STATE WATER RESOURCES CONTROL BOARD PUBLIC HEARING 1998 BAY-DELTA WATER RIGHTS HEARING HELD AT: BONDERSON BUILDING 901 P STREET SACRAMENTO, CALIFORNIA WEDNESDAY, MARCH 10, 1999 9:00 A.M. Reported by: ESTHER F. WIATRE CSR NO. 1564 CAPITOL REPORTERS (916) 923-5447 1 APPEARANCES BOARD MEMBERS: 2 JAMES STUBCHAER, COHEARING OFFICER 3 JOHN W. BROWN, COHEARING OFFICER MARY JANE FORSTER 4 MARC DEL PIERO 5 STAFF MEMBERS: 6 WALTER PETTIT, EXECUTIVE DIRECTOR VICTORIA WHITNEY, CHIEF BAY-DELTA UNIT 7 THOMAS HOWARD, SUPERVISING ENGINEER 8 COUNSEL: 9 WILLIAM R. ATTWATER, CHIEF COUNSEL BARBARA LEIDIGH 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 PRINCETON CODORA GLENN IRRIGATION DISTRICT, et al.: 3 FROST, DRUP & ATLAS 134 West Sycamore Street 4 Willows, California 95988 BY: J. MARK ATLAS, ESQ. 5 JOINT WATER DISTRICTS: 6 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON: 7 P.O. BOX 1679 Oroville, California 95965 8 BY: WILLIAM H. BABER III, ESQ. 9 CALIFORNIA SPORTFISHING PROTECTION ALLIANCE: 10 ROBERT J. BAIOCCHI P.O. Box 357 11 Quincy, California 12 BELLA VISTA WATER DISTRICT: 13 BRUCE L. BELTON, ESQ. 2525 Park Marina Drive, Suite 102 14 Redding, California 96001 15 WESTLANDS WATER DISTRICT: 16 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 400 Capitol Mall, 27th Floor 17 Sacramento, California 95814 BY: THOMAS W. BIRMINGHAM, ESQ. 18 and AMELIA MINABERRIGARAI, ESQ. 19 THE BAY INSTITUTE OF SAN FRANCISCO: 20 GARY BOBKER 21 55 Shaver Street, Suite 330 San Rafael, California 94901 22 CITY OF ANTIOCH, et al.: 23 FREDERICK BOLD, JR., ESQ. 24 1201 California Street, Suite 1303 San Francisco, California 94109 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 LEAGUE OF WOMEN VOTERS: 3 ROBERTA BORGONOVO 2480 Union Street 4 San Francisco, California 94123 5 UNITED STATES DEPARTMENT OF THE INTERIOR: 6 OFFICE OF THE SOLICITOR 2800 Cottage Way, Room E1712 7 Sacramento, California 95825 BY: ALF W. BRANDT, ESQ. 8 CALIFORNIA URBAN WATER AGENCIES: 9 BYRON M. BUCK 10 455 Capitol Mall, Suite 705 Sacramento, California 95814 11 RANCHO MURIETA COMMUNITY SERVICES DISTRICT: 12 MCDONOUGH, HOLLAND & ALLEN 13 555 Capitol Mall, 9th Floor Sacramento, California 95814 14 BY: VIRGINIA A. CAHILL, ESQ. 15 CALIFORNIA DEPARTMENT OF FISH AND GAME: 16 OFFICE OF ATTORNEY GENERAL 1300 I Street, Suite 1101 17 Sacramento, California 95814 BY: MATTHEW CAMPBELL, ESQ. 18 NATURAL RESOURCES DEFENSE COUNCIL: 19 HAMILTON CANDEE, ESQ. 20 71 Stevenson Street San Francisco, California 94105 21 ARVIN-EDISON WATER STORAGE DISTRICT, et al.: 22 DOOLEY HERR & WILLIAMS 23 3500 West Mineral King Avenue, Suite C Visalia, California 93291 24 BY: DANIEL M. DOOLEY, ESQ. 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 SACRAMENTO MUNICIPAL UTILITY DISTRICT: 3 LESLIE A. DUNSWORTH, ESQ. 6201 S Street 4 Sacramento, California 95817 5 SOUTH SAN JOAQUIN IRRIGATION DISTRICT, et al.: 6 BRAY, GEIGER, RUDQUIST & NUSS 311 East Main Street, 4th Floor 7 Stockton, California 95202 BY: STEVEN P. EMRICK, ESQ. 8 EAST BAY MUNICIPAL UTILITY DISTRICT: 9 EBMUD OFFICE OF GENERAL COUNSEL 10 375 Eleventh Street Oakland, California 94623 11 BY: FRED S. ETHERIDGE, ESQ. 12 GOLDEN GATE AUDUBON SOCIETY: 13 ARTHUR FEINSTEIN 2530 San Pablo Avenue, Suite G 14 Berkeley, California 94702 15 CONAWAY CONSERVANCY GROUP: 16 UREMOVIC & FELGER P.O. Box 5654 17 Fresno, California 93755 BY: WARREN P. FELGER, ESQ. 18 THOMES CREEK WATER ASSOCIATION: 19 THOMES CREEK WATERSHED ASSOCIATION 20 P.O. Box 2365 Flournoy, California 96029 21 BY: LOIS FLYNNE 22 COURT APPOINTED REPS OF WESTLANDS WD AREA 1, et al.: 23 LAW OFFICES OF SMILAND & KHACHIGIAN 601 West Fifth Street, Seventh Floor 24 Los Angeles, California 90075 BY: CHRISTOPHER G. FOSTER, ESQ. 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 CITY AND COUNTY OF SAN FRANCISCO: 3 OFFICE OF THE CITY ATTORNEY 1390 Market Street, Sixth Floor 4 San Francisco, California 94102 BY: DONN W. FURMAN, ESQ. 5 CAMP FAR WEST IRRIGATION DISTRICT, et al.: 6 DANIEL F. GALLERY, ESQ. 7 926 J Street, Suite 505 Sacramento, California 95814 8 BOSTON RANCH COMPANY, et al.: 9 J.B. BOSWELL COMPANY 10 101 West Walnut Street Pasadena, California 91103 11 BY: EDWARD G. GIERMANN 12 SAN JOAQUIN RIVER GROUP AUTHORITY, et al.: 13 GRIFFTH, MASUDA & GODWIN 517 East Olive Street 14 Turlock, California 95381 BY: ARTHUR F. GODWIN, ESQ. 15 NORTHERN CALIFORNIA WATER ASSOCIATION: 16 RICHARD GOLB 17 455 Capitol Mall, Suite 335 Sacramento, California 95814 18 PLACER COUNTY WATER AGENCY, et al.: 19 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 20 400 Capitol Mall, 27th Floor Sacramento, California 95814 21 BY: JANET GOLDSMITH, ESQ. 22 ENVIRONMENTAL DEFENSE FUND: 23 DANIEL SUYEYASU, ESQ. and 24 THOMAS J. GRAFF, ESQ. 5655 College Avenue, Suite 304 25 Oakland, California 94618 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 CALAVERAS COUNTY WATER DISTRICT: 3 SIMON GRANVILLE P.O. Box 846 4 San Andreas, California 95249 5 CHOWCHILLA WATER DISTRICT, et al.: 6 GREEN, GREEN & RIGBY P.O. Box 1019 7 Madera, California 93639 BY: DENSLOW GREEN, ESQ. 8 CALIFORNIA FARM BUREAU FEDERATION: 9 DAVID J. GUY, ESQ. 10 2300 River Plaza Drive Sacramento, California 95833 11 SANTA CLARA VALLEY WATER DISTRICT: 12 MORRISON & FORESTER 13 755 Page Mill Road Palo Alto, California 94303 14 BY: KEVIN T. HAROFF, ESQ. 15 CITY OF SHASTA LAKE: 16 ALAN N. HARVEY P.O. Box 777 17 Shasta Lake, California 96019 18 COUNTY OF STANISLAUS: 19 MICHAEL G. HEATON, ESQ. 926 J Street 20 Sacramento, California 95814 21 GORRILL LAND COMPANY: 22 GORRILL LAND COMPANY P.O. Box 427 23 Durham, California 95938 BY: DON HEFFREN 24 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 SOUTH DELTA WATER AGENCY: 3 JOHN HERRICK, ESQ. 3031 West March Lane, Suite 332 East 4 Stockton, California 95267 5 COUNTY OF GLENN: 6 NORMAN Y. HERRING 525 West Sycamore Street 7 Willows, California 95988 8 REGIONAL COUNCIL OF RURAL COUNTIES: 9 MICHAEL B. JACKSON, ESQ. 1020 Twelfth Street, Suite 400 10 Sacramento, California 95814 11 DEER CREEK WATERSHED CONSERVANCY: 12 JULIE KELLY P.O. Box 307 13 Vina, California 96092 14 DELTA TRIBUTARY AGENCIES COMMITTEE: 15 MODESTO IRRIGATION DISTRICT P.O. Box 4060 16 Modesto, California 95352 BY: BILL KETSCHER 17 SAVE THE SAN FRANCISCO BAY ASSOCIATION: 18 SAVE THE BAY 19 1736 Franklin Street Oakland, California 94612 20 BY: CYNTHIA L. KOEHLER, ESQ. 21 BATTLE CREEK WATERSHED LANDOWNERS: 22 BATTLE CREEK WATERSHED CONSERVANCY P.O. Box 606 23 Manton, California 96059 24 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 BUTTE SINK WATERFOWL ASSOCIATION, et al.: 3 MARTHA H. LENNIHAN, ESQ. 455 Capitol Mall, Suite 300 4 Sacramento, California 95814 5 CITY OF YUBA CITY: 6 WILLIAM P. LEWIS 1201 Civic Center Drive 7 Yuba City 95993 8 BROWNS VALLEY IRRIGATION DISTRICT, et al.: 9 BARTKEWICZ, KRONICK & SHANAHAN 1011 22nd Street, Suite 100 10 Sacramento, California 95816 BY: ALAN B. LILLY, ESQ. 11 CONTRA COSTA WATER DISTRICT: 12 BOLD, POLISNER, MADDOW, NELSON & JUDSON 13 500 Ygnacio Valley Road, Suite 325 Walnut Creek, California 94596 14 BY: ROBERT B. MADDOW, ESQ. 15 GRASSLAND WATER DISTRICT: 16 DON MARCIOCHI 22759 South Mercey Springs Road 17 Los Banos, California 93635 18 SAN LUIS CANAL COMPANY: 19 FLANNIGAN, MASON, ROBBINS & GNASS 3351 North M Street, Suite 100 20 Merced, California 95344 BY: MICHAEL L. MASON, ESQ. 21 STONY CREEK BUSINESS AND LAND OWNERS COALITION: 22 R.W. MCCOMAS 23 4150 County Road K Orland, California 95963 24 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 TRI-DAM POWER AUTHORITY: 3 TUOLUMNE UTILITIES DISTRICT P.O. Box 3728 4 Sonora, California 95730 BY: TIM MCCULLOUGH 5 DELANO-EARLIMART IRRIGATION DISTRICT, et al.: 6 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 7 P.O. Box 1679 Oroville, California 95965 8 BY: JEFFREY A. MEITH, ESQ. 9 HUMANE FARMING ASSOCIATION: 10 BRADLEY S. MILLER 1550 California Street, Suite 6 11 San Francisco, California 94109 12 CORDUA IRRIGATION DISTRICT, et al.: 13 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 14 Oroville, California 95965 BY: PAUL R. MINASIAN, ESQ. 15 EL DORADO COUNTY WATER AGENCY: 16 DE CUIR & SOMACH 17 400 Capitol Mall, Suite 1900 Sacramento, California 95814 18 BY: DONALD B. MOONEY, ESQ. 19 GLENN COUNTY FARM BUREAU: 20 STEVE MORA 501 Walker Street 21 Orland, California 95963 22 MODESTO IRRIGATION DISTRICT: 23 JOEL MOSKOWITZ P.O. Box 4060 24 Modesto, California 95352 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 PACIFIC GAS & ELECTRIC: 3 RICHARD H. MOSS, ESQ. P.O. Box 7442 4 San Francisco, California 94120 5 CENTRAL DELTA WATER AGENCY, et al.: 6 NOMELLINI, GRILLI & MCDANIEL P.O. Box 1461 7 Stockton, California 95201 BY: DANTE JOHN NOMELLINI, ESQ. 8 and DANTE JOHN NOMELLINI, JR., ESQ. 9 TULARE LAKE BASIN WATER STORAGE UNIT: 10 MICHAEL NORDSTROM 11 1100 Whitney Avenue Corcoran, California 93212 12 AKIN RANCH, et al.: 13 DOWNEY, BRAND, SEYMOUR & ROHWER 14 555 Capitol Mall, 10th Floor Sacramento, California 95814 15 BY: KEVIN M. O'BRIEN, ESQ. 16 OAKDALE IRRIGATION DISTRICT: 17 O'LAUGHLIN & PARIS 870 Manzanita Court, Suite B 18 Chico, California 95926 BY: TIM O'LAUGHLIN, ESQ. 19 SIERRA CLUB: 20 JENNA OLSEN 21 85 Second Street, 2nd Floor San Francisco, California 94105 22 YOLO COUNTY BOARD OF SUPERVISORS: 23 LYNNEL POLLOCK 24 625 Court Street Woodland, California 95695 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 PATRICK PORGANS AND ASSOCIATES: 3 PATRICK PORGANS P.O. Box 60940 4 Sacramento, California 95860 5 BROADVIEW WATER DISTRICT, et al.: 6 DIANE RATHMANN 7 FRIENDS OF THE RIVER: 8 BETSY REIFSNIDER 128 J Street, 2nd Floor 9 Sacramento, California 95814 10 MERCED IRRIGATION DISTRICT: 11 FLANAGAN, MASON, ROBBINS & GNASS P.O. Box 2067 12 Merced, California 95344 BY: KENNETH M. ROBBINS, ESQ. 13 CENTRAL SAN JOAQUIN WATER CONSERVATION DISTRICT: 14 REID W. ROBERTS, ESQ. 15 311 East Main Street, Suite 202 Stockton, California 95202 16 METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA: 17 JAMES F. ROBERTS 18 P.O. Box 54153 Los Angeles, California 90054 19 SACRAMENTO AREA WATER FORUM: 20 CITY OF SACRAMENTO 21 980 9th Street, 10th Floor Sacramento, California 95814 22 BY: JOSEPH ROBINSON, ESQ. 23 24 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 TUOLUMNE RIVER PRESERVATION TRUST: 3 NATURAL HERITAGE INSTITUTE 114 Sansome Street, Suite 1200 4 San Francisco, California 94194 BY: RICHARD ROOS-COLLINS, ESQ. 5 CALIFORNIA DEPARTMENT OF WATER RESOURCES: 6 DAVID SANDINO, ESQ. 7 CATHY CROTHERS, ESQ. P.O. Box 942836 8 Sacramento, California 94236 9 FRIANT WATER USERS AUTHORITY: 10 GARY W. SAWYERS, ESQ. 575 East Alluvial, Suite 101 11 Fresno, California 93720 12 KERN COUNTY WATER AGENCY: 13 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 400 Capitol Mall, 27th Floor 14 Sacramento, California 95814 BY: CLIFFORD W. SCHULZ, ESQ. 15 SAN JOAQUIN RIVER EXCHANGE CONTRACTORS: 16 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON: 17 P.O. Box 1679 Oroville, California 95965 18 BY: MICHAEL V. SEXTON, ESQ. 19 SAN JOAQUIN COUNTY: 20 NEUMILLER & BEARDSLEE P.O. Box 20 21 Stockton, California 95203 BY: THOMAS J. SHEPHARD, SR., ESQ. 22 CITY OF STOCKTON: 23 DE CUIR & SOMACH 24 400 Capitol Mall, Suite 1900 Sacramento, California 95814 25 BY: PAUL S. SIMMONS, ESQ. CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 ORLAND UNIT WATER USERS' ASSOCIATION: 3 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 4 Oroville, California 95965 BY: M. ANTHONY SOARES, ESQ. 5 GLENN-COLUSA IRRIGATION DISTRICT: 6 DE CUIR & SOMACH 7 400 Capitol Mall, Suite 1900 Sacramento, California 95814 8 BY: STUART L. SOMACH, ESQ. 9 NORTH SAN JOAQUIN WATER CONSERVATION DISTRICT: 10 JAMES F. SORENSEN CONSULTING CIVIL ENGINEER, INC. 209 South Locust Street 11 Visalia, California 93279 BY: JAMES F. SORENSEN 12 PARADISE IRRIGATION DISTRICT: 13 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 14 P.O. Box 1679 Oroville, California 95695 15 BY: WILLIAM H. SPRUANCE, ESQ. 16 COUNTY OF COLUSA: 17 DONALD F. STANTON, ESQ. 1213 Market Street 18 Colusa, California 95932 19 COUNTY OF TRINITY: 20 COUNTY OF TRINITY - NATURAL RESOURCES P.O. Box 156 21 Hayfork, California 96041 BY: TOM STOKELY 22 CITY OF REDDING: 23 JEFFERY J. SWANSON, ESQ. 24 2515 Park Marina Drive, Suite 102 Redding, California 96001 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 TULARE IRRIGATION DISTRICT: 3 TEHAMA COUNTY RESOURCE CONSERVATION DISTRICT 2 Sutter Street, Suite D 4 Red Bluff, California 96080 BY: ERNEST E. WHITE 5 STATE WATER CONTRACTORS: 6 BEST BEST & KREIGER 7 P.O. Box 1028 Riverside, California 92502 8 BY: ERIC GARNER, ESQ. 9 COUNTY OF TEHAMA, et al.: 10 COUNTY OF TEHAMA BOARD OF SUPERVISORS: P.O. Box 250 11 Red Bluff, California 96080 BY: CHARLES H. WILLARD 12 MOUNTAIN COUNTIES WATER RESOURCES ASSOCIATION: 13 CHRISTOPHER D. WILLIAMS 14 P.O. Box 667 San Andreas, California 95249 15 JACKSON VALLEY IRRIGATION DISTRICT: 16 HENRY WILLY 17 6755 Lake Amador Drive Ione, California 95640 18 SOLANO COUNTY WATER AGENCY, et al.: 19 HERUM, CRABTREE, DYER, ZOLEZZI & TERPSTRA 20 2291 West March Lane, S.B.100 Stockton, California 95207 21 BY: JEANNE M. ZOLEZZI, ESQ. 22 ---oOo--- 23 24 25 CAPITOL REPORTERS (916) 923-5447 1 INDEX 2 PAGE 3 RESUMPTION OF HEARING: 11118 4 AFTERNOON SESSION: 11219 5 COMBINED PANEL: 6 DEPARTMENT OF INTERIOR DAVID ROBINSON 7 JOHN RENNING MICHAEL THABAULT 8 DEPARTMENT OF WATER RESOURCES LARRY GAGE 9 STEPHEN FORD DEPARTMENT OF FISH AND GAME 10 JAMES WHITE CONTINUED CROSS-EXAMINATION: 11 BY MR. HERRICK 11118 CROSS-EXAMINATION: 12 BY MR. MADDOW 11209 BY MR. JACKSON 11222 13 BY MR. NOMELLINI, JR. 11300 14 ---oOo--- 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 1 SACRAMENTO, CALIFORNIA 2 MARCH 10, 1999 3 ---oOo--- 4 C.O. STUBCHAER: Morning. We will reconvene the 5 Bay-Delta Water Rights hearing. 6 Before the cross-examination of the panel continues, I 7 understand there has been a request to switch the order of 8 cross-examination, Mr. Maddow with Mr. Jackson; is that 9 correct? 10 MR. MADDOW: Yes, Mr. Chairman. I requested that 11 yesterday afternoon. I have just about ten questions and 12 unfortunately I cannot be present this afternoon, and Mr. 13 Jackson was gracious enough to agree. I spoke to the 14 attorneys for the panel, and they had no objections. 15 C.O. STUBCHAER: Very well, we will grant that 16 request. 17 MR. MADDOW: Thank you very much. 18 C.O. STUBCHAER: Mr. Herrick, morning. 19 ---oOo--- 20 CONTINUED CROSS-EXAMINATION OF DEPARTMENT OF THE INTERIOR, 21 DEPARTMENT OF WATER RESOURCES AND 22 DEPARTMENT OF FISH AND GAME 23 BY SOUTH DELTA WATER AGENCY 24 BY MR. HERRICK 25 MR. HERRICK: Good morning. Thank you, Mr. Chairman, CAPITOL REPORTERS (916) 923-5447 11118 1 Board Members. John Herrick for the South Delta Water 2 Agency. 3 Mr. Robinson, let me just continue on with some 4 questions. Yesterday when we ended I was trying to get at 5 some of the assumptions that you might be familiar with that 6 went into the work that resulted in the analysis of the 7 effects of the various joint point alternatives. 8 Do you have Chapter XIII from the DEIR handy? 9 MR. ROBINSON: Yes. 10 MR. HERRICK: Could you turn to Page XIII-34 and read 11 along with me? I just want to go over one point here. 12 MR. ROBINSON: Okay. 13 MR. HERRICK: The first full paragraph at the top 14 says: 15 Regardless of the cause in salinity 16 variations among the alternatives, in all of 17 the alternatives the SWP and CVP will always 18 operate to insure that the objectives 19 (excluding perhaps the Southern Delta 20 objectives) are achieved. Therefore, there 21 should be no significant effects associated 22 with the implementation of the joint point of 23 alternatives in comparison to the base case 24 for these actions. (Reading.) 25 Was that one of the assumptions that you discussed or CAPITOL REPORTERS (916) 923-5447 11119 1 proposed when you were working with State Board staff to 2 develop this analysis? 3 MR. ROBINSON: Not me personally, no. 4 MR. HERRICK: Do you understand that the Southern Delta 5 objectives include the Vernalis standard or perhaps just the 6 Interior Delta objectives? 7 MR. ROBINSON: I couldn't specifically say. 8 MR. HERRICK: Would it make a difference in the 9 analysis of the effects of joint point if it were assumed 10 that the Vernalis standard were always being met? 11 MR. ROBINSON: With regard to what? 12 MR. HERRICK: The effects of the joint point 13 alternatives. 14 MR. ROBINSON: Could you say the question again? 15 MR. HERRICK: Sure. Let me find the -- the second to 16 last paragraph of your testimony talks about the majority of 17 the model effects generally showed little difference between 18 the base alternatives and the joint point alternatives. The 19 defined threshold of significance for model results were 20 exceeded in three of the analyses: salinity at various Delta 21 locations, reservoir habitat and riparian wetland analysis, 22 habitat analysis. 23 My question to you is: Did your analysis assume that 24 the Vernalis standard was going to be met? 25 MR. TURNER: I would object on the basis that Mr. CAPITOL REPORTERS (916) 923-5447 11120 1 Robinson testified he was doing analysis as to the relative 2 impacts of the various alternatives, not what particular 3 alternatives were being taken into account, whether the 4 impact was significant or whether just in material. He was 5 just comparing relative impacts. I thought his original 6 testimony made it very clear that he was not looking at the 7 specific underlying facts and assumptions. 8 It seems to me that that is outside the scope of the 9 analysis that he did. 10 C.O. STUBCHAER: On regular cross-examination we allow 11 a pretty broad latitude. I would say if you can answer the 12 question, you should do so. If you can't, you don't 24 one of them? If you don't, maybe you don't. 25 MR. ROBINSON: Well, I don't recall. Perhaps a better CAPITOL REPORTERS (916) 923-5447 11121 1 approach may be go to one of the graphs where you have a 2 specific example that you could direct me to. 3 MR. HERRICK: Following on Mr. Turner's objection, if 4 you're analyzing the relative effects of the alternatives, 5 would it be important to know whether or not the underlying 6 assumption includes meeting of the Delta planned standards? 7 MR. ROBINSON: Yeah, that's important. 8 MR. HERRICK: Earlier in the chapter, Chapter XIII, is 9 it correct to say that some of the alternatives assumed that 10 the Delta Barrier Program is in existence and others assume 11 that the Temporary Barrier Program is in existence? 12 MR. ROBINSON: I think the way that the team treated it 13 is we made no assumption about what was in place, just some 14 fix was in place. In terms of what the model assumed, I 15 direct your questions to somebody who was more familiar with 16 the modeling. 17 MR. HERRICK: Your work assumed that some fix was in 18 place that addressed Delta water level requirements? 19 MR. ROBINSON: Correct. 20 MR. HERRICK: Let me go back to the attachments to your 21 testimony, and again I believe they are labeled, the ones we 22 are dealing with, 11-B through 11-L. 23 On these various graphs, you show average minimum water 24 levels at various positions. I am just reading a couple of 25 them. Middle River downstream of a barrier, Middle River CAPITOL REPORTERS (916) 923-5447 11122 1 upstream of the barrier, Old River downstream Middle River. 2 Is it true that your averages -- let me back up, lay some 3 foundation. 4 Your analysis also includes Alternative 1, which is the 5 no action plan, I'll say the D-1485 standards; is that 6 correct? 7 MR. ROBINSON: Correct. 8 MR. HERRICK: Does that assume some level of barrier 9 operations? 10 MR. ROBINSON: I am not sure. 11 MR. HERRICK: I am trying to find out whether or not 12 your charts show or indicate times when barriers are 13 installed and times when barriers aren't installed. 14 Was that part of the information that went into the 15 analysis that you performed? 16 MR. ROBINSON: Again, I don't recall. Perhaps someone 17 more familiar with the modeling can answer the question. 18 That would have been an assumption within the hydrologic 19 modeling. 20 MR. HERRICK: Based on your earlier answer, then, your 21 assumption that some fix has been done, would that mean that 22 at any time during the year that water levels were at risk 23 there would be some sort of barrier operating? 24 MR. ROBINSON: I don't know how to answer your 25 question, in terms of what risk and how you define that. CAPITOL REPORTERS (916) 923-5447 11123 1 MR. HERRICK: Absent that definition of risk, can we 2 tell from your charts whether or not any of the alternatives 3 actually lower water levels to a point that it interferes 4 with some local diverter? 5 MR. ROBINSON: I don't think the charts were intended 6 to do that. 7 MR. HERRICK: Just as an example on one, on 11-C, if 8 you can turn to that please, under the June 1 through 30, 9 July 1 through 31 and August 1 through 31, actually, other 10 months too, in at least those three months you show, shall 11 we say, significant water levels upstream of the Middle 12 River barrier under Alternatives 7 and 8; is that correct? 13 MR. ROBINSON: As much discussion as we had yesterday 14 about the word "significant," I guess if I can ask you to 15 define that for me. 16 MR. HERRICK: In June 1 through 30, it doubles; is that 17 approximately correct? 18 MR. ROBINSON: Correct. For Alternatives 7 and 8 the 19 models predict the average minimum water level. 20 MR. HERRICK: Is your analysis assuming that under 7 21 and 8 there is more pumping that would have existed under 22 Alternative 4? Is that a fair assumption? 23 MR. ROBINSON: I would direct your question to the 24 hydrologist who did the hydrologic analysis, Mr. Renning. 25 MR. HERRICK: Can you explain to me why there is an CAPITOL REPORTERS (916) 923-5447 11124 1 extra three feet of water behind the barrier under those 2 alternatives? 3 MR. RENNING: Alternatives 7 and 8 are the alternatives 4 that assume higher levels of pumping or that permit higher 5 levels of pumping at the state plant. It assumes that the 6 facilities are in place to enable the so-called Corps permit 7 to be lifted, and the higher levels of pumping to be 8 permitted. Those facilities are the facilities within the 9 South Delta. And that exhibit shows that under Alternatives 10 7 and 8 with the barriers in place that water levels are 11 significantly higher in the South Delta than they would be 12 in the absence of the barriers. 13 MR. HERRICK: Maybe you are a better person to ask, Mr. 14 Renning. If you are pumping more in these months, how do 15 you get more water behind the barriers? 16 MR. RENNING: Because the barriers are in operation. 17 It is a function of the barrier operation, not the pumping. 18 MR. HERRICK: The barriers trap incoming tide, right? 19 MR. RENNING: Yes. 20 MR. HERRICK: If you have additional pumping, there 21 would be less incoming tide to go behind the barriers; is 22 that correct? 23 MR. RENNING: I can't really answer specific questions 24 about what happens at a particular barrier, other than that 25 the barriers program in total address and resolve the water CAPITOL REPORTERS (916) 923-5447 11125 1 level situation in the South Delta. There may be specific 2 locations associated with details of the barriers program, 3 but there may be other matters that have to be addressed and 4 taken into account once the barriers are in operation. 5 MR. HERRICK: I understand that. And that is a broad 6 topic, and I don't mean to test you on something that you 7 may not be the proper person. But I am trying to find if 8 you have an understanding, and this is for both Mr. Robinson 9 and Mr. Renning. 10 If we are assuming, and maybe that is incorrect, but if 11 we are assuming that under 7 and 8 there is increased export 12 pumping at some time -- I assume it is during those months 13 -- should we also assume there is more water being released 14 upstream on the San Joaquin River system to allow for the 15 increased joint point or is that a bad assumption? 16 MR. RENNING: No. The operations on the San Joaquin 17 River are the same in the -- they are the same in all the 18 alternatives with the exceptions of Alternatives 6 and 9, 19 which assume the -- Alternative 6 is the LOI flows which 20 were the predecessor to the VAMP flows or the San Joaquin 21 River Agreement flows which are in Alternative 9. 22 MR. HERRICK: So, my question is: If you are pumping 23 more, which I think we should assume takes away from the 24 amount of water that is going back upstream on the incoming 25 tide, for pumping more how do you get a higher level behind CAPITOL REPORTERS (916) 923-5447 11126 1 the barrier that traps that incoming flow? 2 MR. RENNING: I can't answer that question. I don't 3 have a good enough knowledge of the modeling to address it. 4 MR. HERRICK: Is it your understanding that increasing 5 export pumps increases the efficiency or the work or 6 increases the ability of the barriers to trap water? 7 MR. RENNING: I simply don't know. 8 MR. HERRICK: These charts are being used as an 9 environmental analysis to show that there are benefits to 10 South Delta diverters to maximum amount of pumping under 11 joint point; is that correct? 12 MR. RENNING: No. We are not trying to show that at 13 all. We are trying to show that the effects of the joint 14 point of diversion are minimal and are essentially the same 15 under all of the alternatives, with the exception of the 16 ones that have the barriers in place. These show that with 17 the barriers in place that there are -- well, I guess, if 18 you will, there are benefits to South Delta associated with 19 the barriers. 20 MR. HERRICK: I understand that. Again, I am not 21 trying to test you on something that is outside your scope 22 of knowledge. 23 The barriers program -- the barrier program is designed 24 to address certain water levels and other issues in the 25 South Delta, correct? CAPITOL REPORTERS (916) 923-5447 11127 1 MR. RENNING: Yes. 2 MR. HERRICK: Those barriers trap incoming tidal flows 3 in order to maintain a certain level so people upstream of 4 the barrier have a sufficient depth of water from which to 5 draw their irrigation? 6 MR. RENNING: Among other things, that is what the 7 barriers are for. 8 MR. HERRICK: The presentation today and yesterday and 9 the DEIR for staff seeks to allow a joint point operation, 10 which, if this panel's request is allowed, allows for an 11 increase in export pumping over a period of time once other 12 things happen, have CalFed Ops Group approve the plan; is 13 that correct? 14 MR. RENNING: Yes. 15 MR. HERRICK: The maximum amount of that authorization 16 is Alternative 8; is it not? 17 MR. RENNING: Yes. 18 MR. HERRICK: And Alternative 8 includes increased 19 export pumping above what would be described as a no-net 20 loss amount, what we are doing now. Is that a fair 21 statement? 22 MR. RENNING: Yes. 23 MR. HERRICK: This evidence, then, that is being 24 presented by you shows that if you pump the most, and that 25 is under 11-C, 11-E and 11-G, it shows that in summer, the CAPITOL REPORTERS (916) 923-5447 11128 1 times when the South Delta has generally its worst water 2 problems, it shows that when you pump more water the 3 barriers trap an extra three or four feet of water. I am 4 trying to understand why this panel believes that is so. 5 Can you help me on that? 6 MR. RENNING: Well, the operation of the barriers is 7 not necessarily a function of the pumping. You could have 8 the barriers in operation with no pumping whatsoever, and 9 you would have higher water levels within the South Delta. 10 MR. HERRICK: The barrier causes the higher water 11 level, correct? 12 MR. RENNING: Yes. 13 MR. HERRICK: That is a function of the incoming tide 14 and to a lesser degree the amount of water flowing down the 15 San Joaquin River; is that correct? 16 MR. RENNING: Yes. 17 MR. HERRICK: If we don't have any change in the amount 18 of water flowing down the San Joaquin River, but we increase 19 export pumping to decrease the amount of incoming tide, how 20 do we end up with more water behind the barriers? 21 MR. RENNING: Because the barriers are working. 22 MR. HERRICK: Let's remove the additional export 23 pumping. 24 MR. RENNING: I'm sorry. The principal affect of the 25 pumping is on the low tides, not on the high tides. And it CAPITOL REPORTERS (916) 923-5447 11129 1 is the high tides that are trapped by the barriers. 2 MR. HERRICK: What is this additional export pumping 3 doing to increase the high tides so the barriers trap more? 4 MR. RENNING: It is not increasing the high tides. 5 MR. HERRICK: So how are the barriers trapping more 6 water? 7 MR. RENNING: Because they are in operation. 8 MR. HERRICK: Let's remove the joint point. Okay? 9 MR. RENNING: Okay. 10 MR. HERRICK: That means these barriers would all be 11 the same if there is no -- 12 MR. RENNING: No, no, no. If you have the barriers in 13 place, you're going to have higher water levels within South 14 Delta. 15 MR. HERRICK: The difference between Alternatives 1 16 through 6 and 7 and 8 is increased pumping during the low 17 tides. Is that what you are saying? 18 MR. RENNING: No -- well, Alternatives 7 and 8 have a 19 barriers program operating, in place and operating. The 20 other programs do not. The other alternatives do not. 21 MR. HERRICK: So, why are we comparing the relative 22 effects of joint point alternatives with and without 23 barriers? 24 MR. RENNING: Because the assumption is that if you are 25 going to have the higher levels of pumping that are CAPITOL REPORTERS (916) 923-5447 11130 1 associated with Alternatives 7 and 8, that you have to have 2 a program in place to address the water levels within South 3 Delta. Otherwise, those higher levels of pumping would not 4 be permitted. 5 MR. HERRICK: We are not comparing, then, the relative 6 effects of joint point. We are comparing the relative 7 effects of joint point pumping with joint point pumping with 8 barriers; is that correct? 9 MR. RENNING: Yes. 10 MR. HERRICK: What does that tell us? Does that tell 11 us if you cure the adverse effects of the export pumping, 12 then that is no harm for joint point? 13 MR. RENNING: I am sorry, say that again. 14 MR. HERRICK: Does that tell us if you simply cure the 15 water level problems, then joint point doesn't effect 16 anything? Is that what we are saying? 17 MR. RENNING: Yes, that is more or less what we are 18 saying. 19 MR. HERRICK: Isn't that circular? I mean, if you 20 assume there is no harm, then you could assume any level of 21 exports. Couldn't you? 22 MR. RENNING: Well, I think you are taking that to a 23 rather absurd end. 24 MR. HERRICK: I will end this here; I am not trying to 25 beat this too much. CAPITOL REPORTERS (916) 923-5447 11131 1 What does it tell us if we say there is no harm if we 2 cure the harm? 3 MR. RENNING: What we are saying is that, if the state 4 plant is to be permitted to operate to its maximum capacity, 5 that is the so-called Corps permit would be lifted, there 6 would have to be facilities in place to permit that to 7 happen, because those higher levels of pumping cause 8 problems with water levels within the South Delta. 9 When you do have those facilities in place that address 10 those water level problems, you have these improved water 11 levels within the South Delta. It's a product of the 12 barriers. 13 MR. HERRICK: So are you asking this Board, then, to 14 approve joint point only if the South Delta barriers are 15 operated as needed? 16 MR. RENNING: We have said in our proposal that if 17 these higher levels of use of the joint point of diversion 18 are to be permitted, it's going to be dependent upon these 19 other facilities having been constructed and that all of the 20 environmental documentation and approvals of that, which is 21 another process, that is going to have to take place before 22 these higher levels of use of joint point can take place. 23 MR. HERRICK: Do you want the Board to make that a 24 condition of joint point authorization? 25 MR. RENNING: I am not sure if -- I am not sure if that CAPITOL REPORTERS (916) 923-5447 11132 1 is within the responsibility of the Board. 2 MR. HERRICK: Alternatives, let me get this right, 3 3 through 6, would those include additional pumping beyond 4 what would occur without joint point during these summer 5 months or potentially include additional pumping during the 6 summer months we are looking at on 11-C? 7 MR. RENNING: No. You have to look at some of the 8 other exhibits to see when pumping is taking place under 9 each of these alternatives. 10 MR. HERRICK: Maybe I need to get to that later. But 11 the joint point proposals under 3 through 6 would seek to do 12 additional pumping at some months to make up for lost 13 pumping other months; is that correct? 14 MR. RENNING: Not entirely. Alternative 3 is for the 15 existing contracts only. Alternative 4 involves some degree 16 of replacing pumping for fishery actions. 17 MR. HERRICK: Let's just take Alternative 4. 18 Alternative 4 would allow, I will call it, makeup 19 pumping under the joint point authorization in order to 20 recover exports that could have been done during, say, the 21 30-day pulse; is that correct? 