STATE WATER RESOURCES CONTROL BOARD PUBLIC HEARING 1998 BAY-DELTA WATER RIGHTS HEARING HELD AT 901 P STREET SACRAMENTO, CALIFORNIA TUESDAY, MARCH 9, 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 10872 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 10873 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 10874 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 10875 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 10876 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 10877 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 10878 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 10879 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 10880 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 10881 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 10882 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 10883 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 10884 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 10885 1 I N D E X 2 ---oOo--- 3 4 PAGE 5 OPENING OF HEARING 10888 6 AFTERNOON SESSION 10992 7 END OF PROCEEDINGS 11100 8 POLICY STATEMENTS: 9 ROGENE REYNOLDS 10894 10 CHARLES P. BUCARIA 10900 11 OPENING STATEMENTS: 12 FRED ETHERIDGE 10904 TIM O'LAUGHLIN 10907 13 JOHN HERRICK 10909 ROBERT MADDOW 10921 14 MICHAEL JACKSON 10930 J. MARK ATLAS 10939 15 JIM TURNER 10941 DAVID SANDINO 10948 16 MATTHEW CAMPBELL 10953 17 DIRECT EXAMINATION OF THE BUREAU OF RECLAMATION: 18 PANEL: 19 JOHN RENNING 10958 MICHAEL THABAULT 10994 20 DAVID ROBINSON 10999 21 DIRECT EXAMINATION OF THE DEPARTMENT OF THE WATER RESOURCES: 22 PANEL: 23 LARRY GAGE 10981 24 STEPHEN FORD 11053 ---oOo--- 25 CAPITOL REPORTERS (916) 923-5447 10886 1 I N D E X (Cont'd.) 2 3 DIRECT EXAMINATION OF THE DEPARTMENT OF FISH AND WILDLIFE SERVICE: 4 MARTIN KJELSON 11011 5 JAMES WHITE 11034 6 CROSS-EXAMINATION: 7 J. MARK ATLAS 11069 JOHN HERRICK 11077 8 9 ---oOo--- 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 10887 1 TUESDAY, MARCH 9, 1999, 9:00 A.M. 2 SACRAMENTO, CALIFORNIA 3 ---oOo--- 4 C.O. STUBCHAER: Good morning. Call the Bay-Delta 5 Hearing to order. Today we're starting a new phase of the 6 hearing and I'm going to read an opening statement into 7 the record. 8 This is the time and place for the commencement 9 of Phase VI of the hearing on the Bay-Delta water rights. 10 This hearing is being held in accordance with the Revised 11 Notice of Hearing dated May 6th, 1998. 12 I am Jim Stubchaer. With me today are Board 13 Member John Brown, Executive Director Walt Pettit. John 14 and I are cohearing officers. And assisting the Board at 15 the staff table are Barbara Leidigh, staff counsel; 16 Victoria Whitney, supervising engineer; and Tom Howard, 17 Assistant Division Chief, Division of Water Rights. 18 The purpose of this phase of the hearing is to 19 afford the parties an opportunity to present relevant 20 testimony, maps, charts, studies and other materials to 21 create an evidentiary record which will assist the Board 22 in making a determination on the third issue listed in the 23 May 6th, 1998, Revised Notice of Public Hearing. 24 The key hearing issue for Phase VI is: Should 25 the Board approve the petition changes of point of CAPITOL REPORTERS (916) 923-5447 10888 1 diversion under the Central Valley Project and State Water 2 Project permits? What terms and conditions, if any, 3 should be added to CVP and SWP permits under consideration 4 if the Board approves these changes? 5 The order of proceeding in this hearing is to 6 first take any new appearances of parties, then receive 7 general, that is applicable to all or several of the 8 hearing phases, oral policy statements from those who wish 9 to present only a policy statement. The Board will also 10 accept written policy statements. 11 A policy statement is a nonevidentiary statement. 12 It is subject to the limitations listed in the hearing 13 notice. Presenters of policy statements should fill out a 14 speaker card and give it to the staff at the front table. 15 After the general policy statements we will first hear 16 policy statements specific to Phase VI and then hear any 17 opening statements from parties who do not plan to present 18 a case in chief in Phase VI. 19 Next, we will hear the cases in chief of the 20 parties presenting evidence in Phase VI. Each case in 21 chief may be commenced with an opening statement. After 22 any opening statement, we will hear testimony from the 23 witnesses called by the party presenting the case in 24 chief, followed by cross-examination by other parties, 25 Board staff, and Board members. This procedure will be CAPITOL REPORTERS (916) 923-5447 10889 1 followed for each party presenting a case in chief. 2 Redirect testimony and recross-examination 3 limited to the scope of the redirect testimony will be 4 permitted. After all the cases in chief are completed the 5 parties may present rebuttal evidence addressing specific 6 case in chief evidence presented by other parties. 7 I encourage everyone to be efficient in 8 presenting their cases and cross-examination. Except 9 where we approve a variation, we will follow procedures 10 set forth in the Board's regulations and in the attachment 11 to the hearing notice entitled, "Bay-Delta Water Rights 12 Hearing Information Concerning Appearances by Parties." 13 We will use a timer to keep track of the time. 14 As usual the timer will be stopped during objections, 15 procedural points and other interruptions. All requests 16 to the Hearing Officer on behalf of a party should be made 17 at the lectern by the party's representative including 18 requests regarding the order of cross-examination of 19 witnesses. 20 Regarding cross-examination, each party will be 21 allowed up to one hour to cross-examine the witness or 22 panel of witnesses. At the end of the hour the 23 cross-examiner will be given the opportunity to make an 24 offer of proof as to the additional matters the 25 cross-examiner wishes to cover and to make an estimate of CAPITOL REPORTERS (916) 923-5447 10890 1 the time needed to complete the cross-examination. 2 If additional cross-examination is allowed after 3 an offer of proof, the cross-examiner may be requested to 4 stipulate to the amount of additional time needed. 5 We have observed that the order in which 6 cross-examiners are called makes a difference. Many of 7 the questions asked by late examiners are prompted by 8 previous cross-examination, even though they should not be 9 based on previous cross-examination. In the interest of 10 fairness we will continue to attempt to assign the order 11 of cross-examination in a random matter. We will not just 12 attempt, we will assign the order of cross-examination in 13 a random manner. 14 In order to prevent late requests to 15 cross-examine, parties who are not sure if they wish to 16 cross-examine should identify themselves when the Hearing 17 Officer asks, "Who wishes to cross-examine the panel?" 18 They then can be included in the order of 19 cross-examination. If they later determine it is not 20 necessary to cross-examine a panel, they can so state when 21 called. 22 Unless otherwise announced, we will schedule each 23 day of the hearing to begin at 9:00 a.m. and conclude at 24 4:00 p.m. with an hour for lunch and two 12-minute breaks 25 during the day. We will try to announce any changes in CAPITOL REPORTERS (916) 923-5447 10891 1 the schedule at least a day in advance. 2 We will call for each party's testimony and 3 relate cross-examination in the following order: 4 Department of Interior, Department of Water Resources, 5 Department of Fish and Game. We understand those three 6 parties may have a joint presentation. And, incidentally, 7 this order has been posted on our web site for some time. 8 They will be followed by the San Luis 9 Delta-Mendota Water Authority, Westlands Water District, 10 Environmental Defense Fund, County of Trinity, Tri-Valley 11 Kern-Tulare and Pixley Irrigation District, et al. 12 I would like to now invite any new appearances by 13 parties who have filed notices of intent to appear, but 14 have not previously appeared at this hearing. Are there 15 any? Yes, please identify yourself. 16 MR. RICHARDSON: Ken Richardson from Dooley Herr 17 and -- 18 C.O. STUBCHAER: Could you hear that, Mary? 19 THE COURT REPORTER: No, not all of it. Thank you. 20 C.O. STUBCHAER: Okay. Please, come forward so the 21 Court Reporter can get it. 22 MR. RICHARDSON: Ken Richardson from Dooley Herr and 23 Williams for the Cross Valley Canal Contractors. 24 C.O. STUBCHAER: Okay. Thank you. Anyone else? 25 MR. ATLAS: Mark Atlas for Tehama-Colusa Canal CAPITOL REPORTERS (916) 923-5447 10892 1 Authority. 2 C.O. STUBCHAER: Okay. Anyone else? 3 MR. BRANDT: Mr. Chairman, just for clarification, 4 Mr. Jim Turner will be representing the United States 5 Department of Interior during Phase VI. 6 C.O. STUBCHAER: All right. Got that. The Court 7 Reporter is present to prepare a transcript of the 8 proceedings. Parties wishing to have a copy of the 9 transcript must make their ordering arrangements with the 10 Court Reporter. 11 Copies of transcripts will be posted on the 12 Bay-Delta web site no sooner than 60 days after the Board 13 receives the transcript from the Court Reporter. The 14 Board staff also regularly posts updates on the status of 15 this proceeding on the web page and has recently posted a 16 list of accepted exhibits. The staff can give you the web 17 page address if you need it. 18 Are there any witnesses who are going to testify 19 during this phase who have not yet taken the oath? 20 Please, stand. Anyone else? Okay. Raise your 21 right hand, you promise to tell the truth in this 22 proceeding? 23 THE AUDIENCE: I do. 24 C.O. STUBCHAER: All right, you may be seated. At 25 this time we will hear any general policy statements. As CAPITOL REPORTERS (916) 923-5447 10893 1 previously stated, we will next hear the policy statements 2 for Phase VI. After that we will hear opening statements 3 from the parties who do not plan to present a case in 4 chief. 5 I have two cards for policy statements not a 6 party to the water rights proceeding, Mr. Reynolds -- or 7 I'm sorry, Ms. Reynolds, South Delta landowner. 8 Good morning. 9 ---oOo--- 10 POLICY STATEMENT 11 BY ROGENE REYNOLDS 12 MS. REYNOLDS: Good morning. At least you didn't 13 murder the pronunciation of my first name, thank you. 14 My name is Rogene Reynolds, I live at 4444 West 15 Undine Road. That's a Stockton address. It's one mile 16 north of Old River just west of the split between San 17 Joaquin and Old River. My family has farmed in that 18 region since 1880. 19 I'm here today because you have heard from our 20 official representatives on an ongoing basis from both 21 South and Central Delta Water Agencies about the effect of 22 the State Water Project and the CVP and the decisions that 23 you have made, how they effect our water quality. 24 I guess I'm here to tell you what I think you 25 should do. I believe that -- you're laughing, but I'm CAPITOL REPORTERS (916) 923-5447 10894 1 kind of nervous. I've testified many times but not before 2 you. 3 C.O. STUBCHAER: That's fine. 4 MS. REYNOLDS: I grew up riding the levees where I 5 live. Before the projects kicked in in the '60s, you 6 couldn't forge Middle River on your pony. Now, Middle 7 River in the summertime has areas where it's maybe two or 8 three feet deep. 9 In the '30s and the '40s we pulled salmon out of 10 Middle River, three feet long. You don't find them that 11 size anymore. Now, all of the levees were there, the land 12 was all reclaimed before the '60s. It all had been done 13 by the 1930s. So the problems that we are having with our 14 water quality and our water depth in the South Delta are 15 due directly to the operations of the projects. That is 16 what has changed. 17 As a Board I will like your policy from here 18 on -- and I'm expecting that you thought you were doing so 19 up to this point -- to cover some important areas and 20 keeping in mind in all of your decisions your actions 21 should be those that encourage the full rewatering of the 22 San Joaquin so that the pump diversions don't create the 23 low flows and poor water quality that we live with right 24 now. 25 Your policy should be to rewater that San CAPITOL REPORTERS (916) 923-5447 10895 1 Joaquin, because that's one -- the Friant Dam diversions 2 are one of those that have created our problems in the 3 South Delta. Your policy should be to encourage the 4 highest water quality in the South Delta that you can. 5 And now for an even more important reason than it 6 was done previously, and that is that we're going to be 7 required in the South Delta to meet some CalFed goals for 8 salt and bromide and other issues. And we can't do it by 9 ourselves. We have no control. 10 And if we don't meet those water quality goals 11 then we will be facing an isolated facility. And those of 12 us that live in the Delta believe that that will further 13 degrade our water. So your policy should be aimed at the 14 very highest water quality in that South Delta region. 15 I think that your actions should not allow 16 conflict between programs. I think you should resolve 17 that conflict and do it quickly before programs are in 18 place, and I'm specifically referring to the differences 19 between VAMP and the San Joaquin River Agreement. And I 20 think that whichever agreement or program demands the 21 highest water quality should be the one that you should 22 encourage from your level. 23 And I think that your Board policy should be 24 overall this whole state of California to develop projects 25 that develop the supply of water in this state. We are CAPITOL REPORTERS (916) 923-5447 10896 1 allocating our resources and reallocating them, but we are 2 not developing our resources. And what you do here is 3 going to affect the population of the state for the next 4 hundred years. 5 I think that your Board action should be those 6 that ensure that if there is joint operation of the CVP 7 and the SWP projects, which is now being contemplated, 8 that those two entities and programs be held to the 9 highest standards. I see a lot of conflict in the 10 testimony and the records of these proceedings. 11 It's easy to say, "Well, you can't appeal that 12 issue here, because that's a CVP issue, you have to sue 13 the Bureau, or take your problem to the Bureau." And I 14 think here those problems should be solved. And I'm not 15 an attorney, but I think that you do have some ability to 16 solve those problems here and hold those two projects to 17 the highest standards. 18 If the water quality of the South Delta isn't 19 improved, the people there cannot farm successfully. The 20 water level is too low, the salt content is too high. It 21 affects our crops, it affects our livelihood. And there 22 isn't any reason why we should have to suffer negative 23 impacts because of diversions that go to benefit other 24 areas. 25 Do you have any questions? CAPITOL REPORTERS (916) 923-5447 10897 1 C.O. STUBCHAER: Questions of Ms. Reynolds? 2 Mr. Brown. 3 C.O. BROWN: The water level, vertical turbine pumps 4 pumping out of the river, is that the issue and the water 5 level is falling below the bowls of the pumping units? 6 MS. REYNOLDS: There is that problem. And it's 7 exacerbated by the fact that we can't dredge those rivers. 8 We have a 45-day window to complete work, we can't even 9 get a dredging crew out there to do small projects. 10 C.O. BROWN: But is the water level dropping such 11 that you lose prime and -- 12 MS. REYNOLDS: It can happen, sure. Absolutely. 13 C.O. BROWN: Is it happening? 14 MS. REYNOLDS: Well, not in a high water year like 15 1997, but it certainly can happen, yes. 16 C.O. BROWN: In drier years. 17 MS. REYNOLDS: Sure, it creates a lot of problems. 18 C.O. BROWN: Thank you, Mr. Chairman. 19 C.O. STUBCHAER: Ms. Forster. 20 MEMBER FORSTER: Thank you. I was smiling because 21 it was so refreshing. 22 C.O. STUBCHAER: No reflection on the other parties, 23 you understand. 24 MS. REYNOLDS: I have to talk to our counsel about 25 his forthrightness. CAPITOL REPORTERS (916) 923-5447 10898 1 MR. BIRMINGHAM: Please do. 2 MEMBER FORSTER: I'd like you to extend a little bit 3 on the comment that you made, you can't dredge, you have 4 45 days. 5 MS. REYNOLDS: Our reclamation districts are charged 6 with maintaining our channels. There is a particular 7 window of time that you can do that, it has to do with 8 disturbing habitat. We have to apply for permits, 9 sometimes the permits will sit on the desks of whoever 10 makes the decision for months on end. 11 If you could envision the Delta 30 years ago, 12 there were any number of dredge companies available to use 13 for the reventment work either rocking or creating 14 barriers for your pump stands, installing pumps, whatever 15 your work was. And it takes a special kind of person, 16 ability to do that. 17 Those crews aren't there anymore, because the 18 work is so erratic and unpredictable, you know, it's 19 placed a real burden on the reclamation districts to do 20 the work that they're supposed to do. There's only a 21 limited amount of time. 22 MEMBER FORSTER: Thank you. 23 C.O. STUBCHAER: Okay. Thank you for your 24 statements, Ms. Reynolds. 25 MS. REYNOLDS: Thanks for the time. CAPITOL REPORTERS (916) 923-5447 10899 1 Mr. Bucaria, if I pronounced that correctly. 2 Good morning. 3 ---oOo--- 4 POLICY STATEMENT 5 NORTHERN CALIFORNIA COUNCIL, FEDERATION OF FLYFISHERS 6 BY CHARLES P. BUCARIA 7 MR. BUCARIA: Good morning. You did a beautiful 8 job. Charles Bucaria, I live at 7441 Center Parkway here 9 in Sacramento. I'm Conservation Vice-president for the 10 Northern California Council of the Federation of 11 Flyfishers. We've not -- we are not parties to this 12 proceeding, but we certainly have an interest in it. And 13 that interest, I think, has been brought to the forefront 14 as a result of the National Marine Fishery Service's 15 designation of steelhead as a threatened species in the 16 Central Valley Project area -- or in the Central Valley 17 area. 18 We are particularly concerned about the San 19 Joaquin, because even though in my cursory review of the 20 San Joaquin Agreement, I lost count of the number of times 21 that chinook salmon or smolts or references to salmon in a 22 variety of ways took place. I saw no reference whatsoever 23 to steelhead. 24 The fact is that the Department of Fish and Game 25 has provided a number of evidences to National Marine CAPITOL REPORTERS (916) 923-5447 10900 1 Fishery Service of the existence of steelhead in a 2 majority of the tributary streams to the San Joaquin, 3 including the main San Joaquin below the confluence of the 4 Merced, certainly the Tuolumne, the Mokelumne, the 5 Stanislaus, the major tributaries. 6 With the fact that you are dealing with an -- a 7 listed species, it would seem logical that your policies 8 should recognize the effects these actions you are going 9 to be taking upon that listed species. And I'd like to 10 particularly point to a series of weaknesses that I 11 perceive in my amateurish reading of your documents and my 12 limited knowledge of some of the geographic areas that are 13 considered here. 14 The San Joaquin Agreement fails to recognize the 15 full current and historic range of populations of 16 steelhead that exists, have existed and potentially can 17 again exist within the drainage. 18 While the needs of salmon are considered, the 19 EIR/EIS fails to account for the fact that steelhead 20 summer over in these rivers and streams. They need cooler 21 temperatures and a regular flow of water during the 22 summertime in order to be able to survive. If they fail 23 to have that, then the species could become extinct in the 24 valley, and that's a potential tragedy. 25 There are no obligations placed on the CAPITOL REPORTERS (916) 923-5447 10901 1 responsible federal, state or local agencies to fund 2 studies related to steelhead enhancement, improve water 3 quality and habitat conditions, nor to set population 4 goals for steelhead restoration. 5 There are no plans to restore salmon or steelhead 6 populations above river obstructing barriers, nor to 7 provide for their downstream migration over these man-made 8 barriers, whether we're talking about Friant, whether 9 we're talking about New Melones, whether we're talking 10 about any of the river barriers that have been created, 11 including those down below the main stem of the Merced as 12 it meets the river. 13 And by the way, in the documentation by Fish and 14 Game it was shown by their work that steelhead have been 15 trapped below that fish barrier. The EIR/EIS recognizes 16 and encourages salmon restoration while totally ignoring 17 that where salmon go steelhead will follow. So if the 18 salmon are improved and pulse flows are allowed and the 19 steelhead follow and their young summer over, those fish 20 are going to be adversely affected unless there are 21 provisions for adequate flows of cool water during the 22 rest of the year. 23 So this project has a potential for major impact. 24 The documentation is available to you in the Department of 25 Fish and Game. And we will urge you as volunteers, not as CAPITOL REPORTERS (916) 923-5447 10902 1 paid professionals, to do something for the steelhead in a 2 significant way as you certainly are providing for for 3 salmon. 4 I'd be happy to try to answer any questions. 5 C.O. STUBCHAER: Any questions of Mr. Bucaria? 6 C.O. BROWN: No. 7 C.O. STUBCHAER: Okay. Thank you very much for your 8 statement. 9 MR. BUCARIA: Thank you. 10 C.O. STUBCHAER: Before we proceed with the next 11 policy statement, I want to mention that copies of the 12 ruling on the redactions of the Trinity County testimony 13 are on the table out in the hall. 14 Next we will hear policy statements from parties 15 who do not intend to present a case in chief in Phase VI. 16 I have one card from Mr. Etheridge. Is there anyone else? 17 MR. O'LAUGHLIN: Policy statements or opening 18 statements? 19 MS. LEIDIGH: Opening statements. 20 C.O. STUBCHAER: Policy statements. 21 MS. LEIDIGH: Those are opening statements. 22 C.O. STUBCHAER: I'm sorry, okay. Opening 23 statements from parties who do not intend to present 24 testimony in Phase VI. 25 Would you give a card to Mr. Herrick, please. CAPITOL REPORTERS (916) 923-5447 10903 1 Mr. Etheridge, good morning. 2 ---oOo--- 3 OPENING STATEMENT BY EAST BAY MUNICIPAL UTILITY DISTRICT 4 BY FRED ETHERIDGE 5 MR. ETHERIDGE: Good morning, Chairperson Stubchaer, 6 Members of the Board and State Board staff. 7 For the record, I'm Fred Etheridge on behalf of 8 the East Bay Municipal Utility District. EBMUD 9 appreciates the opportunity to address the Board on this 10 permanent joint point petition of both the California 11 Department of Water Resources and the U.S. Bureau of 12 Reclamation. 13 EBMUD does not oppose the joint point petition, 14 but does want to make clear its concerns with the regarded 15 interrelationship between proposed operational changes to 16 meet water quality objectives for the Bay-Delta and 17 ongoing efforts to improve the salmon populations on 18 tributaries such as the Mokelumne River. Seasonal changes 19 in federal and state project operations while providing 20 improved conditions within the Delta for fisheries and 21 other resources can have adverse impacts upstream on the 22 Mokelumne River which can decrease Mokelumne River 23 anadromous fish abundance. 24 The Board is, therefore, urged to give 25 recognition as part of this and other proceedings to the CAPITOL REPORTERS (916) 923-5447 10904 1 environmental trade-offs associated with giving preference 2 to resource management activities which focus on 3 conditions in the Delta. What may be beneficial for 4 improving conditions in the Delta can run counter to 5 efforts to improve anadromous fishery production upstream. 6 As East Bay MUD explained in Phase IV of this 7 proceeding, the District has devoted substantial resources 8 towards improving and enhancing the fisheries in the 9 Mokelumne River, specifically the anadromous fishery 10 stocks in the river. 11 As explained by Mr. Vogel, these efforts include 12 over 30 different program elements such as gravel 13 enhancement to protect and enhance the Mokelumne fishery. 14 These fishery efforts rely on the production of juvenile; 15 in other words, salmon and steelhead fry and smolts from 16 the river, to accomplish the goals of building and 17 maintaining the Mokelumne River population abundance. 18 Juvenile and fall-run chinook salmon outmigrate 19 from the Mokelumne River from January to June. While 20 returning adult salmon enter the Delta into the Mokelumne 21 River during the fall. 22 Our concern is that state and federal project 23 operations, particularly in the make-up pumping which 24 is -- which would be allowed under joint point and under 25 the Water Quality Control Plan have the potential to CAPITOL REPORTERS (916) 923-5447 10905 1 adversely impact the Mokelumne River salmon by increasing 2 the strain of the returning adult salmon and impacting 3 outmigrating fry. 4 As to the adults, the high volume flows of 5 Sacramento River water through the Delta cross-channel 6 during fall months can obscure the olfactory and 7 hydrologic cues that the adult salmon rely upon to find 8 their way back to their stream, the Mokelumne River. And 9 this can contribute to low attraction of returning adult 10 salmon to the Mokelumne River. 11 And as to juveniles, under the various 12 alternatives that were reviewed in the State Board's Draft 13 EIR, will be make-up pumping in January and in some years 14 a significant portion of Mokelumne River's entire salmon 15 population outmigrate as fry in January. So that the 16 increased make-up pumping in January could impact those 17 outmigrating fry. 18 So that the impacts of increased pumping on fry 19 together with impacts on returning adult salmon should be 20 considered by the State Board. East Bay MUD is working 21 collaboratively with CalFed and the State Water Project 22 and the Central Valley Project export interests to develop 23 programs to assess the impacts of joint points of 24 diversion and realtime operations on all fall-run salmon 25 in the Central Valley including the Mokelumne River CAPITOL REPORTERS (916) 923-5447 10906 1 population. 2 In conclusion, the State Board in granting 3 permission for increased Delta exports as part of joint 4 point, we believe the State Board should consider the 5 impacts upon the Mokelumne River salmon populations and 6 give recognition to the resulting trade-off. In other 7 words, for the greater good of the Delta you may decide to 8 approve joint point because it can protect Delta species, 9 but at the same time of taking that action to recognize 10 there may be an adverse impact on the Mokelumne River 11 population. And our concern is just that that impact be 12 acknowledged and recognized by the State Board. 13 Thank you. I'd be happy to answer any questions. 14 C.O. STUBCHAER: Questions of Mr. Etheridge? Thank 15 you, Mr. Etheridge. 16 MR. ETHERIDGE: I do have copies for Board staff of 17 my policy statement. 18 C.O. STUBCHAER: Very good. Mr. O'Laughlin, or 19 Mr. Robbins? Both? 20 MR. O'LAUGHLIN: No, just me. 21 C.O. STUBCHAER: Okay. 22 ---oOo--- 23 OPENING STATEMENT BY THE SAN JOAQUIN RIVER GROUP AUTHORITY 24 BY TIM O'LAUGHLIN 25 MR. O'LAUGHLIN: Good morning, Chairman, Board CAPITOL REPORTERS (916) 923-5447 10907 1 Members, staff. Tim O'Laughlin representing the San 2 Joaquin River Group Authority and its member agencies. 3 We did not submit a case in chief for Phase VI. 4 We have no opposition to joint point going 5 forward. It's an integral part of the San Joaquin River 6 Agreement, it's a necessary part. However, pursuant to 7 the State Water Resources Control Board's notice for the 8 hearing, we reserve our rights to cross-examine and/or 9 dispute joint point if we -- the San Joaquin River 10 Agreement is not adopted and we go to Phase VIII. 11 Secondly, if it is permissible by the Chair, we 12 have a policy statement that we've been working on with 13 other parties. We would like to submit that policy 14 statement, unfortunately it's not completed today. We 15 were wondering if by the next -- I think it's Tuesday -- 16 if we could make a policy statement at that time. We're 17 not presenting a case in chief. 18 C.O. STUBCHAER: When you say, "submit a policy 19 statement," are you talking about something in writing? 20 MR. O'LAUGHLIN: No. It will be an oral statement. 21 C.O. STUBCHAER: Are there any objections from 22 anyone to hearing an oral statement? You say Tuesday, 23 next week. 24 MR. O'LAUGHLIN: Tuesday next week. It is a policy 25 statement only and it's on Phase VI only. CAPITOL REPORTERS (916) 923-5447 10908 1 MR. NOMELLINI: As long as anyone else might want to 2 take advantage of the same opportunity, would have the 3 right to do so, I have no objection. 4 C.O. STUBCHAER: Time-out a minute. 5 (Off the record from 9:32 a.m. to 9:34 a.m.) 6 C.O. STUBCHAER: Back on the record. 7 Mr. O'Laughlin, we will allow you to make the 8 policy statement tomorrow, but not next Tuesday. 9 MR. O'LAUGHLIN: Thank you, Chairman Stubchaer. 10 C.O. STUBCHAER: Mr. Herrick. Good morning. 11 ---oOo--- 12 OPENING STATEMENT BY SOUTH DELTA WATER AGENCY 13 BY JOHN HERRICK 14 MR. HERRICK: Good morning, Mr. Chairman. Thank 15 you. Board Members, John Herrick for the South Delta 16 Water Agency. I think my opening statement might have a 17 little policy statement bleed into it, but I think that's 18 okay. 19 C.O. STUBCHAER: They are combined. 20 MR. HERRICK: Just make sure I'm not stepping on 21 anyone. 22 As we've said in each of the other phases as they 23 started, South Delta Water Agency believes that prior to 24 going forward, the Federal Government's participation in 25 this process should require it to submit to the CAPITOL REPORTERS (916) 923-5447 10909 1 jurisdiction of the courts that would be up to review this 2 process, if necessary. It's fundamentally unfair that one 3 of the parties, in fact, the main party to this process 4 can pick and choose whether or not it can be sued in 5 court. 6 Getting to the joint point issue, the South Delta 7 Water Agency believes that joint point pumping for the 8 benefit of fish and to maximize the exports to the export 9 interests could be worked out, but we oppose it at this 10 time because the focus is backwards. 11 The idea of joint point is to try to lessen any 12 effects, if not in fact, mitigate them on the export 13 interests which are the junior most water right holders. 14 The efforts of this proceeding should be lessening the 15 effects on other senior water right holders from the 16 implementation of the entire program. 17 The EIR -- I didn't write the page down -- talks 18 about the unavoidable adverse effects on water quality at 19 Vernalis resulting from adoption from certain parts of the 20 alternatives and it labels that an unavoidable significant 21 effect. I don't think we should be trying to figure out 22 how we can find a way to not have affects on exports if 23 we're having unmitigateable effects on the other 24 objectives in the plan. 25 Any pumping in the South Delta, including the CAPITOL REPORTERS (916) 923-5447 10910 1 joint point pumping, should be subject to the protection 2 of Delta diverters as all of them are superior in water 3 right priority. Statutes such as Delta Protection Act 4 require that an adequate supply be provided at no charge 5 to Delta diverters. 6 The history of joint point, at least from 1995, 7 has shown that there's been a preference given to the 8 exports, the export interests. In the consideration of 9 working that out South Delta has opposed the joint point 10 pumping at every time and we don't believe that the 11 decision to authorize it has taken our issues into 12 consideration. 13 The South Delta Water Agency showed in these 14 proceedings that joint point pumping harms them. That 15 means that there is something wrong with the way that 16 we're working it out. The process right now as 17 contemplated by the parties proposing this is to approve 18 sort of a wide range of joint point pumping opportunities 19 and to let some other process outside of the State Board's 20 purview to decide when and how to do joint point. 21 That process will not be a public one. Although, 22 people might be able to go to those meetings, they will 23 decide when and how. And then it becomes incumbent on the 24 South Delta to monitor these outside proceedings and rebut 25 conclusions by that process. CAPITOL REPORTERS (916) 923-5447 10911 1 Now, the joint point is being sold as a method of 2 protecting fish. And, indeed, the fishery agencies will 3 have a veto power over this proposed unspecified joint 4 point pumping plan in the future. They have a veto power 5 because they're trying to protect fisheries. There is no 6 veto power given to those entities trying to protect 7 superior water right holders. 8 We believe that the evidence will show by the 9 proponents as well as the DEIR that we have in these 10 proceedings that no body has matched up low water levels 11 to harm in the South Delta in any sort of analysis, but we 12 know that that harm has occurred and is continuing to 13 occur. 14 The barrier program, which is a method of 15 partially mitigating the adverse effects of the export 16 pumps on the South Delta, is not in place. We are 17 struggling through the temporary barrier program. And we 18 are certainly having negotiations trying to get to the 19 permanent barrier program, but we're not there. 20 It is premature on the part of this Board to 21 authorize additional export pumping -- and by that I mean 22 at some times there would be more than there would have 23 been before -- whether it's a net increase or not is 24 irrelevant. But we should not be authorizing an increase 25 in pumping at any time of the year until we protected CAPITOL REPORTERS (916) 923-5447 10912 1 those people who are even now being harmed by the export 2 pumping operations. 