all right. Go ahead, 13 on the scheduling issue. 14 MR. NOMELLINI: Well, this idea of parties who are 15 presenting cases in chief coming in and presenting policy 16 statements late in the game, I don't think is the intent of 17 the policy statement. 18 MR. O'LAUGHLIN: Well, I can address -- 19 C.O. STUBCHAER: Wait just a moment. Mr. Herrick was 20 next. 21 MR. NOMELLINI: Because we had, you know, the 22 opportunity for opening argument for those people 23 presenting evidence, and those not presenting evidence 24 could present the policy statement. 25 C.O. STUBCHAER: Mr. Herrick. CAPITOL REPORTERS (916) 923-5447 10536 1 MR. HERRICK: That was my question. I did not 2 realize that the Board was allowing policy statements by 3 people who only submit rebuttal cases and then after their 4 rebuttal case and I think that's a different rule than we 5 had before. 6 C.O. STUBCHAER: And, Mr. Brandt. 7 MR. BRANDT: There are at least a couple of examples 8 where -- I'll let Mr. O'Laughlin speak to some of these -- 9 but in the case of Mr. Lecky, National Marine Fishery 10 Service is not a party to this hearing. And it would just 11 be a policy statement. They have not had an opportunity to 12 participate in this hearing, they have not participated in 13 this hearing. And so they -- it would be a policy 14 statement from them and that would be it. 15 And from the other perspective, from our 16 perspective it is, you know, it will be a policy statement 17 that will be consistent with everything that's been 18 presented up to now. It's not going into the record, it's 19 not part of evidence, it's just a policy statement. 20 C.O. STUBCHAER: Well, policy statements go into the 21 record. 22 MR. BRANDT: Right, but it's not going to go into the 23 evidentiary record. 24 C.O. BROWN: Mr. Chairman? 25 C.O. STUBCHAER: All right, Mr. Brown. CAPITOL REPORTERS (916) 923-5447 10537 1 C.O. BROWN: How about Mr. Rogers? 2 MR. BRANDT: Right, Mr. Rogers, but that's what I'm 3 saying, for the additional -- for Mr. Rogers and 4 Mr. Spears, who have not -- they at that level have not 5 been participating in this hearing. And so it's just an 6 opportunity for them to make an appearance to comment on 7 something that they have already been -- their 8 representatives, including me, have been advocating which 9 includes the -- which is the San Joaquin River Agreement. 10 C.O. STUBCHAER: Mr. O'Laughlin, then Mr. Godwin, 11 then I'm going to call on staff for some comments. 12 MR. O'LAUGHLIN: Well, and believe me we've been 13 trying on this one, but it's been very clear, in fact, I 14 remember your predecessor made two rulings on this: 15 That policy statements could be made at any time 16 during the phase. And, in fact, specifically I remember 17 South Delta Water Agency made a policy statement after the 18 opening statements had been made. 19 So what I'm -- I thought the rule had been 20 established in this hearing that policy statements could be 21 made at any time. And that is why we're calling our policy 22 people back on March 9th to make policy statements at that 23 time due to their availability. 24 So I don't know if the rule is going to be 25 changed, but if it is I need to know, because certain CAPITOL REPORTERS (916) 923-5447 10538 1 parties have not put on their -- 2 MR. NOMELLINI: That isn't the rule. 3 C.O. STUBCHAER: Mr. Godwin. 4 MR. GODWIN: I would like to add, too, that 5 Ms. Leidigh has stated before that policy statements can be 6 made at any time and it hasn't been specific as to where in 7 the phase you could make the policy statement. 8 C.O. STUBCHAER: Ms. Leidigh. 9 C.O. BROWN: Mr. Herrick first? 10 C.O. STUBCHAER: No. They've all had their say. 11 I'll hear from staff. We can get back to them. 12 MS. LEIDIGH: There have been a number of things said 13 about policy statements early on in the proceeding. We 14 had, of course, the hearing notice which said that there 15 could be policy statements by interested persons who are 16 not participating as parties. 17 Now, that's how we define the policy statement, is 18 by somebody who is not a party. We've also allowed opening 19 statements by parties, which can contain policy content. 20 But policy statements, per se, have been limited to 21 non-parties. 22 Now, we've had some additional letters from time 23 to time and we've talked about scheduling and so on, but 24 generally that scheduling has been at the beginning of a 25 phase, not at the end of a phase. So I do think it is CAPITOL REPORTERS (916) 923-5447 10539 1 unusual to schedule something at the end of the phase, and 2 this is the first that I've heard about this. 3 C.O. STUBCHAER: I have a question before we get back 4 to you folks, we're going to have a dialogue with our 5 counsel. 6 It's my recollection that policy statements were 7 allowed at the beginning of phases even though they were 8 not necessarily pertinent to that phase. Is that true? 9 MS. LEIDIGH: That's true. There's been two kinds of 10 policy statements: A policy statement that's pertinent to 11 the phase and a general policy statement. At the same time 12 those policy statements have been by non-parties, opening 13 statements by parties with policy content. 14 C.O. STUBCHAER: Well, I suppose we could open Phase 15 VI by hearing policy statements in the same manner we did 16 in some of the other phases. 17 MS. LEIDIGH: That's true. 18 MR. BIRMINGHAM: Mr. Stubchaer? 19 C.O. STUBCHAER: Wait. I'm going to go in a certain 20 order here. Mr. Herrick was next. 21 MR. HERRICK: Thank you, Mr. Chairman. I'm not 22 trying to delay these proceedings here, but you know, let's 23 call a spade a spade. The parties who decided not to put 24 on cases in chief and put all their stuff on through 25 rebuttal tell us a couple of days before the phase ends, CAPITOL REPORTERS (916) 923-5447 10540 1 and by the way they're going to have a whole bunch of 2 people giving policy statements. 3 Now, clearly, they're just trying to do closing 4 argument. Every phase is opened with the Chairman asking 5 for opening statements by parties giving a case in chief 6 that aren't policy statements, this is just a party's 7 attempt to manipulate the procedures here to their benefit 8 and I don't think it's fair. 9 The Chair certainly has the ability to allow them 10 to make their policy statements at anytime, but that's not 11 fair. We were told that we would get a chance to rehash 12 all this in Phase II-A and it didn't come up. And I don't 13 think this is a fair way to run it if we allow this to 14 happen. 15 C.O. STUBCHAER: Mr. Nomellini. 16 MR. NOMELLINI: Yeah, I don't have any problem with 17 policy statements by people who aren't the principal movers 18 and shakers in presenting cases in chief coming in at 19 various times during the phase. I think if we get a 20 legislator or something like that what want to come and 21 give you a policy statement, you're going to do it. 22 My problem is when we take Allen Short, who is a 23 principal for the Modesto Irrigation District, one of the 24 parties in here that was part of the group that presented a 25 case in chief, I mean he's going to come in and make CAPITOL REPORTERS (916) 923-5447 10541 1 another argument. 2 If you want to allow it, let us all make an oral 3 argument, you know, if you want to do it. But I mean a 4 true policy statement from somebody that's unrelated and 5 not a party presenting a case, a legislator or something 6 like that, I'd say any time they come in, but I don't think 7 it's fair to do it this way unless you let us all do it. 8 C.O. STUBCHAER: Time out a minute. 9 (Off the record from 2:04 p.m. to 2:05 p.m.) 10 C.O. STUBCHAER: Mr. O'Laughlin. 11 MR. O'LAUGHLIN: Well, I hate to correct your counsel 12 but she's wrong. She has made two previous statements in 13 the record -- and I will go ahead and find them and bring 14 them in tomorrow -- 15 MS. LEIDIGH: You better, because they're not there. 16 C.O. STUBCHAER: Let's not be argumentative. 17 MR. O'LAUGHLIN: Okay. Well, the problem is that 18 it's policy statements at any time, and I remember 19 specifically in the record is that Mr. Herrick got up 20 during Phase II and started making a policy statement. And 21 we couldn't tell if it was a policy statement or whether or 22 not it was an opening statement. And Counsel said policy 23 statements could be made at any time, not only that-- 24 MS. LEIDIGH: No. 25 MR. O'LAUGHLIN: -- the City of Stockton has made a CAPITOL REPORTERS (916) 923-5447 10542 1 policy statement when they've been a party in interest. 2 And there's other parties that have done that. We've 3 allowed policy statements in this proceeding at any time. 4 I also take objection to the point that we are 5 sandbagging. We are not sandbagging anybody. We have had 6 a scheduling problem. We have scheduled our policy people 7 at the most available time, they're available at the end. 8 It is not a summation or an oral argument. 9 They have not been here for the proceedings. They 10 will not testify about the legal requirements and will not 11 testify about the facts, but they will make policy 12 statements regarding the San Joaquin River Agreement. So I 13 take objection to the statements by South Delta Water 14 Agency. 15 Thirdly, if South Delta Water Agency continues to 16 say that everything is unfair, well, I can't help that. 17 These proceedings have been going on for some time. He's 18 known about the San Joaquin River Agreement. He's known 19 about the policy people. If he wanted to call my people 20 and have them testify, he could have done so. They are 21 coming here strictly to make five-minute policy statements, 22 there will be four or five of them, and we will address 23 that at that time. 24 C.O. STUBCHAER: Mr. Godwin. 25 MR. GODWIN: That's fine, nothing for me. CAPITOL REPORTERS (916) 923-5447 10543 1 C.O. STUBCHAER: Mr. Jackson. 2 MR. NOMELLINI: I'll take his spot. 3 MR. GODWIN: No. 4 MR. JACKSON: Yes. It seems to me that clearly 5 Mr. Spears and Mr. Short as parties to the San Joaquin 6 River Agreement are parties. And that they've had 7 testimony -- both of the parties have had testimony given 8 here in this phase of the case. And if they're going to 9 testify, they should be subject to cross-examination so 10 that we can compare that to what they say now with what 11 their folks testified to in this hearing. 12 The problem with the policy statement at the end 13 is that it -- by high ranking people without being subject 14 to cross-examination -- is it's either a closing argument 15 or it is -- can be completely inconsistent with the 16 testimony of the actual witnesses of the party. 17 So I don't have the same problem with Mr. Lecky, 18 since National Marine Fishery Service has been sort of 19 conspicuous by their absence and they may want to talk 20 about policy, but in reality, clearly, Mr. Spears and 21 Mr. Short could have been witnesses and it would not be 22 appropriate for them to make a closing argument. 23 C.O. STUBCHAER: Well, Mr. Jackson, I don't think we 24 want to have policy statements cross-examined, because that 25 would give them the status of evidence and they're not CAPITOL REPORTERS (916) 923-5447 10544 1 evidence. And they are not facts that the Board can 2 consider in making its decision since they are not 3 evidence, but they're viewpoints of the parties. As you 4 know, I don't think we want to cross-examine policy 5 statements. 6 I understand the concern that many have expressed 7 about, in effect, getting the last word in on policy 8 statements after everyone else has spoken. We're going to 9 take a time-out for a minute and have a consultation. 10 (Off the record from 2:08 p.m. to 2:09 p.m.) 11 C.O. STUBCHAER: Come back to order. The closing 12 statements for Phase II-A are not limited to legal briefs, 13 they can include policy statements, letters, policy 14 statements. So policy statements at this phase of II-A can 15 be submitted as part of the closing arguments and closing 16 briefs. 17 And, alternatively, we will allow policy 18 statements at the beginning of Phase VI. And we have not 19 limited policy statements to the -- subject, strictly to 20 the subject of the phase in the past. 21 And so that's the ruling. We will not permit 22 policy statements after the rebuttal on Phase II-A, but the 23 policy statements may be gotten in either the two ways I 24 just discussed. Any questions? All right. 25 You want to proceed with your -- do you remember CAPITOL REPORTERS (916) 923-5447 10545 1 which question was pending? 2 MR. NOMELLINI: I'm not sure I clearly understand the 3 ruling, but I guess the policy -- 4 C.O. STUBCHAER: What isn't clear? 5 MR. NOMELLINI: A policy statement with regard to the 6 subject matter of II-A can be made at the beginning of VI 7 by any party? 8 C.O. STUBCHAER: Yes. 9 MR. NOMELLINI: Regardless of whether we're 10 presenting evidence, or not presenting evidence, or what 11 have you? 12 C.O. STUBCHAER: Yes, or it can be submitted as part 13 of the closing brief. As I said, the closing brief is not 14 limited to legal argument, it can include policy statements 15 and other argument. 16 MR. NOMELLINI: All right. I think my question was 17 of the witness: 18 Are you aware of any evaluation of the impact on 19 steelhead due to reduction in summertime flows on the 20 Stanislaus, Tuolumne or Merced as related to the San 21 Joaquin River Agreement? 22 MR. O'LAUGHLIN: Objection -- 23 MR. BIRMINGHAM: Objection. 24 MR. O'LAUGHLIN: -- assumes facts not in evidence. 25 It assumes that -- and I'll state what the assumption is. CAPITOL REPORTERS (916) 923-5447 10546 1 The question asks the witness to assume that flows 2 on the Stanislaus, Tuolumne and Merced River are reduced in 3 the summertime due to the San Joaquin River Agreement. 