22 MR. RENNING: Yes. 23 MR. HERRICK: Would that entail or could that entail 24 pumping over different months for that extra makeup water or 25 is there some set month? CAPITOL REPORTERS (916) 923-5447 11133 1 MR. RENNING: No. It would be in other months, but 2 there are no set months for that replacement. 3 MR. HERRICK: It is possible that those months of extra 4 exports occur in either June, July or August; is that 5 correct? 6 MR. RENNING: It's possible, yes. 7 MR. HERRICK: Does 11-C tell us, since Alternative 4 8 doesn't have the barriers as an assumption, I believe you 9 said -- 10 MR. RENNING: Yes. 11 MR. HERRICK: -- does that tell us how much that 12 additional pumping might lower the water levels above and 13 beyond the amount lowered by regular pumping? 14 MR. RENNING: Exhibit 11-C shows that there would be no 15 changes on an average. 16 MR. HERRICK: Now, explain that to us. Is that because 17 the water is now being pumped by the state? Or is it 18 potentially increased federal pumping, or some other? 19 MR. RENNING: What it is showing is that -- this 20 modeling, that the effects of the increased pumping, the 21 increased use of joint point of diversion, does not affect 22 the low water levels, the average minimum water level in the 23 South Delta. 24 MR. HERRICK: Do we know whether or not it affects, not 25 the average, but the low water levels? CAPITOL REPORTERS (916) 923-5447 11134 1 MR. RENNING: This is a question that is related to the 2 type of modeling that is being used here. This modeling 3 does not capture all of the differences or the variations in 4 the tides that occur over the year, and that there are 5 periods where there are low tides, and that under those 6 circumstances there would be low water levels. 7 MR. HERRICK: Again, if we are trying to -- I don't 8 mean to get into the legal end too much, but if we are 9 trying to do a comprehensive environmental review, wouldn't 10 you agree that those times of lowest water levels that 11 should be of concern to this Board as to whether or not 12 joint point will adversely affect those levels? 13 MR. RENNING: Yes, it would be of concern. And that is 14 one of the reasons that we have gone forward with a 15 different program to address the low water level situations 16 as we have -- as we did last month, for instance. 17 MR. HERRICK: Is that sort of -- is there any analysis 18 of those low water levels, to your knowledge, in any of the 19 documents that you have presented or in the DEIR? 20 MR. RENNING: No. 21 MR. HERRICK: Assuming that some of the makeup pumping 22 under Alternative 4 is done in the summer months that we 23 talked about, June through August, it is your statement that 24 charts here show that there is no affect on the average 25 water levels; is that correct? CAPITOL REPORTERS (916) 923-5447 11135 1 MR. RENNING: There are some slight differences among 2 the alternatives. 3 MR. HERRICK: I didn't mean to mischaracterize that. 4 What I meant to say is, Alternative 4 doesn't show that it 5 creates any significant, worst condition in water levels, 6 stuff like that. Is that fair? 7 MR. RENNING: It shows that it is very similar to 8 Alternative 3 and Alternative 5. 9 MR. HERRICK: Do you know what export levels at the 10 federal pumps is assumed for this analysis? And by that I 11 mean, what level of pumping do the federal pumps -- at what 12 level of pumping do the federal pumps operate during those 13 summer months? Are they at their maximum 4,600 without 14 joint point or are they somewhere below that? 15 MR. RENNING: The hydrologic modeling that was done for 16 this assumes that there is a particular level of demand that 17 is met by the two projects, and that in particular years, in 18 adverse hydrologic years, they wouldn't be able to have the 19 water supply and they would not be pumping at capacity. But 20 when there is an adequate water supply, the federal pumps 21 will be pumping to capacity, which is the reason we need to 22 use joint point of diversion. 23 MR. HERRICK: The question, I guess maybe you have 24 answered that, it is a question of water supply then whether 25 or not the federal pumps are operating at 4,600 cfs, CAPITOL REPORTERS (916) 923-5447 11136 1 generally? 2 MR. RENNING: It is a question of supply and of the 3 restrictions that are imposed upon the operations of the 4 project because of the fact that, you know, we are 5 capacity-limited. We are generally at that capacity most of 6 the time. 7 MR. HERRICK: One of my -- the next question, then, is: 8 There isn't a scenario where without the joint point the 9 federal pumps are below maximum in these summer months or 10 with the joint point they are at maximum? 11 MR. RENNING: I don't quite follow your question. 12 There are certainly periods in this, the studies here, 13 particularly the two critical periods where the federal 14 pumps are not at capacity during the summer because the 15 water supply is limited. 16 MR. HERRICK: I am trying to see if there is a scenario 17 occurring with and without joint point. Without joint point 18 the pumps, the federal pumps, would not be at capacity, and 19 with joint point they would be. 20 MR. RENNING: No. I don't think that that situation 21 exists. 22 MR. HERRICK: If that did occur, then that would mean 23 that there would be a decrease in the low water levels; is 24 that correct? 25 MR. RENNING: Well, I don't agree with your premise CAPITOL REPORTERS (916) 923-5447 11137 1 there. I don't think there is any situation in which 2 without the joint point we would not be at capacity. 3 MR. HERRICK: Does this analysis take into account the 4 affects on the state projects filling of Clifton Court 5 Forebay on the incoming tide? 6 MR. RENNING: Yes. These -- this modeling of water 7 levels assumes that an operation of Clifton Court by the 8 state project. 9 MR. HERRICK: Does that assume that they always take in 10 the same amount of water each tide cycle? 11 MR. RENNING: I don't know the details of how that was 12 modeled. 13 MR. HERRICK: If they took in more water on a tidal 14 cycle in order to have more water for the joint point 15 pumping, would that affect the water levels in the South 16 Delta? 17 MR. RENNING: Presumably, it could. But the modeling 18 shows that there aren't any differences, essentially no 19 differences in the water level. 20 MR. HERRICK: It is -- maybe anybody else can jump in 21 on this. It is my understanding that the CalFed Program, 22 the Ops Group, which you are recommending develop the plan 23 of operation, the CalFed Ops Group is contemplating a 24 continuous intake into Clifton Court Forebay; is that 25 correct? CAPITOL REPORTERS (916) 923-5447 11138 1 MR. RENNING: The programs of CalFed are really beyond 2 the scope of what we have addressed in our testimony, and I 3 certainly can't speak to that. Perhaps Mike Thabault can. 4 C.O. STUBCHAER: Excuse me. The speakers need to get 5 the microphone closer. The people in the back of the room 6 are having a hard time hearing. 7 MR. THABAULT: I will try and address that for you, Mr. 8 Herrick. The joint proposal does not recommend that the Ops 9 Group develop a plan. The joint proposal recommends that 10 the CalFed Bay-Delta Program as a whole, taking in all of 11 its context, including the South Delta Water Agency needs, 12 develops a plan. 13 One aspect that CalFed is reviewing in terms of 14 operations is a timely cycle variable speed pumps which 15 might be able to export the tidal levels at varying degrees 16 to ameliorate the South Delta Water Agency's water levels. 17 I am not entirely clear on the modeling specifics, but that 18 is a concept that we are trying to promote. 19 MR. HERRICK: I appreciate that. Thank you. 20 Isn't one of the proposals being considered by the 21 CalFed group, that is pretty broad, isn't one of the 22 proposals that fish screens be attached or be installed at 23 the intake of Clifton Court Forebay which would necessitate 24 a more even, through multiple tide cycle, intake? 25 MR. THABAULT: No. CalFed is proposing fish screens at CAPITOL REPORTERS (916) 923-5447 11139 1 Clifton Court, and what we are trying to do is, because fish 2 screen criteria are usually developed for the worst case 3 scenario in order to minimize the amount of screen surface 4 area associated, thereby the cost of the screens, we 5 promoted the tidally -- the tidal exports at variable speeds 6 so we can achieve more or less of a constant screen criteria 7 through the tidal cycle. So we are not proposing a 8 continuous pumping through the screens because then you 9 would have variable approach velocities, and you may exceed 10 or approach velocities at the screens, and do it that way. 11 There is a dual purpose in having variable export 12 levels, A, to meet your screen criteria and, B, you can help 13 address the South Delta water levels. 14 MR. HERRICK: In order to meet the screen criteria is 15 it not being considered to adjust the method by which water 16 is taken into Clifton Court Forebay? 17 MR. THABAULT: That is what I testified to. By using 18 varying speed pumps at the head of Clifton Court and 19 eliminating the gate operations, you basically fundamentally 20 change how you put water into Forebay. 21 MR. HERRICK: That might result in taking water at 22 times other than the incoming tide; is that correct? 23 MR. THABAULT: I am sorry, Mr. Herrick, you have to 24 repeat the question. 25 MR. HERRICK: That might entail taking water in Clifton CAPITOL REPORTERS (916) 923-5447 11140 1 Court at other times than incoming tide that occurs now? 2 MR. THABAULT: That is correct. 3 MR. HERRICK: If you take water at other times, it is 4 possible, then, to exacerbate the low water levels in the 5 South Delta? 6 MR. THABAULT: That is precisely a piece of information 7 that we are trying to have CalFed address in terms of what 8 the nature of that effect would be. 9 MR. HERRICK: But you want the Board to authorize the 10 joint point before that's been addressed; is that correct? 11 MR. THABAULT: It is our position that CalFed as a 12 program has an obligation to address all of those concerns. 13 It is their mandate, and, therefore, that is the process, 14 because it is a larger picture program, is the forum to 15 address those concerns, yes. 16 MR. HERRICK: Let me turn to Mr. Renning. Mr. 17 Robinson, let me ask you a couple more questions. 18 Do you know what the assumptions were for which -- the 19 assumptions for the analysis done which resulted in the 20 attachments to your testimony, what the assumptions were 21 with regard to the Head of Old River Barrier? 22 MR. ROBINSON: I don't recall, no. 23 MR. HERRICK: Did it come up in your dealings with the 24 State Board staff the potential for Head of Old River 25 Barrier adversely affecting the water levels immediately CAPITOL REPORTERS (916) 923-5447 11141 1 downstream of that barrier? 2 MR. ROBINSON: No. 3 MR. HERRICK: So your analysis didn't include any 4 potential use of culverts in that barrier? 5 MR. ROBINSON: I can't say for sure. 6 MR. HERRICK: In order to analyze the effects of joint 7 point pumping, do you think it would be important to know 8 whether or not the Head of Middle River might be affecting 9 the water levels downstream of it? 10 MR. ROBINSON: I would assume that whatever assumptions 11 were made in the hydrologic modeling would have been 12 consistent through all the alternatives. Therefore, 13 regardless of whatever assumption was made, that the 14 relative difference between the alternatives would be the 15 same one way or the other. 16 MR. HERRICK: Mr. Robinson, you are a biologist for the 17 Bureau? 18 MR. ROBINSON: Correct. 19 MR. HERRICK: In your analysis of the sufficiency of 20 the environmental review, did you take into -- did you take 21 into account any potential harm to steelhead trout that may 22 occur as a result -- 23 MR. ROBINSON: There were no specific analyses done 24 with respect to the steelhead. 25 MR. HERRICK: Is there a reason why that did not CAPITOL REPORTERS (916) 923-5447 11142 1 occur? 2 MR. ROBINSON: Within the context of looking at the 3 relative position of these alternatives there are no models 4 available where we would be able to develop indices or any 5 kind of index as to what the effects might be. 6 MR. HERRICK: Mr. Renning, your testimony talks about 7 -- it says: 8 The Tracy pumping plant has generally 9 operated at full capacity or at maximum 10 capacity imposed upon it by the terms of the 11 Endangered Species Act. (Reading.) 12 And it goes on from there. What are the limits on 13 export pumping imposed by the Endangered Species Act? 14 MR. RENNING: There are -- I would have to go back and 15 look at all the terms and conditions. But there are some -- 16 there are export limitations that are associated with the 17 pulse flow period. Then, of course, there are limitations 18 that are -- that occur if an incidental take is happening. 19 MR. HERRICK: At any time throughout the year, if there 20 is an incidental take of certain species, export pumping may 21 be affected? 22 MR. RENNING: Yes. 23 MR. HERRICK: What species would those be? 24 MR. RENNING: Right now it would be Delta smelt, 25 winter-run salmon, and splittail has been listed. And I CAPITOL REPORTERS (916) 923-5447 11143 1 believe that the agencies are working on some incidental 2 take limits for that. 3 MR. HERRICK: The next part of that same sentence -- 4 MR. RENNING: And then steelhead and spring-run salmon 5 are also being looked at as well. 6 MR. HERRICK: The steelhead and spring-run salmon might 7 impose further limitations at some point? 8 MR. RENNING: Yes. 9 MR. HERRICK: The next part of your sentence says that 10 there are also limits on export pumping imposed by the 1995 11 Bay-Delta Plan. What export limitations are you referring 12 to when you say that? 13 MR. RENNING: The pulse flow period. The export 14 limitations associated with that are also within the plan. 15 MR. HERRICK: Let me -- if you don't mind, let me 16 interrupt you. Doesn't the 1995 plan allow the Bureau to 17 pump 100 percent of the San Joaquin River flow? 18 MR. RENNING: That could be export limitation, yes. 19 MR. HERRICK: Was there some point in time when you 20 could pump more than that? 21 MR. RENNING: I believe under 1485 we could. 22 MR. HERRICK: You could pump more than a hundred 23 percent flow of the San Joaquin River? 24 MR. RENNING: Yes. 25 MR. HERRICK: Since the biological opinion limits the CAPITOL REPORTERS (916) 923-5447 11144 1 exports during that, would you agree that the biological 2 opinion limitations for Delta smelt limits the exports for 3 the Bureau during that pulse flow period? 4 MR. RENNING: Yes. I believe it does. There are other 5 limitations that exist. For instance the E/I ratio at other 6 times. 7 MR. HERRICK: Could you explain to me why the Bureau 8 wants the amount of water it has lost due to fishery action 9 against 100 percent of the San Joaquin River flow, pulse 10 flow, as opposed to what the biological opinion requires? 11 MR. RENNING: Well, the reason that we want to have the 12 use of the joint point of diversion is not specifically to 13 replace capacity that is lost because of a particular 14 action. But it is to replace a capacity that has been lost 15 by a whole body of changes that have come about in the 16 restrictions on project operations over the last several 17 years. 18 MR. HERRICK: Does that include the CVPIA requirement 19 of dedicating 800,000 acre-feet of water? 20 MR. RENNING: To the extent that there are actions that 21 at one time or another of the year impose some sort of 22 restrictions on our ability to export, we would like to be 23 able to use the joint point of diversion at other times of 24 the year if capacity is available, if the water supply is 25 available, to make up for those losses that have occurred. CAPITOL REPORTERS (916) 923-5447 11145 1 MR. HERRICK: Let me explore that. Pursuant to CVPIA, 2 the Bureau is making releases of water from New Melones; is 3 that correct? 4 MR. RENNING: Pardon me? 5 MR. HERRICK: Pursuant to CVPIA the Bureau has 6 increased its releases of water from New Melones for the 7 benefit of fisheries; is that correct? 8 MR. RENNING: There have been increased fishery flows 9 imposed as a result of CVPIA on the operations of New 10 Melones, yes. 11 MR. HERRICK: But CVPIA says you are supposed to 12 dedicate a certain amount of yield for fishery purposes; is 13 that correct? 14 MR. RENNING: Yes. 15 MR. HERRICK: If you are dedicating some of your yield, 16 why do you want to recoup some of the dedicated yield 17 through joint point pumping? 18 MR. BIRMINGHAM: Objection. 19 C.O. STUBCHAER: Mr. Birmingham. 20 MR. BIRMINGHAM: Mr. Herrick's question calls for a 21 legal conclusion on the meaning of the word "dedicate." 22 This is an issue that is currently pending before the U.S. 23 District Court, and I am sure Mr. Turner can attest to this 24 is the subject of significant legal debate. 25 C.O. STUBCHAER: Mr. Turner, do you have legal advice CAPITOL REPORTERS (916) 923-5447 11146 1 to give to your client here regarding answering this 2 question? 3 MR. TURNER: Well, I presume my client was just going 4 to respond by referencing the fact that that is a matter of 5 litigation, so I won't have any problem with him saying 6 that. 7 MR. HERRICK: Did I just get set up? 8 MR. RENNING: This is a matter of -- 9 MEMBER DEL PIERO: And run over. 10 MR. RENNING: The way I was going to respond is that 11 this is a matter of some legal debate, and it is also a 12 matter of some technical debate. There are different views 13 of how CVPIA and the dedication of the 800,000 should work 14 in a technical sense. I'm certainly not one to say what the 15 right answer is. 16 MR. HERRICK: That is fine. Let me try a different 17 approach, and maybe the same objection, but let me try. 18 Again, without testing your legal knowledge, Mr. 19 Renning, you would agree the permits that the Bureau has for 20 New Melones, although they allow the water to be used for 21 fish and wildlife purposes well downstream of the 22 Stanislaus, they only allow for uses within the basin, 23 consumptive uses within the basin of the Stanislaus; is that 24 generally correct? 25 MR. RENNING: They allow for uses within the four CAPITOL REPORTERS (916) 923-5447 11147 1 counties that are associated with New Melones. 2 MR. HERRICK: If the Bureau increases the amount of 3 water for fish during the pulse flow from New Melones and 4 then uses that increased amount later in the year to 5 calculate lost pumping, isn't the Bureau then figuring out a 6 way to export New Melones water in violation of its permit? 7 MR. RENNING: No. I think you are misunderstanding 8 what I am saying. 9 The operations of New Melones really have nothing 10 whatsoever to do with our request to use -- utilize the 11 joint point of diversion. There are actions under CVPIA 12 within the Delta that affect our ability to export water. 13 And those would be the kind of actions that we would be 14 wanting to use the joint point of diversion to replace that 15 lost capacity. 16 MR. HERRICK: But if the water from New Melones 17 increased the total amount that you would have been able to 18 export under the 100 percent of San Joaquin flow criteria 19 and then you're recouping that loss later, aren't you, in 20 fact, using New Melones water to calculate, to determine how 21 much you can export for use outside the basin? 22 MR. RENNING: Well, now that you have stated it that 23 way -- again, this is another matter in which there are 24 different legal interpretations and different technical 25 interpretations. I suppose your set of facts could be CAPITOL REPORTERS (916) 923-5447 11148 1 looked at in a particular way. But, again, I don't think 2 that our operations of New Melones affect our request 3 regarding the joint point of diversion. 4 MR. HERRICK: Under the Interim Operation Plan of New 5 Melones, in some years I think the total amount to be 6 dedicated to fish -- is it 347,000 acre-feet; is that 7 correct? 8 MR. RENNING: I can't remember the exact figure, but I 9 think that sounds right. 10 MR. HERRICK: But that amount can't be released absent 11 flood conditions, can't be released down the Stanislaus in 12 the 30-day pulse; is that correct? 13 MR. RENNING: No, it can't. 14 MR. HERRICK: Without testing our ability to do 30 days 15 times 1.98 times 1,500 cfs, you come up with somewhere 16 around 93,000 acre-feet; is that right? 17 MR. RENNING: That sounds right. 18 MR. HERRICK: The Bureau, then, in those wet years is 19 releasing the difference between 347,000 acre-feet and 20 93,000 acre-feet at some other time in the pulse flow; is 21 that correct? 22 MR. RENNING: Yes, we are. But I am really not the 23 right one to address any questions regarding operations, 24 these detailed type of questions regarding the operations of 25 New Melones. CAPITOL REPORTERS (916) 923-5447 11149 1 MR. HERRICK: Do you see any conflict of interest 2 between the operators and the biologists in deciding when 3 that additional water above the 93,000 acre-feet will be 4 released during the year, given the fact that depending on 5 when it is released it provides a larger pool from which to 6 draw exports? 7 MR. TURNER: I have to object. I fail to see how this 8 issue relates to the subject matter that this panel is 9 addressing, specifically the utilization of interchangeable 10 points of diversion which are -- the two projects we are now 11 talking about how the Bureau is operating New Melones. 12 Unless Mr. Herrick can explain how this relates to the joint 13 point -- 14 MR. CAMPBELL: I would like to join in that objection. 15 That line of question -- this line of questioning appears to 16 be a rehash of Phase II and Phase II-A, which the Board and 17 parties have spent several months on. 18 It would be my request that the cross-examiner not be 19 given any further latitude in that area because he's already 20 had several months in which to probe into those areas. 21 C.O. STUBCHAER: Mr. Herrick, could you explain the 22 relevancy of any potential conflict between biologists and 23 operators? 24 MR. HERRICK: The joint point of diversion is what 25 allows and what is sought here to increase exports above CAPITOL REPORTERS (916) 923-5447 11150 1 their, shall we say, limits now. And, of course, if the 2 Bureau's decisions about how to operate their upstream 3 reservoirs help it provide for additional water when it is 4 time to do joint point pumping, I think that is perfectly 5 relevant. 6 It may not be fun to talk about that, but that is the 7 problem here is the use of the upstream water. And one of 8 the uses these people propose is joint point pumping. 9 C.O. STUBCHAER: How about the possible difference 10 between the biologists and the operators? That is what your 11 question had to do with. 12 MR. HERRICK: The panel is asking us to allow these 13 issues to be resolved later, outside of this forum. We 14 don't think that's appropriate, so we are trying to explore 15 what is known now and what is not known, and why should we 16 rely on somebody else to decide it later. 17 C.O. STUBCHAER: I will allow the question to be 18 answered. 19 MR. CAMPBELL: To the extent that you know the 20 answer. 21 C.O. STUBCHAER: That is always the case. 22 Please direct comments through the Chair. 23 MR. RENNING: I would like to answer the question this 24 way: When we develop our annual operations plan for New 25 Melones Reservoir pursuant to the Interim Operation CAPITOL REPORTERS (916) 923-5447 11151 1 Agreement, the level of exports or the operations of our 2 export facilities are not part of how that operation plan is 3 developed each year. It is not a consideration in the 4 operation of New Melones. 5 MR. HERRICK: Mr. Renning, does the Bureau have a 6 position on whether or not the first priority of the Board 7 in deciding whether or not joint point should be allowed, 8 whether or not the first priority should be protection of 9 water right holders senior to the project? 10 MR. BIRMINGHAM: May I ask the question be read? 11 C.O. STUBCHAER: Court Reporter, please read the 12 question. 13 (Record read as requested.) 14 MR. BIRMINGHAM: Thank you. 15 MR. RENNING: I think we are delving into a rather deep 16 legal issue here that I'm -- I'm uncomfortable in 17 addressing. 18 MR. HERRICK: Your testimony states on Page 2 that -- 19 right in the middle of that top partial paragraph: 20 It was widely suggested that the JPOD be 21 pursued as a measure to regain lost water 22 supplies while still meeting all otherwise 23 applicable environmental protection measures 24 without construction of any new facilities. 25 (Reading.) CAPITOL REPORTERS (916) 923-5447 11152 1 Do you see that in your testimony? 2 MR. RENNING: Yes. 3 MR. HERRICK: Is it your testimony here that it's the 4 Bureau's position that joint point should only be pursued 5 after all otherwise applicable environmental protection 6 measures are met? 7 MR. RENNING: Yes. 8 MR. HERRICK: Do those environmental protection 9 measures include the Vernalis water quality standard? 10 MR. RENNING: They certainly do. But to the extent 11 that meeting the Vernalis water quality standard involves 12 project operations or other operations that are not affected 13 by the joint point of diversion, that does not -- that is 14 not necessarily relevant to the use of the joint point of 15 diversion. 16 MR. HERRICK: Is the Bureau asking for the ability to 17 operate under a joint point of diversion even though it may 18 not meet all other applicable environmental protection 19 measures? 20 MR. RENNING: Our reference there was to the Delta 21 standards that are controlled by the operation of Bureau's 22 facilities in the Delta and by inflow to the Delta. And 23 that as we have said before, we will operate New Melones and 24 our other facilities on the San Joaquin River in such a way 25 that there may be times that it is not possible or prudent CAPITOL REPORTERS (916) 923-5447 11153 1 to meet the Vernalis standard. 2 MR. HERRICK: Just so we are clear, is it the Bureau's 3 position, then, that even in instances where it believes, 4 feels, eventually does not meet other environmental 5 standards or permit conditions, it should still be allowed 6 to do joint point makeup pumping? 7 MR. CAMPBELL: Objection. Calls for a legal 8 conclusion. 9 C.O. STUBCHAER: Mr. Herrick. 10 MR. HERRICK: I believe it is our practice if there is 11 a potential legal conclusion answer, the witness is just 12 supposed to answer to the best of his knowledge and he is 13 not supposed to give a legal question. 14 C.O. STUBCHAER: Retry the question. 15 MR. HERRICK: Mr. Renning, is it your understanding 16 that this panel's request before the Board is that the 17 Bureau be allowed to use joint point of diversion even in 18 the instances when it is not meeting all of the applicable 19 environmental protection measures required of it? 20 MR. RENNING: Like I said before, we are -- that 21 particular reference is to the larger set of Delta 22 standards, not to the Vernalis standard. I think we all 23 recognize that that is a little bit different situation than 24 the other Delta standards. 25 MR. HERRICK: We don't all recognize that. CAPITOL REPORTERS (916) 923-5447 11154 1 MR. RENNING: Well, I am saying that in the sense that 2 there are certain things that we can do to affect water 3 quality or flow in the Delta, but those particular things 4 can't affect Vernalis. We don't have ability to affect 5 Vernalis in that same way. 6 MR. HERRICK: If you do makeup pumping under joint 7 point of diversion, doesn't that affect the amount of high 8 salinity water that eventually reaches the San Joaquin 9 River? 10 MR. RENNING: I don't understand your question. 11 MR. HERRICK: Don't the exports that come out of the 12 Delta-Mendota Canal eventually contribute to drainage into 13 the San Joaquin River? 14 MR. RENNING: Yes, they do. 15 MR. HERRICK: So, the drainage in the San Joaquin River 16 is one of the important criteria which determines how much 17 water is needed in New Melones to meet the Vernalis 18 standard; is that correct? 19 MR. RENNING: In a sense that is true, Mr. Herrick. 20 But I think that the issue of how salinity on the San 21 Joaquin River should be handled is really a problem that 22 needs to be addressed in its own right. 23 MR. HERRICK: Until that problem is addressed, is the 24 Bureau asking to be able to maintain a certain level of 25 drainage into the San Joaquin River? CAPITOL REPORTERS (916) 923-5447 11155 1 MR. RENNING: No, we are not asking to maintain a 2 particular level of drainage into the San Joaquin River. We 3 are asking to be able to use the joint point of diversion to 4 meet the demands that we have south of the Delta. 5 MR. HERRICK: Wouldn't you agree that the maintaining 6 of those demands is what causes that drainage? 7 MR. RENNING: Well, I guess the simple answer to your 8 question is yes. But I think that it's really a much more 9 complicated issue than you are suggesting that it is. 10 MR. HERRICK: Well, I'll go along and suggest that it 11 is a very complicated issue, but the question is: is it the 12 Bureau's position that it wants to maintain export 13 deliveries which then result in drainage in the San Joaquin 14 River but be allowed to not meet the Vernalis water quality 15 standard? 16 MR. RENNING: In the context of all of the problems 17 that are facing the water community now, the CalFed program 18 is going to presumably address all of those issues and come 19 up with plans that would address salinity on the San Joaquin 20 River. 21 MR. HERRICK: Could you point me to any part of the 22 CalFed program that is addressing salinity on the San 23 Joaquin River? 24 MR. RENNING: No. I am not that familiar with that 25 program. CAPITOL REPORTERS (916) 923-5447 11156 1 MR. HERRICK: Mr. Renning, on Page 2 you go through the 2 list of alternatives. Alternative 8, just so we are clear, 3 isn't Alternative 8 a request that the permits of the state 4 and federal export pumps be adjusted so that they can 5 operate at the maximum capacity? 6 MR. RENNING: No. I believe that Alternative 8 would 7 still be within the limits of our water rights. I wouldn't 8 want to characterize Alternative 8 as being a -- in the way 9 that you have suggested, though. The changes in demands 10 were done as to create an alternative that showed high use 11 of the joint point of diversion so its environmental effects 12 could be evaluated. 13 MR. HERRICK: Page XIII-6 of the DEIR under Number 8, 14 joint point Alternative 8, says: 15 Joint use of the SWP and the CVP points of 16 diversion in the Delta is limited only by the 17 combined physical capacities of the pumping 18 plants and by each project's annual 19 authorized diversion. (Reading.) 20 Do you see that? 21 MR. RENNING: Yes. 22 MR. HERRICK: What annual authorized diversion would be 23 in existence if your panel's recommendation were adopted by 24 this Board? 25 MR. RENNING: It is our position that the water rights CAPITOL REPORTERS (916) 923-5447 11157 1 of CVP would cover that level of diversion. 2 MR. HERRICK: What level of diversion? 3 MR. RENNING: That one would be associated with 4 Alternative 8. 5 MR. HERRICK: What is that? In other words, what would 6 be annual authorized diversion? Would that be 4,600 plus 7 10,300 over the year? 8 MR. RENNING: I am not sure that the alternative can be 9 looked at in that manner. If you go through our -- of the 10 water rights that are available for the CVP to use in 11 covering diversions from the Delta, those water rights would 12 cover the levels that are shown in Alternative 8. 13 C.O. STUBCHAER: Mr. Birmingham. 14 MR. BIRMINGHAM: I don't know if it would assist the 15 witness, but I have a copy of Water Rights Decision 1020 16 with me, and in answering Mr. Herrick's question this 17 witness may be able to refresh his recollection as to the 18 limitations imposed by that decision. 19 C.O. STUBCHAER: Mr. Turner, does your witness wish to 20 avail yourself of this offer? 21 MR. TURNER: Could I have a moment to consult with my 22 client? 23 C.O. STUBCHAER: Yes. Off the record. 24 (Discussion held off the record.) 25 MR. TURNER: Thank you, Mr. Stubchaer. CAPITOL REPORTERS (916) 923-5447 11158 1 I don't feel that Mr. Renning's -- Mr. Renning is 2 familiar with Decision 1020, and I don't think his review of 3 that would be any advantage to his responses. So I just 4 suggest he be permitted to respond at this point based on 5 his knowledge. 6 C.O. STUBCHAER: Thank you. 7 Proceed. 8 MR. RENNING: I am sorry, I can't remember exactly what 9 your question was. 10 MR. HERRICK: I am trying to find out what the 11 limitation -- the only limitation I see contained in joint 12 point Alternative 8 is and, as I see it, that limitation is 13 each project's annual authorized diversion. 14 What is that number, to the best of your knowledge? 15 MR. RENNING: That number would be the face value of 16 the various water rights that are available to the two 17 projects to use at the export pumps in the Delta. 