STATE WATER RESOURCES CONTROL BOARD PUBLIC HEARING 1998 BAY-DELTA WATER RIGHTS HEARING HELD AT 901 P STREET SACRAMENTO, CALIFORNIA THURSDAY, MARCH 11, 1999 9:00 A.M. Reported by: MARY GALLAGHER, CSR #10749 CAPITOL REPORTERS (916) 923-5447 1 APPEARANCES ---oOo--- 2 3 BOARD MEMBERS: 4 JAMES STUBCHAER, CO-HEARING OFFICER JOHN W. BROWN, CO-HEARING OFFICER 5 MARC DEL PIERO MARY JANE FORSTER 6 7 STAFF MEMBERS: 8 THOMAS HOWARD - Supervising Engineer VICTORIA A. WHITNEY - Senior Engineer 9 10 COUNSEL: 11 WILLIAM R. ATTWATER - Chief Counsel WALTER PETTIT - Executive Director 12 BARBARA LEIDIGH - Senior Staff Counsel 13 ---oOo--- 14 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 11318 1 REPRESENTATIVES 2 PRINCETON CODORA GLENN IRRIGATION DISTRICT, et al. 3 FROST, DRUP & ATLAS 4 134 West Sycamore STreet Willows, California 95988 5 BY: J. MARK ATLAS, ESQ. 6 JOINT WATER DISTRICTS: 7 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 8 Oroville, California 95965 BY: WILLIAM H. BABER, III, ESQ. 9 CALIFORNIA SPORTFISHING PROTECTION ALLIANCE: 10 ROBERT J. BAIOCCHI 11 P.O. Box 357 Quincy, California 95971 12 BELLA VISTA WATER DISTRICT: 13 BRUCE L. BELTON, ESQ. 14 2525 Park Marina Drive, Suite 102 Redding, California 96001 15 WESTLANDS WATER DISTRICT: 16 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 17 400 Capitol Mall, 27th Floor Sacramento, California 95814 18 BY: THOMAS W. BIRMINGHAM, ESQ. AMELIA MINABERRIGARAI, ESQ. 19 THE BAY INSTITUTE OF SAN FRANCISCO: 20 GRAY BOBKER 21 55 Shaver Street, Suite 330 San Rafael, California 94901 22 CITY OF ANTIOCH, et al.: 23 FREDERICK BOLD, JR., ESQ. 24 1201 California Street, Suite 1303 San Francisco, California 94109 25 CAPITOL REPORTERS (916) 923-5447 11319 1 REPRESENTATIVES 2 LEAGUE OF WOMEN VOTERS: 3 ROBERTA BORGONOVO 4 2480 Union Street San Francisco, California 94123 5 UNITED STATES DEPARTMENT OF THE INTERIOR: 6 OFFICE OF THE SOLICITOR 7 2800 Cottage Way, Roon E1712 Sacramento, California 95825 8 BY: ALF W. BRANDT, ESQ. 9 CALIFORNIA URBAN WATER AGENCIES: 10 BYRON M. BUCK 455 Capitol Mall, Suite 705 11 Sacramento, California 95814 12 RANCHO MURIETA COMMUNITY SERVICES DISTRICT: 13 MCDONOUGH, HOLLAND & ALLEN 555 Capitol Mall, 9th Floor 14 Sacramento, California 95814 BY: VIRGINIA A. CAHILL, ESQ. 15 CALIFORNIA DEPARTMENT OF FISH AND GAME: 16 OFFICE OF THE ATTORNEY GENERAL 17 1300 I Street, Suite 1101 Sacramento, California 95814 18 BY: MATTHEW CAMPBELL, ESQ. 19 NATURAL RESOURCES DEFENSE COUNCIL: 20 HAMILTON CANDEE, ESQ. 71 Stevenson Street 21 San Francisco, California 94105 22 ARVIN-EDISON WATER STORAGE DISTRICT, et al.: 23 DOOLEY HERR & WILLIAMS 3500 West Mineral King Avenue, Suite C 24 Visalia, California 93191 BY: DANIEL M. DOOLEY, ESQ. 25 CAPITOL REPORTERS (916) 923-5447 11320 1 REPRESENTATIVES 2 SACRAMENTO MUNICIPAL UTILITY DISTRICT: 3 LESLIE A. DUNSWORTH, ESQ. 4 6201 S Street Sacramento, California 95817 5 SOUTH SAN JOAQUIN IRRIGATION DISTRICT, et al.: 6 BRAY, GEIGER, RUDQUIST & NUSS 7 311 East Main Street, 4th Floor Stockton, California 95202 8 BY: STEVEN P. EMRICK, ESQ. 9 EAST BAY MUNICIPAL UTILITY DISTRICT: 10 EBMUD OFFICE OF GENERAL COUNSEL 375 Eleventh Street 11 Oakland, California 94623 BY: FRED ETHERIDGE, ESQ. 12 GOLDEN GATE AUDUBON SOCIETY: 13 ARTHUR FEINSTEIN 14 2530 San Pablo Avenue, Suite G Berkeley, California 94702 15 CONAWAY CONSERVANCY GROUP: 16 UREMOVIC & FELGER 17 P.O. Box 5654 Fresno, California 93755 18 BY: WARREN P. FELGER, ESQ. 19 THOMES CREEK WATER ASSOCIATION: 20 THOMES CREEK WATERSHED ASSOCIATION P.O. Box 2365 21 Flournoy, California 96029 BY: LOIS FLYNNE 22 COURT APPOINTED REPS OF WESTLANDS WD AREA 1, et al.: 23 LAW OFFICES OF SMILAND & KHACHIGIAN 24 601 West Fifth Street, Seventh Floor Los Angeles, California 90075 25 BY: CHRISTOPHER G. FOSTER, ESQ. CAPITOL REPORTERS (916) 923-5447 11321 1 REPRESENTATIVES 2 CITY AND COUNTY OF SAN FRANCISCO: 3 OFFICE OF THE CITY ATTORNEY 4 1390 Market Street, Sixth Floor San Francisco, California 94102 5 BY: DONN W. FURMAN, ESQ. 6 CAMP FAR WEST IRRIGATION DISTRICT, et al.: 7 DANIEL F. GALLERY, ESQ. 926 J Street, Suite 505 8 Sacramento, California 95814 9 BOSTON RANCH COMPANY, et al.: 10 J.B. BOSWELL COMPANY 101 West Walnut Street 11 Pasadena, California 91103 BY: EDWARD G. GIERMANN 12 SAN JOAQUIN RIVER GROUP AUTHORITY, et al.: 13 GRIFFIN, MASUDA & GODWIN 14 517 East Olive Street Turlock, California 95381 15 BY: ARTHUR F. GODWIN, ESQ. 16 NORTHERN CALIFORNIA WATER ASSOCIATION: 17 RICHARD GOLB 455 Capitol Mall, Suite 335 18 Sacramento, California 95814 19 PLACER COUNTY WATER AGENCY, et al.: 20 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 400 Capitol Mall, 27th Floor 21 Sacramento, California 95814 BY: JANET GOLDSMITH, ESQ. 22 ENVIRONMENTAL DEFENSE FUND: 23 THOMAS J. GRAFF, ESQ. 24 5655 College Avenue, Suite 304 Oakland, California 94618 25 CAPITOL REPORTERS (916) 923-5447 11322 1 REPRESENTATIVES 2 CALAVERAS COUNTY WATER DISTRICT: 3 SIMON GRANVILLE 4 P.O. Box 846 San Andreas, California 95249 5 CHOWCHILLA WATER DISTRICT, et al.: 6 GREEN, GREEN & RIGBY 7 P.O. Box 1019 Madera, California 93639 8 BY: DENSLOW GREEN, ESQ. 9 CALIFORNIA FARM BUREAU FEDERATION: 10 DAVID J. GUY, ESQ. 2300 River Plaza Drive 11 Sacramento, California 95833 12 SANTA CLARA VALLEY WATER DISTRICT: 13 MORRISON & FORESTER 755 Page Mill Road 14 Palo Alto, California 94303 BY: KEVIN T. HAROFF, ESQ. 15 CITY OF SHASTA LAKE: 16 ALAN N. HARVEY 17 P.O. Box 777 Shasta Lake, California 96019 18 COUNTY OF STANISLAUS: 19 MICHAEL G. HEATON, ESQ. 20 926 J Street Sacramento, California 95814 21 GORRILL LAND COMPANY: 22 GORRILL LAND COMPANY 23 P.O. Box 427 Durham, California 95938 24 BY: DON HEFFREN 25 CAPITOL REPORTERS (916) 923-5447 11323 1 REPRESENTATIVES 2 SOUTH DELTA WATER AGENCY: 3 JOHN HERRICK, ESQ. 4 3031 West March Lane, Suite 332 East Stockton, California 95267 5 COUNTY OF GLENN: 6 NORMAN Y. HERRING 7 525 West Sycamore Street Willows, California 95988 8 REGIONAL COUNCIL OF RURAL COUNTIES: 9 MICHAEL B. JACKSON 10 1020 Twelfth Street, Suite 400 Sacramento, California 95814 11 DEER CREEK WATERSHED CONSERVANCY: 12 JULIE KELLY 13 P.O. Box 307 Vina, California 96092 14 DELTA TRIBUTARY AGENCIES COMMITTEE: 15 MODESTO IRRIGATION DISTRICT 16 P.O. Box 4060 Modesto, California 95352 17 BY: BILL KETSCHER 18 SAVE THE SAN FRANCISCO BAY ASSOCIATION: 19 SAVE THE BAY 1736 Franklin Street 20 Oakland, California 94612 BY: CYNTHIA L. KOEHLER, ESQ. 21 BATTLE CREEK WATERSHED LANDOWNERS: 22 BATTLE CREEK WATERSHED CONSERVANCY 23 P.O. Box 606 Manton, California 96059 24 25 CAPITOL REPORTERS (916) 923-5447 11324 1 REPRESENTATIVES 2 BUTTE SINK WATERFOWL ASSOCIATION, et al.: 3 MARTHA H. LENNIHAN, ESQ. 4 455 Capitol Mall, Suite 300 Sacramento, California 95814 5 CITY OF YUBA CITY: 6 WILLIAM P. LEWIS 7 1201 Civic Center Drive Yuba City, California 95993 8 BROWNS VALLEY IRRIGTAION DISTRICT, et al.: 9 BARTKIEWICZ, KRONICK & SHANAHAN 10 1011 22nd Street, Suite 100 Sacramento, California 95816 11 BY: ALAN B. LILLY, ESQ. 12 CONTRA COSTA WATER DISTRICT: 13 BOLD, POLISNER, MADDOW, NELSON & JUDSON 500 Ygnacio Valley Road, Suite 325 14 Walnut Creek, California 94596 BY: ROBERT B. MADDOW, ESQ. 15 GRASSLAND WATER DISTRICT: 16 DON MARCIOCHI 17 22759 South Mercey Springs Road Los Banos, California 93635 18 SAN LUIS CANAL COMPANY: 19 FLANAGAN, MASON, ROBBINS & GNASS 20 3351 North M Street, Suite 100 Merced, California 95344 21 BY: MIICHAEL L. MASON, ESQ. 22 STONY CREEK BUSINESS AND LAND OWNERS COALITION: 23 R.W. MCCOMAS 4150 County Road K 24 Orland, California 95963 25 CAPITOL REPORTERS (916) 923-5447 11325 1 REPRESENTATIVES 2 TRI-DAM POWER AUTHORITY: 3 TUOLUMNE UTILITIES DISTRICT 4 P.O. Box 3728 Sonora, California 95730 5 BY: TIM MCCULLOUGH 6 DELANO-EARLIMART IRRIGATION DISTRICT, et al.: 7 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 8 Oroville, California 95965 BY: JEFFREY A. MEITH, ESQ. 9 HUMANE FARMING ASSOCIATION: 10 BRADLEY S. MILLER. 11 1550 California Street, Suite 6 San Francisco, California 94109 12 CORDUA IRRIGATION DISTRICT, et al.: 13 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 14 P.O. Box 1679 Oroville, California 95965 15 BY: PAUL R. MINASIAN, ESQ. 16 EL DORADO COUNTY WATER AGENCY: 17 DE CUIR & SOMACH 400 Capitol Mall, Suite 1900 18 Sacramento, California 95814 BY: DONALD B. MOONEY, ESQ. 19 GLENN COUNTY FARM BUREAU: 20 STEVE MORA 21 501 Walker Street Orland, California 95963 22 MODESTO IRRIGATION DISTRICT: 23 JOEL MOSKOWITZ 24 P.O. Box 4060 Modesto, California 95352 25 CAPITOL REPORTERS (916) 923-5447 11326 1 REPRESENTATIVES 2 PACIFIC GAS & ELECTRIC: 3 RICHARD H. MOSS, ESQ. 4 P.O. Box 7442 San Francisco, California 94120 5 CENTRAL DELTA WATER AGENCY, et al.: 6 NOMELLINI, GRILLI & MCDANIEL 7 P.O. Box 1461 Stockton, California 95201 8 BY: DANTE JOHN NOMELLINI, ESQ. and 9 DANTE JOHN NOMELLINI, JR., ESQ. 10 TULARE LAKE BASIN WATER STORAGE UNIT: 11 MICHAEL NORDSTROM 1100 Whitney Avenue 12 Corcoran, California 93212 13 AKIN RANCH, et al.: 14 DOWNEY, BRAND, SEYMOUR & ROHWER 555 Capitol Mall, 10th Floor 15 Sacramento, California 95814 BY: KEVIN M. O'BRIEN, ESQ. 16 OAKDALE IRRIGATION DISTRICT: 17 O'LAUGHLIN & PARIS 18 870 Manzanita Court, Suite B Chico, California 95926 19 BY: TIM O'LAUGHLIN, ESQ. 20 SIERRA CLUB: 21 JENNA OLSEN 85 Second Street, 2nd Floor 22 San Francisco, California 94105 23 YOLO COUNTY BOARD OF SUPERVISORS: 24 LYNNEL POLLOCK 625 Court Street 25 Woodland, California 95695 CAPITOL REPORTERS (916) 923-5447 11327 1 REPRESENTATIVES 2 PATRICK PORGENS & ASSOCIATES: 3 PATRICK PORGENS 4 P.O. Box 60940 Sacramento, California 95860 5 BROADVIEW WATER DISTRICT, et al.: 6 DIANE RATHMANN 7 P.O. Box 156 Dos Palos, California 93620 8 FRIENDS OF THE RIVER: 9 BETSY REIFSNIDER 10 128 J Street, 2nd Floor Sacramento, California 95814 11 MERCED IRRIGATION DISTRICT: 12 FLANAGAN, MASON, ROBBINS & GNASS 13 P.O. Box 2067 Merced, California 95344 14 BY: KENNETH M. ROBBINS, ESQ. 15 CENTRAL SAN JOAQUIN WATER CONSERVATION DISTRICT: 16 REID W. ROBERTS, ESQ. 311 East Main Street, Suite 202 17 Stockton, California 95202 18 METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA: 19 JAMES F. ROBERTS P.O. Box 54153 20 Los Angeles, California 90054 21 SACRAMENTO AREA WATER FORUM: 22 CITY OF SACRAMENTO 980 9th Street, 10th Floor 23 Sacramento, California 95814 BY: JOSEPH ROBINSON, ESQ. 24 25 CAPITOL REPORTERS (916) 923-5447 11328 1 REPRESENTATIVES 2 TUOLUMNE RIVER PRESERVATION TRUST: 3 NATURAL HERITAGE INSTITUTE 4 114 Sansome Street, Suite 1200 San Francisco, California 94194 5 BY: RICHARD ROOS-COLLINS, ESQ. 6 CALIFORNIA DEPARTMENT OF WATER RESOURCES: 7 DAVID A. SANDINO, ESQ. P.O. Box 942836 8 Sacramento, California 94236 9 FRIANT WATER USERS AUTHORITY: 10 GARY W. SAWYERS, ESQ. 575 East Alluvial, Suite 101 11 Fresno, California 93720 12 KERN COUNTY WATER AGENCY: 13 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 400 Captiol Mall, 27th Floor 14 Sacramento, California 95814 BY: CLIFFORD W. SCHULZ, ESQ. 15 SAN JOAQUIN RIVER EXCHANGE CONTRACTORS: 16 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 17 P.O. Box 1679 Oroville, California 95965 18 BY: MICHAEL V. SEXTON, ESQ. 19 SAN JOAQUIN COUNTY: 20 NEUMILLER & BEARDSLEE P.O. Box 20 21 Stockton, California 95203 BY: THOMAS J. SHEPHARD, SR., ESQ. 22 CITY OF STOCKTON: 23 DE CUIR & SOMACH 24 400 Capitol Mall, Suite 1900 Sacramento, California 95814 25 BY: PAUL S. SIMMONS, ESQ. CAPITOL REPORTERS (916) 923-5447 11329 1 REPRESENTATIVES 2 ORLAND UNIT WATER USERS' ASSOCIATION: 3 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 4 P.O. Box 1679 Oroville, California 95965 5 BY: M. ANTHONY SOARES, ESQ. 6 GLENN-COLUSA IRRIGATION DISTRICT: 7 DE CUIR & SOMACH 400 Capitol Mall, Suite 1900 8 Sacramento, California 95814 BY: STUART L. SOMACH, ESQ. 9 NORTH SAN JOAQUIN WATER CONSERVATION DISTRICT: 10 JAMES F. SORENSEN CONSULTING CIVIL ENGINEER, INC.: 11 209 South Locust Street Visalia, California 93279 12 BY: JAMES F. SORENSEN 13 PARADISE IRRIGATION DISTRICT: 14 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 15 Oroville, California 95965 BY: WILLIAM H. SPRUANCE, ESQ. 16 COUNTY OF COLUSA: 17 DONALD F. STANTON, ESQ. 18 1213 Market Street Colusa, California 95932 19 COUNTY OF TRINITY: 20 COUNTY OF TRINITY - NATURAL RESOURCES 21 P.O. Box 156 Hayfork, California 96041 22 BY: TOM STOKELY 23 CITY OF REDDING: 24 JEFFERY J. SWANSON, ESQ. 2515 Park Marina Drive, Suite 102 25 Redding, California 96001 CAPITOL REPORTERS (916) 923-5447 11330 1 REPRESENTATIVES 2 TULARE IRRIGATION DISTRICT: 3 TEHEMA COUNTY RESOURCE CONSERVATION DISTRICT 4 2 Sutter Street, Suite D Red Bluff, California 96080 5 BY: ERNEST E. WHITE 6 STATE WATER CONTRACTORS: 7 BEST BEST & KREIGER P.O. Box 1028 8 Riverside, California 92502 BY: CHARLES H. WILLARD 9 COUTNY OF TEHEMA, et al.: 10 COUNTY OF TEHEMA BOARD OF SUPERVISORS 11 P.O. Box 250 Red Bluff, California 96080 12 BY: CHARLES H. WILLARD 13 MOUNTAIN COUNTIES WATER RESOURCES ASSOCIATION: 14 CHRISTOPHER D. WILLIAMS P.O. Box 667 15 San Andreas, California 95249 16 JACKSON VALLEY IRRIGATION DISTRICT: 17 HENRY WILLY 6755 Lake Amador Drive 18 Ione, California 95640 19 SOLANO COUNTY WATER AGENCY, et al.: 20 HERUM, CRABTREE, DYER, ZOLEZZI & TERPSTRA 2291 West March Lane, S.B. 100 21 Stockton, California 95207 BY: JEANNE M. ZOLEZZI, ESQ. 22 23 ---oOo--- 24 25 CAPITOL REPORTERS (916) 923-5447 11331 1 I N D E X 2 ---oOo--- 3 4 PAGE 5 OPENING OF HEARING 11333 6 AFTERNOON SESSION 11428 7 END OF PROCEEDINGS 11547 8 CROSS-EXAMINATION OF THE DEPARTMENT OF THE INTERIOR, 9 DEPARTMENT OF FISH AND GAME AND DEPARTMENT OF WATER RESOURCES: 10 DANTE JOHN NOMELLINI, JR. 11336 11 MICHAEL SEXTON 11399 DANIEL DOOLEY 11404 12 THOMAS BIRMINGHAM 11407 KEN SUYEYASU 11481 13 REDIRECT EXAMINATION OF THE DEPARTMENT OF RECLAMATION: 14 JAMES TURNER 11526 15 CROSS-EXAMINATION OF THE DEPARTMENT OF RECLAMATION: 16 MICHAEL JACKSON 11528 17 18 ---oOo--- 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 11332 1 THURSDAY, MARCH 11, 1999, 9:00 A.M. 2 SACRAMENTO, CALIFORNIA 3 ---oOo--- 4 C.O. STUBCHAER: Good morning. We'll recall the 5 Bay-Delta Hearing. Before we continue with the 6 cross-examination of this panel, we're going to take a 7 couple of appearances. 8 Who wishes to identify themselves as parties? 9 Good morning, Mr. Dooley. 10 MR. DOOLEY: Good morning, Mr. Chairman. My name is 11 Dan Dooley with Dooley Herr and Williams appearing on 12 behalf of several Cross Valley Canal Contractors. 13 C.O. STUBCHAER: Thank you. 14 MR. CONANT: Ernest Conant with Young Wooldridge, 15 again, appearing on behalf of several Cross Valley 16 Contractors. 17 C.O. STUBCHAER: Do you need the spelling, Mary? 18 THE COURT REPORTER: Yes, please. 19 C.O. STUBCHAER: Could you, please, spell your last 20 name? 21 MR. CONANT: Yes, C-O-N-A-N-T. 22 C.O. STUBCHAER: All right. Mr. Nomellini, Jr. -- 23 MR. TURNER: Mr. Chairman, before we begin I'd like 24 to make one announcement that may be of interest to the 25 other parties and that is that our panel witness, CAPITOL REPORTERS (916) 923-5447 11333 1 Dr. Martin Kjelson, he's not going to be able to be here 2 until about 10:30 this morning. He's got to make 3 arrangements -- supposedly he's reporting for jury duty. 4 So he's making arrangements. He will be able to be here. 5 He probably wouldn't make it until about 10:30. 6 So if people have any specific questions that they wanted 7 to address to him, or issues -- the fish and wildlife 8 issues that he might be involved in, it may be in their 9 best interest to delay that if they could until then. 10 C.O. STUBCHAER: Well, he will be coming up later 11 for cross-examination on his revised direct anyway. 12 MR. TURNER: Correct. 13 C.O. STUBCHAER: And yesterday I don't recall any 14 questions of him. 15 MR. TURNER: No, there wasn't but I just wanted the 16 parties to know. 17 C.O. STUBCHAER: Thank you. 18 MR. TURNER: One other request, you recall yesterday 19 I believe it was during cross-examination by 20 Mr. Jackson, he had presented some questions to John 21 Renning of the panel in connection with Alternative 9 and 22 the quantities of water that would be diverted under that 23 alternative versus the other alternatives. And John would 24 like to make a clarification statement this morning. As 25 you may recall he was testifying that that figure looked a CAPITOL REPORTERS (916) 923-5447 11334 1 little strange. 2 C.O. STUBCHAER: Yes, I do recall that. 3 MR. TURNER: He'd like to expand on that. 4 C.O. STUBCHAER: You might avoid some later 5 questions from other people. 6 MR. TURNER: Precisely. 7 C.O. STUBCHAER: Is Mr. Jackson here? Does anyone 8 know if he's going to be here today? 9 MR. NOMELLINI: He said he might be here. 10 C.O. STUBCHAER: Why don't we defer Mr. Renning's 11 additional explanation until later so we can see if 12 Mr. Jackson is here to hear it. 13 MR. RENNING: That's fine with me. 14 MR. TURNER: Thank you very much. 15 C.O. STUBCHAER: You're welcome. 16 MR. SEXTON: Good morning, Mr. Stubchaer. Michael 17 Sexton for the Exchange Contractors. I wasn't able to be 18 here yesterday. And I understand from my partner, who was 19 here, that some testimony came up -- I think it was from 20 Mr. Renning -- relating to water that may or may not be 21 used by the Exchange Contractors and water that should or 22 should not be released from Friant. This was under 23 questioning from Mr. Jackson. I wonder if I may impose 24 upon the Chair if I might have about five-minutes 25 examination to try to clarify that issue? CAPITOL REPORTERS (916) 923-5447 11335 1 C.O. STUBCHAER: Yes. We will add you to the 2 cross-examination list. And for purposes of arranging the 3 cross-examination -- yeah, Mr. Dooley, I have your card. 4 And I didn't write down the other gentleman's name. 5 MR. CONANT: Conant. 6 C.O. STUBCHAER: Do you wish to cross-examine? 7 MR. CONANT: Mr. Dooley will take care of today. 8 C.O. STUBCHAER: All right. Fine. Okay. Thank 9 you. 10 All right, Mr. Nomellini. 11 ---oOo--- 12 CROSS-EXAMINATION OF THE DEPARTMENT OF INTERIOR, 13 DEPARTMENT OF FISH AND GAME AND 14 DEPARTMENT OF WATER RESOURCES 15 BY CENTRAL DELTA PARTIES 16 DANTE JOHN NOMELLINI, JR. 17 MR. NOMELLINI, JR.: Good morning, Chairman 18 Stubchaer. Good morning to the Board, staff, panel. My 19 name is Dante Nomellini, Jr., and I'm here on behalf of 20 the Central Delta Parties and I'd like to hopefully 21 quickly just run over what we talked about yesterday, just 22 to finalize it. 23 And if you recall there was a discussion about 24 the statements in the Draft EIR regarding the Army Corps 25 of Engineers' permit. And I was wondering if maybe that CAPITOL REPORTERS (916) 923-5447 11336 1 got resolved or if some somebody on the panel could 2 clarify that. If I could get us back to square one, the 3 Draft EIR Chapter 13, Page 1, the last paragraph states, 4 (Reading): 5 "The State Water Project can operate to its 6 physical capacity of 10,400 cubic feet per 7 second under limited conditions established in 8 the agreement." 9 And "the agreement" they're referring to is with 10 the Army Corps. And there's another statement in the EIR 11 that's slightly different than that one. This statement 12 is Chapter 13, Page 6. And that statement reads, 13 (Reading): 14 "The maximum pumping rate under the Army 15 Corps's Notice 5820-A is 8,500 cubic feet per 16 second." 17 And I'd like to know, just to clarify the record, 18 which one of those statements is correct, or how did they 19 relate to each other? 20 MR. GAGE: Larry Gage. The 10,400 I'm not sure 21 that's the exact number, but it's easily verified by 22 actually looking at the Corps' letter, is the correct 23 number. I'm not sure where the 8,500 comes from. 24 MR. NOMELLINI, JR.: Okay. Thank you. And the 25 final question regarding this: For those alternatives in CAPITOL REPORTERS (916) 923-5447 11337 1 the Draft EIR which assume the Army Corps' agreement is in 2 place, which figure did those alternatives assume the 3 maximum pumping rate under the agreement would be, the 4 10,400 cubic feet per second or the 8,500 cubic feet per 5 second? 6 MR. GAGE: I was not involved in the modeling study, 7 so I really do not know the answer to that. 8 MR. NOMELLINI, JR.: And if anybody else on the 9 panel might know. 10 MR. RENNING: I believe the studies assumed that 11 there was 10,400 cfs available, but I don't think that the 12 studies ever utilized that quantity. If you look -- I'm 13 sorry, what exhibit is that? That's 10-X. 14 If you look at Exhibit 10-X you'll see that the 15 maximum pumping by the CVP, including use of the joint 16 point of diversions is about 12,000 cfs. Now, the State 17 may also be doing some pumping at that same time. But I 18 think the fact that there is that high use at that 19 particular -- in that particular month, that probably 20 means that the state pumping is at a very low level and 21 pumping in that particular month might only be on the 22 order of 12 or 13,000 cfs. 23 MR. NOMELLINI, JR.: Okay. Thank you. Moving off 24 that topic, I want to run through quickly the conversation 25 about the instantaneous diversion rights of the CVP. And CAPITOL REPORTERS (916) 923-5447 11338 1 if you recall there was a discussion whether the CVP was 2 limited to 4 to 600 cubic feet per second, or some larger 3 figure up to possibly 22,000 cubic feet per second. 4 And could I get a clarification of what you 5 believe, Mr. Renning, is the CVP's currently authorized 6 instantaneous diversion rate from the Delta? 7 MR. RENNING: I'm not exactly sure how I would 8 answer regarding what is "currently authorized." It's the 9 Bureau's position that we have as much as 22,000 cfs of 10 diversion right available to us. And that these are 11 covered in the various permits that the Central Valley 12 Project has. 13 At present, because of the limitations or the 14 ambiguities regarding where we can divert water, we are 15 physically limited to 4600 cfs at Tracy which is, of 16 course, the physical capacity of the plant. And to the 17 pumping levels at the Banks pumping plant that have been, 18 if you will, authorized either by 98-9 for making certain 19 diversions at the Banks pumping plant. 20 MR. NOMELLINI, JR.: There was some discussion 21 yesterday also about the extent to which the Bureau has 22 ever diverted 22,000 cubic feet per second from the 23 permits that allow it; is that true? 24 MR. RENNING: It's certainly true that we have never 25 diverted 22,000 cfs at one particular time, yes. CAPITOL REPORTERS (916) 923-5447 11339 1 MR. NOMELLINI, JR.: Do you mean you've never 2 diverted 22,000 cubic feet per second at any one time from 3 the Delta, or are you including the Sacramento River? 4 MR. RENNING: That includes the Sacramento River, 5 too. 6 MR. NOMELLINI, JR.: And I believe you stated 7 yesterday that the maximum amount that you believe in the 8 last ten years that the Bureau has diverted of that 22,000 9 cubic feet per second is somewhere near 12,000 cubic feet 10 per second; is that correct? 11 MR. RENNING: No. 12,000 is the figure that is -- 12 that comes out of Alternative 8, which is the alternative 13 that has the maximum use of the joint point of diversion. 14 In the recent past -- and here I'm kind of 15 guessing off the top of my head, the maximum diversion 16 rate that we may have had at one particular time is, 17 perhaps, on the order of 5500 to 6,000 cfs when use of 18 Banks is added to our diversions at Tracy. 19 MR. NOMELLINI, JR.: So you believe you're allowed 20 to export from the Delta including the Sacramento River 21 area up to 22,000 cubic feet per second. And I believe 22 you said in the recent past the maximum of that 22,000 23 you've ever used has been on the order of 5500 cubic feet 24 per second? 25 MR. BIRMINGHAM: Objection. Compound. CAPITOL REPORTERS (916) 923-5447 11340 1 C.O. STUBCHAER: I think the question is 2 understandable. 3 You may answer it. 4 MR. RENNING: I'm sorry, I may have misled you 5 there. The 5500 to 6,000 cfs is what we would have been 6 using for our exports from the Delta. At that same time 7 there were diversions that were taking place in other 8 points on the system along the Sacramento River. 9 MR. NOMELLINI, JR.: Okay. I don't want to belabor 10 this too much, but I just want to know: Of the 22,000 11 cubic feet per second that you're allowed to divert, 12 according to the permits which allow 22,000 cubic feet per 13 second, how much of that 22,000 cubic feet per second have 14 you ever diverted in, say, the last ten years? 15 MR. RENNING: Well, like I earlier said, I think 16 that the maximum rate that we have diverted from the Delta 17 in the last ten years or so has probably been on the order 18 of 5500 to 6,000 cfs. There have been other diversions 19 taking place in other parts of the system that would also 20 be covered by those rights, but I don't -- I don't have a 21 handle on that at the moment. 22 MR. NOMELLINI, JR.: Do you have any idea if you 23 think you've used the full 22,000 cubic feet per second in 24 the recent years? 25 MR. RENNING: No, we have never used that high of a CAPITOL REPORTERS (916) 923-5447 11341 1 diversion. 2 MR. NOMELLINI, JR.: When did the CVP or the Bureau 3 first get the right to divert this 22,000 cubic feet per 4 second? 5 MR. RENNING: The rights that are -- the rights that 6 the CVP have were initially granted to the Bureau in 7 Decision 990 which took place in 1960. I believe 1960 is 8 the date, although the CVP was in operation for a 9 significant length of time before the hearing on those 10 rights was held. 11 MR. NOMELLINI, JR.: Since approximately 1960 has 12 the Bureau proceeded with due diligence since that time to 13 put the full 22,000 cubic feet per second to use? 14 MR. RENNING: We have proceeded with diligence to 15 build various facilities of the CVP that have expanded its 16 use. We've added the San Luis Unit to the CVP, for 17 instance. 18 MR. NOMELLINI, JR.: What other actions have you 19 taken besides adding the San Luis Unit? 20 MR. RENNING: Over time the demand on the CVP has 21 increased and our diversions have increased to meet that 22 demand. 23 MR. NOMELLINI, JR.: Have there been any other 24 facilities constructed to help fully utilized the 22,000 25 cubic feet per second? CAPITOL REPORTERS (916) 923-5447 11342 1 MR. TURNER: Mr. Stubchaer, I have to raise an 2 objection. I fail to see how this issue about the 3 implementation of the Bureau's permits relates in any way 4 to the request for permission to use the joint point of 5 diversion. 6 Could you, please, have Mr. Nomellini explain the 7 relationship between that and the subject matter of what 8 we're talking about? 9 C.O. STUBCHAER: Mr. Nomellini? 10 MR. NOMELLINI, JR.: That was my last question, but 11 the relevance of it was I was trying to figure out what 12 modifications to the party's current permits are they 13 seeking. In order to see what needs to be modified, I was 14 trying to establish what were the current rights before we 15 see if they need to ask for approval to change those 16 rights. 17 So I was trying to elicit how much water the 18 Bureau can currently export from the Delta. And it seems 19 unclear whether they, in fact, have the right to divert 20 22,000 cubic feet per second from the Delta. But, again, 21 I don't know if you're asking to strike that last answer 22 or not, but I'm done with this topic. 23 MR. RENNING: Fine. 24 C.O. STUBCHAER: All right. Please, move on. 25 MR. NOMELLINI, JR.: Okay. In the Draft EIR, what CAPITOL REPORTERS (916) 923-5447 11343 1 was the maximum amount that the CVP ever instantaneously 2 exported from the Delta? 3 MR. BIRMINGHAM: May I ask that that question be 4 reread? 5 C.O. STUBCHAER: Can you read it? I can repeat it 6 for you, Mr. Birmingham, but we'll ask the Court Reporter 7 to do it instead. 8 (Whereupon the question was read back by the Reporter.) 9 MR. BIRMINGHAM: May I ask for clarification, 10 Mr. Stubchaer? Is the question designed to elicit an 11 answer as to what the Draft EIR says, or what the historic 12 maximum has been? 13 C.O. STUBCHAER: Mr. Nomellini, could you clarify? 14 MR. NOMELLINI, JR.: I'm interested in the extent to 15 which the DEIR modeled exports from the CVP from the 16 Delta. And I wanted to know: What was the maximum amount 17 the DEIR looked at as far as the CVP's exports from the 18 Delta? 19 C.O. STUBCHAER: That's a good question, 20 Mr. Birmingham. Good clarification. So it's the modeled 21 maximum, not the historic maximum? 22 MR. NOMELLINI, JR.: That's correct. 23 C.O. STUBCHAER: Okay. 24 MR. RENNING: In the Draft EIR the maximum rates 25 that the CVP diverted, including use of the joint point of CAPITOL REPORTERS (916) 923-5447 11344 1 diversion are shown on Exhibit 10-X. This is Alternative 2 8, which has the maximum use of water under the joint 3 point of diversion. 4 It also has a higher demand which forces that 5 higher use of the joint point of diversion. And it shows 6 that that maximum use is approximately 12,000 cfs. Also, 7 on Exhibit 10-Z you can see, on a percentage basis, the 8 various levels of use of Tracy and the joint point of 9 diversion. 10 And you can see on that that the maximum use 11 occurs in alternatives -- Alternatives 6, 7, and 8, I 12 believe. I'm having trouble seeing the colors, but -- 13 pardon me. It looks like it's in Alternative 7. 14 C.O. STUBCHAER: Mr. Gage, could you slide that over 15 just a little bit so the colors are highlighted a little 16 more? 17 I see a mustard-colored bar that seems the 18 highest in there. I don't see a mustard-colored bar for 19 Alternative 7, if I'm looking correctly. 20 MR. RENNING: No. The height of the bars is the 21 percentage. 22 C.O. STUBCHAER: I'm sorry. We couldn't see the Y 23 axis before either. That is percent of the time? 24 MR. RENNING: Yes. 25 C.O. STUBCHAER: Okay. CAPITOL REPORTERS (916) 923-5447 11345 1 MR. RENNING: And this is where the maximum use 2 occurs. 3 C.O. STUBCHAER: Right. 4 MR. RENNING: And this is 5, 6 and 7 percentages of 5 time. 6 MS. WHITNEY: Excuse me, Mr. Stubchaer? 7 C.O. STUBCHAER: Yes. 8 MS. WHITNEY: That's going to be very difficult to 9 understand in the transcripts. 10 C.O. STUBCHAER: You're right. Explain which 11 pumping rate and alternatives you're referring to on the 12 right most side of the multiple bar graph. 13 MR. RENNING: What Exhibit 10-C shows is the 14 percentage of time that pumping rates of the CVP, 15 including the joint point of diversion, occur in each of 16 the alternatives. And it shows that there are some small 17 percentages of time where pumping rates are above 10,600 18 cfs, and in these alternatives, which are here, are 5, 6 19 and 7. 20 I'm just noting that this 12,000 figure from 21 Alternative 8 may not show up, because that may be the 22 only month that there was ever such a figure. And it was 23 such a low value that the program did not show it in this 24 particular category, because it was such a small 25 percentage. CAPITOL REPORTERS (916) 923-5447 11346 1 C.O. STUBCHAER: Well, that raises a question, if I 2 may, Mr. Nomellini? 3 MR. NOMELLINI, JR.: Certainly. 4 C.O. STUBCHAER: There's a lot of places on the 5 graph where there's no bar, there's no color. So if the 6 percentage is zero, does a bar or spot for a bar appear, 7 or is it just left blank? 8 MR. RENNING: No. If there was a zero it does not 9 appear in here. If you'll note on the chart over at the 10 side, I have percentages down to a ten-thousandth of a 11 percent. And I had to do that so zero values didn't show 12 up on this graph, which would clutter up the graph. 13 C.O. STUBCHAER: So, then, why wouldn't an 14 alternative or a value which had, at least, one event 15 during the period show up if it was greater a 16 ten-thousandth of a percent? 17 MR. RENNING: I can't answer that question. At the 18 moment I'm puzzled by that. 19 C.O. STUBCHAER: Please, proceed, Mr. Nomellini. 20 MR. NOMELLINI, JR.: Getting back to what are the 21 instantaneous diversion rates of the projects that is the 22 allowable instantaneous diversion rates, Mr. Gage, could 23 you just tell us what is the State Water Project's 24 currently authorized instantaneous diversion rate from the 25 Delta? CAPITOL REPORTERS (916) 923-5447 11347 1 MR. GAGE: I believe our water rights allow us 2 10,300 cfs and the Corps' permits are as I discussed 3 before. 4 MR. NOMELLINI, JR.: Thank you. So is it fair to 5 say that under the panel's joint point of diversion 6 proposal the projects combined export from the Delta will 7 never exceed, I believe, 14,900 cubic feet per second; is 8 that correct? 9 MR. GAGE: 10,3 plus 4,6 sounds like 14,9 to me. 10 MR. NOMELLINI, JR.: Thank you. It's often been 11 said that Alternative 8 has modeled the maximum amount of 12 diversions under this future joint point of diversion plan 13 that Alternative 8 is also limited by the annual 14 authorized diversion rates of the projects. And I'd like 15 to just quickly get those figures, for the record. 16 Mr. Renning, what is the CVP's current annual 17 authorized diversion? 18 MR. RENNING: I'm sorry, I simply don't know that 19 figure. I believe that it's in the order of three and a 20 half million acre-feet, but I simply can't remember what 21 the exact figure is. 22 MR. NOMELLINI, JR.: Do you know if the DEIR ever 23 modeled a situation in which the CVP exported greater than 24 3.5 million acre-feet? 25 MR. RENNING: This is Exhibit 10-F and it shows that CAPITOL REPORTERS (916) 923-5447 11348 1 the -- in the modeling that was done for the EIR, that the 2 maximum diversion in any of the alternatives was 3 approaching four million acre-feet in Alternative 9, that 4 occurred in approximately 1962 -- pardon me, Alternative 5 8. 6 MR. NOMELLINI, JR.: What I'm trying to get at is 7 whether the panel is asking the State Board to in any way 8 modify the project water rights; therefore, I was trying 9 to determine what are the project's current annual 10 authorized diversions and see if this panel is 11 recommending the Board to extend or increase their annual 12 authorized diversions. Anymore assistance on that 13 question would be appreciated. 14 MR. RENNING: I think the simple answer to that 15 would be that we would like to have whatever changes need 16 to be done to our water rights to enable us to use the 17 joint point of diversion in the way that's shown in these 18 studies. 19 And if that requires that there be some changes 20 to the annual quantities, then that would need to be done. 21 Certainly one of things that will need to be done is that 22 the state plant will have to be clearly added as a point 23 of diversion under the CVP water rights. 