4 There's been absolutely no testimony to that effect. 5 C.O. STUBCHAER: Excuse me a second. 6 C.O. BROWN: I didn't hear that. Have him re-ask the 7 question. 8 C.O. STUBCHAER: I have to confess, I was writing a 9 note on the previous discussion. I missed the question, 10 Mr. Nomellini. Could you either rephrase the question or 11 satisfy the objection, or re-ask the question so I can hear 12 it? 13 MR. BIRMINGHAM: I'm going to object on the grounds 14 that it goes beyond the scope of the -- 15 MR. NOMELLINI: Oh, boy. 16 C.O. STUBCHAER: Mr. Birmingham. 17 MR. BIRMINGHAM: I was compelled by the Chair to tie 18 every single one of my questions to the direct examination 19 on rebuttal, in particular, the recirculation plan. And I 20 know that Mr. Nomellini is certainly as capable as I am and 21 he should be put to the same test. 22 C.O. STUBCHAER: Mr. Birmingham, I don't think you 23 were compelled, you were requested to. 24 C.O. BROWN: Good point. 25 C.O. STUBCHAER: Mr. Nomellini. CAPITOL REPORTERS (916) 923-5447 10547 1 MR. NOMELLINI: In terms of the facts in evidence, if 2 you refer to Volume IIII of the Draft Environmental Impact 3 Report -- 4 C.O. BROWN: Mr. Chairman? 5 C.O. STUBCHAER: Mr. Brown. 6 C.O. BROWN: Rarely do Mr. Stubchaer and I miss a 7 question together, but we were both relishing in the 8 decision that was just made previously to that. 9 MR. NOMELLINI: Okay. All right. Why don't we have 10 it read back. I'm not sure I could repeat it exactly, if 11 that's permissible. 12 C.O. BROWN: Why don't we have it read back. 13 (Whereupon the question was read back by the Reporter.) 14 MR. BRANDT: In that case I'll -- 15 THE COURT REPORTER: Hold on. Hold on. 16 C.O. STUBCHAER: Okay? 17 THE COURT REPORTER: Yes, thank you. 18 MR. NOMELLINI: Do you want to hear that and then 19 I'll tell you -- 20 C.O. STUBCHAER: No, I remember the objection. Go 21 ahead with your answer to the objection. 22 MR. NOMELLINI: Okay. In the evidence is Staff 23 Exhibit -- and I don't know the number -- but it's Volume 24 IIII of the Draft Environmental Impact Report. And Table 25 6.27 which talks about the Merced River -- and you can look CAPITOL REPORTERS (916) 923-5447 10548 1 at the Tuolumne as well but this is my example -- shows 2 that Alternative 8, which is the San Joaquin River 3 Agreement, in comparison to Alternative 1, which is the 4 base case, has a minus 43 cubic feet in June and a minus 12 5 in September for the 73-year period average. 6 And for the critical period average it shows a 7 minus 75 cubic feet per second for June. So there is 8 evidence, and there's evidence like that on the Tuolumne 9 that shows that there are reductions based on this study in 10 summertime flows with the San Joaquin River Agreement. 11 C.O. STUBCHAER: Mr. O'Laughlin. 12 MR. O'LAUGHLIN: Let's see, summer starts June, what 13 is it, 20th or 21st? So are you talking about the last ten 14 days only in regards to your question? And not only that 15 the other problem with the question is that it includes the 16 Stanislaus. And I don't think there are any reductions on 17 the Stanislaus River. And it's compound. 18 He said "summertime flows." Summertime flows 19 implies in the record, "June, July and August." So if he 20 wants to limit his question to June, I think there probably 21 is some evidence in the record of reduction of flows in 22 those months, but that wasn't the question that was asked. 23 C.O. STUBCHAER: Mr. Brandt. 24 MR. BRANDT: And my objection is in any case it is 25 beyond the scope of testimony. He is here testifying about CAPITOL REPORTERS (916) 923-5447 10549 1 recirculation, he is not here testifying about the San 2 Joaquin River Agreement and those issues. 3 MR. NOMELLINI: He talked about -- you want me next? 4 C.O. STUBCHAER: Well, Mr. Herrick then you. 5 MR. HERRICK: Besides Mr. Hildebrand's constant 6 description of decrease in flows being in evidence, Table 7 6.24 shows decreases in August for the Stanislaus. There's 8 similar things in June for the Merced. Again, the tables 9 have both a critical in 73-year averages. So if you pick 10 the different tables, there's certainly decreases in summer 11 under all three tributaries besides the main stem of the 12 San Joaquin. 13 C.O. STUBCHAER: All right. I think there is 14 evidence in the record. 15 Your objection, Mr. Brandt, has to do with the -- 16 MR. BRANDT: With the scope of the rebuttal, it's 17 beyond the scope of the rebuttal. 18 C.O. STUBCHAER: And we did permit previous 19 questioners to go into the San Joaquin River Agreement and 20 I will permit this question. 21 MR. THABAULT: To the best of my knowledge the 22 Service has not conducted an evaluation of reductions in 23 summertime flows on the steelhead. 24 MR. NOMELLINI: All right. In your testimony you 25 talked about contaminants being a concern with the CAPITOL REPORTERS (916) 923-5447 10550 1 recirculation proposal of the South Delta Water Agency; is 2 that correct? 3 MR. THABAULT: That's a possibility, yes. 4 MR. NOMELLINI: Are there specific contaminants of 5 concern to the Service with regard to the South Delta Water 6 Agency recirculation proposal? 7 MR. THABAULT: My understanding is that most of the 8 contaminants associated with the Newman Wasteway are 9 pesticides. 10 MR. NOMELLINI: Do you know whether or not there are 11 any pesticides in the San Joaquin River that reach Vernalis 12 under present conditions? 13 MR. THABAULT: I'm sure there are. 14 MR. NOMELLINI: Has the Service made any comparison 15 of what they believe to be the potential contaminants that 16 would come from the Newman Wasteway, or flow through that 17 wasteway with the pesticides already existing in the San 18 Joaquin River? 19 MR. THABAULT: We have not done that evaluation, but, 20 certainly, believe it would be appropriate to do so. 21 MR. NOMELLINI: All right. And with regard to the 22 water from the San Joaquin River Exchange Contractors that 23 would be released as a part of the San Joaquin River 24 Agreement, does the Service have any concern with regard to 25 the contaminants that could be in such water? CAPITOL REPORTERS (916) 923-5447 10551 1 MR. THABAULT: Right now I am unaware as to where the 2 location of such a release would take place associated with 3 that agreement, so I don't have an answer for you. 4 MR. NOMELLINI: Well, if you find out, tell all of us 5 because we haven't heard either. 6 But you haven't -- the Service has not analyzed 7 the contaminant potential of water provided from the San 8 Joaquin River Exchange Contractors by way of the San 9 Joaquin River Agreement, has it? 10 MR. SEXTON: Objection, asked and answered. And 11 Mr. Nomellini really ought not beg the witness for an 12 answer. 13 C.O. STUBCHAER: Well, I agree with your latter 14 statement, but I think it has been asked and answered, 15 Mr. Nomellini. 16 MR. NOMELLINI: I try to get an answer any way I can, 17 you know. 18 C.O. STUBCHAER: Sure. 19 MR. NOMELLINI: It's cross-examination, don't limit 20 me. 21 C.O. STUBCHAER: That wasn't a ruling, that was just 22 a comment. 23 MR. NOMELLINI: All right. The answer is still on 24 the record, right? 25 C.O. STUBCHAER: Right. CAPITOL REPORTERS (916) 923-5447 10552 1 MR. NOMELLINI: With regard to the imprinting, you 2 testified that the stray that would occur in salmon would 3 occur some three years after the smolts move out of the San 4 Joaquin River; is that correct? 5 MR. THABAULT: Yeah. The imprinting takes place as 6 juveniles, which gives those fish where to go when they 7 come back as adults. So the stray would be associated with 8 the return as adults, not going back necessarily to the 9 place of origin. 10 MR. NOMELLINI: With regard to salmon returning -- 11 well, strike that. 12 With regard to adult salmon found migrating into 13 the San Joaquin River system, has there been a straying 14 problem, historically? 15 MR. THABAULT: There have been some instances of 16 straying on the San Joaquin River into Mud and Salt 17 Sloughs. I have no specific knowledge of some of the 18 hatchery tags and to what percentage of straying from the 19 various tributaries has been. I don't have a number of 20 percentage. 21 MR. NOMELLINI: When you say "straying into Salt and 22 Mud Slough," does the Service know where those particular 23 salmon were supposed to go? 24 MR. THABAULT: They could have been targeting any of 25 the tributaries on the system, I suppose. If they're that CAPITOL REPORTERS (916) 923-5447 10553 1 far in the system I would presume they were headed for the 2 Merced. 3 MR. NOMELLINI: Is it likely that under, 4 hypothetically, perfect conditions there would be no strays 5 of returning salmon? 6 MR. THABAULT: It would be highly unlikely. 7 MR. NOMELLINI: So we could expect some straying of 8 salmon no matter what the conditions; is that your 9 testimony? 10 MR. THABAULT: There is some natural straying among 11 salmonids, I could not tell you what the percentage is 12 though. 13 MR. NOMELLINI: When we talk about the straying of 14 salmon in Salt and Mud Slough, is it your testimony that 15 such straying was not the product of the natural straying 16 that you just testified about? 17 MR. THABAULT: Yes. 18 MR. NOMELLINI: Okay. And how did you make that 19 determination -- did the Service make such a determination? 20 MR. THABAULT: Part of this is based on Fish and Game 21 analysis, but at that time there were relatively low flows 22 in the Merced relative to inflows that were coming in to 23 those two particular tributaries to the San Joaquin and it 24 was creating a false attraction based on flow. 25 MR. NOMELLINI: Okay. You would agree, would you CAPITOL REPORTERS (916) 923-5447 10554 1 not, that we don't know as a fact that that was not a 2 natural straying occurrence; would you agree that far? 3 MR. THABAULT: It may not necessarily be a fact. It 4 is my biological opinion. 5 MR. NOMELLINI: Okay. It's your biological opinion 6 weighing heavily on the flow conditions at the time; is 7 that what you're testifying to? 8 MR. THABAULT: It certainly was a large factor in the 9 instance I'm referring to, yes. 10 MR. NOMELLINI: All right. Now, have any measures 11 been taken to prevent the straying of salmon into Salt and 12 Mud Slough? 13 MR. THABAULT: I believe there have been some actions 14 that have been implemented. 15 MR. NOMELLINI: And what have those actions been? 16 MR. THABAULT: Some of it has been in relationship to 17 flow in the Merced River. There was an experimental 18 electrical barrier that was put in the main stem of the San 19 Joaquin to provide a behavioral barrier to keep those fish 20 from going into Mud and Salt Sloughs. I'm unaware of any 21 specific flow management issues at Mud and Salt Sloughs to 22 know if they've actually reduced flows during the fall time 23 period to try to minimize that stray. 24 MR. NOMELLINI: Have you ever heard of a fence or 25 screen being used to prevent salmon from migrating upstream CAPITOL REPORTERS (916) 923-5447 10555 1 of the Merced? 2 MR. THABAULT: I'm unaware of a positive barrier 3 across the river to prevent them from going upstream. 4 MR. NOMELLINI: Okay. So the only barrier that you 5 know about is the electrical barrier? 6 MR. THABAULT: That's correct. 7 MR. NOMELLINI: Do you know who installed the 8 barrier? 9 MR. THABAULT: I don't recall who was the lead agency 10 on that. 11 MR. NOMELLINI: Did the Fish and Wildlife Service 12 grant approval for such a barrier? 13 MR. THABAULT: I don't think we had any approval or 14 disapproval authority over that at the time. 15 MR. NOMELLINI: Do you know when it was installed? 16 MR. THABAULT: This would have been in the early 17 '90s. I don't know specifically what year. 18 MR. NOMELLINI: Is such a barrier, electrical 19 barrier, installed regularly since -- or has it been 20 installed regularly since the '90s? 21 MR. THABAULT: I have not been following that 22 particular project, so I couldn't tell you if they continue 23 to install that now or not. 24 MR. NOMELLINI: You indicated you didn't know who 25 installed the barrier. Do you know whether or not a CAPITOL REPORTERS (916) 923-5447 10556 1 federal agency has funded the installation of such a 2 barrier? 3 MR. THABAULT: I am unaware of any federal funding. 4 MR. NOMELLINI: Do you know if any of the parties to 5 the San Joaquin River Agreement have participated in 6 installing such a barrier? 7 MR. THABAULT: Again, the only agency that I'm aware 8 of that participated in that that I'm aware of is the 9 Department of Fish and Game. 10 MR. NOMELLINI: Now, you spoke in your testimony 11 about consultations. Do you know whether or not there has 12 been a formal consultation with the National Marine Fishery 13 Service with regard to salmon or steelhead being impacted 14 by this electrical barrier? 15 MR. THABAULT: Again, since I don't know whether that 16 particular barrier is currently being operated, I couldn't 17 tell you whether there would be a consultation with the 18 National Marine Fishery Service on that or not. 19 MR. NOMELLINI: All right. You testified I believe 20 with regard to the South Delta Water Agency recirculation 21 proposal that there was no request to the Fish and Wildlife 22 Service for consultation with regard to Delta smelt; is 23 that correct? 24 MR. THABAULT: Relative to the recirculation 25 proposal, that is correct. CAPITOL REPORTERS (916) 923-5447 10557 1 MR. NOMELLINI: All right. And then you testified, I 2 believe, that with regard to the San Joaquin River 3 Agreement that there was a letter sent to U.S. Fish and 4 Wildlife Service and that there was a determination that 5 the San Joaquin River Agreement was within the scope of the 6 Biological Opinion? 7 MR. THABAULT: That is not what I testified to. 8 MR. NOMELLINI: Okay. What is the status with regard 9 to the San Joaquin River Agreement and the Biological 10 Opinion issued by the U.S. Fish and Wildlife Service? 