18 MR. HERRICK: Do you know what that is? Trying to find 19 out -- 20 MR. RENNING: Don't hold me to these numbers. But for 21 the federal pump, federal pumps, we have approximately 22 22,000 cfs of water rights available to us. And the state 23 pump, I think that they're at full capacity at 10,000. 24 10,600, I believe, is available to them. 25 MR. HERRICK: Forgive my ignorance. Is it your CAPITOL REPORTERS (916) 923-5447 11159 1 testimony that the federal pumps can pump 4,600 cfs, but you 2 have water rights that allow you to pump 22,000? Is that 3 what you said? 4 MR. RENNING: Yes. 5 MR. HERRICK: Is there some reason the Federal 6 government built its pumps one-fifth of -- one-fifth of 7 their allowable water rights permit limits? 8 MR. RENNING: We have multiple water rights, and these 9 cover a number of different areas, and they cover diversions 10 in the Delta. The plant was built to meet a particular 11 demand, and it wasn't built to the full extent of our 12 rights. 13 MR. HERRICK: Under joint point Alternative 8, which is 14 limited by the physical capacities -- well, it will only be 15 limited by physical capacity, then, if your authorized 16 annual diversion is greatly in excess of the physical 17 capacity; is that correct? 18 MR. RENNING: That is right. 19 MR. HERRICK: The upper end of this joint point request 20 is what, 10,300 cfs plus 4,600 cfs over the entire year? 21 MR. RENNING: No. 22 MR. HERRICK: Explain to me why not. 23 MR. RENNING: The maximum use that we would have of the 24 joint point is shown in our studies, and I believe that the 25 highest use that we ever show is approximately 12,000 cfs CAPITOL REPORTERS (916) 923-5447 11160 1 for individual months. 2 MR. HERRICK: Is that how you come up with, on your 3 Page 2 under Alternative 8, you say demand increases from 4 3.2 million acre-feet to 3.5 million acre-feet? 5 MR. RENNING: That was -- the change in demand was done 6 specifically to force a high use of joint point of diversion 7 so that the environmental effects of it could be evaluated. 8 MR. HERRICK: I don't understand. What do you mean 9 "force a higher use"? 10 MR. RENNING: As I state in other places in the 11 testimony regarding exports from the Delta, you have to have 12 a number of things. You have to have the water available to 13 export. You have to have the capacity to export that 14 water. And you have to have a place to use that water. 15 That being either direct use or storage in San Luis 16 Reservoir. 17 By increasing the demand on the project, we are forcing 18 a higher use of water from storage from San Luis 19 Reservoir, thereby creating more space in San Luis Reservoir 20 that can be filled with the joint point of diversion. And 21 Alternative 8, that is done so that we have this kind of far 22 end of the spectrum coverage of the uses of the joint point 23 so that it can be evaluated in the EIR. 24 MR. HERRICK: According to you, then, the upper limit 25 of federal exports under joint point Alternative 8 is 3.5 CAPITOL REPORTERS (916) 923-5447 11161 1 million acre-feet? 2 MR. RENNING: No. That was -- that figure was selected 3 as a practical measure of what the demands that might 4 reasonably be met through the operations of the project. 5 MR. HERRICK: I apologize if I am not making myself 6 clear. I am trying to find out what the Bureau's 7 understanding of the maximum amount it could export under 8 the proposal. And the proposal is -- the proposal includes 9 joint point Alternative 8, doesn't it? 10 MR. RENNING: I suppose one way to answer your question 11 would be that arguably the whole capacity of the state plant 12 might be available to the CVP under certain circumstances. 13 But practically that is not going to happen. 14 MR. HERRICK: But that doesn't answer the question 15 about what is the maximum amount the Bureau believes it is 16 requesting under this joint point proposal? The Board has 17 to authorize something based on a review of the effects to 18 the environment. 19 So, if you're asking for this much, they review up to 20 that much. If you are asking for this much, they review up 21 to that much. I am trying to find out what it is the Bureau 22 believes is that maximum amount. 23 MR. SANDINO: Objection. It is vague and ambiguous as 24 to maximum amount. Do you mean total amount diverted from 25 the Delta on an annual basis? Do you mean modeled amount? CAPITOL REPORTERS (916) 923-5447 11162 1 Do you mean the diversion rate? 2 Maybe you can specify, and that might be easier for Mr. 3 Renning. 4 MR. HERRICK: The maximum amount to be diverted from 5 the Delta in any one year. I would want the rates, too. 6 MR. RENNING: I believe that is shown in some of the 7 exhibits there. I would have to refer to those exhibits. 8 MR. HERRICK: Is that the Table XIII one you are 9 referring to? 10 MR. RENNING: It would be Exhibit 10-F. 11 MR. HERRICK: Whose testimony is 10-F attached to? 12 MR. RENNING: That is my testimony. 13 MR. HERRICK: Your testimony begins with 10-MM on my 14 copy. 15 MR. RENNING: Those are our exhibits that are attached 16 to my revised testimony. The other exhibits on my original 17 testimony are still in place. That is part of them. 18 MR. HERRICK: Just as an intro, on overhead 10-F, which 19 is attached to your original testimony, if you can please 20 help me, I am not sure I can discern what that is. 21 MR. RENNING: 10-F shows the annual pumping for the 22 Central Valley Project, which is Tracy plus CVP wheeling, 23 and it shows that the maximum use under these alternatives 24 was for Alternative 8, and it approached 4,000,000 acre-feet 25 per year, and it looks like that was probably around 1962. CAPITOL REPORTERS (916) 923-5447 11163 1 I would have to go back and look at the studies to find the 2 particular year that that was done. 3 MR. HERRICK: In the absence of Alternative 8 or joint 4 point pumping, how much would the Bureau be exporting in 5 that year? 6 MR. BIRMINGHAM: Objection. Ambiguous. 7 C.O. STUBCHAER: Overruled. 8 MR. RENNING: Well, you can look at the graph and you 9 can see what the other alternatives would be doing. 10 MR. HERRICK: I don't mean to be argumentative, but, 11 no, I can't. 12 MR. RENNING: For instance -- 13 MR. HERRICK: Which line is -- 14 MR. BIRMINGHAM: Excuse me, Mr. Stubchaer. 15 C.O. STUBCHAER: Mr. Birmingham. 16 MR. BIRMINGHAM: I would like to go back to the earlier 17 question. The question was ambiguous because he asked 18 without Alternative 8 or the joint point. Now does he want 19 to ask -- is he asking of the other alternatives addressed 20 joint point what is the maximum or is he asking without any 21 joint point what is the maximum? The question truly was 22 ambiguous. 23 C.O. STUBCHAER: I thought you were referring to the 24 year which had previously been identified as 1962. 25 MR. BIRMINGHAM: No. I was referring to the fact he CAPITOL REPORTERS (916) 923-5447 11164 1 asked without -- under which alternative or without joint 2 point. 3 MEMBER DEL PIERO: We have a question and objection, 4 both of which are ambiguous. 5 C.O. STUBCHAER: Why don't you break it down, Mr. 6 Herrick? 7 MR. HERRICK: Mr. Renning, do you have any charts or 8 graphs that allows us to see the difference between the 9 maximum amount of export pumping allowed under Alternative 8 10 as compared to what the export pumping the Bureau would be 11 absent joint point of diversion? 12 MR. RENNING: Yes. That is shown on Exhibit 10-F. If 13 you look at Alternative 2, you can see that pumping under 14 that alternative in that same year would be about 3.2 15 million acre-feet. 16 MR. HERRICK: I am sorry, is that color coded? 17 MR. RENNING: Yes, it is. 18 MR. HERRICK: I'm sorry, that is the problem. I can't 19 distinguish those differences. 20 What is the net difference in that year of 1962? 21 MR. RENNING: Would be about 800,000 acre-feet. 22 MR. HERRICK: So, some other charts, perhaps, have some 23 average, but according to the time period that has been 24 modeled the Bureau seeks authorization to export an 25 additional 800,000 acre-feet of water in the year of CAPITOL REPORTERS (916) 923-5447 11165 1 greatest difference? 2 MR. RENNING: That would be the affect of authorizing 3 Alternative 8. 4 C.O. STUBCHAER: How much more do you have, Mr. 5 Herrick? 6 MR. HERRICK: Maybe an hour. I think I am through most 7 of it, but there are quite a few panel members here. 8 MEMBER DEL PIERO: Thank you for elucidating the 9 question. 10 MR. HERRICK: I apologize for that, if you want me to 11 cut it short -- 12 C.O. STUBCHAER: We always want people to cut it short, 13 but to get all the information that is required to without 14 being overly lengthy or redundant. But let's see. I saw 15 you looking at the clock, do you want to take a morning 16 break now or go another five, ten minutes? 17 MR. HERRICK: I think I will ask one more question and 18 then we can take a break. 19 Mr. Renning, is it your opinion that the Bureau's 20 permits would allow it to export an additional 800,000 21 acre-feet of water if the conditions that existed in 1962 22 arose? 23 MR. RENNING: Yes. 24 MR. HERRICK: This would be a good time for a break. 25 Thank you. CAPITOL REPORTERS (916) 923-5447 11166 1 C.O. STUBCHAER: We will take a 12-minute break. 2 (Break taken.) 3 C.O. STUBCHAER: We will reconvene the hearing. 4 MR. BIRMINGHAM: Mr. Stubchaer, before we go on the 5 record. 6 C.O. STUBCHAER: Off the record. 7 (Discussion held off the record.) 8 C.O. STUBCHAER: Now back on the record. 9 Mr. Herrick. 10 MEMBER DEL PIERO: Go ahead and beat that. 11 MR. HERRICK: Mr. Renning, your testimony says that 12 the original application for joint point was on September 13 7th, is there any significance to that date? 14 Sorry, I withdraw the question. 15 Mr. Renning, I have some confusion as to the panel's 16 request. It says -- I believe that I understand it, that 17 upon approval they would operate pursuant to Alternative 4. 18 Is that correct? 19 MR. RENNING: Yes, that's right. 20 MR. HERRICK: Again, excuse my ignorance. Alternative 21 9 is the one that includes the San Joaquin River Agreement. 22 Why isn't that the one that is being offered by this group? 23 MR. RENNING: I think that the approval of the San 24 Joaquin River Agreement would simply meld its way into 25 Alternative 4, that that simply covers how the San Joaquin CAPITOL REPORTERS (916) 923-5447 11167 1 River is operated, and we intend to operate the joint point 2 of diversion more or less as shown in Alternative 4. 3 MR. HERRICK: But on Table XIII-1 of the DEIR, it has a 4 73-year average and a critical period average and it 5 compares deliveries to both Alternative 1 and 2. It's on 6 Page XIII-8. 7 MR. RENNING: Yes. 8 MR. HERRICK: Excuse me again, if I'm mixed up on 9 this. As I read this, the amount of deliveries in thousands 10 of acre-feet that will occur under Alternative 9, which 11 includes the San Joaquin River Agreement, are different from 12 the amount authorized under, say, Alternative 8. Is that 13 correct? 14 MR. RENNING: I'm sorry, where are you looking at? 15 MR. HERRICK: Table XIII-1. Let's go to the far right 16 column. It says Alternative 9. 17 MR. RENNING: Yes. 18 MR. HERRICK: If we stay in the 73-year period, and we 19 do the comparisons to Alternative 2, we have SWP deliveries 20 and CVP deliveries. Is that correct? 21 MR. RENNING: Yes. 22 MR. HERRICK: Under Alternative 9 for CVP deliveries 23 compared to Alternative 2 under the 73-year period average, 24 Alternative 9 shows 45,000 acre-feet; is that correct? 25 MR. RENNING: Yes, that is right. CAPITOL REPORTERS (916) 923-5447 11168 1 MR. HERRICK: If we go one column to the left, 2 Alternative 8 shows 247,000 acre-feet; is that correct? 3 MR. RENNING: Yes. 4 MR. HERRICK: That is listed in your testimony as the 5 upper limit under the various alternatives; is that correct? 6 MR. RENNING: Yes. 7 MR. HERRICK: If the Board approves this panel's 8 request then the upper limit in Alternative 8 might occur in 9 the future depending on the submittal of a plan from CalFed; 10 is that correct? 11 MR. RENNING: Yes. 12 MR. HERRICK: Now, my question is: If the Bureau is 13 supporting the San Joaquin River Agreement and Alternative 9 14 shows less exports under -- Alternative 9 shows less joint 15 point exports than Alternative 8, why is the Bureau not -- 16 is there a reason the Bureau is not requesting Alternative 9 17 as the approved, preferred alternative for joint point 18 operations? 19 MR. RENNING: Well, we could do another alternative 20 that would show the system with the San Joaquin River 21 Agreement in place and with the appropriate facilities to 22 enable the full diversion capability of the state plant to 23 be used and with the various assumptions to force higher use 24 of the joint point and alternative, let's call it, 25 Alternative 10, that would probably end up looking very much CAPITOL REPORTERS (916) 923-5447 11169 1 like Alternative 8. 2 MR. HERRICK: But we haven't done that analysis, have 3 we? 4 MR. RENNING: No, we haven't. 5 MR. HERRICK: Am I to understand that that is actually 6 what is being requested then, an Alternative 10 that hasn't 7 been analyzed? 8 MR. RENNING: No. In the context of our request 9 regarding the joint point of diversion, we are just covering 10 that. And it's our testimony that this range of 11 alternatives covers the potential environmental effects that 12 might be associated with those various levels and whatever 13 happens with respect to operations on the San Joaquin River, 14 where they are going to be covered within this range of 15 alternatives. 16 MR. HERRICK: Is the difference here, then, that 17 Alternative 9 does not assume the South Delta Barrier 18 Program is operating? 19 MR. RENNING: That's right. 20 MR. HERRICK: But the other alternatives do? 21 MR. RENNING: Alternative 7 -- 22 MR. HERRICK: Alternative 7 and 8 do. 23 So, this panel's request to this Board in order to 24 allow Alternatives 4 through 8 to occur, they should presume 25 that the barrier program is in operation to protect the CAPITOL REPORTERS (916) 923-5447 11170 1 South Delta people? 2 MR. RENNING: I'm sorry, I didn't quite understand your 3 question. 4 MR. HERRICK: Let me put it this way: Why do you 5 assume for the purposes of joint point -- why do you want 6 the Board to assume for the purposes of joint point that the 7 barriers' protections are in existence, but you don't want 8 them to presume that with regard to approving the San 9 Joaquin River Agreement? 10 MR. RENNING: Well, the reason that we've done the 11 studies in this way is to show how the system would be 12 operated in Alternative 7 and 8 with that full capacity of 13 the state plants available. And that can only be available 14 if there are facilities in place to resolve the water levels 15 problems within the South Delta. 16 MR. HERRICK: So, until the facilities to solve the 17 South Delta problem are in existence, you would actually be 18 operating under Alternative 9 if the Board adopts the San 19 Joaquin River Agreement? 20 MR. RENNING: That's right. 21 MR. HERRICK: So, in fact, you are not asking for 22 Alternative 4, you are asking for Alternative 9? 23 MR. RENNING: Well, in the context of our appearance 24 here today regarding the joint point of diversion, we are 25 talking about Alternative 4. In the larger picture CAPITOL REPORTERS (916) 923-5447 11171 1 regarding what is going on at these hearings, yes, we are 2 asking that the San Joaquin River Agreement be approved by 3 the Board and that if all of this happens in the next year 4 or two, we would be operating on something that is a meld of 5 Alternative 4 and Alternative 9. 6 MR. BIRMINGHAM: Excuse me, Mr. Stubchaer. 7 C.O. STUBCHAER: Mr. Birmingham. 8 MR. BIRMINGHAM: Yesterday at the beginning of this 9 phase of the hearing, the Hearing Officer read a portion of 10 the notice that indicated that cross-examination would be 11 limited to one hour. 12 I note that Mr. Herrick has now been involved in this 13 cross-examination well in excess of an hour and a half. 14 Yesterday, when the notice was read by the Hearing Officer, 15 said that at the conclusion of an hour attorneys would be 16 given an opportunity to make an offer of proof to go beyond 17 the hour. 18 Although I may die by my sword at some point, I'm 19 wondering if Mr. Herrick could be asked to make an offer of 20 proof with respect to where he intends to go with his 21 remaining cross-examination? 22 C.O. STUBCHAER: Mr. Birmingham, I also said, although 23 it was not part of the opening statement, because of the 24 combination of the three agencies in one panel, we are going 25 to be lenient in the time for cross-examinations. Because CAPITOL REPORTERS (916) 923-5447 11172 1 if they had gone individually, they would have been allowed 2 an hour each, which is a total of three hours before an hour 3 or proof would be required. And I did ask Mr. Herrick 4 before the break how much time he needed and asked that he 5 be expeditious. So, I am going to allow the 6 cross-examination to proceed on that basis. 7 MR. HERRICK: Thank you, Mr. Chairman. 8 Mr. Renning, your testimony on Page 3, I believe it 9 describes the differences between or explained the 10 difference between the amount of water wheeled and the 11 amount of additional export; is that correct? 12 MR. RENNING: Yes. 13 MR. HERRICK: The explanation you gave was that the 14 wheeling amount may be greater because the flexibility of 15 the joint point would allow the projects to fill the federal 16 share of San Luis earlier; is that correct? 17 MR. RENNING: Yes. 18 MR. HERRICK: In other words, the state project might 19 pump more earlier, resulting in the federal pumps pumping 20 less later; is that correct? 21 MR. RENNING: Yes. 22 MR. HERRICK: Is there -- in that analysis did you take 23 into consideration whether or not that earlier pumping would 24 result in the filling of the federal share of San Luis, 25 whereas without the joint pumping that share might be filled CAPITOL REPORTERS (916) 923-5447 11173 1 that year? 2 MR. RENNING: That situation could occur. 3 MR. HERRICK: Would that, then, bump up, decrease the 4 difference between the amount that would be exported and the 5 wheeling amount? In other words, would you end up actually 6 exporting more than the number? 7 MR. RENNING: If we -- if the situation were such that 8 we were not able to fill San Luis Reservoir with use of 9 joint point of diversion, if you compare that to the 10 situation without use of the joint point of diversion, then 11 in that year we would not -- we would be delivering 12 different quantities of water. 13 MR. HERRICK: Are those different quantities contained 14 in or factored into Table XIII-1? Is that shown there? 15 MR. RENNING: Yes. To the degree that that happens in 16 any of the years in the study, and I have not done an 17 analysis to see whether that specific condition occurs, but 18 it may, in fact, occur, and that is shown in the annual 19 averages that are on that table. I mean, it is not shown on 20 the annual average, but it is within the annual averages 21 that that table portrays. 22 MR. HERRICK: If that table portrays 247,000 acre-feet 23 as an annual average, can you give us what that range is 24 under Alternative 8? 25 MR. RENNING: Forgive me for a second, I am trying to CAPITOL REPORTERS (916) 923-5447 11174 1 find something in my testimony. 2 MR. HERRICK: Certainly. 3 MR. RENNING: I've covered some of this in my 4 testimony. 5 The maximum use of the joint point of diversion in 6 particular years I have the figure here for Alternatives 5, 7 7, 8 and 9. And those are shown on Page 4 of my testimony. 8 And it shows that in Alternative 8 the maximum use in a 9 particular year was 800,000 acre-feet. The other 10 alternatives are somewhat less. 11 I'm not sure if I've answered your question. I think 12 that may be helpful to you. 13 MR. HERRICK: On that same page in your testimony, I 14 guess that is the first full paragraph, the large paragraph 15 in the middle, the third sentence says: 16 Wheeling tends to be concentrated in a 17 particular month because of availability of 18 capacity at Banks and availability of water 19 in the Delta. (Reading.) 20 MR. RENNING: Yes. 21 MR. HERRICK: Is that a statement of general practice 22 or a statement of preference? 23 MR. RENNING: This statement concerns the way that the 24 studies were done. If the water was available, if the 25 capacity was available, the computer program, that computer CAPITOL REPORTERS (916) 923-5447 11175 1 model would operate the system in that particular way, 2 assuming, of course, that all of the other applicable 3 standards were met. 4 MR. HERRICK: Without going too far to the extreme 5 here, does that mean the modeling done examined, going up to 6 your numbers in the top of your page, an additional export 7 of 608,000 acre-feet in one month? 8 MR. RENNING: I'm sorry, that is in one year, not in 9 one month. 10 MR. HERRICK: Okay. 11 MR. RENNING: I don't have the figures for what the 12 maximum use in a particular month is, but I could develop 13 those or you could get those off of the studies that are 14 available on DWR's web page. 15 MR. HERRICK: How would -- I guess this is speculation. 16 Is there any tension between the desire to spread out the 17 joint point pumping over more months as opposed to, maybe, 18 desires not to do it in some months and avoid fishery 19 impacts? 20 MR. RENNING: Yes. I believed I've covered that in my 21 testimony. In actual operations we would probably -- given 22 those choices, we would probably tend to spread that pumping 23 over a larger period because we would not want to have those 24 very high rates of pumping in one particular month. Or on 25 the other hand, if we knew that the conditions in the Delta CAPITOL REPORTERS (916) 923-5447 11176 1 were such that there weren't any fish species being 2 affected, there weren't any problem with water levels in the 3 South Delta, we might choose to pump at a very high rate in 4 one particular month, knowing that in the following months 5 that we would be pumping at much lower rates because of what 6 we did in that particular month. 7 MR. HERRICK: Is it correct, then, to say that the 8 modeling done tended to show the wheeling in a limited 9 number of months but in practice the wheeling may occur over 10 a longer period of time? 11 MR. RENNING: Over a longer period of time at lower 12 levels than would be shown in the studies. 13 MR. HERRICK: Is there an analysis of the effects of 14 doing that pumping over a longer range of time? 15 MR. RENNING: Yes. It was one of the alternatives that 16 we analyzed as part of one of the initial CalFed meetings to 17 look at use of joint point, and that is -- this is discussed 18 on Page 7 of my testimony. And it is covered in Exhibit 19 10-H, 10-H through 10-L -- I'm sorry, 10-HH through 10-LL of 20 my testimony. It shows how pumping -- high rates of pumping 21 could be moved in particular months to later months. 22 MR. HERRICK: On that same page, and I believe you said 23 in your direct testimony that the joint point pumping under 24 Alternative 4 could result in additional 200,000 acre-feet 25 of pumping 100,000 of that, approximately half, from surplus CAPITOL REPORTERS (916) 923-5447 11177 1 flows in the Delta and the other half from upstream storage 2 releases. Is that correct? 3 MR. RENNING: Yes. 4 MR. HERRICK: Generally, correct. 5 Are those upstream storage releases occurring -- let me 6 start over. 7 In the absence of the joint point, would that water be 8 released at the time that it's being released under this 9 joint point proposal? 10 MR. RENNING: Some of it probably would be to meet 11 particular requirements we have on the upper river system. 12 Some of it was probably a release that the program made to 13 meet demands for use under the joint point of diversion. 14 MR. HERRICK: So it actually results in a -- so in the 15 absence of the joint point, there would be more water in 16 that reservoir? 17 MR. RENNING: Potentially, yes. 18 MR. HERRICK: If we do have joint point and subsequent 19 years are wet, you may be able to recover that diminished 20 amount of water; is that correct? 21 MR. RENNING: Yes. 22 MR. HERRICK: If you have dry years, you may not be 23 able to recover that; is that correct? 24 MR. RENNING: Potentially, that could occur. But, 25 remember, these studies also assume the criteria that we had CAPITOL REPORTERS (916) 923-5447 11178 1 for temperature control on the upper Sacramento River. And 2 we operate the system to maintain a minimum level in Shasta 3 Reservoir at the end of the year. 4 MR. HERRICK: Are you saying the additional releases 5 for the joint point won't or cannot affect the ability to 6 maintain pool levels for temperature readings? 7 MR. RENNING: We would not make any releases for the 8 joint point that would affect our ability to meet 9 temperature control requirements from Shasta Reservoir. 10 MR. HERRICK: Is that true also for the yield of that 11 project in any particular year? I mean the water for 12 contractors. 13 MR. RENNING: Well, certainly. That is all subsumed in 14 the decisions that we make for water allocations each year. 15 MR. HERRICK: I didn't understand that. 16 What uses will have less water if there is less water 17 in the dam pursuant to this joint point? 18 MR. RENNING: At the beginning of the year we look at 19 what our forecasted water supply is and what we have in 20 storage in the reservoirs and what the standards are that we 21 would have to make pursuant to the particular type of year 22 we are forecasting would happen, and then make allocations 23 based on that. 24 One of the requirements that we have is to make sure 25 that there is a minimum amount of storage in Shasta CAPITOL REPORTERS (916) 923-5447 11179 1 Reservoir at the end of the year so temperature control can 2 be achieved on the Upper Sacramento River. And if we have 3 use of the joint point of diversion, that would be drafted 4 into the water allocation process, and we would decide 5 whether we needed to use it, could use it or that we 6 wouldn't want to use it in a particular year. 7 MR. HERRICK: The Bureau then may decide in order to 8 accomplish a certain level of joint point pumping, there may 9 be less water available to contractors downstream of the 10 dam? 11 MR. RENNING: No. I don't believe that our decisions 12 regarding use of joint point would affect the overall water 13 allocations. Let me rephrase that. I don't think that they 14 would affect the overall water allocations with the 15 exception of south of the Delta deliveries, the use of joint 16 point could enable those allocations to be higher than they 17 would otherwise be, but they wouldn't affect anyone else. 18 MR. HERRICK: On Page 4 and then on to Page 5 you talk 19 about the evaluation of the alternatives on the affect of 20 the E/I ratio. 21 Do you see that, bottom of Page 4 of your testimony? 22 MR. RENNING: Yes. 23 MR. HERRICK: I don't want to be unfair to you, but the 24 last sentence of that paragraph of Page 5 says: 25 We have not as yet compared the impacts of CAPITOL REPORTERS (916) 923-5447 11180 1 the other alternatives nor drawn any 2 conclusions from these changes shown in the 3 exhibits. (Reading.) 4 Does that mean that, I guess, the proponents, the panel 5 has not examined some of the impacts to the E/I ratio 6 resulting from the joint point use? 7 MR. RENNING: Those particular analyses were done to 8 show what the differences between Alternative 3 and 4 were. 9 There was not any evaluation of that, and I don't believe 10 that anyone else evaluated that. And we included that 11 simply to be forthright with the Board and everyone here 12 that that analysis was done and there it is. 13 MR. HERRICK: Let's turn quickly to the CalFed 14 process. Mr. Thabault clarified that it is not, I don't 15 want to misstate this, that it is not necessarily the CalFed 16 Ops Group that would develop the operational plan requested 17 here, but that some part of the CalFed process, I guess; is 18 that correct? 19 MR. THABAULT: That's correct. 20 MR. HERRICK: This may be for Mr. Renning, also. 21 Mr. Renning, you talk about a consensus plan being 22 developed for the joint point of diversion operations. For 23 either Mr. Thabault or Mr. Renning, describe for us how the 24 decision would be made to develop this operations plan. 25 MR. THABAULT: Could you be a little more specific in CAPITOL REPORTERS (916) 923-5447 11181 1 your question? 2 MR. HERRICK: Sure. Let's just assume there is some 3 subgroup of CalFed is charged with developing this plan. 4 How does that work? Is there a decision maker? Is there a 5 vote? What does it mean -- a bit compound here. Is there a 6 consensus? How is that decision made? Who makes it? 7 MR. THABAULT: CalFed, as a program, is made up of many 8 agencies that have various jurisdictions, regulatory 9 authorities and responsibilities. They have also associated 10 with that program a federally sanctioned stakeholder 11 advisory committee under the Federal Advisory Committee Act 12 that provides stakeholder information to the agencies. The 13 agencies are represented on a policy group, which are -- the 14 policy group is made up of regional directors or other heads 15 of those agencies locally and at the state and national 16 levels. And there is a whole host of technical committees 17 for water, water quality, water supply, fisheries, et 18 cetera, which provide information to those decision makers 19 and to the stakeholders. And the ultimate responsibility 20 for making a CalFed decision resides with that policy group 21 as they are implementing agencies, but there is a 22 substantial, if not, I might say, statistically significant 23 input from the stakeholder community on that process. 24 MR. HERRICK: Again, if the proposal here is to allow 25 that process to fill in the specifics of how joint point CAPITOL REPORTERS (916) 923-5447 11182 1 might occur, so I am trying to find out how the decision 2 would be made. I understand that all of these different 3 entities and some interested stakeholders participate. But 4 who decides? Is there a person? Two people? Department, 5 agencies? Is there a vote? 6 MR. THABAULT: As I stated, there is approximately ten 7 agencies that make up the lead; five from the federal and 8 five from the state. There will be a record of decision 9 signed, associated with that. Presumably all of those 10 agencies, as responsible agencies, would have to sign that 11 record of decision. 12 I don't think there has been a formalized vote or 13 consensus option necessarily identified within the policy 14 group. I couldn't speak to that. I don't necessarily sit 15 on the policy group at all times. And that through that 16 process, along with, again, significant stakeholder input, 17 the agencies that have responsibility and jurisdiction will 18 make the decisions and sign the record of decision. 19 MR. HERRICK: If your agency, the Fish and Wildlife 20 Service, didn't agree that the operating plan proposed would 21 protect fish, then you would say no, right; is that correct? 22 MR. THABAULT: That's correct. 23 MR. HERRICK: If your agency says no, then the 24 operating plan wouldn't be forwarded to the State Board? 25 MR. THABAULT: That's correct. CAPITOL REPORTERS (916) 923-5447 11183 1 MR. HERRICK: What other agencies would have that sort 2 of veto power? 3 MR. THABAULT: I would say if the Department of Water 4 Resources, Bureau of Reclamation made a decision that the 5 operations plan did not fully meet the needs of their 6 constituents in water supply, that they would have the 7 opportunity at the policy level to veto, so to speak, that 8 option. Department of Fish and Game, National Marine 9 Fishery Service would have similar authorities under the 10 state and federal Endangered Species Act, as does Fish and 11 Wildlife Service. 12 I am unclear as to the Corps of Engineers, whether they 13 would have a similar authority, so -- 14 MR. HERRICK: If a contractor of the Bureau disagrees 15 with the Bureau, that the proposed plan is adequate, would 16 they have a veto power to stop the plan from being forwarded 17 to this Board's Executive director? 18 MR. THABAULT: A specific stakeholder, if they voiced 19 objections, would not necessarily have a veto power in the 20 decision making process. Presumably, Bureau of Reclamation, 21 as a public-interest, decision-making body for their 22 constituencies would consider all of the interests of their 23 contractors and make a decision as to whether they, as a 24 decision-making body, would forward the proposal for the 25 Board in the interest of all of their contractors, not just CAPITOL REPORTERS (916) 923-5447 11184 1 one. 2 MR. HERRICK: What about the South Delta Water Agency, 3 if it thought that the joint point provision may adequately 4 protect export contractors and fish, but not them, how might 5 they affect the eventual recommendation of the plan? 6 MR. THABAULT: I think the South Delta Water Agency, by 7 virtue of the fact that their litigation has a very strong 8 input into both the Department of Water Resources and the 9 Bureau of Reclamation's decision-making ability, it is 10 certainly the intent, it's the stated intent, and it is our 11 stated intent that the CalFed program as a whole address 12 fully to the satisfaction of South Delta Water Agency their 13 needs. 