3 The process that would allow some outside group 4 to develop a plan without the veto power of the people who 5 are being harmed doesn't seem fair. As I said, once this 6 CalFed Ops group, or No Name Group, or some offshoot of 7 them develops this plan, it becomes the South Delta's 8 burden in a very short amount of time to show to your 9 Board that it is wrong and that it shouldn't go forward. 10 We simply can't survive under those conditions. 11 We will fail. Recent joint point procedures showed that 12 based on convenience for various staffs, I had one day to 13 work out their problem. It's not fair to do it and I 14 don't think the Board should defer its authority to this 15 outside process. 16 This same decision-making authority as you'll 17 recall from the prior testimony is the unnamed group of 18 people who decided to tie open the South Delta barriers so 19 that they could accomplish fishery improvements. Now, 20 again, that is not a fair way to do it. If Alex 21 Hildebrand or myself don't get notice or is unable to show 22 up at one of these meetings that's deciding these things, 23 that's it, it gets done. 24 Anyway, we believe the joint point could be 25 worked out, but not until South Delta's problems are CAPITOL REPORTERS (916) 923-5447 10913 1 solved. And so therefore we recommend that joint point 2 not be adopted by this Board. 3 C.O. STUBCHAER: All right. 4 MR. HERRICK: Thank you very much. 5 C.O. STUBCHAER: Thank you, Mr. Herrick. 6 Any questions for Mr. Herrick? Ms. Forster. 7 MEMBER FORSTER: Mr. Herrick, I'm not sure at this 8 moment if this is possible, but what if the State Board 9 named the South Delta as a party that we thought should be 10 on the decision-making team for the joint point, would 11 that take away your opposition to it? 12 MR. HERRICK: Assuming that the South Delta Water 13 Agency had some sort of veto power over the Ops Group or 14 whatever group is deciding this, that would go a long way 15 to making it acceptable to us. 16 However, the basic idea is that we shouldn't be 17 authorizing additional pumping at any time until we're 18 sure that the people that are harmed by existing pumping 19 are protected. The barrier program has not been 20 completed, adopted function. So even if we had the veto 21 power, it's a continual struggle then of us against 22 everybody else, and the pressures to accomplish joint 23 point pumping, as we know, are very great. 24 The word comes down that we have to do it now. 25 There's a lot of water, we don't want to do it later. CAPITOL REPORTERS (916) 923-5447 10914 1 Somebody else doesn't want you to do later, now's the 2 time. So, then, again it becomes South Delta against the 3 world. 4 And I guess if we had some absolute veto power 5 that could address it, but we do not believe this further 6 authorization, this expansion of permits should occur 7 until the current harm resulting from current operations 8 under the permits is mitigated. 9 MEMBER FORSTER: Can you explain to me when you said 10 "They tied open the barriers," I don't have a good 11 understanding of what you meant? 12 MR. HERRICK: In 1997 the Head of Old River Barrier, 13 I believe it was only in a short time because of the high 14 flows, but the three Delta barriers were installed 15 pursuant to their permits when they were supposed to. 16 Generally, this is very generally, they're supposed to 17 start operating January 1st after the pulse flow -- excuse 18 me, June 1st after the pulse flow. 19 Because Delta smelt -- a certain number of Delta 20 smelt were showing up at the pumps or being taken, and the 21 Bureau wanted to ramp up its exports from the low point 22 during the pulse, they wanted to ramp them up, this No 23 Name Group or some other group decided that in order to 24 allow pumping to increase during the time frame from May 25 15th through I believe June 15th, in order to allow CAPITOL REPORTERS (916) 923-5447 10915 1 pumping to go up, they would tie open the barriers so the 2 barriers wouldn't supposedly shift salmon into the pumps. 3 So even though the pumps were the cause of the 4 harm to the Delta smelt, or a threatened harm, the 5 mitigation of the barriers to the South Delta -- excuse 6 me, the mitigation of the export pumps to the South Delta 7 was interrupted. Now, we didn't have any notice of that. 8 There was an issue of whether or not some e-mail got sent, 9 or Alex was not able to show up. The bottom line is: We 10 aren't there and we didn't know about it until after it 11 happened. But some group granted the authority, somehow 12 decided to do that. 13 Now, whether that's perfectly okay under ESA law 14 or something, I don't know, but that's not a way to run 15 this. The mitigation for the pumps and the barriers 16 shouldn't stop the mitigation to increase the pumping. 17 That doesn't make sense. 18 MEMBER FORSTER: So how did that harm South Delta 19 when they did that? 20 MR. HERRICK: Without the barriers operating the 21 drawdown of water levels caused by the increasing federal 22 pumps lowers the water levels in the channel. 23 MEMBER FORSTER: Thank you. 24 C.O. STUBCHAER: Mr. Brown. 25 C.O. BROWN: With the barriers in place, the CAPITOL REPORTERS (916) 923-5447 10916 1 temporary barriers or the permanent ones that would be 2 decided on later, that would mitigate this concern that 3 you have as far as pumping water levels in the South 4 Delta? 5 MR. HERRICK: Generally, yes. And I say "generally" 6 because there's all sorts of other issues which we'll get 7 into when the panel gets up here. But there are diverters 8 downstream of the barriers -- 9 C.O. BROWN: Yes. 10 MR. HERRICK: -- who are provided zero protection by 11 the barriers. And there are current proposals by other 12 groups, I believe it's CalFed Ops Group, which will change 13 the basic premises for the barriers operating. 14 C.O. BROWN: You made the statement that without the 15 barriers, or without some sort of control, "We will fail." 16 What did you mean by that? 17 MR. HERRICK: If we're not allowed to affect the 18 process in a meaningful manner, we will continue to suffer 19 the effects of the larger interests of the state in 20 seeking to accomplish that. Now, that's not evil, that's 21 not mean, that's not bad on their part, but it's a large 22 group of interests with a lot more money and time and 23 people to spend their time on to address these issues. 24 So if we get 7 days, if we get 14 days to respond 25 to numerous modeling runs, statements and evidence CAPITOL REPORTERS (916) 923-5447 10917 1 submitted by the proponents to, say, the CalFed Ops Group, 2 "Here, everything is fine," we just can't fight that. We 3 may be totally perfectly right, but we can't fight it in a 4 short time frame in front of a non-public forum like that. 5 C.O. BROWN: What I'm trying to do here, 6 Mr. Herrick, is get a handle on the magnitude of what 7 you're talking about when you say, "We will fail." I 8 suspect that you will fail administratively toward 9 addressing the issue. 10 My concern lies within the agricultural 11 production activity of the South Delta itself. As a 12 agricultural community do you lose a crop? Do you put on 13 80 or 90 percent of the required consumptive use 14 requirement of your crop because of the lower pumping 15 levels and therefore you have less production? 16 I understand the salinity, but the pumping water 17 level and the supply, has the farming community suffered 18 crop loss or failure in the Delta because of prior 19 activities, joint pumping or whatever? 20 MR. HERRICK: I mean I understand that. That's a 21 good question. It's not -- it's not a fact that granting 22 joint point results in a shutdown of South Delta 23 agriculture. It's not that extreme. But for the past 15 24 years we've been arguing and negotiating with DWR and USBR 25 to address that water level problem. CAPITOL REPORTERS (916) 923-5447 10918 1 The barrier program is a 40 million dollar 2 program -- it's more than that, but those two parties 3 acknowledged, we believe, that it is that great of a 4 problem that they need to go forward to cure it. 5 C.O. BROWN: Here's my point: If you'll, please, 6 excuse me for interrupting you, but I want to make sure 7 you understand my concern -- is that if you're a farmer 8 out there and you don't have the last 10 percent of the 9 water required to meet the total consumptive use 10 requirement, there goes your profit. And that's a major 11 concern, obviously, in the farming community. 12 If on the other hand, what you're talking about 13 is an additional pumping water level that requires 14 additional kw's in order to move the water from the source 15 to the distribution area and you're talking about the 16 additional expense to do this, or to change the bowls out 17 to where you have a pumping unit incapable of doing that, 18 that's a different concern. And they're a magnitude 19 apart. So I kind of want to get in the ballpark of what 20 you're talking about here. 21 MR. HERRICK: Yes. There's no body of evidence 22 showing a dollar amount or percentage decrease over the 23 past, whatever, 20 years resulting from lowered water 24 levels. We don't have that data, because it is very 25 specific to point and timing -- CAPITOL REPORTERS (916) 923-5447 10919 1 C.O. BROWN: If you'll permit again, please, and I 2 apologize for interrupting you, but I'm trying to zero in 3 on a concern here. Have you lost a crop, or have you had 4 a partial crop loss because of such activities in the 5 past? 6 MR. HERRICK: I don't know of a specific instance 7 that I can point to, but it's not a question of a crop 8 loss. It is a question of somebody determining: If I'd 9 been able to irrigate when I needed to, would my yield 10 have been different? That's almost impossible to 11 calculate, because you don't know what your yield would 12 have been if the crop had gotten all of the water to which 13 it was entitled. 14 C.O. BROWN: Yeah. 15 MR. HERRICK: I can tell you that even in the last 16 three years of wet years there are people that have been 17 unable to irrigate when they decided that their crop 18 needed it. 19 C.O. BROWN: If it's a matter of convenience, again, 20 that's one concern. If it's a matter of convenience and a 21 little extra cost, or extra cost because of increased 22 pumping levels, that's a concern. But if you lost a crop 23 that's a different magnitude. And that's what I want to 24 know, if you have that information. 25 MR. HERRICK: I don't have that information. I CAPITOL REPORTERS (916) 923-5447 10920 1 would like to say that our diverters don't look at it on 2 that, shall we say, even-handed -- with a view like that. 3 Our diverters call us up and say, "Why can't I pump out of 4 Old River, it's dry," or "My gate valve on Grantline Canal 5 is above the water level now, why can't I irrigate?" 6 It's very difficult to determine the exact effect 7 of that. But that burden should lie with the people who 8 are causing the harm, not with us. Now, we understand we 9 have to put forward our case on various issues when the 10 time comes, but the people causing that harm should cure 11 that harm, not say it's not really a big harm. We are the 12 superior water right holders. 13 C.O. BROWN: Thank you, Mr. Chairman. One parting 14 thought on it is that it might be helpful if you could 15 quantify that part, if you haven't already done so, so we 16 can get an idea of the magnitude. 17 Thank you, Mr. Chairman. 18 C.O. STUBCHAER: All right. Any other questions? 19 Thank you, Mr. Herrick. 20 MR. HERRICK: Thank you. 21 C.O. STUBCHAER: Mr. Maddow. Good morning. 22 ---oOo--- 23 OPENING STATEMENT BY CONTRA COSTA WATER DISTRICT 24 BY ROBERT MADDOW 25 MR. MADDOW: Good morning, Mr. Stubchaer, Members of CAPITOL REPORTERS (916) 923-5447 10921 1 the Board, I'm Robert Maddow appearing today on behalf of 2 the Contra Costa Water District. I prepared an opening 3 statement, which I had intended to pass out today and I 4 discovered, much to my chagrin, about 11:30 last night 5 that in the last transcription something got dramatically 6 changed so I'm going to submit a written version of this 7 statement later on this week and I'll supply copies to all 8 parties. I apologize for not being as well prepared as I 9 should be. 10 Contra Costa Water District believes that it 11 could see an effect in both regard to the quantity and 12 quality of its water supply as a result of your decisions 13 concerning the joint point. We don't rise to oppose it, 14 we never opposed it. However, we have always taken the 15 position that you need to be cognizant of the effects of 16 the fact that joint point can have impacts on a variety of 17 water right holders and parties throughout the Delta. And 18 those impacts need to be mitigated. 19 We've raised a number of these issues in a number 20 of ways in various parts of the hearing. Contra Costa has 21 water quality concerns with regard to its Rock Slough 22 intake and the new intake for the Los Vaqueros system 23 located on the river depending on the timing of the 24 proposed joint point uses. Contra Costa water -- the 25 quality of Contra Costa's water available at those intakes CAPITOL REPORTERS (916) 923-5447 10922 1 could be impacted. 2 That could be a concern during dry periods. 3 Depending upon timing, it could have to do when water is 4 available for refilling the Contra Costa Reservoir. In 5 fact, Contra Costa has had to make unanticipated uses of 6 its Los Vaqueros water for blending purposes and because 7 of joint point operations there might not be water 8 available to refill at times which otherwise would have 9 been available. 10 Any actions that can lead to the redirection of 11 impacts, the types of impacts the joint point is intended 12 to try to avoid, yet, there is a redirection of impacts to 13 others, those types of impacts should be mitigated. 14 That's the kind of point we've been trying to make in a 15 number of phases of the hearing and it's a point that we 16 are concerned about here. It's, in many respects, similar 17 to some of the issues raised by Mr. Herrick in his 18 statement on behalf of the South Delta. 19 Contra Costa's concerns in this regard have to do 20 with the Old River and Rock Slough intakes. Contra Costa 21 also has a diversion point at Mallard Slough. And there 22 are a number of Contra Costa's customers who have their 23 own diversion points who can have an impact in terms of 24 quality if, for example, joint point operations cause a 25 change in the location of X2. There could be quality CAPITOL REPORTERS (916) 923-5447 10923 1 degradation which could have an impact on when Contra 2 Costa could use certain of its water supplies that are 3 available to it. 4 We've raised this issue a number of times in the 5 past, for example, with regard to those aspects of joint 6 point which have been dealt with in previous orders where 7 the Board has indicated that in allowing joint point 8 operations to take place you're using your change 9 authority. And, in fact, you're not going to allow 10 changes that adversely effect any legal user of water. 11 Contra Costa thinks that's the type of protection that 12 needs to be included as you go forward, should you approve 13 the joint point petition. 14 These issues have been raised by Contra Costa. 15 They have also been referenced in some of the papers that 16 have been submitted by the Bureau and the Department in 17 support of their petition and we appreciate that. 18 Again, there are the potentials for quality 19 impacts and quantity impacts. We think that both fall 20 within the no-injury standard. We are concerned about 21 water quality impacts in a couple of ways. 22 In particular, Contra Costa, of course, is 23 principally an M&I diverter and believes that the State 24 Board should be thinking in terms of impacts on M&I 25 customers when it looks at the water quality impacts of CAPITOL REPORTERS (916) 923-5447 10924 1 operation pursuant to the joint point petition. And, in 2 fact, adverse drinking water quality impacts are among 3 those types of impacts that are subject to mitigation, we 4 believe. 5 And, then, finally, we are aware of the fact that 6 there's still some uncertainty about the exact operation 7 criteria that would be used for the joint point operation 8 should they be approved. And we anticipate that there 9 will be further modeling, perhaps, further review of 10 and -- elaboration on what those criteria will be. 11 We urge the Board to make certain that any 12 further water quality analysis in the operating criteria 13 that these protective considerations with regard to 14 mitigation of impacts on others be given a high priority. 15 As I say, we will submit a more detailed version 16 of this opening statement for the record. I apologize for 17 not having it available today. We will supply that to all 18 parties. I'd be happy to take any questions. 19 C.O. STUBCHAER: Thank you, Mr. Maddow. 20 Questions? Mr. Brown. 21 C.O. BROWN: You take water out of Rock Slough, 22 right? 23 MR. MADDOW: Correct. 24 C.O. BROWN: And Rock Slough is about how far from 25 the X2? CAPITOL REPORTERS (916) 923-5447 10925 1 MR. MADDOW: Oh, God -- 2 C.O. BROWN: Would you guess? 3 MR. MADDOW: I hesitate to hazard a guess, 4 Mr. Brown. I just can't do it in terms of mileage, I'm 5 sorry. I'd have to be looking at a map and I just don't 6 have those numbers in my head. 7 C.O. BROWN: All right. Are you concerned that the 8 X2 is going to move significantly to where it could cause 9 a quality degradation at Rock Slough? 10 MR. MADDOW: Yes, and in particular Old River. 11 There are circumstances in which Old River could also be 12 impacted. 13 C.O. BROWN: Do you have an idea of what distance 14 you're concerned with, how much it could move? 15 MR. MADDOW: I don't have that information in my 16 head, Mr. Brown, but the water district can provide that, 17 the technical people. Unfortunately, none of those 18 technical people are with me today, but we could provide 19 that information. 20 C.O. BROWN: And, then, Mr. Maddow, your pumping 21 unit at Rock Slough, is that subject to much head 22 differential in the section site? Is that a problem as 23 far as supply is concerned? Have you had supply concerns 24 before due to the change in pumping water levels within 25 the Delta where you can't meet the deals? CAPITOL REPORTERS (916) 923-5447 10926 1 MR. MADDOW: The concern has not been so much in 2 terms of water level fluctuations as it has been in 3 whether or not the water that is available is of a quality 4 that could be used by the Water District. And it's this 5 combination of quality and quantity. 6 C.O. BROWN: Okay. So you're more concerned with 7 quality than the quantity? 8 MR. MADDOW: Certainly, yes. 9 C.O. BROWN: And then the quality becomes a concern 10 with the movement of X2 and the increase of pumping 11 demands on the joint points? 12 MR. MADDOW: Yes. 13 C.O. BROWN: Okay. Thank you, Mr. Maddow. 14 C.O. STUBCHAER: Ms. Leidigh. 15 MS. LEIDIGH: Yes. I just had one suggestion and 16 that is that, perhaps, rather than providing new 17 information for the record, which parties might want to 18 cross-examine on, that Contra Costa could point out in the 19 record where that information is located, because I 20 suspect that it is located in the record already 21 someplace. 22 MR. MADDOW: I believe that that's correct, 23 Ms. Leidigh. And I appreciate the suggestion. Perhaps, 24 rather than go back and simply correct the error that I 25 detected last night in the statement will take a little CAPITOL REPORTERS (916) 923-5447 10927 1 more time and make a reference in our opening statement, 2 if we may do so, to those portions of the record which 3 would point to the quantification matters that Mr. Brown 4 asked about. Would that be acceptable? 5 C.O. STUBCHAER: We've rec -- don't go away, 6 Ms. Forster has a question. 7 MR. MADDOW: Fine. 8 C.O. STUBCHAER: We recognize that these are policy 9 statements. In fact, statements that you make to us 10 during a policy statement, even in answer to Board 11 questions, have no weight. 12 MR. MADDOW: I understand. 13 C.O. STUBCHAER: Yes. Ms. Forster. 14 MEMBER FORSTER: When decisions are made by an ops 15 group to accommodate this joint point, are you given 16 plenty of notice? Do you sit on such a group? 17 MR. MADDOW: Contra Costa does have a number of its 18 technical staff who participate in a variety of those 19 activities. The No Name Group, I believe, they do have 20 knowledge of the activities of the CalFed Operations 21 Group. 22 I can answer in a general fashion by saying: To 23 my knowledge Contra Costa, I believe, generally does have 24 adequate notice, because it does understand the importance 25 of paying close attention to these various activities. CAPITOL REPORTERS (916) 923-5447 10928 1 I will attempt to ascertain whether there have 2 been instances in which there have been concerns about 3 that issue. And if I find that there are such concerns, 4 I'll find a way in which to bring that before the Board in 5 a way in which we could be cross-examined if that should 6 be necessary. 7 But at this point, I'm not aware of the types of 8 problems which Mr. Herrick talked about which the South 9 Delta has encountered. And that, perhaps, is because in 10 Contra Costa's case they do have a large technical staff 11 that is very much focused on these types of issues. And 12 it may just be that they have more people that can be in 13 the right place at the right time to get the right notice. 14 MEMBER FORSTER: Mr. Herrick said it was a nonpublic 15 meeting. But these are all public agencies, so they must 16 be public meetings. 17 MR. MADDOW: I've not participated in those meetings 18 myself, Ms. Forster, so I can't comment on that. 19 MEMBER FORSTER: Thanks. 20 C.O. STUBCHAER: And, Mr. Maddow, I referred to your 21 opening statement earlier as a policy statement, I 22 apologize. Let the record show I was referring to your 23 opening statement. 24 MR. MADDOW: Thank you, Mr. Stubchaer. 25 C.O. STUBCHAER: Mr. Jackson. Good morning. CAPITOL REPORTERS (916) 923-5447 10929 1 ---oOo--- 2 OPENING STATEMENT BY THE 3 REGIONAL COUNCIL OF RURAL COUNTIES 4 BY MICHAEL JACKSON 5 MR. JACKSON: Good morning, Mr. Chairman. Michael 6 Jackson for the Regional Council of Rural Counties. RCRC 7 favors the present limited operation of the joint point of 8 diversion. We believe that the present operation is 9 beneficial because it can provide operational experience 10 in terms of trying to balance exports with fishery 11 protection. 12 We believe that the present operation of the 13 joint point may provide some limited benefit to the water 14 exporters and some limited benefit to the fishery agencies 15 in terms of operating in realtime. And as such, we 16 believe that the Board's decision in 95-6 and 98-9 to 17 allow this operational flexibility is a good idea. 18 What you have before you today, however, is 19 something completely different. You have the request, 20 although it is still sketchy, in my opinion, in the 21 record, the request for some open-ended premature 22 expansion of joint point based upon the fact that CalFed 23 will take care of it. As if CalFed was somehow an 24 adjudicatory night crew for the State Board; that, 25 essentially, your job was to approve, based upon the fact CAPITOL REPORTERS (916) 923-5447 10930 1 that this greater wisdom, somewhere, will solve a problem 2 that has kept the joint point hung up since 1985 through 3 numbers of Boards and numbers of hearings. 4 In my opinion, that's outside the Board's 5 authority to prematurely approve such a request. But it's 6 also flies in the face of all of the evidence that this 7 Board has heard since 1985. 8 Basically, RCRC has about seven problems with the 9 present request for the open-ended expansion of the joint 10 point. The first is, as we pointed out, that anything 11 that relies on CalFed figuring out what to do later is 12 speculative. In fact, if we'd been here in the middle of 13 last year most folks from CalFed would have told you that 14 CalFed was going to choose an alternative that moved the 15 location of the pumps, or at least split the diversion to 16 the pumps. 17 Somewhere in the course of the last year CalFed 18 learned that moving the pumps wouldn't be a great help and 19 consequently did not choose that as their preferred 20 alternative. At this stage of the CalFed process, we are 21 a year away from CalFed actually approving a preferred 22 alternative. And to speculate now on what that may be, 23 based upon our present understanding, would fly in the 24 face of the last year's history as to what is likely that 25 CalFed will do. CAPITOL REPORTERS (916) 923-5447 10931 1 Also, RCRC opposes anything at the pumps that has 2 the ability to lessen water quality in the South Delta for 3 senior water right holders including the Contra Costa 4 Water District, the South Delta Water Agency and the 5 Central Delta Water Agency. 6 And the reason is both fundamental fairness to 7 those senior water right holders and to the idea that 8 water quality is the emerging issue in terms of municipal 9 supply and may be the emerging issue in terms of Delta and 10 San Joaquin agriculture. And we don't have enough 11 information in regard to the effects of that increase in 12 exports to water quality. 13 If you examine the present status of your EIR, 14 there is nothing in it that indicates that we would expect 15 that there would be no water quality impact. I perused 16 it, as best I could, each time that it's been changed, and 17 I find nothing in there to support the position that there 18 will be no impact to Delta agriculture or to Contra 19 Costa's water quality. 20 The selfish reason for RCRC to worry about Delta 21 interests' water quality is that if you approve, 22 prematurely in our opinion, an expansion of exports and if 23 you find that water quality and fish are affected thereby, 24 there's only one place you can look, and that's upstream 25 for more water. CAPITOL REPORTERS (916) 923-5447 10932 1 Now, our problem with looking upstream for more 2 water is that then areas within the watershed begin to 3 lose water to areas outside the watershed which in our 4 opinion is a direct violation of the area of origin 5 statutes within the Water Code. 6 And so for you to be asked to prematurely approve 7 an expansion of exports over and above what's allowed in 8 98-9, would in our opinion be a precommitment to make a 9 decision that more water from upstream is going to take 10 care of the water quality problems, the fishery's problems 11 created by the export facilities. 12 And we don't believe there's evidence in the 13 record at the present time that would allow that to happen 14 without substantial effects on senior water rights holders 15 both in the Delta and above the Delta. 16 The other reason that at this point we would 17 oppose an increase in exports is that until the Board has 18 decided what the flow alternatives are going to be, to 19 increase exports compounds the need for water from 20 upstream. And we have no idea whether that water, in this 21 proposal, is going to come from storage, the Bureau's 22 storage, in particular, or whether it's going to come from 23 the Bureau's chosen alternative for flow which is 24 Alternative 3 or 4, which takes the water from senior 25 water rights holders. CAPITOL REPORTERS (916) 923-5447 10933 1 We believe there's no public trust reason. And 2 that the evidence will indicate that there is no public 3 trust reason that would lead you to expand exports in 4 order to protect fish. And as I understand it, The only 5 way that you can determine to require more water from 6 upstream watershed senior water rights holders in order to 7 expand exports would be to find that the evidence is 8 inconvertible that such a decision would be favorable to 9 the trust. 10 And in this situation, because of entrainment, 11 because of water quality reasons, because of flow reversal 12 reasons, increase in export will harm the fish not benefit 13 the fish. So we do not believe that there will be a 14 public trust case made and we think the evidence as it 15 comes in will indicate that. 16 The last reason that we oppose an increase in 17 export over the present amount is that because the export 18 would take away the unused capacity in the state system, 19 the pumping system. And that capacity is critical to any 20 water transfer program that this state would develop. 21 Water transfers are going to require facilities 22 to transfer the water. The water as -- I mean, we've 23 concentrated on the San Joaquin side in this particular 24 hearing and we've all sort of disagreed back and forth 25 about what ought to happen, but I haven't had anybody tell CAPITOL REPORTERS (916) 923-5447 10934 1 me that there was a surplus of water on the San Joaquin 2 side to everybody's water needs to water quality and to 3 the fisheries. 4 Consequently, any water transfer program is 5 mostly going to be dependent upon water moving from the 6 Sacramento or the Sierra side of the Delta to the urban 7 areas south of the Delta. And by having the Federal 8 Government take up the unused capacity at the state pumps 9 and the timing by which you could export without water 10 quality and fisheries' effects we lose capacity on the 11 state pump. And, therefore, denigrate the ability to 12 solve some of California's water problems on both an 13 interim and long-term problem by water transfers. 14 So for all of those reasons, RCRC would support 15 the present operation of the joint point as long as it 16 does not increase exports. And we'd be perfectly willing 17 to see the Board look at that again if, in fact, CalFed 18 decides what it wants to do in the Delta. 19 But to do so now would be premature, would be a 20 violation of the Watershed of Origin Act, would harm legal 21 water rights holders and would take up the capacity for 22 transfer, which is one of the expected solutions to our 23 present mismatch between water available in the north and 24 water unavailable in the south. 25 So for those reasons, we believe that the CAPITOL REPORTERS (916) 923-5447 10935 1 evidence will show that the present operation is 2 preferable to any expansion of exports at this time. 3 C.O. STUBCHAER: Mr. Jackson, don't go away, 4 Mr. Brown has a question. 5 C.O. BROWN: Two questions, Mr. Jackson. X2, 6 obviously, moves depending upon the quantity of water 7 flowing out through the Delta. But if X2 did not move 8 upstream beyond a point that you felt was appropriate, or 9 we did, and we could hold X2 and there's additional water 10 going out through the Delta, would you, then, support the 11 joint points on that basis? 12 MR. JACKSON: If I could see an EIR analysis of the 13 fact that there is surplus water going outside the Delta, 14 that would certainly be an important thing. I do not find 15 that in your present EIR, nor have I seen that evidence in 16 anything that has been put forward as written testimony in 17 this particular hearing. 18 One of the things to remember about X2 is that 19 when Lowell Ploss testified in regard to X2, he indicated 20 that it's the operation of the pumps that has the quickest 21 effect on X2, one way or the other. 22 And so it seems to me that to simply authorize 23 the increase of the amount of water that can be exported 24 will have a very quick effect on X2. When you increase 25 the pumping you draw the X2 back essentially. And the CAPITOL REPORTERS (916) 923-5447 10936 1 only way to balance that is more water from senior water 2 rights holders upstream. 3 C.O. BROWN: You missed the question a little bit. 4 If X2 was held to the point that we think is reasonable in 5 order to maintain water quality, then the question is: 6 Would there be additional yield that could be 7 developed out of the Delta, which would be in addition to 8 what the yield already is, and then the follow-up question 9 on that -- keep that in mind. 10 MR. JACKSON: I have that in mind. 11 C.O. BROWN: -- this follows into it: Wouldn't it 12 be better to have yield developed in that manner and to 13 use the capacity of the California Aqueduct to move it as 14 opposed to transferring or moving water existing out of 15 the areas of origin? 16 MR. JACKSON: If there was additional water that 17 could be made available from the Delta by the operation of 18 the pumps that did not require water from the area of 19 origin, we will be supportive of such an idea. 20 I do not presently believe that there is evidence 21 that that is possible. Based upon the record in this case 22 it seems clear to me that it's -- there's only two ways to 23 deal with X2: It's more water in flow or less water in 24 export. At the present time, it is not clear to me that 25 there is additional water available for flow that is not CAPITOL REPORTERS (916) 923-5447 10937 1 being used by senior water rights holders upstream. 2 C.O. BROWN: Maybe we all will see, then, through 3 the testimony to be given if there is additional yield 4 that could help us all in making that determination. 5 MR. JACKSON: We're all interested in additional 6 yield. It's why there has been so much support in my area 7 of the state for looking at sites reservoirs, for looking 8 at long-term solutions that aren't dependent upon a 9 zero-sum gain of transferring water from one place to 10 another. But those things are not done yet and we are at 11 the present time where you're being asked to sort of 12 speculate that there can be additional yield developed 13 without harming anyone who has a prior superior right. 14 C.O. BROWN: Thank you, Mr. Jackson. 15 Thank you, Mr. Chairman. 16 C.O. STUBCHAER: Anyone else? Mr. Del Piero. 