11 MR. THABAULT: We have a request from the Bureau of 12 Reclamation and their request is that we determine the 13 implementation, and their participation in that 14 implementation of the San Joaquin River Agreement basically 15 falls within the confines of the Biological Opinion. 16 MR. NOMELLINI: All right. And when we say 17 "Biological Opinion," are we talking about the Biological 18 Opinion for Delta smelt? 19 MR. THABAULT: That would be the March 6th, 1995, 20 Biological Opinion and the conference report for Delta 21 smelt and Sacramento splittail. 22 C.O. STUBCHAER: Mr. Nomellini, how much more time 23 will you need? 24 MR. NOMELLINI: I probably have another 15 minutes. 25 C.O. STUBCHAER: Let's take our afternoon break, CAPITOL REPORTERS (916) 923-5447 10558 1 then. 2 (Recess taken from 2:35 p.m. to 2:48 p.m.) 3 C.O. STUBCHAER: We will reconvene. 4 Mr. Nomellini. They forfeit, all your questions 5 are answered "yes." 6 MR. NOMELLINI: Asked and answered my own question. 7 C.O. STUBCHAER: You better wait until you have your 8 attorney to protect you. 9 MR. THABAULT: Sounds like excellent advice, 10 Mr. Stubchaer. 11 MR. BRANDT: Hey, you giving my client advice here? 12 C.O. STUBCHAER: Tell Mr. Brandt what advice I just 13 gave you. 14 MR. THABAULT: That I should wait for counsel. 15 MR. BRANDT: Thank you, excellent advice. 16 MR. NOMELLINI: All right. 17 C.O. STUBCHAER: Okay. 18 MR. NOMELLINI: All right. I think we were pursuing 19 the exact status of the request from the Bureau for 20 determination by the U.S. Fish and Wildlife Service that 21 the San Joaquin River Agreement fits within the Biological 22 Opinion. 23 I think my last question actually was with regard 24 to the Biological Opinion, I believe you indicated that it 25 was related to splittail and Delta smelt; is that correct? CAPITOL REPORTERS (916) 923-5447 10559 1 MR. THABAULT: That is correct. 2 MR. NOMELLINI: And it was March 6th -- 3 MR. THABAULT: 1995. 4 MR. NOMELLINI: Now, with regard to the action by the 5 Fish and Wildlife Service on that request, is the fact that 6 the Fish and Wildlife Service has agreed to support the San 7 Joaquin River Agreement a pre-determination that they will, 8 in fact, grant the request -- 9 MR. O'LAUGHLIN: Objection. Argumentative. 10 MR. NOMELLINI: -- by the Bureau of Reclamation? 11 C.O. STUBCHAER: Mr. O'Laughlin. 12 MR. O'LAUGHLIN: Argumentative. 13 C.O. STUBCHAER: Mr. Nomellini, you have a response? 14 MR. NOMELLINI: I want to know what the impact is on 15 the signature on the memorandum if he knows it and how it 16 relates to this request from the Bureau. 17 C.O. STUBCHAER: Mr. O'Laughlin, I have to say that I 18 did not take that as argumentative. 19 MR. O'LAUGHLIN: Then I'll object as it's beyond the 20 scope of the rebuttal testimony. What the signature on the 21 San Joaquin River Agreement has to do with Mr. Thabault's 22 testimony on recirculation escapes me. 23 MR. NOMELLINI: I'll tell you why. 24 C.O. STUBCHAER: I'm going to permit the question. 25 MR. NOMELLINI: Okay. CAPITOL REPORTERS (916) 923-5447 10560 1 C.O. BROWN: You still want to tell him? 2 C.O. STUBCHAER: No, not Mr. Nomellini. 3 MR. NOMELLINI: No. I was going to answer 4 Mr. O'Laughlin's challenge. 5 C.O. STUBCHAER: No, you don't need to unless you 6 want me to change my ruling. 7 MR. NOMELLINI: No. 8 MR. THABAULT: Mr. Spears' signature on that document 9 doesn't pre-determine the Service's decision. We are 10 evaluating Reclamation's request of us; we have not 11 formally responded, but we'll do so shortly. 12 MR. NOMELLINI: Does the U.S. Fish and Wildlife 13 Service have a written policy related to agreeing to 14 support agreements prior to review of the impacts of such 15 agreement? 16 C.O. STUBCHAER: Mr. O'Laughlin. 17 MR. O'LAUGHLIN: Objection. Once again, this is 18 outside the scope of the rebuttal testimony. His rebuttal 19 testimony was to recirculation. What the signature on the 20 San Joaquin River Agreement has to do with whether or not 21 they have a policy escapes me as to how that goes to 22 recirculation. 23 C.O. STUBCHAER: And I think this was very close to 24 being asked and answered previously, too. 25 MR. NOMELLINI: I'd like to respond to that. This is CAPITOL REPORTERS (916) 923-5447 10561 1 cross-examination, of course. And the Department of the 2 Interior brought this witness in to state all of these 3 concerns with regard to the recirculation proposal of the 4 South Delta Water Agency and that it needs to be studied. 5 Legitimate concern. 6 The position of the Department of Interior has not 7 been the same with regard to the San Joaquin River 8 Agreement. And there was no witness that came in from the 9 Department of the Interior to talk about the San Joaquin 10 River Agreement and all the various concerns that need to 11 be analyzed. 12 In fact, the evidence submitted, which the 13 Department of the Interior was part of the group to 14 present, was this Memorandum in Support, which goes to the 15 credibility of this presentation. 16 Are we treating the San Joaquin River Agreement in 17 a different way than we are treating the recirculation 18 plan? And it goes to that issue. This is pretty much the 19 heart of the cross-examination. We're getting down to 20 whether or not there's something more to the position 21 stated and the credibility of the position. 22 C.O. STUBCHAER: I thought Mr. Herrick asked him if 23 the South Delta Water Agency brought an agreement would 24 the -- 25 MR. NOMELLINI: I asked that. CAPITOL REPORTERS (916) 923-5447 10562 1 C.O. STUBCHAER: You asked that, would Fish and 2 Wildlife Service sign it subject to the future -- was that 3 you? 4 MR. NOMELLINI: Yeah, I asked that question. 5 C.O. STUBCHAER: Previously? 6 MR. NOMELLINI: In my cross-examination just a little 7 earlier. 8 C.O. STUBCHAER: Okay. 9 MR. BRANDT: Then I object. It's asked and answered. 10 C.O. STUBCHAER: It's asked and answered. 11 MR. NOMELLINI: I asked him whether or not if the 12 South Delta Water Agency brought the agreement in would the 13 Fish and Wildlife Service consider signing off on a 14 Memorandum to Support. He said, I think, "they might." 15 C.O. STUBCHAER: They might, yeah. 16 MR. NOMELLINI: Right. But my question this time, 17 though, is with regard to whether or not there is a written 18 policy of the U.S. Fish and Wildlife Service with regard to 19 execution of Memorandums of Support of agreements for which 20 there has been no analysis of the impact. 21 C.O. STUBCHAER: Mr. O'Laughlin. 22 MR. O'LAUGHLIN: Well, I think Mr. Nomellini gave a 23 very good summary at the beginning that the Department of 24 the Interior brought this witness in to talk about concerns 25 regarding recirculation. CAPITOL REPORTERS (916) 923-5447 10563 1 If Mr. Nomellini wanted to put on a rebuttal case 2 about why U.S. Fish and Wildlife Service hasn't taken the 3 same position with regards to the San Joaquin River 4 Agreement, he could have had that power and asked Mr. 5 Brandt to make any witness available from U.S. Fish and 6 Wildlife Service that he wanted to. He has chosen not to 7 do that. 8 So I don't see where he gets a free shot during 9 cross-examination during rebuttal to go beyond the scope of 10 that. And not only that, he misstates the testimony. The 11 United States Department of Interior has presented 12 testimony, and specifically through Mr. Kjelson and Pat 13 Brandes on the San Joaquin River Agreement and what effects 14 it would have on biology in the Delta. 15 So what I'm getting at here is this is way out 16 beyond anything that we've seen on redirect -- on 17 cross-examination of a rebuttal case. 18 C.O. STUBCHAER: Mr. Brandt, you look like -- 19 MR. BRANDT: That was actually what I was going to 20 add. It's just that we have put on numerous witnesses, 21 including biological witnesses in Phase II regarding this 22 issue and how it's been approached. 23 C.O. STUBCHAER: I will sustain the objection. 24 MR. NOMELLINI: All right. With regard to steelhead, 25 do you know whether or not the Bureau of Reclamation has CAPITOL REPORTERS (916) 923-5447 10564 1 requested a formal consultation with the National Marine 2 Fishery Service with regard to the San Joaquin River 3 Agreement's impact on steelhead? 4 MR. THABAULT: I am aware that the National Marine 5 Fishery Service has submitted a similar letter -- or 6 Reclamation has submitted a similar letter to the National 7 Marine Fishery Service as they have to the U.S. Fish and 8 Wildlife Service. I don't recall if they specifically call 9 out steelhead in that letter or not. 10 MR. NOMELLINI: Are those letters the bundle of which 11 you handed to Mr. O'Laughlin earlier that he agreed that he 12 would have them all marked so we could make sure we had 13 them in the record? 14 MR. THABAULT: That would be correct. 15 MR. NOMELLINI: You remember him marking those for 16 the record? 17 MR. THABAULT: He did not. 18 MR. NOMELLINI: Where are those? Do you know where 19 they are? I guess nobody wants to send them around but me 20 so we have them in the record. 21 MR. O'LAUGHLIN: I'll object to them coming into the 22 record. The reason why I didn't enter them into the record 23 is the witness specifically stated that he did not receive 24 these letters. These letters are not directed to the U.S. 25 Fish and Wildlife. And he has no personal knowledge of the CAPITOL REPORTERS (916) 923-5447 10565 1 letters. 2 They can't come in under the public records 3 exception, because they are not a public record. So I 4 don't see how Mr. Nomellini is going to get them marked and 5 into evidence. 6 C.O. STUBCHAER: They were used in your questioning 7 and they were identified by date, I guess they weren't 8 identified by exhibit number. 9 Staff have comments on these potential exhibits? 10 MR. BRANDT: Could I -- could I just -- 11 C.O. STUBCHAER: Yes. Go ahead, Mr. Brandt. 12 MR. BRANDT: I was going to add that was the problem, 13 this witness could not authenticate these documents. And 14 that's why there was a problem with using them. They were 15 the wrong ones, wrong copies. 16 C.O. STUBCHAER: Ms. Leidigh. 17 MS. LEIDIGH: The rules, of course, in administrative 18 hearings aren't quite as tight as they are in court. I 19 think the documents would be hearsay, and as such, since he 20 can't testify to them they would not be capable of being 21 used to support a finding unless they were corroborated by 22 other evidence. 23 But there is a provision in the Administrative 24 Procedures Act, it says that, let's see, 25 // CAPITOL REPORTERS (916) 923-5447 10566 1 (Reading): 2 "It can be used for the purpose of supplementing 3 or explaining other evidence." 4 So it could come in and it can also be used for a 5 finding if it would be admissible over objections in civil 6 actions. What the statute is referring to there is that 7 the rules of evidence include certain rules that allow 8 hearsay, or what would otherwise be hearsay documents to 9 come in for the truth of the matter stated and not be 10 treated as hearsay. 11 C.O. STUBCHAER: Can the questioner bring the 12 documents in, or does the witness bring the documents in to 13 authenticate his or her answer? 14 MS. LEIDIGH: Either one could bring them in. 15 Actually, I suppose Mr. Nomellini could offer it without 16 asking anybody any questions, but, of course, the value is 17 going to be determined depending on how much discussion 18 goes on. 19 MR. O'LAUGHLIN: We object to them. 20 C.O. STUBCHAER: Mr. O'Laughlin. 21 MR. O'LAUGHLIN: Well, given what Ms. Leidigh has 22 said is that, A, it doesn't come in because he cannot 23 authenticate it. It didn't go to him. It didn't go to 24 U.S. Fish and Wildlife Service. He knows nothing about it. 25 All he knows is that he has that in his possession. CAPITOL REPORTERS (916) 923-5447 10567 1 The second thing is that it can't be used to 2 authenticate some other matter or some other thing that's 3 been talked about, because in and of itself when you read 4 the letter it's specific as to the Bureau's request to 5 NMFS. So -- and not only that, what that has to do with 6 the recirculation proposal is beyond me, again. 7 So I would object. It's hearsay. It's not 8 admissible. No proper foundation has been laid. And it 9 should not be marked nor admitted into evidence. 10 C.O. STUBCHAER: Mr. Nomellini. 11 MR. NOMELLINI: All right. Mr. O'Laughlin used this 12 document in his cross-examination of this witness at which 13 time I raised the concern. He said, "This letter in my 14 hand," showing it to the witness. 15 I asked that it be marked and identified for the 16 benefit of any reader of the transcript to know what letter 17 it was. And he agreed that he would do so and he hasn't 18 done that. 19 I'm willing to do it and I'm willing to send it to 20 all the parties. I don't know what the problem is, and the 21 Chair let that pass at that time based on that 22 understanding. 23 So I first raise it for the purpose of getting 24 done what Mr. O'Laughlin agreed to do previously and what I 25 thought was the concurrence of the Chair. If it's not CAPITOL REPORTERS (916) 923-5447 10568 1 appropriate to do that, I am prepared to put this letter in 2 front of this witness and ask him if this is the letter 3 that he understands had been sent by the Bureau of 4 Reclamation to National Marine Fishery Service. And I'm 5 going to identify it so we have it in the record. And the 6 weight that you want to give to it is there. 7 Now, in addition to just the hearsay, it may be an 8 admission against interests against the Bureau, and 9 therefore, perfectly admissible as evidence in that respect 10 for some purpose in the case. I have not fully reviewed 11 the letter. 