24 MR. NOMELLINI, JR.: So you want the Board to 25 authorize the annual diversions that have been reproduced CAPITOL REPORTERS (916) 923-5447 11349 1 in the DEIR. Is it correct that the maximum annual 2 diversion in the DEIR is four million acre-feet from the 3 CVP? 4 MR. RENNING: It approaches four million acre-feet 5 in Alternative 8, yes. 6 MR. NOMELLINI, JR.: Thank you. And for the State's 7 Water Project, what is the State Water Project's current 8 annual authorized diversion? 9 MR. GAGE: I don't actually know that exact number. 10 I'm sure it's available in the Board's water rights 11 information. I believe we have a restriction on 12 instantaneous diversion, location and an annual amount. 13 And we're not looking for any change in annual amount. 14 MR. NOMELLINI, JR.: Okay. I want to move on to 15 where, under the panel's joint point of diversion 16 proposal, the water will be delivered. And I guess this 17 is to Mr. Renning; of course, anybody can respond. 18 Mr. Renning, will any of the water that results 19 from the joint point of diversion be delivered to areas 20 outside the authorized place of use of the CVP's water 21 right permits? 22 MR. RENNING: We are seeking to use the joint point 23 of diversion to deliver water to areas that we currently 24 deliver water to. To the extent that there are areas 25 outside of our presently permitted place of use, we are CAPITOL REPORTERS (916) 923-5447 11350 1 seeking to have that addressed in the next phase of this 2 hearing. And we would expect that we will be able to 3 continue to divert water to those areas. 4 MR. NOMELLINI, JR.: Do you have an understanding as 5 to what amount of water might be delivered to those areas 6 outside the place of use? 7 MR. RENNING: I -- 8 MR. TURNER: I would have to object to that 9 question. Mr. Renning just advised Mr. Nomellini that the 10 whole place of use problem is going to be addressed in the 11 next phase. And unless we know where the actual place of 12 use is as approved by the Board, we can't quantify how 13 much water we're going to designate to a place. So I 14 think it's a question that he can't respond to at this 15 point. 16 C.O. STUBCHAER: Mr. Nomellini? 17 MR. NOMELLINI, JR.: I'm okay with that. 18 The next question, Mr. Renning, or the panel: 19 Would the panel agree that a proper condition of the 20 panel's joint point of diversion proposal would be that 21 the joint point of diversion water shall not be delivered 22 to areas outside the project's authorized place of use? 23 MR. RENNING: Well, I think that goes without saying 24 that water rights have a prescribed place of use 25 associated with them. We are intending to stay within CAPITOL REPORTERS (916) 923-5447 11351 1 that prescribed place of use. However, as I said earlier, 2 we are seeking to modify that prescribed place of use in 3 this next phase of the hearings. And we intend to only 4 serve that area. 5 MR. NOMELLINI, JR.: Mr. Renning, will any of the 6 joint point of diversion water be delivered to areas on 7 the west side of the San Joaquin Valley which directly or 8 indirectly add salts to the San Joaquin River? 9 MR. RENNING: Yes. We intend to continue service to 10 our existing contractors and some of those areas do drain 11 to the San Joaquin River. 12 MR. NOMELLINI, JR.: Again, do you have any idea how 13 much of the joint point of diversion water will be 14 delivered to areas which may drain salts into the San 15 Joaquin River? 16 MR. RENNING: I'm sorry, I didn't hear your 17 question. 18 MR. NOMELLINI, JR.: I just wanted to know if you 19 had any idea of the quantity of water that you believe 20 might result in deliveries to areas which drain salts into 21 the San Joaquin River? 22 MR. RENNING: I don't have the breakdown on what 23 the -- what the various areas are of the areas that drain 24 to the San Joaquin River and areas that don't. I'd also 25 like to add that our service to areas south of the Delta CAPITOL REPORTERS (916) 923-5447 11352 1 also includes wildlife refuges and urban areas in addition 2 to our agricultural contractors. And we seek to have -- 3 have this action cover those as well. 4 MR. NOMELLINI, JR.: Mr. Renning, do you know if the 5 Draft EIR examined the extent to which the various joint 6 point of diversion alternatives would potentially add 7 salts and selenium to the San Joaquin River? 8 MR. RENNING: Mr. Robinson can answer the question. 9 MR. ROBINSON: Yes. I mean the Draft EIR addresses 10 a number of places within the San Joaquin system where the 11 selenium issues are in the San Joaquin River system. 12 MR. NOMELLINI, JR.: I understand that it addresses 13 salinity issues in general, but do you know if the Draft 14 EIR specifically examined the extent to which the various 15 joint point of diversion alternatives would potentially 16 add salts and selenium to the San Joaquin River? 17 MR. ROBINSON: Salts and selenium, I guess, you know 18 the definition of "salts," I kind of throw that in with, 19 say, the salinity and the chloride evaluations that have 20 been done. Selenium, specifically, no, that wasn't done. 21 MR. NOMELLINI, JR.: And what tables are you 22 referring to with regard to salinity? 23 MR. ROBINSON: This would be the revised Draft EIR 24 Chapter 13, Pages 1324 through 1333, Figures 13-12 through 25 13-41. CAPITOL REPORTERS (916) 923-5447 11353 1 MR. NOMELLINI, JR.: So is it your testimony that 2 those figures analyze the extent to which the joint point 3 of diversion water would drain salts back into the San 4 Joaquin River? 5 MR. ROBINSON: As the figures say: This is an 6 analysis of the effects upon salinity in various locations 7 in rivers throughout both the Sacramento as well as the 8 San Joaquin system. 9 MR. NOMELLINI, JR.: I was simply trying to figure 10 out: What were the assumptions in those studies and 11 whether they, in fact, looked at what the joint point of 12 diversion water did to impact the salinity in the San 13 Joaquin River? 14 MR. ROBINSON: I guess, you basically -- you know, 15 the assumptions that are in it are that the modifications, 16 the deliveries and flows that would take place in these 17 various river systems and what the mass balancing of flow 18 versus the concentrations and predicted values for each 19 one of the various alternatives are going to do, which are 20 demonstrated on a monthly basis within these graphs where 21 you could compare one alternative to the next. 22 MR. NOMELLINI, JR.: Again, I hate to belabor this, 23 but do you know the assumptions in the modeling and 24 whether or not that modeling looked at the incremental 25 impact to the San Joaquin River from drainage from use of CAPITOL REPORTERS (916) 923-5447 11354 1 the joint point of diversion water? 2 MR. ROBINSON: In terms of the specific assumptions 3 of the model and, you know, how it's calculating return 4 flows and mass balancing, you know, that question I'd 5 defer to some -- probably one of the DWR modelers that are 6 very familiar with it. 7 To the extent that: Did we compare the 8 alternatives? Yes, we did and that's what the graphs 9 represent. 10 MR. NOMELLINI, JR.: My last point is: The crux of 11 what I'm getting at is when you compared the alternatives 12 did you look and see which alternative added the most 13 salts to the San Joaquin River and which didn't? That's 14 basically what I was getting at. 15 MR. ROBINSON: Well, you know, I think we could 16 probably look at one of the specific figures and be able 17 to tell that for you, if you'd like to give us a location. 18 MR. NOMELLINI, JR.: Well, my basic problem -- I 19 understand the graphs looked at salinity, but I'm 20 interested in what impacts they considered to result in 21 that salinity. And looking at the graph itself doesn't 22 tell me that, but if you want to look at the graphs. 23 C.O. STUBCHAER: Mr. Nomellini, did you have a 24 specific location? They can't answer the question unless 25 you give them a location where you want the salinity CAPITOL REPORTERS (916) 923-5447 11355 1 numbers, or -- 2 MR. NOMELLINI, JR.: Yes, sorry. That's a good 3 point. I was referring to drainage impacts in salinity in 4 general, but as far as the charts I'm interested in the 5 Vernalis salinity standard at Airport. 6 MR. ROBINSON: Airport Bridge. In reference to your 7 question, I think the graphs are contained in Figures 8 13-32 through 13-36. Salinity was -- the effects of the 9 joint point of alternatives as well as the implementation 10 of the plan are presented in those figures for wet years, 11 normal years, dry years and critical years. 12 MR. NOMELLINI, JR.: One last time: Do you know if 13 these charts reflect incremental additions of salt to the 14 San Joaquin River via the joint point of diversion water? 15 MR. ROBINSON: Yes, they do. They also demonstrate 16 incremental reductions in the amount of salt to the San 17 Joaquin River in some cases, particularly, with 18 implementation of the plan. 19 MR. NOMELLINI, JR.: Maybe one more quick one here. 20 Alternative 8 contemplates the maximum use of joint point 21 of diversion and, thereby, the maximum deliveries of joint 22 point of use water; is that correct? 23 MR. RENNING: Yes, that's right. 24 MR. NOMELLINI, JR.: So it seems like the more joint 25 point of diversion water, the more that water was CAPITOL REPORTERS (916) 923-5447 11356 1 delivered to areas which drained into the San Joaquin 2 River one would expect the more that alternative would 3 drain salts into the San Joaquin River and, thereby, 4 impact the Vernalis salinity standard; is that a fair 5 statement? 6 MR. ROBINSON: Well, I guess in response in my quick 7 look at the graphs, I would say that the salinity patterns 8 seen throughout the various water year types in the San 9 Joaquin River at Airport Bridge follow my earlier 10 testimony that basically the greatest deal of change 11 occurs as a result of the implementation of the plan and 12 subsequent joint points of alternative use made very 13 little difference in predicted values. 14 MR. NOMELLINI, JR.: I understand that and that's 15 the precise finding I was trying to investigate, whether 16 that conclusion considered the incremental salt load as a 17 result of where the joint point of diversion water was 18 delivered? 19 MR. ROBINSON: I think I'll go back to Mr. Renning, 20 you know, specifically where this water is in a 21 site-specific basis, you know, what happens with an 22 additional cfs of water and the effect upon salinity these 23 analyses are not designed to look at time steps or 24 geographic locations in that manner, no. 25 MR. NOMELLINI, JR.: In an effort not to injury any CAPITOL REPORTERS (916) 923-5447 11357 1 legal user of water, would the panel be agreeable to a 2 condition which required the projects to mitigate any 3 adverse impacts to the Vernalis salinity standard caused 4 by the joint point of diversion proposal? 5 MR. RENNING: Well, I think the whole issue of 6 salinity in the San Joaquin Valley was addressed in 7 Phase V of this hearing. And that -- and how that issue 8 is going to be addressed on the long-term is going to be a 9 matter that is going to involve a number of agencies and 10 many of the water users in the San Joaquin Valley. 11 I don't think that placing a particular condition 12 upon Reclamation's permits would necessarily be the 13 primary factor in resolving those problems. 14 MR. NOMELLINI, JR.: Notwithstanding the fact that 15 it might not be the primary factor in resolving those 16 problems, would you, Mr. Renning, be agreeable to 17 including such a condition in your joint point of 18 diversion proposal? 19 MR. TURNER: I have to object, Mr. Stubchaer. John 20 Renning is not the official in the Bureau of Reclamation 21 who would make that determination. He certainly would 22 have his own personal recommendation, but I don't think he 23 can talk on behalf of the Bureau in connection with that 24 issue, which I don't know it's been discussed with the 25 decision makers. CAPITOL REPORTERS (916) 923-5447 11358 1 C.O. STUBCHAER: We'll go back to what we said 2 before: Witnesses are only supposed to answer questions, 3 need only to answer questions within their knowledge. And 4 if you can't answer the question, don't have the 5 authority, so state. 6 MR. RENNING: I'm not in a position to answer that 7 question, Mr. Nomellini. 8 MR. NOMELLINI, JR.: In an effort not to injury any 9 legal user of water would the panel be agreeable to a 10 condition which would prohibit the projects' use of joint 11 point of diversion if the joint point of diversion 12 adversely impacts the Vernalis salinity standard and the 13 projects are unable to adequately mitigate the impacts on 14 the Vernalis salinity standard? 15 That's for the panel, but -- 16 MR. RENNING: Well, I think the kind of standard 17 that you have proposed there doesn't sound like a workable 18 standard, because it would require that there be some way 19 of directly connecting something that is happening at 20 Vernalis to the use of the joint point of diversion. And 21 I don't think that can be, technically, done. 22 MR. THABAULT: Let me answer. Mr. Nomellini, I 23 think as a panel has stated in our proposal we're 24 committed to working through the ultimate process with 25 CalFed in terms of looking at ways of resolving drainage CAPITOL REPORTERS (916) 923-5447 11359 1 issues, contaminant issues in the San Joaquin. And I 2 think in my testimony I stated that we are committed in 3 working through that process to ensure that legal users of 4 water are not harmed as a result of implementation of this 5 proposal. 6 So to that extent, yes, we are committed to 7 working through that, but have not given specific 8 considerations of conditions before the Board at this 9 time. 10 MR. NOMELLINI, JR.: Mr. Renning, if I could just 11 follow up, you said that it wasn't clear that there is a 12 link -- this is paraphrasing and I hope you correct me -- 13 it wasn't clear that there was a link between the joint 14 point of diversion and the Vernalis salinity standard. 15 Could you, please, clarify? I know that wasn't exactly 16 what you said. 17 MR. RENNING: Well, I think the situation might be 18 something like this: We, Reclamation, would use the joint 19 point of diversion, say, in January of a particular year. 20 In January of most years the Vernalis salinity standard is 21 very easily met, there's lots of flows at that time. How 22 you would tie pumping that was done in that month to some 23 future time at which the salinity standard was not met, I 24 don't know how you would do that. 25 MR. NOMELLINI, JR.: Is it possible to use the joint CAPITOL REPORTERS (916) 923-5447 11360 1 point of diversion water that was obtained, for example, 2 in the month of January and release that joint point of 3 diversion water back into the San Joaquin River and 4 thereby help improve the Vernalis salinity standard? 5 MR. RENNING: Well, here you're talking about the 6 recirculation alternative and we've already had witnesses 7 that have talked about Reclamation's position on that 8 alternative. 9 MR. NOMELLINI, JR.: I wasn't actually assuming that 10 you are going to get to recirculate that water. I was 11 asking if that joint point of diversion water, once it has 12 been exported can be returned to the San Joaquin River 13 regardless of whether you in fact repump that water? 14 MR. RENNING: Yes, your definition or your 15 description of that alternative or that situation, while 16 it may not necessarily be recirculation, the problems that 17 we've identified with the recirculation alternative would 18 also be present with the kind of operational situation 19 that you're describing. 20 MR. NOMELLINI, JR.: Mr. Renning, in your testimony, 21 which is Exhibit 10, Page 1, the first paragraph, you 22 state that you helped prepare the draft chapter which was 23 subsequently used by the Board staff to prepare Chapter 13 24 of the Draft EIR; is that correct? 25 MR. RENNING: Yes, I and a number of other people at CAPITOL REPORTERS (916) 923-5447 11361 1 Reclamation helped prepare the -- a draft chapter that was 2 given to the State Board -- State Board staff, I'm sorry. 3 MR. NOMELLINI, JR.: In the Draft EIR, Chapter 13, 4 Page 34, it states, 5 (Reading): 6 "Regardless of the cause in salinity 7 variations among the alternatives, in all of 8 the alternatives the State Water Project and 9 the CVP will always operate to ensure that the 10 objectives, excluding perhaps the southern 11 Delta objectives, are achieved. Therefore, 12 there should be no significant effects 13 associated with implementation of the joint 14 point of diversion alternatives in comparison 15 to the base case for these stations." 16 Did you draft those statements? 17 MR. RENNING: I'm not sure if that particular 18 language was included in our draft, but I believe that 19 those statements are accurate. 20 MR. NOMELLINI, JR.: Therefore, you agree with those 21 statements? 22 MR. RENNING: Yes. 23 MR. NOMELLINI, JR.: Could you tell me what are the 24 southern Delta objectives to which this statement is 25 referring and, perhaps, excluding? CAPITOL REPORTERS (916) 923-5447 11362 1 MR. RENNING: We're talking about the Vernalis 2 standard. 3 MR. NOMELLINI, JR.: You're talking about the 4 Vernalis salinity standard? 5 MR. RENNING: Yes. Yes. 6 MR. NOMELLINI, JR.: Are you talking about the 7 other -- I believe there are three more -- at least three 8 more South Delta agricultural standards? 9 MR. RENNING: The other interior standards are -- 10 are, in part, tied to whether the Vernalis standard is met 11 and whether there are facilities in place in the southern 12 Delta that allow those standards to be met. There are 13 situations where the interior Delta standards simply 14 cannot be met because of local flow conditions. 15 MR. NOMELLINI, JR.: That may get to my next 16 question, but let me ask it: Why is the Vernalis salinity 17 standard, perhaps, excluded from the projects' guarantee, 18 so to speak, to ensure that the objectives are achieved? 19 MR. RENNING: Well, this goes back to what 20 Reclamation has testified to in other phases of this 21 hearing. That through the actions of the northern units 22 of the CVP and the export facilities, we don't have the 23 ability to affect water quality at Vernalis. We can only 24 do that through New Melones. 25 And we know that there are circumstances under CAPITOL REPORTERS (916) 923-5447 11363 1 which attempting to meet that standard is going to result 2 in impacts to other uses. And we have developed an 3 Interim Operation Plan that we feel reasonably addresses 4 all of the uses that are met from New Melones, including 5 the standards -- the salinity standards at Vernalis. And 6 we don't meet all of those things all of the time. 7 MR. NOMELLINI, JR.: Is it your testimony that the 8 only way for the CVP to meet and maintain the Vernalis 9 salinity standard is through New Melones, is through 10 releases through New Melones Reservoir? 11 MR. RENNING: There are other alternatives that are 12 addressing this, for instance, the recirculation 13 alternative. But as we have testified to earlier in this 14 hearing, there are certain problems with that that need to 15 be investigated before the feasibility of that alternative 16 is proven. 17 MR. NOMELLINI, JR.: Isn't it true that releases 18 from Friant into the San Joaquin River could help the CVP 19 meet and maintain the Vernalis salinity standard? 20 MR. TURNER: I have to object again, Mr. Stubchaer. 21 I think I've been -- 22 C.O. STUBCHAER: Sustained. 23 MR. TURNER: Okay. We were sort of going off the 24 topic. 25 C.O. STUBCHAER: We're going back to Phase V, CAPITOL REPORTERS (916) 923-5447 11364 1 Mr. Nomellini. 2 MR. NOMELLINI, JR.: Okay. Sticking right on the 3 joint point of diversion, isn't it true that joint point 4 of diversion water could be released back into the San 5 Joaquin River to help maintain and help meet the Vernalis 6 salinity standard? 7 MR. BIRMINGHAM: Objection. Asked and answered. 8 C.O. STUBCHAER: Sustained. That question was asked 9 and answered. 10 MR. NOMELLINI, JR.: I'm not sure if I asked: What, 11 if anything, would prevent the CVP from returning joint 12 point of diversion water back into the San Joaquin River? 13 MR. RENNING: Well, I suppose there's nothing 14 preventing us from doing that, except that we would have 15 to decide to do that and in our decision to do it we would 16 have to weigh all of the pros and cons of doing that. And 17 as I stated before, we have already identified a number of 18 problems with the recirculation alternative that need to 19 be studied before we can make such a decision. 20 MR. NOMELLINI, JR.: For the purposes of the studies 21 to evaluate joint point of diversion alternatives, it was 22 assumed in terms of priority of demands that the Cross 23 Valley Canal contract would be met first; is that your 24 understanding? 25 MR. RENNING: Yes, that's right. CAPITOL REPORTERS (916) 923-5447 11365 1 MR. NOMELLINI, JR.: And could you clarify why is 2 the priority of that joint point of diversion water given 3 to the Cross Valley Canal contractors? 4 MR. RENNING: The reason that we made that 5 assumption in the studies is because that contract is tied 6 directly to the use of Banks. And we felt because of that 7 precedent that that was the proper way to do this 8 analysis. 9 MR. NOMELLINI, JR.: So in this proposal that we 10 don't quite know the details of, is it also true that the 11 Cross Valley Canal would have the first priority to the 12 joint point of diversion water? 13 MR. RENNING: That was the assumption that was made 14 in all of the alternatives that we investigated. 15 MR. NOMELLINI, JR.: And you agree your proposal 16 will also have that assumption? 17 MR. RENNING: Yes, that's right. 18 MR. NOMELLINI, JR.: I think this is from your 19 testimony, Mr. Renning, it's the same as the prior 20 statement, but same page. I believe it's Page 3, Exhibit 21 10, paragraph two. It states, 22 (Reading): 23 "The additional CVP water exported above the 24 Central Valley Canal contract amount would be 25 used to reduce storages imposed primarily on CAPITOL REPORTERS (916) 923-5447 11366 1 agricultural and environmental demands." 2 And my question is: What are these environmental 3 demands to which you are referring? 4 MR. RENNING: Okay. My statement is to reduce 5 shortages imposed on ag and environmental demands. And 6 that would be for -- in the model, the use of the joint 7 point of diversion was used to reduce deficiencies that 8 are imposed upon our agricultural contracts and upon the 9 deliveries that we make to the environmental demands in 10 the San Joaquin Valley which are primarily wildlife 11 refuges. 12 MR. NOMELLINI, JR.: So to further refine that, do 13 these environmental demands include any of the 1995 Water 14 Quality Control Plan standards on the San Joaquin River 15 and, if not, why not? 16 MR. RENNING: No. These demands are the wildlife 17 refuges that, in essence, we have contracts or obligations 18 to supply water to. And to use this water to meet 19 standards on the San Joaquin River, we're back, again, to 20 the recirculation plan which I've already testified as to 21 our position. 22 MR. NOMELLINI, JR.: Has the Bureau ever released 23 water that was exported from the Delta back into the San 24 Joaquin River in order to help meet the various standards 25 on the San Joaquin River? CAPITOL REPORTERS (916) 923-5447 11367 1 MR. RENNING: There have been times where we have 2 undertaken actions with some of our contractors to make 3 releases from their facilities, or from CVP facilities to 4 the San Joaquin River. These were done in the last 5 several years and we're still in the process of evaluating 6 what was done at that time. 7 MR. NOMELLINI, JR.: One last question on this 8 topic: How will the joint point of diversion water in 9 excess of the Cross Valley Canal amount be divided among 10 the various agricultural, urban and environmental needs? 11 MR. RENNING: That's an issue that's going to be 12 addressed by the plan that's being developed in the CalFed 13 process. 14 C.O. STUBCHAER: Mr. Nomellini, how much more time 15 do you think you will need? 16 MR. NOMELLINI, JR.: I'm almost over the hump. I'd 17 say about an hour at least. 18 C.O. STUBCHAER: We're about an hour and a half, I 19 think, that will give you two and a half hours. Will you 20 stipulate to the hour? 21 MR. NOMELLINI, JR.: If I have to. Due process. 22 C.O. STUBCHAER: Well, we don't want to deprive 23 people of due process, but also in the interest of trying 24 to keep things moving along, an hour I think ought to be 25 enough time. But if you don't want to stipulate, we'll CAPITOL REPORTERS (916) 923-5447 11368 1 ask you again in half an hour, but we will ask you to be 2 expeditious in the cross-examination. 3 MR. NOMELLINI, JR.: It appears that it will go 4 quicker after I get over another hump. And I'll do my 5 best to streamline this. I'll keep it short. Thank you. 6 On to fishery impacts from the proposal, can 7 someone on the panel, please, briefly describe the methods 8 by which export pumping can potentially harm fish? 9 Briefly. 10 MR. FORD: There's a number of different ways. 11 There is direct losses of fish being entrained in the 12 facilities, some of those -- the smaller fish might go 13 through the screens, other fish are eaten, probably the 14 bulk of the fish at least in Clifton Court is probably 15 being eaten by predators, striped bass, primarily. 16 There's reverse flow effects at certain times of 17 the year. It's aggravated by pumping at some times. 18 There is part of the facilities with operations extending 19 down a little bit further from the facilities, there are 20 also some facilities in the north Delta with the Cross 21 Valley Canal which are put in there to aid the transport 22 of water that brings fish into the Central Delta where 23 Fish and Wildlife evaluations is showing that survival is 24 worst that for some species of fish. The exports can also 25 move X2 which has been associated with the abundance of CAPITOL REPORTERS (916) 923-5447 11369 1 some species. That's it in the a nutshell. 2 MR. NOMELLINI, JR.: Is there ever a time when 3 export pumping will not adversely impact some fish at 4 least to some degree? This is for the panel. 5 MR. FORD: Could you repeat that question again? 6 MR. NOMELLINI, JR.: Yes. Is there ever a time when 7 export pumping will not adversely impact some fish at 8 least to some degree? 9 MR. BIRMINGHAM: I'm going to object to the question 10 on the grounds of relevance. Perhaps, if Mr. Nomellini 11 were asking about the additional pumping as a result of 12 the joint point, I could understand the relevance. But 13 the Board has already determined that it's in the public 14 interest to allow export pumping from the Delta. And this 15 question is -- 16 C.O. STUBCHAER: Well, Mr. Nomellini, could you make 17 a tie between the subject of this hearing, Phase VI, and 18 your question? 19 MR. NOMELLINI, JR.: My next question was going to 20 directly tie that, but it would be nice if I could get an 21 answer to that question, but if it's not appropriate 22 that's fine. But I wanted to ask a general question: 23 Is there ever a time when export pumping -- 24 C.O. STUBCHAER: Is that laying the foundation for 25 the next question? CAPITOL REPORTERS (916) 923-5447 11370 1 MR. NOMELLINI, JR.: Yes. 2 C.O. STUBCHAER: Tell me the next question. 3 MR. NOMELLINI, JR.: Okay. The next question is: 4 The panel's joint point of diversion proposal contemplates 5 that there will be times of total greater export pumping 6 than there would have been if joint point of diversion was 7 not allowed; is that correct? 8 C.O. STUBCHAER: Well, I don't see a tie between the 9 previous question and this one, so why don't you just 10 stick to this last one. 11 MR. NOMELLINI, JR.: Should I repeat the last one? 12 C.O. STUBCHAER: Yes. 13 MR. NOMELLINI, JR.: The panel's joint point of 14 diversion proposal contemplates that there will be times 15 when there will be greater total export pumping than there 16 would have been if joint point of diversion was not 17 allowed. Is that a correct statement, from anyone on the 18 panel? 19 MR. WHITE: Yes, that is a correct statement. 20 MR. NOMELLINI, JR.: Thus, during those times when 21 the panel's joint point of diversion proposal allows more 22 total export pumping than would be allowed if joint point 23 of diversion were not authorized, are the fish better off 24 with the panel's joint point of diversion proposal, or are 25 they better off without joint point of diversion? This is CAPITOL REPORTERS (916) 923-5447 11371 1 for anyone on the panel. 2 MR. FORD: Could you clarify which fish you're 3 speaking of, which life stage? 4 MR. NOMELLINI, JR.: I'm talking all fish, any life 5 stage. Just a basic question: Are fish in general better 6 off? And I would appreciate it if you could clarify which 7 fish are better off, or -- 8 MR. WHITE: I would say that is a question that is 9 not possible to answer on an instantaneous basis. I 10 believe this whole concept that we are engaged in 11 discussing requires that we look broadly across the 12 seasons and that we try to examine the integration of the 13 effects on different species and life stages across the 14 whole period of time when they may or may not be affected 15 and trying to achieve the best balance of that. 16 MR. NOMELLINI, JR.: It's my guess that there's sort 17 of a balance, but I was wondering: Are fish ever better 18 off with the panel's joint point of diversion proposal 19 which allows more total export pumping at times than would 20 be allowed without the joint point of diversion proposal, 21 or are they better off -- 22 C.O. STUBCHAER: Just stop there. 23 MR. THABAULT: The diversion affects on fisheries 24 team, CalFed has identify the joint point of diversion as 25 a tool to offer flexibility in the system to make things CAPITOL REPORTERS (916) 923-5447 11372 1 better for certain species at certain times by moving 2 pumping to a less sensitive period so that you can reduce 3 exports or other project affects at other times of the 4 year. So the intention is, yes, to utilize joint point to 5 some extent to make things better for some species some 6 times. 7 MR. NOMELLINI, JR.: Does that necessarily mean that 8 some species will be adversely impacted to help benefit 9 other species? 10 MR. THABAULT: It is not the intent to transfer 11 impacts to other resources. We have, certainly, as in any 12 situation, any environmental situation, any water 13 allocation situation, or any water quality situation you 14 need to make decisions on a realtime basis. Sometimes you 15 cannot predict the future, but it's certainly not the 16 intent to transfer impacts. 17 MR. NOMELLINI, JR.: I was trying to zero in on the 18 times when the joint point of diversion proposal will 19 authorize more exports than there would be without the 20 joint point of diversion proposal. 21 I want to focus, if we can, just on those times. 22 And I simply want to know: Is it true that fish, in 23 general, would be better off without that incremental 24 increase in export pumping? 25 MR. THABAULT: Well, I mean as indicated by some of CAPITOL REPORTERS (916) 923-5447 11373 1 Mr. Renning's exhibits there is some level of joint point 2 in almost every month of the year as identified in the 3 DEIR, if I recall. 4 Again for what purpose the joint point is being 5 used -- I mean if you're specifically targeting that joint 6 point for fish and which times of the year that would be 7 identified, could you narrow it down a little bit more? 8 MR. NOMELLINI, JR.: The answer of my global 9 question would have focused it, but: Are fish always 10 impacted by export pumping? 11 MR. THABAULT: To the extent that fish are present 12 in the Delta, there are some fish that are affected by 13 export pumping, yes. 14 MR. NOMELLINI, JR.: Is there ever a time that 15 export pumping takes place and fish are not present in the 16 area? 17 MR. THABAULT: There are always some fish species 18 present in the Delta. Export pumping affects some species 19 of fish in every year -- or every month of the year. Not 20 all of those are necessarily sensitive species, not all of 21 those are necessarily native species. 22 MR. NOMELLINI, JR.: I appreciate that distinction, 23 but I was asking, and I think you answered, that any 24 export pumping adversely impacts fish because fish of some 25 sort are always in the vicinity; is that correct? CAPITOL REPORTERS (916) 923-5447 11374 1 MR. THABAULT: I didn't quantify it to adverse. 2 MR. NOMELLINI, JR.: Do you wish to state anything 3 else? 4 MR. THABAULT: No. 5 MR. NOMELLINI, JR.: So let's take out the word 6 "adverse." Would you agree that export pumping will 7 always impact fish? 8 MR. THABAULT: To a certain -- to a certain extent, 9 sure. Yeah. 10 MR. NOMELLINI, JR.: You don't think export pumping 11 would always adversely impact fish? 12 MR. THABAULT: I mean you take a species like inland 13 silver sides, which is a nonnative and a highly predatory 14 fish, and there's tons of them out there to the affect 15 that exports may affect the species, but I would not 16 necessarily quantify that as an adverse effect. 17 MR. NOMELLINI, JR.: Okay. Maybe I'll clarify -- 18 I'm not putting any quantification on the adverse effect, 19 I'm simply asking: If it injures one fish then I'm 20 considering that an adverse impact. 21 MR. BIRMINGHAM: Objection. Mr. Nomellini is now 22 making argument. 23 C.O. STUBCHAER: I think you would have to pose that 24 as a hypothetical. If it can be, I'm not sure it can be 25 posed as a hypothetical. CAPITOL REPORTERS (916) 923-5447 11375 1 MR. NOMELLINI, JR.: During which months of the year 2 will the joint point of diversion proposal that you're 3 asking this Board to authorize, which months of the year 4 will your proposal result in an increase in export pumping 5 over that which would exist without your joint point of 6 diversion proposal? 7 MR. THABAULT: I think, again, as identified by 8 Mr. Renning's exhibits, theoretically the joint point 9 could be used in virtually any month of some year types. 10 MR. NOMELLINI, JR.: So in any month of the year 11 there may be an increase in exports as a result of your 12 joint point of diversion proposal than there would be in 13 the absence of your joint point of diversion proposal? 14 MR. THABAULT: Under certain hydrologic conditions, 15 taking into consideration water quality, other 16 environmental conditions such as biological opinions, et 17 cetera, et cetera, yes. 18 MR. NOMELLINI, JR.: The Draft EIR, Chapter 13, Page 19 9, the fourth paragraph, states, 20 (Reading): 21 "However, for all the alternatives there's 22 potentially a negative effect from entrainment 23 for the joint point of diversion alternatives 24 with respect to Alternative 2. Part of the 25 positive effect of implementation of the 1995 CAPITOL REPORTERS (916) 923-5447 11376 1 Bay-Delta Plan is eliminated by implementing 2 the joint point of diversion alternatives." 