17 MEMBER DEL PIERO: Your contention remains, however, 18 that those issues raised by Mr. Brown still need to be 19 evaluated in the definitive sense in the environmental 20 document? 21 MR. JACKSON: There is no question about it. The 22 environmental document need to take a look at each of the 23 issues I raised before there is any approval so that we 24 can see what the impacts are. And I do not find it in the 25 environmental document at the present time. CAPITOL REPORTERS (916) 923-5447 10938 1 MEMBER DEL PIERO: All right. 2 C.O. STUBCHAER: Thank you. 3 Mr. Atlas. Good morning. 4 ---oOo--- 5 OPENING STATEMENT BY TEHAMA-COLUSA CANAL AUTHORITY 6 BY MARK ATLAS 7 MR. ATLAS: Good morning, Mr. Chairman. My name is 8 Mark Atlas. I haven't had the opportunity to be here 9 before, and so as something of an introduction I'm an 10 attorney in Willows, about 85 miles north of here. I 11 represent the Tehama-Colusa Canal Authority, which itself 12 represents CVP contractors who receive water through the 13 Tehama-Colusa and Corning canals in the Sacramento Valley. 14 The Canal Authority is a party to this hearing. 15 We're going to present a case in chief in Phase VII. We 16 have not prepared and do not intend to present a case in 17 chief in Phase VI. And we have no opposition, 18 necessarily, to the petition for a joint point of 19 diversion. We reserve our right, however, to 20 cross-examine witnesses. 21 Our issue has to do with the United States' 22 promises that we got for decades that they would provide 23 an adequate Central Valley Project water supply to its 24 Sacramento Valley contractors in recognition of its area 25 of origin obligations. And that the United States would CAPITOL REPORTERS (916) 923-5447 10939 1 only export water outside of the Sacramento Valley that 2 was surplus. 3 Congress confirmed this obligation when it 4 authorized construction of the TC Canal. Reclamation has 5 honored these promises more in their breach. There are a 6 number of TC contractors who are short of contract supply. 7 And the Bureau says that there's nothing they can do about 8 it, the only thing those contractors can do is develop 9 their own water rights through an application process 10 here, develop their own projects, et cetera. 11 The irony of that is that those contractors have 12 tied their destinies, if you will, to the Central Valley 13 Project. And they have no financial ability to develop 14 their own projects at this point. And as you know, 15 probably better than I and our contractors, all of the 16 cheap and easy water sites are already taken. 17 To the extent that joint point of diversion might 18 increase in valley exports, then we think that the relief 19 prayed for should be conditioned in such a way that 20 Reclamation is required to meet its area of origin 21 obligations, not only to future water rights applicants 22 but also to its existing Sacramento Valley contractors. 23 Is there any questions? 24 C.O. STUBCHAER: Any questions of Mr. Atlas? Okay. 25 Thank you for your statement. CAPITOL REPORTERS (916) 923-5447 10940 1 MR. ATLAS: Thank you. 2 C.O. STUBCHAER: Are there any other opening 3 statements of parties not presenting evidence in this 4 phase? Seeing none we will now take our morning break for 5 12 minutes. 6 (Recess taken from 10:20 a.m. to 10:37 a.m.) 7 C.O. STUBCHAER: Call the hearing back to order. 8 Mr. Turner, you want to present your panel or 9 your witnesses? 10 MR. TURNER: Yes. 11 C.O. STUBCHAER: Good morning. 12 ---oOo--- 13 CASE IN CHIEF FOR THE DEPARTMENT OF THE INTERIOR 14 BY JIM TURNER 15 MR. TURNER: Thank you, Mr. Stubchaer. Good morning 16 Mr. Chairman, Members of the Board. I'm James E. Turner, 17 the acting deputy regional solicitor for the Department of 18 the Interior here in Sacramento. I will be appearing on 19 behalf of the United States Department of Interior in this 20 phase of the proceeding in place of Alf Brandt. 21 I'd like to begin by confirming the statement you 22 made a little earlier, Mr. Stubchaer, that the Department 23 of the Interior, the California Department of Water 24 Resources and the California Department of Fish and Game 25 would like to appear in this phase of the proceeding, CAPITOL REPORTERS (916) 923-5447 10941 1 essentially, as one party. 2 We are going to be presenting a joint proposal to 3 the Board and so we would like to all appear jointly, 4 which we feel will facilitate the presentation of the 5 appropriate evidence and be able to make it clear to both 6 the Board and all of the other parties that we all are 7 talking of a joint proposal to which we all agree. 8 In light of that, the procedure that we would 9 like to recommend is that I complete my opening statement, 10 that Mr. Sandino, on behalf of the Department of Water 11 Resources would present his opening statement, then 12 Mr. Campbell on behalf of the Department of Fish and Game 13 would present his opening statement. 14 And we would then call the three departments' 15 witnesses in the following order: I would begin by 16 calling John Renning from the Bureau of Reclamation. 17 Mr. Sandino will then call Larry Gage on behalf of the 18 Department of Water Resources. I will then be presenting 19 Mike Thabault, David Robinson and Dr. Kjelson, the 20 remaining Department of Interior witnesses followed by Jim 21 White for the Department of Fish and Game and Steven Ford 22 as our final witness on behalf of DWR. 23 And then once all of those witnesses have 24 completed their direct testimony, we would be proposed to 25 be offering all of those witnesses as one panel. And, CAPITOL REPORTERS (916) 923-5447 10942 1 again, we're doing this because we feel that it would 2 certainly ease a lot of the complications that might 3 otherwise arise in cross-examination if each of the 4 departments appeared separately. 5 I understand that there have been situations in 6 the past, which I assume would occur in this situation as 7 well, where if each of the departments appeared 8 individually on cross-examination it might be necessary 9 for the various witnesses to say, "Well, that's something 10 I can't really respond to," and that someone from the 11 other departments might be the more appropriate witness. 12 In this case we would have the entire group here 13 and the panel would be able to select the witness or 14 witnesses on the panel who are most familiar with and can 15 most appropriately respond to the questions on 16 cross-examination. 17 So in light of that I would certainly prefer, if 18 at all possible, if the Board could ask all the parties 19 who are presenting questions on cross-examination, if they 20 would present their questions to the panel and then the 21 panel could certainly select the witnesses who could most 22 appropriately respond. 23 And I realize there may be certain questions that 24 some of the parties would like to present directly to one 25 or more of the witnesses about that Department's position CAPITOL REPORTERS (916) 923-5447 10943 1 or whatever, but I think the answers will be coming out 2 the same since we're talking about a joint approach to 3 this whole problem that has been discussed in great detail 4 among the three departments. 5 So if that procedure would be appropriate, I 6 would like to just go ahead and begin by just briefly 7 summarizing the testimony and recommendations that would 8 be presented on behalf of the panel. So would that 9 procedure be acceptable to the Board? 10 C.O. STUBCHAER: Mr. Turner, I think combining of 11 the witnesses and presenting the witnesses as a panel is 12 appropriate. We will have to be lenient on our time of 13 cross-examination because of the size of the panel and the 14 number of parties being represented. And usually we take 15 all of the cross-examination questions as questions to the 16 panel. However, if the cross-examiner wants a response 17 from a particular agency, I would permit that type of 18 question to be asked. 19 MR. TURNER: I can understand that, Mr. Stubchaer, 20 and I can understand why that may be appropriate in 21 certain situations. 22 C.O. STUBCHAER: All right. 23 MR. TURNER: I thank you very much. 24 C.O. STUBCHAER: Please, proceed. 25 MR. TURNER: As I mentioned earlier, I will begin by CAPITOL REPORTERS (916) 923-5447 10944 1 calling John Renning from the Bureau of Reclamation as our 2 first witness. And he is intending to present a brief 3 description as to the reasons why the Department of the 4 Interior wants to be able to divert water at both the 5 Tracy and Banks pumping plants. 6 He'll then describe the alternatives that were 7 discussed in the Draft EIR for the implementation of the 8 water quality control plan and the quantities of SWP and 9 CVP that could be diverted pursuant to each. 10 He'll then explain why the information that he is 11 presenting would support the joint request that is being 12 presented by the departments, and that is that Reclamation 13 and DWR be allowed to divert the CVP and SWP water, either 14 at Tracy or Banks pumping plants, up to the physical 15 capacity of those plants in accordance with an operation 16 plan to be developed through the CalFed process. 17 And while CalFed, while that operation plan is 18 being developed, through that process that the DWR and the 19 Bureau be allowed to continue to utilize the joint point 20 of diversion in accordance with what I think would most 21 accurately be described as Alternative 4 in the Draft EIR. 22 And that is that we will be making diversions for 23 deliveries of water to the Bureau's Cross Valley Canal 24 contractors to Musco Olives and the Veteran's Cemetery. 25 I understand that the Tracy golf course is no CAPITOL REPORTERS (916) 923-5447 10945 1 longer an intended beneficiary of those deliveries, so it 2 would be the other three that are mentioned in Alternative 3 3. 4 And then in addition, Alternative 4 says besides 5 those deliveries we would be continuing to implement the 6 joint point of diversion as has been approved in Board 7 Order 98-9. Then once that operations plan is developed 8 for the CalFed process, we would then commence diverting 9 in accordance with that plan. 10 Now, Mr. Renning will be pointing out one other 11 fact that we feel is appropriate for recognition by the 12 Board and that is the substance of the 4600 cfs limitation 13 in the Bureau permits with respect to diversions. We want 14 to explain to the Board, make it clear that we feel that 15 that is not a limitation on the total amounts, total 16 quantity of water the Bureau can divert from the Delta, 17 but is limited to the quantities that can be diverted at 18 Tracy in light of that pumping plant's capacity, 19 Once Mr. Renning is completed, then Mr. Gage will 20 provide the Board with an overview of the effects of the 21 proposed uses of the joint points of diversion on the 22 operations of both the CVP and the SWP. 23 I will then present Mr. Thabault and he will be 24 making the recommendation that the Board allow the two 25 projects to make interchangeable use of Tracy and Banks CAPITOL REPORTERS (916) 923-5447 10946 1 pumping plants up to their physical capacities in 2 accordance with the plan developed through the CalFed 3 process, but making it clear that that would be 4 conditioned on the recognition that the diversions would, 5 in fact, comply with all applicable federal and state laws 6 and regulations, including, but not limited to, the state 7 and federal Endangered Species Acts. 8 He will then describe the CalFed goal in 9 developing the operations plan that would not only be 10 consistent with applicable law, but will include some fish 11 protective measures and facilitate the meeting of other 12 CalFed objectives such as water quality and water supply 13 reliability. 14 I will then be calling Mr. Robinson who will 15 describe the relative environmental impacts of the various 16 joint point alternatives described in the Draft EIR for 17 implementation of the Water Quality Control Plan. 18 He will be followed by Dr. Kjelson who will 19 identify various matters that he feels should be 20 considered by CalFed when it is preparing the proposed 21 operations plan to ensure that the joint points of 22 diversion are used in a manner that is most beneficial to 23 fish. 24 Mr. White, from -- will then expand on 25 Mr. Renning and Mr. Thabault's descriptions of the CAPITOL REPORTERS (916) 923-5447 10947 1 Departments' recommendation. And in like Dr. Kjelson, 2 will identify some matters that he feels should be 3 considered in the CalFed process when it's preparing the 4 operations plan. 5 Finally, Mr. Ford will describe the fishery 6 benefits that will arise from the Board's approval of the 7 Departments' joint recommendation. So unless you would 8 have any specific questions, I will be prepared to start 9 calling the witnesses to present the direct testimony. 10 C.O. STUBCHAER: All right. I thought you were 11 going to allow opening statements. 12 MR. TURNER: I'm sorry, I forgot about the opening 13 statements. Mr. Sandino would like to make an opening 14 statement. Sorry. 15 C.O. STUBCHAER: That's all right. Join the club, 16 Mr. Turner. 17 Mr. Sandino. Good morning. 18 ---oOo--- 19 OPENING STATEMENT BY THE DEPARTMENT OF WATER RESOURCES 20 BY DAVID SANDINO 21 MR. SANDINO: Good morning. Maybe our opening 22 statement is not that important anyway. Good morning 23 Chairman Stubchaer, Members of the Board and staff, my 24 name is David Sandino appearing on behalf of the 25 Department of Water Resources. CAPITOL REPORTERS (916) 923-5447 10948 1 It is our pleasure today to appear before the 2 Board to recommend a joint point alternative in agreement 3 with both the Department of the Interior and Department of 4 Fish and Game. As we informed the Board last summer, we 5 were working with Interior, Fish and Game and stakeholders 6 to achieve a settlement for Phase VI. Our proposed 7 settlement was achieved after our original testimony was 8 submitted last July and represents months of efforts of 9 our agencies. 10 The alternative we are supporting today was 11 developed under the auspices of the CalFed Bay-Delta 12 Program and reflects another important consensus that has 13 been facilitated by the CalFed process. We concur with 14 the more detailed description of our joint point proposal 15 in the order of testimony provided by Mr. Turner and 16 Mr. Campbell in their opening statements. 17 In short, our joint point alternative would 18 authorize the Department and the Bureau to use each 19 other's facility as an interchangeable point of diversion 20 for all purposes up to their physical capacity regardless 21 of purpose of beneficial use, subject to any regulatory 22 restrictions imposed on the projects, such as through this 23 hearing and through the Endangered Species Act and subject 24 to limitations to protect legal users of water such as 25 those in the South Delta. CAPITOL REPORTERS (916) 923-5447 10949 1 As highlighted by Mr. Thabault's testimony, we 2 are proposing that before we would implement this type of 3 joint point, Interior, Fish and Game and the Department in 4 consultation with other CalFed agencies and stakeholders 5 would complete an operating plan that sets forth 6 conditions under which the combined use of the State Water 7 Project and Central Valley Project points of diversion 8 could occur. 9 This operating plan would be developed through 10 the public CalFed process and we are proposing that the 11 plan would be submitted to the Board's executive officer 12 to review for consistency with the final water right order 13 for this hearing. 14 In the event that the Board ultimately grants 15 joint point authorization as we have proposed, it is 16 important to bear in mind, of course, that any use by the 17 Bureau of Reclamation of SWP facilities or by the 18 Department of CVP facilities would be subject to consent 19 for such use by the entity owning the facilities. 20 For instance, if the Department were to use the 21 Bureau's pumping facilities we would need concurrence from 22 the Bureau before we would do so. Although it is the 23 intention of the CalFed agencies to complete a joint point 24 operating plan as quickly as possible and submit it to 25 this Board, we recognize the actual date in which this CAPITOL REPORTERS (916) 923-5447 10950 1 will occur is not certain. It will depend in part how 2 quickly CalFed will be able to complete its EIR in Phase 3 II of this program. The ultimate type of joint point plan 4 that is to be submitted to the Board thus is tied to the 5 CalFed solution in the Bay-Delta. 6 In the interim, we recommend that the Board adopt 7 Alternative 4 which reflects water rights Order 98-9, 8 limited authorization of joint point for fishery 9 protection purposes. As we envision it, as soon as a 10 joint point operating plan is complete and approved by 11 this Board, the joint point authorization underwater 12 rights Order 98-9 would end and would be replaced by the 13 joint point use proposed by the CalFed agencies in their 14 operating plan. 15 In terms of how our proposal today relates to the 16 Board's Draft EIR, the Draft EIR has listed a range of 17 alternatives describing different types of joint point 18 use. Alternative 4, as we mentioned, describes our 19 current operating situation approximately under Water 20 Rights Order 98-9. Alternatives 5, 6, 7, 8 describe 21 expanded joint point use roughly in ascending order of 22 flexibility depending on the type of use, regulatory 23 operation limitations and facilities. 24 For example, Alternative 8 is the joint point 25 alternative with the least restrictions and assumes Delta CAPITOL REPORTERS (916) 923-5447 10951 1 facility improvements through the Department's South Delta 2 Program. Whichever joint point we ultimately recommend to 3 the Board in our operation plan, the scope of the joint 4 point and the environmental impacts are already discussed 5 in the Board's EIR in our view. 6 In other words, our operation plan will 7 ultimately recommend a joint point to the Board that will 8 fall somewhere between Alternative 4 and Alternative 8. 9 In support of our proposal today, the Department will 10 present testimony by Larry Gage, chief of operations 11 control office of the Department and Steve Ford 12 environmental program manager in our department's 13 Environmental Services Office. 14 Both Mr. Gage and Mr. Ford have given testimony 15 in front of this Board on several other occasions 16 involving Bay-Delta matters. Mr. Gage will testify about 17 project operational advantages associated with joint 18 point. 19 These benefits include a modification of San Luis 20 operations to increase water supply, changes in export 21 operation to reduce take of listed species, transfer of 22 projects, storage withdrawals and changes in export 23 operations to protect fisheries during pulse flows, and 24 finally temporary emergency operations that could benefit 25 from joint point authorization. CAPITOL REPORTERS (916) 923-5447 10952 1 Mr. Ford will testify about environmental 2 advantages associated with joint point. Specifically, 3 Mr. Ford will testify about differences in fish 4 entrainment between the CVP and SWP Delta pumping plants, 5 seasonal differences in fish abundances, shifting points 6 of diversion to help reduce the number of predators, 7 management of aquatic weeds, and finally reduction of fish 8 loss rates due to joint point. 9 To summarize, the Department of Water Resources 10 supports a joint point up to the ability of a project's 11 physical capacity subject to an operating plan developed 12 by Interior, Department of Fish and Game and the 13 Department of Water Resources under the CalFed umbrella, 14 because we believe it will give us a better tool to 15 enhance water supply and environmental benefits and to 16 avoid impacts to legal water users in the South Delta. 17 That concludes our opening statement. 18 C.O. STUBCHAER: Thank you, Mr. Sandino. 19 Mr. Campbell. Good morning. 20 ---oOo--- 21 OPENING STATEMENT BY THE DEPARTMENT OF FISH AND GAME 22 BY MATTHEW CAMPBELL 23 MR. CAMPBELL: Good morning, Mr. Chairman, Members 24 of the Board and staff. Deputy Attorney General Matthew 25 Campbell appearing on behalf of the State of California CAPITOL REPORTERS (916) 923-5447 10953 1 Department of Fish and Game. 2 As stated in the hearing notice in Phase VI of 3 these proceedings the Board will consider the request of 4 the U.S. Bureau of Reclamation and the California 5 Department of Water Resources to use joint points of 6 diversions for their water export facilities in the 7 southern Delta. 8 Joint points is not a new concept. Pursuant to 9 Orders 95-6 and 98-9 the Bureau and DWR may utilize joint 10 points, but only for fishery benefits and with no increase 11 in exports. Through their petition the Bureau and DWR 12 seek to utilize joint point as a means to increase the 13 operational flexibility of the CVP and the State Water 14 Project and thereby to maximize water supply reliability 15 for their contractors. 16 However, the Department of Fish and Game and the 17 U.S. Fish and Wildlife Service, state and federal agencies 18 charged with protecting public trust resources, have long 19 recognized that certain methods of export facility 20 operations, including unconditional use of joint points, 21 cause negative impacts to Delta fisheries including 22 species protected by the state and federal Endangered 23 Species Act. 24 Fortunately, the Bureau, DWR, DFG and the U.S. 25 Fish and Wildlife Service through the CalFed Bay-Delta CAPITOL REPORTERS (916) 923-5447 10954 1 Program found a means to resolve the operational 2 flexibility goals and fishery resources concerns 3 associated with the project's proposed expanded use of 4 joint points of diversion. 5 This is the first important and productive 6 intersection between the Bay-Delta Water Rights Hearing 7 and the CalFed process. Consequently, those agencies are 8 appearing before you today in Phase VI to present and 9 substantiate a joint proposal through a coordinated panel 10 of witnesses on how to proceed with approval of joint 11 points of diversion. 12 You will hear testimony from Bureau and DWR 13 witnesses, respectively John Renning and Larry Gage, 14 regarding the hydrologic operational and water supply 15 aspects of the joint proposal for joint points. 16 From DFG and U.S. Fish and Wildlife Service 17 biologist Jim White and Dr. Martin Kjelson, respectively, 18 you will hear about the need to minimize risk to Delta 19 fisheries including the spring-run salmon recently listed 20 by the State of California Fish and Game Commission under 21 the California Endangered Species Act, from increased 22 exports associated with any expanded use of joint points. 23 David Robinson from the Bureau will testify as to 24 the adequacy of the Board's environmental documentation to 25 support the multi-agency joint points proposal. Steve CAPITOL REPORTERS (916) 923-5447 10955 1 Ford of DWR will tell you about some potential benefits to 2 Delta fisheries from joint points. 3 Although each of these witnesses will address 4 joint points from a different perspective, they all share 5 a common theme of coordination and cooperation in the 6 joint proposal. The joint proposal itself will be fully 7 explained in the testimony of Mike Thabault of the U.S. 8 Fish and Wildlife Service. 9 He will testify regarding the role of the CalFed 10 Bay-Delta Program in reaching and executing the joint 11 proposal. Mr. Thabault will report on the work of 12 diversion effect on the fishery team, otherwise known as 13 DEFT, the No Name Group which includes CalFed agencies and 14 Delta stakeholders such as Delta farmers, water 15 contractors and the environmental community. And he will 16 tell you about the DEFT No Name Group coordination team. 17 In summary the joint proposal developed through 18 that process is as follows: 19 The Bureau, DWR, Department of Fish and Game and 20 the U.S. Fish and Wildlife Service join in seeking the 21 Board's approval for the project's interchangeable use of 22 export facilities up to the physical capacities of those 23 facilities subject to one important condition. 24 The Bureau and DWR must defer actual 25 implementation of joint point of diversion -- of expanded CAPITOL REPORTERS (916) 923-5447 10956 1 use of joint point diversion until they submit an 2 operating plan that has been developed and adopted under 3 the CalFed process. The plan must comply with federal and 4 state laws and regulations including the state and federal 5 Endangered Species Act. 6 It will also have criteria for fish protection 7 and operating rules and measures to meet other CalFed 8 goals and objectives such as water quality and water 9 supply reliability. The condition is the reason the 10 Department of Fish and Game is part of and fully supports 11 the joint proposal. 12 The Department of Fish and Game expects that the 13 joint point operations plan will fully address impacts to 14 Delta fisheries including those discussed in the expert 15 opinions of Jim White and Dr. Kjelson. 16 In closing, DFG believes that the agencies' joint 17 proposal for joint points is an important step toward a 18 productive teamwork problem-solving approach to California 19 difficult water supply and environmental protection 20 issues. 21 Thank you. 22 C.O. STUBCHAER: Thank you, Mr. Campbell. 23 And before we bring up the witnesses, Mr. Turner, 24 I'd just like to restate that the purpose of oral 25 testimony is to summarize the written testimony which has CAPITOL REPORTERS (916) 923-5447 10957 1 previously been submitted and distributed to the parties. 2 Oral testimony should not go beyond the scope of the 3 written testimony. 4 And there is a 20-minute limit per witness to 5 present their summary of the written testimony. And that 6 20-minute limit will be enforced. 7 With that, Mr. Turner, please bring your 8 witnesses forward. 9 MR. TURNER: Thank you I'd like to begin by calling 10 John Renning from the Bureau of Reclamation. 11 C.O. STUBCHAER: Good morning, Mr. Renning. 12 MR. RENNING: Good morning. 13 ---oOo--- 14 DIRECT EXAMINATION OF THE BUREAU OF RECLAMATION 15 OF JOHN RENNING 16 BY JIM TURNER 17 MR. TURNER: Mr. Renning, could you please state 18 your full name for the record. 19 MR. RENNING: My name is John A. Renning. 20 MR. TURNER: And by whom are you employed? 21 MR. RENNING: I'm employed by the United States 22 Bureau of Reclamation. 23 MR. TURNER: And were you responsible for preparing 24 or overseeing the preparation of revised Exhibit 10 that 25 was submitted on behalf of the Department of the Interior? CAPITOL REPORTERS (916) 923-5447 10958 1 MR. RENNING: Yes, I was. 2 MR. TURNER: And are you familiar with or did you 3 prepare the exhibits that are filed along with that 4 written testimony? 5 MR. RENNING: Yes, I did. 6 MR. TURNER: And if you will now, please, summarize 7 that written testimony in those exhibits. 8 MR. RENNING: Okay. My name is John Renning. I am 9 a civil engineer witwh the Bureau of Reclamation. I'm 10 part of a Reclamation Department of Water Resources team 11 that developed and completed studies to evaluate 12 alternatives for implementing the joint point of diversion 13 and its environmental effects. 14 This team worked closely with staff of your 15 Division of Water Rights to ensure consistency in 16 assumptions, analysis methods and outputs. I helped 17 prepare a draft chapter which was subsequently used by 18 Board staff to prepare Chapter 13 of the Draft EIR. 19 My objective today is to summarize the results of 20 the studies and to present other pertinent information. I 21 will be referencing Department of Interior Exhibit Numbers 22 10-B through 10-WW. I will not be covering all of my 23 written testimony. I will not be covering temperature 24 studies or other processes involving joint point of 25 diversion, but will, of course, address any questions you CAPITOL REPORTERS (916) 923-5447 10959 1 may have. We have overheads of all of the exhibits if 2 questions arise. I will be showing several exhibits 3 during my summary. 4 The CVP's Tracy pumping plant has a capacity of 5 4600 cfs. Historically the operational constraints on the 6 Tracy Delta-Mendota Canal portion of the CVP system were 7 such that water supply demands could be met unless the 8 basic water supply was also a constraint. 9 The historic constraints permitted flexibility in 10 the operation of this portion of the system so that 11 maintenance and repair work could be performed without 12 significantly affecting the CVP's ability to meet water 13 supply demands. However, changes in the regulatory 14 environment have eliminated that flexibility and reduced 15 the capability of the CVP to meet water supply demands. 16 At present, the Tracy pumping plant is generally 17 operated either at its full capacity or the maximum 18 capacity imposed upon it by terms of the Endangered 19 Species Act or the 1995 Water Quality Control Plan. 20 The SWP's Banks pumping plant has a capacity of 21 6600 cfs or 10,400 cfs under certain permitted conditions. 22 At certain times of the year and under certain operational 23 conditions, this total capacity is generally not in use by 24 the SWP. Therefore, at those times this capacity at the 25 Banks pumping plant is available and could be used by the CAPITOL REPORTERS (916) 923-5447 10960 1 CVP. This is the basic concept of the joint point of 2 diversion. 3 In the late 1970s and early 1980s the need for 4 the CVP to use capacity on the SWP system was recognized 5 and petitions for temporary use were filed with the Board. 6 At the request of the Board a petition to permanently 7 address this issue thereby negating the need for temporary 8 actions was filed on December 7th, 1981. This request was 9 also included in the petition for consolidated place of 10 use on September 24th, 1985. 11 Because of the increasingly restrictive 12 conditions placed upon the project's operations by the 13 Endangered Species Act and the 1995 Water Quality Control 14 Plan, which has resulted in a reduction of the projects 15 deliveries, particularly those of the CVP, it was widely 16 suggested that the joint point of diversion be pursued as 17 a measure to regain lost water supplies while still 18 meeting all otherwise applicable environmental protection 19 measures without the construction of any new facilities. 20 The joint point of diversion alternatives are 21 designed to incrementally increase the quantity of CVP 22 water wheeled by the CVP -- pardon me, wheeled by the SWP. 23 These alternatives show the full range of use of the joint 24 point of diversion from no use, Alternative 2, to what may 25 reasonably be considered maximum use, Alternative 8. CAPITOL REPORTERS (916) 923-5447 10961 1 We believe that this EIR and the information and 2 studies contained within it and the technical appendices 3 will support approval of the joint point of diversion. 4 That approval at this time would be for the joint point of 5 diversion as shown in Alternative 4. As other facilities 6 are approved and constructed, your approval of the joint 7 point of diversion would allow use of the joint point of 8 diversion as shown in Alternatives 5, 6, 7, 8 or 9. 9 Other witnesses appearing for CalFed agencies 10 have proposed that use of joint point of diversion beyond 11 that permitted by Order 95-6 or, now, Order 98-9 and the 12 concepts in that order be predicated on the submittal and 13 review by the Board of an operations plan developed as 14 part of the first phase of CalFed. Reclamation joins in 15 that proposal. 16 As noted above, use of the joint point of 17 diversion will allow the CVP to recover some of its lost 18 water supplies, or to say it differently, to increase the 19 capability of the CVP to export more water to meet its 20 water supply demands. Such demands can be agricultural, 21 urban or environmental. 22 For the purposes of the studies to evaluate joint 23 point of diversion alternatives it was assumed that in 24 terms of priority of demands met, that the Cross Valley 25 Canal contract would be met first. The additional CVP CAPITOL REPORTERS (916) 923-5447 10962 1 water exported above that would be used to reduce the 2 shortages imposed primarily on agricultural and 3 environmental demands. 4 Table 13-1 in the Draft EIR summarizes annual 5 average water deliveries and changes to water deliveries 6 for each of the alternatives. We have shown this table as 7 two charts, DOI Exhibits 10-C and 10-D. 8 The alternatives are compared against Alternative 9 2, i.e., no use, which is necessary to distinguish the 10 effect of the joint point of diversion from that that 11 occurs with the implementation of the Water Quality 12 Control Plan. 13 Alternative 8 shows the greatest increase in 14 annual average CVP deliveries, 247,000 acre-feet. The 15 increase in deliveries under Alternative 5 through 9 are 16 135, 99, 153, 247 and 45,000 acre-feet, respectively. 17 This table and charts show the deliveries of the 18 SWP and the effective use of the joint point of diversion 19 on their deliveries. 20 MR. GAGE: You're moving along too fast. 21 MR. RENNING: I'm sorry. I believe we're on 10-D 22 overhead. The effect, that being the effect on the SWP is 23 minimal. And we would expect that under actual operations 24 there would be no effect on the SWP. 25 Obviously, if use of the joint point of diversion CAPITOL REPORTERS (916) 923-5447 10963 1 did effect the SWP, its use would not be allowed by DWR. 2 Table 13-2 in the Draft EIR summarizes the amount of CVP 3 water that the SWP will be able to divert through the 4 joint point of diversion. We have shown this as DOI 5 Exhibit Number 10-E. The long-term average for wheeling 6 in Alternatives 5, 7, 8 and 9 are 232, 228, 327, 347 and 7 202,000 acre-feet, respectively. 