12 C.O. STUBCHAER: Going to hear from Mr. O'Laughlin 13 and then we're going to rule. 14 Mr. O'Laughlin. 15 MR. O'LAUGHLIN: Okay. And I did say that I would 16 have the document marked, but the reason I didn't have the 17 document marked is because in order to lay a proper 18 foundation for the document and get it admitted, this 19 witness has to have some personal knowledge of what is in 20 that document. 21 After reviewing it with him, as Mr. Brandt said, 22 "It's the wrong document." He knows nothing about it. 23 There is no reason to mark it. He's talking about hearsay 24 upon hearsay. And he has no knowledge of that. And if it 25 gets marked I know what is going to happen next, we'll come CAPITOL REPORTERS (916) 923-5447 10569 1 back and have the same fight, because every time the 2 question is asked I'll object because it's hearsay. 3 And then when it gets moved to be admitted into 4 evidence, I'll object again because it's not properly in 5 front of the Board as evidence because it's hearsay upon 6 hearsay. And a proper foundation hasn't been laid with the 7 exceptions cited by Ms. Leidigh, your counsel, to get that 8 document into the record. 9 C.O. STUBCHAER: Ms. Leidigh handed me a note 10 regarding the foundation requirements. 11 Would you, please, speak to that, Ms. Leidigh? 12 MS. LEIDIGH: Certainly. I think Mr. O'Laughlin may 13 not have heard me correctly. In the Administrative 14 Procedures Act there is no requirement of a foundation. 15 The document could be accepted in evidence, but the 16 objections would go to the weight of the evidence. 17 And if the objection was hearsay, then the Board 18 would have to determine, when it considers the evidence, 19 whether or not the document was available under some 20 exception to the hearsay rule so that the Board could use 21 it as a basis for a finding, if the Board so wished. 22 C.O. STUBCHAER: All right. Well, Mr. Nomellini, you 23 were correct in stating that Mr. O'Laughlin did ask 24 questions on this and it was identified for sake of 25 discussion. And I'm going to permit you to proceed with CAPITOL REPORTERS (916) 923-5447 10570 1 your questions and I understand the objections. 2 And it may not be considered as evidence, per se, 3 because it isn't testified to, but nonetheless it's a 4 letter that can be identified and discussed. 5 Is that a fair statement or did I misspeak? 6 MS. LEIDIGH: I think it's evidence, but it may be 7 hearsay. 8 C.O. STUBCHAER: Hearsay. 9 MS. LEIDIGH: And it may not be usable. 10 C.O. STUBCHAER: All right. 11 MR. NOMELLINI: And to that I would reserve the right 12 to argue that it may be an admission against interest which 13 would be clearly usable under the typical rules of evidence 14 and I'd like to have the option to make that argument. 15 C.O. STUBCHAER: Mr. Brandt. 16 MR. BRANDT: Then, of course, I would reserve the 17 right to argue that it's not. 18 MR. NOMELLINI: Housecleaning matter. Mr. Brandt, 19 may I borrow at least one of your copies for the purpose of 20 this and I will be happy to pay you for the copy cost? 21 I will mark as Central Delta Water Agency Number 22 29 -- I think that's my next in order. 23 MS. WHITNEY: Yep. 24 MR. NOMELLINI: A letter dated February 8th, 1999, 25 from the United States Department of Interior to Mr. James CAPITOL REPORTERS (916) 923-5447 10571 1 Lecky, Chief, Protected Species Division, National Marine 2 Fishery Service. 3 MS. WHITNEY: From whom? 4 MR. NOMELLINI: Pardon me? 5 MS. WHITNEY: Is it signed? 6 MR. NOMELLINI: Oh, signed by Lowell Ploss, 7 Operations Manager. How about if I buy the whole pile of 8 copies? Can we hand some -- I ask permission to buy the 9 whole pile of copies, Department of Interior made a number 10 of these copies and I am committing to repay them for the 11 cost. 12 MR. BRANDT: Our commitment to working together and 13 being cooperative is we will provide them for free. 14 C.O. STUBCHAER: Who's going to pay for the 15 transcript for all of this dialogue? 16 MR. BRANDT: All of us. 17 MR. NOMELLINI: Do you want me to wait while they're 18 being handed out? 19 C.O. STUBCHAER: Sure. Okay. 20 MR. NOMELLINI: And I will mail the copy out to all 21 the parties as per the requirements of the Board. 22 Now, Mr. Thabault, you want to finish reading the 23 letter? 24 MR. THABAULT: If I could have a minute to finish 25 reading the letter. CAPITOL REPORTERS (916) 923-5447 10572 1 MR. NOMELLINI: All right. 2 MR. THABAULT: Thank you. 3 C.O. STUBCHAER: All right, Mr. Nomellini. 4 MR. NOMELLINI: Okay. Mr. Thabault, you had 5 indicated that, to your knowledge, the Bureau of 6 Reclamation had sent a similar letter to the National 7 Marine Fishery Service a letter which you referred to that 8 was sent by the Bureau to the U.S. Fish and Wildlife 9 Service. 10 Do you recall that testimony? 11 MR. THABAULT: I do. 12 MR. NOMELLINI: Is Central Delta Water Agency Exhibit 13 29 the letter that you were making reference to from the 14 Bureau of Reclamation to the National Marine Fishery 15 Service? 16 MR. THABAULT: To the best of my knowledge, it is. 17 MR. NOMELLINI: All right. And that letter was 18 copied to the U.S. Fish and Wildlife Service; was it not? 19 MR. THABAULT: Yes, it was. 20 MR. NOMELLINI: Had you seen Central Delta Water 21 Agency Number 29 before, before today? 22 MR. THABAULT: Yes. 23 MR. NOMELLINI: Do you agree with the content of the 24 letter, particularly calling your attention to the bottom 25 of the first page? CAPITOL REPORTERS (916) 923-5447 10573 1 MR. THABAULT: Page -- 2 MR. O'LAUGHLIN: Mr. Chairman, I'm going to object. 3 The question is outside the scope of the rebuttal testimony 4 and the redirect. 5 C.O. STUBCHAER: And the redirect? 6 MR. O'LAUGHLIN: The cross-examination on the 7 rebuttal. 8 C.O. STUBCHAER: Yeah, well, actually, the 9 cross-examination isn't supposed to get into -- 10 MR. BRANDT: The scope. 11 C.O. STUBCHAER: -- the scope of the previous 12 cross-examination. It's supposed to be just the rebuttal 13 testimony itself. 14 MR. O'LAUGHLIN: That's correct. 15 MR. NOMELLINI: I agree with that statement, but I 16 don't agree that my question is beyond the scope of the 17 rebuttal testimony. 18 C.O. STUBCHAER: Just a moment. 19 MR. NOMELLINI: Okay. 20 C.O. STUBCHAER: Why don't you tell me, 21 Mr. Nomellini, how you're going to tie these into the 22 recirculation comments. 23 MR. NOMELLINI: Well, the testimony in the rebuttal 24 case was that there were concerns with regard to the 25 recirculation proposal with regard to the impact on CAPITOL REPORTERS (916) 923-5447 10574 1 steelhead. This addresses concerns with regard to 2 steelhead and the San Joaquin River Agreement. 3 And, then, I think I should be allowed to pursue 4 this witness' knowledge of the impact on steelhead 5 associated with the recirculation plan and the San Joaquin 6 River Agreement, because it's cross-examination and we're 7 testing the two and the credibility of this witness on the 8 subject. 9 C.O. STUBCHAER: Mr. O'Laughlin. 10 MR. O'LAUGHLIN: Well, once again, we're straying far 11 afield. The last sentence says -- or the last paragraph 12 says, 13 (Reading): 14 "Relative to steelhead, it is our understanding 15 at present that the species only occurs in the 16 Stanislaus River and the San Joaquin River 17 downstream of the confluence with the 18 Stanislaus." 19 My understanding of the hearing notice -- and I 20 remember Fish and Game making this objection numerous 21 times -- is we were not going to start looking at instream 22 requirement for fisheries and for particular species of 23 fish. And that this was a concern with the Bay-Delta 24 standards generally. 25 His testimony has not gone to any specific river CAPITOL REPORTERS (916) 923-5447 10575 1 nor any tributary to the San Joaquin River as to what fish 2 is in that tributary and what the flow requirements are, or 3 should be for those fish. So any testimony about that is 4 clearly outside the recirculation realm. 5 C.O. STUBCHAER: Mr. Nomellini. 6 MR. NOMELLINI: It's not. It's tied to the impact on 7 steelhead. This statement, I went through the Endangered 8 Species Act ruling with regard to the steelhead and pointed 9 out the evidence in the record that showed that there were 10 steelhead in the Stanislaus, the Tuolumne and the Merced. 11 And I want this witness' testimony as to whether 12 or not he agrees that the Bureau of Reclamation is mistaken 13 when it only concludes with regard to the Stanislaus and 14 the San Joaquin River downstream of its confluence with the 15 Stanislaus. 16 MR. O'LAUGHLIN: Yeah, but that's -- 17 C.O. STUBCHAER: Mr. Brandt. 18 MR. BRANDT: I would just add, that this witness has 19 not testified that he has that knowledge or, you know -- I 20 mean, there's no basis for this witness. 21 Not only is it beyond the scope of the rebuttal, 22 it's beyond the scope of the expertise of this witness. 23 This is the National Marine Fishery Service -- I can't say, 24 perhaps, the foundation is: Does this witness know 25 anything about this? CAPITOL REPORTERS (916) 923-5447 10576 1 MR. NOMELLINI: Well -- 2 C.O. STUBCHAER: Mr. O'Laughlin. 3 MR. O'LAUGHLIN: This is originally why I objected to 4 the testimony as you remember when we started talking about 5 the Endangered Species Act and the listing of steelhead. 6 Now, what Mr. Nomellini is doing is bootstrapping 7 his earlier questions about the ESA to Mr. Thabault on 8 cross-examination, not based on rebuttal, getting responses 9 to that and then working his way back up to the individual 10 tributaries. 11 Nowhere in this hearing have we had testimony 12 about these individual tributaries, their flow requirements 13 for the fisheries on them. And so any questions regarding 14 this memo coming out and talking about specific instream 15 flow requirements and what fish originate on those streams 16 is outside the scope of the hearing notice. And it's 17 clearly outside the scope of Mr. Thabault's testimony. 18 C.O. STUBCHAER: Off the record for a moment. 19 (Off the record from 3:15 p.m. to 3:16 p.m.) 20 C.O. STUBCHAER: Mr. Nomellini, the objection is 21 sustained. 22 MR. NOMELLINI: I had a little more argument I wanted 23 to give you, but -- 24 C.O. STUBCHAER: Well, I thought we heard quite a bit 25 of argument, but anyway -- CAPITOL REPORTERS (916) 923-5447 10577 1 MR. NOMELLINI: Well, let me -- okay. May I ask for 2 an interpretation of your ruling? Are you saying my 3 questions with regard to steelhead are not within the scope 4 of the rebuttal testimony? Because the witness 5 testified -- I went through each one of these fish species 6 and I recognize he was National -- not National Marine 7 Fishery Service, but he was brought by U.S. Fish and 8 Wildlife Service. 9 C.O. STUBCHAER: Mr. Nomellini, I think the ruling 10 stands on what is said. 11 MR. NOMELLINI: Okay. I won't ask you any more 12 questions about the wording on the bottom of Page 1. 13 It is true, is it not, that the U.S. Fish and 14 Wildlife Service under its responsibilities for the 15 National Environmental Policy Act is concerned with the 16 South Delta Water Agency recirculation plan as it relates 17 to salmon, steelhead, Sacramento splittail, long-fin smelt 18 and Delta smelt? 19 MR. THABAULT: Under our general public trust 20 responsibilities for those species we have a concern, yes. 21 MR. NOMELLINI: And your testimony today with regard 22 to those species is with regard to the U.S. Fish and 23 Wildlife's concern for protection of those species, not to 24 the responsibilities of the National Marine Fishery 25 Service; is that correct? CAPITOL REPORTERS (916) 923-5447 10578 1 MR. THABAULT: That is absolutely correct. 2 MR. NOMELLINI: Now, in connection with your 3 responsibilities in the U.S. Fish and Wildlife Service and 4 your responsibilities with regard to steelhead in 5 connection with the National Environmental Policy Act, have 6 you -- has the U.S. Fish and Wildlife Service determined 7 that steelhead are present in the Merced River? 8 MR. O'LAUGHLIN: Well, I'm going to have to keep 9 objecting. I'm sorry to do this, Mr. Chairman. But this 10 is another question that clearly goes outside the scope of 11 his testimony. We're now back on the Merced River. We're 12 now back to talking about the endangered species listing 13 for steelhead. 14 If Mr. Nomellini wanted to put on that rebuttal 15 case, he should have called those witnesses and put that 16 case on. That was not the purpose for which DOI offered 17 Mr. Thabault here today. And we're right back, again, to 18 the same question of instream flows and fisheries, but now 19 we've moved from the Stanislaus to the Merced. 20 C.O. STUBCHAER: Mr. Nomellini. 21 MR. NOMELLINI: Yeah. Where I'm heading here is 22 staying right with U.S. Fish and Wildlife Service's 23 concern, I didn't get into the endangered aspect at all of 24 steelhead. It's clear on the record that U.S. Fish and 25 Wildlife Service has some responsibilities with regard to CAPITOL REPORTERS (916) 923-5447 10579 1 steelhead. 2 I think the evidence is also clear from the ruling 3 on the endangered species -- the threatened determination 4 for steelhead that there's steelhead in the Merced, the 5 Tuolumne and the Stanislaus. 6 Now, the recirculation proposal by South Delta 7 Water Agency would put water down the San Joaquin River 8 which would flow by the confluence of the Merced, the 9 Tuolumne, and the Stanislaus. Whereas, the San Joaquin 10 River Agreement would provide flows in some cases that may 11 only come down the Stanislaus. And I wanted to pursue 12 those especially in view of the record that shows there's a 13 negative number of summertime flow in the Merced and the 14 Tuolumne. 15 C.O. STUBCHAER: Mr. O'Laughlin. 