14 MR. HERRICK: That kind of leads to a couple of lines 15 of questions here. 16 Is CalFed sort of taking over the Interim South Delta 17 Programs? 18 MR. THABAULT: CalFed has identified the South Delta as 19 an area that needs help, both in terms of exports, the South 20 Delta Water Agency, South Delta, South Delta water quality, 21 Vernalis flow requirements and they have -- I think there 22 has been a decision at the policy level to try and 23 incorporate the needs that have been identified in the 24 Interim South Delta Program since they are, more or less, 25 part and parcel of what CalFed is all about, into that CAPITOL REPORTERS (916) 923-5447 11185 1 program, to try and do them both at the same time. But not 2 necessarily all of the individual components of ISDP. We 3 need to get to the solutions of what the problems are down 4 there. 5 MR. HERRICK: Let's just come up with a hypothetical, 6 and maybe it can't be answered, but let's try. 7 Let's say that this CalFed process develops an 8 operations plan and temporary barriers are in effect during 9 part of the year. But the South Delta Water Agency says the 10 times when the barriers aren't in effect present risk and 11 the people downstream of the barriers aren't being 12 protected, but the CalFed group decides to proceed. 13 How would you recommend the Executive Director handle 14 that situation? Should he -- let me stop there. 15 MR. THABAULT: I don't think I would necessarily feel 16 comfortable giving an answer on what Mr. Pettit's decision 17 might be in that particular scenario. I do think that there 18 are a number of avenues once the CalFed decision is done and 19 once the State Board's decision is done, that the South 20 Delta Water Agency has numerous avenues that they can pursue 21 as a legal water user of water if there was a harm and if 22 they believe one was occurring. 23 MR. HERRICK: Assuming the Board believes that the 24 South Delta Water Agency users are legal users of water that 25 results from return flows -- in other words, your assumption CAPITOL REPORTERS (916) 923-5447 11186 1 is not borne out by past Board decisions. 2 MR. THABAULT: I am not making any assumptions on past 3 Board decisions because I am not fully versed in all the 4 Board's decisions on that issue. 5 MR. HERRICK: This may be almost the same question. I 6 apologize for that. 7 On what basis does this panel suggest Mr. Pettit make 8 his decision? 9 MR. THABAULT: We believe that Mr. Pettit and/or the 10 Board, once the environmental document and the EIS/EIR are 11 complete for CalFed, record of decision is signed, 12 environmental compliance is done, depending on what the 13 avenue they choose to review that and which is perceived, 14 the comments from the stakeholders on what their issues 15 might be, that I would hope that Mr. Pettit and/or the Board 16 would take into consideration all of that information upon 17 making a decision. 18 MR. HERRICK: Let me back up. Maybe I misunderstood. 19 Is it your understanding, then, that the approval of 20 some sort of operation plan in order to allow joint point of 21 diversion is dependent upon the environmental review of the 22 CalFed process? 23 MR. THABAULT: The operational plan is absolutely 24 integral to the development of the CalFed plan as a 25 whole. There are many, many aspects of CalFed, including CAPITOL REPORTERS (916) 923-5447 11187 1 habitat and other water quality issues which play on what 2 particular operations plan you decide on and how you propose 3 to implement flows, et cetera, and other aspects of that 4 plan. So you cannot take the plan in isolation, 5 necessarily. 6 CalFed will only approve an operations plan in context 7 of the larger CalFed proposal. 8 MR. HERRICK: The testimony of many of the members of 9 this panel say repeatedly that they believe that DEIR is 10 sufficient environmental analysis for approval of joint 11 point. 12 Is that different from what you are saying? 13 MR. THABAULT: No. I think it is the position of the 14 panel -- I'd certainly ask anybody else to pipe in. When 15 CalFed has completed its analysis and has developed an 16 operational plan, that the scope of the fix of that plan 17 will fall within the range of the current DEIR that the 18 State Board has developed. 19 MR. HERRICK: What if you are wrong? 20 MR. THABAULT: I think that would be certainly a 21 decision that the Executive Director has with its set 22 authority to make that decision. 23 MR. HERRICK: Again, I hope that I am not being 24 argumentative. It is one thing to say there will be an 25 additional environmental process which determines something CAPITOL REPORTERS (916) 923-5447 11188 1 to make a record of decision. It is a different thing to 2 say we hope or we believe some other process will come up 3 with a plan within the existing environmental review. 4 MR. THABAULT: Certainly, if it is determined that 5 CalFed proposal does not fall within the range of 6 alternatives, the regulations of CEQA and NEPA would have to 7 kick in and there would have to be a supplemental analysis. 8 All the stakeholders and agencies would be within that forum 9 to make their argument. 10 MR. HERRICK: Why do you think it is better to do it 11 after this environmental document, the Board's DEIR, is 12 adopted or before? Why wouldn't it be better for the 13 participants here to be part of development and argument and 14 analysis of that plan before this is resolved rather than 15 afterward? 16 MR. THABAULT: I don't think we've made any particular 17 assertions of the timing of the completion of either one of 18 two environmental documents. I do believe, absolutely, the 19 input of stakeholders in the CalFed program, development of 20 that operational plan and looking out for their interest is 21 integral to having a successful plan presented to the 22 Board. 23 MR. HERRICK: Could you explain to me what the No Name 24 Group's job is. 25 MR. THABAULT: The No Name Group is a group of agency CAPITOL REPORTERS (916) 923-5447 11189 1 and stakeholder staff that have been -- the group was more 2 or less formed under CalFed Operations Group to evaluate 3 modeling decisions, modeling hydrology, assist in the 4 dissemination of information to the operations group and 5 policy makers on a number of issues. They have been tasked 6 with specific items within the CalFed Bay-Delta program to 7 assist on water quality and water supply issues associated 8 with a number of alternatives that CalFed is proposing to 9 develop. 10 MR. HERRICK: Does the No Name Group publish notice of 11 meetings or agendas, or things like that? 12 MR. THABAULT: The No Name Group has specified 13 individuals that have been designated to sit on that group. 14 The meeting notices are fairly widely distributed outside 15 the individuals that sit on that group. I don't know if 16 there has ever been a particular exclusion from somebody 17 sitting in on a meeting or sitting in on a conference call. 18 MR. HERRICK: Correct me if I am wrong. It is my 19 understanding that periodically the No Name Group will 20 fairly quickly put together a conference meeting by phone 21 call; is that correct? 22 MR. THABAULT: If the situation warrants and we need to 23 get together fairly quickly, it can happen within a matter 24 of hours. 25 MR. HERRICK: Maybe there is no way to make this next CAPITOL REPORTERS (916) 923-5447 11190 1 one argumentative, but I have a question that -- 2 C.O. STUBCHAER: Nonargumentative. 3 MR. HERRICK: No, argumentative. 4 Mr. Thabault, I am not quite sure I understand why the 5 Fish and Wildlife Service has an interest in reliability of 6 water supply to Bureau contractors. Does it? 7 MR. THABAULT: What the Service's interest is is 8 successful completion of a CalFed program which fully 9 protects our trust resources. Also, in order to fully and 10 successfully complete a CalFed program and insure that our 11 interests are met, supply of reliability with state and 12 federal contractors is absolutely necessary. So, therefore, 13 I think it is in the interest of the Service that 14 contractors' needs be met along with and contingent upon 15 successfully implementing an environmental program. 16 MR. HERRICK: Does that include contractors of water 17 from New Melones? 18 MR. THABAULT: We do not get into the specifics of 19 allocations with Reclamation, delivery of water from 20 particular sources, or delivery of water from particular 21 areas, necessarily. We are interested in the environmental 22 parameters that we are concerned with and that those are 23 fully implemented. And we leave it up to Reclamation as to 24 how to do that. 25 MR. HERRICK: I don't understand why the Fish and CAPITOL REPORTERS (916) 923-5447 11191 1 Wildlife Service wants the Board to approve joint point 2 before you're able to determine some level of export that 3 can be allowed with sufficient protection to fish? Why 4 wouldn't that come afterwards? 5 MR. THABAULT: It is the position of the Service in its 6 participation with CalFed has identified the joint point as 7 a small but integral part of any solution that comes out of 8 CalFed, both in terms of flexibility and the needs of 9 meeting environmental concerns. 10 Since we are an integral player in CalFed, we believe 11 we have sufficient input into that process to ensure that 12 our environmental concerns are met in that program. And we 13 believe it is appropriate that we stand behind a process 14 that we help develop and are a key participant in. 15 MR. HERRICK: Again, I don't understand why you prefer 16 to have the Board approve the joint point before you've gone 17 through that process? 18 MR. THABAULT: What we are asking for is approval of a 19 joint point contingent upon and if and only when appropriate 20 analysis to the satisfaction of ourselves and all other 21 CalFed agencies and the stakeholders is developed and put 22 forward. We are not promoting. We are recommending, nor is 23 the panel recommending that implementation of joint point 24 occur prior to that analysis and that that plan be 25 developed. CAPITOL REPORTERS (916) 923-5447 11192 1 MR. HERRICK: Let me ask one more time. I am not 2 trying to be argumentative, seriously. I don't understand 3 that order. In other words, it is perfectly appropriate for 4 Fish and Wildlife Service to require analysis before some 5 sort of joint point is done. Why do you want the joint 6 point authorized by the Board before the analysis goes 7 forward? How does that further the interests of the Fish 8 and Wildlife Service? 9 MR. THABAULT: I think it furthers the interest of the 10 Fish and Wildlife Service within the CalFed program that 11 they can proceed on some assurances that joint point would 12 be authorized within that program, so then we can begin to 13 refine what the necessary parameters around that 14 implementation are, versus not understanding what the 15 boundaries of that authority might be with the State Board 16 process. 17 I believe it is in our interest to have that defined to 18 some broad level now so that we know what those boundaries 19 are. 20 MR. HERRICK: You, the Fish and Wildlife Service 21 apparently believes that there is some merit in making up 22 lost export water? 23 MR. THABAULT: What the position of the Service is is 24 that, provided all of the environmental conditions are met 25 and the beneficial uses of the legal users are satisfied, CAPITOL REPORTERS (916) 923-5447 11193 1 that we have no problem having water supplies made up 2 contingent upon those two provisos. 3 MR. HERRICK: Let's go through that pulse flow real 4 quickly. The pulse flow in April and May serves, as I 5 recall, two purposes. One is to help outmigrating salmon 6 smolts get out or through the Delta; is that correct? 7 MR. THABAULT: That's correct. 8 MR. HERRICK: One of them is that it's believed that 9 pulse also will help push Delta smelt populations back 10 downstream; is that correct? 11 MR. THABAULT: It provides for habitat and transport 12 flows, yes. 13 MR. HERRICK: So both purposes of that pulse flow water 14 is to get fish past the state and federal pumps; is that 15 correct? By past I mean downstream. 16 MR. THABAULT: Yes. 17 MR. HERRICK: So that water is necessary for fish and 18 wildlife; is that correct? 19 MR. THABAULT: I think that is a valid assertion, yes. 20 MR. HERRICK: Once it reaches Vernalis, its use or 21 intended purpose has not been fully accomplished; is that 22 correct? 23 MR. THABAULT: Once it reaches -- 24 MR. HERRICK: Vernalis. 25 MR. THABAULT: No. I would say it has not achieved its CAPITOL REPORTERS (916) 923-5447 11194 1 full potential. 2 MR. HERRICK: Why then does the Fish and Wildlife 3 Service believe all of that flow should be measured as lost 4 exports if it is needed past the pumps for fish? Why is it 5 a lost export? 6 MR. THABAULT: I don't think anywhere in my testimony 7 have I assumed that that is a lost export. 8 MR. HERRICK: The joint point proposal, especially 9 Number 4, which I believe this panel says will be operative 10 immediately after adoption by the Board, does that very 11 measurement. It says the amount of water that we lost that 12 are lost exports was a hundred percent of the San Joaquin 13 River -- measured against a hundred percent of San Joaquin 14 River flow. 15 MR. BIRMINGHAM: Objection. Argumentative. 16 C.O. STUBCHAER: Sustained. 17 MR. HERRICK: If the -- can you explain -- let me start 18 over. 19 Can you explain why the Service supports the recouping 20 of water that is necessary for fish because it could have 21 been exported? 22 MR. THABAULT: If the water has gone past Vernalis and 23 has had its intended purpose met through the export 24 reduction, and that water can be recouped at a later time 25 when in the opinion of the responsible resource agencies CAPITOL REPORTERS (916) 923-5447 11195 1 there would be no harm to another resource, we should not 2 have any problem recouping that water. 3 MR. HERRICK: But in the instance we were examining, 4 that purpose is not accomplished at Vernalis. It is 5 accomplished past downstream of the export pumps; is that 6 correct? 7 MR. BIRMINGHAM: Objection. Argumentative. 8 C.O. STUBCHAER: Sustained. 9 MR. HERRICK: Didn't we agree earlier that the pulse 10 flows from April and May, the purpose of those pulse flows 11 is not accomplished until the water passes the export pumps? 12 MR. THABAULT: Certainly not achieved its full 13 potential, yes. 14 MR. HERRICK: But the Fish and Wildlife Service doesn't 15 have any disagreement with the calculation that measures 16 that flow as lost expert; is that correct? 17 MR. THABAULT: I guess I am having trouble following 18 your relationship, Mr. Herrick. You'll have to step through 19 it a little more clearly. 20 There is several things going on in the Delta in terms 21 of -- are you comparing it against the Accord or specific 22 conditions within the biological opinion in relationship to 23 exports during the pulse flow period? I think you are going 24 to need to be more specific at what you are trying to get 25 at. I am just not following your logic. CAPITOL REPORTERS (916) 923-5447 11196 1 MR. HERRICK: Under joint point Alternative Number 4, 2 assuming some sort of operational plan is approved, the 3 Bureau will export at some later time in the year all of the 4 water that it could have exported during that pulse flow but 5 for when, for fishery purposes. Do you agree with that? 6 MR. THABAULT: That is a possibility. 7 MR. HERRICK: The measurement of what was lost is the 8 amount that was actually pumped compared to 100 percent of 9 the San Joaquin River flow; is that correct? 10 MR. THABAULT: That is certainly one interpretation of 11 the calculation. Yes. 12 MR. HERRICK: So, if the pulse flow water -- let's pick 13 a number, let's say, 5,000 cfs, that is the pulse flow 14 during that 30 days. If that water is all needed for fish, 15 to get those fish past the export pumps, I am asking why 16 does the Service think that should be the amount against 17 which lost exports are measured? 18 MR. THABAULT: If you recall in the biological opinion 19 it suggests that -- not suggests, it is in the project 20 description, that the projects would seek to export much 21 less than a hundred percent of the Vernalis flow to achieve 22 the benefit of a pulse flow. 23 C.O. STUBCHAER: Mr. Herrick, the additional hour has 24 now expired. I am going to ask for an offer of proof for 25 the additional time that you might need. CAPITOL REPORTERS (916) 923-5447 11197 1 MR. HERRICK: Certainly. I am sorry, let me just look 2 to the other witnesses who are here, their testimony, my 3 questions for them. 4 Mr. Chairman, what I would seek to do in another maybe 5 half hour, if you agree to that, we can certainly do it 6 after lunch so Mr. Maddow could do his questions. But I 7 have questions for some of the fishery experts regarding the 8 issue of entrainment and as to whether or not that has been 9 adequately analyzed as a potential alternative to the joint 10 point pumping. Additionally, I have a few questions for Mr. 11 Gage regarding the priorities incorporated into the joint 12 point proposal, and I would seek to show that those 13 priorities are not based on the protection of other water 14 users. 15 C.O. STUBCHAER: Will you stipulate to 30 minutes? 16 MR. HERRICK: Certainly. I actually do apologize. I'm 17 not trying to take up that much time. There are other 18 questions, and it is a panel of seven people. 19 C.O. STUBCHAER: I recognize that. I stated so 20 earlier. But I think we have been doing a little bit of 21 wheel spinning here in the last 20 minutes. 22 MR. HERRICK: Would you like Mr. Maddow to go now? 23 C.O. STUBCHAER: Mr. Maddow, you said ten minutes? 24 MR. MADDOW: Yes, sir. 25 C.O. STUBCHAER: Why don't we go to a quarter to 12 and CAPITOL REPORTERS (916) 923-5447 11198 1 then give Mr. Maddow 15 minutes. 2 MR. MADDOW: Thank you very much. I appreciate the 3 accommodation. 4 MR. HERRICK: Taking the cue from the Board, I will 5 jump to new topics. 6 Mr. Thabault, is it your understanding that the 7 eventual proposal will work to promote water supply 8 reliability of South Delta diverters besides export users? 9 MR. THABAULT: I think in the simplest form of the 10 question the answer is yes. 11 MR. HERRICK: Is that based upon your understanding of 12 ongoing efforts to institute the South Delta Barrier Program? 13 MR. THABAULT: Is it based on an ongoing recognition 14 that there is need to improve water surface elevations and 15 opportunities for South Delta Water Agency diversions. 16 There has not been a conclusion as to whether the barriers, 17 either all or in part, is the best way to do that. 18 MR. HERRICK: In fact, isn't CalFed examining 19 alternatives to the barriers? 20 MR. THABAULT: That is correct. 21 MR. HERRICK: That is notwithstanding the past 15 years 22 of work by the Bureau and DWR and SDWA on that? 23 MR. CAMPBELL: Objection. Argumentative. 24 C.O. STUBCHAER: Restate. 25 MR. HERRICK: I will just move on, Mr. Chairman. CAPITOL REPORTERS (916) 923-5447 11199 1 Mr. Thabault, you mentioned the South Delta lawsuit as 2 -- I am going to use the wrong word -- as sort of the 3 incentive for various parties to keep moving. Do you recall 4 that that lawsuit also included a decrease in the amount of 5 water coming down the San Joaquin River? 6 MR. THABAULT: I am not knowledgeable of the specifics 7 of either the litigation or settlement agreement. 8 MR. HERRICK: Are you aware of whether the CalFed 9 process is adopting -- is looking into addressing water 10 supply problems in the South Delta that may result from 11 decreased San Joaquin River flows? 12 MR. TURNER: Objection. I fail to see where that 13 relates to the joint point. 14 C.O. STUBCHAER: Question may be answered. 15 MR. THABAULT: To the best of my knowledge, there is 16 not an alternative within the CalFed process that is looking 17 at decreasing flows on the San Joaquin River. 18 MR. HERRICK: The question was to address the result of 19 decreased flows in the San Joaquin River that have already 20 occurred. 21 MR. THABAULT: I mean, again, to the best of my 22 knowledge, CalFed is looking at approving flows on both the 23 Sacramento and San Joaquin which would, presumably, at least 24 in part, address that issue. Whether it is a specific 25 target of that issue or not, I couldn't say. CAPITOL REPORTERS (916) 923-5447 11200 1 MR. HERRICK: Do you have an understanding as to 2 whether or not the barrier program, as proposed, helps 3 address water level issues for all South Delta diverters? 4 MR. THABAULT: The Service for quite some time right 5 now has been seeking to obtain information on exactly how 6 many and to what extent the barriers assist South Delta 7 diverters. We are unsure as to the amount or extent that 8 the barriers provide benefits to any one individual or group 9 of diverters in the South Delta. 10 MR. HERRICK: Is the CalFed process looking at how the 11 diverters downstream of the barriers might be protected? 12 MR. THABAULT: I am not sure the issue of downstream 13 diverters has specifically come up, but if that is an issue 14 I would absolutely recommend that we deal with it. 15 MR. HERRICK: If that is an issue, do you still want 16 the Board to adopt the joint point, but allow the CalFed 17 process to resolve that process? 18 MR. THABAULT: That would be our position, yes. 19 MR. HERRICK: Is it your understanding -- let me start 20 over. 21 Do the barriers, the South Delta barriers, protect 22 water levels for all of the areas upstream of them in the 23 South Delta? 24 MR. THABAULT: Again, based on my previous answer, we 25 have sought and are obtaining information as to what extent CAPITOL REPORTERS (916) 923-5447 11201 1 the barriers improve water surface elevation for diverters 2 in the South Delta and have not received that information. 3 MR. HERRICK: Mr. Ford, reading from your testimony, 4 you state that the joint point may be used to decrease 5 entrainment at the pumps; is that correct? 6 MR. FORD: Yes, I do. 7 MR. HERRICK: Do we know what the numbers are for fish 8 that are killed at the pumps every year? 9 MR. FORD: There is a number of estimates for specific 10 species, but overall, no. 11 MR. HERRICK: Do you have any numbers for the estimated 12 number of species that are killed for other reasons other 13 than the pumps? 14 MR. FORD: Could you be a little bit more specific? 15 MR. HERRICK: Have we prioritized what is harming the 16 various fish species? 17 MR. FORD: Of all factors or just related to the 18 project operations? 19 MR. HERRICK: I guess, all factors. 20 MR. FORD: I think there are a number of factors that 21 are commonly accepted to be among the most important, but 22 there is a lot of debate about the priority that those 23 should be given. 24 MR. HERRICK: Would you expect that increases in 25 exports for joint point purposes result in increase take or CAPITOL REPORTERS (916) 923-5447 11202 1 killing of fish at the pump that is pumping more under the 2 joint point? 3 MR. FORD: I think it depends on how it is operated. 4 The assumption is generally made or through the CalFed Ops 5 process there is a process where we evaluate changes in 6 project operations or the use of facilities. Joint point 7 would be folded into that amongst the operation of the 8 barriers and channel gate closures and those types of 9 things. 10 As we consider how to use these facilities, the fishery 11 impacts of that is taken into consideration and any 12 recommendation that is brought before CalFed Ops. In this 13 instance there would be trade-offs among species. But the 14 higher priority species would probably be given a high 15 importance in making that evaluation. 16 And to the extent that we have more flexibility to deal 17 with problems that have arisen, I am assuming that the high 18 priority species would be provided with a better protection. 19 MR. HERRICK: I'll leave other counsel to explore the 20 fishery issue in more depth. 21 My question is: Have you or has anyone on the panel 22 done an analysis to compare the numbers of fish that might 23 be taken as a result of the joint point use as compared with 24 the numbers that were taken without the joint point? 25 MR. FORD: No, that was outside the scope of my CAPITOL REPORTERS (916) 923-5447 11203 1 testimony. 2 MR. HERRICK: A similar question: Has anyone compared 3 the potential benefits of joint point for fisheries with 4 those same potential increase takes at certain times of the 5 year resulting from joint point? 6 MR. THABAULT: Within the diversions' effects on 7 fisheries scheme within the CalFed process, Mr. Herrick, 8 that has been done to a certain level. There are inherent 9 problems as to quantifying that benefit or effects 10 sometimes. But there has been considerable debate on the 11 benefits that you might obtain from a joint point by being 12 able to reduce exports at certain times and transferring 13 that to another time when the fish are less sensitive. 14 MR. HERRICK: Is that analysis before the Board? 15 MR. THABAULT: I would suspect that that analysis is 16 not before the Board yet. 17 MR. HERRICK: Do you think that that analysis should be 18 before the Board before they approve the joint point? 19 MR. THABAULT: I do. 20 MR. HERRICK: Lastly, for Mr. Thabault, Mr. Thabault, 21 does this CalFed process to address the South Delta issues, 22 include the examination of dredging in the South Delta 23 channels? 24 MR. THABAULT: Yes, it does. 25 MR. HERRICK: Is that one of the potential methods of CAPITOL REPORTERS (916) 923-5447 11204 1 protecting South Delta diverters? 2 MR. THABAULT: It is. 3 MR. HERRICK: Would you agree that that potential 4 method is not necessarily a method that might replace the 5 barrier operations, but might be in coordination with them? 6 MR. THABAULT: Certainly, either in whole or part 7 dredging can be done on its own or with barriers. I don't 8 think the analysis has been conducted sufficiently to 9 preclude one or the other. 10 MR. HERRICK: Let me ask the panel, in general. In 11 case you weren't here for earlier phases, the South Delta 12 Water Agency alleged through various testimony that joint 13 point operations in the past has caused harm. 14 What methods can you point us to that might show -- 15 that might prevent those harms from occurring in the 16 future? 17 MR. THABAULT: I would go back to a definition of harm, 18 Mr. Herrick. And we need to understand better what 19 constitutes harm in the South Delta and what measures might 20 be implemented to avoid a specific. 21 MR. HERRICK: Mr. Thabault, you saw the Exhibit I 22 showed yesterday of the nearly dry channels of Middle and 23 Old River in 1996. How is the Department of Fish and Game 24 addressing that issue? 25 MR. THABAULT: I don't believe we are addressing that CAPITOL REPORTERS (916) 923-5447 11205 1 at Fish and Wildlife Service. 2 MR. HERRICK: How is Fish and Wildlife Service -- 3 MR. THABAULT: The Service has been recommending for 4 many years now that dredging in those channels, either 5 specifically at diversion points or localized dredging over 6 portions of those channels, is appropriate to assist the 7 South Delta Water Agency in not a short term, but in the 8 long term to avoid those issues. I think there is more than 9 just exports that are associated with what you showed in 10 those pictures. There has been a substantial amount of 11 siltation and sedimentation over the years down there which 12 definitely needs to be fixed. 13 MR. HERRICK: Would you agree that regardless of the 14 cause, joint point pumping should not be allowed when such 15 conditions exist? 16 MR. THABAULT: We, as a panel, have stated that the 17 legal users of water in the South Delta should not be harmed 18 as a result of joint point. That is the position of the 19 panel. 20 Mr. Gage has a comment on that. 21 MR. GAGE: Mr. Herrick, I don't recall the specific 22 operational details related to the date of those pictures 23 were going on. But whether or not there was a joint point 24 diversion operation going on at that time, I don't know. 25 The joint point of diversion could actually improve CAPITOL REPORTERS (916) 923-5447 11206 1 conditions down there because the Tracy plant operates on a 2 continuous basis, which means they take water off of the 3 highs and lows; and in Clifton Court intake we stay off of 4 those times. 5 So if we had been in a condition where joint point of 6 diversion could have been enacted, we could have perhaps 7 moved a thousand or 2,000 cfs of exports from Tracy over to 8 Banks, which would have helped South Delta out in that 9 case. So the joint point of diversion could be beneficial 10 to you. 11 MR. HERRICK: Correct. But would you agree in the last 12 four years that sort of help for South Delta diverters has 13 not been proposed by either DWR or the Bureau, a shifting of 14 pumping from the federal to the state pumps? 15 MR. GAGE: I don't specifically recall whether we have 16 tried to do that. I know we have tried to deal more 17 effectively with South Delta Water Agency to try to tailor 18 the operations so we don't harm you. We are trying to 19 maintain better communication with you, and I believe the 20 last joint point of diversion that was authorized had a 21 specific plan required to assure that you were not 22 impacted. 23 MR. HERRICK: Is it this panel's proposal that joint 24 point be allowed if the joint point is not causing water 25 level harms in the South Delta, but that the underlying CAPITOL REPORTERS (916) 923-5447 11207 1 regular pumping is? 2 MR. GAGE: I am not sure I understand the situation you 3 are describing. 4 MR. HERRICK: If the operations plan that is developed 5 says that -- concludes that in these instances of joint 6 point operation it will not cause water levels to decrease 7 in the South Delta from the joint point, but there are 8 decreased water levels due to regular pumping at that time, 9 is it this panel's position that the joint point should be 10 allowed to proceed? 11 MR. GAGE: If the joint point of diversion didn't cause 12 any increased problems, then I don't see why it should 13 matter whether or not it was included. 14 We are -- of course, as I stated earlier, we are trying 15 to work with South Delta to try to mitigate whatever 16 problems are occurring with our normal operation. On 17 occasion we hear from you and we try our best to react to 18 try to avoid problems. 19 MR. HERRICK: Is there a reason why DWR does not want 20 to cure those problems before we move on to joint point 21 authorization? 22 MR. SANDINO: Objection. Argumentative. 23 C.O. STUBCHAER: Overruled. 24 MR. GAGE: I think it would be nice to see problems 25 resolved as quickly as we can. I believe our position here CAPITOL REPORTERS (916) 923-5447 11208 1 is a reasonable one to take on trying to request the Board 2 to approve something that is within the level of what has 3 been covered in the DEIR and contingent on CalFed providing 4 satisfactory evidence to the Executive Director on what the 5 plan would be. 6 MR. HERRICK: Thank you, Mr. Chairman. I apologize for 7 the length. I will let other counsel delve into other 8 areas. 9 C.O. STUBCHAER: You still have 13 minutes to go. Are 10 you going to come back and retrieve that 13 minutes? 11 MR. HERRICK: No. I'm done. 12 C.O. STUBCHAER: Thank you, Mr. Herrick. 13 Mr. Maddow. 14 ---oOo--- 15 CROSS-EXAMINATION OF DEPARTMENT OF THE INTERIOR, 16 DEPARTMENT OF WATER RESOURCES AND 17 DEPARTMENT OF FISH AND GAME 18 BY CONTRA COSTA WATER DISTRICT 19 BY MR. MADDOW 20 MR. MADDOW: Thank you, Mr. Stubchaer. 21 Again, I am Robert Maddow appearing on behalf of Contra 22 Costa Water District. 23 I have just a few questions and they principally will 24 be for Mr. Gage, Mr. Renning and Mr. Thabault. I appreciate 25 the Board allowing me to go out of schedule. That for me CAPITOL REPORTERS (916) 923-5447 11209 1 deals with, unfortunately, not work things, but taking care 2 of an ill parent. I do need to get away this afternoon. 3 Mr. Gage, it is my understanding from your testimony 4 that there has been use of the joint point since this 5 Board's approval of Water Rights Order 95-6; is that 6 correct? 7 MR. GAGE: Yes, I believe so. 8 MR. MADDOW: It is my understanding of the testimony of 9 a number of members of the panel that the process by which 10 those requests for use of joint point get reviewed includes, 11 among other things, the CalFed Operations Group; is that 12 correct? 13 MR. GAGE: Yes. Operation plans are discussed there. 14 MR. MADDOW: Sort of piggybacking on your recent 15 colloquy with Mr. Herrick, is it fair to say that one aspect 16 of what you are doing as the CalFed Operations Group looks 17 at requests for use of joint point is to try to work out the 18 problems which might arise with regard to any particular 19 request? 20 MR. GAGE: That is an accurate statement. 