8 Note that use of the joint point of diversion and 9 increased deliveries are not the same thing and that there 10 is not necessarily a one-to-one correlation between them. 11 The differences are primarily due to interactions with 12 storage in the San Luis Reservoir and capacity at Tracy, 13 i.e., pumping at Banks was used to fill the federal share 14 of the San Luis early when capacity was available at Tracy 15 in the following months. Such wheeling did not increase 16 deliveries. 17 Exhibits 10-F through 10-H show the annual use of 18 joint point of diversion over the 73 years of the studies. 19 Exhibit 10-F shows annual CVP pumping, that is Tracy plus 20 SWP wheeling. Exhibit Number 10-G shows annual SWP 21 wheeling. Exhibit 10-H shows annual CVP deliveries. 22 These exhibits summarize the use of the joint 23 point of diversion and the various alternatives. I guess 24 I should forgive -- we hadn't practiced this presentation 25 and -- CAPITOL REPORTERS (916) 923-5447 10964 1 MR. GAGE: I don't think you need to tell them that. 2 C.O. STUBCHAER: Mr. Renning, I think it's all 3 right. We have the exhibits before us and we can follow 4 along on that. And since you're not referring to the 5 exhibits on the screen, we haven't had to identify them 6 for the record. I take them just as illustrative of your 7 testimony as -- 8 MR. RENNING: Yes, that was our intent. 9 MEMBER DEL PIERO: No one is going asleep up here, 10 Mr. Renning, I assure you. 11 MR. RENNING: Table 13-3 in the Draft EIR summarizes 12 the monthly averages for SWP wheeling for the CVP under 13 each alternative. This table is somewhat misleading in 14 that this wheeling is not spread over long periods in 15 individual years. 16 Wheeling tends to be concentrated in a particular 17 month because of the availability of capacity at Banks and 18 the availability of water in the Delta. DOI Exhibit 10 -- 19 Exhibits 10-I through 10-P show the use of the joint point 20 of diversion in the various months of the 73-year study 21 period. 22 For example, in Alternative 1, that is D-1485 use 23 of the joint point of diversion is done in July and August 24 exclusively. That's Exhibit 10-I. Alternatives 5 and 8 25 which shows kind of illustrative, show the use in other CAPITOL REPORTERS (916) 923-5447 10965 1 months. 2 Use of the joint point of diversion by the CVP 3 is, essentially, a function of water supply availability, 4 capacity availability at Banks and a CVP demand, either a 5 direct demand or empty storage space in the federal share 6 of the San Luis Reservoir. We have looked at Alternative 7 4 and 8 to examine when the joint point of diversion would 8 be used under balanced conditions and under excess 9 conditions. 10 For Alternative 4, the long-term annual average 11 use for the joint point diversion under balanced 12 conditions was 99,000 acre-feet or 41 percent of the total 13 use. For Alternative 8, the figures are 194,000 acre-feet 14 or 56 percent out of the total use. 15 Under balanced conditions, the joint point of 16 diversion would move storage from northern reservoirs to 17 south of the Delta. Under excess conditions, the joint 18 point of diversion would divert unstored flows from the 19 Delta. Other alternatives are expected to be in that same 20 range. 21 Pumping rates for CVP water, that is combined 22 rates for Tracy and federal Banks wheeling are shown on 23 DOI Exhibits 10-Q through 10-Y. Here we've shown as 24 examples Alternatives 1, 5 and 8. 25 DOI Exhibit 10-Z summarizes some statistical CAPITOL REPORTERS (916) 923-5447 10966 1 information for the alternatives. These show that to 2 enable Reclamation to divert CVP water at those combined 3 rates the current 4600 cfs limitation or ambiguity in CVP 4 water rights permits will need to be addressed and lifted. 5 In conclusion, the Department of the Interior 6 submits that the testimony submitted on behalf of the 7 Bureau of Reclamation and the Fish and Wildlife Service, 8 the Draft EIR and the studies supporting it show that, 9 one: 10 Use of the joint point of diversion will improve 11 water supply reliability of CVP water supplies south of 12 the Delta without harming the environment and will not 13 affect the SWP. 14 The Draft EIR covers -- two, the Draft EIR covers 15 the full range of alternatives and addresses their 16 environmental effect. The various alternatives for the 17 use of joint point of diversion all have about the same 18 environmental effects. 19 Three, should the Board approve the joint point 20 of diversion at this time that would mean that the 21 projects would be operated, essentially, as portrayed in 22 Alternative 4. Alternatives with a higher use of the 23 joint point of diversion require facilities that have not 24 been developed yet and for which environmental 25 documentation and approval has not yet been done. As that CAPITOL REPORTERS (916) 923-5447 10967 1 occurs, use of the joint point of diversion could rise to 2 that shown in Alternative 8. 3 Four, Board approval of the joint point of 4 diversion will require that certain limitations be lifted 5 or addressed in CVP water right permits, that being the 6 4600 cfs which will generally be exceeded whenever the 7 joint point of diversion is in use. 8 Five, the joint point of diversion should be 9 implemented in accordance with the proposal by witnesses 10 for the CalFed agencies. That use of the joint point of 11 diversion beyond that permitted by Order 95-6, or now 12 98-9, be predicated on the submittal and review by the 13 Board -- submittal and review to the Board of an 14 operations plan developed as part of the first phase of 15 CalFed. Reclamation joins in that proposal. 16 And that concludes my testimony. 17 C.O. STUBCHAER: Thank you, Mr. Renning. 18 Mr. Del Piero. 19 MEMBER DEL PIERO: Mr. Renning, I want to make sure 20 that I understood something that you said. You indicated 21 that in terms of your agency's analysis that you assumed 22 service to the Cross Valley contract as part of your 23 initial determination as to water to be served; is that 24 correct? 25 MR. RENNING: Yes, and that's the way that the CAPITOL REPORTERS (916) 923-5447 10968 1 studies were done for the Draft EIR. 2 MEMBER DEL PIERO: Then after that you indicated 3 that shortages were assumed from environmental uses and 4 other contractors after that service had been provided 5 for; is that correct? 6 MR. RENNING: Yes. 7 MEMBER DEL PIERO: Question I have for you, given 8 our situation: That area is currently not within your 9 service area; is that not correct? 10 MR. RENNING: No, it is in -- 11 MEMBER DEL PIERO: Do your designated places of uses 12 as determined by State Water Resources Control Board does 13 or does not include that area? 14 MR. RENNING: It is within the place of use of some 15 of our water rights. 16 MEMBER DEL PIERO: But not -- 17 MR. RENNING: But not all. 18 MEMBER DEL PIERO: Okay. How do you reach the 19 conclusion that the environmental uses, the inflow in the 20 Delta should be shorted at the expense of guaranteeing 21 that contract? 22 MR. RENNING: I'm -- I don't quite follow your 23 question. 24 MEMBER DEL PIERO: Well, you indicate that as part 25 of your conclusion that there were -- that based on your CAPITOL REPORTERS (916) 923-5447 10969 1 analysis there would be no adverse environmental effects. 2 That was your conclusion. 3 You also indicated at the beginning of your 4 presentation that after the contract was guaranteed 5 environmental uses and the other contracts would 6 ultimately in the event of necessity have to experience 7 shortages. 8 The question I have for you is: How do you reach 9 your conclusion, if you're telling us at the very 10 beginning of your presentation, that in dry or critically 11 dry years the environmental uses would ultimately suffer 12 at the expense of guaranteeing that contract? 13 MR. RENNING: Okay. Perhaps, that's not quite 14 clear. 15 MEMBER DEL PIERO: Okay. That's why I'm asking the 16 question, because it wasn't clear to me. 17 MR. RENNING: Water service under the Cross Valley 18 contract has deficiencies imposed upon it, just as our 19 other contracts do. However, the Cross Valley water is 20 moved almost exclusively through the Banks pumping plant, 21 and so to the extent that we use Banks, we use it first to 22 meet the Cross Valley Canal contract. 23 The remaining use of the joint point of diversion 24 in our studies, was used to reduce whatever deficiencies 25 there would be on our deliveries south of the Delta as a CAPITOL REPORTERS (916) 923-5447 10970 1 whole. And those deliveries are for water supply purposes 2 and for environmental purposes on refuges in the San 3 Joaquin Valley. That's what we meant by shortages -- 4 making up for shortages to our contracts, agricultural 5 demands and to environmental needs. 6 MEMBER DEL PIERO: Okay. So you were not talking 7 about inflow requirements in the Delta, were you? 8 MR. RENNING: No. All those requirements are met. 9 MEMBER DEL PIERO: Okay. Thank you. 10 C.O. STUBCHAER: Thank you. 11 Mr. Brown. 12 C.O. BROWN: Thank you, Mr. Chairman. 13 You mentioned that the joint points would be used 14 to redirect stored flows from upstream regulation and then 15 unstored flows from the Delta. From the unstored flows 16 from the Delta, is that an increment in yield? 17 MR. RENNING: Yes, that would be an increment to the 18 deliveries, or to the yield of the Central Valley Project. 19 C.O. BROWN: Do you have an idea of what that would 20 be, quantity? 21 MR. RENNING: Well, the two studies that we looked 22 at in which I determined what the split was between the 23 water that was made available during excess conditions and 24 during balanced conditions, I have to look back here 25 again. CAPITOL REPORTERS (916) 923-5447 10971 1 For instance, for Alternative 4, I believe the 2 full flow increase in deliveries under the joint point of 3 diversions was on the order of about 200,000 acre-feet. 4 And about half of that, or about 99,000 acre-feet came 5 during the balanced conditions. That would be the time 6 that that water was moved from northern reservoirs to 7 southern reservoirs. And the other half would be during 8 unbalanced conditions when that water was excess in the 9 Delta. 10 So you could say that the use of the joint point 11 of diversion to increase the yield, that is that water 12 that is being developed from unstored flows, would be 13 about 100,000 acre-feet. 14 C.O. BROWN: And you figure that it's surplus to the 15 needs of the Delta at that time? 16 MR. RENNING: Yes. 17 C.O. BROWN: So it would be water that would be lost 18 if the joint point of diversion was not granted? 19 MR. RENNING: Yes, that's right. 20 C.O. BROWN: Thank you. 21 C.O. STUBCHAER: Ms. Forster. 22 MEMBER FORSTER: Yes, in your conclusion on Page 8 23 under Number 3, you said should the Board approve the 24 joint point of diversion this would mean that the projects 25 would be operated essentially as portrayed in Alternative CAPITOL REPORTERS (916) 923-5447 10972 1 4, but in writing it says 5. 2 MR. RENNING: Yes. There are several changes that 3 have been made to our testimony since it was submitted 4 last November. The proposal that our four agencies -- or 5 three agencies, two agencies within Interior, are making 6 is that the initial approval of the Board should be for 7 Alternative 4. That would be, essentially, as the system 8 is now operated under Order 98-9. 9 And that any increased use of the joint point of 10 diversion, such as Alternative 5, would fall under the 11 proposal of having an operation plan developed through 12 CalFed and submitted to the Board for its approval. 13 C.O. STUBCHAER: Yeah, what Ms. Forster is referring 14 to is your testimony is marked "revised." And the 15 original testimony, which I have is Exhibit 4, so I'm 16 wondering which is the later. 17 MR. RENNING: Sorry for that problem. 18 C.O. STUBCHAER: We'll find it. Okay. Thank you, 19 Mr. Renning. 20 Mr. Turner. 21 MR. TURNER: Well, that would complete Mr. Renning's 22 testimony. I would like to now present Mr. Sandino to 23 present Mr. Gage's testimony. 24 C.O. STUBCHAER: All right. Mr. Sandino. 25 MR. BIRMINGHAM: Excuse me, Mr. Stubchaer, may I CAPITOL REPORTERS (916) 923-5447 10973 1 make an inquiry -- 2 C.O. STUBCHAER: Yes. 3 MR. BIRMINGHAM: -- related to a statement that 4 Mr. Renning just made. He indicated I believe in response 5 to Ms. Forster's question that testimony has changed since 6 it was submitted in November. The testimony that was 7 submitted in November was the revised testimony. And so 8 if the revised testimony has changed, I wonder if 9 Mr. Renning could tell us the places where, in fact, that 10 those changes have been made so we can prepare for the 11 cross-examination. 12 C.O. STUBCHAER: Yes, that's a fair question, either 13 that or identify if there is a complete document with the 14 revised testimony, what it is identified as. 15 Excuse us, Mr. Sandino, for a minute. 16 MR. TURNER: Mr. Stubchaer, in response to 17 Mr. Birmingham's question, I repeat Mr. Renning's apology. 18 The two changes that should be made to Exhibit 10, which 19 is his written testimony, is on Page 3 -- 20 MR. BIRMINGHAM: Excuse me, Mr. Chairman. 21 Are you referring to revised exhibits now? 22 MR. TURNER: Yes, revised exhibits now, I'm sorry, 23 that was submitted in November. This is on Page 3, the 24 paragraph right at the very top, the second to the last 25 sentence which reads, CAPITOL REPORTERS (916) 923-5447 10974 1 (Reading): 2 "That approval at this time under existing 3 standards would be for use of joint point of 4 diversion as shown in Alternative 5." 5 What that should be referring to would be that we 6 would be requesting immediate approval of Alternative 4 7 and then approval of implementation of the other 8 alternatives, if any, upon development of the operations 9 plan. 10 And, similarly, the only other changes, the one 11 that Mr. Renning had pointed out during his oral 12 testimony, which is on Page 8, second line of paragraph 13 number 3, that should be "revised accordingly." That the 14 projects would be operated, essentially, as portrayed in 15 Alternative 4 until there was an operations plan developed 16 which would justify a more extensive use that would be 17 approved by the Board. Then, it would be moving to any of 18 the other more extensive alternatives if they become 19 applicable. So I apologize for that error in pointing 20 that out. 21 C.O. STUBCHAER: Thank you. 22 MEMBER FORSTER: One clarification. 23 C.O. STUBCHAER: Mr. Turner, Ms. Forster has another 24 question. 25 MEMBER FORSTER: I'd like you to clarify, again, on CAPITOL REPORTERS (916) 923-5447 10975 1 Page 3. You're saying more than what's here. Would you 2 say, then, that approval at this time under existing 3 standards would be for use of the JPOD as shown in 4 Alternative 5? You left that as Alternative 5? 5 MR. TURNER: No, that should be Alternative 4. 6 MEMBER FORSTER: Okay. 7 MR. TURNER: Because we're saying approval at this 8 time under existing standards. 9 MEMBER FORSTER: Okay. 10 MR. TURNER: So what we're talking about is 11 immediate approval to Alternative 4 subject to 12 modification if and when an operations plan is, in fact, 13 developed and submitted to the Board. So that 5 there on 14 Page 3 should be changed to a 4 to indicate the initial 15 request. 16 MEMBER FORSTER: Okay. 17 C.O. STUBCHAER: Mr. Campbell? 18 MR. CAMPBELL: If it may help the Board, I think 19 what we're looking at here is another descriptive term, "a 20 range" for initially. And then the range of alternatives 21 5 through 8 subject to the condition of an agreed upon and 22 approved operations plan through the CalFed process. 23 So it's just -- I think we're just getting caught 24 up in some semantics. It's in the interim period before 25 that plan is adopted, the agencies are requesting that the CAPITOL REPORTERS (916) 923-5447 10976 1 Board allow -- approve Alternative 4 to allow basically 2 the continuation of 98-9. Once the plan is in place, then 3 the approval would also encompass Alternatives 5 through 4 8. 5 C.O. STUBCHAER: Is this clear to everyone? 6 MR. BIRMINGHAM: Well, with due respect to 7 Mr. Campbell, I think that whether this is a semantic 8 question assuming it's going to be resolved by the 9 witnesses and that will come out through cross-examination 10 or, perhaps, explanation by the witnesses on direct. 11 C.O. STUBCHAER: Yeah. 12 MR. TURNER: I'd like to make one statement, if I 13 could. Ms. Whitney of your staff just pointed out that 14 one other change that probably should be made on paragraph 15 3, just for full clarification. The sentence following 16 the sentence where we had advised you that the reference 17 to Alternative 5 should be changed to Alternative 4, the 18 very next sentence reads, 19 (Reading): 20 "As other facilities are approved and 21 constructed the Board's approval of the joint 22 point of diversion would allow use of the joint 23 point of diversion as shown in Alternatives 7, 24 8 or 9." 25 For clarification, I think since we're not CAPITOL REPORTERS (916) 923-5447 10977 1 talking about the alternatives that may be applicable on 2 development of the plan, we probably should be referencing 3 Alternative 5 in there as well. So it would be 5, 7, 8 or 4 9. 7, 8, or 9 are more dealing with the need for 5 additional facilities. So 5 does not necessarily need to 6 be there. Again, I want to point out that would be 7 another alternative that would be available upon further 8 evaluation by the Board upon submission of the plan. So 9 that just for clarification, what we're looking at is 4 10 now. 11 MEMBER FORSTER: Could I ask? 12 C.O. STUBCHAER: Ms. Forster. 13 MEMBER FORSTER: I have a question. It is very good 14 to clarify this before we start listening to more 15 testimony, and then we have all the confusion in cross if 16 we don't understand what the theme is. So the theme is 17 that interfacing all this testimony with joint point of 18 use on Alternative 4. And if you wanted all these other 19 alternatives to be considered, wouldn't you have to come 20 back before this Board so we would know what that meant? 21 MR. TURNER: Well, the proposal is we would be 22 presenting all of the additional information to the -- for 23 evaluation through the CalFed process. An operations plan 24 would then be submitted to the Board for the Board's 25 adoption pursuant to the CalFed process in which all of CAPITOL REPORTERS (916) 923-5447 10978 1 the issues will have been taken into account and 2 considered. 3 MEMBER FORSTER: Well, I'm just trying to understand 4 the linkage between that and what we're doing now in Phase 5 VI. 6 C.O. STUBCHAER: Mr. Del Piero. 7 MEMBER DEL PIERO: Mr. Chairman, this is a situation 8 where CEQA and the Board's deliberative processes are 9 going to come into play. It's a long-established 10 interpretation of the California Environmental Quality Act 11 and regulations under which that Act are administered. 12 But in the event that someone proposes a large 13 project, or a project that has a potential of being 14 evaluated in phases, the magnitude of which a potential 15 environmental impact has to be measured at the time that 16 the decision is made. 17 The characterization that this is only 18 Alternative 4 and that somewhere down the line utilization 19 of the joint points could, in fact, ultimately result in 20 diversions that go up to and/or exceed what is in 21 Alternative 9, which is the largest I believe, we need to 22 clarify that for this record. 23 We are not talking about Alternative 4. We are 24 talking about Alternative 9. The magnitude of the 25 decision once made here has to be predicated upon the CAPITOL REPORTERS (916) 923-5447 10979 1 environmental impacts of the largest potential diversion 2 that takes places. The largest potential diversion that 3 will take place is Alternative 9. 4 So attempting to sort of velvet glove this by 5 saying, "Well, we're only talking about Alternative 4 and 6 then when we get around to it through the CalFed process 7 we may well go up to Alternative 9." The decision making 8 body is here. The agency that's responsible for 9 determining the CEQA consequences is here. 10 And so, ultimately, if we're being advised that 11 this decision anticipates diversions that will result in 12 water diversions up to and including Alternative 9, we 13 need to understand the decision being made here as part of 14 this process, as part of this portion of this process 15 deals with Alternative 9. 16 Because CEQA requires you to evaluate the maximum 17 potential environmental impact that will result from the 18 decision being made. So let's not pussyfoot around here. 19 We're talking about the maximum potential diversions as a 20 result of the joint point alternative, not something less 21 than that. 22 MR. TURNER: The only thing I might point out -- 23 C.O. STUBCHAER: Mr. Turner. 24 MR. TURNER: -- as far as the alternative that does 25 address the largest quantities of diversion is Alternative CAPITOL REPORTERS (916) 923-5447 10980 1 8 not Alternative 9. 2 MEMBER DEL PIERO: Whatever. 3 MR. TURNER: Just to make clear so you understand. 4 MEMBER DEL PIERO: I'm sorry. 5 C.O. STUBCHAER: Thank you, Mr. Del Piero, 6 Mr. Turner. 7 All right, Mr. Sandino. 8 MR. SANDINO: I'll just sit here since I'm already 9 here. 10 C.O. STUBCHAER: All right. 11 ---oOo--- 12 DIRECT EXAMINATION OF THE DEPARTMENT OF WATER RESOURCES 13 OF LARRY K. GAGE 14 BY DAVID SANDINO 15 MR. SANDINO: I'd like to present Mr. Gage to the 16 Board. 17 Please, state your full name for the record. 18 MR. GAGE: My name is Larry K. Gage. 19 MR. SANDINO: In front of you is Department of Water 20 Resources Exhibit 6 which is a statement of your 21 qualifications. Is this an accurate statement of your 22 qualifications? 23 MR. GAGE: Yes, it is. 24 MR. SANDINO: What is your current position with the 25 Department? CAPITOL REPORTERS (916) 923-5447 10981 1 MR. GAGE: As stated in DWR 6, I've been the chief 2 of the Operations Control Office, Division of Operations, 3 since 1992. However, this month I'm actually acting 4 division chief. We're having rotating assignments 5 following the retirement of our past division chief Ed 6 Huntley. 7 MR. SANDINO: What are your responsibilities with 8 the Department as chief of operations? 9 MR. GAGE: The responsibilities are managing and 10 directing the operation of the State Water Project that 11 includes the longer term planning of the operations, the 12 scheduling, managing of the outages that are needed for 13 various facilities, facilitating the coordination between 14 the various agencies that we deal with with water and 15 environmental issues and dealing with the California 16 independent system operator and deregulator to the 17 electrical industry. We are active in that part of the 18 life, I guess you could say. 19 MR. SANDINO: In front of you is DWR Exhibit 35, 20 which is your written testimony for Phase VI. Is this a 21 true and correct copy of your testimony? 22 MR. GAGE: Yes, it is. 23 MR. SANDINO: Would you, please, summarize that 24 testimony for the Board. 25 MR. GAGE: Surely. My testimony is really just CAPITOL REPORTERS (916) 923-5447 10982 1 intended to give you a viewpoint perspective from the 2 operator's side of what the joint point of diversion 3 means. There are five basic areas that I wanted to -- 4 that I went over in my testimony. I'll quickly summarize. 5 Those were: Winter operations to facilitate the 6 fill of San Luis Reservoir; joint point of diversion to 7 renew take of sensitive fish; its use in possible 8 transfers of storage withdrawals; operations; 9 modifications for fishery purposes during pulse flows and 10 temporary emergency operations. Those are the five areas. 11 Area one, regarding the winter operations to fill 12 San Luis, the joint point of diversion would provide a 13 better opportunity for the Central Valley Project to fill 14 its share and to do it more likely in times when flows in 15 the Delta are high. 16 And this would allow shifting of exports probably 17 earlier to an earlier winter period and thereby result in 18 decreases in spring exports. This would be because once 19 San Luis Reservoir storage is filled by both the state and 20 federal projects, then exports are solely for direct 21 diversion uses at that time. And in springtime those 22 demands have not yet increased very drastically. 23 So earlier fill of San Luis would, I believe, 24 relate to decreased exports in the springtime. The 25 operations in 1995 was a good example of that, when the CAPITOL REPORTERS (916) 923-5447 10983 1 State Water Project storage in San Luis was full and the 2 Central Valley Project was not. The joint point of 3 diversion would have enabled the Central Valley Project to 4 fill more rapidly. 5 The second issue is on reducing the take of 6 sensitive fish. Operations are sometimes modified to 7 adjust or to try to minimize the incidental take of fish. 8 And take has historically been different at either the 9 Bureau facility or the state facility. 10 And the joint point of diversion would allow the 11 projects to readily switch the pumping from either the 12 state facility to more at Tracy, or from Tracy to more at 13 Banks, whichever location was having less occurrence of 14 the sensitive fish. And I believe that would be a good 15 thing. 16 The third item was the possible transfers of 17 storage withdrawals. I believe John Renning mentioned 18 also, and I see this as a way in which the joint point of 19 diversion would increase water supply reliability, it 20 would allow CVP upstream storage withdraws, water that is 21 in storage and available if it met all of the other 22 requirements for environmental uses and biological 23 opinions to allow them to withdraw that water, move it to 24 the Delta and move it south -- to meet demands south of 25 the Delta. CAPITOL REPORTERS (916) 923-5447 10984 1 The fourth item was operations for fisheries 2 during pulse flows. This is related to the actions that 3 both the state and federal projects have done since the 4 Accord, definitely, and to some extent before then to 5 alter operations to provide benefits to fisheries. 6 And the joint point of diversion provides greater 7 flexibility and, therefore, more assurance that the 8 impacts on the water supplies south of the Delta can be 9 made up. And that the actions taken to benefit the 10 fisheries can be done without impacting supplies south. 11 As I believe John Renning testified, their 12 demands are pretty much required full use of Tracy and the 13 CVP, and it's not able to recover impacts of decreasing 14 exports without the use of the joint point of diversion. 15 The last item was -- that I wanted to talk about 16 was temporary urgency operations. A joint point of 17 diversion would allow us to provide a little more 18 protection for water supplies during emergency conditions. 19 Occasionally, there are unexpected problems in water 20 supply infrastructure and those require that we take some 21 actions to repair them. And we usually have to act pretty 22 rapidly to do those. 23 In 1997 we experienced a leak with the State 24 Water Project at Milepost 55, which is between our Banks 25 plant and the O'Neill Forebay of the San Luis facilities. CAPITOL REPORTERS (916) 923-5447 10985 1 The leak was of real concern. Some temporary 2 actions were taken and we went on with that. Then, in 3 1998 it started leaking again. And it did require that we 4 take major action repairing the canal work on it. And we 5 requested a joint point of diversion from the Board to 6 allow us to export some water from Tracy during the time 7 of this outage. 8 The Board did approve that pretty rapidly. It 9 took less than three weeks to approve it, but with the 10 joint point of diversion as soon as we knew there was a 11 problem we could just immediately switch from one to the 12 other without having to go through the paperwork and the 13 other items involved in it. 14 I believe that summarizes my testimony. 15 C.O. STUBCHAER: Thank you, Mr. Gage. 16 Mr. Brown. 17 C.O. BROWN: Mr. Gage, Mr. Renning indicated that 18 the unstored flows from the Delta could yield maybe as 19 much as 100,000 acre-feet annually with Alternative 4 20 and that the water that would be transferred from the 21 upstream area from other reservoirs would be about an 22 equal amount, maybe about 100,000 acre-feet annually on an 23 average. 24 So the question is: When you transfer this 25 storage from upstream to downstream and you make that CAPITOL REPORTERS (916) 923-5447 10986 1 additional storage available, in the upstream reservoirs, 2 does that also contribute to an increment in yield? 3 MR. GAGE: I'm not sure I fully understand the 4 question, Mr. Brown. 5 C.O. BROWN: Well, you're moving a couple thousand 6 acre-feet through the Delta, about half of it comes from 7 unstored water according to Mr. Renning -- and this may 8 have been a better question for Mr. Renning since they 9 have the upstream reservoirs, but you did, too -- when you 10 deplete the upstream reservoirs by the additional 100,000 11 acre-feet that you transfer from north to south, that 12 makes additional storage available. 13 So the question is: Was there a figure 14 quantified for an increment in yield due to that 15 additional storage? 16 MR. GAGE: I don't have the answer for that, 17 Mr. Brown. The additional exports during unstored flows 18 are not generally tied to that, that usually comes from 19 unregulated flows. And I believe Mr. Renning was talking 20 about his comparison of the numbers with whether it was in 21 balanced conditions or excess. 22 C.O. BROWN: Right. 23 MR. GAGE: And it can be in balanced conditions and 24 still have unstored flows available for exports, but I 25 don't think that's what he was referring to. CAPITOL REPORTERS (916) 923-5447 10987 1 C.O. BROWN: Thank you, Mr. Chairman. 2 MEMBER DEL PIERO: Mr. Chairman. 3 C.O. STUBCHAER: Mr. Del Piero. 4 MEMBER DEL PIERO: Can you tell me under Alternative 5 8 if you or the other agencies have calculated what your 6 yield would be utilizing the joint points of diversion? 7 Under Alternative 4 Mr. Renning indicated that the general 8 consensus was it was about 200,000 acre-feet. Under 9 Alternative 8 how much would it be? 10 MR. GAGE: I don't have the numbers in front of me, 11 but my recollection is it was around 270. 12 MEMBER DEL PIERO: So it's only 70,000 more under 13 Alternative 8 as opposed to Alternative 4? 14 MR. GAGE: That's my recollection, but I should 15 check the numbers. 16 C.O. STUBCHAER: I would suggest, Mr. Del Piero, 17 that during the lunch break that information be obtained. 18 They can look it up and obtain it under cross-examination. 19 MEMBER DEL PIERO: I'd be happy to get that 20 information afterward, Mr. Chairman. I guess what I'm 21 interested in, is as much as the presentation was made 22 earlier talking about how whether the Board is going to be 23 making the decision, I'd like to hear about the range of 24 impacts in terms of the various alternatives instead of 25 trying to just focus this on Alternative 4 when there are CAPITOL REPORTERS (916) 923-5447 10988 1 other alternatives that may come into play in terms of our 2 ultimate question. 3 C.O. STUBCHAER: I understand the question, 4 Mr. Del Piero. And it's directed to the panel, not just 5 Mr. Gage. 6 MEMBER DEL PIERO: That's correct. 7 C.O. STUBCHAER: Mr. Sandino, should we take a lunch 8 break now, or do you want to summarize Mr. Ford's 9 testimony. 10 MR. SANDINO: Actually, that concludes Mr. Gage, 11 unless there's more questions from the Board. 12 MEMBER DEL PIERO: Only in the regards to the 13 question I just asked, if I could get an answer to it, Mr. 14 Sandino, if it's possible to get that. 15 C.O. STUBCHAER: Mr. Gage is coming back for 16 cross-examination with the whole panel. 17 MR. GAGE: Sure. 18 MR. SANDINO: That concludes our direct. 19 C.O. STUBCHAER: Okay. 20 MR. SANDINO: But I believe Mr. Turner is going to 21 present Mr. Thabault next. That was the order that we 22 proposed. 23 C.O. STUBCHAER: All right. 24 MR. SANDINO: And Mr. Ford will be coming later. We 25 tried to organize this in a way that hopefully makes most CAPITOL REPORTERS (916) 923-5447 10989 1 sense, the two engineers first. 2 C.O. STUBCHAER: All right. 3 MR. SANDINO: Ms. Whitney has informed me that there 4 may be some confusion with our testimony. Page 5 of our 5 testimony may not have been included when we served all 6 the parties. I'm not sure if that's the case, but this is 7 of Mr. Gage's testimony. 8 C.O. STUBCHAER: There is no Page 5. 9 MR. SANDINO: There is no Page 5 in yours. Okay. 10 So it looks like there may be a copy error. So we will 11 make copies available for all the parties that are here 12 today. 13 C.O. STUBCHAER: And bring that back after lunch? 14 MR. SANDINO: And bring them back after lunch. And 15 then we'll serve all the other parties. 16 C.O. STUBCHAER: That's fine. We'll take our lunch 17 break now and reconvene at 1:00 p.m., but before everyone 18 gets up, Mr. Birmingham appears to have a question. 19 Mr. Birmingham. 20 MR. BIRMINGHAM: I wonder if during the lunch recess 21 the Department of the Interior witnesses could review 22 their written testimony and see if there are other changes 23 that need to be made to the revised exhibits in light of 24 the changes that have been made to Mr. Renning's testimony 25 and then tell us specifically what those changes should CAPITOL REPORTERS (916) 923-5447 10990 1 be, so we will have an opportunity to cross-examine on 2 those changes. 3 I note Mr. Thabault's testimony has some 4 statements in it that appear that they may have to be 5 changed in light of the changes suggested by Mr. Renning. 6 C.O. STUBCHAER: I think that's a fair request, 7 Mr. Birmingham. 8 As a matter of fact, I would like to see the 9 changes summarized on the errata sheet if we could and get 10 that distributed as soon as possible, Mr. Turner. 