16 MR. O'LAUGHLIN: Well, I thank Mr. Nomellini for the 17 explanation of where he's going to go. And I'll have to 18 assume that there's not facts in evidence for him to 19 support going there. 20 The San Joaquin River Agreement has no scenario 21 under which there are only flows being provided by the 22 Stanislaus River. Flows are being provided. In fact, if 23 you look at the Division Agreement and the evidence that 24 was put in Phase II, the first call for water actually 25 comes from the Merced River, from anybody who's making a CAPITOL REPORTERS (916) 923-5447 10580 1 contribution to the pulse flow. 2 So that's not correct. So he can't make that 3 statement. So I don't see why we should go to the Merced 4 River and start looking at steelhead. And what flow has to 5 do with steelhead on the Merced is beyond me. 6 C.O. STUBCHAER: Mr. Nomellini, the last word -- I 7 have the last word next to the last word. 8 MR. NOMELLINI: Well, we know that flow has something 9 to do with imprinting steelhead. That testimony is already 10 in the record. And we know that there's a straying problem 11 associated with salmon and steelhead from this witness. So 12 there are relationships between flow and steelhead. 13 C.O. STUBCHAER: Time out. 14 (Off the record from 3:21 p.m. to 3:22 p.m.) 15 C.O. STUBCHAER: I'm going to sustain the objection, 16 Mr. Nomellini, but we're going to allow you to re-ask the 17 question, but tie it to the recirculation more closely 18 which was the subject of rebuttal. 19 MR. NOMELLINI: Okay. With regard to the U.S. Fish 20 and Wildlife Service and its concern with regard to the 21 impact of the South Delta Water Agency recirculation 22 proposal on steelhead, is there a concern that there would 23 be an impact on steelhead returning to the Merced River? 24 MR. THABAULT: If it is determined that steelhead 25 occur on the Merced River the answer would be, yes. CAPITOL REPORTERS (916) 923-5447 10581 1 MR. NOMELLINI: All right. Has the Fish and Wildlife 2 Service made a determination as to whether or not steelhead 3 occur on the Merced River? 4 MR. THABAULT: I am aware of the debate as to whether 5 steelhead do or do not occur on either the Merced or the 6 Tuolumne. I don't know if the Fish and Wildlife Service 7 has actually taken a formal position one way or the other 8 as to whether they occur or not. 9 MR. NOMELLINI: Did the U.S. Fish and Wildlife 10 Service submit any comments to the National Marine Fishery 11 Service on its ruling with regard to steelhead? 12 MR. O'LAUGHLIN: Objection. 13 C.O. STUBCHAER: Mr. O'Laughlin. 14 MR. O'LAUGHLIN: Once again, it's outside the scope 15 of the rebuttal testimony. 16 MR. BRANDT: Yeah. 17 MR. O'LAUGHLIN: There was no testimony by the 18 witness about consultations with NMFS in regards to the 19 listing of steelhead and what comments were or were not 20 made by U.S. Fish and Wildlife in that regard. 21 C.O. STUBCHAER: All right. Mr. Brandt. 22 MR. BRANDT: I have to join this objection. 23 C.O. STUBCHAER: Mr. Nomellini. 24 MR. NOMELLINI: All right. I was allowed to ask this 25 witness questions pertaining to steelhead as related to the CAPITOL REPORTERS (916) 923-5447 10582 1 impact on South Delta Water Agency recirculation. The 2 witness testified that there would be such a concern if, in 3 fact, there were such steelhead. 4 Cross-examination, testing this witness, asking 5 him whether or not the U.S. Fish and Wildlife Service 6 commented on the National Marine Fishery Service's 7 determination as to the endangered status, or threatened 8 status of steelhead for the purpose of seeing whether or 9 not there is a document there, written or otherwise, that 10 may have contrary information to what this witness has 11 testified to. And I think that's within the scope of 12 cross-examination. 13 C.O. STUBCHAER: I'm going to sustain the objection 14 again and ask that you tie your questions to the 15 recirculation. I didn't hear the ties. The last three 16 questions about the Merced weren't tied to the 17 recirculation. Keep it within the scope of rebuttal, 18 please, try to tie that -- 19 MR. NOMELLINI: Okay. I thought I did that, 20 Mr. Chairman, with all due respect, by asking the witness 21 whether or not the U.S. Fish and Wildlife Service had a 22 concern with regard to the recirculation of water by way of 23 the South Delta Water Agency proposal impacting steelhead 24 migrating back up to the Merced, because there's a stretch 25 of river between Vernalis and upstream that would have CAPITOL REPORTERS (916) 923-5447 10583 1 flows coming from the releases through the Newman Wasteway, 2 which I think are entirely related to the South Delta 3 recirculation plan, but I'm not going to pursue beyond the 4 objection. 5 C.O. STUBCHAER: All right. Proceed under the 6 guidelines we just discussed. 7 MR. NOMELLINI: Can I have an answer to that last 8 question about whether or not they submitted comments on 9 the -- 10 C.O. STUBCHAER: No. 11 MR. NOMELLINI: No. Okay. 12 With regard to the U.S. Fish and Wildlife 13 Service's concern for the South Delta Water Agency 14 recirculation plan, did you make any assumption as to the 15 period of time that the South Delta Water Agency barriers 16 -- strike that, that the agricultural barriers would be 17 operable? 18 MR. THABAULT: Only to the extent that they were 19 mentioned in South Delta Water Agency's Exhibit 51 that 20 they would be installed in the spring. I assumed that they 21 would be operated more or less as the temporary barriers 22 program is operated now. 23 MR. NOMELLINI: So you would expect them to be 24 operated beyond the pulse flow period? 25 MR. THABAULT: That was my assumption. CAPITOL REPORTERS (916) 923-5447 10584 1 MR. NOMELLINI: And with regard to the Head of Old 2 River Barrier as proposed in the San Joaquin River 3 Agreement, have you made any assumption as to how long that 4 would be operated? 5 MR. THABAULT: Only to the extent that it would be 6 operated during the pulse flow. 7 MR. NOMELLINI: So the Head of Old River Barrier 8 would be operated for a shorter period of time than the 9 agricultural barriers in the South Delta Water Agency 10 proposal; is that correct? 11 MR. THABAULT: That is my current operating 12 assumption, yes. 13 MR. NOMELLINI: All right. Is the longer operation 14 of barriers in the South Delta Water Agency recirculation 15 proposal an advantage or disadvantage with regard to the 16 entrainment of splittail? 17 MR. THABAULT: Is that all barriers? 18 MR. NOMELLINI: The agricultural barriers. 19 MR. THABAULT: Depending on the spawning timing, the 20 outmigration of those juveniles, when they're moving 21 through the system, what the flows are relative to the 22 division of flows at Old River, whether Head was actually 23 in, there's a lot of components there that could be 24 advantageous or could be disadvantageous depending on how 25 many barriers are in and how they're operating and the CAPITOL REPORTERS (916) 923-5447 10585 1 timing of that operation in relationship to the flows. 2 MR. NOMELLINI: And such an analysis has not been 3 performed by the U.S. Fish and Wildlife Service, has it? 4 MR. THABAULT: Not in the context of these 5 proceedings. 6 MR. NOMELLINI: Has such an analysis been performed 7 outside the context of these proceedings? 8 MR. THABAULT: We have done numerous evaluations of 9 the temporary barriers program, and the barriers as they 10 are proposed to be operated in the Interim South Delta 11 Program, yes. 12 MR. NOMELLINI: And in those studies did you reach a 13 conclusion as to whether or not the operations in the 14 Interim South Delta Program would be an advantage or 15 disadvantage to splittail, entrainment of splittail? 16 MR. THABAULT: We have concluded that the program as 17 a whole as proposed in the Interim South Delta Program was 18 not very good for either Delta smelt or Sacramento 19 splittail. We did not segregate out the individual 20 components necessarily and make a determination on each 21 individual one in that assessment. 22 MR. NOMELLINI: All right. And components in the 23 Interim South Delta Program include an increase in exports; 24 is that correct? 25 MR. THABAULT: That is correct. CAPITOL REPORTERS (916) 923-5447 10586 1 MR. NOMELLINI: Have you reviewed South Delta Water 2 Agency Exhibit 12? 3 MR. THABAULT: No. 4 MR. NOMELLINI: Have you reviewed South Delta Water 5 Agency Exhibit 13? 6 MR. THABAULT: No. 7 MR. NOMELLINI: Have you reviewed the San Joaquin 8 River Agreement? 9 MR. THABAULT: Yes. 10 MR. NOMELLINI: Have you reviewed the Final Division 11 Agreement associated with the San Joaquin River Agreement? 12 MR. THABAULT: I do not believe I've reviewed that 13 document; at least, it doesn't sound familiar to me. 14 MR. NOMELLINI: If I told you that the San Joaquin 15 River Exchange Contractors were expected to provide 11,000 16 acre-feet per annum rather than the 5,000 acre-feet 17 previously mentioned in examination of you, would you have 18 any opinion as to which was the correct number? 19 MR. THABAULT: As I stated earlier, I have no 20 knowledge of how the San Joaquin River Group is going to 21 allocate responsibility across their member agencies. 22 MR. NOMELLINI: Mr. Chairman, finally, thank you very 23 much. That's all I have. 24 C.O. STUBCHAER: You're still smiling, Mr. Nomellini, 25 very good. CAPITOL REPORTERS (916) 923-5447 10587 1 MR. NOMELLINI: Grimacing would be a better 2 description. 3 C.O. STUBCHAER: All right. Mr. Godwin. Good 4 afternoon, again. 5 ---oOo--- 6 CROSS-EXAMINATION OF THE DEPARTMENT OF THE INTERIOR 7 BY TURLOCK IRRIGATION DISTRICT 8 BY ARTHUR GODWIN 9 MR. GODWIN: Good afternoon. Arthur Godwin for the 10 Turlock Irrigation District. Some of my questions have 11 already been answered, so I'll just see what I've got here. 12 Mr. Thabault, with respect to the Biological 13 Opinion for Delta smelt that was issued in 1995, does that 14 document contain recommended flows for the San Joaquin 15 River? 16 MR. THABAULT: Yes, it does. 17 MR. GODWIN: And are those flows for the period of 18 February through June? 19 MR. THABAULT: Yes, they are. 20 MR. GODWIN: And does that also have a pulse flow 21 from about mid April to mid May? 22 MR. THABAULT: Yeah, roughly. 23 MR. GODWIN: Okay. Are you familiar with the San 24 Joaquin River flow requirements and the 1995 Water Quality 25 Control Plan? CAPITOL REPORTERS (916) 923-5447 10588 1 MR. THABAULT: Yes, I am. 2 MR. GODWIN: And do you know if those are similar to 3 the flows that are in the Biological Opinion for Delta 4 smelt? 5 MR. THABAULT: If I recall they are identical. 6 MR. GODWIN: Okay. And that Water Quality Control 7 Plan, then, includes flows outside the 31-day pulse flow 8 period; is that right? 9 MR. THABAULT: Yes, it does. 10 MR. GODWIN: Okay. Are you aware that the objective 11 of this proceeding is to implement the Water Quality 12 Control Plan? 13 MR. THABAULT: I am, indeed. 14 MR. GODWIN: Okay. Now, are you aware of any 15 proposals that contemplate a pulse flow longer than that 16 31-day pulse? What I mean by that is any proposals 17 contained within the Draft EIR prepared by the State Water 18 Resources Control Board. 19 MR. THABAULT: I don't recall any specific proposals 20 in the EIR that are recommending a longer pulse flow 21 period. 22 MR. GODWIN: Okay. And do you know if the proposal 23 by the South Delta Water Agency, which was Exhibit 51, 24 proposes a pulse flow period longer than the 31-day pulse 25 flow period? CAPITOL REPORTERS (916) 923-5447 10589 1 MR. THABAULT: I did not read that their proposal had 2 a longer pulse flow period. 3 MR. GODWIN: Okay. There were a number of questions 4 with regard to impacts -- potential impacts to imprinting 5 on salmon and steelhead. And I believe you testified that 6 Fish and Wildlife Service have done no analysis of 7 imprinting? 8 MR. THABAULT: We had done no specific analysis of 9 what the effect of any of the alternatives right now might 10 have on imprinting, yeah. 11 MR. GODWIN: Okay. Do you know if anyone has done 12 any analysis? 13 MR. THABAULT: I don't think anybody has conducted 14 such an analysis yet, no. 15 MR. GODWIN: Okay. With regard to summertime flows, 16 are you aware that the Stanislaus and the Tuolumne and the 17 Merced all have minimum instream flow requirements during 18 the summer? 19 MR. THABAULT: I'm aware that they have minimum 20 instream flow requirements, but I could not tell you what 21 they are. 22 MR. GODWIN: Okay. And do you know if the San 23 Joaquin River Agreement would change those minimum instream 24 flow requirements? 25 MR. THABAULT: I have no knowledge that the San CAPITOL REPORTERS (916) 923-5447 10590 1 Joaquin River Agreement would change those flow 2 requirements. 3 MR. GODWIN: Okay. With regard to steelhead, would 4 you agree that there's a dispute amongst stakeholders 5 regarding the presence of steelhead populations in the 6 Tuolumne and the Merced River? 7 MR. THABAULT: Yeah, I would generally agree with 8 that. 9 MR. GODWIN: Okay. Did the Fish and Wildlife Service 10 receive a letter from the Bureau of Reclamation on or about 11 February 1st, 1999, regarding cognizance with the Delta 12 Smelt Biological Opinion for the San Joaquin River 13 Agreement, Central Valley Project? 14 MR. THABAULT: Yes, we did. 15 MR. GODWIN: And is this a copy of that letter? 16 MR. THABAULT: It has no letterhead, but it's a 17 facsimile of Reclamation's transmittal to us. 18 MR. GODWIN: Okay. 19 C.O. STUBCHAER: What's the date of that letter, 20 Mr. Godwin? You said on or about received. 21 MR. GODWIN: Well, it's dated February 1, 1999, is 22 the date on the letter. I'm not sure when it was received 23 because it's been faxed around quite a bit. 24 C.O. STUBCHAER: The date on the letter. 