3 Does the panel agree with that statement? 4 MR. ROBINSON: Could you provide us with that 5 reference again? There's only two paragraphs on Page 9. 6 MR. THABAULT: Page 13-9 is what we're looking at. 7 MR. NOMELLINI, JR.: I might have misquoted the 8 page. Sorry, it's Page 39 of Chapter 13, fourth 9 paragraph. Does the panel agree with that statement? 10 MR. THABAULT: We can certainly highlight on the 11 word "potentially," yes, but what we are proposing is that 12 by virtue of the fact that the alternative that would be 13 developed is supposed to take into account recovery and 14 restoration of fish species within the context of the 15 joint point. So I would say potentially, yes, but it's 16 not the intention of the VAMP. 17 MR. NOMELLINI, JR.: Okay. 18 MR. ROBINSON: I guess I would also summarize that 19 the intent of this paragraph was to recognize that, you 20 know, to the extent that your question is about 21 entrainment and individual fishes, yes, we recognize that 22 when we pump we entrain fish. 23 The second half of that sentence, you know, is to 24 also recognize that the joint point of diversion allows us 25 to take actions at times when sensitive species are in CAPITOL REPORTERS (916) 923-5447 11377 1 place within the Delta and subsequently have the ability 2 to make up some of that water. 3 MR. FORD: Could I -- Steve Ford. I'd also like to 4 add -- and maybe by way of example, with last -- last fall 5 a lot of people I think heard in the press, you know, the 6 problems we were having with the mitten crab down there. 7 And when those things came in, it cut down the salvage of 8 the fish into the spring almost entirely. 9 We would have been a lot better off if we had the 10 ability to do a rapid -- you know within a day or two, the 11 ability to shift the pumping to another facility. We 12 weren't having nearly the problems at the state facility. 13 And we lost a lot of fish at the Central Valley Project as 14 a result of that. We weren't able to do it with -- I 15 don't believe that we were able to do it with the existing 16 facilities and the authorizations that we had to meet for 17 joint point at that time. 18 I might be wrong about that, but in the sense it 19 all came in over a weekend and we needed the executive 20 officer's approval and the buy off of all of CalFed. Now, 21 you know, that's an example of where this shift -- you 22 know, had it occurred, we would have been able to clean 23 out the crab, or at least moved the pumping to another 24 facility until the problem went away. 25 MR. NOMELLINI, JR.: I appreciate that and I can CAPITOL REPORTERS (916) 923-5447 11378 1 understand the benefits of the joint point of diversion 2 proposal which allow one pump to use the other pump at 3 times when it would benefit fish. But what I was trying 4 to zero in on is the other aspect of your proposal which 5 says that at certain times the proposal will authorize 6 more exporting than would be there without the proposal. 7 And I was trying to understand how the fishery 8 agencies accept that. It appears to be a tradeoff of some 9 sort. 10 MR. THABAULT: What we are proposing is in the 11 context of the CalFed and the mass balance of CalFed that 12 there are numerous, numerous positive aspects of that 13 program that are to be implemented for the purposes of 14 restoration and recovery of fish. 15 So in the context of joint point and incremental 16 affects on water supply and the operation's plan to 17 minimize affects on fish, the potential benefits of using 18 joint point under circumstances for fish we believe it is 19 appropriate to go to that process. And, in balance, as a 20 piece of that puzzle, the joint point is appropriate. 21 MR. NOMELLINI, JR.: Which brings me to the 22 question: Will the fishery agencies on this panel go 23 along with the joint point of proposal if the proposal 24 does not result in a net benefit to aquatic resources? 25 MR. THABAULT: If the proposal goes forward -- and I CAPITOL REPORTERS (916) 923-5447 11379 1 will speak for the Fish and Wildlife Service on this 2 particular instance. If the proposal goes forward as the 3 panel is suggesting and CalFed does not come up with a 4 program that does not benefit fish, then that program 5 would likely not come before the Board and not be 6 implemented as we're suggesting. 7 MR. WHITE: I would agree with that answer. 8 MR. NOMELLINI, JR.: If that's true, then would the 9 panel be agreeable to adding a condition to the Board's 10 approval of the panel's joint point of diversion proposal 11 stating that the joint point of diversion proposal will 12 not be allowed unless the proposal will result in a net 13 benefit to aquatic resources? Why or why not? Anybody. 14 MR. THABAULT: Again, separating putting joint point 15 in the context of the overall proposal, I think we are 16 suggesting that such a plan would not come before the 17 Board if the overall proposal did not benefit fish. 18 I don't know if the panel would isolate joint 19 point in and of itself that says if joint point in and of 20 itself does not benefit fish, that's not what the panel is 21 proposing. The panel is proposing a use of the joint 22 point up to the capacity of the projects in the context of 23 a broader plan which is going to benefit fish. 24 MR. NOMELLINI, JR.: Okay. As a member of the 25 fishery -- Fish and Wildlife Service, I believe you stated CAPITOL REPORTERS (916) 923-5447 11380 1 you have a veto power in this coordination team composed 2 of DEFT and the No Name Group; is that correct? 3 MR. THABAULT: I don't believe I put it in the 4 context of a veto power, but I would say we are a key 5 player within the process, yes. 6 MR. NOMELLINI, JR.: Will you, as a representative 7 of the Fish and Wildlife, veto any joint point of 8 diversion proposal that does not demonstrate that the 9 proposal will result in a net benefit to fish? 10 MR. THABAULT: Again, in the context of what we're 11 proposing I don't think the Service will focus on an 12 individual aspect of the plan and veto that plan. 13 Certainly, if the CalFed process does not develop a plan 14 consistent with its purposes, goals and objectives, which 15 is the restoration and recovery of certain species, the 16 Service will be in opposition to such a plan. 17 MR. NOMELLINI, JR.: So if I could refine that, it's 18 possible that the Service would go along with the joint 19 point of diversion if it results -- rather, if it does not 20 result in a net benefit to fish. And the reason would be 21 because the Service is looking at the big picture and, 22 perhaps, other aspects will greatly benefit fish and 23 therefore they wouldn't be too concerned about this 24 project's impacts. 25 MR. CAMPBELL: Objection. Vague. CAPITOL REPORTERS (916) 923-5447 11381 1 C.O. STUBCHAER: Was that -- I guess -- 2 MR. NOMELLINI, JR.: I could clarify that. 3 C.O. BROWN: I understood it. 4 C.O. STUBCHAER: Yeah, I think I understood it, too, 5 but you didn't say, "Is that right" yet I guess. 6 MR. NOMELLINI, JR.: Is that right? 7 MR. THABAULT: To the extent that I understand the 8 question: Will the Service focus on this particular 9 aspect in the CalFed program and be looking at the big 10 picture to see if it benefits fish? If that's the 11 question, the answer is, yes, the Service is looking at 12 the overall program, believes that this is a small but 13 important piece of the program, it can be used for that 14 beneficial purposes. And I think I'll leave it at that. 15 MR. NOMELLINI, JR.: Does it follow from that 16 statement that the fish -- or rather that it's possible 17 that the Fish and Wildlife will go along with the joint 18 point of diversion proposal and, thereby, not veto it if 19 the joint point of diversion proposal does not result in a 20 net benefit to fish? 21 MR. TURNER: That's been asked and answered. 22 MR. NOMELLINI, JR.: Okay. The answer has been a 23 little ambiguous, but -- 24 C.O. STUBCHAER: Mr. Nomellini, it's time for our 25 morning break. We'll take a 12-minute break. CAPITOL REPORTERS (916) 923-5447 11382 1 (Recess taken from 10:27 a.m. to 10:45 a.m.) 2 C.O. STUBCHAER: Come back to order. 3 Mr. Nomellini, again I'm going to ask for an 4 estimate of the time you think you'll need. 5 MR. NOMELLINI, JR.: I believe I'm over the hump and 6 I would say in half an hour or less. 7 C.O. STUBCHAER: Fine. Proceed -- I'll just cover a 8 couple of procedural points. Just stay there. 9 After Mr. Nomellini's examination is concluded we 10 will then hear the amplification on Mr. Renning's 11 testimony that Mr. Turner offered at the beginning of 12 today's session on Alternative 9 on the joint point I 13 think that's what it was on. 14 MR. TURNER: Thank you, Mr. Stubchaer. 15 C.O. STUBCHAER: And the order of cross-examination 16 after Mr. Nomellini will be Mr. Sexton, Mr. Birmingham, 17 Mr. Suyeyasu, Mr. Dooley. 18 Please, proceed, Mr. Nomellini. 19 MR. NOMELLINI, JR.: I want to ask the panel some 20 questions about, I believe, it's the Department of the 21 Interior's Exhibit 11-N. 22 MR. GAGE: Okay. 23 MR. NOMELLINI, JR.: I wanted an explanation from 24 the panel about why the percentages from Alternatives 2 25 through 9 in the various figures on this exhibit, why are CAPITOL REPORTERS (916) 923-5447 11383 1 they so similar? 2 MR. ROBINSON: Well, I think it's just -- it's a 3 result of the hydrology that's driving these models for 4 all the various joint point alternatives. That's just 5 basically how the results come out to be. 6 MR. NOMELLINI, JR.: So are those assumptions 7 regarding hydrology, those assumptions are the same for 8 all alternatives, 2 through 9? 9 MR. ROBINSON: No. It's the results that are very 10 similar. The hydrology is different. The assumptions of 11 the models are consistent. The one thing that changes -- 12 you know, the temperatures that are assumed to exist 13 within the given months when these particular models deal 14 with is maintained the same from one alternative to the 15 next. It's basically the changes in the hydrology. 16 C.O. STUBCHAER: Mr. Campbell. 17 MR. CAMPBELL: Mr. Chairman, when Dr. Kjelson was 18 allowed to sit on the panel, at that time acting Chair 19 Mr. Brown directed that he not be allowed to answer any 20 questions without first checking with the Chair. 21 We'd just like to point out that this is 22 Dr. Kjelson's model and he may be able to shed some 23 additional light on it if the Chair would like to hear. 24 C.O. BROWN: If you want to let him. 25 C.O. STUBCHAER: Without relying on the December CAPITOL REPORTERS (916) 923-5447 11384 1 data, Mr. Kjelson? 2 DR. KJELSON: Yes, without relying on the December 3 data. 4 C.O. STUBCHAER: All right. 5 DR. KJELSON: I think the only thing I would add is 6 my understanding the EIS was -- or EIR was developed with 7 our fall-run model that we put out in 1989. The main 8 coefficients in that model are temperature, percent 9 diverted off the Sacramento River and export. 10 And while I haven't looked at the details of that 11 analysis relative to the question asked, my guess is that 12 the coefficient in that equation for exports probably has 13 a very small affect on these survivals that come out. And 14 those other factors may have a greater affect, but they're 15 pretty darn stable in the assumptions that were used in 16 the analysis. And that's why it came out. That's my 17 thought. 18 C.O. STUBCHAER: Dr. Kjelson, was this the result of 19 a multiple regression analysis? 20 DR. KJELSON: Yes, it was. 21 C.O. STUBCHAER: Okay. Thank you. 22 MR. NOMELLINI, JR.: Does anyone on the panel know 23 what the number of fish entrained at the pumps would be 24 under the various alternatives? 25 MR. ROBINSON: That kind of thing is not derivable CAPITOL REPORTERS (916) 923-5447 11385 1 from these studies. However, I would say that given 2 since -- with something like the winter-run that take 3 limitations would be in place on a year-to-year basis, you 4 can't -- that was one of the problems that we had in 5 modeling the effects of the resources is when those events 6 would take place. Yet, we also recognized on a 7 year-to-year basis take limitations would be in place that 8 are not necessarily in the models but that would in turn 9 limit exports. 10 MR. NOMELLINI, JR.: This is for the panel: Based 11 on the panel's expertise, would you expect that 12 entrainment of salmon would be higher in the alternatives 13 that allow for greater export pumping? 14 MR. WHITE: I think it would be correct to say that 15 on any given day, given the distribution of the fish in 16 the vicinity of the export facilities that an incremental 17 increase in transport rate would increase the entrainment 18 of fish basically in proportion to the volume of increased 19 diversion. 20 MR. FORD: And I guess I had a little bit of a 21 different view on that. But to the degree -- you know, 22 some of these assumptions, the Head of Old River Barrier, 23 for example, in 7 and 8 have that in there. The bulk of 24 the entrainment of salmon are thought to be San Joaquin 25 salmon. CAPITOL REPORTERS (916) 923-5447 11386 1 To the extent that those fish -- the Head of Old 2 River Barrier would keep those fish away from the pumps 3 for a longer period of time, entrainment, in my opinion 4 could go down. We have certainly seen that in the last 5 few years when the temporary barriers have been in. 6 But I think that -- especially these, 7 and 8, 7 we're changing the configuration of the Delta so much that 8 it's really hard to predict what the densities of the fish 9 and the distribution of the fish at that time would be 10 and particularly given the uncertainty of, you know, what 11 the actually plan would be associated with that. 12 I guess I would see that kind of evaluation to be 13 going on in greater detail, or be able to be carried out 14 in greater detail as CalFed rolls out their alternatives 15 and they get into these subsequent EIRs on project 16 specific things, that we'll have the whole package in 17 front of us and then those kinds of details could be 18 evaluated in greater detail. At this point, I think this 19 is about -- the EIR has presented about the best that 20 could be done as far as the quantitative analysis. 21 MR. WHITE: I guess to elaborate on my answer, as I 22 testified earlier it is never possible to predict the 23 temperal pattern of occurrence of fish at the pumps. And 24 what we found through experience in recent years is that 25 there are wide variations in that pattern, particularly in CAPITOL REPORTERS (916) 923-5447 11387 1 the fall, the time when salmon begin to appear in the 2 Delta. 3 It depends a lot on the hydrology. If you had a 4 series of storms, fish tend to -- the juvenile salmon tend 5 to move downstream and you find them in the Delta. If the 6 fall tends to be dry, fish tend not to move. So there's a 7 considerable amount of variation and part of the concept 8 that we advance is that if your monitoring is adequate to 9 detect that variation, you focus your protective efforts 10 at the times when they are needed and target your 11 protection measures that way. 12 MR. NOMELLINI, JR.: I'm going to change topics. In 13 the Draft EIR, Chapter 13, Page 7, the third paragraph 14 it's under the heading "The SWP and CVP Delivery Impacts," 15 it states, 16 (Reading): 17 "As modeled, the SWP receives no benefit for 18 the combined use of points of diversion because 19 the SWP never uses the CVP pumping facilities. 20 In real operation, the SWP may occasionally use 21 the CVP facilities, if necessary, for fish 22 protection but such an operation is likely to 23 be rare." 24 And my question is: What precisely are the State 25 Water Projects incentives to go along with this joint CAPITOL REPORTERS (916) 923-5447 11388 1 point of diversion proposal? 2 MR. GAGE: I'm sorry, I missed the question. Could 3 you repeat it, please? 4 C.O. STUBCHAER: Just the last part of it should be 5 sufficient. 6 MR. NOMELLINI, JR.: Just the question. Did you 7 follow the statement that I read from the Draft EIR? 8 MR. GAGE: No, I did not. I'm sorry. I apologize. 9 MR. NOMELLINI, JR.: Begins with "as modeled." 10 MR. GAGE: Because the SWP never uses the CVP 11 pumping facilities -- 12 MR. RENNING: Ask the question again. 13 MR. NOMELLINI, JR.: Yeah, my question was: What is 14 the State Water Project's, or DWR's incentive to go along 15 with the joint point of diversion given that as this 16 statement reflects there will rarely be any time when the 17 SWP uses the CVP facilities? 18 MR. GAGE: Our incentive really centers I believe on 19 flexibility. In these times when everyone is increasingly 20 concerned about the environment and concerns over building 21 new facilities, it seems to make a lot of sense to 22 maximize the use of whatever facilities are there. 23 MR. NOMELLINI, JR.: The incentive is that it 24 improves the State Water Project's flexibility? 25 MR. GAGE: It improves ours only minimally, because CAPITOL REPORTERS (916) 923-5447 11389 1 we would only be asking for it if there were a fishery 2 reason to switch to Tracy, or we were having an outage or 3 a facility problem that we couldn't export the problem. 4 So we don't really gain that much out of it, but 5 there are benefits to the state, in general, I believe 6 from both projects. And the flexibility afforded by that 7 is, I think, for the good of the state and is only done 8 when there is unused capability available in the state 9 system, so it does not impact us. 10 MR. NOMELLINI, JR.: Can you give examples of those 11 benefits to the State that would result from this? 12 MR. GAGE: A benefit to the State, the only benefit 13 to the State is by our very rare use of the pumping at the 14 Tracy facility. We receive no benefits, we make no money 15 on it. 16 MR. NOMELLINI, JR.: I meant to the State of 17 California. It sounded like you said there were benefits 18 to the state in general. 19 MR. GAGE: I believe that to be true, both the State 20 and Central Valley Projects serve water to a large 21 agricultural area as well as probably the majority of the 22 population of the State of California and shortages in 23 water supply will have economic impacts. 24 MR. THABAULT: Maybe I can assist the State on this 25 one. CAPITOL REPORTERS (916) 923-5447 11390 1 MR. GAGE: Good. 2 MR. THABAULT: The federal consultations that we 3 conducted are joint consultations with the state and 4 federal water projects. To the extent that incidental 5 take of fisheries occurs at those facilities, to the 6 extent that they have other joint project impacts, AFRP 7 joint or cooperative implementation of that program to the 8 extent that we can avoid adverse impacts to state 9 operations later in time by implementing an action through 10 joint point, I think, it may not necessarily in mass 11 balance benefit them in total water, but it does benefit 12 them in total operation and flexibility through that joint 13 operation. 14 So that flexibility, because we, the fisheries, 15 in essence, treat the project as one when we look at 16 project effects I think gives them the benefit of at least 17 not having adverse effects later in time and allows them 18 to meet their needs over time through the joint use. 19 MR. NOMELLINI, JR.: Changing topics, Mr. Thabault, 20 is that the correct pronunciation? 21 MR. THABAULT: Very good. 22 MR. NOMELLINI, JR.: On Page 2 and 3 of your Exhibit 23 17, I believe it's paragraph 10, you state, 24 (Reading): 25 "The State Board's executive officer would make CAPITOL REPORTERS (916) 923-5447 11391 1 the final determination whether the plan is 2 consistent with the State Board's order without 3 need for further hearings." 4 And my question is: Why shouldn't the parties in 5 this hearing have the opportunity to fully participate in 6 an evidentiary hearing before this Board to determine 7 whether or not the final joint point of diversion proposal 8 is preferable over the other alternatives in the Draft 9 EIR? 10 MR. THABAULT: I don't think our proposal in any way 11 is meant to inhibit the legal recourse of any user or 12 interested party in this proceeding. I think this 13 proceeding -- or the way the panel is viewing this is that 14 this is, in fact, providing the evidentiary needs for an 15 alternative. And that the CalFed process as an in-depth 16 stakeholder process, the involvement of stakeholders there 17 the hope would be to bring that plan forward with the 18 consensus of the stakeholders to the Board. 19 Certainly, we are not in any way, shape, or form 20 implying that any user would not be able to use their 21 recourse if they did not agree with the plan to recommend 22 that the Board do that. 23 MR. NOMELLINI, JR.: The question about the 24 coordination team, Mr. Thabault, which is made up of the 25 DEFT and the No Name Group coordination team, does this CAPITOL REPORTERS (916) 923-5447 11392 1 team discuss the impacts on South Delta Water Agency water 2 levels and the Vernalis salinity, or on the Vernalis water 3 quality? 4 MR. THABAULT: Yes, it does. 5 MR. NOMELLINI, JR.: On Page 1 of your exhibit, 6 paragraph three, you state, 7 (Reading): 8 "During our join deliberations we seek both to 9 minimize fishery impacts from the pumps, reduce 10 the water supply impacts of measures intended 11 to protect those fishery resources and/or 12 improve water supply when environmental 13 concerns are minimal." 14 Is another goal of this group to prevent harm to 15 Delta agricultural interests? 16 MR. THABAULT: I think it's an intent and a stated 17 goal of CalFed to improve water supply and the water 18 quality for in-delta uses as well as export interests. 19 So, therefore, I didn't distinguish between the two in my 20 testimony. 21 MR. NOMELLINI, JR.: So that specific group, this 22 coordination team hashes out the benefits and cons of the 23 joint point of diversion proposal on Delta agricultural 24 interests? 25 MR. THABAULT: I think more appropriate, it hashes CAPITOL REPORTERS (916) 923-5447 11393 1 out the overall operations that we are proposing on South 2 Delta agricultural interests. And then we look at how 3 joint point might be operated in the context of that to 4 minimize or avoid those impacts as well. 5 MR. NOMELLINI, JR.: Has the coordination team 6 discussed the ramifications of the potential uses of the 7 joint point of diversion water? 8 MR. THABAULT: The potential uses? 9 MR. NOMELLINI, JR.: Does it discuss where the joint 10 point of diversion water will be used? 11 MR. THABAULT: I don't think we have in that 12 particular forum, because of the nature of the groups and 13 looking at exports and impacts in the Delta, we have 14 specifically addressed the place of use of the water. 15 There are other parts of CalFed that they're doing that. 16 Yeah, Mr. Renning reminds me that we have 17 discussed the potential use of environmental water account 18 and how we might be able to use water from joint point for 19 environmental purposes, future allocations of refuges, et 20 cetera, in that context. 21 MR. NOMELLINI, JR.: And those environmental 22 purposes included the San Joaquin River 1995 Water Quality 23 Control Plan standards? 24 MR. THABAULT: We have -- 25 MR. CAMPBELL: Objection. Asked and answered. CAPITOL REPORTERS (916) 923-5447 11394 1 C.O. STUBCHAER: I think it was, Mr. Nomellini. 2 MR. NOMELLINI, JR.: Last question: It appears that 3 the panel is proposing before this Board that -- rather 4 the panel is asking the Board to allow an interim plan, 5 and then asking the Board to grant the final plan once 6 that final plan has been determined. 7 Is that a fair statement? 8 MR. CAMPBELL: Objection. Vague as to "plan"? 9 C.O. STUBCHAER: I think it is a little vague. 10 Could you add a specificity -- can't say it, specificity. 11 C.O. BROWN: Mr. Chairman, that was just right. 12 MR. NOMELLINI, JR.: Specifically, I wanted to 13 clarify what this panel is asking the Board to allow 14 during the interim period before the final CalFed joint 15 point of diversion proposal is adopted. And since that 16 wasn't necessarily a question -- 17 MR. RENNING: Well, the initial plan that we would 18 expect that the Board would approve would be essentially 19 Alternative 4. That we would be permitted to continue the 20 deliveries that we are already making and that we be 21 allowed to use the joint point of diversion to replace 22 capacity loss for fishery protection measures as under the 23 98-9 concept. 24 MR. NOMELLINI, JR.: Exactly what are the 25 differences, if any, between what you're asking the Board CAPITOL REPORTERS (916) 923-5447 11395 1 to authorize in the interim and the joint point of 2 diversion provisions in Water Right Order 98-9? 3 MR. RENNING: There are no differences. 4 MR. NOMELLINI, JR.: So the panel is asking the 5 Board to extend -- 6 MR. RENNING: Yeah. 7 MR. JACKSON: Mr. Stubchaer, I'd like to address the 8 question of whether or not Mr. Turner is testifying or 9 whether he's not. It's been called to my attention a 10 couple of times that I might have said something to one of 11 my witnesses once and I was reprimanded for that. And 12 what was that? 13 C.O. STUBCHAER: What was that, that was a 14 consultation with his client, I believe, but I don't know 15 what the subject matter was. 16 What Mr. Jackson is referring to is coaching 17 witnesses. But I think there are times with a panel like 18 this when if an answer is incomplete or something like 19 that, they may want to discuss it. I don't know, 20 Mr. Jackson, and I don't know what the difference is 21 between that and coaching either. So -- 22 MR. RENNING: It was drawn to my attention by the 23 other witnesses that our request involves Board approval 24 of an operation that will look, essentially, like 25 Alternative 4, which means: CAPITOL REPORTERS (916) 923-5447 11396 1 That we be allowed, Reclamation be allowed to 2 continue with the service of water to contractors that we 3 are presently serving by way of the joint point of 4 diversion, that the Board take whatever appropriate 5 actions are in our water rights to allow that to happen 6 and that we be allowed to use the joint point of diversion 7 for -- to replace capacity lost for fishery protection 8 measures as per the 98-9 concept. 9 MR. NOMELLINI, JR.: And I was trying to ask whether 10 or not you're asking to extend 98-9, or extend the 11 provisions of joint point of diversion set forth in 98-9, 12 or whether there were some subtle differences. And it 13 sounds like you might have explained some differences 14 between the two. 15 MR. RENNING: No, I don't think that there are any 16 differences. 17 MR. NOMELLINI, JR.: Okay. I'm done. 18 C.O. STUBCHAER: Okay. Thank you, Mr. Nomellini. 19 Mr. Turner. 20 MR. TURNER: Thank you, Mr. Chairman. As I 21 mentioned earlier in responding to some questions that 22 were presented to Jim yesterday by Mr. Jackson, 23 Mr. Renning had responded -- presented some concerns or 24 some confusion with respect to some of the figures that 25 were included in the DEIR in connection with Alternative CAPITOL REPORTERS (916) 923-5447 11397 1 Number 9. 2 And last evening he'd done some further research 3 and analysis to try and clarify those particular 4 responses. And I would like to ask him to do so now to 5 provide a little better information to all of the other 6 parties on that particular alternative. 7 C.O. STUBCHAER: Very well, Mr. Renning. 8 Mr. O'Laughlin. 9 MR. O'LAUGHLIN: Well, I move to object. I think 10 that this is best handled as redirect by Mr. Turner if he 11 wants to bring it up at that time and then allow all the 12 parties a chance to cross-examine on that question. 13 Because what will happen by the introduction of 14 this evidence at this time is that parties that have 15 already asked their cross-examination questions will be 16 foreclosed from asking questions on this particular 17 subject matter if there is no further redirect by the 18 panel. 19 C.O. STUBCHAER: Mr. Jackson. 20 MR. JACKSON: I agree with Mr. O'Laughlin's 21 objection as worded. I would make the same objection. 22 It's appropriate to be done in redirect and that allows 23 all the parties an opportunity, including me, to follow up 24 on the statements. I have no idea what he's going to say, 25 but I may want to follow up and I'm sure everyone else CAPITOL REPORTERS (916) 923-5447 11398 1 would, too. 2 MR. TURNER: We were not attempting to try and limit 3 that -- 4 MR. JACKSON: I understand. 5 MR. TURNER: -- any further questions or 6 cross-examination. So I would certainly agree to follow 7 that procedure if that would assure a more equitable 8 handling of this manner. 9 C.O. STUBCHAER: Fine. You can handle it on 10 redirect then. 11 Okay. We'll go to cross-examination by 12 Mr. Sexton. 13 ---oOo--- 14 CROSS-EXAMINATION OF THE DEPARTMENT OF INTERIOR, 15 DEPARTMENT OF FISH AND GAME AND 16 DEPARTMENT OF WATER RESOURCES 17 BY THE EXCHANGE CONTRACTORS 18 BY MICHAEL SEXTON 19 MR. SEXTON: Thank you, Chairman Stubchaer. 20 Mr. Renning, I'm told yesterday that in some 21 questions that were posed to you on cross-examination it 22 was suggested that deliveries of water to meet the 23 obligation to the Exchange Contractors could be made from 24 Friant. And I'm told that it was suggested that if that 25 occurred that would preclude the need for joint point of CAPITOL REPORTERS (916) 923-5447 11399 1 diversion. 2 Do you remember that line of questioning? 3 MR. RENNING: Yes. 4 MR. SEXTON: Now, you're familiar with the Exchange 5 Contractors; isn't that right, sir? 6 MR. RENNING: Yes. 7 MR. SEXTON: And you're aware that the Exchange 8 Contractors water rights predate the permits of the CVP; 9 is that right? 10 MR. RENNING: Yes, that's right. 11 MR. SEXTON: And the Exchange Contractors and the 12 United States through the Bureau of Reclamation entered 13 into what's come to be known as the Exchange Contract. 14 Currently we're on the second amended exchange contract. 15 Isn't that right, sir? 16 MR. RENNING: Yes, that's right. 17 MR. SEXTON: Mr. Stubchaer, I'd like to have marked 18 for identification the second amended contract for 19 exchange of waters marked next in order for the Exchange 20 Contractors. 21 I'm afraid I don't have copies of this right now. 22 I'll have copies sent out to all of the parties and to the 23 Board this afternoon if that's all right, sir? 24 C.O. STUBCHAER: Ms. Whitney, is there any chance 25 that it's already in the staff exhibits? CAPITOL REPORTERS (916) 923-5447 11400 1 MS. WHITNEY: I don't believe it is. 2 C.O. STUBCHAER: It is so marked, Mr. Sexton. 3 MR. SEXTON: For purposes of identification, this is 4 a contract between the Exchange Contractors and the United 5 States. It's contract ILR-1144, second amended contract 6 for exchange of waters dated February 14, 1968. 7 Now, Mr. Renning, in some years there are high 8 flows on the San Joaquin River above that that can be 9 stored at Friant; isn't that right? 10 MR. RENNING: Yes, that's right. 11 MR. SEXTON: And there's a concept used in 12 Reclamation Law called 215 water. Could you explain what 13 that is? 14 MR. RENNING: 215 water refers to waters that can be 15 made available to contractors and to others that are 16 otherwise not needed or not storable by the Reclamation 17 project. 18 MR. SEXTON: Now, the concept of making deliveries 19 to the Exchange Contractors when there are these high 20 flows, these flood releases at Friant, that is 21 incorporated into the exchange contract; isn't that right? 22 MR. RENNING: Yes. That when water is available at 23 the Mendota Pool in the San Joaquin River the Exchange 24 Contractors can divert that water under their water 25 rights. CAPITOL REPORTERS (916) 923-5447 11401 1 MR. SEXTON: Mr. Renning, I'm handing you a copy of 2 the exchange contract. And I would like you to read into 3 the record, if you would, sir, Article V, paragraph little 4 D, 5, little E, which I have marked there for you. 5 MR. RENNING: Okay. That paragraph says, 6 (Reading): 7 "Whenever sufficient water is available from 8 the San Joaquin River and/or Fresno Slough to 9 meet the needs of the contracting entities at 10 Mendota Pool, the Bureau of Reclamation 11 reserves the right to make deliveries to the 12 contracting entities at that point and to 13 terminate deliveries through the turnouts." 14 MR. SEXTON: And the term "contracting entities" as 15 used in that paragraph is referring to the Exchange 16 Contractors; isn't that right? 17 MR. RENNING: Yes. 18 MR. SEXTON: The delivery to the Exchange 19 Contractors of water off the San Joaquin River, under 20 authority of that paragraph, doesn't reduce any contract 21 allocations that would be made to the Friant contractors 22 during that same period of time; isn't that right? 23 MR. RENNING: No, it doesn't. 24 MR. SEXTON: And it's not intended to reduce the 25 allocations to the Friant contractors? CAPITOL REPORTERS (916) 923-5447 11402 1 MR. RENNING: No. The United States does not intend 2 to operate the Friant Unit of the CVP in such a way as to 3 supply water to the exchange entities by way of the Friant 4 Unit. 5 MR. SEXTON: Okay. And it is not routine to make 6 deliveries to the Exchange Contractors through releases 7 out of Friant? In other words, it's only done when there 8 are flood flows or uncontrolled releases that you can't 9 store? 10 MR. RENNING: That's right. 11 MR. SEXTON: In fact, if Exchange Contractors' 12 deliveries were normally made off of the San Joaquin River 13 at periods other than flood releases, there would need to 14 be reduces to allocations to the Friant contractors; isn't 15 that right? 16 MR. RENNING: Yes, there would be. 17 MR. SEXTON: There's nothing in the concept of 18 delivering water to the Exchange Contractors from the San 19 Joaquin River under the authority that you read into the 20 record that reduces the need for joint point of diversion 21 from the prospective of the CVP and the SWP water 22 flexibility operations; isn't that right? 23 MR. RENNING: Yes, that's right. 24 MR. SEXTON: Okay. I have nothing further. Thank 25 you for that clarification. CAPITOL REPORTERS (916) 923-5447 11403 1 Thank you, Mr. Stubchaer, for the accommodation. 2 C.O. STUBCHAER: Thank you, Mr. Sexton. 3 MR. SEXTON: Ms. Whitney has just advised me that 4 the exchange contract is going to be Exchange Contractors 5 Exhibit 6. 6 C.O. STUBCHAER: Exhibit 6. 7 MR. SEXTON: And I'll have that marked and sent out 8 this afternoon. Thank you, sir. 9 C.O. STUBCHAER: Very well. 10 Mr. Birmingham. 