21 MR. MADDOW: Then, finally, as I understand the 22 testimony of a number of members of the panel, the process 23 includes a role for the CalFed Operations Group that may 24 include a role for the No Name Group, and it certainly 25 includes a role for the State Water Resources Control Board; CAPITOL REPORTERS (916) 923-5447 11210 1 is that correct, Mr. Gage? 2 MR. GAGE: I believe that is true, yes. 3 MR. MADDOW: When I say role for the State Water 4 Resources Control Board, what I have understood from the 5 testimony of several of the members of the panel is we are 6 talking about change petitions of one sort or another that 7 are the basis for the State Board's approval of a request to 8 use the joint point; is that correct, Mr. Gage? 9 MR. GAGE: That is the process we have used to date for 10 joint point of diversion. 11 MR. MADDOW: Now for Mr. Gage or also perhaps for Mr. 12 Renning, not every request to use the joint point was 13 ultimately approved by the State Board; is that correct? 14 MR. RENNING: Yes. 15 MR. GAGE: That's true. 16 MR. MADDOW: For the requests that began through this 17 process and which were not approved, is it fair to say that 18 some issue arose regarding the Bureau or the Department's 19 efforts to -- strike that. I would like to begin again, 20 and I would like to direct this to Mr. Renning to make it 21 precise. 22 Mr. Renning, for at least some of the requests that 23 have not made it through the process and ultimately received 24 State Board approval, is it fair for me to say that some 25 issue arose regarding your efforts to regain lost water CAPITOL REPORTERS (916) 923-5447 11211 1 which resulted in the process not being completed? 2 MR. RENNING: There were some of our requests that I 3 think it is fair to say that they weren't necessarily turned 4 down by the State Board, but the Board determined that all 5 of the applicable conditions that would need to be met had 6 not been met. So they couldn't proceed with approval. 7 MR. MADDOW: I believe I heard you testify earlier this 8 morning that at least in some instances there might have 9 been a concern that arose concerning having to do with in 10 Delta anadromous fish issues. 11 Would that be an example of the type of issue which 12 might result in a joint point request not being approved? 13 MR. RENNING: I can certainly think of circumstances 14 under which a fisheries agency might say that we have 15 problems, say, with Delta smelt or something like that. And 16 that they would not want to see pumping levels increased at 17 that particular time, and that would mean that through the 18 CalFed Ops Group process we wouldn't have a consensus that 19 we could take to the State Board. 20 MR. MADDOW: Mr. Renning, to date have water quality 21 issues led to any requests not being approved, in your 22 recollection? 23 MR. RENNING: I don't think there have ever been any 24 water quality problems or issues associated with joint point 25 use. CAPITOL REPORTERS (916) 923-5447 11212 1 MR. MADDOW: Have water quality issues been, I would 2 like you in particular to address salinity issues, been 3 taken into consideration regarding requests for use of joint 4 point? 5 MR. RENNING: They have been taken into consideration 6 in the sense that clearly the projects are operating to meet 7 all the applicable salinity standards within the Delta. 8 MR. MADDOW: If there were controversy or some 9 difficulty with regard to some aspect of water quality 10 matters, particularly salinity, it is possible, then, that 11 the process you've described could result in a project being 12 requested or not reaching the approval stage; is that a fair 13 conclusion? 14 MR. RENNING: That could conceivably happen, yes. 15 MR. MADDOW: For Mr. Thabault, to whom I am going to 16 direct this question because I think he has been talking 17 more about the process related to the petition that is 18 before the Board in Phase VI, Mr. Thabault, if the Board 19 does approve the petition that is before it in this phase, 20 will the agencies represented on this panel be following the 21 same process in order to request use of the joint point in 22 particular circumstances? 23 MR. THABAULT: In the interim, until such time as full 24 authority is granted, the answer would be yes. 25 MR. MADDOW: As I understand your reference to the CAPITOL REPORTERS (916) 923-5447 11213 1 interim, Mr. Thabault, you are talking about the difference 2 between the authority to go as far as Alternative 4 versus 3 the authority to use the joint point for Alternatives 5 4 through 9; is that what you are referring to? 5 MR. THABAULT: We are testifying that Alternative 4 6 should be authorized until such time as the rest of -- in 7 CalFed proposal to jump forward and a full use of joint 8 point would be authorized. 9 MR. MADDOW: As I understand your testimony, the 10 authority to go as far as Alternative 4 would involve 11 utilization, permission to use the joint point for some 12 circumstances which would not be available today; is that 13 correct? 14 MR. THABAULT: I probably have to look at Mr. Renning, 15 unless you have a specific. 16 MR. MADDOW: For example, would you be able to use the 17 joint point today with regard to wheeling water for certain 18 contractors? I believe the term that was used yesterday was 19 Cross Valley Contractors. Could you use the joint point for 20 that purpose today, or is that dependent upon the approval 21 of the petition that is before the Board in Phase VI? 22 MR. RENNING: Our view is that our request regarding 23 Alternative 4 is that Alternative 4 would allow us to serve 24 the contracts that we presently serve and to use joint point 25 in the way that is contemplated under 98-9. CAPITOL REPORTERS (916) 923-5447 11214 1 MR. MADDOW: I see. 2 Are there also some potential uses of the joint point 3 for the net benefit of fish that are contemplated by 4 Alternative 4, Mr. Renning? 5 MR. RENNING: Yes, that is right. 6 MR. MADDOW: Getting back to Mr. Thabault, then, the 7 process that we have been talking about that would be used 8 through alternative -- should the Board approve use of the 9 joint point up to Alternative 4 would be the same 10 case-by-case approval process, attempting to reach 11 consensus, I'll use that word, through the CalFed Ops Group 12 process and ultimately resulting in State Board approval? 13 That is still its intent? 14 MR. THABAULT: That is correct. 15 MR. MADDOW: Mr. Thabault, in describing what the panel 16 is recommending with regard to use of the joint point for 17 Alternatives 5 through 9, you spoke about the authority that 18 the Board would be granting to its Executive Director with 19 regard to finding consistency of the CalFed plan with the 20 State Board's directives; is that correct? 21 MR. THABAULT: That is what we are proposing at this 22 time, yes. 23 MR. MADDOW: Are you suggesting that this Board could 24 in this Phase VI establish criteria that its Executive 25 Director should use in determining whether or not the CalFed CAPITOL REPORTERS (916) 923-5447 11215 1 operations plan would be consistent? 2 MR. THABAULT: We are not in any way suggesting that 3 the Board should limit its ability in the direction it gives 4 to the Executive Director. We have used a similar type of 5 process under the 95-6/98-9 process which would go to the 6 Director for consistency. This is a bigger proposal. We 7 are suggesting that is one appropriate forum to do that. 8 MR. MADDOW: Thank you, Mr. Thabault. 9 Finally to Mr. Renning and Mr. Gage, would the Bureau 10 or the Department object to a condition requiring 11 consideration of water quality impacts in review of any 12 future requests for use of the joint point? 13 MR. RENNING: I believe that whatever our use of the 14 joint point is we intend to meet all of the applicable water 15 quality standards. 16 MR. MADDOW: Therefore, you would have no objection if 17 the Board were to expressly require that there be attention 18 paid and consideration given to those water quality 19 standards; is that correct? 20 MR. RENNING: Well, we have to see what the -- what is 21 actually being proposed there. I think that we would not 22 accept that we be required unreasonably to do certain 23 things. 24 MR. MADDOW: What about a condition requiring 25 mitigation of adverse impacts to water quality, Mr. Renning, CAPITOL REPORTERS (916) 923-5447 11216 1 would the Bureau object to that type of condition being 2 included in the Board's order? 3 MR. RENNING: I think we would have to have an 4 understanding of what was meant by "adverse" under a 5 condition like that. 6 MR. MADDOW: Mr. Gage, do you have an answer to that 7 last question? 8 MR. GAGE: I agree with Mr. Renning. We would need to 9 know what is really adverse. 10 MR. RENNING: Before you leave, Mr. Maddow, you asked 11 me a question regarding the approval process? 12 MR. MADDOW: Yes, Mr. Renning. 13 MR. RENNING: I want to make it clear that there is an 14 existing approval process that we use to utilize the joint 15 point of diversion pursuant to 98-9. It is not exactly a 16 petition process like it is normally done, but it is a 17 process that we do before the State Board. 18 MR. MADDOW: I understand that. I appreciate that 19 clarification, Mr. Renning, and that concludes my question. 20 Again, thank the Board. 21 C.O. STUBCHAER: Thank you, Mr. Maddow. Hope all goes 22 well with you this afternoon. 23 MR. MADDOW: Thank you. 24 C.O. STUBCHAER: Before we break for lunch, I will read 25 the order of the remaining cross-examiners: Mr. Jackson, CAPITOL REPORTERS (916) 923-5447 11217 1 Mr. Nomellini, Jr., Mr. Birmingham, Mr. Garner and Mr. 2 Suyeyasu. 3 We will break for lunch until 1:00 p.m. 4 (Luncheon break taken.) 5 ---oOo--- 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 11218 1 AFTERNOON SESSION 2 ---oOo--- 3 C.O. STUBCHAER: We will come back to order. 4 Mr. Turner. 5 MR. TURNER: Thank you, Mr. Chairman. I just wanted to 6 ask a quick question, if I could. I note that the testimony 7 that was submitted on behalf of John Renning attached there 8 is Government Exhibit 10-WW, which is a discussion about a 9 temperature model which was done by the Bureau of 10 Reclamation in connection with this joint point of diversion 11 issue. And the Bureau individual who prepared that whole 12 study has been here as a witness for the last couple of 13 days. 14 I was wondering if I might be able to find out if any 15 of the parties are intending to cross-examine on that 16 particular issue. If not, the author, Mr. Rowell, had other 17 things he would like to try and do, and, if necessary, we 18 would like to release him. 19 C.O. STUBCHAER: Sure. 20 Does anyone who was going to cross-examine, wish to 21 cross-examine Mr. Rowell on Exhibit 10-WW? 22 Mr. Jackson. 23 MR. JACKSON: Just three or four questions, unless it 24 goes somewhere that I don't expect. 25 C.O. STUBCHAER: You're up next, so that will work. CAPITOL REPORTERS (916) 923-5447 11219 1 MR. TURNER: Thank you. 2 MR. JACKSON: Do you want me to do Mr. Rowell first? 3 That was not what I had in mind. 4 C.O. STUBCHAER: Would it disrupt the flow of your 5 examination, Mr. Jackson? 6 MR. JACKSON: Actually, if I could do -- I am going to 7 try to divide my examination into hydrologists to set the 8 stage. Then I was going to have a couple questions with Mr. 9 Rowell and then I was going to the biologists, if that is 10 all right. 11 C.O. STUBCHAER: Okay. 12 Mr. Godwin was up. 13 MR. GODWIN: I don't believe Mr. Rowell has testified 14 yet, has he? 15 UNIDENTIFIED VOICE: No, he has not. 16 C.O. STUBCHAER: You are right. Is that your point, 17 Mr. Birmingham? 18 Mr. Turner -- Ms. Leidigh. 19 MS. LEIDIGH: I just wanted to point out that the Board 20 has had a practice in the past with government agencies of 21 having the various witnesses listed and only some of them 22 have testified, but oftentimes the government has had other 23 witnesses that they were willing to make available for 24 cross-examination. 25 I don't know if Mr. Rowell is listed in the list of CAPITOL REPORTERS (916) 923-5447 11220 1 witnesses or not. But if he was, I think it would probably 2 be possible. If he wasn't, then there wasn't any notice 3 that he would be here. 4 MR. TURNER: What we have done in this case, Mr. 5 Stubchaer, if you look at Mr. Renning's testimony, he does 6 have a section on that testimony, specifically discussing 7 the temperature modeling that was, in fact, done by the 8 Bureau. And we submitted Exhibit 10-WW with respect to some 9 more detail with Mr. Rowell, with respect to Mr. Rowell's 10 activity to supplement what Mr. Renning would be testifying 11 on. So we have Mr. Rowell here to respond directly. It is 12 in Mr. Renning's testimony; that is why we didn't call Mr. 13 Rowell as a direct witness. He would be supporting the 14 background information that Mr. Renning presented in his 15 declaration. 16 C.O. STUBCHAER: Is he on the list of witnesses? 17 MR. TURNER: No, he is not. 18 C.O. STUBCHAER: I think -- 19 MR. RENNING: Yes, he is. He was identified as a 20 witness. 21 C.O. STUBCHAER: We are getting into the gray area we 22 had before, where we had exhibits or graphs, but no written 23 testimony, and we sent it back again. Why don't the 24 questions on the temperature model go through Mr. Renning, 25 and he can consult with Mr. Rowell perhaps? Is that CAPITOL REPORTERS (916) 923-5447 11221 1 satisfactory? 2 MR. TURNER: Okay. 3 ---oOo--- 4 CROSS-EXAMINATION OF DEPARTMENT OF THE INTERIOR, 5 DEPARTMENT OF WATER RESOURCES AND 6 DEPARTMENT OF FISH AND GAME 7 BY REGIONAL COUNCIL OF RURAL COUNTIES 8 BY MR. JACKSON 9 MR. JACKSON: Michael Jackson for the Regional Council 10 of Rural Counties. 11 Mr. Renning, I am going to ask some questions, and I'll 12 probably address them to you. If Mr. Gage or any other 13 hydrologist wants to get involved in answering questions, 14 that is fine. 15 Mr. Renning, I would like to talk to you abut your 16 testimony starting on stage eight and working through your 17 conclusions. 18 First, conclusion number five: the joint point of 19 diversion should be approved in accordance with the 20 multi-agency proposal presented by Michael Thabault. 21 What agencies exactly are part of this proposal? 22 MR. RENNING: Department of the Interior, the 23 Department -- California Department of Water Resources and 24 California Department of Fish and Game. 25 MR. JACKSON: Are there other CalFed agencies other CAPITOL REPORTERS (916) 923-5447 11222 1 than those listed as part of this multi-agency proposal? 2 MR. RENNING: No. 3 MR. JACKSON: Do you know whether or not this proposal 4 is acceptable to the other CalFed agencies? 5 MR. RENNING: I do know this, that the joint point of 6 diversion is a concept that has been widely discussed in a 7 number of different forums, including CalFed, and proposed 8 as a way to enable certain goals to be met through the 9 operations of the existing project. 10 MR. JACKSON: Do those agencies presently support your 11 request to the State Board to change the CVP water rights 12 permits and to allow for an additional, I guess under 13 Alternative 4, 200,000 acre-feet of water to be taken from 14 the Delta on an annual basis? 15 MR. RENNING: I think you should address that question 16 to Mr. Thabault. 17 MR. THABAULT: We have not specifically requested 18 concurrence from other CalFed agencies on our joint 19 testimony, no. 20 MR. JACKSON: Has NMFS taken a look at this joint point 21 of diversion request to determine whether or not they would 22 support this proposal in regard to their listed species? 23 MR. THABAULT: As I said, I do not think we made 24 specific request of any other CalFed agency for their 25 concurrence on this testimony. CAPITOL REPORTERS (916) 923-5447 11223 1 MR. JACKSON: You are a representative of the United 2 States Fish and Wildlife Service, are you not? 3 MR. THABAULT: That's correct. 4 MR. JACKSON: Does the United States Fish and Wildlife 5 Service have jurisdiction over all the listed fish species 6 in the Delta? 7 MR. THABAULT: Well, depends what you call 8 "jurisdiction." 9 MR. JACKSON: The listing of spring-run salmon, for 10 instance, by Cal Fish and Game, is that within your 11 jurisdiction? 12 MR. THABAULT: We do not have responsibility for any of 13 the listing decisions on any of the anadromous species, 14 salmon, steelhead. 15 MR. JACKSON: The same would be true, then, for the 16 winter-run listing? 17 MR. THABAULT: That is correct. That is considered a 18 trust resource by the Fish and Wildlife Service. 19 MR. JACKSON: To your knowledge, the National Marine 20 Fishery Service considering a petition at the present time 21 in regard to the spring-run salmon? 22 MR. THABAULT: Yes. To the best of my knowledge, they 23 are. 24 MR. JACKSON: Have you consulted with NMFS in regard to 25 this proposal to expand the diversions in the Delta by CAPITOL REPORTERS (916) 923-5447 11224 1 200,000 acre-feet under Alternative 4? 2 MR. TURNER: I object. I think if Mr. Jackson is going 3 to be referring to the proposal, that is fine. But if he is 4 going to explain the proposal, he should be explaining it 5 accurately. 6 MR. BIRMINGHAM: I would object on the grounds that it 7 is asked and answered. 8 C.O. STUBCHAER: Mr. Jackson, lay some foundation. 9 MR. JACKSON: Mr. Stubchaer, I will. Let's start sort 10 of from this position. It is very hard to go through laying 11 foundation on every issue that has been brought up by these 12 seven witnesses within the time constraints. On one hand I 13 am trying to do it shortly, and on the other hand I'm being 14 told that I should go methodically through the foundation. 15 And I would like some direction which I am supposed to do. 16 C.O. STUBCHAER: If I recall the question correctly, 17 and I may not, you might ask if they are familiar with the 18 proposal, and then ask the question after that. 19 MR. JACKSON: Are you -- Mr. Thabault, are you familiar 20 with your proposal to the State Board? 21 MR. THABAULT: Yes, I am. 22 MR. JACKSON: Mr. Renning, is the number 200,000 23 acre-feet approximately correct for increased exports over 24 Alternative 2? 25 MR. RENNING: That is the -- which 200,000 figure are CAPITOL REPORTERS (916) 923-5447 11225 1 you referring to? There are several 200,000 figures. 2 MR. JACKSON: That was, actually, one of the places 3 that I was going. The 200,000 figure, that I am referring 4 to at the present time, is the difference in diversion at 5 the state and federal pumps between Alternative 2 and 6 Alternative 4? This is the diversion rate. 7 MR. RENNING: I am sorry, what is your question? 8 MR. JACKSON: Is the difference between Alternative 2, 9 which is no use of joint point, and Alternative 4, which is 10 Alternative 4 in your joint request approximately 200,000 11 acre-feet of water? 12 MR. RENNING: Yes. That is what the annual average 13 difference over the 73-year study was between the wheeling 14 and state plan for CVP. 15 MR. JACKSON: Mr. Thalbault, has the group, the 16 proponents of this joint point of diversion, entered 17 consultation with the National Marine Fishery Service in 18 regard to the extra 200,000 acre-feet of water to be 19 diverted by the state and federal pumps under the joint 20 point of diversion with the National Marine Fishery Service 21 in regard to the spring-run salmon? 22 MR. CAMPBELL: Objection. Vague as to the term 23 "consultation." Does counsel mean that in the legal sense 24 or the informal sense? 25 MR. JACKSON: First in the legal sense. CAPITOL REPORTERS (916) 923-5447 11226 1 C.O. STUBCHAER: Under the Endangered Species Act. 2 MR. BIRMINGHAM: Objection. The question assumes a 3 fact not in evidence, that there is a legal obligation to 4 engage in consultation. 5 C.O. STUBCHAER: Again, trying to streamline this, you 6 want to ask if there is a consultation process. 7 MR. JACKSON: Is there a consultation process for 8 candidate species under the federal Endangered Species Act? 9 MR. THABAULT: In what respect? Repeat that question. 10 MR. JACKSON: Is there a consultation process required 11 for candidate species under the federal Endangered Species 12 Act? 13 MR. THABAULT: There is no requirement for consultation 14 for candidate species. 15 MR. JACKSON: Have you had any discussions in regard to 16 the spring-run salmon with the National Marine Fishery 17 Service in regard to this particular proposal? 18 MR. THABAULT: There is a couple of different answers 19 to that. One is NMFS has been involved in CalFed both at 20 the technical and policy level. So they are aware of this 21 proposal and that is it coming forward. They are not a 22 party to the hearing. 23 Secondly, it is my understanding that Reclamation had 24 -- I'll allow -- I'll let Mr. Renning or maybe Mr. Ford can 25 expand on this. NMFS is reentering consultation on the CAPITOL REPORTERS (916) 923-5447 11227 1 operations of the projects pursuant to their listing 2 actions. Much, if not all, of what is embodied in our 3 Alternative 4 is what is currently allowed or has currently 4 been done or has currently been analyzed under previous 5 Section 7 consultation. 6 So, to that extent, yes, we are in consultation with 7 NMFS. Yes, NMFS is aware of the proposal and the elements 8 of what we are proposing, at least under Alternative 4, or 9 activities that are either currently ongoing that the 10 Department of Water Resources and Reclamation engaged in and 11 have been analyzed under previous Section 7s. 12 And I will let Mr. Ford -- 13 MR. FORD: I should also add that the broader use of 14 the joint points that we have brought up here have been 15 talked about informally during those consultations on the 16 existing use of the facilities, including the existing use 17 of joint point. And what we are getting from the NMFS is -- 18 I think what was agreed within the agency, that the proper 19 way to do it procedurally is once we have a better idea of 20 what would happen there we go into formal consultation 21 here. 22 There has always been the expectation of whatever we 23 get out of the Board decisions through this process would be 24 folded into our project description which changes the way 25 the projects are then operated, and at that time we would go CAPITOL REPORTERS (916) 923-5447 11228 1 into the state and federal agencies and reconsult with 2 them. At that time they would take into consideration what 3 the effects are of the endangered species that is under 4 their jurisdiction, and they would place the appropriate 5 terms to us through their biological opinions. 6 MR. JACKSON: So this process essentially changes then 7 the final authority from the State Water Resources Control 8 to the National Marine Fisheries Service biological opinion? 9 MR. TURNER: That is a legal question, Mr. Stubchaer. 10 But factually which agency was going to do what, I can 11 understand that. But asking for who and what doesn't change 12 the authority, I don't quite understand that these people 13 would be knowledgeable on that issue. 14 C.O. STUBCHAER: I am going to sustain. You can ask 15 the questions on a factual basis. 16 MR. JACKSON: So, under this proposal, the Board would 17 approve the lifting of the restriction that there would be 18 no increase in exports which is presently contained in 19 98-9. Prior to NMFS beginning its process of consultation 20 to determine whether or not they would approve such a 21 listing, or a lifting of conditions? 22 MR. FORD: When we consult with NMFS or Fish and 23 Wildlife Service, we are required to describe the projects 24 on which we are consulting on. The Board is -- and the 25 requirements that the Board placed upon our water rights is CAPITOL REPORTERS (916) 923-5447 11229 1 one of many factors that is folded into that description. 2 At that time when we have the changes of how we are 3 operating or our potential operations, that is the time we 4 go back into the reconsultation. And so when the Board -- 5 If the Board were to approve the joint points as we 6 have proposed it, that would then be folded into the project 7 description with the other Board actions under our new water 8 rights, and we would reconsult with the agencies at that 9 time under the Endangered Species Act. 10 MR. RENNING: Before you go on, Mr. Jackson, we want to 11 make it clear that Alternative 4 does not involve exporting 12 more water. Alternative 4 contemplates only making up for 13 those actions that had caused us to lose capacity. 14 MR. JACKSON: Let's talk about that. Your graph right 15 in front of you shows that without joint point of diversion 16 you lose 200,000 acre-feet of water; is that correct? 17 MR. CAMPBELL: May we identify the graph? 18 C.O. STUBCHAER: Good point. Yes. 19 MR. JACKSON: What is the government -- why don't we 20 put it on the screen? 21 MR. RENNING: This is graph -- this is Exhibit 10-E. 22 This is SWP wheeling for the CVP under the various 23 alternatives. I think the possible misunderstanding you 24 have is that current conditions are essentially Alternative 25 3. CAPITOL REPORTERS (916) 923-5447 11230 1 MR. JACKSON: Current conditions are Alternative 3? 2 MR. RENNING: Yes. 3 MR. JACKSON: Let's go through these alternatives. 4 MR. RENNING: There is another thing that needs to be 5 explained with respect to Alternative 4. 6 MR. JACKSON: We will get to that. Let's go through 7 them. 8 MR. BIRMINGHAM: I wonder if Mr. Renning could be given 9 an opportunity to respond to the question that was asked of 10 him? 11 MR. JACKSON: I don't believe he is responding to the 12 question. I think he is making a speech. 13 C.O. STUBCHAER: Well, he is entitled to explain his 14 answers. 15 MR. RENNING: I am sorry, Mr. Jackson. 16 C.O. STUBCHAER: Why don't we start over? 17 MR. JACKSON: In this particular document, which is 18 Government Exhibit -- 19 MR. RENNING: 10-E. 20 MR. JACKSON: -- 10-E, entitled "SWP Wheeling for the 21 Central Valley Project"; it shows nine alternatives, correct? 22 MR. RENNING: That's right. 23 MR. JACKSON: Alternative 1 is D-1485? 24 MR. RENNING: That's right. 25 MR. JACKSON: Alternative 2 is the situation without CAPITOL REPORTERS (916) 923-5447 11231 1 the joint point of diversion that you are requesting today? 2 MR. RENNING: That's right. 3 MR. JACKSON: Alternative 3 you describe as the 4 present condition authorized by 98-9? 5 MR. RENNING: No. 6 MR. JACKSON: What is Alternative 3? 7 MR. RENNING: Alternative 3 is deliveries using the 8 joint point of diversion for the Cross Valley Canal 9 Contract. 10 MR. JACKSON: And not for fishery purposes? 11 MR. RENNING: That's right. 12 MR. JACKSON: Is that allowed at the present time on 13 98-9? 14 MR. RENNING: 98-9 does not address that situation. 15 MR. JACKSON: 98-9 allows diversions for specific 16 purposes, does it not? 17 MR. RENNING: Yes. 18 MR. JACKSON: And among those purposes is for fishery 19 protection actions? 20 MR. RENNING: Yes. 21 MR. JACKSON: And 98-9 is Alternative 4? 22 MR. RENNING: Alternative 4 is deliveries of water to 23 contracts that we are presently using the joint point of 24 diversion for and for fishery protection actions, 25 replacement for fishery protection actions, under the 98-9 CAPITOL REPORTERS (916) 923-5447 11232 1 concept. 2 However, when we modeled 98-9, we had to model a 3 fishery protection action and then come up with a 4 replacement for it, and we were not able to precisely match 5 our replacement pumping for the fishery protection action. 6 And we, in fact, if you will, replaced more water than we 7 lost. So, it is not quite an accurate representation of 8 operations under 98-9, and we noted that in our testimony. 9 MR. JACKSON: You have been replacing more water in the 10 last years since 95-6 than you have lost to fishery 11 protection, have you not? 12 MR. RENNING: No, that is not accurate. 13 MR. JACKSON: So you have not been making up additional 14 water under 95-6 and now 98-9? 15 MR. RENNING: What we have done is that in certain 16 years we have been able to undertake replacement pumping for 17 fishery protection actions. In some cases we were unable to 18 do that. 19 However, by the beginning of the flex water year the 20 hydrologic conditions were such that it didn't really 21 matter, that we had already recovered all storage and had 22 filled San Luis again. So the impact of those fishery 23 protection actions was made up by the water conditions. 24 MR. JACKSON: Was there any year since 95-6 in which 25 you were not able to make up, either through additional CAPITOL REPORTERS (916) 923-5447 11233 1 pumping or just through water available because of large 2 quantities of precipitation, what you lost to the fishery 3 protection actions? 4 MR. RENNING: Like I just got through saying, we were 5 not able to make up through replacement pumping. But by the 6 end of the year the water conditions had, in fact, made it 7 up. And over the last several years we have not really lost 8 anything. 9 MR. JACKSON: Okay. So since 95-6, you have not lost 10 any water to the fisheries protection measures that you have 11 taken under that order? 12 MR. RENNING: In these past years, yes, that is right. 13 Mr. Gage pointed out that we actually have lost actions 14 under some of the AFRP actions that we have not been able to 15 replace. 16 MR. JACKSON: But that was not under the Board's order; 17 this was under something that the federal government did on 18 its own? 19 MR. RENNING: Perhaps Mr. Gage can explain that 20 better. 21 MR. GAGE: What I was trying to clarify in my mind was 22 that while there have been -- in addition to the Accord 23 there have been AFRP actions taken every year, and the joint 24 point of diversion has been requested to make up for those 25 impacts. And those impacts have, I believe, all been made CAPITOL REPORTERS (916) 923-5447 11234 1 up either through exports or through beneficial hydrology. 2 But to state that there have been no fisheries actions, as I 3 thought perhaps you were referring to them, that not have 4 been made up is not true because the baseline is D-1485 and 5 the projects did lose water from that that is not 6 recovered. 7 MR. JACKSON: Let's assume for the rest of these 8 questions that when I talk about lost water I mean water 9 previous to the Board's decision in the Accord, in the Water 10 Quality Control Plan and beginning with order 95-6. 11 So, now, have you lost any water since 95-6? 12 MR. GAGE: I am not sure I understand you correctly. 13 Since the implementation of water rights Decision 95-6, 14 which had the new Delta standards, the Accord, the Accord is 15 different water than was previous. But since then, the 16 Accord -- the AFRP actions that have been taken, I believe 17 all the impacts have been made up. 18 MR. JACKSON: Just to get this straight, the Bureau and 19 DWR agreed to the Accord, correct? 20 MR. GAGE: That's correct. 21 MR. JACKSON: Whatever you lost you agreed to lose in 22 the Accord? 23 MR. GAGE: I guess you can say that, yes. 24 MR. JACKSON: Calling your attention to Alternative 3, 25 what is Alternative 3 exactly, Mr. Renning? CAPITOL REPORTERS (916) 923-5447 11235 1 MR. RENNING: Alternative 3 is use of the joint point 2 of diversion to meet the existing contracts we have that 3 require use of the state facilities. 4 MR. JACKSON: Why -- is this the Cross Valley Contract? 5 Is that the one you are talking about? 6 MR. RENNING: Yes. 7 MR. JACKSON: Are there others? 8 MR. RENNING: There is two other contracts: one for the 9 National Veterans Cemetery and another one for a company 10 called Musco Olives. 11 MR. JACKSON: The Cross -- why haven't you been able to 12 meet the Cross Valley Contract? 13 MR. RENNING: We have met it. 14 MR. JACKSON: You have? 15 MR. RENNING: Yes. 16 MR. JACKSON: Were you meeting it before the request 17 for the joint point of diversion? 18 MR. RENNING: Yes. 19 MR. JACKSON: Then why is the joint point of diversion 20 necessary for meeting the Cross Valley Contract? 21 MR. RENNING: Well, there is some history associated 22 with this. When we entered into that contract, it was 23 entered into on the basis that the water would have to be 24 moved through the state Banks pumping plant because we did 25 not have capacity at Tracy for this contract. And we went CAPITOL REPORTERS (916) 923-5447 11236 1 through some procedures with the State Board that we felt 2 gave us the permission to use Banks for that purpose. 3 We later found out there was some difference of opinion 4 as to why that or as to that approval. And as a result, 5 that is why we filed the petition with the State Board in 6 1981 to resolve this on a permanent basis. 7 MR. JACKSON: Who was your disagreement with in regard 8 to the interpretation of the cross valley deliveries? 9 MR. RENNING: State Board staff. 10 MR. JACKSON: And what was the State Board staff's 11 position from 1991 [verbatim] until today? 12 MR. RENNING: Well, the State -- 1981, do you mean? 13 MR. TURNER: Did you say Board or the State Board 14 staff? 15 MR. JACKSON: I assume that the State Board staff 16 doesn't do anything that the State Board doesn't -- 17 For the purpose of the record, who do I ask about 18 that? 19 It was the State Board staff, not the State Board, that 20 you were having this difference with for the last 18 years? 21 MR. RENNING: Yes, that is right. 22 MR. JACKSON: Any particular staff member? 23 MR. RENNING: No. 24 MR. JACKSON: What was the State Board staff's position 25 that required you to ask for additional authority from the CAPITOL REPORTERS (916) 923-5447 11237 1 State Board? 