25 Mr. Nomellini. CAPITOL REPORTERS (916) 923-5447 10591 1 MR. NOMELLINI: Could we mark that so we can identify 2 it later as to what's being referred to? I look forward 3 with greater cooperation and consistency from this attorney 4 than the one that preceded me. 5 MR. BRANDT: Actually, in response to that, what I'd 6 offer is we would be happy to send a copy of the original 7 with the letterhead, the real letter. The one I have, the 8 one that is there does not have a letterhead. And I'd be 9 happy to send it out to everybody and provide it that way. 10 We copied the wrong letter today. So -- 11 C.O. STUBCHAER: All right. Mr. O'Laughlin. 12 MR. O'LAUGHLIN: Given the offer by Mr. Brandt, then, 13 what I would request is that the exhibit be marked as a DOI 14 exhibit -- 15 MR. BRANDT: All right. 16 MR. O'LAUGHLIN: -- next in order and that it be sent 17 out by the Department of the Interior to all the parties. 18 MR. BRANDT: And it would be marked as DOI Exhibit 19 106. 20 C.O. STUBCHAER: Thank you. Does that take care of 21 your concern, Mr. -- 22 MR. NOMELLINI: Yeah, expect these guys are obviously 23 working together. And it should have been presented as 24 part of the rebuttal case rather than a cross-examination 25 on rebuttal. CAPITOL REPORTERS (916) 923-5447 10592 1 C.O. STUBCHAER: Well, I thought you were provided 2 with a stack of copies of letters. 3 MR. NOMELLINI: I did, but I'm an antagonistic party 4 to these -- 5 MR. BRANDT: So that shows how cooperative you really 6 are. 7 C.O. STUBCHAER: Cooperative to both sides, then. 8 Okay. 9 Mr. Godwin. 10 MR. GODWIN: Just a moment. Ms. Whitney is borrowing 11 the letter right now and I need it back. 12 C.O. STUBCHAER: Okay. 13 MR. NOMELLINI: Is there a representation that what 14 we're going to get in the mail is the same thing as this 15 only that -- 16 MR. BRANDT: Just has the letterhead. Yes, that is 17 my representation and that is what will be submitted to the 18 Board as well. 19 MR. O'LAUGHLIN: We're going to change it. 20 MR. GODWIN: Just for you. 21 MR. O'LAUGHLIN: You ever watch the X Files? 22 C.O. STUBCHAER: Go off the record. 23 (Off the record.) 24 C.O. STUBCHAER: All right. Mr. Godwin, are we 25 ready? CAPITOL REPORTERS (916) 923-5447 10593 1 MR. GODWIN: Yes. 2 Are you aware that this letter is requesting an 3 opinion from the Fish and Wildlife Service that the San 4 Joaquin River Agreement -- implementation of the San 5 Joaquin River Agreement would comply with the Biological 6 Opinion that was issued for Delta smelt and splittail, 7 Sacramento splittail? 8 MR. THABAULT: That is the essence of their request, 9 yes. 10 MR. GODWIN: Okay. That's all I have right now. 11 Thank you. 12 C.O. STUBCHAER: Okay. Thank you, Mr. Godwin. 13 Staff have any questions of Mr. Thabault? 14 MR. GODWIN: I did have one question, it's just a 15 real quick one. 16 C.O. STUBCHAER: All right. 17 MR. GODWIN: Do you know when you're going to be 18 responding to this letter, do you have any idea? 19 MR. THABAULT: Since most of the staff biologists 20 that are going to be responding to it are going to be at 21 Asilomar, probably not until next week. 22 MR. GODWIN: Okay. 23 C.O. STUBCHAER: Okay. Thank you, Mr. Godwin. 24 MR. HOWARD: No questions. 25 MS. LEIDIGH: No questions. CAPITOL REPORTERS (916) 923-5447 10594 1 C.O. STUBCHAER: Mr. Brown. 2 ---oOo--- 3 CROSS-EXAMINATION OF THE DEPARTMENT OF THE INTERIOR 4 BY BOARD MEMBERS 5 C.O. BROWN: Is there any advantages that you can 6 think of having water put in the San Joaquin farther 7 upstream in, let's say, upstream to the Bureau's diversion 8 or the Mendota Pool? 9 MR. THABAULT: There certainly could be, yes. I'm 10 having a little trouble following where it might come in 11 at, depending on, again as I testified, the sources of 12 water that might be in there, certainly, there are 13 advantages to providing instream flows to the San Joaquin, 14 yes. 15 C.O. BROWN: Do you intend to address those potential 16 advantages or others? 17 MR. THABAULT: In relationship to the South Delta 18 Water Agency proposal, or -- 19 C.O. BROWN: Yes, or others. 20 MR. THABAULT: I think we would have to look at both 21 the adverse and the beneficial effects on those requests. 22 In order to make the determination you have to balance both 23 of those, yes. 24 C.O. BROWN: So if there are advantages they will be 25 identified? CAPITOL REPORTERS (916) 923-5447 10595 1 MR. THABAULT: That is our task, we should identify 2 those if they, in fact, occur. 3 C.O. BROWN: If there are disadvantages that you 4 determine to be true in your opinion or by fact, you will 5 identify those, also? 6 MR. THABAULT: Yes, we should. Yes. 7 C.O. BROWN: Do you anticipate that all the 8 alternatives will have some disadvantages associated with 9 them? 10 MR. THABAULT: All of the alternatives identified in 11 the Board's documents? 12 C.O. BROWN: In the Draft EIR. 13 MR. THABAULT: I would anticipate that there are 14 probably advantages or disadvantages to all the 15 alternatives in the EIR for one resource or another, yes. 16 C.O. BROWN: So you would expect and anticipate that 17 there will be some cost regardless of what this Board might 18 select? 19 MR. THABAULT: There will undoubtedly be some cost to 20 some resource. 21 C.O. BROWN: When you make your analysis, do you do a 22 comparison as to the benefit cost or similar type of 23 analysis to identify the advantages versus the 24 disadvantages of alternatives? 25 MR. THABAULT: We do not conduct, if I understand the CAPITOL REPORTERS (916) 923-5447 10596 1 question, an economic cost benefit analysis in our 2 evaluation. 3 C.O. BROWN: I meant not in the sense of dollar, but 4 in the bio? 5 MR. THABAULT: Certainly, when we evaluate projects 6 we have to look at both the advantages and disadvantages 7 and make, in essence, a net decision as to what the 8 ultimate effect on a resource is going to be. I mean that 9 is our task, yes. 10 C.O. BROWN: So we can anticipate that kind of input 11 and information to be forthcoming where you will identify 12 the reasons, too, in favor of an alternative and the 13 reasons against an alternative, the advantages against it? 14 MR. THABAULT: On what -- on which timeline? 15 C.O. BROWN: Whatever form you have, I want to know 16 if you're going to have some input that not only identifies 17 the disadvantages of an alternative but also the 18 advantages. I want to know if there's reasons to do 19 something as opposed to reasons not to do something. 20 MR. THABAULT: I understand your question. I would 21 presume that as we move through this process and into the 22 subsequent ultimate phases, we would provide information on 23 alternatives that we believe would provide the most 24 benefit. 25 If there are benefits to all the alternatives, we CAPITOL REPORTERS (916) 923-5447 10597 1 should probably provide that information to the Board, yes. 2 I could not give you a timeline for when that would happen, 3 though. 4 C.O. BROWN: That's all I have, Mr. Chairman. 5 C.O. STUBCHAER: Would you look at multi-species 6 benefits and drawbacks, or just particular endangered 7 species that you were working on a Biological Opinion for? 8 MR. THABAULT: Well, whenever possible we try to do 9 the maximum multi-species benefit that we can, or to look 10 at all the effects on a multi-species basis. 11 There is an unfortunate artifact in the Endangered 12 Species Act, there is a priority that ultimately ends up 13 having to enter our thought processes in terms of making 14 ultimate determinations for our resources. So the answer 15 is, yes, we try to do that to the maximum extent possible, 16 but we view -- our ultimate jurisdiction and authority does 17 reside with the endangered species that are under our 18 purview. 19 C.O. STUBCHAER: In a case where there's several 20 endangered or threatened species, perhaps, some anadromous 21 and others not, the jurisdiction lies among two different 22 federal agencies, what process do you have for identifying 23 the optimum configuration among the species of concern and 24 the competition potential with each other? 25 MR. THABAULT: On issues of gravity that are being CAPITOL REPORTERS (916) 923-5447 10598 1 developed in this forum, we work with the National Marine 2 Service very closely on these alternatives to try to 3 minimize the conflict between species, both at a staff 4 level and at a policy level. There's no particular formal 5 memorandum, but that coordination does absolutely occur, it 6 must occur. 7 C.O. STUBCHAER: Thank you. 8 Mr. Brandt, no redirect? 9 MR. BRANDT: No redirect. 10 C.O. STUBCHAER: Exhibits? 11 MR. BRANDT: Actually -- 12 C.O. STUBCHAER: We'll hold them. 13 MR. BRANDT: We have Ms. Manza. And if we can do it, 14 I think Mr. Herrick can do it rather quickly. 15 C.O. STUBCHAER: Okay. Thank you very much, 16 Mr. Thabault. Thank you for your participation. 17 Ms. Manza. 18 MS. MANZA: Manza. 19 C.O. STUBCHAER: I knew how it was spelt, but I 20 didn't know if it was a long "A" or a short "A" 21 pronunciation. 22 MS. MANZA: Thank you. 23 C.O. STUBCHAER: Welcome back. 24 And, Mr. Herrick, we're ready to resume. 25 MR. HERRICK: You want me to drag it out through CAPITOL REPORTERS (916) 923-5447 10599 1 tomorrow, so we can fill up the day tomorrow? 2 C.O. STUBCHAER: I thought you would drag it out 3 until 7:00 or 8:00 so Mr. Brown can stay with you so I can 4 go home. 5 ---oOo--- 6 CROSS-EXAMINATION OF THE DEPARTMENT OF THE INTERIOR 7 BY SOUTH DELTA WATER AGENCY 8 BY JOHN HERRICK 9 MR. HERRICK: John Herrick for the South Delta Water 10 Agency. Thank you, Mr. Chairman and Board Member Brown. 11 I will be as quick as I can. I think we can get out in 12 time, because I was able to go back over my notes to make 13 it -- to consolidate my questions. 14 Ms. Manza, I believe you said that the thrust of 15 your testimony, or part of your testimony was to make sure 16 that statements made by Alex Hildebrand regarding when the 17 violations of the Vernalis salinity standard may occur 18 under the Interim Operation Plan are not misconstrued. 19 Is that correct? 20 MS. MANZA: I don't think I specifically referenced 21 statements made by Alex Hildebrand, but simply that I do 22 want to clarify and expound on exactly when violations do 23 occur and give more detail than just X number of years. 24 MR. HERRICK: And you also stated, I believe to a 25 question that I gave you, that generally the water quality CAPITOL REPORTERS (916) 923-5447 10600 1 violations at Vernalis occur in the drier years; is that 2 correct? 3 MS. MANZA: That's correct. 4 MR. HERRICK: I want to explore with you, maybe 5 there's a better way we can describe the potential water 6 quality violations under the Interim Operation Plan. 7 And I'm giving you Page 14 from San Joaquin River 8 Group Authority Exhibit 11, which is the testimony of Dan 9 Steiner. And really quickly, this is, again, the 71-year 10 graph of hydrology. Let's go to column two, the year 11 class. 12 And I'll go down the line here and count and see 13 if we come up with the same number of wet years. And I'm 14 going to count them out loud, I'm not going to say the 15 year. I have 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 16 14, 15, 16, 17, 18, 19. 17 Is that correct? 18 MS. MANZA: I believe I had counted 18, but -- 19 MR. HERRICK: Okay. Let's just make it 18, then. 20 This is just for an example. 21 MS. MANZA: Okay. 22 MR. HERRICK: So if we have a 71-year type and we 23 take out the wet years, that's 71 minus 18. That would be 24 53; is that correct? 25 MS. MANZA: That sounds correct. CAPITOL REPORTERS (916) 923-5447 10601 1 MR. HERRICK: And, then, as per your testimony, there 2 are 37 years of the 71 history that had at least one month 3 of violations; is that correct? 4 MS. MANZA: That's correct. 5 MR. HERRICK: So if we do 37 divided by 53 I come up 6 with 69.8 percent. Is that a more realistic way of 7 examining that information? 8 MS. MANZA: Again, I was trying to get away from 9 representing it based on years but going into months and, 10 in fact, looking at frequency during the irrigation season 11 which is, based on my understanding, of greater importance 12 than the nonirrigation season. 13 In our Exhibit 105-A at the very back we have a 14 table where I've itemized the number of wet years, above 15 norm, below norm, dry and critical. And I added up the 16 number of years within those types, that have at least one 17 month of deficiency occurring; and by the way you were 18 right, it was 19 years. 19 And if you look on that back table it's very clear 20 that in dry and critical years it's essentially a 21 hundred-percent of the time that there's at least one 22 month, with violations. But, again, there's at least one 23 month and how much is it being violated by? And that's 24 what we were trying to bring clarification on. 25 MR. HERRICK: Do you have any information regarding CAPITOL REPORTERS (916) 923-5447 10602 1 violations of the fishery flows during those same 71 year 2 types under the San Joaquin River Agreement? 3 MS. MANZA: I did not look at that. 4 MR. HERRICK: Okay. Do you think that's important to 5 compare the number of violations for one standard against 6 another in deciding whether or not to adopt a program? 7 MS. MANZA: Which fishery flows are you talking 8 about, instream on Stanislaus or at Vernalis? 9 MR. HERRICK: Vernalis. 10 MR. O'LAUGHLIN: Well, I'm going to object that it's 11 outside the scope of the witness' testimony. 12 MR. BRANDT: I think I'll join that one. 13 C.O. STUBCHAER: Mr. Herrick. 14 MR. HERRICK: I believe the earlier testimony by the 15 witness was that New Melones, in explaining the Interim 16 Operation Plan, that New Melones had insufficient flows to 17 meet all of the standards. I think it's perfectly 18 appropriate to ask her how that analysis might go forward 19 if you're going to examine violations of standards. 