11 MR. TURNER: We certainly will do. 12 C.O. STUBCHAER: All right. Thank you. With that, 13 we'll take the lunch break and come back at 1:00 p.m. 14 (Luncheon recess.) 15 ---oOo--- 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 10991 1 TUESDAY, MARCH 3, 1999, 1:00 P.M. 2 SACRAMENTO, CALIFORNIA 3 ---oOo--- 4 C.O. STUBCHAER: We will reconvene the hearing. 5 And are you up, Mr. Turner, with your next 6 witness? I kind of lost track of the exact order. 7 MR. TURNER: Yes, sir, Mr. Stubchaer. I will be 8 presenting the remainder of the Department of Interior 9 witnesses now, but before we get into that a couple of 10 things. 11 First of all, at your request I had prepared an 12 errata sheet. Right now it's only handwritten, I haven't 13 had an opportunity to type it. So my question was: I 14 will certainly have this typed up and be prepared to 15 introduce it and make copies available for all the parties 16 tomorrow, but in the meantime would you like me to read 17 the changes that would be proposed in the testimony, it's 18 not that many of them, or just wait until tomorrow? 19 C.O. STUBCHAER: Is your handwriting legible, 20 Mr. Turner? 21 MR. SEXTON: Come on, Jim, tell the truth. 22 MR. TURNER: It's difficult. 23 C.O. STUBCHAER: Mr. Renning shook his head. The 24 reason I ask is that parties will want to prepare for 25 cross-examination. And if they wait until tomorrow they CAPITOL REPORTERS (916) 923-5447 10992 1 won't have the benefit of it overnight. So if it's 2 legible we can make copies here. If it's not legible, I 3 guess we'll just have to wait. 4 Mr. Birmingham, would you like to look at it and 5 see if you can read it? 6 MR. NOMELLINI: Make whatever adjustments you want. 7 MR. BIRMINGHAM: I think that it's legible. 8 C.O. STUBCHAER: All right. 9 MR. BIRMINGHAM: But, again, I'm not sworn and I 10 don't want to -- 11 C.O. STUBCHAER: No. That's just a policy 12 statement, Mr. Birmingham. 13 We will just make copies, Mr. Turner. 14 MR. TURNER: That would be fine if that's acceptable 15 to the Board. 16 C.O. STUBCHAER: And after the copies are made the 17 original will be returned to you, you can have it. 18 MR. TURNER: Thank you. 19 C.O. STUBCHAER: Okay. 20 MR. TURNER: And Mr. Sandino had asked he wanted to 21 make a statement in regard to the missing page in the 22 testimony. 23 MR. SANDINO: Mr. Stubchaer, we've checked with 24 other parties and apparently all the parties did receive 25 Page 5. Our only mistake, I guess, was our submittal to CAPITOL REPORTERS (916) 923-5447 10993 1 the Board, which was inadvertent. I apologize for that. 2 If it's okay, I don't think there's a need now to serve 3 all the other parties with that. 4 C.O. STUBCHAER: All right. And we do have a Page 5 5 now. And we should have had a clue when you said at the 6 beginning I think it was your fifth item. See, Page 4 7 ended with a period at the end of that paragraph, so there 8 was no clue what was going on. Anyway -- 9 MR. SANDINO: We submitted it that way just to test 10 you to make sure that you're reading it. 11 C.O. STUBCHAER: Well, okay. Thank you, 12 Mr. Sandino. 13 Okay. 14 MR. TURNER: I'd like to now call Michael Thabault. 15 C.O. STUBCHAER: Okay. 16 ---oOo--- 17 DIRECT EXAMINATION OF THE DEPARTMENT OF THE INTERIOR 18 OF MICHAEL THABAULT 19 BY JIM TURNER 20 MR. TURNER: Mr. Thabault, could you state your full 21 name for the record. 22 MR. THABAULT: My name if Michael G. Thabault, 23 T-H-A-B-A-U-L-T. 24 MR. TURNER: And by whom are you employed? 25 MR. THABAULT: U.S. Fish and Wildlife Service. CAPITOL REPORTERS (916) 923-5447 10994 1 MR. TURNER: And what is your position with the Fish 2 and Wildlife Service? 3 MR. THABAULT: I'm the deputy assistant field 4 supervisor for endangered species and environmental 5 contaminants. 6 MR. TURNER: And did you prepare or did you have 7 someone else prepare for you Exhibit 17 that was 8 introduced in this proceeding? 9 MR. THABAULT: I did. 10 MR. TURNER: And is the Exhibit 17 that was 11 introduced an accurate copy of that exhibit? 12 MR. THABAULT: Yes, it is. 13 MR. TURNER: Would you, please, summarize that 14 exhibit for the Board? 15 MR. THABAULT: I will. Good afternoon, Mr. Chairman 16 and Members of the Board. 17 C.O. STUBCHAER: Good afternoon. 18 MR. THABAULT: Nice to be here again so soon. I'm 19 happy to be here representing all four agencies today in 20 the joint proposal before the Board. I'm not here to 21 testify against something, but I'm here to testify for a 22 solution. I think that it's important that we are here as 23 a panel and as all four agencies. 24 The solution is a small piece of the puzzle, but 25 an integral piece of the puzzle that we want to go forward CAPITOL REPORTERS (916) 923-5447 10995 1 on. It's simple in nature, I hope. 2 The essence of the proposal is that we would 3 support operating the facilities pursuant to Alternative 4 4 in the Board's Draft EIR. However, we would like the 5 Board to authorize the full unlimited use of the joint 6 point of diversion subsequent to one very important 7 caveat. 8 And that is: The CalFed Bay-Delta program 9 proceeding on long-term solution which involves a myriad 10 of facilities, habitat restoration, flows, levee 11 protection, et cetera. And that we would propose that 12 that full implementation to the physical capacities be 13 deferred until such a time that the CalFed Bay-Delta 14 Program develops that proposal and undergoes it's 15 appropriate environmental review, Endangered Species Act 16 compliance under the state and federal acts and any other 17 regulatory needs and a record of decision if formulated on 18 that program. 19 The CalFed program is a broad agency supported 20 and stakeholder supported program. It's looking at many, 21 many different things. I have been involved with the 22 diversions' effects on fishery teams and the No Name Group 23 for quite some time now, for over a year. The purposes of 24 those two groups has been to evaluate the operations of 25 the facilities and the program as a whole on fish and CAPITOL REPORTERS (916) 923-5447 10996 1 other beneficial uses such as water quality and water 2 supply. 3 It has been the general consensus of both of 4 those groups, both in terms of water supply, water quality 5 and fisheries, that the joint point of diversion has some 6 utility and offers a certain amount of flexibility to the 7 program and to the facilities if it's implemented. 8 However, we do not know the specifics of that 9 implementation just yet. 10 The CalFed has many goals. Its goals are to 11 improve, in fact, recover and restore certain fish 12 species, to improve and benefit water quality for both 13 agricultural and M&I. It has a goal of facilitating and 14 fixing -- or to assist in fixing some of the South Delta 15 Water Agency's concerns in the South Delta as a result of 16 operations. 17 And, therefore, because all of those goals need 18 to be met in the process and the joint point of diversion 19 would be operated consistent with the ultimate decision in 20 that process, we believe it's appropriate that a broad 21 authorization be given consistent with that plan. 22 It is also our collective opinion that if this 23 authorization is given, that the impacts associated with 24 that decision fall well within the analysis that has been 25 conducted under the Draft EIR, and Mr. Robinson will speak CAPITOL REPORTERS (916) 923-5447 10997 1 to that later. 2 In essence, that summarizes my testimony. 3 C.O. STUBCHAER: Thank you, Mr. Thabault. 4 MR. TURNER: If there are no further questions, I 5 will, then, like to next call David Robinson. 6 MR. BIRMINGHAM: Excuse me, as part of 7 Mr. Thabault's direct, was he going to state the changes 8 in his testimony, if there were any, in his written 9 testimony? 10 C.O. STUBCHAER: Mr. Turner. 11 MR. TURNER: We can go ahead and do that if you 12 like. That was included in the errata sheet, but as far 13 as what was being proposed as far as changes in 14 Mr. Thabault's written testimony is on Page 3 of his 15 testimony, Item Number 11, there is a reference on the 16 third line of that item to "conditions now contained in 17 Water Right Order 95-6." 18 Obviously, this written testimony was prepared 19 while 95-6 was still in effect. To update that and to be 20 consistent with our other testimony, I would suggest that 21 we eliminate the words "Water Right Order 95-6." And 22 substitute, "Alternative 4 as described in Volume 4 of the 23 Draft Environmental Impact Report for implementation of 24 the 1995 Bay-Delta Water Quality Control Plan." 25 And I think that would -- that should correct his CAPITOL REPORTERS (916) 923-5447 10998 1 testimony and bring it up-to-date. 2 C.O. STUBCHAER: All right. And, then, as you said, 3 that is on the errata sheet which will be distributed soon 4 I take it, Ms. Whitney? 5 MS. WHITNEY: Yes. 6 C.O. STUBCHAER: Yes, very soon. Okay. 7 Good afternoon, Mr. Robinson. 8 ---oOo--- 9 DIRECT EXAMINATION OF THE DEPARTMENT OF RECLAMATION 10 OF DAVID ROBINSON 11 BY JIM TURNER 12 MR. TURNER: Mr. Robinson, would you state your full 13 name for the record, please. 14 MR. ROBINSON: David P. Robinson. 15 MR. TURNER: And by whom are you employed? 16 MR. ROBINSON: The U.S. Bureau of Reclamation. 17 MR. TURNER: And what is your position with the 18 Bureau? 19 MR. ROBINSON: I'm a fisheries biologist in the 20 environmental affairs division of the region. 21 MR. TURNER: And did you prepare or have prepared 22 under your supervision the document that has been admitted 23 as Exhibit 11 in this proceeding? 24 MR. ROBINSON: Yes, I did. 25 MR. TURNER: And did you prepare or have prepared at CAPITOL REPORTERS (916) 923-5447 10999 1 your direction the exhibits that are attached thereto? 2 MR. ROBINSON: Yes, I did. 3 MR. TURNER: And that would include your 4 qualification statement? 5 MR. ROBINSON: Correct. 6 MR. TURNER: And are all of those documents accurate 7 copies of the documents you prepared? 8 MR. ROBINSON: Yes, they are. 9 MR. TURNER: Would you, please, summarize the 10 testimony that's now presented in exhibit -- revised 11 Exhibit 11? 12 MR. ROBINSON: Yes, thank you. 13 Good afternoon, Board. My name is Dave Robinson, 14 and as I stated I'm a fishery biologist with the Bureau of 15 Reclamation. Along with Mr. Renning I had the opportunity 16 to participate on the team that provided the draft 17 environmental documentation analyzing the effects of the 18 joint points of diversion, which were subsequently used by 19 the Board staff in the production of Chapter 13 of the 20 Draft EIR. 21 My objective today is to share with you some of 22 the issues that we encountered while preparing the 23 document, to clarify some of the questions that may arise 24 concerning the analysis and to step through a couple of 25 the analyses that we need to demonstrate. CAPITOL REPORTERS (916) 923-5447 11000 1 Well, to begin with I think I would like to 2 explore the alternatives a little bit more. I have as an 3 overhead something that I intended to use for illustrative 4 purposes. And I understand that, you know, there may be a 5 need for them. I have 40 copies available. 6 C.O. STUBCHAER: Is it marked for identification, 7 Mr. Turner? 8 MR. TURNER: No, it has not been marked as of yet. 9 We were just going to use it for illustrative purposes, 10 but if you would like to have it distributed we can 11 certainly do so. 12 C.O. STUBCHAER: If it's on the screen and referred 13 to I think it needs to be identified. If there is 14 something that goes on the screen that is not referred to 15 during the oral testimony, just to differentiate, that 16 wouldn't necessarily have to be. 17 MR. TURNER: We will identify this exhibit as the 18 next exhibit that was attached to Mr. Robinson's testimony 19 which would be designated as Exhibit 11-M as in Mary. 20 MR. ROBINSON: As you may recall, Mr. Renning gave a 21 brief description of the alternatives that were used in 22 the analysis of the joint points of diversion. I will use 23 the pointer here, but there's been reference made to 24 Alternative 3, which is the first place that joint points 25 is actually used in the analysis. CAPITOL REPORTERS (916) 923-5447 11001 1 We step back to the Alternative 1, this is, 2 essentially, the base case, the set of conditions in which 3 all alternatives throughout the entire Draft EIR were 4 analyzed. 5 The first step that was taken to look at joint 6 points of diversion was first to run Alternative 2, which, 7 essentially, looks at what the full implementation of the 8 plan looked like from an environmental standpoint. 9 Then we subsequently developed a series of 10 alternatives that gradually ratchets up the amount of 11 joint points use that is allowed. In Alternative 3 the 12 assumption is 129,000 acre-feet a year. Alternatives 4, 13 5, 6 and 9 all assumed that wheeling up to 6680 was 14 allowed. 15 And then all the other alternatives to the right 16 of this column of alternatives assume that some kind of 17 measure is in place within the Delta to protect water 18 surface elevations in the South Delta. And, therefore, 19 would allow relief from the Corps' restrictions on pumping 20 and allow 10,300 cfs of wheeling to occur. And then, 21 finally, Alternative 8 which uses the 10,300 and also 22 increases CVP demands. 23 An important point that as we go through these 24 analyses, that it's not necessarily readily apparent 25 within many of the tables that are present is the CAPITOL REPORTERS (916) 923-5447 11002 1 distinction between Alternative 1 and Alternative 2. 2 Basically what this is doing is telling us what 3 are the environmental effects of implementation of the 4 plan. And then we compare the -- you know, in terms of 5 what we ratcheted up, the amount of wheeling or the amount 6 of joint points use that's been used in Alternatives 3 7 through 9. 8 And so it's necessary, at least in some of these 9 cases, to compare these alternatives not only to 10 Alternative 1, which is the base case, but Alternative 2 11 which represents what are the environmental effects of 12 implementation of the plan? 13 So comparison of the alternatives with 14 Alternative 2 basically demonstrates the incremental 15 effects increased use of joint point of diversion would 16 have over and above those effects attributable to the 17 plan. 18 In the broadest conceptual context, this allows 19 an assessment of the magnitude to which the environmental 20 benefits accrue as a result implementing the plan might be 21 eroded by implementing joint points of diversion. 22 I want to step through a couple of examples now. 23 This first slide is -- I believe it's going to be DOI 24 Exhibit 11-B, which is the average minimum water levels by 25 period at Middle River downstream of the barrier. CAPITOL REPORTERS (916) 923-5447 11003 1 We conducted an analysis of water surface 2 elevations in the South Delta after the Draft EIR came 3 out. Results of this analysis are present in our Exhibit 4 11-B through 11-L. I'm not going to discuss each and 5 every one, but generally go through two of them to sort of 6 give you an idea of what we found. 7 We utilized the same methodology here that was 8 utilized in Chapter 9 of the Draft EIR. In general, for 9 instance, this station downstream of a barrier, water 10 levels remain more or less the same as -- same or slightly 11 decreased. So here it's like what I'm talking about. 12 Initially, you have Alternative 1 showing up as the first 13 bar in any of these columns and -- 14 MR. TURNER: On the left-hand side? 15 MR. ROBINSON: On the left-hand side of the columns. 16 And, then, subsequently Alternatives 2 through 9 list 17 basically downstream of barriers. For instance, the April 18 1 through 15th period, implementation of the plan resulted 19 in a minor increase. Alternatives 2 through 8 resulted in 20 no net change. Alternative 9, an additional incremental 21 increase. 22 We'll go to the next slide, John. So in general, 23 the stations located downstream from barriers, water 24 levels basically remain the same or slightly increased. 25 When reductions were found they were usually associated CAPITOL REPORTERS (916) 923-5447 11004 1 with Alternative 7 and 8, which assume that installation 2 of permanent barriers would allow the 10,300 cfs pumping 3 rate at Banks. 4 You can see the effect of that, that assumption 5 in this figure, which I believe would be 11-C, average 6 water elevation by period at Middle River upstream of the 7 barrier. Here you can see that the modeled elevations 8 upstream from barriers were consistently higher in many 9 months for Alternatives 7 and 8. 10 The analysis of the other environmental variables 11 that we found in Chapter 13 utilized the same methods as 12 those that were employed by Board staff in looking at the 13 effects in Chapters 5 and 6 of the Draft EIR. Together 14 these analytical tools provide a comprehensive look at 15 potential environmental impacts of implementing joint 16 points of diversion. 17 Again, with the alternatives in mind, I want to 18 go on to another example. We will go to the next slide, 19 John, and talk about the consistent pattern that emerged 20 in these analyses. 21 For many of the environmental variables examined 22 the greatest difference occurred between Alternatives 1 23 and 2. In other words, with implementation of the plan. 24 Subsequent comparisons with other -- 25 C.O. STUBCHAER: Excuse me, could you identify this CAPITOL REPORTERS (916) 923-5447 11005 1 figure? 2 MR. ROBINSON: Okay. Well, I was getting to that. 3 C.O. STUBCHAER: Okay. 4 MR. ROBINSON: This is a reproduction of Page 13-36 5 from the Draft EIR, which contains Figures 13-42 through 6 13-44. 7 C.O. STUBCHAER: Thank you. 8 MR. ROBINSON: To demonstrate, Figure 13-42 9 Sacramento fall-run chinook salmon survival. This index 10 with implementation of the plan you can see there was an 11 increase from 29.1 percent to 33 percent. Subsequently as 12 we ratcheted up wheeling and the amount of use of joint 13 points of diversion we get very little difference between 14 this set of alternatives and Alternative 2. 15 Very similar to what happens. So the effect of 16 joint points, basically, for Alternative 3 there was no 17 difference from 2; Alternative 4, which is 33.6 resulted 18 in a .6 percent increase from Alternative 2, from 19 increased over that which resulted from implementation of 20 the plan. 21 C.O. STUBCHAER: Mr. Robinson, when you refer to, 22 "this set of alternatives," you're indicating from -- to 23 the right of four, I think -- three or four, but anyway 24 for the written record it's important to specify -- 25 MR. ROBINSON: Specify. CAPITOL REPORTERS (916) 923-5447 11006 1 C.O. STUBCHAER: -- what you were referring to. 2 MR. ROBINSON: Very good. I apologize. 3 C.O. STUBCHAER: That's all right. 4 MR. ROBINSON: I'll try to do better next time. 5 C.O. STUBCHAER: You're doing fine. 6 MR. ROBINSON: Okay. For all three of the salmon 7 runs the greatest change in modeled survival occurs as a 8 result of plan implementation. Winter-run, we've been 9 through the numbers. Interestingly enough, I also want to 10 point out here that I chose this example. And with the 11 addition of Alternative Number 9 here, suddenly we found 12 there seems to be some discrepancy, so we'll go to the 13 next. 14 In our subsequent analysis of what was going on 15 here, your staff discovered that there was an error in our 16 model results for the fall-run. Basically, our 17 spreadsheet was referring to a cell without any number in 18 it. Here -- and again, I offer this as an exhibit, if it 19 need be. Here's a corrected version of table -- or Figure 20 13-43 with the correct modeled results. 21 MR. TURNER: Why don't we identify this as Exhibit 22 11-N, as in Nancy. And I would just, again, point out 23 that the three graphs on this table, the one that is on 24 the top and the one that is on the bottom, Figures 13-42 25 and 13-44 are identical to the charts that are in the EIR CAPITOL REPORTERS (916) 923-5447 11007 1 itself, correct? 2 MR. ROBINSON: Correct. 3 MR. TURNER: And it is only the middle graph that 4 has been revised by changing the designation, or height of 5 the column under Alternative Number 9? 6 MR. ROBINSON: No. What has changed is the height 7 of the columns for Alternatives 2, 3, 4, 5, 6, 7 and 8. 8 MR. TURNER: I see. So modifications in all the 9 alternatives but for Alternative 1 then -- 10 MR. ROBINSON: Correct. 11 MR. TURNER: -- under that table? Okay. 12 MR. ROBINSON: The overall net result of this is 13 that my conclusions don't change. The relationship 14 basically remains the same. The majority of the impact 15 occurs within implementation of the plan. And as you 16 gradually ratchet up the amount of wheeling, or use of 17 joint points of diversion that very little difference 18 occurs. 19 Given these points along with the information 20 contained in Chapter 13 of the Draft EIR, the Department 21 of the Interior believes that the Board has before it 22 substantial evidence and adequate environmental 23 documentation to support its approval of the multi-agency 24 proposal regarding joint points of diversion. 25 Thank you. That concludes my testimony. CAPITOL REPORTERS (916) 923-5447 11008 1 C.O. STUBCHAER: Thank you, Mr. Robinson. 2 MR. TURNER: I would just like to ask Mr. Robinson 3 one specific question. I presume you were here earlier 4 this morning when Mr. Del Piero was referencing the need 5 for sufficient environmental documentation to address the 6 impacts of Alternative 8. 7 And I just wanted -- from what you said a minute 8 ago -- did your analysis reveal that the information, the 9 environmental documentation that has currently been 10 prepared has analyzed, sufficiently analyzed the impacts 11 of Alternative 8 as well as all the other alternatives? 12 MR. ROBINSON: I believe it has, but with the caveat 13 that there's clearly an assumption in there that with 14 Alternative 7 and 8 that some kind of fix is in place 15 within the South Delta to deal with the water surface 16 elevation issue. That, in and of itself, that action 17 would have to go through some extensive environmental 18 review. 19 We merely -- in our examination of the 20 alternatives says with something like that in place what 21 is the effects of -- beyond the implementation of the plan 22 incrementally ratcheting up the amount of joint points of 23 diversion that's allowed. 24 C.O. STUBCHAER: Mr. Del Piero. 25 MEMBER DEL PIERO: Would you be kind enough to CAPITOL REPORTERS (916) 923-5447 11009 1 explain to me what the minimum and the maximum, in regards 2 to this chart, the box chart that was presented earlier in 3 the joint points of diversion alternatives, under the box 4 entitled "JPOD Alternative 8," there's a reference at the 5 bottom of that brief statement indicating "CVP demands 6 increased," is somewhat cryptic. 7 Can you explain to me what the minimum and 8 maximum range is in terms of that use and demand? 9 MR. ROBINSON: I'm going to defer those kinds of 10 questions to Mr. Renning. Perhaps, if you would like him 11 to answer, he can probably do that. I really dealt more 12 with the environmental issues as opposed to hydrologic 13 issues. 14 C.O. STUBCHAER: Mr. Del Piero, as we said earlier 15 this morning, that we're going to have the whole panel for 16 cross-examination. 17 MEMBER DEL PIERO: That's fine. And Mr. Renning if 18 he wants to give me that answer at the time that he's back 19 up for cross-examination, that's fine. I'm just raising 20 the issue, because this is the chart that the gentleman 21 presented. 22 C.O. STUBCHAER: I understand. 23 MS. WHITNEY: Mr. Stubchaer? 24 C.O. STUBCHAER: Yes, Ms. Whitney. 25 MS. WHITNEY: While this is up, I had a question. CAPITOL REPORTERS (916) 923-5447 11010 1 While you can't see it, but the box on the lower left. 2 MR. ROBINSON: Yes. 3 MS. WHITNEY: The last line it says, "NIMPO in 4 place"? 5 MR. ROBINSON: Excuse me. It should be "NMIPO," New 6 Melones Interim Operating Plan -- or Plan of Operations. 7 MR. TURNER: Another errata. 8 MR. ROBINSON: Another errata. 9 C.O. STUBCHAER: Okay. Thank you, Mr. Robinson. 10 MR. TURNER: I would like to now call Dr. Kjelson. 11 C.O. STUBCHAER: Good afternoon, Dr. Kjelson. 12 DR. KJELSON: Good afternoon. 13 ---oOo--- 14 DIRECT EXAMINATION OF FISH AND WILDLIFE SERVICE 15 OF DR. MARTIN KJELSON 16 BY JIM TURNER 17 MR. TURNER: Dr. Kjelson, could you, please, state 18 your full name for the record. 19 DR. KJELSON: Martin A. Kjelson. 20 MR. TURNER: And by whom are you employed? 21 DR. KJELSON: U.S. Fish and Wildlife Service. 22 MR. TURNER: And what is your position? 23 DR. KJELSON: I'm project leader at our fishery 24 resource office in Stockton. 25 MR. TURNER: And were you responsible for the CAPITOL REPORTERS (916) 923-5447 11011 1 preparation of Interior Exhibit Number 12? 2 DR. KJELSON: Yes, I was. 3 MR. TURNER: And are you familiar with the exhibits 4 that were attached thereto? 5 DR. KJELSON: Yes, I was. 6 MR. TURNER: Is Exhibit 12 the testimony and -- on 7 those exhibits, are those accurate copies of the documents 8 you prepared and compiled? 9 DR. KJELSON: Yes, they were. 10 MR. TURNER: Would you, please, present a summary of 11 Exhibit 12. 12 DR. KJELSON: Surely. Thank you, Mr. Chairman, 13 Members of the Board. 14 My summary testimony will, one, focus on the 15 possible risk of joint point of diversion to juvenile 16 salmon in the Delta, particularly, in the fall and winter. 17 And, two, emphasize our commitment to work with the CalFed 18 to implement a joint point of diversion plan in the most 19 fish protective manner possible. 20 In relation to the risk to fish under joint point 21 of diversion, I focused on the November to January period 22 when juveniles of all runs of salmon are in the Delta, 23 particularly yearling spring-run. 24 Recent trends in our coded-wire tagged salmon 25 data suggests that as Delta exports increase, as will CAPITOL REPORTERS (916) 923-5447 11012 1 occur with joint point of diversion, salmon survival in 2 the Central Delta decreases. Data collected this past 3 December, in 1998, has further strengthened that trend and 4 we now have a statistically significant relationship 5 between the survival of coded-wire tagged late fall-run 6 smolts released in the Delta and total exports during 7 their migration through the Delta. 8 MR. BIRMINGHAM: Excuse me. I'm going to object and 9 ask that the witness be instructed to summarize his 10 written testimony. 11 C.O. STUBCHAER: Dr. Kjelson, can you point out 12 where in your written testimony that reference to the 13 December '98 data is? 14 DR. KJELSON: I was going to get to that in my next 15 comment. My comment would be the full data set and 16 regression is provided in Revised Department of Interior 17 Exhibit 12-A, and new exhibit Department of Interior 18 Exhibit 12-AA. And I think Mr. Turner has those and will 19 make a comment on them. 20 MR. TURNER: Dr. Kjelson has prepared, as he 21 mentioned, a revised Exhibit 12-A, which updates the 12-A 22 that was submitted with his previous testimony to include 23 references to the results of some later analyses that were 24 done. And he has compared -- he has prepared what we 25 call -- it's a graph? CAPITOL REPORTERS (916) 923-5447 11013 1 DR. KJELSON: A graph regression. 2 MR. TURNER: A graph indicating the results of those 3 particular analyses. And we were proposing to introduce 4 those in place of Exhibit 12-A as updated information that 5 he would -- he's been relying on. 6 DR. KJELSON: I would also add, if you read my 7 written testimony that we submitted in November, I refer 8 to some data gaps that we had planned to fill this coming 9 December. And that is basically what we did. And to 10 update the testimony and information provided, that's 11 basically what we're doing now. 12 C.O. STUBCHAER: It's always nice to use all the 13 data available, the only potential problem is this 14 constitutes surprise testimony, which could deprive other 15 parties of having their experts review the data and 16 prepare for cross-examination. 17 Mr. Birmingham. 18 MR. BIRMINGHAM: Mr. Stubchaer, you have just hit 19 the nail on the head. Dr. Kjelson has introduced, through 20 his oral testimony today, an entirely new dimension to his 21 testimony. He used the terms "statistically significant 22 relationship." And that is not found anywhere in his 23 written testimony. 24 That may be part of the data gap that he's trying 25 to fill, but this is surprise testimony. And I would CAPITOL REPORTERS (916) 923-5447 11014 1 request that Dr. Kjelson make these exhibits available to 2 us, we be given an opportunity to ask our experts to 3 review these data and then delay the cross-examination of 4 Dr. Kjelson until we've had an opportunity to review the 5 new evidence and consult with our experts. 6 C.O. STUBCHAER: Mr. Campbell. 7 MR. CAMPBELL: It's my understanding that the new 8 data were served -- the Department of Interior served the 9 new data upon the parties last week. So that it already 10 has been distributed. We know that the Attorney General's 11 Office was served with that data. There was a proof of 12 service attached that listed all the other parties to the 13 proceeding. 14 MEMBER DEL PIERO: Starting to look like a line at 15 Baskin-Robbins. 16 C.O. STUBCHAER: Mr. O'Laughlin. 17 MR. O'LAUGHLIN: When we've been going through the 18 hearings the whole point of presubmittals and the 19 deadlines of presubmittals is to allow the parties 20 advanced warning of the testimony, scope of the testimony 21 and whether or not they need to have it reviewed. 22 And so far we've not had any parties come in two 23 days prior to the hearing, been served documents on us and 24 tell us that's going to be part of their case in chief. 25 And I would request that either, A, that you CAPITOL REPORTERS (916) 923-5447 11015 1 strike any reference to this testimony, or B, go the route 2 that Mr. Birmingham suggested and allow that he testify -- 3 that we have a chance to review it and then bring 4 Mr. Kjelson back for cross-examination at a later date. 5 C.O. STUBCHAER: Mr. Jackson. 6 MR. JACKSON: I'd like to support Mr. Birmingham's 7 motion on the grounds that -- different grounds. It is 8 that I believe that this testimony is an attempt to cure 9 the inadequacies of the EIR since the most affected 10 species, the spring-run salmon, has never been considered 11 by the Draft EIR. And so I don't think that the 12 government ought to be allowed to cure the defects in the 13 EIR in such a surprise way. 14 C.O. STUBCHAER: Mr. Herrick. 15 MR. HERRICK: I just want to express my concurrence 16 with Mr. Birmingham and Mr. Jackson. I believe that's 17 absolutely correct. It's procedurally not right. Thank 18 you. 19 C.O. STUBCHAER: Ms. Leidigh. 20 MS. LEIDIGH: I just want to point out that since 21 Mr. Campbell has said that he had received a copy of this 22 material last week, that a Bay-Delta staff person has gone 23 upstairs to see whether we, indeed, received one 24 ourselves. It has not been distributed and we're not 25 aware that we got it, but we're going to double-check. CAPITOL REPORTERS (916) 923-5447 11016 1 C.O. STUBCHAER: Well, to me, my way of thinking, 2 receiving it last week doesn't cure the defect in having 3 it available for preparation of cross-examination. 4 MEMBER DEL PIERO: I'd just like to know if any 5 other parties received it. 6 C.O. STUBCHAER: Mr. Del Piero would like to know if 7 any other parties received the information that was 8 referred to that was distributed last week. 9 THE AUDIENCE: No. 10 C.O. STUBCHAER: Okay. Please, restate your first 11 suggestion, Mr. Birmingham. 12 MR. BIRMINGHAM: It is our view that the Board needs 13 to have as much data as it can have in order to make an 14 informed decision. And, therefore, if additional data has 15 been collected I don't think we object to it being 16 introduced, but I think we should have an opportunity to 17 analyze the data and to prepare adequate 18 cross-examination. 19 So I would request that the testimony, or the new 20 data be distributed to the parties, we be given an 21 opportunity to submit that to our consultants, our 22 experts, and then call Dr. Kjelson back at some later date 23 to cross-examine him on the testimony that was submitted 24 and the new data that's going to be circulated. 25 C.O. STUBCHAER: Mr. Turner. CAPITOL REPORTERS (916) 923-5447 11017 1 MR. TURNER: The only thing I would have to say is 2 that the whole purpose of preparing these revised 3 documents was specifically, as Mr. Birmingham said, to 4 provide the most updated information available to the 5 Board. 6 We were certainly not intending to try and 7 present any information to the parties that would catch 8 them by surprise or off guard. This is consistent with 9 the documentation that had been prepared and presented 10 earlier. I would leave it to the Board to determine 11 whether they feel that the other parties should have 12 additional time to review and prepare for 13 cross-examination. 14 My only concern is that, presumably, the 15 analysis, the charts that was previously introduced was 16 recording the results from six -- on six different dates, 17 six different release dates. We have now gone to eight. 18 And I question why suddenly those last two dates would 19 raise a whole newer area for cross-examination that 20 wouldn't have been obvious from the other six. 21 C.O. STUBCHAER: Your client would like to say 22 something. 23 DR. KJELSON: Just to clarify, I'm not disputing and 24 I respect your comment and echo what Mr. Turner said, I 25 mean we're not trying to be secretive and surprise anyone. CAPITOL REPORTERS (916) 923-5447 11018 1 I would like to note many, many parties noted this updated 2 information in the CalFed Ops meeting in January. And 3 then a more final -- or firm, statistical relationship in 4 the February CalFed Ops meeting. So it isn't we were 5 hiding this until last week when it went out to people. 