2 MR. RENNING: It was their position that the basis on 3 which we had initially asked for that approval was not 4 appropriate. However, because of the fact that we relied 5 upon what we felt was their approval of that to enter into a 6 long-term contract, they more or less said, "Well, continue 7 to do this, but let's get this matter resolved and submit a 8 petition to the State Board." And that's what we did. 9 MR. JACKSON: What was the disagreement, if you know? 10 MR. RENNING: They felt that the manner in which we had 11 asked for approval of Banks as a diversion point was not 12 appropriate. 13 MR. JACKSON: Because you had no right to redivert 14 water at Banks? 15 MR. RENNING: No. The process by which we asked for 16 that they felt was not appropriate. 17 MR. JACKSON: It was oral instead of written? 18 MR. RENNING: No. 19 MR. JACKSON: What was defective in their mind about 20 the process? 21 MR. RENNING: We used what we felt was in essence 22 authority granted to us in our water rights permit to notify 23 the Board of our addition of diversion points. We did 24 that, and the Board staff, I suppose you would say, in de 25 facto manner approved that by telling us that we -- that CAPITOL REPORTERS (916) 923-5447 11238 1 they were not disapproving of it. We went ahead with that. 2 We entered into contracts. Several years later after they 3 gained a better understanding of what it was that we were 4 doing, they said that that method of adding a diversion 5 point was inappropriate, and that we should resolve that 6 matter with a petition to the State Board, and that is what 7 we did. 8 MR. JACKSON: So if I were to multiply 128,000 9 acre-feet by 19 -- by 18 from 1981 until today, I would come 10 up with a number that you have already been diverting at 11 Banks? 12 MR. RENNING: Yes. But we -- we have not delivered 13 that full 128,000 in every year. 14 MR. JACKSON: Did the Bureau ever do an environmental 15 impact statement for that contract? 16 MR. RENNING: I am not sure. I don't know if that 17 contract was pre-NEPA or not. 18 MR. JACKSON: Has there ever been any analysis of the 19 fisheries' effect of the use of Banks for that 128,000 20 acre-feet a year? 21 MR. BIRMINGHAM: Object on the ground of relevance. 22 How is what the Bureau or Board did or didn't do 20 years 23 ago relevant to the issue that is before the Board today? 24 If Mr. Jackson wanted to complain about that, he should have 25 done it 20 years ago. CAPITOL REPORTERS (916) 923-5447 11239 1 MR. JACKSON: I was much younger and in a different 2 line of work at that point. 3 What I am trying to do is, Alternative 3 may very well 4 be one of the alternatives chosen. I am trying to determine 5 -- I didn't find an analysis of Alternative 3 in the Board's 6 EIR, any analysis of this question, any mention of this 7 question, any description of this issue. And I can't tell 8 whether or not there was ever an environmental review of 9 that amount of water. 10 C.O. STUBCHAER: I guess I would ask what the relevancy 11 of the total amount of water possibly diverted since 1981 12 under this scenario has to do with the issue before us? The 13 EIR may be a different issue, but not -- go ahead. 14 MR. JACKSON: The relevance is that we are asking to 15 expand the use of Banks to include the CVP, and Mr. Renning 16 in his conclusions comes to the conclusion that there is no 17 environmental affect, and I would like to know whether or 18 not that is just his personal opinion or whether he is 19 relying on some kind of an examination of that 128,000 20 acre-feet of water over the last 18 years. 21 C.O. STUBCHAER: I think you can pursue the answer to 22 the environmental affect without getting into the details of 23 the '80s. 24 MR. RENNING: I can answer that question very easily, 25 Mr. Jackson. We relied on the studies that are in the Draft CAPITOL REPORTERS (916) 923-5447 11240 1 EIR. 2 MR. JACKSON: There were none other than that for that 3 rediversion at Banks that you know of? 4 MR. RENNING: That's right. 5 MR. JACKSON: In Alternative 4 -- 6 MR. RENNING: Let me add to that, that all of the 7 studies that we have done for various other purposes 8 involving the operations of the CVP, such as with the PEIS 9 for the Central Valley Improvement Act, for the studies that 10 supported the 1994 Accord, have all concluded that 11 deliveries under this contract and use of Banks for that 12 contract. And they have also included, as Mr. Thabault just 13 reminded me, the studies that were done in support of the 14 consultations under the Endangered Species Act. 15 MR. JACKSON: Could you turn that back to Mr. Gage? 16 Alternative 4, the additional water that is here in 17 Alternative 4 between the amount in Alternative 3 and 18 Alternative 4 is fishery protection actions? 19 MR. RENNING: That additional wheeling was done to 20 replace capacity lost for fishery protection actions, 21 capacity lost at Tracy for fishery protection actions. 22 MR. JACKSON: Just looking at it, approximately 40 23 percent of Alternative 4, Alternative 5, Alternative 6, 24 Alternative 7, Alternative 8 and Alternative 9 is the 25 increment that is presently going to the Cross Valley CAPITOL REPORTERS (916) 923-5447 11241 1 Contract; is that right? 2 MR. RENNING: I think what you can conclude from 3 looking at Exhibit 10-E and also 10-D that the annual 4 deliveries, average annual deliveries, for the Cross Valley 5 Contract are on the order of 90,000 acre-feet of water a 6 year. 7 MR. JACKSON: That is what that graph would show, I 8 believe, for Alternative 3? 9 MR. RENNING: Yes. 10 MR. JACKSON: And that increment is present in 11 Alternative 4, 5, 6, 7, 8 and 9 on this graph that is 12 presently on the board -- 13 MR. RENNING: That's correct. 14 MR. JACKSON: -- that we are talking about? 15 You indicate in your conclusion that your request, 16 that the group's request, will ultimately permit the use of 17 the joint point of diversion beyond that permitted by Water 18 Rights 95-6 and concepts in that order, correct? 19 MR. RENNING: Yes, that is right. 20 MR. JACKSON: What concepts in 95-6 are you referring 21 to in your conclusion? 22 MR. RENNING: That concept is that the use of joint 23 point of diversion would be only used to replace capacity 24 lost for fishery action. And Alternatives 5, 6, 7, 8 and 9, 25 the joint point of diversion is used whenever possible to CAPITOL REPORTERS (916) 923-5447 11242 1 meet CVP deliveries irrespective of whether a fishery 2 protection action took place or not. 3 MR. JACKSON: Is it your understanding that the use of 4 Water Rights Order 95-6 allows or does not allow the Cross 5 Valley Canal diversion at Banks? 6 MR. RENNING: I don't believe that Order 95-6 or 98-9 7 addresses that issue. 8 MR. JACKSON: So it would be sort of up to the reader 9 to determine whether or not those diversions were 10 appropriate under those decisions? 11 MR. BIRMINGHAM: Objection. Asked and answered. 12 C.O. STUBCHAER: Overruled. 13 MR. RENNING: I am sorry, was there a ruling? 14 C.O. STUBCHAER: You may answer. 15 MR. RENNING: Forgive me, Mr. Jackson, could you repeat 16 the question? 17 MR. JACKSON: It would be up to the reader to determine 18 whether or not they believed that the Cross Canal diversions 19 were permitted by Water Rights Order 95-6? 20 MR. RENNING: No, that is not what I said. 21 MR. TURNER: Now, I will raise an objection. Mr. 22 Renning's response was that 95-6 and 98-9, and I quote, "Do 23 not address those diversions." Now how Mr. Jackson wants to 24 interpret "do not address," he is now asking Mr. Renning, 25 "Well, does that mean I have to read it?" He said it does CAPITOL REPORTERS (916) 923-5447 11243 1 not address it. That could be one conclusion, does that 2 mean it doesn't authorize, it does authorize -- well, that 3 would be a legal question. 4 MR. JACKSON: That is why I didn't ask it. 5 MR. TURNER: I think he has the answer that Mr. Renning 6 had told him, that those decisions do not address those 7 deliveries, those diversions. 8 C.O. STUBCHAER: With that explanation, I think -- 9 MR. JACKSON: We will move on. 10 C.O. STUBCHAER: Right. 11 MR. JACKSON: In your conclusion number four you 12 indicate that Board approval of the joint point of diversion 13 will require that certain limitations be limited in the 14 Central Valley Project water rights permits? 15 MR. TURNER: I would point out again that that was a 16 matter that I corrected in my errata sheet that was 17 distributed yesterday, to have it reworded. 18 MR. JACKSON: Let me read it this way: Board approval 19 of the joint point of diversion will require that the 4,600 20 cfs limitation be clarified to confirm that it applies 21 exclusively to diversions at the Tracy pumping plant point 22 of diversion? 23 MR. RENNING: That's right. 24 MR. JACKSON: That is your position? 25 MR. RENNING: That's right. CAPITOL REPORTERS (916) 923-5447 11244 1 MR. JACKSON: If the Board -- what is unclear about the 2 4,600 cfs limitation, in your mind? 3 MR. RENNING: Well, I think if you read that permit 4 term that is in our permits it causes you to ponder why it 5 is in there. And, well -- 6 MR. JACKSON: I am sorry, every water rights holder, I 7 suppose, ponders why the Board decided the way it decided? 8 I mean, what is different about this? 9 MR. RENNING: Because of the ambiguity of the language 10 in this permit term. 11 MR. JACKSON: You have indicated you believe there is 12 ambiguity? 13 MR. RENNING: Yes. 14 MR. JACKSON: What is ambiguous in your mind? 15 MR. RENNING: That the plain reading of the term is 16 that it limits our ability to divert at Tracy to 4,600 cfs. 17 MR. JACKSON: Do you have any other point of diversion 18 that has been authorized by this Board? 19 MR. BIRMINGHAM: Again, Mr. Stubchaer, I ask that the 20 witness be allowed to finish his answer before Mr. Jackson 21 interposes another question. 22 C.O. STUBCHAER: I think that is a valid point. 23 Please go ahead, Mr. Renning. 24 MR. RENNING: The puzzling nature of that is that the 25 capacity of the Tracy plant is only 4,600 cfs. So the CAPITOL REPORTERS (916) 923-5447 11245 1 purpose of that particular term in our permits is puzzling. 2 MR. JACKSON: Wouldn't it be -- as long as we are 3 talking about ambiguity, wouldn't it be a reasonable way to 4 interpret that, to make it clear that you weren't supposed 5 to redivert anywhere else? 6 MR. RENNING: Well, that certainly doesn't say that. 7 The permit certainly doesn't say that. 8 MR. JACKSON: In order to do this particular -- you 9 cannot do what is proposed here by this group unless that 10 limitation is lifted? 11 MR. RENNING: Well, we have characterized it as a 12 limitation or ambiguity. I would prefer to refer to it 13 more as ambiguity because the plain language of the 14 condition is what I just spoke about. But we think that 15 because of these possible questions that come up, that this 16 should be a matter that the Board clearly addresses and 17 places in our permits' terms and conditions that are easy to 18 understand. 19 MR. JACKSON: Are you familiar with what has been 20 referred to as the Corps permit? 21 MR. RENNING: Yes, I am somewhat familiar with it. 22 MR. JACKSON: The Corps permit is a limitation on 23 export of both projects together, correct? 24 MR. RENNING: I would rather have Mr. Gage address 25 those questions. CAPITOL REPORTERS (916) 923-5447 11246 1 MR. JACKSON: Certainly. 2 Mr. Gage, what is the Corps permit? 3 MR. GAGE: The Corps permit is what places limitations 4 upon the exports at the Banks facility and Clifton Court 5 intakes, specifically until such time as other improvements 6 are made in the Delta. Right now it limits us to 6,400 cfs 7 pumping, which is about equivalent to 6,680 cfs diversions 8 because we do provide service to Byron Bethany Irrigation 9 District before our pumps. And in the wintertime we are -- 10 between December 15 and March 15th we are also allowed to 11 export above that one-third of the San Joaquin River flow 12 when the San Joaquin flow is above a thousand cfs. 13 MR. JACKSON: Is there any joint limitation in the 14 Corps permit on what the Bureau and the State Water Project 15 do together? 16 MR. GAGE: To my knowledge, there is not. That letter 17 is specifically regarding the Clifton Court and, I believe, 18 was set up because of scour concerns. 19 MR. JACKSON: To do this project will you have to 20 export more than the Corps permit allows you to do through 21 the Banks plant? 22 MR. GAGE: No, we would not. The position being 23 forwarded by this group is that we would continue with the 24 existing conditions until the CalFed arrangements allowed 25 something further, and that would, of course, require CAPITOL REPORTERS (916) 923-5447 11247 1 something that alleviated the Corps' concerns about scouring 2 in the South Delta. 3 MR. JACKSON: So, in this regard is the Corps part of 4 this application group? 5 MR. GAGE: No, they are not. 6 MR. JACKSON: Is the Corps part of CalFed? 7 MR. GAGE: Yes, they are. I believe they are. They 8 are part of the CalFed operations group. 9 MR. RENNING: Mr. Jackson. 10 MR. JACKSON: Yes. 11 MR. RENNING: All of the alternatives, with the 12 exception of Alternatives 7 and 8, assume compliance with 13 the Corps permit. 14 MR. JACKSON: I was going to get there, so maybe we can 15 get there a little faster. I would like to take a look 16 before that at -- Alternative 5 is the alternative that uses 17 the joint point of diversion and has the capacity limits of 18 the Corps permit in place, correct? 19 MR. RENNING: Yes, that is right. 20 MR. JACKSON: Now, anything above that would require 21 the Corps to change the permit, correct? 22 MR. RENNING: No. The Corps permit applies to the 23 capacity that Banks can be used at, and we stay within the 24 limits of the Corps permit in all of the alternatives with 25 the exception of Alternatives 7 and 8. Those alternatives CAPITOL REPORTERS (916) 923-5447 11248 1 assume that there are facilities in place that address the 2 conditions that are the subject of the Corps permit. 3 MR. JACKSON: So Alternatives 2 through 6 and 9 are 4 consistent with the Corps permit; Alternative 7 and 8 are 5 not? 6 MR. RENNING: Yes, that is right. But I wouldn't 7 characterize as 7 and 9 as not being in compliance. They 8 assume facilities that resolve the issues that the Corps 9 permit addresses. 10 MR. JACKSON: Is there anything in the Corps permit 11 that says that if you build certain facilities that the 12 permit disappears? 13 MR. RENNING: I think Mr. Ford can address that. 14 MR. FORD: I don't believe so. But right now we have 15 -- the Department has been undertaking the Interim South 16 Delta Facility Project for a number of years. The Corps 17 permit is designed to address scouring and, I believe, maybe 18 also navigation concerns. And the new facilities that are 19 being -- have been under study for quite a number of years 20 now were designed to address those issues. At which time 21 when those facilities would be completed or during the 22 permitting processes for those new facilities, we would seek 23 a change in the Corps permit with the understanding that the 24 existing problems would be resolved or the Corps' concerns 25 would be resolved and that we would be petitioning for a CAPITOL REPORTERS (916) 923-5447 11249 1 change in the conditions that are now in the Corps permit. 2 MR. JACKSON: In what year will that take place? 3 MR. FORD: It will depend on CalFed scheduling because 4 a lot of that is being wrapped up within that. 5 MR. JACKSON: So, the CalFed schedule is that they 6 would issue their Environmental Impact Report December 31st, 7 1999; is that right? 8 MR. THABAULT: I believe the current schedule is for a 9 draft document sometime late spring. Early summer with a 10 final decision document in December, the latest. And it is 11 a programmatic document. 12 MR. JACKSON: After the programmatic document -- if it 13 was approved, then there would be another project specific 14 document required before you could go forward with the 15 facilities upon which Alternatives 7 and 8 would be based? 16 MR. THABAULT: Yes. I believe a supplement 17 environmental document specific to those project elements 18 would have to be completed prior to proceeding on those. 19 MR. JACKSON: And that could take another year or two? 20 MR. THABAULT: Depending on the scope and breadth of 21 the programmatic and any existing environmental 22 documentation that DWR had prepared for South Delta program, 23 it may be shorter. 24 MR. JACKSON: Has the South Delta Program been approved 25 by the United States Fish and Wildlife Service? CAPITOL REPORTERS (916) 923-5447 11250 1 MR. THABAULT: The Fish and Wildlife Service doesn't 2 have approval authority necessarily over that project. We 3 have been requested to consult on the Interim South Delta 4 Program. 5 MR. JACKSON: By who? 6 MR. THABAULT: The U.S. Bureau of Reclamation. 7 MR. JACKSON: Who is the decision authority? The Corps? 8 MR. THABAULT: There are two federal authorities. 9 Reclamation by virtue of their connection to the South Delta 10 Water Agency, the barriers and those elements, provide one 11 federal lead. The Corps of Engineers by virtue of their 12 permitting under 404 of the Clean Water Act provides another 13 federal lead. Reclamation is lead for the purposes of 14 Section 7 on this particular issue. 15 MR. JACKSON: Has the application for change in the 404 16 permit been made? 17 MR. THABAULT: Mr. Ford will speak. 18 MR. FORD: I don't believe so. Right now we are still 19 trying to resolve the scope of the project, and that is 20 going to be dictated a lot on what happens with these 21 consultations. Now because of the schedule, it has been 22 integrated a little more into the overall CalFed process. 23 MR. JACKSON: So, as you sit here, the group envisions 24 working something like this: The Corps needs to change its 25 404 permit and CalFed -- and that is in a project specific CAPITOL REPORTERS (916) 923-5447 11251 1 document that is dependent upon CalFed's programmatic 2 decision? 3 MR. THABAULT: They are connected. The Corps of 4 Engineers is integrally involved with discussions on the 5 South Delta pieces of the CalFed program. And they are 6 working with CalFed on mechanisms as how best to permit 7 certain actions under 404. 8 MR. JACKSON: We are ten months away from having a 9 CalFed environmental document for the programmatic 10 decisions? 11 MR. THABAULT: To the best of my knowledge. 12 MR. JACKSON: It would be a couple of years at least 13 before we would be able to move beyond where we are today to 14 Alternative 7 or 8? 15 MR. THABAULT: Well, in terms of full implementation, 16 the need to construct those facilities, just the time 17 associated with that would be at least a couple years. 18 MR. JACKSON: We are all agreed that we couldn't move 19 beyond four until those facilities are constructed; is that 20 correct? 21 MR. THABAULT: I don't think that is necessarily 22 correct. There may be some -- depending on what the outcome 23 of the CalFed decision is, there may be some limited use of 24 the existing facilities that could be implemented prior to 25 constructing additional new facilities, provided all of the CAPITOL REPORTERS (916) 923-5447 11252 1 necessary environmental actions and addressing other legal 2 users, et cetera, which we have been talking are met. There 3 may be opportunities to maximize the use of the flexibility 4 of existing facilities. 5 If Mr. Renning or Mr. Gage have more to add on that. 6 MR. RENNING: Mr. Thabault is correct, that certainly 7 Alternative 5 could be undertaken without new facilities in 8 the South Delta and still be in compliance with the Corps 9 permit. 10 MR. JACKSON: Now, in order to do Alternative 5, 11 however, you would need the Board's approval? 12 MR. RENNING: Yes, we would. 13 MR. JACKSON: That is what you are here to ask about? 14 MR. RENNING: That's right. 15 MR. JACKSON: What is the present demand on the CVP 16 that is unmet by the full operation of Tracy? 17 MR. RENNING: Our present South Delta demands are for 18 about 3.2 million acre-feet. And, typically, we are not 19 able to meet that full demand, even in wet years. Meeting 20 the full demand depends upon a fortuitous set of 21 circumstances. Mainly, that there been high flows on upper 22 San Joaquin River. In all of the other year types there are 23 deficiencies of some magnitude imposed upon our deliveries 24 south of the Delta; and having the joint point of diversion 25 would enable us to make up for some of those deficiencies. CAPITOL REPORTERS (916) 923-5447 11253 1 MR. JACKSON: You indicate that you can meet in years 2 of high flows on the San Joaquin River? 3 MR. RENNING: In years of high flows on the San Joaquin 4 River that enables the exchange contractors' demands to be 5 met on the San Joaquin River; and in doing that we can 6 devote the full capability of Tracy and federal San Luis to 7 meeting our other contracts. 8 MR. JACKSON: So, more flow on the San Joaquin River 9 would make it easier for you to reach -- to meet the 10 contracts that you have for the export facilities? 11 MR. RENNING: Yes, it does. 12 MR. JACKSON: It doesn't matter whether that comes from 13 releases further up on the San Joaquin River or whether that 14 comes from wet water years? 15 MR. RENNING: No. It is just water that comes from 16 above the Mendota Pool. 17 MR. JACKSON: Yes, absolutely. Friant, right? 18 MR. RENNING: Yes. 19 MR. JACKSON: You can either release it from Friant or 20 have high water years and still meet water south of Delta 21 exports? 22 MR. BIRMINGHAM: I am going to object, again, on 23 grounds of relevance. 24 C.O. STUBCHAER: What is the relevance? 25 MR. JACKSON: Mr. Stubchaer, the relevance is that CAPITOL REPORTERS (916) 923-5447 11254 1 they are asking you to change their water rights permits to 2 allow them to export more water essentially out of the 3 Sacramento side of the Delta, and I am trying to examine 4 whether or not there is a way to meet it on the San Joaquin 5 side without doing that. 6 C.O. STUBCHAER: All right. 7 Mr. Birmingham. 8 MR. BIRMINGHAM: I can see some very limited relevance 9 based on that explanation. But I would like to observe that 10 there are a number of parties to this proceeding who are not 11 present this afternoon, principally the Friant unit, and is 12 not present through their counsel today. The questions that 13 Mr. Jackson is asking, I think, are not fairly related to 14 what is in the notice. And I suspect if counsel for the 15 Friant unit knew that Mr. Jackson was going to be asking 16 questions about making releases from Friant in order to 17 satisfy the rights of the exchange contractors, he would be 18 here. 19 C.O. STUBCHAER: I would think that is the risk that 20 parties take by not being here. Because, as we know, our 21 cross-examination, the scope we allow is fairly broad. 22 How much more do you have on the Friant part of it, Mr. 23 Jackson? 24 MR. JACKSON: When I started, I didn't have any on the 25 Friant project, but he brought it up. So, it seemed to me CAPITOL REPORTERS (916) 923-5447 11255 1 to be very useful information, particularly since I am not 2 going to move along to the Sacramento side. 3 MR. RENNING: Before we leave that, Mr. Jackson, it is 4 not the position of the Bureau of Reclamation that we would 5 meet the exchange contractors' demands by releases from 6 Friant. 7 MR. JACKSON: Unless you were ordered to do so by the 8 Board, correct? 9 MR. RENNING: If there are changes to our water rights, 10 that is another matter. 11 MR. JACKSON: You acknowledge that the Board has 12 authority over your water rights? 13 MR. RENNING: Whether the Board or any other party 14 would do such a thing is purely speculative. 15 MR. JACKSON: The question of authority doesn't seem 16 speculative to me. Is your position -- 17 MR. TURNER: Another legal issue. Cite California 18 versus U.S. and go through that whole thing, if you like. 19 C.O. STUBCHAER: I am going to sustain it on the 20 grounds it calls for legal conclusion, Mr. Jackson. 21 MR. JACKSON: Yes, sir. 22 Mr. Renning, you indicate in your conclusion that the 23 DEIR covers the full range of alternatives and addresses 24 their environmental effects. What range of alternatives are 25 you talking about? CAPITOL REPORTERS (916) 923-5447 11256 1 MR. RENNING: Alternatives 2 through 9. 2 MR. JACKSON: Is it your position that those are the 3 only possible alternatives that could be designed to meet 4 the present water rights permits of the Bureau? 5 MR. RENNING: No. These alternatives were designed to 6 look at the alternatives for the joint point of diversion, 7 and I think that it's fair to say these do cover the full 8 range, from no use Alternative 2 up to Alternative 8 which 9 is probably the maximum possible use that could reasonably 10 be assumed for use of joint point of diversion. 11 MR. JACKSON: You indicated that you have -- I think 12 you said you have water rights that would allow you to 13 divert 22,000 cubic feet per second in the Delta? 14 MR. RENNING: Yes, that's right. 15 MR. JACKSON: Where do you get the number 22,000 cubic 16 feet per second? 17 MR. RENNING: That is the sum of the values of those 18 various rights. 19 MR. JACKSON: Are all of those rights in the Delta? 20 MR. RENNING: They are. Some are in the Delta. Some 21 are in the Delta and Sacramento River. There are, of 22 course, other demands that are being met with those rights. 23 MR. JACKSON: I was going to say -- I mean, clearly, 24 there is a lot of other people who have claim on that water, 25 right? CAPITOL REPORTERS (916) 923-5447 11257 1 MR. RENNING: There are other demands that are being 2 met by the CVP with those rights. 3 MR. JACKSON: So what is the increment that you believe 4 you have available in the Delta, the total increment you 5 have available in the Delta, to transfer at Banks? 6 MR. RENNING: I would have to look at the studies or 7 actual operations, but under present conditions I'm 8 guessing, this is just purely a guess, that we are probably 9 using perhaps 12,000 cfs of those 22,000. 10 MR. JACKSON: So, essentially, you believe you have the 11 water rights if you had the capacity to almost double your 12 diversions? 13 MR. RENNING: Yes. 14 MR. JACKSON: What is the maximum you've ever diverted 15 since those water rights went into effect? 16 MR. RENNING: Diverted where? 17 MR. JACKSON: In the Delta. 18 MR. RENNING: On an annual basis? 19 MR. JACKSON: On an annual basis. 20 MR. RENNING: Probably a little bit over 3,000,000 21 acre-feet. 22 MR. JACKSON: Have you used any amount over 3,000,000 23 acre-feet in the last five years? 24 MR. RENNING: From the Delta? 25 MR. JACKSON: Yes. CAPITOL REPORTERS (916) 923-5447 11258 1 MR. RENNING: I am not sure. I know that in at least 2 one of the last five years we did make 100 percent contract 3 demands, and that approaches about 3,000,000. 4 MR. JACKSON: In the last ten years have you used 5 anything over 3,000,000 acre-feet? 6 MR. RENNING: I simply don't have access to those 7 numbers. I can't answer your question. 8 MR. JACKSON: Mr. Renning, in your testimony, on Page 9 6, you indicate that CalFed has talked about the joint point 10 of diversion as a toolbox measure. What does CalFed mean by 11 "toolbox measure"? 12 MR. RENNING: It was not CalFed that that term was 13 brought up in. It was brought up in the stakeholder process 14 that was developed as part of implementation of CVPIA. 15 There were a number of technical subgroups that were 16 convened through that process that were to identify 17 so-called tools by which the impacts of CVPIA could be 18 mitigated. 19 MR. JACKSON: You indicate that that toolbox measures 20 -- those toolbox measures were not detailed enough for you 21 to include any of them in the operation studies for this 22 hearing? 23 MR. RENNING: The use of joint point as a toolbox 24 measure was brought up in kind of a general sense, and we 25 had a number of meetings as a result of toolbox or CAPITOL REPORTERS (916) 923-5447 11259 1 stakeholder process and some meetings that were brought up 2 as part of the CalFed Operations Group process to identify 3 possible ways that the joint point of diversion could be 4 implemented and possible terms and conditions that might be 5 imposed upon the operations of the joint point of 6 diversion. In that process there were some things, some 7 proposals, that were able to be modeled and others that were 8 not. 9 My testimony covers several terms and conditions that 10 we were able to model. I note that the other ones were not 11 able to be modeled. 12 MR. JACKSON: What terms and conditions were you 13 requested -- suggested terms and conditions were you able to 14 model? Is that list in 2A through G? 15 MR. RENNING: Yes, that's right. 16 MR. JACKSON: Now this refers to the No Name Group, 17 which is a subgroup of the CalFed Operations Group? 18 MR. RENNING: That's right. 19 MR. JACKSON: Could you give me the affiliations of the 20 people in the No Name Group? 21 MR. RENNING: The groups that were convened to -- the 22 people that were in the No Name Group that was convened to 23 discuss this included representatives from the Bureau, the 24 Department, Fish and Wildlife, Fish and Game, Environmental 25 Protection Agency, representatives from the water users, CAPITOL REPORTERS (916) 923-5447 11260 1 both the state and federal and from several environmental 2 groups. 3 MR. JACKSON: Now, did these proposals for -- first of 4 all, that is mostly the people here who are making the 5 application for the joint point of diversion, is it not? 6 MR. RENNING: Well, four of the parties that 7 participated in that No Name Group are the parties at this 8 table, yes. 9 MR. JACKSON: Is there a veto process in the No Name 10 Group? 11 MR. RENNING: The No Name Group is a technical 12 discussion group. It is not a group in which there are 13 votes or vetoes or anything like that. 14 MR. JACKSON: So, how would this No Name Group -- 15 first, these proposals for operations criteria that you have 16 listed A through G, are they supported by everyone in the No 17 Name Group? 18 MR. RENNING: These were proposals that were put 19 forward by at least one individual or one party to this. 20 They were not necessarily proposals that everyone felt were 21 implementable or ones that others would necessarily 22 support. They were ones that were proposed for study. 23 MR. JACKSON: Have there been studies done on each of 24 these proposals for operational criteria? 25 MR. RENNING: As part of the No Name Group the only CAPITOL REPORTERS (916) 923-5447 11261 1 ones that we were able to study are those that I have talked 2 about in here. There are some other processes that are 3 going on as we speak regarding what is now referred to as 4 the Environmental Water Account that do involve the joint 5 point of diversion. 6 MR. JACKSON: Does this group support the Board's -- 7 would this group support the Board's conditioning of the 8 operation of joint point of diversion based upon these 9 operation criteria that are listed in your testimony? 10 MR. RENNING: No, I don't think that they could 11 because they haven't been studied. We were unable to study 12 them, and that is the point I was making in my testimony. 13 MR. JACKSON: Then how can you ask the Board to make a 14 decision on operational criteria for the joint point of 15 diversion when none of these are in the EIR? 16 MR. BIRMINGHAM: Objection. Argumentative. 17 C.O. STUBCHAER: I think the first part was 18 argumentative. 19 MR. JACKSON: Let me rephrase it. 20 Are you suggesting that the Board should make -- should 21 do an EIR on the operation criteria for the protection of 22 Delta fisheries prior to their approval of the joint point 23 of diversion? 24 MR. TURNER: I would have to object. Again, I think 25 that Mr. Jackson is totally forgetting what protocol. The CAPITOL REPORTERS (916) 923-5447 11262 1 body that is going to ask to develop the operations plan is 2 not the Board. It is going to be CalFed. And we are simply 3 asking the Board to -- 4 MR. JACKSON: Rubber stamp. 5 C.O. STUBCHAER: Excuse me, let him finish. 6 MR. TURNER: I think we are not -- I think he is, 7 again, misrepresenting the proposal that is being presented 8 to the Board for the Board's adoption. As whether the Board 9 has to do some additional documentation on these conditions, 10 they are not part of the proposal that was submitted. 11 C.O. STUBCHAER: I understand your objection, but I am 12 going to allow the question to be answered, to the best of 13 your ability. 14 MR. RENNING: I would like to answer your question in 15 this way: The purpose of this portion of my testimony was 16 to describe that we made attempt to develop some terms and 17 conditions that might be applied to the operation of joint 18 point of diversion. We were unable to model some of those 19 things because they were not very well defined or that the 20 kinds of proposals, for instance ones regarding incidental 21 take, are impossible to be modeled in the sense that we have 22 the capability to do in the models that we have. 23 I included this testimony in here to make it clear that 24 we made an attempt to look at possible terms and conditions 25 that might be imposed. As I mentioned before, there are CAPITOL REPORTERS (916) 923-5447 11263 1 other processes that are going on now that are making a more 2 focused effort to address possible terms and conditions. 