11 MR. BIRMINGHAM: I'm informed by Mr. Dooley that he 12 has a very short cross-examination. I wonder, if no 13 parties object, if the Hearing Officer would allow 14 Mr. Dooley to go next? 15 C.O. STUBCHAER: Mr. Suyeyasu, any objection? 16 MR. SUYEYASU: No objection. 17 C.O. STUBCHAER: All right. 18 Mr. Dooley. Good morning. 19 ---oOo--- 20 CROSS-EXAMINATION OF THE DEPARTMENT OF THE INTERIOR, 21 DEPARTMENT OF FISH AND GAME AND 22 DEPARTMENT OF WATER RESOURCES 23 BY CROSS VALLEY CANAL PARTIES 24 BY DANIEL DOOLEY 25 MR. DOOLEY: Good morning. Thank you, Mr. Chairman. CAPITOL REPORTERS (916) 923-5447 11404 1 Thank you, Mr. Birmingham. Appreciate the opportunity to 2 be here and ask just a couple questions, and must express 3 my admiration of those of you who have been here since 4 July for your endurance. 5 Couple of questions for Mr. Renning. 6 Mr. Renning, in your Table 10-E I believe it is where you 7 show the relative additional supplies that could be made 8 available by the alternative joint point of diversions 9 that are considered in the Draft EIR. 10 My understanding is that Alternative 2 is an 11 alternative that assumes no joint point of diversion even 12 to meet existing contract demands that have historically 13 been met through Banks, for example; is that correct? 14 MR. RENNING: Yes, that's right. 15 MR. DOOLEY: And my understanding is that 16 Alternative 3 identifies an alternative that assumes the 17 use of joint point of diversion to meet historic contract 18 demands, principally Cross Valley Canal, that have been 19 met through Banks. Is that correct? 20 MR. RENNING: Yes. That's correct. 21 MR. DOOLEY: And the Draft EIR as I understand it 22 evaluates the relative impacts of those two priorities, or 23 two alternatives; does it not? 24 MR. RENNING: Yes, it does. 25 MR. DOOLEY: So would it be fair to say that the CAPITOL REPORTERS (916) 923-5447 11405 1 comparison of the impacts created by Alternatives 2 and 3 2 would be a comparison of operation of the facilities both 3 with and without Cross Valley Canal deliveries? 4 MR. RENNING: Yes, that's right. 5 MR. DOOLEY: So Alternative 3 compared to 6 Alternative 2 would identify impacts, for example, that 7 might occur as a result of Cross Valley deliveries 8 compared to a condition where no Cross Valley deliveries 9 were being made? 10 MR. RENNING: Yes, that's right. 11 MR. DOOLEY: So, effectively, those alternatives, 12 then, would be an evaluation of the delivery of water by 13 the Bureau under the Cross Valley Canal contracts; would 14 it not? 15 MR. RENNING: Yes, that would be correct. 16 MR. DOOLEY: Okay. I have no further questions. 17 C.O. STUBCHAER: That was short. 18 Mr. Birmingham. Good morning. 19 // 20 // 21 // 22 // 23 // 24 // 25 // CAPITOL REPORTERS (916) 923-5447 11406 1 ---oOo--- 2 CROSS-EXAMINATION OF THE DEPARTMENT OF INTERIOR, 3 DEPARTMENT OF FISH AND GAME AND 4 DEPARTMENT OF WATER RESOURCES 5 BY WESTLANDS WATER DISTRICT AND SAN LUIS 6 DELTA-MENDOTA WATER AUTHORITY 7 BY THOMAS BIRMINGHAM 8 MR. BIRMINGHAM: Good morning. My name is Tom 9 Birmingham. I'm an attorney that represents Westlands 10 Water District and the San Luis and Delta-Mendota Water 11 Authority in these proceedings. 12 Mr. Renning, the Department of the Interior has 13 proposed that of the alternatives for evaluation in the 14 joint point of diversion chapter of the Draft 15 Environmental Impact Report, the State Water Resources 16 Control Board approve, at this point, Alternative 4? 17 MR. RENNING: Yes. That's the proposal of this 18 panel. 19 MR. BIRMINGHAM: Now, you submitted two versions of 20 your testimony, Department of the Interior Exhibit 10; is 21 that correct? 22 MR. RENNING: Yes. There was a version that was 23 submitted last July and then a revised version that was 24 submitted in November. 25 MR. BIRMINGHAM: Now, in the version that was CAPITOL REPORTERS (916) 923-5447 11407 1 submitted last July, the Department of the Interior 2 supported the adoption of Alternative 4, the joint point 3 of diversion alternative; is that correct? 4 MR. RENNING: Yes. 5 MR. BIRMINGHAM: Can you tell me what transpired 6 that resulted in your submitting revised testimony? 7 MR. RENNING: Basically what the difference was was 8 that when our testimony was prepared in July, it was the 9 position of the Interior agencies that we could not 10 collectively support alternatives that required further 11 facilities, or further work regarding environmental 12 documentation and preparation of reports that would be 13 needed to support further use of water developed by the 14 joint point of diversions -- diversion particularly, for 15 environmental purposes south of the Delta. 16 Therefore, we supported Alternative 4 in July. 17 In November, it was felt that as times had changed 18 regarding discussions that had taken place in the context 19 of the CalFed process, that it would be better to support 20 an alternative at this time that permitted greater use of 21 the joint point of diversion in anticipation of these 22 other factors being resolved. So, therefore, my testimony 23 was drafted to support Alternative 5. 24 MR. BIRMINGHAM: And then when you presented your 25 testimony on Tuesday of this week you changed the CAPITOL REPORTERS (916) 923-5447 11408 1 alternative from Alternative 5 to Alternative 4? 2 MR. RENNING: Yes. That's right. 3 MR. BIRMINGHAM: I'm going to use a word during my 4 examination of this panel and I'm going to use the word 5 "proposal." I've adopted that term because it is a term 6 that is defined in Mr. Thabault's testimony. 7 Is that everyone's understanding? And if I use 8 the term -- you're shaking your head, Mr. Thabault. 9 C.O. STUBCHAER: He's nodding. 10 MR. BIRMINGHAM: Nodding? 11 MR. THABAULT: That's affirmative. 12 MR. BIRMINGHAM: And if I use the term "proposal," 13 will the members of the panel understand that I'm 14 referring to the word as defined in Mr. Thabault's 15 testimony? 16 MR. RENNING: Speaking for the panel, that's our 17 assumption. 18 MR. BIRMINGHAM: Thank you. Mr. Renning, from the 19 perspective of the Department of the Interior, the purpose 20 of the proposal is to enable the Bureau of Reclamation to 21 make up water that it has lost as a result of regulatory 22 constraints imposed on its Delta export facilities; is 23 that correct? 24 MR. RENNING: Yes, that's correct. 25 MR. BIRMINGHAM: What are the regulatory constraints CAPITOL REPORTERS (916) 923-5447 11409 1 that have been imposed on the Bureau's Delta export 2 facilities? 3 MR. RENNING: The particular constraints that I'm 4 referring to are the terms and conditions of the 5 biological opinions under the Endangered Species Act and 6 the 1995 Water Quality Control Plan. 7 MR. BIRMINGHAM: Are there other restrictions that 8 have been imposed as a result of the implementation of the 9 Central Valley Improvement Act? 10 MR. RENNING: Yes. I'm sorry, I neglected to 11 mention that. Yes, those are also constraints that have 12 been imposed on the operation of the CVP. 13 MR. BIRMINGHAM: Now, as a result of the constraints 14 that you've just identified, isn't it correct, that the 15 water supply which the Bureau of Reclamation is able to 16 export from the Delta, on average, has been reduced by 17 approximately 30 to 35 percent? 18 MR. RENNING: I can't speak to the exact figure, but 19 I believe that the figure is in approximately that range. 20 MR. BIRMINGHAM: And in your testimony, Mr. Renning, 21 on Page 4 -- this is revised Exhibit 10 -- you state that, 22 (Reading): 23 "To enable the Reclamation to divert CVP water 24 at combined rates depicted in Exhibit 10-Z," as 25 in zebra, "the current 4600 cfs limitation in CAPITOL REPORTERS (916) 923-5447 11410 1 CVP water right permits will need to be 2 raised." 3 I think Mr. Turner has corrected that to state, 4 "would need to be reevaluated." 5 MR. TURNER: I believe the word was "clarified," is 6 what was used in the errata sheet. 7 MR. RENNING: Yes. My testimony, with the errata 8 sheet, would now read that, 9 (Reading): 10 "The current 4600 cfs limitation in CVP water 11 right permits will apply exclusively to 12 diversions of CVP water at the Tracy pumping 13 plant point of diversion." 14 MR. BIRMINGHAM: The 4600 cfs limitation that's 15 contained within your existing permits is a limitation 16 that's imposed by Water Rights Decision 1020? 17 MR. RENNING: That's right. 18 MR. BIRMINGHAM: Water Rights Decision 1020, I 19 believe, is Staff Exhibit 5C. 20 MS. WHITNEY: That's correct. 21 MR. BIRMINGHAM: Mr. Renning, I'm handing to you a 22 copy of Water Rights Decision 1020, Staff Exhibit 5C. 23 Are you familiar with Water Rights Decision 1020? 24 MR. RENNING: Yes, I am. 25 MR. BIRMINGHAM: Water Rights Decision 1020 resulted CAPITOL REPORTERS (916) 923-5447 11411 1 from an application number 15764; is that correct? 2 MR. RENNING: Yes, it is. 3 MR. BIRMINGHAM: And application 15764 was an 4 application filed on March 8, 1954? 5 MR. RENNING: That's correct. 6 MR. BIRMINGHAM: And application 15764 was filed by 7 Westlands Water District? 8 MR. RENNING: That's correct. 9 MR. BIRMINGHAM: And application 15764 was assigned 10 by Westlands Water District to the United States? 11 MR. RENNING: That's correct. 12 C.O. STUBCHAER: Are you just stretching? 13 MR. JACKSON: No. I'm just going to distribute 14 whatever all those copies are. 15 MR. BIRMINGHAM: Thank you. 16 MR. BIRMINGHAM: Mr. Renning, I'm handing to you a 17 document which I've had marked for identification as 18 Westlands' Exhibit 107. Westlands' Exhibit 107 is a 19 letter dated July 15, 1960, from the United States 20 Department of the Interior, Bureau of Reclamation to 21 Westlands Water District; is that correct? 22 MR. RENNING: Yes, that's what this is. 23 MR. BIRMINGHAM: And the letter, Westlands' Water 24 District Exhibit 107, is signed by H.P. Dugan, who was 25 Regional Director of the Bureau of Reclamation in July of CAPITOL REPORTERS (916) 923-5447 11412 1 1960; is that correct? 2 MR. RENNING: Yes. That's right. 3 MR. BIRMINGHAM: The third paragraph of Westlands' 4 Exhibit 107 is a request, is it not, Mr. Renning, that 5 Westlands Water District assign to the United States 6 Application Number 15764? 7 MR. RENNING: Yes, that's right. 8 MR. BIRMINGHAM: Mr. Renning, I just handed to you a 9 document which I've marked for identification as 10 Westlands' Exhibit 108. 11 Westlands' Exhibit 108 is a letter from the 12 United States Department of the Interior, Bureau of 13 Reclamation to Jack Rodner the manager of Westlands Water 14 District; is that correct, Mr. Renning? 15 MR. RENNING: Yes. 16 MR. BIRMINGHAM: And the letter is signed by -- the 17 letter being Westlands' Exhibit 108 -- is signed by 18 E. F. Sullivan who was the acting regional director of the 19 Bureau of Reclamation in September of 1960; is that 20 correct, Mr. Renning? 21 MR. RENNING: Yes. 22 MR. BIRMINGHAM: I'd like to draw your attention to 23 the first paragraph of Westlands Water District Exhibit 24 108. The first paragraph of Westlands Water District 108 25 indicates this is a letter, CAPITOL REPORTERS (916) 923-5447 11413 1 (Reading): 2 "To confirm discussions that had occurred 3 between Mr. Sullivan and Mr. Rodner concerning 4 the assignment of application 15764." 5 Is that correct, Mr. Renning? 6 MR. RENNING: Yes, that's what that paragraph says. 7 MR. BIRMINGHAM: And I'd like to draw your attention 8 to the third paragraph, bottom paragraph on Page 1 of 9 Westlands Water District Exhibit 108 -- 10 MR. NOMELLINI: I'm going to object to this line of 11 questioning, Mr. Chairman. There's no foundation that 12 this witness was present or had any particular 13 understanding of this letter. The letter, of course, 14 speaks for itself. 15 I think we need a foundation as to how it relates 16 to any of the panel here, or the issues here before we 17 should go forward with it. And it may be appropriate for 18 rebuttal or something like that, but it's a 1960 letter, 19 both letters are 1960. 20 C.O. STUBCHAER: Mr. Birmingham. 21 MR. BIRMINGHAM: Mr. Nomellini, first of all, I 22 think it's inappropriate that Mr. Nomellini voice any 23 objection during this cross-examination. If there are any 24 objections that would come from Central Delta Water 25 Agency, I believe those objections should come from CAPITOL REPORTERS (916) 923-5447 11414 1 Mr. Nomellini, Jr., in as much as he was the attorney that 2 cross-examined this panel. That's point number one. 3 And I would ask for the courtesy that if there 4 are objections that come from Central Delta Water Agency 5 that they be articulated by the attorney that 6 cross-examined this panel. 7 Second, the objection that is being stated is an 8 objection that goes to the admissibility into the record 9 of this document. I have not moved for the admission of 10 these documents. If Mr. Nomellini wants to make an 11 objection on the grounds of relevance, that might be a 12 different question, but foundation goes to the admission 13 of these documents. And I'm happy to lay the appropriate 14 foundation. 15 Finally, in terms -- 16 C.O. STUBCHAER: And -- 17 MR. BIRMINGHAM: Excuse me. 18 C.O. STUBCHAER: No, go ahead. 19 MR. BIRMINGHAM: Finally, in terms of relevance, 20 offer of proof, we've heard Mr. Renning testify that as a 21 result of the implementation of certain actions by the 22 United States, water supplies to contractors south of the 23 Delta have been reduced by 30 to 35 percent; although, he 24 couldn't say that was the exact number, he thought that 25 was an accurate estimate. CAPITOL REPORTERS (916) 923-5447 11415 1 These letters pertain to the rights of, at least, 2 one contractor to receive a water supply from the Bureau 3 of Reclamation and, therefore, go to the need for the 4 joint point of diversion. 5 C.O. STUBCHAER: All right. That's the tie I was 6 wondering about, too. 7 Mr. Nomellini. 8 MR. NOMELLINI: First on the procedural question, is 9 it appropriate that I address the objection even though we 10 had a separate attorney doing the cross? 11 C.O. STUBCHAER: It seems to me you've been the 12 attorney for parties in some cases here, and unless I hear 13 otherwise from Ms. Leidigh, I think that we allow 14 objections from attorneys who have participated in the 15 hearing over all. 16 Ms. Leidigh? 17 MS. LEIDIGH: I don't see any problem with 18 Mr. Nomellini, Senior, raising objections. One, he has 19 participated; and, two, even though he was not the one 20 cross-examining he is cocounsel for Central Delta Water 21 Agency. And I don't think that in the administrative 22 hearing context we should be drawing these kind of lines. 23 C.O. STUBCHAER: Thank you. 24 Mr. Nomellini. 25 MR. NOMELLINI: My objection with regard to the CAPITOL REPORTERS (916) 923-5447 11416 1 letter and the questions pertaining to these letters is 2 that there's no foundation as to any particular knowledge 3 on the part of Mr. Renning. And the reading of those, or 4 interpreting these particular letters, he may not have 5 even been with the Bureau in 1960. He may not have ever 6 seen these before. It's with regard to that pursuit that 7 I was questioning the foundation needs with regard to this 8 particular witness' knowledge. 9 C.O. STUBCHAER: Mr. Birmingham. 10 MR. BIRMINGHAM: Again, that's an objection, if it 11 is a proper is appropriately raised when I move for the 12 admission of these letters. And historically we have 13 moved for the admission of letters at the time of the 14 close of a presentation by a party. 15 The other thing, Mr. Stubchaer, that I would 16 observe is that we have had rulings from this hearing 17 officer and the prior hearing officer, that documents with 18 virtually no foundation can come into the record. And I'm 19 happy to lay the foundation, and I'm going to do that 20 because I don't want Mr. Nomellini to feel deprived. 21 But I think that -- 22 MR. NOMELLINI: Thank you for that. 23 MR. BIRMINGHAM: -- it's a little bit late for 24 Mr. Nomellini to make foundational objections in light of 25 what has transpired in these hearings to this point. CAPITOL REPORTERS (916) 923-5447 11417 1 C.O. STUBCHAER: All right. Why don't you proceed, 2 then. We'll hear objections if you move them into 3 evidence as you say. 4 MR. BIRMINGHAM: Mr. Renning, are you familiar with 5 the recordkeeping procedure of the Department of the 6 Interior, Bureau of Reclamation? 7 MR. RENNING: Yes, I am. 8 MR. BIRMINGHAM: And are you familiar with the 9 methods and the protocol procedures that are used by the 10 Department of the Interior, Bureau of Reclamation when it 11 sends a letter from its office to a contractor or a 12 potential contractor? 13 MR. RENNING: Yes, I am. 14 MR. BIRMINGHAM: And have you reviewed historical 15 files maintained by the Bureau of Reclamation? 16 MR. RENNING: Yes, I have. 17 MR. BIRMINGHAM: And from your review of the 18 historical records of the Bureau of Reclamation that are 19 maintained by the Department of the Interior, do you 20 recognize the signature of H.P. Dugan? 21 MR. RENNING: Well, I must admit I'm not familiar 22 with Mr. Dugan's signature, but I have no reason to not 23 believe that this is his signature. 24 MR. BIRMINGHAM: Now, you're familiar, Mr. Renning, 25 with the way in which correspondence from the Bureau of CAPITOL REPORTERS (916) 923-5447 11418 1 Reclamation is dated? 2 MR. RENNING: Yes. 3 MR. BIRMINGHAM: And historically it's your 4 understanding that it's the practice of the Bureau of 5 Reclamation to stamp a date on outgoing correspondence? 6 MR. RENNING: Yes, that's right. 7 MR. BIRMINGHAM: And looking at the signature on 8 Westlands Water District Exhibit 107 -- first let me ask 9 you: Is Westlands Water District Exhibit 107 on 10 stationery to be used -- a stationery used by the United 11 States Department of the Interior, Bureau of Reclamation? 12 MR. RENNING: Yes, it is. 13 MR. BIRMINGHAM: And looking at the signature block 14 on Westlands Water District Exhibit 107, is the manner in 15 which the signature block was prepared in this case 16 consistent with the manner in which the Bureau of 17 Reclamation signs letters in its normal procedure? 18 MR. RENNING: Yes, it is. 19 C.O. STUBCHAER: Mr. Birmingham, I just want to ask 20 is there anyone here that would object to stipulating that 21 this is Bureau letterhead? 22 MR. BIRMINGHAM: I want to lay the foundation. 23 I don't want anyone to feel deprived. 24 MR. HERRICK: I can fake that very -- I'm kidding. 25 C.O. STUBCHAER: Anyway, time-out a second. CAPITOL REPORTERS (916) 923-5447 11419 1 (Off the record from 11:45 a.m. to 11:46 a.m.) 2 C.O. STUBCHAER: All right. Proceed expeditiously. 3 I understand you're trying to lay a foundation. 4 MR. BIRMINGHAM: What I'm trying to do, 5 Mr. Stubchaer, just so Mr. Nomellini understands what I'm 6 doing, is lay a foundation so that I can move for the 7 admission of these documents, not withstanding any hearsay 8 objection, under the business records exception to the 9 hearsay rule. 10 And under that exception to the hearsay rule, any 11 witness who is employed by an agency can appear and 12 testify about the procedures that are used by that agency 13 in that correspondence. And even if they have no personal 14 knowledge of the letter, or the business record which is 15 the subject of the examination, that witness can testify 16 that this document appears to have been prepared using the 17 normal procedures, then, that document is admissible. 18 And if Mr. Nomellini is prepared to stipulate 19 that I've laid the foundation for both of these documents, 20 I'd be happy to move on. 21 MR. NOMELLINI: No, not at all. And, in fact, if 22 you would like, and allow me to voir dire, maybe we can 23 cut it a little shorter and I will withdraw my objection 24 if we have the proper foundation. 25 MR. BIRMINGHAM: I'd be happy to let Mr. Nomellini CAPITOL REPORTERS (916) 923-5447 11420 1 voir dire. 2 C.O. STUBCHAER: Who do you wish to voir dire? 3 MR. NOMELLINI: Mr. Renning. 4 C.O. STUBCHAER: All right. 5 MR. NOMELLINI: Mr. Renning, do you know of your own 6 personal knowledge that Westlands' Exhibit 107 is a part 7 of the records of the Department of the Interior? 8 MR. RENNING: Over the course of my work for the 9 Bureau I have reviewed numerous files. I have no specific 10 recollection of actually having looked at these two 11 letters, but I do know that this process was gone through 12 where Reclamation requested that Westlands Water District 13 assign this application to the Bureau. 14 MR. NOMELLINI: All right. 15 MR. RENNING: And that they ultimately did, and we 16 proceeded with that before the State Board. 17 MR. NOMELLINI: But you cannot contest that this 18 Westlands' Exhibit 107 is a true and correct copy of a 19 letter in the files of the Department of the Interior; is 20 that your testimony? 21 MR. RENNING: Well, like I said before, I have no 22 reason to believe that these are not what they appear to 23 be. 24 MR. NOMELLINI: All right. That's fine. Now, with 25 regard to my question of whether or not you can testify CAPITOL REPORTERS (916) 923-5447 11421 1 that Westlands' Exhibit 107 is a true and correct copy of 2 a letter in the file of the Department of the Interior, 3 you indicated you could not; is that correct? 4 MR. RENNING: I cannot -- state that again. What 5 was your wording? 6 MR. NOMELLINI: All right. Let's go back to the 7 question, if I may ask it again. 8 C.O. STUBCHAER: Yes. 9 MR. NOMELLINI: Can you testify of your own personal 10 knowledge that Westlands' Exhibit 107 is a true and 11 correct copy of a letter in the files of the Department of 12 the Interior, Bureau of Reclamation? 13 MR. RENNING: No, I cannot. However, if you give me 14 ten minutes I can check with people back at our office and 15 I'm sure they can find these letters in our files. 16 MR. NOMELLINI: All right. Fine. With regard to 17 Westlands' Exhibit 108, can you of your own personal 18 knowledge testify that Westlands' Exhibit 108 is a true 19 and correct copy of a letter in the files of the United 20 States Department of the Interior, Bureau of Reclamation? 21 MR. RENNING: I would answer that the same way as 22 your previous question. 23 MR. NOMELLINI: All right. I have another question 24 on Westland's Exhibit 107, can you tell from a review of 25 the copy of the letter that is Westlands' Exhibit 107 CAPITOL REPORTERS (916) 923-5447 11422 1 whether or not it, in fact, had been sent? 2 MR. RENNING: Yes. Letters that are signed and 3 dated are letters that have been sent. That would not 4 have happened if this letter had not been sent. 5 MR. NOMELLINI: And how do you know that? 6 MR. RENNING: Because there is a date stamp on it 7 and there is a signature on it. 8 MR. NOMELLINI: You would note in a comparison of 9 Westlands 108 and 107 that there's a received stamp on 108 10 and there is no received stamp on 107; did you note that? 11 MR. BIRMINGHAM: Pardon me. I'm going to object. 12 That goes beyond the scope of this witness' personal 13 knowledge. Mr. Nomellini is now voir diring about what 14 happened to these letters at Westlands Water District not 15 what happened to these letters at -- 16 MR. NOMELLINI: Well, I've done enough. But the 17 witness proffered that, in fact, he could tell that it was 18 sent by the indications on the letter and I was following 19 up on that -- 20 C.O. STUBCHAER: I understand. 21 MR. NOMELLINI: -- as to whether or not -- anyway, 22 what I wanted to establish in my voir dire is that this 23 witness does not have any personal knowledge that these, 24 in fact, are true and correct copies of the letters in the 25 files of the Department of the Interior. Thank you. CAPITOL REPORTERS (916) 923-5447 11423 1 C.O. STUBCHAER: All right. Gentlemen, I have a 2 suggestion, if Mr. Renning -- Mr. Birmingham, if you wish 3 Mr. Renning to contact his office and have the files 4 looked at during the lunch hour, we might shortcut this, 5 or do you just want to proceed under your business records 6 approach? 7 MR. BIRMINGHAM: Mr. Stubchaer, I don't think that 8 it's necessary. First of all, I can lay a foundation 9 through another witness. I'm certainly willing to accept 10 Mr. Renning's offer. 11 Beyond that, again, I would observe that we have 12 had numerous documents come into this record over some 13 foundational objections that I have made, and the ruling 14 of the Hearing Officer has been that the foundation need 15 not be laid, that the document would come into the record 16 and that the lack of foundation would go to the weight of 17 the evidence. 18 C.O. STUBCHAER: Right. 19 MR. BIRMINGHAM: So although this has been a nice 20 academic procedure how to lay a foundation under the 21 business records exception to the hearsay rule, I don't 22 think that it's necessary for me to ask this witness 23 questions about these documents, Westlands' Exhibit 107 24 and 108. 25 C.O. STUBCHAER: You know, it is just about CAPITOL REPORTERS (916) 923-5447 11424 1 lunchtime and -- 2 MR. JACKSON: Let's send these guys to lunch. 3 C.O. STUBCHAER: -- and I don't know how important 4 this is to your examination, but it seems to me there is a 5 very easy remedy to any questions -- 6 MR. BIRMINGHAM: Well, actually -- 7 C.O. STUBCHAER: -- but it's up to you. 8 MR. BIRMINGHAM: -- there is. And what I will do is 9 I will ask Mr. Renning to confer with his office and 10 confirm that these are letters that are maintained in 11 their files. I think that that will be pretty easy to do. 12 And he probably won't have to call his office, because I 13 suspect that Mr. Turner may be very familiar with these 14 letters. 15 C.O. STUBCHAER: Mr. Sexton. 16 MR. SEXTON: Mr. Stubchaer, I wonder if you might 17 inquire of Mr. Birmingham to tie these letters to the 18 Phase VI proceeding; in other words, make an offer of 19 proof as to what he intends to use them for? 20 C.O. STUBCHAER: Mr. Sexton, he did, I believe, 21 previously. I had the same question and he did make the 22 tie. It was the need for -- well, I won't repeat what it 23 was, but he did make the tie. 24 C.O. BROWN: The tie was made. 25 C.O. STUBCHAER: Yeah, the tie was made. CAPITOL REPORTERS (916) 923-5447 11425 1 MR. NOMELLINI: I would withdraw my objection to 2 these documents if Mr. Birmingham will not ask Mr. Renning 3 simply to restate the content of the letter, since the 4 letters speak for themselves. And Mr. Renning wasn't 5 there. There's been no foundation that he was there at 6 the time or had any particular thing to do with these 7 letters at that time. And he was starting to go through 8 this whole process with Mr. Renning. 9 C.O. STUBCHAER: I think we're looking at a dead 10 horse. 11 MR. NOMELLINI: All right. 12 C.O. STUBCHAER: All right. Mr. Birmingham. 13 MR. BIRMINGHAM: Should we recess then? 14 C.O. STUBCHAER: Yes. Let's take a lunch break 15 until 1:00 p.m. 16 Mr. Sandino? 17 MR. SANDINO: We're trying to get an idea about 18 preparing for our possible redirect. Could the remaining 19 examiners give us some sense of how long they're planning 20 on taking, or we could do this during lunch, or perhaps it 21 could wait until later? 22 C.O. STUBCHAER: We will ask that question. 23 Mr. Suyeyasu, do you have an idea of how long you 24 will examine? 25 MR. SUYEYASU: I would guess half hour. CAPITOL REPORTERS (916) 923-5447 11426 1 C.O. STUBCHAER: One half hour. 2 Mr. Birmingham? 3 MR. BIRMINGHAM: One and one half hours. 4 C.O. STUBCHAER: One and one half hours. There you 5 go. Okay. Lunch break. 6 (Luncheon recess.) 7 ---oOo--- 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 11427 1 THURSDAY, MARCH 11, 1999, 1:00 P.M. 2 SACRAMENTO, CALIFORNIA 3 ---oOo--- 4 C.O. BROWN: All right. Mr. Birmingham, we're going 5 to start without Mr. Stubchaer. He should arrive shortly, 6 but you're up. 7 MR. BIRMINGHAM: Mr. Renning, during the course of 8 the lunch recess were you able to confirm that Westlands 9 Water District 107 is a copy of a letter which is 10 maintained in the records of the United States Department 11 of the Interior, Bureau of Reclamation? 12 MR. RENNING: Yes, I checked with Chris Nell from 13 our regional office and both exhibits 107 and 108 are in 14 the files of the Bureau of Reclamation. 15 MR. BIRMINGHAM: Do you have a copy of Westlands 16 Water District 108 in front of you? 17 MR. RENNING: Yes, I do. 18 MR. BIRMINGHAM: I'd like to turn your attention to 19 the third paragraph at the bottom of 108, which is where I 20 think we were when Mr. Nomellini interposed his 21 objection -- 22 MR. NOMELLINI: No objection. 23 MR. HERRICK: Peace in our time. 24 MR. BIRMINGHAM: The third paragraph at the bottom 25 of the first page of Westlands' Exhibit 108 states that, CAPITOL REPORTERS (916) 923-5447 11428 1 (Reading): 2 "I wish to assure you that I requested this 3 assignment only for the furtherance of early 4 construction of the San Luis Unit which will in 5 turn provide water service to your district at 6 the earliest date." 7 Is that correct? 8 MR. SEXTON: Objection. Relevance. 9 C.O. BROWN: Proceed. 10 MR. BIRMINGHAM: Is that correct, Mr. Renning? 11 MR. RENNING: Yes, that's what that paragraph says. 12 MR. BIRMINGHAM: And then the next sentence states, 13 (Reading): 14 "A permanent water supply for your district 15 will, of course, be assured and made available 16 pursuant to a long-term contract renewable in 17 accordance with the current provisions of 18 Reclamation Law." 19 MR. RENNING: Yes, that's what that sentence says. 20 MR. BIRMINGHAM: During the course of your testimony 21 you've been asked a number of questions about how much 22 water the Bureau of Reclamation is entitled to divert from 23 the Delta under its existing permits. 24 Do you recall those questions? 25 MR. RENNING: Yes. CAPITOL REPORTERS (916) 923-5447 11429 1 MR. BIRMINGHAM: Now, you briefly started to talk 2 about Decision 1020, which is Staff Exhibit 5-C. Do you 3 still have a copy of Staff Exhibit 5-C in front of you? 4 MR. RENNING: Yes, I do. 5 MR. BIRMINGHAM: Now, is it your understanding that 6 the water which is appropriated pursuant to the permits 7 issued in accordance with Water Rights Decision 1020 is 8 water that is appropriated primarily for use within the 9 San Luis Unit? 10 MR. RENNING: This application covers the diversion 11 to storage of water in San Luis Reservoir. And that one 12 of the principal purposes for that water is just to serve 13 the San Luis Unit. 14 MR. BIRMINGHAM: I'd ask you to look at Page 9 of 15 Water Rights Decision 1020, and here I'm referring to the 16 order portion of the decision, paragraph one. Paragraph 17 one of this decision entitles the Bureau of Reclamation to 18 appropriate up to one million acre-feet per annum; is that 19 correct, Mr. Renning? 20 MR. RENNING: Yes, that's right. 21 MR. BIRMINGHAM: Mr. Renning, the Bureau of 22 Reclamation appropriates water from the Delta pursuant to 23 Water Rights Decision 990, which is Staff Exhibit 5-B, in 24 addition to Water Rights Decision 1020? 25 MR. RENNING: Yes, that's right. CAPITOL REPORTERS (916) 923-5447 11430 1 MR. BIRMINGHAM: Unfortunately, Mr. Renning, I only 2 have one copy of Water Rights Decision 990. 3 MR. NOMELLINI: Are there staff exhibit numbers on 4 these? 5 MR. BIRMINGHAM: Yes. I believe I referred to Water 6 Rights Decision 1020 as Staff Exhibit 5-C. And Decision 7 990 is Staff Exhibit 5-B. 8 MR. NOMELLINI: Thank you. 9 MR. BIRMINGHAM: Mr. Renning, I'm showing to you the 10 order portion of Water Rights Decision 990. And are you 11 familiar with Water Rights Decision 990? 12 MR. RENNING: Yes, I am. 13 MR. BIRMINGHAM: Is it correct that Water Rights 14 Decision 990 grants the Bureau's applications for 15 assignments of applications 5625, 5626, 9363, 9364, 9365, 16 9366, 9367, 9368 and 10588? 17 MR. RENNING: Yes, that's right. 18 MR. BIRMINGHAM: Table one, which is on Page 11 of 19 Water Rights Decision 990 lists the application numbers 20 which are the subject of the decision, the purpose of use 21 under each application and the place of use for each 22 application. 23 Is that correct, Mr. Renning? 24 MR. RENNING: Yes, that's right. 25 MR. BIRMINGHAM: I'd ask you to take a moment and CAPITOL REPORTERS (916) 923-5447 11431 1 compare the description of the applications in table one 2 on Page 11 of Decision 990 with the discussion of the 3 order related to those applications, which are on Pages 80 4 and 81 of Decision 990. And when you've completed that 5 review, let me know. 6 MR. RENNING: I've looked through them. 7 MR. BIRMINGHAM: Again, Mr. Renning, turning to the 8 order portion of Decision 990, is it correct that the 9 maximum amount of water which the Bureau of Reclamation is 10 entitled to divert under application 9363 on an annual 11 basis for municipal and industrial purposes is 300,000 12 acre-feet? 13 MR. TURNER: Mr. Brown, I think I'm going to have to 14 object at this point if what Mr. Birmingham is asking 15 Mr. Renning to do is interpret Water Right Decision 990. 16 I think he's asking Mr. Renning to make a legal 17 determination which he is not qualified to do. 18 Certainly, this information is available to the 19 Board and the document speaks for itself. And 20 Mr. Birmingham can present his interpretation by way of a 21 closing brief, but I question the benefit of questioning 22 Mr. Renning as to how he interprets this particular 23 decision. 24 MR. SEXTON: Exchange Contractors join in the 25 objection of Mr. Turner. CAPITOL REPORTERS (916) 923-5447 11432 1 C.O. BROWN: Mr. Birmingham. 2 MR. BIRMINGHAM: I think Mr. Turner's objection is a 3 fair one. 4 The point that I'm trying to make, Mr. Renning, 5 is that in response to questions -- 6 C.O. BROWN: Address it to me, Mr. Birmingham. We 7 have an objection. 8 MR. BIRMINGHAM: I will withdraw the last question. 9 C.O. BROWN: Okay. 10 MR. BIRMINGHAM: Mr. Renning, you were asked a 11 number of questions about how much water the Bureau of 12 Reclamation is entitled to appropriate from the Delta 13 under water rights permits; is that correct? 14 MR. RENNING: Yes, that's right. 15 MR. BIRMINGHAM: And you stated that you weren't 16 certain about the different quantities of water that the 17 Bureau is entitled to appropriate from the Delta under 18 those permits? 19 MR. RENNING: That's correct. 20 MR. BIRMINGHAM: Now, If a person were interested in 21 calculating the amount of water -- and what I intended to 22 do was go through and deduct the calculation -- but if a 23 person were interested in calculating the amount of water 24 the Bureau was entitled to appropriate, it would involve 25 reviewing the water rights decisions and then adding up CAPITOL REPORTERS (916) 923-5447 11433 1 the total quantity of acre-feet that the decisions 2 authorize for appropriation? 