6 C.O. STUBCHAER: Nobody suspects that you were 7 hiding it. It wasn't available when the original 8 testimony was prepared and I understand that. 9 DR. KJELSON: I understand that. 10 C.O. STUBCHAER: But I do think that the people are 11 entitled to have some additional time to prepare for it. 12 So, Mr. Birmingham, how much time do you think 13 would be required to review the new data? 14 MR. BIRMINGHAM: I would ask for a minimum of a week 15 to review the new data. 16 C.O. STUBCHAER: All right. 17 MEMBER DEL PIERO: Mr. Nomellini. 18 C.O. STUBCHAER: That's all right. Well, 19 Mr. Nomellini, have we been ignoring you? 20 MR. NOMELLINI: No, you haven't. Dante, Jr., is 21 going to do the cross-examination in this phase so I 22 didn't want to introduce two attorneys as we proceeded 23 along. But we received our copy on March 8th. So I think 24 that part of the problem is it was late delivery for the 25 purpose of this hearing. CAPITOL REPORTERS (916) 923-5447 11019 1 C.O. STUBCHAER: All right. 2 MR. NOMELLINI: But there was a mailing. So I 3 confirm Mr. Campbell's suspicion. 4 C.O. STUBCHAER: We will ask Mr. Kjelson to come 5 back. Let's see, today is the 9th so next Wednesday, the 6 17th. 7 Does that work for you? 8 DR. KJELSON: It certainly can work. 9 C.O. STUBCHAER: Do you have your calendar, we'll 10 try to accommodate you. 11 DR. KJELSON: I think a little later that week or 12 the next week would be better, depending on your -- 13 C.O. BROWN: Just a moment. 22nd would be the 14 following week. 15 MR. TURNER: I was just pointing out to Mr. Kjelson, 16 as was mentioned earlier, Dr. Kjelson along with the other 17 witnesses for the three departments will be on the panel 18 for cross-examination. And depending on how long that 19 cross-examination takes, you know, he may be here next 20 week going through cross-examination as a member of the 21 panel in any event. 22 C.O. STUBCHAER: That's true. Let's just try to 23 pick a date. I'm sure it can't be too late for the other 24 parties, Dr. Kjelson. 25 DR. KJELSON: Sure. CAPITOL REPORTERS (916) 923-5447 11020 1 C.O. STUBCHAER: So we have the 23rd, 24th, 25th 2 which are Tuesday, Wednesday and Thursday. And the 3 following week we have the 30th and 31st which are Tuesday 4 and Wednesday? 5 DR. KJELSON: The week of the 23rd would be fine. 6 C.O. STUBCHAER: All right. Let's set this for the 7 24th, Wednesday the 24th. The information has been 8 distributed and all the parties don't know yet if they 9 have received it, because it just came in yesterday. 10 Is there any additional information that the 11 parties need, Mr. Turner, to fill out the record? Is 12 there the testimony as well as the data? 13 MR. TURNER: I presume what we are going to be doing 14 then is Mr. Kjelson will be able to then present his 15 direct testimony based upon these revised exhibits and 16 explain the exhibits and finish up with the remainder of 17 his testimony, just withhold the cross-examination on 18 these exhibits; is that correct? 19 C.O. STUBCHAER: Yes. I may have been a week off in 20 my dates. Ms. Forster is reminding me. We also have the 21 16th and 17th, which are next week, Tuesday and Wednesday 22 of next week. 23 DR. KJELSON: I could make myself available either 24 of those days. 25 C.O. STUBCHAER: The 17th? CAPITOL REPORTERS (916) 923-5447 11021 1 MEMBER DEL PIERO: He said either. 2 C.O. STUBCHAER: Let's do the 17th instead of the 3 previous date that I mentioned. 4 DR. KJELSON: Okay. 5 C.O. STUBCHAER: Mr. Jackson. 6 MR. JACKSON: Mr. Stubchaer, this information and 7 the cross-examination of Mr. Kjelson may affect the 8 testimony of Mr. Robinson as well since he was here to 9 talk about the adequacy of the environmental document. 10 And it's going to be kind of hard to ask him whether or 11 not he's considered this information. So could that 12 cross-examination also be delayed to the same panel with 13 Dr. Kjelson? 14 C.O. STUBCHAER: Mr. Turner, any comment? 15 MR. TURNER: I guess I don't quite understand 16 Mr. Jackson's objection. We are -- Mr. Robinson will be 17 on the cross-examination panel and should be able to be 18 cross-examined unless -- 19 C.O. STUBCHAER: We could ask Mr. Robinson if this 20 new information changed his conclusions and see if it's 21 necessary to bring him back, if you want to call him back 22 up again. 23 MR. TURNER: Mr. Robinson, could you come up for a 24 minute? 25 C.O. STUBCHAER: You're still under oath. CAPITOL REPORTERS (916) 923-5447 11022 1 Mr. O'Laughlin, I'll get to you in a minute. 2 MR. O'LAUGHLIN: No, no hurry. 3 C.O. STUBCHAER: We're off the record for a moment. 4 (Off the record from 1:46 p.m. to 1:47 p.m.) 5 C.O. STUBCHAER: Okay. Back on the record. 6 MR. TURNER: Mr. Robinson has returned. And I 7 presume you wanted to ask him whether he had taken this 8 revised data into account in his analysis and with respect 9 to the conclusion he had presented in his earlier 10 testimony. 11 C.O. STUBCHAER: I think you should ask him. 12 MR. TURNER: Okay. Mr. Robinson, have you taken -- 13 reviewed the information that's present in this Exhibit 14 12-A as revised and Exhibit 12 double A, taken into 15 account your evaluation of the environmental 16 documentation? 17 MR. ROBINSON: I have seen the information and 18 looked at it, but I have not analyzed it with respect to 19 its effect upon the environmental document. But I also 20 would like to say that there were no analyses of the 21 effects of the spring-run salmon presented in the Draft 22 EIR, either Chapter 13 or Chapter 5 and 6, because at the 23 time the documents were produced, you know, there were no 24 models available to assess those impacts. 25 It's my understanding that the Board staff now CAPITOL REPORTERS (916) 923-5447 11023 1 has something in place and will be providing an 2 analysis -- that it will be presented until the final EIR. 3 MR. HOWARD: Yes, that's correct. 4 C.O. STUBCHAER: That's correct. All right. 5 Mr. Robinson, could you be available for 6 additional examination on March 17th? 7 MR. ROBINSON: Yes, I can. 8 C.O. STUBCHAER: All right. We'll request that you 9 be here, too. 10 Mr. O'Laughlin. 11 MR. O'LAUGHLIN: I think we have some precedent 12 based on prior actions in front of the Board. The EDF 13 witness who had the charts but didn't have any substantive 14 testimony and we subsequently had that person prepare 15 testimony to go with the charts. 16 Right now, I'm concerned, I don't -- I would 17 object if Mr. Kjelson is allowed to go forward with 18 presenting testimony in an oral manner in front of the 19 Board based on this new exhibit, which is a key exhibit as 20 part of his testimony, on an oral basis without anything 21 for us to look at, because then we're going to have to 22 wait for the hearing transcript, and the hearing 23 transcripts are running about ten days behind. 24 And I keep fairly good notes, but not that great. 25 What I would suggest since DOI is in an errata mode with CAPITOL REPORTERS (916) 923-5447 11024 1 their testimony is that they do an errata for Mr. Kjelson, 2 ASAP. Since this is -- I will say this, I know I'm not 3 saying that anybody has conspired, but if they've known 4 about this information since January, it was incumbent 5 upon them to get it to us as quickly as possible rather 6 than a day before a hearing. 7 So I would suggest that they prepare an errata, 8 submit it to the parties, bring Mr. Kjelson back and have 9 him prepare his direct testimony and then we'll have 10 grounds upon which to cross-examine him on. Right now 11 we're put at an extreme disadvantage due to their 12 inability to get this in front of us in a timely fashion. 13 C.O. STUBCHAER: Another alternative would be to 14 confine the oral testimony to summarize the written 15 testimony that is before us and not go beyond that. And 16 then, of course, the additional data is probably 17 important, would not be in the record so -- Mr. Del Piero. 18 MEMBER DEL PIERO: How many parties here, just with 19 a show of hands, are participating in the CalFed Ops 20 Group? Okay. So at least, you may not have gotten the 21 actual hard copy of the exhibits, but at least was there 22 some discussion of this in January and February? 23 MR. CAMPBELL: It's my understanding that there was. 24 MR. BIRMINGHAM: Mr. Del Piero -- 25 MEMBER DEL PIERO: I'm not trying to make any point CAPITOL REPORTERS (916) 923-5447 11025 1 other than the fact that it appears from the number of 2 hands being displayed in the audience, with the exception 3 of maybe you and the five Board Members here, it looks 4 like the rest of the world at least had some knowledge of 5 what was going on. 6 MR. O'LAUGHLIN: You know what's interesting about 7 that, if I may respond just briefly to that? 8 MEMBER DEL PIERO: Oh, Mr. Nomellini, he's not part 9 of the rest of the world either. 10 MR. O'LAUGHLIN: The parties that are raising their 11 hands are all the parties who are CalFed who are putting 12 on the testimony. So it's like their own little club 13 without us in it. They all know about it -- 14 C.O. STUBCHAER: I'm going to stop this. It doesn't 15 matter if it was known through Club CalFed or ClubFed, 16 whatever it is. It has to be known through this hearing 17 process. And if it is not part of the record, we can't 18 consider it. 19 So I think Mr. O'Laughlin raised a valid point. 20 And there is precedent for what he suggested. So I see it 21 either as providing the written additional testimony 22 regarding the new data and the statistical difference 23 thereof, or confining the oral testimony to the written 24 materials before us. 25 Mr. Turner. CAPITOL REPORTERS (916) 923-5447 11026 1 MR. TURNER: My suggestion is that -- I understand 2 that Dr. Kjelson can -- is willing to limit his testimony 3 to the written testimony and -- but on Page 2 there is a 4 reference in there -- I'm sorry, on Page 1, Paragraph 6. 5 There's a reference to some data that's contained in 6 Exhibits 12-A and 12-B. 7 Dr. Kjelson would simply be testifying that this 8 is now the data that he submitted in lieu of the other. 9 And we can withhold cross-examination on the details of 10 that data until a later date. But then it's not going to 11 be revising the scope of his testimony in any way, it's 12 just to update what he previously provided to substantiate 13 his previously written testimony. 14 C.O. STUBCHAER: Time-out. 15 (Off the record from 1:53 p.m. to 1:54 p.m.) 16 C.O. STUBCHAER: Back on the record. 17 Mr. Campbell. 18 MR. CAMPBELL: I will just like to clarify that this 19 isn't exactly totally new evidence. It's a matter of 20 degree. The evidence was already presented in his written 21 testimony. These are just the latest findings related to 22 his original exhibit. So it's just a little bit more that 23 adds further emphasis to what he's already done. 24 The other point I'd like to clarify is that we do 25 plan to keep this panel together throughout CAPITOL REPORTERS (916) 923-5447 11027 1 cross-examination, just to answer Mr. Jackson's question. 2 So if there's some crossover between what cross-examiners 3 want to ask Mr. Kjelson related to these additional data 4 points and other witnesses, we'd be happy to do that. 5 MR. O'LAUGHLIN: In response -- 6 C.O. STUBCHAER: Mr. Aladjem. 7 MR. ALADJEM: Mr. Stubchaer, I wanted to iterate 8 where we started about 15 minutes ago with 9 Mr. Birmingham's point. Dr. Kjelson said at the start of 10 his oral testimony, there was statistically significant 11 information. That to the knowledge of most of the 12 individuals in this room who are not a part of the Cal Ops 13 Group, is the first time in this hearing which I believe 14 has extended in one way or another over ten years where 15 that statement has been made. 16 If that's not significant new information, I 17 don't know what is. We needed additional time. I would 18 suggest to the Board that in order to conserve the Board's 19 resources and to move these hearings forward 20 expeditiously, we not have Dr. Kjelson go through the 21 testimony that's been prepared in writing, but wait until 22 we've had a chance to look at the new testimony, to have 23 the written testimony as Mr. O'Laughlin is suggesting and 24 then do all the cross-examination and all the direct at 25 one time. Thank you. CAPITOL REPORTERS (916) 923-5447 11028 1 C.O. STUBCHAER: When you said -- Mr. Aladjem, when 2 you said all the cross-examination, are you referring to 3 the whole panel? 4 MR. ALADJEM: No, Dr. Kjelson. 5 C.O. STUBCHAER: Mr. O'Laughlin. 6 MR. O'LAUGHLIN: In response to Mr. Campbell I have 7 to take exception, because if it's not new evidence then 8 he should not be proffering it to the Board as evidence. 9 So either it's new and it's different, or it's not. 10 And in this case based on the statements made by 11 the witness, it is new and it is statistically significant 12 relationships. And that has -- that has very special 13 meaning, and you'll probably hear this from Mr. Kjelson 14 later on in his testimony. 15 So I think we need to, and unfortunately for the 16 Department of the Interior, they have to redraft the 17 statement, resubmit it to the parties, allow us a week to 18 review it and then bring Mr. Kjelson back. And we'll 19 cross-examine him on this very important new information 20 that bears on this issue. 21 C.O. STUBCHAER: All right. Mr. Turner, I'm going 22 to request that the testimony be redone to include the 23 discussion of the statistical significance and the 24 inclusion of the December '98 data. That will be 25 distributed to the parties by March 17th and that we have CAPITOL REPORTERS (916) 923-5447 11029 1 Dr. Kjelson here on March 24th for cross-examination. 2 MR. TURNER: That is noted, Mr. Stubchaer. Would 3 you like me to go ahead and distribute the revised 4 exhibits now so the people can start their analysis, or 5 wait until we have the revised testimony to go along with 6 them? 7 MEMBER DEL PIERO: I think they ought to have the 8 exhibits right now. 9 C.O. STUBCHAER: Yeah, let's hand out the exhibits 10 right now. 11 And, Dr. Kjelson, sorry for the confusion, but 12 we're protecting people's rights under the due process 13 here. 14 DR. KJELSON: I understand that fully. I have a 15 short amount, to continue -- 16 C.O. STUBCHAER: No. You come back and you present 17 all of your testimony on the 24th and then be 18 cross-examined then. And, then, you can talk about the 19 materials that you add to your present testimony that 20 you've already discussed that were outside the scope of 21 your written testimony. 22 MR. TURNER: Well, we certainly can do that, I 23 guess. I was presuming that we'd continue with the rest 24 of his testimony, because he was talking about more than 25 one subject. CAPITOL REPORTERS (916) 923-5447 11030 1 And this one subject is being addressed in 2 Paragraph 6. We're now moving on to other concerns that 3 he was going to express and so I felt we could continue 4 with those and leave this one in abeyance. 5 C.O. STUBCHAER: That are not related to the new 6 data in any way? 7 DR. KJELSON: Well, I think if you'll allow me five 8 minutes to put things in a little broader perspective, 9 allows us to have a little more efficient 10 cross-examination of all of us as witnesses later today or 11 tomorrow, I think it would help. But you can pass 12 judgment on that if you bear with me. 13 C.O. STUBCHAER: We have to hear from various 14 parties. 15 Mr. O'Laughlin. 16 MR. O'LAUGHLIN: See, the problem, though, is if 17 Mr. Kjelson testifies and his testimony is going to be 18 relied upon somebody on cross-examination, or as part of 19 their statements to the Board, then it creates a further 20 exacerbation of the problem. We're done with Mr. Kjelson, 21 bring him back whenever we need to have him brought back 22 and we'll finish Mr. Kjelson up. 23 C.O. STUBCHAER: Mr. O'Laughlin, the parties have 24 relied on his previously submitted written examination, 25 they've already done that. CAPITOL REPORTERS (916) 923-5447 11031 1 MR. O'LAUGHLIN: Yeah, but the problem is that if 2 he's allowed to bring this all back together in a 3 statement upon which other -- not other parties, other 4 participants in this panel are relying upon and it's this 5 new information upon which they're relying upon, then 6 we're going to be right back where we started from. 7 And I don't think you should allow him five 8 minutes to kind of bring this all together. There's 9 certain discrete points that he makes in the continuation 10 of his testimony that may have nothing to do with the new 11 information. But I think when you read his testimony, 12 almost all of it springs from that relationship. 13 C.O. STUBCHAER: Well, this testimony was prepared 14 before that new information was available as I understand 15 it. And the parties, the other members of the team may 16 have already relied on that testimony. And so if the 17 remainder of your testimony is independent of the new data 18 and wouldn't refer to it, I'll permit you to go ahead. 19 DR. KJELSON: In answer to that, your statement, the 20 rest of my testimony relies on the fact that there was a 21 trend between export and survival. I could base it simply 22 on that, or I could use the new testimony. Not that this 23 new testimony is greatly affecting what I'm going to say. 24 As you said, my written testimony already made 25 various points. I think it's still consistent with that. CAPITOL REPORTERS (916) 923-5447 11032 1 But, absolutely, I respect the fact now we have a 2 statistically significant relationship that is much 3 different than a trend. 4 C.O. STUBCHAER: Well, let's bring back the new 5 testimony then, because we're trying to divide something 6 that really isn't divisible. 7 MR. TURNER: All right. Then we will provide copies 8 of the revised testimony by Dr. Kjelson to all of the 9 parties by the 17th, at the latest. And then 10 Mr. Kjelson will be -- we are going to be presenting Dr. 11 Kjelson's testimony on the 17th. 12 DR. KJELSON: On the 17th not the 24th. 13 MR. TURNER: So when is the revised testimony 14 supposed to be made available? 15 C.O. STUBCHAER: I suggested that the revised 16 testimony be made available by the 17th and that he could 17 then present his testimony and be cross-examined on the 18 24th. But if there are other suggestions we're open to 19 it. 20 MR. TURNER: So, all right. We'll make the 21 testimony available by the 17th. And then you would have 22 to be here on the 24th to make your presentation and go 23 through cross-examination. Okay. 24 Very good. Then, that would conclude 25 Dr. Kjelson's testimony. CAPITOL REPORTERS (916) 923-5447 11033 1 DR. KJELSON: Thank you. 2 C.O. STUBCHAER: We'll see you next time. 3 MR. TURNER: Then I will introduce Mr. Campbell for 4 him to present his witness. 5 C.O. STUBCHAER: Mr. Campbell. 6 MR. BIRMINGHAM: May I have a moment to confer with 7 Mr. Campbell? 8 C.O. STUBCHAER: Yes. Off the record. 9 (Off the record from 2:04 p.m. to 2:06 p.m.) 10 C.O. STUBCHAER: Mr. Campbell, you ready? 11 MR. CAMPBELL: Yes, Mr. Chairman. 12 C.O. STUBCHAER: You've been ready all along. 13 MR. CAMPBELL: Yes, Mr. Chairman. 14 ---oOo--- 15 DIRECT TESTIMONY OF THE DEPARTMENT OF FISH AND GAME 16 OF JIM WHITE 17 BY MATTHEW CAMPBELL 18 MR. CAMPBELL: Would you, please, state your full 19 name. 20 MR. WHITE: James R. White. 21 MR. CAMPBELL: By whom are you employed? 22 MR. WHITE: California Department of Fish and Game. 23 MR. CAMPBELL: What is your present position with 24 the Department of Fish and Game? 25 MR. WHITE: I'm an environmental specialist in our CAPITOL REPORTERS (916) 923-5447 11034 1 habitat conservation division. 2 MR. CAMPBELL: Do you have a copy of DFG Exhibit 8 3 with you today? 4 MR. WHITE: Yes, I do. 5 MR. CAMPBELL: Is DFG Exhibit 8 a true and correct 6 statement of your qualifications as an expert witness? 7 MR. WHITE: Yes, it is. 8 MR. CAMPBELL: Do you have a copy of DFG Exhibit 27, 9 revised, with you today? 10 MR. WHITE: Yes, I do. 11 MR. CAMPBELL: Is DFG Exhibit 27 an accurate copy of 12 your written testimony as submitted to the Board? 13 MR. WHITE: Yes, it is. 14 MR. CAMPBELL: Do you have a copy of DFG Exhibit 28 15 with you entitled, "State of California the Resources 16 Agency, Department of Fish and Game, Report to the Fish 17 and Game Commission, a Status Review of the Spring-run 18 Chinook Salmon in the Sacramento River Drainage, June 19 1998"? 20 MR. WHITE: Yes, I do. 21 MR. CAMPBELL: Was that document prepared by the 22 Department of Fish and Game? 23 MR. WHITE: It was. 24 MR. CAMPBELL: Were you involved in that 25 preparation? CAPITOL REPORTERS (916) 923-5447 11035 1 MR. WHITE: Yes, I was. 2 MR. CAMPBELL: Is Exhibit 28 a true and accurate 3 copy of that document? 4 MR. WHITE: Yes, it is. 5 MR. CAMPBELL: Do you have a copy with you today of 6 Department of Fish and Game Exhibit 29? 7 MR. WHITE: Yes, I do. 8 MR. CAMPBELL: And that's dated October 27th, 1997, 9 entitled, "CalFed Operations, Sacramento River Spring-run 10 Chinook Salmon Protection Plan." Is that correct? 11 MR. WHITE: That's correct. 12 MR. CAMPBELL: Is DFG Exhibit 29 a true and accurate 13 copy of that document? 14 MR. WHITE: It is. 15 MR. CAMPBELL: Returning your attention to 16 Department of Fish and Game Exhibit 27, will you please 17 summarize your written testimony. 18 MR. WHITE: Good afternoon, Board Members. My name 19 is Jim White. I've worked as a fishery biologist for the 20 Department of Fish and Game for the last 20 years. The 21 majority of my experience has been in fishery and water 22 issues related to the Bay-Delta in the Central Valley. 23 In the recent years I represented the Department 24 on the CalFed Ops Group, CalFed No Name Group and the Data 25 Assessment Team. CAPITOL REPORTERS (916) 923-5447 11036 1 My testimony addresses Phase VI of the Bay-Delta 2 Water Rights Hearing described in the Board's revised 3 notice of public hearing. My testimony has been revised 4 from that which I submitted in July 1998, because the 5 Department and other CalFed agencies, specifically the 6 Bureau of Reclamation, Department of Water Resources, U.S. 7 Fish and Wildlife Service and we have agreed to approach 8 the petition for joint points of diversion in a new way. 9 My testimony addresses the following points: 10 One, the revised proposal for joint points of diversion 11 approval; two, an overview of joint points of diversion 12 pursuant to Water Right Order 95-6, subsequently 98-9; 13 and, three, our concerns with respect to salmon, 14 particularly spring-run chinook salmon related to use of 15 joint points of diversion particularly in the fall and 16 winter. 17 The main purpose of my testimony -- 18 C.O. STUBCHAER: Excuse me, Mr. White and 19 Mr. Campbell. You said your testimony has been revised 20 since this July 13th submittal. I don't know if we have 21 that. Do we have the revised? 22 MR. HOWARD: Yes, we do. 23 MR. CAMPBELL: May I make a suggestion, it could 24 just be the outside cover of the binder that still 25 references July 13th. And your staff probably inserted CAPITOL REPORTERS (916) 923-5447 11037 1 the updated testimony for you. 2 C.O. STUBCHAER: No, that testimony is July 13th. 3 As long as it's on the record, we just won't be able to 4 follow along. 5 MR. CAMPBELL: The 20 copies of the revised 6 testimony was hand delivered to Board staff on November 7 23rd, 1998. 8 C.O. STUBCHAER: Okay. It was just our internal 9 distribution system and maybe it's our recordkeeping. 10 C.O. BROWN: Are you sure? 11 C.O. STUBCHAER: Yeah. We evidently have received 12 this independent of the boxes of other Delta material we 13 had, so it didn't get in our boxes. 14 So anyway, the clock has been stopped, 15 Mr. White, so no penalty to you. Okay. Please, proceed. 16 MR. WHITE: Thank you. The main purpose of my 17 testimony is to confirm DFG's support for the approach 18 described by Mr. Thabault for Board approval of the 19 petition from the Bureau and DWR for joint use of their 20 respective points of water diversion in the South Delta. 21 To reiterate the proposal, we recommend the Board 22 authorize joint points of diversion for the Bureau and DWR 23 and such use commencing only upon presentation to the 24 Board's directive officer of an operations plan developed, 25 evaluated and adopted under the CalFed Bay-Delta Program CAPITOL REPORTERS (916) 923-5447 11038 1 process. 2 The Department is a full participant in the 3 CalFed activities described by Mr. Thabault. As he 4 stated, use of joint points of diversion is expected to be 5 part of CalFed's preferred alternative. We believe the 6 CalFed forum can produce an operations plan including the 7 use of joint points of diversion that will facilitate 8 improved fish survival and ecosystem function in the Delta 9 and provide water users with opportunities to achieve 10 goals related to water supplies on the Delta. 11 As Mr. Thabault states in his written testimony, 12 a wide range of options for dealing with fishery concerns 13 have been considered in proposed operations plan of Stage 14 1 of CalFed. When our testimony was submitted, the 15 advantages and disadvantages of different approaches was 16 still being examined. These options varied in the degree 17 to which they relied on specific rules that applied to 18 specific times, fixed rules who's implementation is 19 triggered by realtime monitoring, and less structured 20 methods of adapting operations, the hydrologic and fishery 21 resource conditions as they occur and as they were 22 identified through various monitoring activities. 23 The exploration of options for fishery protection 24 is continuing and will intensify in the next few months. 25 So far it appears as if a combination of these methods may CAPITOL REPORTERS (916) 923-5447 11039 1 be the most effective way to deal with complex 2 interactions of highly variable hydrology, operation's 3 capabilities and limits and the interannual variation and 4 the timing and extent of vulnerability of many fish 5 species in the Delta. 6 In 1995 through its issuance of Water Right Order 7 95-6 the Board temporarily authorized coordinated 8 operations of the SWP and CVP through use of joint points 9 with certain limitations. Namely, that, one, can be used 10 only when coordinated operations will benefit fishery 11 resources in the estuary; two, there are no increase in 12 annual exports; and, three, there are no adverse effects 13 to prior rights, water quality or other beneficial uses. 14 Order 95-6 also provided that the CalFed 15 Operations Group would play a continuing rule in the 16 implementation of joint points relative to those 17 constraints. Through the CalFed Ops Group the Department 18 has participated in the development and implementation of 19 a monitoring and response approach to minimize fishery 20 impacts of joint points in 1996. 21 In 1997 this approach was the basis for the 22 Spring-run Chinook Salmon Protection Plan. A copy of the 23 '97 spring-run plan is provided to the Board as DFG 24 Exhibit 29. This plan, again, was revised for 1998 to 25 incorporate SWP and CVP operation's plan specific to the CAPITOL REPORTERS (916) 923-5447 11040 1 fall of 1998 and early 1999 and to add the use of tagged 2 salmon released in the Delta in assessing the loss of 3 yearling spring-run salmon in the Delta. 4 DFG suggests that this same concept will be 5 useful in the future to avoid and minimize Delta fishery 6 impacts. The effectiveness of this approach may be 7 increased by adjusting monitoring locations and frequency, 8 revising the so-called triggering criteria, refining the 9 way we use surrogate fish, improving the ability to 10 discriminate among other runs of salmon and to 11 differentiate wild salmon from hatchery salmon at all 12 monitoring locations and by increasing the specificity of 13 the operational responses. 14 In August 1998 the California Fish and Game 15 Commission voted to list the Sacramento spring-run chinook 16 salmon as a threatened species under the California 17 Endangered Species Act. With completion of the required 18 regulatory process for listing, the spring-run chinook 19 salmon was added to the State's list of threatened species 20 on February 6th, 1999. 21 In 1999 the National Marine Fishery Service will 22 also be deciding to list spring-run salmon under the 23 Federal Endangered Species Act. 24 Potential affects of joint point pumping on three 25 races of salmon, fall-run, late fall run and winter-run CAPITOL REPORTERS (916) 923-5447 11041 1 were analyzed in the Draft EIR using survival models 2 generated by Dr. Kjelson and his colleagues based on the 3 results of the smolt survival studies. 4 All joint points alternatives show Delta survival 5 improvements compared to Alternative 1 and small 6 differences among Alternatives 3 through 8 for fall-run, 7 late fall-run and winter-run. 8 However, the effects of salmon spawning and 9 rearing habitat upstream resulting from joint points' 10 effects on reservoir storage and the temperature of water 11 released from reservoirs were not evaluated. We also 12 noted in our comments on the Board's Draft EIR that it did 13 not evaluate the projects' potential effects on the 14 spring-run salmon using the same analytical approach 15 applied to the other races of salmon. 16 To assist the Board and its staff in completing 17 that analysis, the Department provided a copy of its 18 status review on spring-run chinook salmon, DFG Exhibit 19 28. 20 The Department hopes that the information 21 contained in the spring-run status report will be useful 22 to the Board and its staff in the analysis of the 23 projects' potential impacts to spring-run salmon. And I 24 think we heard a moment ago that those analyses have been 25 done. CAPITOL REPORTERS (916) 923-5447 11042 1 Spring-run status report covers a broad range of 2 topics. The following is a brief overview of some of the 3 information that the report -- in the report that is most 4 relevant to this hearing. The status report describes the 5 life history patterns of spring-run. 6 Juvenile spring-run can enter the Delta over many 7 months due in large part to a wide variation in the 8 environmental conditions in their spawning and rearing 9 habitats after holding through the summer, spring-run 10 spawn in very cold water of higher elevation streams like 11 Mill and Deer Creek and in lower elevation reaches of 12 streams such as Butte and Big Chico Creeks where water 13 temperatures typically are somewhat warmer. 14 Egg incubation and juvenile growth are more rapid 15 in the warmer water relative to the colder water 16 conditions. This difference in early development rate 17 leads to two juvenile spring-run migration patterns which 18 in turn define the theories of concern in the Delta for 19 spring-run from each type of stream. 20 Because they hatch later and grow slower, 21 juvenile spring-run in Mill and Deer Creeks tend to remain 22 in the natal stream through the first summer and to 23 migrate downstream to the ocean in the fall, more than a 24 year after their parents spawn thus the term "yearlings." 25 In lower elevation streams like Butte Creek, eggs CAPITOL REPORTERS (916) 923-5447 11043 1 hatch sooner and juvenile fish grow more rapidly. Hence, 2 juvenile from Butte Creek tend to migrate from the natal 3 stream as six- to eight-month-old fish in the spring. 4 Consequently, spring-run salmon may occur in the Delta 5 from October through June. 6 Yearling migration may begin in October, usually 7 peaks in November or December and ends in January or 8 February. Spring-run smolt migration through the Delta 9 occurs throughout the spring and essentially is complete 10 by the end of June. 11 The 1995 Bay-Delta Water Quality Control Plan 12 includes measures in the late winter and spring months, 13 February through June, to reduce adverse effects on 14 winter-run salmon and Delta smelt among other species. 15 These measures also tend to provide favorable conditions 16 for the spring-run that immigrate down. 17 The Department is particularly concerned, 18 however, about potential adverse effects of export pumping 19 on the survival of yearling salmon immigrating in the fall 20 and early winter, November through January, because of 21 high proportion of Delta inflow, up to 65 percent may be 22 exported during this time period. Due to the springtime 23 restrictions, pumping has already shifted to this period 24 and joint points' use will increase that pumping. 25 U.S. Fish and Wildlife Service has documented CAPITOL REPORTERS (916) 923-5447 11044 1 through field experiments that Sacramento basin salmon 2 moving from the Sacramento River into the Georgiana Slough 3 are less likely to survive than those that migrate out of 4 the Delta through the lower reach of the Sacramento River. 5 Because the distance is at least 37 percent 6 greater, migration through Georgiana Slough and the 7 interior Delta likely would take longer and, therefore, 8 expose salmon to greater risks and mortality. 9 All other factors being equal, we would expect 10 mortality of salmon on the Georgiana Slough migration 11 route to be about 37-percent greater than on the 12 Sacramento route. However, in Fish and Wildlife Service 13 studies described in Board Staff Exhibit 177 and explained 14 today -- or would have been explained today by Dr. 15 Kjelson -- recoveries of tagged salmon in the Chipps 16 Island in the western Delta indicate mortality of salmon 17 in the interior Delta is at least three and a half times 18 and in one trial as much as 25 times higher than in the 19 Sacramento River. 20 These observations suggest that factors other 21 than the longer migration distance substantially influence 22 the survival during migration through interior Delta. 