3 And they may, indeed, be successful. That is going to be 4 something that may be included in the CalFed proposal that 5 would ultimately be made to the State Board. 6 MR. JACKSON: These are not irrational proposals for 7 operation criteria, were they? 8 MR. TURNER: Calling for a personal opinion. 9 MR. JACKSON: Yeah, I am calling for personal opinion. 10 MR. RENNING: Well, I think that the first proposal 11 under 2A to limit joint point of diversion use to conditions 12 when Delta outflow is greater than 50,000 cfs, when we did 13 the study on that, and that is included in my testimony, it 14 shows it would seriously affect the joint point of 15 diversion. 16 MR. JACKSON: Yes, it would. But it might protect 17 fish, right? 18 MR. BIRMINGHAM: Objection. Argumentative. 19 C.O. STUBCHAER: Sustained. 20 MR. JACKSON: Is it possible that it would protect 21 fish? 22 MR. BIRMINGHAM: Same objection. 23 C.O. STUBCHAER: Overruled. 24 MR. RENNING: I am not sure that we know enough about 25 how fish act in the Delta to make an assessment of whether CAPITOL REPORTERS (916) 923-5447 11264 1 that condition would be protective of fish or not, any more 2 protective than standards that are already in place. 3 MR. JACKSON: If it were -- it is a possible 4 alternative, however, to the nine that you have suggested, 5 is it not? 6 MR. RENNING: Yes. 7 MR. JACKSON: Have you done any environmental review of 8 whether or not it would be more protective of fish than the 9 other alternatives that you have brought forth? 10 MR. RENNING: The point of the environmental analysis 11 that we have done is that we have shown that the full range 12 of use of the joint point of diversion from no use to that 13 shown in Alternative 8 results in more or less the same 14 environmental impact, and that this particular proposal 15 would fall somewhere in that same range. 16 MR. JACKSON: How did you determine without an 17 environmental review that this particular proposal would 18 fall in the same range as the alternatives you selected? 19 MR. RENNING: Because it falls between zero use and 20 full use under Alternative 8. 21 MR. JACKSON: Which is? 22 MR. RENNING: Approximately 247,000 -- pardon me, 23 347,000 acre-feet of water per year on the average. 24 MR. JACKSON: Now, this particular proposal for an 25 operation criteria for the protection of Delta fisheries has CAPITOL REPORTERS (916) 923-5447 11265 1 to do with flows in cfs. It doesn't have to do with the 2 amount of water removed, does it? 3 MR. RENNING: Well, that's -- 4 MR. JACKSON: Let me withdraw the question and ask it a 5 different way. 6 You could certainly model how much water you could take 7 out of Delta by the use of the joint point of diversion when 8 you only use the joint point of diversion when outflow is 9 greater than 50,000 cfs, couldn't you? 10 MR. RENNING: Yes. We did that. 11 MR. JACKSON: You did that? 12 MR. RENNING: Yes. It is in my testimony. 13 MR. JACKSON: You did not present that to the Board as 14 one of the potential alternatives? 15 MR. RENNING: No. This was done after the documents 16 for the Draft EIR was prepared. 17 MR. JACKSON: What was the result of that model? 18 MR. RENNING: Pardon? 19 MR. JACKSON: What was the result of that model? How 20 much additional fish were protected? 21 MR. RENNING: We didn't do that type of analysis on 22 this. 23 MR. JACKSON: How much additional water quality was 24 present in such situations? 25 MR. RENNING: Water quality in the Delta is very good CAPITOL REPORTERS (916) 923-5447 11266 1 when outflow is 50,000 cfs. 2 MR. JACKSON: Therefore, the quality of the water 3 diverted would be better if the joint point was only used 4 during those conditions, correct? 5 MR. RENNING: Yes. But I don't understand your point. 6 MR. JACKSON: How much additional water did you get 7 when the use of the joint point of diversion was limited to 8 the conditions in 2A in your testimony? 9 MR. RENNING: We didn't get any additional water. We 10 got less water. 11 MR. JACKSON: You got less water than you get 12 presently? 13 MR. RENNING: No. My comparison was made with 14 Alternative 4. We got less water with that condition than 15 we did with Alternative 4. 16 MR. JACKSON: Is one of the screening things for 17 alternatives that they give you more water than Alternative 18 4? 19 MR. BIRMINGHAM: Objection. Argumentative. 20 MR. JACKSON: No. I am asking for a fact. Is that 21 one of screening -- 22 C.O. STUBCHAER: Perhaps the way it was asked, but I 23 think the question on its face is all right. 24 MR. RENNING: I think you are misunderstanding the 25 purpose for which the No Name Group was convened. It was CAPITOL REPORTERS (916) 923-5447 11267 1 not to examine the environmental impacts of the joint point 2 of diversion. It was to look at possible terms and 3 conditions that might be imposed upon use of the joint point 4 of diversion. It was not done as part of the State Board's 5 environmental review process. 6 MR. JACKSON: So that I don't have to go through all of 7 these, you convened the No Name Group for a number of 8 meetings? 9 MR. RENNING: Yes, we had a number of meetings. 10 MR. JACKSON: They came in with these proposals, A 11 through G, as proposals for operational criteria for the 12 protection of Delta fisheries, correct? 13 MR. RENNING: Yes. 14 MR. JACKSON: And you did not submit those to the State 15 Board staff for review? 16 MR. RENNING: No. 17 MR. JACKSON: And did you submit them to anybody for 18 review? 19 MR. RENNING: Several of these were examined and the 20 results were reported to the other members of the No Name 21 Group, but it didn't go any further than that. 22 MR. JACKSON: Why didn't this material get into the 23 State Board's -- these suggestions for operational criteria 24 into the State Board's analysis? 25 MR. RENNING: Because it came at a time that the Draft CAPITOL REPORTERS (916) 923-5447 11268 1 Environmental Impact Report was completed, after it had been 2 completed. 3 MR. JACKSON: Let's talk a little bit about the Draft 4 Environmental Impact Report, and Mr. Robinson, I guess, can 5 help you because he is the one who testified in regard to 6 it. 7 C.O. STUBCHAER: Mr. Jackson, before you get into that, 8 how much longer do you think you have to go? 9 MR. JACKSON: Probably an hour. 10 C.O. STUBCHAER: Let's take our afternoon break now. 11 (Break taken.) 12 C.O. STUBCHAER: Let's come back to order and try to -- 13 Is the panel all here? 14 They are. 15 Mr. Jackson, another hour, you say? 16 MR. JACKSON: I think so, sir. 17 Mr. Renning, you indicated that you were able to study 18 the limited use of the joint point of diversion to periods 19 where Delta outflow exceeds 50,000 cfs. And your testimony 20 on Page 7 indicates that the use of the joint point of 21 diversion falls to 31,000 acre-feet; is that correct? 22 MR. RENNING: Yes, it falls from 218,000 to 31,000 on 23 an annual basis. 24 MR. JACKSON: Then you altered the criteria to 30,000 25 cfs outflow, and that average, average annual use would be CAPITOL REPORTERS (916) 923-5447 11269 1 50,000 acre-feet; is that correct? 2 MR. RENNING: Yes. If that criterion were 30,000, the 3 use of joint point would fall from 218,000 to 50,000 4 acre-feet. 5 MR. JACKSON: That is from your testimony on Page 7? 6 MR. RENNING: Yes. 7 MR. JACKSON: Now, did you examine the affect of 8 Alternative 8, the Vernalis Adaptive Management Plan, in 9 regard to the use of the joint point of diversion? You 10 modeled that as well, right? 11 MR. RENNING: Yes. There was modeling done of 12 Alternative 9. 13 MR. JACKSON: Table XIII-1 on Page XIII-8 of the State 14 Board's Draft Environmental Impact Report in regard to the 15 joint point of diversion indicates that Alternative 9 only 16 results in an increase in CVP deliveries through use of the 17 joint point of 45,000 acre-feet; is that correct? 18 MR. RENNING: Yes, that is right. 19 MR. JACKSON: Why then would the VAMP be acceptable for 20 use with the joint point of diversion when the outflow 21 requirement of 30,000 cfs that gives more water to the joint 22 point of diversion is not acceptable? 23 MR. RENNING: You bring up a good point, Mr. Jackson. 24 This is one -- and I'll be honest with you. This is 25 something that has puzzled me. I am not sure what is going CAPITOL REPORTERS (916) 923-5447 11270 1 on with Alternative 9. 2 I would have to state from looking at this that I am 3 not sure that the modeling for Alternative 9 is correct. 4 MR. JACKSON: What would be the steps, then, to add -- 5 to remodel Alternative 9 and to add the proposed fish 6 protection measure of 30,000 cfs outflow as an alternative? 7 MR. RENNING: Well, that could be done very easily. 8 But the point that I was making was that I believe that 9 Alternative 9 should look very much like Alternative 4 or 10 Alternative 6, and why it doesn't is puzzling to me. 11 MR. JACKSON: In regard to most modeling, it means that 12 it -- it may mean that somewhere there is assumption that is 13 having an effect that was unanticipated? 14 MR. RENNING: Perhaps. But it may also mean that there 15 has been an assumption that is left out. 16 MR. JACKSON: So to fully consider the VAMP in relation 17 to the joint point of diversion, we would need to redo the 18 modeling to determine whether or not this figure is 19 correct? 20 MR. RENNING: It would be prudent to do. 21 MR. JACKSON: Would you suggest that to the Board, 22 then, prior to their approval of the joint point of 23 diversion or the VAMP? 24 MR. RENNING: It would be prudent to reexamine 25 Alternative 9. CAPITOL REPORTERS (916) 923-5447 11271 1 MR. JACKSON: Is it possible that the reason that the 2 VAMP so affects the joint point of diversion is because of 3 the interim operating agreement at New Melones? 4 MR. RENNING: No, I don't think so. 5 MR. JACKSON: Were you present during the testimony 6 that indicated that the San Joaquin River Agreement resulted 7 in less flow on a year-round basis than the water quality 8 plan called for? 9 MR. RENNING: I don't -- 10 MR. GODWIN: Objection. I think that misstates the 11 testimony. I think that there is no evidence that the VAMP 12 resulted in less flow to the water quality than the water 13 quality called for. 14 C.O. STUBCHAER: I do think you need some foundation on 15 this one because we haven't talked about quality or fish 16 flow or what the flow is. 17 MR. JACKSON: Well, see if I can anticipate what you 18 want in terms of foundation. 19 Did you look at Mr. Steiner's modeling for the VAMP? 20 MR. RENNING: No, I did not look specifically at his 21 modeling. 22 MR. JACKSON: If the modeling that Mr. Steiner did 23 indicated that outside of the VAMP flow period from in the 24 spring that there was less water released into the Delta in 25 the other parts of the year, would that be one of the CAPITOL REPORTERS (916) 923-5447 11272 1 reasons that the joint point does not find available water? 2 MR. RENNING: I simply couldn't say. 3 MR. JACKSON: Calling your attention to your last 4 paragraph on Page 7, where you say in brief summary, this 5 group, and I take it that that is the No Name Subgroup of 6 the Ops Group -- is that who you mean? 7 MR. RENNING: Yes, that is right. 8 MR. JACKSON: That in a brief summary, that this group 9 developed several proposals for operations criteria for the 10 joint point of diversion, some of which were able to be 11 studied -- is it true that the goal of these meetings was to 12 develop a consensus proposal to place before the Board in 13 regard to the joint point of diversion and the conditions 14 that the Board should attach to the joint point? 15 MR. RENNING: That was -- in essence, that was the 16 proposal or task that was put before the No Name 17 Group. There was hope that that group could get together 18 and could come up with a proposal for the use of the joint 19 point of diversion that everyone just thought was the 20 greatest thing since sliced bread and take it to the State 21 Board, but that didn't happen. 22 MR. JACKSON: That was because there was disagreement 23 among the group? 24 MR. RENNING: It was not that there was disagreement 25 among the group, but that the various proposals resulted in, CAPITOL REPORTERS (916) 923-5447 11273 1 first of all, things that weren't able to be modeled. And 2 second, had impacts upon the use of the joint point of 3 diversion that were unacceptable to some of the other 4 parties. 5 So there was not a consensus achieved. And I think 6 that this speaks to the process that is going on now, that 7 it has been moved to another part of CalFed where it is 8 being addressed in more depth. And I think Mr. Thabault can 9 speak to that. 10 MR. JACKSON: So, you have a question in front of you 11 Mr. Thabault. I will ask you one. When did it move? 12 MR. THABAULT: I think in response to almost your 13 entire last line of questioning, Mr. Jackson, the type of 14 information that you are asking or asking us to pass 15 judgment on is precisely the information that the extension 16 of No Name, the diversions of the fisheries team, the 17 environmental water account team and all the other various 18 groups are going into very much more detail on specifically 19 what are the parameters that this specific action can 20 operate under. 21 So, it is many of the experts are the same. Many of 22 the experts are new, and we are struggling through that 23 process. 24 MR. JACKSON: This group has the best talent that the 25 California water community can put together on it already, CAPITOL REPORTERS (916) 923-5447 11274 1 does it not? 2 MR. THABAULT: I would say this group has all of the 3 California talent. 4 MR. JACKSON: You could not reach a consensus decision 5 on operational criteria even though you tried? 6 MR. THABAULT: When you speak of this group, it is the 7 No Name Group? 8 MR. JACKSON: I am having trouble following the groups. 9 It is either No Name or Def for the Ops Group or policy 10 group, or it's somebody out there. 11 MR. THABAULT: Mr. Renning makes a point that many of 12 the individuals that are involved now are different than 13 those that were involved in the process that Mr. Renning 14 noted in his testimony. We have not achieved consensus yet; 15 that is true. I am not to say that we cannot achieve 16 consensus, though. 17 MR. JACKSON: Can you say for sure that you will 18 achieve consensus even if the Board were to grant your 19 request and have you -- approve the expansion of the joint 20 point of diversion in the hopes that you guys would come up 21 with something over the next couple of years? 22 MR. THABAULT: I do not want to put a negative spin on 23 this. However, if we cannot achieve consensus or CalFed 24 cannot make a decision, then what we are proposing, joint 25 point would not be implemented over and above Alternative 4. CAPITOL REPORTERS (916) 923-5447 11275 1 That is simply a fact that we are putting on the table. 2 MR. JACKSON: I have been involved in a lot of 3 consensus groups, and consensus is a funny word. 4 Is the Environmental Defense Fund a member of the No 5 Name Group? 6 MR. THABAULT: I believe Mr. Rosecrans has been in and 7 out of that group on occasion, yes. 8 MR. JACKSON: If Mr. Rosecrans says no, does that end 9 the search for consensus? 10 MR. THABAULT: Again, the No Name Group is not a 11 decision-making body. The No Name Group is a group that is 12 put together to foster ideas, develop information and go 13 forward, hopefully with consensus, but if not all of the 14 alternatives that they have developed to a policy making 15 body to assist the policy makers in making a decision. 16 MR. JACKSON: Isn't in the end the policy group -- who 17 do you conceive that the policy group will be under this 18 proposal? 19 MR. THABAULT: I would perceive the policy group much 20 as it exists now with the regional director or directorate 21 of the member agencies as well as whoever Governor Davis 22 appoints and the Secretary of the Interior. 23 MR. JACKSON: What authority do any of those folks have 24 to make a final decision on joint point of diversion? 25 MR. TURNER: I would have to object. I think Mr. CAPITOL REPORTERS (916) 923-5447 11276 1 Jackson is asking for a legal conclusion. He may want to 2 restate in a more factual basis. 3 MR. JACKSON: Have any members of the policy group that 4 you are talking about told you that they have the authority 5 to make a decision on the joint point of diversion? 6 MR. THABAULT: I believe the State Board is a member 7 agency of CalFed, and they have the authority. 8 MR. JACKSON: And so -- 9 C.O. STUBCHAER: Well, well -- the State Board is not a 10 member agency. 11 MR. THABAULT: I will take that back. 12 C.O. STUBCHAER: Mr. Nomellini, your ears must have 13 curled. 14 MR. NOMELLINI: I was writing carefully. You confused 15 the whole thing for me. 16 MR. JACKSON: We had our ultimate dream. 17 MR. THABAULT: I retract that. The CalFed agencies 18 have the ability to formulate a proposal and bring it to the 19 Board, and they certainly have the decision-making 20 authority. 21 MR. JACKSON: CalFed can finish its work, analyze the 22 joint point of diversion, all its ramification, add whatever 23 criteria that they thought were necessary and then bring it 24 to the Board for a decision? 25 MR. THABAULT: That is certainly what we are proposing, CAPITOL REPORTERS (916) 923-5447 11277 1 yes. 2 MR. JACKSON: They can do that after all the 3 environmental documents were prepared for whatever proposal 4 it is that you have folks ultimately decide is the one that 5 makes the most sense? 6 MR. THABAULT: You want to track through that question 7 again, Mr. Jackson? 8 MR. JACKSON: Sure. 9 Since the State Board is, in your opinion, the ultimate 10 authority who will decide on the joint point of diversion, 11 would it be more prudent for you to develop your program, do 12 your EIR, and then come back to the Board and ask them to 13 make a decision? 14 MR. BIRMINGHAM: I am sure Mr. Jackson didn't mean it 15 in this way, but that question is really argumentative. 16 When he phrases the question "in your opinion," that is an 17 argumentative question. 18 C.O. STUBCHAER: Well, there are degrees of being 19 argumentative. I didn't think that was argumentative. If 20 you have an answer. 21 MR. THABAULT: I believe what the panel is suggesting 22 is that when the Board is done with their environmental 23 documentation and are prepared to make a decision on this 24 issue, that they will have sufficient information to make a 25 decision such as we are suggesting and allow the CalFed CAPITOL REPORTERS (916) 923-5447 11278 1 process to refine and revise that operational plan more 2 specifically so that the condition that we are suggesting is 3 met. 4 MR. JACKSON: You are confident, Mr. Thabault, that the 5 range of conditions and alternatives which you are 6 presenting today include all the possible conditions and 7 alternatives that you would ask the State Board to consider? 8 MR. THABAULT: I believe what we are suggesting is that 9 the alternatives that CalFed group is developing and 10 implementing fall within the range of alternatives that the 11 State Board and staff have already done. 12 If it is shown that it is outside and the range has not 13 been encompassed, certainly, we would recommend that 14 supplemental environmental documentation be done. 15 MR. JACKSON: This particular proposal has none of the 16 proposals for operation criteria for protection of Delta 17 fisheries listed in Mr. Renning's testimony on Page 6, 2A 18 through G, does it? 19 MR. THABAULT: I believe the CalFed group is evaluating 20 some of what Mr. Renning has suggested. I am not quite sure 21 if it is all encompassing or not. 22 MR. JACKSON: In your proposal today to the Board for 23 their approval are you suggesting that the use of the joint 24 point of diversion should be dependent upon incidental take 25 levels? CAPITOL REPORTERS (916) 923-5447 11279 1 MR. THABAULT: If incidental take is developed in a 2 manner similar to what it is currently and how it is 3 currently defined, incidental take will certainly be a 4 limiting factor on use of joint point. 5 MR. JACKSON: How does the Board know how you are going 6 to consider incidental take, given the vagueness of your 7 response? 8 MR. CAMPBELL: Objection. Argumentative. 9 C.O. STUBCHAER: Sustained. 10 MR. JACKSON: Should the JPOD be done in a manner as to 11 not concentrate high pumping in a single month -- 12 MR. CAMPBELL: I will also object to this line of 13 questioning in that it has been asked and answered. Mr. 14 Jackson asked whether each of these conditions that were 15 listed on Page 6 of Mr. Renning's testimony have been 16 considered, and I believe the witness responded just a few 17 moments ago that these factors -- some of these factors and 18 other factors are being considered in the CalFed process 19 right now. 20 Now he is taking each one -- after asking the question 21 about these factors as a whole and getting the answers, he's 22 taking them one by one and it is essentially the same 23 question. 24 C.O. STUBCHAER: Mr. Jackson. 25 MR. JACKSON: Yes, Mr. Stubchaer. It is not the same CAPITOL REPORTERS (916) 923-5447 11280 1 question. The one before was: Are these the things that 2 the Ops Group or No Name Group or whoever the group is are 3 considering? Now the question is: Does Mr. Thabault 4 believe the Board should adopt any of these as conditions? 5 C.O. STUBCHAER: Was that your last question? 6 MR. JACKSON: I think so, sir. 7 MR. CAMPBELL: I don't believe that was his last 8 question. 9 C.O. STUBCHAER: I don't remember it as his last 10 question. 11 MR. JACKSON: I will withdraw the question. 12 MR. WHITE: I wonder if I can just try to place in some 13 temporal context the several meetings that occurred where 14 this list that John described were developed? May and June 15 of 1998, I believe at that point we were looking, but 16 without much time ahead of us, to see if we could craft this 17 consensus approach to operating joint points. In order to 18 have that meaningful it had to happen before testimony 19 needed to be submitted for Phase VI on July 13th. 20 I think what we failed to do at that time in May and 21 June was get anything wrapped up prior to that testimony 22 submittal date. That is about the only failure. And the 23 ideas that are embodied in that list, some of them remain as 24 viable components of joint point operating plan, some may 25 not. It was a short-term product that didn't stand for CAPITOL REPORTERS (916) 923-5447 11281 1 anything or turn into anything at the time, but we are 2 building on that. 3 C.O. STUBCHAER: Thank you, Mr. White. 4 Mr. Jackson. 5 MR. JACKSON: Mr. White, since you have jumped in, 6 let's go to your testimony. 7 You indicate in your conclusion on Page 6 and 7 -- on 8 Page 7 that in your opinion -- let me withdraw that. 9 You recount DFG's clear understanding on Page 7 that if 10 the Board authorizes joint points of diversion in a decision 11 based upon this hearing, the joint points, except under the 12 conditions in WR 95-6, would not commence until an 13 acceptable operation plan is developed, evaluated and 14 adopted. Is that correct, that is your position? 15 MR. WHITE: That is correct. That is essentially what 16 the panel has been saying. 17 MR. JACKSON: Well, let's see. 18 You indicate that such a plan is an essential 19 prerequisite to expanded use of joint points of diversion to 20 assure protection of public trust fisheries resources; is 21 that correct? 22 MR. WHITE: That is my testimony. 23 MR. JACKSON: That is DFG's trustee position? 24 MR. WHITE: That is correct. 25 MR. JACKSON: Now, has such a plan, in your opinion, CAPITOL REPORTERS (916) 923-5447 11282 1 been presented up until this point? 2 MR. WHITE: No, sir it has not. 3 MR. JACKSON: Why not, sir? What is missing up to this 4 point? 5 MR. WHITE: Well, it is a work in progress, and what is 6 missing is the final product. We didn't come in here saying 7 we had the plan done. We said we were working on the plan 8 and that it will be done in the near future. 9 MR. JACKSON: And when would that be, sir? 10 MR. WHITE: Our expectation is that it will be done 11 within the time frame of the CalFed record of decision. 12 MR. JACKSON: So by the end of December? 13 MR. WHITE: That is the schedule as it is outlined so 14 far, yes. 15 MR. JACKSON: Now, to your -- you indicate in your 16 testimony that, I believe on Page 3, that you believe that 17 the operation of the joint point of diversion has potential 18 effects on spring-run salmon from the use of joint point in 19 the fall and the winter; is that correct? 20 MR. WHITE: Yes, it is. 21 MR. JACKSON: Why do you believe that to be true, sir? 22 MR. WHITE: Well, as I testified, we rely on 23 relationships between conditions in the Delta and salmon 24 survival. One of those conditions -- several of those 25 conditions being related to export rates. And inasmuch as CAPITOL REPORTERS (916) 923-5447 11283 1 joint points would result in increased exports in those time 2 periods, the expectation is that salmon survival could be 3 adversely affected. 4 So, it is the job of those of us who craft this plan to 5 describe the conditions in such a way that those impacts are 6 avoided. 7 MR. JACKSON: Have you begun that process yet? 8 MR. WHITE: Yes, that process has begun. 9 MR. JACKSON: Have you looked at the effects -- what 10 months does the joint point under Alternative 8 take -- the 11 use of joint point take place? 12 MR. WHITE: I will have to look at the table in the 13 environmental document. 14 MR. JACKSON: Would you please. 15 MR. WHITE: I am looking at Page XIII-10 in Table 16 XIII-3 which indicates joint point use. 17 Basically, for Alternatives 3 through 9 -- did you ask 18 specifically about -- 19 MR. JACKSON: Yes. Alternative 8. 20 MR. WHITE: Joint point use in October, November, 21 December, January, February; small amounts in March, April; 22 and again in the summer, July, August and a minor amount in 23 September. 24 MR. JACKSON: Calling your attention to the joint point 25 use in the months of November, December, January and CAPITOL REPORTERS (916) 923-5447 11284 1 February, are there spring-run salmon yearlings present in 2 the Delta during those months? 3 MR. WHITE: In some years they are present in October. 4 In some years they are present in November. In virtually 5 all years they are present in December and January. 6 MR. JACKSON: Is most of the joint point diversion done 7 during that period of time? 8 MR. WHITE: This modeling result show that some joint 9 point pumping occurs in those months, yes. 10 MR. JACKSON: Does the Draft Environmental Impact 11 Report address the levels of pumping described in those 12 months in the table -- what table is that? 13 MR. WHITE: I am looking at Table XIII-3. 14 MR. JACKSON: In Table XIII-3 in terms of their affect 15 on spring-run salmon. 16 MR. WHITE: My recollection is there are a couple of 17 sentences that talk about the effects of increased exports 18 on spring-run in that time period, and that the Department 19 of Fish and Game's comments on the Draft EIR indicated that 20 we thought a better analysis needed to be done and provided 21 the Board with, as I testified, our status report and some 22 of the basic information that would guide them on that. I 23 haven't seen that analysis, but presumably are working on 24 it. 25 MR. JACKSON: You certainly don't renounce your letter CAPITOL REPORTERS (916) 923-5447 11285 1 of comment, do you, in regard to spring-run? 2 MR. WHITE: No, sir, I do not. 3 MR. JACKSON: You still believe the Board's Draft 4 Environmental Impact Report as it covers Alternative 8 and 5 that level of pumping in the months of November, December, 6 January and February needs to examine potential 7 environmental impacts? 8 MR. WHITE: That is what we said in our comments and, I 9 believe, that is what the Board staff intends to do. 10 MR. JACKSON: When you wrote your letter or your 11 testimony in DFG Exhibit 27, was Dr. Kjelson finished with 12 his study in regard to the relation of exports on the 13 survival of Sacramento River smolts? 14 MR. WHITE: I don't believe Dr. Kjelson is ever going 15 to be finished with that study. If you are referring to had 16 he achieved or obtained the results that he began to 17 describe yesterday, and will describe in a couple weeks, at 18 the point in time where our testimony or our comments were 19 written, he had not obtained those data. Those came from 20 December and January of '98 and '99 respectively. 21 He had the results that were the basis for his 22 testimony as he submitted it in November. 23 MR. JACKSON: Now, you indicate these salmon smolt 24 survival studies have been ongoing over time; is that 25 correct? CAPITOL REPORTERS (916) 923-5447 11286 1 MR. WHITE: Yes, they have. 2 MR. JACKSON: You indicate on Page 3 that the previous 3 salmon smolt studies conducted by the U.S. Fish and Wildlife 4 show that survival of smolt migrating through the Delta from 5 the Sacramento River basin is inversely related to the 6 following factors: one, the portion of the Sacramento flow 7 diverted into the Delta at the Cross Channel; two, water 8 temperature in the Sacramento River; and three, CVP/SWP 9 exports during the migratory period, correct? 10 MR. WHITE: Correct. 11 MR. JACKSON: Are these the main effects, in your 12 opinion, on salmon smolt survival on the Sacramento River as 13 it relates to Delta conditions? 14 MR. WHITE: Those are the parameters that were measured 15 during the experiment that Dr. Kjelson has done that were 16 incorporated into the smolt survival model that he has 17 produced and published. 18 MR. JACKSON: Would the use of joint point of diversion 19 increase the portion of the Sacramento River flow diverted 20 into the Delta? 21 MR. WHITE: I guess, yes, it would. 22 MR. JACKSON: Would the water temperature in the 23 Sacramento River, either in the years of the joint point of 24 diversion or in following years change because of the joint 25 point of diversion? CAPITOL REPORTERS (916) 923-5447 11287 1 MR. WHITE: I have not seen any temperature modeling 2 that is related to joint point alternatives. 3 MR. JACKSON: Let's see whether we need to do that, in 4 your opinion. The joint point of diversion will take some 5 water out of storage in, for instance, Shasta, correct? 6 MR. WHITE: It is possible that it could be. But joint 7 point use could occur without any effect on Shasta as I 8 understand it. 9 MR. JACKSON: But you agree that some of the joint 10 point of diversion will take place in which water is being 11 released from Shasta for that purpose? 12 MR. WHITE: I believe that was Mr. Renning's 13 description. 14 MR. JACKSON: Is that correct, Mr. Renning, that some 15 of the water for the joint point of diversion will come from 16 releases from Shasta? 17 MR. RENNING: Yes, it could be. 18 MR. JACKSON: Is it important that water be retained in 19 Shasta year by year for cold water for the next season for 20 salmon? 21 MR. WHITE: Yes. It is in the National Marine Fishery 22 Service biological opinion requires that the Bureau do 23 that. 24 MR. JACKSON: You indicated that you have not seen any 25 studies of the affect of the joint point of diversion on CAPITOL REPORTERS (916) 923-5447 11288 1 that carryover storage and, therefore, the availability of 2 cold water to keep temperatures under control in the 3 Sacramento? 4 MR. WHITE: I don't think I said that. 5 MR. JACKSON: Have you seen such studies? 6 MR. WHITE: I believe the EIR has figures which depict 7 the changes in carryover storage in the major reservoirs. 8 MR. JACKSON: Do you see your testimony on Page 4, at 9 the top, where it says: 10 However, effects on salmon spawning and 11 rearing habitat and salmon survival in these 12 rural reaches resulting from joint point 13 effects on reservoir storage and temperature 14 of water released were not evaluated. 15 (Reading.) 16 MR. WHITE: Yes, I do. 17 MR. JACKSON: Does that refresh your recollection as to 18 whether the DEIR addresses those issues? 19 MR. WHITE: Well, it has an analysis of effects on 20 carryover, which appear to be on Pages XIII-12 and 13. I 21 don't believe that is an analysis of temperature effects. I 22 believe our -- I believe our EIR comments address that as 23 well. 24 MR. JACKSON: I believe they did. 25 Do you believe it is -- you still believe, as you did CAPITOL REPORTERS (916) 923-5447 11289 1 in your comments, that it is important that the joint point 2 effects on reservoir storage and temperature of water 3 released from the reservoirs be evaluated? 4 MR. WHITE: Certainly. 5 MR. JACKSON: Now, spring-run are particularly 6 peculiar, I guess I can say, subject to temperatures because 7 of their summering over process; is that right? 