3 MR. RENNING: Yes, that's right. 4 MR. BIRMINGHAM: Now, I believe you testified, and I 5 think it can be confirmed by adding up the numbers, that 6 the Bureau is authorized to appropriate from the Delta 7 under its existing water right permits amounts in excess 8 of three million acre-feet? 9 MR. RENNING: Yes, I believe that's correct. 10 MR. BIRMINGHAM: Now, historically -- and by 11 "historically" I mean prior to the implementation of the 12 Endangered Species Act with respect to the Delta smelt, 13 winter-run and most recently -- what was that species, 14 Mr. Thabault, that recently listed? 15 MR. THABAULT: Sacramento splittail was recently 16 listed as threatened. 17 MR. BIRMINGHAM: Thank you. 18 Prior to the implementation of the Endangered 19 Species Act with respect to listing of the splittail, the 20 smelt and the winter-run, prior to the enactment of the 21 Central Valley Project Improvement Act, historically the 22 Bureau of Reclamation or its contractors put to beneficial 23 use water appropriated by the Bureau from the Delta within 24 the service area of the Central Valley Project? 25 MR. RENNING: Yes, that's right. CAPITOL REPORTERS (916) 923-5447 11434 1 MR. BIRMINGHAM: So in your testimony when you talk 2 about using the joint point of diversion to allow the CVP 3 to make up some of the lost water supplies, what you're 4 really talking about is using the joint point of diversion 5 as a means of satisfying the Bureau's existing obligations 6 to contractors south of the Delta? 7 MR. RENNING: Yes, that's right. As I stated in 8 response to some questions yesterday, we don't normally 9 meet our full contract deliveries each year. 10 MR. BIRMINGHAM: Prior to the implementation of the 11 Central Valley Project Improvement Act and the Endangered 12 Species Act, did the Bureau of Reclamation consistently 13 meet its contractual obligation south of the Delta? 14 MR. RENNING: Yes, it did. 15 MR. BIRMINGHAM: In fact, the only year prior to 16 1989 in which the Bureau did not meet all of its 17 contractual obligations south of the Delta was in 1977; 18 isn't that correct, Mr. Renning? 19 MR. TURNER: Again, I think I have object with 20 respect to the terminology. "Meet its contractual 21 obligations," is a different concept than "deliver full 22 supplies of water." 23 MR. BIRMINGHAM: I'll restate the question. 24 MR. TURNER: If he's talking about the latter. 25 MR. BIRMINGHAM: I'll restate the question. CAPITOL REPORTERS (916) 923-5447 11435 1 Isn't it correct, Mr. Renning, that prior to 1989 2 the only year in which the Bureau did not deliver water 3 sufficient to meet the allocations, full allocations to 4 its contractors south of the Delta was 1977? 5 MR. RENNING: Yes, I believe that's correct. 6 MR. BIRMINGHAM: I'd like to ask some questions 7 about the fishery benefits of the joint point of 8 diversion. And these were questions that I had originally 9 planned on asking Dr. Kjelson, but in his absence I'll ask 10 these questions of you, Mr. Thabault. 11 You would agree, wouldn't you -- and, 12 Mr. Robinson, to the degree that you would like to answer 13 these questions I would welcome your response as well -- 14 but you would agree, wouldn't you, that a joint point of 15 diversion has the potential to provide significant 16 advantages for Delta fisheries? 17 MR. THABAULT: I think we have testified that the 18 use of a joint point has been identified to having some 19 benefits and advantages for Delta fish. I don't know if 20 we described the level of significance to that yet, but we 21 do think it's an important piece. 22 MR. BIRMINGHAM: Well, a joint point of diversion 23 could be used to reduce the overall entrainment and 24 subsequent loss of fish by the export facilities of the 25 State Water Project and the Central Valley Project; is CAPITOL REPORTERS (916) 923-5447 11436 1 that correct? 2 MR. THABAULT: That is certainly one use, yes. 3 MR. BIRMINGHAM: And the projects can use 4 interchangeable diversion points to take advantage of fish 5 entrainment differences to shift a greater portion of 6 their diversion to whichever facility has the lowest 7 entrainment rate? 8 MR. THABAULT: That is one method, yes. 9 MR. BIRMINGHAM: And that could potentially reduce 10 the overall number of fish lost per acre-foot of water 11 exported from the Delta? 12 MR. THABAULT: At those salvage facilities, yes. 13 MR. BIRMINGHAM: Now, the occurrence, life stage and 14 abundance of fish in the Delta can vary seasonably 15 depending upon species; is that correct? 16 MR. THABAULT: That's correct. 17 MR. BIRMINGHAM: And the State Water Project and the 18 Central Valley Project operations have been adjusted 19 repeatedly over the years to take advantage of these 20 seasonal differences? 21 MR. THABAULT: Yeah, I believe that's correct. 22 MR. BIRMINGHAM: Let me ask Mr. Gage or Mr. Ford, 23 who may be more familiar with the actual operations of the 24 State Water Project and the Central Valley Project: 25 Isn't it correct that the State Water Project and CAPITOL REPORTERS (916) 923-5447 11437 1 the CVP operations have been adjusted repeatedly over the 2 years to take advantage of the seasonal differences and 3 abundance -- 4 MR. FORD: Yes. 5 MR. BIRMINGHAM: Go ahead. 6 MR. FORD: Yes, that's correct. I documented those 7 in my testimony, DWR 36. 8 MR. BIRMINGHAM: And, essentially, the two projects 9 shift pumping from seasons that were thought to be more 10 harmful to fish to seasons that were thought to be less 11 harmful to fish? 12 MR. FORD: Yes, on occasion. 13 MR. BIRMINGHAM: Now, shifting diversions from one 14 pumping plant to another pumping plant could have similar 15 benefits, isn't that correct, Mr. Ford? 16 MR. FORD: Similar benefits to? 17 MR. BIRMINGHAM: Well, we've established that in 18 order to provide benefits to the fishery relating to their 19 seasonal abundance, or the occurrence from season to 20 season, pumping has been shifted from season to season -- 21 MR. FORD: Right. 22 MR. BIRMINGHAM: -- to reduce entrainment. Rather 23 than shifting from season to season, shifting from pumping 24 plant to pumping plant would have a similar benefit? 25 MR. FORD: Within the same time frame. We have used CAPITOL REPORTERS (916) 923-5447 11438 1 the joint points of diversion to fishery benefit within 2 the same -- within the same time frame and also shifted it 3 using joint points of diversion from season to season. So 4 the total amount of diversion is less one season and then 5 made up in other seasons. 6 MR. BIRMINGHAM: Let's pick a particular species -- 7 and, Mr. Thabault, you may be the appropriate person to 8 answer these questions or if anyone on the panel would 9 like to answer them, I would welcome the answer: But 10 there are particular seasons when there are more 11 winter-run chinook salmon present at the export pumps than 12 in different seasons; isn't that correct? 13 MR. THABAULT: That's correct. 14 MR. BIRMINGHAM: And so, historically, the Bureau of 15 Reclamation and the State Water Project have in order to 16 reduce pumping during the season when large numbers of 17 winter-run salmon might be present near the pumps they've 18 shifted that pumping, or those exports to another time of 19 the year? 20 MR. THABAULT: That is correct. 21 MR. BIRMINGHAM: Now, let's talk hypothetically 22 about a situation in which there are a large number of 23 winter-run at the federal project, but the federal project 24 has not yet reached the take limit that is imposed by the 25 biological opinion for winter-run. CAPITOL REPORTERS (916) 923-5447 11439 1 Just so Mr. Nomellini, doesn't object, let me lay 2 the foundation. Is there a Biological Opinion for the 3 winter-run? 4 MR. THABAULT: Yes, there is. 5 MR. BIRMINGHAM: And does that Biological Opinion 6 impose take limits for operation of the Central Valley 7 Project? 8 MR. THABAULT: The National Marine Fishery Service 9 has issued an incidental take statement, which is a joint 10 take statement for the state and federal projects. It 11 does not isolate individual projects. 12 MR. BIRMINGHAM: Well, now, at some point if the 13 projects approach the take limit, the projects are 14 required to reduce or terminate pumping? 15 MR. THABAULT: They are required to minimize the 16 affect of incidental take of which reducing pumping is one 17 mechanism. 18 MR. BIRMINGHAM: Now, if there are large numbers of 19 winter-run at the federal pumps, but the numbers of fish 20 taken have not yet approached the take limit, would it 21 benefit the species if pumping were shifted to the state 22 pumps where, in my hypothetical I'm going to ask you to 23 assume that there are fewer fish present? 24 MR. THABAULT: It would reduce the amount of 25 entrainment of that species at that facility. That takes CAPITOL REPORTERS (916) 923-5447 11440 1 into account the effect of entrainment. 2 MR. BIRMINGHAM: And by reducing entrainment of the 3 species you have benefited the species? 4 MR. THABAULT: You could benefit the species by 5 reducing entrainment. There may be other indirect effects 6 associated, but you still would want to look at 7 entrainment as the only effect. 8 MR. BIRMINGHAM: So when larger numbers of species 9 are found at one set of pumps, exports could be shifted to 10 the other set of pumps? 11 MR. THABAULT: That's correct. 12 MR. BIRMINGHAM: Now, again, these were questions 13 that I was going to ask of Dr. Kjelson but, Mr. Robinson, 14 I believe that your testimony addresses the same points -- 15 excuse me, Mr. White. I beg your pardon. 16 Mr. White, your testimony refers to fall-run 17 salmon smolt survival studies that have been conducted in 18 the Delta. Is that correct? 19 MR. WHITE: Yes, it does. 20 MR. BIRMINGHAM: Mr. White, I have placed on the 21 overhead projector a copy of a map of the Delta taken from 22 Page 6 of the Delta Atlas, which is in evidence as Staff 23 Exhibit -- 24 MS. WHITNEY: 63. 25 MR. BIRMINGHAM: -- 63. Now, do you recognize this CAPITOL REPORTERS (916) 923-5447 11441 1 map of the Delta, Mr. White? 2 MR. WHITRIDGE: This appears a map of the Delta, 3 yes. 4 MR. BIRMINGHAM: Now, the fall-run salmon smolt 5 survival studies that you referred to in your testimony, 6 those were conducted by Dr. Kjelson; is that correct? 7 MR. WHITE: That's correct. Dr. Kjelson's program 8 with the Fish and Wildlife Service is the portion of the 9 interagency ecological program that has conducted the 10 salmon investigations over the years. 11 MR. BIRMINGHAM: Now, the testimony refers to 12 coded-wire tagged studies. Are you familiar with the way 13 in which those coded-wire tagged studies were conducted? 14 MR. WHITE: Generally, yes, I am. 15 MR. BIRMINGHAM: Now, am I correct that coded-wire 16 tagged salmon smolts were placed in the Sacramento River 17 near the community of Ryde and coded-wire tagged salmon 18 smolts were placed in Georgiana Slough as part of these 19 studies? 20 MR. WHITE: That is the experimental design for some 21 fraction of the investigations that Dr. Kjelson has 22 conducted. 23 MR. BIRMINGHAM: Now, from the map on the overhead 24 from Page 6 of the Delta Atlas, Staff Exhibit 63, I am 25 pointing to a point that is identified as the community of CAPITOL REPORTERS (916) 923-5447 11442 1 Ryde along the Sacramento River. Am I correct that that's 2 the approximate location where the coded-wire tagged 3 salmon smolts were placed in the Sacramento River? 4 MR. WHITE: In the paired release experiments that 5 you described, fish were released at Ryde and you are 6 pointing in the general vicinity of Ryde, yes. 7 MR. BIRMINGHAM: Now, Georgiana Slough is a slough 8 that flows from the Sacramento River upstream of the 9 community of Ryde; is that correct? 10 MR. WHITE: Yes, that's right. 11 MR. BIRMINGHAM: And can you tell me where within 12 Georgiana Slough were the coded-wire tagged salmon smolts 13 placed as part of the study that we're talking about? 14 MR. WHITE: Well, I would stand corrected by 15 Dr. Kjelson, but I presume in the general vicinity where 16 you're pointing at the present time. 17 MR. BIRMINGHAM: And that's -- 18 MR. WHITE: The upper portion of the Georgiana 19 Slough. 20 MR. BIRMINGHAM: And that's immediately to the right 21 of the number 870 near the community of Ryde? 22 MR. WHITE: Perhaps, the exact location is just a 23 little bit downstream in Georgiana Slough of where you're 24 pointing. 25 MR. BIRMINGHAM: Now, one of the purposes of this CAPITOL REPORTERS (916) 923-5447 11443 1 study was to determine the effect of export pumps, if any, 2 on salmon smolt survival in the Central Delta; is that 3 correct? 4 MR. WHITE: In the Delta as a whole. 5 MR. BIRMINGHAM: Now, one of the assumptions of the 6 study was that salmon smolts placed in the Sacramento 7 River near the community of Ryde would outmigrate and 8 would not be influenced by the effects of the state and 9 federal pumps; is that correct? 10 MR. WHITE: That is not entirely correct. I believe 11 the premise of the experimental design is that fish 12 released in the Sacramento River at Ryde would be 13 substantially less affected than fish released in the 14 Georgiana Slough. 15 MR. BIRMINGHAM: I'd like you to look at paragraph 6 16 of Department of the Interior Exhibit 12, which is the 17 revised testimony of Martin Kjelson. 18 Do you have a copy of that in front of you? 19 MR. WHITE: Yes, I do. 20 MR. BIRMINGHAM: Paragraph 6 refers to the 21 coded-wire tagged paired released studies which we are 22 talking about; is that correct, Mr. White? 23 MR. WHITE: Yes, it seems that it does. 24 MR. BIRMINGHAM: And if -- 25 MR. TURNER: Excuse me, Mr. Brown. If these CAPITOL REPORTERS (916) 923-5447 11444 1 questions that Mr. Birmingham is asking are related to 2 Mr. Kjelson's testimony, Mr. Kjelson's handling of this 3 particular study, it seems to me it would be more 4 appropriate for him to present those directly to 5 Dr. Kjelson after he's given an opportunity to present his 6 direct testimony rather than getting all this secondhand 7 information, unless he's presuming to waive any 8 cross-examination of Dr. Kjelson. 9 C.O. BROWN: Mr. Campbell. 10 MR. CAMPBELL: If I may add to that, it's our 11 understanding that when Dr. Kjelson is made available 12 again on the 24th to continue his testimony and be 13 available for cross-examination, that we were going to 14 keep a portion of this panel intact, including Mr. White, 15 so in case there were any questions that needed to be 16 fielded by one of the other biologists that would be 17 possible. 18 C.O. BROWN: Mr. O'Laughlin. 19 MR. O'LAUGHLIN: Since the hearings have started 20 it's been the consistent ruling of this Board that the 21 scope of the cross-examination does not have to be limited 22 to direct. And this is perfect cross-examination. It 23 fits in with what the panel has presented. 24 And even though I realize Mr. Turner thinks that 25 somebody else may be the best person to answer the CAPITOL REPORTERS (916) 923-5447 11445 1 question, he is not entitled to limit the person asking 2 the cross-examination as to who can answer the question 3 the best. 4 If Mr. White is unable to answer the questions, 5 I'm assuming Mr. White will say he's unable to answer 6 them. So I don't think there is a proper objection put 7 forth. 8 MR. BIRMINGHAM: And, Mr. Brown -- 9 C.O. BROWN: Mr. Birmingham. 10 MR. BIRMINGHAM: -- I will also observe 11 that Mr. White's testimony, Department of Fish and Game 12 Exhibit 27, contains opinions by Mr. White which are based 13 upon the coded-wire tagged studies which I'm now asking 14 him about. 15 And so I would think that even though I may end 16 up asking Dr. Kjelson very similar questions when he 17 testifies, I certainly am entitled to cross-examine 18 Mr. White with respect to his understanding of the studies 19 and the basis of the opinions that he has expressed in 20 reliance upon those studies. 21 MR. CAMPBELL: May I make a suggestion, Mr. Brown? 22 To the extent that Dr. Kjelson has begun his direct 23 testimony, and it was only to the point of the new data, 24 that his direct testimony was postponed until that could 25 be addressed, that he be included as part of the panel for CAPITOL REPORTERS (916) 923-5447 11446 1 these questions. 2 And to save time, if Mr. White would like to 3 defer some portion of those questions to Mr. Kjelson that 4 does not touch upon the new data, that he be allowed to do 5 so and at this time Dr. Kjelson be allowed to answer the 6 questions as well. 7 C.O. BROWN: I made a ruling yesterday that if you 8 wanted to ask Dr. Kjelson a question, you ask it first 9 then I would rule whether or not he could answer it, 10 that's one. 11 But you have that option, Mr. Birmingham. 12 MR. BIRMINGHAM: I appreciate -- excuse me. 13 C.O. BROWN: Mr. O'Laughlin. 14 MR. O'LAUGHLIN: Well, very briefly. I understand 15 Mr. Campbell's suggestion and I understand the Chair's 16 ruling from yesterday, that would serve as an extreme 17 disadvantage to now include Mr. Kjelson in the panel to 18 the detriment of all those other parties that have already 19 asked previous cross-examination questions. 20 So I would recommend or suggest that he not be 21 included in the panel, and that would follow the Board's 22 previous ruling from yesterday; that if Mr. Birmingham has 23 a specific question for Mr. Kjelson that he direct it to 24 the Board Hearing Officer first and then the Board Hearing 25 Officer would decide whether or not to ask it of CAPITOL REPORTERS (916) 923-5447 11447 1 Mr. Kjelson. 2 Otherwise, by including him in the panel now, all 3 the other parties that have gone first are at an extreme 4 disadvantage. 5 C.O. BROWN: Overruled. Proceed. 6 MR. BIRMINGHAM: Thank you, Mr. Brown. 7 May I have a moment to address the Hearing 8 Officer? 9 C.O. BROWN: You may. 10 MR. BIRMINGHAM: I think that Mr. Turner may have, 11 in part, based his suggestion on an effort to expedite the 12 examination of this panel. If it's acceptable with the 13 Hearing Officer and members of the panel and counsel, I 14 would be happy to defer my examination of this entire 15 panel until after Dr. Kjelson has finished his revised 16 testimony and then comes back with the other members of 17 the panel to present it. 18 C.O. BROWN: Mr. Turner. 19 MR. TURNER: That is extremely onerous on us, 20 Mr. Brown. As you can well imagine, we have numerous 21 parties here that have scheduled their time to be 22 available for this presentation, for this 23 cross-examination. And Mr. Kjelson is going to be coming 24 up in a couple more weeks, which would require these 25 people to, you know, make themselves available at further CAPITOL REPORTERS (916) 923-5447 11448 1 times when it wasn't really anticipated. 2 And I -- since it was decided to defer 3 Mr. Kjelson's participation, I really feel that it would 4 just be inappropriate to ask all of these other people to 5 have bear the result of that deferral. 6 C.O. BROWN: I agree with you, Mr. Turner. We're 7 not going to change that decision. 8 Please, proceed. 9 MR. BIRMINGHAM: I will. 10 MR. CAMPBELL: Mr. Brown, may I be heard on the 11 matter? 12 C.O. BROWN: Okay. Mr. Campbell. 13 MR. CAMPBELL: I appreciate that, Mr. Brown. 14 Mr. Birmingham's most recent suggestion is very 15 similar to the suggestion I made just a few minutes ago, 16 that we bring a portion of this panel back for that type 17 of questioning on the 24th. 18 And we would -- I make -- Department of Fish and 19 Game would make Jim White available at that time. And I 20 can check with Mr. Turner to see whether or not he would 21 make Mr. Thabault available as well. 22 MR. TURNER: Mr. Thabault cannot be made available 23 at that time. 24 C.O. BROWN: Okay. 25 MR. BIRMINGHAM: Well, why don't I do this, CAPITOL REPORTERS (916) 923-5447 11449 1 Mr. Brown, just to speed things up, I appreciate the 2 Department of Fish and Game's offer -- 3 C.O. BROWN: Thank you, Mr. Campbell, that was a 4 good suggestion. 5 MR. O'LAUGHLIN: Mr. Brown, may I raise one 6 procedural question? I know I didn't ask any questions -- 7 C.O. BROWN: Let Mr. Birmingham finish first. 8 MR. O'LAUGHLIN: Okay. 9 MR. BIRMINGHAM: What I will do, just to speed 10 things along, is I will defer all of my questions on the 11 coded-wire tagged study until Dr. Kjelson comes back, 12 because I don't think the questions depend upon 13 Mr. Thabault being present. 14 C.O. BROWN: Thank you, Mr. Birmingham. 15 Now, Mr. O'Laughlin. 16 MR. O'LAUGHLIN: Thank you. I've been quite through 17 the last several days on this, but I find it very bazaar 18 that the burden is being placed on other parties in the 19 proceedings to conduct their cross-examination in this 20 fashion when it was not the parties who presented the 21 testimony of Mr. Kjelson who made a mistake. 22 And one of the things that we should keep in mind 23 is even if Mr. Kjelson is brought back later this month, 24 there will probably be questions asked of Mr. Kjelson that 25 would lead to other questions that would go to other CAPITOL REPORTERS (916) 923-5447 11450 1 members of this panel that would properly be asked on 2 cross-examination, so those parties may need to be called 3 back based on the cross-examination of Mr. Kjelson. 4 And I think what's happened here, unfortunately, 5 is that by presenting a panel of eight, the parties who 6 presented this panel of eight took it upon themselves to 7 present the panel as a whole panel. And when they have 8 failed to do so, the burden should not shift to us to make 9 the cross-examination go smoother, go faster, go more 10 expeditiously and meet their time frames and schedules. 11 That burden, unfortunately, is thrust upon them when they 12 took it upon themselves to present this case as a panel. 13 C.O. BROWN: Thank you, Mr. O'Laughlin. We'll keep 14 that in mind. 15 And proceed, Mr. Birmingham. 16 MR. BIRMINGHAM: Thank you. 17 I'd like to ask a couple of questions about the 18 process that was used in selecting the alternative that 19 would be advanced by the Department of the Interior. 20 Mr. Renning, you testified that originally the 21 Department of the Interior had advanced Alternative 4 22 rather than the proposal; is that correct? 23 MR. RENNING: Yes, that's right. 24 MR. BIRMINGHAM: And the Alternative 4 is the use of 25 joint point with the conditions that are imposed, or that CAPITOL REPORTERS (916) 923-5447 11451 1 were imposed by Water Rights Decision 95-6 and now Water 2 Rights Decision 98-9? 3 MR. RENNING: Yes, but we also anticipated that we 4 would be permitted to continue the use of Banks pumping 5 plant for our existing contracts. 6 MR. BIRMINGHAM: Now, Mr. White, originally the 7 Department of Fish and Game also proposed the State Water 8 Resources Control Board adopt Alternative 4; is that 9 correct? 10 MR. WHITE: That is correct, in our testimony 11 submitted in July of '98 that was the position that we 12 took. 13 MR. BIRMINGHAM: And now the Department of Fish and 14 Game has slightly modified its position, in rather than 15 suggesting the adoption of Alternative 4, the Department 16 of Fish and Game is suggesting the adoption of Alternative 17 4 until some operating criteria can be established through 18 the CalFed process? 19 MR. WHITE: Yes, that's correct. 20 MR. BIRMINGHAM: And those operating criteria are 21 what Mr. Thabault referred to in his testimony as the 22 plan? Mr. Thabault is nodding his head up and down. 23 MR. THABAULT: It was not clear who you were 24 directing the question to, Mr. Birmingham. 25 MR. BIRMINGHAM: I didn't -- CAPITOL REPORTERS (916) 923-5447 11452 1 MR. THABAULT: That is correct. 2 MR. BIRMINGHAM: Isn't it correct that the studies 3 have shown that there is not a significant difference 4 between Alternative 4 and Alternative 5 from an 5 environmental prospective? And I guess I'd ask that 6 question of you, Mr. Robinson. 7 MR. ROBINSON: That would be consistent with the 8 findings of the document, yes. 9 MR. BIRMINGHAM: Okay. So your testimony talks 10 about a comparison of the alternative -- of the 11 alternatives and the environmental effects from each 12 alternative? 13 MR. ROBINSON: Correct. 14 MR. BIRMINGHAM: And from your testimony and the 15 exhibits that were presented with your testimony, it is 16 your opinion that there is not a significant difference 17 between Alternative 4 and Alternative 5 from an 18 environmental perspective? 19 MR. ROBINSON: Based upon the analyses that were 20 performed, I'd have to go through and specifically look 21 where you might find differences. But, in general, there 22 was very little difference between alternatives regardless 23 of the level of use of joint points of diversion. 24 MR. BIRMINGHAM: Let's look at the Department of the 25 Interior Exhibit 11-N. Do you have a copy of that in CAPITOL REPORTERS (916) 923-5447 11453 1 front of you? 2 MR. ROBINSON: Yes, I do. 3 MR. BIRMINGHAM: Mr. Gage, could I ask you to put 4 that up, please? Thank you. 5 Mr. Gage has just placed on the overhead 6 projector a copy of Department of the Interior Exhibit N. 7 And at the top of the exhibit there is a graph showing the 8 survival index under each alternative for the Sacramento 9 River fall-run chinook salmon smolt survival; is that 10 correct? 11 MR. ROBINSON: For Sacramento River fall-run chinook 12 salmon smolt survival, yeah. That figure is 13-42. 13 MR. BIRMINGHAM: And under Figure 13-42, as shown on 14 Department of the Interior Exhibit 11-N there is very 15 little difference between the survival index for 16 Alternative 4 and Alternative 5? 17 MR. ROBINSON: That's correct. In terms of the 18 72-year average annual index there was 6/10ths of a 19 percent difference; Alternative 4 indicated 33.6 percent, 20 smolt survival versus Alternative 5 which indicated 33 21 percent survival. 22 MR. BIRMINGHAM: Now, looking at Figure 13-43, which 23 is also depicted on Department of the Interior Exhibit 24 11-N, this is a graph depicting survival indices for 25 Sacramento River late fall-run chinook salmon smolt CAPITOL REPORTERS (916) 923-5447 11454 1 survival; is that correct? 2 MR. ROBINSON: That's correct. 3 MR. BIRMINGHAM: And looking at Alternative 4 and 4 Alternative 5 the survival index for Alternative 4 is the 5 same as the survival index for Alternative 5? 6 MR. ROBINSON: That's correct. 7 MR. BIRMINGHAM: Now, with respect to Figure 13-44, 8 also depicted on Department of the Interior Exhibit 11-N, 9 this is a graph of the survival indices for the Sacramento 10 River winter-run chinook salmon smolt survival; is that 11 correct, Mr. Robinson? 12 MR. ROBINSON: That's correct. 13 MR. BIRMINGHAM: Now, looking at the survival index 14 for Alternative 4 and the survival index for Alternative 15 5, you would agree, would you not, Mr. Robinson, that 16 there's very little difference between those two indices? 17 MR. ROBINSON: I would agree that the graph shows 18 that Alternative 4, the modeled salmon -- winter-run 19 salmon smolt survival is 66.5 percent versus Alternative 5 20 which was 66.1 percent. 21 MR. BIRMINGHAM: And you would agree that that 22 difference is not a significant difference? 23 MR. ROBINSON: That is a very small difference. 24 MR. WHITE: Mr. Birmingham, would it be okay if we 25 just point out for the sake of everyone's understanding, CAPITOL REPORTERS (916) 923-5447 11455 1 not disputing the statements made about the relative 2 differences, that on the Y axis we have a survival index 3 value which does not equate to percent survival in the 4 general sense you might think of it: These are our index 5 values and not absolute percent of survival. 6 C.O. BROWN: Thank you. 7 MR. BIRMINGHAM: But isn't it correct, Mr. White, 8 that on I believe it was Tuesday of this week when you 9 were describing the differences between the effects on 10 fish resulting from the implementation of different joint 11 point of diversion alternatives, you described the effects 12 as being nearly identical? 13 MR. WHITE: Yes. I believe my testimony is that 14 with respect to the impact analysis done for fall-run, 15 late fall-run and winter-run that there were only small 16 differences among Alternatives 3 through 8. 17 MR. BIRMINGHAM: And so there are very small 18 differences, if any, between Alternative 4 and 5; isn't 19 that right, Mr. White? 20 MR. WHITE: Yes. I don't dispute the statements 21 made in respect to that comparison. 22 MR. BIRMINGHAM: And, Mr. Robinson, as part of your 23 testimony you also looked at water levels in the Delta 24 under each alternative; is that correct? 25 MR. ROBINSON: That's correct, an analysis was CAPITOL REPORTERS (916) 923-5447 11456 1 performed on water surface elevations in the Delta. 2 MR. BIRMINGHAM: And there are numerous exhibits 3 that were attached to your testimony, Department of the 4 Interior Exhibit 11, Revised, which show the various 5 average minimum water levels for each alternative at 6 different points in the Delta; is that correct? 7 MR. ROBINSON: That's correct. I believe they are 8 Exhibits 11-B through 11-L. 9 MR. BIRMINGHAM: I don't want to go through each one 10 of them, but isn't it correct, Mr. Robinson, that as 11 between Alternatives 4 and 5 there are no differences in 12 average minimum water levels? 13 MR. ROBINSON: You know, specifically through each 14 month of each analysis in order to say "yes" I would have 15 to go through and look. It's not to say that in the 16 analysis that any given month of any given year that there 17 may have been differences between the two alternatives; 18 yet, over the 72-year average the differences were -- the 19 predicted values were very similar if not the same. 20 MR. BIRMINGHAM: Now, Mr. Renning, this question is 21 directed to you: You have testified that the Department 22 of the Interior is interested in joint point of diversion 23 because of the advantages it has for water supplies? 24 MR. RENNING: For water supplies, in general, and 25 for purposes, too. CAPITOL REPORTERS (916) 923-5447 11457 1 MR. BIRMINGHAM: Now, from a water supply 2 perspective -- comparing Alternative 4 to Alternative 5 3 from a water supply perspective, isn't Alternative 5 the 4 preferable alternative? 5 MR. RENNING: Yes, it is. 6 MR. BIRMINGHAM: Now, with respect to the proposal 7 under the development of the plan, the plan will be 8 developed to provide protection for fish and other public 9 trust resources; is that correct? 10 MR. THABAULT: As well as other uses such as 11 in-delta uses and water quality. 12 MR. BIRMINGHAM: I'm sorry, Mr. Gage. Thank you. 13 MR. WHITE: It is an objective of the CalFed 14 Bay-Delta Program to facilitate the recovery of fish 15 species and improve water management for all of the 16 purposes. 17 In the context of this particular comparison that 18 we've been making in the last few minutes, I think it's 19 important to point out that I testified earlier that the 20 Draft EIR did not complete an analysis of the impacts to 21 spring-run chinook salmon. And my testimony laid the 22 basis for the importance of the fall period as well as the 23 spring for spring-run chinook salmon. And that 24 consideration of those seasons and, perhaps, the 25 spring-run needs to be part of the full analysis. CAPITOL REPORTERS (916) 923-5447 11458 1 MR. BIRMINGHAM: Now, Mr. White, you're allowing me 2 to go back to the questions on the coded-wire tagged 3 surveys, and I don't want to do that. 4 But the point that you're making is that the 5 plan, whatever operational criteria are developed, needs 6 to be consistent with the requirements of fish whether 7 it's the fall-run, or the spring-run, or the winter-run 8 needs to be consistent with the requirements of the fish; 9 is that correct? 10 MR. WHITE: Yes, I would agree with that. 11 MR. BIRMINGHAM: Now, in fact, Mr. Thabault, in 12 paragraph 8 of your testimony, Department of the Interior 13 Exhibit 17, you state, 14 (Reading): 15 "At the very least the plan which will include 16 operation plans for joint point of diversion 17 will comply with all federal and state laws and 18 regulations such as the state and federal 19 Endangered Species Acts." 20 MR. THABAULT: That is correct. 21 MR. BIRMINGHAM: "The plan will also include such 22 things as protective fish criteria, operating rules and 23 measures that meet other CalFed goals and objectives such 24 as water quality and water supply reliability." 25 MR. THABAULT: That is correct. CAPITOL REPORTERS (916) 923-5447 11459 1 MR. BIRMINGHAM: Now, I'm going to ask you to assume 2 that the State Water Resources Control Board approves a 3 joint point of diversion alternative without imposing the 4 condition that you have suggested in the proposal. 5 Do you understand that, Mr. Thabault? 6 MR. THABAULT: If I understand you correctly that 7 they would authorize an unlimited use of joint point up to 8 capacity without having an operations plan developed. 9 MR. BIRMINGHAM: That's a fair way of paraphrasing 10 my assumption. 11 Now, if the State Board were to approve a joint 12 point of diversion without the condition that you have 13 suggested in the proposal -- 14 MR. CAMPBELL: Objection. That actually misstates 15 the testimony. It's not Mr. Thabault's proposal, but it's 16 the proposal of all of these three agencies. 17 C.O. BROWN: Restate the question, Mr. Birmingham. 18 MR. BIRMINGHAM: Assuming, Mr. Thabault, that the 19 Water Board approves the joint point of diversion without 20 the condition suggested by the agencies', plural 21 possessive, proposal, wouldn't the operation of a joint 22 point of diversion have to be consistent with all federal 23 and state laws? 24 MR. THABAULT: I would presume that would be the 25 case, yes. CAPITOL REPORTERS (916) 923-5447 11460 1 MR. BIRMINGHAM: Wouldn't the Bureau of Reclamation 2 and the Department of Water Resources be required to 3 consult with the Fish and Wildlife Service and the 4 National Marine Fisheries Service with respect to 5 protecting species listed under the federal Endangered 6 Species Act? 7 MR. THABAULT: That would be correct. 8 MR. BIRMINGHAM: And then Mr. -- 9 MR. THABAULT: I would say to the extent that they 10 change their operations and criteria for which they've 11 already consulted on. 12 MR. BIRMINGHAM: Okay. The Bureau and the 13 Department of Water Resources would be required to do a 14 biological assessment; is that correct? 15 MR. THABAULT: They would have to go back and look 16 at what the joint point proposal that they would put 17 forward to the services, how that would change the 18 existing operation that they already have a consultation 19 on to determine the amount or extent of the effect and 20 proceed with consultation, if necessary, if those effects 21 were different. 