23 The Fish and Wildlife studies suggests that 24 exposure of salmon to mortality factors may be influenced 25 by the amount of water flowing through or exported from CAPITOL REPORTERS (916) 923-5447 11045 1 the Delta during periods of salmon migration. 2 Exports of water from the Delta at times produce 3 net upstream, or reverse flows in some western and 4 southern Delta channels. If juvenile salmon become 5 disoriented and confused as to which direction is 6 downstream due to altered flow patterns in the Delta and 7 as a consequence their migration through the Delta is 8 prolonged, more of them may die before they find their way 9 out of the Delta. 10 Mortality of salmon in the lower Sacramento River 11 and Delta may be caused by many factors, including, but 12 not limited to: Predation, entrainment and local 13 agricultural diversions, entrainment in the CVP/SWP 14 diversions, higher water temperatures particularly in the 15 late spring and disease. 16 The exact causes of the higher mortality of 17 salmon migrating through the interior Delta are difficult 18 to establish through field experiments. We do not have a 19 comprehensive understanding of what factors most influence 20 salmon survival in the Delta. 21 Nevertheless, it is likely that modifications to 22 flow pattern related to the export of water from the 23 southern Delta by the CVP and SWP contribute to the 24 adverse modification of habitat and to the mortality of 25 juvenile salmon in the Delta. CAPITOL REPORTERS (916) 923-5447 11046 1 The Board's Draft EIR indicates that compared to 2 Alternative 2, with no joint points, average Delta exports 3 will increase in October, November, December, January and 4 for some alternatives in April, May and June. Compared to 5 Alternative 2, Q-West is reduced, that is reversed flows 6 are increased in all alternatives in October through 7 January. 8 DFG has established that spring-run salmon may be 9 in the Delta from October through June when the Delta 10 cross-channel gates are closed, as is provided by the 11 water quality plan, salmon are prevented from leaving the 12 Sacramento River through the cross-channel. 13 However, even with the Delta cross-channel gates 14 closed, some salmon still enter the Delta through 15 Georgiana Slough and Three Mile Slough whereas the Fish 16 and Wildlife Service data indicate that survival is 17 consistently lower than in the Sacramento River. 18 For this reason it is incumbent on us to ensure 19 that adequate operational discretion is available in the 20 fall and early winter to reduce export-related losses of 21 spring-run salmon. Besides spring-run we have several 22 other concerns. Particularly in wet years, any salmon fry 23 from the San Joaquin River basin tributaries can appear in 24 the Delta in February and in March. 25 If utilized during that period joint points could CAPITOL REPORTERS (916) 923-5447 11047 1 increase losses of this life stage of San Joaquin basin 2 salmon, which are particularly vulnerable to the diversion 3 affect. Sacramento River juvenile late-full run and 4 winter-run salmon also may appear in the Delta in the late 5 fall months. And, thus, also may be adversely affected by 6 joint points pumping. 7 In conclusion, the Department of Fish and Game 8 recognizes that joint points provides opportunities to 9 export water with minimal impacts to fisheries and that in 10 doing so benefits for both fisheries and water supplies 11 dependent upon the Delta can be generated. 12 We recognize that it is difficult to balance 13 operational restrictions necessary to address effects on 14 the endangered species and other environmental concerns 15 and at the same time to retain the operational flexibility 16 to achieve water supply benefits by reacting to changing 17 hydrologic conditions. 18 We believe the best venue to determine how the 19 joint points can fit into the overall long-term Bay-Delta 20 solution is to integrate it into defining the Delta and 21 the Bay-Delta Program. We further recognize that it is 22 difficult to define criteria which completely describes in 23 advance all the opportunities for use of joint points 24 without adverse environmental effects. 25 For this reason we believe it is most appropriate CAPITOL REPORTERS (916) 923-5447 11048 1 to rely on a combination of fixed criteria and variable 2 criteria tied to a realtime assessment of environmental 3 and fishery conditions as the basis for operations of 4 project facilities in the Delta including joint point use. 5 It is also important to continue to improve our 6 understanding of factors influencing fish survival in the 7 Delta and to focus our remedial efforts appropriately. 8 Based on the current level of knowledge, it is my opinion 9 that operations criteria that limit impacts to juvenile 10 salmon in the fall and early winter are needed. And any 11 acceptable CalFed operations plan must address this need 12 in some way. 13 DFG intends to work with its CalFed partners to 14 develop an operations plan that will both facilitate 15 improvements to fish survival in the Delta and provide 16 water users with opportunities for achieving their water 17 supply and water quality goals through a variety of means 18 including use of joint points of diversion. 19 Finally, it is the Department's clear 20 understanding that the use of joint points is authorized 21 by the Board as recommended in this proposal would not 22 commence until an acceptable operations plan that 23 incorporates joint point and includes operational criteria 24 for protection of fisheries is developed, evaluated and 25 adopted through the CalFed process. CAPITOL REPORTERS (916) 923-5447 11049 1 In my opinion, such a plan is an essential 2 prerequisite to expanded use of joint points of diversion 3 to assure public trust fishery resources are protected. 4 Thank you for your consideration of our testimony and of 5 the exhibits we have submitted for Phase VI. 6 C.O. STUBCHAER: Thank you, Mr. White. And who is 7 going to be next in your -- 8 MR. CAMPBELL: Mr. Sandino will be presenting the 9 person, I believe, to be the panel's last witness until 10 Mr. Kjelson completes his testimony. 11 C.O. STUBCHAER: All right. That will be after our 12 afternoon break. We'll take our afternoon break now. 13 (Recess taken from 2:29 p.m. to 2:46 p.m.) 14 C.O. BROWN: We're back on the record. 15 Mr. Stubchaer is tied up for a few moments, so I'll chair 16 until Jim gets back. 17 Mr. Birmingham. 18 MR. BIRMINGHAM: Mr. Brown, I have two timing 19 issues. First, the witnesses that we will present are 20 next in order after this panel. I actually have one 21 witness in the room this afternoon, expecting that we 22 might get there. It does not appear that we will conclude 23 with this panel either today and probably not tomorrow if 24 there's significant cross-examination. 25 So for purposes of planning our presentation to CAPITOL REPORTERS (916) 923-5447 11050 1 the Board, I wonder if I could ask the Board to ask the 2 parties how much cross-examination of this panel there 3 will be. 4 C.O. BROWN: Okay. Let's see a show of hands of 5 those who would like to cross-examine the panel. Let's 6 see, Vicky, if you'd write them out. 7 MR. JACKSON: I'm raising this hand for EDF. 8 C.O. BROWN: All right. 9 MR. JACKSON: And this hand for me. 10 C.O. BROWN: Okay. Mr. Jackson, how much do you 11 need? 12 MR. JACKSON: I think it will be 45 minutes to an 13 hour. 14 C.O. BROWN: Mr. Herrick? 15 MR. HERRICK: I'll be close to two hours. 16 C.O. BROWN: Who else had their hand up? 17 Mr. Nomellini. 18 MR. NOMELLINI, JR.: Maybe up to 45. 19 MR. NOMELLINI: Two hours. 20 C.O. BROWN: If we put you down for two hours and 21 you come up short -- 22 MR. JACKSON: This one can do it quickly, this one 23 can't. 24 C.O. BROWN: All right. Who else had their hand up? 25 MS. LEIDIGH: Garner, O'Laughlin, Maddow. CAPITOL REPORTERS (916) 923-5447 11051 1 C.O. BROWN: 15 minutes. 2 MR. ALADJEM: I'm for Mr. Atlas about half hour to 3 an hour. 4 C.O. BROWN: Okay. 5 MR. BIRMINGHAM: That answers my question. It does 6 not appear that we will conclude with this panel tomorrow, 7 so can we plan on having our witnesses here on Thursday? 8 C.O. BROWN: That will work, Mr. Birmingham. 9 MR. BIRMINGHAM: All right. One other issue, David 10 Orth is the general manager of Westlands Water District is 11 a witness in this phase. He has to be in Washington, 12 D.C., this week, he's there now, presuming his plane could 13 land, I guess they were having a blizzard this morning. 14 Would it be possible to present him sometime 15 early next week, even if it's out of order? 16 C.O. BROWN: He's back in Washington now? 17 MR. BIRMINGHAM: Yes. 18 C.O. BROWN: Well, he won't be back Thursday anyway, 19 then, will he? 20 MR. BIRMINGHAM: Well, I'm asking for an 21 accommodation. No, he will not be back by Thursday. 22 C.O. BROWN: Is there any objections to taking Mr. 23 Orick first part of next week, say, next Tuesday? All 24 right. We'll do that. 25 MR. BIRMINGHAM: Thank you. CAPITOL REPORTERS (916) 923-5447 11052 1 C.O. BROWN: Is that it, Mr. Birmingham? 2 MR. BIRMINGHAM: Well, I don't want to push my luck, 3 but there's one other issue. May I ask to cross-examine 4 tomorrow, because I have to go to another meeting that 5 starts at 3:00? 6 C.O. BROWN: All right. 7 MR. BIRMINGHAM: I stipulate that none of my 8 questions on cross-examination will be based upon the 9 cross-examination that goes before me. 10 C.O. BROWN: Any objections to Mr. Birmingham being 11 excused for today? 12 MR. BIRMINGHAM: Actually, there probably will be a 13 lot of support for that. 14 C.O. BROWN: Let's see a show of hands for support 15 for Mr. Birmingham. 16 All right, Mr. Birmingham. 17 MR. BIRMINGHAM: Thank you very much. 18 C.O. BROWN: Mr. Sandino, you're up. 19 MR. SANDINO: Thank you, Mr. Brown. This will be 20 the last witness of the panel that we're presenting today, 21 Mr. Ford. 22 ---oOo--- 23 DIRECT EXAMINATION OF THE DEPARTMENT OF WATER RESOURCES 24 OF STEPHEN FORD 25 BY DAVID SANDINO CAPITOL REPORTERS (916) 923-5447 11053 1 MR. SANDINO: Will you, please, state your full name 2 for the record. 3 MR. FORD: Stephen A. Ford. 4 MR. SANDINO: In front of you is DWR Exhibit 4 which 5 is a statement of your qualifications. Is this an 6 accurate statement of your qualifications? 7 MR. FORD: Yes, it is. 8 MR. SANDINO: What is your current position with the 9 Department? 10 MR. FORD: I am the chief of the ecological studies 11 branch, environmental report manager with them. 12 MR. SANDINO: What are your responsibilities with 13 the Department for this position? 14 MR. FORD: I supervise the people involved with the 15 fishery issues involved with -- the Department's component 16 of the interagency ecological studies program, program 17 manager for the program involved with the mitigation of 18 fish losses due to the project facilities operations. And 19 I'm also involved with CalFed planning, CalFed Ops Group. 20 MR. SANDINO: You have in front of you DWR Exhibit 21 36 which is your written testimony for Phase VI. Is it a 22 true and correct copy of your testimony? 23 MR. FORD: Yes, it is. 24 MR. SANDINO: Would you, please, summarize your 25 testimony for the Board. CAPITOL REPORTERS (916) 923-5447 11054 1 MR. FORD: I'd be happy to. Good afternoon, Board 2 Members. During the hearings that led up to the adoption 3 of the Board's Water Rights Order 95-6 the Department of 4 Water Resources staff testified regarding the potential 5 benefits of interchangeable points of diversion for the 6 State Water Project and Central Valley Project in the 7 Delta. 8 Today I'd like to briefly review some of those 9 fishery benefits and describe how the Central Valley 10 Project and the State Water Project have actually used 11 those interchangeable points of diversion to benefit fish 12 in recent years. 13 First, the interchangeable points of diversion 14 can be used to take advantage of differences in fish 15 entrainment between the state and the federal Delta 16 pumping plants. Fish entrainment rates at the state and 17 federal facilities can be quite different at any time. 18 Such differences vary with the species of fish and are 19 usually of a short duration. 20 The projects could use interchangeable diversion 21 points to take advantage of fish entrainment differences 22 to shift a greater portion of their diversions to 23 whichever facility has the lowest entrainment rate and, 24 thereby, reduce the overall number of fish lost per 25 acre-foot diverted. CAPITOL REPORTERS (916) 923-5447 11055 1 State and federal operators with the concurrence 2 of the Department of Fish and Game and the U.S. Fish and 3 Wildlife Service did take advantage of -- or have taken 4 advantage of short-term differences in entrainment rates 5 to shift a portion of their exports between the facilities 6 to reduce the overall entrainment of Delta smelt in 1994 7 and '97. 8 In June of 1994 a portion of the State's exports 9 was diverted through the federal facility. And in May of 10 1997 a portion of the federal export was diverted through 11 the state's Banks pumping plant. In both years the 12 pumping shift lasted only a few days. 13 The second interchangeable points of Delta 14 diversions can be used to benefit the fish by taking 15 advantage of seasonal differences in fish abundances. The 16 occurrence, life stage and abundance of fish in the Delta 17 vary seasonally depending on species. 18 State and federal project operations have been 19 adjusted repeatedly over the year to take advantage of 20 these seasonal differences, shifting pumping from seasons 21 that were thought to be the most harmful to fish to 22 seasons thought to be less harmful. 23 An early example of this was the State Water 24 Resources Control Board Decision 1385 limitation on SWP 25 and CVP pumping in May, June and July to protect stripe CAPITOL REPORTERS (916) 923-5447 11056 1 bass. This limitation caused the projects to forego some 2 of their diversions during the months when the young bass 3 were particularly susceptible to entrainment. 4 D-1485 allowed the projects to try to make up the 5 water later in the year. However, it was also recognized 6 that in some years the capacity of the federal pumping 7 plant was not sufficient to allow makeup of all of the 8 federal water supply. To reduce the water supply impact 9 on the CVP D-1485 authorized the use of the state's 10 pumping plant to make up CVP foregone water due to stripe 11 bass curtailment. 12 The state and the federal projects also used the 13 additional flexibility provided through 95-6 to 14 interchange their points of diversion in 1995, '96 and '97 15 to take advantages of differences in seasonal abundance of 16 other sensitive fish and to cooperate with the 17 implementation of portions of the Department of Interior's 18 Anadromous Fishery Restoration Plan. 19 In 1995 the fishery agencies and other interested 20 parties requested federal and state pumping, water 21 projects to reduce their Delta exports from April 15th 22 through May 15th to improve the survival of the salmon 23 smolts migrating out of the San Joaquin River system. 24 A major concern with this proposal was that the 25 Central Valley Project's limited export capability made it CAPITOL REPORTERS (916) 923-5447 11057 1 impossible for the federal project to make up the foregone 2 water supply later in the year. To address this concern 3 it was agreed that the state facilities could be used to 4 make up the federal water supply in the fall. 5 The ability to interchange diversion points was 6 critical in reaching the agreement to proceed with the 7 pumping curtailments. However, due to the extremely wet 8 spring the San Joaquin River flow increased and the export 9 demands dropped enough so that the state and federal 10 projects did not need to reduce their pumping any further 11 to achieve the desired fishery objectives. 12 The Central Valley Project, therefore, did not 13 have to forego any water that year that needed to be made 14 up by additional pumping, but it would have if the year 15 had turned out to be drier than it did. 16 The fishery agencies made similar requests to 17 reduce exports in the spring of '96 and '97. In 1996 the 18 Department of Water Resources and the Bureau of 19 Reclamation agreed to limit their combined exports to 25 20 percent of the San Joaquin River flow. The project 21 subsequently reduced their exports by about 200,000 22 acre-feet to achieve that objective. 23 By the end of the year all of the foregone water 24 supply was recovered. To do so about 130,000 acre-feet of 25 Central Valley Project water was pumped to the state's CAPITOL REPORTERS (916) 923-5447 11058 1 pumping plant. In 1997 the State Water Project and the 2 Central Valley Project, again, curtailed their pumping 3 during the spring to improve the survival of salmon and 4 Delta smelt. These curtailments were made with the clear 5 expectation that any water foregone during the spring 6 would be made up later. 7 The Department of Water Resources and the Bureau 8 proposed several plans to do this, all of which included 9 some use of the State Water Project facilities to make up 10 the federal water supply. 11 Early and heavy rain later that year made the 12 final agreement and implementation of the final make up 13 plan unnecessary. But the fact that the -- they did have 14 the ability was critical in the decision to do the 15 curtailment earlier in the year. 16 The Central Valley and the State Water Project 17 might also shift points of diversion to help reduce the 18 numbers of predators at the Delta pumping plants. Fish 19 entrainment at the state and federal pumping facilities 20 may be lost to predators at screens or during trucking and 21 handling. Of these sources of losses predation is 22 probably the biggest problem. 23 Studies indicate that substantial numbers of fish 24 are probably being eaten by one- or two-year-old stripe 25 bass, white catfish and other predatory fish at the CAPITOL REPORTERS (916) 923-5447 11059 1 facilities. An interagency ecological program study found 2 that predators appear to be able to integrate from Clifton 3 Court Forebay when the radio gates are opened. 4 This raises the possibility that flexibility at 5 the point of diversion might be used to essentially starve 6 the predators in the facility and promote their 7 immigration to other areas where food is more available. 8 However, studies are needed to test the feasibility of 9 this option. 10 At very least it seems that regular shifts in the 11 locations of exports would decrease the suitability of 12 export facilities as habitat for the predators by reducing 13 the stability of their food supply. Other predator 14 control operations are also easier when alternative 15 diversion points are available. 16 Various predator control programs have been 17 considered to reduce predator populations at the state and 18 federal export facilities, including the removal of the 19 predators with trawls, sports or commercial fishing and 20 drawdown of facilities that concentrate the predators. 21 There are a number of concerns about each of 22 these alternatives and the long-term predator program 23 remains to be developed. However, it is likely that 24 alternative diversion points would provide significant 25 flexibility in the implementation of predator control. CAPITOL REPORTERS (916) 923-5447 11060 1 For example, alternative diversion points would 2 allow operators to isolate a single facility and initiate 3 intensive control measures. An example of this is at the 4 federal facility where they shut down some of the 5 secondaries periodically to -- screens to take out large 6 bass that are in front of the screens. 7 Interchangeable diversion points could also help 8 in the management of aquatic weeds and other debris at the 9 facilities. Both the Central Valley Project and the State 10 facility have problems with aquatic weed accumulation at 11 the fish facilities. Although aquatic plants and debris 12 have always been a maintenance concern, the problem has 13 been more severe in recent years. 14 Difficulties at the federal facility are caused 15 predominantly by water hyacinth while the State Water 16 Project has had extreme buildups of the koon tail. 17 Aquatic weed infestations have significantly increased 18 fish losses, restricted pumping and increased maintenance 19 costs, floating mats of aquatic weeds lodge on the trash 20 racks in the fish facilities reducing head differential 21 and causing pumping curtailments. 22 Clogging of the fish screens at the facility has 23 also significantly reduced screen efficiency. For 24 example, initial results from the Tracy fish facility 25 indicate that heavy hyacinth accumulation renders the CAPITOL REPORTERS (916) 923-5447 11061 1 screens ineffective at times. 2 Many plant fragments are also carried by the 3 water into the fish holding tanks where they make fish 4 counting more difficult and increase the mortality during 5 the salvage operations, while alternative diversion points 6 could help operators to focus and control individual 7 facilities and reduce the water supply impacts of these 8 operations. 9 However, extreme weed problems in recent years 10 indicate that there may be times when the plant removal 11 systems may be overwhelmed. Under these circumstances 12 shifting exports to the other facilities with fewer weed 13 problems could be a way to reduce fish losses. 14 In conclusion, the State Water Project and the 15 Central Valley Project have used interchangeably points of 16 diversion to benefit Delta fish by taking advantage of 17 short-term differences in entrainment rates at the two 18 facilities and longer term seasonal differences in the 19 abundance of fish in the Delta. 20 There are also several other ways interchangeable 21 points of diversion might be used in the future to improve 22 the management and efficiency of existing facilities to 23 benefit Delta fishes. This concludes my testimony. Thank 24 you. 25 C.O. BROWN: Thank you, Mr. Ford. CAPITOL REPORTERS (916) 923-5447 11062 1 Mr. Sandino, does that conclude your direct? 2 MR. SANDINO: Yes, it does. 3 C.O. BROWN: Mr. Campbell, is your direct concluded? 4 MR. CAMPBELL: Yes, I believe it concludes the 5 direct of the panel with the exception of the completion 6 of Dr. Kjelson's testimony. 7 C.O. BROWN: All right. We'll start 8 cross-examination, then. Let's see a show of hands, 9 again, of those who wish to cross and, Vicky, if you can 10 give me the cards we'll shuffle them, unless there's a 11 volunteer to go first. 12 MS. WHITNEY: Are you going to read them off? 13 MEMBER FORSTER: Mr. Herrick. 14 C.O. BROWN: Mr. Herrick, you want to go first? 15 MR. HERRICK: No. 16 C.O. BROWN: Mr. Maddow, did you? 17 MR. MADDOW: No, unless it's necessary. 18 C.O. BROWN: I have: Mr. O'Laughlin, Mr. Nomellini, 19 Mr. Maddow, Mr. Jackson, Mr. Herrick, Mr. Birmingham, 20 Mr. Atlas, Mr. Wilkerson and Mr. -- 21 MR. JACKSON: Mr. Suyeyasu. 22 C.O. BROWN: Suyeyasu and Eric Garner. Anyone else? 23 Did I miss anyone? 24 MR. TURNER: Question, Mr. Brown. 25 C.O. BROWN: Yes, Mr. Turner. CAPITOL REPORTERS (916) 923-5447 11063 1 MR. TURNER: Dr. Kjelson has not as yet presented 2 his direct examination, but would he still be an 3 appropriate member to the cross-examination panel 4 pertaining to questions raised within his expertise, or 5 should -- does he need to await the opportunity to present 6 his direct? 7 C.O. BROWN: You can have him join the panel, but 8 before he answers any questions, clear it with me. 9 MR. TURNER: Okay. Thank you. 10 C.O. BROWN: See what the question is. 11 DR. KJELSON: What I may only do is just advise my 12 panel members, suggest an answer and they can answer if 13 that's fine. 14 C.O. BROWN: That will be all right. 15 Okay. First one up is Mr. O'Laughlin. 16 MR. O'LAUGHLIN: No questions at this time, 17 Mr. Brown. 18 C.O. BROWN: That means you pass. You know how 19 Mr. Stubchaer is: One pass may be it. 20 MR. O'LAUGHLIN: I put my name in because the Chair 21 has told us previously that if you may have questions, you 22 put your name in. And I put my name in. 23 C.O. BROWN: Okay. That's fine. 24 MR. TURNER: Before we proceed, Mr. Brown, I'm 25 sorry. I recall this morning two matters that had came up CAPITOL REPORTERS (916) 923-5447 11064 1 in connection with the questions that were presented by 2 the Board Members to some of the witnesses during the 3 direct examination. 4 And I wanted to see whether you'd like me to try 5 and respond to those with the people that are available; 6 specifically, Mr. Renning had been asked about the -- I 7 believe, you, Mr. Brown, had been the person that asked 8 him about the quantities of the stored and the unstored 9 waters that were being diverted at the Delta under the 10 various alternatives. 11 C.O. BROWN: We'll pass on those and if they're 12 asked by someone else -- 13 MR. RENNING: Mr. Brown, I told you the wrong 14 answer. 15 C.O. BROWN: Oh, in that case, yes. 16 MR. TURNER: Then, in addition, Mr. Del Piero had 17 asked about the quantities of water that were going to be 18 diverted under Alternative 4 and 8. Do you want us to put 19 that off or do you want us to respond to that? 20 C.O. BROWN: We will hold on that, also, until 21 Mr. Del Piero gets back and see, someone else may ask the 22 question, Mr. Turner. Thank you for reminding me of 23 those. Let me see. 24 There was a correction you wished to make, 25 though, Mr. Turner, on an earlier answer? CAPITOL REPORTERS (916) 923-5447 11065 1 MR. TURNER: Yes. Mr. Renning, earlier this morning 2 you were asked by Mr. Brown about some quantities of 3 stored and unstored waters that would be diverted under 4 the various alternatives. Would you be able to reanswer 5 that question? 6 MR. RENNING: Yes. Mr. Brown, you had asked me 7 about how much water would be moved under certain 8 circumstances and how that would affect the yield of the 9 Central Valley Project. 10 C.O. BROWN: Yes. 11 MR. RENNING: Okay. My testimony, I had two 12 examples for Alternative 4 and Alternative 8. And that 13 under Alternative 4 the average use of the joint point of 14 diversion under balanced conditions was about 99,000 15 acre-feet, or 41 percent of the total use. And the 16 corresponding figures for Alternative 8 were 194,000 17 acre-feet or 56 percent of the total use. 18 Could you put up 10-C -- pardon me, 10-D. This 19 figure shows the SWP wheeling for the CVP, or the use of 20 joint point of diversion. And as you'll see under 21 Alternative 4 -- 22 MR. NOMELLINI: Does that have an exhibit number? 23 MR. RENNING: Yes, this is Exhibit Number 10-E. 24 This shows that under Alternative 4 that the joint point 25 of diversion was used for an average basis of about CAPITOL REPORTERS (916) 923-5447 11066 1 218,000 acre-feet. And Alternative 8 was used on an 2 annual basis of 347,000 acre-feet. 3 Now, if you'll refer to Exhibit 10-D, 10-D shows 4 the changes in the average annual deliveries of the CVP 5 and SWP under each of the alternatives as compared to 6 Alternative 2. And here you'll see that under Alternative 7 4 the changes in CVP deliveries were an average of 92,000 8 acre-feet per year and Alternative 8 was 247,000 acre-feet 9 per year. 10 Now, what that means is that even though there 11 was an annual average use under Alternative 4 of the joint 12 point of 218,000 acre-feet, that only resulted in an 13 annual average change to the deliveries of the CVP of 14 about 92,000 acre-feet. Now, your question also addressed 15 yield. 16 C.O. BROWN: Yes. 17 MR. RENNING: Now, yield has a number of definitions 18 and as a matter of fact, there's court cases going on that 19 that question is relevant to. And generally speaking, 20 yield refers to deliveries over the critical period. 21 And if you'll refer to Exhibit 10-G, if you look 22 at Exhibit 10-G you will notice that in the two principal 23 critical periods that we've had in this last century, that 24 being the 1928 through '34 period and the recent period 25 1987 through '93 -- pardon me, '94, I guess, you will see CAPITOL REPORTERS (916) 923-5447 11067 1 that use of the joint point during those periods was very 2 low. 3 And the reason for that is that the projects at 4 that time, their operations are constrained by the basic 5 water supply. And even though there was capacity at Banks 6 that the CVP could have used, it didn't need to, because 7 we already had more capacity than we could use at Tracy. 8 So during those critical periods the joint point of 9 diversion is not as important as it would be in other 10 periods. And that corrects the answer that I gave you 11 earlier this morning. 12 C.O. BROWN: Thank you, Mr. Renning. 13 Thank you, Mr. Turner. 14 Mr. Suyeyasu, you're up. 15 MR. JACKSON: Mr. Suyeyasu will not be here until 16 tomorrow morning. 17 C.O. BROWN: Mr. Garner. 18 MR. GARNER: No questions at this time. 19 C.O. BROWN: We may have to call Mr. Birmingham 20 back. 21 Mr. Atlas. 22 // 23 // 24 // 25 // CAPITOL REPORTERS (916) 923-5447 11068 1 ---oOo--- 2 CROSS-EXAMINATION OF THE DEPARTMENT OF THE INTERIOR, 3 DEPARTMENT OF FISH AND GAME AND 4 DEPARTMENT OF WATER RESOURCES 5 BY TEHAMA-COLUSA CANAL AUTHORITY 6 BY MR. ATLAS 7 MR. ATLAS: I have some questions for Mr. Renning. 8 Mr. Renning, you said in conclusions to your 9 testimony that -- words to this effect, "Joint point of 10 diversion will improve water supply reliability of CVP 11 water supply south of the Delta." I think that was your 12 first conclusion, right? 13 MR. RENNING: Yes. 14 MR. ATLAS: Does the joint point of diversion do 15 anything for the CVP contractors in the Sacramento Valley? 16 MR. RENNING: No, it should not affect them at all. 17 MR. ATLAS: Either way, either positively or 18 negatively? 19 MR. RENNING: That's right. 20 MR. ATLAS: Okay. The alternatives, if I sort of 21 summarize the various alternatives, you said that those 22 would result in an increase in annual CVP deliveries of a 23 range of the low of about 45,000 acre-feet and the high 24 about 247,000 acre-feet. 25 MR. RENNING: Yes. And that's deliveries south of CAPITOL REPORTERS (916) 923-5447 11069 1 the Delta. 2 MR. ATLAS: Okay. Now, is that as an example, and 3 correct me if I'm wrong, as an example then under 4 Alternative 4 you said that there's an increase of about 5 200,000 acre-feet of delivery south of the Delta and about 6 50 percent of that, or around 99,000 acre-feet moves from 7 northern reservoirs to export? Did I get that right? 8 MR. RENNING: What I said was that in Alternative 4 9 the annual -- average annual use of the joint point of 10 diversion was for a figure about 218,000 acre-feet. 11 And 41 percent of that, or 99,000 acre-feet is water that 12 is moved under balanced conditions, meaning that it would 13 be moving from reservoirs north of the Delta to south of 14 the Delta. 15 MR. ATLAS: So in layman's terms, does that mean 16 there's about 99,000 acre-feet more water that would be 17 available to CVP contractors south of the Delta than 18 without the joint point of diversion under Alternative 4? 19 MR. RENNING: Not necessarily. That water moving 20 from north of the Delta, moving from reservoir storage 21 north of the Delta could be releases that we were having 22 to make for -- otherwise having to make for other 23 purposes. And that because of our capacity constraints in 24 the Delta we're not able to divert that. And that could 25 be water that we could use the joint point of diversion to CAPITOL REPORTERS (916) 923-5447 11070 1 divert. 2 MR. ATLAS: Well, let me ask the question in a 3 little bit different way, and I appreciate your answer. 4 I'm not sure I understand it, but that's my problem, not 5 yours. 6 Is the 99,000 acre-feet that I just asked you 7 about, is that an example of an increase in CVP yield? 8 MR. RENNING: No. 9 MR. ATLAS: Can you give me an example of increase 10 in CVP yield, then? 11 MR. RENNING: Well, let me step back. Potentially 12 it could be an increase in yield. You would have look at 13 the -- make a detailed look at the studies to see whether 14 that quantity of water actually results in a long-term 15 basis on actual increases. 16 The interaction between increases in deliveries 17 and use of the joint point of diversions is complex and 18 requires a lot of detailed study to come up with answers 19 if you have a very focused question. We haven't tried to 20 answer every question that might come up and I simply 21 can't answer your question in a good way right now. 22 MR. ATLAS: If the -- let me ask this, this is sort 23 of the bottom line question, I guess. 24 What you said, in effect, is that the joint point 25 of diversions will under some scenarios and under some CAPITOL REPORTERS (916) 923-5447 11071 1 circumstances increase CVP yield, right? 2 MR. RENNING: Yes. 3 MR. ATLAS: Could that yield be allocated to 4 Sacramento Valley CVP contractors? 5 MR. TURNER: I object. It has nothing to do with 6 the use of the joint point. It has to do with what's 7 going to happen if, in fact, that joint point is approved. 8 It's a totally separate issue which has to do with 9 allocations of project water. 10 C.O. BROWN: Mr. Atlas. 11 MR. ATLAS: Well, the question is whether or not 12 there's water available if the use of the joint point of 13 diversion increases the amount of CVP water that's 14 available. Point of our -- of my question is, then, maybe 15 we're leading to a condition that we'd like the Board to 16 impose on the use of the joint point of diversion. 17 C.O. BROWN: Overruled. Answer the question if you 18 know the answer. 19 MR. RENNING: I'm sorry, could you ask the question 20 again? 21 MR. ATLAS: Question is: If the use of the joint 22 point of diversion increases the CVP yield, could that 23 yield be allocated to Sacramento Valley CVP contractors? 24 MR. RENNING: First of all, I don't think that use 25 of the joint point of diversion is going to affect CAPITOL REPORTERS (916) 923-5447 11072 1 Sacramento Valley contractors. I think that the water 2 allocations that would be made for them would be the same 3 in the absence of use of the joint point of diversion. 