20 C.O. STUBCHAER: I don't remember the questions from 21 the original testimony well enough. 22 MR. HERRICK: I can move on. That's fine. 23 C.O. STUBCHAER: All right. 24 MR. HERRICK: Ms. Manza, on what do you base your 25 statement that you looked at the irrigation season? Where CAPITOL REPORTERS (916) 923-5447 10603 1 does that come from? 2 MS. MANZA: Okay. What -- exhibit, exhibit is the 3 word I'm looking for. Exhibit 105 I state that the 4 irrigation season is -- in my document here is considered 5 to be the months of April through August, that's based on 6 the Board's standard requirement of .7 EC at Vernalis. 7 And, of course, the non-irrigation season is September 8 through March, which corresponds to the months that have a 9 1 EC requirement at Vernalis. 10 MR. HERRICK: Is it your understanding that there is 11 no agricultural irrigation taking place outside of the time 12 frame from April to August? 13 MS. MANZA: I have no knowledge of when they are or 14 are not irrigating. I simply based those terms 15 corresponding to the Board's determination of when a higher 16 water quality is required -- a better water quality is 17 required. 18 MR. HERRICK: Is there anything in the 1995 Water 19 Quality Control Plan that leads you to label one time of 20 the year an irrigation season and another time of the year 21 not an irrigation season? 22 MS. MANZA: I just answered that question. 23 MR. HERRICK: Well, you told us that there's a 24 different standard at different times of the year. I'm 25 asking you why you're concluding that one season is an CAPITOL REPORTERS (916) 923-5447 10604 1 irrigation season and one season is a nonirrigation season? 2 MS. MANZA: It seems to me to be logical to assume 3 that you want to use the better quality water during the 4 heaviest periods of irrigation. And that the Board would 5 require less stringent water quality when it's perceived 6 that the irrigation requirement is lower. 7 MR. HERRICK: So you would conclude, then, that 8 there's a greater need for irrigation not that there's not 9 no irrigation in other times? 10 MS. MANZA: Correct. 11 MR. HERRICK: Do you recall that the previous Water 12 Quality Control Plan had a 500 TDS standard rather than the 13 7 and 1.0 EC standard? 14 MS. MANZA: Yes. 15 MR. HERRICK: And do you recall that was throughout 16 the whole year; is that correct? 17 MS. MANZA: Yes, it was 500 for all 12 months. 18 MR. HERRICK: Okay. Now, the season for which the 19 lower EC standard applies you referenced as April through 20 August; is that correct? 21 MS. MANZA: That's correct. 22 MR. HERRICK: And that's five months; is that 23 correct? 24 MS. MANZA: That's correct. 25 MR. HERRICK: Looking on Page 1 of DOI 105-A, and CAPITOL REPORTERS (916) 923-5447 10605 1 just running down the list there, the numbers given are the 2 amount of TDS by which the Vernalis standard is exceeded by 3 the SJRA May plan; is that correct, the first page of 4 105-A? 5 MS. MANZA: Yes. Those were -- those were stapled in 6 the wrong order. I have it in front of me now. Okay. 7 MR. HERRICK: Okay. And if we run up and down that 8 list we see that there's a number of -- a number of numbers 9 in the July and August columns that are sort of paired up. 10 In other words, there's normally a July and August number 11 if there's any number in one of those months; is that 12 generally correct? 13 MS. MANZA: I see a definite trend towards that 14 pattern, although, there are a number of exceptions. I see 15 one, two, three, four, five, six, seven years in which 16 there is a violation in August only. 17 MR. HERRICK: Okay. I'm looking at the first page of 18 DOI 105-A. I think you're looking at a different page. 19 MS. MANZA: Okay. 20 MR. HERRICK: I'm just going by my stapled copied; 21 that doesn't mean the way it was submitted. 22 MS. MANZA: Okay. Contract year, sorry. 23 MR. HERRICK: Okay. Anyway, the same point? 24 MS. MANZA: My answer is the same. There is a 25 general pattern, but there are still some years in which CAPITOL REPORTERS (916) 923-5447 10606 1 there's no violation in July but is in August. 2 MR. HERRICK: And so, generally, then, we have two 3 months out of the five months for that season that you have 4 violations in those years; is that correct? 5 MS. MANZA: In the drier year types, yes. 6 MR. HERRICK: Okay. And would that be a more clear 7 way to present this evidence to the Board to let them know 8 what percentage of months during this more important 9 irrigation season violations are occurring? 10 MS. MANZA: I would say I agree with that, yes. 11 MR. HERRICK: Okay. So 2/5s is, what, 40 percent? 12 MS. MANZA: Yes. 13 MR. HERRICK: So in the dryer years to which you're 14 referring, during 40 percent of the months in that 15 important season there are violations; is that correct? 16 MS. MANZA: Violations of some amount, yes. 17 MR. HERRICK: Okay. Now, as we look up and down -- I 18 don't mean to be too fast here. As we look up and down, 19 and I'm just looking in the years that have two -- have a 20 number of -- have a violation number of July and of August. 21 And as we go down there's an 86. I'm trying to 22 find the low numbers. There's a 142. And, again, just the 23 numbers in both July and August. It looks like that 86 is 24 the lowest; is that correct -- oh, there's a 49 down at the 25 bottom. CAPITOL REPORTERS (916) 923-5447 10607 1 Would you agree that generally speaking for July 2 and August in those years where there's violations the 3 lowest number appears to be a 49? 4 MS. MANZA: Yes, that's correct. 5 MR. HERRICK: Would you agree, though, that most of 6 the violation are at least 100 TDS above the standard? 7 MS. MANZA: Well, the average is 198 in July and 180 8 in August. Averaging only the months that have violations, 9 not including the months that have no violation. 10 MR. HERRICK: Okay. Let's use those averages then, 11 do you know what the TDS for the .7 EC standard is? Would 12 455 be about correct? 13 MS. MANZA: 455 is what we use in our modeling. 14 However, because the EC has to be converted to TDS, the 15 number that you get depends on the conversion factors that 16 is used. 17 MR. HERRICK: For these purposes, let's use that 455 18 number. So the average in July in those years with 19 violations is 198, we divide 198 divided by 455, I come up 20 with 43.5 percent. 21 Is that the amount, the percentage above the 22 standard for the violation; would that be correct? 23 MS. MANZA: That sounds correct. 24 MR. HERRICK: And let's do that for the average for 25 August. That's 180. I'll divide that by 455 and I come up CAPITOL REPORTERS (916) 923-5447 10608 1 with 39.5, would you agree that's the average violation of 2 the standard in those years, then? 3 MS. MANZA: I would agree that number sounds, based 4 on the division, sounds correct. 5 MR. HERRICK: Okay. So would it be more clear to say 6 that in those dryer years, generally, we have 40 percent of 7 the months with violations and, generally, those violations 8 are 40 percent above the standard; is that correct? 9 MS. MANZA: Yes, that is one way of looking at it. 10 MR. HERRICK: Now, if I'm wrong correct me, it's my 11 understanding that you're here to better explain the New 12 Melones Interim Operation Plan to the Board; is that 13 correct, or the effects of it? I'm sorry. 14 MR. BRANDT: No. 15 MR. HERRICK: Okay. 16 MR. BRANDT: Well -- 17 MS. MANZA: No, I'm not. 18 MR. HERRICK: Is it -- thank you, Mr. Brandt. 19 Do you believe that it's okay for the Bureau to 20 adopt a plan that results in these sort of violations that 21 we just discussed? 22 MR. BRANDT: I think that's outside the scope of her 23 rebuttal. She's here just to report some facts, not to 24 make a policy judgment or -- 25 C.O. STUBCHAER: Mr. O'Laughlin. CAPITOL REPORTERS (916) 923-5447 10609 1 MR. O'LAUGHLIN: I'll object. It calls for a legal 2 conclusion. 3 C.O. STUBCHAER: Try another question, please, 4 Mr. Herrick. 5 MR. HERRICK: Okay. 6 Ms. Manza, have you reviewed any of the Draft EIR 7 supporting the -- the Draft EIR for these proceedings? 8 MS. MANZA: I have briefly, "I have briefly," 9 emphasis, reviewed the Draft EIR mainly with emphasis on 10 flow Alternative 6. 11 MR. HERRICK: And I believe you said, not today but 12 earlier in questioning, that you used some of the modeling 13 done by Mr. Steiner for your presentation today and -- was 14 that yesterday? 15 MS. MANZA: Last week. 16 MR. HERRICK: Last week. 17 MS. MANZA: Yes. The numbers that are labeled SJRA 18 May Plan are the same as the studies used by Mr. Steiner. 19 MR. HERRICK: Okay. And also last week another 20 witness by DOI talked about the backstop for the San 21 Joaquin River Agreement. 22 Are you familiar with that at all? 23 MS. MANZA: No, I'm not. 24 MR. HERRICK: Okay. I believe you said -- you stated 25 earlier that the violations that will occur for the CAPITOL REPORTERS (916) 923-5447 10610 1 Vernalis salinity standard under the Interim Operation Plan 2 are lower than the violations that occurred for that 3 standard prior to that plan? 4 MS. MANZA: Would you repeat the question again? 5 MR. HERRICK: Let me back up. Do you have any 6 knowledge of the frequency of violations of the Vernalis 7 salinity standard pre-Interim Operation Plan? 8 MS. MANZA: I did not put that together for this 9 hearing. 10 MR. HERRICK: And in order to -- okay. Let me show 11 you page Roman Numeral VI-XXXX of the DEIR. And I believe 12 the chart on that page give the DEIR's analysis of the 13 effects of the stream flows for San Joaquin River at Newman 14 and Stanislaus River for two things: A critical period and 15 a 73-hydrology period. 16 MS. MANZA: Yes. 17 MR. HERRICK: Now, do you recall that Alternative 8 18 is the alternative for the San Joaquin River Agreement? 19 MS. MANZA: My understanding is that Alternative 8 is 20 similar to but not necessarily identical to the San Joaquin 21 River Agreement. 22 MR. HERRICK: Okay. And, perhaps, I can jog your 23 memory on that. I think Alternative 7 was a Letter of 24 Intent similar to the San Joaquin River Agreement, but that 25 Alternative 8 was supposed to be the San Joaquin River CAPITOL REPORTERS (916) 923-5447 10611 1 Agreement. 2 Does that jog your memory? 3 MS. MANZA: As I said, I reviewed it only briefly and 4 quite a while ago with emphasis on flow Alternative 6 and 5 not the others. So, if I misspoke it's because I did not 6 review it adequately. 7 MR. HERRICK: Ms. Manza, as you give testimony 8 regarding the effects of the Interim Operation Plan on 9 water quality violations at Vernalis, would your opinion as 10 to the frequency of those violations change if any 11 alternative that was implemented might decrease stream 12 flows at Vernalis? 13 MS. MANZA: The frequency of violation at Vernalis 14 will be different under all of the alternatives. Changing 15 flow at Vernalis, whether increasing or decreasing, will 16 change the frequency with which water quality is met. 17 MR. HERRICK: Okay. But if an alternative adopted 18 results in decreases of stream flows, would you expect 19 those decreases to affect violations during those times 20 when those decreases occur? 21 MS. MANZA: Yes, I would. 22 MR. BRANDT: Are you asking about -- go ahead. 23 MR. HERRICK: Ms. Manza, has the Bureau done any sort 24 of modeling to determine violations at Vernalis resulting 25 from decreases in stream flows that might result from CAPITOL REPORTERS (916) 923-5447 10612 1 adoption of the San Joaquin River Agreement? 2 MS. MANZA: The table I brought with me shows when 3 the violations are anticipated to occur at Vernalis based 4 on the San Joaquin River Agreement. 5 MR. HERRICK: And does that analysis take into 6 account potential decreases in other months -- excuse me, 7 decreases in months other than the pulse flow months? 8 MR. O'LAUGHLIN: Objection. 9 C.O. STUBCHAER: Mr. O'Laughlin. 10 MR. O'LAUGHLIN: Assumes facts not in evidence that 11 there are reductions in other months. 12 MR. HERRICK: That's why I supplied her with that 13 table which evidences those months. 14 MR. O'LAUGHLIN: Yeah, but what's interesting is he 15 supplied her with the table, but what he fails to realize 16 is the table doesn't take into account -- the modeling that 17 was done for the tables does not include the Interim 18 Operation Plan. So what that table has to do with the San 19 Joaquin River Agreement, there's no connection. 20 MR. NOMELLINI: I'd like permission to cross-examine 21 this new witness, provided he's duly sworn. 22 MR. O'LAUGHLIN: Well, that's the problem with the 23 question, Mr. Nomellini, I think is that you just made it, 24 is that he's assuming that the modeling that was done by 25 staff for the State Water Resources Control Board is the CAPITOL REPORTERS (916) 923-5447 10613 1 San Joaquin River Agreement. Yet, there is no testimony in 2 the record that it is the agreement and what that modeling 3 shows in regards to those specific alternatives. 4 C.O. STUBCHAER: Mr. Herrick -- 5 MR. HERRICK: I would -- 6 C.O. STUBCHAER: -- could you have a couple of 7 foundational questions? 8 MR. HERRICK: Yeah. I would just like to comment 9 that if Mr. O'Laughlin doesn't like the presentation with 10 regards to the effects of the San Joaquin River Agreement, 11 they could have put on a case in chief. His comments as to 12 what flows do and do not occur don't have anything to do 13 with the questioning I'm asking. 14 Let me refer the witness to Page 11 of 15 Mr. Steiner's testimony at the very bottom. And 16 Mr. Steiner's testimony is San Joaquin River Group 17 Authority 11 on Page 11. He says at the bottom, 18 (Reading): 19 "That as a result of the program there may be 20 decreases in flows in winter months during wet 21 and below normal years." 22 MR. O'LAUGHLIN: Yeah, but that wasn't the question 23 that was asked. I mean that's an entirely different -- and 24 that just supports my statement that I stated earlier. 