8 MR. WHITE: It is true that in some spring-run streams 9 juveniles remain in the natal stream over the summer and 10 temperature is important to them. And in the places where 11 they do that temperatures are apparently suitable. 12 MR. JACKSON: The spring-run in the stated nature 13 generally were high in the river systems in terms of 14 spawning and rearing beyond the location in general where 15 the dams now block the stream courses, weren't they? 16 MR. WHITE: It is true that spring-run occurred in the 17 reaches of some streams that are now blocked by dams. 18 Spring-run presently occur in streams on which no major dams 19 exist: Mill Creek and Deer Creek are examples. And they are 20 not confined to necessarily high elevations stream. They 21 also occur in Butte Creek which you would characterize as 22 spring-run habitat as not being high elevation. 23 MR. JACKSON: The streams that you just mentioned, 24 other than Big Chico, Mill and Deer, are the remaining part 25 of the habitat in the Sacramento-San Joaquin system, aren't CAPITOL REPORTERS (916) 923-5447 11290 1 they? 2 MR. WHITE: All of those streams have spring-run 3 populations currently. 4 MR. JACKSON: Some of the rivers do as well? 5 MR. WHITE: There is habitat available for fish 6 exhibiting the spring-run life history characteristics below 7 some of the other dams. 8 MR. JACKSON: Now, so it is fair to say that water 9 temperature below the dams is going to be critical to 10 reestablishing or to doubling the population of naturally 11 reproducing spring-run in the future, isn't it? 12 MR. CAMPBELL: Objection. Compound. 13 MR. WHITE: Rephrase that. 14 MR. JACKSON: Is water temperature below dams important 15 to the future of the spring-run in the Sacramento-San 16 Joaquin drainage? 17 MR. WHITE: I would say the ability of spring-run to 18 persist below dams is dependent on having suitable 19 temperatures for adults to hold through the summer. That 20 would be the primary requirement. 21 MR. JACKSON: And for juveniles to rear? 22 MR. WHITE: And for juveniles to rear. I think that is 23 correct. 24 MR. JACKSON: Calling your attention to your testimony 25 on Page 5, on the second full paragraph, beginning with "the CAPITOL REPORTERS (916) 923-5447 11291 1 exposure," you indicated in the second sentence that: 2 Exports of water from the Delta at times 3 produce net upstream reverse flows in some 4 western and southern Delta channels. (Reading.) 5 Why is that important, sir, in relation to salmon? 6 MR. WHITE: I think it is important to the extent that 7 juvenile salmon rely on the direction of the movement of 8 water as a cue to orient them on the migration downstream 9 towards the ocean. 10 MR. JACKSON: Does additional export authorized by the 11 joint point of diversion have a tendency to increase reverse 12 flows in Delta channels? 13 MR. WHITE: It would absolutely depend on the condition 14 that existed in the absence of joint point. If there were 15 no reverse, if the outflow were large, joint point would not 16 have any ability to cause those reverse flows. The flows 17 were already negative, the joint point use could exacerbate 18 those reverse flows. 19 MR. JACKSON: Was that one of the reasons that there 20 was a suggestion by members of the No Name Group that there 21 be an outflow limitation of 30,000 or 50,000 cfs in order to 22 prevent salmon mortality? 23 MR. WHITE: I think it is safe to say those two ideas 24 are related. 25 MR. JACKSON: In your conclusion on Page 6 you indicate CAPITOL REPORTERS (916) 923-5447 11292 1 that, in the last sentence, that, based on the current level 2 of our collective knowledge, it is your opinion that 3 operation criteria to limit impacts to juvenile salmon in 4 the Delta in fall and early winter are needed and that any 5 acceptable CalFed operations plan must address this need in 6 some way. 7 Is that your opinion today? 8 MR. WHITE: Yes, it is. 9 MR. JACKSON: Does that also apply to the Board, if the 10 Board's going to make the decision in regard to the criteria 11 that are needed before you can use the joint point of 12 diversion? 13 MR. WHITE: I am sorry, I don't understand. Does what 14 apply to the Board? 15 MR. JACKSON: Your opinion that we need operations 16 criteria to limit impacts to juvenile salmon in the Delta in 17 fall and early winter. Is it -- you have indicated that 18 your opinion is that the CalFed must address this need in 19 some way. 20 Would you also believe that the Board must address this 21 need in some way? 22 MR. WHITE: I believe that is correct. And that if I 23 go to CalFed and do my job, my hope is that we bring a plan 24 back to the Board that does address that need and that the 25 Board could find that satisfactory. CAPITOL REPORTERS (916) 923-5447 11293 1 MR. JACKSON: Is there any reason why the Board 2 shouldn't be offered the operations criteria prior to making 3 that decision to use the joint point of diversion? 4 MR. WHITE: I think before a prescribed use of joint 5 point of diversion will occur the Board will have that 6 information and will be able to judge it. 7 MR. JACKSON: Mr. Renning, I have just a couple more 8 questions, and then I am through, Mr. Stubchaer. 9 Will there be any occasions when the joint point of 10 diversion is operating in which deliveries to CVP 11 contractors north of the Delta will be less than 100 12 percent, according to your modeling? 13 MR. RENNING: Potentially that could occur. 14 MR. JACKSON: If the joint point were not approved, 15 then those impacts to CVP contractors north of the Delta 16 would not occur; is that true? 17 MR. RENNING: I don't think that is right. I think 18 that the deliveries that we would make to north of the 19 Delta contractors would be the same in absence of the use of 20 joint point or with it. 21 MR. JACKSON: Why would the -- you only have so much 22 water available in any water year for all of your various 23 requirements, correct? 24 MR. RENNING: Yes. 25 MR. JACKSON: It is a finite number, correct? CAPITOL REPORTERS (916) 923-5447 11294 1 MR. RENNING: Yes. So to speak. 2 MR. JACKSON: How then can you increase exports to your 3 south of Delta contractors without either taking the water 4 from the environment or your contractors north of the 5 Delta? 6 MR. BIRMINGHAM: Object to the question on the grounds 7 of relevance. Whether or not the -- how the Bureau of 8 Reclamation administers its contracts is not relevant to the 9 question of whether the joint point of diversion should be 10 approved. 11 C.O. STUBCHAER: Mr. Atlas. 12 MR. ATLAS: The question before the Board is are there 13 some conditions that ought to be placed on the application 14 for joint point of diversion. If the Board makes a legal 15 determination that it has no authority to approve some 16 offered condition, that is one thing. But we are not there 17 yet. 18 MR. BIRMINGHAM: I think, in fact, the State Board has 19 made that determination many times, most recently in Water 20 Rights Decision 98-9, where the State Board correctly 21 pointed out that it could not dictate to the Bureau of 22 Reclamation how it would operate New Melones Reservoir in 23 order to satisfy the contract that the Bureau has for water 24 deliveries out of that reservoir. 25 C.O. STUBCHAER: I am going to rule. The question may CAPITOL REPORTERS (916) 923-5447 11295 1 be answered, but your question could be construed as a 2 little vague read by itself, take water away from 3 contractors due to the joint point of diversion. I assume 4 that is explicit in your question. 5 MR. JACKSON: Yes. The other difference which I would 6 like to make clear for the record in what Mr. Birmingham 7 just said is that at the point that the question was 8 considered in the previous instance the Bureau was not here 9 asking for an expansion of its points of diversion or the 10 amount of water it was going to take. 11 C.O. STUBCHAER: That is irrelevant. You can proceed 12 with the question. 13 MR. JACKSON: Mr. Renning, could the combination of 14 joint point of diversions and the National Marine Fisheries 15 Service temperature control criteria mean less water in some 16 years for Sacramento Valley CVP contractors? 17 MR. RENNING: I don't think the combination of the two 18 would result in less water for CVP contractors in the 19 Sacramento Valley. I think the only thing that would affect 20 them would be the allocation that is based on the basic 21 water supply and our need to maintain cold water storage in 22 Shasta Reservoir. 23 MR. JACKSON: Could the combination of joint point of 24 diversion and NMFS temperature control criteria mean that 25 there would be less water available to increase current CVP CAPITOL REPORTERS (916) 923-5447 11296 1 contract supplies for Sacramento Valley contractors? 2 MR. RENNING: To increase CVP supplies? 3 MR. JACKSON: Right. 4 MR. RENNING: I don't understand your question. 5 MR. JACKSON: They don't always get a hundred percent, 6 do they? 7 MR. RENNING: That's right. 8 MR. JACKSON: So, if the joint point of diversion was 9 not in effect, would they be more likely to get 100 percent? 10 MR. RENNING: I don't think so. 11 MR. JACKSON: Have you done any modeling that supports 12 that position? 13 MR. RENNING: No, I have not done any modeling to 14 examine that. 15 MR. JACKSON: Has there been any analysis made of the 16 affect of joint point diversions on the likelihood of 17 meeting Central Valley Project contract supplies in the 18 Sacramento Valley? 19 MR. RENNING: I am sorry, I don't understand your 20 question. 21 MR. JACKSON: Have you done any analysis, other than 22 modeling, to determine whether or not there would be a 23 greater likelihood of full contract deliveries in the 24 Sacramento Valley without joint point of diversion? 25 MR. RENNING: We haven't done any modeling, but I can CAPITOL REPORTERS (916) 923-5447 11297 1 tell you that from the water allocation process that we go 2 through each year whether or not we have joint point of 3 diversion that would not affect what the allocation would be 4 to north of Delta contractors. 5 MR. JACKSON: Joint point of diversion increases the 6 amount of water you divert, doesn't it? 7 MR. RENNING: It allows us to divert more water from 8 the Delta than we would otherwise be able to. 9 MR. JACKSON: In some circumstances requires you to 10 take that water out of storage because the Delta is in 11 balanced condition? 12 MR. RENNING: That's right. But under most 13 circumstances I believe that that would be water that we 14 would otherwise be releasing. 15 MR. JACKSON: When the Delta is in balanced condition, 16 you would be required to release that water for what 17 purpose? 18 MR. RENNING: To meet temperature control in the 19 Sacramento River. 20 MR. JACKSON: How often do you have to release 21 additional water for temperature control when the Delta is 22 in balanced conditions? 23 MR. RENNING: Most of the times that we are in a 24 situation where we are operating to a temperature standard 25 on the Sacramento River, we are usually in balanced CAPITOL REPORTERS (916) 923-5447 11298 1 conditions in the Delta. 2 MR. JACKSON: And that doesn't -- does it ever occur in 3 the months of November, December, January and February? 4 MR. RENNING: No. Those are months that we have no 5 problems at all meeting temperature. I don't even think 6 there are temperature criteria for those months in the Upper 7 Sacramento River. 8 MR. JACKSON: Thank you. 9 No further questions. 10 C.O. STUBCHAER: Thank you, Mr. Jackson. Mr. 11 Nomellini, Jr. 12 MR. TURNER: Mr. Stubchaer, just a moment. We had 13 asked -- I had asked before Mr. Jackson started his 14 cross-examination if he had any temperature questions that 15 Bureau employee Jack Rowell was going to have to hang around 16 for. If he is now done, may I allow Jack to return to his 17 other chores? 18 C.O. STUBCHAER: Are there any objections? 19 Seeing none, yes. 20 MR. TURNER: Thank you very much. 21 C.O. STUBCHAER: Thank you. I hope you enjoyed the 22 scene from back there. 23 Mr. Nomellini, I have a bit of sympathy for you because 24 when you come mid course in the cross-examination I am sure 25 many of the questions you were going to ask have already CAPITOL REPORTERS (916) 923-5447 11299 1 been asked and answered. Makes it difficult. 2 MR. NOMELLINI, JR.: That is true. I am afraid, and I 3 hope it doesn't come out unorganized as it appears on my 4 notes, but I crossed out a lot of stuff. 5 ---oOo--- 6 CROSS-EXAMINATION OF DEPARTMENT OF THE INTERIOR, 7 DEPARTMENT OF WATER RESOURCES AND 8 DEPARTMENT OF FISH AND GAME 9 BY CENTRAL DELTA PARTIES 10 BY MR. NOMELLINI, JR. 11 MR. NOMELLINI, JR.: Good afternoon, Chairman 12 Stubchaer, Members of the Board, staff, panel. My name is 13 Dante John Nomellini, Jr. I am here on behalf of Central 14 Delta parties. 15 I want to start out with a few questions of trying to 16 clarify what this proposal -- actually what you're trying to 17 ask the Board to do for you. And there has been some 18 discussion about it, but I want to start with just physical 19 capacity feature. 20 According to the proposal, it appears you're asking the 21 Board to authorize interchangeable use of export facilities 22 up to the ability of the project's physical capacities. 23 Maybe I will get that confirmed. 24 Mr. Renning, is that true? 25 MR. RENNING: Yes. CAPITOL REPORTERS (916) 923-5447 11300 1 MR. NOMELLINI, JR.: What I would like to know is, what 2 exactly is the physical capacity of both of the projects? 3 And I would like to start, break that down. Are we talking 4 the physical capacity as of today, in the existing 5 facilities as of today or what? 6 MR. RENNING: Well, I can speak for the Central Valley 7 Project. We would like the physical capacity of our 8 facilities at 4,600 cfs, but they are limited other times of 9 the year by some of the standards and by the Endangered 10 Species Act. 11 And we would like to have available to us under certain 12 circumstances capacity at the state plant up to whatever 13 capacity they might otherwise be able to use. And I think 14 Mr. Gage can speak to what the capacity of the state plant 15 is. 16 MR. NOMELLINI, JR.: To stick with you on the CVP, when 17 you guys are asking for the ability to use export facilities 18 up to the physical capacities, you are talking the raw 19 physical capacities, notwithstanding any environmental 20 limitations, et cetera; is that correct? 21 MR. RENNING: To the extent that they can be used and 22 still be in compliance with all of the applicable 23 regulations that are in force at that time. 24 MR. NOMELLINI, JR.: Let me try to clarify further. I 25 am still confused. So let's take today. CAPITOL REPORTERS (916) 923-5447 11301 1 What is the physical capacity of the CVP as we sit here 2 today? 3 MR. RENNING: 4,600 cfs. 4 MR. NOMELLINI, JR.: You are saying because there is no 5 environmental limitations or anything imposed on it today? 6 MR. RENNING: As of today, with the hydrologic 7 conditions that exist in the Delta, we could pump 4,600 cfs 8 and been in compliance with all terms and conditions. 9 MR. NOMELLINI, JR.: What I am trying to distinguish, 10 there is a difference in my mind of the physical capacity, 11 how much the canal, the Delta-Mendota Canal, can physically 12 channel versus, you know, the environmental constraints, 13 like the permitting capacity. I want to make a distinction 14 between the physical, actual -- I don't know how to say it, 15 but the physical capacity versus the permitted and allowable 16 capacity. 17 So, if we are talking about physical capacity, you said 18 earlier that is 4,600, just pure physical capacity, CVP? 19 MR. RENNING: Yes. That is the capacity of the Tracy 20 pumping plant at the upper reaches of the Delta-Mendota 21 Canal. 22 MR. NOMELLINI, JR.: Does the canal -- what is the 23 capacity of the Delta-Mendota Canal at the mouth of the 24 pumps, for example? 25 MR. RENNING: 4,600 cfs. CAPITOL REPORTERS (916) 923-5447 11302 1 MR. NOMELLINI, JR.: So if you go 4,700, it overflows? 2 MR. RENNING: Yes, that would happen. There are times 3 at which, because of combinations of tidal levels and, if 4 you will, space in the first reach of Delta-Mendota Canal, 5 that we can pump higher than 4,600 cfs for very short 6 periods of time. But that is a very rare occurrence. 7 MR. NOMELLINI, JR.: You said the physical capacity is 8 4,600, but are there other limitations such as -- I know 9 there are different requirements of how much the CVP can 10 pump into the San Luis. Does that requirement of getting 11 water into San Luis somehow limit what can be physically 12 exported? Do you understand that? 13 MR. RENNING: As we go further down the canal, there 14 are -- the canal becomes smaller and smaller. And at the 15 point of the canal where we pump from the canal into the 16 O'Neill Forebay, the capacity is approximately 4,200 cfs. 17 And so during the wintertime periods, when demands are low 18 on the CVP system and we are in the process of filling San 19 Luis Reservoir, we can only pump 4,200 cfs into San Luis 20 Reservoir. 21 And that is one of the reasons that we want to have the 22 ability to use the joint point of diversion because at those 23 times we could be using available capacity at the Banks 24 pumping plant to pump CVP water into storage at San Luis. 25 MR. NOMELLINI, JR.: I don't want to jump around too CAPITOL REPORTERS (916) 923-5447 11303 1 much. I am trying to figure out what this baseline is going 2 to be on a day-to-day basis. Maybe I should ask you: 3 Is the baseline -- is 4,600 cubic feet per second the 4 baseline from which you are going to say, if an 5 environmental restriction limits you to an amount below 46, 6 you are going to say we have the ability to make up that 7 difference? Do you follow that? 8 MR. RENNING: If we're talking about the makeup of 9 capacity lost because of fishery action, you would have to 10 look at exactly what the situation was at the time that the 11 fishery action was taking place. 12 For example, just this year when we have used the joint 13 point of diversion to replace capacity that was lost for the 14 fishery test in January, we determined that the pumping 15 level that we would otherwise be at in the absence of the 16 fishery test would have been approximately 4,300 cfs. So, 17 our request for replacement capacity or for use of the joint 18 point of diversion was for the difference between what we 19 were actually pumping and 4,300 cfs. 20 MR. NOMELLINI, JR.: So, is it safe to say that the 21 physical capacity that you are asking the Board to provide 22 or allow you to export up to, that physical capacity will 23 fluctuate on a daily basis, but it will be a moving target? 24 It won't be a flat 4,600 cubic feet per second every day of 25 the year? CAPITOL REPORTERS (916) 923-5447 11304 1 MR. RENNING: I think that point is really only 2 relevant if you are talking about what the makeup would be 3 under the 98-9 concept. But our request goes to a much 4 larger, more encompassing request to be able to use the 5 Banks pumping plant at values where the combined capacity of 6 Tracy and CVP Banks would be substantially above 4,600 cfs. 7 MR. NOMELLINI, JR.: I think I understand what you are 8 saying. But isn't it true when you determine how much you 9 are allowed to make up you need to know how much you were 10 physically able to deliver and then find the difference 11 between that amount and whatever fishery restriction chipped 12 away at that amount? 13 MR. RENNING: Yes, that would be what you would have to 14 do if you were using the joint point under the 98-9 15 concept. 16 MR. NOMELLINI, JR.: That is where I lose you. Why is 17 that, what I am saying, only refer or relevant or make sense 18 when you are looking at the 98-9 as opposed to what your 19 proposal is? 20 MR. RENNING: Because under the 98-9 concept, the only 21 capacity that we are permitted to request be replaced is 22 that what we would otherwise be at in the absence of a 23 fishery action. In the example that I spoke about, that 24 would be 4,300 cfs, not 4,600 cfs. 25 MR. NOMELLINI, JR.: I think I might have followed CAPITOL REPORTERS (916) 923-5447 11305 1 that. According to the proposal you are presenting to the 2 Board today, I don't understand how that is different, the 3 4,300 cubic feet per second and 46. 4 MR. RENNING: The proposal that we are making is that 5 initially we would be allowed to operate as shown in 6 Alternative 4, that we be permitted to use the joint point 7 of diversion to meet the existing contracts that we have and 8 to make up for fishery actions that cause us to lose 9 capacity. 10 MR. NOMELLINI, JR.: I was hoping to get in a bunch of 11 other stuff related to what will -- 12 MR. TURNER: I don't think he finished his answer. 13 MR. RENNING: I am sorry, I am finished. 14 MR. NOMELLINI, JR.: What I was just trying to get at, 15 maybe I will say it again, if it's been already explored, I 16 will stop. But I want to know when you determine how much 17 you're able to make up based on your proposal you are 18 presenting today to this Board, when you make that 19 determination, say we can make up this amount of water, I 20 want to know how you come to that calculation. 21 MR. RENNING: How we determine how much we would make 22 up -- first of all, you have to make a determination of how 23 much capacity was lost, and that is what happened in January 24 of this year. We lost capacity. And we made up that 25 capacity with some pumping that we undertook in February. CAPITOL REPORTERS (916) 923-5447 11306 1 And the values that we made that capacity up at were simply 2 some arbitrary values to pump a particular amount of water a 3 particular length of time. 4 MR. NOMELLINI, JR.: I am going to move to the state. 5 Not sure I totally have that, but I am going to ask other 6 questions and hopefully clarify that. 7 For the state project, I am not sure who is -- 8 MR. GAGE: Larry Gage. 9 MR. NOMELLINI, JR.: Could you tell me what is the 10 physical capacity as we sit here today of the State Water 11 Project? 12 MR. GAGE: Banks pumping plant is 11 units. They total 13 approximately 10,300 cfs. It does vary a little bit, 14 depending on tides. 15 MR. NOMELLINI, JR.: I apologize, I missed the first 16 thing you said, 11 -- 17 MR. GAGE: Eleven pumping units. That combined total 18 roughly 10,300 cfs. The canal downstream from that can 19 convey 11,000 cfs into O'Neill Forebay. 20 MR. NOMELLINI, JR.: When you say or when you are 21 asking the Board to allow us to pump the physical capacity 22 of your project, you are including 11 pumps? 23 MR. GAGE: Yes. Ultimately, when Alternative 7 or 8 24 were implemented by actions that CalFed had come up with, 25 that would be the case. CAPITOL REPORTERS (916) 923-5447 11307 1 MR. NOMELLINI, JR.: Isn't it true you have a few other 2 pumps on hand? 3 MR. GAGE: A few other pumps? No. 4 MR. NOMELLINI, JR.: Eleven is the total amount of 5 pumps? 6 MR. GAGE: Eleven is how many will fit in the building, 7 the hole in the ground. 8 MR. NOMELLINI, JR.: Currently are you not allowed to 9 use all 11 pumps? 10 MR. GAGE: We're restricted by the Corps of Engineers' 11 permit to only pump in 6,400 cfs, except during periods when 12 the San Joaquin River is flowing above a thousand cfs 13 between December 15 and March 15. It gets a little 14 complicated. 15 MR. NOMELLINI, JR.: If I can cut in there, the State 16 Board's EIR specifies what that Corps permit allows. And I 17 actually saw a discrepancy between Mr. Renning's figures and 18 the State Board's EIR. This would be a good opportunity to 19 clarify that. Is it true that the Army Corps of Engineers' 20 permit, which is Notice 5820A -- is that the right permit? 21 MR. GAGE: I believe that is the right number. 22 MR. NOMELLINI, JR.: Is it true that that permit limits 23 the State Water Project to 6,680 cubic feet per second from 24 April 15th to December 14th? 25 MR. GAGE: I don't have it in front of me. My CAPITOL REPORTERS (916) 923-5447 11308 1 recollection is the 6,686 cfs, which includes 286 cfs for 2 Byron Bethany Irrigation District. 3 MR. NOMELLINI, JR.: How about the same permit, does 4 this sound right, that from December 15th to March 15th the 5 State Water Project can pump up to maximum of 8,500 cubic 6 feet per second? 7 MR. GAGE: No, that is not correct. 8 MR. NOMELLINI, JR.: The State Board EIR goes, in 9 parenthesis I believe, and says: 10 The State Water Project Delta diversion can 11 be increased by one-third the San Joaquin 12 River flow during this period when the flow 13 exceeds 1,000 cubic feet per second, but that 14 it cannot go beyond 8,500 cubic feet per 15 second. (Reading.) 16 MR. GAGE: Just one moment please. 17 (Discussion held off the record.) 18 MR. GAGE: I believe the 8,500 cfs may be something 19 that was used as an approximation in the modeling runs. To 20 my knowledge, it does not exist in the Corps permit. It 21 simply is 6,686 plus one-third of the Vernalis flow during 22 that three-month period. 23 MR. NOMELLINI, JR.: Thanks, I appreciate it. I am 24 trying to figure out what is the correct version. 25 Still talking about that Army Corps permit, Mr. CAPITOL REPORTERS (916) 923-5447 11309 1 Renning, if I could direct you to your Exhibit Number 10, 2 the first page, second paragraph, you state that the -- I 3 will let you find it. At the bottom of the second paragraph 4 these numbers are a little different. I want to just 5 clarify that. 6 You say that down towards the bottom, third sentence 7 from the last, I believe: 8 The State Water Project Banks pumping plant 9 has a capacity of 6,600 cubic feet per second 10 or 10,400 cubic feet per second under certain 11 permitted conditions. (Reading.) 12 Both these numbers are different from the numbers I 13 read from the State Board's Draft EIR. Do you have any 14 comment on that or can you clarify that? 15 I can refresh your recollection that the State Board's 16 EIR says the Army Corps permit limits the State Water 17 Project to 6,680 cubic feet per second. And I am just 18 wondering where you got the 6,600, not that that is a big -- 19 MR. RENNING: The difference is just that I didn't 20 precisely take that number out of the Corps permit. It is 21 an approximate number that I think we widely refer to as 22 what the capacity of what the state plant is. 23 MR. NOMELLINI, JR.: What about the 10,400 cubic feet 24 per second figure you have in your exhibit? I don't find 25 that in the Draft EIR. Where is that number coming from? CAPITOL REPORTERS (916) 923-5447 11310 1 MR. RENNING: That is maximum capacity of the state 2 plants. And I may have been mistaken in using this number, 3 but I was under the impression that if particular conditions 4 existed that the Corps permit would allow diversions of that 5 magnitude. 6 MR. GAGE: I believe the -- my memory is that the 7 number is 10,350. And it is not a limitation actually on 8 Banks pumping plant. It is a limitation on intake of water 9 from the Delta into Clifton Court Forebay. The pumps could 10 be running at that rate or less and still be meeting that. 11 MR. NOMELLINI, JR.: Going back a little bit when I 12 asked you what is the State Water Project's physical 13 capacity to export water, I believe you said 10,300 cubic 14 feet per second. Is it now 10,350, or could you clarify 15 that, please? 16 MR. GAGE: It is actually whatever the physical units 17 put out. I mean they were speced and designed. I think the 18 initial ones were 1,067 cfs. When you contract for someone 19 to build that, you do it on a performance bond. And so they 20 have to meet those requirements at certain deficiencies and 21 certain discharge rates. They typically come in a little 22 bigger, 1,075 or 1,080 or something. So, it varies. And 23 above that it depends on what the elevation of water is in 24 Clifton Court Forebay. 25 Because as that goes down, then the discharge goes CAPITOL REPORTERS (916) 923-5447 11311 1 down. 2 MR. NOMELLINI: Getting back to global reasons why this 3 is important, why it seems important, is when you make the 4 calculation of how much you're allowed to make up at some 5 other time, is it true that you're looking at what your 6 physical capacity would have been before the restriction? 7 MR. GAGE: That could be the limit. It's generally 8 not. Because in most cases at the times where you're doing 9 fishery actions that impact our exports, we're not at 10 maximum plant because of water supply limitations for one 11 reason or another. So you do, indeed, have to look at what 12 is available in the Delta for export before you cut back for 13 fisheries. 14 MR. NOMELLINI, JR.: Okay. Keep on going. 15 C.O. BROWN: Have another six or seven minutes, Mr. 16 Nomellini. 17 MR. NOMELLINI, JR.: It's hard to do this without 18 jumping around. 19 C.O. BROWN: We have another six or seven minutes. 20 Might as well go ahead and use it. 21 MR. NOMELLINI: Is everyone sleeping? 22 C.O. BROWN: No, you are doing fine. 23 MR. NOMELLINI, JR.: I am tempted to jump around, but 24 let me stick with this. I want to know what the physical 25 capacity you are asking for. I want to compare that with CAPITOL REPORTERS (916) 923-5447 11312 1 what your current water right permits allow you to do and 2 see if there is differences among the two. 3 If I could start with the CVP. Mr. Renning, what do 4 your current State Board water right applications allow you 5 to export from the Delta? 6 MR. RENNING: It's our view that our water rights if we 7 have the points of diversions, we could export at rates far 8 above 4,600 cfs. But at present the only thing -- the 9 values that cover our exports from the Delta are the 4,600 10 cfs at Tracy and the amounts that we have, that in our view 11 we have been granted for existing contracts to use at Banks 12 pumping plant and the use of the joint point of diversion or 13 Banks pumping plant under 98-9. 14 MR. NOMELLINI, JR.: I know there was some discussion 15 earlier about the so-called ambiguity of the 4,600, but let 16 me clarify. Is it your testimony that -- well, actually, if 17 I could back up. 18 Earlier you said you threw out a 22,000 cubic feet per 19 second figure. Is that a ballpark figure of what you think 20 the CVP has rights to export from the Delta regardless of 21 how it is exported? 22 MR. RENNING: No. What the 22,000 cfs figure is is the 23 total amount of diversion right that Central Valley Project 24 has under its various rights for diversions from the Delta 25 and from the Sacramento River. CAPITOL REPORTERS (916) 923-5447 11313 1 MR. NOMELLINI, JR.: By diversions from the Sacramento 2 River, you mean diversions from the Delta but as water that 3 came from the Sacramento? 4 MR. RENNING: No. That figure of 22,000 cfs would 5 cover all the diversions that we are making, including the 6 diversions that we are making to Tehama-Colusa Canal on the 7 Sacramento River. 8 MR. NOMELLINI, JR.: If I could just kind of zero in, 9 what do you think your current State Board permits allow you 10 to export from the Delta down to the west and south? 11 MR. RENNING: The principal limitation that we have is 12 that we don't have use of any other diversion points, that 13 we don't have specific permission to use any other diversion 14 points except what are fairly limited, what is fairly 15 limited use to use Banks. 16 The whole purpose of the petition that we have put 17 before the Board and for this hearing is to have the Board 18 authorize us to use Banks pumping plant in the manner that 19 is shown in the various alternatives. 20 MR. NOMELLINI, JR.: So, you think you currently have 21 the right to export in excess of 4,600 from the Delta? 22 MR. RENNING: Yes. 23 MR. NOMELLINI, JR.: You don't have a number to 24 quantify how much you think you are allowed to export? 25 MR. RENNING: Well, I suppose that you could go through CAPITOL REPORTERS (916) 923-5447 11314 1 on a right-by-right basis and figure out what was happening 2 at any particular time and come up with a figure. But I 3 think that that figure is not -- would not be realistic in 4 the sense that we would want to use that whole quantity. I 5 think that the values that we would intend to use are those 6 that are shown in the exhibits in my testimony. 7 MR. NOMELLINI, JR.: I just lost my train of thought. 8 Is this a good time? 9 C.O. BROWN: Very good time to break, Mr. Nomellini. 10 MR. NOMELLINI: Thank you very much. 11 C.O. BROWN: If there is no further questions, we stand 12 adjourned until 9:00 tomorrow morning. 13 (Hearing adjourned at 4:00 p.m.) 14 ---oOo--- 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 11315 1 REPORTER'S CERTIFICATE 2 3 4 STATE OF CALIFORNIA ) ) ss. 5 COUNTY OF SACRAMENTO ) 6 7 8 I, ESTHER F. WIATRE, certify that I was the 9 official Court Reporter for the proceedings named herein, 10 and that as such reporter, I reported in verbatim shorthand 11 writing those proceedings; 12 That I thereafter caused my shorthand writing to be 13 reduced to typewriting, and the pages numbered 11118 through 14 11315 herein constitute a complete, true and correct record 15 of the proceedings. 16 17 IN WITNESS WHEREOF, I have subscribed this certificate 18 at Sacramento, California, on this 18th day of March 1999. 19 20 21 22 23 ______________________________ ESTHER F. WIATRE 24 CSR NO. 1564 25