4 Also, we're back to this question of what yield 5 is. And as I explained in my clarification of my answer 6 to Mr. Brown earlier, I feel the joint point of diversion 7 does not necessarily help the project over the critical 8 period, because we're not necessarily capacity constrained 9 at that time. And so in many of the traditional 10 definitions of yield, it does not help project yield. 11 MR. ATLAS: Instead of getting caught up in the 12 question of yield, let me ask it this way: Does the use 13 of the joint point of diversion provide some additional 14 water supply that could be allocated to CVP contractors in 15 Sacramento Valley? 16 MR. RENNING: I don't think so. 17 MR. ATLAS: And is that -- are you -- you say that 18 because -- let me ask you: Separate yourself for a 19 moment, policy decision about whether or not water would 20 be allocated, which is sort of the basis of Mr. Turner's 21 objection, whether or not the Bureau would make the policy 22 decision to allocate. 23 From an engineering standpoint, is that your 24 answer: You don't think that there would be any 25 additional water available? CAPITOL REPORTERS (916) 923-5447 11073 1 MR. RENNING: Well, the process of determining what 2 a -- what the water allocation is to our contractors each 3 year, it is a matter of imposing a set of rules, so to 4 speak, on the hydrologic conditions that we have in that 5 particular year. 6 And the way in which we do that, whether we have 7 joint point of diversion or not, I don't think that would 8 affect in any way how we would decide how much water would 9 be allocated to our north of the Delta contractors. 10 MR. ATLAS: Doesn't the joint -- isn't the whole 11 point of asking for the joint point of diversion so that 12 you can increase the amount of CVP water that would be 13 delivered in the export areas? 14 MR. RENNING: Yes. It's to help us to make use of 15 water supplies that are available to us in the Delta that 16 we don't have the ability to divert. 17 MR. ATLAS: Well, excuse this layman, then. Is that 18 water that my clients, they stand at the Red Bluff 19 Diversion Dam, are you saying that's not water that 20 they'll see pass the Red Bluff diversion Dam, pass the 21 headworks of the Tehama-Colusa Canal on its way to export 22 that would not, perhaps, otherwise have passed that point 23 were it not for the joint point of diversion? 24 MR. RENNING: Well, I think your question has to do 25 with how our water allocation policy is implemented. CAPITOL REPORTERS (916) 923-5447 11074 1 MR. ATLAS: I asked you not to tell me policy, I 2 know policy until I'm tired of policy. I want to know 3 from an engineering standpoint if you can -- 4 MR. RENNING: I guess what I'm giving you is the 5 engineering explanation of our policy. 6 MR. ATLAS: Okay. 7 MR. RENNING: And the way that the numbers -- 8 MR. ATLAS: I'm glad to know that there is one. 9 MR. RENNING: The way that the numbers crank out in 10 that is that there would be a particular quantity, or a 11 particular deficiency imposed upon north of Delta users 12 and a particular deficiency imposed on south of Delta 13 users. 14 And that -- and whether we have joint point of 15 decision -- or joint point of diversion in place would not 16 affect the decision on how much water would be allocated 17 to north of Delta users. It could incrementally affect 18 how much water was allocated to south of Delta users, but 19 I don't think it would have any effect on north of Delta 20 users. 21 MR. ATLAS: So, then, if the Board, this Board were 22 to draft a condition on the use of the joint point of 23 diversion that said that the use of the joint point would 24 be limited in such a way so as not to adversely impact 25 Sacramento Valley CVP contractors, the Bureau should have CAPITOL REPORTERS (916) 923-5447 11075 1 no objection to such a condition; is that right? 2 MR. RENNING: Well, I'm not sure that we would 3 believe that such a condition was appropriate for the 4 Board to impose upon us. I think that our agency's 5 position is that those decisions are our decisions and not 6 the Board's decision. 7 MR. ATLAS: Well, I know that. But you said, "Well, 8 the joint point of diversion will have no effect positive 9 or negative on Sacramento Valley contractors." So such a 10 condition could not be objectionable, could it? 11 MR. RENNING: Well -- 12 MR. CAMPBELL: Objection. Asked and answered and 13 argumentative. 14 C.O. BROWN: Mr. Atlas. 15 MR. ATLAS: I'd like an answer. 16 C.O. BROWN: Yeah, I would, too. 17 MR. ATLAS: Thank you. 18 MR. RENNING: I think whether we would propose that 19 we would accept such a condition, or whether we would 20 even -- or how we will react to such a condition being 21 imposed upon us, I think is a legal issue which at least 22 I'm not prepared to address at this time. 23 I think that there are some underlying legal 24 matters here that would have to be discussed with our 25 attorneys and our decision makers in our front office. CAPITOL REPORTERS (916) 923-5447 11076 1 MR. ATLAS: I have no other questions. Thank you. 2 C.O. BROWN: Thank you, Mr. Atlas. 3 Mr. Birmingham had to leave so, Mr. Herrick. 4 ---oOo--- 5 CROSS-EXAMINATION OF THE DEPARTMENT OF THE INTERIOR, 6 DEPARTMENT OF FISH AND GAME AND 7 DEPARTMENT OF WATER RESOURCES 8 BY SOUTH DELTA WATER AGENCY 9 BY JOHN HERRICK 10 MR. HERRICK: Excuse my mess. Thank you, 11 Mr. Chairman, Board Members, John Herrick for the South 12 Delta Water Agency. 13 Let me start with Mr. Robinson. Which one is 14 Mr. Robinson? 15 MR. ROBINSON: Here. 16 MR. HERRICK: Sorry, just kidding. Mr. Robinson, I 17 note in your testimony that you've done some sort of 18 analysis to determine whether or not joint point 19 activities would adversely effect South Delta water users. 20 Is that a fair statement? 21 MR. ROBINSON: I participated on a team that 22 provided the State Board Resources Control Board's staff 23 with the draft documentation that went into the Chapter 24 13. To the extent that that addresses your concerns, I 25 participated, yes. CAPITOL REPORTERS (916) 923-5447 11077 1 MR. HERRICK: Okay. And when was that participation 2 of giving information to State Board staff? 3 MR. ROBINSON: Oh, it began about May of 1997 and 4 extended through September/October of '97. 5 MR. HERRICK: Okay. And is the information that you 6 gave to State Board staff available to all the parties in 7 this case? 8 MR. ROBINSON: Yes, it is. It's contained in the 9 Draft EIR. 10 MR. HERRICK: Okay. You state on page -- I guess 11 it's Page 1 of your testimony. It didn't have a page 12 number. It says that, in general, at stations located 13 downstream from the barriers water levels remain the same 14 as or slightly increased. 15 You see where you say that? 16 MR. ROBINSON: I recall where I say that. I don't 17 have my testimony in front of me at this point. 18 MR. HERRICK: Maybe you should get it. 19 MR. ROBINSON: Yes, I see where I said that. 20 MR. HERRICK: Now, Mr. Robinson, have you 21 participated in the ISDP Program? 22 MR. ROBINSON: No, I have not. 23 MR. HERRICK: And in your development of information 24 that you provided to the Board staff, did you consult with 25 the people that worked on the ISDP? CAPITOL REPORTERS (916) 923-5447 11078 1 MR. ROBINSON: I talked to them early in the process 2 mainly about the availability of models and analytical 3 tools that they were using. 4 MR. HERRICK: Okay. Are you aware that since the 5 Grantline Barrier has been installed -- excuse me, the 6 temporary barrier, that the individuals downstream of that 7 are complaining of lowered water levels, not higher water 8 levels? 9 MR. ROBINSON: No, I'm not. 10 MR. HERRICK: Okay. And would that information 11 change the conclusions or the data that you gave the State 12 Board if that were true? 13 MR. ROBINSON: The data that was given to the State 14 Board was based upon DWR/DSM modeling results. Whether -- 15 whether the information that is being provided is 16 incorporated into those models, I couldn't tell you. 17 MR. HERRICK: Okay. But if the true facts are that 18 the water levels are different than the modeling, wouldn't 19 that be important in your consideration as to whether or 20 not joint point operations have an adverse effect? 21 MR. ROBINSON: It should be something that should be 22 considered, yes. 23 MR. HERRICK: Now, in your attachments to your 24 testimony -- let me get the numbers there, sorry, you have 25 Exhibits 11-B through 11-E, you're showing average minimum CAPITOL REPORTERS (916) 923-5447 11079 1 water levels in various parts of South Delta channels; is 2 that correct? 3 MR. ROBINSON: Correct. 4 MR. HERRICK: And that looks at the water levels 5 resulting from the various joint point alternatives; is 6 that correct? 7 MR. ROBINSON: That is correct. 8 MR. HERRICK: Now, in order to determine whether or 9 not there is an adverse impact due to joint point 10 activities, we would want to determine whether or not that 11 joint point pumping lowers a water level to a point where 12 a user might be impaired; is that correct? 13 MR. ROBINSON: That would probably be a reasonable 14 criteria, yes. 15 MR. HERRICK: And where in your data do you 16 present -- or let me back up. 17 Did you present any data to the State Board that 18 indicates at what levels diverters are impaired? 19 MR. ROBINSON: Our team made no assumptions about 20 criteria thresholds at which, you know, one might say that 21 there was a significant difference. That was the decision 22 of State Board staff. 23 MR. HERRICK: Do you know if the State Board staff 24 made any decision as to what levels were important before 25 diverters were harmed? CAPITOL REPORTERS (916) 923-5447 11080 1 MR. ROBINSON: I'm not aware of what those might 2 have been on this particular analysis. 3 MR. HERRICK: Do you know whether or not those 4 levels are set forth in the DEIR? 5 MR. ROBINSON: I do not. 6 MR. HERRICK: Now, would you agree that the time -- 7 the most risk to local diverters in the South Delta from 8 lowered water levels would be the time when the water 9 level is at the lowest; is that an actual assumption? 10 MR. ROBINSON: Excuse me. It would require me to 11 make some assumptions about that risk, you know. What 12 risk are you talking about? 13 MR. HERRICK: Let's back up, then. Do you agree 14 that there are tidal actions in the South Delta that 15 result in changes in the water levels? 16 MR. ROBINSON: Yes. 17 MR. HERRICK: And those tidal actions are both 18 positive and negative, and by that I mean above mean sea 19 level and below mean sea level? 20 MR. ROBINSON: Correct. 21 MR. HERRICK: And are you aware of the January 1980 22 report authored by the Bureau and the South Delta on the 23 effects of the CVP? 24 MR. ROBINSON: No, I'm not. 25 MR. HERRICK: Okay. So none of that information was CAPITOL REPORTERS (916) 923-5447 11081 1 what you provided to the State Board in the analysis from 2 that 1980 report; is that correct? 3 MR. ROBINSON: That's correct. 4 MR. HERRICK: Okay. Would you agree, generally, 5 with the assertion that the operation of the CVP export 6 pumps has an adverse effect on water levels in the South 7 Delta? 8 MR. ROBINSON: Again, adverse -- I mean define -- I 9 mean it's like -- define "adverse" for me. 10 MR. HERRICK: Sure. Does the operation of the CVP 11 export pumps in the South Delta lower water levels where 12 they would be absent the export pumps? 13 MR. ROBINSON: That's my understanding, yes. 14 MR. HERRICK: Okay. So we have a whole bunch of 15 charts that show average minimum water levels; is that 16 correct? 17 MR. ROBINSON: That's correct. 18 MR. HERRICK: That you presented? 19 MR. ROBINSON: That's correct. 20 MR. HERRICK: Okay. Now, the average minimum water 21 levels, then, doesn't tell us where the low water levels 22 are; is that correct? 23 MR. ROBINSON: These -- these average numbers are 24 developed from a 72-year period of record. And they're 25 mean monthly values that have been averaged. So it would CAPITOL REPORTERS (916) 923-5447 11082 1 get you 72 years' worth of averages. So to account for 2 diurnal fluctuations, no, they do not. 3 MR. HERRICK: Okay. But if we're trying to 4 determine whether there are adverse effects, would you 5 agree that an average number doesn't necessarily tell us 6 anything? 7 MR. ROBINSON: You know there, again, I mean adverse 8 effect in -- you need to define for me, you know, both 9 your criteria for adverse as well as your effect. These 10 are means. And the value that all of these analyses have 11 lie in the relative differences between alternatives as 12 opposed to specific point values, or something that is not 13 necessarily going to be represented within the models. 14 MR. HERRICK: Well, let's take an example, then. On 15 11-C of your chart, let's just pick a month, how about 16 April 16th through the 30th. And we see that some of the 17 alternatives are higher than Alternative 1, couple of them 18 are real high. So relatively speaking, there's a range 19 there of the effects; is that correct? 20 MR. ROBINSON: Okay. My figures don't have the 21 exhibit numbers on them. I'm assuming you're talking 22 average minimum water levels by period at Middle River 23 upstream of the barrier? 24 MR. HERRICK: Yes. 25 MR. ROBINSON: And we're talking about April 1st CAPITOL REPORTERS (916) 923-5447 11083 1 through April 15th time period? 2 MR. HERRICK: I just chose the 16th to the 30th. 3 MR. ROBINSON: 16th through 30th, okay. 4 MR. HERRICK: But, again, the question is: That 5 shows relative differences, correct? 6 MR. ROBINSON: Correct. 7 MR. HERRICK: And shouldn't we need to know where 8 that, whatever you define "harm" as, but where that harm 9 line is in order to evaluate whether those relative 10 differences are meaningful? 11 MR. ROBINSON: That would be nice to have. 12 MR. HERRICK: Okay. Let's make an assumption -- and 13 I don't have any data, we're just making an assumption. 14 Let's say that the minimum water level of two-and-a-half 15 feet is a point where somebody experiences a problem 16 diverting in the Delta. Let's just assume that for the 17 next question or two. Okay? 18 MR. ROBINSON: Okay. 19 MR. HERRICK: So if that were the assumption, then 20 we would see 7 of the 9 alternatives would be below that 21 point, correct? 22 MR. ROBINSON: That's correct. 23 MR. HERRICK: And we could assume, then, that the 24 diverter on that Middle River portion were having problems 25 wouldn't care which alternative it is if it's hurting CAPITOL REPORTERS (916) 923-5447 11084 1 them. Would that be a fair assumption? 2 MR. ROBINSON: In that two-and-a-half feet that if I 3 was a diverter that I was being affected and I wanted more 4 than two-and-a-half feet I would like to see Alternative 7 5 or 8, if the barriers in place that would allow water 6 surface elevations at that location to be higher than your 7 criteria. 8 MR. HERRICK: Okay. Let's take another assumption, 9 then. Let's say one foot is that cutoff level for harm 10 for that diverter, okay? 11 MR. ROBINSON: Okay. 12 MR. HERRICK: Then we would have all the 13 alternatives better and we would have no problem; is that 14 correct? 15 MR. ROBINSON: Correct. 16 MR. HERRICK: So unless we know that bottom line 17 level at which harm starts occurring to the diverters, 18 what does your chart tell us? 19 MR. ROBINSON: The chart tells us the relative 20 difference being, basically, I look at that and I say that 21 I move from Alternative 1 to Alternative 2 and I see 22 implementation of the plan has resulted in a slight 23 increase in the minimum -- average minimum water surface 24 elevation at this location, that very little differences 25 occurred. CAPITOL REPORTERS (916) 923-5447 11085 1 And as a result of implementation of the joint 2 point alternatives up to where you tend to get a 3 incremental loss in the benefit accrued with -- or the 4 implementation of the plan with Alternative 6; barriers in 5 place, with Alternative 7 and 8, make a big difference. 6 And Alternative 9 is relatively similar to implementation 7 of the plan. 8 MR. HERRICK: Okay. But absence information that 9 tells us at what level somebody might be harmed, how is 10 this -- does this help us to determine whether or not 11 joint point causes any adverse effects? 12 MR. ROBINSON: Relative to implementation of the 13 plan and the other alternative, yes, it does. 14 MR. HERRICK: Okay. Now, we've had three years of 15 joint point operations; is that correct, since 1995? 16 MR. ROBINSON: I defer that question to one of the 17 hydrologic experts, the operations people. 18 MR. HERRICK: Okay. In the gathering of information 19 for eventual presentation to the State Board staff, did 20 you go look at historical data rather than just model 21 data? 22 MR. ROBINSON: I guess what historical data would we 23 be looking at? 24 MR. HERRICK: Whether it was all three years or four 25 years, do you agree we've had joint point pumping in the CAPITOL REPORTERS (916) 923-5447 11086 1 past? 2 MR. ROBINSON: I'm aware that we've had joint point 3 pumping. 4 MR. HERRICK: Okay. And we certainly had that 5 subject to WR 95-6, correct? 6 MR. ROBINSON: That's my understanding, yes. 7 MR. HERRICK: Now, I don't know, do you know whether 8 or not under D-1485 there was joint point pumping for 9 export decreases due to fishery actions for bass? 10 MR. ROBINSON: Again, I'm going to defer you to one 11 of the operational people that are here working the system 12 at the time. 13 MR. HERRICK: All right. Did you gather any data 14 for those time periods when we actually had joint point 15 operations to see if there were any adverse effects on 16 South Delta diverters? 17 MR. ROBINSON: I did not. 18 MR. HERRICK: Okay. And why did you not do that? 19 MR. ROBINSON: The tools at our disposal and the 20 models at our disposal were similar to those provided by, 21 you know -- and used by the Board in their earlier 22 analysis. We didn't look into time frames or geographic 23 locations, you know, in a site specific manner like that. 24 MR. HERRICK: Were you present in previous phases of 25 this hearing? CAPITOL REPORTERS (916) 923-5447 11087 1 MR. ROBINSON: Yes. 2 MR. HERRICK: Okay. Were you here when South Delta 3 introduced South Delta Number 25, which are pictures of 4 Old River/Middle River? 5 MR. ROBINSON: No. 6 MR. HERRICK: Okay. Let me represent to you that 7 South Delta presented three pages of pictures -- well, the 8 original pictures, too. And it showed minimal or no flows 9 in Middle River in 1996. I'll just represent that to you, 10 the pictures aren't too good, but you can certainly look 11 at them if you want. 12 Did you do any analysis as to whether or not 13 joint point operations were the cause of the lowered water 14 levels in that time period 1996? 15 MR. ROBINSON: No. 16 MR. HERRICK: Would that be important in your 17 opinion in evaluating the effects of joint point whether 18 or not that was a cause of this dewatering of these 19 channels? 20 MR. ROBINSON: Certainly, those kinds of impacts are 21 important in evaluating the use of joint points of 22 diversion. But the temporal scales and the spatial scales 23 which are the analytical tools that we had at our disposal 24 to look at these alternatives from a broader perspective 25 are not capable of doing that. CAPITOL REPORTERS (916) 923-5447 11088 1 I think that we recognize that and the 2 processes, you know, in terms of CalFed and checks and 3 balances that would be in place when you actually would 4 ask yourself the question: Is it time to use it? Nope. 5 I assume these are the kinds of things to be in place and 6 to be considered. 7 MR. HERRICK: What kind of things would be in place? 8 MR. ROBINSON: You know what the potential effects 9 upon the South Delta water elevation would be in the time 10 specifically when joint points was proposed to be used. 11 MR. HERRICK: Okay. Let me just use, hypothetical, 12 November of 1996. Let's just assume that joint point 13 operations are going on and we've got a dewatered channel 14 there, what sort of protections should have been in place? 15 MR. ROBINSON: I guess I would -- I would presume 16 that consideration for these kinds of effects would be 17 considered in the CalFed Ops Group, or those 18 decision-making bodies that ultimately would have input 19 into whether or not joint points would be used. 20 MR. HERRICK: Was CalFed Operations Group in 21 operation in October of '96? 22 MR. ROBINSON: I don't believe so. 23 MR. HERRICK: Does the Bureau of Reclamation have a 24 position on whether or not joint point pumping should 25 proceed if the channel -- a channel such as that has been CAPITOL REPORTERS (916) 923-5447 11089 1 dewatered? 2 MR. ROBINSON: I think that we believe that these 3 kind of affects, certainly, should be considered in the 4 use of joint point. 5 MR. HERRICK: Do you believe that if the actual data 6 shows a lower level of water than the modeling does, then 7 that should be presented before this Board in their 8 consideration of joint point? 9 MR. ROBINSON: Could you run that by me again? 10 MR. HERRICK: What if the actual data is different 11 than the model data, do you think that's important in the 12 determination of whether or not there's adverse effects? 13 MR. ROBINSON: I think it's something that should be 14 considered, yes. 15 MR. HERRICK: Okay. And to your knowledge you 16 haven't done that investigation to this point, have you? 17 MR. ROBINSON: No, I haven't. 18 MR. HERRICK: Okay. Mr. Renning, I just want to 19 confirm something. I made some copies for an exhibit, but 20 obviously the color didn't come out, that's my fault. I 21 want to lay a little foundation and then I'll pass them 22 out here. I apologize. I thought Mike Ford was going to 23 be here who could confirm these documents. 24 Mr. Renning, you were involved recently in 25 discussions with DWR and South Delta Water Agency CAPITOL REPORTERS (916) 923-5447 11090 1 regarding the development of a response plan in order to 2 authorize joint point pumping this year; is that correct? 3 MR. RENNING: Yes. That's right. 4 MR. HERRICK: And as part of that discussion or 5 development of that response plan, DWR did some modeling, 6 did it not? 7 MR. RENNING: Yes, it did. 8 MR. HERRICK: Now, I've given you South Delta 9 Exhibit Number 57 which I'll just disperse in a little 10 bit, but also included, not as an exhibit, are the 11 originals of the models that Mr. Ford presented to me. 12 I just want you to confirm that those are copies 13 of some of the modeling that you received also; is that 14 correct? 15 MR. RENNING: Yes, these are charts of the modeling 16 DWR. 17 MR. HERRICK: And the modeling that DWR did -- the 18 chart that DWR produced is in color, unfortunately for me, 19 but would you confirm that? 20 MR. RENNING: Yes, it is in color. 21 MR. HERRICK: But, of course, the copy that's below 22 that which is South Delta 57 is black and white because it 23 was under? 24 MR. RENNING: That's right. The yellow trace on 25 this chart does not appear at all. CAPITOL REPORTERS (916) 923-5447 11091 1 MR. HERRICK: Right, there is actually three lines 2 there, but the third one doesn't appear at all? 3 MR. RENNING: Yes. 4 MR. HERRICK: I want you to confirm on the four 5 separate pages that the historic line is always the lower 6 of the two lines, the model line is above the historic 7 line; is that correct? Please, go through all four of 8 those pages. 9 MR. RENNING: Yes, that's right. 10 MR. HERRICK: All right. I'm going to go over now 11 South Delta 57. I brought some copies, I haven't mailed 12 them out yet and they don't have "SDWA 57" written at the 13 bottom of them. I apologize for that. 14 Now, Mr. Robinson, could you look at South Delta 15 57, please. 16 MR. ROBINSON: Okay. 17 MR. HERRICK: And bear in mind as per Mr. Renning 18 the upper line, the higher trace is always the model run 19 and the lower line on each of those four is the historical 20 run. 21 Now, you heard from my questions of Mr. Renning 22 that pursuant to an attempt to develop a response plan for 23 joint point that the DWR did some modeling to compare 24 historical levels with model levels. Did you get that 25 from Mr. Renning's answers? CAPITOL REPORTERS (916) 923-5447 11092 1 MR. ROBINSON: Sorry, would you state that again, 2 please? 3 MR. HERRICK: We heard from Mr. Renning that in an 4 effort to develop a response plan, DWR did modeling which 5 compared modeling levels in the South Delta at certain 6 places against history levels; in other words, the actual 7 measured levels. Did you get that from his answer? 8 MR. ROBINSON: Yes. 9 MR. HERRICK: Now, as we can see from each of the 10 four pages here the historic amount is actually below the 11 modeled amount, correct? 12 MR. ROBINSON: That's correct. 13 MR. HERRICK: In fact, Mr. Renning in developing a 14 response plan the parties agreed on a correction factor; 15 is that correct? 16 MR. RENNING: Yes, that's right. 17 MR. HERRICK: So, in other words the -- 18 MR. RENNING: Before you go on I think it needs to 19 be explained that the purpose for these graphs was to make 20 this comparison between the model and the historic data so 21 that that correction factor could be developed so that the 22 model could be used in a predictive manner. 23 MR. HERRICK: Let me go back to you, 24 Mr. Renning, maybe I didn't lay enough foundation. Was 25 one of the issues that South Delta was concerned in CAPITOL REPORTERS (916) 923-5447 11093 1 developing this response plan that the -- that the 2 modeling done to predict whether or not joint points 3 should be allowed should be tested against recent historic 4 events where we knew we had low water levels; is that 5 correct? 6 MR. RENNING: Yes, that's right. 7 MR. HERRICK: So the purpose of this modeling was to 8 see whether or not -- or how much or if some sort of 9 correction might be necessary; is that correct 10 MR. RENNING: Yes. 11 MR. HERRICK: And it was South Delta's position that 12 before we agreed that modeling should be used as a 13 predictor we should see whether or not it actually 14 reflects what was going on in the channels? 15 MR. RENNING: That's right. 16 MR. HERRICK: And the results of those modeling runs 17 done by Mr. Mike Ford at DWR, some of those results are 18 contained in South Delta 57; right? 19 MR. RENNING: Yes, that's right. 20 MR. HERRICK: Now back to you, Mr. Robinson. This 21 is work done by DWR recently with the assistance of the 22 Bureau of Reclamation, would you agree that this is 23 important information in determining whether or not joint 24 point operations have an effect on water levels in the 25 South Delta? CAPITOL REPORTERS (916) 923-5447 11094 1 MR. ROBINSON: You know this is really getting into 2 a new data set, information I'm not aware of. The 3 significance of this, I have no basis to know any points 4 of reference about what it really means, nor how it might, 5 you know, affect any model runs that were done or would be 6 done in the future. So -- 7 MR. HERRICK: Well, do you know how your model runs 8 that you did that resulted in your various exhibits, do 9 you know whether or not they have ever been compared to 10 historic channel levels? 11 MR. ROBINSON: I don't know. 12 MR. HERRICK: Okay. So it is possible that the 13 model runs that you did also overstate what the channel 14 levels are with joint point pumping? 15 MR. ROBINSON: Let me be clear about that, they're 16 not my model runs. They're runs that were provided by the 17 Department of Water Resources to me. I put them in a 18 spreadsheet and presented you with the results. 19 MR. HERRICK: Okay. So what -- 20 MR. RENNING: Mr. Herrick. 21 MR. HERRICK: Sure. 22 MR. RENNING: I think you're asking a number of 23 technical questions that really should be addressed by 24 some of the modelers if you're interested in pursuing 25 that. And I think that if you really want to have answers CAPITOL REPORTERS (916) 923-5447 11095 1 to those questions, that those witnesses would need to be 2 available for this process here. 3 MR. HERRICK: I appreciate that, but I do have more 4 questions. 5 Mr. Robinson, would you agree, then, that it is 6 possible that the model runs presented by you -- I'm not 7 saying that you ran them -- overstate the water levels in 8 the South Delta? 9 MR. ROBINSON: I have no basis or knowledge to be 10 able to make that statement. 11 MR. HERRICK: Okay. South Delta 57 doesn't help you 12 make that statement? 13 MR. ROBINSON: No it doesn't. 14 MR. HERRICK: Okay. And, again, if we don't know at 15 what level people are harmed according to your charts or 16 drafts, we can't tell whether or not the joint point is 17 harming those people, can we? 18 MR. TURNER: Previously asked and answered. 19 C.O. BROWN: I'm going to allow the question. 20 MR. ROBINSON: I believe my answer was it would be 21 nice to have a criteria that would allow you to assess 22 that. 23 MR. HERRICK: Okay. And the only reason I ask that 24 question is I believe you do state in your testimony that 25 the data, the Draft EIR shows that there's no significant CAPITOL REPORTERS (916) 923-5447 11096 1 adverse effect on South Delta water users resulting from 2 joint point operations? 3 MR. ROBINSON: I'd like you to direct me to my 4 testimony where I said that. 5 MR. HERRICK: I may be wrong. That's my 6 recollection of your testimony. And the purpose of it was 7 that's why you presented all of those charts. 8 MR. ROBINSON: I beg your pardon. Could you run the 9 question by me, again? 10 MR. HERRICK: I thought that was the reason you 11 included Exhibits 11-B through whatever it was, to show 12 that to your knowledge there are no adverse effects to 13 South Delta diverters resulting from joint point. 14 MR. ROBINSON: My purpose in providing them was they 15 were information not contained in the Draft EIR. And I -- 16 the analyses that were subsequently done. 17 MR. HERRICK: Mr. Robinson, one of the exhibits 18 provided while you were on the stand I believe is this; is 19 that correct, or was that somebody else? 20 MR. ROBINSON: Correct. 21 MR. HERRICK: Now, have you reviewed Chapter 13 of 22 the Draft EIR? 23 MR. ROBINSON: Yes, I have. 24 MR. HERRICK: And could you clarify for me the 25 assumptions that were put into the various alternatives CAPITOL REPORTERS (916) 923-5447 11097 1 for joint point diversions? And, specifically, do some of 2 those joint point alternatives assume that the '95 Delta 3 Water Quality Control Plan objectives are all met? 4 MR. TURNER: If I could, are you referring to 5 exhibit what, 11-M, that you were relying on? 6 MR. HERRICK: Well, I believe -- let me clarify 7 that. I believe that both the DEIR as well as 11-M rely 8 on assumptions for each joint point alternative. 9 Correct? 10 MR. ROBINSON: Correct. 11 MR. HERRICK: Okay. Now, I'm trying to explore your 12 understanding of those assumptions. 13 MR. ROBINSON: Okay. 14 MR. HERRICK: Is one of the assumptions that the 15 Bay-Delta Water Quality objectives are being met for any 16 of these alternatives? 17 MR. ROBINSON: Alternative 2 assumes that 95-6 18 Bay-Delta Water Quality Plan is in place, yes. 19 MR. HERRICK: Okay. As well as -- 20 MR. ROBINSON: All subsequent alternatives, 3 21 through 9. 22 MR. HERRICK: Now, when you say the Bay-Delta Plan 23 is implemented, does that mean that all the standards are 24 met or do you know? 25 MR. ROBINSON: I'd have to refer you to one of the CAPITOL REPORTERS (916) 923-5447 11098 1 modelers. 2 MR. HERRICK: Okay. Does that make a difference in 3 the analysis that you've done as to whether or not there's 4 adverse effects as to whether or not the plan is assuming 5 that all the objectives are being met? 6 MR. ROBINSON: Could you explain a little further. 7 MR. HERRICK: If the plan is assuming that the 8 water -- if the alternative is assuming that the water 9 quality standard at Vernalis is being met every year, does 10 that affect the analysis of that alternative as to whether 11 or not joint point is having adverse effects? 12 MR. ROBINSON: I don't know how to answer your 13 question. 14 MR. RENNING: Mr. Herrick, in these studies the 15 assumption for San Joaquin River operations is consistent, 16 assumption having to do with the interim New Melones 17 Operation Plan. And to the extent that the standards at 18 Vernalis are being met or are not met, those stay 19 consistent throughout all these studies. 20 Again, the operation of joint point of diversion 21 should not affect that in any way. 22 MR. HERRICK: Maybe I should ask you then, 23 Mr. Renning, I see on the bottom left of the Exhibit 11-M 24 it says run 622A. And that's the only one that says the 25 New Melones Interim Operation Plan is in place. CAPITOL REPORTERS (916) 923-5447 11099 1 Is it your understanding that the Interim 2 Operation Plan is in place for all of these joint point 3 alternatives? 4 MR. RENNING: That's my understanding and I'd have 5 to confirm that with the modelers, but we can do that for 6 you. 7 MR. HERRICK: Okay. Well, we can be pushy but we 8 can explore that further when I go through the DEIR with 9 you. 10 C.O. BROWN: It's 4:00 o'clock, Mr. Herrick. 11 Perhaps now would be a good time to break. 12 MR. HERRICK: I believe so. 13 C.O. BROWN: And we'll convene in the morning. I'll 14 give you the list for cross. After Mr. Herrick it's 15 Mr. Jackson, Mr. Maddow, Mr. Nomellini, Mr. Birmingham, 16 Mr. Garner and Mr. Suyeyasu. All right. 17 MR. HERRICK: Thank you, Mr. Chairman. 18 C.O. BROWN: We stand adjourned until tomorrow 19 morning at 9:00 a.m. 20 (The proceedings concluded at 3:48 p.m.) 21 ---oOo--- 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 11100 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 10886 through 11100 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 19th 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 11101