22 MR. BIRMINGHAM: And if the effects were not 23 different that would mean, would it not, that the 24 protections created by the existing Biological Opinions 25 and the incidental take permits or statements are CAPITOL REPORTERS (916) 923-5447 11461 1 sufficient to protect the species under the joint point of 2 diversion operation? 3 MR. THABAULT: Hypothetically, if there were no -- 4 in our conclusion of that assessment there was no change 5 in the amount or extent of incidental take and there was 6 no change in the impact analysis that we conducted under 7 the original consultation, that would be correct. 8 MR. BIRMINGHAM: Now, with respect, Mr. White, to 9 species that are listed under the State Endangered Species 10 Act, the Department of Water Resources and the Bureau of 11 Reclamation would consult with the Department of Fish and 12 Game; is that correct? 13 MR. WHITE: The Department of Water Resources would 14 need to obtain permits to authorize the take of 15 state-listed species. And that can be accomplished in a 16 couple of different ways, one of which would be through an 17 equivalency determination that the federal opinions that 18 they held for species, which were both state and federally 19 listed, were sufficient in the minds of the state. 20 MR. BIRMINGHAM: And so the joint point of diversion 21 operations from a state perspective would have to be 22 consistent with the State Endangered Species Act? 23 MR. WHITE: Yes, it would. 24 MR. BIRMINGHAM: Okay. Now, we are here talking 25 about, in these proceedings, implementation of the 1995 CAPITOL REPORTERS (916) 923-5447 11462 1 Water Quality Control Plan; is that correct? Is that your 2 understanding? 3 MR. THABAULT: It is my understanding that these 4 proceeding are to develop an implementation plan for that 5 water quality plan, yes. 6 MR. BIRMINGHAM: Now, is it this panel's 7 understanding that the 1995 Water Quality Control Plan was 8 adopted by the State Water Resources Control Board to 9 protect the beneficial uses of waters in the Delta? 10 MR. THABAULT: In its broadest terms I would say, 11 yeah, that is correct. 12 MR. BIRMINGHAM: So if the Board were to adopt or 13 approve a joint point of diversion without the condition 14 suggested by the agencies', plural possessive, proposal, 15 isn't it correct that the operation of that joint point of 16 diversion would have to be consistent with the 1995 Water 17 Quality Control Plan? 18 MR. CAMPBELL: Objection. Misstates the proposal. 19 The condition is not suggested in the proposal, it is a 20 part of the proposal. 21 MR. BIRMINGHAM: Let me read -- 22 C.O. BROWN: Mr. Birmingham. 23 MR. BIRMINGHAM: -- to you, Mr. Brown, the language 24 that is in Mr. Thabault's testimony and here I'm referring 25 to Page 2, Paragraph 8 of the Department of the Interior CAPITOL REPORTERS (916) 923-5447 11463 1 Exhibit 17. It says, 2 (Reading): 3 "The proposal's necessary condition is to defer 4 actual implementation of the joint point of 5 diversion until Reclamation and DWR submit an 6 operating plan that has been developed, 7 evaluated and adopted under the CalFed 8 process," paren, "the plan." 9 I don't believe my question misstates that 10 testimony in any respect. 11 C.O. BROWN: Mr. Campbell. 12 MR. CAMPBELL: It does to the extent that he said 13 that the condition was suggested. The condition is not 14 suggested or implied from this proposal, it is part and 15 parcel of this proposal. So in that sense it does 16 misstate his testimony. 17 C.O. BROWN: Re-ask the question, Mr. Birmingham. 18 MR. BIRMINGHAM: Mr. Thabault, or members of the 19 panel, you have suggested a proposal that contains a 20 condition; is that correct? 21 MR. THABAULT: The proposal is as is stated in 22 Paragraph 7 a combination of the approval of joint point 23 and the condition of developing the plan. 24 MR. BIRMINGHAM: Well, you've said in Paragraph 8 25 Mr. Thabault, "the proposal's necessary condition;" is CAPITOL REPORTERS (916) 923-5447 11464 1 that correct? 2 MR. THABAULT: That's correct. 3 MR. BIRMINGHAM: So you have suggested a proposal 4 that has a necessary condition? 5 MR. THABAULT: That is correct. 6 MR. BIRMINGHAM: You as agencies', possessive; is 7 that correct? 8 MR. THABAULT: That is the verbiage that I have 9 used, yes. 10 MR. BIRMINGHAM: All right. Again, let's go back to 11 the assumption that I asked you to make: That the Board 12 approve the joint point of diversion without the condition 13 suggested by these agencies as part of its proposal. 14 Now, isn't it correct, that the operation of the 15 joint point of diversion would have to be consistent with 16 the 1995 Water Quality Control Plan? 17 Let me ask the question differently. 18 Mr. Renning, I'm going to ask you to make the same 19 assumption: If the State Board approves the joint point 20 of diversion without the condition suggested by the 21 agencies' proposal, does the Bureau of Reclamation intend 22 to operate the joint point of diversion in a manner 23 inconsistent with the 1995 Water Quality Control Plan? 24 MR. RENNING: All of the -- no. All of the 25 operations of the federal and state project would be CAPITOL REPORTERS (916) 923-5447 11465 1 consistent with all of the applicable water quality 2 regulations and environmental regulations that are in 3 force at that time. 4 MR. BIRMINGHAM: Now, Mr. Gage, let me ask you the 5 same question: Let's assume, hypothetically, that the 6 State Board approves a joint point of diversion without 7 the condition suggested as part of the agencies' proposal, 8 would the Department of Water Resources intend to operate 9 the joint point of diversion in a manner inconsistent with 10 the 1995 Water Quality Control Plan? 11 MR. GAGE: We would not. 12 MR. BIRMINGHAM: So with respect to both agencies, 13 the Bureau and the Department of Water Resources would 14 operate the joint point of diversion in a manner 15 consistent with the 1995 Water Quality Control Plan? 16 MR. GAGE: That's correct. 17 MR. BIRMINGHAM: Is that correct, Mr. Renning? 18 MR. RENNING: Yes, that's correct. 19 C.O. BROWN: Mr. Birmingham, how much more time do 20 you need? 21 MR. BIRMINGHAM: Ten minutes. 22 C.O. BROWN: All right. 23 MR. BIRMINGHAM: Now, is it the position of the 24 Federal Government, to the extent that members of this 25 panel can speak for the Federal Government, is it the CAPITOL REPORTERS (916) 923-5447 11466 1 position of the Federal Government that the 1995 Water 2 Quality Control Plan is inadequate to protect water 3 quality in the San Francisco Bay Delta? 4 MR. RENNING: There have been statements made by 5 representatives of the federal agencies that even with the 6 standards that are in place with the 1995 Water Quality 7 Control Plan that there are still problems with certain 8 fish species and with other environmental conditions. And 9 that situation is being addressed through the CalFed 10 process. 11 MR. BIRMINGHAM: Well, now, the Environmental 12 Protection Agency is the federal agency that reviews water 13 quality control plans under the Clean Water Act; is that 14 correct? 15 MR. RENNING: Yes, that's right. 16 MR. BIRMINGHAM: Has the United States Environmental 17 Protection Agency rejected the 1995 Water Quality Control 18 Plan? 19 MR. RENNING: I can't remember precisely what 20 happened, but I think that EPA did accept or approve the 21 1995 Water Quality Control Plan. 22 MR. BIRMINGHAM: And there was a Water Quality 23 Control Plan that was adopted in 1991; is that correct, 24 Mr. Renning? 25 MR. RENNING: Yes. CAPITOL REPORTERS (916) 923-5447 11467 1 MR. BIRMINGHAM: And that was reviewed by the 2 Environmental Protection Agency? 3 MR. RENNING: Yes, I believe it was. 4 MR. BIRMINGHAM: And that Water Quality Control 5 Plan, the one that was adopted in 1991, was rejected by 6 the Environmental Protection Agency? 7 MR. RENNING: Yes, I believe it was. 8 MR. BIRMINGHAM: So if exercising its statutory 9 authority under the Clean Water Act, the Environmental 10 Protection Agency concludes that a Water Quality Control 11 Plan is inadequate it will reject that plan? 12 MR. RENNING: You're talking about issues that I'm 13 not really familiar with and can't really comment on. 14 MR. BIRMINGHAM: Now, Mr. Renning, you talked about 15 the use of the joint point of diversion to supply water 16 for the Cross Valley contractors and that would be under 17 Alternative 3? 18 MR. RENNING: Well, all of the alternatives cover 19 use of the joint point of diversion for the Cross Valley 20 contracts. 21 MR. BIRMINGHAM: Thank you for correcting me. 22 MR. GAGE: Expect for two. 23 MR. RENNING: Expect for two, of course. 24 MR. BIRMINGHAM: Well, the point that I'm trying to 25 make is that under existing conditions the Bureau and the CAPITOL REPORTERS (916) 923-5447 11468 1 State have agreed that the State will wheel water for the 2 Bureau to supply to the Cross Valley contractors? 3 MR. RENNING: Yes, we have. 4 MR. BIRMINGHAM: And you've also made reference to 5 the use of the joint point of diversion to supply water 6 for environmental purposes in the San Joaquin Valley. And 7 in response to an earlier question on cross-examination 8 you said that that was primarily for wildlife refuges? 9 MR. RENNING: In the studies the demands that are 10 placed upon the Central Valley Project that would be 11 effected by deficiencies imposed by the constraints within 12 the studies, those deficiencies are primarily imposed upon 13 agricultural contractors or on the wildlife refuges that 14 are supplied, their deficiency criteria is very similar to 15 that of the agricultural contracts. 16 MR. BIRMINGHAM: Now, prior to the enactment of the 17 Central Valley Improvement Act, did the Bureau of 18 Reclamation provide water to wildlife refuges in the San 19 Joaquin Valley? 20 MR. RENNING: I can't remember exactly what demands 21 we met, but there are certainly several contractors, if 22 you will, that would be considered primarily as wildlife 23 uses. 24 MR. BIRMINGHAM: Now, you're familiar with the 25 Central Valley Project Improvement Act which is in as an CAPITOL REPORTERS (916) 923-5447 11469 1 exhibit as Staff Exhibit 32? 2 MR. RENNING: I'm familiar with certain parts of it, 3 yes. 4 MR. BIRMINGHAM: Okay. Section 3406(d) of the 5 Central Valley Project Improvement Act imposes an 6 obligation on the Department of the Interior to supply 7 water to wildlife refuges in the San Joaquin Valley at 8 specified levels; is that correct, Mr. Renning? 9 MR. RENNING: Yes, that's true. 10 MR. BIRMINGHAM: And the maximum reduction that can 11 be imposed on those deliveries is 25 percent; is that 12 correct? 13 MR. RENNING: I believe that's what it says, yes. 14 MR. BIRMINGHAM: Now, prior to enactment of the 15 CVPIA, the shortages that were imposed on wildlife refuges 16 were very similar to the shortages imposed, if any, on 17 agricultural contractors? 18 MR. RENNING: Yes, I believe that's correct. 19 MR. BIRMINGHAM: And so CVPIA has imposed new 20 obligations to supply additional water to wildlife refuges 21 south of the Delta? 22 MR. RENNING: Yes, it has. 23 MR. BIRMINGHAM: Now, would one use of the joint 24 point of diversion, or potential use of the joint point of 25 diversion be to supply the environmental water to those CAPITOL REPORTERS (916) 923-5447 11470 1 wildlife refuges under CVPIA? 2 MR. RENNING: It certainly could be. 3 MR. BIRMINGHAM: May I have just a moment, 4 Mr. Brown? 5 C.O. BROWN: You may. Would you like to go off the 6 record for a moment? 7 MR. BIRMINGHAM: That would be fine. Thank you. 8 C.O. BROWN: Okay. Off the record for just a 9 moment. 10 (Off the record from 2:06 p.m. to 2:09 p.m.) 11 C.O. BROWN: Okay, back on the record. 12 MR. BIRMINGHAM: Thank you. 13 Now, Mr. White, yesterday in response to a 14 question you indicated that use of the joint point of 15 diversion would move more Sacramento water to the pumps. 16 Do you recall saying that? 17 MR. WHITE: I recall the question and what my answer 18 was, yes. 19 MR. BIRMINGHAM: Now, use of the joint point of 20 diversion would not necessarily result in more Sacramento 21 River water being moved to the pumps, would it? 22 MR. CAMPBELL: I was moving the microphone. Can I 23 ask Counsel to repeat the question? 24 MR. BIRMINGHAM: Sure. Use of the joint point of 25 diversion may -- let me restate the question. CAPITOL REPORTERS (916) 923-5447 11471 1 Use of the joint point of diversion will not in 2 all circumstances result in more Sacramento River water 3 being moved towards the pumps? 4 MR. WHITE: That is correct. 5 MR. BIRMINGHAM: Okay. Mr. Renning, I have just a 6 few more questions of you. Mr. Renning has shouldered a 7 significant portion of this burden for this panel. 8 You referred in your testimony, Department of the 9 Interior Exhibit 10, Revised, to studies that were 10 conducted on some of the proposed conditions that might be 11 considered as part of the plan. 12 MR. RENNING: Yes, that's right. Well, I guess what 13 I should say is that these were conditions that were 14 considered back in May and June of 1998 as part of the 15 No Name Group effort to look at possible ways to use the 16 joint point of diversion. 17 Since that time there has been further -- several 18 other groups that have also been established as part of 19 the CalFed process that have done further studies or are 20 in the process of doing further studies that I personally 21 have not been involved with and those are not covered in 22 my testimony. 23 MR. BIRMINGHAM: Now, yesterday you were asked a 24 question by Mr. Jackson and you didn't really answer the 25 question, because he asked you if any of these CAPITOL REPORTERS (916) 923-5447 11472 1 proposals -- and they're listed on Page 6 of your 2 testimony -- if any of these proposals were irrational? 3 And you didn't say, yes, but you identified limiting the 4 use of the joint point of diversions when conditions with 5 Delta outflow is greater than 50,000 cfs. 6 So let me follow-up with that question: Do you 7 think that's an irrational condition? 8 MR. RENNING: Well -- 9 MR. CAMPBELL: Objection. Vague as to what is meant 10 in this content by "rational." What's the baseline? 11 MR. O'LAUGHLIN: Yeah, what is the baseline? 12 C.O. BROWN: Mr. Birmingham. 13 MR. BIRMINGHAM: Let me ask the question again. 14 Mr. Renning, do you think it's a good idea to 15 limit the use of the joint point of diversion to 16 circumstances when Delta outflow is greater than 50,000 17 cfs? 18 MR. RENNING: Well, there's two ways I'd like to 19 answer that question. First is, I think that's a terribly 20 restrictive condition. And, second, in the context of the 21 group that was put together to discuss this, the idea was 22 that we would develop terms and conditions that would help 23 to advance the use of the joint point of diversion in such 24 a way that there were benefits to everyone concerned. 25 And with a very restrictive condition like this, CAPITOL REPORTERS (916) 923-5447 11473 1 that would mean that use of the joint point of diversion 2 would be very restricted. And that, certainly, for water 3 supply purposes it's use would be very -- very much 4 minimized. And as such I think everyone recognized that 5 that was a condition that it would have some significant 6 problems with. 7 MR. BIRMINGHAM: Now, in fact, on Page 7 you 8 state -- this is Page 7 of your testimony, Department of 9 the Interior Exhibit 10, Revised. 10 (Reading): 11 "Limiting the use of the JPOD to periods when 12 Delta outflow equals or exceeds 50,000 cfs 13 significantly affects use of the joint point; 14 in that a significant amount of the JPOD use is 15 under balanced conditions, that use is 16 eliminated entirely." 17 In other words, the use of the joint point or the 18 benefits of the joint point would be eliminated? 19 MR. RENNING: Under balanced conditions, certainly, 20 the 50,000 cfs criteria would do that. 21 MR. BIRMINGHAM: Now, under balanced conditions -- 22 and this may be a question that a biologist may want to 23 respond to -- isn't it correct that sometimes transferring 24 water from north of the Delta to south of the Delta when 25 the Delta is in balanced conditions could benefit fish? CAPITOL REPORTERS (916) 923-5447 11474 1 MR. THABAULT: Presumably if you might need to be 2 making releases for temperature management or other such 3 actions, it would benefit the fish at that particular 4 location. There may not be any harm, necessarily, 5 associated with the action at another point. 6 MR. BIRMINGHAM: Or in circumstances in which one of 7 the agencies anticipates some limitation that it would 8 like to voluntarily undertake in the future to protect 9 fish, the agency, either DWR or the Bureau, could decide 10 to move water from the north of the Delta to south of the 11 Delta when the Delta is in balanced conditions? 12 MR. THABAULT: Certainly, if we had that much 13 foresight. 14 MR. BIRMINGHAM: Well, in fact, sometimes the Bureau 15 and DWR do have that much foresight; isn't that right, 16 Mr. Thabault? 17 MR. THABAULT: On the water supply. I'm thinking in 18 terms of biological foresight. 19 MR. BIRMINGHAM: I'd like to follow-up on a question 20 that was asked of you, Mr. Renning, that was asked by 21 Board Member Brown. And maybe you can explain it to me. 22 I believe you said that when the -- when the -- using the 23 joint point of diversion to export water when the Delta is 24 in surplus conditions could result in increased yield to 25 the projects. CAPITOL REPORTERS (916) 923-5447 11475 1 Do you recall responding to a question in that 2 manner? 3 MR. RENNING: Yes. 4 MR. BIRMINGHAM: Could you, please, explain to me 5 the basis of your answer to Board Member Brown's question, 6 or stated alternatively: 7 Why would using the joint point of diversion in 8 circumstances when the Delta is in surplus conditions 9 increase the yield of the project? 10 MR. RENNING: Well, I actually answered that 11 question twice and the second time I had thought about it 12 a bit more. And the answer to that question is somewhat 13 complicated, because there are different definitions of 14 what "yield" is. 15 And the joint point of diversion, it's not used 16 that much during critically dry periods, because the CVP 17 has more than enough capacity to move whatever water is 18 available to it. 19 In other periods though, use of the joint point 20 would enable the CVP to divert more water to meet project 21 demands, or to not impose as a -- great deficiencies as 22 would otherwise be imposed under those circumstances where 23 the hydrologic conditions are wetter than critical 24 conditions. 25 That would not necessarily increase the yield of CAPITOL REPORTERS (916) 923-5447 11476 1 the project in that yield is usually defined as project 2 deliveries over the critical period. But it would, 3 certainly, increase the annual average deliveries of the 4 project which is shown on the exhibits that are attached 5 to my testimony. 6 MR. BIRMINGHAM: So in other words, historically, 7 there was a concept of water wasting to the ocean. Have 8 you ever heard that term "wasting to the ocean"? 9 MR. RENNING: It's funny that you should mention 10 that, I think that those terms are actually used in 11 Decision 1020. 12 MR. BIRMINGHAM: In fact, I think that the term is 13 used in Decision 1020. So you are familiar with the 14 concept of "water wasting to the ocean"? 15 MR. RENNING: Yes. 16 MR. BIRMINGHAM: What does that term mean, "wasting 17 to the ocean"? 18 MR. RENNING: Well, I think historically it was the 19 thought of many people in California that extremely high 20 flows out through San Francisco and to the bay were a, 21 quote, "waste of freshwater." And that if that water 22 would be diverted and used that that would be a great 23 thing to do for California. 24 MR. BIRMINGHAM: Now, in terms of using the joint 25 point when the Delta is in surplus, what does that term CAPITOL REPORTERS (916) 923-5447 11477 1 "Delta in surplus mean"? 2 MR. RENNING: It means that there is more water 3 flowing into the Delta than is necessary to meet the Delta 4 standards and the export needs of the projects. 5 MR. BIRMINGHAM: Now, the Delta standards include 6 Delta outflow; is that correct? 7 MR. RENNING: Yes, to the extent that there is an 8 outflow criteria that exists at whatever time you're 9 talking about. 10 MR. BIRMINGHAM: So when the Delta is in surplus 11 there is more water in the Delta than the State Board has 12 determined is required for Delta outflow? 13 MR. RENNING: Yes. That's right. 14 MR. BIRMINGHAM: Now, going back to this concept of 15 using the joint point of diversions when the Delta is in 16 surplus, you'd be able to capture some portion of that 17 water which is in excess of the needs of Delta outflow and 18 other requirements of the Delta and divert that water to 19 storage in San Luis Reservoir or to direct use? 20 MR. RENNING: Yes, that's right. And the joint 21 point could also be used in this sense that there are 22 different degrees of excess outflow. And when there are 23 very high levels of excess outflow, that is generally a 24 time when diversions have very, very minimal environmental 25 affects. CAPITOL REPORTERS (916) 923-5447 11478 1 MR. BIRMINGHAM: Now, if the Bureau is able to 2 divert that excess water when the Delta is in surplus 3 through the use of the joint point, it conceivably would 4 be able to fill San Luis Reservoir earlier than it 5 otherwise might fill, or even fill in circumstances when 6 without the joint point San Luis wouldn't fill? 7 MR. RENNING: That's right. 8 MR. BIRMINGHAM: Now, if you're able to capture some 9 of that excess water when the Delta is in surplus through 10 the use of joint point, does that mean the Bureau could 11 leave water in storage in reservoirs north of the Delta? 12 MR. RENNING: Conceivably it could, because our 13 water allocations are based upon the quantities of water 14 that we have available to us in storage in our reservoirs 15 including, of course, San Luis Reservoir. And to the 16 extent that we have more water in the San Luis Reservoir 17 that could mean that we would have to place less of a 18 burden, so to speak, on our northern reservoirs. 19 MR. BIRMINGHAM: So when the Delta is in balance, if 20 you've been able to capture some of the surplus water when 21 the Delta was in surplus, excess conditions, when the 22 Delta is subsequently in balance you may be able to retain 23 water in storage in reservoirs north of the Delta that 24 otherwise would have had been released to meet the demands 25 of export contractors? CAPITOL REPORTERS (916) 923-5447 11479 1 MR. RENNING: Yes, that's possible. 2 MR. BIRMINGHAM: So, theoretically, use of the joint 3 point could benefit CVP contractors in the Sacramento 4 Valley? 5 MR. RENNING: Conceivably that could happen, yes. 6 MR. BIRMINGHAM: And the way they would benefit is 7 the use of joint point would mean there's more water in 8 north of Delta reservoirs to supply the Sacramento Valley 9 contractors? 10 MR. RENNING: Conceivably that could happen, yes. 11 MR. BIRMINGHAM: I have no further questions. 12 However, I would like to reserve my right to conduct 13 further cross-examination of Mr. White and Dr. Kjelson on 14 issues pertaining to their testimony. 15 C.O. BROWN: I understand, Mr. Birmingham. 16 MR. BIRMINGHAM: Thank you. 17 C.O. BROWN: Thank you. It's 25 after now, we'll 18 take our 12-minute break. 19 (Recess taken from 2:25 p.m. to 2:39 p.m.) 20 C.O. STUBCHAER: Okay. We'll call the hearing back 21 to order. 22 Good afternoon, Mr. Suyeyasu. 23 MR. SUYEYASU: Good afternoon, Mr. Stubchaer. 24 C.O. STUBCHAER: You scared the Fish and Game there. 25 MR. SUYEYASU: You okay? CAPITOL REPORTERS (916) 923-5447 11480 1 ---oOo--- 2 CROSS-EXAMINATION OF THE DEPARTMENT OF THE INTERIOR, 3 DEPARTMENT OF FISH AND GAME AND 4 THE DEPARTMENT OF WATER RESOURCES 5 BY THE ENVIRONMENTAL DEFENSE FUND 6 BY KEN SUYEYASU 7 MR. SUYEYASU: Ken Suyeyasu on behalf of the 8 Environmental Defense Fund. I'd like to start by 9 following up on a little bit of the examination that 10 Mr. Birmingham just completed. 11 He asked generally, but Mr. Renning responded. 12 Anybody else can pipe in: Whether or not you believed 13 that the 1995 Water Quality Control Plan was adequate to 14 protect water quality within the Delta? 15 Is that correct? 16 MR. RENNING: Yes, I answered that question. And I 17 said that it's the position of some of the federal 18 agencies that even with the new Water Quality Control Plan 19 that there are still problems within the Delta with 20 fisheries and with other aspects of environmental 21 conditions and that certainly the 1995 Water Quality 22 Control Plan is not one-hundred percent protective of 23 everything in the estuary. 24 MR. SUYEYASU: Could you give me some examples of 25 possible shortfalls within the 1995 Water Quality Control CAPITOL REPORTERS (916) 923-5447 11481 1 Plan? 2 MR. RENNING: The fisheries. 3 MR. SUYEYASU: Yes. 4 MR. THABAULT: I'll let Mr. White jump in, I believe 5 when the Water Quality Control Plan was developed it 6 specifically did not address criteria in the early fall, 7 late fall and the early winter which overlap with 8 spring-run salmon. And as a result there were not 9 specific criteria placed in the early fall which may have 10 covered some stripe bass life stages and some other -- for 11 instance, sturgeon and that sort of thing. 12 MR. SUYEYASU: In your opinion, what type of 13 modifications could be done to the Water Quality Control 14 Plan to improve protection for the spring-run salmon? 15 MR. SANDINO: I'll object to this. 16 MR. TURNER: I'll object to this. 17 MR. SEXTON: I'll object to this. 18 C.O. STUBCHAER: All of you object. 19 MR. SANDINO: I'm going to object on relevancy. I'm 20 not sure what the others are going to object on, but I 21 don't believe that this is what the notice of hearing is. 22 It is to implement the current Water Quality Control Plan 23 not to modify the plan, which might be the subject of 24 another Board hearing. 25 C.O. STUBCHAER: Mr. Turner? CAPITOL REPORTERS (916) 923-5447 11482 1 MR. TURNER: I concur. 2 C.O. STUBCHAER: Mr. Sexton? 3 MR. SEXTON: Great minds think alike. 4 C.O. STUBCHAER: Mr. Suyeyasu. 5 MR. SUYEYASU: I was going to delve into whether or 6 not some of the excess yield, if you want to call it that, 7 that can be generated by the Water Quality Control Plan 8 can be used to benefit fisheries as opposed to possibly 9 used to increase water users' allocations in a manner that 10 will support all the species of the Delta in, perhaps, 11 ways that the Water Quality Control Plan is currently not 12 capable of supplying. And I think that's an alternative 13 that should be put before the Board. 14 C.O. STUBCHAER: Generated by the Water Quality 15 Control Plan or by the joint points of diversion? 16 MR. SUYEYASU: My apology. The water is generated 17 by the joint point of diversion, but it can provide extra 18 flows through the Delta above and beyond those called for 19 in the Water Quality Control Plan. That's an issue that 20 I'd like to get into with these witnesses. 21 C.O. STUBCHAER: I do think it is getting beyond the 22 scope of this phase of the hearing to go back and revisit 23 the Water Quality Control Plan. You could, perhaps, 24 approach it by asking if additional water would be helpful 25 to the fish without getting into redoing the Water Quality CAPITOL REPORTERS (916) 923-5447 11483 1 Control Plan. 2 MR. SUYEYASU: Thank you, Mr. Stubchaer. 3 Mr. Thabault, would the use of additional flows 4 through the Delta be useful to providing additional 5 protections for spring-run salmon? 6 MR. THABAULT: I think on the specifics of 7 spring-run I'd like to defer to Mr. White since he's a 8 little more familiar with the topic, if that's okay. 9 MR. SUYEYASU: That is great. 10 MR. WHITE: I think you could argue that additional 11 flows would be a benefit. In addition, I believe 12 underlying our concept for how joint point of diversion 13 might be used to provide fishery benefits, we believe that 14 the judicious use of joint point of diversion can allow 15 entrainment impacts to be avoided at certain times. And 16 that on balance a benefit to spring-run can be achieved by 17 that means. 18 MR. SUYEYASU: Mr. Birmingham also talked about if 19 surplus water flowing out of the Delta is diverted to the 20 San Luis Reservoir through the use of the joint point of 21 diversion that that would allow the Central Valley Project 22 to store additional water north of the Delta. 23 Would such a process allow the resource agencies 24 to reduce exports from the Delta at a later point? 25 MR. THABAULT: I would suppose that if there was the CAPITOL REPORTERS (916) 923-5447 11484 1 operational capability to move that stored water later in 2 time when we need it, in lieu of Delta fishery protection 3 I believe that that's a possibility, yes. 4 MR. SUYEYASU: Mr. Birmingham talked about the 5 surplus water going out of the Delta and he said that it 6 previously had been identified as "wasted water." Does 7 anybody on this panel agree with that term in terms of its 8 sort of pejorative value? 9 MR. BIRMINGHAM: Objection. Relevance. 10 C.O. STUBCHAER: You brought the term up, 11 Mr. Birmingham, so I'm going to allow the question. 12 MR. BIRMINGHAM: Mr. Stubchaer, the term that I 13 brought up is a term that is contained, as the witness 14 observed, in the Water Rights Decision issued by this 15 Board. 16 Whether members of this panel think that that's a 17 pejorative term is completely irrelevant to the issues 18 that are being addressed by this Board. 19 C.O. STUBCHAER: I'm going to permit the question to 20 be answered but, perhaps, you can use a different word 21 other than "pejorative." Re-ask the question. 22 MR. SUYEYASU: Do members of this panel believe that 23 water in surplus to required Delta outflows is water 24 without any environmental benefits? 25 MR. RENNING: No, I don't think that that is a CAPITOL REPORTERS (916) 923-5447 11485 1 commonly held belief today, but I think that certainly 2 when there are extremely high flows, say flows on the 3 order of hundreds of thousands of cfs, that diversions at 4 that time will have very minimal environmental effects. 5 MR. SUYEYASU: Okay. 6 MR. RENNING: And those might be times that the 7 joint point of diversion could very effectively be used. 8 MR. SUYEYASU: Thank you. Now, Mr. Birmingham also 9 asked you some questions about the graphs on Page 13-36 of 10 the Draft EIR relating to the studies on salmon survival. 11 Did those studies on Page 13-36 do any analysis of the 12 impacts on spring-run salmon? 13 MR. ROBINSON: No, they didn't. 14 MR. SUYEYASU: Will that type of analysis be 15 provided in the Board's final EIR to your knowledge? 16 MR. ROBINSON: That's my understanding that the 17 Board staff is performing an analysis similar to the ones 18 presented on Page 13-36 that relate to spring-run. 19 MR. SUYEYASU: I can hold this question until later 20 when Mr. Kjelson is here, if you prefer, but: Do you have 21 any opinions as to what the results of that study might 22 suggest as compared to the studies listed on Page 13-36? 23 C.O. STUBCHAER: Mr. Kjelson is here Mr. Suyeyasu. 24 MR. SUYEYASU: Okay. I mean as a member of the 25 panel, sorry. CAPITOL REPORTERS (916) 923-5447 11486 1 MR. ROBINSON: I wouldn't want to speculate at this 2 time. 3 MR. SUYEYASU: Okay. 4 MR. WHITE: I think you could say in a general sense 5 knowing that the parameters in the survival model include 6 exports and that during the periods when we know juvenile 7 spring-run will be in the Delta, exports are observed to 8 increase through the use of joint points of diversion in 9 many months, that it is possible that an adverse impact to 10 spring-run could be the result. 11 MR. SUYEYASU: Thank you. Now, if I could draw your 12 attention to DOI Exhibit 10-D. Do you have a copy of that 13 overhead? 14 DOI Exhibit 10-D compares total CVP and State 15 Water Project deliveries to those provided under 16 Alternative 2. I guess I'll direct these questions to 17 Mr. Renning. 18 Is it your understanding that Alternative 2 is a 19 description of the circumstances that would occur without 20 the use of the joint point of diversion? 21 MR. RENNING: Yes. 22 MR. SUYEYASU: And is it your understanding that 23 Alternative 3, the circumstances that would occur where 24 the joint point of diversion is only used to meet your 25 existing contracts that are related to the Banks pump CAPITOL REPORTERS (916) 923-5447 11487 1 plant? 2 MR. RENNING: Yes, that's right. 3 MR. SUYEYASU: Now, Alternative 4, is it your 4 understanding that this alternative is one that would meet 5 the existing contracts that go through the Banks pumping 6 plant at this time plus allow for some make-up water 7 related to fishery actions? 8 MR. RENNING: Yes, that was the way that Alternative 9 4 was modeled. It includes the existing contracts and it 10 includes a fisheries protection action and a make up of 11 the -- for the capacity lost by that fishery's protection 12 action. 13 And as I explained earlier, we were not able to 14 precisely match the make up with the capacity loss. So 15 Alternative 4 overstates, to a certain degree, the amount 16 of water that would be pumped under that concept. 17 MR. SUYEYASU: Now, it's Interior's position that 18 you would like the Board to adopt Alternative 4 as the 19 permitted use of the joint point up until the adoption of 20 a CalFed plan is approved by the Board; is that correct? 21 MR. RENNING: Yes. That's right. 22 MR. SUYEYASU: And is it your testimony that 23 Alternative 4 does not differ in its limitations from what 24 is currently permitted or limited under Decision 98-9; is 25 that correct? CAPITOL REPORTERS (916) 923-5447 11488 1 MR. RENNING: Yes, that's more or less correct with, 2 of course -- of course, we're asking that the existing 3 contracts be included within the use of the joint point of 4 diversion that the -- that we would hope that the Board 5 would permit. 6 MR. SUYEYASU: And those deliveries are not 7 currently permitted under Decision 98-9? 8 MR. RENNING: They are not addressed under 98-9. 9 MR. SUYEYASU: Okay. Now, one of the terms of 98-9 10 is that, 11 (Reading): 12 "The coordinated operations shall not result in 13 an increase in annual exports above that which 14 would have exported in the absence of 15 coordinated operations." 16 Is this panel suggesting to this Board that they 17 include a similar limitation in the interim authorization 18 for joint point of diversion? 19 MR. RENNING: To the extent that the concepts in 20 98-9, that is replacement only for capacity lost through 21 fishery protection actions, that this would be part of the 22 proposal that we are making. It would be a limitation on 23 the use of the joint point of diversion. 