25 That is not the same question that was asked Ms. Manza. CAPITOL REPORTERS (916) 923-5447 10614 1 C.O. STUBCHAER: We suggested that Mr. Herrick lay 2 some foundations and I think that's what he's doing now. 3 MR. HERRICK: Thank you. 4 MS. MANZA: Would you repeat the question, please? 5 MR. HERRICK: Ms. Manza, does the analysis that you 6 performed take into account a potential change in water 7 quality violations in months other than the pulse flow 8 months? 9 MS. MANZA: This document reflects the violations of 10 water quality at Vernalis in all months that was a result 11 of the SJRA May analysis. 12 MR. HERRICK: And so that's based on Mr. Steiner's 13 analysis; is that correct? 14 MS. MANZA: That is correct. 15 MR. HERRICK: Now, does that analysis take into 16 account any of the purchases that might be done in excess 17 of 110,000 acre-feet contained -- or set forth in the San 18 Joaquin River Agreement? 19 MS. MANZA: Are you referring to willing seller 20 purchases? 21 MR. HERRICK: Yes. 22 MS. MANZA: No, there's no willing seller in here. 23 MR. HERRICK: And does that take into account any 24 purchases that were described by Mr. Renning that might 25 constitute backstop measures taken by the Bureau? CAPITOL REPORTERS (916) 923-5447 10615 1 MS. MANZA: No, that was not in here. 2 MR. HERRICK: Do you have any opinion as to whether 3 or not such purchases as I just described in my last two 4 questions might affect flows at various times of the year 5 on the San Joaquin River or its tributaries? 6 MS. MANZA: Such purchases would obviously have a 7 positive impact during the months when the flow was 8 released. And it is unknown whether or not there would be 9 any impact during other months. 10 MR. HERRICK: When you said that is "unknown," why do 11 you say that? 12 MS. MANZA: Because I do not know by what methods 13 this water would be derived. 14 MR. HERRICK: And depending on the method, it could 15 result in a decrease in flows at some other time; is that 16 correct? 17 MS. MANZA: It is possible. 18 MR. HERRICK: And the Bureau has done no analysis of 19 those potential effects? 20 MS. MANZA: I don't know if there has been any 21 analysis done in any other work group in Reclamation. My 22 group has not done an analysis on it. 23 MR. HERRICK: Ms. Manza, you said that -- I believe 24 you stated that last week, that the increased flows during 25 the pulse period may help correct some water quality CAPITOL REPORTERS (916) 923-5447 10616 1 violations that might have occurred during that time. 2 Is that a correct statement, historically? 3 MS. MANZA: I believe the question that was asked of 4 me last week was: Why is there an improvement in ability 5 to meet water quality under the SJRA? 6 And my response was that I wasn't sure exactly but 7 I believed that it must have come from the impact of the 8 additional water coming down during the pulse flow period. 9 MR. HERRICK: And can I take that to mean that the 10 water during the pulse flow is correcting a violation that 11 would have occurred, or just improving the water quality? 12 MS. MANZA: Improving the water quality. 13 MR. HERRICK: So to your knowledge, there was no 14 violations of water quality during that April/May period 15 historically? 16 MR. BRANDT: Objection. Vague. You mean even before 17 the standard existed? 18 MR. HERRICK: Well, it couldn't be a violation before 19 we had a standard. I think that was -- 20 MR. BRANDT: I just wanted to be clear. So you're 21 not talking hypothetically? 22 MS. MANZA: Do you mean under true historical 23 conditions, or under the base case analysis before interim 24 operations is imposed? 25 MR. HERRICK: Let's take the historical first and CAPITOL REPORTERS (916) 923-5447 10617 1 then I'll ask the base case next. 2 MS. MANZA: Well, historically we haven't had pulse 3 flow for very long and we've had interim operations almost 4 that whole time. But if it was a dry year there's a 5 potential to have been some violations during April and 6 May. 7 MR. HERRICK: Okay. Let me refer you to Page 24 of 8 Mr. Steiner's testimony. And if you run your fingers up 9 and down the April/May period, tell me if you find any TDS 10 amount above 455, please. 11 MR. BRANDT: By the way, she's reviewing Table 3, 12 Page 1 of 8, Model Vernalis, Water Quality. 13 C.O. STUBCHAER: Thank you, Mr. Brandt. I was 14 wondering if it was clear to everybody what she was 15 referring to. 16 MR. HERRICK: Sorry, I was trying to be quick. My 17 apologies. 18 MS. MANZA: No, I do not see any incidents above the 19 455. 20 MR. HERRICK: I think that's all I have. Thank you 21 very much. 22 Mr. Chairman, I apologize for the lateness. 23 C.O. STUBCHAER: Staff. 24 MS. LEIDIGH: Do you have any questions? 25 C.O. STUBCHAER: Mr. Howard. CAPITOL REPORTERS (916) 923-5447 10618 1 ---oOo--- 2 CROSS-EXAMINATION OF THE DEPARTMENT OF THE INTERIOR 3 BY STAFF 4 MR. HOWARD: Just a couple quick questions for -- so 5 that I can understand what models were used in the analysis 6 that you conducted. As I understand it for the alternative 7 called San Joaquin River Agreement, you used the model 8 studies conducted by Dan Steiner; is that correct? 9 MS. MANZA: I used the same output from the same 10 study that Mr. Steiner used, yes. 11 MR. HOWARD: Do you know what models he used to get 12 that output? 13 MS. MANZA: Yes. There's what's called the SANJASM 14 Model and the STANDMOD Model which is a Lotus spreadsheet. 15 MR. HOWARD: You also said -- does he use PROSIM by 16 the way, in that complete analysis, or does he only use 17 SANJASM or STANDMOD? 18 MS. MANZA: We have to get input from the PROSIM 19 model, yes. 20 MR. HOWARD: Okay. You also say on the first page of 21 DOI Exhibit 105 that, 22 (Reading): 23 "We have also done a study with the San 24 Joaquin" -- 25 I'm sorry, let me go back a minute. Could you tell CAPITOL REPORTERS (916) 923-5447 10619 1 me what models you used for the Interim Plan, then? 2 MS. MANZA: Interim Operations Plan was conducted 3 with the SANJASM Model and the STANDMOD Model. 4 MR. HOWARD: So they were the same models insofar as 5 you're aware? 6 MS. MANZA: Yes. 7 MR. HOWARD: Do you know if they were the same 8 versions of the models? 9 MS. MANZA: No. There had to be some modifications 10 made to the STANDMOD and to SANJASM for the SJR. 11 MR. HOWARD: Okay. Thank you. 12 C.O. STUBCHAER: Any questions? 13 MS. LEIDIGH: No. 14 C.O. STUBCHAER: Board Members? 15 C.O. BROWN: I have a couple -- 16 C.O. STUBCHAER: Mr. Brown. 17 ---oOo--- 18 CROSS-EXAMINATION OF THE DEPARTMENT OF THE INTERIOR 19 BY BOARD MEMBERS. 20 C.O. BROWN: Ms. Manza, you put together DOI Exhibit 21 104? 22 MS. MANZA: 104? 23 C.O. BROWN: Is that yours? 24 MS. MANZA: It was jointly authored, yes. 25 C.O. BROWN: Are you the project manager on this? CAPITOL REPORTERS (916) 923-5447 10620 1 MS. MANZA: I am a modeler. We are -- so, no, I'm 2 not the project manager. 3 C.O. BROWN: Who is the project manager, do you know? 4 MS. MANZA: On recirculation issues? 5 C.O. BROWN: No. On this document right here, in 6 part it says, "DOI Exhibit 104, Recirculation Issues." 7 MS. MANZA: We don't have a project manager for 8 recirculation. I was the main participant in the 9 recirculation studies that were performed by DWR. 10 C.O. BROWN: Okay. Then, these issues that you have 11 down here, are these issues that you developed? 12 MS. MANZA: Yes. Myself and another modeler who was 13 the one who wrote our detailed study plan for what 14 Reclamation views needs to be looked at for a complete 15 recirculation study. 16 C.O. BROWN: All right. Do you have a work plan, 17 then, that you developed for a recirculation study? 18 MS. MANZA: Reclamation does, yes. 19 C.O. BROWN: All right. Do you have -- these issues 20 that you've identified here are all issues of concern. Do 21 you have issues identified in the work plan that show 22 positive reasons of why to do this? 23 MS. MANZA: I don't remember the wording of the work 24 plan exactly, it's been quite a while since I read it in 25 detail. But the conclusion of our initial appraisal level CAPITOL REPORTERS (916) 923-5447 10621 1 study was that there is potential for recirculation to have 2 a positive effect. 3 However, we had these other issues that we were 4 not able to evaluate in the appraisal level study. And we 5 felt that we needed to do more research before we could 6 make any sort of conclusion. 7 C.O. BROWN: Wouldn't you do the same kind of 8 research on issues that may have a potential positive 9 affect? 10 MS. MANZA: Yes, we would. 11 C.O. BROWN: Is there some reason that those were not 12 submitted also and discussed? 13 MS. MANZA: I don't know. 14 C.O. BROWN: That's all I have, Mr. Chairman. Thank 15 you. 16 C.O. STUBCHAER: Ms. Forster. 17 MEMBER FORSTER: Many hours ago when you were being 18 cross-examined by someone and then -- I apologize I didn't 19 write down who the cross-examiner was -- but they asked you 20 a question on alternatives for releases from New Melones 21 for water quality. 22 You said there were two alternatives. One was 23 recirculation and two is Friant, but you never said 24 anything more about Friant. 25 Why didn't you say anything more about that? What CAPITOL REPORTERS (916) 923-5447 10622 1 did you mean? 2 MS. MANZA: Because -- I didn't say anything more 3 about it because I felt that comments about Friant were 4 outside the scope of my rebuttal testimony. They bring up 5 other issues. 6 MEMBER FORSTER: Okay. And I guess I had some other 7 questions about the study, but Mr. Brown handled them so I 8 won't repeat them. 9 C.O. STUBCHAER: Okay. Thank you. That concludes 10 the cross-examination of this -- Ms. Manza's rebuttal 11 testimony. 12 Do you have any redirect? 13 MR. BRANDT: No, Mr. Chairman. 14 C.O. STUBCHAER: Okay. You want to do the exhibits 15 now? 16 MR. BRANDT: That does conclude our rebuttal 17 testimony. And we'd like to introduce Exhibits -- DOI 18 Exhibits 103, 104, 105 and 106. 19 MS. WHITNEY: Mr. Stubchaer? 20 C.O. STUBCHAER: Yes, Ms. Whitney. 21 MS. WHITNEY: 103 also has 103-A and 103-B, 105 has 22 an attachment, 105-A. And I recommend that we accept 106, 23 if we accept it provisionally since we haven't received any 24 copies. 25 C.O. STUBCHAER: All right. Any objections to the CAPITOL REPORTERS (916) 923-5447 10623 1 receipt of these exhibits? 2 Mr. Nomellini. 3 MR. NOMELLINI: No objection. I want to remember to 4 offer Central Delta Water Agency Exhibit 29. 5 C.O. STUBCHAER: All right. Hearing no objections, 6 the DOI exhibits are accepted. 7 And your comment is noted and I'm sure copies will 8 be forthcoming. 9 Mr. O'Laughlin. 10 MR. O'LAUGHLIN: Wait. I didn't know if 11 Mr. Nomellini was making a specific offer to move that 12 Exhibit 29 into evidence yet. 13 MR. NOMELLINI: I so offer Central Delta Water Agency 14 Exhibit 29 into evidence. 15 C.O. STUBCHAER: That wasn't what you said before, 16 was it? 17 MR. NOMELLINI: Yeah. 18 MS. LEIDIGH: Yeah. 19 C.O. STUBCHAER: It was, oh, I missed it. I'm sorry. 20 I thought we were talking about the receipt of the copies. 21 Okay. Are there any objections to the receipt of 22 the Central Delta Water Agency? 23 Mr. O'Laughlin? 24 MR. O'LAUGHLIN: Yes. I object to the introduction 25 of evidence of Central Delta Water Agency Exhibit 29. It's CAPITOL REPORTERS (916) 923-5447 10624 1 hearsay evidence. It's compounded by further hearsay 2 evidence by Mr. Thabault. It does not fit under any of the 3 exceptions upon which the Board can use it as a basis for 4 rendering an opinion. And, furthermore, I believe it's 5 outside the scope of the rebuttal testimony. 6 C.O. STUBCHAER: Okay. Any other comments? 7 Mr. Nomellini. 8 MR. NOMELLINI: We've gone through this already, I 9 think my comments are on the record already and I just 10 re-reference them. 11 C.O. STUBCHAER: All right. Your objection is noted, 12 Mr. O'Laughlin. It's on the record. The exhibit will be 13 accepted and the weight given to it will be appropriate to 14 the exhibit as we discussed before. 15 MR. O'LAUGHLIN: Thank you very much, Mr. Chairman. 16 C.O. STUBCHAER: Now, tomorrow we will have 17 Mr. Hanson here at 9:00? 18 MR. GARNER: That's correct. 19 C.O. STUBCHAER: And we'll hear his rebuttal -- let's 20 see, that's rebuttal testimony then cross-examination and 21 possibly redirect and recross. And that, you hope, will be 22 finished by noon so he can get to Asilomar. 23 MR. GARNER: Hopefully, yes. 24 C.O. STUBCHAER: So tomorrow afternoon may be empty, 25 then, so to speak. And Thursday we'll have your three CAPITOL REPORTERS (916) 923-5447 10625 1 persons. 2 MR. O'LAUGHLIN: Yes, three persons and they'll be 3 called in order. And we should be able to finish them on 4 Thursday. So Phase II-A will be done on Thursday. 5 C.O. STUBCHAER: All right. And then we expect to 6 begin Phase VI on the 9th. Okay. Thank you. We're 7 adjourned. 8 (The proceedings concluded at 4:22 p.m.) 9 ---oOo--- 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 10626 1 REPORTER'S_CERTIFICATE __________ ___________ 2 3 STATE OF CALIFORNIA ) ) ss. 4 COUNTY OF SACRAMENTO ) 5 I, MARY R. GALLAGHER, certify that I was the 6 Official Court Reporter for the proceedings named herein, 7 and that as such reporter I reported in verbatim shorthand 8 writing those proceedings; that I thereafter caused my 9 shorthand writing to be reduced to typewriting, and the 10 pages numbered 10397 through 10626 herein constitute a 11 complete, true and correct record of the proceedings. 12 IN WITNESS WHEREOF, I have subscribed this 13 certificate at Sacramento, California, on this 11th day of 14 March, 1999. 15 16 ________________________________ MARY R. GALLAGHER, CSR #10749 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 10627