24 MR. SUYEYASU: So you will advocate to the Board 25 that it adopt an interim order that would not result in CAPITOL REPORTERS (916) 923-5447 11489 1 increase in annual diversions above that which would occur 2 in the absence of joint point; is that correct? 3 MR. RENNING: In the absence of the fishery 4 protection actions that were being undertaken, yes. 5 MR. SUYEYASU: Now, the level of exports that would 6 occur in the absence of the joint point of diversion 7 could, generally, be described as those of Alternative 2; 8 is that correct? 9 MR. RENNING: No. It would be Alternative 3, 10 because we're presuming that the existing contracts are -- 11 we are still going to be able to -- that we will still be 12 using the joint point of diversion for those existing 13 contracts. 14 MR. SUYEYASU: Okay. And you are encouraging the 15 Board to adopt Alternative 4 as interim limitations; is 16 that correct? 17 MR. RENNING: Yes. 18 MR. SUYEYASU: And under Alternative 4 you foresee 19 increase CVP and State Water Projects' delivery over 20 Alternative 3; is that correct? 21 MR. RENNING: No. In actual practice, Alternative 4 22 and Alternative 3 on an annual basis would be identical. 23 And this goes to what I explained, that we tried to model 24 a fish protection action with a precise make-up for that 25 action, but we were not able to do that. CAPITOL REPORTERS (916) 923-5447 11490 1 The program steps to go -- that we would have to 2 do were deemed to be too complicated, or that we couldn't 3 accomplish them in the time that we had available to us. 4 MR. SUYEYASU: Okay. And that is the same that is 5 currently occurring under Decision 98-9 that you have no 6 increased diversions; is that correct? 7 MR. RENNING: Yes. 8 MR. SUYEYASU: Now, under the Central Valley Project 9 Improvement Act (b)(2) fishery actions, there are certain 10 points when exports are reduced as a part of that plan; is 11 that correct? 12 MR. RENNING: That's right. 13 MR. SUYEYASU: And has the Bureau sought to use the 14 joint point of diversion to make up those lost exports? 15 MR. RENNING: Yes. We will seek to use the joint 16 point of diversion to make up for those lost exports. 17 MR. SUYEYASU: So absent the joint point of 18 diversion, would you be able to make up all of those lost 19 exports? 20 MR. RENNING: Under many circumstances we would not. 21 In the recent past we have undertaken some of those 22 actions, they have not been able to have been made up 23 under the joint point of diversion. However, the 24 hydrologic conditions that occurred in the following year, 25 essentially, made the matter moot because they more or CAPITOL REPORTERS (916) 923-5447 11491 1 less wiped out what the impact of those actions were. 2 MR. SUYEYASU: But you foresee that with the joint 3 point of diversion under 98-9 you will be able to 4 foreseeably, likely make up more water even without the 5 joint point of diversion; is that correct? 6 MR. RENNING: We can't make up -- we can't make up 7 water without the use of the joint point of diversion. 8 MR. SUYEYASU: Okay. 9 MR. RENNING: Once the capacity is lost, it's lost. 10 MR. SUYEYASU: So under 98-9 you foresee your 11 exports being greater than they would be in the absence of 12 98-9; is that correct? 13 MR. RENNING: No. 14 MR. SUYEYASU: Sorry, if I could take a few steps 15 back. You intend to seek to do make-up pumping using the 16 joint point of diversion to make up lost exports due to 17 the CVPIA (b)(2) actions; is that correct? 18 MR. RENNING: Among other things, yes. 19 MR. SUYEYASU: And that make-up pumping is above and 20 beyond what you would be able to do without the joint 21 point of diversion; is that correct? 22 MR. RENNING: Well, make-up pumping for the CVP has 23 to be joint point of diversions, because of the CVP 24 capacity limit. At other times of the year we are either 25 pumping at our physical capacity, or whatever the CAPITOL REPORTERS (916) 923-5447 11492 1 limitations are that are imposed on us by the ESA or by 2 the Water Quality Control Plan, we don't have the ability 3 to make up. 4 MR. SUYEYASU: So under 98-9 you do have the ability 5 to make up, however; is that correct? 6 MR. RENNING: Yes. Under 98-9 we would have the 7 ability to use the joint point of diversion to make up 8 those times that we lost capacity. 9 MR. SUYEYASU: And would that make-up allow you to 10 increase your exports? 11 MR. RENNING: Over the year it would end up being 12 the same. There would, certainly, be higher diversions 13 from the Delta at particular times while water was being 14 made up, put that would be done in such a way as to 15 minimize the environmental effects of doing that. 16 MR. SUYEYASU: So is it your position that absent 17 the use of the joint point of diversion you would not have 18 to reduce your exports at the pump under the (b)(2) 19 actions? 20 MR. RENNING: No. Absent 98-9 we would be stuck 21 with having to reduce our diversions at whatever times 22 were necessary to meet those (b)(2) actions and we would 23 have to live with that. We would not be able to make it 24 up. And the exports that we would make in that year would 25 be less than what we would be doing if we didn't have to CAPITOL REPORTERS (916) 923-5447 11493 1 comply with that section of the CVPIA. 2 MR. SUYEYASU: And is that what you foresee would 3 happen under your proposed Alternative 4? 4 MR. RENNING: Alternative -- 5 MR. SUYEYASU: Be able to make up that lost water? 6 MR. RENNING: Yes. 7 MR. SUYEYASU: So do you believe that being able to 8 make up that lost water would result in an increase of 9 annual exports above that which would have been exported 10 in the absence of the coordinated operations? 11 MR. RENNING: I think we're talking about two 12 different situations. I believe I understand your 13 question and your point. And if we did not have the use 14 of the joint point available to us and we had to comply 15 with various measures that caused us to lose capacity, 16 that level of annual exports would be less than what we 17 would do under the same circumstances when we had use of 18 the joint point of diversion to make up for four times at 19 which we lost capacity at the CVP plant. 20 MR. SUYEYASU: And that's what you foresee the Board 21 authorizing under Alternative 4; is that correct? 22 MR. RENNING: Yes. 23 MR. SUYEYASU: And you believe that under 24 Alternative 4 you would have a similar term as under 25 Alternative 98-9 that said that the coordinated operations CAPITOL REPORTERS (916) 923-5447 11494 1 shall not result in increase of annual exports above that 2 which would have been exported in the absence of 3 coordinated operations; is that correct? 4 MR. RENNING: Yes, that's right, expect, of course, 5 for Cross Valley. 6 MR. SUYEYASU: Yes. Okay. This is I guess for 7 anyone on the panel: Do you, in general, agree with the 8 proposed testimony of Martin Kjelson that, quote, unquote, 9 (Reading): 10 "It is Interior's intent to work with all 11 interested parties in the CalFed process to 12 develop a plan, including use of joint point of 13 diversion, designed to achieve to the greatest 14 extent possible a net benefit to the aquatic 15 resources while improving water supply 16 reliability." 17 Do members of the panel agree with that 18 statement? 19 MR. THABAULT: I believe that's generally consistent 20 with the theme of all our testimony, yeah. 21 MR. SUYEYASU: Now, your proposed use of the joint 22 point of diversion following adoption of the CalFed plan 23 does not necessarily use the joint point alone to maximize 24 benefits for fisheries; is that correct? 25 MR. THABAULT: That's correct. The CalFed plan has CAPITOL REPORTERS (916) 923-5447 11495 1 a number of elements associated with it which in mass 2 balance would benefit fish and other resources. 3 MR. SUYEYASU: Now, during the interim period before 4 CalFed adopts a final plan, if they adopt a final plan, is 5 it your position that the Department of the Interior 6 should use the joint point of diversion in a manner 7 designed to achieve to the greatest extent possible a net 8 benefit to aquatic resources while improving water supply 9 reliability? 10 MR. THABAULT: What we've testified to is that 11 Interior through the U.S. Bureau of Reclamation would like 12 to meet its existing contracts and through 98-9, which 13 you're implementing the joint point of diversion, to make 14 up actions that are beneficial for fish. So by definition 15 you're making things better for fish under that element. 16 MR. SUYEYASU: But in your interim proposal you do 17 not seek to achieve, quote, unquote, 18 (Reading): 19 "The greatest -- to achieve to the greatest 20 extent possible a net benefit to aquatic 21 resources," is that correct? 22 MR. THABAULT: I agree with Mr. Renning, that's how 23 I was going to answer it, within the content of 98-9 I 24 think that's precisely what we're trying to do. 25 MR. SUYEYASU: And under Alternative 4 that's also CAPITOL REPORTERS (916) 923-5447 11496 1 what you're trying to do? 2 MR. THABAULT: We are trying to implement actions to 3 the maximum possible with the facilities that we have to 4 protect fish and facilitate the delivery of that water to 5 contractors through joint point if that can at all 6 possibly happen. 7 MR. SUYEYASU: But it is your testimony that during 8 the interim period you are seeking to achieve the greatest 9 benefit possible for the fish through the use of joint 10 point diversion? 11 MR. THABAULT: Within the context of 98-9 its 12 intended purpose is to implement joint point for the 13 benefit of fish. 14 MR. SUYEYASU: If you were to be presented with a 15 plan for the use of the joint point of diversion that 16 provided greater benefits for the fisheries than is 17 provided in Alternative 2, would you advocate that the 18 Board adopt that alternative during the interim period? 19 MR. RENNING: Than Alternative 2? 20 MR. THABAULT: Alternative 2 or Alternative 4. 21 MR. SUYEYASU: Pardon me, Alternative 4. Sorry. 22 MR. THABAULT: I think as a collective of agencies 23 since there are multiple purposes associated with our all 24 being here I think we would want to evaluate the whole 25 context of what the proposal would be. CAPITOL REPORTERS (916) 923-5447 11497 1 MR. SUYEYASU: So if there were a proposal that 2 could provide greater benefits to fisheries than 3 Alternative 4 you could not necessarily accept it; is that 4 correct? 5 MR. THABAULT: There are -- 6 MR. SUYEYASU: You would not necessarily advocate 7 it? 8 MR. THABAULT: I think in the context of the panel 9 that is here, there are multiple needs and you would want 10 to make sure the needs of the agencies represented here 11 are also met as well. Environmental protection in the 12 interim in the net context is not the sole -- necessarily 13 the sole point, but it is definitely an important one. 14 MR. SUYEYASU: So during the interim period you are 15 not seeking an alternative that is, quote, unquote, 16 (Reading): 17 "Designed to achieve to the greatest extent 18 possible a net benefit to aquatic resources." 19 Is that correct? 20 MR. SANDINO: Objection. Asked and answered. 21 MR. ATLAS: I think it misstates the testimony as 22 well. 23 C.O. STUBCHAER: Objection sustained. 24 MR. SUYEYASU: Mr. Stubchaer? 25 C.O. STUBCHAER: Yes. CAPITOL REPORTERS (916) 923-5447 11498 1 MR. SUYEYASU: On which basis was it sustained? 2 C.O. STUBCHAER: That it misstates the testimony. 3 MR. SUYEYASU: Okay. Would you agree, then, that it 4 is the policy of the agencies represented at this table 5 that the interim alternative that you are proposing to the 6 Board is not necessarily, quote, unquote, "designed to 7 achieve to the greatest extent possible a net benefit to 8 aquatic resources"? 9 MR. TURNER: Objection. Asked and answered. 10 MR. CAMPBELL: I'll join in that as well. 11 C.O. STUBCHAER: I'll sustain that as well. It has 12 been asked and answered. 13 MR. SUYEYASU: Now, Mr. Birmingham discussed that 14 through the use of joint point of diversion additional 15 water could be stored in the north of Delta reservoirs; is 16 that correct? 17 MR. RENNING: There conceivably are circumstances 18 whereby our ability to fill San Luis Reservoir early, or 19 to fill it when it otherwise would not be able to be 20 filled could result in us having greater levels of storage 21 in north of Delta reservoirs in the following summer. 22 MR. SUYEYASU: Now, in your testimony, Mr. Renning, 23 I believe you stated that under Alternative 5 the use of 24 the joint point of diversion will increase CVP deliveries 25 by an average of 135,000 acre-feet per year; is that CAPITOL REPORTERS (916) 923-5447 11499 1 correct? 2 MR. RENNING: Yes. That's right. 3 MR. SUYEYASU: And the maximum -- 4 MR. RENNING: It would increase that over 5 Alternative 2. 6 MR. SUYEYASU: Over Alternative 2? 7 MR. RENNING: Yes. 8 MR. SUYEYASU: And if the joint point of diversion 9 were not authorized, what would that 135,000 acre-feet 10 otherwise be used for by the Bureau? 11 MR. BIRMINGHAM: Objection. Calls for speculation. 12 C.O. STUBCHAER: The witnesses may answer to the 13 best of their ability. 14 MR. RENNING: Well, that 135,000 acre-feet some of 15 it would end up being a greater deficiency imposed upon 16 our contractors. And some of that would just be an 17 increase in Delta outflow. 18 MR. SUYEYASU: Might there be any benefits to the 19 fisheries of that Delta outflow? 20 MR. BIRMINGHAM: Objection. Asked and answered. 21 C.O. STUBCHAER: Yes, Mr. Suyeyasu, we did have 22 extensive discussion. 23 MR. SUYEYASU: I'll move on. 24 Now, if the joint point of diversion is used to 25 increase Delta exports or CVP deliveries by 135,000 CAPITOL REPORTERS (916) 923-5447 11500 1 acre-feet per year, could you also reduce deliveries at 2 other times of the year -- let me rephrase that. 3 If the use of the joint point of diversion can be 4 used to increase deliveries by on average 135,000 5 acre-feet per year, could, under the use of the joint 6 point of diversion, deliveries be reduced at other times 7 of year than when the joint point is used by 135,000 8 acre-feet per year without impacting any Central Valley 9 Project contractors? 10 MR. BIRMINGHAM: Objection. Ambiguous. 11 C.O. STUBCHAER: I think the question could be 12 clarified a little bit. 13 MR. SUYEYASU: Mr. Renning, if you were to use 14 Alternative 5 and used the joint point of diversion as 15 permitted under that alternative, could you reduce 16 diversions by, on average, 135,000 acre-feet per year at 17 times when the joint point of diversion was not in use 18 without causing any impact on CVP contractors? 19 MR. RENNING: Well, conceivably you could have a 20 situation whereby we would make a decision that we were 21 not going to use the joint point of diversion to mitigate 22 for the levels of deficiencies that we would otherwise 23 impose upon our users; and then use the joint point of 24 diversion, while keeping those same levels of deliveries, 25 and by doing that that would probably result in lower CAPITOL REPORTERS (916) 923-5447 11501 1 diversions at some time of the year that conceivably could 2 be judged to have some sort of environmental benefit. But 3 I would think that operating in that kind of a way would 4 not be a very logical way to operate. 5 MR. SUYEYASU: And why would it not be very logical? 6 MR. RENNING: You would have to make all sorts of 7 assumptions as to what you were going to be doing in the 8 absence of having facilities available for you to use, 9 then deciding what that would be and then using the 10 facilities and then holding yourself to deliveries that 11 you would otherwise be able to make. 12 It would not seem to be a very logical way to 13 operate. And I'm sure if we tried doing that our water 14 users would complain about it. 15 MR. SUYEYASU: That would be expected. Would such a 16 use of the joint point of diversion, however illogical, 17 might be the word, could that use of the joint point of 18 diversion be used to improve benefits for the fisheries? 19 MR. RENNING: Perhaps, in the way that I've 20 explained with all of the problems that might be 21 associated with it, it would be a difficult mode of 22 operation to implement. 23 MR. SUYEYASU: And in assessing alternatives under 24 the Draft EIR, did you collectively look at any 25 alternative that sought to maximize benefits to fisheries? CAPITOL REPORTERS (916) 923-5447 11502 1 MR. RENNING: Well, I guess you could say that 2 Alternative 2, where there isn't use of the joint point of 3 diversion -- well, I'm sorry. I take that back. 4 No, there was not any alternative that we used 5 where we attempted to maximize or to change the benefits 6 to the fishery, because the assumption in these studies 7 was that the studies were going to be operated to meet the 8 standards that were in place. And we were not going to 9 impose any different environmental standard on the 10 studies. The same standards are in place in all of the 11 various alternatives. 12 In the context of these studies, which are our 13 long-term studies run on a monthly time set, there are 14 potential ways in which the joint point of diversion could 15 be used on a shorter basis, a shorter time basis that 16 these studies would not capture that we would expect. If 17 we were permitted to use the joint point of diversion that 18 those kind of things could be undertaken in actual 19 operations such as switching back and forth between 20 pumping plants, or even shutting down pumping for short 21 periods of times and then being able to regain that 22 pumping at later periods of time through the use of the 23 joint point. 24 MR. SUYEYASU: And it's your testimony that would 25 provide additional benefits to the fisheries? CAPITOL REPORTERS (916) 923-5447 11503 1 MR. RENNING: Yes, it could. 2 MR. SUYEYASU: Mr. Gage, if I might ask you just a 3 few questions. If the joint point of diversion were 4 utilized by the Department of the Interior in a manner 5 that increased total Delta outflow above regulatory 6 requirements -- does that make sense to you? 7 MR. GAGE: I don't follow you how their operation is 8 going to increase Delta outflow. 9 MR. SUYEYASU: Let's assume -- 10 MR. GAGE: It could on a short period of time. You 11 mean like, for instance, when there's a fishery problem 12 and they curtail for a short period of time? 13 MR. SUYEYASU: Let me describe to you a scenario 14 that makes sense. During certain times of the year there 15 is surplus Delta outflow above regulatory requirements; is 16 that correct? 17 MR. GAGE: In most years, yes. 18 MR. SUYEYASU: And part of the proposed use of joint 19 point of diversion is to use the capacity at Banks pumping 20 plant to divert some of that surplus water; is that 21 correct? 22 MR. GAGE: That is one use, yes. 23 MR. SUYEYASU: And by diverting that extra water, as 24 Mr. Birmingham pointed out, there would then be possibly 25 extra water stored, you could possibly store extra water CAPITOL REPORTERS (916) 923-5447 11504 1 in Shasta because you would not need to fill San Luis at a 2 later time of the year; is that correct? 3 MR. GAGE: That is possible, yes. 4 MR. SUYEYASU: And it is possible that the 5 Department of the Interior could release that extra water 6 stored in Shasta to provide increased Delta outflows for 7 fishery benefits; is that correct? 8 MR. GAGE: Well, I believe that's really a question 9 for Interior on what their call would be on their releases 10 from Shasta, but they have certain mandates, as we do, 11 that call for releases of water and those are the releases 12 we make. 13 MR. SUYEYASU: Mr. Renning, if I may ask you very 14 quickly: It would be permissible for you to release that 15 extra storage in Shasta for the sole benefit of fisheries 16 by letting it pass through the Delta; is that correct? 17 MR. RENNING: Well, conceivably that could be done, 18 but I would think that the situation that -- the way that 19 we would analyze the situation would be that if we had -- 20 had, quote, "extra water" in Shasta, that would mean that 21 our ability to meet our temperature control -- the ability 22 and flexibility that we would have to comply with our 23 temperature control requirements in the upper Sacramento 24 River would be greater. And that we would not necessarily 25 try to release more water for a Delta requirement under CAPITOL REPORTERS (916) 923-5447 11505 1 that circumstance. 2 I think that -- I'm certainly not a fishery 3 biologist, but I think that the circumstances that -- or 4 the way that we would analyze this would be that it's much 5 more important to have that flexibility in the upper 6 Sacramento River for temperature control than to meet an 7 increased Delta outflow requirement that -- well, at least 8 at this point in time I have no idea what that might be 9 for. 10 MR. SUYEYASU: Mr. White and Mr. Thabault, is it 11 possible that water could be released from Shasta to 12 increase Delta outflow for the benefit of spring-run 13 salmon? 14 MR. WHITE: That's certainly a possibility. 15 MR. SUYEYASU: Do you believe that would ever be a 16 wise use of water? 17 MR. WHITE: It's very difficult to evaluate the 18 wisdom of a particular operation strategy in isolation 19 from the other fish and wildlife issues that you would 20 want to consider simultaneously. 21 MR. THABAULT: If I could add, I think it would 22 entirely depend on the circumstances. If your sole reason 23 is to gain outflow because you have fish in the Delta and 24 you need to take an action the way -- I believe the way 25 Reclamation has reacted in the past, because it is more CAPITOL REPORTERS (916) 923-5447 11506 1 expeditious to reduce exports to gain additional outflow 2 they have chosen to do that, rather than make reservoir 3 releases for in-Delta needs, because it takes a long time 4 to get that water down there. 5 If your salmon are in the river and the purpose 6 is to move salmon down the river, you may look at that 7 differently. So I think it's very, very much dependent on 8 the circumstances. And if your sole purpose is to obtain 9 outflow, where the resource is and how that resource is 10 going to react to that outflow it depends on whether you 11 make that release from reservoirs or make that export 12 constraint. 13 MR. SUYEYASU: And that type of reduced export is 14 something that can be facilitated through the use of joint 15 point of diversion because you could then make up the 16 water; is that correct? 17 MR. THABAULT: That would be what we would do is if 18 you decided to reduce export for a fishery purpose to 19 assist fish in the Delta, then you would then move to seek 20 to use that joint point of diversion at a later time when 21 their resource was at either minimal or no risk to 22 facilitate gaining those deliveries back to the projects. 23 MR. SUYEYASU: Mr. Gage, if I could return to you. 24 If the Interior opted to make reduced exports -- 25 MR. GAGE: Yes. CAPITOL REPORTERS (916) 923-5447 11507 1 MR. SUYEYASU: -- in order to effectuate a fishery 2 action, is it the State's policy to not then export itself 3 the extra water that is then present in the Delta? 4 MR. BIRMINGHAM: Objection. Lacks foundation. 5 Calls for speculation. 6 C.O. STUBCHAER: I have to have the question read 7 back. 8 (Whereupon the question was read back by the Reporter.) 9 C.O. STUBCHAER: Is that a hypothetical? 10 MR. SUYEYASU: Yes, it is. 11 C.O. STUBCHAER: All right. You may answer it. 12 MR. GAGE: I believe the Department has tried to 13 cooperate in achieving fishery actions, in curtailing 14 exports along with the CVP at times and counted on making 15 up those exporting impacts later, yes. 16 MR. SUYEYASU: So it is the State's policy to 17 cooperate with the Department of the Interior in its 18 execution of fishery actions; is that correct? 19 MR. GAGE: I'm not here to state the State's policy. 20 I'm not sure exactly what the official policy is. 21 MR. SUYEYASU: Are you aware that the state 22 currently believes that it is authorized to divert water 23 that has been put into the stream under CVPIA Section 24 3406(b)(2)? 25 MR. BIRMINGHAM: Objection. Relevance. CAPITOL REPORTERS (916) 923-5447 11508 1 MR. SANDINO: Also, objection based on relevance. 2 When he says "the State," I'm not sure who he's referring 3 to, if he could make it more precise on state policy. 4 C.O. STUBCHAER: Could you describe the relevance to 5 the issue before us in Phase VI, please, Mr. Suyeyasu, and 6 then define which element of the State, the state parks 7 along the river, or the State Water Project, or what? 8 MR. SUYEYASU: The relevance is that the Board here 9 is going to have to adopt some type of order and 10 constraints upon their use of the joint point of 11 diversion. The Interior is already in the process of 12 dedicating water to the environment under Section 13 3406(b)(2) of the CVPIA. It is our understanding that 14 it's the State's policy that it has the right to then 15 divert the water that the feds have put in the streams to 16 benefit the fisheries. 17 I'm trying to understand what the State's 18 position is with regard to joint point of diversion 19 actions to benefit with fisheries and whether or not they 20 are going to go along with those, or then just turn around 21 and export the water. If they are, I would like some type 22 of restriction on their use of the joint point of 23 diversion to prevent that from happening. 24 C.O. STUBCHAER: Mr. Sandino. 25 MR. SANDINO: Mr. Chairman, this is a matter that is CAPITOL REPORTERS (916) 923-5447 11509 1 being litigated right now. And the Department of Water 2 Resources has had already some interest in this 3 litigation. We don't believe this is the appropriate 4 forum to have this question decided. 5 C.O. STUBCHAER: Mr. O'Laughlin. 6 MR. O'LAUGHLIN: My point goes along with 7 Mr. Sandino's, is that what Mr. Suyeyasu is calling for is 8 a legal conclusion and a speculation on behalf of the 9 witness as to whether or not when the Bureau releases 10 water from facilities pursuant to CVPIA 3406(b)(2) as to 11 whether or not that water is for project purposes, or 12 whether or not once the water hits the stream that becomes 13 abandoned water. 14 So rather than get into this whole question of 15 whose water that is as it moving down the stream, calling 16 for a legal conclusion on behalf of these witnesses as 17 well as policy statements, I would move to object to that 18 question. 19 C.O. STUBCHAER: Mr. Birmingham? 20 MR. BIRMINGHAM: I have nothing to add. 21 C.O. STUBCHAER: Mr. Sandino, would you advise your 22 witness not to respond because of the litigation? 23 MR. SANDINO: I'm not going to advise him not to 24 respond, but I'm going to request that the Board finds 25 that this question is not appropriate for this hearing for CAPITOL REPORTERS (916) 923-5447 11510 1 the reasons that I stated earlier, for the reasons 2 Mr. O'Laughlin stated as well. And I would ask that the 3 question -- my objection be sustained. 4 MR. BIRMINGHAM: Mr. Stubchaer, I also observed a 5 few moments Mr. Gage said he didn't know what the policy 6 for the State of California is. 7 This question relates to the policy which 8 Mr. Gage says he cannot articulate. And for that reason I 9 would object to the question on the grounds that it calls 10 for speculation. 11 C.O. STUBCHAER: Mr. Jackson? 12 MR. JACKSON: Yes, Mr. Stubchaer, I think this is a 13 very important point on the use of the joint point of 14 diversion, because the State often requires that upstream 15 diverters restrict their diversion under orders for 16 instream flows, thereby taking water from an upstream 17 senior water rights diverter. 18 If the joint point is going to increase the 19 amount of water, this becomes abandoned water. And the 20 joint point is going to increase the amount of water that 21 the projects can take. Then, this is very critical in 22 regard to using the fish flows to take water from senior 23 water rights to junior water rights. And I would very 24 much like to hear the answer: 25 What is the State going to do? CAPITOL REPORTERS (916) 923-5447 11511 1 C.O. STUBCHAER: Mr. O'Laughlin. 2 MR. O'LAUGHLIN: Just one last point, Mr. Jackson 3 makes the point very well and even this Chair has ruled 4 previously in the past, I think this is wonderful argument 5 and it makes great sense. And if Mr. Suyeyasu wants to 6 put it in his closing brief I think he already knows -- he 7 knows about the litigation. He knows about the facts 8 surrounding the litigation. He knows about the dispute 9 that's ongoing. 10 If he wants to make a legal argument in his 11 closing brief about the effects of abandoned water versus 12 non-abandoned water and its effects on joint point and 13 CVPIA 3406(b)(2), I think that's great. But that's not 14 proper cross-examination of the witnesses to ask legal 15 conclusions in regards to whether or not 3406(b)(2) water 16 that's been released is abandoned water for purposes of a 17 water right. 18 C.O. STUBCHAER: Mr. Birmingham? 19 MR. BIRMINGHAM: Nothing to add. 20 C.O. STUBCHAER: Mr. Suyeyasu? 21 MR. SUYEYASU: I do understand that this matter is 22 currently in litigation as to the State's rights to divert 23 that water, I'm not sure that that particular matter is in 24 litigation, forgive my ignorance there. 25 But I know the general (b)(2) question is in CAPITOL REPORTERS (916) 923-5447 11512 1 litigation. And I think there has been some lessons 2 learned in the implementation of (b)(2) that this Board 3 could use in moving forward with joint point of diversion 4 so that we don't make the same mistake and end up in the 5 same litigation that (b)(2) is in. And the fact that 6 that's in litigation doesn't mean it shouldn't be 7 discussed here. 8 C.O. STUBCHAER: Well, we're going to go off the 9 record for a moment. 10 (Off the record from 3:29 p.m. to 3:32 p.m.) 11 C.O. STUBCHAER: Back on the record. If the witness 12 knows the answer, he may answer. If he doesn't know the 13 answer or can't answer, he may so state. 14 MR. GAGE: I believe I can only answer that to the 15 level that I answered previously: That the State has thus 16 far participated fully in trying to implement fishery 17 measures in the Delta. 18 MR. SUYEYASU: Thank you. Just one last set of 19 questions. Mr. Renning, you stated in your testimony that 20 one of the purposes of the joint point of diversion is 21 to -- let me quote you, "To regain lost water supplies." 22 Is that correct? 23 MR. RENNING: Yes. 24 MR. SUYEYASU: Now, in your opinion who has lost 25 these water supplies? CAPITOL REPORTERS (916) 923-5447 11513 1 MR. RENNING: Who has lost these water supplies? 2 MR. SUYEYASU: Yes. 3 MR. RENNING: Well, if you want to put a face on it, 4 it's the federal water users, they've lost water supplies. 5 MR. SUYEYASU: Now, prior to the implementation -- 6 prior to the adoption of the Central Valley Project 7 Improvement Act, the implementation of the Endangered 8 Species Act in the Delta and the adoption of the 1995 9 Water Quality Control Plan, approximately what were the 10 annual average deliveries of the Central Valley Project to 11 its customers? 12 MR. RENNING: I simply don't have those figures 13 available to me, but I think it's -- but I can say that 14 since the enactment of CVPIA, Endangered Species Act and 15 the 1995 Water Quality Control Plan that deliveries have 16 been lower than they would have otherwise been in the 17 absence of those actions. 18 MR. SUYEYASU: Do you know what the average annual 19 deliveries are right now, approximately? 20 MR. RENNING: No, I don't have that figure. 21 MR. SUYEYASU: Do you know what the Central Valley 22 Project's total yield is at this point? 23 MR. RENNING: Well, that's a real tough question and 24 there have been a number of reports and studies and there 25 are different ways to look at that question and CAPITOL REPORTERS (916) 923-5447 11514 1 different -- as I stated before different definitions 2 involved with what "yield" is. And I simply can't give 3 you a quick answer to that question. 4 MR. SUYEYASU: Would it be possible to give me an 5 approximate range in your mind of where that number sits? 6 MR. RENNING: Of the yield of the Central Valley 7 Project? 8 MR. SUYEYASU: Yes. 9 MR. RENNING: My guess right now is it's 10 approximately six million acre-feet per year, but that's 11 using a so-called annual delivery figure of yield rather 12 than the traditional over the dry period type of yield. 13 MR. SUYEYASU: Okay. Now, at the turn of the 14 century back in 1900, what was the yield of the Central 15 Valley Project? 16 MR. BIRMINGHAM: Objection. Assumes facts not in 17 evidence. I don't think that there's any evidence that 18 the Central Valley Project existed at the turn of the 19 century. 20 If Mr. Suyeyasu is trying to elicit what the 21 yield of the project would be during the critical periods, 22 I think he could define it more specifically. 23 C.O. STUBCHAER: I agree. Try again. 24 MR. SUYEYASU: Would you agree, Mr. Renning, that in 25 1900 the Central Valley Project did not divert any water CAPITOL REPORTERS (916) 923-5447 11515 1 because it was not in existence? 2 MR. RENNING: I would certainly accept that as a 3 fact, yes. 4 MR. SUYEYASU: And would you, also, agree that in 5 1800, the Central Valley Project yield was zero because 6 the Central Valley Project was not in existence -- 7 MR. BIRMINGHAM: Objection. 8 MR. SUYEYASU: -- is that correct? 9 MR. BIRMINGHAM: Relevance. 10 C.O. STUBCHAER: Yeah, I don't see the relevance. 11 If it wasn't in existence in 1900, it wasn't in existence 12 before 1900. And what does it have to do with joint point 13 of diversion? 14 MR. SUYEYASU: Part of -- well, the equitable reason 15 why they're coming to you to ask for authorization for 16 joint point of diversion is to seek the regaining of lost 17 water supplies, I think we need a little historical 18 context to figure out who has really lost these water 19 supplies, who has taken them from whom and where we're 20 going from there. 21 C.O. STUBCHAER: Mr. O'Laughlin. 22 MR. O'LAUGHLIN: You know it's been a long day, but 23 really this is absurd. Once again if Mr. Suyeyasu asked 24 the proper questions ahead of time, had gotten the 25 responses from the panel, he can make this in his CAPITOL REPORTERS (916) 923-5447 11516 1 argument. I think it's great closing argument, making it 2 in his closing brief. 3 But we don't need to sit here today and expect 4 the witnesses, the Board, the Board staff and everybody 5 else to listen to these absurd questions. I think if he 6 put it in his brief that the CVPIA didn't exist in 1800, I 7 don't think anybody else in this room is going to object. 8 I would prefer that we move on. 9 C.O. STUBCHAER: I'm going to ignore the 10 statement -- 11 MR. O'LAUGHLIN: I'm sorry, with the exception of 12 Mr. Nomellini I would say that would be true. 13 C.O. STUBCHAER: I'm going to ignore the 14 characterization as "absurd questions." But I will say, 15 Mr. Suyeyasu, that there was extensive questioning on when 16 the CVP project began, what the deliveries were over the 17 years, things like that are part of the record. 18 So to a certain extent the questions that you've 19 been asking have been asked and answered. But if you have 20 more questions that are closer to the present time that 21 are relevant -- 22 MR. SUYEYASU: I will forego. 23 C.O. STUBCHAER: You will forego? 24 MR. SUYEYASU: Yes. 25 C.O. STUBCHAER: Sorry, you got me talking too much. CAPITOL REPORTERS (916) 923-5447 11517 1 MR. SUYEYASU: No, that's all right. 2 C.O. STUBCHAER: Okay. 3 MR. SUYEYASU: That's the end of my questions. 4 C.O. STUBCHAER: Okay. Thank you, Mr. Suyeyasu. 5 Mr. Birmingham. 6 MR. BIRMINGHAM: It appears that we will not 7 complete this panel this afternoon. I have a witness 8 here, Steve Ottemoeller, who is -- 9 C.O. STUBCHAER: Well, all the examiners have 10 completed their examination of this panel. 11 MR. BIRMINGHAM: My understanding was there was 12 going to be redirect. If there's redirect then there's -- 13 C.O. STUBCHAER: Well, Mr. Birmingham, you're 14 getting ahead of what I was thinking about. I was going 15 to ask Mr. Turner if the whole panel was involved in the 16 redirect. 17 MR. TURNER: It's my understanding that I have one 18 question on redirect, which has been the delayed 19 presentation that I had offered to make before. 20 I'm -- I don't know, Mr. Campbell and 21 Mr. Sandino, you folks have redirect that you're going to 22 be presenting? 23 MR. CAMPBELL: I wanted to consult with the two of 24 you for about two minutes on that very point. 25 MR. SANDINO: I agree with that suggestion that CAPITOL REPORTERS (916) 923-5447 11518 1 after the Board, the Board staff has had an opportunity to 2 ask their questions, if any, if you would give us just a 3 minute to confer with the panel members, we can maybe 4 confine, or limit our redirect -- 5 C.O. STUBCHAER: Yes -- 6 MR. SANDINO: -- or maybe not have any redirect. 7 C.O. STUBCHAER: All right. You're saying as far as 8 the State is concerned. And as far as scheduling the 9 redirect, even if we got the redirect in today, there 10 would be a long gap between today and when the 11 cross-examination would begin. 12 So the redirect could be kind of stale, I suppose 13 you could take that both ways. But we were thinking that 14 we would defer the redirect until next Tuesday, but we do 15 have to get to the staff and the Board Members on the 16 cross-examination. 17 Staff have any questions for this panel? 18 MR. HOWARD: Mr. Chairman, the only question I had 19 had to do with the description Mr. Renning had regarding 20 Alternative 9. And I understand that that's going to be 21 the subject of redirect. 22 However, I did hear Mr. Sandino say that there 23 might not be any so I guess I would like to know whether 24 or not I should address my questions or wait for the 25 redirect. CAPITOL REPORTERS (916) 923-5447 11519 1 C.O. STUBCHAER: It is my understanding that 2 Mr. Turner was going to put Mr. Renning on for redirect. 3 And then Mr. Sandino wasn't certain if there was going to 4 be DWR redirect. Is that correct? 5 MR. SANDINO: That's correct. 6 C.O. STUBCHAER: Okay. 7 MR. HOWARD: That's fine I'll just wait. 8 C.O. BROWN: I have no questions. 9 C.O. STUBCHAER: All right. Now, Mr. Birmingham. 10 MR. BIRMINGHAM: Thank you. I have one witness 11 Steve Ottemoeller who is a former employee of Westlands, 12 is no longer employed by Westlands, is now the general 13 manager of another irrigation district. 14 He has a Board meeting on Tuesday. And I wonder 15 if we could try and get him on this afternoon. His 16 testimony is very, very bland. I'm sure there will be no 17 cross-examination. 18 C.O. STUBCHAER: Sure. Sure. I'm going to have to 19 leave shortly for a meeting over Cal-EPA. Mr. Brown will 20 be the Hearing Officer during this period. And it will be 21 up to him to decide how far to go this afternoon. 22 Mr. Nomellini. 23 MR. NOMELLINI: I made great strides getting along 24 with Mr. Birmingham this afternoon since we patched up our 25 little difficulty on the evidence, but there's no way I CAPITOL REPORTERS (916) 923-5447 11520 1 think that we can conduct this direct examination and 2 complete the cross-examination within 15 minutes. 3 And I happen to have an evening meeting tonight 4 involving the Delta water users. I would, otherwise, be 5 more accommodating. So I would ask that Mr. Birmingham, 6 if he has a witness problem, be allowed to bring him back 7 on a day in the future when it's convenient rather than 8 try to complete this this afternoon. 9 MR. BIRMINGHAM: Then may I, just for purposes of 10 presentation, may I plan on bringing my entire panel here 11 on Wednesday? 12 C.O. STUBCHAER: Yeah, you certainly may plan on 13 bringing them. 14 C.O. BROWN: That was good. 15 MR. BIRMINGHAM: The concern that I have, 16 Mr. Stubchaer, is I don't want -- we are the next party in 17 the order of presentation and I don't want to delay the 18 hearing. 19 C.O. STUBCHAER: You're the next party after 20 Delta-Mendota Water Authority. 21 MR. BIRMINGHAM: Delta-Mendota and Westlands are 22 going to present one panel of three witnesses. 23 C.O. STUBCHAER: Oh, I didn't get that. Okay. 24 Well, why Wednesday rather than Tuesday? 25 MR. BIRMINGHAM: Because Mr. Ottemoeller, who is one CAPITOL REPORTERS (916) 923-5447 11521 1 of our witnesses, has to be in Madera on Tuesday. 2 C.O. STUBCHAER: Let's see about the other parties 3 who are going to present cases in chief, Environmental 4 Defense Fund? 5 MR. SUYEYASU: I believe we can be here Wednesday 6 morning -- Tuesday morning. 7 C.O. STUBCHAER: Tuesday, all right. 8 County of Trinity? 9 MR. JACKSON: I can find out, I don't know. 10 C.O. STUBCHAER: Tri-Valley, et al.? 11 MR. DOOLEY: We could be here Tuesday or Wednesday 12 C.O. STUBCHAER: All right. We will schedule 13 Environmental Defense Fund and Tri-Valley, et al., on 14 Tuesday. San Luis and Delta Mendota and Westlands 15 on Wednesday. County of Trinity, either day I guess. 16 MR. JACKSON: Either day. What we may -- 17 C.O. STUBCHAER: Unless you have a preference. 18 MR. JACKSON: We may be able to put it in by 19 stipulation. 20 C.O. STUBCHAER: All right. 21 MR. JACKSON: Last time it was Mr. Birmingham and I 22 who spent days and we tried stipulating and it seems to 23 work nicely. 24 C.O. STUBCHAER: Well, you have a few days to work 25 it out and tell us then. CAPITOL REPORTERS (916) 923-5447 11522 1 MR. JACKSON: Okay. 2 MR. HERRICK: What about the rest of us, how do you 3 cross stipulate -- 4 C.O. STUBCHAER: Now, with regard to the redirect, 5 the reason I was asking about that is it seems to me that 6 those panel members who aren't involved in the redirect 7 testimony can be excused, because they would not be 8 subject to recross-examination. 9 MR. TURNER: Right. 10 C.O. STUBCHAER: But that will be up to you to 11 determine who you need for your redirect, of course. 12 All right. Anything else, staff? 13 Mr. Sandino. 14 MR. SANDINO: Mr. Stubchaer, maybe this would be an 15 appropriate time to have clarified: When Mr. Kjelson is 16 brought back later in a couple weeks, were the 17 expectations that Mr. Ford would also be present? What 18 was the Chair's decision on that? 19 MS. LEIDIGH: There wasn't any. 20 C.O. STUBCHAER: Well, I wasn't real clear on that. 21 If Mr. Ford relies on Mr. Kjelson's December data, 22 perhaps, he ought to be here. But if it's just 23 Mr. Kjelson's report with the December data that's been 24 revised and no one else relied on the revised part of it, 25 then I wouldn't think they need to be here. CAPITOL REPORTERS (916) 923-5447 11523 1 MR. SANDINO: We believe that Mr. Ford has presented 2 his testimony. 3 C.O. STUBCHAER: Yes. 4 MR. SANDINO: And everyone has had an opportunity to 5 cross-examine him. The only one who hasn't presented his 6 testimony is Mr. Kjelson. 7 MR. BIRMINGHAM: And Mr. White. 8 MR. CAMPBELL: That's correct. 9 C.O. STUBCHAER: Yes. 10 MR. CAMPBELL: Yeah, we will make Mr. White 11 available. 12 C.O. STUBCHAER: Mr. White will be available. 13 C.O. STUBCHAER: Right. Okay. Anything else? 14 MR. CAMPBELL: What about Mr. Thabault, is he going 15 to be available? 16 MR. THABAULT: I'm not available on the 24th. 17 C.O. STUBCHAER: Well, and there's a question of 18 whether you relied on it. 19 Mr. Turner. 20 MR. TURNER: I just had one further question for 21 some more estimate expectations. My primary witness for 22 Phase VII is -- does not live in California anymore. And 23 so I was trying to get some idea when we were going to be 24 commencing Phase VII. 25 It sounded to me like that may be commencing CAPITOL REPORTERS (916) 923-5447 11524 1 like -- we have two days next week. And it might be 2 Tuesday of the following week. Would that be a pretty 3 reasonable expectation, would you think? I assume we'll 4 be picking up on Phase VII right after we complete this, 5 correct? 6 C.O. BROWN: Two days next week will be taken, yes, 7 Mr. Turner, I think you're on schedule. 8 MR. TURNER: Okay. 9 MS. LEIDIGH: Well -- 10 C.O. BROWN: Wait. Counsel, what's the problem? 11 MS. LEIDIGH: Ms. Whitney after next week is -- the 12 Wednesday after that is the 24th which is when Mr. Kjelson 13 would be coming. 14 MR. TURNER: Right. 15 MS. LEIDIGH: So it's possible that Tuesday the 23rd 16 might be all right. 17 C.O. BROWN: That's what he said. 18 MR. TURNER: I was assuming the 23rd might be when 19 we would start it. 20 MS. LEIDIGH: Yeah, there was a little confusion as 21 to what day of the week it was. 22 C.O. BROWN: That sounds right. Any other 23 proceedings before we adjourn? All right, we stand 24 adjourn -- wait. 25 MR. SANDINO: Were you going to give us an CAPITOL REPORTERS (916) 923-5447 11525 1 opportunity to talk? We may be able to make a decision 2 about redirect and ask our redirect questions in ten 3 minutes. 4 C.O. BROWN: All right. 5 MR. SANDINO: If you'll give us one minute off the 6 record. 7 C.O. BROWN: Yes, sir, you may have that. We're off 8 the record for one minute. 9 (Off the record from 3:48 p.m. to 3:50 p.m.) 10 C.O. BROWN: Okay. Come back to order, please. 11 Mr. Sandino. 12 MR. SANDINO: Mr. Brown, we've huddled and I think 13 we've decided that the Department of Water Resources and 14 the Department of Fish and Game doesn't have any redirect 15 questions. Mr. Turner would like to ask just one question 16 that we spoke about earlier -- 17 C.O. BROWN: All right. 18 MR. SANDINO: -- to Mr. Renning. 19 C.O. BROWN: Mr. Turner, you're up. 20 ---oOo--- 21 REDIRECT OF THE DEPARTMENT OF THE INTERIOR 22 BY JAMES TURNER 23 MR. TURNER: Thank you, Mr. Brown. 24 Mr. Renning, I understand that you had some 25 supplemental information that you wanted to provide in CAPITOL REPORTERS (916) 923-5447 11526 1 connection with your previous statements with regard to 2 Alternative 9; is that correct? 3 MR. RENNING: Yes, that's right. 4 MR. TURNER: Would you, please, go ahead and do so. 5 MR. RENNING: Yesterday I made some comments about 6 the joint point of diversion studies and the portrayal of 7 the results of Alternative 9 looked funny in Exhibit 10-D. 8 This was the case of talking before I did my thinking, the 9 results as shown are correct. 10 Alternative 9, or the alternative with VAMP -- 11 the VAMP in it has export restrictions that the other 12 alternatives do not have. The summary of the results of 13 the joint point of diversion operation studies show the 14 comparison against Alternative 2. 15 Alternative 9 shows a smaller increase in 16 deliveries than Alternative 4, 5 or 6. That is because 17 those alternatives do not have the VAMP export 18 restrictions. If Alternative 9 was compared against a 19 base study with VAMP, the increase in deliveries due to 20 the joint point of diversion would be the same or very 21 similar to Alternative 5 or 6. 22 This situation can be seen in Exhibit 11-M which 23 shows that for a similar comparison Alternative 9 would 24 need to be compared against Run 622A, that is not one of 25 the alternatives included in the Board's EIR, but CAPITOL REPORTERS (916) 923-5447 11527 1 nonetheless, that would be the appropriate -- that would 2 be the appropriate study to which such a comparison would 3 be made. 4 Also, Exhibit 10-C, would show similar values for 5 the use of the joint point of diversion for Alternatives 4 6 and 5 and for -- Alternative 4, 5 and 6 and for 7 Alternative 9. 8 You would conclude from that that the increases 9 in deliveries for each of those alternatives would be 10 approximately the same. And the problem that I had was 11 simply that I was making a comparison against the wrong 12 alternative. 13 That concludes my testimony. 14 C.O. BROWN: Is that it, Mr. Turner? 15 MR. TURNER: Thank you, Mr. Renning. 16 Yes, there would be nothing further by way of 17 redirect. 18 C.O. BROWN: Let's see by a show of hands on who 19 would like to recross on this. All right, we'll go in 20 random order. 21 Mr. Jackson. 22 ---oOo--- 23 CROSS-EXAMINATION OF THE DEPARTMENT OF RECLAMATION 24 BY THE REGIONAL COUNCIL OF RURAL COUNTIES 25 BY MICHAEL JACKSON CAPITOL REPORTERS (916) 923-5447 11528 1 MR. JACKSON: Thank you. Would you put up the 2 first -- Mr. Renning, see if I understand this completely, 3 this chart is Exhibit -- 4 MR. RENNING: 10-D. 5 MR. JACKSON: 10-D? 6 MR. RENNING: D as in dog. 7 MR. JACKSON: D as in dog. And this is a comparison 8 to what CVP and SWP deliveries would be compared to 9 Alternative 2? 10 MR. RENNING: Correct. 11 MR. JACKSON: Which is no use of the joint point of 12 diversion? 13 MR. RENNING: Yes. 14 MR. JACKSON: You indicate that Alternative 9 is 15 comparable to Alternative 6? 16 MR. RENNING: No. If you were to compare 17 Alternative 9 to a similar operation study which did not 18 have joint point of diversion in it, but had all of the 19 other -- all other assumptions were the same, that study 20 would be DWR Run 622A. 21 MR. JACKSON: Then, is it fair to say that the 22 difference between Alternative 9 and the study you're 23 referencing indicates that a very large proportion of the 24 amount of water diverted by the use of the joint point of 25 diversion will take place during the pulse flow period in CAPITOL REPORTERS (916) 923-5447 11529 1 the spring? 2 MR. RENNING: No. That's not accurate. 3 MR. JACKSON: Well, if everything else is comparable 4 and the VAMP results in approximately 150,000 acre-feet 5 less use of the joint point of diversion -- 6 MR. RENNING: No, that's -- no, that's not what I'm 7 saying. If you look at graph -- at Exhibit 10-E, you'll 8 see that in Alternatives 4, 5, and 6 use of the joint 9 point of diversion is just about the same as in 10 Alternative 9. 11 MR. JACKSON: Mr. Brown, may I go back -- I mean 12 this came quickly. Can I go get his testimony? 13 C.O. BROWN: Yes, sir, you may. 14 MR. JACKSON: Mr. Renning, do you have your 15 testimony in front of you, Page 3? 16 MR. RENNING: I have it here someplace. Yes, I have 17 it here now. 18 MR. JACKSON: Calling your attention to the -- about 19 three quarters of the way down in the section on Page 3 20 entitled "Water Supply and the Use of the Joint Point of 21 Diversion," you will find the words, 22 (Reading): 23 "The increase in deliveries under Alternative 5 24 through 9 are 135,000, 99,000, 153,000, 247,000 25 and 45,000 acre-feet, respectively." CAPITOL REPORTERS (916) 923-5447 11530 1 Do you see that? 2 MR. RENNING: That's right. 3 MR. JACKSON: Now, Number 9 is the 45,000 acre-feet; 4 is that correct? 5 MR. RENNING: Yes, that's right. These figures are 6 comparisons to Alternative 2. 7 MR. JACKSON: And in terms of the comparison to 8 Alternative 2, which is no use of the joint point, 9 Alternative 9, the VAMP alternative, allows only 45,000 10 acre-feet, correct? 11 MR. RENNING: No. That's what the problem here is. 12 If you were to -- if you wanted to make the proper 13 assessment of what the value of the joint point of 14 diversion was in Alternative 9, you would need to make 15 that comparison against DWR Run 622A. And it would show 16 that the increase in deliveries would be approximately the 17 same as that for Alternatives 4, 5, or 6. 18 MR. JACKSON: Well, what are you comparing the 19 numbers in this sentence against for the other 20 alternatives? 21 MR. RENNING: Alternative 2. 22 MR. JACKSON: Well, why would you compare 23 Alternative 2 -- or why would you compare all of the 24 alternatives to Alternative 2 and the VAMP alternative to 25 something else entirely? CAPITOL REPORTERS (916) 923-5447 11531 1 MR. RENNING: Well, the problem that I had yesterday 2 was I looked at that graph, and it's been sometime since I 3 prepared my testimony, and that alternative -- pardon me, 4 Exhibit 10-D. And it struck me that the amount of 5 increase for Alternative 9 was way too low. And the 6 reason for that is that it's being compared against 7 Alternative 2. 8 MR. JACKSON: Well, so are all of the other 9 alternatives as well, aren't they? 10 MR. RENNING: Right. But Alternative 9 has a 11 different set of assumptions in it than the other 12 alternatives have. 13 MR. JACKSON: And what assumptions make it 14 different? 15 MR. RENNING: The assumption that the VAMP is in 16 place. 17 MR. JACKSON: And what about the VAMP results in 18 such a low use of the joint point of diversion? 19 MR. RENNING: Oh, it doesn't result in a low use of 20 the joint point of diversion, but the use of the joint 21 point of diversion is just about the same as shown in 22 Exhibit 10-E. 23 MR. JACKSON: But the increases to the contractors 24 are much less than in the other alternative, correct? 25 MR. RENNING: As compared against Alternative 2. CAPITOL REPORTERS (916) 923-5447 11532 1 MR. JACKSON: Or as compared under the same 2 standards as you compared all of the other alternatives to 3 Alternative 2? 4 MR. RENNING: Yes, if you make that very strict 5 comparison here. But what I'm getting at is that Exhibit 6 10-D is somewhat misleading in showing the utility of the 7 joint point of diversion. That's the point I'm trying to 8 make. 9 MR. JACKSON: Well, obviously, if you compare five 10 apples and one orange, you're going to have sort of a 11 different view. 12 MR. RENNING: That is exactly right. And 13 Alternative 9 is the orange and the apple the barrel. 14 MR. JACKSON: Well, I guess what I'm trying to find 15 out is why is it an orange instead of an apple? 16 MR. RENNING: Because it is the only alternative 17 that assumes that VAMP is in place. 18 MR. JACKSON: And, again, the difference in VAMP is 19 that there is one 30-day period in which you have 20 different export standards? 21 MR. RENNING: Yes. 22 MR. JACKSON: Therefore, the difference reflected 23 must happen within that 30-day period? 24 MR. RENNING: No. 25 MR. JACKSON: Well, can you explain to me why not? CAPITOL REPORTERS (916) 923-5447 11533 1 MR. RENNING: Because what you would need to do is 2 to compare Alternative 2 and Run 622A. And you would see 3 that there's a difference in CVP deliveries between those 4 two runs. 5 Then, when you impose the joint point of 6 diversion operation you would see that the increase 7 between 622A and Alternative 9 and the increase between 8 Alternative 2 and Alternative 5 are the same. 9 MR. JACKSON: Why do you compare in the VAMP to 10 Alternative 5 instead of Alternative 2? 11 MR. BIRMINGHAM: Objection. Misstates the evidence. 12 MR. JACKSON: Well -- 13 C.O. BROWN: Mr. Jackson. 14 MR. JACKSON: Yes, sir? 15 C.O. BROWN: Do you have a response to the 16 objection? 17 MR. JACKSON: I don't think I misstated the 18 evidence. 19 C.O. BROWN: It's overruled. 20 Go ahead and answer the question, if you know it. 21 MR. RENNING: The comparison -- all of these 22 alternatives have similar assumptions as to the standards 23 and operation rules that are in place for the Central 24 Valley Project and the State Water Project. 25 MR. BIRMINGHAM: Can the record reflect that the CAPITOL REPORTERS (916) 923-5447 11534 1 alternatives that the witness is referring to are 2 Alternatives 2, 3, 4, 5, 6, 7 and 8 on D.O.J. Exhibit 3 11-M? 4 C.O. BROWN: Thank you, Mr. Birmingham. Let the 5 record so reflect. 6 MR. RENNING: And Alternative 9 has something 7 different in place, VAMP. And Alternative 622A has VAMP 8 in place. And if you compare 622A with Alternative 9 9 regarding CVP deliveries you're going to get the same 10 answer as if you compare Alternative 2 with Alternative 5. 11 That's the point I'm trying to make. 12 MR. JACKSON: All right. Now, let's go back to the 13 original runs. On this chart in front of us, you have two 14 different runs. One that you use for the joint point of 15 diversion, Alternative 9, which is Run 622A and all of the 16 rest of the alternatives are compared to Run 468; is that 17 correct? 18 MR. RENNING: No, they're compared to Run 469. 19 MR. JACKSON: All right. 20 MR. RENNING: Alternative 2. 21 MR. JACKSON: Now, in alternative -- the difference, 22 then, between Run 622A and Alternative 2 is that in 23 writing below 622A it says "Bay-Delta Plan is 24 implemented." Correct? 25 MR. RENNING: "Bay-Delta Plan is implemented, CAPITOL REPORTERS (916) 923-5447 11535 1 Vernalis objectives met by VAMP, New Melones Interim 2 Operation Plan in place." 3 MR. JACKSON: Let's go back -- 4 C.O. BROWN: Hold that thought just a minute, 5 Mr. Jackson. 6 Vicky, what do you have? 7 MS. WHITNEY: I'd like to ask a question that I 8 think might speed this up. Mr. Jackson's questions are 9 assuming that all of the other assumptions are the same 10 other than the exports. 11 Mr. Renning, can you tell us whether there are 12 other assumptions that are different between the studies, 13 for instance, the last line in the box that says "622A"? 14 MR. JACKSON: "NMIOP in place." 15 C.O. BROWN: Thank you, Mr. Jackson. 16 MS. WHITNEY: And what effect that has on Stanislaus 17 River operations? 18 MR. RENNING: Yes, the operations that are assumed 19 in place for this run are the current New Melones Interim 20 Operation Plan. In these runs -- the other runs 2 through 21 8 the earlier version of the New Melones Interim Operation 22 Plan was in place. 23 MR. JACKSON: So what we have, in effect, is you're 24 showing the drop in the ability to use -- the drop to 25 45,000 acre-feet is caused by the New Melones Interim CAPITOL REPORTERS (916) 923-5447 11536 1 Operating Plan? 2 MR. RENNING: No. 3 MR. JACKSON: Let's go back to Run 468 and Run 6 -- 4 excuse me, Run 469 and 622A. In both of them we assume 5 that the Bay-Delta Plan is implemented, correct? 6 MR. RENNING: Yes. 7 MR. JACKSON: In joint point Alternative 2 we assume 8 that we're adding water from reservoirs south of the Delta 9 to meet Vernalis salinity. Correct? 10 MR. RENNING: That's right. 11 MR. JACKSON: And in Run 622A we do not add water 12 from reservoirs south of the Delta to meet Vernalis 13 salinity? 14 MR. RENNING: Yes. That's right. 15 MR. JACKSON: Instead of that, we put NMIOP in 16 place? 17 MR. RENNING: You have -- 18 MR. JACKSON: The New Melones Interim Operating 19 Agreement? 20 MR. RENNING: That's right. 21 MR. JACKSON: So what we're seeing, then, is that 22 New Melones Interim Plan results in less deliveries to 23 contractors south of the Delta? 24 MR. RENNING: No. Alternative 9 -- I'm sorry. This 25 run would show that as compared to Alternative 2 there CAPITOL REPORTERS (916) 923-5447 11537 1 were less deliveries made to CVP contractors south of the 2 Delta. 3 MR. JACKSON: Yes, sir. And that is a function of 4 the New Melones Interim Operating Plan being in 5 Alternative 9? 6 MR. RENNING: No. It's a function of VAMP. VAMP 7 has export restrictions. 8 MR. JACKSON: During only one period of the year? 9 MR. RENNING: Right. 10 MR. JACKSON: 30 days? 11 MR. RENNING: Yes. 12 MR. JACKSON: And you indicated that that isn't the 13 cause of the loss of most of the water that would be 14 available under the other alternatives -- 15 MR. RENNING: That's not the cause of the loss of 16 the water. Your question earlier implied that the cause 17 of the loss of water was the lack of the use of the joint 18 point of diversion during the pulse flow period, that is 19 not right. 20 MR. JACKSON: All right. There's a small amount of 21 that? 22 MR. RENNING: There is no use of the joint point of 23 diversion during the pulse flow period, because both 24 projects are under export restrictions at that time. 25 MR. JACKSON: So, then, the loss of the water that CAPITOL REPORTERS (916) 923-5447 11538 1 we're talking about, the difference between the other 2 alternatives and Alternative 9 is a result not of the VAMP 3 but of the operation in the other 11 months out of the 4 year which is the New Melones Interim Operating Plan? 5 MR. RENNING: No. 6 MR. JACKSON: Well, then what is it then? What 7 causes the difference between Alternative 5 at 135,000 8 acre-feet per year and Alternative 9, the VAMP, of 45,000 9 acre-feet per year? 10 MR. RENNING: VAMP. 11 MR. JACKSON: But VAMP only operates for 30 days. 12 MR. RENNING: That's right. 13 MR. JACKSON: So -- and you're not pumping -- 14 MR. RENNING: We're pumping differently here than we 15 are here (indicating). 16 MR. JACKSON: So does that mean -- 17 MR. BIRMINGHAM: Pardon me. Mr. Brown, may the 18 record reflect that the first "here" -- 19 C.O. BROWN: Mr. Birmingham, go ahead -- 20 MR. BIRMINGHAM: -- that Mr. Renning referred to was 21 under Run 622A. And the second "here" that Mr. Renning 22 referred to was under JPOD Alternative 2 Run 489 as 23 depicted on D.O.J. Exhibit 11-M. 24 MR. JACKSON: 469. 25 MR. BIRMINGHAM: I don't have my reading glasses on. CAPITOL REPORTERS (916) 923-5447 11539 1 MR. JACKSON: Yeah, I don't have my either, but it's 2 469. 3 MR. RENNING: Thank you, Mr. Birmingham. 4 C.O. BROWN: Thank you. 5 MR. JACKSON: Now, what is different in the 6 assumptions of Run 469 and Run 622A? 7 MR. RENNING: Primarily VAMP. 8 MR. JACKSON: Which is VAMP is an experiment that 9 operates between -- for 30 days in the springtime? 10 MR. RENNING: And also -- it also has certain levels 11 of flow during that time and certain levels of exports 12 during that time. And the difference is in exports for 13 the reasons that there are differences in deliveries. 14 MR. JACKSON: Well, in Run 469 which is the joint 15 point of diversion Alternative 2, are you taking a 16 substantial -- I mean, you're not using joint point of 17 diversion at all? 18 MR. RENNING: No, we're not. 19 MR. JACKSON: So what causes the loss in the use of 20 the joint point of diversion in Alternative 9? 21 MR. RENNING: There is no loss. That's the point 22 I'm trying to make. 23 MR. JACKSON: Then these numbers in regard to the 24 increase in deliveries in your testimony are incorrect? 25 MR. RENNING: No. The comparison is being made CAPITOL REPORTERS (916) 923-5447 11540 1 against their own alternative. That's the point I'm 2 trying to make. That's why Exhibit 10-D is misleading in 3 that sense. 4 MR. JACKSON: Would you try one more time, because I 5 don't seem to be getting it. 6 Why are you comparing two different -- are you 7 comparing Alternative 9 to a different run than all of the 8 other alternatives? 9 MR. RENNING: Because if you want to see the effect 10 of the joint point of diversion you need to compare it 11 against a comparable run as to which the other 12 alternatives are compared. That run for Alternative 9 13 would be Run 622A. The other runs are compared against 14 Alternative 2. 15 In other words, what I'm saying is that these are 16 the apples up here, Alternatives 2 through 8 are the 17 apples. Alternative 9 is an orange. Therefore, 18 Alternative 9 needs to be compared with this orange over 19 here, Run 622A to achieve a valid comparison of the 20 utility of the joint point of diversion. 21 MR. JACKSON: The use of a different run to compare 22 Alternative 9 to does result in deliveries of only 45,000 23 acre-feet over what would be in Alternative 2, which is no 24 use of the joint point, correct? 25 MR. RENNING: That's right. CAPITOL REPORTERS (916) 923-5447 11541 1 MR. JACKSON: Is that right in the testimony? 2 MR. RENNING: Yes. That's right. 3 MR. JACKSON: Okay. So by whatever reason, there 4 will be something in VAMP that causes the south of Delta 5 exporters to get less water out of the joint point. And 6 what I'm asking is: What is it? 7 MR. RENNING: No. It's -- they're not getting less 8 water out of the joint point. They're getting less water 9 out of the VAMP. 10 MR. JACKSON: So the VAMP has an effect on south of 11 the Delta exports, in general? 12 MR. RENNING: That's right. 13 MR. JACKSON: Thank you. 14 C.O. BROWN: Mr. Birmingham. 15 MR. BIRMINGHAM: May I ask to be added to the list 16 of cross-examiners? 17 C.O. BROWN: All right. 18 MR. NOMELLINI: Can we resume this -- 19 C.O. BROWN: Mr. Jackson, are you clear on the issue 20 now? 21 MR. JACKSON: No, sir, I'm not, but I'm hoping that 22 somebody -- I'm not getting anywhere. 23 C.O. BROWN: All right. I thought, perhaps, I was 24 the only one that wasn't all that clear on it. 25 MR. JACKSON: I'm not clear on it at all. CAPITOL REPORTERS (916) 923-5447 11542 1 C.O. BROWN: It's 4:20 now. Mr. Turner, do you 2 think that you could put together an explanation on this 3 that might be clear to people here if we came back on this 4 issue? 5 It looks like we're not going to get finished 6 with it tonight. We have several cross -- recross on this 7 issue. And we can't get through tonight. We have a 8 couple people now wanting to recross, and I'm willing to 9 stay here, but we noticed it for 4:00 p.m. and we're quite 10 a bit after that and some people have some commitments. 11 So, what can you do? 12 MR. TURNER: John Renning and I will get together 13 tomorrow and we will try to put together a simplified 14 written explanation that we will be able to -- I guess 15 we're getting together again Tuesday. 16 We can just distribute it to all of the attorneys 17 and all of the parties as they come in on Tuesday and let 18 them look at that and pursue their cross-examination from 19 there if they feel it's necessary. If that would be 20 helpful. 21 C.O. BROWN: Is there any objection to that from 22 anyone? 23 MR. BIRMINGHAM: If -- 24 C.O. BROWN: Okay, Mr. Birmingham. 25 MR. BIRMINGHAM: If I agree to limit my CAPITOL REPORTERS (916) 923-5447 11543 1 cross-examination to five minutes can I finish it this 2 afternoon? 3 THE AUDIENCE: No. 4 C.O. BROWN: Mr. Birmingham, your five minutes I've 5 had experience. And I'm sorry, Mr. Ottemoeller, we were 6 not able to accommodate your schedule today. We apologize 7 for that. Usually we have been very successful in being 8 able to do that. 9 I think, Mr. Birmingham, if you don't mind, it 10 might even be better for you to have the additional 11 information when Mr. Turner gets it completed. 12 One other housekeeping rule here before we go is 13 that we have Mr. White and Mr. Kjelson scheduled for the 14 24th. It looks like the 23rd might be a better day to let 15 them finish up the direct and then you could cross on 16 that. 17 Does anyone object to that even though we 18 mentioned the 24th before? I think to keep things moving, 19 that might make more sense. All right, seeing no 20 objections to that you can plan on the 23rd to complete 21 the direct. 22 Yes, sir. 23 MR. ATLAS: Yes, Mr. Brown, I understand that the 24 United States wants to bring their first witness on Phase 25 VII on a date specific. And there was some discussion CAPITOL REPORTERS (916) 923-5447 11544 1 that it would be on the 23rd. Are we still doing that -- 2 C.O. BROWN: No, we would move that to the 24th, 3 correct? 4 MS. LEIDIGH: Well, it might even be later. 5 C.O. BROWN: Or later. 6 MR. ATLAS: I'm sorry. 7 MS. LEIDIGH: Because there might be rebuttal after 8 Mr. Kjelson testifies. 9 MR. CAMPBELL: If I may? 10 C.O. BROWN: Mr. Campbell. 11 MR. CAMPBELL: That would be assuming that Phase VI 12 ends on the 23rd. It's looking likely, but it's possible 13 that it could extend a few days further. 14 C.O. BROWN: That's about as good an answer as we 15 can give you right now. 16 MR. ATLAS: That's my question. I just wanted to be 17 sure. Are we now going to go back to the way things have 18 been running until now and that is that each phase trails 19 the one before? 20 C.O. BROWN: Yes. 21 MR. TURNER: If I could ask for clarification? 22 C.O. BROWN: Okay. Mr. Turner. 23 MR. TURNER: We're going to be continuing next 24 Tuesday and Wednesday to complete the recross and then to 25 have the other parties present -- CAPITOL REPORTERS (916) 923-5447 11545 1 C.O. BROWN: Yes. 2 MR. TURNER: -- their direct and we'll have 3 cross-examination. And then are you saying on the 23rd 4 Mr. Kjelson will be appearing for his direct testimony? 5 C.O. BROWN: Yes. 6 MR. TURNER: I see, thank you very much. 7 C.O. BROWN: Yes. Vicky, do you have all this down 8 so you can remind me? 9 MS. WHITNEY: Yes. 10 C.O. STUBCHAER: Okay. We stand adjourned. Thank 11 you very much. 12 MR. SANDINO: Mr. Brown, I'm still confused. I'm 13 sorry. 14 C.O. BROWN: Hold it, one more. 15 MR. SANDINO: I'm trying to decide what you've 16 decided. You're asking Mr. Renning to come back? Do you 17 want the entire panel to come back? 18 MS. LEIDIGH: No. 19 C.O. BROWN: No, just Mr. Renning. We're talking 20 here about recross here of just Mr. Renning. 21 MR. SANDINO: Would this be the appropriate time for 22 us to ask for the introduction of our exhibits or should 23 that wait until Tuesday? We can wait until Tuesday. 24 C.O. BROWN: That can wait. We'll wait for Tuesday 25 on your exhibits. CAPITOL REPORTERS (916) 923-5447 11546 1 MR. SANDINO: Okay. 2 C.O. BROWN: Okay. Adjourned. 3 (The proceedings concluded at 4:30 p.m.) 4 ---oOo--- 5 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 11547 1 REPORTER'S_CERTIFICATE __________ ___________ 2 3 STATE OF CALIFORNIA ) ) ss. 4 COUNTY OF SACRAMENTO ) 5 I, MARY R. GALLAGHER, certify that I was the 6 Official Court Reporter for the proceedings named herein, 7 and that as such reporter I reported in verbatim shorthand 8 writing those proceedings; that I thereafter caused my 9 shorthand writing to be reduced to typewriting, and the 10 pages numbered 11333 through 11547 herein constitute a 11 complete, true and correct record of the proceedings. 12 IN WITNESS WHEREOF, I have subscribed this 13 certificate at Sacramento, California, on this 24th day of 14 March, 1999. 15 16 ________________________________ MARY R. GALLAGHER, CSR #10749 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 11548